### FILED July 7, 2016 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. RAMONMORFIN JR., Appellant. ) ) ) ) ) ) ) ) ) No. 33169-5-111

UNPUBLISHED OPINION

KORSMO,

### J.

- RamonMorfin appeals from his conviction at a benchtrial ontwo counts offirst degree assault, primarily arguingthatthetrialjudgeerred in admittingtwo officers' identification ofhim as the shooter from apoor quality video recording ofthe incident. Believingthejudgeproperly admittedthat evidence, we affirm. FACTS The shooting occurred at aFranklin CountyMotel 6 late inthe evening ofAugust 29, 2011. A man fired multiple shots at Paula and Debbie Villarreal whilethey were seated in a caroutsidethe hotel. The hotel'svideo surveillance system capturedthe shooting. Bothwomen survived; PaulaVillarreal hadto have abullet surgicallyremoved from herjaw.No. 33169-5-III State v. Morfin
Detective KirkNebekerwas one ofthe detectives investigating the shooting. He reviewed the surveillance video and interviewed a number ofindividuals in rooms ofthe motel, including Ramon Morfin. The detective also eventually interviewed Manual Ramirez Salazar. The detective indicated to Mr. Ramirez Salazarthat the video surveillance was poor quality and did not identify the shooter. Ramirez Salazartold Nebekerthat Mr. Morfin was the shooter. Sergeant Brad Gregory also participated in the investigation atthe motel and sawMr. Morfin. He also viewedthe surveillance video. Theprosecutor filed two counts offirst degree assault while armed with a firearm. The information also alleged the aggravating factors thatthe crimes were committedto advance the defendant's gang and to advance his own standing within that organization. Mr. Morfin waived his rightto ajury and proceededto a benchtrial. Detective Nebeker's testimony laid the foundation for admitting the surveillance video. Priorto playing the video, the detective describedthe contents ofthe video, including his identification ofthe shooter: "You can see who I identify as Mr. Morfin lean
overthe car, and you can see the fire from the muzzle as shots go out." Defense counsel did not objectto this testimony. The video was then played for the bench. The detective hadperiodicprior contacts with Mr. Morfin dating back 11 years before the shooting. When seeing him at the hotel, the detective immediatelyrecognized his face. However, he could not recognize Mr. Morfin's face in the video because ofits poor quality. Instead, he recognized Mr. Morfin based on the clothing he was wearingthat 2No. 33169-5-III State v. Morfin night. He similarly thoughtthe shooterhad the same body build as Mr. Morfin had. After discussing the detective's beliefthat Mr. Morfin was the shooter, the prosecutor asked Detective Nebeker about his interview ofMr. Ramirez Salazar. In both direct and redirect examination, the prosecutor solicited answers that Ramirez Salazar had confirmed the detective's beliefthat Morfin was the shooter. Defense counsel did not object to either ofthese statements. Instead, counsel cross-examined the detective concerning perceived inconsistencies between his trial testimony aboutthe quality ofthe videotape and what he had told Ramirez Salazar about the tape's quality. The detective explained that he used a ruse on Ramirez Salazarto obtain information. Sergeant Brad Gregory was the only other witness who identified Mr. Morfin as the shooter. Like Detective Nebeker, Gregory could not identify faces on the videotape and based his identification solely on the shoot~r's clothing and "body style." Unlike Nebeker, Sergeant Gregory had no prior experience with Mr. Morfin before that night. The trialjudge found Mr. Morfin guilty ofboth charges and the accompanying firearm enhancements, butrejected the two gang-related aggravating factors. Commenting
on the evidence, the court indicated thatthe videotape itselfwas insufficient to identify the shooter. 1 The court confirmed that it relied on the identification made by the two officers. The written findings offact prepared by the prosecutor's office also creditthe two officers'

1"Thevideo itselfwould not allow an individual who hasn't observed these folks at the scene to make much ofit." Report ofProceedings at 165. 3No. 33169-5-III State v. Morfin
identification from the video and describe the clothing worn by Mr. Morfin and seen on the video. The findings also note that Mr. Ramirez Salazar confirmed the identification, although the court's oral remarks did not mention Mr. Ramirez Salazar. Mr. Morfin timely appealed to this court. ANALYSIS This appeal challenges the use ofthe officers' identification testimony and the reference to Mr. Ramirez Salazar's "confirmation"that Mr. Morfin was the shooter. 2 As there was no objection at trial to any ofthis testimony, Mr. Morfin frames the issues on appeal as instances ofineffective assistance ofcounsel. We address the two arguments as sub-issues ofthat challenge. Well settled standards govern our review. Typically, the failure to raise an evidentiary challenge attrial waives any challenge to the evidence. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985); RAP 2.5(a). In the case ofassertions of ineffective assistance ofcounsel, appellate courts undertake a two-prong analysis. The Sixth Amendment to the United States Constitution guarantee ofthe right to counsel requires that an appointed attorney perform to the standards ofthe profession. Counsel's failure to live up to those standards will require a new trial when the client has been prejudiced by the attorney's failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899

2 Mr. Morfin also filed aprose statement ofadditional grounds. None ofthe four issues raised in that document have merit and we will not further discuss them. 4No. 33169-5-III State v. Morfin
P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not abasis for finding error. Stricklandv. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on a claim ofineffective assistance, the defendant must show both that his counsel erred and that the error was so significant, in light ofthe entire trial record, that it deprived him ofa fair trial. Id. at 690-692. Mr. Morfin first contends that his counsel should have objected to the testimony from Nebeker and Gregory identifying him as the shooter in the video based on the clothing he had been wearing. He contends that counsel should have raised a foundational challenge to the testimony in accord with the decision in State v. George, 150 Wn. App. 110, 119, 206 P.3d 697 (2009). We thinkthe more apropos decision is State v. Hardy, 76 Wn. App. 188, 884 P.2d 8 (1994). InHardy, the defendants objected atjurytrial to testimony from an officerwho identified the defendant from a grainy videotape as the person who purchased drugs from
apolice informant. Id. at 189-190. They contended thatthe testimony invaded the province ofthejury and was improper opinion testimony. Id. at 190. Division One noted the lay opinion testimony was proper under ER701 when it was based on the perception ofthe witness and was helpful to a clear understanding ofthe issue. Id. Afterreview of
cases interpreting the instructive federal version ofthe rule, the court stated:

5No. 33169-5-III State v. Morfin

Id. A lay witness may give an opinion concerning the identity ofaperson depicted in a surveillancephotograph ifthere is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than is thejury.

In each case, the officers involved hadprior contacts with the defendants. Id. at 191-192. Because the officers knewthe defendants, they were "in a betterpositionto identify [ the defendant] in the somewhat grainy videotape than was thejury." Id. at 191. The court also rejected the claim that the testimony invaded the province ofthejury since thejury was free to disbelieve the officers. Id. A somewhat different factual pattern was presented in George, a robbery prosecution. There a divided Division Two panel concluded that an officerwho had talked to the defendants the night ofthe robbery and extensivelyreviewed the surveillance video invaded the province ofthejurywhen he identified the robbers from the video. 150 Wn. App. at 118. The George majority distinguishedHardy on the basis ofthe "extensive" contacts the Hardy officers had with the defendants during the years. Id. at 119. Although the George officerhad basedhis identification in part on the clothing wornthat night, it was clear that there had been some change in clothing between the robbery and the police contact. Id. at n.4. The dissentingjudge concluded the officer had enough contact with the defendant that night to comment aboutthe video. Id. at 120-121 (Penoyar, A.CJ., dissenting in part).
6No. 33169-5-111 State v. Morfin
We need not opine whether George was properly decided since it, too, is distinguishable from this case. Here, Detective Nebekerhad known Mr. Morfin a long time, putting him in at least the same position as the officers involved in Hardy. Although Sergeant Gregory did not have any prior exposure to Mr. Morfin, unlike George there was no evidence that Mr. Morfin had changed his clothing in the brief interval between the shooting and the meeting with the police. That evidence, therefore,
was more probative than it was in George. Even more critically than those two distinctions, the questionpresentedby ER701 is whetherthe evidence was helpful to the trier offact. Here the trial court, sitting as trier offact, expressly noted the importance ofthe identification by officers who saw the defendant at the scene given the poor quality ofthe videotape. Itwas well within the discretion ofthe trial court under ER 701 to admit the evidence. Indeed, as this was a bench trial, there is very little chance the evidence invaded the province ofthe trier of fact. The court expressly noted that it was free to credit orreject the testimony ofthe two officers. Report ofProceedings (RP) at 165. Accordingly, the concerns ofthe George majority have less weight under these facts. Defense counsel was not ineffective for failing to object. The evidence was admissible under ER701 and Hardy. There is little likelihood an objection would have succeeded. Accordingly, Mr. Morfin's argument fails to satisfy the first prong of Strickland. 7No. 33169-5-III State v. Morfin
Mr. Morfin's second argument, however, does satisfy the initial Strickland standard. He argues, and we agree, that his counsel erredby not objectingto the detective's two statements that Mr. Ramirez Salazar confirmedthat Mr. Morfin was the shooter.3 This error, however, was harmless beyond a reasonable doubt. The State agrees the statements constituted hearsay, but argues there was no objection due to defense tactics and the omission was also harmless. We are not convinced that the tactical argument is correct, but need not decide that point since the
error was harmless. The trialjudge did not mention the Ramirez Salazar statements when issuing the bench verdict otherthan in the context ofthe detective's ruse, but did expressly discuss the identification testimony by the two officers. RP at 163-165. Althoughthe statements
were included in the written findings prepared by the prosecution, there is no indication that the trial court did considerthe testimony as substantive evidence. Clerk's Papers at 32. Accordingly, we do not believe the evidence had any impact on the bench verdict.

3 Normally the decision to not objectto inadmissible evidence is tactical, but there is an exception to that general rule. "The decision ofwhen orwhetherto object is a classic example oftrial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence ofcounseljustifying reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). 8No. 33169-5-III State v. Morfin
The critical evidence was the testimony ofthe two officers linking the clothing
seen in the video to that worn by Mr. Morfin at the time ofthe incident.4 Thetrial court only relied onthat testimony in reaching the benchverdict. The statements attributed to Mr. Ramirez Salazarplayed no part in that determination. The error in not challenging them attrial did not prejudice Mr. Morfin. In both instances, Mr. Morin has not met his burden ofestablishingthat his trial counsel performed ineffectively. The convictions are affirmed.

A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public recordpursuantto RCW 2.06.040.

WE CONCUR:

Lawrence-Berrey, J. 

## j 4 In this court's view, although the video was so grainy that the shooter's face could not be identified, the shooter's clothing was sufficiently discemable in the video to support the identification testimony based on the clothing alone. 9