### FILED February 25, 2016 I n the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THECOURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 33278-I-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) DANIEL ALCARAZ MENDOZA, ) ) Appellant. ) LAWRENCE-BERREY, J.

- Daniel Alcaraz Mendoza appeals his Benton County benchtrial conviction ofunlawful possession ofa controlled substance-­ methamphetamine. He challenges evidentiary rulings by the court andthe sufficiency of the evidence to supportthe conviction. We find no error andaffirm. FACTS AND PROCEDURE The facts are summarizedfrom testimony atthe bench trial. OnJuly 4, 2013, KennewickPolice Officers Dale Kuebny and MattNewton made a probable cause arrest ofDanielAlcarazMendoza athis place ofemployment. Officer Kuebny searchedMr. AlcarazMendoza'spocketincidenttothe arrest and located a plastic baggie containing a white crystalline substancethat field testedpositive for methamphetamine. FollowingNo. 33278-1-III State v. AlcarazMendoza
Miranda l warnings and Mr. Alcaraz Mendoza's waiver ofthose rights, Officer Newton asked him what the substance was that Officer Kuehny had pulled from his pocket. Officer Newtontestified that Mr. Alcaraz Mendoza said, "It'smethamphetamine." Report ofProceedings (RP) at 12. Officer Kuehny testified that he collected the substance seized from Mr. Alcaraz Mendoza's pocket, field-tested it, and packaged it into an evidence bag, which he placed in the police evidence locker. He tilled out a form requestingthe item be sent to the Washington State Patrol Crime Laboratory (Crime Lab) for testing. He received a report back from the CrimeLab. He examined the white crystalline substance in court and testified it appeared to be in relatively the same condition as when he collected it and requested testing. After a series ofdefense objections (discussed infra), Officer Kuehny testified thathe recalled Mr. Alcaraz Mendoza admitting it was his "crystal meth," and that later atjail he said "he hadthe crystal meth because he had backpain." RP at 25. CrimeLab scientist Martin McDermot testified over defense objections to foundation and chain ofcustody thathe tested the submittedwhite crystalline substance and determined it contained methamphetamine. The court admitted the substance (exhibit 2) into evidence.

I Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 161. Ed. 2d 694 (1966). 2No. 33278-1-III State v. AlcarazMendoza
Based onthe testimony, the court entered findings offact and conclusions oflaw to the effect thatMr. Alcaraz Mendoza admittedlypossessed whathe knew to be methamphetamine and was thus guilty as charged ofunlawful possession ofa controlled substance. He appeals. ANALYSIS Mr. Alcaraz Mendoza first contends the trial court erred by admitting Officer Kuehny's testimony regarding his (Mr. Alcaraz Mendoza's) admissions to possessing methamphetamine because the officer lacked independent recollection ofthe statements and had already improperly refreshed his recollection because he initially testified from his report. Decisions involving evidentiary issues lie within the trial court's discretion and will not be reversed on appeal absent a showing ofabuse ofdiscretion. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). "Atrial court abuses its discretion when its decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons, Le., ifthe courtrelies on unsupported facts ortakes a view that no reasonable person wouldtake; the standard is also violated whenthe trial court makes a reasonable decision but applies the wrong legal standard orbases its ruling

on an erroneous view ofthe law." State v. Hudson, 150 Wn. App. 646,652,208 P.3d 1236 (2009). A witness's use ofa written memoranda, such as a police report, to refresh

a pastrecollection when the report has not been admitted into evidence lies within the 3No. 33278-1-III 

### State v. 

### AlcarazMendoza
discretion ofthe trial court. 

### State v. 

### Huelett, 92 Wn.2d 967, 968-69, 603 P.2d 1258 

### (1979); Statev. Little, 57 Wn.2d 516,520,358 P.2d 120 (1961) (use ofnotes to refresh memory ofwitness must be closely supervised bythe trial court whose sound discretion is the most effective safeguard). The criteria for the use ofnotes or other memorandato refresh a witness's recollection are (1) the witness's memory needs refreshing, (2) opposing counsel has the right to examine the writing, and (3) the trial court be satisfied that the witness is not being coached-thatthe witness is using the notes to aid, and not supplant, his own memory. 

### Little, 57 Wn.2d at 521. Even after reviewingthe memoranda, the witness must still testifY from independentrecollection of the matter. 

### McCoy v. 

### Courtney, 30 Wn.2d 125,128, 190 P.2d 732 (1948); 

### Preston v. 

### Metro. Life Ins. Co., 198 Wash. 157, 164,87P.2d475 (1939); 

### see Huelett, 92 Wn.2d at 969-70. During OfficerKuehny's testimony the prosecutor asked whether the defendant made any comments to him about the methamphetamine. OfficerKuehny answered that he did, and started to explain the comments when defense counsel objected thatthe officer appeared to be reading directly from his report. The court agreed with defense counsel that the State should first inquire whether the officerhad any independent recollection, and ifso, he couldreferto the report to refresh his recollection. Officer Kuehny then stated that he prepared thereport shortly after the incident and that he had "some recollection" ofthe events. RP at 23. He stated: "I don'tthink 1could recall word for word whatwas said, but 1could recall the gist ofwhat was said." RP at 23. Defense 4No. 33278-1-III State v. AlcarazMendoza
counsel then reiterated the objection: "[H]e's indicating that he's got some recollection, not a verbatim recollection. I'd ask that he be allowed to testify from his recollection." RP at 24. The court explained to the prosecutor that "[ w]e need to get the extent ofhis memory on the record before you can refresh." RP at 24. Afterthe prosecutor stated that he believed Officer Kuehny had exhausted his memory and should be allowed to refresh his recollection by referring to his report, defense counsel reiterated the objection: Your Honor, I'mnot going to get Officer Kuehny's words exactly, buthe said he remembers the gist ofwhat was in the report. I thinkthat is the basis for recollection. Verbatim? No, but definitely a recollection of what he placed in the report, so we're going torenew our objection to allowing him to read from his report. RP at 25. The court agreed and told the prosecutorthathe would needto ask some specific questions before he could be allowed to refresh and that he needed to "make a little more foundation." RP at 25. The prosecutorthen asked Officer Kuehny ifhe recalled what specifically the defendant said. Officer Kuehny responded, "I recall the defendant admitting it was his methamphetamine
... orhis crystal meth." RP at 25. The prosecutorthen asked ifhe recalled ifthe defendant said why he had the crystal meth. Officer Kuehny responded, "Later at thejailhe told me he had the crystal meth because he hadbackpain." RP at 25. The defense did not objectto the testimony. Officer Kuehny made no further reference to his report.

5No. 33278-I-III State 

### v. AlcarazMendoza
Mr. Alcaraz Mendoza contends that the State failed to establish Officer Kuehny's independent memory ofthe subjectmatter as required under Washington law because he only had "somerecollection," and that was after having already reviewed his report. He contends it was equally improper for the court to allow the officerto testifY from his report without initially establishing that he had an independentrecollection. He concludes that given the inculpatory nature ofthe evidence, the improper admission of the testimony was so prejudicial that a new trial is required. We reject these arguments. As the State contends, the trial court properly restricted Officer Kuehny from using his report based on the defense objections, and the officer ultimately testified from his independentrecollection in any event. Indeed, consistent with the above-cited case law, the trial court closely supervisedthe issue by not allowing the officer to read from his report while testifYing and then requiring the prosecutor to establish the officer's independent recollection ofthe subject matter before the report could be used to refresh his memory. Inthe end, the report was not needed because the only indication is that the officertestified from his independent recollection ofwhat Mr. Alcaraz Mendoza told him about the methamphetamine. There is no abuse ofdiscretion or error by the trial court. Mr. Alcaraz Mendoza next contends the court erred in admitting the white crystalline substance (exhibit 2) into evidence because the State failed to establish adequate foundation and chain ofcustody.

6No. 33278-1-III State 

### v. AlcarazMendoza
A trial court has broad discretion in admittingphysical objects; wereview for an abuse ofdiscretion. State v. Campbell, 103 Wn.2d 1,21,691 P.2d 929 (1984). A physical object connected with a crime may be admitted into evidence whenproperly identified and when shown to be in substantially the same condition as when the crime
was committed. 

### Id. The evidence need not be identified with absolute certainty, nor must every possibility ofalteration or substitution be eliminated. 

### Id. Courts consider the nature ofthe item, the circumstances surrounding the preservation and custody, andthe likelihood oftampering or alteration. 

### Id. A sufficient foundation for the admission of evidence may be established even without proofofan unbroken chain ofcustody so long

as the exhibit is properly identified as being the same object and in the same condition as itwas when it was initially acquired by the party. State v. Picard, 90 Wn. App. 890, 897, 954 P.2d 336 (1998); see also State v. McGinley, 18 Wn. App. 862, 866-67, 573 P.2d 30 (1977) (not necessary for State to negate every possibility oftampering with exhibit by

means oftestimony ofeach custodian). Minor discrepancies or uncertainties will affect only the weight ofthe evidence, not its admissibility. Campbell, 103 Wn.2d at 21. Officer Kuebny testified that exhibit 2 contained the white crystalline substance that he collected from Mr. Alcaraz Mendoza's pocket incidentto arrest. He recognized the item based onthe contents and the packagingthat bore his writing and signature. Oncehe collected andpackaged the item, he placed it into an evidence locker and requested that it be sent to the Crime Lab for testing. He received a report back from the 

### 7

### No. 33278-1-III State 

### v. AlcarazMendoza
Crime Lab. He examined the exhibit in court andtestified itappeared to be in relatively the same condition as when he collected it and sent it to the Crime Lab, except for blue tape the Crime Lab used toreseal the packaging. The Crime Lab scientist, Martin McDermot, testified that exhibit 2 was the material in its packagingthathe received for analysis in this case, and that its item numbers, case numbers, and general description correspond with the reportthathe prepared. Hetestified he made markings on the object indicating that he tested or handled it. He acknowledged, however, that he did not receive the item directly from Officer Kuehny, but rather from VictorAlcorey, a Crime Lab property and evidence custodian, who did not testifY. Mr. McDermotwas unable to testify how or where Mr. Alcorey received the item. The defense thus objected to admission ofexhibit 2 on foundation and chain of custody grounds. The court overruledthe objection and admitted the exhibit on the basis that Officer Kuehny received the item and created the packaging and the item was as he observed itotherthan evidence ofentry by the Crime Lab; Mr. McDermottestified there

was an indication ofhis entry into the item; and, based onthe testimony the only indication ofchanged condition goes to the weight ofthe evidence and not admissibility. Mr. Alcaraz Mendoza contends the court erred in admitting exhibit 2 and related testimony ofMr. McDermotbecause crucial elements ofthe chain ofcustody were mlssmg. He argues the reliability ofthe evidence was compromised because Mr. 8No. 33278-1-III State 

### v. AlcarazMendoza
McDermot was unable to testify how or where Mr. Alcorey obtained the item, thus leaving a critical gap in establishing that the evidence was the purported item taken from him in substantially the same form. We also reject these arguments. The trial court's ruling indicates it found nothing to suggest tampering or alteration ofthe item beyond what Mr. McDermot did for purposes oftesting. The State adequately identified the item and showed that itwas in substantially the same condition

as whenthe crime was committed, irrespective oflack oftestimony regarding Mr. Alcorey's.handling ofthe item. The court was correct that in this situation any deficiencies in chain ofcustody goto weight and not admissibility. The court did not abuse its discretion in admitting exhibit 2 and Mr. McDermot's testimony thatthe substancetested positive for methamphetamine. Finally, Mr. Alcaraz Mendoza challenges the sufficiency ofthe evidence to support the conviction for methamphetamine possession. He contends that without the erroneously admitted exhibit 2 and testimony ofOfficer Kuebny and Mr. McDermot, the properly admitted evidence failed to establish the elements ofthe crime. Inreviewing a challenge to the sufficiency ofthe evidence, we view the evidence and all reasonable inferences in a light most favorable to the State to determine whether any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). Following a benchtrial, appellate review is limitedto determining whether substantial evidence 

### 9No. 33278-1-II1 State v. AlcarazMendoza supports the findings offact and, ifso, whetherthe findings support the conclusions of law. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). "Substantial evidence" is evidence sufficientto persuade a fair-minded person ofthe truth ofthe asserted premise. 

### Id. We review challenges to a trial court's.conclusions oflaw de novo. State v. Gatewood, 163 Wn.2d 534,539, 182 P.3d 426 (2008). We deferto the trier of fact on issues ofconflicting testimony, witness credibility, andpersuasiveness ofthe evidence. State v. Walton, 64 Wn. App. 410, 415-16,824 P.2d 533 (1992). The crime ofunlawful possession ofa controlled substance requires proofof just two elements: (1) possession (2) oracontrolled substance. RCW 69.50.4013(1). Methamphetamine is a controlled substance. RCW 69.50.206(d)(2). As discussed, there was no error in the admission ofOfficer Kuehny's testimony,

or in the admission ofexhibit 2 that Mr. McDermot testified contained methamphetamine. Mr. Alcaraz Mendozatold both OfficerNewton and Officer Kuehny thatthe substance seized from his pocket was methamphetamine. The trial court made written findings that Officer Kuehny searched Mr. Alcaraz Mendoza's pants pocket incidentto his arrest and located a plastic baggie containing a white crystalline substance that Mr. Alcaraz Mendoza admitted was methamphetamine that he uses for backpain. The substanceproved in Crime Lab testing to contain methamphetamine. (Findings of Fact 3-4, 8-10) These findings are supported by substantial evidence and support the court's conclusions oflaw that Mr. Alcaraz Mendozaknowingly possessed 10No. 33278-I-III State 

### v. AlcarazMendoza methamphetamine-a controlled substance-inBenton County on July 4, 20l3. (Conclusions ofLaw 1-3) A rational trier offact could find him guilty beyond a reasonable doubt based on the evidence. RCW 69.50.4013(1); Green, 94 Wn.2d at 221. Affirmed. A majority ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW2.06.040. 

## j WE CONCUR:

# 1ztLhfU~(

# C!-F-?KJL,

# H Siddoway, C.J. Pennell, J.

### ~ Lawrence-Berrey, J.

11