[Nos. 31980-2-II; 32982-4-II. Division Two. August 7, 2007.]
In the Matter of the Personal Restraint of JOHN KENNETH STEIN, Petitioner. [1] Criminal Law — Dismissal of Charge — Interest of Justice — Burden and Degree of Proof. To justify the dismissal of criminal charges in the furtherance of justice on the grounds of governmental misconduct under CrR 8.3(b), the defendant must prove both governmental misconduct and prejudice by a preponderance of the evidence. [2] Criminal Law — Dismissal of Charge — Interest of Justice — Nature of Remedy — Extraordinary Remedy. The dismissal of criminal charges in the furtherance of justice under CrR 8.3(b) is an extraordinary remedy. [3] Criminal Law — Dismissal of Charge — Interest of Justice — Review — Standard of Review. A trial court's refusal to dismiss criminal charges in the furtherance of justice under CrR 8.3(b) is reviewed for an abuse of discretion. A court does not abuse its discretion unless its decision is manifestly unreasonable or is based on untenable grounds. [4] Judgment — Collateral Estoppel — Elements — In General. Collateral estoppel does not apply to bar the relitigation of an issue unless (1) the issue is identical to one decided in a prior adjudicatory proceeding, (2) the prior proceeding resulted in a final adjudication on the merits, (3) the party against whom the doctrine is asserted was a party or in privity with a party to the prior proceeding, and (4) application of the doctrine will not work an injustice on the party against whom it is asserted. [5] Judgment — Collateral Estoppel — Effect. A reviewing court's decision that collateral estoppel bars the relitigation of an issue is binding on further proceedings in the trial court on remand. [6] Appeal — Review — Law of the Case — Effect — On Remand. Under the law of the case doctrine, an appellate court's decisions are binding on further proceedings in the trial court on remand. [7] Appeal — Review — Law of the Case — Purpose. The law of the case doctrine, which refers to the binding effect determinations made by an appellate court have on further proceedings in the trial court on remand, serves to promote the finality and efficiency of the judicial process by protecting against the agitation of settled issues. [8] Appeal — Review — Law of the Case — Ruling Not Appealed. A Court of Appeals decision or holding on a particular issue that is not altered or disturbed by the Supreme Court constitutes the law of the case that must be followed by the trial court upon remand. The Supreme Court's holdings supersede the Court of Appeals' holdings in the same case only as to issues considered and decided by the Supreme Court. The Court of Appeals' holdings remain the law of the case as to all other issues ruled upon by the Court of Appeals that were not considered by the Supreme Court. [9] Criminal Law — Dismissal of Charge — Interest of Justice — Nature of Remedy — Actual Prejudice — Necessity. The dismissal of a criminal prosecution in the furtherance of justice under CrR 8.3(b) is an extraordinary remedy that is appropriate only if the defendant's right to a fair trial has been actually prejudiced. [10] Criminal Law — Dismissal of Charge — Interest of Justice — Mismanagement by State — Delay of Appeal — Actual Prejudice — Necessity. Governmental misconduct causing delay of a criminal defendant's appeal that results in reversal of judgment is not a basis for dismissing the charge on remand in the furtherance of justice under CrR 8.3(b) if the defendant's right to a fair trial on remand is not actually prejudiced by the delay. The trial court is in the best position to determine whether the delay adversely affected the defendant's ability to defend against the charges. Actual prejudice is not shown by mere speculation that, owing to the delay, the memories of witnesses could have faded, the defendant's power of recollection could have been compromised, and witnesses may have changed their testimony or may be unavailable to testify. The likelihood of prejudice is lessened where the defendant can use trial transcripts to refresh witnesses' memories and can introduce former testimony in the event witnesses become unavailable. Witness credibility determinations remain the province of the trier of fact. [11] Criminal Law — Dismissal of Charge — Interest of Justice — Mismanagement by State — Obtaining Truthful Testimony — Actual Prejudice — Necessity. Any misconduct by the government in obtaining a witness's truthful testimony is not a basis for dismissing a criminal charge in the furtherance of justice under CrR 8.3(b) in the absence of actual prejudice to the defendant. [12] Criminal Law — Former Jeopardy — Review — Issues First Raised on Appeal. A criminal defendant's claim that the collateral estoppel component of the constitutional protection against double jeopardy precludes the State from introducing certain evidence at trial implicates an issue of manifest constitutional error that may be raised for the first time on appeal under RAP 2.5(a)(3). [13] Criminal Law — Former Jeopardy — Constitutional Provisions — State and Federal. The double jeopardy clauses of the Fifth Amendment and Const. art. I, § 9 provide the same protection against multiple punishments for the same offense and subsequent prosecutions for the same offense after acquittal or conviction. [14] Criminal Law — Former Jeopardy — Constitutional Provisions — State Constitution — Construction. The double jeopardy clause of Const. art. I, § 9 is given the same interpretation as the United States Supreme Court gives to the double jeopardy clause of the Fifth Amendment. [15] Criminal Law — Judgment — Collateral Estoppel — Source — Double Jeopardy. The doctrine of collateral estoppel as applied in a criminal case is a component of the constitutional protection against double jeopardy. [16] Judgment — Collateral Estoppel — What Constitutes — In General. Under the doctrine of collateral estoppel, an issue of ultimate fact that has once been determined by a valid and final judgment may not be relitigated between the same parties in any future litigation. [17] Criminal Law — Judgment — Collateral Estoppel — Evidence Related to Acquitted Charge. The doctrine of collateral estoppel does not always bar the use of evidence in a criminal trial simply because it relates to alleged criminal conduct for which the defendant has been acquitted. [18] Judgment — Collateral Estoppel — Review — Standard of Review. The preclusive effect of a jury's verdict under the doctrine of collateral estoppel is reviewed de novo. [19] Criminal Law — Judgment — Collateral Estoppel — Applicability — Test. When a criminal defendant is retried following an acquittal, the doctrine of collateral estoppel does not preclude the State from offering evidence used to obtain the acquittal in the later prosecution if the ultimate issues of fact are not the same and the State is not required to prove beyond a reasonable doubt in the second trial the very issue it failed to prove beyond a reasonable doubt in the first trial. [20] Criminal Law — Judgment — Collateral Estoppel — Acquittal of First Degree Murder — Reversal and Retrial on Separate Charge of Attempted First Degree Murder — Evidence of Multiple Murder Conspiracy. When a criminal defendant is acquitted of a charge of first degree murder with respect to one victim and is convicted of attempted first degree murder with respect to a second victim, the conviction of attempted murder is reversed on appeal, and the State retries the defendant for the charge of attempted murder, the State is not precluded by the doctrine of collateral estoppel from introducing evidence, upon proof by a preponderance of the evidence, that the defendant conspired to murder the first victim as part of a single overarching conspiracy to murder both victims. [21] Criminal Law — Due Process — Fundamental Fairness — Acquittal of First Degree Murder — Reversal and Retrial on Separate Charge of Attempted First Degree Murder — Evidence of Participation in Murder of First Victim. When a criminal defendant is acquitted of a charge of first degree murder with respect to one victim and is convicted of attempted first degree murder with respect to a second victim, the defendant is found liable in a civil trial for the death of the first victim, the conviction of attempted murder of the second victim is reversed on appeal, and the State retries the defendant for the charge of attempted murder, the due process principle of fundamental fairness does not necessarily bar the State from using against the defendant upon retrial evidence of the defendant's participation in the death of the first victim to demonstrate the similarity of the defendant's acts. Additionally, the trial court's failure to instruct the jury that the first jury acquitted the defendant of the first victim's murder does not violate the defendant's due process rights if the court's rationale is that such an instruction might unduly prejudice the defendant by allowing the State to bring in the fact that the civil jury found the defendant responsible for the wrongful death of the first victim. [22] Criminal Law — Evidence — Other Offenses or Acts — Test. When the State seeks to admit evidence of uncharged crimes under ER 404(b), the trial court must (1) find by a preponderance of the evidence that the uncharged acts probably occurred, (2) identify the purpose for which the evidence is sought to be admitted, (3) find that the evidence is relevant to that purpose, and (4) balance the probative value of the evidence against its prejudicial effect. [23] Criminal Law — Evidence — Other Offenses or Acts — Review — Standard of Review. A trial court's decision to admit evidence of a person's prior acts under ER 404(b) is reviewed for an abuse of discretion. A trial court does not abuse its discretion unless its decision is manifestly unreasonable or is based on untenable grounds. [24] Criminal Law — Evidence — Other Offenses or Acts — Evidence Supporting Other Crimes — Occurrence of Act — Offer of Proof — Sufficiency. A trial court may admit evidence of a criminal defendant's uncharged criminal acts under ER 404(b) based solely on an offer of proof submitted by the State. [25] Criminal Law — Evidence — Other Offenses or Acts — Evidence Supporting Other Crimes — Occurrence of Act — Findings — Absence. When a trial court admits evidence of a criminal defendant's prior acts under ER 404(b) immediately after both parties have argued the matter and the court clearly accepts the State's offer of proof, an appellate court may excuse the trial court's lack of explicit findings if the record is sufficient to show that the trial found by a preponderance of the evidence that the defendant was responsible for the prior acts. [26] Criminal Law — Evidence — Other Offenses or Acts — Relevance — Balanced Against Prejudice — Inclusion in Record — Necessity. To ensure thoughtful consideration and to facilitate appellate review when admitting evidence of a criminal defendant's prior acts under ER 404(b), a trial court must make a record of its balancing of the probative value of the evidence against its prejudicial effect. [27] Criminal Law — Evidence — Other Offenses or Acts — Relevance — Balanced Against Prejudice — Discretion of Court. A trial court has wide discretion when weighing the probative value of evidence of a criminal defendant's prior acts against their prejudicial effect. [28] Criminal Law — Evidence — Other Offenses or Acts — Acquittal of First Degree Murder — Reversal and Retrial on Separate Attempted First Degree Murder Charge — Evidence of First Degree Murder — Relevance Balanced Against Prejudice. When a criminal defendant is acquitted of a charge of first degree murder with respect to one victim and is convicted of attempted first degree murder with respect to a second victim, the defendant is found liable in a civil trial for the death of the first victim, the conviction of attempted murder of the second victim is reversed on appeal, and the State retries the defendant for the charge of attempted murder, the trial court may fairly find that the probative value of evidence of the defendant's participation in the death of the first victim outweighs its prejudicial effect for purposes of admitting such evidence in the retrial of the defendant for the charge of attempted murder. [29] Criminal Law — Evidence — Review — Preservation for Review — Failure To Object — Effect. A criminal defendant must specifically object to evidence presented at trial to preserve for review a claim of error in admitting the evidence. The defendant's failure to object will waive the claim of error even if there has been a pretrial ruling as to the admissibility of the evidence. [30] Conspiracy — Acquittal — Effect. An acquittal on a conspiracy charge establishes only that the State failed to prove the existence of a conspiracy beyond a reasonable doubt. [31] Criminal Law — Evidence — Other Offenses or Acts — Acquittal of Conspiracy to Commit First Degree Murder — Reversal and Retrial on Separate Attempted First Degree Murder Charge — Evidence of Single Conspiracy — Degree of Proof. In a prosecution for attempted first degree murder, evidence that the defendant conspired to commit other crimes as part of a single overarching conspiracy to murder the victim is admissible under ER 404(b) if the State proves the defendant's participation in the prior acts by a preponderance of the evidence and the trial court determines that the probative value of the evidence outweighs its prejudicial effect. [32] Criminal Law — Evidence — Other Offenses or Acts — Limiting Instructions — Failure To Request — Effect. A criminal defendant waives a claim that the trial court should have given a limiting instruction upon the admission prior act evidence under ER 404(b) if the defendant did not request a limiting instruction at trial. Nature of Action: Prosecution for one count of conspiracy to commit first degree murder, one count of first degree felony murder, one count of aggravated first degree murder, one count of first degree burglary, and three counts of attempted first degree murder. The charges arose from the defendant's alleged attempts to eliminate people who he believed were conspiring to deprive him of substantial assets he stood to inherit from his father. One of the targets was the father's long-term companion and caregiver. Another was a lawyer who was his father's court-appointed guardian. The father's companion/caregiver was murdered by people allegedly hired by the defendant. The same people made three unsuccessful attempts on the life of the lawyer. In 1989, a jury acquitted the defendant of the charges related to the murder but convicted him of the three counts of attempted first degree murder and one count of first degree burglary related to the attempts on the life of the lawyer. The defendant appealed, but the Court of Appeals dismissed the appeal in 1991 due to his appellate attorney's failure to perfect the record. In 1996, the federal district court ordered reinstatement of the appeal, ruling that appellate counsel was ineffective and that the court reporter, county clerk, and prosecuting attorney, as court officers, contributed to the delay. The Court of Appeals reversed the defendant's convictions in a published opinion reported at 94 Wn. App. 616 (1999) and the Supreme Court affirmed the decision of the Court of Appeals in an opinion reported at Superior Court: After declining to dismiss the charges in the furtherance of justice under CrR 8.3, ruling that the delay of the defendant's appeal did not prejudice the defendant's right to a fair trial on remand, the Superior Court for Clark County, No. 88-1-00788-8, James J. Stonier, J. Pro Tem., on August 16, 2004, entered a judgment on a verdict finding the defendant guilty of one count of first degree burglary and three counts of attempted first degree murder. Court of Appeals: Holding that the trial court did not abuse its discretion by refusing to dismiss the charges against the defendant based on governmental misconduct, that the trial court did not err by admitting evidence that the defendant conspired to commit the murder of which he was acquitted in the first trial, and that the trial court did not err by admitting evidence that the defendant conspired to murder a judge and blow up the Clark County courthouse, the court affirms the judgment. John Kenneth Stein-, pro se. Nancy P. Collins- (of Washington Appellate Project), for appellant/petitioner. Robert M. McKenna-, Attorney General, and Lana S. Weinmann-, Assistant, for respondent. [As amended by order of the Court of Appeals August 21, 2007.] ¶1 ARMSTRONG, J. — In 1989, a jury acquitted John Kenneth Stein of first degree murder charges and convicted him of three attempted murders and burglary. We dismissed his appeal for failure to perfect the record, but in 1996, the federal district court reinstated the appeal in part because officers of the court contributed to this failure. We then reversed Stein's convictions and remanded for a new trial; the Supreme Court affirmed our decision. Before the second trial, the trial court conducted an extensive hearing on what remedy Stein was entitled to for the State-caused delay. The trial court denied Stein's request to dismiss the charges, concluding that the delay did not prejudice Stein. After the retrial in 2004, a jury again convicted Stein of the attempted murders and burglary. ¶2 Stein now argues that the trial court should have dismissed the charges against him due to governmental misconduct, contending that it should have considered governmental misconduct beyond that found by the federal court and that it should have found this misconduct prejudicial. ¶3 Stein also contends that the trial court (1) should not have admitted evidence of his role in the murder for which he was acquitted; (2) abused its discretion in admitting (a) a judge's testimony about cases over which he presided, (b) coconspirator hearsay statements, and (c) testimony of two attorneys about privileged communications; (3) violated his right to confront adverse witnesses by admitting prior testimony and a tape recording made during a deposition; (4) misadvised the jury by referring to several instructions in response to a jury question during deliberations; (5) wrongly imposed consecutive sentences for the attempted murder convictions; and (6) vindictively increased his sentence after his successful appeal. ¶4 Stein presents numerous other issues in a statement of additional grounds for review FACTS ¶5 In 1987, the State charged John Kenneth Stein, also known as Jack Stein, with conspiracy to commit first degree murder, felony first degree murder, aggravated first degree murder, three counts of attempted first degree murder, and first degree burglary. ¶6 The charges related to Stein's attempts to remove people he believed were conspiring to deprive him of substantial assets he stood to inherit from his father, Nicholas Stein. One of Stein's targets was Thelma Lund, Nicholas's long-term companion and caregiver. Another was Ned Hall, a lawyer who was Nicholas's court-appointed guardian. Hall had filed a successful lawsuit to set aside, on the basis of undue influence, a transaction in which Nicholas assigned Stein a real estate sales contract. And Lund testified on behalf of the guardianship and adversely to Stein in that litigation. ¶7 Michael Norberg, Stein's stepson, helped Stein by recruiting others to kill Lund and Hall, promising them money or property in exchange for the killings. Roy Stradley testified that he discussed the murders with Stein and that Stein said he was financing the killings, but Stradley declined to participate. Edward Denney, who also did not participate, testified that Norberg told him Stein would pay for the killings. ¶8 In April 1987, Norberg and Bailey murdered Lund in her home. In June 1987, the men attempted three times to murder Hall. The first time, Bailey and Smith took homemade napalm to Hall's house, intending to burn the house down; they fled when Smith said someone had seen them. The second time, Bailey and Smith went to Hall's house to lure him out of the house so they could shoot him, but Hall refused to come out. During the final attempt, Norberg, Smith, Bailey, and Bailey's brother went to Hall's house during the night and Smith entered through a bathroom window. Smith fired a shot at Hall and shut Hall's thumb in a door, cutting off the tip. ¶9 In 1989, a jury acquitted Stein of the charges related to Lund's murder, but it convicted him of the three counts of attempted first degree murder and one count of first degree burglary related to the Hall incidents. Stein appealed, but his appellate attorney failed to perfect the record, and we dismissed the appeal in 1991. ¶10 In 1996, the federal district court ordered his appeal reinstated, ruling that his appellate counsel was ineffective and that the court reporter, county clerk, and prosecutor, as court officers, contributed to the delay. We reversed Stein's convictions because of error in the accomplice instructions. State v. Stein, 94 Wn. App. 616, 617, 972 P.2d 505 (1999) (published in part) (Stein I). The Washington Supreme Court affirmed. State v. Stein, 144 Wn.2d 236, 238, 27 P.3d 184 (2001) (Stein II). ¶11 In 2003, the trial court, after a hearing under CrR 8.3, declined to dismiss the charges against Stein, ruling that the delay did not prejudice Stein's right to a fair trial on remand. ANALYSIS I. DISMISSAL OF CHARGES UNDER CrR 8.3(b) ¶13 CrR 8.3(b) provides: The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused's right to a fair trial. Stein bears the burden of proving both misconduct and prejudice by a preponderance of the evidence. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003) (quoting State v. Michielli, 132 Wn.2d 229, 239-40, 937 P.2d 587 (1997)). Dismissal is an extraordinary remedy. Rohrich, 149 Wn.2d at 653 (quoting State v. Baker, 78 Wn.2d 327, 332-33, 474 P.2d 254 (1970)). A. CrR 8.3(b) Proceedings ¶15 The Supreme Court concluded its opinion in Stein II by stating: "We remand for a new trial, leaving to the sound discretion of the trial court the question of whether further relief is appropriate under CrR 8.3, or other theories raised in Stein's cross petition." Stein II, 144 Wn.2d at 248. ¶16 The trial court held a CrR 8.3 hearing from September 2002 to April 2003, with continuances. Numerous witnesses testified, including Stein's former attorneys from his first criminal trial and various civil matters, judges who presided over Stein's criminal trial and civil matters, employees of the Clark County clerk's office, and members of Stein's family. Professor John Strait testified on Stein's behalf as an expert on professional responsibility, and doctors Stan Abrams and Caleb Burns gave expert opinions on Stein's memory functions. Judge Roger Bennett, currently on the Clark County bench but the lead prosecutor in the original case, testified about his role as prosecutor and his involvement in the case after the Supreme Court remanded the case for a new trial. ¶17 The trial court ruled that it was bound by the federal district court's order that Stein's original appeal was dismissed and delayed due in part to governmental misconduct. The court also ruled that it could not consider issues that we resolved against Stein, including his claims that he was denied counsel of choice and a speedy trial. Thus, the court considered only whether Stein had shown that the governmental misconduct prejudiced him. ¶18 The trial court found that Stein had not shown that the delay had impaired his memory of the events surrounding the charges or caused his financial loss; that transcripts from the previous trial could be used to refresh witnesses' memories, to impeach witnesses, or as a substitute for live testimony; and that a witness's decision to change his testimony was irrelevant to the issue of actual prejudice. The court also found that Judge Bennett's activities after the Supreme Court's remand did not constitute governmental misconduct or prejudice Stein. Finally, in denying Stein's motion to dismiss, the court concluded that the mere passage of time was insufficient to show actual prejudice. B. Collateral Estoppel and Law of the Case ¶19 Stein maintains that the trial court erroneously applied the doctrines of collateral estoppel and law of the case to bar his claims of right to counsel of choice and right to a speedy trial as additional reasons to dismiss the charges against him. He argues that our previous decision was not a final judgment on the merits because the Supreme Court's decision superseded it when that court granted review. Thus, he maintains, the trial court was not barred from reconsidering issues we had previously decided. ¶22 The trial court also ruled that it was bound by our decision on those issues we had considered. Under the law of the case doctrine, an appellate court's decision is binding on further proceedings in the trial court on remand. State v. Strauss, 119 Wn.2d 401, 412-13, 832 P.2d 78 (1992). This doctrine promotes "the finality and efficiency of the judicial process by 'protecting against the agitation of settled issues.' " Harrison, 148 Wn.2d at 562 (internal quotation marks omitted) (quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988)). ¶24 Yet Stein maintains that the Supreme Court granted review on the counsel of choice and speedy trial issues and then remanded for consideration of these issues. The Supreme Court, however, did not consider these issues in its opinion; it decided only the accomplice instruction issue. Stein II, 144 Wn.2d at 238. An appellate court's decision supersedes a lower court decision only on the issues the appellate court decides. Strauss, 119 Wn.2d at 412. Thus, our opinion remains the law of this case on these issues and the trial court did not abuse its discretion by refusing to consider Stein's claims of denial of the right to counsel of choice and to a speedy trial. C. Prejudice from Appellate Delay 1. Inherent Prejudice ¶25 Stein next contends that prejudice inheres in his delayed appeal, mandating dismissal of his convictions. ¶27 Here, the governmental misconduct resulted in delay of Stein's appeal, not delay in charging him, but the Rohrich court's rationale equally applies. See Rohrich, 149 Wn.2d at 657-58. Thus, the trial court properly considered whether Stein had shown actual prejudice attributable to the delay. 2. Actual Prejudice ¶28 Stein contends that his own and other witnesses' dimmed memories prejudiced his right to a fair trial. He also argues that he suffered prejudice from the delay because Bailey, who testified for the State in Stein's first trial but then testified on behalf of Stein in the civil wrongful death and criminal profiteering action against him, ¶29 In State v. Haga, Division One of this court twice declined to dismiss murder charges filed five years after the deaths occurred, holding that the defendant did not show actual prejudice even though he showed that witnesses' memories had dimmed and several witnesses and certain pieces of evidence were no longer available. State v. Haga, 8 Wn. App. 481, 486-89, 507 P.2d 159 (1973) (Haga I). The court noted that the trial court is in the best position to evaluate whether the delay affected the defendant's ability to defend against the charges. State v. Haga, 13 Wn. App. 630, 634, 536 P.2d 648 (1975) (Haga II). And the possibility of prejudicial delay lessens in the retrial context where the defendant can use trial transcripts to refresh witnesses' memories and can introduce former testimony in the event witnesses become unavailable. United States v. Mohawk, 20 F.3d 1480, 1488 (9th Cir. 1994). ¶30 The trial court found that Stein presented no direct evidence that any witness suffered from a dissipated memory or that Stein was prejudiced by witnesses' dimmed memories. It also found that Stein's own memory function had not deteriorated since 1989. ¶31 Here, although many witnesses had faded memories of the events surrounding the charges, Stein had transcripts from his previous trial to refresh their memories or impeach them. And the passage of time could, and undeniably did, weaken the State's case as much as it did Stein's. See Haga II, 13 Wn. App. at 634. For example, the changes in Bailey's testimony made him a far less credible witness for the State. Moreover, the court ultimately excluded the prior testimony of Dr. Peter Lusky, who was deceased at the time of the retrial and who had testified in the wrongful death and criminal profiteering action that Stein had asked him if he knew where to hire a hit man. ¶32 As the Rohrich court noted, neither the trial court nor an appellate court can screen the credibility of witnesses with potentially faded memories; that remains an issue for the trier of fact. Rohrich, 149 Wn.2d at 659. The same holds true for witnesses who have damaged their credibility by changing their testimony. The trial court considered the effects of the intervening years on Stein's ability to defend himself against the charges and did not abuse its discretion in ruling that actual prejudice did not exist. D. Prejudice from Judge Bennett's Actions ¶34 Judge Bennett testified that he participated in a strategy meeting with members of the Clark County prosecutor's office after the Supreme Court remanded the case for retrial. He also attended a meeting with Bailey and the assistant attorney general who represented the State when the Clark County prosecutor recused his office. He went to that meeting as an "observer" because he was familiar with Bailey's previous testimony and he could tell the State's attorney if Bailey was providing false or incomplete information. ¶35 Although a Clark County detective testified that Judge Bennett went to the meeting to "get [Bailey] back on board," Judge Bennett testified that he did not tell Bailey how to testify, other than truthfully, or offer him any inducements to testify. 5 Report of Proceedings (RP) at 765. Bailey testified that both Judge Bennett and the State's attorney told him he could be jailed if he did not testify. Bailey had also previously sought favors from Judge Bennett, although Judge Bennett did not do any favors for him. ¶36 Stein's expert in professional responsibility, Professor John Strait, opined that, while Judge Bennett's activities in advising the prosecutor's office on strategy were ethical, he violated the Canons of Judicial Conduct by using his status as a judge to benefit others when he participated in the State's meeting with Bailey. In addition, Strait opined that the State's attorneys violated the Rules of Professional Conduct by encouraging Judge Bennett to violate his ethical requirements. ¶37 The trial court found that Judge Bennett's actions did not amount to governmental misconduct and did not prejudice the defense. ¶38 Regardless of whether Judge Bennett's and the State's actions rose to the level of governmental misconduct, Stein must show that they prejudiced him. Rohrich, 149 Wn.2d at 653. Stein's speculation that Bailey would not have testified but for Judge Bennett's urging is unfounded, given that the State could compel Bailey to testify with a subpoena. And Bailey testified that his original testimony against Stein was truthful and the later testimony in Stein's favor was untruthful. The trial court was in the best position to evaluate Bailey's credibility as to the truthfulness of his testimony and the reasons he changed it. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). And it was within the trial court's discretion to determine that presenting truthful testimony, no matter how obtained, did not prejudice Stein's right to a fair trial. ¶39 The trial court did not abuse its discretion when it concluded that any misconduct on the part of Judge Bennett or the State's attorneys on remand did not merit dismissal of the charges against Stein. II. Collateral Estoppel: Murder of Thelma Lund A. Relitigation of Ultimate Issue B. Fundamental Fairness ¶46 The Dowling court considered whether the admission of similar act evidence in that case was "so extremely unfair that its admission violates 'fundamental conceptions of justice' " and concluded that it did not. Dowling, 493 U.S. at 352 (quoting United States v. Lovasco, 431 U.S. 783, 790, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977)). The court rejected Dowling's claims that such evidence was unreliable, that it created a risk that the jury would convict him based on inferences it drew from the acquitted conduct, that it could lead to inconsistent jury verdicts, and that it forced him to defend himself against charges of which he had been acquitted. Dowling, 493 U.S. at 353-54. ¶47 Stein complains that the trial court did not advise the jury that the first jury acquitted him of Lund's murder. The Dowling court rested its decision in part on the trial court's instructions informing the jury that the defendant had been acquitted of the crimes charged in the first trial and emphasizing the limited purpose of the testimony. Dowling, 493 U.S. at 345-46, 353. Here, the trial court gave a preliminary instruction to the jury not to speculate on the outcome of prior related proceedings. But the trial court was concerned that if it allowed references to Stein's acquittal of Lund's murder, in fairness it would have to allow the State to bring in the fact that the civil wrongful death/criminal profiteering jury found Stein responsible for Lund's murder. Ultimately, Stein and the State agreed on the preliminary instruction given. ¶48 Stein also maintains that because the jury might infer his guilt on the current charges from evidence he participated in Lund's death, he had to defend himself against the Lund charges a second time. But the Dowling court rejected the same arguments because the trial court can exclude potentially prejudicial evidence ¶49 The trial court did not violate either the double jeopardy clause or due process in admitting evidence relating to Lund's murder. III. ER 404(B) EVIDENCE OF OTHER CRIMES ¶50 Stein contends that the trial court erred in admitting evidence of Lund's murder and Stein's plans to kill Judge Lodge and blow up the Clark County Courthouse. ¶51 ER 404(b) provides: 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. A. Evidence of Lund's Murder 1. Stein's Involvement ¶54 Stein first asserts that the trial court did not find that he was involved in the Lund murder by a preponderance of the evidence. ¶55 The State presented a detailed offer of proof outlining Bailey's and Norberg's guilty pleas implicating Stein and the jury verdict in the wrongful death/criminal profiteering trial finding by a preponderance of the evidence that Stein was responsible for Lund's murder. Stein argued that he was not involved in the Lund murder. 2. Effect of Acquittal ¶57 Stein next argues that the trial court erred by failing to consider his acquittal of Lund's murder when weighing the probative value of the evidence against its prejudicial effect. He maintains that the acquittal makes evidence of Lund's murder less probative and increases the prejudicial effect. I'm also satisfied that it is probative, and the probative value is not substantially outweighed by the . . . unfair prejudice. The reason for that is that, I think that it's a plan, and the intent formed is to do away with those involved in the estate issues, and . . . that ongoing relationship with [Stein's] father. The matters that go to motive and intent have to be proven by the State, and whatever goes to [Stein's] state of mind at the time is relevant and admissible, it's not unfair to admit those. . . . . I would also note that jurors are certainly capable of separating the two. Your first jury trial, they separated the two, and acquitted on the allegations regarding Ms. Lund, and found you guilty of the ones involving Mr. Hall. But, so I don't think that there's unfair prejudice. . . . 14 RP at 2281. ¶60 Contrary to Stein's assertions, the trial court did consider his acquittal and decided that it did not make the evidence unfairly prejudicial because the jury could separate that crime from the one currently charged. ¶61 Moreover, neither of the cases Stein cites addresses the rather unique situation here, where Stein was acquitted of the act in a criminal trial but found liable in a civil trial. See United States v. Schwab, 886 F.2d 509, 513 (2nd Cir. 1989) (finding abuse of discretion where trial court admitted evidence of one charge of which defendant had been acquitted and one charge that had been dismissed); United States v. Phillips, 401 F.2d 301, 306 (7th Cir. 1968) (finding abuse of discretion where trial court did not consider effect of defendant's acquittal when admitting evidence of crime of which defendant had been acquitted). Although Stein may be correct that the acquittal reduces the probative value of the evidence, the wrongful death/criminal profiteering verdict finding him liable increases it. ¶62 The trial court did not abuse its discretion in balancing the probative value of the evidence of Lund's murder against its potential prejudicial effect. 3. Scope of Evidence Admitted ¶63 Stein maintains that even if the trial court properly admitted evidence of Lund's murder, it should have limited the nature and amount of evidence admitted. ¶64 The State presented the testimony of Lund's daughter, who described Lund's life and family and her own final visit with her mother; Lund's neighbor, who described how she discovered Lund's body; a law enforcement officer who responded to the scene of the murder; the forensic pathologist who performed the autopsy on Lund; and Bailey, who described how the murder took place. The trial court also admitted crime scene photos of Lund's house, although none showed the bathroom where Lund was murdered. B. Evidence of Other Uncharged Crimes ¶66 Stein contends that the trial court erred in admitting evidence of Stein's threats to kill Judge Lodge and to blow up the Clark County courthouse. ¶67 Stein moved to exclude evidence of these alleged crimes. Finding that the evidence was relevant to Stein's involvement in the overall conspiracy, the trial court denied Stein's motion. Bailey testified about a plan to blow up the Clark County courthouse and to kill a judge, but he did not name Judge Lodge. ¶69 But the State may prove prior bad acts by a preponderance of the evidence. Kilgore, 147 Wn.2d at 292. And an acquittal on a conspiracy charge establishes only that the State failed to prove the existence of a conspiracy beyond a reasonable doubt. State v. Miller, 35 Wn. App. 567, 571-72, 668 P.2d 606 (1983). The State's theory of the case in Stein's second trial was the same as in the first: that the attempts on Hall's life were part of a single, overarching conspiracy to remove those Stein believed were standing in the way of his inheritance, including Lund, Hall, and Judge Lodge. The trial court found that the evidence was relevant to prove Stein's role in this conspiracy and concluded that it was not unfairly prejudicial. The trial court did not abuse its discretion in admitting Bailey's testimony. C. Limiting Instruction ¶71 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered. BRIDGEWATER and QUINN-BRINTNALL, JJ., concur.