                                                                       FILED
                                                                   OCTOBER 13, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill



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

STATE OF WASHINGTON,                         )
                                             )         No. 33344-2-111
                       Respondent,           )         (Consolidated with
                                             )         No. 33345-1-111)
      v.                                     )
                                             )
MICHAEL CURTIS COLLEY,                       )         UNPUBLISHED OPINION
                                             )
                       Appellant.            )

      KORSMO,    J. -Michael Colley appeals his five Franklin County convictions,

primarily raising evidentiary challenges. Although we agree that there was error, none of

it was harmful and we affirm the convictions.

                                         FACTS

      This appeal arises from an incident in which Mr. Colley was apprehended driving

a stolen vehicle; some of the contents of the vehicle form the basis for many of the

evidentiary issues presented here. We address the facts (typically in conjunction with the

argument) and the issues in a somewhat cursory manner since we intend this opinion to

be non-precedential.

       When stopped, Mr. Colley presented the driver's license for Christopher Brunetti,

but when questioned by the officer said his first name was "Carlos." The passenger, Adel

Estrada, also gave a false name to the officer. Both were arrested and a warrant was
No. 33344-2-III; 33345-1-III
State v. Colley


obtained to search the stolen vehicle. Deputies discovered two guns, ammunition, Camel

Crush cigarettes, a ski mask, and miscellaneous other items including a receipt from a

local Walgreens store. These items were all admitted into evidence at trial.

       An Adams County deputy sheriff discovered a Hyundai with a broken window a

few days after Colley had been arrested in Franklin County. Inside was paperwork for

Adel Estrada, a box of Camel Crush cigarettes, and mail from 31 individuals or

businesses, including Mr. Brunetti. The prosecutor sought to admit this "404(b )"

evidence at trial. After hearing argument and defense objection, which was renewed at

trial, the trial court admitted the Adams County information. The court did not explain

its reasoning in admitting this evidence.

       A jury convicted Mr. Colley of felony counts of unlawful possession of a firearm,

identity theft, and possession of a stolen vehicle, and misdemeanor counts of possession

of stolen property and making a false statement to a public servant. He received

concurrent sentences, the longest of which was twelve months for the weapons count. He

timely appealed to this court.

                                        ANALYSIS

       Mr. Colley contends that the court erred in admitting the Walgreens receipt, some

of the other items in the stolen car, the Adams County evidence, and in questioning about

Ms. Estrada. After noting the standards of review for these challenges, we address those

claims in the noted order.

                                            2
No. 33344-2-111; 33345-1-111
State v. Colley


       Initially, we note the appellate review standards governing evidentiary challenges.

Evidentiary rulings, including those under ER 404(b ), are reviewed for abuse of

discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Discretion is

abused if it is exercised on untenable grounds or for untenable reasons. State ex rel.

Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971). In order to present an

evidentiary argument on appeal, the party must have challenged the admission of evidence

at trial on the same grounds that it raises on appeal. State v. Guloy, 104 Wn.2d 412,422,

705 P.2d 1182 (1985). As explained in Guloy:

       As to statement (d), counsel objected but on the basis that it was not proper
       impeachment nor was it within the scope of redirect. A party may only
       assign error in the appellate court on the specific ground of the evidentiary
       objection made at trial. Since the specific objection made at trial is not the
       basis the defendants are arguing before this court, they have lost their
       opportunity for review.

Id. (citation omitted).

       Evidence of other bad acts is permitted to establish specific purposes such as the

identity of an actor or the defendant's intent or purpose in committing a crime. ER

404(b ). Those purposes, in tum, must be of such significance to the current trial that the

evidence is highly probative and relevant to prove an "essential ingredient" of the current

crime. State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Evidence admitted

under ER 404(b) is considered substantive evidence rather than impeachment evidence.

State v. Laureano, 101 Wn.2d 745,766,682 P.2d 889 (1984), overruled in part by State


                                             3
No. 33344-2-III; 33345-1-III
State v. Colley


v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1990); State v. Wilson, 60 Wn.

App. 887, 891, 808 P.2d 754 (1991).

       When considering ER 404(b) evidence, the proponent of the evidence must first

convince a trial court by a preponderance of the evidence that the "misconduct" actually

occurred. Lough, 125 Wn.2d at 853. A trial court may conduct a hearing to take

testimony, but is not required to do so. State v. Kilgore, 147 Wn.2d 288, 294-295, 53

P.3d 974 (2002). If the court determines that the misconduct occurred, the court then

must identify the purpose for which the evidence is offered, determine whether the

evidence is relevant to prove an element of the offense, and weigh the probative value of

the evidence against its prejudicial effect. Lough, 125 Wn.2d at 853. The court may then

admit the evidence subject to a limiting instruction telling the jury the proper uses of the

evidence. Id. at 864.

       The admission of other "bad acts" evidence under ER 404(b) does not present a

constitutional issue. Dowling v. United States, 493 U.S. 342, 352, -110 S. Ct. 668, 107 L.

Ed. 2d 708 (1990). Nonconstitutional error is harmless if, within reasonable probability, it

did not affect the verdict. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986).

       Walgreens Receipt

       The Walgreens receipt showed that purchases, including Camel Crush cigarettes,

had been recently made at a store close to where the vehicle was stopped. The other items

listed on the receipt also were found in the car and Ms. Estrada admitted that she and the

                                              4
No. 33344-2-III; 33345-1-III
State v. Colley


defendant had purchased items at the Walgreens that evening. During argument, the

prosecutor used the receipt to indicate the time the defendant had been at the store.

       Mr. Colley argues that the receipt was hearsay and should have been excluded on

that basis. 1 We agree. The evidence was used to establish that the items on the receipt

had been purchased at the nearby Walgreens shortly before the traffic stop. Since the

receipt served to prove the truth of what was stated on the form, it was hearsay. ER

80l(c). Business records are admitted pursuant to the statutory requirements ofRCW

5.45.020. That was not done here. It was error to admit the receipt for the purpose of

proving the information contained therein.

       The prosecutor argues both that the document was properly authenticated and that

Mr. Colley adopted the receipt as his own statement by possessing it. See ER

801(d)(2)(ii) (excluding from the definition of hearsay, any statement "which the party

has manifested an adoption or belief in its truth."). Neither argument is persuasive.

Whether something is properly authenticated is governed by ER 901 et seq. Hearsay is

governed by the provisions of ER 801 et seq. and, in this case, also by RCW 5.45.020.

Authentication may be required to admit a document, but authentication does not

establish the foundation for admitting business records or other forms of hearsay. They

present two different questions.


       1
        He also argues that the receipt was irrelevant evidence. However, he did not
challenge the item on that basis at trial and cannot now do so. Guloy, I 04 Wn.2d at 422.

                                             5
No. 33344-2-III; 33345-1-III
State v. Colley


       We also are not persuaded that mere possession of a document, without more,

establishes that the possessor also adopted those statements as his or her own. A librarian

possesses many books, but is not thereby deemed to claim all of their contents as her own

statements. Instead, there must be some manifestation that the possessor intends to

convey the message in the document as his own. For instance, when Mr. Colley was

asked for identification, he presented Mr. Brunetti's driver's license. That act was an

assertion that the contents of the document spoke for Mr. Colley. Merely having a

receipt in the car, or even on his person, is not an adoptive admission.

       The trial court erred in admitting the receipt to prove the contents of the writings

thereon. Nonetheless, the error was absolutely harmless in this case. Ms. Estrada

testified that the two had made purchases at Walgreens and the items, or photos thereof,

were admitted into evidence at trial. The only information not already before the jury

involved the time of the purchases. While arguably relevant, that information was of no

consequence to this case. The timing of the purchase, shortly before the traffic stop, only

served to confirm that the items were purchased nearby not long before the deputy

stopped the couple in the stolen vehicle. If anything, the receipt inured to the benefit of

Mr. Colley as it suggested he had not stolen those items.

       The timing of the Walgreens purchase was not at issue in trial. Error in admitting

that information was absolutely non-prejudicial.




                                             6                                                ,
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                                                                                              l
No. 33344-2-III; 33345-1-III
State v. Colley


       ER 404(b)

       Mr. Colley next argues that the trial court erred in admitting the ski mask and the

evidence from the Adams County investigation. We agree that the trial court erred in

failing to follow the balancing test required by ER 404(b) and that error, particularly the

failure to balance on the record the probative value of the evidence against any

prejudicial effect, leaves us uncertain whether the Adams County evidence was

admissible. Assuming that the court erred in admitting that evidence, however, the error

did not, within reasonable probability, affect the verdict.

       Mr. Colley was arrested while in possession of the stolen vehicle and the other

items found therein, including the weapons. He lied to the police about his identity and

attempted to pass himself off as Mr. Brunetti. Thus, all five crimes were committed in the

presence of the officers and were not influenced by the Adams County evidence. Indeed,

the only piece of that evidence related to Mr. Colley was mail belonging to Mr. Brunetti

and, possibly, the Camel Crush cigarettes. While the evidence suggested that Mr. Colley

was involved with the Hyundai found in Adams County, the converse was not true. The

Adams County evidence held very little significance to the Franklin County prosecution.

It may have been a different story if the other evidence had been tied more closely to Mr.

Colley and suggested that he was living by stealing mail, but that was not the case.

       The Hyundai evidence did not, within reasonable probability, affect the verdict.

Any error in admitting the evidence was not prejudicial.

                                              7
No. 33344-2-III; 33345-1-III
State v. Colley


       The ski mask presents a slightly different issue. Mr. Colley argues that it was

irrelevant and prejudicial. To the extent that he is arguing prejudice as an independent

reason for excluding the mask per ER 403, he has waived the claim by not arguing it to

the trial court. Guloy, 104 Wn.2d at 422. To the extent that he is arguing that the

evidence was irrelevant and that he suffered prejudice therefrom, we disagree. The

evidence was relevant.

       Relevant evidence is admissible. ER 402. Evidence is relevant if it has "any

tendency" to make a fact of consequence "more probable or less probable." ER 401. The

ski mask was relevant to show knowledge on the part of Mr. Colley that the vehicle and

other items were stolen. Although dependent upon a chain of inferences that would

suggest Mr. Colley knew the items were stolen because he stole them, the ski mask was

probative that Mr. Colley had need to hide his identity. The weight to be given this

information, if any, was for the jury.

       The error in admitting the ER 404(b) evidence was harmless; there was no error in

admitting the ski mask into evidence.

       Questioning about Ms. Estrada

       During questioning of a deputy sheriff about the traffic stop and subsequent

behavior of the occupants, the prosecutor asked if Ms. Estrada was "honest" about her

identity. Defense counsel objected that the question was irrelevant since "honesty" was a

jury question. The judge directed the prosecutor to set a foundation for the question.
                                                                                                i


                                             8
                                                                                            I
                                                                                            I

                                                                                            l'
                                                                                            f
                                                                                            1
                                                                                            f
No. 33344-2-III; 33345-1-III
State v. Colley


After she did so by having the deputy explain the identity produced and how Ms. Estrada

did not resemble that person, the prosecutor again asked the same question without

objection and the deputy answered that she was not. Mr. Colley now contends that

question invaded the province of the jury. In this instance, it did not.

       In context, the prosecutor was simply attempting to get the deputy to explain the

course of the investigation--the occupants had produced false identification and the

deputy had to dig further to find their truthful identities. The question was

unartful--defense counsel both explained how the prosecutor should have asked the

question and later demonstrated in his questioning of Ms. Estrada--but it was not an

attempt at soliciting an opinion about the credibility of Ms. Estrada's (then non-existent)

testimony. She was not a scheduled witness for the State and this does not appear to be a

case of preemptive impeachment of a defense witness. 2 This simply was an attempt to

explain the course of events. The trial judge's ruling also suggests he heard the question

in the same manner since he directed counsel to provide a foundation for the statement

rather than direct the prosecutor to rephrase the question.




       2
          Interestingly, not only did defense counsel have Ms. Estrada explain that she lied
about her identity and why she did so, counsel also impeached her with several prior
felony convictions. To the extent the prosecutor's question could be interpreted as
calling for an opinion about Ms. Estrada's honesty, it was consistent with the defense
effort to paint Ms. Estrada as the bad actor in this case.

                                              9
No. 33344-2-111; 33345-1-111
State v. Colley


       To the extent that the question and answer could have been misconstrued as a

comment on Ms. Estrada's credibility, the defense should have renewed its objection to

the final question. The failure to do so arguably waives the current objection. But, even

if the issue is preserved and the answer was erroneous, it was not harmful in the least. If

it had been construed as an opinion about honesty, it was one that supported the defense

efforts rather than harming them.

       The inartful question did not prejudice the defense. None of the errors or alleged

errors, individually or cumulatively, affected the fairness of the trial. The convictions are

affirmed.

       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.




WE CONCUR:




    ditikw ~, ~-
       Siddoway, J.



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