-V ," .'

IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON STATE OFWASHINGTON, Respondent,

v. ABDIQAHAR ABDIRAHMAN ADAN, Appellant. No. 73544-6-1 DIVISION ONE UNPUBLISHED OPINION FILED: May 2, 2016

Leach, J. — Abdiqahar Adan appeals his convictions of misdemeanor harassment and unlawful imprisonment. He claims that the trial court abused its discretion when it admitted ER 404(b) evidence that Adan previously sexually assaulted the same victim. Also, Adan contends insufficient evidence supports the misdemeanor harassment charge because the State failed to prove that Adan's threats to kill the victim caused her to fear bodily injury. The trial court properly admitted the evidence of the prior sexual assault to prove an essential element of the crime, the reasonableness of the victim's fear. Viewing the evidence inthe light mostfavorable to the State, as we must, the record includes sufficient evidence for thejury to find that Adan's threat to kill caused the victim to reasonablyfear bodily injury.No. 73544-6-1 / 2 Background Substantive Facts Adan and M. began secretly dating in late 2013. M. testified that on October 24, 2015, Adan picked her up at her mother's house in Renton and drove her to the movie theater at Southcenter Mall. They walked to the movie theater but could not decide on a movie. They returned to the car. M. testified that back atthe carAdan started "screaming and hollering and calling me names all over again like she [sic] was doing inthe spring. How I'm still ugly. I'm still a lot ofthings." Then "[h]e physically picked me up andjusttook me outofthe car and just dropped me and drove off." She waited there until Adan returned and apologized; then she got backinthe car. M.testified thatAdan continued to yell at her as he drove to a restauranta 

### few blocks away. Then Adan decided that he wanted to have sex, tookoff all his clothes, and got into the backseat. M. said no. She asked Adan to take her home. Instead, Adan drove them to an IHOP restaurant in Seattle. At some 

### point, Adan took M.'s phone from her. M. left the restaurant while Adan was eating and started walking toward herapartmentnearby. 

### M. had been walking for five to ten minutes when she heard a car behind her. Adan pulled over, gotoutofthe car, grabbed her, and physicallyput herinto the car. As he drove off, he began yelling, calling her names, and banging his 

### head againstthe car. M. testified thatby this time shewas scared.

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### M. testified that Adan started threatening her, saying, "Tm going to kill you. You know, nobody's going to find you. I'm going to take you to the lake. 

### I'm going to dump your body. Nobody's going to find you,'" and "'Ifyou were in Africa, nobody would care.'" She responded, "Well, thank God I'm in America." Then Adan punched hertwice inthe mouth, knocking loose two ofherteeth. He then grabbed her hair and banged her head against the passengerwindow. M. testified that she believedAdan was going to kill her. Adan then drove to Colman Park on Lake Washington. He removed the 

### SIM(subscriberidentity module) card1 and batteryfrom M.'s cellphone. He told M. that he was taking the phone to keep her from calling the police. Adan grabbed her from the car and dragged her toward the lake as he continued to
scream at her. He put her down by the lake and began to wash his hands inthe water, still yelling at her, as she sat by the lake. She remembered seeing a
woman walking a dog but did not recall interacting with her or anything that happened before an ambulance arrived. Traci Janssen witnessed some ofthe events atthe park. Shetestified that she was walking her dog when M. walked toward her with a bloody mouth. M. asked ifshe could use Janssen's phone or ifJanssen would call 911 for her. Janssen sawAdan walking behind M.without speaking. Janssen quickly wentto



### 1 "[A] card that is inserted into a device (as a cell phone) and that is used to store data (as phone numbers or contact information)." Merriam-Webster Online Dictionary, http://www.merriam-webster.com/dictionary/SIM%20card (lastvisited Apr. 15, 2016).No. 73544-6-1 / 4 

### a different part of the park and called the police. Janssen could still see M. and Adan from where she stood. She saw Adan catch up to M., grab her in a hug, 

