               IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 78814-1-I
                       Respondent,
          v.                                    DIVISION ONE

SETH ARNESON,                                   UNPUBLISHED OPINION

                       Appellant.



          LEACH, J. — Seth Arneson appeals his conviction for possession of a stolen

vehicle. First, he challenges the trial court’s admission of evidence of shaved keys that

the police found on him. Next, he claims the sentencing court should have decided that

some of his prior convictions were the same criminal conduct for offender score

calculation purposes. Finally, he claims the sentencing court should not have added a

point for escaping from community custody to his offender score for the possession of a

stolen vehicle conviction.

          The court’s admission of the key evidence did not violate ER 404(b) because it

was not “prior bad act” propensity evidence. Next, if the trial court should have found

the same criminal conduct as claimed, any error was harmless. Finally, the trial court

properly counted the escape from community custody violation when calculating

Arneson’s offender score for his possession of a stolen motor vehicle conviction. We

affirm.
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                                         FACTS

       Officer Mark Wilde pulled over a 1999 Mazda Protégé driven by Seth Arneson

after learning the car was stolen. Officer Wilde ordered Arneson out of the vehicle and

told Arneson to throw the key ring he had in his hand on the ground. The key ring had

one Volkswagen key and two Ford keys. They were “jiggler” keys, which are worn or

filed down keys people can use to “insert into either a lock cylinder or ignition cylinder,

and then by shaking the key … defeat the tumblers and either unlock or start a car.”

None of the keys on the key ring started the Mazda. Officer Wilde found another key

underneath the driver’s seat while searching the vehicle. The key was also a “jiggler”

key and Officer Wilde was able to start the vehicle with that key.

       Before trial, Arneson contended that ER 404 precluded admission of evidence

about the “jiggler” keys found on him, reasoning it is “propensity type evidence” and is

unduly prejudicial. The court ruled the evidence admissible after concluding it was not

propensity evidence.

       Arneson pleaded guilty to violating community custody before trial. He stipulated

to all of his prior convictions.

       After voir dire, the State informed the court that a “jiggler” key, found under the

driver’s seat, would start the Mazda. The court admitted this evidence, reasoning it was

relevant to show “that there was some key that could have been used to operate the car

that was not only in the car but in an area where the defendant could either reach it or

have put it.”

       The jury found Arneson guilty of possession of a stolen vehicle. At sentencing,

the State calculated the standard range at 43-57 months based on the offender score of




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12. Arneson requested a sentence of 43 months, which was the low-end of that range.

The judge sentenced Arneson to 50 months on Count 1 and 40 days on Count 2,

running concurrently, “given [his] score of 12.”     The court used the following prior

convictions for the score calculation:

          •   Attempt Residential Burglary
          •   Residential Burglary
          •   First Degree Child Molestation
          •   Second Degree Child Molestation
          •   Possess Depictions of Minor Engaged in Sexually Explicit
              Misconduct
          •   VUCSA-Possession
          •   Second Degree Possession of Stolen Property
          •   Violation of Community Custody
          •   Possession of Stolen Vehicle
          •   Residential Burglary

       The court also added one point because “[t]he defendant committed [the

possession of a stolen vehicle] while on community custody.” Arneson appeals.

                                         ANALYSIS

       Arneson raises three issues. First, he contends the admission of the “jiggler” key

evidence violated ER 404(b) because it was propensity evidence. Second, he claims

the court miscalculated his offender score by not treating certain prior convictions as the

same criminal conduct. Finally, he contends the trial court made a second error in

calculating his offender score by adding a point for his escape conviction.

ER 404(b) Evidence

       Arneson claims the trial court should not have admitted the evidence of the

“jiggler” keys because it was “propensity evidence” that violated ER 404(b). He states

the court did not identify the purpose of the evidence and its relevance to an essential

element of the crime.



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         ER 404(b) provides that:

         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. It
         may, however, be admissible for other purposes, such as proof of motive,
         opportunity, intent, preparation, plan, knowledge, identity, or absence of
         mistake or accident.[1]

         ER 404(b) pertains to prior bad acts like a prior criminal conviction. Arneson had

some “jiggler” keys on his person when an officer pulled him over in the stolen vehicle.

The officer found another similar key under the floor mat of the seat where Arneson sat

while driving the car. This key would start the car. A juror could reasonably infer that

this key came from the set of keys carried by Arneson. And, a juror could reasonably

infer that Arneson used this key to start the stolen car. So, the keys are evidence a

juror could reasonably rely on to find that Arneson provided the key used to start the car

and which he knew was stolen. This means the keys are evidence of an element of the

charged crime and not “prior bad act” evidence. 2 The trial court did not err in admitting

the evidence.

Offender Score Calculation

         Arneson next claims the trial court should have analyzed his prior criminal

convictions to determine whether any were the same criminal conduct for offender score

calculation purposes. He relies on his earlier 2013 judgment and sentence for unrelated

multiple felony convictions. While this judgment and sentence did not explicitly identify

earlier convictions for four counts of possession of child pornography as the same




1   ER 404(b).
2   State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).


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conduct, 3 he contends the offender score used in 2013 shows the 2013 sentencing

court treated them as the same criminal conduct. 4 He claims the trial court in this case

should have treated these four prior offenses the same as the 2013 court did and with a

same criminal conduct inquiry.

      RCW 9.94A.525(5)(a)(i) requires a trial court to determine whether prior

convictions constitute the “same criminal conduct” when computing the defendant’s

offender score. 5 Even if we reject the State’s claim that Arneson waived this issue by

affirmatively acknowledging his offender score, the trial court’s failure to conduct a same

criminal conduct analysis or treat his prior crimes as the same criminal conduct was

harmless.

      Arneson asserts the trial court “count[ed] these four prior convictions as four

points, rather than one towards Mr. Arneson’s offender score.” If the trial court had

found the four previous convictions were the same criminal conduct producing one

point, Arneson’s offender score would have been 9 rather than 12.             But, as the

sentencing judge correctly noted, the sentencing range here does not change once

Arneson’s score reached 9. 6

      Arneson admitted that “the sentence imposed is actually within the correct

standard range,” but “the court could have imposed a lower sentence within the range.”



3 For purposes of future appeals, the trial courts should explicitly explain how they are
counting sentencing scores.
4 Based on the criminal history set out in the prior judgment and sentence, the

sentencing court must have calculated the four current offenses as one, because
Arneson’s criminal history resulted in an offender score of eight and he was assigned
one point for committing the current offense while on community custody, which added
an additional point to his offender score for a total offender score of nine.
5 RCW 9.94A.525(5)(a)(i).
6 RCW 9.94A.510.



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He relies on In re Goodwin, where the Supreme Court stated a sentence within the

correct standard range results in a miscarriage of justice, “if the trial court had indicated

its intent to sentence at the low end of the range, and the low end of the correct range is

lower than the low end of the range determined by using the incorrect offender score.”7

       The judge here expressed no intent to sentence at the low end of the range. The

judge commented on “Arneson’s rather extensive criminal history, some of which is

actually quite recent, especially when I take into account the times that he spent in

custody and presumably would not be able to commit offenses that he was taking up

again pretty soon after getting out of custody.” And, while the judge commented on his

score, she said, “I think one could actually argue that a higher end would be reasonable,

given the score of 12, because the range doesn’t change once you hit 9.”

       So, unlike the facts in Goodwin, here the trial judge expressed no intent to

impose a low end sentence. So, any error in calculating Arneson’s score based on the

four prior convictions was harmless.

Violation of Community Custody

       Arneson claims the trial court should not have counted his current offense,

escape from community custody, as an “other current offense” when sentencing him for

the possession of a motor vehicle conviction.

       RCW 9.94A.525(14) states that when a present conviction is for escape from

community custody, a court may only count prior escape convictions in the offender




7In re Goodwin, 146 Wn.2d 861, 868, 50 P.3d 618 (2002) (citing In re Johnson, 131
Wn.2d 558, 569, 933 P.2d 1019 (1997).


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score. 8 This provision says nothing about how to count an escape conviction when

calculating an offender score for a different crime.

        In calculating his score for possession of a stolen motor vehicle, the trial court

included a point for his escape from community custody conviction. The court did not

do this when calculating his offender score for his current escape from community

custody conviction. RCW 9.94A.525(14) does not address, let alone prohibit, including

a point for an escape conviction when calculating an offender score for a crime other

than an escape from community custody conviction. 9 So, the trial court did not err in

including the point for escape from community custody for Arneson’s conviction of

possession of a stolen vehicle.

        Arneson claims RCW 9.94A.525(14) only permits a court to score prior and not

current escape from community custody convictions any time it is calculating offender

scores for the purpose of sentencing. But, the statute does not say this. As noted, the

statute’s prohibition against the inclusion of a current escape from community custody

to the offender score calculation, by its express language, only applies when the court is

calculating a score for a current conviction for escape from community custody. It does

not apply to an offender score calculation for convictions of other crimes committed at

the same time. Arneson’s claim fails.

                                      CONCLUSION

        The court did not violate ER 404(b) when it admitted the “jiggler” key evidence,

because it was not “prior bad act” propensity evidence. Also, any error the trial court

may have made in failing to conduct the prior criminal conduct analysis was harmless.


8   RCW 9.94A.525(14).
9   RCW 9.94A.525(14).


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Finally, the trial court did not err in counting his escape from community custody

violation when calculating his offender score for his possession of a stolen motor vehicle

conviction. We affirm.




WE CONCUR:




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