### FILED AUG 

### 12,2014 In tbe Office oftbe ClerkofCourt W A StateCourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DMSIONTHREE STATE OF WASHINGTON, ) No. 31354-9-II1 ) Respondent, ) ) v. ) ) GLENNE. SAPP, ) PUBLISHED OPINION ) Appellant. ) KORSMO, 1. - Photographic evidence figured prominently inthe prosecution of Glenn Sapp for various sexual offenses against a minor child. Hisprimary argument on appeal is a contentionthateitherhe ortheminor childfeatured inthe photographic evidenceneededto authenticatethe exhibits. We disagree and affmn. FACTS Aroundthe sametimethatthe Spokane County Sheriff's Office receivedreports that Glenn Sapphad sexually abused a minor, that office was given a digital camera and memory card containing digital photographs andvideorecordings depicting Glenn Sapp repeatedly sexually abusingthe child. Based onthis evidence, the State charged

### Mr. Sappwith several sexoffenses. The charges eventually included five counts offelony

### No. 31354-9-111 State v. Sapp

communication with a minor for immoralpurposes, two counts ofsexual exploitation ofa minor, two counts ofrape ofa child in the first degree, and two counts ofchild molestation in the first degree. Mr. Sapp waived his right to ajurytrial. Due to the tender age ofthe victim, she did not testify at the bench trial. As proofofthe crimes, the State offered the photographs and video recordings that itpulled from the digital camera and memory card. The victim's grandmother authenticated the evidence. The grandmother had known boththe victim and Mr. Sapp for a number ofyears. Based onherpersonal knowledge, the grandmother identified Mr. Sapp and her grandchild as the people in the exhibits, the victim's age at the time ofthe incidents, and the location where the exhibits.
were recorded-Mr. Sapp's residence. Mr. Sapp contested the grandmother's ability to authenticate the exhibits. He argued that authentication required testimony from a witness with knowledge ofthe events depicted and notjustthe people, time, and places depicted. The court overruled the objection. The court also rejected Mr. Sapp's argument thatthe State had not proven that he committed a prior felony sexoffense, one ofthe elements ofthe communication with a minor for immoralpurposes charges.

2No.3l354-9-1I1 State v. Sapp

The court thereafter found Mr. Sapp guilty on all counts, and entered detailed findings offact and conclusions oflaw as to each count. The court sentencedMr. Sapp to an aggravated exceptional indeterminate sentence of30 years to life. Mr. Sapp timely appealed to this court. ANALYSIS Mr. Sapp presents three arguments on appeal. His first argument generally challenges the authenticationby the grandmother and his second argument specifically challenges the sufficiency ofthe authentication ofsome ofthe exhibits used to convict him on the two counts ofrape ofa child in the first degree. Mr. Sapp also challenges the sufficiency ofthe evidence used to prove his prior sex offense conviction for the five counts offelony communication with a minor for immoral purposes. We address the two authentication challenges togetherbefore addressing the evidentiary sufficiency argument. Authentication We review atrial court's decision to admit or exclude evidence for abuse of discretion. Diaz v. State, 175 Wn.2d 457,462, 285 P.3d 873 (2012). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex reI. Carroll v. Junker, 79 Wn.2d 12,26,482P.2d 775 (1971). UnderER901, a party may
3No. 31354-9-111 State v. Sapp

authenticate a recording through, "evidence sufficientto support a finding that the matter in question is what its proponent claims." ER90l(a). Video recordings follow the same standards for authentication as photographs. State v. Newman, 4 Wn. App. 588, 593, 484 P.2d 473 (1971). To authenticate such evidence, the proponent mustput forward a witness "ableto give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portrays the subject illustrated." Id. at 593. The witness does not necessarily need to be the photographer. Id. Although the witness does not have to be the photographer, Mr. Sapp argues that the authenticating witness must still be a witness with personal knowledge ofthe events depicted. He relies on Saldivar v. Momah, 145 Wn. App. 365, 186 P.3d 1117 (2008). There the court upheld a lower court ruling excluding a video news report due to insufficient authentication. The report lacked sufficient authentication becausethe authenticating witnesses could only identify the person in the video, Charles Momah, but could not testify "asto when, where, and under what circumstances the recording was made." Id. at 399. Mr. Sapp thus argues that the testifying witness needed to have been present at the time ofthe events depicted.

4No. 31354-9-111 State v. Sapp
Saldivar, however, did not extend that far. An authenticating witness does not necessarily have to have beenpresent at the recording ofthe exhibit in orderto know "when, where, and under what circumstances the recording was made." A witness with priorknowledge ofthe people and places depicted in the exhibit could still establish whenthe exhibit was created based on the age ofpeople in the exhibit or things depicted in the background. To read such a stringentholding into Saldivar would require Washingtonto adopt the "pictorial testimony theory ofphotographs." Underthis theory, a photograph is a substitute for another person'stestimony and is only admissible with contemporaneous testimony from a witness who testifies that the photograph is an accurate representation ofhis personal knowledge. 3 JOHN HENRY WIGMORE, EVIDENCE INTRIALS AT COMMON LAW § 790, at 219 (James H. Chadbourn rev. ed. 1970). This theory long ago gave way to a second theory ofadmissibility-the "silent witness" theory ofphotograph admissibility. Id. at 219-20; 32A C.J.S. EVIDENCE § 1254 (2014); Higgins v. Ariz. Sav. andLoanAss'n, 90 Ariz. 55, 66, 365 P.2d 476 (1961) ("Nor need the verifying witness have been present when the picture was taken."); Hannewacker v. City of Jacksonville Beach, 419 So.2d 308, 311 (Fla. 1982). Underthis



### 5No. 31354-9-III State v. Sapp
theory, aphotograph is admissible "eventhough no human is capable ofswearing thathe personallyperceived what aphotographpurports toportray." WIGMORE, supra, at220. Notably, Wigmore's treatise highlights sex crime prosecutions as one ofthekey impetuses for adopting the silent witness theory. WIGMORE, supra, at 220. 

### In such cases, there might not be any witnesses otherthan a photograph. As an example, Wigmore uses People v. Doggett, 83 Cal. App. 2d405, 188 P.2d 792 (1948). In Doggett, a husband and wife were convicted solely on the testimony ofaphotograph depicting them engaged in a criminal act ofsexual perversion. In affirming the authentication ofthe photograph, the California Court ofAppeals held thatphotographs are sufficiently authenticated by other evidence establishingtheperiod oftime duringwhich the pictures were taken, the place where they were taken, and identifying the persons shown inthephotographs. Doggett, 83 CaL App. 2d at 408-lO. The Washington Supreme Courthas in practice followed the silent witness theory. In one photograph authentication case, the court held that a photograph was sufficiently authenticatedthrough a witness who accurately identified the location shown inthe picture, and another witness who talked about the store's standard practice of photographing customers. State v. Tatum, 58 Wn.2d 73, 75, 360 P.2d 754 (1961). Nowhere does Tatum indicate that there was testimony from a witness who identified the 

# I l 6No. 31354-9-111 State 

### v. Sapp

person in the picture as the defendant or any witness who testified that the scene depicted in the picture (the defendantpassing a forged check) accurately portrayedthe scene that had occurred, nor did the court indicate that such testimony was required. Rather, the courtpermittedthe photograph to speak for itselfonthose issues. In the analogous field ofaudio recordings, this court has explicitly held that authentication ofan audio recording does not require testimony from a party to the recording. "A sound recording, in particular, need not be authenticated by a witness with personal knowledge ofthe events recorded." State v. Williams, 136 Wn. App. 486, 500, 150 P.3d 111 (2007). "Rather, the trial court may consider any information sufficientto support the prima facie showing that the evidence is authentic." Id. We believe it is clear that Washington does not require photographs and other recordings to be authenticated by a witness present for their creation. Accordingly, we hold that the victim's grandmother adequately authenticated the photographs and video recordings in this case when she identified the individuals in the exhibits, the victim's approximate age, andthe location depicted in the exhibits. Mr. Sapp next argues that exhibits 21, 22, 28, 30, and 33 also lacked adequate authentication because the victim's grandmother did not identity the location depicted in those exhibits. While true, the victim's grandmother still providedthe identity ofthe
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### v. Sapp people in the exhibits and the victim's age, which established the timeframe for the acts depicted in the exhibits.) Although these authentications were not as complete as the other authentications in this case, it was still more information than what was provided in Saldivar. The trial court could reasonably conclude thatthe matter in question was what its proponent claimed, which is all that ER 901(a) requires. The trial court did not abuse its discretion in admitting the photographic evidence. Sufficiency o/theEvidence Finally, Mr. Sapp argues thatthe State failed to produce sufficient evidence to prove that he committedthe five charged counts offelony communication with a minor for immoral purposes. On a challenge to the sufficiency ofthe evidence, this court views the evidence in a light most favorable to the State and asks whether any rational trier of fact could have found the essential elements ofthe charged crime beyond a reasonable doubt. State v. Rempel, 114 Wn.2d 77,82,785 P.2d 1134 (1990). In relevant part, this crime requires proofthat "theperson has previously been convicted under this section orofa felony sexual offense." RCW 9.68A.090(2).
)We note thatthe grandmother did notprovide location information for these photographs because she was not asked to by either side. The record does not show that she lacked knowledge ofthe location depicted. In all likelihood, the location was the same as the rest ofthe exhibits-Mr. Sapp'sresidence. 

### 8No. 31354-9-111 State v. Sapp
"[W]hen criminal liability depends on the accused's being the person to whom a documentpertains
...the State must do more than authenticate and admitthe document; it also must show beyond a reasonable doubt 'thatthe person named therein is the same person on trial.'" State v. Huber, 129 Wn. App. 499, 502, 119 P.3d 388 (2005) (quoting State v. Kelly, 52 Wn.2d 676, 678, 328 P.2d 362 (1958)). The State cannot meet its burden by showing identity ofnames alone. Id. "Rather, it must show, by evidence independent ofthe record, thatthe person named therein is the defendant in the present action." Id. (quotations omitted). "The State can meet this burden in a variety ofspecific ways." Id. at 503. "Depending on the circumstances, these may include otherwiseadmissible bookingphotographs, booking fingerprints, eyewitness identification, or, arguably, distinctive personal information." Id. To prove the prior conviction element, the State submitted documents showing that Mr. Sapp had previously been convicted in Chelan County ofpossession of depictions ofa minor engaged in sexually explicit conduct. These documents included certified copies ofthe Chelan County charging information, Mr. Sapp's statement of defendant on plea ofguilty, and thejudgment and sentence. Mr. Sapp argues that the evidence is mere reliance on the identity ofnames. However, the documents show that the Glenn Eugene Sapp who pleaded guilty in Chelan
9No. 31354-9-111 State v. Sapp
County to two counts offelony possession ofdepictions ofa minor engaged in sexually explicit conducthad the same name, sex, race, and date ofbirth as the Glenn Eugene Sapp who was ontrial in Spokane County. We concludethatthe record contained sufficient evidence for a rational trier offact to find that Mr. Sapp had a prior felony sex. offense conviction. Affirmed.

WE CONCUR:


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