                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      February 19, 2020

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
    STATE OF WASHINGTON,                                           No. 51809-1-II

                                Respondent,

         v.

    ROSS WARNER KIDD,                                       UNPUBLISHED OPINION

                                Appellant.

        MELNICK, J. — A jury convicted Ross Kidd of burglary in the second degree and other

crimes.1 Kidd argues that the trial court violated his right to present a defense and abused its

discretion by excluding evidence which would have cast doubt on the State’s evidence that he

entered a building. Kidd also argues that the trial court erred by imposing unauthorized legal

financial obligations (LFOs).

        We affirm Kidd’s conviction but remand for resentencing on LFOs.

                                              FACTS

        One morning, a witness saw Kidd running across Lauren Butler-Thomas’s property

holding two weed eaters. The police eventually caught and detained Kidd.




1
 Because those crimes are not relevant to any issues on appeal, many of the facts underlying those
matters are not discussed further.
51809-1-II


         They then examined a shed on Butler-Thomas’s property where she stored the weed eaters.

The police noticed the doors of the shed were open. A padlock hung on the hasp of one door.2

         The State charged Kidd with burglary in the first degree3 and other crimes related to events

that occurred during Kidd’s attempted escape. Kidd pled not guilty, and the case proceeded to

trial.

         Before trial, Kidd sought to introduce evidence that other people had access to the shed

where Butler-Thomas stored the weed eaters and that the shed had been subject to numerous

unwanted intrusions. Specifically, Kidd sought to introduce evidence that unauthorized people

would break into the shed and sleep in it and that, as a result, Butler-Thomas stopped locking the

shed because the padlock kept getting broken.

         The State moved to exclude such evidence. The State argued that Kidd’s proffered

evidence was inadmissible “other suspects” evidence.

         The court heard argument on whether to admit the evidence. The State argued that Kidd

had failed to show a non-speculative connection between anyone else and the crime.

         Kidd argued that this evidence was not “other suspects” evidence. He stated that he did

not plan on using this evidence to blame someone else for the crime but rather wanted to use it to

dispute the “entry” element of his burglary charge.




2
 Evidence showed that the key for the lock had been lost a few years prior. So when family
members stored the weed eaters, they would simply hook the lock through the hasp on the door to
make the shed appear locked.
3
  Because the jury found Kidd guilty of the lesser included charge of burglary in the second degree,
we have omitted any evidence that would have supported the greater charge and any evidence that
is not relevant to any issues on appeal.


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51809-1-II


       The court granted the State’s motion. The court ruled that the evidence constituted “other

suspects” evidence and that Kidd failed to lay a sufficient foundation to admit it. The case

proceeded to trial.

       At trial, Kidd admitted to stealing the weed eaters. However, he disputed ever entering the

shed. Rather, Kidd claimed that he took the weed eaters after seeing them leaning up against the

outside of the shed.

       The jury found Kidd not guilty of burglary in the first degree, but guilty of the inferior

degree crime of burglary in the second degree; it also found Kidd guilty of unlawful possession of

a controlled substance, obstructing a law enforcement official, and theft in the third degree.

       The court sentenced Kidd to 60 months of confinement. The court imposed a criminal

filing fee and deoxyribonucleic acid (DNA) database fee on Kidd, and it ordered that interest

accrue on Kidd’s LFOs until paid in full. The court found Kidd indigent. Kidd appeals.

                                           ANALYSIS

I.     EXCLUSION OF EVIDENCE

       Kidd argues that, because he did not proffer “other suspects” evidence, the trial court erred

in excluding it. Kidd contends that the error violated his Sixth Amendment right to present a

defense. We disagree.

       Criminal defendants have a constitutional right to present a defense. U.S. CONST. amends.

V, VI, XIV; WASH. CONST. art. I, §§ 3, 22; Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct.

1038, 35 L. Ed. 2d 297 (1973). However, “[t]his right is not absolute.” State v. Arredondo, 188

Wn.2d 244, 265, 394 P.3d 348 (2017). It “does not extend to irrelevant or inadmissible evidence.”

State v. Wade, 186 Wn. App. 749, 764, 346 P.3d 838 (2015). “The accused does not have an

unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under



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51809-1-II


standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 98 L. Ed. 2d

798 (1988). The defendant’s right to present a defense is subject to “established rules of procedure

and evidence designed to assure both fairness and reliability in the ascertainment of guilt and

innocence.” Chambers, 410 U.S. at 302; State v. Cayetano-Jaimes, 190 Wn. App. 286, 296, 359

P.3d 919 (2015).

       When reviewing evidentiary errors potentially implicating constitutional rights, we first

look to see if the trial court abused its discretion in the excluding evidence. State v. Arndt,

___Wn.2d___, 453 P.3d 696, 703 (2019); State v. Blair, 3 Wn. App. 2d 343, 351, 415 P.3d 1232

(2018). We then review de novo whether the evidentiary ruling violated the defendant’s right to

present a defense. Arndt, 453 P.3d at 703.

       A trial court abuses its discretion when its “decision is manifestly unreasonable, or is

exercised on untenable grounds, or for untenable reasons.” State v. Blackwell, 120 Wn.2d 822,

830, 845 P.2d 1017 (1993). “A decision is based ‘on untenable grounds’ or made ‘for untenable

reasons’ if it . . . was reached by applying the wrong legal standard.” State v. Rohrich, 149 Wn.2d

647, 654, 71 P.3d 638 (2003) (quoting State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922

(1995)).

       “Washington law places limits on the ability of a criminal defendant to blame another

person for the crime.” State v. Hawkins, 157 Wn. App. 739, 751, 238 P.3d 1226 (2010). This type

of evidence is referred to as “other suspects” evidence. “In the classic other suspects case, the

defendant blames the specific crime for which he has been charged on someone else.” Hawkins,

157 Wn. App. at 751.

       When a defendant offers “other suspects” evidence, he or she must lay a specific

foundation. “Before such testimony can be received, there must be such proof of connection with



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51809-1-II


the crime, such a train of facts or circumstances as tend clearly to point out someone besides the

accused as the guilty party.” State v. Downs, 168 Wn. 664, 667, 13 P.2d 1 (1932). “Other suspect

evidence that establishes only . . . suspicion is inadmissible.” State v. Franklin, 180 Wn.2d 371,

380, 325 P.3d 159 (2014).

       However, “[w]hen the State’s case is entirely circumstantial, the Downs rule is relaxed to

an extent to allow a reply in kind: the ‘defendant may neutralize or overcome such evidence by

presenting sufficient evidence of the same character tending to identify some other person as the

perpetrator of the crime.’” State v. Hilton, 164 Wn. App. 81, 99, 261 P.3d 683 (2011) (quoting

State v. Clark, 78 Wn. App. 471, 479, 898 P.2d 854 (1995)).

       We conclude that Kidd’s proffered evidence was “other suspects” evidence. Kidd wanted

to use the evidence to argue that somebody else entered the shed, took the weed eaters from inside

it, and placed them outside the shed. Thus, he intended to argue that someone else committed a

burglary. He argued that he took the weed eaters from outside of the shed, and his proffered

evidence would have supported his theory.

       Accordingly, the trial court applied the correct legal standard and did not abuse its

discretion in excluding the evidence based on Kidd’s failure to lay a sufficient foundation. The

court’s ruling excluding the evidence did not violate Kidd’s right to present a defense.

II.    LFOS

       Kidd argues, and the State agrees, that because of the 2018 amendments to the LFO

statutes, we should strike the criminal filing fee, DNA database fee, and interest accrual provision

that the trial court imposed on him.




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51809-1-II


        We remand for the trial court to reconsider the imposition of LFOs. On remand, the trial

court should consider all of the LFOs in light of the 2018 amendments to the LFO provisions,

Laws of 2018, ch. 269, and State v. Ramirez, 191 Wn.2d 732, 426 P.3d 714 (2018).

        We affirm Kidd’s convictions but remand for resentencing on LFOs.

        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.




                                                            Melnick, J.

We concur:




        Maxa, C.J.




        Glasgow, J.




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