No. 62772-4-I.The Court of Appeals of Washington, Division One.
March 1, 2010.
Appeal from a judgment of the Superior Court for King County, No. 08-1-03275-9, Jeffrey M. Ramsdell, J., entered January 15, 2009.
Affirmed by unpublished opinion per Grosse, J., concurred in by Cox and Appelwick, JJ.
GROSSE, J.
Prior misconduct evidence is admissible when it establishes elements of the charged offense and there is no basis for an instruction on a lesser degree offense when there is no affirmative evidence that the defendant committed only that offense. We therefore affirm the jury conviction of Abdu Mohammed Berhan-Abdu (Berhan) on a charge of first degree robbery.
FACTS
Samuel Steiner worked as a K-Mart loss prevention officer. Steiner did not wear a uniform but had authority to apprehend shoplifters under certain conditions. Steiner saw Berhan in the K-Mart store on several occasions. Berhan never purchased anything and Steiner believed from his observations that Berhan was stealing watches. On the evening of March 16, 2008, Steiner saw Berhan pushing a shopping cart loaded with pillows and towels down one of the store aisles. Berhan concealed watches under the towels, cut open the watch cases with a pair of pliers, and put the watches in his pocket.
Steiner followed Berhan as he left the store. According to Steiner, when Berhan saw him, Berhan screamed and said, “[H]ere, you can have it, you can have it.” Berhan threw down his trench coat and fled. Steiner ran after him, hoping Berhan would drop the watches. As Steiner drew even with Berhan, Berhan said he had a gun and lifted his shirt to display what appeared to be the butt of a gun. Steiner immediately stopped chasing Berhan. Berhan turned and said, “Yeah, don’t fuck with me. Don’t fuck with me.” Berhan left the area and Steiner called the police. Three Seattle police officers responded to the call.
A short time later, one of the officers spotted Berhan some distance from the store and recognized him from Steiner’s description. Berhan avoided the officer but the officer eventually saw him leaving a woman’s bathroom in a restaurant and detained him. A second officer arrived to assist and the first officer recovered five watches from receptacles in the bathroom. A third officer contacted Steiner, who explained his prior encounters with Berhan. The officer drove Steiner to the location where Berhan was arrested and Steiner identified Berhan as the robber. In the K-Mart store, one of the officers observed a shopping cart with pillows. He also found a misplaced towel covering broken watch cases. The officers recovered five watch cases from the store. They also recovered Berhan’s coat, in which they found a pair of needle nose pliers. The officers did not recover any weapon but one of them testified that there were a number of places between the K-Mart store and the location where Berhan was arrested where a weapon could be discarded and would not likely be found. The weather that evening was wet and rainy and it was dark when the officers arrived.
The State charged Berhan with first degree robbery. Prior to trial, the court addressed the question of whether Steiner would be permitted to testify regarding his prior experience with Berhan and ruled that he would.
After the State presented its case, Berhan testified, largely confirming the testimony by the State’s witnesses. Berhan admitted going to K-Mart on several occasions to steal watches and admitted stealing watches on the evening he was apprehended. However, he also testified that he did not know who Steiner was and did not know why Steiner approached him as he left the store. Berhan said he thought Steiner was trying to attack him. Berhan denied having a weapon, denied telling Steiner he had a weapon, and denied showing Steiner anything that looked like a weapon.
Defense counsel initially argued for a lesser degree instruction on second degree robbery. The court rejected the proposed instruction. It reasoned that because Berhan testified he did not know who Steiner was or that he was associated with K-Mart, the facts did not support such an instruction. Counsel did not except to the court’s refusal of the instruction. The court did instruct the jury on third degree theft as a lesser included offense. The jury returned a guilty verdict on the first degree robbery charge and the court imposed a sentence at the low end of the standard range. Berhan appeals.
ANALYSIS
Berhan first contends that the court erred in admitting Steiner’s testimony regarding his prior contacts with Berhan. He also contends the trial court abused its discretion in denying counsel’s request for voir dire of Steiner.
Prior to trial, the State raised this issue, arguing that Steiner’s prior contacts went to the issues of identity, showed a common scheme or plan, showed motive, and established a modus operandi. The prosecutor indicated that Steiner saw Berhan in K-Mart repeatedly in the five or six months before this incident. Each time, Berhan would have a shopping cart containing pillows or towels, would grab watches and put them in the pillows, would break the watch cases and leave them behind, and would leave the store with the watches. The prosecutor noted that the defense was a general denial and acknowledged that this evidence might not be relevant if Berhan stipulated that he committed a theft, but argued that because the State had to prove every element of the offense, the evidence was relevant. The prosecutor also argued that the evidence was relevant to bolster Steiner’s identification after the police apprehended Berhan.
Defense counsel noted that there were no prior police reports of these incidents and suggested that there be voir dire of Steiner. The court inquired if the request for voir dire was as opposed to an offer of proof. Defense counsel replied, “If the State can give me an offer of proof, I may accept that as an alternative to testimony by Mr. Steiner.”
The court posed further questions to the prosecutor regarding the facts of the case and Steiner’s expected testimony and asked defense counsel to respond. Defense counsel argued that the evidence should be excluded as more prejudicial than probative. Counsel did not renew the request for voir dire. The court granted the State’s motion, finding that the evidence was relevant to identity, to show why Steiner took the otherwise inappropriate action of approaching Berhan, and because it showed Berhan’s motive in fleeing. The court found by a preponderance of the evidence that the prior incidents occurred.
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.
Before admitting evidence under ER 404(b), the trial court must:
(1) find by a preponderance of the evidence that the uncharged acts probably occurred before admitting the evidence, (2) identify the purpose for which the evidence will be admitted, (3) find the evidence materially relevant to that purpose, and (4) balance the probative value of the evidence against any unfair prejudicial effect the evidence may have upon the fact-finder.
State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974
(2002). The trial court must conduct its balancing on the record and its determination is reviewed for an abuse of discretion. State v. Lillard, 122 Wn. App. 422, 431, 93 P.3d 969 (2004). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997). The trial court has discretion to decide whether or not an evidentiary hearing is appropriate Kilgore, 147 Wn.2d at 295.
In this case, the trial court addressed the appropriate factors. Because the defense was a general denial, the State was required to prove all the elements of the offense. Berhan suggests he was no longer claiming a general denial by the time of the pretrial hearing. But the State could not be expected to infer from a brief reference in Berhan’s trial brief to a request for a lesser included instruction that Berhan had abandoned his general denial defense. The prior incidents were relevant to the issue of identity, and showed why Steiner approached Berhan and why Berhan fled. The trial court therefore had a tenable basis for admitting the evidence. Moreover, the trial court had a tenable basis for ruling without further proceedings when defense counsel indicated an offer of proof might be sufficient and did not renew the request for voir dire after the court conducted further questioning. Finally, there is no prejudice to Berhan in admitting this testimony. Berhan admitted the prior thefts and counsel used them to support the defense argument that Berhan would not use a gun on this occasion when he had not previously done so.
Berhan next contends the trial court erred in failing to give the jury an instruction on second degree robbery. Alternatively, because counsel did not object to the court’s decision not to give such an instruction, Berhan argues that counsel was ineffective.[1]
To warrant an instruction on an offense of inferior degree, there must be affirmative evidence that the defendant committed only the inferior offense. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000). It is not enough that the jury might disbelieve the evidence pointing to guilt Fernandez-Medina, 141 Wn.2d 456.
Steiner testified that Berhan used the threat of a weapon to get away. If the jury believed Steiner, Berhan committed first degree robbery. But Berhan testified that he did not have a weapon, did not threaten Steiner, that Steiner attacked him, and that he did not know Steiner was a K-Mart employee. If the jury believed Berhan, he committed only theft, on which the jury was instructed. There was no affirmative evidence that Berhan committed only second degree robbery and therefore no error in refusing such an instruction.
In his statement of additional grounds for review, which appears to have been completed with the help of a non-lawyer inmate, Berhan alleges:
Jury instructions No lessor charge. Ineffective counsel Prosecutor misconduct. Innsufficient evidence with the gun. Jury selection. “Kevin Cole Defence” with compairin me to OJ Simpson. No gun found. My speedy trial rights. Police misconduct. *No interpratation* I need counsel that speaks my language. I want a review of this entire trial. I was found guilty because of my lack of understanding. That should be a mistrial!
The only apparent issue regarding the jury instructions and the lesser degree offense instruction has been addressed. There is no record support for the contentions that defense counsel was ineffective, that the prosecutor committed misconduct, that jury selection was flawed, that there were improper references, that there is any speedy trial problem, or that the police committed misconduct. There was testimony that Berhan had what appeared to be a gun, which is sufficient to sustain the jury’s finding on the issue. Berhan is Eritrean and was assisted at trial by an interpreter who spoke the Tigrigna language, even though he demonstrated some ability at trial to understand and answer questions in English. There is nothing in the trial transcript indicating any objection to this arrangement or suggesting that it was inadequate to address Berhan’s translation needs. There is thus no merit to any of the contentions made in the statement of additional grounds.
Affirmed.
WE CONCUR: