State Of Washington, Respondent V. Brandon Jerome Robinson, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
v.
BRANDON JEROME ROBINSON,
Appellant.
No. 85428-3-I
ORDER GRANTING MOTION
FOR RECONSIDERATION,
WITHDRAWING OPINION,
AND SUBSTITUTING
OPINION
The appellant, Brandon Robinson, has filed a motion for reconsideration of
the opinion filed on October 27, 2025. The Respondent, State of Washington, has
filed a response. The court has determined that the motion should be granted, the
opinion withdrawn, and a substitute opinion filed; now, therefore, it is hereby
ORDERED that the motion for reconsideration is granted; and it is further
ORDERED that the opinion filed on October 27, 2025 is withdrawn; and it is
further
ORDERED that a substitute opinion shall be filed.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
BRANDON JEROME ROBINSON,
Appellant.
No. 85428-3-I
DIVISION ONE
UNPUBLISHED OPINION
FELDMAN, J. — Brandon Jerome Robinson appeals his convictions and
sentence for rape in the second degree and burglary in the first degree. He argues
(1) the trial court abused its discretion by admitting under the res gestae doctrine
evidence regarding his conduct in the hours prior to M.R.’s rape, (2) his conviction
for aggravated assault in Pennsylvania was improperly included in his offender
score at sentencing, (3) the community custody condition concerning geographic
boundaries imposed by the trial court at sentencing was unconstitutionally vague,
and (4) remand is necessary to strike the victim penalty assessment (VPA) and
DNA collection fee from his judgment and sentence. We remand to strike the VPA
and DNA collection fee. In all other respects, we affirm.

No. 85428-3-I
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I
M.R. awoke around 5 a.m. on January 24, 2021 to a man raping her in her
bedroom of her sorority house one block off the University of Washington campus.
Upon waking, she pushed the man off of her and he fled, leaving behind a pair of
black boots. M.R. called the police, who collected the boots, and she went to the
hospital for a sexual assault examination. While M.R. was at the hospital, a man
knocked on the door of her house seeking boots he left there. 	M.R.’s roommate
took a picture of the man and furnished it to police. 	Police used that photo in a
department-wide bulletin seeking the suspect who raped M.R.
A police officer recognized the man in the photo as Brandon Robinson, who
he had encountered the same morning M.R. was raped. 	Around 2 a.m. that
morning, some college students who lived near M.R. called police because they
saw someone looking into their first floor apartment kitchen window and were
frightened. 	Arriving officers saw someone, later identified as Robinson, leaning
into an open bedroom window of a different apartment nearby. Robinson insisted
that he knew the female occupant. The woman stated she did not know Robinson.
One of the officers told Robinson “[t]here’s a thing called voyeurism [1] . . . kind of
like a peeping tom” and that if he wanted to “hang out” with someone he should
maybe give the person a call or “just knock on the door like a normal person.”
Robinson left after officers asked him to leave. 	This interaction with Robinson
1 The voyeurism “statute does not criminalize hostile intrusions of a person’s privacy interests.
Rather, it criminalizes the viewing, photographing or filming of another person, for sexual arousal
or gratification, when the person is in a place where he or she would have a reasonable expectation
of safety from casual or hostile intrusion or surveillance.” State v. Glas, 147 Wn.2d 410, 420, 54
P.3d 147 (2002) (citing RCW 9A.44.115).

No. 85428-3-I
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enabled one of the responding officers to later recognize the person in the photo
provided by M.R.’s roommate as Robinson, which led to Robinson’s arrest. Later
analysis of DNA in the rape kit taken during M.R.’s sexual-assault examination
revealed that Robinson’s DNA was included.
Following a trial, a jury convicted Robinson of second-degree rape and first-
degree burglary with sexual motivation. 	At sentencing, the trial court ruled
Robinson’s prior Pennsylvania offense of aggravated assault was comparable to
the Washington crime of third-degree assault and included it in his offender score.
The trial court imposed a standard-range sentence with community custody
provisions upon release. It also imposed a VPA of $500 and a DNA collection fee
of $100.
Robinson appeals.
II
A. 	Res Gestae Evidence
Robinson argues the trial court abused its discretion by admitting evidence
regarding his conduct in the hours prior to M.R.’s rape. 	More specifically, he
argues (1) the evidence was not admissible as res gestae and (2) the trial court
abused its discretion in failing to conduct an ER 404(b) analysis. We disagree.
Starting 	with 	Robinson’s 	first 	argument—that 	the 	evidence 	was 	not
admissible as res gestae—the trial court admitted the challenged evidence, and
denied Robinson’s motion in limine to exclude it, because it concluded that
evidence of Robinson’s activities in the hours prior to M.R.’s rape falls squarely
under the res gestate doctrine and is therefore admissible. We review that ruling

No. 85428-3-I
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for an abuse of discretion. 	State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696
(2019). A trial court abuses its discretion if “‘no reasonable person would take the
view adopted by the trial court.’” State v. Jennings, 199 Wn.2d 53, 59, 502 P.3d
1255 (2022) (quoting State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001)).
A leading treatise in Washington describes “res gestae” evidence as
including “evidence of misconduct that is close in time to the crime presently
charged and directly relevant to proving the crime presently charged.” 	5 K ARL B.
TEGLAND, W ASHINGTON P RACTICE : E VIDENCE § 404.18, at 527 (6th ed. 2016). “Also
known as the ‘same transaction’ exception, this doctrine allows admission of
evidence of other crimes or misconduct to ‘complete the story of the crime by
establishing the immediate time and place of its occurrence.’” 	State v. Luna, __
Wn.2d __, 297, 578 P.3d 273 (2025) (quoting State v. Brown, 132 Wn.2d 529, 570-
71, 940 P.2d 546 (1997)). It thus ensures “that a complete picture be depicted for
the jury.” Brown, 132 Wn.2d at 571.
Our Supreme Court has admitted evidence under the res gestae doctrine in
a variety of circumstances. In Brown, 132 Wn.2d at 574, the court admitted a rape
victim’s testimony regarding a sexual assault to rebut a defendant’s claims that a
sexual assault of another victim was consensual where the two assaults were
“markedly similar.” 	In State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981),
the court admitted under the res gestae doctrine evidence of “uncharged crimes”
in an “unbroken sequence of incidents . . . all of which were necessary to be placed
before the jury in order that it have the entire story of what transpired on that
particular evening.” 	The court explained that “[e]ach offense was a piece in the

No. 85428-3-I
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mosaic necessarily admitted in order that a complete picture be depicted for the
jury.” Id.
The trial court below admitted relevant evidence of Robinson’s conduct prior
to the rape that placed him near the time and place of the rape (he was near M.R.’s
house just a few hours prior to the rape) and also explained how police were able
to identify him as the person in the photograph obtained by M.R.’s 	roommate,
which connected Robinson to the location of the rape. 	The evidence completed
the story of the crime charged and provided the immediate context for events close
in both time and place to that crime. For these reasons, the evidence is properly
considered res gestae evidence, and the trial court did not abuse its discretion in
admitting it as such.
Lastly, Robinson also argues the res gestae doctrine should be abandoned
in Washington. As discussed above, our Supreme Court has repeatedly admitted
evidence under the res gestae doctrine in a variety of circumstances that are
relevant here. 	As recently as 2022, the court held that evidence of uncharged
sexual misconduct was properly admitted as res gestae to explain delayed
reporting in a case alleging rape of a child. State v. Crossguns, 199 Wn.2d 282,
296, 505 P.3d 529 (2022). “We are bound by the decisions of our state Supreme
Court and err when we fail to follow it.” Buck Mountain Owner’s Ass’n v. Prestwich,
174 Wn. App. 702, 716, 308 P.3d 644 (2013). Robinson’s argument on this point
thus fails.
Turning to Robinson’s second argument—that the trial court abused its
discretion in failing to conduct an ER 404(b) analysis—ER 404(b) states in relevant

No. 85428-3-I
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part, “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.” The Tegland
treatise, quoted above, explains, “[b]y time-honored tradition and case law,” ER
404(b) does not apply to res gestae evidence because (1) “misconduct closely
associated with the crime charged is simply not prior misconduct at all so ER
404(b) is out of the picture” and (2) res gestae evidence is “another exception to
the general rule that prior misconduct is inadmissible.” 	5 K ARL B. TEGLAND,
W ASHINGTON P RACTICE : E VIDENCE § 404.18, at 527 (6th ed. 2016). 	The treatise
concludes: 	“Either way, the evidence is admissible unless it is barred by some
other rule.” Id. at 50 (rev. ed. & Supp. 2025).
Our 	court 	has 	likewise 	explained 	that 	“res 	gestae 	evidence 	more
appropriately falls within ER 401’s definition of relevant evidence, which is
generally admissible under ER 402, rather than an exception to propensity
evidence under ER 404(b).” State v. Sullivan, 18 Wn. App. 2d 225, 236, 491 P.3d
176 (2021), disapproved of by Luna, 578 P.3d at 300 (internal quotation marks
omitted). In so holding, the Sullivan court relied on State v. Dillon, 12 Wn. App. 2d
133, 148, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198 (2020),
disapproved of by Luna, 578 P.3d at 300, which in turn relied on State v. Grier,
168 Wn. App. 635, 646-47, 278 P.3d 225 (2012), disapproved of by Luna, 578
P.3d at 300. 	Sullivan, 18 Wn. App. 2d at 236. 	Similarly, in Tharp, a series of
crimes were committed on the same day as the murder for which Tharp was
convicted. 	All of these other crimes were uncharged as to Tharp, but were
nevertheless admitted into evidence at trial over his objection. 96 Wn.2d at 592.

No. 85428-3-I
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Without any reference to ER 404(b), the Supreme Court agreed with this court that
these collateral crimes were properly admitted under the res gestae, or same
transaction, analysis. Id. at 594.
In his motion for reconsideration, Robinson relies on Luna to argue that the
Sullivan, Dillon, and Grier are no longer good law and, accordingly, the trial court
was required to conduct an ER 404(b) analysis even if the evidence at issue was
admissible as res gestae. Robinson misreads Luna. As Robinson notes, the court
there held, “We disapprove [Sullivan, Dillon, and Grier] to the extent that they
separate res gestae from consideration of ER 404(b).” 	578 P.3d at 300. 	But
contrary to Robinson’s argument, the court did not hold that all res gestae evidence
requires an ER 404(b) analysis. Instead, it held “Sullivan, Dillon, and Grier are all
correct that if res gestae properly applies, ER 404(b) does not bar admission of
bad acts evidence. But it is incorrect to say that this removes such evidence from
the ambit of ER 404(b) in the first place.” 578 P.3d at 300. The court also stated,
“We have continuously described res gestae as a potential exception to ER
404(b)’s ban on evidence of other bad acts.” 	Id. (emphasis added). 	And critical
here, the court held, “If the evidence is of a bad act, a proper determination of
admissibility requires considering both ER 404(b) and the exception that the
proponent claims applies.” Id. (emphasis added).
In other words, Luna holds that res gestae evidence that is a bad act
requires an ER 404(b) analysis whereas res gestae evidence that is not a bad act
does not require an ER 404(b) analysis. Here, the evidence of the acts at issue—
looking and leaning into other apartment windows—was nothing more than

No. 85428-3-I
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evidence of acts that occurred earlier that same morning that helped explain how
the police were able to identify Robinson. 	While Robinson claims this evidence
“painted [him] as a creepy, sexually dangerous man,” any risk of unfair prejudice
to Robinson could have been remedied with a limiting instruction, which Robinson
did not request. The risk of such prejudice does not turn the evidence into a “bad
act” that required an ER 404(b) analysis. 	Because ER 404(b) is not implicated
here, the trial court did not abuse its discretion, nor did it err, in failing to conduct
an ER 404(b) analysis.
B. 	Comparability Analysis at Sentencing
Robinson next argues his conviction for aggravated assault in Pennsylvania
was improperly included in his offender score at sentencing. We again disagree.
Washington’s 	Sentencing 	Reform 	Act 	(SRA) 	provides 	“[o]ut-of-state
convictions for offenses shall be classified according to the comparable offense
definitions and sentences provided by Washington law” to calculate a defendant’s
offender score. 	RCW 9.94A.525(3). 	“Comparability of a prior out of state
conviction is reviewed de novo.” State v. Sublett, 176 Wn.2d 58, 87, 292 P.3d 715
(2012). Sublett provides the two-part test for comparability:
To 	determine 	whether 	a 	foreign 	offense 	is 	comparable 	to 	a
Washington offense, we first consider if the elements of the foreign
offense are substantially similar to the Washington counterpart. 	If
so, the inquiry ends. If not, we determine whether the offenses are
factually comparable, that is, whether the conduct underlying the
foreign offense would have violated the comparable Washington
statute.
Id. (citing State v. Thiefault, 160 Wn.2d 409, 414-15, 158 P.3d 580 (2007)). Here,
as in Sublett, there is no adequate factual record of the Pennsylvania conviction

No. 85428-3-I
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so comparability must be determined based solely on the legal elements of the
crime.2
In determining legal comparability, the elements of the two crimes need not
be identical; instead, they must be “substantially similar.” In re Pers. Restraint of
Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005). As the court explained in State
v. Jordan, 180 Wn.2d 456, 465, 325 P.3d 181 (2014), “Given the legislature’s
broad purpose and the SRA’s loose point assignment, we have interpreted the
SRA 	as 	requiring 	rough 	comparability—not 	precision—among 	offenses.”
Succinctly put, “comparability analysis is not an exact science.” State v. Stockwell,
159 Wn.2d 394, 397, 150 P.3d 82 (2007).
Applying these legal principles here, the elements of the two offenses are
sufficiently comparable. 	In Pennsylvania, “[a] person is guilty of aggravated
assault if he attempts to cause serious bodily injury to another, or causes such
injury intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1). “Serious
bodily injury,” in turn, means “[b]odily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” 	18 Pa.C.S. § 2301.
The Washington statute for assault in the third degree, in turn, provides, “A person
is guilty of assault in the third degree if he or she . . . [w]ith criminal negligence,
2 The appellate record contains the information and criminal complaint but no evidentiary basis to
establish a factual comparison to Washington’s third degree assault is provided, such as a
stipulation or acknowledgement of guilt from Robinson as to any underlying facts.

No. 85428-3-I
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causes bodily harm accompanied by substantial pain that extends for a period
sufficient to cause considerable suffering.” RCW 9A.36.031(1)(f).
As can be seen from the text of the statutes, the crimes are “substantially
similar” and “roughly comparable.” 	Just as Washington requires assaultive
conduct that “causes bodily harm accompanied by substantial pain that extends
for a period sufficient to cause considerable suffering,” Pennsylvania requires
conduct that causes “bodily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. While not identical,
these elements are “roughly comparable.”
Furthermore, the mens rea elements of the two crimes are comparable.
The Pennsylvania statute requires that the defendant act “intentionally, knowingly
or recklessly.” 18 Pa.C.S. § 2702(a)(1). The Washington statute requires “criminal
negligence,” 	RCW.9A.36.031(1)(f), 	and 	RCW 	9A.08.010(2) 	defines 	that
requirement as follows: “When a statute provides that criminal negligence suffices
to establish an element of an offense, such element also is established if a person
acts intentionally, knowingly, or recklessly.” RCW 9A.08.010(2). Thus, the mens
rea elements are also legally comparable.
Robinson argues the statutes are not legally comparable because the
Pennsylvania statute includes “attempt” and the Washington statute does not, but
this argument also fails. 	In State v. Elmi, 166 Wn.2d 209, 215, 207 P.3d 439
(2009), the court explained the term “assault” is “an element of the crime” of assault
and is defined by common law to include “(1) an unlawful touching (actual battery);

No. 85428-3-I
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(2) an attempt with unlawful force to inflict bodily injury upon another, tending but
failing to accomplish it (attempted battery); and (3) putting another in apprehension
of harm.” 	Applying the second prong of this definition, the Washington assault
statute, like the Pennsylvania statute, includes attempt. The trial court did not err
when it included the Pennsylvania conviction in Robinson’s offender score at
sentencing.
C. 	Community Custody Condition Concerning Geographic Boundaries
Robinson 	next 	argues 	the 	community 	custody 	condition 	concerning
geographic 	boundaries 	imposed 	by 	the 	trial 	court 	at 	sentencing 	was
unconstitutionally vague. 	That condition requires that Robinson “[r]emain within
geographic boundaries, as set forth in writing by the Department of Correction
Officer or as set forth with SODA [Stay Out of Drug Area] order.” 	Our recent
opinion in State v. Lundstrom, __ Wn. App. 2d __, 572 P.3d 1243, 1245-46 (2025),
holds 	that 	an 	identical 	community 	custody 	condition 	imposing 	geographical
boundaries, as mandated by RCW 9.94A.704(3)(b), is not unconstitutionally
vague. Applying Lundstrom here, Robinson’s contrary argument fails.
D. 	VPA and DNA Collection Fee
Lastly, Robinson argues remand is necessary to strike the VPA and DNA
collection fee from his judgment and sentence because the legislature amended
the VPA statute to prohibit imposition of the VPA on indigent defendants as of July
1, 2023 and amended the DNA collection fee statute to allow waiver of the DNA
collection fee upon motion of the offender also as of July 1, 2023. 	Because
Robinson has made a sufficient showing of indigency and the State does not

No. 85428-3-I
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oppose his request, we remand for the trial court to strike the VPA and DNA
collection fee from Robinson’s judgment and sentence. See State v. Ellis, 27 Wn.
App. 2d 1, 16, 530 P.3d 1048 (2023) (“Although [the] amendment [to RCW
7.68.035] will take effect after Ellis’s resentencing, it applies to Ellis because this
case is on direct appeal.”).
In all other respects, we affirm.
WE CONCUR: