Argued, May 13, 2014
Reconsideration denied January 13, 2015.
Appeal from King County Superior Court 10-1-09270-2 Honorable Kimberley Prochnau.
Gregory C. Link (of Washington Appellate Project ), for petitioner.
Daniel T. Satterburg, Prosecuting Attorney, and Susan I. Harrison and James M. Whisman, Deputies, for respondent.
AUTHOR: Justice Steven C. González. WE CONCUR: Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Sheryl Gordon McCloud, Joel M. Penoyar, Justice Pro Tem. AUTHOR: Chief Justice Barbara A. Madsen.
Steven C. González,
[181 Wn.2d 918] [¶1] The State charged Daniel Scott Gunderson with domestic violence felony violation of a court order for a September 2010 altercation between himself and Christina Moore, his ex-girlfriend. At trial, Ms. Moore testified that no assault occurred. Although she had not made any prior statement about the incident, let alone an inconsistent statement, the State sought to introduce evidence of Gunderson's prior domestic violence against her to impeach her. The trial judge admitted this evidence over [181 Wn.2d 919] Gunderson's ER 404(b) objection. Gunderson argues that the trial court should have excluded evidence of his prior bad acts under ER 404(b). We agree and reverse.
[¶2] Gunderson and Christina Moore dated for about seven years and have a daughter together. In September 2010, Christina and her daughter were living in Seattle with Bonnie Moore, Christina's mother.  At that time, Gunderson was living in Longview, Washington. On September 15, 2010, Gunderson
drove up to Seattle to pick up his daughter and take her back to Longview for a visit. A no contact order prevented Gunderson and Christina from communicating, so arrangements regarding the visit were made by Bonnie and Gunderson. That night, Gunderson stayed at Bonnie's house, planning to leave with his daughter the following morning.
[¶3] As Gunderson left the next morning, Bonnie, Christina, and Gunderson had an altercation and Bonnie called the police. By the time officers arrived, Gunderson, Christina, and their daughter had driven away in Gunderson's truck. Bonnie told the responding officers that Gunderson had hit her and Christina. Gunderson was charged with domestic violence felony violation of a court order under RCW 26.50.110(1) and (4).
[¶4] At trial, the State presented a recording of the 911 call, Bonnie's police statement, Bonnie's testimony, and Christina's testimony, among other things. Bonnie testified that they had scuffled in the parking lot as Gunderson tried to leave with his daughter. She recalled Christina, Gunderson, and herself grabbing and wrestling in and around Gunderson's truck. According to Bonnie, she did not want the truck to leave and was struggling to take the keys. At some point in the commotion, Gunderson was sitting in [181 Wn.2d 920] the driver's seat, ducking from Bonnie. On cross-examination, Bonnie told the court that she did not see Gunderson hitting Christina and that her memory was " kind of a big blur." Transcript of Proceedings (TP) (Oct. 20, 2011) at 37. On redirect, she testified that Gunderson was " [p]robably defending himself." Id. at 44. Bonnie said she called the police because she was concerned about Christina being in the truck with Gunderson.
[¶5] Though neither the 911 tape nor its transcript are part of the record before us, it was played for the jury during Bonnie's testimony. Based on the State's characterization of the tape in its closing argument, it appears that Bonnie was panicked during the 911 call and told the operator that Gunderson had hit Christina.
[¶6] During the direct examination of one of the responding officers, the State introduced the statement that he took from Bonnie shortly after she had called the police. In it, Bonnie told the officer that Gunderson had hit her with a closed fist, kicked her, and also hit Christina. Bonnie also told the officer that as the truck was pulling away, she saw Gunderson hitting Christina. The defense did not object to the officer reading the statement to the jury.
[¶7] Christina's testimony painted a contrasting picture. Christina testified that when she came outside, she saw Gunderson and Bonnie " arguing about where he was going and when he was going to bring [the daughter] back." TP (Oct. 24, 2011) at 68. According to Christina, the episode did not involve physical violence. She testified that Gunderson did not hit her or Bonnie. She also told the court ...