IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 72723-1-1
Respondent,
DIVISION ONE
v.
DARRIN MARTINS, UNPUBLISHED OPINION
Appellant. FILED: May 2, 2016
SPEARMAN, J. - Darrin Martins appeals his conviction for felony violation
of a no-contact order. He challenges the trial court's admission of his prior acts of
domestic violence under ER 404(b). We affirm.
FACTS
Based on allegations that Martins assaulted his estranged wife, Katherine,
and violated a protective order, the State charged him with fourth degree assault
and felony violation of a no-contact order. Prior to trial, the parties stipulated that
Martins knew a no-contact order was in effect when the charged incident
occurred. Martins then moved to exclude evidence of his prior domestic violence
against Katherine. The court denied the motion, ruling as follows:
Under ER 404(b), ER 403, and State v. Magers, 164 Wash.2d
174 (2008), the Court (1) finds by a preponderance of the evidence
that the misconduct occurred, (2) the misconduct outlined in the
Petition for Order of Protection is admissible to show the victim's
state of mind and whether she was in fear of bodily harm, (3) the
misconduct outlined in the Petition for Order of Protection is
relevant to show the reasonableness of the victim's fear, which is
No. 72723-1-1/2
directly relevant to an element of the crime charged, and (4) after
conducting a balancing test, the Court concludes the probative
value of the misconduct described in the Petition for Order of
Protection is not outweighed by any prejudicial effect.1
At trial, Bellingham Police Officer David Johnson testified that on July 28,
2014, he responded to a report of an "order violation" at an apartment complex.
Verbatim Report of Proceedings (VRP) at 150. Martins told Officer Johnson at
the scene that he came to the apartments because the family's missing cat had
been found. Officer Johnson also spoke to Katherine, who "seemed a little bit
maybe in a state of shock ..." VRP at 153. She told Officer Johnson that
Martins grabbed her face and hair and kicked both of her shins with the back of
his shoe. Officer Johnson testified that Katherine's neighbor, Tracey O'Dell, also
"seemed like she was really freaked out" and "looked scared" and "kind of
shaky." VRP at 155.
Katherine testified that she did not want to attend the trial and did so only
because she had been subpoenaed. When asked to describe the events of July
28, 2014, she initially said "I am not completely clear, I don't know the entire
situation I just want to plead the 5th. I just don't, if I don't remember all the
incidents it's kind of blurry." VRP at 101. Following a colloquy with the court
outside the presence of the jury, Katherine testified that when she and her
children arrived at her apartment on July 28, Martins was sitting outside on the
steps. Katherine entered her apartment and immediately went upstairs to use the
bathroom. Once inside the bathroom, she closed the door.
1 Clerk's Papers at 82.
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Martins followed her into the apartment and opened the bathroom door.
Katherine put her hand and body against the door but was unable to close it.
Martins then reached his hand through the door opening. Katherine testified that
her memory of these events was "blurry" and she wasn't "totally sure." VRP at
111. She then testified that Martins reached around the door and grabbed her
hair, but added that "[mjaybe he was trying to get the cat, I'm not sure." Id. She
agreed that Martins kicked her with some part of his foot and that she thought
about trying to escape through the bathroom window. When asked if she was
scared, Katherine said "I don't know what I was." VRP at 113. She admitted that
her neighbor Tracy came over during the incident but denied that Tracy had to
pull Martins away from her. After Martins left, Katherine walked to Tracy's house
"to be in a safe place [.]" VRP at 115.
When asked about the no-contact order in effect at the time of the
incident, Katherine claimed "it wasn't my choice" and said she obtained the order
because "the Women Care Shelter" recommended it. RP 107. She conceded,
however, that she had outlined reasons why she and her children needed a
protective order and that the court found them sufficient to enter a protective
order. The prosecutor later returned to this topic:
Q. I mean you filed a document with the court telling the Court why
you needed an order of protection; is that correct?
A. The Women Care Shelter actually took a little, they took several
little stuff, yeah, I guess so.
Q. Uh-huh.
A. But it was a little bit overexaggerated.
Q. You told the court that Mr. Martins had threatened to skin you
alive in the front yard?
A. That was not any time recent at all, that was a long time ago
and, um, yeah.
No. 72723-1-1/4
Q. . . . It's been a violent past with Mr. Martins?
A. He's, oh gosh. I'm not the best of person either, you know.2
A short time later, the court verbally instructed the jury that they could consider
"other crimes or wrongs or acts . . . which occurred before July 28, 2014, . .. only
for. . . the limited purpose of determining the reasonableness of any fear that
Ms. Martins may have had " VRP at 120.
On cross-examination, Katherine testified that their missing cat had
returned home the day of the incident. She also testified she was "slightly" afraid
for her safety when Martins tried to enter the bathroom. VRP at 123. When asked
if her fear was due to Martins' current or past behavior, she said "I don't really,
you know, I don't recall." Id.
Katherine's neighbor, Tracey O'Dell testified that she picked up the
Martins' missing cat from animal control on the day of the incident. As she
brought the cat into Katherine's apartment she heard "a struggle and a lot of
screaming" from a male voice. VRP at 130. She described the struggle as
"thumping against a wall." VRP at 131. O'Dell sent all the children to her house
and then entered Katherine's apartment. She found Katherine "pinned against
the bathroom wall" by Martins. "[H]e had his hands on her arms" and "she was on
her tiptoes .. . like she was climbing backward . .. trying to climb into the wall. . .
to try to escape." VRP at 132. O'Dell said she would "never forget the look on
her face. I've never seen eyes so big and someone so absolutely terrified [.]" |d_.
O'Dell wedged herself between Martins and Katherine and forcibly pushed
2 VRP at 116-17.
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No. 72723-1-1/5
Katherine away from Martins and down the hall. Katherine and O'Dell then
retreated to O'Dell's apartment and locked the door.
A short time later, Martins arrived at O'Dell's apartment and said he
wanted to see the cat. He rubbed the cat "like there was nothing wrong or kind of
blaming Katy for [the cat's] condition . . . it just was a little odd [.]" VRP at 134-35.
O'Dell asked him to leave and he did.
O'Dell and Katherine later realized that Katherine and Martins' son was
with Martin in Katherine's apartment. O'Dell walked over and asked Martins if she
could take the boy to her apartment. Martins became "agitated," "aggressive and
loud." VRP at 138. He was shouting, pacing "aggressively," and calling O'Dell
names. O'Dell then returned to her apartment and called the police.
On cross-examination, O'Dell admitted she had previous convictions for
five counts of theft. O'Dell explained that she lost her job because of an injury
and stole from a grocery store. The parties stipulated to the admission of a
portion of O'Dell's 911 call, which stated in part:
[OPERATOR]: ... the wife and the two little girls, okay. And
has there been any type of assault that has occurred?
[O'DELL]: [W]hen I walked .. . into the house it's almost as if
he was starting to grab her. I don't know it's been, you know, it's, I
have heard him be verbally very abusive and like when I went over to
talk to him he was getting all irate . . . .3
At the close of the evidence, the State moved to dismiss the fourth degree
assault count, arguing that the evidence did not support an assault separate from
3 VRP at 217.
No. 72723-1-1/6
the assault necessary for the felony violation of a no-contact order. The court
granted the motion and dismissed the assault count.
The jury found Martins guilty of felony violation of a court order. He
appeals.
DECISION
The sole issue on appeal is whether the trial court abused its discretion in
admitting Martins' prior acts of domestic violence under ER 404(b). We review a
court's decision to admit or exclude such evidence for abuse of discretion. State
v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008) (citing State v. Pirtle. 127
Wn.2d 628, 648, 904 P.2d 245 (1995)). A court abuses its discretion if its
decision is manifestly unreasonable or based on untenable grounds. Id. The trial
court did not abuse its discretion.
ER 404(b) limits the admission of prior bad acts:
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.
This rule bars the use of prior bad acts for the purpose of proving a person's
character and action in conformity with that character. State v. Gresham, 173
Wn.2d 405, 420, 269 P.3d 207 (2012). However, the rule permits the admission
of such acts for purposes listed in the rule or approved by the courts. State v.
Cook, 131 Wn. App. 845, 849, 129 P.3d 834 (2006) (The permitted purposes
listed in the rule are not exclusive).
-6
No. 72723-1-1/7
Courts have admitted prior acts of domestic violence under ER 404(b) for
a number of purposes. They include assisting the jury in assessing the credibility
of a victim who recants or makes inconsistent statements, showing the
reasonableness of a victim's fear where fear is an element of the charged
offense, and explaining the victim's delayed reporting of an offense. State v.
Magers, 164 Wn.2d at 183 (acts of domestic violence admissible to show victim's
reasonable fear and to judge credibility of a recanting victim); State v. McCarthy,
178 Wn. App. 90, 103, 312 P.3d 1027 (2013) (citing Magers for proposition that
defendant's prior acts are admissible to show victim's reasonable fear of bodily
injury when such fear is an element of the charged assault). State v. Gunderson,
181 Wn.2d 916, 925, 337 P.3d 1090 (2014) (prior acts admissible to explain
recantation or conflicting account of events); State v. Baker, 162 Wn.App. 468,
474-75, 259 P.3d 270 (2011) (prior acts admissible to assist jury in assessing
credibility of victim who delays reporting or changes her story).
Here, the court admitted Martins' prior acts of domestic violence on the
issue of Katherine's reasonable fear.4 Contrary to Martins' assertions, the
decision was well within the court's discretion. To convict Martins of felony
violation of a court order, the jury had to find, among other things, that Martins
committed an assault while violating the no-contact order. The court's instruction
defining assault stated in part that an assault "is also an act. . . done with the
intent to create in another apprehension and fear of bodily injury, and which in
4 The court's written instructions stated that evidence of prior crimes, wrongs or acts
could "be considered for the limited purpose of determining the reasonableness of Katherine
Martins' fear." CP at 45.
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fact creates in another a reasonable apprehension and imminent fear of bodily
injury. . . ." CP at 43. Because the reasonableness of Katherine's fear was an
element of the offense, Martins' prior acts of domestic violence were relevant and
admissible. Magers, 164 Wn.2d at 182; State v. Ragin, 94 Wn. App. 407, 410,
972 P.2d 519 (1999) (defendant's prior violent acts admissible to show it was
reasonable for the victim to be fearful of the defendant's threats); State v.
Barragan, 102 Wn. App. 754, 760, 9 P.3d 942 (2000) (prior assaults admissible
to show that victim reasonably feared defendant's threats would be carried out).
Martins argues in conclusory fashion that the prior domestic violence
evidence "was overly prejudicial." Brief of Appellant at 10. We need not address
claims that are insufficiently argued. State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d
440 (1990) (appellate court need not consider claims that are insufficiently
argued); State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999)
(appellate court need not consider conclusory arguments); State v. Thomas, 150
Wn.2d 821, 868-69, 83 P.3d 970 (2004) (court will not review arguments that
receive only passing treatment). In any event, all such evidence is prejudicial,
and reversal is not warranted unless its potential prejudice is "unfair" and
outweighs its probative value. "Evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice." ER 403; Gunderson,
181 Wn.2d at 922-23. Considering the value of evidence showing that Katherine
reasonably feared bodily injury, the court's verbal and written limiting instructions,
and the fact that the prior acts evidence was limited in scope and did not involve
8
No. 72723-1-1/9
arrests, convictions, or assaults, the court did not abuse its discretion in
concluding the probative value of the evidence outweighed any prejudicial effect.
Affirmed.
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:bA^J
WE CONCUR:
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no
9