                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                       December 27, 2017
      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 49003-0-II

                                Respondent,                   UNPUBLISHED OPINION

          v.

    MATTHEW J. PERRON,

                                Appellant.

         BJORGEN, C.J. — Matthew Perron appeals his second degree burglary conviction,

asserting that the trial court erred by admitting propensity evidence in violation of ER 404(b).1

We agree and therefore reverse his conviction and remand to the trial court.

                                              FACTS

         On March 8, 2014, Brandy Hinesly was working as an asset protection associate at an

Aberdeen Walmart store2 when she saw a male and a female in the electronics section of the

store. Hinesly later identified the male and female as Perron and Perron’s girlfriend, Ashley

Young. Hinesly saw Perron select a speaker and leave the electronics section of the store.

Hinesly then saw Perron remove the speaker’s packaging and conceal the speaker in his pants,

after which Hinesly contacted the police. Police officers arrived and detained Perron and Young

as they attempted to leave the store. After police officers escorted Perron and Young to



1
 Perron also requests that we exercise our discretion to waive appellate costs in this matter.
Because Perron’s current or likely future ability to pay appellate costs may be addressed by a
commissioner of this court under RAP 14.2, we defer this matter to our commissioner in the
event that the State files a cost bill.
2
    Walmart store is also referenced in the record as Wal Mart and Wal-Mart.
No. 49003-0-II


Hinesly’s office, Hinesly issued the couple a written trespass notice that prohibited their entry

into any Walmart store.

          On October 10, 2015, Abigayle Frias was working as an asset protection associate at the

same Aberdeen Walmart. Frias saw a male, whom she later identified as Perron, drop an empty

knife package onto the floor, select a speaker from the electronics section of the store, and then

run out of the store without paying for the speaker. When reviewing a security video recording

of the incident, Frias noticed that Perron had removed the electronic security device that had

been fastened to the speaker. Frias was again working at Walmart on November 3, 2015, when

she saw Perron in the store. Frias called the police, and an officer arrived and made contact with

Perron.

          The State charged Perron with second degree burglary based on his alleged conduct

during the October 10 incident. Before trial, Perron moved to exclude evidence of the March 8,

2014 incident apart from the fact that he was allegedly issued a trespass notice on that date.3

Perron argued that the March 8 conduct forming the basis for the issuance of the trespass notice

was not relevant to whether he committed second degree burglary on October 10 and that the

evidence of his conduct on March 8 was highly prejudicial.

          The State argued as follows:

          I don’t necessarily think it’s appropriate to go into the details of [the March 8
          incident] immediately, up front. But if [defense counsel’s] argument is going to be




3
  Perron also moved to exclude evidence concerning certain details of the November 3 incident.
The trial court granted the motion in part, and there is no issue regarding that ruling before us in
this appeal.

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No. 49003-0-II


       an issue of identity, which I believe it is, since he has indicated an alibi witness,
       then I think there is sort of a modus operandi here, he stole a speaker in the March
       incident where he was trespassed, and then again in the October incident. And so,
       common scheme or plan definitely applies here. It’s not being introduced to show
       that he acted in conformity therewith. It’s being introduced to sort of rebut this
       argument that this is not the same person, it’s relevant, it makes it more likely that
       it was, in fact, the same person.

Report of Proceedings (RP) (Pretrial Hearing) at 5-6.

       The trial court denied Perron’s motion to exclude evidence of the March 8 incident,

reasoning:

       Mr. Perron, as I understand it, is denying that he was notified that he wasn’t
       supposed to be in Wal Mart and has otherwise put the State to its burden on all of
       the elements of the crime.
               The elements of this crime include proof that Mr. Perron lacked permission
       to be in this otherwise public place, and you just pointed out, [defense counsel],
       that he is denying that he received a written notice that he wasn’t supposed to be
       there; I think that makes everything that happened on March 8th, admissible. It
       may be prejudicial as the State pointed out in its trial brief, almost all relevant
       evidence in a criminal case is prejudicial against the defendant because it tends to
       prove guilt, that’s why the State is offering it.
               ....
               And, so, I think the State should be allowed to prove what occurred on
       March 8th, that Mr. Perron was in the store, that there was at least an attempted
       theft of speakers, that he was taken into custody, and that during that process he
       was notified that he could no longer come into the Wal Mart store, and that he was
       with Ashley Young. I don’t even think that’s a rebuttal issue, I think it’s just part
       of what happened. I think what happened on March 8th of 2014 is relevant material
       to the elements of the crime for which Mr. Perron is on trial today.

RP (Pretrial Hearing) at 9-11. The matter proceeded to a jury trial.

       At trial, Hinesly and Frias testified consistently with the facts as stated above.

Additionally, Hinesly testified that Perron was uncooperative and threatened violence while the

trespass notice was being explained to him. Hinesly also testified that it is her standard practice




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No. 49003-0-II


to offer a suspected shoplifter a copy of the written trespass notice, but she could not remember

if Perron had accepted a copy of the notice.

        Aberdeen police officer Gary Sexton testified that he was present when Perron was

issued the written trespass notice and that he had signed the notice as a witness. A copy of the

written trespass notice was admitted as a trial exhibit. During Frias’ testimony, a video

recording of Perron’s alleged conduct on October 10 was admitted as evidence and played for

the jury.

        Young testified for the defense. She stated that neither she nor Perron were ever

informed that they were not permitted to enter Walmart. Young also stated that Perron was with

her in Tacoma the entire day of October 10, 2015. Perron similarly testified that he was never

issued a trespass notice or otherwise notified of being prohibited from entering Walmart. He

also denied entering Walmart on October 10 and denied that he was the person on the security

video recording taken on that date.

        The jury returned a verdict finding Perron guilty of second degree burglary. Perron

appeals from his conviction.

                                           ANALYSIS

        Perron contends that the trial court violated ER 404(b) by permitting testimony about his

alleged conduct on March 8 that led to the issuance of the trespass notice against him. We agree.

        We review a trial court’s interpretation of ER 404(b) de novo. State v. Fisher, 165

Wn.2d 727, 745, 202 P.3d 937 (2009). If the trial court’s interpretation of ER 404(b) is correct,

we review its decision to admit evidence subject to ER 404(b) for an abuse of discretion. Fisher,

165 Wn.2d at 745. A trial court abuses its discretion when its decision is manifestly


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No. 49003-0-II


unreasonable or based on untenable grounds. State v. Hassan, 184 Wn. App. 140, 151, 336 P.3d

99 (2014).

       Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity therewith.” However, evidence

of other acts may be admissible “for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b). Before a

trial court admits evidence under ER 404(b), it must (1) find by a preponderance of the evidence

that the misconduct occurred, (2) identify the purpose for admitting the evidence, (3) determine

the relevance of the evidence to prove an element of the crime, and (4) weigh the probative value

of the evidence against its prejudicial effect under ER 403. State v. Gunderson, 181 Wn.2d 916,

923, 337 P.3d 1090 (2014).

       Perron challenges the trial court’s ruling only with regard to (1) the purpose for which the

evidence of other acts was admitted and (2) the ER 403 balancing analysis. We address each

challenge in turn.

A.     Purpose for Admitting Other Acts Evidence

       Based on its statements that Perron’s conduct on March 8 was “just part of what

happened” leading to the charged burglary, we conclude that the trial court admitted evidence of

Perron’s conduct on March 8 under the res gestae exception to ER 404(b). RP (Pretrial Hearing)

at 10-11. In doing so, the trial court abused its discretion.

       In addition to the exceptions expressly identified in ER 404(b), Washington courts have

recognized a res gestae or “same transaction” exception, in which evidence of prior crimes is

admissible if it is “so connected in time, place, circumstances, or means employed that proof of


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No. 49003-0-II


such other misconduct is necessary for a complete description of the crime charged, or

constitutes proof of the history of the crime charged.” 5 Karl B. Tegland, WASH. PRAC.,

EVIDENCE § 115, at 398 (3d ed. 1989); State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).

       Once the trial court has found res gestae evidence relevant for a purpose other than
       showing propensity and not unduly prejudicial, that evidence is admissible under
       the res gestae exception to ER 404(b), so long as the State has shown by a
       preponderance of the evidence that the uncharged crimes occurred and were
       committed by the accused.

Lane, 125 Wn.2d at 834.

       Here, the trial court noted that, to convict Perron of second degree burglary, the State was

required to prove that he had unlawfully entered Walmart on October 10, 2015. See RCW

9A.52.030(1). The trial court further noted that evidence of Perron’s receipt of the trespass

notice against him on March 8, 2014 was critical for the State to meet its burden of proving

Perron’s unlawful entry because Walmart is a store held open to the public. The trial court then

determined that Perron’s conduct on March 8 was relevant to show the circumstances

surrounding the issuance of the trespass notice and to rebut Perron’s defense that he was never

issued a trespass notice on that date.

       Without doubt, evidence of the March 8 trespass notice was relevant to prove that Perron

unlawfully entered the Walmart on October 10. The unlawful entrance, in turn, was an element

of the charged second degree burglary on October 10. Thus, the trial court properly admitted

evidence that the trespass notice had been issued to Perron. However, to the extent the court

ruled that the details on the March 8 incident were admissible under the res gestae exception

merely because they pertained to the circumstances of the trespass notice, it erred. As noted, the




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No. 49003-0-II


Supreme Court has held that evidence is admissible as res gestae only if, among other

requirements, it is “relevant for a purpose other than showing propensity.” Lane, 125 Wn.2d at

834. Without some relevance to whether the trespass notice was in fact issued, the details of the

March 8 incident would fail this test.

       The trial court also ruled that the details of the March 8 incident were relevant to rebut

Perron’s claim that he was never issued a trespass notice based on that incident. Evidence that

Perron shoplifted on March 8 would tend to make issuance of the notice on that date more likely.

Thus, the trial court appropriately recognized that the details of the March 8 incident had some

relevance to the legitimate purpose of proving that Perron was issued the notice. However, the

details of the incident also plainly invite the jury to convict on the basis of Perron’s propensity to

rob department stores, a purpose forbidden by ER 404(b). The tension between those purposes is

resolved through the ER 403 balancing test, discussed below.

       Before turning to that test, we note that the State also argues that the details of the March

8 incident were relevant under ER 404(b) to show identity: that Perron was the same individual

who was issued the trespass notice on March 8 and who carried out the theft on October 10. Our

Supreme Court has held that when evidence of other acts is introduced to show identity by

establishing a unique modus operandi, the evidence is relevant to the current charge

       “only if the method employed in the commission of both crimes is ‘so unique’ that
       proof that an accused committed one of the crimes creates a high probability that
       he also committed the other crimes with which he is charged.”

State v. Foxhoven, 161 Wn.2d 168, 176, 163 P.3d 786 (2007) (quoting State v. Thang, 145

Wn.2d 630, 643, 41 P.3d 1159 (2002)). Other act evidence “‘is not admissible for this purpose




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No. 49003-0-II


merely because it is similar, but only if it bears such a high degree of similarity as to mark it as

the handiwork of the accused.’” State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984)

(quoting United States v. Goodwin, 492 F.2d 1141, 1154 (5th Cir. 1974)).

       Here, the trial court made no finding on similarity in admitting the evidence at issue

under the res gestae exception to ER 404(b). The evidence weighing in favor of similarity is that

(1) the thefts took place at the same Walmart and (2) both cases involved the theft of a speaker.

These generic correspondences do not reach the “‘high degree of similarity’” that marks the act

“‘as the handiwork of the accused.’” Coe, 101 Wn.2d at 777 (quoting Goodwin, 492 F.2d at

1154). Under our case law, the details of the March 8 incident were not admissible under ER

404(b) to show identity.

B.     ER 403 Balancing

       Having determined that Perron’s conduct on March 8 had some relevance to rebut his

contention that he was never issued a trespass notice, we now turn to whether the trial court

abused its discretion in concluding that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice. We hold that the trial court abused its discretion

in making this conclusion.

       ER 404(b) must be read in conjunction with ER 403. State v. Smith, 106 Wn.2d 772,

775, 725 P.2d 951 (1986). “ER 403 requires exclusion of evidence, even if relevant, if its

probative value is substantially outweighed by the danger of unfair prejudice.” Smith, 106

Wn.2d at 776.




                                                  8
No. 49003-0-II


       The details of Perron’s shoplifting on March 8 only obliquely support that he was issued

a trespass notice on that date. Much stronger and more direct evidence of issuance lies in

Hinesly’s testimony that she issued the couple a written trespass notice. Hinesly also testified

that it is her standard practice to offer a suspected shoplifter a copy of the written trespass notice,

but she could not remember if Perron had accepted a copy of the notice. Finally, Officer Sexton

testified that he was present when Perron was issued the written trespass notice and that he had

signed the notice as a witness. To this direct evidence of issuance, the details of the March 8

incident would add only a whisper of support.

       On the other hand, the prejudicial effect of this evidence is unmistakable. The knowledge

that Perron had previously robbed the same store of the same sort of product is an invitation to

convict on the basis of propensity that a jury could only refuse with great difficulty. We

recognize that the jury was made aware through ER 609 impeachment evidence that Perron had a

previous conviction for third degree theft, as well as a previous conviction for possession of

stolen property and three convictions for making a false statement. Nonetheless, evidence that

he had robbed the same store of the same sort of product is much more potent propensity

evidence than is this list of other convictions. The details of the March 8 incident were

prejudicial in their Siren-like invitation to convict Perron on the basis of propensity to commit

the offense.

       In light of these considerations, we hold that the danger of unfair prejudice from




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No. 49003-0-II


admitting the details of the March 8 incident well outweighed their slight relevance in showing

issuance of the trespass notice. The trial court abused its discretion in concluding to the contrary.

Accordingly, we hold that the trial court erred in admitting evidence of the details of the March 8

incident.4

                                           CONCLUSION

         We reverse Perron’s second degree burglary conviction and remand to the trial court.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                       BJORGEN, C.J.
    We concur:



    WORSWICK, J.




    MAXA, J.




4
    The State does not argue that any error was harmless.

                                                  10
