IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JAMES JEROME KENNEDY,

Appellant.

No. 84553-5-I

DIVISION ONE

UNPUBLISHED OPINION

BIRK, J. — James Kennedy appeals his conviction, arguing the trial court 

erroneously excluded evidence of the complaining witness’s prior misdemeanor 

convictions in violation of ER 609 and his right to present a defense. Because we 

conclude that any error did not materially affect the outcome, we affirm.

I

On March 1, 2019, Tracy Jones was in a trailer that belonged to his 

neighbor, Kim Roper, when Kennedy entered and started talking about a bicycle 

that Jones had purchased from Kennedy. Jones had previously agreed to buy a 

bicycle from Kennedy for $100. The terms of the agreement are disputed.

According to Jones, the two agreed on “a deal where it was $100, and I would give 

him $50 up front, you known, and hang on to the bike. And then when I verified 

that it was a real, you know, bike, then I’d pay him the other $50 and the deal would 

be done.” Jones testified that if the bicycle turned out to be a “knockoff,” he would 

return the bicycle, and Kennedy would give back the $50. Jones later concluded 
No. 84553-5-I/2

2

the bicycle was not genuine, and testified he told Kennedy he wished to rescind 

the transaction.

According to Kennedy, “It was $100 for a bicycle that I gave [Jones]. And 

he gave me $50 down and was going to give me $50 at the end of the week. That 

was it. There was no—nothing talked about, any calling the manufacturer ever or 

anything like that.” Kennedy testified Jones came up with excuses when asked 

about the remaining balance. Kennedy testified he asked Jones to return the 

bicycle so he could sell it to somebody else, and give Jones back his $50. 

However, Jones would not give the bicycle back until Kennedy returned his $50. 

Roper testified that in the trailer, Kennedy and Jones “were disagreeing 

about a price on [the bicycle] or something. One wanted the money back, and they 

were just, they were disagreeing with each other, and the conversation started to 

get a little bit heated.” Roper testified that Jones was sitting in the back corner of 

the trailer during the conversation, when Kennedy “just kind of jumped on [Jones] 

and started hitting him. And he had something small in his hand.” Roper saw 

Kennedy hit Jones in the head using the same hand that was holding the object

about two or three times. Kennedy and Jones “wrestled around that way for a little 

bit, and managed to get to their feet, and tumbled out the door pretty much 

together.” 

Jones testified Kennedy entered Roper’s trailer and asked him where the 

bicycle was, to which Jones replied asking where his $50 was. Jones stated that 

he looked up and saw “a pipe sliding out of the coat into [Kennedy’s] hand. And 
No. 84553-5-I/3

3

then he hit me with it. And I just buried my face in between my knees and put my 

hands over like this . . . . And he just kept hitting me.” Jones testified Kennedy hit 

him with the pipe 20 to 30 times before Jones was able to push the door open and 

crawl between Kennedy’s legs out the door. There was one step in the entryway 

to Roper’s trailer that Jones “kind of crawled and rolled out of it.” Jones testified 

he ran towards his fifth wheel and called 911. Jones sustained right zygomatic 

arch fractures and scalp bruising.

Kennedy testified that inside Roper’s trailer, he asked Jones “for the $50. 

And then we got in a tussle, and he went out the door. And I walked out the door, 

he swung at me with the jack handle, and then he took off toward his trailer.” 

Kennedy stated he did not recall hitting Jones, but stated the two engaged in a 

mutual “wrestling match.” The State charged Kennedy with second degree assault 

with a deadly weapon. 

The State filed a pretrial motion to exclude evidence of any witness’s “prior 

bad acts” without an offer of proof. Kennedy provided the State three certified prior 

convictions for Jones: a third degree theft conviction, and two fourth degree assault 

convictions. At argument, Kennedy stated Jones had two additional third degree 

theft convictions for which Kennedy’s counsel did not have the judgment and 

sentences, and represented that the convictions were included in the State’s prior 

discovery responses. The State responded expressing uncertainty about which 

cases Kennedy was referring to and requested the case numbers to look up the 

two missing theft convictions. The State argued Kennedy needed the judgment 
No. 84553-5-I/4

4

and sentence for the convictions to be able to impeach Jones. Kennedy stated 

“unless the State’s disputing the convictions that it gave me about their witnesses 

and their legitimacy, I do think that I can bring those up as [ER] 609 convictions 

without having the particular Judgment and Sentences.” The State argued that 

without the judgment and sentence, “should [Jones] deny having those two theft in 

the third degree convictions, [Kennedy] has to accept that.” The trial court ruled,

I will allow for the parties to introduce one prior theft in the third 

degree conviction for purposes of [ER] 609, but I’m not going to allow 

multiple prior convictions for a misdemeanor theft charge to show 

dishonesty to a testifying witness.

So the one prior conviction, the parties can choose which one 

they would want. Usually it would be the most recent that they can 

prove up, but we would get sidetracked if we go into a history of, you 

know, somebody’s been convicted of three or four different theft in 

the third degrees in the last ten years. 

That’s not informative to the jury, in my opinion. I think it’s 

cumulative. Showing that a person has been convicted once 

satisfies the requirement and the ability to impeach, at least for this 

kind of case, on this kind of issue.

So that’s for all witnesses on both sides. So if there are 

multiple theft convictions for a particular witness, I would ask the 

parties to decide which one they can prove or they are comfortable 

with or that they agree to use and one will be allowed. 

Kennedy objected and noted he may have further briefing. At trial, both Jones and 

Kennedy testified they had a prior misdemeanor theft conviction. 

The jury acquitted Kennedy of second degree assault and the deadly 

weapon enhancement, and convicted Kennedy of third degree assault. The trial 

court sentenced Kennedy to 80 hours of community service. Kennedy appeals. 
No. 84553-5-I/5

5

II

Kennedy argues the trial court erroneously excluded evidence of Jones’s 

prior misdemeanor theft convictions in violation of ER 609. We conclude that any 

error was harmless. 

We review evidentiary rulings for an abuse of discretion. State v. King, 75 

Wn. App. 899, 910 n.5, 878 P.2d 466 (1994). A trial court abuses its discretion “if 

its decision is manifestly unreasonable or based on untenable grounds or 

untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 

1362 (1997). Evidence of prior convictions may be admissible to attack the 

credibility of a witness, including a defendant in a criminal case, under ER 609.

State v. Rivers, 129 Wn.2d 697, 704-05, 921 P.2d 495 (1996). ER 609(a) states,

For the purpose of attacking the credibility of a witness in a criminal 

or civil case, evidence that the witness has been convicted of a crime 

shall be admitted if elicited from the witness or established by public 

record during examination of the witness but only if the crime (1) was 

punishable by death or imprisonment in excess of 1 year under the 

law under which the witness was convicted, and the court determines 

that the probative value of admitting this evidence outweighs the 

prejudice to the party against whom the evidence is offered, or (2) 

involved dishonesty or false statement, regardless of the 

punishment.

“[C]rimes of theft involve dishonesty and are per se admissible for impeachment 

purposes under ER 609(a)(2). State v. Ray, 116 Wn.2d 531, 545, 806 P.2d 1220

(1991), abrogated on other grounds by State v. Crossguns, 199 Wn.2d 282, 505 

P.3d 529 (2022). 

The State argues the trial court was within its discretion to limit questioning 

to one misdemeanor theft conviction because Kennedy lacked documentation of 
No. 84553-5-I/6

6

the convictions. However, ER 609(a) states a prior conviction shall be admitted

either if “elicited from a witness” or “established by public record during 

examination of the witness.” In Ray, the court overruled its treatment of theft 

crimes in State v. Burton, 101 Wn.2d 1, 676 P.2d 975 (1984), in which, Ray

explained, the trial court “admitted evidence of defendant’s prior convictions for 

petit larceny and shoplifting.” Ray, 116 Wn.2d at 544. Ray approved the reasoning 

of the lead opinion in State v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 

906 (1989). Ray, 116 Wn.2d at 544-45. That opinion concluded, “all three theft 

convictions were automatically admissible as crimes involving dishonesty.” Brown, 

113 Wn.2d at 545. Even though Kennedy would not have been able to prove the 

admissible prior theft convictions if Jones denied them, the trial court denied 

Kennedy the opportunity to elicit the convictions from Jones through crossexamination. However, any error in disallowing this cross-examination was 

harmless. 

An erroneous ruling under ER 609(a) is reviewed under the 

nonconstitutional harmless error standard. Rivers, 129 Wn.2d at 706. A ruling 

under ER 609 is not reversible error “ ‘unless, within reasonable probabilities, had 

the error not occurred, the outcome of the trial would have been materially 

affected.’ ” State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986) (quoting 

State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). Here, there is 

not a reasonable probability that the outcome of the trial would have been different 

absent the error. 
No. 84553-5-I/7

7

Even if two additional prior theft convictions of Jones had been before the 

jury, the outcome of the trial would have been the same based on the other 

evidence before the jury. Jones testified Kennedy hit him with a pipe numerous 

times before he was able to exit the trailer. Roper identified Kennedy as the 

aggressor, testifying Kennedy “just kind of jumped on [Jones] and started hitting 

him. And he had something small in his hand.” Roper testified he saw Kennedy 

hit Jones in the head using the same hand that was holding the object about two 

or three times. Jones’s injuries, right zygomatic arch fractures and scalp bruising, 

were consistent with Roper’s and Jones’s testimony. The outcome of the trial was

not materially affected by excluding the additional ER 609(a) impeachment 

evidence, and therefore any error in its exclusion was harmless. 

III 

Kennedy argues the exclusion of Jones’s prior convictions violated 

Kennedy’s constitutional right to present a defense. We disagree.

In determining whether a trial court erred in excluding evidence in violation 

of a defendant's Sixth Amendment right to present a defense, we engage in a “twostep review process.” State v. Arndt, 194 Wn.2d 784, 797, 453 P.3d 696 (2019). 

This court first reviews “the trial court’s individual evidentiary rulings for an abuse 

of discretion.” Id. at 797-98. Where a “ ‘trial court abused its discretion in making 

an evidentiary ruling, and the ruling was prejudicial to the defendant,’ ” our inquiry 

ends. State v. Jennings, 199 Wn.2d 53, 59, 502 P.3d 1255 (2022) (quoting with 

approval State v. Jennings, 14 Wn. App. 2d 779, 800-01, 474 P.3d 599 (2020), 
No. 84553-5-I/8

8

(Melnick, J., concurring), affirmed in part, 199 Wn.2d 53)). However, where “ ‘the 

abuse of discretion constituted harmless error,’ ” id. at 59 (quoting Jennings, 14 

Wn. App. 2d at 800-01 (2020)), or where a court’s evidentiary rulings do not 

constitute abuse of discretion, we then “consider[] de novo whether the exclusion 

of evidence violated the defendant’s constitutional right to present a defense,” id.

at 58. 

A criminal defendant’s right to present a defense is guaranteed by both the 

federal and state constitutions. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. 

However, the Constitution permits judges to “ ‘exclude evidence that is 

repetitive . . . , only marginally relevant or poses an undue risk of harassment, 

prejudice, [or] confusion of the issues.’ ” Holmes v. South Carolina, 547 U.S. 319, 

326-27, 126 S. Ct. 1727, 164 L. Ed. 2d 503 (2006) (alterations in original) (internal 

quotation marks omitted) (quoting Crane v. Kentucky, 476 U.S. 683, 689-90, 106 

S. Ct. 2142, 90 L. Ed. 2d 636 (1986)). There is “a distinction between evidence 

that merely bolsters credibility and evidence that is necessary to present a 

defense.” Jennings, 199 Wn.2d at 66-67. If the evidence is relevant, we must 

weigh the defendant’s right to produce relevant evidence against the State’s 

interest in limiting the prejudicial effects of that evidence to determine if excluding 

the evidence violates the defendant’s constitutional rights. State v. Hudlow, 99 

Wn.2d 1, 16, 659 P.2d 514 (1983); State v. Orn, 197 Wn.2d 343, 353, 482 P.3d 

913 (2021). 
No. 84553-5-I/9

9

As stated above, any error in the exclusion of the convictions was harmless. 

In State v. Young, 27 Wn. App. 2d 461, 473, 532 P.3d 629 (2023), this court 

declined to apply the constitutional harmless error standard, stating, “It cannot be 

the case that any defendant who identifies an erroneous exclusion of relevant 

evidence that is harmless under the nonconstitutional standard can—by doing no 

more than asserting a constitutional claim—impose on the State the heightened 

burden of proving constitutional error.” Instead, the court applied a materiality 

standard to determine whether a violation of the right to present a defense 

occurred. Id. at 474-75. The court stated,

“The proper standard of materiality must reflect our overriding 

concern with the justice of the finding of guilt . . . . This means that 

the omission must be evaluated in the context of the entire record. If 

there is no reasonable doubt about guilt whether or not the additional 

evidence is considered, there is no justification for a new trial. On 

the other hand, if the verdict is already of questionable validity, 

additional evidence of relatively minor importance might be sufficient 

to create a reasonable doubt.”

Young, 27 Wn. App. 2d at 474 (quoting United States v. Valenzuela-Bernal, 458 

U.S. 858, 868, 102 S. Ct. 3440, 73 L. Ed. 2d 1193 (1982)). In Young, the court 

found there was no reasonable likelihood that Young’s testimony to a self-serving 

opinion that he was driving safely would have changed the outcome, where the 

defense was able to present and argue the facts on which Young’s opinion was 

based. Id. at 478.

Here too, there is no reasonable likelihood that admitting additional prior 

convictions would have changed the outcome. Kennedy was able to present 

evidence of one of Jones’s prior theft convictions. Any error in excluding the 
No. 84553-5-I/10

10

additional theft convictions did not affect Kennedy’s ability to argue that Jones was 

physically aggressive and that Kenney acted in self-defense.

III

Because we do not conclude that Kennedy waived his objection to the 

court’s exclusion of two prior theft convictions of Jones, it is not necessary to reach 

his argument that waiver would constitute ineffective assistance of counsel.

Affirmed.

WE CONCUR: