PER CURIAM.
Keith Hunt appeals his conviction for first degree robbery and first degree kidnapping. Because the trial court did not abuse its discretion by admitting testimony establishing the victim's state of mind and by denying his request for a limiting instruction, we affirm.
One evening in August 1999, Russell Elder stopped for gas at an AM/PM station in Shoreline. Co-defendant Raul Medina approached Elder at the gas station and asked him if he wanted to buy some marijuana. Elder recognized Medina, but did not know him personally. Elder agreed to purchase five dollars worth of marijuana, and followed Medina to the sidewalk after purchasing his gas. Hunt, whom Elder knew by the nickname `Fraggle,' joined them, and the three of them then met up with a group of approximately six other individuals. They entered a wooded area across the street, and Medina explained that they were going to meet the person who had the marijuana. Elder testified that, once inside the woods, Medina turned and hit him in the face. He stated that, once he fell to the ground, Hunt and the rest of the group began punching and kicking him. He testified that Medina and Hunt went through his pockets, taking his wallet and car keys. Medina left briefly and returned with Elder's car. The remaining members of the group forced Elder over to his car, where Hunt and others continued to beat him. Elder stated that Medina and another person then forced him into the trunk of his car. Elder further testified that he rode in the trunk for approximately fifteen minutes, before the car came to a stop and its occupants left. While on routine patrol, a Shoreline School District security guard found Elder and called authorities who freed him from the trunk.
The State charged Hunt and Medina with one count of first degree robbery and one count of first degree kidnapping. After a joint trial, the jury convicted Hunt and Medina on both charges. Hunt appeals.
Evidentiary Ruling
Hunt argues that the trial court abused its discretion by admitting Elder's testimony that he was afraid upon hearing the car's occupants plotting to kill him. He first asserts that Elder's testimony was irrelevant because state of mind is not an element of either robbery or kidnapping, and that the trial court thus abused its discretion by admitting it. Hunt also argues that, even if Elder's testimony was admissible against Medina to rebut his anticipated consent defense, the trial court erred by denying his request for an instruction limiting the jury's consideration of that evidence to Medina's case.
The trial court permitted Elder to testify as to a conversation he heard while riding in the trunk of the car. Elder testified that he heard one of the car's occupants say `I want to kill this guy,' and another person reply `We've got to find a spot.' The prosecutor then asked Elder what was going through his mind while he was in the trunk, to which he responded that he was afraid, `was pretty much preparing [himself] to be killed,' and was thinking of the possible ways that he might die. As a preliminary matter, the State argues that Hunt has waived his right to challenge the admission of this testimony by failing to request a limiting instruction. But the following exchange indicates that Hunt's attorney did request such an instruction, and the trial court denied that request:
State v. Ramirez, 62 Wn. App. 301, 306, 814 P.2d 227 (1991), review denied, State v. Barrera, 118 Wn.2d 1010 (1992) (when an instruction to the jury can obviate error due to the admission of evidence, a party that fails to request such an instruction waives the claimed error); State v. Newbern, 95 Wn. App. 277, 295-96, 975 P.2d 1041, review denied, 138 Wn.2d 1018 (1999) (failure to request a limiting instruction, even if clearly entitled to it, waives the right to such an instruction and to challenge the admission of the evidence); State v. Ellard, 46 Wn. App. 242, 244, 730 P.2d 109 (1986), review denied, 108 Wn.2d 1011 (1987) (failure to respond to trial court's invitation to submit limiting instructions means the issue is waived on appeal).
Hunt's defense counsel: The Court's ruling, as I understood it, was that [Elder's testimony] came in as a state of mind. And the reason why it was coming in as state of mind is because [Medina] is apparently asserting a defense of consent. And that's not relevant with respect to Hunt's defense and I ask for a limiting instruction on that ground.
The Court: I'm not sure how — if I permit Elder to testify about his mental state at a particular moment, that that isn't admissible against each of them.
Defense Counsel: It would be our argument that his state of mind is not an argument of defense [sic], and therefore, isn't relevant for any purpose. Unless it's to respond to some kind of consent defense raise[d] by another defendant.
The Court: I agree it is not an element of the offense, but I also believe that it is part of the story, if you will, that the State gets to put on. But I don't think it's limited as to one defendant. So I'm overruling that objection or denying that motion. If you want to craft a limiting instruction, I'll be happy to take a look at it, if there is something further on this point or something else.
Hunt's attorney clearly asked for a limiting instruction, and the trial court denied that request. The court invited defense counsel to craft a limiting instruction, but only in the event that he had something additional to bring to the court's attention. Hunt did not waive his right to challenge the admission of the evidence by failing to craft a limiting instruction that the court had already rejected.
State v. Cantabrana, 83 Wn. App. 204, 208-09, 921 P.2d 572 (1996) (failure to properly object may be excused where it would have been a useless endeavor).
Because he properly preserved the issue for appeal, we turn now to Hunt's argument that the trial court abused its discretion by admitting Elder's testimony and refusing his request for a limiting instruction. We review the trial court's evidentiary ruling for an abuse of discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evidence that is not relevant is not admissible. Under ER 403, the court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.
State v. Matthews, 75 Wn. App. 278, 283, 877 P.2d 252 (1994), review denied, 125 Wn.2d 1022 (1995).
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
ER 401.
ER 402.
ER 403.
Hunt argues that Elder's testimony was irrelevant because state of mind is not an element of either robbery or kidnapping, and because he did not assert consent as a defense. Because Elder's testimony was admissible as part of the `res gestae' of the offense itself, we disagree.
A person is guilty of robbery in the first degree if he takes property from the person of, or in the presence of, another by the use or threatened use of force or fear of injury and inflicts bodily injury in the commission of or immediate flight from the robbery. Under the res gestae rule, evidence of other bad acts is relevant and admissible `to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.' The evidence must be `a piece in the mosaic necessarily admitted in order that a complete picture be depicted for the jury." The probative value of the evidence must outweigh its prejudicial effect.
RCW 9A.56.190; RCW 9A.56.200.
State v. Powell, 126 Wn.2d 244, 263, 893 P.2d 615 (1995) (quoting State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980)). See also State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
Powell, 126 Wn.2d at 263.
Lane, 125 Wn.2d at 834.
Here, Elder's testimony that he was afraid that the occupants of the car were going to kill him was admissible as part of the res gestae of the offense. The trial court's ruling on the objection acknowledges that. The robbery, which involved the taking of Elder's car, continued after the group left the woods. The robbery was ongoing at the time of the conversation to which Elder testified, and was interrupted only by the arrival of the security guard who discovered Elder in the trunk of the car. Elder's testimony was relevant to provide the jury with the complete story of the crime.
In admitting such res gestae evidence, the trial court must `determine on the record whether the danger of undue prejudice substantially outweighs the probative value of such evidence, in view of the other means of proof and other factors.' But the trial court's failure to weigh prejudice on the record is harmless `when the record is sufficient for the reviewing court to determine that the trial court, if it had considered the relative weight of probative value and prejudice, would still have admitted the evidence.' Such error is also harmless when, `considering the untainted evidence, the appellate court concludes the result would have been the same even if the trial court had not admitted the evidence.'
Powell, 126 Wn.2d at 264.
State v. Carleton, 82 Wn. App. 680, 686, 919 P.2d 128 (1996).
Carleton, 82 Wn. App. at 686-87.
Here, the trial court erred by failing to conduct the proper balancing test on the record. But because the record is sufficient for us to determine that the trial court would still have admitted the evidence had it balanced the probative value of the evidence against it prejudicial effect, its error in failing to do so was harmless. Because the record already contained similar evidence, the prejudicial effect of Elder's testimony as to his state of mind while in the trunk was minimal. Specifically, Elder testified, without any objection from defense counsel, that Medina warned him not to kick or scream while inside the trunk or they would kill him.
Because Elder's testimony was probative as part of the res gestae of the offense, and was not unduly prejudicial, we hold that the trial court did not abuse its discretion by admitting it or by denying Hunt's request for a limiting instruction.
We affirm the judgment and sentence.