      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                         ;                                         O
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                                                    No. 73593-4-1
                      Respondent,                                                          1


                                                    DIVISION ONE
       v.
                                                                                           VJ3

ADAN MANUEL CORTES-GONZALEZ,                        UNPUBLISHED OPINION                    sr



                      Appellant.             )      FILED: October 3. 2016

       Spearman, J. — Absent a manifest abuse of discretion, we will not disturb

a trial court's decision to admit evidence. Adan Cortes-Gonzalez appeals his

conviction of one count each of second and fourth degree assault. He argues

that the trial court abused its discretion and violated his right to a fair trial by

admitting a photograph taken at the scene of the crime. Because the trial court's

decision to admit the photograph was not manifestly unreasonable, we affirm.

                                         FACTS


       Many people were on the shore of the Snoqualmie River on a sunny

summer afternoon. Cortes-Gonzalez and his wife were at the river taking photos.

Michael Noonan was helping his granddaughter, Maeva Nolan, carry a kayak

from the parking area to the river.

       Cortes-Gonzalez believed that the kayak struck his wife and he yelled at

Noonan. Noonan denied hitting anyone and told Cortes-Gonzalez to leave them
No. 73593-4-1/2


alone. The dispute escalated into a physical altercation in which Noonan

sustained significant injuries. Bystanders called the police and indicated that

Cortes-Gonzalez was the instigator. Cortes-Gonzalez was arrested and charged

with one count each of second and fourth degree assault.

       At trial, Noonan, Nolan, and two witnesses testified for the State. They

each stated that a man approached Noonan, threw the first punch, held Noonan

down and hit him while he was in the water, punched Nolan, and kicked Noonan

when he tried to get up. One of the State's witnesses identified Cortes-Gonzalez

in court as the man involved in the fight. Noonan stated that he did not get a

good look at the person who hit him. Nolan described the aggressor as a big man

with black hair. Another witness described the person involved as a large man in

a red shirt.

       The State submitted into evidence a video taken by one of the witnesses.

The video does not show the beginning of the fight but is otherwise consistent

with the events described by the State's witnesses. In the video, which was taken

from about 40 feet away, the aggressor appears to be a man with dark hair

wearing khaki shorts and a maroon shirt with a distinctive logo. Over Cortes-

Gonzalez's objection, the trial court also admitted a photograph taken at the

scene of the crime. The photograph, which was taken from only a few feet away,

shows Cortes-Gonzalez wearing khaki shorts and a maroon shirt with a

distinctive logo.

        Cortes-Gonzalez's wife testified that Noonan provoked her husband, threw

the first punch, and hit Cortes-Gonzalez repeatedly during the fight. She stated
No. 73593-4-1/3


that Cortes-Gonzalez did not hit Nolan and she did not see him kick Noonan. In

closing argument, Cortes-Gonzalez argued that he struck Noonan and Nolan in

self-defense.

      The jury convicted Cortes-Gonzalez as charged. He appeals.

                                   DISCUSSION


      Cortes-Gonzalez argues that the trial court erred in admitting the

photograph taken at the scene of the crime. We review a trial court's evidentiary

decisions for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d

967 (1999). The trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds, jd. (citing State v. Stenson, 132

Wn.2d 668, 701, 940 P.2d 1239 (1997)). A decision is manifestly unreasonable if

it "'adopts a view that no reasonable person would take.'" Salas v. Hi-Tech

Erectors, 168 Wn.2d 664, 669, 230 P.3d 583 (2010) (quoting In re Pers.

Restraint of Duncan, 167 Wn.2d 398, 402-03, 219 P.3d 666 (2009)).

       In general, evidence is admissible if it is relevant. ER 402. 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 or less probable than it

would be without the evidence. ER 401. But relevant evidence may be excluded

if it poses a danger of unfair prejudice that substantially outweighs its probative

value. Stenson, 132 Wn.2d at 702 (citing ER 403). Evidence may be unfairly

prejudicial when it excites an emotional rather than a rational response or when it

promotes erroneous inferences. City of Auburn v. Hedlund, 165 Wn.2d 645, 654-

55, 201 P.3d 315 (2009) (citations omitted). The trial court has broad discretion in
No. 73593-4-1/4


weighing the probative value versus the unfair prejudice of evidence. Stenson,

132 Wn.2d at 702 (citing State v. Rivers. 129 Wn.2d 697, 710, 921 P.2d 495

(1996)).

       At trial, the State offered a photograph into evidence to establish identity

and prove that Cortes-Gonzalez was the man in the video. In the photo, Cortes-

Gonzalez is standing near the river in front of an ambulance. He is wearing khaki

shorts and a maroon shirt. His hands are behind his back. A person wearing a

dark shirt, khaki pants, and what appears to be a gun in a belt holder is partially

visible. The person is standing one to two feet behind and to the side of Cortes-

Gonzalez.


       Cortes-Gonzalez objected that the photo was unfairly prejudicial because

it was taken at the time of his arrest. He also questioned the photo's relevance.

The trial court rejected Cortes-Gonzalez's arguments and admitted the photo.

The trial court ruled that, since the State had the burden to prove identity and

neither of the victims identified Cortes-Gonzalez, the photo was relevant to

identity. The court noted that the photo did not depict Cortes-Gonzalez with

police officers or police cars.

       On appeal, Cortes-Gonzalez asserts that the photograph should have

been excluded under ER 403 because it posed a danger of unfair prejudice that

substantially outweighed its probative value. He argues that the photograph was

unfairly prejudicial because it shows him standing in front of an ambulance with

his hands behind his back and a person who appears to be an armed police
No. 73593-4-1/5


officer standing nearby. Relying on State v. Rivers. 129 Wn.2d 697, 921 P.2d

495 (1996), Cortes-Gonzalez also argues that the photograph was not relevant.

       In Rivers, the trial court admitted a booking photograph of the defendant,

jd. at 710. The trial court ruled that defense counsel had indicated in opening

argument that identity would be at issue and the photo was relevant to that issue.

Id. The trial court also ruled that any prejudice was minimal since the jury knew

the defendant had been arrested. Id. at 711. The Supreme Court upheld the

ruling. \± at 712.

       Cortes-Gonzalez argues that in this case, unlike Rivers, defense counsel

did not indicate that he intended to challenge identity. He argues that, because of

this distinction, identity was not at issue in the present case and the photo was

not relevant. He is mistaken.

       Rivers does not stand for the proposition that evidence is only relevant to

establish identity in the circumstances of that case. Rather, Rivers illustrates the

proper inquiry for determining whether evidence is admissible under ER 403.

Like the Rivers court, the trial court in this case considered whether the evidence

was relevant and weighed its relevance against the danger of unfair prejudice.

       In this case, the trial court concluded that the photograph was relevant

because the State had the burden of proving identity and neither of the victims

had identified Cortes-Gonzalez. The trial court also considered the risk of unfair

prejudice and noted that there are no police cars or uniformed police officers in
the photo. The trial court's decision is based on proper grounds. And the decision
is not manifestly unreasonable because a reasonable person could conclude that
No. 73593-4-1/6


any danger of unfair prejudice from the photograph did not substantially outweigh

its relevance. There was no abuse of discretion.

       Furthermore, even if the trial court erred, the error was harmless. An

erroneous decision to admit evidence is grounds for reversal only if, within

reasonable probabilities, the error materially affected the outcome of the trial.

State v. Evervbodvtalksabout, 145 Wn.2d 456, 468-69, 39 P.3d 294 (2002)

(citing State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). To

assess whether the error was harmless, we measure the admissible evidence of

Cortes-Gonzalez's guilt against the prejudice, if any, caused by the photograph.

Bourgeois, 133 Wn.2d at 403. Measuring the testimony of the State's witnesses

and the video evidence against any prejudicial effect from the photograph, we

conclude that it is not reasonably probable that the outcome of the trial would

have been different had the photo not been admitted.

       Affirmed.




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WE CONCUR:
