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             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             No. 67858-2-1


                          Respondent,            DIVISION ONE

                  v.

                                                 UNPUBLISHED OPINION
ROYANNE WESTBROOK,

                          Appellant.             FILED: March 11, 2013

          Schindler, J. — A jury convicted Royanne Westbrook of theft in the second

degree. Westbrook seeks reversal on the grounds that the court abused its discretion in

denying her motion for a mistrial. Because the trial court did not abuse its discretion, we

affirm.


                                          FACTS

          On September 26, 2010, Loretta LeFavor went to lunch with some friends at El

Camino restaurant in Fremont. LeFavor left her four-year-old Staffordshire Bull Terrier

Babu tied to a bike rack outside the restaurant. LeFavor could not see the dog from

where she was sitting but said that she went to check on the dog approximately every

ten minutes.


          Pamela Panela works at a clothing store next door to El Camino. Panela saw a

group of people gathered around the dog. Panela went outside to pet the dog. A
No. 67858-2-1/2


woman, later identified as Westbrook, walked up and told Panela that she was the dog's

owner, and asked Panela to watch the dog for 10 to 15 minutes. Panela went back

inside the store but continued to watch the dog. Panela saw Westbrook return, untie

the dog, and walk away. When LeFavor discovered the dog was gone, she

unsuccessfully searched for the dog.

      Later that afternoon, LeFavor's friend Lisa Podmajerski was shopping at the

Goodwill near Shoreline with her son and her boyfriend. Podmajerski and her son saw

Westbrook and the dog in the parking lot, and walked over to pet the dog. Podmajerski

said Westbrook was calling the dog "Bosco" but the dog was not responding.

Podmajerski saw that the dog collar identified the dog's name as "Babu." After seeing

the dog collar, Podmajerski recognized the dog as belonging to LeFavor.

      Westbrook told Podmajerski that she took the dog because she thought the dog

was abandoned. Westbrook told Podmajerski she did not want to give Podmajerski the

dog because she wanted a reward ifone was offered. While Podmajerski's boyfriend

was on the phone with the police, Westbrook handed the dog to Podmajerski and drove

away in a blue van. Podmajerski's boyfriend gave police the license plate number of

the blue van over the phone.

      Using the license plate number, the police located Westbrook's name and found

a photograph of her. The police showed Panela and Podmajerski a photo montage of

six women including Westbrook. Panela and Podmajerski each identified Westbrook as

the person they had seen with the dog.
No. 67858-2-1/3


        The State charged Westbrook with theft in the second degree. Before trial, the

prosecutor stated that unless Westbrook testified at trial, the State did not intend to

present any ER 404(b) evidence or prior convictions.

        Panela, Podmajerski, LeFavor, and Seattle Police Detective Eric Nelson testified

during the two-day jury trial.1 Westbrook did not testify. The defense claimed that
Westbrook took the dog to care for it because it had been abandoned.

        Detective Nelson testified that he conducted a follow-up investigation after

receiving a report from Detective Misho. The report described Westbrook, the blue van,

and the license plate number. Detective Nelson testified that he ran the license plate

number through the Department of Licensing (DOL) database and learned the vehicle

was registered to a man and a woman with the last name Hartzog. Detective Nelson

said that he ran the name Royanne Hartzog through the King County jail booking

system and located a person named Royanne Westbrook and a booking photo that

"resembled" the description of the woman in the report.

               A.     ... I ran that name [Royanne Hartzog] through the King
        County jail booking system and obtained a photograph, a booking photo
        and it resembled the description that was provided in the report and it also
        listed a true name of Westbrook.
              Q.     So just to clarify, the database indicated a last name of
        Hartzog?
              A.     The D.O.L, Department of Licensing for the license plate,
        was Hartzog.
                 Q.       And then you compared that to another database that you
        have available to you?
              A.     Through the King County jail booking system, I ran the name
        Hartzog and it came back as a true name of Westbrook.

During his testimony about preparing the photo montage, Detective Nelson also said

that the photos typically used in the montage are "booking or DOL photographs."

        1The jury also heard testimony from dog breeder Jenny Merritt whom the State called to
establish the price of a Staffordshire Bull Terrier.
No. 67858-2-1/4



       Outside the presence of the jury, the court expressed concern that Detective

Nelson's testimony referred "to the fact that [Westbrook] might have been in jail." The

prosecutor agreed to make no further reference to the photo montage. The defense

moved for a mistrial on the ground that "there ha[ve] been references to Ms. Hartzog or

Westbrook being in jail." The court reserved ruling on the motion for a mistrial until the

conclusion of the testimony.

       The court initially granted the defense motion for a mistrial. However, on

reconsideration, the court denied the motion and decided to give the jury a curative

instruction. The court ruled that "[u]pon further reflection,... the jury could very likely

associate the fact that Ms. Westbrook was in jail to something that happened as a result

of this case and this investigation." The written curative instruction the court gave the

jury states: "Any evidence that the defendant may have been arrested shall not be

considered by you for any purpose."

       The jury found Westbrook guilty of theft in the second degree. The court

sentenced Westbrook to a drug offender sentencing alternative.

                                          ANALYSIS


       Westbrook argues the trial court abused its discretion by denying her motion for a

mistrial. "The trial court has wide discretion to cure trial irregularities, . . . and the

standard of review is an abuse of discretion." State v. Post, 118 Wn.2d 596, 620, 826

P.2d 172 (1992). A reviewing court finds an abuse of discretion when no reasonable

judge could have reached the same conclusion. State v. Hopson, 113 Wn.2d 273, 284,

778 P.2d 1014 (1989). The trial court is in a better position to make this determination.

State v. Perez-Valdez, 172 Wn.2d 808, 819, 265 P.3d 853 (2011).
No. 67858-2-1/5


      To determine whether a trial court abused its discretion in denying the motion for

a mistrial, we examine (1) the seriousness of the irregularity, (2) whether the statement

was cumulative of other properly-admitted evidence, and (3) whether the irregularity

could be cured by an instruction. Perez-Valdez, 172 Wn.2d at 818.

      Westbrook argues the reference to the booking photo was serious and could not

have been cured by an instruction to the jury. The State argues that the court did not

abuse its discretion because the jury could have inferred that the booking photo was for

the crime charged. The State also argues that the error was not serious because

Detective Nelson did not refer to any crime that Westbrook had been convicted of or

booked for, and the instruction cured any prejudice.

       Because the record supports the trial court's determination that the jury likely

inferred that Westbrook was arrested for the crime charged, we agree that the error was

not so serious that it could not be cured with an instruction to the jury. The testimony

showed that the detective who did the initial investigation prepared a report containing

the license plate number, a description of the van, and a description of the suspect.

Before any reference to the booking photo, Detective Nelson testified that he was

conducting a follow-up investigation based on the initial report prepared by Detective

Misho. The court also instructed the jury not to consider the fact that the defendant had

been arrested for any purpose. A trial court has wide discretion to cure trial

irregularities. Post. 118 Wn.2d at 620. A jury is presumed to follow instructions of the

court. State v. Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008).

      The cases Westbrook relies on are distinguishable. In State v. Escalona, 49 Wn.

App. 251, 742 P.2d 190 (1987), the State charged the defendant with second degree
No. 67858-2-1/6


assault with a knife. Escalona, 49 Wn. App. at 252. At trial, the victim testified that on

the day of the assault, he was nervous because the defendant had a record and had

previously stabbed someone. Escalona. 49 Wn. App. at 252-53. Because of the

seriousness of the error, the logical relevance of the testimony, and the weakness of the

State's case, we held that no instruction could cure the prejudice. Escalona. 49 Wn.

App. at 255-57.

       State v. Taylor. 60 Wn.2d 32, 371 P.2d 617 (1962), is likewise distinguishable. In

Taylor, the court affirmed the grant of a new trial where a police officer deliberately and

repeatedly referred to the fact that the defendant had a parole officer. Taylor. 60 Wn.2d

at 33, 42. Defense counsel objected to the testimony during the trial and argued that

the reference to a parole officer indicated the defendant had been convicted of a crime.

Taylor. 60 Wn.2d at 33. The trial court granted a mistrial, concluding a curative

instruction would only further highlight the testimony. Taylor, 60 Wn.2d at 37. In

upholding the trial court's decision, the court repeatedly noted that the trial court was in

a better position to observe "the very atmosphere of the courtroom," Taylor. 60 Wn.2d at

40, and noted the trial court's "peculiar advantage in observing the effect on the jury of

prejudicial evidence." Taylor, 60 Wn.2d at 41.

       Here, unlike in Escalona. Detective Nelson's testimony did not refer to a prior

incident or previous conviction. See State v. Condon, 72 Wn. App. 638, 649-50, 865

P.2d 521 (1993) (testimony that defendant had been in jail less serious because it did

not indicate defendant had been convicted). And, unlike in Taylor, the trial court

concluded a curative instruction was appropriate.
No. 67858-2-1/7


       Because the trial court did not abuse its discretion by denying Westbrook's

motion for a mistrial, we affirm.




                                               SrQ^'rfflQ, t
WE CONCUR:
