          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                           NO. 68735-2-1


                    Respondent,                DIVISION ONE


                    v.
                                                                                     cr»



SAMSON ASNAKEW HAILEMARIAN,                    UNPUBLISHED OPINION


                    Appellant.                 FILED: September 23, 2013



      Lau, J. — Samson Hailemarian appeals his second degree robbery conviction.

He argues that the trial court erred by precluding him from impeaching an adverse

witness with evidence of an alleged threat the witness made. Because the evidence

was neither relevant nor admissible under ER 608(b), we affirm.

                                        FACTS

      Witnesses testified to the following facts: On November 4, 2011, 16-year-old

Romulus Saunders was walking to a relative's house to get a haircut. Saunders noticed

Samson Hailemarian about 20 feet away, riding a bike toward him. Saunders knew
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Hailemarian from the neighborhood, but the two were not friends. Hailemarian

approached Saunders, got off his bike, and asked Saunders what he was doing.

Saunders responded that he was minding his own business and tried to walk past

Hailemarian. Hailemarian said, "Stop right there." Report of Proceedings (RP)

(Mar. 28, 2012) at 27.

       Hailemarian then asked Saunders about the iPhone he was listening to and said,

"Let me see it." RP (Mar. 28, 2012) at 27-28. Saunders refused, and Hailemarian said,

"No, you're going to let me see your iPhone." RP (Mar. 28, 2012) at 28. Saunders and

Hailemarian exchanged a few more words and Saunders tried to walk away.

Hailemarian grabbed Saunders, forced him into a covered walkway near a building, and

pushed him up against a wall. Hailemarian told Saunders, "I'm going to blast you,"

which Saunders understood as street slang for "I'm going to shoot you." RP (Mar. 28,

2012) at 30-31. Hailemarian took Saunders's hat and iPhone. Saunders chose not to

fight to retain his property because he believed Hailemarian had a weapon and he

feared for his safety.

       Unknown to Saunders or Hailemarian, Seattle Police Officer Al Chapackdee was

teaching a community outreach class next door and heard the disturbance. Officer

Chapackdee was not in uniform, so he called his precinct and asked for assistance.

Seattle Police Officer Jarrod Stone responded to Officer Chapackdee's call. The

officers approached Hailemarian and Saunders. Both officers saw Hailemarian pushing

Saunders up against a wall and yelling at him. According to Officer Stone, Saunders

was on his toes and his eyes were wide open as if he was in shock. Officer Stone




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heard Hailemarian yell aggressively at Saunders, "Bitch, nigga, I'll fuck you up." RP

(Mar. 28, 2012) at 11.

       Officer Stone yelled at Hailemarian in an attempt to distract him. Hailemarian

turned and looked at Officer Stone with a "deer-in-the-headlights" look. RP (March 28,

2012) at 11. Officers Stone and Chapackdee separated Hailemarian and Saunders.

       Hailemarian told Officer Stone that Saunders had disrespected him and that

Hailemarian was standing up for himself. Meanwhile, Officer Chapackdee spoke with

Saunders about the incident. Officer Stone also spoke with Saunders and described

Saunders as scared and shaking.

       Saunders told the officers that Hailemarian still had his iPhone. At that time,

Hailemarian pulled the phone out of his pocket, said "here it is," and handed it to Officer

Stone. RP (March 28, 2012) at 14. After Officer Stone confirmed that the phone

belonged to Saunders, he arrested Hailemarian. Officers Chapackdee and Stone

noticed another young man, Shane Robinson, nearby when they arrived, but he left the

scene early in the investigation after refusing to give a statement.

       The State charged Hailemarian with second degree robbery. Pretrial, defense

counsel endorsed Robinson as a witness. Before the defense case at trial, the

prosecutor interviewed Robinson. Robinson indicated that a couple of weeks after the

robbery, Saunders told him that he was going to have his brother kill Hailemarian. The

State moved to preclude this testimony.

       Defense counsel argued that regardless of relevance, since Saunders denied

ever threatening a witness in this case,1 Hailemarian was entitled to impeach Saunders


       1Saunders's cross-examination testimony on this issue was as follows:
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with Robinson's testimony about Saunders's threat. The State responded that the

evidence lacked relevance and constituted inadmissible hearsay. The trial court agreed

and precluded the threat evidence.

       Hailemarian testified at trial that he was waiting for a friend and walking toward

the Union Gospel Community Center when he and Saunders bumped into each other.

Hailemarian felt disrespected and demanded an apology. When neither party

apologized, the interaction escalated into profanities and a physical altercation.

Hailemarian testified that Saunders pulled out his phone and said, "I have friends

coming to take care of this . . . ." RP (Mar. 29, 2012) at 55. Feeling threatened,

Hailemarian tried to grab Saunders's phone to prevent him from calling his friends. The

two wrestled over the phone. Hailemarian stated that each of them had the upper hand

at various times but agreed that Saunders was up against the wall when the police

arrived. Hailemarian admitted calling Saunders a "bitch" but denied threatening him.

RP (Mar. 29, 2012) at 58-59. According to Hailemarian, when the police asked him

about Saunders's phone, he showed them where it was and an officer picked it up off

the ground.

       Robinson testified that he saw about 20 seconds of pushing and shoving and

described it as a roughly equal fight. He could not hear what Saunders and Hailemarian



       "[Defense counsel]: And so it's your testimony you never tried to use a phone
and call your friends?
       "[Saunders]: Huh-uh.
       "Q: You didn't threaten to call your friend so that they would come and take care
of [Hailemarian]?
      "A: No.
      "Q: Okay. Now, Mr. Saunders, did you threaten any witnesses in this case?
      "A: No."
RP (Mar. 28, 2012) at 44. The State did not object to this line of questioning.
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said, did not know who was first to physically contact the other, and did not know how

Hailemarian ended up with Saunders's iPhone. Robinson testified that the fight had

cooled down by the time the officers arrived. According to Robinson, the officers "didn't

really ask [him] anything" and never tried to get a statement from him. RP (Mar. 29,

2012) at 44-45. He wanted nothing to do with the situation and left as soon as the

officers permitted him to leave.

       The jury convicted Hailemarian of second degree robbery. The court sentenced

him within the standard range. Hailemarian appeals.

                                        ANALYSIS


       Hailemarian contends that the trial court erred in precluding him from impeaching

Saunders with testimony regarding Saunders's alleged threat to have his brother kill

Hailemarian. The State responds that the trial court properly exercised its discretion to

preclude this impeachment evidence under ER 608(b).

       The rights to present a defense and to confront and cross-examine adverse

witnesses are guaranteed by both the federal and state constitutions. U.S. Const.

amend VI; Wash. Const, art. I, § 22; Wash, v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920,

18 L Ed. 2d 1019 (1967); Davis v. Alaska. 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed.

2d 347 (1974); State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). However, a

criminal defendant has no constitutional right to present irrelevant or otherwise

inadmissible evidence in his or her defense. Hudlow, 99 Wn.2d at 15; State v. Clark, 78

Wn. App. 471, 477, 898 P.2d 854 (1995). And the right to cross-examine witnesses is

not absolute. State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). The

confrontation right is subject to the following limitations: (1) the evidence sought must be
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relevant2 and (2) the defendant's right to introduce relevant evidence must be balanced
against the State's interest in precluding evidence so prejudicial as to disrupt the

fairness of the trial. Hudlow, 99 Wn.2d at 15.

            Under ER 607, "[t]he credibility of a witness may be attacked by any party,

including the party calling the witness." Under ER 608(b), a party may introduce

"[s]pecific instances of the conduct of a witness," other than conviction of a crime, and

only "for the purpose of attacking or supporting the witness' credibility . . . ." The

conduct may not be proved by extrinsic evidence. ER 608(b). The proponent may,

however, cross-examine the witness about the conduct if the inquiry is probative of the

witness's character for truthfulness or untruthfulness and the court exercises its

discretion to allow the questioning. ER 608(b); see also State v. Gregory, 158 Wn.2d

759, 798, 147 P.3d 1201 (2006) ("In exercising its discretion, the trial court may

consider whether the instance of the witness's misconduct is relevant to the witness's


veracity on the stand and whether it is germane or relevant to the issues presented at

trial.").

            ER 608(b) allows inquiry into specific instances only when those instances

demonstrate a general disposition for truthfulness or untruthfulness. It is well

established in Washington that "not every instance of a witness's (even a key witness's)

misconduct is probative of a witness's truthfulness or untruthfulness under ER 608(b)."

State v. O'Connor, 155 Wn.2d 335, 350, 119 P.3d 806 (2005). The rule generally does

not allow inquiry about acts of violence, drug use, unusual personal habits, or the like.


            2"Relevant evidence" means evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence. ER 401.
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See State v. Cochran. 102 Wn. App. 480, 486-87, 8 P.3d 313 (2000) (no inquiry allowed

into witness's alleged abuse of a young child); State v. Stockton, 91 Wn. App. 35, 39-

42, 955 P.2d 805 (1998) (no inquiry allowed into the fact that the witness had

possessed and used drugs).

       Evidentiary determinations lie largely within the trial court's discretion and will not

be reversed on appeal absent an abuse of discretion. State v. Embrv, 171 Wn. App.

714, 737, 287 P.3d 648 (2012). "A trial court abuses its discretion when its decision is

manifestly unreasonable or exercised on untenable grounds or for untenable reasons."

Embrv, 171 Wn. App. at 737.

      As discussed above, Hailemarian argued at trial that regardless of the threat's

relevance, Saunders denied threatening any witness in the case and, thus, the defense

was "entitled to impeach Mr. Saunders's statement." RP (Mar. 29, 2012) at 27. When

the trial court asked defense counsel to explain the evidence's relevance, counsel

argued it was admissible regardless of relevance.3 The trial court concluded the
evidence was not relevant to Saunders's credibility. In response, defense counsel

argued that Saunders "presented himself as somebody who was just a passive victim

here, he did not have, basically, an aggressive bone in his body, he was victimized by

this person, and yet here he is concocting crimes." RP (Mar. 29, 2012) at 30. The trial

court reiterated that the evidence was not relevant to Saunders's credibility and was

improper impeachment evidence.


      3 Defense counsel claimed that the State's failure to object opened the door to
impeach Saunders's testimony with the threat evidence. "That's the whole idea of
opening the door. So even if something is not relevant, once you open the door, it's
here whether it's relevant or not." The court responded, "I don't necessarily agree with
that. I think that if something's not relevant, there really is in my mind a question of
whether or not there's even a door to be opened." RP (Mar. 29, 2012) at 28.
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       We conclude the trial court properly precluded the impeachment testimony

regarding Saunders's alleged statement to Richardson. During Saunders's cross-

examination, defense counsel asked if he had threatened any witnesses in the case.

Saunders denied doing so. The inquiry ends there under ER 607. See State v. Barnes,

54 Wn. App. 536, 774 P.2d 547 (1989) (if inquiry under ER 607 is permitted to impeach

witness and the witness denies the prior conduct, "the inquiry [ends] because '[t]he

cross-examiner must take the answer of the witness and may not call a second witness

to contradict the first witness.'") (quoting 5A Karl B. Tegland, Washington Practice:

Evidence § 232(6), at 212 (3d ed. 1989)) (second alteration in original). Further, ER

608(b) precludes the defense from introducing extrinsic evidence to contradict

Saunders's testimony. Robinson's proposed testimony concerned an alleged threat

Saunders expressed to Robinson after Hailemarian robbed him. This testimony is not

probative of Saunders's character for truthfulness or untruthfulness and is inadmissible

under ER 608(b).

       Even assuming the truth of Robinson's proffered testimony, the trial court

properly determined it was not relevant. The proffered testimony does not rebut

Saunders's testimony. Nothing in the record indicates that Saunders threatened any of

the witnesses or actually conveyed a threat to Hailemarian. As the trial court noted, if

Robinson's testimony had any relevance at all, it was evidence of a statement

"consistent with someone who has been robbed" rather than an indication of Saunders's


veracity on the stand. RP (Mar. 29, 2012) at 30. We find no abuse of discretion in

precluding the proffered testimony.




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       Hailemarian also contends that the threat evidence is relevant and admissible

because it tends to prove the defense's theory of the case. He argues, "The fact of

Saunders' threat [to call his friends] during the fight is made far more probable by

evidence that two weeks after this incident, Saunders made a very similar threat" and

"Saunders' threatening behavior was an essential element of the defense theory that

this was not a robbery but a fight caused by escalating perceptions of disrespect."

Appellant's Br. at 10, 11. Hailemarian failed to raise this argument below, and we

decline to consider it for the first time on appeal.4 See State v. Scott, 110 Wn.2d 682,

685, 757 P.2d 492 (1988); RAP 2.5(a).




       4 Even if we address this argument, it lacks merit. Hailemarian relies on State v.
Young, 48 Wn. App. 406, 410, 739 P.2d 1170 (1987), for his argument that evidence of
Saunders's subsequent threat is relevant to the defense's theory that Hailemarian had
no intent to steal Saunders's phone and was merely trying to prevent being
outnumbered by Saunders's friends. In Young, the defendant was charged with
vehicular homicide after a truck he was driving went out of control and left the roadway,
killing two passengers. Young. 48 Wn. App. at 408. The defendant testified that during
the incident, one of his passengers grabbed the steering wheel and caused him to
crash. Young, 48 Wn. App. at 408. To support this argument, the defense sought to
offer evidence that on four prior occasions, the same passenger had grabbed the wheel
away from the driver. Young, 48 Wn. App. at 408-09. The trial court suppressed this
evidence, finding it unfairly prejudicial under ER 403. Young. 48 Wn. App. at 409.
Division Three of this court reversed based solely on ER 404(b), which allows evidence
of other crimes, wrongs, or acts to show proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident. Young. 48 Wn. App. at
412-13. The court deemed the evidence admissible to prove the identity of the person
truly responsible for the accident, control of the vehicle, and proximate cause of the
accident. Young. 48 Wn. App. at 413.
        Young is inapplicable here. Unlike in Young, the alleged threat here occurred
after the crime, not before. At most, the defense theory is that the alleged threat
showed Saunders's propensity for violence. This kind of propensity evidence (1) lacks
relevance as discussed above and (2) is barred by ER 404(b) and, thus, is inadmissible
even if the defense had raised this argument below. See ER 404; State v. Gresham,
173 Wn.2d 405, 420-21, 269 P.3d 207 (2012) (ER 404(b) is "categorical bar" to
admission of evidence to prove person's character or show he acted in conformance
with that character.).
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                                     CONCLUSION


      The trial court acted well within its discretion in precluding the proffered testimony

regarding Saunders's alleged threat to have his brother kill Hailemarian. We affirm.




WE CONCUR:




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