                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        February 6, 2019




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                              No. 50455-3-II

                               Respondent,

        v.

 JOHN ARTHUR PETERSON,                                       UNPUBLISHED OPINION

                               Appellant.

       LEE, J. — John A. Peterson appeals his conviction for conducting the business of selling

cigarettes without a license. He contends evidentiary error warrants reversal of his conviction.

We affirm.

                                             FACTS

       Robert Raveica, a Washington State Liquor and Cannabis Board enforcement officer, was

searching Craigslist advertisements for offers to sell cigarettes.      Raveica came across an

advertisement offering to sell four cartons of cigarettes. The cigarettes did not have a Washington

tax stamp; rather, they had stickers with European language on them. Raveica contacted the seller

without identifying himself as an enforcement officer. The two exchanged text messages, and they

arranged a time and place to purchase the cigarettes.

       Upon arriving at the agreed upon address, Raveica observed a man, later identified as

Peterson, walking up the street with a backpack. Raveica identified himself as the buyer to

Peterson.
No. 50455-3-II


           Peterson unzipped his backpack and produced the cigarettes. Raveica gave Peterson

money for the cigarettes. After the transaction was complete, Raveica identified himself as an

enforcement officer. Peterson “apologize[d]” and told Raveica that he “did not know it was

illegal.” Verbatim Report of Proceedings (VRP) (May 16, 2017) at 167.

           The State charged Peterson with conducting the business of selling cigarettes without a

license contrary to RCW 82.24.500. Before trial, Peterson objected to the State introducing a

printout of the text messages allegedly between Peterson and Raveica to arrange the sale. Peterson

argued that the messages were inadmissible hearsay and lacked foundation. The trial court denied

the motion to exclude the evidence, stating that the legal standard was whether the State could

“make a prima facie case that” the texts were “attributable to the defendant.” VRP (May 16, 2017)

at 93. The court then declared, “I think the evidence rises to that level, so I’m not going to exclude

it.” Id.

           Peterson also objected to Raveica testifying about the contents of the Craigslist

advertisement as inadmissible hearsay because the State did not offer the actual advertisement.

Peterson further argued that testimony about the advertisement would not be the best evidence.

The trial court allowed the testimony, stating “I don’t think it’s hearsay. I am going to let it in.”

VRP (May 16, 2017) at 87.

           Peterson testified in his defense. He testified that he listed the cigarettes for sale on

Craigslist. He further testified that Raveica contacted him, and they arranged to meet so Raveica

could purchase the cigarettes. Peterson admitted he did not have a license to sell cigarettes. As a

defense, he argued that he did not know it was illegal to sell the cigarettes.

           The jury found Peterson guilty as charged. Peterson appeals.



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No. 50455-3-II


                                          ARGUMENT

       Peterson argues his conviction should be reversed because the Craigslist advertisement is

inadmissible hearsay and violates the best evidence rule. He also argues the printout of the text

messages is inadmissible hearsay. We disagree.

A.     LEGAL PRINCIPLES

       We review a trial court’s evidentiary rulings for an abuse of discretion. State v. Grier, 168

Wn. App. 635, 644, 278 P.3d 225 (2012). The trial court abuses its discretion when it exercises

its discretion on untenable grounds or for untenable reasons. Id.

       Because the evidentiary errors alleged by Peterson are not of constitutional magnitude, the

nonconstitutional harmless error standard applies. State v. Gunderson, 181 Wn.2d 916, 926, 337

P.3d 1090 (2014). “This requires us to decide whether ‘within reasonable probabilities, had the

error not occurred, the outcome of the trial would have been materially affected.’ ” Id (internal

quotation marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).

       “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial

or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). Hearsay is

not admissible except as otherwise provided by the rules of evidence. ER 802.

       The best evidence rule requires that “[t]o prove the content of a writing, recording, or

photograph, the original writing, recording, or photograph is required.” ER 1002. The original is

not required, and other evidence is admissible, if “[t]he writing, recording, or photograph is not

closely related to a controlling issue.” ER 1004(d).




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No. 50455-3-II


B.     NO REVERSIBLE ERROR

       Here, there was no dispute over whether Peterson placed the Craigslist advertisement to

sell the cigarettes or whether he communicated with Raveica to sell the cigarettes. The evidence

went to explain how the officer and Peterson came into contact with each other. For this reason,

evidence regarding the Craigslist advertisement and text messages did not go to prove the truth of

the matter asserted and, thus, would not be hearsay.

       Similarly, testimony regarding the Craigslist advertisement would not violate the best

evidence rule because it is not closely related to a controlling issue. Peterson’s defense was that

he did not realize selling the cigarettes was illegal. Like the text messages, evidence of the

Craigslist advertisement went to how Raveica and Peterson came into contact with one another.

This was not a controlling issue.

       Based on the above, the trial court had tenable grounds to allow testimony regarding the

Craigslist advertisement and the printout of the text messages. Therefore, the trial court did not

abuse its discretion in admitting this evidence.

       Moreover, even assuming the trial court abused its discretion in its evidentiary rulings, any

error was harmless. Peterson testified that he listed the cigarettes for sale on Craigslist. He further

testified that Raveica contacted him, and they arranged a time and place to meet so Raveica could

purchase the cigarettes. Peterson admitted he did not have a license to sell cigarettes. The fact

that Peterson placed the advertisement on Craigslist, communicated with Raveica to purchase the

cigarettes, and ultimately sold the cigarettes to Raveica without a license was uncontested. Thus,

even if Raveica’s testimony regarding the Craigslist advertisement and the printout of the text




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No. 50455-3-II


messages was wrongly admitted, it did not materially affect the outcome of the trial. For this

reason any error would be harmless. Accordingly, Peterson fails to establish reversible error.

        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.



                                                      Lee, J.
 We concur:



 Johanson, J.




 Maxa, C.J.




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