[No. 78888-0. En Banc.]
Argued May 31, 2007. Decided August 2, 2007.
[1] Criminal Law — Evidence — Other Offenses or Acts — Review — Standard of Review. An appellate court reviews a trial court's interpretation of ER 404(b) de novo as a question of law, and it reviews the trial court's decision to admit or exclude evidence under ER 404(b) for an abuse of discretion. Discretion is abused if it is exercised on untenable grounds or for untenable reasons. A failure by the trial court to adhere to the rule's requirements can be an abuse of discretion. [2] Evidence — Character Evidence — Other Offenses or Acts — Nature of Acts. The "acts" that are inadmissible under ER 404(b) include any acts that are used to show the character of a person to prove that the person acted in conformity with such character on a particular occasion. The prohibition is not limited to unpopular behavior or bad acts. [3] Criminal Law — Evidence — Other Offenses or Acts — Relevance — Purpose Other Than Propensity. Under ER 404(b), evidence of a criminal defendant's prior acts may be admitted for a purpose other than to show criminal propensity, such as motive, plan, or identity. [4] Criminal Law — Evidence — Other Offenses or Acts — Court Rule — Purposes — Exclusion of Propensity Evidence. The purpose of ER 404(b), which generally prohibits the admission of evidence of a criminal defendant's prior acts, is not to deprive the State of relevant evidence necessary to establish an essential element of its case but is, rather, to prevent the State from suggesting that a criminal defendant is guilty because he or she is a criminal-type person who would be likely to commit the crime charged. [5] Criminal Law — Evidence — Other Offenses or Acts — Test. Before evidence of a criminal defendant's prior acts may be admitted under ER 404(b), the trial court must (1) find, by a preponderance of the evidence, that the prior acts 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 of the evidence against its prejudicial effect. This analysis must be conducted on the record. [6] Criminal Law — Evidence — Other Offenses or Acts — Limiting Instructions — Necessity. Prior act evidence admitted against a criminal defendant under ER 404(b) must be accompanied by a limiting instruction. [7] Criminal Law — Evidence — Other Offenses or Acts — Relevance — Determination. Prior act evidence is relevant to a current prosecution if the fact for which the evidence is sought to be admitted is of consequence to the outcome of the prosecution and the evidence tends to make the existence of that fact more or less probable. [8] Criminal Law — Evidence — Other Offenses or Acts — Relevance — Review — Standard of Review. The relevance of prior act evidence is for the trial court to determine. The trial court's ruling will not be disturbed on appeal absent an abuse of discretion. [9] Criminal Law — Evidence — Other Offenses or Acts — Identity — Test. Evidence of a criminal defendant's prior acts may be admitted under ER 404(b) to prove identity by establishing a unique modus operandi if the method employed in the commission of the prior acts and the currently charged crime is so unique that proof that the defendant committed the prior acts creates a high probability that the defendant also committed the charged crime. Prior act evidence is not admissible to prove identity merely because it is similar to the charged crime but is admissible if it bears such a high degree of similarity as to mark it as the handiwork of the accused. The modus operandi must be so unusual and distinctive as to be like a signature. To establish signature-like similarity, distinctive features must be shared between the prior acts and the charged crime. The more distinctive the acts, the higher the probability the defendant committed the charged crime, making the evidence more relevant. That there are few or no dissimilarities between the prior acts and the charged crime adds to the strength of the similarities. [10] Criminal Law — Evidence — Other Offenses or Acts — Identity — Discretion of Court. Whether a criminal defendant's prior acts are sufficiently similar to the conduct underlying the currently charged crime for evidence of the prior acts to be admissible as proof of identity is a determination addressed to the discretion of the trial court. [11] Criminal Law — Evidence — Other Offenses or Acts — Identity — Graffiti Tags. In a criminal prosecution arising from a criminal defendant's alleged graffiti vandalism, evidence of the defendant's prior repeated use of a particular "tag," or signature word incorporated into the graffiti to identify the creator thereof, may be admitted under ER 404(b) to prove the defendant's identity as the vandal, even if there are differences in font, style, medium, and canvas between the defendant's prior tags and the tags underlying the current criminal charge. Such differences bear on the weight to be given the evidence, not its admissibility. [12] Criminal Law — Evidence — Other Offenses or Acts — Common Scheme or Plan — Identity. In general, evidence of a criminal defendant's prior acts is admissible under ER 404(b) to prove a common scheme or plan only if the occurrence of the crime or intent is at issue, not when identity is at issue. [13] Criminal Law — Evidence — Other Offenses or Acts — Review — Harmless Error — Alternative Basis. The improper admission of prior act evidence under one exception allowed by ER 404(b) constitutes harmless error if the evidence also was properly admitted under a different, valid exception. Nature of Action: Joint prosecution of three individuals for multiple counts of first and second degree malicious mischief. The charges arose from graffiti vandalism. Superior Court: After one of the defendants entered a plea of guilty to several counts of malicious mischief, the Superior Court for Whatcom County, No. 02-1-01553-3, Michael F. Moynihan, J., on August 19, 2004, entered a judgment on a verdict finding defendant Foxhoven guilty of 4 counts of first degree malicious mischief and 11 counts of second degree malicious mischief and finding defendant Sanderson guilty of 2 counts of first degree malicious mischief and 5 counts of second degree malicious mischief. The court subsequently dismissed one count against defendant Foxhoven and reduced the degree of three other counts against defendant Foxhoven and one count against defendant Sanderson. At trial, evidence was presented that the graffiti included three different "tags," or signature words incorporated into the graffiti to identify the creator thereof, and that the defendants had used these "tags" on prior occasions. Court of Appeals: The court affirmed the judgments by an unpublished opinion noted at 132 Wn. App. 1053 (2006), holding that the trial court did not abuse its discretion by admitting evidence that the defendants engaged in prior acts of graffiti using the same "tags." Supreme Court: Holding that evidence that the defendants engaged in prior acts of graffiti using the same "tags" was admissible to prove identity by establishing a unique modus operandi, but that the evidence was not also admissible to show a common scheme or plan, the court affirms the judgment. Susan F. Wilk- (of Washington Appellate Project) and Christopher Gibson- (of Nielsen, Broman & Koch, PLLC), for petitioners. David S. McEachran-, Prosecuting Attorney, and Hilary A. Thomas-, Deputy, for respondent. En Banc ¶1 ALEXANDER, C.J. — In 2004, petitioners Lawrence Michael Foxhoven and Anthony Sanderson were each found guilty of several counts of malicious mischief for etching graffiti on the windows of several businesses. The graffiti included three different "tags," I ¶2 In October 2001, graffiti was etched with acid into the windows of a number of businesses in downtown Bellingham. The graffiti consisted of three different tags: "HYMN," "GRAVE," and "SERIES." Investigating officers determined that petitioner Sanderson is associated with the tag "HYMN" and petitioner Foxhoven with the tag "SERIES." Foxhoven, Sanderson, and a third person who was associated with the tag "GRAVE" were each charged in Whatcom County Superior Court with several counts of malicious mischief for the graffiti. The third person pleaded guilty to several counts of malicious mischief, but petitioners proceeded to a joint trial before a jury. ¶3 Before trial, Foxhoven and Sanderson each moved to exclude any evidence of prior bad acts under ER 404(b). Foxhoven specifically objected to the admission of (1) his criminal history of graffiti from California and (2) photographs seized from Foxhoven's home that depicted graffiti involving the "SERIES" tag. CP-F 1. . . . The State alleges that each vandal had adopted a distinctive tag (pseudonym) and vandalized property with that unique tag again and again for years until it had become their vandalism identity. The State alleges that part of the overarching scheme or plan of such vandals is to gain notoriety in the graffiti subculture by placing their adopted vandal names on the property of others . . . . 2. The "probative value" of evidence tending to show that each defendant is committed to a culture that explicitly encourages vandalism and that each defendant marks his crime with his unique signature is extremely high. In fact, such evidence is "necessary" for a fair determination of thee cases. 3. There is no "unfair prejudice." The other acts for which evidence will be admitted are not marginally related or emotionally inflammatory. Instead, they are intimately related to the alleged motive for this crime (notoriety) and not emotionally inflammatory. 4. The probative value is not outweighed by the danger of unfair prejudice. CP-F at 97-98; CP-S at 55-56. ¶4 The challenged evidence was admitted in trial, with the following limiting jury instruction: Ladies and gentlemen of the jury, evidence has been introduced in this case previously and is being introduced at this time on the subject of the defendant's association with persons accused of graffiti vandalism or prior acts of graffiti vandalism for which they're not charged here today. This is being offered by the prosecution for the limited purposes of either modus operandi or common[ ] scheme plan or design. You're not to consider the evidence for any other purpose. I'll give you another instruction on that later on. 4 Verbatim Report of Proceedings (VRP) at 452. ¶5 Foxhoven was found guilty of 4 counts of first degree malicious mischief and 11 counts of second degree malicious mischief; Sanderson was found guilty of 2 counts of first degree malicious mischief and 5 counts of second degree malicious mischief. The judge subsequently dismissed one count against Foxhoven. He also reduced the degree of three other counts against Foxhoven and one count against Sanderson. Both petitioners received sentences that were within the standard range and were ordered to pay restitution. ¶6 The petitioners appealed separately to Division One of the Court of Appeals, each claiming primarily that the evidence described above was improperly admitted under ER 404(b). The Court of Appeals consolidated their appeals and affirmed the trial court, concluding, "The trial court did not err by admitting the evidence that Foxhoven and Sanderson engaged in prior acts of graffiti under the modus operandi exception to ER 404(b) because the tags were signature-like and both defendants admitted they had used the same tags before." State v. Foxhoven, noted at 132 Wn. App. 1053, slip op. at 2 (2006). The Court of Appeals did not discuss whether or not the evidence was admissible to show common scheme or plan. Foxhoven and Sanderson sought review of the Court of Appeals' decision on various grounds, and we granted review on the ER 404(b) issue only. II When evidence of other bad acts is introduced to show identity by establishing a unique modus operandi, the evidence is relevant to the current charge "only if the method employed in the commission of both crimes is 'so unique' that proof that an accused committed one of the crimes creates a high probability that he also committed the other crimes with which he is charged." Thang, 145 Wn.2d at 643 (quoting State v. Russell, 125 Wn.2d 24, 66-67, 882 P.2d 747 (1994) (quoting State v. Hernandez, 58 Wn. App. 793, 798-99, 794 P.2d 1327 (1990))). A prior act " 'is not admissible for this purpose merely because it is similar, but only if it bears such a high degree of similarity as to mark it as the handiwork of the accused.' " State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984) (quoting United States v. Goodwin, 492 F.2d 1141, 1154 (5th Cir. 1974)); see also Smith, 106 Wn.2d at 777-78 (quoting State v. Laureano, 101 Wn.2d 745, 765, 682 P.2d 889 (1984)). The modus operandi " 'must be so unusual and distinctive as to be like a signature.' " Coe, 101 Wn.2d at 777 (quoting EDWARD W. CLEARY, MCCORMICK'S HANDBOOK OF THE LAW OF EVIDENCE § 190, at 449 (2d ed. 1972)). The more distinctive the defendant's prior acts, "the higher the probability that the defendant committed the crime, and thus the greater the relevance." Thang, 145 Wn.2d at 643 (citing Coe, 101 Wn.2d at 778). When there are few or no dissimilarities between prior acts and the crime charged, this adds to the strength of the similarities. Id. at 644 (citing State v. Jenkins, 53 Wn. App. 228, 237, 766 P.2d 499, review denied, 112 Wn.2d 1016 (1989)). "Whether the prior offenses are similar enough to the charged crime to warrant admission is left to the discretion of the trial court." Jenkins, 53 Wn. App. at 236 (citing State v. Bowman, 36 Wn. App. 798, 808-09, 678 P.2d 1273, review denied, 101 Wn.2d 1015 (1984)). ¶14 However, there is a great deal of evidence in this case showing that tags are not mere words; they are akin to signatures. Officer Don Almer, who investigates most of the graffiti in Bellingham, testified that the graffiti world is its own subculture, "a social network and framework that has its own norms, its own, . . . societal kind of operations." 4 VRP at 402. Within that subculture, a tag is a person's identity. Officer Almer explained: Basically a tag is a fingerprint . . . . [A] graffiti vandal [is] not going to use [his or her] real name . . . just because of the negative connotation associated with tagging and the likelihood of facing arrest or imprisonment or incarceration, things like that. . . . [W]hat they do is come up with an identity, a moniker. What they do is they pick a word that . . . they like that has some specific meaning to them . . . . But they pick something that is their identity. They assume this identity. . . . . . . . And generally vandals, . . . they want to choose that name very carefully; because what they want to make sure is, A, nobody else has it in this area . . . and, B, it's something that they are going to enjoy writing or dealing with for many years, because that's their identity. 4 VRP at 409-10. Detective Rodney Hardin, a Seattle Police Department detective assigned to the graffiti unit, testified that, in his experience, taggers do not take on another's identity by stealing or "biting" their tag. 3 VRP at 307; see 3 VRP at 286. Officer Almer agreed and testified that petitioner Sanderson had told him, "You don't do that. People will throw down with you if that happens." 5 VRP at 595. Officer Almer went on to testify, "[Sanderson] said that in the graffiti culture, that's your name. You don't go out and write somebody else's name. The person's name or tag it is is basically going to get pissed, because it's their identity, their source of pride, things like that." Id.; see also 6 VRP at 791. ¶15 There was some evidence that taggers may occasionally draw others' tags. For example, beginning taggers sometimes practice writing others' tags or using others' styles, a tagger may put up or "hook[ ] up" the tag of a friend who cannot be present, 3 VRP at 287, a tagger may list others' tags in a "roll call," a graffiti list of active members of a group or "crew" who tag together, 3 VRP at 285; 4 VRP at 455, and taggers may practice others' styles in a practice book or "piece book," 3 VRP at 303, 304; 4 VRP at 452, 453; 6 VRP at 790. These uses of another's tag are generally distinguishable, though. Detective Hardin testified that a "hook[ ] up" would be in the same location as the tagger's own tag, not on a different building, as in the October 2001 graffiti. 3 VRP at 287. Officer Almer explained that a "roll call" has a different style from other graffiti, and the October 2001 graffiti was not in that style. 6 VRP at 791, 792. And while Officer Almer believes another tagger may have practiced the "HYMN" tag at home, he testified that he does not believe that tagger used the "HYMN" tag in actual graffiti. ¶16 Given this evidence, we agree with the Court of Appeals that the trial court did not abuse its discretion in admitting the challenged ER 404(b) evidence. The fact that there were differences in font, style, medium, and canvas used for the graffiti go to the weight that the jury should attach to the evidence of the prior acts; they do not render the evidence inadmissible. The degree of similarity petitioners would require is necessary only when a criminal has not signed his or her name. In those cases, we look at all the circumstances of a crime and the perpetrator's acts to try to distinguish a type of signature. Here, the equivalent of a signature was in fact provided: a tag. Where a signature is provided, the signature alone is sufficiently distinctive to be admissible under the modus operandi exception to ER 404(b). III ¶18 We conclude that the trial court did not abuse its discretion in admitting this evidence. Although the trial judge may have incorrectly admitted it to show a common scheme or plan, it was clearly admissible to show identity. Differences in font, style, medium, and the objects on which the graffiti was placed go to the weight of the evidence, not its admissibility. In sum, if a tag like the "mark of Zorro" C. JOHNSON, MADSEN, SANDERS, CHAMBERS, OWENS, FAIRHURST, AND J.M. JOHNSON, JJ., and BRIDGEWATER, J. PRO TEM., concur.