PER CURIAM.
Jason Reidt appeals his rape conviction, arguing that the trial court violated his speedy trial rights by extending the trial date and erred in admitting evidence of a prior bad act. Because the trial court extended the trial date based on unavoidable circumstances and because the prior bad acts are admissible for proper purposes, we affirm.
FACTS
On September 2, 1999, two women called the police to report a suspicious man on a bicycle who circled their block three or four times. One woman described him as a white male, wearing a sleeveless white T-shirt and cream- or white-colored pants.
At one point, the man entered their yard, topless, and was moaning with his hand down the front of his pants. His pants were undone and down a little past his waist. After one of the women asked him to leave three times, he stepped away from the house and put on his shirt. He left briefly, but five or ten minutes later, he was again circling the block.
The women notified some neighbors of the situation. After the neighbors informed the man that they had called the police, he left. Meanwhile, the victim in this case (who lived in the same neighborhood) had gone to bed after taking some medication to control her seizures. She was also on some other medication for asthma and for pain related to a recent surgery.
At trial, she testified that these medications made her memory a little cloudy. She remembers, however, that she awoke to a man `stuffing his penis down [her] throat, choking [her].' RP 6/14/2000 at 688. This man then raped her vaginally. RP 6/14/2000 at 691.
When she tried to turn on her light, he knocked it over. After he got off her, however, she got out of bed and quickly turned on the hallway light as the man got dressed. She recalled that the attack occurred before 11 p.m. and described the perpetrator as a white male in his 20s, with medium, chin-length blond hair wearing a white T-shirt and khaki pants. He left her house the same way he came in through her open window. After he left, she called 911 and got dressed before the police arrived. Later, one of the women who earlier had witnessed a suspicious man in her yard drove around the neighborhood looking for him and eventually observed him enter a taxi parking lot. She relayed this information to the police through her roommate. The police apprehended Reidt at the taxi parking lot shortly thereafter. When an officer brought the rape victim to the taxi parking lot to identify whether Reidt was the man who raped her, the victim immediately identified him as the perpetrator.
At trial, the victim and the two women in the neighborhood testified in addition to many police officers who worked on this case. A jury found Reidt guilty of burglary in the first degree and rape in the first degree. Reidt appeals.
DISCUSSION I. Speedy Trial Rights
Reidt first argues that the trial court deprived him of his right to a speedy trial by granting two extensions beyond the trial expiration date of April 18, 2000. Initially, on March 29, 2000, the prosecutor moved for a continuance because his wife was due to give birth on April 12 and he had planned to take two weeks of paternity leave thereafter. After hearing from both sides, the trial court denied the motion because it had found that the prosecutor's office had made the assignment even though the paternity leave was foreseeable. Instead of reassigning the case, the prosecutor canceled his paternity leave. On April 17, however, a representative from the prosecutor's office moved for a continuance because the prosecutor's baby had not arrived as anticipated and was expected anytime. The trial court granted a five-day extension and set the new trial date for April 25. On April 25, the prosecutor's office made another motion for a continuance because the prosecutor's wife and baby had suffered complications from the birth. Based on these complications, the trial court extended the trial date to May 1.
A defendant in custody awaiting trial must have a trial date within 60 days from the date of arraignment. CrR 3.3(c)(1). The trial court may extend the time for trial in increments of up to five business days if there are unavoidable or unforeseen circumstances beyond the control of the court or the parties unless the defendant will be substantially prejudiced in his or her defense by the extension of time. CrR 3.3(d)(8). A prosecutor's illness justifies such an extension. State v. Greene, 49 Wn. App. 49, 55, 742 P.2d 152 (1987).
Also, this court has ruled that a prosecutor's responsibly planned vacation although foreseeable is an unavoidable circumstance if the next most available prosecutor is already in trial. State v. Kelley, 64 Wn. App. 755, 767, 828 P.2d 1106 (1992); cf. State v. Selam, 97 Wn. App. 140, 143, 982 P.2d 679 (1999) (planned vacation of defense counsel), review denied, 140 Wn.2d 1013 (2000); State v. Grilley, 67 Wn. App. 795, 800, 840 P.2d 903 (1992) (planned vacation of investigating officers). We review a court's decision to grant extensions under the abuse of discretion standard. Kelley, 64 Wn. App. at 761.
On April 17, the trial court extended the trial date because the assigned prosecutor's baby had not arrived as anticipated and was expected anytime. Obviously, the State cannot predict the birth of a baby beyond the timing issued by the attending physician. Moreover, according to representations made by the State in an earlier hearing and during trial, the other prosecutors in the sexual assault unit were unavailable to take this case.
Analogous to the cases involving illnesses and vacations, the late arrival of the prosecutor's baby is an unavoidable circumstance beyond the control of the court or the parties. Accordingly, the trial court did not abuse its discretion in granting a five-day extension.
Reidt argues that the State's motion is a `reapplication' under Local Rule 7(b)(5) because it made the same motion earlier unsuccessfully. He contends that the State violated the rule by not providing the court with an affidavit regarding the previous ruling made by a different judge. Yet, he failed to raise the issue below. RAP 2.5(a). In any case, we consider the motion a new one based on different facts the lateness of the baby's arrival and not the planned paternity leave as in the first motion.
Therefore, LR 7(b)(5) does not apply.
On the new trial date of April 25, the State informed the court that the prosecutor assigned to the case was still unavailable because his wife and baby had suffered complications from the pregnancy:
[A]pparently she is bleeding excessively, she is bedridden, she has apparently been diagnosed with some sort of a thrombosis in her legs which as I understand it is some type of blood clotting, and she's got to be very careful, that she cannot walk without fear of the blood clots that go from her legs to her lungs. His daughter was diagnosed yesterday with jaundice so was going to the twenty-four hour [sic] for her therapy at home. And the bilirubin count on that which initially had gone down, went up last night, so there is some concern about that.
Apparently, the prosecutor needed to take care of his wife and two children during this time. The trial court ruled that the complications were unforeseeable and ordered a four-day extension. We agree that the complications were unforeseeable and find no abuse of discretion in extending the trial date to allow the prosecutor to attend to his wife and family.
II. Prior Bad Acts
The remaining issue on appeal is whether the trial court erred in admitting Reidt's prior bad act. Under ER 404(b), evidence of prior bad acts is not admissible to use as character evidence to show conformity with the present action. It may be admissible for other purposes, however, such as in proving intent, motive, and opportunity, among other things. ER 404(b).
Before admitting such evidence, the trial court must (1) identify the purpose for introducing the evidence, (2) determine whether it is relevant to prove an element of the charged crime, (3) make sure its probative value outweighs any prejudicial effect, and (4) decide whether the offering party met its burden of proving that the bad act occurred by a preponderance of the evidence. State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).
Reidt argues that the trial court erred in admitting evidence about the prior incident in the two women's yard for purposes of proving identity, intent, motive, and opportunity. He contends that the evidence was not relevant for those purposes and, if it was, then its prejudicial effect outweighed any probative value. Identity was a material issue in this case. In her testimony, the rape victim admitted that the medications she had taken before falling asleep made her memory a `little cloudy.'
On cross-examination, defense counsel specifically asked her what effect the medications had on her ability to see. Testimony by the two women was relevant to proving the identity of the rapist because he fit the description of the man moaning in their yard shortly before the rape. The very high probative value of identifying Reidt and his clothing and placing him in the neighborhood before and after the rape outweighs the prejudicial effect. We find that the trial court did not abuse its discretion in admitting the evidence for purposes of identity.
Such evidence is also admissible to establish opportunity that the defendant was capable of committing the crime in the context of time, place, and circumstances. State v. Powell, 126 Wn.2d 244, 262, 893 P.2d 615 (1995). In this case, the yard incident served to show that Reidt was in the neighborhood shortly before the rape and that he rode his bicycle around the block peering into houses. Its high probative value in demonstrating opportunity outweighs any prejudicial effect. We find no abuse of discretion in admitting the evidence for this purpose.
The trial court also admitted the evidence for the purpose of showing motive. Proving motive can be as simple as demonstrating an impulse or desire. Powell, 126 Wn.2d at 259. Here, the yard incident, in which Reidt was moaning with his hands down his pants, strongly indicates that he had a sexual desire shortly before the rape. Because this fact is highly relevant to proving rape, the trial court did not abuse its discretion in finding that its probative value outweighed any prejudicial effect and in admitting it. Intent is the final purpose for which the trial court admitted the evidence. Intent comprises the design, resolve or determination in a person's state of mind to commit an act. Powell, 126 Wn.2d at 261 (quoting Black's Law Dictionary 810 (6th ed. 1990)).
In the yard incident, one of the women had to tell Reidt three times to leave their property as he moaned with his hands down this pants. He returned just minutes later on his bicycle and left only when some neighbors told him that they had called the police. These facts demonstrate a resolve or determination to continue committing this type of misconduct and are relevant to proving the rape that occurred shortly afterwards.
The trial court did not abuse its discretion in admitting this evidence after finding that its high probative value outweighed its prejudicial effect.
In addition, evidence of prior misconduct may be admissible as part of the res gestae of the charged crime. 5 Karl B. Tegland, Washington Practice:
Evidence § 404.18, at 424 (4th ed. 1999). Res gestae or `same transaction' evidence is admissible because it so connected in time, place, or circumstances that it completes the story of the crime. State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997); 5 Tegland, supra, at 424.
In Brown, the Supreme Court found that although the defendant had assaulted, raped, and robbed two different women in two days in two different states, evidence of the second act was admissible as res gestae to complete the story of the first woman's murder. Brown, 132 Wn.2d at 575. Here, Reidt committed the incident in the yard less than an hour before raping the victim. After the witnesses told him to leave their property, he circled around the block on his bicycle until some neighbors informed him that they had called the police.
Later, presumably after the rape, one witness drove around the neighborhood and observed Reidt enter a taxi parking lot. When she communicated this fact to her roommate, her roommate called the police and relayed this information. The police apprehended Reidt at the taxi parking lot shortly afterwards. An officer brought the victim to the taxi parking lot to identify the suspect. According to the officer, the victim immediately identified Reidt as the perpetrator.
Because the incident in the neighbors' yard is so connected in time, place, and circumstances to the rape of the victim, it is also admissible as res gestae evidence in addition to the other stated purposes. Again, in order to be admissible, such evidence must be relevant to a material issue and contain probative value that outweighs any prejudicial effect. Brown, 132 Wn.2d at 571. Here, the trial court found that the yard incident placed Reidt squarely in the neighborhood. The two women described his whereabouts and actions before and after the rape. Its probative value in completing the story of the crime outweighs any prejudicial effect. We find no abuse of discretion in admitting the evidence.
Affirmed.