IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. DEMIKO DEJONE FANT, Appellant. tsj on o o —*c; ) No. 70115-1-1 ) DIVISION ONE 1 .-•'•'' 

### ) UNPUBLISHED OPINION 

### o S''t

ro [-2 ) FILED: June 9, 2014 C.r: Becker, J. — Impermissibly suggestive out-of-court identification 

### procedures, including showup procedures, violate due process where there is a substantial likelihood of irreparable misidentification. Here, though the 

### eyewitness initially saw the suspect's face for only a couple ofseconds, the trial court did not abuse its discretion in admitting evidence thatthe witness positively 

### identifiedappellant Demiko Fant at a showup an hour later. The court properly evaluated otherfactors indicating the reliability ofthe identification. 

### The State charged Fantwithresidential burglary based on eyewitness 

### identification byJonathan Kim at a showup. Before trial, Fant moved to suppress the identification on the ground thatthe showup procedure was unnecessarily 

### suggestive. Afterholding a CrR 3.6 hearing at whichKim testified, the court denied the motion to suppress. A jury convicted Fant as charged.No. 70115-1-1/2 Fant assigns error to the decision denying his motion to suppress. A trial court's admission ofan eyewitness identification of a criminal defendant is reviewed for abuse ofdiscretion. State v. Kinard, 109 Wn. App. 428, 431-35, 36 P.3d 573 (2001), review denied. 146 Wn.2d 1022 (2002). According to the undisputed findings, Kim's identification of Fant occurred in connection with a reported burglary on September22, 2011. Around 12:30 p.m., Kimwas standing in his backyard when he heard what sounded like 

### breaking glass coming from the direction of his neighbor's home. He walked to the front door and noticed an unfamiliar dark sedan parked on the streetwith a

man inthe driver's seat. After a few minutes, Kimwatched as several young
men walked from his neighbor's property towards the sedan. As they walked,



### one ofthe men made eye contact with Kim for one or two seconds. The men got into the car and the driver drove away. Kimfollowed in his own carfor 

### approximately six blocks. While he drove, Kim called 9-1-1 to report a burglary of 

### his neighbor's home. Atone point, Kim pulled within 10 feet ofthe car and relayed the first five digits ofthe license plate to the police overthe phone. Kim went home when the car he was following stopped inthe middle ofthe street and all occupants began to get out. The police met him at his home. Kim told the police thatthe person with whom he made eye contactwas "a light-skinned African American or Hispanic male, young, perhaps early 20's, with 

### 'frizzy' 'poofy' hair, wearing a white T-shirt." Kim heard thatthe police identified 

### the registered ownerofthe dark sedan, that his address was within a mile ofNo. 70115-1-1/3 

### Kim's home, and that the owner reported his carwas stolen shortly after Kim called 9-1-1. 

### Atsome point within an hour ofthe suspected burglary, an officer asked Kim to leave his home to see ifhe could identify a potential suspect. Kimagreed. The officer transported Kim to a cul-de-sac infront of Fant's home. The officer 

### told Kim the suspectwould be standing outside. Fantwas standing outside with another police officer. The car drove by slowly, at a distance ofapproximately 40 

### feet. After viewing Fantfor approximately 10 seconds, Kim told the officer that he was 100 percent certain that Fantwas the man with whom he made eye contact. Kimstated that Fant's hair and clothing were the same. Fant was arrested immediately. 

### Upon hearing the testimony, the trial court concluded thatthe showup 

### identification was unnecessarily suggestive, primarilybecause Kim was aware of Fant's connection to the vehicle he observed. The court nevertheless determined that the identification was admissible because it did not create a substantial risk ofirreparable misidentification: Here, Kimhad a clearview ofthe suspect in broad daylight, as the 

### suspectwas walking across Kim's neighbor's yard, and especially when the suspectturned and made eye contactwith Kim for 1-2 seconds. Kim was paying close attention, as he understood that he 

### might be witnessing a crime, and he planned to report it to the police. Kim'sdescription of the suspectto the police, while not terriblydetailed, was consistentwithFant's appearance at the show-up identification (includingthe clothing he was wearing, his skin tone, his hair, and his age), which occurred no more than an hour after Kim first saw the suspect. Any inaccuracies in his 

### description and recollection go to weight ratherthan to admissibility, and can be adequately addressed incross examination. And, Kim expressed 100% certainty in his identification ofFant as the personNo. 70115-1-1/4 

### who had made eye contact with him while leaving his neighbor's yard. Conclusion of Law 5. The trial court properly weighed the reliability ofthe identification, as 

### determined by reference to several factors, againstthe suggestiveness ofthe identification. Neil v. Biqqers. 409 U.S. 188, 198-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). The factors are: (1) the opportunity ofthe witness to view the criminal atthe time ofthe crime, (2) the witness' degree of attention, (3) the accuracy of his priordescription ofthe criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Fant contends that a proper consideration ofthe Biqqers factors establishes a substantial likelihood ofirreparable misidentification. He argues 

### that Kim's opportunity to view the suspectfrom his yard was insufficientto establish reliabilitybecause itlasted mere seconds. He asserts that Kim's attention was divided among the several young men who were walking from the 

### neighbor's house to the car. According to Fant, Kim'sdescription ofthe young man he observed was too general and its accuracy was undermined bythe absence of a reference to facial hairthough Fant had a mustache and goatee at 

### the time. Fant also points outthat Kim recalled seeing eyeglasses but could not rememberwhether itwas the suspect or Fantwho wore them. He concludes that 

### the trial court abused its discretion by allowing thejury to hear Kim's out-of-court and in-court identifications.No. 70115-1-1/5 The discrepancies noted by Fant are insufficientto compel suppression. The trial court correctly determined that any inaccuracies or inconsistencies in Kim's description and recollection would go to the weight of his evidence rather 

### than to admissibility and could be adequately addressed incross examination. We find no abuse ofdiscretion. Affirmed. 

# 'S^vjce\ft-hWE CONCUR: