IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 84973-5-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION SHANE MARSTON,
Appellant.
HAZELRIGG, A.C.J. — Shane Marston appeals from a jury conviction for
residential burglary, obstructing a law enforcement officer, two counts of
misdemeanor violation of no-contact order, and one count of tampering with a
witness. The jury also found that the State had proved that the burglary and
violation of no-contact order counts were crimes of domestic violence. Marston
raises evidentiary challenges based on phone calls that were admitted at trial,
including the fact that no instruction was issued to jurors explaining their role as
fact finders in assessing the alleged adopted admissions in a recorded jail phone
call. The trial court properly admitted the 911 call Marston now contests, but erred
when it failed to instruct the jury regarding the alleged adoptive admissions in the
challenged jail call. The failure to instruct the jury requires reversal of two of the
crimes of conviction for which the State utilized this evidence. Affirmed in part,
reversed in part, and remanded. No. 84973-5-I/2
FACTS
On July 4, 2022, an incident occurred between Shane Marston, Jessica
Ramsey, and Gavin Minden that resulted in Ramsey calling the police. Officers
from the Seattle Police Department (SPD) responded to the call, but Marston was
gone by the time they arrived. Marston returned to the house later that night and
law enforcement was contacted again. SPD K9 units eventually led officers to
Melanie Engle’s backyard where Marston was found roughly 40 feet up in a tree.
Marston was ultimately charged with burglary in the first degree, residential
burglary, felony violation of a no-contact order, assault in the fourth degree,
obstructing a law enforcement officer, two counts of misdemeanor violation of a
no-contact order, and two counts of tampering with a witness. The charges of
burglary in the first degree, residential burglary, and violation of no-contact order
were all designated as domestic violence offenses based on Marston’s intimate
relationship with Ramsey. Among the evidence admitted at trial were the two
phone calls at issue in this appeal: a 911 call made by Engle on the night of the
incident, and a call Marston made to Ramsey from the King County Jail where he
was incarcerated shortly after his arrest in this case. Neither Ramsey nor Engle
testified at trial. To authenticate them, the State relied on testimony from the
officers who responded to the 911 call, an officer who is the custodian of the jail
calls, and the contents of each call. The court admitted the calls over objections
from Marston.
The jury found Marston guilty of residential burglary, obstructing a law
enforcement officer, two counts of misdemeanor violation of a no-contact order,
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and one count of tampering with a witness. The jury acquitted Marston of burglary
in the first degree, felony violation of a no-contact order, assault in the fourth
degree, and one count of tampering with a witness. The court opted against a
standard range prison sentence and instead imposed a prison-based Drug
Offender Sentencing Alternative that required Marston to serve the first half of his
sentence on the felony convictions in prison, followed by an equal term of
community custody supervision by the Department of Corrections, and completion
of various treatment requirements.
Marston timely appealed.
ANALYSIS
I. 911 Call
Marston first claims the trial court erred in admitting the 911 recordings,
arguing the State failed to properly authenticate the calls. The standard of review
for a trial court’s decision on the authenticity of proffered evidence is abuse of
discretion. State v. Payne, 117 Wn. App. 99, 110, 69, P.3d 889 (2003). “A trial
court abuses its discretion when a decision is ‘manifestly unreasonable, or
exercised on untenable grounds, or for untenable reasons.’” State v. Howland,
180 Wn. App. 196, 204, 321 P.3d 303 (2014) (internal quotation marks omitted).
“A decision is based on untenable grounds if the court relies on an incorrect legal
standard or does not correctly apply the law.” State v. Hill, 6 Wn. App. 2d 629,
640, 431 P.3d 1044 (2018).
In order for a trial court to admit a recording as evidence, the party
introducing it must identify or authenticate it. State v. Williams, 136 Wn. App. 486,
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499-500, 150 P.3d 111 (2007). “The requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what the proponent claims.” ER
901(a). “Because the proponent must make only a prima facie showing of
authenticity, ER 901 is met if the proponent shows enough proof for a reasonable
fact-finder to find in favor of authenticity.” Payne, 117 Wn. App. at 109.
When voices are recorded, the individuals speaking must be identified. ER
901(b)(5); Williams, 136 Wn. App. at 500. “The identity of a party may be
established by direct or circumstantial evidence.” State v. Danielson, 37 Wn. App.
469, 471, 681 P.2d 260 (1984). Direct identification of voices by an actual
participant in the recorded conversation is not required. Williams, 136 Wn. App.
at 500. The contents of a proffered phone conversation can provide sufficient
evidence of identification and authentication. Danielson, 37 Wn. App. at 471.
Engle was not present at trial to testify, so neither the court or jury were able
to compare her voice to that on the recorded call. Nonetheless, there was enough
circumstantial evidence to authenticate the 911 recordings.
Marston argues in his opening brief that, under State v. Jackson, 1
the party proffering the phone conversation must call a foundational witness to testify (a) that the witness has personal knowledge of the events recorded on the tape; (b) that the witness listened to the tape and compared it with those events; (c) . . . that the tape accurately portrays those events[, and] [i]f the tape records human voices, the foundational witness must identify those voices.
(Emphasis added.) However, Marston mischaracterizes the holding of Jackson.
While the court in Jackson affirmed the method of authentication advocated for by
1 113 Wn. App. 762, 766-67, 54 P.3d 739 (2002).
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Marston, it also explained that “[t]his method is not exclusive, and a proponent may
also use any other that produces evidence sufficient to support the basic findings
of identification and authentication.” 113 Wn. App. at 769. Thus, Jackson does
not stand for the proposition that deviating from Marston’s desired method of
authentication is an abuse of the trial court’s discretion. Rather, Jackson supports
a wide range of identification methods depending on the facts of each case. 2
Marston avers that the admission of the 911 call prejudiced him because it
was used to convict him of obstruction. However, even without the admission of
the call, the admission of body-worn camera footage from that night showed
Marston up in the tree in Engle’s backyard refusing to cooperate with authorities.
That evidence was corroborated by testimony from SPD officers who responded
to the scene.
The combination of Engle’s self-identification during the 911 call and other
circumstantial evidence supports the trial court’s finding that the call at issue was
authentic. In the call, the speaker indicated her name is Melanie Engle. Engle
gave the 911 operator her address and phone number. She described where her
townhouse was situated in relation to where SPD units were out searching. During
the call, Engle stated, “[H]e jumped over the fence. It’s difficult to get into my
backyard . . . he had to have jumped over many fences to get where he’s
at. . . . There’s police lights flashing.” Engle talked about officers searching around
2 For example, the court in Jackson describes cases from our state Supreme Court where
it “held that a tape can be authenticated by showing (1) that the recording machine was ‘capable of taking testimony,’ (2) that its operator was ‘competent to operate it,’ (3) that the resulting record is authentic and correct, (4) that the resulting recording has been preserved without changes, deletions, or additions, and (5) the identity of each relevant speaker.” 113 Wn. App. at 767 (internal quotation marks omitted) (quoting State v. Williams, 49 Wn.2d 354, 360, 301 P.2d 769 (1956)).
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her backyard with flashlights multiple times throughout the call. Engle told the 911
operator the man in her yard was standing “next to [her] tree, and he d[id]n’t have
a shirt on.” Engle moved away from the window worried she would be seen by the
person in her yard and lost sight of him. At the conclusion of the 911 call, Engle
indicated she was going to give officers permission to access her backyard through
her residence.
The statements made on the 911 call were corroborated by other
circumstantial evidence at trial. SPD Officer Jeremy Weiss testified he “jump[ed]
multiple fences prior to finding the suspect.” SPD Sergeant Adam Beatty3 testified
that “officers were using their flashlights” when trying to get Marston to come down
from the tree. Likewise, Weiss described “a very large tree” where the officers
“eventually saw the suspect.” Portions of Weiss’ body camera footage from the
incident were also admitted at trial. In the video, police are seen shining flashlights
into a tree at Marston, who is not wearing a shirt. The footage shows officers trying
to convince Marston to climb down, with some officers standing in the backyard of
a home. These officers appear to have entered the yard through the home via a
sliding door which was standing open.
The 911 call was properly authenticated: Engle self-identified and the
contents of her call were corroborated by testimony at trial from SPD officers who
were present at her residence on July 4, which provided circumstantial evidence
that the call was authentic. The trial court did not abuse its discretion when it
admitted the 911 call.
3 Beatty was a patrol officer at the time of the incident but a sergeant when he testified at
trial.
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II. Jail Call
Like the 911 call from Engle, Marston argues that the jail phone call was not
properly authenticated. 4 However, as with the other call, a combination of self-
identification and circumstantial evidence support the trial court’s finding that the
jail call was authentic. Trial testimony from Sergeant Fred Graves, a corrections
sergeant at the King County Jail, established that there are several mechanisms
in place that incarcerated people must use in order to make a call from the jail.
Graves explained that individuals must use their “booking of arrest number” and a
PIN 5 that is meant to be kept secret. The unique numbers allow prison officials to
track which incarcerated person is making a call, and who they are contacting.
Additionally, he noted that when individuals incarcerated at the King County Jail
first use the phone system there, they are prompted to submit samples of their
voice so that each subsequent call they make can be verified through biometric
technology. Although Marston did not directly identify himself by name in the
recorded call at issue, the testimony from Graves indicates that Marston had to
enter multiple pieces of self-identifying information in order to make the call that
was ultimately recorded and saved to his file.
Although neither Marston nor Ramsey testified at trial, the jail phone call
was one of a number of recordings of their voices that were admitted and played
for the jury. Two 911 calls Ramsey made during the incident were admitted, as
4 Marston also avers that the jail call was admitted as a business record. The State correctly notes that was not a basis for admission found by the trial court. Accordingly, we need not consider Marston’s argument on this point. The State further concedes use of the term “res gestae,” by itself and the trial court, in considering admissibility of the jail call was a misapplication of that doctrine. Because res gestae does not actually appear to have been a basis for admission, no further analysis is required. 5 Personal identification number.
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well as body camera footage from SPD officers responding to each of her calls.
Marston’s voice can be heard on separately admitted body camera footage after
Engle’s 911 call, when he indicated that he was unwilling to come down from the
tree in her yard. With that additional evidence, the court was able to compare
Marston and Ramsey’s voices across different recordings. The contents of the
conversation in the recorded jail call provided other circumstantial evidence that
tended to show its authenticity. For example, Marston refers to spending hours in
a tree and accuses Ramsey of “defending [Minden] over [him].” Ramsey talks
about the actions of her dog, just as she did on her 911 call and in bodycam footage
from officers responding to her call, both of which were played at trial, and Marston
references the injury he sustained from her dog. Therefore, the trial court did not
abuse its discretion when it found that the jail call was properly authenticated.
A. Adoptive Admissions
Marston also asserts that Ramsey’s statements in the jail call were
inadmissible hearsay. He argues the trial court erroneously found that Marston
adopted Ramsey’s statements. We review a trial court’s decision on the admission
of evidence for abuse of discretion. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d
705 (2014). “Hearsay” refers to an out-of-court statement of a declarant that is
offered to prove the truth of the matter asserted. ER 801(c). “Hearsay is not
admissible except as provided by [the] rules [of evidence].” ER 802. One such
exception to the general prohibition on hearsay is an admission adopted by party-
opponents. ER 801(d)(2)(ii). An adoptive admission is a statement by another
that the opposing party “has manifested an adoption or belief in its truth.” Id. In
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other words, a party can adopt the statements of another, either expressly or
implicitly, rendering the statement admissible. “A party can manifest adoption of a
statement by words or gestures. A party can also manifest adoption of a statement
by complete silence or acquiescence.” State v. Hill, 6 Wn. App. 2d 629, 640-41,
431 P.3d 1044 (2018) (citation omitted).
The trial court’s finding that Marston adopted Ramsey’s statements in the
challenged jail phone call was not erroneous. The judge relied on correct legal
standards and correctly applied the law. The trial court found that “there’s sufficient
evidence in looking at the context of th[e] call to establish that the statements made
by Mr. Marston are admissible as party opponent admissions under 801(d)(2), and
so they are admissible.” To support this decision, the trial court judge reviewed
the call transcript and identified several lines where Marston replied to accusations
made by Ramsey. Rather than denying the truth of Ramsey’s statements,
Marston’s replies tended to dispute his intent behind the actions of which Ramsey
accused him of during the phone call. 6 The court specifically relied on that fact to
conclude that the statements made by Ramsey were admissible as statements of
a party-opponent.
6 For example, reading from the call transcript, the trial court stated, “Ramsey indicated,
‘You don’t slap a girl in the face,’ . . . ‘you slapped me in the face twice.’ . . . ‘on my cheek,’ . . . [a]nd Mr. Marston . . . says something about ‘playing around with an’ unintelligible ‘chocolate. I was just playing like, ha-ha, I got through your defenses. I know, cause you’re always like, I could have killed you, I could have killed you.’ That suggests that Mr. Marston acknowledged being offensive to get through Ms. Ramsey’s defenses. And he’s acquiescing or assenting to her assertion that she was slapped.”
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1. Jury Instruction
However, even where there are sufficient foundational facts for a judge to
admit statements as adoptive admissions, such a determination by the court is only
preliminary in nature; it is ultimately the responsibility of the jury to determine
whether the defendant heard, understood, and acquiesced in the accusatory
statement. Hill, 6 Wn. App. 2d at 646. “Whether an accused has made an adoptive
admission is thus a matter of conditional relevance to be determined ultimately by
the jury.” State v. Neslund, 50 Wn. App. 531, 551-52, 749 P.2d 725 (1988). This
court has previously held that “the proponent of adoptive admissions must submit
and the court must give an instruction to the jury that informs the jury that it cannot
consider the [statements] as evidence unless it finds under the circumstances that
the defendant heard, understood, and acquiesced in the statements.” Hill, 6 Wn.
App. 2d at 647. Although the State alluded to the jury’s role to weigh the adopted
admissions at trial here, counsel failed to propose or request a jury instruction. 7
Failure to provide an instruction to the jury as to the adoptive admissions was error.
2. Harmless Error
Because the failure to provide an instruction to the jury alone is not a
constitutional issue, we analyze the error under the nonconstitutional harmless
error standard. Constitutional and nonconstitutional errors can be subject to the
harmless error standard. State v. Kindell, 181 Wn. App. 844, 853, 326 P.3d 876
(2014). Constitutional errors infringe on an individual’s constitutional rights and
7 During argument on the admission of this call, the prosecutor stated, “It’s for the jury to
decide and give weight appropriately as to whether or not it, in fact, was a joke.”
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are presumed prejudicial. State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640
(2007).
Under the nonconstitutional harmless error standard, this court must
reverse if the error was prejudicial. State v. Matamua, 28 Wn. App. 2d 859, 876,
539 P.3d 28 (2023). An evidentiary error is prejudicial when, within reasonable
probabilities, the outcome of the trial would have been different had the error not
occurred. State v. Wade, 98 Wn. App. 328, 338, 989 P.2d 576 (1999).
Marston was convicted of residential burglary, obstructing a law
enforcement officer, two counts of misdemeanor violation of a no-contact order,
and one count of tampering with a witness. 8 Ramsey did not testify at trial. Without
the admission of the jail call, the State would be left with little evidence of the
conduct discussed in that phone conversation as the SPD officers who testified at
trial arrived on scene after the events the State later relied upon to file some of the
felony charges had occurred 9 and, without direct knowledge, the officers could not
testify about them with specificity. Accordingly, there is a reasonable probability
that, with an instruction limiting the use of this evidence, the jury would have come
to different conclusions on some of the allegations faced at trial.
The record is clear, however, that the evidence relied upon for count 5,
obstructing a law enforcement officer, count 7, tampering with a witness, and count
9, misdemeanor violation of a no-contact order, was unrelated to the evidence
8 Marston was acquitted of burglary in the first degree, felony violation of a no-contact order,
assault in the fourth degree, and a separate count of tampering with a witness. As such, jeopardy has attached to these counts and they are not subject to retrial. “Double jeopardy bars appeal and retrial when the defendant has been acquitted.” State v. Karpov, 195 Wn.2d 288, 293, 458 P.3d 1182 (2020). 9 Tampering with a witness is a class C felony. RCW 9A.72.120(2). The two such charges
Marston faced were alleged to have occurred months after the date of his arrest.
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challenged on appeal. In closing argument, the State highlighted the SPD body
footage camera and Weiss’ testimony in support of its charge of obstructing a law
enforcement officer, Marston’s communication with his friend in August and
September 2022 as conclusive of its tampering with a witness allegation and the
misdemeanor violation of a no-contact order set out in count 9. As such, Marston
does not establish prejudice as to these convictions based on the instructional
error regarding adoptive admissions. We affirm the convictions in counts 5, 7, and
9, but reverse those for counts 2 and 6 and remand. 10
III. Victim Penalty Assessment
Marston avers the court erred in imposing the victim penalty assessment
(VPA), which was mandatory at the time he was sentenced, despite his indigency.
The State does not agree that the VPA is a “cost” captured by the applicable
statutory amendments that went into effect after sentencing but does not dispute
Marston’s indigency or object to remand for the trial court to strike this legal
financial obligation. We have repeatedly held that the amendments to RCW
7.68.035 apply to cases pending on appeal when the statutory changes went into
effect. See State v. Phillips, 6 Wn. App. 2d 651, 677, 431 P.3d 1056 (2018); State
v. Wemhoff, 24 Wn. App. 2d 198, 201, 519 P.3d 1056 (2022); State v. Ellis, 27 Wn.
App. 2d 1, 16-17, 530 P.3d 1048 (2023); see also State v. Ramirez, 191 Wn.2d
732, 747, 426 P.3d 714 (2018). Accordingly, we remand for the trial court to strike
the VPA from the judgment and sentence.
10 In his pro se statement of additional grounds for review, Marston presents a confrontation
challenge regarding the State’s failure to introduce Ramsey’s testimony. If the State elects to retry Marston on counts 2 and 6, he may raise that issue in the trial court.
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Affirmed in part, reversed in part, and remanded.
WE CONCUR:
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