Opinion
No. 63419-4-I.
March 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-12305-3, Julie A. Spector, J., entered May 1, 2009.
Affirmed by unpublished opinion per Ellington, J., concurred in by Dwyer, A.C. J., and Lau, J.
Orlen Darden was convicted of two counts of felony harassment for threatening to kill a community corrections officer and a sheriff's deputy. He appeals, arguing the trial court improperly admitted evidence that he was a felon on community custody at the time of the offense. We conclude the evidence was admissible to prove the reasonableness of the officers' fear and the circumstances of the crime, and affirm.
BACKGROUND
On October 24, 2008 around 11:30 p.m., Deputy Jeffrey Hancock and Michael Schemnitzer, a community corrections officer, were riding together in Hancock's patrol car when they responded to assist another officer with a traffic stop in White Center. Both officers recognized Orlen Darden as one of the passengers in the back seat of the stopped car. They also recognized him as a prominent member of the West Side Crime Family street gang. As Hancock approached the car, he observed Darden reach into his pocket and asked Darden to show his hands. Darden kept one hand in his pocket and said, "[W]hat are you going to do, are you going to fucking shoot me? . . . [Y]ou ain't going to shoot me, you can't do it." Darden continued to taunt Hancock.
The court allowed the State to introduce evidence of gang affiliation and other gang-related evidence. The admission of that evidence is not an issue before us.
Report of Proceedings (RP) (Mar. 17, 2009) at 79-80.
The officers arrested Darden for a Department of Corrections violation and placed him in Hancock's patrol car. Darden attempted to persuade the officers to release him, and became irate when he heard Hancock radio that he was en route to King County to jail. Darden stuck his head through the opening of the plastic panel dividing the front and rear sections of the patrol car and began yelling at both officers. He threatened that Hancock would "get a bullet in the head," just like his "homey shot [Deputy Steve Cox] in the head." Cox had been killed a few years earlier by a gang member, who shot him in the head. Cox was Schemnitzer's partner, and Hancock had taken over Cox's work after his death. Darden also threatened to kidnap and "cap" the two officers, and kidnap, rape, and kill the officers' wives and children. Darden warned Hancock to stay out of White Center or "get a bullet in [his] head," and swore the threat "on West Side Crime Fam." Darden continued making threats until they arrived at the jail.
Id. at 89.
RP (Mar. 17, 2009) at 91.
Both officers testified that they believed Darden would carry out his threats.
Both officers told their wives about the threats and developed safety plans for their families. Hancock testified that in his 12 years of experience, he had never taken such measures.
The State charged Darden with two counts of felony harassment for threatening Schemnitzer and Hancock. Before trial, Darden moved the court to exclude evidence regarding prior felony convictions. The State intended to use the evidence of his felony conviction to prove, inter alia, the officer's reasonable fear that Darden would carry out his threats.
The State also charged two aggravating factors for each count. The State alleged the threat had a destructive and foreseeable impact on persons other than the victim. RCW 9.94A.535(3)(r). It also alleged he committed the offense against a law enforcement officer performing official duties at the time of offense, with knowledge that the victims were law enforcement officers. RCW 9.94A.535(3)(v).
After trial, the jury return found Darden guilty as charged. The court sentenced Darden to exceptional concurrent sentences of 58 months on each count. Darden appeals.
The jury also returned special verdicts finding both aggravating factors satisfied.
DISCUSSION
Darden contends the trial court erred by admitting evidence of his felony conviction. Evidence of prior misconduct under ER 404(b) is inadmissible to show that the defendant is a dangerous person or a "criminal type" and is thus likely to have committed the crime for which the defendant is charged. ER 404(b) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
5D Karl B. Tegland, Washington Practice: Courtroom Handbook on Washington Evidence, author's cmt. (3), at 235-36 (2009-2010 ed.).
To admit evidence of other crimes or misconduct under ER 404(b), the trial court must identify on the record the purpose for which it is admitted. The court must determine that (1) the prior bad act occurred by a preponderance of the evidence, (2) the evidence is offered for an admissible purpose, (3) the evidence is relevant to prove an element of the charged or rebut a defense, and (4) the evidence is more probative than prejudicial. We review a decision to admit prior bad acts evidence for abuse of discretion. A court abuses its discretion when its decision is manifestly unreasonable or bases it upon untenable grounds or reasons.
State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997).
State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).
State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
To prove felony harassment, the State had to show Darden threatened to kill a person and placed that person in reasonable fear that the threat would be carried out. Whether the victim's fear is reasonable is determined by an objective standard. The State must demonstrate that the threats are not mere "puffery" or "idle talk."
RCW 9A.46.020(1)(a)(i), (b).
State v. Ragin, 94 Wn. App. 407, 411, 972 P.2d 519 (1999).
State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004); State v. J.M., 144 Wn.2d 472, 481-82, 28 P.3d 720 (2001).
The court concluded that Darden's status as a felon on community custody was relevant to the officers' state of mind and the reasonableness of their fear that Darden would carry out his threats. Indeed, Hancock testified that he was more concerned about Darden's threats because he knew that Darden was a felon on community custody. Mindful of the potential for undue prejudice, the court prohibited the State from referring to Darden as a "violent felon" and instructed the jury to consider Darden's felony conviction only for the purpose of assessing the officers' state of mind and whether they reasonably feared Darden's threats would be carried out.
See State v. C.G., 150 Wn.2d 604, 611, 80 P.3d 594 (2003) (determining the nature of a threat necessarily requires examination of the facts and circumstances surrounding the threat).
We cannot say the court abused its discretion by admitting the evidence and limiting its use to this purpose. Further, we believe the evidence was also properly admitted as res gestae to explain how the officers knew Darden, why he was arrested, and to provide the jury a context for the events surrounding the crime. Accordingly, we affirm.
State v. Acosta, 123 Wn. App. 424, 442, 98 P.3d 503 (2004) (res gestae evidence admissible where it's part of a sequence of events surrounding the charged offense in order to provide the jury a complete picture).
Darden alleges in his statement of additional grounds for review that his counsel denied him his right to testify, used a racial slur during trial, and failed to pursue a potential witness. These allegations fall outside the record and therefore cannot be considered on direct review. If Darden wishes to bring a claim of ineffective assistance of counsel based upon matters outside the appellate record, he must do so by means of a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 338 n. 5, 899 P.2d 1251 (1995).
WE CONCUR.