 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 71559-3-1
                    Respondent,                                                          "52
                                                DIVISION ONE                       CD

             v.
                                                UNPUBLISHED OPINION             CO      .,.- 3> „
SCOTTYE LEON MILLER, a.k.a.
SCOTTYE MILLER MILLER,

                    Appellant.                  FILED: October 3, 2016         ^

      Trickey, A.C.J. — Scottye Miller appeals his conviction and exceptional

sentence for first degree murder. He argues that the trial court erred by admitting

hearsay testimony to establish the victim's state of mind, which Miller claims was

irrelevant. Because Miller's account of the victim's conduct put her state of mind

at issue, we disagree. But we agree with Miller that the trial court improperly

admitted hearsay statements describing Miller's conduct. Nevertheless, we affirm

Miller's conviction because any evidentiary errors were harmless. And, we affirm

the trial court's imposition of an exceptional sentence on the basis that Miller

committed the offense shortly after being released from incarceration.

                                      FACTS

       Miller and Tricia Patricelli dated for about four years. Miller was abusive

throughout the relationship. In October 2012, Miller came to stay with Patricelli
and her daughters. Patricelli and Miller's mutual friend, Rayford "June" Varnado,
also lived there temporarily and slept on her couch.

       On October 27, 2012, after an argument the night before, Patricelli texted

Miller and told him not to stay with her. The next day Miller texted his mother that
No. 71559-3-1/2


he was going to kill Patricelli.

       On October 29, 2012, without Patricelli's knowledge, Miller slept in a closet

on Patricelli's balcony. Miller sent Patricelli threatening text messages. He texted

Varnado that he was going to kill Patricelli and asked if Varnado would help him.

Miller repeatedly called and texted Varnado between 2:00 a.m. and 7:00 a.m.,

insisting that he unlock the door to Patricelli's apartment.

       That morning, Patricelli dropped her children off at her mother's house but
returned home before going to work. Miller was at her apartment when she

returned.

        Miller stabbed Patricelli with a knife more than 30 times. Patricelli died from

the wounds.

        Later that morning, the police arrested Miller. Miller eventually admitted to
stabbing her. He claimed he had not meant to kill her.
        He was charged with murder in the first degree with enhancements for
committing the crime with a deadly weapon and committing a crime of domestic
violence. The State notified Miller that it would seek an exceptional sentence

because the crimes were committed under aggravating circumstances. They
alleged that the crime was an aggravated domestic violence offense and that Miller
committed it shortly after being released from incarceration.
        The case proceeded to a bifurcated jury trial. Several witnesses testified
 that Patricelli had told them she was afraid of Miller. The jury convicted Miller of

 first degree murder.

        After that verdict, the trial for the two aggravating circumstances began.
No. 71559-3-1/3


The State introduced evidence that Miller had been released from incarceration

just 15 days before he murdered Patricelli. The State also showed that Miller had
many domestic violence convictions for abusing Patricelli and his former spouse.

       The jury found that both aggravating circumstances were proved beyond a
reasonable doubt. Based on those aggravating factors, the trial court imposed an

exceptional sentence of 600 months. Miller appeals.

                                     ANALYSIS

                         State of Mind Hearsay Exception

       Miller argues that the trial court abused its discretion when it admitted
Patricelli's out-of-court statements, often describing Miller's conduct, to establish

Patricelli's state ofmind. Specifically, Miller contends that Patricelli's state ofmind
was not relevant. We conclude that Miller's descriptions of Patricelli's conductthe
morning of the murder made her hearsay statements relevant, but that it was error
to admit the statements that described Miller's actions.

       As an initial matter, the State claims that Miller failed to preserve this issue
below. We disagree. Miller objected to the introduction of Patricelli's declarations
on the grounds that they were hearsay at trial, and now objects on the grounds
that they are irrelevant. To preserve an evidentiary issue for appeal, a party must
 object on the same grounds at trial. State v. Gulov. 104 Wn.2d 412, 422, 705 P.2d
 1182 (1985). But the relevance of evidence offered under the state of mind
 exception to the prohibition of hearsay evidence is essential to its admissibility.
         In State v. Parr, the defendant objected to the admission of state of mind
 evidence on the grounds of hearsay. 93 Wn.2d 95, 98, 606 P.2d 263 (1980). The
No. 71559-3-1/4


court held that a person's out-of-court statements were admissible as an exception

to the hearsay rule when the person's state of mind "is in question" and there is

some need for the evidence. Parr, 93 Wn.2d at 98-99. Accordingly, unless the

evidence is relevant, it is not admissible to show state of mind. We conclude that

objections on the grounds of hearsay were sufficient to preserve the issue.
       Hearsay, or an out-of-court statement admitted to prove the truth of the
matter asserted, is generally inadmissible. ER 801(c), 802. But there is an
exception to that rule for statements that establish the declarant's state of mind.
ER 803(a)(3). The statements are admissible only when there is "some degree of
necessity to use out-of-court, uncross-examined declarations," and "circumstantial
probability of... trustworthiness." Parr, 93 Wn.2d at98-99. We review evidentiary
rulings for an abuse of discretion. State v. Ohlson, 162 Wn.2d 1, 7-8, 168 P.3d
1273 (2007). A trial court abuses its discretion if the decision is manifestly
unreasonable or based on untenable grounds. State v. Thurlbv, 184 Wn.2d 618,

624, 359 P.3d 793 (2015).

         In homicide cases, an accused's defense, such as accident or self-
defense, can place the decedent's state of mind at issue. Parr, 93 Wn.2d at 103.
Still, even when the deceased's state of mind is relevant, "testimony which
describes conduct or words of the defendant" is not admissible under this

 exception. Parr, 93 Wn.2d at 104.
        In Parr, the victim's brother testified that the victim had told him she feared
 the defendant and that the defendant had threatened her. 93 Wn.2d at 98. The
 court determined that the victim's fear of the defendant was relevant to rebut the
No. 71559-3-1/5


defendant's claim that the victim had reached for a gun while they argued. Parr.

93 Wn.2d at 106. The court acknowledged that the probative value was slight but

that it "was within the province of the jury to determine what inference should be

drawn from [the] evidence." Parr, 93 Wn.2d at 106-07. But the court held it was

error to admit the testimony about the threats the defendant made against the

victim. Parr. 93 Wn.2d at 104. In State v. Athan, the defendant claimed he had

consensual sex with the victim the night she died. 160 Wn.2d 354, 378-79, 158

P.3d 27 (2007). The court admitted evidence that the victim had said she was not

romantically interested in the defendant to counter that claim. Athan. 160 Wn.2d

at 381.

          Here, Miller placed Patricelli's state of mind at issue by claiming that she
had gotten into an argument with him and provoked him the morning of her death.
Miller testified that when Patricelli saw him in the bedroom, she asked him "what

the hell [he was] doing there."1 When he told her he was going to take a shower
and then leave, she ordered him to leave right away, and they got into an
argument. He claimed that she was walking toward him when they were arguing
and pushed him out of the way. While they continued to argue, she went into the
bathroom, leaving Miller in the bedroom.

          Patricelli's fear of Miller is relevant to their interactions that morning. It may

have helped the jury evaluate how Patricelli would have responded upon
unexpectedly finding Miller in her home, including whether it is likely that she would
have gotten into an argument with him or initiated a physical confrontation.


1Report of Proceedings (RP) (Dec. 11, 2013) at 147.
                                              5
No. 71559-3-1/6


       Most of the testimony Miller argues was erroneously admitted falls within

the state of mind hearsay exception. It shows Patricelli's fear of Miller but does

not incorporate or describe any of Miller's conduct. Thus, the trial court did not

abuse its discretion by admitting any of the following testimony.

       First, a police officer testified about his interaction with Patricelli when he

responded to a 911 call she had made. He described her as nervous and scared.
He testified about her repeated request that he not let Miller know that she had

called the police.

       Second, Varnado testified that, the night before the murder, Patricelli

received a text message or call from Miller about another man, named Nate.
Based on the fact that Miller knew the man's name was Nate, Patricelli was

concerned that Miller might be around the house. Varnado testified that Patricelli
seemed scared by the possibility that Miller was nearby and started "checking all
of the windows and the doors."2 The only conduct by Miller described in this
interaction was his text message to Patricelli. That text message was admitted
separately. Varnado's other testimony describes Patricelli's fears.
       Third, Patricelli's coworker testified that she sometimes accompanied
Patricelli home and helped her check her apartment to make sure that Miller was
 not hiding inside. The court carefully instructed the State not to have the coworker
 say or imply that Patricelli had told her that Miller had hidden in her apartment
 before.

           Finally, Patricelli's daughter also testified that her mother had told her that


 2RP(Dec. 2, 2013) at 22.
                                              6
No. 71559-3-1/7


she was "nervous and that she was kind of relieved" about Miller coming home.3

       The other hearsay statements the trial court admitted describe Miller's

behavior. The night before she died, Patricelli texted Miller to complain about him

"stalking, harassing and threatening" her.4 Patricelli's coworker also testified that

she had seen threatening letters that Miller wrote to Patricelli, and that Patricelli

had told her that the letters scared her.        Patricelli's daughter testified that her

mother had told her she was afraid of Miller after he climbed onto their balcony.

Because these statements incorporate Miller's conduct, the trial court erred by

admitting them.

       The State argues that, because all of Miller's conduct was admitted under
ER 404(b), the statements describing that conduct are admissible. We reject this
argument for two reasons. First, the fact that Miller's conduct is admissible does
not mean that all evidence establishing that conduct is admissible. ER 404(b) is

not an exception to the hearsay rule. State v. Powell, 126 Wn.2d 244, 265-66, 893
P.2d 615 (1995).

        Second, when the State moved in limine to introduce Miller's history of
domestic violence under ER 404(b), it did not seek to use Patricelli's statements

about Miller's conduct as evidence of that conduct. Similarly, the court did not rely

on ER 404(b) when it overruled Miller's objections to the testimony. The parties
discussed the court's ER 404(b) rulings in relation to the relevancy of Patricelli's
fear and Miller's conduct, but the trial court specifically cautioned the State not to


3RP (Dec. 11, 2013) at 11. This statement includes that Miller was coming home, which
 could be considered his conduct. Even if it were, Patricelli's daughter testified about him
 coming home from her personal knowledge. RP (Dec. 11, 2013) at 10-11.
 4RP(Dec. 9, 2013) at 3-5,
No. 71559-3-1/8


elicit any testimony about what Patricelli had told her coworker about Miller's past

behavior, because it would be hearsay.

                                     Prejudice

       Miller argues that these errors are prejudicial and require reversal. We

disagree because the errors were minor and the evidence of Miller's guilt was

overwhelming. They are harmless.

       Evidentiary errors require reversal only if they result in prejudice. State v.

Neal. 144 Wn.2d 600, 611, 30 P.3d 1255 (2001), as amended (July 19, 2002).

Errors are prejudicial if there is a reasonable probability that they materially
affected the outcome of trial. Neal, 144 Wn.2d at 611. "Improper admission of

evidence constitutes harmless error if the evidence is of minor significance in

reference to the evidence as a whole." Neal, 144 Wn.2d at 611.

       Because Miller admitted killing Patricelli, the only real issue at trial was

premeditation. Aperson kills with premeditation if, after deliberation, he forms the
intent to take another life. State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105

(1995).

       Miller's text messages alone are overwhelming evidencethat the killing was
premeditated. Two days before the murder, he sent his mother a text message
saying that he was going to kill Patricelli. The next night he sent the following
messages to Varnado, who was at Patricelli's apartment:
              Cuzz when I cum in tha kill tha bitch is u gon help the hoe
              brah... She gon be dead ya ain't got tha worry bout hur sayin
              shyt to u bout y u ain't help her

              Good cuz I can say I was out wit u so they can't put me there
              at tha scene


                                          8
No. 71559-3-1/9




               She still talkin shyt she just don't know she bout tha die[5]

He also called Varnado dozens of times and texted him repeatedly to unlock the

doors to Patricelli's apartment that evening and throughout the night.

       Miller also sent Patricelli text messages before she went to bed that

evening:

               Bitch I told u u was ah person that lie good luck u thank u gon
               have fun when ya baby get out u want get tha c him urn gon
               show u that I can get u lol

               Watch how u gon ask me not tha hurt u just watch[6]

       These messages reveal that Miller planned to kill Patricelli more than a day

ahead of the murder. Even Miller's own account of the events implies some level

of premeditation. He testified that after he argued with Patricelli he went to the
kitchen, grabbed a knife, went back tothe bathroom, and began stabbing Patricelli.
       Given the strength ofthe premeditation evidence, it is unlikely that evidence

of Miller's past threatening behavior influenced the outcome ofthe trial. Moreover,
there was other, properly admitted evidence that, like the improperly admitted
evidence, showed that Miller had threatened Patricelli and that he had climbed
onto her balcony. Miller himself admitted that he had threatened Patricelli. He
testified that he had threatened her in letters and text messages. The police officer

who responded to Patricelli's 911 call testified that he personally witnessed Miller
on the balcony that day.

       Miller's argument that the errors were prejudicial relies primarily on his


5 Exhibit (Ex.) 349 at 2.
6 Ex. 349 at 2-11.
No. 71559-3-1/10


argument that the state of mind evidence was irrelevant. See State v. Cameron,

100 Wn.2d 520, 529-31, 674 P.2d 650 (1983). This argument is unpersuasive

because Patricelli's fear of Miller was relevant.

                                  Cumulative Error


       Miller argues that the accumulation of evidentiary errors denied him a fair

trial even if no individual error did. We disagree.

       "The accumulation of errors may deny the defendant a fair trial and

therefore warrant reversal even where each error standing alone would not." State

v, Davis, 175 Wn.2d 287, 345, 290 P.3d 43 (2012).         Cumulative errors do not

require reversal when there is overwhelming evidence of the defendant's guilt. In

re Pers. Restraint of Cross, 180 Wn.2d 664, 691, 327 P.3d 550 (2014). The

defendant "bears the burden of showing . . . that the accumulated prejudice

affected the outcome of the trial." Cross, 180 Wn.2d at 690.

       The only errors Miller identifies are the evidentiary errors discussed above.

Miller cannot meet his burden here for the same reasons we held the errors were

harmless. The evidence of Miller's guilt was overwhelming.

       We affirm Miller's conviction.

                        Rapid Recidivism Aggravating Factor

       The jury found that Miller committed this crime shortly after his release from
incarceration. Miller argues that the court erred by relying on this factor when it
imposed an exceptional sentence. There was evidence that Miller committed the
crime just 15 days after his release. We conclude that the jury may find that




                                          10
No. 71559-3-1/11


"shortly after" can be as long as 15 days.7

       One aggravating factor on which a judge may base an exceptional sentence

is that the defendant committed "the current offense shorty after being released

from incarceration." RCW 9.94A.535(3)(t). It is also described in the case law as

rapid recidivism. State v. Butler, 75 Wn. App. 47, 54, 876 P.2d 481 (1994).

Ordinarily, the trial court may not consider a defendant's criminal history when
imposing an exceptional sentence because that history is factored into the
standard range sentence. Butler, 75 Wn. App. at 54. But this aggravating factor
focuses on the short time period between a defendant's release from incarceration

and his commission of a new offense. Butler, 75 Wn. App. at 54. Therefore, it is

distinguishable from additional punishment based on "mere criminal history."
Butler, 75 Wn. App. at 54.

       Like a finding of guilt, the jury must find any facts necessary to support an
aggravating circumstance beyond a reasonable doubt. State v. Stubbs, 170
Wn.2d 117, 123, 240 P.3d 143 (2010). We review the jury's findings for a
sufficiency of evidence. Stubbs, 170 Wn.2d at 123. Viewing all evidence in the
light most favorable to the State, we must determine whether a rational trier of fact
could have found the existence of the aggravating circumstance beyond a

reasonable doubt. State v. Yates, 161 Wn.2d 714, 752, 168 P.3d 359 (2007).
        Miller argues that a delay of over two weeks is too long to distinguish his
 release from incarceration from mere criminality. He relies on two cases where

 the court has upheld findings on this aggravating factor when the crime was


 7 Clerk's Papers (CP) at 159.
                                         11
No. 71559-3-1/12


committed within hours of the defendant's release. See Butler, 75 Wn. App. at 54;

State v. Cham. 165 Wn. App. 438, 450, 267 P.3d 528 (2011).              Neither case

establishes an outer time limit.

        In State v. Combs, the court held that six months between a defendant's

release and his new conviction was too long to support the aggravating factor in

that case. 156 Wn. App. 502, 507, 232 P.3d 1179 (2010). Still, the court stated
that "six months might constitute a short period of time" under different

circumstances. Combs. 156 Wn. App. at 507.

       In State v. Saltz, the defendant committed malicious mischief one month

after being released from incarceration for violation of a no-contact order. 137 Wn.
App. 576, 579, 585, 154 P.3d 282 (2007). The court upheld the trial court's
exceptional sentence, imposed on the basis of rapid recidivism. Saltz, 137 Wn.
App. at 586.

       Here, Miller's correctional officer testified that Miller was released from
prison on October 15, 2012. Miller killed Patricelli on the morning of October 30,
2012. Arational jury could reasonably find that 15 days was shortly after Miller's
release.8 The trial court did not errwhen it imposed an exceptional sentence based
on this aggravating factor.

                       Domestic Violence Aggravating Factor

        The jury also found Miller guilty of a crime of aggravated domestic violence.
 RCW 9.94A.535(3)(h), (i). To do so, the jury needed to believe beyond a

 8As the State points out, Miller's argument is more easily understood to be that the
 sentencing court's reasons cannot justify an exceptional sentence. That would be a
 question of law that we review de novo. Sajtz, 137 Wn. App. at 580. It does not change
 the outcome here.

                                          12
No. 71559-3-1/13


reasonable doubt that the offense involved domestic violence, and "was part of an

ongoing pattern of psychological or physical abuse of multiple victims manifested
by multiple incidents over a prolonged period of time."9 The court relied on this
factor when it imposed an exceptional sentence.

       Miller argues that, for several reasons, the trial court erred when it relied on
this factor. He contends that the trial court improperly considered his criminal

history, even though it was incorporated into his sentence through his offender
score, that the phrase "psychological abuse" is unconstitutionally vague, and that
the trial court improperly commented on the evidence. But, even if we were to
vacate the jury's finding on the domestic violence aggravating factor, we would still
uphold the exceptional sentence on the basis of Miller's rapid recidivism.
Therefore, we do not address Miller's challenges to this factor.
       We can uphold a sentence imposed for improper and proper grounds if the
proper grounds independently justify the exceptional sentence. State v. Zatkovich,
113 Wn. App. 70, 78, 52 P.3d 36 (2002). As discussed above, the court properly
 relied on the rapid recidivism factor when imposing an exceptional sentence. The
trial court explicitly concluded that "either aggravating circumstance standing alone
 is a substantial and compelling reason justifying the exceptional sentence."10 The
 court's oral ruling likewise suggests that it found the recidivism factor as important
 as the aggravated domestic violence factor.
        Miller argues that it is unlikely that the court would have imposed the same
 exceptional sentence on the basis of the rapid recidivism aggravating factor alone.

 9 CP at 170.
 10 CP at 213.

                                           13
No. 71559-3-1/14


Miller's argument to the contrary is speculative and directly conflicts with the trial

court's written order and oral ruling. We affirm the exceptional sentence on the

basis of the rapid recidivism factor alone.

       Affirmed.




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WE CONCUR:




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