IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

r-o o STATE OFWASHINGTON, ; O No. 73593-4-1 C~> Respondent,

v. DIVISION ONE 1

ADAN MANUEL CORTES-GONZALEZ, UNPUBLISHED OPINION VJ3

sr Appellant. ) FILED: October 3. 2016 Spearman, J. — Absent a manifest abuse ofdiscretion, we will not disturb a trial court's decision to admit evidence. Adan Cortes-Gonzalez appeals his conviction ofone count each of second and fourth degree assault. He argues thatthe trial court abused its discretion and violated his right to a fair trial by 

### admitting a photograph taken at the scene ofthe crime. Because the trialcourt's decision to admitthe photograph was not manifestly unreasonable, we affirm.
FACTS 

### Many people were on the shore ofthe Snoqualmie River on a sunny
summer afternoon. Cortes-Gonzalez and his wife were at the river taking photos. 

### Michael Noonan was helping his granddaughter, Maeva Nolan, carry a kayak from the parking area to the river. 

### Cortes-Gonzalez believed thatthe kayak struck his wife and he yelled at 

### Noonan. Noonan denied hitting anyone and told Cortes-Gonzalezto leave themNo. 73593-4-1/2 alone. The dispute escalated into a physical altercation inwhich Noonan 

### sustained significant injuries. Bystanders called the police and indicated that Cortes-Gonzalezwas the instigator. Cortes-Gonzalez was arrested and charged with one count each of second and fourth degree assault. At trial, Noonan, Nolan, and two witnesses testified for the State. They each stated that a man approached Noonan, threw the first punch, held Noonan down and hit him while he was inthe water, punched Nolan, and kicked Noonan 

### when he tried to get up. One ofthe State's witnesses identified Cortes-Gonzalez incourt as the man involved inthe fight. Noonan stated that he did not get a 

### good look at the person who hithim. Nolandescribed the aggressor as a big man with black hair. Anotherwitness described the person involved as a large man in

a red shirt. The State submitted into evidence a video taken by one ofthe witnesses. 

### The video does not showthe beginning of the fight but is otherwise consistent 

### with the events described by the State's witnesses. In the video, which was taken from about 40 feet away, the aggressor appears to be a man with dark hair 

### wearing khaki shorts and a maroon shirtwith a distinctive logo. Over CortesGonzalez's objection, the trial court also admitted a photograph taken at the
scene of the crime. The photograph, whichwas taken from only a few feet away, shows Cortes-Gonzalez wearing khaki shorts and a maroon shirt with a distinctive logo. 

### Cortes-Gonzalez's wifetestified that Noonan provoked her husband, threw 

### thefirstpunch, andhitCortes-Gonzalez repeatedly during thefight. She statedNo. 73593-4-1/3 that Cortes-Gonzalez did not hit Nolan and she did not see him kick Noonan. In 

### closing argument, Cortes-Gonzalez argued that he struck Noonan and Nolan in self-defense. Thejury convicted Cortes-Gonzalez as charged. He appeals. DISCUSSION Cortes-Gonzalez argues that the trial court erred in admitting the photograph taken atthe scene ofthe crime. We review a trial court's evidentiary decisions for abuse ofdiscretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 

### 967 (1999). The trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds, jd. (citing State v. Stenson, 132 

### Wn.2d 668, 701, 940 P.2d 1239 (1997)). Adecision is manifestly unreasonable if 

### it"'adopts a viewthat no reasonable person would take.'" Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 669, 230 P.3d 583 (2010) (quoting Inre Pers. Restraint of Duncan, 167 Wn.2d 398, 402-03, 219 P.3d 666 (2009)). 

### In general, evidence is admissible ifit is relevant. ER 402. Evidence is relevant ifithas any tendency to make the existence of any fact that is of consequence to the determination ofthe action more or less probable than it would be withoutthe evidence. ER 401. But relevant evidence may be excluded 

### ifitposes a danger of unfair prejudice that substantially outweighs its probative value. Stenson, 132Wn.2d at 702 (citing ER 403). Evidence may be unfairly 

### prejudicial when itexcites an emotional rather than a rational response or when it promotes erroneous inferences. City ofAuburn v. Hedlund, 165 Wn.2d 645, 654- 55, 201 P.3d 315 (2009) (citations omitted). The trial court has broad discretion inNo. 73593-4-1/4 

### weighing the probative value versus the unfair prejudice ofevidence. Stenson, 132Wn.2d at 702 (citing State v. Rivers. 129 Wn.2d 697, 710, 921 P.2d 495 (1996)). At trial, the State offered a photograph into evidence to establish identity and prove that Cortes-Gonzalez was the man inthe video. Inthe photo, CortesGonzalez is standing nearthe river in front ofan ambulance. He is wearing khaki shorts and a maroon shirt. His hands are behind his back. A person wearing a dark shirt, khaki pants, and what appears to be a gun in a belt holder is partially visible. The person is standing one to two feet behind and to the side ofCortesGonzalez. 

### Cortes-Gonzalez objected thatthe photo was unfairly prejudicial because itwas taken at the time of his arrest. He also questioned the photo's relevance. 

### The trial court rejected Cortes-Gonzalez's arguments and admitted the photo. The trial court ruled that, since the State had the burden to prove identity and neither ofthe victims identified Cortes-Gonzalez, the photo was relevant to 

### identity. The court noted thatthe photo did notdepict Cortes-Gonzalezwith police officers or police cars. 

### On appeal, Cortes-Gonzalez asserts thatthe photograph should have been excluded under ER 403 because itposed a danger ofunfair prejudice that 

### substantially outweighed its probative value. He argues thatthe photograph was unfairly prejudicial because itshows himstanding in front of an ambulance with his hands behind his back and a person who appears to be an armed policeNo. 73593-4-1/5 officer standing nearby. Relying on State v. Rivers. 129 Wn.2d 697, 921 P.2d 495 (1996), Cortes-Gonzalez also argues that the photograph was not relevant. In Rivers, the trial court admitted a booking photograph ofthe defendant, jd. at 710. The trial court ruled that defense counsel had indicated inopening 

### argumentthat identity would be at issue and the photo was relevantto that issue. Id.The trial court also ruled that any prejudice was minimal since thejury knew the defendant had been arrested. Id. at711. The Supreme Court upheld the ruling. \± at 712. 

### Cortes-Gonzalez argues that in this case, unlike Rivers, defense counsel did not indicate that he intended to challenge identity. He argues that, because of this distinction, identitywas not at issue in the presentcase and the photo was
not relevant. He is mistaken. 

### Rivers does not stand forthe proposition that evidence is only relevantto 

### establish identity in the circumstances of thatcase. Rather, Rivers illustrates the 

### properinquiryfordetermining whether evidence is admissible under ER 403. Like the Rivers court, the trial court in this case considered whetherthe evidence 

### was relevant and weighed its relevance against the danger ofunfairprejudice. In this case, the trial court concluded thatthe photograph was relevant 

### because the State had the burden of proving identity and neitherof the victims had identified Cortes-Gonzalez. The trial court also considered the risk of unfair 

### prejudice andnotedthat there are nopolicecars oruniformed policeofficers in thephoto. Thetrial court's decision is based onpropergrounds. And thedecision is notmanifestly unreasonable because a reasonable personcould conclude thatNo. 73593-4-1/6 any danger ofunfair prejudice from the photograph did not substantially outweigh its relevance. There was no abuse of discretion. Furthermore, even ifthe trial court erred, the error was harmless. An
erroneous decision to admit evidence is grounds for reversal only if, within 

### reasonable probabilities, the error materially affected the outcome ofthe trial. State v. Evervbodvtalksabout, 145 Wn.2d 456, 468-69, 39 P.3d 294 (2002) 

### (citing State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). To
assess whetherthe errorwas harmless, we measure the admissible evidence of 

### Cortes-Gonzalez's guiltagainstthe prejudice, ifany, caused bythe photograph. Bourgeois, 133 Wn.2d at 403. Measuring the testimony ofthe State's witnesses 

### and the video evidence against any prejudicial effect from the photograph, we conclude that it is notreasonably probable that the outcome of the trial would have been different had the photo not been admitted.
Affirmed. 

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WE CONCUR: