                                                                    FILED
                                                                 MARCH 17, 2020
                                                           In the Office of the Clerk of Court
                                                          WA State Court of Appeals, Division III



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                          )         No. 36169-1-III
                                              )
                     Respondent,              )
                                              )
        v.                                    )         PUBLISHED OPINION
                                              )
JAMAICA CHRISTINA RILEY,                      )
                                              )
                     Appellant.               )

       PENNELL, C.J. — A fundamental tenet of a fair trial is that parties and witnesses

are to be judged by what they have said or done, not by who they are. For this reason, the

rules of evidence restrain the admissibility of character evidence. Specific instances of a

party’s or witness’s bad conduct ordinarily cannot be introduced as evidence to prove the

party or witness acted in conformity therewith. However, bad conduct evidence can be

admissible for other reasons. And character evidence is sometimes permissible through

reputation testimony or during cross-examination regarding specific instances of

dishonest conduct.

       The narrow ins and outs of the character evidence rules can pose a considerable

challenge for trial judges. This is especially true in emotion-laden cases, such as ones

where the involved parties are sorting through a marital dissolution or a family dispute.

                                             1
No. 36169-1-III
State v. Riley


Here, the trial judge adequately marshaled the admissibility of character evidence in a

criminal telephone harassment case involving divorcing spouses. We therefore affirm the

judgment of conviction.

                                          FACTS

       Jamaica Riley and John Pink separated after 13 to 14 years together. They had two

children. Shortly after the separation, Mr. Pink moved out of the family home and later

contacted the utility company to remove his name from the power bill. A utility worker

was dispatched to the residence, where he encountered Ms. Riley. When the worker stated

the reason for his presence, Ms. Riley became upset. She then made two telephone calls

to Mr. Pink. The content of those calls gave rise to the two counts of telephone

harassment at issue in this case.

       During the first call, Ms. Riley yelled at Mr. Pink and threatened to shoot him in

the head. The utility worker was present within earshot during this call. He did not recall

Ms. Riley’s threat to shoot Mr. Pink, but he did overhear Ms. Riley curse and issue other

threats. Both Mr. Pink and the worker described Ms. Riley as angry and loud. In

describing Ms. Riley’s tone of voice, Mr. Pink stated she “was screaming and very shaky,

and it was extremely scary.” Report of Proceedings (RP) (June 5, 2018) at 31. Mr. Pink

explained he was afraid Ms. Riley would act on her threat because Ms. Riley owned two


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No. 36169-1-III
State v. Riley


guns and Mr. Pink knew Ms. Riley was “a very good shot,” and “usually meant what she

said.” Id. at 31-32.

       Ms. Riley’s second call came after Mr. Pink had contacted the county sheriff. A

deputy was with Mr. Pink at the time of the call and listened in on Ms. Riley’s statements.

During the second call, Ms. Riley stated Mr. Pink would “be lucky to leave in an

ambulance” if he came to pick up their children later that day, as had been previously

arranged. Id. at 37. The sheriff’s deputy recalled Ms. Riley stating something to the effect,

“‘[i]f you try and pick up my kids I guarantee you will leave in an ambulance.’” Id. at 70.

Mr. Pink interpreted Ms. Riley’s statements regarding the ambulance as a legitimate

threat to his safety.

       The State charged Ms. Riley with two counts of telephone harassment, one count

of witness tampering, and one count of violating a protection order. 1 Ms. Riley exercised

her right to a jury trial.

       Prior to trial, the State successfully moved to exclude four of Ms. Riley’s

witnesses. Two witnesses (Alyssa Kaye Turner and Joseph Riley) were to testify Mr. Pink



       1
        The conduct for the latter two counts occurred after the threats, and does not
substantively relate to the issues Ms. Riley raises on appeal. Originally, the State charged
Ms. Riley with two counts of felony telephone harassment. During trial, one of the felony
telephone harassment counts was amended to a misdemeanor.

                                             3
No. 36169-1-III
State v. Riley


had made a false police report against Ms. Riley. According to the defense proffer, the

testimony was relevant for impeachment. The other two witnesses (Rebecca Pink and

Tara Krier) were to testify that they had not observed any marital discord between Ms.

Riley and Mr. Pink. The defense claimed this testimony was relevant to challenge the

notion that “Mr. Pink had a reasonable fear that Ms. Riley would carry out a threat.”

Clerk’s Papers (CP) at 10. 2

       The defense unsuccessfully moved to exclude a State witness named Misty Black.

Ms. Black was to testify she had seen Ms. Riley slap Mr. Pink in the back of the head

on numerous occasions. 3 According to the State, Ms. Black’s testimony was relevant

to prove Mr. Pink reasonably feared Ms. Riley would carry out her telephone threats.



       2
         The entire proffer was as follows: Rebecca Pink would testify “she has seen John
Pink and Jamaica Riley interact on a number of occasions and has never seen them
violent or angry with each other and that such a characterization is not consistent with the
dynamic the couple had.” CP at 10. Tara Krier would testify “she has known John Pink
and Jamaica Riley for more than 15 years and that based on a lack of violence of conflict,
Mr. Pink would not have reasonable fear that Ms. Riley would carry out a threat.” Id.
       3
         The pretrial proffer was Ms. Black would testify she had known John Pink and
Jamaica Riley “‘for approximately the last two years. We would hang out as families and
go camping and do other activities. Throughout that entire time I witnessed Jamaica hit or
slap John numerous times in anger. I saw her smack him in the back of the head
numerous times because she was upset over very minor things like ordering the wrong
type of pizza. I never witnessed John become physical with Jamaica in any way. He
would usually hang his head and act ashamed over these incidents.’” RP (June 5, 2018) at
9.

                                             4
No. 36169-1-III
State v. Riley


The defense argued Ms. Black’s testimony was not relevant because testimony that Ms.

Riley was abusive and had hit her husband in the head was “not relevant to a person being

afraid of being shot.” RP (June 6, 2018) at 91. The court disagreed.

       At trial, the State’s evidence was consistent with the foregoing summary and

judicial rulings. In addition, Mr. Pink testified over objection about additional instances

of threatening conduct by Ms. Riley. Mr. Pink claimed that on at least a dozen occasions

Ms. Riley exhibited fits of rage while driving the family car. During these incidents, Ms.

Riley would accelerate to over 130 miles per hour and then slam the gears of the car in

order to frighten Mr. Pink and the couple’s children. Mr. Pink also testified Ms. Riley

often threw objects at his head such as plates, cell phones, and rocks.

       According to Mr. Pink, Ms. Riley’s angry outbursts were a daily occurrence. Ms.

Riley was very aggressive and would frequently smack or kick Mr. Pink. One time, Mr.

Pink recalled Ms. Riley scratched his left forearm with four fingernails, “from the elbow

all the way to the wrist.” RP (June 5, 2018) at 33-34. On another occasion, Ms. Riley

kicked Mr. Pink in the ribs, knocking him out of the bed.

       Ms. Riley took the stand and testified in her own defense. Ms. Riley discussed the

two phone calls between herself and Mr. Pink. She agreed the calls were heated, but

denied making any threats. Ms. Riley also denied ever hitting Mr. Pink or engaging in


                                              5
No. 36169-1-III
State v. Riley


other violent acts. According to Ms. Riley, her marriage to Mr. Pink was “a fairy tale

relationship.” RP (June 6, 2018) at 126.

       After the close of evidence, the court instructed the jury on telephone harassment,

including the requirement that the State prove Ms. Riley had issued a true threat. 4 The

threat instruction stated as follows:

              Threat means to communicate, directly or indirectly, the intent to
       cause bodily injury in the future to the person threatened or to any other
       person.
              To be a threat, a statement or act must occur in a context or under
       such circumstances where a reasonable person, in the position of the
       speaker, would foresee that the statement or act would be interpreted as a
       serious expression of intention to carry out the threat rather than as
       something said in jest or idle talk.

CP at 30.

