Complaint Review: Gail R Bradley

http://www.mrsc.org/mc/courts/slip/appellate/198740MAJ.htm

State of Washington v. Gail Raymond Bradley

THIS MAN MAY be dangerous:

198740MAJ
~
DO NOT CITE. SEE RAP 10.4(h).

Court of Appeals Division III
State of Washington

Opinion Information Sheet

Docket Number: 19874-0-III
Title of Case: State of Washington
v.
Gail Raymond Bradley
File Date: 03/21/2002


SOURCE OF APPEAL
----------------
Appeal from Superior Court of Stevens County
Docket No: 001001635
Judgment or order under review
Date filed: 12/29/2000
Judge signing: Hon. Rebecca Baker


JUDGES
------
Authored by Stephen M. Brown
Concurring: Dennis J. Sweeney
Kenneth H Kato


COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
John A. Troberg
Attorney At Law
358 E Birch Ave Ste 201
Colville, WA 99114

Counsel for Respondent(s)
Allen C. Nielson
Deputy Prosecuting Attorney
PO Box 390
Colville, WA 99114

David H. Bruneau
Deputy Prosecuting Attorney
215 S Oak St
Colville, WA 99114

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

http://www.mrsc.org/mc/courts/slip/appellate/198740MAJ.htm


STATE OF WASHINGTON, ) No. 19874-0-III
)
Respondent, ) Division Three
) Panel One
v. )
) UNPUBLISHED OPINION
GAIL RAYMOND BRADLEY, ) )
Appellant. ) FILED

BROWN, A.C.J.--

A jury convicted Gail R. Bradley of second degree
assault with a firearm. Mr. Bradley appeals arguing the trial court erred
in admitting evidence of prior bad acts. We disagree, and affirm.
FACTS

In October 2000, the State charged Mr. Bradley with one count of assault in
the second degree. Mr. Bradley allegedly pointed a handgun at Brent
Naccarato.


Mr. Bradley moved solely on hearsay grounds to exclude Victoria Lynn Orren's statements regarding Mr. Bradley's comments about displaying his gun to others. After observing that the statements would be admissions as
to Mr. Bradley, the trial court brought up the application of bad act principles under ER 404(b). The State argued all ER 404(b) exceptions fit except identity under the following offer of proof:

Well Your Honor, what I have is a statement from the witness who states that, 'On several occasions Bradley has bragged to myself and others about driving around town waiving his gun at younger, ignorant as he calls them, people just to scare them. On one occasion in a bar, 2:00 a.m. bar time, he did not want to give up his drink. When he finally did, he told me he
would have thought twice about taking it if he had brought his gun that night.'

Now what we have here, Your Honor, is an incident where this defendant pulled a firearm on two individuals on the streets of Chewelah and claims that - I don't know what he's going to claim at the time of trial - to a police officer, he said he pointed the gun at no one.

This would be offered, this prior misconduct, actually the admission by the defendant would be offered to prove several things.

His intent, that is his intent to scare these two individuals he pointed the gun at, and the incident offense, of course, the intent to scare is one of the elements we have to prove.

And what he does with his gun and his indiscriminate use of his gun proves his modus operandi, if you will. It proves his intent. It
proves his motive to commit the offenses, excuse me, the offense charged.

Report of Proceedings (RP) at 3-4.

The trial court admitted the testimony, ruling the statements were not hearsay and reasoning under ER 404(b): Alright. Well, I think it's admissible not {to} show action and conformity therewith.

There is some danger of unfair prejudice in that regard but intent is an element of the crime and intent to intimidate this individual that he allegedly used the gun to communicate with, so to speak, in this instance would be an issue that the State would want to try to prove.

Likewise, motive for why it is that he wanted to pull the gun with the intent to intimidate or show his power over the situation. And a modus
operandi type effect would be, I think, another reason why it would be admissible. Now is it more prejudicial than it is probative? Well, first of all it's highly probative. I think it's also quite a bit prejudicial as well but I don't think the prejudicial effect is unfair prejudice to the defendant but instead the probative effect is quite high and it would outweigh the prejudicial effect. So under 404(b) it would be admissible to show intent to intimidate. It would be admissible to show motive. It would be admissible to show modus operandi and the defendant will be entitled to a limiting instruction saying it's not to show action and
conformity therewith.

RP at 5.

At trial, Jason Pitt testified his friend Mr. Naccarato won $40 from Mr. Bradley while playing pool. Mr. Bradley offered to get the cash from a nearby ATM. Mr. Pitt, with Mr. Naccarato as his passenger, drove separately to meet Mr. Bradley at the ATM. After Mr. Bradley returned from the ATM, he approached Mr. Pitt's car on the passenger side and gave the money to Mr. Naccarato.

Then, according to Mr. Pitt, Mr. Bradley pointed a handgun at Mr. Naccarato for 10 to 15 seconds from a distance of 3 or 4 feet.

And, Mr. Bradley said something to the effect, 'You don't know me. You don't know who you're dealing with' or 'you don't know who I am.' RP at 42. Mr. Pitt and Mr. Naccarato offered to return the money, but Mr. Bradley let them keep it.

Mr. Naccarato's testimony was consistent with Mr. Pitt's on the key points. Mr. Naccarato said Mr. Bradley pointed the gun at his chest. Mr. Naccarato testified he became scared and Mr. Pitt sped away after Mr. Bradley turned the gun away from them. He and Mr. Pitt immediately reported the incident to a nearby police officer.

Chewelah Police Officer Jody Spurgeon testified Mr. Pitt and Mr. Naccarato appeared 'quite shook up' when reporting the incident. RP at 16. Officer Spurgeon soon stopped Mr. Bradley's vehicle and arrested him.

After seeing Mr. Bradley move as though hiding something under the seat, Officer Spurgeon looked through the open door of Mr. Bradley's car and saw the butt of a handgun protruding from under the driver's seat. The gun was introduced into evidence at trial.

Ms. Orren, a bartender, testified she knew Mr. Bradley. Over Mr. Bradley's hearsay objection, Ms. Orren related Mr. Bradley told her about his gun, 'He enjoyed later at night, after the bars closed, if the younger kids {were} out walking along the streets or whatever, he liked to show it to them and scare them a little bit.'

RP at 71. According to Ms. Orren, Mr.Bradley characterized such younger people
as 'ignorant.' RP at 71.

Ms. Orren further stated Mr. Bradley told her he would wave the gun at people 'Just outside of his car window.' RP at 72.

Without objection, Ms. Orren further testified about Mr. Bradley: He was in there drinking one night and it was coming up on 2:00 bar time.
Our clocks are 15 minutes fast. And he was drinking a glass of white wine and I went around and told everybody that I had to pull their drinks and I was closing the bar. And I finally - he likes to pull it away and joke around and I finally got it from him and he said that if he had brought that gun that night, I would have thought twice about taking his wine.

Ms. Orren said she did not take the gun comment as a joke. Mr. Bradley testified he had a weapons permit and normally kept the gun in his car.

Mr. Bradley said he put the gun in his belt behind his belt buckle and under his shirttail after leaving the bar.

When the gun was accidentally noticed and commented on, Mr. Bradley said he
simply told the two men,

'I've packed a pistol for 30 years and I've got a permit to carry it.' RP at 91.
Mr. Bradley related he then merely pulled up his
shirt to show the gun, but did not pull out the gun at all.


Mr. Bradley admitted that displaying a gun could scare someone. He admitted teasing Ms. Orren about taking his drink at closing, but denied
making the specific statements attributed to him by her regarding a gun. And, regarding Mr. Pitt's flight from the scene, Mr. Bradley conceded the
rapid departure, saying Mr. Pitt 'for some reason, he just stomped on the
gas and out of the parking lot they went.' RP at 99.

Further, Mr. Bradley admitted putting the gun under the driver's seat of the car when Officer Spurgeon stopped him, indicating: 'I don't like to advertise no more than I have to, and I had no idea why he was stopping me at the time, so . . . .' The State then asked: '

You had advertised this weapon to the two young men earlier in the evening, hadn't you?'

Mr. Bradley answered: 'Yes I had.' At this
point, Mr. Bradley speculated:

'I don't try to advertise it to anyone. It
was just a fluke, I guess, that my shirt had came up over the handle of it and they happened to see it in my belt. Otherwise, they'd never known I
had one.' RP at 100. In further cross-examination, Mr. Bradley admitted he did not know whether his shirt was up when he approached the two men or whether the gun became exposed when he bent over to talk to them.

The trial court gave the following instruction regarding the ER 404(b) testimony:
Evidence has been introduced in this case on the subject of the defendant's alleged use or threatened use of a firearm on previous occasions. This evidence may not be considered as proof that the defendant acted in conformity with the alleged previous instances.

Instead, it may be considered only for the limited purpose of showing the defendant's intent or motive on the occasion of October 2, 2000.


At closing, without objection, the State argued:

We have from the testimony of Mr. Naccarato and from Mr. Pitt and from the bartender, that this defendant carries a gun, waves a gun, with the intent to scare younger people, ignorant people. And he makes reference to the bartender about well you took my drink away, it's a good thing I don't have a gun.


The State additionally argued: 'You know that he intended to scare them. And you know from the bartender that that's what he likes to do.
That's what his intentions are.' And with regard to the intent instruction, the State argued, 'Now, we know that the defendant talks about bragging - brags about going out and scaring people with his gun and we can
tell.'

After Mr. Bradley's attorney attacked Ms. Orren's testimony in her response argument as contradictory and having 'bloomed' into 'bragg{ing} about waving his gun at people,' RP at 118, the State argued in rebuttal:
Why would a bartender come up with something for no reason? Why would that lady, who you can tell was probably still frightened? She thought the joke about the wine was a joke, the talk about I want my wine back, that was a joke, but she didn't like the gun talk. She didn't think that was a joke. She thought the gun talk was something she ought to take seriously and she
didn't like it.

Finally, the State argued, 'You have evidence that he likes to scare people with guns and he did it to two young men on the late evening,
early morning of October 1st and 2nd.' RP at 125.

The jury returned a guilty verdict. Mr. Bradley appealed. ANALYSIS The sole error alleged on appeal is whether the trial court erred 'in
denying {Mr. Bradley's} motion in liminie to exclude evidence of prior bad acts.' Appellant's Br. at 1. At the trial court, however, Mr. Bradley's motion was based upon hearsay, not bad acts. The trial court properly treated Mr. Bradley's alleged remarks as admissions, ER 802(d)(2)(i), then in caution invited and applied an ER 404(b) analysis.
We will not disturb the trial court's evidentiary decisions absent an abuse of discretion. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). A trial court

abuses its discretion when its evidentiary ruling is manifestly unreasonable or based upon untenable grounds or reasons. Id.
ER 404(b) states:
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.

'Admissibility of evidence under ER 404(b) requires a three-part analysis.' State v. Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001).
'The court must identify the purpose for which the evidence will be admitted; the evidence must be materially relevant to that purpose; and the
court must balance the probative value of the evidence against any unfair prejudicial effect the evidence may have upon the fact-finder.' Freeburg, 105 Wn. App. at 497 (citing State v. Saltarelli, 98 Wn.2d 358, 362-66, 655
P.2d 697 (1982)).

The State must establish the existence of the prior act and the defendant's
connection with that act by a preponderance of the evidence. State v.
Norlin, 134 Wn.2d 570, 577-78, 951 P.2d 1131 (1998). We will affirm the
trial court's ruling that a prior act had occurred if it is supported by
substantial evidence in the record. State v. Roth, 75 Wn. App. 808, 816,
881 P.2d 268 (1994). On this point, the offer of proof clearly provides substantial evidence and was the sole evidence provided.

Mr. Bradley and the State agree the trial court did not specifically find by a preponderance of the evidence that the prior acts allegedly asserted by Mr. Bradley in his purported admissions to Ms. Orren had occurred.
However, because the trial court treated Mr. Bradley's alleged comments to Ms. Orren as admissions, the trial court left to the jury the question of whether the admissions were in fact made to Ms. Orren. At trial, Mr. Bradley did deny making the critical comments.

Mr. Bradley did not contest the existence of the proffered acts at the pretrial hearing, nor did he seek an evidentiary hearing. State v.
Barragan, 102 Wn. App. 754, 760, 9 P.3d 942 (2000). Ms. Orren's testimony constituted substantial evidence as to Mr. Bradley's statements to her.
State v. Binkin, 79 Wn. App. 284, 290, 902 P.2d 673 (1995). And, Mr. Bradley's admission through Ms. Orren's testimony constitutes substantial
evidence that he displayed his gun to others. See ER 802(d)(2)(i)
(admission by party opponent in individual capacity). Any error in not holding an evidentiary hearing was waived.
At the hearing, the trial court invited an ER 404(b) analysis even though Mr. Bradley's counsel objected on hearsay grounds alone. Even after the
trial court's invitation to address ER 404(b), Mr. Bradley's trial counsel argued the matters were hearsay, and then that the proffered evidence would 'show action and conformity therewith.' RP at 5. As indicated in the
quoted ruling, the trial court disagreed with the last point. The trial court reasoned, although some danger of unfair prejudice existed, the
admissions bore on intent, modus operandi, and motive, thus implicating the absence of mistake or accident as was later asserted by Mr. Bradley.
After the ER 404(b) ruling, when pressed again on Mr. Bradley's hearsay objection, the trial court summarized the situation by observing if Ms.
Orren did not appear at trial, the State would not be able to use her statement because it would then be hearsay. On the other hand, if Ms.
Orren appeared at trial, the court would treat her testimony about what Mr. Bradley said as an admission. Thus, Mr. Bradley actually received a
favorable ruling on his major objection at the time. The trial court correctly differentiated between the hearsay quality of the proposed
evidence and its admissibility under ER 404(b).
Although the trial court weighed the probative value of the evidence against its unfair prejudicial effect, Mr. Bradley challenges the purpose and relevance prongs. 'When the State offers evidence of prior acts to demonstrate intent, there must be a logical theory, other than propensity, demonstrating how the prior acts connect to the intent required to commit
the charged offense.' State v. Wade, 98 Wn. App. 328, 334, 989 P.2d 576 (1999). 'Use of prior acts to prove intent is generally based on
propensity when the only commonality between the prior acts and the charged act is the defendant.' Id. at 335. 'To use prior acts for a non- propensity based theory, there must be some similarity among the facts of the acts themselves.' Id. Stated another way, the facts of the prior act ''must have some additional relevancy beyond mere propensity.'' Id. at 336
(quoting State v. Holmes, 43 Wn. App. 397, 400-01, 717 P.2d 766 (1986)).
As the Wade court further reasoned:
This additional relevancy turns on the facts of the prior acts themselves and not upon the fact that the same person committed each of the acts.
Otherwise, the only relevance between the prior acts and the current act is the inference that once a criminal always a criminal. It is the facts of the prior acts, and not the propensity of the actor, that establish the permissive inference admissible under ER 404(b).

Wade, 98 Wn. App. at 336.
Further, '{t}he test for logical relevance is whether the evidence is necessary to prove an essential element of the crime charged.' State v.
Hernandez, 99 Wn. App. 312, 322, 997 P.2d 923 (1999) (citing State v.
Robtoy, 98 Wn.2d 30, 42, 653 P.2d 284 (1982)). In this connection, evidence of prior misconduct is generally admissible when the defendant
admits doing the act, but claims he or she lacked the requisite state of mind to commit the charged offense. Hernandez, 99 Wn. App. at 322.
Here, the State charged Mr. Bradley with second degree assault by use of a firearm. RCW 9A.36.021(c). Generally, a person commits second degree
assault when, within shooting distance, he or she points a loaded firearm at another person. State v. Johnson, 29 Wn. App. 807, 816, 631 P.2d 413
(1981). A person also commits second degree assault when he or she attempts to cause fear and apprehension of bodily injury by unlawful force,
regardless of the defendant's intent or ability to inflict injury. State v. Byrd, 125 Wn.2d 707, 712-13, 887 P.2d 396 (1995).

