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      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                     No. 73143-2-1
                          Respondent,
          v.                                         DIVISION ONE

PETER TYLER WHITMORE,                                UNPUBLISHED OPINION

                          Appellant.                 FILED: June 13, 2016


          Leach, J. — Peter Whitmore appeals his conviction and sentence for

possession of methamphetamine.            He challenges the trial court's admission of

testimony that the Anacortes police asked the Island County sheriff to contact

him at his grandmother's house and that Island County had a warrant for his

arrest.        He also challenges the trial court's imposition of several discretionary

legal financial obligations despite finding him indigent.        Because the testimony

Whitmore challenges gave the jury necessary context for his arrest and search,

the trial court did not err in admitting it.      But because the trial court did not

conduct an individualized inquiry into Whitmore's ability to pay the legal financial

obligations the trial court imposed, we remand for resentencing.

                                        Background

          In June 2014, the Anacortes Police Department called the Island County

Sheriff's Office and asked it to contact Whitmore at an address in Oak Harbor.


While on the way there, the sheriff's deputies discovered that Island County had

a warrant for Whitmore's arrest. They confirmed the warrant.
No. 73143-2-1/2




           When deputies knocked on the door, Whitmore's grandmother answered.

The deputies asked to speak with Whitmore. After Whitmore came to the door,1

the deputies informed him "[t]hat the Anacortes Police Department needed to talk

to him about something they were doing" and told him about the arrest warrant.

They then arrested him based on the warrant.2

           Before placing Whitmore in their car, one deputy searched him.3 The

deputy felt an object in Whitmore's pants pocket. Whitmore said the object was a

lighter.     The deputy testified that when he tried to push the object out of

Whitmore's pocket from the outside, a "baggie" that had been on top of it fell out

first. The baggie contained a small amount of methamphetamine.4

           Whitmore testified that he had been doing construction work at his

grandmother's house before the police arrived. He said that when the deputies

came to the door he thought they were investigating a robbery in the

neighborhood. He claimed the pants were not his but were from a trailer parked

at the house. He said that he and three others shared clothes from a pile in the

trailer to avoid getting their other clothes dirty when they worked.     He testified

that he did not think he had worn the pants before. He admitted that when he

           1 Deputy Davison testified that when Whitmore saw them at the door, he
said, "Oh, shit." Whitmore testified, instead, that he was not concerned at that
point.
           2 Both deputies testified that Whitmore initially resisted handcuffs until
after Deputy Davison instructed him to stop resisting. Whitmore testified he did
not resist at all.
        3 The search was incident to the arrest; its purpose was officer safety.
Whitmore did not challenge its legality.
       4 The officer said he avoided putting his hands in Whitmore's pockets to
avoid potential sharps. The object the officer had felt was indeed a lighter.
No. 73143-2-1/3




was arrested he had several of his own objects in the pockets, including

cigarettes and a lighter, and that he smoked about 10 cigarettes per day.       In

contrast to the deputy, Whitmore testified that the deputy put his hand in

Whitmore's pockets to remove their contents and did not find the baggie until he

opened up a ball of trash he had removed.

       The trial court rejected Whitmore's request to exclude evidence of the

police department's call and the warrant for his arrest.    It explained that "res

gestae allows the prosecution to give a story of what caused the contact. And in

this case there would be questions of why the police showed up at [Whitmore's]

door without any reason."

       A jury found Whitmore guilty of possession of a controlled substance. As

part of Whitmore's sentence, the trial court imposed certain legal financial

obligations.

                               Standard of Review


       We review the trial court's decision to admit or exclude evidence for abuse


of discretion.5 A trial court abuses its discretion when it makes a manifestly

unreasonable decision or bases its decision on untenable grounds or reasons.6

We review the trial court's interpretation of an evidentiary rule de novo as a

question of law.7



      5 State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014).
      6 Gunderson. 181 Wn.2d at 922 (quoting State v. Brown. 132 Wn.2d 529,
572, 940 P.2d 546 (1997)).
       7 Gunderson, 181 Wn.2d at 922.
No. 73143-2-1/4




                                     Analysis

       Evidence of Arrest Warrant and Anacortes Police Call


       First, Whitmore contends the trial court abused its discretion by admitting

the deputies' testimony that their office received a request from the Anacortes

Police Department to contact Whitmore at his grandmother's address and that

they found a warrant for Whitmore's arrest.

       Evidence is relevant when 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."8 "A fact bearing on the credibility or probative value of other

evidence is relevant."9   Relevant evidence is admissible unless a rule of law

prohibits its admission.10 ER 403 prohibits the trial court from admitting relevant

evidence "if its probative value is substantially outweighed by the danger of unfair

prejudice." And ER 404(b) prohibits the trial court from admitting "[e]vidence of

other crimes, wrongs, or acts ... to prove the character of a person in order to

show action in conformity therewith."

       Evidence is relevant to show the "res gestae" of a crime if it provides

needed context for the jury to understand the sequence of events surrounding

the crime.11 In short, this evidence "'is admissible [to] complete the story of the

crime.'"12 Washington courts have characterized res gestae as an exception to

       8ER401.
       9 State v. Warren, 134 Wn. App. 44, 63, 138 P.3d 1081 (2006).
       10ER402.
       11 State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).
       12 Lane, 125 Wn.2d at 831 (alteration in original) (internal quotation marks
omitted) (quoting State v. Tharp, 27 Wn. App. 198, 204, 616 P.2d 693 (1980)).
                                        -4-
No. 73143-2-1/5




ER 404(b)'s prohibition of prior misconduct evidence.13        Evidence of prior

misconduct is admissible as res gestae "'if it is so connected in time, place,

circumstances, or means employed that proof of such other misconduct is

necessary for a complete description of the crime charged, or constitutes proof of

the history of the crime charged.'"14 Division Two recently departed from this

formulation, reasoning that res gestae is better thought of as a type of relevance

under ER 401.15

      Here, Whitmore contends that the trial court should have excluded

testimony under ER 402, ER 403, and ER 404(b).

      The challenged evidence is relevant as res gestae and thus admissible

under ER 402.     The jury needed the deputies' testimony that the Anacortes

police asked their office to contact Whitmore and that he had an arrest warrant to

help it understand the sequence of events leading to Whitmore's arrest and the



Federal courts have urged caution to avoid admitting "extraneous and potentially
prejudicial information" under the guise of "background" when the events of the
case are easily understood without such facts. United States v. Steiner, 815
F.3d 128, 136-37 (3d Cir. 2016).
      13 See Lane. 125 Wn.2d at 831; Tharp. 27 Wn. App. at 204.
      14 State v. Schaffer. 63 Wn. App. 761, 769, 822 P.2d 292 (1991) (quoting
5 Karl B. Tegland, Washington Practice: Evidence § 115, at 398 (3d ed.
1989)), affd, 120 Wn.2d 616, 845 P.2d 281 (1993).
       15 State v. Grier. 168 Wn. App. 635, 647, 278 P.3d 225 (2012), cert-
denied. 135 S. Ct. 153 (2014). Analogizing to the ejusdem generis principle of
statutory construction, Division Two determined that res gestae is not properly
considered an exception to ER 404(b) because, unlike the listed exceptions
(except identity), it does not relate to the defendant's state of mind. Grier. 168
Wn. App. at 646. Federal courts have made a similar observation. United States
v. Green. 617 F.3d 233, 247 (3d Cir. 2010) ("There is little practical difference
between admitting inextricably intertwined evidence as 'background' pursuant to
Rules 401 and 402, and admitting it under Rule 404(b).").
No. 73143-2-1/6




discovery of drugs on him.16 As the State points out, without that information the

jury would not know why the deputies went to Whitmore's grandmother's house

or why they arrested him.      The challenged evidence thus "bear[s] on the

credibility or probative value of other evidence"—namely, other parts of the

deputies' testimony, which differed from Whitmore's.17 Since the evidence was

relevant and Whitmore does not challenge it on statutory or constitutional

grounds, it is admissible unless another evidentiary rule prohibits it.18 Whitmore

suggests ER 404(b) and ER 403.

      ER 404(b) did not preclude admission of the deputies' testimony, even if

the police call and warrant are evidence of Whitmore's unspecified prior

misconduct. This court recognizes an exception for res gestae evidence under

ER 404(b).19 This exception recognizes that ER 404(b) does not require the

State to present "a truncated or fragmentary version of the transaction."20 Nor

does ER 404(b) prohibit relevant "evidence of the continuing events leading to" a

crime.21 As discussed above, the call from the Anacortes police and the arrest

warrant were necessary to explain the events leading to the deputies' discovery

of methamphetamine on Whitmore.          Thus, for the same reasons that the




      16 See Warren. 134 Wn. App. at 63.
      17 See Warren. 134 Wn. App. at 63.
      18 See ER 402.
      19 See Tharp. 27 Wn. App. at 204.
      20 See Tharp. 27 Wn. App. at 205.
      21 Grier. 168 Wn. App. at 647.
No. 73143-2-1/7




challenged evidence is relevant as res gestae, that evidence qualifies for the res

gestae exception to ER 404(b).22

      Further, the trial court did not abuse its discretion in declining to exclude

the challenged testimony under ER 403.           The testimony had substantial

probative value. As discussed above, it helped complete the picture of events

leading to Whitmore's arrest and the deputies finding drugs on his person.23 It

likewise bore on the deputies' credibility.24 In contrast, that testimony's risk of

unfair prejudice was slight.   All adverse evidence is prejudicial; ER 403 is

concerned with unfair prejudice, which "is caused by evidence likely to arouse an

emotional response rather than a rational decision among the jurors."25 Deputy

Davison's statement that the "Anacortes Police Department needed to talk to

[Whitmore] about something they were doing" did not necessarily imply that

Whitmore was already a criminal, as the police could have wanted to talk to

Whitmore for other reasons. That Whitmore had an arrest warrant did, however,

imply he was a criminal and thus created some risk of prejudicing the jury against

him. But there is nothing incendiary about a defendant having an arrest warrant

for an unspecified crime. Nothing in either deputy's testimony appears "likely to

arouse an emotional response" from the jury.26


       22 See Grier. 168 Wn. App. at 647 (reasoning that while res gestae
evidence may qualify as ER 404(b) exception, it is better thought of as a type of
relevance).
       23 See Grier. 168 Wn. App. at 647.
       24 See Warren. 134 Wn. App. at 63.
       25 Carson v. Fine. 123 Wn.2d 206, 223, 867 P.2d 610 (1994).
       26 Carson. 123 Wn.2d at 223.
No. 73143-2-1/8




          Moreover, the alternative testimony that Whitmore proposes would neither

solve the problems he asserts nor fulfill the challenged testimony's function.

Whitmore suggests that the deputies could have said they acted on "information

received" rather than based on a warrant and a call from the Anacortes police.

Whitmore does not explain how that testimony would be less prejudicial than

telling the jury that Anacortes police asked the sheriff to contact Whitmore. More

importantly, Whitmore does not explain how that statement would give the jury

the proper context for the search: the search would still appear unreasonable if

the deputies had shown up at Whitmore's grandmother's house on "information

received" and promptly arrested and searched him.

          The trial court also offered jury instructions that adequately cured any

potential for prejudice. A trial court can use jury instructions to "direct the jury to

a proper consideration of the evidence."27 Here, the court instructed the jury not

to "speculate whether the evidence would have favored one party or the other"

regarding facts not before them. It also instructed the jury against prejudice.

          Finally, the trial court properly balanced the probative value and risk of

unfair prejudice from the testimony. To justify exclusion, the evidence's danger

of unfair prejudice must substantially outweigh its probative value.28 Here, the

challenged evidence was necessary to explain the sequence of events to the

jurors.    It was not unfairly prejudicial and would not cause a rational juror to




          27 Carson. 123 Wn.2d at 225.
          28 ER 403.
No. 73143-2-1/9




abandon the trial court's instructions about speculation, prejudice, and emotion.

The trial court did not abuse its discretion in admitting that evidence.

          Legal Financial Obligations

       Whitmore asks that even if this court affirms his conviction, it remand for

the trial court to make an individualized inquiry into his ability to pay legal

financial obligations (LFOs).    The trial court assessed Whitmore $217 in court

costs, $400 in court-appointed attorney fees, and $100 in crime lab costs, in

addition to $600 in mandatory fines. The court waived a $1,000 fine for Violation

of the Uniform Controlled Substances Act (VUCSA), chapter 69.50 RCW,

because it had found Whitmore indigent. The trial court thus imposed $717 in

discretionary LFOs.

       Under RCW 10.01.160(3), a trial court "shall not order a defendant to pay

costs unless the defendant is or will be able to pay them." When a trial court

imposes discretionary costs, "[t]he record must reflect that the trial court made an

individualized inquiry into the defendant's current and future ability to pay."29

Although this was the holding in State v. Blazina.30 which postdates Whitmore's

sentencing hearing, that Supreme Court decision "only confirms, and does not

alter, what has always been required of the sentencing court under RCW

10.01.160(3)."31 Where a defendant does not preserve a claim of error as to



      29 State v. Blazina. 182 Wn.2d 827, 838, 344 P.3d 680 (2015).
      30 182 Wn.2d 827, 837, 344 P.3d 680 (2015).
      31 In re Pers. Restraint of Flippo. 191 Wn. App. 405, 410, 362 P.3d 1011
(2015).
No. 73143-2-1/10




legal financial obligations, this court has discretion whether to reach that claim on

appeal.32

       Here, Whitmore did not object to the trial court's imposition of fees at the

sentencing hearing.        He thus did not preserve this issue for appeal.33

Nonetheless, consistent with numerous Supreme Court decisions since Blazina.

we use our discretion to reach Whitmore's challenge on appeal.34

       The State urges this court to find that the trial court did engage in the

individual consideration that RCW 10.01.160(3) mandates.              It bases this

assertion on Whitmore's testimony that he did construction work before his arrest

and was working on "'rebuilding one of [his] mother's rentals'" the day of the

arrest, Whitmore's counsel's mention at sentencing that the trial court found

Whitmore indigent, Whitmore declining to make a statement at sentencing, the

trial court waiving the VUCSA fine based on Whitmore's indigency, and

Whitmore's age (28) and length of sentence (60 days).

       These circumstances cannot substitute for an individualized inquiry on the

record.     We will not infer what the trial court was likely thinking from stray

testimony and remarks of counsel in the record. And "the court must do more

than sign a judgment and sentence with boilerplate language stating that it



          32 Blazina, 182 Wn.2d at 830; RAP 2.5(a).
          33 See State v. Blazina, 174 Wn. App. 906, 911, 301 P.3d 492 (2013),
remanded. 182 Wn.2d 827, 344 P.3d 680 (2015).
          34 RAP 2.5(a); see State v. Duncan. No. 90188-1, 2016 WL 1696698, at*3
(Wash. Apr. 28, 2016) (listing cases since Blazina that the court has remanded
for resentencing for proper consideration of defendant's ability to pay LFOs).
                                         -10-
No. 73143-2-1/11




engaged in the required inquiry."35 Exercising our discretion to reach Whitmore's

unpreserved assignment of error, we hold that the trial court did not conduct the

inquiry RCW 10.01.160(3) requires before it imposed discretionary LFOs on

Whitmore.   On remand, the trial court is to make an individualized inquiry into

Whitmore's current and future ability to pay discretionary LFOs.36

                                   Conclusion


      We affirm the trial court's admission of res gestae evidence that the

deputies who arrested Whitmore were acting on a request from another agency

and an outstanding arrest warrant. Because the trial court did not inquire into

Whitmore's present and future ability to pay LFOs, we remand for resentencing

on discretionary LFOs.




WE CONCUR:




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       35 Blazina. 182 Wn.2d at 838.
       36 The trial court must impose mandatory LFOs regardless of Whitmore's
ability to pay. State v. Lundv. 176 Wn. App. 96, 103, 308 P.3d 755 (2013).
                                       -11-
