No. 58301-8-I.The Court of Appeals of Washington, Division One.
July 30, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-09585-3, Brian D. Gain, J., entered May 22, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
Santiago Flores-Duran was convicted of second degree rape, unlawful imprisonment, felony harassment, and second degree assault following an attack on his girlfriend Antonia Mendoza. He seeks a new trial based on admission of prior bad acts evidence under ER 404(b) and prosecutorial misconduct. Finding no error, we affirm.
I.
In November 2004, Santiago Flores-Duran, his girlfriend Antonia Mendoza, and their one-year old son Jessie were living with Flores-Duran’s parents. Early in the morning of November 11, 2004, Mendoza and Jessie were asleep in bed when Flores-Duran returned home from his janitorial job. Flores-Duran confronted Mendoza and asked whether she had been cheating on him, and she denied the allegation. Flores-Duran then tied her hands with tape, threw her on the bed, and choked her with his hands while demanding to know whether she had been unfaithful. Mendoza said that Jessie woke up and watched from the bed as Flores-Duran threw her to the floor, causing her to hit a dresser. He then picked her up and repeatedly punched her in the face. Mendoza said that Flores-Duran threatened to grab a gun he kept wedged between the mattress and the headboard of the bed and that he threatened to put a bullet in the gun and play “Russian roulette” until she admitted infidelity. Mendoza said that Flores-Duran then grabbed a hammer and attempted to strike her. She managed to grab it, and let go when he promised not to use it. Mendoza said that Flores-Duran then turned her over and anally raped her as she screamed for him to stop. Flores-Duran’s parents were in the next room watching television, but did not come to her aid.
Mendoza said that Flores-Duran did not permit her to leave the bedroom for several hours after that. At 9:00 AM she bit the tape off her wrists and told Flores-Duran that she was going to make breakfast for Jessie. Instead, she left the house and walked to a nearby police station. There, she told Officer Steven Clark that Flores-Duran had accused her of cheating, beat her, and threatened her with a hammer and gun. Officer Clark took photographs of Mendoza’s injuries and had a female employee photograph injuries under clothed areas. Mendoza did not report the rape until the following week, during an interview at her home by Kent Police Detective Kathy Holt.
In a subsequent search of the home, Officer Clark found and photographed a trash can containing bloody tissue and discarded packaging tape. However, Flores-Duran was nowhere to be found. On the day of the assault against Mendoza, Flores-Duran called in sick at work, and three days later, he called in to quit his job. A warrant was issued for Flores-Duran’s arrest, and he turned himself in on August 31, 2005.
Flores-Duran was arrested and charged with rape in the second degree, unlawful imprisonment, felony harassment, and assault in the second degree. Because the felony harassment charge required the State to prove that Flores-Duran threatened to kill Mendoza and that she reasonably feared he would carry out the threat, the State sought to introduce evidence of two prior assaults in July and August 2004 pursuant to ER 404(b). The trial court allowed the testimony, ruling that the previous incidents relevant to the reasonableness of Mendoza’s fear and that they were more probative than prejudicial. Flores-Duran conceded that he accused Mendoza of having an affair and that he hit her several times, but denied throwing her down, choking her, threatening her with a hammer and gun, or raping her. He said that Mendoza fabricated these events because she was mad at him for hitting her. He also testified that the incident was quiet and that Jessie did not wake up. And he denied the prior assaults.
A jury convicted Flores-Duran of all charges and the court imposed a standard range sentence. Flores-Duran now appeals.
II.
Flores-Duran argues that evidence of his two prior assaults against Mendoza denied him a fair trial. Under ER 404(b), evidence of other bad acts is admissible if relevant to a material issue and more probative than prejudicial.[1] Before admitting evidence under ER 404(b), the trial court must engage in a three-part analysis. First, the court identifies the purpose for which the evidence is admitted.[2] Second, the court determines whether the evidence is “relevant and necessary to prove an essential ingredient of the crime charged.”[3] Third, if the evidence is logically relevant, the court determines whether its probative value outweighs any potential prejudice.[4] Admission of evidence under ER 404(b) is reviewed for an abuse of discretion.[5]
Flores-Duran concedes that the trial court properly identified the purpose for which the evidence was admitted: to establish the reasonableness of Mendoza’s fear that Flores-Duran was going to kill her during the November attack. This is a critical element of the crime of felony harassment.[6] However, Flores-Duran contends that the State failed to establish that the evidence was relevant, because Mendoza had testified that she “didn’t think about” the prior assaults during the November assault. Therefore, it was inadmissible propensity evidence. Flores-Duran further argues that the evidence was highly prejudicial because much of the case turned on Mendoza’s claims of being raped and threatened with a hammer and gun, which Flores-Duran denied. Thus, according to Flores- Duran, there was a reasonable probability that the evidence materially affected the outcome, and a new trial is required.[7]
We disagree. Mendoza testified that she was scared of Flores-Duran because she “knew that he could do something to hurt me” and “because of his temper problems,” as demonstrated by the prior assaults. Her knowledge of these prior violent acts was relevant to proving reasonable fear.[8] The State was not required to show that she was actively reflecting upon the prior assaults during the November attack. The prior assaults also demonstrate Flores-Duran’s increasingly aggressive behavior, which is relevant to Mendoza’s fear that he could kill her.[9]
Flores-Duran’s contention that the prior assaults played no role in Mendoza’s fear during the November attack is untenable. Given the testimony and other evidence in this case, this evidence was far more probative than prejudicial, and the trial court did not abuse its discretion in admitting it.
Flores-Duran also argues that the prosecutor committed misconduct by reminding jurors of the psychological harm suffered by one-year-old Jessie, who witnessed the attack on his mother. During closing arguments, over a defense objection, the prosecutor said “what [Jessie] witnessed was a darkness visible. . . . No child, no child, much less no human being, should have been forced to witness, and this was all, from start to finish, the defendant’s doing.” Flores-Duran contends that he is entitled to a new trial because there was no legitimate purpose for this reference and because it was made solely to engender sympathy for the child and provoke anger against him.
We disagree. The prosecutor has a duty “to see that an accused receives a fair trial,” which requires a verdict “free of prejudice and based upon reason.”[10] The prosecutor may not attempt to obtain a conviction by deliberately appealing to the jury’s passions and prejudice or by making prejudicial allusions to matters not properly in evidence.[11] However, a prosecutor’s comments during closing argument must be evaluated in “the context of the prosecutor’s entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions.”[12] In this case, Flores-Duran had testified that Jessie remained asleep in the bed where the ordeal took place. He also testified that he was a “good father” whereas Mendoza “was always a bad mother.” The remainder of the prosecutor’s closing argument demonstrates that the challenged statements were made in the context of responding to Flores-Duran’s assertions about Mendoza’s character. These statements referred to matters that were properly in evidence and served a legitimate purpose other than appealing to passion and prejudice.
AFFIRMED.
(1994).