State v. Foxhoven

163 P.3d 786 (2006)

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Nature of the Case

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Facts

Graffiti was etched with acid into the windows of a number of businesses. The graffiti consisted of three different tags: “HYMN,” “GRAVE,” and “SERIES.” Police determined that Sanderson (D) is associated with the tag “HYMN” and Foxhoven (D) with the tag “SERIES.” Ds, and a third person who was associated with the tag “GRAVE” were each charged with several counts of malicious mischief. Ds proceeded to a joint trial before a jury. Ds moved to exclude any evidence of prior bad acts under ER 404(b). Foxhoven (D) specifically objected to the admission of (1) his criminal history of graffiti from California and (2) photographs seized from Foxhoven's (D) home that depicted graffiti involving the “SERIES” tag. Sanderson (D) objected to the admission of (1) his prior arrests for graffiti, (2) drawings of the “HYMN” tag seized from his home, (3) photos of him painting the “HYMN” tag, and (4) photos of graffiti involving the “HYMN” tag that were seized from his home. The motions were denied. The court held that “the “probative value” of evidence tending to show that each defendant is committed to a culture that explicitly encourages vandalism and that each defendant marks his crime with his unique signature is extremely high. In fact, such evidence is “necessary” for a fair determination of these cases. They are intimately related to the alleged motive for this crime (notoriety) and are not emotionally inflammatory. The probative value is not outweighed by the danger of unfair prejudice. The evidence was admitted at trial. The court issued a limiting instruction: This is being offered by the prosecution for the limited purposes of either modus operandi or common scheme plan or design. You're not to consider the evidence for any other purpose. Ds were convicted. The court of appeals affirmed. “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.” Ds appealed and were granted review on Rule 404(b).