Asya Ruthea Bradford, V. State Of Washington

• Court: Court of Appeals of Washington
• Decided: September 30, 2024
• Docket: 85536-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 85536-1-I

Respondent, DIVISION ONE

v. UNPUBLISHED OPINION ASYA RUTHEA BRADFORD,

Appellant.

SMITH, C.J. — Asya Bradford was charged and subsequently found guilty

of second degree assault of a child, which included acts with a knife and a metal

bat. Bradford appeals and asserts that the court erred in allowing the State to

present evidence of a prior, uncharged act of violence by Bradford, and in not

providing the jury with a unanimity instruction regarding the assault charge.

Finding no error, we affirm.

FACTS

In 2019, seven-year-old I.B. was living with her father, stepmother,

brothers, and sister. In January 2019, I.B. reported to child protective services

(CPS) that her stepmother, Asya Bradford, had hit her with a belt. Bradford

admitted she had hit I.B., but stated it was merely parental discipline that had

“gone awry.”

Several months later, in September 2019, while I.B. and her family were

eating dinner, Bradford became angry with I.B. for reporting the January incident No. 85536-1-I/2

to CPS. I.B. believed Bradford was mad at her because she “was destroying the

family, and [she] wasn’t good.” Bradford was crying and yelling and told I.B., “I

will murder you.” Bradford grabbed I.B. from behind and put a knife to her throat.

I.B.’s brothers and father screamed at Bradford to stop. I.B.’s father managed to

take the knife from Bradford. There were no visible marks left on I.B. from the

knife.

After I.B.’s father took the knife from Bradford, she grabbed a metal bat

from a nearby closet. Bradford began hitting C.C., I.B.’s brother, and I.B.’s

father. Bradford then hit I.B. on the leg, but before Bradford could hit I.B. again,

C.C. covered I.B. with his body. I.B.’s father got the bat away from Bradford and

I.B. was able to get up. Eventually I.B. made it to her bedroom.

The next day at school, I.B. reported the incident to the school counselor.

I.B. told the counselor that her mom had suffocated her, put a knife to her neck,

and hit her with a metal bat. After school, I.B. was placed on a bus to her

daycare and CPS was notified. That same day I.B. spoke with a deputy from the

Snohomish County Sherriff’s Office and, later, a forensic nurse. I.B. told the

nurse that her mom “was trying to murder [her] with the knife,” but when asked to

tell the nurse more, I.B. said she wanted to “talk about something else.” The

nurse attempted to obtain photographs of some small bruises on I.B.’s back, but

I.B. refused. I.B. was worried someone would show her parents the

photographs.

In subsequent interviews, I.B. continued to express reluctance to talk

about the incident. I.B. also had slightly different variations of the incident.

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During an interview with a forensic nurse examiner, in response to a question

about a bat, I.B. stated, “[w]e don’t talk about the bat.” Only after the advocate

who had accompanied I.B. left the room did I.B. talk to the nurse. I.B. said that

her mother had gotten angry with her and held a knife to her throat and hit her in

the stomach with a metal bat.

In another interview with a child interview specialist, I.B. hesitated to

answer the specialist’s questions. I.B. worried that her dad and Bradford would

see the recording. Eventually, I.B. did describe the incident, telling the specialist

that Bradford was swinging the knife and a “little bit” of blood was on it.

Bradford was charged with second degree assault of a child. At trial, the

court allowed the State to bring in evidence of Bradford’s previous abuse of I.B.

Bradford declined a limiting instruction to the jury. In its closing argument, the

State argued that both being struck by a bat or having a knife held against one’s

neck could constitute “intentional touching or striking of another that is harmful or

offensive,” a necessary element of the charge. The jury found Bradford guilty of

second degree assault of a child.

ANALYSIS

Admission of Evidence

Bradford contends that the court erred when it admitted evidence of

previous abuse allegations against Bradford. The State asserts that the

evidence was used for other, admissible purposes and its probative value

outweighed any prejudicial effect. We agree with the State.

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This court reviews a trial court’s decision to admit evidence under ER 404

for abuse of discretion. State v. Dennison, 115 Wn.2d 609, 627-28, 801 P.2d

193 (1990). “A trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds or reasons.” State v. Sullivan, 18

Wn. App. 2d 225, 234, 491 P.3d 176 (2021).

Washington Rules of Evidence (ER) 404(b) determines the admissibility of

evidence of other crimes, wrongs or acts. It provides: Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The list of other purposes included in ER 404(b) is non-exhaustive. State v.

Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012).

Before a court can admit evidence of a prior act, it must (1) find by a

preponderance of the evidence that the misconduct occurred, (2) identify the

purpose for which the evidence is sought to be introduced, (3) determine whether

the evidence is relevant to prove an element of the crime charged, and (4) weigh

the probative value against the prejudicial effect. State v. Thang, 145 Wn. 2d

630, 642, 41 P.3d 1159, 1165 (2002).

Here, the parties do not dispute that the first prong is met. The parties

disagree regarding the evidence’s purpose, relevance, and probative value.

1. Purpose

Bradford claims the admission of allegations of previous abuse

were offered to show her propensity for committing the crime charged and,

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therefore, is inadmissible. The State contends the evidence was used for

admissible purposes, such as Bradford’s intent and motive, I.B.’s state of

mind, dynamics of the relationship, and I.B.’s credibility.

a. Motive

The evidence supports that Bradford’s prior abuse of I.B. was motive for

the current incident. "Motive" is the moving course, the impulse, the desire that

induces criminal action on part of the accused. State v. Powell, 126 Wn.2d 244,

260, 893 P.2d 615 (1995). Evidence of prior assaults or threats is admissible to

show motive. Powell, 126 Wn.2d at 260. Here, I.B. testified that the reason

Bradford was mad at her on the day of the attack was because she had “told

[CPS] . . . about the bruises and things” from the previous abuse. I.B. believed

Bradford blamed her for “destroying the family.” Because the prior abuse was a

catalyst for the current incident, evidence of the prior abuse goes to Bradford’s

motive.

b. State of Mind

The prior abuse is also related to I.B.’s state of mind. Evidence of

abuse is admissible to prove the victim’s state of mind when it is an

element of the offense. State v. Ashley, 186 Wn.2d 32, 44, 375 P.3d 673

(2016). Evidence of abuse can be helpful to show the victim reasonably

feared the defendant. Ashley, 186 Wn.2d at 45 (“It is unquestionably

reasonable . . . to conclude that a domestic violence victim would continue

to fear her tormentor, even years after the last incident of abuse.”) Here,

the jury was instructed that assault is “an act done with intent to create in

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another apprehension and fear of bodily injury, and which in fact creates in

another a reasonable apprehension and imminent fear of bodily injury.”

Because I.B.’s state of mind is relevant to the charge—it must be shown

that I.B. experienced reasonable fear—evidence of prior abuse is

admissible.

c. Credibility

Evidence of prior abuse is also admissible to support I.B.’s credibility.

When a witness gives conflicting statements about the defendant’s conduct,

evidence of past violence may be admissible to explain inconsistent accounts of

the event. State v. Gunderson, 181 Wn.2d 916, 925, 337 P.3d 1090 (2014).

Inconsistent accounts of an event can stem from the relationship between the

victim and defendant. State v. Grant, 83 Wn. App. 98, 107-08, 920 P.2d 609

(1996). “Victims . . . often attempt to placate their abusers in an effort to avoid

repeated violence, and often minimize the degree of violence when discussing it

with others.” Grant, 83 Wn. App. at 107. Understanding the dynamics of the

relationship between the victim and defendant, including past abuse, helps the

jury evaluate the credibility of a witness. Grant, 83 Wn. App. at 108 (“The jury

was entitled to evaluate [the witness’s] credibility with full knowledge of the

dynamics of a relationship marked by domestic violence and the effect such a

relationship has on the victim.”)

Here, Bradford highlighted conflicting accounts of the events, and

the State explicitly stated that I.B.’s credibility “is going to be in question.”

Evidence of the prior abuse helps explain why discrepancies occurred in

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I.B.’s statements to some of the witnesses and I.B.’s reluctance to allow

photographs. I.B. was worried someone would show the pictures to her

parents and Bradford would get mad, because that is what happened

when the prior abuse occurred. Because the occurrence of prior abuse is

being used to support I.B.’s credibility, it is admissible.

2. Relevance

In addition to identifying an admissible purpose, the State must show the

evidence is relevant before it can be admitted. State v. Lough, 125 Wn.2d 847,

861-62, 889 P.2d 487 (1995). Evidence is relevant “if the purpose of admitting

the evidence is of consequence to the action and makes the existence of the

identified fact more probable.” Powell, 126 Wn.2d at 259. When a prior history

of abuse exists against the same victim, that prior history “become[s] extremely

relevant to the case.” Grant, 83 Wn. App. at 108.

Here, the evidence of prior abuse is relevant because it tends to show

Bradford’s motive for committing the charged crime and I.B.’s reasonable

apprehension of bodily injury. The evidence also helps to explain I.B.’s

inconsistent statements regarding the assault and aids the jury in evaluating her

credibility. For these reasons, the evidence is relevant to prove an element of

the assault charge.

3. Probative Value

Finally, before evidence of a prior act can be admitted, the court must find

that the evidence’s probative value substantially outweighs its prejudicial effects.

Thang, 145 Wash. 2d at 642. When a history of abuse exists against the same

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victim, the probative value of evidence of prior abuse is high. Grant, 83 Wn. App.

at 108. The probative value of evidence used to explain a witnesses conflicting

accounts also outweighs prejudice. Gunderson, 181 Wn.2d at 925. And

evidence tending to show the defendant’s motive has substantial probative value.

State v. Arredondo, 188 Wn.2d 244, 264, 394 P.3d 348 (2017).

Here, evidence of the prior abuse goes to Bradford’s motive and explains

conflicting statements by I.B.; therefore, its probative value substantially

outweighs any prejudicial effects.

Accordingly, the trial court did not err when it admitted the evidence of

Bradford’s prior abuse. Admission of the evidence was for a purpose other than

to prove Bradford’s character; the evidence was relevant; and its probative value

outweighed its prejudicial effects.

4. Limiting Instruction

Bradford claims the court erred when it failed to provide a limiting

instruction to the jury. The State contends that no error exists because Bradford

explicitly declined a limiting instruction. We agree with the State.

If evidence of prior abuse is admitted, the party against whom the

evidence is admitted is entitled to a limiting instruction upon request. Gresham,

173 Wn.2d at 420. A court is not required to give a limiting instruction sua

sponte. State v. Russell, 171 Wn.2d 118, 122-23, 249 P.3d 604 (2011). The

lack of a limiting instruction is not a reversible error when no instruction was

requested. Russell, 171 Wn.2d at 123.

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Here, Bradford did not request a limiting instruction. In fact, Bradford

specifically declined a limiting instruction, stating “I don’t want a limiting

instruction. Even though [the court] ruled that 404(b) came in, it’s my decision

that I don’t want that.” Because Bradford declined a limiting instruction, the trial

court did not err when it did not provide one to the jury.

Unanimity Instruction

Bradford asserts that her right to a unanimous jury verdict was violated

when the State presented evidence of multiple acts to serve as a basis for one

count of criminal conduct but the court did not instruct the jury it must be

unanimous as to the specific act. The State contends the assault was a

continuing course of conduct and the court was not required to instruct the jury

that they must agree on a separate, distinct act as the basis of the count. We

agree with the State.

Whether a unanimity instruction was required is a question of law

reviewed by this court de novo. State v. Lee, 12 Wn. App. 2d 378, 393, 460 P.3d

701 (2020).

In Washington, a defendant may be convicted only when a unanimous jury

concludes that the criminal act charged in the information has been committed.

