IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, ) No. 80657-2-I ) Respondent, ) ) v. ) ) ZACHARY LOWELL MADDING, ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — Zachary Madding was convicted of second degree assault
in one trial and of forgery and making false statements to a public servant in his
second trial. Madding contends retrial is required on the assault conviction due to
evidentiary errors. Because he fails to demonstrate prejudice from any alleged
error, we affirm his conviction for second degree assault.
Madding argues both convictions from his second trial must be vacated
because they were unsupported by the evidence. Because the State
demonstrated beyond a reasonable doubt that the arresting officer relied on
Madding’s falsehood to carry out his official duties, we affirm the conviction for
making a false statement to a public servant. But because the State presented
only limited, equivocal evidence of Madding’s intent to defraud or injure using his
fake identification card, the State failed to prove he committed forgery.
Therefore, we affirm in part, reverse in part, and remand to vacate
Madding’s forgery conviction. No. 80657-2-I/2
FACTS
Mukilteo police Officer Andrew Jones was on patrol the morning of May 19,
2018, when, at 9:40, a 911 call came from the Staybridge Suites hotel. Officer
Jones arrived at the hotel about 45 seconds later. He saw a young woman, Sierra
Norbisrath, slumped over on a bench out front and saw two men, Zachary
Madding and Kirk Ostermann, grappling on the ground. To secure the scene,
Officer Jones immediately handcuffed Madding. Moments later, Officer Vitaliy
Shapoval arrived and examined Norbisrath. She was “unresponsive” and “just
looked like the life was leaving her.”1 Ostermann told Officer Shapoval that
Madding, Norbisrath’s ex-boyfriend, had forced her to take Xanax and had
sprayed fentanyl up her nose. Officer Steve Fanning had arrived while Officer
Shapoval was examining Norbisrath, and he revived her by administering two
doses of Narcan.
Officer Jones asked Madding for his name, and Madding gave his brother’s
name: Joshua Hunter Madding. Officer Jones ran the name through dispatch and
concluded it was fake. Officer Jones learned that Madding’s real first name was
Zachary. Madding then admitted there was a Department of Corrections warrant
out for him. After placing him under arrest based on the warrant, Officer Jones
searched Madding and found two fake Illinois identification cards with Madding’s
picture and the name “Nicholas Pavlik.” Madding admitted the cards were his and,
according to Officer Jones, said he “used them if he needed to, like, stay
1 Report of Proceedings (RP) (Oct. 2, 2019) at 606.
2 No. 80657-2-I/3
somewhere or book a room at a hotel because of his [Department of Corrections]
warrant.”2
Meanwhile, firefighter and paramedic James Prades transported Norbisrath
to the hospital. Norbisrath, who was crying and very emotional, told Prades that
Madding had “force-fed her” Xanax and sprayed her 10 to 15 times with fentanyl.3
Norbisrath also “exclaimed that ‘he tried to kill me.’”4 Norbisrath arrived at the
hospital around 10:20 a.m. and was seen by the attending emergency room
physician and a forensic nurse examiner. Officer John Ernst interviewed
Norbisrath around 11:30 a.m. and then called in the police department’s domestic
violence coordinator, Danielle Reynolds, to speak with her. Reynolds arrived and
interviewed Norbisrath around 1:00 p.m.
The State charged Madding with first degree assault and unlawful
imprisonment, both with domestic violence enhancements. He was also charged
with forgery and making a false statement to a public servant. The court severed
the assault and unlawful imprisonment charges from the forgery and false
statement charges.
During the trial on the first degree assault and false imprisonment charges,
the court admitted testimony from Norbisrath that Madding assaulted her in
January of 2018, a hearsay statement Norbisrath made to Reynolds about being
afraid of pressing charges against Madding, and testimony from Officer Jones
2 RP (Nov. 19, 2019) at 264. 3 RP (Oct. 3, 2019) at 852. 4 Id. at 853.
3 No. 80657-2-I/4
about Madding resisting being detained. The jury found Madding not guilty of
either charge but convicted him of second degree assault with a domestic violence
enhancement. In a separate trial, a jury found Madding guilty of forgery and of
making a false statement.
Madding appeals.
ANALYSIS
I. Assault Trial
Madding challenges three of the trial court’s evidentiary decisions, arguing
they prejudiced him and require retrial. We review a trial court’s decision to admit
evidence for abuse of discretion.5 A trial court abuses its discretion when its
decision rests on untenable evidentiary grounds or was made for untenable legal
reasons.6
A. Evidence of Prior Misconduct
Madding contends the court erred when it admitted testimony from
Norbisrath under ER 404(b) that he previously assaulted her. The court admitted
the testimony because Norbisrath’s state of mind was relevant to prove Madding
unlawfully imprisoned her through intimidation.7
Norbisrath testified that she was afraid of Madding because “he had
assaulted me before, in the end of January 2018. He pinned me down on the bed,
5 State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014) (citing State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003)). 6 Id. (citing State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997)). 7The court also would have admitted the testimony as proof of motive, but the State chose not to do so.
4 No. 80657-2-I/5
and started hitting me in the face.”8 When she tried to run away, “he put his hand
on the back of my neck, and around my shoulder, and he shoved me really hard,
and I slid, like, six feet across the room.”9
ER 404(b) prohibits the introduction of evidence “to prove the character of a
person in order to show action in conformity therewith.” But that same evidence
may be admitted “for any other purpose.”10 Before admitting evidence under
ER 404(b), the 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.”[11]
The trial court must provide a limiting instruction if requested by the defendant.12
Madding does not argue the court erred by admitting the evidence as proof
of unlawful imprisonment. Instead, he contends the limiting instruction failed to
prevent the jury from considering the evidence for the improper purpose of proving
Norbisrath’s state of mind as it related to the alleged assault. The court gave the
following limiting instruction:
You may have heard evidence concerning alleged misconduct by the defendant that occurred in January of 2018. Such evidence may be considered by you only to the extent that you find it relevant
8 RP (Oct. 2, 2019) at 642. 9 Id. 10 State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). 11 State v. Ashley, 186 Wn.2d 32, 39, 375 P.3d 673 (2016) (quoting ER 404(b)). 12 State v. Russell, 171 Wn.2d 118, 123, 249 P.3d 604 (2011).
5 No. 80657-2-I/6
to the issue of Sierra Norbisrath’s state of mind on May 19, 2018. It is not to be considered by you for any other purpose.[13]
We presume that the jury follows all instructions as given.14 Jury instruction
18 stated that a person commits second degree assault “when he or she with
intent to inflict bodily harm, administers to or causes to be taken by another poison
or any other destructive or noxious substance.”15 Jury instruction 19, the “to
convict” instruction for second degree assault, provided Madding was guilty if the
jury found (1) that on or about May 19, 2018, Madding “administered to or caused
to be taken by Sierra Norbisrath a poison or a destructive or noxious substance;
(2) that [Madding] acted with intent to inflict bodily harm;” and (3) the act occurred
in Washington.16 The limiting instruction restricted the jury’s ability to consider the
prior assault for any reason other than Norbisrath’s state of mind on May 19. The
jury could consider her state of mind that day for the unlawful imprisonment charge
as it related to her intimidation through fear. The specific type of assault contained
in instructions,18 and 19 does not allow for consideration of Norbisrath’s state of
mind when assessing Madding’s guilt. And because assessing a witness’s
credibility is distinct from considering a victim’s state of mind,17 the limiting
13 Clerk’s Papers (CP) at 64. 14State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001) (citing Degroot v. Berkley Constr., Inc., 83 Wn. App. 125, 131, 920 P.2d 619 (1996)). 15 CP at 73. 16 CP at 74. 17 See Ashley, 186 Wn.2d at 46-47 (distinguishing between admissions of prior misconduct evidence for assessing credibility versus proving a victim’s state of mind).
6 No. 80657-2-I/7
instruction prohibited the jury from using the January 2018 assault to assess
Norbisrath’s credibility for the assault charge. Because the limiting instruction
precluded the jury from considering the January 2018 assault for an improper
purpose, Madding fails to show the court abused its discretion.
B. Hearsay
Madding contends the court erred by admitting hearsay testimony from
domestic violence coordinator Reynolds under ER 803(a)(2) as an excited
utterance. During their conversation, Norbisrath said she did not want to take
legal action against Madding because she feared him. Madding contends the
statement was not an excited utterance because the assault occurred hours earlier
and Norbisrath had already spoken about it with a paramedic, a physician, a
nurse, and a police officer.
A hearsay statement is considered sufficiently reliable to be admitted if it
relates to “a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.”18 A hearsay statement can
qualify as an excited utterance if three “closely connected” requirements are met:
(1) a startling event or condition occurred; (2) the statement was made while the
declarant was under the stress or excitement caused by the event or condition;
and (3) the statement related to the event or condition.19 “‘[T]he startling event or
18 ER 803(a)(2). 19State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046 (2001) (citing State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992)).
7 No. 80657-2-I/8
condition need not be the “principal act” underlying the case.’”20 Because an
excited utterance “derives its reliability mainly from the heightened emotional state
of the declarant as a result of the startling event, not from the event itself[,] . . .
‘[f]or purposes of the excited utterance exception, . . . it is the event’s effect on the
declarant that must be focused upon.’”21
Reynolds testified to Norbisrath’s statement during direct examination:
[Prosecutor]: And how did [Norbisrath] appear to you?
[Reynolds]: She looked very tired. Her eyes were, you know, only partially open. She had really slurred speech, and her speech was delayed.
[Prosecutor]: Was she able to communicate with you?
[Reynolds]: She was, but the responses I would get, you know, from her were just really delayed, and she was too tired to do a lot of discussion.
[Prosecutor]: Did you question her about the facts of what happened?
[Reynolds]: I did not.
[Prosecutor]: What did you offer her?
[Reynolds]: I had told her that I had made arrangements with [Ostermann] that we would be meeting at the courthouse here Monday morning to start paperwork for protection orders, and I also informed her that we could document any kind of past acts of violence at that time, if she wanted to do so.
[Prosecutor]: What was her reaction when you said that?
[Reynolds]: She had a physical response to that.
20State v. Young, 160 Wn.2d 799, 810, 161 P.3d 967 (2007) (quoting Chapin, 118 Wn.2d at 686). 21 Id. at 812-13 (alterations in original) (quoting Chapin, 118 Wn.2d at 687).
8 No. 80657-2-I/9
[Prosecutor]: Like what?
[Reynolds]: She immediately shrank back in her hospital bed, and she put her hand up in a big stop-sign motion, and her eyes got really big, and she—her speech was very clear, and she had a verbal response, as well.
[Prosecutor]: What did she say?
[Reynolds]: She said, no, she did not want to have—press any more charges against [Madding], she was really scared of him.[22]
Even if Madding is correct about the effects of the assault having worn off,
we can affirm the trial court’s rulings on any grounds supported by the record,23
and Madding fails to explain Norbisrath’s reaction from the startling event that
occurred during her conversation with Reynolds.
Reynolds told Norbisrath they “would be meeting at the courthouse” in
several days because she had “made arrangements” for Norbisrath to obtain a
domestic violence protection order against Madding based on the current assault
and any past assaults.24 This was news to Norbisrath because Reynolds had
made the arrangements only moments before when speaking with Ostermann
outside her hospital room. Norbisrath reacted immediately, shrinking back, eyes
wide, hand upheld as if saying stop, and actually saying in a clear voice she did
not want to take legal action against Madding because she was “really scared of
22 RP (Oct.3, 2019) at 860-61. 23State v. Grier, 168 Wn. App. 635, 644, 278 P.3d 225 (2012) (citing State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004)). 24 RP (Oct. 3, 2019) at 861.
9 No. 80657-2-I/10
him.”25 Because this reaction satisfies the requirements for admitting an excited
utterance,26 Madding fails to show the court abused its discretion.
C. Resisting
Madding argues the court abused its discretion by admitting Officer Jones’s
testimony about him resisting when being detained. Officer Jones testified about
detaining Madding:
He was kind of pulling away from me while I was trying to detain him. I had a hold of both of his arms, and, you know, he’s pulling me along, as I’m trying to get him detained. And there’s nobody else there yet, no other officer besides me, although I knew they were coming, and I could hear they were getting close because I could hear their sirens, but I—as quickly as I would, to make it safe, I detained him. So I was able to get him detained. And I just put him in a kneeling position in front of me, and I stood behind him so that if he were to continue to try and get away from me, it would be harder for him to do that from a kneeling position as opposed to a standing position.[27]
Assuming without deciding that the trial court erred, Madding fails to demonstrate
prejudice from the improper testimony.
We review improper admission of evidence using the nonconstitutional
harmless error standard.28 The error was harmless unless “‘within reasonable
probabilities, had the error not occurred, the outcome of the trial would have been
materially affected.’”29
25 Id. 26 Woods, 143 Wn.2d at 597. 27 RP (Oct. 3, 2019) at 780 (emphasis added). 28 Gunderson, 181 Wn.2d at 926 (citing Gresham, 173 Wn.2d at 433). 29 Id. (internal quotation marks omitted) (quoting Gresham, 173 Wn.2d at 433).
10 No. 80657-2-I/11
Norbisrath testified in detail about Madding crushing up Xanax pills, laying
her down on the bed in their hotel room, and pressing his hand to her mouth to
make her take them. Norbisrath felt like she had to take them because Madding
was “like a crazy person” who “definitely wanted to do [her] harm” and made her
feel “really scared.”30 She explained that Madding then took out the bottle of
fentanyl spray, put it up her nose, and “kept spraying.” 31 Once she could get up,
she threw up in the bathroom sink, grabbed a paper bag with a few personal
items, and ran into the parking lot. While still outside the hotel, she gave
contemporaneous corroborating accounts to Ostermann and Prades, who both
testified about those accounts. Emergency room physician Dr. Amy Little also
testified that Norbisrath told her about Madding forcing her to take Xanax and
fentanyl. Physical evidence from the scene—broken Xanax pills scattered around
the hotel bed, a spray bottle with fentanyl on the bed, and vomit in the hotel sink—
also corroborated Norbisrath’s testimony. On this record, Officer Jones’s
testimony about Madding’s mild resistance to being detained did not impact the
outcome of the trial. Madding fails to show prejudicial error.
D. Cumulative Error
Madding argues retrial is required due to cumulative error. The cumulative
error doctrine “is limited to instances when there have been several trial errors that
standing alone may not be sufficient to justify reversal but when combined may
30 RP at (Oct. 2, 2019) at 673. 31 Id. at 669.
11 No. 80657-2-I/12
deny a defendant a fair trial.”32 Because Madding has demonstrated, at most, a
single error, there cannot be cumulative error.
II. Forgery and False Statements
Madding argues both convictions from his second trial—forgery and making
a false statement—should be vacated due to insufficient evidence.
We review the sufficiency of the evidence to prove the elements of an
offense by asking “whether viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.”33
A. Making False Statements
Madding challenges his conviction for making false statements to a public
servant, contending the arresting officers did not rely on the fake name he
provided. RCW 9A.76.175 prohibits knowingly making a false or misleading
statement likely to be relied upon by a public servant in the discharge of their
official duties. Officer Jones asked Madding his name, and Madding responded
with his brother’s name: “Joshua Hunter Madding.” Officer Jones ran that name
through dispatch. By running the name through dispatch to verify it, Officer Jones
relied on Madding’s false statement to carry out his duties.34 Because Madding
32 State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). 33State v. Vasquez, 178 Wn.2d 1, 6, 309 P.3d 318 (2013) (internal quotation marks omitted) (quoting State v. Bencivenga, 137 Wn.2d 703, 706, 974 P.2d 832 (1999)). 34See State v. Godsey, 131 Wn. App. 278, 291, 127 P.3d 11 (2006) (holding sufficient evidence supported conviction for making a false statement to a
12 No. 80657-2-I/13
knowingly gave a false statement to Officer Jones and he relied on it to carry out
his official duties, the State proved beyond a reasonable doubt that Madding
violated RCW 9A.76.175.
B. Forgery
The State charged Madding with committing forgery by violating
RCW 9A.60.020(1)(b). Under that statute, “[a] person is guilty of forgery if, with
intent to injure or defraud . . . [h]e or she possesses, utters, offers, disposes of, or
puts off as true a written instrument which he or she knows to be forged.”
Madding does not dispute he possessed fake identification cards, challenging only
the evidence of his “intent to injure or defraud.” The State argues the evidence
was sufficient to infer Madding’s intent because Madding assaulted Norbisrath,
gave a fake name to Officer Jones, and said he had the fake identification cards if
he needed to book a hotel room.
Under RCW 9A.60.020(1), a person intends to “injure or defraud” if they
intentionally inflict material damage or loss by deceit.35 Proof of intent can be
inferred from the defendant’s conduct and the surrounding circumstances when
they “‘plainly indicate such an intent as a matter of logical probability.’”36 Patently
public servant when the defendant lied to police officers about his identity but the officers knew he was lying). 35State v. Simmons, 113 Wn. App. 29, 32, 51 P.3d 828 (2002) (citing BLACK’S LAW DICTIONARY 434 (7th ed. 1999); WEBSTER’S THIRD NEW INT’L DICTIONARY 1164 (1986)). 36 Vasquez, 178 Wn.2d at 8 (quoting State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991)).
13 No. 80657-2-I/14
equivocal evidence does not plainly indicate intent.37 When a defendant is
charged with forgery, “[p]ossession alone is not sufficient to infer intent . . . but
possession together with ‘slight corroborating evidence’ might be.”38
In State v. Vasquez, the Supreme Court vacated a forgery conviction due to
insufficient evidence of the defendant’s intent to injure or defraud.39 When the
defendant was stopped and searched by a store security guard, the guard found a
Social Security card and permanent resident card in the defendant’s wallet. 40 The
defendant admitted to the guard that he bought the cards from a friend.41 The
defendant told the guard he was working in the area but also indicated he was
unemployed.42 The State charged the defendant with two counts of forgery and, at
trial, presented testimony from federal government witnesses that the defendant
had never been issued a Social Security card, was not legally allowed to be
employed in the United States without a Social Security card, and did not possess
an authentic permanent resident card.43 The security guard also testified. The
jury found the defendant guilty on both counts.44
37 Id. (citing Woods, 63 Wn. App. at 592). 38 Id. (quoting State v. Esquivel, 71 Wn. App. 868, 870, 863 P.2d 113 (1993)). 39 178 Wn.2d 1, 4, 309 P.3d 318 (2013). 40 Id. 41 Id. at 5. 42 Id. 43 Id. at 5. 44 Id. at 6.
14 No. 80657-2-I/15
The court vacated both convictions.45 First, the security guard’s testimony
established mere possession, and the fact of “possession alone does not support
an inference of intent.”46 Second, the evidence did not establish that the
defendant attempted to pass off the forged documents as authentic. 47 Third, the
evidence about the defendant’s work history was equivocal, and the State
presented no evidence he even attempted to use the forged documents to defraud
an employer “or had ever used the forged cards in any way.”48
In State v. Simmons, by contrast, the court upheld a conviction for forgery
when an inmate passed a counterfeit bill.49 The inmate gave a counterfeit $20 bill
to be deposited into his account for purchases at the jail’s commissary.50 Because
the inmate did not dispute on appeal that he knew the bill was counterfeit,
depositing the bill demonstrated his intent to defraud the jail.51
The circumstances here are similar to Vasquez. Madding immediately
admitted to Officer Jones that the identification cards were fake and that he had
purchased them online. The State argues the jury could have inferred that
Madding booked his hotel room under the name on his fake identification card.
Officer Jones testified that Madding explained “he used them if he needed to, like,
45 Id. at 18. 46 Id. at 7. 47 Id. 48 Id. 49 113 Wn. App. 29, 33, 51 P.3d 828 (2002). 50 Id. at 30-31. 51 Id. at 33.
15 No. 80657-2-I/16
stay somewhere or book a room at a hotel because of his DOC warrants.”52 But
the only evidence about the name used to book the hotel room was it was
“associated with Mr. Madding.”53 None of the State’s witnesses testified directly
about the name used to book the room. The State presented no evidence that
Madding used or even attempted to use his fake identification cards. Madding did
not attempt to use his fake identification card to defraud the officers, identifying
himself as “Joshua Hunter Madding” and not as “Nicholas Pavlik.” Thus, it is as
likely Madding used the fake name he gave Officer Jones to book the room, as it is
likely he used his own name, as it is likely he used the fake name on his
identification card. “‘Intent may not be inferred from evidence that is patently
equivocal.’”54
The State also argues the evidence was sufficient because “the only reason
Madding would possess a forged driver’s license with his real photograph and the
name Nicolas Pavlik would be to falsely represent himself as Pavlik.”55 But
accepting this argument absolves the State of its burden to prove more than mere
possession. This is the same argument rejected by our Supreme Court in
Vasquez.56
52 RP (Nov. 19, 2019) at 264. 53 Id. at 289. 54 Vasquez, 178 Wn.2d at 8 (internal quotation marks omitted) (quoting Woods, 63 Wn. App. at 592). 55 Resp’t’s Br. at 33. 56See Vasquez, 178 Wn.2d at 13 (holding that “mere possession of forged documents, without evidence of an intent to injure or defraud, cannot sustain a forgery conviction”).
16 No. 80657-2-I/17
Finally, the State urges affirmance because the jury convicted Madding
after being provided legally sufficient jury instructions. But the State cites no
authority showing that a conviction cannot be vacated for insufficient evidence
absent an erroneous jury instruction.
Unlike Simmons where the State presented evidence that the inmate
actually used the counterfeit bills, the State here presented no evidence of
Madding ever attempting to use his fake identification card to inflict material
damage or loss by deceit. As in Vasquez, Madding’s mere possession cannot be
used to prove intent, and the circumstantial evidence used to prove his intent was
equivocal. The evidence did not support Madding’s conviction for forgery. 57
Therefore, we affirm in part, reverse in part, and remand for the vacation of
his forgery conviction.
WE CONCUR:
57Because this is dispositive of Madding’s other assigned errors for the forgery conviction, we do not address them.