FILED 

July 7, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE ST ATE OF WASHING TON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

v. 

RAMON MORFIN JR., 

Appellant. 

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No. 33169-5-111 

UNPUBLISHED OPINION 

KORSMO, J. - Ramon Morfin appeals from his conviction at a bench trial on two 

counts of first degree assault, primarily arguing that the trial judge erred in admitting two 

officers' identification of him as the shooter from a poor quality video recording of the 

incident. Believing the judge properly admitted that evidence, we affirm. 

FACTS 

The shooting occurred at a Franklin County Motel 6 late in the evening of August 

29, 2011. A man fired multiple shots at Paula and Debbie Villarreal while they were 

seated in a car outside the hotel. The hotel's video surveillance system captured the 

shooting. Both women survived; Paula Villarreal had to have a bullet surgically removed 

from her jaw. 
No. 33169-5-III 

State v. Morfin 

Detective Kirk Nebeker was one of the detectives investigating the shooting. He 

reviewed the surveillance video and interviewed a number of individuals in rooms of the 

motel, including Ramon Morfin. The detective also eventually interviewed Manual 

Ramirez Salazar. The detective indicated to Mr. Ramirez Salazar that the video 

surveillance was poor quality and did not identify the shooter. Ramirez Salazar told 

Nebeker that Mr. Morfin was the shooter. Sergeant Brad Gregory also participated in the 

investigation at the motel and saw Mr. Morfin. He also viewed the surveillance video. 

The prosecutor filed two counts of first degree assault while armed with a firearm. 

The information also alleged the aggravating factors that the crimes were committed to 

advance the defendant's gang and to advance his own standing within that organization. 

Mr. Morfin waived his right to a jury and proceeded to a bench trial. 

Detective Nebeker's testimony laid the foundation for admitting the surveillance 

video. Prior to playing the video, the detective described the contents of the video, 

including his identification of the shooter: "You can see who I identify as Mr. Morfin lean 

over the car, and you can see the fire from the muzzle as shots go out." Defense counsel 

did not object to this testimony. The video was then played for the bench. 

The detective had periodic prior contacts with Mr. Morfin dating back 11 years 

before the shooting. When seeing him at the hotel, the detective immediately recognized 

his face. However, he could not recognize Mr. Morfin's face in the video because of its 

poor quality. Instead, he recognized Mr. Morfin based on the clothing he was wearing that 

2 
No. 33169-5-III 

State v. Morfin 

night. He similarly thought the shooter had the same body build as Mr. Morfin had. 

After discussing the detective's belief that Mr. Morfin was the shooter, the 

prosecutor asked Detective Nebeker about his interview of Mr. Ramirez Salazar. In both 

direct and redirect examination, the prosecutor solicited answers that Ramirez Salazar had 

confirmed the detective's belief that Morfin was the shooter. Defense counsel did not 

object to either of these statements. Instead, counsel cross-examined the detective 

concerning perceived inconsistencies between his trial testimony about the quality of the 

videotape and what he had told Ramirez Salazar about the tape's quality. The detective 

explained that he used a ruse on Ramirez Salazar to 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 trial judge found Mr. Morfin guilty of both charges and the accompanying 

firearm enhancements, but rejected the two gang-related aggravating factors. Commenting 

on the evidence, the court indicated that the videotape itself was insufficient to identify the 

shooter. 1 The court confirmed that it relied on the identification made by the two officers. 

The written findings of fact prepared by the prosecutor's office also credit the two officers' 

1 "The video itself would not allow an individual who hasn't observed these folks 

at the scene to make much of it." Report of Proceedings at 165. 

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No. 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 of the 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 of this testimony, Mr. Morfin frames the issues on 

appeal as instances of ineffective assistance of counsel. We address the two arguments as 

sub-issues of that challenge. 

Well settled standards govern our review. Typically, the failure to raise an 

evidentiary challenge at trial 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 of assertions of 

ineffective assistance of counsel, appellate courts undertake a two-prong analysis. The 

Sixth Amendment to the United States Constitution guarantee of the right to counsel 

requires that an appointed attorney perform to the standards of the 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 a prose statement of additional grounds. None of the four 

issues raised in that document have merit and we will not further discuss them. 

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No. 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 a basis 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 of ineffective assistance, the defendant must show both 

that his counsel erred and that the error was so significant, in light of the entire trial 

record, that it deprived him of a 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 think the more apropos decision is 

State v. Hardy, 76 Wn. App. 188, 884 P.2d 8 (1994). 

In Hardy, the defendants objected at jury trial to testimony from an officer who 

identified the defendant from a grainy videotape as the person who purchased drugs from 

a police informant. Id. at 189-190. They contended that the testimony invaded the 

province of the jury and was improper opinion testimony. Id. at 190. Division One noted 

the lay opinion testimony was proper under ER 701 when it was based on the perception 

of the witness and was helpful to a clear understanding of the issue. Id. After review of 

cases interpreting the instructive federal version of the rule, the court stated: 

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No. 33169-5-III 

State v. Morfin 

Id. 

A lay witness may give an opinion concerning the identity of a person 

depicted in a surveillance photograph if there is some basis for concluding 

that the witness is more likely to correctly identify the defendant from the 

photograph than is the jury. 

In each case, the officers involved had prior contacts with the defendants. Id. at 

191-192. Because the officers knew the defendants, they were "in a better position to 

identify [ the defendant] in the somewhat grainy videotape than was the jury." Id. at 191. 

The court also rejected the claim that the testimony invaded the province of the jury since 

the jury 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 officer who had 

talked to the defendants the night of the robbery and extensively reviewed the 

surveillance video invaded the province of the jury when he identified the robbers from 

the video. 150 Wn. App. at 118. The George majority distinguished Hardy on the basis 

of the "extensive" contacts the Hardy officers had with the defendants during the years. 

Id. at 119. Although the George officer had based his identification in part on the 

clothing worn that night, it was clear that there had been some change in clothing 

between the robbery and the police contact. Id. at n.4. The dissenting judge concluded 

the officer had enough contact with the defendant that night to comment about the video. 

Id. at 120-121 (Penoyar, A.CJ., dissenting in part). 

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No. 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 Nebeker had 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 question presented by ER 701 

is whether the evidence was helpful to the trier of fact. Here the trial court, sitting as trier 

of fact, expressly noted the importance of the identification by officers who saw the 

defendant at the scene given the poor quality of the videotape. It was well within the 

discretion of the 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 of the trier of 

fact. The court expressly noted that it was free to credit or reject the testimony of the two 

officers. Report of Proceedings (RP) at 165. Accordingly, the concerns of the George 

majority have less weight under these facts. 

Defense counsel was not ineffective for failing to object. The evidence was 

admissible under ER 701 and Hardy. There is little likelihood an objection would have 

succeeded. Accordingly, Mr. Morfin's argument fails to satisfy the first prong of 

Strickland. 

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No. 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 erred by not objecting to the 

detective's two statements that Mr. Ramirez Salazar confirmed that 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 trial judge did not mention the Ramirez Salazar statements when issuing the 

bench verdict other than in the context of the detective's ruse, but did expressly discuss 

the identification testimony by the two officers. RP at 163-165. Although the statements 

were included in the written findings prepared by the prosecution, there is no indication 

that the trial court did consider the 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 object to inadmissible evidence is tactical, but there 

is an exception to that general rule. "The decision of when or whether to object is a 

classic example of trial tactics. Only in egregious circumstances, on testimony central to 

the State's case, will the failure to object constitute incompetence of counsel justifying 

reversal." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). 

8 
No. 33169-5-III 

State v. Morfin 

The critical evidence was the testimony of the two officers linking the clothing 

seen in the video to that worn by Mr. Morfin at the time of the incident.4 The trial court 

only relied on that testimony in reaching the bench verdict. The statements attributed to 

Mr. Ramirez Salazar played no part in that determination. The error in not challenging 

them at trial did not prejudice Mr. Morfin. 

In both instances, Mr. Morin has not met his burden of establishing that his trial 

counsel performed ineffectively. The convictions are affirmed. 

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. 

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. 

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