State Of Washington, Res. v. Adan Manuel Cortes-gonzalez, App.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
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STATE OF WASHINGTON, ; O
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No. 73593-4-1
Respondent, 1
DIVISION ONE
v.
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ADAN MANUEL CORTES-GONZALEZ, UNPUBLISHED OPINION sr
Appellant. ) FILED: October 3. 2016
Spearman, J. — Absent a manifest abuse of discretion, we will not disturb
a trial court's decision to admit evidence. Adan Cortes-Gonzalez appeals his
conviction of one count each of second and fourth degree assault. He argues
that the trial court abused its discretion and violated his right to a fair trial by
admitting a photograph taken at the scene of the crime. Because the trial court's
decision to admit the photograph was not manifestly unreasonable, we affirm.
FACTS
Many people were on the shore of the Snoqualmie River on a sunny
summer afternoon. Cortes-Gonzalez and his wife were at the river taking photos.
Michael Noonan was helping his granddaughter, Maeva Nolan, carry a kayak
from the parking area to the river.
Cortes-Gonzalez believed that the kayak struck his wife and he yelled at
Noonan. Noonan denied hitting anyone and told Cortes-Gonzalez to leave them
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alone. The dispute escalated into a physical altercation in which Noonan
sustained significant injuries. Bystanders called the police and indicated that
Cortes-Gonzalez was the instigator. Cortes-Gonzalez was arrested and charged
with one count each of second and fourth degree assault.
At trial, Noonan, Nolan, and two witnesses testified for the State. They
each stated that a man approached Noonan, threw the first punch, held Noonan
down and hit him while he was in the water, punched Nolan, and kicked Noonan
when he tried to get up. One of the State's witnesses identified Cortes-Gonzalez
in court as the man involved in the fight. Noonan stated that he did not get a
good look at the person who hit him. Nolan described the aggressor as a big man
with black hair. Another witness described the person involved as a large man in
a red shirt.
The State submitted into evidence a video taken by one of the witnesses.
The video does not show the beginning of the fight but is otherwise consistent
with the events described by the State's witnesses. In the video, which was taken
from about 40 feet away, the aggressor appears to be a man with dark hair
wearing khaki shorts and a maroon shirt with a distinctive logo. Over Cortes-
Gonzalez's objection, the trial court also admitted a photograph taken at the
scene of the crime. The photograph, which was taken from only a few feet away,
shows Cortes-Gonzalez wearing khaki shorts and a maroon shirt with a
distinctive logo.
Cortes-Gonzalez's wife testified that Noonan provoked her husband, threw
the first punch, and hit Cortes-Gonzalez repeatedly during the fight. She stated
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that Cortes-Gonzalez did not hit Nolan and she did not see him kick Noonan. In
closing argument, Cortes-Gonzalez argued that he struck Noonan and Nolan in
self-defense.
The jury convicted Cortes-Gonzalez as charged. He appeals.
DISCUSSION
Cortes-Gonzalez argues that the trial court erred in admitting the
photograph taken at the scene of the crime. We review a trial court's evidentiary
decisions for abuse of discretion. State v. Finch, 137 Wash. 2d 792, 810, 975 P.2d
967 (1999). The trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds, jd. (citing State v. Stenson, 132
Wash. 2d 668, 701, 940 P.2d 1239 (1997)). A decision is manifestly unreasonable if
it "'adopts a view that no reasonable person would take.'" Salas v. Hi-Tech
Erectors, 168 Wash. 2d 664, 669, 230 P.3d 583 (2010) (quoting In re Pers.
Restraint of Duncan, 167 Wash. 2d 398, 402-03, 219 P.3d 666 (2009)).
In general, evidence is admissible if it is relevant. ER 402. Evidence is
relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more or less probable than it
would be without the evidence. ER 401. But relevant evidence may be excluded
if it poses a danger of unfair prejudice that substantially outweighs its probative
value. Stenson, 132 Wash. 2d at 702 (citing ER 403). Evidence may be unfairly
prejudicial when it excites an emotional rather than a rational response or when it
promotes erroneous inferences. City of Auburn v. Hedlund, 165 Wash. 2d 645, 654-
55, 201 P.3d 315 (2009) (citations omitted). The trial court has broad discretion in
No. 73593-4-1/4
weighing the probative value versus the unfair prejudice of evidence. Stenson,
132 Wash. 2d at 702 (citing State v. Rivers. 129 Wash. 2d 697, 710, 921 P.2d 495
(1996)).
At trial, the State offered a photograph into evidence to establish identity
and prove that Cortes-Gonzalez was the man in the video. In the photo, Cortes-
Gonzalez is standing near the river in front of an ambulance. He is wearing khaki
shorts and a maroon shirt. His hands are behind his back. A person wearing a
dark shirt, khaki pants, and what appears to be a gun in a belt holder is partially
visible. The person is standing one to two feet behind and to the side of Cortes-
Gonzalez.
Cortes-Gonzalez objected that the photo was unfairly prejudicial because
it was taken at the time of his arrest. He also questioned the photo's relevance.
The trial court rejected Cortes-Gonzalez's arguments and admitted the photo.
The trial court ruled that, since the State had the burden to prove identity and
neither of the victims identified Cortes-Gonzalez, the photo was relevant to
identity. The court noted that the photo did not depict Cortes-Gonzalez with
police officers or police cars.
On appeal, Cortes-Gonzalez asserts that the photograph should have
been excluded under ER 403 because it posed a danger of unfair prejudice that
substantially outweighed its probative value. He argues that the photograph was
unfairly prejudicial because it shows him standing in front of an ambulance with
his hands behind his back and a person who appears to be an armed police
No. 73593-4-1/5
officer standing nearby. Relying on State v. Rivers. 129 Wash. 2d 697, 921 P.2d
495 (1996), Cortes-Gonzalez also argues that the photograph was not relevant.
In Rivers, the trial court admitted a booking photograph of the defendant,
jd. at 710. The trial court ruled that defense counsel had indicated in opening
argument that identity would be at issue and the photo was relevant to that issue.
Id. The trial court also ruled that any prejudice was minimal since the jury knew
the defendant had been arrested. Id. at 711. The Supreme Court upheld the
ruling. \± at 712.
Cortes-Gonzalez argues that in this case, unlike Rivers, defense counsel
did not indicate that he intended to challenge identity. He argues that, because of
this distinction, identity was not at issue in the present case and the photo was
not relevant. He is mistaken.
Rivers does not stand for the proposition that evidence is only relevant to
establish identity in the circumstances of that case. Rather, Rivers illustrates the
proper inquiry for determining whether evidence is admissible under ER 403.
Like the Rivers court, the trial court in this case considered whether the evidence
was relevant and weighed its relevance against the danger of unfair prejudice.
In this case, the trial court concluded that the photograph was relevant
because the State had the burden of proving identity and neither of the victims
had identified Cortes-Gonzalez. The trial court also considered the risk of unfair
prejudice and noted that there are no police cars or uniformed police officers in
the photo. The trial court's decision is based on proper grounds. And the decision
is not manifestly unreasonable because a reasonable person could conclude that
No. 73593-4-1/6
any danger of unfair prejudice from the photograph did not substantially outweigh
its relevance. There was no abuse of discretion.
Furthermore, even if the trial court erred, the error was harmless. An
erroneous decision to admit evidence is grounds for reversal only if, within
reasonable probabilities, the error materially affected the outcome of the trial.
State v. Evervbodvtalksabout, 145 Wash. 2d 456, 468-69, 39 P.3d 294 (2002)
(citing State v. Bourgeois, 133 Wash. 2d 389, 403, 945 P.2d 1120 (1997)). To
assess whether the error was harmless, we measure the admissible evidence of
Cortes-Gonzalez's guilt against the prejudice, if any, caused by the photograph.
Bourgeois, 133 Wash. 2d at 403. Measuring the testimony of the State's witnesses
and the video evidence against any prejudicial effect from the photograph, we
conclude that it is not reasonably probable that the outcome of the trial would
have been different had the photo not been admitted.
Affirmed.
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WE CONCUR: