IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87164-1-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
EDIN DERVISEVIC,
Appellant.
BIRK, J. — At a bench trial, the court found Edin Dervisevic guilty of four counts of violation of a court order with a domestic violence designation and one count of cyberstalking with a domestic violence designation. The court found that Dervisevic violated a court order on January 22, 2021, by calling Elmedina Poskovic on her phone. On appeal, Dervisevic argues the court erred in admitting a recording of a January 22 call because, in alleged violation of the Washington privacy act (WPA), ch. 9.73 RCW, the call was recorded by a police officer without either Dervisevic’s or Poskovic’s consent. Dervisevic also argues the court erred in admitting evidence of earlier contacts because, he argues, they were not admissible under ER 404(b) and were irrelevant. He argues that these errors establish cumulative error requiring reversal. We affirm.
I
The State charged Dervisevic with four counts of violation of a court order with a domestic violence designation for contact occurring January 10, 11, 12, and
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22, 2021, and one count of cyberstalking with a domestic violence designation for contacts within the same date range.
A
Before trial, Dervisevic moved to exclude the recording of a January 22 call as a violation of the WPA. He argued that none of the exceptions under RCW 9.73.030(2) apply and that Poskovic and the officer should have obtained consent from him before recording a private conversation. He argued that if the court agreed “with the clear error in this one-party consented recording,” then all the lay and police witness testimony from the conversation should be suppressed.
In Dervisevic’s motion to suppress the recording, he attached a transcript from an interview with the officer. In the interview, the officer stated, “A call came in from a number, and she pointed at the phone and said, this is him calling me. I—I don’t know how she knew that. But, she did answer the phone and put it on speakerphone. And then she just started speaking to him as if it were him.” The officer stated that he did not believe he began recording “until it was a little ways into the conversation. I wasn’t thinking of it.” The officer stated he did not let the caller know he was recording him.
The State argued the recording fell under an exception under RCW 9.73.030(2)(c), which permits one party to consent to recording for calls “which occur anonymously or repeatedly or at an extremely inconvenient hour.” It also argued that even if the court found the recording did not meet any exceptions, Poskovic should still be able to testify to the call’s contents because “there is no
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evidence to suggest that Ms. Poskovic was involved in the recording of the conversation.”
In the State’s response, the State attached the officer’s narrative from the initial case report:
While I was speaking with Poskovic, she received a call from the [206 number]. The caller [identification] stated the number belonged to “Travis Williams”. Poskovic stated it was Dervisevic calling her and answered the phone and placed the phone on speaker. As the conversation continued, I recorded the conversation with my department issued phone and the recording was later entered into evidence.
The court admitted a recording of the call under RCW 9.73.030(2)(c).
B
The State moved under ER 404(b) to admit evidence of Dervisevic’s contacts with Poskovic in May 2020. It argued contacts Dervisevic had made with Poskovic in May 2020 were admissible to show identity and a common scheme or plan.
The State attached an initial case report in which the responding officer stated Poskovic had received 62 calls between May 2 and May 3, 2020. The officer reported Poskovic received 11 voicemails and from those voicemails, Poskovic identified the caller as Dervisevic. The officer reported that when they listened to the voicemails, they heard the caller use derogatory language towards Poskovic and speak in another language before transitioning to English.
Dervisevic argued the contacts did not support either the knowledge or identity exceptions to ER 404(b). He argued that the contacts were not specific enough to support common scheme or plan because “this method, this procedure
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would be exactly how one would go about doing it, anyone.” He also argued that the messages being in a blend of English and Bosnian did not support admission of the evidence as common scheme or plan or identity.
In its oral ruling, the court concluded the probative value of the contacts outweighed the unfair prejudice and admitted the evidence as identity evidence. The order granting the State’s request to admit the evidence indicated Poskovic could testify to the contacts because it was evidence of proof of motive, opportunity, intent, preparation, plan, and identity.
C
At trial, Poskovic testified that she met Dervisevic in August 2015 through social media and shortly thereafter developed a romantic relationship. She testified it was a rocky relationship and that in October 2019, the two officially broke up. She testified that she and Dervisevic both spoke fluent Bosnian and English. A certified copy of a no-contact order admitted at trial indicated Dervisevic was restrained from contacting Poskovic beginning July 6, 2020 for two years.
