IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 74315-5-
Respondent, c -
DIVISION ONE
v.
CHARLES CHRISTOPHER
LANGSTON, UNPUBLISHED OPINION
Appellant. FILED: January 30, 2017
Mann, J. — A jury convicted Charles Langston of (1) identity theft in the second
degree and (2) theft in the second degree. Langston appeals one evidentiary issue:
whether the trial court abused its discretion when it admitted his admission to police
officers that he was involved in another theft they were investigating. Langton argued
that the statement was inadmissible under ER 404(b). The trial court disagreed,
concluding that because Langston's statement was allowed following a CrR 3.5 hearing,
it was admissible. The trial court abused its discretion. 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 under the Rules of Evidence.
No. 74315-5-1/2
While the error was harmless with respect to Langston's conviction for second
degree identity theft, it was 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&T store. Edmonds Police Officer
Nicholas Bickar saw two people who matched the suspects' descriptions in a casino
across the street from the cell phone store. Bickar made contact with the suspects and
asked if he could speak with them. They agreed. Bickar was soon joined by two other
police officers. Bickar asked the suspects ifthey had been at the AT&T store. The
suspects admitted that they had been at the AT&T store.
This prompted Bickar to ask Langston, one of the suspects, for his identification.
Langston identified himself as 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. A casino manager who 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 of misleading a public servant
while the servant was acting in its official capacity, a crime under RCW 9A.76.175.
At the CrR 3.5 hearing on the admissibility of Langston's statements, the three
officers testified about the reported theft and Langston's explanation of his involvement.
The court found 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, pursuant to 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 in the
cell phone incident was admissible. The court reasoned that "the full statement... has
already been deemed to be admissible." The court explained that "[t]he statement is
what it is. If [Langston] made statements that were 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 that they were responding to a report of a
cell phone theft.2 The first officer to testify, Officer Strum, was asked to describe his
initial contact with Langston. Strum testified:
So I asked him what was going on with regard to the reason why I was
contacting them, and they said that they were involved in that.[3]
Langston did not object.
Officer Bickar, the second officer called, was also asked about his initial contact
with Langston. Bickar started 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 of the jury and sustained Langston's objection.
Officer Clark, the last officer called, testified that he responded to assist in the
other officers' theft investigation and to "assist with taking Mr. Langston into custody."4
Officer Clark confirmed that they were responding to the theft of a cell phone and that
the "theft occurred across the street from 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 half before 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
2Report of Proceedings (RP) (Aug. 24, 2015) at 47-48; RP (Aug. 24, 2015) at 55 (Officer Bickar);
RP (Aug. 24, 2015) at 66 (Officer Clark).
3RP(Aug. 24, 2015) at 49.
4 See RP (Aug. 24, 2015) at 66-67.
5 See RP (Aug. 24, 2015) at 66-67.
6 See RP (Aug. 24, 2015) at 78-85.
-4-
No. 74315-5-1/5
had not used the wallet for financial gain at the casino or anywhere else a day and a
half after finding 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 that the 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 first address whether Langston preserved this issue for appeal. The
State argues that he did not because he failed to object to the statement. The State
cites the general rule that 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 a judge 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 statement for appeal.
7 See 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 in another theft the arresting officers
were investigating based solely on the statement being allowed under CrR 3.5.
Langston argues that this was an abuse of the court's discretion. We agree.
Evidentiary rulings are reviewed for abuse of discretion. State v. Davis, 175
Wn.2d 287, 318, 290 P.3d 43 (2012). A court 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 in the cell phone theft investigation was inadmissible under the Rules of
Evidence. Evidence must be relevant to be admissible. ER 402. Evidence is relevant
if it tends to make the existence of any fact that is of consequence to the determination
more or less probable than without the evidence. ER 401. Relevant "evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury." ER 403. Evidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to
show action in conformity therewith. But this evidence may be admissible for other
purposes, such as "proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence 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 material issue 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 identify the purposes for which it admits evidence under an ER 404(b) analysis on
the record. Lane. 125 Wn.2d at 832.
Here, rather than determining whether Langston's statement was admissible
under ER 404(b), the trial court concluded that because the statement was voluntarily
obtained and admissible under CrR 3.5, it was 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 under the Rules of Evidence. A CrR 3.5 hearing is a
threshold determination of whether 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 court does not
address the contents of a statement, but rather addresses the
circumstances under which the statement is made. Further analysis at
trial of admissibility under the Rules of Evidence is not foreclosed.
52 Wn. App. 507, 510, 761 P.2d 75 (1988).
Here, simply because Langston's statement was voluntary under CrR 3.5 did not
mean that it was 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 fits within 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 by proving 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 under the res gestae exception if it is necessary
to depict a complete picture for the jury. State v. Filitaula. 184 Wn. 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 intent to
commit the crime of making a false statement to a public servant who was acting in an
official capacity. See RCW 9.35.020(1); RCW 9A.76.175. The State maintains that if
the jury had not heard Langston's admission of involvement in their theft investigation,
then it would not know whether the officers were acting in their official capacity when
they asked Langston for his identification.
Langston's admission does not fit 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 in their official capacities when
Langston identified himself as Robinson. But the State did not need to prove this fact in
order to 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 that the
State is not required to state the elements of the "crime" the defendant intended to
commit in order to 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 statement to a public servant under RCW 9A.76.175, the "crime"
under RCW 9.35.020(1).
Since the State was not required to prove that the officers were acting in their
official capacities when Langston lied about his identity, Langston's admission of
-8-
No. 74315-5-1/9
involvement in the cell phone theft was irrelevant. Langston's admission of involvement
in the cell phone theft was not res gestae evidence because it did not "complete the
story of the 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 error with reasonable probability materially
affected the outcome of the 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 of the trial would have been different without the inadmissible
evidence." Gower. 179 Wn.2d at 857. We conclude that there is not a reasonable
probability that the error materially affected the outcome of the second degree identity
theft conviction, but that there is a reasonable probability that the error materially
affected the outcome of the second degree theft conviction.
A.
The error is harmless as to Langston's conviction for second degree identity
theft. Langston testified that he produced Robinson's social security card when the
police officers asked him for his identification.8 He did this in an attempt to conceal his
identity so that the officers would not discover his outstanding arrest warrants.9
Langston's testimony amounted to an admission to the charge of second degree identity
8 See RP (Aug. 24, 2015) at 80-81.
9 See RP (Aug. 24, 2015) at 81.
No. 74315-5-1/10
theft and an intent to mislead a public servant. See RCW 9.35.020(1); RCW 9A.76.175.
Langston's admission to involvement in the 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 in the cell phone theft likely damaged his credibility because it made him look
like a thief generally. Evidence that Langston told officers he was involved in the cell
phone theft made it more likely that jurors 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 in part on appeal and requests that we exercise our discretion
to deny the State appellate costs. The State requests fees under RCW 10.73.160.
This court has discretion to deny an award of appellate costs ifthe State
substantially prevails on appeal. RCW 10.73.160; State v. Sinclair. 192 Wn. 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.
*l*«tfi.
WE CONCUR:
Um4 cIf •C^/vA^w
1
Ol.
-11-