IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                    )
                                        )    No. 75569-2-1
                     Respondent,        )
                                        )    DIVISION ONE
              v.                        )
                                        )                                    =Ps
TEKLEMARIAM DANIEL HAGOS,               )    UNPUBLISHED OPINION
                                        )                                    ••

                     Appellant.         )    FILED: November 6, 2017
                                                                             C:)
                                        )

       BECKER, J. — Appellant Teklemariam Hagos, convicted of second and
fourth degree assault, challenges pretrial rulings denying his motions to exclude

statements he made before and after the assaults and to suppress the result of a

show-up procedure. Finding no error, we affirm.

       Based on allegations that Hagos assaulted two men with a knife, the State

charged him with two counts of second degree assault while armed with a deadly

weapon. Prior to trial, Hagos moved to exclude statements he made around the

time of the assault and to suppress a show-up identification.

      At the suppression hearing, the State's evidence showed that on February

4, 2016, Derval Johnson and Gregory Priessnitz stopped to get pizza in the

Capital Hill area of Seattle. As they waited to order, they noticed a man

mumbling to himself near the takeout window. Johnson attempted to make

conversation with the man. The man replied, "'fucking faggots."
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       A short time later, as Johnson and Priessnitz were eating their pizza

slices, the man suddenly knocked the pizza out of their hands. Johnson turned

to find the man slashing at him and Priessnitz with a knife.

       Bystanders waived down a passing patrol car driven by Seattle Police

Officer Tyler Verhaar. Officer Verhaar looked to his left and saw a man, later

identified as Hagos, swinging something metallic at Johnson and Priessnitz.

Officer Verhaar turned on his overhead lights, and the man immediately began

walking away from the scene. Officer Verhaar approached Johnson and

Priessnitz who reported the assault and pointed toward Hagos. Officer Verhaar

followed Hagos a short distance, never losing sight of him, and later located a

knife a few feet from where the incident occurred. Priessnitz identified the knife

as the one Hagos had in his hand.

       Other officers arrived and detained Hagos at a nearby gas station. Hagos

was "highly agitated, very angry," "yelling, swearing," accusing the officers of

"putting things up his ass" and repeatedly calling the officers "faggot." During his

transport to the precinct, Hagos told the transporting officer, "I'm going to fuck

your wife." Several witnesses said Hagos' behavior suggested he was

intoxicated or had mental health issues.

       Officer Lydia Penate spoke with Priessnitz and Johnson at the scene.

Both said they could identify the assailant. Officer Penate then took Priessnitz to

the area where officers were detaining Hagos, shined a spotlight on Hagos, and




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asked Priessnitz if he could identify him. Priessnitz identified Hagos without

hesitation, saying he had the same face, same hat, and same outfit.

       The trial court denied Hagos' motions to exclude statements and to

suppress the show-up identification. A jury later convicted him of one count of

second degree assault with a deadly weapon and one count of fourth degree

assault. Hagos appeals the court's pretrial rulings.

Motion to Exclude Statements Under ER 404(b)

       Hagos first contends the trial court abused its discretion in admitting

statements he made immediately before and after the assaults. Specifically, he

contends the court should not have admitted testimony that he said "fucking

faggots" just before the assaults, repeatedly called the arresting officers

"faggots," told the arresting officers to "get out of my butt," and told the officer

transporting him from the scene that "he wanted to fuck my wife." Hagos claims

these statements were inadmissible under ER 404(b). We disagree.

       ER 404(b) bars the admission of a defendant's other crimes, wrongs, or

acts to show the defendant's character or that he acted in conformity with that

character. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014).

Such evidence is admissible for limited purposes, however, such as motive,

opportunity, preparation, plan, knowledge, identity, or absence of mistake or

accident. In addition, Washington courts recognize a "res gestae' or'same

transaction' exception" to the restrictions of ER 404(b). State v. Lane, 125 Wn.2d

825, 831, 889 P.2d 929(1995). The res gestae exception permits the admission


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of evidence otherwise precluded by ER 404(b)"'if it is so connected in time,

place, circumstances, or means employed that proof of such other misconduct is

necessary for a complete description of the crime charged, or constitutes proof of

the history of the crime charged." State v. Schaffer, 63 Wn. App. 761, 769, 822

P.2d 292 (1991), quoting 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE

LAW AND PRACTICE § 115, at 398 (3d ed. 1989), aff'd, 120 Wn.2d 616, 845 P.2d

281 (1993). Evidence that falls within an exception to ER 404(b) is admissible

only if it also meets the requirements of ER 403, which allows the exclusion of

relevant evidence "if its probative value is substantially outweighed by the danger

of unfair prejudice." We review the admission of evidence under these rules for

abuse of discretion. Gunderson, 181 Wn.2d at 921-22.

       Applying these principles here, we conclude the trial court's decision was

well within its discretion. We agree with the State that the challenged statements

came within several exceptions to ER 404(b), including motive. Motive is an

"impulse, desire, or any other moving power which causes an individual to act."

State v. Powell, 126 Wn.2d 244, 259, 893 P.2d 615 (1995). Evidence of motive

is admissible even when it is a not an element of the charged crime. State v.

Yarbrough, 151 Wn. App. 66, 83, 210 P.3d 1029 (2009). Hagos' statements

reflecting his hostility toward gay men in particular and his angry disposition in

general demonstrated an animus or "moving power" relevant to the motive for the

assaults. See State v. Finch, 137 Wn.2d 792, 822-24, 975 P.2d 967(a

defendant's hostile declarations toward victims or a racial group may be


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probative of motive, intent, and state of mind), cert. denied, 528 U.S. 922(1999);

State v. Powell, 126 Wn.2d 244, 259-63, 893 P.2d 615(1995)(recent events and

statements involving the victim and the defendant were relevant to show ongoing

hostilities between the two and were admissible as res gestae and to show

motive).

       The statements were also relevant to Hagos' intent—an element of both

assault charges—and the assailant's identity. As the State points out, Hagos'

defense centered on identity, intent, and voluntary intoxication. Hagos'

statements were probative of each of these defenses.

       Finally, the statements were also properly admitted as res gestae

evidence. Assuming res gestae evidence is subject to the strictures of ER

404(b),1 the statements in this case were "necessary for a complete description

of the crime charged." The assaults were unprovoked and, absent the

challenged statements, seemingly inexplicable. Hagos' state of mind and angry

disposition around the time of the assaults were necessary to give the jury a

complete description of the crime. See Powell, 126 Wn.2d at 263.




        1 Division Two of this court has held that res gestae evidence is "not 'prior
misconduct' of the type generally inadmissible under ER 404(b)" and should be analyzed
under ER 401, 402, and 403, not under ER 404(b). State v. Grier, 168 Wn. App. 635,
647, 278 P.3d 225 (2012), cert. denied, 135 S. Ct. 153(2014); but see Lane, 125 Wn.2d
at 831 (analyzing res gestae evidence under ER 404(b) but treating it as an exception).




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ER 403

       Hagos argues alternatively that even if the statements were admissible

under ER 404(b), they were inadmissible under ER 403 because their probative

value was substantially outweighed by the danger of unfair prejudice. While the

statements were highly prejudicial, they were also highly probative. A trial judge

has considerable discretion in balancing the probative value of evidence against

its potential prejudicial impact. State v. Hughes, 106 Wn.2d 176, 201, 721 P.2d

902(1986); see also Finch, 137 Wn.2d at 824 (deferring to trial court where

balancing under ER 403 presented close question). We cannot say the court

here abused its discretion.

Motion to Suppress Show-up Identification

       Hagos next contends the show-up identification was so suggestive that it

denied him due process. Again, we disagree.

       A defendant claiming an identification procedure denied him due process

must first show that the procedure was unnecessarily suggestive. Foster v.

California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402(1969). If the

defendant makes that showing, the court then reviews the totality of the

circumstances to determine whether the suggestiveness created a substantial

likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98,

116, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Relevant circumstances include

the opportunity of the witness to view the suspect, the witness's degree of

attention, the accuracy of the witness's prior description of the suspect, the


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witness's level of certainty, and the time between the crime and the identification.

State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999), review denied, 140

Wn.2d 1027(2000); State v. Collins, 152 Wn. App. 429,434, 216 P.3d 463

(2009), review denied, 168 Wn.2d 1020(2010). When, as here, the trial court

enters findings of fact and conclusions of law on the motion to suppress, we

review the findings for substantial evidence and the conclusions de novo. State

v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006). Because Hagos assigns no

error to the trial court's findings of fact, they are verities on appeal. Levy, 156

Wn.2d at 733.

       The trial court found that Officer Verhaar saw Hagos "swing a metallic

object within inches of the victims" and did not lose sight of Hagos at any point

before detaining him. A video taken by a camera in Officer Verhaar's patrol car

showed Hagos stepping away from the fracas as one of the victim's pointed at

him. The video also showed Officer Verhaar leaving his car and following Hagos.

During the showup, Hagos stood next to uniformed officers with his hands

handcuffed behind his back. Officer Penate shined a light on Hagos and asked

Priessnitz if he could identify him. Priessnitz immediately stated,'that's him."

The court also found that

      the witnesses had an opportunity to view the defendant and their
      attention was directed to him because of his behavior. Mr.
      Priessnitz paid particular attention to the defendant because he
      was concerned about the defendant and felt that he should keep
      his "eye on him." Mr. Priessnitz also pointed the defendant out to
      Officer Verhaar as the defendant was walking away from the scene.
      Finally, Mr. Priessnitz was confident in his identification that was
      only minutes after the incident.

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No. 75569-2-1/8



Conclusion of Law 3(a); See State v. Marcum, 24 Wn. App. 441, 445, 601 P.2d

975(1979)(findings of fact mischaracterized as conclusions of law are treated as

findings of fact). Based on these findings, the trial court concluded the showup

was "not so impermissibly suggestive as to give rise to a substantial likelihood of

irreparable misidentification." The court's unchallenged findings amply support

that conclusion.

       Hagos argues, however, that Priessnitz looked away during the attack,

stood behind a person who blocked his view, and could have been influenced in

his show-up identification by Officer Penante's statement that "she wanted him to

identify the person they had arrested." Citing out-of-state authority, he also

argues that Priessnitz's certainty regarding his identification does not make his

identification more reliable. These arguments do not undermine the court's

conclusion.

       In addition to ignoring the court's unchallenged findings, Hagos'

arguments ignore the evidenceLthat Priessnitz's attention was drawn to Hagos
                                1
before the assault, and that Priessnitz saw him knock the pizza from their hands

and eat Johnson's pizza. Priessnitz thus observed Hagos for more than a

moment and looked directly at his face. Consistent with that evidence, Priessnitz

told Officer Pen ate prior to the showup that he could identify the assailant. He

then proceeded to confidently identify Hagos based on his face, outfit, and hat.

As noted above, the certainty of the identifying witness is a factor Washington




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courts consider in determining whether an identification procedure created a

substantial likelihood of misidentification.

       Hagos' arguments also ignore Officer Verhaar's eyewitness testimony

corroborating Preissnitz's identification of Hagos. And contrary to Hagos'

assertions, Officer Penate did not testify that she wanted Priessnitz "to identify

the person they had arrested"; rather she testified that she asked Priessnitz "if he

could identify" a person they had "detained." Considering the totality of the

circumstances, any suggestiveness in the showup did not create a substantial

likelihood of irreparable misidentification.

       In a statement of additional grounds for review, Hagos claims his trial

counsel was ineffective for failing to let the jury know during argument "that the

police officers did not read me my Miranda rights on the video shown in the

courtroom by the officer." The record does not support this claim. The court

ruled before trial that Hagos' statements to police were "spontaneously made by

the defendant and were not in response to interrogation by the officers.

Therefore, Miranda fv. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966)], does not apply." Conc usion of Law 2(a)(4).

      Affirmed.


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