### and then start screaming at her while holding her at arm's length. Soon, the 

### police arrived. The juryheard Janssen's 911 call at trial. Procedural Facts 

### The State charged Adan with assault in the second degree, felony harassment, and unlawful imprisonment. M. and Adan provided substantially 

### different testimony about the incidents at trial. Adan denied and refuted all but one of M.'s allegations. Adan did not address the alleged sexual assault. The 

### Statelargelyrelied on M.'s testimony about the charged incident, as onlysheand Adan witnessed what occurred. 

### During a pretrial defense interview and briefly in a statement to a police officer, M. stated that Adan sexually assaulted her a few months before. She 

### never reported the incident to police and could not remember exactly when it 

### took place. M. testified about the incidentattrial. Inthe spring of 2014, she and Adan went to a park and satin the frontseats of her car. When it started getting late, M. told Adan that she wanted to leave. Adan got upset and started 

### screaming at her and banging his head in the car. He said that he was always sacrificing for her and insulted herappearance. M. was scared. M. testified that 

### Adan picked her up and put herinthe backseat of the car. Hetookthe car keys and locked all the doors and windows. Then he "forced himself on her and 

### started having sex with her. She screamed, butnobody heard her. After theNo. 73544-6-1 / 5 incident, she did not speak to Adan for a month, but she decided to get back togetherwith him because she still loved him. Before trial, the State asked the court for permission to introduce M.'s 

### testimony about the sexual assault incident. Adan opposed the request, relying 

### on ER 404(b). The trial court admitted the evidence. The court gave a limiting instruction twice—before the testimony was presented and before the jury deliberated. The instruction stated, "Before evidence of allegations of prior acts 

### is allowed, the Court advises you and instructs you that you may consider the 

### testimony only for the purpose of determining the witness's state of mind on October 24th and 25th." Adan also requested and received an instruction that 

### allowed thejury to consider misdemeanor harassment, a lesser included offense offelony harassment. 

### The jury found Adan not guilty ofassault inthe second degree and felony harassment but found Adan guilty of misdemeanor harassment and unlawful imprisonment. Adan appeals. Analysis ER 404(b) Evidence Adan contends that the trial court abused its discretion under ER 404(b) 

### when itadmitted M.'s testimonythatAdan sexually assaulted her several months beforethe charged incident.

-5-No. 73544-6-1 / 6 Interpretation of an evidentiary rule presents a question of law, which we 

### review de novo.2 When the trial court has correctly interpreted the rule, we review the trial court's decision to admit the evidence for an abuse ofdiscretion.3 A court abuses its discretion when it exercises it on untenable grounds or for 

### untenable reasons.4 "Failureto adhere to the requirements ofan evidentiary rule

can be considered an abuse ofdiscretion."5 

### ER404(b) prohibits admitting "[ejvidence ofothercrimes, wrongs, or acts" to prove a person's character and show the person acted in conformity withthat character.6 The same evidence may be admissible for other purposes, depending on its relevance and the balancing of its probativevalue againstunfair prejudice.7 To admitevidence ofotherwrongs, the trial court must (1) find by a 

### preponderance ofthe evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whetherthe evidence is relevantto prove an elementofthe crime charged, and (4) weigh the probative value 

### againstthe prejudicialeffect.[8] The trial court must conductthis analysis on the record.9 In doubtfulcases, the trial court should exclude the evidence.10 Ifthe court admits the evidence, itmust

2Statev. DeVincentis, 150Wn.2d 11, 17, 74 P.3d 119(2003). 3 DeVincentis, 150 Wn.2d at 17. 4State v. Vv Thanq, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). 5State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). 6State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). 7Gresham, 173 Wn.2d at420. 8VvThang, 145 Wn.2d at 642. 9State v. Smith, 106Wn.2d 772, 776, 725 P.2d 951 (1986) (citing State v. Jackson, 102Wn.2d 689, 694, 689 P.2d 76 (1984)). 10Vv Thang, 145Wn.2d at642; Smith, 106Wn.2d at776.No. 73544-6-1 / 7


### also give a limiting instruction to the jury.11 If the trial court gives a limiting instruction, we presume jurors have followed that instruction, absent evidence 

### provingthe contrary.12 Here, the trial court gave thejury an appropriate limiting
instruction. Adan challenges the trial court's decision on two grounds: (1) that the evidence of the prior sexual assault was not relevant to show M. reasonably feared Adan would carry out his threat to kill her and (2) that the evidence was 

### unfairly prejudicial. Adan contends that the evidence was not relevant because the earlier sexual assault incident did not include any death threats or evidence thatAdan used brute force or attempted to kill M. He also maintains that M. did not relate her fear of the charged threat to any consideration of the earlier incident. Thus, no evidence shows that the earlier incident affected her state of mind. 

### The trial court is generally the proper court to decide the relevance of 

### evidence, and this court reviews its decision for abuse of discretion.13 Relevant evidence musttend "to make the existence ofany fact that is ofconsequence to

11 Foxhoven, 161 Wn.2d at 175. 12 State v. Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008); State 

### v. Kirkman, 159 Wn.2d 918, 928, 155 P.3d 125 (2007); State v. Davenport. 100 Wn.2d 757, 763, 675 P.2d 1213 (1984). 13 Foxhoven, 161 Wn.2d at 176: State v. Lough, 125Wn.2d847, 861,889 P.2d 487 (1995).No. 73544-6-1 / 8


### the determination ofthe action more probable or less probable."14 Relevantprior 

### misconductevidencetendsto prove an issuethejurymustdecide.15 A person is guilty of misdemeanor harassment if he or she knowingly threatens "to cause bodily injury immediately or in the future to the person 

### threatened or to any other person,"16 which "places the person threatened in reasonablefearthatthe threatwill be carried out."17 The charge is elevated to a 

### felony if the threat constituted a threat to kill.18 Whether the threat created a "reasonable fear" is an essential element of both misdemeanor and felony 

### harassment.19 The fact finder applies an objective standard to determine if the victim's fear that the threat will be carried out is reasonable.20 This requires the jury to "'consider the defendant's conduct in context and to sift out idle threats 

### fromthreatsthatwarrantthe mobilization ofpenal sanctions.'"21 Washington courts have allowed evidence of prior misconduct to show that a victim's fear was reasonable. In State v. Johnson.22 this court held that evidence ofthe defendant's prior controlling or domineering behaviortoward the

14 ER 401; Foxhoven, 161 Wn.2dat176; Lough, 125 Wn.2d at 861-62. 15 See State v. Magers. 164 Wn.2d 174, 183, 189 P.3d 126 (2008); State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982) ("[T]he evidence must be 

### shownto be logically relevantto a material issue beforethejury."). 16RCW9A.46.020(1)(a)(i). 17RCW9A.46.020(1)(b). 

### 18 RCW 9A.46.020(2)(b)(ii). 19 Statev. Ragin, 94Wn. App. 407, 411, 972 P.2d 519 (1999). 20 Ragin. 94 Wn. App. at411. 

### 21 Ragin, 94 Wn. App. at 411 (guoting State v. Alvarez, 74 Wn. App. 250, 261,872P.2d 1123 (1994), affd, 128Wn.2d 1, 904 P.2d 754 (1995)). 

### 22 172 Wn. App. 112, 120-21, 297 P.3d 710 (2012), aff'd inpart, rev'd in part. 180Wn.2d 295, 325 P.3d 135 (2014).

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### victimwas relevantto prove the element ofreasonable fear. InState v. Binkin,23 this court held that the evidence of a prior threat against the same victim was 

### relevant to prove the element of reasonable fear. In State v. Magers.24 the Washington Supreme Court held thatthe trial court properly admitted evidence of acts causing defendant's prior arrest for domestic violence against the same victim and evidence of defendant fighting in jail to prove the element of reasonable fear. Here, the evidence that Adan previously sexually assaulted M. was similarly relevant to prove that she reasonably feared Adan would kill her, an essential element offelony harassment. Even ifrelevant, ifthe evidence's prejudicial effect substantially outweighs 

### its probative value, a trialcourtcannotadmitit.25 Adan asserts thatthe trialcourt did not properly weigh the probative value against the prejudicial effect. He maintains thatadmitting the uncharged rape evidence simplycaused thejurorsto have "a strong emotional reaction ofanimosity toward [him] and believed he had

an immoral and a criminal character." The trial courtmustbalancethe probative value ofthe evidence against its 

### potential prejudicial effect on the record.26 In this case, the trial court considered both parties' arguments on the record before concluding that the evidence was 

### 23 79 Wn. App. 284, 292-93, 902 P.2d 673 (1995), abrogated on other grounds by State v. Kilgore. 147Wn.2d 288, 53 P.3d 974 (2002). 

### 24 164Wn.2d 174, 183, 189 P.3d 126 (2008). 25 Ragin. 94 Wn. App. at412. 26 Foxhoven, 161 Wn.2d at 175.No. 73544-6-1/10 highly probative of whether M.'s fear was objectively reasonable and that this probative value outweighed its prejudicial effect. Whether M.'s fear that Adan would carry out his threat was reasonable is 

### a critical element of the crime charged.27 M. testified that Adan behaved aggressively and erratically during the charged incident, but this behavior alone 

### did not provide a contextfor M.'s state ofmind.28 Evidence thatAdan previously assaulted her was highly probative ofthis issue, as M.'s experiences with Adan would significantly influence her perception of what Adan would or would not 

### do.29 Excluding this evidence would have hindered the trier offact's ability to 

### determinethe reasonableness of M.'sfearthatAdan would carry out his threat.30 Although clearly prejudicial, the trial courtdid not abuse its discretion by deciding that its probative value outweighed its possible prejudicial effect. Before the jury heard the evidence, the trial court provided the required limiting instruction. We assume the jurors followed those instructions and only 

### used theevidencefor the permitted purpose.31 Thus, thetrial court did notabuse its discretion inadmitting the evidence ofthe sexual assaultunderER404(b). Insufficient Evidence for Misdemeanor Harassment Adan next contends insufficient evidence supports his conviction for the lesser included offense of misdemeanor harassment. The State contends that
27 Binkin. 79Wn. App. at292-93Smith. 28 Ragin. 94Wn. App. at412. 

### 29 Binkin. 79 Wn. App. at292-93. 30 Ragin. 94Wn. App. at412. 31 Ragin. 94Wn. App. at413.
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the "invited error doctrine" bars this challenge because Adan proposed the jury instructions for misdemeanor harassment as a lesser included offense. The "invited error doctrine" prevents a party from appealing or gaining a 

### windfall from its own errors.32 This doctrine would prohibit Adan fromchallenging the misdemeanor harassment instruction that he proposed at trial. But it does not preventAdan from challenging the sufficiency ofthe evidence to supportthe jury's verdict. Because the "invited error doctrine" does not apply, we consider the merits ofAdan's sufficiencychallenge. In considering a sufficiency of the evidence challenge, a reviewing court will reverse a conviction "only where no rational trier of fact could find that all 

### elements ofthe crime were proved beyond a reasonable doubt."33 The State may establish the elements of a crime by either direct or circumstantial evidence.34 This court draws all reasonable inferences from the evidence in 

### favor ofthe State and interprets itmoststrongly againstthe defendant.35 A claim of insufficient evidence admits the truth of the State's evidence and all reasonable inferences drawn from that evidence.36 We defer to the trier offact's

32 State v. Momah, 167 Wn.2d 140, 150-53, 217 P.3d 321 (2009); State v. Henderson, 114Wn.2d 867, 869-71, 792 P.2d 514 (1990). 33 State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005); State v. Salinas. 119Wn.2d 192, 201, 829 P.2d 1068(1992). 34 State v. Delmarter, 94Wn.2d 634, 638, 618 P.2d 99 (1980). 35 State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006); Salinas, 119 Wn.2d at 201; Smith. 155 Wn.2d at 501. 36Salinas, 119 Wn.2d at 201.

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decisions about credibility, conflicting testimony, and the persuasiveness of the evidence.37 To convict a defendant ofmisdemeanor harassmentthe State must prove beyond a reasonable doubtthat (1) the defendant knowingly threatened to cause bodily injury immediately or inthe future to the victim or any otherperson and (2) the words or conduct of the defendant placed the victim in reasonable fear that the threatwould be carried out.38 

### In State v. C.G..39 the Supreme Court overturned the defendant's conviction for felony harassment because the victim testified to fearing only bodily harm, not death. The court held that the State needed to prove that the victim was "placed in reasonable fear that the threat made is the one that willbe carried out."40 But the court noted that when the evidence shows a defendant threatened to kill, the State might also charge the defendant "with threatening to 

### inflict bodily injury, in the nature of a lesser included offense."41 Thus, a defendant may be convicted on the "misdemeanor charge even ifthe person threatened was not placed in reasonable fear that the threat to kill would be 

### carried out, butwas placed in fear of bodilyinjury."42

37 State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997); State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992), abrogated on other groudns by In re Pers. Restraint ofCross. 180Wn.2d 664, 327 P.3d 660 (2014).. 

### 38 RCW 9A.46.020(1)(a)(i), (b). 39 150Wn.2d 604, 610, 80 P.3d 594 (2003). 40C.G., 150Wn.2dat610. 41 C.G., 150Wn.2dat611. 42C.G., 150Wn.2dat611.

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Adan relies on C.G. to argue that because M. did not reasonably fear the harm he threatened (death), the State presented insufficient evidence to convict him of misdemeanor harassment. Adan correctly notes that M. never testified that he threatened to inflict bodily injury, only that he threatened to kill her. Thus, thejury did not convict him for "the threat made." But the facts here are opposite those ofC.G. InC.G.. the victim testified to a lesserfearthan the one required to provethe charged crime, and here M.testified to a greaterfearthan thatrequired for misdemeanor harassment. A threat to kill undoubtedly includes the lesser threat to inflict bodily injury. And fear of the threat to kill would similarly include fear ofbodily injury. The Supreme Court anticipated this very circumstancewhen it said that the State might charge a defendant who threatens to kill "with threatening to inflict bodily injury, in the nature of a lesser included offense." Thus, C.G. provides no supportfor Adan's argument. The State presented sufficient evidence to support Adan's misdemeanor harassment conviction. M. testified that Adan threatened to kill her and that she 

### believed he would carry out his threat. This testimony provided the only evidence ofAdan's threat. We deferto thejury decisions about M.'s and Adan's 

### credibility and do notreviewthe jury'scredibilitydecision on appeal.43 Arational juror, having heard thatAdan threatened to kill M., could then findthat M. did not reasonablyfearAdanwould kill herbutthat, instead, he would injure her.

43 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Casbeer, 48Wn. App. 539, 542, 740 P.2d 335 (1987).
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### The State provided evidence of Adan causing M. physical harm and acting 

### in a physically threatening manner. M. testified that Adan once sexually assaulted her after acting similarly erratically. She alsotestified that on the night 

### of the charged incident, Adan grabbed and shoved her and she feltscared of him. Then, afterthreatening to kill her, Adan punched her inthe face and hit her 

### head againstthe carwindow. Finally, the 911 callerwitnessed Adan holding M. 

### by her shoulders and "screaming" at her, even after her teeth were dislodged. Considering all the evidence in the light most favorable to the State, a rational 

### juror couldfind thatM. reasonably feared that Adan was threatening tocauseher bodilyinjuryand that he would carry out the threat. We affirmthe trial court. Conclusion 

### The trial court did not abuse its discretion by admitting the ER 404(b) 

### evidence of the prior sexual assault relevant to and probative of an essential element of the charged crime, which outweighed its prejudicial effect. And a rational trieroffact could havefound Adan guilty ofmisdemeanorharassment

-14-No. 73544-6-1/15 

### beyond a reasonable doubt because Adan's threats to kill M. caused her to reasonablyfear he would acton histhreatbyinflicting bodilyinjury. We affirm. 

# J^J

WE CONCUR:

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