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The Court of Appeals of Washington, Division OneJun 20, 2000
No. 44537-5-I. (Wash. Ct. App. Jun. 20, 2000)

No. 44537-5-I.

File Date: June 20, 2000. UNPUBLISHED OPINION

Appeal from Superior Court of Whatcom County, No. 98-1-01101-0, Hon. Michael F. Moynihan, April 5, 1999, Judgment or order under review.

Richard R. Tassano, Washington Appellate Project, for Appellant(s).

Elizabeth L. Gallery-Fox, Whatcom Co Courthouse, Laura D. Hayes, Whatcom County Prosecutor's Office, for Respondent(s).

Leonid Shintar was convicted of felony harassment after threatening to kill Andrei Popov and his family. In order to prove that Popov's fear was objectively reasonable, the State introduced evidence that Popov had previously seen Shintar carrying a gun. Shintar appeals, arguing that evidence which chills the exercise of a constitutional right may not be admitted without weighing on the record its probative value against its prejudicial effect. Finding no error, we affirm.

Popov and Shintar worked for Whirlwind Services, a parking lot and street sweeping service. One evening, Popov drove to work and parked his car in the Whirlwind lot. Shintar and Popov were scheduled to work together that night, but Shintar failed to show up. After waiting for more than an hour, Popov headed to the job site alone. As Popov was working, Shintar drove up and placed his car directly in front of Popov's sweeper truck. Shintar appeared to be drunk and was swearing. He told Popov to finish the job on his own and then to punch both of their cards at the end of the shift.

When Popov refused, Shintar threatened to kill Popov and his family, and to ruin or damage everything Popov had.

After Shintar left, Popov was too anxious to continue working. Upon returning to the Whirlwind lot, Popov discovered that his car had been severely damaged. The windshield, headlights, and taillights had been smashed, all of the doors and the hood had been dented, and all four tires were slashed. Other cars in the lot were not damaged. Popov immediately called the police.

Popov testified that when he saw his damaged car, he felt that Shintar's threats were real and that Shintar was capable of carrying them out. He also testified that he had seen Shintar with a gun on a previous occasion, and that this made him nervous and scared. The responding officers confirmed that Popov appeared to be nervous, anxious, and scared. They felt that Popov had taken the threats seriously and that he was concerned for the safety of himself and his family.

Shintar was charged with one count of malicious mischief in the first degree and two counts of felony harassment. At a pretrial hearing to address motions in limine, Shintar sought to exclude any mention of a firearm that Popov may have observed in Shintar's possession at some previous date, arguing that such evidence was more prejudicial than probative. The State contended that the evidence was relevant to prove that Popov's fear was objectively reasonable. The court resolved the motion in favor of the State:

The motion to exclude will be denied. It can come in in regards to {Popov's} testimony, regarding {Popov's} reasonable fear; I have no trouble with that at all, so the testimony can come in.

The jury found Shintar guilty on all three counts. Shintar appeals his felony harassment convictions. Shintar argues that evidence that Popov previously saw him carrying a gun had a chilling effect on his constitutional right to bear arms, because individuals who exercise this right must decide whether they are willing to take the risk that this fact could be used against them in a subsequent criminal prosecution. Because a constitutional right is implicated, Shintar argues that the trial court was required to place its rationale for admission of such evidence on the record.

During allocution, Shintar admitted vandalizing Popov's car but continued to deny having threatened him.

Admissibility of other acts evidence under ER 404(b) is reviewed for abuse of discretion. Before admitting such testimony, the court must determine whether the evidence is `logically relevant and necessary to prove an essential element of the crime.' If the court determines that the proposed evidence is relevant, it must then decide whether the probative value of the evidence outweighs its prejudicial effect. The court must articulate the reasons for its decision on the record. However, `{w}here the record reflects that the trial court has adopted the express argument of one of the parties as to the relative weights of probative value and prejudice,' there is no error.

State v. Binkin, 79 Wn. App. 284, 289, 902 P.2d 673 (1995), review denied, 128 Wn.2d 1015 (1996).

ER 403; Binkin, 79 Wn. App. at 289.

Carleton, 82 Wn. App. at 685.

We first note that this evidence was unquestionably relevant. In order to prove felony harassment, the State must show that the victim was placed in reasonable fear that the threat would be carried out. The evidence was offered to show that Popov believed Shintar was readily capable of carrying out his threats and was thus relevant to demonstrate Popov's state of mind.

Next, we reject Shintar's argument that admission of this evidence unnecessarily chilled or penalized his constitutional right to bear arms under State v. Rupe. In Rupe, the trial court allowed the prosecutor to introduce evidence that Rupe owned an extensive gun collection. From this evidence, the prosecutor inferred that Rupe deserved the death penalty. The Washington Supreme Court held that the evidence was inadmissible, noting that `adverse inferences may not be drawn from constitutionally protected behavior.' Here, in contrast, evidence that Popov had seen Shintar carrying a gun was not used for the purpose of drawing an adverse inference about Shintar's character. Rather, the evidence bore directly on an essential element of the case: whether Popov's fear was objectively reasonable. The trial court did not abuse its discretion in admitting this evidence.

Finally, we conclude that the record sufficiently reflects that the trial court weighed the probative value of the evidence against its prejudicial effect. Counsel for Shintar argued that the mention of a firearm was more prejudicial than probative, whereupon the prosecutor reminded the court that `the law requires unfair prejudice.' The court then stated that the evidence could come in with regards to Popov's reasonable fear. Viewed as a whole, this exchange indicates that the court considered both arguments and simply agreed with the State's view that there was no unfair prejudice.

We see no reason to disturb the trial court's ruling.