     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                               No. 75329-1-1
                     Respondent,
        V.                                     DIVISION ONE

 JILL A. ROBINSON,                             UNPUBLISHED OPINION

                     Appellant.                FILED: October 9, 2017


       LEACH, J. — Jill Robinson appeals her conviction for eight counts of second

degree identity theft. She claims violation of her right to an impartial jury and

ineffective assistance of counsel. Because she did not preserve her jury claim or

show a manifest constitutional error, we do not consider this claim.

       Robinson also maintains that defense counsel's failure to object to Sergeant

Park's testimony identifying her in the surveillance images constitutes ineffective

assistance of counsel. A successful ineffective assistance of counsel claim

requires that the defendant show deficient performance and actual prejudice.

Because Park's testimony was admissible lay witness opinion testimony, defense

counsel's performance was not deficient. We affirm.

                                  BACKGROUND

       In March 2014, someone burglarized JoeIle Kantor's storage unit in

Redmond, Washington. About one month later, Kantor reported to Redmond
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Detective Katelyn McGinnis that someone had used checks stolen from her unit.

This person presented these checks at Johnson's Home and Garden and the Fred

Meyer across the street in Maple Valley. They had been altered so that "Jenna A.

Segadelli" appeared as an account holder.

       Segadelli told McGinnis that she had not given anyone permission to use

her identity and she did not know Kantor but that her driver's license, social security

card, and other items had recently been stolen in a car prowl. McGinnis obtained

surveillance video from Fred Meyer and surveillance photographs from Johnson's

Home and Garden. The images from both stores appear to show the same blond-

haired woman conducting the transactions. A tattoo on the woman's right arm is

visible in some of the images.

       McGinnis extracted some still-frame images from the video and placed them

in a bulletin to help identify the suspect. King County Sheriff's Sergeant Kelly Park

saw the bulletin. She recognized the woman as Robinson and e-mailed McGinnis.

At trial, the court admitted as evidence the surveillance video recording, the still

images, and Robinson's Department of Licensing (DOL)identification photograph.

Park testified that she based her identification of Robinson in the bulletin image,

on meeting Robinson once nine years earlier, and having seen numerous

photographs of her since then. Park identified the person depicted in three of the

surveillance photographs and Robinson's DOL photograph as Robinson.

McGinnis testified that she knew Robinson had a tattoo on her right arm. No other

witnesses testified about Robinson's identity.


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       A jury convicted Robinson of eight counts of second degree identity theft

based on the four checks Robinson cashed using Kantor's checks and Segadelli's

identification. Robinson appeals.

                                    DISCUSSION

                              Right to an Impartial Jury

       Robinson claims that Sergeant Park's testimony infringed upon her right to

an impartial jury under article 1, section 22 of the Washington Constitution.1

Robinson acknowledges that she did not raise this challenge below but contends

that allowing Park to identify her in the surveillance images was a manifest

constitutional error. Normally, a party may appeal an evidence decision only on

the specific ground of the objection made at tria1.2 Because Robinson did not

object to Park's testimony at trial, she did not preserve any issues about this

testimony for appellate review. But a party may raise for the first time on appeal a

manifest error affecting a constitutional right.3

       An error is manifest if it caused actual prejudice. This means the defendant

must make a plausible showing that the asserted error had practical and

identifiable consequences in the tria1.4 To determine if an error is of constitutional

magnitude, we assume the alleged error is true and then assess if that error



       'Article 1, section 22 of the Washington Constitution states,"[T]he accused
shall have the right to... a speedy public trial by an impartial jury."
       2 State v. Gulov, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).
       3 RAP 2.5(a)(3); see also State v. Walsh, 143 Wn.2d 1, 7, 17 P.3d 591
(2001).
       4 State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007).



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actually violated the defendant's constitutional rights.5 We first address whether

the alleged error implicates a constitutional right.

       Robinson contends that Park's identification testimony infringed on her right

to an impartial jury because it provided an improper opinion about Robinson's guilt.

Opinion testimony about a criminal defendant's guilt violates the defendant's right

to a trial by an impartial jury.6 Robinson maintains that as a police sergeant, Park

had a "special aura of reliability."7 She asserts that Park's testimony about Park's

extensive training and experience as a law enforcement officer and the certainty

with which she identified Robinson as the person in the surveillance images

presented Robinson's identity as an established fact and not just a personal

opinion. Robinson contends that these circumstances amounted to Park testifying

about Robinson's guilt in violation of her constitutional right to an impartial jury.

We reject Robinson's claim.

       First, Park's status as a sergeant has no bearing on the propriety of Park's

testimony.    An officer may testify about the defendant's identity without

constitutional conseguence.5 Second, although opinion testimony about guilt



        5 State v. Kalebaugh, 179 Wn.App.414,420-21, 318 P.3d 288(2014), affd,
183 Wn.2d 578, 355 P.3d 253(2015).
        6 State v. Barr, 123 Wn. App. 373, 380, 98 P.3d 518(2004).
        7 Kirkman, 159 Wn.2d at 928 ("Testimony from a law enforcement officer
regarding the veracity of another witness may be especially prejudicial because an
officer's testimony often carries a special aura of reliability.").
        5.See State v. Hardy, 76 Wn. App. 188, 190, 884 P.2d 8 (1994), aff'd sub
nom. State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996); see also State v.
George,150 Wn. App. 110, 112-13, 117, 119, 206 P.3d 697(2009). In Hardy and
George, the court held that an officer may testify as to the defendant's identity if

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violates the defendant's right to trial by an impartial jury,9 an opinion that supports

a finding of guilt does not make the opinion improper.19

       Here, Park testified only that the woman in the surveillance images was

Robinson. Park based this identification on her previous encounter with Robinson

and later repeated exposure to photographs of Robinson. Park did not comment

about whether Robinson committed the thefts. Thus, Park's testimony addressed

the issue of identity, which supported a finding of guilt but did not express any

opinion on Robinson's guilt. Because the challenged testimony did not violate

Robinson's right to an impartial jury, we need not address if it was a manifest error.

                         Ineffective Assistance of Counsel

       Robinson next claims that she received ineffective assistance of counsel

because her trial counsel did not object to Park's identification testimony. Claims

of ineffective assistance present mixed questions of law and fact, which this court

reviews de novo."

       The defendant must show that(1) counsel's performance was deficient and

(2) counsel's deficient performance prejudiced the defense.12 If the defendant

carries this burden, we will reverse.13



the officer's past contacts with the defendant are sufficient to make the officer's
testimony helpful to the jury in accordance with ER 701.
       9 State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
       19 State v. Collins, 152 Wn. App. 429,436, 216 P.3d 463(2009).
       11 Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
       12 Strickland, 466 U.S. at 687.
       13 State v. McFarland, 127 Wn.2d 322, 337, 899 P.2d 1251 (1995).



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      To prove the deficient performance element, the defendant must show that

counsel's performance fell below an objective standard of reasonableness.14

Appellate courts examine trial counsel's performance with great deference, and

the defendant must overcome the presumption that the challenged action "might

be considered sound trial strategy.'"18 Generally, the decision of when or whether

to object is trial strategy.16 Counsel's performance is not deficient for failing to

object to admissible testimony.17    Robinson contends that defense counsel's

failure to object to Park's testimony constitutes deficient performance.

       A lay witness may give opinion testimony if it is rationally based on the

perception of the witness and helpful to a clear understanding of the testimony or

the determination of a fact in issue.18 A lay witness may give an opinion about the

identity of a person depicted in a photograph or video if the record provides some

basis for concluding that the witness is more likely to correctly identify the

defendant from the medium than is the jury.18 A lay witness is generally better

equipped to identify the defendant in a recording or a photograph than is the jury

in two circumstances: (1) when the witness has had substantial and sustained

contact with the person in the photo, which is relevant here, or (2) when the




       14Strickland, 466 U.S. at 687-88.
       15Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101, 76S. Ct. 158, 100 L. Ed. 83(1955)).
      16 State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662(1989).
      17 State v. Alvarado, 89 Wn. App. 543, 553, 949 P.2d 831 (1998).
      18 ER 701.
      19 Hardy, 76 Wn. App. at 190.



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defendant's appearance in the photo is different from her appearance before the

jury.26

          Two cases illustrate this first rule. In State v. Hardv,21 we held that the trial

court properly admitted an officer's opinion testimony about the defendants'

identities because the officer had sufficient contacts with the defendants. In Hardy,

a police officer testified about the identity of two defendants who appeared in a

"somewhat grainy videotape" that was introduced at tria1.22 The officer testified

that he had known one defendant for "several years" and the other "for 6 or 7 years

and considered him a friend."23 This court affirmed the trial court's ruling to admit

the officer's opinion testimony because the officer was in a better position than the

jury to determine whether it was the defendants in the videotape due to the officer's

longstanding relationship with them.24

          In State v. George,25 Division Two followed Hardy but held that the trial court

abused its discretion in allowing a detective to identify the two defendants as the

individuals depicted in a surveillance video of a motel robbery because the

detective did not have sufficient contacts. The detective had observed one

defendant as he left a van and ran away and then at a hospital later that evening.26

The detective had observed the other defendant while he was getting out of a van


          20 United States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993).
          21 76 Wn. App. 188, 191, 884 P.2d 8(1994).
          22 Hardy, 76 Wn. App. at 191.
          23 Hardy, 76 Wn. App. at 191-92.
          24 Hardy, 76 Wn. App. at 191.
          25 150 Wn. App. 110, 119, 206 P.3d 697 (2009).
          26 George, 150 Wn. App. at 119.



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and being handcuffed and then later while he was at the police station in an

interview room.27 He could not make out facial features in the surveillance video

and identified the defendants in the video by their build in addition to other

factors.28 On appeal, the court held that the detective's contacts fell "far short of

the extensive contacts in Hardy."29

       We view this case as more like Hardy. Park interacted with Robinson in-

person nine years earlier, and Park had seen numerous photographs of Robinson

over the years. Park testified that she looked at Robinson's photograph "enough

that I could look at the picture and know who I was looking at without needing a

name associated, so [I was] very familiar with her picture." Moreover, Robinson's

facial features can be seen in most of the surveillance images. Although Park's

contacts with Robinson are not as extensive as the officer's contacts with the

defendants in Hardy, Park was more likely to identify Robinson as the person in

the surveillance images than the jury due to Park's previous contacts with

Robinson. Park's testimony is therefore admissible lay witness opinion testimony.

Thus, Robinson's defense counsel's failure to object did not fall below an objective

standard of reasonableness.        Because Robinson did not show deficient

performance, we need not address whether counsel's performance prejudiced

Robinson's defense.




       27 George, 150 Wn. App. at 119.
       28 George, 150 Wn. App. at 119 & n.5.
       29 .gC01.0, 150 Wn. App. at 119.



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                                 Appellate Costs

       Finally, Robinson asks the court to deny the State appellate costs based on

her indigency. We generally award appellate costs to the substantially prevailing

party on review.30 But when a trial court makes a finding of indigency, that finding

continues throughout review "unless the commissioner or clerk determines by a

preponderance of the evidence that the offender's financial circumstances have

significantly improved since the last determination of indigency."31 Here, the trial

court found Robinson was indigent. If the State has evidence indicating significant

improvement in Robinson's financial circumstances since the trial court's finding,

it may file a motion for costs with the commissioner.

                                  CONCLUSION

       We do not consider Robinson's challenge to Park's identification testimony

because Robinson did not object to it at trial and fails to show that its admission

was a manifest constitutional error. Park did not testify about Robinson's guilt.

She gave identity testimony that supported the jury's finding of guilt. Robinson

also fails to show that her counsel was not effective. Defense counsel's failure to




       30RAP 14.2.
        RAP 14.2; see also State v. St. Clare, 198 Wn. App. 371, 382, 393 P.3d
       31
836 (2017), review denied, No. 94431-8(Wash. Sept. 6, 2017).

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object to Park's identity testimony did not constitute deficient performance because

Park's testimony was admissible lay witness opinion testimony. We affirm.




                                                    AlLe-eteci
WE CONCUR:



                                                         e&A




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