        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                                               <Z2   -iC

                                                No. 67793-4-1
                                                                                           O
                      Respondent,
                                                DIVISION ONE                         I
                                                                                    ST
   v.



JAMES DENSMORE,                                 UNPUBLISHED OPINION


                      Appellant.                FILED: March 4. 2013



        Spearman, A.C.J. -James Densmore appeals his convictions for burglary,

theft, and malicious mischief, arguing that the trial court erred in denying his

motion to dismiss the charges or suppress evidence because the State failed to

preserve surveillance video footage of the crime. He also contends that the

State failed to present sufficient evidence that he was one of the three men who

committed the crimes. We reject his arguments and affirm.

                                       FACTS

        On February 7, 2009, three men walked into a Redmond neighborhood

pub, the Celtic Bayou. The pub owner, Benaissa Wahbi, did not recognize the

men and thought their behavior was suspicious, but Wahbi leftthe pub shortly

thereafter without telling anyone of his concerns. The bartender, Bryce Bentler,

served the men two beers and a soda and noticed that they did not stay long.
No. 67793-4-1/2



When Bentler took out the trash around 11:00 p.m., he saw the same three men

sitting and smoking in a four-door sedan parked in front of a closed donut shop.

Server Jessica Harmston noticed that the three men sat together quietly while in

the pub and took turns walking over to the bathroom. When Harmston left after

11:00 p.m., she saw the same three men sitting in a dark blue four-door sedan

parked at the end of a strip mall.

       When Bentler arrived at the pub the next morning, he discovered that

burglars had stolen money and caused significant property damage by cutting

through drywall and prying open doors and a safe. Bentler called Wahbi and the

police. Redmond Police Officer Jeremy Sandin met Wahbi at the pub. Sandin

observed the damage inside the business and noticed that the door to a small

electrical room adjoining the pub had also been pried open. Inside the electrical

room, someone and cut a hole three feet in diameter in the drywall connecting

the pub's bathroom and outdoor electrical room. Wahbi and Sandin then viewed

a surveillance video of the burglary several times. Wahbi recognized the men in

the burglary footage as the same three men who had been in the pub the night

before. Bentler also watched the video and recognized one or two of the

burglars as the men who had been at the pub the previous night.

       When Sandin attempted to collect the video as evidence, Wahbi reported

that it was saved on the hard drive of the computer but he did not know how to

copy it to a CD. Sandin told Wahbi to save the video footage and advised him

that another officer would attempt to obtain it. However, Wahbi later attempted to

copy the video, damaged the hard drive, and lost the surveillance video.
No. 67793-4-1/3


Redmond Police Detective Brian Coats later took the hard drive back to the

police department, but efforts to recover the video failed.

       The police showed Wahbi and Bentler photomontages of suspects James

Densmore, Byron Bowman, and Tyler Bowman. Wahbi did not choose any of the

suspects, but Bentler identified all three suspects as the men who had been in

the pub together on Saturday night.

       The State charged Densmore with second degree burglary, first degree

theft, and first degree malicious mischief. Prior to trial, Densmore moved to

dismiss the charges or, in the alternative, suppress evidence of the surveillance

video, arguing that the State's failure to preserve the video constituted a violation

of his right to due process under Bradv v. Maryland. 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215 (1963). The trial court filed the following summary of its rulings:

       1. The defendant's Motion to Dismiss for Violation of Due Process
       was denied.      Law enforcement was not involved in the
       unsuccessful efforts to make a copy of the surveillance video
       footage that ultimately led to the irreversible corruption of the video.
       There was good reason why responding officers did not seize the
       hard drive containing the footage during their initial response to the
       scene. Doing so would likely have disrupted the business, and
       furthermore, there was no reason to believe that the video would
       not be successfully copied.
       2. The defendant's motion to suppress any reference to the
       destroyed video was denied. There was no evidence that the video
       was destroyed in bad faith.

Clerk's Papers (CP) at 74.

       At trial, Wahbi, Sandin, and Bentler testified about what they recalled of

the surveillance video. The jury was unable to reach a verdict and the trial court
No. 67793-4-1/4


declared a mistrial. After a second trial, the juryfound Densmore guilty and the

trial court imposed an exceptional sentence.

          Densmore appeals.

                                     DISCUSSION

          Under both the Washington Constitution and the United States

Constitution, due process requires that the State preserve material exculpatory

evidence. State v. Wittenbarger. 124 Wn.2d 467, 475, 880 P.2d 517 (1994). To

be considered "material exculpatory evidence," the exculpatory value of the

evidence must have been apparent before it was destroyed, and the nature of

the evidence leaves the defendant unable to obtain comparable evidence by

other reasonable means. ]d.; California v. Trombetta, 467 U.S. 479, 489, 104

S.Ct. 2528, 81 L.Ed.2d 413 (1984). Ifthe evidence is only "potentially useful" to

the defense, failure to preserve the evidence does not violate due process unless

the defendant can show the State acted in bad faith. Wittenbarger, 124 Wn.2d at

477; Arizona v. Youngblood. 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281

(1988).

          Relying primarily on City of Seattle v. Fettig, 10 Wn. App. 733, 519 P.2d

1002 (1974), Densmore argues that because identity was the central point in

dispute at the trial and because the surveillance video was crucial to that issue,

its negligent destruction by the State violated his right to due process. In Fettig,

this court reversed a conviction for driving while intoxicated where the police

failed to preserve a videotape of the defendant performing field sobriety tests. Id.

at 773-74. At Fettig's bench trial in municipal court, the trial judge viewed the
No. 67793-4-1/5


videotape. After the trial, the City negligently destroyed the tape. Id. At Fettig's

trial de novo before a jury in superior court, he moved to dismiss the charges

based on the destruction of the tape. He offered the testimony of the municipal

court judge who had viewed the tape to prove that the tape was material and

exculpatory. ]d. at 774. Based on the judge's proffered testimony that the video

"negated an impression of intoxication," we concluded that there was a

reasonable probability that the destroyed video tape tended to rebut the police

testimony while corroborating that of the defendant. Id. at 776. As such, the

video tape was both material and exculpatory to the defendant and its negligent

destruction by the City violated the defendant's right to due process.

       In contrast to Fettig, Densmore claims only that the video was material to

the central issue of identification and that it's availability would have been useful

to him in more effectively challenging the witnesses' testimony about the video.

But he does not claim that the surveillance video was exculpatory because it

refuted inculpatory evidence offered by the State. In the absence of such a claim,

Densmore must show that the State acted in bad faith by failing to preserve the

evidence. He fails to do so.

       Sandin testified that when Wahbi told him that he did not recall how to

copy the video, he told Wahbi "just save it and another officer will. . . follow up

and . . . hopefully obtain that video." Verbatim Report of Proceedings (VRP)

6/9/11 at 545. Wahbi tried to copy the video and corrupted his hard drive.

Detective Coats attempted, but failed, to retrieve the video from the hard drive.

This does not show that Wahbi was an agent of the State because he was not
No. 67793-4-1/6


acting at Sandin's direction when the video was destroyed. State v. Smith. 110

Wn.2d 658, 666, 756 P.2d 722 (1988) (In order to prove that a private individual

was acting as a government agent,"[i]t must be shown that the State in some way

'instigated, encouraged, counseled, directed or controlled' the conduct of the

private person.") (quoting, State v. Wolken, 103 Wn.2d 823, 830, 700 P.2d 319

(1985)). In addition, because the State was not involved in the tape's destruction,

there can be no claim it was the result of improper motivation on the part of a

state agent. State v. Groth. 163 Wn. App. 548, 555, 261 P.3d 183 (2011), review

denied. 173 Wn.2d 1026, 272 P.3d 852 (2012). (In order to prove bad faith, a

defendant must show that the destruction was "improperly motivated.") (quoting

State v. Wittenberger, 124 Wn.2d 467, 478, 880 P.2d 517 (1994)). We affirm the

trial court's denial of Densmore's motion to dismiss or suppress the video on due

process grounds.

       Densmore next claims that the State failed to present sufficient evidence

of his identity as the perpetrator of the charged crimes to support his convictions.

Evidence is sufficient to support a conviction if, "after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt." Jackson v.

Virginia. 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citing

Johnson v. Louisiana. 406 U.S. 356, 362, 92 S.Ct. 1624-1625, 32 L.Ed.2d 152

(1972); State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). A claim of

insufficiency admits the truth of the State's evidence, and all reasonable

inferences from the evidence are drawn in favor of the State and interpreted most
No. 67793-4-1/7


strongly against the defendant. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936

(2006). Circumstantial evidence and direct evidence are equally probative.

State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier

of fact on issues of conflicting testimony, credibility of witnesses, and

persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824

P.2d 533 (1992).

       Wahbi testified that he recognized the three men on the surveillance video

of the burglary as the same three men he saw in the pub Saturday night. Bentler

identified Densmore and the Bowmans in photomontages as the three men he

saw in the pub on Saturday night. There was testimony that the three men took

turns walking to the bathroom and that entry to the pub had been gained through
a hole in the bathroom wall. Bentler and Harmston also saw the three men in a

dark four-door sedan outside the pub on Saturday night. The State presented

evidence that Densmore owned a dark four-door sedan. The State also

presented evidence that Densmore and the Bowmans were living in the same
house where police found clothing and a small sledgehammer and pry bars
covered with dust similar to drywall dust, as well as other tools consistent with

burglary tools. While it is true that no witness identified Densmore or his car in
court and the State did not present evidence directly linking the tools found in

Densmore's house to the burglary at the pub, the circumstantial evidence

presented by the State supports a reasonable inference that Densmore was one
of the three men who went to the pub Saturday night and returned early Sunday
No. 67793-4-1/8


morning to commit the burglary. Sufficient evidence supports the convictions

here.


        In his statement of additional grounds for review, Densmore first claims

that the trial court should have dismissed the case or excluded evidence of the

surveillance video because Officer Sandin had constructive possession of the

video when he watched it and his direction to Wahbi to save it for another officer

constituted bad faith. But as discussed above, there is no credible evidence of

bad faith in the record. We reject Densmore's conclusory assertions to the

contrary.

        Densmore next contends that the prosecutor committed misconduct by

introducing ER 404(b) evidence specifically excluded in pretrial motions during

the examination of Detective Dennis Montgomery. Prior to trial, the trial court

denied the State's motion to allow the introduction of evidence of another

burglary, occurring at Jay's Market in Lake Stevens on February 17, 2009, in

which three suspects broke into a business after hours by making a hole through

drywall and then cut open a safe, to show modus operandi. But a review of the

record reveals that Detective Montgomery testified only about the items

discovered in Densmore's house and described them as consistent with burglary

tools and gear, some of which appeared to be covered with drywall dust.

Because Densmore does not claim or indicate that Detective Montgomery

testified that he was involved in any other burglary, crime, wrong or act in

violation of the pretrial ruling, Densmore is not entitled to relief.




                                            8
No. 67793-4-1/9


       Densmore next contends that he received ineffective assistance of

counsel because his attorney failed to (1) investigate the case prior to trial; (2)

seek suppression of evidence recovered in an illegal search and seizure; and (3)

report juror misconduct. We are not required to search the record to find support

for these claims. RAP 10.10(c). To the extent Densmore relies on matters

outside the record, a personal restraint petition is the appropriate means to raise

such issues. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).

       In his fourth ground for relief, Densmore claims he was denied his right to

be present at an omnibus hearing. Because no order or transcript for such an

omnibus hearing appears in the record on appeal, we cannot review this claim.
       Densmore next contends that the trial court erred by denying his motion

for a new trial based on juror misconduct. In particular, Densmore reported that

he had seen one of the jurors putting away a power cord, and claimed that the

juror must have been using a laptop computer in violation of the court's order.
The trial court denied the motion because the jurors were allowed to use

computers when they were not in trial or deliberating and there was no "indication
that there was anything improper the juror was doing." (VRP 8/4/11 at 620).

Densmore claims that the trial court should have held a hearing to inquire what

the juror was doing. But Densmore offers nothing in the record to support his
pure speculation regarding the juror's actions. He is not entitled to relief.
        In his sixth ground, Densmore claims for the first time on appeal that the
State violated his right to due process by delaying the filing of charges for over a
year while waiting for the outcome of a trial in Snohomish County. But to review
No. 67793-4-1/10


this claim, we must also consider the State's reasons for the delay, if any. State v.

Qppelt. 172 Wn.2d 285, 257 P.3d 653 (2011) (to determine whether

preaccusatorial delay violates due process, court balances prejudice to

defendant against State's interests justifying delay). Here, because the claim

was not raised below, there is no record of the State's reasons for the alleged

delay. Thus, the record is insufficient for us to consider this issue and we decline

to address it.


       Finally, Densmore challenges the sufficiency of the State's evidence to

prove burglary, arguing that no witness testified that he entered or remained

unlawfully in a building. However, as discussed above, the State presented

sufficient evidence to allow a reasonable jury to find beyond a reasonable doubt

that Densmore was one ofthe three men who participated in the burglary.1
       Affirmed.




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WE CONCUR:




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         1 Densmore also contends cumulative error warrants reversal. However, given the
disposition of the other issues, we reject this argument.

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