                                                                          FILED
                                                                        APRIL 3, 2018
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                          )
                                              )         No. 34171-2-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
COREY JAVON WILLIAMS,                         )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, J. — Corey Javon Williams—aka Corey Javon Pugh, Sr., who asked

to be addressed as Corey Pugh, Sr. in the trial below1—appeals, making eight

assignments of error to his residential burglary and second degree theft convictions and

his sentence. We find no error or abuse of discretion by the trial court and affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       In 2013, Kennewick police detective Rich Runge investigated a series of

unauthorized “rentals” of homes by Corey Javon Williams. Mr. Williams had identified


       1
         We will refer to the defendant as Corey Javon Williams, notwithstanding that the
trial court honored his request to be referred to during trial as Corey Pugh.
        The State offered evidence at trial that the defendant uses both names. He was
charged and convicted as Corey Javon Williams, which is how he is identified on the
FBI’s Interstate Identification Index and on the Washington Judicial Information
System’s defendant case history.
No. 34171-2-III
State v. Williams


homes that were unoccupied for a period of time, rekeyed them, falsely represented to

prospective tenants that he owned them, and then rented them out. Mr. Williams

ultimately pleaded guilty to criminal trespass, four counts of second degree theft,

attempted second degree theft, and third degree theft.

       Following his release from prison, in September 2015, Mr. Williams, acting as a

principal for his limited liability company, C. Williams Group, LLC, filed liens against

two other unoccupied Kennewick residential properties and sought to rent them out. One

was located at 523 North Ely Street, with title held by Joseph and Gail Timmins. The

other was at 2402 West Bruneau Avenue, with title held by Catlino and Barbara Leija.

       Detective Runge determined that Mr. and Mrs. Leija had been dead since at least

2013. He determined that the North Ely Street residence was being occupied by Krista

Ironbear pursuant to a rental agreement offered her by the C. Williams Group, LLC in

September 2015. An $800 deposit and $1,000 for the first month’s rent had been paid to

Mr. Williams at that time by Ms. Ironbear’s mother, Laura Gillette.

       The State initially charged Mr. Williams with two counts of residential burglary

for his unauthorized activities at the two residences. The affidavit of probable cause filed

in support of the motion for an arrest warrant stated that in a conversation with Detective

Runge, Mr. Williams claimed to own the two properties by virtue of the liens he had filed

against them. It stated that Mr. Williams had rented the North Ely property to Ms.



                                             2
No. 34171-2-III
State v. Williams


Ironbear in September 2015 and attempted to rent the Leija property to two men who

paid him a deposit but then became suspicious and backed out.

      When arraigned, Mr. Williams told the court he wished to proceed pro se. A

Faretta2 inquiry followed:

              THE COURT: Do you wish to be represented by an attorney in
      these matters?
              MR. WILLIAMS: No, I do not.
              THE COURT: You wish to represent yourself?
              MR. WILLIAMS: Yes.
              ....
              THE COURT: Well, what we will do now is go through the
      colloquy regarding self-representation. . . .
              ....
              THE COURT: Sir, you understand if you represent yourself you
      will be held to the same standards as an attorney?
              MR. WILLIAMS: Absolutely.
              THE COURT: You understand you will be held to the same
      standard as to your knowledge of the law and court rules and the
      presentation of evidence?
              MR. WILLIAMS: Yes, sir.
              THE COURT: All right. Sir, what is the highest grade you
      completed in school?
              MR. WILLIAMS: I have three years of college.
              THE COURT: Are you familiar with the rules of evidence in the
      State of Washington.
              MR. WILLIAMS: Yes, I am.
              THE COURT: Can you tell me how you are familiar with them?
              MR. WILLIAMS: I studied criminal law and business law at
      Columbia Basin College.
              THE COURT: Are you familiar with the Revised Code of
      Washington? In particular the Revised Code of Washington as it relates to
      the this [sic] charge?


      2
          Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

                                              3
No. 34171-2-III
State v. Williams


             MR. WILLIAMS: Yes, I am.
             THE COURT: Can you tell me how you are familiar with that?
             MR. WILLIAMS: I believe that I’ve had prior 7.8 motions with this
      prior RCW with another Alaska statute which I fought in the Supreme
      Court.
             THE COURT: Supreme Court of which state, sir?
             MR. WILLIAMS: Washington.
             THE COURT: And when you say 7.8, you are referring to the
      Washington Criminal Rule 7.8?
             MR. WILLIAMS: Yes, sir.
             ....
             THE COURT: Given that information, you also understand that
      residential burglary is a class B felony as well?
             MR. WILLIAMS: I do.
             THE COURT: So again subject to the same potential maximum of
      10 years or a fine not to exceed $20,000. You are aware of that?
             MR. WILLIAMS: Yes, sir.
             THE COURT: Without agreeing that your criminal history is
      calculation is [sic] correct you heard [the prosecutor’s] recitation of what
      the guideline range is believed to be in the State of Washington?
             MR. WILLIAMS: Let the record reflect that I object.
             THE COURT: With that in mind, is it your desire to represent
      yourself?
             MR. WILLIAMS: Absolutely. As a secured party, I am.
             ....
             THE COURT: At this time I’m satisfied you are aware of the nature
      of the charge—and just to perfect the record again here, sir. You indicated
      you were aware of the statute with respect to theft of a motor vehicle. Are
      you also familiar with the Revised Code of Washington and the elements as
      they relate to residential burglary?
             MR. WILLIAMS: As a secured party, sir, I am aware and I do
      object to that.
             THE COURT: Sir, I will have to ask you what you mean by the
      term secured party?
             MR. WILLIAMS: I’m secured party in the State of Washington.
      My organization is secured party C. Williams LLC. I’ve been brought
      before this Court in that the Court is aware of my secured party status.
      Nothing further.


                                           4
No. 34171-2-III
State v. Williams


               THE COURT: All right. With that said, at this time I’m going to
       find that you are aware of the nature of the charge. You are aware you will
       be held to the same standard as would an attorney before the Court. And I
       will allow you to represent yourself, sir. You understand at any time
       should you wish to be represented by an attorney you may make such
       request to the Court and you will be entitled to representation even if the
       Court determines that you do not have the funds to retain an attorney the
       court would have the authority to appoint an attorney for you at no cost to
       you upon your request. You understand that?
               MR. WILLIAMS: Yes.

Report of Proceedings (RP) (Dec. 28, 2015) at 3-9.

       At a hearing on motions that took place over two weeks before trial, the court

cautioned Mr. Williams further, stating:

              Mr. Williams, you will recall when I—when we went through a
       colloquy and I allowed you to represent yourself, I indicated to you that you
       would be held to the same standard as an attorney. You would be held to
       the same standard of knowledge of the law and the same standard with
       respect to preparation, presentation, and the conduct of the case. I also told
       you that I could not help you. . . . I urge you to be represented by an
       attorney.
              You have the right to representation by an attorney, even if you
       cannot afford one. And I will appoint an attorney for you at any time
       during these cases, if you request one.

RP (Jan. 28, 2016) at 12-13.

       At the next hearing, which took place on February 11, 2016, the court cautioned

Mr. Williams again, after Mr. Williams argued that the State had no “complaining

witness.” It told Mr. Williams, “I would respectfully submit to you one of the dangers of

representing yourself, which is that you can take a legal term of art and turn it into what

may seem like a defense, when it may not in fact be a defense. I don’t believe that the

                                              5
No. 34171-2-III
State v. Williams


word ‘complaining witness’, at least from listening to you, has the meaning you believe it

does.” RP (Feb. 11, 2016) at 9.

       On the Thursday before the Tuesday, February 16, 2016 trial date, the State

amended the information, adding a charge of second degree theft for the $1,800 that Mr.

Williams had obtained from Ms. Gillette.

       In motions in limine filed by the State the Friday before trial, it sought a ruling

that it could offer evidence of Mr. Williams’s conviction of four similar crimes in Benton

County to which he pleaded guilty the year before. It contended that the prior

convictions were admissible under ER 404(b) as evidence of a common scheme or plan

and of his intent to deceive the victims.

       When motions in limine were argued the morning of trial, the prosecutor

characterized Mr. Williams’s conduct in the 2013 crimes as

       basically rent[ing] out property that was foreclosed on or had been
       abandoned. In those cases the evidence was that he either claimed some
       sort of ownership interest in those other properties through a doctrine of
       adverse possession or he would go to a foreclosed owner, the former owner
       who had filed bankruptcy or been foreclosed on and would get a quitclaim
       deed and claim he has some sort of possessory interest in the property. . . .
       [H]e pled guilty, was sentenced to [I] think 17 months.
               So he gets out of prison and in this case our allegation is that what he
       did again was rented out property that had been abandoned.

RP (Feb. 16, 2016) at 5. Given the opportunity to respond to the State’s interest in

offering the convictions, Mr. Williams’s only objection was that “my name is Corey



                                              6
No. 34171-2-III
State v. Williams


Javon Pugh,” and “I don’t feel that the State should be able to bring in any type of this

evidence because the State has not produced [sic] that I am Corey J. Williams.” Id. at 6.

Having heard that objection, the court said, “I’m going to allow those convictions in.” Id.

       After dealing with the motions in limine, the trial court asked Mr. Williams to

confirm that his defense was a general denial. Mr. Williams responded that he was also

asserting abandonment, saying, “I believe it applied to the residential burglary in

consensus with criminal trespassing.” Id. at 10.

       Among the State’s witnesses was Ms. Timmins, the legal owner of the North Ely

residence. Ms. Timmins testified that she lived in the house from 1983 until 2013, when

she moved out after her husband passed away and she could no longer afford the

mortgage payments. She had received collection notices and assumed the bank would

foreclose on the house. She testified that she never hired anyone to do repair work or

improvements at her house, contrary to the C. Williams Group’s lien claiming it was

owed $11,500 for property maintenance and repair. She testified that she did not owe

Mr. Williams any money and did not give anyone permission to be inside the home after

she left.

       Ms. Gillette was called by the State and testified to meeting Mr. Williams, his

representations about owning the property, and the payments she had made to him. Ms.

Ironbear was also called by the State and testified to entering into the rental agreement



                                             7
No. 34171-2-III
State v. Williams


with Mr. Williams. She testified that very shortly after she moved in, a detective came to

the house to speak with her about the fact that Mr. Williams did not own the house. She

admitted living at the house for approximately four months before moving out, without

paying rent “[b]ecause I had no idea how to get a hold of whoever leased it to me.” RP

(Feb. 16, 2016) at 75.

       Detective Runge testified to the fruits of his investigation and that it was October

5, 2015, when he spoke with Ms. Ironbear and told her that Mr. Williams did not own the

North Ely residence.

       At the close of evidence, the trial court and the parties discussed jury instructions.

Although Mr. Williams had not proposed an instruction on abandonment, he asked “if

[the court] would instruct under abandonment.” RP (Feb. 16, 2016) at 133. The court

refused.

       The jury found Mr. Williams guilty of residential burglary of the North Ely

residence and second degree theft, but acquitted him of the charge of residential burglary

of the West Bruneau residence. The trial court sentenced Mr. Williams to an exceptional

consecutive sentence of 106 months’ total confinement, with 84 months for the

residential burglary and 22 months for the second degree theft. It imposed mandatory

and some discretionary legal financial obligations after stating that Mr. Williams “is able,

capable of working.” RP (Jan. 28, 2016) at 25.

       Mr. Williams appeals.

                                              8
No. 34171-2-III
State v. Williams


                                        ANALYSIS

                              Sufficiency of evidence of theft

       Citing State v. Lee, 128 Wn.2d 151, 904 P.2d 1143 (1995), which he characterizes

as involving facts “nearly identical” to this case, Mr. Williams argues that where theft is

charged, loss to a victim is required for the essential element of an “unlawful

deprivation”—and “[w]hen the ‘victim’ receives what she bargains for, no theft is

committed.” Br. of Appellant at 14, 13 (quoting Lee, 128 Wn.2d at 162). Because Ms.

Gillette’s daughter received the benefit of a rental accommodation for four months in

exchange for payment of less than two months’ rent, Mr. Williams contends that the

evidence was insufficient to support the jury’s verdict finding him guilty of second

degree theft.

       A person is guilty of second degree theft if he commits theft of property or

services with a value exceeding $750 but less than $5,000. RCW 9A.56.040(1)(a). In the

trial below, the State presented no evidence that Ms. Gillette sustained a net loss after

taking into consideration the value of her daughter’s four months’ housing, let alone a net

loss exceeding $750, so this issue does not turn on the usual tests for reviewing the

sufficiency of evidence. It turns, instead, on whether Mr. Williams is right about the law.

       Under RCW 9A.56.020(1)(b), providing for what is known as theft by deception,

“‘Theft’ means . . . [b]y color or aid of deception to obtain control over the property or

services of another or the value thereof, with intent to deprive him or her of such


                                              9
No. 34171-2-III
State v. Williams


property or services.” (Emphasis added.) “In deception cases, the statute looks only to

the value of the property obtained, not the net result of the exchange.” State v. George,

161 Wn.2d 203, 209, 164 P.3d 506 (2007).

       In George, a father and son placed an advertisement for the sale of a pickup truck

that fraudulently misrepresented the mileage, condition, and history of a truck they

purchased for $1,800. Id. at 206. An undercover police officer handed the pair a

cashier’s check for the asking price of $5,500 and then arrested both. Id. The State

charged them with first degree theft by deception and both were found guilty and

convicted. Id. at 206-07. In affirming the Court of Appeals, which had affirmed the

conviction, the Supreme Court discussed the singular importance of the value of the

property or services the thief obtains from the victim:

       For purposes of a criminal charge, there is no difference between a thief
       who, through deception or fraud, hands over something in exchange for the
       victim’s property and a thief who surrenders nothing. The legislature could
       have defined value in the context of a sale as the difference between what
       was obtained and what was given up, but it has not.

Id. at 213 (emphasis added); see also State v. Farnworth, 199 Wn. App. 185, 208, 398

P.3d 1172 (2017) (“[T]he value of property, for purposes of the theft statute, is the total

value of the property relinquished by the victim regardless of whether the victim received

some offsetting value in exchange.”).

       The decision in Lee on which Mr. Williams relies is, nonetheless, analogous to the

facts of his case in many respects. In Lee, the defendant agreed to purchase a residence.

                                             10
No. 34171-2-III
State v. Williams


Before the closing date, he performed extensive repairs and improvements and then

signed an agreement with the Red Cross making the residence immediately available as

emergency housing for a 30-day period. Lee, 128 Wn.2d at 153-54. This was without

any agreement by the owner of the property that Mr. Lee could have early possession of

the residence to perform improvements or for any other purpose. Id. The owner of the

residence learned of the situation and objected, but after Mr. Lee failed to attend the

closing, the owner sold the residence to the emergency tenants. Id. at 154. Mr. Lee’s

conviction of second degree theft was reversed by the Washington Supreme Court, which

held that the State had failed to present sufficient evidence that any victim had actually

lost $2503 or more. Id. at 163-64.

       We might struggle with distinguishing Lee if the Supreme Court had not sharply

limited its application itself, in George. It described Lee as “an unusual case” in which

the relevant parties each received “exactly” what they were expecting or had contracted

for. George, 161 Wn.2d at 212-13. The Supreme Court clarified that in Lee, it “did not,

and had no occasion to, reach whether an offset was appropriate.” Id.

       Ms. Ironbear and Ms. Gillette did not receive “exactly” what Ms. Ironbear had

contracted for. Rather than Ms. Ironbear having a secure, lawful residence, she and her



       3
         At the time Lee was decided, RCW 9A.56.040 defined second degree theft as
theft of property or services which exceeds $250 in value. See S.B. 6167, 60th Leg., Reg.
Sess. (Wash. 2009).

                                             11
No. 34171-2-III
State v. Williams


mother learned within a matter of weeks that Ms. Ironbear’s “landlord” was a trespasser.

Ms. Ironbear moved out several months later. Since it is the $1,800 that Mr. Williams

obtained through deception that is the relevant “value” for purposes of the charge of

second degree theft, the State’s evidence was sufficient.

                     The trial court’s Faretta colloquy was adequate

       Mr. Williams next contends that the trial court’s Faretta colloquy was inadequate.

       A defendant who has been found competent to stand trial may ask to represent

himself or herself. See In re Pers. Restraint of Rhome, 172 Wn.2d 654, 667, 260 P.3d

874 (2011). Self-representation is a constitutional right, implicit in the Sixth Amendment

right to counsel and explicitly guaranteed by article I, section 22 of the Washington

Constitution. Faretta, 422 U.S. at 818-32; State v. Madsen, 168 Wn.2d 496, 503, 229

P.3d 714 (2010).

       A waiver of the defendant’s right to counsel “must be not only voluntary, but

knowing and intelligent,” however. Rhome, 172 Wn.2d at 667. A thorough colloquy on

the record about the dangers and disadvantages of self-representation is the preferred

method of ensuring an intelligent waiver of the right to counsel. City of Bellevue v.

Acrey, 103 Wn.2d 203, 211, 691 P.2d 957 (1984).

       “A waiver determination is an ad hoc determination that rests on a judge’s

evaluation of a defendant’s conduct, background, and experience.” Rhome, 172 Wn.2d at

667-68. We review such a decision for an abuse of discretion, reversing only when the

                                            12
No. 34171-2-III
State v. Williams


decision was manifestly unreasonable, reached by applying the wrong legal standard, or

based on facts not supported by the record. Id. at 668. “Because the trial court has the

opportunity to observe a defendant’s demeanor and nonverbal conduct, appellate courts

owe considerable deference to a trial court’s finding in this regard.” State v. Floyd, 178

Wn. App. 402, 410, 316 P.3d 1091 (2013).

       The trial court’s discussions of self-representation with Mr. Williams were

extensive, but he asserts two shortcomings. The first is that the trial court “failed to

inform [him] that technical rules exist which would bind him in the presentation of his

case and failed to assure that [he] understood the risks of self-representation.” Br. of

Appellant at 1. The second is that the trial court “failed to inform [him] of the maximum

penalties he faced upon conviction or of the nature and classification of theft in the

second degree.” Id.

       Our Supreme Court’s decision in Acrey is frequently cited for its statement that a

court’s colloquy with a defendant “at a minimum, should consist of informing the

defendant of the nature and classification of the charge, the maximum penalty upon

conviction and that technical rules exist which will bind defendant in the presentation of

his case.” 103 Wn.2d at 211. Yet the “minimum” it identifies is in the context of holding

that a colloquy is “the preferred means of assuring that defendants understand the risks of

self-representation” and conveying the court’s “strong[ ] recommend[ation]” of a

colloquy as the “most efficient means of limiting appeals.” Id. (emphasis added). Absent

                                             13
No. 34171-2-III
State v. Williams


a colloquy, Acrey holds that the court will still “look at any evidence on the record that

show defendant’s actual awareness of the risks.” Id.

       Before allowing Mr. Williams to represent himself below, the trial court asked if

Mr. Williams was familiar with the rules of evidence and the Revised Code of

Washington, and he answered that he was. He was told he would be held to the same

standards as an attorney, which Mr. Williams said he “absolutely” understood. RP (Dec.

28, 2015) at 5. Mr. Williams claimed to have taken college courses in criminal law and

business law.

       At the time Mr. Williams sought to represent himself, the trial court informed him

that residential burglary, the only crime with which he was charged at the time, is a class

B felony, subject to a maximum of 10 years’ incarceration and a fine not to exceed

$20,000. RP (Dec. 28, 2015) at 7. It is true that the trial court did not repeat the Faretta

colloquy almost seven weeks later, when the State moved to amend the information to

add the second degree theft charge, so Mr. Williams was not apprised of the maximum

penalty upon conviction for that charge. But a second colloquy was not required. See

State v. Modica, 136 Wn. App. 434, 445-46, 149 P.3d 446 (2006), aff’d, 164 Wn.2d 83,

186 P.3d 1062 (2008) (“The trial court was not required to sua sponte engage Modica in a

second full colloquy in which it informed him of the new charge’s maximum penalty.”).

Mr. Williams had already waived his right to counsel and had been representing himself

at the time the State amended the charges. “[A] valid waiver of the right to assistance of

                                             14
No. 34171-2-III
State v. Williams


counsel generally continues throughout the criminal proceedings, unless the

circumstances suggest that the waiver was limited.” Id. at 445 (citing Arnold v. United

States, 414 F.2d 1056, 1059 (9th Cir. 1969)).

       In addition, the record reveals that Mr. Williams pleaded guilty only a year earlier

to four counts of second degree theft committed in 2013, providing evidence that even

without a further colloquy, he had an appreciation for the risk presented by the single

second degree theft charge added by amendment.

       Considering the extent of the colloquy and giving the appropriate deference to the

trial court’s finding, we find no abuse of discretion by the trial court in allowing Mr.

Williams to represent himself.

                    The trial court did not abuse its discretion in refusing to
                                instruct the jury on abandonment

       Mr. Williams argues that the trial court’s refusal to instruct the jury on

abandonment prevented him from arguing his theory of defense to the residential

burglary charges. We review a trial court’s refusal to give a requested jury instruction de

novo when the refusal is based on a ruling of law. State v. White, 137 Wn. App. 227,

230, 152 P.3d 364 (2007).

       Under RCW 9A.52.090, it is a defense to criminal trespass in the first degree that

a building involved was abandoned. RCW 9A.52.090(1), .070. The legislature has not

identified abandonment as a defense to residential burglary. This court has repeatedly



                                                15
No. 34171-2-III
State v. Williams


held that the jury need not be instructed on abandonment as a defense to residential

burglary. State v. Olson, 182 Wn. App. 362, 377, 329 P.3d 121 (2014); State v. Jensen,

149 Wn. App. 393, 399-400, 203 P.3d 393 (2009); State v. Ponce, 166 Wn. App. 409,

269 P.3d 408 (2012).

       Mr. Williams nonetheless argues that this court’s opinion in State v. J.P., 130 Wn.

App. 887, 895, 125 P.3d 215 (2005) supports his right to have the jury instructed on

abandonment as a defense to residential burglary. For reasons explained in Ponce and

State v. Cordero, 170 Wn. App. 351, 284 P.3d 773 (2012), Mr. Williams reads too much

into J.P. In that case, the court recognized the holding of City of Bremerton v. Widell,

146 Wn.2d 561, 570, 51 P.3d 733 (2002) that statutory defenses to criminal trespass that

negate the element of unlawfully entering or remaining at premises are not affirmative

defenses. Instead, “once a defendant has offered some evidence that his or her entry was

permissible . . . the State bears the burden to prove beyond a reasonable doubt that the

defendant lacked license to enter.” Id.

       The trial court’s instructions were sufficient for Mr. Williams to argue any defense

that would negate the element of unlawfully entering or remaining in the Kennewick

residences. In the to-convict instruction for residential burglary regarding 523 N. Ely, the

trial court instructed the jury that to convict Mr. Williams the State must prove the

following elements beyond a reasonable doubt:



                                             16
No. 34171-2-III
State v. Williams


              (1) That on or about the time from September 15, 2015 to October 5,
       2015, the defendant entered or remained unlawfully in a dwelling;
              (2) That the entering or remaining was with intent to commit a crime
       against a person or property therein; and
              (3) That this act occurred in the State of Washington.

Clerk’s Papers (CP) at 59 (emphasis added). Jury instruction 10 further instructed the

jury that “A person enters or remains unlawfully in or upon premises when he or she is

not then licensed, invited, or otherwise privileged to so enter or remain.” Id. at 61.

There was no error.

               The trial court did not err in admitting Mr. Williams’s prior
                                        convictions

       Mr. Williams next argues the trial court erred when it admitted evidence of his

prior convictions without articulating the purpose of their admission and conducting the

balancing required by ER 404(b).

       ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to prove

the character of a person in order to show conformity therewith. See State v. Fisher, 165

Wn.2d 727, 744, 202 P.3d 937 (2009). Alongside this general prohibition, ER 404(b)

provides examples of proper purposes for which such evidence may be admissible,

including “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” ER 404(b).

       The analytical approach used to determine the admissibility of a person’s prior

crimes, wrongs, or acts under ER 404(b) is well settled. The trial court must “‘(1) find



                                             17
No. 34171-2-III
State v. Williams


by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose

for which the evidence is sought to be introduced, (3) determine whether the evidence is

relevant to prove an element of the crime charged, and (4) weigh the probative value

against the prejudicial effect.’” State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207

(2012) (quoting State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). The party

seeking to introduce the evidence has the burden of establishing the first three elements.

Gresham, 173 Wn.2d at 421.

       The trial court is supposed to conduct its analysis on the record. State v. Sublett,

156 Wn. App. 160, 195, 231 P.3d 231 (2010). “But where the trial court fails to conduct

an ER 404(b) analysis on the record, the error is harmless unless the failure to do the

balancing, within reasonable probability, materially affected the outcome of the trial.”

Id. at 196.

       Here, the first order of business on the morning trial began was argument of the

parties’ motions in limine. One of the first addressed by the State was its desire to offer

evidence of Mr. Williams’s four prior second degree theft convictions for rekeying and

renting other peoples’ unoccupied homes. It argued the prior convictions involved the

same scheme and plan as the current offense conduct, and “go[ ] to his knowledge he was

doing something illegal and his intent to deceive the victims.” RP (Feb. 16, 2016) at 5.

       Asked to respond, Mr. Williams did not disagree with the prosecutor’s description

of the offense conduct involved in the four crimes; he objected solely on the basis that

                                             18
No. 34171-2-III
State v. Williams


“Corey J. Williams” was convicted of the crimes, not Corey J. Pugh. Without conducting

the balancing analysis on the record, the trial court stated it would allow the evidence.

Mr. Williams made no further objection.

       The trial court erred by failing to conduct the balancing analysis on the record, but

the error was harmless. At issue were convictions, so there was no question the conduct

occurred. The State articulated permitted purposes for which the evidence would be

offered. There was substantial similarity between Mr. Williams’s prior criminal acts and

the acts for which he was being charged. There is no reasonable probability that the trial

court’s failure to weigh probative value against prejudice on the record materially

affected the outcome of the trial.

                 The trial court did not exceed its sentencing authority by
                                    ordering restitution

       Mr. Williams next contends the trial court exceeded its authority by ordering him

to pay $1,800 restitution to Ms. Gillette, arguing that her deposit and rent payment did

not go to waste. Mr. Williams’s only objection to the restitution at the time of sentencing

was that he was a “secured party” on the Ely Street property. RP (Jan. 28, 2016;) at 26.

       Under RCW 9.94A.753(5), restitution “shall be ordered whenever the offender is

convicted of an offense which results in injury to any person or damage to or loss of

property,” unless extraordinary circumstances make restitution inappropriate. RCW

9.94A.753(5) requires a sufficient causal connection between the crime with which an



                                             19
No. 34171-2-III
State v. Williams


offender is charged and convicted, and the injuries for which restitution is sought. We

review a trial court’s award of restitution for abuse of discretion. State v. Davison, 116

Wn.2d 917, 919, 809 P.2d 1374 (1991).

       When Ms. Gillette paid Mr. Williams $1,800 she did not receive, in exchange, the

secure and lawful housing for her daughter that she bargained for. Instead, she paid

$1,800 to someone the jury found to be a residential burglar. The trial court did not

abuse its discretion.

                We accede to the State’s request that we strike the $357.56 in
                discretionary legal financial obligations (LFOs) rather than
                         address Mr. Williams’s Blazina4 challenge

       Mr. Williams next argues that the trial court failed to make an individualized

inquiry into his present and future ability to pay before it imposed discretionary LFOs.

       The State agrees to strike the three fees that it concedes are discretionary: the

sheriff’s service fee, jury demand fee, and witness fee, which total $357.56. We accede

to its request and will remand with directions to strike these discretionary LFOs.

                    Mr. Williams’s argument that the criminal filing fee is
                               discretionary has been rejected

       Finally, Mr. Williams argues that the trial court erred when it imposed the criminal

filing fee, which he contends is discretionary, without conducting a Blazina inquiry. The

criminal filing fee is mandatory. State v. Lundy, 176 Wn. App. 96, 102, 308 P.3d 755


       4
           State v. Blazina, 182 Wn.2d 827, 344 P.3d 680 (2015).

                                              20
No. 34171-2-111
State v. Williams


(2013); State v. Stoddard, 192 Wn. App. 222, 225, 366 P.3d 474 (2016); State v.

Gonzales, 198 Wn. App. 151, 153, 392 P.3d 1158, review denied, 188 Wn.2d 1022, 398

P.3d 1140 (2017).

       We remand with directions to strike the three discretionary LFOs but otherwise

affirm the judgment and sentence. 5

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

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

2.06.040.


                                                    ?Jdb;w.                   .
                                                 Siddoway, J.          ~,         o=
WE CONCUR:




Pennell, A.CJ.




       5 Mr.Williams makes an assignment of error to cumulative error, which, having
found no error, we need not address.

                                            21
