¶122 (dissenting) — The trial court correctly denied the State’s first attempt to introduce gang evidence, essentially reasoning the State had not shown that Tyrick Clark’s shooting was gang related: “I think the infusion of the gang — without more, without saying that the incident at [54th Street Bar and Grill] involved all three [codefendants], that it was a known battle over drug turf or economic related offenses, something along those lines ... is stretching the admissibility of gang [evidence].” 1 Report of Proceedings (RP) at 51. But the trial court erred when, on reconsideration, it allowed the evidence after viewing earlier photos of the three defendants together flashing gang signs. Because the State did not initially show that the Clark shooting was gang related, and the photos provided no support for the argument that Clark’s shooting was gang related, a necessary predicate to admitting gang evidence, I dissent.
FACTS
I. State’s Offer of Proof
¶123 The State asserted that the gang evidence would establish that Randall Embry, Bryant Morgan, and Andre Parker knew each other; that Parker recruited Embry and Morgan, because of their related gang associations, to shoot or assist in shooting Clark; and that Morgan and Embry were willing to assist because Parker was in a related gang, the Hilltop Crips. The State also asserted that the gang evidence showed Parker’s motive to “retaliate]” for the January 1 incident because “when you have issues involving gang members, this is expected and it’s more than just loss of a fight, go back and fight again, it can be very deadly,” and that “[t]he level of violence that gang members use as compared to other citizens [was] important to convey *768to the jury.” 1 RP at 19, 38-39. Further, the State argued that the gang evidence was important to show Embry’s “willingness, because of his gang association with the Hoover [ Crip]s,” to shoot Clark and that Parker and Morgan were “fellow gang members . . . acting in support of each other, considering the January 1st incident.” 1 RP at 38. Finally, the State argued that the gang evidence would show Embry, Morgan, and Parker’s premeditated, planned shooting of Clark.
II. Gang Evidence at Trial
¶124 At trial, a witness testified that Clark was an active member of the Young Gangster Crips.16 Morgan acknowledged that he was in the “Five Deuce” or 52nd Street Hoover Crips, and Embry acknowledged belonging to the 74th Street Hoover Crips, both Seattle gangs. Parker acknowledged his membership in the Hilltop Crips, a Tacoma gang. Clark testified that the January 1 nightclub fight involved Young Gangster Crips and Hilltop Crips, but the fight was not gang related. The State offered no evidence that the Young Gangster Crips and Hilltop Crips were rival gangs or were feuding over the January 1 incident. Witnesses testified that Parker and Clark had a “beef” with each other from the incident, but no one testified that it had any gang connection. 6 RP at 908. Finally, the State offered no evidence that Embry, Morgan, or Parker wore gang colors, displayed bandanas, uttered words or phrases related to gangs, exchanged gang taunts with Clark, or otherwise engaged in gang activity immediately before, during, or after Clark’s shooting.
¶125 Detective Ringer testified that Hoover Crips “get along well” with Hilltop Crips and that the two gangs had “worked together” in committing “drug crimes” and “[property kind” of crimes. 7 RP at 1263-64; 8 RP at 1396-97. But *769he could recall no shooting incident in which the two gangs had collaborated. Furthermore, he testified that Embry and Morgan were members of the Seattle Hoover Crips gang, the Seattle and Tacoma Hoover Crips were “separate and distinct,” Detective Ringer’s focus was not on King County gangs, and he had not studied specific Hoover Crips gang affiliations. 8 RP at 1394-95, 1463-64.
¶126 Detective Ringer also testified that he had seen “[n]umerous occasions” where “seemingly insignificant incidents quickly escalate[d] to violence.” 8 RP at 1387. For example, gang members who misperceive a hand wave as flashing a gang sign will sometimes respond with a fatal shooting. But Detective Ringer offered no testimony, either generalized or specific to the Hilltop and Seattle or Tacoma Hoover Crips, of gang mores regarding respect among gang members; of the necessity for retaliation in the face of perceived disrespect; of the necessity for or willingness of gang members to assist a member of an allied gang in retaliating for perceived disrespect; or that Embry, Morgan, or Parker adhered to such mores. Although Detective Ringer testified that gang members will generally lend each other vehicles or firearms, which, if used to commit a crime, the borrower will dispose of, he did not testify that the Hilltop Crips, Seattle or Tacoma Hoover Crips, Embry, Morgan, or Parker followed these mores.
III. State’s Closing Argument
¶127 The State argued that Parker arranged Clark’s shooting because of his “level of anger [and] degree of disrespect” caused by Clark punching him. 10 RP at 1564-65. The State argued that Embry shot Clark to retaliate for the punch of Parker and because Embry felt “[a]nimosity” toward Clark because
[Embry] knew the characters involved, he knew the YGC [(Young Gangster Crips)] connection, the Andre Parker connection, the Hilltop Crip connection.
*770So [Embry], who’s pictured with the Hilltop Crips, who hangs with the Hilltop Crips even though he’s a Hoover [Crip, Clark is] the bad guy. . . . That’s the enemy. That’s the person that [Embry] has, by virtue of his relationship with the others, animosity toward.
11 RP at 1764-65.
¶128 The State argued, regarding Hilltop and Hoover Crips, that the question was
“[d]o they associate with each other” such that in situations like this, logically, you need help, you get help.
And the answer’s yes. We have pictures of them together. We know that these particular individuals, regardless of their gang connection, associate with each other. We know from the evidence that they are in two different gangs.
11 RP at 1771-72 (emphasis added).
¶129 Finally, the State argued:
Now, other than the gang world, which is what the relevance of this is, what other type of situation would you have where a casual acquaintance that wasn’t at the [January 1] incident would come to McCabe’s and the other guy would come up and say, “Hey, I had this incident with this guy [on January 1] two months ago. Would you mind killing him for me?” “No. I am not going to kill him.”
But where would that kind of mentality and that kind of comfort level come? Drip. Spider Deuce. Deezy .... They have that comfort level. All of them are okay with this shooting. All of them.
11 RP at 1772 (emphasis added).
ANALYSIS
I. Standard op Review
¶130 I agree with the majority’s discussion of our standard of review. I would add only that a trial court bases a discretionary decision on untenable grounds or makes it for *771untenable reasons if it rests on facts unsupported in the record. State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008). Also, we review a trial court’s decision to admit gang evidence under ER 404(b). Under that section, evidence of prior bad acts is presumptively inadmissible. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003); see also State v. McCreven, 170 Wn. App. 444, 458, 284 P.3d 793 (2012). 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.
In other words, ER 404(b) prohibits admitting evidence to show a person’s character to prove the person acted in conformity with that character on a particular occasion. State v. Everybodytalksabout, 145 Wn.2d 456, 466, 39 P.3d 294 (2002); see also McCreven, 170 Wn. App. at 458 (stating the same); State v. Mee, 168 Wn. App. 144, 153-54, 275 P.3d 1192 (stating the same), review denied, 175 Wn.2d 1011 (2012).
“ER 404(b) is not designed to deprive the State of relevant evidence necessary to establish an essential element of its case, but rather to prevent the State from suggesting that a defendant is guilty because he or she is a criminal-type person who would be likely to commit the crime charged.”
Mee, 168 Wn. App. at 154 (internal quotation marks omitted) (quoting State v. Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007)). ER 404(b) forbids the State from suggesting this inference to the jury because it contradicts “the fundamental American criminal law belief in innocence until proven guilty, a concept that confines the fact finder to the merits of the current case in judging a person’s guilt or innocence.” State v. Wade, 98 Wn. App. 328, 336, 989 P.2d 576 (1999).
*772II. Insufficient Factual Nexus
¶131 We consider gang evidence prejudicial due to its general “inflammatory nature.” State v. Asaeli, 150 Wn. App. 543, 579, 208 P.3d 1136 (2009). Before the trial court can admit gang evidence, it must find a nexus between the gang evidence and the charged crimes. State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009); cf. State v. Bluehorse, 159 Wn. App. 410, 429-31, 248 P.3d 537 (2011) (holding that substantial evidence did not support finding that crime was gang related). Thus,
generalized evidence regarding the behavior of gangs and gang members, absent (1) evidence showing adherence by the defendant or the defendant’s alleged gang to those behaviors and (2) a finding that the evidence relating to gangs is relevant to prove the elements of the charged crime, serves no purpose but to allow the State to “suggest! ] that a defendant is guilty because he or she is a criminal-type person who would be likely to commit the crime charged.”
Mee, 168 Wn. App. at 159 (alteration in original) (quoting Foxhoven, 161 Wn.2d at 175); see also Bluehorse, 159 Wn. App. at 431 (stating that testimony from police or other gang experts is insufficient, standing alone, to support a finding that the charged crime was gang related).
¶132 Here, the State failed to connect the defendants’ gang affiliations with their alleged motives for committing the crime or with their alleged concerted actions. Accordingly, the gang evidence was irrelevant and inadmissible.
A. Motive and Premeditation
¶133 For example, in State v. Yarbrough, 151 Wn. App. 66, 75-76, 80, 84-87, 210 P.3d 1029 (2009), we held that gang evidence was admissible to establish Yarbrough’s motive and mental state where (1) Yarbrough was a Crips gang member; (2) Yarbrough perceived the victim as a member of a rival gang; (3) members of the gangs had identified *773themselves in a confrontation four days earlier and a Crip threatened to open fire on the rival gang; (4) and Yarbrough shot the victim after uttering, “ ‘This is Hilltop Crip, cuz, what you know about that.’ ”
¶134 Similarly, in State v. Campbell, 78 Wn. App. 813, 815-17, 822-23, 901 P.2d 1050 (1995), we held that gang evidence was admissible to establish premeditation, motive, and intent where (1) Campbell was a Los Angeles Santana Blocc Crips gang member and a crack cocaine dealer; (2) the victims were members of a local Bremerton Crips gang who sold crack cocaine in the same location as Campbell; (3) Campbell and his partner, also a Los Angeles Crip, perceived the Bremerton Crips as inferior “wannabes”; (4) Campbell confronted the victims and threatened to kill them some time before their murder; (5) the night before the murders, Campbell and his partner discussed “fixing the wannabes”; and (6) while together after the murders, Campbell or one of his partners said, “ T told you we were going to get those mother f[******]. I told you we was the baddest ones in Bremerton.’ ”
¶135 In both Yarbrough and Campbell, the State proved gang activity and gang talk just before, during, and after the shootings. It then presented expert testimony to explain the gang terminology, the gang’s hierarchical structure, and its mores. In Yarbrough, 151 Wn. App. at 79-80, Detective Ringer testified about the importance of respect in gang culture, that gang members could earn and maintain respect by their willingness to use firearms, and that gang members accepted that other gangs could not show disrespect to their gang. In Campbell, 78 Wn. App. at 818, 822, expert testimony established that in gang culture, the rival gang member victims’ displays of disrespect toward Campbell and intrusion on his drug selling turf were grounds for retaliation and murder.
¶136 But in Scott, 151 Wn. App. at 523-24, the trial court admitted evidence of Scott’s gang affiliation based on the *774State’s offer that the evidence would establish that Scott’s assault on the victim was motivated by her display of disrespect toward the gang. At trial, however, the State did not elicit from its gang expert witness the importance of respect in the gang’s culture, the gang’s beliefs about appropriate responses to disrespect, or “any connection between gang membership” and the assault. Scott, 151 Wn. App. at 525. Division Three of this court held that the trial court improperly admitted the gang affiliation evidence because the State failed to connect that evidence to the alleged motive for retaliating — disrespect shown to the gang. Scott, 151 Wn. App. at 528-29; see also State v. Ra, 144 Wn. App. 688, 701-02, 175 P.3d 609 (2008) (trial court improperly admitted evidence where the State presented no evidence on the gang’s mores).
¶137 This case is more like Scott than Yarborough and Campbell. The State proved how gangs in general commit crimes. But it did not connect any gang activities or mores to the shooting of Clark; nor did it prove that Embry, Morgan, and Parker or their gangs embraced and followed the general gang standards. Without such evidence the State could argue, as it did here, only that the motive for the shooting must have been retaliation because the defendants are gang members and gang members retaliate; and that Morgan and Parker must have known what Embry intended and must have helped because that is what gang members do. But this is the precise inference that ER 404(b) prohibits: the defendant is guilty because he is a “ ‘criminal-type person.’ ” Mee, 168 Wn. App. at 159 (quoting Foxhoven, 161 Wn.2d at 175).
¶138 For the same reasons, the gang evidence was irrelevant to establish that Parker, Embry, and Morgan premeditated the crime. Although testimony about the January 1 nightclub fight involving Clark and Parker may have been relevant to establish Parker, Embry, and Morgan’s shared, retaliatory motive for shooting Clark, the State tainted this evidence with gang evidence without establish*775ing its nexus to the crime. Because the trial court based its decision on facts that ultimately were not established in the record, it abused its discretion in admitting the gang evidence as proof of motive. See Quismundo, 164 Wn.2d at 504; Scott, 151 Wn. App. at 528-29 (reversing when evidence at trial failed to establish nexus).
B. Res Gestae and Concerted Action
¶139 The trial court accepted the State’s argument that the gang evidence was admissible to establish the relationship between Parker, Embry, and Morgan, and to show that they acted in concert. Evidence of prior bad acts may be admissible under the ER 404(b) res gestae exception to show the defendants’ concerted acts. State v. Lane, 125 Wn.2d 825, 834-35, 889 P.2d 929 (1995); State v. Boot, 89 Wn. App. 780, 790, 950 P.2d 964 (1998).
¶140 In Lane, 125 Wn.2d at 835, three defendants were charged with murder, and the evidence suggested only one of them had shot the victim. Our Supreme Court held that evidence of a series of crimes the defendants committed together during the 48 hours before and after the murder was admissible under the res gestae exception to show that “when [the defendants] committed crimes, each one had a role to play and,” thus, “each was in some manner responsible and accountable” for the murder. Lane, 125 Wn.2d at 835.
¶141 In Boot, 89 Wn. App. at 783, Boot and his cousin, Jerry, were charged with murder. Two nights before the murder, Boot put a gun to someone’s head, but everyone present taunted him by saying he was “too much of a baby” to shoot the person. Boot, 89 Wn. App. at 785. Boot and Jerry then committed a series of crimes, during which Boot possessed, brandished, and used a firearm. Boot, 89 Wn. App. at 784-85. Division Three of this court held that this evidence, as well as evidence about gangs and of Boot’s gang affiliation, was admissible under ER 404(b) as proof of motive and premeditation. Boot, 89 Wn. App. at 789-90. *776When addressing the res gestae exception, however, Division Three did not mention the gang evidence, stating only:
Boot and Jerry were codefendants. Evidence of the Boots’ actions close in time and place to Ms. Reese’s murder was necessary to show how they acted together. Their interaction was also probative of who was in possession of the gun and who used it. The evidence established an escalating chain of events of increasingly serious crimes in a short period of time. Its admission was necessary to permit the jury to get the whole picture and try to make some sense out of a senseless crime.
Boot, 89 Wn. App. at 790.
¶142 Unlike in Lane or Boot, here, the State presented no evidence that Parker, Embry, and Morgan committed a series of crimes shortly before the shooting. Thus, the State did not prove a pattern of recent criminal behavior that tended to prove the role of each defendant in the shooting. Furthermore, although Detective Ringer generally testified that gang members lend each other vehicles or firearms and the borrower will dispose of them if used in a crime, he did not testify that the Hilltop Crips; the Seattle or Tacoma Hoover Crips; or Parker, Embry, and Morgan adhered to any such tenets or behaviors, which would have connected such conduct to the shooting. See Mee, 168 Wn. App. at 159.
¶143 Although Detective Ringer testified that Hilltop Crips and Tacoma Hoover Crips had “worked together” in committing drug or “[p]roperty kind” of crimes, he could not recall them collaborating in a shooting or another violent crime. 8 RP at 1396-97. Moreover, he did not testify that their mores required or encouraged the two gangs to assist each other in committing such crimes or that Parker, Embry, and Morgan adhered to any such tenets. See Mee, 168 Wn. App. at 159; Ra, 144 Wn. App. at 701-02.
¶144 Finally, Detective Ringer testified that Embry and Morgan were members of Seattle Hoover Crips gangs, the Seattle and Tacoma Hoover Crips were “separate and distinct,” Detective Ringer’s focus was not on King County *777gangs, and he had not studied specific Hoover Crips gang affiliations. 8 RP at 1394-95, 1463-64. Accordingly, Detective Ringer’s testimony about Hoover Crips was not relevant to Seattle Hoover Crips, the gangs actually involved in this case. See Asaeli, 150 Wn. App. at 566, 578-79 (gang expert’s testimony neither relevant nor helpful to jury when expert’s experience predominately involved African-American gangs, expert did not testify to knowledge about Samoan gangs, and case involved a Samoan gang).
¶145 In the absence of testimony explaining why Hilltop or Hoover Crips gang culture might require or encourage Parker, Embry, and Morgan to commit this shooting, the gang evidence again suggested only the forbidden inference: some gang members lend each other firearms and vehicles and commit some crimes together; Parker, Embry, and Morgan were gang members; therefore, they worked together in committing this shooting. See Foxhoven, 161 Wn.2d at 175. Although the photographs depicting Embry and Morgan and Embry and Parker together were relevant to show they knew each other and may have acted together as friends,17 the State tainted this evidence with gang evidence whose relevancy was ultimately unsupported by the evidence. See Quismundo, 164 Wn.2d at 504; Scott, 151 Wn. App. at 528-29.
III. Insufficient Probative Value
¶146 Even if the gang evidence was relevant for an admissible purpose, its prejudicial effect outweighed its probative value. In balancing the evidence’s probative value against its prejudicial effect under ER 404(b), the trial court must read ER 404(b) in conjunction with ER 403. State v. Smith, 106 Wn.2d 772, 775, 725 P.2d 951 (1986); Mee, 168 Wn. App. at 154. “ER 403 requires exclusion of *778evidence, even if relevant, if its probative value is substantially outweighed by the danger of unfair prejudice.” Smith, 106 Wn.2d at 776; see also Mee, 168 Wn. App. at 154 (stating the same).
¶147 For all the above reasons, any connection between Parker’s, Embry’s, and Morgan’s gang affiliations and Clark’s shooting was attenuated and speculative at best. And Detective Ringer’s testimony about gang culture and behavior in general told the jury nothing about the Seattle Hoover Crips and the Tacoma Hilltop Crips, the gangs actually involved in this case. As we held in Mee, 168 Wn. App. at 159, such generalized evidence, absent “evidence showing adherence by the defendant or the defendant’s alleged gang to those behaviors ... serves no purpose” other than suggesting the propensity arguments forbidden by ER 404(b). See also Asaeli, 150 Wn. App. at 579 (gang expert’s testimony “not probative due to its general and conclusory nature”). Accordingly, the trial court abused its discretion in admitting the gang evidence because the danger of unfair prejudice substantially outweighed its probative value. Accord Mee, 168 Wn. App. at 159.
IV. Harmless Error
¶148 I would also hold that admitting the gang evidence was harmful with respect to Parker’s and Morgan’s convictions and Embry’s conviction of conspiracy to commit first degree murder. The erroneous admission of evidence under ER 404(b) “requires reversal only if the error, within reasonable probability, materially affected the outcome of the trial.” State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993).
¶149 Here, Parker’s and Morgan’s convictions for attempted first degree murder and first degree unlawful possession of a firearm were based on accomplice liability. Under RCW 9A.08.020(3)(a)(i)-(ii), an accomplice is one who, “[w]ith knowledge that it will promote or facilitate the *779commission of the crime, . . . encourages . . . or . . . [a] ids” another person in committing a crime. Mere presence during and assent to a crime is insufficient to show accomplice liability. State v. McDaniel, 155 Wn. App. 829, 863, 230 P.3d 245, review denied, 169 Wn.2d 1027 (2010). Instead, the defendant must have associated himself with the criminal conduct, participated in the criminal conduct, and sought to make the crime successful by his actions. State v. Robinson, 73 Wn. App. 851, 855, 872 P.2d 43 (1994) (citing In re Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979)). An accomplice does not have to have specific knowledge of every element of the crime, but must have general knowledge of the specific substantive crime committed. State v. Roberts, 142 Wn.2d 471, 512-13, 14 P.3d 713 (2000); State v. Sweet, 138 Wn.2d 466, 479, 980 P.2d 1223 (1999).
¶150 Here, without the gang evidence, the State proved only that Parker, Embry, and Morgan interacted at McCabe’s; Embry had some contact with Clark; when Clark exited the nightclub, Embry and Morgan jogged off in the direction where the shooting occurred; witnesses saw individuals matching Embry’s and Morgan’s descriptions getting into a vehicle similar to Parker’s car; Parker shortly thereafter reported his car stolen; and the car was later found in the Green River.
¶151 Although this evidence may have suggested that Parker and Morgan encouraged or aided Embry in the assault of Clark, I am satisfied that there is a reasonable probability the jury would have reached a different result without the prejudicial gang evidence. Indeed, the State’s closing argument exhorted the jurors to ask themselves where, “other than the gang world,” would three acquaintances agree to murder someone. 11 RP at 1772. Again, the State was simply urging the jury to make the forbidden inference that the defendants must be guilty because they are gang members. See Mee, 168 Wn. App. at 159; Wade, 98 Wn. App. at 336. I would reverse Parker’s and Morgan’s convictions and remand for further proceedings.
Motions for reconsideration denied December 6,2012 and January 22, 2013.¶152 Likewise, under RCW 9A.28.040(1),
A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he or she agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.
The subject crime of the conspiracy is an element of the crime. State v. Stark, 158 Wn. App. 952, 962, 244 P.3d 433 (2010) (citing State v. Smith, 131 Wn.2d 258, 262-63, 930 P.2d 917 (1997)). The subject crime of the conspiracy alleged here is attempted first degree murder. Thus, the State had to prove that Embry, Morgan, and Parker agreed to attempt the murder of Clark. Accord Stark, 158 Wn. App. at 962.
¶153 The State presented no direct evidence of such an agreement, offering instead the equivocal evidence of the defendants’ conduct at the nightclub and the improperly admitted evidence that they were gang members who likely would agree to participate in such a shooting. As discussed above, I would hold that the gang evidence materially affected Embry’s trial for conspiracy requiring that we reverse his conspiracy conviction and remand for further proceedings.
¶154 But, because Clark and his companion identified Embry as the shooter, the gang evidence was harmless as to Embry’s convictions for attempted first degree murder and first degree unlawful possession of a firearm.
¶155 As Washington courts have observed, it is a fundamental principle of American criminal law that a jury should be “confine [d] ... to the merits of the current case in judging a person’s guilt or innocence.” Wade, 98 Wn. App. at 336. Here, there is too great a risk that the jury convicted Embry, Morgan, and Parker based on irrelevant and prejudicial evidence of their gang affiliations and generalized gang testimony, as opposed to evidence of their actions on the night of Clark’s shooting. For all the above reasons, I dissent.
Review denied at 177 Wn.2d 1005 (2013).
Judge David H. Armstrong is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.
Clark testified at trial that he had quit the Young Gangster Crips a few years earlier.
Detective Ringer testified about the photographs without remarking on or explaining the gang signs being flashed by those depicted. The State could have sought admission of the photographs at trial with the gang signs obscured or, at least, used them at trial without any reference to gangs.