Opinion
No. 24075-4-III.
November 14, 2006.
Appeal from a judgment of the Superior Court for Benton County, No. 04-1-00858-5, Robert G. Swisher, J., entered April 22, 2005.
Counsel for Appellant(s), Maurina A Ladich, Attorney at Law, Spokane, WA.
Counsel for Respondent(s), Andrew Kelvin Miller, Benton County Prosecutors Office, Kennewick, WA.
Mariah A Wagar, Miller, Mertens, Spanner Comfort PLLC, Kennewick, WA.
Affirmed by unpublished opinion per Kulik, J., concurred in by Sweeney, C.J., and Schultheis, J.
Charles Miller was convicted of second degree theft. On appeal, he asserts the trial court erred by allowing a law enforcement officer to testify that the person on a surveillance tape was Mr. Miller. Mr. Miller also claims that he received ineffective assistance of counsel, that the videotape evidence at trial was impermissibly suggestive, and that the evidence was insufficient to support his conviction. Finally, Mr. Miller asserts that the cumulative errors in his trial warrant reversal. Because we find these contentions to be without merit, we affirm Mr. Miller's judgment and sentence.
FACTS
On Sunday, April 4, 2004, Richard Lockwood's vehicle was burglarized in a church parking lot while Mr. Lockwood was inside attending services. Mary Crabb was in the church parking lot when she saw a car pull in and park directly in front of her car. Ms. Crabb thought this was odd because church services were already well underway.
While Ms. Crabb watched, a man got out of his car and walked around the parking lot. The man took two helmets off of motorcycles and placed them in his own car. She was afraid that the man might see her or attempt to break into her vehicle, so Ms. Crabb locked her car door and slouched down in her seat. Ms. Crabb estimated that she watched the man take items from vehicles for approximately 20 minutes.
When Mr. Lockwood came out of the church, he noticed that some of the items in the backseat of his truck were missing. Mr. Lockwood estimated the value of the stolen items at $900. According to Mr. Lockwood, everything in his truck was taken including his tool boxes and coats.
That same day, Detective Jay Compton received a report from an employee of a sporting goods store about an individual who had been prowling vehicles in the store's parking lot. Detective Compton went to the store and was shown a surveillance video of the prowler. The detective took a copy of the surveillance video and showed it to other officers in the hope that one of them could identify the person in the video.
Law enforcement showed Ms. Crabb the surveillance video. The officers told Ms. Crabb that the person in the video was the "Outdoors Man." Report of Proceedings (RP) (April 1, 2005) at 10. Ms. Crabb identified the person in the videotape as being the same man she saw in the church parking lot. This identification was based partly on the fact that the person in the video was wearing identical clothes and had the same car as the man Ms. Crabb had observed.
However, Ms. Crabb did not identify Mr. Miller as the person in either the parking lot or the surveillance video. The law enforcement officer who had arrested Mr. Miller on a different incident did identify Mr. Miller as the prowler in the surveillance video.
The jury found Mr. Miller guilty of second degree theft. Mr. Miller moved for arrest of judgment and sentence based on insufficiency of the evidence. However, Mr. Miller changed his mind and decided to withdraw his request for arrest of judgment. Mr. Miller was sentenced to 25 months' incarceration.
ANALYSIS Identification testimony
The admission of relevant evidence is within the discretion of the trial court and this court will not reverse such admission absent a manifest abuse of discretion. State v. Hardy, 76 Wn. App. 188, 192, 884 P.2d 8 (1994). A trial court abuses its discretion when it exercises its discretion based on untenable grounds or reasons. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).
Lay witnesses may offer opinion testimony if the testimony is rationally based on the perception of the witness and helpful to the determination of a fact at issue. See ER 701. Here, a law enforcement officer identified Mr. Miller as the individual in the surveillance tape based on the officer's past interactions with Mr. Miller.
The jurors viewed the surveillance tape for themselves at trial. As the finder of fact, the jury was permitted to disagree with the officer's conclusion that Mr. Miller was the individual from the surveillance video. See Hardy, 76 Wn. App. at 191.
Ineffective assistance of counsel
Mr. Miller asserts that he received ineffective assistance because his defense counsel failed to seek to exclude the surveillance videotape.
To demonstrate ineffective assistance of counsel, a defendant must prove two things: (1) that defense counsel representation was deficient; and (2) that this deficient representation prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). "If either part of the test is not satisfied, the inquiry need go no further." State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
This court engages in a strong presumption that counsel's representation was effective. State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286 (1995). Generally, a defendant challenging counsel's decision not to seek suppression of evidence at trial must prove the absence of legitimate or strategic reasons to support this decision. McFarland, 127 Wn.2d at 336. In addition, the defendant must show both that the evidence would have been suppressed and that there was a prejudicial effect from the admission of the evidence. Hendrickson, 129 Wn.2d at 79-80.
The videotape was admitted in order to show identity. Evidence of an uncharged crime may be relevant if that evidence has any tendency to prove the identity of the perpetrator of the charged crime. State v. Herzog, 73 Wn. App. 34, 43, 867 P.2d 648 (1994). In this case, the videotape showed identity because the person in the videotape was identified as the same person who committed the thefts in the church parking lot. A law enforcement officer later identified the individual in the surveillance video as Mr. Miller. These two pieces of testimony, when taken together, identify Mr. Miller as the perpetrator of the church parking lot theft as well.
However, evidence of an uncharged crime is not necessarily admissible, even if it is relevant to the issue of identity. Id. at 48. The trial court also must determine whether the probative value of the evidence outweighs its potential for prejudice. Id. The determination of whether the probative value of evidence outweighs its potential for prejudice is left to the sound discretion of the trial court. State v. Stanton, 68 Wn. App. 855, 861, 845 P.2d 1365 (1993).
Here, the videotape evidence was not used as propensity evidence, but was merely used in order to establish identity. As such, Mr. Miller cannot establish that the trial court would have found that the potential for prejudice of this evidence would have outweighed its probative value. Because Mr. Miller cannot prove that the evidence would have been excluded, he also cannot establish that the failure of his trial counsel to try to have the evidence excluded constituted ineffective assistance of counsel.
Suggestive identification
Impermissibly suggestive identification procedures may violate a defendant's right to due process if, under the totality of the circumstances, the procedures gave rise to a very substantial likelihood of irreparable misidentification. State v. McDonald, 40 Wn. App. 743, 745-46, 700 P.2d 327 (1985). The defendant bears the burden of establishing both that the identification procedures were impermissibly suggestive and that this suggestiveness created a substantial risk of irreparable misidentification. State v. Kinard, 109 Wn. App. 428, 433, 36 P.3d 573 (2001).
The presentation of a single photograph is impermissibly suggestive as a matter of law. State v. Maupin, 63 Wn. App. 887, 896, 822 P.2d 355 (1992). However, even assuming that the surveillance video was suggestive we must also review the totality of the circumstances in order to determine whether that suggestiveness created a substantial likelihood of irreparable misidentification. Id. at 897.
Several factors determine whether there is a substantial likelihood of irreparable misidentification. These include "(1) the witness's opportunity to view the perpetrator during the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the degree of certainty demonstrated at the lineup, and (5) the time between the crime and the lineup." State v. Ratliff, 121 Wn. App. 642, 649, 90 P.3d 79 (2004); Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). The "linchpin" of this inquiry is the reliability of the identification. Brathwaite, 432 U.S. at 114.
Ms. Crabb testified that she had the opportunity to observe Mr. Miller prowling the parking lot for about 20 minutes. The car that Mr. Miller arrived in was parked right next to Ms. Crabb's car, which gave her the opportunity to observe Mr. Miller closely. Based on this opportunity to observe Mr. Miller, Ms. Crabb was able to accurately describe Mr. Miller and his car to law enforcement. Ms. Crabb was also able to identify the clothing that Mr. Miller was wearing as identical to those of the individual pictured on the surveillance video. She testified at trial that she was absolutely certain that the individual in the surveillance video was the same individual she had observed in the church parking lot. Finally, less than one month had passed between the incident in the church parking lot and Ms. Crabb's identification.
Under the totality of these circumstances, the potentially suggestive nature of the witness identification does not outweigh the other indicators that Ms. Crabb's identification was reliable. Ms. Crabb had a substantial opportunity to view Mr. Miller and the details that she related to law enforcement were accurate. There was a short period of time between Ms. Crabb's observation and her identification of Mr. Miller. She was also certain that the person in the video and the man she witnessed were one and the same. As such, Mr. Miller has not demonstrated that there was a substantial likelihood of irreparable misidentification.
Mr. Miller also asserts that Ms. Crabb's identification was tainted by statements made to her by law enforcement that the surveillance video showed the "Outdoors Man." RP (April 1, 2005) at 10. However, this court has no record that would indicate what significance, if any, the term "Outdoors Man" had. It may be inferable that this was a reference to the perpetrator of the thefts in the church parking lot. However, it is generally inappropriate for this court to speculate as to matters that are outside of the record. See, e.g., State v. Hill, 83 Wn.2d 558, 565, 520 P.2d 618 (1974). Because this court has no basis to determine the significance of any statements regarding the "Outdoors Man," Mr. Miller cannot establish on this record that any such statements tainted Ms. Crabb's identification.
Sufficiency of evidence
Mr. Miller challenges the sufficiency of the evidence to establish that he was the individual who took the property from Mr. Lockwood's vehicle and that the value of the items taken was between $250 and $1,500.
Evidence presented at trial is sufficient to support a guilty verdict if, viewing the evidence in the light most favorable to the state, any rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420-21, 5 P.3d 1256 (2000). Credibility determinations are for the trier of fact and this court does not review such determinations on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Mr. Miller first asserts that there was insufficient evidence from which a trier of fact could find that he was the individual who committed the theft in the church parking lot. This claim is without merit.
At trial, Ms. Crabb testified that she was certain that the individual in the church parking lot and the individual in the surveillance video were the same person. A law enforcement officer testified that the individual in the surveillance video was Mr. Miller. Taken together, a juror could reasonably infer from this evidence that Mr. Miller was the individual that Ms. Crabb saw in the church parking lot who had taken the items from Mr. Lockwood's truck.
Mr. Miller also claims there was insufficient evidence of the value of the stolen property. In order to convict Mr. Miller of second degree theft, the State was required to prove that Mr. Miller stole property which had a value of $250-$1,500. RCW 9A.56.040(1)(a). "Value" is the market value of the property at the time and place of the theft. RCW 9A.56.010(18)(a). "Market value is defined in this state as the price which a well-informed buyer would pay to a well-informed seller, where neither is obligated to enter into the transaction." State v. Morley, 119 Wn. App. 939, 943, 83 P.3d 1023 (2004) (internal quotation marks omitted).
The owner of stolen property is presumed to be familiar with the market value of the property, and no foundation needs to be laid in order for this type of testimony to be admitted. Wicklund v. Allraum, 122 Wash. 546, 547, 211 P. 760 (1922). Here, Mr. Lockwood testified that the items included "two toolboxes plus coats, miscellaneous . . . material," paper, and "anything and everything." RP (April 18, 2005) at 62. This description provides sufficient evidence for a jury to determine that the market value of the stolen items was between $250 and $1,500.
We affirm.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, C.J. and SCHULTHEIS, J., concur.