        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,                        )          No. 77903-6-1
                                                )
                     Respondent,                )          DIVISION ONE
                     1                          )
             v.                                 )          UNPUBLISHED OPINION
                                                )
CRUZ ROBERT BLACKSHEAR,                         )
                                                )
                     Appellant.                 )
                                                )          FILED: July 29, 2019

        HAZELRIGG-HERNANDEZ, J. — Cruz Blackshear seeks reversal of his

conviction for one count of violation of two separate domestic violence no-contact

 orders with two prior convictions for violating the provisions of an order. He argues

that the trial court erred in admitting evidence of five prior convictions for violation

 of a court order and that the State's evidence was insufficient to prove beyond a

 reasonable doubt that he knowingly violated the orders. Because the trial court

 did not abuse its discretion in admitting the only prior conviction challenged at trial

 and a rational finder of fact could conclude that he knowingly violated the orders,

 we affirm in large part. In light of State v. Ramirez,1 the case is remanded for an

 order striking the criminal filing fee and biological sample fee.




        1 191 Wn.2d 732,426 P.3d 714(2018).
No. 77903-6-1/2

                                     FACTS

      Cruz Blackshear was ordered to have to have no contact with Shannon
                i
McCarty by two separate court orders issued in February and July 2016.

Blackshear's signature appeared on the first order acknowledging receipt, while

the second indicated that he refused to sign but was present and served with a

copy of the order. Both orders contain the following language: "You can be

arrested even if the person protected by this order invites or allows you to violate

the order's prohibitions. You have the sole responsibility to avoid or refrain from

violating the order's provisions. Only the court can change the order upon written

request."

       In August 2017, a plainclothes police officer in an unmarked vehicle saw

Blackshear and McCarty at a park together. The officer recognized them from a

prior incident in April 2017 when Blackshear was arrested for violating the same

no-contact orders. He confirmed their identities by looking at photographs from

the Department of Licensing. The officer also performed a records check and

found that there were two active, valid no-contact orders listing Blackshear as the

respondent and McCarty as the protected party. Uniformed officers arrived and

arrested Blackshear. When questioned about their identities, both Blackshear and

McCarty separately told officers that McCarty's name was Jasmine Baker.

       The State's amended information charged Blackshear with violations of two

no-contact orders issued on February 13, 2016 in Lynnwood Municipal Court and

July 1, 2016 in King County Superior Court. This charge also alleged that




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No. 77903-6-1/3

Blackshear had at least two prior convictions for violating the provisions of similar

orders, which elevated the current offense to a felony.

       During pretrial motions, the State proposed a jury instruction regarding five

numbered exhibits showing judgments entered against Blackshear that it

anticipated offering into evidence. The instruction directed the jury to accept as

true that Blackshear was the person convicted in each of the judgments and that

each of the convictions were based on violations of court orders issued under RCW

26.50.110(5). Blackshear's counsel responded:

               Your Honor, the State is seeking to admit five prior
       convictions, and they only need to have two. So 1 am not quite sure
       why they are seeking to admit five at the evidentiary stage.
               And while yes, we would stipulate that this—the defendant
       was the person named in the exhibits, I am concerned that the State
       is seeking to bring in so many exhibits.
               One in particular refers to the fact that it was a felony and then
       reduced to a misdemeanor. I think that's the most recent one, and
       it's going to be proposed exhibit, I think, 7, but they haven't been
       numbered yet so I am not sure.
               And given that the State is seeking to admit more than is
       necessary for the jury, in particular, I would ask that that one be
       excluded because it contains information that the jury could run with
       and speculate about why it was reduced and things like that.
               And it is repetitive and beyond what the jury needs to find.

The court clarified that"counsel's objection just goes to striking 7 in that instruction,

the reference to 7... and the exhibit?" Defense counsel agreed and explained:

              While the State is entitled to potentially present evidence of
       more than two priors on the theory that the jury may have a problem
       with one of the priors, but they have—without number 7, which I think
       does potentially raise questions among the jurors just because of
       what is in the document, that that would still leave the State with
       plenty of spares if the jurors have problems with any of the priors
       without bringing in potentially prejudicial information that a jury may
       end up speculating about.




                                           3
No. 77903-6-1/4

      The State argued that these prior violations were relevant to show that

Blackshear knowingly violated the no-contact orders and "that it wasn't a mistake,

that he had no reason to trust [McCarty] that [the orders were] lifted because he

had been through this process before." When ruling, the courtframed the objection

as "a requestfrom defense to strike Exhibit Number 7, based on it being Cumulative

and unduly prejudicial." The court ruled that "the evidence is admissible because

the other charges are admissible, and so the motion to strike number 7 is denied."

