State Of Washington v. Anthony Cook ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 81397-8-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
ANTHONY QUINDELL COOK,
Appellant.
SMITH, J. — Following an incident with Anthony Cook’s former girlfriend,
Ariel Jenkins, a jury convicted Cook of (1) violation of a domestic violence
protection order, (2) two counts of bail jumping, and (3) felony harassment. Cook
appeals, assigning error to certain evidentiary rulings. Specifically, Cook
contends that the trial court abused its discretion when it admitted (1) prior
instances of alleged threats against Jenkins, (2) an information charging Cook,
as a juvenile, with harassment and violation of a no-contact order, and (3) text
messages that Cook allegedly sent to Jenkins.
We conclude that the State proffered sufficient proof for the court to find
that the two prior incidents likely occurred and that their probative value, proving
the reasonableness of Jenkins’s fear and Cook’s identity, was not substantially
outweighed by the risk of prejudice. Moreover, the exhibit containing Cook’s
juvenile charge for protection order violation was relevant and not overly
prejudicial. Finally, the State presented sufficient evidence to authenticate the
text message evidence. Thus, we conclude that the trial court did not abuse its
Citations and pin cites are based on the Westlaw online version of the cited material.
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discretion in admitting any of the challenged evidence, and we affirm.
FACTS
Cook and Jenkins were previously in a dating relationship. The
relationship resulted in a son, B.B., who was born in 2014 after the relationship
had ended. Jenkins received sole custody of B.B. Jenkins later testified at trial
that she and Cook had difficulty coparenting and that shortly after B.B.’s birth,
Cook would threaten her, telling her that she would never see her children again
or that he was following her.
In 2017, Child Protective Services (CPS) began an investigation into
Jenkins’s husband and the safety of B.B. Accordingly, on May 31, 2017, CPS
placed B.B. in Cook’s custody. Jenkins later testified that during this time, Cook
prevented Jenkins from contacting B.B. She stated that Cook continuously
threatened her. One particular threat occurred on June 9, 2017, when Cook
threatened to harm Jenkins if she filed anything with the court or notified the
police of Cook’s threats. Another incident occurred on June 18, 2017, when
Cook threatened to take B.B. out of the state.
Around three weeks after Cook obtained custody of B.B., CPS ended its
investigation into Jenkins’s husband. CPS then placed B.B. back in Jenkins’s
custody. Jenkins later testified that, thereafter, Cook again threatened to take
B.B. with him out of the state, told her that she “would never see [B.B.] again,”
and said that he would kill her. Jenkins also testified that at some point, her
mother received a message from Cook that he knew Jenkins’s husband was
driving Jenkins’s truck, had taken pictures of the truck, and had been following
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the vehicle and Jenkins’s husband.
On June 21, 2017, Jenkins petitioned for a domestic violence protection
order against Cook,1 asserting that Cook had threatened her with violence. The
trial court granted the petition and ordered a temporary protection order (TPO).
On July 5, 2017, time constraints prevented the hearing on the protection
order. Therefore, the court reissued the TPO and rescheduled the hearing for
July 19.
But on July 17, 2017, Jenkins received threatening text messages from
two unknown phone numbers. Jenkins believed the messages were from Cook
because of the messages’ content and the style of the writing therein. One text
message read: “1st U take MY son from me even after I warned u of the
repercussions. Then you try to get a No Contact Order against me from him too!
Now I’m childish? . . . u fucc’d up.” In another message, Jenkins called the
sender Anthony, and the sender never corrected her. The messages also
indicated that the sender had been conducting surveillance on Jenkins and her
“trucc” and told Jenkins that “[t]he cops can’t do [anything] for u but take a report
when they find u dead after I’m done with u.”
Jenkins called 911 to report the threatening messages. When police
officers, including Officer Jocelyn Uria, responded to the call, Jenkins was upset.
Officer Uria later testified that Jenkins’s “hands were shaking so bad” that
Jenkins could not hold her phone still. Officer Uria therefore had to hold
1 Specifically, Jenkins sought an order for protection pursuant to
RCW 26.50.030, which provides that “[t]here shall exist an action known as a
petition for an order for protection in cases of domestic violence.”
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Jenkins’s phone to take pictures of the text messages. As a part of the
investigation, Jenkins provided a signed statement, declared under penalty of
perjury, which described the incidents leading up to the text messages. The
police thereafter arrested Cook for violation of the TPO.
The State later charged Cook with (1) count 1: one count of felony
harassment or, in the alternative, one count of felony cyberstalking and
(2) count 2: violation of a temporary protection order.
Prior to trial, the State moved to admit testimony describing Cook’s past
threats and conduct towards Jenkins. Cook objected under ER 404(b) and
ER 403. And the court set an ER 404(b) hearing for March 12, 2018, for which
Cook failed to appear. On June 13, 2018, Cook also failed to appear at a status
hearing. The State therefore amended the information to include two counts of
bail jumping.
On August 8, 2018, at the ER 404(b) hearing on the State’s motion, the
State argued that the evidence was admissible to show that Cook placed Jenkins
in reasonable fear that Cook would carry out his threats and to show identity. For
various reasons, Jenkins failed to appear at the ER 404(b) hearing. In the
absence of her testimony, the court directed the State to present its offer of proof.
To that end, the State offered four exhibits including a Thurston County Sheriff’s
Office report from 2013 regarding an incident between Jenkins and Cook, the
complaint and the judgment and sentence therefrom, a copy of Jenkins’s petition
for the TPO in July 2017, and Jenkins’s signed statement to the police that she
provided after she received the threatening text messages.
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The court accepted the State’s offer of proof with regard to two incidents.
Specifically, the court admitted evidence that (1) Cook previously used B.B. to
control Jenkins and made threats to harm Jenkins and to take B.B. to another
state and (2) Jenkins sought a protection order against Cook due to his threats of
surveillance, of harm towards Jenkins, and of taking B.B. to another state. The
latter incident was evidenced in Jenkins’s petition for a protection order and in
her written statement to the police. The court determined that those incidents
occurred and were relevant to prove the “reasonable fear” element of
harassment, as well as Cook’s identity.
Trial began on January 8, 2019. During trial, outside the presence of the
jury, Cook objected to the admission of the text messages that Jenkins received.
The State offered Jenkins’s testimony to authenticate the text messages. She
testified that an unknown number sent the messages but that she suspected the
messages were from Cook because they discussed only B.B., they mentioned a
protection order, and they contained the use of “cc” in the place of “ck” for certain
words, which she alleged is characteristic of Cook’s text messages. The court
overruled the objection and admitted the evidence, finding that the messages
were properly authenticated. Cook testified and denied that he sent the
messages.
The State also offered testimony from Officer Uria regarding Cook’s 2004
juvenile conviction for telephone harassment. To this end, the State offered
three exhibits pertaining to the prior conviction: exhibit 13 (the certified protection
order imposed against Cook for the victim, J.K.), exhibit 14 (the certified
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information for the conviction in exhibit 15, containing two charges, one for
violating the protection order from exhibit 13 and a second for telephone
harassment), and exhibit 15 (the certified judgment and sentence wherein Cook
pled guilty to telephone harassment and which ordered that Cook have no
contact with the J.K. family). Cook objected to exhibit 14 based on relevancy and
prejudice. In the alternative, he argued that the court should redact the charge
for violation of a protection order because he was never convicted thereof. The
court held that it could not redact the charge because the exhibit was a certified
copy and admitted the information as relevant and not overly prejudicial.
However, the court provided a limiting instruction to the jury:
Certain evidence has been admitted in this case for only a
limited purpose. Exhibit numbers 13, 14, and 15 were admitted into
evidence by the court for the limited purpose of whether or not the
state has proven that the defendant was previously convicted of the
crime of harassment against a person who was specifically named
in a no contact order or a harassment order. You may not consider
these exhibits for any other purpose. Any discussion of this
evidence during your deliberations must be consistent with this
limitation.
Following trial, the jury found Cook guilty as charged. Cook appeals.
