                                                                        •   i -, •




                                                                                     O' \J "*

    IN THE COURT OF APPEALS OF THE STATE OpvVXsHINGTON
WANDA MONTGOMERY, personal
representative of the Estate of the              No. 73447-4-1
deceased, DESHAWN MILLIKEN,
                                                 DIVISION ONE
                      Respondent,
                                                 UNPUBLISHED OPINION
                and


DESTINY MILLIKEN.f the sister of the
deceased, DESHAWN MILLIKEN,

                      Plaintiff,




BREWHAHA BELLEVUE, LLC, d/b/a
MUNCHBAR, a Washington Limited
Liability Company, and KEMPER
DEVELOPMENT COMPANY, a
Washington Corporation,

                      Appellants.                FILED: August 8, 2016



       Trickey, A.C.J. —The estate of DeShawn Milliken successfully sued Brewhaha,

LLC ("Munchbar") for wrongful death, claiming DeShawn's daughter, Ta'riyah Smith-

Milliken, as a statutory beneficiary. Munchbar contends the trial court erred when it

concluded on summary judgment that Ta'riyah's birth certificate and an

acknowledgment of paternity from Arizona establish paternity for purposes of the

wrongful death beneficiary statute. It also argues the trial court abused its discretion

when it excluded evidence of DeShawn's character and failed to provide adequate jury

instructions.

       f The appellants have filed a motion to withdraw respondent Destiny Milliken as
a party from the appeal. The respondents have filed a response and have no
objections. Accordingly, the appellants' motion is granted.
No. 73447-4-1/2




          Because the acknowledgment of paternity and Ta'riyah's birth certificate are

presumptively valid, we grant them full faith and credit and conclude they establish

DeShawn's paternity for purposes of the wrongful death beneficiary statute. We further

conclude the trial court did not abuse its discretion when it excluded evidence of

DeShawn's character, nor did the court provide any erroneous jury instructions. We

affirm.


                                           FACTS

          The Munchbar was a popular sports bar in Bellevue, Washington. On the night

of December 23, 2012, DeShawn Milliken and his sister Destiny went to the Munchbar

to celebrate a friend's birthday. The crowd at the Munchbar was larger than usual

because the Seattle Seahawks had beaten the San Francisco 49ers the same day, and

Seahawks players were known to occasionally attend the Munchbar. Despite the

increased attendance, Munchbar had only five or six security officers present when

typically they required eleven or twelve for large crowds.

          Munchbar admitted several people into the club without checking their

identification to verify they were over the age of 21 and without checking for weapons.

One person who entered was Ja'Mari Jones, who was 19 years old and had a loaded

handgun. Destiny1 knew Jones and believed he had burglarized her mother's home

and stolen $100,000 from DeShawn. A fight broke out between DeShawn and Jones.




       1 Because Destiny Milliken, DeShawn Milliken, and Ta'riyah Smith-Milliken share
similar last names, we refer to them by their first names to avoid confusion.
                                           -2-
No. 73447-4-1/3



DeShawn's friend Louis Holmes also attacked Jones. Jones fired four or five shots,

killing DeShawn and wounding two others.

      In November 2013, DeShawn's estate and Destiny sued Munchbar. Among the

plaintiffs' other claims, DeShawn's estate sought damages for his wrongful death,

claiming DeShawn's daughter Ta'riyah Smith-Milliken as a statutory beneficiary.

Munchbar moved for summary judgment, arguing that DeShawn's estate had no

qualifying statutory wrongful death beneficiary as defined by RCW 4.20.020. Munchbar

contended that Ta'riyah was not DeShawn's "child" for purposes of the statute.

      Indeed, DeShawn is not Ta'riyah's biological father, nor did he adopt her.

DeShawn dated Ta'riyah's mother, Denise Gilbert, during college in Arizona. They

eventually separated but remained friends. DeShawn moved from Arizona to Atlanta,

Georgia in late 2005. Gilbert became pregnant with Ta'riyah in early 2006, butthe
father died before she was born. Ta'riyah was bom in December 2006. In February

2007, DeShawn began visiting Gilbert and Ta'riyah every month or every other month.
He eventually moved back to Arizona before Ta'riyah's first birthday in December 2007.
DeShawn and Gilbert began dating again, but they separated in 2009.

       During this period, Ta'riyah considered DeShawn to be herfather and called him
"dad." CP at 1915. After Gilbert and DeShawn separated, Deshawn told Gilbert he still

"want[ed] to be in [Ta'riyah's] life." CP at 1915. Gilbert told Deshawn "Don't come in
and out of her life. If you're going to be here, then let's be here, let's try to do adoption,
do what we need to do." CP at 1915. They developed a schedule where DeShawn

would pick up Ta'riyah from daycare or preschool on Mondays, Wednesdays, and
Fridays, and she would stay with him those nights. This continued until DeShawn
                                            -3-
No. 73447-4-1/4



moved to Seattle in late 2011. After DeShawn moved, he brought Ta'riyah to Seattle

many times to visit his family.

        In 2012, DeShawn and Gilbert created a plan for her and Ta'riyah to move to

Seattle. Gilbert believed moving to Seattle to be near DeShawn would be beneficial to

Ta'riyah's well-being. Before moving, DeShawn and Gilbert contacted the Arizona

Department of Health Services Office of Vital Records (the Department) to discuss

DeShawn's desire to adopt Ta'riyah. Gilbert testified that the Department informed

them that the best way to secure DeShawn's paternity over Ta'riyah would be for both

him and Gilbert to appear and sign an acknowledgment of paternity.

        On August 3, 2012, Gilbert and DeShawn signed an acknowledgment of

paternity form in front of a witness at the Department. In accordance with the

acknowledgment, the State of Arizona issued Ta'riyah an amended birth certificate

naming DeShawn as her father. The birth certificate indicates it was issued on August

6,2012.

        Relying on the acknowledgment of paternity and the birth certificate from

Arizona, the trial court denied Munchbar's motion for summary judgment and held that

Ta'riyah qualified as a statutory beneficiary for DeShawn's wrongful death claim.

Following a 9-day jury trial, the jury found in favor of the plaintiffs and awarded

DeShawn's estate $3.7 million and Destiny $520,000. Munchbar appeals.

                                        ANALYSIS


   I.   Standard of Review

        We review summary judgment orders de novo, engaging in the same inquiry as

the trial court. Michak v. Transnation Title Ins. Co.. 148 Wn.2d 788, 794-95, 64 P.3d 22
No. 73447-4-1/5



(2003). Summary judgment is proper if, viewing the facts and reasonable inferences in

the light most favorable to the nonmoving party, no genuine issues of material fact exist

and the moving party is entitled to judgment as a matter of law. CR 56(c); Michak. 148

Wn.2d at 794-95. The parties agree there is no genuine issue of material fact. The sole

legal question is whether Ta'ryah qualifies as a statutory beneficiary to sustain

DeShawn's wrongful death lawsuit.

       We will reverse a trial court's evidentiary rulings only upon a showing of abuse of

discretion. Subia v. Riveland. 104 Wn. App. 105, 113-14, 15 P.3d 658 (2001). "Atrial

court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or untenable reasons." In re Marriage of Littlefield. 133 Wn.2d 39,

46-47, 940 P.2d 1362 (1997).

   II. Whether Ta'riyah qualifies as a statutory beneficiary under RCW 4.20.020

       The main issue in this appeal is whether Ta'riyah qualifies as a statutory

beneficiary to sustain DeShawn's wrongful death claim. We conclude Ta'riyah's birth
certificate and acknowledgment of paternity establish DeShawn's paternity for purposes

of the beneficiary statute.

       The wrongful death statute authorizes the personal representative ofa decedent
to seek damages from the person who caused the death. But a wrongful death action
may only be sustained on behalf ofspecific beneficiaries of the decedent. The
beneficiary statute provides that every wrongful death action "shall be for the benefit of
the wife, husband, state registered domestic partner, child or children, including

stepchildren, of the person whose death shall have been so caused." RCW 4.20.020.


                                          -5-
No. 73447-4-1/6



      Washington courts have strictly construed the list of beneficiaries in RCW

4.20.020, "extending] the literal scope of such statutes only to protect beneficiaries

'clearly contemplated by the statute.'" Masunaqa v. Gapasin. 57 Wn. App. 624, 631,

790 P.2d 171 (1990) (quoting Roe v. Ludtke Trucking. Inc., 46 Wn. App. 816, 819, 732

P.2d 1021 (1987). Thus, the statute's designation of "child or children, including

stepchildren" only contemplates "natural or adopted children of the decedent." Armiio v.

Wesselius. 73 Wn.2d 716, 719, 440 P.2d 471 (1968). Even a "parent-child like"

relationship is insufficient to satisfythe statutory beneficiary requirement for a wrongful

death claim. See Tait v. Wahl. 97 Wn. App. 765, 770, 987 P.2d 127 (1999) (Even

though the decedent raised her niece as her own child, the niece was not a "child" for

purposes of RCW 4.20.020).

       The respondents do not argue that DeShawn and Ta'riyah shared a "parent-child
like" relationship sufficient for the beneficiary statute. Instead, they contend that
Ta'riyah's birth certificate and acknowledgment of paternity establish that Ta'riyah is
DeShawn's daughter as a matter of law.

       Washington courts typically must enforce birth certificates and acknowledgments
of paternity from other states. The full faith and credit clause, U.S. Const, art IV § 1,
requires that "where a state court has jurisdiction of the parties and subject matter, its
judgment controls in other states to the same extent as it does in the state where
rendered." Rilev et al. v. New York Trust Co.. 315 U.S. 343, 349, 62 S. Ct. 608, 612, 86

L. Ed. 885 (1942). "If the foreign court had jurisdiction ofthe parties and ofthe subject
matter, and the foreign judgment is therefore valid where it was rendered, a court ofthis
state must give full faith and credit to the foreign judgment and regard the issues

                                           -6-
No. 73447-4-1/7



thereby adjudged to be precluded in a Washington proceeding." In re Estate of

Wagner. 50 Wn. App. 162, 166, 748 P.2d 639 (1987). Similarly, RCW 26.26.350

specifically directs courts to "give full faith and credit to an acknowledgement or denial

of paternity effective in another state if the acknowledgment or denial has been signed

and is otherwise in compliance with the law of the other state." RCW 26.26.350.

       Ta'riyah's birth certificate and the acknowledgment of paternity carry the force of

a court judgment and create a legal presumption that she is DeShawn's child. Under

Arizona law, both a birth certificate and an acknowledgment of paternity each establish

a presumption of paternity:

       A. A man is presumed to be the father of the child if:

              3. A birth certificate is signed by the mother and father of a child born out
                  of wedlock [or]

              4. A notarized or witnessed statement is signed by both parents
                  acknowledging paternity or separate substantially similar notarized or
                  witnessed statements are signed by both parents acknowledging
                  paternity.

       B. If another man is presumed to be the child's father... an acknowledgment of
          paternity may be effected only with the written consent of the presumed father
          or after the presumption is rebutted. If the presumed father has died or
          cannot reasonably be located, paternity may be established without written
           consent.

Ariz. Rev. Stat. Ann. (ARS) § 25-814.2 The same statute further provides that "[a]ny
presumption under this section shall be rebutted by clear and convincing evidence."
ARS § 25-814(C).




       2Notably, Washington recognizes a legal parent-child relationship under similar
circumstances:


                                           -7-
No. 73447-4-1/8



      The statute governing acknowledgments of paternity provides that a "voluntary

acknowledgment of paternity made pursuant to this section is a determination of

paternity and has the same force and effect as a superior court judgment." ARS § 25-

812(D). Indeed, Arizona courts presume an acknowledgment of paternity is valid unless

it is successfully challenged:

              [A] purported voluntary acknowledgment of paternity is valid and
       binding until proven otherwise. The legislature has conferred on an
       affidavit of acknowledgment of paternity a presumption of validity, which
       may be rebutted only by clear and convincing evidence, and has strictly
       limited the avenues of collateral attack on such a determination to only
       those involving "fraud, duress, or a material mistake of fact."

Stephenson v. Nastro. 192 Ariz. 475, 967 P.2d 616, 624 (Ct. App. 1998) (quoting former

Ariz. Rev. Stat. Ann. § 25-812(E) (1997)). Therefore, under Arizona law, the

acknowledgment of paternity is presumptively valid and carries the same legal force as
a superior court judgment. Further, a party can collaterally attack a foreign judgment
only if it can establish the court lacked jurisdiction. In re Parentage of Infant Child F..
178 Wn. App. 1, 8, 313 P.3d 451 (2013). Munchbar has failed to make such a showing.
See ARS §§ 25-801, 802 (establishing jurisdiction for acknowledgments of paternity).




       The parent-child relationship is established between a child and a man or woman
       by:

              (2) An adjudication of the person's parentage;
              (3) Adoption of the child by the person;

              (6) The man's having signed an acknowledgment of paternity under RCW
       26.26.300 through 26.26.375, unless the acknowledgment has been rescinded or
       successfully challenged.
RCW 26.26.101.


                                            -8-
No. 73447-4-1/9



       Munchbar incorrectly argues the acknowledgment of paternity lacks the legal

force of a judgment because neither of Ta'riyah's parents filed the acknowledgment in

either superior court or the department of economic security as required by ARS § 25-

812. But Arizona courts have rejected this argument, holding that an acknowledgement

of paternity is still presumptively valid even if it has not been filed in superior court: "The

fact that father did not additionally pursue the alternative procedure of filing these

documents with the superior court did not deprive him of his paternity presumption

otherwise acquired under [ARS § 25-814]." Stephenson. 967 P.2d at 624.

       Munchbar also argues that the acknowledgment of paternity cannot establish

paternity here because Arizona courts have held that the paternity statutes do not
control the definition ofthe parent-child relationship in the context of a wrongful death
proceeding. Munchbar relies on Aranda v. Cardenas. 215 Ariz. 210, 159 P.3d 76 (Ct.
App. 2007) in which the court stated that "[t]he different purposes of the [paternity and
wrongful death] statutes suggest no legislative intent that the paternity statutes apply to
paternity determinations in wrongful death cases." Aranda, 159 P.3d at 214. But
Munchbar misconstrues Aranda. The Aranda court did not hold that an

acknowledgment of paternity or a birth certificate is insufficient to prove paternity for
purposes of a wrongful death claim. Rather, the court held that it is not necessary to
satisfy the paternity statutes to prove paternity.
        In Aranda. a pregnant woman died along with her unborn child. Aranda. 159
P.3d at 212. The father filed a wrongful death claim as a statutory beneficiary of both
the deceased mother and child. Aranda. 159 P.3d at 212. The defendants argued the

father could not prove paternity under Arizona's paternity statutes. Because both the
                                             -9-
No. 73447-4-1/10



mother and unborn child had died, the father could not produce an acknowledgment of

paternity or DNA test results establishing paternity under the paternity statutes. Aranda,

150 P.3d at 212. The trial court granted the defendants' motion to dismiss, concluding

the father could not prove paternity as defined by the paternity statutes. Aranda. 150

P.3d at 212. The court of appeals reversed, holding that the absence of a DNA test or

presumption of paternity under the paternity statutes did not prevent the father from

proving his paternity for purposes of a wrongful death claim:

              We decline to apply the requirements of the paternity statutes in a
       wrongful death proceeding where the legislature has not explicitly done
       so. Thus, we necessarily reject the defendants' argument that, in absence
       of a DNA test or other presumption of paternity, Aranda cannot prove his
       paternity.

Aranda. 159 P.3d at 215.

       Therefore, although Munchbar correctly notes that Arizona's paternity statutes do

not strictly apply to a paternity determination within the wrongful death context, the

effect of the Aranda court's holding is that a plaintiff is not required to satisfy the

paternity statute's definition in order to prove paternity. In other words, although the

presence of a DNA test or other presumption of paternity under the paternity statutes

may be sufficient evidence of paternity to pursue a wrongful death claim, the absence of

such evidence will also not prevent pursuing the claim. See Aranda. 159 P.3d at 215

("[The trial court] relied heavily on the absence of the types of proof acceptable in

paternity actions in granting the defendants' motion and in so doing applied an incorrect

standard in deciding the motion for summary judgment." (Emphasis added)). Indeed,

the plaintiff here has more evidence of paternity than the plaintiff in Aranda. DeShawn's



                                            -10-
No. 73447-4-1/11



estate produced an acknowledgment of paternity and a birth certificate, which the

plaintiff in Aranda could not produce.

       Munchbar also argues that we need not give full faith and credit to the

acknowledgment of paternity because it does not comply with Arizona law. See RCW

26.26.350 ("A court of this state shall give full faith and credit to an acknowledgment or

demand of paternity effective in another state if the acknowledgment or denial has been

signed and is otherwise in compliance with the law of the other state." (Emphasis
added)). But Munchbar lacks standing to challenge the acknowledgment of paternity.
Both Washington and Arizona statutes narrowly define the class of persons with
standing to challenge an acknowledgment of paternity. Neither state would permit a
defendant like Munchbar standing in a paternity proceeding. See RCW 26.26.031; ARS

§ 25-803(A).

       Though no Washington authority addresses whether a defendant like Munchbar
may challenge an acknowledgment of paternity in a wrongful death proceeding, we note
that some other jurisdictions do not allow a wrongful death defendant to collaterally
attack a paternity determination. See, e.g.. In re Dallas Group of America. Inc., 434
S.W.3d 647, 655 (Tex. Ct. App. 2014) ("None ofthese procedures [in the paternity
statutes] grants third-party, non-family defendants in a wrongful death action standing to
challenge Stoker's paternity of the children."). In Lucas v. Estate of Stavos. 609 N.E.2d
1114 (Ind. Ct. App. 1993), an Indiana court granted full faith and credit to a Louisiana
determination of paternity and held it was not subject to collateral attack in a wrongful
death proceeding even though the Louisiana determination was voidable under


                                           -11-
No. 73447-4-1/12



Louisiana law. Lucas. 609 N.E.2d at 1118-19.3 Courts similarly prohibit collateral

attacks of paternity determinations in intestacy proceedings. See In re Estate of

Murray. 344 P.3d 419 (Nev. 2015) (Parties who lacked standing to challenge paternity

under the Nevada Parentage Act could not collaterally attack paternity determination in

a probate proceeding); In re Trust Created by Agreement Dated Dec. 20. 1961. 166 N.J.

340, 765 A.2d 746, 756 (2001) ("[C]ourts in other jurisdictions appear to agree that third-

party challenges to paternity and legitimacy should be barred once those questions

have been resolved by acknowledgment or agreement of the putative parents or by

judicial decree.").

       We note that Arizona courts have held that a wrongful death defendant may

dispute paternity even if that defendant would otherwise lack standing to do so. Hurt v.

Superior Court. 124 Ariz. 45, 601 P.2d 1329 (1979). Recognizing that a defendant in a

wrongful death proceeding would otherwise lack standing to challenge paternity, the

Hurt court held that the defendant could challenge paternity to question whether the

plaintiff is a proper party:

              The problem we face as to all three statutory methods of
       determining paternity is that the defendant in the wrongful death action
       would appear to have no standing to oppose the determination of the
       question. He would be an outsider. We believe that the defendant in a

       3 The Indiana Supreme Court's description of Lucas is similar to the facts here:
              [l]n Lucas the defendants in a wrongful death action attempted to
       deny that the decedent had a surviving minor child by challenging the prior
       determination by a Louisiana court that the decedent was the father of the
       child. The defendants were not a party to the Louisiana proceeding and
       were not served. The Court of Appeals affirmed the Indiana trial court's
       determination that the Louisiana proceeding was entitled to full faith and
       credit.
Stidham v. Whelchel. 698 N.E.2d 1152, 1155 (Ind. 1998).


                                          -12-
No. 73447-4-1/13



      lawsuit may always question whether the plaintiff is a proper party if the
      issues is raised in a timely manner.

             Assuming that the motion for summary judgment did, in fact, raise
      the issue of capacity to sue, we do not believe it was an abuse of
      discretion to require a determination of this matter prior to trial. We do not
      agree, however, that it must be a separate, independent action: it can be
      determined at a pretrial hearing on the issue of the plaintiffs capacity to
      sue properly raised by the pleadings.

Hurt. 601 P.2d at 1332-33.

       Hurt is distinguishable, however. Unlike this case, the decedent in Hurt never

established his paternity under any of the available procedures in Arizona's paternity

statutes. Hurt. 601 P.2d at 1332. Here, DeShawn's estate produced a birth certificate

and acknowledgment of paternity. These documents carry the force of a superior court

judgmentand establish a legal presumption that DeShawn is Ta'riyah's father.

Washington courts must grant them full faith and credit. Wagner. 50 Wn. App. at 166.

We therefore conclude that Ta'riyah's birth certificate and the acknowledgment of

paternity were sufficient to establish that she is DeShawn's "child" for purposes ofthe

wrongful death beneficiary statute.

   III. Exclusion of "Lifestyle" Evidence

       Munchbar argues the trial court abused its discretion when it excluded lifestyle

evidence regarding DeShawn. Munchbar sought to introduce evidence that DeShawn

had sold marijuana in the past, that he stored "drug money" at his mother's house, that
he had a criminal history and was incarcerated in Arizona from June to December 2011,
and that he had never been employed in his adult life. CP at 676. The trial court

excluded the evidence as more prejudicial than probative, but it stated that Munchbar



                                            •13-
No. 73447-4-1/14



could introduce the evidence if the plaintiffs alleged economic losses or suggested that

DeShawn was a "good role model" for Ta'riyah:

             Each of the motions [to exclude character evidence] is
      presumptively granted. That is to say, the trial will begin with the
      expectation that if there is no attempt to suggest either economic losses
      ("good provider") or general good character ("role model") of the
      deceased, then the potential prejudice of these matters outweighs their
      probative value. The focus should stay on the "love, care, and
      companionship" he provided, and would have provided, to his child; how
      he related to others, friends or enemies, should be avoided. Depending
      on how plaintiffs' case is presented at trial, these issues may certainly
      need to be revisited out of the jury's presence.

CP at 677. Munchbar fails to cite anywhere in the record where the plaintiffs attempted

to suggest either economic loss or general good character, thereby opening the door to

DeShawn's character evidence. Instead, Munchbar contends the evidence was

admissible under ER 404(b) and not inadmissible under ER 403.

       We will reverse a trial court's evidentiary rulings only upon a showing of abuse of

discretion. Subia. 104 Wn. App. at 113-14. "A trial court abuses its discretion if its

decision is manifestly unreasonable or based on untenable grounds or untenable

reasons." Littlefield. 133 Wn.2d at 46-47. Even if a trial court's evidentiary rulings were

erroneous, the appellant must also show that the error was prejudicial. "Error will not be

considered prejudicial unless it affects, or presumptively affects, the outcome of the

trial." Brown, 100 Wn.2d at 189.

       The trial court did not abuse its discretion here. Prior instances of conduct are

rarely admitted in civil cases to show character. See 5A Karl B. Tegland, Washington




                                          -14-
No. 73447-4-1/15



Practice: Evidence Lawand Practice § 405.5 (5th ed. 2007).4 Specific instances of

conduct may be used to prove character only when character is an issue in the case or

to rebut evidence of character. ER 405(b). Munchbar correctly notes that specific acts

may be admitted as character evidence in child custody disputes. See, e.g.. In re

Interest of Infant Child Skinner. 97 Wn. App. 108, 982 P.2d 670 (1999). But this is a

rare exception to the rule. In a wrongful death case, the type of character evidence

Munchbar sought to introduce—prior convictions and unemployment—is typically only

relevant to prove economic damages based on future earning capacity. See Maicke v.

RDH. Inc.. 37 Wn. App. 750, 752, 683 P.2d 227 (1984) (decedent's prior convictions

were relevant to future earning capacity in wrongful death action).

      The plaintiffs here abandoned their claim for economic damages before trial.

Absent economic damages, the primary focus of the wrongful death claim is for the

beneficiary to demonstrate the relationship with the decedent:

      The beneficiaries in such actions are entitled to compensation for their
      own losses from the untimely death of a family member. Logically, the
      proper way to demonstrate those losses is, as the trial court recognized, to
      allow plaintiffs to present evidence showing what the relationship would
      have been like but for the wrongful conduct of the defendant.




      4 "[E]vidence of a person's character is relevant and admissible in a civil case
when the person's character is directly at issue under the pleadings and applicable law.
Such cases, however, are relatively unusual....
       "More often, a person's character is not directly at issue in a civil case, and the
question is whether evidence of character is admissible as evidence that the person
was likely to have acted in conformity with that character on a particular occasion. The
general rule under Rule 404(a) is that it is not admissible for this purpose." 5 Karl B.
Tegland, Washington Practice: Evidence Law and Practice § 404.3 (5th ed. 2007)
(emphasis added).


                                          -15-
No. 73447-4-1/16



Bowers v. Fibreboard Corp.. 66 Wn. App. 454, 460, 832 P.2d 523 (1992). This includes

"evidence of the decedent's . . . contributions of time, energy, and emotional support to

the relationship" with the surviving beneficiary. Bowers. 66 Wn. App. at 460.

       The trial court reasonably concluded that the character evidence Munchbar

offered was not relevant to this inquiry. DeShawn's character was not directly at issue

in the case—his relationship with Ta'riyah was. His prior criminal history is not

probative of what DeShawn contributed to his relationship with Ta'riyah or what their

"relationship would have been like but for [Munchbar's] wrongful conduct." Bowers. 66

Wn. App. at 460. Of course, as the trial court properly noted, Munchbar could introduce

specific acts to rebut character evidence introduced by the plaintiffs. But Munchbar has

failed to show that the plaintiffs improperly opened the door to this evidence.

       Further, although Munchbar claims the character evidence was relevant to show

DeShawn's character regarding his relationship to Ta'riyah, Munchbar's primary

argument at trial was that DeShawn and Destiny were engaged in a feud with Ja'Mari

Jones. It argued that DeShawn was at fault for the incident because he and Destiny

planned to take revenge on Jones by attacking him at the club. Allowing the evidence

could have therefore confused the jury and allowed them to use it for an improper

purpose. See ER 404(b) ("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."

(Emphasis added)). Under these circumstances, the trial court did not abuse its

discretion when it conclude the proffered evidence of prior acts was inadmissible under

ER 404(b) or ER 405.



                                          •16-
No. 73447-4-1/17



       But even ifthe character evidence was plausibly admissible under ER 404(b) or

ER 405, the trial court nevertheless acted within its discretion when it excluded the

evidence as more prejudicial than probative under ER 403. Trial courts have

considerable discretion when balancing the probative value of evidence against its

potential prejudicial impact. Given the speculative relevance of DeShawn's prior acts

and the nature of Munchbar's trial theory, discussed above, the trial court could have

reasonably excluded the evidence as prejudicial under ER 403.

       Finally, even if the trial court erred, Munchbar has failed to show that the error

was prejudicial. "Error will not be considered prejudicial unless it affects, or

presumptively affects, the outcome of the trial." Brown. 100 Wn.2d at 196. The

exclusion of the evidence did not affect the outcome of the trial here. Despite the trial

court's exclusion of the character evidence, Munchbar nevertheless was able to make

many of the same arguments. For example, Munchbar elicited testimony that DeShawn

did not have a job. Munchbar also emphasized the low frequency of DeShawn's visits

with Ta'riyah.

       Munchbar strongly insinuated that Destiny and DeShawn operated with criminal

intent. During closing, Munchbar emphasized that both Destiny and DeShawn "hung

around people with guns." Report of Proceedings (RP) (Mar. 30, 2015) at 1443.

Counsel argued that the reason DeShawn died was because he and Destiny chose "to

instantaneously attack a convicted murderer." RP (Mar. 30, 2015) at 1445. Munchbar

explained that DeShawn and Destiny were in a feud with Ja'Mari Jones over money that

he stole. As part of this feud, DeShawn and Destiny specifically planned to attack

Jones. Munchbar argued "Destiny and DeShawn's plan did not know the bounds of a

                                           -17-
No. 73447-4-1/18



place. It was only, when you see him [Jones], you let me know and I will take care of

the rest." RP (Mar. 30, 2015) at 1456. According to Munchbar, DeShawn "wanted that

revenge" against Jones. RP (Mar. 30, 2015) at 1460.

       A major theme of Munchbar's defense was that DeShawn was a reckless

vigilante: "How many of us have friends or acquaintances where somebody has ripped

off somebody for $100,000, doesn't tell the police about it, and decides we are going to

take it into our own hands?" RP (Mar. 30, 2015) at 1467. Munchbar described the night

club incident as "street justice, plain and simple." RP (Mar. 30, 2015) at 1492.

Munchbar again emphasized the few times DeShawn visited with Ta'riyah during

closing, and suggested that DeShawn provided little guidance to his daughter:

              Guidance? What do we know about DeShawn Milliken? There is
       so little that we know. We don't know what he did for a living. He has a
       safe under his bed. A hundred thousand dollars in it.

              The timing of the Ja'Mari. . . vendetta. It could have happened
       anywhere at any time. And Ta'riyah, if she was here on vacation, would
       she have been witness to this? Is this the kind of guidance that they are
       asking for?

RP (Mar. 30, 2015) at 1479. Munchbar's argument may have had some effect on the

jury. The plaintiffs asked for a total of $9 million on behalf of Ta'riyah. The jury

awarded $3.7 million. Under these circumstances, Munchbar has failed to show that

the exclusion of DeShawn's prior acts affected the outcome of the trial.

   IV. Jury Instructions

       Finally, Munchbar claims the trial court erred when it declined to give several of

Munchbar's proposed jury instructions. But the trial court did not abuse its discretion,

and Munchbar has failed to show that any jury instruction caused prejudice.


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       The number and specific language of jury instructions is a matter within the

court's discretion. Havens v. C&D Plastics. Inc.. 124 Wn.2d 158, 165, 876 P.2d 435

(1994). Instructions are sufficient when they permit a party to argue its theory of the

case, are not misleading, and when read as a whole properly inform the trier of fact on

the applicable law. Douglas v. Freeman. 117 Wn.2d 242, 256, 814 P.2d 1160(1991).

An erroneous jury instruction requires reversal only if it causes prejudice. Ezell v.

Hutson. 105 Wn. App. 485, 488, 20 P.3d 975 (2001).

       1.   Definition of "Fault"

       Munchbar claims jury instruction 12 failed to include "recklessness" as a

possibility in the definition of fault. That instruction provided that "[t]he term 'fault'

includes, as defined in these instructions, as well as willful misconduct." Clerk's Papers

(CP) at 3216. In contrast, RCW 4.22.015 defines "fault" as "acts or omissions . . . that

are in any measure negligent or reckless toward the person or property of the actor or

others .. .." RCW 4.22.015. Munchbar argues that it presented sufficient evidence that

DeShawn behaved recklessly and therefore that it should have been granted a "fault"

instruction allowing for the jury to find his conduct was reckless.

       The trial court did not abuse its discretion by providing jury instruction 12. The

instruction does not misstate the applicable law, and Munchbar has failed to show how

the instruction prevented it from arguing its theory of the case. Munchbar asserted

comparative fault, and the instruction allowed for the jury to attribute fault to DeShawn

or Destiny. Nothing prevented Munchbar from asserting that their conduct arose to

recklessness.




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       Indeed, including "recklessness" as an option would not have changed the

outcome of the case. Attributing fault to DeShawn and Destiny depended only on

whether the jury found that they acted with "negligent conduct or willful misconduct."

CP at 3219. Specifically, the verdict form required the jury to answer this question:

"Was negligent conduct or willful misconduct of any of the following also a proximate

cause of injury and damage to the plaintiffs? . . . (Indicate with a 'yes' or 'no' on the line

provided.)" CP at 3219. The jury indicated a "yes" next to both Destiny and DeShawn.

       Importantly, though, the form did not ask the jury to differentiate between

"negligent" and "willful" misconduct. Therefore, comparative fault only required the jury

to find that Destiny and DeShawn acted with at least "negligent" conduct. Because

recklessness requires a high showing of intent than negligence, adding recklessness as

an option in the jury instructions would not have changed the outcome of the case. A

finding of recklessness would have resulted in the same "yes" under the fault question

on the verdict form. Therefore, even if the trial court erred, the instructions did not

cause prejudice.

       2.   Louis Holmes Instruction

       Munchbar claims the trial court erred by declining to include an instruction

permitting the jury to identify Louis Holmes as a potential at-fault entity. But the trial

court concluded that no evidence supported an inference that Holmes caused the

altercation. Munchbar has failed to cite anything in the record rebutting this finding.

The record shows that Holmes joined the altercation after DeShawn and Jones had

already begun fighting. A trial court acts within its discretion when it declines an

instruction unsupported by sufficient evidence. See Diaz v. State. 175 Wn.2d 457, 285

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P.3d 873 (2012) ("Without a claim that more than one party is at fault, and sufficient

evidence to support that claim, the trial judge cannot submit the issue of allocation to

the jury."). The trial court here likewise did not abuse its discretion.

       3. Jury Instructions 7 and 9

       Munchbar argues that jury instructions 7 and 9 constitute and improper comment

on the evidence. Jury instruction 7 provides that the plaintiffs have the burden of

proving that the defendant was negligent. Jury instruction 9 provides that an "operator

of a nightclub owes a duty to its patrons to exercise ordinary care to protect them from

reasonably foreseeable criminal conduct of third parties. Breach of this duty is

negligence." CP at 3212. The instruction also clarifies that the violation of Washington

law "is not necessarily negligence, but may be considered by you as evidence in

determining negligence." CP at 3212.

       Munchbar has failed to show that these instructions are erroneous. Munchbar's

entire argument relating to jury instructions 7 and 9 amounts to 4 sentences containing

no citation to authority, nor do they provide any analysis on why the instructions are

erroneous. Munchbar simply asserts, without further detail, that the instructions

constitute a comment on the evidence and facilitated a disproportionate jury response.

It is difficult to discern Munchbar's argument given its passing treatment of this issue.

See Palmer v. Jensen. 81 Wn. App. 148, 153, 913 P.2d 413 (1996) ("Passing treatment

of an issue or lack of reasoned argument is insufficient to merit judicial consideration.").

       Nevertheless, the trial court did not abuse its discretion when it gave the

instructions. The instructions accurately state the applicable law and did not prevent

Munchbar from arguing its theory of the case. Further, Munchbar admitted its own

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negligence at the beginning of the case. Therefore, Munchbar cannot show that these

instructions caused prejudice.

      4. "Guidance" Instruction

       Finally, Munchbar argues the trial court erred when it included the word

"guidance" in its instruction for damages. The instruction asked the jury to consider

"[t]he value of what DeShawn Milliken reasonably would have been expected to

contribute to his daughter Ta'riyah Smith-Milliken in the way of love, care,

companionship and guidance." CP at 3214.

      The trial court did not abuse its discretion in providing this instruction. The

instruction is an accurate statement of the law and Munchbar has failed to show how it

prevented it from arguing its theory of the case. See WPI 31.03.01 (requiring jury to

consider "love, care, companionship, and guidance"); Ueland v. Reynolds Metals Co..

103 Wn.2d 131, 140, 691 P.2d 190 (1984) ("child has an independent cause of action

for loss of the love, care, companionship, and guidance of a parent tortuously injured by

a third party."). Further, Munchbar was aware the plaintiffs would be seeking damages

based on guidance well before the court considered jury instructions. Munchbar has

therefore failed to show that addition of the word "guidance" from jury instruction 11

prejudiced the outcome.

   V. Other Errors

       We note that Munchbar's opening brief contains several assignments of error

that are not addressed—or even subsequently mentioned—in the remainder of its brief.

We need not address these issues. See Emerick v. Cardia Study Ctr. Inc.. P.S.. 189




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No. 73447-4-1/23



Wn. App. 711, 730 n.8, 357 P.3d 696 (2015) ("A partywaives an assignment of error
not adequately argued in its brief.").

                                         CONCLUSION



       For the foregoing reasons, we affirm.



                                                  ~~T'*<M\y . A^J"

WE CONCUR:




                                                        ^7X,^




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