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State v. Norby

February 24, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
LEE KASPER NORBY, APPELLANT.



Appeal from Superior Court of Whatcom County. Docket No: 95-1-00541-4. Date filed: 10/10/95. Judge signing: Hon. David S. Nichols.

PER CURIAM -- We affirm Lee Norby's conviction of felony harassment, holding that the trial court properly admitted evidence of Norby's prior bad acts against the victim because the reasonableness of the victim's fear is an essential element of the crime. We also hold that the record as a whole indicates that the trial court weighed the prejudice of the challenged evidence against its probative value in deciding to admit the evidence.

I

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. *fn1 Such evidence, however, may be admissible for other purposes. *fn2 Before admitting ER 404(b) evidence, the trial court must determine that the evidence meets two distinct criteria: (1) the evidence must be logically relevant and necessary to prove an essential element of the crime charged, and (2) the probative value of the evidence must outweigh its prejudicial effect. *fn3 The decision to admit evidence of the defendant's prior acts will not be reversed absent an abuse of the court's discretion. *fn4

II

Before his bench trial, Norby made a motion to exclude all ER 404(b) evidence. The trial Judge denied the motion and admitted evidence of a stormy relationship between Norby and the victim, including the victim's testimony that Norby became violent and abusive toward her when he drank. Additional evidence of Norby's harassing behavior included the following:

(1) entering the victim's home when she was away and leaving menacing notes, (2) harassing phone calls, including a simulated suicide attempt, (3) jealous threats regarding the victim seeing other men, (4) prior protective orders obtained by the victim, and (5) Norby's arrest and subsequent release following the victim's report of telephone harassment.

Norby claims that evidence of these prior bad acts against the victim is irrelevant and therefore inadmissible. He argues that because his defense is general denial, the reasonableness of the victim's fear is not a contested issue. Therefore, he argues, prior misconduct evidence should have been excluded as irrelevant.

Norby was convicted of felony harassment pursuant to RCW 9A.46.020(2)(b). The reasonableness of the victim's fear is an essential element of the crime of felony harassment. *fn5 Evidence of prior bad acts involving abuse against the victim is highly probative of this element. A victim's perception of what steps might be taken against her is directly related to the prior behavior of the threatener. *fn6 Contrary to what Norby argues, his general denial does not remove reasonableness of the victim's fear from the elements of felony harassment that the State must prove beyond a reasonable doubt. *fn7 We hold that the prior bad acts evidence was both logically relevant and necessary to prove an essential element of the crime charged. The evidence was thus properly admitted.

III

The court's balancing of the prejudicial nature of ER 404(b) evidence must take place on the record. *fn8 But if the record as a whole shows that the trial court weighed the prejudice of the challenged evidence against its probative value in its decision to admit the evidence, the trial court need not explicitly articulate a balancing test. *fn9 Norby argues that the trial court failed to weigh the probative value of Norby's prior bad acts against its prejudicial nature, and failed to create a record of this required balancing. We disagree.

The trial Judge stated his reason on the record for admitting the evidence over Norby's objection: the evidence is relevant to an element of the crime. Furthermore, the record indicates that the Judge weighed the consequences of admission and made a conscious determination to admit the evidence. *fn10 The Judge assured defense counsel: "If the court finds Mr. Norby guilty of this charge it won't be because he's done some other bad things. It will be because it was reasonable for the victim to understand that he was serious when he did this." RP 16. We hold that the trial court adequately engaged in the required on-the-record balancing.

Norby's argument that the trial Judge improperly allowed the prejudicial effect of the challenged evidence to influence the result of the trial is without merit. In a bench trial, "the danger of prejudice is reduced because a trial Judge, due to his or her experience and training, is in a better position than jurors to identify and focus on the probative quality of evidence . . . and to disregard the prejudicial aspects" of challenged testimony. *fn11 There was no abuse of discretion, "particularly because this was a bench trial in which the court is presumed to give evidence its proper weight." *fn12 Finding no evidentiary error, we uphold Norby's conviction of felony harassment.

Affirme ...


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