       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                                                 tsj             on o
STATE OF WASHINGTON,                                                             o               —*c;

                                            )       No. 70115-1-1
                      Respondent,
                                            )       DIVISION ONE                      1           .-•'•''

              v.



DEMIKO DEJONE FANT,                         )       UNPUBLISHED OPINION               o            S''t
                                                                                       ro            [-2
                                                                                          C.r:
                      Appellant.            )       FILED: June 9,    2014



       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 of seconds, the trial

court did not abuse its discretion in admitting evidence that the witness positively

identified appellant Demiko Fant at a showup an hour later. The court properly

evaluated other factors indicating the reliability of the identification.

       The State charged Fant with residential burglary based on eyewitness

identification by Jonathan Kim at a showup. Before trial, Fant moved to suppress

the identification on the ground that the showup procedure was unnecessarily

suggestive. After holding a CrR 3.6 hearing at which Kim 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 of an eyewitness identification of a criminal defendant is

reviewed for abuse of discretion. 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 September 22, 2011. Around 12:30

p.m., Kim was 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 street with a

man in the driver's seat. After a few minutes, Kim watched as several young

men walked from his neighbor's property towards the sedan. As they walked,

one of the men made eye contact with Kim for one or two seconds. The men got

into the car and the driver drove away. Kim followed in his own car for

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

his neighbor's home. At one point, Kim pulled within 10 feet of the car and

relayed the first five digits of the license plate to the police over the phone. Kim

went home when the car he was following stopped in the middle of the street and

all occupants began to get out. The police met him at his home.

       Kim told the police that the person with whom he made eye contact was "a

light-skinned African American or Hispanic male, young, perhaps early 20's, with

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

the registered owner of the dark sedan, that his address was within a mile of
No. 70115-1-1/3


Kim's home, and that the owner reported his car was stolen shortly after Kim

called 9-1-1.

       At some point within an hour of the suspected burglary, an officer asked

Kim to leave his home to see if he could identify a potential suspect. Kim agreed.

The officer transported Kim to a cul-de-sac in front of Fant's home. The officer

told Kim the suspect would be standing outside. Fant was standing outside with

another police officer. The car drove by slowly, at a distance of approximately 40

feet. After viewing Fant for approximately 10 seconds, Kim told the officer that

he was 100 percent certain that Fant was the man with whom he made eye

contact. Kim stated that Fant's hair and clothing were the same. Fant was

arrested immediately.

       Upon hearing the testimony, the trial court concluded that the showup

identification was unnecessarily suggestive, primarily because 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 of irreparable misidentification:

       Here, Kim had a clear view of the suspect in broad daylight, as the
       suspect was walking across Kim's neighbor's yard, and especially
       when the suspect turned and made eye contact with 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's description of the suspect to the police, while not
       terribly detailed, was consistent with Fant's appearance at the
       show-up identification (including the 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 rather than to admissibility,
       and can be adequately addressed in cross examination. And, Kim
       expressed 100% certainty in his identification of Fant as the person
No. 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 of the identification, as

determined by reference to several factors, against the suggestiveness of the

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 of the witness to view the

criminal at the time of the crime, (2) the witness' degree of attention, (3) the

accuracy of his prior description of the 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 of the Biqqers factors

establishes a substantial likelihood of irreparable misidentification. He argues

that Kim's opportunity to view the suspect from his yard was insufficient to

establish reliability because it lasted 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's description of the young

man he observed was too general and its accuracy was undermined by the

absence of a reference to facial hair though Fant had a mustache and goatee at

the time. Fant also points out that Kim recalled seeing eyeglasses but could not

remember whether it was the suspect or Fant who wore them. He concludes that

the trial court abused its discretion by allowing the jury to hear Kim's out-of-court

and in-court identifications.
No. 70115-1-1/5


      The discrepancies noted by Fant are insufficient to 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 in cross examination.

We find no abuse of discretion.

       Affirmed.




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WE CONCUR:
