 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 76023-8-1
                     Respondent,
                                                  DIVISION ONE
                v.

                                                  UNPUBLISHED OPINION
SHANE MARTIN JONES,

                     Appellant.                   FILED: January 17, 2017


       Trickey, A.C.J. — Shane Jones appeals his conviction for burglary and

theft. Jones argues that the trial court abused its discretion by admitting evidence

under ER 404(b) that he was suspected of shoplifting.             Specifically, Jones

contends that the State did not show by a preponderance of the evidence that he

committed the prior bad act or that the prejudicial effect of admitting the evidence

outweighed its probative value. We disagree. There was sufficient evidence tying

Jones to the shoplifting and the probative value of the evidence was high because

it helped identify Jones.   We affirm.

                                         FACTS

       Dylan Parrish worked as a mobile mechanic for Olympic Pharmacy, located

in Gig Harbor, Washington. When not working, Parrish left his van in the parking

lot next to Olympic Pharmacy's warehouse.           There are several surveillance

cameras focused on the parking lot and the building itself. The parking lot was

fenced in on all sides. At the end of 2014, Parrish left his van in the parking lot for

the holidays.

       When Parrish returned to work on January 5, 2015, he noticed that

someone had broken into the van.         The van had been ransacked, and several
No. 76023-8-1 / 2


valuable tools were missing. After learning of the theft, the general manager of

Olympic Pharmacy reviewed the security footage from the parking lot.            He

discovered the footage showed someone coming into the parking lot and removing

property. The person in the video was wearing a blue plaid jacket, over a gray

hooded sweatshirt, and light colored pants.

       The general manager reported the incident to the Gig Harbor Police

Department.   He gave a detective from Gig Harbor a copy of the surveillance

footage. A deputy in the Pierce County Sheriff's Department saw a bulletin about

the Olympic Pharmacy burglary with a still photograph from the surveillance video.

The deputy recognized the suspect as Jones, with whom he had previously

interacted.


       On January 2, 2015, three days before the burglary was discovered, Deputy

Dave Plummer of the Pierce County Sheriffs Department had contact with Jones.

Deputy Plummer knew Jones by sight and was able to positively identify him.

Another witness, Mavis MacFarlane, was present for most of Deputy Plummer's

contact with Jones. Jones was wearing khaki pants and a blue shirt.

       That same day, an Albertsons grocery store employee observed a customer

leave the store without paying for his items. She observed that he was wearing a

hood over his head, a blue jacket, and khaki colored cargo pants. She ran after

him and noted the license plate number of the vehicle he entered. A Gig Harbor

police officer responded to the report from Albertsons. The officer determined that

the vehicle belonged to Aaron Jones, Jones's brother. The officer also obtained

security footage from Albertsons.
No. 76023-8-1 / 3


       The State charged Jones with burglary and theft, stemming from the

Olympic Pharmacy incident.       The trial court admitted the Albertsons security

footage as evidence to prove identity under ER 404(b). The court instructed the

jury that it should consider the evidence related to the Albertsons incident "only for

the purpose of evaluating the identity of the alleged burglar at the Olympic

Pharmacy."1 Jones did not object to the wording of the limiting instruction.

       At trial, MacFarlane testified that Jones was wearing khaki or light colored

pants and a dark blue or black heavy shirt with a subtle plaid pattern when she

saw him on January 2, 2015; Deputy Plummer could not remember what Jones

had worn. Viewing a still photograph from the surveillance footage at Olympic

Pharmacy, MacFarlane testified that the suspect's clothing was consistent with the

clothes Jones was wearing on the day she met him.

       The jury found Jones guilty on both charges. Jones appeals.

                                      ANALYSIS

                                    Prior Bad Acts


       Jones argues that the trial court abused its discretion by admitting evidence

that he was involved in a shoplifting incident at Albertsons within days of the

burglary at Olympic Pharmacy. The court admitted the evidence under ER 404(b)

for the purpose of proving Jones's identity. Jones contends that the evidence was

more prejudicial than probative and that the State did not establish by a

preponderance of the evidence that he was the suspect at the Albertsons. We

disagree and hold that the trial court's consideration of both factors was within its



1 Report of Proceedings (RP) (Oct. 22, 2015) at 214.
                                           3
No. 76023-8-1 / 4


discretion.

       "Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.        It may,

however, be admissible for other purposes, such as proof of . . . identity." ER

404(b). Before admitting evidence of prior misconduct, the trial court must

       "(1) find 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.

Thanq, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)).

       We review evidentiary decisions for abuse of discretion.            State v.

DeVincentis. 150 Wn.2d 11, 17, 74 P.3d 119 (2003). A court abuses its discretion

if the decision is manifestly unreasonable or based on untenable grounds or

reasons. Thang, 145 Wn.2d at 642.

       Here, the trial court admitted evidence that Jones was suspected of

shoplifting from Albertsons. The evidence included security footage from inside

the store and testimony from both the Albertsons employee who observed him and

the police officer who responded to the employee's report. The court recognized

that the evidence was being offered to establish Jones's identity, and found by a

preponderance of the evidence that Jones was the suspect in the Albertsons

incident.     The court determined that the evidence was relevant because the

clothing worn by the individual in the Albertsons security footage was distinct and

matched the clothing worn by the suspect in the Olympic Pharmacy burglary.
No. 76023-8-1 / 5


Finally, the court determined that, with the proper limiting instruction, the prejudicial

effect of the evidence would not outweigh its probative value.

       Jones argues that the trial court abused its discretion because there was

not a preponderance of evidence that Jones was the person at Albertsons and

because the prejudicial impact of the evidence far outweighed its probative value.2

       First, the State's proof that Jones was the man at Albertsons was sufficient.

The State offered evidence that a man matching Jones's description, wearing

distinct clothes that matched what another witness saw Jones wearing that day,

walked out of Albertsons and entered the passenger side of a vehicle owned by

Jones's brother.3 This is enough to show that Jones was the person in the

Albertsons surveillance footage by a preponderance of the evidence.

       Second, the risk of prejudice to Jones did not substantially outweigh the

probative value. The probative value was high. The jurors could compare the

distinct clothing worn by the suspects at Olympic Pharmacy and Albertsons. The

similarity of the clothing made it more likely that one person committed both acts.

The State provided evidence that tied Jones to the incident at Albertsons.

Therefore, if the jurors believed that Jones was the man at Albertsons, they were

more likely to believe that Jones was the man at Olympic Pharmacy.

       The trial court acknowledged the potential that Jones would suffer unfair

prejudice from the jurors learning that an Albertsons employee suspected Jones

of another theft, but the court did not consider the evidence "particularly


2Jones does not challenge the propriety of admitting this type of evidence to prove identity.
3Jones suggested that the person in Albertsons could have been his brother Aaron, but,
unlike Jones, Aaron did not match the description because Aaron has light hair and the
Albertson's security footage showed a man with dark hair and dark facial hair.
No. 76023-8-1 / 6


inflammatory."4 The court noted that there would be no argument about whether

Jones actually shoplifted from Albertsons, and that jury would be instructed to

consider the evidence only for the purpose of establishing Jones's identity. The

trial court's assessment of the prejudicial effect of the evidence was not manifestly

unreasonable.

       Jones argues that the potential for prejudice was especially high because

both crimes involved theft. But Jones relies on cases that discuss the admissibility

of prior convictions for impeachment purposes under ER 609, not ER 404(b). See

State v. Caleqar, 133 Wn.2d 718, 722-23, 947 P.2d 235 (1997); State v. Pam. 98

Wn.2d 748, 761-62, 659 P.2d 454 (1983) (Utter, J., concurring), overruled by State

v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988); State v. Newton. 109 Wn.2d 69,

75-76, 743 P.2d 254 (1987). Evidence of criminal convictions is admissible under

ER 609 only for the "purpose of attacking the credibility of a witness in a criminal

or civil case." ER 609(a). In contrast, under ER 404(b), the party seeking to offer

the evidence of prior bad acts must establish the evidence's purpose and

relevance to the specific case.

       Jones also relies on State v. Perrett. 86 Wn. App. 312, 319-20, 936 P.2d

426 (1997). There, the court held it was error to admit a defendant's statement

that implied he had similar convictions because the statement, and the

circumstances surrounding the statement, were "not relevant" to the charged

crime. Perrett. 86 Wn. App. at 319-20.        Here, the evidence was relevant to

establish Jones's identity.



4 RP (Oct. 20, 2015) at 108-09.
No. 76023-8-1 / 7


       Finally, Jones argues that the State could have sanitized the evidence so

that the jury would not hear that the Albertsons employee suspected Jones of

shoplifting. The parties discussed this possibility below. The State expressed

concern that its lay witness might accidentally reveal details about the shoplifting

or that her story would not be reliable unless the jury understood why she had

observed Jones.     The court concluded that limiting the Albertsons employee's

testimony would unfairly prejudice the State. We agree.

       The trial court's decision to admit the evidence related to the incident at

Albertsons was not an abuse of discretion.

                    Statement of Additional Grounds for Review

       Jones raises two additional grounds for review in his pro se brief. Neither

merits reversal.

       First, Jones argues that the court should have suppressed any evidence

obtained from an illegal Terry stop, including witnesses' testimony identifying him,

as fruit of the poisonous tree.5      He also argues that he received ineffective

assistance of counsel because his trial counsel failed to move to suppress this

evidence.

       The State conceded that the stop was improper and agreed to suppress all

physical evidence seized during the stop. Butthe State still sought to have Deputy

Plummer testify about the clothing Jones was wearing at the time. The court

concluded that the State could have Deputy Plummer identify Jones and have

MacFarlane testify about what Jones was wearing at the time.



5 Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L Ed. 2d 889 (1968)

                                           7
No. 76023-8-1 / 8


       It is not apparent from the record what action the officer took that made the

Terry stop illegal. Without a clearer record, we cannot review whether all testimony

regarding the improper stop, including Jones's contact with the State's witnesses,

should have been suppressed or whether Jones received ineffective assistance of

counsel when his trial counsel did not move to suppress it. See RAP 10.10(c).

       Next, Jones argues that the "identification of Mr. Jones at trial by Mavis

MacFarlan[e] should have been excluded.               The State's presentation of

photograph[s] to MacFarlan[e] for identification of Mr. Jones was suggestive and

prejudicial."6 This brief objection is not sufficient to inform the court of the nature

of the alleged error. See RAP 10.10(c).

       First, MacFarlane did not use a photograph to identify Jones; she based her

identification on her personal observations of him on January 2, 2015. Second,

MacFarlane did use a photograph to testify that the suspect's clothes at the

Olympic Pharmacy were "consistent" with the clothes that Jones was wearing

when she met him, but did not identify Jones from that photograph. Finally, before

MacFarlane testified, the court limited the State to asking her how the clothing worn

by the person in the photograph compared to the clothing Jones wore in "neutral"

ways, in order to "avoid suggestibility."7

                                   Appellate Costs

       Jones asks that this court not impose appellate costs, even if the State

substantially prevails. The State argues that deciding whether to impose costs at

this point is premature. Relying on this court's opinion in State v. Sinclair, we


6 Appellant's Statement of Add'l Grounds for Review at 1.
7 RP (Oct. 26, 2015) at 263-64.
                                             8
No. 76023-8-1 / 9


exercise our discretion not to impose appellate costs. 192 Wn. App. 380, 389-90,

367 P.3d 612, review denied. 185 Wn.2d 1034, 377 P.3d 733 (2016).

          This court may impose appellate costs on a criminal defendant when the

State substantially prevails. RCW 10.73.160(1). But, the court has the discretion

to deny costs. Sinclair. 192 Wn. App. at 388; see also In re Pers. Restraint of

Flippo.       Wn.2d     , 385 P.3d 128 (2016).    It "is appropriate for this court to

consider the issue of appellate costs in a criminal case during the course of

appellate review when the issue is raised in an appellant's brief." Sinclair, 192 Wn.

App. at 389-90.

          Here, the trial court chose not to impose any discretionary legal financial

obligations because Jones had no savings, was unemployed, and had no property

or other resources. Similarly, in his motion to seek review at public expense, Jones

declared that he was unemployed and had no assets or savings.

          Because of Jones's indigency, we exercise our discretion not to impose

appellate costs.

          Affirmed.




WE CONCUR:



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