F ) I S OF APPEALS TIN I STATE OF WASHIr.(110:4 

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IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, ) ) Respondent, )

) v. ) ) KEVIN JAMES EVERSON, ) ) No.74548:4-I DIVISION ONE

Defendant, ) UNPUBLISHED OPINION

) TYLER BAM BOWMAN,and each of ) FILED: July 10,2017 them, ) ) Appellant. )

) 

### BECKER,J.— Appellant Tyler Bowman,convicted of burglary along with co-defendant Kevin Everson,alleges two errors in the admission ofevidence. A detective was allowed to give his opinion that Everson was the person whose image was captured in a surveillance video ofthe burglary. Another officer was allowed to testify that Bowman and Everson were seen together shortly after the alleged burglaries under suspicious circumstances. Finding no abuse of discretion, we affirm. The images oftwo men were captured by surveillance video as they were burglarizing a yoga studio and a restaurant in Kirkland around 4a.m.on January 20,2015. The videotapes showed them approaching the restaurantfrom theNo.74548-4-1/2

outside,then crawling along the floor toward a safe. They fled when an alarm
was triggered. Detective Clayton Slominski extracted still frame photographs ofthe faces ofthe two men from the video. He had the photographs sent to regional law enforcement agencies to see if anyone might be able to identify the suspects. Everett detective Michael Atwood saw the photographs,recognized Bowman, and contacted Slominski. Slominski then e-mailed the photographs to Staci Rickey, Bowman's community corrections officer, who also recognized Bowman. Three weeks later, Bothell police officer Michael Szilagyi contacted Slominski and said he had seen Bowman with Kevin Everson. Slominski pulled Everson's driver's license photo and concluded that Everson was the other man in the surveillance video.

- Bowman and Everson were each charged with two counts ofburglary in the second degree. They were tried together. Neither testified. The primary issue was whether they had been properly identified as the men in the video. Attrial,Atwood and Rickey identified Bowman in the still image taken from the surveillance video. Atwood testified that he recognized Bowman within seconds ofseeing the still image. He said he had known Bowman for eight years and metwith him about eighttimes. He said he recognized Bowman's distinctive sharp jawline and cheekbones. Rickey testified that she too recognized Bowman's sunken cheeks and distinct nose and jawline in the still image. She said she had known Bowman for over a year and had metwith him eight times, including the day before the charged burglaries.

2No.74548-4-1/3 The jury heard evidence derived from Bowman's cell phone records that his cell phone pinged offa tower one half mile away from the location ofthe burglaries at 3:35 a.m.the morning ofthe burglaries. The jury found Bowman and Everson guilty as charged. Bowman appeals. IDENTIFICATION OF EVERSON Before trial, Bowman and Everson moved to prevent the State's witnesses from identifying them in the surveillance video. The court denied the motion. Attrial, in addition to the testimony ofAtwood and Rickey identifying Bowman,Detective Slominski testified that Everson was one ofthe men depicted in the video. Bowman joined Everson's motion for a mistrial alleging that allowing Slominski to make this identification of Everson was prejudicial error. The court denied the motion:"I think that the time spentwith the defendant . . . and the close proximity between the defendant and the detective warrant his ability to make a lay opinion about who he believes is depicted in the surveillance video."Bowman assigns error to this ruling. We review for abuse ofdiscretion. State v..Mapers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). A lay witness may give opinion testimony if it is rationally based on the perception ofthe witness and helpful to a clear understanding ofthe testimony or the determination ofa fact in issue. ER 701. A lay witness may give an opinion concerning the identity ofa person depicted in a surveillance photograph ifthere is some basis for concluding thatthe witness is more likely to correctly identify

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the defendantfrom'

the photograph than is the jury. State v. Hardy, 76 Wn.App. 188, 190,884 P.2d 8(1994),aff'd, 129Wn.2d 211,916 P.2d 384 (1996). Slominski stated his opinion that Everson was the person pictured after having spent only an hour with Everson in person. The Ninth Circuit has discussed the reasons why such testimony runs the risk of invading the province ofthe jury: Lay opinion testimony ofthe type given by Miller is of dubious value. The jury,after all, was able to view the surveillance photos of LaPierre and make an independentdetermination whether it believed that the individual pictured in the photos was in fact LaPierre. Miller's testimony therefore ran the risk of invading the province ofthe jury and unfairly prejudicing LaPierre. For these reasons we have held that while lay opinion testimony ofthis sort is sometimes permissible,"the use of lay opinion identification by policemen or parole officers is notto be encouraged,and should be used only if no other adequate identification testimony is available to the prosecution." United States v. Butcher, 557 F.2d 666,670 (9th Cir. 1977). ...

. :.There was no evidence that LaPierre's courtroom appearance and his appearance at the time ofthe robbery were significantly different. Moreover, Miller not only did not know LaPierre, he had never even seen him in person. Miller's knowledge of LaPierre's appearance was based entirely on his review of photographs of LaPierre and witnesses'descriptions of him. We can perhaps imagine a hypothetical scenario in which a witness who knew a defendant only through photographs nonetheless had become sufficiently familiar with his appearance to give lay opinion testimony ofthis sort. Butthis is not such a case. Miller's level offamiliarity with LaPierre's appearance falls far short of that required by our cases and by Rule 701's requirement of helpfulness. Whether the person sitting before the jury was the one pictured in the surveillance photographs was a determination properly left to the jury. United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993). Notwithstanding these concerns,we held in Hardy that an officer's opinion testimony was properly admitted. In Hardy, a consolidated appeal,a police

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officer identified two defendants as the individuals shown on a "somewhat grainy videotape"that was introduced at trial. Hardy, 76Wn.App.at 191. The officer testified that he had known one defendantfor "several years"and the other defendant "for 6 or 7years and considered him a friend." Hardy, 76 Wn.App.at 191-92. Affirming,this court held the trial court did not err in admitting the officer's identification testimony. Because ofthe officer's longstanding relationship with each defendant,the officer was in a better position than was the jury to determine whether they were the persons shown in the videotape. Thus, the officer's testimony "was helpful to the jury." Hardy, 76 Wn.App.at 191. Bowman argues that his case is more like State v. George, 150Wn.App. 110,206 P.3d 697,review denied, 166 Wn.2d 1037(2009). In George, the trial court abused its discretion in allowing a detective to identify the two defendants

as the individuals depicted in a surveillance video of a motel robbery. George, 150 Wn.App.at 119. The detective had observed one defendant as he got out of a van and ran away,and at a hospital later that evening. The detective had observed the other defendantwhile he was getting out of a van and being handcuffed and later while he was at the police station in an interview room. George, 150Wn.App.at 119. It is not clear exactly how long the detective spent observing either defendant. The detective could not make outfacial features in the surveillance video. He identified the defendants in the video by "each defendant's build, the way they carried themselves,the way they moved,what they were wearing,how they compared to each other,and how they compared to the rest ofthe people in the van,and from speaking with them on the day ofthe

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crime." George, 150 Wn.App.at 119 (footnote omitted). On appeal,the court held that the detective's contacts with the defendants fell "far short ofthe extensive contacts in Hardy" and did not support a finding that the officer knew enough aboutthe defendants to express an opinion thatthey were the robbers shown on "the very poor quality video." George, 150 Wn.App.at 119. Here,Slominski interviewed Everson for about45 minutes sitting 3or 4 feetacross from him ata small table in a small jail interrogation room. Three days later, Slominski arrested Everson and spent about 15 minutes with him at thattime. Slominski had not known Everson previously, but he had a better opportunity to become familiar with Everson's appearance than was the case in George. Another difference from George is thatthe image Slominski had for comparison showed Everson's facial features fairly clearly. Slominski's face-toface interview of Everson and his opportunity to observe him at close quarters while arresting him provide a tenable basis for concluding that Slominski was more likely than the jury to correctly identify Everson from the video images. The jury viewed the surveillance video and the still images captured from the video,and had Everson's driver's license photo to use for comparison as well. In closing,the State asked the jury "to look at the video and 'make the cornparison yourselfto the still images that you will have with you in evidence,to that of Mr. Everson." Like in Hardy, the jury wasfree to disbelieve the detective's testimony and reach its own conclusion on the issue of identification. Like in Hardy, we reject the appellant's argumentthat the detective's opinion testimony invaded the province ofthe jury.No.74548-4-1/7
Because there was some basis for concluding that Slominski was more likely to correctly identify Everson than was the jury,the trial court did not abuse its discretion in allowing Slominski to identify Everson in the video. POSTBURGLARY ENCOUNTER Before trial, Bowman moved to exclude Officer Szilagyi's testimony about his encounter with Bowman and Everson a few weeks after the burglary. The trial court denied the motion. Officer Szilagyi testified that he was on patrol in Bothell around 3a.m.on February 12,2015,when he saw Bowman and Everson walking together through
a parking lot of closed businesses. He approached them because "I thoughtthat to be strange. There's no open businesses in the area at thattime,and it's not really a pedestrian traffic area. So it seemed a little bit suspicious to me that there would be two people walking through the parking lot atthat time." They gave him their names,and he confirmed the names were correct. He testified the men told him they were waiting for a friend so thatthey could check into a nearby hotel room,and he said there were in fact two hotels fairly nearby. The officer said his entire contact with the men lasted two to three minutes. He said the men were notevasive and did nottry to run away. Bowman argues that Officer Szilagyi's testimony was irrelevant and unfairly prejudicial. "Relevant evidence"means evidence having any tendency to make the existence ofanyfactthat is of consequence to the determination ofthe action
more probable or less probable than it would be withoutthe evidence. ER 401.

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Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. ER 403. The State had to prove Bowman and Everson were the burglars pictured

on the surveillance video. Apartfrom the video itself, Officer Szilagyi's testimony

was the only evidence linking the two defendants. As the State argued in closing,the officer's testimony showed thatthe defendants "are notstrangers to
one another. They know one another,they hang outtogether." This made it

more probable that Bowman and Everson were the two men shown in the surveillance video. Bowman argues that the evidence was extraordinarily prejudicial because it suggested to the jury thatthe defendants were surveying possible locations to commit a second,similar crime. Officer Szilagyi did say thatfinding Bowman and Everson in the parking lot ofclosed businesses at three in the morning was "a little bit suspicious,"but he then testified they did nottry to avoid him,they provided proper identification, and they had a plausible reason for 

### being there. The State used the officer's testimony only as evidence that Bowman and Everson knew each other. Because Bowman has not shown that the probative value was substantially outweighed by the danger of unfair prejudice,we find no abuse ofdiscretion in the admission of Officer Szilagyi's testimony. No costs will be awarded on appeal unless the State provides evidence that Bowman'sfinancial circumstances have significantly improved since the trial court's finding of indigency. RAP 14.2.

8No.74548-4-1/9 Affirmed. 

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WE CONCUR: () 

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