### FILED 

# COURTOFAPPEALS DIVISION II 

# 2015FE8 1D AN 8: 58 ST 

### u" 5 V " lt TON BY 

### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

v. BRYAN ALLEN WEAVER, DIVISION II Respondent,

Appellant. No. 45353 -3 -II

UNPUBLISHED OPINION SUTTON, J. — 

### Bryan Allen Weaver appeals his conviction for first degree trafficking in stolen property. Weaver argues that the trial court erred 

### by ( 1) 

### admitting evidence that he concealed himselffromthe arresting sheriffs deputies and (2) imposing legal financial obligations LFOs) without considering his financial resources. He requests reversal and remand for a new trial or, alternatively, remand for resentencing. 

### Holding that ( 1) the trial court did not err in 

### admitting evidence ofWeaver's condealment, but ifit did the errorwas harmless, and (2) Weaver cannot object to the imposition of LFOs for the first time on appeal, we affirm. FACTS 

### A school bus driver reported to the Cowlitz County Sheriff's Office that she had observed 

## two men in a car circle aparking lot and stop at adrain grate. The two men got out ofthe car and looked at the grate; the driver got back in the driver' s seat and the passenger directed the driverNo. 45353 -3 -II



### closerto the grate. The passenger picked up the grate, placed it in the car' s trunk,and got back in the car before the driver sped out ofthe parking lot. 

### Later than same day, using the license plate number and vehicle description provided by the bus driver, sheriff deputies contacted Bryan Allen Weaver and his friend, Louis Hardrock 

## Younger. Before questioning Weaver,one ofthe deputies advised Weaver ofhis Miranda' rights and asked him if he would give a statement about the incident. Weaver said that he and his 

### girlfriend had used the car described by the bus driver to collect scrap metal and admitted that he
met with Younger in the parking lot earlier that 

### day. Weaver explained that Younger had put 

### something" in the car' s trunk, although Weaver didn't know whatthe object was, and the two of them exchanged the object at ascrap metal shop for nine dollars. Verbatim Report ofProceedings VRP) at 67. A receipt obtained bythe deputies confirms thatWeaver sold metal atthe scrap shop 

### that day. 

### The day after Weaver's interview, deputies arrested Younger in his home, which was

across the street from Weaver' s home. The deputies then crossed the street to arrest Weaver. 

### Cheryl Rapp, Weaver' s girlfriend's mother, directed the deputies to look for Weaver outside, but they were unable to locate him. 

### Returning to the inside ofthe home, one ofthe deputies found Weaver in a child' s bedroom under a pile of "blankets on the floor that were moving." VRP at 56. 

### Rapppulledbackthe blankets,butWeaver ignored both deputies and continued his "sleeping ruse" until they announced their presence and asked him to show his hands. 2 VRP at 57. The State, 

### 1 Miranda v.Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 2 Before trial, Weaver objected to this testimony as irrelevant and unduly prejudicial. The trial court overruled Weaver' s objection and allowed the testimony. 2No. 45353 -3 -II



### during closing argument, told the jurythat Weaver had been " hiding" from arrest for an offense that " he [ knew he was] a suspect in." VRP at 112. 

### Thejury returned a guiltyverdict on one count offirst degreetrafficking in stolen property. 

## Atsentencing,thetrial courtimposed LFOs.3 In itsjudgmentand sentence,thetrial courtincluded boilerplate language stating that it found Weaver had the ability to pay or " likely future ability to pay" the imposed LFOs. Clerk' s Paper at 31. Weaver appeals. ANALYSIS I. EVIDENCE OF CONCEALMENT Weaver argues that the trial court abused its discretion when it admitted evidence that he concealed himselffrom the deputies because the evidence was not probative and the trial court did 

## not conduct any analysis on the record regarding its admissibility. The trial court did not err, but if it had erred the error was harmless. A. Consciousness of Guilt Inference 

### We review evidentiary rulings for abuse ofdiscretion. State v. Franklin, 180 Wn.2d 371, 377 n.2, 325 P. 3d 159 ( 2014). 

