### FILED FEBRUARY 28, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,

V. 

### JOHNNA D. SMITH, Appellant. ) ) ) ) ) ) ) ) ) 

### No. 

### 33960-2-111

UNPUBLISHED OPINION

FEARING, C.J. -ASpokane Countyjury convictedJohnna Smith ofsecond degree robbery ofheadphones from apharmacy store. On appeal, Smith assigns errorto evidentiary rulings by the trial court. She also challenges the sufficiency ofevidence for her conviction. We rejecther arguments. FACTS On July 

### 30, 2014, Rite Aid Pharmacy assetprotection employees Matthew McDaniels and John Reynolds worked in the evening at a north Spokanepharmacy store. Around 5:45 p.m., they monitored, from a surveillance room's cameras, hightheft areas inside the store. On one ofthe cameras, the duo observed a female grab headphones, a hightheftproduct. Aftertakingthe headphones, the lady pacedthe aisle andthen ambled to coolers inthe store, where she selected a bottle ofwater. Next she walkedto the candy

# I j No. 33960-2-III State v. Smith aisle, near the front ofthe store, where she concealed the headphones in a large bag. Once Matthew McDaniels espied the lady conceal the headphones, he leftthe surveillance room and positioned himselfnear the front door ofthe store. John Reynolds maintained observation ofthe woman through the camera system. The woman paid for the bottled water, but did not pay for the headphones. Once the woman passed through the security systemthat detects unpaid merchandise, Matthew McDaniels approached the woman, identified himselfas a Rite Aid asset protection employee, and asked her for the merchandise for which she may have neglected to pay. The woman lowered her head and tried to exit the door, butMcDaniels blockedher egress. The lady then used her hands, pushed McDaniels, and exclaimed: "You can't touch me," "You can't stop me," and "Letme go." Report ofProceedings (RP) at 77. After failing to shake McDaniels, the woman yelled for help, pushed a set ofsliding doors offtheir hinges, and fled outside. When the woman departed the Rite Aid pharmacy, a male exited an older Honda parked outside the store. The man approached Matthew McDaniels and shouted profanities. McDaniels identified himself, and the man threw two punches at him. The first punch missed, but the second blow struck McDaniels' chest. The male yelled to the lady to enter the car and "go, go, go." RP at 79. The female drove away, and the man escaped on foot. John Reynolds exited the building and pursued the Honda on foot.

2No. 33960-2-III State v. Smith

McDaniels noted the Honda's license plate number and called 911. The woman drove

near the fleeing man, and he entered the vehicle. At 6:43 p.m., on July 30, OfficerMichele Kernkamp respondedto the Spokane Rite Aid store in response to Matthew McDaniels' emergency call. Officer Kernkamp searched for the name ofthe owner ofthe Honda on herpatrol car's computerby referencing the Honda license plate number. The search unearthed Corey Knudsvig as registered owner. Kernkamp further searched, through her computer, to determine if Spokane police had earlier contact with Knudsvig. Kernkamp discovered that Officer Craig Hamilton earlier interfaced with Knudsvig. On April 7, 2014, Officer Hamilton stopped a 2003 Chevrolet with four individuals inside. Two ofthe passengers were Corey Knudsvig and Johnna Smith. On the evening ofJuly 30, OfficerMichelle Kernkamp retrieved a photograph of Johnna Smith, perhaps fromthe Department ofLicensing, from Kernkamp's computer. Kernkamp, while at the Rite Aid Store, comparedthe photograph ofJohnna Smith with the store video. Officer Kernkamp could not discern ifthe lady inthe photograph was the same person shown in the video. Officer Kernkampjourneyedto Corey Knudsvig's residence, but did not find Knudsvig present. On a later date, Spokane Detective Jerry Hensley met with Matthew McDaniels and John Reynolds at the Rite Aid store. Hensley showedMcDaniels a photomontage.

3No. 33960-2-III State 

### v. Smith

McDaniels picked the photo ofJohnna Smith from the photomontage, butReynolds could not identify anyone from the photographs. Detective Jerry Hensley interacted twice with Johnna Smith in 2011, with each interaction lasting fifteen minutes. Detective Hensley maintained that, throughthis contact, he became familiar with Smith's facial and body features. While atthe Rite Aid store, Hensley watched the surveillance tape. He identified Smith on the video tape because ofthe two earlier interactions and his creation ofthe photomontage inthe investigation ofthe Rite Aidtheft. PROCEDURE The State ofWashington charged Johnna Smithwith second degree robbery as a result ofthe headphones theft at the Rite Aidpharmacy on July 30, 2014. Johnna Smith moved in limine to exclude evidence ofher contact in 2014 with Officer Craig Hamilton while with Corey Knudsvig. During a pretrial hearing, Smith clarifiedthat she also sought exclusion oftestimony by Detective Jerry Hensley ofhis 2011 contacts with Smith andhis identification ofher from the surveillancevideo. The State told the trial court that Detective Hensley's 2011 interaction with Smithwas during Smith's role as a confidential informant, butthe State agreed notto mention the reason for Hensley's earlier contact. The trial court ruled: As far as the testimony ofDetective Hensley is concerned, it looks like he was the one [who was] responsible were [sic] puttingtogetherthe photo montage that a witness used to identify Ms. Smith. It also appears 4

# I

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## j No. 33960-2-III State v. Smith

that he has had some contact with her in the past. Maybe she was working as an informant or something ofthat nature. The argument is that the prejudice ofthatrelationship outweighs the probative value. Here, identity is an issue. It looks like he reviewedthe video, possibly used that toputtogether the photo montage afterhe realized who he thought the person in that video depicted. It is prejudicial, but the relevance outweighs the probative-or, the prejudicial value because otherwise any person who might have had contact with law enforcement in the past would be immune from havingthatpersontestify. RP at 32-33. The trial court denied Smith's motion in limine. Duringtrial, Matthew McDaniels identifiedthe womanwho committedthe robbery as the woman sitting at defense counsel's table, Johnna Smith. McDaniels stated he came within inches ofSmith during theirtussle at the Rite Aid store. l\fatthew McDaniels, during testimony, could not recall on which day ofthe week the theft occurred, the temperature that day, whathe ate for lunch that day, orwhattype ofshoes the female robberwore. McDaniels also testified as follows: Q (By Mr. Ames [Defense counsel]) Are you testifying tothisjury thatyou couldnot be mistaken aboutyour selection? A I testified that I could be mistaken about some things butthe fact that I amtestifying that that is Ms. Smiththat I encountered that day, I'm 100 percent. Q So you're a hundred percent absolutely positive that it was Ms. Smith? A Correct. RP at 115. During cross-examination ofMatthew McDaniels by Johnna Smith's counsel, McDaniels agreed that the woman in the Rite Aid store surveillance video bore a marking



### 5No. 33960-2-111 State v. Smith

on the back ofher neck. Defense counsel then attempted to establish that Smith lacked this marking at least at the time oftrial. The following colloquy occurred: Q (By Mr. Ames [Defense counsel]) Now, what ifl told youthat my client, Ms. Smith, has no similarmark on the back ofherneck? MR. NAGY [State's counsel]: Objection, YourHonor. THE COURT: Sustained. Facts not in evidence. MR. AMES: YourHonor, I'd like my clientto be able to approach the witness and showhim the back ofher neck. MR. NAGY: Objection, YourHonor. Relevance. It's a year and a halfafter the fact. THE COURT: Overruled. MR. AMES: That means you can. THE DEFENDANT: Oh. MR. AMES: I'd like to approach, YourHonor. THE COURT: Yes. You can go ahead and have a seat. MR. AMES: No. I'd like her to stay for a minute, ifl could. THE COURT: Go ahead. Q (By Mr. Ames) I'm going to show you what's been marked defense Exhibit 103. I know you haven't seen thatbefore. MR. AMES: Go ahead and hold yourhair up. Q (By Mr. Ames) But do you recognize it? A Yes. Itcould be the same person. Q Doesn't it appear to be a picture ofMs. Smith? MR. AMES: Let him look at yourhead. Go ahead and look this way. A. Itcould be, yes. RP at 109-10. We are not convincedthis record shows Smith lacked a mark on the day oftrial. Ajury convicted Johnna Smith ofrobbery in the second degree. The trial court sentenced herto five years· and three months ofconfinement.

6No. 33960-2-III State v. Smith

LAWAND ANALYSIS On appeal, Johnna Smith argues that the trial court errantly allowed Detective Jerry Hensley to testify, in violation ofER402 and 404(b), about his earlier contacts with Smith. Smith also contends that the State failed to present sufficient evidence to support her conviction for second degree robbery. We disagree withboth arguments. Jerry Hensley Testimony Johnna Smith contends the trial court erred by denying her motion in limine to preclude Detective Jerry Hensley from testifying about his earlier contacts with Smith. She claims the testimony violated ER402 and 404(b) because the evidence was irrelevant, the danger ofunfair prejudice outweighed any probative value ofthe testimony, and the testimony covered inadmissible evidence ofprior crimes. The State responds that the trial court did not abuse its discretion when admitting Detective Hensley's testimony because the testimony did not reference Smith committing wrongs and, even ifHensley's comments referred to other wrongs, the State offered the testimony for identity and not to show Smith acted in conformance with earlier misdeeds. We address separately the arguments forwarded under each evidence rule. ER402 Johnna Smith focuses her assignment oferrorwith regard to evidence rulings on ER404(b). Nevertheless, she also mentions violations ofER402 and 403. A discussion ofER402 begins with ER401. ER401 declares: 7No. 33960-2-III State v. Smith

"Relevant evidence" means evidence having any tendency to make the existence ofany fact that is ofconsequence to the determination ofthe action more probable or less probable than it would be without the evidence. In tum, ER402 reads: All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute, by these rules, orby otherrules or regulations applicable in the courts ofthis state. Evidence which is not relevant is not admissible. This court reviews relevance evidentiary rulings for manifest abuse ofdiscretion. State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). Discretion is abused only when

no reasonable person would have decided the issue as the trial court did. State v. Rice, 110 Wn.2d 577, 600, 757 P.2d 889 (1988). Relevance presents a very low bar. Mutual of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 729, 315 P.3d 1143 (2013). To be relevant, evidence must meet two requirements: (1) the evidence must have a tendency to prove or disprove

a fact (probative value), and (2) that fact mustbe ofconsequence in the context ofthe other facts and the applicable substantive law (materiality). Davidson v. Metropolitan Seattle, 43 Wn. App. 569,573, 719 P.2d 569 (1986). The relevancy ofevidence depends

on the circumstances ofeach case and the relationship ofthe facts to the ultimate issue. Chase v. Beard, 55 Wn.2d 58, 61,346 P.2d 315 (1959), overruledon othergrounds, In re Marriage of Brown, 100 Wn.2d 729,675 P.2d 1207 (1984). Facts tending to establish a party's theory ofthe case will generally be found to be relevant. State v. Mak, 105 8No. 33960-2-III State v. Smith

Wn.2d 692, 703, 718 P.2d 407 (1986). Johnna Smith argues that Detective Jerry Hensley's testimony about earlier encounters with Smithprovided no relevant information to thejury with respect to the theft at the Rite Aid store. We disagree. Identity ofthe thiefwas the primary issue at trial. Detective Hensley's earlier interactions with Smithtended to corroborate his identification ofher in the Rite Aid surveillance video. Eventhough the two 2011 encounters only totaled thirty minutes, the contact supported his ability to identify Smith from the video. ER403 ER403 declares: Although relevant, evidence may be excluded ifits probative value is substantially outweighed by the danger ofunfairprejudice, confusion of the issues, or misleading thejury, or by considerations ofundue delay, waste oftime, or needless presentation ofcumulative evidence. When administering ER403, we recognize that nearly all evidence worth offering in a contested case will prejudice one side or the other. Carson v. Fine, 123 Wn.2d 206, 224, 867 P.2d 610 (1994). Evidence is not rendered inadmissible under ER403justbecause it may be prejudicial. Carson v. Fine, 123 Wn.2d at 224. Under ER403, the court is not concerned with ordinary prejudice. Carson v. Fine, 123 Wn.2d at 224. Courts variously define "unfairprejudice" for purposes ofER403. Suchprejudice results from evidence ofscant or cumulativeprobative force, dragged in by the heels for

9No. 33960-2-III 

### State v. Smith

the sake ofits prejudicial effect. 

### UnitedStates v. Roark, 753 F.2d 991,994 (11th Cir. 1985). In determining prejudice, the linchpin word is "unfair." 

### State v. Rice, 48 Wn. App. 7, 13, 737 P.2d 726 (1987). Washington cases agree that unfairprejudice is caused by evidence likely to arouse an emotional response ratherthan a rational decision among thejurors. 

### Carson v. Fine, 123 Wn.2d at 223; 

### Lockwoodv. AC&S, Inc., 109 Wn.2d 235, 257, 744 P.2d 605 (1987); 

### State v. Cameron, 100 Wn.2d 520, 529, 674 P.2d 650 (1983). UnderER403, the burden ofshowing prejudice is onthe party seekingto exclude the evidence. 

### Carson v. Fine, 123 Wn.2d at 225. A presumption favors admissibility under ER403. 

### Carson v. Fine, 123 Wn.2d at 225. Because ofthe trial court's considerable discretion in administering ER403, reversible error is found only in the exceptional circumstance ofa manifest abuse ofdiscretion. 

### State v. Gould, 58 Wn. App. 175, 180, 791 P.2d 569 (1990). Johnna Smith argues thatDetective Jerry Hensley'stestimony only created an extraordinarilyprejudicial implication that she was a person who had frequent run-ins with a detective whose work was focused on major crimes. We disagree. Nothing in Hensley's testimony impliedthat Smith was investigated orresponsible for wrongdoing. As the State emphasizes, Hensley could have encountered Smith at a social or church function. Smith assumes ajuror's emotions are aroused when thejurorhears that a defendant had earlier interactions with law enforcement. Nevertheless, thejurynever heard the context ofSmith's contact with Hensely, leaving the testimony mundane. 10No. 33960-2-III State v. Smith Although evidence ofsome law enforcement interactions may be prejudicial ifthe officer relates details, the circumstances in this appeal show little, ifany, prejudice. ER 404(b) Washington's ER404(b) reads, in relevant part: Other Crimes, Wrongs, orActs. Evidence ofother crimes, wrongs, or acts is not admissible to prove the character ofa person in orderto show action in conformity therewith. 

### It may, however, be admissible for other purposes, such as proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake or accident. (Boldface omitted.) A trial court's interpretation ofER404(b) is a question oflaw that this court reviews de novo. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). ER404(b) prohibits evidence ofpastmisdeeds solely to prove a defendant's criminal propensity. State v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008 (2006). Evidence of prior bad acts is presumed inadmissible, and any doubts as to admissibility are resolved in favor ofexclusion. State v. Vy Thang, 145 Wn.2d 630,642, 41 P.3d 1159 (2002). ER 404(b) precludes evidence ofdefendant's otherbad acts to showthe defendant's propensity for criminal activity. When demonstrated, however, such evidence may be admissible for other purposes such as proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake or accident. State v. Powell, 126 Wn.2d 244,258, 893 P.2d 615 (1995). Johnna Smith contends the testimony by Detective Jerry Hensley violated ER 404(b). Detective Hensley testified that in 2011 he had personal contact with Smith two 11No. 33960-2-III State v. Smith times, each occasion lasting fifteen minutes. Through those contacts, Hensley became familiar with Smith's facial and body features. Detective Hensley testified that he identified Smith on the surveillance tape because ofhis contacts with her in 2011 and his involvement in creating the photomontage in this case. Even ifa tenuous connection existed between contactwith a detective and earlierbad acts, the trial courtproperly admitted Detective Hensley's testimony as proofofidentity. The State offered the testimony to prove identity, a key issue at trial, not propensity to commit a crime. Sufficient Evidence Johnna Smith contends the State failed to provide sufficient evidence to support her conviction for second degree robbery. The criminal code defines "robbery" as: A person commits robbery when he or she unlawfully takes personal property from the person ofanother or in his or herpresence against his or her will by the use orthreatened use ofimmediate force, violence or fear of injury to that person or his or herproperty orthe person orproperty of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking; in either of which cases the degree offorce is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge ofthe person from whom taken, such knowledge was prevented by the use offorce or fear. RCW 9A.56.190. In her brief, Johnna Smith examines the legal standard for review ofa sufficiency ofthe evidence challenge and then asserts the State failed to meet its burden at trial. She does not, however, isolate what element or elements ofsecond degree robbery the State

12No. 33960-2-111 

### State v. Smith purportedly failed to prove. Thus, we encounter difficulty in analyzing her contention. Johnna Smith attacks the credibility ofDetective Jerry Hensley's identification of her, criticizes Matthew McDaniels as unable to recall details ofhis encounterwith her, critiques McDaniels because ofhis mistaking Smith's height, emphasizes that she lacked

a mark on her neck at the time oftrial, and describes the Rite Aid surveillance video as grainy. We consider these assaults on the State's evidence to go to the weight ofthe evidence for thejury to review, not the sufficiency ofthe evidence. The State presented positive identifications from both McDaniels and Hensley as to Smith beingthe thief. Evidence is sufficient ifa rational trier offact could find each element ofthe crime beyond a reasonable doubt. 

### State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). Both direct and indirect evidence may support thejury'sverdict. 

### State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986). This court draws all reasonable inferences in favor ofthe State. 

### State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). The State

assumes the burden ofproving otherwise unnecessary elements ofthe offense when such elements are included without objection in ajury instruction. 

### State v. Willis, 153 Wn.2d 366, 374-75, 103 P.3d 1213 (2005). Only the trier offact weighs the evidence andjudges the credibility ofwitnesses. 

### State v. Carver, 113 Wn.2d 591,604, 781 P.2d 1308, 789 P.2d 306 (1989). Relying on 

### State v. Vasquez, 178 Wn.2d 1,309 P.3d 318 (2013), Johnna Smith asserts that we must review whether Matthew McDaniel's certainty ofidentification was 13No. 33960-2-III State v. Smith

reasonable and hold that it was not. In Vasquez, a store security guard found a forged social security card and permanentresident card in the defendant's wallet when searching the defendant, a suspected shoplifter. Our Supreme Court reversed two convictions of forgery because the State failed to prove sufficient evidence ofintent. The only evidence ofintent to defraud was the defendant's possession ofthe forged cards. Our Supreme Courtheld that inferring intent from possession relieved the State ofits burden to prove all elements ofthe crime. State v. Vasquez lacks relevance to this appeal. Vasquez involvedthe sufficiency ofevidence regarding intent to defraud, not sufficiency ofevidence ofthe identity ofa shoplifter. CONCLUSION We affirm the conviction ofJohnna Smith for second degree robbery. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

# ~**~** Fearing~t WE CONCUR: 

# gp9.Q j 14