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State v. Foxhoven

Supreme Court of Washington, En Banc
163 P.3d 786 (2007)
ELI5:

Rule of Law:

Evidence of a defendant's prior use of a unique graffiti tag is admissible under the modus operandi exception to Evidence Rule 404(b) to prove identity, as such a tag can be so unusual and distinctive as to be like a signature.


Facts:

  • In October 2001, graffiti was etched with acid into the windows of several businesses in downtown Bellingham.
  • The graffiti consisted of three different tags: 'HYMN,' 'GRAVE,' and 'SERIES.'
  • Police investigation determined that petitioner Anthony Sanderson was associated with the tag 'HYMN.'
  • The investigation also determined that petitioner Lawrence Michael Foxhoven was associated with the tag 'SERIES.'
  • A third person, who was not part of the trial, was associated with the 'GRAVE' tag.
  • Evidence collected by police included photographs and drawings from the petitioners' homes showing their prior use of their respective tags.

Procedural Posture:

  • Lawrence Foxhoven and Anthony Sanderson were charged in Whatcom County Superior Court (trial court) with multiple counts of malicious mischief.
  • Before their joint jury trial, both petitioners moved to exclude evidence of their prior graffiti acts under Evidence Rule 404(b).
  • The trial judge denied the motions, ruling the evidence was admissible to show 'modus operandi' or 'common scheme or plan.'
  • The jury found both Foxhoven and Sanderson guilty on multiple counts.
  • The petitioners appealed separately to the Court of Appeals, Division One.
  • The Court of Appeals consolidated the appeals and affirmed the trial court's decision, holding the evidence was properly admitted under the 'modus operandi' exception.
  • Foxhoven and Sanderson then sought and were granted review by the Supreme Court of Washington on the Evidence Rule 404(b) issue.

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Issue:

Does the admission of a defendant's prior use of a specific graffiti tag, to prove their identity as the perpetrator of a crime involving the same tag, violate Evidence Rule 404(b)'s prohibition against using prior bad acts to show conformity therewith?


Opinions:

Majority - Chief Justice Alexander

No. The admission of evidence showing a defendant's prior use of a specific graffiti tag to prove identity does not violate Evidence Rule 404(b). The court reasoned that while ER 404(b) generally prohibits using prior bad acts to prove a person acted in conformity with their character, it permits such evidence for other purposes, such as proving identity via a unique modus operandi. The court held that a modus operandi must be so distinctive as to function like a signature. Based on expert testimony establishing that a graffiti tag is an artist's identity within their subculture and is rarely copied, the court concluded that a tag is the 'equivalent of a signature.' Therefore, evidence of petitioners' prior use of the 'HYMN' and 'SERIES' tags was highly relevant to prove they were the individuals who created the graffiti in the charged offenses. The court noted that differences in style, medium, or font go to the weight the jury should give the evidence, not its admissibility.



Analysis:

This decision clarifies the 'modus operandi' exception to Evidence Rule 404(b) by establishing that a unique moniker, like a graffiti tag, can itself be distinctive enough to function as a signature for the purpose of proving identity. This precedent expands the application of the signature-crime exception beyond the physical methods of a crime to include unique identifiers used by the perpetrator. The ruling may influence how courts treat other unique identifiers in criminal contexts, such as digital handles, hacker aliases, or other pseudonyms, making it easier for prosecutors to introduce evidence of prior acts to establish identity when such a 'signature' is present.

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