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State v. Brennan

May 12, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
CLINT J. BRENNAN, APPELLANT.



Appeal from Superior Court of Whatcom County. Docket No: 95-1-00687-9. Date filed: 12/06/95. Judge signing: Hon. David S. Nichols.

PER CURIAM. Seventeen-year-old G. M. was severely beaten by several individuals at a party on September 2, 1994. Charges were later filed against Clint Brennan after G.M. told police that Brennan participated in the assault. Brennan and G.M. thereafter encountered one another in downtown Bellingham and a heated conversation ensued. Following this confrontation, Brennan was charged with one count of felony harassment. He was found guilty as charged. Brennan appeals, alleging that the trial court erred in admitting evidence that G.M. had previously been assaulted and that Brennan had been arrested for assaulting G.M. Brennan also contends that the evidence presented below was insufficient to convict him of felony harassment. We conclude that Brennan's ER 404(b) argument was not preserved for purposes of appellate review and that testimony about the assault and Brennan's subsequent arrest was more probative than prejudicial and thus properly admitted into evidence. We also conclude that sufficient evidence was presented to convict Brennan of the offense charged. Accordingly, we affirm.

FACTS

On November 1, 1994, G.M. and several of his friends were skateboarding in downtown Bellingham when they happened to see Brennan and Karen Morrisette. After a heated conversation between Brennan and G.M., everyone went their separate ways. Brennan was later charged with one count of felony harassment stemming from this incident.

At the jury trial, Brennan moved in limine to exclude any mention of an alleged prior assault of G.M. by Brennan and others on the ground that the testimony would be "overly prejudicial". Brennan argued that, because he was arrested for assaulting G.M. on September 2, 1994, the jury was likely to believe that he was guilty of that crime. *fn1 Although the court denied Brennan's motion in limine, it did orally instruct the jury as follows:

Ladies and gentlemen, through [G.M.] their [sic] may be testimony of a prior assault matter already referred to in opening. You are now instructed that you may consider such testimony only for the purpose of determining whether [G.M.] had a reasonable fear that a threat to kill him would be carried out. You must not consider the evidence for any other purpose.

G.M. testified that he and several friends were at The Bagelry in downtown Bellingham on November 1, 1994, when Brennan approached him and called him a "snitch and a mark." G.M. testified that Brennan was referring to the fact he was arrested for assaulting G.M. According to G.M., Brennan was screaming at him and making threatening remarks. G.M. testified that Brennan told him he was dead where he was standing, that the number "187" should be written on his forehead, and that Brennan was going to kill him. G.M. believed Brennan would carry out his threats and assumed that Brennan was referring to the television show "Cops", where the number "187" means a murder victim. G.M. testified he also heard from a number of other people that Brennan was planning to kill him. G.M. testified he did not even know Brennan when Brennan beat him up at a party on September 2. G.M. testified he never received any threats before he was assaulted at the party on September 2. The State also called other witnesses who described the way in which Brennan threatened G.M. on November 1, and the degree to which G.M. was frightened by the threats.

The defense called Karen Morrisette who testified she was with Brennan when he met up with G.M. and approximately ten of G.M.'s friends on November 2, 1994. She testified that G.M. approached them and accused Brennan of beating him up, and that Brennan replied that he wasn't there and didn't do it. Ms. Morrisette stated that G.M. and Brennan entered into a heated conversation and that they ended up swearing at each other. But she claimed that Brennan never threatened G.M.

The jury found Brennan guilty as charged. This appeal followed.

ANALYSIS

Brennan first contends that the trial court erred in admitting evidence about the prior assault and his subsequent arrest. He argues that this evidence was inadmissible under ER 404(b) and ER 403. However, there is nothing in the record before this court to indicate that Brennan ever objected at trial to the admission of the evidence under ER 404(b). Rather, defense counsel at trial argued "that any evidence of the assault should be excluded from this case as overly prejudicial to Mr. Brennan." *fn2 This evidentiary objection was insufficient to preserve appellate review based on ER 404(b). *fn3 Although Brennan's counsel failed to cite a specific rule of evidence as a basis for excluding the evidence, her objection that the evidence is overly prejudicial does invoke ER 403. *fn4 Thus, we shall address the issue of whether, under ER 403, the probative value of the evidence outweighs its prejudicial effect.

Under ER 403, courts may exclude relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The trial court has broad discretion in balancing the probative value of evidence against its potential prejudicial impact. *fn5 Brennan contends that "the testimony regarding the alleged prior assault should have been excluded because any probative value was substantially outweighed by the danger of unfair prejudice." He argues that because the charge against him for assaulting G.M. was dismissed, the probative value of any evidence concerning the assault was minimal and did not outweigh its potentially prejudicial effect on him. We disagree. Here, evidence that G.M. accused Brennan of assaulting him is obviously relevant to establishing Brennan's motive for harassing G.M. *fn6 Regardless of whether Brennan actually assaulted G.M. on September 2, the fact the assault occurred at all is an important link in the chain of evidence showing Brennan's motive for harassing G.M. It is undisputed G.M. was not threatened until after he was assaulted. Finally, evidence concerning the prior assault is highly probative of an essential element of the charged offense, namely, the reasonableness of G.M.'s fear. *fn7 While this type of evidence is inherently prejudicial, *fn8 the jury in this case was instructed as to the limited basis for which the evidence was admitted. The jury is presumed to follow that limiting instruction. *fn9 Under the circumstances, the trial court did not abuse its discretion in admitting the evidence. *fn10 Brennan next challenges the sufficiency of the evidence to convict him of felony harassment. The test is "whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." *fn11 In applying the test, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." *fn12 Brennan argues that the State failed to present sufficient evidence to show that G.M.'s fear was reasonable. However, the record belies that claim. G.M. testified that Brennan threatened to kill him. Brennan was angry and hostile when he made those threats. Other people told G.M. that Brennan was planning to kill him. Given the nature of the threats and the overall pattern of threatening conduct, it was reasonable for G.M. to fear that Brennan would kill him.

Brennan also argues that no evidence was presented in this case to show that he threatened to kill G. M. "in the future." In City of Seattle v. Allen, 80 Wash. App. 824, 831, 911 P.2d 1354 (1996), this court recently interpreted the term "in the future" as used in the harassment statutes:

Because every threat, by necessity, refers to an act sometime in the future, to prove harassment the prosecution is required to produce evidence that the threat is one to cause injury at a different time or place than the time and place where the defendant makes the threat.

Without such requirement, there is nothing to distinguish the crimes of harassment and assault and the phrase "in ...


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