Filed
Washington State
Court of Appeals
Division Two
June 21, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 57468-3-II
Respondent,
v.
ERNEST LEE WEST, JR., UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Ernest Lee West Jr. appeals his conviction and sentence for residential
burglary. West argues that he is entitled to a new trial because the trial court abused its discretion
in denying his motion for a mistrial. West also argues that he is entitled to resentencing because
the trial court abused its discretion in denying his request for an exceptional sentence below the
standard range.
We hold that the trial court did not abuse its discretion in denying West’s motion for a
mistrial. We also hold that the trial court did not abuse its discretion in denying West’s request
for an exceptional sentence. Accordingly, we affirm West’s conviction and sentence for residential
burglary.
FACTS
I. THE UNDERLYING INCIDENT
On January 10, 2021, Richard Sollom visited one of his rental properties in downtown
Bremerton because his tenant, Forrest Findley, had been out of the country on naval deployment
for an extended period of time. Sollom did not expect to see anybody at the home during the visit.
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Sollom entered the home and noticed that things were different despite visiting three days
prior. He noticed food on the kitchen counter and wrappers of some kind thrown about the area.
When he went to the bedroom, he found “the closet door had been open[ed], and stuff rifled
through and stuff [placed] on the bed.” Report of Proceedings (RP) at 325.
Sollom walked out to the living room and discovered West sleeping underneath a blanket
on the couch. West woke up and introduced himself. West told Sollom that he had permission
from his friend to be in the home. However, West could not identify the friend. After this brief
interaction, Sollom walked outside and called the police.
At about 9:30 A.M., Alexander George, an officer for the Bremerton Police Department,
arrived on the scene. Sollom and West were standing in front of the residence. George detained
West and placed him in the back of the patrol vehicle.
Detective Beau Ayers arrived on the scene shortly thereafter. After Miranda1 warnings,
Ayers asked West if he had permission to be in the home. West replied that he did because “the
forest people provided him a green vacant form.” RP at 302. Ayers eventually understood West’s
reference to the “forest people” to mean the name “Forrest Findley”—Sollom’s tenant—because
his investigation revealed that name ascribed to multiple forms, documents, and papers found in
opened dressers. West also told Ayers that he had been staying at the home for several days by
this time.
Ayers asked West where he could find the vacant form. West replied that the document
could be found in a black bag in the bedroom. West told Ayers that “there may be some of his
items or his belongings in the backpack as well as a firearm.” RP at 303. The firearm was not
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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functional because it appeared to be missing the firing pin. West told Ayers that he found the
firearm in one of the dressers and placed it in the bag for safety.
During the investigation, Ayers also observed a partially opened window with a palm print
on it. West admitted to Ayers that the palm print was his and that he entered the residence through
that window. When Ayers asked West why he did not enter through the front door, West could
not provide a reason.
On January 11, the State charged West with one count of burglary in the second degree.
On May 3, 2022, the State amended the information and charged West with one count of residential
burglary.
II. THE TRIAL
On May 4, the case proceeded to a jury trial.
A. Pretrial Order
Prior to trial, West moved “[f]or an order prohibiting any mention of Mr. West legally not
[being] allowed to be in possession of a firearm.” RP at 309. The trial court granted the motion.
B. Ayers’s Testimony and Mistrial Motion
Ayers was the first witness in the trial. On redirect, the State elicited the following
testimony from Ayers:
Q. Detective, did [West] volunteer information about the firearm
immediately?
A. No, he did not.
Q. Did it appear that he was hesitant to discuss the firearm?
A. Yes.
Q. What led you to believe that he wasn’t eager to discuss the firearm?
A. After he did disclose, I asked him if he was supposed to be in possession
or obtain a firearm and he said no.
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Sustained.
[THE STATE]: Nothing further, Your Honor.
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[DEFENSE COUNSEL]: Your Honor, I’d ask to be heard outside the
presence of the jury.
RP at 307-08. The court excused the jurors from the courtroom.
West moved for a mistrial. West argued that Ayers’s testimony relating to West’s right to
possess a firearm was highly prejudicial and that a limiting instruction could not remedy the
prejudice.
The State argued that it “didn’t try to elicit anything about the illegality of possessing the
firearm” with its line of questioning and that it “forgot to admonish [the] Detective not to mention
any kind of [Department of Corrections] DOC supervision status.” RP at 308. The State also
argued that that a curative instruction could remedy any resulting prejudice because the jury did
not hear anything about West’s conviction status, DOC supervision status, or prison release.
The trial court found that the State violated the pretrial order discussed above, but did not
believe that there has been enough for a mistrial in this case. Accordingly, the court denied the
motion.
The court then provided the following curative instruction to the jury: “Ladies and
gentlemen, you are to disregard the last question as asked of this witness as well as the answer that
was provided by this witness. The testimony that was provided is not to be used for any purpose
in your deliberations.” RP at 317.
C. Testimony (Continued)
Findley testified that the only individuals with permission to enter the home were Sollom,
Tiffany Gaul (his girlfriend), and maybe his brother. He was not aware of his brother authorizing
anyone else to enter the home.
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Findley also testified that he owned the black bag and normally kept it in the closet. The
firearm was a gift from his brother and he was in the process of building it. He usually stores the
firearm in his nightstand. He has never stored the firearm in his black bag.
Gaul similarly testified that Findley usually keeps the firearm “in the nightstand on his side
of the bed.” RP at 363. She was not aware that he kept the firearm anywhere else, including the
black bag.2
D. Closing Arguments
During closing argument, the State argued that West was guilty of residential burglary
because he entered and remained unlawfully, and intended to commit theft of Findley’s partially
assembled firearm. More specifically, the State argued that it proved West’s intent to deprive
Findley of the firearm based on his actions in moving the firearm from the nightstand and
“slipping” it into the black bag. RP at 419.
West did not dispute that he entered or remained unlawfully in the residence such that he
would be guilty of criminal trespass in the first degree. Instead, West argued that the State failed
to prove that he intended to commit a crime therein because the evidence established that he placed
the firearm in the bag for “safekeeping purposes.” RP at 423.
III. JUDGMENT AND SENTENCE
The jury found West guilty of residential burglary. At sentencing, West asked the court to
impose an exceptional sentence below the standard range under RCW 9.94A.535(1)(e). Despite
being found competent, West argued that his capacity to appreciate the wrongfulness of his
conduct, or to conform his conduct to the requirements of the law, was significantly impaired
2
George testified that he might have left the firearm on the bed after examining it during his
investigation.
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because his current and previous competency evaluations clearly established a history of mental
illness. West’s counsel also expressed that she struggled to understand West’s decision making as
it related to the plea offers made to him by the State.
The trial court denied West’s request for an exceptional sentence. The court reasoned: “I
don’t believe that there is significant or sufficient enough record for establishing a departure
downward under [RCW 9.94A.535(1)(e)]. I don’t think that’s available to me.” RP at 456.
Accordingly, the court sentenced West to 63 months of confinement, which is the bottom
end of the standard range. West appeals his conviction and sentence.
ANALYSIS
I. MOTION FOR A MISTRIAL
West argues that the trial court abused its discretion in denying his motion for a mistrial
because Ayers’s errant testimony was a serious trial irregularity, not cumulative, and could not be
remedied by a curative instruction. We disagree.
A. Standard of Review
We review a trial court’s denial of a mistrial for abuse of discretion. State v. Emery, 174
Wn.2d 741, 765, 278 P.3d 653 (2012). “[W]e find abuse only ‘when no reasonable judge would
have reached the same conclusion.’” Id. (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d
1014 (1989)).
“A mistrial should be granted when the defendant has been so prejudiced that nothing short
of a new trial can insure that the defendant will be tried fairly.” State v. Gamble, 168 Wn.2d 161,
177, 225 P.3d 973 (2010). We will overturn a trial court’s decision denying a motion for a mistrial
“only when there is a substantial likelihood that the prejudice affected the verdict.” Id. “Thus,
when a trial irregularity occurs, the court must decide its prejudicial effect.” Id.
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B. The Hopson Factors
“We examine three factors—the Hopson factors—when determining whether an
irregularity warrants a mistrial: ‘(1) its seriousness; (2) whether it involved cumulative evidence;
and (3) whether the trial court properly instructed the jury to disregard it.’” State v. Garcia, 177
Wn. App. 769, 776, 313 P.3d 422 (2013) (quoting Emery, 174 Wn.2d at 765). These factors are
considered with deference to the trial court because the trial court is in the best position to discern
any prejudice. Garcia, 177 Wn. App. at 776-77.
“The first Hopson factor is the seriousness of the irregularity.” Id. at 777. “[A] violation
of a pretrial order is a serious irregularity . . . [The] intentional introduction of inadmissible
evidence relating to criminal history is more serious than an unintentional interjection of
inadmissible testimony.” Gamble, 168 Wn.2d at 178 (internal citation omitted). But ultimately,
“[t]he question is whether the irregularity was ‘serious enough to materially affect the outcome of
the trial.” Garcia, 177 Wn. App. at 777 (quoting Hopson, 113 Wn.2d at 286). In Hopson, the
Supreme Court held that the trial irregularity at issue was not serious enough to materially affect
the outcome of the trial because the challenged testimony revealed “no information concerning the
nature or number of prior convictions” and because “the jury had overwhelming evidence favoring
conviction.” 113 Wn.2d at 286.
“The second Hopson factor is whether the trial irregularity involved cumulative evidence.
If the evidence was cumulative, a mistrial may not be necessary.” Garcia, 177 Wn. App. at 781.
