IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE

STATE OF WASHINGTON,                       )       No. 78424-2-1
                                           )
                     Respondent,           )
                                           )
          v.                               )
                                           )
KEDRA D. DERRICK-DICKSON,                  )       UNPUBLISHED OPINION
                                           )
                     Appellant.            )       FILED: November 4, 2019
                                           )

       VERELLEN, J. — Kedra Derrick-Dickson appeals her conviction of theft and
trafficking in stolen property for the theft and sale of several iPhones. At trial, the

court admitted text messages between Derrick-Dickson and a buyer of one of the

phones. The court did not abuse its discretion when it admitted the messages

because ER 404(b) does not apply. And for this reason, defense counsel's

representation was not deficient when he failed to object to the admission of the

messages under ER 404(b).

       Therefore, we affirm.

                                          FACTS

       Derrick-Dickson worked at an AT&T store in Federal Way. On May 3, 2016,

Dustin Ramsdell, the store manager, noticed Derrick-Dickson had sold 12 iPhones

the previous day. Because this was an unusually large number, Ramsdell

researched the sale.
No. 78424-2-1/2


       Derrick-Dickson had sold the iPhones to The Welding Company, a business

from Yakima. Derrick-Dickson had paid the tax for each phone and placed the

remainder of the costs on a payment plan. Ramsdell attempted to contact The

Welding Company, but the listed number was no longer in service.

       A few days later, Navardai Verespej messaged a seller on an Internet buyer

and seller marketplace application about purchasing an iPhone. Verespej met the

seller, Derrick-Dickson, in a parking lot. Derrick-Dickson did not get out of the car.

Verespej paid her for the iPhone.

       The State charged Derrick-Dickson with one count of first degree theft and one

count of first degree trafficking in stolen property. Before trial, defense counsel

withdrew his standard ER 404(b) objection because he did not foresee the State

offering any ER 404(b) evidence. In response, the State stated it intended to offer

the following text messages between Verespej and Derrick-Dickson:

       VERESPEJ:            Do you still have it? If so what's the lowe[st] you'd
                            go?

       DEFENDANT:           650

       VERESPEJ:            Sounds good! Where can we meet?

       VERESPEJ:            I need i[t] today since mine is not working anymore

       DEFENDANT:           Sorry I only have 64 g left I can do 630... I truly
                            apologize for the screw up

       VERESPEJ:            Is it the Rose one for[AT&T]?

       DEFENDANT:           Yes

       VERESPEJ:            I really need the 128 but ill give you $550 for that
                            one



                                            2
No. 78424-2-1/3


      DEFENDANT:           Sorry 620 is the lowest I can go

      VERESPEJ:            III give you $600

      VERESPEJ:            I need a phone asap

      DEFENDANT:           I can't. 620 and it's yours

      VERESPEJ:            Sure! Can we meet around Bellevue or Renton?

      DEFENDANT:          Yes... can we meet at the Applebee's in Renton
                          .. what time would u like to meet

      VERESPEJ:            Can we meet at the LA fitness

      VERESPEJ:            At the landings

      DEFENDANT:           Yes... what time's good for u

      VERESPEJ:            After 6

      VERESPEJ:            Does that work for you?

      DEFENDANT:           Yes that's fine ... 2064191179 message me when
                           ready

      VERESPEJ:            Ok

      VERESPEJ:            I'm [at] the gym already! Let me know when you're
                           here[1]

      The State argued the messages were admissible as res gestae. Defense

counsel agreed and stated he was not planning to object to the text messages under

ER 404(b) but raised a concern with the authenticity of the messages.

      After an initial voir dire on the authenticity of the messages,the court found

"the State has made a prima facie showing that the texts are what they purport to be




       1 Ex. 3.

                                          3
No. 78424-2-1/4


and the evidence is authentic and admissible as far as[ER]901 is concerned."2 The

court asked defense counsel if he had any other objections to the admissibility of the

text messages, including under ER 404(b), and defense counsel indicated he did not.

       At trial, the court admitted the text messages. Defense counsel reminded the

court of his previous authenticity objection but did not raise any other objection. Also

at trial, Verespej identified Derrick-Dickson as the seller, and Ramsdell identified the

phone number in the text messages as Derrick-Dickson's phone number. The jury

convicted Derrick-Dickson as charged.

       Derrick-Dickson appeals.

                                       ANALYSIS

I. ER 404(b)

       Derrick-Dickson contends the trial court abused its discretion when it admitted

the text messages between Verespej and Derrick-Dickson.

       We review a trial court's decision to admit evidence for abuse of discretion.3

       Relevant evidence is "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." "All relevant evidence is

admissible, except as limited by constitutional requirements or as otherwise provided




       2Report of Proceedings (Feb. 28, 2018) at 52.
      3 State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d 207(2012)(quoting State
v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007)).
       4 ER 401.



                                            4
No. 78424-2-1/5


by statute, these rules, or by other rules or regulations applicable in the courts of this

state."5

       For the first time on appeal, Derrick-Dickson challenges the admissibility of the

text messages under ER 404(b).

       ER 404(b) addresses the admissible of evidence of other crimes, wrongs or

acts of the defendant. Such evidence "is not admissible to prove the character of a

person in order to show action in conformity therewith."8 But evidence of the

defendant's prior bad acts may be admissible to show "motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident."7

       The messages do not fall under ER 404(b) because they are not evidence of

Derrick-Dickson's "other crimes, wrongs, or acts"; rather, the messages are evidence

of the charged crimes. The State charged Derrick-Dickson with one count of first

degree theft and one count of first degree trafficking in stolen property. A person is

guilty of first degree trafficking if she "knowingly initiates, organizes, plans, finances,

directs, manages, or supervises the theft of property for sale to others, or who

knowingly traffics in stolen property."8 The text messages are relevant because they

identify Derrick-Dickson as the seller. And the messages are relevant to show

Derrick-Dickson organized and planned to sell Verespej the stolen iPhone. ER

404(b) does not apply.



       5 ER   402.
       6 ER 404(b).
       7 ER 404(b).
       8   RCW 9A.82.050(1).

                                             5
No. 78424-2-1/6


      We conclude the trial court did not abuse its discretion when it admitted the

text messages between Derrick-Dickson and Verespej.

II. Ineffective Assistance of Counsel

      Derrick-Dickson argues she received ineffective assistance of counsel

because her attorney failed to maintain his ER 404(b) objection.

      We review ineffective assistance of counsel claims de novo.° To prevail on a

claim of ineffective assistance of counsel, the defendant must show both (1) that

defense counsel's representation was deficient and (2) that the deficient

representation prejudiced the defendant.1°

       Because the text messages do not constitute ER 404(b) evidence, defense

counsel had no obligation to maintain an ER 404(b) objection to the admission of the

messages. Because Derrick-Dickson does not establish deficient representation, we

need not address prejudice. Derrick-Dickson's claim of ineffective assistance fails.

       We affirm.




WE CONCUR:




      9 State   v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
       10 State v. Grier, 171 Wn.2d 17, 32,246 P.3d 1260(2011)(quoting Strickland
v. Washington, 102 S. Ct. 2052,80 L. Ed. 2d 674 (1984)).

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