### FILED OCTOBER 13, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill


### INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. MICHAEL CURTIS COLLEY, Appellant. ) ) ) ) ) ) ) ) ) 

### No. 

### 33344-2-111 (Consolidatedwith No. 

### 33345-1-111)
UNPUBLISHED OPINION

KORSMO,

### J. -Michael Colley appeals his five Franklin County convictions, primarilyraising evidentiary challenges. Although we agree that there was error, none of it was harmful and we affirmthe convictions. FACTS This appeal arises from an incident in which Mr. Colley was apprehended driving
a stolenvehicle; some ofthe contents ofthe vehicle form the basis for many ofthe evidentiary issues presentedhere. We address the facts (typically in conjunctionwiththe argument) andthe issues in a somewhat cursory manner since we intendthis opinionto be non-precedential. When stopped, Mr. Colleypresentedthe driver's license for ChristopherBrunetti, butwhen questionedby the officer saidhis first namewas "Carlos." Thepassenger, Adel Estrada, also gave a false nametothe officer. Bothwere arrested and a warrantwas

### No. 33344-2-III; 33345-1-III State v. Colley


### obtained to search the stolen vehicle. Deputies discovered two guns, ammunition, Camel Crush cigarettes, a ski mask, and miscellaneous other items including a receipt from a local Walgreens store. These items were all admitted into evidence at trial. An Adams County deputy sheriffdiscovered a Hyundai with a broken window a few days after Colley had been arrested in Franklin County. Inside was paperwork for Adel Estrada, a box ofCamel Crush cigarettes, and mail from 31 individuals or businesses, including Mr. Brunetti. The prosecutor soughtto admit this "404(b)" evidence at trial. After hearing argument and defense objection, which was renewed at trial, the trial court admitted the Adams County information. The court did not explain its reasoning in admitting this evidence. Ajury convicted Mr. Colley offelony counts ofunlawful possession ofa firearm, identity theft, and possession ofa stolen vehicle, and misdemeanor counts ofpossession ofstolen property and making a false statement to a public servant. He received concurrent sentences, the longest ofwhich was twelve months for the weapons count. He timely appealed to this court. ANALYSIS Mr. Colley contends thatthe court erred in admitting the Walgreens receipt, some ofthe other items in the stolen car, the Adams County evidence, and in questioning about Ms. Estrada. After noting the standards ofreview for these challenges, we address those claims in the noted order. 2No. 33344-2-111; 33345-1-111 

### State v. Colley Initially, we note the appellate review standards governing evidentiary challenges. Evidentiary rulings, includingthose under ER404(b), are reviewed for abuse of discretion. 

### State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Discretion is abused ifit is exercised on untenable grounds or for untenable reasons. 

### State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26,482 P.2d 775 (1971). In orderto present an evidentiary argument on appeal, the party must have challenged the admission ofevidence at trial on the same grounds that it raises on appeal. 

### State v. Guloy, 104 Wn.2d 412,422, 705 P.2d 1182 (1985). As explained in 

### Guloy: As to statement (d), counsel objected but on the basis that it was not proper impeachment nor was it within the scope ofredirect. A party may only assign error in the appellate court on the specific ground ofthe evidentiary objection made at trial. Since the specific objection made at trial is notthe basis the defendants are arguing before this court, they have losttheir opportunity for review. Id. (citation omitted). Evidence ofotherbad acts is permitted to establish specific purposes such as the identity ofan actor orthe defendant's intent orpurpose in committing a crime. ER 404(b). Those purposes, in tum, must be ofsuch significance to the currenttrial thatthe evidence is highly probative and relevant to prove an "essential ingredient" ofthe current crime. 

### State v. Lough, 125 Wn.2d 847, 863, 889 P.2d487 (1995). Evidence admitted underER404(b) is considered substantive evidence ratherthan impeachment evidence. 

### State v. Laureano, 101 Wn.2d 745,766,682 P.2d 889 (1984), 

### overruled inpart byState

3No. 33344-2-III; 33345-1-III State v. Colley

v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1990); State v. Wilson, 60 Wn. App. 887, 891, 808 P.2d 754 (1991). When considering ER404(b) evidence, the proponent ofthe evidence must first convince a trial court by a preponderance ofthe evidence that the "misconduct" actually occurred. Lough, 125 Wn.2d at 853. A trial court may conduct a hearing to take testimony, but is not required to do so. State v. Kilgore, 147 Wn.2d 288, 294-295, 53 P.3d 974 (2002). Ifthe court determines that the misconduct occurred, the court then must identify thepurpose for which the evidence is offered, determine whetherthe evidence is relevant to prove an element ofthe offense, and weigh the probative value of the evidence against its prejudicial effect. Lough, 125 Wn.2d at 853. The court may then admit the evidence subject to a limiting instruction telling thejurythe proper uses ofthe evidence. Id. at 864. The admission ofother "bad acts" evidence underER404(b) does notpresent a constitutional issue. Dowlingv. UnitedStates, 493 U.S. 342, 352,-110 S. Ct. 668, 107 

### L. Ed. 2d 708 (1990). Nonconstitutional error is harmless if, within reasonable probability, it did not affect the verdict. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986). Walgreens Receipt The Walgreens receipt showed thatpurchases, including Camel Crush cigarettes, hadbeen recently made at a store close to where the vehicle was stopped. The other items listed on the receipt also were found in the car and Ms. Estrada admittedthat she and the 4

### No. 33344-2-III; 33345-1-III State v. Colley
defendant had purchased items at the Walgreens that evening. During argument, the prosecutor used the receipt to indicate the time the defendant had been at the store. Mr. Colley argues that the receipt was hearsay and should have been excluded on that basis. 1 

### We agree. The evidence was used to establish that the items on the receipt had been purchased at the nearby Walgreens shortly before the traffic stop. Since the receipt served to prove the truth ofwhat was stated on the form, it was hearsay. ER 80l(c). Business records are admitted pursuant to the statutory requirements ofRCW 5.45.020. That was not done here. 

### It was errorto admit the receipt for the purpose of proving the information contained therein. The prosecutor argues both that the document was properly authenticated and that Mr. Colley adopted the receipt as his own statement bypossessing it. See ER 801(d)(2)(ii) (excluding from the definition ofhearsay, any statement "whichthe party has manifested an adoption or beliefin its truth."). Neither argument is persuasive. Whether something is properly authenticated is governed by ER 901 etseq. Hearsay is governed by the provisions ofER 801 etseq. and, in this case, also by RCW 5.45.020. Authentication may be required to admit a document, but authentication does not establish the foundation for admitting business records or other forms ofhearsay. They presenttwo different questions.

1

### He also argues that the receipt was irrelevant evidence. However, he did not challenge the item on that basis at trial and cannot now do so. Guloy, I04 Wn.2d at 422. 

### 5No. 33344-2-III; 33345-1-III State v. Colley
We also are notpersuadedthat merepossession ofa document, without more, establishes that the possessor also adopted those statements as his or her own. A librarian possesses many books, but is not thereby deemedto claim all oftheir contents as her own statements. Instead, there mustbe some manifestation thatthe possessor intends to convey the message in the document as his own. For instance, when Mr. Colley was asked for identification, he presented Mr. Brunetti's driver's license. That act was an assertion that the contents ofthe document spoke for Mr. Colley. Merely having a receipt in the car, or even on his person, is not an adoptive admission. The trial court erred in admitting the receiptto prove the contents ofthe writings thereon. Nonetheless, the error was absolutely harmless in this case. Ms. Estrada testified that the two had madepurchases at Walgreens and the items, orphotos thereof,
were admitted into evidence at trial. The only information not already before thejury involved the time ofthe purchases. While arguably relevant, that information was ofno consequence to this case. The timing ofthe purchase, shortly before the traffic stop, only served to confirm thatthe items were purchased nearby not long before the deputy stopped the couple in the stolen vehicle. Ifanything, the receipt inured to the benefit of Mr. Colley as it suggested he had not stolen those items. The timing ofthe Walgreens purchase was not at issue in trial. Error in admitting that information was absolutely non-prejudicial.

6 

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# lNo. 33344-2-III; 33345-1-III State v. Colley
ER 404(b) Mr. Colley next argues thatthe trial court erred in admittingthe ski mask andthe evidence from the Adams County investigation. We agree thatthe trial court erred in failing to follow the balancingtest required by ER404(b) and that error, particularly the failure to balance on the record the probative value ofthe evidence against any prejudicial effect, leaves us uncertain whetherthe Adams County evidence was admissible. Assuming that the court erred in admitting that evidence, however, the error did not, within reasonable probability, affectthe verdict. Mr. Colley was arrested while in possession ofthe stolen vehicle and the other items found therein, including the weapons. He lied to the police about his identity and attempted to pass himselfoffas Mr. Brunetti. Thus, all five crimes were committed in the presence ofthe officers and were not influenced bythe Adams County evidence. Indeed, the only piece ofthat evidencerelated to Mr. Colley was mail belongingto Mr. Brunetti and, possibly, the Camel Crush cigarettes. While the evidence suggestedthat Mr. Colley
was involved with the Hyundai found in Adams County, the converse was not true. The Adams County evidence held very little significance to the Franklin Countyprosecution. 

### It may have been a different story ifthe other evidence had beentied more closely to Mr. Colley and suggested that he was living by stealing mail, butthatwas notthe case. The Hyundai evidence did not, within reasonable probability, affectthe verdict. Any error in admitting the evidence was notprejudicial. 7No. 33344-2-III; 33345-1-III 

### State v. Colley
The ski maskpresents a slightly different issue. Mr. Colley argues that it was irrelevant and prejudicial. To the extentthat he is arguing prejudice as an independent
reason for excluding the maskperER403, he has waived the claim by not arguing it to the trial court. 

### Guloy, 104 Wn.2d at 422. To the extentthathe is arguingthat the evidence was irrelevant and thathe sufferedprejudice therefrom, we disagree. The evidence was relevant. Relevant evidence is admissible. ER402. Evidence is relevant ifit has "any tendency" to make a fact ofconsequence "moreprobable or less probable." ER401. The ski mask was relevant to show knowledge on the part ofMr. Colley that the vehicle and other items were stolen. Although dependent upon a chain ofinferences that would suggest Mr. Colley knew the items were stolen because he stole them, the ski mask was probative that Mr. Colley had need to hide his identity. The weight to be given this information, ifany, was for thejury. The error in admitting the ER404(b) evidence was harmless; there was no error in admitting the ski mask into evidence. 

### QuestioningaboutMs. Estrada During questioning ofa deputy sheriffaboutthe traffic stop and subsequent behavior ofthe occupants, the prosecutor asked ifMs. Estradawas "honest" about her identity. Defense counsel objected thatthe question was irrelevant since "honesty"was a jury question. Thejudge directed the prosecutorto set a foundation for the question. 8 i 

# I I 

# l ' f 1 fNo. 33344-2-III; 33345-1-III State 

### v. Colley
After she did so by having the deputy explain the identity produced and howMs. Estrada did notresemble thatperson, the prosecutor again askedthe same question without objection and the deputy answered that she was not. Mr. Colley now contends that question invaded the province ofthejury. In this instance, it did not. In context, the prosecutorwas simply attempting to getthe deputy to explain the

course ofthe investigation--the occupants had produced false identification andthe deputy had to dig further to find theirtruthful identities. The question was unartful--defense counsel both explained how the prosecutor should have asked the question and later demonstrated in his questioning ofMs. Estrada--but it was not an attempt at soliciting an opinion about the credibility ofMs. Estrada's (then non-existent) testimony. She was not a scheduledwitness for the State and this does not appearto be a
case ofpreemptive impeachment ofa defense witness.2 This simply was an attemptto explain the course ofevents. The trialjudge'sruling also suggests he heard the question in the same manner since he directed counsel to provide a foundation for the statement rather than direct the prosecutorto rephrase the question.

2 Interestingly, not only did defense counsel haveMs. Estrada explain that she lied about her identity and why she did so, counsel also impeached herwith several prior felony convictions. Tothe extentthe prosecutor's question couldbe interpreted as calling for an opinion about Ms. Estrada's honesty, it was consistentwith the defense effortto paint Ms. Estrada as the bad actor in this case. 9No. 33344-2-111; 33345-1-111 

### State v. Colley
To the extent that the question and answer could have been misconstrued as a comment on Ms. Estrada's credibility, the defense should have renewed its objectionto the final question. The failure to do so arguably waives the current objection. But, even ifthe issue is preserved and the answer was erroneous, it was not harmful in the least. If it had been construed as an opinion about honesty, it was one that supportedthe defense efforts ratherthan harming them. The inartful question did notprejudice the defense. None ofthe errors or alleged errors, individually or cumulatively, affected the fairness ofthe trial. The convictions are affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR: 

# ditikw ,~- Siddoway, J.

# ~
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