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State v. Foxhoven, 161 Wash.2d 168, 163 P.3d 786

Facts

In October 2001, graffiti was etched into the windows of several businesses in Bellingham, Washington, using three different tags: 'HYMN,' 'GRAVE,' and 'SERIES.' Foxhoven and Sanderson were charged with malicious mischief after police linked them to the tags. Prior to their trial, both defendants sought to exclude evidence of their previous graffiti acts, which the trial court admitted to establish a common scheme or modus operandi.

In October 2001, graffiti was etched with acid into the windows of a number of businesses in downtown Bellingham. The graffiti consisted of three different tags: 'HYMN,' 'GRAVE,' and 'SERIES.' Investigating officers determined that petitioner Sanderson is associated with the tag 'HYMN' and petitioner Foxhoven with the tag 'SERIES.'

Issue

Whether the trial court erred in admitting evidence of the defendants' prior acts of graffiti under ER 404(b).

Petitioners are challenging the third requirement: relevance.

Rule

ER 404(b) prohibits the admission of evidence of other crimes or bad acts to prove character, but allows such evidence for purposes like proving motive, plan, or identity.

ER 404(b) prohibits a court from admitting '[e]vidence of other crimes, wrongs, or acts … to prove the character of a person in order to show action in conformity therewith.'

Analysis

The court determined that the evidence of prior graffiti acts was admissible to establish the defendants' modus operandi, as the tags they used were distinctive and served as their identities within the graffiti subculture. The court found that the similarities between the prior acts and the current charges were sufficient to support the admission of the evidence.

Given this evidence, we agree with the Court of Appeals that the trial court did not abuse its discretion in admitting the challenged ER 404(b) evidence.

Conclusion

The Supreme Court affirmed the Court of Appeals' decision, holding that the trial court did not abuse its discretion in admitting the evidence under the modus operandi exception to ER 404(b).

Accordingly, we affirm the Court of Appeals' decision upholding petitioners' convictions.

Who won?

The State prevailed in the case, as the court upheld the admission of evidence that established the defendants' identities through their unique tags.

The trial court did not err by admitting the evidence that Foxhoven and Sanderson engaged in prior acts of graffiti under the modus operandi exception to ER 404(b) because the tags were signature-like and both defendants admitted they had used the same tags before.

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