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

v. CHARLES CHRISTOPHER LANGSTON, Appellant. No. 74315-5-

DIVISION ONE

UNPUBLISHED OPINION FILED: January 30, 2017 c -



### Mann, J. — A jury convicted Charles Langston of (1)identitytheftin the second 

### degree and (2) theftin the second degree. Langstonappeals one evidentiary issue: whether the trial court abused its discretion when itadmitted his admission to police 

### officers that he was involved inanothertheft they were investigating. Langton argued thatthe statementwas inadmissible under ER 404(b). The trial court disagreed, 

### concluding thatbecause Langston's statement was allowed following a CrR 3.5hearing, itwas admissible. The trial court abused its discretion. A determination that a 

### statementwas voluntarilyobtained and admissible under CrR 3.5, is not the same as a determination that the statement is otherwise admissible underthe Rules ofEvidence.No. 74315-5-1/2 While the errorwas harmless with respectto Langston's conviction for second degree identity theft, itwas not harmless as to Langston's conviction for second degree theft. Accordingly, we affirm Langston's identity theft conviction, but vacate and remand Langston's theft conviction for a new trial. FACTS In early April 2015, Eddie Lee Robinson lost his wallet. The next day, he cancelled and reported his driver's license, social security, and bank cards as stolen. On April 16, 2015, Edmonds police officers were dispatched to investigate an unrelated report of a stolen cell phone from an AT&Tstore. Edmonds Police Officer Nicholas Bickar saw two people who matched the suspects' descriptions in a casino
across the streetfrom the cell phone store. Bickar made contactwith the suspects and asked if he could speak with them. They agreed. Bickarwas soonjoined by two other police officers. Bickar asked the suspects ifthey had been at the AT&Tstore. The suspects admitted that they had been atthe AT&Tstore. This prompted Bickarto ask Langston, one ofthe suspects, for his identification. 

### Langston identified himselfas Eddie Lee Robinson. Langston gave Robinson's date of birth and produced Robinson's social security card. After running the identification that 

### Langston provided (Robinson's), the police became suspicious that Langston was not Robinson. Acasino managerwho had overheard the conversation retrieved a copy of Langston's true identification, which the casino had on file, and gave it to the police. The officers then correctly identified Langston, discovered his outstanding warrants, and arrested him.No. 74315-5-1/3 

### Following Miranda1 warnings, Langston admitted that he found Robinson's wallet
on the bus the day before, and in an effort to avoid being arrested on his warrants, told the police he was someone else. The State charged Langston with (1) second degree identity theft committed while on community custody and (2) second degree theft. The State alleged that Langston used the identity of Robinson with the intent ofmisleading a public servant while the servant was acting in its officialcapacity, a crime under RCW 9A.76.175. Atthe CrR 3.5 hearing on the admissibility ofLangston's statements, the three officers testified aboutthe reported theft and Langston's explanation of his involvement. The courtfound Langston's statements admissible. Before trial, Langston moved "to exclude any references to arrests or other wrongful conduct not charged, to include, but not limited to any theft (cell phone) and obstructing a public servant, pursuantto ER 404(b)." The trial court granted in part and denied in part this motion. The court ruled that testifying officers could only say they
were "investigating a theft," but that Langston's statement about being involved inthe cell phone incident was admissible. The court reasoned that "the fullstatement... has already been deemed to be admissible." The court explained that "[t]he statement is 

### what it is. If[Langston] made statements thatwere adverse to his own interests, that's

on him."

1 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). -3-No. 74315-5-1/4 At trial, all three police officers testified thatthey were responding to a report of a 

### cellphone theft.2 The first officer to testify, Officer Strum, was asked to describe his initial contactwith Langston. Strum testified: So Iasked him what was going on with regard to the reason why Iwas 

### contacting them, and they said that they were involved inthat.[3] Langston did not object. Officer Bickar, the second officer called, was also asked about his initial contact 

### withLangston. Bickarstarted to testify about Langston's admission concerning the cell phone store but was cut off by Langston's objection. The court heard argument outside the presence ofthejury and sustained Langston's objection. Officer Clark, the last officer called, testified that he responded to assist inthe 

### otherofficers' theftinvestigation and to "assistwith taking Mr. Langstoninto custody."4 Officer Clark confirmed thatthey were responding to the theft of a cell phone and that 

### the "theftoccurred across the streetfrom where Mr. Langston was located."5 Langston took the stand and testified that although he found Robinson's wallet
on a bus a day and a halfbefore his arrest, he intended to return it and did not use any 

### of the cards (besides the social security card) in it.6 At closing argument, Langston again argued that he did not intend to steal Robinson's wallet and pointed out that he

2Reportof Proceedings (RP)(Aug. 24,2015)at47-48; RP(Aug. 24,2015)at 55 (OfficerBickar); RP (Aug. 24, 2015) at 66 (Officer Clark). 3RP(Aug. 24, 2015) at49. 4See RP (Aug. 24, 2015) at 66-67. 5See RP (Aug. 24, 2015) at 66-67. 6See RP (Aug. 24, 2015) at 78-85. -4-No. 74315-5-1/5 had not used the walletfor financial gain at the casino or anywhere else a day and a 

### half afterfinding it.7 Langston was found guilty of second degree identity theft and second degree theft. He appeals the trial court's decision allowing his admission to involvement in a theft separate from the charged conduct. ANALYSIS I. 

### Langston argues thatthe trial court abused its discretion when it allowed Officer Strum to testify that Langston admitted he was "involved in"the theft they were 

### investigating. We firstaddress whether Langston preserved this issue forappeal. The State argues that he did not because he failed to objectto the statement. The State cites the general rulethat when no objection is made to the evidence at trial, an evidentiary error is not preserved for appeal. The State is partially correct. When evidentiary rulings stem from a motion in limine, the losing party is deemed to have a standing objection where ajudge has made a final ruling on the motion, unless the trial court indicates that further objections at trial are required when making 

### its ruling. State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995) (internal quotations omitted). In Langston's case, the trial court granted in part and denied in part the motion, and the court did not indicate that Langston needed to object again at trial. As the losing party, Langston had a standing objection. This standing objection preserved the statementfor appeal.

7See RP (Aug. 25, 2015) at 141-49.No. 74315-5-1/6

Over Langston's pretrial objection, the trial court allowed the State to present 

### evidence that Langston admitted being involved inanothertheftthe arresting officers
were investigating based solely on the statement being allowed under CrR 3.5. 

### Langston argues thatthis was an abuse ofthe court's discretion. We agree. Evidentiary rulings are reviewed for abuse ofdiscretion. State v. Davis, 175 Wn.2d 287, 318, 290 P.3d 43 (2012). Acourt abuses its discretion when its decision is 

### manifestly unreasonable or based on untenable grounds or reasons. Davis, 175 Wn.2d
at 318. A. 

### In his pretrial motion in limine, Langston argued that his admission to being involved inthe cell phone theft investigation was inadmissible underthe Rules of Evidence. Evidence must be relevant to be admissible. ER 402. Evidence is relevant if ittends to make the existence ofany fact that is ofconsequence to the determination


### more or less probable than without the evidence. ER401. Relevant "evidence may be 

### excluded ifits probative value is substantially outweighed bythe danger of unfair prejudice, confusion of the issues, or misleading thejury." ER 403. Evidence of other crimes, wrongs, or acts is notadmissible to prove the characterof a person in order to show action in conformity therewith. But this evidence may be admissible forother 

### purposes, such as "proofofmotive, opportunity, intent, preparation, plan, knowledge, identity, orabsence of mistake or accident." ER 404(b). ER 404(b) admissibility 

### requires a two-part analysis: (1) the evidence sought to be admitted must be relevant to a materialissue and (2) the evidence's probative value must outweigh its potential for
-6-No. 74315-5-1/7 prejudice. State v. Lane. 125 Wn.2d 825, 831, 889 P.2d 929 (1995). The trial court 

### must identifythe purposes for which itadmits evidence under an ER 404(b) analysis on the record. Lane. 125 Wn.2d at 832. Here, ratherthan determining whether Langston's statement was admissible under ER 404(b), the trial court concluded that because the statementwas voluntarily obtained and admissible under CrR 3.5, itwas admissible. This is incorrect. As this court explained in State v. Viney: A determination that a statement was voluntarily obtained and admissible under CrR 3.5, is not the same as a determination that the statement is otherwise admissible underthe Rules of Evidence. A CrR 3.5 hearing is a threshold determination ofwhether a custodial statement was obtained with the proper regard for the defendant's rights. That is, the issue in a 

### CrR 3.5 hearing is constitutional, not evidentiary. The trial courtdoes not address the contents of a statement, but rather addresses the circumstances underwhich the statement is made. Furtheranalysis at 

### trial ofadmissibility underthe Rules ofEvidence is notforeclosed. 52 Wn. App. 507, 510, 761 P.2d 75 (1988). 

### Here, simply because Langston's statementwas voluntary under CrR 3.5 did not
mean that itwas admissible under ER 404(b). The trial court's decision was untenable. 

### Viney. 52 Wn. App. at 510. The court abused its discretion by basing its ruling on untenable grounds. B. 

### The State argues that Langston's admission fitswithin the res gestae exception to ER 404(b). Washington courts recognize a res gestae or "same transaction" 

### exception to ER 404(b). The res gestae exception makes "evidence of other crimes admissible to complete the story of the crime on trial byproving its immediate context of 

### happenings near in time and place." Lane. 125 Wn.2d at 831 (internal quotations
-7-No. 74315-5-1/8 omitted). Evidence is properly admitted underthe res gestae exception if it is necessary to depict a complete picture for thejury. State v. Filitaula. 184Wn. App. 819, 825, 339 P.3d 221 (2014) (citing Lane. 125 Wn.2d at 832)). Here, the State charged Langston with using Robinson's identity with the intentto committhe crime ofmaking a false statementto a public servant who was acting inan officialcapacity. See RCW 9.35.020(1); RCW 9A.76.175. The State maintains that if thejury had not heard Langston's admission of involvement intheir theft investigation, then itwould not know whetherthe officers were acting intheir official capacity when they asked Langston for his identification. Langston's admission does notfit within the res gestae exception to ER 404(b) because it is not relevant to the crimes that Langston was charged with, second degree 

### identity theft and second degree theft of a wallet. As the State points out on appeal, the admission only showed that the officers were acting intheir officialcapacities when 

### Langston identified himselfas Robinson. Butthe State did not need to prove this fact in orderto convict Langston of second degree identity theft under RCW 9.35.020(1). See State v. Fedorov. 181 Wn. App. 187, 197-98, 324 P.3d 784 (2014) (holding thatthe 

### State is not required to state the elements ofthe "crime" the defendant intended to commit in orderto secure a conviction for second degree identity theft under RCW 

### 9.35.020(1)). Langston's "to convict" jury instruction omitted the elements of making a false or misleading statementto a public servant under RCW 9A.76.175, the "crime" under RCW 9.35.020(1). Since the State was not required to prove thatthe officers were acting intheir 

### official capacities when Langston liedabout his identity, Langston's admission of
-8-No. 74315-5-1/9 involvement inthe cell phone theft was irrelevant. Langston's admission ofinvolvement inthe cell phone theft was not res gestae evidence because it did not "complete the story ofthe crime on trial." Lane. 125 Wn.2d at 831. III. We must determine whether the error was harmless. Nonconstitutional evidentiary error is harmless unless the errorwith reasonable probability materially affected the outcome ofthe trial. State v. Gower, 179 Wn.2d 851, 855, 321 P.3d 1178 

### (2014) (applying nonconstitutional harmless error analysis to erroneous admission of evidence under ER 404(b)). We must determine if"there is a reasonable probability that the outcome ofthe trial would have been different without the inadmissible evidence." Gower. 179 Wn.2d at 857. We conclude that there is not a reasonable 

### probabilitythat the errormaterially affected the outcome of the second degree identity theft conviction, but thatthere is a reasonable probability thatthe error materially affected the outcome ofthe second degree theft conviction. A. 

### The error is harmless as to Langston's conviction forsecond degree identity 

### theft. Langstontestified that he produced Robinson's social security card when the 

### police officers asked him for hisidentification.8 Hedid thisin an attempt to conceal his 

### identity so thattheofficers would notdiscoverhis outstanding arrestwarrants.9 Langston's testimonyamounted to an admission to the charge of second degree identity

8See RP (Aug. 24, 2015) at 80-81. 9 See RP (Aug. 24, 2015) at 81.No. 74315-5-1/10 theft and an intentto mislead a public servant. See RCW 9.35.020(1); RCW 9A.76.175. Langston's admission to involvement inthe theft investigation was irrelevant.
B. There is, however, a reasonable probability that Langston's admission materially affected his conviction for second degree theft. Langston's admission that he was involved inthe cell phone theft likelydamaged his credibility because itmade him look like a thief generally. Evidence that Langston told officers he was involved inthe cell phone theft made itmore likelythatjurors would not believe Langston's testimony that he did not intend to steal the wallet. There is a reasonable probability that Langston's second degree theft charge would have turned out differently without the inadmissible evidence. Thus, we reverse Langston's second degree theft charge and remand for a

new trial. III. 

### Langston prevails inpart on appeal and requests that we exercise ourdiscretion 

### to deny the State appellate costs. The State requests fees under RCW 10.73.160. This court has discretion to deny an award ofappellate costs ifthe State 

### substantially prevails on appeal. RCW 10.73.160; State v. Sinclair. 192Wn. App. 380, 393, 367 P.3d 612 (2016), review denied. 185 Wn.2d 1034, 377 P.3d 733 (2016); RAP 14.2. Because the State does not substantially prevail on appeal, we determine that no appellate costs should be awarded to the State.

-10-No. 74315-5-1/11

CONCLUSION We affirm Langston's second degree identity theft conviction. We vacate Langston's conviction for second degree theft and remand for a new trial.

WE CONCUR: 

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