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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                   S          ^S
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STATE OF WASHINGTON,                              No. 68074-9-1                            UD
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LONG PHUC TRAN,                                   UNPUBLISHED OPINION
a/k/a HUNG PHI DINH,
                                                  FILED: April 29, 2013
              Appellant.


       Verellen, J. — Long Phuc Tran appeals his convictions for second degree theft,

theft of a motor vehicle, and telephone harassment. The victim of the motor vehicle

theft and harassment charges was his wife, Lan Phan. He contends the trial court

abused its discretion in admitting testimony under ER 404(b) that Tran had abused

Phan's children for the purpose of showing the reasonable fear element of felony

harassment, i.e., that Phan reasonably believed Tran would carry out his threat.

       The trial court properly admitted the testimony. It demonstrated Phan had seen

Tran's violent acts towards her children and was therefore logically related to whether

Phan's fear of Tran's threats was reasonable. The trial court gave the required limiting

instruction to the jury, stating the evidence of Tran's treatment of the children could only

be considered for the purpose of determining whether Phan's fear was reasonable. We

affirm Tran's convictions.
No. 68074-9-1/2



                                          FACTS

       The facts as they are relevant to Tran's appeal involve a series of interactions

between Tran and his wife, Lan Phan. Phan and Tran have two children together.

Phan also has six other children, who are older than her children with Tran. Tran and

Phan were in a relationship from early 2002 until March 2011. In the course of their

relationship, Tran did not physically abuse Phan, but was verbally abusive toward her.

Phan moved out of Tran's house in September 2009. Phan would not tell Tran her new

address.

       Phan works nights as a janitor on the Microsoft campus in Redmond. On April 7,

2011, Phan received three calls from a woman who requested Phan's address and told

her Tran was in the hospital. Phan refused to provide her address. Later that day,

Phan drove to work and parked in one of the Microsoft campus garages. When Phan

returned to her car for her break at approximately 10:00 p.m., her car was gone. Video

surveillance showed a male suspect enter the garage around 7:00 p.m. and Phan's car

leaving approximately 10 minutes later.

       Phan suspected that Tran had stolen her car. Shortly after the car was stolen,

Phan received a series of voice messages on her cell phone from Tran. In one

message, Tran threatened to turn the van into a "piece of junk" that would "never start

again."1 In other messages, Tran also threatened Phan, stating "I'll kill you right away,"
and "I'll cut your throat wherever Isee you."2 He also threatened that he would find her



       1Report of Proceedings (Oct. 26, 2011) at 16.
      2 Id. at 14.
No. 68074-9-1/3



at work, stating "I'll kill you at work. I'm going there now. Iwait for you there."3 Phan
contacted the police after receiving the message.

       On April 11, 2011, the State charged Tran with theft in the second degree (count

1, victim Marius Sutara), theft of a motor vehicle (count 2, victim Lan Phan), felony

harassment (count 3, victim Lan Phan), telephone harassment (count 4, victim Lan

Phan), burglary in the second degree (count 5, victim Neil Ing/Aurora Auto Repair), and

theft of a motor vehicle (count 6, victim Berhane Abraha).4 The court granted Tran's
motion to sever counts 5 and 6. After a trial on counts 1 through 4, the jury convicted

Tran of second degree theft, theft of a motor vehicle, and telephone harassment. The

jury acquitted Tran offelony harassment.5
       During trial, Phan testified about two specific instances in which Tran abused

some of her children. Phan testified that Tran made one of her older daughters kneel

on the floor and hold five video cassettes in each hand, slapped the child on the head,

and kicked her. Phan also testified that Tran made two of Phan's younger children

kneel and hold video cassettes in their hands while he hit the bottoms of their feet with a

stick. Phan's 19-year-old daughter, Hang Phan,6 witnessed both events as well. Hang




       3id at 16.
       4Although Tran was charged with various crimes against various victims, we set
forth only the facts and testimony relating to Tran's actions toward his wife, as the other
actions are not material to this appeal.
       5Tran then entered an Alford plea to counts 5 and 6. The trial court imposed a
standard range sentence on all counts.
      6We will refer to Phan's daughter by herfirst name.
No. 68074-9-1/4



testified at trial about these events, giving descriptions consistent with her mother's.

       The State had moved in limine to allow Phan to testify about Tran's abuse of her

children. Tran objected, arguing the evidence was not relevant to Phan's reasonable

fear that he would carry out the threats. The court ruled on the record that the events

had occurred by a preponderance of the evidence, and that they were relevant to

Phan's reasonable fear of Tran's threats. The court also allowed Hang to give her

testimony, over Tran's objection. The court reasoned that Hang's testimony

corroborated her mother's reasonable fear that Tran would carry out the threats. The

court gave a limiting instruction each time Phan and Hang testified about Tran's

treatment of the children.

       When Tran testified at trial, he admitted he had treated the children in the

manner that Phan and Hang had described, but testified this was how he was punished

by his parents when he was young. Tran also testified that his threats to Phan were not

serious, and that he just spoke to Phan that way when he was angry.

      Tran appeals.

                                       DISCUSSION

      Tran argues the trial court abused its discretion in admitting testimony about his

prior misconduct in the form of testimony by Phan and Hang about Tran's treatment of

Phan's children. We review a trial court's ruling on the admissibility of evidence for an

abuse ofdiscretion.7 Atrial court abuses its discretion if it acts on untenable grounds or




      7State v. Maaers. 164Wn.2d 174, 181, 189P.3d 126(2008).
No. 68074-9-1/5



for untenable reasons.8 "Failure to adhere to the requirements of an evidentiary rule
can be considered an abuse of discretion."9

       Evidence Rule 404(b) prevents 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." Before admitting ER 404(b) evidence, a trial court must engage in the

following analysis on the record: "'(1) find by a preponderance of the evidence that the

misconduct occurred, (2) identify the purpose for which the evidence is sought to be

introduced, (3) determine whether the evidence is relevant to prove an element of the

crime charged, and (4) weigh the probative value against the prejudicial effect.'"10 If the
evidence is admitted, the trial court must give a limiting instruction to the jury.11
       The State's burden on the felony harassment charge was to demonstrate Tran

had threatened to kill Phan, and Tran had "by words or conduct place[d] the person

threatened in reasonable fear that the threat [would] be carried out."12 Tran specifically
contends the testimony was not relevant to whether Phan reasonably feared Tran would

act on his threat to kill her, and that testimony on the same abuse from both Phan and

Hang was unfairly prejudicial.13




       8State v. Fualaau, 155Wn.App. 347, 356. 228 P.3d 771. review denied. 169
Wn.2d 1023, 238 P.3d 503 (2010).
       9State v. Foxhoven. 161 Wn.2d 168, 174, 163 P.3d 786 (2007).
       10 Id at 175 (quoting State v. Thanq. 145Wn.2d 630, 642, 41 P.3d 1159 (2002)).
       1l]d
       12 RCW 9A.46.020(1)(a), 1(b), 2(b).
       13 Tran does not assert the trial court erred in the other parts of the analysis. See
Appellant's Br. at 12-16.
No. 68074-9-1/6



       When a defendant is charged with felony harassment, evidence of prior violent

acts or threats may be admitted to show the victim's fear of the defendant was

reasonable.14 In State v. Barragan, the court allowed testimony under ER 404(b) of
statements the defendant had made to the victim about the defendant's violent conflicts


with his fellow inmates because the testimony was relevant to the reasonable fear

element of harassment.15 Similarly, in State v. Raqin, the victim was allowed to testify
about the defendant's statements that he had been convicted of armed robbery and was

involved in a "domestic violence situation" because the victim's knowledge of the

defendant's prior violent acts was relevant to the reasonable fear element of felony

harassment.16

       Tran contends that Barragan and Ragin are distinguishable because his

treatment of Phan's children was not "similar in nature" to his threat to kill Tran.17 The

case law does not support the requirement that prior bad acts be similar in nature to the

crime charged. The trial court reasoned that Tran's use of violence against Phan's

children was relevant to whether Phan believed Tran would carry out his threat, an

element of felony harassment. The trial court exercised sound discretion in determining

Phan's and Hang's testimony was admissible.

       Tran also contends that allowing the jury to hear the testimony of both Phan and

Hang on the same prior bad acts was unduly prejudicial. The trial court acknowledged


       14 State v. Binkin. 79 Wn. App. 284, 292-93, 902 P.2d 673 (1995), overruled on
other grounds bv State v. Kiloore. 147 Wn.2d 288, 53 P.3d 974 (2002).
       15 102Wn. App. 754, 758, 9 P.3d 942 (2000).
       16 94 Wn. App. 407, 411-12, 972 P.2d 519 (1999).
       17 Appellant's Br. at 14-15.
No. 68074-9-1/7



the testimony was cumulative, but not needlessly so because Hang's testimony

corroborated Phan's and was, like Phan's, relevant to the reasonable fear element of

felony harassment. Further, as the State argues, even if any error occurred, the error

was harmless. A victim's reasonable fear is an element of felony harassment, and the

jury acquitted Tran ofthe charge.18 Because the jury was instructed to only consider
the ER 404(b) evidence as it related to Phan's reasonable fear, we presume the jury did

not consider the ER 404(b) evidence in convicting Tran ofthe other crimes.19
      The trial court exercised sound discretion in admitting the ER 404(b) evidence.

We affirm Tran's convictions.




WE CONCUR:




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      18 A victim's reasonable fear is not an element oftelephone harassment.
RCW 9.61.230(1).
      19 Juries are presumed to follow the trial court's instructions. State v. Stein, 144
Wn.2d 236, 247, 27 P.3d 184 (2001).
