    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                         No. 63869-6-1           2s*    m

                      Respondent,
                                                         DIVISION ONE
              V.                                                                 3a>   f/jpiL,;
                                                         UNPUBLISHED OPINION i~'"'
JOSEPH NJUGUNA NJONGE,
                                                                                oo     a:<:

                     Appellant.                          FILED: January 12, 2015         ~


      Appelwick, J. — Njonge appeals his conviction for second degree murder.1 He

asserts that the trial court improperly allowed the State to use evidence of the victim's

character to rebut a component of his defense theory. He argues that his counsel was

ineffective for failing to object to the allegedly improper character evidence. He contends

that the court erred in admitting evidence of his prior bad acts to show his criminal

propensity. He argues that the court wrongly allowed the State to use evidence of his

prior bad acts to impeach his credibility. We affirm.

                                          FACTS


      On March 18, 2008, 75 year old Jane Britt visited her husband, Frank Britt, at the

Azalea Unit in the Garden Terrace nursing home.2 Frank suffered from Parkinson's

disease, and Jane visited him almost daily. After her March 18 visit, Jane left Garden

Terrace in the early evening.

       Jane's body was found the next day in the locked trunk of her car. Her cause of

death was asphyxia due to strangulation with blunt force injuries to the head and neck.

       1 This case comes to us on remand from the Washington Supreme Court.
Pursuant to the Supreme Court's decision in State v. Nionqe,          Wn.2d      , 334 P.3d
1068 (2014), Njonge's public trial issues are not before us. We consider only his
remaining evidentiary challenges and claim of ineffective assistance of counsel.
      2Going forward, we use the Britts' first names for clarity. No disrespect is intended.
No. 63869-6-1/2




Additional injuries, likely occurring at or around the time of death, included injuries to her

face, knee, hands, and wrists. Her neck was broken. Her fingernails were bloody, broken,

and torn. Jane was fully clothed except for her shoes. The trunk was empty other than

her body. The wheelchair normally located in Jane's trunk was discovered in the wooded

area on the grounds of Garden Terrace, along with her garage door opener.

       Police located deoxyribonucleic acid (DNA) under Jane's fingernails.           Several

Garden Terrace employees, including Joseph Njonge, voluntarily provided DNA samples

to the police. The DNA located under Jane's fingernails matched Njonge's.

       Njonge, a 24 year old nursing assistant, worked the evening shift at Garden

Terrace. He had responsibility for the care of several patients, often including Frank. On

the evening Jane was killed, Njonge worked from 2:30 p.m. to 10:30 p.m. He was

assigned to care for Frank that evening.

       The State charged Njonge with first degree murder. At trial, Njonge testified on his

own behalf. He stated that on March 18, 2008, Jane scratched his hair while they worked

together to assist Frank in the restroom.        He also testified that Jane occasionally

scratched his head or ran both of her hands through his hair, sometimes while they were

in the facility dining room. According to Njonge, Jane "used to say I have kinky hair."

       The State elicited testimony from two witnesses to rebut Njonge's explanation for

the presence of his DNA evidence under Jane's fingernails. Sandra Colvin, the nurse

who supervised Njonge's shift the night of Jane's death, testified that she had never seen

Jane run her hands through Njonge's hair or otherwise touch or hug staff.              Jane's

granddaughter, Sarah Crass, explained that Jane was not a "touchy-feely grandma" and
No. 63869-6-1/3




did not touch the hair of her family members. Crass stated that she had never heard her

grandmother use the word "kinky."

         The State also presented several pieces of evidence to suggest that Njonge had

a motive to kill Jane. First, the State showed that in March 2008—shortly before her

death—Jane complained to Garden Terrace about the care of her husband's teeth. A

Garden Terrace supervisor informed the staff, including Njonge, of that complaint.

Second, the State demonstrated that Njonge won an employee recognition award in

November 2007.       Although one of the forms nominating Njonge for the award was

purportedly signed by Jane, a forensic handwriting expert testified that Jane did not sign

it. Third, the State showed that police found Frank's Costco card in Njonge's wallet upon

arrest. Njonge admitted that he had taken the card without Frank's permission and tried

to use it.


         The jury found Njonge guilty of the lesser included offense of second degree

murder. He appeals.

                                       DISCUSSION


         Njonge makes several evidentiary challenges. We review a trial court's evidentiary

rulings for abuse of discretion. Cox v. Spanqler. 141 Wn.2d 431, 439, 5 P.3d 1265, 22

P.3d 791 (2000). A trial court has "broad discretion in ruling on evidentiary matters and

will not be overturned absent manifest abuse of discretion." Sintra, Inc. v. City of Seattle,

131 Wn.2d 640, 662-63, 935 P.2d 555 (1997).

    I.   Character Evidence Under ER 405

         Njonge argues that the State presented improper evidence of Jane's character to

rebut Njonge's explanation for the DNA found under his fingernails.          Specifically, he
No. 63869-6-1/4




asserts that the trial court admitted character evidence by an unacceptable method of

proof in allowing Colvin and Crass to testify about specific instances of conduct under ER

405(b).

         The State contends that Njonge waived this error by failing to properly object at

trial. Njonge objected to the testimony on the basis of relevance and prejudice. He did

not object on ER 405 grounds. An objection made on other grounds does not preserve

an evidentiary error for review. See State v. Gulov. 104 Wn.2d 412, 422, 705 P.2d 1182

(1985) ("An objection which does not specify the particular ground upon which it is based

is insufficient to preserve the question for appellate review."). We decline to review this

challenge. See RAP 2.5(a) ("The appellate court may refuse to review any claim of error

which was not raised in the trial court.").

   II.    Ineffective Assistance of Counsel


          In the alternative, Njonge asserts that his trial counsel was ineffective for failing to

object to Colvin's and Crass's testimony on ER 405 grounds.

         We review de novo a claim of ineffective assistance of counsel. State v. Sutherbv,

165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on an ineffective assistance claim,

a defendant must show that (1) counsel's performance fell below an objective standard

of reasonableness based on consideration of all the circumstances and (2) the deficient

performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984).           More specifically, an appellant claiming ineffective

assistance based on counsel's failure to object to the admission of evidence must show:

(1) an absence of legitimate tactical reasons for the failure to object; (2) that an objection

to the evidence would likely have been sustained; and (3) a reasonable probability that
No. 63869-6-1/5




the result of the trial would have been different had the evidence not been admitted. State


v. Saunders. 91 Wn. App. 575, 578, 958 P.2d 364 (1998).

       ER 405 establishes the acceptable methods of proving character. See Robert H.

Aronson and Maureen A. Howard, The Law of Evidence in Washington §§ 503.1 -503.3

(5th ed. 2013). Njonge maintains that Colvin's and Crass's testimony violated ER 405(b).

Under ER 405(b), specific instances of conduct may be offered as character evidence

where that character is an essential element of a charge, claim, or defense.        Njonge

asserts that the testimony here was improper, because Jane's character was not an

essential element of the charge or defense.

       Njonge protests that the State improperly offered specific instances of conduct as

to Jane's character. But, it was Njonge who introduced evidence of specific instances of

conduct.3 The State did not. Rather, the State elicited testimony that Jane was not

"touchy-feely" with her family or the Garden Terrace staff.

       Njonge asserted a defense predicated on Jane's character. The State was thus

entitled to offer evidence of Jane's character in rebuttal. See ER 404(a)(2). To the extent

that the testimony constituted character evidence, it was properly admitted under ER

405(a).4 Njonge cannot show that an objection on ER 405 grounds would have been

sustained.   He cannot show counsel's performance was deficient.            His ineffective

assistance claim fails.




       3Whether Njonge's evidence was properly admitted is not at issue here.
       4 "In all cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation." ER 405(a).
No. 63869-6-1/6



   III. Evidence of Prior Bad Acts Under ER 404(b)

       Njonge contends that the trial court erred in admitting evidence of the dental care

complaint, the forged nomination form, and the Costco card to suggest that he had a

motive to kill Jane.


       Evidence of other crimes, wrongs, or acts is inadmissible to prove character and

show action in conformity with it. ER 404(b); Carson v. Fine. 123 Wn.2d 206, 221, 867

P.2d 610 (1994). But, such evidence may be admissible for other purposes, like "proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident." ER 404(b). To admit evidence of other wrongs under ER 404(b),

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 ofthe crime charged;
and (4) weigh the probative value against the prejudicial effect. State v. Thang, 145
Wn.2d 630, 642, 41 P.3d 1159 (2002). This analysis must be conducted on the record.

State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007). However, the failure to

do so is not fatal if the record is sufficient to provide a basis for appellate review. See,

e.g., State v. Brockob, 159 Wn.2d 311, 348-49, 150 P.3d 59 (2006); State v. Hepton, 113

Wn. App. 673, 688, 54 P.3d 233 (2002).

       Njonge asserts that the trial court failed to balance the necessary factors on the
record to admit the evidence under ER 404(b). The trial court did not conduct the full four

factor analysis on the record. However, the record is sufficient for us to conclude thatthe

evidence was properly admitted.
No. 63869-6-1/7




       First, the State established by a preponderance of the evidence that the

misconduct occurred. The State offered prima facie evidence of each incident: a Garden

Terrace nurse testified that Jane made the dental care complaint and Njonge was aware

of it; the State's handwriting expert testified that Jane's signature was forged on the

nomination form through which Njonge received a cash award; and, detectives testified

that they found Frank's Costco card in Njonge's wallet. The first factor is satisfied.

       As for the second factor, the record is clear: the evidence was offered for proof of

motive. ER 404(b) explicitly identifies motive as a permissible purpose.

       The evidence is also relevant to prove an element of the crime charged. Each

piece of evidence involved bad conduct that was somehow connected to Jane or Frank.

This established a motive for Njonge to kill Jane: keeping his job. Motive is "particularly

relevant" to premeditation. State v. Pirtle. 127 Wn.2d 628, 644, 904 P.2d 245 (1995).

And, premeditation is an essential element of first degree murder. RCW9A.32.030(1 )(a);

see also State v. Vangerpen. 125 Wn.2d 782, 791, 888 P.2d 1177(1995).

       Finally, we find that the evidence was not unduly prejudicial. Njonge singles out

the Costco card, arguing that it was more prejudicial than probative because the State

did not establish that Jane knew Njonge had the card. But, the card must be viewed in

the context of the evidence together. Like most evidence, these incidents are prejudicial.

See State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987). However, their probative

value is clear. Collectively, they establish a motive for Njonge to kill Jane. The evidence

satisfies the four factor test under ER 404(b).

       Njonge further argues that the forged nomination form should have been excluded,

because the State could not show that Njonge committed the forgery. For evidence of a
No. 63869-6-1/8




wrongful act to be admissible under ER 404(b), the "necessary connection between the

defendant and the prior act must be established by a preponderance of the evidence."

State v. Norlin. 134 Wn.2d 570, 577, 951 P.2d 1131 (1998). The State's handwriting

expert could not conclusively determine that Njonge forged the form. Nonetheless, the

evidence demonstrates a sufficient connection between Njonge and the forged form. The

form submitted under Jane's name purported to praise Njonge's work performance. But,

Jane did not sign the form. According to the handwriting expert, there were "indications

that [Njonge] wrote the award form" and characteristics on the form that are similar to Mr.

Njonge's handwriting characteristics. The form resulted in Njonge receiving a cash prize.

Nothing in the record suggests that anyone but Njonge benefited from the forged

document. On this record, the trial court could conclude by a preponderance that there

was a connection between Njonge and the forged document.

       The trial court did not abuse its discretion in admitting the State's ER 404(b)

evidence.


   IV. Impeachment Under ER 608

       Njonge argues that the trial court erred in admitting evidence of his prior

misconduct under ER 608. The State responds that Njonge failed to preserve this issue

for review. We agree.

       The State moved in limine to offer evidence that Njonge stole a diamond ring, a

painting, and a credit card from Garden Terrace as specific instances of conduct to attack

his credibility under ER 608(b). Njonge did not object on ER 608 grounds. Instead, he

objected that the evidence was inadmissible under ER 609. The trial court ruled that the

evidence could be used to impeach Njonge's credibility if he testified. The State raised


                                                8
No. 63869-6-1/9




the issue once again before introducing the evidence. Njonge did not object and told the

court "I have no issues." He later declined a limiting instruction related to this evidence.

Njonge did not preserve the issue for appellate review.

       We affirm.




WE CONCUR:




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