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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
STATE OF WASHINGTON, Respondent, v. ANDRE L. BONDS, Appellant. Quinn-Brintnall, J. -- A jury found Andre L. Bonds guilty of first degree assault. RCW 9A.36.011(1)(c). In this appeal, Bonds argues that the trial court erroneously admitted gang evidence. He adds that his judgment and sentence contains a scrivener's error. In a pro se statement of additional grounds (SAG),1 Bonds also contends that the evidence was insufficient to prove his intent and motive to commit assault or his infliction of great bodily harm. Finding no reversible error, we affirm but remand for correction of the judgment and sentence. FACTS Late one evening, Bonds went to a Tacoma bar to celebrate a friend's birthday. While there, he greeted Roosevelt Ports, and Ports introduced Bonds to his friend, Tommy Pitts. Bonds UNPUBLISHED OPINION No. 40069-3-II

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RAP 10.10.

No. 40069-3-II saw Ports and Pitts at another bar before ending up at a Denny's restaurant, where he again saw the two men. Pitts and Bonds exchanged words and then blows outside the restaurant. They separated, and Bonds went to his car until his friend, Larry Brown, drove up. Pitts again confronted Bonds in the parking lot and threw the first punch. Bonds hit Pitts in the head and knocked him to the pavement. Bonds then stood over Pitts, who was lying on the ground on his back, and stomped Pitts's head into the pavement. Several customers and employees inside Denny's witnessed the altercation. Bonds left the scene with Brown, and officers responded to the waitress's 911 call. Police and medical aid arrived to find Pitts unconscious, with severe trauma to his right eye socket and a pool of blood under his head. Shoeprints were on his forehead. Pitts was taken to the hospital, where doctors determined that he had suffered serious eye and brain injuries. Detective John Ringer interviewed Bonds following his arrest. Bonds said that Pitts was from "Cali," or California, and had felt "disrespected" when Bonds was unimpressed. 8 Report of Proceedings (RP) at 656, 658. Bonds said that Pitts started the fight after insulting him and that no weapons were involved. Bonds admitted kicking Pitts two or three times. When the detective asked why he "put the boots" to Pitts, Bonds replied that Pitts needed to know where he was from, explaining that he told Pitts, "I'm an original from here. Don't come talking like that." 7 RP at 631. The State charged Bonds with first degree assault. During a CrR 3.5 hearing, Detective Ringer described Bonds's statements to him and explained that the reference to being "an original" meant that Bonds was an "original gangster," or a founder of a Tacoma gang who 2

No. 40069-3-II carried special status in the gang community.2 1 RP at 44. Defense counsel conceded that Bonds's statements were voluntary but sought to exclude them under ER 404(b) and ER 403. The State argued that Bonds's statements were admissible as res gestae evidence and as evidence of motive and intent under ER 404(b). The trial court ruled that Bonds's statements were admissible under ER 404(b) because they were relevant to motive and intent, but the court excluded any evidence about Bonds's gang history and any speculation about what his reference to being "an original" meant. The detective could testify as to the quotations contained in his report, but he could not interpret them. Ten eyewitnesses then testified about the fight between Bonds and Pitts and said that Bonds, the taller of the two by approximately one foot, had stomped Pitts in the head after he fell to the ground. (Bonds is approximately six feet six inches tall and Pitts is approximately five feet six inches tall.) None described Pitts as making any aggressive movement after he fell to the ground; most stated that he lay motionless while Bonds stomped him. A waitress stated that Bonds stomped Pitts in the head more than 10 times. Pitts testified that he could not remember the altercation and that he now has vision and memory problems. One of his doctors testified that Pitts has suffered permanent brain damage. Detective Ringer testified that Bonds told him he kicked Pitts because the latter had insulted him, and the detective repeated Bonds's statement that he was "an original." 7 RP at 631. Bonds admitted that he went to Brown's house after the altercation and wiped the blood from his shoes with a towel. Officers found a bloody towel at Brown's house.

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Rap artist Ice-T coined the phrase "Original Gangster" in 1991. United States v. Cook, 550 F.3d 1292, 1296 n.3 (10th Cir. 2008), cert. denied, 129 S. Ct. 2819 (2009). 3

No. 40069-3-II Bonds testified that Pitts started the fight and that he kicked him in the face three times because he thought Pitts was reaching toward his midsection for a weapon. "I just wanted to do enough so I can get away from him." 11 RP at 1186. He did not remember telling the police that no weapons were involved. The jury found Bonds guilty of first degree assault, and the trial court imposed a midrange sentence of 276 months. Bonds appeals. ANALYSIS Admissibility of "Original" Statement We review the correct interpretation of an evidentiary rule de novo as a question of law. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Once the rule is correctly

interpreted, we review the trial court's decision to admit or exclude evidence for abuse of discretion. DeVincentis, 150 Wn.2d at 17. Bonds argues that the trial court's decision to admit his statement that he was "an original" is reversible error under either standard. Gang evidence is admissible in a criminal trial if there is a nexus between the crime and gang membership. State v. Scott, 151 Wn. App. 520, 521, 213 P.3d 71 (2009), review denied, 168 Wn.2d 1004 (2010). Such evidence is inherently prejudicial, however, and is measured under the standards of ER 404(b). Scott, 151 Wn. App. at 526; see also State v. Asaeli, 150 Wn. App. 543, 579, 208 P.3d 1136 (referring to "inflammatory nature of gang evidence generally"), review denied, 167 Wn.2d 1001 (2009). Evidence of other bad acts is admissible under ER 404(b) when a trial court identifies a significant reason for admitting the evidence and determines that the relevance of the evidence outweighs any prejudicial impact. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995); Scott, 151 Wn. App. at 527. The trial court must balance these interests on 4

No. 40069-3-II the record. Scott, 151 Wn. App. at 527. Bonds sought to exclude evidence of his gang affiliation, including his reference to being "an original." RP (Aug. 10, 2009) at 36. The State responded that his statements were

admissible under ER 404(b) to explain the intent, motivation, and res gestae of the assault. In addition to the "original" statement itself, the State wanted Detective Ringer to explain what it meant. Defense counsel objected to any reference to this statement and suggested this rephrasing: "I'm from Tacoma, you don't bring your California trash talk and talk to me like that." RP (Aug. 10, 2009) at 36. The trial court excluded any explanation of Bonds's statements to Ringer but ruled that the statements themselves were admissible: One, I believe that the State has established by a preponderance of the evidence that the statements in question were made by the defendant and those statements, pursuant to Criminal Rule 3.5, can be used against him at trial. And those statements go to both motive and intent. However, I'm going to preclude any evidence regarding Mr. Bonds' gang history and I'm going to preclude Detective Ringer from speculating about or giving his opinion as to what original means. And I believe that in this case, Mr. Bonds has said enough and it's obvious that he had resentment from Mr. Pitts because Mr. Pitts was mouthing off about being from California or Cali and Mr. Bonds had problems with that and they had problems with each other. But the most important thing is that to allow Detective Ringer to get into the issue of gang affiliation, which is what opening the door to original gangster means, that the probative value of that is outweighed by the potential prejudice because once this is put in the light or the jury believes that this is gang related, it could lead to confusion on the part of the jury and prejudice the defendant and the prejudice outweighs any probative value of the testimony of Detective Ringer's testimony or speculation or opinion about what original means. RP (Aug. 10, 2009) at 41-42. Bonds's statements to the detective spoke for themselves; the court asked the prosecuting attorney "to make it clear to Detective Ringer that when he testifies, he testifies from the words in quotes in the report, no additions, no interpretations, just the straight deal." RP (Aug. 10, 2009) at 43. 5

No. 40069-3-II The State contends that Bonds failed to preserve his challenge to this ruling by failing to object to subsequent testimony concerning his "original" statement. An objection was not

necessary, however, because Bonds had a standing objection after the trial court denied his motion in limine to exclude the statement. See State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995) (losing party is deemed to have standing objection where judge has made final ruling on motion in limine). In justifying the trial court's decision to admit Bonds's "original" statement, the State argues first that it was not gang evidence subject to ER 404(b) because the trial court sanitized it into a pedestrian explanation of why the fight took place. We agree that the statement was not gang evidence subject to ER 404(b), but for different reasons. 1. Res Gestae Exception In addition to the purposes listed in ER 404(b), evidence of other misconduct is admissible as part of the res gestae of the crime if it is so connected in time or place that proof of the misconduct constitutes proof of the history of the crime charged. 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice,

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