### FILED 

## COURT OF APPEALS DIVISION 11 201511AR 10 

### NI 8 :38 IN THE COURT OF APPEALS OF THE STATE OF WASHII' BY
STATE OF WASHINGTON, DIVISION II

Respondent,

v. EDWARD JAMES STEINER, Appellant. In the Matter ofthe Personal Restraint Petition of:
EDWARD JAMES STEINER, Petitioner. No. 45501 -3 -II INGT0N

UNPUBLISHED OPINION
Consolidated with Nos. 45552 -

8 -II and 45693 -1 - II

WORSWICK, J. — 

### Ajury returned verdicts finding Edward Steiner guilty offelony harassment (threats to kill) and second degree malicious mischief. Thejury also returned a 

### special verdictfinding that Steiner committed his crime offelony harassment against a law enforcement officer while the officer was performing official duties. Steiner appeals his felony 

### harassment conviction, asserting that (1) sufficient evidence did not supportthejury finding the 

### essential element that the harassment victim reasonably fearedthat Steiner would carry out his threat to kill him, and (2) the trial court abused its discretion by admitting evidence ofSteiner' s previous assaultive behavior. Steiner also raises several claims oferror in two personal restraint 

### petitions thatwe have consolidated with his direct appeal, but Steiner does not identify any competent evidence in support ofthose claims. We affirm Steiner' s felony harassment

conviction and 

### deny his petitions.No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II FACTS 

### On July 5, 2013, United States Postal Service Supervisor Donald Sargent was working at the Port Angeles, Washington post office when he received complaints that Steiner was 

### bothering customers in the drive - through service area outside the post office building. Steiner walked away after Sargent asked him to leave the area. About 20 to 30 minutes later, Sargent 

### received complaints that Steinerwas back outside the post office building and was again bothering customers. When Sargent again asked Steinerto leave, Steiner asked ifhe could go inside to see ifhe received any mail. Sargent agreed, escorted Steiner in the building, and 

### checked ifSteiner had received any mail. Sargent told Steinerthat he did not receive any mail, and Steiner started to exit the building. As he was exiting, Steiner kicked and hit a door, which caused the glass window on the door to break. Steiner then hit a second door with his fist,which again caused the glass window on the door to shatter. Sargent called the police. Port Angeles Police Officer Andrew Heuett responded to the call. Heuett had twice 

### contacted Steiner earlier that same day based on reports that Steinerwas drinking in public and was yelling at people. Heuett called for medics when he saw that Steiner' s right wristwas 

### bleeding. While waiting for medics to arrive, Heuett handcuffed Steiner' s left arm and held Steiner's right arm. After Steiner began to physically resist his detention, Heuett instructed him to kneel on the ground; Steiner complied. Steiner again resisted his detention, and Heuett, now 

### assisted bytwo other officers, placed Steiner in aprone position and handcuffed both ofhis arms

2No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II behind his back with two sets of handcuffs that were linked together. After Heuett read Steiner 

### his Miranda' rights, Steiner began yelling several profanities at Heuett.

Heuett searched Steiner and found what Heuett believed to be a multi - tool and a box 

### cutter,which items were laterfound to be afolded up pair ofpliers and a small - bladed can opener. At some point when the medics were on the scene or shortly after the medics left, Steiner told Heuett, " I am going to kill you" and " I' m going to [ expletive] shank you." Report of Proceedings (RP) at 88. 

### Heuett transported Steinerto a hospital to treat his injuries. On the way to the hospital, Steiner continued threatening Heuett, stating, " I' m going to [ expletive] cut your throat," and " I' ll
get your rifle and shoot you with it. RP at 91. After a doctor checked Steiner' s injuries, Heuett transported Steiner to the jail. As they were leaving the hospital, Steiner told Heuett, "[ Y]ou' re

not going to make it to the jail." 

### RP at 92. Heuett began to worry that he did not conduct a thorough enough search ofSteiner for weapons. Heuett also became nervous because Steiner' s 

### threats to kill him were specific in nature. Heuett took Steiner's threats seriously and believed 

### that Steiner was capable ofcarrying out his threats based in part on Steiner' s " history of

assaultive behavior." RP at 102. 

### The State charged Steiner with felony harassmentand two counts ofsecond degree 

### malicious mischief.

2 Before trial,the trial court held a hearing to determine the admissibility of evidence concerning Steiner' s previous incidents ofassaultive behavior. At the evidentiary

1 Miranda v.Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 2 The trial court dismissed one count of second degree malicious mischiefbefore trial.
3No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II 

### hearing, Heuetttestified that he had heard about Steiner's previous threatening and assaultive behavior in conversations with other officers. 

### Steiner furthertestified at the evidentiary hearing that his knowledge of Steiner' s prior assaultive behavior had an effect on his perception of Steiner' s threats to kill him, stating:

T] here are some people we deal with who act very contentiously (sic), swearing a whole bunch and we found out later that the person is, you know, embarrassed 

### about what happened, they were really intoxicated or they didn't have any sort of prior record. And that' s happened several times where someone is normally not a 

### problem at all and had avery bad night. And from what I heard about Mr.Steiner, it indicated to me that this was not the situation at all. 

### I]t's my perception that someone who has a history of assaultive behavior and making threats is more likely to actually take them out then [ sic] someone who throws offa comment that' s out ofcharacter that they wouldn't normally act on. RP at 30 -

31. The trial court ruled that evidence that Heuett had heard about Steiner' s prior 

### assaultive behavior was admissible to show only Heuett's reasonable fearthat Steinerwould carry out his threats to kill, stating:

I think based on the [ State v. Barragan, 102 Wn. App. 754, 9 P.3d 942 2000)] case, the limited dissertation as to — or statements made concerning what 

### Officer Heuett knew aboutthe defendant and how it affected his perception ofthe statements that were made to him is admissible for the limited purpose ofjust that. 

### But I thinkwhen I questioned Officer Heuett, specifically he said from other officers he is aware— because this was his first contact with Mr. Steiner, but prior to his contact with Mr. Steiner, he was aware from other officers that he has demonstrated in the past assaultive behavior and made threats to other residents at Maloney Heights. And I think there' s no issue as to whether or not that occurred or not, I know for certain that Mr. Steiner has numerous convictions for harassment on his record, and I think I tried one ofthem with regards to some neighbors there 

### at Maloney Heights. I can't recall specifics, but I do recall that was the case. So I don't think that' s an issue as to whether or not thatwas true or not, so, I am going 

### to let Officer Heuett testify that he was aware from other officers within the law enforcement community that there' d been incidents of assaultive behavior and threats to residents at Maloney Heights.

4No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II 

### I' m not going to allow in the fact that he was kicked out [ of Maloney Heights] because I think that' s a[ n] issue —whether or not that' s true or not I don' t know, but there' s got to be some basis for that. 

### But I think the assaultive behavior and threatening to other residents is the issue. 

### Whether he was kicked out of Maloney Heights or not kicked out really doesn' t matter.

I think that —

the other analysis I need to make, [ defense counsel], is probative versus prejudicial. 

### I think this is certainly more probative ofthe issue involved than it is prejudicial to Mr. Steiner. Certainly everything negative is prejudicial to some degree, but I thinkthis has more probative value than prejudicial value. State]: 

### So,the Court is makingthe specificfindingthatthe probativevalue substantially outweighs the prejudicial effect?

Trial court] : Yes. RP at 42 -

44. 

### Attrial, Sargent and Heuetttestified consistently with the facts as stated above. Regarding evidence of Steiner' s prior assaultive behavior, Heuett testified at trial as follows:

State]: 

### Okay. Nowatthis point,was there anyother information you were 

### relying on that made you think itwas possiblethat hewould carrythrough with his threats? Defense counsel]: Objection, hearsay.

Trial court] : I thinkthis is what we talked about earlier and I will overrule the objection.

Heuett]: 

### Um, I've had conversations with other officers in my department 

### speaking about cases inwhich Mr.Steinerwas involved in assaults and also making threats. State]: 

### Okay.Andwhat aboutthis information thatyou received from other officers made you pay attention to these threats?

Heuett]:... [ 

### I]t's my perception that someone with a history ofassaultive behavior, I think that a pattern like that suggests that there' s a lot more danger, a 

### lot more reality when someone' s making the threat. RP at 100 -102. The trial court then interrupted questioning to instructthejury as follows:



### The testimony of Officer Heuett as to the Defendant's past behavior is admissible only with regard to the 

### following element of the crime: Was it

5No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - 1I reasonable for Officer Heuett to believe Defendant would carry out his threats to kill Officer Heuett. 

### This testimony shall be considered by you for no otherpurpose." 

### RP at 102.3 There was no further evidence presented attrial regarding Steiner's alleged prior assaultive conduct. Thejury returned verdicts finding Steiner guilty offelony harassment and second degree malicious mischiefand returned a special verdict finding that Steiner committed 

### felony harassment " against a law enforcement officerwho was performing his or her official duties at the time ofthe crime," 

### knowingthat "the victim was a law enforcement officer." Clerk' s Papers ( CP) at 35 -38. 

### Steiner appeals his felony harassment conviction. ANALYSIS I. SUFFICIENCY OF THE EVIDENCE Steiner first contends that the State failed to present sufficient evidence in support of his 

### felony harassment conviction. Specifically, Steiner contends thatthe State did not present sufficient evidence that his words or conduct placed Heuett in reasonable fear that he would 

### carry out his threat to kill. We disagree.



### 3 The trial court also provided thejurywith a similarwritten instruction that stated: Testimony by Officer Heuett as to the defendant's alleged past behavior is admissible only on the following elementofthe crime ofHARASSMENT: Was it reasonable for Officer Hewett [sic] to believe that the defendant would carry out his threats to kill Officer Heuett? 

### His testimony concerning alleged past behavior shall be considered by you for no other purpose. Clerk' s Papers at 50.

6No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II 

### A claim ofinsufficiency admits the truth ofthe State' s evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 1992). 

### We thus evaluate the sufficiency ofevidence in support ofa conviction by asking whether,viewing the evidence and all reasonable inferences from that evidence in the light most favorable to the State, any rational trier offact could have found the crime' s essential elements beyond a reasonable doubt. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct 

### evidence are deemed equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 1980). 

### And we deferto the trier offact on issues ofwitness credibility and resolving conflicting 

### testimony. State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308 ( 1989). To convict Steiner for felony harassment as charged here, the State had to prove beyond a 

### reasonable doubtthat Steiner (1) without lawful authority (2) knowinglythreatened to kill Heuett or any otherperson, and (3) Steiner' s words or conduct placed Heuett in reasonable fearthat the threat to kill would be carried out. RCW 9A.46.020( 1)( a)( i), (2)( b); State v. Mills, 154 Wn.2d 1, 10 -12, 109 P. 3d 415 ( 2005). 

### Steiner challenges only the-sufficiency ofevidence in support of the last element, that his words or conduct placed Heuett in reasonable fear that the threat to kill would be carried out.

Here, the State presented evidence that Steiner made several specific threats to kill Heuett, 

### including telling Heuett, " I am going to kill you;" " 

### I' m going to [expletive] shank you;" I' m going to [ expletive] cut your throat;" " I' ll get your rifle and shoot you with it;" and Y] ou' re not going to make it to thejail." RP at 88, 91 -92. Heuett testified that he took 

### Steiner' s threats seriously and believed that Steinerwas capable ofcarrying out his threats. Heuett stated that he became concerned about the thoroughness ofhis search of Steiner for

7No. 45501 -3 - II

Consol. Wi Nos. 45552 -8 -II; 45693 -1 - II 

### weapons because, during a field search ofa suspect, officers search only the primary places of
concern such as the suspect' s pockets and waistband but do not search other areas in which the 

### suspect may be carrying weapons. Heuett also stated that he took Steiner' s threats seriously based on the specific nature ofthe threats and based on " conversations with other officers in my department speaking about cases in which Mr. Steiner was involved in assaults and also making threats." RP at 98 -101.

Although the undisputed evidence showed that Steiner was handcuffed in the back of 

### Heuett' s patrol vehicle when threatening to kill Heuett, Port Angeles Police Sergeant Barbara McFall testified that handcuffed suspects have been able to get their arms in front ofthem by 

### skim[ming] them over their bottom,put[ting their] legs through and bring[ing] them up in front." RP at 132. And here the evidence showed that Steiner was handcuffed behind his back with two sets ofhandcuffs that were linked together,thus providing Heuett with a reasonable 

### fear that Steiner could maneuver his arms in a mannerthat made him capable ofcarrying out his threats. Moreover, McFall also testified that suspects have attacked officers while the suspects' arms were still handcuffed behind them. Taken together and viewed in a light most favorable to 

### the State, this evidence was sufficient for any reasonablejury to find that Heuett' s fearthat Steiner would carry out his threat to kill was objectively reasonable under the circumstances.

Steiner argues that State v. C.G., 150 Wn.2d 604, 80 P. 3d 594 (2003), supports his claim that the State failed to present sufficient evidence to support the reasonable fear element ofhis 

### felony harassment conviction. In C.G., the alleged harassment victim testified thatthe defendant' s threat to kill him " caused him concern" and that "based on what he knew about C.G., she might try to harm him or someone else in the future." 150 Wn.2d at 607. Our

8No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II 

### Supreme Court held thatthe alleged victim's testimonywas insufficient to prove felony harassment based on a threat to kill because the statute requires the State to " prove that the

victim is placed in reasonable fear that the threat made is the one that will be carried out." C.G., 150 Wn.2d at 610 ( emphasis added). Here, unlike in C.G., Heuett testified he was afraid that 

### Steinerwould carry out his specificthreats to kill,not merelythat Steinerwould harm him in an unspecified way in the future:

State]: Okay. 

### Specifically in this case why were you taking [ Steiner' s threats] seriously?

Heuett]: Uh,the threats ofusing a shank on me or cutting my throat,those are means available to him. Anyone can purchase pocket knives or blades. Anyone 

### can sharpen an object into being a shank. So this isn't I' m going to hit you with an airplane and I' m going to blow up your house with some complex bomb. This is I' m going to stab you or.I' m going to cut your throat. 

### So those ones being means sic) that I'm sure are available to him I found concerning, also by his demeanor. 

### Also his statements about you' re not going to make it to thejail. I went through the short list ofthings in my head that could cause that, um, and there have been —well, um — I was certainly concerned that there was a possibility that he could have a firearm. So I was nervous that, you know, he was 

### going to be able to reach something that I wasn't aware ofwhile we were driving to thejail.

State]: 

### Okay. And did you thinkthathe would be capable ofcarrying this out: Heuett] : Yes. RP at 99 -100. Because Heuetttestified he feared that Steiner would carry out the specific threats 

### that Steiner made, C.G. is clearly distinguishable from this case and does not support Steiner' s claim ofinsufficient evidence. Accordingly, we hold that sufficient evidence supported Steiner' s 

### conviction offelony harassment based on athreat to kill. II. ER 404(b) 

### Next, Steiner contends thatthe trial court abused its discretion by admitting evidence of his prior assaultive behavior. Again, we disagree.

9No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II We review a trial court' s decision to admit or exclude evidence for abuse ofdiscretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P. 3d 119 ( 2003). A trial court abuses its discretion if its decision " is manifestly unreasonable or based upon untenable grounds or reasons." State v. Powell, 126 Wn.2d 244, 258, 893 P. 2d 615 ( 1995). ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character 

### ofa person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, 

### preparation, plan,knowledge, identity, or absence ofmistake or accident. Under ER 404(b), a defendant' s prior misconduct is inadmissible to show the defendant' s 

### propensity to commit the charged crime. State v. Fisher, 165 Wn.2d 727, 744, 202 P.3d 937 2009). But ER 404(b) does not prohibit evidence ofthe defendant' s prior misconduct for other 

### purposes, such as demonstrating motive, intent, a common scheme orplan, or lack ofmistake or accident. Fisher, 165 Wn.2d at 744. ER 404(b) must be read in conjunction with ER 403, which rule " requires the trial court to exercise its discretion in excluding relevant evidence that would be unfairly prejudicial." Fisher, 165 Wn.2d at 745.

Before admitting evidence subject to ER 404(b), the trial court must "( 1) find by a 

### preponderance ofthe evidence the misconduct actually occurred, (2) identify the purpose of admitting the evidence, (3) determine the relevance of the evidence to prove an element ofthe
crime, and (4) weigh the probative value against the prejudicial effect ofthe evidence." Fisher,_ 165 Wn.2d at 745. 

### Steiner contends that the trial court erred in admitting evidence ofhis prior

assaultive conduct because ( 1) the State failed to prove 

### by a preponderance that the priorNo. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -I1; 45693 -1 - 11

assaultive conduct occurred, (2) the State failed to establish the relevance ofthe evidence, and 

### 3) the trial court did not weigh the evidence' s probative value against its prejudicial effect.4 A. Occurrence of Prior Assaultive Conduct 

### Steiner first contends thatthe trial court erred by admitting evidence ofhis prior assaultive conduct because the State failed to establish by a preponderance ofthe evidence that such prior assaultive behavior occurred. We disagree. 

### First, as the trial court twice noted atthe ER 404(b) hearing, there was no issue regarding the occurrence of Steiner' s prior assaultive conduct. Steiner did not dispute the fact ofhis prior 

### assaultive conduct, instead disputing only the fact ofhis eviction from Maloney Heights. And the trial court agreed with Steinerthatthe State had failed to establish the fact ofhis eviction by 

### a preponderance ofthe evidence, ruling that the State was prohibited from presenting evidence of his eviction at trial. Absent a dispute as to the occurrence of a prior bad act, the trial court need


### 4 As an initial matter,the State argues that Steiner waived his ER 404(b) claim on appeal by 

### failingto objectto the admission ofhis prior assaultive conductunderthat rule attrial. We disagree. In general, a parry' s failure to objectto evidence attrial waives a challenge to a claimed evidentiary error on appeal. ER 103( a)( 1); Powell, 126 Wn.2d at 256. But where a trial court makes a final ruling admitting or excluding evidence pursuant to a motion in limine, " the 

### losing party is deemed to have a standing objection ... [ u]nless the trial court indicates that further objections at trial are required.'" Powell, 126 Wn.2d at 256 (alteration in original) quoting State v. Koloske, 100 Wn.2d 889, 895, 676 P. 2d 456 ( 1984), overruled on other grounds 

### by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 ( 1988), 113Wn.2d 520, 782 P.2d 1013 ( 1989)). 

### Before trial, defense counsel told the trial court thatthere was an evidentiary issue regarding the alleged prior bad acts of Mr. Steiner." RP at 10. Even ifwe were to deem this an insufficient . objection to preserve Steiner' s ER 404(b) claim on appeal, the trial court ruled in limine that evidence that Heuett had heard about Steiner' s prior assaultive conduct was admissible at trial. 

### Accordingly, under Powell, Steiner is deemed to have had a standing objection to the admission of the ER 404(b) evidence and, thus, did not waive his claim of error on appeal. 126 Wn.2d at 256.

11No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II 

### not determine whether the prior act occurred by apreponderance ofthe evidence. Barragan, 102 

### Wn.App. at 760. Itthus follows that the State need not prove by a preponderance the

occurrence of undisputed prior acts. 

### Second, Steiner did not object to the trial court's reliance on his criminal history to establish the fact ofhis prior assaultive behavior atthe evidentiary hearing below, and he does not challenge the trial court' s reliance on his criminal history in this appeal. Instead, Steiner argues that the trial court violated CODE OF JUDICIAL CONDUCT CJC 3.3 by relying on personal 

### information to establish the fact ofhis priorassaultive conduct.5 Butthe trial courtappropriately relied on Steiner' s criminal history to establish the occurrence ofhis prior assaultive conduct by
a preponderance ofthe evidence, stating:

P] rior to his contact with Mr. Steiner, [Heuett] was aware from other officers that he has demonstrated in the past assaultive behavior and made threats to other 

### residents at Maloney Heights. And I thinkthere' s no issue as to whether or notthat occurred or not, I know for certain that Mr. Steiner has numerous convictions for
5 CJC 3. 3 provides: 

### Acting as a Character Witness. Ajudge shall not act as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character ofa person in a legal proceeding, except when duly summoned. We fail to see how this rule applies to a trial courtjudge' s remark outside the presence ofthe 

### jurythat he believed he had previously presided overa case involving the defendant. Moreover, CJC 2.9( C) provides thatjudges may " consider ... 

### any facts that may properly bejudicially noticed." And ER 201( b) states in relevant part, "

### Ajudicially noticed fact must be one not subject to reasonable dispute in that it is ... 

### capable ofaccurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." The fact that a trial court 

### judge had presided over a previous trial involving the defendant is one that may properly be 

### judicially noticed under ER 201(b) because it is " capable ofaccurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." 

### Accordingly;had the trial court here relied on that fact in finding the occurrence of Steiner' s prior assaultive conduct by a preponderance of the evidence, such reliance would be proper.No. 45501 -3 - II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II harassment on his record, and I think I tried one of them with regards to some 

### neighbors there at Maloney Heights. I can't recall specifics, but I do recall thatwas the case. So I don't think that' s an issue as to whether or not that was true or not, 

### so, I am going to let Officer Heuett testify that he was aware from other officers within the law enforcement community that there' d been incidents of assaultive behavior and threats to residents at Maloney Heights. RP at 43. Because Steiner did not dispute the fact ofhis prior assaultive behavior at the ER 

### 404(b) hearing, and because he does not challenge the trial court's reliance on his criminal historyto establish the occurrence ofhis prior assaultive conduct by apreponderance ofthe evidence, we reject his contention thatthe trial court erred by admitting the evidence on this ground.6 B. Relevance of Prior Assaultive Conduct 

### Next, Steiner contends that the trial court erred by admitting evidence ofhis prior assaultive conduct because the State failed to establish the relevance of such prior assaultive conduct. This contention lacks merit. The State asserted atthe ER 404(b) hearing that Steiner's prior assaultive conduct was relevant " to show the reasonableness of [Heuett' s] fear and his apprehension about whether the Defendant would carry out his threat." RP at 40. And it is well 

## establishedthat in aprosecutionforfelony harassment, avictim's knowledge ofthe defendant's prior assaultive conduct is relevantto show the victim's reasonable fearthat the defendant would

6 Although unclear from his brief,Steiner also appears to take issue with the admission of 

### Heuett's testimony regarding his prior assaultive conduct based on inadmissible hearsay.. This 

### claim lacks merit. ER 801(c) defines "hearsay" as " a statement, otherthan one made bythe declarant while testifying at the trial or hearing, offered in evidence to prove the truth ofthe matter asserted." Heuett' s testimony that he had heard of Steiner' s prior assaultive conduct was 

### nothearsay because itwas not offered to prove that Steinerhad previously engaged in assaultive conduct. Rather, it was offered for the statement' s effect on Heuett and to show the 

### reasonableness ofHeuett' s fearthat Steinerwould carry outthe threatto kill.
13No. 45501 -3 - II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - II 

### carryout his or herthreat. See, e.g.,Barragan, 102 Wn.App.at 759 (defendant's statements to victim regarding defendant's earlier successful fights relevantto prove reasonableness of 

### victim' s fearthat defendant would carry out his threats against victim);State v. Ragin, 94 Wn. App. 407, 411 -12, 972 P.2d 519 ( 1999) ( "[ Victim' s] knowledge of [ defendant' s] prior violent

acts was relevant to the reasonable fear element of

### felony harassment. "). 

### Accordingly,we hold the State established the relevance ofevidence concerning Steiner's prior assaultive conduct, and 

### the trial court did not err by admitting the evidence on this ground. C. ER 403 Balancing Analysis 

### Finally,Steinercontends thatthetrial court failed to conduct an ER403 balancing analysis
on the record. But the record belies Steiner' s contention. Here the trial court stated on the record:

I think that—the other analysis I need to make, [ defense counsel], is probative 

### versusprejudicial. I thinkthis is certainly more probative ofthe issue involvedthan it is prejudicial to Mr. Steiner. Certainly everything negative is prejudicial to some degree, but I think this has more probative value than prejudicial value. RP at 44. Immediately 

### following this statement, the State asked, " So, the Court is making the specific 

### finding that the probative value substantially outweighs the prejudicial effect ?"to which the trial court responded, Yes. RP at 44. 

### Steiner appears to argue that the trial court' s ER 403 balancing analysis was inadequate, but he does not explain what more the trial court was required to do and does not cite any

14No. 45501 -3 -II

Consol. Wi Nos. 45552 - 8 -II; 45693 -1 - 11 authority supporting his argument that the trial court' s analysis was inadequate. The trial court 

### did not abuse its discretion by admitting evidence ofSteiner' s prior assaultive conduct. III. PERSONAL RESTRAINT PETITION ISSUES Steiner has filed two separate personal restraint petitions that we have consolidated them

with his direct appeal. In cause number 45552 - 8 -I1 (Wash. filed Oct. 28, 2013), Steiner appears to contend that ( 1) the Port Angeles Police Department has fabricated charges against him, (2) 

### his speedytrial rightwas violated because the trial court improperly continued his trial to
accommodate the vacations of witnesses and the prosecutor, (3) his defense counsel was 

### ineffective for failing to call witnesses on his behalf, ( 4) Heuett committed perjury during trial, and (5) his Eighth Amendment rights were violated bythe trial court' s excessive bail requirement. In cause number 45693 -1 - II ( Wash. filed Oct. 3, 2013), Steiner appears to repeat 

### his speedytrial, ineffective assistance ofcounsel, and perjury claims. We deny Steiner' s petitions.

To obtain reliefthrough a personal restraint petition, Steiner must show either constitutional error that resulted in actual and substantial prejudice or nonconstitutional error that 

### resulted in a complete miscarriage ofjustice. In re Pers. Restraint ofCook, 114 Wn.2d 802,


### 7 Even assuming thatthetrial court's ER 403 balancing analysis was inadequate,the record here is sufficient to establish that the prejudicial effect ofthe evidence at issue did not substantially outweigh its probative value. Evidence that Heuett had heard about Steiner' s prior assaultive 

### conduct was highly probative ofwhether Heuett had a reasonable fearthat Steiner would carry 

### out his threats to kill. Barragan, 102 Wn.App. at 759; Ragin, 94 Wn.App. at 411 -12. And the evidence had little prejudicial effect; Heuett's testimony about Steiner' s alleged prior assaultive behavior was briefand did not describe the nature ofSteiner' s alleged prior assaults, stating only that he had heard aboutthe prior assaultive behavior from other officers. Additionally,the trial 

### court instructed thejury not to consider the evidence for any purpose other thanto evaluate the reasonableness of Heuett' s fearthat Steiner would carry out his threat.
15No. 45501 -3 - II

Consol. Wi Nos. 45552 -8 -II; 45693 -1 - II 810 -13, 792 P. 2d 506 ( 1990). 

### Additionally, Steiner must support his claims oferrorwith a statement offacts on which his claim ofunlawful restraint is based and the evidence available to 

### support his factual allegations; he cannot rely solely on conclusory allegations. RAP 16.7(a)(2); In re Pers. Restraint ofWilliams, 111 Wn.2d 353, 365, 759 P.2d 436 ( 1988); see also Cook, 114 Wn.2d at 813 -14. 

### Steinerfails to identify any evidence in support ofthe conclusory allegations

contained in his petitions. 8 

### Accordingly,we deny Steiner' s petitions and affirm his felony harassment conviction. 

### A majority ofthe panel having determined thatthis opinion will not be printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06. 040, it is so ordered.

We concur:



### 8 For example, Steiner does not identify anycompetent evidence to showthat (1) the Port Angeles Police Department fabricated charges against him, (2) the trial court granted a continuance over his objection that resulted in a violation of his timely trial right, (3) he had requested defense counsel to call witnesses on his behalfand that such witnesses would have presented evidence favorable to his defense, (

### 4) Heuett had committed perjury, or (5) the trial court had imposed bail in an amount offending the Eighth Amendment right to be free from an excessive bail requirement.
16