IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85428-3-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
BRANDON JEROME ROBINSON,
Appellant.
FELDMAN, J. — Brandon Jerome Robinson appeals his convictions and
sentence for rape in the second degree and burglary in the first degree. He argues
(1) the trial court abused its discretion by admitting under the res gestae doctrine
evidence regarding his conduct in the hours prior to M.R.’s rape, (2) his conviction
for aggravated assault in Pennsylvania was improperly included in his offender
score at sentencing, (3) the community custody condition concerning geographic
boundaries imposed by the trial court at sentencing was unconstitutionally vague,
and (4) remand is necessary to strike the victim penalty assessment (VPA) and
DNA collection fee from his judgment and sentence. We remand to strike the VPA
and DNA collection fee. In all other respects, we affirm. No. 85428-3-I
I
M.R. awoke around 5 a.m. on January 24, 2023 to a man raping her in her
bedroom of her sorority house one block off the University of Washington campus.
Upon waking, she pushed the man off of her and he fled, leaving behind a pair of
black boots. M.R. called the police, who collected the boots, and she went to the
hospital for a sexual assault examination. While M.R. was at the hospital, a man
knocked on the door of her house seeking boots he left there. M.R.’s roommate
took a picture of the man and furnished it to police. Police used that photo in a
department-wide bulletin seeking the suspect who raped M.R.
A police officer recognized the man in the photo as Brandon Robinson, who
he had encountered the same morning M.R. was raped. Around 2 a.m. that
morning, some college students who lived near M.R. called police because they
saw someone looking into their first floor apartment kitchen window and were
frightened. Arriving officers saw someone, later identified as Robinson, leaning
into an open bedroom window of a different apartment nearby. Robinson insisted
that he knew the female occupant. The woman stated she did not know Robinson.
One of the officers told Robinson “[t]here’s a thing called voyeurism . . . kind of like
a peeping tom” and that if he wanted to “hang out” with someone he should maybe
give the person a call or “just knock on the door like a normal person.” Robinson
left after officers asked him to leave. This interaction with Robinson enabled one
of the responding officers to later recognize the person in the photo provided by
M.R.’s roommate as Robinson, which led to Robinson’s arrest. Later analysis of
-2- No. 85428-3-I
DNA in the rape kit taken during M.R.’s sexual-assault examination revealed that
Robinson’s DNA was included.
Following a trial, a jury convicted Robinson of second-degree rape and first-
degree burglary with sexual motivation. At sentencing, the trial court ruled
Robinson’s prior Pennsylvania offense of aggravated assault was comparable to
the Washington crime of third-degree assault and included it in his offender score.
The trial court imposed a standard-range sentence with community custody
provisions upon release. It also imposed a VPA of $500 and a DNA collection fee
of $100.
Robinson appeals.
II
A. Res Gestae Evidence
Robinson argues the trial court abused its discretion by admitting evidence
regarding his conduct in the hours prior to M.R.’s rape. We disagree.
The trial court admitted the challenged evidence, and denied Robinson’s
motion in limine to exclude it, because it concluded that evidence of Robinson’s
activities in the hours prior to M.R.’s rape falls squarely under the res gestate
doctrine and is therefore admissible. We review that ruling for an abuse of
discretion. State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019). A trial court
abuses its discretion if “‘no reasonable person would take the view adopted by the
trial court.’” State v. Jennings, 199 Wn.2d 53, 59, 502 P.3d 1255 (2022) (quoting
State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001)).
-3- No. 85428-3-I
A leading treatise in Washington describes “res gestae” evidence as
including “evidence of misconduct that is close in time to the crime presently
charged and directly relevant to proving the crime presently charged.” 5 KARL B.
TEGLAND, W ASHINGTON PRACTICE: EVIDENCE § 404.18, at 527 (6th ed. 2016). Such
evidence “completes the story of the crime charged or provides immediate context
for events close in both time and place to that crime.” State v. Sullivan, 18 Wn.
