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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION ONE

STATE OF WASHINGTON,                                    No. 75256-1-1

                          Respondent,

                 V.                                     UNPUBLISHED OPINION

THOMAS ALLEN CHRISTIAN,

                          Appellant.                    FILED: November 27, 2017

      SCHINDLER, J. — The jury convicted Thomas Allen Christian of two counts of

possession of stolen property in the second degree, four counts of identity theft in the

second degree, and possession of heroin. Christian seeks reversal, arguing the trial

court abused its discretion by not ruling on whether admission of the evidence that

Christian used methamphetamine was relevant and more probative than prejudicial.'

But because the error did not with reasonable probability affect the outcome of the trial,

we affirm the convictions.

                                               FACTS

      On May 17, 2015, Jacqueline Prescott noticed a woman in a sports jersey enter

the McDonald's bathroom. Prescott placed her purse on the counter while she placed a

tissue in the wastebasket. When Prescott turned around, her purse was gone. The


      1 Christian does not seek reversal of the jury conviction of possession of a heroin.
No. 75256-1-1/2

purse contained a Bank of America Visa and an Alaska Airlines Visa, $75 cash, medical

information, a social security medical card, and driver's license all in her name.

       The McDonald's manager called the police. The manager and Anacortes Police

Department Officer Jackie Richter reviewed the security camera video. The video

shows a woman in a sports jersey, later identified as Kristy Hassenmiller, follow

Prescott into the bathroom and then run out of the bathroom "carrying something that

she wasn't before."

       Prescott reported the two credit cards stolen. On June 27, Prescott received a

fraud alert. Bank records showed her credit cards were used to make four separate

purchases at Ross and one purchase and several declined transactions at Burlington

Coat Factory. Officer Richter obtained the security video from Ross and Burlington

Coat Factory. The video shows a young male, later identified as Thomas Allen

Christian, taking a credit card out of his wallet for each transaction. Christian has a

distinctive tattoo on his right forearm and is wearing black Adidas shoes with three white

stripes. The Ross security video shows Hassenmiller nearby.

       On June 29, Anacortes Police Officer Scott Ray arrested Christian for an

outstanding felony warrant. After Officer Ray told Christian he was under arrest,

Christian ran away. As he was running, Christian ran "out of both of his shoes"—black

adidas with three white stripes. Officers caught Christian approximately two blocks

later. Officer Ray read Christian his Miranda2 rights. In a search incident to arrest,

Officer Ray found two credit cards in the name of "Jacqueline M. Prescott." Christian

started crying. Christian told Officer Ray that he "couldn't go to jail" because he took "a



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


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No. 75256-1-1/3

bunch of meth" and needed to go to the hospital. Officer Ray arranged for Christian to

go to the hospital and collected the adidas shoes on the way back to his patrol car.

      Officer Ray later reviewed the video security footage from Ross and Burlington

Coat Factory. Officer Ray identified the man in the video as Christian because of the

"distinct tattoos on the back of his hands" and the shoes he was wearing.

       Officer Richter read Christian his Miranda rights and interviewed him about using

the stolen credit cards at Ross and Burlington Coat Factory. Christian said he was in a

relationship with Hassenmiller and found a purse in "some bushes." Christian said that

when he confronted Hassenmiller about the purse, she told him she stole "an old lady's

purse from McDonald's."

       Christian admitted he went to Ross and Burlington Coat Factory on June 27 with

Hassenmiller. After Officer Richter told him about the security video, Christian said

Hassenmiller gave him a credit card to pay for the purchases. Christian said when the

card was declined at another store, Hassenmiller told him to throw it away, but he

decided to keep it.

       On August 27, police officers arrested Christian at Hassenmiller's house.

Sergeant Chad Pruiett read Christian his Miranda rights. During a search incident to

arrest, Sergeant Pruiett found a metal folding spoon and knife in Christian's pocket with

burn marks and "a ground tar substance." Christian told the officers he needed to go to

the hospital because he had consumed a "large amount of meth." After the hospital

released him, the police took Christian to jail.

       The State charged Christian with two counts of possession of stolen property in

the second degree, four counts of identity theft in the second degree, and one count of
No. 75256-1-1/4

possession of heroin. Christian pleaded not guilty.

       Following a CrR 3.5 hearing on statements Christian made to Officer Ray, Officer

Richter, and Sergeant Pruiett, the court concluded the statements were admissible.

       Christian filed motions in limine to exclude testimony "from any witness regarding

alleged drug use by Mr. Christian" under ER 401 and ER 403. Christian argued the

evidence was not relevant and "presents a danger of unfair prejudice that outweighs

any possible probative value."

       In response, the prosecutor asserted the only evidence of drug use the State

planned to offer were "admissions made by the defendant himself and evidence

recovered from the defendant." The trial court ruled that if Christian "made statements

[as to his drug use] on his own those would be admissible."

       The defense theory at trial was that Christian did not know the credit cards were

stolen. The State called several witnesses to testify, including Jacqueline Prescott,

Officer Ray, Officer Richter, Sergeant Pruiett, and Washington State Patrol Crime

Laboratory(WSPCL)forensic scientist Karen Finney. The court admitted into evidence

more than 40 exhibits, including the June 27 Ross and Burlington Coat Factory security

camera video, still photographs taken from the video, and receipts for the purchases.

       The Ross security video shows Christian making four purchases within one hour

on June 27. Christian purchases one item at 1:01 p.m. for $47. Christian then selects

items from a shopping cart and goes to a different register. The second transaction

totals $440 and Christian signs for the amount. Christian then purchases Ray-Ban

sunglasses and a purse at the same register. Christian leaves at 1:39 p.m.

       The June 27 Burlington Coat Factory security video shows Christian wearing



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No. 75256-1-1/5

Ray-Ban sunglasses. At 2:23 p.m., Christian purchases two pillows. At 2:34 p.m.,

Christian takes a cart full of items to a different register to make a second purchase.

Christian slides the card through the reader three times. The card is declined each

time. Christian puts the card back in his wallet, takes the pillows, and leaves the store.

       Prescott testified she did not make any purchases at Ross or Burlington Coat

Factory on June 27 and she did not give anyone permission to use her credit cards.

       Officer Ray testified he found credit cards in the name of "Jacqueline M.

Prescott" in Christian's wallet. Christian told Officer Ray that he was "in legal

possession of[the cards] and ... the owner knew he had them." Officer Ray testified

Christian admitted that he consumed "a bunch of meth" and needed to go to the

hospital. The court overruled the relevance objection.

       Officer Richter testified that Christian said he knew Hassenmiller "had stolen an

old lady's purse from McDonald's." Officer Richter testified Christian told her that

Hassenmiller "gave me her card" and he "paid for the stuff' at Ross and Burlington Coat

Factory. Christian told Officer Richter that he had "past fraud history" and "kn[e]w that if

you get too high of a bill you will get flagged for ID." Christian denied he "ever told

Officer Ray that Ms. Prescott had given him permission to use the cards."

       Sergeant Pruiett testified he found a "metal folding knife/spoon combination" in

Christian's pocket. According to Sergeant Pruitt, the burn marks on the utensil indicated

"[h]eating up the heroin to make it more into a liquid base." Sergeant Pruiett testified

Christian admitted that he "ingested a large amount of meth" and said that he needed to

go to the hospital. The court overruled the defense's relevance objection to Sergeant

Pruiett's testimony about Christian's admissions about using methamphetamine.



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No. 75256-1-1/6

       WSPCL forensic scientist Finney testified the "residue" on the knife and spoon

tested positive for heroin.

       In closing argument, the defense attorney conceded the State proved beyond a

reasonable doubt that Christian was guilty of possession of heroin but argued the State

did not prove beyond a reasonable doubt that Christian was guilty of possession of

stolen property or identity theft.

       The jury found Christian guilty of two counts of possession of stolen property in

the second degree, four counts of identity theft in the second degree, and possession of

heroin.

                                        ANALYSIS

       Christian contends the trial court erred by admitting the statements he made

about using methamphetamine. Christian asserts the evidence was inadmissible under

ER 404(b). "A party may assign evidentiary error on appeal only on a specific ground

made at trial." State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125(2007). An

objection to admission of evidence on other grounds does not preserve the issue for

appeal. Kirkman, 159 Wn.2d at 926; State v. Fredrick, 45 Wn. App. 916, 922 n.3, 729

P.2d 56(1986)("While ER 403 and ER 404(b) are evidentiary rules grounded in the

concept of relevancy as set forth in ER 401, an objection based solely on relevance is

insufficient to preserve appellate review on ER 404(b) grounds."). Because the record

shows Christian did not object to admission of the statements under ER 404(b), we

consider only whether the trial court abused its discretion concerning relevance under

ER 401 and ER 403.

       The admissibility of evidence is within the discretion of the trial court. State v.



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No. 75256-1-1/7

Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). We review a trial court's ruling

on the admissibility of evidence for abuse of discretion. State v. Gould, 58 Wn. App.

175, 180, 791 P.2d 569 (1990). Abuse of discretion is shown only when a trial court's

decision is manifestly unreasonable or based upon untenable grounds or reasons.

Gould, 58 Wn.2d at 180; State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).

Evidence is relevant when 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." ER

401. Under ER 403, the trial court must determine whether probative evidence "is

substantially outweighed by the danger of unfair prejudice."

       In his motion in limine, Christian argued evidence of his drug use was

inadmissible under ER 401 and ER 403. At the hearing on the motions in limine,

Christian's attorney told the court the parties disagreed about whether the statements

Christian made were admissible. The court ruled, "[N]o other people will be allowed to

come in and give their opinion or their testimony as to Mr. Christian's drug use, but if he

made statements on his own those would be admissible" because "[t]hose are his

statements."

       While the statements of a party opponent are admissible under ER 801(d)(2), the

court may exclude the evidence as not relevant under ER 401 or more prejudicial than

probative under ER 403. See, e.g., City of Seattle v. Heatlev, 70 Wn. App. 573, 578-79,

854 P.2d 658 (1993); State v. Allen, 50 Wn. App. 412, 416-17, 749 P.2d 702(1988).

The determination that a statement is "voluntarily obtained and admissible under CrR

3.5... is not the same as a determination that the statement is otherwise admissible

under the Rules of Evidence." State v. Vinev, 52 Wn. App. 507, 510, 761 P.2d 75



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No. 75256-1-1/8

(1988).

       Because the court did not rule on whether the statements were relevant under

ER 401 or more probative than prejudicial under ER 403, we conclude the court abused

its discretion by admitting the statements Christian made that he used

methamphetamine.

      An evidentiary error results in reversal only if the error, within reasonable

probability, materially affected the outcome of the trial. State v. Jackson, 102 Wn.2d

689, 695,689 P.2d 76(1984). "The improper admission of evidence constitutes

harmless error if the evidence is of minor significance in reference to the overall,

overwhelming evidence as a whole." State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d

1120 (1997).

       Here, admission of Christian's statements that he used methamphetamine was of

minor significance, and overwhelming evidence supports the jury finding Christian guilty

of possession of stolen property in the second degree and identity theft in the second

degree.3

       Evidence of drug use is generally inadmissible as impermissibly prejudicial.

State v. Tigano, 63 Wn. App. 336, 344-45, 818 P.2d 1369 (1991). But because the

State presented evidence to prove the charge of possession of heroin beyond a

reasonable doubt, Christian's two statements about using methamphetamine were of

minor significance.

       There was overwhelming evidence Christian was guilty of possession of stolen

property and identity theft. Christian admitted he knew Hassenmiller stole a woman's



       3 Christian   does not seek reversal of the conviction for possession of heroin.
No. 75256-1-1/9

purse at McDonald's. Officer Ray found the two credit cards in the name of "Jacqueline

M. Prescott" in Christian's wallet. Officer Ray testified Christian said he was "in legal

possession of them and ... the owner knew he had them." Prescott testified she did

not give anyone permission to use the credit cards.

       The security video from Ross and Burlington Coat Factory show Christian taking

a credit card out of his wallet and making several purchases. The Ross security video

shows Christian making four separate purchases, first small and then large, at two

registers. The Burlington Coat Factory video shows Christian making one small

Purchase and then attempting to make a large purchase. Because the card was

declined three times, Christian could not purchase the other items.

       Officer Richter testified Christian admitted he had "past fraud history" and knew

that too high of a dollar amount would be flagged for additional identification. Officer

Richter testified the purchases Christian made showed he was trying to avoid detection.

       We conclude the evidentiary error did not materially alter the outcome of the trial

and affirm the jury convictions.




WE CONCUR:




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