State Of Washington v. Jay Maria Christensen

• Court: Court of Appeals of Washington
• Decided: November 23, 2020
• Docket: 81838-4
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 81838-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JAY MARIA CHRISTENSEN,

Appellant.

APPELWICK, J. — Christensen challenges multiple convictions stemming

from two robberies. He argues the State did not prove harassment beyond a

reasonable doubt. He also argues the trial court erred in admitting evidence of his

past drug use. He further argues the prosecutor elicited impermissible testimony

related to uncharged robberies. He argues the prosecutor rearraigned him with

additional charges in retaliation for him seeking trial, tampered with a witness, and

elicited false testimony. He argues evidence should have been suppressed due

to chain of custody issues. We affirm.

FACTS

On September 15, 2016, a man robbed a Shell gas station in Gig Harbor

with a short-barreled shotgun. The man was wearing a red and black jacket,

athletic shoes, and had a blue bandana covering his face. He wore at least one

blue glove, apparently made of a latex-like material. The man demanded money

from the register, placed the money in his pocket, and left the store. The suspect No. 81838-4-I/2

had arrived in a tan sedan with what appears to be blue tape covering the license

plate. The car appeared to have a handicapped placard handing from the rearview

mirror. Police later recovered a ball of blue tape from the scene. A latent

fingerprint was recovered from the tape. Investigators determined the print

matched prints from Jay Christensen.

On October 19, 2016, Christensen got a call from a friend who was at a

local Denny’s restaurant informing him that the cash register was full and there

were very few people in the restaurant. Christensen got Steven Sommer, who

lived in a trailer on the same property as Christensen, to drive him to the Denny’s.

Sommer claims that Christensen asked him for a ride to get cigarettes, but

once they were in the truck, Christensen hit him with a shotgun and forced him to

drive to the Denny’s. Christensen’s girlfriend Sandra Whitehead, who also lived at

the property, testified that Sommer willingly agreed to drive Christensen to the

Denny’s so he could rob the restaurant.

Christensen arrived at the Denny’s and entered the store with a short-

barreled shotgun. He was wearing a black jacket and had a white bandana

covering his face. He approached the clerk at the register and demanded money

from the till and valuables from people in the restaurant. The clerk refused to take

belongings from restaurant patrons, instead proceeded to try and open the till. The

clerk’s hands were shaking so she had trouble opening the till. Christensen

responded by counting down from 10 and telling the clerk he would kill her and

would start killing Denny’s customers.

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Two patrons sitting at a table nearby witnessed the robbery. The two moved

so as not to be in Christensen’s line of sight because they realized a robbery was

taking place. They told a cook to call 911. One patron testified that she heard

Christensen tell the clerk that he would start killing people if he didn’t get money.

She testified that they saw Christensen had a gun and decided to “get out of there”

because “it wasn’t worth [their] life.” The two eventually hid in a closet until police

arrived.

Once the clerk opened the register, Christensen took money and left the

restaurant. He got into the passenger side of the waiting truck and drove away.

Police responded to a call of an armed robbery at the Denny’s. They

observed a truck leaving the area. Officers pursued the truck. After some pursuit,

the truck crashed into a cement pillar.

Officers then pinned the vehicle against the pillar to prevent its escape.

Officers yelled commands to the truck’s occupants to put their hands up and drop

any weapons. The driver attempted to comply with these demands, but the

passenger was grabbing the driver and pushing him around in his seat and

screaming at him. Officers saw the passenger holding a gun and pointing it at the

driver. An officer then shot the passenger in the head. The passenger survived

the gunshot wound and was taken to the hospital for care. Officers were later able

to identify Christensen as the passenger. Sommer testified to being the driver. He

testified that Christensen forced him to flee the police but that he had intentionally

crashed to end the chase.

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Police conducted a search of Christensen’s trailer. They recovered shoes

similar to those worn by the robber of the Shell station. They also recovered a box

of blue latex gloves similar to those worn by the Shell robber, a blue bandana

similar to that worn by the Shell robber, and shotgun shells. They also discovered

a tan sedan with a handicapped parking placard on the property, similar to the one

used in the Shell robbery. Police found blue masking tape in the trunk of the car.

The State charged Christensen with two counts of robbery in the first

degree, two counts of unlawful possession of a firearm, two counts of unlawful

possession of a short barreled shotgun, two counts of harassment, kidnapping in

the first degree, attempting to elude a police vehicle, assault, and obstructing a law

enforcement officer. A jury found him guilty on all counts except one harassment

count.

Christensen appeals.

DISCUSSION

Christensen makes eight arguments: the first three in his opening brief and

the remaining five in his statement of additional grounds. First, he argues the State

failed to prove its claim of harassment of Denny’s customers beyond a reasonable

doubt. Second, he argues that the trial court improperly admitted evidence of his

past drug use. Third, he argues that the trial court erred in allowing the State to

elicit testimony concerning uncharged robberies. Fourth, he argues that the State

vindictively rearraigned him with additional charges in retaliation for his choosing

to go to trial. Fifth, he argues the State committed misconduct by intimidating

Whitehead, a witness in the case. Sixth, he argues the State elicited false

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testimony from Steve Sommer. Seventh, he argues the trial court improperly

allowed evidence to be admitted that was improperly collected and had a broken

chain of custody. Last, he argues that cumulative error deprived him of his right to

a fair trial.

I. Substantial Evidence

Christensen argues that the State failed to prove that he harassed Denny’s

customers other than the clerk. To prove this charge, the State needed to prove

that Christensen knowingly threatened to injure a person in Denny’s without lawful

authority, and that the person was placed in reasonable fear that the threat would

be carried out. RCW 9A.46.020(1). Christensen argues that the State failed to

prove that any patron who heard Christensen’s threat was actually in fear that he

would carry it out.

Evidence is sufficient to support a conviction if, viewed in the light most

favorable to the prosecution, it permits any rational trier of fact to find the essential

elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d

192, 201, 829 P.2d 1068 (1992). Such a challenge admits the truth of the State’s

evidence and all inferences that can reasonably be drawn therefrom. Id. All

reasonable inferences from the evidence must be drawn in favor of the State and

interpreted most strongly against the defendant. Id.

Here, a Denny’s patron testified that she overheard Christensen’s threat to

kill people in the restaurant. She testified that she moved because “it wasn’t worth

[her] life.” She further testified that she hid in a closet until police arrived. That the

patron was afraid for her life is a reasonable inference that must be drawn and

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interpreted most strongly against Christensen. A rational trier of fact could easily

conclude that the patron was afraid for her life.

Christensen’s challenge is limited to whether the patron was placed in fear.

His challenge fails.

II. Evidentiary Rulings

Christensen argues the trial court erred in admitting evidence of his drug

use. The State argues the evidence was permissible to establish motive and to

impeach the credibility of Whitehead, whom it argues was likely to testify favorably

to Christensen because she felt guilty for introducing him to heroin. Christensen

also argues the State impermissibly elicited testimony regarding uncharged

robberies.

Evidence of prior bad acts is inadmissible to prove propensity to commit

other bad acts. ER 404(b). It may, however, be admissible for other purposes,

such as to show motive. ER 404(b). Evidence of prior bad acts is admissible if its

probative value is not substantially outweighed by the danger of unfair prejudice.

ER 403. We review a trial court’s decision on the admissibility of evidence for

abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).

A trial court abuses its discretion if its decision is manifestly unreasonable or is

based on untenable grounds or reasons. Id.

The trial court here found that evidence of Christensen’s drug use was

probative because it tended to show his motive for committing the robberies.

Whitehead testified that she had introduced him to heroin. She testified that her

and Christensen’s drug habit cost about $200 per week. She testified that they

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spent about $300 per month on rent and had additional food expenses. She

testified that both she and Christensen had been laid off and were receiving

unemployment benefits. But, she testified that they were not experiencing financial

hardship. However, she earlier told a detective that the two were spending all their

money on heroin.

Christensen argues that there was ample evidence in the record of his

financial hardship without referring to their heroin use. But, Whitehead denied this

so there was also evidence that they were not experiencing financial hardship. In

light of Whitehead’s denial that she and Christensen were experiencing financial

hardship, evidence that the two were spending $200 per week on heroin was

probative of their financial troubles. And, it is reasonable to believe that

Whitehead, having introduced Christensen to heroin, might be motivated to testify

in a way that was more favorable to him. While there is undeniably some prejudice

associated with drug use, the trial court mitigated this by instructing the jury to

consider the evidence for only motive and Whitehead’s potential bias. We

therefore find that the trial court’s decision was not manifestly unreasonable and

was not an abuse of discretion.

Christensen also claims that the prosecution impermissibly elicited

testimony that he committed uncharged robberies. The State questioned

Whitehead about a statement from her that the two argued about Christensen’s

robberies. Christensen argues that the reference to multiple robberies implied that

there were robberies that had not been charged. But, Christensen was charged

with multiple robberies in this case. Therefore, in the light most favorable to the

7 No. 81838-4-I/8

state, this testimony is most reasonably understood as referring to those robberies

that he was charged with. No improper testimony was elicited.

III. Prosecutorial Vindictiveness

Christensen argues the prosecutor vindictively rearraigned him with

additional charges in retaliation for him exercising his right to go to trial. He argues

this is so because the prosecutor brought several additional charges after he

rejected a plea deal. Prosecutors may not punish the defendant with additional

charges solely for exercising their right to trial. See United States v. Goodwin, 457

U.S. 368, 372, 102 S. Ct. 2485, 73 L. Ed .2d 74 (1982) (prosecutors may not punish

defendants for exercising their rights). However, we do not presume a

prosecutor’s additional charges are vindictive absent any evidence of

vindictiveness. See id. at 380-81. This is in part because the prosecutor may

discover additional information that suggests a basis for further charges prior to

trial. Id. at 381.

Such was the case here. Christensen acknowledges that the additional

charges in this case were precipitated by Sommer agreeing to testify against

Christensen. This cooperation enabled the prosecution to charge several crimes

that would have previously been difficult to prove, such as the kidnapping of

Sommer.

Not all the additional charges can be traced to Sommer’s cooperation. For

example, the State added two charges for unlawful possession of a short barrel

shotgun. But, Christensen has not presented any evidence that the prosecutor

brought those charges vindictively. He argues that we should presume

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vindictiveness because the additional charges were brought after failed plea

negotiations. The Supreme Court has directed caution in applying such a

presumption in the absence of evidence. Id. at 381.

We reject Christensen’s claim because he has shown no evidence of actual

vindictiveness and because legitimate reasons for additional charges can be

shown from the record.

IV. Prosecutorial Misconduct

Christensen argues that the prosecutor committed misconduct by

tampering with Whitehead’s testimony and accepting false testimony from

Christensen argues that the prosecutor tampered with Whitehead’s

testimony by playing recordings of Christensen’s jail calls with another woman and

asking if she was sure that she was Christensen’s girlfriend. It was Christensen

who elicited testimony from Whitehead regarding the interaction. He claims this

was done to influence Whitehead to change her testimony. But, Christensen does

not claim that the prosecutor ever asked Whitehead to change her testimony. The

identity of the woman on the calls was of legitimate interest to prosecutors.

Whether Whitehead was protecting Christensen due to her relationship with him

was of legitimate interest to the prosecution. It was reasonable for the prosecutor

to ask Whitehead about the calls. Christensen cites to no authority that supports

the proposition that a legitimate line of questioning can be considered prosecutorial

misconduct.

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Christensen further argues that the prosecution elicited false testimony from

Sommer. He offers only conflicting testimony from Whitehead, his own bare

assertion, and the fact that Sommer was initially charged in the robberies before

agreeing to cooperate with the State, to prove that the testimony is false.

Christensen has the burden to prove the testimony was actually false. See United

States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). He has not met that

burden.

V. Chain of Custody

Christensen argues that the ball of blue tape recovered from the Shell gas

station should not have been admitted because of issues with the chain of custody

of that evidence. He points out that the officer who collected the tape claimed to

have left his glove in the bag with it, but subsequent handlers of the evidence

reported no glove. He takes issue with improper recording of dates on the

evidence log and discrepancies with the memory of those who handled and

collected the evidence.

Minor discrepancies and uncertainty on the part of witnesses generally go

to the weight of evidence, not admissibility. State v. Campbell, 103 Wn.2d 1, 21,

691 P.2d 929 (1984). The identity and condition of evidence are always subject

to rebuttal, and the jury is free to disregard evidence if it finds that it was not

properly identified or there has been a change to its character. Id. The trial court

has a wide latitude of discretion in determining admissibility, which will not be

disturbed absent clear abuse. Id.

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Christensen concedes that he was permitted to elicit testimony regarding

issues with the chain of custody and condition of the evidence. The trial court

therefore properly allowed the jury to weigh the evidence it needed to disregard

the evidence if it so chose. It did not abuse its discretion in admitting the evidence.

VI. Cumulative Error

Christensen argues that cumulative error deprived him of his right to a fair

trial. An accumulation of non-reversible errors may deny a defendant a fair trial.

State v. Perrett, 86 Wn. App. 312, 322, 936 P.2d 426 (1997). Because we find no

errors occurred, the doctrine of cumulative error is inapplicable here.

We affirm.

WE CONCUR: