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

THE STATE OF WASHINGTON,                         No. 75723-7-1

                           Respondent,

                 V.                              UNPUBLISHED OPINION

WALLACE DEAN BORNINKHOF,

                           Appellant.            FILED: April 23, 2018

       SCHINDLER, J. — A jury convicted Wallace Dean Borninkhof of possession

of methamphetamine. Borninkhof seeks reversal, arguing the trial court erred by

admitting evidence of an outstanding warrant. Because the evidence was

admissible under the res gestae exception to ER 404(b) and overwhelming

evidence supports the conviction, we affirm.

       At approximately 4:00 a.m. on July 5, 2015, Auburn Police Department

Officer Jason Schultz saw two men walking out of a wooded area near Zion

Lutheran Church. As Officer Schultz pulled into the church parking lot, the two

men were walking toward a parked car. Officer Schultz called for backup. As

Officer Schultz started walking to the car in the church parking lot, one of the

men, later identified as Wallace Dean Borninkhof, walked away in another
No. 75723-7-1/2

direction. Officer Schultz asked Officer Chris Boldman to try to locate

Borninkhof.

       Officer Boldman found Borninkhof about eight blocks away. Officer

Boldman got out of the patrol car and approached Borninkhof. Officer Boldman

told Borninkhof that he was "free to leave" at any time.1 Officer Boldman asked

Borninkhof for his name. Borninkhof gave Officer Boldman his identification card.

Officer Boldman ran a records check. There was an outstanding warrant for

Borninkhofs arrest.

       Officer Boldman arrested Borninkhof. During a search incident to arrest,

Officer Boldman found an eyeglass case with two bags of a crystalline

substance. Officer Boldman recognized the substance as "consistent in

appearance, odor,[and] weight" with methamphetamine. The unpackaged

crystalline substance weighed 23.1 grams.

       Washington State Patrol Crime Laboratory(WSPCL)forensic scientist

Ray Kusumi tested the substance. The tests showed the substance contained

methamphetamine.

      The State charged Borninkhof with possession of methamphetamine.

Borninkhof pleaded not guilty.

       Before the trial, the defense moved to exclude evidence of the warrant for

"failure to appear for a post-conviction review hearing" under ER 404(b) and ER

403. Defense counsel argued the evidence "would allow the jury to speculate"

that Borninkhof was "charged with some prior crime" and that he "failed to


      1 Boldface omitted throughout the opinion.


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properly appear in that matter." Defense counsel contended the evidence was

inadmissible propensity evidence under ER 404(b) and unfairly prejudicial under

ER 403.

       The prosecutor argued evidence of the warrant was admissible under the

res gestae exception to ER 404(b) because otherwise, "there was no reason to

arrest the defendant. And without that information... , really none of it makes

any sense." The prosecutor told the court the State would not elicit "any

testimony" about the reasons for the warrant.

       The court ruled the evidence of the warrant was admissible to explain the

search incident to arrest. The court then weighed the prejudice against the

probative value:

       The existence of the warrant clearly is prejudicial to the defense.
       The question is whether the probative value outweighs undue
       prejudice. One could argue that a warrant is. .. evidence of
       nothing other than perhaps a failure to appear as opp — not
       nothing, but something de minimis. Similarly, because there's a
       search incident to arrest, there's got to be, before the jury, a reason
       for the arrest.

The court ruled the State could not introduce the underlying basis for the warrant

but denied the motion to exclude evidence of the warrant entirely because

"effectively, it's suppressing an explanation for... how and when the officers

found the narcotics."

       The State called Officer Schultz, Officer Boldman, and WSPCL forensic

scientist Kusumi to testify at trial. Officer Boldman testified that he arrested

Borninkhof based on an outstanding warrant.

       Q      Okay. And did dispatch have any information about the
              defendant?


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       A      Yes. They advised that there was a — dispatch advised
              there was a warrant for his arrest.
       Q      And what did you do with that information?
       A      Advised the defendant he was under arrest and handcuffed
              him.

Officer Boldman did not state the underlying basis for the warrant. Officer

Boldman said it is "standard practice" to search a person after an arrest. Officer

Boldman testified that he found an eyeglass case in Borninkhofs waistband with

"two bags of a crystalline substance." Borninkhof did not testify.

       During closing argument, defense counsel argued the defense of unwitting

possession of the methamphetamine. The jury found Borninkhof guilty as

charged. The court sentenced Borninkhof to eight months.

       Borninkhof contends the court abused its discretion by admitting testimony

that there was an outstanding warrant for his arrest.

       The admissibility of evidence is within the discretion of the trial court.

State v. Bourgeois, 133 Wn.2d 389, 399, 945 P.2d 1120 (1997). We review a

trial court's ruling on the admissibility of evidence for manifest abuse of

discretion. State v. Gould, 58 Wn. App. 175, 180, 791 P.2d 569(1990).

       Before a court may admit evidence under an exception to ER 404(b), the

court must(1)find by a preponderance of the evidence that the misconduct

occurred,(2) determine whether the evidence is relevant to a material issue,(3)

state on the record the purpose for which the evidence is being introduced, and

(4) balance the probative value of the evidence against the danger of unfair

prejudice. State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997).




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No. 75723-7-1/5

       Evidence is relevant when it has "any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable

or less probable." ER 401. A fact bearing on the credibility or probative value of

other evidence is relevant. Relevant evidence is admissible unless a rule of law

prohibits its admission. ER 402.

       Under ER 404(b), evidence of a defendant's other crimes, wrongs, or acts

is not admissible "to prove the character of a person in order to show action in

conformity therewith." ER 403 prohibits the admission of relevant evidence "if its

probative value is substantially outweighed by the danger of unfair prejudice."

       Washington courts recognize res gestae as an exception to ER 404(b).

State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929(1995). The res gestae

exception allows admission of evidence of other crimes or bad acts when

"evidence about the charged crime will naturally pique the jury's curiosity about

the aspect of the transaction the uncharged misconduct relates to, and forcing

the witness to avoid that aspect of the case will leave the jurors dangling and

suspicious." 1 EDWARD J. IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE §

6:30, at 6-111 (rev. ed. Supp. 2005);2 see also Lane, 125 Wn.2d at 831 (res

gestae exception "'complete[s]the story of the crime on trial by proving its

immediate context of happenings near in time and place'")3(quoting State v.

Tharp, 27 Wn. App. 198, 204,616 P.2d 693(1980)). The evidence is admissible




       2 Citations omitted.

       3 Internal   quotation marks omitted.


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No. 75723-7-1/6

"'in order that a complete picture be depicted for the jury.'" Brown, 132 Wn.2d

at 571 (quoting State v. Tharp, 96 Wn.2d 591, 594,637 P.2d 961 (1981)).

       The court did not abuse its discretion by admitting testimony that there

was an outstanding warrant under the res gestae exception to ER 404(b). The

court ruled the testimony was relevant to show the sequence of events leading to

Borninkhofs arrest and the discovery of methamphetamine during the search

incident to arrest. The court concluded that without that testimony, the jury would

not know why the officer arrested and conducted a search of Borninkhof. The

court acknowledged that evidence of the warrant was prejudicial to Borninkhof

but the probative value outweighed the risk of unfair prejudice.

       Borninkhof cites State v. Aaron, 57 Wn. App. 277, 787 P.2d 949(1990), to

argue the testimony was inadmissible under ER 404(b). Aaron does not address

the res gestae exception to ER 404(b) and is distinguishable. In Aaron a 911

dispatcher told the investigating officer that "the defendant was using [a] blue

jeans jacket to push his way through the bushes" to retrieve stolen property.

Aaron, 57 Wn. App. at 279. The officer found a blue jeans jacket in the car

Aaron occupied just before the arrest. Aaron, 57 Wn. App at 279. The defense

objected to the officer's testimony about what the dispatcher said about the blue

jeans jacket as hearsay. Aaron, 57 Wn. App. 279. Unlike here, the State argued

the testimony was admissible to show the officer's state of mind in stopping

Aaron's car and arresting him. Aaron, 57 Wn. App. at 279-80. During trial, the

court overruled the defense objection. Aaron, 57 Wn. App. at 280.




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       On appeal, we concluded admission of the testimony was error because

the legality of the search and seizure was not at issue at the suppression hearing

or at trial, and therefore, the officer's state of mind was not at issue. Aaron, 57

Wn. App. at 280-81; see also State v. Johnson, 61 Wn. App. 539, 545, 811 P.2d

687(1991)(out-of-court statements made to a police officer are admissible to

show the officer's state of mind "only if their state of mind is relevant to a material

issue in the Case"). We noted that the "clear" purpose for introducing the

testimony was "to suggest to the jury that the jacket containing the watch and

jewelry stolen from [the victim] belonged to Aaron." Aaron, 57 Wn. App. 280.

       For the first time on appeal, Borninkhof argues the court should have

limited Officer Boldman's testimony to a statement that he acted upon

"information received." See Aaron, 57 Wn. App. at 281 (the officer could properly

testify that he "acted upon 'information received'")(quoting E. CLEARY,

MCCORMICK ON EVIDENCE § 249, at 733(3d ed. 1984)). We do not consider

evidentiary objections raised for the first time on appeal. State v. Kirkman, 159

Wn.2d 918, 926, 155 P.3d 125(2007).

       We conclude the court did not abuse its discretion in admitting the

evidence of Borninkhofs outstanding warrant. Further, the record establishes

overwhelming evidence supports the jury finding Borninkhof guilty of possession

of methamphetamine. An evidentiary error results in reversal only if the error,




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within reasonable probability, materially affected the outcome of the trial. State v.

Jackson, 102 Wn.2d 689,695,689 P.2d 76(1984).

       We affirm the jury conviction.




WE CONCUR:




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