Opinion
Nos. 54793-3-I; 54857-3-I.
May 8, 2006.
Appeals from a judgment of the Superior Court for Whatcom County, Nos. 02-1-01553-3 and 02-1-01343-3, Michael F. Moynihan, J., entered August 19, 2004.
Counsel for Appellant(s), Christopher Gibson, Nielsen Broman Koch PLLC, 1908 E Madison St, Seattle, WA 98122-2842.
Catherine E. Glinski, Attorney at Law, PO Box 761, Manchester, WA 98353-0761.
Susan F. Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F St, Bellingham, WA 98225-3011.
Hilary A. Thomas, Whatcom County Prosecutors Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Thomas Lawrence Verge, Whatcom Co Pros Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Affirmed by unpublished opinion per Agid, J., concurred in by Appelwick, C.J., and Cox, J.
On October 26, 2004, someone vandalized the windows of several Bellingham businesses with acid-etched graffiti. The graffiti featured the words 'GRAVE', 'HYMN' and 'SERIES.' Michael Foxhoven (SERIES) and Anthony Sanderson (HYMN) were convicted of multiple counts of first and second degree malicious mischief and ordered to pay restitution. They appeal their convictions on the ground that evidence of prior bad acts was improperly admitted in violation of ER 404(b). In his pro se statement of additional grounds, Sanderson argues the trial court erred by admitting evidence illegally seized from his computer because police searched it without his consent and the warrant was insufficiently particular. Foxhoven argues in his pro se statement of additional grounds that his sentence was disproportionate to his co-defendant's and the court based his restitution order on untenable grounds.
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. The court properly admitted evidence from Sanderson's computer because the warrant authorized a search for digital images like those found on a computer. Finally, Foxhoven's sentence was not the same as the others involved in the crimes because his offender score was significantly higher than theirs, and the court correctly based its restitution order on the harm his acts caused. We affirm.
FACTS
When police investigated the October 26 graffiti vandalism, it led them to three suspects: Anthony Sanderson (HYMN), Michael Foxhoven (SERIES), and Desmond Gabriel Hansen (GRAVE). Officer Don Almer, the Bellingham Police Department's graffiti specialist, obtained a search warrant for Anthony Sanderson's home when he learned Sanderson was associated with the HYMN tag. The warrant authorized the search and seizure of items recognized as graffiti and tagging paraphernalia . . . including but not limited to: . . . images of graffiti or graffiti-related malicious mischief in progress recorded in any form and/or on any medium, paperwork, or documents, or objects documenting graffiti tags and any evidence of Anthony E. Sanderson's criminal acts of malicious mischief.
At Sanderson's house, police found examples of the HYMN tag in his bedroom and on his computer. While searching his home, Officer Almer told him he was neither under arrest nor required to speak to police, but asked him questions concerning the October graffiti. During this conversation Sanderson admitted both that he and Hansen were responsible for the graffiti and he used the HYMN tag.
Officer Almer also received information from the Bay Area Rapid Transit Police Department (BART) about Foxhoven, who had moved from the San Francisco area to Bellingham. BART reported that Foxhoven was connected to graffiti incidents in the San Francisco area in which he used the tag SERIES. Based on this information, Officer Almer obtained a search warrant for Foxhoven's apartment. During the search, police found images of the HYMN and SERIES tags in photographs filed in storage boxes, albums, piece books, and on wall canvases. Some of the photographs showed Foxhoven posing next to the SERIES tag. Others were photographs of the SERIES tag on walls, dumpsters, trains, containers, and a military helicopter. Police also found digital images and a movie depicting the SERIES tag on Foxhoven's computer.
When Almer spoke to Foxhoven, he denied being involved in the Bellingham incidents but admitted to a prior California arrest for graffiti using the SERIES tag. Foxhoven said he was no longer an active tagger but used the photographs seized by police in his graphic design work because the style was popular. Foxhoven also said he knew Hansen and Sanderson but did not know them as the taggers GRAVE and HYMN.
The Whatcom County Prosecuting Attorney charged Hansen, Sanderson and Foxhoven with multiple counts of first degree and second degree malicious mischief. Hansen pled guilty to several counts, but Sanderson and Foxhoven went to trial as co-defendants. Sanderson moved to suppress his statements to Officer Almer because he did not get his Miranda warnings. He also moved to suppress evidence from the search of his computer, arguing the search warrant did not authorize the search. The court denied both motions. It ruled Sanderson's statements to Officer Almer were admissible because they were noncustodial. It also found the warrant was broad enough to authorize the search of the computer, and Sanderson had consented to the search. Sanderson and Foxhoven also moved to suppress photographic and other evidence of their earlier graffiti-related activities. The court admitted the evidence under the modus operandi and common scheme or plan exceptions to ER 404(b).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The admitted evidence included: (1) an investigation of Sanderson for train yard vandalism on June 17, 2002, based on incidents also involving Desmond Hansen; (2) numerous HYMN tags found in Hansen's bedroom as well as piece books and roll calls associating SERIES, HYMN and GRAVE; (3) photographs of Sanderson and Hansen on a graffiti website; (4) photographs of a HYMN tag on a train and of Sanderson painting HYMN on a train; (5) numerous loose-leaf sheets of paper with HYMN TWO and TONY written on them found in Sanderson's room; (6) 50-60 images of HYMN graffiti found on Sanderson's computer; and (7) piece books with the tags SERIES and HYMN found in Foxhoven's residence.
Sanderson was convicted of one count of first degree and six counts of second degree malicious mischief. He was sentenced to 18 months and ordered to pay $6,670.07 in restitution. Foxhoven was convicted of three counts of first degree malicious mischief, nine counts of second degree malicious mischief, and two counts of third degree malicious mischief. He was sentenced to 50 months and ordered to pay $8,009.66 in restitution.
DISCUSSION I. Evidence Rule 404(b)
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.
The State offered and the court admitted evidence of Sanderson's and Foxhoven's prior acts of graffiti to prove their identities as HYMN and SERIES. Foxhoven and Sanderson argue the trial court incorrectly analyzed the evidence under the test set forth in State v. Thang and should not have relied on their admissions that they had used the HYMN and SERIES tags before.
145 Wn.2d 630, 642, 41 P.3d 1159 (2002); see also State v. Trickler, 106 Wn. App. 727, 732, 25 P.3d 445 (2001); ER 403.
Evidence that would otherwise be inadmissible may be admitted to show the modus operandi of the crime. That exception applies only if the method used in the earlier crimes is "so unique" that it creates a high probability the defendant committed the crimes charged. The method should be unique and distinctive enough to be like a signature. Foxhoven and Sanderson argue that there was no signature-like similarity between the tags featured in the photographs seized in their homes and the Bellingham graffiti because the method, style, and location of the tags were different. Foxhoven also argues that his California acts were so long before the Bellingham graffiti that they were no longer probative. The State contends it presented sufficient evidence to show the defendants' consistent use of the SERIES and HYMN tags literally made the tags their unique signatures. It asserts that graffiti artists like Sanderson and Foxhoven use their tags to communicate their identity to other members of their graffiti subculture.
Thang, 145 Wn.2d at 643 (quoting State v. Russell, 125 Wn.2d 24, 66-67, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995)).
Thang, 145 Wn.2d at 642.
Trial courts have broad discretion in ruling on evidentiary matters, and their rulings will not be overturned on appeal absent a manifest abuse of discretion. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.
State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001) (citing State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997)).
In re Parentage of J.H., 112 Wn. App. 486, 495, 49 P.3d 154 (2002), review denied, 148 Wn.2d 1024 (2003).
Before a court may admit ER 404(b) evidence it must: (1) find by a preponderance of the evidence the misconduct occurred; (2) determine whether the evidence is relevant to a material issue; (3) state on the record the purpose for which the evidence is being introduced; and (4) balance the probative value of the evidence against the danger of unfair prejudice. Evidence is relevant if it tends to make the existence of any significant fact more or less probable than it would be without the evidence.
Thang, 145 Wn.2d at 642; see also Trickler, 106 Wn. App at 732.
ER 401.
Officer Almer testified about the use of tags as signatures among graffiti artists. The purpose behind using a tag within the graffiti culture is to identify the tagger to other graffiti artists. The manner in which the tags are applied and the surface they appear on are secondary to the tag itself. Whether the tags are applied using paint or acid-etching, upon helicopters, bridges, train cars, posters or windows, the signature quality of the tags remains the same. Both Foxhoven and Sanderson admitted to using these tags in other graffiti, and that graffiti varied significantly in style and location. The many photographs the police found of Foxhoven's and Sanderson's earlier acts of graffiti demonstrate that the 'signature' comes not from the surface or medium but rather from the connection between the tag and the artist who draws it. That these were Foxhoven's and Sanderson's signatures is demonstrated by the photographs which included images of them posing with their signature tags. This evidence, coupled with Foxhoven and Sanderson's own admissions to using the tags, was both relevant and highly probative of the identity of the taggers. While the tags in question do vary in their font, style, medium and the objects on which they were painted, these apparent differences go to the weight rather than the admissibility of this evidence. The defendants had every opportunity to argue, and did argue, that the tags were used by someone other than themselves. We hold the trial court did not abuse its discretion when it admitted Foxhoven's and Sanderson's prior acts of graffiti.
Both Sanderson and Foxhoven's statements to Officer Almer were admissible because they were non-custodial and voluntarily made. Before Sanderson told Officer Almer he was identified with the HYMN tag and had committed the crimes in Bellingham, he was told he was neither arrested nor required to speak to police. After the search of his apartment, Foxhoven called Officer Almer on the telephone and admitted he had previously used the SERIES tag in the San Francisco Bay area.
II. Search and Seizure
In his pro se brief, Sanderson argues the court should have suppressed all evidence seized on his computer because the warrant did not permit police to search it and he did not give valid consent to the search. He contends the court should have analyzed the warrant with 'most scrupulous exactitude' because graffiti is protected speech under the First Amendment. He also asserts his consent was invalid because the police did not tell him he could refuse or revoke consent, and they failed to limit the scope of the search of his computer as required in State v. Ferrier. Alternatively, he argues he revoked his consent when he refused to give Officer Almer permission to search his C-Drive.
Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965).
136 Wn.2d 103, 114, 960 P.2d 927 (1998).
The State contends the warrant authorized police to search for 'images of graffiti or graffiti-related malicious mischief,' including the digital images found on Sanderson's computer. It asserts the warrant need not be reviewed under the 'scrupulous exactitude' standard of State v. Perrone because the First Amendment does not protect acts of vandalism or photographs of criminal activities. Finally, it argues Sanderson consented to the search when he helped Officer Almer search his computer.
119 Wn.2d 538, 548, 834 P.2d 611 (1992) ('[W]here items [are] without First Amendment protection, there need not be an extremely stringent test of specificity.').
Under the Fourth Amendment, 'no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' Warrants are tested and interpreted in a common sense, practical manner rather than in a hypertechnical sense. But search warrants must be sufficiently definite to describe the property to be sought with reasonable certainty. This particularity requirement prevents the issuance of '[g]eneral warrants' authorizing unlimited searches and seizures by requiring a "particular description" of the things to be seized. We review de novo allegations that a search warrant does not satisfy the particularity requirement.
U.S. Const. amend. IV.
Perrone, 119 Wn.2d at 549.
State v. Muldowney, 60 N.J. 594, 292 A.2d 26 (1972); 2 Wayne R. LaFave, Search and Seizure sec. 4.6(a), at 551 (3d ed. 1996).
Andresen v. Maryland, 427 U.S. 463, 480, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)).
State v. Nordlund, 113 Wn. App. 171, 180, 53 P.3d 520 (2002), review denied, 149 Wn.2d 1005 (2003); State v. Stenson, 132 Wn.2d 668, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).
Generally, the degree of specificity required varies according to the circumstances and the kind of items involved. A warrant's description is valid if it is as specific as the circumstances of the crime under investigation permit. Generic classifications are not necessarily impermissibly broad so long as there is probable cause and the precise identity of items sought can be determined when the warrant was issued. For example, in State v. Stenson the Washington Supreme Court held the general description of business records and documents in a warrant was not impermissibly broad because it limited the search to items indicating a relationship between the defendant and murder victim he was accused of killing.
Perrone, 119 Wn.2d at 546.
Id. at 547.
Id.
Here, the warrant for Sanderson's home limited the scope of the search to evidence of crimes Sanderson was suspected of committing by specifying Sitems . . . including but not limited to: . . . images of graffiti or graffiti-related malicious mischief in progress recorded in any form and/or on any medium . . . documenting graffiti tags and any evidence of Anthony E. Sanderson's criminal acts of malicious mischief.' A commonsense reading of this language clearly permitted a search for images recorded in a digital format, including images found on a computer. The trial court correctly admitted the evidence found on Sanderson's computer.
Because we resolve this issue based on the warrant, we need not determine whether the consent was valid and/or revoked.
III. Sentencing
Foxhoven argues his sentence was excessive because it is far longer than his co-defendants' sentences. He contends his 50-month sentence was unjust and disproportionate to Desmond Hansen's one-year sentence and Anthony Sanderson's 18-month sentence. But Foxhoven's sentence cannot be compared to either Hansen's or Sanderson's. Hansen entered into a plea agreement in exchange for his sentence. Sanderson and Foxhoven were convicted of a different number of counts, and Foxhoven had a higher offender score. Foxhoven does not challenge the accuracy of his offender score, and his sentence was correctly computed.
Foxhoven was convicted of three counts of first degree malicious mischief, nine counts of second degree malicious mischief, and two counts of third degree malicious mischief. He had an offender score of 12 based on a prior class B felony conviction for theft. On the other hand, Sanderson was found guilty of only one count of first degree malicious mischief and six counts of second degree malicious mischief. His offender score was only five, and he did not have a prior criminal history.
IV. Restitution Order
The court ordered Foxhoven to pay $8,009.66 in restitution for damage caused by the defendants' graffiti. Foxhoven challenges the restitution order on the ground the State failed to prove with certainty the amount of damages. The State did not respond to Foxhoven's Statement of Additional Grounds.
We reject Foxhoven's argument. The trial court has great discretion when imposing restitution, and we will only reverse a restitution order for an abuse of discretion. RCW 9.94A.753(3) directs trial courts to impose restitution based on 'easily ascertainable damages.' Evidence supporting restitution is sufficient if it provides a reasonable basis for estimating loss and is not based on mere speculation or conjecture. The amount of harm or loss "need not be established with specific accuracy." The trial court may rely on a defendant's acknowledgment to determine the amount of restitution. Where a defendant disputes the facts, the State must prove the amount of restitution by a preponderance of the evidence. Former RCW 9.94A.030(34) defines restitution as 'a specific sum of money ordered by the sentencing court to be paid by the offender to the court over a specified period of time as payment of damages. The sum may include both public and private costs.' Here, the evidence presented at the restitution hearing was sufficient to establish the damage the graffiti caused. The trial court's restitution order was based on this evidence and was therefore not manifestly unreasonable or based on untenable grounds.
State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005) (citing State v. Enstone, 137 Wn.2d 675, 679, 974 P.2d 828 (1999)).
State v. Fleming, 75 Wn. App. 270, 274-275, 877 P.3d 243 (1994) (quoting State v. Pollard, 66 Wn. App. 779, 785, 834 P.2d 51, review denied, 120 Wn.2d 1015 (1992)), petition dismissed, 129 Wn.2d 529, 919 P.2d 66 (1996).
Hughes, 154 Wn.2d at 154 (quoting Fleming, 75 Wn. App. at 274).
State v. Hunsicker, 129 Wn.2d 554, 558-59, 919 P.2d 79 (1996); State v. Ryan, 78 Wn. App. 758, 761, 899 P.2d 825, review denied, 128 Wn.2d 1006 (1995).
State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000).
Former RCW 9.94A.030(34) (2002), recodified as RCW 9.94A.030(37) (Laws of 2005, ch. 436 sec. 1).
We affirm.
APPELWICK and COX, JJ., concur.