### A trial court abuses its discretionwhen the decision was manifestly unreasonable or based upon untenable grounds or reasons. State v. Garcia, 179 Wn.2d 828, 844, 318 P. 3d 266 (2014). Evidence of concealment is analyzed under the same rules as evidence of flight because

our law does not define what circumstances constitute flight. 

### State v. McDaniel, 155 Wn. App.

3 The trial court imposed the 

### following LFOs: ( 1) $ 500.00 

### for the victim penalty assessment, ( 2) 600. 00 in court costs, ( 3) $ 825. 00 for a court appointed attorney, ( 4) $ 100.00 for the DNA deoxyribonucleic acid) collection fee, and (5) $ 149. 19 in restitution. 3No. 45353 - 3 -I1 829, 854, 230 P.3d 245 ( 2010). Evidence of concealment is admissible " if the trier of fact can reasonably infer the defendant' s consciousness of guilt ofthe charged crime." McDaniel, 155 Wn. 

### App. at 854. 

### Because such evidence tends to only be " marginally probative" as to the person' s guilt or innocence, the inference of consciousness of guilt must be " substantial and real, not speculative, conjectural, or fanciful." 

### State v. Freeburg, 105 Wn. App. 492, 498, 20 P.3d 984 2001). The probative value of evidence of concealment depends on the "' degree of confidence "' with which four inferences can be drawn from the circumstances of the defendant' s arrest: ( 1) from the defendant' s behavior to concealment; (2) from concealment to consciousness of guilt; (3) 

### from consciousness ofguilt to consciousness ofguilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. 

### McDaniel, 155 Wn.App. at 854 (quoting Freeburg, 105 Wn.App. at 498). The trial court did not abuse its discretion in admitting evidence ofWeaver' s concealment because the circumstances ofWeaver' s arrest lead to an inference that he concealed himself from the officers. At the time officers came to his home to arrest him, Weaver knew that deputies 

### suspected thathe stole the metal grate because they had interviewed him about it. He admitted to the deputies that he was atthe parking lot with Younger and that he sold the object that Younger 

### put inthetrunkatthe scrap shopthat day; he claimed onlyto notknowwhatthe objectwas. Before the officers came to his home to arrest him,they hadjust arrested Younger across the street. One ofthe deputies found Weaver under blankets in a child' s bedroom after Rapp had directed the deputies to look for Weaver outside. 

## Considering the entirety ofthe circumstances ofthe deputies' investigation and Weaver's knowledge ofit,thejury .

could have reasonably inferred thatWeaver's concealment demonstrated
4No. 45353 -3 -II

his consciousness of guilt of the charged crime. 

### The trial court did not abuse its discretion by admitting this evidence. B. Harmless Error 

### Weaver next argues thatthe testimonythat deputies found Weaver underneath blankets in 

### a child's bedroom, after they were looking for him to arrest him, had a reasonable probability of 

### materially affecting the trial outcome because the State used this evidence to argue thatthejurors should find Weaver guilty. We disagree. 

### Erroneous admission of evidence is grounds for reversal only ifthe error was prejudicial. Garcia, 179 Wn.2d at 848. An error is ' not prejudicial unless, within reasonable probabilities, the outcome ofthe trial would have been materially affected had the error not occurred.' Garcia, 179 Wn.2d at 848 (quoting State v. Bourgeois, 133 Wn.2d 389, 403, 945 P. 2d 1120 ( 1997)). Where 

### improperly admitted evidence was of "minor significance" compared to the evidence as a whole, the error was harmless. Bourgeois, 133 Wn.2d at 403. Even if admission of Weaver' s concealment was in error, we conclude that there is no 

### reasonable probabilitythatthetrial outcome would have been different hadthetrial court excluded this evidence. 

### The bus driver observed two men drive around a parking lot and stop to look at a drain grate; one ofthe men drove closer to the grate and the other man threwthe grate in the trunk 

### before they drove off. Weaver admitted to being in the parking lot with Younger and in the car described bythe bus driver, and to exchanging the objectthat Younger put in the trunk at a scrap metal shop. He claimed only to not have known what the object was. Evidence of Weaver' s concealment cannot be said to have affected the trial outcome.

5No. 45353 -3 -II II. IMPOSITION of LFOs 

### Weaver next argues that the trial court erroneously imposed LFOs because it did not 

## discuss on the record his ability to paythem.4 In itsjudgment and sentence, thetrial court found that Weaver had the ability to pay its imposed LFOs after considering Weaver's financial resources. Weaverdid notobjectto this finding ortothetrial court' s imposition ofLFOs. Because Weaver did not object below, we decline to address the merits of his claim of error on appeal. 

### RCW 10.01. 160(3) prohibits the trial court from imposing LFOs unless the defendant has

or will have the ability to pay them. To determine the proper dollar amount to impose, the trial court must considerthe defendant' s financial resources and the " nature ofthe burden that payment of costs will impose." RCW 10. 01. 160(3). 

### The trial court is not constitutionally required to make these considerations at sentencing, however. State v. Blank, 131 Wn.2d 230, 241 -42, 930 P.2d 1213 ( 1997). 

### The trial court is not required to make formal findings on the defendant' s ability to 

### pay until the State seeks to collectpayment ofLFOs. Blank, 131 Wn.2d 242.

Ifa claim of error is not ofconstitutional magnitude and the appellant did not raise it in the trial court, we may refuse to review the claim of error under RAP 2. 5( a). All three divisions of our court have held that a defendant' s failure to object to the trial court' s imposition of 

### discretionary LFOs at the time of sentencing is a failure to preserve error on appeal. State v. Blazina, 174 Wn.

### App. 906, 911, 301 P. 3d 492, reviewed granted, 178 Wn.2d 1010 (2013); State

4 Weaver does not challenge the imposition ofthe $500.00 victim penalty assessment, the $ 100. 00 DNA collection fee, or the $ 

### 149. 19 in restitution. He challenges only the discretionary LFOs of 

### 600.00 in court costs and $825.00 for his court-appointed attorney. 6No. 45353 -3 -II

v. Calvin, 176 Wn. 

### App. 1, 316 P. 3d 496, 507 - 08 ( 2013), petition for reviewfiled, No. 89518 -0 Wash. Nov. 12, 2013); State v. Duncan, 180 Wn.

### App. 245, 253, 327 P. 3d 699 (2014). Although Division Two considered the merits of Bertrand' s claim of error for imposition of LFOs in State

v. Bertrand,5 we are not compelled to do so in every case. 

### Blazina, 174 Wn. App. at 911 

### explaining that review ofBertrand's claim was warranted because she had disabilities that might reduce her future ability to pay, but nothing suggested that Blazina's case was similar to compel review of his claim). Here, like Blazina, the record does not suggest that Weaver faces unique circumstancesthat should compel us to reviewthe trial court' s imposition ofLFOs. Thus, because Weaver did not preserve the issue for appeal, we decline to address the merits ofhis appeal on this issue. We affirm, 

### holding that ( 1) the trial court' s admission of evidence of Weaver' s concealment was not erroneous but would have been harmless if admission was in error and (2)

5 State v. Bertrand, 165 Wn.

### App. 393, 404, 267 P.3d 511 ( 2011), review denied, 175 Wn.2d 1014 2012). 7No. 45353 -3 -II

Weaver cannot raise his objection to the trial court' s imposition of LFOs for the first time on appeal.

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed for public record in accordance with RCW 2.06.040, it is so ordered. 

# A______/ 41'

el,.. 

# 4' Sutton, J. We concur: 

# eveutsd„.. Wors. ick, P.J.