FILED 

### COURT OF APPEALS DIVISION II 2OJ51 R 17 

### AM 8: L2



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, DIVISION II
Respondent,

v. SCOTT DOUGLAS STARGEL, Appellant. No. 45721 -1 - II

UNPUBLISHED OPINION
WoRSwICK, J. — 

### Ajury returned verdicts finding Scott Stargel guilty ofsecond degree theft and second degree vehicle prowling. Stargel appeals his convictions, asserting that (1) the 

### trial court erred bydenying his motionto suppress evidencethatthevictim had identified him in a photographic montage, which montage Stargel contends was impermissibly suggestive; and (2) the State failed to present sufficient evidence ofthe value of stolen items in which to support his second degree theft conviction. Because the photographic montage used to identify Stargel was 

### not impermissibly suggestive, and because the State presented sufficient evidence from which 

### thejury could have reasonably concluded thatthe items Stargel stole were valued in excess of 750, we affirm Stargel' s convictions.No. 45721 -1 - II

FACTS On April 15, 2011, Dalton Hembroffdrove to a Puyallup Subway restaurant to purchase lunch. When Hembroffparked and exited his truck, he made eye contact with a man who appeared suspicious to Hembroff. The man was standing in front ofa blue car that was parked next to Hembroffs truck. Hembroff locked his truck and entered the restaurant. When Hembroff exited the restaurant a few minutes later, he saw that some items had been taken from 

### his truck. Hembroff saw thatthe blue car previously parked next to him was " briskly" leaving the parking lot, and he decided to follow the car. Report of Proceedings ( RP) ( Nov. 6, 2013) at 

### 30. Hembroff called 911 while continuing to follow the blue car; he stopped following the car after the 911 operator instructed him to do so. 

### Shortly thereafter, Hembroffmetwith Puyallup Police Officer Greg Reiber atthe 

### Subway parking lot and gave Reiberadescription ofthe theft suspect. Hembroffdescribed the suspect as a " dirty or scruffy" six foot tall white male with tanned skin who was approximately 30 years old, weighed 180 pounds, and had short brown hair. The following week, Hembroff 

### obtained security video footagethat showed the theft ofitems from his truck,and he gave the footage to the police. 

### On January 9, 2012, Puyallup Police Detective Michael Lusk contacted Hembroffto see 

### ifhe could identifythe theft suspectfrom a photographic montage. Lusk presented Hembroff with a photographic montage containing Stargel' s photograph and the photographs offive other males. Hembroff identified Stargel as the theft suspect.

2No. 45721 -1 - II



### On February 28, 2013, the State charged Stargel with second degree theft and second 

### degree vehicle prowling. Before trial, Stargel moved to suppress evidence that Hembroffhad identified him in a photographic montage, which motion the trial court denied. Hembroff, Reiber, and Lusk were the only witnesses at trial, and each testified 

### consistentlywith the facts stated above. Additionally, Hembrofftestified thatthe items stolen from his truck included anew umpire jacket valued at $ 100, two textbooks that cost $80 to $ 100 

### each, and a laptop computer, which computer Hembroffstated he had purchased for $900 less than a year before it was stolen. After the State rested its case, Stargel moved to dismiss his second degree theft charge, asserting that the State failed to prove with sufficient evidence that the combined value ofthe stolen items exceeded $750. The trial court denied Stargel' s motion to 

### dismiss. Thejury returned verdicts finding Stargel guilty ofsecond degree theft and second degree vehicle prowling. Before sentencing, Stargelfiled a CrR 7.4 motion for arrest of 

### judgment, again asserting thatthe State failed to presentsufficient evidence thatthe items he stole were valued in excess of $ 750, which motion the trial court denied. Stargel appeals his
convictions. ANALYSIS I. SUPPRESSION OF IDENTIFICATION EVIDENCE Stargel first contends thatthe trial court erred by failing to suppress evidence thatthevictim had identified him in a photographic montage. We disagree. We review a trial court' s decision to admit evidence of a victim' s out - of - court identification ofthe defendant for an abuse ofdiscretion. State v. Kinard, 109 Wn. App. 428,

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432, 36 P. 3d 573 ( 2001). 

### We apply atwo - parttest to determine whether atrial court abused its 

### discretion by admitting evidence that the defendant was identified in a photographic montage. First,the defendant bears the burden ofdemonstrating that the identification procedure was impermissibly suggestive. State v. Linares, 98 Wn.App. 397, 401, 989 P. 2d 591 ( 1999) ( citing State v. Vaughn, 101 Wn.2d 604, 682 P.2d 878 ( 1984)). An out - of - court photographic 

### identification procedure is impermissibly suggestive ifthe procedure directs undue attention to a particular photograph. Kinard, 109 Wn. App. at 432 - 33. " Minor differences in the photos" are 

### insufficient to demonstrate thatthe identification procedure was impermissibly suggestive. State

v. Eacret, 94 Wn.App. 282, 285, 971 P. 2d 109 ( 1999). Second, ifthe defendant demonstrates 

### that the identification procedure was impermissibly suggestive, we mustthen determine whether such suggestiveness created a substantial likelihood of irreparable misidentification considering the totality ofthe circumstances. Linares, 98 Wn. App. at 401. In making this determination, we
consider:

1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' s degree of attention; (

### 3) the accuracy ofthe witness' s prior description of the criminal; (

### 4) the level ofcertainty demonstrated atthe confrontation; and (5) the time between the crime and the confrontation. Linares, 98 Wn.App. at 401. If Stargel fails to show that the photographic identification 

### procedure used here was impermissibly suggestive, our inquiry ends, and we need not analyze 

### the second part ofthe test. Eacret, 94 Wn. App. at 285 (citing Vaughn, 101 Wn.2d at 610 -11). Here, the photographic montage at issue pictured six white males with similar features. ° 

### Each ofthe men pictured in the photographic montage appeared to be approximately 30 years of age with short to medium brown or black hair. Stargel and all but one ofthe other men pictured
4No. 45721 -1 - II



### had short facial hair. Additionally, each ofthe men were pictured in a booking photograph with 

### asimilar gray background; three ofthe men were wearing what appears to be an orangejail uniform and the remaining three, including Stargel,were wearing what appears to be a grayjail uniform. Stargel asserts that his photograph differed from the remaining photographs in three ways: ( 

### 1) his photograph appears to have been shot from closer up such that his head occupies a larger portion of the photograph than the other men; (2) his photograph has a lighter background; and (3), 

### he is the only man pictured with avisible tattoo on his neck. We hold that these minor differences are insufficient to demonstrate that the photographic montage identification 

### procedure used here was impermissibly suggestive. Eacret, 94 Wn.App. at 285. In reaching 

### this holding, we are guided by prior cases addressing this issue.

For example, in State v. Weddel, 29 Wn.App. 461, 474 - 75, 629 P. 2d 912 ( 1981.), we held 

### that a photographic montage was not impermissibly suggestive where (1) the subjects were photographed against different backgrounds, with only the defendant photographed against an 

### off - white background with an electrical panel showing; and (2) the defendant' s photograph was a quarter - inch widerthan the other subjects' photographs. Although we stated thatthe difference in the background ofthe defendant' s photograph was " troubling," and that the photographic montage was " not completely free of possible suggestiveness," we nonetheless held that the montage was not " so impermissibly suggestive as to deny defendant due process of law." 29 Wn.App. at 475 -76. 

### In so holding, we reasoned thatthe identifying witness' s identification of 

### the defendant was not influenced bythe slight differences in the photographs. 29 Wn.App. at 475.

5No. 45721 -1 - II Similarly, in State v. Hanson, 46 Wn. App. 656, 666 - 67, 731 P.2d 1140 ( 1987), Division One ofthis court held that a photographic montage was not impermissibly suggestive where ( 1) the defendant' was one of only two subjects photographed with Polaroid film, and (2) " the subjects var[ ied] in age and appearance more than is desirable." In holding that the photographic montage identification procedure was not impermissibly suggestive, the Hanson court reasoned that the variations in the photographs " did not suggest that [the defendant] was a more likely suspect than the others displayed." 46 Wn.App. at 666 - 67. The Hanson court also relied on the 

### identifying witness' s testimony "that no one drew her attention to any ofthe photos and that she felt free not to pick any ofthe subjects displayed in the montage." 46 Wn.App. at 667. Finally, in State v. Vickers, 148 Wn.2d 91, 118, 59 P. 3d 58 ( 2002), our Supreme Court 

### held that a photographic montage was not impermissibly suggestive where ( 1) the defendant was 

### depicted in a Department ofLicensing photograph whereas the remaining five subjects were depicted in booking photographs, (2) the background ofthe defendant' s photograph was lighter 

### than the other photographs, and (3) the defendant was the only subject in the montage who was 

### notwearing coveralls. Our Supreme Court concluded thatthe differences between the defendant' s photograph and the remaining subjects' photographs was too slight to be 

### impermissibly suggestive, reasoning that each ofthe photographs appeared to be the same size and that each subject was a male ofapproximately the same age with dark scalp and facial hair. Vickers, 148 Wn.2d at 119.No. 45721 -1 - II Here, the differences between Stargel' s photograph and the remaining subjects' photographs is less pronounced than those differences identified and determined to be permissible in Weddel, Hanson, and Vickers. Although Stargel' s photograph contained a background that was lighter than the remaining subjects' photographs, each ofthe photographs 

### had the same gray background color, and the difference in the background lightness ofStargel' s photograph when compared to two ofthe other subjects' photographs is so minor as to be nearly indiscernible. The difference in Stargel' s head size when compared to the other photographs is 

### also slight and did not suggestthat he " was a more likely suspectthan the others displayed." 

### Hanson, 46 Wn.App. at 667. Finally,the factthat Stargel's photograph was the only one in which the subject had a neck tattoo did not render the photographic montage impermissibly suggestive because Hembrofftestified that he did not see whether the theft suspect had a neck tattoo when he first saw him, and because Hembrofftestified thatthe presence ofthe necktattoo 

### in Stargel' s photograph did not play a role in his identifying Stargel as the theft suspect. Because the photographic montage used hereto identify Stargel was not impermissiblysuggestive,the trial court did not abuse its discretion by admitting the out - of - court identification evidence at trial. II. SUFFICIENCY OF THE EVIDENCE Next, Stargel contends that the State failed to present sufficient evidence that the items he stole exceeded $750 in value, an essential element of second degree theft. Again we disagree. 

### Evidence is sufficientto support a guilty verdict ifany rational trier offact, viewing the
evidence in the light most favorable to the State, could find the elements of the charged crimeNo. 45721 -1 - II

beyond a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420 - 21, 5 P. 3d 1256 (2000). 

### We interpret all reasonable inferences in the State' s favor. State v. Hosier, 157 Wn.2d 1, 8, 133 P. 3d 936 (2006). 

### Direct and circumstantial evidence carry the same weight. State v. Varga, 151 Wn.2d 179, 201, 86 P. 3d 139 ( 2004). 

### Credibility determinations are forthe trier offact and are 

### not subjectto review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 ( 1990). To convict Stargel of second degree theft as charged here, the State had to prove beyond a reasonable doubt that he ( 1) wrongfully obtained or exerted control over the property of 

### another (2) exceeding $750 in value but not more than $5,000 in value (3) with intentto deprive the person of his or her property. RCW 9A.56. 020( 1)( a); former RCW 9A. 56. 040( 1)( a) ( 2009). Stargel challenges only the sufficiency of evidence in support of the second element — that the 

### value ofthe stolen property exceeded $750 in value.

Former RCW 9A.56. 010( 18)( a) ( 2006) defined "[ v] alue" as " the market value ofthe property or services at the time and in the approximate area of the criminal act." " Market value" 

### is theprice that awell-informed buyer would payto awell - informed seller. State v. Kleist, 126 Wn.2d 432, 435, 895 P. 2d 398 ( 1995). It is well established in this state that an owner of property may testify to the property' s value "' 

### whether he [or she] is generally familiarwith such
values or not. "' State v. Hammond, 6 Wn.App. 459, 461, 493 P. 2d 1249 ( 1972) ( quoting 3 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 716, at 56 (James H. Chadbourn rev.
ed. 1970)). 

### Additionally, evidence ofthe retail price ofthe stolen property, alone, may be sufficient to establish the value ofthe property. State v. Ehrhardt, 167 Wn.App. 934, 944, 276 P. 3d 332 (2012). And, "[

### t]he price paid for an item ofproperty, ifnot too remote in time, is

8No. 45721 -1 - II

proper evidence of value." State v. Melrose, 2 Wn. App. 824, 831, 470 P. 2d 552 ( 1970). The State need not present direct evidence of the value of stolen property, rather, "

### thejury may draw reasonable inferences from the evidence, including changes in the condition ofthe property that
affect its value." 

### Ehrhardt, 167 Wn.App. at 944. Thejury may also rely on its "ordinary experience and knowledge" when determining the market value ofstolen property from the evidence presented. Melrose, 2 Wn. App. at 832. 

### Here, Hembrofftestified about the value ofitems stolen from his truck, stating that his

new umpire jacket was valued at $ 100, two text books were $80 to $ 100 each, and that he had 

### purchased his laptop computer for $900 less than one year before itwas stolen. Stargel contends that Hembroffs testimonywas insufficientto supportthe value element ofsecond degreetheft because thetestimony did not establish the marketvalue ofthe laptop computer and textbooks' at the time he stole them. Stargel does not contest that the State presented sufficient evidence from which thejury could find that the market value of the umpire jacket was $ 100.


### 1 As the following exchange shows, it is unclearwhether Hembroffhad testified asto the textbooks' purchase price or to their market value:

State]: What was the value ofthe umpire jacket? Hembroff] : $ 100. State]: How about the textbooks? Do you know about how much it was? Hembroff]: Probably, give or take, $ 80 to $ 100 a piece. State] : How many were there? Hembroff]: I believe two. State]: So somewhere between $ 160 to $200 worth of books? Hembroff] : Correct. RP (Nov. 6, 2013) at 25 -26. Although unclear, for the sake of argument we treat Hembroff's testimony as establishing the textbooks' purchase price. 9No. 45721 -1 - II



### Accordingly,to uphold his second degree theft conviction, the State must have presented sufficient evidence that the combined market value ofthe stolen text books and laptop computer at the time ofthe theft exceeded $650. 

### Citing to Ehrhardt, 167 Wn.App. 934, Stargel asserts that we must reverse his conviction for lack of sufficient evidence, because the State failed to present evidence of " what the
condition or depreciation of these items might be" and, thus, "[ t]here was no evidence from
which thejury could infer their current value." Br. ofAppellant at 15. In Ehrhardt, a nonowner 

### witness testified about the purchase price ofstolen professional construction tools that had been
used in professional construction projects for about three years prior to the theft. 167 Wn. App. 

### at 938, 946 -

47. In reversing the appellant's second degree theft conviction for lack ofsufficient evidence in support ofthe value element, we reasoned that the State failed to present any 

### evidence from which thejury could infer "whetherthe tools even worked, let alone what effect their condition had on their market value." Ehrhardt, 167 Wn.App. at 947. 

### Here, in contrastwith Ehrhardt, Hembrofftestified that atthe time ofthe theft, he was a 

### college student and wasthen using the textbooks and his laptopcomputer in preparation for his 

## upcoming final exams. He also testifiedthat he purchased his laptop computer for $900 less than ayear before it was stolen, and that he stored his class notes on that computer. Based on this 

### testimony,thejury could reasonably inferthatthe textbooks were less than a semester old and were still being utilized in a college course at the time ofthe theft. Hembroffs testimony also 

### permitted thejury to reasonably inferthatthe laptop computerwas in working condition atthe time ofthe theft. Unlike in Ehrhardt, here the State presented sufficient evidence ofthe

10.No. 45721 -1 - II

condition ofthe stolen items from which thejury could rely on its " ordinary experience and 

### knowledge" to find thatthe combined value ofthe textbooks and laptop computer exceeded $650 in value when accounting for depreciation. Melrose, 2 Wn.App. at 832. Accordingly,we affirm Stargel' s convictions. 

### Amajority ofthe panel having determinedthatthis opinion will not be printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

J • L Jrgr A.C.J.

Sutton, 

# 1,c.

11 Worswick, J.

# CF.