                                                                            ' FILED
                                                                      CCURT CF 'APPEALS fl'/
                                                                       STATE OF tilf-.SMGTO::
                                                                      201-MOV -6 Aii

     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 75656-7-1
                      Respondent,
        V.                                       DIVISION ONE

SEAN PAUL KELLY,                                 UNPUBLISHED OPINION

                      Appellant.                 FILED: November 6, 2017


       LEACH, J. — Sean Kelly appeals his conviction for second degree burglary

and possession of a controlled substance. He challenges the trial's court denial of

his motion for a mistrial after a witness testified about a third party's out-of-court

statements. Because this testimony was cumulative of other evidence and the

court's instruction cured any potential prejudice, the trial court did not abuse its

discretion in denying Kelly's motion. We affirm.

                                    Background

       Solid Ground provides housing and social services for low-income and

homeless individuals and families.       It operates a housing facility in several

buildings on an old naval base in Seattle's Magnuson Park. In February 2016,

Solid Ground was renovating one of its buildings. Crate & Barrel donated to it 50

to 75 boxes of items to furnish the renovated units. It stored the boxes in the

basement of the building.

       Sometime between Friday, February 26, 2016, and Monday, February 29,

2016, someone entered the basement of the unoccupied building, opened every
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box, dumped the contents on the floor, and broke some items. On Monday, Solid

Ground staff discovered this and called 911.

      Surveillance footage showed several people, including Kelly, moving

around inside the building and leaving it over the weekend. Kelly did not reside at

Solid Ground, but Solid Ground employees reported seeing him around the

complex. Police contacted Kelly as a suspect. Kelly explained that he was helping

a woman move and had entered the building through a window to get some boxes

for her. The police arrested Kelly. When they searched him, they found two

clonazepam pills in his hat.

       Later, after Solid Ground evicted tenant Bradley Minks and his family,

employees found boxes of the donated items from the basement in Minks's unit.

      The State charged and tried Kelly for burglary in the second degree and

possession of a controlled substance.          At trial, the State questioned Ryan

Rodriguez, a case manager who worked at the complex, about how he knew Kelly.

Rodriguez testified that he had seen Kelly with Minks and Minks's family at the

complex before the burglary and that Kelly was staying in the unit with Minks's

family. He then uttered the following unsolicited statement,"And the only reason 1

know—the only reason 1 say that he lived [in the building] is that Bradley Minks

had mentioned that after the incident.

       Defense counsel immediately objected and moved to strike this testimony.

The trial court sustained the objection and instructed the jury "to disregard anything

that the witness testified that some third person said." The trial court denied


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defense counsel's request for a mistrial. A jury convicted Kelly of both counts.

Kelly appeals.

                                      Analysis

       Kelly challenges the trial court's denial of his mistrial motion. A trial court

should grant a mistrial based on an irregularity at trial only when the irregularity so

prejudices the defendant that nothing short of a new trial can provide the defendant

with a fair tria1.1 "In determining whether a trial court abused its discretion in

denying a motion for a mistrial, we examine (1)the seriousness of the irregularity,

(2) whether the statement was cumulative of other properly admitted evidence, and

(3) whether the irregularity could be cured by an instruction."2 Because the trial

court is in the best position to determine if an irregularity at trial prejudiced the

defendant, it has broad discretion to grant or deny a mistrial based on those

irregularities.3 A trial court abuses its discretion only if it makes a manifestly

unreasonable decision or bases its decision on untenable grounds.4

       The irregularity here was not very serious. Courts have found irregularities

serious when the jury has heard inadmissible testimony that is inherently

prejudicial.   For example, in State v. Escalona,5 an assault case, a witness

mentioned the defendant's prior conviction for the same offense in violation of an


     1 State v. Wade, 186 Wn. App. 749, 773, 346 P.3d 838 (quoting State v.
Kwan Fai Mak, 105 Wn.2d 692, 701, 718 P.2d 407 (1986)), review denied, 184
Wn.2d 1004(2015).
     2 Wade, 186 Wn. App. at 773.
     3 Wade, 186 Wn. App. at 773.
     4 State v. Allen, 159 Wn.2d 1, 10, 147 P.3d 581 (2006).
     5 49 Wn. App. 251, 253, 742 P.2d 190 (1987).



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No. 75656-7-1 /4


order in limine. This court found the irregularity "extremely serious" because of the

inherently prejudicial nature of evidence of prior crimes and the lack of other

credible evidence against the defendant.6 Similarly, in State v. Babcock,7 Division

Three found the admission of hearsay testimony about a dismissed child

molestation charge in a child rape case to be an extremely serious irregularity.

       Kelly contends that the testimony here was inherently prejudicial because it

was like evidence of prior bad acts.8 He claims the testimony created a direct

connection between him and the stolen property. Kelly asserts that because the

testimony indicates that he committed the crimes of theft and possession of stolen

property, it improperly showed that he likely also committed the burglary. Although

the jury could extrapolate from Rodriguez's statement that Kelly lived with Minks

and draw some inference about Kelly's involvement in the theft of the donated

goods, the inconspicuous nature of the testimony is not as prejudicial as the prior

assault conviction in Escalona or the child molestation charge in Babcock. While

Rodriguez's testimony about Kelly living with Minks is relevant to the case, the

prejudice here does not rise to the level of the irregularities in Escalona or Babcock.

       We further distinguish this case from Escalona and Babcock because

testimony from Rodriguez did not comprise the State's entire case. In those cases,

the irregularity occurred during testimony from the State's key witnesses.9 But

       6 Escalona, 49 Wn. App. at 255.
       7 145 Wn. App. 157, 161-62, 163-64, 185 P.3d 1213(2008).
       8 "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." ER 404(b).
       9 Escalona, 49 Wn. App. at 255 (noting the testimony "was essentially the
State's entire case" and "contained many inconsistencies"); Babcock, 145 Wn.

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No. 75656-7-1/ 5


here, other strong evidence connected Kelly to the burglary. Surveillance footage

showed Kelly near the scene of the crime, and multiple witnesses gave admissible

testimony about Kelly's association with Minks. This other evidence makes any

potential prejudice to Kelly minimal.

       Further, Rodriguez's testimony was cumulative of other evidence.             In

particular, Solid Ground program manager Tamara Brown Spiller testified she

recognized Kelly because he had stayed with Minks.             And other testimony

indicated an association between Kelly and Minks. Rodriguez testified that he had

seen Kelly with Minks and Minks's family at the complex before the burglary.

Kelly's own witness testified that Kelly spent time at Minks's residence.

Rodriguez's inadmissible testimony merely repeated what other evidence directly

and indirectly showed.

       Finally, the trial court's instruction to the jury cured the irregularity. After

Rodriguez testified as to Minks's statements, the court immediately instructed the

jury to disregard testimony about third party statements. We presume that juries

follow the court's instructions.10 The instruction did not "unduly emphasize the

testimony,"11 and the irregularity was not "inherently prejudicial and of such a

nature as to likely impress itself upon the minds of the jurors.'"12 Thus, the court's



App. at 164 (where the verdict depended solely on the jury's credibility
determinations about testimony that was at times inconsistent).
      10 Escalona, 49 Wn. App. at 255.
      11 State v. Gamble, 168 Wn.2d 161, 178, 225 P.3d 973(2010).
      12 Escalona, 49 Wn. App. at 255 (quoting State v. Miles, 73 Wn.2d 67, 71,
436 P.2d 198 (1968)).

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No. 75656-7-1 /6


instruction adequately cured the irregularity here. The court properly denied

Kelly's motion for a mistrial.

       Kelly asks this court to deny the State appellate costs based on his

indigency. We generally award appellate costs to the substantially prevailing party

on review. However, when a trial court makes a finding of indigency, that finding

continues throughout review "unless the commissioner or clerk determines by a

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency."13 Here, the trial

court found Kelly indigent.      If the State has evidence indicating significant

improvement in Kelly's financial circumstances since the trial court's finding, it may

file a motion for costs with the commissioner.

                                     Conclusion

       Because the improper testimony was cumulative of other evidence and

the court's instruction cured any potential prejudice, the trial court did not abuse

its discretion in denying Kelly's mistrial motion. We affirm.




WE CONCUR:




       13   RAP 14.2.

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