                                                                                  Fig
                                                                          COURT Off' APPEALS
                                                                               DIVISION 11

                                                                         2015 AUG 18     AM 9, 03

                                                                         STATE OF WASHINGTON

                                                                          BY       on
                                                                                        UTY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II


 STATE OF WASHINGTON,                                                      No. 45922 -1 - II


                               Respondent,                         UNPUBLISHED OPINION


        V.



 DARRELL BERRIAN,


                               I1


       MORGEN, A. C. J. —   A jury returned verdicts finding Darrell Berrian guilty of attempted

first degree robbery, second degree assault, and first degree unlawful possession of a firearm.

The jury also returned special verdicts finding that Berrian was armed with a firearm during his

commission of   first degree robbery   and second   degree   assault.'   Berrian appeals his convictions,


asserting that ( 1) the prosecutor committed misconduct at closing argument by implying that

Berrian had committed uncharged offenses and ( 2) his counsel was ineffective for failing to

object to the misconduct and for failing to request a curative instruction. Berrian also appeals his

sentence, asserting that the trial court erred by imposing legal financial obligations (LFOs)

without considering his ability to pay the LFOs. Additionally, Berrian raises several issues in his




 At sentencing, the trial court dismissed Berrian' s second degree assault conviction on double
jeopardy   grounds.
No. 45922 -1 - II



statement of additional grounds for review ( SAG) that ultimately fail to establish grounds for

relief from his conviction or resulting sentence. We affirm.

                                             FACTS


        At approximately 8: 00 a.m. on July 7, 2013, Saroeun Dy went to an AM/PM gas station

in Tacoma to check on the status of his lottery ticket. Dy exited the store a couple minutes later

and returned to his vehicle. As Dy was opening his door, a man wearing a backpack came up

from behind him, pointed a gun at him, and told Dy to hand over his keys. Dy grabbed the barrel

of the gun. The man then punched Dy' s face and hit the back of Dy' s head twice with the gun

before fleeing the scene. After the man fled, Dy went back in the store and asked the clerk to

call the police.


        Tacoma Police Officer Brandon Cockcroft arrived at the AM/PM at 8: 19 a.m. in response

to Dy' s report of an attempted robbery. Dy described the robbery suspect' s appearance to

Cockcroft. That same morning, Tacoma Police Officer Samuel Lopez -Sanchez saw Berrian

walking about four blocks from the AM/PM; Berrian was not wearing a backpack at the time.

Believing that Berrian matched Dy' s description of the robbery suspect, Lopez -Sanchez stopped

Berrian, frisked him for weapons, and read him his Miranda rights. Berrian initially explained .

to Lopez -Sanchez that he had been walking from a nearby apartment complex but, upon further

questioning, told Lopez -Sanchez that he had been walking from a different direction and had

been looking for prostitutes. Berrian acknowledged that he did not have any money to pay for a

prostitute.




Z Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

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No. 45922 -1 - II



        After learning that a potential suspect was in custody, Cockcroft transported Dy to

Berrian' s location to confirm whether Berrian was the man that Dy alleged had tried to rob him.

After seeing Berrian,   Dy    told Cockcroft, "[ T] hat'   s   him 100   percent."   Report of Proceedings


 RP) ( Jan. 7, 2014) at 83.


        Two days later, on July 9, 2013, Tacoma Police Officer Gerald Turney went to a location

two blocks from the AM/PM in response to a report that two children had found a handgun.

Turney recovered a loaded .40 caliber semiautomatic handgun from the location. Turney also

found a black backpack in some bushes just down the street from where he had recovered the


handgun. The backpack contained clothing, several documents, and two cell phones. One of the

cell phones contained a photograph of Berrian as well as two photographs of a handgun identical

to the handgun that Turney had retrieved nearby. A majority of the documents contained in the

backpack consisted of mail addressed to people other than Berrian. One of the documents was a

traffic citation that had been issued to Berrian on June 6, 2013.


        On January 10, 2014, the State charged Berrian by amended information with attempted

first degree robbery, second degree assault, and first degree unlawful possession of a firearm.

The State further alleged that Berrian committed attempted first degree robbery and second

degree assault while armed with a firearm. At trial, the State presented witness testimony that

was consistent with the facts as stated above. The State also presented security video footage of

the. incident. In the video, the suspect can be seen carrying a backpack with a logo similar to that

on the backpack later retrieved near the scene. The video also shows the suspect wearing

clothing similar to the clothing found in the backpack. Additionally, the State presented an audio

recording of a phone call placed from the Pierce County Jail that was initiated with the individual




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No. 45922 -1 - II



pin number that had been assigned to Berrian. In this call the inmate can be heard asking a

woman to go to an area near the AM/PM to look for his backpack.


        During its closing argument, the State made a short reference to the documents contained

in the backpack that did not contain Berrian' s name, stating:

        It is his backpack         and   Why do I say that? Look at the evidence that tells
                                         his   gun.

        you it' s his backpack. One, there' s a traffic citation for him in the backpack. Now,
        that in and of itself isn' t going to tell you much because there' s hundreds of papers
        in there with various names on them. So it' s hard to say just because of the traffic
        citation alone that this is the defendant' s backpack.


RP ( Jan. 9, 2014) at 64. Defense counsel argued at closing that the other documents in the

backpack created a reasonable doubt that the backpack belonged to Berrian, stating:

                    Now, there' s one piece of paper that has Darrell Berrian' s name on it versus
           hundreds   of pieces of paper— I don' t know about the number, I didn' t think there

           was quite that many, but lots of pieces of paper with other people' s names on them.
           And two       of   these people have the       same    address.    Two of the people Franklin, I
           don' t know if they' re       married,     but have the    same   last   name, personal papers.   Did

            police officers] go and talk to either one of the Franklin' s and say, hey, is this your
           backpack? It has all your stuff in it, is this yours? No. If they had done that, it
           would be a whole different situation because either one of the Franklins will say,
           yeah, you' re right that' s my backpack. Whatever reason, it got stuck over here in
           this   area   on    Pacific Avenue.         Thank   you.     Or    no.     But you don' t have that
           determination. You don' t have that kind of evidence that really hammers home for
           you certainly that this is Darrell' s backpack.

RP ( Jan. 9, 2014) at 78. Defense counsel also argued that there was a reasonable doubt that

Berrian had possessed the handgun retrieved near the AM/PM because police did not determine

who owned the gun, did not find fingerprints on the gun, and did not find deoxyribonucleic acid

 DNA) on the gun. Then, during its rebuttal closing argument, the State referred to defense

counsel' s arguments regarding the other documents found in the backpack and the handgun,

stating:




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No. 45922 -1 - II



           Defense counsel] said, a missing piece of the puzzle is the mail from Mrs. and Mr.
        Cothers          or   Ms. Franklin.              There was the bulk of the documents in the backpack.
        There'       s   only      one citation or one piece of                 documentation for the defendant. Well,
        what would             that tell        you[?]       If they    came   in here,   what would      that tell     you[?]   We
        can        all   by the way, what their mail is doing— what their financial
                          surmise,

        documents are doing in this backpack. But why is all their mail—

RP ( Jan. 9, 2014) at 90. At this point, defense counsel objected, and the trial court sustained the

objection. The State continued:


                         Why       is   all   their   mail   in   a   backpack   with   clothing   used   in   a   robbery? Why
        is   all   that    mail         in there   with a phone         that has the defendant'    s   image       on it? What are

        they really going to tell you?
                         You' re told [by defense counsel] that there was a missing piece because we
           don' t know         who        the   owner of       the     gun   is. Well, here' s what we do know. It ain' t
        the defendant who' s the owner of the gun. You also may know if you' re a firearm
           owner that there' s no place that you register your gun that we can just go and
           determine          who owns a gun.                 We know that that gun don' t belong to the defendant
           because he' s a felon.


RP ( Jan. 9, 2014)            at   91.     Defense counsel did not again object to the State' s argument. The jury

returned verdicts finding Berrian guilty of attempted first degree robbery, second degree assault,
and first degree unlawful possession of a firearm, and returned special verdicts finding that

Berrian was armed with a firearm during his commission of first degree robbery and second

degree assault. The trial court dismissed Berrian' s second degree assault conviction on double

jeopardy grounds. The trial court also imposed certain LFOs. Although the trial court did not

address Berrian' s ability to pay the imposed LFOs at his sentencing hearing, Berrian' s judgment

and sentence includes a preprinted finding that he had the ability to pay the imposed LFOs.

Berrian appeals his convictions and sentence.


                                                                       ANALYSIS


                                                       1. PROSECUTORIAL MISCONDUCT


           Berrian first contends that ,the prosecutor committed misconduct during its rebuttal

           argument           by implying             that   he had    committed uncharged offenses.               We disagree.
 closing
No. 45922 -1 - II



             A defendant claiming prosecutorial misconduct must show both improper conduct and

resulting     prejudice.             State      v.   Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009). Prejudice exists


when there is a substantial likelihood that the misconduct affected the verdict. State v.

McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006). We review a prosecutor' s statements at


closing in the context of the total argument, the issues in the case, the evidence addressed in the

argument, and the jury instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003);

State   v.   Brown, 132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997). A prosecutor has wide latitude in


making arguments to the jury and may draw reasonable inferences from the evidence. Fisher,

165 Wn.2d at 747. Because Berrian did not object to the portion of the State' s closing argument

that he      now asserts constituted misconduct,                          he   must   demonstrate that the        misconduct was "` so




flagrant      and       ill -intentioned that it          evinces an       enduring     and   resulting   prejudice"'      and was




incurable by a jury instruction. State v. Stenson, 132 Wn.2d 668, 719, 940 P. 2d 1239 ( 1997).

             Berrian asserts that the following statements by the State at closing argument improperly

suggested to the jury that he was guilty of committing uncharged offenses and, thus, constituted

flagrant misconduct requiring reversal of his convictions:

                           Why       is   all   their   mail   in   a   backpack    with   clothing   used   in   a   robbery? Why
             is   all   that   mail       in there     with a phone       that has the defendant'     s   image       onit? What are

             they really going to tell you?
                           You' re told [ by defense counsel] that there was a missing piece because we
             don' t know         who        the      owner of   the gun is.         Well, here' s what we do know. It ain' t
             the defendant who' s the owner of the gun. You also may know if you' re a firearm
             owner that there' s no place that you register your gun*that we can just go and
             determine who owns a gun. We know that that gun don' t belong to the defendant
             because he' s a felon.


RP ( Jan. 9, 2014)              at   91.     In asserting that the above statements constituted flagrant misconduct

requiring reversal of his convictions, Berrian relies on our decision in State v. Boehning, 127

Wn.     App.       511, 111 P. 3d 899 ( 2005).                  Berrian' s reliance is misplaced. In Boehning, the State



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No. 45922 -1 - II



referred to additional rape charges that it had filed but which were dismissed after the State

rested   its   case.
                       127 Wn. App. at 517. The State in Boehning argued that the dismissed charges

were supported         by the   victim' s   inadmissible    out- of-court statements.     127 Wn. App. at 519- 22.

We held in Boehning:

                       That the prosecutor dropped the three rape charges was not " evidence" from
          which reasonable inferences and arguments about the molestation charges could be
          made. "[      E] vidence" is "[   s] omething (including testimony, documents, and tangible
          objects)     that tends to   prove or   disprove the      existence of an alleged   fact." BLACK' S
          LAW DICTIONARY 595 ( 8th                    ed.    2004) (    emphasis   added).      Moreover, the

          dismissed rape charges were wholly irrelevant to the State' s case, and no reasonable
          inference regarding the content of H.R.' s out-of-court statements flows from the
          three dismissed        rape counts or     her   reluctance    to describe the   abuse at   trial.   The

          prosecutor was not raising reasonable inferences and arguments based on the
          evidence at trial.


                       The prosecutor' s repeated references to the dismissed rape counts and
          suggestions that H.R.' s statements supported those charges were uncalled for and
          impermissibly asked the jury to infer that Boehning was guilty of crimes that had
          been dismissed and were not supported by trial testimony. See State v. Torres, 16
          Wn.     App.    254, 256, 554 P. 2d 1069 ( 1976).          Such argument improperly appealed to
          the passion and prejudice of the jury and invited the jury to determine guilt based
          on improper grounds. This error alone compels reversal.


127 Wn. App. at 522.

          Boehning is distinguishable from the present case. Unlike in Boehning, here the State did

not specifically reference any uncharged offenses in its closing arguments. Rather, the State' s

argument was confined to the evidence at trial; namely, the presence of documents in the

backpack that did not belong to Berrian and witness testimony that police did not confirm

whether the backpack belonged to one of the individuals named in the documents, did not

determine the owner of the firearm, and did not find any fingerprints or DNA on the firearm.

The State argued also from Berrian' s stipulation that he had been convicted of a serious felony




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No. 45922 -1 - II



offense " prohibit[        ing]    him from owning          or   possessing    a   firearm." Clerk' s Papers ( CP) at 34


 emphasis added). 3

            With regard to the documents, the State did not argue that the presence of these


documents showed that Berrian was guilty of uncharged offenses but, rather, invited the jury to

apply its common sense to find an explanation for the documents' presence in the backpack apart

from possession of the backpack by one of the individuals named in the documents it contained.

This argument regarding the presence of the documents was a fair response to defense counsel' s

suggestion at closing that the State failed to meet its burden of proof because police did not

confirm whether the backpack belonged to one of the individuals named in the documents. See,

e.
     g., State   v.   Russell, 125 Wn.2d 24, 87, 882 P. 2d 747 ( 1994) (" It is                not misconduct ...   for a


prosecutor         to   argue   that the evidence does           not support   the   defense theory .. [   and] the prosecutor



       is entitled to make a fair response to the arguments of defense counsel.").


             Similarly, with regard to the firearm, the prosecutor did not argue that Berrian committed

an uncharged offense but, rather, fairly responded to defense counsel' s argument that the State

had failed to present evidence showing who owned the firearm and failed to collect any

fingerprints or DNA from the firearm. Because the prosecutor' s rebuttal closing argument did




3 In its entirety, Berrian' s stipulation provided:
                  Prior to July 7, 2013, the defendant had been convicted of a " serious" felony
             offense,      as   that term    is defined     by RCW 9. 41. 010( 1), that prohibited him from
             owning       or    possessing   a   firearm.   The defendant' s conviction was valid on July 7,
             2013.       At the time of his conviction, the defendant was informed that he. was not
             allowed to own or possess any firearm from that date forward until a court restored
             his   right   to do    so.   As of July 7, 2013, the defendant' s right to own or possess a
             firearm had not been restored.
                         The content of this stipulation shall be deemed by the jury as proved beyond
             a reasonable doubt.
 CP    at   34- 35.
No. 45922 -1 - II



not refer to evidence outside the record and because the prosecutor' s challenged statements were


made in fair response to arguments raised by defense counsel, Berrian fails to show that such

statements were improper. Thus, his prosecutorial misconduct claim fails.

                                  II. INEFFECTIVE ASSISTANCE OF COUNSEL


             Next, Berrian contends that his defense counsel was ineffective for failing to object to the

prosecutor' s statements addressed above and for failing to request a curative instruction with

regard to those same statements. We review ineffective assistance of counsel claims de novo.

State   v.   Binh Thach, 126 Wn.    App.   297, 319, 106 P. 3d 782 ( 2005).   To prevail on an ineffective


assistance of counsel claim, Berrian must show both that ( 1) counsel' s performance was deficient

and ( 2) the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687,.

104S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Brockob, 159 Wn.2d 311, 344- 45, 150 P. 3d 59


 2006).       Performance is deficient if, after considering all the circumstances, it falls below an

objective standard of reasonableness. State v. McFarland, 127 Wn.2d 322, 334- 35, 899 P. 2d

1251 ( 1995).       Prejudice results if the outcome of the trial would have been different had defense

counsel not rendered deficient performance. McFarland, 127 Wn.2d at 337. Because we have

held that the prosecutor' s challenged statements were proper, Berrian cannot show deficient

performance or resulting prejudice either from defense counsel' s failure to object to those

statements or from defense counsel' s failure to request a limiting instruction.

                                     III. LEGAL FINANCIAL OBLIGATIONS


             Next, Berrian contends that the trial court erred by imposing LFOs without first

considering his ability to pay the LFOs. Berrian' s judgment and sentence contains a preprinted

finding that he had the ability to pay the imposed LFOs. Berrian did not challenge this finding

 during sentencing, which occurred after our decision in State v. Blazina, 174 Wn. App. 906, 911,


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No. 45922 -1 - II



301 P. 3d 492 ( 2013), and before the Supreme Court' s reversal of that decision in State v.


Blazina, 182 Wn.2d 827, 344 P. 3d 680 ( 2015) (                   affirming Court of Appeals' exercise of

discretion to refuse to address issue raised for the first time on appeal, but exercising its own

discretion to        reach   the issue    and remand   to trial   court   for further   proceedings).   In State v. Lyle,


         P. 3d ,       2015     WL 4156773 ( Wash. App. Div. 2 July 10, 2015), we held that parties who

failed to challenge LFOs in sentencings after our decision in Blazina have waived those


challenges. Under Lyle, Berrian has waived his LFO challenge.4

                                                           IV. SAG


            Next, Berrian raises several claims of error in his SAG, which we address in turn.

A.   I
             Timely

             Berrian first asserts in his SAG that the trial court erred by granting a trial continuance

based on his defense counsel' s vacation, thereby violating his timely trial right. It appears that

Berrian is challenging the trial court' s grant of a continuance on August 12, 2013, in which the

trial court' s written order continuing trial indicates that defense counsel was on leave on the

scheduled          trial date   of   August 27, 2013. It is unclear whether the " leave" referred to in the order


was for a vacation. At the hearing addressing the continuance motion, defense counsel requested

a continuance, over Berrian' s objection, to allow him to adequately prepare a defense, and

defense counsel indicated that his investigator was awaiting certain information.

             CrR 3. 3( f)(2) provides a basis by which a trial court may validly continue the start of

trial, stating:

                        On motion of the court or a party, the court may continue the trial date to a
             specified date when such continuance is required in the administration of justice
             and the defendant will not be prejudiced in the presentation of his or her defense. .
                   The court must state on the record or in writing the reasons for the continuance.


4 Judge Bjorgen dissented in Lyle, but follows its holding under principles of stare decisis.
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No. 45922 -1 - II



           The bringing of such motion by or on behalf of any party waives that party' s
          objection to the requested delay.

We will not disturb a trial court' s grant or denial of a continuance motion absent a showing of

manifest abuse of            discretion. State      v.   Cannon, 130 Wn.2d 313, 326, 922 P. 2d 1293 ( 1996). A trial


court abuses its discretion only where it bases its decision on untenable grounds or reasons. State

v.. Williams, 104 Wn. App. 516, 521, 17 P. 3d 648 ( 2001).

           Here, allowing counsel adequate time to prepare a defense is a valid reason to support the

granting of a continuance under CrR 3. 3. See, e. g., State v: Campbell, 103 Wn.2d 1, 14- 15, 691

P. 2d 929 ( 1984). Further, Berrian does not argue that he was prejudiced in the presentation of


his defense by the trial court' s granting of the continuance. Accordingly, the trial court acted

within its proper discretion by granting defense counsel' s continuance motion and, thus, the time

period of the continuance was properly excluded from Berrian' s time for trial period. CrR

3. 3( b)( 5), (   e)(   3), ( f)(2).    Therefore, Berrian fails to show a violation of his right to a timely trial.

B.         Witness Identification


           Next, Berrian appears to argue that his due process rights were violated by Dy' s

testimony identifying him as the person who had assaulted and attempted to rob Dy, but the

nature of Berrian' s argument on this issue is not sufficiently developed to merit judicial review.5

Accordingly,            we   do   not   further   address   it. See RAP 10. 10( c) ("[ A] ppellate court will not


consider a defendant' s [ SAG] for review if it does not inform the court of the nature and

occurrence of alleged errors.").




5
    Specifically, Berrian asserts in his SAG:
         Violation of my DUE PROCESS when Saroeun Dy testified about the
         identification[.]   Dy[' s] testimony was about what he seen [ sic] when he was
         driving   to the  scene  not the description giving [ sic] to officers[.] Dy doesn' t
           understand or speak English to give a description to officers.
SAG at 1.

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No. 45922 -1 - II



C.        Discovery


          Next, Berrian argues that the State failed to provide him with requested discovery

materials. However, there is nothing in the record before us to support this claim. To the extent

that facts outside the record support Berrian' s claim, we cannot address those facts in his direct

appeal.    See McFarland, 127 Wn. 2d           at   335 (" If a defendant wishes to raise issues on appeal that


require evidence or facts not in the existing trial record, the appropriate means of doing so is

through a personal restraint petition.")


D.        Ineffective Assistance of Counsel


          Next, Berrian argues that his counsel was ineffective for failing to file numerous

discretionary review motions and other motions upon Berrian' s request to do so. It is unclear

which motions Berrian is referring to. In the record before us, we have located only one

reference to a request by Berrian for his counsel to file a discretionary review motion and the

record shows that defense counsel had filed that motion. At sentencing, defense counsel stated:

          There has     also     been    a   motion— I.    believe Mr. Berrian      filed a Motion for
          Discretionary Review to the Supreme Court. And then on his instruction, I filed a
          Motion for   Discretionary         Review to the Court    of   Appeals. Both of those motions

          address the court' s evidentiary ruling pertaining to the showup identification.

RP ( Feb. 14, 2014)     at   7- 8.   To the extent that Berrian is referring to different motions that he

contends defense counsel failed to file, the substance of those motions is not in the record before

us. Accordingly, we do not further address this issue. McFarland, 127 Wn.2d at 335.

E.        Weight of the Evidence


          Next, Berrian raises several claims regarding the weight of the evidence supporting his

guilty   verdicts.   Specifically, Berrian directs our attention to the State' s failure to locate

fingerprints or DNA on the firearm, the poor quality of the security video footage showing the

assault and robbery, and the short amount of time in which Dy witnessed the person assaulting

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No. 45922 -1 - II



and attempting to rob him. But, as an appellate court, we cannot determine witness credibility or

reweigh     the   evidence.    State   v.   McCreven, 170 Wn.      App.   444, 481, 284 P. 3d 793 ( 2012),   review




denied, 176 Wn.2d 1015 ( 2013).               Accordingly, we do address this issue further.

F.         Cross -Racial Identification Jury Instruction


           Next, Berrian argues that the trial court erred by failing to give defense counsel' s

proposed cross -racial identification jury instruction, which proposed instruction stated:

                    In this case, the defendant, Darrell Berrian, is of a different race than
           Saroeun Dy, the witness who has identified him. You may consider, if you think it
           is appropriate to do so, whether the fact that the defendant is of a different race than
           the witness has affected the accuracy of the witness' original perception or the
           accuracy of a later identification. You should consider that in ordinary human
           experience, some people may have greater difficulty in accurately identifying
           members of a different race than they do in identifying members of their own race.
           You may also consider whether there are other factors present in this case which
           overcome any such difficulty of identification.

CP   at   47. In State   v.   Allen, 176 Wn.2d 611, 626, 294 P. 3d 679 ( 2013), our Supreme Court


declined to adopt a general rule requiring trial courts to give cross -racial identification jury

instructions where cross -racial identification was at issue in the case. In concluding that the trial

court did not abuse its discretion by failing to give a cross -racial identification instruction under

the particular facts of the case, the Allen court noted that Allen' s proposed instruction did not

explain any scientific foundation for the proposition that people have greater difficulty in

accurately identifying members of a different race and, thus, the instruction " would have been

misleading        and counterproductive."        176 Wn. 2d   at   625. Defense counsel' s proposed instruction


here similarly did not provide any scientific foundation for cross -racial bias and, even if it had

provided such scientific foundation, defense did not present any expert testimony at trial to

support such scientific foundation. Accordingly, following Allen, we conclude that the trial court




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No. 45922 -1 - II



did not abuse its discretion by declining to give defense counsel' s proposed jury instruction on

cross -racial identification.


G.        Admission of Jail Telephone Call Recordings


          Finally, Berrian argues that the trial court erred by admitting recordings of telephone calls

made from the Pierce County Jail because the State failed to present evidence that Berrian had

made those phone calls. We disagree.


          ER 901 requires that telephone recordings be properly authenticated or identified before

being admitted as evidence at trial. State v. Williams, 136 Wn. App. 486, 500, 150 P. 3d 111

 2007).    The party seeking to admit the recording, here the State, must present evidence

sufficient   to   support a   finding   that the   matter   in   question   is   what   its   proponent claims.   Williams,


136 Wn.     App.    at   500. "   A sound recording, in particular, need not be authenticated by a witness

with personal knowledge of the events recorded. Rather, the trial court may consider any

information sufficient to support the prima facie showing that the evidence is authentic."

Williams, 136 Wn. App. at 500. Here, the State presented evidence that the telephone calls at

issue were made using Berrian' s assigned inmate identification number. Additionally, in its

offer of proof, the State played the telephone recordings to the trial court in which a male inmate

can be heard asking someone named " Courtney" to look for a backpack near the location of the

AM/PM where Dy was assaulted. RP ( Jan. 8, 2014) at 79; Ex. 21B. Finally, the State presented

evidence that someone named " Courtney Berrian" had visited Berrian at the jail. RP ( Jan. 9,

2014) at 36. Taken together, the State' s evidence was sufficient to meet the authentication


requirements of ER 901.




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No. 45922 -1 - II



        We affirm Berrian' s convictions and resulting sentence.

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

Washington Appellate Reports, but will be filed f6r public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




 J CHANSON, C. J.




                                4




 SUTTONJ.




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