## Facts

- In October 2001, multiple businesses in downtown Bellingham, Washington had windows defaced by acid-etched graffiti.
- The graffiti consisted of three tags: “HYMN,” “GRAVE,” and “SERIES.”
- Police associated “HYMN” with Anthony Espinoza Sanderson and “SERIES” with Lawrence Michael Foxhoven.
- A third person associated with “GRAVE” pleaded guilty; Foxhoven and Sanderson were tried jointly for malicious mischief.
- The State sought to introduce evidence of each defendant’s prior graffiti activity tied to the same tag used in the charged vandalism.
- Foxhoven moved to exclude evidence of prior graffiti history and photographs from his home showing “SERIES” graffiti.
- Sanderson moved to exclude evidence of prior graffiti arrests and items from his home (tag drawings and photographs) showing “HYMN” graffiti and him painting it.
- The trial court admitted the evidence under ER 404(b), reasoning it tended to show common scheme/plan or modus operandi, and found each defendant used a distinctive tag repeatedly as an identifying “vandalism identity.”
- The jury convicted Foxhoven and Sanderson on multiple malicious mischief counts.

## Issues

1. Whether evidence of defendants’ prior graffiti using the same distinctive tags was admissible under ER 404(b) to prove identity through modus operandi rather than propensity.
2. Whether the trial court adequately performed the required ER 404(b) analysis, including identifying a proper purpose and weighing probative value against unfair prejudice.

## Decision

- The Washington Supreme Court affirmed the convictions.
- The court held the prior graffiti evidence was admissible under ER 404(b) to establish identity via modus operandi because identity was the central disputed issue.
- The court concluded the shared tags (“HYMN” and “SERIES”) functioned as sufficiently distinctive “signature” identifiers, despite differences in font or medium.
- The court found the trial court’s ER 404(b) reasoning and findings were sufficient; any procedural shortcomings were, at most, harmless.

## Legal Principles

- ER 404(b) bars other-acts evidence offered to prove character or propensity but permits it for non-propensity purposes, including identity.
- Other-acts evidence is admissible only if the trial court identifies a permissible purpose, determines relevance to a material issue, and weighs probative value against unfair prejudice (and gives a limiting instruction if requested).
- Identity may be proven by modus operandi where prior acts contain sufficiently distinctive features that tend to identify the actor as the person who committed the charged offense.
- Distinctive graffiti tags, supported by evidence that tag usage is exclusive to the tag’s user, may constitute “signature” evidence linking a defendant to charged vandalism.

## Conclusion

The Washington Supreme Court upheld admission of prior graffiti evidence tied to defendants’ distinctive tags because it was used to prove identity through a signature-like modus operandi, not to show propensity, and the trial court did not abuse its discretion under ER 404(b).


State v. Foxhoven, 161 Wn.2d 168, 163 P.3d 786 (Wash. 2007)