       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                   No. 70720-5-1

                     Respondent,                       DIVISION ONE


              v.



BENJAMIN ISAAC GRANT ROY,                              UNPUBLISHED


                     Appellant.                        FILED: January 20. 2015




       Cox, J. — A jury convicted Benjamin Roy of first degree robbery of a

financial institution. Roy appeals and argues that the trial court abused its

discretion in allowing the State to elicit testimony that police officers obtained a

sample of his deoxyribonucleic acid (DNA) by means of a search warrant. He

also contends that insufficient evidence supports his conviction because the

evidence failed to establish that the branch of Chase Bank where the robbery

occurred is a financial institution within the meaning of RCW 9A.56.200.

Because sufficient circumstantial evidence supports Roy's conviction and he fails

to show any other error, we affirm.

       On November 29, 2011, a man entered the Lake Stevens branch of

Chase Bank just before closing. The man wore a dark hooded sweatshirt, inside

out, with the hood pulled over his head, a bandana covering his face, and gloves.

He yelled "Nobody fucking move" while holding an object covered in black plastic

that appeared to be a gun and waving it from side to side. The man moved
No. 70720-5-1/2


toward Farah Siko, a lead teller and the only person at a teller station at the time.

The man pointed the object at Siko and demanded all of the cash in her drawer.

Siko activated an emergency switch under the counter to notify law enforcement

and gave the man all the cash in her top drawer, approximately $3,000. After

taking the cash, the man fled the bank on foot.

        Around that same time, David Look was driving through the intersection in

front of the Chase Bank branch when a man wearing a hooded sweatshirt darted

into the street from the direction of the bank. Look had to slam on his brakes to

avoid hitting the man. The hood fell off and Look briefly saw the man's face and

described him as a white male, in his late twenties or early thirties with sandy

hair.


        Police officers arrived at the bank shortly after the robbery. They called

for assistance from a K-9 unit. The dog followed a scent from the bank door to a

nearby field consistent with the suspect's path as indicated by witnesses. The

dog traced the scent to a discarded black hooded sweatshirt and a $100 bill that

police officers found in the field. Near these items, police officers found fresh

bicycle tracks. They did not locate a suspect.

        When they returned the following day to search the area in the daylight,

police officers recovered a garden hose nozzle shaped like a gun and covered in

a black plastic. The police sent the items retrieved to the Washington State

Crime Laboratory for DNA testing.

        About a year after closing the case, Lake Stevens police officers learned

from the crime lab that DNA from the evidence pertaining to the Chase Bank
No. 70720-5-1/3


robbery was tied to DNA evidence collected during the course of an investigation

into a later crime committed by Benjamin Roy. That crime was an attempted

robbery of a nearby drugstore. Based on information about the DNA match,

police officers obtained a search warrant to obtain a DNA sample from Roy.

Tests comparing Roy's DNA with DNA extracted from the sweatshirt showed that

Roy was a substantial contributor to the mixed sample of DNA and that the

probability of a match was one in 1,000 individuals.

      The State charged Roy with first degree robbery committed within and

against a financial institution, in violation of RCW 9A.56.200(1 )(b). Based on the

testimony of several bank employees and customers who witnessed the robbery,

the testimony of police officers, a forensic scientist, and Look, and evidence of

bank surveillance photographs taken during the commission of the robbery, the

jury convicted Roy as charged. The court imposed a standard range sentence.

       Roy appeals.

                  EVIDENCE OF WARRANT TO COLLECT DNA

       Before trial, the court granted Roy's motion in limine to exclude reference

to his prior convictions and involvement in the subsequent attempted robbery of a

drug store near the Chase Bank branch. The court also ruled that in order to

explain how Roy became a suspect in the case approximately a year after the

crime occurred, the State would be allowed to present limited testimony that a

national DNA database was the means by which Roy was identified as a

potential suspect, without mentioning his involvement in another crime. To this

end, forensic scientist Mariah Low testified that she discovered that Roy was a
No. 70720-5-1/4


potential contributor to the DNA extracted from the evidence by running the DNA

through a database about a year after the incident. Low said she then provided

Roy's name to law enforcement.

      Detective Jerad Wachveitl testified that upon learning that Roy was a

potential match, he obtained a search warrant to obtain a DNA sample from him.

The detective said it was "normal procedure" to obtain a warrant because law

enforcement may not "normally just walk up to people on the street and ask them

to give you samples of DNA." Detective Wachveitl also said he did not give Roy

the opportunity to consent before procuring the warrant.

       Roy objected to the admission of evidence that the police obtained a

warrant for a DNA sample. He argued that evidence about the warrant was

neither relevant nor necessary because the defense did not dispute that the

police obtained a DNA sample from him and submitted it for testing. Roy argued

that the evidence led to a "prejudicial impact that something negative" led to the

issuance of the warrant. But noting that the testimony would not disclose any

information about Roy's later attempted robbery and that jurors probably knew

that collecting DNA from an individual involves a legal procedure, the court

overruled Roy's objection and allowed the testimony.

      As he argued below, Roy contends that the testimony about the warrant

was not relevant because "it was undisputed that Roy's DNA was collected."

Roy also maintains that the prejudicial impact far outweighed any marginal

relevance of the evidence and the evidence was inadmissible under ER 403. ER

403 provides, in relevant part, that, "[although relevant, evidence may be
No. 70720-5-1/5


excluded if its probative value is substantially outweighed by the danger of unfair

prejudice

      To warrant reversal, evidentiary error must be prejudicial.1 Roy claims

that the testimony implied that the warrant was based on evidence of

wrongdoing. He maintains that a juror "would reasonably recognize that a court

had made an affirmative determination regarding Roy's guilt."

       We disagree. It is unlikely that Roy suffered unfair prejudice under ER

403 because the jury learned that the police obtained a DNA sample by means of

a warrant. Detective Wachveitl testified that the forensic scientist provided Roy's

name as a potential contributor to the DNA after running the DNA through a

database. He also testified that obtaining a warrant is normal procedure and that

authorities cannot just ask people to give DNA without one. Most people

understand that this is true. Roy does not challenge the admission of this

testimony that clearly explained the basis for the warrant. The detective's

testimony about the warrant explained the circumstances surrounding the

warrant and did not reveal Roy's later crime under which the DNA match came to

light. The reference to the warrant neither necessarily implied that Roy engaged

in other misconduct nor suggested that the court that issued the warrant made

any determination of guilt. Roy fails to establish unfair prejudicial error.

                         SUFFICIENCY OF THE EVIDENCE

       Roy claims insufficient evidence supports his conviction because the State

failed to establish that he committed robbery against a financial institution. We

again disagree.

       1 State v. Benn. 161 Wn.2d 256, 268, 165 P.3d 1232 (2007).

                                             5
No. 70720-5-1/6


       Under RCW 9A.56.200(1)(b), a person commits first degree robbery when

"[h]e or she commits a robbery within and against a financial institution as

defined in RCW 7.88.010 or 35.38.060." RCW 7.88.010(6) defines a "financial

institution" as "a bank, trust company, mutual savings bank, savings and loan

association, or credit union authorized by federal or state law to accept deposits

in this state." In accordance with these statutes, the instructions informed the

jury that in order to convict Roy, it had to find that "the defendant committed the

robbery within and against a financial institution." The instructions further

provided the following definition of financial institution:

       "Financial institution" means a bank, trust company, mutual savings
       bank, savings and loan association, or credit union authorized by
       federal or state law to accept deposits in this state.[2]

Although the first degree robbery statute alternatively allows a jury to find the

entity is a financial institution under the definition set forth in RCW 35.38.060, the

instructions included only the definition of "financial institution" as provided in

RCW 7.88.010(6).

       We review a defendant's challenge to the sufficiency of the evidence by

asking whether any rational trier of fact could have found the elements of the

crime beyond a reasonable doubt.3 In answering this question, we view the

evidence in the light most favorable to the State, drawing all reasonable

inferences in favor of the State.4 We consider circumstantial and direct evidence

to be equally reliable.5


       2 RCW 7.88.010(6).
       3 State v. Finch. 137 Wn.2d 792, 831, 975 P.2d 967 (1999).
       4 State v. Gregory. 158 Wn.2d 759, 817, 147 P.3d 1201 (2006).
       5 State v. Thomas. 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
No. 70720-5-1/7


       In State v. Liden.6 a jury convicted the defendant of first degree robbery

based on a robbery that occurred at the Heritage Bank in Tumwater,

Washington. Liden committed the robbery by informing the teller he wanted to

make a deposit and after the teller gave him a counter check to provide his

account number, he wrote "I have a gun" on the back of the check.7 The teller

gave Liden cash and he fled. Following his conviction, Liden filed a CrR 7.4

motion arguing that the State failed to provide any direct evidence that Heritage

Bank was lawfully engaged in banking or had legal authority to accept deposits.

While finding ample circumstantial evidence that the bank was a financial

institution, the trial court determined that the State failed to provide direct

evidence of the bank's legal status and therefore, failed to meet its burden of

proof.8 The court dismissed the first degree robbery conviction, and substituted

and imposed a conviction for second degree robbery.

       Division Two of this court reversed. Noting that the term "financial

institution" is included in numerous crimes within the criminal code, the court

stated that there was no evidence that the Legislature intended to depart in this

instance from the long-standing rule that circumstantial and direct evidence are

equally reliable. The court further held that requiring the State to submit direct,

rather than circumstantial, evidence to prove that an entity is a financial institution

would be "an absurd interpretation" of the law.9




       6138Wn. App. 110, 156 P.3d 259 (2007).
       7idat113.
       8 Jd at 115.
       9 Id. at 118.
No. 70720-5-1/8



       The court determined that the circumstantial evidence was sufficient to

establish that Liden committed robbery against a financial institution.

Specifically, the court pointed to the following evidence: (1) the counter check the

teller provided to Liden included the text, "Reserved for Financial Institution Use"

on the back, (2) the teller testified she was employed by the bank and was

working in that capacity at the bank when the robbery occurred, and (3)

customers who witnessed the robbery testified that they were there to make

deposits.10

       The circumstantial evidence here is even more significant than that in

Liden. As in Liden. the teller who was threatened during the robbery testified that

she was an employee of Chase Bank and was engaged in her capacity as a lead

teller at the time of the robbery. Siko was employed at the time of trial as branch

manager for a different branch of Chase Bank. Two other employees testified

that they were working as personal bankers employed by Chase Bank when the

robbery took place. According to their testimony, a personal banker at Chase is

responsible to assist customers with opening, closing, and servicing accounts.

Customers who witnessed the robbery testified about having checking accounts

at Chase Bank, doing their banking at the Lake Stevens bank branch, and said

they were at the branch to make deposits when the crime occurred.

      Travis Olsen, one of the employees who witnessed the robbery and was

employed by Chase Bank as an investment assistant at the time of trial,

expressly testified that Chase Bank is a bank. He said that Chase operates

under federal and state law in offering customer accounts and accepting

       10!dat119.

                                         8
No. 70720-5-1/9


deposits. Olsen said that his knowledge of the bank's legal status was based on

his personal knowledge and day-to-day activities as a bank employee and also

based on his knowledge of the deposit account agreement, a document that the

Bank maintains. Olsen testified that the bank openly engages in banking and

accepting deposits, openly advertises these services, and has never been closed

down by legal authorities.

       Roy contends that Liden was wrongly decided. He also argues that the

evidence to establish Chase Bank's status as a financial institution suffers from

the same deficiency as the evidence cited in Liden. According to Roy, the fact

that bank employees and customers engage in certain activities does not lead to

a reasonable inference that those activities are authorized by law. He maintains

that Olsen's testimony was insufficient because he had no knowledge of Chase

Bank's legal authority, his testimony about the deposit agreement was hearsay,

and because the deposit agreement was not itself admitted into evidence.

Although Roy states that he "takes no issue" with the holding of Liden. the

essence of his argument is that only direct evidence can establish that an entity

is authorized by state or federal law to accept deposits. We reject this position

and agree with Division Two's decision in Liden. A reasonable jury could infer

from the circumstantial evidence in this case that Chase Bank is a bank that is

"financial institution" within the meaning of the controlling statutes.
No. 70720-5-1/10


       Finally, Roy contends that cumulative errors prejudiced the outcome of the

trial. Because Roy has failed to demonstrate any error, we reject his claim of

cumulative error.11

       We affirm the judgment and sentence.



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       11 See State v. Price. 126 Wn. App. 617, 655, 109 P.3d 27 (2005).

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