                                                                                                                             FILED
                                                                                                                   COURT OF APPEALS
                                                                                                                        DIVISION II

                                                                                                                 2015FE8 1 D AN 8: 58
                                                                                                                 ST           V"
                                                                                                                       u"5         lt   TON
                                                                                                                  BY




        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                          DIVISION II

 STATE OF WASHINGTON,                                                                           No. 45353 -3 - II


                                               Respondent,


              v.



 BRYAN ALLEN WEAVER,                                                                 UNPUBLISHED OPINION


                                               Appellant.


          SUTTON, J. —              Bryan Allen Weaver appeals his conviction for first degree trafficking in

stolen    property.          Weaver     argues       that the trial   court   erred   by (      1)    admitting evidence that he

concealed himself from the arresting sheriff s deputies and (2) imposing legal financial obligations

 LFOs)        without      considering his financial        resources.     He requests reversal and remand for a new


trial   or,    alternatively,       remand     for resentencing.       Holding      that ( 1)        the trial court did not err in


admitting evidence of Weaver' s condealment, but if it did the error was harmless, and ( 2) Weaver

cannot object to the imposition of LFOs for the first time on appeal, we affirm.

                                                               FACTS


              A school bus driver reported to the Cowlitz County Sheriff' s Office that she had observed

two men in a car circle a parking lot and stop at a drain grate. The two men got out of the car and

looked        at   the   grate;   the driver   got   back in the driver'   s seat    and the         passenger   directed the driver
No. 45353 -3 -II




closer to the grate. The passenger picked up the grate, placed it in the car' s trunk, and got back in

the car before the driver sped out of the parking lot.

          Later than same day, using the license plate number and vehicle description provided by

the bus driver, sheriff deputies contacted Bryan Allen Weaver and his friend, Louis Hardrock


Younger. Before questioning Weaver, one of the deputies advised Weaver of his Miranda' rights

and asked       him if he      would    give   a statement about         the incident.      Weaver said that he and his


girlfriend had used the car described by the bus driver to collect scrap metal and admitted that he

met with       Younger in the parking lot          earlier   that   day. Weaver explained that Younger had put

    something" in the car' s trunk, although Weaver didn' t know what the object was, and the two of

them exchanged the object at a scrap metal shop for nine dollars. Verbatim Report of Proceedings

 VRP) at 67. A receipt obtained by the deputies confirms that Weaver sold metal at the scrap shop

that day.

          The day after Weaver' s interview, deputies arrested Younger in his home, which was

across    the   street   from Weaver' s home.          The deputies then crossed the street to arrest Weaver.


Cheryl Rapp, Weaver' s girlfriend' s mother, directed the deputies to look for Weaver outside, but

they    were unable      to   locate him.      Returning to the inside of the home, one of the deputies found

Weaver in       a child' s    bedroom   under a pile of "blankets on         the floor that   were   moving." VRP at 56.


Rapp pulled back the blankets, but Weaver ignored both deputies and continued his " sleeping ruse"
                                                                                               2
until   they    announced      their   presence and asked      him to      show   his hands.       VRP   at   57.   The State,




1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

2
    Before trial, Weaver        objected    to this   testimony     as   irrelevant   and   unduly   prejudicial.    The trial

court overruled Weaver' s objection and allowed the testimony.


                                                                2
No. 45353 -3 -II




during closing argument, told the jury that Weaver had been " hiding" from arrest for an offense

that " he [ knew he       was] a suspect    in." VRP at 112.


           The jury returned a guilty verdict on one count of first degree trafficking in stolen property.

At sentencing, the trial court imposed LFOs.3 In its judgment and sentence, the trial court included

boilerplate language stating that it found Weaver had the ability to pay or " likely future ability to

pay" the imposed LFOs. Clerk' s Paper                at   31. Weaver appeals.


                                                          ANALYSIS


                                            I. EVIDENCE OF CONCEALMENT


           Weaver argues that the trial court abused its discretion when it admitted evidence that he

concealed himself from the deputies because the evidence was not probative and the trial court did


not conduct any analysis on the record regarding its admissibility. The trial court did not err, but
if it had erred the error was harmless.


