                                                                 FILED 

                                                             NOVEMBER 25, 2014 

                                                           In the Office of the Clerk of Court 

                                                         W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 31662-9-111
                                              )
                     Respondent,              )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
TRAVIS J. PATTEN,                             )
                                              )
                     Appellant.               )

       LAWRENCE-BERREY,      J. - A jury found Travis J. Patten guilty of second degree

assault. Mr. Patten appeals his conviction, alleging that the trial court erred in admitting

evidence of bad acts prior to and following the alleged assault. Although bad acts are

inadmissible to show that the defendant acted in conformity therewith, bad acts are

admissible for other purposes. We hold that the trial court did not abuse its discretion

when it determined that bad acts prior to and following the alleged assault were

admissible so that the jurors could better understand the issues that likely would be

contested at trial. We, therefore, affirm.
No. 31662-9-III
State v. Patten


                                          FACTS

       Aaron Hall observed a woman take items from his parked car and get into a white

vehicle driven by a second person. Mr. Hall and his fiancee, Cathreen Adams, attempted

to follow the white vehicle and eventually found it in a nearby parking lot. Mr. Hall

recognized the woman, later identified as Kaylee Zornes, sitting in the front seat as the

one who had broken into his car. Mr. Hall then observed a man, later identified as Mr.

Patten, come around the car and get into the backseat.

       Ms. Adams parked her car directly behind the white vehicle. Mr. Hall jumped out

of the car, walked up to the back window of the white vehicle, and said to Mr. Patten,

"[Y]oujust broke into my car." Report of Proceedings (RP) at 52. Mr. Hall then saw his

stereo on the back seat. When he attempted to reach in the vehicle and grab the stereo,

Mr. Patten grabbed a knife and stabbed at Mr. Hall's hands. Mr. Hall jumped back,

grabbed the window, and broke it. Ms. Zornes then backed into Mr. Hall's car several

times, maneuvered the white vehicle out of the parking lot, and drove away with a flat

back tire.

       Witnesses testified to seeing a white car with a flat back tire being driven

erratically, a person throwing stereos out of this car, and this same car being hidden inside

a garage. The garage was rented to Ms. Zornes' brother-in-law, Dustin Clark. One


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No. 31662-9-111
State v. Patten


witness contacted the police and relayed what he had seen. The police obtained a search

warrant for the garage and the white vehicle. They seized a knife found on the front

passenger seat of the vehicle.

       The State charged Mr. Patten with second degree assault. The State also charged

Ms. Zornes with first degree robbery and second degree assault, to which she later

pleaded gUilty.

       Before Mr. Patten's trial, the State filed and argued a motion seeking to admit

evidence involving, "[a]pproximately 30 minutes ... between when Mr. Hall and Ms.

Adams first saw an unknown woman stealing items from their vehicle parked outside

their home, to Ms. Zornes and Mr. Patten showing up at Mr. Clark's residence asking if

they could park their [white vehicle] in his garage because someone was chasing them."

Clerk's Papers (CP) at 15-16. The State argued such evidence was necessary, "so [the

jury] may have a complete description of the crime charged and proof of history of the

crime charged as discussed in Tharp)!] The entire string of events is relevant." CP at 16.

The court allowed the proffered evidence to show opportunity, intent, plan, identity, and

flight. The court stated it would entertain objections to the admission of the evidence at



       IState v. Tharp, 27 Wn. App. 198,204,616 P.2d 693 (1980), ajJ'd, 96 Wn.2d 591,
637 P.2d 961 (1981).

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No. 31662-9-III
State v. Patten


trial ifit differed from the evidence presented in the State's motion in limine.

       The jury found Mr. Patten guilty of second degree assault while armed with a deadly

weapon. He appealed.

                                        ANALYSIS

       Admission orEad Acts. The first issue is whether evidentiary error deprived Mr.

Patten of a fair trial. He contends the trial court wrongly granted the State's motion,

allowing ER 404(b) evidence of approximately 30 minutes between when Mr. Hall and

Ms. Adams first saw Ms. Zornes stealing items from Mr. Hall's vehicle to the time Ms.

Zornes and Mr. Patten showed up at Mr. Clark's garage. Mr. Patten argues the court did

not provide a sufficient basis for allowing the evidence.

       This court reviews ER 404(b) evidentiary rulings for an abuse of discretion. State

v. Yarbrough, 151 Wn. App. 66, 81,210 P.3d 1029 (2009). A trial court abuses its

discretion when its decision is manifestly unreasonable or exercised on untenable grounds

or for untenable reasons. State v. Lord, 161 Wn.2d 276,283-84,165 P.3d 1251 (2007).

A trial court abuses its discretion when it relies on unsupported facts, takes a view that no

reasonable person would take, applies an incorrect legal standard, or bases its ruling on an

erroneous legal view. Id at 284.

       Mr. Patten argues that because the State did not charge him with robbery, like Ms.


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No. 31662-9-III
State v. Patten


Zornes, evidence relating to the robbery should have been excluded under 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."

       When a party seeks to admit evidence of prior misconduct, "4 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.'" State v. Gresham, 173 Wn.2d 405, 421,

269 P.3d 207 (2012) (quoting State v. Vy Thang, 145 Wn.2d 630,642,41 P.3d 1159

(2002)).

       The trial court in Mr. Patten's case allowed the evidence in question to show

"motive, flight, intent, plan and identity." RP at 33. The court further reasoned, "I do

have and have read the case that does talk about a defendant committing different crimes

are inadmissible to show bad character, but when it is involved in the entire planning,

preparation, identity and absence of mistake and give the jury an entire idea, the Court is

going to allow that scenario of how it went down." RP at 34. Finally, the court


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No. 31662-9-II1
State v. Patten


concluded, "So at this time, all of those would be included in there under [ER] 404(b) not

to show proof of character or bad character, but opportunity, intent, plan, identity and

flight would all be included in that." RP at 34.

       "[O]ur courts have previously recognized a 'res gestae' or 'same transaction'

exception, in which 'evidence of other crimes is admissible "[t]o complete the story of the

crime on trial by proving its immediate context of happenings near in time and place.'" "

State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995) (second alteration in original)

(quoting State v. Tharp, 27 Wn. App. 198,204,616 P.2d 693 (1980), aff'd, 96 Wn.2d

591,637 P.2d 961 (1981)). Here, the evidence was part of the res gestae of the offense

and the trial court conducted the proper analysis in determining its admissibility: There

was no question but that the person who committed the assault was present during the

initial theft through the time when the vehicle was parked in the garage. The initial theft

was relevant on the issue of whether the person who committed the assault knew that the

items belonged to the driver or whether they were stolen. This evidence prevented Mr.

Patten from arguing that his use of the knife was due to a mistaken belief that he was

protecting Ms. Zornes' property. The evidence of flight and throwing stereos out of the

white vehicle is likewise relevant to show absence of mistake. The evidence of the white

vehicle with a flat back tire driving erratically and hiding in Mr. Clark's garage is relevant


                                              6

No. 31662-9-III
State v. Patten


to identity, i.e., whether the white vehicle associated with the parking lot assault was the

same white vehicle that later was located and searched in the garage. The court correctly

admitted the evidence under the res gestae or context exception previously discussed.

The court impliedly found that the probative value outweighed the prejudicial effect.

While the court did not expressly address probative value and prejudicial effect, this is

not reversible error if the record shows the trial court adopted a party's arguments. State

v. Asaeli, 150 Wn. App. 543, 576 n.34, 208 P.3d 1136 (2009).

       ER 404(b) is not designed '" to deprive the State of relevant evidence necessary to

establish an essential element of its case.'" State v. Foxhoven, 161 Wn.2d 168, 175, 163

P.3d 786 (2007) (quoting State v. Lough, 125 Wn.2d 847, 859, 889 P.2d 487 (1995)).

Nor is ER 404(b) designed to deprive the State of relevant evidence necessary to refute a

defense to a crime. Given all, the trial court did not abuse its discretion by admitting

evidence of the events leading up to and directly after the assault.

       Ine{foctive Assistance ofCounsel. The next issue is whether Mr. Patten was denied

effective assistance of counsel. He contends defense counsel failed to object to "a [large]

quantity of inadmissible evidence." Br. of Appellant at 23.

       To prove ineffective assistance of counsel, a defendant must show that (1) his

counsel's performance was deficient, and (2) the deficient performance prejudiced him.


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No. 31662-9-III
State v. Patten


Stricklandv. Washington, 466 U.S. 668, 687-88, 694,104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). A defendant alleging ineffective assistance must overcome'" a strong

presumption that counsel's performance was reasonable.'" State v. Grier, 171 Wn.2d 17,

33,246 P.3d 1260 (2011) (quoting State v. Kyllo, 166 Wn.2d 856, 862,215 PJd 177

(2009)). If counsel's conduct'" can be characterized as legitimate trial strategy or tactics,

performance is not deficient.'" Grier, 171 Wn.2d at 33 (quoting Kyllo, 166 Wn.2d at

863). To show prejudice, the defendant must establish "'there is a reasonable probability

that, but for counsel's deficient performance, the outcome of the proceedings would have

been different.'" Grier, 171 Wn.2d at 34 (quoting Kyllo, 166 Wn.2d at 862). A

defendant's failure to prove either prong ends our inquiry. State v. Hendrickson, 129

Wn.2d 61, 78, 917 P.2d 563 (1996). Mr. Patten fails to meet his burden here.

       Mr. Patten makes wide-sweeping arguments about defense counsel's failure to

object to evidence, but does not provide the necessary specificity to review his argument.

Such threadbare allegations do not meet the Strickland standard to establish ineffective

assistance of counseL If the alleged failures to object concern the properly admitted

context evidence described above, Mr. Patten's argument fails. Nevertheless, because the

overwhelming evidence supports the jury's finding that Mr. Patten committed second

degree assault, he cannot establish the prejudice prong of the Strickland test. Thus, in


                                             8

No. 31662-9-111
State v. Patten


either case, Mr. Patten's ineffective assistance of counsel claim fails.

       We affirm.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                           Lawrence-Berrey, J

WE CONCUR: 





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