Opinion
No. 35581-7-II.
March 25, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-1-04366-2, Kathryn J. Nelson, J., entered November 3, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Armstrong, J.
A jury found Paul Douglas Price guilty of theft of a firearm and second degree unlawful possession of a firearm as charged. On appeal, Price claims his trial counsel was ineffective for failing to object to improper opinion testimony. In a pro se statement of additional grounds (SAG), he also challenges the State's use of a copy of a security camera videotape of the crime, the jury's unrestricted access to the videotape during deliberations, and the sufficiency of the evidence. We hold that the overwhelming evidence of Price's guilt renders any such error harmless and affirm.
FACTS
On August 16, 2005, Price walked into The Marksman gun shop in Puyallup, Washington. In less than two minutes, Price approached the glass cabinets displaying Heckler Koch (HK) brand firearms, reached over the cabinet, opened the unlocked particle-board door, took a semi-automatic HK 9 mm pistol, placed it under his clothing, and walked out of the shop undetected by employees.
The Marksman is an indoor pistol range and retail shop.
At the time of the theft, the shop employees displayed each gun brand in a separate cabinet. The glass cabinets were left unlocked. The HK guns, gun grips, and sights were all stored in the same glass cabinet located immediately to the right of the shop's entrance.
The next day, the gun shop's manager conducted a routine inventory audit and discovered that the semi-automatic HK 9 mm pistol was missing. The shop's owner, Michael Grabowski, telephoned police.
Pierce County Sheriff's Department Detectives Tim Donlin and Curtis Wright investigated the theft and reviewed the shop's August 16, 2005 video security system footage. The videotape showed a man, later identified as Price, lean over a glass cabinet, slide open the door, take a pistol, hide it under his clothing, and walk away undetected. Detectives instructed Grabowski and his employees to call police immediately should the man return to the shop.
Prior to the theft, the shop's security system consisted of two cameras connected to a computer hard drive that digitally recorded activities in the shop. The cameras were triggered by a motion sensor and only recorded movement within the shop. The computer's hard drive had the capacity to store about one week of data before recording new data over the old data.
On September 2, 2005, Price returned to the shop. Grabowski recognized Price as the man he saw in the security system footage and asked Bruce Jackson to keep Price in the shop until police arrived. Price walked out of the shop and confronted Jackson when he noticed Jackson following him. Jackson continued to follow Price until detectives arrived and arrested Price.
Jackson is a firearms instructor and leases space in the gun shop to conduct the training. He is also a retired senior homicide detective for the Tacoma Police Department and former chief criminal investigator for the Pierce County Prosecutor's Office.
The State charged Price with theft of a firearm (count I) and second degree unlawful possession of a firearm (count II). The jury found Price guilty as charged and the trial court sentenced him to consecutive sentences: 77 months on count I and 60 months on count II. Price timely appeals.
On April 10, 2006, the State corrected the charging document by adding the HK pistol's serial number.
ANALYSIS
Ineffective Assistance of Counsel
Price argues that his trial counsel was ineffective for failing to object to Jackson's improper testimony that Price was lying to him when he denied stealing anything.
The state and federal constitutions guarantee a defendant the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). To prevail in an ineffective assistance of counsel claim, Price must show (1) that his trial counsel's performance was deficient and (2) that this deficiency prejudiced Price. Strickland, 466 U.S. at 687. Deficient performance is that which falls below an objective standard of reasonableness. State v. Horton, 116 Wn. App. 909, 912, 68 P.3d 1145 (2003). If Price fails to establish either element, we need not address the other element because an ineffective assistance of counsel claim fails without proof of both elements. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004). To demonstrate prejudice, Price must show that his trial counsel's performance was so inadequate that there is a reasonable probability that the trial result would have been different, thereby undermining our confidence in the outcome. Strickland, 466 U.S. at 694; In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
We initially presume that defense counsel's decisions regarding the manner in which to conduct a trial fall within the wide range of reasonable professional assistance. Pirtle, 136 Wn.2d at 487 (citing Strickland, 466 U.S. at 689). Because a presumption runs in favor of effective representation, Price must show that his trial counsel lacked legitimate strategic or tactical reasons for the challenged conduct. McFarland, 127 Wn.2d at 336.
Here, Jackson's testimony included a description of his interactions with Price and his involvement in helping detectives find and arrest Price. Jackson testified that when he confronted Price, he asked whether Price had stolen any guns from the shop and that Price had replied: "I didn't steal anything today." 4 Report of Proceedings (RP) at 182. Jackson further testified that when he asked whether Price had stolen a gun within the last two weeks, Price "glanced down away, and said no, I didn't steal any guns." 4 RP at 182. This testimony was proper. But the State then asked Jackson:
Q. Okay. And when you asked him if he had stolen a gun within the last two weeks and he looked down, how did you interpret that?
A. He was lying. That, in my experience, is a facial expression and microbehavior of deception, down and away —
Q. Okay.
A. — to a direct, honest question.
Q. All right. And you say that's based on your experience. Is that also based on your training?
A. Yes.
4 RP at 183-84. Price's trial counsel did not object to this testimony. Instead, he extensively cross-examined Jackson attempting to impeach Jackson's testimony with the hand written statement he had written on the night of Price's arrest and raising questions regarding Jackson's credibility and memory.
Generally, opinion testimony as to a defendant's conduct or demeanor is admissible if it is prefaced with proper foundation: personal observations of the defendant's conduct, factually recounted by the witness, which directly and logically support the conclusion. State v. Stenson, 132 Wn.2d 668, 724, 940 P.2d 1239 (1997) (citing State v. Craven, 69 Wn. App. 581, 586, 849 P.2d 681, review denied, 122 Wn.2d 1019 (1993)), cert. denied, 523 U.S. 1008 (1998). Although Jackson properly based his initial testimony on his first-hand observation of Price's demeanor and behavior, it was improper for him to go further and opine that Price "was lying" merely because he glanced down and away. But here, admitting the testimony was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986).
Assuming Price's trial counsel's performance was deficient for his failure to object to the inadmissible opinion testimony, to be constitutionally ineffective, trial counsel's performance must also have prejudiced Price. Strickland, 466 U.S. at 694; Pirtle, 136 Wn.2d at 487. Counsel's deficient performance prejudices his client if counsel's performance was so inadequate that there is a reasonable probability that the trial result would have been different absent the challenged conduct, thereby undermining our confidence in the outcome. Strickland, 466 U.S. at 694; Pirtle, 136 Wn.2d at 487.
In addition, under the constitutional "overwhelming untainted evidence" harmless error test, we examine the untainted evidence to determine if it is so overwhelming that it necessarily leads to a finding of guilt. Guloy, 104 Wn.2d at 426 (citing Parker v. Randolph, 442 U.S. 62, 70-71, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979); Brown v. United States, 411 U.S. 223, 231, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973)). See also State v. Florczak, 76 Wn. App. 55, 75, 882 P.2d 199 (1994) (error harmless because the untainted evidence, taken together, was so overwhelming that even without the erroneously admitted testimony, the jury would have concluded that sexual abuse was the underlying trauma leading to victim's diagnosis of posttraumatic stress syndrome) (citing State v. Jones, 71 Wn. App. 798, 813, 863 P.2d 85 (1993), review denied, 124 Wn.2d 1018 (1994)), review denied, 126 Wn.2d 1010 (1995).
Because here the shop's security camera caught Price stealing the gun, the evidence of Price's guilt was overwhelming. Even if trial counsel had made a successful timely objection, the exclusion of Jackson's inadmissible opinion testimony would not have altered the trial's outcome. Price has failed to show that the result of his trial would have differed had his trial counsel objected to the improper opinion testimony and any error is harmless beyond a reasonable doubt. SAG Issues
RAP 10.10.
A. Best Evidence Rule
In his SAG, Price contends that the State failed to prove he actually stole the pistol because the videotape of the theft was the "only" evidence offered to prove his guilt and that the poor quality of the tape, a copy, did not clearly show that he stole anything.
The best evidence rule provides that the original is not required and other evidence of the contents of a writing, recording, or photograph is admissible if all originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. ER 1004; State v. Detrick, 55 Wn. App. 501, 503, 778 P.2d 529 (1989).
In this case, Detective Donlin, a crime scene detective and a 14-year veteran of law enforcement, testified that during the investigation he reviewed the original surveillance footage recorded on the gun shop security system's hard drive. Donlin noted that the equipment consisted of a time-lapse recorder, which caused the footage to appear in "jerky motions." 5 RP at 286. In addition, Donlin testified that "[w]e reviewed [the footage from the system's hard drive] dozens of times, just over and over . . . [t]he skip developed. What was a little bit clearer in the previous time, it was not there." 5 RP at 301-02. The detective also testified that the videotape copy was a fair and accurate representation of what was ultimately recorded to the hard drive after it was repeatedly reviewed. Price did not object to the detective's testimony.
There is no evidence in the record that the video copy was inaccurate or that the hard drive data was destroyed in bad faith. The trial court did not err in admitting the videotape in lieu of the inadvertently damaged original hard drive data. Detrick, 55 Wn. App. at 504.
Moreover, ER 103 requires all evidentiary objections to be timely and specific. Failure to raise an objection at the trial court precludes a party from raising it on appeal. DeHaven v. Gant, 42 Wn. App. 666, 669, 713 P.2d 149 (citing Symes v. Teagle, 67 Wn.2d 867, 873, 410 P.2d 594 (1966); State ex rel. Partlow v. Law, 39 Wn. App. 173, 178, 692 P.2d 863 (1984)), review denied, 105 Wn.2d 1015 (1986). Even if an objection is made at trial, a party may assign error in the appellate court only on the specific ground made at trial. Guloy, 104 Wn.2d at 422; State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976). Further, the detective's testimony does not present an issue of manifest constitutional error that can be raised for the first time on appeal. RAP 2.5(a).
Price also challenges all testimony regarding the contents of the videotape. But, again, Price did not object at trial when the trial court would have had an opportunity to rule on it in a timely manner. Thus, this issue has not been preserved for our review. RAP 2.5(a).
B. Sufficiency of the Evidence
Price next argues that the evidence is insufficient to prove that he stole a firearm or that he unlawfully possessed a firearm. Price supports his claim by stating that the videotape's poor quality only shows a black object in his hands, which cannot be positively identified as the missing pistol because the tape "skips" when played. He also argues that according to the testimony, the pistol could have been stolen up to two days earlier and that the black object seen in Price's hands could have been a holster.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it allows any reasonable trier of fact to find each element of a crime beyond a reasonable doubt. State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003). A criminal defendant who challenges the sufficiency of the evidence admits the truth of the State's evidence and all reasonable inferences from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We leave resolution of conflicting testimony, credibility determinations, and the persuasiveness of evidence to the fact finder and do not review them on appeal. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
To convict Price of theft of a firearm, the State had to prove, beyond a reasonable doubt, that, while in Washington State, Price wrongfully obtained or exerted unauthorized control over a firearm belonging to another with intent to deprive him of the firearm. RCW 9A.56.020(1), .300(1). And to convict Price of second degree unlawful possession of a firearm, the State had to prove, beyond a reasonable doubt, that Price had previously been convicted of a felony and possessed or had control of a firearm in Washington State. RCW 9.41.040(2)(a)(i).
Price stipulated to his felony criminal conviction and conceded that he was the man in the videotape leaning over the glass cabinet. Accordingly, the videotape provided direct evidence that Price stole a firearm in Washington State. In addition to the videotape, the State presented testimony from the gun shop owner and several employees. They testified regarding the owner's standards and practices of keeping track of merchandise, including performing regular inventory audits of all firearms every other month. Further testimony showed that, during the June 2005 inventory, the HK pistol was in the shop, but that the pistol was missing during the August 2005 inventory.
Additionally, one gun shop employee testified that he had shown the HK pistol to a potential customer a few days prior to the August inventory check. Further testimony showed that employees displayed only HK guns in the top shelf of the glass cabinet, and that the HK pistol was the only item missing from the top shelf of the cabinet following the August inventory. Taking the evidence in a light most favorable to the State, as we must, the jury had sufficient evidence to conclude beyond a reasonable doubt that Price stole the pistol. Once the jury found Price guilty of stealing the firearm, there was sufficient evidence for it to find him guilty of second degree unlawful possession of a firearm based on Price's stipulated criminal history.
C. Viewing The Videotape Exhibit During Jury Deliberations
Price next contends for the first time on appeal that it was improper for the jury to replay the surveillance videotape, exhibit 3, during deliberations because the trial court's decision to allow the jury unrestricted access to the videotape interfered with the fundamental guarantees associated with a fair and impartial jury trial and unduly prejudiced him. We disagree.
Under CrR 6.15(e), the jury "shall take with it . . . all exhibits received in evidence" when it retires for deliberation. Once admitted into evidence, exhibits taken to the jury room may be used by the jury "as it sees fit." State v. Elmore, 139 Wn.2d 250, 295, 985 P.2d 289 (1999) (quoting State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997)), cert. denied, 531 U.S. 837 (2000). We review whether a trial court erred in giving an exhibit to the jury during deliberations for abuse of discretion. State v. Frazier, 99 Wn.2d 180, 190-91, 661 P.2d 126 (1983). Permitting the jury unrestricted access to an audio or videotape exhibit, alone, is not an abuse of discretion. Frazier, 99 Wn.2d at 190; Castellanos, 82 Wn. App. 204, 207, 916 P.2d 983 (1996), aff'd, 132 Wn.2d 94 (1997).
Here, the trial court admitted the videotape exhibit and sent it to the jury during deliberations without any objections. Price did not initially object to providing the jury with the exhibit; only later did he ask the trial court to restrict the jury's ability to play back the tape.
But the jury was entitled to use the exhibit as it saw fit. Elmore, 139 Wn.2d at 295. And "[w]ithholding the playback machine would be like admitting a written contract into evidence but denying jurors their eyeglasses necessary to read it." Castellanos, 132 Wn.2d at 102. See Frazier, 99 Wn.2d at 190 (the admission of a tape recording as an exhibit, in and of itself, does not overly emphasize the importance of that evidence); cf. State v. Koontz, 145 Wn.2d 650, 654-55, 658-59, 41 P.3d 475 (2002) (recorded trial testimony should not be treated the same as recorded exhibits).
Here, the exhibit in question was a videotape of the commission of the crime and the trial court did not abuse its discretion in overruling the defense's untimely objection and permitting the jury to review it.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J. and ARMSTRONG, J., concur.