                                                                                                                FILED
                                                                                                          COURT OF APPEALS
                                                                                                              DIVISIONaI
                                                                                                         2015 FEB 10
                                                                                                                     IM 8: 54


                                                                                                         BY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                DIVISION II

 STATE OF WASHINGTON,                                                                No. 44382 -1 - II


                                    Respondent,


            v.

                                                                          UNPUBLISHED OPINION
 DEVON M. DANIELS,


                                    Appellant.




           MAxA, J. —     Devon Daniels appeals his convictions of second degree burglary and first

degree theft. We hold that ( 1) the trial court did not err when it dismissed a potential juror for

cause, (   2) the trial court did not err when it admitted Daniels' s booking photographs into

evidence, and ( 3) there was sufficient evidence to support Daniels' s burglary conviction. We

also reject Daniels' s statement of additional grounds ( SAG) claims challenging the trial court' s

refusal to provide a lesser included jury instruction and arguing that the trial court should have

excluded the victim' s testimony because he lied to the 911 operator. Accordingly, we affirm

Daniels' s convictions.


                                                       FACTS


           On June 11, 2012, Mark Friesman, the owner of a convenience store in Tacoma, placed a


bank deposit bag containing store receipts totaling over $7, 000 in a locked desk drawer in his

office.    Later, the   store cashier gave   Daniels   permission   to   use   the   private store   bathroom. The
44382 -1 - II



door to Friesman' s office could be accessed only through the bathroom. According to Friesman

and the clerk, the office door was locked.

            When Friesman saw Daniels leave the bathroom, he immediately went into the bathroom

and noticed that the office door was ajar, his desk drawer was open, and the bank deposit bag

was gone. He chased after Daniels, but Daniels ran across the street and disappeared. Friesman

and two store patrons later went looking for Daniels, and found him walking behind a local

business. A police officer searched a residential area where Friesman had seen Daniels walking

and discovered scattered one dollar bills and a jacket. Another officer then searched the area and


recovered the stolen bank deposit bag. The State charged Daniels with second degree burglary

and first degree theft.


            During jury voir dire, juror 18. stated that she had witnessed the police do a lot of things

that   were not right, and   therefore she could not   be fair    and   impartial toward    police officers.   She


stated: "    I don' t believe anything coming   out of   their   mouth."   Report   of   Proceedings ( RP) ( Dec.


10, 2012) at 79. Upon further questioning, juror 18 stated that she could be fair and impartial.

However, she also stated that law enforcement officers would " have to really prove their case"

for her to believe them because of her observing things that were not right. RP ( Dec. 10, 2012)

at   104.    She agreed that she would hold police officers to a higher standard of proof and would


need " 100 percent proof' in order for her to believe the testimony of police officers. RP ( Dec.

10, 2012). at 106. She also admitted that if she were the prosecutor she would not want someone


like her on the jury.

            Following this examination, the State moved to dismiss juror 18 for cause. The trial

court granted the State' s motion over Daniels' s objection.




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         During trial, the State sought to introduce Daniels' s booking photographs taken after his

arrest. The State reasoned that because Daniels had substantially changed his appearance, the

photographs could help identify him as the person seen on the convenience store video

surveillance tapes. Daniels objected, arguing that there was already testimony that he had been

arrested and booked into jail and therefore the photographs were unnecessary to prove any

contested issue. The trial court allowed the State to introduce the photographs.

         Daniels requested a lesser included instruction of criminal trespass on the burglary

charge. The trial court denied the instruction, finding that there was no evidence to support it.

         The jury found Daniels guilty of both charged offenses. Daniels appeals.

                                                      ANALYSIS


A.       DISMISSING JUROR FOR CAUSE


         Daniels argues that the trial court denied him his right to an impartial and indifferently

chosen jury when the trial court dismissed juror 18 for cause. We disagree.

          1.      Legal Principles


         Both the Sixth and Fourteenth Amendments to the United States Constitution and article

I, section 22 of the Washington Constitution guarantee criminal defendants the right to trial by an

impartial      jury.   State   v.   Davis, 175 Wn.2d 287, 312, 290 P. 3d 43 ( 2012).   Either party may

exercise this right by moving to dismiss any prospective juror for cause where the juror shows
actual   bias. RCW 4. 44. 130, . 190. A juror possesses actual bias where he or she evidences a


  state of mind ...       which satisfies the court that the challenged person cannot try the issue

impartially and without prejudice to the substantial rights" of the party challenging the potential

juror. RCW 4.44. 170( 2).




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        We review a trial court' s decision on a challenge for cause for an abuse of discretion.

