IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON,
                                                                         '
                                                                         ,ea      • ri
THE STATE OF WASHINGTON,                       )                           o     inn
                                               )        No. 76837-9-1      4.0
                        Respondent,            )                                 n-
                                               )        DIVISION ONE      IN3         •-••
              V.                               )
                                               )        UNPUBLISHED OFVIONI;26
CHARLES MARCELUS TAYLOR,                       )                               grt;
                                               )                           as     s_3
                        Appellant.             )        FILED: July 23, 201131 zarz'
                                               )
      APPELWICK, C.J. — A jury convicted Taylor of attempting to elude a police

vehicle. On appeal, he argues that the evidence was insufficient to support the

conviction, and that the State withheld evidence of the canine's performance

history in violation of Brady v. Maryland) We affirm.

                                       FACTS

      On June 17, 2016,Trooper Adam Gruener ran a search of the license plate

of a Honda Accord that was driving eastbound on State Route 518. The search

revealed that the Honda had been sold over 45 days before, but title had not yet

been transferred as required by law.

      Trooper Gruener activated his lights and pursued, but the Honda

accelerated. For safety reasons, Trooper Gruener terminated the pursuit a short

time later. But, from a distance, he observed the Honda pull into a parking lot.




1 373 U.S. 83,83 S. Ct. 1194, 10 L Ed. 2d 215(1963).
No. 76837-9-1/2


Trooper Gruener followed, located the Honda in a parking lot, and approached the

vehicle on foot. He saw a man in a white shirt run away from him

       Tukwila Police Officer Brent Frank arrived, along with his canine partner,

Ace. Officer Frank and Ace located the suspect roughly 400 yards away. At trial,

Trooper Gruener identified Charles Taylor as the suspect apprehended by the

canine unit.

       Taylor was charged with attempting to elude a pursuing police vehicle, with

an endangerment by eluding enhancement. The jury found Taylor guilty of

attempting to elude a pursuing police vehicle. But, it was discharged after it was

unable to reach an agreement on the enhancement. Taylor appeals.

                                  DISCUSSION

       Taylor makes two arguments. First, he argues that the evidence was

insufficient to support the conviction, because there was insufficient evidence to

corroborate Ace's track and identification. Second, he argues that the State

violated Brady by failing to produce or preserve evidence of Ace's training and

performance history, and particularly any records of false identifications.

  I.   Sufficiency of Evidence

       Taylor first contends that there was insufficient evidence to corroborate

Ace's identification, and therefore there was insufficient evidence to sustain his

conviction.

       The test for determining the 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. Salinas, 119


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Wn.2d 192, 201, 829 P.2d 1068 (1992). When the sufficiency of the evidence is

challenged in a criminal case, all reasonable inferences from the evidence must

be drawn in favor of the State and interpreted most strongly against the defendant.

it A claim of insufficiency admits the truth of the State's evidence and all
Inferences that reasonably can be drawn therefrom. Id.

       While dog tracking evidence is admissible to show a defendant's guilt, such

evidence, by itself, is legally insufficient to prove identification. State v. Loucks,98

Wn.2d 563, 567, 656 P.2d 480 (1983); State v. Nicholas, 34 Wn. App. 775, 778,

663 P.2d 1356(1983). "The dangers inherent in the use of dog tracking evidence

can only be alleviated by the presence of corroborating evidence identifying the

accused as the perpetrator of the crime." Loucks 98 Wn.2d at 567. "Corroborating

evidence is defined as le]vidence supplementary to that already given and tending

to strengthen or confirm it.'" Id. at 335 (alteration in original) (citing BLACK'S Law

DICTIONARY 414 (4th ed. 1968)).

       Taylor argues that there was Insufficient evidence beyond Ace's

identification. He argues that Loucks requires reversal. In Loucks, police deployed

a canine after a burglary. 98 Wn.2d at 564-65. The canine's track led police to

Loucks, who was lying down at the bottom of a stairwell nearby. Id. at 565. Blood

and fingerprints at the crime scene did not belong to Loucks. Id. No other evidence

suggested that Loucks was at the crime scene. Id. at 566. However, the State's

theory was that there was an accomplice, because large furniture was removed,

and there were two break-in points. Id. at 568. The Supreme Courtfound that this




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was insufficient to corroborate the canine identification, and thus the canine track

and identification, "standing alone," was insufficient to sustain the conviction. Id.

       But, in Taylor's case, the canine identification does not stand alone.

Testimony linked him with the specific vehicle that eluded police. Danielle McKim

was registered as the purchaser of the vehicle in the recent sale. McKim testified

that her ex-boyfriend had offered her the vehicle in question, but she had turned

down the gift, and her boyfriend continued to drive it. She stated that her ex-

boyfriend who had offered her the vehicle had a friend named Charles Taylor.

McKim testified that the defendant looked familiar, but stated that she had thought

that the person she remembered as Taylor was "a completely different person"

than the defendant.

       Taylor was arrested at 2:45 a.m., within 30 minutes of the beginning of the

dog track, in an empty business park 400 yards from the vehicle, hiding between

a knee-high hedge and a closed business building whose parking lot was empty.

He had on dark pants and a light colored shirt as the officer described.

       The evidence associates Taylor with the vehicle and takes this case beyond

the facts of Loucks. It satisfies the corroborating evidence standard, because it

"'tend[s]to strengthen'"the conclusion that Taylor committed the charged crime.

Ellis, 48 Wn.App. at 335.

       Substantial evidence supports Taylor's conviction for attempting to elude a

pursuing police vehicle.




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 II.   Brady Evidence

       Taylor next argues that the State wrongfully withheld exculpatory evidence,

In violation of Brady. The records that he alleges were wrongfully withheld pertain

to Ace's training and performance history. These records would be exculpatory,

he claims, because they may show that Ace's identifications tend to be unreliable.

       At trial, Taylor sought to exclude canine tracking evidence under Brady,

because the State never disclosed any records about the canine's performance

history. The trial court ordered the State to produce all materials concerning any

prior misidentifications by Ace, but the State represented that no such materials

existed, and that Ace had never Identified the wrong suspect. The trial court held

that the State had therefore met its Brady obligation. And, the court further

reasoned that Taylor was free to examine Officer Frank about reliability or any

potential history of misidentification. During trial, Officer Frank testified that Ace

has a tracking accuracy rate of over 85 to 90 percent. Taylor argues that the

evidence of missed tracks Is exculpatory, and he should have received records of

such evidence.

       Under Brady the suppression by the prosecution of evidence favorable to

an accused upon request violates due process, when the evidence Is material to

guilt or punishment, irrespective of the good faith or bad faith of the prosecution.

State v. Mullen, 171 Wn.2d 881, 894, 259 P.3d 158 (2011). Brady obligations

extend not only to evidence requested by the defense but also to favorable

evidence not specifically requested by the defense. Id. The government must




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disclose not only the evidence possessed by prosecutors but evidence possessed

by law enforcement as well. Id.

      In order to establish a Brady violation, a defendant must establish three

things:(1)the evidence at issue must be favorable to the accused, either because

It is exculpatory, or because it is impeaching,(2) that evidence must have been

suppressed by the State, either willfully or Inadvertently, and (3)the evidence must

be material. State v. Davila, 184 Wn.2d 55,69, 357 P.3d 636(2015). Evidence is

material only if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.

Mullen 171 Wn.2d at 894. If the State has failed to preserve "material exculpatory

evidence," criminal charges must be dismissed. State v. Wittenbaraer, 124 Wn.2d

467,475,880 P.2d 517(1994).

       The State represented that no records of Ace's success or failure in tracking

existed. However, Taylor argues that the State was required to maintain such

records under former WAC 139-05-915(7)(a)(2016). And, he argues that by not

maintaining those records the State deliberately failed to maintain Brady evidence.

       Former WAC 139-05-915(7)(a) required law enforcement agencies to "keep

training, performance, and identification records on canines." Specifically, the

WAC requires the following types of records:

              (i) Microchip number (if applicable);
              (ii) Canine's name;
              (iii) Breed;
              (iv) Training records;
              (v) Certification date;
              (vi) Date acquired or purchased;
              (vii) Source from which the canine was acquired;


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No. 76837-9-1/7

              (viii) Purpose, use, or assignment of canine;
             (ix) Handlers name;
             (x) The date and reason the canine was released from
       service; and
             (xi) Copies of all incident reports in which use of the canine
       resulted in the use of force.

it On its face, the regulation does not require records of success or failure in
specific tasks. it Only incident reports involving use of force are called out for

documentation. it Taylor fails to establish that the State was obligated to create

and possess records that reflect the success or error rate of the canine.

       Taylor argues that Aguilar v. Woodford, 725 F.3d 970,980(2013)supports

reversal. In that case,the prosecution submitted evidence of a "scent test," where,

one month after the crime at issue, the canine associated a scent from a suspects

clothes to a vehicle that had been impounded. Id. at 978-79. The State failed to

disclose that this canine had made multiple misidentifications in the past, including

Identifying a suspect that had been in prison at the time that the crime at issue had

been committed. Id. at 980. The court reversed the conviction, and reasoned that

"Where is no doubt that Reilly's history of making erroneous scent identifications is

exculpatory evidence." it at 982.

       This case is distinguishable from Aguilar. There, the evidence showed a

documented history that the canine had identified the wrong suspect. Id. at 980.

But, here there is no indication that the documentation sought ever existed.

       Taylor also argues that City of Seattle v. Fettiq, 10 Wn. App.773,519 P.2d

1002 (1974) requires reversal. In that Intoxicated driving case, the city had

destroyed videotape evidence of a defendant's sobriety tests. Id. at 773-74. This

left the testifying police officers as the primary witnesses as to the defendant's


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intoxication.   Id. at 774. This court reversed, because the videotape was

corroborating evidence of the officers' testimony and breath test results, were the

only remaining evidence of the defendant's intoxication. Id. 776-77. Notably, the

court relied on the fact that a district courtjudge, who had presided on the case at

a prior stage and had viewed the video, testified that the videotape negated the

impression that Fettig was intoxicated. Id. But, like Aguilar, Fettiq is also

distinguishable. In Fettiq there was no dispute that the exculpatory evidence

existed but was destroyed. Here, there is no indication that the records ever

existed or that the State was required to have and maintain them.

       Taylor has failed to carry his burden to show a Brady violation.

       We affirm.



WE CONCUR:




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