                                                                   Supreme Court Clerk



 IN THE SUPREME COURT OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                          )
                                              )
              Respondent,                     )                 No. 91771-0
                                              )
        v.                                    )                   En Bane
                                              )
BARON ASHLEY, JR.,                            )
                                              )        Filed      JUL 1 4 2016
               Petitioner.                    )
                                              )




       WIGGINS,    J.-Baron Ashley Jr.       appeals his conviction     for unlawful

imprisonment with domestic violence. At trial, the State introduced evidence of

Ashley's prior acts of domestic violence against the victim pursuant to ER 404(b). We

hold that the evidence was properly admitted for the purpose of establishing an

element of the charged crime but that the trial court erred in admitting the evidence

for the purpose of bolstering the witness's credibility. However, because we hold that

the error was harmless, we affirm the Court of Appeals.

                                       FACTS

  I.   Factual History

       Ashley and Makayla Gamble dated for several years, during which time they

had two children. After the two separated, Gamble remained close to Ashley's sister,
State v: Ashley Jr. (Baron)
No. 91771-0

Marquetta Jackson, and regularly took her children to play with Jackson's children. In

the years after the separation, Gamble saw Ashley only sporadically.

       Over Memorial Day weekend in May 2013, the Vancouver police sought to

arrest Ashley and Jackson on outstanding warrants for robbery and theft of a motor

vehicle. The officers arrived at Jackson's apartment and knocked on the door on

Friday, May 24. No one answered, and the officers left.

       Unbeknownst to the officers, Ashley was hiding in the apartment with Jackson

and Jackson's two children. Gamble was also at the apartment with her three children,

including her children with Ashley. Shortly after the officers departed, Jackson left for

the rest of the weekend; Gamble remained with Ashley and her children for the rest of

the weekend.

       The officers returned on Monday, May 27, and, hearing voices inside the

apartment, knocked repeatedly on the door. Again, no one answered. The officers

eventually obtained a key and opened the door. Gamble and her children met the

officers in the living room.

       The officers escorted Gamble outside and asked her if Ashley was inside. She

told the officers that he was upstairs. As the officers arrested Ashley, one asked

Gamble why she helped Ashley hide. Gamble explained that Ashley detained her in

the bathroom. She further explained that Ashley allowed her and her children to leave

only when the officers entered the apartment and that Ashley had instructed Gamble

to tell the police that he was not there.




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State v. Ashley Jr. (Baron)
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    II.   Procedural History

          The State charged Ashley with unlawful imprisonment with domestic violence

for detaining Gamble in the bathroom without her consent. 1 Before the trial, the State

moved to introduce evidence of Ashley's prior domestic violence against Gamble. The

State argued that this evidence was necessary to prove the lack of consent element

for the crime of unlawful imprisonment and to enable the jury to understand how

Ashley could control and detain Gamble without an express threat. The trial court

granted the State's motion and directed the parties to submit limiting instructions.

          Throughout the trial, the State's theory was that Ashley was able to restrain

Gamble through a form of intimidation that Gamble recognized and complied with due

to the violent nature of their prior relationship. The defense's theory of the case was

that Gamble fabricated the story because she feared that she would get in trouble for

helping Ashley hide from the police. Every officer on the scene testified that they never

threatened to arrest Gamble for obstruction.

          At trial, Gamble testified that Ashley forced her to remain, while pregnant, in an

upstairs bathroom with her two-year-old daughter. She testified that the door to the

bathroom was closed, that she tried to open it three or four times, and that she twice

told Ashley that she wanted to go home, but that Ashley immediately closed the door.

When asked how Ashley reacted to her attempts to open the door, Gamble stated that

Ashley appeared to be angry.




1 The State also charged Ashley with first degree robbery and theft of a motor vehicle, but
these additional charges are not before us on appeal.

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State v. Ashley Jr. (Baron)
No. 91771-D

       Gamble testified that Ashley had physically abused her in the past. She

explained that she had been in a relationship with Ashley for several years and that

he had abused her multiple times during that relationship. In total, she described four

specific instances of abuse, including three instances when Gamble was pregnant.

Gamble explained that she suffered bruises, black eyes, and a popped eardrum as a

result of these attacks, but that she called the police only once and later retracted her

complaint because she loved Ashley. Specifically, Gamble testified that these

instances affected her decision to get into the bathroom when instructed:

       [W]hen I look at his face the past did come up because I am scared of
       him. Everything-! listen to him because of the fear and being pregnant
       again and having a two year old in the bathroom was very fearful.

When asked why she went into the bathroom, Gamble responded:

       Because [of] the look in his eyes. When he is mad-1 know when he is
       mad. I know he will flash. He'll do stuff because of the history. I know his
       temper.

       Gamble admitted on cross-examination that Ashley had not struck her since

2008, adding that she did not see him frequently, as he moved between Washington

and Texas regularly. She also stated that there were no other incidents with Ashley

over Memorial Day weekend apart from the two police visits.

       Because the trial court admitted the evidence of prior domestic violence

pursuant to ER 404(b), the court issued a limiting instruction pursuant to

11 Washington Practice: Washington Pattern Jury Instructions: Crimina/5.30 (2008)




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State    v.   Ashley Jr. (Baron)
No. 91771-0

(WPICj2 that the evidence was to be used only to (1) assess Gamble's credibility as

a witness and (2) determine the element of consent in relation to the unlawful

imprisonment charge. The jury found Ashley guilty as charged and returned a special

verdict finding that Ashley and Gamble were members of the same family or

household for purposes of the domestic violence allegations. The Court of Appeals

affirmed.

          We granted review and directed the parties to file supplemental briefing

addressing "the impact, if any, of State v. Gunderson, 181 Wn.2d 916, 337 P.3d 1090

(2014) on this case."

                                               ANALYSIS

    I.        Standard of Review

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

novo. Diaz         v.   State, 175 Wn.2d 457, 462, 285 P.3d 873 (2012). And we review the trial

court's decision to admit or exclude evidence for an abuse of discretion. State                v.
Fox hoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). The appellant bears the burden




2   Pursuant to WPIC 5.30, the instruction reads in full:

                     Certain evidence has been admitted in this case for only a limited
              purpose. The evidence consists of prior alleged bad acts of Mr. Ashley against
              Ms. Gamble.
                     This evidence may be considered by you only for the purposes of: 1)
              assessing the credibility of Ms. Gamble as a witness and 2) determining the
              element of consent as it relates to the charged offense. You may not consider
              it for any other purpose. Any discussion of the evidence during your
              deliberations must be consistent with this limitation.

Ashley objected only to the credibility portion of the instruction.

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State v. Ashley Jr. (Baron)
No. 91771-0

of proving an abuse of discretion. State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850

(1999).

 II.   Analysis of ER 404(b)

       ER 404(b) provides in full:

       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.

By its plain language, the rule absolutely prohibits certain types of evidence from being

used "to prove the character of a person in order to show action in conformity

therewith," but allows that same evidence to be introduced for any other purpose,

depending on its relevance and the balancing of its probative value and danger of

unfair prejudice. State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012).

       Washington courts use a four-part test to determine if ER 404(b) evidence is

admissible:

       To admit evidence of a person'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 charged, and (4) weigh the probative value against
       the prejudicial effect."

/d. at 421 (quoting State     v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). The
party seeking to introduce the evidence has the burden of establishing the first,

second, and third elements. /d. The trial court must conduct this inquiry on the record,

and, if the evidence is admitted, a limiting instruction must be given to the jury.

Foxhoven, 161 Wn.2d at 175. As noted above, in this case, the trial court conducted



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State v. Ashley Jr. (Baron)
No. 91771-0

the appropriate four-step analysis on the record and gave a limiting instruction to the

jury.

        Ashley challenges the trial court's application of every part of this test, save the

second prong. He asserts that the State did not establish by a preponderance of the

evidence that the incidents of prior domestic violence occurred or that this evidence

was irrelevant to Gamble's credibility and to the elements of the crime, and that the

prejudice of the prior bad acts dramatically outweighed any probative value of the

evidence. We address these arguments in turn.

    A. First Prong: Sufficiency of Evidence of Prior Misconduct

        Ashley asserts that the State presented insufficient evidence that the domestic

violence incidents actually occurred. Specifically, he argues that Gamble's testimony,

alone, is insufficient to establish that the misconduct occurred, noting that the State

did not present corroborating evidence such as medical records or police reports. We

review the trial court's decision for an abuse of discretion. Gunderson, 181 Wn.2d at

921-22.

        The State presented evidence of Ashley's domestic violence against Gamble

during motions in limine. As an offer of proof during motions in limine, Gamble testified

about a series of domestic violence incidents committed against her between 2000

and 2008. These incidents included being strangled, being slapped several times

while pregnant with each of their children, being pushed down the stairs while

pregnant, and an incident in 2005 where Ashley had given Gamble a black eye and

popped her eardrum.




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State v. Ashley Jr. (Baron)
No. 91771-0

       On cross-examination, Gamble conceded that she did not see Ashley more

than a few times a year and that the last domestic violence incident against her had

occurred in 2008. Gamble also conceded that Ashley did not explicitly threaten her

when he ordered her to get into the bathroom in May 2013. However, Ashley did not

contest any of the prior domestic violence allegations on cross-examination. 3 Based

on this testimony, the trial court concluded that the State satisfied its burden of

establishing by a preponderance of the evidence that the misconduct occurred.

       The State satisfied the first prong of the test. The trial court heard undisputed

testimony describing a series of instances of domestic violence by Ashley against

Gamble and reviewed a 2004 police report. The trial court found Gamble's testimony

credible. Ashley presents no legal or factual argument for disturbing this finding; he

simply disagrees with it.

    B. Second Prong: the Purpose for Introducing the Evidence

       The State sought to introduce the evidence to prove the lack of consent element

for the crime of unlawful imprisonment. Ashley does not contest this prong, and this




3 The State did not introduce any medical evidence or physical exhibits during the motion
hearing. However, it appears that the trial court was presented with a 2004 police report of a
domestic violence allegation against Ashley by Gamble. That allegation was later withdrawn.
Though Ashley argues that this lack of evidence suggests that the State did not establish by
a preponderance of the evidence that the misconduct occurred, he does not provide citation
to any authority standing for the proposition that a witness's testimony alone cannot establish
a fact by a preponderance of the evidence. Further, we are cognizant of numerous statistics
and studies reporting that domestic violence is frequently unreported and nationally
underreported. See, e.g., Enrique Gracia, "Unreported cases of domestic violence against
women: towards an epidemiology of social silence, tolerance, and inhibition," 58 J. EPIDEMIOL.
COMMUNITY HEALTH 536-37 (2004); Ruth E. Fleury et al., "Why Don't They Just Call the
Cops?": Reasons for Differential Police Contact Among Women with Abusive Partners, 13
VIOLENCE AND VICTIMS 333 (1998). We do not impose an additional burden in domestic
violence cases.

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State v. Ashley Jr. (Baron)
No. 91771-0

clearly satisfies the second prong of the ER 404(b) inquiry. See Gresham, 173 Wn.2d

at 421. The State also argued that the evidence went to Ashley's credibility, which we

discuss later in this opinion.

   C. Third Prong: Relevance

         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." ER 401. We hold that the domestic

violence evidence was relevant to establish lack of consent as an element of the

crime.

         The trial court found that the evidence of prior domestic abuse "goes to the

element ... that the restraint was without consent." This is an essential element of

unlawful imprisonment, RCW 9A.40.040. "A person is guilty of unlawful imprisonment

if he or she knowingly restrains another person." RCW 9A.40.040(1 ). RCW

9A.40.01 0(6) provides the definition and essential elements of "restraint":

         "Restrain" means to restrict 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 State's theory was that Ashley intimidated Gamble, forcing her to remain

in the bathroom. The trial court found that the State demonstrated that Ashley's history

of domestic abuse against Gamble was highly probative of whether Ashley restrained

Gamble using intimidation and fear based on this history of domestic abuse.

Essentially, the trial court found-and the Court of Appeals agreed-that the domestic




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State v. Ashley Jr. (Baron)
No. 91771-0

violence evidence was both material and relevant to Gamble's lack of consent and to

whether Ashley restrained Gamble by intimidation. We agree.

       Ashley argues that the prior assaults by Ashley had, at most, minimal relevance

because "the details of Gamble's claim of imprisonment were of no consequence in a

case where the issue was whether the allegation was untrue .... " We rejected a

similar argument in State     v. Magers, stating that "a not guilty plea puts the burden on
the State 'to prove every essential element of a crime beyond a reasonable doubt."'

164 Wn.2d 174, 183, 189 P.3d 126 (2008) (quoting State             v. Cantu, 156 Wn.2d 819,
825, 132 P.3d 725 (2006)). Because the State here bore the burden of establishing

every element of unlawful imprisonment, it had the burden of establishing the "restraint

without consent" element. Thus, the State properly presented evidence of Ashley's

intimidating Gamble to prove the element of "restraint without consent" by

intimidation 4 See RCW 9A.040.01 0(6)(a).

    D. Fourth Prong: Probative Value Versus Prejudicial Effect

       Finally, Ashley argues that the probative value of the domestic violence

evidence is outweighed by its significant prejudicial effects. This analysis implicates

ER 403. 5 See Gunderson, 181 Wn.2d at 923. In conducting this analysis, we are


4 We also reject Ashley's assertions at oral argument that the evidence was unnecessary
because the State had already presented "enough evidence" that Gamble was restrained
without her consent. Ashley did not concede this element of the crime during trial, and the
State is entitled to present its case so that it can satisfy its burden of proving every essential
element of a crime beyond a reasonable doubt.
5 ER 403 reads in full:


              Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of
       time, or needless presentation of cumulative evidence.

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State   v.   Ashley Jr. (Baron)
No. 91771-0

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." /d. at 925. "To guard against this heightened

prejudicial effect, we confine the admissibility of prior acts of domestic violence to

cases where the State has established their overriding probative value." /d. Here, the

trial court properly balanced these interests, concluding that Ashley's long history of

domestic violence toward Gamble was highly probative in assessing whether Ashley

intimidated Gamble, such that she was restrained without her consent. See RCW

9A.040.01 0(6). However, the State failed to show the overriding probative value of the

evidence for credibility purposes. Thus, the trial court did not abuse its discretion in

admitting the domestic violence evidence for an element of the crime, but did in

admitting the same evidence for Gamble's credibility.

1. The trial court properly admitted the evidence to establish an element of the crime
         A trial court's decision to admit evidence of prior bad acts depends heavily on

the facts of the case and the purpose for which the evidence is sought to be

introduced. Washington courts often admit evidence of a defendant's prior bad acts

under ER 404(b) on traditional theories, such as proof of motive or opportunity. See

50 KARL B. TEGLAND, WASHINGTON PRACTICE: COURTROOM HANDBOOK ON WASHINGTON

EVIDENCE ch. 5, § 404:25, at 188 (2015). Washington courts have recently been

persuaded "to admit [evidence of prior acts of domestic violence] on less traditional

theories, tied to the characteristics of domestic violence itself." /d. We have often

allowed evidence of domestic violence to prove the alleged victim's state of mind. See,

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

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State v. Ashley Jr. (Baron)
No. 91771-0

Nelson, 131 Wn. App. 108, 116, 125 P.3d 1008 (2006) (allowing evidence of past

physical abuse to demonstrate the victim's fear of the defendant and explain the

apparent inconsistency of the victim not reporting the full extent of the abuse earlier)).

We have also allowed evidence of prior acts of domestic violence to support a

witness's credibility after her testimony changed on the grounds that '"the jury was

entitled to evaluate [the victim's] credibility with full knowledge of the dynamics of a

relationship marked by domestic violence and the effect such a relationship has on

the victim."' Magers, 164 Wn.2d at 186 (quoting TEGLAND, supra, at 189). However,

we have specifically rejected evidence of prior domestic violence when the State

sought to admit the evidence for the purpose of witness credibility where there has

been no change in the victim's testimony. See Gunderson, 181 Wn.2d at 925.

       Ashley asserts at least two reasons that the probative/prejudicial balance

requires exclusion as a matter of law. First, he reiterates his argument that the method

of Gamble's imprisonment is a "peripheral aspect of the case" rather than a necessary

element of the crime of unlawful imprisonment. For reasons stated above, we reject

this argument. Second, Ashley argues that the domestic violence incidents occurred

too far in the past to have any current probative value. Essentially, Ashley questions

whether a temporally remote history of domestic violence is probative of a victim's

current fear, such that the victim could be intimidated without an explicit threat. We

reject this argument.

       It is unquestionably reasonable for the trial court to conclude that a domestic

violence victim would continue to fear her tormentor, even years after the last incident

of abuse. Ct. Thang, 145 Wn.2d at 642 (in assessing whether a trial court abuses its

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State v. Ashley Jr. (Baron)
No. 91771-0

discretion, we also consider whether a reasonable judge would rule as the trial court

did). Specifically, the trial court reasonably determined 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. This is

particularly reasonable following Gamble's testimony that she had seen Ashley only

three or four times since the last domestic violence incident.

       Concluding that Gamble reasonably feared Ashley based on the violence of

their prior relationship, the trial court properly found that the State established the

overriding probative value of this evidence because the evidence went directly to a

necessary element of the crime. As the State points out in its briefing, "but for that

history of abuse, the State could not prove, nor could Ms. Gamble explain, how Ashley

'knowingly restrained her without consent"' by intimidation. Suppl. Br. of Resp't at 15

(citing RCW 9A.40.040, .010(6)). This evidence helped the jury assess Gamble's state

of mind-that is, whether she was restrained against her will because she was

intimidated. RCW 9A.40.010(6); see Fisher, 165 Wn.2d at 744.

       This analysis does not conflict with our opinion in Gunderson. Our opinion in

Gunderson guards against the heightened prejudicial effect of prior domestic violence

by "confin[ing] the admissibility of prior acts of domestic violence to cases where the

State has established their overriding probative value." 181 Wn.2d at 925.

       In Gunderson, the State attempted to introduce evidence of prior instances of

domestic violence by the defendant against the State's own witness to impeach that

witness. /d. at 920-21. Although the State's witness did not contradict herself or recant

earlier statements, the court admitted the evidence on the ground that other evidence

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State v. Ashley Jr. (Baron)
No. 91771-0

contradicted her account. /d. We rejected the State's invitation to create a blanket

domestic violence exception for prior bad acts and observed that "the mere fact that

a witness has been the victim of domestic violence does not relieve the State of the

burden of establishing why or how the witness's testimony is unreliable." /d. at 924-

25. "That other evidence from a different source contradicted the witness's testimony

does not, by itself, make the history of domestic violence especially probative of the

witness's credibility." /d. at 924.

       Our opinion was careful to balance the heightened prejudicial effects of

domestic violence against the recognition that the probative value of such evidence

could outweigh its prejudicial effects in certain circumstances. We noted that we do

not recognize a blanket exception to the required ER 404(b) analysis for domestic

violence, nor do we limit the use of such evidence to cases in which a witness has

recanted or made inconsistent statements. See id. at 925 & n.4 (citing Magers, 164

Wn.2d at 186).

       Here, the evidence was properly introduced to explain how Gamble could be

intimidated by Ashley, which goes directly to the element of restraint without consent.

See RCW 9A.040.010(6). As the State asserts, the evidence "showed that her

behavior was not inexplicable, not unreasonable, and that she was in the bathroom

without consent." Accord State        v.   Grant, 83 Wn. App. 98, 106, 920 P.2d 609 (1996)

(evidence of prior domestic violence admissible "because it was relevant and

necessary to assess Ms. Grant's credibility as a witness and accordingly to prove that

the charged assault actually occurred" (cited with approval in Magers, 164 Wn.2d at




                                                 14
State v. Ashley Jr. (Baron)
No. 91771-0

185-86)). The trial court did not abuse its discretion in admitting this evidence on these

grounds.

2. The trial court improperly admitted the evidence for credibility purposes

        The trial court's admission of the domestic violence evidence for credibility was

error because the State did not establish the "overriding probative value" of the

evidence for that purpose. Indeed, the trial court's admission of the evidence for

credibility purposes conflicts with Gunderson. Gamble's testimony at trial was

consistent with her prior statements to police. Regardless of the defense's general

theory that Gamble made up her story to avoid getting in trouble, there was no

evidence in the record to suggest that Gamble's testimony was untruthful. There was

no need to introduce the domestic violence evidence to defend or bolster Gamble's

credibility. Therefore, the trial court erred in admitting the domestic violence evidence

for credibility purposes.

 Ill.   Harmless Error

        Because the trial court properly admitted evidence of Ashley's domestic

violence history against Gamble to establish lack of consent but improperly allowed

consideration of the evidence/for credibility purposes, we must address whether the

court's error was harmless. Erroneous admission of evidence in violation of ER 404(b)

is harmless unless there is a reasonable probability that the verdict would have been

materially different but for the error. Gresham, 173 Wn.2d at 433. Here, there is no

reasonable probability that the admission of Ashley's history of domestic violence

against Gamble for credibility purposes caused the verdict to be materially different.




                                            15
State v. Ashley Jr. (Baron)
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       First, the evidence was admitted for a proper purpose and was already in the

minds of the jurors. Second, Gamble never contradicted herself, weakening the

defense's claim that she was not telling the truth. Third, Gamble told the same story

to the police immediately upon leaving the apartment, which undermines any claim of

recent fabrication. Fourth, Gamble's story made sense-there is no reason why she

would place herself at risk of arrest by hiding in the bathroom when the police were

not even looking for her. For all these reasons, there is no reasonable probability that

but for the error the verdict would have been materially different. Thus, we conclude

that the trial court's error in admitting the domestic violence evidence for credibility

purposes was harmless.

                                    CONCLUSION

       We affirm the trial court and the Court of Appeals in part and reverse in part.

We hold that trial court conducted the proper ER 404(b) analysis on the record, the

domestic violence evidence presented was highly probative of the victim's lack of

consent, and the State met its burden of demonstrating the evidence's overriding

probative value to establish a necessary element of the crime. However, we also hold

that the trial court committed harmless error by instructing the jurors that they could

consider the evidence for the purpose of bolstering Gamble's credibility. We therefore

affirm the result of the trial court and of the Court of Appeals, and we affirm Ashley's

conviction.




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State v. Ashley, Jr. (Baron)
No. 91771-0




       WE CONCUR.




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