     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

STATE OF WASHINGTON,                             No. 72454-1-1

                      Respondent,



TRAVIS LEAR,                                     UNPUBLISHED OPINION
                                                                                           CO



                     Appellant.                  FILED: January 19, 2016


       Verellen, A.C.J. — Travis Lear contends that impermissibly suggestive out-of-

court identification procedures violated his right to due process. But substantial

evidence supports the trial court's determination that the identifications were reliable

and admissible despite any suggestive procedures. Lear's contentions that the

predatory offense statute, RCW 9.94A.836, violates equal protection and is

unconstitutionally vague are also without merit. We therefore affirm Lear's conviction

for child molestation in the first degree.

                                             FACTS


       On the morning of January 30, 2013, 11-year-old P.K. and her father, Jeremy K.,

went to the Enumclaw Public Library. After about an hour, P.K. asked ifshe could go to

the car to eat an apple. Jeremy K. gave P.K. the car keys and remained in the library.

       P.K. returned to the car and sat in the back seat while she ate an apple and read

a library book. Suddenly, a man she had never seen before opened the door and

ordered her out of the car. The man told P.K. to go to the library bathroom or he would

kill her. P.K. believed the man would kill her if she did not comply.
No. 72454-1-1/2


       P.K. followed the man back into the library, where he told her to check if anyone

was in the women's bathroom. When P.K. said no one was in the bathroom, the man

took her inside, followed her into in one of the stalls, and locked the door. He then

ordered P.K. to remove her pants. When P.K. refused, the man put his hand down her

pants, rubbed her vagina, and kissed her.

       After about three to four minutes, the man threatened to kill P.K. if she told

anyone. He then told her to return to the library and act as if nothing had happened.

       In the meantime, Jeremy K. left the library and returned to the car. When he found

the car empty and the keys on the steering wheel, he assumed that P.K. had gone to the

bathroom. Jeremy K. then drove the car to the front of the library to wait for her.

       A short time later, the back door "burst open"1 and P.K. got in the car. She was

upset and crying and said that "a man just took me to the bathroom and tried to have

sex with me."2 When Jeremy K. asked who the man was, P.K. pointed to a man who

was walking away from the library and identified him as the assailant.

       Jeremy K. ran after the man, later identified as Travis Lear, and confronted him.

When Jeremy K. repeated P.K.'s accusation, Lear denied molesting P.K. and explained,

"No, that wasn't me. It's another guy. I heard some screaming and was helping but the

other guy is inside."3 Lear identified himself as "Martin Little."4

       Jeremy K. quickly returned to the car, where P.K. confirmed that Lear was the

assailant. Jeremy K. confronted Lear again and told him to stay until the police arrived.



       1 Report of Proceedings (Aug. 4, 2014) at 98.
       2Ig\
       3]d at 105.
       4 Clerk's Papers at (CP) at 240 (Finding of Fact 1-P).
No. 72454-1-1/3


Lear told Jeremy K. to leave him alone and ran off.

           At this point, Jeremy K. called 911. He described the suspect as a white male in

his early 20s with pale skin and a scruffy beard and wearing a red coat, jeans, and a

backpack. Officer Dustin Lobell responded to the 911 call. P.K. described her assailant

as a white male in his 20s with an "orangish-reddish" beard, a "thick" build, and hair

about two inches long.5 The man was wearing a red jacket and blue and gray

backpack.

           Detective Mark LeitI accompanied P.K. and Jeremy K. to the nearby police

station. LeitI then conducted a video recorded interview of P.K. and Jeremy K. in the

same conference room. LeitI acknowledged that the best practice is to interview

witnesses separately, but decided to interview P.K. in her father's presence because

she was so upset.

           At the beginning of the interview, LeitI told P.K. and Jeremy K. that the police had

a suspect, "a gentleman in our lobby earlier today. We don't know what he was

wearing, but he was a registered offender."6 P.K.'s description matched that of Travis

Lear, whom LeitI had seen at the police station shortly before the assault. While at the

station, Lear had told a community corrections officer that he was planning to visit the

library.

           At one point during the interview, LeitI asked Jeremy K. to step out of the

conference room. LeitI showed him a still photograph taken from the police surveillance

video of Lear's visit earlier in the morning. Jeremy K. immediately said, "[Tjhat's him"




           5 id, (Finding of Fact 1-0).
           6 \± (Finding of Fact 1-S).
No. 72454-1-1/4


and that he was "100% sure" it was the man he confronted outside the library.7 P.K.

remained in the conference room. When he returned, Jeremy K. told P.K. that the

police knew who the assailant was and would be arresting him. P.K. did not see the

photograph.

       On the following day, January 31, 2013, P.K. and Jeremy K. returned to the

police station and separately viewed a photomontage with six photographs. The

photomontage did not use Lear's surveillance photograph. Both P.K. and Jeremy K.

picked Lear's photograph. P.K. said she was 85 percent sure; Jeremy K. stated that he

was 100 percent sure.

       The State charged Lear with one count of child molestation in the first degree.

Prior to trial, he moved to suppress, arguing that the suggestive identification

procedures tainted Jeremy K.'s single photo identification, both Jeremy K.'s and P.K.'s

photomontage identifications, and any in-court identifications.

       Following a CrR 3.6 hearing, the trial court denied the motion to suppress. The

court found that the single photograph identification procedure was impermissibly

suggestive and that the photomontage procedure was not suggestive. But the court

concluded that under the totality of the circumstances, even if both procedures were

impermissibly suggestive, the identifications were reliable and the procedures not so

suggestive as to taint in-court identifications.

       The jury found Lear guilty as charged. Based on a predatory offense finding, the

court imposed an indeterminate sentence of 300 months to life.




       7 CP at 241 (Finding of Fact 1-W).
No. 72454-1-1/5


                                           ANALYSIS

          Lear contends the trial court erred in refusing to suppress all of P.K.'s and

Jeremy K.'s identifications. He argues that the suggestive single photograph

identification procedure, coupled with the improper and suggestive joint interview of

Jeremy K. and P.K., and the comments that the police and Jeremy K. made to P.K.

about arresting a suspect violated his due process rights and rendered all subsequent

identifications unreliable and inadmissible.

       We generally review the trial court's decision on a motion to suppress to determine

whether substantial evidence supports the findings of fact and whether those findings, in

turn, support the conclusions of law.8 We review conclusions of law de novo.9

       An out-of-court identification procedure violates due process if it is so

impermissibly suggestive as to give rise to "a substantial likelihood of irreparable

misidentification."10 A defendant claiming a due process violation must first establish

that the identification procedure was "impermissibly suggestive."11 Ifthe defendant

satisfies this threshold burden, the court then assesses whether, under the totality of the

circumstances, the procedure was so suggestive as to create a substantial likelihood of

irreparable misidentification.12




       8 See State v. Broadawav. 133 Wn.2d 118,130-31, 942 P.2d 363 (1997).
       9 State v. Schultz. 170 Wn.2d 746, 753, 248 P.3d 484 (2011).
       10 State v. Vickers, 148Wn.2d91, 118, 59 P.3d 58 (2002).
       11 Jdj see also State v. Guzman-Cuellar, 47 Wn. App. 326, 335, 734 P.2d 966
(1987).
       12 Vickers. 148 Wn.2d at 118.
No. 72454-1-1/6


       The key factor in determining admissibility is whether sufficient indicia of

reliability supported the identification despite any suggestiveness.13 In making this

determination, the court considers all relevant circumstances, including "(1) the

opportunity of the witness to view the [suspect] at the time of the crime, (2) the witness's

degree of attention, (3) the accuracy of the witness's prior description of the [suspect],

(4) the level of certainty demonstrated at the confrontation, and (5) the time between the

crime and the confrontation."14

       The trial court here found that the single photograph identification procedure was

impermissibly suggestive. The court also assumed, for purposes of its decision, that the

photomontage was suggestive. The evidence amply supports the court's determination

that the identifications were reliable and admissible despite any suggestive procedures.

       First, as the trial court found, both P.K. and Jeremy K. had a significant

opportunity to view the suspect's face. Jeremy K. approached the man twice, stood

within a few feet of him, and had a brief conversation on each occasion. P.K. was able

to view the suspect over an extended period time: when he opened the car door and

ordered her out, accompanied her to the library, and locked himself in a stall with her.

The suspect then forced P.K. to kiss him before he released her. P.K. also spoke

multiple times with the man during the assault.

       Second, both witnesses had ample opportunity to focus their attention on the

man's face. Jeremy K. repeatedly attempted to confront the man that P.K. had

identified as her assailant. P.K. was in close proximity to the suspect during a tense



       13 State v. Rogers. 44 Wn. App. 510, 515-16, 722 P.2d 1349(1986).
       14 State v. Linares. 98 Wn. App. 397, 401, 989 P.2d 591 (1999); see also Neil v.
Biggers. 409 U.S. 188, 198-200, 93 S. Ct. 375, 34 L Ed. 2d 401 (1972).
No. 72454-1-1/7


and fearful encounter and paid close attention to his ongoing instructions.

         Third, Jeremy K. provided an accurate description of the suspect to the 911

operator and to the responding officers. P.K. also gave the responding officers a

detailed and accurate description of the suspect's physical appearance and clothing.

Her descriptions remained consistent throughout the course of her interview.

         Fourth, both Jeremy K. and P.K. were highly certain of the accuracy of their

identifications. Jeremy K. expressed 100 percent certainty for his identification of both

the surveillance photograph and the photomontage. P.K. stated that she was 85

percent certain of her identification during the photomontage.

         Finally, only about one hour elapsed between the assault and Jeremy K.'s

identification of the surveillance photograph. The photomontage occurred only one day

later.

         Under the circumstances, substantial evidence supports the trial court's findings

on the reliability factors. The findings, in turn, support the conclusion that the

identifications were reliable and admissible despite any suggestiveness. The trial court

did not err in admitting Jeremy K.'s and P.K.'s identifications.

         Lear contends that Washington law on the admissibility of eyewitness evidence

is flawed and "fails to guard sufficiently against unreliable identifications."15 He

suggests that the trial court erred in relying on several of the factors that supported the

reliability determination. But Lear raises these arguments for the first time on appeal.




         15 Appellant's Br. at 21.
No. 72454-1-1/8


Because he fails to allege or demonstrate a manifest constitutional error, we decline to

consider them.16

       Lear next contends the predatory offense statute, RCW 9.94A.836, is

unconstitutionally vague. He argues that the statute fails to provide ascertainable

standards to protect against arbitrary enforcement.

       An appellate court reviews the constitutionality of a statute de novo.17 We

presume that the statute is constitutional, and the party challenging that presumption

bears the burden of proving beyond a reasonable doubt that the statute is

unconstitutional.18

       "In any vagueness challenge, the first step is to determine if the statute in

question is to be examined as applied to the particular case or to be reviewed on its

face."19 A vagueness challenge to a statute that does not involve First Amendment

rights must be evaluated "in light of the particular facts of each case."20

       Lear does not allege that RCW 9.94.836 involves First Amendment rights. Nor

does he contend that the statute is vague as applied to the facts of his case. Because

Lear's challenge is purely facial, he fails to establish RCW 9.94A.836 is

unconstitutionally vague.

       Lear also contends that RCW 9.94A.836 violates equal protection, arguing that

because RCW 9.94A.836 lacks any guidelines or limitations to inform the exercise of



       16 RAP 2.5(a)(3): see State v. Kirkland. 159 Wn.2d 918, 926-27, 155P.3d125
(2007);.
       17 State v. Watson, 160Wn.2d 1,5, 154 P.3d 909 (2007).
       18 In re Welfare of A.W.. 182 Wn.2d 689, 701, 344 P.3d 1186 (2015).
       19 City of Spokane v. Douglass. 115Wn.2d 171, 181, 795 P.2d 693 (1990).
      20 Id. at 182.


                                             8
No. 72454-1-1/9


prosecutorial charging discretion, there is no rational basis for the resulting "grossly

disparate sentences for similarly situated defendants."21

       RCW 9.94A.836 provides:

               (1) In a prosecution for rape of a child in the first degree, rape of a
      child in the second degree, or child molestation in the first degree, the
      prosecuting attorney shall file a special allegation that the offense was
      predatory whenever sufficient admissible evidence exists, which, when
      considered with the most plausible, reasonably foreseeable defense that
      could be raised under the evidence, would justify a finding by a
      reasonable and objective fact finder that the offense was predatory, unless
      the prosecuting attorney determines, after consulting with a victim, that
      filing a special allegation under this section is likely to interfere with the
      ability to obtain a conviction.

              (2) Once a special allegation has been made under this section, the
      state has the burden to prove beyond a reasonable doubt that the offense
      was predatory. If a jury is had, the jury shall, if it finds the defendant
      guilty, also find a special verdict as to whether the offense was predatory.
      If no jury is had, the court shall make a finding of fact as to whether the
      offense was predatory.

              (3) The prosecuting attorney shall not withdraw a special allegation
      filed under this section without the approval of the court through an order
      of dismissal of the allegation. The court may not dismiss the special
      allegation unless it finds that the order is necessary to correct an error in
      the initial charging decision or that there are evidentiary problems that
      make proving the special allegation doubtful.

The term "predatory" means:

      (a) The perpetrator of the crime was a stranger to the victim, as defined in
      this section; (b) the perpetrator established or promoted a relationship with
      the victim prior to the offense and the victimization of the victim was a
      significant reason the perpetrator established or promoted the relationship;
      or (c) the perpetrator was: (i) A teacher, counselor, volunteer, or other
      person in authority in any public or private school and the victim was a
      student of the school under his or her authority or supervision. For
      purposes of this subsection, "school" does not include home-based
      instruction as defined in RCW 28A.225.010; (ii) a coach, trainer, volunteer,
      or other person in authority in any recreational activity and the victim was
      a participant in the activity under his or her authority or supervision; (iii) a
      pastor, elder, volunteer, or other person in authority in any church or


      21 Appellant's Br. at 33.
No. 72454-1-1/10


      religious organization, and the victim was a member or participant of the
      organization under his or her authority; or (iv) a teacher, counselor,
      volunteer, or other person in authority providing home-based instruction
      and the victim was a student receiving home-based instruction while under
      his or her authority or supervision. For purposes of this subsection: (A)
      "Home-based instruction" has the same meaning as defined in
      RCW 28A.225.010; and (B) "teacher, counselor, volunteer, or other
      person in authority" does not include the parent or legal guardian of the
      victim.[22]

The term "stranger" means "the victim did not know the offender twenty-four hours

before the offense."23

       In State v. Halstien, our Supreme Court considered nearly identical provisions in

RCW 13.40.135, the juvenile sexual motivation statute:

             (1) The prosecuting attorney shall file a special allegation of sexual
      motivation in every juvenile offense other than sex offenses as defined in
      RCW 9.94A.030(29)(a) or (c) when sufficient admissible evidence exists,
      which, when considered with the most plausible, reasonably consistent
      defense that could be raised under the evidence, would justify a finding of
      sexual motivation by a reasonable and objective fact-finder.

             (2) In a juvenile case wherein there has been a special allegation
      the state shall prove beyond a reasonable doubt that the juvenile
       committed the offense with a sexual motivation. The court shall make a
      finding of fact of whether or not the sexual motivation was present at the
      time of the commission of the offense. This finding shall not be applied to
       sex offenses as defined in RCW 9.94A.030(29)(a) or (c).

               (3) The prosecuting attorney shall not withdraw the special
       allegation of "sexual motivation" without approval of the court through an
       order of dismissal. The court shall not dismiss the special allegation
       unless it finds that such an order is necessary to correct an error in the
       initial charging decision or unless there are evidentiary problems which
       make proving the special allegation doubtful.1241




       22 RCW 9.94A.030(39).
       23RCW9.94A.030(51).
       24 122 Wn.2d 109, 115, 857 P.2d 270 (1993) (quoting former RCW 13.40.135(1)-
(3) (1990)).

                                             10
No. 72454-1-1/11


       In rejecting a vagueness challenge to the statute, the court concluded that these

provisions sufficiently guided and limited prosecutorial discretion to prevent arbitrary

enforcement:


              The statute also meets the second part of the vagueness test:
      it contains ascertainable standards of guilt which prevent arbitrary
      enforcement. As noted above, the State must present evidence of some
      conduct during the course of the offense as proof of the defendant's
      sexual purpose. The State carries this burden of proof and must establish
      the sexual motivation allegation beyond a reasonable doubt.
      RCW 13.40.135(2). In addition, the prosecutor's charging discretion is
      guided and limited by the statute. The prosecutor may not file the
      allegation unless "sufficient admissible evidence exists" which would
      justify a finding of sexual motivation by a "reasonable and objective fact
      finder," and the prosecutor must weigh that evidence against the most
      plausible defense. RCW 13.40.135(1). The trial court must also enter a
      finding of fact whether or not the sexual motivation was present.
      RCW 13.40.135(2). These standards protect against arbitrary, ad hoc, or
      discriminatory enforcement.'251

       Lear does not present any meaningful analysis to distinguish Halstien or to

support his claim that RCW 9.94A.836 contains no guidelines to inform or limit

prosecutorial charging discretion. He has therefore failed to satisfy his burden of

demonstrating an equal protection violation.

      Affirmed.




WE CONCUR:




  | f »C/l<C. Nj




      25 Id. at 121.


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