* State Of Washington, Respondent V. Nicholas P. Bajardi, Appellant

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FILED
5/25/2018
Court of Appeals
Division I
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 77732-7-1
)
Respondent, )
)
v. )
)
NICHOLAS P. BAJARDI, ) ORDER GRANTING
) MOTION TO PUBLISH
Appellant. ) OPINION
)
Appellant filed a motion to publish the court's April 16, 2018 opinion.
Respondent has filed a response expressing no objection to the motion. Following
consideration of the motion, the panel has determined the motion should be
granted. Now, therefore, it is hereby
ORDERED that appellant's motion to publish is granted.
FOR THE PANEL:
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE 0 VI Cl
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STATE OF WASHINGTON, ) No. 77732-7-1 Su•
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) FILED: April 16,2018
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VERELLEN,J.—The State charged Nicholas Bajardi with violation of a no
contact order against Erin Roblin. The Thurston County Superior Court
admitted a certified copy of Roblin's driver's license as a self-authenticating
business or public record. Because the driver's license contains facts, not
conclusions involving the exercise of judgment or discretion or expression of
opinion, and the State presented the required documentation to prove the
license's authenticity, the trial court did not abuse its discretion.
Additionally, Bajardi challenges the sufficiency of the evidence
supporting his conviction for violating a no contact order. But viewed in a light
most favorable to the State, there was sufficient evidence that there was a valid
no contact order prohibiting him from having contact with Roblin, he knowingly
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No. 77732-7-1/2
contacted her, and at the time of contact with Roblin, he had twice been
convicted of violating a no contact order.
The trial court found Bajardi indigent Because nothing in this record
overcomes this presumption, we decline to award the State costs.
Therefore, we affirm.
FACTS
The Thurston County Superior Court issued a no contact order against
Nicholas Bajardi, protecting Erin Roblin, in November 2014. Bajardi had
previously been convicted of violating a no contact order.
On November 2, 2016, Officers Lett and Rodriguez were called to a
wooded area on report of a suspicious vehicle that might have been
trespassing. When the officers arrived, they heard both a male voice and a
female voice. The officers walked towards the vehicle, approaching it from
different angles. While Officer Rodriguez spoke with Bajardi, Officer Lett
stopped and talked to the woman in the van. Both officers testified that the
woman in the photograph on Roblin's driver's license was the same woman
they contacted on November 2, 2016.
After speaking with Roblin, the officers detained Bajardi for further
investigation. After being handcuffed, Bajardi told officers, "I wasn't talking to
2
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No. 77732-7-1/3
her."1 Officer Rodriguez confirmed that Bajardi had a Department of
Corrections warrant for escaping community custody.
The trial court admitted the driver's license over Bajardi's objection. After
a bench trial, Bajardi was found guilty of felony violation of a no contact order.
Bajardi appeals.
ANALYSIS
L Driver's License Admission
Bajardi contends the trial court abused its discretion by admitting a
certified copy of Roblin's driver's license into evidence.
We review a trial court's evidentiary decisions for abuse of discretion.2
The trial court's "decision to admit or exclude business records is given great
weight and will not be reversed unless there has been a manifest abuse of
discretion."3 "'Discretion is abused if it is exercised on untenable grounds or for
untenable reasons."4
Relevant evidence is "evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence."5 The
1 Report of Proceedings(Feb. 14, 2017) at 56.
2 State v. Stenson, 132 Wn.2d 668,701,940 P.2d 1239(1997).
3 State v. Ziegler, 114 Wn.2d 533, 538,789 P.2d 79(1990).
4 State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786(2007)(quoting
State v. Thanq, 145 Wn.2d 630,642,41 P.3d 1159(2002)).
5 ER 401.
3
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No. 77732-7-1/4
trial court "has wide discretion in balancing the probative value of the evidence
against its potentially prejudicial impact."6
In State v. Mares, Mares appealed his conviction for violating a no
contact order against Brittany Knopff.7 The State introduced a copy of Knopffs
driver' license to prove she was the person named in the order, This court
concluded the license was admissible as a public record,"and the custodian
who authenticated the copy provided no testimonial statements in doing so."9
The court reasoned
[b]usiness and public records are generally admissible absent
confrontation because, having been created for the administration
of an entity's affairs and not for the purpose of establishing or
proving some fact at trial, they are not testimoniali191
The certification here, like in Mares, attests to the authenticity of a public
record, and the trial court admitted the document as self-authenticating.
Officers Lett and Rodriguez both testified that the woman in the license photo
was the same woman that was In the vehicle when they arrested Bajardi. The
certified driver's license is relevant evidence that helped determine the person
in the no contact order was the same person at the scene when police arrested
Bajardi.
6 Stenson 132 Wn.2d at 702.
7 160 Wn. App. 558, 560, 248 P.3d 140(2011).
8 1d. at 561.
9 Id. at 565.
10 Id. at 564(emphasis added).
4
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No. 77732-7-1/5
In Bajardi's reply brief, he clarifies that he is not challenging the
authenticity of the driver's license, nor is he claiming his right to confrontation
was violated. Instead, Bajardi argues that it was inadmissible "because the
contents of the driver's license do not meet the definition of a 'public record'
under RCW 5.44.040.1'11 His narrow argument fails.
RCW 5.44.040 provides:
Copies of all records and documents on record or on file in the
offices of the various departments of the United States and of this
state or any other state or territory of the United States, when duly
certified by the respective officers having by law the custody
thereof, under their respective seals where such officers have
official seals, shall be admitted in evidence in the courts of this
state.[121
Our Supreme Court has observed:
"In order to be admissible, a report or document prepared by a
public official must contain facts and not conclusions involving the
exercise of judgment or discretion or the expression of opinion.
The subject matter must relate to facts which are ofa public
nature, it must be retained for the benefit of the public and there
must be express statutory authority to compile the report:1131
A driver's license is a document prepared by a public official and
contains facts of a public nature, including the name and photograph of the
license holder. A drivers license does not contain conclusions involving the
11 Reply Br. at 7.
12(Emphasis added.)
13 State v. Monson, 113 Wn.2d 833,839,784 P.2d 485(1989)(emphasis
added)(quoting Steel v. Johnson,9 Wn.2d 347, 358, 115 P.2d 145 (1941)).
5
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No. 77732-7-1/6
exercise of judgment or discretion or the expression of opinion.14 Inconsistent
with his acknowledgment that he does not challenge the authenticity of the
driver's license," he suggests the State failed to present evidence that the
public employee who entered the information into the Department of Licensing
database "could authenticate the accuracy of the information."16 But because
the driver's license itself is properly authenticated, it is admissible as a public
document.
Bajardi relies heavily on Tire Towne, Inc. v. G & L Service Co., where
Division Two of this court held an affidavit filed with the county assessor
containing a list of property identified by the taxpayer should not have been
admitted as a public record, in part because the deputy assessor who certified
the record had neither prepared the document nor had firsthand knowledge,
thus, the document lacked proper authentication.17 Additionally, the tax filing
was offered for the purpose of proving the alleged claim that the taxpayer
owned the property listed and was therefore hearsay. But here, the driver's
license was used solely for the purpose of allowing deputies to identify the
woman at the scene. A photograph maintained as part of a public record is
14 id.
15 Reply Br. at 2("Mr. Bajardi is not challenging the authenticity of[the
driver's license], nor is he claiming his right to confront the witnesses against
him was violated.").
16 Id. at 11-12.
17 10 Wn. App. 184, 190, 518 P.2d 240(1973).
6
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No. 77732-7-1/7
properly authenticated and admitted as a public record when certified by an
official of the agency maintaining that records's
We conclude the trial court did not abuse its discretion in admitting the
certified copy of a driver's license as a self-authenticating public record.
Sufficiency of the Evidence
Bajardi challenges the sufficiency of the evidence supporting his
conviction.
Evidence is sufficient to support a conviction if, viewing the evidence in
the light most favorable to the State, it permits any rational trier of fact to find
the essential elements of the crime beyond a reasonable doubt.19 "A claim of
Insufficiency admits the truth of the State's evidence and all inferences that
reasonably can be drawn therefrom."2° "In determining the sufficiency of the
evidence, circumstantial evidence is not to be considered any less reliable than
direct evidence. "Furthermore, the specific criminal intent of the accused may
be inferred from the conduct where it is plainly indicated as a matter of logical
18 See generally State v. Courser, 199 Wash. 559,92 P.2d 264(1939);
State v. Kelly, 52 Wn.2d 676, 328 P.2d 362(1958); State v. Lee, 87 Wn.2d 932,
558 P.2d 236(1976)(photos maintained by the prison properly admitted as
public record upon certification by prison official).
19 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992).
20 Id.
7
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No. 77732-7-1/8
probability."21 "Credibility determinations are for the trier of fact and cannot be
reviewed on appeal."22
Violation of a no contact order "is a class C felony if the offender has at
least two previous convictions for violating" a no contact order.23 Bajardi
concedes the State presented sufficient evidence of prior violations but argues
the State presented "no evidence" that the woman at the scene was the same
woman described in the no contact order.24
Here, police officers identified the woman by the photo in her drivers
license to establish the woman from the scene was the same woman in the no
contact order. The trial court found the officers credible. The information from
the no contact order matched the information in Roblin's driver's license. The
trial court reviewed and weighed the evidence presented in its oral and written
findings of fact. Viewing this evidence in the light most favorable to the State,
any rational trier of fact could have found Bajardi guilty of violating the no
contact order against Roblin.
We conclude the State presented sufficient evidence to convict Bajardi of
violating the no contact order.
21 State v. Delmarter, 94 Wn.2d 634,638,618 P.2d 99(1980).
22 State v. Camarillo, 115 Wn.2d 60,71, 794 P.2d 850(1990).
23 RCW 26.50.110(5).
24 Appellant's Br. at 17.
8
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No. 77732-7-1/9
Appellate Costs
Bajardi asks this court to deny the State its costs on appeal.
RCW 10.73.160(1) gives appellate courts discretion to decline to impose
appellate costs on appea1.25 Under State v. Sinclair, there is a presumption that
indigency continues unless the record shows otherwise.26
Here, the trial court found that Bajardi is indigent. Nothing in this record
overcomes this presumption. Thus, an award of costs would be inappropriate.
We affirm.
WE CONCUR:
--171aSQ y Cl-
26 State v. Nolan, 141 Wn.2d 620,629,8 P.3d 300(2000).
26 192 Wn. App. 380, 392-93, 367 P.3d 612, review denied, 185 Wn.2d
1034(2016).
9
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