      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 77914-1-I
                          Respondent,

       v.                                       DIVISION ONE

 EDWARD AMES YECK,
                                                UNPUBLISHED OPINION
                  Appellant.
_______________________________                 FILED: October 7, 2019
       LEACH, J.   —   A jury convicted Edward Yeck of three counts of domestic

violence felony violation of a court order. On appeal, Yeck challenges the trial

court’s evidentiary rulings, denial of his motion for a mistrial, and imposition of a

mandatory DNA1 collection fee. We remand to strike the DNA collection fee but

otherwise affirm Yeck’s convictions.

                                        FACTS

       Edward Yeck and Terry Remsberg met in December 2015 and began an

“up and down” intimate relationship. Their relationship ended in February 2017.

In March 2017, the King County Superior Court entered an agreed order

protecting Remsberg from Yeck for three years.2 The order prohibited Yeck from


      1   Deoxyribonucleic acid.
      2   Yeck was present in court and signed the order for protection.
No. 77914-1-1/2



having any contact with Remsberg, whether “in person or through others, by

phone, mail, or any means, directly or indirectly.”

       On July 23, 2017, Remsberg received a Facebook message from Yeck’s

Facebook account.      The message told Remsberg that Yeck sent her some

paperwork about “life insurance policies” and asked her, “[D]on’t you think you

have ignored me long enough?       .   .   .   can’t you find it in your Christian heart to

forgive me??!”

       On July 29, 2017, Remsberg received an envelope postmarked July 27

with Yeck’s apartment listed as the return address. The envelope contained an

unsigned three-page handwritten letter.              Remsberg immediately recognized

Yeck’s handwriting.    In the letter, Yeck talks about acquiring a $500,000 life

insurance policy and wanting Remsberg to be the beneficiary “for just being you

and being my woman for 14 of the best months in my life.” The envelope also

contained a life insurance advertisement for Yeck and a page describing Yeck as

the owner of a $10,000 life insurance policy and Remsberg as the primary

beneficiary.3

      Also on July 29, Remsberg received another message from Yeck’s

Facebook account.      This message demeaned Remsberg’s intelligence and




      ~ The policy declaration page also included Yeck’s address, date of birth,
and gender.

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No. 77914-1-I /3



chided, “[Y]ou had a chance to recieve half a million dollars and chose to do

things your way and not take the guift.”4

       Remsberg reported Yeck’s contacts to the Seattle Police Department.5

The police arrested Yeck on August 23, 2017. During a call from jail, Yeck told

his friend “Linda” that “Terry said I texted her or something” so the police “picked

me up on a no-contact order.” Later in the call, Yeck continued, “I sent her that

mail for the life insurance policy thing. I sent her—I was going to send her that in

the mail,” and that if she “turned me in for sending her that in the mail and

breaking the contact order, that’s pretty chippy shit.”

       The State charged Yeck with three counts of domestic violence felony

violation of a court order.6 Yeck pleaded not guilty. At trial, the State questioned

Remsberg about how she learned of the Facebook messages Yeck sent her.

Remsberg testified that a notification “dings up on my phone” and she opened

‘[s]ome of them.” Defense counsel objected and moved to strike this testimony.

The trial court sustained the objection and instructed the jury to disregard the

State’s last question and Remsberg’s answer. The trial court denied defense

counsel’s request for a mistrial.



      ~ Misspellings in original.
      ~ Remsberg did not open the two Facebook messages she received from
Yeck’s account prior to giving them to the police.
      6 The trial lasted for six days, November 30, 2017, through December 12,
2017.

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No. 77914-1-114



        During cross-examination, defense counsel asked Remsberg if Yeck ever

visited a recreational vehicle (RV) in which she previously lived. Remsberg gave

the following nonresponsive answer: “He came to the RV and pounded on the

door and shook the RV and—” The State objected to this testimony. The trial

court sustained the objection and instructed the jury to disregard the question

and answer.      The trial court again denied defense counsel’s request for a

mistrial.

        The trial court admitted evidence of three of Yeck’s prior convictions for

violating an order into evidence.7 The court instructed the jury it could consider

Yeck’s prior convictions for the purpose of determining whether he “had twice

been previously convicted for violating the provisions of a court order.”8 Over

Yeck’s ER 404(b) objection, the court also allowed the jury to consider the prior

convictions “for the purpose of determining whether the actions charged in

counts I, II and Ill constituted a ‘mistake’ or ‘accident.”

       Yeck did not testify but defended on the theory that the State failed to

prove he was the person who contacted Remsberg in July 2017.

       The jury found Yeck guilty as charged on all counts.         The trial court

imposed a standard range concurrent sentences and ordered that Yeck serve a


       ~ The court also admitted a copy of the March 2017 no-contact order.
       8 As part of its burden to prove a felony violation of a court order charge,
the State must prove that the defendant has two prior convictions for violating an
order. See RCW 26.50.110(5).

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total of 60 months’ confinement.          It waived all nonmandatory legal financial

obligations and imposed a $100 DNA collection fee.

       Yeck appeals.

                                 STANDARD OF REVIEW

       We review a trial court’s decision to admit or exclude evidence for an

abuse of discretion.9 We also review a trial court’s denial of a motion for a

mistrial for an abuse of discretion.1° A trial court abuses its discretion when it

makes a manifestly unreasonable decision or bases its decision on untenable

grounds or reasons.11

                                        ANALYSIS

                              I. Evidence of Prior Convictions

      Yeck first contends the trial court erred by admitting his three prior

convictions to show absence of mistake or accident. He acknowledges that the

State properly offered evidence of two convictions to prove an element of the

charged crimes.           He argues the court’s admission of evidence of a third

conviction and allowing the jury to consider the other two on the issue of mistake

or accident violated ER 404(b) because he did not claim mistake or accident as a

defense. We agree.12

      ~ State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014).
      10 State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235 (1996).
      ~‘ Gunderson, 181 Wn.2d at 922.
      12 ER 404(b) prohibits a court from admitting “[e]vidence of other crimes,
wrongs, or acts. to prove the character of a person in order to show action in
                  .   .




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       “Improper admission of evidence constitutes harmless error if the

evidence is of minor significance in reference to the evidence as a whole.”13 An

evidentiary error that is not of constitutional magnitude, such as erroneous

admission of ER 404(b) evidence, requires reversal only if there is a reasonable

probability that the error materially affected the trial’s outcome.14      No such

probability exits in this case. The overwhelming evidence of Yeck’s guilt leads us

to conclude that the outcome of his trial was not materially affected by the

admission of a third conviction or the court’s instruction about mistake or

accident.

       To convict Yeck of the crime of violation of a court order, the trial court

instructed the jury that it needed to find that a no-contact order existed, that Yeck

knew of it, that Yeck “knowingly violated” it, and that he had “twice been

previously convicted for violating the provisions of a court order.”15




conformity therewith.” However, such evidence may be admitted for another
purpose, including, but not limited to, “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” ER 404(b).
Evidence of the absence of mistake or accident “is never a material issue unless
first raised by the defendant.” State v. Ramirez, 46 Wn. App. 223, 228, 730 P.2d
98(1986).
         13 Statev. Neal, 144 Wn.2d 600,611,30 P.3d 1255 (2001).
         14 State v. Stenson, 132 Wn.2d 668, 709, 940 P.2d 1239 (1997).
         15 The court gave the same “to-convict” instructions on all counts. The
only difference among these instructions is the date upon which Yeck allegedly
contacted Remsberg, including count I (July 23, 2017), count II (between July 1
and July 29, 2017), and count III (July 29, 2017).

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No. 77914-1-I /7



         At trial, the State presented evidence of the March 2017 no-contact order

and of Yeck’s awareness of that order. Remsberg testified that she received a

letter in Yeck’s handwriting, asking that she contact him to confirm her desire to

be a beneficiary on his half-million-dollar life insurance policy. She testified to

receiving two messages—both mentioning Yeck’s life insurance policy—sent

from Yeck’s Facebook account. The jury heard a recording of Yeck’s jail call

during which he stated, “I sent her that mail for the life insurance policy thing.”

Additionally, the evidence of Yeck’s prior convictions was admitted to prove an

essential element of the charged offense—that Yeck had twice before been

convicted for violating the provisions of a court order.16

         Given this evidence, the jury had more than sufficient evidence to decide

that Yeck knowingly violated the March 2017 no-contact order. Thus, even if the

trial court had not allowed the jury to consider the prior convictions for purpose of

mistake or accident, the court’s error did not materially affect the outcome of the

trial.

                                II. Motion for Mistrial

         Yeck also contends that the trial court should have granted his motions for

a mistrial. We disagree.


         “ER 404(b) is not designed ‘to deprive the State of relevant evidence
         16
necessary to establish an essential element of its case.” State v. Foxhoven, 161
Wn.2d 168, 175, 163 P.3d 786 (2007) (quoting State v. Lough, 125 Wn.2d 847,
859, 889 P.2d 487 (1995)).

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       A trial court should grant a mistrial based on an irregularity at trial only

when the irregularity so prejudices the defendant that nothing short of a new trial

can provide the defendant with a fair trial.17 ‘in determining whether a trial court

abused its discretion in denying a motion for a mistrial, we examine (1) the

seriousness of the irregularity, (2) whether the statement was cumulative of other

properly admitted evidence, and (3) whether the irregularity could be cured by an

instruction.”18 Because the trial court is in the best position to determine if an

irregularity at trial prejudiced the defendant, it has broad discretion to grant or

deny a mistrial based on those irregularities.19

       The irregularities here were not serious. Courts have found irregularities

serious when the jury has heard inadmissible testimony that is inherently

prejudicial.20    Yeck contends that Remsberg violated motions in limine by

“repeatedly      referencing   her   troubled,   abusive   relationship   with   Yeck.”

Remsberg’s testimony, however, was innocuous at best.             She mentioned the

phrase “we had a domestic situation,” but the State immediately stopped and

redirected her testimony. Another time, Remsberg said, Yeck “came to the RV

and pounded on the door and shook the RV” but was not allowed to place that


       17 State v. Wade, 186 Wn. App. 749, 773, 346 P.3d 838 (2015) (quoting
State v. Kwan Fai Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)).
       18 Wade, 186 Wn. App. at 773.
       19Wade, 186 Wn. App. at 773.
       20 See, e.g., State v. Escalona, 49 Wn. App. 251, 254-55, 742 P.2d 190

(1987); State v. Babcock, 145 Wn. App. 157, 163-64, 185 P.3d 1213 (2008).

                                          -8-
No. 77914-1-1/9



statement in context. Last, when asked about receiving Facebook messages,

Remsberg testified to opening “some of them.” In context, it is unclear whether

she was referring to opening some of her Facebook messages generally or

opening those from Yeck specifically.

       Moreover, Remsberg’s testimony was cumulative of other evidence. The

trial court aptly observed,

       Well, I think that the jury is aware that there has been some sort of
       domestic violence in the case because of the fact that there is a
       protection order. That she sought a protection order after the end
       of the relationship. And so I don’t think that that comes as news to
       the jury that there has been at least allegations of domestic
       violence and a situation that the Court felt required a protection
       order be entered. And so I—it’s not like none of that was known to
       the jury or has been put before the jury and now suddenly we’re
       exploring other incidences.
We agree with the trial court’s observations.        Remsberg’s inadmissible

testimony, in essence, repeated what other evidence directly and indirectly

showed.

       Finally, the trial court’s instruction to the jury cured the irregularity.

After Remsberg testified about opening “some” Facebook messages and

Yeck pounding on the RV door and shaking it, the court immediately

instructed the jury to disregard counsel’s question and Remsberg’s

answer. We presume that juries follow the court’s instructions.21           The

instruction did not unduly emphasize the testimony, and the irregularity

       21   State v. Gamble, 168 Wn.2d 161, 178, 225 P.3d 973 (2010).


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No. 77914-1-I / 10



was not “‘inherently prejudicial and of such a nature as to likely impress

itself upon the minds of the jurors.”22        Therefore, the trial court’s

instruction adequately cured the irregularity here.     The court properly

denied Yeck’s motion for a mistrial.

                               Ill. Cumulative Error

       Next, Yeck alleges that cumulative error deprived him of a fair trial.

Because the only error in this case—the admission of one of Yeck’s prior

convictions for the purpose of showing the absence of mistake or accident—was

harmless, we reject this claim.23

                              IV. DNA Collection Fee

       Lastly, Yeck seeks to strike the $100 DNA collection fee from his judgment

and sentence.

      Yeck contends, and the State concedes, that the DNA fee should be

stricken pursuant to State v. Ramirez24 because his DNA is already on file with

the Washington State Patrol Crime Lab. We accept the concession of error and




      22   Escalona, 49 Wn. App. at 255 (quoting State v. Miles, 73 Wn.2d 67, 71,
436 P.2d 198 (1968)).
       23 State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006) (explaining
how the cumulative error doctrine “does not apply where the errors are few and
have little or no effect on the outcome of the trial”) (citing State v. Greiff, 141
Wn.2d 910, 929, 10 P.3d 390 (2000)).
       24 191 Wn.2d 732, 746-50, 426 P.3d 714 (2018).



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No. 77914-1-I / 11



remand to the trial court for a ministerial order striking the DNA fee from the

judgment and sentence.25

                                 CONCLUSION

      We remand for amendment of the judgment and sentence consistent with

this opinion. We otherwise affirm.




WE CONCUR:
                                                     4/’




      25   See State v. Ramos, 171 Wn.2d 46, 48, 246 P.3d 811 (2011) (noting
“when a hearing on remand involves only a ministerial correction and no exercise
of discretion, the defendant has no constitutional right to be present”).

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