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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                     )      No. 75499-8-I

                         Respondent,         )
                                             )      DIVISION ONE
                         v.                  )
                                             )
JESUS SANTIAGO RAMIREZ,                      )      UNPUBLISHED OPINION
                                             )
                         Appellant.          )      FILED: March 5, 2018


       MANN,   J.   —   Jesus Ramirez was convicted of first degree assault with a

firearms enhancement for the December 2012 shooting of Eric Barcenas-Mora.

Ramirez appeals his conviction contending that the trial court erred in allowing

evidence of his other crimes, wrongs, or acts that should have been excluded

under ER 404(b). We agree, reverse Ramirez’s conviction, and remand for a

new trial.

                                          FACTS

       During the evening of December 20, 2012, a group of about 10 men was

gathered outside of the Washington Park Apartments in Kent. The men were

split into 2 groups of about 5 each and separated by about 15 feet. Everyone

was apparently drinking. Barcenas-Mora was in one group and Ramirez was in
No. 75499-8-1/2


the other group. Barcenas-Mora and Ramirez had met previously through a

mutual friend.

      As Barcenas-Mora stood talking to his friends, he heard a gunshot,

blacked out briefly, and fell to the ground. Barcenas-Mora had been shot in the

abdomen. A responding police officer spoke to Barcenas-Mora at the scene and

Mora said he did not know who shot him. Powder burn marks on Barcenas

Mora’s shirt and flesh indicated that the shot had been fired at close range. The

police found no physical evidence tying anyone to the shooting.

       At trial, the State presented testimony from one of the investigating

officers stating that during a post-shooting visit at the hospital Barcenas-Mora

told the detective that he saw Ramirez pull a gun out of his pocket, extend his

arm towards Barcenas-Mora, and heard Ramirez say “brake yourself.” The State

also presented testimony that during the hospital visit Barcenas-Mora identified

Ramirez as the shooter from a photomontage.

       At trial, Barcenas-Mora explained that he was reluctant to testify because

“I’m not going to blame someone that didn’t do nothing or that I don’t know of.

Because I don’t know who did it.” Barcenas-Mora denied having seen Ramirez

with a gun or that he had ever identified Ramirez as the shooter. He testified that

he had identified Ramirez not as the person who shot him but just as a person

who was there at the time he was shot and the only person he recognized from

the photomontage.

       Detectives responding to the scene interviewed several witnesses,

including Oscar Mendoza. Mendoza provided a recorded statement. In his initial

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No. 75499-8-1/3


statement, Mendoza reported that he saw Ramirez and Barcenas-Mora arguing,

then pushing and shoving each other before the shooting.    At trial, however,
Mendoza testified that he remembered the two men arguing but denied seeing

them pushing or shoving each other.

      Mendoza testified at trial that he saw Ramirez draw the gun, but he did not

know from where, or which hand he had used. He also stated he did not see him

raise or point the gun, he only claimed to see smoke after the shot. He also saw

Ramirez run away after the shooting. Although Mendoza later testified that he

was turned away from Ramirez and did not see Ramirez holding a gun.

      The State also presented testimony that Mendoza picked Ramirez as the

shooter in a double-blind photomontage. At trial, Mendoza denied having ever

looked at a photomontage. After Mendoza denied reviewing the photomontage,

the State asked if testifying was difficult for him. Mendoza responded that the

questioning was not difficult but talking about the shooting was difficult because

“It just brings up animosity. High blood pressure.” The State then asked if this

was the first time he had seen Ramirez since the incident and Mendoza said,

“Sadly, yes. I would love not to see him ever again.” When asked why,

Mendoza responded, “I dislike him for personal reasons.” The State asked that

the jury be excused so that they could question Mendoza about this statement.

       Outside of the jury’s presence, Mendoza revealed that a few months

before the Barcenas-Mora shooting, Ramirez “was really belligerent and also

pulled a gun on me[.]” The State asked if “that’s why you’re having difficulty



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today” and Mendoza agreed. However, Mendoza stated he was not scared to

testify and that he was not scared of Ram irez.

        The State and Ramirez agreed that Mendoza’s statements were ER

404(b) evidence. Ramirez opposed allowing the testimony as it would be far

more prejudicial than probative. The State, however, argued that the testimony

should come in to explain Mendoza’s bias and animosity toward Ramirez. The

State argued that the information was probative of Mendoza’s bias to explain why

Mendoza was “minimizing” his trial testimony, as compared to his prior

statements. Defense counsel again objected, arguing the evidence was far more

prejudicial than probative, and agreed not to cross-examine Mendoza about his

bias.

        The trial court originally determined the evidence was admissible under

ER 404(b) because it was offered for the purpose of explaining Mendoza’s

“animosity towards the defendant.” The trial court opined that “[t]he defense

doesn’t get to just say, you have animosity, don’t believe him, with the State not

being allowed to articulate in more detail what that animosity is.” The trial court

believed “the jury will be unable to really evaluate that whether his testimony

should not be believed because of that unless they know something about the

animosity.” The court agreed that the evidence was “extremely prejudicial,” but

stated “[t]he question is, is it relevant, and is it relevant on the issue on bias of

this witness.”

        The trial court did determine that evidence where Ramirez threatened

Mendoza with a gun while intoxicated was too prejudicial. Therefore, the court

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No. 75499-8-1/5


limited the evidence that would be admitted, only allowing the State to ask

whether Ramirez threatened to “seriously harm” Mendoza and whether Ramirez

had a “weapon” when that threat was made.

       The trial court later stated, “I do believe it is admissible under 409 [sic],

again, for the purpose of establishing the motive of this witness to lie.” The trial

                                       1 evidence that goes to a witness’s
court later opined that under State v. Lubers,

credibility is not analyzed under 404(b), but is instead only analyzed “under the

issue of relevancy.” However, the trial court determined, “whether you analyze it

under 404(b) or whether you analyze—whether it’s relevant, I think it’s the same

analysis that has to be made.” The trial court then stated it found, by a

preponderance of the evidence, that the prior incident occurred; and that the

testimony was relevant because Mendoza was a crucial “identification witness”

and “the credibility of a witness is important.” The court concluded that because

the testimony went to the credibility of the witness, it was not subject to ER

404(b) and it was not excluded, but was instead “presumed included.”

        When the jury returned, the trial court read a limiting instruction:

        The following testimony in this case is admitted for only a limited
        purpose. This evidence consists of Oscar Mendoza’s testimony
        regarding how his relationship with the defendant ended and may
        be considered by you only for the purpose of evaluating Oscar
        Mendoza’s credibility. You may not consider it for any other
        purpose. Any discussion of the evidence during your deliberations
        must be consistent with this limitation.



         1 See State v. Lubers, 81 Wn. App. 614, 623, 915 P.2d 1157 (1996) (holding the trial

court did not err in foreclosing the defendant from examining his girlfriend, Juanita Black,
concerning evidence that there was a feud between Black and the victim’s family as a motive for
the victim to fabricate the rape accusation).
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No. 75499-8-1/6


The State then resumed its questioning of Mendoza:

      Q:     Is the reason that you have—you said some animosity
             towards him because he threatened you—excuse me—he
             threatened to seriously harm you in the past?
      A:     Yes. Correct.
      Q:     Was this about two months before the shooting occurred?
      A.     No. I don’t recall when but it was a while ago.
      Q:     Around that time?
      A:     Yes.
      Q:     When he threatened you, at this time, he had a weapon?
      A:     Yes.
      Q:     Prior to him—before he threatened you like this, you two
             were acquaintances?
      A:     Yes.
      Q:     You weren’t super good friends but you were on good
             terms?
      A:     In the streets, yes.
      Q:     Okay. In the streets? After that, is that when your
             relationship with him ended?
      A:     Yes.

The State did not ask any questions about whether or how Mendoza’s animosity

toward Ramirez affected the truthfulness of his testimony.

                                     ANALYSIS

                     Admissibility of Ramirez’s Prior Conduct

       Ramirez argues first that the trial court erred in allowing Mendoza to testify

about Ramirez’s previous act threatening him with a weapon because the

testimony was evidence of other crimes, wrongs, or acts that should have been

excluded under ER 404(b). We agree.

A.     Standard of Review

       The interpretation of an evidentiary rule is a question of law that we review

de novo. State v. Ashley, 186 Wn.2d 32, 38, 375 P.3d 673 (2016). If the trial

court has interpreted the evidentiary rule correctly, then we review the trial court’s

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No. 75499-8-1/7


decision to admit or exclude evidence for abuse of discretion. State v. Gresham,

173 Wn.2d 405,419,269 P.3d 207 (2012). An abuse of discretion occurs when

“the trial courVs decision is manifestly unreasonable or based upon untenable

grounds or reasons,” such as the misconstruction of a rule. State v. Gunderson,

181 Wn.2d 916, 922, 337 P.3d 1090 (2014). We also consider whether a

reasonable judge would rule as the trial judge did. State v. Thang, 145 Wn.2d

630,642,41 P.3d 1159 (2002).

B.     ER 404(b)

       Our analysis begins with an understanding of ER 404(b). 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.

“‘ER 404(b) is a categorical bar to admission of evidence [of a prior bad act] for

the purpose of proving a person’s character and showing that the person acted in

conformity with that character.” Gunderson, 181 Wn.2d at 922 (quoting

Gresham, 173 Wn.2d at 420). “The same evidence y, however, be admissible

for any other purpose, depending on its relevance and the balancing of its

probative value and danger of unfair prejudice.” Gresham, 173 Wn.2d at 420.

       To admit evidence of the defendant’s prior misconduct, “the trial court

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 prove an element of the crime

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No. 75499-8-1/8


charged, and (4) weigh the probative value against the prejudicial effect.”

Gresham, 173 Wn.2d at 421. “This analysis must be conducted on the record.”

State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). “The party

seeking to introduce the evidence has the burden of establishing the first,

second, and third elements.” Ashley, 186 Wn.2d at 39. Any doubt as to the

admissibility of prior bad act evidence must be resolved in favor of exclusion.

Thang, 145 Wn.2d at 642. If the evidence is admitted, the trial court must also

give a limiting instruction to the jury explaining how the evidence is to be used.

Gunderson, 181 Wn.2d at 923.

C.     Application to Mendoza’s Testimony

       The trial court held that ER 404(b) did not prohibit Mendoza’s testimony

about Ramirez’s prior acts because it went to the “witness’s motive” and not the

“defendant’s motive,” and the “witness’s motive is not covered by ER 404(b)”. It

is true that impeachment evidence of a witness is generally covered by ER 6092

and not covered by ER 404(b). However, ER 609 permits attacking the credibility

of a witness with “evidence that the witness has been convicted of a crime.” ER

609(a) (emphasis added). Clearly, the evidence admitted here was of Ramirez’s

prior bad act, and not Mendoza’s. ER 609 does not apply to allow the testimony

to challenge Mendoza’s credibility.

        Citing State v. Lubers, 81 Wn. App. 614, 915 P.2d 1157 (1996) and State

v. Perez-Valdez, 172 Wn.2d 808, 265 P.3d 853 (2011), the trial court also


        2  The trial court actually stated that this evidence might come in under ER 409. ER 409
is a rule regulating “Payment of Medical and Similar Expenses.” As thatrule is irrelevant here,
we presume the trial court meant ER 609.
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No. 75499-8-1/9


incorrectly concluded that because Mendoza’s testimony abàut Ramirez’s prior

act was offered for Mendoza’s credibility, it was not reviewed under ER 404(b)

and only needed to be found to be relevant. Both cases are inapposite.

       In Lubers, the defendant was seeking to admit evidence through a third-

party witness of the victim’s bias against the defendant in order to demonstrate

that the victim had fabricated her rape accusation against the defendant. 81 Wn.

App. at 623-24.

       Similarly, in Perez-Valdez, a child rape case, the defendant foster care

provider sought to introduce evidence that the victims had committed arson in the

foster home they subsequently lived in as a way to be removed from the home.

