STATE v. NAM (2007)

PUBLISHED IN PART OPINION

 ¶ 1 Chamroeum ¹ Nam appeals his convictions for attempted first degree kidnapping-domestic violence, and first degree robbery-domestic violence, based on an incident when he assaulted his girlfriend in the car and stole her purse.   We hold that the State failed to produce sufficient evidence that he took the purse from his girlfriend's person because the purse was on the seat of the car;  thus we reverse the robbery conviction and dismiss it with prejudice.   We also hold that the trial court made several evidentiary errors, necessitating a new trial regarding the attempted first degree kidnapping charge.   We reverse both convictions and remand for new trial on the attempted first degree kidnapping charge only.

FACTS

¶ 2 This case involves a domestic relationship between Chamroeum Nam and Tanya Harris.   Nam and Harris had a child in August 2000.   In early 2004, they were living with Harris's father in Thurston County.   But their relationship was troubled.   On February 27, 2004, Harris told Nam that he had to move out of her father's house.   Nam told Harris that he was “not going nowhere.”   2 RP (June 14, 2005) at 160.   Harris testified that Nam was upset and that he pushed her onto the bed.   Despite his refusal, Harris grabbed her car keys and left to go to work, leaving him at the house.   The record does not show when Nam actually moved out of the house.

¶ 3 On March 6, 2004, eight days after Harris asked Nam to leave, Nam assaulted Harris, leading to the present charges.   That day, Nam called Harris and asked to see their child.   Harris told him no.   Although she did not have a restraining order, in an attempt to keep him away, she warned him that she did have one against him.   Despite her warning, Nam was waiting outside Harris's father's house in a red car.

 ¶ 4 Harris, who was driving her own car, pulled up next to Nam's car, rolled down the window, and asked him what he was doing.   He replied that he wanted to see his son.   Nam then got out of his car and walked over to hers.   He reached in through the open window, opened the car door, and tried to get into the car and take the keys. At the same time, Nam was choking and hitting Harris.   Harris testified that Nam was trying to put the gearshift into drive.   But Harris managed to keep her foot on the brake and flip the gearshift back into park.   During the attack, she was screaming and yelling for help because she thought he was trying to drive her away.

¶ 5 Nam's attack was, at this point, interrupted when a neighbor, Nathan Clinton, came out of a nearby house saying that he was going to call the police.   Clinton testified that he saw a man and a woman struggling in the car, but he could not tell if the man was trying to push the woman in the car or pull her out.   When talking to 911, however, he told the dispatcher that the man had been trying to pull her out of the car.   In any case, as Clinton was yelling to his wife, the man got out the car, cursing and walked away.   But Clinton could not remember the man's face.

¶ 6 Harris also testified that Nam robbed her during the attack taking her purse which had been next to her in the passenger seat of the car.   When Nam was getting out of Harris's car after assaulting her, he reached behind her, grabbed something, and then got out.   Only after the attack did she realize that her purse, which contained her cell phone, money, and license was missing.

¶ 7 During the trial, the court allowed the State to present evidence from the deputy who responded to Clinton's 911 call. The trial court reasoned that Harris's statements to the deputy were excited utterances.   The deputy reported that Harris was bleeding from the nose and ear.   Harris told the officer that she was afraid that Nam was trying to take her away in the car.

¶ 8 The State charged Nam with one count of first degree robbery and one count of attempted first degree kidnapping  and alleged domestic violence in both counts.   The trial began on June 13, 2005.

¶ 9 At trial, the court admitted several pieces of evidence over defense objections.   It allowed Harris to testify about an incident in which Nam may have taken her car.   On February 27, 2004, the day that she asked Nam to leave, Harris noticed that her car was missing while she was at work.   She later discovered the car parked in front of an apartment building in Olympia.   She also testified that Nam's friends lived down the street from this building.   The trial court ruled that this testimony was relevant to give context to Harris's testimony.   The court also found it was relevant to her mental state and to the defendant's intent as it was part of a sequence of events leading to the March 6 assault.   The State presented no other evidence linking Nam to the disappearance of Harris's car.

¶ 10 The State also introduced several phone calls Nam made from the jail to his sister and an unidentified man in January 2005 as evidence of Nam's consciousness of guilt.   Nam made the calls on January 13, 14, and 19, 2005.   In these phone calls, Nam acknowledged that if Harris testified, he was going to lose the case.   He also encouraged his sister to write down Harris's license plate number and that he would “send someone to deal with her or get rid of her.”   CP at 134.   He also suggested that his sister try to talk Harris out of testifying by reminding her that it would take him away from his son.

