IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HERMAN M. SEDILLO, No. 87939-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
STEVEN M. FINLAN, as the PERSONAL REPRESENTATIVE OF THE ESTATE OF ALEXANDER K. FINLAN; STEVEN M. FINLAN, individually, and HEATHER WILDER, a/k/a Heather Hazel Adele Wilder Wills, individually,
Appellants.
DÍAZ, J. — Herman Sedillo sued Alex Finlan for negligence following a car accident. The jury found Finlan 80 percent at fault. The court awarded damages to Sedillo in the amount of over $1.8 million. The Finlan estate challenges the award, claiming several of the court’s evidentiary rulings were in error. 1 We hold that the court abused its discretion in admitting evidence of Finlan’s juvenile conviction and his invocation of his Fifth Amendment rights. We vacate the verdict
1 For clarity, we hereafter refer to Alex Finlan as Finlan and to the Finlan estate as “the estate.”
and judgment, and remand the matter to the court for a new trial on liability only.
I. BACKGROUND
In December 2017, Finlan, then 16, was driving a Chevrolet S10 pickup truck westbound on South Skagit Highway, at the same time Sedillo was driving a Ford Fusion eastbound on the same highway. The two cars collided head-on. The parties dispute whether Finlan veered into the eastbound lane or whether Sedillo veered into westbound lane. Sedillo told police that Finlan had veered into his lane. Finlan could not remember what had happened. Both drivers left the scene by ambulance with serious injuries.
A sheriff’s deputy inspected the scene and found marijuana in the truck that Finlan had been driving. Finlan later pled guilty in juvenile court to an offense related to the discovery of the marijuana.
Finlan sued Sedillo’s employer and the case settled for an undisclosed amount. In November 2020, Sedillo sued Finlan, claiming Finlan had negligently caused the accident. Finlan died in April 2022, of unrelated causes. Sedillo amended his complaint to sue Finlan’s estate.
The estate moved in limine in pertinent part to exclude from evidence all references to “Finlan possessing, using, or being under the influence of marijuana,” and to his “criminal case for possession of marijuana,” including his invocation of the Fifth Amendment rights in response to some related questions. The court denied the motions.
Trial commenced on March 3, 2025. Both parties presented expert witness testimony opining that the other party had veered into the wrong lane. The jury
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found Finlan 80 percent at fault for the collision. The estate timely appeals.
II. ANALYSIS
The estate claims that the court erred when it admitted evidence of Finlan’s “criminal case for possession of marijuana,” including his invocation of the Fifth Amendment rights. U.S. CONST. amend. V. The estate also assigns error to the court’s admission of evidence related to Finlan’s historic use of marijuana including at the time of the collision, an expert witness’s testimony thereto, and other rulings.
We agree with the estate that the court abused its discretion when it admitted evidence that Finlan (1) pled guilty to the possession of marijuana as a juvenile and (2) invoked the Fifth Amendment when questioned about whether he possessed and sold marijuana. Because these errors alone warrant reversal, we do not address the remaining assignments of error. A. Finlan’s Juvenile Conviction ER 609 governs impeachment, i.e., attacking the credibility of a witness, by evidence of the conviction of a crime. The general rule is that, for impeachment “in a criminal or civil case, evidence that the witness has been convicted of a crime shall be admitted . . . only if the crime (1) was punishable by . . . imprisonment in excess of 1 year . . ., and the court determines that the probative value of admitting this evidence outweighs the prejudice to the party against whom the evidence is offered, or (2) involved dishonesty or false statement, regardless of the punishment.” ER 609(a).
As to the former, “[e]vidence of prior felony convictions is generally inadmissible against a defendant because it is not relevant to the question of guilt
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yet very prejudicial, as it may lead the jury to believe the defendant has a propensity to commit crimes.” State v. Hardy, 133 Wn.2d 701, 706, 946 P.2d 1175 (1997). There is no evidence in the record that Finlan was convicted of a felony and, thus, ER 609(a)(1) does not justify the admission of Finlan’s conviction. 2 As to the latter, “[d]rug convictions are not crimes of ‘dishonesty or false statement’ like perjury or criminal fraud” and, thus, ER 609(a)(2) does not apply either. Id. at 707 (footnote omitted).
Juvenile adjudications, moreover, are “generally not admissible” pursuant to ER 609(d). There is no provision allowing such evidence in a civil case. In a criminal case, “[t]he court may . . . allow [such] evidence . . . of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.” Id.
Even in such circumstances, the rule requires “a positive showing that the prior juvenile record is necessary to determine guilt,” i.e., an “indication of special reasons favoring admissibility” overcoming the “the general presumption [] that juvenile adjudications are inadmissible.” State v. Gerard, 36 Wn. App. 7, 12, 671 P.2d 286 (1983).
In Gerard, the defendant/proponent of the evidence “did not give any reasons for admissibility beyond general impeachment of the witness’ credibility.”
2 Sedillo asked for this information in discovery, the estate objected and later
claimed it could not determine this information because Finlan’s juvenile file was sealed. Regardless, Sedillo brought no motion to compel or unseal the information, and there is no suggestion Finlan was convicted of a felony.
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Id. “The burden was on [the proponent] to present reasons other than impeachment to demonstrate that the evidence was ‘necessary for a fair determination’” of guilt. Id. (emphasis added) (quoting State ex rel. Carroll v. Junker, 79 Wn.2d 12, 20, 482 P.2d 775 (1971)).
We review ER 609 rulings for an abuse of discretion. State v. Bankston, 99 Wn. App. 266, 268, 992 P.2d 1041 (2000). A court abuses its discretion when a decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). While this standard “provides great deference to the trial court’s evidentiary rulings, it does not immunize them.” State v. Broussard, 25 Wn. App. 2d 781, 789, 525 P.3d 615 (2023).
After the collision, Finlan sued Sedillo’s employer, the United States Department of Agriculture, under the Federal Tort Claims Act, Title 28, chapter 171 (Sec. 2671 et seq.) Aug. 2, 1946, ch. 753, title IV, 60 Stat. 842, because Sedillo had been travelling for his work as a meat inspector at the time of the crash. The government deposed Finlan as part of the lawsuit. During the deposition, Finlan testified that he had been charged and pled guilty to some crime or offense related to the discovery of the marijuana in the truck at the time of the accident.
When Sedillo later sued Finlan, Sedillo deposed Finlan as well. In that second deposition, Finlan denied ever having been “charged with possession of more than 80 grams of marijuana, as a Class C felony,” or “charged with possession of any amount of marijuana with the intent to deliver and distribute, as a Class C felony.” He admitted to being charged with “a crime” and responded
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that he did not know what crime he had been charged with. But he later admitted in the same deposition that he had been charged as a juvenile with “possession of marijuana” arising out of, and less than a month after, the accident. 3 Again, the estate broadly moved to exclude evidence of his criminal case for marijuana possession and generally his criminal record. Sedillo argued to the trial court that Finlan had “opened the door” to have the conviction admitted because he gave inconsistent answers in his two depositions “by saying this wasn’t my marijuana in one deposition and in another deposition he admitted that it was his marijuana.”
The court agreed with Sedillo and admitted the guilty plea. It held, “The fact that he pled guilty to possession of marijuana is relevant for the jury to decide what, if any, impact it had on their decision as to credibility of a witness.” Later, the court held that, when a party gives “conflicting testimony under oath,” it is relevant for the jury to assess credibility.
Although it is true that conflicting testimony may help a jury assess a witness’s credibility, “evidence of a witness’ prior false statement is not always relevant, particularly when that evidence is unrelated to the issues in the case.” State v. Lee, 188 Wn.2d 473, 489, 396 P.3d 316 (2017). Facts are relevant if they have a tendency to make the existence of any consequential fact more or less probable. ER 401. A party may not attack a witness’s credibility “on facts not
3 Again, the record reflects that the juvenile record was sealed and there is no
further information in the record about the charge to which he pled. Thus, as the parties do, we simply refer to the offense as “possession of marijuana” or a marijuana-related offense.
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directly relevant to the trial issue.” State v. Aguirre, 168 Wn.2d 350, 362, 229 P.3d 669 (2010). A witness’s credibility may not be central if the party’s case theory is founded on evidence other than the witness’s testimony. Cf. State v. Hakimi, 124 Wn. App. 15, 25, 98 P.3d 809 (2004) (holding that a victim’s credibility is an “inevitable, central issue” in the absence of other witnesses to the alleged crime).
Here, both parties agree that the central issue in this case is which driver crossed the center line and why. Sedillo testified at trial that he remembered being in the right lane and seeing Finlan’s headlights veering toward him. And Sedillo’s witnesses testified that Finlan did so because he was under the influence of marijuana.
Finlan, in contrast, testified in both depositions that he did not remember the incident. The estate never asked the jury to determine whether Finlan’s account of the event was credible. Verbatim Rep. of Proc. (VRP) (Mar. 5, 2025) at 351 (“the evidence is not going to be a battle of credibility between Alex Finlan and Herman Sedillo”).
The estate instead relied on physical evidence and expert testimony to dispute Sedillo’s account. It framed the case as “Mr. Sedillo’s credibility versus the physical evidence.” It argued that the physical evidence demonstrated that Sedillo veered into Finlan’s lane, and it relied on expert testimony to support this argument. Thus, the jury had no reason to determine whether Finlan was testifying credibly about his own memories that evening and, thus, impeaching his testimony with this tangential evidence had low probative value for the jury. See Aguirre, 168
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Wn.2d at 362. 4 Moreover, even if Finlan’s credibility about his own memory that evening was generically relevant under ER 401, the inconsistency—identified by Sedillo and relied on by the court in its ruling—was about whether Finlan owned the marijuana in the truck. The inconsistency was not about his cognitive abilities or whether he was convicted for a crime as a juvenile. He had admitted in both depositions that he had been convicted of a marijuana-related offense in juvenile court. At most, the attack was merely “general impeachment of the witness’ credibility.” Gerard, 36 Wn. App. at 12. In turn, Sedillo did not meet his burden to show that the juvenile conviction was “necessary” or that there were any “special reasons favoring admissibility” beyond impeachment. Id.
In contrast, the admission of such evidence, under ER 609 generally, is “very prejudicial, as it may lead the jury to believe the defendant has a propensity to commit crimes.” Hardy, 133 Wn.2d at 706. We therefore hold that—even assuming without deciding that ER 609(d) may be invoked in civil cases—Sedillo did not overcome the presumption of exclusion of juvenile convictions and, thus, the court abused its discretion in admitting Finlan’s juvenile conviction.
4 Sedillo may have attempted to frame the case in part as a contest between his
own credibility and Finlan’s defense, including how believable some of his statements were. VRP (Mar. 12, 2025) at 695 (“Ultimately, you are judges of credibility—my client’s memory, decisions, life that he led, versus the other side of the equation. God rest his soul, but it’s not credible. Their whole case—from expert to memory to Fifth Amendment to planting pot—doesn’t make sense. It’s not credible.”). But a party may not misrepresent the other side’s argument by “effectively creating a straw man easily destroyed in the minds of the jury.” State v. Thierry, 190 Wn. App. 680, 694, 360 P.3d 940 (2015). Sedillo’s attempt to create such a straw man argument does not serve to make Finlan’s credibility about his memory that evening central to the case.
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B. Fifth Amendment Invocation The estate next argues that the court erred when it admitted Finlan’s invocation of the Fifth Amendment right during his deposition. We agree that this ruling was also an abuse of discretion.
When a witness in a civil suit invokes the Fifth Amendment privilege against self-incrimination, the invocation may be admitted and the jury “is entitled to draw an adverse inference from the refusal to testify.” King v. Olympic Pipeline Co., 104 Wn. App. 338, 355–56, 16 P.3d 45 (2000). However, before admitting the invocation, the trial court should balance the probative value with the resulting prejudice, as required by ER 403. Id. at 356. 5 ER 403 allows the court to exclude relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice.” The danger of unfair prejudice can exist even when the evidence at issue “is undeniably probative of a central issue in the case.” Carson v. Fine, 123 Wn.2d 206, 224, 867 P.2d 610 (1994). “‘When evidence is likely to stimulate an emotional response rather than a rational decision, a danger of unfair prejudice exists.’” Gerlach v. Cove Apts., LLC, 196 Wn.2d 111, 120, 471 P.3d 181 (2020) (quoting Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 671, 230 P.3d 583 (2010)). We review rulings on ER 403 for abuse of discretion. Carson, 123 Wn.2d at 226.
5 The estate also argues that the court erred when it instructed the jury that they
may infer from the invocation that “the requested information would have been unfavorable to the defendant.” “Failure to object to jury instructions waives objections on appeal.” Valdez-Zontek v. Eastmont Sch. Dist., 154 Wn. App. 147, 165, 225 P.3d 339 (2010). Since the estate did not object to the jury instruction, we review only whether the admission of the invocation violated ER 403.
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During his first deposition, Finlan invoked the Fifth Amendment right and declined to answer whether he owned the marijuana found in the car and whether he was selling marijuana. 6 The estate moved to exclude this invocation from evidence. The court denied the motion because “precedent allows” the jury in a civil suit to make an inference based on a Fifth Amendment invocation. The court did not perform any ER 403 balancing on the record.
Finlan’s invocation allowed the jury to infer that he possessed and sometimes sold marijuana. Whether he arguendo possessed and sold marijuana is a distinct issue from any alleged intoxication or impairment. See State v. Hettich, 70 Wn. App. 586, 592, 854 P.2d 1112 (1993) (holding that “the evidence of marijuana did not specify whether Smith was under its influence at the time of the accident. Its probative value was thus extremely limited”). We hold that Finlan’s invocation and the resulting inference have low probative value as to the central question of which driver crossed the center line to cause the collision.
As to the prejudicial effect, our Supreme Court has cautioned against admitting evidence of even “the general effects of high levels of intoxication” because they are “‘likely to evoke an emotional response from the jury rather than a rational decision.” Gerlach, 196 Wn.2d at 124 (quoting Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 671, 230 P.3d 583 (2010)). And, as another example,
6 The estate claims that Alex did not invoke his rights when asked about marijuana
use, only about selling and possessing marijuana. The estate misstates the facts. During his first deposition, Alex “took the Fifth” when asked about his possession of the marijuana. But during his second deposition, Alex asserted his Fifth Amendment rights when asked more broadly about previous marijuana use. However, because the estate only argues that the admission of the first invocation was in error, we limit our review to that invocation in the record.
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“‘[e]vidence of prior alcohol abuse has the potential to be very prejudicial.’” Coogan v. Borg-Warner Morse Tec Inc., 197 Wn.2d 790, 804, 490 P.3d 200 (2021) (quoting Coogan v. Borg-Warner Morse Tec Inc., No. 51253-0-II, slip op. at 20 (Wash. Ct. App. Feb. 19, 2020) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2051253-0- II%20Unpublished%20Opinion.pdf); Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 559, 815 P.2d 798 (1991) (holding that allowing cross-examination about marijuana and alcohol abuse is likely to have a prejudicial impact).
Here, by admitting Finlan’s Fifth Amendment invocation along with his juvenile conviction, the court allowed Sedillo to portray Finlan to the jury as a drug dealing criminal. VRP (Mar. 12, 2025) at 695 (Sedillo’s counsel urged the jury to consider “my client’s memory, decisions, life that he led, versus the other side of the equation.”). Such a portrayal could have caused the jury to reach a verdict based on their emotional reaction instead of determining who crossed the center line. See Gerlach, 196 Wn.2d at 124. The undue prejudice of Finlan’s invocation significantly outweighed the probative value. ER 403. Therefore, the court abused its discretion when it denied the estate’s motion. 7 Because the errors addressed above are grounds for reversal, we need not address any of the estate’s other assignments of error. Wash. State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 307, 174 P.3d 1142 (2007) (“Principles of
7 Sedillo does not argue these errors were harmless. “An erroneous evidentiary ruling is not grounds for reversal absent prejudicial error.” Cook v. Tarbert Logging, Inc., 190 Wn. App. 448, 474, 360 P.3d 855 (2015). We hold that it is reasonably probable that without the court’s errors, the jury may have reached a different verdict. See id.
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judicial restraint dictate that if resolution of an issue effectively disposes of a case, we should resolve the case on that basis without reaching any other issues that might be presented.”) (internal quotation marks omitted) (quoting Hayden v. Mut. of Enumclaw Ins. Co., 141 Wn.2d 55, 68, 1 P.3d 1167 (2000)).
We decline to reach whether the court erred when it (1) admitted evidence of Finlan’s marijuana use that day or previously, (2) allowed an expert to testify that Finlan’s intoxication caused the collision, (3) admitted evidence of Finlan’s conduct during his deposition, (4) allowed Sedillo to present two expert witnesses while only allowing the estate to present one. We also need not address the estate’s argument that the court should reverse under the cumulative error doctrine.
It is unclear how the parties will litigate these issues following these rulings, and how the court will resolve any further litigation on these issues, given the guidance provided herein. C. Costs Finally, the estate requests an award of costs. A party who substantially prevails on appeal is entitled to costs under RAP 14.2. The substantially prevailing party is determined by the outcome of the appeal. Hudson v. Hapner, 170 Wn.2d 22, 35, 239 P.3d 579 (2010) (holding that the appellant was entitled to costs incurred on appeal because they achieved reversal of the trial judgment and a remand for retrial). We therefore award costs on appeal to the estate, subject to compliance with RAP 14.4.
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III. CONCLUSION
The parties stipulate that the new trial should be limited to liability. We therefore vacate the judgment and verdict, and remand this matter for a new trial on liability only.
WE CONCUR: