                                                                           FILED 

                                                                        JUNE 25,2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )        No. 29641-5-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
ALAN D. JENKS,                                )        UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. - Alan Jenks appeals his conviction of first degree robbery,

arguing that the trial court admitted other crimes' evidence in violation of ER 404(b),

allowed testimony by a DNA 1 analyst that violated his Sixth Amendment right to

confront witnesses, and that he received ineffective assistance of counsel. We find no

error or abuse of discretion and affirm.

                    FACTS AND PROCEDURAL BACKGROlmD

       On December 9,2008, a convenience store on Northwest Boulevard in Spokane

was robbed. The robber entered the store wearing a bandana to cover his face, a do-rag

to cover his hair, and brandished what appeared to be a nine millimeter handgun. He

ordered the store clerk, James Berg, to lay down on the floor. Bruce Denend, the

manager ofthe store, was working in the store's office and heard the robber command


       1 Deoxyribonucleic   acid.
No. 29641-5-111
State v. Jenks


Mr. Berg to lie down. He closed the office door, pulled up and watched what was

happening on the video generated by the store's surveillance cameras, and called police.

The video captured the robber's actions taking two 18-packs of beer from the store's

cooler, cigarettes from behind the counter, and leaving. In leaving the store, the robber

passed an entering customer, Tony Krebs.

       Mr. Denend followed the robber outside, keeping his distance. He saw the robber

take off what appeared to be a maroon sweatshirt before getting in a car and departing.

       Officer Scott Campbell soon arrived at the store, reviewed the surveillance tape,

and was taken by Mr. Denend to the area where he had seen the robber take off clothing.

The officer retrieved a long-sleeved maroon sweatshirt and a white do-rag from the

bushes, both of which matched the robber's clothing as captured on the surveillance

videotape.

       Because Mr. Denend believed he recognized the robber as a former regular

customer who had been captured by the video surveillance cameras shoplifting beer a

month earlier (on November 8), he retrieved the surveillance footage showing the

November 8 shoplifting. He provided that, and surveillance video of the December 9

robbery, to police.

       Detective Chester Gilmore was ultimately assigned responsibility to investigate

the robbery. With the help of other officers who were familiar with the defendant, Alan

Jenks, the detective identified Mr. Jenks as a suspect in the November 8 shoplifting and

                                             2

No. 29641-5-111
State v. Jenks


by extension, the robbery. He made an unsuccessful attempt to contact Mr. Jenks at his

home in December but left a business card, and Mr. Jenks contacted the detective

thereafter. By the time Mr. Jenks met with the detective in January 2009, he had short

hair, unlike the shoplifter and robber captured by the store's surveillance cameras in

November and December, both of whom had long hair. But in the course of his interview

by Detective Gilmore, Mr. Jenks admitted he was the individual who shoplifted the beer

in November. He also acknowledged cutting his hair several weeks before the interview.

He denied knowing anything about the December robbery, however.

       Spokane police sent the maroon sweatshirt and the do-rag to the Washington State

Patrol crime lab for DNA analysis. After the crime lab reported that it had completed

wearer profiles from the items, Detective Gilmore returned to Mr. Jenks's home to ask

for a DNA sample, and Mr. Jenks voluntarily provided a buccal swab. After all the DNA

profiles had been completed, crime lab personnel determined that the white do-rag had

DNA from at least three different individuals, with Mr. Jenks a possible contributor.

They estimated that one in four individuals would be identified as a possible contributor.

They determined that the maroon sweatshirt had DNA from two significant contributors,

with Mr. Jenks being a possible significant contributor. They estimated that one in

630,000 people would be identified as a possible contributor.

       In October 2009, the State charged Mr. Jenks with first degree robbery.




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No. 29641-5-III
State v. Jenks


       The first trial of the robbery charge took place in October 20 10 and resulted in a

deadlocked jury and a mistrial. The second trial took place in December 2010. In the

two-day trial, the State called as witnesses Detective Gilmore, Officer Campbell, Mr.

Berg, Mr. Krebs, Mr. Denend, and Lorraine Heath, a supervising forensic scientist in the

DNA section of the state crime lab.

       Pursuant to an ER 404(b) ruling on a pretrial motion in limine, the State was

permitted at both trials to offer and play the surveillance videotape of Mr. Jenks's

presence in the convenience store on November 8 for an identification purpose, although

the court ordered that there be no mention that Mr. Jenks's conduct in the videotape was

theft or shoplifting.

       It was revealed in Lorraine Heath's direct testimony that a former crime lab

employee, rather than Ms. Heath, analyzed the reference DNA sample obtained from Mr.

Jenks. Ms. Heath testified that when the crime lab was unable to locate the former

employee, Ms. Heath performed a new analysis of the do-rag and maroon shirt to prepare

the DNA profiles to which she testified at trial.

       The jury returned a verdict of guilty and the court sentenced Mr. Jenks to 60

months' confinement. He appeals. While the parties submitted their briefs in October

and November 2011, the appeal was stayed pending a decision in State v. Lui, 179 Wn.2d

457,315 P.3d 493 (2014), a confrontation clause case that was expected to address one of

the issues raised in the appeal.

                                              4

No. 29641-5-III
State v. Jenks


                                        ANALYSIS

       Mr. Jenks assigns error to (1) the court's admitting the November 8 video contrary

to ER 404(b), (2) the court's allowing testimony from a DNA analyst other than the

analyst who conducted the initial tests in violation of his Sixth Amendment right to

confront witnesses, and (3) ineffective representation by his lawyer in failing to object to

identification opinion testimony offered by Detective Gilmore and the DNA result

testimony by Ms. Harper.2

                                         1. ER 404(b)

       Mr. Jenks first argues that the November 8 surveillance video, which captured him

shoplifting two I8-packs of beer from the convenience store, was evidence of another

crime or wrong that should have been excluded under ER 404(b). 3

       The State moved in limine before Mr. Jenks's first trial for admission of the

evidence, arguing in its briefing that the surveillance video was admissible as evidence of




         2 Mr. Jenks also assigned error to cumulative error depriving him of his right to a
fair trial. Since we find no error or abuse of discretion, the contention of cumulative error
clearly fails and we do not address it further.
       3 ER   404(b) provides:

       [e]vidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.

                                             5

No. 29641-5-111
State v. Jenks


motive, opportunity, preparation, plan, knowledge, identity or absence of mistake or

accident. By the time the motion was argued, the State focused on the purpose of

identification, pointing out that the November 8 video showed Mr. Jenks without any

mask or hair covering and provided evidence of his height, his hair length, his dress, his

mannerisms and how he carries himself-all within a month of the robbery-that the jury

could compare to the December 9 video of the robbery.

       The defense responded that there was other evidence of what Mr. Jenks looked

like in the robbery time frame that the jury could compare to the December 9 video. It

argued that because shoplifting is another type of theft, the November 8 video would be

unduly prejudicial. But it then asked, if the court decided to admit the November 8

video, that no one describe Mr. Jenks as being engaged in a shoplifting. In its reply to the

defense argument, the prosecutor stated that "the state would stipulate that it will not

address the November 8th incident as a shoplifting." Report of Proceedings (RP) at 208.

       In announcing its decision on the in limine motion, the court ruled that the State

proved that the November 8 act occurred by a preponderance of the evidence, that the

video was admissible for the purpose of establishing Mr. Jenks's identity as the robber,

and that its probative value was not outweighed by undue prejudice. Having ruled the

video admissible, the court "accept[ed] the state's offer" that there would be no

discussion of shoplifting-"merely that the defendant was there, and then show the video,

and then he could pick it out, and the jury could make of it what they wish." RP at 213.

                                              6

No. 29641-5-111
State v. Jenks


       At the pretrial hearing for the December 20 I 0 trial, the State again indicated its

willingness to offer the November 8 video without any mention that it depicted a

shoplifting. In response, defense counsel noted that its position at the prior trial had been

that the video was not admissible under ER 404(b). But its expressed concern in the

December pretrial conference was that there be no testimony that Mr. Jenks was

committing shoplifting in the video. Mr. Jenks's lawyer concluded:

               So I would move to exclude that part of [Mr. Jenks's] conversation
       with Detective Gilmore where they talk about that ... as being a theft and
       Mr. Jenks makes admissions of that. It is not necessary to prove any sort of
       identity.
               If the state wants to prove he has been in the store, they certainly
       have that videotape. And I would think that certainly does it. And I kind of
       ask the Court to adhere to its prior ruling on that.

RP at 23 (emphasis added).

       On appeal, Mr. Jenks argues for the first time 4 that evidence admitted for the

purpose of showing identity must amount to evidence of a "modus operandi." Br. of

Appellant at 13-14. He argues that here, there are no unique commonalities between Mr.

Jenks's shoplifting on November 8 and the robbery on December 9. Before addressing

Mr. Jenks's specific argument, we review the well-settled standards under which trial



       4 The defense arguably abandoned objection to the court's admission of the video,
knowing that the court would limit how Mr. Jenks's actions could be described. And it
certainly never mentioned the "modus operandi" requirement that it argues on appeal.
But the State does not raise RAP 2.5(a) as an issue. While we may raise the rule sua
sponte, we choose to address Mr. Jenks's challenge on the merits.

                                              7

No. 29641-5-111
State v. Jenks


courts analyze the admissibility of evidence under ER 404(b) and under which their

decisions are reviewed.

       In order for a court to admit evidence of other wrongs, the court must: "( 1) find by

a preponderance of the evidence that the misconduct occurred, (2) identifY the purpose

for which the evidence is sought to be introduced, (3) determine whether the evidence is

relevant to prove an element of the crime charged, and (4) weigh the probative value

against the prejudicial effect." State v. Thong, 145 Wn.2d 630,642,41 P.3d 1159 (2002).

Mr. Jenks does not contest that the trial court conducted the required steps of the analysis.

Where the trial court correctly interprets ER 404(b), its ruling to admit or exclude

evidence of misconduct is reviewed for abuse of discretion. ld.

       As observed in Thong, evidence of bad acts may be "introduced to show identity

by establishing a unique modus operandi." 145 Wn.2d at 643 (emphasis added). Here,

however, a bad act was introduced to show identity not by demonstrating a modus

operandi, but by establishing a strong similarity in physical appearance between the

known perpetrator of one act and the partially disguised perpetrator of another. In none

of the cases cited by Mr. Jenks was the State offering visual evidence and asking the jury

to assess physical similarities between two perpetrators.

       It will be the rare case, to be sure, where the State has one piece of visual evidence

of an undisguised defendant committing a crime that it wishes to offer to prove that the

disguised perpetrator of another crime appears to be the same individual. This case might

                                              8

No. 29641-5-I11
State v. Jenks


be a first. The far more common use of "bad acts" evidence for identification purposes is

to show a common method of committing two crimes. Where that is the case,

Washington decisions do insist, as Mr. Jenks argues, that proof of a unique modus

operandi is required.

        But this unusual case of visual evidence of a defendant to show his physical

similarity to a disguised perpetrator is relevant evidence. While the quality of the videos

is too poor to say with confidence that the same man is in both videos, they do show men

of similar size, build, hair, gait, and clothing in the same location, filmed from the same

vantage points, only a month apart. The November 8 video has a tendency to make the

fact that Mr. Jenks is the robber in the December 9 video more probable than it would be

without the evidence-the test of relevance under ER 401. It is offered for a purpose

other than the purpose forbidden by ER 404(b) of showing that Mr. Jenks is a criminal

type.

        Mr. Jenks also argues that even if the November 8 video was relevant to the issue

of identity, "[a]llowing the jury to see the eight-minute video of what was obviously a

shoplift in progress ... was extremely prejudicial." Br. of Appellant at 16. Having

reviewed the video, we strongly disagree with the defense characterization. It is not

obvious from the video that a shoplift is in progress.

        Mr. Jenks is seen being somewhat circumspect as he takes two cases of beer from

the cooler-but not to a degree that would lead a viewer to automatically infer that he is

                                              9

No. 2964I-5-III
State v. Jenks


shoplifting. He makes no effort to hide the I8-packs. He walks, not runs, out of the

store. There is no indication of alarm from any other customer or store employee and no

store employee follows him. At most, the video shows that he does not stop to pay. But

since he appears in the video to interact with other customers who do approach and

engage in transactions with the store clerk, one could infer that a companion paid for the

beer.

        Having reviewed the video, we find it understandable why Mr. Jenks's trial lawyer

was most concerned that no one mention that a shoplifting had occurred. He declined a

limiting instruction precisely because jurors who would not infer a shoplifting from the

video might become suspicious if given a limiting instruction, explaining that "my

goal ... is to not have them conclude that he's committing a theft." RP at 27.

        We find no abuse of discretion by the court in admitting the October 8 video

subject to the limitations it imposed on what could be said about Mr. Jenks's actions.

                                II.    Confrontation Clause

        Mr. Jenks next argues that his rights under the confrontation clause of the United

States Constitution were violated when Ms. Heath testified at trial to test results obtained

by another crime lab employee. We stayed the appeal anticipating guidance from our

Supreme Court in Lui, and it proves controlling.

        In Lui, the defense objected to the testimony of the State's chief medical examiner

to the cause of a murder victim's death being asphyxia by strangulation; the time it would

                                             10 

No. 29641-5-111
State v. Jenks


take to die in that manner; the timeframe of the death; the fact that no drugs, alcohol or

nicotine were found in her system; the position of her body when found; and the odd

manner in which she was dressed. Lui, 179 Wn.2d at 465. The chief medical examiner

had not performed her autopsy nor performed or supervised the toxicology test. He relied

for his testimony on photographs taken during the autopsy by an associate medical

examiner, the notes she took of ambient and body temperatures, and a report prepared by

employees of the state toxicology laboratory. He also made several statements that were

taken from the associate medical examiner's autopsy report. Jd.

       The defense in Lui also objected to testimony to DNA testing results provided by

the associate director and technical leader of an outside laboratory to which DNA

samples had been sent. Jd. at 466. The associate director did not personally participate in

or observe the tests that generated electronic data on the samples but she did use the

electronic data to create a DNA profile that she testified "reflected '[her] own

interpretation and [her] own conclusions. '" Jd. (quoting 12 RP at 1484, 1507)

(alternation in original).

       To resolve Lui's challenge, our Supreme Court analyzed three opinions of the

United States Supreme Court dealing with the confrontation clause implications of

laboratory analysis reports where the analyst who performed the test did not testify.s Lui,


      S The Supreme Court analyzed Lui's challenge solely under the federal
confrontation clause, concluding that "[n]either the constitutional text, the historical

                                              11 

No. 29641-5-III
State v. Jenks


179 Wn.2d at 472; see Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527,

174 L. Ed. 2d 314 (2009); Bullcoming v. New Mexico, _ U.S. _, 131 S. Ct. 2705, 180

L. Ed. 2d 610 (2010); and Williams v. Illinois, _ U.S. _,132 S. Ct. 2221,183 L. Ed. 2d

89 (2012). A majority of the U.S. Supreme Court did not agree on a test for expert

witnesses in any of the three decisions, "making it very difficult for courts to effectively

follow." Lui, 179 Wn.2d at 478. 6 The court in Lui thus followed the results of the



treatment of the confrontation right, nor the current implications of adopting a broader
confrontation right support an independent reading of article I, section 22 [of the
Washington Constitution] in this case." Lui, 179 Wn.2d at 470.
       6  In Melendez-Diaz, 557 U.S. 305, a five justice majority of the Court determined
certificates identifYing bags of powder as cocaine were functionally equivalent to
affidavits and therefore were testimonial for purposes of the confrontation clause. 557
U.S. at 311. Because the certificates were testimonial and the defendant was not afforded
the opportunity to cross-examine the affiant, admission ofthe certificates into evidence
violated the confrontation clause. Id.
        In Bullcoming, 131 S. Ct. 2705, a five justice majority determined that a certificate
recording the defendant's blood alcohol level had an evidentiary purpose and was
sufficiently formal such that the confrontation clause was violated when the analyst who
performed the tests did not testifY at trial. 131 S. Ct. at 2715-16. Importantly, the analyst
who performed the test and created the certificate was on unpaid leave; as a result, the
defense was not presented with the opportunity to cross-examine said analyst regarding
incompetence, evasiveness, or dishonesty. Id. at 2715.
        In Williams, 132 S. Ct. 2221, the Court considered whether an expert witness may
use testimonial statements made by a nontestifYing witness, if those testimonial
statements are not admitted into evidence. 132 S. Ct. at 2223. In Williams, the State
called an expert witness to testifY that the DNA profile created by an outside laboratory
matched the DNA profile of the defendant created by the State's laboratory. Id. at 2227.
The Court, in a plurality opinion, found there was not a confrontation clause violation.
Id. at 2223. Four justices held that because the DNA profiles were not admitted to prove
the truth of the matter asserted, the testimony did not violate the confrontation clause. Id.
at 2228. Further, because the outside laboratory created the DNA profile prior to the

                                             12 

No. 29641-5-III
State v. Jenks


decisions and arrived at a test for expert witnesses "that does not conflict with Supreme

Court precedent." Id. at 462.

       The court reasoned in Lui that by its terms, the confrontation clause applies only to

"witnesses" "against" the defendant. U.S. CONST. amend. VI ("In all criminal

prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses

against him."). Experts "who make statements to the court" are witnesses for purposes of

the confrontation clause. Lui, 179 Wn.2d at 481. An individual who prepares a

statement similar to an affidavit is considered a witness. Id. at 481 (citing Melendez-

Diaz, 557 U.S. at 311). Similarly, an individual who provides live testimony concerning

the results ofa test is a witness. Id. (citing Bullcoming, 131 S. Ct. at 2713).

       The Lui court found that the word "against" "implies some adversarial element-

some capacity to inculpate the defendant." Lui, 179 Wn.2d at 481. Reading the words

"witness" and "against" together, "in the context of Supreme Court hints and the

reasoned practices of other jurisdictions," the Supreme Court arrived at a "working rule":

       If the declarant makes a factual statement to the tribunal, then he or she
       is a witness. If the witness's statements help to identify or inculpate the
       defendant, then the witness is a "witness against" the defendant.

Id. at 482,

identification of a suspect; the laboratory report was not inherently inculpatory. Id.
Justice Thomas provided the fifth vote for finding there was no confrontation clause
violation, reasoning that the DNA profiles compiled by the analyst from the outside
laboratory were not sufficiently formal such that they were testimonial in nature. Id. at
2260-61 (Thomas, J" concurring).

                                              13
No. 2964l-5-III
State v. Jenks



       Applying this analysis to the chief medical examiner and DNA analyst whose

testimony in Lui was challenged, the Supreme Court concluded that while the associate

medical examiner may have been a witness "by virtue of recording the temperatures, thus

creating factual information for later use by the court," she was not a witness "against"

the defendant because the facts recorded did not inculpate him. Id. at 493. Instead, it

was the chief medical examiner who, using his own professional knowledge and

experience, applied the facts to come to a conclusion inculpating the defendant who was

a "witness against" the defendant. Id. Similarly, because he arrived at his conclusions

through autopsy photographs, the chief medical examiner's opinion testimony regarding

the cause of death did not violate the confrontation clause. Id. at 494-95.

       But the Supreme Court concluded that the trial court erred in allowing the chief

medical examiner to report statements and information from the autopsy and toxicology

reports. Id. Those reports and their inculpatory conclusions were prepared by

nontestifying experts. For the chief medical examiner to repeat them violated the

confrontation clause. Id.

       As to the DNA evidence, the Supreme Court concluded that an expert who

performs the tests that merely produce DNA profiles is not a witness "against" the

defendant. Id. at 486-88. "[T]he only 'witness against' the defendant in the course of the

DNA testing process is the final analyst who examines the machine-generated data,


                                             14 

No. 29641-5-111
State v. Jenks


creates a DNA profile, and makes a determination that the defendant's profile matches

some other profile." Id. at 489. "[E]xperts may rely upon DNA profiles created by other

laboratory analysts when concluding there is a DNA match without violating the

confrontation clause." Id. at 483.

       As with the DNA profiles in Lui, the DNA profiles here did not gain their

inculpatory character until Ms. Heath testified to her conclusion that the wearer samples

were a match with the reference sample, and to the odds of those matches in the general

population. Mr. Jenks had the opportunity to cross-examine Ms. Heath. There was no

confrontation clause violation.

                         III.     Ineffective Assistance a/Counsel

       Mr. Jenks next argues that he received ineffective assistance of counsel when his

trial lawyer failed to object to opinion testimony by Detective Gilmore that Mr. Jenks,

and not Mr. Jenks's brother, was the individual in the November 8 video and to

similarities the detective observed between Mr. Jenks and the robber in the December 9

video. Mr. Jenks argues that his lawyer was also ineffective in failing to raise a

confrontation clause objection to Ms. Heath's testimony.

       "Washington applies the two-part Strickland test in determining whether a

defendant had constitutionally sufficient representation." State v. Tilton, 149 Wn.2d 775,

783, 72 P.3d 735 (2003) (citing Strickland v. Washington, 466 U.S. 668,687, 104 S. Ct.

2052,80 L. Ed. 2d 674 (1984)). A defendant must show both that he received deficient

                                             15 

No. 29641-5-111
State v. Jenks


representation and that he suffered some prejudice as a result. State v. Mierz, 127 Wn.2d

460,471, 901 P.2d 286 (1995) (citing Strickland, 466 U.S. at 687-89). Deficient

performance is determined using an objective standard of reasonableness. State v.

Stenson, 132 Wn.2d 668,705-06,940 P.2d 1239 (1997). Prejudice will result if

'" counsel's errors were so serious as to deprive the defendant of a fair triaL'" Mierz,

127 Wn.2d at 471 (quoting Strickland, 466 U.S. at 687). "This showing is made when

there is a reasonable probability that, but for counsel's errors, the result of the trial would

have been different." Id.

       Turning first to Detective Gilmore's testimony, Mr. Jenks argues that his trial

lawyer should have objected when, having been asked what he did upon learning that the

individual in the November 8 video was Mr. Jenks, the detective answered:

               [Detective Gilmore:] ... 1 actually pulled-looked at photos,
       actually of Mr. Jenks and of Mr. Jenks' brother, because 1 knew he had a
       brother not too far away from him in age and stature, and such.
               And so I looked at those photos and the video from November 8th
       that showed Mr. Jenks in the store. 1 was looking at that; yeah, that appears
       to be right to me, it sure appears to be the same person in the video as in my
       photo of Mr. Jenks. It did not appear to be his brother; looks different than
       that.
               [Prosecutor:] Did you notice similarities between Mr. Jenks in the
       November 8th, 2008 video and the person who went into the store on
       December 9th, 2008 who was wearing a bandanna around his face?
               [Detective Gilmore:] Yes. 

               [Prosecutor:] And what similarities did you take into account? 

               [Detective Gilmore:] Well, initially the person in both videos 

       appeared to be a person of short stature. He was listed in the computer as
       being 5'4/5'5. That is on the short end of adult males-and 1 guess would


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No. 29641·5-111
State v. Jenks


       be a lot smaller percentage of adult white males that are five·foot four, five·
       feet five. So the stature looked about the same on both.
               I believe the pants and shoes looked the same on both.
               And probably the most significant thing that was a unique-unique
       characteristic on.both videos is the long ponytail. I'm sorry, I don't believe
       the ponytail was visible in the second video. The ponytail that was pretty
       unique was in the November 8th video, but I think it was tucked under the
       jacket, so I don't believe it was visible in the second one. I apologize.
               But in the comparison of both, seeing both of these persons on the
       video and the movement in the store and the stature, and really everything
       about them that I could see, I thought this is the same person; that was my
       belief.

RP at 105-07.

       Mr. Jenks argues that because Detective Gilmore's testimony did not require

specialized knowledge or training, he was not testitying as an expert and that it was not

established that Detective Gilmore had any more insight on the issue of identity than

could be provided by the jurors.

       In State v. Hardy, 76 Wn. App. 188, 190,884 P.2d 8 (1994), the court held that

"[a] lay witness may give an opinion concerning the identity of a person depicted in a

surveillance photograph if there is some basis for concluding that the witness is more

likely to correctly identity the defendant from the photograph than is the jury." Id.

Applying the rule, the court concluded that a witness who "had known [the defendant] for

several years" and had seen the defendant in motion, was in a better position to identity

the defendant as the individual depicted in a grainy video than was the jury who only saw

the defendant sitting still at the defense table. Id. at 191.


                                               17
No. 29641-5-III
State v. Jenks


       Absent a reason to believe that the witness has a superior ability to make the

identification, it is an impermissible invasion of the province of the jury to admit such

evidence. State v. Jamison, 93 Wn.2d 794,613 P.2d 776 (1980) Guvenile detention

counselors were in no better position to identifY defendant from surveillance photographs

than were jurors).

       Testimony at trial established that Detective Gilmore was not familiar with Mr.

Jenks before the beginning of the investigation. He did not meet Mr. Jenks until after Mr.

Jenks cut his hair, so he was in no better position to identifY Mr. Jenks in the December

9,2008 video than the jury.

       If one of the two prongs of the Strickland test is absent, we need not inquire

further. State v. Hendrickson, 129 Wn.2d 61,78,917 P.2d 563 (1996). And "[i]fit is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice ... that course should be followed." Strickland, 466 U.S. at 697. Here, it is

clear that there is no reasonable possibility, let alone probability, that the trial outcome

would have been different had Mr. Jenks's lawyer objected and successfully cut off the

detective's testimony about his observations.

       The detective never claimed to know more about Mr. Jenks's appearance in

December 2009 than the jurors did and never claimed to have conducted a more expert or

careful review of the video than could be performed by the jurors. So it would have been

as obvious to the 12 jurors as it is to us that they were as capable as the detective of

                                              18 

No. 29641-5-111
State v. Jenks


determining whether the robber captured in the December 9 video was Mr. Jenks. The

jury was instructed, in part, that

                 You are the sole judges of the credibility of each witness. You are
         also the sole judges of the value or weight to be given to the testimony of
         each witness. In considering a witness's testimony, you may consider ...
         the opportunity of the witness to observe or know the things he or she
         testifies about.

Clerk's Papers at 22-23.

         The detective's opinion that the person in the November 8 video looked like Mr.

Jenks rather than like Mr. Jenks's brother was even less consequential. The jury heard

from the detective that Mr. Jenks admitted to being in the convenience store on

November 8. Mr. Jenks did not contend otherwise. There was literally no evidence or

argument that it was Mr. Jenks's brother who had been captured in the November 8

video.

         The jury was presented with far more important evidence that Mr. Jenks was the

robber in the form of the testimony of Mr. Denend, the results of the DNA testing of the

recovered sweatshirt, and the videotapes themselves. Mr. Jenks's trial lawyer may have

made the tactical choice not to interrupt the detective's explanation of the steps in his

investigation, knowing that the detective's opinion testimony was insignificant and

because the defense planned to emphasize part of that investigation itself: the facts that

Mr. Jenks voluntarily contacted the detective and agreed to be interviewed, and




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No. 29641-5-II1
State v. Jenks


voluntarily provided the buccal swab. Because no prejudice is shown, we need not

further examine whether counsel's performance was tactical or deficient.

      Finally, Mr. Jenks fails to demonstrate that his trial lawyer's failure to object to

Ms. Heath's testimony on confrontation clause grounds was ineffective assistance of

counsel. Ms. Heath's testimony did not violate the confrontation clause, as earlier

discussed. An o~jection to her testimony on confrontation clause grounds would

properly have been denied.

      Mr. Jenks fails to demonstrate ineffective assistance of counsel.

      Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





Brown, J.




Lawrence-Berrey, J.

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