STATE v. DELAURO, 50963-2-I (Wash.App. 9-8-2003)

No. 50963-2-I.The Court of Appeals of Washington, Division One.
Filed: September 8, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 02-1-02723-3. Judgment or order under review. Date filed: 08/19/2002.

Counsel for Appellant(s), Charles Delauro (Appearing Pro Se), Berkey House, Doc# 833524 — Rm# 102, 1213 E. Union Street, Seattle, WA 98122.

Douglas Allen Stratemeyer, Attorney at Law, 1001 4th Ave Ste 3200, Seattle, WA 98154-1003.

Counsel for Respondent(s), Jimmy I Hung, Attorney at Law, W554 Kc Courthouse, 516 3rd Ave, Seattle, WA 98104-2385.

PER CURIAM.

Charles DeLauro appeals his conviction for threats to bomb or injure property. He argues that the trial court abused its discretion in admitting evidence under ER 404(b) of a prior threat he made to police officers. The evidence was probative of DeLauro’s motive in committing the current offense and the probative value outweighed its potential for unfair prejudice. We conclude that the trial court did not abuse its discretion in admitting the evidence. We affirm.

FACTS
On April 3, 2002, Charles DeLauro was incarcerated at the King County Correctional Facility in Kent, Washington. On that date, DeLauro approached Officer Scott Conrad and made comments regarding being suicidal. Officer Conrad followed standard operating procedures and initiated steps to place DeLauro on suicide watch. While Officer Conrad escorted DeLauro to the booking facility, DeLauro stated:

I don’t want to hurt myself. I have 600 pounds of C-4 explosives at my house. I’m going to put them in my truck and drive it to Precinct 4 at 3 P.M. at shift change and take all those mother fuckers with me. . . . The only thing they will find is my body with its head blown off and my hand holding the firing pin.

Officer Conrad transferred custody of DeLauro to Officer Michael Lund. Officer Lund placed DeLauro in a holding cell for suicide watch. While in the holding cell, DeLauro told Officer Lund, `I’m going to blow up the courts with C-4 I have hidden in my house.’ DeLauro was charged with threats to bomb or injure property pursuant to RCW 9.61.160.

Prior to trial, the State sought to admit evidence of prior misconduct by DeLauro. The evidence regarded a traffic stop. On October 18, 2001, Sheriff’s Deputy William Alvarez came into contact with DeLauro during a traffic stop. Deputy Alvarez was backing up Sheriff’s Deputy Chad Mulligan. Each deputy worked at Precinct 4 of the King County Sheriff’s Office.

According to the deputies, DeLauro was upset that he had been pulled over. Deputy Alvarez described DeLauro’s demeanor as very angry. Deputy Alvarez overheard DeLauro state to Deputy Mulligan: `Next time you see me all you’re going to see is this.’ DeLauro then made a motion like pumping a shotgun and then said, `Bang.’ DeLauro was convicted of felony harassment for this incident.

The trial court admitted testimony of the prior traffic stop, but not the resulting conviction. At the conclusion of the trial, a jury found DeLauro guilty as charged. This appeal timely followed.

ANALYSIS I. Prior Bad Acts
DeLauro argues that the evidence of his actions at the prior traffic stop was improperly admitted under ER 404(b). Under ER 404(b), evidence of prior bad acts is presumptively inadmissible to prove character and show action in conformity therewith. Carson v. Fine, 123 Wn.2d 206, 221, 867 P.2d 610 (1994). Such evidence may be admissible, however, for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. ER 404(b). Before admitting evidence under ER 404(b), a trial court must identify the purpose for introducing the evidence, determine its relevance to an element of the crime charged, weigh the probative value against its prejudicial effect, and decide if the evidence preponderates that the misconduct actually occurred. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).

A trial court’s ruling on the admissibility of prior bad acts evidence is reviewed for an abuse of discretion. State v. Dennison, 115 Wn.2d 609, 628, 801 P.2d 193 (1990). A trial court abuses its discretion if it relies on untenable grounds or untenable reasons. State v. Brown, 132 Wn.2d 529, 571-72, 940 P.2d 546 (1997).

The trial court admitted evidence of the prior traffic stop finding that it was probative of DeLauro’s motive in the current offense. The trial court then weighed the probative value of the evidence against the potential for unfair prejudice and found:

I think the jury will be able to, again, I don’t think most jurors are happy to hear that a police officer is — been threatened or — but I don’t think that it’s so unduly prejudicial or unduly confusing and it does have probative value. Namely, why would a person in the course of an experience in the jail make a generalized threat against a whole series of officers.

DeLauro argues that the evidence was not probative of motive. The Washington Supreme Court has defined motive as: “Cause or reason that moves the will. . . . An inducement, or that which leads or tempts the mind to indulge a criminal act.” State v. Tharpe, 96 Wn.2d 591, 597, 637 P.2d 961 (1981) (quoting Black’s Law Dictionary 1164 (4th ed. 1968)). Evidence of previous quarrels and ill feeling is admissible to show motive. State v. Powell, 126 Wn.2d 244, 260, 893 P.2d 615 (1995). `Evidence of prior threats is also admissible to show motive or malice.’ Powell, 126 Wn.2d at 260. The evidence, however, must also be of consequence to the current action. Powell, 126 Wn.2d at 260.

Here, DeLauro made threats regarding the King County Sheriff’s Office Precinct 4. He did not make threats towards the corrections officers to whom he voiced the threats. Without the admission of the prior traffic stop, the State would have no evidence of why DeLauro would make threats towards Precinct 4. The prior traffic stop provided relevant evidence of DeLauro’s motive for making the specific threats.

DeLauro further asserts that even if the traffic stop was probative of motive its potential for unfair prejudice outweighed its probative value.

A trial court’s balancing of prejudicial effect versus probative value is reviewed for an abuse of discretion. State v. Bouchard, 31 Wn. App. 381, 385, 639 P.2d 761 (1982). The court considered the danger of unfair prejudice that could result from the jury’s displeasure with hearing that DeLauro had previously threatened an officer. This danger, however, did not outweigh the probative value of explaining to the jury DeLauro’s reason for making the threats, i.e., hostility toward the Precinct 4 officers who had previously pulled him over. DeLauro has failed to show that the trial court abused its discretion in weighing the probative value versus the unfair prejudice of this evidence. The evidence was properly admitted under ER 404(b).

II. Rule Infraction
DeLauro argues in his statement of additional grounds for review that he did not commit the charged crime. DeLauro was given rule infractions for other comments and gestures that he had made towards corrections officers and other inmates during his time under suicide watch. He was not cited, however, with a rule infraction for making threats against Precinct 4. He argues that this failure to cite him with a rule infraction is evidence that he did not actually make a threat.

The evidence presented by DeLauro is not part of our record on review. RAP 9.1.

Finding no error, we affirm the judgment and sentence.