IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 86178-6-I
Respondent,
v. UNPUBLISHED OPINION
DOMINIC ANTONIO ENGLAND,
Appellant.
BOWMAN, J. — A jury convicted Dominic Antonio England of unlawful
possession of payment instruments. England appeals, arguing that the trial court
erred by denying his motion to suppress evidence because he was unlawfully
seized and by admitting evidence of his prior convictions for financial crimes in
violation of ER 404(b). We reverse and remand for a new trial.
FACTS
On September 20, 2020, a Holiday Inn employee reported to the Puyallup
Police Department that a person was trespassing in the hotel parking lot. Officer
Nathan Jendrick responded and found a man sleeping in a car. The car was
running, and there was a beer can outside the driver’s side door. Officer
Jendrick approached the car and tried to wake the man, but he was
unresponsive. Suspecting the man may be in physical control of the car while
impaired, Officer Jendrick called Officer Benjamin Timbs to investigate.
While Officer Jendrick waited for Officer Timbs to arrive, he looked
through the car windows with his flashlight. Officer Jendrick “noticed some No. 86178-6-I/2
notebook paper and . . . what appeared to be credit card numbers sitting on the
back[ ]seat.” The papers had 16-digit numbers, broken into four sets of 4
numbers, like those on a credit card. They also listed what appeared to Officer
Jendrick to be expiration dates.
When Officer Timbs arrived, he woke the man, and the officers identified
him as England. While Officer Timbs administered field sobriety tests, Officer
Jendrick conducted a records check and found England had an outstanding
felony warrant. Officer Jendrick also learned that England had prior identity theft
and “fraud-related criminal convictions.” When Officer Timbs finished his
investigation, he told Officer Jendrick that he was not going to arrest England for
physical control of a vehicle while impaired.
Based on the warrant and the possible fraudulent credit card numbers,
Officer Jendrick continued to detain England at his patrol car. Officer Jendrick
read England his Miranda1 rights and asked about the papers in the back seat of
the car. At first, England denied knowing about the papers. But England agreed
that Officer Jendrick could get the documents from the car to show him. After
Officer Jendrick showed England the papers, England explained that he
borrowed them from a friend and did not know what they meant.
Officer Jendrick arrested England for the outstanding warrant. During a
search of England’s wallet, officers found a credit card and a debit card that did
not belong to him and two EBT2 cards without cardholder names. The State
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 2 Electronic benefits transfer.
2 No. 86178-6-I/3
charged England with one count of second degree identity theft, one count of
possessing stolen property in the second degree, one count of resisting arrest,3
and one count of unlawful possession of payment instruments.
Before trial, England moved to suppress the documents with the alleged
credit card numbers that Officer Jendrick obtained in the search of the car. He
argued that Officer Jendrick did not have reasonable suspicion to detain him to
investigate the documents, vitiating his consent to search the car. The trial court
denied England’s motion.4
After the suppression hearing, the State dismissed the identity theft and
possession of stolen property charges.5 England then pleaded guilty to the count
of resisting arrest. The parties proceeded to a jury trial on the count of unlawful
possession of payment instruments.
Before trial, the State notified England that it intended to offer several of
his prior convictions for financial crimes to show intent in the current charge
under ER 404(b). The State sought to admit a January 29, 2014 conviction for
identity theft in the second degree. In that case, officers found England in
possession of another person’s debit card, Social Security card, and driver’s
license. And the State sought to admit a December 10, 2015 conviction for two
3 The State charged England with resisting arrest because he tried to run when Officer Jendrick arrested him. 4 The trial court did, however, suppress a notebook Officer Jendrick found in the car that contained another person’s phone number, birth date, Social Security number, driver’s license number, “phone code,” bank personal identification number, bank code- word, and what looked like a credit card number. The court concluded England consented to the search of only the loose documents visible in the back seat of the car, not the contents of the notebook. 5 Both counts related to the information discovered in the notebook.
3 No. 86178-6-I/4
counts of attempted forgery, reduced from charges of identity theft in the second
degree and unlawful possession of payment instruments. In that case, police
found England in possession of three checks belonging to someone else.6 The
State argued that England’s “prior convictions for identical crimes with identical
requirements regarding intent show that [England] intended to use the fraudulent
material for criminal activity.” England objected, arguing that the prior convictions
were merely propensity evidence and highly prejudicial.
The court found the prior convictions admissible under ER 404(b). It
reasoned that because the State must show England possessed payment
instruments with the intent to commit theft, forgery, or identify theft,7 England’s
prior convictions were relevant and probative because they tended to show that
intent. The court also concluded that any danger of unfair prejudice did not
substantially outweigh the probative value of the evidence.8
At trial, the State called Greg Reiber, a financial crimes detective.
Detective Reiber testified about his experience investigating fraud. He testified
that two of the cards in England’s wallet were inscribed with other people’s
names, but he could not match those names to any report of lost or stolen
6 The State also identified a February 10, 2015 conviction for first degree identity theft and unlawful possession of payment instruments. But at the suppression hearing, the State did not offer this conviction, and the court did not rule on its admissibility. 7 Under RCW 9A.56.320(2)(a)(ii), a person is guilty of unlawful possession of payment instruments if he possesses payment instruments “[i]n the name of a fictitious person or entity, or with a fictitious routing number or account number of a person or entity, with intent to use the payment instruments to commit theft, forgery, or identity theft. 8 The State also sought to admit the prior convictions to rebut any argument of unwitting possession of the payment instruments. But the court rejected that argument because England said he did not intend to defend the charge on that basis.
4 No. 86178-6-I/5
property in Pierce County. Detective Reiber testified that the debit card had its
account number scratched off or blacked out. He explained that such an altered
debit or credit card suggests fraud because people etch new names and
numbers onto them. That is, people use “a blank card to create a new card.”
Detective Reiber testified that he has encountered lists of apparent credit
card numbers and expiration dates before, which also suggests fraud. He
explained that because Mastercard and Visa bank cards start with the same four
numbers, people will try to “come up with a valid credit card number just by
process of elimination.” So, “[i]f you’re able to obtain a valid credit card number
and you can superimpose that number onto a card with your name on it, you
could then access that account at a store or business.”
Detective Reiber also testified about England’s prior convictions. Before
he testified, the court read for the jury a limiting instruction:
“Certain evidence has been admitted in this case for only a limited purpose. This evidence consists of prior misconduct and may be considered by you only for the purpose of intent. You may not consider it for any other purpose.”[9]
Detective Reiber then read to the jury part of the affidavit of probable
cause for England’s December 10, 2015 conviction for two counts of attempted
forgery, reduced from charges of identity theft in the second degree and unlawful
possession of payment instruments:
“That in Pierce County, Washington on or about the 2nd day of August 2015, the defendant, Dominic Antonio England, did commit identity theft in the second degree and unlawful possession of payment instruments. Inside of the defendant’s wallet were three checks in [another person’s] name . . . . The defendant told police
9 The trial court similarly instructed the jury before closing arguments.
5 No. 86178-6-I/6
that [the victim] had given him the checks. [The victim] was contacted and stated she did not give the defendant the checks and that she was missing two whole checkbooks.”
Detective Reiber also read to the jury part of England’s 2014 guilty plea to
identity theft that said, “ ‘I possessed financial information of another person with
intent to commit a crime, and I did not obtain anything of value.’ ”
During closing, the State argued that England’s prior convictions “show his
intent in this case to take that information, those fictitious numbers, and generate
new methods or a new capability to commit fraud.” The jury convicted England
of unlawful possession of payment instruments. The court sentenced England to
six months of electronic home monitoring.
England appeals.
ANALYSIS
England argues that the trial court erred by denying his motion to
suppress evidence because he was unlawfully seized and by admitting evidence
of his prior convictions for financial crimes in violation of ER 404(b).
1. Unlawful Seizure
England argues that the court erred by denying his motion to suppress
documents Officer Jendrick found in the back seat of the car. According to
England, Officer Jendrick unlawfully extended the scope of his seizure beyond
the investigation for physical control of a motor vehicle, which vitiated any
consent to search the vehicle. The State contends Officer Jendrick lawfully
extended the seizure to investigate whether England was engaged in fraud or
identity theft. We agree with the State.
6 No. 86178-6-I/7
We review a trial court’s denial of a motion to suppress to determine if
substantial evidence supports the challenged findings of fact and whether those
findings support the conclusions of law. State v. Campbell, 166 Wn. App. 464,
469, 272 P.3d 859 (2011). “ ‘Evidence is substantial when it is enough to
persuade a fair-minded person of the truth of the stated premise.’ ” State v.
Z.U.E., 178 Wn. App. 769, 778, 315 P.3d 1158 (2014)10 (quoting State v. Garvin,
166 Wn.2d 242, 249, 207 P.3d 1266 (2009)), aff’d, 183 Wn.2d 610, 352 P.3d 796
(2015). Unchallenged findings of fact are verities on appeal. Campbell, 166 Wn.
App. at 469. We review de novo the trial court’s legal conclusions resulting from
a suppression hearing. Id.
An investigative detention amounts to a seizure, so it must “be reasonable
under the Fourth Amendment” to the United States Constitution. State v.
Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986) (citing Terry v. Ohio, 392 U.S. 1,
88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). A seizure under Terry is reasonable “if
the investigating officer has ‘a reasonable and articulable suspicion that the
individual is involved in criminal activity.’ ” State v. Howerton, 187 Wn. App. 357,
364, 348 P.3d 781 (2015) (quoting State v. Walker, 66 Wn. App. 622, 626, 834
P.2d 41 (1992), abrogated on other grounds by State v. Hill, 123 Wn.2d 641, 870
P.2d 313 (1994)).
A “reasonable suspicion” is the “substantial possibility that criminal
conduct has occurred or is about to occur.” Kennedy, 107 Wn.2d at 6. “A
reasonable suspicion can arise from information that is less reliable than that
10 Internal quotation marks omitted.
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required to establish probable cause.” Howerton, 187 Wn. App. at 365. But it
“must ‘be grounded in specific and articulable facts’ ” and cannot be predicated
on speculation or a mere hunch. State v. Johnson, 8 Wn. App. 2d 728, 746, 440
P.3d 1032 (2019)11 (quoting Z.U.E., 183 Wn.2d at 617). And “[t]he available
facts must substantiate more than a mere generalized suspicion that the person
detained is ‘up to no good’; the facts must connect the particular person to the
particular crime that the officer seeks to investigate.” Z.U.E., 183 Wn.2d at 618
(quoting State v. Bliss, 153 Wn. App. 197, 204, 222 P.3d 107 (2009)).
A seizure under Terry is limited in scope and duration to fulfilling its
investigative purpose. State v. Acrey. 148 Wn.2d 738, 747, 64 P.3d 594 (2003).
If the results of the initial seizure dispel an officer’s suspicions, then the officer
must end the detention. Id. But if the officer’s initial suspicions “are confirmed or
are further aroused, the scope of the seizure may be extended and its duration
may be prolonged.” Id. We review the reasonableness of the police action in
light of the particular circumstances of each case. Z.U.E., 183 Wn.2d at 618.
Officer Jendrick initially seized England to investigate whether he was in
physical control of a motor vehicle while impaired. Officer Timbs dispelled that
suspicion after administering field tests. But, in the meantime, Officer Jendrick
saw what appeared to be lists of credit card numbers in the back seat of
England’s car. He described them as “lots of 16-digit numbers” formatted in
groups of four “in the same way they’d likely be printed on a credit card.” The
lists also had what appeared to be expiration dates—two 2-digit numbers with the
11 Internal quotation marks omitted.
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abbreviation “EX.” Officer Jendrick also learned that England had prior fraud and
identity theft convictions.
These specific and articulable facts supported Officer Jendrick’s suspicion
that England may be engaged in fraudulent behavior, and it was reasonable to
extend England’s seizure under Terry to further investigate. As such, England
was lawfully seized at the time he consented to the search of his car, so his
consent was not vitiated.12 See State v. Santacruz, 132 Wn. App. 615, 620, 133
P.3d 484 (2006) (defendant’s consent to search was not vitiated by officers
expanding a Terry stop where the officers had an articulable suspicion of another
crime).
2. ER 404(b)
England argues that the trial court erred by admitting evidence of his prior
convictions. We agree.
We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119
(2003). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds or reasons. State v. Taylor, 193
Wn.2d 691, 697, 444 P.3d 1194 (2019).
Under ER 404(b), 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.” The rule categorically bars admission of evidence to prove
12 We note that Officer Jendrick also detained England under a valid Department of Corrections arrest warrant at the time he consented to the search of his car. Because neither party analyzes whether that detention is an independent basis to affirm the trial court’s ruling, we do not do so here.
9 No. 86178-6-I/10
a person’s character and show that the person acted in conformity with that
character. State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012).
While ER 404(b) forbids evidence of prior bad acts to show a defendant’s
propensity to commit a crime, it allows admission of such evidence for other
limited purposes. State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999).
For example, evidence of other crimes, wrongs, or acts may be admissible to
show motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. ER 404(b). Still, evidence of prior misconduct is
presumptively inadmissible. Gresham, 173 Wn.2d at 421. And the proponent of
the evidence must show a proper purpose. Id. at 420 (citing DeVincentis, 150
Wn.2d at 17).
In assessing whether to admit evidence of a person’s prior misconduct,
“the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.”[13]
Gresham, 173 Wn.2d at 421 (quoting State v. Vy Thong, 145 Wn.2d 630, 642, 41
P.3d 1159 (2002)). The court should resolve doubtful cases in favor of the
defendant. State v. Smith, 106 Wn.2d 772, 776, 725 P.2d 951 (1986).
Here, the State proffered England’s prior convictions as evidence of his
intent to commit the current offense. But asserting that evidence “ ‘goes to
13 England also argues the court erred by concluding the prejudicial effect of his convictions did not substantially outweigh their probative value. Because we otherwise reverse, we do not reach that argument.
10 No. 86178-6-I/11
intent’ ” is not a magic incantation that will “ ‘open wide the courtroom doors’ ” to
all prior-act evidence. Wade, 98 Wn. App. at 334-35 (quoting State v. Saltarelli,
98 Wn.2d 358, 364, 655 P.2d 697 (1982)). If the State offers evidence of prior
acts to show intent, it must present a logical theory “other than propensity” that
shows how the prior acts connect to the intent required to commit the charged
offense. Id. at 334.
“To use prior acts for a non-propensity based theory, there must be some
similarity among the facts of the acts themselves.” Wade, 98 Wn. App. at 335.
Otherwise, the only relevance is the inference that “once a criminal always a
criminal.” Id. at 336. So, it must be “the facts of the prior acts, not the propensity
of the actor, that establish the permissive inference admissible under ER 404(b).”
Id. “Use of prior acts to prove intent is generally based on propensity when the
only commonality between the prior acts and the charged act is the defendant.”
Id. at 335.
In Wade, Division Two of this court rejected the admission of prior-act
evidence to prove intent where the State charged the defendant with possession
with intent to deliver cocaine after he dropped a baggie of drugs and ran from a
police officer. 98 Wn. App. at 332-37. There, the trial court admitted evidence
under ER 404(b) of the defendant’s prior conviction for possession with intent to
deliver cocaine and a pending charge alleging the same conduct. Id. at 332.
Each of those cases involved a hand-to-hand cocaine transaction. Id. The State
argued the evidence showed the defendant’s intent to sell cocaine in the case at
issue. Id. The trial court admitted the evidence. Id. But Division Two reversed,
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holding that the facts of the charged offense differed significantly from the facts of
the previous offenses, so the prior acts showed only an inference of the
defendant’s propensity to possess and sell cocaine. Id. at 333-37 (“Using [the
defendant]’s prior bad acts to prove current criminal intent . . . is tantamount to
inviting the following inference: Because [the defendant] had the same intent to
distribute drugs previously, he must therefore possess the same intent now.”).
This case is like Wade. The trial court concluded that England’s prior
convictions for financial crimes were probative of England’s intent in the charged
case because they showed that England knew how to use the information and
bank cards he possessed to commit identify theft and fraud. But the State
offered no facts from the prior convictions showing that England had modified
bank cards to commit fraud or identity theft. Indeed, Detective Reiber told the
jury only that in 2015, England was convicted for possessing stolen checks, and
that in 2014, he was convicted for possessing “ ‘financial information of another
person with intent to commit a crime.’ ”14 Those statements show no factual
nexus between the prior convictions and the charged crime. The only similarity
between them is England. As a result, the evidence showed only that England
has a propensity to commit financial crimes. The trial court erred by admitting
the prior convictions under ER 404(b).
When a court erroneously admits evidence in violation of ER 404(b), “we
apply the nonconstitutional harmless error standard.” State v. Gunderson, 181
14 While the 2014 conviction included possessing another person’s debit card, Social Security card, and driver’s license, Detective Reiber did not tell the jury about those facts.
12 No. 86178-6-I/13
Wn.2d 916, 926, 337 P.3d 1090 (2014). “This requires us to decide whether
‘within reasonable probabilities, had the error not occurred, the outcome of the
trial would have been materially affected.’ ” Id.15 (quoting Gresham, 173 Wn.2d
at 433). If the improperly admitted evidence is of little significance in light of the
evidence as a whole, the error is harmless. State v. Fuller, 169 Wn. App. 797,
831, 282 P.3d 126 (2012).
To convict England of unlawful possession of payment instruments, the
State had to show that England possessed “two or more . . . payment
instruments . . . with a fictitious . . . account number of a person or entity, with
intent to commit theft, forgery, or identity theft.” RCW 9A.56.320(2)(a)(ii). The
court instructed the jury that “[a] person acts with intent” to commit unlawful
possession of payment instruments “when acting with the objective or purpose to
accomplish a result that constitutes a crime.”
Evidence adduced at trial showed that England possessed a list of credit
card numbers and several cards that did not belong to him, including one with the
numbers scratched off. Testimony from Detective Reiber showed how England
could have used those numbers and the cards to commit fraud or identity theft.
From that testimony alone, the jury could have inferred that England possessed
those items with criminal intent. But England’s convictions of other financial
crimes involving allegations of dishonesty amount to significant and powerful
propensity evidence. The convictions sent the message that England is a
dishonest person who committed similar crimes in the past, so he likely
15 Internal quotation marks omitted.
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committed them again. Indeed, in closing argument, the prosecutor told the jury
to remember England’s prior convictions when considering intent because they
“show his intent in this case to take that information, those fictitious numbers, and
generate new methods or a new capability to commit fraud.” And the trial court
twice instructed the jury to consider the erroneously admitted evidence “for the
purpose of intent.”16 Under these circumstances, it is reasonably probable that
the error materially affected the outcome of England’s trial.
We conclude that the trial court properly denied England’s motion to
suppress the documents found in the car because he was lawfully seized at the
time he consented to the search. But the court erred by admitting his prior
convictions under ER 404(b), and the error was not harmless. We reverse and
remand for a new trial.
WE CONCUR:
We presume that the jury followed the court’s instructions. State v. 16
Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008).