                                                                                          FILED
                                                                                     COURT OF APPEALS
                                                                                            DIVISION 11

                                                                                    1015 FEB 18 AM 9: 17




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II

    STATE OF WASHINGTON,                                                 No. 45173 -5 -II


                                   Respondent,


              v.



    BARON DELL ASHLEY JR.,                                       PART PUBLISHED OPINION


                                   Appellant.


             JOHANSON, C. J. —   Baron Dell Ashley Jr. appeals his jury trial conviction for unlawful

imprisonment (domestic       violence),   his sentence, and the imposition of legal financial obligations


    LFOs).     He argues that the trial court erred when it included a prior attempted second degree


assault juvenile adjudication as one point in his offender score because it did not qualify as a

violent offense under     RCW 9. 94A. 030( 54). In the published portion of this opinion, we hold that


the trial court did not err in counting the prior attempted second degree assault juvenile

adjudication as one point and adopt the reasoning set forth in Division One of this court' s opinion

State   v.   Becker, 59 Wn. App. 848, 801 P. 2d 1015 ( 1990).   Ashley further argues that the trial court




1
    RCW 9A.40. 040( 1);    RCW 10. 99. 020( 5).
No. 45173 -5 -II



erred   in ( 1)    admitting evidence of prior acts of domestic violence under ER 404(b) and ( 2)

imposing     LFOs.       In the unpublished portion of this opinion, we hold that the trial court did not


abuse its discretion in admitting the prior bad acts evidence and that the LFO issue is not ripe for

review. Accordingly, we affirm Ashley' s conviction, his sentence, and his LFOs.

                                                            FACTS


         A jury found Ashley guilty of unlawful imprisonment (domestic violence).2 The trial court

calculated Ashley' s sentence with a seven -point offender score, which included one point for

Ashley' s    1999      attempted        second    degree    assault   juvenile    adjudication.      Ashley appeals his

sentence.



                                                          ANALYSIS


         Ashley argues that the trial court erred in scoring his 1999 attempted second degree assault

juvenile    adjudication as one point            in his   offender score.       He contends that because this was an


attempt offense,        it did   not   qualify   as a violent offense under       RCW 9. 94A. 030( 54), and it should


have counted only as one -half a point. We disagree.

          RCW 9. 94A.525               establishes   how to    calculate    a    defendant'   s   offender   score.   RCW


9. 94A. 525( 7)     provides, "    If the present conviction is for a nonviolent offense and not covered by

subsection (      11), ( 12),   or ( 13) of this section, count one point for each adult prior felony conviction

and one pointfor eachjuvenile prior violentfelony conviction and 1/ 2 point for each juvenile prior

nonviolent        felony   conviction." (        Emphasis     added.)     RCW 9. 94A.030( 54) defines            a " violent



offense"    as    including,     among     other offenses, "[    a] ny felony defined under any law as a class A


2 We describe the background facts and procedure in more detail in the unpublished portion of this
opinion.




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felony    or    an   attempt      to   commit     a   class    A       felony"    and    second   degree      assault.      RCW


9. 94A. 030( 54)(    a)( i),   (viii). It does not include attempted second degree assault in this definition.


Ashley argues that because attempted second degree assault does not fall under RCW

9. 94A.030( 54)' s violent offense definition, the trial court erred when it assigned one point to his

offender score for that offense rather than one -half a point.


          But RCW 9. 94A. 525( 4)             requires   the sentencing          court   to "[ s] core prior convictions for



felony anticipatory offenses ( attempts, criminal solicitations, and criminal conspiracies) the same

as   if they   were convictions        for   completed offenses."          Thus,   under    RCW 9. 94A. 525( 4),         Ashley' s

prior attempted second degree assault would be treated as a completed second degree assault for

purposes of      calculating his       offender score.        Because second degree assault is a violent offense


under    RCW 9. 94A. 030( 54)( a)( viii), RCW            9. 94A.525( 4) provides that the resulting offender score

for that offense would be one point. As a result, it could be argued that RCW 9. 94A.030( 54) and


RCW 9. 94A. 525( 4) conflict.


          Division One of this court addressed a substantially similar issue in Becker, 59 Wn. App.

848.    In Becker, the sentencing court counted a prior attempted second degree robbery conviction

as two points under former subsection ( 9) of the former offender score statute, RCW 9. 94A.360


 1990),    which     is   now codified as       RCW 9. 94A.525( 8).              59 Wn.    App.   at   851.   Similar to RCW


9. 94A. 525( 7), the       provision     at   issue here, former RCW 9. 94A.360( 9) provided for a higher


offender score for prior violent felony convictions:

          If the present conviction is for a violent offense and not covered in subsection ( 10),
           11), ( 12), or ( 13) of this section, count two pointsfor each prior adult andjuvenile
          violent felony conviction, one point for each prior adult nonviolent felony
          conviction, and 1/ 2 point for each prior juvenile nonviolent felony conviction.

 Emphasis added.)


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           On appeal, Becker argued that his prior attempted robbery conviction did not count as two

points in his offender score because it was not defined as a " violent offense" under the general

definitional   statute,       former RCW 9. 94A.030( 29) ( 1988) (                now   RCW 9. 94A.030( 54)).         Becker, 59


Wn. App. at 850 -51. Noting an " apparent" conflict between the former definitional statute and the

former offender score statute, Division One held that the plain language of the statutes did not

conflict and, instead, could be harmonized:

           The apparent conflict in the sections is based on the assumption that the attempted
           robbery      can   only   receive   two   points   if it is   a " violent offense."   Contrary to Becker' s
           contention, the offense does not receive two points because it is a violent offense,
           but rather, it receives two points because the completed crime of robbery in the
           second degree would receive two points and the attempted robbery is to be treated
           as a completed crime.       According to the plain language of [ former] RCW
           9. 94A.360( 5) the attempt must be treated the same as the completed crime. Such a
           reading of the two sections gives effect to each section and does not distort the
           language of the sections.


Becker, 59 Wn. App. at 852. Division One subsequently followed Becker in State v. Howell, 102

Wn.   App.    288, 292 -95, 6 P. 3d 1201 ( 2000), and Division Three has followed Becker in State v.


Knight, 134 Wn.          App.    103, 138 P.3d 1114 ( 2006),                aird, 162 Wn.2d 806, 174 P. 3d 1167 ( 2008).

The same reasoning applies here.

           Ashley       argues   that Becker         and   Knight        were   wrongly decided because            they " did not

adequately take into account the fact that, where the definitional section of the [ Sentencing Reform

Act   of   1981], [ RCW 9. 94A]. 030, provides that certain offenses are violent offenses, non -listed


offenses are       definitionally      not violent offenses."             Reply Br.   of   Appellant   at   5.   He contends that


definitional    statutes are "       integral to the statutory           scheme and must     be   given effect."     Reply Br. of

Appellant     at   5.   We disagree that Becker and Knight did not give effect to the definitional statute;


they did so by harmonizing the definitional statute with the offender score statute.


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No. 45173 -5 -II



         Ashley also argues that any ambiguity must be resolved in his favor under the rule of lenity.

But because the approach in Becker harmonizes the plain language of the statutes, there is no

ambiguity and the rule of lenity does not apply. We also note that the legislature' s failure to amend

the statutes in the 24 years since Becker was issued reflects its acquiescence to the court' s

conclusions       in that   case.    See State     v.   Berlin, 133 Wn.2d 541, 558, 947 P. 2d 700 ( 1997) ( " The


failure of the Legislature to amend a statute to change the statute' s judicial construction is

reflective of legislative acquiescence in the Court' s interpretation. ").


             For the reasons stated in Becker, and by harmonizing the definitional and offender score

statutes, we conclude that the trial court did not err in treating the attempted second degree assault

the same as the completed crime and including this prior offense as one point in Ashley' s offender

score.




             We affirm Ashley' s conviction and his sentence.

             A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.


             Ashley   further     argues   that the trial       court erred   in ( 1)   admitting prior bad acts evidence

under    ER 404( b),    and ( 2) imposing the LFOs. These arguments also fail.

                                                   ADDITIONAL FACTS


                                                         I. BACKGROUND


             On May 27, 2013, officers from the Vancouver Police Department arrived at Ashley' s

 sister' s    apartment     to   arrest   Ashley   and    his    sister on   outstanding    arrest warrants.   The officers




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No. 45173 -5 -II



knocked repeatedly         on    the door.   Although the officers had initially heard voices inside the

apartment, no one responded.



          About 45 minutes later, the officers obtained a key from the apartment manager and

announced that they had a key and were opening the.door. When they opened the door, the officers

called out to anyone inside the apartment, explained they were the police and were not going away,

and asked    the   people   inside to   come out.   Makayla Gamble, Ashley' s former girlfriend, and her

children met the officers in the downstairs living area.

          Once Gamble was outside, the officers asked Gamble if Ashley was inside, and she told

them that he was upstairs. She also told the officers that Ashley had detained her in the bathroom.

                                                  II. PROCEDURE


                             A. MOTION To ADMIT PRIOR BAD ACTS EVIDENCE


          The State charged Ashley by amended information with unlawful imprisonment (domestic

violence).   Before trial, the State moved to introduce evidence of Ashley' s prior domestic violence

against   Gamble.     The State argued that this evidence was to show why Ashley was able to keep

Gamble in the bathroom without her consent despite the lack of any explicit threat.

          At the motion hearing, Gamble testified that she had been in a relationship with Ashley

from 2000 to 2005, and that he was the father of two of her children. She testified that she and her

children were visiting Gamble' s sister when the police arrived and that Ashley had put her and her

infant in an upstairs bathroom so the police would not hear them. She remained in the bathroom


for 40 to 50 minutes despite her telling Ashley several times that she wanted to leave. She further

testified that she   did   not   feel free to leave —in   part because prior domestic abuse by Ashley caused




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No. 45173 -5 -II



her to fear Ashley.        She stated that if it had not been for her history with Ashley, she would have

gone downstairs rather than stay in the upstairs bathroom.

           Gamble also testified about several past domestic violence incidents that happened between

2000   and   2008.      Gamble stated that she had reported only one incident, a 2004 incident, to the

police,    but   she   then "   dropped it."    1A Report    of   Proceedings ( RP)   at   78.   In addition, Gamble


testified that she still feared Ashley and that she felt unsafe when she was in the bathroom because

of his assaultive history. •But she admitted that Ashley did not expressly threaten her when he told

her to go in the bathroom and be quiet.


           The State argued that Ashley' s prior violence against Gamble explained the dynamics of

their relationship and would help the jury understand why Ashley was able to control Gamble' s

behavior without any express threats and why Gamble initially complied with Ashley' s directions

and did not yell for help. The State further argued that although the past acts of violence occurred

several years earlier, these acts were still relevant because Gamble was aware that Ashley was

capable of violence against her. Ashley argued that the trial court should not admit this evidence

because the State was not using it to establish an element of the offense, it was not relevant to

Gamble' s credibility because she was not recanting her earlier statements, Gamble' s testimony

and the single police report from 2004 were not sufficient to establish the prior acts by a

preponderance of the evidence, and the passage of time had made the incidents less probative.


           The trial court found that ( 1) Gamble' s testimony established the prior acts of violence by

a preponderance of          the   evidence, (   2) the purpose of the evidence was to show the restraint was


without her consent because of her ongoing fear based on this history, and ( 3) the probative value

of   the   prior acts evidence outweighed          the   possible prejudice.   The trial court admitted the prior




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No. 45173 -5 -II



domestic violence evidence and invited the parties to submit limiting instructions related to this

evidence.



                                                               B. TRIAL


             At trial, Gamble testified that when the police arrived on May 27, Ashley forced her to

remain in an upstairs bathroom. Gamble told Ashley twice that she wanted to leave the bathroom

and    to   go   home;    Ashley      did   not respond.      She also tried to open the door three or four times, but


Ashley       would close        it   again.      Once when she opened the door, Ashley was in the hallway, and

when        he   saw   her   open    the   door, " his face   was   different,"   and "   he looked   pissed off."   1B RP at


195.


             Gamble also testified about four instances of past physical abuse that occurred from 2000

to 2005.         She testified that she had only called the police after the 2004 incident and that she later

recanted her allegations because she loved Ashley. In addition, Gamble testified that she had only

seen Ashley three or four times since 2008.

             On cross- examination, Gamble admitted that Ashley did not yell at her, threaten her, or

physically force her into the bathroom. And she agreed that she " remained in the bathroom under

 her]   own power."            1B RP       at   203.   But on redirect, Gamble reiterated that Ashley did not have to

threaten to harm her to keep her in the bathroom because she was still afraid of him given their

past history and because all he had to do was to look at her a certain way and she would comply.

Ashley did not call any witnesses.

             The   jury      found    Ashley      guilty   of unlawful   imprisonment ( domestic       violence).    Although


Ashley argued at sentencing that he was not able to pay the LFOs, the trial court also imposed




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No. 45173 -5 -II



various   LFOs.      The judgment and sentence does not contain any findings regarding Ashley' s

ability to pay LFOs.

                                                ADDITIONAL ANALYSIS


                                                         I. ER 404( B) EVIDENCE


          Ashley argues that the trial court erred in admitting the prior bad acts evidence under ER

404( b) because ( 1) the State failed to                 prove    the   prior acts   by   a preponderance of      the   evidence, (   2)


the    evidence    was    not   relevant       to   an     element      of   the   crime,   and (   3)    the evidence was overly

prejudicial because the prior acts were too remote in time to be probative. We disagree.

                                A. STANDARD OF REVIEW AND ER 404(B) ANALYSIS


          We    review a    trial court' s evidentiary             rulings     for   abuse of   discretion. State v. Finch, 137


Wn.2d 792, 810, 975 P. 2d 967,             cent.     denied, 528 U.S. 922 ( 1999). A trial court abuses its discretion


when    its evidentiary ruling is "'          manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons. '         State   v.   Downing,          151 Wn.2d 265, 272, 87 P. 3d 1169 ( 2004) ( quoting                 State

ex rel.   Carroll   v.   Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)).                           It is the appellant' s burden to


prove abuse of discretion. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 ( 1999).

          ER 404( b)      prohibits     the   admission of         evidence        of other crimes, wrongs, or acts "`       to prove


the    character of a person       in   order       to    show action        in conformity therewith.'           State v. Foxhoven,


161 Wn.2d 168, 174 -75, 163 P. 3d 786 ( 2007) ( quoting ER 404( b))                                      Before admitting prior bad

acts    evidence,    the trial    court       must "(        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. '        Foxhoven, 161 Wn.2d at 175 ( quoting


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No. 45173 -5 -II


State   v.      Thang, 145 Wn.2d 630, 642, 41        P. 3d 1159 ( 2002)). " Preponderance of the evidence means


that considering all the evidence, the proposition asserted must be more probably true than not."

State      v.   Ginn, 128 Wn.       App. 872, 878,     117 P. 3d 1155 ( 2005), review denied, 157 Wn.2d 1010


 2006).


                                              B. PROOF OF PRIOR BAD ACTS


                Ashley argues that the evidence did not establish the prior bad acts by a preponderance

because Gamble did not provide any police or medical documentation of the incidents and because

Gamble admitted that she called the police to report only one of the incidents and then recanted

her allegations. We disagree.


                At the motion hearing, Gamble testified about each of the incidents she later described to

the jury, that testimony was not disputed, and the trial court apparently found Gamble' s testimony

credible. Ashley cites to no authority establishing that a witness' s testimony alone cannot establish

a   fact    by      a preponderance of     the   evidence.   Furthermore, to the extent the trial court' s decision


rested on it finding Gamble' s testimony credible, we do not review a trial court' s credibility

determinations.           State   v.   Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990).       Accordingly, this

argument fails.


                                                       C. RELEVANCE


                Ashley next argues that the evidence was not relevant to an element of the crime. Again,

we disagree.


                A   person commits       unlawful   imprisonment if he " knowingly restrains another person."


RCW 9A. 40. 040( 1).              RCW 9A.40. 010( 6) provides,


                 Restrain" means to restrict a person' s movements without consent and without
                legal authority in a manner which interferes substantially with his or her liberty.

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No. 45173 -5 -II



         Restraint is "        without     consent"   if it is    accomplished   by (   a)   physical force,
         intimidation, or deception.


 Emphasis      added.)       The trial court expressly found that the purpose of the evidence was to show

that the restraint was without Gamble' s consent because of her ongoing fear based on Ashley' s

history of violence with her. Essentially, the trial court found that the domestic violence evidence

was material and relevant to both Gamble' s lack of consent and to whether Ashley accomplished

the restraint by intimidation. We agree that personal history with a violent person can certainly be

relevant to whether a particular action or behavior amounts to intimidation from the victim' s

                3
perspective.         Accordingly, this argument fails.

                                      D. PROBATIVE VS. PREJUDICIAL VALUE


         Ashley next argues that because the domestic violence incidents occurred several years

before this incident, they were too remote to be probative, and, thus, the trial court erred when it

determined that their prejudicial value did not outweigh any probative value. Again, we disagree.

         Although the evidence of the prior domestic violence incidents is potentially highly

prejudicial, that evidence was also highly probative in this instance because the State claimed that

Ashley had restrained Gamble through the use of a subtle form of intimidation that the jury could

fully understand only if it was aware of the violent nature of Gamble and Ashley' s relationship.

Although the prior incidents had taken place several years earlier, this history was still highly


3
    Citing   State   v.   Magers, 164 Wn.2d 174, 189 P. 3d 126 ( 2008),      and State v. Baker, 162 Wn. App.
468, 475, 259 P. 3d 270,          review   denied, 173 Wn.2d 1004 ( 2011), Ashley also argues that " this sort
of prior act evidence is appropriate in cases where the alleged victim recants, to show, why she
might  do so out of fear, which was not the circumstance here." Br. of Appellant at 6. Although
these cases state that prior domestic violence evidence is admissible " to assist the jury in judging
the credibility of a recanting victim," these cases do not establish that this is the only purpose for
which    the trial        court can admit such evidence.     Magers, 164 Wn.2d at 186; see also Baker, 162
Wn. App. at 474 -75.
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No. 45173 -5 -II



relevant to how Gamble perceived the situation, and Gamble' s testimony about her relative lack

of contact with Ashley in recent years explained why these incidents were so dated. Accordingly,

this argument fails.


             The trial court conducted the proper ER 404(b) analysis, and Ashley does not show that its

findings      were   improper.   Thus, we hold that the trial court did not abuse its discretion when it


admitted this evidence.


                                                         II. LFOs


             Finally, Ashley argues that the trial court erred in imposing LFOs. Because the trial court

did not make a.written finding as to Ashley' s ability to pay, and Ashley has not shown that the

State has sought to enforce the LFOs, Ashley is not an aggrieved party, and this issue is not yet

ripe   for   review.   RAP 3. 1; State   v.   Lundy,   176 Wn. App. 96, 108 -09, 308 P. 3d 755 ( 2013); State v.


Hathaway, 161          Wn.   App.   634, 651, 251 P. 3d 253,        review   denied, 172 Wn.2d 1021 ( 2011).


Accordingly, we decline to further address this issue.

             We affirm Ashley' s conviction, his sentence, and his LFOs.




 We concur:




 MAXA, J.




SUTTON, J.




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