F )I S

OF APPEALS TIN I

STATE OF WASHIr.(110:4

2511 JIJ1_ I 0 fkli 9: 04

IN THE COURT OF APPEALS 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Defendant, ) UNPUBLISHED OPINION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 of evidence. A

detective was allowed to give his opinion that Everson was the person whose

image was captured in a surveillance video of the 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 of two men were captured by surveillance video as they were

burglarizing a yoga studio and a restaurant in Kirkland around 4 a.m. on January

20, 2015. The videotapes showed them approaching the restaurant from the
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outside, then crawling along the floor toward a safe. They fled when an alarm

was triggered.

Detective Clayton Slominski extracted still frame photographs of the faces

of the 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 of burglary 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.

At trial, Atwood and Rickey identified Bowman in the still image taken from

the surveillance video. Atwood testified that he recognized Bowman within

seconds of seeing the still image. He said he had known Bowman for eight years

and met with him about eight times. 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 met with him eight times,

including the day before the charged burglaries.

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The jury heard evidence derived from Bowman's cell phone records that

his cell phone pinged off a tower one half mile away from the location of the

burglaries at 3:35 a.m. the morning of the 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.

At trial, in addition to the testimony of Atwood and Rickey identifying

Bowman, Detective Slominski testified that Everson was one of the 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 spent with 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 of discretion.

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 of the witness and helpful to a clear understanding of the testimony or

the determination of a fact in issue. ER 701. A lay witness may give an opinion

concerning the identity of a person depicted in a surveillance photograph if there

is some basis for concluding that the witness is more likely to correctly identify

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the defendant from' the photograph than is the jury. State v. Hardy,76 Wn. App.

188, 190, 884 P.2d 8(1994), aff'd, 129 Wn.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

of the jury:

Lay opinion testimony of the type given by Miller is of

dubious value. The jury, after all, was able to view the surveillance

photos of LaPierre and make an independent determination

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 of the jury and unfairly prejudicing LaPierre. For these

reasons we have held that while lay opinion testimony of this sort is

sometimes permissible, "the use of lay opinion identification by

policemen or parole officers is not to 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 of the 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 of this sort. But this is not such a case.

Miller's level of familiarity 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,76 Wn. App. at 191. The officer

testified that he had known one defendant for "several years" and the other

defendant "for 6 or 7 years 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 of the 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,150 Wn. 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 defendant while he was getting out of a van and being

handcuffed and later while he was at the police station in an interview room.

George,150 Wn. App. at 119. It is not clear exactly how long the detective spent

observing either defendant. The detective could not make out facial 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 of the people in the van, and from speaking with them on the day of the

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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 of the

extensive contacts in Hardy"and did not support a finding that the officer knew

enough about the defendants to express an opinion that they were the robbers

shown on "the very poor quality video." George,150 Wn. App. at 119.

Here, Slominski interviewed Everson for about 45 minutes sitting 3 or 4

feet across from him at a small table in a small jail interrogation room. Three

days later, Slominski arrested Everson and spent about 15 minutes with him at

that time. 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 that the 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 yourself to the still images that you will have with you in evidence, to

that of Mr. Everson." Like in Hardy,the jury was free to disbelieve the detective's

testimony and reach its own conclusion on the issue of identification. Like in

Hardy, we reject the appellant's argument that the detective's opinion testimony

invaded the province of the 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 3 a.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 thought that

to be strange. There's no open businesses in the area at that time, 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 at that 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 that they 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 not evasive and did not try 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 of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the 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. Apart from 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 that the defendants "are not strangers to

one another. They know one another, they hang out together." 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 that the defendants were surveying possible locations to

commit a second, similar crime. Officer Szilagyi did say that finding Bowman and

Everson in the parking lot of closed businesses at three in the morning was "a

little bit suspicious," but he then testified they did not try 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 of discretion in the admission of Officer Szilagyi's testimony.

No costs will be awarded on appeal unless the State provides evidence

that Bowman's financial circumstances have significantly improved since the trial

court's finding of indigency. RAP 14.2.

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Affirmed.

Rec,V-e ei

WE CONCUR: ()

Alr-t ,,/ •

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