### FILED SEPTEMBER 1, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, Respondent, 

### v. DANIEL BLIZZARD, Appellant. 

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### ) No. 32866-0-111

PUBLISHED OPINION

PENNELL, J.
- Dueprocess requires a fair trial in a fair tribunal. Daniel Blizzard argues he was deniedthis basicprotection after his trialjudgereceived a letter from the countyprosecutor containing inflammatory accusations of judicialbias. Accordingto Mr. Blizzard, the letter's contents were so explosive they renderedthetrialjudgeincapable of fairly presiding overthe proceedings. We are unpersuaded. Thejudiciary is notvulnerable tomanipulationbypolitically charged criticism. In extreme cases, hurtful, personal attacks against ajudgemay makeNo. 32866-0-111 

### State v. Blizzard
recusal unavoidable. This is not such a case. We reject Mr. Blizzard's broad attack against his conviction, along with his other claims ofmore discrete error. Thejudgment and sentence is affirmed. 

## BACKGROUND OnMay 25, 2013, real estate broker Vern Holbrookwas found lying in a pool of blood in a vacant house he reportedly showed to a couple earlierthat day. He had been severely beaten and his throat was cut. Mr. Holbrook later died as a result ofthe injuries sustained in the attack. An investigation ofMr. Holbrook's cell phone records and witness interviews led law enforcementto Mr. Blizzard. The State'stheory was essentially a murder for hire scheme. Mr. Holbrook and Mr. Blizzard were former business partners. Although there had been a falling outbetween the two men, Mr. Blizzardwas the beneficiary ofMr. Holbrook's life insurance policy: Prior to the May 2013 attack, Mr. Blizzard tried recruiting various people to kill Mr. Holbrook. As part ofthis effort, he enlisted the help ofhis sometimes-girlfriend, Jill Taylor. Ms. Taylor also happened to be Mr. Holbrook's former daughter-in-law. Eventually, Mr. Blizzard recruited Ms. Taylor's roommate, Adriana Mendez, and Ms. Mendez's boyfriend, Luis Gomez-Monges, to pose as prospective homebuyers and attack Mr. Holbrook during a home tour.
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Mr. Blizzard, Ms. Mendez, Mr. Gomez-Monges, and Ms. Taylorwere charged in connection with Mr. Holbrook's murder. During the pretrial phase ofthe case, 

### Mr. Blizzard moved to suppress records related to his cell phone. He argued the warrants authorizing seizure ofhis cell phone records were invalid due to procedural and substantive flaws. Just priorto a hearing scheduled to address the cell phone warrants, the trialjudge received a letter authored by the county's electedprosecutor. 1 In the letter, the prosecutor alleged the trialjudgehad "abias andprejudice against the Yakima CountyProsecuting Attorney's Office." Clerk's Papers (CP) at 

### 835. He criticizedthe trialjudge'shandling of

### Mr. Blizzard's case as well as others. The prosecutor claimed the trialjudgepersonally disliked several prosecutors and "bent overbackwards" to favor the defense. CP at 

### 834. He alleged the trialjudge's bias made it "impossible for the State to get a fair trial." CP at 

### 835. Ultimately, the prosecutorrequested the trialjudgerecuse herselforberemoved by the presidingjudge. The trialjudgebroughtthe letter to the parties' attention. Thejudgenoted she had consulted with the state'sjudicial ethics advisory committee. She expressed concernthat the letterwas improper exparte contact and constituted an attempt to intimidate the court.

1The electedprosecutor at issue no longer holds office. 3

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The trialjudgeprovidedthe State with a deadline for filing a formal recusal motion and set a briefing schedule. The State never filed a formal motion for recusal. Instead, the State's lead deputy prosecutor assigned to this case filed a notice ofabandonment, disavowing the recusal request. Mr. Blizzard, in tum, filed a motion to dismiss under CrR 8.3(b) for prosecutorial misconductbased on the letter. The trial court denied Mr. Blizzard's motion and continued to hearthe case. Shortly after ruling onMr. Blizzard's motion to dismiss, the trial court denied his motion to suppress the cell phone records. The court ultimatelyruled on numerous additional motions, including a second motion to dismiss based on an allegation the State had intercepted attorney-client communications. While thejudge denied this second motion to dismiss, not all the court's rulings favored the State. Significantly, the trial judge granted a defense motion toprohibitthe State from filing enhanced charges, which could have resulted in a mandatory life sentence. Attrial, codefendants Adriana Mendez and Jill Taylorturned state's evidence and testified against Mr. Blizzard. CodefendantLuis Gomez-Monges was tried separately. A

·jury found Mr. Blizzard guilty offirst degree murder. By special verdict, it also found

4No. 32866-0-111 

### State v. Blizzard (1) Mr. Blizzard was armed with a deadly weapon,2 and (2) Mr. Holbrookwas particularly vulnerable or incapable ofresistance. Mr. Blizzard appeals. ANALYSIS 

### The CountyProsecutor's Letter Mr. Blizzard focuses his appeal on various legal harms purportedly caused by the county prosecutor's letter. According to Mr. Blizzard, the letter violated separation of powers, constitutedprosecutorial misconduct, and deprived him ofa fair trial. We need not address these concerns serially in a complicated, multi-faceted manner. The county prosecutor's letter could only implicate separation ofpowers ifit was so powerful and divisive that it had the capacity to threaten thejudge's independence. 

### See Zylstra v. Piva, 85 Wn.2d 743, 750, 539 P.2d 823 (1975). Similarly, any misconductby the prosecutor in issuing the letter would only warrantreversal ifit fundamentally undermined the fairness ofthe proceedings. 

### State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). In sum, regardless ofwhether the prosecutorwas attempting to engage in misconduct or invade the independence ofthejudiciary, the issue to be decided is whetherthe letter

2 Prior to commencing deliberations, the court instructed thejurors, in part: "Ifone participant in a crime is armed with a deadly weapon, all accomplices to thatparticipant are deemed to be so armed, even ifonly one deadly weapon is involved." CP at 2691. 5No. 32866-0-III 

### State v. Blizzard deprived Mr. Blizzard ofhis right to a fair trial before a fair tribunal. Fairtrial claims fall into two categories: due process and claims under the "appearance offairness doctrine." Dueprocess is a constitutional requirement. It establishes the minimal requirements for a fair hearing. The appearance offairness doctrine provides greaterprotection. Itpermits litigants to make fair trial claims based on violations ofthe Code ofJudicial Conduct (Code), regardless ofwhetherthose claims implicate due process. 

### Tatham v. Rogers, 170 Wn. App. 76, 91-93, 283 P.3d 583 (2012). Because a complaint under the appearance offairness doctrine is not constitutional, it generally cannotbe raised for the first time on appeal. Once a basis for recusal is discovered, prompt action is required. 

### In re Pers. Restraint of Swenson, 158 Wn. App. 812, 818, 244 P.3d 959 (2010). Delaying a request for recusal until afterthe judgehas issued an adverse ruling is considered tactical and constitutes waiver. 

### Id.; State
v. Bolton, 23 Wn. App. 708,714,598 P.2d 734 (1979). 3 Mr. Blizzardnever asked the trialjudgeto recuse herself. He claims doing so would have impaired his speedy trial rights. Butthis concern is always present in criminal cases. Mr. Blizzard fails to explain how his case is different orwhattype of

3 The appearance offairness doctrine involves an objective inquiry into the impact ofprejudice on ajudge. 

### Swenson, 158 Wn. App. at 818. As a result, there is no need to wait and see whether an improper influence will impact ajudge'srulings. 6

## I

No. 32866-0-III 

### State v. Blizzard delay would have occurred had his case been assigned to a differentjudge. Less than a yearpassed between Mr. Blizzard's arraignment and the start oftrial. From a constitutional perspective, this was prompt. 

### Doggett v. UnitedStates, 505 U.S. 647, 651- 52, 112 S. Ct. 2686, 120 

### L. Ed. 2d 520 (1992). We fail to detect any obvious reason why Mr. Blizzard could not have sought recusal in a timely manner. We therefore decline to craft a generalized speedy trial exception that would swallow the well established rule requiring aprompt motion. Relieffrom waiverwould be especially inappropriate here as the record indicates Mr. Blizzard's decision notto seek recusal was tactical. The county prosecutor's letter
was disclosed on May 28, 2014. Trial did not beginuntil late August 2014. During the period between these two dates, Mr. 

