                                                                                                                    t,
                                                                                                                         4Jh   OF
                                                                                                                                     PPEltIS

                                                                                                                  20i II AUG 26
                                                                                                                                    At li: 37
                                                                                                                               WA     NG TON

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT`
                                                      ON3'

                                                           DIVISION II

STATE OF WASHINGTON,                                                                     No. 44157 -8 - II


                                          Respondent,


         v.



BALDEMAR LAZARO,                                                                  UNPUBLISHED OPINION


                                          Appellant.


         JOHANSON, C. J. —                Baldemar Lazaro appeals from a second degree assault conviction


and   sentence.      Lazaro        argues      that ( 1)   the trial court abused its discretion when it admitted

evidence      of   his gang        affiliation     and (   2) his    counsel     was   ineffective.     In his statement of


additional
               grounds1      (




                                 SAG),   Lazaro further asserts that ( 3) juror 14 biased the jury against him,

inappropriately influencing              the   jury   verdict; (   4) the sentencing judge miscalculated his offender

score and made biased statements; and ( 5) the prosecutor engaged in evidence spoliation and

mismanagement under                CrR 8. 3.      We hold that ( 1) the trial court abused its discretion when it

admitted      the gang- related          evidence,     but the     error   was   harmless;   and (    2) Lazaro' s ineffective


counsel claim       fails.       Additionally, we hold that ( 3) Lazaro' s claim that juror 14 was biased is

meritless, (   4) the sentencing score was correct and the judge was not biased, and ( 5) Lazaro' s

claims of mismanagement and evidence spoliation are unsupported                              by   the   record.   Accordingly,

we affirm Lazaro' s conviction and sentence.




1
    RAP 10. 10.
No. 44157 -8 -II



                                                     FACTS


                                            I. BACKGROUND FACTS


         In August. 2011,        Richard Hughes, a juvenile rehabilitative counselor at Green Hill


School,2 accompanied Lazaro, Braulio Mora, and four other residents into a recreation yard.

Many residents in the intensive management unit at Green Hill are affiliated with gangs,

including Lazaro and Mora, who are members of rival gangs, the Nortenos and Surenos.

         After Hughes let the six men outdoors, Lazard and Mora separated from the group and

began to " face     off."   III Verbatim Report      of   Proceedings ( RP) (       Aug. 9,   2012)   at   28.   Hughes


directed Lazaro and Mora to stop fighting while he radioed for support, but before anyone

arrived, Lazaro knocked Mora to the ground and continued to punch him. Hughes pulled Lazaro

off   Mora; however Lazaro freed himself from Hughes                    and   kicked Mora   across   the face.   Lazaro


continued to punch Mora in the head and face until Hughes again separated Lazaro from Mora.

After Lazaro knocked Mora down, Mora did not fight back and appeared as though he was trying

to protect himself.


         When Security Officer Rick. Coward arrived, Mora had blood dripping from his face;

Officer Coward transported Mora to the hospital. In total, Mora suffered four facial fractures.

                                             II. PROCEDURAL FACTS


         The State     charged     Lazaro   with   second   degree       assault.   Before trial, Lazaro moved to


 exclude all        related
               gang -            evidence and   testimony       under   ER 404( b),   arguing that it was irrelevant

 and   unfairly   prejudicial.    Specifically, Lazaro argued that the jury would be more inclined to

 2 Green Hill School is a juvenile detention institution located in Chehalis, Washington and
 exclusively houses males ages 15 to 21.       Green Hill housed both Lazaro and Mora in the
 intensive management unit, the most restrictive unit at Green Hill School.




                                                            2
No. 44157 -8 -II



convict him if they knew about his gang affiliation, and that the evidence was not relevant to the

crime because neither Lazaro nor Mora asserted that the fight was related to their gang

activities.3 Lazaro further argued that because there were two eyewitnesses to the incident, the

State did     not need          the gang            evidence.    The State argued that the gang- related evidence was

relevant to show Lazaro' s motive to fight Mora, was not unfairly prejudicial, and was helpful to

show   why the two              men        fought.     The State argued that without the gang -related evidence, there

would   be    a "   big      hole there        as   to why this happened."            III VRP ( Aug. 9, 2012)        at   5.   The court


denied Lazaro'           s    motion.         Finding that the gang evidence was relevant to establish Lazaro' s

motive to fight, the trial court stated in an oral ruling,

         I'   m    not       going to         exclude     I will allow it, of course, subject to laying an
                                                          it.
         appropriate            foundation. `       Motive' is specifically mentioned in rule 404(b) as being
         allowable —            prior        conducts —prior acts of prior conducts or gang affiliations, I
         would       say,      would         be that to    show motive.          And I know motive is not an element,
         but it' s part of the story, and I am going to allow the State to do it.

III VRP ( Aug. 9, 2012) at 6 -7.

         At trial, Hughes testified that he was familiar with Lazaro and Mora because they were

residents     in the         unit   for    which     he   was responsible.         Hughes testified that Lazaro and Mora were


members of rival gangs, and that gang rivalries are common at Green Hill and threaten the safety

and   security      of staff and residents.                Explaining the likely reason behind Mora' s refusal to testify

at trial, Hughes stated that staff usually does not get cooperation from victims and perpetrators
                                                                                                4
when    gangs       clash           at    Green Hill because " it'      s       their code. "       III VRP (   Aug. 9,    2012) at 50.




 3 Lazaro and Mora did not testify at trial nor give a written statement concerning the assault.
 4
     Hughes       explained              that residents    did not "   snitch"      because if they did, they would likely be,
 targeted by other gang members in Green Hill. III VRP (Aug. 9, 2012) at 51.


                                                                            3
No. 44157 -8 -II



Hughes also testified when recalled by the State that gang members generally do not back down

from fights with rival gang members because they risk retaliation from their own gang for not

 putting in      work."     III VRP ( Aug. 9, 2012)          at   83.    Lazaro did not request a limiting instruction

for the gang evidence or for any of Hughes' s testimony.

           The jury convicted Lazaro as charged. He appeals his conviction and sentence.
                                                            ANALYSIS


                                                   I. ER 404( b) EVIDENCE


           Lazaro argues that the trial court erred when it admitted gang evidence because there was

no   nexus     connecting his gang            affiliation    to the      assault.     The State responds that the gang

evidence was admissible under ER 404( b) because it was relevant to show motive for the assault

or that it was admissible under ER 404( b)' s res gestae exception to give the jury a complete story

of   the   crime.   We agree with Lazaro that the trial court abused its discretion when it admitted the

gang -related evidence and that the gang -related evidence was not admissible under the res gestae

exception, but hold that the error was harmless.

                                   A. STANDARD OF REVIEW AND RULES OF LAW

            We                  trial   court' s            under       ER 404( b) for    abuse   of   discretion.   State v.
                  review    a                      ruling


 Foxhoven, 161 Wn.2d 168, 174, 163 P. 3d 786 ( 2007);                        State v. Yarbrough, 151 Wn. App. 66, 81,

 210 P. 3d 1029 ( 2009).                A trial court abuses its discretion when its decision is manifestly

 unreasonable or          based   on untenable grounds or reasons.                  State v. Powell, 126 Wn.2d 244, 258,


 893 P. 2d 615 ( 1995).


            Generally, evidence of other crimes, wrongs, or acts is not admissible to suggest that the
 defendant is       a '             type
                           criminal -         person '      or to prove a person' s character for the purpose of




                                                                   4
No. 44157 -8 -II


                                             in conformity therewith                                         ER 404( b); Yarbrough,
establishing that he              acted                                        on a given occasion.




151 Wn.     App.        at   82 ( quoting Foxhoven, 161 Wn.2d                      at      175).    On the other hand, evidence of


other bad acts may be admitted for certain enumerated purposes, such as to prove motive, intent,
or   identity.    ER 404( b).            Even if evidence is admissible under one of ER 404( b)' s exceptions, it

must still be excluded if the unfair prejudice substantially outweighs the evidence' s probative

value.    State    v.   Fuller, 169 Wn.             App.     797, 829 -30, 282 P. 3d 126 ( 2012). "                Unfair prejudice" is


caused by evidence that is likely to arouse an emotional response rather than a rational decision.

State v. Rice, 48 Wn. App. 7, 13, 737 P. 2d 726 ( 1987).

          Gang     evidence             falls   within     the   scope   of    ER 404( b) — while         it may not be admitted to

show the defendant is a bad person, it may be admitted for other purposes, such as proof of

motive,    identity,         or   intent.       Yarbrough, 151 Wn.             App.   at    81.    Courts consider evidence of gang

affiliation prejudicial and require a connection between the crime and the defendant' s gang

affiliation   in   order          to   admit evidence of         gang membership.                 See Dawson v. Delaware, 503 U. S.


 159, 166 -67, 112 S. Ct. 1093, 117 L. Ed. 2d 309 ( 1992);                              State v. Embry, 171 Wn. App. 714, 732,

287 P. 3d 648 ( 2012),                 review    denied, 177 Wn.2d 1005 ( 2013); State v. Campbell, 78 Wn. App.


 813, 822, 901 P. 2d 1050,                   review   denied, 128 Wn.2d 1004 ( 1995).                    Furthermore, before the trial


 court can       admit       gang       evidence,     it   must (   1)   find by a preponderance of the evidence that the

 misconduct occurred, (                 2)   identify   the intended      purpose       for the      evidence, (   3). determine whether


 the evidence is relevant to prove an element of the crime charged, and ( 4) determine whether the

 probative value outweighs the prejudicial effect. Yarbrough, 151 Wn. App. at 82.




                                                                           5
No. 44157 -8 -II


                                                           B. ER 404( b)


          Lazaro argues that the trial court failed to conduct the required analysis to determine

whether the gang affiliation evidence was admissible for and relevant to prove Lazaro' s motive
for the   assault.    The State responds that the trial court did conduct the required analysis and


properly determined that the gang affiliation evidence was admissible and relevant to prove

motive.      We agree with Lazaro and hold that the gang- related evidence had little probative value

and   was    highly       prejudicial.       Although we agree with Lazaro that the trial court abused its

discretion when it admitted the gang evidence, we hold that the error was harmless.

          To convict Lazaro of second degree assault, the State had to prove beyond a reasonable

doubt that Lazaro ( 1) intentionally assaulted Mora and ( 2) recklessly inflicted substantial bodily

harm    on   Mora. RCW 9A.36. 021( 1)(             a). "   Motive," that is the      inducing     cause of an action,'   is not


an element of second              degree    assault.   See RCW 9A.36. 021( 1)(         a).    But although the State is not


required to prove motive, the State is permitted to introduce evidence of motive if the evidence

is "' relevant    and     necessary        to prove an     essential element of      the     crime. '   Yarbrough, 151 Wn.


             83 ( quoting State            Boot, 89 Wn.             780, 789, 950 P. 2d 964 ( 1998)).          For example,
App.    at                            v.                     App.

 gang   evidence     is    often used      to   show   that the   motive   for the   crime was peer pressure.      See, e. g.,

 Boot, 89 Wn.      App.      at   789; Campbell, 78 Wn.           App.   at   822.   Indeed, when the State articulates a


 theory that the defendant committed the crime in order to gain status in his gang, we have
 previously held that gang evidence was admissible to establish the defendant' s motive.
 Yarbrough, 151 Wn. App. at 83.




  State v. Boot, 89 Wn. App. 780, 789, 950 P. 2d 964 ( 1998).


                                                                    6
No. 44157 -8 -II



        But our analysis changes when the evidence is " overwhelming and undisputed" as to the

events of   the   crime.       State v. Mee, 168 Wn. App. 144, 159, 275 P. 3d 1192, review denied, 175

Wn.2d 1011 ( 2012).             In Mee, the defendant was on trial for first degree murder by extreme

indifference, and the State presented uncontroverted evidence that the defendant shot a rifle two

or three times indiscriminately at a crowded home. Mee, 168 Wn. App. at 159. We held that this

evidence was so strong that general evidence of gang norms served no purpose other than to

allow the State to suggest that the defendant was guilty because he had criminal propensities.

Mee, 168 Wn.        App.       at   159.     That is, when the untainted evidence is so compelling that gang

evidence    would        add   little, the gang       evidence        is unlikely to be "   relevant   and   necessary"   as




required    by   Yarbrough.          151 Wn.       App.   at   83.   Therefore, we require the State to show not only

that gang evidence was necessary to prove the elements of the charged crime, but also that the
defendant    or   his gang actually           adhered     to the gang behaviors described.       Mee, 168 Wn. App. at

 159.


        This      case   is   highly   analogous      to Mee.         Here, the State offered uncontroverted evidence


that Lazaro      and   Mora fought.           The State offered uncontroverted evidence that Lazaro continued


to attack Mora after Hughes broke up the fight, kicking Mora in the face and repeatedly

punching him       while       he   sat on   the   ground.     The State offered uncontroverted evidence that Mora


 sustained substantial         injuries. As in Mee, the              untainted evidence was   strong   and specific.   As in


 Mee, the gang evidence was general and did not go directly to any element. Hughes' s testimony

 that Lazaro and Mora were in rival gangs, and that gang members generally do not back down

 from fights with rival gang members, was irrelevant to prove that Lazaro intentionally assaulted

 Mora   by kicking       and    hitting      him repeatedly in the face.        Because it was clear to the jury what




                                                                      7
No. 44157 -8 -II



happened between Lazaro and Mora, the gang evidence added nothing to the case except the

 forbidden inference"          that Lazaro' s gang membership showed his propensity to commit the

charged crime.     Mee, 168 Wn. App. at 159 ( quoting State v. Wade, 98 Wn. App. 328, 336, 989

P. 2d 576 ( 1999)).     The trial court abused its discretion by admitting the gang evidence because

the danger of unfair prejudice substantially outweighed the probative value.

                                                       C. RES GESTAE


        In the alternative, the State argues that the gang evidence is admissible to prove res

gestae. We disagree.


        Res gestae evidence is evidence that " complete[ s] the story of the crime by establishing

the immediate time      and place of         its   occurrence."    State v. Brown, 132 Wn.2d 529, 571, 940 P. 2d


546 ( 1997) ( citing State      v.   Lane, 125 Wn.2d 825, 831, 889 P. 2d 929 ( 1995)).        That is, res gestae


evidence makes     up   a "`   link in the chain' of an unbroken sequence of events surrounding the .

charged offense."       Brown, 132 Wn.2d at 571. As we held in State v. Grier, 168 Wn. App. 635,

645 -47, 278 P. 3d 225 ( 2012),            res gestae is no longer a freestanding exception to ER 404( b).

Instead, the   proper analysis        is   relevance under    ER 401.    Grier, 168 Wn. App. at 646. If the res

gestae evidence is relevant, then it is generally admissible under ER 402, unless its potential

prejudice outweighs      its   probative value under         ER 403.     Grier, 168 Wn. App. at 646, 649.

        Mee is instructive here as well. In that case, we analyzed gang affiliation evidence


through the lens of res gestae, holding that " although the gang -related evidence was relevant to

 show the res gestae of the crime, any probative value in the gang -related evidence was

 outweighed    by the   danger       of unfair prejudice."        Mee, 168 Wn.App at 159 n. 6. Here, as

 described above, the gang -related evidence had little, if any, probative value because the



                                                                  8
No. 44157 -8 -II



elements of the crime were clearly established through direct evidence. Therefore, any probative

value the gang -related evidence added to the State' s case against Lazaro was outweighed by the

danger of unfair prejudice. The State' s res gestae argument has no more force here than it did in

Mee, and is rejected.


                                                 D. HARMLESS ERROR


        Although the trial court erred in admitting the gang evidence, the error was harmless in

light of the evidence in this case. When a court erroneously admits prior bad acts evidence under

ER 404( b),       reversal is required " only if the error, within reasonable probability, materially

affected    the   outcome of     the trial."   State v. Halstien, 122 Wn.2d 109, 127, 857 P. 2d 270 ( 1993).


Here, the references to gang culture were brief and fleeting. In comparison, overwhelming

untainted evidence established Lazaro' s guilt. As described above, two guards testified to seeing

Lazaro and Mora fight, that Lazaro continued to attack Mora even after the two were initially

separated, that Mora was on the ground and that Mora did not fight back after being knocked

down. The guards testified that Lazaro hit Mora multiple times in the face, and the State' s

medical evidence corroborated the guards' testimony. Like the eyewitness evidence in Mee, this

is overwhelming evidence that Lazaro committed an assault in the second degree. This evidence

remained untainted by the State' s fleeting references to Lazaro' s gang status, and it precludes

 any reasonable probability that the trial court' s erroneous admission of gang evidence materially

 affected the jury' s verdict. The error was harmless, and Lazaro' s ER 404(b) claim fails.
                                      II. INEFFECTIVE ASSISTANCE OF COUNSEL


           Lazaro argues that his counsel was ineffective because his attorney failed to request a

             instruction          the ER 404( b)                and   that there   was   no   tactical   reason   to   not
 limiting                   on                       evidence
No. 44157 -8 -II


request a      limiting   instruction.     We hold that even assuming Lazaro' s counsel was deficient in

failing to request a limiting instruction, counsel' s failure to do so did not prejudice Lazaro.
             To prevail on an ineffective assistance of counsel claim, a defendant must show both

deficient performance and resulting prejudice; failure to show either prong defeats this claim.

State   v.   McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002), habeas corpus denied, 158 Fed.Appx.


890 ( 9th Cir. 2005),         cent.   denied, 547 U. S.    1151 ( 2006).      Prejudice occurs when, but for the


deficient performance of counsel, there is a reasonable probability that the outcome of trial

would have been different. State v Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563 ( 1996).

             Even assuming, without deciding, that counsel was deficient by failing to request a

              instruction,                 deficiency did   not prejudice         Lazaro.   As described above, the
limiting                      counsel' s




untainted evidence was           compelling.      Although the gang evidence invited the jury to infer that

Lazaro committed the charged crime because he was a bad person, the State also presented

strong and uncontroverted evidence that Lazaro attacked Mora after the fight was broken up, and
that    Lazaro hit Mora repeatedly in             the   face.        The weight of this evidence eliminates any


reasonable probability that the jury found Lazaro guilty because of his gang membership, rather

than    on     the   other   untainted     evidence   the State      presented.    Any failure by counsel did not

prejudice Lazaro, and his ineffective assistance of counsel claim fails.

                                      III. STATEMENT OF ADDITIONAL GROUNDS


             In Lazaro' s SAG, he argues that ( 1) the jury was prejudiced against him because juror 14

 failed to disclose       previous employment at        Green Hill, (2)     the sentencing judge miscalculated his

 offender score, (      3) the judge made biased statements, and ( 4) the prosecution mismanaged the




                                                                10
No. 44157 -8 -II



case and committed evidence spoliation when it failed to preserve any surveillance footage of the

incident.6 We reject all of the claims Lazaro raises in his SAG.

                                           A. JUROR BIAS AND MISCONDUCT


          Lazaro asserts that he was denied a fair trial because juror 14 failed to disclose her

previous employment at Green Hill, and that the trial court erred when it denied Lazaro' s motion

for   a   hearing   to       determine    whether     a   new   trial    was    required.   We review a trial court' s


investigation into jury misconduct for abuse of discretion. State v. Elmore, 155 Wn.2d 758, 761,

123 P. 3d 72 ( 2005).          A party alleging juror misconduct has the burden to show that misconduct

occurred.     State     v.   Hawkins, 72 Wn.2d 565, 566, 434 P. 2d. 584 ( 1967).               Lazaro cannot meet that


burden here because the              record     shows      that juror        14 had, in fact, disclosed her previous


employment during voir dire and neither party moved to dismiss her.7 Lazaro' s claims are based
entirely    on   bare    allegations recited     in   a   letter from juror 12.        The letter claims, among other

things, that juror 14 failed to disclose her employment at Green Hill and improperly influenced

the   jury during     deliberations.       Nothing in the record corroborates juror 12' s claims or otherwise

indicates    jury   misconduct.          The trial court did not abuse its discretion when it denied Lazaro' s

motion for a new trial.




6 Because we address the issue above, Lazaro' s SAG arguments regarding ER 404(b) evidence
are not     included here.         Furthermore, Lazaro'         s    fifth   assertion —that it is unfair to punish him
while allowing Mora to decline to testify when both Lazaro and Mora were motivated by duties
to their   respective gangs —        has no bearing on the jury verdict, the imposed sentence, judicial bias,
                         mismanagement         by   the   prosecution.         Therefore, we do not address this point
 or  any potential
 further.


 7 On the record at Lazaro' s sentencing hearing, defense counsel stated that juror 14 made the
 disclosure during voir dire and that neither party moved to dismiss her.


                                                                    11
No. 44157 -8 -II


                                                 B. SENTENCING ERROR


          Next, Lazaro       argues   that the trial   court miscalculated       his   offender score   in two   ways.   He


argues that the trial court improperly counted his juvenile offenses as two points each instead of

one,   meaning that his        offender score should      have been four instead          of eight.   Lazaro also argues


that his prior convictions stemmed from the same criminal conduct, rather than four distinct

criminal acts. We disagree.


             We   review    the sentencing   court' s calculation of an offender score          de    novo.   State v. Tili,


148 Wn.2d 350, 358, 60 P. 3d 1192 ( 2003); State v. Parker, 132 Wn.2d 182, 189, 937 P. 2d 575


 1997).       However, we review the sentencing court' s determination that multiple offenses were

not    the   same    criminal   conduct    for   abuse   of   discretion      or misapplication of      the law.   State v.


Maxfield, 125 Wn.2d 378, 402, 886 P. 2d 123 ( 1994).


             As a threshold matter, we address Lazaro' s claim that his prior robbery and attempted

robbery convictions constituted the same criminal conduct for purposes of calculating his
offender       score.    As our Supreme Court has held, a defendant may waive the issue of same

criminal conduct when            he affirmatively      stipulates    to his   offender score.    State v. Hickman, 116


Wn.    App.       902, 907 -08, 68 P. 3d 1156 ( 2003) (       citing In re Pers. Restraint of Goodwin, 146 Wn.2d

 861, 875, 50 P. 3d 618 ( 2002));          State v. Nitsch, 100 Wn. App. 512, 518 -20, 997 P. 2d 1000, rev.

 denied, 141 Wn.2d 1030 ( 2000);             In re Pers. Restraint of Shale, 160 Wn.2d 489, 495, 158 P. 3d

 588 ( 2007).        Here, the prosecutor stated that the parties had stipulated to an offender score of

 eight, and       Lazaro'   s counsel   acknowledged       that the sentencing         range was correct.        The record


 clearly shows that Lazaro affirmatively stipulated to his offender score and, thus, he has waived

 his right to challenge whether his robbery convictions constituted the same criminal conduct.



                                                                12
No. 44157 -8 -II



           Next, Lazaro argues that the sentencing court should have calculated one point each for

his prior robbery and attempted robbery convictions because they were juvenile convictions. His

argument        founders      on   the   plain   language     of   the   statute.    Because Lazaro was convicted of a


violent offense         in the     present case,    the sentencing        court     is to apply RCW 9. 94A. 525( 8).        That


subsection states           that the sentencing       court    should "     count two points for each prior adult and


juvenile    violent     felony     offense."     RCW 9. 94A. 525( 8) (         emphasis added).         That is precisely what

the sentencing court did: Lazaro' s first degree robbery convictions and the attempted first degree

robbery conviction were all violent felony offenses and counted two, points each, whether or not
                                                                               8
he   was    a   juvenile     when     he   committed    those      offenses.        Lazaro' s offender score was properly

stipulated as eight- and -one -half points, indicating a standard sentencing range of 53 to 70

months. The sentencing court adhered to this sentencing range when it imposed a sentence of 70

months. The sentencing court committed no error, and we reject Lazaro' s sentencing claims.

                                                       C. JUDICIAL BIAS


           Lazaro next contends that the sentencing judge was unfairly biased, pointing to the

judge' s remarks during the sentencing hearing. The appearance of fairness doctrine demands the

absence of actual or apparent bias on the part of the judge or decision -
                                                                        maker. State v. Worl, 91

Wn.    App. 88,        96, 955 P. 2d 814 ( 1998) (      citing State v. Dagenais, 47 Wn. App. 260, 261, 734 P.2d

 539 ( 1987)).         To   succeed,       Lazaro   must present evidence            of actual or potential      bias.   Worl, 91




 8                                                                                                                          As a
     Lazaro     also    had    a   third degree      assault   conviction,         which   is   a   nonviolent   offense.


 nonviolent felony offense committed as a juvenile, this conviction counted for only half a point.
 RCW 9. 94A. 525( 8).              Because offender scores are rounded down to the nearest whole number,
 the third degree assault conviction had no effect on Lazaro' s sentence. RCW 9. 94A.525.



                                                                    13
No. 44157 -8 -II



Wn.   App.    at   96; State   v.   Post, 118 Wn.2d 596, 619, 826        P. 2d 172 ( 1992). Lazaro bases his bias


claim on the following remarks:

         The fact that this was a gang involvement, well, that' s unfortunate for Mr. Lazaro.
         He made the choice to be in a gang, and he made the choice to continue
         associating in it and behaving like that.

II VRP ( Oct. 31, 2012) at 29.

         Lazaro fails to       provide evidence of actual or potential             bias. The judge' s remarks did not


reflect any personal antipathy toward Lazaro, but merely rebutted Lazaro' s argument that he
should receive a low - nd sentence because he " would have been beaten down" by his own gang
                     e

if he had     not attacked      Mora.     II VRP ( Oct. 31, 2012)       at   28.   The judge reasonably determined

that Lazaro could not claim duress as a mitigating factor when Lazaro himself had created the

duress   by    choosing to          associate   with   the gang.     Nor does the fact that Lazaro received the


maximum        sentence under         the statutory    range,   70   months,   indicate bias.   The judge noted that


there were a number of aggravating factors that would support a top of the range sentence but

that he would not impose an exceptional sentence despite the aggravating factors. Nothing in the

 sentencing judge' s conduct creates an appearance of bias, and we reject Lazaro' s claims of
judicial misconduct.


                      D. PROSECUTORIAL MISMANAGEMENT AND EVIDENCE SPOLIATION


         Lastly, Lazaro claims that the prosecution mismanaged the case and engaged in evidence
 spoliation.       The trial court has discretion to dismiss a criminal prosecution if the defendant can

 show by a preponderance of the evidence both ( 1) arbitrary action or governmental misconduct




                                                                14
No. 44157 -8 -II


                                                                                                     9
and (   2)   actual   prejudice       affected     the defendant' s   right   to   a   fair trial.       CrR 8. 3( b); State v.


Martinez, 121 Wn.         App.       21, 29, 86 P. 3d 1210 ( 2004).         CrR 8. 3( b) dismissal is an extraordinary

remedy that is " improper except in truly egregious cases of mismanagement or misconduct that

materially      prejudice      the   rights   of   the   accused."    Martinez, 121 Wn.          App.      at   30.   Where the


defendant argues that evidence was improperly destroyed, the defendant must be able to show

some     indication that the destroyed               evidence    could   have been exculpatory.                 See Arizona v.


Youngblood, 488 U. S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 ( 1988).                                  We review the trial


court' s     decision   on a   CrR 8. 3( b)      motion    to dismiss for   manifest abuse of            discretion. Martinez,


121 Wn. App. at 30.

             At the relevant time, Green Hill' s standard procedure was to destroy video surveillance

records after 90 days, even if the surveillance captured an incident referred to law enforcement

for   prosecution.       While the Chehalis Police Department received a referral about the fight in

September of 2011, the police did not refer the case to the prosecutor until January 2012, by

which time Green Hill had destroyed the surveillance video.                              While the police department' s


delay was lengthy, Lazaro fails to show that it was out of the ordinary, let alone arbitrary or
improper.       The delay could have been caused by high caseloads, rather than any wrongdoing by
the   government.        Furthermore, Lazaro cannot demonstrate prejudice because he does not show

that the      video surveillance would             have been exculpatory.      His attorney never saw the video, the

prosecutor       never    saw        the   video,    and no one could say whether the video would have

 corroborated      Lazaro'     s version of events.         Given the weight of the State' s evidence, it is at least


 as likely that the video would merely have lent further support to the State' s theory. Lazaro fails

 9 Lazaro brought a CrR 8. 3( b) motion to dismiss after the State rested; the trial court denied the
 motion.




                                                                 15
No. 44157 -8 - II



to carry his burden of proof establishing that there was arbitrary government action or

misconduct    and   that he     was   prejudiced.   Accordingly, we hold that the prosecutor did not

mismanage the case under CrR 8. 3 and that there was no evidence spoliation.


        We affirm.


        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 in accordance with RCW

2. 06. 040, it is so ordered.




                                                       16
No. 44157 -8 - II



         Melnick, J. — (        Concurrence) I      concur with         the   result   the majority   reaches.   However, I


write separately to state my disagreement with the majority' s reasoning solely on the admission
of   the 404( b)    evidence     issue.      As the majority correctly points out, a trial court' s decision to

admit    or   exclude      evidence     is   reviewed   for   an    abuse     of   discretion.   A trial court abuses its


discretion when its decision is manifestly unreasonable or based on untenable grounds or

reasons.      State   v.   Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995). "                   A trial court abuses its


discretion only if no reasonable person would adopt the view espoused by the trial court. Where

reasonable persons could take differing views regarding the propriety of the trial court's actions,

the trial   court   has    not abused   its discretion."      State v. Demery, 144 Wn.2d 753, 758, 30 P. 3d 1278

 2001) (    citations omitted).       Here, the trial court properly engaged in the four part analysis for the

admission of ER 404(b) evidence. State v. Gresham, 173 Wn.2d 405, 421, 269 P. 3d.207 ( 2012).

I cannot say that no reasonable person would have decided the issue the way the court did. I also

cannot say that the decision to admit " gang evidence" in this case was manifestly unreasonable

or   based    on untenable grounds.           I would hold that the trial court did not abuse its discretion by

admitting the " gang          evidence."       In all other respects, I concur in the majority' s opinion and

conclusion.




                                                                   17
