                                                                           FILED 

                                                                         DEC 30, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )        No. 31698-0-111
                       Respondent,            )
                                              )
       v.                                     )
                                              )
STEVEN LEE SMITH,                             )        UNPUBLISHED OPINION
                                              )
                       Appellant.             )

       FEARING, J. -    Steven Lee Smith appeals his conviction for possession of a stolen

firearm in violation ofRCW 9A.56.31O. On appeal, Smith alleges (1) the trial court erred

by admitting into evidence the firearm in question because the State failed to prove that

the firearm was stolen; (2) the trial court erred when it admitted evidence of other bad

acts; and (3) the State's evidence was insufficient to support his conviction for possession

ofa stolen firearm. We affirm Smith's conviction.

                                          FACTS

       The firearm the State of Washington alleged Steven Smith stole is a Hi-Point

model 995 9mm rifle. On January 2, 2013, Lieutenant Reggie Bartkowski of the

Goldendale Police Department received a report about the Hi-Point stolen rifle. The

owner reported that the rifle was stolen from his vehicle on December 24, 2012, while the
No. 31698-0-III
State v. Smith'


vehicle sat parked in the city of Goldendale. The owner did not know the serial number

of the rifle, and Lieutenant Bartkowski was unable to garner the serial number from the

store where the owner purchased the rifle. Bartkowski entered the owner's description of

the 9mm rifle into the department's computer system.

       On February 4,2013, a confidential infonnant infonned Klickitat County

Detective Michael Kallio that he or she saw three fireanns, including a 9mm rifle, at a

home belonging to Steven Smith. Detective Kallio knew Smith to be a convicted felon.

Based on the information from the infonnant, Kallio procured a search warrant for

Smith's home. Before executing the search warrant, Detective Kallio learned of the

stolen Hi-Point rifle.

       On February 5, 2013, law enforcement officers executed the search warrant on

Steven Smith's residence. During the execution of the search warrant, officers arrested

Smith at his residence. After taking Smith into custody, Detective Michael Kallio read

Smith his Miranda warnings. While still at Smith's residence, Smith identified to officers

the location of six fireanns inside his residence. Smith also informed officers he hid a

9mm Hi-Point rifle in the back of his Dodge Durango.

       Following Steven Smith's disclosure, Detective Kallio secured a search warrant

for Smith's Durango. Officers found the Hi-Point rifle in a hidden storage compartment

in the back of Smith's vehicle. The Hi-Point rifle was the only fireann recovered outside

of Smith's residence.

                                             2
No. 31698-0-III
State v. Smith


       On February 6, 2013, Steven Smith gave Detective Kallio a recorded statement.

Smith stated he purchased the Hi-Point rifle in Goldendale from two individuals for $50

and four grams of methamphetamine. The two individuals from whom Smith purchased

the Hi-Point rifle then divided the money and methamphetamine between themselves and

a third individual.

       On February 7, 2013, the Goldendale Police Department closed its case file on the

Hi-Point rifle reported stolen January 2.

                                      PROCEDURE

       On February 6,2013, the State of Washington charged Steven Smith with seven·

counts of unlawful possession of a firearm, in violation of RCW 9.41.040. These seven

charges are not the subject of this appeal. On March 18,2013, the State amended the

information to include possession of a stolen firearm, in violation of RCW 9A.S6.31 O( 1).

The Hi-Point rifle was the basis of the new charge.

       Prior to trial, the State moved in limine to present ER 404(b) evidence of "other

acts" of Steven Smith. Clerk's Papers (CP) at 103. The State sought to introduce

testimony from Charles Lloyd and Detective Michael Kallio that: (I) Steven Smith

attempted to repay a debt by supplying his creditor with firearms; (2) Smith acquired the

Hi-Point rifle from two individuals for $50 and four grams of methamphetamine; (3)

Smith knew that all guns he previously purchased from one of the sellers were stolen; and

(4) one or two days before Smith's arrest, he was in his Durango with Lloyd, the Durango

                                            3

No. 31698-0-III
State v. Smith


was "armed to the teeth," and Smith told Lloyd that all of the firearms in the vehicle,

including the Hi-Point rifle, were stolen.

       On April 15, 2013, at the motion in limine hearing, the State posited that the

proffered testimony served the purpose of establishing that Steven Smith knew the Hi-

Point rifle was stolen, an element of the crime. During the motion hearing, the State

explained:

              [W]e want to keep this related to the gun charges. Mr. Lloyd also
       has said in his interviews that he was involved in dealing drugs for Mr.
       Smith and various other things that he has testified to, but the state wishes
       to keep this fairly narrow for the purposes just of the gun charges.
              Mr. Smith has admitted to possession of the - of the guns. In fact
       when he spoke to Del. Kallio he even told him where some of them were.
       The key issue in this case is Count 8, and that's the possession of the stolen
       firearm. Mr. Smith is alleging that he had no knowledge that that firearm
       was stolen.

Report of Proceedings (RP) at 55.

      At the hearing, the State clarified that Charles Lloyd would testify that (1) Steven

Smith attempted to repay a debt by procuring between 1,000 and 2,000 firearms for the

creditor; (2) the individual from whom Smith purchased the Hi-Point rifle had supplied

Smith with firearms before, the firearms were stolen, and Smith knew they were stolen;

and (3) the night before Smith's arrest, Smith and Lloyd traveled in Smith's Dodge

Durango, wherein Smith acknowledged that he possessed stolen firearms in the vehicle,

one of which was the Hi-Point rifle. The State argued that the testimony related to

Smith's knowledge that the Hi-Point rifle was stolen, an element of count VIII, and was

                                             4

No.3l698-0-III
State v. Smith


thus proper under ER 404(b). In other words, the State argued that Lloyd's testimony

rendered the fact that the rifle was stolen, and Smith knew of its pilfered nature, more

likely than not. The State also asserted that testimony concerning the transaction during

which Smith obtained the Hi-Point rifle illuminated the circumstances under which he

gained possession and further supported the State's burden of proof. The State

recognized prejudice to Steven Smith of Charles Lloyd's testimony, but noted the close

relevance of the testimony to the elements of the charges. As noted by the State, it would

not offer the testimony unless it had some prejudice to Steven Smith. The State

specifically remarked that the probative value of the evidence outweighed the prejudice.

       Steven Smith objected to the State's offer of testimony on several grounds. First,

the hearing was only two days before trial and the State had not provided Smith with a

copy of the police report indicating that the Hi-Point rifle found in his possession was

stolen. Nor had the State identified the owner of the firearm. Second, Charles Lloyd's

potential testimony regarding repayment of a debt with 2,000 firearms is preposterous, let

alone, irrelevant, given that law enforcement found only seven firearms in Smith's

possession, two of which belonged to others. Third, Smith argued that the prejudicial

impact of Lloyd's testimony far exceeded the probative value, since the testimony

characterized Smith as a "large scale gun dealer" trafficking in stolen firearms, when the.

State had not charged Smith with trafficking firearms. RP at 65. Fourth, Smith objected

to testimony of the low price that he allegedly paid for the Hi-Point rifle, because the

                                             5

No. 3 I 698-0-III
State v. Smith


testimony unfairly portrayed him as a drug dealer, which was also not an issue before the

JUry.

        After affording extensive argument, the trial court granted the State's motion in

limine because the State intended to use the testimony to establish elements of the crime

of possession of a stolen firearm, not for the purpose of propensity evidence. The trial

court declared on the record:

                THE COURT: Well, the incorrect use of 404(b) is where the state
        tries to get evidence in front of the jury around the corner, as it were, by
        insisting that it's relevant and that what they're really trying to do is get
        propensity evidence in front of the jury. And that's - that's an improper
        use of 404(b).
                The proper use of 404(b) is where the state is attempting to get
        relevant evidence in front of the jury that are admissible for some other
        purpose that is a relevant purpose which is not propensity evidence. And I
        believe that's the case here, and I'm granting the state's motion.
                The defendant was attempting to fill a large purchase order. That
        goes directly and has a nexus with the state's theory of the case that the
        defendant had in his possession several firearms and there was one stolen
        - one stolen firearm that he knew was stolen. That he acquired the gun
        (inaudible) in Count 8 from two individuals - that goes to the defendant's
        knowledge and the possible inference by the jury that in fact he knew it was
        stolen.
                That the defendant knew all the guns the defendant purchased in the
        past from at least one of these individuals had been stolen is admitted for
        the same reason.
                This is all through testimony of a witness, obviously, and the jury
        will make what they want of that. They're going to test Mr. Lloyd's
        veracity and credibility, and we'll have to let them do that.
                The conversation in the car also seems to me to be relevant, more
        probative than prejudicial, and a proper usage of 404(b) to the extent that it
        IS.

RP at 71-72.

                                              6

No. 3 I698-0-III
State v. Smith



          On April 17, 2013, the first day of trial, the State informed the trial court that it

had recently received the stolen firearm police report, but the report lacked any

identifying serial number for the Hi-Point rifle. The court ruled that because of the

State's failure to provide the report to Smith, the State could not reference the report

during trial. The trial court, however, authorized Lieutenant Reggie Bartkowski to testify

about the report based on his personal knowledge. The State agreed to limit Lieutenant

Bartkowski's testimony regarding whether the stolen firearm case was open or closed to

testifying that the case was closed. The State agreed Bartkowski would not testify as to

how he knew the case was closed.

          In opening statements, the State of Washington told the jury that Charles Lloyd

would testify that Steven Smith and he had a history of dealing drugs together, and that

Lloyd sold drugs provided by Smith. Smith objected on the ground that such testimony

would exceed the trial court's ruling on the State's motion in limine, and that Lloyd's

prospective testimony was prejudicial under ER 404(b). The State posited that testimony

from Lloyd regarding his drug dealing with Smith was relevant (1) to assess Lloyd and

Smith's relationship, (2) to assess Lloyd's credibility, and (3) because Smith admitted to

officers that he traded drugs for one of the guns. The trial court overruled Smith's

objection, but did not weigh the prejudicial impact versus its probative value on the

record.


                                                 7

No. 31698-0-111
State v. Smith


       During trial, Lieutenant Reggie Bartkowski testified that he prepared a report of

the stolen Hi-Point rifle on January 2, 2013. Bartkowski also testified that the owner did

not know the serial number of the stolen Hi-Point rifle, and that he could not retrieve the

serial number from the store where the owner purchased the rifle. Because Bartkowski

lacked a serial number, he entered only a description of the gun in the police database.

When the State inquired whether the Goldendale Police Department considered the case

open, Lieutenant Bartkowski replied negatively. When the State asked Bartkowski when

the Goldendale Police Department closed the case, he replied, "It was closed on February

7th. There was a search warrant conducted on February-." RP at 182. At that point,

Smith objected to Bartkowski's testimony about the circumstances of closing the case

and the trial court sustained the objection.

       The State of Washington called Deputy Robert Songer of the Klickitat County

Sheriffs Office to testify at trial. Deputy Songer identified the Hi-Point rifle found in

Steven Smith's Dodge Durango when officers served the search warrant on Smith's

residence on February 5, 2013. The exchange went as follows:

              [STATE]: Deputy, I'm showing you what's now been marked as
       Exhibit 33. Can you identify this, please?
              [SONGER]: Yes. This is a weapon that was in the photo in the
       trunk of the vehicle      in the hidden compartment (inaudible) of the
       vehicle.
              [STATE]: We're going to discuss this a little but [sic] further but at
       this point the state offers Exhibit 33.
              [LANZ]: No objection.
              THE COURT: 33' s admitted.

                                               8

No. 31698-0-III
State v. Smith


              [STATE]: -talk about this a little bit. What is it?
              [SONGER]: It's a 9-mm. pistol round, but it's a 9-mm. rifle.

RP at 235.

       Deputy Robert Songer testified that he is not a firearms expert, but he regularly

handles firearms as a law enforcement officer, has been around firearms his entire life,

attends gun shows, and frequents gun shops. Deputy Songer testified that the Hi-Point

rifle found in Smith's possession was the only Hi-Point 9mm rifle he ever saw in

Klickitat County outside of a gun show or gun shop.

       Following Robert Songer's testimony, the State called Charles Lloyd. Lloyd

testified that he had 17 felony convictions, including grand theft, possession of stolen

property, and controlled substance violations. Lloyd explained that, after his release from

prison in November 2012, he approached Steven Smith, and Smith provided Lloyd drugs

to sell. Lloyd testified that he currently faced criminal charges, but he made an

agreement with the State to testify in order to reduce his sentence and avoid federal

prosecution. Lloyd further testified he faced approximately 15 years of incarceration

even under the agreement. Lloyd averred that, ifhe failed to tell the truth, the State

would prosecute him to the fullest extent. Lloyd explained that he spent a significant

amount of time at Smith's residence while Lloyd used methamphetamine, and, during

this period, he always saw firearms at Smith's residence.

       Charles Lloyd further testified at trial that Steven Smith owed a third party


                                             9

No. 31698-0-III
State v. Smith


approximately $2,400, that Smith offered to supply guns to the third party in order to

repay the debt, and that Smith enlisted Lloyd to assist in procuring between 1,000 and

2,000 firearms to repay the debt. Lloyd stated he helped Smith obtain some of the

firearms. Lloyd testified that, during the morning of the day prior to Smith's arrest, the

two rode together in Smith's Dodge Durango. During this ride, Smith told Lloyd that

they were "riding dirty," which Lloyd understood to mean that Smith possessed stolen

firearms in the vehicle. After learning of the stolen firearms in the vehicle, Lloyd

complained to Smith about the risk of being caught by police while the two possessed

firearms. Although Smith reassured Lloyd that police would lack probable cause to

search the vehicle, Lloyd insisted that, if police contacted them, Smith should take

evasive actions to allow Lloyd to escape.

       When the State showed Charles Lloyd a picture of the Hi-Point rifle at trial, Lloyd

stated that he saw the rifle both in Smith's residence, and most recently, in Smith's

Dodge Durango. Lloyd testified that Smith placed the Hi-Point rifle in the back of the

Durango in a closed tool box. According to Lloyd, he was not present when Smith

obtained the Hi-Point rifle, but Lloyd testified that Smith told him that he had acquired

the Hi-Point rifle for "some dope and a little bit of money" from an individual that Lloyd

knew as a felon. RP at 257. Lloyd explained that everybody, from whom Smith and he

obtained firearms, stole the firearms. Lloyd further testified of his belief that the Hi-Point

rifle was stolen when he and Smith rode together in Smith's Durango less than one day

                                             10 

No. 3 I 698-0-III
State v. Smith


before authorities arrested Smith.

       In closing arguments, the State of Washington told the jury that it need not believe

beyond a reasonable doubt that the recovered Hi-Point rifle was the firearm reported

stolen on Christmas Eve 2012. Instead, although substantial circumstantial evidence

showed that the rifle confiscated from Steven Smith's Durango was the same firearm as

reported stolen, the State need only prove that the Hi-Point rifle in evidence was a stolen

firearm and that Smith knew the firearm was stolen. The State also encouraged the jury

to focus on the Hi-Point rifle and ignore whether the other six firearms found in Smith's

possession were stolen.

       On April 18, 2013, the jury convicted Steven Smith on all eight counts. Smith

appeals only the verdict on count VIII, possession of a stolen firearm.

                                 LA W AND ANALYSIS

       Steven Smith's primary argument on appeal is that insufficient evidence supports

his conviction for possession of a stolen firearm in violation ofRCW 9A.56.31 O. To this

end, Smith contends (l) the trial court erroneously admitted the Hi-Point rifle into

evidence, and (2) the court erred by admitting ER 404(b) evidence without weighing, on

the record, the evidence's probative value against its prejudicial effect. Since we must

exclude any improperly included evidence when judging the sufficiency of the evidence,

our discussion of the admission ofthe Hi-Point rifle and the ER 404(b) evidence precedes

an examination of the sufficiency ofevidence.

                                            11 

No. 3 I 698-0-III
State v. Smith


                               Admissibility 0/Hi-Point Rifle

       Without an objection, an evidentiary error is not preserved for appeal. State v.

Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000); State v. Powell, 126 Wn.2d 244,256,

893 P .2d 615 (1995). Where, as here, the trial court admitted evidence, a substantial right

of the party must be affected and there must be "a timely objection or motion to strike ...

stating the specific ground of objection, if the specific ground was not apparent from the

context." ER 103(a)(1 ).

       Steven Smith failed to object to the trial court's admission of the Hi-Point rifle.

Nevertheless, RAP 2.5(a)(3) permits this court to examine claims of error raised for the

first time on appeal if the claimed error concerns manifest error affecting a constitutional

right. Steven Smith does not argue a manifest error affecting a constitutional right.

Therefore, we decline to address the admissibility of the Hi-Point rifle.

                           Admissibility o/Evidence o/Other Acts

       Steven Smith next contends that the trial court erred, under ER 404(b), when

admitting Charles Lloyd's testimony regarding other conduct of Smith. Smith argues that

the trial court erroneously admitted testimony that (1) Smith repaid a debt by supplying

the creditor with a large number of firearms; (2) Smith previously purchased stolen

firearms; (3) Smith knowingly transported stolen firearms in his Dodge Durango; and (4)

Smith sold drugs.

       Washington's familiar ER 404(b) reads, in relevant part:

                                             12
No. 31698-0-III
State v. Smith


                Other Crimes, Wrongs, or Acts. Evidence of other crimes,
       wrongs, or acts is not admissible to prove the character of a person in order
       to show action in conformity therewith. It may, however, be admissible for
       other purposes, such as proof of motive, opportunity, intent, preparation,
       plan, knowledge, identity, or absence of mistake or accident.

       A trial court's interpretation ofER 404(b) is a question of law that this court

reviews de novo. State v. DeVincentis, 150 Wn.2d 11, 17,74 P.3d 119 (2003). ER

404(b) prohibits evidence of past misdeeds solely to prove a defendant's criminal

propensity. State v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008 (2006). Evidence of

prior bad acts is presumed inadmissible, and any doubts as to admissibility are resolved

in favor of exclusion. De Vincentis, 150 Wn.2d at 17; State v. Thang, 145 Wn.2d 630,

642,41 P.3d 1159 (2002). The question asked here is whether Steven Smith's prior

uncharged criminal conduct about which Charles Lloyd testified was relevant to prove

something other than propensity.

       A. Analysis on record

       To admit evidence of other crimes or wrongs under Washington law, the trial court

must (1) identify the purpose for which the evidence is sought to be introduced, (2)

determine whether the evidence is relevant to prove an element of the crime charged, and

(3) weigh the probative value of the evidence against its prejudicial effect. State v.

Lough, 125 Wn.2d 847,853, 889 P.2d 487 (1995); State v. Dennison, 115 Wn.2d 609,

628,801 P.2d 193 (1990); State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986);

State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). Additionally, the party offering

                                             13 

No. 31698-0-III
State v. Smith


the evidence of prior misconduct has the burden of proving by a preponderance of the

evidence that the misconduct actually occurred. State v. Benn, 120 Wn.2d 631,653,845

P.2d 289 (1993). The Washington Supreme Court explained the policy behind these

requirements when it stated:

               We cannot overemphasize the importance of making such a record.
       Here, as in cases arising under ER 609, the absence of a record precludes
       effective appellate review. See State v. Jones, 101 Wn.2d 113,677 P.2d
       131 (1984). Moreover, a judge who carefully records his reasons for
       admitting evidence of prior crimes is less likely to err, because the process
       of weighing the evidence and stating specific reasons for a decision insures
       a thoughtful consideration of the issue. These reasons, as well as others,
       led us to conclude in Jones that a trial judge errs when he does not
       enunciate the reasons for his decision.

State v. Jackson, 102 Wn.2d 689,694,689 P.2d 76 (1984).

       Steven Smith contends the trial court failed to conduct an ER 404(b) analysis on

the record for four topics covered in Charles Lloyd's trial testimony. Three topics

concerned firearms and the fourth topic involved controlled substances. We agree that

the trial court's analysis on the record was insufficient. As for the testimony of firearms,

the court identified the purpose for which the State sought to introduce the evidence and

determined whether the evidence is relevant to prove an element of the crime charged.

Nevertheless, the trial court failed to determine on the record whether Steven Smith's acts

occurred by a preponderance of the evidence and neglected to weigh the probative value

of the evidence against its prejudicial effect. We rule the error to be harmless,




                                             14
No. 3 I 698-0-III
State v. Smith


nonetheless, with respect to evidence about firearms. We rule the error to be harmful

with regard to testimony about drug dealing.

       Although a trial court's failure to perform the balancing on the record is erroneous,

it is not necessarily reversible error. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d

432,446, 191 P.3d 879 (2008); State v. Jackson, 102 Wn.2d 689,693-94,689 P.2d 76

(1984). When the trial court issues a ruling clearly agreeing with one of the party's

immediately after hearing both parties' arguments concerning the admissibility of the ER

404(b) evidence, our reviewing court may excuse the trial court's lack of explicit findings

on the record. State v. Pirtle, 127 Wn.2d 628,650,904 P.2d 245 (1995); State v. Stein,

140 Wn. App. 43,66, 165 P.3d 16 (2007). If the record shows that the trial court adopted

one of the parties' express arguments as to the purpose of the evidence and that party's

weighing of probative and prejudicial value, then the trial court's failure to conduct its

full analysis on the record is not reversible error. State v. Asaeli, 150 Wn. App. 543, 576

n.34, 208 P.3d 1136 (2009).

       The trial court ruled and adopted the State's position immediately after hearing

argument on the motion in limine. During the argument, the State reviewed the

authenticity of the evidence and the probative value versus the prejudice to Steven Smith

of the evidence regarding firearms. The evidence was important, if not critical, for the

State to establish Steven Smith's knowledge that the Hi-Point rifle was stolen. Smith did

not argue that the testimony of Charles Lloyd was false, only that it was irrelevant and

                                             15 

No. 31698-0-III
State v. Smith


prejudiciaL Therefore, we excuse the failure to address two of the factors on the record

when considering whether ER 404(b) excluded testimony regarding firearms.

       Some of Charles Lloyd's testimony implicated Steven Smith as a drug dealer.

Nevertheless, the State did not charge Smith with any drug crime. The trial court's ruling

allowing testimony concerning controlled substances did not comport with the

requirement that it give thoughtful consideration to the issue and create a record

sufficient for appellate review. The State, during its argument in support of the motion in

limine, gave scant attention to the relevance and need for testimony of drug sales. The

State did not weigh the prejudice of the testimony with its harm to Smith. Unlike the

other evidentiary rulings addressed in the motion in limine, the trial court did not provide

any insight into the basis for its decision, nor did its ruling follow extensive arguments by

both parties. The trial court's failure to weigh the evidence is error under the standards

for determining the admissibility of ER 404(b) evidence of other bad acts. Brundridge v.

Fluor Fed. Servs., Inc., 164 Wn.2d at 444-45. We later review whether the evidence is

otherwise harmless with regard to Steven Smith's conviction.

       B. Smith's Knowledge ofa Stolen Firearm

       Steven Smith contends Charles Lloyd's testimony lacked a legitimate purpose. In

response, the State argues that the evidence helped to establish the knowledge element of

the crime of possession ofa stolen firearm. We addressed this issue in part when

determining whether the trial court prepared an adequate record when ruling on,the

                                             16 

No. 31698-0-III
State v. Smith


motion in limine. We discuss the issue further now.

       ER 404(b) precludes evidence of a defendant's other bad acts to show the

defendant's propensity for criminal activity. However, when demonstrated, such

evidence may be admissible for other purposes such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v.

Powell, 126 Wn.2d at 258 (quoting ER 404(b)). Normally, evidence used to prove

knowledge is only admissible if knowledge is an element of the crime. State v.

Bacotgarcia, 59 Wn. App. 815, 821, 801 P.2d 993 (1990). This court reviews the trial

court's decision to admit evidence for abuse of discretion. De Vincentis, 150 Wn.2d at 17.

       State v. Greathouse, 113 Wn. App. 889,918-19,56 P.3d 569 (2002) provides an

example of the proper admission of ER 404(b) evidence to establish knowledge. In a

theft and trafficking prosecution, Michael Greathouse claimed that the trial court

improperly admitted his tax returns, which omitted any record of fuel sales. The State

argued that the tax returns showed that the defendant knew that the fuel he sold was

stolen. Greathouse maintained that the tax returns were irrelevant for proving the theft

and trafficking charges, the returns were inadmissible evidence of other crimes or bad

acts because they implied he dodged payment of taxes, and the returns were more

prejudicial than probative. This court affirmed the trial court's admission of the tax

returns because the returns helped to establish that the defendant knew he did not have

permission to obtain or sell the fuel. The court explained that, while the defendant's

                                             17 

No. 31698-0-III
State v. Smith


failure to pay taxes could indicate a dishonest character, the defendant had already

admitted to not paying taxes on the income, and the tax return did not raise any

"collateral prejudicial issues ... that some jurors might find disturbing." Greathouse,

113 Wn. App. at 919.

       In the present case, RCW 9A.56.310 required the State of Washington to prove

beyond a reasonable doubt that Steven Smith had knowledge that the Hi-Point rifle found

in his possession was stolen. Proving Smith's knowledge that the Hi-Point rifle was

stolen was not only relevant, but essential to the State's case.

       Steven Smith denies the relevancy of his car ride conversation with Charles Lloyd,

his speaking to Lloyd about the seller of the Hi-Point rifle having previously provided

only stolen firearms, and testimony that he acquired firearms to repay a large debt. His

contention is similar to the defendant in Greathouse arguing that the tax returns were

irrelevant to the charged conduct. Analogous to the fashion in which the tax returns

indicated defendanCs knowledge that the fuel was stolen, Lloyd's testimony established

Smith's knowledge that the Hi-Point rifle was stolen.

       The jury could have inferred from Charles Lloyd's testimony that Steven Smith

was a bad character. Nevertheless, because information of his knowledge that the firearm

was stolen was essential to proving the State's case, the trial court did not abuse its

discretion by admitting the testimony.

       C. Steven Smith as Drug Dealer

                                              18 

No. 31698-0-III
State v. Smith


       As previously ruled, the trial court committed error when failing to conduct the

required ER 404(b) analysis for Charles Lloyd's testimony about Steven Smith's selling

of controlled substances. Nevertheless, the erroneous admission of evidence in violation

ofER 404(b) is analyzed under the lesser standard for nonconstitutional error; that is,

under the harmless error analysis. State v. Gresham, 173 Wn.2d 405,433,269 P.3d 207

(2012); State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986). Evidentiary errors

under ER 404(b) are harmless unless the error, within reasonable probabilities, affected

the outcome of the trial.

       This court must examine whether the erroneous admission of Charles Lloyd's

testimony of Steven Smith's history of drug dealing unfairly prejudiced Smith. We rule

the error to be harmless for at least two reasons. First, the trial court correctly admitted

Smith's admission that he provided methamphetamine in exchange for the Hi-Point rifle,

since the evidence explained the transaction and helped establish Smith's knowledge that

the rifle was filched. Evidence of other drug sales would, therefore, unlikely alter the

jury's view of Smith's character. Second, as reviewed below, the State presented strong

admissible evidence that Steven Smith knew he possessed a stolen firearm.

       D. Limiting Instruction

       Normally the entry ofER 404(b) evidence requires that the trial court issue a

limiting instruction to the jury. State v. Russell, 171 Wn.2d 118, 122-23,249 P.3d 604

(2011). However, Smith never requested a limiting instruction, nor does he raise the

                                              19 

No. 31698-0-III
State v. Smith


issue on appeal. For this reason, the trial court had no duty to give the instruction.

Russell, 171 Wn.2d at 122-23.

                                Sufficiency ofthe Evidence

       Finally, Steven Smith contends that insufficient evidence supports his conviction

for possession of a stolen fireann. The standard of review for sufficiency of the evidence

is substantial evidence. State v. Castillo, 144 Wn. App. 584, 588, 183 P.3d 355 (2008);

State v. Green, 94 Wn.2d 216,221,616 P.2d 628 (1980); State v. Rangel-Reyes, 119 Wn.

App. 494, 499, 81 P.3d 157 (2003). This court considers evidence "substantial" when the

evidence is of a sufficient quantum to persuade a fair-minded person of the truth of the

declared premise. Ridgeview Props. v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231

(1982); State v. Valentine, 75 Wn. App. 611, 620, 879 P.2d 313 (1994). This court rarely

overturns a jury verdict, and will do so only when it is clear that no substantial evidence

exists on which the jury could have based its decision. State v. 0 'Connell, 83 Wn.2d

797,839,523 P.2d 872 (1974); Valentine, 75 Wn. App. at 620.

       This court reviews challenges to the sufficiency of the evidence in the light most

favorable to the State. State v. McPhee, 156 Wn. App. 44, 62, 230 P.3d 284 (2010). The

court's review examines whether any "rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." State v. Bencivenga, 137 Wn.2d 703,

706,974 P.2d 832 (1999); McPhee, 156 Wn. App. at 62.

              A defendant's claim of insufficiency of the evidence admits the truth

                                             20 

No. 3 1698-0-III
State v. Smith


       of the State's evidence and all inferences that can reasonably be drawn
       from it. We must draw all reasonable inferences in favor of the State and
       most strongly against the defendant. Both circumstantial evidence and
       direct evidence are equally reliable. Credibility determinations are for the
       trier of fact and are not subject to review.

State v. McPhee, 156 Wn. App. at 62 (citations omitted). This court defers to the fact

finder on issues of conflicting testimony, witness credibility, and persuasiveness of the

evidence. State v. Davis, 176 Wn. App. 849, 861, 315 P.3d 1105 (2013), review granted,

179 Wn.2d 1014,318 P.3d 280 (2014).

       The jury found Steven Smith guilty of possession of a stolen firearm in violation

ofRCW 9A.56.31 0, which provides:

              (l) A person is guilty of possessing a stolen firearm if he or she
       possesses, carries, delivers, sells, or is in control of a stolen firearm.
              (2) This section applies regardless of the stolen firearm's value.
              (3) Each stolen firearm possessed under this section is a separate
       offense.
              (4) The definition of "possessing stolen property" and the defense
       allowed against the prosecution for possessing stolen property under RCW
       9A.56.140 shall apply to the crime of possessing a stolen firearm.
              (5) As used in this section, "firearm" means any firearm as defined
       in RCW 9.41.010.
              (6) Possessing a stolen firearm is a class B felony.

In accordance with IIA Washington Practice: Washington Pattern Jury Instructions:

Criminal § 77.13 (3d ed. 2008), the trial court instructed the jury:

              To convict the defendant of the crime of possessing a stolen firearm,
       each of the following elements of the crime must be proved beyond a
       reasonable doubt:
              (l) That on or about February 5, 2013, the defendant possessed,
       carried, delivered, sold, or was in control of a stolen firearm, to wit: a Hi­

                                             21 

No. 31698-0-111
State v. Smith


       Point model 995 rifle, serial number B99280;
               (2) That the defendant acted with knowledge that the firearm had
       been stolen;
               (3) That the defendant withheld or appropriated the firearm to the
       use of someone other than the true owner or person entitled thereto; and
               (4) That any of these acts occurred in the State of Washington.
               If you find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a
       verdict of gUilty.
               On the other hand, if, after weighing all the evidence, you have a
       reasonable doubt as to anyone of these elements, then it will be your duty
       to return a verdict of not guilty.

CP at 169. The trial court further instructed the jury: '" Stolen' means obtained by theft,

robbery or extortion." CP at 170.

       Steven Smith challenges the sufficiency of the evidence that the Hi-Point rifle

police found in his possession was a stolen firearm. We disagree. Prior to Smith's arrest,

the Goldendale Police Department received a report of a stolen Hi-Point rifle. Smith

purchased the Hi-Point rifle in Goldendale, the same city from which the same make and

model of a Hi-Point rifle was stolen within the previous six weeks. Deputy Songer

testified that, in his 13 years as a Klickitat County law enforcement officer and gun

enthusiast, he had never before seen a Hi-Point rifle outside of a gun show or gun shop.

When officers served the search warrant on Smith's residence, the Hi-Point rifle was the

only firearm found outside Smith's residence. Officers discovered the Hi-Point rifle

concealed in a hidden compartment in back of Smith's Durango. This evidence suggests

that the Hi-Point rifle was distinct from the other six firearms recovered at Smith's


                                            22 

No. 31698-0-111
State v. Smith


residence, which were not stolen. Smith admitted to Detective Kallio that he purchased

the firearm for $50 and four grams of methamphetamine. The low purchase price and

nature of the transaction intimates that the firearm was stolen. Smith bought only stolen

firearms from the seller of the Hi-Point rifle. Smith told Charles Lloyd, when the Hi-

Point rifle was concealed in his vehicle, that his vehicle contained stolen firearms. Smith

and his associate Lloyd regularly possessed stolen firearms, and everyone from who they

acquired firearms from "pretty much stole them."

                                     CONCLUSION

       We affirm Steven Smith's conviction for knowing possession of a stolen firearm.

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

Washington Appel1ate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



WE CONCUR:



                                                    Brown, J.




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