'Assault by attempt to cause fear and apprehension of injury requires specific intent to create reasonable fear and apprehension of bodily injury.' State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996) (citing Byrd, 125 Wn.2d at 713). 'A jury may infer specific intent to create fear from the defendant's pointing a gun at the victim, unless the victim knew the weapon was unloaded, but not from mere display.' Eastmond, 129 Wn.2d at 500 (citing State v. Miller, 71 Wn.2d 143, 146, 426 P.2d 986
(1967); State v. Karp, 69 Wn. App. 369, 374-75, 848 P.2d 1304 (1993); State
v. Murphy, 7 Wn. App. 505, 511, 500 P.2d 1276 (1972)).
Mr. Bradley's boast about waving a gun around and his 'joking' about being potentially armed to Ms. Orren becomes relevant to the intent issue under
the circumstances here. Mr. Bradley admitted his gun was seen by the victim and asserted its display was mistaken or accidental, just a 'fluke.'

RP at 100. Thus, his past boasting about his gun displaying becomes relevant for the limited purpose resolving the competing inferences that
may be drawn from our facts: Intentional display as suggested by the State, versus accidental display as suggested by Mr. Bradley. Motive, intent, or absence of mistake or accident are listed exceptions in ER 404(b).
Further, Ms. Orren testified that Mr. Bradley told her that he liked to 'show' his gun to 'younger kids' to 'scare them a little bit.' RP at 71.

Mere display of a firearm is not probative of specific intent to cause fear and apprehension of bodily injury; the defendant must point the gun at
someone. Eastmond, 129 Wn.2d at 500; Johnson, 29 Wn. App. at 816. Here, the evidence conflicted regarding whether Mr. Bradley pointed his gun at
Mr. Naccarato, a question resolved by the jury. The critical issue was whether Mr. Bradley intended to scare Mr. Naccarato by doing so, another issue for the jury to decide. The challenged evidence properly bears upon
this last point.

While modus operandi was mentioned in the trial court's written order, it instructed the jury consistently with its oral ruling not to consider
the evidence of Mr. Bradley's past 'alleged use or threatened use of a fire arm on previous occasions{}' as 'proof' that {he} acted in conformity with the alleged previous instances. Instead, it may be considered only for the
limited purpose of showing {Mr. Bradley's} intent or motive on the occasion of October 2, 2000.' CP at 25. Moreover, a trial court's error in admitting ER 404(b) evidence is not of
constitutional magnitude. State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986). A nonconstitutional ''error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the
trial would have been materially affected.'' Smith, 106 Wn.2d at 780 (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)).
Regarding Mr. Bradley's arguments about the State's closing remarks about Ms. Orren's testimony, the trial court admonished the jury that closing argument was not evidence. We presume the jury followed its instructions.
State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135 (1994). Here, applying the harmless error analysis, we conclude no probability exists the jury would have arrived at a different result absent the testimony. Smith, 106 Wn.2d at 780.
Mr. Pitt and Mr. Naccarato testified consistently and unequivocally as to the assault. Both men went immediately to Officer Spurgeon, who testified the victims were 'quite shook up' when reporting the assault. RP at 16. Mr. Bradley admitted being armed when he handed the money over to Mr. Naccarato. He admitted displaying the firearm. He admitted Mr. Pitt 'stomped on the gas' and sped off after the encounter. RP at 99. And Mr. Bradley admitted shoving the gun under his seat when stopped by the officer. Given that Mr. Bradley possessed a concealed weapons permit, the act of placing the gun under the seat when confronted by an officer soon
after the assault raises a reasonable inference of guilty knowledge.

Further, Mr. Bradley was a remarkably poor witness in his own behalf; his explanations as to why he felt it necessary to arm himself before handing over the money, his version of the encounter with the victims, and his explanation about shoving the handgun under the driver's seat after being stopped by the arresting officer did not help him offset the State's evidence.
In sum, we find no trial court error, and even assuming error, it was harmless.
Affirmed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for
public record pursuant to RCW 2.06.040.

Brown, A.C.J.

WE CONCUR:

Sweeney, J.

Kato, J.