FILED OCTOBER 13, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 33344-2-111 Respondent, ) (Consolidated with ) No. 33345-1-111) v. ) ) MICHAEL CURTIS COLLEY, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -Michael Colley appeals his five Franklin County convictions,
primarily raising evidentiary challenges. Although we agree that there was error, none of
it was harmful and we affirm the convictions.
FACTS
This appeal arises from an incident in which Mr. Colley was apprehended driving
a stolen vehicle; some of the contents of the vehicle form the basis for many of the
evidentiary issues presented here. We address the facts (typically in conjunction with the
argument) and the issues in a somewhat cursory manner since we intend this opinion to
be non-precedential.
When stopped, Mr. Colley presented the driver's license for Christopher Brunetti,
but when questioned by the officer said his first name was "Carlos." The passenger, Adel
Estrada, also gave a false name to the officer. Both were arrested and a warrant was No. 33344-2-III; 33345-1-III State v. Colley
obtained to search the stolen vehicle. Deputies discovered two guns, ammunition, Camel
Crush cigarettes, a ski mask, and miscellaneous other items including a receipt from a
local Walgreens store. These items were all admitted into evidence at trial.
An Adams County deputy sheriff discovered a Hyundai with a broken window a
few days after Colley had been arrested in Franklin County. Inside was paperwork for
Adel Estrada, a box of Camel Crush cigarettes, and mail from 31 individuals or
businesses, including Mr. Brunetti. The prosecutor sought to admit this "404(b )"
evidence at trial. After hearing argument and defense objection, which was renewed at
trial, the trial court admitted the Adams County information. The court did not explain
its reasoning in admitting this evidence.
A jury convicted Mr. Colley of felony counts of unlawful possession of a firearm,
identity theft, and possession of a stolen vehicle, and misdemeanor counts of possession
of stolen property and making a false statement to a public servant. He received
concurrent sentences, the longest of which was twelve months for the weapons count. He
timely appealed to this court.
ANALYSIS
Mr. Colley contends that the court erred in admitting the Walgreens receipt, some
of the other items in the stolen car, the Adams County evidence, and in questioning about
Ms. Estrada. After noting the standards of review for these challenges, we address those
claims in the noted order.
2 No. 33344-2-111; 33345-1-111 State v. Colley
Initially, we note the appellate review standards governing evidentiary challenges.
Evidentiary rulings, including those under ER 404(b ), are reviewed for abuse of
discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Discretion is
abused if it is exercised on untenable grounds or for untenable reasons. State ex rel.
Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971). In order to present an
evidentiary argument on appeal, the party must have challenged the admission of evidence
at trial on the same grounds that it raises on appeal. State v. Guloy, 104 Wn.2d 412,422,
705 P.2d 1182 (1985). As explained in Guloy:
As to statement (d), counsel objected but on the basis that it was not proper impeachment nor was it within the scope of redirect. A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. Since the specific objection made at trial is not the basis the defendants are arguing before this court, they have lost their opportunity for review.
Id. (citation omitted).
Evidence of other bad acts is permitted to establish specific purposes such as the
identity of an actor or the defendant's intent or purpose in committing a crime. ER
404(b ). Those purposes, in tum, must be of such significance to the current trial that the
evidence is highly probative and relevant to prove an "essential ingredient" of the current
crime. State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Evidence admitted
under ER 404(b) is considered substantive evidence rather than impeachment evidence.
State v. Laureano, 101 Wn.2d 745,766,682 P.2d 889 (1984), overruled in part by State
3 No. 33344-2-III; 33345-1-III State v. Colley
v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1990); State v. Wilson, 60 Wn.
App. 887, 891, 808 P.2d 754 (1991).
When considering ER 404(b) evidence, the proponent of the evidence must first
convince a trial court by a preponderance of the evidence that the "misconduct" actually
occurred. Lough, 125 Wn.2d at 853. A trial court may conduct a hearing to take
testimony, but is not required to do so. State v. Kilgore, 147 Wn.2d 288, 294-295, 53
P.3d 974 (2002). If the court determines that the misconduct occurred, the court then
must identify the purpose for which the evidence is offered, determine whether the
evidence is relevant to prove an element of the offense, and weigh the probative value of
the evidence against its prejudicial effect. Lough, 125 Wn.2d at 853. The court may then
admit the evidence subject to a limiting instruction telling the jury the proper uses of the
evidence. Id. at 864.
The admission of other "bad acts" evidence under ER 404(b) does not present a
constitutional issue. Dowling v. United States, 493 U.S. 342, 352, -110 S. Ct. 668, 107 L.
