                                                                                                                    FWI_ ED
                                                                                                             U003T 0E APPEALS
                                                                                                                 DI%liSir-itT ii
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                                           2015 JUL 28 AN F: 24
                                                 DIVISION II
                                                                                                           ST

 STATE OF WASHINGTON,                                        I                        No. 45782- 2- II y
                                      Respondent,


           V.



 RANDY A. HUESKE,                                            I.               UNPUBLISHED OPIN]




        MELNICx, J. —         Randy Hueske appeals his convictions for theft in the second degree and

           theft in the first degree for   depositing        forged             into his       credit union account.     He
identity                                                 a             check




argues that the trial court violated his right to present a defense when it excluded evidence that he

was not present when someone used his debit card to deposit a second forged check into his credit

union account four days after the initial deposit, an incident for which he was not charged.

Because the excluded evidence had only minimal relevance to Hueske' s defense and its probative

value was outweighed by the State' s compelling interest in precluding the evidence to avoid

confusing jurors       with    the   unrelated   transaction,       the trial court did not violate Hueske' s


constitutional right to present a defense by excluding the evidence. Accordingly, we affirm.

                                                       FACTS


           On April 9, 2013, Hueske endorsed and deposited a forged check for $2, 100 into his credit

union   account     using    an   Automated Teller Machine ( ATM).                 He immediately withdrew the

maximum amount of cash available              for   withdrawal      from his   account.         The ATM automatically

video recorded      the transaction.     The video showed that Hueske, accompanied by Sarah Silva,

                                                                 the forged           in       deposit                   it in
accessed    his   account   using his debit   card, placed                    check        a             envelope, put
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the   machine, and withdrew $ 380 cash.'             Silva picked up the cash from the machine, counted it,

and then handed a portion of it to Hueske.

         The remainder of the funds became available for withdrawal two days later. On April 12,


those funds were completely removed in two separate transactions, an in-person withdrawal at a

credit union     branch   and a    debit   card purchase.         The identity of the person conducting those two

transactions is not known, but the branch withdrawal would have required identification and the


debit card purchase would have required possession of Hueske' s debit card.

         The forged check was drawn on the joint -account of Carma Sonsteng' and Sherry Duke. It

was made payable          to "   Randy Hueske,"      and purportedly              signed     by " Sherry      Duke."   Report of


Proceedings ( RP) ( Dec. 4, 2013)          at   62, 76. The   memo         line   of   the   check read "[    f]ixing the Volvo."

RP ( Dec. 4, 2013) at 75. Duke did not know Hueske, and neither she nor Sonsteng owned a Volvo

or had any reason to owe Hueske money.

          On April 13, Silva attempted to deposit a second forged check from the Duke/ Sonsteng

account    into Hueske'     s    account   using Hueske'      s    debit   card.       ATM video footage showed Silva


making the April 13 transaction. Hueske was not visible in the video.

          The State charged Hueske with theft in the second degree and identity theft in the first

degree for the April 9 incident.            The State alleged that Hueske acted as either a principal or an


accomplice. The State did not charge Hueske with any crime related to the April 13 transaction.

          At trial, Hueske       claimed   he unknowingly             participated     in Silva' s   crimes.     Hueske testified


that he did not know that anything was amiss with the check when he deposited it in his account

on    April 9.   According to Hueske, Silva gave him the check as payment for working on her car


  Credit union policy limits the amount of cash immediately available for withdrawal from a
deposited      check   to $ 500, but Hueske' s      available         balance     was reduced        to $   381 because he had a
negative account balance at the time he deposited the check.


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and another car, and he did not look at the check before he endorsed it and deposited it in the ATM.


Hueske explained that Silva accompanied him to deposit the check because he was medicated from


surgery two and a half weeks earlier and he could not figure out how to use the ATM deposit

envelope.




         Hueske sought to introduce evidence regarding Silva' s April 13 ATM transaction.

Specifically, Hueske wanted to introduce evidence showing that Silva used Hueske' s debit card

during   the April 13 transaction.        The State objected on relevancy grounds, arguing that Silva' s

subsequent transaction and the fact that Silva had Hueske' s debit card on April 13 were irrelevant

because the    charged crimes were completed prior              to April 13.   The forged check was deposited on


April 9,    and   the   deposited funds   were withdrawn           by   April 12.   The State further argued that


references to the unrelated April 13 transaction would confuse jurors.

         The trial court agreed with the State, concluding that Silva' s April 13 transaction was not

relevant to    prove or   disprove any    matter   within   the    jury' s   purview.   The trial court excluded the


ATM video and all evidence of the April 13 incident.


         The jury found Hueske guilty as charged. Hueske appeals.

                                                    ANALYSIS


I.         STANDARD OF REVIEW


           We normally review a trial court' s evidentiary ruling for an abuse of discretion. State v.
Williams, 137 Wn.        App.   736, 743, 154 P. 3d 322 ( 2007).          But Hueske does not assign error to the

trial court' s application of the rules of evidence. Rather, Hueske argues that the trial court violated


his constitutional right to present a defense by excluding evidence of the April 13 transaction. We

review de novo claims that a defendant has been denied his constitutional right to present a defense.

State v. Jones, 168 Wn.2d 713, 719, 230 P. 3d 576 ( 2010).




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II.      TRIAL COURT RULING


         Hueske argues that the trial court violated his constitutional right to present a defense by

excluding      evidence of       the April 13 transaction.               He claims that the excluded evidence supported


his defense that he was an unknowing participant rather than an accomplice in the April 9

transaction.        We disagree.         At best, evidence of the April 13 transaction was only minimally

relevant to Hueske' s defense. Additionally, his need for the evidence did not outweigh the State' s

compelling interest to preclude the evidence to avoid juror confusion.

         A criminal defendant has a constitutional right to question witnesses and offer evidence in

his defense.        Jones, 168 Wn.2d               at   720.    However, this right is limited by rules governing the

admissibility       of evidence.        State v. Donald, 178 Wn. App. 250, 263- 64, 316 P. 3d 1081 ( 2013),

review   denied, 180 Wn.2d 1010 ( 2014). "                         Defendants have a right to present only relevant

evidence, with no constitutional right                    to   present   irrelevant   evidence."   Jones, 168 Wn.2d at 720


 emphasis      in   original).    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.     Relevance depends on " the circumstances of each


case and   the relationship        of   the   facts to the       ultimate   issue."   State v. Rice, 48 Wn. App. 7, 12, 737

P. 2d 726 ( 1987).


         Even relevant evidence may be deemed inadmissible if the State can show a compelling

interest in precluding it. State              v.   Darden, 145 Wn.2d 612, 621, 41 P. 3d 1189 ( 2002). The State' s


interest in precluding the              evidence          must "   be balanced against the defendant's need for the

information         sought,"     and    relevant        information       can   be   withheld   only " if the State' s interest


outweighs      the defendant' s        need."       Darden, 145 Wn.2d at 622.




                                                                     M
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         Hueske argues that the April 13 transaction was relevant to support his defense -that he was


an innocent victim rather than Silva' s accomplice in the April 9 transaction. Hueske testified that

he had accepted the forged check from Silva as payment for working on her car, and that he

deposited it on April 9 it without noticing that the check was not drawn on Silva' s account.

Hueske' s intent when he deposited the forged check into his account on April 9 is a fact that is of

consequence to the determination of this action. But Silva' s deposit of a second forged check into


Hueske' s account on April 13 does not make Hueske' s culpability for the April 9 transaction more

or less probable.


         Hueske argues that the excluded evidence was relevant to show that only Silva knew that

the checks     were   forged   and   that   she   took   advantage of   Hueske'   s   lack   of sophistication.   But this


evidence neither supports his theory nor makes " 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.    Arguably, the fact that Silva possessed Hueske' s debit card and could access

his credit union account four days later makes it more probable that he acted in concert with Silva

rather   than merely existing as        an    innocent     victim who    deposited     the    forged   check.   Given the


State' s theory that Hueske acted as Silva' s accomplice, evidence that Silva attempted to commit a

similar crime a few days later does not tend to exculpate Hueske. Accordingly, the evidence that

Hueske sought to admit was, at best, minimally relevant to his defense.

         We next must determine whether Hueske' s need for the information outweighed any

compelling interest the State may have had by excluding the evidence. See Darden, 145 Wn.2d at

622. The State' s interest in precluding evidence of the April 13 transaction was to avoid confusing

the jurors about the unrelated transaction. The State' s interest in seeking a fair trial by preventing

evidence of little probative value from distracting the jurors can be sufficient to justify exclusion



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of the evidence.    State   v.   Hudlow, 99 Wn.2d 1, 14- 16, 659 P. 2d 514 ( 1983). And the State' s interest


is sufficient here. We hold that the State' s interest in avoiding juror confusion outweighs Hueske' s

need for the minimally relevant evidence of the April 13 transaction. Therefore, the trial court did

not violate Hueske' s constitutional right to present a defense by excluding evidence of the April

13 transaction. We affirm.


        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.




                                                                      Melnick, J.   r)




We concur:




   VWeorswick,         P. J.




        Lee,   J.
