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### 2013JUN /7 AH 9= 1*2

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. MARIO GARCIA-BONILLA, Appellant. No. 68207-5-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: June 17. 2013 Spearman, J. - Mario Garcia-Bonilla challenges his convictions for first degree 

### burglary, firstdegree assault, second degree assault (domestic violence) and violation of a no-contact order (domestic violence). He argues that the trial court erred when it admitted evidence ofGarcia-Bonilla's prioracts of violence against one of the victims. Because Garcia-Bonilladoes notdispute thatthe evidence was properly admitted to establish a motive for the crimes, we affirm his convictions. FACTS 

### Garcia-Bonilla was involved in a romantic relationship with Mayra Ramirez-Diaz 

### between approximately 2000 and 2006. After Ramirez-Diaz ended the relationship, Garcia-Bonillamade several attempts to reconcile with her. OnAugust 27, 2006, Garcia-Bonilla came to Ramirez-Diaz's apartment asking to speakwith her; when she told him to leave, he kicked and broke herdoor. Neighbors heard the commotion and called 911 but Garcia-Bonilla had leftthe scene by the time law enforcement arrived. 

### Ramirez-Diaz was afraid and went to stay with her motherthat night. The following day, 

### when Ramirez-Diazentered her apartment, she found Garcia-Bonillaasleep on herNo. 68207-5-1/2 floor. Garcia-Bonilla pled guilty to first degree criminal trespass (domestic violence) and third degree theft (domestic violence). The sentencing court issued an order prohibiting Garcia-Bonilla from contacting Ramirez-Diaz until October6, 2008. On October4, 2007, Garcia-Bonilla came to Ramirez-Diaz's apartment, knocked
on the door and windows, and attempted to persuade Ramirez-Diaz to come back to 

### him. He did the same thing on October 5, 2007, and Ramirez-Diaz called 911. When law enforcement arrived, they were unable to locate Garcia-Bonilla. On October 13, 2007, Garcia-Bonilla entered Ramirez-Diaz's apartment while 

### Ramirez-Diaz was there with a new boyfriend. Ramirez-Diaz's boyfriend locked himself in the bathroom and called 911. Garcia-Bonilla had left the scene when law enforcement arrived. 

### OnApril 5, 2008, Ramirez-Diaz took her mother to a doctor's appointment. When she returned to her apartment, Garcia-Bonilla was there. Garcia-Bonillademanded to know where Ramirez-Diaz had been, accused herofbeing with another man, and 

### grabbed her by herhair. Ramirez-Diazwas afraid Garcia-Bonilla would hitherbecause "[h]e always hit me." Report ofProceedings (RP) (8/31/11)at 31. Garcia-Bonilla later convinced Ramirez-Diaz not to call the police. 

### On May 1, 2008, Ramirez-Diaz and her seven-year-old son Ernesto were 

### passengers in a car beingdriven byJose Bardales-Munoz, afriend ofRamirez-Diaz's. When the car was stopped at a stop sign, Garcia-Bonilla approached, opened the car 

### door, and tried to grab Ernesto. Ramirez-Diaz freed her son from Garcia-Bonilla's grasp. Garcia-Bonilla continued to scream at Ramirez-Diaz and Bardales-Munoz as they droveNo. 68207-5-1/3
away. A protective orderwas entered prohibiting Garcia-Bonilla from contacting Ramirez-Diaz until June 2, 2013. Ramirez-Diaz suffers from an illness that has left her with brain lesions and a seizure disorder, and is dependent on multiple medications to survive. Inearly July 2008, Ramirez-Diaz began experiencing forgetfulness, headaches, nausea and dizziness. The nausea caused herto throw up her seizure medications for a few days, and when she was admitted to the hospital, her brain was showing frequent seizure activity. Doctors gave Ramirez-Diaz high dosages ofanti-convulsant medication to stop the seizures, butthe high dosage had the side effect ofcausing Ramirez-Diaz to experience hallucinations, paranoia and delirium. Once doctors adjusted the medications, Ramirez-Diaz's condition improved, and she was released from the hospital a few days later. 

### On August 3, 2008, Ramirez-Diaz hosted a barbecue at her apartment, attended 

### by her son Ernesto, her sister Hety, her brother-in-law Rosendo, her adult niece Carolina, and Bardales-Munoz. Around 11:00 p.m., Bardales-Munoz went to sleep in Ramirez-Diaz's bedroom. Ramirez-Diaz and her son wentto sleep nextto Bardales

### Munoz around 12:30 or 1:00 a.m. Hety and Rosendo went to sleep inanother bedroom. Carolina stayed awake using her computer at the dining room table. 

### Early in the morning, Carolina saw Garcia-Bonilla enterthe apartmentthrough a 

### sliding glass door that had a broken lock. She saw a knife in Garcia-Bonilla's hand and froze in fear. Garcia-Bonilla walked towards the bedrooms and Carolina heard a noise 

### "likeahh," at which point she screamed. RP (11/9/11) at 116-118.No. 68207-5-1/4 Bardales-Munoz felt something near his stomach and woke up. He kicked with 

### his foot, striking someone, and turned on the light. He realized he had been stabbed in the abdomen, and saw Garcia-Bonilla standing over him with a knife in his raised hand. 

### Ramirez-Diaz was awoken by a groan. When the lightcame on, she saw Garcia-Bonilla with a knife in his raised hand, making a movementtowards her. Garcia-Bonilla then fled the bedroom. 

### Hety woke up when she heard Carolina scream. She opened the bedroom door and saw Garcia-Bonilla walk down the hallway and exitthe apartmentthrough a sliding glass door. 

### The State charged Garcia-Bonilla with first degree burglary (CountI); first degree assaultforthe attack on Bardales-Munoz (Count II); second degree assault (domestic 

### violence) forthe attack on Ramirez-Diaz (Count III); andviolation of a no-contactorder (domestic violence) (Count IV). Counts I, II and III carried deadly weapon enhancements. Garcia-Bonilla filed a trial memorandum inwhich he outlined his theory ofthe


### case. He claimed that he was never inside the apartment and that Ramirez-Diaz 

### stabbed Bardales-Munoz herselfwhile suffering fromparanoia and delusions related to her illness. He further asserted that, because Ramirez-Diazwas not a legal resident of 

### the United States, she and herfamily had fabricated the allegations to prevent herfrom 

### being deported to hernative Guatemalawhere she would not be able toreceive crucial
medical treatment.No. 68207-5-1/5 Prior to trial, the State sought to admit evidence ofGarcia-Bonilla's prior acts of violence towards Ramirez-Diaz pursuant to ER 404(b): (1) the incident in which GarciaBonilla was discovered sleeping on herfloor on August 27-28, 2006; (2) the incident where Garcia-Bonilla knocked on her door and windows on October4-5 2007; (3) the incident in which Ramirez-Diaz's male friend locked himself in a bathroom on October 13, 2007; (4) the incidentwhere Garcia-Bonilla grabbed Ramirez-Diaz's hair on April 5, 2008; and (5) the incident where Garcia-Bonilla attempted to grab Ramirez-Diaz's son from the car on May 1, 2008. The State argued that the acts were admissible to: (1) show that Ramirez-Diaz had reasonable apprehension and imminentfear of bodily injuryduring the attack; (2) determine Garcia-Bonilla's motive behind the attacks; and (3) establish Ramirez-Diaz's credibility in light ofthe defense's theory ofthe case. The trial courtfound thatthe State had proven the incidents by a preponderance ofthe evidence. The trial court admitted the August 27-28, 2006, October4-5, 2007, 

### October 13, 2007 and April 5, 2008 incidents to help thejury assess Garcia-Bonilla's motive and Ramirez-Diaz's credibility. The trial court also admitted the August 27-28, 2006, October 13, 2007 and April 5, 2008 incidents to establish Ramirez-Diaz's 

### reasonable apprehension and fear. The May 1, 2008 incidentwas admitted only to 

### show that Bardales-Munozwas capable ofidentifying Garcia-Bonilla as the assailant but not for any other purpose. Thejury was instructed as follows: Evidence has been introduced in this case regarding allegations ofthe 

### defendant's past acts against Mayra Ramirez-Diaz beforeAugust4, 2008. This evidence has been introduced for the limited purpose ofassessing 

### the defendant's alleged motive and assessing Mayra Ramirez-Diaz's 

### credibility. Further, this evidence may be considered inevaluating MayraNo. 68207-5-1/6 Ramirez-Diaz's alleged fear and state of mind for Count III. You must not considerthis evidence for any other purpose. Clerk's Papers (CP) at 75. 

### Ajuryconvicted Garcia-Bonilla on all fourcounts1, returning deadly weapon special verdicts on Counts I, II and III. Garcia-Bonilla appeals. DECISION 

### We review a trialcourt's ruling on the admissibility ofevidence for an abuse of discretion. State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). A trial court 

### abuses its discretion if itacts on untenable grounds or for untenable reasons. Magers, 164 Wn.2d at 181. "Failure to adhere to the requirements ofan evidentiary rule can be considered an abuse of discretion." State v. Foxhoven, 161 Wn.2d 168,174, 163 P.3d 

### 786 (2007) (quoting State v. Neal, 144 Wn.2d 600, 609, 30 P.3d 1255 (2001)). 

### Under ER 404(b), a court isprohibited from admitting "[ejvidence of other crimes, 

### wrongs, or acts ... toprove the character of a personin order to showaction in conformitytherewith." But such evidence isadmissiblefor other purposes, "such as 

### proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Before admitting ER 404(b) evidence, a trial court must: 

### (1)find by a preponderance of the evidence that the misconduct occurred, (2) identifythe purpose for which the 

### evidence is sought to be introduced, (3) determine whether the evidence is relevantto prove an elementof the crime charged, 

### and (4) weigh the probative value against the prejudicial effect.

The Stateamended CountIVfrom afelony to a misdemeanorat the close ofthedefense case.

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### This analysis must be conducted on the record. Ifthe evidence is admitted, a limiting instruction must be given to thejury. Foxhoven, 161 Wn.2d at 175. Garcia-Bonilla argues the trial court erred when itadmitted the evidence of prior threatening acts to show Ramirez-Diaz's apprehension and fear of bodily harm orto establish her credibility. But Garcia-Bonilla does not dispute that the evidence was admissible to show his motive for the attacks. We will affirm the trial court's decision to admit evidence under ER 404(b) ifone ofthe court's cited bases isjustified. State v. 

### Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995).2 Because the evidence was properly admitted to establish motive, the trial court 

### did not err. "[Mjotivegoes beyond gain and can demonstrate an impulse, desire, or any 

### other moving powerwhich causes an individual to act." Powell, 126 Wn.2d at 259. Garcia-Bonilla had previously attempted to rekindle his relationship with Ramirez-Diaz. He had been violent with herwhen he believed she was seeing other men, and 

### threatening towards male companions in her company. The evidence was relevant to establish that Garcia-Bonilla's assault on Bardales-Munez and Ramirez-Diaz was motivated byjealousy. Moreover, even ifthe admission ofthe evidence had been in error, any such
errorwas harmless. The erroneous admission of prior bad acts evidence under ER 

### 404(b) "requires reversal onlyifthe error, within reasonable probability, materially

2Because the evidence was admitted for a permissible purpose, we need notaddress GarciaBonilla's claims that the trial court erred in admitting itfor the purposes of Ramirez-Diaz's reasonable apprehension or to establish her credibility.

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affected the outcome ofthe trial." State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 

### (1993) (quoting, State v. Tharp. 96 Wn.2d 591, 599, 637 P.2d 961 (1981)). Here, four 

### eyewitnesses saw Garcia-Bonilla inRamirez-Diaz's apartment: Hety, Carolina, Ramirez-Diaz and Bardales-Munoz. Carolina saw Garcia-Bonilla walk towards RamirezDiaz's bedroom with a knife in his hand, heard a noise, and saw Garcia-Bonilla flee the 

### apartmentthrough a slidingglass door. Ramirez-Diaz saw Garcia-Bonilla make a 

### threatening movementtowards her holding a knife. AndBardales-Munoz identified Garcia-Bonilla as the man who stabbed him. The overwhelming evidence ofGarcia

### Bonilla's guilt leads us to conclude that the outcome of histrial was notmaterially affected by the admission of the ER 404(b) evidence. Affirmed. 

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WE CONCUR: 

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