Defense counsel did not object when the State moved to admit the five exhibits

showing Blackshear's prior convictions into evidence, and the exhibits were

admitted.

      The jury found Blackshear guilty as charged and found by special verdict

that Blackshear and McCarty were members of the same family or household.

Blackshear was sentenced to a total term of confinement of 60 months. He was

ordered to pay a criminal filing fee of $200 and a biological sample collection fee

of $100. He timely appealed.

                                  DISCUSSION

       Blackshear contends that the State presented insufficient evidence to prove

the knowledge element of the charge and that the trial court erred in admitting

evidence of his past convictions for violation of a court order and in imposing

certain legal financial obligations. In a statement of additional grounds for review,

he also contends that the court erred in sentencing him within the standard range.




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No. 77903-6-1/5

I.    Sufficiency of Evidence

       Blackshear argues that the State failed to prove that he knowingly violated

the no-contact orders because McCarty falsely told him the orders had been

dismissed.

       Evidence is sufficient to sustain a conviction if, after viewing the evidence

in the light most favorable to the State, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. State v. Green,

94 Wn.2d 216, 221-22,616 P.2d 628 (1980). "A claim of insufficiency admits the

truth of the State's evidence and all inferences that reasonably can be drawn

therefrom." State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068(1992). We draw

all reasonable inferences in favor of the State. Id. When evaluating the sufficiency

of the evidence, we consider circumstantial and direct evidence equally reliable.

State v. Delmarter, 94 Wn.2d 634, 638,618 P.2d 99 (1980).

       The jury was instructed that, to show that Blackshear committed the crime

of violation of a court order, the State had to prove:(1) that he was the subject of

a no-contact order on August 10, 2017,(2) that he knew of the existence of the

order,(3)that he knowingly violated the order,(4)that he had been convicted twice

before of violating the provisions of a court order, and (5)that the violation occurred

in Washington.     The jury instructions also included an explanation of the

knowledge requirement:

               A person knows or acts knowingly or with knowledge with
       respect to a fact, circumstance, or result when he or she is aware of
       that fact, circumstance, or result. It is not necessary that the person
       know that the fact, circumstance, or result is defined by law as being
       unlawful or an element of a crime.



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No. 77903-6-1/6

              If a person has information that would lead a reasonable
      person in the same situation to believe that a fact exists, the jury is
      permitted but not required to find that he or she acted with knowledge
      of that fact.
              When acting knowingly is required to establish an element of
      a crime, the element is also established if a person acts intentionally.

      Blackshear challenges only the third element of the crime, arguing that the

State failed to prove that he knowingly violated the orders. A certified copy of a

no-contact order with the defendant's signature on it is sufficient evidence to

establish the defendant's knowledge of the order's existence. See State v. France,

129 Wn. App. 907, 911, 120 P.3d 654 (2005)(finding that error in admitting the

defendant's confession of his knowledge of the no-contact order was harmless

when the record contained a certified copy of the no-contact order with the

defendant's signature on it). The jury was required to find that Blackshear had

actual knowledge that the orders were still in place, but was permitted to make

such a finding based on circumstantial evidence. State v. Allen, 182 Wn.2d 364,

374, 341 P.3d 268 (2015).

      The State presented evidence that Blackshear had been arrested in April

2017 for violation of the same no-contact drders. The State's evidence was

sufficient to establish that Blackshear knew of the existence of the orders at least

until April 2017. The only evidence that Blackshear presented to show that he no

longer knew these orders were in place four months later was testimony from his

girlfriend, McCarty, who testified that she falsely told Blackshear that all of the no-

contact orders had been dismissed. However, the State also presented evidence

that both McCarty and Blackshear separately gave the police the same false name

for McCarty when they were apprehended at the park. A rational trier of fact could


                                          6
No. 77903-6-1/7

reasonably infer that the two had made a plan to give a fake name if they were

discovered together because they both knew that the no-contact orders were still

in place. The evidence was sufficient to show that Blackshear knowingly violated

the orders.

II.    Prior Convictions

       Blackshear contends that the trial court erred in admitting evidence of five

of his prior convictions for violation of a no-contact order when the State was

required to prove only two. Generally, a trial court's rulings as to the admissibility

of evidence will not be disturbed absent an abuse of discretion. State v. Pirtle, 127

Wn.2d 628, 648, 904 P.2d 245 (1995). We will only find an abuse of discretion

where a trial court's decision is "manifestly unreasonable, or exercised on

untenable grounds, or for untenable reasons." State ex rel. Carroll v. Junker, 79

Wn.2d 12, 26, 482 P.2d 775 (1971).

       All relevant evidence is admissible except as limited by the other evidentiary

rules. ER 402. Evidence is relevant if it has "any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence." ER 401. Relevant

evidence "may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice" or if it would constitute "needless presentation of

cumulative evidence." ER 403. Evidence of a person's other crimes is not

admissible to prove the person's character "in order to show action in conformity

therewith[,]" but may be admissible for other purposes, including proof of intent,

knowledge, or absence of mistake or accident. ER 404(b).



                                          7
No. 77903-6-1/8

       A. Preservation of Error for Appeal

       The State argues that this issue is not properly preserved for appeal

because defense counsel only objected to the admission of one of the three

challenged convictions at trial and the objection was not based on ER 404(b).

       A defendant fails to preserve an issue for review when he fails to object or

move to strike allegedly erroneous evidence at trial, therefore depriving the trial

court of the opportunity to prevent or cure error. State v. Kirkman, 159 Wn.2d 918,

926, 115 P.3d 125(2007). Appellate courts usually will not consider issues which

were not raised at the trial court, but an appellant may raise an issue for the first

time on appeal if it is a manifest error affecting a constitutional right. RAP 2.5(a)(3).

The erroneous admission of a defendant's other crimes is not an error of

constitutional magnitude. State v. Kidd, 36 Wn. App. 503, 507, 674 P.2d 674

(1983).    Therefore, we will not consider an appeal of allegedly erroneous

admission of other crimes under ER 404(b) unless the issue was raised before the

trial court.

       Although Blackshear raised a vague objection at trial to the admission of

"so many exhibits," the court confirmed that he was only challenging exhibit 7.

Because he did not challenge the admission of the other two prior convictions to

which he now assigns error during pretrial motions or when they were offered into

evidence, Blackshear has waived review of those exhibits.

        The State also argues that Blackshear did not challenge exhibit 7 based on

ER 404(b) at the trial court and therefore cannot raise this issue on appeal. "A
                   1
party may only assign error in the appellate court on the specific ground of



                                           8
No. 77903-6-1/9

evidentiary objection made at trial." State v. Collins, 45 Wn. App. 541, 546, 726

P.2d 491 (1986) (citing State v. Gulov, 104 Wn.2d 412, 421, 705 P.2d 1182

(1985)). An appellant may not assign error "to an evidentiary ruling where the

objection at trial was insufficient to apprise the trial judge of the grounds of

objection asserted on appeal." State v. Maule, 35 Wn. App. 287, 291,667 P.2d 96

(1983).

       Here, Blackshear did not mention ER 404(b) when challenging the

admission of exhibit 7. The court seemed to interpret his objection as a challenge

under ER 403. Although the court did not state this interpretation explicitly, it is

evidenced by the fact that the court mirrored the language of ER 403 when

restating Blackshear's objection to exhibit 7 as "cumulative and unduly prejudicial."

Blackshear's argument was not sufficient to allow the trial judge to assess the

proffered evidence under ER 404(b). We will not evaluate the evidence under ER

404(b)for the first time on appeal.

       B. Admissibility                                        1

       Because Blackshear may only assign error on the ground of his evidentiary

objection at the trial court, we will review the trial court's application of ER 403 to

exhibit 7. The trial court is expected to engage in a balancing test to analyze

whether the probative value of the evidence is substantially outweighed by the

danger of unfair prejudice. State v. Coe, 101 Wn.2d 772,782,684 P.2d 668(1984).

"The balance may be tipped toward admissibility if the evidence is highly probative

or if the undesirable characteristics of the evidence are minimal. Conversely, the
                    11
balance may be tipped towards exclusion if the evidence is of minimal probative



                                          9
No. 77903-6-1/10

value or if the undesirable characteristics of the evidence are very pronounced."

State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987). Although most evidence

is prejudicial in the sense that it is used to convince the jury to come to a specific

conclusion, evidence is unfairly prejudicial if it is "likely to arouse an emotional

response rather than a rational decision among the jurors." Id. "[T]he balancing

test contemplated by ER 403 is left to the discretion of the trial court whose

decision will not be overturned except for abuse." Gulov, 104 Wn.2d at 421.

       When considering whether to exclude exhibit 7, the court weighed the

State's argument that the evidence of the prior convictions would help the State

prove the required element of knowledge against the potential for undue prejudice

or needlessly cumulative evidence. The court found it important that McCarty's

testimony would be attacking the knowledge element. The court denied the motion

to strike, noting that "if there was no independent attack on the knowledge element,

I might grant this motion. But given that the victim is going to try and sort of offer

testimony to weaken that, I think the State is obligated to put forth its best case."

The trial court did not abuse its considerable discretion in admitting the exhibit.

III.   Legal Financial Obligations

       Blackshear contends that the trial court erred in imposing a $200 criminal

filing fee and a $100 biological sample fee on an indigent defendant. The State

argues that the fees were mandated by statute at the time Blackshear was

sentenced, but concedes that they should now be stricken in light of recent

changes to the law. After Blackshear was sentenced, the legislature made it

impermissible to impose discretionary costs on indigent defendants, and the



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No. 77903-6-1/11

Supreme Court held that this change applied prospectively to cases on appeal.

Laws of 2018, ch. 269§ 17(2)(h); Ramirez, 191 Wn.2d at 747. Because the parties

do not dispute this issue, the case should be remanded for an order striking the

criminal filing fee and biological sample fee.

IV.    Statement of Additional Grounds for Review

       In a statement of additional grounds for review, Blackshear challenges his

sentence on two grounds.2 First, he contends that the trial court failed to consider

mitigating circumstances and erred in sentencing him within the standard range.

Second, he contends that the judge was biased against him because Blackshear

had been tried in front of the same judge in a prior prosecution.

       A. Sentencing

       The court may impose any sentence within the applicable standard

sentence range that it deems appropriate. RCW 9.94A.530(1). A sentence within

the standard range for an offense is not appealable. RCW 9.94A.585(1). The court

may impose an exceptional sentence below the standard range if it finds by a

preponderance of the evidence that, to a significant degree, the victim was an

initiator, willing participant, aggressor, or provoker of the incident. RCW

9.94A.535(1)(a).

        Blackshear does not challenge the computation of his offender score or the

standard sentencing range. The State calculated Blackshear's offender score to

be 12. The State listed the standard sentence range for a Level V offense with an



       2 Blackshear also restates his theory of the case as an additional ground for review,
which we construe as another challenge to the sufficiency of the evidence. The issue was
addressed above.
No. 77903-6-1/12

offender score of nine or more is "60-60" months. Blackshear was sentenced to

60 months. Because his sentence was within the standard range, it is not

appealable as a matter of law.

       B. Appearance of Fairness

       Blackshear contends that the trial court refused to consider an exceptional

sentence below the standard range because he had been tried before the same

judge in a prior prosecution for robbery. The judge remarked before jury selection

that he had presided over a prior prosecution of Blackshear for robbery a few years

previously. Defense counsel indicated that she was not aware of that, and the
                  1
court moved on to conduct voir dire. The court made another reference to

Blackshear's prior trial at sentencing. When explaining the policy considerations

underlying the no-contact orders, the court remarked,"One of the things that's kind

of true about you is that you have been involved in a criminal life-style for as long

as I've known you and I don't think this is any different." Blackshear's 2013

conviction for second degree robbery appeared in the State's sentencing

memorandum.

      "Under the appearance of fairness doctrine, a judicial proceeding is valid

only if a reasonably prudent, disinterested observer would conclude that the parties

received a fair, impartial and neutral hearing." State v. Gamble, 168 Wn.2d 161,

187, 225 P.3d 973 (2010). We presume that judges perform judicial functions

without bias. Kay Corp. v. Anderson, 72 Wn.2d 879, 885, 436 P.2d 45 (1967).

Alleged errors usually may not be raised for the first time on appeal. RAP 2.5(a).

Errors affecting constitutional rights are not barred by failure to raise the issue at



                                       - 12 -
No. 77903-6-1/13

the trial court. Id. Complaints under the appearance of fairness doctrine are not of

constitutional magnitude, and must be raised promptly once a party discovers a

basis for'recusal. State v. Blizzard, 195 Wn. App. 717, 725, 381 P.3d 1241 (2016).

"Delaying a request for recusal until after the judge has issued an adverse ruling

is considered tactical and constitutes waiver." Id. at 725-26; see also State v.

Tolias, 135 Wn.2d 133, 140, 954 P.2d 907 (1998) ("A waiver analysis is

appropriate in this case because the record does make clear that Defendant had

ample opportunity to raise the issue but apparently decided to forgo it.")

       The Statement of Additional Grounds does not provide any argument that

this appearance of fairness objection implicated Blackshear's constitutional rights,

nor does it point to any indication that the issue was raised before the trial court.

On the record before us, there does not appear to be justification for reversal on

this basis.

       Affirmed in part, remanded in part.




WE CONCUR:




                                                 -c_Q1)-41-69-Q, ,



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