“The third Hopson factor is whether the trial court properly instructed the jury to disregard
the irregularity.” Id. “Our Supreme Court has restated this factor as ‘whether the irregularity
could be cured by an instruction.’” Id. (internal quotation marks omitted) (quoting State v. Perez-
Valdez, 172 Wn.2d 808, 818, 265 P.3d 853 (2011)). As a general rule, “[w]e presume that juries
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follow the instructions and consider only evidence that is properly before them.” Perez-Valdez,
172 Wn.2d at 818-19.
C. The Trial Court Did Not Abuse Its Discretion
Here, the first Hopson factor weighs against a mistrial because Ayers’s testimony—while
a serious trial irregularity because it introduced highly prejudicial character evidence and involved
the violation of a pretrial order—was not serious enough to materially affect the outcome of the
trial. Ayers only testified that “After [West] did disclose, I asked him if he was supposed to be in
possession or obtain a firearm and he said no.” RP at 308. Like Hopson, and contrary to West’s
contention otherwise, this statement revealed no information concerning the nature or number of
his prior convictions.3 113 Wn.2d at 284-86. Additionally, like Hopson, the jury had
overwhelming evidence of guilt. Id. at 286. West conceded to entering and remaining in the home
unlawfully. The evidence also showed a strong inference from which the jury could conclude
beyond a reasonable doubt that West intended to commit theft (the crime in the residence required
to amount to burglary) because he moved Findley’s firearm from the nightstand and into the black
bag.
West contends this evidence of intent is “weak,” but in doing so, he omits mentioning that
the bag also contained his belongings. Br. of Appellant at 19-20; Reply Br. of Appellant at 3. He
also omits mentioning that Findley and Gaul both testified that the firearm is ordinarily placed in
the nightstand and that Findley testified that he has never placed the firearm in the bag. Thus, this
evidence gave rise to the inference of intent—not the fact that West had a propensity for criminal
activity based on Ayers’s improper testimony. Accordingly, in the context of the entire record and
3
For this reason, West’s reliance on State v. Young, 129 Wn .App. 468, 119 P.3d 870 (2005), is
misplaced.
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with deference to the trial court’s finding, we conclude that Ayers’s statement is unlikely to have
swayed the jury.
The second Hopson factor weighs in favor of a mistrial. Ayers’s testimony was not
cumulative of other evidence in the record because no other witness testified to West not being
allowed to possess a firearm.
The third Hopson factor weighs against a mistrial. Contrary to West’s contention, the error
was remedied when the trial court specifically instructed the jury to disregard Ayers’s last answer
and also instructed that such testimony is not to be used for any purpose in deliberations. The
challenged portion of Ayers’s testimony was not discussed in front of the jury, and the court
“minimized its impact by moving the trial along.” Hopson, 113 Wn.2d at 287. “We presume that
juries follow the instructions and consider only evidence that is properly before them.” Perez-
Valdez, 172 Wn.2d at 818-19.
Because the Hopson factors weigh against a mistrial, we conclude that the trial court did
not abuse its discretion in denying West’s motion for a mistrial. Accordingly, we affirm West’s
conviction for residential burglary.
II. EXCEPTIONAL SENTENCE
West argues that the trial court abused its discretion because “it failed to recognize it could
depart from the standard range based on [his] mental [health] condition.” Br. of Appellant at 23.
We disagree.
A. Legal Principles
“Under the Sentencing Reform Act of 1981, a trial court must impose a sentence within
the standard range unless it finds substantial and compelling reasons to justify a departure.” State
v. Smith, 82 Wn. App. 153, 160-61, 916 P.2d 960 (1996). The trial court “may impose an
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exceptional sentence below the standard range if it finds that mitigating circumstances are
established by a preponderance of the evidence.” RCW 9.94A.535(1). It is a mitigating
circumstance if a “defendant’s capacity to appreciate the wrongfulness of his or her conduct, or to
conform his or her conduct to the requirements of the law, was significantly impaired.” RCW
9.94A.535(1)(e).
When a defendant requests an exceptional sentence, our “review is limited to circumstances
where the court has refused to exercise discretion at all or has relied on an impermissible basis for
refusing to impose an exceptional sentence below the standard range.” State v. Garcia-Martinez,
88 Wn. App. 322, 330, 944 P.2d 1104 (1997). “A court refuses to exercise its discretion if it
refuses categorically to impose an exceptional sentence below the standard range under any
circumstances.” Id. But a court that considered the facts of a case and found no basis for an
exceptional sentence has exercised its discretion, and the defendant may not appeal that ruling. Id.
B. The Trial Court Did Not Abuse Its Discretion
Here, West mischaracterizes the record by contending that “the court erroneously believed
it could not issue a downward departure based on [his] psychosis and schizoaffective disorder.”
Br. of Appellant at 28. The record demonstrates that the court was aware that it had the ability to
depart from the standard range based on West’s history of mental illness. However, after
considering West’s arguments and the competency evaluations, the court concluded that there was
not a sufficient enough record for an exceptional downward sentence under RCW 9.94A.535(1)(e).
Thus, the court exercised its discretion by considering the facts and concluding that no basis for
an exceptional sentence existed.
West does not show that the trial court abused its discretion when it declined to impose the
exceptional sentence. Accordingly, we affirm West’s standard range sentence.
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CONCLUSION
We affirm West’s conviction and sentence for residential burglary.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, J.
We concur:
Lee, J.
Cruser, A.C.J.
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