                                                 (:'..... . SUSAN L. CARLSON
                                                        SUPREME COURT CLERK




IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                 )
                                     )
                  Respondent,        )
                                     )     No. 92389-2
V.                                   )
                                     )
FABIAN ARREDONDO,                    )     EN BANC
                                     )
                  Petitioner.        )
                                     )
and                                  )     FILED         MAY O4 2017
                                     )
RUDY MADRIGAL,                       )
                                     )
                  Defendant.         )
________                             )

      FAIRHURST, C.J.-Fabian Arredondo appeals his accomplice liability

convictions of one count of second degree murder and three counts of first degree

assault. A jury found beyond a reasonable doubt that Arredondo, a Nortefio gang

member, drove a vehicle from which his cousin and fellow Nortefio, Rudy Madrigal,

fired gunshots into a vehicle occupied by alleged Surefio gang members. One shot
State v. Arredondo, No. 92389-2

struck the driver, Ladislado Avila, in the head, and he later died at the hospital as a

result of his gunshot wound.

      The Court of Appeals affirmed. State v. Arredondo, 190 Wn. App. 512, 360

P.3d 920 (2015). We granted Arredondo's petition for review on only two issues,

both of which were trial court rulings on motions in limine. State v. Arredondo, 185

Wn.2d 1024, 369 P.3d 502 (2016). First, the trial court allowed the State to introduce

ER 404(b) evidence linking Arredondo to an uncharged February 9, 2009 drive-by

shooting. Second, the trial court barred Arredondo from cross-examining the State's

key witness, Maurice Simon, about Simon's past mental health diagnoses, as well as

past alcohol and drug use. Simon would later testify that Arredondo admitted his

role in the shooting to him while they shared a jail cell.

      In neither instance did the trial court commit reversible error. We affirm.

        I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A.    Factual background

      Late in the evening of December 4, 2009, Arredondo and Madrigal attended

a party in Toppenish along with other Nortefios. Surefios Miguel Vasquez, Avila,

and Gabriel Rodarte attended the party as well. The local Nortefio and Surefio gangs

have a history of bad blood. A fistfight ensued shortly after the Surefios arrived.

Vasquez was involved and appeared to get the worst of it. Once the fistfight ended,

party goers dispersed. Rodarte, Vasquez, and Avila left together, along with


                                           2
State v. Arredondo, No. 92389-2

Maximina Castillo, to whom they offered a ride as they were leaving. Of these four,

only Rodarte and Castillo testified at trial. 1

       Shortly after leaving the party, Avila and his passengers noticed a blue Honda

with tinted windows headed in the opposite direction of their car. The Honda made

a U-turn and began to follow them. This eventually led to a high speed chase. The

chase terminated when someone in the Honda fired shots into Avila's car. The

Toppenish Police Department received a shots fired call at 1: 10 a.m. on December

5, 2009. One of the shots struck Avila in the head. He lost control of the vehicle and

crashed into a tree. Avila later died at the hospital from his gunshot wound. His

passengers were not seriously injured. Neither Rodarte nor Castillo could identify

the Honda's occupants, other than to say they looked like two males.

       On December 12, 2009, the Toppenish police recovered a vehicle matching

the Honda used in the shooting. It was parked between two businesses on a gravel

drive in Wapato and had been wiped clean of all incriminating evidence. The police

were unable to recover fingerprint, deoxyribonucleic acid, or any other physical

evidence from the vehicle.

       Arredondo was arrested that same day based on statements from others who

attended the party. They indicated Arredondo drove the Honda during the shooting.

In the days following his arrest, Arredondo shared a cell with Simon in the Yakima


       1
           Avila was killed in the events to follow, and Vasquez was not available to testify.
                                                  3
State v. Arredondo, No. 92389-2

County jail. Simon later claimed that during their time in the cell, Arredondo

admitted his role in the shooting.

B.    Motions in limine

      Prior to the trial, Arredondo made a motion in limine to bar evidence the State

sought to introduce pursuant to ER 404(b) of Arredondo' s involvement in a previous

drive-by shooting with suspected Nortefio/Surefio gang ties. He was never charged

in the incident. Following offers of proof, the trial court ruled the State could present

testimony from Detectives Dustin Dunn and Jaban Brownell relating to this incident

for noncharacter purposes. It did so after finding that the evidence had probative

value and that the "probative value outweighs the prejudicial effect." Suppl. to Oct.

10, 2011 Verbatim Report of Proceedings (SVRP) at 26-27.

      Arredondo also made a motion in limine for the trial court to determine what

scope limitations would apply to his cross-examination of Simon regarding Simon's

previous mental health diagnoses and past drug and alcohol use. This motion

followed a pretrial interview in which Simon indicated that he had previously been

diagnosed with posttraumatic stress disorder (PTSD) and other mental health

limitations. Simon also indicated in the interview that he had been an alcoholic and

drug abuser in the past.

      The court said it would withhold its ruling on the motion until it had a chance

to "listen to [Simon] outside the presence of the jury." SVRP at 9. When that


                                            4
State v. Arredondo, No. 92389-2

occurred, Simon described his past mental health diagnoses, short-term memory

limitations, and previous drug and alcohol use. Simon also indicated that none of

these issues would affect his testimony regarding Arredondo' s admission. He further

indicated that he had not used drugs or alcohol in the prior six to eight months. The

court then barred inquiries during cross-examination into Simon's mental health or

his past substance abuse because Simon did not appear currently impaired and

evidence associated with previous limitations would be irrelevant, not probative, and

highly prejudicial.

C.    Arredondo's trial

      Arredondo testified in his own defense and indicated he had no role in the

December 5, 2009 shooting. He claimed he left the party with his friend Gabriel

Limone in a white Chevrolet Impala and that they went directly to his uncle's house

from the party. Limone was not available to testify to confirm this account. Effrain

Arredondo, Arredondo's uncle, was available. He testified that his nephew arrived

at his house between 12:00 and 12:15 a.m. the morning of December 5, 2009 and

did not leave again until 9:30 a.m. that same morning.

      The State presented little evidence directly linking Arredondo to the shooting.

As the trial court noted, the case had a "strong undercurrent of intimidation . . . .

Many of the witnesses are -- are visibly afraid to be here and to be testifying." 3

Verbatim Report of Proceedings (VRP) (Oct. 13, 2011) at 405. For example,


                                          5
State v. Arredondo, No. 92389-2

Arredondo refused to say who at the party had firearms because it would be

dangerous for him to "talk against another Norteno." 6 VRP (Oct. 19, 2011) at 789-

90, 793.

      Maria Marquez Vevallos was one of the only people to testify who had

attended the party. She indicated that her brother, Alberto Marquez, owned a blue

Honda Accord and he indicated that night that he lent it to some "homeys." 4 VRP

(Oct. 17, 2011) at 544-45. She believed Arredondo was the "homey" her brother

referenced. Id. at 548. She also indicated she had not seen the vehicle since the party.

Her brother was not available to testify.

      Consistent with an offer of proof previously provided by the State, Detectives

Dunn and Brownell testified that on February 9, 2009, they were dispatched to the

scene of a drive-by shooting in a known Surefio gang neighborhood. The victim

claimed the shooting came from a vehicle resembling a Mercedes. Dunn located a

.38 caliber spent shell casing at the scene. Two weeks later, Community Corrections

Officer (CCO) Michael Hisey and Probation Officer Jim Stine visited Arredondo at

his home regarding an unrelated matter. Upon arriving, they noticed a silver

Mercedes. They located keys to the vehicle in Arredondo' s pocket and, upon

searching the vehicle, found a .3 8 caliber spent shell casing in the car. The

Washington State Patrol Crime Laboratory confirmed that the shell casing in the




                                            6
State v. Arredondo, No. 92389-2

Mercedes matched the one that Dunn recovered at the scene of the February 9, 2009

shooting and that both casings were fired from the same weapon.

      Before Officer Dunn's testimony on the February 9, 2009 shooting, the trial

court instructed the jury that his testimony could be used only for purposes of"issues

of identity and motive and intent" and could not be used to determine if Arredondo

"acted in a similar fashion on February the 9th of 2009 to what he's alleged to have

done on December the 5th of 2009." 4 VRP at 466. Similarly, prior to CCO Hisey's

testimony, the court instructed the jury to "consider testimony relating to that alleged

event [as] appl[ying] equally to this witness's testimony." Id. at 479. Finally,

following the trial, the court issued written jury instructions to consider this evidence

only for purposes of defendant's "alleged intent, motive and/or identity" and not for

any other purpose. Clerk's Papers (CP) at 63. The trial court asked whether

Arredondo had any objections to this written jury instruction on multiple occasions.

Arredondo indicated he had none.

      Simon told the jury that he and Arredondo shared time in a cell together and

during that time, Arredondo admitted his role in the December 5, 2009 drive-by

shooting. Simon's testimony included details he would not otherwise have reason to

know, including the fact that Arredondo used a Honda Accord that he wiped down

before ditching, that his uncle would provide him an alibi for that evening, and that

"he wouldn't have been in there if it weren't for his stupid cousin who had ran his


                                            7
State v. Arredondo, No. 92389-2

mouth in front of a couple people who ended up reporting it." 5 VRP (Oct. 18, 2011)

at 573. Simon also testified that Arredondo disclosed the names of some of the

victims and others present at the party who Arredondo was concerned may implicate

him in the shooting. Both Simon and Detective Brownell confirmed that Simon

approached law enforcement with this information. They did not seek him out.

      The jury returned a guilty verdict on all charges: Avila's second degree

murder count and the first degree assault count on Vasquez, Rodarte, and Castillo.

The trial court issued a judgment and sentence consistent with this verdict.

D.    Subsequent procedural history

      Arredondo appealed several rulings to the Court of Appeals, including

whether the trial court's holding allowing introduction of evidence of the prior drive-

by shooting was reversible error and whether the trial court's ruling barring cross-

examination into Simon's mental health and past drug use was a violation of

Arredondo's confrontation right. See CONST. amend VI. In a published decision, the

Court of Appeals upheld the trial court on all counts. Arredondo, 190 Wn. App. at

512. We granted review on only the ER 404(b) and cross-examination issues. Order,

State v. Arredondo, No. 92389-2 (Wash. Apr. 29, 2016).




                                           8
State v. Arredondo, No. 92389-2

                                         II. ISSUES 2

       A.     Did the trial court abuse its discretion in allowing the State to introduce

evidence of Arredondo's involvement in the February 9, 2009 drive-by shooting?

       B.     Did the trial court abuse its discretion when it barred inquiry into

Simon's mental state during cross-examination?

                                       III. ANALYSIS

       The trial court did not abuse its discretion and, therefore, did not commit error

when admitting evidence of the February 9, 2009 drive-by shooting. It reasonably

applied the relevant standard under ER 404(b) in admitting such evidence. Nor did

the trial court abuse its discretion and thereby violate Arredondo's confrontation

right under the Sixth Amendment to the federal constitution when barring questions

into Simon's mental state. It reasonably held the evidence irrelevant, not probative,

and highly prejudicial, consistent with the standards this court articulated in State v.

Darden, 145 Wn.2d 612, 41 P.3d 1189 (2002).

A.     The trial court did not abuse its discretion in admitting evidence of
       Arredondo's involvement in the February 9, 2009 drive-by shooting

       1.     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, 461-62, 285 P.3d 873 (2012) (citing State v.


       2
        Arredondo, in his supplemental brief, raises cumulative error for the first time. This is
improper and in any event is without merit.
                                               9
State v. Arredondo, No. 92389-2

Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)). So long as the trial court

interpreted the rule correctly, we will review its decision to admit or exclude

evidence under ER 404(b) for "an abuse of discretion." State v. Gresham, 173 Wn.2d

405, 419, 263 P.3d 207 (2012) (citing Foxhoven, 161 Wn.2d at 174). "Abuse of

discretion" means "no reasonable judge would have ruled as the trial court did."

State v. Mason, 160 Wn.2d 910,934, 162 P.3d 396 (2007) (citing State v. Vy Thang,

145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). Put another way, to reverse we must

find the decision is '"unreasonable or is based on untenable reasons or grounds."'

Id. at 922 (quoting State v. C.J., 148 Wn.2d 672, 686, 63 P.3d 765 (2003)).

       2.     The trial court reasonably applied ER 404(b)

       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).

       In order for a trial court to admit evidence of past wrongs, ER 404(b) requires

the trial court to

       "( 1) find by a preponderance of the evidence that the misconduct
       occurred, (2) identify the [permissible] 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."




                                          10
State v. Arredondo, No. 92389-2

Gresham, 173 Wn.2d at 421 (quoting Vy Thang, 145 Wn.2d at 642). This analysis

must be conducted on the record, and if the evidence is admitted, a limiting

instruction is required. Foxhoven, 161 Wn.2d at 175. The trial court reasonably

applied each prong on the record and issued appropriate limiting instructions.

Therefore, it did not abuse its discretion.

               a.     First prong: the trial court reasonably determined that the State
                      met the preponderance of the evidence standard

         "The preponderance of the evidence standard requires that the evidence

establish the proposition at issue is more probably true than not true." Mohr v. Grant,

153 Wn.2d 812, 822, 108 P.3d 768 (2005) (citing In re Welfare of Sego, 82 Wn.2d

736, 738 n.2, 513 P.2d 831 (1973)). As with all other prongs, we review the trial

court's first-prong assessment for an abuse of discretion. Gresham, 173 Wn.2d at

419. 3

         Before presenting evidence to the jury, the State presented a proffer to the trial

court that two weeks after a drive-by shooting, a shell casing was found in a

Mercedes in Arredondo' s control matching a casing found in front of a home

targeted in an earlier shooting, the targeted home is in a known Surefio

neighborhood, witnesses indicated a Mercedes-like vehicle was responsible for the



         3
         The relevant standard of review for this or any other prong is not in dispute. Arredondo
concedes it is the "abuse of the court's discretion" standard. Pet. for Review at 13. See State v.
Ashley, 186 Wn.2d 32, 40, 375 P.3d 673 (2016) (unanimous decision applying the abuse of
discretion standard to review of a trial court's finding on the first prong of an ER 404(b) claim).
                                                11
State v. Arredondo, No. 92389-2

earlier shooting, and Arredondo is an admitted Nortefio. Based on these facts, it

would be reasonable for a court to conclude that Arredondo was more "probably"

than not involved in the incident. Mohr, 153 Wn.2d at 822.

       Mere evidence of gang affiliation is not sufficient to meet the State's burden.

State v. Asaeli, 150 Wn. App. 543, 578, 208 P.3d 1136 (2009); State v. Acosta, 123

Wn. App. 424,434, 98 P.3d 503 (2004); United States v. Bradley, 5 F.3d 1317, 1320

(9th Cir. 1993). But the State presented evidence far beyond gang affiliations and

other similarly inconclusive evidence. The State presented significant evidence

unequivocally tying Arredondo's vehicle to the prior shooting directed at Surefios. 4

Therefore, it was reasonable for the trial court to find this evidence sufficient to meet

the preponderance standard. 5




       4
          The dissent asserts the State offered no more than "meager evidence that Arredondo or
another member of his alleged gang could have been" involved in the prior shooting. Dissent at 5.
I disagree. Witnesses to the first shooting indicated the perpetrator used a vehicle "like a
Mercedes." 4 VRP at 468. Arredondo' s uncle testified on direct that he "knows [Arredondo] drives
a Mercedes." 5 VRP at 711. When officers arrived at Arredondo's home, they discovered a
Mercedes in Arredondo' s possession. Upon searching the vehicle, they discovered a spent shell
casing that, according to the Washington State Patrol Crime Laboratory, was fired from the same
weapon as a casing recovered at the scene of the prior shooting. Finally, the prior shooting was in
a known Surefio neighborhood and Arredondo is a self-avowed Nortefio.
        5
          Given the two-week gap between the February 9, 2009 shooting and the subsequent
recovery of the matching shell casing in Arredondo's Mercedes, it may be unreasonable for a court
to find this evidence meets an evidentiary standard higher than preponderance. But it is not
unreasonable to conclude that it is more likely than not that Arredondo's vehicle, and by
implication Arredondo, was involved in the shooting.
                                                12
State v. Arredondo, No. 92389-2

      Although the trial court never specifically referenced the preponderance of the

evidence standard when it weighed the State's proffered evidence, a trial court need

not explicitly do so when performing an ER 404(b) analysis, so long as a finding

that the standard has been met can be implied from a record clearly demonstrating

as much. State v. Stein, 140 Wn. App. 43, 66, 165 P.3d 16 (2007); Asaeli, 150 Wn.

App. at 576 n.34. The trial court record meets this benchmark.

             b.     Second and third prongs: the trial court reasonably identified the
                    relevant noncharacter purpose(s) for which the evidence was to
                    be admitted

      We must guard against using "motive and intent as 'magic passwords whose

mere incantation will open wide the courtroom doors to whatever evidence may be

offered in their names.'" State v. Saltarelli, 98 Wn.2d 358, 364, 655 P .2d 697 (1982)

(quoting United States v. Goodwin, 492 F.2d 1141, 1155 (5th Cir. 1974)). Here, the

trial court did no such thing. It held that the prior incident could be used for motive

and intent because it spoke to "Arredondo's animosity towards people who are of

the Sureno persuasion." SVRP at 26-27. Such evidence would have been particularly

relevant here, where witnesses were unwilling to speak freely. A jury would need to

glean motive and intent through other means.

      Arredondo asserts such evidence is irrelevant to show motive because "the

gang nature of the [December shooting] was never in dispute." Pet'r's Suppl. Br. at

11. This assertion misconstrues what makes evidence relevant. Evidence is


                                          13
State v. Arredondo, No. 92389-2

"relevant" if it makes the existence of a fact of consequence more or less probable

to be true than without the evidence. State v. Lough, 125 Wn.2d 847, 861-62, 889

P.2d 487 (1995) (citing ER 401).

      As the trial court noted, evidence of a prior drive-by shooting is relevant to

assess Arredondo' s culpability in the December shooting because it demonstrates

Arredondo's particular motive in reacting violently toward Avila, Vasquez, Rodarte,

and Castillo for the simple offense of being Surefios at a Nortefio party-i.e., a deep-

seated animosity toward Surefios. This animosity goes beyond the routine friction

between gangs, or even the "history of bad blood" between these particular gangs. 2

VRP (Oct. 12, 2011) at 86.

      Arredondo cites Saltarelli to support his relevancy argument. 98 Wn.2d at

358. But the case is inapposite. In Saltarelli, the State sought to introduce evidence

of a previous rape in order to show motive for a current rape. Id. at 359. As we

pointed out at the time, "[i]t is by no means clear how an assault on a woman could

be a motive or inducement for defendant's rape of a different woman almost 5 years

later." Id. at 365. Therefore, we reasoned that "the evidence seems to achieve no

more than to show a general propensity to rape." Id. But the evidence of the February

9, 2009 shooting was used here to demonstrate Arredondo' s motive and intent in the

later shooting, not Arredondo's propensity to engage in drive-by shootings.




                                          14
State v. Arredondo, No. 92389-2

       While the dissent is correct that evidence of a prior shooting directed at, rather

than by, Arredondo would provide a motive for Arredondo to later target Surefio

gang members, the opposite is also true. Evidence of a past attack by a defendant

toward a victim is admissible pursuant to ER 404(b) if the evidence demonstrates an

ill feeling between the two. State v. Powell, 126 Wn.2d 244, 260-61, 893 P.2d 615

(1995); see State v. Stenson, 132 Wn.2d 668, 702, 940 P.2d 1239 (1997) ("evidence

of quarrels and ill-feeling may be admissible to show motive, and evidence of prior

threats is also admissible to show motive or malice if the evidence is of consequence

to the action." (citing Powell, 126 Wn.2d at 260)). 6 Arredondo's involvement in the

prior shooting demonstrates the highly strained and toxic relationship between local

Nortefio and Surefio gang members and the level of Arredondo's animosity toward

Surefios.

       Arredondo targeted different individuals in the February 9 and December 4,

2009 shootings. But this is of no matter. All victims shared a key common trait-

Surefio gang membership. The level of Arredondo's animosity toward a group of

people, rather than an individual, is equally relevant in establishing motive. See,


       6
         Other jurisdictions have reached similar holdings. See, e.g., Bacchus v. United States, 970
A.2d 269, 274 (D.C. 2009) (defendant's past assault of current victim was admissible to show
defendant's motive or intent in current assault); People v. Dorm, 12 N.Y.3d 16, 19, 903 N.E.2d
263 (2009) (same); United States v. Howard, 692 F.3d 697, 704-05 (7th Cir. 2012) (defendant's
past threat toward current victim was permissible under Federal Rule of Evidence 404(b) to show
motive for attempted murder of victim).



                                                15
State v. Arredondo, No. 92389-2

e.g., State v. Peerson, 62 Wn. App. 755, 776, 816 P.2d 43 (1991) (evidence of

defendant's earlier assaults on marijuana growers was admissible pursuant to ER

404(b) to demonstrate motive for defendant's later assault and murder of other

marijuana growers), review denied, 118 Wn.2d 1012, 824 P.2d 491 (1992); United

States v. Woodlee, 136 F.3d 1399, 1409-10 (10th Cir. 1998) (evidence of defendant's

past refusal to attend an event when he learned persons of '"mixed race' would also

attend" was admissible pursuant to Federal Rule of Evidence 404(b) to demonstrate

defendant's motive in later attacking three African-American men); United States v.

Franklin, 704 F.2d 1183, 1188-89 (10th Cir. 1983) (evidence of defendant's

previous attack on an interracial couple similarly admissible); State v. Davis, 6 Idaho

159, 171-72, 53 P. 678, 682 (1898) (evidence of defendant cattleman's previous

threats and attacks toward sheepherders was admissible to prove motive for alleged

subsequent murder of a sheepherder).

      In addition to motive and intent, the trial court indicated the prior shooting

"goes to show identity" of the perpetrator of the current shooting. SVRP at 27. But

the two incidents do not share a unique modus operandi and are not sufficiently

similar to prove identity. See State v. Smith, 106 Wn.2d 772, 777, 725 P.2d 951

(1986) ('"The method employed ... must be so unique that mere proof that an

accused committed one ... creates high probability that he also committed the act

charged.'" (emphasis omitted) (quoting State v. Laureano, 101 Wn.2d 745,764,682


                                          16
State v. Arredondo, No. 92389-2

P.2d 889 (1984))); see also Foxhoven, 161 Wn.2d at 175-77 (evidence of past acts

of graffiti could be used to prove identity of the perpetrator in the current crime even

though the mediums employed, the styles applied, and the fonts used varied, but only

because all instances contained a unique "tag," or identifier). Nevertheless, the trial

court's reliance on identity is irrelevant. Motive and intent were a sufficient basis to

support introduction of this evidence, and the trial court reasonably concluded that

the prior incident demonstrated both. Arredondo had a deep-seated animosity toward

Surefios. Based on this motive, he acted with the intent to inflict great bodily harm

and/or kill Avila and the occupants of his vehicle. 7 The trial court's finding was not

unreasonable.

       Arredondo argued for the first time during oral argument to this court that the

trial court committed error when it instructed the jury that evidence of the earlier

shooting could be used for both a permissible purpose-motive and intent-and an

impermissible purpose-identity. But Arredondo provides no citation to support this

argument. See State v. Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978) (if a party

does not provide a citation to support an asserted proposition, courts may "'assume

that counsel, after diligent search, has found [no supporting authority]"' (quoting


       7   Motive and intent are often used interchangeably. They have different meanings.
"Motive" speaks to the "cause or reason that moves the will," Tharp, 96 Wn.2d at 597, in other
words, what prompted a defendant to take criminal action (e.g., attack a victim). "Intent" speaks
to the "state of mind with which the act is done," Powell, 126 Wn.2d at 261, in other words, what
the defendant hopes to accomplish when motivated to take action (e.g., inflict great bodily harm
or death). The trial court held Arredondo's deep-seated animosity toward Suref'ios relevant to both.
                                                17
State v. Arredondo, No. 92389-2

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

also RAP 10.3(a)(6) (arguments made must include supporting "citations to legal

authority").

      Even if this argument has merit, the issue is not properly before us. See State

v. Duncan, 185 Wn.2d 430, 435 n.2, 374 P.3d 83 (2016) (we generally decline to

consider arguments not properly before us). Arredondo did not raise the issue in his

prior appeal, his petition for review, or his supplemental briefing. See State v. Brown,

113 Wn.2d 520, 528-29, 782 P.2d 1013 (1989) (declining to decide whether a jury

instruction containing both a permissible and impermissible purpose under ER

404(b) was a basis for reversal when the issue was not properly argued on appeal);

see also In re Pers. Restraint of Coats, 173 Wn.2d 123, 136 n.8, 267 P.3d 324 (2011)

(we generally decline consideration of arguments not briefed); State v. Chamberlin,

161 Wn.2d 30, 36 n.3, 162 P.3d 389 (2007) (same).

      Most importantly, Arredondo failed to object to the jury instruction when

proposed by the trial court, even though he was given multiple opportunities to do

so. See 6 VRP at 811-13 (Arredondo failed to raise the issue when the trial court

asked, after reviewing the jury instructions, "[A]ny objection to instructions given

or not given" or if there were "any further exceptions?"). "An established rule of

appellate review in Washington is that a party generally waives the right to appeal




                                           18
State v. Arredondo, No. 92389-2

an error unless there is an objection at trial." State v. Kalebaugh, 183 Wn.2d 578,

582, 355 P.3d 253 (2015).

      The trial court identified a permissible purpose under ER 404(b) for evidence

associated with the February shooting to be presented to the jury-motive and

intent-and then considered its relevancy in demonstrating Arredondo' s mens rea in

the December shooting. This is a reasonable application of the second and third

prongs of the required ER 404(b) analysis.

             c.     Fourth prong: the trial court reasonably weighed the probative
                    value versus the substantial prejudicial effect of evidence of the
                    prior shooting

      Evidence of Arredondo's participation in a prior drive-by shooting would

have been highly prejudicial. To properly admit such evidence, the trial court had to

reasonably determine that the probative value of the allegation was similarly high.

See Lough, 125 Wn.2d at 863 ("Because substantial prejudicial effect is inherent in

ER 404(b) evidence, uncharged offenses are admissible only if they have substantial

probative value."). The court found that the prior shooting had "probative value in

identifying [motive and intent] .... So, under the circumstances, I believe that the

probative value outweighs the prejudicial effect." SVRP at 26-27. Given the

apparent code of silence between the witnesses, perpetrators, and victims, the

probative value of evidence demonstrating Arredondo's motive to attack Avila and

his passengers with an intent to kill or inflict great bodily harm would be particularly


                                          19
State v. Arredondo, No. 92389-2

high here. See Old Chief v. United States, 519 U.S. 172, 185, 117 S. Ct. 644, 136 L.

Ed. 2d 574 (1997) ('"The probative worth of any particular bit of evidence is

obviously affected by the scarcity or abundance of other evidence on the same

point.'" (quoting CHARLES ALAN WRIGHT & K. GRAHAM, FEDERAL PRACTICE AND

PROCEDURE § 5250, at 546-47 (1978))); Dale A. Nance, Conditional Probative

Value and the Reconstruction of the Federal Rules of Evidence, 94 MICH. L. REV.

419, 423 (1995) ("the probative value of every piece of evidence is conditional upon

other evidence").

      Arredondo counters that the prejudicial effect from evidence of past

unconvicted crimes is impermissibly high because the current jury may "feel that the

defendant should be punished somehow, for a broad swath of general criminal

wrongdoing." Pet'r' s Suppl. Br. at 13 (citing United States v. Bradley, 5 F.3d 1317,

1321 (9th Cir. 1993)). But the court gave repeated limiting instructions-both oral

instructions before each officer testified as to their findings on the February incident

and written instructions following the presentation of all evidence-that the past

crime cannot be used to show a propensity to commit the current crime. This

instruction mitigated the prejudicial effect of the evidence of the prior shooting.

Lough, 125 Wn.2d at 864. Juries are presumed to follow the court's instructions,

absent evidence to the contrary. State v. Dye, 178 Wn.2d 541, 556, 309 P.3d 1192

(2013). Arredondo provides no such evidence.


                                          20
State v. Arredondo, No. 92389-2

       The trial court reasonably balanced the substantial prejudicial effect of the

February shooting against its substantial probative value. Absent substituting our

own judgment, we cannot find the trial court's decision unreasonable.

       Because the trial court reasonably applied the four prongs articulated above,

it did not abuse its discretion. We affirm on the ER 404(b) issue.

B.     The trial court did not abuse its discretion when it barred cross-examination
       into Simon's mental state

       1.     Standard of review

       We review a cross-examination scope limitation for a manifest abuse of

discretion. 8 State v. Garcia, 179 Wn.2d 828,844,318 P.3d 266 (2014); Darden, 145

Wn.2d at 619. A manifest abuse of discretion arises when "the trial court's exercise

of discretion is 'manifestly unreasonable or based upon untenable grounds or

reasons.'" Darden, 145 Wn.2d at 619 (quoting Powell, 126 Wn.2d at 258).

       2.     The right of confrontation

       The confrontation clause of the Sixth Amendment (applicable to the State via

the Fourteenth Amendment) guarantees the right of a criminal defendant "to be

confronted with the witnesses against him." U.S. CONST. amends. VI, XIV.

Similarly, article I, section 22 of the Washington Constitution guarantees the right




       8
         For a ruling barring cross-examination entirely, we apply a de novo standard. State v.
Jones, 168 Wn.2d 713,719,230 P.3d 576 (2010).
                                              21
State v. Arredondo, No. 92389-2

of a defendant to "meet the witnesses against him face to face." 9 Cross-examination

is the "principal means by which the believability of a witness and the truth of his

testimony are tested." Davis v. Alaska, 415 U.S. 308,316, 94 S. Ct. 1105, 39 L. Ed.

2d 347 (1974). "Whenever the right to confront is denied, the ultimate integrity of

this fact-finding process is called into question .... As such, the right to confront

must be zealously guarded." Darden, 145 Wn.2d at 620.

       This right is not absolute. "The scope of such cross examination is within the

discretion· of the trial court." State v. Russell, 125 Wn.2d 24, 92, 882 P.2d 747

(1994); see Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed.

2d 674 (1986) (Trial courts "retain wide latitude insofar as the Confrontation Clause

is concerned to impose reasonable limits on such cross-examination based on

concerns about, among other things . . . prejudice . . . or only marginal[]

relevan[ce]."). Darden provides a three-step process to determine whether a cross-

examination limitation violates the right of confrontation. 145 Wn.2d at 622.

Darden, in tum, is an evolution of a similar two-part test put forth in State v. Hudlow,

99 Wn.2d 1, 15,659 P.2d 514 (1983). In order for a cross-examination limitation to

violate the confrontation clause, the testimony sought by the defendant, but excluded

by the trial court, must (1) be minimally relevant and (2) not be so prejudicial as to




       9
         Neither party argues that article I, section 22 of our constitution provides different
confrontation right protections from the Sixth Amendment, so our focus is the Sixth Amendment.
                                              22
State v. Arredondo, No. 92389-2

disrupt the fairness of the fact-finding process at trial, and (3) the defendant's need

for relevant but prejudicial information must outweigh the State's interest in

withholding that information from the finder of fact. State v. Jones, 168 Wn.2d 713,

720-21, 230 P.3d 576 (2010) (quoting Darden, 145 Wn.2d at 622). No State interest

is sufficiently compelling to preclude evidence with highly probative value. Id.

      3.     Simon's cross-examination

      Based on testimony Simon provided to the trial court outside the presence of

the jury, the court determined Simon's past mental health diagnoses as well as his

admitted previous drug and alcohol use could be excluded from cross-examination

because such information was irrelevant, not probative, and highly prejudicial. For

the reasons discussed below, these were reasonable findings. Further, Arredondo

does not demonstrate that his need for the evidence outweighed the State's interest

in withholding it, given the impeachment evidence the trial court did allow him to

use during trial. Therefore, the trial court did not abuse its discretion in barring this

line of questioning.

             a.        Mental health evidence

      In United States v. Love, the Eighth Circuit Court of Appeals held that a trial

court should apply the following factors to assess whether past mental health issues

are permissible on cross-examination: "1) the nature of the psychological problems;

2) whether the witness suffered from the condition at the time of the events to which


                                           23
State v. Arredondo, No. 92389-2

the witness will testify; [and] 3) the temporal recency or remoteness of the

condition." 329 F.3d 981,984 (8th Cir. 2003) (citing Boggs v. Collins, 226 F.3d 728,

742 (6th Cir. 2000)); see United States v. Robinson, 583 F.3d 1265, 1274-75 (10th

Cir. 2009) (trial court's failure to engage in such searching analysis prior to barring

cross-examination was not harmless error); see also United States v. Sasso, 59 F.3d

341, 347-48 (2d Cir. 1995) (trial court's searching analysis was sufficient to bar

cross-examination implicating mental health issues). These factors provide trial

courts an effective means to consider the relevancy, probative value, and prejudicial

effect from the disclosure of a witness' mental health limitations. We adopt these

factors and apply them here.

      Simon admitted during a pretrial defense interview, in response to the

question of whether he had ever taken a polygraph exam before, that he had, but he

added he failed the exam due to "PTSD, anxiety disorder and depression with

intersensitive personality-- interpersonality sensitivities." CP at 166. In order to later

assess whether those admitted mental health limitations were a permissible area of

inquiry on cross-examination, the trial court elicited testimony from Simon outside

the presence of the jury.

       Simon confirmed during this testimony that on an application for general

assistance unemployment he admitted to having been diagnosed with "depression,

problems with concentration and anxiety, PTSD, does not trust people, hypervigilant


                                           24
State v. Arredondo, No. 92389-2

due to being homeless, tends to be superficial and distant ... [, and] [p ]roblems with

concentration and anxiety." 5 VRP at 561. He also admitted to short-term memory

problems resulting from his past drug use. But Simon also claimed,

      [M]y memory is fine. I could tell you what you wore the day we had
      the interview. I could tell you how many words you said if I really had
      to count, but you really didn't say that much .... Right now as I sit
      here in this court chair after recollecting over the things I've heard in
      the few days I was in the cell with Mr. Arredondo, I have no problems
      remembering.

Id. at561-62.

      Based on this testimony, the court concluded Simon's past mental health

diagnoses had "nothing to do with Mr. Simon's ability to accurately recall and to

describe the events ... that he is going to be called upon to describe in his testimony."

Id. at 566-67. Nor did the court "see how short-term memory is implicated here

because [Arredondo's disputed confession] isn't something that occurred earlier this

morning or last night or something like that. This is something weeks and months

ago." Id. at 566. The trial court also concluded that "the probative value of inquiry

into those is negligible[, yet] [t]he prejudicial effect, on the other hand, is enormous.

You could label him as a mental case ... so that the jury would disbelieve anything

he had to say because he has some type of a psychiatric disorder." Id. at 567. The

trial court then barred "inquiry into Mr. Simon's mental state now or in the past." Id.

      The trial court's analysis is consistent with the factors described in Love.

Further, it accurately reflects Darden's first two steps-a reasonable assessment of
                                           25
State v. Arredondo, No. 92389-2

relevancy and a reasonable comparison of the probative value versus the prejudicial

effect of the testimony. 10 Based on this analysis, the court then concluded the mental

health evidence was completely irrelevant, nominally probative, and highly

prejudicial. These findings and the court's resulting ruling were neither "'manifestly

unreasonable [n]or based upon untenable grounds.'" Darden, 145 Wn.2d at 619

(quoting Powell, 126 Wn.2d at 258).

       The Court of Appeals, in affirming the trial court's ruling barring cross-

examination into Simon's mental health, contrasted the actions of the trial court with

those of the trial courts in State v. Peterson, 2 Wn. App. 464, 466, 469 P.2d 980

(1970), and State v. Froehlich, 96 Wn.2d 301, 306, 635 P.2d 127 (1981). In those

cases, the trial courts abused their discretion by not allowing cross-examination of

witnesses' mental states because those witnesses' mental limitations were clearly

apparent on the stand. Id. Our decision in Froehlich should not be interpreted to

mean that so long as a witness' mental limitations are not readily apparent from the

witness' behavior on the stand, cross-examination regarding his or her mental health




       10
          Arredondo argues that the trial court improperly based its ruling on Simon's risk of
embarrassment rather than the risk of prejudicial effect to the jury from such testimony. This
argument is not supported by the record. The trial court's concern over the jury labeling Simon a
"mental case" was rooted in the court's fear that such a cross-examination would elicit "an
emotional response [rather] than a rational decision by the jury," Lockwood v. AC&S, 109 Wn.2d
235, 257, 744 P.2d 605 (1987) and, as a result, "the jury would disbelieve anything he had to say,"
5 VRP at 567.

                                               26
State v. Arredondo, No. 92389-2

is solely at the discretion of the trial court. Given the complexities of mental health

limitations, a deeper analysis, as described above, is required.

             b.     Evidence of drug and alcohol use

      If a witness' past use of intoxicants has not been shown to produce ongoing

mental deficiencies, such use is relevant only if the cross-examining party can

demonstrate that the witness was under the influence either at the time the witness

observed the events at issue or when the witness is called on to testify. See, e.g.,

State v. Thomas, 150 Wn.2d 821, 863, 83 P.3d 970 (2004); Russell, 125 Wn.2d at

83-84; State v. Benn, 120 Wn.2d 631,651,845 P.2d 289 (1993).

      While Simon did admit to short-term memory loss due to past drug and

alcohol use, the trial court, as described above, concluded such issues would not

affect his testimony regarding Arredondo' s admission, which had occurred many

months prior. Nor was any evidence presented indicating that Simon was impaired

at the time of Arredondo' s purported admission to Simon. Indeed, Arredondo failed

to mention, when testifying to the jury on his own behalf, that Simon appeared

impaired to him when they previously shared a cell. Nor did Arredondo's counsel,

after Simon testified to the court outside of the presence of the jury, argue to the trial

court that Simon appeared impaired the day of his testimony.

      Only on appeal does Arredondo assert Simon's drug and alcohol use could

have impaired his testimony and therefore be a relevant line of inquiry. No evidence


                                           27
State v. Arredondo, No. 92389-2

supports this assertion, other than Simon's admission during a pretrial interview, and

again to the court outside the presence of the jury, that he had previously abused

drugs and alcohol. But following Simon's admission to the court, he also indicated

that he had not abused drugs or alcohol in the prior six to eight months.

      Given the lack of evidence supporting a finding of impairment, the trial

court's ruling barring inquiry into Simon's past drug and alcohol use was neither

"'manifestly unreasonable [n]or based upon untenable grounds."' Darden, 145

Wn.2d at 619 (quoting Powell, 126 Wn.2d at 258).

             c.    Arredondo's need to introduce the evidence of Simon's past
                   mental health limitations and drug use was insignificant

      Even if the evidence of Simon's past drug use and possible mental health

limitations had been marginally relevant, which the court reasonably concluded they

were not, Arredondo fails to show that his need to present this prejudicial

information to the jury outweighed the State's interest in withholding it. The trial

court did not limit Arredondo' s attempts to impeach Simon with questions during

cross-examination about the terms of Simon's assistance agreement; his prior

criminal history, including multiple convictions for crimes of dishonesty; Simon's

admission while testifying that he has a "problem staying focused and

comprehending sometimes when things run on," 5 VRP at 605-06; and

inconsistencies between Simon's testimony on direct examination and the

statements he made during his pretrial interview.
                                         28
State v. Arredondo, No. 92389-2

      From this evidence, Arredondo argued at closing that Simon has "a history of

felony convictions for crimes of dishonesty," including possession of stolen

property, third degree theft, residential burglary, and possession of controlled

substances; that he "expects to receive a favorable recommendation" on his current

sentence based on his testimony in Arredondo' s case; and that he has problems with

his "memory." 6 VRP at 843-44. Arredondo also cautioned the jury it "should be

concerned about [Simon's] credibility, his intent, his desire to receive favorable

treatment, and his memory." Id. at 844. Given the arguments Simon made at closing,

Arredondo' s need to present further impeachment evidence appears negligible.

Therefore, he fails to demonstrate satisfaction of Darden's third step.

      The trial court reasonably applied Darden's requirements when it barred

cross-examination into Simon's mental health and past drug use. It did not abuse its

discretion and, as a result, did not violate Arredondo' s right of confrontation. We

affirm on the confrontation clause issue.

                                IV. CONCLUSION
      The trial court did not abuse its discretion and thereby did not commit

reversible error in admitting evidence for a noncharacter purpose of a previous

shooting in which Arredondo was implicated in accordance with ER 404(b ). Nor did

it abuse its discretion and thereby violate Arredondo' s confrontation clause right in




                                            29
State v. Arredondo, No. 92389-2

barring cross-examination into Simon's prior mental health diagnoses and substance

abuse. We affirm.




                                        30
State v. Arredondo, No. 92389-2




WE CONCUR:




                                  31
State v. Arredondo




                                    No. 92389-2


      GONZALEZ, J. (dissenting)-Fundamental to our system of justice is the

principle that an individual will be tried for the crime he or she is accused of

committing, not for crimes allegedly committed in the past. WASH. CONST. art. I, §

22; State v. Goebel, 36 Wn.2d 367, 368, 218 P.2d 300 (1950); Williams v. New

York, 337 U.S. 241,246, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949) ("the issue is

whether a defendant is guilty of having engaged in certain criminal conduct of

which he [or she] has been specifically accused"). In criminal trials, we generally

do not judge people or their acts by their character or past conduct. IA JOHN

HENRYWIGMORE,EVIDENCEINTRIALSATCOMMONLAW § 54.1, at 1156 (Tillers

rev. 1983); United States v. Foskey, 636 F.2d 517, 523 (D.C. Cir. 1980) (this

precept is "fundamental to American jurisprudence"); United States v. Myers, 550

F.2d 1036, 1044 (5th Cir. 1977) ("concomitant of the presumption of innocence is

that a defendant must be tried for what he [or she] did, not for who he [or she] is").


      Evidence of a person's character, offered to prove the person acted in

conformity with that character on a particular occasion, is forbidden. ER 404(b );

State v. Everybodytalksabout, 145 Wn.2d 456, 465-66, 39 P.3d 294 (2002); State v.
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

Mee, 168 Wn. App. 144, 153-54, 275 P.3d 1192 (2012). Our law does not

discriminate between the good and the bad in its safeguards. "The protection of

the law is due alike to the righteous and the unrighteous. The sun of justice shines

alike 'for the evil and the good, the just and the unjust.' Crime must be proved, not

presumed." People v. White, 24 Wend. 570, 574 (N.Y. 1840). For this reason, we

have adopted rules prohibiting the introduction of character evidence because it

incites the "deep tendency of human nature to punish" a defendant simply because

he or she is a bad person, WIGMORE, supra, § 57, at 1185, a "criminal-type"

deserving of conviction. State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786

(2007).


      These ideals have been enshrined in our jurisprudence for centuries. See

generally McKinney v. Rees, 993 F.2d 1378, 1381 & n.2 (9th Cir. 1993)

(explaining the rule precluding prior bad act evidence has "persisted since at least

1684 to the present"). I invoke these ideals because this case presents an

opportunity to correct a wrong that wounds the very heart of our criminal justice

system: the conviction of an individual, in part, for appearing to be a bad person.

Unfortunately, that is what has happened here.


      Fabian Arredondo, though entitled to these protections before the law, was

denied them here. On the night of December '5, 2009, three Surefio gang members

were injured in a drive-by shooting. One young man died. Arredondo, a known

                                          2
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

member of the rival Nortefio gang, was charged with and convicted of first degree

murder and assault in relation to this incident. The trial court allowed, over

defense objection, evidence of an unrelated and uncharged February 2009 drive-by

shooting as evidence of Arredondo' s "animosity towards people ... of the Sureno

persuasion." 1 Verbatim Report of Proceedings (VRP) (Oct. 10, 2011) at 26-27.

According to the trial court, this animosity illustrated identity, motive, and intent.

The majority accepts the trial court's reasoning even though the facts are

insufficient to support these conclusions. Because I disagree with the majority that

the evidence of a prior drive-by shooting in which Arredondo was a suspect falls

within the exception to ER 404(b ), I respectfully dissent.


       In the law of evidence, as in the search for justice, truth matters. 1 KENNETH

S. BROUN ET AL., McCORMICK ON EVIDENCE§ 184, at 993 (7th ed. 2013). The

purpose of our evidentiary rules is to ensure fairness and unearth truth. Under ER

404(b ), evidence of a defendant's prior bad acts is presumptively inadmissible.

State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). ER 404(b) explains

that


       [e]vidence 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.



                                           3
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

      This rule forbids the State from suggesting that a defendant is guilty merely

because he or she appears to be a criminal who would likely commit the charged

crime. Everbodytalksabout, 145 Wn.2d at 466; Mee, 168 Wn. App. at 154. Guilt

by appearance "contradicts 'the fundamental American criminal law belief in

innocence until proven guilty, a concept that confines the fact-finder to the merits

of the current case in judging a person's guilt or innocence."' State v. Embry, 171

Wn. App. 714, 771, 287 P.3d 648 (2012) (Armstrong, J. Pro Tern., dissenting)

(quoting State v. Wade, 98 Wn. App. 328,336, 989 P.2d 576 (1999)); see also

State v. DeLeon, 185 Wn.2d 478,489,374 P.3d 95 (2016) (possessing music from

a prominent Latin American band is not evidence of gang membership).


      To determine admissibility of evidence under ER 404(b ), the trial court must

conduct a four-part analysis. The court must (1) find by a preponderance of the

evidence that the uncharged act probably occurred, (2) identify the purpose for

which the evidence is admitted, (3) find it relevant to that purpose, and (4) balance

the probative value against its prejudicial effect. State v. Vy Thang, 145 Wn.2d

630, 642, 41 P.3d 1159 (2002) (citing State v. Lough, 125 Wn.2d 847, 853, 889

P.2d 487 (1995)). Doubtful cases should be resolved in the defendant's favor.

State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986) (quoting State v. Bennett,

36 Wn. App. 176, 180, 672 P.2d 772 (1983)). We review a trial court's ruling for

abuse of discretion, which occurs when a decision is manifestly unreasonable or

                                          4
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

based on untenable grounds or reasons. State v. Powell, 126 Wn.2d 244, 258, 893

P.2d 615 (1995).


       Here, the State failed to establish Arredondo's probable involvement in the

February 2009 drive-by shooting. Nothing in the record indicates that he was the

shooter, the driver, or even in the car at the time of the incident. I recognize that

keys to a vehicle similar to the one suspected in the February shooting were found

in Arredondo' s pocket when police questioned him two weeks after the incident,

and a spent shell casing was discovered in the vehicle. This evidence establishes

that Arredondo had access to a vehicle that may have been involved in a crime two

weeks earlier. No evidence was presented that Arredondo had access to or even

constructive possession of the suspected car on the date of the shooting. See State

v. George, 146 Wn. App. 906, 919-20, 193 P.3d 693 (2008) (citing State v.

Callahan, 77 Wn.2d 27, 29,459 P.2d 400 (1969)) ("constructive possession"

defined). 1 The gun involved in the prior shooting was never located, and

Arredondo was never charged or convicted of any crime related to that shooting.

The meager evidence that Arredondo or another member of his alleged gang could




1
  The record indicates that Arredondo may have had control of the vehicle at some point during
February 2009. 4 VRP (Oct. 17, 2011) at 481. A community corrections officer testified that the
silver Mercedes had been "previously searched," and the officer asserted, without explanation,
that the search established Arredondo' s "control" of the vehicle. Id. at 480-81. The officer did
not identify the date when this search occurred, nor did he provide additional details of the
search.
                                                5
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

have been an accessory or principal in the drive-by shooting does not demonstrate

that Arredondo probably was. Such evidence falls far short of meeting the

preponderance standard to justify admissibility. Therefore, the February shooting

should have been excluded on this basis alone.


      Even if we assume there was sufficient evidence to prove Arredondo' s

involvement in the earlier shooting, the February shooting does not show identity,

intent, or motive sufficient to fall within the permissible exceptions of ER 404(b ).

I agree with the majority that the earlier shooting was not sufficiently distinctive to

prove identity because it does not establish a unique modus operandi. An earlier

Nortefio versus Surefio drive-by shooting alone does not have any distinctive

characteristics to mark a later Nortefio versus Surefio shooting as handiwork of the

accused; it is not "so 'unusual and distinctive as to be like a signature."'

Foxhoven, 161 Wn.2d at 176-77 (internal quotation marks omitted) (quoting State

v. Coe, 101 Wn.2d, 777, 684 P.2d 668 (1984)). Sadly, it may not have been

unusual at all. See, e.g., State v. Weatherwax, 193 Wn. App. 667, 671-73, 376 P.3d

1150, rev 'd, 2017 WL 1292624; State v. Moreno, 173 Wn. App. 479, 489-90, 294

P.3d 812 (2013); State v. Rodriguez, 163 Wn. App. 215, 221-22, 259 P.3d 1145

(2011 ). In addition, different gang members were involved and different vehicles

were used. Compare 4 VRP (Oct. 17, 2011) at 467-68 (noting a Mercedes-like

vehicle suspected in the February shooting in a Surefio gang area), with id. at 469-

                                           6
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

70 (discussing a Honda Accord suspected in the December shooting). That the

prior drive-by act occurred in the same general location as the charged crime does

not come close to establishing identity.


      The inference of intent is similarly unavailing. To offer evidence of a prior

act to reveal intent, there must be a logical theory other than propensity that

demonstrates how the prior act connects to the intent required to commit the

charged offense. Wigmore explains this inference as a three-step process because

'"an act is not evidential of another act;"' an intermediate step is required. Wade,

98 Wn. App. at 335 (quoting WIGMORE, supra,§ 192, at 1857). It cannot be

argued that because a defendant did an act last year-or in this case, 10 months

prior-he probably did the act now charged. Id.


      Using a prior drive-by shooting in which Arredondo's involvement was not

proved to illustrate current criminal intent invites the inference that because

Arredondo had the intent to kill or inflict great bodily harm against certain gang

members previously, he must possess the same intent against different gang

members now. As I emphasized regarding identity, the facts of the December

shooting differ from the February shooting. Different gang members were

involved, and different vehicles were used. The fact that both shootings occurred

in the same general location does not support an inference of intent.



                                           7
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

      Similarly, animosity among gangs is, by itself: insufficient to show motive.

"Motive" is a "'[c]ause or reason that moves the will[;] ... [a]n inducement, or

that which leads or temps the mind to indulge in a criminal act.'" State v. Tharp,

96 Wn.2d 591,597,637 P.2d 961 (1981) (quoting BLACK'S LAW DICTIONARY

1164 (4th ed. rev. 1968)). Motive is distinguishable from "intent," which is the

purpose or design with which the act is done. Powell, 126 Wn.2d at 260 (quoting

BLACK'S LAW DICTIONARY 1014 (6th ed. 1990)). Evidence of past quarrels and           ill

feelings between individuals can show motive, but it is the facts of that relationship

and not the ,propensity of the actor that generate the permissible inference under

ER 404(b ). Id.


      Here, the existence of an earlier shooting where Norte.no members harmed

Sure.no members fails to show motive for a later shooting by Norte.no members

against Sure.no members. The prior shooting establishes only that certain Norte.nos

had reasons to harm certain Sure.nos in February and that those Sure.nos may have

reason to harm those Norte.nos after that altercation. The February shooting may

establish motive for a retaliatory response by Sure.no gang members, but not the

other way around. While animosity or hostility may be "paradigmatic motive for

committing a crime," United States v. Russell, 971 F.2d 1098, 1106-07 (4th Cir.

1992), the fact of a prior shooting against one individual does not evince specific

animosity to commit a subsequent crime against a different individual. See State v.

                                          8
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

Stenson, 132 Wn.2d 668, 702-03, 940 P.2d 1239 (1997) (evidence of prior hostile

actions between defendant and victim indicate motive for later crime involving the

same parties). Something more is required to show motive. See, e.g., Embry, 171

Wn. App. at 733-34 (lingering animosity for a rival gang member about an earlier

fight); State v. Mancilla, 197 Wn. App. 631, 644, 391 P.3d 507 (2017) (gang

members' reasons to target a rival gang member's house); see also State v. Gates,

28 Wash. 689, 698, 69 P. 358 (1902) (prior threats); State v. Campbell, 78 Wn.

App. 813,822,901 P.2d 1050 (1995) (status challenges and invasions into

defendant's drug sales territory by rival drug dealer); Powell, 126 Wn.2d at 260

(past fights, physical altercations, financial gain); State v. Boot, 89 Wn. App. 780,

789, 950 P.2d 964 (1998) (prior threat by gunpoint). 2



2
  According to the majority, targeting different individuals in different drive-by shootings "is of
no matter" because here the victims of both events were Surefio gang members. Majority at 15.
In support, the majority cites State v. Peerson, 62 Wn. App. 755,816 P.2d 43 (1991), United
States v. Franklin, 704 F.2d 1183 (10th Cir. 1983), and State v. Davis, 6 Idaho 159, 53 P. 678
(1898). In so doing, the majority ignores critical and distinguishing factual differences between
these authorities and the instant case. In Peerson, the defendant assaulted and killed four
marijuana growers. 62 Wn. App. at 758-59. The trial court admitted evidence of the defendant's
earlier assault on other growers, with one victim in common between the two events. Id. at 775-
78. Notably, the prior assault occurred in response to the marijuana growers' actions against the
defendant-they refused to sell marijuana to him. Id. at 759. The later assault was retribution
and retaliation for cutting off the defendant's drug supply. Id. at 776. The Franklin case is
inapposite. In Frankl in, the court found evidence of a defendant's previous attack on an
interracial couple admissible under the Federal Rule of Evidence 404(b) because the attack
showed motive and intent for a later murder of two African American men. 704 F.2d at 1187-88.
This case is profoundly disturbing and profoundly irrelevant to the analysis at hand. The
Franklin defendant committed multiple racially motivated crimes against multiple individuals.
Id. Here, it is far from established that the same individual committed a gang-related crime in
the first instance. The Davis opinion is similarly inapposite. In that case, the court found
evidence of a defendant's past threats and attacks against sheepherders "clearly admissible" to
                                                 9
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

       Thus, the implication that a prior shooting can demonstrate motive for a later

shooting is premised on the assumption that because Arredondo was probably

involved in the same type of crime (a drive-by shooting) inFebruary, he was

predisposed to have the same intent and motive to commit a drive-by shooting in

December. Animosity was little more than a euphemism for propensity. And

propensity is not a permissible ground to admit prior bad act evidence.


       More significantly, any probative value the prior shooting had to prove

motive or intent was substantially outweighed by its prejudicial effect. Gang

rivalry, to the extent it was relevant, could have been demonstrated in less

prejudicial ways. Indeed, it was conceded at trial. Evidence of a prior gang-on-

gang shooting is extremely prejudicial in a case involving a gang-on-gang shooting

because it invited thejury to make the "forbidden inference" underlying ER

404(b ). It allowed jurors to surmise that Arredondo had a propensity to commit

drive-by shootings regardless of the paucity of evidence tying him to that earlier

shooting or the strength of the State's evidence tying him to the later shooting. In

other words-once a criminal, always a criminal.



show motive for the later murders of other sheepherders. 6 Idaho at 172. But the court in Davis
provides no analysis or authority for why this evidence is "clearly admissible." Id. at 682. One
court characterized Davis as holding that hostile threats against a class of persons manifest a
hostile state of mind against each person of that class and are admissible for that purpose. See
State v. Hanlon, 38 Mont. 557, 557-78, 100 P.1035 (1909). Such an interpretation would mean
that the Nortefio animosity for Surefios could be reasonably used not only against Arredondo but
against any Nortefio suspected in the December or February 2009 shooting.

                                               10
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

      The reluctance of witnesses to testify at trial does not lower the standard of

proof necessary to satisfy ER 404(b ). A trial court must still weigh the probative

value of prior acts evidence against its prejudicial effect, regardless of the "code of

silence" between gang members, witnesses, or victims. See Old Chief v. United

States, 519 U.S. 172, 174, 179-80, 190, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997) (a

defendant's prior assault conviction was unnecessary to prove later firearm

possession and assault charges, and the prior crime was found to be highly

prejudicial, as it was similar to the defendant's pending assault charge). Any

probative value the prior shooting had to show intent or motive through animus

between the rival gangs was satisfied by the defense's concession that the gangs

were rivals and that Arredondo was a member of that rival gang. In contrast, the

likelihood the jury would consider the evidence for the impermissible purpose of

criminal propensity was significantly high. See State v. Saltarelli, 98 Wn.2d 358,

365-66, 655 P.2d 697 (1982) (earlier attempted rape extremely prejudicial); Mee,

168 Wn. App. at 159 (gang evidence unfairly prejudicial); State v. Asaeli, 150 Wn.

App. 543, 579, 208 P.3d 1136 (2009) (noting "the inflammatory nature of gang

evidence generally"). In light of this concession, the balance struck by ER 404(b)

weighs heavily in favor of the defendant, and the trial court abused its discretion in

admitting it. Smith, 106 Wn.2d at 775 (relevant evidence must be excluded if

probative value substantially outweighed by unfair prejudice).


                                          11
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

      Further, the erroneous limiting instruction that allowed the jury to consider

the February shooting for proper (intent and motive) and improper (identity)

purposes was insufficient to overcome the prejudicial nature of the evidence. It is

debatable whether a limiting instruction would ever be sufficient to undermine the

deep tendency of human nature to punish a defendant simply because he or she is a

bad person. See State v. Miles, 73 Wn.2d 67, 71,436 P.2d 198 (1968) (limiting

instruction could not erase inherently prejudicial evidence); Krulewitch v. United

States, 336 U.S. 440,453, 69 S. Ct. 716, 93 L. Ed. 790 (1949) (Jackson, J.,

concurring) ("The naive assumption that prejudicial effects can be overcome by

instructions to the jury ... all practicing lawyers know to be unmitigated fiction.").

In this case, Arredondo' s rights, though '" declared in words"' were '" lost in

reality,"' See Olmstead v. United States, 277 U.S. 438,473, 48 S. Ct. 564, 72 L,

Ed. 944 (1928) (Brandeis, J., dissenting) (quoting Weems v. United States, 217

U.S. 349,373, 30 S. Ct. 544, 54 L. Ed. 793 (1910)).


      Arredondo's conviction was unjustly obtained. He was convicted not

simply because the State had evidence beyond a reasonable doubt that he

corpmitted the December 2009 drive-by shooting, but, in part, because the jury was

told he was a violent gang member who went unpunished for a similar crime in the

past. State v. Kilgore, 147 Wn.2d 288, 296, 53 P.3d 974 (2002) (Chambers, J.

concurring) ("A.fair trial is denied when the jury is permitted to conclude the

                                           12
State v. Arredondo, No. 92389-2 (Gonzalez, J., dissenting)

accused deserves punishment because of other bad acts.") Though this may be a

textbook case of gang violence, it is also a textbook case of improper propensity

evidence used to distract the jury from the State's tenuous case against Fabian

Arredondo. See, e.g., People v. Golochowicz, 413 Mich. 298, 324-27, 319 N.W.2d

518 (1982) (a defendant's unrelated, similar crime may distract the jury from weak

evidence and tempt it to ignore other elements).


      The trial court abused its discretion in failing to reasonably apply ER 404(b)

and improperly admitting the February 2009 evidence for untenable reasons. The

evidence against Arredondo was not overwhelming. The erroneous admission of

the prior shooting evidence was not harmless. State v. Cunningham, 93 Wn.2d

823, 831, 613 P .2d 113 9 ( 1980) ( applying harmless error standard to erroneous

admission of evidence). I would reverse and remand for a new trial. In affirming

Arredondo's conviction as the majority does, a conviction brought about by

improper evidence, we are violating the principle that the prosecution may land

"hard blows," but it may not land "low ones." Caro v. Smith, 59 Cal. App. 4th

725, 739, 69 Cal. Rptr. 2d 306 (1997).


      I respectfully dissent.




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State v. Arredondo, No. 92389-2 (Gonzalez 1 J., dissenting)




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