Davis, 175 Wn.2d        at   312. We   give great   deference to the trial   court   because       of   its ability " ` to


observe the juror' s demeanor [ during voir dire] and, in light of that observation, to interpret and

evaluate   the juror'   s answers   to determine    whether    the juror   would   be fair   and   impartial.' "      Id.


 quoting State v. Gentry; 125 Wn.2d 570, 634, 888 P.2d 1105 ( 1995)).

        2.     Dismissal of Juror 18 For Cause


        Juror 18 initially stated that she could not believe anything that police officers said

because she had seen the police do things that were not right, and that this would impact her

ability to be fair and impartial. This statement was sufficient to support a for cause dismissal
based on actual bias under RCW 4. 44. 130 and RCW 4. 44. 170( 2).


        Daniels argues that during subsequent questioning, juror 18 was rehabilitated because she

stated that she could be fair and impartial. But the State continued its questioning after juror 18

said she could be fair, and Juror 18 stated that if a police officer was testifying she would have a

higher standard of proof. She stated that there had to be 100 percent proof in order for her to

believe a police officer.


        The record indicates that juror 18 was not able to set aside her personal experiences and

render a verdict based on the law and facts presented at trial. The trial court had the benefit of


observing and questioning this potential juror, and decided that dismissal was appropriate. We

hold that this decision was reasonable based on juror 18' s comments.

         3.    Batson Claim


         Daniels argues that he had the right to trial by a jury that is representative of the

community. He cites Batson v. Kentucky, in which the United States Supreme Court held that a


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party cannot exercise a peremptory juror challenge on the basis of race. 476 U. S. 79, 89, 106 S.
Ct. 1712, 90 L. Ed. 2d 69 ( 1986). However, Daniels presents no argument or even allegation


that juror 18 was dismissed because of her race, and does not provide reference to anything in the

record that would support a Batson challenge. Therefore, we need not address Batson.


          Daniels further argues that the jury was not .indifferently chosen. However, there is no

indication in the record that juror 18 was dismissed for any reason other than her voir dire

responses, which demonstrated that she would not be able to render a fair and impartial verdict.

          We hold that the trial court did not abuse its discretion in dismissing juror 18 for cause.

B.        ADMISSION OF BOOKING PHOTOGRAPHS


          Daniels argues that the trial court erred in allowing the State to admit his booking

photographs. He argues that this created a prejudicial inference of criminal propensity and that

the booking photographs served no substantive purpose in proving the identity of the perpetrator.

We disagree.


          We review a judge' s rulings on the admission of evidence for abuse of discretion. State

v.   Ruiz, 176 Wn.   App.   623, 634, 309 P. 3d 700 ( 2013), review denied, 179 Wn.2d 1015 ( 2014),


cert.   denied, 135 S. Ct. 69 ( 2014). A court abuses its discretion when its decision is based on


untenable grounds or reasons. Id. Nonconstitutional error is not prejudicial unless, within


reasonable probabilities, the error materially affected the trial outcome. State v. Tharp, 96 Wn.

2d 591, 599, 637 P. 2d 961 ( 1981).


          The State may introduce a defendant' s booking photograph when the perpetrator' s

identity is a disputed issue at trial, particularly when the defendant materially changes his

appearance between his arrest and his trial. State v. Scott, 93 Wn.2d 7, 13, 604 P. 2d 943 ( 1980).




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Daniels' s case is similar to that in State v. Rivers, 129 Wn.2d 697, 712, 921 P. 2d 495 ( 1996),

where the court held that admitting the defendant' s booking photograph had a proper purpose:

         Because Defendant Rivers raised the issue of identity during opening statements,
         the photograph of the Defendant on the day of the crime was relevant as it tended
         to show that the victim' s description to police matched the man arrested shortly
         after the robbery. The admission of the photo was not prejudicial because the jury
         knew the Defendant was arrested for the crime on which he was being tried, and
         the jury would reasonably have been aware that a booking procedure, including
         photographing the Defendant, would have existed.

Id.


         Here, the only issue at trial was the perpetrator' s identity. The State showed the jury the

store' s surveillance videos and several witnesses identified Daniels as the perpetrator. The

booking photographs showed Daniels' s appearance at the time of the offenses. And because
Daniels changed his appearance after his booking and before trial, as in Rivers the photographs

were material and not prejudicial. See also State v. Tate, 74 Wn.2d 261, 267, 444 P. 2d 150

 1968) (   photograph properly admitted because witness had identified defendant from photograph

and   defendant had     changed    his   appearance   between his   arrest and   his trial); State v. McCreven,


170 Wn.     App.   444, 485, 284 P. 3d 793 ( 2012) ( booking        photograph is not necessarily

prejudicial);   State   v.   Wheeler, 22 Wn.   App.   792, 796 -97, 593 P. 2d 550 ( 1979) ( because


photograph was taken at time of arrest, it did not show criminal propensity and it was properly

admitted to show identity).

           We hold that the trial court did not abuse its discretion in admitting Daniels' s booking

photographs.




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44382 -1 - II



C.        SUFFICIENCY OF THE EVIDENCE As To BURGLARY


          Daniels argues that the State failed to prove that he committed second degree burglary.

Specifically, he argues that the evidence did not show that he entered or remained unlawfully in
the   store office with      intent to   commit a crime   therein   as required under   RCW 9A. 52. 030( 1).   He


claims that the evidence did not show that he was prohibited from entering the office. We

disagree.


          The test for determining sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt

beyond       a reasonable    doubt. State    v.   Rose, 175 Wn.2d 10, 14, 282 P. 3d 1087 ( 2012). In a


sufficiency of the evidence claim, the defendant admits the truth of the State' s evidence and all

reasonable inferences drawn from that evidence. Id. Credibility determinations are made by the

trier of fact and not subject to review. State v. Miller, 179 Wn. App. 91, 105, 316 P. 3d 1143

 2014).       Circumstantial and direct evidence are equally reliable. Id.

             The trial   court' s unchallenged     instruction defined entering   and   remaining unlawfully: " A


license or privilege to enter or remain in a building that is only partly open to the public is not a

license or privilege to enter or remain in that part of the building that is not open to the public."

Clerk'   s   Papers   at   248.   The testimony at trial demonstrated that Daniels did not have a license or

privilege to enter the office. Although Daniels had permission to enter the bathroom, he

 exceeded that privilege when he opened the locked office door. Further, there was clear

 evidence that Daniels entered the office. The video surveillance tapes show Daniels in the

 office, reaching over the desk. He also left his coffee cup on the desk.




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44382- 1- 11




        We hold that there was sufficient evidence to support Daniels' s burglary conviction in

that he entered the office unlawfully (without license or privilege) with an intent to commit a

crime therein.


D.        SAG CLAIMS


          1.      Lesser -Included Jury Instruction

          Daniels claims that the trial court should have given his proposed lesser included

instruction on criminal trespass for the second degree burglary charge. We disagree.

          A defendant is entitled to a lesser included instruction only if (1) each of the elements of

the lesser      offense   is   a   necessary   element of   the   offense charged (   legal prong), and ( 2) the


evidence in the case supports an inference that only the lesser crime was committed ( factual

                         Workman, 90 Wn.2d 443, 447 -48, 584 P. 2d 382 ( 1978).                The defendant must
prong). State       v.




establish both the legal and factual prongs in order to have a lesser included instruction given at

trial. Id.


          For a second degree burglary conviction, RCW 9A.52. 030 requires the State to prove that

the defendant entered or remained unlawfully in a building other than a vehicle or a dwelling

with the intent to commit a crime against a person or property in the building. For a first degree

criminal trespass conviction, RCW 9A.52. 070 requires the State to prove that the defendant

knowingly entered or remained unlawfully in a building.

          The legal prong is met here because first degree criminal trespass is a lesser included

offense to a charge of second degree burglary. State v. Soto, 45 Wn. App 839, 841, 727 P. 2d 999

 1986).        However, the factual prong is not met here because there was no evidence that Daniels

committed only the lesser offense. There is no reasonable view of the evidence that Daniels


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simply went into the office to look around without intending to commit a crime. Daniels opened
a locked door to the office, rummaged through the owner' s desk, opened a locked drawer, and

took the bank deposit bag containing the store receipts and money. The surveillance videos

support this as does the evidence linking Daniels to the bank deposit bag found several blocks

away. The only conclusion that can be drawn from the evidence is that Daniels went into the
office with the intent to commit a crime.


         We hold that the trial court did not err in denying Daniels' s request for a lesser included

instruction.


         2.     Witness Credibility

         Daniels argues that the trial court should have excluded Friesman as a witness because he

lied to the 911 operator when he said that Daniels had pushed him when leaving the store.

Friesman explained during trial that he exaggerated what had happened because he had learned

from previous situations that if you want the police to prioritize your case, you have to make it

seem more urgent. He admitted at trial that Daniels did not push him and that he did not recall

telling the reporting police officers that Daniels pushed him.

         But Friesman' s false statement to the 911 operator did not provide the basis for the trial


court to completely exclude Friesman as a witness. Daniels used Friesman' s statements in his

defense to     show   that Friesman tended to   exaggerate   the truth for his   own purposes.   As a result,


his truthfulness with the 911 operator was a matter for the jury to consider in assessing his

credibility. See State     v.   Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850 ( 1990) ( this court does not


assess   the credibility   of witnesses).   We reject Daniels' s claim.




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         We affirm Daniels' s convictions.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




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