                                                                        FILED
                                                                   FEBRUARY 28, 2017
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 33960-2-111
                     Respondent,              )
                                              )
      V.                                      )
                                              )
JOHNNA D. SMITH,                              )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       FEARING, C.J. -A Spokane County jury convicted Johnna Smith of second

degree robbery of headphones from a pharmacy store. On appeal, Smith assigns error to

evidentiary rulings by the trial court. She also challenges the sufficiency of evidence for

her conviction. We reject her arguments.

                                          FACTS

       On July 30, 2014, Rite Aid Pharmacy asset protection employees Matthew

McDaniels and John Reynolds worked in the evening at a north Spokane pharmacy store.

Around 5:45 p.m., they monitored, from a surveillance room's cameras, high theft areas

inside the store. On one of the cameras, the duo observed a female grab headphones, a

high theft product. After taking the headphones, the lady paced the aisle and then ambled

to coolers in the store, where she selected a bottle of water. Next she walked to the candy
    No. 33960-2-III
    State v. Smith


    aisle, near the front of the store, where she concealed the headphones in a large bag.

           Once Matthew McDaniels espied the lady conceal the headphones, he left the

    surveillance room and positioned himself near the front door of the store. John Reynolds

    maintained observation of the woman through the camera system.

           The woman paid for the bottled water, but did not pay for the headphones. Once

    the woman passed through the security system that detects unpaid merchandise, Matthew

    McDaniels approached the woman, identified himself as a Rite Aid asset protection

    employee, and asked her for the merchandise for which she may have neglected to pay.

    The woman lowered her head and tried to exit the door, but McDaniels blocked her

    egress. The lady then used her hands, pushed McDaniels, and exclaimed: "You can't

    touch me," "You can't stop me," and "Let me go." Report of Proceedings (RP) at 77.

    After failing to shake McDaniels, the woman yelled for help, pushed a set of sliding

    doors off their hinges, and fled outside.

           When the woman departed the Rite Aid pharmacy, a male exited an older Honda

    parked outside the store. The man approached Matthew McDaniels and shouted

    profanities. McDaniels identified himself, and the man threw two punches at him. The

    first punch missed, but the second blow struck McDaniels' chest. The male yelled to the

    lady to enter the car and "go, go, go." RP at 79. The female drove away, and the man

    escaped on foot. John Reynolds exited the building and pursued the Honda on foot.




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No. 33960-2-III
State v. Smith


McDaniels noted the Honda's license plate number and called 911. The woman drove

near the fleeing man, and he entered the vehicle.

      At 6:43 p.m., on July 30, Officer Michele Kernkamp responded to the Spokane

Rite Aid store in response to Matthew Mc Daniels' emergency call. Officer Kernkamp

searched for the name of the owner of the Honda on her patrol car's computer by

referencing the Honda license plate number. The search unearthed Corey Knudsvig as

registered owner. Kernkamp further searched, through her computer, to determine if

Spokane police had earlier contact with Knudsvig. Kernkamp discovered that Officer

Craig Hamilton earlier interfaced with Knudsvig. On April 7, 2014, Officer Hamilton

stopped a 2003 Chevrolet with four individuals inside. Two of the passengers were

Corey Knudsvig and Johnna Smith.

       On the evening of July 30, Officer Michelle Kernkamp retrieved a photograph of

Johnna Smith, perhaps from the Department of Licensing, from Kernkamp's computer.

Kernkamp, while at the Rite Aid Store, compared the photograph of Johnna Smith with

the store video. Officer Kernkamp could not discern if the lady in the photograph was

the same person shown in the video. Officer Kernkamp journeyed to Corey Knudsvig's

residence, but did not find Knudsvig present.

      On a later date, Spokane Detective Jerry Hensley met with Matthew McDaniels

and John Reynolds at the Rite Aid store. Hensley showed McDaniels a photomontage.




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No. 33960-2-III
State v. Smith


McDaniels picked the photo of Johnna Smith from the photomontage, but Reynolds

could not identify anyone from the photographs.

       Detective Jerry Hensley interacted twice with Johnna Smith in 2011, with each

interaction lasting fifteen minutes. Detective Hensley maintained that, through this

contact, he became familiar with Smith's facial and body features. While at the Rite Aid

store, Hensley watched the surveillance tape. He identified Smith on the video tape

because of the two earlier interactions and his creation of the photomontage in the

investigation of the Rite Aid theft.

                                       PROCEDURE

       The State of Washington charged Johnna Smith with second degree robbery as a

result of the headphones theft at the Rite Aid pharmacy on July 30, 2014.

       Johnna Smith moved in limine to exclude evidence of her contact in 2014 with

Officer Craig Hamilton while with Corey Knudsvig. During a pretrial hearing, Smith

clarified that she also sought exclusion of testimony by Detective Jerry Hensley of his

2011 contacts with Smith and his identification of her from the surveillance video. The

State told the trial court that Detective Hensley's 2011 interaction with Smith was during

Smith's role as a confidential informant, but the State agreed not to mention the reason

for Hensley's earlier contact. The trial court ruled:

              As far as the testimony of Detective Hensley is concerned, it looks
       like he was the one [who was] responsible were [sic] putting together the
       photo montage that a witness used to identify Ms. Smith. It also appears

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    No. 33960-2-III
    State v. Smith


           that he has had some contact with her in the past. Maybe she was working
           as an informant or something of that nature. The argument is that the
           prejudice of that relationship outweighs the probative value.
                  Here, identity is an issue. It looks like he reviewed the video,
           possibly used that to put together the photo montage after he realized who
           he thought the person in that video depicted. It is prejudicial, but the
           relevance outweighs the probative-or, the prejudicial value because
           otherwise any person who might have had contact with law enforcement in
           the past would be immune from having that person testify.

    RP at 32-33. The trial court denied Smith's motion in limine.

           During trial, Matthew McDaniels identified the woman who committed the

    robbery as the woman sitting at defense counsel's table, Johnna Smith. McDaniels stated

    he came within inches of Smith during their tussle at the Rite Aid store.

           l\fatthew McDaniels, during testimony, could not recall on which day of the week

    the theft occurred, the temperature that day, what he ate for lunch that day, or what type

    of shoes the female robber wore. McDaniels also testified as follows:

                  Q (By Mr. Ames [Defense counsel]) Are you testifying to this jury
          that you could not be mistaken about your selection?
                  A I testified that I could be mistaken about some things but the fact
          that I am testifying that that is Ms. Smith that I encountered that day, I'm
          100 percent.
                  Q So you're a hundred percent absolutely positive that it was Ms.
          Smith?
                  A Correct.

    RP at 115.

          During cross-examination of Matthew McDaniels by Johnna Smith's counsel,



I   McDaniels agreed that the woman in the Rite Aid store surveillance video bore a marking



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No. 33960-2-111
State v. Smith


on the back of her neck. Defense counsel then attempted to establish that Smith lacked

this marking at least at the time of trial. The following colloquy occurred:

                Q (By Mr. Ames [Defense counsel]) Now, what ifl told you that
        my client, Ms. Smith, has no similar mark on the back of her neck?
                MR. NAGY [State's counsel]: Objection, Your Honor.
                THE COURT: Sustained. Facts not in evidence.
                MR. AMES: Your Honor, I'd like my client to be able to approach
        the witness and show him the back of her neck.
                MR. NAGY: Objection, Your Honor. Relevance. It's a year and a
        half after the fact.
                THE COURT: Overruled.
                MR. AMES: That means you can.
                THE DEFENDANT: Oh.
                MR. AMES: I'd like to approach, Your Honor.
                THE COURT: Yes. You can go ahead and have a seat.
                MR. AMES: No. I'd like her to stay for a minute, ifl could.
                THE COURT: Go ahead.
                Q (By Mr. Ames) I'm going to show you what's been marked
        defense Exhibit 103. I know you haven't seen that before.
                MR. AMES: Go ahead and hold your hair up.
                Q (By Mr. Ames) But do you recognize it?
                A Yes. It could be the same person.
                Q Doesn't it appear to be a picture of Ms. Smith?
               MR. AMES: Let him look at your head. Go ahead and look this
        way.
                A. It could be, yes.

RP at 109-10. We are not convinced this record shows Smith lacked a mark on the day

of trial.

        Ajury convicted Johnna Smith of robbery in the second degree. The trial court

sentenced her to five years· and three months of confinement.




                                             6
No. 33960-2-III
State v. Smith


                                 LAW AND ANALYSIS

       On appeal, Johnna Smith argues that the trial court errantly allowed Detective

Jerry Hensley to testify, in violation of ER 402 and 404(b), about his earlier contacts with

Smith. Smith also contends that the State failed to present sufficient evidence to support

her conviction for second degree robbery. We disagree with both arguments.

                                 Jerry Hensley Testimony

       Johnna Smith contends the trial court erred by denying her motion in limine to

preclude Detective Jerry Hensley from testifying about his earlier contacts with Smith.

She claims the testimony violated ER 402 and 404(b) because the evidence was

irrelevant, the danger of unfair prejudice outweighed any probative value of the

testimony, and the testimony covered inadmissible evidence of prior crimes. The State

responds that the trial court did not abuse its discretion when admitting Detective

Hensley's testimony because the testimony did not reference Smith committing wrongs

and, even if Hensley's comments referred to other wrongs, the State offered the

testimony for identity and not to show Smith acted in conformance with earlier misdeeds.

We address separately the arguments forwarded under each evidence rule.

                                          ER402

      Johnna Smith focuses her assignment of error with regard to evidence rulings on

ER 404(b). Nevertheless, she also mentions violations of ER 402 and 403.

      A discussion of ER 402 begins with ER 401. ER 401 declares:

                                             7
No. 33960-2-III
State v. Smith


              "Relevant evidence" means 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.

In tum, ER 402 reads:

               All relevant evidence is admissible, except as limited by
       constitutional requirements or as otherwise provided by statute, by these
       rules, or by other rules or regulations applicable in the courts of this state.
       Evidence which is not relevant is not admissible.

       This court reviews relevance evidentiary rulings for manifest abuse of discretion.

State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). Discretion is abused only when

no reasonable person would have decided the issue as the trial court did. State v. Rice,

110 Wn.2d 577, 600, 757 P.2d 889 (1988).

       Relevance presents a very low bar. Mutual ofEnumclaw Ins. Co. v. Gregg

Roofing, Inc., 178 Wn. App. 702, 729, 315 P.3d 1143 (2013). To be relevant, evidence

must meet two requirements: (1) the evidence must have a tendency to prove or disprove

a fact (probative value), and (2) that fact must be of consequence in the context of the

other facts and the applicable substantive law (materiality). Davidson v. Metropolitan

Seattle, 43 Wn. App. 569,573, 719 P.2d 569 (1986). The relevancy of evidence depends

on the circumstances of each case and the relationship of the facts to the ultimate issue.

Chase v. Beard, 55 Wn.2d 58, 61,346 P.2d 315 (1959), overruled on other grounds, In re

Marriage of Brown, 100 Wn.2d 729,675 P.2d 1207 (1984). Facts tending to establish a

party's theory of the case will generally be found to be relevant. State v. Mak, 105

                                               8
No. 33960-2-III
State v. Smith


Wn.2d 692, 703, 718 P.2d 407 (1986).

       Johnna Smith argues that Detective Jerry Hensley's testimony about earlier

encounters with Smith provided no relevant information to the jury with respect to the

theft at the Rite Aid store. We disagree. Identity of the thief was the primary issue at

trial. Detective Hensley's earlier interactions with Smith tended to corroborate his

identification of her in the Rite Aid surveillance video. Even though the two 2011

encounters only totaled thirty minutes, the contact supported his ability to identify Smith

from the video.

                                          ER403

       ER 403 declares:

              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.

When administering ER 403, we recognize that nearly all evidence worth offering in a

contested case will prejudice one side or the other. Carson v. Fine, 123 Wn.2d 206, 224,

867 P .2d 610 ( 1994 ). Evidence is not rendered inadmissible under ER 403 just because it

may be prejudicial. Carson v. Fine, 123 Wn.2d at 224. Under ER 403, the court is not

concerned with ordinary prejudice. Carson v. Fine, 123 Wn.2d at 224.

      Courts variously define "unfair prejudice" for purposes of ER 403. Such prejudice

results from evidence of scant or cumulative probative force, dragged in by the heels for


                                             9
No. 33960-2-III
State v. Smith


the sake of its prejudicial effect. United States v. Roark, 753 F.2d 991,994 (11th Cir.

1985). In determining prejudice, the linchpin word is "unfair." State v. Rice, 48 Wn.

App. 7, 13, 737 P.2d 726 (1987). Washington cases agree that unfair prejudice is caused

by evidence likely to arouse an emotional response rather than a rational decision among

the jurors. Carson v. Fine, 123 Wn.2d at 223; Lockwood v. AC&S, Inc., 109 Wn.2d 235,

257, 744 P.2d 605 (1987); State v. Cameron, 100 Wn.2d 520, 529, 674 P.2d 650 (1983).

      Under ER 403, the burden of showing prejudice is on the party seeking to exclude

the evidence. Carson v. Fine, 123 Wn.2d at 225. A presumption favors admissibility

under ER 403. Carson v. Fine, 123 Wn.2d at 225. Because of the trial court's

considerable discretion in administering ER 403, reversible error is found only in the

exceptional circumstance of a manifest abuse of discretion. State v. Gould, 58 Wn. App.

175, 180, 791 P.2d 569 (1990).

      Johnna Smith argues that Detective Jerry Hensley's testimony only created an

extraordinarily prejudicial implication that she was a person who had frequent run-ins

with a detective whose work was focused on major crimes. We disagree. Nothing in

Hensley's testimony implied that Smith was investigated or responsible for wrongdoing.

As the State emphasizes, Hensley could have encountered Smith at a social or church

function. Smith assumes a juror's emotions are aroused when the juror hears that a

defendant had earlier interactions with law enforcement. Nevertheless, the jury never

heard the context of Smith's contact with Hensely, leaving the testimony mundane.

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No. 33960-2-III
State v. Smith


Although evidence of some law enforcement interactions may be prejudicial if the officer

relates details, the circumstances in this appeal show little, if any, prejudice.

                                          ER 404(b)

       Washington's ER 404(b) reads, in relevant part:

               Other Crimes, Wrongs, or Acts. 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.

(Boldface omitted.) A trial court's interpretation of ER 404(b) is a question of law that

this court reviews de novo. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).

ER 404(b) prohibits evidence of past misdeeds solely to prove a defendant's criminal

propensity. State v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008 (2006). Evidence of

prior bad acts is presumed inadmissible, and any doubts as to admissibility are resolved

in favor of exclusion. State v. Vy Thang, 145 Wn.2d 630,642, 41 P.3d 1159 (2002). ER

404(b) precludes evidence of defendant's other bad acts to show the defendant's

propensity for criminal activity. When demonstrated, however, such evidence may be

admissible for other purposes such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. State v. Powell, 126 Wn.2d

244,258, 893 P.2d 615 (1995).

       Johnna Smith contends the testimony by Detective Jerry Hensley violated ER

404(b ). Detective Hensley testified that in 2011 he had personal contact with Smith two

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No. 33960-2-III
State v. Smith


times, each occasion lasting fifteen minutes. Through those contacts, Hensley became

familiar with Smith's facial and body features. Detective Hensley testified that he

identified Smith on the surveillance tape because of his contacts with her in 2011 and his

involvement in creating the photomontage in this case. Even if a tenuous connection

existed between contact with a detective and earlier bad acts, the trial court properly

admitted Detective Hensley's testimony as proof of identity. The State offered the

testimony to prove identity, a key issue at trial, not propensity to commit a crime.

                                    Sufficient Evidence

       Johnna Smith contends the State failed to provide sufficient evidence to support

her conviction for second degree robbery. The criminal code defines "robbery" as:

               A person commits robbery when he or she unlawfully takes personal
       property from the person of another or in his or her presence against his or
       her will by the use or threatened use of immediate force, violence or fear of
       injury to that person or his or her property or the person or property of
       anyone. Such force or fear must be used to obtain or retain possession of
       the property, or to prevent or overcome resistance to the taking; in either of
       which cases the degree of force is immaterial. Such taking constitutes
       robbery whenever it appears that, although the taking was fully completed
       without the knowledge of the person from whom taken, such knowledge
       was prevented by the use of force or fear.

RCW 9A.56.190.

       In her brief, Johnna Smith examines the legal standard for review of a sufficiency

of the evidence challenge and then asserts the State failed to meet its burden at trial. She

does not, however, isolate what element or elements of second degree robbery the State


                                             12
No. 33960-2-111
State v. Smith


purportedly failed to prove. Thus, we encounter difficulty in analyzing her contention.

       Johnna Smith attacks the credibility of Detective Jerry Hensley's identification of

her, criticizes Matthew McDaniels as unable to recall details of his encounter with her,

critiques McDaniels because of his mistaking Smith's height, emphasizes that she lacked

a mark on her neck at the time of trial, and describes the Rite Aid surveillance video as

grainy. We consider these assaults on the State's evidence to go to the weight of the

evidence for the jury to review, not the sufficiency of the evidence. The State presented

positive identifications from both McDaniels and Hensley as to Smith being the thief.

       Evidence is sufficient if a rational trier of fact could find each element of the crime

beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980).

Both direct and indirect evidence may support the jury's verdict. State v. Brooks, 45 Wn.

App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor

of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). The State

assumes the burden of proving otherwise unnecessary elements of the offense when such

elements are included without objection in a jury instruction. State v. Willis, 153 Wn.2d

366, 374-75, 103 P.3d 1213 (2005). Only the trier of fact weighs the evidence and judges

the credibility ofwitnesses. State v. Carver, 113 Wn.2d 591,604, 781 P.2d 1308, 789

P .2d 306 ( 1989).

       Relying on State v. Vasquez, 178 Wn.2d 1,309 P.3d 318 (2013), Johnna Smith

asserts that we must review whether Matthew McDaniel's certainty of identification was

                                             13
No. 33960-2-III
State v. Smith


reasonable and hold that it was not. In Vasquez, a store security guard found a forged

social security card and permanent resident card in the defendant's wallet when searching

the defendant, a suspected shoplifter. Our Supreme Court reversed two convictions of

forgery because the State failed to prove sufficient evidence of intent. The only evidence

of intent to defraud was the defendant's possession of the forged cards. Our Supreme

Court held that inferring intent from possession relieved the State of its burden to prove

all elements of the crime.

       State v. Vasquez lacks relevance to this appeal. Vasquez involved the sufficiency

of evidence regarding intent to defraud, not sufficiency of evidence of the identity of a

shoplifter.

                                     CONCLUSION

       We affirm the conviction of Johnna Smith for second degree robbery.

       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.


                                                  ~
                                              Fearing~t
                                                                     ~
WE CONCUR:


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