State v. Foxhoven

163 P.3d 786
Washington Supreme Court·Decided August 2, 2007·No. 78888-0·Published·Cited by 189 cases

Opinion

163 P.3d 786 (2007)

STATE of Washington, Respondent,
v.
Lawrence Michael FOXHOVEN, Petitioner.
State of Washington, Respondent,
v.
Anthony Espinoza Sanderson, Petitioner.

No. 78888-0.

Supreme Court of Washington, En Banc.

Argued May 31, 2007.
Decided August 2, 2007.

*787 Hilary A. Thomas, Whatcom County Prosecutors Office, Bellingham, WA, for Respondent.

Susan F. Wilk, Washington Appellate Project, Christopher Gibson, Nielsen Broman & Koch PL, Seattle, WA, for Petitioner.

ALEXANDER, C.J.

¶ 1 In 2004, petitioners Lawrence Michael Foxhoven and Anthony Sanderson were each found guilty of several counts of malicious *788 mischief for etching graffiti on the windows of several businesses. The graffiti included three different "tags,"[1] two of which police concluded were used by petitioners. At their joint trial, the judge admitted evidence that each petitioner had used one of the tags on previous occasions. Petitioners claim that evidence was improperly admitted under Evidence Rule (ER) 404(b), which excludes evidence of prior bad acts when that evidence is used for the purpose of proving conformity with those actions on a different occasion. We conclude that the evidence was admissible to prove modus operandi in order to corroborate or establish the identity of the persons responsible for the graffiti vandalism charged. We, therefore, affirm the convictions.

I

¶ 2 In October 2001, graffiti was etched with acid into the windows of a number of businesses in downtown Bellingham. The graffiti consisted of three different tags: "HYMN," "GRAVE," and "SERIES." Investigating officers determined that petitioner Sanderson is associated with the tag "HYMN" and petitioner Foxhoven with the tag "SERIES." Foxhoven, Sanderson, and a third person who was associated with the tag "GRAVE" were each charged in Whatcom County Superior Court with several counts of malicious mischief for the graffiti. The third person pleaded guilty to several counts of malicious mischief, but petitioners proceeded to a joint trial before a jury.

¶ 3 Before trial, Foxhoven and Sanderson each moved to exclude any evidence of prior bad acts under ER 404(b). Foxhoven specifically objected to the admission of (1) his criminal history of graffiti from California and (2) photographs seized from Foxhoven's home that depicted graffiti involving the "SERIES" tag. CP-F[2] at 75. Sanderson objected to the admission of (1) his prior arrests for graffiti, (2) drawings of the "HYMN" tag seized from his home, (3) photos of him painting the "HYMN" tag, and (4) photos of graffiti involving the "HYMN" tag that were seized from his home. CP-S at 119, 123-24, 135-36. The trial judge denied the petitioners' motions, ruling, "Other acts of graffiti vandalism may be admitted to show a `common scheme or plan' or to establish a particular `modus operandi.'" CP-F at 98; CP-S at 56. In his order, the judge made the following findings of fact:

1. . . . . The State alleges that each vandal had adopted a distinctive tag (pseudonym) and vandalized property with that unique tag again and again for years until it had become their vandalism identity. The State alleges that part of the overarching scheme or plan of such vandals is to gain notoriety in the graffiti subculture by placing their adopted vandal names on the property of others. . . .
2. The "probative value" of evidence tending to show that each defendant is committed to a culture that explicitly encourages vandalism and that each defendant marks his crime with his unique signature is extremely high. In fact, such evidence is "necessary" for a fair determination of thee cases.
3. There is no "unfair prejudice." The other acts for which evidence will be admitted are not marginally related or emotionally inflammatory. Instead, they are intimately related to the alleged motive for this crime (notoriety) and not emotionally inflammatory.
4. The probative value is not outweighed by the danger of unfair prejudice.

CP-F at 97-98; CP-S at 55-56.

¶ 4 The challenged evidence was admitted in trial, with the following limiting jury instruction:

Ladies and gentlemen of the jury, evidence has been introduced in this case previously and is being introduced at this time on the subject of the defendant's association with persons accused of graffiti vandalism or *789 prior acts of graffiti vandalism for which they're not charged here today. This is being offered by the prosecution for the limited purposes of either modus operandi or common, [sic] scheme plan or design. You're not to consider the evidence for any other purpose. I'll give you another instruction on that later on.

4 Verbatim Report of Proceedings (VRP) at 452.

¶ 5 Foxhoven was found guilty of four counts of first degree malicious mischief and 11 counts of second degree malicious mischief; Sanderson was found guilty of two counts of first degree malicious mischief and five counts of second degree malicious mischief. The judge subsequently dismissed one count against Foxhoven. He also reduced the degree of three other counts against Foxhoven and one count against Sanderson. Both petitioners received sentences that were within the standard range and were ordered to pay restitution.

¶ 6 The petitioners appealed separately to Division One of the Court of Appeals, each claiming primarily that the evidence described above was improperly admitted under ER 404(b). The Court of Appeals consolidated their appeals and affirmed the trial court, concluding, "The trial court did not err by admitting the evidence that Foxhoven and Sanderson engaged in prior acts of graffiti under the modus operandi exception to ER 404(b) because the tags were signature-like and both defendants admitted they had used the same tags before." State v. Foxhoven, 132 Wash.App. 1053, No. 54793-3-I, slip op. at 2, 2006 WL 1217213, *1 (Wash.Ct.App. May 8, 2006). The Court of Appeals did not discuss whether or not the evidence was admissible to show common scheme or plan. Foxhoven and Sanderson sought review of the Court of Appeals' decision on various grounds, and we granted review on the ER 404(b) issue only.

II

¶ 7 Interpretation of an evidentiary rule is a question of law, which we review de novo. State v. DeVincentis, 150 Wash.2d 11, 17, 74 P.3d 119 (2003). When the trial court has correctly interpreted the rule, we review the trial court's decision to admit evidence under ER 404(b) for an abuse of discretion. Id.; State v. Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002). "Discretion is abused if it is exercised on untenable grounds or for untenable reasons." Thang, 145 Wash.2d at 642, 41 P.3d 1159 (citing State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971)). Failure to adhere to the requirements of an evidentiary rule can be considered an abuse of discretion. State v. Neal, 144 Wash.2d 600, 609, 30 P.3d 1255 (2001) (citing State v. Rivers, 129 Wash.

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