No. 60767-7-I.The Court of Appeals of Washington, Division One.
November 10, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-1-02983-1, Richard D. Eadie, J., entered October 23, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION.
PER CURIAM.
Evidence of prior bad acts is admissible to prove a common scheme or plan when the prior conduct is substantially similar to the charged offense, is relevant to prove an element of the charged crime, and is not unfairly prejudicial. Here, the trial court did not abuse its discretion in admitting evidence of a prior robbery conviction. We affirm.
BACKGROUND
In January 2007, 16 year old Lise Munson, along with Desmond McAdory, confronted Hillary Van Horn and Renee Gibbs as they walked to their car around midnight in West Seattle. Munson called out to the women, told Van Horn she had a problem with her, and insulted Gibbs. As Van Horn and Gibbs turned to leave, Munson struck Van Horn on the side of the face with her hand, knocking her to the ground. McAdory struggled with Van Horn over her purse. When Gibbs cried out, Munson struck her in the face too. Van Horn released her purse, McAdory took it, and Munson and McAdory ran off together. A cell phone taken from the purse was later used to call Munson’s brother.
McAdory pleaded guilty to robbery in the first degree. The State charged Munson with assault in the second degree and first degree robbery.[1] Munson entered a guilty plea on the assault. She denied she had any intent to commit robbery.
Before trial, the State moved to admit details of Munson’s 2005 robbery under ER 404(b) to establish that she intended to commit the robbery, not just assault. In the 2005 robbery, Munson and a female friend approached fellow 14 year olds Shaelene Willers and Amanda Hoffman at the Burien park and ride. After a brief friendly conversation, Munson accused Willers of “messing with [Munson’s] man.” Report of Proceedings (Sept. 12, 2007) at 402. Willers denied this, and when their bus arrived, Hoffman and Willers attempted to board it. Someone yanked Willers off the bus by her hair and she fell to the ground, where Munson began punching and kicking her. When Hoffman got off the bus and tried to help Willers, she was hit and kicked in the back and Munson punched her on the side of the head. During the attack, Willers dropped her purse and Munson or her companion took it. Munson was charged in juvenile court and entered an Alford plea[2] of guilty to robbery in the second degree.
The court granted the motion. At trial, the victims of the prior robbery and the detective who investigated it gave detailed testimony about the incident.
The jury convicted Munson of first degree robbery. She appeals.
DISCUSSION
Munson contends the trial court erred in admitting evidence of the 2005 robbery. We review a court’s decision to admit evidence for abuse of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).
“A trial court must always begin with the presumption that evidence of prior bad acts is inadmissible. ER 404(b) prohibits admission of evidence to prove a defendant has a criminal propensity.”[3] Id. Before admitting evidence of prior bad acts under that rule, a trial court must (1) find, by a preponderance of the evidence, that the prior act occurred; (2) identify the purpose for which the evidence is offered; (3) determine the evidence is relevant to prove an element of the crime charged; and (4) find that the probative value outweighs its prejudicial effect. State v. Lough, 125 Wn.2d 847, 852, 889 P.2d 487 (1995). “In doubtful cases, the evidence should be excluded.” State v. Baker, 89 Wn. App. 726, 732, 950 P.2d 486 (1997).
The court found that the evidence was offered to show the robbery was part of a common scheme or plan, was relevant to the issue of Munson’s intent, and that its probative value outweighed its potential for prejudice.
Common scheme or plan evidence is admissible only “when an individual devises a plan and uses it repeatedly to perpetrate separate but very similar crimes.” Lough, 125 Wn.2d at 855. It is not enough to show a series of similar spontaneous acts; the common features of the prior conduct and the charged offense must show the defendant committed “`markedly similar acts of misconduct against similar victims under similar circumstances.'” Id. at 856 (quoting People v. Ewoldt, 7 Cal. 4th 380, 399, 867 P.2d 757, 27 Cal. Rptr. 2d 646 (1994).
Munson objects that the robberies were not close in proximity of time or geography. See State v. Thang, 145 Wn.2d 630, 643, 41 P.3d 1159
(2002). She points out that the incidents were separated by nearly two years, that one occurred in broad daylight and the other near midnight, and that one occurred in West Seattle and the other in Burien. She also emphasizes that the victims of the first attack were fellow young teens and in the other were women in their twenties; that in the first case, her companion was female and in the second case, male; and that in the first case, it took no special effort to take the purse, which had fallen during the assault, while in the other, McAdory seized the purse only after a struggle. She contends the only conceivable relevance of the 2005 robbery was to show that because Munson intended to commit robbery in 2005, she must have possessed the same intent in 2007.
But Munson understates the similarities between the 2005 and 2007 robberies: in both, Munson acted with a companion; the victims were two women, strangers to Munson, and the smaller one was about five feet tall and carried a purse; the incidents were unprovoked and were initiated by Munson by an aggressive verbal exchange; Munson then attacked the smaller victim; when the other victim challenged the assault, she too was attacked by Munson; Munson had a covering on the hand with which she assaulted the victims (glove and bandanna); the purse was discarded nearby with its contents missing; and Munson had possession of the contents of the purse.
These are all factors to be weighed by the trial court in applying ER 404(b). The court understood its task and engaged in the correct balancing. The evidence shows markedly similar acts of misconduct against similar victims under similar circumstances. We see no abuse of the court’s discretion in admitting it.
Affirmed.