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

STATE OF WASHINGTON,                            No. 70911-9-

                       Respondent,                                               CD



                  v.                            UNPUBLISHED OPINION
                                                                                  o

GARTH OLSEN,                                                                      ro




                       Appellant.               FILED: January 20, 2015

      Schindler, J. — A jury convicted Garth Olsen of voyeurism. Olsen contends the

court erred in admitting evidence in violation of ER 404(b) and ER 403. We affirm.

                                        FACTS

      At approximately 1:00 a.m. on February 26, 2013, Renton Police Officer Mario

Magnotti and Officer Eric Stevens responded to a 911 call at the Big Foot Java

espresso stand. The barista showed Officer Magnotti a cell phone video she recorded

that morning of Olsen "banging on the glass and yelling and screaming and things like

that." The officers found Olsen in the alley behind Big Foot Java. Officer Magnotti

testified that Olsen began "ranting" and said "something like, you know, 'Do you see

what they're wearing?' Or 'They don't wear anything, the baristas around here.'. ..
No. 70911-9-1/2



They're all whores.'" The officers issued Olsen a "trespass admonishment" and told

him not to return to Big Foot Java or he would be arrested for trespassing.

      At 4:15 a.m. that same morning, M.M. arrived for her shift at Cowgirls Espresso

on Lake Washington Boulevard. Cowgirls Espresso is located less than two miles from

Big Foot Java. The baristas at Cowgirls Espresso wear bikinis and lingerie. There is a

drive-up window on one side of the stand and a walk-up window on the other side. In

the back of the stand is an employee bathroom with a small window approximately

seven feet above the ground. When M.M. parked her car, she saw "movement by [the]

walk-up window" and noticed Olsen "staring" into the stand. M.M. rolled down her car

window and asked Olsen "what he was doing." Olsen asked M.M. why she was there

and M.M. responded, "Because I work here." Olsen said, "Oh, okay," and "kind of

wandered off."

      M.M. entered the stand, locked the door behind her, and turned off the alarm.

M.M. then went into the bathroom to change into her work outfit. As M.M. was

changing, she heard a "big boom" that "sounded like it came from outside of the wall of

the bathroom." M.M. looked up and saw Olsen's face in the bathroom window. Olsen

said, "You're a fucking whore, let me see your ass, let me see you." M.M. told Olsen

she was "going to call the cops, and he needs to go, he needs to leave." Olsen "said he

had already called the cops." M.M. "hid by the toilet" and called 911 on her cell phone.

       Officers Magnotti and Stevens responded to the 911 call from Cowgirls

Espresso. Officer Stevens saw Olsen walking north along Lake Washington Boulevard

a few hundred yards from Cowgirls Espresso. When Officer Stevens directed Olsen to
No. 70911-9-1/3



stop, Olsen started running away. Officer Stevens chased Olsen on foot and arrested

him.


       Officer Stevens found several pieces of paper in Olsen's jacket pockets. One of

the pieces of paper had multiple handwritten addresses for pornographic web sites.

Another piece of paper contained the web site address for Cowgirls Espresso and the

words "white/Nissan" with a license plate number underneath. The description of the

car and the license plate number matched the car M.M. drove to work that morning.

The State charged Olsen with one count of voyeurism for knowingly viewing M.M. at

Cowgirls Espresso on February 26, 2013.

       Before trial, the State filed a motion to admit evidence of Olsen's conduct earlier

that same morning at Big Foot Java. The State argued that the evidence of the

uncharged conduct was admissible under ER 404(b) to show that Olsen knowingly

viewed M.M. for the purpose of arousing or gratifying his sexual desire. The State

argued the evidence was also admissible under the res gestae exception. Olsen did not

dispute that the Big Foot Java incident occurred but argued the evidence was

inadmissible under ER 404(b). The court engaged in an analysis under ER 404(b) and

granted the motion to admit testimony about the incident at Big Foot Java. The court

ruled that the evidence of Olsen's conduct earlier that morning "goes to his state of mind

and mental state." The court also ruled that "there is a continuum here in terms of res

gestae." The court expressly notes that the Big Foot Java incident occurred "about an

hour or two prior to the incident [at Cowgirls Espresso] at a location just down the

street." The court then balanced the probative value against any prejudice and

concluded the evidence was "more relevant than prejudicial."

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No. 70911-9-1/4



       During the three-day jury trial, a number of witnesses testified on behalf of the

State, including M.M., Officer Magnotti, and Officer Stevens. Officer Magnotti and

Officer Stevens testified about the incident at Big Foot Java and arresting Olsen near

Cowgirls Espresso later that morning.

       M.M. testified that when she saw Olsen watching her, she "freaked out" and was

scared Olsen was going to get into the stand. M.M. said she was topless and was

pulling up her underwear when she heard the noise outside and saw Olsen looking in

the window at her.

       Tommy McClure testified that he saw Olsen "standing on top of the ice machine"

outside of Cowgirls Espresso when he arrived to deliver milk. McClure testified that

Olsen was "[s]quatting down . . . and there's a little window there. It looked like he was

looking in the window." McClure said when he parked nearby and got out of his truck

three or four minutes later, Olsen "confronted [him], . . . stood there for a secondf,] and

then turned around and walked north towards the apartments or condos that are there."

       Detective Gregory Barfield interviewed Olsen after he was arrested on February

26. The court admitted into evidence the audio recording of Olsen's interview with

Detective Barfield. During the interview, Olsen admits that he climbed up on the ice

machine outside of Cowgirls Espresso and looked in the window, "trying to get a look at

[M.M.]." Olsen also admits that he called M.M. a "fuckin' whore." Olsen denies M.M.

was naked when he saw her but says that M.M. "might have been putting makeup on

her nipples." Olsen states he wrote down M.M.'s license plate number because he

thought he could use it to "look up some more information about her."
No. 70911-9-1/5



       In closing, defense counsel argued Olsen was guilty of only the lesser included

crime of attempted voyeurism because M.M. was not naked when Olsen viewed her

through the window. The attorney also argued M.M. did not have "a reasonable

expectation of privacy in the stand itself."

       The jury convicted Olsen as charged. Olsen appeals.

                                         ANALYSIS

       Olsen argues the court erred in admitting evidence of the Big Foot Java incident

and the note in his pocket containing the web site address for Cowgirls Espresso and a

description of M.M.'s car and license plate number. Olsen asserts the Big Foot Java

incident had no probative value and was unfairly prejudicial and the court failed to

conduct an ER 403 analysis before admitting the note.

       The admissibility of evidence is within the discretion of the trial court. State v.

Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). We review a trial court's ruling

on the admissibility of ER 404(b) evidence for abuse of discretion. State v. Maqers, 164

Wn.2d 174, 181, 189 P.3d 126 (2008). Abuse of discretion is shown only when a trial

court's decision is manifestly unreasonable or based upon untenable grounds or

reasons. Maqers. 164 Wn.2d at 181. Evidence is relevant if it "[has] any tendency to

make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence." ER 401. The
trial court's balancing of the danger of prejudice against the probative value of the
evidence is subject to abuse of discretion that we will overturn "only if no reasonable
person could take the view adopted by the trial court." State v. Posey, 161 Wn.2d 638,
No. 70911-9-1/6



648, 167 P.3d 560 (2007). A trial judge, not an appellate court, is in the best position to

evaluate the prejudicial effect and relevancy of evidence. Posey, 161 Wn.2d at 648.

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

character of a person in order to show action in conformity therewith." However,

evidence of a defendant's prior acts is admissible under ER 404(b) for other purposes,

"such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident." ER 404(b). In order to admit uncharged crimes under

ER 404(b), the trial court must find by a preponderance of the evidence that the

uncharged acts occurred, identify the purpose for admitting the evidence, find the

evidence is relevant for that purpose, and balance the probative and prejudicial effect.

In re Pet. Of Coe, 175 Wn.2d 482, 493, 286 P.3d 29 (2012).

       Olsen does not dispute the Big Foot Java incident occurred. Olsen contends the

court erred in ruling the Big Foot Java incident was admissible to prove intent or as res

gestae.

       To convict Olsen of voyeurism, the State had to prove he knowingly viewed

another person "for the purpose of arousing or gratifying the sexual desire of any

person." RCW 9A.44.115(2).1 Prior misconduct evidence is necessary to prove intent

"when intent is at issue or when proof of the doing of the charged act does not itself


       1 RCW 9A.44.115 states, in pertinent part:
                (2) A person commits the crime of voyeurism if, for the purpose of arousing or
       gratifying the sexual desire of any person, he or she knowingly views, photographs, or
       films:
              (a) Another person without that person's knowledge and consent while the
       person being viewed, photographed, or filmed is in a place where he or she would have a
       reasonable expectation of privacy; or
                (b) The intimate areas of another person without that person's knowledge and
       consent and under circumstances where the person has a reasonable expectation of
       privacy, whether in a public or private place.
No. 70911-9-1/7



conclusively establish intent." State v. Powell. 126 Wn.2d 244, 262, 893 P.2d 615

(1995). During the incident at Big Foot Java, Olsen harassed a female barista and

"rant[ed]" to Officer Magnotti about how the baristas in the area "don't wear anything"

and said that they were "all whores." The evidence of Olsen's explicit language and

conduct at Big Foot Java was highly probative and relevant to prove he knowingly

viewed M.M. for the purpose of arousing or gratifying his sexual desire.

      The case Olsen relies on, State v. Poque. 104 Wn. App. 981, 17 P.3d 1272

(2001), to argue the evidence was not relevant to prove the essential element of intent,

is inapposite. In Poque. this court held that evidence of a defendant's prior cocaine

possession had no relevance other than propensity under ER 404(b) because it did not

rebut the defense of unwitting possession. Poque. 104 Wn. App. at 985.

      Olsen also argues the court erred in concluding the evidence was admissible

under the res gestae exception. The res gestae or "same transaction" exception to ER

404(b) allows evidence of other misconduct to " 'complete the story of the crime on trial

by placing it in the context of nearby and nearly contemporaneous happenings.'" State

v. Brown. 132 Wn.2d 529, 576 n.106, 940 P.2d 546 (1997) (quoting 1 John W. Strong,

McCormick on Evidence § 190, at 799 (4th ed. 1992)). "Where another offense

constitutes a 'link in the chain' of an unbroken sequence of events surrounding the

charged offense, evidence of that offense is admissible 'in order that a complete picture

be depicted for the jury.'" Brown. 132 Wn.2d at 571 n.91 (quoting State v. Tharp. 96

Wn.2d 591, 594, 637 P.2d 961 (1981)).

       Here, the court did not abuse its discretion in admitting evidence of the Big Foot

Java incident under the res gestae exception and ruling that the probative value of the

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No. 70911-9-1/8



evidence outweighed potential prejudice. The Big Foot Java incident occurred less than

two miles from Cowgirls Espresso and just a few hours before the charged crime and

involved similar harassing behavior directed towards a female barista. Olsen also used

similar language in the two closely related incidents, calling the baristas "whores."

Further, evidence of the Big Foot Java incident explained why Officer Stevens and

Officer Magnotti attempted to stop Olsen when they saw him walking along Lake

Washington Boulevard near Cowgirls Espresso.

      The case Olsen relies on, State v. Trickier. 106 Wn. App. 727, 25 P.3d 445

(2001), is distinguishable. In Trickier, the defendant was charged with possession of a

stolen credit card. Trickier. 106 Wn. App. at 730. The trial court admitted into evidence

several items of personal property belonging to another found in the defendant's

possession. Trickier. 106 Wn. App. at 732. On appeal, the court rejected the argument

that the evidence was admissible under a res gestae theory because "[w]hile the events

leading up to the discovery of the stolen credit card were relevant and somewhat

probative, it was not shown that [the defendant's] possession of other allegedly stolen

items was an inseparable part of his possession of the stolen credit card." Trickier. 106

Wn. App. at 734. The court concluded that the evidence was more prejudicial than

probative because it allowed the State to prove the defendant must have known the

card was stolen because he was in possession of numerous other allegedly stolen

items. Trickier. 106 Wn. App. at 734.

      Olsen next argues the court abused its discretion by admitting the note found in

his pocket. The note contained the web site address for Cowgirls Espresso and a



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No. 70911-9-1/9



description of M.M.'s car and license plate number. Olsen asserts the court failed to

conduct an ER 403 analysis. The record does not support Olsen's argument.

      The defense filed a motion to suppress the note found in Olsen's pocket.

Defense counsel argued the information contained in the note was not relevant to prove

an element of the charged offense and would "more likely arouse in the jury an

emotional response as to the possible outcomes this evidence signifies." The State

argued the note was "highly probative of [Olsen's] identity and his location at the scene."

The court denied the motion to suppress, ruling that the note was relevant to prove

identity. The court ruled that under ER 403, the prejudice did not outweigh the

probative value, stating, "The fact that it is damaging, apparently very damaging, to the

Defense case, doesn't mean that it's unfairly prejudicial under Evidence Rule 403."

       We affirm.




                                                         .j/i^-egJL , f
WE CONCUR:
