State of Washington v. Jessica Ann Smalley

Opinion

FILED

AUGUST 20, 2026

In the Office of the Clerk of Court WA State Court of Appeals, Division III

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

STATE OF WASHINGTON, ) No. 40984-8-III )

Respondent, )

)

v. )

)

JESSICA ANN SMALLEY, ) UNPUBLISHED OPINION )

Appellant. )

HILL, J. — Jessica Smalley appeals her convictions for assault in the second degree with a firearm and gross misdemeanor harassment. First, she argues the trial court erred in ruling that defense counsel opened the door to the admission of previously excluded body camera footage. Second, she argues Washington State’s harassment statute, RCW 9A.46.020, is unconstitutionally overbroad. Third, she argues her convictions for harassment and assault in the second degree violate double jeopardy. Finally, she argues her conviction for assault in the second degree and the accompanying firearm enhancement violate double jeopardy.

We affirm.

State v. Smalley BACKGROUND

During a mutual road rage incident, Jessica Smalley rolled down her window, lifted an unloaded rifle, and told the driver of the other vehicle, Michael Heard, that she was going to shoot him.

Corporal Alexxi Timmons and Officer Patrick Jo of the Lacey Police Department detained and questioned Smalley while she sat in a patrol vehicle. Corporal Timmons did not inform Smalley that the conversation was being recorded by her body camera. The State later charged Smalley with assault in the second degree (under the deadly weapon prong) with a firearm enhancement and gross misdemeanor harassment.

Prior to trial, Smalley brought a motion in limine to exclude the portion of Corporal Timmons’ body camera recording depicting her questioning in the back of the patrol vehicle (recording). Smalley argued that Corporal Timmons failed to inform her that she was being recorded, in violation of this State’s privacy act, under RCW 9.73.030. The court granted the motion to exclude the recording. Notably, defense counsel agreed with the State that the substance of the recording—Smalley’s statements—were still admissible and could be elicited through Corporal Timmons’ testimony.

At trial, the State called Corporal Timmons as a witness and asked her about the statements made by Smalley in the back of the patrol vehicle. On cross-examination, defense counsel inquired:

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State v. Smalley

[DEFENSE COUNSEL:] Okay. All right. So you—[the prosecutor] asked you some specific questions about what you asked Ms.

Smalley and what she said, right?

[CORPORAL TIMMONS:] Yes.

[DEFENSE COUNSEL:] And that wasn’t the entirety of the conversation between the two of you, was it?

[CORPORAL TIMMONS:] No.

[DEFENSE COUNSEL:] Okay. That was actually recorded?

[CORPORAL TIMMONS:] Yes.

[DEFENSE COUNSEL:] And transcribed?

[CORPORAL TIMMONS:] Yes.

[DEFENSE COUNSEL:] Have you seen the transcript of that?

[CORPORAL TIMMONS:] Yes.

[DEFENSE COUNSEL:] When was the last time you saw that?

[CORPORAL TIMMONS:] Yesterday.

[DEFENSE COUNSEL:] Okay. So you know that in that interview you had with Ms. Smalley that she said she was threatened, right?

[CORPORAL TIMMONS:] Yes.

[DEFENSE COUNSEL:] Okay. And that it was Mr. Heard who was threatening her prior to any firearm being displayed in any manner, correct?

[CORPORAL TIMMONS:] Yes.

[DEFENSE COUNSEL:] In fact, she told you that Mr. Heard told her she had a—he had a firearm before she ever displayed a weapon?

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State v. Smalley [CORPORAL TIMMONS:] Yes.

[DEFENSE COUNSEL:] In fact, what she told you originally, she being Ms. Smalley, when you said, What happened, she said that Mr. Heard rolls up along the side that she’s been awaken from and she says, What’s going on to Mr. Heard, right?

[CORPORAL TIMMONS:] Yes.

[DEFENSE COUNSEL:] And she told you that he’s like, he went off on me, those were her words, right?

[CORPORAL TIMMONS:] Yes.

Verbatim Tr. of Proc. (VTP) at 332-34.

The State then objected on hearsay grounds, and the court momentarily excused the jury. After the court ruled on the hearsay issue, the State argued defense counsel opened the door to the admission of the recording. The State expressed concern that the jury may draw negative inferences against the State if the recording was not introduced or played. The State also asserted the recording was the best evidence of Smalley’s statements. Defense counsel replied that he remembered specifically telling the court and opposing counsel that he did not object to the

verbatim substance of the interview being admitted. In fact, I stipulated that the proper foundation was laid, that the proper Miranda rights were read, and that every statement made to every question asked was admissible, and that’s exactly what I’m asking now, consistent with the record I made to the Court yesterday.

VTP at 344.