                                         A. Consciousness of Guilt Inference


           We review evidentiary rulings for abuse of discretion. State v. Franklin, 180 Wn.2d 371,

377    n. 2,   325 P. 3d 159 ( 2014).     A trial court abuses its discretion when the decision was manifestly

unreasonable or based upon untenable grounds or reasons. State v. Garcia, 179 Wn.2d 828, 844,

318 P. 3d 266 ( 2014).


           Evidence of concealment is analyzed under the same rules as evidence of flight because

our    law does     not   define   what circumstances constitute          flight.   State v. McDaniel, 155 Wn. App.




3
    The trial    court   imposed the    following    LFOs: ( 1) $ 500. 00     for   the        penalty assessment, ( 2)
                                                                                          victim

    600. 00 in    court   costs, (   3) $ 825. 00 for     a court appointed     attorney, ( 4) $ 100. 00 for the DNA
    deoxyribonucleic       acid) collection   fee,   and ( 5)   $ 149. 19 in restitution.



                                                                  3
No. 45353 -3 - I1



829, 854, 230 P. 3d 245 ( 2010).           Evidence of concealment is admissible " if the trier of fact can


reasonably infer the defendant'        s consciousness of guilt of the charged crime."            McDaniel, 155 Wn.


App.    at   854.    Because such evidence tends to only be " marginally probative" as to the person' s

guilt   or    innocence, the inference       of consciousness    of guilt must    be "      substantial   and real,     not




speculative, conjectural,       or   fanciful."   State v. Freeburg, 105 Wn. App. 492, 498, 20 P. 3d 984

 2001).      The    probative value of evidence of concealment         depends   on   the "'   degree of confidence "'


with which         four inferences   can   be drawn from the    circumstances of       the defendant'     s arrest: (    1)


from the defendant' s behavior to          concealment; ( 2)   from   concealment     to   consciousness of guilt; (3)




from consciousness of guilt to consciousness of guilt concerning the crime charged; and ( 4) from

consciousness of guilt concerning the crime charged to actual guilt of the crime charged.

McDaniel, 155 Wn. App. at 854 ( quoting Freeburg, 105 Wn. App. at 498).

             The trial court did not abuse its discretion in admitting evidence of Weaver' s concealment

because the circumstances of Weaver' s arrest lead to an inference that he concealed himself from

the   officers.      At the time officers came to his home to arrest him, Weaver knew that deputies

suspected that he stole the metal grate because they had interviewed him about it. He admitted to

the deputies that he was at the parking lot with Younger and that he sold the object that Younger

put in the trunk at the scrap shop that day; he claimed only to not know what the object was. Before

the officers came to his home to arrest him, they had just arrested Younger across the street. One

of the deputies found Weaver under blankets in a child' s bedroom after Rapp had directed the

deputies to look for Weaver outside.


             Considering the entirety of the circumstances of the deputies' investigation and Weaver' s

knowledge of it, the jury .could have reasonably inferred that Weaver' s concealment demonstrated


                                                           4
No. 45353 -3 -II




his   consciousness of guilt of        the    charged crime.            The trial court did not abuse its discretion by

admitting this evidence.

                                                        B. Harmless Error


         Weaver next argues that the testimony that deputies found Weaver underneath blankets in

a child' s bedroom, after they were looking for him to arrest him, had a reasonable probability of

materially affecting the trial outcome because the State used this evidence to argue that the jurors

should find Weaver guilty. We disagree.

         Erroneous admission of evidence is grounds for reversal only if the error was prejudicial.

Garcia, 179 Wn.2d         at    848.   An    error     is '   not prejudicial unless, within reasonable probabilities,



the   outcome of    the trial   would   have been materially             affected   had the   error not occurred.'   Garcia,


179 Wn.2d    at    848 ( quoting State      v.   Bourgeois, 133 Wn.2d 389, 403, 945 P. 2d 1120 ( 1997)). Where


improperly admitted evidence was of "minor significance" compared to the evidence as a whole,

the error was harmless. Bourgeois, 133 Wn.2d at 403.


         Even if admission of Weaver' s concealment was in error, we conclude that there is no


reasonable probability that the trial outcome would have been different had the trial court excluded

this   evidence.    The bus driver observed two men drive around a parking lot and stop to look at a

drain grate; one of the men drove closer to the grate and the other man threw the grate in the trunk

before they drove off. Weaver admitted to being in the parking lot with Younger and in the car

described by the bus driver, and to exchanging the object that Younger put in the trunk at a scrap

metal    shop.     He   claimed    only to       not   have known        what the object was.        Evidence of Weaver' s


concealment cannot be said to have affected the trial outcome.




                                                                    5
No. 45353 -3 -II



                                                  II. IMPOSITION of LFOs


          Weaver next argues that the trial court erroneously imposed LFOs because it did not

discuss on the record his ability to pay them.4 In its judgment and sentence, the trial court found

that Weaver had the ability to pay its imposed LFOs after considering Weaver' s financial

resources. Weaver did not object to this finding or to the trial court' s imposition of LFOs. Because

Weaver did not object below, we decline to address the merits of his claim of error on appeal.


          RCW 10. 01. 160( 3) prohibits the trial court from imposing LFOs unless the defendant has

or will   have the ability to pay them.             To determine the proper dollar amount to impose, the trial


court must consider the defendant' s financial resources and the " nature of the burden that payment

of costs will   impose." RCW 10. 01. 160( 3).              The trial court is not constitutionally required to make

these   considerations at         sentencing, however.        State v. Blank, 131 Wn.2d 230, 241 -42, 930 P. 2d


1213 ( 1997).    The trial court is not required to make formal findings on the defendant' s ability to

pay until the State seeks to collect payment of LFOs. Blank, 131 Wn.2d 242.

          If a claim of error is not of constitutional magnitude and the appellant did not raise it in the

trial court, we may      refuse      to   review   the   claim of error under        RAP 2. 5(   a).   All three divisions of


our court have held that a defendant' s failure to object to the trial court' s imposition of


discretionary    LFOs        at   the time   of   sentencing is     a   failure to   preserve error on appeal.       State v.


Blazina, 174 Wn.       App.       906, 911, 301 P. 3d 492,      reviewed granted,         178 Wn. 2d 1010 ( 2013); State




4
    Weaver does    not challenge          the imposition   of the   $ 500. 00   victim   penalty   assessment,   the $ 100. 00

DNA      collection   fee,   or   the $   149. 19 in restitution. He challenges only the discretionary LFOs of
    600. 00 in court costs and $ 825. 00 for his court- appointed attorney.

                                                                6
No. 45353 -3 - II



v.   Calvin, 176 Wn.          App.       1, 316 P. 3d 496, 507 -08 ( 2013), petition for review filed, No. 89518 -0


 Wash. Nov. 12, 2013); State                v.   Duncan, 180 Wn.            App.   245, 253, 327 P. 3d 699 ( 2014). Although


Division Two considered the merits of Bertrand' s claim of error for imposition of LFOs in State

                    5
v.   Bertrand,          we   are   not    compelled      to   do   so   in every case.      Blazina, 174 Wn. App. at 911

 explaining that review of Bertrand' s claim was warranted because she had disabilities that might

reduce her future ability to pay, but nothing suggested that Blazina' s case was similar to compel

review of         his   claim).    Here, like Blazina, the record does not suggest that Weaver faces unique

circumstances that should compel us to review the trial court' s imposition of LFOs. Thus, because

Weaver did not preserve the issue for appeal, we decline to address the merits of his appeal on this

issue.


             We     affirm,    holding       that ( 1)    the trial court' s admission of evidence of Weaver' s


concealment was not erroneous but would have been harmless if admission was in error and ( 2)




5
     State   v.   Bertrand, 165 Wn.         App.   393, 404, 267 P. 3d 511 ( 2011), review denied, 175 Wn.2d 1014
    2012).



                                                                        7
No. 45353 -3 -II



Weaver cannot raise his objection to the trial court' s imposition of LFOs for the first time on

appeal.




          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.




                                                   A______/
                                                       4'41'
                                                    Sutton, J.
                                                                      el,..




We concur:




          eveutsd„..
Wors. ick, P. J.
