State Of Washington v. Edward Ames Yeck

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 77914-1-I
Respondent,
v. DIVISION ONE
EDWARD AMES YECK,
UNPUBLISHED OPINION
Appellant.
_______________________________ FILED: October 7, 2019
LEACH, J. — A jury convicted Edward Yeck of three counts of domestic
violence felony violation of a court order. On appeal, Yeck challenges the trial
court’s evidentiary rulings, denial of his motion for a mistrial, and imposition of a
mandatory DNA1 collection fee. We remand to strike the DNA collection fee but
otherwise affirm Yeck’s convictions.
FACTS
Edward Yeck and Terry Remsberg met in December 2015 and began an
“up and down” intimate relationship. Their relationship ended in February 2017.
In March 2017, the King County Superior Court entered an agreed order
protecting Remsberg from Yeck for three years.2 The order prohibited Yeck from
1 Deoxyribonucleic acid.
2 Yeck was present in court and signed the order for protection.
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having any contact with Remsberg, whether “in person or through others, by
phone, mail, or any means, directly or indirectly.”
On July 23, 2017, Remsberg received a Facebook message from Yeck’s
Facebook account. The message told Remsberg that Yeck sent her some
paperwork about “life insurance policies” and asked her, “[D]on’t you think you
have ignored me long enough? . . . can’t you find it in your Christian heart to
forgive me??!”
On July 29, 2017, Remsberg received an envelope postmarked July 27
with Yeck’s apartment listed as the return address. The envelope contained an
unsigned three-page handwritten letter. Remsberg immediately recognized
Yeck’s handwriting. In the letter, Yeck talks about acquiring a $500,000 life
insurance policy and wanting Remsberg to be the beneficiary “for just being you
and being my woman for 14 of the best months in my life.” The envelope also
contained a life insurance advertisement for Yeck and a page describing Yeck as
the owner of a $10,000 life insurance policy and Remsberg as the primary
beneficiary.3
Also on July 29, Remsberg received another message from Yeck’s
Facebook account. This message demeaned Remsberg’s intelligence and
~ The policy declaration page also included Yeck’s address, date of birth,
and gender.
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chided, “[Y]ou had a chance to recieve half a million dollars and chose to do
things your way and not take the guift.”4
Remsberg reported Yeck’s contacts to the Seattle Police Department.5
The police arrested Yeck on August 23, 2017. During a call from jail, Yeck told
his friend “Linda” that “Terry said I texted her or something” so the police “picked
me up on a no-contact order.” Later in the call, Yeck continued, “I sent her that
mail for the life insurance policy thing. I sent her—I was going to send her that in
the mail,” and that if she “turned me in for sending her that in the mail and
breaking the contact order, that’s pretty chippy shit.”
The State charged Yeck with three counts of domestic violence felony
violation of a court order.6 Yeck pleaded not guilty. At trial, the State questioned
Remsberg about how she learned of the Facebook messages Yeck sent her.
Remsberg testified that a notification “dings up on my phone” and she opened
‘[s]ome of them.” Defense counsel objected and moved to strike this testimony.
The trial court sustained the objection and instructed the jury to disregard the
State’s last question and Remsberg’s answer. The trial court denied defense
counsel’s request for a mistrial.
~ Misspellings in original.
~ Remsberg did not open the two Facebook messages she received from
Yeck’s account prior to giving them to the police.
6 The trial lasted for six days, November 30, 2017, through December 12,
2017.
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No. 77914-1-114
During cross-examination, defense counsel asked Remsberg if Yeck ever
visited a recreational vehicle (RV) in which she previously lived. Remsberg gave
the following nonresponsive answer: “He came to the RV and pounded on the
door and shook the RV and—” The State objected to this testimony. The trial
court sustained the objection and instructed the jury to disregard the question
and answer. The trial court again denied defense counsel’s request for a
mistrial.
The trial court admitted evidence of three of Yeck’s prior convictions for
violating an order into evidence.7 The court instructed the jury it could consider
Yeck’s prior convictions for the purpose of determining whether he “had twice
been previously convicted for violating the provisions of a court order.”8 Over
Yeck’s ER 404(b) objection, the court also allowed the jury to consider the prior
convictions “for the purpose of determining whether the actions charged in
counts I, II and Ill constituted a ‘mistake’ or ‘accident.”
Yeck did not testify but defended on the theory that the State failed to
prove he was the person who contacted Remsberg in July 2017.
The jury found Yeck guilty as charged on all counts. The trial court
imposed a standard range concurrent sentences and ordered that Yeck serve a
~ The court also admitted a copy of the March 2017 no-contact order.
8 As part of its burden to prove a felony violation of a court order charge,
the State must prove that the defendant has two prior convictions for violating an
order. See RCW 26.50.110(5).
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No. 77914-1-I /5
total of 60 months’ confinement. It waived all nonmandatory legal financial
obligations and imposed a $100 DNA collection fee.
Yeck appeals.
STANDARD OF REVIEW
We review a trial court’s decision to admit or exclude evidence for an
abuse of discretion.9 We also review a trial court’s denial of a motion for a
mistrial for an abuse of discretion.1° A trial court abuses its discretion when it
makes a manifestly unreasonable decision or bases its decision on untenable
grounds or reasons.11
ANALYSIS
I. Evidence of Prior Convictions
Yeck first contends the trial court erred by admitting his three prior
convictions to show absence of mistake or accident. He acknowledges that the
State properly offered evidence of two convictions to prove an element of the
charged crimes. He argues the court’s admission of evidence of a third
conviction and allowing the jury to consider the other two on the issue of mistake
or accident violated ER 404(b) because he did not claim mistake or accident as a
defense. We agree.12
~ State v. Gunderson, 181 Wash. 2d 916, 922, 337 P.3d 1090 (2014).
10 State v. Lewis, 130 Wash. 2d 700, 707, 927 P.2d 235 (1996).
~‘ Gunderson, 181 Wash. 2d at 922.
12 ER 404(b) prohibits a court from admitting “[e]vidence of other crimes,
wrongs, or acts. to prove the character of a person in order to show action in
. .
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No. 77914-1 -I /6
“Improper admission of evidence constitutes harmless error if the
evidence is of minor significance in reference to the evidence as a whole.”13 An
evidentiary error that is not of constitutional magnitude, such as erroneous
admission of ER 404(b) evidence, requires reversal only if there is a reasonable
probability that the error materially affected the trial’s outcome.14 No such
probability exits in this case. The overwhelming evidence of Yeck’s guilt leads us
to conclude that the outcome of his trial was not materially affected by the
admission of a third conviction or the court’s instruction about mistake or
accident.
To convict Yeck of the crime of violation of a court order, the trial court
instructed the jury that it needed to find that a no-contact order existed, that Yeck
knew of it, that Yeck “knowingly violated” it, and that he had “twice been
previously convicted for violating the provisions of a court order.”15
conformity therewith.” However, such evidence may be admitted for another
purpose, including, but not limited to, “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.” ER 404(b).
Evidence of the absence of mistake or accident “is never a material issue unless
first raised by the defendant.” State v. Ramirez, 46 Wash. App. 223, 228, 730 P.2d
98(1986).
13 Statev. Neal, 144 Wn.2d 600,611,30 P.3d 1255 (2001).
14 State v. Stenson, 132 Wash. 2d 668, 709, 940 P.2d 1239 (1997).
15 The court gave the same “to-convict” instructions on all counts. The
only difference among these instructions is the date upon which Yeck allegedly
contacted Remsberg, including count I (July 23, 2017), count II (between July 1
and July 29, 2017), and count III (July 29, 2017).
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No. 77914-1-I /7
At trial, the State presented evidence of the March 2017 no-contact order
and of Yeck’s awareness of that order. Remsberg testified that she received a
letter in Yeck’s handwriting, asking that she contact him to confirm her desire to
be a beneficiary on his half-million-dollar life insurance policy. She testified to
receiving two messages—both mentioning Yeck’s life insurance policy—sent
from Yeck’s Facebook account. The jury heard a recording of Yeck’s jail call
during which he stated, “I sent her that mail for the life insurance policy thing.”
Additionally, the evidence of Yeck’s prior convictions was admitted to prove an
essential element of the charged offense—that Yeck had twice before been
convicted for violating the provisions of a court order.16
Given this evidence, the jury had more than sufficient evidence to decide
that Yeck knowingly violated the March 2017 no-contact order. Thus, even if the
trial court had not allowed the jury to consider the prior convictions for purpose of
mistake or accident, the court’s error did not materially affect the outcome of the
trial.
II. Motion for Mistrial
Yeck also contends that the trial court should have granted his motions for
a mistrial. We disagree.
“ER 404(b) is not designed ‘to deprive the State of relevant evidence
16
necessary to establish an essential element of its case.” State v. Foxhoven, 161
Wash. 2d 168, 175, 163 P.3d 786 (2007) (quoting State v. Lough, 125 Wash. 2d 847,
859, 889 P.2d 487 (1995)).
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No. 77914-1 -I /8
A trial court should grant a mistrial based on an irregularity at trial only
when the irregularity so prejudices the defendant that nothing short of a new trial
can provide the defendant with a fair trial.17 ‘in determining whether a trial court
abused its discretion in denying a motion for a mistrial, we examine (1) the
seriousness of the irregularity, (2) whether the statement was cumulative of other
properly admitted evidence, and (3) whether the irregularity could be cured by an
instruction.”18 Because the trial court is in the best position to determine if an
irregularity at trial prejudiced the defendant, it has broad discretion to grant or
deny a mistrial based on those irregularities.19
The irregularities here were not serious. Courts have found irregularities
serious when the jury has heard inadmissible testimony that is inherently
prejudicial.20 Yeck contends that Remsberg violated motions in limine by
“repeatedly referencing her troubled, abusive relationship with Yeck.”
Remsberg’s testimony, however, was innocuous at best. She mentioned the
phrase “we had a domestic situation,” but the State immediately stopped and
redirected her testimony. Another time, Remsberg said, Yeck “came to the RV
and pounded on the door and shook the RV” but was not allowed to place that
17 State v. Wade, 186 Wash. App. 749, 773, 346 P.3d 838 (2015) (quoting
State v. Kwan Fai Mak, 105 Wash. 2d 692, 701, 718 P.2d 407 (1986)).
18 Wade, 186 Wash. App. at 773.
19Wade, 186 Wash. App. at 773.
20 See, e.g., State v. Escalona, 49 Wash. App. 251, 254-55, 742 P.2d 190
(1987); State v. Babcock, 145 Wash. App. 157, 163-64, 185 P.3d 1213 (2008).
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No. 77914-1-1/9
statement in context. Last, when asked about receiving Facebook messages,
Remsberg testified to opening “some of them.” In context, it is unclear whether
she was referring to opening some of her Facebook messages generally or
opening those from Yeck specifically.
Moreover, Remsberg’s testimony was cumulative of other evidence. The
trial court aptly observed,
Well, I think that the jury is aware that there has been some sort of
domestic violence in the case because of the fact that there is a
protection order. That she sought a protection order after the end
of the relationship. And so I don’t think that that comes as news to
the jury that there has been at least allegations of domestic
violence and a situation that the Court felt required a protection
order be entered. And so I—it’s not like none of that was known to
the jury or has been put before the jury and now suddenly we’re
exploring other incidences.
We agree with the trial court’s observations. Remsberg’s inadmissible
testimony, in essence, repeated what other evidence directly and indirectly
showed.
Finally, the trial court’s instruction to the jury cured the irregularity.
After Remsberg testified about opening “some” Facebook messages and
Yeck pounding on the RV door and shaking it, the court immediately
instructed the jury to disregard counsel’s question and Remsberg’s
answer. We presume that juries follow the court’s instructions.21 The
instruction did not unduly emphasize the testimony, and the irregularity
21 State v. Gamble, 168 Wash. 2d 161, 178, 225 P.3d 973 (2010).
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No. 77914-1-I / 10
was not “‘inherently prejudicial and of such a nature as to likely impress
itself upon the minds of the jurors.”22 Therefore, the trial court’s
instruction adequately cured the irregularity here. The court properly
denied Yeck’s motion for a mistrial.
Ill. Cumulative Error
Next, Yeck alleges that cumulative error deprived him of a fair trial.
Because the only error in this case—the admission of one of Yeck’s prior
convictions for the purpose of showing the absence of mistake or accident—was
harmless, we reject this claim.23
IV. DNA Collection Fee
Lastly, Yeck seeks to strike the $100 DNA collection fee from his judgment
and sentence.
Yeck contends, and the State concedes, that the DNA fee should be
stricken pursuant to State v. Ramirez24 because his DNA is already on file with
the Washington State Patrol Crime Lab. We accept the concession of error and
22 Escalona, 49 Wash. App. at 255 (quoting State v. Miles, 73 Wash. 2d 67, 71,
436 P.2d 198 (1968)).
23 State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d 646 (2006) (explaining
how the cumulative error doctrine “does not apply where the errors are few and
have little or no effect on the outcome of the trial”) (citing State v. Greiff, 141
Wash. 2d 910, 929, 10 P.3d 390 (2000)).
24 191 Wash. 2d 732, 746-50, 426 P.3d 714 (2018).
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No. 77914-1-I / 11
remand to the trial court for a ministerial order striking the DNA fee from the
judgment and sentence.25
CONCLUSION
We remand for amendment of the judgment and sentence consistent with
this opinion. We otherwise affirm.
WE CONCUR:
4/’
25 See State v. Ramos, 171 Wash. 2d 46, 48, 246 P.3d 811 (2011) (noting
“when a hearing on remand involves only a ministerial correction and no exercise
of discretion, the defendant has no constitutional right to be present”).
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