IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

SHANE MARSTON,

Appellant.

No. 84973-5-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, A.C.J. — Shane Marston appeals from a jury conviction for 

residential burglary, obstructing a law enforcement officer, two counts of 

misdemeanor violation of no-contact order, and one count of tampering with a 

witness. The jury also found that the State had proved that the burglary and 

violation of no-contact order counts were crimes of domestic violence. Marston 

raises evidentiary challenges based on phone calls that were admitted at trial, 

including the fact that no instruction was issued to jurors explaining their role as 

fact finders in assessing the alleged adopted admissions in a recorded jail phone 

call. The trial court properly admitted the 911 call Marston now contests, but erred 

when it failed to instruct the jury regarding the alleged adoptive admissions in the 

challenged jail call. The failure to instruct the jury requires reversal of two of the 

crimes of conviction for which the State utilized this evidence. Affirmed in part, 

reversed in part, and remanded.
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FACTS

On July 4, 2022, an incident occurred between Shane Marston, Jessica 

Ramsey, and Gavin Minden that resulted in Ramsey calling the police. Officers 

from the Seattle Police Department (SPD) responded to the call, but Marston was 

gone by the time they arrived. Marston returned to the house later that night and

law enforcement was contacted again. SPD K9 units eventually led officers to 

Melanie Engle’s backyard where Marston was found roughly 40 feet up in a tree.

Marston was ultimately charged with burglary in the first degree, residential 

burglary, felony violation of a no-contact order, assault in the fourth degree, 

obstructing a law enforcement officer, two counts of misdemeanor violation of a 

no-contact order, and two counts of tampering with a witness. The charges of

burglary in the first degree, residential burglary, and violation of no-contact order 

were all designated as domestic violence offenses based on Marston’s intimate 

relationship with Ramsey. Among the evidence admitted at trial were the two 

phone calls at issue in this appeal: a 911 call made by Engle on the night of the 

incident, and a call Marston made to Ramsey from the King County Jail where he 

was incarcerated shortly after his arrest in this case. Neither Ramsey nor Engle 

testified at trial. To authenticate them, the State relied on testimony from the 

officers who responded to the 911 call, an officer who is the custodian of the jail 

calls, and the contents of each call. The court admitted the calls over objections 

from Marston.

The jury found Marston guilty of residential burglary, obstructing a law 

enforcement officer, two counts of misdemeanor violation of a no-contact order, 
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and one count of tampering with a witness. The jury acquitted Marston of burglary 

in the first degree, felony violation of a no-contact order, assault in the fourth 

degree, and one count of tampering with a witness. The court opted against a 

standard range prison sentence and instead imposed a prison-based Drug 

Offender Sentencing Alternative that required Marston to serve the first half of his 

sentence on the felony convictions in prison, followed by an equal term of 

community custody supervision by the Department of Corrections, and completion 

of various treatment requirements.

Marston timely appealed.

ANALYSIS

I. 911 Call

Marston first claims the trial court erred in admitting the 911 recordings, 

arguing the State failed to properly authenticate the calls. The standard of review 

for a trial court’s decision on the authenticity of proffered evidence is abuse of 

discretion. State v. Payne, 117 Wn. App. 99, 110, 69, P.3d 889 (2003). “A trial 

court abuses its discretion when a decision is ‘manifestly unreasonable, or 

exercised on untenable grounds, or for untenable reasons.’” State v. Howland, 

180 Wn. App. 196, 204, 321 P.3d 303 (2014) (internal quotation marks omitted).

“A decision is based on untenable grounds if the court relies on an incorrect legal 

standard or does not correctly apply the law.” State v. Hill, 6 Wn. App. 2d 629, 

640, 431 P.3d 1044 (2018). 

In order for a trial court to admit a recording as evidence, the party 

introducing it must identify or authenticate it. State v. Williams, 136 Wn. App. 486, 
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499-500, 150 P.3d 111 (2007). “The requirement of authentication or identification 

as a condition precedent to admissibility is satisfied by evidence sufficient to 

support a finding that the matter in question is what the proponent claims.” ER 

901(a). “Because the proponent must make only a prima facie showing of 

authenticity, ER 901 is met if the proponent shows enough proof for a reasonable 

fact-finder to find in favor of authenticity.” Payne, 117 Wn. App. at 109. 

When voices are recorded, the individuals speaking must be identified. ER 

901(b)(5); Williams, 136 Wn. App. at 500. “The identity of a party may be 

established by direct or circumstantial evidence.” State v. Danielson, 37 Wn. App. 

469, 471, 681 P.2d 260 (1984). Direct identification of voices by an actual 

participant in the recorded conversation is not required. Williams, 136 Wn. App. 

at 500. The contents of a proffered phone conversation can provide sufficient 

evidence of identification and authentication. Danielson, 37 Wn. App. at 471.

Engle was not present at trial to testify, so neither the court or jury were able 

to compare her voice to that on the recorded call. Nonetheless, there was enough 

circumstantial evidence to authenticate the 911 recordings.

Marston argues in his opening brief that, under State v. Jackson,

1

the party proffering the phone conversation must call a foundational 

witness to testify (a) that the witness has personal knowledge of the 

events recorded on the tape; (b) that the witness listened to the tape 

and compared it with those events; (c) . . . that the tape accurately 

portrays those events[, and] [i]f the tape records human voices, the 

foundational witness must identify those voices.

(Emphasis added.) However, Marston mischaracterizes the holding of Jackson. 

While the court in Jackson affirmed the method of authentication advocated for by 

 1 113 Wn. App. 762, 766-67, 54 P.3d 739 (2002).
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Marston, it also explained that “[t]his method is not exclusive, and a proponent may 

also use any other that produces evidence sufficient to support the basic findings 

of identification and authentication.” 113 Wn. App. at 769. Thus, Jackson does 

not stand for the proposition that deviating from Marston’s desired method of 

authentication is an abuse of the trial court’s discretion. Rather, Jackson supports 

a wide range of identification methods depending on the facts of each case.

2

Marston avers that the admission of the 911 call prejudiced him because it 

was used to convict him of obstruction. However, even without the admission of 

the call, the admission of body-worn camera footage from that night showed

Marston up in the tree in Engle’s backyard refusing to cooperate with authorities. 

That evidence was corroborated by testimony from SPD officers who responded 

to the scene.

The combination of Engle’s self-identification during the 911 call and other 

circumstantial evidence supports the trial court’s finding that the call at issue was 

authentic. In the call, the speaker indicated her name is Melanie Engle. Engle 

gave the 911 operator her address and phone number. She described where her 

townhouse was situated in relation to where SPD units were out searching. During 

the call, Engle stated, “[H]e jumped over the fence. It’s difficult to get into my 

backyard . . . he had to have jumped over many fences to get where he’s 

at. . . . There’s police lights flashing.” Engle talked about officers searching around 

 2 For example, the court in Jackson describes cases from our state Supreme Court where 

it “held that a tape can be authenticated by showing (1) that the recording machine was ‘capable 

of taking testimony,’ (2) that its operator was ‘competent to operate it,’ (3) that the resulting record 

is authentic and correct, (4) that the resulting recording has been preserved without changes, 

deletions, or additions, and (5) the identity of each relevant speaker.” 113 Wn. App. at 767 (internal 

quotation marks omitted) (quoting State v. Williams, 49 Wn.2d 354, 360, 301 P.2d 769 (1956)).
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her backyard with flashlights multiple times throughout the call. Engle told the 911 

operator the man in her yard was standing “next to [her] tree, and he d[id]n’t have 

a shirt on.” Engle moved away from the window worried she would be seen by the 

person in her yard and lost sight of him. At the conclusion of the 911 call, Engle 

indicated she was going to give officers permission to access her backyard through 

her residence. 

The statements made on the 911 call were corroborated by other 

circumstantial evidence at trial. SPD Officer Jeremy Weiss testified he “jump[ed] 

multiple fences prior to finding the suspect.” SPD Sergeant Adam Beatty3 testified

that “officers were using their flashlights” when trying to get Marston to come down 

from the tree. Likewise, Weiss described “a very large tree” where the officers 

“eventually saw the suspect.” Portions of Weiss’ body camera footage from the 

incident were also admitted at trial. In the video, police are seen shining flashlights 

into a tree at Marston, who is not wearing a shirt. The footage shows officers trying 

to convince Marston to climb down, with some officers standing in the backyard of 

a home. These officers appear to have entered the yard through the home via a 

sliding door which was standing open.

The 911 call was properly authenticated: Engle self-identified and the 

contents of her call were corroborated by testimony at trial from SPD officers who 

were present at her residence on July 4, which provided circumstantial evidence 

that the call was authentic. The trial court did not abuse its discretion when it

admitted the 911 call.

 3 Beatty was a patrol officer at the time of the incident but a sergeant when he testified at 

trial.
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II. Jail Call

Like the 911 call from Engle, Marston argues that the jail phone call was not 

properly authenticated.4 However, as with the other call, a combination of selfidentification and circumstantial evidence support the trial court’s finding that the 

jail call was authentic. Trial testimony from Sergeant Fred Graves, a corrections 

sergeant at the King County Jail, established that there are several mechanisms 

in place that incarcerated people must use in order to make a call from the jail.

Graves explained that individuals must use their “booking of arrest number” and a 

PIN5 that is meant to be kept secret. The unique numbers allow prison officials to 

track which incarcerated person is making a call, and who they are contacting. 

Additionally, he noted that when individuals incarcerated at the King County Jail 

first use the phone system there, they are prompted to submit samples of their 

voice so that each subsequent call they make can be verified through biometric 

technology. Although Marston did not directly identify himself by name in the 

recorded call at issue, the testimony from Graves indicates that Marston had to 

enter multiple pieces of self-identifying information in order to make the call that 

was ultimately recorded and saved to his file.

Although neither Marston nor Ramsey testified at trial, the jail phone call 

was one of a number of recordings of their voices that were admitted and played

for the jury. Two 911 calls Ramsey made during the incident were admitted, as 

 4 Marston also avers that the jail call was admitted as a business record. The State 

correctly notes that was not a basis for admission found by the trial court. Accordingly, we need 

not consider Marston’s argument on this point.

The State further concedes use of the term “res gestae,” by itself and the trial court, in 

considering admissibility of the jail call was a misapplication of that doctrine. Because res gestae

does not actually appear to have been a basis for admission, no further analysis is required.

5 Personal identification number.
No. 84973-5-I/8

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well as body camera footage from SPD officers responding to each of her calls. 

Marston’s voice can be heard on separately admitted body camera footage after 

Engle’s 911 call, when he indicated that he was unwilling to come down from the 

tree in her yard. With that additional evidence, the court was able to compare 

Marston and Ramsey’s voices across different recordings. The contents of the 

conversation in the recorded jail call provided other circumstantial evidence that 

tended to show its authenticity. For example, Marston refers to spending hours in 

a tree and accuses Ramsey of “defending [Minden] over [him].” Ramsey talks 

about the actions of her dog, just as she did on her 911 call and in bodycam footage 

from officers responding to her call, both of which were played at trial, and Marston 

references the injury he sustained from her dog. Therefore, the trial court did not 

abuse its discretion when it found that the jail call was properly authenticated.

A. Adoptive Admissions

Marston also asserts that Ramsey’s statements in the jail call were 

inadmissible hearsay. He argues the trial court erroneously found that Marston 

adopted Ramsey’s statements. We review a trial court’s decision on the admission 

of evidence for abuse of discretion. State v. Dobbs, 180 Wn.2d 1, 10, 320 P.3d 

705 (2014). “Hearsay” refers to an out-of-court statement of a declarant that is 

offered to prove the truth of the matter asserted. ER 801(c). “Hearsay is not 

admissible except as provided by [the] rules [of evidence].” ER 802. One such 

exception to the general prohibition on hearsay is an admission adopted by partyopponents. ER 801(d)(2)(ii). An adoptive admission is a statement by another 

that the opposing party “has manifested an adoption or belief in its truth.” Id. In 
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other words, a party can adopt the statements of another, either expressly or 

implicitly, rendering the statement admissible. “A party can manifest adoption of a 

statement by words or gestures. A party can also manifest adoption of a statement 

by complete silence or acquiescence.” State v. Hill, 6 Wn. App. 2d 629, 640-41, 

431 P.3d 1044 (2018) (citation omitted).

The trial court’s finding that Marston adopted Ramsey’s statements in the 

challenged jail phone call was not erroneous. The judge relied on correct legal 

standards and correctly applied the law. The trial court found that “there’s sufficient 

evidence in looking at the context of th[e] call to establish that the statements made 

by Mr. Marston are admissible as party opponent admissions under 801(d)(2), and 

so they are admissible.” To support this decision, the trial court judge reviewed

the call transcript and identified several lines where Marston replied to accusations 

made by Ramsey. Rather than denying the truth of Ramsey’s statements, 

Marston’s replies tended to dispute his intent behind the actions of which Ramsey 

accused him of during the phone call.

6 The court specifically relied on that fact to 

conclude that the statements made by Ramsey were admissible as statements of 

a party-opponent.

 6 For example, reading from the call transcript, the trial court stated, “Ramsey indicated, 

‘You don’t slap a girl in the face,’ . . . ‘you slapped me in the face twice.’ . . . ‘on my cheek,’ . . . 

[a]nd Mr. Marston . . . says something about ‘playing around with an’ unintelligible ‘chocolate. I 

was just playing like, ha-ha, I got through your defenses. I know, cause you’re always like, I could 

have killed you, I could have killed you.’ That suggests that Mr. Marston acknowledged being 

offensive to get through Ms. Ramsey’s defenses. And he’s acquiescing or assenting to her 

assertion that she was slapped.”
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1. Jury Instruction

However, even where there are sufficient foundational facts for a judge to 

admit statements as adoptive admissions, such a determination by the court is only 

preliminary in nature; it is ultimately the responsibility of the jury to determine 

whether the defendant heard, understood, and acquiesced in the accusatory 

statement. Hill, 6 Wn. App. 2d at 646. “Whether an accused has made an adoptive 

admission is thus a matter of conditional relevance to be determined ultimately by 

the jury.” State v. Neslund, 50 Wn. App. 531, 551-52, 749 P.2d 725 (1988). This 

court has previously held that “the proponent of adoptive admissions must submit 

and the court must give an instruction to the jury that informs the jury that it cannot 

consider the [statements] as evidence unless it finds under the circumstances that 

the defendant heard, understood, and acquiesced in the statements.” Hill, 6 Wn.

App. 2d at 647. Although the State alluded to the jury’s role to weigh the adopted 

admissions at trial here, counsel failed to propose or request a jury instruction.7 

Failure to provide an instruction to the jury as to the adoptive admissions was error.

2. Harmless Error

Because the failure to provide an instruction to the jury alone is not a 

constitutional issue, we analyze the error under the nonconstitutional harmless 

error standard. Constitutional and nonconstitutional errors can be subject to the 

harmless error standard. State v. Kindell, 181 Wn. App. 844, 853, 326 P.3d 876 

(2014). Constitutional errors infringe on an individual’s constitutional rights and 

 7 During argument on the admission of this call, the prosecutor stated, “It’s for the jury to 

decide and give weight appropriately as to whether or not it, in fact, was a joke.”
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are presumed prejudicial. State v. Watt, 160 Wn.2d 626, 635, 160 P.3d 640 

(2007). 

Under the nonconstitutional harmless error standard, this court must 

reverse if the error was prejudicial. State v. Matamua, 28 Wn. App. 2d 859, 876, 

539 P.3d 28 (2023). An evidentiary error is prejudicial when, within reasonable

probabilities, the outcome of the trial would have been different had the error not 

occurred. State v. Wade, 98 Wn. App. 328, 338, 989 P.2d 576 (1999).

Marston was convicted of residential burglary, obstructing a law 

enforcement officer, two counts of misdemeanor violation of a no-contact order, 

and one count of tampering with a witness.8 Ramsey did not testify at trial. Without

the admission of the jail call, the State would be left with little evidence of the 

conduct discussed in that phone conversation as the SPD officers who testified at 

trial arrived on scene after the events the State later relied upon to file some of the 

felony charges had occurred9 and, without direct knowledge, the officers could not 

testify about them with specificity. Accordingly, there is a reasonable probability

that, with an instruction limiting the use of this evidence, the jury would have come 

to different conclusions on some of the allegations faced at trial.

The record is clear, however, that the evidence relied upon for count 5, 

obstructing a law enforcement officer, count 7, tampering with a witness, and count 

9, misdemeanor violation of a no-contact order, was unrelated to the evidence 

 8 Marston was acquitted of burglary in the first degree, felony violation of a no-contact order, 

assault in the fourth degree, and a separate count of tampering with a witness. As such, jeopardy 

has attached to these counts and they are not subject to retrial. “Double jeopardy bars appeal and 

retrial when the defendant has been acquitted.” State v. Karpov, 195 Wn.2d 288, 293, 458 P.3d 

1182 (2020).

9 Tampering with a witness is a class C felony. RCW 9A.72.120(2). The two such charges 

Marston faced were alleged to have occurred months after the date of his arrest.
No. 84973-5-I/12

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challenged on appeal. In closing argument, the State highlighted the SPD body 

footage camera and Weiss’ testimony in support of its charge of obstructing a law 

enforcement officer, Marston’s communication with his friend in August and 

September 2022 as conclusive of its tampering with a witness allegation and the 

misdemeanor violation of a no-contact order set out in count 9. As such, Marston

does not establish prejudice as to these convictions based on the instructional 

error regarding adoptive admissions. We affirm the convictions in counts 5, 7, and 

9, but reverse those for counts 2 and 6 and remand.

10

III. Victim Penalty Assessment

Marston avers the court erred in imposing the victim penalty assessment

(VPA), which was mandatory at the time he was sentenced, despite his indigency. 

The State does not agree that the VPA is a “cost” captured by the applicable 

statutory amendments that went into effect after sentencing but does not dispute 

Marston’s indigency or object to remand for the trial court to strike this legal 

financial obligation. We have repeatedly held that the amendments to RCW 

7.68.035 apply to cases pending on appeal when the statutory changes went into 

effect. See State v. Phillips, 6 Wn. App. 2d 651, 677, 431 P.3d 1056 (2018); State 

v. Wemhoff, 24 Wn. App. 2d 198, 201, 519 P.3d 1056 (2022); State v. Ellis, 27 Wn. 

App. 2d 1, 16-17, 530 P.3d 1048 (2023); see also State v. Ramirez, 191 Wn.2d 

732, 747, 426 P.3d 714 (2018). Accordingly, we remand for the trial court to strike 

the VPA from the judgment and sentence.

 10 In his pro se statement of additional grounds for review, Marston presents a confrontation 

challenge regarding the State’s failure to introduce Ramsey’s testimony. If the State elects to retry 

Marston on counts 2 and 6, he may raise that issue in the trial court.
No. 84973-5-I/13

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Affirmed in part, reversed in part, and remanded.

WE CONCUR: