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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,
                             Respondent,                         No.  40344-7-II

       v.                                                PART PUBLISHED OPINION

MICHAEL ANTHONY MEE,
                             Appellant.

       Van Deren, J.  --  Michael Anthony Mee appeals his convictions for first degree murder by 

extreme indifference1 and unlawful possession of a firearm.  In the published portion of this 

opinion we discuss Mee's argument that the trial court abused its discretion by denying his motion 

to exclude evidence of his gang affiliation.  In the unpublished portion, we address Mee's

argument that the trial court abused its discretion by (1) instructing the jury that it had to be 

unanimous in order to answer "no" to the question on the firearm enhancement special verdict 

form, (2) denying defense counsel's request to question the jury about alleged juror misconduct,

and (3) denying his motion for a mistrial based on the alleged juror misconduct.  We hold that the 

trial court abused its discretion in finding the gang-related evidence more probative than 

1 RCW 9A.32.030(1)(b) provides, "A person is guilty of murder in the first degree when . . . 
[u]nder circumstances manifesting an extreme indifference to human life, he or she engages in 
conduct which creates a grave risk of death to any person, and thereby causes the death of a 
person." 

No.  40344-7-II

prejudicial under ER 403 and in admitting it as evidence of motive but, because the error was 

harmless in the context of overwhelming untainted evidence that Mee fired toward Crystal 

Roberts' home when he knew that people were present both inside and outside the house at a 

birthday party, and that a bullet struck Tracy Steele, killing him, we affirm Mee's convictions.

                                       BACKGROUND 

       On May 9, 2008, Tracy Steele celebrated his 32nd birthday with his fiancée, at his 

fiancée's home in Tacoma, Washington.  Steele left his fiancée's home that evening with his 

fiancée's aunt, Crystal Roberts, to attend another party at Roberts' home in Tacoma.  Roberts 

invited only family members to her party.  D'Andre Sullivan, father of Roberts' children, also 

lived in the home.  Roberts described the party's atmosphere as normal with "[m]usic, food, [and] 

everybody . . . just having a good time." Report of Proceedings (RP) at 506.  The atmosphere 

changed, however, when uninvited guests Charles Pitts and Jason Greer arrived.2 Pitts and 

Sullivan had known each other since they performed music together when they were younger.  

According to Roberts, Pitts was a "troublemaker" and a member of the Lakewood Hustler Crips 

gang.  RP at 507.
       Roberts believed that Greer left the party after a couple of minutes but that Pitts stayed.3  

Pitts' behavior toward the party guests was disrespectful, calling Roberts' sister a "tall A-S-A-B-I-

T-C-H," and telling Roberts that one of her children did not look like the father.  RP at 509.  

Roberts told Pitts to leave, and Pitts asked Sullivan if he could use Sullivan's telephone to call for 

2 Pitts' nicknames were "Shotty" and "Big Shotty." RP at 297.  Greer's nicknames were "Scram"
and "Gutter." RP at 506, 874.

3 Greer testified that he did not leave the party until later that evening.  

                                               2 

No.  40344-7-II

a ride.  

       Mee, who referred to himself as "Little Shotty," showed up at Roberts' house driving 

Tanya Satack's car.  A teenage male who went by the name "Little Shotty Deuce" and three 

females, including Satack, were in the car with Mee.  Mee stopped the car in a manner that caused 

Sullivan to confront Mee and tell him not to disrespect the neighborhood.  Mee responded that he 

"wasn't scared of anyone," and he uttered the terms "'cuz'" and "'loc.'"4 RP at 517.

       About 15 minutes after Mee appeared at Roberts' house, four women in a second vehicle 

drove up.  The women in the second car asked Mee why he was there with those "white bitches."  

RP at 879-80.  Mee argued with the women in the second car and told them to leave; Sullivan 

also told them to leave.  

       While Mee and Sullivan were talking, Mee put his hands on Sullivan's chest.  Upon seeing 

this, Sullivan's stepbrother, DeShawn Henry, ran out of the house and hit Mee.  A fight broke out 

and at some point Steele hit Mee.  Pitts did not become physically involved in the fight but 

repeatedly told everyone, "[T]hose are my little homeboys." RP at 529.  As the fight ended, Mee 

yelled at the top of his voice that he was going to come back.  He left with the people who had 

come with him but Pitts stayed at Roberts' house.  Shortly after Mee left the party, he called 

Greer and told him that someone had "jumped" him and that "Shotty just let him do it and didn't 

do anything." RP at 951.

       That same evening, Marjorie Morales was drinking liquor in the garage of Hokeshina 

Tolbert's house in Tacoma with Tolbert, Dan Bluehorse, Jose Cota Ancheta, and Jesus Cota 

4 Trial testimony revealed that "[c]uz" and "[l]oc" are terms unique to Crip gang members.  RP 
(Dec. 10, 2009) at 80.  "Cuz" is generally a term Crip gang members use to refer to other Crip 
gang members, and "loc" is a term meaning crazy.  RP at 517.

                                               3 

No.  40344-7-II

Ancheta.5 When they started drinking, they were looking at and passing around a rifle.  Mee 

came to Tolbert's house later that evening with the others who had been in the vehicle at Roberts'

home.  Mee was the only one who got out of the car.  Mee told the people in the garage that he 

"got jumped by some people." RP at 723.  Mee and the drinking group then discussed how they 

would retaliate; some wanted to go to Roberts' party and fight, but Mee indicated that he wanted 

to go and shoot.  Bluehorse told Tolbert to get the rifle.  According to Tolbert, he grabbed the 

rifle from the garage, set it down in the yard, and Mee picked it up.  According to Jose and 

Morales, Tolbert or Bluehorse handed the rifle to Mee.  

       Mee, Jesus, Bluehorse, and Morales got into Morales' car with Jesus driving.  Jose sensed 

that something bad was going to happen and began to walk away down an alley but Morales' car 

quickly caught up to him, and Jesus told him to get in.  Tolbert got into Satack's car and told 

Satack to follow Morales' car.  Both cars headed toward Roberts' home.

       As they approached Roberts' home in the vehicle, Jesus turned the car lights off.  Jesus 

stopped the car in front of Roberts' home, and Mee leaned out the window with the rifle and shot 

two or three times.  After the last shot, Jesus drove back to Tolbert's house.  Satack lost sight of 

Morales' car before it got to Roberts' home and, after hearing gunshots nearby, turned her car 

around and drove away.  Moments later, Satack saw Morales' car and followed it back to 

Tolbert's home.  

       Steele, Sullivan, Pitts, and others were outside Roberts' house when Mee fired the rifle.  

When he heard the gunshots, Sullivan ran into the house and yelled for everyone to get down.  

5 Tolbert is an admitted member of the Native Gangster Crips.  Bluehorse admits that he was a 
member of the Native Gangster Crips. Jesus and Jose Cota Ancheta are brothers.  We refer to 
Jesus and Jose Cota Acheta by their first names for clarity.  Jose admits that he was a member of 
the Native Gangster Crips; Jesus did not testify at Mee's trial.  
                                               4 

No.  40344-7-II

Everyone in the house took cover and Roberts shoved her children under a bed.  A little while 

later, Sullivan heard a knock at the door.  When he answered the door, he saw Steele.  Steele ran 

into the house, shook his head, went to the bathroom, and collapsed.  Roberts could see that 

Steele had been shot.  

       Steele died from internal bleeding as a result of the gunshot wound.  The State charged 

Mee with first degree murder by extreme indifference and unlawful possession of a firearm.  

       Before trial, the State filed a motion for an order allowing it to admit gang-related 

evidence under ER 404(b).  Specifically, the State sought to introduce evidence that Mee was a 

member of the Lakewood Hustler Crips and that other individuals involved in the shooting were 

members of the Native Gangster Crips.  The State also sought to admit evidence of the gang 

names of various individuals involved in the shooting incident, gang-related slang terminology, 

typical gang-member behaviors and expectations, and the culture of not cooperating with the 

police because of gang membership or fear of retaliation from gang members.  

       The State argued that the gang-related evidence was admissible at trial to prove motive, 

res gestae, knowledge, and identity.  Specifically, the State indicated that it sought to introduce 

the gang-related evidence for the following reasons:  (1) some witnesses only knew Mee and 

other individuals involved in the shooting by their "street names" or nicknames; (2) Mee may have 

intended to shoot fellow Lakewood Hustler Crips gang member Pitts because Pitts did not come 

to Mee's aid when Mee was beaten at the party; (3) some people in the vehicle with Mee were 

wearing gang-related bandanas when the shooting occurred; (4) some witnesses were reluctant to 

cooperate with police because they did not want to be a "snitch[ ]," and because Pitts threatened a 

witness about testifying at trial; (5) to explain how Mee knew where to obtain a gun; (6) to 

                                               5 

No.  40344-7-II

explain why the shooting was a group effort as opposed to Mee acting alone; (7) to "present the 

accurate truthful story to the jury"; (8) to "dispel some sort of misunderstanding that the Crips are 

all on the same side"; and (9) to show Mee's possible motive in targeting Pitts for failing to assist 

him at Roberts' house, as gang rules required.  RP at 82-85, 90.  Mee objected to the admission 

of gang-related evidence, arguing that the evidence was not relevant and was unduly prejudicial.  

       The trial court ruled that the gang-related evidence was admissible to establish Mee's 

motive.  The trial court noted that the State's offer of proof, if supported by the evidence at trial, 

would establish Mee's gang status and other gang evidence by a preponderance of the evidence, 

thus supporting its admission.  The trial court concluded that it was unnecessary to conduct an 

evidentiary hearing at that time, but it noted that if the evidence at trial did not conform to the 

State's offer of proof, it would entertain the possibility of a mistrial.  

       Several witnesses testified that they knew Mee only by his nickname "Little Shotty" and 

that they knew other individuals involved in the shooting only by their nicknames.  Tolbert 

testified about gang nicknames, indicating that "Big A would be -- the person who started the

name. Little A would be the person that is under them . . . and then it keeps going smaller and 

smaller, baby, deuce." RP (Dec. 10, 2009) at 75.  Tolbert also testified that gang members are 

expected to assist a fellow gang member in a fight and that failing to assist a fellow gang member 

results in a loss of respect.  Jose testified that a gang member's failure to assist a fellow gang 

member in a fight would result in the member having to fight members of their own gang.  Jose 

further testified that a gang member who failed to support a fellow gang member in a fight would 

lose respect, while a gang member who assisted a fellow gang member in a fight would gain 

respect.  Based on Jose's and Tolbert's testimony, the State indicated that it did not need to call 

                                               6 

No.  40344-7-II

its expert gang witness.  

       Mee timely appeals his convictions for first degree murder by extreme indifference and 

challenges the special verdict unanimity instruction.  He also challenges the trial court's denial of 

his request to question a juror during deliberations and denial of his motion for a mistrial based on 

juror misconduct.

                                          ANALYSIS

                                    Gang-Related Evidence

       Mee contends that the trial court abused its discretion by allowing the State to admit gang-

related evidence in violation of ER 404(b).  Specifically, Mee argues that the trial court abused its 

discretion by admitting the gang-related evidence under the motive exception to ER 404(b) 

because motive is not an element of first degree murder by extreme indifference.  Mee also 

contends that the trial court abused its discretion by failing to exclude the gang evidence under 

ER 403.  Following our decision in State v. Yarbrough, 151 Wn. App. 66, 210 P.3d 1029 (2009), 

we hold that a trial court may, under appropriate circumstances, admit ER 404(b) gang evidence 

to establish a defendant's motive for committing first degree murder by extreme indifference.  But 

because the gang-related evidence here had little probative value and was highly prejudicial, we 

also hold that the trial court abused its discretion by admitting the gang-related evidence.

       We review a trial court's decision to admit evidence of other crimes or misconduct for an 

abuse of discretion.  State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995). A trial court 

abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds 

or reasons.  State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997).

       Evidence of other crimes, wrongs, or acts is not admissible to prove character or 

                                               7 

No.  40344-7-II

conformity with it, but it may 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).  Before a trial court may admit evidence of other crimes or misconduct, it must (1) find by 

a preponderance of the evidence that the misconduct occurred, (2) determine whether the 

evidence is relevant to a material issue, (3) state on the record the purpose for which the evidence 

is being introduced, and (4) balance the probative value of the evidence against the danger of 

unfair prejudice.  State v. Kilgore, 147 Wn.2d 288, 292, 53 P.3d 974 (2002).  "ER 404(b) is not 

designed 'to deprive the State of relevant evidence necessary to establish an essential element of 

its case,' but rather to prevent the State from suggesting that a defendant is guilty because he or 

she is a criminal-type person who would be likely to commit the crime charged."  State v. 

Foxhoven, 161 Wn.2d 168, 175, 163 P.3d 786 (2007) (quoting State v. Lough, 125 Wn.2d 847, 

859, 889 P.2d 487 (1995)).  ER 404(b) must be read in conjunction with ER 403.  State v. Smith, 

106 Wn.2d 772, 775, 725 P.2d 951 (1986).  "ER 403 requires exclusion of evidence, even if 

relevant, if its probative value is substantially outweighed by the danger of unfair prejudice."  

Smith, 106 Wn.2d at 776.

       A.  Reliance on the State's Offer of Proof To Establish the Fact of Misconduct

       As an initial matter, Mee contends that the trial court abused its discretion by ruling that 

the ER 404(b) gang evidence was admissible without conducting an evidentiary hearing to 

determine whether the State could prove its claimed gang evidence and its relevance by a 

preponderance of the evidence.  We disagree because the trial court relied on the State's offer of 

proof to establish the admissibility of the gang-related evidence and instructed counsel that the 

State's evidence during trial must support the offer of proof that the conduct occurred or face a 

                                               8 

No.  40344-7-II

mistrial. 

       Our Supreme Court has held that in ruling on the admissibility of evidence under ER 

404(b), a trial court may rely on the State's offer of proof to establish the fact of misconduct by a 

preponderance of the evidence.  Kilgore, 147 Wn.2d at 294-95.  The court reasoned:

       Requiring an evidentiary hearing in any case where the defendant contests a prior 
       bad act would serve no useful purpose and would undoubtedly cause unnecessary 
       delay in the trial process.  In our view, these hearings would most likely degenerate 
       into a court-supervised discovery process for defendants. . . . We believe, in the 
       final analysis, that the trial court is in the best position to determine whether it can 
       fairly decide, based upon the offer of proof, that a prior bad act or acts probably 
       occurred.

Kilgore, 147 Wn.2d 294-95.  Our Supreme Court has thus approved the procedure the trial court 

employed here, and Mee does not provide any contrary authority.  Accordingly, the trial court did 

not abuse its discretion in admitting the ER 404(b) evidence in reliance on the State's offer of 

proof, subject to confirming the proffered evidence during trial.

       B.  Motive

       Mee also contends that the trial court abused its discretion by finding the gang-related 

evidence relevant to prove motive because motive is not an element of first degree murder by 

extreme indifference.  Because prior case law has established that the State may present evidence 

of a defendant's motive to commit first degree murder by extreme indifference, we disagree.

       To convict Mee of first degree murder by extreme indifference, the State had to prove 

beyond a reasonable doubt that (1) Mee acted with extreme indifference, an aggravated form of 

recklessness; (2) he created a grave risk of death to others; and (3) his actions caused the death of 

a person.  RCW 9A.32.030(1)(b); Yarbrough, 151 Wn. App. at 82-83 (citing State v. Pastrana, 

94 Wn. App. 463, 470, 972 P.2d 557 (1999)).

                                               9 

No.  40344-7-II

       In Yarbrough, we held that the trial court did not abuse its discretion by admitting gang-

related evidence to prove the defendant's motive for committing first degree murder by extreme 

indifference, even though motive was not an element of the crime.  94 Wn. App. at 84.  We relied 

on State v. Boot, 89 Wn. App. 780, 950 P.2d 964 (1998) in holding that motive may be relevant 

to prove the crime of first degree murder by extreme indifference, "'[a]lthough the State is not

required to prove motive as an element of [aggravated first degree murder], evidence showing 

motive may be admissible' if 'the evidence is relevant and necessary to prove an essential element 

of the crime charged.'"  Yarbrough, 151 Wn. App. at 83 (second alteration in original) (quoting 

Boot, 89 Wn. App. at 789).  

       Mee acknowledges our decision in Yarbrough, which rejected the same argument he raises 

here.  But Mee contends that Yarbrough was incorrectly decided, and he requests that we 

overturn our previous decision, asserting that Yarbrough relied on an improper interpretation of 

previous case law, including State v. Athan, 160 Wn.2d 354, 158 P.3d 27 (2007) and State v. 

Powell, 126 Wn.2d 244, 893 P.2d 615 (1995).  Mee contends that Athan and Powell stand for the 

proposition that "where only circumstantial evidence exists indicating an accused is guilty of 

murder, evidence of that accused's motive to kill the victim may be admissible in some cases."  

Opening Br. of Appellant at 29.  Mee bases his interpretation on a quote in Athan, which reads, 

"Although motive is not an element of murder, it is often necessary when only circumstantial 

evidence is available." 160 Wn.2d at 382 (citing Powell, 126 Wn.2d at 260).  

       But Mee reads the quote too broadly and, contrary to Mee's contentions, Athan and 

Powell do not support his argument that evidence of motive is irrelevant when the State has direct 

evidence of the defendant's guilt.  As the State correctly points out, the statement quoted in 

                                               10 

No.  40344-7-II

Athan was in the context of an analysis of the applicability of the state of mind exception to the 

hearsay rule and did not consider the issue under ER 404(b).  160 Wn.2d at 382-83.  

       Powell considered the admission of ER 404(b) evidence in a spousal murder case.  126 

Wn.2d at 259.  There, our Supreme Court stated, "[M]otive goes beyond gain and can 

demonstrate an impulse, desire, or any other moving power which causes an individual to act."  

Powell, 126 Wn.2d at 259.  The Powell court defined motive as, "'Cause or reason that moves 

the will . . . An inducement, or that which leads or tempts the mind to indulge a criminal act. . . . 

the moving power which impels to action for a definite result . . . that which incites or stimulates a 

person to do an act.'" 126 Wn.2d at 259 (internal quotation marks omitted) (quoting State v. 

Tharp, 96 Wn.2d 591, 597, 637 P.2d 961 (1981)).

       Moreover, ER 401 defines "[r]elevant evidence" as "evidence having 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." Whether evidence of a 

defendant's motive tends to make the existence of any consequential fact more or less probable 

does not depend on direct evidence of the defendant's guilt.  Because Mee fails to demonstrate 

that the rule set forth in Yarbrough is incorrect, we decline to overturn it.  State v. Devin, 158 

Wn.2d 157, 168, 142 P.3d 599 (2006).

       C.  ER 403 

       Although we decline to overturn our decision in Yarbrough and we reject Mee's 

contention that the State may not present ER 404(b) evidence to establish a defendant's motive 

on a charge of first degree murder by extreme indifference, we hold that, under the facts and 

evidence presented in this case, the trial court abused its discretion in admitting the gang-related 

                                               11 

No.  40344-7-II

evidence because the danger of unfair prejudice substantially outweighed its probative value.

       Before a trial court may admit prior bad acts evidence under ER 404(b), it must find that 

the probative value of the evidence substantially outweighs the danger of unfair prejudice under 

ER 403.  See, e.g., State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009); Smith, 106 Wn.2d 

at 775-76.  ER 403 states, "Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 

the jury, or by considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence."  

       To establish Mee's motive to commit first degree murder by extreme indifference, the 

State presented testimony from Tolbert, an admitted member of the Native Gangster Crips, that 

gang members are expected to assist fellow gang members in a fight or risk losing respect.  The 

State presented similar testimony from Jose, an admitted former member of the Native Gangster 

Crips, that gang members who fail to assist a fellow gang member lose respect and, as a 

consequence, may be expected to fight members of their own gang.  Based on Tolbert's and 

Jose's testimony regarding the general rules of their "gang culture," the State argued in closing 

that Mee, an alleged member the Lakewood Hustler Crips, committed first degree murder by 

extreme indifference because, based on the Native Gangster Crips gang members' understanding 

of their gang rules, Mee wanted to target Pitts, also an alleged member of the Lakewood Hustler 

Crips, for Pitts' failure to assist Mee in a fight.  The State told the jury:

              Everybody, every aspect, every witness in this case says the same thing.  
       The defendant is upset.  He got jumped.  Shotty didn't have his back and that's a 
       huge thing in the gang world.  In his mind, Shotty had to help him.  And the 
       defendant, for street credibility, for every reason that you came to understand after 
       this long explanation and details about the culture out there, he cannot take it.  He 
       cannot just go away because then he is the punk and that's not his personality on 

                                               12 

No.  40344-7-II

       this particular evening, that's not his way of dealing with the situation.
              It may be foreign to other people, but in that world as you can readily tell, 
       that's all it takes to get . . . Steele killed.  And if it's not [Steele] that the gun[ is]
       being fired at, it's [Sullivan], and if it's not [Sullivan], maybe the primary target is . 
       . . Pitts . . . for not assisting.  That punk, I'll show him.  

RP at 1870-71.
       Eyewitnesses to Mee's conduct and evidence from others who participated in the events 

made it clear that Mee shot a rifle two or three times indiscriminately at a residence where a 

birthday party was underway with people both inside and outside the home.  This evidence was 

overwhelming and undisputed.  Tolbert's and Jose's testimony that, in general, gang members are 

expected to assist other gang members in a fight or risk losing respect was irrelevant to prove that 

Mee killed Steele by extreme indifference by firing the gun into the house.  The State's evidence 

of "gang culture" rules was extremely prejudicial because it invited the jury to make the 

"forbidden inference" underlying ER 404(b): that Mee's gang membership showed his propensity 

to commit the charged crimes.  State v. Wade, 98 Wn. App. 328, 336, 989 P.2d 576 (1999).  

       Simply put, generalized evidence regarding the behavior of gangs and gang members,

absent (1) evidence showing adherence by the defendant or the defendant's alleged gang to those 

behaviors, and (2) that the evidence relating to gangs is relevant to prove the elements of the 

charged crime, serves no purpose but to allow the State to "suggest[ ] that a defendant is guilty 

because he or she is a criminal-type person who would be likely to commit the crime charged."  

Foxhoven, 161 Wn.2d at 175.  Thus, the trial court abused its discretion by admitting the gang 

evidence because the danger of unfair prejudice substantially outweighed the probative value.6  

6 In holding that the trial court abused its discretion by admitting the gang-related evidence under 
ER 403, we briefly address the State's argument that the gang-related evidence was admissible to 
prove identity, knowledge, and the res gestae of the crime.  See State v. Burkins, 94 Wn. App. 
677, 689, 973 P.2d 15 (1999) (reviewing court may affirm a trial court's ER 404(b) ruling on any 
correct ground.).  Regarding identity, the gang-related evidence was highly prejudicial and had 
                                               13 

No.  40344-7-II

       But we conclude that the trial court's abuse of discretion in admitting the gang-related 

evidence was harmless in light of the evidence in this case.  The erroneous admission of prior bad 

acts evidence under ER 404(b) "requires reversal only if the error, within reasonable probability, 

materially affected the outcome of the trial."  State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 

270 (1993).  Here, the gang culture evidence did not materially affect the outcome of Mee's trial

in light of the overwhelming evidence establishing Mee's guilt.  Several witnesses who admitted 

their participation in the shooting established that Mee (1) got the gun from Tolbert, (2) got in the 

car with others to drive to the house and shoot, and (3) fired the rifle at Roberts' house where he 

knew a number of people were at a birthday party, with the result that a bullet struck Steele and 

killed him.  This is overwhelming evidence of Mee's culpability for the charged crimes.  And this 

evidence remains untainted by the trial court's erroneous admission of gang-related evidence.  

Accordingly, there is no reasonable probability that the jury's ultimate verdict was materially 

affected by the gang-related evidence, thus, its admission in this case was harmless.  

       In holding that the trial court abused its discretion by admitting gang-related evidence, we 

note that trial courts should be particularly cautious when weighing the probative value of gang-

little probative value in establishing the identity of Mee or the other participants because evidence 
of Mee's and the other participants' nicknames is not inextricably tied to their gang-affiliation.  
The State does not explain in its brief why the gang-related evidence was necessary to establish 
knowledge but in its motion to admit gang-related evidence at the trial court the State asserted the 
gang-related evidence was necessary to establish how Mee knew where to find a gun.  Even 
assuming that Mee's knowledge of how to obtain a gun was relevant to any essential element of 
the charged crimes, the gang-related evidence was highly prejudicial and had little probative value 
because Mee's knowledge of how to obtain a gun may be inferred by the fact that he did obtain a 
gun.  Finally, although the gang-related evidence was relevant to show the res gestae of the crime, 
any probative value in the gang-related evidence was outweighed by the danger of unfair 
prejudice under the facts of this case.  Here, the State's evidence from several witnesses was that 
they saw Mee get in a fight at a party, that he was clearly upset, and that he returned a short time 
later and fired a rifle from the car, killing Steele.  Gang-related evidence was thus not relevant to 
the elements of this crime.
                                               14 

No.  40344-7-II

related evidence against its inherently prejudicial effect.  As this case exemplifies, admitting 

testimony about gangs in general allows the State to argue from that generalized evidence that an 

individual gang member engaged in the charged criminal conduct because of gang membership.  

Juries are then encouraged to assume that the defendant adheres to the stereotyped gang actions.  

Accordingly, the admission of gang evidence may result in a guilty verdict influenced by highly 

prejudicial propensity evidence, contrary to the principles of a fair trial. That we hold the 

admission of this evidence did not unfairly prejudice Mee here is entirely dependent on the 

powerful untainted evidence of his actions related by the other participants in the shooting.

       A majorityof the panel having determined that only the foregoing portion of this opinion 

will be printed in the Washington Appellate Reports and that the remainder shall be filed for 

public record pursuant to RCW 2.06.040, it is so ordered.

                             Special Verdict Unanimity Instruction

       The jury returned a special verdict finding that Mee was armed with a firearm during the 

commission of the murder.  Mee contends, for the first time on appeal, that the trial court erred by 

instructing the jury that it had to be unanimous to return a "no" answer on the special verdict 

firearm enhancement form, citing State v. Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010).  The 

State argues that Mee has not preserved this error for appeal by failing to object to the jury 

instruction at trial.  Following our recent decisions in State v. Bertrand, 165 Wn. App. 393, 267 

P.3d 511 (2011), petition for review filed, No. 86903-1 (Wash. Jan. 11, 2012) and State v. 

Grimes, 165 Wn. App. 172, 267 P.3d 454 (2011), petition for review filed, No. 86869-7 (Wash. 

Jan. 3, 2012), we agree with the State.7

7 Division One and Division Three of this court recently held that unanimous "no" special verdict 
jury instructions held improper in Bashaw do not constitute manifest constitutional errors that 
                                               15 

No.  40344-7-II

       The jury instruction at issue here states in relevant part:

       Because this is a criminal case, all twelve of you must agree in order to answer the 
       special verdict form.  In order to answer the special verdict form "yes," you must 
       unanimously be satisfied beyond a reasonable doubt that "yes" is the correct 
       answer.  If you unanimously have a reasonable doubt as to the question, you must 
       answer "no."

Clerk's Papers at 294.

       In Bashaw, our Supreme Court held a similar instruction requiring jury unanimity 

improper under our common law, stating, "A nonunanimous jury decision on such a special 

finding is a final determination that the State has not proved that finding beyond a reasonable 

doubt." 169 Wn.2d at 145.  But our Supreme Court did not address whether a defendant may 

raise this type of error for the first time on appeal under RAP 2.5(a)(3).8  

       In Bertrand and Grimes, we held that a defendant may not challenge similar special verdict 

jury unanimity instructions for the first time on appeal.  165 Wn. App. at 399-403; 165 Wn. App.

at 179-91. In so holding, we reasoned that the error was neither constitutional in nature nor 

manifest -- meaning the error did not have "'practical and identifiable consequences' in the trial 

below."  Bertrand, 165 Wn. App. at 400 (quoting Grimes, 165 Wn. App. at 187).  As in Bertrand 

appellants may raise for the first time on appeal under RAP 2.5(a)(3).  State v. Morgan, 163 Wn. 
App. 341, 352-53, 261 P.3d 167 (2011), petition for review filed, No. 86555-8 (Wash. Oct. 3, 
2011); State v.Nunez, 160 Wn. App. 150, 158-60, 164-65, 248 P.3d 103, review granted, 172 
Wn.2d 1004 (2011).  But a different panel of Division One of this court reached the opposite 
conclusion in State v. Ryan, 160 Wn. App. 944, 252 P.3d 895, review granted, 172 Wn.2d 1004 
(2011).  Our Supreme Court granted review in Nunez and Ryan, consolidated the cases for 
appeal, and heard oral arguments on January 12, 2012.  Our Supreme Court stayed a petition for 
review in Morgan pending a final decision in Nunez and Ryan.

8 RAP 2.5(a)(3) provides, "The appellate court may refuse to review any claim of error which was 
not raised in the trial court.  However, a party may raise the following claimed error[ ] for the first 
time in the appellate court: . . . manifest error affecting a constitutional right."

                                               16 

No.  40344-7-II

and Grimes, Mee has not raised a manifest error implicating a specifically identified constitutional 

right that he may raise for the first time on appeal under RAP 2.5(a)(3).  Accordingly, we decline 

to address the issue.

                             Juror Misconduct/Motion for Mistrial

       During the trial, the prosecutor informed the trial court that he would be appearing on a 

television show titled, "Gangland" on the History Channel.  Based on this information, the trial 

court instructed the jury not to "view any television programs or anything on the subject matter of 

this case." RP at 1123. 

       When the jury indicated that it had reached a verdict, because the defense attorney was 

unavailable for the verdict reading, the trial court excused the jury for the day and sealed the 

verdict.  Juror 5 returned to the jury room to pick up his personal belongings and mentioned to 

the judicial assistant that "the prosecutor had his stuff together, and that [juror 5's] wife was 

flipping through the channels the other night and saw the prosecutor on [television]." RP at 1887.  

The judicial assistant did not respond to the juror's comments.  The following day, the trial court 

informed the State and defense counsel of juror 5's comments to the judicial assistant.  

       After an extensive discussion with counsel, the trial court decided to question juror 5 

outside the presence of the other jurors.  In response to the trial court's questions, juror 5 

revealed the following:

       I believe it was last week, we were watching the History Channel at home and they 
       were talking about what they were going to be showing during that episode and it 
       was talking about San Bernardino gangs and that's where I met my wife is in San 
       Bernardino as a marine corp[sman].     And I remember seeing the Hells Angels 
       motorcycles down there and I always thought those are big motorcycles, not 
       necessarily the folks.
              And then they went onto another thing quickly and they talked about some 
       gang activity, different types of gangs here in Tacoma, and it showed a picture of 

                                               17 

No.  40344-7-II

       the Tacoma Dome area and I said to my wife, I says, that's Tacoma on there.  And 
       it was about a white -- I don't know how much you want me to get into this, but 
       white supremacist kind of folks, I guess, that went down to -- I want to call it 
       Hobo Village or something, and beat up one or two individuals.
              And then the picture that came on there next happened to be one of the 
       people that I've seen in the courtroom and I was surprised to see him [(the 
       prosecutor)] and I was impressed with what I heard and the wildness of the act.  
       And I think I mentioned that -- I think that's why I mentioned that, but I had seen 
       that.  Seeing that did not prejudice my opinion towards this or against this case in 
       the least.

RP at 1900-1901.

       Juror 5 admitted that he watched the episode that featured the prosecutor in Mee's trial.  

He initially denied that he had discussed watching the show with the other jurors, but quickly 

corrected himself, stating, "I did say something that I had seen [the prosecutor] on television that 

week, and I thought it was kind of ironic, but that's all I had said about that." RP at 1902.  He 

did not recall which jurors he had mentioned seeing the prosecutor on television to, but he 

recalled mentioning it before the jury reached a verdict.  The trial court declined defense counsel's 

request to question the other jurors about what juror 5 had told them, and it also denied defense 

counsel's motion for a mistrial.  The trial court found that juror 5's conduct in watching the 

television show was misconduct, dismissed him from the jury, and called in an alternate juror, 

which required that deliberations start over.  The reconstituted jury returned verdicts finding Mee 

guilty of first degree murder by extreme indifference and unlawful possession of a firearm and a 

special verdict finding that Mee was armed with a firearm during the commission of the murder.  

       Mee contends that the trial court abused its discretion by refusing to question the entire 

jury regarding juror 5's misconduct.9 He argues that the trial court abused its discretion in failing 

9 Neither party challenges the trial court's decision to dismiss juror 5 from the jury for 
misconduct.
                                               18 

No.  40344-7-II

to question the other jurors because juror 5's answers to the trial court's questions were 

inconsistent about whether he mentioned seeing the prosecutor on television.  We disagree.

       We review a trial court's decisions regarding investigation of jury problems for an abuse 

of discretion. State v. Elmore, 155 Wn.2d 758, 773-74, 123 P.3d 72 (2005). A trial court abuses 

its discretion when it bases its decision on unreasonable or untenable grounds. State v. Rafay, 

167 Wn.2d 644, 655, 222 P.3d 86 (2009).  We defer to a trial court's fact-finding function as to 

credibility and the weight given to the evidence in this circumstance.  See State v. Jorden, 103 

Wn. App. 221, 229, 11 P.3d 866 (2000) (reviewing court defers to the trial court's credibility 

determinations on matters within the trial court's "'fact-finding discretion'") (quoting Ottis v. 

Stevenson-Carson Sch. Dist. No. 303, 61 Wn. App. 747, 753, 812 P.2d 133 (1991)).  

       Trial courts have a "'continuous obligation'" under RCW 2.36.110 and CrR 6.5 "to 

investigate allegations of juror unfitness and to excuse jurors who are found to be unfit, even if 

they are already deliberating." Elmore, 155 Wn.2d at 773 (citing Jorden, 103 Wn.App. at 227).  

But when investigating accusations of juror misconduct, the trial court must be cautious in its 

inquiry to preserve the secrecy of juror deliberations. Elmore, 155 Wn.2d at 771.

       Regarding the scope of a trial court's investigation of jury issues, our Supreme Court has 

stated:

              Washington and other courts have granted broad discretion to the trial 
       judge in conducting an investigation of jury problems.  Jorden, 103 Wn. App. at 
       229 ("[T]he trial judge has discretion to hear and resolve the misconduct issue in a 
       way that avoids tainting the juror and, thus, avoids creating prejudice against either 
       party."); [United States v.] Peterson, 385 F.3d [127,] 135 [(2d Cir. 2004)] 
       (granting trial court discretion as to whether to conduct further inquiry, but noting 
       that the court must take care not to taint the jury unnecessarily); [United States v.] 
       Edwards, 303 F.3d [606,] 634 [(5th Cir. 2002)] ("[T]he district court continues to 
       enjoy wide discretion to determine the proper scope of an investigation into 
       whether just cause to dismiss a juror exists as long as the content of the 

                                               19 

No.  40344-7-II

       deliberations is left undisturbed."). . . .
              We emphasize that the trial court retains discretion to investigate 
       accusations of juror misconduct in the manner most appropriate for a particular 
       case.

Elmore, 155 Wn.2d 773-74.

       Here, the trial court took appropriate steps to balance its obligations to investigate juror 

misconduct allegations with the need to preserve the secrecy of jury deliberations. When it 

discovered that juror 5 may have viewed extrinsic evidence in the form of a television program 

about gangs that featured the prosecutor in Mee's trial, the trial court limited its inquiry into the 

subject matter of the program and whether the juror discussed the content of the program with

the other jury members. The trial court also instructed the State and defense counsel, over 

defense counsel's objection, that the trial court alone would question the juror. In so instructing 

the State and defense counsel, the trial court correctly noted that it was the trial court's province 

to investigate juror misconduct allegations.

       After discovering that the juror did not discuss the content of the program with the other 

jurors and instead mentioned only that he had seen the prosecutor on television and was favorably 

impressed by him, the trial court also acted within its considerable discretion by dismissing the 

juror, declining to question the other jurors about what juror 5 had told them, and requiring the 

entire jury deliberation process to start over with an alternate juror.  Because the trial court's 

decision was based on its observation of the juror while testifying and its credibility determination, 

we do not disturb the trial court's conclusion to not question the other deliberating jurors.  Unlike 

the questions directed at juror 5 regarding the content of the extrinsic evidence he had viewed, 

questioning the remaining jurors about what juror 5 had discussed with them during deliberations 

                                               20 

No.  40344-7-II

risked intruding into the deliberative process.  

       Moreover, such questioning was not warranted given juror 5's statement that he did not 

discuss the program with other juror members apart from mentioning that he had seen the 

prosecutor on television under questioning by the trial court.  The trial court accepted this 

testimony as true and the trial court's conclusion that such a statement did not prejudice Mee was 

within its broad discretion.  

       Because the trial court dismissed juror 5 for misconduct and its denial of Mee's request to 

question the remaining juror members was within its discretion, we hold that it did not err in 

denying Mee's motion for a mistrial based on allegations of jury misconduct.  

       We further hold that, although the trial court abused its discretion in admitting the State's 

gang evidence, because there was overwhelming untainted evidence that Mee committed the 

charged crimes, we affirm Mee's convictions.

                                                 Van Deren, J.
We concur:

Armstrong, J.

Worswick, A.C.J.

                                               21