*1 practice of law for period 2 years, with credit for the time already he has served suspension. under This would make him eligible for reinstatement on December 1982. condition, As a further I would require attorney McGrath to maintain his continuing legal educational requirements during his suspension so as to insure compe- his continuing tence attorney as an upon his reinstatement practice of law. punishment, believe, Such a I adequately will dem- onstrate our disapproval of Thomas McGrath's conduct and maintain our usual public's concerns for the interest. JJ., Dolliver,

Utter J. Williams, concur with Reconsideration denied February 1983. 48457-1. En Banc.

[No. December 1982.] Anthony Washington, State of v. Respondent, Saltarelli, Michael Petitioner.

Rosemary Bordlemay Seattle-King County P. Public petitioner. Association, for Defender Maleng, Prosecuting Attorney, A. Norm and James Trujillo, Deputy, respondent. Defendant appeals his of second J. conviction Pearson, deny

degree rape. having trial, his he At did not intercourse victim, maintained that she consented. with the but prior presents appeal of a issue he on is whether evidence years attempted rape previously was 4lA another woman rape. properly We or intent to admitted to show his motive hold that it was not. rape degree. charged with the first

Defendant was acquainted with She became victim testified as follows. Safeway store, a where worked as at a she defendant regular a customer. The checker and where defendant was victim had met defendant socially two or three times summer of but did not have intercourse with him on July 25, 1979, these On occasions. defendant asked the vic- to accompany tim him to dinner after she finished work. declined, fever, She permitted a complaining to drive her in his home van. Defendant stopped road, the van on a private beach forced the victim a onto bed the back of the van and her threatened with a knife and a handgun. small He forced her to undress and had intercourse her. with Defendant drove on after he saw a police car by. slow down pass partially The victim dressed herself and escaped from the van when it was stopped at an intersection. A a passing motorist took her to store, reported police where she that she had been raped by using a man gun. knife and disputed

Defendant victim's account the incident. He testified that he had sexual with intercourse her three times July to the incident of 25. He admitted to hav- ing with July 25, intercourse her on but claimed that she *3 Thereafter, consented. upset the victim became and out his jumped van when he told her that he loved someone else.

Over objection, defendant's the in its case in State chief permitted woman, was call to another young who testified to an with in encounter defendant 1975. This young woman store, had met in working defendant while a K Mart and accepted after one date an invitation to dinner at his apartment. She testified that her his forced into attempted bedroom and to remove her She clothes. fled to the bathroom subsequently escaped. and She that testified prosecute she did not because defendant had threatened to harm her if did. she The was that jury instructed this evi- "only dence was to be considered upon insofar as reflects the defendant's motives or intent." finding

The jury guilty degree returned a to second rape, 10-year suspended and defendant received a sen- appealed tence. He his on grounds conviction the trial court had abused its discretion in over admitting, The assault. testimony the 1975 objection, conviction, holding Appeals affirmed Court intent. motive or to show testimony properly admitted was Saltarelli, P.2d 1344 State v. App. 29 Wn. the convic- reverse Appeals, the Court of disagree We with tion, and remand for retrial. assault admissibility of evidence 404(b). ERby

is governed crimes, not admis- or acts is wrongs, other Evidence of in to show person of a order prove the character in sible however, may, It conformity therewith. that he acted be admissible motive, proof such as purposes, for other iden- plan, knowledge, opportunity, preparation, mistake or accident. tity, or absence of 404(b) into the point inquiry for an starting ER is crimes; it not be evidence of other should admissibility of Rules of isolation, in in with other conjunction read Evidence, provides ER 402 and 403. ER 402 particular Rele- that evidence which is not relevant is not admissible. vant evidence is defined ER 401 as make the existence of of having any tendency consequence to the determination any fact that is of than it would probable probable action more or less the be without the evidence. if may be excluded

ER that relevant evidence provides by, among substantially outweighed probative value applica- prejudice. unfair things, danger other 404(b) ER rule evidence admitted under bility of this 404(b). ER emphasized the Comment danger of undue The court must determine whether prejudice outweighs evidence, probative value of availability proof of other means of in view of the Vices, Other Other & Slough Knightly, factors. other Crimes, Washington Previous 41 Iowa L. Rev. 325 Whalon, See State v. App. Wn. law is accord. *4 464 P.2d 730 crimes,

Therefore, evidence of deciding whether admissible, court must consider wrongs, or acts this, must In to do evidence. order relevance of that decide whether the evidence makes the any existence of fact is of consequence to the determination of the action more or probable. less ER 402. If the evidence is relevant, determined to be then probative its value must be balanced against its prejudicial case, effect. ER In 403. no however, regardless of its probativeness, may relevance or the evidence be admitted prove the character of the accused in order to show that he acted in conformity there- 404(b). with. ER

As the comment points out, the rules prior Washing- ton law is accord. This court has held that evidence of prior crimes, wrongs, or acts must be closely scrutinized admitted if First, it meets two distinct criteria. the evidence must be shown logically to be relevant to a material issue before the jury. expressed We have the test as "whether the evidence as to other offenses is relevant and necessary prove an essential ingredient of the crime Goebel, State v. charged." 18, 21, 40 Wn.2d 240 P.2d 251 (1952). Second, if relevant, the evidence probative its value must be shown to outweigh potential prejudice. for Goebel, See State v. (1950); Wn.2d 218 P.2d 300 Whalon, State v. App. Wn. If admitted, the evidence is explanation an should be made to the jury purpose admitted, for which it is and the give court should a cautionary instruction that it is to be considered for State v. Goe- purpose no other purposes. bel, 36 Wn.2d at 378-79.

These decisions and the Rules of Evidence therefore require the court to establish the relevance of similar fact so, In evidence. doing identify the court must for which the evidence is to be The purpose admitted. will 404(b). be to establish a fact similar to those in ER listed The relationship of the evidence to the identified fact must be analyzed according to ER aspects. 401. This has two First, fact, the identified for which the evidence is to be admitted, must consequence be of to the outcome of the action. The evidence should not be admitted show example, if consequence intent is of no to the *5 Second, must tend to the evidence outcome of the action. prob- less of fact more or make the existence the identified concluded, by the has consideration Only able. after court relevant, it appro- is can aspects, of that the evidence both prejudicial the priately probative against the value balance effect under ER 403. relevance, and

A of and methodical consideration careful potential against pro- an intelligent weighing prejudice of cases, where particularly important bative value is sex potential highest. acts is at its prejudice the of person Once the accused has been characterized as of bent, inclination, by biological it seems abnormal driven to he relatively easy guilty, arrive at the conclusion that must be help he could not but be otherwise. Vices, Crimes, Other Other L.

Slough & Iowa Knightly, 325, Rev. 333-34

In not taken into opinion, our these considerations were case, present in the and the of the 1975 account evidence improperly assault was admitted. of assault admitted the

The evidence the 1975 was showing Implicit and motive intent. are three conclusions: that admission defendant's motive and intent are facts that are conse- case; quence the outcome evidence of the to that intent; is and assault relevant to defendant's motive probative establishing and that the value of the evidence prejudicial only motive and intent effect. outweighs explanation by support offered trial court in of admit- similarity of ting is the evidence its statement "the I facts the two events so close that think would are five allow it in." justify my reaching years back almost However, explain similarity the court does not how the first assault bears on the relevance of the two events Nor does it motive or intent latter. consequence intent to the explain reason motive or case, is admitted the fact of intercourse outcome of a when victim con- only issue whether sented.

We note that some jurisdictions appear ready admit evidence of prior rapes or attempted rapes prove intent or motive. See Annot., 330, 2 A.L.R.4th Usu- § 3[b] ally, in jurisdictions, these intent or motive is one of a catalog of matters for which the evidence is admissible. State, Goins v. (1980) (evidence 245 Ga. 262 S.E.2d 818 intent, motive, admissible to scheme, show plan, and bent Thomas v. mind); 234 Ga. 217 S.E.2d 152 (1975) (evidence intent, motive, admissible to show plan, scheme, bent of accused, mind of the and lack of consent of victim); State v. Hampton, 215 Kan.

(1974) (evidence admissible to show plan intent and of State, Rhine v. operation); (Okla. 336 P.2d 913 Crim. App. 1958) (evidence admissible to show scheme or plan, and intent). motive or Some cases approve the admission of e.g., State, Colbert v. alone, evidence to show intent 266, Ga. App. (1979), 253 S.E.2d 882 or to show intent or motive, e.g., Smith, State v. 265, 216 Kan.

(1975) .

These cases lack any analysis of the issue and do little pay more than lip service to the great potential for preju- dice inherent in evidence of prior sexual offenses. They have been criticized as motive using and intent as "magic passwords whose mere incantation will open wide the courtroom doors to whatever evidence may be offered in Goodwin, United States v. their names." 492 F.2d (5th 1974). Slough Cir. Knightly, the article 404(b), cited the comment to ER criticized the readiness years courts of 30 to ago prior crimes, admit evidence of wrongs, or acts sex cases. deciding

When the issue of guilt or innocence sex cases, where has prejudice peak, reached its loftiest our courts have been in announcing most liberal and foster- ing exception, a nebulous offering scant attention to inherent possibilities prejudice. Just when protection needed, is most collapse. the rules 41 Iowa L. Rev. at 334. We consider this criticism as valid written, as now when it was and refuse to allow evidence of a without care- crimes, be admitted acts to wrongs or balancing of its realistic relevance and a ful consideration for potential prejudice. its against probativeness relevance of possible turn first to consider We not "Motive" was motive. to defendant's the 1975 assault mean to have defined word jury but we defined for mind tempts inducement, or that which leads "[a]n Dictionary 1164 Black's Law act." indulge a criminal to Tharp, in State v. 96 Wn.2d (4th 1968), quoted ed. rev. clear how It is no means P.2d 961 a motive or inducement on a woman could be an assault years later. a woman almost 5 rape of different evidence to logical relevance explanation No court, Appeals, by the the Court offered trial motive was In the absence argument in its court. or the this achieve no more explanation, the evidence seems to such an propensity rape, precisely forbid general to show a than 404(b). Even of the 1975 by ER had den motive, probative value logically been relevant assault issue was whether slight. in this case would be defendant; to intercourse with victim consented case, was irrelevant this defendant’s motive present of evidence hand, effect prejudicial issue. On the other prejudicial prior attempted rape significant. slight whatever clearly outweighed of the evidence effect *7 of motive. have had on the issue might value it probative us that evidence reasoning leads to conclude Similar to have been admitted show 1975 assault should not cases, may crimes prior appropriate intent. In leading A treatise the issue of intent. relevant be acts, whether similar explains prior doing "the of other not, reducing is as of a scheme or useful clearly part innocent question in was done with the act possibility Evidence omitted.) 302, (Footnote Wigmore, 2 J. intent." § (rev. 1979). Thus, with intent charge in a of assault 245 at "former acts acknowledges that rape, Wigmore to commit being intent as negative relevant the kind are 357, 2 rape." Wigmore J. any kind than to commit other § e.g., Calaway See, States, at 334. v. United 408 A.2d 1220 (D.C. 1979). Umbaugh v. 250 Ark. 463 S.W.2d (1971). goes point However, the treatise on to out: charge rape, doing Where disputed, being is of of the act perhaps theoretically possible it is still that the practically, intent proved, issue; should be in if the is act question there can be no intent; real as to principle necessary applica-

therefore the intent tion. has no Wigmore § 357, 2 J. at 334. Supreme reasoning Court of California uses similar People Kelley,

in v. 242-43, Cal. 2d 424 P.2d Rptr. 57 Cal. It is not and should . . not be the law . that defendant's guilty plea places proof

not his intent issue so that always sex offenses with others is admissible. Such evi- proof dence is admissible cases where the of defend- ambiguous, ant's intent is as when he admits the acts and necessary denies the intent because of mistake or indispu- acts, . . . committed, accident. But where if tably show an evil intent and the defendant does not specifically intent, raise issue of the better reasoned cases hold that evidence of other crimes is admissible they performed prosecuting when were with the ... witness or where the offenses are not too remote and charged are similar to the offense and are committed persons prosecuting with similar to the witness. Then they showing are admissible as a common scheme or plan. There no issue intent the case before us. Defendant having admitted intercourse with the victim. He does not specifically Therefore, raise an issue of intent. intent was point required not an "essential which the state was Goebel, 18, 22, establish" this case. State v. 40 Wn.2d prior 240 P.2d 251 Evidence of the assault should showing not have been admitted for intent. satisfy Because the evidence did not the test relevance probativeness balancing against potential prejudice empty gesture. was an If evidence of the relevant, inadmissible, assault is not no matter how

367 charged. offense similar to the not should assault of the 1975

We hold that remand and motive or to show have been admitted a new trial. Utter, Dolliver, Stafford, C.J., and Brachtenbach, JJ., Williams, concur. and Dimmick, JJ., dissent. and

Rosellini is no there (dissenting)—The majority contends Dore, J. motive, Intent, plan like subject case. of intent issue in the crime element of have to be an does not design, 404(b) in ER under for evidence to be admissible order affirmatively placed his intent Saltarelli proper case. inter- in sexual engaged he that he had issue when testified victim, it was consensual. The that course with "A person as follows: jury on intent court instructed with intentionally acting intent when acts with or which consti- accomplish a result objective Thus, at issue 11. intent was a crime". Instruction tutes present case. which by reasoning jurisdictions I persuaded am sexual assaults where a prior have admitted evidence theory of con- defensive affirmatively raises the State, See, v. e.g., Rubio 607 S.W.2d rape charge. sent to a Jackson, v. 1980); People (Tex. 110 Cal. App. 498 Crim. v. Pendle- People (1980); 560, Rptr. 915 App. 3d 167 Cal. ton, 649, (1979); 371, Rptr. P.2d 158 Cal. 343 25 Cal. 3d 599 309, Enriquez, v. App. People 42 Colo. State, (1979); P.2d 694 v.

(1979); 95 Nev. 603 Williams (Alaska 1981); App. Ct. v. P.2d Davis Smith, P.2d 1215 v. State 216 Kan. analyzed the issue as Appeals Court of

The California Jackson, at 566: page follows had consented the victim theory, trial Defendant's he denial acts, to a was tantamount sexual to the inter- and sexual copulation oral intended achieve had offen- intimidation. Evidence force or course intent to establish was thus admissible ses present by corroborating the mony offense the victim's testi- long acts, that she had not consented to the sex so *9 prior as those offenses were not too remote and were charged. the similar to offense Supreme As the Alaska Court stated in Freeman v. (Alaska 1971): 486 P.2d 978 offense, Within the of context a sex related the classic example proper proof use of misconduct as charged, intent is where the accused admits the act benign claims to have had a intent. acknowledged touching In case, the Freeman the defendant Although a child but asserted his innocent intent. the ultimately Jimmy Freeman court concluded Freeman had failed to advance the ing defense of lack of the reason- persuasive present

of the court is in the context of the case. prior attempted rape properly

The evidence of the was proving admitted for the Saltarelli's likelihood to threaten and use force in sexual encounters where the victim did not consent. This evidence is relevant to his present rape intent to use force case. The facts previous attempted rape, sufficiently here, and the are sim- 404(b). pass relevancy ilar to the test of under ER In both cases, the victims were clerks in retail stores and kept returning awas customer who to the store go until the victim consented to out with him. On dates prowess victim, with each the defendant boasted of his as a expert raped attempted rape karate and then or the vic- get" tim. The defendant then threatened "to if each victim police. complained she to the regarding prior attempted rape

The evidence also present case, relates to Saltarelli's in the motive which requisite relevant to the element of nonconsent before jury. "Motive" has been defined this court as "An tempts inducement, or that which leads the mind to (4th indulge Dictionary a criminal act". Black's Law rev. 1968), quoted Tharp, 596-97, ed. State v. 96 Wn.2d (1981). proba- Here, the admitted evidence is

369 women, which toward hostility general of Saltarelli's tive Additionally, subsequent attack. his motive relates to Saltarelli, having showing goes toward the evidence compulsion of forcible success with the use had some may using again. had a reason for past, have desirability of the relevancy balancing effect is within the discre- against prejudicial Adams, v. court. State Wn.2d tion the trial has not been abused P.2d Judicial discretion person no reasonable reviewing unless the court concludes Johnson, State v. view of the tried court. would take the 700, 355 P.2d 13 Wn.2d prior attempted

In admit the evidence of deciding to rape, the trial court stated: having court read the statement witness] [the *10 on 24th of episode place day an that took the the recitation reciting January, of and the Court finds that pattern statements have a similar the

those seem to episode that is us in this action. before evidence, will the of No.

The Court rule that rule Rule on of admissibility seems to authorize the the basis facts, similarity the also allowed it to be used for it, a as the State intends to use deter- purposes credibility, I think mination of you motive and but is part I don't think that argued operandi, modus Up point, rule. the Court has no trouble of the testimony. admitting the you are at point looking of strain comes where

The However, years five old. because of events that are almost by the cases cited similarity pattern, of the and of deny I am the motion in limine. going similarity the facts I I think the doing am because I think that two events are so close that would my years five to allow it in. back almost justify reaching so, doing but I think that It reversible error might be facts, I will allow it. because II, precisely is at 241-42. This Report Proceedings must trial court make bal- determination" "conscious its against of admission evidence necessity ancing Tharp, at 597. effect, prejudicial under possible by limited the use of evidence trial further court instructing the jury as follows:

Anthony Michael Saltarelli is not for any on trial act or alleged conduct not Any information. testimony by you received regarding prior by acts the defendant not to be used determining whether the defendant guilty not guilty are of the offense now charged. You instructed that such evidence is to be used only insofar as it upon the motives or intent. reflects (Italics mine.) 12. Instruction

Conclusion Intent and motive are relevant the element noncon- sent primary which was the issue jury. before the The trial not court did abuse its in determining discretion probative value attempted rape of the other outweighed its possible effect, prejudicial as the balancing process of the court in the record reflects. Additionally, the court miti- gated the damaging effects the have might limiting instruction. reasons,

For I these would affirm the trial court and the Appeals. Court of 16, 1982.] 48725-1. En

[No. Banc. December Petitioner, Eleanor M. v. Department Nelson, Respondent. Employment Security,