IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 86006-2-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION ADAM PARKER HINZE,
Appellant.
BIRK, J. — Adam Hinze appeals his conviction for rape in the second degree
and assault in the second degree, arguing the trial court erred by denying his
motion to suppress statements made before he was advised of his rights under
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
admitting evidence regarding Hinze’s marital relationship in violation of ER 404(b),
and concluding that his convictions did not constitute same criminal conduct for
sentencing purposes. Finding no error, we affirm.
I
On June 24, 2022, N.S. noticed her then-husband Hinze was deleting
messages from his phone and his Snapchat.1 N.S. believed Hinze was deleting
messages to other women and confronted him. She told Hinze she was going to
bed, went into the primary bedroom, and locked the door. After Hinze unlocked
1 “Snapchat” is a cell phone app similar to text messaging except photos
and texts sent through Snapchat disappear once they are seen by the recipient and are not preserved. No. 86006-2-I/2
the door and entered the primary bedroom twice, N.S. moved into the guest
bedroom. Hinze followed N.S. into the guest room, attempted to lie in bed next to
her, and N.S. used her feet to push him off the bed.
N.S. testified Hinze grabbed her ankles and pulled her toward him so that
her legs were on either side of his body. Hinze began choking her with one of his
hands to the point where N.S. could not breathe. While choking N.S. with one
hand, Hinze used his other hand to grab his penis and put it inside N.S.’s vagina.
After he penetrated her, Hinze placed both of his hands around N.S.’s neck, and
N.S. testified that she thought she had blacked out.
When Hinze stopped, N.S. stood up and asked Hinze if he felt “ ‘like a
fucking man now?’ ” and in response Hinze shoved N.S. to the floor, got on top of
her, and “put [his fingers] inside of [her vagina].” Hinze put one hand around N.S.’s
throat, and punched the wall next to her head with his other hand. N.S. testified
that Hinze struck her eye with his fist multiple times. After Hinze stopped punching
her, N.S. grabbed her phone, ran back into the primary bedroom to retrieve a
handgun, and called 911. Law enforcement was dispatched to the scene, and
arrested Hinze.
The State filed a second amended information charging Hinze with rape in
the first degree and assault in the second degree of N.S., both with a domestic
violence designation. As to the rape charge, the jury convicted Hinze of the lesser
included offense of rape in the second degree. The jury also convicted Hinze of
assault in the second degree. In a special finding, the jury concluded Hinze did
not commit the assault with a sexual motivation.
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At sentencing, the court determined the two convictions did not constitute
same criminal conduct. The trial court imposed 14 months of confinement for the
assault conviction and a concurrent, indeterminate sentence of 100 months to life
for the rape conviction. Hinze appeals.
II
Hinze appeals the trial court’s denial of his motion to suppress. We
conclude that at the time of the challenged statements, Hinze was not in custody
for purposes of Miranda.
A
Before trial, the State moved to admit Hinze’s pre-Miranda statements. At
a CrR 3.5 hearing, the State offered three excerpts of body-worn camera (BWC)
footage as the sole evidence, and did not call as witnesses any law enforcement
officers. Hinze did not object to the admission of the footage and the court admitted
it.
In the footage, Deputy Geoffrey Adrian walked up to the house, asked
where N.S. was, saw her walking toward him from the area of the house, and asked
her where the gun was located, to which she replied, “[I]t’s in my car.” The footage
depicts a male, later identified as Hinze, standing outside the house next to two
vehicles. Deputy Adrian handcuffed Hinze, and stated that he was “not under
arrest,” but was “detained.” After Hinze was handcuffed, another deputy walked
over and placed a hand on Hinze’s arm. Deputy Adrian asked Hinze his name and
“why are we here?”
3 No. 86006-2-I/4
Hinze replied, saying among other things, “So, we got home from a friend’s
house. And my wife got my phone—There’s—there’s a friend of mine from high
school. We have some past history.” The deputy asked what that meant, and
Hinze replied that he and the high school friend “fooled around like ten years ago,”
and she “Snapchatted” him which N.S. saw and “got defensive.” Hinze continued,
“We’d been out drinking. So it’s like I get where she’s coming from. But, one thing
turned into another and she was, you know, defens[ive] like oh, ‘Why is she, you
know, talking to you?’ and this and that.” Deputy Adrian asked Hinze to elaborate,
and Hinze explained, “[N.S.] pushed me in the bedroom. Slammed the door. I
said, you know, I’m not trying to—You know, she has done nothing wrong tonight.
If anyone has the blame, it’s me.” Hinze stated, “It escalated. You know, she put
her hands on me. We started pushing back and forth. And all of a sudden, here
we are sitting here.”
Deputy Adrian walked over to N.S., who stated she did not need medical
attention, there was a gun in her center console, and she did not want to press
charges and “just wanted him to stop.” Another deputy reiterated what N.S. told
him, that she and Hinze were in an argument earlier, Hinze got upset and started
hitting the ground, and hit her a couple of times in the face. Hinze was
subsequently read his Miranda rights and arrested.
At the CrR 3.5 hearing, the court did not advise Hinze of his right to testify
as to the circumstances surrounding the statements, nor that he could testify at the
suppression hearing without waiving his right to remain silent at trial, as required
4 No. 86006-2-I/5
by CrR 3.5(b).2 The trial court found that “the deputies’ decision to place [Hinze]
in handcuffs, while they ascertained both what had taken place and the location of
any possible weapons and if there are any other threats to safety, was not an
unreasonable circumstance.” The trial court concluded the encounter did not
amount to a formal arrest, and ruled the statements were admissible,
B
Hinze argues for the first time on appeal the CrR 3.5 hearing was “marred
by procedural irregularities” because the State did not present witness testimony
and the trial court failed to comply with the requirements of CrR 3.5(b). We
conclude Hinze may not raise this claim of error for the first time on review.
Hinze did not object in the trial court that the State presented no live witness
testimony or that the trial court failed to comply with CrR 3.5(b). Under RAP 2.5(a),
“appellate courts will generally not consider issues raised for the first time on
appeal.” State v. Williams, 137 Wn.2d 746, 749, 975 P.2d 963 (1999). RAP
2.5(a)(3) states that a party may raise for the first time on appeal a “manifest error
affecting a constitutional right.” This rule is intended to allow a reviewing court to
2 CrR 3.5(b) reads,
It shall be the duty of the court to inform the defendant that: (1) he may, but need not, testify at the hearing on the circumstances surrounding the statement; (2) if he does testify at the hearing, he will be subject to cross examination with respect to the circumstances surrounding the statement and with respect to his credibility; (3) if he does testify at the hearing, he does not by so testifying waive his right to remain silent during the trial; and (4) if he does testify at the hearing, neither this fact nor his testimony at the hearing shall be mentioned to the jury unless he testifies concerning the statement at trial.
5 No. 86006-2-I/6
correct any “serious injustice to the accused” and to preserve the fairness and
integrity of judicial proceedings. State v. McFarland, 127 Wn.2d 322, 333, 899
P.2d 1251 (1995). To determine the applicability of RAP 2.5(a)(3), we ask whether
(1) the error is truly of a constitutional magnitude, and (2) the error is manifest,
meaning the appellant can show actual prejudice. State v. J.W.M., 1 Wn.3d 58,
90-91, 524 P.3d 596 (2023).
In Williams, the court held that the “mere failure to give the CrR 3.5(b) advice
of rights is not constitutional error and [a defendant] cannot raise it for the first time
on appeal.” 137 Wn.2d at 753-54. The Supreme Court explained, “[T]he
constitution does not require a trial court to inform a defendant of his or her
constitutional right to testify at trial,” so the failure to give the CrR 3.5(b) advice of
rights would not logically be a constitutional error. Id. at 752-53. The constitutional
concern behind the CrR 3.5 hearing is the Fourteenth Amendment right “ ‘to a fair
hearing in which both the underlying factual issues and the voluntariness of [a
defendant’s] confession are actually and reliably determined.’ ” Id. at 751 (quoting
Jackson v. Denno, 378 U.S. 368, 380, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964)).
This is “intended to ward against the admission of involuntary, incriminating
statements.” Id. at 751.
Hinze seeks to distinguish Williams by arguing that there was no question
in Williams about whether the statements at issue had been given voluntarily.
Williams made the disputed statements after receiving Miranda warnings and
waiving his right to remain silent. Id. at 748. Hinze argues that his case is “more
comparable” to State v. S.A.W., 147 Wn. App. 832, 836-37, 197 P.3d 1190 (2008),
6 No. 86006-2-I/7
in which we reviewed a claimed CrR 3.5 error despite the appellant’s not having
requested a CrR 3.5 hearing or objected to the failure to hold one in the trial court.
S.A.W. was a juvenile court proceeding in which, during closing argument,
S.A.W.’s counsel argued that S.A.W.’s statements in custody had been made in a
coercive environment, but the trial judge stated that the issue of the voluntariness
of the statements was no longer before the court. Id. at 836. While it is true that
Williams did not challenge the voluntariness of his statements, the dividing line
between Williams and S.A.W. was that, in Williams, the trial court “fully assessed”
the circumstances surrounding the admission of Williams’ statements, but this did
not happen in S.A.W.3 S.A.W. 147 Wn. App. at 838-39. Rather, in S.A.W., the
trial court “did not allow [S.A.W.] to challenge the State’s use of [S.A.W.’s]
incriminating statement” and “prevented [S.A.W.] from arguing this issue at trial.”
Id. at 839. This series of events in the trial court implicated the “constitutional right
to ‘have the voluntariness of an incriminating statement assessed prior to its
admission.’ ” Id. (quoting Williams, 137 Wn.2d at 754).
In this case, Hinze had the benefit of a pretrial CrR 3.5 hearing focused on
his objections to the admissibility of his statements to the officers. Hinze’s counsel
asked the trial court to review the same footage the State had presented, arguing
it showed that Hinze was in custody. And, as this decision proceeds to review,
Hinze preserved his objection to the statements based on the constitutional
requirements of Miranda. Given this context, Hinze does not show that the trial
3 S.A.W. also indicated the statements at issue in Williams were not incriminating. 147 Wn. App. at 838.
7 No. 86006-2-I/8
court’s procedural neglect to provide the CrR 3.5(b) advice of rights in and of itself
is a constitutional error that Hinze can raise for the first time on review. 4
We also disagree with Hinze that the State’s reliance solely on the BWC
footage without any testimonial evidence, in and of itself, is reviewable under RAP
2.5(a)(3). In a CrR 3.5 hearing, the State’s evidentiary burden is to establish a
voluntary waiver of rights by a preponderance of the evidence. State v. Braun, 82
Wn.2d 157, 162, 509 P.2d 742 (1973). Hinze does not articulate a constitutional
principle limiting the nature of the evidence that the State may use to meet this
burden. However, as discussed further below, the State’s election to offer only the
BWC footage in support of its burden of proof had serious consequences for the
facts the State was able to prove.
C
Hinze argues that findings of fact 3 and 4 entered after the CrR 3.5 hearing
were not supported by substantial evidence.5
We review disputed findings of fact under a substantial evidence standard.
State v. Klein, 156 Wn.2d 102, 115, 124 P.3d 644 (2005). “Evidence is substantial
4 Citing S.A.W. and State v. Alexander, 55 Wn. App. 102, 776 P.2d 984 (1989), Hinze also argues it was error for a court to admit his statement relying only on an officer’s version of the facts. In both cases, the trial court failed to conduct a CrR 3.5 hearing and admitted the defendants’ custodial statements over an objection to the statements’ voluntariness. Alexander, 55 Wn. App. at 103; S.A.W., 147 Wn. App. at 836. These cases are distinguishable, because Hinze had the benefit of a CrR 3.5 hearing. 5 Hinze also assigns error to findings of fact 5 and 13, but provides no
argument or citation to authority on these assignments. We will not consider issues that are not supported by argument or citation to authority. RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
8 No. 86006-2-I/9
if it is sufficient to convince a reasonable person of the truth of the finding.” Klein,
156 Wn.2d at 115. We accept unchallenged findings of fact as true. State v.
Martinez, 2 Wn. App. 2d 55, 63-64, 408 P.3d 721 (2018).
Finding of fact 3 states, “Responding police officers were aware there was
at least one gun on the scene and involved in the incident, as shown by the deputy
asking ‘where’s the gun’ upon arrival.” BWC footage showed Deputy Adrian arrive
on scene and ask N.S. where the gun was located. Unchallenged finding of fact 2
states N.S. “told dispatchers that she had a gun, and had emptied it of bullets.”
Substantial evidence supports this finding of fact.
Finding of fact 4 states, “Domestic violence calls can be a higher risk
incident than other types of law enforcement call-outs.” There was no evidence at
the CrR 3.5 hearing to support this finding. However, “[e]ven if a trial court relies
on erroneous or unsupported findings of fact, immaterial findings that do not affect
its conclusions of law are not prejudicial and do not warrant reversal.” State v.
Coleman, 6 Wn. App. 2d 507, 516, 431 P.3d 514 (2018). This finding is
unsupported on this limited record,6 but is immaterial in determining any of the
legal conclusions that the trial court made. Therefore, the trial court’s erroneous
finding was harmless and does not warrant reversal.
6 Our opinion should not be read as doubting the seriousness of domestic
violence or that “[d]omestic violence situations can be volatile and quickly escalate into significant injury.” State v. Schultz, 170 Wn.2d 746, 755, 248 P.3d 484 (2011). But the State’s evidence at the CrR 3.5 hearing in this case did not show this as a general proposition, and critically did not relate such a proposition to the situation the officers encountered here. We are constrained by the limited evidence the State presented consisting solely of the BWC footage and no law enforcement testimony. This necessarily limits what the State was able to establish.
