### FILED 

## COURT OF APPEALS DIVISION 11 2015 

### JAN 2 I A , 

### 9 05 S ` 

### 0r AS liqGTON BY IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

STATE OF WASHINGTON, DIVISION II

Respondent,

v. KEVIN VERNON JOHNSON, Appellant. No. 45178 - 6 -II

UNPUBLISHED OPINION

WORSWICK, J. — 

### Kevin Johnson appeals his conviction for delivery of methamphetamine.' 

### Johnson argues thatthe trial court violated the hearsay rule by admitting (1) Detective Hollinger' s testimony that Victoria Stotts was Johnson' s girlfriend, (2) Detective 

### Hollinger' s testimonythatWayne Blocher identified Johnson as the methamphetamine supplier, 3) Detective Landwehrle' s testimony that Blocher provided the methamphetamine supplier' s 

### telephone number, and (4) Detective Hollinger's testimonythat Stotts provided her own 

### telephone number. We hold the trial court erred by admitting Detective Hollinger' s testimony of Blocher's out -

of - court statement identifying Johnson as the methamphetamine supplier, Detective Landwehrle' s testimony ofBlocher's out - of - court statement providing the methamphetamine supplier's telephone number, and Detective Hollinger' s testimony ofStotts' s 

### out - of - court statement providing her own telephone number. Because this testimony provided

1 Former RCW 69. 50.401 ( 2005); RCW 69.50.206(d)(2).No. 45178 -6 -II



### almost all ofthe evidence supporting Johnson's identity as the methamphetamine supplier,we 

### hold that these errors were not harmless. Thus, we reverse Johnson's conviction and remand.2 FACTS Kevin Johnson was twice tried for 

### delivery of methamphetamine. 3 In Johnson' s second 

### trial, ajury found Johnson guilty ofdelivery ofmethamphetamine. A. 

### Investigation Leading to the Charge

1. Methamphetamine Controlled Buys 

### On April 11, 2012, Wayne Blocher contacted a group ofmethamphetamine dealers as part ofa State criminal investigation. Outside ofthe detectives' presence, the dealers told Blocher their methamphetamine supplier' s telephone number. 

### By calling the supplier' s telephone number, Blocher contacted and arranged to purchase methamphetamine from the supplier, and then informed detectives. Detective Kevin Landwehrle 

### set up a controlled buy. Detective Landwehrle provided Blocherwith marked money, planning 

### that Blocherwould purchase methamphetamine fromthe supplierat a grocery store while Detective Landwehrle and others secretly watched from a distance. 

### 2 Johnson also argues the trial courtviolatedthe confrontation clause by admitting Detective Hollinger' s testimony of (1) the fact that Stotts was Johnson' s girl friend, (2) Wayne Blocher' s 

### out - of - court statement identifying Johnson as the supplier, and (3) Stotts' s out - of - court statement providing her telephone number. The admission ofWayne Blocher' s out - of - court statement 

### identifying Johnson as the supplierand Stotts' s out - of - court statement providing hertelephone 

### number likelyviolatedthe confrontation clause. But because we resolve Johnson's case on nonconstitutional grounds, we do not consider Johnson' s constitutional confrontation clause claims. See Brunson v. Pierce 

### County, 149 Wn.App. 855, 862, 205 P. 3d 963 ( 2009) ( "We avoid 

### reaching any constitutional issues where we are ableto decide the case on nonconstitutional grounds "). 3 Johnson' s first trial ended in a mistrial.

2No. 45178 -6 -II 

### Later on April 11, Blocher met the supplier at the grocery store forthe controlled buy. From a distance, Detective Landwehrle sawthe supplier and a female arrive at the grocery store in a vehicle, and saw the supplier exit the car and meet with Blocher. Blocher attempted to 

### purchase methamphetamine from the supplier, but because Blocher did not have enough money to purchase as much methamphetamine as the supplier intended to sell, the deal was cancelled. When the supplier left in his vehicle on April 11, detectives followed him to a travel trailer and saw a male and a female exit the vehicle and walk toward the trailer. Detective Landwehrle subsequently provided Blocher additional marked money, and 

### Blocher set up a new controlled buywith the supplier; this time to occur at a gas station. Atthe 

### gas station, Blocher met with and successfully purchased methamphetamine from the supplier. Detective Landwehrle saw the supplier from a distance, but did not see the methamphetamine transfer itself. 

### 2. Search Warrant ofTrailer The day following the controlled buys, Detective Landwehrle drove by the trailerwhere detectives had earlier followed the supplier' s vehicle. Detective Landwehrle saw the supplier, 

### who was wearing the same clothes he wore during the two previous controlled buys. Detectives obtained a search warrantforthe trailer. While executing the warrant, Detective Hollinger talked to Johnson' s girl friend Victoria Stotts, who was inside the trailer. In response to Detective Hollinger' s request, Stotts told Detective Hollinger her telephone number. Stotts' s telephone number matched the supplier' s telephone number given to Blocher on April 11. 

### The State charged Johnson with delivery ofmethamphetamine.

3No. 45178 - 6 -II
B. First Trial and Mistrial At Johnson' s first trial, Blocher testified about the two controlled buys. Blocher provided 

### the following testimonyas to the supplier's identity:

State]: Is [the supplier] here in the courtroom today? Blocher]: I believe so, but I — I couldn' t tell you for sure. State]: 

### Okay. Why do you say you couldn't say for sure? Blocher]: Well, the defendant, I' m assuming, is sitting at the table there. He doesn' t look like the gentleman that I dealt with. That was eight months ago. Ex. 44 at 8 -9. Blocher also provided the following testimony:

State]: Do you recall, at some point, Detective Hollinger showed you a man' s driver' s license photo? Blocher]: Several. State]: Do you remember ifyou were able to point out the person that you' d seen at [the two controlled buys]? Blocher]: I can' t remember. I believe I did, but I' m not sure if it was the same 

### day or the following day. State]: But you think that at some point you pointed out the person you' d seen at the two buys]? Blocher]: Yes. Ex. 44 at 17 -18.

After the close ofthe evidence, the State learned that Blocher had spoken to a woman from thejail telephone. These conversations were recorded. Blocher told this woman that he did 

### not want to testify in Johnson' s trial, and the woman told Blocher that Johnson planned to 

### change his appearance priorto trial and that Blocher should testify that he could not remember what Johnson looked like.

The trial court granted the State' s motion to reopen its case to enter the recorded telephone conversations into evidence. Then, upon Johnson' s motion and the State' s concession, the trial court ordered a mistrial on grounds ofthe newly discovered evidence.

4No. 45178 -6 -II

C. Johnson' s Second Trial

1. 

### Blocher's Partial Unavailability atJohnson's Second Trial At the second trial, Blocher had come to believe that the State might charge him with 

### perjury for his testimony at Johnson's firsttrial aboutthe supplier' s identity. Accordingly, Blocher asserted his privilege against self-incrimination4 to refuse to testify at Johnson' s new trial. The trial court determined that it could not compel Blocherto answer any questions related 

### to the supplier's identity or Blocher'stelephone calls made in thejail,but could compel Blocher 

### to testify concerning other matters. Blochertestified attrial, but successfully asserted his privilege against self -

incrimination to avoid answering all questions related to the supplier's identity.

2. The Detectives' Trial Testimony 

### Detective Landwehrle testified attrial, and provided the following testimony as to the 

### supplier' s identity:

Detective Landwehrle]: He was 

### definitely over six feet tall. He was kind of a 

### heavierbuild. He had long craggilyhair,facial hair. Hewas in his 40s,white male, and wearing dirty clothing. State]: 

### Understanding youwerefrom adistance,butdoes anyone inthe courtroom today match the same general physical appearance as that person? Detective Landwehrle]: 

### Yes, the defendant, Mr. Johnson, except,obviously, his hair has been cut, and his facial hair is changed. State]: But same build, same general appearance? Detective Landwehrle]: Right. Verbatim Report of Proceedings (VRP) at 77 - 78, 99. Detective Hollinger also testified at the trial. Detective Hollinger testified ofBlocher' s out - of - court statement that identified Johnson as

4 U.S. CONST. amend. V; WASH. CONST. art. I, §9.

5No. 45178 -6 -II



### the supplier. Johnson objected to this testimony underthe confrontation clause, but did not object underthe hearsay rule. The State argued thatthe statement fell within an exception to the 

### hearsay rule. The trial court ruled that the statement was not 

### hearsay, " to the extent [an objection] was made," because the statement fell under ER 801( d)( 1)' s exception for statements ofidentification.5 See VRP at 220.

Next, the two Detectives testified to three additional out - of - court statements, each of 

### which worked togetherto identify Johnson asthe supplier. First, Detective Landwehrle testified to Blocher' s out - of - court statement conveying the 

### dealers' out -

of - court statement providing the supplier's telephone numberto Blocher. Detective 

### Landwehrle read thetelephone number into the record. Johnson objected on hearsay grounds, and the trial court overruled his objection.

Second, Detective Hollinger testified that Stotts told him her telephone number. Detective Hollinger read Stotts' s telephone number into the record, revealing that itwas identical to the supplier' s telephone number conveyed by Blocher's out - of - court statement. Johnson 

### objected to this testimony under the hearsay rule. During avoir dire in aid ofobjection, 

### Detective Hollinger stated he obtained Stotts' s telephone number by asking herfor it,and did not

use any other method to confirm that the telephone number was Stotts' s. The trial court overruled the hearsay objection, ruling that the statement was not offered to prove the truth ofthe

matter asserted.



### 5 Thetrial courtreserved ruling onthe confrontation objection. Trial counsel subsequently withdrew Johnson' s confrontation objection without receiving the trial court's ruling on the confrontation issue. 6No. 45178 - 6 -II Third, Detective Hollinger testified that he was aware ofJohnson and Stotts' s 

### relationship, and that Stotts was Johnson' s girl friend. Johnson objected to this testimony under 

### the hearsay rule, arguing Detective Hollinger' s knowledge that Stotts was Johnson' s girl friend must have come from Stotts' s out - of - court statements. The trial court overruled the hearsay objection because Detective Hollinger testified from personal knowledge, and the source of his knowledge was not part ofthe State' s questioning. 

### Detective Landwehrle' s testimony about Blocher's out - of - court statement conveyingthe supplier' s telephone number and Detective Hollinger's testimony about Stotts' s out - of - court statement conveying hertelephone number revealed that Stotts' s telephone numberwas the supplier' s telephone number, which connected Stotts to the supplier. Detective Hollinger's 

### testimonythat Stotts was Johnson' s girl friend connected Stotts to Johnson. Thus, the State used these three pieces oftestimony togetherto connect Johnson to the supplier and support its argument that Johnson was the supplier.

3. Conviction andAppeal 

### Thejuryfound Johnson guilty ofdelivery ofmethamphetamine. Johnson appeals. ANALYSIS 

### We review whether a statement is hearsay de novo as a question oflaw. State v. Edwards, 131 Wn.App. 611, 614, 128 P. 3d 631 ( 2006). 

### Hearsay is "a statement, otherthan one 

### made by the declarantwhile testifying atthe trial or hearing, offered in evidence to prove the truth ofthe matter asserted." ER 801( c). 

### Accordingly, statements are not hearsay ifthey are offered for some purpose other than to prove the truth ofthe matter asserted. See State v. Collins, 76 Wn.App. 496, 498 - 99, 886 P. 2d 243 ( 1995). Under ER 802, hearsay is inadmissibleNo. 45178 - 6 -II 

### unless it comes within an exception established by statute or common law. State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P. 3d 990 (2007). I. ERRONEOUS ADMISSION OF HEARSAY A. 

### Testimony that Stotts wasJohnson's Girl Friend 

### Johnson argues that admitting Detective Hollinger'stestimonythat Stotts was Johnson's girl friend violated the hearsay rule because Detective Hollinger' s knowledge ofStotts' s 

### relationship with Johnson must have been based on Stotts' s out - of - court statements. The State argues that nothing in the record supports thatthe basis ofDetective Hollinger's knowledge was a statement. We agree with the State. Hearsay excludes only out - of - court statements. See ER 801( c). Detective Hollinger testified based on his personal knowledge that Stotts was Johnson' s girl friend. Detective 

### Hollinger did nottestify as to howhe acquired that personal knowledge about Stotts' s and 

### Johnson's relationship, andthus, did nottestifyto anyout - of - court statementby Stotts oranyone else.6 Because Detective Hollinger did nottestifyto any statement, and nothing in the record supports that a statement provides the basis for Detective Hollinger' s knowledge that Stotts was 

### Johnson's girl friend, admitting Detective Hollinger's testimony as to Stotts' s relationship with 

### Johnson did not admit an out - of - court statement, and thus, did notviolate the hearsay rule.

6 Johnson did not voir dire Detective Hollinger on this point.

8No. 45178 - 6 -II
B. 

### Testimony ofBlocher's Statement IdentifyingJohnson as the Supplier

In his statement of additional grounds ( SAG), 

### Johnson argues that the trial court erred by 

### admitting, under ER 801( d)(1)' s hearsay exemption, Detective Hollinger's testimony of Blocher' s out -

of - court statement identifying Johnson as the supplier. We agree. ER 801( d)( 1) states that a statement is nothearsay if 

### tjhe declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is ... one of identification of a person 

### made after perceiving the person. Here, Blocher asserted his privilege against self - incrimination to avoid answering 

### questions concerning the supplier's identity. Thus, Blocherwas not subject to cross - examination concerning his out - of - court statement 

### identifying Johnson, as required 

### by ER 801( d)( 1). The trial court erred by admitting Detective Hollinger' s testimony ofthat out - of - court statement. C. 

### Testimony ofBlocher's Out - of - CourtStatement Conveying the Supplier 's Telephone Number 

### Johnson argues that admitting Detective Landwehrle' s testimony ofBlocher' s out -of

### court statement conveying the supplier's telephone number violated the hearsay rule because it
was offered to prove the truth ofthe matter asserted within Blocher' s out - of - court statement. The State argues that Detective Landwehrle' s testimony of Blocher's out - of - court statement was admitted to support not that the telephone number was the supplier' s telephone number, but rather that the telephone number was connected to the supplier. We agree with Johnson. A statement that atelephone number is a particular individual' s telephone number is a statement that that telephone number is connected to that particular individual.. Thus, Blocher' s out - of - court statement that the telephone number was the supplier' s telephone number was a

statement that the telephone number was connected to the supplier. Because DetectiveNo. 45178 -6 -II

Landwehrle' s testimony ofthis statement was offered to prove that the telephone number was connected to the supplier, it was offered to prove the truth ofthe matter asserted. Because no 

### hearsay exception applies, the admission ofBlocher's statement violated the hearsay rule.? D. 

### Testimony ofStotts' s Out - of - CourtStatement Conveying her Telephone Number Johnson argues that Detective Hollinger's testimony ofStotts' s out - of - court statement 

### conveying hertelephone numberviolated the hearsay rule because the statementwas offered to prove the truth ofthe matter asserted. We agree. As discussed above, a statement that a telephone number is a particular individual' s telephone number is a statement that that telephone number is connected to that particular individual. Thus, Stotts' s out - of - court statement that the telephone number was Stotts' s telephone number was a statement that the telephone number was connected to Stotts. Because 

### Detective Hollinger' s testimony ofthis statement was offered to prove that the telephone number was connected to Stotts, itwas offered to prove the truth ofthe matter asserted. Because no 

### hearsay exception applies,the admission ofStotts' s statement violated the hearsay rule. II. HARMLESSNESS 

### Johnson argues the erroneous admissions ofhearsay were not harmless underthe 

### evidentiary standard. We agree.



### 7 Johnson correctly asserts thatthis is double hearsay because the trial court erroneously admitted the drug dealer' s out -

of - court statementthrough Blocher's out - of - court statement. But because thetrial court erred by admitting Detective Landwehrle's testimony ofBlocher's out - of - court statement, we do not consider whetherthe trial court erred by admitting the drug dealer' s out -ofcourt statement through Blocher' s out - of - court statement.

10No. 45178 - 6 -II 

### Evidentiary error does notwarrant reversal ofa conviction unless it prejudices the defendant. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 ( 1997). 

### Evidentiary error is not prejudicial unless, within reasonable probabilities, the trial' s outcome would have differed had the error not occurred. 133 Wn.2d at 403. " Improper admission of evidence constitutes harmless error ifthe evidence is ofminor significance in reference to the evidence as a whole." State v. Neal, 144 Wn.2d 600, 611, 30 P. 3d 1255 (2001). But an accumulation oferrors that do 

### not individually require reversal may still denythe defendant afairtrial. State v. Perrett,86 Wn. App. 312, 322, 936 P.2d 426 ( 1997). 

### Here, the error is not harmless. Johnson's entire case turned on the supplier' s identity. The inadmissible hearsay admitted in this case (Blocher's out - of - court statement conveying the 

### supplier's telephone number, Stotts' s out - of - court statement conveying hertelephone number and Blocher' s statement identifying Johnson as the supplier) provided most ofthe evidence 

### establishing the supplier' s identity. Withoutthat evidence, all that remained to support identity is Detective Landwehrle' s identification ofJohnson as the supplier. But Detective Landwehrle 

### stated onlythatJohnson had the "same general appearance" as the supplier, notthat Johnson was the supplier. VRP at 99. Furthermore, Detective Landwehrle admitted that he saw Johnson from 

### only adistance, and admitted thatJohnson's hair and facial hairwere differentfrom what he saw on the supplier during the controlled buys. Thus, within reasonable probabilities, the trial' s outcome could have differed had the error not occurred. Therefore, the error was prejudicial.

11No. 45178 -6 -II 

### We reverse and remand forfurther proceedings consistent with this opinion.8 

### A majority ofthe panel having determinedthatthis opinionwill notbeprinted inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

8 Johnson filed a SAG. We considered the argument in Johnson' s SAG that the trial court 

### violated the hearsay rule by admitting Detective Hollinger's testimony ofWayne Blocher' s out - of - court statement identifying Johnson as the supplier. But because we reverse Johnson' s conviction,we do not consider the remaining issues within his SAG.
12