       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )                                              coo

                                                   No. 73162-9-1                   dr\
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                     Respondent,           ]                                       c=

                                                   DIVISION ONE                     I

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MATTHEW RAYMOND WASHINGTON,;                       UNPUBLISHED OPINION
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                     Appellant.            ]       FILED: June 6, 2016             OS     2^",<->.




       Becker, J. — Appellant Matthew Raymond Washington was convicted of

residential burglary after a latent fingerprint left on a jewelry box was identified as

his. We adhere to our earlier holding that fingerprint evidence alone is sufficient

to support a conviction where the trier of fact could reasonably infer from the

circumstances that it could only have been impressed at the time the crime was

committed.


                                       FACTS


       On the morning of August 12, 2013, a married couple left their house in

Wedgwood and went to work. They left their second-story bedroom window

cracked open. That afternoon, a neighbor had just walked past their house when

he heard a window break. He ran back to their house and saw a man struggling

to get through the bedroom window, with his feet still hanging out the window.
No. 73162-9-1/2



         Minutes later, the neighbor saw a man leave the house through the front

door. As the man walked away, the neighbor saw him drop a small jewelry gift

box on the ground. Police were called but were unable to find a suspect near the

scene.



         A police officer did, however, lift a fingerprint from the jewelry gift box.

Seattle Police Department fingerprint examiners analyzed the fingerprint and

concluded that it matched Washington's.

         The State charged Washington with one count of residential burglary. The

jury found him guilty as charged. Washington appeals.

                                           ANALYSIS


         The issue on this appeal is whether fingerprint evidence was sufficient, by

itself, to support Washington's conviction for residential burglary. Washington

acknowledges our previous holding that "fingerprint evidence alone is sufficient to

support a conviction where the trier of fact could reasonably infer from the

circumstances that it could only have been impressed at the time the crime was

committed." State v. Lucca, 56 Wn. App. 597, 599, 784 P.2d 572 (1990). He

argues, however, that a 2009 report from the National Academy of Sciences and

various documented incidents of erroneous fingerprint identification "prove that

findings of guilt resting only on latent fingerprint analysis pose an unacceptable

risk of erroneous identification." Washington requests that we overrule Lucca

and hold that, absent corroborating evidence, fingerprint evidence alone is

insufficient to sustain a burglary conviction.
No. 73162-9-1/3


       The record is insufficient to even consider a categorical change to the

status of latent fingerprint evidence. The record contains no evidence of error

rates in latent fingerprint analysis. Nor does Washington cite a single case from

any jurisdiction holding that latent fingerprint evidence alone is insufficient to

support a conviction. And while the National Academy of Sciences report does

raise questions regarding the reliability of latent fingerprint evidence, courts have

found it insufficient to warrant changes to the status of such evidence. See

Johnston v. State, 27 So. 3d 11, 21 (Fla.) (National Academy of Sciences report

"lacks the specificity that would justify a conclusion that it provides a basis to find

the forensic evidence admitted at trial to be infirm or faulty"), cert, denied, 562

U.S. 964 (2010); United States v. Rose. 672 F. Supp. 2d 723, 726 (D. Md. 2009)

(despite National Academy of Sciences report, "fingerprint identification evidence

... is generally accepted in the relevant scientific community, has a very low

incidence of erroneous misidentifications, and is sufficiently reliable to be

admissible under Fed. R. Ev. 702)"; Commonwealth v. Gambora, 457 Mass. 715,

933 N.E.2d 50, 61 n.2 (2010) ("nothing in this opinion should be read to suggest

that the existence of the NAS report alone will require the conduct of. . . hearings

as to the general reliability of expert opinions concerning fingerprint

identifications"). A statement in the report itself cautions against giving it too

much weight:

               The committee decided early in its work that it would not be
       feasible to develop a detailed evaluation of each discipline in terms
       of its scientific underpinning, level of development, and ability to
       provide evidence to address the major types of questions raised in
       criminal prosecutions and civil litigation.
No. 73162-9-1/4


Comm. on Identifying the Needs of the Forensic Sci. Cmty. , Nat'l Research

Council, Strengthening Forensic Science in the United States: A Path

Forward 7 (2009), https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (last

accessed June 1, 2016). In addition, the report "does not appear to question the

underlying theory which grounds fingerprint identification evidence; as the report

states, there is scientific evidence supporting the theory that fingerprints are

unique to each person and do not change over a person's life." Gambora, 933

N.E.2dat58.


          We have been informed about this same National Academy of Sciences

report and documented incidents of fingerprint misidentification before on

appeals regarding whether a Frye1 hearing is required to admit fingerprint

identification evidence. See State v. Piqott, 181 Wn. App. 247, 249-50, 325 P.3d

247 (2014); State v. Lizarraqa, 191 Wn. App. 530, 565-67, 364 P.3d 810 (2015),

review denied, No. 92624-7 (Wash. Apr. 27, 2016). We held that "the reliability

of fingerprint identification has been tested in our adversarial system for over a

century and routinely subjected to peer review," and has long been accepted by

both the scientific community and Washington courts. Piqott, 181 Wn. App. at

251. See also Lizarraqa, 191 Wn. App. at 565-67 (adhering to Piqott).

          In contrast, Washington cases prohibiting convictions based solely on

confessions and dog tracking evidence are based on a historical distrust of such

evidence. See State v. Dow, 168 Wn.2d 243, 249, 227 P.3d 1278 (2010) (corpus


       1 Frve v. United States, 54 App. D.C. 46, 293 F. 1013(1923). Under Frye,
novel scientific evidence is admissible if it is based on a theory or principle which
is generally accepted in the relevant scientific community. Piqott, 181 Wn. App.
at 249.
No. 73162-9-1/5


delicti doctrine is grounded in "judicial mistrust of confessions"); State v. Loucks,

98 Wn.2d 563, 567, 656 P.2d 480 (1983) (courts regard the probative value of

dog tracking evidence "with some suspicion"). Corpus delicti, "body of the

crime," must be proved by evidence sufficient to support the inference that there

has been a criminal act. State v. Brockob, 159 Wn.2d 311, 327, 150 P.3d 59

(2006). Here, there is no doubt that a burglary took place. Also, while a tracking

dog cannot be questioned about his investigations or conclusions, a fingerprint

identification analyst can. In this case, both the fingerprint analyst and the

supervisor who reviewed her work testified at length about their methods of

investigation and the reliability of their conclusions. For these reasons, appellant

Washington's comparisons to confessions and dog tracking evidence are

unpersuasive.

       Proof of possession of stolen property, unless accompanied by other

evidence of guilt, is not prima facie evidence of burglary. See, e.g., State v.

Mace, 97 Wn.2d 840, 650 P.2d 217 (1982). This is because possession of

stolen goods alone does not prove that the possessor committed the burglary—

that is, entered or remained unlawfully in a building with the intent to commit a

crime therein. See, e.g., RCW 9A.52.025 (residential burglary statute).

Washington's comparison to possession of stolen property is inapposite to this

case, where an eyewitness saw the burglar break into the house, exit the house,

and drop the jewelry box.

       A defendant confronted with fingerprint evidence also has the right to

challenge that evidence by hiring his own expert. See, e.g., State v. Boyd, 160
No. 73162-9-1/6



Wn.2d 424, 158 P.3d 54 (2007) (Sixth Amendment right to effective assistance of

counsel guarantees expert assistance if necessary to an adequate defense).

Washington in fact exercised this right, although his expert did not testify at trial.

Washington argues that the ability to hire an expert does not resolve the inherent

unreliability of fingerprint evidence, but, as discussed above, he has not proven

any such unreliability.

       For these reasons, we adhere to our decision in Lucca. In this case, the

burglary victims, the homeowners, testified that they did not know Washington,

did not give him permission to enter their home or take their jewelry or jewelry

boxes, and could not think of any reason that he would have left a fingerprint on

any of their property. The neighbor who saw the man drop the jewelry box

testified that he did not see anyone else touch the jewelry box from the time it

was dropped until the police arrived. The jury could reasonably infer from the

circumstances that Washington's fingerprint could only have been impressed on

the jewelry box at the time the burglary was committed. See Lucca, 56 Wn. App.

at 599. An eyewitness saw the burglary take place, and fingerprint evidence

identified the burglar as Washington. Washington's conviction is supported by

substantial evidence.


       Washington asks that we deny any request by the State for costs to be

imposed on him. The State has not yet submitted a cost bill, so Washington's

request is premature. We will not make a decision on costs at this time.
No. 73162-9-1/7



      Affirmed.

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WE CONCUR:                        cj


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