Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40911-9-II

                             Respondent,

       v.

DAVID GLENN HOLCOMB,                                       UNPUBLISHED OPINION

                             Appellant.

       Worswick, A.C.J.  --  David Glenn Holcomb appeals his conviction for second degree 

burglary.  Holcomb argues that (1) the trial court committed prejudicial error in allowing the State 

to cross-examine Holcomb under ER 404(b) about his prior conviction for attempted second 

degree burglary.1  In a Statement of Additional Grounds (SAG), Holcomb argues (2) that the trial 

court violated his constitutional right to confront witnesses against him by allowing the State to 

ask Holcomb if he was surprised that his accomplice pleaded guilty when that accomplice did not 

testify at Holcomb's trial.  We agree that the trial court abused its discretion in admitting evidence 

of Holcomb's prior conviction and we reverse and remand for a new trial.

1 Holcomb also argues that the trial court erred under ER 404(b) in allowing the State to ask 
whether Holcomb was surprised that his accomplice pleaded guilty to second degree burglary, 
admitting he intended to take metal out of the abandoned machine shop. But, evidence of 
Holcomb's friend's guilty plea does not fall under ER 404(b) at Holcomb's trial because it is not 
evidence of another crime, wrong, or act by Holcomb.  The State moved to admit this evidence to 
impeach Holcomb's testimony.  Because Holcomb's argument against the trial court's admission 
of his accomplice's guilty plea is limited to ER 404(b), which does not apply, and because it fails 
to address impeachment, Holcomb inadequately briefed this issue.  Because this issue would not 
likely change this court's disposition of the appeal, we decline to address this narrow issue.  See 
State v. Donaghe, 172 Wn.2d 253, 263, n.11, 256 P.3d 1171 (2011).  Consequently, we do not 
address the State's "open-door" argument on appeal.   

No.  40911-9-II

                                            FACTS

       On October 19, 2009, Holcomb and two of his friends visited Holcomb's father at his 

Marine View Drive home.  Holcomb's father had a long career as a machinist and told Holcomb 

and his friends about an old machine shop just down Marine View Drive that had old machines 

that "were run by leather belts."  1 Report of Proceedings (RP) at 154.  Holcomb had a lifelong 

interest in machines and "couldn't fathom a machine being run by a leather belt," so he and his 

friends decided to go have a look shortly before five o'clock in the evening.  1 RP at 15, 154-55.

       Chinook Landing Marina is adjacent to Puyallup tribe trust land that has three abandoned 

buildings on it, two of which are abandoned homes and the third of which is an abandoned 

machine shop.  Christopher Muir, the on-duty Chinook Landing Marina security officer noticed a 

blue pickup truck in the marina's overflow parking lot, near the abandoned machine shop, that 

was not parked in any of the designated parking stalls.  Muir also noticed Holcomb and two other

people near the pickup truck looking around "in a way of . . . making sure no one [was] looking 

at them."  1 RP at 53-55.  Muir found their behavior suspicious and contacted Puyallup tribal 

police.

       Two tribal police officers responded, Officer Ryan Sales and Officer Douglas Johns.  

Officer Sales testified that he thought the pickup truck was suspiciously parked because it was not 

parked in a designated parking stall; rather, it was parked in the middle of the otherwise empty 

parking lot.  Because the officers were not sure if the truck's occupants entered any of the three 

abandoned buildings, Officers Sales and Johns began investigating all three.  The officers heard 

metal clanging, as if it was being moved, from inside the abandoned machine shop.  The shop had 

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No.  40911-9-II

several signs posted informing people that it was private property and prohibiting trespassing.

       Because most of the shop was boarded up, a small hole on the side of the building was the 

only way in or out.  The officers decided that it would be safest if Officer Sales knocked and 

yelled "police" from one side of the building while Officer Johns looked through the hole on the 

other side of the building.  I RP at 24-25, 94.  Just inside the hole, Officer Johns noticed buckets 

containing scraps of metal.  When he looked through the hole, Officer Johns saw at least two 

people, one of whom was holding a piece of metal; Officer Johns ordered them to put their hands 

up and to exit the building.  Holcomb, followed by his two friends, crawled out of the hole.  The 

officers arrested all three men.  The State charged Holcomb with second degree burglary.2

       At trial, Holcomb testified that, even though he saw the posted "Danger, Keep Out -- Stay 

Out" signs, he liked exploring, so he entered the machine shop.  1 RP at 161  Holcomb testified 

that he saw stacks of five-gallon buckets near the hole in the wall through which they entered and 

that the shop floor was covered with garbage, including metal scraps like nuts, bolts, screws, and 

washers.

       Holcomb further testified that, in looking at the machines, his friends moved some things 

around but Holcomb stopped them, reminding them that they were just there to look around.  On 

direct examination, Holcomb's attorney specifically inquired as to what Holcomb intended when 

he entered the machine shop, asking:

       Q:     At the time that you went in there, did you have any kind of intention to 
       take any items that you may have found?

2 By amended information, the State also charged Holcomb with two counts of bail jumping.  The 
jury found Holcomb guilty of one of those counts of bail jumping.  Holcomb does not appeal his 
bail jumping conviction.

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No.  40911-9-II

       A:     No, sir.
       Q:     There is cool stuff in old buildings.  If you found some cool stuff, were you 
       going to take it?
       A:     No.  We had no use for it.  I mean, what were  we going to do with 
       machinist stuff[?]  We really didn't know anything about [it] except that my father 
       was a machinist.

1 RP at 166.

       The State observed that Holcomb's defense to the second degree burglary charge was his 

lack of intent to commit a crime inside the shop.  Because Holcomb testified that he only intended 

to look at the machines and did not intend to take anything out of the shop, the State moved to 

introduce evidence of Holcomb's 2005 conviction for attempted second degree burglary. The 

State sought to introduce this evidence because Holcomb's past conviction required the same 

intent as his current second degree burglary charge and both involved metal.

       The State also argued that, by using the plural "we" instead of the singular "I" when 

testifying about his intent, Holcomb raised the issue of his friends' intent.  Thus, the State sought 

to ask Holcomb on cross-examination if he was surprised that his friend, Alan Veselovec, pleaded 

guilty to second degree burglary based on his involvement in the abandoned machine shop.  

Because Veselovec wrote in his statement on plea of guilty that he entered the Chinook Landing 

Marina machine shop "with the intent to take property from within," the State wanted to ask 

Holcomb if Veselovec's stated intent surprised him to impeach Holcomb's testimony that they 

only intended to look around.  2 RP at 191-92.

       The trial court granted the State's motion, allowing the State to question Holcomb on 

cross-examination about his 2005 attempted second degree burglary conviction and his 

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No.  40911-9-II

knowledge of Veselovec's guilty plea.  In making this ruling, the trial court found that Holcomb's 

testimony put his intent and his friends' intent into evidence and that the evidence the State sought 

to introduce was "proper for cross-examination and not unduly prejudicial."  2 RP at 198.  

Despite Holcomb's continued argument that the undue prejudice of testimony on Holcomb's past 

conviction for attempted second degree burglary based on an attempted metal theft greatly 

outweighed its probative value, the trial court disagreed and found this evidence was more 

probative than prejudicial.

       On cross-examination, Holcomb responded to the State's questions by acknowledging he 

pleaded guilty to attempted burglary in the second degree in 2005, that his 2005 conviction was 

based on allegations that Holcomb intended to take metal, and that his 2005 conviction required 

the same intent as his current second degree burglary charge.3 Holcomb also acknowledged that 

he was not surprised that Veselovec pleaded guilty to second degree burglary based on 

Veselovec's involvement at the Chinook Landing Marina machine shop.

       The jury found Holcomb guilty of second degree burglary and the trial court sentenced 

him to 22 months in prison.  Holcomb appeals.

3 Because Holcomb's 2005 conviction was based on an Alford plea, the trial court allowed 
Holcomb's attorney on redirect to elicit testimony that Holcomb neither admitted his guilt nor 
admitted that he attempted to steal metal.  See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 
160, 27 L. Ed. 2d 162 (1970).

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No.  40911-9-II

                                          ANALYSIS

                                    I.  ER 404(b) Evidence

A.     Standard of Review

       We review the trial court's decision to admit or deny ER 404(b) evidence for an abuse of 

discretion.  State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009).  A trial court abuses its 

discretion if its decision is manifestly unreasonable or based on untenable grounds.  State v. 

Johnson, 159 Wn. App. 766, 773, 247 P.2d 11 (2011).  By not following the requirements of ER 

404(b) in admitting evidence of past crimes, a trial court abuses its discretion.  Fisher, 165 Wn.2d 

at 745.

B.     Evidence of 2005 Conviction To Show Intent in 2009

       Holcomb argues that the trial court erred in allowing the State to introduce unduly 

prejudicial propensity evidence that Holcomb pleaded guilty to attempted second degree burglary 

in 2005, a crime also involving attempted metal theft, to show Holcomb's intent to steal metal in 

2009.  We agree.

       Although evidence of past crimes or misconduct is not admissible to show a defendant's 

criminal propensity, such evidence may be admissible for other purposes, like showing a 

defendant's intent.4 ER 404(b); Fisher, 165 Wn.2d at 744.  However, even if evidence of a 

defendant's past crime would show intent, a trial court may not admit that evidence under ER 

4 ER 404(b) states: 
       Evidence of other crimes, wrongs, or acts is not admissible to prove the character 
       of a person in order to show action in conformity therewith.  It may, however, be 
       admissible for other purposes, such as proof of motive, opportunity, intent, 
       preparation, plan, knowledge, identity, or absence of mistake or accident.

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No.  40911-9-II

404(b) if that evidence is unfairly prejudicial.5  Fisher, 165 Wn.2d at 745; ER 403.  

       We begin our analysis with a presumption that evidence of a defendant's past crimes is 

inadmissible and resolve doubts on whether to admit the evidence in the defendant's favor.  State 

v. Nelson, 131 Wn. App. 108, 115, 125 P.3d 1008 (2006).  Before a trial court may admit 

evidence of a defendant's past crime under ER 404(b), the trial court must (1) find that the past 

crime actually occurred by a preponderance of the evidence, (2) specify the purpose for which it is 

admitting the evidence, (3) find that the evidence is relevant to establish an element of the crime 

charged, and (4) weigh the evidence on the record to determine whether its probative value is 

outweighed by its prejudicial effect.  Fisher, 165 Wn.2d at 745.

       Where the State offers evidence of a defendant's past conviction to establish the 

defendant's intent in the current trial, the State must have a logical theory, other than criminal 

propensity, that links the past conviction with the defendant's intent to commit the current 

charged offense.  State v. Wade, 98 Wn. App. 328, 334, 989 P.2d 576 (1999).  A trial court errs if 

it admits evidence of a defendant's past conviction to show the defendant's intent to commit the 

current crime charged if the underlying facts do not show some additional relevancy.  Wade, 98 

Wn. App. at 335-36.  For example, in Wade, the trial court admitted evidence of the defendant's 

two prior convictions for possessing drugs with intent to distribute as evidence of Wade's intent 

to distribute drugs in a subsequent trial.  98 Wn. App. at 332-33, 336.  Even though all three 

5 ER 403 provides: "Although relevant, evidence may be excluded if its probative value is 
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading 
the jury, or by considerations of undue delay, waste of time, or needless presentation of 
cumulative evidence."

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No.  40911-9-II

instances occurred in the same neighborhood, within a fourteen month period, and involved 

similar quantities of the same drug, we concluded that the underlying facts were not similar 

enough to create a logical theory of the defendant's intent other than propensity.  Wade, 98 Wn. 

App. at 332-33, 336.  Rather, the State's theory was, since Wade possessed drugs with the intent 

to deliver them in the past, he must have possessed the drugs with the same intent to deliver now.  

Wade, 98 Wn. App. at 336.   Thus, the evidence of Wade's past convictions was inadmissible 

propensity evidence that the State could not use to establish Wade's intent in its current case.  

Wade, 98 Wn. App. at 336.

       Here, the trial court allowed the State to show Holcomb's intent to steal metal from the 

Chinook Landing Marina's machine shop by cross-examining Holcomb about his 2005 conviction 

for attempted second degree burglary because it required the same intent as the current charge 

and both were based on an attempt to steal metal.  The trial court found that this evidence was 

"proper for cross-examination and not unduly prejudicial." 2 RP at 198.  However, Holcomb 

correctly relies on Wade in arguing that evidence that he pleaded guilty to attempted second 

degree burglary in 2005 based on an attempted theft of metal in no way establishes that he 

intended to steal metal from the abandoned machine shop in 2009.  As in Wade, the only 

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No.  40911-9-II

possible inference from Holcomb's 2005 conviction is: Holcomb formed the intent to steal metal 

in 2005, so he must have formed the intent to steal metal in 2009.6

       Moreover, the facts underlying Holcomb's 2005 conviction are even more attenuated than 

the facts insufficient to establish additional relevancy of the past offense in Wade.  In Wade, all 

three offenses occurred within a fourteen month period, in the same neighborhood, with similar 

quantities of the same drug.  98 Wn. App. at 331-33.  But we held that these strikingly similar 

facts were still not enough to show Wade intended to deliver drugs on the third occasion just 

because he intended to deliver drugs on the first two occasions.  98 Wn. App. at 336.  Here, the 

only factual similarity between Holcomb's 2005 conviction and 2009 charge is that both involved 

intent to steal metal.  Thus, as in Wade, the singular factual similarity between Holcomb's 2005 

conviction and his 2009 charge is insufficient to allow evidence of Holcomb's 2005 conviction to 

show Holcomb's intent in 2009. Instead, the only possible inference from the evidence that 

Holcomb's 2005 conviction is, if Holcomb intended to steal metal in 2005, he must have intended 

to steal metal in 2009.  This is inadmissible propensity evidence.

6 The State argues that Division Three's Medrano case supports admitting evidence of Holcomb's 
2005 conviction to show his intent in 2009.  See State v. Medrano, 80 Wn. App. 108, 110-11, 
906 P.2d 982 (1995).  However, the State's reliance on Medrano is misplaced because that case 
specifically addressed a situation where the defendant claimed he did not have the requisite intent 
to commit the crime with which he was charged because he was suffering from alcohol and drug 
induced diminished capacity at the time of the crime.  Medrano, 80 Wn. App. at110-11.  Based on 
Medrano's diminished capacity defense, the trial court allowed an expert to testify that, in his 
opinion, Medrano was not suffering from diminished capacity at the time of the offense.  
Medrano, 80 Wn. App. at 113.  The Medrano court held that, in forming his opinion that 
Medrano was not suffering from diminished capacity, the expert could rely on inadmissible 
evidence, including evidence of Medrano's past convictions.  80 Wn. App. at 113-14.  Because 
neither diminished capacity nor expert testimony are at issue here, Medrano is not controlling.

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No.  40911-9-II

       A trial court abuses its discretion if it does not follow ER 404(b)'s requirements in 

admitting evidence of past crimes.  Fisher, 165 Wn.2d at 745.  Because ER 404(b) prohibits 

evidence of criminal propensity and requires additional relevance of a past conviction shown with 

factual similarities between a past conviction and a current charge to show intent, the trial court 

erred in allowing the State to show Holcomb's 2009 intent with his 2005 conviction because the 

factual similarities are negligible.  Then, even under deferential abuse of discretion review, the trial 

court erred in granting the State's ER 404(b) motion.

       Trial court errors admitting inadmissible evidence under ER 404(b) are not of 

constitutional magnitude and we review these errors to determine whether they were harmless. 

State v. Thach, 126 Wn. App. 297, 311, 106 P.3d 782 (2005).  Admitting forbidden ER 404(b) 

evidence is not harmless if the outcome of the trial would have been different if the error had not 

occurred.  Thach, 126 Wn. App. at 311.  Where the State's evidence against the defendant is not 

overwhelming, admitting forbidden propensity evidence under ER 404(b) is not harmless because 

it deprives the defendant of the right to a fair trial and requires reversal.  State v. Wilson, 144 Wn. 

App. 166, 178, 181 P.3d 887 (2008); See also State v. Sanford, 128 Wn. App. 280, 287-88, 115 

P.3d 368 (2005).

       Here, to convict Holcomb of second degree burglary as charged, the State had to prove 

beyond a reasonable doubt that Holcomb entered or remained unlawfully in a building on October 

19, 2009 with the intent to commit a crime against a person or property therein.  Holcomb's 

intent was the only element in dispute.  Holcomb testified that he did not intend to take any metal 

from the machine shop; rather, he only intended to look around.  The only evidence the State 

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No.  40911-9-II

offered to rebut Holcomb's testimony on his intent was the forbidden ER 404(b) propensity 

evidence.  Therefore, absent the State's forbidden propensity evidence, the only evidence in the 

record regarding Holcomb's intent is his testimony that he did not intend to take anything from 

the machine shop.  Accordingly, the trial court's ER 404(b) error was not harmless because the 

outcome of the trial reasonably would have differed absent the error.  We reverse and remand.

                              II.  Statement of Additional Grounds

       In a SAG, Holcomb argues that the trial court violated his constitutional right to confront 

the witnesses against him when it allowed the State to ask Holcomb if he was surprised that 

Veselovec pleaded guilty to second degree burglary.7  We disagree.

       We review alleged violations of the confrontation clause de novo.  State v. McDaniel, 155 

Wn. App. 829, 839, 230 P.3d 245 (2010).  The confrontation clause guarantees a criminal 

defendant the right to be confronted with the witnesses against him.  State v. Pugh, 167 Wn.2d 

825, 831, 225 P.3d 892 (2009); U.S. Const. amend. VI; Wash. Const. art. I, §22.  The 

confrontation clause bars testimonial hearsay statements made against a criminal defendant by a 

witness who did not testify at trial unless that witness was unavailable to testify at trial and the 

defendant had a prior opportunityfor cross-examination.  Pugh, 167 Wn.2d at 831; Crawford v. 

Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).  Hearsay is an out-of-

7 Whether Holcomb was surprised at the time of trial by Veselovec's guilty plea and Veselovec's 
statement on plea of guilty that he intended to steal metal from the machine shop is irrelevant to 
whether Holcomb entered the machine shop with the intent to steal metal.  See ER 401; ER 402.  
Moreover, even if Holcomb's lack of surprise at trial to Veselovec's guilty plea and stated intent 
was relevant, its minimal probative value is substantially outweighed by the high level of unfair 
prejudice of the evidence.  ER 403.  Although Holcomb's trial counsel raised these arguments 
below, neither Holcomb nor his current counsel address them on appeal.

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No.  40911-9-II

court statement offered for its truth.  ER 801(c).

       Here, Holcomb's confrontation clause argument fails because Veselovec did not make 

those statements against Holcomb.  Granted, Veselovec's statements were made for prosecutorial 

purposes and qualify as testimonial, but Veselovec made them in his own prosecution and not 

against Holcomb.  The confrontation clause only bars testimonial hearsay statements by a non-

testifying witness made against the defendant.  See Pugh, 167 Wn.2d at 831; State v. Koslowski, 

166 Wn.2d 409, 417, 209 P.3d 479 (2009); Crawford, 541 U.S. at 59.  Because the State did not 

seek to admit any out-of-court statements made by Veselovec for the purpose of prosecuting 

Holcomb, the confrontation clause does not apply.

       Because the trial court abused its discretion in admitting evidence of Holcomb's prior 

conviction, we reverse and remand for a new trial.

       A majorityof the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

                                                                Worswick, A.C.J.
We concur:

Van Deren, J.

Johanson, J.

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