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                                                                                                        2014 JAN 28
                                                                                                                    AN 9: 55
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

STATE OF WASHINGTON,                                                                No. 43782 -1 - II


                                   Respondent,


          V.



TODD JAMES WIXON,                                                          UNPUBLISHED OPINION




          JOHANSON, J. —     Todd James Wixon appeals his jury trial convictions for attempting to

elude a pursuing police vehicle, driving under the influence of intoxicants, reckless driving, and

resisting arrest. He argues that the trial court improperly admitted evidence of his prior offenses

under ER 609 because his sentences for these offenses had expired more than 10 years earlier.


Because Wixon failed to preserve this issue for appeal, we affirm.

                                                          FACTS


          On January 17, 2012, the State charged Wixon with attempting to elude a police vehicle,'
                                                      2
driving   under   the influence   of   intoxicants,       reckless   driving, 3   and resisting arrest.4 Trial started

in July 2012.



 RCW 46. 61. 024.


2 Former RCW 46. 61. 502 ( 2011).

3 Former RCW 46. 61. 500 ( 2011).

4 RCW 9A.76. 040.
No. 43782 -1 - II


          Before       Wixon testified, the              State moved to admit evidence         of several crimes of


dishonesty for impeachment purposes under ER 609( a). 5 Wixon was convicted for these crimes
and   for first degree       murder      in 1979. He was sentenced to 5 years of confinement for each crime


of dishonesty and to 26 years of confinement for the first degree murder conviction; the

sentences ran concurrently; he was released from prison in 2005.

          The State argued that the crimes of dishonesty were admissible under ER 609( a) and ( b)

because Wixon had been released from physical custody in 2005, less than 10 years before the

trial.   Wixon did not argue that the convictions were not admissible as impeachment evidence

under    the 10 -year limitation in ER 609( b).               Instead, he agreed that the 10 -year limitation had not


started   to   run until     he   was released      from   prison —but argued that despite this, the trial court could


refuse to admit this evidence because it was unfairly prejudicial given the crimes themselves

were so old.




           The trial court ruled that the second degree possession of stolen property and the three

taking a motor vehicle without permission convictions were admissible under ER 609. The court

commented, "          And they'     re not    going --     they' re not going to be questioning any kind of a stale

date.     And, of course, if that' s brought up, that will be at the peril of the defense and [ the State

will]    be    able   to   bring   out   that it   was   tolled because he didn' t   get out of prison until   2005."   4


Report of Proceedings at 19.


           The jury found Wixon guilty as charged. He appeals.




5 These convictions were for one count of first degree possession of stolen property, two counts
of second degree burglary, and three counts of taking a motor vehicle without permission.

                                                                  2
No. 43782 -1 - II



                                                             ANALYSIS


              Wixon contends that the trial court erred in admitting evidence of the four crimes of

dishonesty. He argues that the trial court erred in considering his date of release from prison

rather than the expiration of his sentences in determining when the 10 -year tolling period in ER
          6           7
609( b)       started .   We decline to address this issue because Wixon failed to preserve it.

              Although Wixon          asserts    that he "   objected"     to the admission of the prior offenses, the


record    does     not show         that Wixon       objected on   the   grounds   he   now raises.    RAP 2. 5( a) provides


that we may refuse to address an alleged error that the appellant failed to raise in the trial court

unless    that    error   is   a manifest constitutional error.            Errors in admitting impeachment evidence

under     ER 609      are not of constitutional            dimension.      See State v. Ray, 116 Wn.2d 531, 546, 806

P. 2d     1220 (     1991) (        admission        of   evidence       under   ER     609( a)   is   reviewed   under   the


 nonconstitutional             harmless      error   standard"   and holding erroneous decisions under ER 609( a)




6 ER 609(b) provides,
              Time Limit. Evidence of a conviction under this rule is not admissible if a period
              of more than 10 years has elapsed since the date of the conviction or of the release
              of the witness from the confinement imposed for that conviction, whichever is the
              later date, unless the court determines, in the interests of justice, that the probative
              value   of   the  conviction   supported    by specific facts and circumstances
              substantially     outweighs      its   prejudicial effect.    However, evidence of a conviction
              more   than      10    years    old    as   calculated     herein, is not admissible unless the
              proponent gives to the adverse party sufficient advance written notice of intent to
              use such evidence to provide the adverse party with a fair opportunity to contest
              the use of such evidence.



7 Wixon also argues that ( 1) if the trial court erred in calculating the 10 -year tolling period, the
admission of the crimes of dishonesty was improper because these offenses were unfairly
prejudicial because of their age; and ( 2) admission of these convictions was not harmless error.
Because Wixon has failed to preserve his ER 609 argument, we do not address these issues.

                                                                     3
No. 43782 -1 - II



are not of constitutional       dimension).     Also, Wixon' s failure to raise this issue in the trial court

                                          8
precludes review under      ER 103( a)   .    Thus, we decline to address this issue.


         We affirm.


         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.


                                                                                               M




                                                                    SON, J.
We




W     RSWICK, C. J.



BTU
      RGF" , J.




8
    ER 103( a) provides in part,
          Error may not be predicated upon a ruling which admits or excludes evidence
          unless a substantial right of the party is affected, and
                   1)  Objection. In case the ruling is one admitting evidence, a timely
          objection or motion to strike is made, stating the specific ground of objection, if
          the specific ground was not apparent from the context.
    Emphasis added.)
                                                          4
