No. 25313-5-II.The Court of Appeals of Washington, Division Two.
Filed: June 22, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Mason County, No. 99-1-00011-1, Hon. James B. Sawyer II, October 28, 1999, Judgment or order under review.
Counsel for Appellant(s), Thomas E. Doyle, Attorney At Law, P.O. Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), Carol L. Case, Mason Co. Deputy Pros. Atty., P.O. Box 639, Shelton, WA 98584.
MORGAN, J.
Leonard Luigi Norling appeals his conviction for second-degree robbery. We affirm. During the early morning hours of January 13, 1999, Norling, Amber Beasley, and Josiah Martin were guests at a party in Shelton. Martin was wearing a blue `Tommy Hilfiger’ coat that several other guests, including Norling, said they liked. According to one witness, Norling and Beasley wanted Martin to give Beasley the coat. Later, Norling and Martin walked to a nearby grocery store. On the way back, Norling struck Martin from behind, causing him to fall. As Martin got up, Norling pulled a knife and took Martin’s coat. Martin returned to the grocery store and called 911. He told the 911 operator, `{S}ome big guy named Leonard just socked me in the face and took my jacket.’[1]
Martin also said that his attacker had used a knife and threatened to stab him.
When Norling returned to the party, he was `flushed and worked up.’[2]
He told Beasley, `{W}e got to go, we got to go.’[3] They went to Beasley’s house, where Norling produced the blue coat Martin had been wearing. Later the same day, Officer Jerald Lingle invited Norling to the police station for an interview. Norling denied the robbery. He also denied knowing Martin, walking with Martin to the grocery store, and owning a knife. Lingle also questioned Beasley. Initially, she denied knowing anything about Martin’s coat. The next day, she had her roommate take Martin’s coat to the police, and she gave a statement to the police. On January 22, the State charged Norling with first-degree robbery. After a number of proceedings not pertinent here, the court set trial for October 4.
In March, the State learned that Norling, acting through another inmate and a second person not in jail, was attempting to threaten Beasley and Martin. The inmate informed the police, Lingle investigated, and the State charged Norling with attempting to intimidate a witness.[4] In June, Norling was convicted of attempting to intimidate Beasley and Martin. On October 4, the first morning of Norling’s robbery trial, the State moved in limine to admit Norling’s convictions for intimidation as `evidence of {his} guilt’ under ER 404(b).[5] Norling’s counsel objected on grounds of unfair prejudice, but the trial court overruled. The court reasoned:
{H}is attempts to intimidate witnesses . . . {are} an acknowledgment of guilt, much the same as flight would be an acknowledgement of guilt and would be allowed. . . . I do believe that the probative value outweighs the prejudicial value. I recognize that there is certainly prejudice in {the} admission of that type of testimony, but that’s true when we’re talking about flight from authority also. And insofar as the nature of the evidence being offered in this particular case, it certainly should be allowed to be admitted.[6]
During trial, the State called Beasley, Martin, and Lingle. It also played a recording of Martin’s 911 call. Before the State rested, the court read the jury the following stipulation:
The parties stipulate that the defendant . . . was convicted on June 8, 1999, of two counts of attempted intimidation of a witness, said crimes occurring on or about the 3rd or 4th day of February, 1999, one count involving witness, Amber Beasley, a second count involving witness Joe Martin.[7]
Norling did not testify.
When the trial court instructed the jury at the close of all the evidence, it gave a limiting instruction on the effect of Norling’s intimidation convictions. That instruction stated:
Evidence has been introduced in this case that the defendant has previously been convicted of the crimes of attempted intimidation of a witness. The attempted intimidating of a witness convictions have been admitted for the limited purpose of presenting evidence relating to the defendant’s state of mind. You must not consider this evidence for any other purpose.[8]
The court also gave a lesser-included instruction on second-degree robbery.
The jury found Norling guilty of second-degree robbery, and the court imposed a persistent-offender sentence. Norling then filed this appeal.
I.
Norling contends that the trial court erred by admitting evidence of his intimidation convictions. He argues in effect that such evidence was inadmissible as a matter of law.
Evidence is not admissible because it tends to show that a person has a propensity to commit crimes (i.e., `to prove the character of a person in order to show action in conformity therewith’).[9] Evidence is admissible because it tends to prove some other fact, provided that tendency to prove that fact is not substantially outweighed by its tendency to prove propensity.[10] When evidence has a tendency to prove propensity and also some other fact, the trial court must balance its two uses on the record, and exclude it if its tendency to show the other fact is substantially outweighed by its tendency to show propensity.[11] The trial court has broad discretion when striking this balance,[12] and we will disturb its ruling only for abuse of discretion.[13] Evidence that a defendant has attempted to intimidate witnesses tends to show that the defendant has a propensity to commit crimes.[14] The same evidence also has a tendency to show consciousness of his guilt.[15] Here then, the trial court was required to balance, on the record, (a) the probative value resulting from use of the evidence to show consciousness of guilt against (b) the unfair prejudice resulting from use of the evidence to show propensity. The court did that appropriately, and it did not abuse its discretion.
II.
Norling argues that his counsel was ineffective because he did not object to the instruction that limited the jury’s use of the intimidation evidence to Norling’s state of mind. To demonstrate ineffective assistance of counsel, a defendant must show deficient performance and resulting prejudice.[16] Norling has not shown either element here, for the instruction he now complains about was not erroneous.[17]
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: HUNT, A.C.J., QUINN-BRINTNALL, J.
(1994).
(defendant’s threat to a witness was relevant because it `reveals a consciousness of guilt and ties the defendant to the victim’), review denied, 115 Wn.2d 1013 (1990). Parenthetically, Norling argues that the offered evidence was irrelevant to show consciousness of guilt because it did not show the exact threats or statements that he made. The evidence did show, however, that he had attempted to intimidate Beasley and Martin. That was enough to make it relevant on consciousness of guilt, see ER 401, and thus we reject this argument.