    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 67913-9-1
                      Respondent,
                                                 DIVISION ONE                     C3     —   <~

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                                                 UNPUBLISHED OPINION                     o-

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ALFONSO V. SENIOR, JR.,

                      Appellant,
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ANTOINE SENIOR, and each of them,

                      Defendant.                 FILED: April 22, 2013


       Grosse, J. — Once a trial court has made a threshold decision that there are

sufficient facts from which a reasonable person could conclude that a defendant made

an adoptive admission, the question of whether or not the defendant did so becomes

one for the jury. Here, the trial court held a preliminary hearing and, after hearing the

evidence, correctly determined that there was sufficient evidence to submit the question

to the jury. We affirm the trial court.

       Several people were at a bar in Tacoma. After closing, the victim, Darrell Deon

Webster, and Alfonso Senior scuffled in the parking lot.          When a security guard

approached, Webster and Senior left with their own group of friends. Several groups

from the bar arrived at a Chevron gas station in Federal Way, including those who were

with Webster and Senior. Webster was shot and killed. An eyewitness identified Senior

as the shooter both from a photomontage and in court. Several other witnesses were

present at the scene, but did not specifically identify Senior as the shooter.
No. 67913-9-1/2


         The State charged Senior with second degree intentional murder and,

alternatively, with second degree felony murder and second degree unlawful

possession of a firearm. Additionally, the State requested a firearm enhancement for

sentencing purposes.

         Senior's defense was one of general denial and mistaken identification. The jury

found Senior guilty as charged.        Senior appeals, contending that the trial court

improperly admitted hearsay testimony as an adoptive admission. Senior also raises

juror bias and double jeopardy issues in his statement of additional grounds.

         At trial, the State sought to introduce evidence of a conversation between Senior

and his cousin, Robert Swaggerty, in which Swaggerty asked Senior "[w]hy did [he] do

that?"     In response to Swaggerty's question, Senior shook his head as though

responding that he did not know. The trial court held a hearing outside the presence of
the jury to determine the admissibility and scope of the witness's proposed testimony.
Prior to the hearing, the court advised both sides to review State v. Neslund.1 At the
hearing, Swaggerty's girlfriend, Franisa Johnson, testified that Swaggerty arrived at her
house a few hours after the shooting. Johnson stated that Swaggerty appeared

agitated. Swaggerty woke up early and together they watched the television news
about the shooting. Shortly thereafter they went to Swaggerty's apartment. Swaggerty

lived with Antoine, Senior's brother. Senior had stayed at their apartment. Before

Swaggerty could say anything, Senior told his son to go outside and play. Swaggerty
said, "Why did you do that?" Senior responded by silently shaking his head.




1 50 Wn. App. 531, 532, 749 P.2d 725 (1998).
                                              2
No. 67913-9-1/3


       At the conclusion of the hearing, the court determined that a reasonable person

could conclude that Senior's shaking his head could indicate that he did not know why

he shot the victim. The court based its decision on the agitated state of the declarant,

watching the news, and the proximity in time to the event. Under these circumstances it

would be reasonable for someone to find that the shaking of the head indicated Senior's

not knowing why he shot the victim. This was a factual determination for the jury and

defense could argue that the shaking of the head was nothing more than a response to

Senior's action in sending his son outside to play. This, in fact, was what the defense

argued.

       Senior argues that the statement was ambiguous and thus inadmissible hearsay.

Under ER 801(d)(2)(ii), a statement is not hearsay if it is offered against a party and is a

"statement of which the party has manifested an adoption or belief in its truth . . . ." As

noted by this court in State v. Neslund, a party-opponent may manifest adoption of a

statement by words, gestures, or complete silence.2 In Neslund, the wife was charged
with murdering her husband. A witness recounted a conversation he had overheard

between the wife and her brother describing to a third party how they had killed the

victim and disposed of the body.       The court admitted the brother's portion of the

conversation against the wife on the theory that she had manifested a belief in the truth

of his statements by not disagreeing with them.3 Silence constitutes an adoptive
admission if (1) the party-opponent heard the statement, (2) was able to respond, and

(3) the circumstances were such that it is reasonable to conclude the party-opponent




2 Neslund, 50 Wn. App. at 550-51.
3Neslund, 50 Wn. App. at 549.
No. 67913-9-1/4


would have responded "had there been no intention to acquiesce."4 Atrial court makes
a threshold decision that there are sufficient facts from which a jury could conclude that

the defendant made an adoptive admission, i.e., facts from which a jury could

reasonably conclude that the defendant "actually heard, understood, and acquiesced in

the statement."5 The jury ultimately decides the question as the trier of fact.6 The jury
was given a limiting instruction to ignore the evidence, if the jurors did not find that

Senior's silence was an adoptive admission. Under Neslund, the court was correct. We

decline to accept Senior's invitation to overrule Neslund.

       In his statement of additional grounds, Senior claims that a juror was biased

against him and that he was subject to double jeopardy because he was found guilty for

committing second degree murder and second degree felony murder for the single

murder of Webster.

       The right to a trial by an impartial jury is guaranteed by article I, section 22 of the

Washington Constitution and the Sixth Amendment to the United States Constitution.

Senior claims that Juror 43 should not have been seated because the juror's son was

shot and killed and that would bias the juror against him. If a biased juror is allowed to

deliberate, the defendant is denied his constitutional right to trial by an impartial jury,

requiring dismissal.7
       Senior argues that this case is analogous to State v Gonzales, where the court
reversed and remanded for a new trial because a juror who demonstrated unequivocal



4 Neslund, 50 Wn. App. at 551.
5 Neslund, 50 Wn. App. at 551 (quoting United States v. Moore, 522 F.2d 1068, 1076
(9th Cir. 1975)).
6 Neslund, 50 Wn. App. at 551-52
7 State v. Gonzales, 111 Wn. App. 276, 282, 45 P.3d 205 (2002).
No. 67913-9-1/5


bias toward the State was allowed to deliberate.8 In Gonzales, a juror stated she was
more likely to believe police testimony, repeated it several times, and responded that

she did not know if she could presume the defendant, Gonzales, was innocent.9 This

court reversed, noting that the juror unequivocally admitted a bias regarding the police,

believed the bias would affect her deliberations, did not know if she could presume that

Gonzales was innocent in the face of officer testimony, and was never rehabilitated.10

That is not the case here. Juror 43 never expressed a bias toward law enforcement

and, unlike the juror in Gonzales, Juror 43 unequivocally said that she was comfortable

with her ability to separate the loss of her son and would be able to weigh the evidence

fairly to determine whether the defendant had committed a crime. Defense counsel did

not ask the court to excuse Juror 43 for cause or because she showed actual bias.

       Senior next argues that he was subject to double jeopardy because the jury

found him guilty of both second degree murder and second degree felony murder.

Second degree murder under RCW 9A.32.050(1 )(a) and second degree felony murder

under RCW 9A.32.050(1 )(b) are alternative means of committing the single crime of

second degree murder ratherthan separate crimes.11 Where there are alternative ways
to commit a crime, it is permissible to charge both alternatives in the same count.

Senior was convicted of one crime only, second degree murder. Double jeopardy is not

implicated.12


8 111 Wn. App. 276, 281, 45 P.3d 205 (2002).
9Gonzales, 111 Wn. App. at 278-79.
10 Gonzales, 111 Wn. App. at 281.
11 See State v. Fortune. 128 Wn.2d 464, 473-74, 909 P.2d 930 (1996) (Premeditated
and felony murder have been defined as alternative means of committing murder in the
first degree since Washington was a territory.).
12 See State v. Ramos, 163Wn.2d654, 184P.3d 1256(2008).
No. 67913-9-1/6


     Affirmed.




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WE CONCUR:




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