State v. Gunderson

¶1 The State charged Daniel Scott Gunderson with domestic violence felony violation of a court order for a September 2010 altercation between himself and Christina Moore, his ex-girlfriend. At trial, Ms. Moore testified that no assault occurred. Although she had not made any prior statement about the incident, let alone an inconsistent statement, the State sought to introduce evidence of Gunderson’s prior domestic violence against her to impeach her. The trial judge admitted this evidence over *919Gunderson’s ER 404(b) objection. Gunderson argues that the trial court should have excluded evidence of his prior bad acts under ER 404(b). We agree and reverse.

*919Facts

¶2 Gunderson and Christina Moore dated for about seven years and have a daughter together. In September 2010, Christina and her daughter were living in Seattle with Bonnie Moore, Christina’s mother.1 At that time, Gunderson was living in Longview, Washington. On September 15, 2010, Gunderson drove up to Seattle to pick up his daughter and take her back to Longview for a visit. A no contact order prevented Gunderson and Christina from communicating, so arrangements regarding the visit were made by Bonnie and Gunderson. That night, Gunderson stayed at Bonnie’s house, planning to leave with his daughter the following morning.

¶3 As Gunderson left the next morning, Bonnie, Christina, and Gunderson had an altercation and Bonnie called the police. By the time officers arrived, Gunderson, Christina, and their daughter had driven away in Gunderson’s truck. Bonnie told the responding officers that Gunderson had hit her and Christina. Gunderson was charged with domestic violence felony violation of a court order under RCW 26.50.110(1) and (4).

¶4 At trial, the State presented a recording of the 911 call, Bonnie’s police statement, Bonnie’s testimony, and Christina’s testimony, among other things. Bonnie testified that they had scuffled in the parking lot as Gunderson tried to leave with his daughter. She recalled Christina, Gunderson, and herself grabbing and wrestling in and around Gunderson’s truck. According to Bonnie, she did not want the truck to leave and was struggling to take the keys. At some point in the commotion, Gunderson was sitting in *920the driver’s seat, ducking from Bonnie. On cross-examination, Bonnie told the court that she did not see Gunderson hitting Christina and that her memory was “kind of a big blur.” Tr. of Proceedings (TP) (Oct. 20, 2011) at 37. On redirect, she testified that Gunderson was “[p]robably defending himself.” Id. at 44. Bonnie said she called the police because she was concerned about Christina being in the truck with Gunderson.

¶5 Though neither the 911 tape nor its transcript are part of the record before us, it was played for the jury during Bonnie’s testimony. Based on the State’s characterization of the tape in its closing argument, it appears that Bonnie was panicked during the 911 call and told the operator that Gunderson had hit Christina.

¶6 During the direct examination of one of the responding officers, the State introduced the statement that he took from Bonnie shortly after she had called the police. In it, Bonnie told the officer that Gunderson had hit her with a closed fist, kicked her, and also hit Christina. Bonnie also told the officer that as the truck was pulling away, she saw Gunderson hitting Christina. The defense did not object to the officer reading the statement to the jury.

f 7 Christina’s testimony painted a contrasting picture. Christina testified that when she came outside, she saw Gunderson and Bonnie “arguing about where he was going and when he was going to bring [the daughter] back.” TP (Oct. 24,2011) at 68. According to Christina, the episode did not involve physical violence. She testified that Gunderson did not hit her or Bonnie. She also told the court that she willingly climbed into Gunderson’s truck and went to his home in Longview.

¶8 Christina’s testimony was not inconsistent with any prior statements that she had made to the police or the prosecutor’s office. Indeed, Christina was never asked to give a statement regarding this case before trial. Nonetheless, the State sought to admit evidence of two prior domestic violence episodes involving Gunderson and Chris*921tina that resulted in his arrest and conviction in order to impeach Christina’s testimony. Specifically, the State sought to challenge Christina’s credibility, believing that Christina had minimized what had happened between her and Gunderson. Gunderson objected under ER 404(b). The trial judge ruled the evidence admissible, finding that (1) a preponderance of the evidence supported the conclusion that the two incidents occurred, (2) the purpose of the evidence was impeachment of Christina’s credibility, (3) the evidence was relevant, and (4) its probative value outweighed its prejudicial effect because it went to witness credibility. As a result of the trial court’s order, the jury received evidence of the two prior domestic violence incidents through Christina’s testimony. The judge gave a limiting instruction, telling the jury that this “testimony was only allowed for the purposes of evaluating [Christina’s] testimony... and for no other purpose.” Id. at 131. The jury convicted Gunderson of domestic violence felony violation of a court order. The Court of Appeals affirmed. State v. Gunderson, noted at 175 Wn. App. 1066, 2013 WL 3990888, at *4, 2013 Wash. App. LEXIS 1794, at *10. We granted review. State v. Gunderson, 179 Wn.2d 1013, 319 P.3d 800 (2014).

Analysis

A. Standard of review

f 9 Evidence of a defendant’s prior bad acts is not admissible to show the defendant has a propensity to commit crimes but may be admissible for some other proper purpose. ER 404(b). In this case, the trial judge admitted Gunderson’s criminal history to impeach Christina’s testimony. While impeachment can be a proper purpose, Gunderson argues that it should be limited to cases where the witness’s own conduct or statements raise questions of credibility. To review an evidentiary decision, we determine what evidentiary rules apply and then determine whether *922the trial judge acted within the discretion accorded by those rules. We review the interpretation of an evidentiary rule de novo as a question of law. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003) (citing State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998)). The trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion. Id. (citing State v. Lough, 125 Wn.2d 847, 856, 889 P.2d 487 (1995)). But “[t]here is an abuse of discretion when the trial court’s decision is manifestly unreasonable or based upon untenable grounds or reasons,” such as the misconstruction of a rule. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997) (citing State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995)). We also consider whether a reasonable judge would rule as the trial judge did. State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).

B. Admissibility of prior acts of domestic violence

f 10 Gunderson argues that because Christina did not recant or contradict any of her prior statements, the trial court erred in admitting evidence of his prior acts of domestic violence against her. See Suppl. Br. of Pet’r at 5-9. Gunderson believes this error warrants reversal and a new trial. Id. at 13. We agree that it was error. Because this error was not harmless, we reverse and remand for a new trial.

1. Exclusion under ER 404(b)

¶11 “ER 404(b) is a categorical bar to admission of evidence [of a prior bad act] for the purpose of proving a person’s character and showing that the person acted in conformity with that character.” State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012) (citing State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982)). But “[t]he same evidence may, however, be admissible for any other purpose, depending on its relevance and the balancing of its probative value and danger of unfair prejudice.” Id. (emphasis omitted).

*923112 For evidence of prior bad acts to be admissible, a trial judge 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.” Thang, 145 Wn.2d at 642 (citing Lough, 125 Wn.2d at 853). “This analysis must be conducted on the record.” State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007) (citing State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986)). The trial court must also give a limiting instruction to the jury if the evidence is admitted. Id. (citing Lough, 125 Wn.2d at 864). The trial court conducted the proper four-step analysis on the record and gave the jury an appropriate limiting instruction. Nonetheless, by not excluding the evidence, the trial court abused its discretion.

¶13 Gunderson argues that the probative value of the evidence at issue here is outweighed by its significant prejudicial effect. Gunderson is correct. Essentially, he challenges the trial court’s conclusion under the fourth prong of the ER 404(b) analysis, which requires a court to weight the probative value against the prejudicial effect. This analysis, though done in the context of an ER 404(b) objection, implicates ER 403. See Saltarelli, 98 Wn.2d at 361 (“ER 404(b) is only the starting point for an inquiry into the admissibility of evidence of other crimes; it should not be read in isolation, but in conjunction with other rules of evidence, in particular ER 402 and 403.”). Here, we agree with Gunderson that the prejudice of admitting a prior domestic violence incident involving Gunderson and Christina outweighs its probative value.

¶14 In State v. Magers, we took great care to specifically establish that “evidence that [the defendant] had been arrested for domestic violence and fighting and that a no-contact order had been entered following his arrest was relevant to enable the jury to assess the cred*924ibility of [the complaining witness] who gave conflicting statements about [the defendant’s] conduct” 164 Wn.2d 174, 186, 189 P.3d 126 (2008) (plurality opinion) (emphasis added).2 In the present case, Christina gave no conflicting statements about Gunderson’s conduct.

¶15 The State concedes that Christina’s testimony was internally consistent but argues that the trial court’s admission of Gunderson’s prior bad acts was nonetheless proper because other evidence contradicted Christina’s account. We decline to extend Magers to apply in such circumstances. That other evidence from a different source contradicted the witness’s testimony does not, by itself, make the history of domestic violence especially probative of the witness’s credibility. There are a variety of reasons why one witness’s testimony may deviate from the other evidence in a given case. In other words, the mere fact that *925a witness has been the victim of domestic violence does not relieve the State of the burden of establishing why or how the witness’s testimony is unreliable.3

¶16 Much like in cases involving sexual crimes, courts must be careful and methodical in weighing the probative value against the prejudicial effect of prior acts in domestic violence cases because the risk of unfair prejudice is very high. See Saltarelli, 98 Wn.2d at 363 (finding that “[a] careful and methodical consideration of relevance, and an intelligent weighing of potential prejudice against probative value is particularly important in sex cases, where the prejudicial potential of prior acts is at its highest”). To guard against this heightened prejudicial effect, we confine the admissibility of prior acts of domestic violence to cases where the State has established their overriding probative value, such as to explain a witness’s otherwise inexplicable recantation or conflicting account of events. See Magers, 164 Wn.2d at 186. Otherwise, the jury may well put too great a weight on a past conviction and use the evidence for an improper purpose. See State v. Brown, 113 Wn.2d 520, 531, 782 P.2d 1013 (1989) (Brachtenbach, J., lead opinion). Accordingly, we decline to extend Magers to cases where there is no evidence of injuries to the alleged victim and the witness neither recants nor contradicts prior statements.4 It was manifestly unreasonable, and therefore an abuse of discretion, for the trial judge to admit evidence of Gunderson’s past domestic violence on the record before us.

*9262. Harmless error analysis

¶17 We now turn to whether the improper admission of the evidence was harmless. In analyzing the erroneous admission of evidence in violation of ER 404(b), we apply the nonconstitutional harmless error standard. Gresham, 173 Wn.2d at 433 (citing Smith, 106 Wn.2d at 780). This requires us to decide whether “ ‘within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’ ” Id. (internal quotation marks omitted) (quoting Smith, 106 Wn.2d at 780). Here, it is reasonably probable that the admission of the two domestic violence convictions materially affected the outcome of the trial.

f 18 The State charged Gunderson with a felony violation of a court order but included the lesser charge of violation of a no contact order in the jury instructions. The only difference between the two crimes is that there must have been an assault to maintain a conviction for the felony violation of a court order. Compare RCW 26.50.110(1), with RCW 26.50.110(4). It is this distinction that makes it reasonably probable that the admission of Gunderson’s prior convictions of domestic violence materially affected the outcome of the trial.

¶19 Neither of the two alleged victims testified that an assault occurred. Christina was unequivocal in stating that Gunderson did not hit her or Bonnie. Even Bonnie stated that Gunderson was “[p]robably defending himself” during the altercation at issue. TP (Oct. 20, 2011) at 44. Indeed, besides the evidence of Gunderson’s prior domestic violence conviction, the State offered only a recording of Bonnie’s 911 call and her subsequent statement to responding officers to establish that an assault had taken place. Although this evidence may be sufficient to find Gunderson guilty, it is reasonably probable that absent the highly prejudicial evidence of Gunderson’s past violence the jury would have reached a different verdict. See Gresham, 173 Wn.2d at 433. *927Accordingly, we cannot say that the trial court’s error was harmless and so Gunderson is entitled to a new trial.

Conclusion

¶20 We agree with Gunderson that the trial court erred in admitting evidence of his prior domestic violence convictions. Because Christina did not make conflicting statements and did not recant and the State did not articulate some other compelling justification, the probative value of this evidence is limited in comparison to its significant prejudicial effect. Not only was it manifestly unreasonable for the trial court to admit this evidence but also we find it reasonably probable that the jury would have reached a different outcome. We reverse and remand to the trial court for further proceedings consistent with this opinion.

C. Johnson, Owens, Fairhurst, Stephens, Wiggins, and Gordon McCloud, JJ., and Penoyar, J. Pro Tem., concur.