App. 2d 225, 237, 491 P.3d 176 (2021). It “depict[s] a complete picture for . . . the
jury.” State v. Grier, 168 Wn. App. 635, 647, 278 P.3d 225 (2012) (quoting State
v. Acosta, 123 Wn. App. 424, 442, 98 P.3d 503 (2004)) (internal quotation marks
omitted).
Our Supreme Court has admitted evidence under the res gestae doctrine in
a variety of circumstances that are relevant here. In State v. Brown, 132 Wn.2d
529, 574, 940 P.2d 546 (1997), the court admitted a rape victim’s testimony
regarding a sexual assault to rebut a defendant’s claims that a sexual assault of
another victim was consensual where the two assaults were “markedly similar.” In
State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981), the court admitted under
the res gestae doctrine evidence of “uncharged crimes” in an “unbroken sequence
of incidents . . . all of which were necessary to be placed before the jury in order
that it have the entire story of what transpired on that particular evening.” The
court explained that “[e]ach offense was a piece in the mosaic necessarily admitted
in order that a complete picture be depicted for the jury.” Id.
Here, as in Brown and Tharp, the trial court admitted relevant evidence of
Robinson’s conduct prior to the rape that placed him near the time and place of
-4- No. 85428-3-I
the rape (he was near M.R.’s house just a few hours prior to the rape) and also
explained how police were able to identify him as the person in the photograph
obtained by M.R.’s roommate, which connected Robinson to the location of the
rape. The evidence completed the story of the crime charged and provided the
immediate context for events close in both time and place to that crime. As in
Tharp, it was “a piece in the mosaic necessarily admitted in order that a complete
picture be depicted for the jury.” Id. For these reasons, the evidence is properly
considered res gestae evidence, and the trial court did not abuse its discretion in
admitting it as such.
Robinson argues the trial court “needed to decide admissibility of res gestae
evidence under the requirements of ER 404(b)” and abused its discretion by failing
to conduct an ER 404(b) analysis, but his argument is not persuasive. The Tegland
treatise, quoted above, explains, “[b]y time-honored tradition and case law,” ER
404(b) does not apply to res gestae evidence because (1) “misconduct closely
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 85428-3-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
BRANDON JEROME ROBINSON,
Appellant.
FELDMAN, J. — Brandon Jerome Robinson appeals his convictions and
sentence for rape in the second degree and burglary in the first degree. He argues
(1) the trial court abused its discretion by admitting under the res gestae doctrine
evidence regarding his conduct in the hours prior to M.R.’s rape, (2) his conviction
for aggravated assault in Pennsylvania was improperly included in his offender
score at sentencing, (3) the community custody condition concerning geographic
boundaries imposed by the trial court at sentencing was unconstitutionally vague,
and (4) remand is necessary to strike the victim penalty assessment (VPA) and
DNA collection fee from his judgment and sentence. We remand to strike the VPA
and DNA collection fee. In all other respects, we affirm. No. 85428-3-I
I
M.R. awoke around 5 a.m. on January 24, 2023 to a man raping her in her
bedroom of her sorority house one block off the University of Washington campus.
Upon waking, she pushed the man off of her and he fled, leaving behind a pair of
black boots. M.R. called the police, who collected the boots, and she went to the
hospital for a sexual assault examination. While M.R. was at the hospital, a man
knocked on the door of her house seeking boots he left there. M.R.’s roommate
took a picture of the man and furnished it to police. Police used that photo in a
department-wide bulletin seeking the suspect who raped M.R.
A police officer recognized the man in the photo as Brandon Robinson, who
he had encountered the same morning M.R. was raped. Around 2 a.m. that
morning, some college students who lived near M.R. called police because they
saw someone looking into their first floor apartment kitchen window and were
frightened. Arriving officers saw someone, later identified as Robinson, leaning
into an open bedroom window of a different apartment nearby. Robinson insisted
that he knew the female occupant. The woman stated she did not know Robinson.
One of the officers told Robinson “[t]here’s a thing called voyeurism . . . kind of like
a peeping tom” and that if he wanted to “hang out” with someone he should maybe
give the person a call or “just knock on the door like a normal person.” Robinson
left after officers asked him to leave. This interaction with Robinson enabled one
of the responding officers to later recognize the person in the photo provided by
M.R.’s roommate as Robinson, which led to Robinson’s arrest. Later analysis of
-2- No. 85428-3-I
DNA in the rape kit taken during M.R.’s sexual-assault examination revealed that
Robinson’s DNA was included.
Following a trial, a jury convicted Robinson of second-degree rape and first-
degree burglary with sexual motivation. At sentencing, the trial court ruled
Robinson’s prior Pennsylvania offense of aggravated assault was comparable to
the Washington crime of third-degree assault and included it in his offender score.
The trial court imposed a standard-range sentence with community custody
provisions upon release. It also imposed a VPA of $500 and a DNA collection fee
of $100.
Robinson appeals.
II
A. Res Gestae Evidence
Robinson argues the trial court abused its discretion by admitting evidence
regarding his conduct in the hours prior to M.R.’s rape. We disagree.
The trial court admitted the challenged evidence, and denied Robinson’s
motion in limine to exclude it, because it concluded that evidence of Robinson’s
activities in the hours prior to M.R.’s rape falls squarely under the res gestate
doctrine and is therefore admissible. We review that ruling for an abuse of
discretion. State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019). A trial court
abuses its discretion if “‘no reasonable person would take the view adopted by the
trial court.’” State v. Jennings, 199 Wn.2d 53, 59, 502 P.3d 1255 (2022) (quoting
State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001)).
-3- No. 85428-3-I
A leading treatise in Washington describes “res gestae” evidence as
including “evidence of misconduct that is close in time to the crime presently
charged and directly relevant to proving the crime presently charged.” 5 KARL B.
TEGLAND, W ASHINGTON PRACTICE: EVIDENCE § 404.18, at 527 (6th ed. 2016). Such
evidence “completes the story of the crime charged or provides immediate context
for events close in both time and place to that crime.” State v. Sullivan, 18 Wn.
App. 2d 225, 237, 491 P.3d 176 (2021). It “depict[s] a complete picture for . . . the
jury.” State v. Grier, 168 Wn. App. 635, 647, 278 P.3d 225 (2012) (quoting State
v. Acosta, 123 Wn. App. 424, 442, 98 P.3d 503 (2004)) (internal quotation marks
omitted).
Our Supreme Court has admitted evidence under the res gestae doctrine in
a variety of circumstances that are relevant here. In State v. Brown, 132 Wn.2d
529, 574, 940 P.2d 546 (1997), the court admitted a rape victim’s testimony
regarding a sexual assault to rebut a defendant’s claims that a sexual assault of
another victim was consensual where the two assaults were “markedly similar.” In
State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981), the court admitted under
the res gestae doctrine evidence of “uncharged crimes” in an “unbroken sequence
of incidents . . . all of which were necessary to be placed before the jury in order
that it have the entire story of what transpired on that particular evening.” The
court explained that “[e]ach offense was a piece in the mosaic necessarily admitted
in order that a complete picture be depicted for the jury.” Id.
Here, as in Brown and Tharp, the trial court admitted relevant evidence of
Robinson’s conduct prior to the rape that placed him near the time and place of
-4- No. 85428-3-I
the rape (he was near M.R.’s house just a few hours prior to the rape) and also
explained how police were able to identify him as the person in the photograph
obtained by M.R.’s roommate, which connected Robinson to the location of the
rape. The evidence completed the story of the crime charged and provided the
immediate context for events close in both time and place to that crime. As in
Tharp, it was “a piece in the mosaic necessarily admitted in order that a complete
picture be depicted for the jury.” Id. For these reasons, the evidence is properly
considered res gestae evidence, and the trial court did not abuse its discretion in
admitting it as such.
Robinson argues the trial court “needed to decide admissibility of res gestae
evidence under the requirements of ER 404(b)” and abused its discretion by failing
to conduct an ER 404(b) analysis, but his argument is not persuasive. The Tegland
treatise, quoted above, explains, “[b]y time-honored tradition and case law,” ER
404(b) does not apply to res gestae evidence because (1) “misconduct closely
associated with the crime charged is simply not prior misconduct at all so ER
404(b) is out of the picture” and (2) res gestae evidence is “another exception to
the general rule that prior misconduct is inadmissible.” 5 KARL B. TEGLAND,
WASHINGTON PRACTICE: EVIDENCE § 404.18, at 527 (6th ed. 2016). The treatise
concludes: “Either way, the evidence is admissible unless it is barred by some
other rule.” Id. at 50 (rev. ed. & Supp. 2025). Our Supreme Court has likewise
explained that “res gestae evidence more appropriately falls within ER 401’s
definition of relevant evidence, which is generally admissible under ER 402, rather
than an exception to propensity evidence under ER 404(b).” Sullivan, 18 Wn. App.
-5- No. 85428-3-I
2d at 236 (internal quotation marks omitted). 1 Contrary to Robinson’s argument,
no ER 404(b) analysis is required for res gestae evidence, and thus none was
required here.
Robinson also argues the res gestae doctrine should be abandoned in
Washington. As discussed above, our Supreme Court has repeatedly admitted
evidence under the res gestae doctrine in a variety of circumstances that are
relevant here. As recently as 2022, the court held that evidence of uncharged
sexual misconduct was properly admitted as res gestae to explain delayed
reporting in a case alleging rape of a child. State v. Crossguns, 199 Wn.2d 282,
296, 505 P.3d 529 (2022). “We are bound by the decisions of our state Supreme
Court and err when we fail to follow it.” Buck Mountain Owner’s Ass’n v. Prestwich,
174 Wn. App. 702, 716, 308 P.3d 644 (2013). Robinson’s argument on this point
thus fails.
B. Comparability Analysis at Sentencing
Robinson next argues his conviction for aggravated assault in Pennsylvania
was improperly included in his offender score at sentencing. We again disagree.
Washington’s Sentencing Reform Act (SRA) provides “[o]ut-of-state
convictions for offenses shall be classified according to the comparable offense
definitions and sentences provided by Washington law” to calculate a defendant’s
offender score. RCW 9.94A.525(3). “Comparability of a prior out of state
1 See also Tharp, 96 Wn.2d at 594-98 (distinguishing uncharged crimes that were properly admitted
under res gestae while analyzing how trial court failed to conduct ER 404(b) balancing of necessity against prejudice in its admission of a prior conviction and furlough status from the Department of Institutions that had no direct connection with the crime charged).
-6- No. 85428-3-I
conviction is reviewed de novo.” State v. Sublett, 176 Wn.2d 58, 87, 292 P.3d 715
(2012). Sublett provides the two-part test for comparability:
To determine whether a foreign offense is comparable to a Washington offense, we first consider if the elements of the foreign offense are substantially similar to the Washington counterpart. If so, the inquiry ends. If not, we determine whether the offenses are factually comparable, that is, whether the conduct underlying the foreign offense would have violated the comparable Washington statute.
Id. (citing State v. Thiefault, 160 Wn.2d 409, 414-15, 158 P.3d 580 (2007)). Here,
as in Sublett, there is no adequate factual record of the Pennsylvania conviction
so comparability must be determined based solely on the legal elements of the
crime. 2
In determining legal comparability, the elements of the two crimes need not
be identical; instead, they must be “substantially similar.” In re Pers. Restraint of
Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). As the court explained in State
v. Jordan, 180 Wn.2d 456, 465, 325 P.3d 181 (2014), “Given the legislature’s
broad purpose and the SRA’s loose point assignment, we have interpreted the
SRA as requiring rough comparability—not precision—among offenses.”
Succinctly put, “comparability analysis is not an exact science.” State v. Stockwell,
159 Wn.2d 394, 397, 150 P.3d 82 (2007).
Applying these legal principles here, the elements of the two offenses are
sufficiently comparable. In Pennsylvania, “[a] person is guilty of aggravated
assault if he attempts to cause serious bodily injury to another, or causes such
2 The appellate record contains the information and criminal complaint but no evidentiary basis to
establish a factual comparison to Washington’s third degree assault is provided, such as a stipulation or acknowledgement of guilt from Robinson as to any underlying facts.
-7- No. 85428-3-I
injury intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1). “Serious
bodily injury,” in turn, means “[b]odily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” 18 Pa.C.S. § 2301.
The Washington statute for assault in the third degree, in turn, provides, “A person
is guilty of assault in the third degree if he or she . . . [w]ith criminal negligence,
causes bodily harm accompanied by substantial pain that extends for a period
sufficient to cause considerable suffering.” RCW 9A.36.031(1)(f).
As can be seen from the text of the statutes, the crimes are “substantially
similar” and “roughly comparable.” Just as Washington requires assaultive
conduct that “causes bodily harm accompanied by substantial pain that extends
for a period sufficient to cause considerable suffering,” Pennsylvania requires
conduct that causes “bodily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. While not identical,
these elements are “roughly comparable.”
Furthermore, the mens rea elements of the two crimes are comparable.
The Pennsylvania statute requires that the defendant act “intentionally, knowingly
or recklessly.” 18 Pa.C.S. § 2702(a)(1). The Washington statute requires “criminal
negligence,” RCW.9A.36.031(1)(f), and RCW 9A.08.010(2) defines that
requirement as follows: “When a statute provides that criminal negligence suffices
to establish an element of an offense, such element also is established if a person
-8- No. 85428-3-I
acts intentionally, knowingly, or recklessly.” RCW 9A.08.010(2). Thus, the mens
rea elements are also legally comparable.
Robinson argues the statutes are not legally comparable because the
Pennsylvania statute includes “attempt” and the Washington statute does not, but
this argument also fails. In State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439
(2009), the court explained the term “assault” is “an element of the crime” of assault
and is defined by common law to include “(1) an unlawful touching (actual battery);
(2) an attempt with unlawful force to inflict bodily injury upon another, tending but
failing to accomplish it (attempted battery); and (3) putting another in apprehension
of harm.” Applying the second prong of this definition, the Washington assault
statute, like the Pennsylvania statute, includes attempt. The trial court did not err
when it included the Pennsylvania conviction in Robinson’s offender score at
sentencing.
C. Community Custody Condition Concerning Geographic Boundaries
Robinson next argues the community custody condition concerning
geographic boundaries imposed by the trial court at sentencing was
unconstitutionally vague. That condition requires that Robinson “[r]emain within
geographic boundaries, as set forth in writing by the Department of Correction
Officer or as set forth with SODA [Stay Out of Drug Area] order.” Our recent
opinion in State v. Lundstrom, __ Wn. App. 2d __, 572 P.3d 1243, 1245-46 (2025),
holds that an identical community custody condition imposing geographical
boundaries, as mandated by RCW 9.94A.704(3)(b), is not unconstitutionally
vague. Applying Lundstrom here, Robinson’s contrary argument fails.
-9- No. 85428-3-I
D. VPA and DNA Collection Fee
Lastly, Robinson argues remand is necessary to strike the VPA and DNA
collection fee from his judgment and sentence because the legislature amended
the VPA statute to prohibit imposition of the VPA on indigent defendants as of July
1, 2023 and amended the DNA collection fee statute to allow waiver of the DNA
collection fee upon motion of the offender also as of July 1, 2023. Because
Robinson has made a sufficient showing of indigency and the State does not
oppose his request, we remand for the trial court to strike the VPA and DNA
collection fee from Robinson’s judgment and sentence. See State v. Ellis, 27 Wn.
App. 2d 1, 16, 530 P.3d 1048 (2023) (“Although [the] amendment [to RCW
7.68.035] will take effect after Ellis’s resentencing, it applies to Ellis because this
case is on direct appeal.”).
In all other respects, we affirm.
WE CONCUR:
- 10 -