                                                                             FILED

                                                                         July 2, 2013

                                                                In the O ffice of the Clerk of Court 

                                                              W A State Court of Appeals, Division nr    




              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                 DIVISION THREE 


STATE OF WASHINGTON,                         )
                                             )        No. 30385-3-111
                      Respondent,            )
                                             )
         v.                                  )
                                             )
NICOLE MARIE LOPEZ,                          )        UNPUBLISHED OPINION
                                             )
                      Appellant.             )

         SIDDOWAY, A.C.J. -   Nicole Lopez appeals her conviction of possession ofa

stolen motor vehicle, which was based on mismatching vehicle identification numbers

(VINs) on a Dodge Durango in her possession. The State and Ms. Lopez each had

coherent but conflicting accounts of whether the Durango in her possession was one she

purchased in 2007 or one that was stolen in 2008. We reject Ms. Lopez's argument that

the charges against her should have been dismissed on account of a State failure to

preserve evidence and her claim of insufficient evidence to support her conviction. We

agree, however, that the trial court committed reversible error when it excluded evidence

of a diagnostic test supporting her version of events. We reverse and remand for a new

trial.
No. 30385-3-111
State v. Lopez


                      FACTSANDPROCEDlrnALBACKGROUND

       There may be no way to present the facts of this case that will not make the

reader's head spin. Beginning with the version of events presented by the State might be

the clearest.

       A.       The State's Version of Events

       In October 2008, Raymond Munoz, who lived in Toppenish, reported his 2001

Dodge Durango stolen. His Durango was all black, with a gray interior. Its VIN ended

in the numbers 8028. Approximately a week later, Nicole Lopez, who lived in Zillah and

owned a 1998 Durango, originally green, reregistered her sport utility vehicle (SUV) as

having been repainted black with a red stripe. Her Durango was registered with a VIN

ending in 7932.

        In January 2009, Yakima County Sheriffs Deputy Steve Changala obtained a

search warrant in connection with his investigation of an unrelated stolen vehicle. In the

course of the search of a property in Union Gap, he encountered a green Durango that

had been stripped of its tires, wheels, and some of its parts. Its license plate was missing

and the VIN plate on the dashboard had been removed. The VIN he recorded from the

door and the glove box ended in 7932 and was reported by the Department of Licensing

(DOL) to be the VIN ofa Durango owned by Nicole Lopez. But DOL records indicated

that Ms. Lopez's Durango was by then black and red. The deputy did not impound the




                                                2

No. 30385-3-111
State v. Lopez


green Durango, photograph it, or collect any other evidence. He did note in his report

that its interior was brown.

       A week later, on January   16~   2009, the deputy stopped at the registered address for

Ms. Lopez's Durango and spoke with Ms. Lopez, who confirmed that she owned a black

and red Durango and told the deputy where it was parked. The deputy obtained a search

warrant for the SUV. He would later testify that the VIN plate on the dashboard of the

black and red Durango to which he was directed by Ms. Lopez matched the VIN for the

SUV registered to her (7932) but that the VIN reflected on the manufacturer's sticker on

the door did not; rather, it ended in 8028 and was the VIN for Mr. Munoz's stolen

Durango. The deputy would also testify that the VIN plate on the dashboard appeared to

him to have been tampered with. Concluding that Ms. Lopez had Mr. Munoz's stolen SUV

to which she had attached her dashboard VIN plate and mounted her license plate, he

impounded the Durango and had it towed to the Yakima County sheriffs secure lot, known

as the "bullpen," to be held as evidence. Report of Proceedings (RP) (Nov. 2, 2011) at

167. In December 2009, Ms. Lopez was charged with possession ofa stolen vehicle.

       Although the trial court ultimately did not admit evidence of events after the

January 16, 2009 date on which the deputy impounded the black and red Durango, we

continue with the history of relevant events, including procedural developments, largely

from the State's perspective. Evidence of these later events was presented in pretrial

hearings and conferences.

                                                3

No.30385-3-III
State v. Lopez


       Shortly after charges were filed against Ms. Lopez, Deputy Changala was asked

by the prosecutor to secure the abandoned green Durango, for evidence. When he

returned to the location where he had seen it, it was no longer there. Unbeknownst to the

deputy, the green Durango had been found abandoned in a drainage ditch in November

2009 by another officer, who impounded it without any idea it was relevant to a pending

criminal investigation. According to Deputy Changala, the day that the green Durango

was impounded proved to be the same day that Ms. Lopez transferred title to her Durango

to a woman named Stephanie Hawk.

       The green Durango recovered from the drainage ditch was evidently released from

impound. Nothing in the record indicates the date. Neither pretrial nor trial records

contain any documentary evidence of its release. Deputy Changala testified to his belief

that it was released by the towing company, John Boys Towing, to Ms. Hawk. He

admitted, though, that Ms. Hawk denied knowing anything about the green Durango

when he questioned her. He did not identify the source of his belief that the green

Durango was released to Ms. Hawk.

       Meanwhile, the black and red Durango seized from Ms. Lopez and impounded as

evidence was moved at some point from the secure bullpen to an unsecured sheriffs

parking lot. It was thereafter inadvertently released in March 2010 to Elite Towing, the

company that originally towed it. Since title had by then been transferred to Ms. Hawk,

she was notified of her right to recover it, which she did.

                                              4

No. 30385-3-III
State v. Lopez


      Ms. Lopez's lawyer had requested access to the allegedly stolen Durango to have

an expert examine it for a VIN that is marked on the engine. In following up on that

request for the prosecutor, Deputy Changala learned that the Durango he had seized and

impounded as evidence in January 2009 had been released by mistake. Upon learning of

the release, Ms. Lopez moved for dismissal of the charges against her, arguing that the

State had failed to preserve material exculpatory evidence.

       At the hearing on the motion to dismiss, Deputy Changala testified that he had

interviewed Ms. Hawk about her retrieval of the Durango from Elite Towing and was

told by her that upon recovering the SUV she turned it over to Ms. Lopez's boyfriend,

who loaned her money to obtain release of the SUV and was holding it as security until

repaid. (Ms. Hawk testified otherwise, as recounted below.) After hearing from the

deputy, Ms. Hawk, and other defense witnesses, the trial court denied the motion to

dismiss the charges, concluding that the State's release was inadvertent and that Ms.

Lopez could have arranged the desired examination through her boyfriend or Ms. Hawk.

       In mid-November 2010, Ms. Lopez's lawyer reported to the court that the black

and red Durango released to Ms. Hawk had been found. The lawyer was either unable or

refused to identify who had it but reported that whoever had it was willing to make the

SUV available for inspection, which Ms. Lopez believed would vindicate her. She

conceded that the State was entitled to inspect the SUV as well and represented that it

might be produced in short order-perhaps that day.

                                             5

No. 30385-3-II1
State v. Lopez


       Then, as a result of an unrelated disqualification of Ms. Lopez's lawyer, there was

a hiatus in proceedings for many months. The next reference in the record to the

relocated Durango was by Ms. Lopez's new lawyer, who reported to the court that the

relocated SlN had been impounded again by the sheriffs department. He had been

unable to arrange its release so that its onboard diagnostics system could be read for the

VIN stored in the SUV's onboard computer. The State had reservations about releasing

the Durango from the bullpen lest it again be accused of failing to preserve evidence.

       Ms. Lopez was granted an order releasing the Durango to a Dodge dealership for a

diagnostic test to identify the VIN. Upon completion of the test, the parties agreed that

the diagnostic test established that the SlN then in possession of the sheriffs office was

Ms. Lopez's Durango, VIN 7932.

       The State contended that this Durango revealed to be Ms . Lopez's-now black

and red-was actually the green Durango stripped in 2008, later found in a drainage

ditch, impounded, and ostensibly released to Ms. Hawk at some unidentified time. The

State contended that in an effort to frustrate prosecution, the green Durango had been

repainted to replicate the paint job on the SUV earlier stolen from Mr. Munoz.

       B.     Ms. Lopez's Version of Events

       Ms. Lopez purchased her Durango--then green-from EZ Buy Auto Sales in

2007. The owner ofEZ Buy testified that at the time of the sale to Ms. Lopez the SlN,




                                             6

No.30385-3-III
State v. Lopez


which had been rebuilt, still needed body work and a paint job. Ms. Lopez claimed that

she and her boyfriend repainted it black with a red stripe the following year.

       Shortly after the SUV was repainted, Mr. Munoz saw it in the parking lot of a

Toppenish fast food restaurant and believed it to be his stolen SUV. Mr. Munoz knew

who stole his SUV and the thief had no known connection to Ms. Lopez. But Mr. Munoz

recognized certain characteristics of Ms. Lopez's Durango and persuaded her to wait

while he flagged down a Toppenish patrol officer. With Ms. Lopez's permission, patrol

officer Derrick Perez checked the VIN plate on the dashboard and VIN sticker on the

door as Mr. Munoz stood waiting. Officer Perez confirmed with DOL that the VIN

number on the door was for a Durango belonging to Ms. Lopez. The plate on the

dashboard was partially obscured with dust or oil and he was unable to read the full VIN

from the plate.

       Ms. Lopez's defense theory highlighted inconsistencies and alleged shortcomings

in Deputy Changala's reports, including his report that the green Durango he concluded

was Ms. Lopez's had a brown interior, while hers was gray. She argued that the State

had no proof that the Durango the deputy seized and impounded in January 2009 bore a

VIN number ending in 8028 on its door sticker other than the deputy's testimony, and his

testimony conflicted with the SUV's examination several months earlier by Officer

Perez. She was never able to test the deputy's claim by examining the black and red

Durango when it was originally impounded as evidence.

                                             7

No. 30385-3-111
State v. Lopez


       Ms. Lopez's version of events, supported in pretrial testimony by Ms. Hawk, was

that Ms. Lopez and her boyfriend offered Ms. Hawk title to the Durango while it was

being held as evidence because Ms. Lopez needed to get another car and owning two cars

would disqualify her from medical coupons. Ms. Hawk accepted title knowing she might

never get the SUV. After the black and red Durango was released to her, Ms. Hawk sold

it for $5,000 to someone she could identify only as "a Mexican guy." RP (Oct. 15,2010)

at 62. When she learned later that Ms. Lopez needed the Durango for testing in her

defense, Ms. Hawk tried but was unable to find the buyer. Ms. Hawk denied that Ms.

Lopez's boyfriend loaned her money or that she had turned the Durango over to him.

When confronted with a statement she had signed for Deputy Changala identifying Ms.

Lopez's boyfriend, parenthetically, as the person who loaned her money to retrieve the

SUV, she claimed she was pressured to add the parenthetical identification by the deputy.

      Ms. Hawk contradicted the State's representation that the green Durango

recovered from a drainage ditch was ever released to her. She testified that she was never

contacted by John Boys Towing, never picked up a green Durango from the towing

company, and that she told this to Deputy Changala when he questioned her about a

green SUV.

      Ms. Lopez claimed that the black and red Durango relocated by the sheriffs

department in late 2010 or 2011 and still being held as evidence at the time of trial was

the same Durango Deputy Changala had seized and impounded as evidence in January

                                             8

No.30385-3-III
State v. Lopez


2009. She contends that the diagnostic test perfonned in 2011 proved that the only

Durango ever in her possession was the one she purchased from EZ Buy in 2007.

       C.     The Trial Court's Exclusion of Post-January 16,2009 Evidence

       Ms. Lopez did not have the opportunity to conduct the diagnostic test until the

afternoon of the day that trial was set to commence. The State learned that the results

supported Ms . Lopez's ownership of the SUV and conceded that the test was valid. The

next trial day, the State moved to exclude the results of the test and, for that matter, to

exclude all evidence and argument relating to events after the Durango was seized from

Ms. Lopez on January 16,2009.

       The State's reasoning was that with both Durangos outside its custody until the

sheriff s department relocated a black and red Durango in late 2010 or 2011, the

diagnostic test was not necessarily a test of the Durango it seized in January 2009. The

parties had a new dispute: Was the SUV presently in the possession of the sheriffs

department the one that Ms. Lopez bought in 2007, repainted in 2008, and that was seized

as evidence by Deputy Changala in January 2009, as she maintained? Or was it-as the

State maintained-the SUV she abandoned (still green), that was stripped and then

encountered by Deputy Changala while investigating other stolen property, that was

thereafter retrieved from a drainage ditch and released to Ms. Hawk, after which Ms.

Lopez or her boyfriend painted it to match the stolen Munoz vehicle?




                                               9

No. 30385-3-III
State v. Lopez


       The trial court heard from both sides on this issue over the first couple of days of

trial. It ultimately granted the State's motion, excluding, as irrelevant, evidence and

argument about events that occurred after January 16,2009.

       The jury found Ms. Lopez guilty. She appeals.

                                        ANALYSIS

       Ms. Lopez contends on appeal that (1) the State's failure to preserve material,

exculpatory evidence violated her constitutional right to due process; (2) the   tri~1   court

abused its discretion by excluding relevant evidence; (3) the State presented insufficient

evidence to establish that the Durango in her possession was stolen; (4) the State failed to

prove each of the alternative means presented to the jury; (5) the sentencing court erred in

finding Ms. Lopez had the present or future ability to pay costs; and (6) the trial court

erred in finding Ms. Lopez "used" a motor vehicle to commit possession of a stolen

vehicle when the SUV was the object of the crime.

       We reject her first and third assignments of error, which, if established, would

entitle her to reversal and dismissal of the charges. We agree with Ms. Lopez' s second

assignment of error to the exclusion of the diagnostic test and other post-January 2009

evidence and conclude that the error was not hannless. Because we reverse and remand

for a new trial, we need not address her remaining assignments of error.

       We address Ms. Lopez's two arguments for reversal and dismissal before turning

to her argument that the exclusion of evidence requires a new trial.

                                             10 

No. 30385-3-111
State v. Lopez


                                              1

       Ms. Lopez contends that the State's release of the black and red Durango seized

from her home was a failure to preserve materially exculpatory evidence that warranted

dismissal of the charges against her.

       Under both state and federal constitutions, due process in criminal prosecutions

requires fundamental fairness and a meaningful opportunity to present a complete

defense. State v. Wittenbarger, 124 Wn.2d 467, 474-75,880 P.2d 517 (1994) (citing

California v. Trombetta, 467 U.S. 479,104 S. Ct. 2528,81 L. Ed. 2d 413 (1984)). To

satisfy due process, the prosecution has a duty to disclose material exculpatory evidence

and a related duty to preserve it. Id. at 475. The State's failure to preserve evidence that

is material and exculpatory violates a defendant's right to due process and requires that

the charges against the defendant be dismissed. Id.

       Evidence is constitutionally material if it "possess[ es] an exculpatory value that

was apparent before it was destroyed and be of such a nature that the defendant would be

unable to obtain comparable evidence by other reasonably available means." Id. (citing

Trombetta, 467 U.S. at 489). "A showing that the evidence might have exonerated the

defendant is not enough." Id.

       Key to this assignment of error is whether the Durango, before its inadvertent

release, was constitutionally material evidence or merely potentially useful. The State's

failure to preserve evidence that is only potentially useful does not violate a defendant's

                                             11 

No. 30385-3-III
State v. Lopez


right to due process unless the defendant can show the State acted in bad faith. Id. at 477

(citing Arizona v. Youngblood, 488 U.S. 51,58,109 S. Ct. 333,102 L. Ed. 2d 281

(1988)). "Potentially useful" evidence is "evidentiary material of which no more can be

said than that it could have been subjected to tests, the results of which might have

exonerated the defendant." Youngblood, 488 U.S. at 57. This difference in treatment

between potentially useful evidence and material exculpatory evidence "is rooted in part

on a general unwillingness of the courts to 'impos[e] on the police an undifferentiated

and absolute duty to retain and to preserve all material that might be of conceivable

evidentiary significance in a particular prosecution.'" State v. Johnston, 143 Wn. App. 1,

12, 177 P.3d 1127 (2007) (alteration in original) (internal quotation marks omitted)

(quoting Witten barger, 124 Wn.2d at 475). Whether the evidence is material and

exculpatory is a question of law we review de novo. State v. Burden, 104 Wn. App. 507,

512,17 P.3d 1211 (2001).

       Beginning with the second part of the test for constitutional materiality, Ms. Lopez

was unable to obtain evidence for testing that was comparable to the Durango before its

inadvertent release. There is no better illustration of this than the State's objection to Ms.

Lopez's efforts to present the results of the 2011 diagnostic test, which the State

discredited based on the compromised chain of custody. No pictures were taken or

testing done while the Durango was in the bullpen, so no substitute existed for access to

the SUV itself. Lesser evidence was and remains available, as discussed in section III

                                              12 

No.30385-3-II1
State v. Lopez


below. But the seized Durango was the only piece of physical evidence that could have

decisively corroborated her claim that the seized SUV was her own.

       The exculpatory value of the evidence was not apparent to the sheriffs

department, though. In light of Deputy Changala's application for a search warrant and

report, the sheriffs department reasonably believed that the evidence was inculpatory.

While other evidence calls into question the reliability of the deputy's report of the

Durango's VIN, one can only speculate whether diagnostic tests taken while the SUV

remained in the sheriffs custody would have supported the prosecution or Ms. Lopez.

The Durango was only potentially useful evidence.

       Ms. Lopez bears the burden, then, of showing that the State acted in bad faith

when it released the Durango. The trial court found that the release of the Durango was

inadvertent, a finding that Ms. Lopez does not challenge on appeal-reasonably so, since

it was supported by substantial evidence. The trial court did not err in refusing to dismiss

the charges as a result of the sheriffs inadvertent release of the SUV.

                                             II

       Ms. Lopez next argues that her conviction must be reversed due to the State's

failure to present sufficient evidence that she ever possessed Mr. Munoz's Durango. It is

a dubious argument, since Deputy Changala's testimony alone, if believed by the jury,

established that Ms. Lopez's SUV was stripped, abandoned, and still green after she

claimed to have painted it black, while the Durango in her possession in January 2009

                                             13 

No. 30385-3-III
State v. Lopez


had the VIN for Mr. Munoz's Durango on the manufacturer's sticker on the door. Ms.

Lopez nonetheless argues that the evidence is fatally insufficient if the jury would have to

"selectively credit and discredit the State's evidence" to find for the State. Br. of

Appellant at 36.

       Ms. Lopez's argument characterizes evidence that the State never encouraged the

jury to believe as "State's evidence." For example, she points to Deputy Changala's

report in January 2009 that the green Durango he searched had a brown interior. At trial,

however, the deputy explained, and the prosecutor later argued, that the deputy examined

the SUV at night, using a flashlight, and could have gotten the interior color wrong. Ms.

Lopez argues that Mr. Munoz and Marlin Workman (a DOL inspector) testified

inconsistently about the type of interior (leather or cloth) in the Durango with which they

were familiar. But from the point of view of the State's theory, the two men were talking

about different SUVs.

       She finally argues that the jury's verdict required it to disbelieve Officer Perez's

testimony that his VIN check validated Ms. Lopez's ownership. We agree. But Officer

Perez admitted that he never prepared a report and never called in his ownership check

because it was a civil matter-the prosecutor made sure he established those facts in the

officer's direct examination. The State suggested to the jury in closing that Deputy

Changala's testimony was more reliable generally, because he had prepared reports. It

suggested that Mr. Munoz's recognition of his SUV in Ms. Lopez's possession in 2008

                                             14 

No.30385-3-III
State v. Lopez


could be more reliable because he had owned it for two years. As the prosecutor argued,

Officer Perez might not have had the right license plate and was possibly wrong about the

VIN, but "[w]e'll never know because he didn't have a report to refer to. He had nothing

in writing." RP (Nov. 3,2011) at 337. Although the State called Officer Perez in the

prosecution case, it was free to suggest that the officer's recollection was not as reliable

as other evidence.) Cf ER 607 (supplanting the common law "voucher" rule by

providing that "[t]he credibility of a witness may be attacked by any party, including the

party calling the witness").

       In reviewing a claim of insufficient evidence, we view the evidence in the light

most favorable to the State in order to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt. State v.

Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006). Credibility determinations are for the

fact finder and are not reviewable on appeal. Jd.

       Viewing the evidence in the light most favorable to the State can include crediting

evidence selectively if a rational jury could credit it selectively-·and particularly if the

State asks the jury to credit it selectively. Similarly, accepting the fact finder's credibility




       I By making the strategic choice to call Officer Perez, the prosecutor could
establish the facts that arguably made the officer's recollection less reliable than other
evidence and demonstrate, as he argued in closing, that the State had "nothing to hide"
from the jury. RP (Nov. 3,2011) at 336.

                                              15 

No. 30385-3-111
State v. Lopez


detennination can include accepting its apparent determination that a particular witness is

generally credible, even if not good at distinguishing colors with a flashlight at night.

       A rational jury could have viewed the evidence in the marmer urged by the State.

This jury evidently did. Its verdict is supported by substantial evidence.

                                             III

       Ms. Lopez next argues that the trial court's exclusion of evidence of events

occurring after January 2009 that bore on the reliability of Deputy Changala's report of

the Durangos ' VINs denied her constitutional right to present evidence in her defense.

       After the diagnostic test revealed the Durango in the State's possession to be Ms.

Lopez's, the State moved for an order in limine excluding the test and all other evidence

of events occurring after the January 2009 search and seizure. The State argued it was

required to prove that Ms. Lopez was in possession of a stolen vehicle on the day the

Durango was seized; anything occurring after that day was irrelevant. The trial court

agreed, and articulated an additional basis on which to exclude the evidence: because the

State conceded that the SUV then in its possession belonged to Ms. Lopez, the diagnostic

test addressed an issue that was not in dispute.

       The defendant in a criminal case has the constitutional right to present evidence in

his or her defense. State v. Hawkins, 157 Wn. App. 739, 750, 238 P.3d 1226 (2010)

(citing State v. Jones, 168 Wn .2d 713, 720, 230 P.3d 576 (2010)). The evidence must be

relevant; there is no constitutional right to have irrelevant evidence admitted. State v.

                                             16 

No.30385-3-III
State v. Lopez


Lord, 161 Wn.2d 276, 294,165 P.3d 1251 (2007). A trial court's decision to exclude

evidence will be reversed only where the trial court has abused its discretion. Jd. A trial

court abuses its discretion when its decision is "manifestly unreasonable or exercised on

untenable grounds or for untenable reasons." Jd. at 283-84.

       The threshold to admit relevant evidence is very low. State v. Darden, 145 Wn.2d

612,621,41 P.3d 1189 (2002). "Evidence tending to establish a party's theory, or to

qualify or disprove the testimony of an adversary, is always relevant and admissible."

State v. Harris, 97 Wn. App. 865, 872, 989 P.2d 553 (1999) (citing Lamborn v. Phillips

Pac. Chern. Co., 89 Wn.2d 701, 706, 575 P.2d 215 (1978)). If the evidence may have

caused the jury to reach a different conclusion, then excluding it would be an abuse of

discretion. State v. Cuthbert, 154 Wn. App. 318, 341,225 P.3d 407 (2010).

       Ordinarily, evidence of events taking place years after the date a defendant is

alleged to have possessed stolen property would be irrelevant. But ordinarily, Ms. Lopez

would have had the opportunity to test Deputy Changala's testimony as to the VIN he

observed on the door of the seized Durango by arranging for independent examination of

the impounded SUV. Under the unique circumstances of this case, the best diagnostic

proof of ownership she can offer is of the seized Durango (she contends), tested

following its release. The object of the evidence is not to prove postseizure facts, it is to

demonstrate, from evidence examined postseizure, that the Durango seized in January

2009 was the Durango owned by Ms. Lopez.

                                              17
No. 30385-3-III
State v. Lopez


       The evidence may well have caused the jury to reach a different conclusion.

       To begin with, the exclusion of all post-January 2009 seizure evidence invited the

jury to regard Deputy Changala's testimony as to the VIN he observed on seizing the

allegedly stolen Durango as implicitly unchallenged. As far as the jury knew, the deputy

had placed the stolen SUV "in evidence," presumably available for testing. Some of the

last acts to which Deputy Changala testified were that he called a tow truck to impound

the locked black and red Durango; the tow truck driver was able to unlock the door so

that the deputy could read the VIN on the manufacturer's sticker; it proved to be the VIN

ending in 8028 associated with Mr. Munoz's Durango; and the deputy then ran the VIN

though DOL, which confirmed that it was, indeed, the VIN for the stolen Munoz SUV.

       Critically, the very last act the deputy testified to was that after he confirmed that

the VIN was that of the stolen Munoz Durango, "I took the whole vehicle along with the

plates and the VIN plate on the dash that didn't belong to it. I took it to our bullpen at the

sheriffs office for evidence." RP (Nov. 2, 2011) at 166-67. Ms. Lopez's lawyer would

try to score defense points by establishing that the deputy took no photographs of the

SUV at that time but the State elicited the deputy's explanation why he did not need

photographs: "I took the whole vehicle and put it into our bullpen for evidence." Id. at

169. The State debunked defense questioning about why no crime lab work was done

when the SUV was seized on the same basis, asking the following questions and getting

the following responses from Deputy Changala:

                                              18
No. 30385-3-III
State v. Lopez


       Q. 	   And with the vehicle from January 18th, 2009, the 2001 black
              Durango, did you ever send that vehicle or any pieces of it, it sounds
              like, on that day to the crime lab?
       A. 	   No.
       Q. 	   Why didn't you do that?
       A. 	   I had the whole vehicle with all the evidence taken to our bullpen at
              the sheriff s office for evidence.
       Q. 	   Because it's in evidence, that's why you didn't send it to the crime
              lab?
       A.     Right.

Id. at 201-02. With it having been established that the "whole vehicle" was "in

evidence," and no information that the Durango ever left the sheriffs bullpen, a rational

jury could (indeed, might well) conclude that it had been available for further

examination on Ms. Lopez's behalf. A rational jury might conclude that if the seized

Durango did not have the VIN as reported by Deputy Changala, it would have heard

about that from Ms. Lopez's lawyer. Understanding that the stolen SUV was "in

evidence" and available, the jury might have regarded the effort that Ms. Lopez did make

to discredit Deputy Changala as halfhearted.

       Beyond that unintended but possible implication of excluding evidence of events

following the seizure, Ms. Lopez was deprived of evidence that could have affirmatively

helped her defense. The trial court correctly concluded that, standing alone, the

diagnostic evidence did not help one side or the other because both agreed it was a test of

the SUV that Ms. Lopez owned. But Ms. Lopez's foundation for admitting the test

result, if believed by the jury, would have revealed the relevance and importance of the



                                            19 

No. 30385-3-II1
State v. Lopez


result. Although the record is incomplete as to all the evidence that was excluded, it

appears Ms. Lopez was prepared to lay a foundation that the Durango relocated and taken

into police custody in late 2010 or 2011 was the SUV seized from her possession as

stolen and that she could have presented evidence tracing the inadvertently released SUV

from the sheriffs department to Elite Towing, to Ms. Hawk, then to a man identified in

the record as Mike Hansen, then back to the sheriff, and ultimately to the examiner who

determined it to be Ms. Lopez's.

       Before a physical object connected with the commission of a crime may be

properly admitted into evidence, it must be satisfactorily identified and shown to be in

substantially the same condition as when the crime was committed. State v. Campbell,

103 Wn.2d 1,21,691 P.2d 929 (1984). The proponent need not eliminate every

possibility of alteration or substitution. Id. A trial court is vested with wide discretion in

determining admissibility, see id., but here, by excluding all post-2009 evidence as

irrelevant, the trial court never heard the foundational evidence that Ms. Lopez claimed to

be able to offer.

       The fact that the State bothered to take the Durango into its possession in late 2010

or 2011 and was concerned that release for testing might compromise the chain of

custody suggests that the State believed, at least at one point, that it could establish a

sufficient foundation to use it as evidence. Minor discrepancies or uncertainty in

identifying an object and showing its substantially consistent condition will affect only

                                              20 

No. 30385-3-III
State v. Lopez


the weight of evidence, not its admissibility. Jd. The jury is free to disregard evidence

from such an object if it finds that the object was not properly identified or there has been

a change in its character. Jd.

       The trial court erred in granting the State's motion to exclude the evidence. In

fairness to the trial court, the results of the diagnostic test triggered a tectonic shift in the

State's posture toward post-January 2009 evidence; up to that point, the State had

planned to offer its own. It is clear from the record that everyone was struggling to

comprehend the implications of this transformation of an already complex trial landscape

and the arguments were not as well fleshed out in the trial court as they have become on

appeal. Nonetheless, Ms. Lopez knew the evidence was important and her objection was

sufficiently clear to preserve the error.

       The error was not harmless, even under the "overwhelming untainted evidence'

test" applied to a similar claim of erroneous exclusion of evidence in Lord, 161 Wn.2d at

295. Under this test, if the untainted, admitted evidence is so overwhelming as to

necessarily lead to a finding of guilt, the error is harmless. But cf id. at 302 (Sanders, 1.,

dissenting) (an error depriving a defendant of his constitutional right to present evidence

relevant to his defense is not harmless unless" 'trivial, or formal, or merely academic,

and ... not prejudicial to the substantial rights of the party assigning it, and in no way

[affecting] the final outcome of the case'" (quoting State v. Britton, 27 Wn.2d 336,341,

178P.2d341 (1947))).

                                               21
No. 30385-3-III
State v. Lopez


       The State emphasizes that the critical VINs were included in Deputy Changala's

reports, which were the product of routine, reliable police work undertaken with no

motive to lie. The evidence cannot be fairly characterized as overwhelming, however,

where there was viable evidence that conflicted with his routine reports. The diagnostic

test would have raised more questions.

       The trial court abused its discretion by excluding the diagnostic test and other

relevant post-January 2009 evidence. The error was not harmless. We reverse the

judgment and sentence and remand for a new trial.

       A majority of the panel has determined that 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.



                                              Siddoway, A.C.J.               V
WE CONCUR: 




                  I)
Brown, J .



Kulik,1.




                                            22 

