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

v. DANIEL SCOTT GUNDERSON, Appellant. NO. 68116-8- DIVISION ONE

UNPUBLISHED OPINION FILED: August 5, 2013


### Lau, J. — Under ER 404(b), evidence of a defendant's prior crimes, wrongs, or acts is presumptively inadmissible to prove characteror propensity. But evidence ofthe defendant's prior assaults against a victim ofdomestic violence is admissible to assist thejury in assessing the victim's credibility. The trial court properly admitted evidence 

### of Daniel Gunderson's prior assaults against his former girl friend. We affirm Gunderson's domestic violence felony violation of a court order conviction. FACTS Daniel Gunderson and Christina Moore dated for approximately seven or eight years. The relationship produced a daughter, FG.68116-8-1/2
In September 2010, Christina and FG lived with Christina's mother, Bonnie 

### Moore, in Seattle.1 Gunderson lived in Longview. No-contactorders barred Gunderson and Christina from contacting each other. Nonetheless, Christina, Bonnie, and 

### Gunderson arranged forGunderson to pick up FG and take herto his home in Longview for a visit. Gunderson drove to Seattle on September 14 and stayed overnight at Bonnie's apartment. Christina, Bonnie, and FG were all present. 

### The next day, September 15, Gunderson gathered FG and her belongings and
went to his truck. Bonnie testified that she and Christina followed Gunderson out ofthe apartment and a "scuffle" took place between the three adults, with Bonnie and Christina trying to stop Gunderson from taking FG. Bonnie testified that during the scuffle, she was halfway in and halfway out ofthe truck, Gunderson and Christina were sitting inthe truck, and FG was on the truck's floorboard. Bonnie called the police during the scuffle. She testified that Gunderson then drove away with Christina and FG. OfficerAndrew Wilkes responded to Bonnie's call and took a written statement. Bonnie told OfficerWilkes that Gunderson suddenly grabbed FG and ran toward a silver truck. Bonnie reported that Christina "yelled at [her] he's trying to take [FG]," and Bonnie ran to the truck and tried to lockthe door. Report of Proceedings (RP) (Oct. 24, 2011) at 23. Bonnie stated that Gunderson "threw [FG] inthe truck" and drove away with Christina and FG, and Bonnie was dragged for approximately 75 feet before she 

### fell off. RP (Oct. 24, 2011) at 23. As Gunderson drove away, Bonnie saw him hit Christina. 

### 1Forclarity, wereferto the Moores bytheirfirst names.68116-8-1/3 

### Christina testified thatwhen Gunderson leftBonnie's apartment on September 15, Bonnie followed him outside to the truck. Christina said that Bonnie and 

### Gunderson argued, but she denied that Gunderson hither or Bonnie. Christina testified that despite having no plans to go for a drive and having no possessions with her, she calmly entered the truck and left with Gunderson and FG. 

### The State charged Gunderson with one count ofdomestic violence felony 

### violation of a court order. The Statefurther alleged the aggravating factor ofcommitting the offense "withinsight or sound ofthe victim's or the offender's minor child underthe age ofeighteen years .. . ." At a pretrial hearing, the State moved to admit 

### Gunderson's two prior fourth degree assault convictions—both committed against Christina—under ER 404(b). The State expected Christina to minimize or recant 

### regarding the September2010 incident and soughtto admit evidence ofGunderson's prior assaultive behaviorto "illustrate the credibility of Christina Moore, and place it in the context ofthe entirety ofthe relationship." RP (Oct. 24, 2011) at 52. The courtfound by a preponderance ofthe evidence that the prior acts occurred and determined thatthe evidence was "more probative than prejudicial because itgoes squarely to her credibility issue, and the other arguments go to weight, not admissibility." RP (Oct. 24, 2011) at 53. The court clarified, To the extent that Miss Christina Moore either states that she was not assaulted, or states she cannot rememberthe assault, then her credibility is in question, then the State may attempt to attack her credibility by bringing up these prior incidents as in support ofthe State's theory that she may be minimizing what 

### actually happened, or choosing not to rememberwhat actually happened because ofthe cycle ofdomestic violence, because she has been involved in incidents before where she has been assaulted. RP(Oct. 24, 2011) at 55-56.68116-8-1/4
On direct-examination, the State asked Christina aboutthe prior assaults. She testified that in 2008, Gunderson pushed her during an argument and she called the 

### police.2 She also stated thatin 2010, Gunderson arguedwith herfriend Brooke, then grabbed Christina's sweater as she sat in a car. Brooke called the police on that occasion. After Christina's testimony, the court read thejury a limiting instruction as requested by defense counsel: Iwant to indicate that, previously, Iallowed testimony of Miss Christina Moore with regard to a couple ofprevious incidents involving her and the defendant. The testimony was only allowed for the purposes ofevaluating her testimony - - for the purpose ofevaluating hertestimony and for no other purpose. You're not to considerthe evidence concerning the other incidents for any other purpose. RP (Oct. 24, 2011) at 131. 

### Thejury convicted Gunderson as charged. The court imposed a high end standard range sentence. Gunderson appeals. ANALYSIS 

### Gunderson argues thatthe trial courterred inadmitting evidence of his prioracts ofdomestic violence under ER 404(b). Under ER 404(b), 

### [e]vidence ofothercrimes, wrongs, or acts is not admissible to prove the characterof a person inorderto 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 of mistake or accident.



### 2This argumentoccurred at Gunderson's grandmother's house. On crossexamination, Christina said she called the police not because Gunderson pushed her but because Gunderson's grandmotherwas hurt and needed an ambulance. -4-68116-8-1/5
"This list ofother purposes for which such evidence ofother crimes, wrongs, or acts may be introduced is not exclusive." State v. Baker, 162 Wn. App. 468, 473, 259 P.3d 270, review denied, 173 Wn.2d 1004 (2011). A trial court must state its reasoning on the record when admitting ER 404(b) evidence. State v. Jackson. 102 Wn.2d 689, 693, 689 P.2d 76 (1984). To admit 

### evidence of a defendant's prior bad acts, the trial court must (1) find by a preponderance ofthe evidence thatthe acts occurred, (2) identify the purpose for which the evidence is soughtto be introduced, (3) find that the evidence is relevantto prove
an element ofthe crime charged, and (4) weigh the evidence's probative value against its prejudicial effect. State v. Fualaau, 155 Wn. App. 347, 356-57, 228 P.3d 771 (2010). We review a trial court's decision to admit evidence under ER 404(b) for abuse of discretion. Baker, 162 Wn. App. at473. A trial court abuses its discretion when its 

### decision is manifestly unreasonable or based on untenable grounds or reasons. State
v. Dixon, 159 Wn.2d 65, 75-76, 147 P.3d 991 (2006). 

### Our courts have addressed ER 404(b) evidence inthe domestic violence context. In State v. Grant, 83 Wn. App. 98, 105-06, 920 P.2d 609 (1996), involving a domestic 

### violence felony violation of a postsentence court order, the victimchanged her story 

### after initially denying thatthe defendant assaulted her. We held thatevidence of the defendant's priorassaults on the victim was admissible under ER 404(b) to help thejury
assess the victim's credibility and understand why she told conflictingstories and 

### minimized the degree of violence. Grant, 83 Wn. App. at 106-08. We emphasized that 

### "[t]hejurywas entitled to evaluate [thevictim's] credibilitywith full knowledge of the dynamics of a relationship marked by domestic violence and the effect such a
-5-68116-8-1/6 relationship has on the victim." Grant. 83 Wn. App. at 108. In State v. Maqers. 164 

### Wn.2d 174, 186, 189 P.3d 126 (2008), our Supreme Court adopted Grant's reasoning in concluding, "[P]rioracts ofdomestic violence, involving the defendant and the crime victim, are admissible in orderto assist thejury injudging the credibility of a recanting victim."

### InBaker, the trial court admitted evidence ofthe defendant's prior unreported domestic violence incidents againstthe victim to show motive and absence ofmistake


### or accident and to assist thejury in assessing the victim's credibility as a witness. Baker. 162Wn. App. at 472. On appeal, the defendant argued that Grant and Maqers only apply to cases involving recanting victims and, thus, those cases were inapposite in a case where the victim did not recant. Baker. 162 Wn. App. at475. We rejected this 

### argument, holding, "[T]he jurywas entitled to evaluate [the victim's] credibility withfull knowledge ofthe dynamics ofher relationship with [the defendant]." Baker. 162 Wn. App. at475. 

### Here, the State proposed to offer evidence ofGunderson's priormisconduct if Christina denied or minimized the September 15, 2010 incident during hertestimony. 

### The State argued that this evidence would help the juryevaluate Christina's credibility 

### with knowledge that her relationship withGunderson included pastdomestic violence. The State clarified thatthe basis for introducing evidence ofthe prior incidents was that 

### Christina was denying or minimizing the September 15 incident because of prior violence. The trial court conducted a full ER 404(b) analysis on the record and made clearthat to the extent Christina denied that Gunderson assaulted her on September 15

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### or minimizedthe incident, evidence ofGunderson's priormisconductwas relevantto show that Christina's denial or minimization was not credible. 

### WhileGunderson claims that the trial court concluded evidence of the prioracts was "admissible simplybecause the alleged victim's testimony contradicted that of other 

### witnesses," the record indicates otherwise. Appellant's Br. at 6. Thetrial courtinitially discussed potential conflictbetween Christina and Bonnie's testimony as a basis for 

### admittingevidence of the prioracts. But after further argument and the State's clarification that itwas not offering the evidencefor that purpose, the court amended its 

### ruling and admitted the evidence solely to help the juryevaluate Christina's credibility. See RP (Oct. 24, 2011) at 55-56 (State's clarification regarding its purpose in offering 

### the evidence and court's conclusion that the State may attack Christina's credibility by introducing the prior incidents to the extent she denied or minimized the September 15 assault). 

### As the trial court properly found, the prior acts evidence was highly relevant to explain the reasons Christina minimized or denied the September 15 incident—and, thus, relevant to prove whetherthe crime occurred. The court conducted the required 

### ER 404(b) analysis, finding that (1) the State proved the prior misconduct by a 

### preponderance oftheevidence,3 (2) thepriormisconductwasrelevantto the State's theory that, to the extent Christina denied or minimized the September 15 incident, her testimony was not credible, and (3) the evidence was more probative than prejudicial. 

### 3Gunderson does notchallengethetrial court'sdetermination that the State proved the prior assaults by a preponderance ofthe evidence. He argues the 

### prejudicial nature ofthe evidence only inconnection with his argument thatthe error he 

### alleges is not harmless and requires reversal. Because we find no error, we do not undertake a harmless error analysis.68116-8-1/8 

### Further, the trial courtlimited the State's use of the evidence and gave the jurors a limiting instruction, quoted above, prohibiting themfrom using the evidence except to evaluate Christina's credibility. Jurors are presumed to followthe court's instructions. 

### State v. Russell. 125 Wn.2d 24, 84-85, 882 P.2d 747 (1994). We find no abuse of discretion. CONCLUSION 

### The trial court properly admitted evidence ofGunderson's prioracts ofdomestic violence against Christina to help thejury evaluate her credibility. We affirm.

WE CONCUR:

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