No. 58971-7-I.The Court of Appeals of Washington, Division One.
January 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-03121-7, George T Mattson, J., entered October 5, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
A jury convicted Mohammad Sakhi of two counts of arson in the first degree, one count of felony harassment, and one count of residential burglary. Sakhi argues the trial court erred when it admitted evidence that he previously set fire to his own car in order to intimidate Barbara Jones. Sakhi argues under Evidence Rule (ER) 404(b), the potential prejudice of the evidence outweighed any probative value. We hold the evidence was properly admitted to establish an element of the crime of felony harassment: to show Jones reasonably feared Sakhi’s threats. We affirm.
Facts
Beginning in 2002, Sakhi and Jones were involved in a romantic relationship. According to Jones, the relationship was volatile, including daily arguments, threats, and occasional violence. Jones lived at Monro Manor, a publicly-assisted residence for elderly and disabled in Burien, Washington. Sakhi stayed with Jones occasionally.
In March 2006, Sakhi called and informed Jones that he had set the inside of his Honda on fire. He was angry when he called, and gave her directions on where she could find it and see the damage. Accompanied by her granddaughter, Jones found the car two blocks from her apartment complex. The interior of the car was severely burned and unsalvageable. After seeing the inside of the car, Jones talked with Sakhi. He explained that he burned the car because she would not ride in it. Fearful of Sakhi, Jones stayed with one of her grandchildren for a few days. Jones subsequently sought a protection order against Sakhi, listing the car burning episode as an example of violence or a prior threat.
On March 29, 2006, uninvited, Sakhi entered the apartment building where Jones resides. Jones called 911 and told the operator that she was afraid of Sakhi. Jones can be heard telling family members not to open the door to him. Jones told the 911 operator she was afraid if her granddaughter left the apartment that “[Sakhi] might push her down.” The police were dispatched and responded to the scene. The police determined no crime had occurred and drove Sakhi to his mother’s home.
Sakhi called Jones that same night and left her a voice mail message. The message said he was going to throw gasoline on Jones and set her on fire. He also threatened to blow up the apartment building. Everett Jones, another resident of Munro Manor, heard the threats. Everett spoke to Sakhi, who said he was going to burn Barbara Jones by setting her “ass on fire.” She was afraid Sakhi would return to the building to carry out the threats. Neighbors stayed with Barbara Jones until the police arrived. Out of fear of Sakhi, Jones did not stay at her apartment for a few days. She explained she left for a “few days” because she was afraid “Mohammad [Sakhi] was gonna come back,” and “just like he said: burn me up.”
On April 2, 2006, Sakhi came to Jones’ apartment door asking to be let inside. Jones refused. Jones peered from her door, and observed him sitting on a couch in the hallway on her floor. She spoke with him, saying that he was going to jail for coming to her apartment. After a brief exchange, Sakhi set the couch on fire with a lighter. Jones called 911 reporting the fire and providing a description of Sakhi’s clothing. In addition to the couch fire on the same floor as Jones’ apartment, there was another fire set on a lower floor.
Sakhi was subsequently arrested and charged with two counts of felony harassment, one count of domestic violence, two counts of arson, one count of residential burglary, and three counts of making a threat to bomb and injure property.
In a pretrial hearing, the trial court admitted 404(b) evidence that Sakhi set fire to his car. After a jury trial, Sakhi was found guilty of two counts of arson in the first degree, one count of felony harassment, and one count of residential burglary. Sakhi appeals his conviction.
Discussion
Sakhi argues the trial court erred in admitting evidence of his prior arson under ER 404(b) because it was not relevant and was highly prejudicial. We disagree.
Evidence Rule 404(b) provides that, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show [that he acted] in conformity therewith.” However, evidence of such crimes or acts is admissible for other reasons, including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). To admit evidence of other crimes or bad acts, the court must first determine the evidence is relevant, define the applicable exception to 404(b), and balance the probative value against the prejudice of the evidence. State v. Smith, 106 Wn.2d 772, 775-76, 725 P.2d 951 (1986); State v. Barker, 75 Wn. App. 236, 242, 881 P.2d 1051 (1994). When the prior act could be an offense if charged, the court must be satisfied by a preponderance of the evidence that the act actually occurred.State v. Benn, 120 Wn.2d 631, 653, 845 P.2d 289
(1993). The decision to admit evidence of the defendant’s prior acts will not be reversed absent an abuse of the court’s discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
A person is guilty of felony harassment if he knowingly threatens to “cause bodily injury immediately or in the future to the person threatened or to any other person.” RCW 9A.46.020(1)(a). Additionally, “[t]he person by words or conduct places the person threatened in reasonable fear that the threat will be carried out. `Words or conduct’ includes, in addition to any other form of communication or conduct, the sending of an electronic communication.” RCW 9A.46.020(1)(b). Whether the threat was reasonable is an essential element of the crime of felony harassment. State v. Ragin, 94 Wn. App. 407, 411-412, 972 P.2d 519 (1999); State v. C.G., 150 Wn.2d 604, 609-610, 80 P.3d 594 (2003).
In addition to the exceptions listed in ER 404(b), when a defendant is charged with felony harassment, Washington courts allow evidence of a prior bad act or threat to show that the victim’s fear was reasonable. State v. Binkin, 79 Wn. App. 284, 286, 902 P.2d 673 (1995) overruled on other grounds by State v. Kilgore, 147 Wn.2d 288, 53 P.3d 974 (2002). In Binkin, the State charged the defendant with felony harassment for threatening to kill his estranged wife. 79 Wn. App. at 286. The trial court admitted testimony of the defendant’s prior threat to kill the victim’s unborn child to show that her fear was reasonable. Id. In affirming the trial court’s decision to admit the evidence, the court reasoned, “[t]he evidence of the prior threat was probative of and necessary to prove the victim’s state of mind in order to establish that her fear that he would carry out the threat was reasonable.” Id. at 292.
Here, the evidence of Sakhi’s prior act of burning his own car supported establishment of an essential element of the crime of felony harassment-reasonable fear. In the pretrial evidentiary hearing, Jones testified that she did not stay in her apartment for a “few days” after the car burning incident because she was afraid “Mohammad [Sakhi] was gonna come back,” and “just like he said: burn me up.” Jones testified that Sakhi explained his burning of his car as a response to her decision not to ride in it with him. She understood the act to be directed at her. She listed the car burning episode as the reason she sought a protection order against Sakhi. He claims that unlike the victim in Binkin, Jones’ inconsistent testimony establishes that she was not afraid of him based on the car burning. Indeed, as the trial court recognized, Jones’ testimony was inconsistent. At times, Jones completely contradicted herself stating that she “never really was afraid of Mohammad [Sakhi].” Resolving any inconsistencies in Jones’ testimony was either a factual or a credibility determination for the jury. The evidence was relevant to the harassment count, because it established Jones reasonably feared Sakhi would carry out the March 29, 2005, threat.
Sakhi argues that the evidence of his prior car burning was prejudicial and its admission denied him a fair trial because he was simultaneously charged with two counts of arson.[1]
Substantial prejudicial effect is inherent in ER 404(b) evidence. State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Therefore, prior bad acts are admissible only if their probative value outweighs the prejudice. Id. In making its pretrial ruling, the trial court recognized and considered the potential prejudice of admitting the car burning act:
On the one hand, you’re saying, “Folks, don’t consider this prior burning as a sign that he may actually have committed the arson later on; you should take it only for the purposes of determining whether she had a reasonable fear. Now, why, as a matter of logic, would you have reasonable fear? Well, because, folks, because when you did it before, you’ll do it again. Which is exactly the thing we’re telling you not to do in the arson case, but we want you to do in the Threat and Harassment case.”
Despite these concerns, the trial court concluded the evidence was more probative than prejudicial because it established the context of the relationship and an essential element of the crime of felony harassment.
The ruling was discretionary. The decision to admit the evidence was a close call, particularly with respect to the arson count for the fire on the second floor, but the record does not support Sakhi’s claim that it was an abuse of discretion.
Sakhi filed a pro se statement of additional grounds for review raising several additional issues. We conclude that none of them requires reversal.
Sakhi first claims he was denied effective assistance of counsel because his attorney was unable to contact a potential witness. To succeed on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient such that it resulted in prejudice that, with reasonable probability, affected the outcome of the trial. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). The record does not support Sakhi’s contention that his counsel’s performance was deficient. His attorney repeatedly attempted to contact the witness. Moreover, there is no evidence Sakhi was prejudiced, such that the outcome of trial would be different.
Sakhi also appeals the restitution award, claiming it was based on falsified evidence, because the State argued at trial there was damage to the couch, but did not seek restitution for the damage. Instead, the State sought restitution for a carpet burned in the arson. The restitution sought by the State was less than Sakhi’s counsel expected. Sakhi however, implies this is proof that the couch was never damaged.
Restitution awards “shall be based on easily ascertainable damages for injury to or loss of property,” and “[t]he amount of restitution shall not exceed double the amount of the offender’s gain or the victim’s loss from the commission of the crime.” RCW 9.94A.753. “[T]he plain language of the restitution statute allows the trial judge to order restitution ranging from zero in extraordinary circumstances, up to double the offender’s gain or the victim’s loss.” State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). Here, the court had discretion whether to order restitution for the carpet, based on the State’s recommendation. Contrary to Sakhi’s claims, the State’s failure to request restitution for damage to the couch neither negates the proof of the crime nor means the evidence was falsified.
We affirm.