       The jury convicted Ms. Riley on two counts of telephone harassment and one

count of violating a protection order. It acquitted her of witness tampering. The court

sentenced Ms. Riley to 10 months’ confinement and $700 in legal financial obligations,

including a $200 criminal filing fee.

       Ms. Riley appeals.




       4
        The misdemeanor telephone harassment count required proof of threat to injure.
The felony count required proof of a threat to kill.

                                             6
No. 36169-1-III
State v. Riley


                                        ANALYSIS

Admission of other act evidence

       ER 404(b) governs the admissibility of other act evidence. The rule prohibits

admission of extraneous “crimes, wrongs, or acts” for the purposes of proving bad

character. But not all other act evidence is prohibited. In particular, other act evidence is

admissible in a criminal case if relevant to proving an essential component of the State’s

case. State v. Foxhaven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). Before admitting

other act evidence under ER 404(b), the trial court is required to conduct the following

four-step inquiry on the record:

       (1) find by a preponderance of the evidence that the misconduct occurred,
       (2) identify the purpose for which the evidence is sought to be introduced,
       (3) determine whether the evidence is relevant to prove an element of the
       crime charged, and (4) weigh the probative value against the prejudicial
       effect.

State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). If, despite the requirement

for an explicit record, the trial court fails to document its ER 404(b) analysis, we may

review its decision de novo. See State v. Jackson, 102 Wn.2d 689, 694, 689 P.2d 76

(1984) (reviewing trial court’s ruling de novo where trial court did not conduct four-part

analysis on the record); State v. Trickler, 106 Wn. App. 727, 733, 25 P.3d 445 (2001)

(same); State v. Barragan, 102 Wn. App. 754, 759, 9 P.3d 942 (2000) (same).


                                              7
No. 36169-1-III
State v. Riley


       The thrust of Ms. Riley’s argument is that the trial court should have restricted the

scope of the State’s other act evidence, aimed at explaining why Mr. Pink reasonably

feared Ms. Riley would carry out her telephone threats. 5 Ms. Riley does not dispute the

State was entitled to elicit evidence on the issue of Mr. Pink’s reasonable fear of harm. 6

Her argument is the State’s other act evidence was too dissimilar to the charged conduct

to give rise to a reasonable fear of harm.

       Ms. Riley’s arguments implicate the third and fourth components of the ER 404(b)

analysis: relevance and undue prejudice. There is no serious dispute that the court had

sufficient evidence the prior acts occurred, based on the testimony from John Pink and


       5
          Ms. Riley also points out the trial court overruled an objection to Mr. Pink’s
testimony regarding the facts leading up to the couple’s separation. Although the trial
court likely should have struck this testimony, Ms. Riley fails to explain why this
testimony deprived her of a fair trial, particularly in light of the uncontested fact that
Ms. Riley and Mr. Pink had a contentious divorce. We therefore need not address
the issue further. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).
        6
          The crime of telephone harassment requires proof of a true threat. State v.
Tellez, 141 Wn. App. 479, 483, 170 P.3d 75 (2007). The jury was therefore required to
find that a reasonable person in Ms. Riley’s position would have foreseen the words
uttered to Mr. Pink would be interpreted as a serious expression of an intent to cause
harm. Unlike the crime of generic harassment, the State is not also required to prove
Ms. Riley’s words placed Mr. Pink “in reasonable fear that the threat would be carried
out.” RCW 9A.46.020(1)(b). The distinction between what would be reasonably
understood by the defendant, as opposed to the victim, is subtle and has not been
addressed either at trial or on appeal. We operate under the parties’ apparent assumption
that proof of whether Mr. Pink had a reasonable fear of harm was relevant to whether
Ms. Riley reasonably would have foreseen him to have a fear of harm.

                                              8
No. 36169-1-III
State v. Riley


Misty Black. And the noncharacter purpose of the State’s evidence (proof of

reasonableness of threatened harm) was made explicit on the record.

       We agree with the State that the third and fourth components of the ER 404(b) test

are met in this case. The breadth of admissible other act evidence depends on what the

State is seeking to prove. For example, when other act evidence is proffered to prove

identity through modus operandi, “‘a high degree of similarity’” is required so “‘as to

mark [the prior act] as the handiwork of the accused.’” State v. Coe, 101 Wn.2d 772, 777,

684 P.2d 668 (1984) (quoting United States v. Goodwin, 492 F.2d 1141, 1154 (5th Cir.

1974)). It is only when a prior act and a charged crime share distinct or unusual

characteristics that the prior act is relevant to proving identity. Id. at 777-78. But other act

evidence proffered to prove reasonableness of threatened harm is different. In order to

explain why the defendant’s words constituted a true threat, which would reasonably be

interpreted as a serious threat of harm, the State must be able to place the defendant’s

statement in “context.” State v. Ragin, 94 Wn. App. 407, 412, 972 P.2d 519 (1999). “The

jury [is] entitled to know what [the victim] knew at the time” the defendant issued the

threat to decide whether it constituted a true threat. Id. The issue of similarity is not part

of the analysis.




                                               9
No. 36169-1-III
State v. Riley


       Here, the crux of the parties’ dispute was whether Ms. Riley’s telephone

statements could reasonably be interpreted as true threats of harm. During closing

argument, the defense likened Ms. Riley’s words to the taunts of a high school football

team: “‘We’re gonna maul the other team, we’re gonna kill ‘em, we’re gonna murder

‘em.’” RP (June 6, 2018) at 208. Ms. Riley characterized Mr. Pink as not really

concerned by Ms. Riley’s statements and that he would simply call the police “pretty

much at the drop of a hat . . . whether he’s concerned or not, whether he’s worried or not.

Whether he’s in fear or not.” Id. at 213. In light of the parties’ competing theories, the

State was entitled to present the jury information regarding what Mr. Pink knew at the

time of Ms. Riley’s calls that gave rise to a reasonable fear of harm. Ms. Riley’s criticism

of the quality of the State’s proof went to the weight of the State’s case and provided

fodder for argument, but it did not bar admission of the evidence.

Exclusion of defense witnesses

       Ms. Riley claims she was deprived of her right to present a defense when the court

excluded two sets of witnesses. The first set of witnesses (Alyssa Kaye Turner and Joseph

Riley) were proferred to impeach Mr. Pink’s credibility through testimony that Mr. Pink

engaged in misconduct by making a false report against Ms. Riley to police. The second

set of witnesses (Rebecca Pink and Tara Krier) would have testified Ms. Riley and Mr.


                                             10
No. 36169-1-III
State v. Riley


Pink did not have a violent relationship, thereby challenging the State’s other act evidence

under ER 404(b). We find no error in the trial court’s orders, as Ms. Riley failed to show

the proffered testimony would be admissible under the rules of evidence.

       Impeachment through specific instances of misconduct

       ER 608(b) addresses the circumstances under which a witness may be impeached

through specific instances of misconduct. The rule provides that, except as allowed by

ER 609 (impeachment by evidence of criminal conviction), extrinsic evidence of prior

instances of misconduct may not be introduced to support or impeach a witness’s

testimony. In this context, “extrinsic evidence” means evidence “adduced by means other

than cross examination of the witness.” BLACK’S LAW DICTIONARY 700 (11th ed. 2019).

       Here, Ms. Riley sought to impeach Mr. Pink’s credibility by introducing witness

testimony that Mr. Pink had engaged in specific instances of dishonest behavior. Under

ER 608(b), Ms. Riley was welcome to cross-examine Mr. Pink regarding his character for

truthfulness by referencing specific instances of misconduct. However, if Mr. Pink denied

the misconduct, Ms. Riley would have been required to take Mr. Pink at his answer.

United States v. Herzberg, 558 F.2d 1219, 1223 (5th Cir. 1977) (Under Federal Rule of

Evidence 608(b), “[t]he cross-examining attorney must take the witness’ answer.”).




                                            11
No. 36169-1-III
State v. Riley


Ms. Riley was not allowed to impeach Mr. Pink through witness testimony. The trial

court’s ruling excluding Ms. Riley’s evidence was therefore appropriate.

       Rebuttal of State’s ER 404(b) evidence

       Ms. Riley argues that because the trial court allowed the State to introduce

evidence under ER 404(b) regarding prior acts of aggression by Ms. Riley against Mr.

Pink, she should have been allowed to present rebuttal testimony from witnesses who

would state they had never seen such conduct. This argument misses the mark. Had

Ms. Riley’s witnesses been present during a specific instance when Mr. Pink had been

assaulted or threatened, their testimony would have been admissible as direct rebuttal.

Alternatively, the testimony might have qualified as rebuttal evidence if the witnesses had

been together with Ms. Riley and Mr. Pink with sufficient regularity that they likely

would have been present during any alleged acts of violence. But Ms. Riley made no such

claims. Instead, she argued her witnesses were generally familiar with the interactions

between Ms. Riley and Mr. Pink and they had never observed any violent conduct. This

was not rebuttal testimony and was not admissible as such.

       The fact that Ms. Riley’s witnesses could not directly rebut the State’s claims

regarding prior acts of aggression did not strip the defense of options. ER 404(a)(1)

provided Ms. Riley an avenue for introducing evidence of a pertinent character trait, such


                                            12
No. 36169-1-III
State v. Riley


peacefulness. Under our state’s evidence rules, Ms. Riley could have attempted to

introduce evidence of her peaceful character through reputation evidence. ER 405(a). 7

But she did not do so. 8 Ms. Riley was not entitled to circumvent the evidentiary

prerequisites of reputation testimony by recasting peaceful character evidence as rebuttal

testimony. The trial court was well within its discretion in excluding Ms. Riley’s

witnesses.

Legal financial obligations

       As a final argument, Ms. Riley seeks relief under Washington’s reformed legal

financial obligation laws, claiming the $200 criminal filing fee imposed against her



       7
         Unlike the federal rules of evidence, Washington’s evidence rules do not permit
character evidence to be proved by opinion testimony. State v. Kelly, 102 Wn.2d 188,
194-95, 685 P.2d 564 (1984); FED. R. EVID. 405. The state rules therefore limit the
manner in which a litigant can present evidence relevant to the jury’s assessment of guilt
or innocence. Such limitation appears unnecessary and perhaps even unwise.
Nevertheless, it is not this court’s role to rewrite the evidence rules. Although an accused
person has a constitutional right to present a defense, the scope of that right does not
include introduction of otherwise inadmissible evidence. State v. Aguirre, 168 Wn.2d
350, 363, 229 P.3d 669 (2010).
       8
         This is not a rare case where character evidence is “an essential element of a
charge, claim, or defense,” and therefore may be proved by specific instances of conduct.
ER 405(b). See Kelly, 102 Wn.2d at 196-97 (“In criminal cases, character is rarely an
essential element of the charge, claim or defense.”). The prior acts of violence between
Ms. Riley and Mr. Pink were relevant to proving a noncharacter element of the offense:
whether Ms. Riley’s words would be reasonably interpreted as a threat. Character or a
character trait was not, itself, an essential element of proof.

                                             13
No. 36169-1-111
State v. Riley


should be struck pursuant to RCW 36.18.020(2)(h) and State v. Ramirez, 191 Wn.2d 732,

426 P.3d 714 (2018). The State concedes relief is appropriate based on Ms. Riley's

indigence under RCW 10.101.010(3)(a). We therefore grant Ms. Riley's request and order

the $200 filing fee struck from the judgment and sentence.

                                    CONCLUSION

      The judgment of conviction is affirmed. This matter is remanded with instructions

to strike the $200 criminal filing fee from Ms. Riley's judgment and sentence. Appellate

costs shall not be imposed.



                                          (2
                                         Pennell, C.J.
                                                         -9 i c.S
I CONCUR:




                                           14
No. 36169-1-III
State v. Riley (Dissent)




                                      No. 36169-1-III

       FEARING, J. (dissenting) — As a general rule, the State may not introduce evidence

of an accused’s earlier bad acts. ER 404(b). In turn, although the accused may introduce

evidence of a good character, the accused generally may not introduce evidence of the

absence of earlier bad acts. In Jamaica Riley’s prosecution, however, the State presented

evidence of earlier abusive and assaultive conduct of Riley in order to prove John Pink’s

fear of Riley. Riley could not, however, rebut such evidence with testimony of the

absence of such behavior.

       The State submitted testimony from Misty Black that she saw Jamaica Riley slap

John Pink numerous times. Black also testified that John Pink did not retaliate in turn.

       John Pink averred that Jamaica Riley daily engaged in angry outbursts. Pink

testified that, in addition to Riley smacking him, Riley, on other occasions, scratched his

arm and kicked him in the ribs. Pink testified that Riley threw plates, cellphones, and

rocks at him. He testified that sometimes, when Riley drove the car with him and the

children as passengers, Riley accelerated to 130 miles per hour and slammed the gears of

the car to frighten him and the children. Despite this extensive evidence of earlier bad

                                             15
No. 36169-1-III
State v. Riley (Dissent)


conduct of Jamaica Riley toward John Pink, the trial court precluded Jamaica Riley from

presenting testimony from Rebecca Pink that she had seen the husband and wife interact

and never observed either of them violent or angry with the other. The court precluded

testimony from Tara Krier that she knew the couple for fifteen years, she never saw a

violent act between the two, and John Pink would not have had a reasonable fear that

Riley would consummate a threat.

       So the State presented extensive and demoralizing evidence painting Jamaica Riley

as a circadian violent person, but Riley could not present third-party witness testimony to

state that the witness never saw Riley become violent toward John Pink. Taint fair.

       Jamaica Riley, during her testimony, denied any of the alleged violent acts

attributed to her by John Pink and other State witnesses. The jury, of course, would have

questioned the credibility of Riley because of her being the accused. Riley deserved the

opportunity to have other witnesses, who observed the interaction between the parties, to

testify to observations since the jury could consider the other witnesses credible.

       Admittedly, Jamaica Riley’s tendered witnesses did not plan to testify to Riley’s

character or reputation for engaging in violent acts or for not engaging in abusive

behavior. They intended to testify to the lack of earlier bad acts, and Riley could have

engaged in many acts of violence out of the sight of the witnesses. But the State


                                             16
No. 36169-1-III
State v. Riley (Dissent)


presented a theory that Jamaica Riley extensively and routinely engaged in violence.

When John Pink testified to daily angry outbursts, Riley should have gained the right to

call to testify someone who spent significant time with the couple, but saw no violent

acts. At least the trial court should have inquired as to the amount of time that the

witnesses spent with the couple before precluding the testimony. The majority analyzes

the appeal as simply one involving the admissibility of prior bad act evidence or the lack

of earlier wrongful conduct. The majority fails to analyze the appeal as one demanding

an opportunity for an accused to rehabilitate her character because of the attacks meted by

the State to that character.

       Tara Krier’s and Misty Black’s testimony would not have been admissible if the

State had not presented testimony of conduct of Jamaica Riley other than the conduct that

formed the criminal charges. But the two witnesses’ testimony became admissible when

the State opened the door and presented testimony of a long and tortured history of

violence. Tara Krier should not have been able to testify as to whether John Pink would

or would not have a reasonable fear, but should have been able to testify as to her

observations, which observations counter the State’s testimony.

       Washington courts allow the State to present rebuttal evidence as to character and

the prior bad acts of the accused when the accused places his or her character in issue.


                                             17
No. 36169-1-III
State v. Riley (Dissent)


State v. Young, 158 Wn. App. 707, 719, 243 P.3d 172 (2010); State v. Brush, 32 Wn.

App. 445, 450, 648 P.2d 897 (1982). The stated rule must apply in favor of the accused

also. Barker v. Commonwealth, 209 Ky. 817, 273 S.W. 503, 504-05 (1925).

         I would reverse the convictions for telephone harassment and remand for a new

trial.




                                             Fearing, J.




                                            18
