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Before admitting Wash. R. Evid. 404(b) evidence, a trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. This analysis must be conducted on the record. If the evidence is admitted, a limiting instruction must be given to the jury.
The graffiti, which was etched with acid onto the windows of a number of downtown businesses, included three different "tags," i.e., a graffiti artist's pseudonym, two of which police concluded were used by defendants. Over objection, the judge admitted evidence that each defendant had used one of the tags on previous occasions. The evidence consisted of photos seized from defendants' homes that depicted graffiti signed with a particular "tag" and of one of the defendants actually painting his own particular tag, as well as both defendants' prior convictions for graffiti offenses. The trial court admitted the evidence as proof of a common scheme or plan and to establish modus operandi but gave a limiting instruction.
Was the evidence properly admitted under Wash. R. Evid. 404(b)?
The court held that the evidence was properly admitted under Wash. R. Evid. 404(b) because the tags were as distinctive as signatures. Differences in font, style, media, and the objects on which the graffiti was placed bore on the weight of the evidence, not its admissibility. Although the trial court erred in admitting the evidence under the common scheme or plan exception to Rule 404(b) because intent was not at issue, the error was harmless.