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.  40771-0-II

                             Respondent,

       v.

TRAVIS WADE NEWSOME,                                       UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --    Travis Wade Newsome appeals his convictions of first degree 

burglary (domestic violence), theft of a motor vehicle, second degree driving while license 

suspended or revoked, fourth degree assault (domestic violence), and unlawful imprisonment 

(domestic violence).  Newsome challenges two jury instructions pertaining to the burglary charge, 

the sufficiency of the evidence supporting his burglary conviction, his attorney's decisions 

regarding the admission of evidence, the trial court's exclusion of evidence, and the trial court's 

consideration of testimony during his sentencing hearing.  Because the evidence was insufficient 

to prove that the knife Newsome possessed in the course of the burglary was a deadly weapon, 

we reverse his first degree burglary conviction and remand for further proceedings.  

No. 40771-0-II

                                             Facts

       On the evening of September 24, 2009, Renee Johnson met Newsome at a tavern to 

discuss their troubled relationship.  The two left the tavern together after midnight, and Johnson 

drove Newsome home.  When they arrived, a physical struggle ensued, during which Newsome 

allegedly attempted to force himself on Johnson and strangle her.  Johnson opened the car door 

and fell to the ground.  After further struggle, Newsome ordered Johnson back into the car and 

made her drive to a nearby store.  When the car came to a rolling stop, Newsome got out, and 

Johnson drove away.  She pulled into a driveway and called 911 as well as her best friend, Paula 

Rose.  

       The next day, the store's owner discovered that his 4x4 vehicle, which had been in the

parking lot with a key in the ignition, was missing.  Officers later found the vehicle on the side of 

the highway.  

       Newsome was still at large when Johnson and her daughter returned to Johnson's home 

on September 26.  When they checked the periphery of the house, they saw and heard signs that 

someone had been there and might be inside.  Johnson and her daughter screamed, ran to their 

car, and called 911.  While waiting for law enforcement, Johnson saw Newsome walking through 

her back yard toward an adjoining field.  A few minutes later, Lewis County Sheriff's Deputy 

Duke Adkisson tracked Newsome and found him hiding in some tall grass.  The deputy ordered 

Newsome to the ground, handcuffed him, and searched him after asking if anything in Newsome's 

pockets might cause injury.  Newsome said he had a knife in his pocket, and the deputy found a 

paring knife with the blade pointed down in his jeans.  

       The State charged Newsome with first degree burglary (domestic violence), the alternative 

                                               2 

No. 40771-0-II

offense of residential burglary (domestic violence), theft of a motor vehicle, second degree driving 

while license suspended or revoked, fourth degree assault (domestic violence), second degree 

assault with sexual motivation (domestic violence), and unlawful imprisonment (domestic 

violence).  

       At trial, Johnson described the attack as set forth above.  Both she and her daughter 

testified that when they entered her home after Newsome's arrest, several items were out of place.  

Johnson added that she and Newsome had never lived together and that he was not welcome at 

her house after June 2008.  Newsome was at her residence three or four times in 2009, however, 

as an uninvited guest.  He never had a key and never kept his things at her house.  She testified 

that she told Newsome at the tavern that the relationship was over, but he wanted to make it 

work.  

       Rose testified that Johnson left her two phone messages in the early morning hours of 

September 25 after Johnson called 911 but before the deputies arrived.  Rose said that Johnson 

was "scared and panicked and just sounded horrible."  Report of Proceedings (RP) (May 5, 2010) 

at 74.  Rose transferred those messages to a compact disk that the State played for the jury.  

       The deputies who responded to Johnson's 911 call on September 25, testified that she was 

very upset when they arrived.  When the deputies asked what had happened, Johnson described 

the altercation with Newsome.  After his arrest, Newsome admitted to a deputy that he and 

Johnson had argued as she drove him home, but he denied that any physical struggle had 

occurred.  

       At the end of the State's case in chief, the trial court informed the parties that inadvertent 

contact between Newsome and a juror during a recess might have revealed something the juror 

                                               3 

No. 40771-0-II

should not have seen, i.e., his handcuffs.  The defense proposed explaining why Newsome was in 

custody by having him acknowledge that he was currently serving a driving under the influence 

(DUI) sentence.  The State agreed that this would be appropriate because a certified copy of 

Newsome's driving record, which explained that his license suspension was related to a DUI 

offense, had already been admitted.  

       The defense then argued that the evidence was insufficient to support the first degree 

burglary charge because Newsome had not used the knife in his pocket as a deadly weapon.  The 

State responded that the knife's possession was equivalent to its use as a deadly weapon, and the 

trial court denied the motion to dismiss.  

       Miranda Rasmussen testified for the defense that Newsome and Johnson were getting 

along well during the summer of 2009.  Defense counsel then asked whether the State would 

object if Rasmussen testified about Newsome's thoughts concerning a possible break-up with 

Johnson.  In an offer of proof, Rasmussen said she and Newsome discussed his relationship with 

Johnson a few nights before September 24, and that Newsome said he was thinking of ending it.  

The defense argued that this testimony was admissible to show Newsome's state of mind.  When 

the State replied that such testimony from Rasmussen would be self-serving hearsay insulated 

from cross-examination, the trial court agreed and refused to allow it.  

       Newsome testified that he could not drive because he was serving a DUI sentence.  He 

said that when Johnson proposed going out on September 24, he did not see a future with her.  

He then testified that although neither of them wanted to give up the relationship, they both 

wanted it to end when they met on September 24.  He said he borrowed the 4x4 vehicle after 

Johnson left him at the store but abandoned it when it stopped working properly.  Newsome said 

                                               4 

No. 40771-0-II

he went to Johnson's house at her suggestion and entered with a key to collect some personal 

belongings.  He found the knife on the floor by the back door.  Johnson repeated on rebuttal that 

she had never given Newsome a key to her house.  

       After the State's rebuttal witnesses testified, defense counsel objected to the trial court's 

refusal to give his proposed jury instruction defining a deadly weapon.  The trial court responded 

that its instruction was the same in substance but simply deleted irrelevant factual references.  The 

proposed instruction read,

              Deadly weapon means any weapon, device, instrument, substance, or 
       article, which under the circumstances in which it is used, attempted to be used, or 
       threatened to be used, is readily capable of causing death or substantial bodily 
       harm.
              The "circumstances" of the use, attempted use or threatened use described 
       above include the intent and present ability of the user, the degree of force, the 
       part of the body to which it is applied and the physical injuries inflicted.  Ready 
       capacity is determined in relation to surrounding circumstances with reference to 
       potential substantial bodily harm.

Clerk's Papers (CP) at 40.  The court instructed the jury as follows:  

              Deadly weapon means any weapon, device, or instrument, which under the 
       circumstances in which it is used, attempted to be used, or threatened to be used, 
       is readily capable of causing death or substantial bodily harm.
              The "circumstances" of the use, attempted use, or threatened use include, 
       but are not limited to, the intent and present ability of the user.  Ready capacity is 
       determined in relation to surrounding circumstances with reference to substantial 
       bodily harm.  

CP at 49.  Defense counsel also objected to the permissive inference instruction, arguing that it 

was inappropriate given Newsome's relationship with Johnson.  

       During closing argument, the State contended that the knife found in Newsome's 

possession was a deadly weapon because he was carrying it when he left Johnson's house.  When 

defense counsel responded that the jury had to consider the circumstances of how he used the 

                                               5 

No. 40771-0-II

knife before finding that it was a deadly weapon, the State replied that carrying the knife was 

using it.  

       The jury found Newsome guilty of first degree burglary, theft of a motor vehicle, second 

degree driving while license suspended or revoked, fourth degree assault, and unlawful 

imprisonment, but it acquitted him of second degree assault based on the alleged strangulation 

attempt.  

       During sentencing, the trial court allowed the State to present testimony from Newsome's 

district court probation officer in an attempt to show why the maximum penalty was appropriate.  

Defense counsel did not object and cross-examined the officer.  The State requested a maximum 

sentence on the felony convictions with the misdemeanor sentences running consecutively.  The 

trial court imposed a high-end standard range sentence on the burglary conviction but ran the rest 

of the sentences concurrently.  

       Newsome appeals his convictions and sentences.  

                                           Discussion

Deadly Weapon Instruction

       Newsome argues that the trial court erred in refusing his proposed instruction explaining 

that the knife found in his possession was not a deadly weapon per se but only in the manner used.  

Newsome makes this argument without setting forth the language of the proposed and final 

instructions and thus violates RAP 10.4(c), which provides that a party who presents an issue 

requiring the study of a jury instruction should include that instruction in his brief on appeal.  In 

this context, the word "should" is a word of command, not merely suggestion.  Thomas v. 

French, 99 Wn.2d 95, 99, 659 P.2d 1097 (1983).

                                               6 

No. 40771-0-II

       In addition to failing to include the text of the relevant instructions in his brief, Newsome 

fails to cite the pages of the clerk's papers containing those instructions, thereby violating RAP 

10.3(a)(6).  He also fails to cite the court's discussion of the proposed deadly weapon instruction 

and its decision to provide an instruction that was both substantively similar as well as a correct 

statement of the law.  See RCW 9A.04.110(6).  Had Newsome properly cited the record and 

included the instructions in his brief, the lack of merit in his argument would have been obvious.  

We decline to consider this issue further.  

Sufficiency of the Evidence -- First Degree Burglary

       Newsome argues here that the evidence was insufficient to prove that the knife he 

possessed was a deadly weapon, which was an essential element of the first degree burglary 

charge.  RCW 9A.52.020(1)(a). 

       Evidence is sufficient if, viewed in a light most favorable to the prosecution, it permits any 

rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.  State 

v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  "A claim of insufficiency admits the truth 

of the State's evidence and all inferences that reasonably can be drawn therefrom."  Salinas, 119 

Wn.2d at 201.

       To convict Newsome of first degree burglary, the jury had to find that he entered or 

remained unlawfully in a building, that the entering or remaining was with intent to commit a 

crime against a person or property therein, that in so entering or while in the building or in 

immediate flight therefrom he was armed with a deadly weapon, and that these acts occurred in 

Washington.  Newsome challenges only the sufficiency of the evidence supporting the deadly 

weapon element, which the court defined as any weapon, device, or instrument "which under the 

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No. 40771-0-II

circumstances in which it is used, attempted to be used, or threatened to be used, is readily 

capable of causing death or substantial bodily harm."     CP  at  49.  This instruction correctly 

reflected the statutory definition in RCW 9A.04.110(6), which provides that weapons can be 

deadly per se (i.e., explosives and firearms), or deadly because they are capable of causing death 

or substantial bodily harm under the circumstances in which they are used, attempted to be used, 

or threatened to be used.  State v. Taylor, 97 Wn. App. 123, 126, 982 P.2d 687 (1999).  

       As the Washington Supreme Court recently explained, this statutory definition means that 

mere possession is insufficient to render "deadly" a dangerous weapon other than a firearm or 

explosive.  In re Pers. Restraint of Martinez, 171 Wn.2d 354, 366, 256 P.3d 277 (2011).  

       To interpret the statute otherwise would eliminate the distinction between deadly 
       weapons per se (firearms and explosives) and deadly weapons in fact (other 
       weapons).  Likewise, it would render meaningless the provision as to the 
       circumstances of use, attempted use, or threatened use.

Martinez, 171 Wn.2d at 366.  

       At issue in Martinez was whether the evidence was sufficient to support a first degree 

burglary conviction where an officer chased Martinez from a building, tackled him, and noticed an 

empty knife sheath on his belt during a pat down.  When the officer asked about the sheath, 

Martinez said that the knife must have fallen out while he was running.  Officers later found a 

knife about 15 feet from the building; Martinez identified the knife as his own.  Martinez, 171 

Wn.2d at 358.  

       Because neither actual nor threatened use of the knife was at issue, the relevant inquiry 

was whether the State presented sufficient evidence to prove attempted use.  Martinez, 171 

Wn.2d at 368.  Even when viewed in the light most favorable to the State, the evidence could not 

                                               8 

No. 40771-0-II

support such a finding.  Martinez, 171 Wn.2d at 368.  No one saw Martinez with the knife, he 

manifested no intent to use it either before or after he was apprehended, and he did not have 

access to it during the scuffle with the officer.  "[T]he only evidence that Mr. Martinez attempted 

to use the knife was the unfastened sheath.  This evidence is insufficient to lead a rational fact 

finder to find intent to use the weapon beyond a reasonable doubt." Martinez, 171 Wn.2d at 369.

       We must reach the same conclusion here.  As in Martinez, the only inquiry is whether 

Newsome attempted to use the knife; there is no evidence that he actually used it or threatened to 

do so.  The record does not provide evidence of an attempted use during his pursuit or 

apprehension.  Once Deputy Adkisson found him hiding, Newsome complied with the deputy's 

commands and made no attempt to resist the arrest or search.  The deputy had no idea that 

Newsome had a knife until Newsome so informed him.  The State argues that the knife was 

positioned in such a way that it could have been used as a weapon, but a potential use is not an 

attempted use.  Newsome's possession of the knife did not render it a deadly weapon, and we 

must reverse his first degree burglary conviction.  

Permissive Inference Instruction

       Newsome also contends that the trial court erred in giving the jury an "inference of intent"

instruction pertaining to the burglary charges that the evidence did not support.  Despite our 

reversal of Newsome's first degree burglary conviction, this issue is not moot because of the 

possibility of his retrial on the residential burglary alternative.1

       The instruction at issue informed the jury that 

              [a] person who enters or remains unlawfully in a building may be inferred 

1 To prove residential burglary, the State again had to prove that Newsome entered or remained in 
Johnson's home with intent to commit a crime against a person or property therein.  

                                               9 

No. 40771-0-II

       to have acted with intent to commit a crime against a person or property therein.  
       This inference is not binding upon you and it is for you to determine what weight, 
       if any, such inference is to be given.

CP at 57.  This instruction was based on RCW 9A.52.040, which provides,

       In any prosecution for burglary, any person who enters or remains unlawfully in a 
       building may be inferred to have acted with intent to commit a crime against a 
       person or property therein, unless such entering or remaining shall be explained by 
       evidence satisfactory to the trier of fact to have been made without such criminal 
       intent.

       A permissive inference is constitutionally impermissible only when, under the facts 

presented, there is no rational way the trier of fact could make the connection the inference 

permits.  State v. Jackson, 112 Wn.2d 867, 880, 774 P.2d 1211 (1989); State v. Grayson, 48 Wn. 

App. 667, 670, 739 P.2d 1206, review denied, 109 Wn.2d 1008 (1987); see also State v. Deal, 

128 Wn.2d 693, 700, 911 P.2d 996 (1996) (when permissive inferences are only part of State's 

proof supporting an element, due process is not offended if prosecution shows that inference 

more likely than not flows from proven fact).  Newsome contends that the permissive inference 

instruction was impermissible because "[i]t was undisputed that [he] had been coming and going 

freely in and out of Johnson's house for years," thereby eliminating any basis to claim that his 

presence in the house created grounds to infer that his motives were criminal.  Br. of Appellant at 

17.

       This argument ignores testimony from several witnesses.  Rose testified that two weeks 

before the incident, Johnson had told Newsome he was not welcome at her home.  Johnson's 

daughter testified that when Newsome had been at her mother's home three weeks earlier, 

Johnson had become very upset when he refused to leave.  By September 2009, Newsome had 

not been welcome at Johnson's house for "a long time."      RP (May 6, 2010) at 67.  Johnson 

                                               10 

No. 40771-0-II

testified that after summer 2008, Newsome was not welcome at her home.          She denied that 

Newsome had a key to her home or any personal items to collect.  She added that after 

Newsome's entry on September 26, several windows were open and liquor and food were 

scattered throughout the house.  In addition, the knife found in Newsome's pocket matched a set 

of Johnson's kitchen knives.  Furthermore, Newsome's actions in fleeing and hiding in the grass 

do not appear to be those of a person who entered the residence for a lawful purpose.  We see no 

error in the trial court's conclusion that given the evidence, the permissive inference instruction 

was appropriate.  

Ineffective Assistance of Counsel

       Newsome claims here that his attorney represented him ineffectively by failing to object to 

the admission of hearsay evidence and by having him testify about his prior DUI conviction.  

       To prevail, Newsome must show both deficient performance and resulting prejudice.  

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).  

Counsel's performance is deficient if it fell below an objective standard of reasonableness.  State 

v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998).  Our 

scrutiny of counsel's performance is highly deferential; we strongly presume reasonableness.  

State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995).  To rebut this presumption, 

a defendant bears the burden of establishing the absence of any conceivable legitimate tactic 

explaining counsel's performance.  State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).  To 

establish prejudice, a defendant must show a reasonable probability that the outcome of the trial 

would have differed absent the deficient performance.  State v. Thomas, 109 Wn.2d 222, 226, 743 

P.2d 816 (1987).  

                                               11 

No. 40771-0-II

       Deficient performance is not shown by matters that go to trial strategy or tactics.  State v. 

Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).  When a defendant claims ineffective 

assistance based on counsel's failure to challenge the admission of evidence, the defendant must 

show (1) an absence of legitimate strategic or tactical reasons supporting the challenged conduct, 

(2) that an objection to the evidence likely would have been sustained, and (3) that the trial's 

result would have differed had the evidence not been admitted.  Saunders, 91 Wn. App. at 578.

                                               12 

No. 40771-0-II

       A.     Failure to Object to Hearsay

       Newsome contends that his attorney was deficient in failing to object to testimony from 

two deputies about Johnson's statements when they responded to her initial 911 call.  Newsome 

does not describe these statements but, based on the citation in his statement of facts, we assume 

that he is referring to Johnson's initial statements concerning her altercation with Newsome.2

       Newsome contends that these statements were inadmissible under several evidentiary 

rules, but he does not discuss the rule concerning excited utterances.  Under ER 803(a)(2), a 

hearsay statement is admissible as an excited utterance if a startling event occurred, if the 

statement was made while the declarant was under the stress of the excitement caused by the 

event, and if the statement related to the startling event.  State v. Chapin, 118 Wn.2d 681, 686, 

826 P.2d 194 (1992).  

       An excited utterance may be prompted by a question that follows a startling event, such as 

when an investigator asks a crime victim what happened.  State v. Owens, 128 Wn.2d 908, 913, 

913 P.2d 366 (1996); see also State v. Robinson, 44 Wn. App. 611, 616, 722 P.2d 1379 

(responses to questions admissible as excited utterances), review denied, 107 Wn.2d 1009 (1986); 

State v. Fleming, 27 Wn. App. 952, 958, 621 P.2d 779 (1980) (victim's statements to police 

during three-hour interview admissible as excited utterances),  review denied, 95 Wn.2d 1013 

(1981).  Here, a startling event occurred, and the deputies who responded to Johnson's resulting 

2 The State refused to address the merits of this argument due to Newsome's failure to cite or 
describe the statements he finds objectionable.  In his reply brief, Newsome asserted that he could 
not have set forth the statements in his opening brief because of the 50-page limit.  RAP 10.4(b).  
Newsome's opening brief was 31 pages long, and we assume that he could have provided a 
citation to the record in the 19 pages remaining before he reached the page limit.  We also note 
that a party may request an extension of the page limit when additional briefing is necessary.  RAP 
10.4(b).   
                                               13 

No. 40771-0-II

911 call testified that she was still very upset when they arrived.  They asked her what had 

happened, and her responses related to the startling event.  Consequently, her statements were 

admissible under ER 803(a)(2), and there is little likelihood that the trial court would have 

sustained an objection to their admission.  See State v. Simmons, 63 Wn.2d 17, 20-21, 385 P.2d 

389 (1963) (principal rationale for excluding hearsay not present when both hearsay declarant and 

recipient testified at trial and were available for cross-examination).  

       Moreover, there is no reasonable likelihood that the trial's result would have differed had 

this testimony been excluded.  The jury heard recordings of the phone messages Johnson made to 

her friend before the deputies arrived, and Johnson testified fully and consistently with the 

deputies' testimony about her statements.  We find no basis for this claim of ineffective assistance 

of counsel.

       B.     Admission of DUI Conviction

       Newsome next contends that his attorney was ineffective in deciding to explain his 

presence in shackles with testimony that he was serving a sentence for a DUI conviction.  He 

argues that a mistrial motion is the only effective course when a juror sees the defendant shackled.  

       The record shows that the trial court informed the parties that inadvertent contact between 

Newsome and a juror during a recess might have revealed Newsome's handcuffs and the fact that 

he was already in custody.  But even if a juror did see Newsome in handcuffs, a new trial was not 

warranted absent a showing of prejudice.  State v. Ollison, 68 Wn.2d 65, 69, 411 P.2d 419, cert. 

denied, 385 U.S. 874 (1966); see also State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994) 

(mistrial appropriate only when trial irregularity so prejudices defendant that nothing short of new 

trial can ensure he will be tried fairly).  As the State pointed out, Newsome could not show 

                                               14 

No. 40771-0-II

prejudice because the fact of his prior conviction was already in evidence.  Defense counsel made 

a tactical decision to have Newsome explain that he was serving a DUI sentence.  We see no 

probability that this explanation altered the trial's outcome given the considerable evidence that 

Newsome and Johnson quarreled, that he took another's car, and that he entered Johnson's 

house.   This claim of ineffective assistance also fails.  

Exclusion of State-of-Mind Evidence

       Newsome argues here that the trial court violated his right to present a complete defense 

when it prohibited a witness from testifying about Newsome's state of mind concerning his 

relationship with Johnson.  

       A criminal defendant has a constitutional right to present relevant, admissible evidence in 

his defense.  State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992), review denied, 120 

Wn.2d 1022, cert. denied, 508 U.S. 953 (1993).  Nonetheless, the refusal to admit evidence lies 

largely within the trial court's discretion, and we will not reverse the trial court's decision absent 

an abuse of that discretion.  Rehak, 67 Wn. App. at 162.  

       Newsome wanted his friend Rasmussen to testify that he was thinking of breaking up with 

Johnson before they met on September 24.  He argued that Rasmussen's testimony was 

admissible to show his state of mind.  See ER 803(a)(3) (statements of declarant's then-existing 

state of mind not excluded by hearsay rule).  This testimony would have rebutted Johnson's 

testimony that the break-up was her idea.  The trial court agreed with the State that the proposed 

testimony was self-serving hearsay and thus inadmissible.  

       Division Three of this court recently explained that there is no "self-serving hearsay" rule 

that bars admission of statements that would otherwise satisfy a hearsay rule exception.  State v. 

                                               15 

No. 40771-0-II

Pavlik, No. 29172-3-III, 2011 WL 6607312, at *3 (Wash. Ct. App. Dec. 22, 2011).  The court 

noted initially that Washington adopted the Rules of Evidence in 1979, and one of those rules 

provides that a statement is not hearsay if it is offered against a party and is the party's own 

statement.  Pavlik, 2011 WL 6607312, at *3-4 (citing ER 801(d)(2)).  Prerule cases admitted 

such admissions by party-opponents as hearsay exceptions instead of excluding them from the 

hearsay definition altogether.  Under this approach, admissions of a party were hearsay but 

admissible against the party if relevant.  Pavlik, 2011 WL 6607312, at *4.  It is against this 

backdrop that the reference to self-serving hearsay was made.  Pavlik, 2011 WL 6607312, at *4 

(citing State v. Huff, 3 Wn. App. 632, 636, 477 P.2d 22 (1970), review denied, 79 Wn.2d 1004 

(1971)).  As the court stated in Huff,

              Out-of-court admissions by a party, although hearsay, may be admissible 
       against the party if they are relevant.  However, if an out-of-court admission by a 
       party is self-serving . . . in the sense that it tends to aid his case, and is offered for 
       the truth of the matter asserted, then such statement is not admissible under the 
       admission exception to the hearsay rule.

3 Wn. App. at 636 (citations omitted).  

       Subsequent cases citing this alleged bar to self-serving statements failed to recognize it as 

prerule authority.  Pavlik, 2011 WL 6607312, at  *4.  The rules of evidence contain no self-

serving hearsay bar that excludes an otherwise admissible statement.  Pavlik, 2011 WL 6607312, 

at  *5;  see also State v. King, 71 Wn.2d 573, 577, 429 P.2d 914 (1967) ("self-serving" is 

shorthand way of saying statement is hearsay and does not fit recognized exception to hearsay 

rule).  Rather, admissibility must be addressed under the recognized exceptions to the hearsay 

rule.  Pavlik, 2011 WL 6607312, at *5.  

       Here, Newsome's statement about wanting to end his relationship with Johnson, as 

                                               16 

No. 40771-0-II

offered by Rasmussen, was arguably admissible under the state-of-mind exception to the hearsay 

rule.  ER 803(a)(3).  And had it been offered after Newsome testified and was cross-examined, it 

would have been admissible to rebut a claim of recent fabrication.  ER 801(d)(1)(ii).  

       Any error in excluding the statement was harmless, however, because there is no 

reasonable probability that the exclusion affected the verdict.  See Pavlik, 2011 WL 6607312, at 

*6.  Newsome testified about his thoughts concerning the relationship on the night of the 

altercation with Johnson.  Additional testimony about his desire to end their relationship would 

have done little to assist the defense in light of the evidence of the struggle, vehicle theft, and 

burglary.  

Sentencing Testimony

       Finally, Newsome contends that the trial court abused its discretion in allowing his 

probation officer to testify about his motivation to change.  More specifically, Newsome objects 

to the officer's opinion that he was "[e]xternally motivated.  He seemed to, in my opinion, just 

want to get through it for the court's benefit and I didn't really see a real desire to change."  RP 

(May 21, 2010) at 6.  Although Newsome acknowledges that the rules of evidence do not apply 

to sentencing hearings, he argues that the officer exceeded the proper scope of lay witness 

testimony by speculating about Newsome's subjective motivations.  See ER 1101(c)(3) (rules of 

evidence do not apply to sentencing); ER 701 (limiting opinion testimony from lay witnesses).  

       But Newsome did not object to this testimony or to the trial court's decision to allow the 

probation officer to testify, and he was given the opportunity to fully cross-examine the officer.  

Consequently, this claim of error is waived.  See State v. Coria, 146 Wn.2d 631, 641, 48 P.3d 980 

(2002) (untimely objection to evidence waived); see also RCW 9.94A.585 (standard range 

                                               17 

No. 40771-0-II

sentence cannot be appealed).  

                                               18 

No. 40771-0-II

       We reverse Newsome's first degree burglary conviction and remand for further 

proceedings in accordance with this opinion.  

       A majority of 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.

                                                 QUINN-BRINTNALL, J.
We concur:

ARMSTRONG, J.

WORSWICK, A.C.J.

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