Poskovic testified that in May 2020, she began receiving phone calls and messages from Dervisevic. She testified she received a voicemail in May 2020 and she recognized the voice as that of Dervisevic. She testified that she thought she received messages that were in English and Bosnian.
Officer Arthur Burke testified that on May 6, 2020, he responded to a call from Poskovic. While Poskovic was showing him her phone, she dialed one of the numbers that was in her call log. He testified that Poskovic immediately ended the call and that then her phone received a call. Poskovic handed the phone to Officer
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Burke, who answered it, and had a conversation with someone who identified themselves as “Edin [Dervisevic].”
Poskovic also testified that on January 22, 2021 she continued receiving messages that were similar to the messages she had been receiving since January 11, 2021, from numbers she did not know. She testified she thought she remembered calling law enforcement and remembered that an officer responded to her apartment. She testified that she did not remember which call she picked up in the officer’s presence, but she knew that a call was recorded when an officer was present during one of the incidents.
The court found Dervisevic guilty of all five counts. The court concluded that on January 22, 2021, Dervisevic violated the no-contact order restraining him by calling Poskovic. After denying Dervisevic’s motion for a new trial, the court sentenced Dervisevic to an exceptional downward sentence of 36 months on each count, to run concurrently, followed by 24 months in community custody.
Dervisevic appeals.
II
Dervisevic argues the trial court erred when it admitted a recording of a call made on January 22, 2021. We disagree.
The WPA broadly protects individuals’ privacy rights. State v. Roden, 179 Wn.2d 893, 898, 321 P.3d 1183 (2014). “It is one of the most restrictive electronic surveillance laws ever promulgated.” Id. The WPA “prohibits anyone not operating
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under a court order from intercepting or recording certain communications without consent of all parties.” Id. The act states,
Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:
(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.
RCW 9.73.030(1)(a). “Evidence obtained in violation of the act is inadmissible for any purpose at trial.” Roden, 179 Wn.2d at 899 (citing RCW 9.73.050).
We review a ruling to suppress evidence under the WPA de novo. State v.
Kipp, 179 Wn.2d 718, 729, 317 P.3d 1029 (2014) (“The determination of privacy is more akin to reviewing a conclusion of law than a fact.”). “Failure to suppress evidence obtained in violation of the act is prejudicial unless, within reasonable probability the erroneous admission of the evidence did not materially affect the outcome of the trial.” State v. Christensen, 153 Wn.2d 186, 200, 102 P.3d 789 (2004).
There are four prongs to analyze in determining alleged violations of the WPA. Roden, 179 Wn.2d at 899. “There must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication.” Id.
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“[I]t is not unlawful to record a communication on a device where the ‘consent of all the participants in the communication’ has been obtained.” State v. Townsend, 147 Wn.2d 666, 675, 57 P.3d 255 (2002) (quoting RCW 9.73.030(1)(a)). RCW 9.73.030(2) defines exceptions to the WPA that permit recordings of private communications where one party has consented:
Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.
“A party is deemed to have consented to a communication being recorded when another party has announced in an effective manner that the conversation would be recorded.” Townsend, 147 Wn.2d at 675. “In addition, a communicating party will be deemed to have consented to having [their] communication recorded when the party knows that the message will be recorded.” Id.
A
The State argues Dervisevic invited error by conceding in the trial court that Poskovic consented and by only challenging the applicability of the one-party consent exceptions.1 We disagree.
1 Dervisevic argues in reply the State is estopped from arguing Poskovic consented to the recording because he says it argued in its response to his motion to suppress that Poskovic did not consent. Because he raised this argument for the first time in reply, we do not consider it. See State v. Pervez, 15 Wn. App. 2d 265, 272 n.11, 478 P.3d 103 (2020).
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“The invited error doctrine precludes a criminal defendant from seeking appellate review of an error [they] helped create, even when the alleged error involves constitutional rights.” State v. Mercado, 181 Wn. App. 624, 629-30, 326 P.3d 154 (2014). “The doctrine of invited error prohibits a party from setting up an error at trial and then complaining of it on appeal.” Id. at 630. “To determine whether the invited error doctrine is applicable to a case, we may consider whether the [defendant] affirmatively assented to the error, materially contributed to it, or benefited from it.” Id. “To be invited, the error must be the result of an affirmative, knowing, and voluntary act.” Id. “The defendant must materially contribute to the error challenged on appeal by engaging in some type of affirmative action through which [they] knowingly and voluntarily set[] up the error.” Id. “The State bears the burden of proof on invited error.” Id.
Here, Dervisevic did not affirmatively assent to any error, materially contribute to it, or benefit from it. Dervisevic’s motion to suppress the recording argued against the one-party consent exceptions to RCW 9.73.030, but, while he did not explicitly argue Poskovic did not consent, he did not state Poskovic consented. Rather, Dervisevic’s motion to suppress indicated he anticipated the State’s argument centering on exceptions to RCW 9.73.030 and argued the narrow issue of whether exceptions applied because the State knew it did not have Dervisevic’s consent to the recording. Dervisevic moved to exclude the evidence, and did not invite error in its admission.
At the same time, the State never argued Poskovic consented or conceded that she did not consent to recording. The State argued there was “no evidence
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to suggest that Ms. Poskovic was involved in the recording,” and there was no evidence that she “told” the officer to start recording or “at what point” she became aware he was recording. In context, the State argued that even if the officer’s recording violated the WPA, Poskovic could still testify to her knowledge of the call because she did not participate in making the recording.
B
Dervisevic argues the State did not meet its burden to prove Poskovic impliedly consented. We disagree.
For the proposition that having a phone in one’s hand is not sufficient to support a conclusion a party knew they would be recorded, Dervisevic cites State v. Fields, 31 Wn. App. 2d 687, 714-15, 553 P.3d 71 (2024). In Fields, the State charged the defendant with rape in the second degree and moved to admit two recordings of conversations between the defendant and his wife, the woman he raped. Id. at 692-93. His wife—the recording party—conceded she did not announce she was recording the first conversation with the defendant and testified she had her phone with her most of the time. Id. at 709. The State argued the recording was permissible “because R.F. had her phone in her hand during the conversation and had previously told Fields she would record conversations she felt were getting ‘out of control.’ ” Id. at 713. Under RCW 9.73.030(3), the WPA permits “consent of the non-recording party to be inferred where one party has announced to all other parties in a reasonably effective manner that the conversation is being recorded as long as that announcement is included in the recording.” In Fields, this court concluded the recording did not meet the statutory
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requirements of RCW 9.73.030(3) because there was no announcement in the recording. 31 Wn. App. 2d at 713-14. The court rejected the State’s argument and reasoned that “notifying a party at an earlier point in time that you may record a later conversation based on your feelings about that conversation does not meet the requirements of the exception outlined by statute.” Id.
Fields is not analogous. First, Dervisevic and the State dispute the admissibility of the recording under RCW 9.73.030(2), which provides exceptions to the all party consent rule where one party has consented. Fields does not suggest the recording party needs to announce that the conversation will be recorded to support a one party consent exception.
Second, the factual background of Fields is distinguishable. In Fields, the defendant expressly stated he did not want to be recorded, and his wife continued to record. 31 Wn. App. 2d at 707-08. Here, Poskovic called law enforcement after she received several messages from Dervisevic to, apart from getting Dervisevic to stop contacting her, support a record of Dervisevic’s actions. She invited law enforcement to listen when she accepted the call and placed it on speaker phone. By reasonable inference, she must have observed the officer access his own phone given they were together at the time and, in the context of their interaction, the sole purpose of the officer’s accessing his own phone at that moment was to record. Poskovic’s actions support the trial court’s finding that she impliedly consented to the officer recording her conversation with Dervisevic.
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Because Dervisevic does not challenge on appeal whether the call met the anonymous or repeated call exception allowing one-party consent under RCW 9.73.030(2)(c), we conclude the trial court did not err in admitting the recording.
III
Dervisevic argues the court erred in admitting evidence that he called Poskovic in May 2020 in violation of a no-contact order. We disagree.
“Interpretation of an evidentiary rule is a question of law, which we review de novo.” State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007). “When the trial court has correctly interpreted the rule, we review the trial court’s decision to admit evidence under ER 404(b) for an abuse of discretion.” Id. “Discretion is abused if it is exercised on untenable grounds for untenable reasons.” State v. Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002).
“A trial court must always begin with the presumption that evidence of prior bad acts is inadmissible.” State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003).
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.
ER 404(b). “This prohibition encompasses not only prior bad acts and unpopular behavior but any evidence offered to ‘show the character of a person to prove the person acted in conformity’ with that character at the time of a crime.” Foxhoven, 161 Wn.2d at 175 (quoting State v. Everbodytalksabout, 145 Wn.2d 456, 466, 39 P.3d 294 (2002)). “ER 404(b) is not designed ‘to deprive the State of relevant
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evidence necessary to establish an essential element of its case,’ but rather to prevent the State from suggesting that a defendant is guilty because [they are] a criminal-type person who would be likely to commit the crime charged.” Id. (quoting State v. Lough, 125 Wn.2d 847, 859, 889 P.2d 487 (1995)).
Before admitting ER 404(b) evidence, a 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.”
Id. (quoting Thang, 145 Wn.2d at 642). This analysis must be conducted on the record. Id. Where evidence is admissible for a proper purpose, the party against whom the evidence is admitted is entitled, upon request, to a limiting instruction informing the jury that the evidence is to be used only for the proper purpose and not for the purpose of proving the character of a person in order to show that the person acted in conformity with that character. State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012).
“Erroneous admission of evidence in violation of ER 404(b) is analyzed under the nonconstitutional harmless error standard—that is, we ask whether there is a reasonable probability that, without the error, ‘the outcome of the trial would have been materially affected.’ ” State v. Gower, 179 Wn.2d 851, 854-55, 321 P.3d 1178 (2014) (internal quotation marks omitted) (quoting Gresham, 173 Wn.2d at 433).
Dervisevic argues the court erred in the third and fourth steps of the ER 404(b) analysis when it admitted the May 2020 contacts as similar enough to show
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identity or common scheme or plan. He argues the commonalities the court relied on—using software to call from different numbers, communicating in English and Bosnian, and shifts in tone of the messages—are not substantial.
“[A]dmission of evidence of a common scheme or plan requires substantial similarity between the prior bad acts and the charged crime.” DeVincentis, 150 Wn.2d at 21. “Such evidence is relevant when the existence of the crime is at issue.” Id. “Sufficient similarity is reached only when the trial court determines that the ‘various acts are naturally to be explained as caused by a general plan.’ ” Id. (quoting Lough, 125 Wn.2d at 860).
Here, the trial court could tenably conclude that the May 2020 contacts were admissible to show common scheme or plan. While Dervisevic challenges each individual aspect as being commonplace, substantial similarity between the May 2020 contacts and the January 2021 contacts exists when all three challenged similarities are taken together. An officer who investigated the May incidents testified that he counted what he believed to be 62 phone calls Poskovic received from unknown numbers in May. And in one hour alone in January, her call log showed she received 14 separate calls from unknown numbers and “Travis Williams.” Poskovic testified that the May 2020 contacts, including voicemail and messages, were both in Bosnian and English and that the content was the same as the January 2021 contacts. We cannot say the trial court abused its discretion in concluding there were substantial similarities between the May 2020 contacts
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and the January 2021 contacts and that the May 2020 contacts showed common scheme or plan.2
IV
Dervisevic additionally asserts cumulative error. “Under the cumulative error doctrine, a defendant may be entitled to a new trial when cumulative errors produce a trial that is fundamentally unfair.” State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012). Here, where the trial court did not err in admitting the recorded call and May 2020 contacts, Dervisevic fails to identify any error.
Affirmed.
WE CONCUR:
2 Because we affirm as to common scheme or plan, we do not reach Dervisevic’s argument the court erred in admitting the May 2020 contacts as identity evidence. See State v. Powell, 126 Wn.2d 244, 264, 893 P.2d 615 (1995) (“We will uphold a trial court’s decision to admit evidence of prior misconduct under ER 404(b) if one of its cited bases is justified.”).