                                                                           FILED
                                                                        JUNE 30, 2016
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division Ill




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 32564-4-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
DANIEL RAY ARTEAGA,                           )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. -    Seven months after 34-year-old Kimberly Schmidt was found

dead with a gunshot wound to the head from a handgun found at her side, the State

charged Daniel Arteaga with first degree murder. Mr. Arteaga, who had no criminal

history, had been involved in a six-and-a-half-year affair with Ms. Schmidt. It was

undisputed that Ms. Schmidt told Mr. Arteaga about six weeks before her death that she

had rekindled the relationship with the father of her 12-year-old daughter and, in the

future, wanted to be friends, only, with Mr. Arteaga.

       There was evidence that Ms. Schmidt and Mr. Arteaga remained friendly

thereafter. The State's theory as to his motive for murdering Ms. Schmidt was that

despite his friendly demeanor, he was not willing to be replaced in her life. To augment
No. 32564-4-111
State v. Arteaga


DNA 1 evidence that implicated Mr. Arteaga but was relatively weak, the State offered

"motive" evidence under ER 404(b) of domineering, controlling behavior by Mr. Arteaga

during the years of his and Ms. Schmidt's relationship.

      Mr. Arteaga contends on appeal that the trial court failed to conduct the required

analysis before admitting the ER 404(b) evidence and admitted it for an improper

purpose. He also contends he received ineffective assistance of counsel when his trial

attorney did not move to suppress the DNA evidence and failed to object to testimony

from Ms. Schmidt's mother that placed him in a bad light. Finally, he challenges legal

financial obligations (LFOs) imposed and domestic violence findings included in his

judgment and sentence.

      We find no error or abuse of discretion other than the trial court's domestic

violence designation of the crime of conviction. We affirm the conviction and remand

with directions to strike the domestic violence designation in§ 2.1 of the judgment and

sentence.

                      FACTS AND PROCEDURAL BACKGROUND

       On New Year's Day 2012, Kimberly Schmidt was found lifeless on her bed, her

head covered by a blood-soaked pillow. Her mother, Toni Schmidt,2 discovered her. A


       1
           Deoxyribonucleic acid.
      2
        We refer to Toni Schmidt as "Toni" in order to avoid confusion with the victim.
No disrespect is intended.

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No. 32564-4-111
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handgun inside a black sock lay near Ms. Schmidt's shoulder. The barrel of the gun

protruded from a hole in the toe of the sock.

       Toni had earlier telephoned Mr. Arteaga, well known to her as Ms. Schmidt's

longtime friend,3 after Ms. Schmidt failed to pick up Toni's granddaughter as planned

and could not be reached. Toni even had Mr. Arteaga on the phone when she entered Ms.

Schmidt's home, because she was worried about encountering an intruder. When Toni

found Ms. Schmidt and told Mr. Arteaga she believed she might be dead, Mr. Arteaga

called 911 at Toni's request and then drove to Ms. Schmidt's home.

       Upon arriving, Mr. Arteaga approached the crime scene tape and spoke with

Detective Michael Drapeau. He spoke to the detective at length, disclosing that while he

was married, he had been in a relationship with Ms. Schmidt (a single woman) for over

six years, and that the two had ended their romantic relationship in November. He told

Detective Drapeau that despite the breakup, he had been with Ms. Schmidt much of the

prior day and night. At her request, he had picked up a washing machine she had

purchased the prior morning, delivered it to her home, installed it for her, and helped her

with a couple ofloads oflaundry. After he was unable to dispose of her old washing


       3
         At trial, Toni resisted the characterization of Mr. Arteaga as her daughter's
former boyfriend, stating that "they called themselves 'friends.'" Report of Proceedings
(RP) at 341. But she added, "I'm an adult. I know there's some fringe benefits going on
there." Id.



                                                3
No. 32564-4-III
State v. Arteaga


machine at a recycling center (he arrived after it closed) he returned to her home and

remained there, where, according to him, he and Ms. Schmidt "talked, and laughed, and

cried" for a couple of hours and even had sexual relations. Verbatim Report of

Proceedings (VRP) (Aug. 7, 2012) at 29. Late that night, because Ms. Schmidt was not

feeling well, he traveled to a gas station to pick up nighttime cold medicine to help her

sleep. He claimed that after giving her the medicine she fell asleep, and she was sleeping

when he left her home at around 3 :00 a.m.

       Mr. Arteaga also told Detective Drapeau that Ms. Schmidt had recently renewed a

romantic relationship with Joseph Regalado, the father of her 12-year-old daughter, and

that she had originally planned on spending New Year's Eve with Mr. Regalado.

According to Mr. Arteaga, she changed her mind at around 11 :30 p.m., perhaps because

she wasn't feeling well.

       On that New Year's Day afternoon, Mr. Arteaga not only spoke with Detective

Drapeau at length, he also turned his cell phone over to a police officer, authorized

Detective Drapeau to process the phone, and allowed the detective to take pictures of his

back and chest, search his truck, take a DNA buccal (cheek) swab, and accompany Mr.

Arteaga to his home, where Mr. Arteaga provided the detective with the clothes he had

worn the night before.

       An autopsy confirmed the cause of Ms. Schmidt's death was the gunshot wound to

her head. It identified the manner of death as homicide. A sample of Ms. Schmidt's

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No. 32564-4-III
State v. Arteaga


blood taken during the autopsy was sent to the Washington State Patrol's toxicology lab

and revealed no alcohol or illegal drugs. It did reveal the presence of diphenhydramine-

commonly found in over-the-counter medications such as Tylenol or Tylenol PM-in a

high concentration: 0.43 mg/L, well above the normal therapeutic level of 0.05 mg/L.

Diphenhydramine causes drowsiness or sleepiness, and slows reaction time.

       The state patrol's forensic lab performed analyses on the black sock found on the

handgun as well as a similar sock that Toni found in Ms. Schmidt's dirty laundry. The

analyst compared the DNA discovered on the socks to reference samples from Mr.

Arteaga, Mr. Regalado, Ms. Schmidt, and Toni.

       Three sets of DNA were discovered on the sock found over the gun. Ms.

Schmidt's DNA and an unidentified minor contributor's DNA were discovered on the

side of the sock touching the gun. On the opposite, exposed side of the sock, the analyst

detected a mixture of DNA consistent with the combined profiles for Ms. Schmidt and

Mr. Arteaga. It was 270 times more ·likely that the observed DNA profile was a mixture

of Ms. Schmidt's and Mr. Arteaga's DNA than that it originated from Ms. Schmidt and

an unknown individual selected at random from the U.S. population. Mr. Regalado was

excluded as a possible contributor to that mixture.

       The test performed on the second sock, the one discovered in the laundry,

indicated that Ms. Schmidt was the major contributor. There was also a low level




                                             5
No. 32564-4-111
State v. Arteaga


contributor to the DNA on this sock, but Mr. Arteaga, Mr. Regalado, and Toni were all

excluded as the low level contributor.

       On August 7, 2012, the State interviewed Mr. Arteaga a second time. This time,

Deputy Drapeau read Mr. Arteaga his Miranda 4 rights. In the roughly 40-minute

interview, which was videotaped, Mr. Arteaga repeated much of what he told Detective

Drapeau on New Year's Day. Additional disclosures by Mr. Arteaga were that Ms.

Schmidt had a PayPal account which was linked to an eBay account that he and she

shared, although he stated that "99 percent" of the sales through the eBay account were

his. VRP at 49. Mr. Arteaga also stated he provided Ms. Schmidt with the .25 caliber

Jennings semiautomatic handgun used to kill her. He told detectives she had wanted a

handgun for self-protection and that she ordinarily kept it in a small safe at her bedside.

       Late in the interview, Detective Drapeau told Mr. Arteaga that "there's a lot of

things that I know now from a forensic standpoint ... that I didn't know before." VRP at

67. He said he knew Mr. Arteaga must have been in the room with Ms. Schmidt when

she was bleeding, and that Mr. Arteaga must either have shot Ms. Schmidt or seen her

shoot herself. Mr. Arteaga continuously denied both accusations, insisting that Ms.

Schmidt was alive and sleeping when he left. Mr. Arteaga was arrested that day and was

charged with premeditated first degree murder two days later.



       4
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              6
No. 32564-4-111
State v. Arteaga


       Before trial, and having learned the State intended to offer evidence that Mr.

Arteaga was controlling and domineering in his relationship with Ms. Schmidt, the

defense moved in limine to exclude any reference to uncharged criminal incidents and

other prior bad acts. The State argued the evidence was admissible to show motive,

intent, or res gestae. After taking testimony outside the presence of the jury about what

the trial court characterized as the "controlling issues" (discussed in more detail below), it

excluded evidence about one incident but ruled that other incidents had been shown to

have occurred and would be admitted as "very relevant toward proving the defendant's

intent, if you will, premeditation, et cetera, et cetera, motivation." Report of Proceedings

(RP) at 265.

       At trial, Toni testified that while sorting through Ms. Schmidt's financial affairs

after her death, she discovered that an eBay account her daughter maintained with Mr.

Arteaga had been emptied of funds "[t]wo days after her death," and that "Mr. Arteaga

paid himself the funds that were in the account, her account." RP at 325. Defense

counsel did not object.

       The jury found Mr. Arteaga guilty of first degree murder while armed with a

firearm. The court sentenced him to 360 months and imposed LFOs. Mr. Arteaga

appeals.

                                        ANALYSIS

       Mr. Arteaga makes six assignments of error. The first two claim he received

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No. 32564-4-111
State v. Arteaga


ineffective assistance of counsel when his trial lawyer (l)·failed to move to suppress the

DNA evidence, and (2) failed to object to evidence about his withdrawal of eBay

proceeds from the Paypal account. The third is to the trial court's partial denial of his

motion to exclude the ER 404(b) evidence. The fourth is to the court's imposition of

LFOs without making an individualized inquiry into his ability to pay. The fifth and

sixth are to the court's finding and designation of the crime of conviction as a domestic

violence crime.

       We address the assignments of error in the order stated.

                              I. Ineffective assistance of counsel

       The Sixth Amendment to the United States Constitution guarantees criminal

defendants the right to counsel. "To satisfy the constitutional command, an attorney must

perform to the standards of the profession; failure to live up to those standards will

require anew trial when the client has been prejudiced by counsel's failure." State v.

Walters, 162 Wn. App. 74, 80, 255 P.3d 835 (2011) (citing State v. McFarland, 127

Wn.2d 322, 334-35, 899 P.2d 1251 (1995)).

       A court reviewing a claim of ineffective assistance of counsel engages in a two-

part test. First, the defendant must show he received deficient representation. State v.

Mierz, 127 Wn.2d 460,471,901 P.2d 286 (1995) (citing Stricklandv. Washington, 466

U.S. 668, 688-89, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). Deficient performance is

determined using an objective standard of reasonableness. State v. Stenson, 132 Wn.2d

                                              8
No. 32564-4-III
State v. Arteaga


668, 705-06, 940 P.2d 1239 (1997). "In this assessment, the appellate court will indulge

in a strong presumption that the defendant was properly represented." Mierz, 127 Wn.2d

at 471 (citing Strickland, 466 U.S. at 688-89).

       Second, the defendant must show he or she suffered prejudice as a result of the

deficient performance. Id. (citing Strickland, 466 U.S. at 687). Prejudice will result if

"'counsel's errors were so serious as to deprive the defendant of a fair trial.'" Id.

(quoting Strickland, 466 U.S. at 687). "This showing is made when there is a reasonable

probability that, but for counsel's errors, the result of the trial would have been different."

Id. If one of the two prongs of the Strickland test is absent, we need not inquire further.

State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

                                       DNA evidence

       Turning first to the DNA evidence, Mr. Arteaga argues his trial lawyer should

have filed a motion to suppress the state lab's DNA testing as the fruit of an illegal

search. As support for his argument, he points to the following testimony from Detective

Drapeau about the detective's dealings with Mr. Arteaga on the New Year's afternoon

following the murder:

       Q.    And when did you take a buccal swab from him for DNA purposes?
       A.    Near the end of the interview portion and prior to going and searching
       his   truck.
       Q.    Okay. And he did that voluntarily? He didn't have to do that, correct?
       A.    He did ask me ifhe needed a lawyer.
       Q.    What'd you tell him?
       A.    I said that, um-if I may recall-

                                              9
No. 32564-4-111
State v. Arteaga


       Q. Sure.
       A. -exactly what I told him? (Looking at a document.) I told him that
       DNA all looks the same initially, so I would like his DNA as a sample to
       compare which was his and which was not.

RP at 950-51. According to Mr. Arteaga, the detective's response "coerced [him] into

providing a DNA sample under the guise that all DNA looks the same, which is untrue."

Br. of Appellant at 25.

       Swabbing a cheek to procure a DNA sample constitutes a search under the Fourth

Amendment to the United States Constitution and article I, section 7 of the Washington

Constitution. State v. Garcia-Salgado, 170 Wn.2d 176, 184, 240 P.3d 153 (2010).

Absent an exception from the warrant requirement-and the detective had no warrant

here-a warrantless search or seizure violates article I, section 7. State v. MacDicken,

179 Wn.2d 936, 940, 319 P.3d 31 (2014). Consent to search is an exception. State v.

Hendrickson, 129 Wn.2d at 71.

       For consent to be valid, the individual searched must give consent freely and

voluntarily. State v. O'Neill, 148 Wn.2d 564, 588, 62 P.3d 489 (2003). If the free and

voluntary character of the consent is challenged, the State must prove the individual's

consent was not a result of duress or coercion. Id.; State v. Smith, 115 Wn.2d 775, 789,

801 P.2d 975 (1990). Whether consent was voluntary is a question of fact to be

determined from the totality of the circumstances. O'Neill, 148 Wn.2d at 588 (citing

State v. Bustamante-Davila, 138 Wn.2d 964, 981, 983 P.2d 590 (1999)). Factors that


                                            10
I
    No. 32564-4-111
    State v. Arteaga


    may be considered in determining whether one has voluntarily consented include whether

    Miranda warnings were given, the degree of education and intelligence of the individual,

    and whether he or she was advised of the right to consent. Id.

           Where it is argued on appeal that a trial lawyer's failure to move to suppress

    evidence constituted ineffective assistance, the trial court record may be insufficient for

    the defendant to make the required showing of prejudice, since the State and defendant

    never had an incentive or opportunity to develop the relevant factual record. In arguing

    that he demonstrates the deficiency prong, Mr. Arteaga tries to avoid the problem of an

    insufficient record by arguing that because "[m]oving to suppress would not have

    involved any risk to Mr. Arteaga," his trial lawyer's performance was per se deficient.

    Br. of Appellant at 22.

           Essentially the same argument was rejected by our Supreme Court in State v.

    McFarland, 127 Wn.2d 322. The defendant in McFarland relied on State v. Tarica, 59

    Wn. App. 368,374, 798 P.2d 296 (1990), which had found a trial lawyer's failure to

    move to suppress evidence to be deficient representation based solely on the fact that "the

    motion is made pretrial and not in front of the jury"- ergo, "there does not appear to be

    any way to characterize the failure to bring the motion to suppress as a legitimate trial

    tactic." 127 Wn.2d at 335-36.

           McFarland overruled Tarica insofar as it held that failure to move for suppression

    of evidence is per se deficient representation under the first prong of the Strickland test.

                                                  11
No. 32564-4-111
State v. Arteaga


McFarland, 127 Wn.2d at 337. Even where a motion to suppress does not present risk,

McFarland recognized "[t]here may be legitimate strategic or tactical reasons why a

suppression hearing is not sought at trial." Id. at 336. Among them may be a defense

lawyer's belief that favorable rulings on pretrial issues are more likely if only colorable

arguments are made. "Because the presumption runs in favor of effective representation,

the defendant must show in the record the absence of legitimate strategic or tactical

reasons supporting the challenged conduct by counsel." Id. By relying on an argument

of per se deficiency, Mr. Arteaga fails to make this showing.

       The record suggests Mr. Arteaga's trial lawyer made a tactical judgment that no

colorable argument to suppress the DNA evidence could be made. He filed a motion to

suppress other evidence. Had he believed his client involuntarily provided the buccal

swab, he could have included that suppression argument as well. But the defense lawyer

was aware that Mr. Arteaga repeatedly complied with and consented to police requests on

the afternoon following the murder, making it untenable to argue that his consent to the

buccal swab request was coerced. And Mr. Arteaga's argument on appeal that he was

misled into believing that his DNA would look the same as all other DNA is

unpersuasive; he was told the detective wanted the swab as a sample "to compare which

was his and which was not." RP at 951. No record has been developed about Mr.

Arteaga's education, intelligence and experience, which might have further supported the

voluntariness of his consent.

                                             12
No. 32564-4-III
State v. Arteaga


       Since Mr. Arteaga fails to demonstrate deficient representation, we need not

address the prejudice prong of the Strickland test.

                                Testimony about the eBay account

       Mr. Arteaga's second charge of ineffective assistance of counsel is based on his

lawyer's failure to object to Toni's testimony about his and Ms. Schmidt's eBay account.

During trial, Toni testified:

       Q. [THE STATE]. As part of dealing with Ms. Schmidt's effects, did you
       have to deal with some of her financial issues?
       A. [TONI SCHMIDT]. Um, when she left-no, I didn't. Are you asking
       before or after?
       Q. [THE STATE]. After her death.
       A. [TONI SCHMIDT]. Oh, yes.
       Q. [THE STATE]. You had to probably make an entire collection-
       A. [TONI SCHMIDT]. We had to go into probate and get all of what the
       bills were and stuff, yes.
       Q. [THE STATE]. And was there anything with eBay?
       A. [TONI SCHMIDT]. Yes. Um, when we-the computer went down,
       and so it took a while to get it back on and stuff. And that's when I
       discovered that there was an eBay account. But I knew there kind of was
       one, because that's how they were selling stuff.
       Q. [THE STATE]. And was-was there any activity on the eBay account
       after her death?
       A. [TONI SCHMIDT]. Yes.
       Q. [THE STATE]. And what was that activity?
       A. [TONI SCHMIDT]. Two days after her death Mr. Arteaga paid himself
       the funds that were in the account, her account.

RP at 324-25. Toni later testified she believed that one reason Mr. Arteaga had a key to

Ms. Schmidt's home was "because of the eBay they were doing." RP at 345.




                                               13
No. 32564-4-III
State v. Arteaga


       The only other evidence the jury heard about the eBay account was when Mr.

Arteaga's videotaped interview with detectives was played. In addition to telling

detectives that the eBay dealings were one reason he had a key and routinely went by Ms.

Schmidt's house, Mr. Arteaga provided the following responses to the detectives'

questions:

       Q: Okay. Did you guys have a Paypal account that you shared?
       A: Yes. She had a Paypal account.
       Q: How did-how did that work?
       A: Any of the items that I sold on [eBay] 99 percent of them were mine.
       Occasionally she'd have me put some of her stuff on there and then we
       would just send the money to her bank if I needed something or needed
       money or I would just use the money out of the account to buy things that I
       wanted off of [eBay].

VRP at 49.

       Mr. Arteaga argues the testimony by Toni that he paid himself funds from the

eBay (or PayPal) account was inadmissible under ER 401 and ER 403, and that his

attorney's failure to object was deficient and prejudicial. In support of his argument of

prejudice, he points to the fact that the prosecutor relied on Toni's testimony in closing

argument to imply that Mr. Arteaga did not love Ms. Schmidt as much as he claimed. 5


       5
           The prosecutor stated,
              Ms. Schmidt also testified that just interestingly enough there's
       transactions on the eBay account just three days later. Six and a half years,
       the person he loves more than his wife is dead by a means that he says he
       has no idea how, but you got to keep the eBay account going.
RP at 1031.

                                             14
No. 32564-4-III
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       To prevail on a claim of ineffective assistance of counsel based on a failure to

object, the defendant must show (1) the absence of legitimate strategic or tactical reason

for not objecting, (2) that the trial court would have sustained the objection if made, and

(3) the result of the trial would have differed if the evidence had not been admitted. State

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

       The State's trial theory challenged Mr. Arteaga's claim that he would never hurt

Ms. Schmidt with evidence of behavior on his part that seemed inconsistent with his

professed devotion, so he was at risk that an objection to Toni's statement on relevance

grounds would be overruled. If it was, the objection would draw attention to evidence

that, at best, made Mr. Arteaga look insensitive, and at worst, undercut his claim that he

loved Ms. Schmidt too much to ever hurt her. Mr. Arteaga's trial lawyer had to weigh

that risk against the harm, if any, from the somewhat rambling testimony of Toni-who

acknowledged that she, herself, started packing up and taking Ms. Schmidt's belongings

the day after her murder. Under these circumstances, Mr. Arteaga cannot demonstrate

that his trial lawyer had no legitimate strategic reason for not objecting.

       Also, since evidence of emptying the eBay account was only one piece of the

State's evidence casting doubt on Mr. Arteaga's professed devotion to Ms. Schmidt, and

motive was only one aspect of the State's case against him, he does not demonstrate that

the result of the trial would have differed if Toni's testimony had not been admitted.




                                              15
No. 32564-4-III
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Given his failure to make those two essential showings, we need not examine how the

court would likely have ruled on objections based on ER 401 and 403.

                                   II. ER 404(b) evidence

       Mr. Arteaga next contests the admissibility of ER 404(b) evidence about his

"controlling issues."

       The purpose of ER 404(b) is to prevent the State from suggesting a defendant is

guilty because he is a bad or 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). It is not to

deprive the State of relevant evidence necessary to establish an essential element of its

case. Id. To those ends, the rule excludes evidence of prior bad acts by a defendant as

proof of his character, but does not exclude such evidence where relevant for another

purpose. Before admitting evidence of prior bad acts, ER 404(b) requires that the court

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

the purpose for which the evidence is sought to be introduced, (3) determine whether the

evidence is relevant to prove an element of the crime charged, and (4) weigh the

probative value against the prejudicial effect." State v. Thang, 145 Wn.2d 630, 642, 41

P .3d 1159 (2002).

       Before trial, the State disclosed its intent to offer evidence of "past abusive

behavior" by Mr. Arteaga that would demonstrate he was "controlling and possessive of

Ms. Schmidt." Clerk's Papers (CP) at 50. It identified two friends of Ms. Schmidt-

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No. 32564-4-III
State v. Arteaga


Desiree Tibbs and Deborah Zimmerman-who could offer evidence that Mr. Arteaga

"was very jealous when Ms. Schmidt was with other friends," that he tended to isolate

her from others and "make [her] go with him when she clearly did not want to do so,"

and that he would "attempt to control her behavior and how she dressed." Id. It

characterized the evidence of control as providing a "more complete picture of the nature

of the relationship" between the couple and as bearing on motive, intent and res gestae of

why Ms. Schmidt was murdered-according to the State, Ms. Schmidt's murder "was the

defendant's ultimate act of control in the relationship." CP at 51.

       The anticipated testimony was touched upon several times before trial in motion

papers and at hearings. On the second day of trial, the State called Ms. Zimmerman and

Ms. Tibbs to testify outside the presence of the jury to the matters proposed to be offered

by the State. Ms. Zimmerman had been a friend of Ms. Schmidt's for years, although she

had not spoken to Ms. Schmidt in the two years before the murder. Ms. Tibbs had not

known Ms. Schmidt for as long, and met her through their joint interest in scuba diving,

which was also a passion of Mr. Arteaga's. Ms. Zimmerman and Ms. Tibbs had both

participated in out-of-town and overseas scuba diving excursions with Ms. Schmidt and

Mr. Arteaga.

      Ms. Zimmerman testified that while Ms. Schmidt was social and liked to go out

with her friends, Mr. Arteaga preferred having Ms. Schmidt to himself and would "pout"

if he and Ms. Schmidt ended up doing something that she, not he, wanted to do. RP at

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No. 32564-4-111
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230. One example to which Ms. Zimmerman testified was New Year's Eve 2006, when

Mr. Arteaga begrudgingly accompanied Ms. Schmidt and her friends to a restaurant.

During dinner, Ms. Schmidt asked him to pass the ketchup, in response to which Mr.

Arteaga held the squeeze bottle over Ms. Schmidt's head and ill-temperedly squirted

ketchup into her hair. Other examples of controlling behavior to which she testified were

Mr. Arteaga's telling Ms. Schmidt how to dress and wear her hair, what she should or

should not eat, and keeping her scuba diving equipment in his possession because he

didn't like her diving without him.

       Ms. Tibbs testified more generally to controlling behavior. She was also asked

about a group scuba diving trip to Fiji during which Mr. Arteaga and Ms. Schmidt were

heard loudly fighting. Ms. Tibbs testified that Ms. Schmidt screamed at one point, and

when Ms. Tibbs saw her later, upset and crying, she inferred that Ms. Schmidt had been

hurt by Mr. Arteaga.

       After hearing from the witnesses, the trial court announced that it found the

evidence of controlling issues "very relevant toward proving the defendant's intent, if

you will, premeditation, et cetera, et cetera, motivation." RP at 265. It excluded only the

evidence of the presumed assault in Fiji, which it stated had not been proved. The State

called Ms. Zimmerman to testify at trial, but did not call Ms. Tibbs.

       Mr. Arteaga does not challenge the trial court's ruling that the conduct testified to

by Ms. Zimmerman was proved by a preponderance of the evidence. He contends the

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No. 32564-4-III
State v. Arteaga


court failed to create the record required by ER 404(b ), the evidence was not admitted for

a proper purpose, and that it was unduly prejudicial.

       We review the trial court's interpretation of ER 404(b) de nova, as a matter oflaw.

State v. Fisher, 165 Wn.2d 727,745,202 P.3d 937 (2009). If the trial court interprets ER

404(b) correctly, we review its ruling to admit evidence under the rule for an abuse of

discretion. Id.

                        Conducting the balancing test on the record

       Having determined that evidence of a prior bad act is admissible for a permitted

purpose, a trial judge must balance-on the record-the danger of undue prejudice from

admitting the evidence against its probative value. State v. Carleton, 82 Wn. App. 680,

685, 919 P.2d 128 (1996). Our Supreme Court has stated, "We cannot overemphasize the

importance of making such a record." State v. Jackson, 102 Wn.2d 689, 694, 689 P.2d

76 (1984). While the failure to engage in the balancing on the record is error, it is

harmless if a reviewing court can determine from the record that compliance with the

record making requirement would not have changed the trial court's decision to admit the

evidence. Carleton, 82 Wn. App. at 686.

       At the end of the first day of Mr. Arteaga's trial, the trial court discussed with the

lawyers the fact that it would hear the proposed ER 404(b) evidence from Ms.

Zimmerman and Ms. Tibbs the next day. It stated, "[L]et's make a determination that it

actually happened, and then I need to do the weighing of the prejudice versus the

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No. 32564-4-111
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probative value." RP at 161. Clearly, the trial court had in mind the need to weigh the

probative and prejudicial values of the evidence before ruling on admissibility. We can

infer that its ruling the following day reflected that weighing. We are satisfied that

articulating the balancing would not have changed the court's decision to admit the

evidence. Its silent balancing was error, but harmless.

                       Purpose for which the evidence was admitted

       The burden of demonstrating a proper purpose for admitting the evidence rests on

the State. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003), aff'd, 266 Fed.

Appx. 647 (9th Cir. 2008). Here, the State argued to the trial court that evidence of the

controlling behavior was admissible for the purpose of showing motive, intent, or res

gestae. The trial court admitted the evidence as relevant on issues of intent and

motivation, although not as res gestae. It admitted evidence of the ketchup incident on

the same basis and, while recognizing that it was remote in time, stated it demonstrated a

pattern.

       Evidence of prior bad acts is admissible for purposes other than proof of character,

"such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident." ER 404(b ). The list is not exclusive. State v. Baker,

162 Wn. App. 468,473, 259 P.3d 270 (2011).

       No Washington decision holds that where a victim is murdered after terminating a

relationship, the jilted lover's history of controlling behavior is relevant and admissible

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under ER 404(b) to establish motive. But common sense says that it can be. The

following discussion in a 2014 decision of the Kentucky Supreme Court is persuasive:

      Southworth's exertion of control was proof of a motive for killing Umi, at
      least when combined with proof that she was divorcing him and moving
      with Almira to Nashville. Ifhe was controlling and was about to lose that
      control, then he had a motive to act. That makes the testimony relevant,
      especially given that he denied even having a motive and denied having
      killed his wife. See, e.g., Davis v. Commonwealth, 147 S.W.3d 709, 725
      (Ky. 2004) (noting that the need for evidence proving motive is greatest and
      relevance is clearest when defense is denial of a criminal act); see also
      People v. Fisher, 449 Mich. 441, 537 N.W.2d 577, 582 (1995) ("In cases ...
      in which the proofs are circumstantial and the only witness is the accused,
      evidence of motive would be highly relevant.")[, overruled in part on other
      grounds by People v. Houthoofd, 487 Mich. 568, 790 N.W.2d 315 (2010)].

Southworth v. Commonwealth, 435 S.W.3d 32, 57 (Ky. 2014); accord Brunson v. State,

368 Ark. 313, 323-24, 245 S.W.3d 132 (2006) (testimony of murder victim's coworkers

as to her ex-husband's obsessive behavior demonstrated "the drastic measures that [he]

was willing to take to keep [her] under his control" and established his possible motive in

murdering her and her boyfriend).

       Mr. Arteaga nonetheless argues, citing State v. Sargent, 40 Wn. App. 340, 698

P.2d 598 (1985), rev'd, 111 Wn.2d 641, 762 P.2d 1127 (1988), that because Ms.

Zimmerman had not seen Ms. Schmidt for two years and the ketchup incident took place

eight years before her murder, Ms. Zimmerman's evidence was too remote in time to be

admissible as to intent or motive. In Sargent, the appellate court held that evidence that

the defendant had admitted hitting his wife on one occasion eight months before her


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death was too tenuous to constitute evidence of his intent on the night of her murder. Id.

at 352.

          Sargent is distinguishable. In that case, which was fraught with other reversible

error, the court had admitted evidence that the defendant told an acquaintance, eight

months before his wife's death, that he hit his wife once during an argument and, upset

over having done so, sought counseling. Id. at 351. The evidence was admitted to

establish intent, not motive.

          In State v. Powell, 126 Wn.2d 244, 260, 893 P .2d 615 ( 1995), our Supreme Court,

quoting Black's Law Dictionary, distinguished motive from intent:

          "Motive" is said to be the moving course, the impulse, the desire that
          induces criminal action on part of the accused; it is distinguished from
          "intent" which is the purpose or design with which the act is done, the
          purpose to make the means adopted effective.

126 Wn.2d at 260 (quoting BLACK'S LAW DICTIONARY 1014 (6th ed. 1990)). "Motive

and prior conduct of a defendant is as much a part of the substantive evidence to show

premeditation as is the immediate reflective deliberation which precedes the act itself."

State v. Ross, 56 Wn.2d 344, 349, 353 P.2d 885 (1960).

          The evidence offered by the State against Mr. Arteaga was not a single remote

event offered to show intent, but a pattern of behavior demonstrating an attitude on Mr.

Arteaga's part that could explain why he would kill someone with whom he appeared to

remain friendly. Ms. Zimmerman's evidence about the relationship was dated, according


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No. 32564-4-111
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to her, because Mr. Arteaga had isolated Ms. Schmidt from Ms. Zimmerman and other

friends. Even Mr. Arteaga told Detective Drapeau that Ms. Zimmerman was Ms.

Schmidt's "best friend when I met her," telling the detective, "[T]hey did everything

together. They were like sisters." VRP at 64. The fact that the evidence offered by Ms.

Zimmerman was at least a couple of years old goes to its weight, not its relevance.

       Mr. Arteaga fails to show the trial court abused its discretion in admitting the

evidence.

                              Probative and prejudicial values

       Mr. Arteaga's argument that the trial court erred in its implicit balancing of

probative value versus undue prejudice essentially repeats his argument that there was no

proper purpose for admitting the evidence at all. Here, too, he argues that the remoteness

in time of Ms. Zimmerman's observation of the Schmidt-Arteaga relationship made it

weak evidence, and thereby easily outweighed by the risk of unfair prejudice. We have

already rejected the argument that the evidence was too remote in time to have probative

value. Trial courts have considerable discretion to consider the relevancy of evidence

and to balance its probative value against its possible prejudicial impact. State v. Barry,

184 Wn. App. 790, 80.1, 339 P.3d 200 (2014). Mr. Arteaga fails to show a manifest

abuse of discretion by the trial court here. See id. at 801-02.




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                               Ill. Domestic violence designation

       Mr. Arteaga points out that the judgment and sentence states that for the crime of

conviction, "domestic violence was pied and proved" and that the jury found Mr. Arteaga

guilty of a domestic violence crime. See CP at 355-56. Yet upon the first amendment of

the information, the crime was not charged as a domestic violence crime, nor was it later

prosecuted as one. The State concedes error.

       We accept the State's concession and will remand with directions to strike the

domestic violence designation.

                                 IV. Legal financial obligations

       Finally, Mr. Arteaga asks this court to exercise its discretion and review the trial

court's allegedly improper imposition of LFOs without considering his present or future

ability to pay.

       Since Mr. Arteaga did not object to the trial court's imposition of LFOs, a

threshold issue is whether he may complain about them for the first time on appeal. RAP

2.5(a) states the general rule for appellate disposition of issues not raised in the trial

court: appellate courts will not entertain them. State v. Guzman Nunez, 160 Wn. App.

150, 157,248 P.3d 103 (2011) (citing State v. Scott, 110 Wn.2d 682,685, 757 P.2d 492

(1988)), aff'd, 174 Wn.2d 707, 285 P.3d 21 (2012)).

       In this case, because remand is required to correct the erroneous domestic violence

designation, we consider Mr. Arteaga's challenge. But upon consideration, it fails.

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No. 32564-4-111
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       Under RCW 10.01.160(3), "[t]he court shall not order a defendant to pay costs

unless the defendant is or will be able to pay them," but the statute applies to only

discretionary LFOs. "[F]or mandatory legal financial obligations, the legislature has

divested courts of the discretion to consider a defendant's ability to pay when imposing

these obligations." State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755 (2013).

       All of the LFOs imposed on Mr. Arteaga were-mandatory. They included a

$500.00 victim assessment fee required by RCW 7.68.035, a $200.00 criminal filing fee

required by RCW 36.18.020(2)(h), and $4,065.70 in restitution, required by RCW

9.94A.753(5). They also included a $100.00 DNA collection fee required by RCW

43.43.754 for some crimes, although not the crime of conviction here. 6 As a result, the

court was not required by RCW 10.01.160(3) to consider on the record whether Mr.

Arteaga had the present or future ability to pay the obligations.

       We affirm the conviction and remand with directions to strike the domestic

violence designation at§ 2.1 of the judgment and sentence.

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




       6The inapplicability of the fee is not raised by Mr. Arteaga. The court may have
intended to impose the crime lab fee required by RCW 43.43.690.




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No. 32564-4-111
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Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                ~,j_·
                                                 'ddoway, J.

WE CONCUR:




                                           26