Ed. 2d 708 (1990). Nonconstitutional error is harmless if, within reasonable probability, it
did not affect the verdict. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986).
Walgreens Receipt
The Walgreens receipt showed that purchases, including Camel Crush cigarettes,
had been recently made at a store close to where the vehicle was stopped. The other items
listed on the receipt also were found in the car and Ms. Estrada admitted that she and the
4 No. 33344-2-III; 33345-1-III State v. Colley
defendant had purchased items at the Walgreens that evening. During argument, the
prosecutor used the receipt to indicate the time the defendant had been at the store.
Mr. Colley argues that the receipt was hearsay and should have been excluded on
that basis. 1 We agree. The evidence was used to establish that the items on the receipt
had been purchased at the nearby Walgreens shortly before the traffic stop. Since the
receipt served to prove the truth of what was stated on the form, it was hearsay. ER
80l(c). Business records are admitted pursuant to the statutory requirements ofRCW
5.45.020. That was not done here. It was error to admit the receipt for the purpose of
proving the information contained therein.
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FILED OCTOBER 13, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 33344-2-111 Respondent, ) (Consolidated with ) No. 33345-1-111) v. ) ) MICHAEL CURTIS COLLEY, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J. -Michael Colley appeals his five Franklin County convictions,
primarily raising evidentiary challenges. Although we agree that there was error, none of
it was harmful and we affirm the convictions.
FACTS
This appeal arises from an incident in which Mr. Colley was apprehended driving
a stolen vehicle; some of the contents of the vehicle form the basis for many of the
evidentiary issues presented here. We address the facts (typically in conjunction with the
argument) and the issues in a somewhat cursory manner since we intend this opinion to
be non-precedential.
When stopped, Mr. Colley presented the driver's license for Christopher Brunetti,
but when questioned by the officer said his first name was "Carlos." The passenger, Adel
Estrada, also gave a false name to the officer. Both were arrested and a warrant was No. 33344-2-III; 33345-1-III State v. Colley
obtained to search the stolen vehicle. Deputies discovered two guns, ammunition, Camel
Crush cigarettes, a ski mask, and miscellaneous other items including a receipt from a
local Walgreens store. These items were all admitted into evidence at trial.
An Adams County deputy sheriff discovered a Hyundai with a broken window a
few days after Colley had been arrested in Franklin County. Inside was paperwork for
Adel Estrada, a box of Camel Crush cigarettes, and mail from 31 individuals or
businesses, including Mr. Brunetti. The prosecutor sought to admit this "404(b )"
evidence at trial. After hearing argument and defense objection, which was renewed at
trial, the trial court admitted the Adams County information. The court did not explain
its reasoning in admitting this evidence.
A jury convicted Mr. Colley of felony counts of unlawful possession of a firearm,
identity theft, and possession of a stolen vehicle, and misdemeanor counts of possession
of stolen property and making a false statement to a public servant. He received
concurrent sentences, the longest of which was twelve months for the weapons count. He
timely appealed to this court.
ANALYSIS
Mr. Colley contends that the court erred in admitting the Walgreens receipt, some
of the other items in the stolen car, the Adams County evidence, and in questioning about
Ms. Estrada. After noting the standards of review for these challenges, we address those
claims in the noted order.
2 No. 33344-2-111; 33345-1-111 State v. Colley
Initially, we note the appellate review standards governing evidentiary challenges.
Evidentiary rulings, including those under ER 404(b ), are reviewed for abuse of
discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Discretion is
abused if it is exercised on untenable grounds or for untenable reasons. State ex rel.
Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971). In order to present an
evidentiary argument on appeal, the party must have challenged the admission of evidence
at trial on the same grounds that it raises on appeal. State v. Guloy, 104 Wn.2d 412,422,
705 P.2d 1182 (1985). As explained in Guloy:
As to statement (d), counsel objected but on the basis that it was not proper impeachment nor was it within the scope of redirect. A party may only assign error in the appellate court on the specific ground of the evidentiary objection made at trial. Since the specific objection made at trial is not the basis the defendants are arguing before this court, they have lost their opportunity for review.
Id. (citation omitted).
Evidence of other bad acts is permitted to establish specific purposes such as the
identity of an actor or the defendant's intent or purpose in committing a crime. ER
404(b ). Those purposes, in tum, must be of such significance to the current trial that the
evidence is highly probative and relevant to prove an "essential ingredient" of the current
crime. State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Evidence admitted
under ER 404(b) is considered substantive evidence rather than impeachment evidence.
