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                                                                2013 JUN / 7 AH 9= 1*2


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                         No. 68207-5-1

                      Respondent,
                                             DIVISION ONE
   v.



MARIO GARCIA-BONILLA,                        UNPUBLISHED OPINION

                      Appellant.
                                             FILED: June 17. 2013

        Spearman, J. - Mario Garcia-Bonilla challenges his convictions for first degree

burglary, first degree assault, second degree assault (domestic violence) and violation

of a no-contact order (domestic violence). He argues that the trial court erred when it

admitted evidence of Garcia-Bonilla's prior acts of violence against one of the victims.

Because Garcia-Bonilla does not dispute that the evidence was properly admitted to

establish a motive for the crimes, we affirm his convictions.

                                          FACTS

        Garcia-Bonilla was involved in a romantic relationship with Mayra Ramirez-Diaz

between approximately 2000 and 2006. After Ramirez-Diaz ended the relationship,
Garcia-Bonilla made several attempts to reconcile with her. On August 27, 2006,

Garcia-Bonilla came to Ramirez-Diaz's apartment asking to speak with her; when she

told him to leave, he kicked and broke her door. Neighbors heard the commotion and

called 911 but Garcia-Bonilla had left the scene by the time law enforcement arrived.

Ramirez-Diaz was afraid and went to stay with her mother that night. The following day,

when Ramirez-Diaz entered her apartment, she found Garcia-Bonilla asleep on her
No. 68207-5-1/2



floor. Garcia-Bonilla pled guilty to first degree criminal trespass (domestic violence) and

third degree theft (domestic violence). The sentencing court issued an order prohibiting

Garcia-Bonilla from contacting Ramirez-Diaz until October 6, 2008.

       On October 4, 2007, Garcia-Bonilla came to Ramirez-Diaz's apartment, knocked

on the door and windows, and attempted to persuade Ramirez-Diaz to come back to

him. He did the same thing on October 5, 2007, and Ramirez-Diaz called 911. When

law enforcement arrived, they were unable to locate Garcia-Bonilla.

       On October 13, 2007, Garcia-Bonilla entered Ramirez-Diaz's apartment while

Ramirez-Diaz was there with a new boyfriend. Ramirez-Diaz's boyfriend locked himself

in the bathroom and called 911. Garcia-Bonilla had left the scene when law

enforcement arrived.

       On April 5, 2008, Ramirez-Diaz took her mother to a doctor's appointment. When

she returned to her apartment, Garcia-Bonilla was there. Garcia-Bonilla demanded to

know where Ramirez-Diaz had been, accused her of being with another man, and

grabbed her by her hair. Ramirez-Diaz was afraid Garcia-Bonilla would hit her because
"[h]e always hit me." Report of Proceedings (RP) (8/31/11) at 31. Garcia-Bonilla later
convinced Ramirez-Diaz not to call the police.

       On May 1, 2008, Ramirez-Diaz and her seven-year-old son Ernesto were

passengers in a car being driven by Jose Bardales-Munoz, a friend of Ramirez-Diaz's.
When the car was stopped at a stop sign, Garcia-Bonilla approached, opened the car
door, and tried to grab Ernesto. Ramirez-Diaz freed her son from Garcia-Bonilla's grasp.
Garcia-Bonilla continued to scream at Ramirez-Diaz and Bardales-Munoz as they drove
No. 68207-5-1/3


away. A protective order was entered prohibiting Garcia-Bonilla from contacting

Ramirez-Diaz until June 2, 2013.

       Ramirez-Diaz suffers from an illness that has left her with brain lesions and a

seizure disorder, and is dependent on multiple medications to survive. In early July

2008, Ramirez-Diaz began experiencing forgetfulness, headaches, nausea and

dizziness. The nausea caused her to throw up her seizure medications for a few days,

and when she was admitted to the hospital, her brain was showing frequent seizure

activity. Doctors gave Ramirez-Diaz high dosages of anti-convulsant medication to stop

the seizures, but the high dosage had the side effect of causing Ramirez-Diaz to

experience hallucinations, paranoia and delirium. Once doctors adjusted the

medications, Ramirez-Diaz's condition improved, and she was released from the

hospital a few days later.

       On August 3, 2008, Ramirez-Diaz hosted a barbecue at her apartment, attended

by her son Ernesto, her sister Hety, her brother-in-law Rosendo, her adult niece

Carolina, and Bardales-Munoz. Around 11:00 p.m., Bardales-Munoz went to sleep in

Ramirez-Diaz's bedroom. Ramirez-Diaz and her son went to sleep next to Bardales-

Munoz around 12:30 or 1:00 a.m. Hety and Rosendo went to sleep in another bedroom.

Carolina stayed awake using her computer at the dining room table.

       Early in the morning, Carolina saw Garcia-Bonilla enter the apartment through a

sliding glass door that had a broken lock. She saw a knife in Garcia-Bonilla's hand and
froze in fear. Garcia-Bonilla walked towards the bedrooms and Carolina heard a noise

"like ahh," at which point she screamed. RP (11/9/11) at 116-118.
No. 68207-5-1/4


      Bardales-Munoz felt something near his stomach and woke up. He kicked with

his foot, striking someone, and turned on the light. He realized he had been stabbed in

the abdomen, and saw Garcia-Bonilla standing over him with a knife in his raised hand.

Ramirez-Diaz was awoken by a groan. When the light came on, she saw Garcia-Bonilla

with a knife in his raised hand, making a movement towards her. Garcia-Bonilla then

fled the bedroom.

      Hety woke up when she heard Carolina scream. She opened the bedroom door

and saw Garcia-Bonilla walk down the hallway and exit the apartment through a sliding

glass door.

      The State charged Garcia-Bonilla with first degree burglary (Count I); first degree

assault for the attack on Bardales-Munoz (Count II); second degree assault (domestic

violence) for the attack on Ramirez-Diaz (Count III); and violation of a no-contact order
(domestic violence) (Count IV). Counts I, II and III carried deadly weapon

enhancements.

       Garcia-Bonilla filed a trial memorandum in which he outlined his theory of the

case. He claimed that he was never inside the apartment and that Ramirez-Diaz

stabbed Bardales-Munoz herself while suffering from paranoia and delusions related to

her illness. He further asserted that, because Ramirez-Diaz was not a legal resident of

the United States, she and her family had fabricated the allegations to prevent her from
being deported to her native Guatemala where she would not be able to receive crucial
medical treatment.
No. 68207-5-1/5


       Prior to trial, the State sought to admit evidence of Garcia-Bonilla's prior acts of

violence towards Ramirez-Diaz pursuant to ER 404(b): (1) the incident in which Garcia-

Bonilla was discovered sleeping on her floor on August 27-28, 2006; (2) the incident

where Garcia-Bonilla knocked on her door and windows on October 4-5 2007; (3) the

incident in which Ramirez-Diaz's male friend locked himself in a bathroom on October

13, 2007; (4) the incident where Garcia-Bonilla grabbed Ramirez-Diaz's hair on April 5,

2008; and (5) the incident where Garcia-Bonilla attempted to grab Ramirez-Diaz's son

from the car on May 1, 2008. The State argued that the acts were admissible to: (1)

show that Ramirez-Diaz had reasonable apprehension and imminent fear of bodily

injury during the attack; (2) determine Garcia-Bonilla's motive behind the attacks; and

(3) establish Ramirez-Diaz's credibility in light of the defense's theory of the case.

       The trial court found that the State had proven the incidents by a preponderance

of the evidence. The trial court admitted the August 27-28, 2006, October 4-5, 2007,

October 13, 2007 and April 5, 2008 incidents to help the jury assess Garcia-Bonilla's

motive and Ramirez-Diaz's credibility. The trial court also admitted the August 27-28,

2006, October 13, 2007 and April 5, 2008 incidents to establish Ramirez-Diaz's

reasonable apprehension and fear. The May 1, 2008 incident was admitted only to

show that Bardales-Munoz was capable of identifying Garcia-Bonilla as the assailant

but not for any other purpose. The jury was instructed as follows:

       Evidence has been introduced in this case regarding allegations of the
       defendant's past acts against Mayra Ramirez-Diaz before August 4, 2008.
       This evidence has been introduced for the limited purpose of assessing
       the defendant's alleged motive and assessing Mayra Ramirez-Diaz's
       credibility. Further, this evidence may be considered in evaluating Mayra
No. 68207-5-1/6

       Ramirez-Diaz's alleged fear and state of mind for Count III. You must not
       consider this evidence for any other purpose.

Clerk's Papers (CP) at 75.

       A jury convicted Garcia-Bonilla on all four counts1, returning deadly weapon
special verdicts on Counts I, II and III. Garcia-Bonilla appeals.

                                          DECISION

       We review a trial court's ruling on the admissibility of evidence for an abuse of

discretion. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). A trial court

abuses its discretion if it acts on untenable grounds or for untenable reasons. Magers,

164 Wn.2d at 181. "Failure to adhere to the requirements of an evidentiary rule can be

considered an abuse of discretion." State v. Foxhoven, 161 Wn.2d 168,174, 163 P.3d

786 (2007) (quoting State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001)).
       Under ER 404(b), a court is prohibited from admitting "[ejvidence of other crimes,
wrongs, or acts ... to prove the character of a person in order to show action in
conformity therewith." But such evidence is admissible for other purposes, "such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Before admitting ER 404(b) evidence, a trial court must:

              (1) find by a preponderance of the evidence that the
              misconduct occurred, (2) identify the purpose for which the
              evidence is sought to be introduced, (3) determine whether the
              evidence is relevant to prove an element of the crime charged,
              and (4) weigh the probative value against the prejudicial effect.




       The State amended Count IV from a felony to a misdemeanor at the close ofthe defense case.

                                               -6-
No. 68207-5-1/7


This analysis must be conducted on the record. Ifthe evidence is admitted, a limiting

instruction must be given to the jury. Foxhoven, 161 Wn.2d at 175.

        Garcia-Bonilla argues the trial court erred when it admitted the evidence of prior

threatening acts to show Ramirez-Diaz's apprehension and fear of bodily harm or to

establish her credibility. But Garcia-Bonilla does not dispute that the evidence was

admissible to show his motive for the attacks. We will affirm the trial court's decision to

admit evidence under ER 404(b) if one of the court's cited bases is justified. State v.

Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995).2
        Because the evidence was properly admitted to establish motive, the trial court

did not err. "[Mjotive goes beyond gain and can demonstrate an impulse, desire, or any

other moving power which causes an individual to act." Powell, 126 Wn.2d at 259.

Garcia-Bonilla had previously attempted to rekindle his relationship with Ramirez-Diaz.

He had been violent with her when he believed she was seeing other men, and

threatening towards male companions in her company. The evidence was relevant to

establish that Garcia-Bonilla's assault on Bardales-Munez and Ramirez-Diaz was

motivated by jealousy.

        Moreover, even if the admission of the evidence had been in error, any such

error was harmless. The erroneous admission of prior bad acts evidence under ER

404(b) "requires reversal only if the error, within reasonable probability, materially



       2 Because the evidence was admitted for a permissible purpose, we need not address Garcia-
Bonilla's claims that the trial court erred in admitting it for the purposes of Ramirez-Diaz's reasonable
apprehension or to establish her credibility.



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No. 68207-5-1/8


affected the outcome of the trial." State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270

(1993) (quoting, State v. Tharp. 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). Here, four

eyewitnesses saw Garcia-Bonilla in Ramirez-Diaz's apartment: Hety, Carolina,

Ramirez-Diaz and Bardales-Munoz. Carolina saw Garcia-Bonilla walk towards Ramirez-

Diaz's bedroom with a knife in his hand, heard a noise, and saw Garcia-Bonilla flee the

apartment through a sliding glass door. Ramirez-Diaz saw Garcia-Bonilla make a

threatening movement towards her holding a knife. And Bardales-Munoz identified

Garcia-Bonilla as the man who stabbed him. The overwhelming evidence of Garcia-

Bonilla's guilt leads us to conclude that the outcome of his trial was not materially

affected by the admission of the ER 404(b) evidence.

      Affirmed.




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WE CONCUR:




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