FILED 

AUG 12,2014 

In tbe Office of tbe Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DMSION THREE 


STATE OF WASHINGTON, ) No. 31354-9-II1 

) 

Respondent, ) 

) 

v. ) 

) 

GLENN E. SAPP, ) PUBLISHED OPINION 

) 

Appellant. ) 

KORSMO, 1. - Photographic evidence figured prominently in the prosecution of 

Glenn Sapp for various sexual offenses against a minor child. His primary argument on 

appeal is a contention that either he or the minor child featured in the photographic 

evidence needed to authenticate the exhibits. We disagree and affmn. 

FACTS 

Around the same time that the Spokane County Sheriff's Office received reports 

that Glenn Sapp had sexually abused a minor, that office was given a digital camera and 

memory card containing digital photographs and video recordings depicting Glenn Sapp 

repeatedly sexually abusing the child. Based on this evidence, the State charged Mr. 

Sapp with several sex offenses. The charges eventually included five counts of felony 
No. 31354-9-111 

State v. Sapp 

communication with a minor for immoral purposes, two counts of sexual exploitation of a 

minor, two counts of rape of a child in the first degree, and two counts of child 

molestation in the first degree. 

Mr. Sapp waived his right to a jury trial. Due to the tender age of the victim, she 

did not testify at the bench trial. As proof of the crimes, the State offered the 

photographs and video recordings that it pulled from the digital camera and memory card. 

The victim's grandmother authenticated the evidence. The grandmother had 

known both the victim and Mr. Sapp for a number of years. Based on her personal 

knowledge, the grandmother identified Mr. Sapp and her grandchild as the people in the 

exhibits, the victim's age at the time of the 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 of the 

events depicted and not just the people, time, and places depicted. The court overruled 

the objection. The court also rejected Mr. Sapp's argument that the State had not proven 

that he committed a prior felony sex offense, one of the elements of the communication 

with a minor for immoral purposes charges. 

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State v. Sapp 

The court thereafter found Mr. Sapp guilty on all counts, and entered detailed 

findings of fact and conclusions of law as to each count. The court sentenced Mr. Sapp 

to an aggravated exceptional indeterminate sentence of 30 years to life. Mr. Sapp timely 

appealed to this court. 

ANALYSIS 

Mr. Sapp presents three arguments on appeal. His first argument generally 

challenges the authentication by the grandmother and his second argument specifically 

challenges the sufficiency of the authentication of some ofthe exhibits used to convict 

him on the two counts of rape of a 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 of felony communication with a minor for immoral purposes. We address the two 

authentication challenges together before addressing the evidentiary sufficiency 

argument. 

Authentication 

We review a trial 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 12,26,482 P.2d 775 (1971). Under ER 901, a party may 

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No. 31354-9-111 

State v. Sapp 

authenticate a recording through, "evidence sufficient to support a finding that the matter 

in question is what its proponent claims." ER 90l(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 must put forward a witness "able to 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 of the 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 because the 

authenticating witnesses could only identify the person in the video, Charles Momah, but 

could not testify "as to 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 of the events depicted. 

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No. 31354-9-111 

State v. Sapp 

Saldivar, however, did not extend that far. An authenticating witness does not 

necessarily have to have been present at the recording of the exhibit in order to know 

"when, where, and under what circumstances the recording was made." A witness with 

prior knowledge of the people and places depicted in the exhibit could still establish 

when the exhibit was created based on the age of people in the exhibit or things depicted 

in the background. 

To read such a stringent holding into Saldivar would require Washington to adopt 

the "pictorial testimony theory of photographs." Under this theory, a photograph is a 

substitute for another person's testimony and is only admissible with contemporaneous 

testimony from a witness who testifies that the photograph is an accurate representation 

of his personal knowledge. 3 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON 

LAW § 790, at 219 (James H. Chadbourn rev. ed. 1970). 

This theory long ago gave way to a second theory of admissibility-the "silent 

witness" theory of photograph admissibility. Id. at 219-20; 32A C.J.S. EVIDENCE § 1254 

(2014); Higgins v. Ariz. Sav. and Loan Ass'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 ofJacksonville Beach, 419 So.2d 308, 311 (Fla. 1982). Under this 

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No. 31354-9-III 

State v. Sapp 

theory, a photograph is admissible "even though no human is capable ofswearing that he 

personally perceived what a photograph purports to portray." WIGMORE, supra, at 220. 

Notably, Wigmore's treatise highlights sex crime prosecutions as one ofthe key 

impetuses for adopting the silent witness theory. WIGMORE, supra, at 220. In such cases, 

there might not be any witnesses other than a photograph. As an example, Wigmore uses 

People v. Doggett, 83 Cal. App. 2d 405, 188 P.2d 792 (1948). In Doggett, a husband and 

wife were convicted solely on the testimony of a photograph depicting them engaged in a 

criminal act ofsexual perversion. In affirming the authentication ofthe photograph, the 

California Court of Appeals held that photographs are sufficiently authenticated by other 

evidence establishing the period of time during which the pictures were taken, the place 

where they were taken, and identifying the persons shown in the photographs. Doggett, 

83 CaL App. 2d at 408-lO. 

The Washington Supreme Court has in practice followed the silent witness theory. 

In one photograph authentication case, the court held that a photograph was sufficiently 

authenticated through a witness who accurately identified the location shown in the 

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 

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State v. Sapp 

person in the picture as the defendant or any witness who testified that the scene depicted 

in the picture (the defendant passing a forged check) accurately portrayed the scene that 

had occurred, nor did the court indicate that such testimony was required. Rather, the 

court permitted the photograph to speak for itself on those issues. 

In the analogous field of audio recordings, this court has explicitly held that 

authentication of an 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 of the events recorded." State v. Williams, 136 Wn. App. 486, 500, 

150 P.3d 111 (2007). "Rather, the trial court may consider any information sufficient to 

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, and the 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 provided the identity of the 

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No. 3 I 354-9-III 

State 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 that the 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/the Evidence 

Finally, Mr. Sapp argues that the State failed to produce sufficient evidence to 

prove that he committed the five charged counts of felony communication with a minor 

for immoral purposes. On a challenge to the sufficiency of the 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 proof that "the person has previously been 

convicted under this section or of a felony sexual offense." RCW 9.68A.090(2). 

) We note that the grandmother did not provide location information for these 

photographs because she was not asked to by either side. The record does not show that 

she lacked knowledge of the location depicted. In all likelihood, the location was the 

same as the rest of the exhibits-Mr. Sapp's residence. 

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No. 31354-9-111 

State v. Sapp 

"[W]hen criminal liability depends on the accused's being the person to whom a 

document pertains ... the State must do more than authenticate and admit the document; 

it also must show beyond a reasonable doubt 'that the 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 of names alone. Id. "Rather, it must show, by evidence 

independent of the record, that the person named therein is the defendant in the present 

action." Id. (quotations omitted). "The State can meet this burden in a variety of specific 

ways." Id. at 503. "Depending on the circumstances, these may include otherwiseadmissible booking photographs, 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 of a minor engaged in sexually explicit conduct. These documents included 

certified copies of the Chelan County charging information, Mr. Sapp's statement of 

defendant on plea of guilty, and the judgment and sentence. 

Mr. Sapp argues that the evidence is mere reliance on the identity of names. 

However, the documents show that the Glenn Eugene Sapp who pleaded guilty in Chelan 

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No. 31354-9-111 

State v. Sapp 

County to two counts of felony possession of depictions of a minor engaged in sexually 

explicit conduct had the same name, sex, race, and date of birth as the Glenn Eugene 

Sapp who was on trial in Spokane County. We conclude that the record contained 

sufficient evidence for a rational trier of fact to find that Mr. Sapp had a prior felony sex. 

offense conviction. 

Affirmed. 

WE CONCUR: 


Feag,5. 

J. 

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