      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                     No. 74107-1-1

                            Respondent,                  DIVISION ONE

             V.

JAVIER ALEJANDRO MACIAS-CAMPOS,                          UNPUBLISHED

                            Appellant.                   FILED: April 17, 2017



       Cox, J. — Javier Macias-Campos appeals his judgment and sentence. We

hold that the trial court did not abuse its discretion in admitting testimony

concerning Macias-Campos's previous acts of domestic violence. Such

testimony was relevant to essential elements of the charged crimes and was not

unduly prejudicial. Accordingly, we affirm.

       In 2014, Macias-Campos and M.O. became friends and lived together

temporarily, along with Macias-Campos's girlfriend R. Eventually M.O. decided

to leave.

        Later that year, Macias-Campos and M.O. reconciled and returned to

living together. They also became intimate. But Macias-Campos began to

abuse M.O. He became controlling and jealous. When M.O. attempted to reach

out to a friend, Macias-Campos responded by hitting her and then having sex

with her against her wishes. M.O. escaped for a time and then returned. Around

this time, Macias-Campos told M.O. about how he had restrained R. during their
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relationship. He explained how he had violently hit her in the head with a gun

and tied her up in the trunk of his car while he drove around.

       In early 2015, Macias-Campos and M.O. booked a room at the Hillside

Motel on Aurora Avenue. M.O. managed to send a Facebook message to her

mother explaining that she felt she could not leave and that she was scared.

       But Macias-Campos became enraged when he found out that M.O. was

communicating with her mother and a friend. He told her she could not leave the

motel room. She retreated to the bathroom but he followed, accusing her of

cheating with a former boyfriend. He began hitting her. He threatened her with a

screwdriver and a knife. He said he would "do what the cartel does with

girlfriends who cheat." And he tied her hands behind her back with a twisted coat

hanger.

       Eventually he relented and M.O. furtively contacted her mother to alert the

motel staff. Police were notified and, responding, arrested Macias-Campos. The

State charged Macias-Campos with felony harassment and unlawful

imprisonment, amongst other crimes, each with a domestic violence aggravator.

       Pretrial, Macias-Campos moved to exclude evidence of his prior

misconduct under ER 404(b). It later appeared that such evidence concerned

M.O.'s testimony about what Macias-Campos had told her of how he treated R.

The trial court declined to exclude such evidence but later provided a limiting

instruction. It explained that it admitted the challenged testimony for the limited

purpose of showing that M.O. could reasonably fear that Macias-Campos would




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act on his threats and that he could intimidate M.O. into remaining constrained in

the bathroom against her will.

       The jury found Macias-Campos guilty of fourth degree assault, felony

harassment, unlawful imprisonment, and witness tampering. The jury also found

these crimes occurred in a domestic relationship. The trial court entered its

judgment and sentence in accordance with the jury's verdict.

       Macias-Campos appeals.

                             PRIOR ACTS EVIDENCE

       Macias-Campos argues that the trial court abused its discretion in

admitting evidence under ER 404(b) of his alleged past acts of domestic violence

against R. We disagree.

       ER 404(b) provides:

       Evidence of other crimes, wrongs, or acts is not admissible to prove
       the character of a person in order to show action in conformity
       therewith. It may, however, be admissible for other purposes, such
       as proof of motive, opportunity, intent, preparation, plan,
       knowledge, identity, or absence of mistake or accident.

       Thus, the rule bars admission of certain evidence when used to prove

character but not when used to prove a proper purpose. In order to determine

whether evidence is admissible in a particular instance, the trial court conducts a

four part test.

       It 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




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      prove an element of the crime charged, and (4) weigh the probative
      value against the prejudicial effect.[1]

      The proponent of the evidence has the burden to prove the first three

elements.2 We review for an abuse of discretion the trial court's decision to admit

or exclude evidence under such a rule.3 The appellant bears the burden of

proving an abuse of discretion.4

       Regarding the first element, Macias-Campos does not contest whether his

misconduct towards R. occurred or whether M.O. believed it had. Thus, this

element is undisputed.

       But regarding the second element, the parties dispute the purpose for

which the evidence was proffered. Macias-Campos argues that the trial court

"likely" admitted the contested evidence in order to allow the impeachment of

M.O. But the State argues that the evidence was admitted because it went to

elements of the charged crimes. Specifically, the State contends that it was

necessary to show M.O. reasonably feared Macias-Campos in order to prove she

was restrained, and that it was necessary to prove an element of the felony

harassment charge.

       Here, the court explained its reasoning for admitting the challenged

testimony and gave a limiting instruction consistent with this purpose.

Specifically, it explained that the jury could consider the testimony for "the limited

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

       2 State   v. Ashley, 186 Wn.2d 32, 39, 375 P.3d 673(2016).

       3   Id. at 38-39.

       4   Id. at 39.


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assessment of whether or not[M.O.'s] purported fear of the defendant was

reasonable and whether or not she felt free to leave, with regard to the unlawful

imprisonment, but not for any other purpose." After M.O. testified, the trial court

provided a limiting instruction. It explained:

               Alleged past behavior by Mr. Macias-Campos toward this
       witness is admissible only for two purposes: Purpose number one
       is to assess whether or not there was a reasonable basis for this
       witness to be in reasonable fear with regard to any alleged threats
       that were made to her on the date charged, and the other purpose
       for which you can consider this testimony is whether or not the
       alleged restraint of her on the date alleged was accomplished by
       intimidation in some way. All right? Not for any other purpose.[6]

       Jury Instruction 7 is substantively identical to this oral instruction.

       Thus, the record indicates that the court admitted the challenged

testimony to show whether there was a reasonable basis for M.O.'s fear of

Macias-Campos's threat, and whether Macias-Campos restrained her by

intimidation. Contrary to Macias-Campos's argument, it was not admitted to

impeach or bolster M.O.'s credibility.

       The third element requires the trial court to determine whether the

evidence is relevant to prove an element of the crime charged. 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."6




       5   Report of Proceedings (August 6, 2015) at 71.

       6   ER 401.


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       Evidence of past domestic violence is probative of a victim's state of

mind.7 The supreme court has specifically found evidence of a defendant's past

bad acts against a victim relevant "highly probative" to show restraint by

intimidation.8 And this court has held admissible evidence of past acts directed

against a third party if "necessary to put the threats [against the victim] in

context."9

       Here, Macias-Campos does not appear to contest the relevance of this

evidence. And the elements of the charged crimes demonstrates the relevance

of the testimony.

       To prove unlawful imprisonment, the State must show that the defendant

"knowingly restrain[ed] another person."1° RCW 9A.40.010(6) defines restraint

as the restriction of "a person's movements without consent and without legal

authority in a manner which interferes substantially with his or her liberty.

Restraint is 'without consent' if it is accomplished by (a) physical force,

intimidation, or deception. . . ."

       The felony harassment statute requires the State to prove the defendant

threatened the victim and, in so doing, "place[d] the person threatened in

reasonable fear that the threat will be carried out."11


       7 State   v. Fisher, 165 Wn.2d 727, 744-45, 202 P.3d 937 (2009).

       8 Ashley, 186   Wn.2d at 48.

       9 State   v. Raqin, 94 Wn. App. 407, 412, 972 P.2d 519 (1999).
       10 RCW 9A.40.040(1).

       11 RCW 9A.46.020(b).


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       Here, the testimony was probative of the elements in these charging

statutes. As discussed above, the trial court admitted the testimony to show that

any restraint was nonconsensual because Macias-Campos accomplished it by

intimidating M.O. The testimony was also admitted to show the reasonableness

of M.O.'s fear in regard to the threats Macias-Campos made. As such, the

testimony was relevant to proof of both of these crimes.

       The fourth element requires that the trial court weigh the probative value

against the prejudicial effect. Macias-Campos argues that the trial court abused

its discretion in admitting the challenged testimony because its prejudicial effect

outweighed its probative value. Not so.

       We remain mindful that "'courts must be careful and methodical in

weighing the probative value against the prejudicial effect of prior acts in

domestic violence cases because the risk of unfair prejudice is very high.'"12

These acute concerns require the State to prove the "overriding probative value"

of the challenged evidence.13

       State v. Ashley14 is instructive. Baron Ashley and Makayla Gamble had

dated for several years.15 During this time, Ashley had violently abused




       12   State v. Gunderson, 181 Wn.2d 916, 925, 337 P.3d 1090 (2014).

       13   Id.

       14   186 Wn.2d 32, 375 P.3d 673(2016).

       15   Id. at 35.


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Gamble.16 Eventually the two separated and, for several years following, they

saw each other sporadically.17

      Sometime later, police went to arrest Ashley and his sister for robbery and

motor vehicle theft.16 When they did so, Ashley, his sister, and Gamble were at

the sister's home.16 The police left, returning a few days later.2° They knocked

on the door but no one answered.21 After obtaining a key, police entered the

house.22 They met Gamble in the living room.23

      They asked her if Ashley was inside and she told them he was upstairs.24

After arresting him, police asked Gamble why she had "helped Ashley hide."25

She explained that Ashley had detained her in the bathroom and only allowed

her to leave once police entered the home.26




       16   1d. at 40.

       17 Id. at 35.
       18   id.

       19   Id.

       2° Id.

       21   Id.

       22   Id.

       23   Id.

       24   Id.

       26   Id.

       26   Id.


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      The State charged Ashley with unlawful imprisonment with domestic

violence.27 It moved pretrial to introduce evidence of Ashley's earlier domestic

violence against Gamble in order to show that Ashley had intimidated Gamble

into remaining constrained to the bathroom.28 The trial court granted that

motion.29

       On review, the supreme court affirmed the admission, explaining that it

was reasonable to conclude "that Gamble, whom Ashley allegedly abused

numerous times over an eight-year period, could continue to fear or be

intimidated into obeying Ashley years after the most recent incident."30 As such,

the trial court had properly found that the State proved the "overriding probative

value of this evidence because the evidence went directly to a necessary

element of the crime."31 The evidence was vital to help the jury assess whether

Ashley restrained Gamble by intimidation.32 It showed that Gamble's response

"was not inexplicable, not unreasonable, and that she was [held] without

consent."33




       27   Id.
       28   id.

       29   Id.

       39   Id. at 45.

       31   Id.

       32   Id.

       33   Id. at 46-47.


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       Here, the State had to prove, for the felony harassment charge, that M.O.

could reasonably fear that Macias-Campos would carry out his threats. And it

had to prove, for the unlawful imprisonment charge, that M.O. did not consent to

her restraint, perhaps out of intimidation. For both, it had to show the reasonable

basis for M.O.'s fear.

       Thus, it offered evidence that M.O. knew Macias-Campos had committed

previous acts of domestic violence against R. This evidence "went directly to a

necessary element of the crime[s]."34 It explained M.O.'s actions and put them in

appropriate context. As in Ashley, such evidence had the "overriding probative

value" to support its admission, even in the sensitive context of a domestic

violence tria1.35 Thus, the trial court did not abuse its discretion in admitting the

challenged testimony.

       But Macias-Campos argues that the supreme court's decision in State v.

Gunderson36 bars admission. This argument is unpersuasive.

       In that case, the State brought a domestic violence charge against Daniel

Gunderson.37 At trial, one of the alleged victims, Christina Moore, testified that

no such incident took place.35 The State, in response, offered evidence of

Gunderson's two prior acts of domestic violence against Moore in order to


       34   1d. at 45.
       35   Id. at 48.

       36   181 Wn.2d 916, 925, 337 P.3d 1090 (2014).

       37   Id. at 918.

       38   Id. at 920.


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No. 74107-1-1/11


impeach her testimony.39 The court concluded that the evidence was sufficiently

relevant to Moore's credibility and admitted it.49

       The supreme court reversed, holding that prior act evidence was not

admissible to impeach a victim's credibility when the victim had "neither

recant[ed] nor contradict[ed] prior statements."41 Admitting such evidence

outside those circumstances was an abuse of discretion.42

       Here, Gunderson is not on point. As discussed above, the State offered,

and the trial court admitted, the challenged testimony to show necessary and

essential elements of the charged crimes. It was not admitted to bolster or

impeach credibility. Thus, Gunderson and Macias-Campos's argument that M.O.

had not recanted her testimony are irrelevant to this determination. Ashley and

similar cited cases control.

       We affirm the judgment and sentence.




WE CONCUR:




       39   Id. at 920-21.

       40 Id. at 921.

       41   Id. at 925.

       42   Id.


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