### STATE 0^ WA^t^"'-1- 

## 2015APR2"/ ftH 10*- 38

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

v. DANNY HOWARD BRANDT, Appellant. DIVISION ONE No. 70204-1-1 UNPUBLISHED OPINION FILED: April 27, 2015 Dwyer, J. - The State charged Danny Brandtwith burglary inthe second 

### degree. Attrial, defense counsel sought to impeach a key State witness under ER 608(b) with specific instances ofconduct underlying 20-year-old misdemeanor convictions. Because the danger of unfair prejudice outweighed 

### any minimal probative value, and defense counsel had a full opportunity to challenge the witness's credibility through cross-examination, the trial court did not abuse its discretion or violate Brandt's right to confrontation when itexcluded 

### the proposed evidence. The contentions in Brandt's statement ofadditional grounds for review are also without merit. We affirm.
I 

### Atabout 5:00 a.m. on February 12, 2012, Louis Walker sat in his parked

van near Fifth Avenue South in Seattle's International District. From about a 

### block away, Walker saw a man, lateridentified as DannyBrandt, approach theNo. 70204-1-1/2 King Street entrance of Joe's Bar and Grill, thrust something between the door and the doorjamb, and force open the door. The man disappeared inside for about one to two minutes before coming out the same door. Walker called 911 and described the intruder as wearing a light-colored hooded sweatshirt, dark pants, and a Carharttjacket. Walker could not see the man's face. Seattle Police Officer Bruce Godsoe responded to the 911 report. He found that the south entrance door to the bar had been pried open. Inside, 

### Godsoe noticed that the front ofthejukebox had been pried open and the interior

was damaged. Godsoe reviewed the bar's surveillance video with several bar employees. 

### The video showed a man entering the bar, prying open the jukebox, and then 

### leaving. Neither Godsoenortheemployees could identify the manin thevideo. Carmelita Valenzuela, a manager and bartender at Joe's, looked at the 

### surveillance video on February 12. The police officers had already leftwhen she arrived for work at 8:00 or 9:00 a.m. Based on the man's clothes, short stature, 

### and long hair, Valenzuela recognized him as a regular customerwho had beenin the bar 10 or 20 times. Valenzuela knew that the man was a longshoreman, 

### drove a Mustang, and drankBud Light. The manoccasionally won whenplaying 

### pull tab numberfive and his namecould have been on the records that the bar keptfor the gambling commission. Valenzuela believed that she told the police onFebruary 12that she recognized the suspect as a regular customer. She -2-No. 70204-1-1/3 

### acknowledged, however, that she did nottell the police the other information she knew about the man. Detective John Crumb viewed the surveillance video on February 15, 

### 2012. Crumb described the suspect as a white male, 5'6" tall, and wearing tan 

### Carharttwork clothes, a stocking hat, and tan leather gloves. The man had long 

### hair, pronounced cheekbones, and athin, sunken face. Crumb observed a "light area" around the man's mouth, but could notdetermine whether itwas facial hair. 

### Crumb explained thatthedownward angle ofthesecurity cameras made it difficultto see the suspect'sface. Crumb was unable toidentify the suspect, and the case went inactive on February 21, 2012. 

### More than a month afterthe burglary, Valenzuela saw the suspect walking 

## pastthe bar. She immediately ran outside and confrontedthe man, telling him that, "We knowthatyou're the one that broke into thejukebox," and that she 

## recognized himfrom the video. The man replied, "Well, times are hard," and repeatedly apologized. Valenzuela did not contactthe police atthis time because she did not think itwould matter. 

### In July 2012, while OfficerGodsoe was investigating anotherburglary at Joe's, Valenzuela told him that shehad recently seenthe suspectfrom the 

## Februaryvideo and had confronted him outsidethe bar. Godsoe passed the information on to Detective Crumb, who reopened the investigation. 

### Crumb metwith Valenzuela atJoe's on July 19, 2012, and showed her a 

## photomontage containing Brandt's driver's license photo. Valenzuela identifiedNo. 70204-1-1/4

Brandt as the man in the surveillance video and the man she confronted outside Joe's. Valenzuela informed Crumb that she was "100 percent positive" of her identification. After Valenzuela's identification, Crumb met with Brandt for about 30 minutes. Crumb then reviewed the video and observed similarities between Brandt and the person in the video. Crumb also confirmed that Brandt owned a 2007 Mustang. The State charged Brandt with one count of burglary inthe second 

### degree. Prior to trial, defense counsel moved in limine to impeach Valenzuela under ER 608(b) with prioracts ofdishonesty. The defense relied on Valenzuela's three misdemeanor convictions from 1990, 1992, and 1994 for 

### providing false information to a police officer. Defense counsel argued that unlike ER 609, ER 608(b) contained no time limit for admissibility. The trial court denied the motion, concluding that the proposed evidence 

### was "irrelevant due to the passage oftime." The court laterclarified that itwas 

### excluding the convictions under both ER 608 and ER 609 because the prejudicial effect to the State outweighed the probative value to the defense. 

### Thejury found Brandtguilty as charged, and the court imposed a 60- month standard range term. II Brandt contends that the trial court violated his right to confrontation when 

### itexcluded evidence of the specific instances of conduct underlying Valenzuela's -4-No. 70204-1-1/5 prior misdemeanor convictions for providing false information to a police officer. He argues that the evidence was admissible under ER 608(b) to impeach the State's key witness and that the trial court erroneously concluded that the prejudicial effect of the evidence outweighed any probative value. Both the federal and state constitutions guarantee a criminal defendant the right to confrontation, including the right to conduct a meaningful crossexamination of adverse witnesses. State v. Darden. 145 Wn.2d 612, 620, 41 P.3d 1189 (2002). Butthe right to cross-examine adverse witnesses is not 

### absolute, and "[t]he confrontation right and associated cross-examination are 

### limited by general considerations of relevance." Darden, 145 Wn.2d at 620-21 

### (citing ER401, ER403). Wereview the trial court's limitation ofthe scope of cross-examination for an abuse of discretion. Darden, 145 Wn.2d at 619. ER 608(b) provides in pertinent part: 

### Specific instances ofthe conduct of a witness, for the purpose of attacking orsupporting the witness' credibility, other than conviction of crimeas providedin rule 609, may not be proved by extrinsic 

### evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness' characterfor truthfulness or untruthfulness. 

### The trial court has discretion under ER 608(b) to permit cross-examination of a 

### witness about conductprobative oftruthfulness, including specific instances of 

### conduct underlying convictions for dishonesty. State v. Clark, 143Wn.2d 731, 766, 24P.3d 1006(2001).

-5-No. 70204-1-1/6
Brandt sought to cross-examine Valenzuela about 1990, 1992, and 1994 misdemeanor convictions, which apparently involved providing false information and false names to police officers. "The use of an alias is a specific instance of conduct that may, depending upon circumstances, be probative of truthfulness or untruthfulness." State v. Johnson. 90 Wn. App. 54, 71, 950 P.2d 981 (1998). But to be admissible under ER 608(b), evidence must not only be probative of truthfulness, but also "not remote in time." State v. Wilson. 60 Wn. App. 887, 893, 808 P.2d 754 (1991). Brandt's proposed cross-examination involved the witness's conduct 

### occurring more than 20 years earlier. This was twice the number ofyears giving rise to the presumption ofinadmissibility for convictions under ER 609(b). 

### Although ER 608(b) does not contain a similartime limit forprior acts of dishonesty, the record contains no specific facts or circumstances illuminating howValenzuela's conduct 20 years ago affected her current veracity. The trial court did not abuse its discretion inconcluding that the danger of unfair prejudice 

### outweighed any minimal probative value. The courtdid notviolate Brandt's right

to confrontation. 

### Moreover, any error in limiting cross-examination was harmless. An error under ER 608 is harmless unless "within reasonable probabilities, had the error 

### not occurred, the outcome of the trial would have been materially affected." State v. Ferguson. 100 Wn.2d 131,137, 667 P.2d 68 (1983). The failure to allow cross-examination of a State's witness under ER 608(b) is an abuse of discretionNo. 70204-1-1/7 

### "ifthe witness is crucial and the alleged misconduct constitutes the only available 

### impeachment." Clark, 143 Wn.2d at 766. Ifthe defendant is otherwise able to impeach the witness, "there is less need for further impeachment on crossexamination." Clark, 143Wn.2dat766. 

### Defense counsel vigorously questioned Valenzuela about all aspects of her identification of Brandt as the man in the surveillance video. Counsel's 

### cross-examination explored the inconsistencies inValenzuela's accounts to 

### various people, herconfusion aboutwhen certain eventsoccurred, heradmitted failure totell thepolice specific details aboutthe suspect thatmight have helped themfind the man, herfailure totell the police about her encounter with the 

### suspectuntil they were investigating an unrelated burglary, and herapparent defensiveness in responding toquestioning. Underthecircumstances, thejury 

### had afull opportunityto assessValenzuela's credibility. There is no reasonable likelihood that the cross-examination about Valenzuela's conduct 20 years ago would have changed that assessment. Ill 

### In his statement ofadditional groundsfor review, Brandt contends that he 

### wasdenied his dueprocess rightto bepresentwhen thejury asked toviewthe surveillance videos during deliberations. Brandt argues that hehad a rightto be 

### presentsohe could object "to any improperaction on the partofthe prosecutor, 

## court, orjury." See generallv State v. Caliguri, 99Wn.2d 501, 509, 664 P.2d466

-7-No. 70204-1-1/8 (1983) (error to replay the videotape exhibit without notice to the parties or counsel and outside the presence of the defendant). A criminal defendant has a fundamental due process right to be present at all critical stages of a criminal proceeding. State v. Irbv. 170 Wn.2d 874, 880, 246 P.3d 796 (2011). A critical stage "is one where the defendant's presence 

### has a reasonably substantial relationship to the fullness of his or her opportunity 

### to defend against the charge." State v. Jasper. 158 Wn. App. 518, 539, 245 P.3d 228 (2010), affd, 174 Wn.2d 96, 271 P.3d 876 (2012). 

### Afterclosing arguments, the parties discussed how to proceed ifthe jury asked to view the surveillance videos after deliberations began. Defense 

### counsel requested a procedure that would provide court control over any access 

### to the CD containing the videos. The parties then agreed that upon request, the jury would view the videos inopen court. 

### When thejury asked toview the videos, the court contacted counsel, but not Brandt. Defense counsel appeared, asked whether Brandt needed to be 

### present, andinformed thecourt, "I have no authority towaive his presence." The court replied thatBrandtdid not need to be presentbecause "[i]t's not a critical 

### stage ofthe proceedings." Defense counsel raised noobjection, and thejury then viewed the videos. 

### Brandt's arguments rest on the erroneous assertion that thejury might have viewed videos that were not "entered into evidence." But Exhibit 4, the CD 

### containing the surveillance video files, was admitted into evidence in its entirety -8-No. 70204-1-1/9 without objection. During the parties' discussion of how to show the videos to the jury, the deputy prosecutor informed the court that two of the files on the CD

were blank, but that all of the remaining files had been shown to the jury during trial. Defense counsel raised no objection. Nothing in the record supports an inference that thejury viewed surveillance videos during deliberations that were either not admitted into evidence or not shown at trial. Any violation of Brandt's right to be present was harmless beyond a reasonable doubt. Seejrby, 170 Wn.2d at 885 (2011) 

### (violation of right to be present at trial is subjectto harmless error analysis). 

### Because Brandt fails to identify any prejudice, his claim that he was denied effective assistance when defense counsel failed to object to his absence also fails. Affirmed.

We concur: 

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