State Of Washington v. Say Sulin Keodara , 191 Wash. App. 305 ( 2015 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 70518-1-1 ^
Respondent,
DIVISION ONE
v.
SAY SULIN KEODARA, UNPUBLISHED OPINION
Appellant FILED: November 2. 2015 ^
Spearman, C.J. — Seventeen-year-old Say Sulin Keodara was involved in
a fatal shooting at a bus stop in 2011. He was apprehended for an unrelated
incident and the police seized his cell phone. The State obtained a warrant to
search the phone based on an officer's generalized statements about gang
members commonly using their phones to take and store photos of illegal
activity. Text messages and photos from the phone were submitted at trial.
Keodara was convicted and sentenced to a standard range sentence of 831
months, based on the statutory presumptive minimum term for all charges. He
appeals, arguing that the evidence from his phone should have been suppressed
because the search warrant violated the Fourth Amendment to the United States
Constitution and art. I, §7 of the Washington State Constitution. He also appeals
his sentence, arguing that pursuant to Miller v. Alabama, U.S. , 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012) itviolates the Eighth Amendment to the United
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States Constitution. He further argues that his counsel was ineffective for failing
to assert this claim during his sentencing hearing.
We hold that although the search of Keodara's phone violated the federal
constitution, the failure to suppress the evidence obtained thereby was harmless.
We also hold that the sentence imposed below violated the constitutional
mandate of Miller because the court failed to take into account Keodara's youth
and other age-related factors. Accordingly, we affirm Keodara's conviction but
remand for a new sentencing hearing.1
FACTS
On September 12, 2011, a fatal shooting occurred at a bus stop on
Rainier Avenue. Four people were inside the bus shelter located at the southwest
corner of Rainier Avenue South and South McClellan Street. A vehicle pulled up
and some Asian males, appearing to be in their teens or early twenties, asked
the group ifthey were looking for any "soft." Verbatim Report of Proceedings
(VRP) (May 8, 2013) at 135-36. "Soft" was known as a street term for crack
cocaine. One of the persons inside the shelter, Victor Lee Parker, approached
the vehicle and may have made a purchase. Parker then returned to the bus stop
and the vehicle drove south on Rainier and then turned.
Later, three of the men from the vehicle approached the bus stop from the
north on foot. One of them had a gun and demanded money from the group. The
gunman fired on the group after one person tried to run. All four people were hit.
1 In light of our resolution of this case, we do not address Keodara's claim of ineffective
assistance of counsel.
No. 70518-1-1/3
Parker had been shot once and was lying on the ground when the shooter
walked up to him and shot him in the head. Surveillance cameras from a nearby
store showed images of a similar vehicle and of a man in a blue sleeveless
jersey with writing on it.
The State arrested Keodara for an unrelated incident about five weeks
after the shooting. On October 20, 2011, Renton police officers apprehended him
in a silver, four-door Mitsubishi Galant. The car was impounded and the police
obtained a warrant to search the car on October 21, 2011. In the car, the police
found mushrooms in a bag belonging to the driver, other drug packaging
paraphernalia, and a backpack containing a cell phone.
The police obtained a second warrant to search the cell phone. This
warrant authorized search and seizure of the following:
Stored phone contact numbers, all call history logs, all text
messages, all picture messages, chat logs, voicemail messages,
photographs, and information contained in any saved address
databases or SIM cards within the cell phone, pictures, videos, a
forensic image of the storage media, all documents, chat and
internet activity and electronic data that identifies the owner or
users of the cell phone.
Any and all other evidence suggesting the crimes listed above
[Assault in the Fourth Degree, Unlawful Possession of Firearms,
Possession with Intent to Deliver or Sell Narcotics].
Clerk's Papers (CP) at 172.
The Affidavit in support of the warrant stated:
I am the current Gang Information Officer for the Renton Police
Department and a member of the South King County Violent Gang
Initiative Task Force. I have been the Gang Information Officer
since 2008 and a member of the Task Force since August of 2011.
Prior to being employed by the Renton Police Department I was
employed by the Department of Defense as a Detective where I
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investigated gangs. I have attended and instructed gang training
since 2002 for [a] total of over 500 hours. I have traveled around
the Country attending gang conferences where I learn the current
trends of gang members that are widely used. I am currently on the
Board of Directors for the International Latino Gang Investigators
Association. I have held this position since 2006 and prior to this
position I was the regional representative for the Pacific Northwest.
I have interviewed over 400 gang members and have identified
over 100 gang members residing in the City of Renton, over the last
5 years.
It is this Officer's belief that there is significant evidence contained
within the cell phone seized. Based off of my training and
experience I know it to be common for gang members to take
pictures of themselves where they pose with firearms. Gang
members also take pictures of themselves prior to, and after they
have committed gang related crimes. Additionally, it appears likely
there is evidence of firearms contained within said electronic
devices. I believe there is evidence of gang affiliation contained
within their electronic devices, as this shooting was gang involved.
Additionally, criminals often text each other or their buyers
photographs of the drugs intended to be sold or recently
purchased. Gang members will often take pictures of themselves or
fellow gang members with their cell phones which show them using
drugs.
CPat175.
Keodara was charged several months later for the Rainier Avenue
shooting after being identified from the surveillance video images. One of the
victims, Sharon McMillon, described the gunman and later testified that the car in
the video appeared to be the same one that stopped at the shelter, and that the
person in the blue basketball jersey appeared to be the shooter. Keodara was
also identified in the video by Lacana Long, who had dated Keodara in 2011.
Nathan Smallbeck told police that Keodara called him after the shooting
and told him that he had "just shot at a bus station." VRP (May 13, 2013) at 34-
35. He provided a statement to police about a call from Keodara around 3:18
No. 70518-1-1/5
a.m. and that he called Keodara later around 11:00 a.m. Id. at 36. The State
presented Keodara's telephone records showing call records and texts from the
day of the shooting. The State also obtained location data for Keodara's phone
that showed it was in the area near the time of the shooting.
At trial, the State presented images from the phone that showed Keodara
wearing clothing similar to that worn by the shooter, as well as text messages
sent between him and Long. Keodara argued that the police lacked probable
cause to search his phone and moved to suppress all evidence seized under the
warrant. The trial court denied the motion without holding an evidentiary hearing.
Keodara was charged with and convicted of first degree murder and three
counts of first degree assault, each with a separate firearm enhancement, and
unlawful possession of a firearm in the first degree. The standard ranges for first
degree murder and first degree assault were 312-416 months and 93-123
months, respectively, plus a deadly weapon enhancement of 60 months was
added to each count. By statute, the terms for each count are required to be
served consecutively and no good time is allowed on the deadly weapon
enhancements. See RCW 9.94A.589(1)(b) and 9.94A.533(3)(e)). Defense
counsel joined in the State's request that the trial court impose the presumptive
minimum sentence for each count. The court did so, resulting in imposition of a
total term of 831 months (69.25 years).
No. 70518-1-1/6
DISCUSSION
Search Warrant
Keodara argues that the warrant violated the particularity requirements of
the Fourth Amendment of the United States Constitution and the protections of
Article I, Section 7 of the Washington Constitution. According to him, the warrant
was invalid because there was no specific nexus between the events alleged to
have occurred and the items authorized to be searched. The State argues that
the warrant was sufficiently particular because it specified the individual crimes
for which evidence was being sought. The State also contends it would be
unreasonable to impose additional limits on the scope of the search, because
information related to firearms or drugs could be found any place on the phone
and pertain to any time period.
We review the issuance of a search warrant under an abuse of discretion
standard. State v. Maddox. 152 Wash. 2d 499, 509, 98 P.3d 1199 (2004). We give
great deference to the magistrate or issuing judge's decision. State v. Cole, 128
Wash. 2d 262, 286, 906 P.2d 925 (1995). We review de novo, however, the trial
court's probable cause and particularity determinations on a motion to suppress.
State v. Hiqqs. 177 Wash. App. 414, 426, 311 P.3d 1266 (2013) review denied, 179
Wash. 2d 1024, 320 P.3d 719 (2014)).
A warrant is overbroad if it fails to describe with particularity items for
which probable cause exists to search. State v. Maddox, 116 Wash. App. 796, 805,
67 P.3d 1135 (2003)). While the degree of particularity required depends on the
nature of the materials sought and the facts of each case, we evaluate search
No. 70518-1-1/7
warrants "in a common sense, practical manner, rather than in a hypertechnical
sense." State v. Perrone. 119 Wash. 2d 538, 549, 834 P.2d 611 (1992) (citing
United States v. Turner, 770 F.2d 1508, 1510 (9th Cir. 1985)).
"Conformance with the particularity requirement eliminates the danger of
unlimited discretion in the executing officer's determination of what to seize."
Perrone, 119 Wash. 2d at 549 (citing United States v. Blakenev, 942 F.2d 1001,
1026 (6th Cir. 1991)). The underlying measure of adequacy in a description is
whether, given the specificity of the warrant, a violation of personal rights is likely.
State v. Reep, 161 Wash. 2d 808, 814, 167 P.3d 1156 (2007). The fact that a
warrant lists generic classifications, however, does not necessarily result in an
impermissibly broad warrant. State v. Stenson. 132 Wash. 2d 668, 692, 940 P.2d
1239 (1997). But blanket inferences and generalities cannot substitute for the
required showing of "reasonably specific 'underlying circumstances' that
establish evidence of illegal activity will likely be found in the place to be
searched in any particular case." State v. Thein, 138 Wash. 2d 133, 147-48, 977
P.2d 582 (1999).
Keodara asks this court to consider the special nature of cell phones
because of the amount of personal and private information that they contain. He
cites a line of federal cases, including Rilev v. California. 134 S. Ct. 2473, 189
LEd.2d 430 (2014), revs'd and remanded. People v. Rilev, 2015 WL 721254,
Cal. App. Feb. 19, 2015)), and United States v. Galpin. 720 F.3d 436, 446 (2nd
Cir. 2013), to support his argument that the vast potential for privacy violations
requires increased sensitivity to the particularity requirement. In Riley, the United
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States Supreme Court held that a warrant was required to search an individual's
cell phone because of its potential to contain extensive personal information
about "'the privacies of life.'" 134 S. Ct. at 2495 (quoting, Boyd v. United States,
116 U.S. 616, 625, 6 S. Ct. 524, 29 L. Ed. 746 (1886). Galpin involved the search
of a personal computer, digital cameras, and digital storage devices for child
pornography. The Galpin court held that the particularity requirement was of even
greater importance, because advances in technology have "rendered the
computer hard drive akin to a residence in terms of the scope and quantity of
private information it may contain." 720 F.3d at 446.
In general, Washington courts have recognized that the search of
computers or other electronic storage devices gives rise to heightened
particularity concerns. A properly issued warrant "distinguishes those items the
State has probable cause to seize from those it does not," particularly for a
search of computers or digital storage devices. State v. Askham, 120 Wash. App.
872, 879, 86 P.3d 1194 (2004). In Askham, the court held that the warrant was
sufficiently particular because while it purported to seize a broad range of
equipment, drives, disks, central processing units, and memory storage devices,
it also specified which files and applications were to be searched. Jd. It listed files
related to the owner's use of specific websites, and files relating to manipulations
of digital images and authorized the seizure of software related to manipulation of
images, the defendant's handwriting, fingerprints, and postage stamps, jd. The
warrant's description left no doubt as to which items were to be seized and was
"not a license to rummage for any evidence of any crime." jd. at 880.
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No. 70518-1-1/9
On the other hand, the warrant in State v. Griffith, 129 Wash. App. 482, 488-
9, 120 P.3d 610 (2005), listed cameras, unprocessed film, computer processing
units and electronic storage media, documents pertaining to internet accounts,
videotapes, etc., as items to be searched. The supporting affidavit stated only
that Griffith used a digital camera to take pictures of the victim and that he kept
pictures on a computer; it did not contain evidence suggesting that Griffith
uploaded pictures to the internet or that he used film or videotape, jd. The
warrant was therefore overbroad because it permitted a search of video tapes
and internet documents, neither of which had any connection to the alleged
offenses.
Keodara argues that general statements about the ways dealers keep
their drugs and their sales records are not enough to conclude that his phone
contained evidence of illegal activity. In Thein, the affidavits in support of
probable cause contained generalized statements of beliefs about the common
habits of drug dealers. 138 Wash. 2d at 138. The Supreme Court held that the
search warrant for Thein's residence was overbroad, because the record showed
no incriminating evidence linking drug activity to his home. Id. at 150. The Thein
court held that the existence of probable cause is to be evaluated on a case-by-
case basis and "'the facts stated, the inferences to be drawn, and the specificity
required must fall within the ambit of reasonableness.'" Id. at 149 (quoting State
v. Helmka. 86 Wash. 2d 91, 93, 542 P.2d 115 (1975)).
The Thein affidavit read as follows:
Based on my experience and training, as well as the corporate
knowledge and experience of other fellow law enforcement
No. 70518-1-1/10
officers, I am aware that it is generally a common practice for drug
traffickers to store at least a portion of their drug inventory and
drug related paraphernalia in their common residences. It is
generally a common practice for drug traffickers to maintain in their
residences records relating to drug trafficking activities, including
records maintained on personal computers. .. . Moreover, it is
generally a common practice for traffickers to conceal at their
residences large sums of money, either the proceeds of drug sales
or to utilized [sic] to purchase controlled substances. . . . Evidence
of such financial transactions and records related to incoming
expenditures of money and wealth in connection with drug
trafficking would also typically be maintained in residences.
I know from previous training and experiences that it is common
practice for drug traffickers to maintain firearms, other weapons
and ammunition in their residences for the purpose of protecting
their drug inventory and drug proceeds[.] I am aware from my own
experience and training that it is common practice for [sic] from law
enforcement, but more commonly, from other drug traffickers who
may attempt to "rip them off." Firearms and ammunition have been
recovered in the majority of residence searches in the drug
investigations in which I have been involved.
Thein at 138-39.
The affidavit for the warrant for Keodara's phone contained very similar
blanket statements about what certain groups of offenders tend to do and what
information they tend to store in particular places. Without evidence linking
Keodara's use of his phone to any illicit activity, we find the affidavit to be
insufficient under the Fourth Amendment. Under Thein. more is required for the
necessary nexus than the mere possibility of finding records of criminal activity.
The State tries to distinguish this affidavit and warrant from Thein by citing
officer Barfield's "wealth of specific experience and training." Brief of Respondent
at 24. The Thein court, however, made no reference to the quality or quantity of
the affiant's experience or whether such would suffice for an evidentiary nexus
10
No. 70518-1-1/11
between the evidence and the place to be searched. The blanket statements and
broad generalizations are not particular to Keodara or his commission of any
offense.
Furthermore, the warrant's language also allowed Keodara's phone to be
searched for items that had no association with any criminal activity and for
which there was no probable cause whatsoever. There was no limit on the topics
of information for which the police could search. Nor did the warrant limit the
search to information generated close in time to incidents for which the police
had probable cause. The State argued that the warrant was sufficiently limited to
search only for information related to specific crimes, such as evidence of
possession with intent to sell drugs or possession of firearms or assault in the 4th
degree. However, this is not sufficient under State v. Hiqqins. 136 Wash. App. 87,
92, 147 P.3d 649 (2006). In that case, we rejected the general description of
"certain evidence of a crime, to-wit: 'Assault 2nd DV RCW 9A.36.021." The court
found that a general reference to evidence of domestic violence was not
sufficiently particular, because the statute contained six different ways to commit
the crime. jg\ A warrant to search for evidence of any such violation would allow
for seizure of items for which the State had no probable cause, jd. at 93.
Here, no evidence was seized that would have linked Keodara's phone to
the crimes listed in the warrant-unlawful possession of firearms, possession with
intent to deliver or sell narcotics, or assault. Nothing in the record suggests that
anyone saw Keodara use the phone to make calls or take photos. In addition, the
phone was found in a backpack, separate from the drug paraphernalia or the
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No. 70518-1-1/12
pistol. There was no indication that evidence of firearms or drugs were found with
the phone. We conclude that the warrant was overbroad and failed to satisfy the
Fourth Amendment's particularity requirement.2
Keodara argues that because the warrant is invalid, all evidence from the
phone should have been suppressed. Admission of evidence obtained in
violation of either the federal or state constitution is an error of constitutional
magnitude. State v. Contreras. 92 Wash. App. 307, 318, 966 P.2d 915 (1998)
(citing State v. Mierz. 72 Wash. App. 783, 866 P.2d 65 (1994). An error of
constitutional magnitude can be harmless "if we are convinced beyond a
reasonable doubt that any reasonable jury would have reached the same result
without the error." State v. Jones, 168 Wash. 2d 713, 724, 230 P.3d 576 (2010)
(quoting State v. Smith, 148 Wash. 2d 122, 139. 59 P.3d 74 (2002)). Constitutional
error is presumed to be prejudicial, and the State bears the burden of proving
that the error was harmless. State v. Fraser, 170 Wash. App. 13, 23-24, 282 P.3d
152 (2012) (review denied, 176 Wash. 2d 1022, 297 P.3d 708 (2013)). The
appellate court looks only at the untainted evidence to determine if the totality is
so overwhelming that it necessarily leads to a finding of guilt, jd. The State must
show beyond a reasonable doubt that the error complained of did not contribute
to the verdict obtained. Id.
2 Keodara argues that the warrant is also invalid under the article I, section 7 of the
Washington State Constitution. Because we find the warrant fails the federal constitutional
requirements, we need not address the state constitutional issue.
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No. 70518-1-1/13
The text messages and photos, while relevant, demonstrated only that
Keodara knew Long, to which she testified, and that he commonly wore Hornets'
jerseys. The fact that the shooter wore a Hornets' jersey was only one of many
pieces of evidence that supported the State's case. Cf., State v. Wicker, 66 Wn.
App. 409, 414, 832 P.2d 127 (1992) (error not harmless where fingerprints were
the sole basis of the State's case and the jury received two opinions, one
admitted in error). Here, the untainted evidence of Keodara's guilt was strong.
Cellular phone tower records placed him near the location of the shooting, two
eyewitnesses identified him, and another witness testified that Keodara
contacted him and told him about the shooting. We find that the trial court's
denial of Keodara's motion to suppress does not warrant reversal and,
accordingly, we affirm his convictions.3
Sentence
Relying primarily on Miller v. Alabama.132 S. Ct. 2455, Keodara argues
that the sentence he received violates the Eighth Amendment. He points out that
under Washington's sentencing scheme the crimes of which he was convicted,
first degree murder and three counts offirst degree assault, are deemed "serious
3Keodara also argues that his alleged gang affiliation and related activity also provide a
basis to challenge the warrant's validity. He argues that participation in a gang is protected First
Amendment activity that gives rise to a higher standard of protection from unreasonable search
and seizure. The degree of particularity required by a search warrant is greater if itgrants
authority to seize materials arguably protected by the First Amendment. Perrone, 119 Wn.2d. at
547-48. Perrone held that items seized for their use in furthering criminal activity, such as illicit
drug trade or illicit firearms, are not protected. \& at 548. Here, because the warrant is invalid
under the Fourth Amendment's particularity requirement, we need not address whether a search
for information related to gang activity would require the higher level of particularity underthe
First Amendment.
13
No. 70518-1-1/14
violent offenses." See RCW 9.94A.030(45). Under RCW 9.94A.589(1)(b), the
terms imposed for each such crime shall be served consecutively unless the
court finds substantial and compelling reasons to depart from the presumptive
standard range sentence. In Keodara's case, the application of the statute
resulted in a sentence in excess of 69 years, which he contends is the equivalent
of a mandatory life sentence without possibility of parole. Keodara argues that
because he was a juvenile when he committed his crimes, Miller forbids the
imposition of such a sentence unless the sentencing court considers his youth
and individual circumstances. It is undisputed in this case that the court was not
asked to and did not do so. Thus, Keodara contends the sentence is
unconstitutional and that he is entitled to a new sentencing hearing.
The State argues that Keodara's reliance on Miller is misplaced because
the length of his sentence is not attributable to a conviction for a single offense,
but instead the cumulative result of consecutive sentences for separate crimes.
The State also argues that even if Miller applies, the sentence is lawful because
under RCW 9.94A.730(1) Keodara has a realistic opportunity for release after
serving 20 years.
Miller is the latest of three United States Supreme Court cases that
address the Eighth Amendment's prohibition against cruel and unusual
punishment in the context of sentencing persons for crimes committed as
juveniles. In Roper v. Simmons. 543 U.S. 551, 125 S. Ct. 1183, 161 LEd.2d 1
(2005), the court held that the Eighth Amendment prohibited the imposition of the
death penalty for defendants who committed their crimes before the age of 18. In
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No. 70518-1-1/15
Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 LEd.2d. 825 (2010), the
court held that the Eighth Amendment forbade the imposition of a life sentence
on a juvenile offender who did not commit a homicide if there was no realistic
opportunity for the offender to obtain release before the end of that term. And in
Miller, the court concluded that mandatory sentencing schemes that require the
imposition of life without parole sentences on juvenile offenders convicted of
homicide are constitutionally impermissible unless the sentencer takes "into
account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison." Miller, 132 S. Ct. at 2469. The
fundamental proposition underlying each of these decisions is "that children are
constitutionally different from adults for purposes of sentencing." jd. at 2464.
Thus, mandatory sentencing schemes that impose the same sentence on adults
and juveniles without taking this critical distinction into account violate the
"principle of proportionality, and so the Eighth Amendment's ban on cruel and
unusual punishments." jd. at 2475.
We recently rejected the State's argument that Miller should apply only to
sentences of life without parole. In State v. Ronquillo, No. 71723-5-1 (Wash. Ct.
App. Oct. 26, 2015), we noted that Miller explicitly held that "imposition of a
State's most severe penalties on juvenile offenders cannot proceed as though
they were not children." jd. slip opinion at 8 (quoting Miller, 132 S. Ct. at 2466).
Accordingly, we found irrelevant the label given to the type of sentence, i.e., a life
sentence or a term of years. The critical questions were whether a sentence to a
term of years was the equivalent of a life sentence, and if so, whether it can be
15
No. 70518-1-1/16
mandatorily imposed on adults and juveniles alike regardless of the differences
that we now know exist between them in terms of their culpability and capacity
for rehabilitation. \± slip opinion at 9. We determined that the term of years
sentence in that case (52.5 years) was "a de facto life sentence" and concluded
that before imposing it, Miller required the court to "'take into account how
children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.'" jd., (quoting Miller, 132 S. Ct. at 2469).
Keodara, like Ronquillo, was sentenced to a term of years that is
equivalent to a life sentence without possibility of parole. Like Ronquillo, in
imposing its sentence, the court did not take into account that Keodara was a
juvenile at the time he committed the crimes or consider other age related factors
that weigh on culpability or his capacity for rehabilitation. We conclude that the
sentence imposed in this case contravenes Miller's constitutional mandate.
Accordingly, we vacate his sentence and remand for a new sentencing hearing.4
Statement of Additional Grounds
In his statement of additional grounds, Keodara objects to the trial court's
evidentiary rulings regarding phone records and testimony about him possessing
a weapon. We review a trial court's evidentiary rulings under an abuse of
discretion standard. State v. Griffin, 173 Wash. 2d 467, 473, 268 P.3d 924 (2012).
4 Ronquillo also rejected the State's argument that even if the sentence was
unconstitutional when imposed, the issue is resolved by the enactment of RCW 9.94A.730(1)
which provides juvenile offenders such as Keodara to petition for release after serving a minimum
of 20 years. We held that the statute "'did not affect the mandatory nature of the sentence or cure
the absence of a process of individualized sentencing considerations mandated under Miller.'"
Ronquillo. slip opinion at 14 (quoting State v. Raqland. 836 N.W.2d 107, 119 (Iowa 2013)). We
likewise reject the argument here.
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No. 70518-1-1/17
The requirement of authentication or identification as a condition precedent to
admissibility is satisfied by testimony of a witness with knowledge that the
evidence is what it is claimed to be. ER 901(a).
Keodara argues that cell phone records were not properly authenticated
because the name on the records was "SYEO" and the texts and photos taken
from his phone showed a different carrier. In this case Joseph Trawicki, records
custodian for Sprint Nextel, testified about his familiarity with Sprint's records and
the process by which call detail information is generated and recorded on the
network for every subscriber. Trawicki testified that the phone records offered by
the State included subscriber information, call detail records, and cell tower
listings from 9/1/11 through 9/30/11, for telephone number 206-501-8354,
registered to Syeo Keodara at 17028 105th Avenue South, Renton, Washington.
Trawicki's testimony was therefore sufficient to authenticate the records and any
question regarding whether the subscriber was Keodara was properly before the
jury.
Keodara also argues that the phone records should not have been
admitted because the State claimed that these records were from the wrong
phone. In opening argument, the State maintained that the phone and the
records were from the same number. After Trawicki's testimony and the
testimony from Barfield about the phone, it was clear that the phone and the
records corresponded to different numbers. The State recognized this in its
closing argument. Keodara objects to the prosecutor's misstatement of the
evidence, not its authentication. The jury, however, was instructed to remember
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No. 70518-1-1/18
that the lawyers' statements were not evidence, and that it "must disregard any
remark, statement, or argument that is not supported by the evidence or the law.
. . ." CP at 262. The jury is presumed to have followed that instruction. State v.
Warren, 165 Wash. 2d 17, 29, 195 P.3d 940 (2008). Keodara has not shown that he
was prejudiced by the prosecutor's misstatement and subsequent correction
about the phone records and evidence.
Keodara also argues that it was error for the trial court to admit
Smallbeck's testimony that he knew that Keodara possessed a nine millimeter (9
mm) weapon, which was the gun used in the shooting. Keodara argues that such
evidence should have been excluded under ER 404(b). ER 404(b) prohibits the
admission of evidence of other crimes, wrongs, or acts to show character or to
show action in conformity therewith. The test for admitting evidence under ER
404(b) consists of the trial court (1) finding by a preponderance of evidence that
the misconduct occurred, (2) identifying the purpose for which the evidence is
sought to be introduced, (3) determining whether the evidence is relevant to
prove an element of the crime charged, and (4) weighing the probative value
against the prejudicial effect. State v. Hartzell, 156 Wash. App. 918, 930, 237 P.3d
928 (2010) (citing State v. Lough, 125 Wash. 2d 847, 853. 889 P.2d 487 (1995)).
The trial court engaged in the proper inquiry on the record; first finding that
from the testimony and reports that Keodara was found with a 9mm at the time
he was arrest. Second, the court found the evidence was offered to show that
Keodara had access to such a weapon and that it was relevant to whether he
committed the crimes charged. Finally, the trial court balanced the probative
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No. 70518-1-1/19
value and the prejudicial effect when it stated on record that it would only admit
evidence of Keodara having the 9mm prior to the shooting, not evidence of other
guns or being convicted for possession of the 9mm at the time of his arrest.
Keodara's ER 404(b) argument fails.
Finally, Keodara argues that the prosecutor committed misconduct by
proffering Smallbeck's testimony about the time and occurrence of calls and texts
back and forth with Keodara. He also argues that he received ineffective
assistance of counsel because his attorney failed to object to such testimony. He
claims that the records (the same records he claims were admitted in error
because they had not been authenticated) clearly establish that no such calls
occurred. The jury is entitled to weigh the evidence and determine the credibility
of witnesses; we do not review such determinations on appeal. State v.
Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990). Because the testimony was
properly before the jury, we do not find that the prosecutor committed misconduct
or that Keodara received ineffective assistance of counsel.
We affirm Keodara's conviction, but vacate his sentence and remand for
resentencing in light of Miller and Ronquillo.
WE CONCUR:
j/i/ww^ C&
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