¶ 11 In addition, the State introduced a no-contact order dated January 15, 2005, to show that Harris was afraid of Nam and that Nam was trying to contact her against her will.   The trial court admitted the no-contact order as relevant to the victim's state of mind.

¶ 12 In addition to these evidentiary rulings, the trial court denied Nam's request to give an unlawful restraint instruction as a lesser-included offense of attempted kidnapping.   The trial court also gave the State's proposed instruction defining robbery as taking personal property from the victim's person.   The State omitted the statutory  language criminalizing taking personal property in a victim's presence.   Nevertheless, the jury convicted Nam on both the attempted first degree kidnapping and the first degree robbery charge.

ANALYSIS

I. Insufficient Evidence for Robbery Conviction

 ¶ 13 Nam contends that the State assumed the burden of proving that he took personal property from Harris's person but that the evidence only proves that he took her purse in her presence.   The State candidly admits that under the law of the case doctrine it was required to prove that Nam took something from Harris's person but argues that “person” in the statute can extend to a purse on a passenger seat next to a robbery victim.  RCW 9A.56.190. We reject the State's contention and hold that there was insufficient evidence to support Nam's robbery conviction.

 ¶ 14 Because the State's evidentiary burden was to prove all elements of a crime beyond a reasonable doubt, we must first look to what elements the State had to prove in order to determine if the evidence is sufficient.   We review statutory interpretation questions de novo.  State v. Swecker, 154 Wash.2d 660, 665, 115 P.3d 297 (2005).   When interpreting a statute, our primary objective is to carry out the legislature's intent.  State v. Young, 125 Wash.2d 688, 694, 888 P.2d 142 (1995).   To determine intent, we first look to the statute's language.  Young, 125 Wash.2d at 694, 888 P.2d 142.   While the court may not look beyond unambiguous statutory language, the court must read the statute as a whole and harmonize each provision.  State v. Thorne, 129 Wash.2d 736, 761, 921 P.2d 514 (1996).   In harmonizing provisions, we give meaning to every word the legislature includes in a statute so as to avoid rendering any included words superfluous.  State v. Cooper, 156 Wash.2d 475, 483, 128 P.3d 1234 (2006).

¶ 15 Under the criminal statutes, a defendant may be found guilty of robbery where the State proves he “takes  personal property from the person of another or in [her] presence against [her] will by the use or threatened use of immediate force.”  RCW 9A.56.190 (emphasis added).   The statute thus defines robbery to include two alternatives:  taking from a victim's person or taking property in a victim's presence.

 ¶ 16 Personal property is within a victim's presence when it is “within [the victim's] reach, inspection, observation or control, that [she] could, if not overcome with violence or prevented by fear, retain [her] possession of it.”  State v. Manchester, 57 Wash.App. 765, 768-69, 790 P.2d 217 (1990) (quoting C. Torcia, Wharton on Criminal Law § 473 (14th ed.1981)), review denied, 115 Wash.2d 1019, 802 P.2d 126 (1990).

¶ 17 The parties did not cite, and our review did not disclose, a Washington case defining when something is taken from another's “person” in the context of the robbery statute.   The literal interpretation of taking something from another's person would be to take something on the person's body or directly attached to someone's physical body or clothing.   That is consistent with one legal scholar's definition.   3 Wayne R. LaFave, Substantive Criminal Law § 20.3 at 179 (2nd ed.   2003) (“Property is on the victim's person if it is in [her] hand, the pocket of the clothing [she] wears, or is otherwise attached to [her] body or [her] clothing.”)

¶ 18 The State urges us to reject this plain definition and interpret “person” to include objects that a person constructively possesses “within the easy reach.”   Br. of Resp't at 12.   To support its position, the State cites to State v. Valdobinos, 122 Wash.2d 270, 282, 858 P.2d 199 (1993), in which the court interpreted the statutory enhancement for being armed during the commission of a felony.   Our Supreme Court interpreted “armed” to mean “when a weapon is easily accessible and readily available for use.”  Valdobinos, 122 Wash.2d at 282, 858 P.2d 199.

¶ 19 The problem with the State's proposed interpretation is that it would render the language “or in [her]  presence” superfluous.   As indicated above, the presence language already includes taking property within the victim's reach.  Manchester, 57 Wash.App. at 768, 790 P.2d 217.   If the legislature intended “person” to include objects within easy reach, it would not have had to include the language about presence.   Because we avoid rendering statutory language superfluous, we follow LaFave's definition in holding that there is no ambiguity in the statutory language and that “person” in our robbery statute means something on or attached to a person's body or clothing.   This definition gives meaning to both terms.

¶ 20 The State argues that the terms “person” and “presence” are not mutually exclusive.   Br of Resp't at 11.   For support, it cites State v. Grant, 77 Wash.2d 47, 50, 459 P.2d 639 (1969).   In Grant, our Supreme Court reasoned that “[w]hile personal property may be taken from the victim's presence without being taken from his person, it cannot be taken from his person without begin taken in his presence.”  Grant, 77 Wash.2d at 50, 459 P.2d 639.

¶ 21 But even if there is overlap between the two terms, the Grant court defined that overlap in only one direction.   The language in the prohibiting taking something from a victim's presence may cover the situation in which something is taken from a victim's person.  Grant, 77 Wash.2d at 50, 459 P.2d 639.   But this does not mean the opposite is true.   While a general term, like presence, may overlap somewhat with the more specific language, “from the person of another,” they are not equivalent terms.   Therefore, Grant does not compel us to accept the State's assertion that we should interpret from “the person of another” broadly.  RCW 9A.56.190.

¶ 22 We note that this will only matter where the State voluntarily elects to omit the “presence” language in the charging document or instructions.  RCW 9A.56.190. In that circumstance, the State assumes the burden of proving the elements as instructed or charged.  State v. Hickman, 135 Wash.2d 97, 101-02, 954 P.2d 900 (1998).

 ¶ 23 Here, the instructions the State proposed required it to prove that “on or about the 6th day of March, 2004, the defendant unlawfully took personal property from the person of another.”   CP at 104.   Thus, this case falls within the category of cases where the distinction between person and presence will matter.   Applying the correct definition of “from the person of another,” we must therefore determine if the State produced sufficient evidence to support a jury verdict that Nam took personal property that was on or attached to Harris's person.

 ¶ 24 We review a challenge of the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.  State v. Green, 94 Wash.2d 216, 220-22, 616 P.2d 628 (1980).   When the sufficiency of evidence is challenged in a criminal case, we resolve all reasonable inferences from the evidence in favor of the State and interpret them most strongly against the defendant.  State v. Partin, 88 Wash.2d 899, 906-07, 567 P.2d 1136 (1977).

¶ 25 Even interpreting the evidence most strongly against Nam, the State failed to introduce sufficient evidence to prove that Nam took personal property from Harris's person.   Harris testified that she had her purse sitting next to her on the passenger seat.   After Nam assaulted her, he reached behind her and took something.   No evidence suggests that the purse was attached to Harris at any point during the encounter.   She did not testify, for example, that she was holding the purse or that its strap was over her shoulder.   Accordingly, the State did not prove that Nam took the purse from Harris's person.

 ¶ 26 Where the State assumes the burden of proof on an element and we find that there is insufficient evidence on that element, we must reverse the conviction and dismiss with prejudice.  Hickman, 135 Wash.2d at 103, 954 P.2d 900.   Therefore, we reverse the robbery conviction and the trial court must enter an order dismissing with prejudice.

¶ 27 Reversed as to the attempted first degree kidnapping count and remanded for a new trial.

¶ 28 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

¶ 29 Nam next challenges a series of trial court evidentiary rulings and the trial court's decision not to give a lesser-included instruction for the attempted kidnapping charge.   We hold that the trial court erred when it limited Nam's cross-examination of the victim's potential bias.   This error necessitates a new trial, but we also hold that the trial court erred in admitting evidence of a no-contact order against Nam and in admitting evidence suggesting that Nam previously stole Harris's car. We hold that if these errors did not individually require reversal, their cumulative prejudicial effect denied Nam a fair trial.

¶ 30 Because on retrial Nam's remaining arguments may reoccur, we hold the trial court properly admitted evidence of Nam's consciousness of guilt.   And we affirm the trial court's refusal to give an unlawful restraint instruction as a lesser-included offense of attempted kidnapping.

II. Cross-Examination

¶ 31 Nam contends that the trial court erred by limiting his cross-examination of the victim.   Specifically, the trial court sustained the State's hearsay objection when Nam attempted to ask Harris if she had told Nam's sister-in-law that she “[was] willing to do anything to make sure [Nam] went to jail.”   2 RP at 188.   The State argued that what Harris said to Nam's sister was an out-of-court statement being offered for the proof of the matter asserted.   The trial court agreed and sustained the objection, ruling, “[t]he statement is hearsay, and I don't believe there is a proper basis for it.”   2 RP at 189.

¶ 32 We review the trial court's admission or exclusion of evidence for abuse of discretion.  State v. Pirtle, 127 Wash.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996).   A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.  State v. Perrett, 86 Wash.App. 312, 319, 936 P.2d 426, review denied, 133 Wash.2d 1019, 948 P.2d 387 (1997).   The appellant bears the burden of proving abuse of discretion.   State v. Hentz, 32 Wash.App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wash.2d 538, 663 P.2d 476 (1983).   And we may affirm on any ground the record adequately supports even if the trial court did not consider that ground.  State v. Costich, 152 Wash.2d 463, 477, 98 P.3d 795 (2004).

¶ 33 We begin by examining whether the trial court correctly determined that the offered testimony was hearsay.   Hearsay is an out-of-court statement offered for the truth of the matter asserted and may not be admitted unless it fits within a hearsay exception.  ER 801, 802.   Harris's statement to Nam's sister is an out-of-court statement, so our analysis turns on whether Nam was offering the evidence for the truth of the matter asserted.

¶ 34 Nam argues, as he did before the trial court, that Harris's statement was not offered for the truth of the matter asserted and, therefore, was not hearsay.   The State argues that it was only relevant if true-that Harris would do anything to put Nam in jail.   We disagree with the State because this statement exposes the witness's bias.   The statement is relevant, independent of whether it is true.

¶ 35 Nam was not offering Harris's statement for the truth of the matter asserted-that she would actually do anything to put Nam behind bars.   Nam was offering the statement to show that Harris bore ill will toward Nam and was therefore a biased witness.   Even if Harris was actually lying when she told Nam's sister that she would do anything, the statement would be relevant to show that she was biased against Nam. A person would not make such a threat absent bias.   Thus, because the statement is relevant even if untrue, it was not being offered for a hearsay purpose and should have been admitted.

¶ 36 We hold it was an abuse of discretion for the trial court to exclude relevant evidence of bias.   Nam has a constitutional right to present bias testimony.  State v. Spencer, 111 Wash.App. 401, 408, 45 P.3d 209 (2002) (citing Davis v. Alaska, 415 U.S. 308, 316-18, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)), review denied, 148 Wash.2d 1009, 62 P.3d 889 (2003).   The defendant may even establish the chief prosecution's bias by independent witnesses and extraneous evidence.  Spencer, 111 Wash.App. at 408, 45 P.3d 209. Thus, had Nam wished, he could have introduced that statement through his sister.

¶ 37 We hold that the trial court erred and turn to whether the error was prejudicial.   When the trial court improperly excludes bias evidence, it is an error of constitutional magnitude.  State v. Johnson, 90 Wash.App. 54, 69, 950 P.2d 981 (1998).   We presume constitutional errors are prejudicial and the State must prove that the error was harmless beyond a reasonable doubt.   State v. Guloy, 104 Wash.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986).   To determine if a constitutional error is harmless, we look at the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt.  Guloy, 104 Wash.2d at 426, 705 P.2d 1182;  State v. Davis, 154 Wash.2d 291, 305, 111 P.3d 844 (2005), aff'd, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).

¶ 38 Here, the State's attempted kidnapping charge turns entirely on Harris's credibility.   The only testimony indicating that Nam was trying to drive away with Harris comes from Harris herself.   Clinton, the neighbor, testified that he could not tell whether Nam was trying to pull Harris out of the car or push her in and drive away.   Thus, without Harris's testimony, there is not overwhelming evidence of guilt.

¶ 39 But because Harris's testimony was tainted, the State may not rely on it to prove that the error in excluding evidence of her bias was harmful.   Ultimately, we do not know how profound an impact the testimony would have had and because the State bears the burden of showing overwhelming evidence of guilt, this error was prejudicial.   And on the basis of this error, we must reverse the attempted kidnapping conviction.   But we hold that there is sufficient evidence to warrant retrial.

III. Cumulative Error

¶ 40 Although preventing Nam from exploring Harris's bias was prejudicial and warrants retrial, we address her remaining arguments because they may arise on retrial.   We also note that the cumulative effect of the errors in this trial would require a retrial in any case.

A. No-Contact Order

¶ 41 Nam contends that the trial court erred by admitting a no-contact order from January 2005, as evidence for a crime that took place 10 months before in March 2004.   He argues that this no-contact order was irrelevant to the crimes with which he was charged.   We agree.

¶ 42 Generally, all relevant evidence is admissible.  ER 402.   And evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable.”  ER 401.   Even if the evidence is relevant, a trial court may still exclude it if the danger of undue prejudice substantially outweighs its probative value.  ER 403;  State v. Norlin, 134 Wash.2d 570, 583-84, 951 P.2d 1131 (1998).   We accord a trial court's determination of relevance a great deal of deference and will overturn it only for a manifest abuse of discretion.  State v. Vreen, 143 Wash.2d 923, 932, 26 P.3d 236 (2001).

¶ 43 Here, the State offered the no-contact order from 10 months after the attack to show that Nam intended to inflict emotional distress;  to rebut Nam's argument that Harris lied about having a no-contact order on March 6, 2004;  and to show that Nam was violating the law when he was attempting to contact Harris to get her to change her testimony.   The trial court found that the order was relevant to the victim's state of mind.

¶ 44 But the trial court abused its discretion in admitting the no-contact order as relevant to the attempted kidnapping.   Even assuming that the no-contact order was relevant to show that the victim was scared of Nam, the victim's state of mind in January 2005, some 10 months after the attack, is not a fact of consequence to this action.   It is irrelevant to whether Nam intended to kidnap her on March 6, 2004, which is the issue in this case.

¶ 45 It is also irrelevant to rehabilitate Harris's testimony that she lied about having a no-contact order on March 6, 2004.   Harris admitted that she lied about having a no-contact order. If she had been in the process of getting an order, it might be relevant to show that the lie was minimal.   But that she eventually got a no-contact order almost a year later doesn't make it any more or less likely that she was lying on March 6, 2004.   It is simply irrelevant evidence.

¶ 46 Nor are we convinced by the State's argument that the no-contact order was necessary to give context to Nam's phone calls from jail.   The relevance of those phone calls was in revealing Nam's consciousness of guilt.   That the threats may have prompted Harris to get a no-contact order does not reveal anything about Nam's state of mind.   Therefore, the no-contact order is not relevant on these grounds either.

¶ 47 Moreover, the danger of undue prejudice from the no-contact order was very high.   As the State argued before the trial court, and as it argues now on appeal, the no-contact order does prove that Nam was violating the law when he asked his sister to contact Harris and talk her out of testifying.   Thus, the no-contact order was evidence of an uncharged crime.   And our Supreme Court has noted that uncharged offenses have an inherent prejudicial effect and may only be admitted if they have substantial probative value.  State v. Lough, 125 Wash.2d 847, 863, 889 P.2d 487 (1995).   And its effect is in allowing the jury to conclude that Nam was dangerous enough to merit a protective order prohibiting his conduct. As we have indicated, the no-contact order had no relevant probative value in this case and therefore it was an error to admit it.

B. Prior Bad Act

¶ 48 Nam next contends that the trial court erred in admitting evidence suggesting that he took Harris's car eight days before the attack.   He argues that the trial court should have excluded the evidence under ER 404(b) because it was evidence of a prior bad act.   The State argues that prior theft was relevant to show that Nam “had a particular motive to take [Harris]'s property in order to demonstrate his power over her.”   Br. of Resp't at 20.   The State also argued that it was relevant to Nam's intent and that it showed he had a common scheme to intimidate her.   We hold that the trial court should have excluded the evidence under ER 404(b).

¶ 49 We review a trial court's ER 404(b) determinations for abuse of discretion.  State v. Powell, 126 Wash.2d 244, 258, 893 P.2d 615 (1995).   Under ER 404(b), evidence of prior bad acts is presumptively inadmissible to prove character in order to show conformity with them.  ER 404(b);  State v. Kilgore, 147 Wash.2d 288, 291-92, 53 P.3d 974 (2002).   But such evidence may be admissible for other purposes such as proof of motive or intent.  ER 404(b);  Kilgore, 147 Wash.2d at 292, 53 P.3d 974.   In order to admit evidence of previous bad acts, the trial court must (1) find by a preponderance of the evidence that the uncharged acts probably occurred before admitting the evidence, (2) identify the purpose for admitting the evidence, (3) find the evidence materially relevant to that purpose, and (4) balance the probative value of the evidence against any unfair prejudicial effect.  Kilgore, 147 Wash.2d at 292, 53 P.3d 974.

¶ 50 Where the trial court does not conduct an explicit ER 404(b) balancing on the record, the reviewing court may make those determinations based on the entire record.  State v. McGhee, 57 Wash.App. 457, 460, 788 P.2d 603, review denied, 115 Wash.2d 1013, 797 P.2d 513 (1990);  see also Norlin, 134 Wash.2d at 582, 951 P.2d 1131 (examining the record to determine if the evidence established a connection between the defendant and the prior bad acts).   In doubtful cases, the evidence should be excluded.  State v. Thang, 145 Wash.2d 630, 642, 41 P.3d 1159 (2002).   The trial court failed to make an explicit finding that the incident occurred before it admitted the evidence.   Thus, we are left to make that determination based on the record.   See McGhee, 57 Wash.App. at 460, 788 P.2d 603.

¶ 51 Nam makes two arguments.   First, he suggests that the evidence does not establish by a preponderance that Nam took or participated in taking Harris's car.   Second, he argues that the evidence is not relevant to a purpose other than propensity.   Both of his arguments have merit.

¶ 52 Harris's testimony establishes that Nam and Harris had a fight before Harris left for work.   She told him that he had to leave the house, and Nam said he would not leave and pushed her down. Harris left the house and drove to work, and when she took a cigarette break, she noticed her car was missing.   She found the car three days later close to an apartment where Nam's friends lived.

¶ 53 This does not establish, by a preponderance of the evidence, that Nam took Harris's car.   The State introduced no evidence that Nam admitted the theft;  that his fingerprints were on the car;  that he took anything from the car;  or that anyone saw him take it.   Nor did the State produce evidence to indicate that Nam had a key to the car or that the car's ignition was damaged.   And there is no indication that Nam was staying at this particular friend's apartment.   In short, other than circumstance and speculation, there is nothing linking Nam to the car theft.

¶ 54 Even if our deference to the trial court's factual determinations required us to affirm, we also hold that the car theft was not relevant to show Nam's motive and his intent to kidnap and rob 2 Harris and should have been excluded under ER 404(b).  The danger that the jury would use the prior theft as evidence of propensity outweighed its probative value.

¶ 55 Turning to the State's first argument that the prior theft is relevant to show motive, the State fails to explain how Nam's stealing Harris's car would translate to a motive for trying to kidnap her eight days later.   His motive was that he was angry for being kicked out of the house and could not see his child.   He was not angry because he took her car or because she had that particular car.   If anything, that Nam may have taken her car might suggest that he was trying to take her car on March 6, not kidnap her.

¶ 56 Nor is the State clear about how an alleged previous car theft is relevant to his motive to steal a purse from Nam. The State did not introduce evidence that Nam tried to sell Harris's car for money.   And Harris had already given Nam access to another vehicle, so he did not need the car for transportation.   The State's position therefore boils down to arguing that Nam committed this robbery because he stole the car from her before.   And that is an improper purpose.

¶ 57 At most, the State might be correct that Nam's taking the car is evidence that he was really angry about being kicked out of the house.   But given that Nam admitted freely that he was angry, the probative value of this evidence is minor at best.   In fact, in his closing, his attorney argued that Nam was in “an uncontrolled rage.   He's out of control.”   3 RP (June 16, 2005) at 270.   In other words, Nam did not dispute that he had a motive to assault Harris.   His only contention was that he did not intend to kidnap Harris.

¶ 58 In this context, the prejudicial value of the prior bad act outweighs the probative value.   Ultimately, the State is arguing that because Nam stole her car, he was more likely to have committed the robbery or try to kidnap her, i.e., Nam was more likely to have tried to kidnap or rob Harris because he had stolen her car before.   Just because Nam might have taken her car eight days before does not make it more likely that he intended to kidnap her or take her purse.   Thus, the relatively minor probative value of this evidence-that he was angry-does not outweigh the substantial prejudice inherent in ER 404(b) evidence.  Lough, 125 Wash.2d at 863, 889 P.2d 487.   The trial court abused its discretion in admitting the evidence.

¶ 59 The State attempts to save this evidence by arguing that the prior theft was part of a common scheme or plan to intimidate and control Harris.   Evidence of prior bad acts may be admitted to prove a common scheme or plan.  Lough, 125 Wash.2d at 852, 889 P.2d 487.   Our Supreme Court has recently distinguished two types of evidence admissible under this theory.   The first type, which is relevant here, is that a prior act may be admissible when there are multiple crimes that constitute parts of a larger, overarching criminal plan in which the prior acts are casually related to the crime charged.  State v. DeVincentis, 150 Wash.2d 11, 19, 74 P.3d 119 (2003).   The court gave an example of a prior theft of a tool used to commit the charged crime.  DeVincentis, 150 Wash.2d at 19, 74 P.3d 119.

¶ 60 The flaw in the State's argument here is that there is no suggestion that the prior theft was casually related to either the attempted kidnapping or the robbery charge.   Nam did not take Harris's car so that he could later take her purse or kidnap her.   Accordingly, we hold that this prior theft was not admissible to show a common scheme and should have been excluded under ER 404(b).

¶ 61 To the extent that the State suggests that the evidence was admissible to give context to the March 6 attack, we interpret this as an argument that the trial court properly admitted the prior theft under res gestae doctrine.   Under the res gestae doctrine, the court may admit other bad acts “ ‘to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.’ ”  Powell, 126 Wash.2d at 263, 893 P.2d 615 (quoting State v. Tharp, 27 Wash.App. 198, 204, 616 P.2d 693 (1980), aff'd, 96 Wash.2d 591, 637 P.2d 961 (1981)).   But the theft the State wishes to introduce was not a happening near in either time or place. The alleged theft took place more than a week before, and that is too remote to invoke res gestae.   In Powell, for example, the court used this reasoning to admit incidents from the night before and the day of the victim's death.  Powell, 126 Wash.2d at 263-64, 893 P.2d 615.

¶ 62 We acknowledge that in domestic violence cases, Washington courts often admit evidence of prior assaults and violence in the relationship.   See e.g. State v. Grant, 83 Wash.App. 98, 106-08, 920 P.2d 609 (1996) (reasoning that prior assaults were relevant to explain the victim's inconsistent actions and her delay in reporting).   But this is not carte blanche to introduce evidence of prior bad acts in a domestic violence situation.   As the Grant court explained, the previous assaults were admissible in that case to explain why the victim gave inconsistent stories to the police or to explain the inconsistent actions of a domestic violence victim.  Grant, 83 Wash.App. at 106-107, 920 P.2d 609.   In other words, there was a specific reason other than demonstrating a pattern of conduct.   That is not the case here.   Harris did not tell inconsistent stories about this event.   The prior theft was not necessary to explain the domestic relationship or why Nam was not able to see his child.   Therefore, the trial court erred in admitting it.

C. Prejudice

¶ 63 Under the cumulative error doctrine, a defendant may be entitled to a new trial when errors, even though individually not reversible errors, cumulatively produced a trial that was fundamentally unfair.  State v. Greiff, 141 Wash.2d 910, 929, 10 P.3d 390 (2000);  In re Pers. Restraint of Lord, 123 Wash.2d 296, 332, 868 P.2d 835, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994).   The defendant bears the burden of proving an accumulation of errors that would make a retrial necessary.  Lord, 123 Wash.2d at 332, 868 P.2d 835.

¶ 64 Here, there were as many as three evidentiary errors.   The trial court improperly excluded evidence that Harris was biased against him, an error affecting a constitutional right.   The trial court improperly admitted evidence of a restraining order issued 10 months after the charged crime, and the trial court admitted evidence of an irrelevant prior bad act.

¶ 65 Taken together, the impact of these three errors was significant.   The jury may have given the victim undue credibility and assigned undue weight to Nam's apparent disposition toward threatening and stealing from Harris.   Because the only issue in the attempted kidnapping case was whether Nam intended to kidnap Harris, and two of the errors go toward Nam's character, while the other undermines the credibility of State's key witness, it is reasonably possible that had the trial occurred without these three errors, Nam might not have been convicted of attempted first degree kidnapping.   We would reverse on this basis, even if we did not hold that reversal is required on the error affecting a constitutional right.

IV. Remaining Arguments

¶ 66 Because Nam may raise these issues at retrial, we also address Nam's remaining argument in this appeal.   We hold the trial court properly admitted evidence of Nam's consciousness of guilt, and that the trial court properly denied Nam's request for a lesser-included offense.

A. Consciousness of Guilt

¶ 67 Washington courts consistently admit evidence that a defendant has threatened or tried to prevent a witness from testifying at trial as evidence of consciousness of guilt.   See, e.g., State v. Moran, 119 Wash.App. 197, 218, 81 P.3d 122 (2003), review denied, 151 Wash.2d 1032, 95 P.3d 351 (2004).   As our Supreme Court explained,

Conduct on the part of an accused person ․ having for its purpose the prevention of witnesses appearing and testifying at his trial, is a circumstance for the jury to consider as not being likely to be the conduct of one who was conscious of his innocence, or that his cause lacks truth and honesty, or as tending to show an indirect admission of guilt.

State v. Kosanke, 23 Wash.2d 211, 215, 160 P.2d 541 (1945).   Our courts have determined that the probative value of such indirect admissions outweighs the unfair prejudice they may cause.  Moran, 119 Wash.App. at 218, 81 P.3d 122.   On this theory, Division One admitted evidence that a defendant called a witness a snitch, and drew his finger across his throat.  McGhee, 57 Wash.App. at 462, 788 P.2d 603.

¶ 68 Here, in a series of phone calls to his sister and an unnamed friend, Nam acknowledged that if Harris testified, he was going to lose the case.   He admitted, for example, that if Harris testified, “I'm fucked.”   CP at 132.   A reasonable trier of fact could infer from that statement that he was admitting his guilt, i.e., he knew he committed the crime that he faced conviction if she told the truth.

¶ 69 But more than that, Nam also appeared to plan to remove Harris as a witness.   He told his sister to write down Harris's license plate number and that he would “send someone to deal with her or get rid of her.”   CP at 134.   Although, as Nam points out, this threat was not directly communicated to Harris, that he made such plans indicates his consciousness of guilt.   Moreover, if that more nefarious method failed, he also suggested that his sister try to talk Harris out of testifying by reminding her that it would take him away from his son.

¶ 70 Nam's conduct in these phone calls falls within conduct “having for its purpose the prevention of witnesses appearing and testifying at his trial.”   Kosanke, 23 Wash.2d at 215, 160 P.2d 541.   Therefore, the trial court properly admitted it as consciousness of guilt.

B. Lesser Included Instruction

¶ 71 Nam's last argument is that the trial court erred when it refused to give an instruction on unlawful restraint as a lesser-included offense of attempted kidnapping.   A defendant is entitled to a lesser-included-offense instruction when the elements of the lesser offense are necessary elements of the offense charged and the evidence supports an inference that the lesser offense was committed.  State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978).   The State argues that the elements of unlawful restraint are not necessary elements of attempted kidnapping.   Again, we address this issue because it may arise in a retrial.

¶ 72 We review alleged errors in a trial court's jury instructions de novo.  State v. Porter, 150 Wash.2d 732, 735, 82 P.3d 234 (2004).   And we apply the Workman test to determine whether a lesser offense is included within the charged offense.  Porter, 150 Wash.2d at 736, 82 P.3d 234.   The first prong of this test, the legal prong, requires us to determine if it is possible to commit the greater offense without having committed the lesser offense.  Porter, 150 Wash.2d at 736, 82 P.3d 234.   Our Supreme Court has also described this portion of the test to request that the elements of the lesser offense must be necessarily and invariably included among the elements of the greater charged offense.  Porter, 150 Wash.2d at 736-37, 82 P.3d 234.   The second prong, the factual prong, requires that the evidence “raise an inference that only the lesser included ․ offense was committed to the exclusion of the charged offense.”  State v. Fernandez-Medina, 141 Wash.2d 448, 455, 6 P.3d 1150 (2000).

¶ 73 Nam's argument here fails on the legal prong.   A person commits the crime of unlawful restraint when he (1) knowingly (2) restrains (3) another person.   RCW 9A.40.040. But, as the State points out, these elements are not necessarily or invariably elements of attempted first degree kidnapping.   A person commits attempted first degree kidnapping, if (1) with the intent to commit first degree kidnapping, he takes a(2) substantial step toward the completion of that crime.  RCW 9A.28.020. And the State is correct that a person can take a substantial step, such as lying in wait, toward first degree kidnapping without restraining anyone.   Thus, the elements of unlawful restraint are not a necessary part of attempted first degree kidnapping.

¶ 74 This result is in line with Washington cases holding that substantive crimes are generally not lesser-included offenses of attempted crimes.   For example, first degree assault is not a lesser-included offense of attempted first degree murder.  State v. Harris, 121 Wash.2d 317, 321, 849 P.2d 1216 (1993).   In Harris, our Supreme Court explained that because an attempt may be completed when an offender takes a substantial step, it is possible that a person could commit attempted murder without ever committing assault. Harris, 121 Wash.2d at 321, 849 P.2d 1216.

¶ 75 The same reasoning controls here.   Because it is possible that one could attempt to commit first degree kidnapping without actually restraining anyone, the legal prong is not met.   Unlawful restraint is not a lesser-included offense of attempted first degree kidnapping.   Thus, the trial court did not err in refusing to give Nam's proposed unlawful restraint instructions. 3

¶ 76 Reversed as to the first degree robbery count and remanded for the trial court to enter an order of dismissal with prejudice.

¶ 77 Reversed as to the attempted first degree kidnapping count and remanded for a new trial.

FOOTNOTES

1.   We note in the record that the defendant's name is spelled two different ways.   Chamrouem Nam and Chamroeum Nam. For the purposes of this opinion, we use the Chamroeum spelling.

2.   We direct our comments to both charges as tried in order to review cumulative error, even though on retrial no argument could be made for a motive for robbery because of our reversal of that count.

3.   Because we reverse both convictions, we do not address Nam's sentencing issues.

BRIDGEWATER, P.J.