State Of Washington, Respondent V. John Peterson, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50455-3-II
Respondent,
v.
JOHN ARTHUR PETERSON, UNPUBLISHED OPINION
Appellant.
LEE, J. — John A. Peterson appeals his conviction for conducting the business of selling
cigarettes without a license. He contends evidentiary error warrants reversal of his conviction.
We affirm.
FACTS
Robert Raveica, a Washington State Liquor and Cannabis Board enforcement officer, was
searching Craigslist advertisements for offers to sell cigarettes. Raveica came across an
advertisement offering to sell four cartons of cigarettes. The cigarettes did not have a Washington
tax stamp; rather, they had stickers with European language on them. Raveica contacted the seller
without identifying himself as an enforcement officer. The two exchanged text messages, and they
arranged a time and place to purchase the cigarettes.
Upon arriving at the agreed upon address, Raveica observed a man, later identified as
Peterson, walking up the street with a backpack. Raveica identified himself as the buyer to
Peterson.
Filed
Washington State
Court of Appeals
Division Two
February 6, 2019

No. 50455-3-II
2
Peterson unzipped his backpack and produced the cigarettes. Raveica gave Peterson
money for the cigarettes. After the transaction was complete, Raveica identified himself as an
enforcement officer. Peterson “apologize[d]” and told Raveica that he “did not know it was
illegal.” Verbatim Report of Proceedings (VRP) (May 16, 2017) at 167.
The State charged Peterson with conducting the business of selling cigarettes without a
license contrary to RCW 82.24.500. Before trial, Peterson objected to the State introducing a
printout of the text messages allegedly between Peterson and Raveica to arrange the sale. Peterson
argued that the messages were inadmissible hearsay and lacked foundation. The trial court denied
the motion to exclude the evidence, stating that the legal standard was whether the State could
“make a prima facie case that” the texts were “attributable to the defendant.” VRP (May 16, 2017)
at 93. The court then declared, “I think the evidence rises to that level, so I’m not going to exclude
it.” Id.
Peterson also objected to Raveica testifying about the contents of the Craigslist
advertisement as inadmissible hearsay because the State did not offer the actual advertisement.
Peterson further argued that testimony about the advertisement would not be the best evidence.
The trial court allowed the testimony, stating “I don’t think it’s hearsay. I am going to let it in.”
VRP (May 16, 2017) at 87.
Peterson testified in his defense. He testified that he listed the cigarettes for sale on
Craigslist. He further testified that Raveica contacted him, and they arranged to meet so Raveica
could purchase the cigarettes. Peterson admitted he did not have a license to sell cigarettes. As a
defense, he argued that he did not know it was illegal to sell the cigarettes.
The jury found Peterson guilty as charged. Peterson appeals.

No. 50455-3-II
3
ARGUMENT
Peterson argues his conviction should be reversed because the Craigslist advertisement is
inadmissible hearsay and violates the best evidence rule. He also argues the printout of the text
messages is inadmissible hearsay. We disagree.
A. LEGAL PRINCIPLES
We review a trial court’s evidentiary rulings for an abuse of discretion. State v. Grier, 168
Wn. App. 635, 644, 278 P.3d 225 (2012). The trial court abuses its discretion when it exercises
its discretion on untenable grounds or for untenable reasons. Id.
Because the evidentiary errors alleged by Peterson are not of constitutional magnitude, the
nonconstitutional harmless error standard applies. State v. Gunderson, 181 Wn.2d 916, 926, 337
P.3d 1090 (2014). “This requires us to decide whether ‘within reasonable probabilities, had the
error not occurred, the outcome of the trial would have been materially affected.’ ” Id (internal
quotation marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
“ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” ER 801(c). Hearsay is
not admissible except as otherwise provided by the rules of evidence. ER 802.
The best evidence rule requires that “[t]o prove the content of a writing, recording, or
photograph, the original writing, recording, or photograph is required.” ER 1002. The original is
not required, and other evidence is admissible, if “[t]he writing, recording, or photograph is not
closely related to a controlling issue.” ER 1004(d).

No. 50455-3-II
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B. NO REVERSIBLE ERROR
Here, there was no dispute over whether Peterson placed the Craigslist advertisement to
sell the cigarettes or whether he communicated with Raveica to sell the cigarettes. The evidence
went to explain how the officer and Peterson came into contact with each other. For this reason,
evidence regarding the Craigslist advertisement and text messages did not go to prove the truth of
the matter asserted and, thus, would not be hearsay.
Similarly, testimony regarding the Craigslist advertisement would not violate the best
evidence rule because it is not closely related to a controlling issue. Peterson’s defense was that
he did not realize selling the cigarettes was illegal. Like the text messages, evidence of the
Craigslist advertisement went to how Raveica and Peterson came into contact with one another.
This was not a controlling issue.
Based on the above, the trial court had tenable grounds to allow testimony regarding the
Craigslist advertisement and the printout of the text messages. Therefore, the trial court did not
abuse its discretion in admitting this evidence.
Moreover, even assuming the trial court abused its discretion in its evidentiary rulings, any
error was harmless. Peterson testified that he listed the cigarettes for sale on Craigslist. He further
testified that Raveica contacted him, and they arranged a time and place to meet so Raveica could
purchase the cigarettes. Peterson admitted he did not have a license to sell cigarettes. The fact
that Peterson placed the advertisement on Craigslist, communicated with Raveica to purchase the
cigarettes, and ultimately sold the cigarettes to Raveica without a license was uncontested. Thus,
even if Raveica’s testimony regarding the Craigslist advertisement and the printout of the text

No. 50455-3-II
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messages was wrongly admitted, it did not materially affect the outcome of the trial. For this
reason any error would be harmless. Accordingly, Peterson fails to establish reversible error.
We affirm.
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.
Lee, J.
We concur:
Johanson, J.
Maxa, C.J.