                                                                                 FILED 

                                                                               JAN 16,2014 

                                                                       In the Office of the Clerk of Court 

                                                                     W A State Court of Appeals, Division III 





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

     STATE OF WASHINGTON, 	                         )         No. 31077-9-III
                                                    )
                          Respondent, 	             )
                                                    )
                   v. 	                             )
                                                    )
     PATRICK K. GIBSON,                             )         UNPUBLISHED OPINION
                                                    )
                          Appellant.                )

            BROWN, 1.-Patrick Gibson appeals his bench trial first-degree murder conviction

     for killing Brian Cole during a 1992 Spokane store robbery. In addition to evidence

     insufficiency, he contends the trial court erred in admitting (1) tainted in-court

     identifications, (2) evidence of a similar robbery the same day, and (3) deoxyribonucleic

     acid (DNA) evidence. Mr. Gibson in his pro se statement of additional grounds (SAG)

     generally asserts the trial court did not understand the evidence and suggests
1
i    prosecutorial misconduct. We fmd no abuse of discretion in the trial court's evidence
I    rulings, conclude the evidence sufficiently supports Mr. Gibson's conviction, and reject




!
     Mr. Gibson's SAG. Accordingly, we affirm.


!



}

No. 31077-9-III
State v. Gibson



                                          FACTS

       On November 7, 1992, two robberies occurred within three hours committed by a

man wearing a black baseball cap that read "Solid Gold," sunglasses, and a fake beard

(the disguise). The robber employed the same method of operation described below. The

first occurred at 5 :00 p.m. in Coeur d'Alene, Idaho. The second, the subject of this

murder case, occurred around 8:00 p.m. in Spokane. The disguise, method of operation,

and timing linked the two crimes but it was not until years later that DNA linked Mr.

Gibson as a suspect. The court at a later bench trialleamed, and generally found, the

following facts.

       In Coeur d' Alene, Teresa Benner was closing Kid's Fair, the store she owned with

her husband, Steve Benner, when a man wearing the disguise briskly walked through the

doors, displayed a small, silver handgun, and said, "'You are being robbed.'" Clerk's

Papers (CP) at 319. The man ordered Ms. Benner and employee Kathy Ward, to the

backroom where he found Mr. Benner and the Benners' two young children. The man

ordered Ms. Ward to handcuff Mr. Benner and zip tie herself to Ms. Benner, then

demanded cash, credit cards, and, unsuccessfully, personal identification number (PIN)

numbers. They gave the man approximately $100 in cash. Before leaving, the man

unsuccessfully tried to remove the handcuffs from Mr. Benner. When police arrived, the

victims described the man and his disguise, describing the beard as "Amish-style." CP at




                                            2

No. 31077-9-III
State v. Gibson

320. Police recovered a fingerprint from the handcuffs but it did not match Mr. Gibson.

The robber was not then apprehended.

       In Spokane, a man wearing the disguise entered Cole's Furniture and stated,

'''This is a stickup. '" CP at 322. He displayed a small, silver handgun and demanded

cash, credit cards, and PIN numbers. Michele Cole retrieved $18 from her purse and

handed it to her husband, Brian Cole, who handed it to the robber. The robber ordered

the Coles to the back of the store. Ms. Cole suffers from multiple sclerosis and drove her

scooter toward the back. Mr. Cole then asked, "'You wouldn't hurt a handicapped lady,

would you?'" Id. The robber responded, "'I might.'" Id. Before reaching the back of

the store, Ms. Cole heard a ruckus and a gunshot. When she turned around, she saw her

husband and the intruder struggling and crashing into furniture. Blood stained Mr. Cole's

back. The intruder fired a second shot, hitting Mr. Cole in the head and fled. The Coles

called 911. Mr. Cole died due to his injuries.

       At the crime scene, police found the robber's sunglasses, the black baseball cap,

and a clump of fibers from the fake beard. Ms. Cole described the robber as "clean-

shaven with a fake beard and a thin face, 5'8", thin, about 30 years old." CP at 324. By

chance, Heather Bender stopped her car at a well lit intersection directly in front of

Cole's and saw a man wearing the disguise pass about 10 feet in front of her car and

make a "beeline" toward Cole's. CP at 321. She described the man as 30-35 years old,

about 5' 11" and '''not heavy, not slim. '" Id.




                                              3

No. 31077-9-III
State v. Gibson

       In late 1993, the lead .detective Mark Henderson showed Ms. Cole a

photomontage. Ms. Cole was 85 to 90 percent certain the intruder was number four,

Hugh Knuttgen. The same day, Detective Henderson showed the same photomontage to

the Benners and Kathy Ward. Both Benners tentatively and separately identified number

four, Mr. Knuttgen, as the robber. Kathy Ward was unable to positively identify anyone.

Police later cleared Mr. Knuttgen of involvement.

      Also in 1993, Detective Henderson took the black hat to Washington, D.C. The

television show, "America's Most Wanted," used the hat to reenact the robbery. Three

people handled the hat: Detective Henderson, producer John Walsh, and actor, Trevor St.

John, each unintentionally causing DNA contamination.

      In April 2004, Detective Henderson submitted the hat, along with the sunglasses

found at the scene, to the Washington State Patrol Crime Lab (WSPCL). The crime lab

forensic specialist James Currie analyzed the hat for DNA. Specialist Currie

inconclusively found DNA from at least three people.

      In 2007, Spokane County Detective Lyle Johnston assumed responsibility for the

Cole murder case. In December 2010, he submitted the clump of fibers from the fake

beard to the WSPCL. The lab found DNA from one individual on the clump of fibers,

and ran it through the Combined DNA Index System (CODIS). CODIS reported the

DNA match to Mr. Gibson. The lab concluded a one in 3.1 trillion chance existed the

DNA on the clump of fake beard does not belong to Mr. Gibson. When Detective




                                           4

No. 31077-9-111
State v. Gibson

Johnston learned the DNA on the beard belonged to Mr. Gibson, he asked the crime lab

to analyze the hat collected from Cole's Furniture. The lab found Mr. Gibson potentially

contributed his DNA to the hat. But, because the hat contained at least three DNA

contributors, without more, one out of every two people in the United States could have

contributed DNA to the hat.

       Detective Johnston reviewed Mr. Gibson's file and learned he had not previously

been contacted nor considered a suspect. Detective Johnston checked the National Crime

Information Center (NCIC) records. The NCIC reported that the Federal Bureau of

Investigation (FBI) had arrested Mr. Gibson in 1994 for bank robbery. The FBI briefed

Detective Johnston on Mr. Gibson's bank robbing operation. His usual bank robbing

method, according to Special Agent Frank Harrill, included wearing a hat, beard, and

trench coat as a disguise.

       In April 2011, Detective Johnston prepared a photomontage of six photos,

including Mr. Gibson's 1994 driver's license photo. The bottom of the photomontage

admonished the suspect's photograph mayor may not be among those in the lineup, and

specified the witness was not obligated to make an identification. Detective Johnston

presented the photomontage to witnesses of both the Coeur d'Alene and Spokane

robberies. From the photomontage, Ms. Cole identified Mr. Gibson as her husband's

murderer. Mr. Benner identified Mr. Gibson as the man who robbed his store. Ms.

Benner and Ms. Ward could not positively identify anyone. Ms. Bender was not




                                           5

No. 31077-9-111
State v. Gibson

contacted. Detective Johnston did not follow the Spokane County Sheriffs office policy

manual explaining the best practices for using photos to identity suspects by being

involved in the investigation and not presenting the photos sequentially.

          On May 4, 2011, authorities arrested Mr. Gibson who was charged with first-

degree murder. At a May 17, 2012 pretrial hearing, the State sought to admit evidence

from the similar Coeur d'Alene robbery, arguing the evidence was relevant as res gestae

or, alternatively, under ER 404(b) exceptions for common scheme, plan, and identity.

The court reserved ruling until the State presented evidence about both robberies. Then,

the court admitted the Coeur d'Alene robbery evidence because it showed a common

scheme, plan, and identity. And, the court stated it would admit the evidence as res

gestae.

          At the May 17, 2012 pretrial hearing, the State informed the court it was

conducting DNA analysis on two pieces of evidence recovered from the scene of Mr.

Cole's murder, two white hairs extracted from the baseball cap and fluid found on sun

glasses. The crime lab, however, would not complete the testing until the 12th day of

trial. The court lectured this could require a lengthy continuance, explaining, "It doesn't

work that way. So either we stop this right now and reset it, or you know that we're

going to go through this trial and if you don't get it in time, you're not going to get it in

time .... 1 can't bifurcate a murder trial." Report of Proceedings (RP) at 90-91. After a

recess, the State informed the court the DNA analysis would be ready by June 11,2012.




                                               6

     I

    I

           No.31077-9-II1
    1      State v. Gibson

    1      The State and Mr. Gibson agreed to go forward, without knowing what the DNA results
    1      would show.
    I
    .J 	
    ~
                  At a bench trial on May 29, Mr. Benner, Ms. Benner, and Ms. Cole identified Mr.
    !
    J      Gibson, in court, as the person who robbed them in 1992. The defense unsuccessfully
    ~
           objected that the identifications were tainted by suggestive photo identification
1
I	
.
.   ~
           procedures and faulty memories .

i                 At the end of court on May 31, 2012, the State informed the defense it had sought
1
.,
I          DNA samples from Detective Henderson, Mr. Walsh, and Mr. St. John. With those

           samples, the State intended to link Mr. Gibson to the hat found at Cole's Furniture. The
1

I
~	


i
           State theorized if forensic analysts matched their DNA to the DNA found on the hat, their

           DNA could be excluded, allowing the crime lab to conclude with greater probability that

           Mr. Gibson contributed his DNA to the hat. 


I

I
                 On June 1,2012, the fourth day of trial, Mr. Gibson moved to suppress the


I

I
           additional DNA analysis results, arguing the State's analysis was untimely and 


I          prejudicial. Mr. Gibson emphasized his expert witness would not have time to retest the

I
I
           samples and the tests would impugn his alibi defense that he was on a fishing trip the
I
I
[	         weekend of the robberies. Further, Mr. Gibson conceded he wore the fake beard in the

           past, but claimed one of his bank robbing accomplices must have used the fake beard

           during the November 7 robberies. The court initially decided not to admit the results of

           the DNA comparison, unless the defense argued the hat was contaminated.




                                                       7
No. 31077-9-III
State v. Gibson

       On June 7, 2012, the State successfully asked the court to reconsider its ruling.

The court reasoned its prior ruling was based on a misunderstanding, explaining, "I

looked at it purely as a contamination issue .... That's not the issue .... It's an

exclusion issue and there is a huge difference." RP at 925. The .issue is whether an

analyst can isolate the DNA on the hat prior to contamination by excluding the "three

people who purportedly touched the hat." RP at 925. Because the DNA results would be

relevant and probative, the court admitted the evidence. Mr. Gibson argued "trial by

surprise." RP at 895. In response, the court granted Mr. Gibson a 30-day recess and

permitted him to call and recall any witness he desired to assuage any prejudice he

suffered relying on the court's previous decision. After the recess, Mr. Gibson recalled

witnesses and a DNA expert contesting the WSPCL's methods.

      After entering extensive findings of fact and conclusions of law, the trial court

found Mr. Gibson guilty as charged. He appealed.

                                       ANALYSIS

                                A. In-Court Identification

      The issue is whether the trial court erred in allowing the in-court identifications of

Mr. Gibson over his impermissibly-suggestive taint objections.

      We review a trial court's decision to admit evidence for an abuse of discretion.

State v. Sanchez, 171 Wn. App. 518, 579,288 P.3d 351 (2012) (citing State v. Kinard,

109 Wn. App. 428, 435,36 P.3d 573 (2001)).




                                            8

No. 31077-9-III
State v. Gibson

        "An out-of-court photographic identification violates due process if it is 'so

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

misidentification.'" State v. Vickers, 148 Wn.2d 91, 118,59 P.3d 58 (2002) (quoting

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

suggestiveness is established, we consider whether the challenged procedure created '" a

substantial likelihood of irreparable misidentification.'" Vickers, 148 Wn.2d at 118

(quoting Linares, 98 Wn. App. at 401). If, however, Mr. Gibson fails to make that

showing, our inquiry ends. Vickers, 148 Wn.2d at 118.

       Mr. Gibson argues the photomontages were impermissibly suggestive because

Detective Johnston did not follow his department's best practices when he presented the

photomontages to Mr. Benner and Ms. Cole. When the investigator, Detective Johnston,

presented the photomontages, he did so simultaneously, not sequentially. Mr. Gibson

argues picking one out of three photos is not a fair test of a witness's ability to identify a

suspect. His objections go to the weight of the evidence not its admissibility. The fact

finder decides the persuasiveness of properly admitted evidence, not an appellate court.

Nothing about the composition of the photomontage or the photos singles out one photo

from the others. Additionally, the photomontage provided the warning the defense expert

recommended that the suspect's photograph mayor may not be among those in the lineup

and that they were not obligated to make an identification. When they made their




                                              9

t
1
!
!
    No. 31077-9-III
1   State v. Gibson

I   identifications, law enforcement had not disclosed to the media that Mr. Gibson was a

    suspect.


I
i
           Presenting the photographs simultaneously is not suggestive per se. Sanchez, 171

    Wn. App. at 581 (citing State v. Outing, 298 Conn. 34,49-50, 3 A.3d 1 (2010)
!
f   (simultaneous photographic array is not unnecessarily suggestive, per se, even if not

J   administered in a double-blind procedure); State v. Marquez, 291 Conn. 122, 153-56,967

i
I
    A.3d 56 (2009) (until scientific research produces more definitive answers, due process

    does not require suppression of photographic identification that is not the product of a
I
l
1
    double-blind sequential procedure))). 


           Because Mr. Gibson fails to show the procedure was impermissibly suggestive, we 


    do not consider if the challenged procedure created '"a substantial likelihood of

    irreparable misidentification. ", Vickers, 148 Wn.2d at 118 (quoting Linares, 98 Wn.

    App. at 401).

           Mr. Gibson next argues the in-court identifications were improperly suggestive.

    In support, he cites a Maryland case where the court explained, "[A]n in court

    identification of the defendant as a perpetrator is inherently suggestive." Appellant's Br.

    at 24 (citing Wood v. State, 196 Md. App. 146, 159, 7 A.3d 1115 (2010)). The Maryland

    court explains, "[A] one-on-one show-up is suggestive, just as 99 out of every 100

    judicial or in-court identifications are suggestive .... A jury, however is perfectly

    capable of weighing the pluses and minuses of such an identification." Wood, 196 Md.




                                                 10 

No. 31077-9-111
State v. Gibson

App. at 159. A judge is just as capable, if not more, of weighing the pluses and minuses

of an in-court identification. Thus, we need not consider if the challenged procedure

created '''a substantial likelihood of irreparable misidentification. '" Vickers, 148 Wn.2d

at 118 (quoting Linares, 98 Wn. App. at 401). Considering all, we conclude the trial

court did not abuse its discretion when allowing the in-court identifications.

                        B. ER 404(b) Similar Happening Rulings

       The issue is whether the trial court erred under ER 404(b) in admitting evidence of

the similar Idaho robbery.

       We review ER 404(b) rulings for an abuse of discretion. State v. Stenson, 132

Wn.2d 668, 701, 940 P.2d 1239 (1997); State v. Lough, 70 Wn. App. 302,313,853 P.2d

920 (1993). A court abuses its discretion when its decision is "manifestly unreasonable

or based upon untenable grounds or reasons." Stenson, 132 Wn.2d at 701.

       ER 404(b) provides:

      Evidence of other crimes, wrongs, or acts is not admissible to prove the
      character of a person in order to show action in conformity therewith. It
      may, however, be admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity, or absence of
      mistake or accident.

      Before admitting ER 404(b) evidence, a trial court '" must (1) find by a

preponderance of the evidence that the misconduct occurred, (2) identify the purpose for

which the evidence is sought to be introduced, (3) determine whether the evidence is

relevant to prove an element of the crime charged, and (4) weigh the probative value




                                            11 

No. 31077-9-111
State v. Gibson

against the prejudicial effect.'" State v. Foxhoven, 161 Wn.2d 168,175,163 P.3d 786

(2007) (quoting State v. Vy Thang, 145 Wn.2d 630,642,41 P.3d 1159 (2002)). The first

requirement is uncontested ...

          Regarding the second requirement, the trial court admitted evidence from the

Idaho robbery under ER 404(b) exceptions for common scheme and plan, identity, and

under res gestae. Mr. Gibson argues evidence admitted under the common scheme and

plan exception may not be used to show identity. It is unclear whether the trial court

distinguished the exception for a common scheme or plan from the identity exception.

The Washington State Supreme Court does distinguish between the exceptions. See

Foxhoven, 161 Wn.2d at 179 (court permits evidence of prior misconduct for the purpose

of identity, but not under the common scheme or plan exception); 5 KARL B. TEGLAND,

WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE § 404.22, at 552-53 (5th ed.

2007). Because of this lack of clarity we tum first to identity, and then analyze res

gestae.

          Under the identity exception, Mr. Gibson solely disputes "whether the evidence is

relevant and necessary to prove an essential element of the crime." Appellant's Br. at 25;

Foxhoven, 161 Wn.2d at 175. To be relevant, evidence must tend "to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable." ER 401; see also Foxhoven, 161 Wn.2d at 176. Mr. Gibson argues the




                                              12 

No.31077-9-III
State v. Gibson

evidence was irrelevant because the court admitted evidence of an uncharged crime, by

an unknown assailant, whose description did not match his.

       Again, his objections go purely to the weight given the evidence, not its

admissibility. The court made substantial findings of fact detailing the similarities

between the crimes. Mr. Gibson challenges the court's ultimate conclusion, but he does

not challenge the findings of fact the court relied on to reach that conclusion. Those

findings are verities on appeal. Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 PJd 162

(2010) (citing Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002)). At trial

Mr. Gibson asserted an alibi defense, claiming he was fishing in the Puget Sound on

November 7, 1992. The court found the evidence from the Kid's Fair robbery relevant

because it contradicted Mr. Gibson's alibi, and proved an essential element of the crime:

his identity. The court concluded the same man robbed both stores. The evidence from

the Kid's Fair robbery increases the probability that Mr. Gibson robbed Cole's Furniture

and murdered Mr. Cole, thus establishing the relevance of the Kid's Fair evidence.

Foxhoven, 161 Wn.2d at 176.

      Mr. Gibson argues, even if the evidence is relevant, it is unfairly prejudicial, but

he does not explain how the evidence is unfairly prejudicial. The trial court found the

evidence was highly probative and outweighed any prejudice. The court reasoned that it

directly contradicted Mr. Gibson's alibi. We weigh the high probative value of this

evidence against the prejudice to Mr. Gibson. ER 403; State v. Tharp, 96 Wn.2d 591,




                                            l3
No. 31077-9-111
State v. Gibson

594,637 P.2d 961 (1981). The purpose ofER 403 is to prohibit introducing evidence of

a defendant's past crime that may unfairly inflame the passions of the jurors. State v.

Goebel, 36 Wn.2d 367,218 P.2d 300 (1950). Here, no jury is involved because Mr.

Gibson requested a bench trial. Considering, his direct testimony detailing his long

criminal history, including forgeries, burglaries, rape, robberies, stealing cars, and

numerous bank robberies, it is difficult to follow Mr. Gibson's reasoning singling out this

one additional event or find any prejudice. Even if the trial court had erred in considering

the evidence under the ER 404(b) identity exception, the error would be harmless

because, as next discussed, the trial court properly admitted the evidence under a theory

of res gestae. State v. Jackson, 102 Wn.2d 689,695,689 P.2d 76 (1984).

       Res gestae permits a trial court to admit misconduct that would otherwise be

inadmissible when that misconduct is connected in time, place, circumstances, or means

employed and constitutes proof of the history of the crime charged. State v. Lillard, 112

Wn. App. 422, 432, 93 P.3d 969 (2004) (under res gestae, evidence of other crimes or

bad acts are admissible to complete the story of a crime or to provide the immediate

context for events close in both time and place to the charged crime). Mr. Gibson argues

the story ofthe Cole's Furniture robbery and murder was complete without the Benners'

testimony, but it tended to rebut his alibi. Under res gestae, evidence may be admissible

ifit is relevant to rebut a material assertion by the defendant. See State v. Thompson, 47

Wn. App. 1, 733 P.2d 584 (1987) (evidence admissible to contradict the defendant's




                                             14 

No. 31077-9-III
State v. Gibson

claim of self-defense); 5 TEGLAND, supra § 404.18, at 528. The Benners' testimony

identifying Mr. Gibson as the man who robbed their store that weekend rebuts his

claimed alibi. Given all, we conclude, under res gestae the trial court did not abuse its

discretion in admitting the Kid's Fair evidence. Thompson, 47 Wn. App. 1.

                                        C. DNA Evidence

       The issue is whether the trial court erred in admitting the late developed DNA

evidence in Mr. Gibson's trial. Citing Hutchinson, Mr. Gibson contends admitting the

DNA violated discovery rules. 135 Wn.2d at 883. But we reason the State did not

violate discovery rules. CrR 4.7(a)(l )(iv) provides, in part,

       [T]he prosecuting attorney shall disclose to the defendant the following
       material and information within the prosecuting attorney's possession or
       control no later than the omnibus hearing: ... any reports or statements of
       experts ... including results of physical or mental examinations and
       scientific tests, experiments, or comparisons.

       The State possessed the hat, DNA results from the hat, and knew Detective

Henderson, Mr. Walsh, and Mr. St. John handled the hat. The State timely disclosed this

information to Mr. Gibson. What the State did not disclose until after the omnibus

hearing, is the DNA test comparing the DNA on the hat with that of those three. But the

State did not possess the DNA results until June 7,2012, after the omnibus hearing.

Thus, it did not violate CrR 4. 7 (a)(l ).

       Under CrR 4.7(h)(2) a party that "discovers additional material or information

which is subject to disclosure ... shall promptly notify the other party." The State



                                              15 

No. 31077-9-II1
State v. Gibson

disclosed that it was seeking the DNA from the three on May 31, 2012, before it had the

results. Under CrR 4.7(h)(2), the State properly disclosed the evidence. Therefore,

Hutchinson does not help Mr. Gibson. 135 Wn.2d at 883. Whether the trial court

properly admitted the DNA comparison is an evidentiary ruling we review for an abuse

of discretion. State v. Ellis, 126 Wn.2d 498, 504,963 P.2d 843 (1998). A court abuses

its discretion when its decision is "manifestly unreasonable or based upon untenable

grounds or reasons." Stenson, 132 Wn.2d at 701.

       Continuance, not suppression, is one proper remedy when the State fails to give

notice prior to trial of its intent to introduce newly discovered evidence. State v. Hughes,

56 Wn. App. 172, 783 P.2d 99 (1989). "Violations of that nature are appropriately

remedied by continuing trial to give the nonviolating party time to interview a new

witness or prepare to address new evidence." Hutchinson, 135 Wn.2d at 881. The trial

court gave Mr. Gibson a 30-day continuance and leave to call and recall witnesses. The

trial court acted within its discretion. See, e.g., Linden, 89 Wn. App. at 947 (holding trial

court acted within its discretion when granting continuance to defense for prosecution's

late disclosure of information).

                                   D. Evidence Sufficiency

       When a defendant challenges the sufficiency of the evidence underlying his

conviction, a reviewing court views the evidence in the light most favorable to the State

and asks whether any rational trier of fact could find the essential elements of the crime




                                             16 

No. 31077-9-III
State v. Gibson

beyond a reasonable doubt. State v. Green, 94 Wn.2d 216,220-21,616 P.2d 628 (1980)

(citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,61 L. Ed. 2d 560 (1979)).

       To convict Mr. Gibson of first-degree murder, the State had to prove beyond a

reasonable doubt he committed an armed robbery, and in the course of the robbery he

caused the death of another. RCW 9A.32.030(1)(c). Mr. Gibson does not contest the

Idaho and Spokane robbery events, but he denies his involvement. We reason substantial

evidence supports the trial court's findings.

       At trial, the Benners testified a man wearing the disguise robbed their store, Kid's

Fair. The man displayed a small, silver handgun and demanded cash, credit cards, and

PIN numbers. Ms. Cole testified that three hours after Kid's Fair was robbed, a man

wearing the same disguise robbed her store. CP at 322. The man displayed a small,

silver handgun and demanded cash, credit cards, and PIN numbers. Ms. Bender testified

she saw a man outside of Cole's Furniture around 8:00 the night of the robbery wearing

the same disguise. From this evidence a rational trier of fact could conclude beyond a

reasonable doubt that the same man robbed both Kid's Fair and Cole's Furniture.

       DNA evidence on a piece of the fake beard recovered at Cole's Furniture matched

Mr. Gibson's DNA. Based on the analysis of the WSPCL, a one in 3.1 trillion chance

exists the DNA on the clump of fake beard does not belong to Mr. Gibson. In addition,

after the WSPCL excluded the DNA of the three other contributors, the lab concluded the

DNA on the hat matched Mr. Gibson by an exclusion factor of one in 10 million.




                                                17 

     No.31077-9-III 

     State v. Gibson 


            Given all, substantial evidence sufficiently supports Mr. Gibson's conviction.

                                               D. SAG

            Mr. Gibson disagrees with the trial court's findings of fact and claims the court

     misunderstood the evidence or fabricated certain findings. But credibility determinations

     are left to the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d

     60, 71, 794 P.2d 850 (1990). In sum, the court found the State's witnesses credible and
.1
I    not Mr. Gibson's witnesses.

I
I
            Next, Mr. Gibson believes the prosecutor lied to the court about the DNA on the

     hat, conspired with witnesses to evoke perjury, and that transcripts have been edited to
I
I
     remove incriminating remarks. He offers no evidence to support his speculation. The
I
I    court reporter's declaration contradicts his assertion that the transcripts have been edited.

     Nothing in the record suggests the prosecutor lied to the court.

            Affirmed.

            A majority of the panel has determined 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.


                                                   Brown, J.
     WE CONCUR:




                                                   Fearing, J.



                                                  18 

