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.. STATE OF WASHINGTC: 2013 JUL 29 AM 10= 29 IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. ELIJAH MAYFIELD, III, Appellant. No. 68508-2-1
DIVISION ONE UNPUBLISHED OPINION
FILED: July 29, 2013

Grosse, J. — The erroneous admission of evidence is harmless if it did not materially affect the outcome ofthe trial. Here, the evidence of guilt, including Elijah Mayfield's confession, was overwhelming. Consequently, any error inthe admission of identification testimony and other evidence was harmless; Defense counsel's 

### failure to object to alleged prosecutorial misconduct precludes our review, and the arguments in Mayfield's statement of additional grounds for review are without merit.
We therefore affirm. FACTS In early 2009, local stores were experiencing numerous thefts of high-priced personal care items, including electric toothbrushes, replacement brush heads, and razors. At Safeway stores, employees began marking the packages of frequently stolen items with an ultraviolet pen, recording the employee's initials, the date, and the store number. Each day, the employees would check the shelves and sales records to determine the time period when items disappeared without being 

### purchased. Several police departments cooperated in an investigation that eventually identified Elijah Mayfield as a suspect.No. 68508-2-1 / 2
On March 8, 2009, Teri Pentin, the general merchandise manager for the Newcastle Safeway, discovered that two Oral B toothbrushes and two Sonicare replacement brushes were missing. Pentin confirmed that the items had not been sold and determined that they had gone missing sometime after 2:00 p.m. the previous day. Gene Blahato, Safeway's organized retail crime investigator, reviewed the video from the store's security cameras. He observed Mayfield enter the store,
remove items from the shelves, and conceal them in his pants. Mayfield then exited the store without paying for the items. Tracy Li, the general merchandise manager at the Factoria Safeway, discovered items missing from her section on March 12, 2009, March 27, 2009, and April 8, 2009. Li and Blahato reviewed the security camera videos for these dates, which showed Mayfield shoplifting various items on each date, including Sonicare replacement brush heads, boxes oflaxatives, Rogaine, and Oral-B toothbrushes. Based on their investigations, Bellevue Police Department Detective James Lindquist and King County Sheriff's Office Detective Jeffrey Johnson interviewed 

### Mayfield at the Issaquah Jail on May 11, 2009. After being advised of hisMiranda1 rights, Mayfield agreed to make a recorded statement. Mayfield admitted driving to the Factoria Safeway on March 12, March 27, and April 8, 2009, and taking various items, including Sonicare and Oral-B toothbrushes and toothbrush replacement heads. He explained that he took the items fromthe shelves and concealed them in

1Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 68508-2-1 / 3


### his pants before leaving. Mayfield then drove to the Renton area and sold the items for cash and cocaine. 

### Mayfield also agreed to give a statementto Snohomish CountySheriffs Office DetectiveCollinAinsworth on August 6, 2009. Mayfield toldAinsworth that he had an 

### arrangementwith Mark Ostheller to provide stolen retail products, including electric toothbrushes, toothbrush replacement heads, and razors. Mayfield provided the items that Osthellerrequested in exchange for cash. Mayfield said the arrangement 

### had lasted three years and that he had dealtexclusivelywith Osthellerforthisperiod. The State chargedMayfield and Osthellerwith multiple counts oftrafficking in stolenproperty. Osthellerpleadedguiltyto ten counts oftrafficking in stolenproperty 

### in the second degree and agreed to be awitness forthe State. The State thentried 

### Mayfield on four counts oftrafficking in stolen property in thefirst degree, based on the thefts atthe Newcastle and Factoria Safeway stores. 

### Attrial, David Pankratz testified that he purchased itemsfrom various sources and resold them on the Internet. For several years, Pankratz bought itemsfrom Mark 

### Ostheller. At some point, Pankratz became suspicious about the low prices for 

### Ostheller's items and reported his concerns to the FBI (Federal Bureau of 

### Investigation). Pankratz eventually came into contact with Blahato and Detective Ainsworth. Attheir request, Pankratz photographed certain itemsthat hepurchased from Ostheller. Some of the photographs documented markings with the ultraviolet pen from the Newcastle and Factoria Safeway stores. 

### Osthellertestified that he purchased itemsfrom Mayfieldfor about three years. 

### Atfirst, OsthellermetMayfield in aparking lotand gave him cashin exchangefortheNo. 68508-2-1/4
items, which included electric toothbrushes and razors. Eventually, Ostheller rented
a storage space and gave Mayfield a key. Mayfield would then place the items inthe storage space and take a prearranged amount of the cash that Ostheller had left. Ostheller sold many ofthe items that Mayfield supplied to David Pankratz. The jury listened to the recording of Mayfield's May 11, 2009 statement admitting to the thefts. Thejury also watched the video recordings ofthe three thefts from the Factoria Safeway. Blahato testified that he prepared a copy of the video recording ofthe March 7, 2009 theftfrom the Newcastle Safeway and transferred it to disc. After reviewing the copy, he gave the disc to the police. At some point, that disc became corrupted and unviewable, and the recording was not available at trial. Mayfield testified that when he gave his statements to police officers, he was not certain about the dates. He conceded that he was familiar with the Factoria 

### Safeway, but claimed he was "not quite sure" about the Newcastle Safeway. He denied ever stealing boxes ofRogaine because they were too big to fit into his pants. 

### Mayfield repeatedly admitted committing the three thefts depicted in the Factoria video recordings and affirmed that he was "pleading guilty, actually" to those charges because he had a "guilty conscience" and wanted "everybody to know, I was 

### addicted to drugs and gambling." During cross-examination, Mayfield acknowledged multiple prior convictions for theft and robbery. 

### The jury found Mayfield guilty as charged of fourcounts oftrafficking in stolen property in the firstdegree, and the court imposed a 43-month standard range term.No. 68508-2-1 / 5

ANALYSIS Mayfield contends that the trial court violated his right to a fair trial when it erroneously admitted evidence about the general scope of Safeway's damages from shoplifting. He argues that the evidence was irrelevant, designed to evoke an emotional response from thejury, and amounted to impropervictim impact evidence. Without objection, the deputy prosecutorasked Blahato aboutthe "impact" that "professional shoplifting had on Safeway stores." Without objection, Blahato answered that professional shoplifting had "a very damaging effect" on the stores that encompassed both financial consequences and concerns about the quality and 

### safety of the merchandise. At the conclusion ofBlahato's answer, defense counsel 

### objected on the basis of relevance. The trial court did not rule on the objection, and the deputy prosecutor stated that he would "pinpoint the question." The trial court overruled defense counsel's objection when Blahato testified that Safeway's 

### shoplifting losses involved millions of dollars. But the courtsustained an objection to the deputy prosecutor's question about "whopays forthat in the long run." Evidence is relevant if ithas "any tendency to make the existence of any fact that is ofconsequence . . . more probable or less probable than it would be without the evidence."2 Inorderto convictMayfield oftrafficking instolen property in the first 

### degree, the State had to prove that he knowingly possessed stolen property with the intent to sell it to another orknowingly sold stolen propertyto another.3 As the State

2ER401. 

### 3See RCW9A.82.050(1); 9A.82.010(19).No. 68508-2-1 / 6
concedes, the general extent of Safeway's losses from shoplifting was irrelevant to that determination. The State suggests that the evidence was relevant to counter the defense strategy of portraying Mayfield as no more culpable than Ostheller, whom defense counsel characterized as "the brains behind the operation." But Safeway's general shoplifting losses were no more relevant for this issue than for the elements ofthe
offense. Underthe facts of this case, however, any errorwas harmless. The erroneous admission ofevidence is not prejudicial unless, "'withinreasonable probabilities, had 

### the error not occurred, the outcome of the trial would have been materiallyaffected.'"4 The fact that Safeway was the victim of a significant organized retail shoplifting operation was already before the jury inunchallenged testimonydescribing the scope 

### of Safeway's efforts to investigate the thefts. Moreover, contrary to Mayfield's assertions, evidence that Safeway and other corporations lose millions of dollars to 

### theft likely came as no surprise to the jurors, reducing any likelihood that the evidence resulted in a prejudicial and unfairemotional appeal. 

### Finally, the jury saw video recordings of Mayfield committing the thefts on which three of the four charges were based. Mayfield repeatedly testified that he committed those three offenses. Heexpressed some uncertainty that he had been in 

### the Newcastle Safeway, but he never denied committing the offense, and the jury heard his recorded statement admitting that he took specific items from the

4 State v. Gresham. 173 Wn.2d 405, 433, 269 P.3d 207 (2012) (quoting State v. Smith, 106Wn.2d 772, 780, 725 P.2d 951 (1986)).No. 68508-2-1 / 7

Newcastle Safeway on March 7, 2009. The evidence of guilt was overwhelming; under the circumstances, there was no reasonable likelihood that the challenged evidence affected the outcome ofthe trial. Mayfieldcontends thatthe deputy prosecutorcommitted reversible misconduct during closing argument and rebuttal closing argument by improperly urging the jury 

### tofind him guiltybased on the amountofSafeway's general shopliftingdamages. He 

### argues that comments about the scope of Safeway's efforts to mark and track frequently stolen items, the fact that other businesses faced the same general 

### shoplifting problems, and the jury's "right to be angry" about the amount of money that Mayfield earned by selling the stolen itemspersuaded the jury to decide the case based on an emotional responseto the general shoplifting problem rather than on the
evidence. 

### A defendant claiming prosecutorial misconduct bears the burden of 

### establishing that the challenged conduct was both improper and prejudicial.5 Prejudice occursonly if"there is a substantial likelihood the instances ofmisconduct affected thejury's verdict."6 Wereview misconduct claims in the context of thetotal 

### argument, theevidence addressed, the issues inthecase, andthejuryinstructions.7 Ifthe defendantfails to object, however, we will notreview the alleged error unless the defendant demonstrates that the misconduct was "so flagrant and ill intentioned

5State v. Cheatam, 150Wn.2d 626, 652, 81 P.3d 830 (2003). 6State v. Pirtle. 127Wn.2d 628, 672, 904 P.2d 245 (1995). 

### 7State v. Boehninq, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).No. 68508-2-1 / 8

that no curative instructions could have obviated the prejudice engendered by the misconduct."8 Here, defense counsel failed to object to any of the alleged improper comments during closing argument. Mayfieldclaims that any objection or requestfor

a curative instruction would have been futile because the trial court overruled his objection to Blahato's testimony that Safeway's general loss from shoplifting was "millions" of dollars. But Mayfield fails to note that immediately after overruling that 

### objection, the trial court sustained defense counsel's objection when the deputy 

### prosecutor sought to enlarge the scope of the questioning by asking "who pays for [shoplifting] inthe long run?" 

### Nothing in the record suggests that additional objections during closing 

### argument or a request for an appropriate curativeinstruction would have been futile. The challenged comments were not so egregious as to engender incurable 

### prejudice.9 Mayfield fails to show that a timely objection and curative instruction would not have negated the potential prejudice. His claim of prosecutorial 

### misconductthereforefails, and "ouranalysis need go nofurther."10 Mayfield's contention that the deputy prosecutor violated a pre-trial order by 

### asking Ostheller how much he paid Mayfield in 2008 is without merit. Ostheller responded, "A hundred thousand." But Mayfield raised no objection to the question or the answer. Moreover, during cross-examination of Detective Ainsworth, defense

8State v. Belqarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988). 9See State v. Emery, 174Wn.2d 741, 764, 278 P.3d 653 (2012). 10 Emery, 174 Wn.2d at 764.

8No. 68508-2-1 / 9

counsel elicited Ainsworth's confirmation that the trafficking operation was "[fjairly 

### lucrative to Mr. Ostheller" and "[n]ot so lucrative to Mr. Mayfield." Defense counsel's 

### cross-examination clearlyopened the door to Ostheller's testimony. Mayfield fails to demonstrate any error. 

### Mayfield next contends that the trial court erred in admitting Blahato's testimony identifying him in the securitycameravideos. He argues that thetestimony improperlyusurped the jury's roleas finder of fact. 

### Prior to trial, Mayfield moved to exclude Blahato's proposed testimony 

### identifying Mayfield as the shoplifter in the security video from Newcastle Safeway. As Blahato explained, the security video was notavailable at the time oftrial. The trial courtruled that the testimony was admissible because Blahato was essentially 

### testifying as awitness towhat hehad seen. The court ruled that defense counsel could explore anydeficiencies inthefoundation for Blahato'stestimony during crossexamination. Defense counsel did notaddress the three security camera videos from the Factoria Safeway. 

### Attrial, Blahato described what he had seen in the Newcastle Safewayvideo. 

### The deputy prosecutor then played the Factoria videos for the jury. Without 

### objection, Blahato described what was occurring on the March 12, 2009 video. At theconclusion ofhis testimonyabouttheMarch 27, 2009 video, defenseobjected "to the narrative
.... The video speaks for itself." The trial court overruled the 

### objection, noting that defense counsel could cross-examine Blahato about the accuracyofhisobservations. Blahatothentestified abouttheApril 8, 2009video.No. 68508-2-1/10
Mayfield contends thatthe trial court erred in permitting Blahato to identify him
as the shoplifter inthe surveillance videos. He argues that because Blahato had not met Mayfield before trial, he was in no better position than the jury to determine whether Mayfield was the person inthe videos. A witness's testimony must be "based on personal knowledge, and a lay witness may give opinion testimony if it is (1) rationally based on the perception ofthe witness and (2) helpful to a clear understanding of the testimony or the fact in 

### issue."11 Opinion testimony identifying individuals in surveillance photographs runs "'the risk of invading the province of the jury.'"12 But such opinion testimony is admissible as long as "'there is some basis for concluding that the witness is more 

### likelytocorrectly identifythe defendantfrom thephotograph than is thejury.'"13 The security video from the Newcastle Safeway malfunctioned and was not 

### available for trial. Mayfield argues that the trial court erred in permitting Blahato to describe what he saw on the video because Blahato had not seen him in person 

### before the day of the trial. When asked about this duringcross-examination, Blahato explained that he had "seen Mr. Mayfield on prioroccasions." Defense counsel did 

### not make any further attempt to challenge the basis for Blahato's identification. On the record before this court, Mayfield has not identified any error in the admission of Blahato's testimony aboutthe Newcastle video.


### 11 State v. George. 150 Wn. App. 110, 117, 206 P.3d 697 (2009) (citing ER 602, 701). 

### 12 George. 150Wn. App. at 118 (quoting United States v. LaPierre. 998 F.2d 1460, 1465 (9th Cir. 1993)). 

### 13 George. 150Wn. App. at 118 (quoting State v. Hardy. 76Wn. App. 188, 190, 884 P.2d 8 (1994), affd, State v. Clark. 129 Wn.2d 211, 916 P.2d 384 (1996)).

10No. 68508-2-1 /11
Mayfield's challenge to testimony about the three Factoria videos also fails. 

### Defense counsel's belated objection involved only Blahato's "narrative" description of what was occurring inthe videos. Counsel did not challenge Blahato's identification of Mayfield as the individual inthe videos. Under the circumstances, the objection
was not sufficiently specific to alert the trial court to the argument that Mayfield is 

### raising on appeal.14 Moreover, defense counsel's failure to object on this basis was not surprising because Mayfield's identity was not disputed, and he repeatedly acknowledged that fact during his testimony. Consequently, even if Blahato's identification testimony was erroneously admitted, the errorwas harmless. Mayfield argues that cumulative error denied him the right to a fair trial. Because any error here was clearly harmless, the cumulative error doctrine does not apply. In his statement of additional grounds for review, Mayfield first contends that the evidence was insufficient to support his conviction for count I, the trafficking charge based on the March 7, 2009 theft at the Newcastle Safeway. He claims that he did not confess and that there was no evidence that he committed the theft. But Mayfield has failed to provide this court with a meaningful explanation ofthe alleged error.15



### 14 See Statev. Gulov. 104Wn.2d412, 422, 705 P.2d 1182 (1985) (objection must be sufficiently specific to preserve claim oferrorfor appeal). 

### 15 See RAP 10.10(c) (appellate court will not consider statement of additional grounds for review "if itdoes not inform the court of the nature and occurrence of alleged errors").

11No. 68508-2-1/12

In his recorded statement, Mayfield admitted stealing specific items from the Newcastle Safeway and then selling them for cash or drugs. Viewed inthe lightmost favorable to the State, that evidence was sufficientto permitthejury to find beyond a reasonable doubt that Mayfield knowingly possessed stolen property with the intent 

### to sell it to anotheror knowingly sold stolen property to another.16 The evidence was therefore sufficient to support the conviction for trafficking in stolen property in the first degree as charged for the March 7, 2009 incident. To the extent that Mayfield may be alleging that his trial testimony repudiated the recorded confession, his 

### contention raises a credibility issue that we cannot address on appeal.17 Mayfield's claim that the State proved only one count of trafficking is also without merit. He alleges that the State failed to establish that he sold the stolen items to Ostheller on four separate occasions. Butviewed inthe lightmostfavorable 

### to the State, Mayfield's confession established four separate occurrences of trafficking. 

### Finally, Mayfield contends that his convictions constituted the same criminal conductforpurposes of calculating his offenderscore. Butbecause he failed to raise 

### this issue atsentencing, he may not raiseitforthefirsttime onappeal.18 And in any event, the claim fails. "'Same criminal conduct'
. . . means two or more crimes that 

### require the same criminal intent, are committed at the same time and place, and



### 16 See RCW9A.82.050(1); 9A.82.010(19). 17 See State v. Fiser. 99 Wn.App. 714, 719, 995 P.2d 107 (2000) (an appellate court defers to the trier of fact on issues of credibility, conflicting testimony, and the persuasiveness ofthe evidence). 

### 18 Statev.Jackson. 150Wn.App. 877, 892, 209 P.3d 553 (2009).

12No. 68508-2-1/13


### involve the same victim."19 Mayfield's offenses occurred on fourseparate days. The trial court properly counted them as separate offenses. Affirmed.

STv^. 

# J

WE CONCUR:



### M

19 RCW9.94A.589(1)(a).

13