State v. Laureano, 101 Wn.2d 745,766,682 P.2d 889 (1984), overruled in part by State
3 No. 33344-2-III; 33345-1-III State v. Colley
v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1990); State v. Wilson, 60 Wn.
App. 887, 891, 808 P.2d 754 (1991).
When considering ER 404(b) evidence, the proponent of the evidence must first
convince a trial court by a preponderance of the evidence that the "misconduct" actually
occurred. Lough, 125 Wn.2d at 853. A trial court may conduct a hearing to take
testimony, but is not required to do so. State v. Kilgore, 147 Wn.2d 288, 294-295, 53
P.3d 974 (2002). If the court determines that the misconduct occurred, the court then
must identify the purpose for which the evidence is offered, determine whether the
evidence is relevant to prove an element of the offense, and weigh the probative value of
the evidence against its prejudicial effect. Lough, 125 Wn.2d at 853. The court may then
admit the evidence subject to a limiting instruction telling the jury the proper uses of the
evidence. Id. at 864.
The admission of other "bad acts" evidence under ER 404(b) does not present a
constitutional issue. Dowling v. United States, 493 U.S. 342, 352, -110 S. Ct. 668, 107 L.
Ed. 2d 708 (1990). Nonconstitutional error is harmless if, within reasonable probability, it
did not affect the verdict. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986).
Walgreens Receipt
The Walgreens receipt showed that purchases, including Camel Crush cigarettes,
had been recently made at a store close to where the vehicle was stopped. The other items
listed on the receipt also were found in the car and Ms. Estrada admitted that she and the
4 No. 33344-2-III; 33345-1-III State v. Colley
defendant had purchased items at the Walgreens that evening. During argument, the
prosecutor used the receipt to indicate the time the defendant had been at the store.
Mr. Colley argues that the receipt was hearsay and should have been excluded on
that basis. 1 We agree. The evidence was used to establish that the items on the receipt
had been purchased at the nearby Walgreens shortly before the traffic stop. Since the
receipt served to prove the truth of what was stated on the form, it was hearsay. ER
80l(c). Business records are admitted pursuant to the statutory requirements ofRCW
5.45.020. That was not done here. It was error to admit the receipt for the purpose of
proving the information contained therein.
The prosecutor argues both that the document was properly authenticated and that
Mr. Colley adopted the receipt as his own statement by possessing it. See ER
801(d)(2)(ii) (excluding from the definition of hearsay, any statement "which the party
has manifested an adoption or belief in its truth."). Neither argument is persuasive.
Whether something is properly authenticated is governed by ER 901 et seq. Hearsay is
governed by the provisions of ER 801 et seq. and, in this case, also by RCW 5.45.020.
Authentication may be required to admit a document, but authentication does not
establish the foundation for admitting business records or other forms of hearsay. They
present two different questions.
1 He also argues that the receipt was irrelevant evidence. However, he did not challenge the item on that basis at trial and cannot now do so. Guloy, I 04 Wn.2d at 422.
5 No. 33344-2-III; 33345-1-III State v. Colley
We also are not persuaded that mere possession of a document, without more,
establishes that the possessor also adopted those statements as his or her own. A librarian
possesses many books, but is not thereby deemed to claim all of their contents as her own
statements. Instead, there must be some manifestation that the possessor intends to
convey the message in the document as his own. For instance, when Mr. Colley was
asked for identification, he presented Mr. Brunetti's driver's license. That act was an
assertion that the contents of the document spoke for Mr. Colley. Merely having a
receipt in the car, or even on his person, is not an adoptive admission.
The trial court erred in admitting the receipt to prove the contents of the writings
thereon. Nonetheless, the error was absolutely harmless in this case. Ms. Estrada
testified that the two had made purchases at Walgreens and the items, or photos thereof,
were admitted into evidence at trial. The only information not already before the jury
involved the time of the purchases. While arguably relevant, that information was of no
consequence to this case. The timing of the purchase, shortly before the traffic stop, only
served to confirm that the items were purchased nearby not long before the deputy
stopped the couple in the stolen vehicle. If anything, the receipt inured to the benefit of
Mr. Colley as it suggested he had not stolen those items.
The timing of the Walgreens purchase was not at issue in trial. Error in admitting
that information was absolutely non-prejudicial.
