IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 81838-4-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
JAY MARIA CHRISTENSEN,
Appellant.
APPELWICK, J. — Christensen challenges multiple convictions stemming
from two robberies. He argues the State did not prove harassment beyond a
reasonable doubt. He also argues the trial court erred in admitting evidence of his
past drug use. He further argues the prosecutor elicited impermissible testimony
related to uncharged robberies. He argues the prosecutor rearraigned him with
additional charges in retaliation for him seeking trial, tampered with a witness, and
elicited false testimony. He argues evidence should have been suppressed due
to chain of custody issues. We affirm.
FACTS
On September 15, 2016, a man robbed a Shell gas station in Gig Harbor
with a short-barreled shotgun. The man was wearing a red and black jacket,
athletic shoes, and had a blue bandana covering his face. He wore at least one
blue glove, apparently made of a latex-like material. The man demanded money
from the register, placed the money in his pocket, and left the store. The suspect
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had arrived in a tan sedan with what appears to be blue tape covering the license
plate. The car appeared to have a handicapped placard handing from the rearview
mirror. Police later recovered a ball of blue tape from the scene. A latent
fingerprint was recovered from the tape. Investigators determined the print
matched prints from Jay Christensen.
On October 19, 2016, Christensen got a call from a friend who was at a
local Denny’s restaurant informing him that the cash register was full and there
were very few people in the restaurant. Christensen got Steven Sommer, who
lived in a trailer on the same property as Christensen, to drive him to the Denny’s.
Sommer claims that Christensen asked him for a ride to get cigarettes, but
once they were in the truck, Christensen hit him with a shotgun and forced him to
drive to the Denny’s. Christensen’s girlfriend Sandra Whitehead, who also lived at
the property, testified that Sommer willingly agreed to drive Christensen to the
Denny’s so he could rob the restaurant.
Christensen arrived at the Denny’s and entered the store with a short-
barreled shotgun. He was wearing a black jacket and had a white bandana
covering his face. He approached the clerk at the register and demanded money
from the till and valuables from people in the restaurant. The clerk refused to take
belongings from restaurant patrons, instead proceeded to try and open the till. The
clerk’s hands were shaking so she had trouble opening the till. Christensen
responded by counting down from 10 and telling the clerk he would kill her and
would start killing Denny’s customers.
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Two patrons sitting at a table nearby witnessed the robbery. The two moved
so as not to be in Christensen’s line of sight because they realized a robbery was
taking place. They told a cook to call 911. One patron testified that she heard
Christensen tell the clerk that he would start killing people if he didn’t get money.
She testified that they saw Christensen had a gun and decided to “get out of there”
because “it wasn’t worth [their] life.” The two eventually hid in a closet until police
arrived.
Once the clerk opened the register, Christensen took money and left the
restaurant. He got into the passenger side of the waiting truck and drove away.
Police responded to a call of an armed robbery at the Denny’s. They
observed a truck leaving the area. Officers pursued the truck. After some pursuit,
the truck crashed into a cement pillar.
Officers then pinned the vehicle against the pillar to prevent its escape.
Officers yelled commands to the truck’s occupants to put their hands up and drop
any weapons. The driver attempted to comply with these demands, but the
passenger was grabbing the driver and pushing him around in his seat and
screaming at him. Officers saw the passenger holding a gun and pointing it at the
driver. An officer then shot the passenger in the head. The passenger survived
the gunshot wound and was taken to the hospital for care. Officers were later able
to identify Christensen as the passenger. Sommer testified to being the driver. He
testified that Christensen forced him to flee the police but that he had intentionally
crashed to end the chase.
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Police conducted a search of Christensen’s trailer. They recovered shoes
similar to those worn by the robber of the Shell station. They also recovered a box
of blue latex gloves similar to those worn by the Shell robber, a blue bandana
similar to that worn by the Shell robber, and shotgun shells. They also discovered
a tan sedan with a handicapped parking placard on the property, similar to the one
used in the Shell robbery. Police found blue masking tape in the trunk of the car.
The State charged Christensen with two counts of robbery in the first
degree, two counts of unlawful possession of a firearm, two counts of unlawful
possession of a short barreled shotgun, two counts of harassment, kidnapping in
the first degree, attempting to elude a police vehicle, assault, and obstructing a law
enforcement officer. A jury found him guilty on all counts except one harassment
count.
Christensen appeals.
DISCUSSION
Christensen makes eight arguments: the first three in his opening brief and
the remaining five in his statement of additional grounds. First, he argues the State
failed to prove its claim of harassment of Denny’s customers beyond a reasonable
doubt. Second, he argues that the trial court improperly admitted evidence of his
past drug use. Third, he argues that the trial court erred in allowing the State to
elicit testimony concerning uncharged robberies. Fourth, he argues that the State
vindictively rearraigned him with additional charges in retaliation for his choosing
to go to trial. Fifth, he argues the State committed misconduct by intimidating
Whitehead, a witness in the case. Sixth, he argues the State elicited false
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testimony from Steve Sommer. Seventh, he argues the trial court improperly
allowed evidence to be admitted that was improperly collected and had a broken
chain of custody. Last, he argues that cumulative error deprived him of his right to
a fair trial.
I. Substantial Evidence
Christensen argues that the State failed to prove that he harassed Denny’s
customers other than the clerk. To prove this charge, the State needed to prove
that Christensen knowingly threatened to injure a person in Denny’s without lawful
authority, and that the person was placed in reasonable fear that the threat would
be carried out. RCW 9A.46.020(1). Christensen argues that the State failed to
prove that any patron who heard Christensen’s threat was actually in fear that he
would carry it out.
Evidence is sufficient to support a conviction if, viewed in the light most
favorable to the prosecution, it permits any rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d
192, 201, 829 P.2d 1068 (1992). Such a challenge admits the truth of the State’s
evidence and all inferences that can reasonably be drawn therefrom. Id. All
reasonable inferences from the evidence must be drawn in favor of the State and
interpreted most strongly against the defendant. Id.
Here, a Denny’s patron testified that she overheard Christensen’s threat to
kill people in the restaurant. She testified that she moved because “it wasn’t worth
[her] life.” She further testified that she hid in a closet until police arrived. That the
patron was afraid for her life is a reasonable inference that must be drawn and
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interpreted most strongly against Christensen. A rational trier of fact could easily
conclude that the patron was afraid for her life.
Christensen’s challenge is limited to whether the patron was placed in fear.
His challenge fails.
II. Evidentiary Rulings
Christensen argues the trial court erred in admitting evidence of his drug
use. The State argues the evidence was permissible to establish motive and to
impeach the credibility of Whitehead, whom it argues was likely to testify favorably
to Christensen because she felt guilty for introducing him to heroin. Christensen
also argues the State impermissibly elicited testimony regarding uncharged
robberies.
Evidence of prior bad acts is inadmissible to prove propensity to commit
other bad acts. ER 404(b). It may, however, be admissible for other purposes,
such as to show motive. ER 404(b). Evidence of prior bad acts is admissible if its
probative value is not substantially outweighed by the danger of unfair prejudice.
ER 403. We review a trial court’s decision on the admissibility of evidence for
abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
A trial court abuses its discretion if its decision is manifestly unreasonable or is
based on untenable grounds or reasons. Id.
The trial court here found that evidence of Christensen’s drug use was
probative because it tended to show his motive for committing the robberies.
Whitehead testified that she had introduced him to heroin. She testified that her
and Christensen’s drug habit cost about $200 per week. She testified that they
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spent about $300 per month on rent and had additional food expenses. She
testified that both she and Christensen had been laid off and were receiving
unemployment benefits. But, she testified that they were not experiencing financial
hardship. However, she earlier told a detective that the two were spending all their
money on heroin.
Christensen argues that there was ample evidence in the record of his
financial hardship without referring to their heroin use. But, Whitehead denied this
so there was also evidence that they were not experiencing financial hardship. In
light of Whitehead’s denial that she and Christensen were experiencing financial
hardship, evidence that the two were spending $200 per week on heroin was
probative of their financial troubles. And, it is reasonable to believe that
Whitehead, having introduced Christensen to heroin, might be motivated to testify
in a way that was more favorable to him. While there is undeniably some prejudice
associated with drug use, the trial court mitigated this by instructing the jury to
consider the evidence for only motive and Whitehead’s potential bias. We
therefore find that the trial court’s decision was not manifestly unreasonable and
was not an abuse of discretion.
Christensen also claims that the prosecution impermissibly elicited
testimony that he committed uncharged robberies. The State questioned
Whitehead about a statement from her that the two argued about Christensen’s
robberies. Christensen argues that the reference to multiple robberies implied that
there were robberies that had not been charged. But, Christensen was charged
with multiple robberies in this case. Therefore, in the light most favorable to the
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state, this testimony is most reasonably understood as referring to those robberies
that he was charged with. No improper testimony was elicited.
III. Prosecutorial Vindictiveness
Christensen argues the prosecutor vindictively rearraigned him with
additional charges in retaliation for him exercising his right to go to trial. He argues
this is so because the prosecutor brought several additional charges after he
rejected a plea deal. Prosecutors may not punish the defendant with additional
charges solely for exercising their right to trial. See United States v. Goodwin, 457
U.S. 368, 372, 102 S. Ct. 2485, 73 L. Ed .2d 74 (1982) (prosecutors may not punish
defendants for exercising their rights). However, we do not presume a
prosecutor’s additional charges are vindictive absent any evidence of
vindictiveness. See id. at 380-81. This is in part because the prosecutor may
discover additional information that suggests a basis for further charges prior to
trial. Id. at 381.
Such was the case here. Christensen acknowledges that the additional
charges in this case were precipitated by Sommer agreeing to testify against
Christensen. This cooperation enabled the prosecution to charge several crimes
that would have previously been difficult to prove, such as the kidnapping of
Sommer.
Not all the additional charges can be traced to Sommer’s cooperation. For
example, the State added two charges for unlawful possession of a short barrel
shotgun. But, Christensen has not presented any evidence that the prosecutor
brought those charges vindictively. He argues that we should presume
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vindictiveness because the additional charges were brought after failed plea
negotiations. The Supreme Court has directed caution in applying such a
presumption in the absence of evidence. Id. at 381.
We reject Christensen’s claim because he has shown no evidence of actual
vindictiveness and because legitimate reasons for additional charges can be
shown from the record.
IV. Prosecutorial Misconduct
Christensen argues that the prosecutor committed misconduct by
tampering with Whitehead’s testimony and accepting false testimony from
Sommer.
Christensen argues that the prosecutor tampered with Whitehead’s
testimony by playing recordings of Christensen’s jail calls with another woman and
asking if she was sure that she was Christensen’s girlfriend. It was Christensen
who elicited testimony from Whitehead regarding the interaction. He claims this
was done to influence Whitehead to change her testimony. But, Christensen does
not claim that the prosecutor ever asked Whitehead to change her testimony. The
identity of the woman on the calls was of legitimate interest to prosecutors.
Whether Whitehead was protecting Christensen due to her relationship with him
was of legitimate interest to the prosecution. It was reasonable for the prosecutor
to ask Whitehead about the calls. Christensen cites to no authority that supports
the proposition that a legitimate line of questioning can be considered prosecutorial
misconduct.
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Christensen further argues that the prosecution elicited false testimony from
Sommer. He offers only conflicting testimony from Whitehead, his own bare
assertion, and the fact that Sommer was initially charged in the robberies before
agreeing to cooperate with the State, to prove that the testimony is false.
Christensen has the burden to prove the testimony was actually false. See United
States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). He has not met that
burden.
V. Chain of Custody
Christensen argues that the ball of blue tape recovered from the Shell gas
station should not have been admitted because of issues with the chain of custody
of that evidence. He points out that the officer who collected the tape claimed to
have left his glove in the bag with it, but subsequent handlers of the evidence
reported no glove. He takes issue with improper recording of dates on the
evidence log and discrepancies with the memory of those who handled and
collected the evidence.
Minor discrepancies and uncertainty on the part of witnesses generally go
to the weight of evidence, not admissibility. State v. Campbell, 103 Wn.2d 1, 21,
691 P.2d 929 (1984). The identity and condition of evidence are always subject
to rebuttal, and the jury is free to disregard evidence if it finds that it was not
properly identified or there has been a change to its character. Id. The trial court
has a wide latitude of discretion in determining admissibility, which will not be
disturbed absent clear abuse. Id.
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Christensen concedes that he was permitted to elicit testimony regarding
issues with the chain of custody and condition of the evidence. The trial court
therefore properly allowed the jury to weigh the evidence it needed to disregard
the evidence if it so chose. It did not abuse its discretion in admitting the evidence.
VI. Cumulative Error
Christensen argues that cumulative error deprived him of his right to a fair
trial. An accumulation of non-reversible errors may deny a defendant a fair trial.
State v. Perrett, 86 Wn. App. 312, 322, 936 P.2d 426 (1997). Because we find no
errors occurred, the doctrine of cumulative error is inapplicable here.
We affirm.
WE CONCUR:
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