           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION ONE

THE STATE OF WASHINGTON,                           No. 76222-2-1

                         Respondent,

                 V.                               UNPUBLISHED OPINION

STEVEN NICKOLAS VANDESTEEG,

                         Appellant.               FILED: July 23, 2018

       SCHINDLER, J. — A jury found Steven Nickolas Vandesteeg guilty of possessing a

stolen car and attempting to elude a pursuing police vehicle. Vandesteeg seeks -

reversal, arguing the court abused its discretion by denying the motion to suppress an

in-court identification because it was impermissibly suggestive and not reliable.

Because the identification was not so impermissibly suggestive as to give rise to a

substantial likelihood of misidentification, we affirm.

                                           FACTS

       On April 2, 2016 at approximately 9:10 a.m., Kent Police Department Officer

Kevin Bateman was driving his police car on 108th Avenue SE. Officer Bateman saw a

white Acura Integra "with no hood and no front plate." The driver was not wearing a

seatbelt. Officer Bateman could see the driver was an unshaven white male.
No. 76222-2-1/2

         When the Acura passed Officer Bateman, he saw "a side profile of the driver."

Officer Bateman called dispatch about the license plate. The car "didn't come back

stolen, but the plates didn't match completely with the description that was associated to

them."

         Officer Bateman drove his police car behind the Acura and turned on his

emergency lights. The driver of the Acura did not make "any effort to slow down." The

driver "made a hard left through the red turn arrow" down a dead-end street and "started

accelerating pretty rapidly."

         Officer Bateman blocked the Acura at the end of the street and got out of the

police car. The driver got out of the Acura and stared "straight at" Officer Bateman with

"that deer in the headlight look." The driver was wearing a light blue T-shirt and

"grungy, dirty blue jeans." Officer Bateman was about "fflifteen, twenty feet" from the

driver. The driver "looked back" at Officer Bateman as he climbed over the fence and

ran away.

      [H]e kind of froze for a few seconds. Stared at me. That's when 1 yelled
      stop. Police. After a couple seconds he took off running back towards me
      a little bit. .. Then he ran around the back of the car and continued
      running east towards the fence.

         Officer Bateman called for backup. The police did not find the driver.

         Officer Bateman described the driver in the police report as "[w]hite male, late

20s/early 30s, shaved with light brown hair, facial hair but not a beard, wearing a light

blue T-shirt and dirty jeans." Officer Bateman states the driver was 5 feet 8 inches to 5

feet 10 inches tall and between 160 and 180 pounds.

         Officer Bateman searched the car. After finding "shaved" keys, Officer Bateman

impounded the car to be processed for fingerprints. The Kent Police Department


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No. 76222-2-1/3

confirmed the car was stolen from the Fred Meyer parking lot in Maple Valley on April 1.

The car belonged to Magot Lewis. Officer Bateman initially closed the case because he

"didn't have any additional evidence or leads."

       The King County Regional Automated Fingerprint Identification System (AFIS)

processed the fingerprints obtained from the car. AFIS matched the fingerprints to

Steven Nickolas Vandesteeg. On May 24, Officer Bateman found two photographs of

Vandesteeg in the King County database) Officer Bateman instantly recognized

Vandesteeg as "the guy I was face to face with." Previous booking information listed

Vandesteeg's height as "six feet" and weight as "155 pounds." The Department of

Licensing listed Vandesteeg's weight as 180 pounds.

       The State charged Vandesteeg with possession of a stolen vehicle and

attempting to elude a pursuing police vehicle. Vandesteeg pleaded not guilty.

       Before trial, Vandesteeg filed a motion to suppress Officer Bateman's

identification of him. Vandesteeg argued the single-photo showup identification was

impermissibly suggestive and not reliable.

       Officer Bateman testified at the CrR 3.6 hearing. Officer Bateman stated that he

had worked for the Kent Police Department for 21 years. Officer Bateman testified that

he has "looked at a single photograph to make an identification" before. Officer

Bateman said he has "more often excluded people than included them" after looking at

a single photograph to identify someone. Officer Bateman testified, "[W]hat I do every

day is I look at people. I try to find people. . .. I'm trained to say, especially in a case

like this where I got a really good look at the person, that, yes, that's him." Officer



       1 One photograph was listed under the alias "Steven Moltrum."


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No. 76222-2-1/4

Bateman said that when the driver got out of the Acura, Officer Bateman was "very

specifically looking at him to see who he is and then also to make sure there's nothing

in his hands as well." Officer Bateman testified that the encounter "stood out" because

this "was the only case where I had somebody physically get out and take off and run

from me."

       Officer Bateman testified, "The instant! saw the booking photo I was like that's

the guy that I was face to face with." Officer Bateman said he was "100 percent" certain

that Vandesteeg was "the man that [he] had seen on April the 2nd."

      The court admitted into evidence the declaration of defense expert Dr. Geoff

Loftus. Dr. Loftus testified that a showup procedure is "intrinsically unreliable." Dr.

Loftus stated that there were "several specific issues" with Officer Bateman's

identification, including the time period between the event and the identification, that

Officer Bateman "carried out the showup procedure on himself," and that Officer

Bateman "already knew of the connection between the offending vehicle and Mr.

Vandesteeg."

       Vandesteeg argued the identification was impermissibly suggestive because

Officer Bateman knew that the fingerprints from the car matched Vandesteeg and

Officer Bateman looked at only a single photograph. Vandesteeg asserted the factors

under Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), weighed

against admitting the identification. Vandesteeg argued that Officer Bateman had an

opportunity to see him for only "30 seconds to a minute," his "attention was not that

focused," the description was "extremely generic," he inaccurately estimated

Vandesteeg's height and weight, and the identification occurred "months later."



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No. 76222-2-1/5

       The prosecutor conceded,"There's no question it's suggestive." The prosecutor

argued that based on the totality of the circumstances, the identification was reliable.

The prosecutor asserted Officer Bateman had sufficient opportunity to view the driver

from 15 to 20 feet away as he stood by the Acura and as the driver ran directly toward

him, and Officer Bateman's "degree of attention was extremely high." "[Officer

Bateman] got the gender right. He got the race right. He more or less got the height

right. He more or less got the weight right. He got the scurfiness on the face right."

The prosecutor noted Officer Bateman testified he was "certain" and there was "no

question in his mind" that Vandesteeg was the driver. The prosecutor argued the length

of time between the event and identification "is not dispositive."

       The court denied the motion to suppress the identification. The court ruled the

identification was "unnecessarily suggestive" but "even if an identification procedure is

found to be suggestive, suppression is not required unless the suggestiveness results in

a very substantial likelihood of misidentification."

       The court addressed the five Biggers factors and ruled that Officer Bateman's

identification was reliable and did not result in a substantial likelihood of

misidentification.

       The State called Magot Lewis, Detective Bateman, and AFIS latent fingerprint

examiner Amanda Wilson to testify at trial. Vandesteeg did not testify. Dr. Loftus

testified on behalf of the defense.

       The jury found Vandesteeg guilty of possession of a stolen car and attempting to

elude a pursuing police vehicle. The court imposed a 33-month sentence.




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No. 76222-2-1/6

                                        ANALYSIS

       Vandesteeg contends the court violated his right to due process by denying the

motion to suppress Officer Bateman's out-of-court and in-court identification. U.S.

CONST. amend. XIV; WASH. CONST. art I, § 3.

Findings of Fact and Conclusions of Law

       Preliminarily, Vandesteeg contends the lack of CrR 3.6 written findings of fact

and conclusions of law requires reversal or remand. Because the oral ruling is clear

and comprehensive, we disagree.

       When reviewing the court's denial of a CrR 3.6 suppression motion, we must

determine whether substantial evidence supports the trial court's factual findings and

whether those findings supports its conclusions of law. State v. Ross, 106 Wn. App.

876, 880, 26 P.3d 298(2001). To facilitate review, CrR 3.6(b) requires the court to

enter written findings and conclusions at the conclusion of the suppression hearing. A

court's failure to enter written findings of fact and conclusions of law following a

suppression hearing as required by CrR 3.6 is harmless if the oral opinion and the

record of the hearing "are 'so clear and comprehensive that written findings would be a

mere formality.'" State v. Smith, 76 Wn. App. 9, 16, 882 P.2d 190(1994)(quoting State

v. Smith, 68 Wn. App. 201, 208, 842 P.2d 494 (1992)).

       Vandesteeg relies on State v. Head, 136 Wn.2d 619, 622-24, 964 P.2d 1187

(1998), to argue we must remand for entry of findings. In Head, the trial court did not

enter findings and conclusions following a bench trial and the oral ruling did not

"sufficiently address" each of the eight counts separately. Head, 136 Wn.2d at 621-23.




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No. 76222-2-1/7

By contrast, here, the oral ruling clearly and comprehensively addressed each of the

five Biggers factors.

Photographic Identification

       We review a trial court's decision to admit identification evidence for abuse of

discretion. State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573(2001). We will not

disturb findings that are supported by substantial evidence. Kinard, 109 Wn. App. at

434. Substantial evidence is evidence sufficient to persuade a fair-minded, rational

person of the truth of the finding. State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076

(2006). We review conclusions of law on the suppression of evidence de novo. Levy,

156 Wn.2d at 733. Unchallenged findings of fact are verities on appeal. Levy, 156

Wn.2d at 733.

       Courts engage in a two-part analysis to determine whether the challenged

identification is admissible. State v. Vickers, 148 Wn.2d 91, 118,59 P.3d 58(2002). To

establish a due process violation, the defendant "bears the burden of showing that the

identification procedure was impermissibly suggestive." Vickers, 148 Wn.2d at 118. If

the defendant meets the burden of showing the identification procedure is impermissibly

suggestive, the court considers whether the totality of the circumstances indicates that

the identification was reliable. Biggers, 409 U.S. at 199. To determine whether the

identification was reliable, the trial court considers the five factors set out in Biggers: (1)

the opportunity of the witness to view the criminal at the time of the crime,(2)the

witness's degree of attention,(3) the accuracy of the witness's prior description of the

criminal,(4)the level of certainty demonstrated at the identification, and (5)the time

between the crime and the identification. Biggers, 409 U.S. at 199-200; Manson v.



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No. 76222-2-1/8

Brathwaite, 432 U.S. 98, 114-16, 975. Ct. 2243,53 L. Ed. 2d 140 (1977). The

"linchpin" of eyewitness identification is "reliability." Brathwaite, 432 U.S. at 114. "An

out-of-court photographic identification meets due process requirements if it is not so

impermissibly suggestive as to give rise to a substantial likelihood of irreparable

misidentification." State v. Linares, 98 Wn. App. 397, 401, 989 P.2d 591 (1999).

       Vandesteeg contends the identification was impermissibly suggestive because

Officer Bateman knew that the fingerprints on the car matched Vandesteeg and looked

at a single photo. The State does not contest the court's finding that the single-photo

identification was impermissibly suggestive. See State v. Maupin,63 Wn. App. 887,

896, 822 P.2d 355(1992)("The presentation of a single photograph is, as a matter of

law, impermissibly suggestive.").

       Vandesteeg challenges the court's analysis of the Biggers factors and the

conclusion that Officer Bateman's identification was reliable and not so impermissibly

suggestive as to give rise to a substantial likelihood of irreparable misidentification.

       1. Opportunity to View

       Vandesteeg challenges the finding that Officer Bateman had an adequate

opportunity to view the driver because the encounter was "fleeting and brief."

       But in Brathwaite, an undercover police officer identified the defendant from a

single photo. Brathwaite, 432 U.S. at 99, 101. The officer testified that he had

purchased drugs from the defendant in the hallway outside an apartment. Brathwaite,

432 U.S. at 100. The officer stood at the apartment door for two to three minutes.

Brathwaite, 432 U.S. at 114. The defendant opened the door twice to talk with the

officer, take payment, and hand over the drugs. Brathwaite, 432 U.S. at 114. The



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No. 76222-2-1/9

officer had moments to look directly at the seller. Brathwaite, 432 U.S. at 114. The

Supreme Court concluded that the officer's opportunity to view was sufficient.

Brathwaite, 432 U.S. at 114, 116.

       Substantial evidence supports the trial court finding that Officer Bateman had

"substantial and adequate opportunity to observe the driver of the stolen car." The

record shows Officer Bateman spent "30 seconds to a minute" to look at the driver.

Officer Bateman saw the driver "through his rearview mirror initially," "in profile as the

Acura passed him," and when the driver was "facing straight at [Officer Bateman] with

no obstructions at all" from 15 to 20 feet away. The driver ran toward Officer Bateman

and "got within 10 to 15 feet of him before turning away." The driver also "stopped

when he got to the fence and looked back at Officer Bateman before he then jumped

the fence and essentially disappeared."

       2. Degree of Attention

       Substantial evidence supports the finding that Officer Bateman was "observing

the other driver carefully" and that Officer Bateman was "paying close attention because

he didn't have any idea why the other driver had refused to stop and tried to escape."

Officer Bateman testified:

       I don't know why he's running at this point. The car didn't come back
       stolen, but the plates didn't match completely with the description that was
       associated to them, so... I suspect a potentially stolen car, but I don't
       know if he's armed. I don't know if he's got warrants, if he's wanted for
       something.

Officer Bateman described his "level of focus" as "very specifically looking at him to see

who he is."




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No. 76222-2-1/10

       Vandesteeg argues Officer Bateman was also looking "to make sure there's

nothing in his hands." But as in Brathwaite, Officer Bateman was a trained police officer

on duty and not "a casual or passing observer." Brathwaite, 432 U.S. at 115. Although

Officer Bateman's attention was not exclusively on the driver's face for the entire

encounter, the record supports the court's finding that Officer Bateman was paying

close attention.

       3. Accuracy of Prior Description

       Vandesteeg contends that Officer Bateman's description was not accurate

because Vandesteeg is "noticeably taller and thinner than the driver of the Acura."

Substantial evidence supports the finding that Officer Bateman described Vandesteeg

accurately in his report.

       The court found Officer Bateman described the driver as "a white male,

unshaven, but not actually having a beard," and "maybe mid 20s." Officer Bateman's

unrebutted testimony establishes the driver was a white male, late 20s to early 30s, with

short brown hair. Officer Bateman testified that the driver was unshaven but did not

have a beard and was wearing a blue T-shirt and "dirty jeans."

       Vandesteeg contends that Officer Bateman's identification was unreliable

because Vandesteeg's height and weight are different from the description. But the

record shows Vandesteeg's weight was not firmly established. A May 24 police booking

listed Vandesteeg's weight as 155 pounds but the Department of Licensing information

listed his weight as 180 pounds. Officer Bateman described the driver as weighing

between 160 and 180 pounds. The court found that Office Bateman was only "off a




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No. 76222-2-1/11

couple of inches or so on the height." The record shows Officer Bateman described the

driver's height as "five eight to five ten" and Vandesteeg is six feet tall.

       Substantial evidence supports the court's finding that Officer Bateman accurately

described Vandesteeg's "gender, race, and general build."

       4. Certainty of Identification

       Substantial evidence supports the court's finding that Officer Bateman was

certain about the identification. Officer Bateman stated that he knew Vandesteeg was

the driver "Mile instant I saw the booking photo." Officer Bateman testified he was "100

percent" certain that Vandesteeg was the driver.

       5. Length of Time

       Vandesteeg contends the identification was unreliable because two months

passed between the encounter and the identification.

       The court found that Officer Bateman made the identification "seven or eight

weeks after the time in question." The court concluded this was not an unreasonable

length of time. We agree. In State v. Cook, 31 Wn. App. 165, 639 P.2d 863(1982), we

held that two months is not "an impermissibly long period" between an event and the

identification. Cook, 31 Wn. App. at 173 (citing the seven-month delay between event

and identification in Biggers).

       In Brathwaite, the Court also weighed the reliability factors against the "corrupting

effect of the suggestive identification itself." Brathwaite, 432 U.S. at 114-16. The Court

concluded there was no coercive pressure on the witness to make a positive

identification. Brathwaite, 432 U.S. at 116. The officer had the opportunity to view the




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No. 76222-2-1/12

photo alone and at his leisure. Brathwaite, 432 U.S. at 116. The identification was

made "in circumstances allowing care and reflection." Brathwaite, 432 U.S. at 116.

       Here, as in Brathwaite, the trial court weighed the "corrupting effect of the

suggestive identification procedure against the factors indicative of reliability." The court

noted a "better practice would have been for the detective assigned to the case to

prepare a photo montage for Officer Bateman to review without giving him any

additional information." But the court found that Officer Bateman "was as concerned

about ruling [Vandesteeg] out as a suspect as in making an identification. The case had

been closed," and "there was no urgency" or motivation to identify a particular person.

       Substantial evidence supports the court's findings and the conclusion that after

weighing all the factors, Officer Bateman's identification was sufficiently reliable and

there was no substantial likelihood of misidentification.

       We affirm.




WE CONCUR:
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