9 No. 86006-2-I/10
D
Hinze argues findings of fact 6, 8 through 12, and 15 and 16 are not findings
of fact, but legal conclusions subject to de novo review.
Finding of fact 6 states, “It was reasonable, while [Hinze] was handcuffed
behind his back, for a sheriff’s deputy to place one hand on [Hinze’s] bicep, to both
stabilize him, and to prevent him from entering the house through the open door
behind him.” Findings of fact 8 through 12 state,
8. There was no booking photographs or fingerprinting facilities at the location, which weighs in favor of a finding that the encounter was not akin to formal arrest;
9. The place of interrogation was in front of [Hinze’s] house, and not similar to a police interrogation room, which weighs in favor of this not being akin to a formal arrest;
10. Although the interrogation took place shortly after midnight, that factor does not tend to make the encounter more like a formal arrest, since the hour was not chosen by police;
11. [Hinze] was told that he was not under arrest. While that statement, in and of itself, does not shield an arrest from being akin to formal arrest, it is a factor, and in this situation in consideration of the other circumstances, it weighs in favor of a reasonable belief that [Hinze’s] freedom was not curtailed to the degree associated with formal arrest;
12. The length of the detention, prior to reading Miranda rights was very brief, and only lasted long enough to confirm or dispel suspicion that [Hinze] had committed an assault, and this factor weighs in favor of a finding that a reasonable person would not believe the encounter was akin to formal arrest
Though framed as findings of fact, findings 6 and 8 through 12 end with legal
conclusions. We consider such conclusions de novo. State v. Rosas-Miranda,
176 Wn. App. 773, 779, 309 P.3d 728 (2013). Hinze also assigns error to finding
10 No. 86006-2-I/11
of fact 15, which states, “A reasonable person would believe that the defendant’s
freedom was not curtailed to the degree associated with formal arrest,” and finding
of fact 16, which states, “The encounter did not amount to a formal arrest.” The
State concedes, and we agree, these are conclusions of law subject to de novo
review.
The Fifth Amendment right against compelled self-incrimination requires
police to inform a suspect of their Miranda rights before a custodial interrogation.
State v. Baruso, 72 Wn. App. 603, 609, 865 P.2d 512 (1993). The parties dispute
whether Hinze was in custody. A suspect is in custody for purposes of Miranda as
soon as their freedom “ ‘is curtailed to a degree associated with formal arrest.’ ”
State v. Watkins, 53 Wn. App. 264, 274, 766 P.2d 484 (1989) (internal quotation
marks omitted) (quoting Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138,
82 L. Ed. 2d 317 (1984)). To determine whether a person is in custody, courts
examine the totality of the circumstances, including factors such as “the nature of
the surroundings, the extent of police control over the surroundings, the degree of
physical restraint placed on the suspect, and the duration and character of the
questioning.”7 State v. Escalante, 195 Wn.2d 526, 533-34, 461 P.3d 1183 (2020).
Hinze primarily focuses on the degree of physical restraint, arguing he was
in custody because officers handcuffed him, and one placed his hand on Hinze’s
arm. The State answers that Hinze was not in custody for purposes of Miranda,
7 These factors are analogous to the factors the Ninth Circuit uses: (1) the
language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual. United States v. Barnes, 713 F.3d 1200, 1204 (9th Cir. 2013).
11 No. 86006-2-I/12
because the officers’ detention and questioning of Hinze was within the scope of
a valid stop under Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889
(1968). Under Terry, it does not violate the Fourth Amendment protection against
unreasonable searches and seizures for a law enforcement officer to temporarily
detain an individual suspected of criminal activity if the officer can point to “specific
and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant that intrusion.” Id. at 20-21.
“Washington courts agree that a routine Terry stop is not custodial for the
purposes of Miranda.” State v. Heritage, 152 Wn.2d 210, 218, 95 P.3d 345 (2004).
During the investigatory detention, officers may ask the detained individual
questions to confirm or dispel their suspicions, Florida v. Royer, 460 U.S. 491, 498,
103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion), and can “take such
steps as [are] reasonably necessary to protect their personal safety,” United States
v. Hensley, 469 U.S. 221, 235, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). A suspect
may be handcuffed and the detention may remain a valid Terry stop, albeit only
when the degree of intrusion upon the suspect’s liberty is not excessive and there
is a legitimate concern for police safety. State v. Wheeler, 108 Wn.2d 230, 235-
36, 737 P.2d 1005 (1987); State v. Mitchell, 80 Wn. App. 143, 146, 906 P.2d 1013
(1995) (handcuffing may be appropriate to accomplish a Terry stop only when
police have “a reasonable fear of danger”).
From the fact a Terry stop usually does not amount to custody for purposes
of Miranda, and a Terry stop may involve the use of restraint appropriate to officer
safety, courts have reasoned that “[h]andcuffing a suspect does not necessarily
12 No. 86006-2-I/13
dictate a finding of custody.” United States v. Booth, 669 F.2d 1231, 1236 (9th Cir.
1981). We so held in State v. Cunningham, explaining, “An investigative
encounter, unlike a formal arrest, is not inherently coercive since the detention is
presumptively temporary and brief, relatively less ‘police dominated,’ and does not
lend itself to deceptive interrogation tactics.” 116 Wn. App. 219, 228, 65 P.3d 325
(2003) (quoting State v. Walton, 67 Wn. App. 127, 130, 834 P.2d 624 (1992)). In
Cunningham, an officer attempted to stop a suspected stolen vehicle, its driver
exited the vehicle and fled, another officer stopped a person matching the driver’s
description, and police detained the suspect for 45 minutes until an identification
could be made. Id. at 223-24. We said the detention remained a valid Terry stop
and did not amount to custody for purposes of Miranda, even with the suspect
handcuffed, because there was a risk he would flee again. Id. at 228-29. “But if,
during a valid Terry stop, police officers ‘take highly intrusive steps’ that are
justified under the Fourth Amendment by the need to protect themselves from
danger, they may create the type of custodial environment that requires them to
‘provide protection to their suspects by advising them of their constitutional
rights.’ ” Escalante, 195 Wn.2d at 537 (quoting United States v. Perdue, 8 F.3d
1455, 1465 (10th Cir. 1993)).
Here, law enforcement’s detention of Hinze was a valid Terry stop
supported by reasonable articulable suspicion. The deputies were called to
Hinze’s residence aware that at least one gun was present at the scene, and on
arrival saw that N.S.’s face was bruised and she was upset. There were facts to
suggest that Hinze had committed a violent crime, assault, against N.S., Hinze
13 No. 86006-2-I/14
was standing near vehicles, N.S. had said she placed a gun in a vehicle, and Hinze
was standing near the open door to his home, giving him the ability to flee into the
house out of the officers’ observation. This combination of circumstances supports
a conclusion that deputies had a legitimate concern for their safety and, under
Terry, were justified in handcuffing Hinze until more information could be collected.
But even with these safety concerns, in this case we are able to conclude Hinze
was not in custody only when we additionally consider the remaining factors.
While Hinze’s freedom of movement was limited, the deputies did not
pressure, threaten, or coerce Hinze into answering their questions. Hinze was
handcuffed for approximately 5 minutes—during approximately 2 minutes of
disputed questioning to give his name and answer one, non-accusatory, question
and during approximately 3 minutes of investigation before being formally
arrested—a much shorter amount of time than in Cunningham. The very short
duration of the deputies’ inquiry was consistent with the intended scope of a Terry
stop. And the nature of the questioning involved no confrontation with evidence of
Hinze’s guilt, but consisted solely of the lead deputy asking Hinze’s name and “why
are we here?” These facts support the conclusion Hinze was not in custody. If the
questioning had exceeded the scope of a Terry stop, or if it had been lengthy or
confrontational, we would be more likely to hold he was in custody.
The nature of the surroundings and the extent of police control over the
surroundings further support the conclusion that Hinze was not in custody for
purposes of Miranda. Officers questioned Hinze in front of the door to his home,
from which he had exited as they approached, and to which they had been called
14 No. 86006-2-I/15
in response to a report.8 Compare United States v. Eide, 875 F.2d 1429, 1437
(9th Cir. 1989) (brief interview of suspect at his home was not custody), with United
States v. Barnes, 713 F.3d 1200, 1204 (9th Cir. 2013) (custody was signaled
where “confrontation occurred with three law enforcement officials in a small office,
behind a closed door, inside the Alaska Department of Corrections Probation
building.”). Furthermore, while officers had begun to assert some control over the
surroundings, it was not to the degree present in cases finding custody. At least
two officers approached the residence, and the lead officer directed N.S. where to
stand away from Hinze and restrained Hinze while inquiring of him. At the same
time, the lead officer advised Hinze that he was not under arrest, a fact weighing
against a conclusion of custody. Compare Rosas-Miranda, 176 Wn. App. at 782
(defendant was not in custody where officer entered home with permission, stayed
within earshot in case permission was revoked, but did not monitor occupants or
restrict their movements), with State v. Dennis, 16 Wn. App. 417, 419, 421-22, 558
P.2d 297 (1976) (custody where police entered home coercively, refused
occupants’ directions, confronted occupants about involvement in crime,
restrained their movements, and advised other officers were on the way with a
warrant), and United States v. Craighead, 539 F.3d 1073, 1078, 1085 (9th Cir.
2008) (custody where eight officers executed a search warrant, some with drawn
weapons, and officers isolated suspect in a storage room in his house and
interviewed him for 20-30 minutes).
8 The State did not put on evidence at the CrR 3.5 hearing that N.S. had
called 911 and reported an assault. The BWC footage supports a reasonable inference that police had been called to the scene on an emergency basis.
15 No. 86006-2-I/16
While the level of intrusion was significant, given the totality of the
circumstances, we conclude that a reasonable person in Hinze’s circumstances
would not have felt that their freedom was curtailed to a degree associated with
formal arrest. Therefore, the prearrest detention did not rise to the level of custody,
and the trial court did not err in admitting Hinze’s prearrest statements.
III
Hinze argues the State’s introduction of evidence of his marital relationship
with N.S. was inflammatory and should have been excluded. Although we view
the relevance of this marital relationship evidence as exceedingly marginal, we are
unable to say that the trial court abused its discretion in admitting the evidence.
Before trial, the State moved to admit evidence of “the deteriorating
relationship” between Hinze and N.S. under ER 404(b). The State hoped to
introduce text messages between the couple in the months leading up to the
incident primarily “to assess the credibility of the victim,” and help explain why
“someone who has been beaten so badly or someone who has been raped
originally [might] make excuses for the perpetrator, ask that charges not be filed,
make some attempts to reconcile the relationship.” The State contended the
evidence could also be admitted to prove “motive” because “[t]he exercise of
control over the relationship and over control of his wife is a motive for why [Hinze]
raped and beat her.” The trial court conducted the proper four-step ER 404(b)
16 No. 86006-2-I/17
analysis on the record,9 and ruled the evidence was admissible to show motive
and explain N.S.’s late reporting.
The following testimony was elicited at trial. N.S. testified that her marriage
“started getting pretty bad” at the beginning of 2022. Hinze was lying “[a] lot” about
talking to other women on social media, and he “would not come home for days
on end.” N.S. recalled one instance where she woke up in the middle of the night
to Hinze on his phone, and testified, “[He] started quickly deleting stuff and [I]
grabbed his phone. He almost broke my hand squeezing my hand around his
phone because he didn’t want me to see whatever was on there.” N.S. testified
she had threatened to kick Hinze out if he did not “mend his ways” and Hinze was
unhappy about her expectations of him, at one point mentioning he felt like he was
under house arrest. N.S. testified that in April 2022, Hinze went to a bar with co-
workers and did not respond to her for hours. N.S. looked at Hinze’s phone
location, and drove to a gas station in Everett to retrieve him, where Hinze was
“completely black-out drunk” in a vehicle with two older women. N.S. brought
Hinze back to their house, and the next morning Hinze moved out of the house for
approximately two weeks. While Hinze was moved out, N.S. sent him text
messages, “I just—just told—kept reassuring him that, you know, we made a vow
to each other. And that I wanted him to get help.” N.S. testified her intent was to
reunify and get Hinze back. N.S. testified to two other instances where Hinze left
the house and did not return for hours.
9 During this determination, the trial court ruled the text messages between
the couple would not be admitted. During Hinze’s cross-examination, the State read portions of the text messages into evidence to refresh his recollection.
17 No. 86006-2-I/18
The trial court gave the following limiting instruction halfway through N.S.’s
testimony and again at the end of her testimony:
[C]ertain evidence has been admitted in this case for a limited purpose. This evidence consists of the testimony from [N.S.] regarding alleged acts of misconduct committed by [Hinze] prior to June 25 of 2022. This evidence may be considered by you only for the purpose of: 1. Assessing whether [Hinze] had a motive to harm [N.S.], and 2. [N.S.’s] state of mind[,] and how she may have been affected by [Hinze] during their marriage. You may not consider the evidence of alleged misconduct for any other purpose.
The record does not show that Hinze challenged this instruction or proposed any
alternative instruction.
Hinze testified to the incident at the Everett gas station, that he went out to
a bar with coworkers, he agreed to stay at his mother’s house that night, and he
left with two women he met at the bar to go to another bar. On cross-examination,
the State read text messages between the couple from that night, with N.S. asking
Hinze to call her and Hinze not replying. Hinze testified he moved out of the house
following the Everett incident and it was “strongly suggested” that Hinze obtain
counseling. Hinze agreed there were two other instances where he went out and
N.S. was messaging him about his whereabouts.
Generally, evidence of a defendant’s prior misconduct is inadmissible to
demonstrate the accused’s propensity to commit the crime charged. ER 404(b);
State v. Holmes, 43 Wn. App. 397, 400, 717 P.2d 766 (1986). However, ER 404(b)
18 No. 86006-2-I/19
allows the introduction of prior misconduct evidence for other purposes, such as
“proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.” Before the admission of other act misconduct
evidence, the court must (1) find by a preponderance of the evidence the
misconduct actually occurred, (2) identify the purpose of admitting the evidence,
(3) determine the relevance of the evidence to prove an element of the crime, and
(4) weigh the probative value against the prejudicial effect of the evidence. State
v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995). “If evidence of a defendant’s
prior crimes, wrongs, or acts is admissible for a proper purpose, the defendant is
entitled to a limiting instruction upon request.” State v. Gresham, 173 Wn.2d 405,
423, 269 P.3d 207 (2012). 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. State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990).
When the trial court has correctly interpreted the rule, we review a trial
court’s ruling to admit or exclude evidence for an abuse of discretion. State v.
Foxhaven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). “ ‘A trial court abuses its
discretion when its decision is manifestly unreasonable or based upon untenable
grounds.’ ” State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting
Havens v. C & D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)).
Furthermore, “[a] reviewing court may not find abuse of discretion simply because
it would have decided the case differently.” State v. Salgado-Mendoza, 189 Wn.2d
420, 427, 403 P.3d 45 (2017).
19 No. 86006-2-I/20
The trial court admitted the marital relationship evidence for two reasons:
(1) to explain N.S.’s delayed reporting and state of mind, and (2) to prove Hinze’s
motive.
“When an alleged victim acts inconsistently with a disclosure of abuse, such
as by failing to timely report the abuse or by recanting or minimizing the
accusations, evidence of prior abuse is relevant and potentially admissible under
ER 404(b) to illuminate the victim’s state of mind at the time of the inconsistent
act.” State v. Cook, 131 Wn. App. 845, 851, 129 P.3d 834 (2006) (footnote
omitted). Such evidence may be admissible to also “assist the jury in judging the
credibility of a recanting victim.” State v. Magers, 164 Wn.2d 174, 186, 189 P.3d
126 (2008). The victim’s credibility does not need to be an element of the charged
offense. See, e.g., State v. Harris, 20 Wn. App. 2d 153, 158, 498 P.3d 1002 (2021)
(evidence of prior assaults admissible to help jury determine recanting witness’s
credibility in case involving violation of no-contact order).
In State v. Gunderson, the defendant was charged with domestic violence
felony violation of a court order stemming from an altercation with his ex-girlfriend.
181 Wn.2d 916, 919, 337 P.3d 1090 (2014). The complaining witness gave one
account of events at trial, and stated there was no physical violence, which was
not inconsistent with her prior statement. Id. at 920. The State sought to impeach
this testimony by putting on evidence of past acts of domestic violence leading to
arrest and conviction. Id. at 920-21. The Supreme Court explained,
In State v. Magers, we took great care to specifically establish that “evidence that [the defendant] had been arrested for domestic violence and fighting and that a no-contact order had been entered
20 No. 86006-2-I/21
following his arrest was relevant to enable the jury to assess the credibility of [the complaining witness] who gave conflicting statements about [the defendant’s] conduct.”
181 Wn.2d at 923-24 (alterations in original) (quoting Magers, 164 Wn.2d at 186).
The court noted that the victim in Gunderson did not give any conflicting
statements, and declined to extend Magers to cases where there was no evidence
of injuries to the alleged victim and the witness neither recanted nor contradicted
prior statements. Gunderson, 181 Wn.2d at 924-25. In doing so, the court
confirmed there was no domestic violence exception for prior bad acts, and
admissibility was confined to cases “where the State has established their
overriding probative value, such as to explain a witness’s otherwise inexplicable
recantation or conflicting account of events.” Id. at 925.
This case is more similar to Magers than Gunderson to the extent that N.S.
gave a version of events the night of the incident that omitted crucial facts she
supplied only later. A version of events omitting rape and strangulation and
another version asserting those events amount to two different versions of events.
Thus, on the relevance side of the scale, there is a greater need to suggest
background motivations implying an explanation than was present in Gunderson.
On the unfair prejudice side of the scale, the evidence here is somewhat less
inflammatory than the other-act evidence was in Gunderson. There, the other-act
evidence constituted evidence of other crimes for which the defendant was
convicted bearing significant similarity to the charged conduct at issue. Id. at 920-
21. In this case, the marital relationship evidence does not constitute criminal
conduct and is dissimilar from the charged criminal conduct so, while the evidence
21 No. 86006-2-I/22
is highly negative to Hinze, it does not carry the same level of risk of a propensity
inference that was present in Gunderson. Thus, compared with Gunderson, the
marital relationship evidence here is both more probative given the circumstances
of the evidence and less prejudicial. The real difficulty is that the evidence is not
obviously probative of reasons why N.S. would limit her reporting. Nevertheless,
determinations of both relevance and unfair prejudice fall within the trial court’s
discretion, even if both the probative value and the prejudice could have been
weighed differently. We are unable to say the trial court abused its discretion in
admitting the marital relationship evidence, on these facts, to help explain why N.S.
gave conflicting versions of events.
Because we conclude the trial court did not abuse its discretion in admitting
the marital relationship evidence pursuant to ER 404(b) to explain N.S.’s
inconsistent reporting, we do not address whether the evidence was properly
admitted to prove motive. See State v. Arredondo, 188 Wn.2d 244, 259, 394 P.3d
348 (2017) (internal quotation marks omitted) (“We must guard against using
‘motive and intent as magic passwords whose mere incantation will open wide the
courtroom doors to whatever evidence may be offered in their names.’ ”) (quoting
State v. Saltarelli, 98 Wn.2d 358, 364, 655 P.2d 697 (1982)). In some cases,
allowing evidence for an erroneous purpose under ER 404(b) may be harmless if
“the evidence was properly admitted for other, permissible purposes.” State v.
Crossguns, 199 Wn.2d 282, 296, 505 P.3d 529 (2022). Given N.S.’s reporting
inconsistency and given that the marital relationship evidence was noncriminal in
nature and dissimilar to the charged criminal conduct, and given the deferential
22 No. 86006-2-I/23
standard of review, we cannot say the trial court’s application of Magers and
Gunderson was an abuse of discretion. This satisfies us that even if we disagreed
with the trial court’s analysis of motive, we would not reverse as the marital
relationship evidence was otherwise admissible.
IV
Hinze argues the trial court erroneously concluded that his convictions were
not same criminal conduct for sentencing purposes. We disagree.
“ ‘Same criminal conduct’ ” means “two or more crimes that require the
same criminal intent, are committed at the same time and place, and involve the
same victim.” RCW 9.94A.589(1)(a). An absence of any one of the three elements
precludes a finding of same criminal conduct. State v. Porter, 133 Wn.2d 177,
181, 942 P.2d 974 (1997). Because the default method of calculating an offender
score is to treat all current convictions as separate and distinct conduct, the
defendant bears the burden of establishing same criminal conduct. State v.
Westwood, 2 Wn.3d 157, 162, 534 P.3d 1162 (2023). We review a sentencing
court’s determination of same criminal conduct for an abuse of discretion. State v.
Aldana Graciano, 176 Wn.2d 531, 541, 295 P.3d 219 (2013).
The parties do not dispute that the rape and assault convictions were
committed at the same time and place and involve the same victim. Only the first
element, same criminal intent, is disputed. The same criminal conduct test is “an
objective intent analysis.” Westwood, 2 Wn.3d at 162. When determining whether
the crimes involve the same criminal intent, courts first identify the statutory
definitions of the crimes to determine the objective intent for each crime. Id. at
23 No. 86006-2-I/24
167. If the objective intent for each crime is different, the inquiry ends and the
convictions are not the same criminal conduct. See id. at 168-169 (after reviewing
the statutory definitions of attempted rape in the first degree and assault in the first
degree, the court concluded the intent necessary for the crimes differed and
affirmed the sentencing court’s ruling that the crimes did not involve the same
criminal conduct). This analysis ignores the defendant’s subjective intent. Id. at
162, 164. Westwood held that convictions for attempted rape in the first degree
and assault in the first degree did not have the same objective intent under same
criminal conduct analysis. Id.
Hinze was convicted of rape in the second degree and assault in the second
degree. A person commits rape in the second degree, as charged here, when the
person engages in sexual intercourse with another person by forcible compulsion.
RCW 9A.44.050(1)(a). “Forcible compulsion” means physical force which
overcomes resistance, or a threat, express or implied, that places a person in fear
of death or physical injury to themselves or another person. RCW 9A.44.010(3).
A person commits assault in the second degree, as charged here, when the person
intentionally assaults another and thereby recklessly inflicts substantial bodily
harm or assaults another by strangulation. RCW 9A.36.021(1)(a), (g). The jury
concluded by special verdict that Hinze did not commit assault in the second
degree with a sexual motivation. These crimes have distinct objective intents and
therefore do not encompass same criminal conduct, and the jury’s special verdict
clearly delineated the rape conviction from the assault conviction. The trial court
24 No. 86006-2-I/25
did not abuse its discretion in concluding Hinze’s convictions did not constitute
same criminal conduct.
Affirmed.
WE CONCUR: