IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 74107-1-1
Respondent, DIVISION ONE
V.
JAVIER ALEJANDRO MACIAS-CAMPOS, UNPUBLISHED
Appellant. FILED: April 17, 2017
Cox, J. — Javier Macias-Campos appeals his judgment and sentence. We
hold that the trial court did not abuse its discretion in admitting testimony
concerning Macias-Campos's previous acts of domestic violence. Such
testimony was relevant to essential elements of the charged crimes and was not
unduly prejudicial. Accordingly, we affirm.
In 2014, Macias-Campos and M.O. became friends and lived together
temporarily, along with Macias-Campos's girlfriend R. Eventually M.O. decided
to leave.
Later that year, Macias-Campos and M.O. reconciled and returned to
living together. They also became intimate. But Macias-Campos began to
abuse M.O. He became controlling and jealous. When M.O. attempted to reach
out to a friend, Macias-Campos responded by hitting her and then having sex
with her against her wishes. M.O. escaped for a time and then returned. Around
this time, Macias-Campos told M.O. about how he had restrained R. during their
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relationship. He explained how he had violently hit her in the head with a gun
and tied her up in the trunk of his car while he drove around.
In early 2015, Macias-Campos and M.O. booked a room at the Hillside
Motel on Aurora Avenue. M.O. managed to send a Facebook message to her
mother explaining that she felt she could not leave and that she was scared.
But Macias-Campos became enraged when he found out that M.O. was
communicating with her mother and a friend. He told her she could not leave the
motel room. She retreated to the bathroom but he followed, accusing her of
cheating with a former boyfriend. He began hitting her. He threatened her with a
screwdriver and a knife. He said he would "do what the cartel does with
girlfriends who cheat." And he tied her hands behind her back with a twisted coat
hanger.
Eventually he relented and M.O. furtively contacted her mother to alert the
motel staff. Police were notified and, responding, arrested Macias-Campos. The
State charged Macias-Campos with felony harassment and unlawful
imprisonment, amongst other crimes, each with a domestic violence aggravator.
Pretrial, Macias-Campos moved to exclude evidence of his prior
misconduct under ER 404(b). It later appeared that such evidence concerned
M.O.'s testimony about what Macias-Campos had told her of how he treated R.
The trial court declined to exclude such evidence but later provided a limiting
instruction. It explained that it admitted the challenged testimony for the limited
purpose of showing that M.O. could reasonably fear that Macias-Campos would
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act on his threats and that he could intimidate M.O. into remaining constrained in
the bathroom against her will.
The jury found Macias-Campos guilty of fourth degree assault, felony
harassment, unlawful imprisonment, and witness tampering. The jury also found
these crimes occurred in a domestic relationship. The trial court entered its
judgment and sentence in accordance with the jury's verdict.
Macias-Campos appeals.
PRIOR ACTS EVIDENCE
Macias-Campos argues that the trial court abused its discretion in
admitting evidence under ER 404(b) of his alleged past acts of domestic violence
against R. We disagree.
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.
Thus, the rule bars admission of certain evidence when used to prove
character but not when used to prove a proper purpose. In order to determine
whether evidence is admissible in a particular instance, the trial court conducts a
four part test.
It must:
(1)find by a preponderance of the evidence that the misconduct
occurred,(2) identify the purpose for which the evidence is sought
to be introduced,(3) determine whether the evidence is relevant to
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prove an element of the crime charged, and (4) weigh the probative
value against the prejudicial effect.[1]
The proponent of the evidence has the burden to prove the first three
elements.2 We review for an abuse of discretion the trial court's decision to admit
or exclude evidence under such a rule.3 The appellant bears the burden of
proving an abuse of discretion.4
Regarding the first element, Macias-Campos does not contest whether his
misconduct towards R. occurred or whether M.O. believed it had. Thus, this
element is undisputed.
But regarding the second element, the parties dispute the purpose for
which the evidence was proffered. Macias-Campos argues that the trial court
"likely" admitted the contested evidence in order to allow the impeachment of
M.O. But the State argues that the evidence was admitted because it went to
elements of the charged crimes. Specifically, the State contends that it was
necessary to show M.O. reasonably feared Macias-Campos in order to prove she
was restrained, and that it was necessary to prove an element of the felony
harassment charge.
Here, the court explained its reasoning for admitting the challenged
testimony and gave a limiting instruction consistent with this purpose.
Specifically, it explained that the jury could consider the testimony for "the limited
1 State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012).
2 State v. Ashley, 186 Wn.2d 32, 39, 375 P.3d 673(2016).
3 Id. at 38-39.
4 Id. at 39.
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assessment of whether or not[M.O.'s] purported fear of the defendant was
reasonable and whether or not she felt free to leave, with regard to the unlawful
imprisonment, but not for any other purpose." After M.O. testified, the trial court
provided a limiting instruction. It explained:
Alleged past behavior by Mr. Macias-Campos toward this
witness is admissible only for two purposes: Purpose number one
is to assess whether or not there was a reasonable basis for this
witness to be in reasonable fear with regard to any alleged threats
that were made to her on the date charged, and the other purpose
for which you can consider this testimony is whether or not the
alleged restraint of her on the date alleged was accomplished by
intimidation in some way. All right? Not for any other purpose.[6]
Jury Instruction 7 is substantively identical to this oral instruction.
Thus, the record indicates that the court admitted the challenged
testimony to show whether there was a reasonable basis for M.O.'s fear of
Macias-Campos's threat, and whether Macias-Campos restrained her by
intimidation. Contrary to Macias-Campos's argument, it was not admitted to
impeach or bolster M.O.'s credibility.
The third element requires the trial court to determine whether the
evidence is relevant to prove an element of the crime charged. Evidence is
relevant if it has "any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence."6
5 Report of Proceedings (August 6, 2015) at 71.
6 ER 401.
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Evidence of past domestic violence is probative of a victim's state of
mind.7 The supreme court has specifically found evidence of a defendant's past
bad acts against a victim relevant "highly probative" to show restraint by
intimidation.8 And this court has held admissible evidence of past acts directed
against a third party if "necessary to put the threats [against the victim] in
context."9
Here, Macias-Campos does not appear to contest the relevance of this
evidence. And the elements of the charged crimes demonstrates the relevance
of the testimony.
To prove unlawful imprisonment, the State must show that the defendant
"knowingly restrain[ed] another person."1° RCW 9A.40.010(6) defines restraint
as the restriction of "a person's movements without consent and without legal
authority in a manner which interferes substantially with his or her liberty.
Restraint is 'without consent' if it is accomplished by (a) physical force,
intimidation, or deception. . . ."
The felony harassment statute requires the State to prove the defendant
threatened the victim and, in so doing, "place[d] the person threatened in
reasonable fear that the threat will be carried out."11
7 State v. Fisher, 165 Wn.2d 727, 744-45, 202 P.3d 937 (2009).
8 Ashley, 186 Wn.2d at 48.
9 State v. Raqin, 94 Wn. App. 407, 412, 972 P.2d 519 (1999).
10 RCW 9A.40.040(1).
11 RCW 9A.46.020(b).
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Here, the testimony was probative of the elements in these charging
statutes. As discussed above, the trial court admitted the testimony to show that
any restraint was nonconsensual because Macias-Campos accomplished it by
intimidating M.O. The testimony was also admitted to show the reasonableness
of M.O.'s fear in regard to the threats Macias-Campos made. As such, the
testimony was relevant to proof of both of these crimes.
The fourth element requires that the trial court weigh the probative value
against the prejudicial effect. Macias-Campos argues that the trial court abused
its discretion in admitting the challenged testimony because its prejudicial effect
outweighed its probative value. Not so.
We remain mindful that "'courts must be careful and methodical in
weighing the probative value against the prejudicial effect of prior acts in
domestic violence cases because the risk of unfair prejudice is very high.'"12
These acute concerns require the State to prove the "overriding probative value"
of the challenged evidence.13
State v. Ashley14 is instructive. Baron Ashley and Makayla Gamble had
dated for several years.15 During this time, Ashley had violently abused
12 State v. Gunderson, 181 Wn.2d 916, 925, 337 P.3d 1090 (2014).
13 Id.
14 186 Wn.2d 32, 375 P.3d 673(2016).
15 Id. at 35.
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No. 74107-1-1/8
Gamble.16 Eventually the two separated and, for several years following, they
saw each other sporadically.17
Sometime later, police went to arrest Ashley and his sister for robbery and
motor vehicle theft.16 When they did so, Ashley, his sister, and Gamble were at
the sister's home.16 The police left, returning a few days later.2° They knocked
on the door but no one answered.21 After obtaining a key, police entered the
house.22 They met Gamble in the living room.23
They asked her if Ashley was inside and she told them he was upstairs.24
After arresting him, police asked Gamble why she had "helped Ashley hide."25
She explained that Ashley had detained her in the bathroom and only allowed
her to leave once police entered the home.26
16 1d. at 40.
17 Id. at 35.
18 id.
19 Id.
2° Id.
21 Id.
22 Id.
23 Id.
24 Id.
26 Id.
26 Id.
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The State charged Ashley with unlawful imprisonment with domestic
violence.27 It moved pretrial to introduce evidence of Ashley's earlier domestic
violence against Gamble in order to show that Ashley had intimidated Gamble
into remaining constrained to the bathroom.28 The trial court granted that
motion.29
On review, the supreme court affirmed the admission, explaining that it
was reasonable to conclude "that Gamble, whom Ashley allegedly abused
numerous times over an eight-year period, could continue to fear or be
intimidated into obeying Ashley years after the most recent incident."30 As such,
the trial court had properly found that the State proved the "overriding probative
value of this evidence because the evidence went directly to a necessary
element of the crime."31 The evidence was vital to help the jury assess whether
Ashley restrained Gamble by intimidation.32 It showed that Gamble's response
"was not inexplicable, not unreasonable, and that she was [held] without
consent."33
27 Id.
28 id.
29 Id.
39 Id. at 45.
31 Id.
32 Id.
33 Id. at 46-47.
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Here, the State had to prove, for the felony harassment charge, that M.O.
could reasonably fear that Macias-Campos would carry out his threats. And it
had to prove, for the unlawful imprisonment charge, that M.O. did not consent to
her restraint, perhaps out of intimidation. For both, it had to show the reasonable
basis for M.O.'s fear.
Thus, it offered evidence that M.O. knew Macias-Campos had committed
previous acts of domestic violence against R. This evidence "went directly to a
necessary element of the crime[s]."34 It explained M.O.'s actions and put them in
appropriate context. As in Ashley, such evidence had the "overriding probative
value" to support its admission, even in the sensitive context of a domestic
violence tria1.35 Thus, the trial court did not abuse its discretion in admitting the
challenged testimony.
But Macias-Campos argues that the supreme court's decision in State v.
Gunderson36 bars admission. This argument is unpersuasive.
In that case, the State brought a domestic violence charge against Daniel
Gunderson.37 At trial, one of the alleged victims, Christina Moore, testified that
no such incident took place.35 The State, in response, offered evidence of
Gunderson's two prior acts of domestic violence against Moore in order to
34 1d. at 45.
35 Id. at 48.
36 181 Wn.2d 916, 925, 337 P.3d 1090 (2014).
37 Id. at 918.
38 Id. at 920.
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impeach her testimony.39 The court concluded that the evidence was sufficiently
relevant to Moore's credibility and admitted it.49
The supreme court reversed, holding that prior act evidence was not
admissible to impeach a victim's credibility when the victim had "neither
recant[ed] nor contradict[ed] prior statements."41 Admitting such evidence
outside those circumstances was an abuse of discretion.42
Here, Gunderson is not on point. As discussed above, the State offered,
and the trial court admitted, the challenged testimony to show necessary and
essential elements of the charged crimes. It was not admitted to bolster or
impeach credibility. Thus, Gunderson and Macias-Campos's argument that M.O.
had not recanted her testimony are irrelevant to this determination. Ashley and
similar cited cases control.
We affirm the judgment and sentence.
WE CONCUR:
39 Id. at 920-21.
40 Id. at 921.
41 Id. at 925.
42 Id.
11
State Of Washington v. Javier Alejandr Macias-campos
Combined Opinion