The defendant sought to introduce the evidence to demonstrate that they had

falsely accused him of rape in order to get out of his foster home. Perez-Valdez,

172 Wn.2d at 814. These cases do not address the situation here and neither

case can reasonably be interpreted to allow the State to offer evidence of a

defendant’s prior bad acts to bolster or undermine a witness’s credibility.

       While not discussed by the trial court, Washington courts have considered

other, less traditional, theories that have allowed 404(b) evidence for the purpose

of addressing a witness’s credibility. For example, in cases involving domestic

violence, admission of the defendant’s prior acts of domestic violence is often

admissible to assist the jury in evaluating the victim’s credibility. State v. Magers,

164 Wn.2d 174, 186, 189 P.3d 126 (2008) (emphasis added). However, this rule

is specifically limited to domestic violence cases when the complaining witnesses

has given “conflicting” or “inconsistent” statements. Maqers, 164 Wn.2d at 186.

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No. 75499-8-1/10


See also Gunderson, 181 Wn.2d at 924 (declining to extend Maqers to the

situation where the complaining witness did not recant). Washington courts have

also admitted gang evidence to explain a witness’s fear and unwillingness to

cooperate with police. State v. Scott, 151 Wn. App. 520, 528, 213 P.3d 71

(2009). Neither of these rules apply in this case. This case does not involve

domestic violence or even a victim giving inconsistent statements. Mendoza also

specifically testified that he was not afraid of Ramirez and that he was not afraid

to testify. Mendoza was similarly not afraid to aid the police after the shooting, as

he readily spoke to the police about what he witnessed

       The State has not identified a single case that has allowed evidence of a

defendant’s prior bad acts to be admitted for the sole purpose of bolstering the

credibility of a State’s witness. Where no authorities are cited in support of a

proposition, we assume that counsel, after diligent search, has found none.

DeHeer v. Seattle Post-Intelliqencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).

We have also not found a case that supports this theory. We conclude that

bolstering a State witness’s credibility, without any other extenuating

circumstances, is not a proper purpose for admitting ER 404(b) evidence.

       Moreover, even if the purpose provided was a proper. reason for admitting

this evidence, the actual testimony presented fell far short of proving the

connection between Ramirez’s prior bad act evidence and the purpose for which

it was admitted. See Scott, 151 Wn. App. at 527. For evidence to be relevant,

the purpose for which the evidence is sought to be introduced must be “of

consequence to the outcome of the action” and the evidence must tend “to make

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No. 75499-8-I/il


the existence of the identified fact more probable.” State v. Brown, 113 Wn.2d

520, 526, 782 P.2d 1013 (1989), opinion corrected, 787 P.2d 906 (Wash. 1990).

Ramirez was charged with assault in the first degree while armed with a firearm.

The essential elements of that crime require the State to prove “with intent to

inflict great bodily harm,” Ramirez assaulted Barcenas-Mora with a firearm or by

any force or means likely to produce great bodily harm or death. RCW

9A.36.01 1(a).

       The trial court and the State argued the evidence was relevant because

Mendoza was a crucial “identification witness” and “the credibility of a witness is

important.” However, once the evidence was admitted, the State did not pursue

any line of questioning that linked Mendoza’s identification of Ramirez with the

prior incident. The State also did not ask how the incident might have affected

Mendoza’s trial testimony. In the end, the State did not clearly identify their

purpose for admitting such evidence, or whether this evidence would make

Mendoza appear more credible or less credible to the jury. As the State never

sought to connect the evidence with its stated purpose, Mendoza’s credibility, the

evidence only informed the jury that Mendoza’s relationship with Ramirez ended

after Ramirez threatened him with a weapon. On its own, this evidence only

makes Mendoza’s identification of Ramirez more probable because “[e]vidence

that the accused committed an uncharged crime of the same tyne as the crime

charged tends to prove that the accused has a propensity to commit that specific

type of crime.” See State v. Herzog, 73 Wn. App. 34, 44, 867 P.2d 648 (1994)



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No. 75499-8-1/12


(emphasis added). Specific propensity evidence, serving no other legitimate

purpose, is categorically barred by ER 404(b). Gresham, 173 Wn.2d at 420-21.

         Finally, Mendoza’s testimony was also substantially more prejudicial then

probative. The evidence that Ramirez previously threatened to harm Mendoza

with a weapon is substantially similar to his current charge of assault with a

firearm and is inherently prejudicial. When evidence is highly prejudicial, the trial

court needs to reasonably determine that the probative value of the evidence

was similarly high. State v. Arredondo, 188 Wn.2d 244, 263, 394 P.3d 348

(2017). Here, the trial court repeatedly acknowledged that the evidence was

highly prejudicial, but concluded the evidence was admissible because it was

relevant to an identification witness’s credibility. Some relevancy of bias was not

sufficient to overcome the inherent prejudice of this evidence. This evidence was

highly prejudicial, and only barely probative to demonstrate Mendoza’s bias. The

trial court erred in admitting Mendoza’s testimony of Ramirez’s prior bad act.

D.       The Error was not Harmless

         Even if the trial court erred in admitting the evidence, we still review

whether the error was harmless. We review erroneous admission of ER 404(b)

evidence under the nonconstitutional harmless error standard. Statev. Ray, 116

Wn.2d 531, 546, 806 P.2d 1220 (1991). Reversal is required only if there is a

reasonable probability that the outcome of the trial was materially affected by the

error.        116 Wn.2d at 546. We also note that the trial court did provide a

limiting instruction in this case, and we generally presume that juries follow the



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court’s instructions. State v. Weber, 99 Wn.2d 158, 164-65, 659 P.2d 1102

(1983).

          In this case, we cannot hold that this error was harmless. The evidence

informed the jury that Ramirez had recently threatened another acquaintance

with a weapon in a case where he was being charged with assaulting an

acquaintance with a firearm. No instruction can “remove the prejudicial

impression created [by evidence that] is inherently prejudicial and of such a

nature as to likely impress itself upon the minds of the jurors.” State v. Miles, 73

Wn.2d 67, 71, 436 P.2d 198 (1968). This      error was   particularly egregious as

Mendoza’s testimony, that was often vague and inconsistent, was essentially the

State’s entire case against Ramirez. Because of the limited evidence presented

in   this case, we hold there is a reasonable probability that the outcome was

materially affected by the evidence that Ramirez had previously threatened

Mendoza with a weapon. Accordingly, we reverse.

                              Sufficiency of the Evidence

          Ramirez next contends that the charges should be dismissed because

there was insufficient evidence to convict him of the assault. We disagree.

          “A sufficiency challenge admits the truth of the State’s evidence and

accepts the reasonable inferences to be made from it.” State v. O’Neal, 159

Wn.2d 500, 505, 150 P.3d 1121 (2007). Evidence is sufficient if, “‘after viewing

the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting

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No. 75499-8-1/14


Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560

(1979)). Circumstantial and direct evidence carry equal weight. State v.

Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). “Credibility determinations

are for the trier of fact and are not subject to review.” State v. Thomas, 150

Wn.2d 821, 874, 83 P.3d 970 (2004). Accordingly, we “defer to the trier of fact

on issues of conflicting testimony, credibility of witnesses, and the

persuasiveness of the evidence.” Thomas, 150 Wn.2d at 874-75. We will

reverse a conviction “only where no rational trier of fact could find that all

elements of the crime were proved beyond a reasonable doubt.” State v. Smith,

155 Wn.2d 496, 501, 120 P.3d 559 (2005).

       Ramirez has not met this standard. There is evidence that both Mendoza

and Barcenas-Mora identified Ramirez as the shooter from a photomontage.

There is evidence that Mendoza witnessed Ramirez pull a gun, saw smoke

coming from the gun after the shot, and saw Ramirez run away directly after the

shot was fired. Accepting all of the State’s evidence as true, viewing the

evidence in the light most favorable to the State, and deferring to the trier of fact

on matters of credibility, there is sufficient evidence for a rational trier of fact to

find that all of the elements of assault with a firearm were proven beyond a

reasonable doubt.




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      We reverse and remand for a new trial.




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WE CONCUR:



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