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

v. CHRISTOPHER MICHAEL CRUMP, Appellant. ) ) ) ) ) ) ) ) ) No. 38963

- 4

- III

UNPUBLISHED OPINION

P ENNELL , J.

— Christopher Michael Crump appeals his conviction for possession of a stolen motor vehicle. He also challenges the constitutionality of various legal financial obligations (LFOs) imposed in relation to this and a simultaneous malicious mischief conviction. We reverse Mr. Crump’s stolen motor v ehicle conviction without prejudice as the State’s charging document failed to recite all elements of the offense.
W e reject Mr. Crump’s constitutional challenge to his court

- ordered LFOs , but nevertheless remand so that Mr. Crump may take advantage of rec ent statutory amendments that afford relief to indigent defendants. FACTS Christopher Crump was pulled over by police on suspicion of driving a stolen vehicle and having expired license plate tabs . During the stop, the police confirmed the 

### FILED JANUARY 30, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 38963

- 4

- III State v. Crump

2 vehicle was stol en and Mr. Crump was placed under arrest. In a post

- arrest search of the vehicle, police found two hats: a red hat and a black and red New England Patriots hat. Mr. Crump was charged with possession of a stolen vehicle and released on electronic home monit oring. During his pretrial release, Mr. Crump tampered with the monitoring device, causing damage. He was then charged with two count s of malicious mischief. At trial, Mr. Crump did not dispute he possessed the car or that he damaged the monitor ing device

. He claimed he borrowed the car from a n unnamed friend and that he did not know the car was stolen until the police told him. The State ’s evidence included testimony from a law enforcement officer about his past interactions with Mr. Crump. The officer sta ted he had seen Mr. Crump about

a dozen times in the past and Mr. Crump was often wearing a red hat. The State then sought to elicit testimony from the officer about a Facebook profile photo that depicted
Mr. Crump wearing a red Chicago Bulls hat. Mr. Crum p objected to the admission of the photo, arguing it was irrelevant and would serve only to suggest that he had been the subject of a prior police investigation. The State argued the photo was relevant to prove
Mr. Crump possessed the car because it showed he wore a hat similar to those found in the car, thus implying he possessed it “ ‘ as opposed to just, like, maybe he ’ s just drivingNo. 38963

- 4

- III State v. Crump

3 it on a whim. ’ ” 5 R ep . of Proc

. (Mar. 22, 2022) at 288

- 89. The trial court overruled the objection and allowed the evidence. The jury found Mr. Crump guilty of possessing a stolen motor vehicle, and one count of second degree malicious mischief. The trial court ordered Mr. Crump to pay restitution in the amount of the victim s ’ losses, with $1,001.00 payable to Walla Walla
Court Services for the damaged electronic monitoring equipment and $1,534.50 to the owner of the stolen vehicle. The court also i mposed a $500 .00 crime victim penalty
assessment. Mr. Crump now appeals. ANALYSIS Sufficiency of charging document Mr. Crump challen ges the sufficiency of the State’s information, arguing it did not include the essential element of knowledge. Because this claim was not raised at trial,

we must liberally review the charging document in favor of validity. “An information is sufficient un der this standard if it contains some language from which notice of each required element of the offense can be found.” State v. Level , 19 Wn. App. 2d 56, 60,
493 P.3d 1230 (2021). All elements must be included, even a nonstatutory element suchNo. 38963

- 4

- III State v. Crump

4 as knowledg e. Id. “If facts supporting one or more elements cannot fairly be implied, prejudice is presumed and the charge must be reversed.” Id

. Here, Count 1 of the amended information alleged: That the said Christopher Michael Crump in the County of Walla Walla, S tate of Washington, on or about September 15, 2021, did unlawfully possess a stolen motor vehicle, to

- wit: 1994 Ford Escort, the property of Stephan R. Hansell ; . . . . Clerk’s Papers at 38. This case is on all fours with our decision in Level . The crime of unlawful possession of a stolen motor vehicle includes a nonstatutory element of knowledge.
Even under the liberal construction standard, a charging document that merely accuses a defendant of “ ‘ unlawful ’ ” possession of a “stolen” motor vehicle is insuf ficient to convey the element of knowledge. Level , 19 Wn. App. 2d at 63. The State argues this court should decline to follow Level because its holding is “directly contrary ” to the Washington Supreme Court ’s decision in State v. Porter , 186 Wn.2d 85, 375 P.3d 664 (2016)

. See Br. of Resp’t at 8

- 9. The State is wrong

. Porter is factually and legally distinct from this case

. In Porter , the Supreme Court held that a charging document need not allege a statutory definition of an element of the offense ; t he cou rt did not hold that an information need not allege a nonstatutory element. If anything, Porter su pports our conclusion thatNo. 38963

- 4

- III State v. Crump

5 reference to the nonstatutory element is required . The charge in Porter involved unlawful possession of a stolen motor vehicle. The court noted the charging document “alleged that [ Clifford ] Porter knowingly possessed property that he knew to be stolen.” Porter , 186 Wn.2d at 92. According to the court, this language “sufficient ly articulate d the essential elements of the crime.” Id

. N othing in Porter suggests the State’s information would have passed muster had it excluded reference to the mens rea element of knowledge

. T he State’s information here failed to adequately allege the crime of possession of a stolen motor vehicle

. Mr. Crump ’s conviction for this charge must therefore be dismissed without prejudice. Evidentiary c hallenge Mr. Crump contends the trial court committed prejudicial error by admitting evidence of Mr. Crump’s Facebook profile photo found by police during a prior inv estigation. Although the admissibility of the photo is technically moot given our disposition of the stolen motor vehicle charge, we address Mr. Crump’s claim in the
event that there is a retrial of the stolen motor vehicle charge. “The fundamental limitat ion on the information that the parties can present
to the jury is that the evidence must be relevant.” Miguel A. Méndez, E VIDENCE :No. 38963

- 4

- III State v. Crump

6 T HE C ALIFORNIA C ODE AND THE F EDERAL R ULES A P ROBLEM A PPROACH § 1.01 , at 2 (1995). Relevance is a necessary, but not sufficie nt, condition for the admissibility of evidence. To be admissible, evidence must be relevant. ER 402. But not all relevant evidence is admissible. Id . Sometimes relevant evidence must be excluded on constitutional grounds “or as otherwise provided by statu te” or rules. Id

. Evidence is relevant if it tends to make a fact of consequence more or less likely to be true than it would be without the evidence. ER 401.
T he evidence at issue here is a two

- year - old picture of Mr. Crump wearing a red Chicago Bulls ha t in a Facebook photo. According to the State, the photo i s relevant to show Mr. Crump possessed the vehicle at issue in this case. The State’s reasoning i s that the similarity between the hat in the photo and the hats found in the stolen vehicle suggest
t hey are owned by the same person. And if the hats in the vehicle belonged to Mr. Crump, this would suggest that he was in primary possession of the vehicle, contrary to his claim that he had merely borrowed the car from a friend. We disagree that the Faceb ook photo i s relevant. The hat depicted in the Facebook photo i s not the same as either of the hats found in the vehicle. This circumstance alone dooms the State’s theory of relevance. Hats are a common accessory . The fact that
Mr. Crump often wears hats d oes not tend to suggest that he owned either of the twoNo. 38963

- 4

- III State v. Crump

7 hats found in the car. To be sure, the fact that the hats were found in a car driven by
Mr. Crump tends to suggest that Mr. Crump was the owner of the hats. But the fact that
Mr. Crump has been seen o n past occasions wearing hats does not make his ownership

or possession of the hats in the car more probable. Cf

. ER 401 (defining relevance). The State emphasizes that the hats in the car were red and that Mr. Crump often wears red hats. This is not a hel pful detail . Red is an exceedingly common color. Of the 32 teams in the National Football League, 1 1 use the color red

. 1 Of the 30 teams in Major League Baseball, 17 use the color red. 2 And in the National Basketball Association,
12 of the 30 teams use the color red. 3 This of course is just a small sampling of hat types. Red is also a common attribute in hats associated with other professional and

1 Buffalo Bills, New England Patriots, Pittsburgh Steelers, Houston Texans, Tennessee Titans, Kansas City Chiefs, New York Giants, Atlanta Falcons, Tampa Bay Buccaneers, Arizona Cardinals, and San Francisco 49ers. Teams , N AT ’ L F OOTBALL L EAGUE , https://www.nfl.com/teams/ (last visited Jan. 2 9 , 2024). 2 Arizona Diamondbacks , Boston Red Sox, Chicago Cubs, Cincinnati Reds, Cleveland Guardians, Los Angeles Ang el s, Los Angeles Dodgers, Miami Marlins, Minnesota Twins, New York Yankees, Philadelphia Phillies, Seattle Mariners, St. Louis Cardinals, Texas Rangers, Toronto Blue Jays, and Washington Nationals. An 18 th team, t he Atlanta Braves uses the similar but apparently distinct color of scarlet. Teams , M AJOR L EAGUE B ASEBALL , https://www.mlb.com/team (last visited Jan. 2 9 , 2024). 3 Atlanta Hawks, Chicago Bulls, Denver Nuggets, Detr oit Pistons, Houston Rockets, Los Angeles Clippers, Miami Heat, New Orleans Pelicans, Philadelphia 76ers, Portland Trailblazers, Toronto Raptors, and Washington Wizards. Teams , N AT ’ L B ASKETBALL A SS ’ N , https://www.nba.com/teams (last visited Jan. 2 9 , 2024).No. 38963

- 4

- III State v. Crump

8 nonprofessional sports teams, political enthusiasts, and patriotic Americans. The fact that a particular hat i s red is not sufficient to suggest that the hat may be associated with any one person. It could be that what the State is trying to say is that Mr. Crump is the type of person who prefers red hats. This is speculative. Given the ubiquity of the color red, the fact that Mr. Crump may often be seen wearing a red hat does not suggest he has picked

ou t his hats for their red color, as opposed to some other reason. But even if there were

some truth to the idea that Mr. Crump is uniquely interested in hats that a re red, the implications of this suggestion would appear improper. As many people know

— i ncluding most likely many prospective jurors

— red is a color associated with the Norteños street gang. The suggestion that Mr. Crump might be associated with the Norteño s is highly prejudicial and wholly irrelevant to the charged crime

. See State v. Juarez DeLeon , 185 Wn.2d 478, 490

- 91, 374 P.3d 95 (2016)

. Th e State is prohibited from introducing evidence that implies gang association without a strong theory of relevance. See i d. The Facebook photo depicting Mr. Crump wearing a red hat i s not relevant.
It should have been excluded from evidence under ER 402. 4

4 Because the hat is not relevant, it has no probative value. Thus, there is no need for balancing probative value versus prejudicial effect under ER 403.No. 38963

- 4

- III State v. Crump

9 LFOs Mr. Crump contends that by ordering restitution, interest, and a crime victim penalty assessment without fir st considering his ability to pay, the trial court violated h is constitutional right to be free from excessive fines. We disagree with this constitutional challenge. Nevertheless, recent statutory changes provide Mr. Crump some relief. Our case law holds t hat restitution tied to a victim’s losses, interest, and penalties such as a special penalty assessment , do es not violate the excessive fines clause. See State v. Ellis , 27 Wn. App. 2d 1, 13, 530 P.3d 1048 (2023); State v. Ramos , 24 Wn. App. 2d 204, 229

- 23 0, 520 P.3d 65 (2022). Here, Mr. Crump ’s restitution award was tied to the victims ’ actual losses. Thus, he states no constitutional claim. 5 Although Mr. Crump ’s constitutional challenge fails, he is entitled to the benefit of several recent statutory amen dments given his case is pending direct review. See State
v. Ramirez , 191 Wn.2d 732, 748

- 49, 426 P.3d 714 (2018); Ellis , 27 Wn. App. 2d at 16. Under RCW 9.94A.753(3)(b), Mr. Ellis may seek relief from restitution and interest ordered payable to a state age ncy based on an inability to pay. 6 Relief from interest on

5 Given our disposition of the stolen motor vehicle charge, the only restitution order at issue in t his appeal pertains to the damage to the malicious mischief charge. 6 It is unclear whether Walla Walla Court Services qualifies as a state agency. That issue can be resolved on remand.No. 38963

- 4

- III State v. Crump

10 restitution is also possible under RCW 10.82.090(2). Finally, because the trial court has found Mr. Crump indigent, Mr. Crump is entitled to waiver of the $500 crime victim penalty assessment unde r RCW 7.68.035(4). We remand this matter so that Mr. Crump may take advantage of the foregoing statutory provisions. CONCLUSION Mr. Crump’s conviction for unlawful possession of a motor vehicle is reversed without prejudice. The conviction for malicious mi schief is affirmed, but we remand for resentencing consistent with the terms of this decision

. 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.

_________________________________ Pennell, J.
WE CONCUR:

______________________________ _________________________________ Lawrence

- Berrey, A.C.J. Staab, J.