KULIK, J.
Anthony A. Bradshaw was convicted of felony harassment as the result of a dispute over a parking space. On appeal, Mr. Bradshaw contends the court abused its discretion by admitting statements he made to police after his arrest on an unrelated crime. We hold the court properly admitted Mr. Bradshaw's statements under ER 404(b) to show intent. We affirm.
FACTS
Theresa Wilson lived in a duplex that was separated from the adjoining unit by a common driveway. On December 13, 2004, Ms. Wilson arrived home to find that a vehicle was parked in her parking space. Ms. Wilson testified that she had had problems in the past with her neighbors parking in her space. Ms. Wilson parked her car behind the car in her space and called her son, Brandon Wilson, who lived nearby.
Accompanied by her son, Ms. Wilson went next door to ask that the vehicle be removed. Her neighbor, Scott Crafton, answered the door, apologized for the car being parked in the wrong space, and called Anthony Bradshaw, a visitor, to move his car. According to Ms. Wilson, she had asked Mr. Bradshaw to move his car on other occasions. Mr. Crafton testified that Ms. Wilson was really upset, and that she followed Mr. Bradshaw and yelled at him. Mr. Crafton also testified that Ms. Wilson appeared intoxicated and slurred her words.
Mr. Wilson testified that he heard Mr. Bradshaw call Ms. Wilson a "bitch," and state: "if you don't get up on out of my face, I will fuck you up." Report of Proceedings (RP) at 56. Ms. Wilson heard Mr. Bradshaw state: "I am going to fuck you up, bitch." RP at 42-43.
Mr. Wilson stepped between his mother and Mr. Bradshaw. Mr. Wilson then escorted his mother toward their porch and tried to calm her down. When Mr. Wilson turned around, he was face-to-face with Mr. Bradshaw. According to Mr. Wilson, Mr. Bradshaw told him to back off and Mr. Bradshaw stated: "You don't know me, or, You don't know who I am, I will fucking kill you." RP at 57. Mr. Bradshaw flailed his arms and pulled up his shirt; Mr. Wilson saw something shiny and silver with what looked like a black handle in Mr. Bradshaw's waistline.
Mr. Wilson took Mr. Bradshaw's threat seriously and went to his mother's house to call 911. When Mr. Wilson returned from calling 911, he saw Mr. Bradshaw pull his car around Ms. Wilson's car and leave.
At approximately 5:36 p.m., Deputy Joseph Bonin received a radio call that a person with a weapon had left the area of 32nd and University. The deputy was then located a half mile from 16th and University. Deputy Bonin drove to 16th and University and saw a car matching the description on the radio call. The deputy stopped the vehicle and contacted the driver, Mr. Bradshaw, who was subsequently placed under arrest for failure to produce a valid driver's license.
Deputy Bonin testified that Mr. Bradshaw became visibly upset and stated that he was being arrested because he was black. Deputy Bonin testified that Mr. Bradshaw stated that he would kill the deputy and his family. According to Deputy Bonin, Mr. Bradshaw continued to make general threats toward the deputy, and then toward two other deputies when they arrived. No weapon was found on Mr. Bradshaw's person.
Prior to trial, Mr. Bradshaw asked the court to suppress Deputy Bonin's testimony. The motion was denied. The judge found Mr. Bradshaw guilty of felony harassment. He appeals.
ANALYSIS
This court reviews the interpretation of a rule of evidence de novo, as a question of law. See State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). If the evidence rule was correctly interpreted, the admissibility of the evidence lies within the discretion of the trial court and the court's decision will not be disturbed absent an abuse of discretion. State v. Hamlet, 133 Wn.2d 314, 324, 944 P.2d 1026 (1997). An abuse of discretion occurs when a decision is based on unreasonable or untenable grounds or reasons. State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997). The erroneous admission of evidence is not grounds for reversal "unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred." State v. Tharp, 96 Wn.2d 591, 599, 637 P.2d 961 (1981).
Mr. Bradshaw was convicted of felony harassment under RCW 9A.46.020(2)(b). Felony harassment requires that the defendant, without lawful authority, knowingly threaten to kill the person threatened or any other person. Mr. Bradshaw denied that he threatened to kill anyone.
ER 404(b) reads as follows:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
ER 404(b) applies to prior "crimes, wrongs, or acts." ER 404(b) analysis applies to a defendant's verbal threats against a witness. See State v. Trickler, 106 Wn. App. 727, 734, 25 P.3d 445 (2001).
When the State seeks the admission of evidence under ER 404(b) to show that the defendant had committed misconduct other than the crimes charged, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred; (2) identify the purpose for which the evidence will be admitted; (3) determine whether the evidence is relevant to prove an element of the crime charged; and (4) weigh the probative value of the evidence against its prejudicial effect. Brown, 132 Wn.2d at 571.
Here, the trial court concluded that the statements Mr. Bradshaw made to Detective Bonin were admissible under ER 404(b) to show intent and lack of mistake.
The trial court concluded that the statements were admissible to prove intent. Felony harassment under RCW 9A.46.020(2)(b), requires proof of intent. Proof of intent for purposes of ER 404(b) encompasses several components, including state of mind. See State v. Powell, 126 Wn.2d 244, 261, 893 P.2d 615 (1995). Prior misconduct may be admitted to prove intent if intent is a material issue in the case. Id. at 262. Consequently, under the facts here, Mr. Bradshaw's statements to the deputies were admissible to show his state of mind.
The statements were not admissible under the theory of mistake. The theory of mistake is applicable only if the defendant actually maintains that the charged crime was a mistake or that he or she was acting in good faith. 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice, § 404.21, at 442 (4th ed. 1999) (citing State v. Dewey, 93 Wn. App. 50, 966 P.2d 414 (1998), overruled on other grounds, State v. DeVincentis, 150 Wn.2d 11, 74 P.3d 119 (2003); State v. Ramirez, 46 Wn. App. 223, 730 P.2d 98 (1986)). Mr. Bradshaw's defense here was a general denial.
Once the court determined that Mr. Bradshaw's statements were admissible, the court had to weigh the probative value of this evidence against its prejudicial effect. These statements were prejudicial. Of the witnesses present the day of the incident, only Mr. Wilson heard Mr. Bradshaw state that he wanted to kill Mr. Wilson. Even Ms. Wilson failed to hear any such statements from Mr. Bradshaw. Under these circumstances, Deputy Bonin's testimony that Mr. Bradshaw threatened him and his family was powerful evidence in the prosecution's favor. But the prejudicial effect of this evidence did not outweigh its probative value to demonstrate Mr. Bradshaw's state of mind.
The court properly admitted Mr. Bradshaw's statements to the deputies.
We find no merit in Mr. Bradshaw's additional alleged errors and therefore affirm his conviction.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Kulik, J.
WE CONCUR:
Sweeney, C.J.
Schultheis, J.