6 , f
l No. 33344-2-III; 33345-1-III State v. Colley
ER 404(b)
Mr. Colley next argues that the trial court erred in admitting the ski mask and the
evidence from the Adams County investigation. We agree that the trial court erred in
failing to follow the balancing test required by ER 404(b) and that error, particularly the
failure to balance on the record the probative value of the evidence against any
prejudicial effect, leaves us uncertain whether the Adams County evidence was
admissible. Assuming that the court erred in admitting that evidence, however, the error
did not, within reasonable probability, affect the verdict.
Mr. Colley was arrested while in possession of the stolen vehicle and the other
items found therein, including the weapons. He lied to the police about his identity and
attempted to pass himself off as Mr. Brunetti. Thus, all five crimes were committed in the
presence of the officers and were not influenced by the Adams County evidence. Indeed,
the only piece of that evidence related to Mr. Colley was mail belonging to Mr. Brunetti
and, possibly, the Camel Crush cigarettes. While the evidence suggested that Mr. Colley
was involved with the Hyundai found in Adams County, the converse was not true. The
Adams County evidence held very little significance to the Franklin County prosecution.
It may have been a different story if the other evidence had been tied more closely to Mr.
Colley and suggested that he was living by stealing mail, but that was not the case.
The Hyundai evidence did not, within reasonable probability, affect the verdict.
Any error in admitting the evidence was not prejudicial.
7 No. 33344-2-III; 33345-1-III State v. Colley
The ski mask presents a slightly different issue. Mr. Colley argues that it was
irrelevant and prejudicial. To the extent that he is arguing prejudice as an independent
reason for excluding the mask per ER 403, he has waived the claim by not arguing it to
the trial court. Guloy, 104 Wn.2d at 422. To the extent that he is arguing that the
evidence was irrelevant and that he suffered prejudice therefrom, we disagree. The
evidence was relevant.
Relevant evidence is admissible. ER 402. Evidence is relevant if it has "any
tendency" to make a fact of consequence "more probable or less probable." ER 401. The
ski mask was relevant to show knowledge on the part of Mr. Colley that the vehicle and
other items were stolen. Although dependent upon a chain of inferences that would
suggest Mr. Colley knew the items were stolen because he stole them, the ski mask was
probative that Mr. Colley had need to hide his identity. The weight to be given this
information, if any, was for the jury.
The error in admitting the ER 404(b) evidence was harmless; there was no error in
admitting the ski mask into evidence.
Questioning about Ms. Estrada
During questioning of a deputy sheriff about the traffic stop and subsequent
behavior of the occupants, the prosecutor asked if Ms. Estrada was "honest" about her
identity. Defense counsel objected that the question was irrelevant since "honesty" was a
jury question. The judge directed the prosecutor to set a foundation for the question. i
8 I I
l' f 1 f No. 33344-2-III; 33345-1-III State v. Colley
After she did so by having the deputy explain the identity produced and how Ms. Estrada
did not resemble that person, the prosecutor again asked the same question without
objection and the deputy answered that she was not. Mr. Colley now contends that
question invaded the province of the jury. In this instance, it did not.
In context, the prosecutor was simply attempting to get the deputy to explain the
course of the investigation--the occupants had produced false identification and the
deputy had to dig further to find their truthful identities. The question was
unartful--defense counsel both explained how the prosecutor should have asked the
question and later demonstrated in his questioning of Ms. Estrada--but it was not an
attempt at soliciting an opinion about the credibility of Ms. Estrada's (then non-existent)
testimony. She was not a scheduled witness for the State and this does not appear to be a
case of preemptive impeachment of a defense witness. 2 This simply was an attempt to
explain the course of events. The trial judge's ruling also suggests he heard the question
in the same manner since he directed counsel to provide a foundation for the statement
rather than direct the prosecutor to rephrase the question.
2 Interestingly, not only did defense counsel have Ms. Estrada explain that she lied about her identity and why she did so, counsel also impeached her with several prior felony convictions. To the extent the prosecutor's question could be interpreted as calling for an opinion about Ms. Estrada's honesty, it was consistent with the defense effort to paint Ms. Estrada as the bad actor in this case.
9 No. 33344-2-111; 33345-1-111 State v. Colley
To the extent that the question and answer could have been misconstrued as a
comment on Ms. Estrada's credibility, the defense should have renewed its objection to
the final question. The failure to do so arguably waives the current objection. But, even
if the issue is preserved and the answer was erroneous, it was not harmful in the least. If
it had been construed as an opinion about honesty, it was one that supported the defense
efforts rather than harming them.
The inartful question did not prejudice the defense. None of the errors or alleged
errors, individually or cumulatively, affected the fairness of the trial. The convictions are
affirmed.
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.
WE CONCUR:
ditikw ~, ~- Siddoway, J.