### Blizzard appeared before the trialjudge numerous times and filed significantpleadings.4 

### Yet he made no request for recusal. Mr. 

### Blizzard's actions demonstrated a willingness to "take his chances" with the trialjudge. 

### Bolton, 23 Wn. App. at 714-15. This strategy proved fruitful. The trialjudge saved Mr. Blizzard from facing a mandatory life sentence by granting the defense motion to prohibit the State from filing enhanced charges; thejudge excluded a State witness from testifying on grounds ofhearsay; and thejudgeultimately imposed a much lower sentence than what

4 

### See, e.g., CP at 985, 1033 and 1062.7No. 32866-0-III 

### State v. Blizzard

was requested bythe prosecution.5 Mr. Blizzard cannot now go back onhis choice to remain with the trialjudge simply because he has been convicted. Appellate review underthe appearance offairness doctrine has beenwaived. 

### Id. Our due process analysis requires a different approach. Denial ofthe constitutional right to a fair tribunal is a structural errorthatrequires reversal regardless ofprejudice. 

### Williams v. Pennsylvania,_U.S._, 136 S. Ct. 1899, 1909-10, 195 L. Ed. 2d 1208 (2016). The rules ofappellate procedure permitreview ofMr. Blizzard's constitutional claim eventhough it was notpreviouslyraised in the trial court. RAP 2.5(a)(3). Due process generally involves an objective analysis. 6 We ask "notwhether a judgeharbors an actual, subjective bias, but instead whether as an objective matter, the averagejudge in his position is likely to be neutral orwhetherthere is anunconstitutional

5The prosecution requested a total sentence of600 months, or 50 years. Thejudge imposed 416 months, or 34 years. Mr. Blizzardwas not yet 30 atthe time ofsentencing. The trial court's discretionary rulings savedMr. Blizzard from potentially spending the rest ofhis life in prison. 6 A due process claim can stand in the rare case where ajudge admits to actual bias

. but fails to recuse. 

### Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 883, 129 S. Ct.

2252, 173 L. Ed. 2d 1208 (2009). Although never formally asked to recuse herself, the trial courtvolunteered that she had "absolutely no question" in hermind she couldbe fair and impartial in Mr. Blizzard's case. Verbatim Report ofProceedings (May 28, 2014) at 496. 

### 8No. 32866-0-111 

### State v. Blizzard potential for bias." Williams, 136 S. Ct. at 1905 (internal quotation marks omitted) (quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868,881, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009). Through our country's significanthistory oflitigation, only three circumstances have been found to create unconstitutionaljudicial bias: (1) when ajudgehas a financial interest in the outcome ofa case, (2) when ajudgepreviouslyparticipated in a case in an investigative orprosecutorial capacity, and (3) when an individual with a stake in a case had a significant and disproportionate role in placing ajudge onthe case through the campaignprocess. 

### Caperton, 556 U.S. at 877-884. In addition, the Supreme Courthas suggested, though not held, there may be an impermissible risk ofbias when ajudgeis the recipient ofpersonal criticisms that are highly offensive. 

### Ungar v. Sarafite, 376 U.S. 575, 583, 84 S. Ct. 841, 11 L. Ed. 2d 921 (1964). The circumstances presented by Mr. Blizzard do not fall into any ofthe three established categories ofbias. He instead draws on the analysis suggested by 

### Ungar that the county prosecutor's letter to thejudgewas "sopersonal and so probablyproductive of bias" the trialjudgewas constitutionally required to recuse herself. 

### Id. The argument is the county prosecutor's letter was so incendiary that a reasonable person could not help but conclude thejudgewould feel intimidated and therefore pressured to issue future
9No. 32866-0-III State v. Blizzard rulings in favor ofthe State. Even ifwe were to accept that Ungar recognized a fourth category of impermissible bias, it does not apply in Mr. Blizzard's case. The criticisms lodged against thejudge in this case wereprofessional, notpersonal. They do not fall within the scope ofpotential prejudice contemplated by Ungar. Judges are required by the Code to disregard criticisms such as those lodged in this case. CJC Rule 2.4(A) ('judge shall not be swayed by public clamor, or fear ofcriticism"). As recognized in Ungar, "[ w]e cannot
assume thatjudges are so irascible and sensitive that they cannot fairly and impartially deal with resistance to their authority orwith highly charged arguments about the soundness oftheir decisions." Ungar, 376 U.S. at 584. Professional criticisms, no matter how inaccurate or improper, do not meet this standard. Ajudge's duty to decide.all cases presented to the court remains paramount. Before considering Mr. Blizzard's remaining arguments, we brieflyreturn to the concept ofseparation ofpowers. 

### Mr. Blizzard argues the countyprosecutor's letter threatened to undermine the balance ofpowers betweenthejudicial and executive branches ofgovernment. We agree this is a basis for concern. But it is a concern that would only become manifest were we to grantrelief. There mustbe consequences to prosecutorial misconduct. However, dismissal is not always the appropriate response.
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Dismissal in this case would notpunish the prosecutor. With dismissal, the executive branch might lose an individual case, but it would gain daunting power. A rule requiring recusal in cases such as 

### Mr. Blizzard's would enable the executive to manipulate the judiciary and force future recusals at virtually anyjuncture oftheproceedings simplyby hurling politically charged attacks. Dismissal would notpunishthe executive. Itwould punishthejudiciary. It would also punish 

### Mr. Holbrook's family. The very need to preserve separation ofpowers requires that

### Mr. Blizzard's challenge be denied. 

### Validity of the Search Warrants Mr. Blizzard contends the trial court erred in admitting contents ofhis cell phone records because they were not obtainedpursuantto valid search warrants. His challenges
are bothprocedural and substantive. Ourreview is de novo. 

### State v. Miles, 159 Wn. App. 282,291,244 P.3d 1030 (2011); 

### State v. Dunn, 186 Wn. App. 889, 896, 348 P.3d 791 (2015). 

### Procedural challenges The warrants underreview were issued by the Yakima County Superior Court after similar warrants had been issued by the district court. The reason for reissuance was that the State became concernedthe district court lackedjurisdictionto issue warrants for out11

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of-state corporations. Because the State does not attempt to defend the district court warrants, we operate under the assumption they were invalid. Mr. Blizzard challenges the superior court warrants onthe basis that they were obtained in reliance on information learned from the invalid district courtwarrants. Were this argument factually accurate, there would be a strong argument for suppression. Illegally obtained information cannot be used to supportprobable cause for a warrant. State v. Ridgway, 57 Wn. App. 915, 919, 790 P.2d 1263 (1990). Butthe facts are not as suggested by Mr. Blizzard. The new information referenced by Mr. Blizzardpertains to a**~** 

### change in the company that owned Mr. Blizzard's cell phone lines. According to the record, the State learned Mr. Blizzard's cell phone lines had been sold to a new company through a series oflaw enforcementphone calls to cell phone company representatives. This new information was not obtained by reviewing search warrant returns. Norwas it obtained by exploiting the existence ofthe invalidly issued warrants. 7 

### Because the State independently discovered the change in phone companies, this information was properly

7 

### One ofthe phone calls was to GOGH, Inc., the purchaser ofMr. Blizzard'sphone lines. A representative from GOGH confirmed the company had purchased Mr. Blizzard'sphone lines. This confirmation was received priorto any application for a warrant to search GOGH's records. Thus, there can be no claimthe State exploited an improperly issued warrant to obtain this information. Wong Sun v. UnitedStates, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). 12

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included in the superior court warrant application and does not provide a basis for suppression. 

### State v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005). Mr. Blizzard next argues the superior court warrant was invalid because it lacked the following statutorily mandated language: "This warrant is issued pursuantto RCW 10.96.020. A response is due within twenty business days ofreceipt, unless a shortertime is stated herein, or the applicant consents to a recipient's request for additional time to comply." RCW 10.96.020(2). Unless constitutional considerations are in play, the rules for the execution and return ofa search warrant are basically ministerial in nature. 

### State v. Kern, 81 Wn. App. 308, 311, 914 P.2d 114 (1996). Generally, unless a defendant can showprejudice, procedural noncompliance withthese rules does not invalidate a warrant or.otherwise require suppression ofevidence. 

### Id.; see also State v. Parker, 28 Wn. App. 425, 426-27, 626 P.2d 508 (1981) (officer served unsigned copy ofwarrant); 

### State v. Smith, 15 Wn. App. 716, 719, 552 P.2d 1059 (1976) (warrant failed to designate a magistrate for return); 

### State v. Bowman, 8 Wn. App. 148, 150, 504 P.2d 1148 (1972) (officer failed to properly
serve defendant with warrant); 

### State v. Wraspir, 20 Wn. App. 626, 629, 581 P.2d 182 (1978) (officer failed to take inventory in presence ofother person). Mr. Blizzardhas not shown or argued the warrants' failure to specify the time ofits execution and return
13No. 32866-0-111 

### State v. Blizzard prejudiced him in any way. The object ofthe search was not transitory or changeable or stale. The dangers inherent in delay in execution were not implicated. The search warrant was valid, despite the absence ofthe required language. 

### Substantive challenge Substantively, Mr. Blizzard claims the search warrants were not supported by probable cause. Probable cause to support a search warrant requires sufficient facts and circumstances establishing a reasonable inference that the defendantparticipated in criminal activity and that evidence ofthe crime will be found in the areato be searched. 

### State v. Dunn, 186 Wn. App. 889, 895-96, 348 P.3d 791 (2015). The superior courtwarrant set forth numerous facts linking 

### Mr. Blizzard's cell phone lines with the Holbrook investigation. The affidavit disclosed that Mr. Blizzard's company held a $1.58 million life insurance policy on

### Mr. Holbrook. The affidavit also recited Ms. Mendez's confession that she and Mr. Gomez-Monges hadposed as fake homebuyers and that

### Mr. Gomez-Monges had attacked Mr. Holbrook while viewing a prospective property. Although at the time Ms. Mendez denied the existence ofa conspiracy, she admitted to knowing Mr. Blizzard. In addition, Ms. Mendez'sphone records showedtext messages betweenherselfand Mr. Blizzard onthe day ofthe attack. The manager at Ms. Mendez's hotel identified 

### Mr. Blizzard as the individual who had
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### State v. Blizzard


### been paying Ms. Mendez's rent. The manager recalled Mr. Blizzard stating he was suing Mr. Holbrook's real estate company and was expecting to come in to a large sum of money. This comment tended to corroborate the statements from Mr. 

### Holbrook's family members, alleging badblood between Mr. Blizzard and Mr. 

### Holbrook. While the information set forth in the affidavit may not have been enough to
secure a conviction, it was sufficient to establish probable cause. The affidavit established motive and an apparent conspiracy between Mr. Blizzard and Mr. Holbrook's attackers. Because Mr. Blizzard and Ms. Mendez were contacting each other via text message on the day ofthe attack, it was reasonable to inferthat evidence aboutthe attack would be found on Mr. 

### Blizzard's cell phone. 

### Attorney-Client Communications While Mr. Blizzard was in pretrial custody, stafffrom the Yakima Countyjail confiscated paperwork from his cell during a routine security sweep. Thepaperwork turned out to be trial preparation materials, including discovery documents, defense investigative memos, and handwritten notes. Based on this intrusion into his private paperwork, Mr. Blizzard filed a motion to dismiss for governmental misconduct under CrR 8.3(b).

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### No. 32866-0-111 State v. Blizzard


### Dismissal under CrR 8.3(b) is an "extraordinary remedy." State v. Puapuaga, 

### 164 Wn.2d 515,526, 192 P.3d 360 (2008). Even in the context ofan improper intrusion into confidential attorney-client communications, dismissal is unwarranted ifthere is "no possibility ofprejudice to the defendant." State v. Pena Fuentes, 

### 179 Wn.2d 808, 819, 318 P.3d 257 (2014). The State bears the heavy burden ofproving lack ofprejudice beyond a reasonable doubt. Id

### at 819-20. The trialjudge considered Mr. Blizzard's CrR 8.3(b) motion after conducting a lengthy evidentiary hearing. Atthe close ofthe hearing, thejudge found the contents of the confiscated materials had never been shared with anyone involved in the prosecution team, including law enforcement officers. The lead case agent did not evenknow Mr. Blizzard's documents had been confiscated until the defense filed a motion to dismiss. The trialjudge found that while somejail staffsaw Mr. Blizzard's documents, no one looked at the materials in detail. In addition, no one with access to Mr. Blizzard's documents discussed the contents with anyone else. Mr. Blizzard assigns no error to the trial court's factual findings; as such, they are verities on appeal. State v. Perrow, 

### 156 Wn. App. 322, 325, 231 P.3d 853 (2010). The trialjudge's findings are sufficient tojustify denial ofthe motion to dismiss. What little information was obtainedbyjail staffwas never shared with the prosecution or law
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enforcement investigators. Because there was no possibility that seizure ofMr. Blizzard's documents benefited the State orprejudiced the defense, dismissal was unwarranted. Pena Fuentes, 179 Wn.2d at 821-22. 

### AdditionalProsecutorial Misconduct Mr. Blizzard argues additional misconduct by the State exacerbated the structural
error caused by the countyprosecutor's letter. Ourruling regarding the county prosecutor's letter undercuts his claim. In any event, none ofthe alleged remaining errors warrant reversal. 

### Standard ofreview To succeed on aprosecutorial misconduct claim, a defendant must show notjust improper conduct, but also prejudice. In re Pers. Restraint o/Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). Usually misconduct claims can be efficientlyremedied at the trial court stage ofthe proceedings. A defendant who waits until appeal to raise misconduct arguments bears a heavy burden. We will only reverse ifprosecutorial misconduct is "so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to thejury." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).

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### Alleged discovery violation Mr. Blizzard argues the State committed misconductwhen it failed to identify the text messages it intended to use at trial, in violation ofa court order. The record shows otherwise. During apretrial proceeding, the State represented it intended to introduce 150 pages oftext messages at trial. This was pared down from 30,000 pages originally contained in the discovery. The trialjudge accepted the State's representation as satisfying the court's order. Defense counsel responded, "[t]hat's fine." Verbatim Report ofProceedings (July 30, 2014) at 1222. No discovery violation occurred. 

### Abortion testimony Mr. Blizzard asserts the State introduced prejudicial character evidence by eliciting testimony from Jill Taylorthat Mr. Blizzard impregnated her on three occasions and terminated each pregnancy through abortion. Atthe time ofMs. Taylor's testimony, the defense did not object on the basis ofeither improper character evidence orprosecutorial misconduct. Had characterbeen a concern, Mr. Blizzard could have sought a curative instruction. Buthe did not. Instead, defense counsel asked Ms. Taylor further questions about the abortions and mentioned the abortions in closing argument. Mr. Blizzard's request for reliefbased on the abortion testimony is denied as waived.

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### Foundationfor text messages Mr. Blizzard contends the State did not establish a foundation for admission ofthe text messages taken from his phone. This is a claim ofevidentiary error. It 

### cannot even loosely be classified as prosecutorial misconduct. Reviewing the trialjudge's evidentiary rulings for abuse ofdiscretion, State v. Bradford, 175 

### Wn. App. 912, 927, 308 

### P.3d 736 (2013), 

### we find no error. The text messages were never fully admitted to thejury. Although various witnesses testified about some ofthe messages, copies ofthe actual textrecords were
neverpublished to thejury or sent back to thejuryroom. When thejury submitted a question during deliberations, asking ifthe text messages had been admitted, they were told they had received all admitted evidence. Given thejurynever received copies ofthe text message exhibits, the scope ofMr. Blizzard's evidentiary challenge is quite limited. Particularly given the nature ofthe evidence shared with thejury, the State established a sufficient foundation. The text messages in question were eitherbetween Mr. Blizzard and Ms. Mendez orMr. Blizzard and Ms. Taylor. Both Ms. Mendez and Ms. Taylortestified at trial and identified the textmessages as ones between themselves and Mr. Blizzard. Although Ms. Mendez could not recall Mr. Blizzard's cell phone number, she recognized the content ofthe text messages, and Ms. Taylor confirmedMr.
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Blizzard's number. Mr. Blizzard's cell number was also confirmed by testimony regarding the search ofthe cell phonethat had been seized from Mr. Blizzard at the time ofhis arrest. Because competent, first-hand evidence tied Mr. Blizzard's cell phoneto the text messages, the Statepresented sufficient evidence ofauthenticity to allow presentation ofits evidence. 

### State v. Young, 192 Wn. App. 850,369 P.3d 205 (2016). 

### Cellphone record testimony Finally, Mr. Blizzard claims the State introduced testimony regarding cell phone records and cell phone location without proper foundation. Again, this error is at most evidentiary, not misconduct. Nevertheless, as is true in the misconduct context, wewill not reverse for evidentiary error absentprejudice to the defense. 

### State v. Jackson, 102 Wn.2d 689, 695, 689 P.2d 76 (1984). The cell phone evidence at issue in this portion ofMr. Blizzard's argument did not pertain to Mr. Blizzard. The phone records pertained to Mr. Holbrook and the cell phone location evidence pertainedto Ms. Mendez. The State introduced this evidence to corroborate Ms. Mendez's testimony that she had been in contact withMr. Holbrookprior to the assault and that she was near him at the time ofthe assault. Neither ofthese facts
was contested by the defense. The defense theory was that Ms. Taylorhad been responsible for recruiting Ms. Mendez and Mr. Gomez-Monges to kill Mr. Holbrook.
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This theory was not undermined by the introduction ofMs. Mendez's andMr. Holbrook's cell phone evidence. Any evidentiary error was harmless. 

### CONCLUSION Mr. Blizzardreceived a fair trial, administered by an impartialjudge. He suffered
no meritorious claims oferror. Thejudgment and sentence is affirmed.

Pennell, 

### J. WE CONCUR:

Fearing, C.J.

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