ANALYSIS
Standard of Review
We review decisions to admit evidence for abuse of discretion. In re
Detention of H.N., 188 Wn. App. 744, 753, 355 P.3d 294 (2015). “‘Abuse of
discretion’ means ‘no reasonable judge would have ruled as the trial court
did.’” State v. Arredondo, 188 Wn.2d 244, 256, 394 P.3d 348 (2017) (quoting
State v. Mason, 160 Wn.2d 910, 934, 162 P.3d 396 (2007)). “Put another way,
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to reverse we must find the decision is ‘unreasonable or is based on untenable
reasons or grounds.’” Arredondo, 188 Wn.2d at 256 (internal quotation marks
omitted) (quoting Mason, 160 Wn.2d at 922).
Prior Bad Act Evidence
Cook contends that the trial court abused its discretion when it admitted
evidence of Cook’s prior bad acts. Specifically, Cook contests the admission of
(1) two prior conflicts between Jenkins and himself and (2) State’s exhibit 14,
which charged Cook with a protection order violation. For the reasons discussed
below, we conclude the trial court did not err with regard to either admission.
Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in
conformity therewith.” Such evidence “may, however, 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). But before
admitting ER 404(b) evidence under one of these exceptions, the trial court must
“(1) find by a preponderance of the evidence that the misconduct
occurred, (2) identify the [permissible] purpose for which the
evidence is sought to be introduced, (3) determine whether the
evidence is relevant to prove an element of the crime charged, and
(4) weigh the probative value against the prejudicial effect.”
Arredondo, 188 Wn.2d at 257 (alteration in original) (internal quotation marks
omitted) (quoting State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012)).
State v. Ragin2 is instructive. There, James Ragin’s acquaintance, William
Dahl, refused to post bail for Ragin, and Ragin responded by threatening to
2 94 Wn. App. 407, 972 P.2d 519 (1999).
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No. 81397-8-I/8
murder Dahl and his family. Ragin, 94 Wn. App. at 410. The State later charged
Ragin with felony harassment. Ragin, 94 Wn. App. at 410. Prior to trial, the
State sought to admit evidence that “Ragin told Dahl that he could build bombs,
had access to guns and ties to organized crime, and that he could level the City
Church and ‘waste’ the pastors.” Ragin, 94 Wn. App. at 409-10. Ragin also had
told Dahl that he “suffered from episodic rages” and that the local police knew
him well. Ragin, 94 Wn. App. at 409. Because the reasonableness of Dahl’s
fear was an element of the crime of felony harassment, the trial court admitted
Dahl’s testimony of each statement that Ragin made to him. Ragin, 94 Wn. App.
at 410. However, the court provided a limiting instruction to the jury on the
proper use of the evidence. Ragin, 94 Wn. App. at 410. On appeal, we held that
the trial court did not abuse its discretion in admitting Dahl’s extensive testimony
even though “everything Ragin told Dahl . . . was not necessary to prove Dahl’s
state of mind.” Ragin, 94 Wn. App. at 412.
Here, the trial court admitted two incidents between Cook and Jenkins.
First, the court admitted Jenkins’s allegations that in the summer of 2013, Cook
was controlling and that after B.B. was born, he threatened to take B.B. to
another state. Second, the court admitted Jenkins’s allegation that prior to
Jenkins seeking a protection order, Cook threatened to kill her if she reported his
threats and that Cook had asserted that he was maintaining surveillance on
Jenkins’s car.
The State offered the incidents to show the reasonableness of Jenkins’s
fear and to show Cook’s identity. As to Jenkins’s fear, like the defendant in Ragin,
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the State charged Cook with felony harassment. And RCW 9A.46.202(1)(b)
requires the State to prove beyond a reasonable doubt that Cook, “by words or
conduct,” placed Jenkins “in reasonable fear that the threat will be carried out.”
(Emphasis added.) To this end, the prior incidents provided context for Cook’s
threat and Jenkins’s fear thereof and provided the basis for the jury’s
determination that Jenkins’s fear was reasonable. Thus, the evidence had a high
probative value, i.e., evidence of an element of the charged crime. And, like
Ragin, while it might be the case that not all of the evidence admitted was
necessary to prove reasonableness, we cannot conclude that the trial court
abused its discretion when it admitted both incidents in addition to other evidence
presented by the State.
As to identity, Cook testified that he did not send the text messages. As a
consequence, because the prior incidents involved similar threats including
assertions of surveillance and contentions that Cook would take B.B. to another
state, the incidents were relevant to identity. See, e.g., State v. Fualaau, 155
Wn. App. 347, 357, 228 P.3d 771 (2010) (“Even where the common features of
the crimes are not individually unique, such that they ‘amount to a signature,’ the
‘appearance of several features in the cases to be compared . . . can create
sufficient inference that they are not coincidental,’” and justify “‘the trial court's
finding of relevancy.’” (quoting State v. Vy Thang, 145 Wn.2d 630, 644, 41 P.3d
1159 (2002))). Thus, the trial court did not err when it admitted evidence of the
two incidents.
Cook disagrees and asserts that the trial court should have conducted a
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hearing because it could not fairly decide whether the ER 404(b) evidence
actually occurred. But the State offered as proof four exhibits. With regard to the
2013 incident, the State offered a police report and Cook’s judgment and
sentence for domestic violence. With regard to the most recent incident, the
State offered Jenkins’s statement to the police and her petition for a protection
order. The offered exhibits sufficiently support the trial court’s determination that
more probably than not the incidents occurred. See State v. Asaeli, 150 Wn.
App. 543, 576-77, 208 P.3d 1136 (2009) (“‘Preponderance of the evidence
means that considering all the evidence, the proposition asserted must be more
probably true than not.’” (quoting State v. Ginn, 128 Wn. App. 872, 878, 117 P.3d
1155 (2005))). Thus, the trial court did not err in concluding that the State proved
that the incidents occurred by a preponderance of the evidence. Furthermore,
“the trial court is in the best position to determine whether it can fairly decide,
based upon the offer of proof, that a prior bad act or acts probably occurred.”
State v. Kilgore, 147 Wn.2d 288, 295, 53 P.3d 974 (2002). Accordingly, we find
no error in the trial court accepting the State’s offer of proof without a hearing.
Cook also contends that the trial court erred in finding that the probative
value of the incidents was not substantially outweighed by the risk of unfair
prejudice. Specifically, Cook contends that the State relied on Officer Uria’s
testimony that Jenkins was shaking and on Jenkins’s testimony that she was
afraid. He contends that the additional evidence of Jenkins’s fear therefore had
little probative value. However, as the State points out, it had to prove each
element, including the reasonableness of Jenkins’s fear, beyond a reasonable
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doubt. Thus, the trial court did not abuse its discretion in concluding that the
probative value was not substantially outweighed by the risk of prejudice.
The trial court also admitted exhibit 14, which is best understood in the
context of exhibit 13 and exhibit 15. Exhibit 13 was a temporary domestic
violence protection order granted in 2004 against Cook, protecting J.K.
Exhibit 14 was an information from 2004 showing that the State charged Cook
with telephone harassment and violation of J.K.’s protection order. And exhibit
15 was the judgment and sentence from the same incident wherein Cook pled
guilty to telephone harassment and was ordered not to contact J.K.’s family.
Here, in order to have convicted Cook of felony harassment, the State had
to prove beyond a reasonable doubt that Cook “ha[d] previously been convicted
. . . of any crime of harassment . . . of . . . any person specifically named in a no-
contact or no-harassment order.” RCW 9A.46.020(2)(b). Accordingly, like in
Ragin, exhibit 14 was relevant to a required element of the charged crime.
Specifically exhibit 14 provided evidence that Cook was convicted of harassing
J.K. in particular. This probative value was not substantially outweighed by the
risk of prejudice. Furthermore, we presume the jury did not consider exhibit 14
as propensity evidence. See Carnation Co. v. Hill, 115 Wn.2d 184, 187, 796
P.2d 416 (1990) (“A jury is presumed to follow the court's instructions and that
presumption will prevail until it is overcome by a showing otherwise.”). We
therefore conclude that the trial court did not abuse its discretion when it admitted
exhibit 14.
Cook admits that the telephone harassment charge was relevant to the
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State’s case for felony harassment but asserts that the certified information was
irrelevant because the State admitted the judgment and sentence. However, the
State had to prove that Cook harassed someone subject to a protection order.
Because the judgment and sentence referenced only J.K.’s family and the
protection order applied only to J.K., exhibit 14 provided the necessary
connection between the two court documents. Therefore, we do not agree that it
was irrelevant.
Cook also contends that the court should have redacted the charge for
violation of a protection order. The court held that because exhibit 14 was a
certified document, it was improper and unlawful to alter the document. In this
conclusion, the court was incorrect. See, e.g., State v. Melland, 9 Wn. App. 2d
786, 795-96, 452 P.3d 562 (2019) (noting no error in the court’s admission of a
redacted certified copy of a domestic violence no-contact order). However, the
trial court correctly concluded that the probative value of the information,
including the unredacted charge for the protection order violation, was not
substantially outweighed by the prejudicial effect, and the trial court provided a
limiting instruction. Thus, its error in this regard is immaterial.
Text Message Evidence
Finally, Cook contends that the State did not properly authenticate the text
message evidence presented at trial and that the court therefore erred in
admitting it. We disagree.
“The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
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that the matter in question is what its proponent claims.” ER 901(a). “Because
the proponent must make only a prima facie showing of authenticity for purposes
of establishing admissibility, ER 901 is met ‘if the proponent shows enough proof
for a reasonable fact finder to find in favor of authenticity.’” H.N., 188 Wn. App.
at 751 (quoting State v. Payne, 117 Wn. App. 99, 108, 69 P.3d 889 (2003)). In
determining the authenticity of evidence, “[a] trial court may, therefore, rely upon
such information as law opinions, hearsay, or the proffered evidence itself,” State
v. Williams, 136 Wn. App. 486, 500, 150 P.3d 111 (2007), and the evidence must
be “‘reliable, but need not be admissible.’” H.N., 188 Wn. App. at 751 (quoting
Williams, 136 Wn. App. at 500).
Here, Jenkins testified that she did not recognize the phone numbers that
sent the text messages, that she had changed her number between six and eight
months prior to receiving the messages, and that she had not personally
informed Cook of her new phone number. But Jenkins also testified in support of
a finding for authenticity. Specifically, while Jenkins did not provide Cook with
her new phone number, she contended that she provided her number on an
assignment sheet during a CPS meeting and that at the meeting, everyone
received a copy of the sheet. She also testified that Cook often used different
numbers when he contacted her and that he obtained the new numbers from an
application on his phone. More importantly, the content of the messages made
Jenkins believe that they came from Cook. In particular, the messages pertained
to B.B. only and mentioned a protection order. As to the protection order,
Jenkins’s only other protection order at the time was against her husband, who
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was incarcerated when she received the messages. Jenkins also testified that
Cook frequently replaces the letters “ck” with “cc” in text messages and the text
message evidence included similar changes. Based on all of Jenkins’s
testimony, a reasonable fact finder could find in favor of the text messages’
authenticity. Therefore, the trial court did not abuse its discretion.
Cook disagrees and attempts to distinguish State v. Young, 192 Wn. App.
850, 369 P.3d 2005 (2016). There, the court concluded that the text messages
were properly authenticated where the recipient of the text messages had
personal knowledge that the sender was Eugene Young and where the content
of the messages also supported that determination. Young, 192 Wn. App. at
856-57. Cook contends that unlike the recipient in Young, Jenkins had no
personal knowledge of who the sender was. In attempting to distinguish Young
on this basis, Cook urges us to adopt a rigid test for authentication. But “‘[t]he
proponent of the offered evidence need not rule out all possibilities inconsistent
with authenticity or conclusively prove that the evidence is what it purports to
be.’” H.N., 188 Wn. App. at 751 (capitalization and internal quotation marks
omitted) (quoting State v. Andrews, 172 Wn. App. 703, 708, 293 P.3d 1023(2013)). Instead, the State only had to show that a reasonable fact finder could
find in favor of authenticity. As discussed above, it did.
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Because the trial court did not err in its evidentiary ruling, we need not
address Cook’s harmless error analysis. Therefore, we affirm.
WE CONCUR:
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