FILED COURT OF APPEALS DIVISION 11
1015 FEB 18 AM 9: 17
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 45173 -5 -II
Respondent,
v.
BARON DELL ASHLEY JR., PART PUBLISHED OPINION
Appellant.
JOHANSON, C. J. — Baron Dell Ashley Jr. appeals his jury trial conviction for unlawful
imprisonment (domestic violence), his sentence, and the imposition of legal financial obligations
LFOs). He argues that the trial court erred when it included a prior attempted second degree
assault juvenile adjudication as one point in his offender score because it did not qualify as a
violent offense under RCW 9. 94A. 030( 54). In the published portion of this opinion, we hold that
the trial court did not err in counting the prior attempted second degree assault juvenile
adjudication as one point and adopt the reasoning set forth in Division One of this court' s opinion
State v. Becker, 59 Wn. App. 848, 801 P. 2d 1015 ( 1990). Ashley further argues that the trial court
1 RCW 9A.40. 040( 1); RCW 10. 99. 020( 5). No. 45173 -5 -II
erred in ( 1) admitting evidence of prior acts of domestic violence under ER 404(b) and ( 2)
imposing LFOs. In the unpublished portion of this opinion, we hold that the trial court did not
abuse its discretion in admitting the prior bad acts evidence and that the LFO issue is not ripe for
review. Accordingly, we affirm Ashley' s conviction, his sentence, and his LFOs.
FACTS
A jury found Ashley guilty of unlawful imprisonment (domestic violence).2 The trial court
calculated Ashley' s sentence with a seven -point offender score, which included one point for
Ashley' s 1999 attempted second degree assault juvenile adjudication. Ashley appeals his
sentence.
ANALYSIS
Ashley argues that the trial court erred in scoring his 1999 attempted second degree assault
juvenile adjudication as one point in his offender score. He contends that because this was an
attempt offense, it did not qualify as a violent offense under RCW 9. 94A. 030( 54), and it should
have counted only as one -half a point. We disagree.
RCW 9. 94A.525 establishes how to calculate a defendant' s offender score. RCW
9. 94A. 525( 7) provides, " If the present conviction is for a nonviolent offense and not covered by
subsection ( 11), ( 12), or ( 13) of this section, count one point for each adult prior felony conviction
and one pointfor eachjuvenile prior violentfelony conviction and 1/ 2 point for each juvenile prior
nonviolent felony conviction." ( Emphasis added.) RCW 9. 94A.030( 54) defines a " violent
offense" as including, among other offenses, "[ a] ny felony defined under any law as a class A
2 We describe the background facts and procedure in more detail in the unpublished portion of this opinion.
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felony or an attempt to commit a class A felony" and second degree assault. RCW
9. 94A. 030( 54)( a)( i), (viii). It does not include attempted second degree assault in this definition.
Ashley argues that because attempted second degree assault does not fall under RCW
9. 94A.030( 54)' s violent offense definition, the trial court erred when it assigned one point to his
offender score for that offense rather than one -half a point.
But RCW 9. 94A. 525( 4) requires the sentencing court to "[ s] core prior convictions for
felony anticipatory offenses ( attempts, criminal solicitations, and criminal conspiracies) the same
as if they were convictions for completed offenses." Thus, under RCW 9. 94A. 525( 4), Ashley' s
prior attempted second degree assault would be treated as a completed second degree assault for
purposes of calculating his offender score. Because second degree assault is a violent offense
under RCW 9. 94A. 030( 54)( a)( viii), RCW 9. 94A.525( 4) provides that the resulting offender score
for that offense would be one point. As a result, it could be argued that RCW 9. 94A.030( 54) and
RCW 9. 94A. 525( 4) conflict.
Division One of this court addressed a substantially similar issue in Becker, 59 Wn. App.
848. In Becker, the sentencing court counted a prior attempted second degree robbery conviction
as two points under former subsection ( 9) of the former offender score statute, RCW 9. 94A.360
1990), which is now codified as RCW 9. 94A.525( 8). 59 Wn. App. at 851. Similar to RCW
9. 94A. 525( 7), the provision at issue here, former RCW 9. 94A.360( 9) provided for a higher
offender score for prior violent felony convictions:
If the present conviction is for a violent offense and not covered in subsection ( 10), 11), ( 12), or ( 13) of this section, count two pointsfor each prior adult andjuvenile violent felony conviction, one point for each prior adult nonviolent felony conviction, and 1/ 2 point for each prior juvenile nonviolent felony conviction.
Emphasis added.)
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On appeal, Becker argued that his prior attempted robbery conviction did not count as two
points in his offender score because it was not defined as a " violent offense" under the general
definitional statute, former RCW 9. 94A.030( 29) ( 1988) ( now RCW 9. 94A.030( 54)). Becker, 59
Wn. App. at 850 -51. Noting an " apparent" conflict between the former definitional statute and the
former offender score statute, Division One held that the plain language of the statutes did not
conflict and, instead, could be harmonized:
The apparent conflict in the sections is based on the assumption that the attempted robbery can only receive two points if it is a " violent offense." Contrary to Becker' s contention, the offense does not receive two points because it is a violent offense, but rather, it receives two points because the completed crime of robbery in the second degree would receive two points and the attempted robbery is to be treated as a completed crime. According to the plain language of [ former] RCW 9. 94A.360( 5) the attempt must be treated the same as the completed crime. Such a reading of the two sections gives effect to each section and does not distort the language of the sections.
Becker, 59 Wn. App. at 852. Division One subsequently followed Becker in State v. Howell, 102
Wn. App. 288, 292 -95, 6 P. 3d 1201 ( 2000), and Division Three has followed Becker in State v.
Knight, 134 Wn. App. 103, 138 P.3d 1114 ( 2006), aird, 162 Wn.2d 806, 174 P. 3d 1167 ( 2008).
The same reasoning applies here.
Ashley argues that Becker and Knight were wrongly decided because they " did not
adequately take into account the fact that, where the definitional section of the [ Sentencing Reform
Act of 1981], [ RCW 9. 94A]. 030, provides that certain offenses are violent offenses, non -listed
offenses are definitionally not violent offenses." Reply Br. of Appellant at 5. He contends that
definitional statutes are " integral to the statutory scheme and must be given effect." Reply Br. of
Appellant at 5. We disagree that Becker and Knight did not give effect to the definitional statute;
they did so by harmonizing the definitional statute with the offender score statute.
4 No. 45173 -5 -II
Ashley also argues that any ambiguity must be resolved in his favor under the rule of lenity.
But because the approach in Becker harmonizes the plain language of the statutes, there is no
ambiguity and the rule of lenity does not apply. We also note that the legislature' s failure to amend
the statutes in the 24 years since Becker was issued reflects its acquiescence to the court' s
conclusions in that case. See State v. Berlin, 133 Wn.2d 541, 558, 947 P. 2d 700 ( 1997) ( " The
failure of the Legislature to amend a statute to change the statute' s judicial construction is
reflective of legislative acquiescence in the Court' s interpretation. ").
For the reasons stated in Becker, and by harmonizing the definitional and offender score
statutes, we conclude that the trial court did not err in treating the attempted second degree assault
the same as the completed crime and including this prior offense as one point in Ashley' s offender
score.
We affirm Ashley' s conviction and his sentence.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2. 06. 040, it is so ordered.
Ashley further argues that the trial court erred in ( 1) admitting prior bad acts evidence
under ER 404( b), and ( 2) imposing the LFOs. These arguments also fail.
ADDITIONAL FACTS
I. BACKGROUND
On May 27, 2013, officers from the Vancouver Police Department arrived at Ashley' s
sister' s apartment to arrest Ashley and his sister on outstanding arrest warrants. The officers
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knocked repeatedly on the door. Although the officers had initially heard voices inside the
apartment, no one responded.
About 45 minutes later, the officers obtained a key from the apartment manager and
announced that they had a key and were opening the.door. When they opened the door, the officers
called out to anyone inside the apartment, explained they were the police and were not going away,
and asked the people inside to come out. Makayla Gamble, Ashley' s former girlfriend, and her
children met the officers in the downstairs living area.
Once Gamble was outside, the officers asked Gamble if Ashley was inside, and she told
them that he was upstairs. She also told the officers that Ashley had detained her in the bathroom.
II. PROCEDURE
A. MOTION To ADMIT PRIOR BAD ACTS EVIDENCE
The State charged Ashley by amended information with unlawful imprisonment (domestic
violence). Before trial, the State moved to introduce evidence of Ashley' s prior domestic violence
against Gamble. The State argued that this evidence was to show why Ashley was able to keep
Gamble in the bathroom without her consent despite the lack of any explicit threat.
At the motion hearing, Gamble testified that she had been in a relationship with Ashley
from 2000 to 2005, and that he was the father of two of her children. She testified that she and her
children were visiting Gamble' s sister when the police arrived and that Ashley had put her and her
infant in an upstairs bathroom so the police would not hear them. She remained in the bathroom
for 40 to 50 minutes despite her telling Ashley several times that she wanted to leave. She further
testified that she did not feel free to leave —in part because prior domestic abuse by Ashley caused
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her to fear Ashley. She stated that if it had not been for her history with Ashley, she would have
gone downstairs rather than stay in the upstairs bathroom.
Gamble also testified about several past domestic violence incidents that happened between
2000 and 2008. Gamble stated that she had reported only one incident, a 2004 incident, to the
police, but she then " dropped it." 1A Report of Proceedings ( RP) at 78. In addition, Gamble
testified that she still feared Ashley and that she felt unsafe when she was in the bathroom because
of his assaultive history. •But she admitted that Ashley did not expressly threaten her when he told
her to go in the bathroom and be quiet.
The State argued that Ashley' s prior violence against Gamble explained the dynamics of
their relationship and would help the jury understand why Ashley was able to control Gamble' s
behavior without any express threats and why Gamble initially complied with Ashley' s directions
and did not yell for help. The State further argued that although the past acts of violence occurred
several years earlier, these acts were still relevant because Gamble was aware that Ashley was
capable of violence against her. Ashley argued that the trial court should not admit this evidence
because the State was not using it to establish an element of the offense, it was not relevant to
Gamble' s credibility because she was not recanting her earlier statements, Gamble' s testimony
and the single police report from 2004 were not sufficient to establish the prior acts by a
preponderance of the evidence, and the passage of time had made the incidents less probative.
The trial court found that ( 1) Gamble' s testimony established the prior acts of violence by
a preponderance of the evidence, ( 2) the purpose of the evidence was to show the restraint was
without her consent because of her ongoing fear based on this history, and ( 3) the probative value
of the prior acts evidence outweighed the possible prejudice. The trial court admitted the prior
7 No. 45173 -5 -II
domestic violence evidence and invited the parties to submit limiting instructions related to this
evidence.
B. TRIAL
At trial, Gamble testified that when the police arrived on May 27, Ashley forced her to
remain in an upstairs bathroom. Gamble told Ashley twice that she wanted to leave the bathroom
and to go home; Ashley did not respond. She also tried to open the door three or four times, but
Ashley would close it again. Once when she opened the door, Ashley was in the hallway, and
when he saw her open the door, " his face was different," and " he looked pissed off." 1B RP at
195.
Gamble also testified about four instances of past physical abuse that occurred from 2000
to 2005. She testified that she had only called the police after the 2004 incident and that she later
recanted her allegations because she loved Ashley. In addition, Gamble testified that she had only
seen Ashley three or four times since 2008.
On cross- examination, Gamble admitted that Ashley did not yell at her, threaten her, or
physically force her into the bathroom. And she agreed that she " remained in the bathroom under
her] own power." 1B RP at 203. But on redirect, Gamble reiterated that Ashley did not have to
threaten to harm her to keep her in the bathroom because she was still afraid of him given their
past history and because all he had to do was to look at her a certain way and she would comply.
Ashley did not call any witnesses.
The jury found Ashley guilty of unlawful imprisonment ( domestic violence). Although
Ashley argued at sentencing that he was not able to pay the LFOs, the trial court also imposed
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various LFOs. The judgment and sentence does not contain any findings regarding Ashley' s
ability to pay LFOs.
ADDITIONAL ANALYSIS
I. ER 404( B) EVIDENCE
Ashley argues that the trial court erred in admitting the prior bad acts evidence under ER
404( b) because ( 1) the State failed to prove the prior acts by a preponderance of the evidence, ( 2)
the evidence was not relevant to an element of the crime, and ( 3) the evidence was overly
prejudicial because the prior acts were too remote in time to be probative. We disagree.
A. STANDARD OF REVIEW AND ER 404(B) ANALYSIS
We review a trial court' s evidentiary rulings for abuse of discretion. State v. Finch, 137
Wn.2d 792, 810, 975 P. 2d 967, cent. denied, 528 U.S. 922 ( 1999). A trial court abuses its discretion
when its evidentiary ruling is "' manifestly unreasonable, or exercised on untenable grounds, or for
untenable reasons. ' State v. Downing, 151 Wn.2d 265, 272, 87 P. 3d 1169 ( 2004) ( quoting State
ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)). It is the appellant' s burden to
prove abuse of discretion. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 ( 1999).
ER 404( b) prohibits the admission of evidence of other crimes, wrongs, or acts "` to prove
the character of a person in order to show action in conformity therewith.' State v. Foxhoven,
161 Wn.2d 168, 174 -75, 163 P. 3d 786 ( 2007) ( quoting ER 404( b)) Before admitting prior bad
acts evidence, the trial court 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. ' Foxhoven, 161 Wn.2d at 175 ( quoting
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State v. Thang, 145 Wn.2d 630, 642, 41 P. 3d 1159 ( 2002)). " Preponderance of the evidence means
that considering all the evidence, the proposition asserted must be more probably true than not."
State v. Ginn, 128 Wn. App. 872, 878, 117 P. 3d 1155 ( 2005), review denied, 157 Wn.2d 1010
2006).
B. PROOF OF PRIOR BAD ACTS
Ashley argues that the evidence did not establish the prior bad acts by a preponderance
because Gamble did not provide any police or medical documentation of the incidents and because
Gamble admitted that she called the police to report only one of the incidents and then recanted
her allegations. We disagree.
At the motion hearing, Gamble testified about each of the incidents she later described to
the jury, that testimony was not disputed, and the trial court apparently found Gamble' s testimony
credible. Ashley cites to no authority establishing that a witness' s testimony alone cannot establish
a fact by a preponderance of the evidence. Furthermore, to the extent the trial court' s decision
rested on it finding Gamble' s testimony credible, we do not review a trial court' s credibility
determinations. State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990). Accordingly, this
argument fails.
C. RELEVANCE
Ashley next argues that the evidence was not relevant to an element of the crime. Again,
we disagree.
A person commits unlawful imprisonment if he " knowingly restrains another person."
RCW 9A. 40. 040( 1). RCW 9A.40. 010( 6) provides,
Restrain" means to restrict a person' s movements without consent and without legal authority in a manner which interferes substantially with his or her liberty.
10 No. 45173 -5 -II
Restraint is " without consent" if it is accomplished by ( a) physical force, intimidation, or deception.
Emphasis added.) The trial court expressly found that the purpose of the evidence was to show
that the restraint was without Gamble' s consent because of her ongoing fear based on Ashley' s
history of violence with her. Essentially, the trial court found that the domestic violence evidence
was material and relevant to both Gamble' s lack of consent and to whether Ashley accomplished
the restraint by intimidation. We agree that personal history with a violent person can certainly be
relevant to whether a particular action or behavior amounts to intimidation from the victim' s
3 perspective. Accordingly, this argument fails.
D. PROBATIVE VS. PREJUDICIAL VALUE
Ashley next argues that because the domestic violence incidents occurred several years
before this incident, they were too remote to be probative, and, thus, the trial court erred when it
determined that their prejudicial value did not outweigh any probative value. Again, we disagree.
Although the evidence of the prior domestic violence incidents is potentially highly
prejudicial, that evidence was also highly probative in this instance because the State claimed that
Ashley had restrained Gamble through the use of a subtle form of intimidation that the jury could
fully understand only if it was aware of the violent nature of Gamble and Ashley' s relationship.
Although the prior incidents had taken place several years earlier, this history was still highly
3 Citing State v. Magers, 164 Wn.2d 174, 189 P. 3d 126 ( 2008), and State v. Baker, 162 Wn. App. 468, 475, 259 P. 3d 270, review denied, 173 Wn.2d 1004 ( 2011), Ashley also argues that " this sort of prior act evidence is appropriate in cases where the alleged victim recants, to show, why she might do so out of fear, which was not the circumstance here." Br. of Appellant at 6. Although these cases state that prior domestic violence evidence is admissible " to assist the jury in judging the credibility of a recanting victim," these cases do not establish that this is the only purpose for which the trial court can admit such evidence. Magers, 164 Wn.2d at 186; see also Baker, 162 Wn. App. at 474 -75. 11 No. 45173 -5 -II
relevant to how Gamble perceived the situation, and Gamble' s testimony about her relative lack
of contact with Ashley in recent years explained why these incidents were so dated. Accordingly,
this argument fails.
The trial court conducted the proper ER 404(b) analysis, and Ashley does not show that its
findings were improper. Thus, we hold that the trial court did not abuse its discretion when it
admitted this evidence.
II. LFOs
Finally, Ashley argues that the trial court erred in imposing LFOs. Because the trial court
did not make a.written finding as to Ashley' s ability to pay, and Ashley has not shown that the
State has sought to enforce the LFOs, Ashley is not an aggrieved party, and this issue is not yet
ripe for review. RAP 3. 1; State v. Lundy, 176 Wn. App. 96, 108 -09, 308 P. 3d 755 ( 2013); State v.
Hathaway, 161 Wn. App. 634, 651, 251 P. 3d 253, review denied, 172 Wn.2d 1021 ( 2011).
Accordingly, we decline to further address this issue.
We affirm Ashley' s conviction, his sentence, and his LFOs.
We concur:
MAXA, J.
SUTTON, J.