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State v. Smalley The court permitted additional briefing on the issue before finding the defense opened the door to the admission of the previously excluded recording.

The recording was admitted as exhibit 12 and played for the jury. Before questioning resumed, the court instructed the jury that they were not to consider, and were to disregard in its entirety, a comment made by Corporal Timmons in the recording regarding Smalley’s veracity.

The jury found Smalley guilty as charged. Smalley timely appeals.

ANALYSIS

ADMISSION OF THE RECORDING At trial, the court ruled that the defense opened the door to the admission of the recording by referencing it during Corporal Timmons’ cross-examination. Smalley argues this ruling was in error.

We review a trial court’s evidentiary rulings for an abuse of discretion. State v.

Jennings, 199 Wn.2d 53, 59, 502 P.3d 1255 (2022). If we determine that the trial court’s ruling was not an abuse of discretion, the inquiry ends. State v. Blair, 3 Wn. App. 2d 343, 353, 415 P.3d 1232 (2018). If, however, the trial court abused its discretion in making the evidentiary ruling, we will then consider harmless error. State v. Christensen, 153 Wn.2d 186, 200, 102 P.3d 789 (2004).

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State v. Smalley “A trial court abuses its discretion when its ruling is manifestly unreasonable or based on untenable grounds.” Fite v. Mudd, 19 Wn. App. 2d 917, 934, 498 P.3d 538 (2021); State v. Gallagher, 112 Wn. App. 601, 609, 51 P.3d 100 (2002). A trial court’s decision “is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in the record or was reached by applying the wrong legal standard” and “is manifestly unreasonable if it falls outside the range of acceptable choices, given the facts and the applicable legal standard.” State v. Horn, 3 Wn. App. 2d 302, 312, 415 P.3d 1225 (2018). Importantly, “[t]he appellant bears the burden of proving an abuse of discretion.” State v. Ashley, 186 Wn.2d 32, 39, 375 P.3d 673 (2016).

“‘[A] party who is the first to raise a particular subject at trial may open the door to evidence offered to explain, clarify, or contradict the party’s evidence.’” State v. Jones, 144 Wn. App. 284, 298, 183 P.3d 307 (2008) (quoting KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14, at 66-67 (5th ed. 2007)). “When a party opens the door to a subject, the opposing party may request admittance of previously excluded evidence on that subject during cross or redirect examination.” Fite, 19 Wn. App. 2d at 935.

However, the open door doctrine should not be conflated with the curative admissibility doctrine. Curative admissibility permits the introduction of inadmissible evidence for reasons other than relevance when necessary to counter the effect of

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State v. Smalley improper evidence previously admitted by the other party without objection. State v. Rushworth, 12 Wn. App. 2d 466, 475, 458 P.3d 1192 (2020). A prosecutor cannot sit by as the defense references inadmissible evidence and then argue that more inadmissible evidence should be considered. Id. at 476. Instead, the prosecutor’s remedy is to object so the court can strike the reference and direct the jury to disregard it. Id.

Here, we apply curative admissibility rather than the open door doctrine. The court ruled the recording was inadmissible under RCW 9.73.050. However, the parties agreed that the statements Smalley made in the recording would be admissible through Corporal Timmons’ testimony. It was the format, i.e., the recording itself, that was inadmissible, not the topic or subject contained in the recording. When the defense mentioned the recording on cross-examination, the State failed to object and then argued that the entire recording should be introduced. This was improper, and it was an abuse of discretion to admit the inadmissible recording.

However, we must still determine whether this error was prejudicial. As the admission of the recording was a statutory violation, we apply “the rule that the error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.” State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). Here, Smalley fails to show prejudice. Defense counsel agreed the substance of the recording was admissible, and the jury was already

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State v. Smalley aware of Smalley being questioned in the back of a patrol vehicle. While some of Corporal Timmons’ statements in the recording suggested she doubted Smalley’s credibility, the court instructed the jury to disregard these statements.

Therefore, we conclude that, although the court abused its discretion in admitting the recording, the ruling had no impact on the outcome of the trial.

HARASSMENT STATUTE Smalley next argues that this State’s harassment statute, RCW 9A.46.020(1) and (2)(a), is unconstitutionally overbroad. However, while this case was pending, the Washington State Supreme Court rejected this argument in State v. Calloway, 6 Wn.3d 257, 585 P.3d 1270 (2026). We adhere to the Supreme Court’s holding and conclude the statute is constitutional.

DOUBLE JEOPARDY FOR ASSAULT & HARASSMENT Smalley argues that her convictions violate double jeopardy because the crimes are the same in fact and in law. This court reviews double jeopardy claims de novo. State v. Smith, 177 Wn.2d 533, 545, 303 P.3d 1047 (2013) (plurality opinion). Under both the United States Constitution and Washington State Constitution, individuals have a right to be free from double jeopardy. State v. Hancock, 17 Wn. App. 2d 113, 117, 484 P.3d 514 (2021); State v. Heaven, 127 Wn. App. 156, 160-61, 110 P.3d 835 (2005); U.S. CONST. amend. V, XIV; WASH. CONST. art. I, § 9. “The state and federal double

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State v. Smalley jeopardy clauses offer the same scope of protection.” Heaven, 127 Wn. App. at 161. “A double jeopardy claim is of constitutional proportions and may be raised for the first time on appeal.” State v. Land, 172 Wn. App. 593, 598, 295 P.3d 782 (2013).

The right to be free from multiple punishments is a unique constitutional right in that “[t]he State has broad authority to extract multiple punishments for the same conduct.” Hancock, 17 Wn. App. 2d at 117. No double jeopardy violation occurs if multiple punishments of the same conduct are consistent with legislative intent. Id. This court examines the language of applicable statutes to determine whether the legislature intended to authorize multiple punishments for the same conduct. State v. Wilkins, 200 Wn. App. 794, 806, 403 P.3d 890 (2017).

“If the statutes do not expressly allow for multiple convictions arising from the same act, we next determine whether two statutory offenses are the same in law and in fact.” Id. “Two offenses are not the same when ‘there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other.’” Land, 172 Wn. App. at 599 (quoting State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983)). “[I]f the crimes, as charged and proved, are the same in law and in fact, they may not be punished separately absent clear legislative intent to the contrary.” State v. Freeman, 153 Wn.2d 765, 777, 108 P.3d 753 (2005).

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State v. Smalley RCW 9A.46.020, provides, in relevant part:

(1) A person is guilty of harassment if:

(a) Without lawful authority, the person knowingly threatens:

(i) To cause bodily injury immediately or in the future to the person threatened or to any other person; [and]

....

(2)(a) Except as provided in (b) of this subsection, a person who harasses another is guilty of a gross misdemeanor.

Under RCW 9A.36.021,

(1) A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree:

....

(c) Assaults another with a deadly weapon.

Because the language of these statutes does not reflect whether the legislature intended to allow for multiple convictions arising from the same conduct, this court must determine whether the offenses are the same in fact and in law under the Blockburger 1 test. Our Supreme Court recently made this determination in State v. Ray, 5 Wn.3d 350,

1 Blockburger v. U.S., 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932).

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State v. Smalley 575 P.3d 321 (2025), concluding that implied legislative intent on this issue is “mixed.” We therefore turn to whether the offenses are the same in law and in fact.

Same in Fact The parties agree that, because the State relied on Smalley displaying a firearm and her threat to shoot Heard satisfies the intent element of assault and the knowing element of harassment, the crimes are the same in fact.

Same in Law To find Smalley guilty of assault in the second degree, the jury was instructed that it must find Smalley assaulted Heard with a deadly weapon. “Assault” was properly defined as:

an act, with unlawful force, done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury.

Clerks Papers (CP) at 201.

To find Smalley guilty of harassment, the State was required to prove (1) Smalley knowingly threatened Heard with bodily injury immediately or in the future, or (2) the words or conduct placed Heard in reasonable fear that the threat would be carried out. Further,

[t]o be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker,

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State v. Smalley

would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in jest or idle talk. In addition, the speaker must know of and disregard a substantial risk that the statement or act would be interpreted in that manner.

CP at 210.

Because proving Smalley committed assault in the second degree with a deadly weapon required a different mens rea than proving she committed harassment, we conclude that harassment and assault in the second degree are not the same in law and, therefore, are “presumptively not the same offense for double jeopardy purposes.” Ray, 5 Wn.3d at 372.

Separate Punishments With this presumption, Smalley is unable to show clear evidence of legislative intent to prohibit separate punishments. Id. at 373-74.

We conclude Smalley’s convictions do not violate double jeopardy.

FIREARM ENHANCEMENT DOUBLE JEOPARDY Smalley argues that her conviction for assault in the second degree with a deadly weapon and the accompanying firearm enhancement amount to a violation of double jeopardy because she is being punished twice for the use of the firearm.

In State v. Kelley, 168 Wn.2d 72, 226 P.3d 773 (2010), the Washington State Supreme Court addressed whether double jeopardy principles are violated by the

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State v. Smalley imposition of a firearm enhancement on a crime where the use of a firearm is an underlying element. The court held that “imposition of a firearm enhancement does not violate double jeopardy when an element of the underlying offense is use of a firearm.” Id. at 84. This holding controls the outcome of the instant issue on appeal.

We affirm.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Hill, J.

WE CONCUR:

Staab, C.J.

Cooney, J.