State Of Washington v. Say Sulin Keodara

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SAY SULIN KEODARA, UNPUBLISHED OPINION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

No. 70518-1-1/2

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

No. 70518-1-1/4

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 Wn.2d 499, 509, 98 P.3d 1199 (2004). We give

great deference to the magistrate or issuing judge's decision. State v. Cole, 128

Wn.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 Wn. App. 414, 426, 311 P.3d 1266 (2013) review denied, 179

Wn.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 Wn. 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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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

No. 70518-1-1/8

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 Wn. 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 Wn. 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 Wn.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 Wn.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

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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 Wn. 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 Wn. App. 307, 318, 966 P.2d 915 (1998)

(citing State v. Mierz. 72 Wn. 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 Wn.2d 713, 724, 230 P.3d 576 (2010)

(quoting State v. Smith, 148 Wn.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 Wn. App. 13, 23-24, 282 P.3d

152 (2012) (review denied, 176 Wn.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 Wn.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 Wn.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 Wn. App. 918, 930, 237 P.3d

928 (2010) (citing State v. Lough, 125 Wn.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 Wn.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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