                                                                         FILED
                                                                        MAY 7, 2019
                                                               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. 35760-1-III
                      Respondent,            )
                                             )
       v.                                    )
                                             )
ANTHONY E. CLARK,                            )         UNPUBLISHED OPINION
                                             )
                      Appellant.             )

       KORSMO, J. — Anthony Clark appeals his convictions for fourth degree assault,

unlawful imprisonment, felony harassment, and violation of a no contact order, arguing

that the trial court erred in admitting ER 404(b) evidence and in not determining that two

convictions constituted the same criminal conduct. Mr. Clark also challenges the

imposition of the criminal filing fee in his case. We affirm the convictions, but remand to

strike the criminal filing fee.

                                         FACTS

       Laura Thomas met Mr. Clark at Spokane Falls Community College where both

were enrolled as students. They were around 18 years old when they began dating in

May 2017.
No. 35760-1-III
State v. Clark


       On June 30, 2017, Ms. Thomas went to Mr. Clark’s apartment intending to break

up with him, but she arrived later than planned. Once in the apartment, Mr. Clark’s

conduct scared Ms. Thomas, leading her to send a text message to her roommate, Laura

Stephenson, in the hopes that Ms. Stephenson would come to Mr. Clark’s apartment and

help her leave safely. Instead, Ms. Stephenson called the police and Mr. Clark was

arrested for fourth degree assault.

       On July 1, 2017, a no contact order was put into effect directing Mr. Clark to

refrain from any contact with Ms. Thomas. Despite the no contact order, the two

continued to meet and have contact between July 12 and 25. On August 15, the no

contact order was recalled by the district court at Ms. Thomas’ request.

       Shortly after rekindling their relationship, Mr. Clark started making demands of

Ms. Thomas or else he would ruin her life. Mr. Clark also began threatening to torture

and kill Ms. Thomas in a myriad of detailed ways. Ms. Thomas believed Mr. Clark to be

capable of carrying out his repeated threats because she had seen him hit walls, throw

things, and yell at other people, and she was afraid he would kill her.

       On August 27, Ms. Thomas and Mr. Clark were at his apartment when Mr. Clark

choked Ms. Thomas multiple times and pulled her hair. On August 28, Ms. Thomas saw

Mr. Clark again. This time, Mr. Clark’s mother, Francis Bean, was in the apartment. Ms.

Thomas said the door to the bedroom was shut but Mr. Clark threatened her to be quiet,

slapped her several times, punched her in the head, pinned her down so she was unable to

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No. 35760-1-III
State v. Clark


leave, bent her index finger backward, and bit her nose. Mr. Clark then choked Ms.

Thomas several times. Mr. Clark also forced Ms. Thomas’ face into a pillow. Ms.

Thomas then told Mr. Clark she wanted to leave, but he refused to allow her, and instead,

elbowed her in the sternum, and bent her right arm backwards. The next afternoon, Ms.

Thomas sought medical attention. Ms. Thomas also later confided in her colleagues and

provided a statement to police.

       On December 6, the State charged Mr. Clark with one count each of fourth degree

assault on or about June 30, 2017; violation of a domestic violence no contact order on or

about July 12, 2017; second degree assault, unlawful imprisonment, and felony

harassment, on or about between August 22, 2017 and August 28, 2017. The matter

proceeded to a jury trial.

       Mr. Clark moved in limine to prohibit the State from admitting testimony that Ms.

Thomas has observed Mr. Clark hitting walls, throwing items, or yelling at people in an

aggressive manner. The court listened to testimony from Ms. Thomas, who testified that

she saw Mr. Clark hitting and striking walls and saw him break his stereo out of anger,

which was intimidating to her. The trial court denied the motion, finding that the

probative value of the evidence outweighed its prejudicial effect.

       At trial, Ms. Thomas testified to all of these facts. Ms. Bean also testified that on

August 28, both Ms. Thomas and Mr. Clark were in the apartment with her. Ms. Bean

did not hear any strange noises, and testified the apartment has thin walls through which

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No. 35760-1-III
State v. Clark


she can hear talking and some of the neighbors’ activities. She did not hear yelling,

crying, banging, loud noises or other signs of struggle.

       The jury found Mr. Clark not guilty of second degree assault, but guilty of the

lesser included offense of fourth degree assault, and not guilty as to the fourth degree

assault on June 30. The jury also found Mr. Clark guilty of unlawful imprisonment,

felony harassment, and misdemeanor violation of a no contact order. The jury also found

by special verdicts each crime constituted domestic violence.

       At sentencing, Mr. Clark requested the court find that the harassment and unlawful

imprisonment charges constituted same criminal conduct, arguing that the two offenses

“bled together” over the course of the charging period, and that mens rea of each offense

was the same. The court determined that the two felonies were not the same criminal

conduct. The court then waived imposition of a standard range sentence, sentenced the

defendant using a first-time offender sentencing alternative, and imposed concurrent 90

day sentences on the felony convictions. The trial court found Mr. Clark indigent for

purposes of appeal.

                                        ANALYSIS

       First, we consider Mr. Clark’s challenge of the ER 404(b) evidence admitted at

trial. We then turn to his two sentencing arguments.




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No. 35760-1-III
State v. Clark


       ER 404(b)

       Mr. Clark first argues that the trial court abused its discretion in admitting

allegations that Mr. Clark struck walls, yelled at others, and threw objects in anger in the

past. We conclude that the trial court did not abuse its discretion.

       Evidence of “other bad acts” is permitted to establish specific purposes such as the

identity of an actor or the defendant’s intent or purpose in committing a crime. ER

404(b). Those purposes, in turn, must be of such significance to the current trial that the

evidence is highly probative and relevant to prove an “essential ingredient” of the current

crime. State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Evidence admitted

under ER 404(b) is considered substantive evidence rather than impeachment evidence.

State v. Laureano, 101 Wn.2d 745, 766, 682 P.2d 889 (1984), overruled in part by State

v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989); State v. Wilson, 60 Wn.

App. 887, 891, 808 P.2d 754 (1991).

       The decision to admit evidence of other bad acts under ER 404(b), as with most

evidentiary rulings, is a matter within the discretion of the trial court. State v.

DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003); Lough, 125 Wn.2d at 863.

Discretion is abused if it is exercised on untenable grounds or for untenable reasons.

State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Before admitting

evidence of bad acts, the trial court is required to “(1) find by a preponderance of the

evidence that the misconduct occurred, (2) identify the purpose for which the evidence is

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No. 35760-1-III
State v. Clark


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. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012); see also State v.

Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008 (2006).1 It must conduct this analysis on

the record. State v. Sublett, 156 Wn. App. 160, 195, 231 P.3d 231 (2010), aff’d, 176

Wn.2d 58, 292 P.3d 715 (2012). Error in admitting evidence under ER 404(b) is not of

constitutional magnitude and is subject to harmless error analysis. State v. Stenson, 132

Wn.2d 668, 709, 940 P.2d 1239 (1997).

       Here, the record supports the trial court’s admission of the ER 404(b) evidence

under the four relevant factors. First, reliable evidence established that the prior act

occurred. According to the State’s pretrial offer of proof, Ms. Thomas was able to

describe Mr. Clark’s prior violent actions. This was sufficient for the State to meet its

factual burden. State v. Kilgore, 147 Wn.2d 288, 294-295, 53 P.3d 974 (2002). Second,

the evidence of the prior acts was relevant to prove Ms. Thomas reasonably feared Mr.

Clark’s threats. Nelson, 131 Wn. App. at 116; State v. Barragan, 102 Wn. App. 754,

759, 9 P.3d 942 (2000). Third, the reasonableness of Ms. Thomas’ fear bore on the

elements of the charged crime of felony harassment. Id.; RCW 9A.46.020(1). Finally,



       1
       In Nelson, evidence of the defendant’s previous violent and abusive behavior
was admitted for the purpose of showing the victim was afraid of him. 131 Wn. App. at
116.

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No. 35760-1-III
State v. Clark


the prior act evidence was not overly prejudicial. The trial court permitted introduction

of a limited description of Mr. Clark’s violent behavior. This evidence was brief and was

limited to Ms. Thomas’ testimony.

       Given all four of the elements to admissibility under ER 404(b) were satisfied, the

trial court did not abuse its discretion in permitting the State to introduce evidence of Mr.

Clark’s prior violent behaviors.

       Same Criminal Conduct

       Next, Mr. Clark argues that the trial court erred in finding the convictions for

unlawful imprisonment and harassment were not the same criminal conduct. We

conclude that the trial court did not abuse its discretion.

       An appellate court reviews a trial court’s determination of what constitutes the same

criminal conduct for abuse of discretion or misapplication of the law. State v. Graciano,

176 Wn.2d 531, 537, 295 P.3d 219 (2013). A trial court abuses its discretion if it makes a

manifestly unreasonable decision based on untenable grounds or for untenable reasons.

Junker, 79 Wn.2d at 26.

       When sentencing a person for multiple current offenses, the sentencing court

determines the offender score by considering all other current and prior convictions as if

they were prior convictions. RCW 9.94A.589(1)(a). However, if the sentencing court

finds that some or all of the current offenses encompass the same criminal conduct, then

those offenses may only be counted as one single crime. Id.

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No. 35760-1-III
State v. Clark


       Two crimes manifest the “same criminal conduct” only if they “require the same

criminal intent, are committed at the same time and place, and involve the same victim.”

Id. Deciding whether crimes involve the same time, place, and victim often involves

determinations of fact. Graciano, 176 Wn.2d at 536. “In keeping with this fact-based

inquiry, we have repeatedly observed that a court’s determination of same criminal

conduct will not be disturbed unless the sentencing court abuses its discretion or

misapplies the law.” Id. As part of this analysis, courts also look to whether one crime

furthered another. State v. Dunaway, 109 Wn.2d 207, 215, 743 P.2d 1237, 749 P.2d 160

(1987).

       When considering if crimes encompass the same criminal intent, courts focus on

the extent to which the criminal intent, viewed objectively, changed from one crime to

the next. Id. “This analysis may include, but is not limited to, the extent to which one

crime furthered the other, whether they were part of the same scheme or plan and whether

the criminal objectives changed.” State v. Calvert, 79 Wn. App. 569, 578, 903 P.2d 1003

(1995). Crimes may involve the same intent if they were part of a continuous transaction

or involved a single, uninterrupted criminal episode. State v. Deharo, 136 Wn.2d 856,

858-859, 966 P.2d 1269 (1998). Crimes do not, however, involve the same intent when

there are “sequential” instead of “simultaneous or continuous” events. State v. Tili, 139

Wn.2d 107, 124, 985 P.2d 365 (1999). This court once explained:



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No. 35760-1-III
State v. Clark


       Intent, in this context, is not the particular mens rea element of the particular
       crime, but rather is the offender’s objective criminal purpose in committing
       the crime. Thus, for example, the intent of robbery is to acquire property,
       and the intent of attempted murder is to kill someone. Part of this inquiry is
       determining whether one crime furthered the other.

State v. Adame, 56 Wn. App. 803, 811, 785 P.2d 1144 (1990) (internal citations omitted).

       There is no dispute that Mr. Clark’s convictions for unlawful imprisonment and

felony harassment involved the same victim. Although both crimes were charged over

the same week long time period, Ms. Thomas’ testimony limited the potential unlawful

imprisonment to Mr. Clark’s apartment, whereas the evidence indicates that the threats

and harassment occurred continuously and repeatedly over the course of the charging

period and were not limited in time, place, or mode of communication.

       The two crimes also did not share the same objective criminal intent. Mr. Clark

did not threaten to kill Ms. Thomas for the purpose of furthering his unlawful restraint of

her. Mr. Clark’s objectives also changed from one offense to the next. He threatened to

kill Ms. Thomas in order to keep her in the relationship and further his attempts to

dismiss the June 30 assault charge. Only when these threats failed to have the intended

effect did he unlawfully restrain her in his apartment. Because the evidence supported a

finding that the unlawful imprisonment and harassment convictions did not comprise the

same criminal conduct, the trial court did not abuse its discretion.




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No. 35760-1-III
State v. Clark


       Criminal Filing Fee

       A decision released after the sentencing in this case determined that statutory

changes to legal financial obligation assessments apply retroactively to cases on appeal.

State v. Ramirez, 191 Wn.2d 732,735,426 P.3d 714 (2018). As a result, indigent

offenders need not pay the criminal filing fee. Since Mr. Clark is indigent, we direct that

the trial court strike that assessment.

        He also asks that we disallow costs on appeal due to his indigency. By the terms

of RAP 14.2 and our General Order of February 19,2019, we leave that issue to our

commissioner in the event that the State seeks costs in this court.

       The convictions are affirmed,but remanded to the trial court for further

proceedings.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports,but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



                                            <2                  Q
                                                         Pennell, J.



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