State v. Stephens, 93 Wn.2d 186, 190, 607 P.2d 304 (1980). When the State

presents evidence of multiple acts, any of which could serve as the basis for one

count of criminal conduct, the State must either elect the act that will serve as the

basis of the charge or the court must provide the jury with instructions on its duty

to unanimously agree on which underlying criminal act was established beyond a

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reasonable doubt. State v. Petrich, 101 Wn.2d 566, 572, 683 P.2d 173 (1984)

(overruled on other grounds). An election of an act or unanimity instruction is

only required where the State presents evidence of “several distinct acts.”

Petrich, 101 Wn.2d at 571. If the evidence indicates the act was a “continuing

course of conduct,” then neither an election or unanimity instruction is required.

Petrich, 101 Wn.2d at 571.

To determine whether an act is several distinct acts or a continuing course

of conduct, “the facts must be evaluated in a commonsense manner.” State v.

Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989). Courts will consider factors

such as the location, timing, subject, and intent of the act to determine whether it

is a single, continuous act or several, distinct acts. See Lee, 12 Wn. App. 2d

at 393; Handran, 113 Wn.2d at 17. Where the evidence shows conduct

occurring at one place, within a brief period of time, toward a single victim, and

with intent to accomplish a single objective, the conduct is a continuous course of

conduct. Lee, 12 Wn. App. 2d at 394. A “brief period of time” can include action

over the course of a few hours, or even weeks. State v. Crane, 116 Wn.2d 315,

330, 804 P.2d 10 (1991) (noting that an act which occurred between 3-5 p.m.

was “continuous conduct”); State v. Craven, 69 Wn. App. 581, 849 P.2d 681

(1993) (finding repeated assaults during a three-week period constituted a

continuing course of conduct).

Here, the assault against I.B. was a continuing course of conduct. Even

though a knife and a bat were both used during the assault, the incident occurred

at a single location, within a short amount of time, and arose from the same

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motive. The fact that some jurors may have believed the assault occurred with

the knife and others believed it occurred with the bat does not change application

of the continuing course of conduct. In Handran, two potential sources of an

assault occurred (kissing and hitting), but the Court did not required a limiting

instruction because the “two acts of assault were part of a continuing course of

conduct.” 113 Wn.2d at 775. Similarly, the assault on I.B. with the knife and bat

was a continuing assault; therefore, a limiting instruction was not required.

Harmless Error

Assuming that a unanimity instruction should have been given, Bradford

contends the failure to give a unanimity instruction was not harmless. The State

disagrees, claiming that even if a unanimity instruction was required, the failure

to provide one was harmless. We agree with the State.

When a unanimity instruction is required but not given, reversal is required

unless the evidence establishes the error was harmless beyond a reasonable

doubt. State v. Coleman, 159 Wn.2d 509, 512, 150 P.3d 1126 (2007). An error

is harmless where no distinguishing evidence exists between the charges, such

that “if the jury reasonably believed one incident occurred, [then] all the incidents

must have occurred.” State v. Bobenhouse, 166 Wn.2d 881, 894, 214 P.3d 907

(2009). When no conflicting evidence from witnesses exists and the defendant

offers only a general denial, “the jury ha[s] no evidence on which it could

rationally discriminate between the two incidents.” Bobenhouse, 166 Wn.2d

at 95.

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Here, the jury was presented evidence of the incident from one witness,

I.B.,1 and Bradford offered only a general denial. No evidence distinguishes

between the use of the knife and the use of the bat in the assault. Therefore,

even if the two acts were not part of a continuing course of conduct, the lack of a

unanimity instruction was harmless beyond a reasonable doubt.

Because no error occurred or any error was harmless, Bradford’s right to a

unanimous verdict was not violated.

We affirm.

WE CONCUR:

1 I.B.’s younger brother, C.C., did testify but denied the abuse. When asked about a bat, C.C. said “I don’t know anything about a bat” and said there were no bats in the home. C.C. also testified that he did not want to talk and he was “being pressured.” He said he felt like he was “going to lose somebody,” and he just wanted to “live a life with my mom” and didn’t “want anybody messing with our family.”