                                                                                                               FILED
                                                                                                               OF APPEALS
                                                                                                            rn mum u
                                                                                                     20114 APR 29
                                                                                                                  Am 8: 43




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

STATE OF WASHINGTON,                                                              No. 43816 -0 -II


                                       Respondent,                        UNPUBLISHED OPINION


          v.



DAMON C. McGRAW,


                                       Appellant.


          BJORGEN, J. —       A jury returned verdicts finding Damon C. McGraw guilty of witness

intimidation and felony harassment. The jury also returned a special verdict finding the

aggravating factor that McGraw committed witness intimidation against a law enforcement

officer while the officer was performing his official duties. McGraw appeals his convictions,

asserting that the trial court erred by admitting his post -arrest statements at trial. Because the

trial   court erred   by   admitting   prejudicial   propensity     evidence   contrary to ER 404( b),   we reverse




McGraw' s      convictions and remand        for   a new   trial.
No. 43816 -0 -II



                                                      FACTS


        On the morning of December 15, 2011, Pierce County Sheriffs Deputy Seth Huber went

to the Pierce County Superior Court to testify at a hearing at which McGraw was appearing as a

defendant. Huber arrived in the courtroom before the scheduled hearing, sat in the front row,

and began talking with Deputy Prosecutor Mark Sanchez. The Honorable Judge Ronald

Culpepper, his judicial assistant, and a court reporter were also present in the courtroom.


McGraw entered the courtroom while Huber was taking his seat. When McGraw walked past

Huber, Huber heard McGraw mumble something. McGraw sat in the defendant' s chair, turned

his chair to face Huber, and began staring at him. McGraw then stood up and walked back out of

the courtroom. As McGraw passed Huber, Huber heard McGraw mumble something that

included the   phrase "   fuck   you."   Report of Proceedings ( RP) at 14. Huber stated that before


exiting the courtroom, McGraw "turned around and made a configuration with his hand of a gun

pointed at me, and made a        shooting    motion."   RP at 14. Huber also stated that after McGraw


exited the courtroom, McGraw looked at him through a diamond- shaped window on the exit

door   and made a "   knifing    motion to   his throat." RP at 15. Huber further stated that he heard


McGraw tell him, " You       are a   fucking   dead   man,"   and that McGraw threatened to kill Huber' s


family. RP at 15. Huber reported the incident to court security. McGraw was arrested after his

hearing   concluded.
No. 43816 -0 -II



         On December 16, 2011, the State charged McGraw with witness intimidation' and felony

harassment.2 The State also alleged the aggravating factors that McGraw committed his crimes



1 RCW 9A.72. 110( 1)( a), the statutory provision under which the State charged McGraw,
provides, "     A person is guilty of intimidating a witness if a person, by use of a threat against a
current or prospective witness, attempts            to ... [    i] nfluence the testimony of that person."

2
    RCW 9A.46. 020( 1) provides:
          1) A person is guilty of harassment if:
                 a) Without lawful authority, the person knowingly threatens:
                     i)   To cause bodily injury immediately or in the future to the person
         threatened or to any other person; or
                     ii) To cause physical damage to the property of a person other than the
         actor; or

                     iii)   To subject the person threatened or any other person to physical
         confinement or restraint; or

                     iv) Maliciously to do any other act which is intended to substantially
         harm the person threatened or another with respect to his or her physical or mental
         health or safety; and
                     b)     The person by words or conduct places the person threatened in
         reasonable         fear that the threat   will   be   carried out. "   Words or conduct" includes,
          in addition to any other form of communication or conduct, the sending of an
          electronic communication.




Additionally, RCW 9A.46. 020( 2)( b) provides that harassment is a felony offense where:

          i) The person has previously been convicted in this or any other state of any
          crime    of     harassment,    as   defined in RCW 9A.46. 060, of the same victim or

          members of the victim' s family or household or any person specifically named in
          a no- contact or no- harassment order; (             ii) the person harasses another person under
          subsection ( 1)( a)( i) of this section by threatening to kill the person threatened or
          any    other person; (     iii) the person harasses a criminal justice participant who is
          performing his or her official duties at the time the threat is made; or ( iv) the
          person harasses a criminal justice participant because of an action taken or
          decision made by the criminal justice participant during the performance of his or
          her   official    duties. For the purposes of (b)( iii) and ( iv) of this subsection, the fear
          from the threat must be a fear that a reasonable criminal justice participant would
          have under all the circumstances. Threatening words do not constitute harassment
          if it is apparent to the criminal justice participant that the person does not have the
          present and future ability to carry out the threat.



                                                                 3
No. 43816 -0 -II



against a criminal justice participant while performing official duties.

       Before the start of McGraw' s trial, the trial court asked counsel whether it needed to


conduct a CrR 3. 5 hearing. The State told the trial court that a CrR 3. 5 hearing was unnecessary

because the State was not seeking to admit any of McGraw' s custodial statements. At trial,

Huber testified consistently with the facts as stated above. Sanchez testified that he saw

McGraw   stare at   Huber     and    heard McGraw say, " You' re dead. You' re dead," from outside of


the courtroom; Sanchez did not see McGraw make any threatening gestures. RP at 42, 44, 58.

       Judge Culpepper testified that he did not see McGraw make any threats or threatening

gestures on the date of the incident. Judge Culpepper' s judicial assistant, Angela Edwards, and

McGraw' s former defense counsel, Vera Jean, similarly testified that they did not see McGraw

make any threats or threatening gestures on the date of the incident.

        Before the State called Pierce County Sheriff' s Deputy Ronald Carter to testify, defense

counsel raised an issue with the proposed testimony, and the following discussion took place:

                   Defense          I believe that the State is going to call Officer Carter
                               counsel]:

       to discuss what occurred after [ McGraw] was arrested, long after the video, what
       occurred long after the hearing when they came in and arrested Mr. McGraw. I
       think that' s highly prejudicial. I don' t think it shows anything of relevance. I

        mean, we' ve seen everything that there is to see as far as what' s relevant to the
        case.   So, again —
                   Trial   court]:   Is that a part of any element that you have to prove, given the
        fact that —
                   State]:    It shows the Defendant' s anger and animosity towards law
        enforcement.         It' s less than   an   hour   after   the threats   were made.   It goes to his
        state of mind. I do believe that that will show credibility as to he was making the
        threats before, and as soon as the officers made contact again he picked right back
        up. They were mostly insulting rather than, you know, threatening to kill but his
        animosity toward law enforcement was very clear and it is close in time, it' s the
        same incident, and occurred right after the hearing concluded.

                   Defense         Again, here we' re talking about something that it' s
                                counsel]:

        almost like saying because he behaved this way an hour afterwards he must have


                                                              4
No. 43816 -0 -II



         been doing what we say he was doing at the time of the particular incident. I find
         that to be,        highly prejudicial like I indicated already. I don' t believe it' s
                       again,

         relevant, and if that was going to be a relevant issue it' s something that should
         have been briefed. We should have had more time to discuss that particular issue.
         That wasn' t done, and I think at this stage of the game it' s really not probative of
         anything. It' s more prejudicial than probative.
                   Trial   court]:   Well, I tend to disagree in the sense that the close proximity
         in time does make it more germane than it probably would have been had it been
         the next day or a week later, but because of the close proximity in time I think it is
         relevant.




RP at 66 -67.


         Following this discussion, Carter testified that when he arrested McGraw, McGraw made

disparaging remarks toward him and the other arresting officers. When the State asked Carter to

relay McGraw' s      disparaging     remarks;   defense    counsel objected,            stating, "[ T] here has been no


foundation laid with respect to whether or not this was before [ McGraw] was advised of his

rights of what   the   situation was."    RP    at   70 -71. The trial court overruled defense counsel' s


objection, stating that it was an issue for cross -examination. Carter then testified that McGraw

called   the arresting   officers " pigs" and " white      devils." RP       at   71.    Carter further testified that,


while officers were escorting McGraw to jail, McGraw told the officers that they " should all be

killed." RP at 75. Defense counsel again objected and the trial court overruled the objection.


Pierce County Sheriff s Deputy Jesus Villahermosa similarly testified that McGraw had stated

that the   officers were racist and     that   they " should     all   be dead."    RP at 79 -80.


           The jury returned verdicts finding McGraw guilty of witness intimidation and felony

harassment and returned a special verdict finding that McGraw committed witness intimidation

against a law enforcement officer while the officer was performing official duties. McGraw

timely appeals his convictions.




                                                             5
No. 43816 -0 -II



                                                      ANALYSIS


                                     I. OTHER ACTS EVIDENCE - ER 404( 3)


       McGraw contends that the trial court abused its discretion by allowing the State to elicit

testimony regarding his post -arrest statements to Carter and Villahermosa. Because evidence of

McGraw' s statements to the arresting officers was highly prejudicial character evidence that was

inadmissible   under      ER 404( b), we reverse McGraw' s convictions and remand for a new trial.


        We review a trial court' s decision to admit evidence subject to ER 404( b) for an abuse of

discretion. State    v.    Fisher, 165 Wn.2d 727, 745, 202 P. 3d 937 ( 2009). Evidence of a person' s


other acts is never admissible to prove the character of the person to show that he acted in


conformity   with    his   character on a specific occasion.      ER 404( b).     However, such evidence may

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).


        Before admitting evidence of the defendant' s other acts, the trial court must ( 1) find by a

preponderance of      the    evidence   that the   other acts occurred, (    2) identify the purpose for which the

evidence will   be admitted, ( 3) determine that the         evidence   is   relevant   to   prove an element of a




charged crime, and ( 4) weigh the probative value of the evidence against the danger of unfair

prejudice.   State   v.   Kilgore, 147 Wn.2d 288, 292, 53 P. 3d 974 ( 2002).             Generally, the trial court

must conduct this analysis on the record. State v. McCreven, 170 Wn. App. 444, 458, 284 P. 3d

793 ( 2012), review denied, 176 Wn.2d 1015, 297 P. 3d 708 ( 2013).


        As an initial matter, the State' s response brief fails to respond to any of McGraw' s.

arguments    regarding ER 404( b),        instead asserting that the evidence was admissible because it

was relevant under         ER 401   and not   unduly   prejudicial under     ER 403.     To the   extent   that the State
No. 43816 -0 -II



ignores McGraw' s ER 404( b) claim because it believes McGraw has not preserved his challenge

on this ground for failing to reference ER 404( b) when objecting at trial, it is incorrect. Our

Supreme Court has held that a nonspecific objection based on " prejudice" will preserve an ER


404( b) challenge for appeal " because it suggests the defendant was prejudiced by the admission

of [other acts evidence]."           State   v.   Mason, 160 Wn.2d 910, 933, 162 P. 3d 396 ( 2007). Here,


McGraw clearly and repeatedly objected to the admission of his post -arrest statements on the

basis that the evidence was prejudicial. Accordingly, his claim that the trial court admitted

evidence of his other acts in violation of ER 404( b) is preserved for our review.

        Although the trial court did not conduct an ER 404( b) analysis on the record before


admitting evidence of McGraw' s statements to arresting officers, the record demonstrates that

the State       sought admission of     the       evidence   to   show   McGraw' s "   anger and ...   animosity toward

law   enforcement,"           thus making Huber' s accusations that McGraw threatened him more
            3
credible.        RP at 66. Put simply, the State' s purpose in seeking the admission of the evidence

was ( 1) to show McGraw' s character was one of animosity against law enforcement officers, and

 2) to show that McGraw acted in conformity with his character when he threatened Huber.

However, ER 404(b) was designed " to prevent the State from suggesting that a defendant is

guilty because he or she is a criminal -
                                       type person who would be likely to commit the crime

charged."        State   v.   Foxhoven, 161 Wn.2d 168, 175, 163 P. 3d 786 ( 2007). Because the State




3 On appeal, the State similarly argues that evidence of McGraw' s " derogatory and inappropriate
statements at the time of arrest tend to demonstrate his perception and beliefs as they relate to
law enforcement officers." Br. of Resp' t at 8.
No. 43816 -0 -II



sought evidence of McGraw' s post -arrest statements for this very purpose, the trial court erred

by admitting it.

                                 II. THE ERROR WAS NOT HARMLESS


       The State argues that even if the trial court erred by admitting evidence of McGraw' s

post -arrest statements through the testimony of Carter, any error was harmless because McGraw

failed to object to Villahermosa' s similar, but not identical testimony. Although defense counsel

did not again object to the State' s presentation of other acts evidence during Villahermosa' s

testimony, we do not hold that he thereby failed to preserve this error for appeal. Defense

counsel made it clear to the trial court prior to either of the officer' s testimony that he was

seeking exclusion of McGraw' s post -arrest statements on the basis that such evidence was highly

prejudicial. Moreover, Villahermosa' s testimony occurred directly after Carter' s testimony,

during which the trial court overruled defense counsel' s repeated objections. Under these

circumstances, defense counsel could have deemed it futile to object again on grounds that the


trial court rejected just moments before. See, e. g., State v. Cantabrana, 83 Wn. App. 204, 208 -

09, 921 P. 2d 572 ( 1996) ( failure   to properly object maybe excused where it would have been a

useless endeavor).   The defense' s objection to McGraw' s post -
                                                                arrest statements extended to


Villahermosa' s testimony.

                                             CONCLUSION


        Evidence that McGraw      called officers " pigs"   and " white   devils," and that all officers


should be killed was clearly prejudicial and the State failed to offer any legitimate purpose for

the admission of the evidence. Instead, the State essentially argued for the admission of

McGraw' s post- arrest statements to show . propensity for threatening law enforcement
                                          his



                                                    8
No. 43816 -0 -II



officers, a purpose prohibited    by   ER 404( b). Because we reverse McGraw' s conviction on the


ground   that his   post -
                         arrest statements were   inadmissible   under   ER 404( b), we do not address


whether the trial court erred by admitting the statements without first conducting a CrR 3. 5

hearing. We reverse McGraw' s convictions and remand for a new trial.

         A majority of the panel having deteuinined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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