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# 2015St?Zl J-8'"1

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

v. SCOTT T.VISNICH, Appellant. No. 72247-6-1 DIVISION ONE

UNPUBLISHED OPINION FILED: September21, 2015 

### Becker, J. — This appeal involves the admissibility ofevidence of a defendant's flight from the scene of a crime. The trial court did not abuse its 

### discretion by admitting evidence thatthe appellant, ScottT. Visnich, suddenly departed from a bank, leaving behind his driver's license and a forged checkthat he had attempted to cash. The trier of fact was properly allowed to decide what weightto give the evidence. 

### Visnich tried to cash a forged check at a Shoreline bank. He presented the check to a tellerwho determined that a stop payment order had been placed
on the account from which the check was drawn. The teller, who had also obtained Visnich's driver's license, asked her supervisorfor assistance. The 

### supervisorasked Visnich questions aboutthe checkand specificallyasked how he acquired it. The supervisorthen asked Visnich "to have a seat." AsVisnich 

### stepped back, the supervisor turned around to call the account holder.No. 72247-6-1/2 

### While the supervisorwas on the telephone withthe account holder, 

### Visnich left, leaving behind the check and his driver's license. The supervisor
saw Visnich leaving, and at aboutthat same time, the account holdertold the 

### supervisorthat he did not sign the check. She called the police. 

### Earlierthe same day at a differentbank, Visnich had successfully cashed
a checkdrawn on the same account. Visnichwas charged with two counts of 

### forgery. Hefiled a pretrial motion to preclude the Statefrom arguing that his act of leaving the bank was evidence offlight. The trial court denied the request, and Visnichwas convicted. On appeal, Visnich claims the evidence offlightwas erroneously admitted. 

### Flight is an admission by conduct. Evidence of flight is admissible if it creates a reasonable and substantive inference that a defendant's departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effortto evade arrest and prosecution. State v. Nichols. 

### 5 Wn. App. 657, 660, 491 P.2d 677 (1971). When evidence of flight is admissible, ittends to be only marginally probative as to the ultimate issue of guilt or innocence. State v. Freeburq. 105 Wn. App. 492, 497-98, 20 P.3d 984 

### (2001). "Therefore, while the range ofcircumstances that may be shown as evidence of flight is broad, the circumstance or inference of consciousness of guilt must be substantial and real, not speculative, conjectural, orfanciful." Freeburg, 105 Wn. App. at498; accord State v. Price, 126Wn. App. 617, 645, 109 P.3d 27, review denied. 155 Wn.2d 1018 (2005).No. 72247-6-1/3 

### Visnich contends the evidence of flight in his case was too speculative to prove that he was acting intentionally to avoid arrest. He also invokes ER 403, 

### claiming the trialcourterred by admitting the State's evidence offlight because it
was unduly prejudicial. Visnich cites State v. Bruton. 66 Wn.2d 111, 401 P.2d 340 (1965).

### In Bruton. two women suspected of shoplifting were questioned by a store detective. They began to walk away once the detective left. In finding thatthose facts were improperly admitted as evidence of flight, the court held thatthe inference ofan attemptto evade arrestwas too speculative. Bruton. 66 Wn.2d at 112-13. Here, by contrast, Visnich's decision to leave the check and his driver's license behind indicates his awareness thatthe police were being called. The evidence gives rise to a real and substantial inference of his consciousness of guilt. The trial court did not abuse its discretion in admitting the evidence. Affirmed. 

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WE CONCUR: