                                                                      3-1j n'p
                                                             COURT Cr APPEALS DiVI
                                                              STATE OF WASHlHuiOH

                                                              2013APR29 AH 10= 03
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                              No. 67843-4-1


                     Respondent,                  DIVISION ONE

       v.



JAMES R. HOLMES,                                  UNPUBLISHED


                     Appellant.                   FILED: April 29. 2013



       Cox, J.—James Holmes appeals his convictions for robbery, burglary, and

assault, arguing that we should abandon Washington's long-standing test for

identification procedures in favor of a different test used in several other states.

Because we are bound by Washington State Supreme Court decisions adopting

the test Holmes seeks to abandon, and because we decline to exercise any

inherent authority we may have to entertain the issue, we conclude Holmes'

argument must be made to the state supreme court. We also conclude that

Holmes' sentence enhancements are supported by sufficient evidence and that

his remaining arguments, including his pro se claims, lack merit. We affirm.

       In August 2007, police investigated a report that several armed men

unlawfully entered the home of Jessica Brevig and Jay Shelton and robbed and

assaulted them and their guests, Bryan Johnstone and Jennifer Tame.

       That fall, Brevig and Shelton viewed two photo montages of possible

suspects, but did not identify anyone.
No. 67843-4-1/2



       In January 2008, police showed two montages to Johnstone, but he also

could not identify anyone.

       In June 2009, police learned that DNA found on a glove fragment at the

crime scene matched Holmes' DNA.


        In February 2010, police prepared a montage that included a photo of

Holmes wearing wire framed glasses. Two other photos in the montage depicted

men wearing wire framed glasses. The other three photos were of men without

glasses. Brevig did not select any photo from the montage. Shelton, however,

picked Holmes' photo.

       In August 2010, the State charged Holmes with one count of first degree

robbery, one count of first degree burglary, and four counts of second degree

assault, all with firearm allegations.

       Prior to trial, Holmes moved to suppress the montage identification and

any in-court identifications on the ground that they were the product of an

impermissibly suggestive procedure. Dr. Jennifer Devenport, a psychology

professor and expert on memory and eyewitness identification, testified at the

suppression hearing. She concluded the montage procedure was suggestive

and created a likelihood of misidentification because only three of six photos

were of men wearing glasses, Holmes was the only person with a tattoo, the

witnesses were told before viewing the montage that police had obtained a DNA

match, the photos were presented simultaneously rather than sequentially, and

the presenting detective was aware of which photo was the suspect. Dr.
No. 67843-4-1/3



Devenport also identified several factors that could have affected the accuracy of

the witnesses' memory, including the stress and confusion of the robbery, the

limited ability of the witness to view the suspects during the robbery, the

presence of an apparent weapon, the difference in race between the suspects

and the witness, the poor lighting, the suspects' use of disguises, and the two-

and-a-half-year delay between the robbery and the photo montage procedure.

      The court concluded the montage was suggestive, but not impermissibly

or unnecessarily so, and denied the motion to suppress.

      At trial, the State's evidence established that on August 21, 2007, three

men, including Holmes, approached the Everett home of Brevig and Shelton.

They encountered Shelton outside the house. One of the men stuck a gun in

Shelton's stomach and threatened to kill him if he moved. The men then pushed

Shelton inside the house.


      Once inside, a man with a gun pushed Shelton and Brevig to the floor and

threatened to kill them. One of the other men demanded to know if anyone else

was in the house. Brevig told them her sister, Jennifer Tame, and her sister's

boyfriend, Bryan Johnstone, were downstairs.

      Two men went downstairs. While holding a gun, one of them ordered

Tame and Johnstone upstairs. The men then had all four victims sit on a sofa.

They demanded to know where money and keys to a safe were. One of them

took Brevig's wallet and keys out of her purse. One of the men with a gun took

Tame downstairs and then took her wallet, keys, and cell phone. In an attempt to
No. 67843-4-1/4



coerce them into revealing the location of the safe key, the men put a gun in

Brevig's mouth and held a gun to Shelton's head. One of the men repeatedly

struck Shelton in the head with the butt of a gun. One of the intruders struck

Johnstone with what appeared to be a gun.

       The men considered setting the victims on fire with gasoline they found in

the garage. Eventually, they tied the victims up with electrical cords and left.

After untying himself, Shelton went to a neighbor's house and called police.

Johnstone later discovered that approximately $40,000 in cash of his was

missing.

       Shelton identified Holmes in court as one of the robbers. None of the

other eyewitnesses identified Holmes.

       The jury found Holmes guilty of first degree robbery, first degree burglary,

and second degree assault of Shelton and Brevig. The jury was unable to agree

on the other two assault charges. By special verdicts, the jury found that Holmes

was armed with a firearm during each of the offenses. Holmes appeals.

                                      Identification


       For the first time on appeal, Holmes contends this court should abandon

Washington's long-standing testfor the admissibility of eyewitness identifications1
and adopt a new test "that better deters suggestive police practices and guards

against the admission of unreliable evidence at trial." He asks that we remand

for the trial court to apply the proposed test to the montage identification admitted

       1 State v. Vaughn. 1D1 Wn 7ri 604 610-11. 682 P.2d 878 M984V State v. Vickers. 148
Wn.2d 91, 118, 59 P.3d 58 (2002).
No. 67843-4-1/5



at his trial. He acknowledges that our supreme court adopted,2 and has long
adhered to, the federal test set forth in Neil v. Biqgers3 and Manson v.

Brathwaite.4 He also does not dispute that this court is bound by decisions of our

supreme court.5 Nevertheless, he urges us to exercise our inherent supervisory

power to create rules furthering sound judicial practice.6 We decline to do so.
          We need not consider issues raised for the first time on appeal.7
Moreover, Holmes' argument lacks a state constitutional analysis that could be

helpful in determining whether Washington should adopt the test used in a

minority of other states. In short, and in the absence of any challenge to the trial

court's application of Biggers and Brathwaite, we do not address these

arguments further.8
                                    Firearm Enhancements

           Holmes next contends the evidence is insufficient to support the jury's

special verdicts that he was armed with a firearm during the commission of the

offenses. We disagree.

          Evidence is sufficient to sustain an enhancement if, when viewed in a light

most favorable to the State, it permits a rational trier of fact to find the elements


          2Note 1, supra.
          3409 U.S. 188, 93 S. Ct. 375, 34 L.Ed.2d 401 (1972)
          4432 U.S. 98, 97 S. Ct. 2243, 53 LEd.2d 140 (1977).
          5 State v. Schmitt. 124 Wn.2d.662, 669 n.11, 102 P.3d 856 (2004).
          6 See State v. Martin. 171 Wn.2d 521, 537, 252 P.3d 872 (2011).
          7 RAP 2.5(a); In re Detention of Morgan. 161 Wn. App. 66, 85-86, 253 P.3d 394, 404
(2011).
          8 See State v. Allen. 161 Wn. App. 727, 745, 756, 255 P.3d 784 (2011) (where state
supreme court had previously ruled on the subject, issue ofwhether cross-racial identification
instruction should be required in light of modern research was for the supreme court, not the court
of appeals, to decide).
No. 67843-4-1/6



of the enhancement beyond a reasonable doubt.9 A defendant challenging the
sufficiency of the evidence admits the truth of the evidence and all rational

inferences that may be drawn from it.10 Circumstantial and direct evidence are
equally probative, and we defer to the trier of fact on conflicting testimony,

witness credibility, and the persuasiveness ofthe evidence."11
        To enhance Holmes' sentence in this case, the State had the burden of

proving that he or an accomplice was armed during commission of the crime with

a "firearm" -- i.e., "a weapon or device from which a projectile may be fired by an

explosive such as gunpowder."12 Holmes contends this burden required the
State to prove the firearms were "operable," even though the statute does not

use that word.13 The State disagrees, arguing that it was sufficient to show that

Holmes or an accomplice used a real gun.14
        We need not resolve the parties' disagreement regarding the State's

burden, because even assuming proof of operability is required, we have


        9State v. McKee. 141 Wn. App. 22, 30, 167 P.3d 575 (2007).
        10 State v. Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
        11 State v. Raleigh. 157 Wn. App. 728, 736-37, 238 P.3d 1211 (2010). review denied. 170
Wn.2d 1029(2011).
        12 Instruction 20, CP 75. RCW 9.41.010(7).
        13 See, e^, State v. Pam. 98 Wn.2d 748, 659 P.2d 454 (1983); State v. Recuenco, 163
Wn.2d 428, 437, 180 P.3d 1276 (2008) ("We have held that a jury must be presented with
sufficient evidence to find a firearm operable under this definition in order to uphold the
enhancement."); State v. Pierce. 155 Wn. App. 701, 714 n.11, 230 P.3d 237 (2010) (Where the
firearm is not presented as evidence, there must be "otherevidence of operability, such as bullets
found, gunshots heard, or muzzle flashes.").
        14 See Raleigh, 157 Wn. App. at 734-35 (firearm need not be operable during
commission of crime to constitute a firearm; statement in Recuenco is dicta), review denied, 170
Wn.2d 1029 (2011Y State v. Padilla. 95 Wn. App. 531, 535, 978 P.2d 1113 ("a disassembled
firearm that can be rendered operational with reasonable effort and within a reasonable time
period is a firearm"), review denied. 139Wn.2d 1003 (1999); State v. Faust, 93 Wn. App. 373,
380, 967 P.2d 1284 (1998) (language in Pam on operability refers to the difference between a toy
gun and a gun in fact; a gun incapable of being fired due to a mechanical defect is still a firearm).
No. 67843-4-1/7



previously held that operability may be inferred from evidence showing a threat to

use a real gun. In State v. Mathe. 35 Wn. App. 572, 581-82, 668 P.2d 599

(1983), affd, 102 Wn.2d 537, 688 P.2d 859 (1984), we held that the State proved

the defendant "used a real and operable gun" with testimony of two robbery

eyewitnesses who described the guns and the defendant's express or implied

threat to use them.15 Similarly, in State v. Bowman, 36 Wn. App. 798, 803, 678
P.2d 1273, review denied, 101 Wn.2d 1015 (1984), eyewitness testimony

describing a "real" gun and recounting a threat to use it was sufficient to establish

"the existence of a real, operable gun in fact.'AQ
        Here, all of the victims testified that they were threatened and/or assaulted

with guns. Shelton, who had experience with guns, testified that a man pulled

out "a slide top type Glock gun," put it in his stomach, and told him not to move or

he would kill him. One of the men put a gun in Brevig's mouth and told Shelton

he was going to shoot her if Shelton did not give them keys to a safe. When

Shelton said he did not have the keys, the man then put the gun against

Shelton's head and told Brevig he would shoot Shelton ifshe did not give them

the keys. Shelton described the gun as a "hard metal gun" that "felt absolutely

real." Brevig also saw the men handling a rifle and someone hit Shelton in the

         15 Mathe. 35 Wn. App. at 581-82.
         16 (Court's emphasis); see also Faust, 93 Wn. App. at 380 ("eyewitness testimony to a
real gun that is neither discharged nor recovered is sufficient to support deadly weapons and/or
firearms penalty enhancements"); State v. Goforth. 33 Wn. App. 405, 412, 655 P.2d 714 (1982)
(evidence was sufficient to support inference that "gun was operable in fact" where witnesses
who were familiar with shotguns testified that the defendant used a real shotgun); McKee, 141
Wn. App. at 29-32 (evidence was sufficient to supportfirearm enhancement given victim's
description of the weight and feel of the gun, the way in which defendantwielded it, and evidence
that defendant had a real gun and had access to other guns).
No. 67843-4-1/8



head with the butt of a gun. Tame and Johnstone testified that when the men

first entered, one of them held a gun as he ordered them to go upstairs. Tame

also testified that one of the men threatened to shoot her dog.

       Viewed in a light most favorable to the State, this evidence is sufficient to

support an inference that Holmes or an accomplice was armed with a firearm

during each of the offenses.

                                      Offender Score

        Holmes next contends the trial court erred in including a prior Texas

conviction for possession of a controlled substance in his offender score. He

argues that the State failed to carry its burden of proving that the Texas

conviction was comparable to a Washington felony. We review de novo the

calculation of an offender score.17

       Holmes contends the controlled substance could have been marijuana

and, if so, the State failed to prove comparability because possession of

marijuana is a felony in Washington only if the defendant possesses more than

forty grams and the State did not prove the amount Holmes possessed. But as

the State points out, the record demonstrates that Holmes' conviction was not for

possession of marijuana.18 Accordingly, this argument fails.




        17 State v. Parker, 132Wn.2d182, 189, 937 P.2d 575 (1997).
        18 See Clerk's Papers at 246; Exhibit 1, Sentencing (charged Texas Code section did not
include marijuana); Exhibit 8, Motion to Suppress, pg. 21 (listing case No. F0854671 as "POSS
CS COCAINE").
No. 67843-4-1/9



                            Statement of Additional Grounds

       Holmes raises additional arguments in his pro se statement of additional

grounds for review. Most of these arguments were either raised by Holmes'

counsel on appeal19 or involve witness credibility and the persuasiveness of the
evidence. These matters are solely for the trier of fact and are beyond the scope

of our review.20

       Holmes also claims the jury was not properly instructed on the standard of

proof for the firearm enhancements. He is mistaken. Instruction 20 stated that

"[f]or purposes of a special verdict, the State must prove beyond a reasonable

doubt that the defendant or an accomplice .. . was armed with a firearm .. . ."21
Instruction 23 also stated that "[i]n order to answer the special verdict forms 'yes,'

you must unanimously be satisfied beyond a reasonable doubt that 'yes' is the

correct answer."22

        We affirm the judgment and sentence.

                                                             <^X.T

WE CONCUR:




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       19 Holmes' argument concerning the sufficiency of evidence supporting the firearm
enhancements is raised by his counsel and addressed above.
       20 Note 11. supra.
       21 Clerk's Papers at 75.
       22 Clerk's Papers at 79.
