Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, No. 87986-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JACOB DEAN LITTLE, Appellant. FELDMAN, J. — Jacob Dean Little appeals his convictions for second degree murder and first degree assault, both with firearm enhancements. These convictions stem from an altercation at a car meet in a Renton parking lot in the early morning hours of August 30, 2020, when Little shot and killed D’Andre Flynn and shot and injured Enrique Reyes. Little argues (a) the trial court abused its discretion by admitting evidence of his immediate trip to Oregon as flight evidence to show his consciousness of guilt, (b) the trial court erred by failing to recognize its authority under RCW 9.94A.535(1)(g) to impose concurrent sentences for multiple serious violent offenses, and (c) the trial court’s judicial determination that his federal conviction was comparable to a Washington felony violated his right to a jury trial and due process. We affirm. I On August 29, 2020, Cedric Sanders drove Little and two other individuals to various car meets in Washington. The car meets moved from place to place No. 87986-3-I throughout the night. Earlier that night while the car meet was in Tukwila, a fight had broken out during which Flynn punched an unknown male. The car meet relocated to a parking lot in Renton where Little, Sanders, and the two other individuals arrived in a Jeep around 1:53 a.m. on August 30. Little was armed with a Glock 23 handgun with .40 caliber bullets and another handgun with .45 caliber bullets, and Sanders was also armed with a handgun. When Little and Sanders arrived at the Renton parking lot, several individuals, including Flynn, were already present, and a fight had already broken out. Little and Sanders exited the Jeep and asked the individuals at the car meet what was going on. The individuals responded that Little and Sanders should mind their own business. This exchange quickly escalated into an argument between Little and Flynn who each moved in close to one another, threatened each other, and pulled out firearms and pointed them at each other’s torsos. Sanders stepped between Little and Flynn and tried to de-escalate the situation, saying “We don’t need to beef.” Little pushed Sanders away, and Sanders walked back to the Jeep to separate himself from the situation and avoid being shot. After Sanders walked away, Flynn also began walking away from Little. Little then fired six shots from the firearm in his left hand into the air. Flynn also shot his firearm into the air several times. Sanders, believing that Flynn and Little had resolved their conflict and were firing into the air “for funsies,” also shot his firearm into the air. Flynn then walked away from Little with his firearm pointed toward the ground and called him a “bitch.” Little responded by shooting his firearm at Flynn who was then around 28-32 feet away from Little. But the bullet missed -2- No. 87986-3-I Flynn and instead hit Enrique Reyes who was sitting in a vehicle parked behind Flynn. Immediately after shooting Reyes, Little fired a second shot that struck Flynn in the lower left side of his back. The bullet traveled through Flynn’s body, striking his aorta, gallbladder, and liver and exited through his right lower chest. After Little shot Flynn, Flynn began staggering and running away from Little, and everyone at the car meet dispersed. Little collected the spent bullet shell casings from the ground and re-entered the Jeep. Sanders began driving out of the parking lot, but Little demanded that he stop the vehicle. Sanders complied when Little pointed his firearm at Sanders. Little fired an assault rifle out of the passenger side window of the Jeep before switching seats with Sanders and driving away. Little then drove the Jeep to a car wash where he and Sanders cleaned the inside of the vehicle. After dropping off the other individuals who were in the vehicle, Little abandoned the Jeep in Snohomish County. Later that day, Little and Sanders drove with their girlfriends to Oregon, where they remained for several days. Flynn was pronounced dead at Valley Medical Center at 2:17 a.m. on August 30. Reyes survived the shooting, and surgeons were able to remove the bullet lodged in his shoulder. Law enforcement then performed forensic testing on the fired bullet cartridge and concluded that it was consistent with a .40 caliber Smith & Wesson or a 10mm Auto and could have been fired from a number of different models of semi-automatic pistols, including a Glock 23 firearm. The State charged Little with second degree murder and first degree assault, both with firearm enhancements. At trial, Little testified that he discharged -3- No. 87986-3-I his firearm in Flynn’s direction in self-defense. The jury rejected Little’s self- defense claim, convicted him as charged, and returned special verdicts finding that the charged offenses were committed with a firearm. At sentencing, the State argued Little’s 2022 federal possession of a stolen firearm conviction was comparable to the crime of possessing a stolen firearm under RCW 9A.56.310. The trial court agreed with the State, determined Little’s federal conviction was comparable to RCW 9A.56.310, calculated his offender score as one, and sentenced him to a total of 356 months of incarceration. This timely appeal followed. II A. Admissibility of Flight Evidence To Show Consciousness of Guilt Little argues the trial court abused its discretion by admitting evidence of his trip to Oregon as flight evidence to show his consciousness of guilt. We disagree. During pre-trial motions, Little sought to exclude any reference to his trip to Oregon. Citing ER 401 and 403, Little requested the trial court “decline to find that this constitutes flight or ‘consciousness of guilt.’” Little proffered that he, Sanders, and their girlfriends took a trip to Oregon in the days following the shooting and engaged in “tourist activities, such as the submarine tours.” Little claimed there was no effort to change their appearances, hide from sight, or engage in other behaviors that would demonstrate consciousness of guilt and that they returned to Washington after a few days. Accordingly, he claimed his trip to Oregon was not probative to show his consciousness of guilt and thus “irrelevant under ER 401.” The State, in turn, asserted there was no evidence Little and Sanders’s trip to -4- No. 87986-3-I Oregon had been planned in advance of the shooting and argued the trip was one step in a continuous series of actions following the shooting, starting with Little cleaning and discarding the Jeep immediately after the shooting and then driving to Oregon where he remained for several days. Following the parties’ arguments, the trial court denied Little’s motion. Addressing Little’s argument that the trip to Oregon did not show consciousness of guilt and was therefore “irrelevant under ER 401,” the court ruled as follows: The motion is denied. I think that it does, in fact, show what happened immediately, in a reasonable period after this, and it will be up to the jury to determine whether or not this is something that should be considered in their determination. I think that it’s an artificial distinction to break up the cleaning up of the car and exchange of the vehicle, and the statements by the witness who was with Mr. Little during the incident and who was with Mr. Little during the trip to Oregon. I think it’s probably an artificial distinction, so I’m not going to draw that one, and so I am not going to preclude a reference to the trip the very next day to Oregon after the incident. Thus, the court admitted the purported flight evidence and permitted the jury to determine whether Little’s trip to Oregon demonstrated his consciousness of guilt. Little argues the trial court abused its discretion by admitting this evidence without first analyzing it under ER 404(b). The State, in turn, argues Little only objected to the evidence’s admissibility on relevance grounds and thereby failed to preserve any asserted error under ER 404(b). As the State correctly notes, “A party may assign evidentiary error on appeal only on a specific ground made at trial.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007); see also State v. Yusuf, 21 Wn. App. 2d 960, 973-74, 512 P.3d 915 (2022) (holding that error under ER 404(b) was not preserved where “ER 404(b) was not raised by either -5- No. 87986-3-I party or the court as a basis to introduce this evidence”). Because Little did not object to this evidence on ER 404(b) grounds, his argument regarding ER 404(b) is unpreserved and not reviewable under RAP 2.5(a). Nor does Little argue that this asserted error is a manifest error affecting a constitutional right and can therefore be raised for the first time on appeal. Applying RAP 2.5(a), Washington courts have likewise held, “An error under ER 404(b) is nonconstitutional in nature.” State v. Anene, 149 Wn. App. 944, 956, 205 P.3d 992 (2009) (quoting State v. White, 43 Wn. App. 580, 587, 718 P.2d 841 (1986)). We therefore decline to reach the merits of this argument. 1 Turning to Little’s remaining arguments as to admissibility under ER 401 and 403, evidence is relevant and admissible under ER 401 if it has “any tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence. ER 401; State v. Luvene, 127 Wn.2d 690, 706, 903 P.2d 960 (1995). ER 403 instructs that relevant evidence may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. ER 403. We review a trial court’s rulings under ER 401 and ER 403 for abuse of discretion, which occurs when the trial court’s decision is manifestly unreasonable or based on untenable reasons or grounds. Luvene, 127 Wn.2d at 706-07; State v. Slater, 197 Wn.2d 660, 674, 486 P.3d 873 (2021). 1 In his reply brief, Little asserts that he separately moved to exclude “any reference to prior crimes, wrongs, or acts committed by the Defendant pursuant to ER 404(b).” But in so moving, Little did not identify the trip to Oregon as such a prior act. As this motion is untethered to the evidence challenged on appeal, it is insufficient to preserve the specific argument Little now asserts. -6- No. 87986-3-I The trial court did not abuse its discretion by admitting this evidence on relevance grounds. Evidence of a defendant’s flight may be admissible to show consciousness of guilt. Slater, 197 Wn.2d at 667-68. When such evidence is proffered, the trial court “must first decide whether or not the proposed evidence amounts to a reasonable inference of flight that is more than mere speculation and supports a consciousness of guilt.” Id. at 674. For such evidence to be admissible, the circumstances or inference of flight must be substantial and real. It may not be speculative, conjectural, or fanciful. In other words, the evidence or circumstances introduced and giving rise to the contention of flight must be substantial and sufficient to create a reasonable and substantive inference that the defendant’s departure from the scene of difficulty was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution. Pyramiding vague inference upon vague inference will not supplant the absence of basic facts or circumstances from which the essential inference of an actual flight must be drawn. Id. at 668 (quoting State v. Bruton, 66 Wn.2d 111, 112-13, 401 P.2d 340 (1965)) (emphasis omitted). Evidence of flight “tends to be only marginally probative as to the ultimate issue of guilt or innocence.” State v. Freeburg, 105 Wn. App. 492, 498, 20 P.3d 984 (2001). Accordingly, before admitting flight evidence the court must determine its probative value by examining “the degree of confidence with which four inferences can be drawn”: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Slater, 197 Wn.2d at 668-69 (quoting Freeburg, 105 Wn. App. at 498). If the trial court determines the evidence does support a consciousness of guilt inference, it may allow the jury to consider the evidence as “‘a circumstance, along with other -7- No. 87986-3-I circumstances of the case, in determining guilt or innocence.’” Id. at 668 (quoting Bruton, 66 Wn.2d at 112). We review a trial court’s decision to admit or exclude evidence of flight for abuse of discretion. Id. at 674. Here, in determining the probative value of this evidence by analyzing the four inferences listed above, the trial court reasonably concluded Little’s behavior “show[ed] what happened immediately . . . after this” and was therefore probative of flight and of consciousness of guilt concerning the crimes charged. After shooting Flynn and Reyes in the early morning hours of August 30, Little left the Renton parking lot and cleaned and abandoned the Jeep that was associated with the shooting. Later that same day, Little, Sanders, and their girlfriends left for Oregon on an impromptu trip. Contrary to Little’s objection below, the evidence was relevant under ER 401 as it had some “tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.” ER 401; Luvene, 127 Wn.2d at 706. It was properly admitted for the jury to consider as “a circumstance, along with other circumstances of the case, in determining guilt or innocence.” Bruton, 66 Wn.2d at 112. Citing ER 403, Little argues that even if the above evidence is relevant and admissible under ER 401, the trial court abused its discretion because it never balanced the probative value of the evidence of the Oregon trip against the danger of unfair prejudice under ER 403. But although Little cited ER 403 in passing in his motion in limine, he never argued any such balancing was required. At oral argument regarding this motion, Little’s counsel likewise stated, “Either it rises to -8- No. 87986-3-I the level of consciousness of guilt or it doesn’t. It’s Defense’s position that it doesn’t.” Thus, Little effectively abandoned the ER 403 balancing argument below and focused instead on whether the evidence was irrelevant and therefore inadmissible under ER 401. 2 In any event, any error in admitting this evidence was harmless. Under the nonconstitutional harmless error standard, Little is not entitled to a new trial unless he shows that “‘within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’” State v. Wasuge, 5 Wn.3d 877, 890, 582 P.3d 320 (2026) (quoting State v. Goggin, 185 Wn. App. 59, 69, 339 P.3d 983 (2014)). “‘The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole.’” Id. (quoting State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997)). Applying this test here, there was overwhelming evidence by which the jury could convict Little of second degree murder and first degree assault, including video evidence, testimony regarding firearms and ballistics evidence, and the testimony of other witnesses present during the shooting. Additionally, Little’s trip to Oregon was of minor significance in the context of the entire trial, as demonstrated by the State’s minimal reference to it during closing argument: the only time the State mentioned Little’s trip in its closing was to clarify that the attorneys’ statements were not evidence and that defense counsel’s statement 2 Cf. also State v. Reedy, 26 Wn. App. 2d 379, 395, 527 P.3d 156 (2023) (quoting Joy v. Dep’t of Labor & Indus., 170 Wn. App. 614, 629, 285 P.3d 187 (2012)) (“‘passing treatment of an issue or lack of reasoned argument are insufficient to merit judicial consideration’”). -9- No. 87986-3-I during opening that Little turned himself in after returning from Oregon was not supported by the evidence presented at trial. Thus, Little has failed to satisfy his burden to establish prejudice under the test for nonconstitutional harmless error and is not entitled to a new trial on this basis. B. Authority To Impose Concurrent Sentences Little argues the trial court failed to recognize its authority under RCW 9.94A.535(1)(g) to impose concurrent sentences for multiple serious violence offenses and this failure constitutes a fundamental defect in his sentence, necessitating resentencing. We disagree. Little’s convictions for second degree murder and first degree assault are classified as serious violent offenses under RCW 9.94A.030(47) and as such “shall be served consecutively to each other.” RCW 9.94A.589(1)(b). Despite this statutory mandate, trial courts have the authority to order an exceptional sentence that departs downward from the standard range and/or runs multiple sentences concurrently if “[t]he operation of the multiple offense policy of RCW 9.94A.589 results in a presumptive sentence that is clearly excessive in light of the purpose of this chapter, as expressed in RCW 9.94A.010.” RCW 9.94A.535(1)(g); State v. Graham, 181 Wn.2d 878, 887, 337 P.3d 319 (2014). Trial courts have this authority because “concurrent sentences are sometimes necessary to remedy injustices caused by the mechanical application of grids and ranges.” Graham, 181 Wn.2d at 886. Trial courts must meaningfully consider a request to make a discretionary sentencing decision in accordance with the applicable law. State v. McFarland, - 10 - No. 87986-3-I 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). “While no defendant is entitled to challenge a sentence within the standard range, this rule does not preclude a defendant from challenging on appeal the underlying legal determinations by which the sentencing court reaches its decision; every defendant is entitled to have an exceptional sentence actually considered.” Id. Accordingly, a trial court errs when “it operates under the ‘mistaken belief that it did not have the discretion to impose a mitigated exceptional sentence for which [a defendant] may have been eligible.’” Id. (quoting In re Pers. Restraint of Mulholland, 161 Wn.2d 322, 333, 166 P.3d 677 (2007)). At sentencing, Little requested an exceptional downward sentence of 120 months based on failed self-defense pursuant to RCW 9.94A.535(1)(a) and his youthfulness pursuant to State v. O’Dell, 183 Wn.2d 680, 358 P.3d 359 (2015). The State opposed Little’s requested exceptional sentence and sought a standard range sentence totaling 384 months. The State’s position, consistent with the general rule under RCW 9.94A.589(1)(b), was that the sentences for the first degree assault and second degree murder must run consecutively to each other because they were both serious violent offenses under RCW 9.94A.030(47). Although the trial court carefully considered Little’s arguments, it largely agreed with the State. It first examined whether Little “ha[d] shown substantial and compelling reasons for a sentence below the standard range.” The court concluded Little was not a youthful offender because he was 25 years old at the time of the shooting. The court acknowledged that the record showed Little’s drug and alcohol use began when he was about 10 years old and credited a social - 11 - No. 87986-3-I worker’s report submitted by Little that detailed his traumatic childhood. The court commented that the record showed some “violent or aggressive tendencies on the part of the deceased,” but stated that the jury heard and rejected Little’s claim of self-defense. The court concluded, So, having looked at the pros and the cons, having looked at not one but two offenses, having looked at the issues before us in terms of the social and psychosocial issues, the Court is going to impose for the Murder in the Second Degree, 134 months plus the 60 for the firearm enhancement. For the Assault First Degree, the Court is going to impose 102 months, along with the 60 months for the firearm enhancements. Because these have to be served consecutively, this amounts to about 29.66 years for these two offenses, one of which was fatal. And the Court believes that the credit for time in federal custody should be granted. When the Court looks at 9.94[A].010, which talks about the purposes of the Sentencing Reform Act, we are looking at whether or not the punishment is proportionate, whether or not this will promote respect for the law. I believe that this amount of time that the Court's talked about, which is essentially 30 years, would be commensurate. I think it would. Looking at 9.94[A].010, protect the public, as well as offer Mr. Little an opportunity to improve himself. Having rejected Little’s arguments that the court should impose a sentence below the standard range, the court sentenced him to consecutive sentences totaling 356 months of incarceration. Read in context, the trial court’s ruling confirms it did not mistakenly believe it lacked authority to impose concurrent sentences as a type of exceptional sentence. Rather, the court’s ruling demonstrates it considered the appropriate sentence in light of the purposes of the SRA, which is precisely what RCW 9.94A.535(1)(g) contemplates. The court then determined that a sentence of 356 months was appropriate and commensurate under the circumstances. The court had already considered Little’s arguments regarding mitigating circumstances, but - 12 - No. 87986-3-I concluded those circumstances were insufficient to warrant an exceptional sentence, including under RCW 9.94A.535(1)(g), in light of the purposes of the SRA. Thus, the court’s ruling that “these have to be served consecutively” was legally correct as it had already considered and rejected Little’s request for an exceptional sentence and determined that consecutive sentences were appropriate. Despite this, Little relies on Mulholland, McFarland, and Graham to argue resentencing is warranted. But the trial court in Mulholland expressed discomfort with the sentence imposed and explicitly stated, “I don’t have the discretion to have the sentences in my view run at the same time.” 161 Wn.2d at 334. The trial court in McFarland likewise “indicated some discomfort with his apparent lack of discretion and even commented that McFarland’s standard range sentence [for his convictions for first degree burglary, several counts of theft of a firearm, and three counts of unlawful possession of a firearm] was equivalent to that imposed for second degree murder.” 189 Wn.2d at 58-59. Similarly, the trial court in Graham stated, “I don’t agree with this sentence. I don’t agree with it . . . my hands are tied.” 181 Wn.2d at 881. By contrast here, the trial court expressed no similar discomfort or reservations with the sentence imposed. Indeed, it affirmatively stated, “this amount of time . . . would be commensurate” after considering the sentence it imposed in light of the purposes of the SRA. On this record, remand for resentencing is not warranted. C. Comparability Analysis - 13 - No. 87986-3-I In 2022, Little pled guilty to one count of possession of a stolen firearm in violation of 18 U.S.C. § 922(j). In its presentencing memorandum in the instant case, the State argued Little’s federal possession of a stolen firearm conviction was comparable to the crime of possessing a stolen firearm under RCW 9A.56.310. At sentencing, Little did not stipulate to the comparability of his federal conviction to RCW 9A.56.310, and defense counsel stated, “just to preserv[e] potential issues for appeal, we would note that we would have a question pertaining to comparability in relation to a federal charge versus a state charge under these particular circumstances.” Defense counsel concluded by stating he would “leave it to the Court to make the analysis in relation to whether or not it counts.” The trial court did so and determined that Little’s federal conviction was comparable with RCW 9A.56.310. This determination by the trial court, Little claims, violated his right to a jury trial and due process under Erlinger v. United States, 602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024). This court has already rejected Little’s argument. See State v. Anderson, 31 Wn. App. 2d 668, 681, 552 P.3d 803 (2024) (“Erlinger’s holding is limited to resolving ACCA’s occasions inquiry” and does not overrule well-established Washington precedent); State v. Frieday, 33 Wn. App. 2d 719, 746-47, 565 P.3d 139 (2025) (“Erlinger does not overrule our state’s precedent that comparability is not required to be decided by a jury.”). Our rejection of this argument was based on binding Washington Supreme Court precedent that the comparability of a foreign conviction to a Washington criminal statute need not be determined by a jury. See, e.g., State v. Wheeler, 145 Wn.2d 116, 34 P.3d 799 (2001); State v. - 14 - No. 87986-3-I Thiefault, 160 Wn.2d 409, 158 P.3d 580 (2007). We recently confirmed Anderson’s holding that Erlinger does not overrule our state’s well-established precedent in State v. Dugan, 36 Wn. App. 2d 765, 587 P.3d 487 (2026). Because Little advances no novel theory as to why this court’s analysis in Anderson, Frieday, and Dugan is incorrect, we decline to depart from those opinions. Affirmed. WE CONCUR: - 15 -