                                                                        FILED
                                                                   SEPTEMBER 28, 2017
                                                                 In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




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

STATE OF WASHINGTON,                            )
                                                )       No. 34523-8-111
                     Appellant,                 )
                                                )
       v.                                       )
                                                )
STEVEN PAUL WHITE,                              )       UNPUBLISHED OPINION
                                                )
                     Respondent.                )

       KORSMO,    J. -The State appeals from an order granting a new trial to Steven

White following a jury's determination that he had committed second degree robbery.

Discerning no abuse of discretion, we affirm.

                                          FACTS

       The State charged White with one count of second degree robbery of a Subway

restaurant on the near north side of Spokane on December 18, 2015. The matter

proceeded to jury trial before the Honorable Maryann Moreno of the Spokane County

Superior Court.

       The issue at trial was the identity of the robber. White had been apprehended by

police at the end of an alley five blocks directly west of the Subway store a few minutes

after the robbery. The store's parking lot is at the east end of the alley, and Mr. White
No. 34523-8-III
State v. White


was arrested at the alley's western terminus at Maple Street. Scattered snow littered the

alley and parking lot.

       Shoe prints close to the east side of the alley matched the shoes Mr. White wore

and he was arrested possessing only a few dollars more than was taken from the till; a roll

of pennies was also in his possession. The shirt worn by the robber was eventually found

in a garbage receptacle along the alley. When driven to the scene of the arrest, the

employee who had been robbed did not think White was the robber.

       Three different videos captured the interior scenes of the robbery from different

angles. A fourth video showed the parking lot and briefly depicts the robber walking in

to the building and walking out of it toward the general direction of the alley. The. four

videos were all copied to a DVD admitted as exhibit P-22. Only the three interior videos

were admitted at trial. The State lacked a foundation witness to offer the exterior video

and it was withdrawn after defense objection. The three interior videos were played

during trial. The existence of the fourth video was revealed during trial when the defense

questioned an officer about not having viewed it.

       In closing, the defense challenged the adequacy of the police investigation and the

circumstantial case of identity. Defense counsel expressly told the jury that the exterior

video was "certainly a missing piece of evidence, right? It's a huge piece of evidence:

Where did these people go?" Report of Proceedings (RP) at 356. Exhibit P-22 was
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No. 34523-8-III
State v. White


transmitted to the jury along with the other exhibits admitted into evidence. The

prosecutor belatedly remembered that the fourth track was still on the exhibit and the

court retrieved P-22 from the jury. It was uncertain whether the jury had viewed the

exhibit. However, the bailiff had demonstrated for the jurors how to use the equipment

provided to view the DVD. 1

       The parties discussed a remedy for the situation and the court ultimately instructed

the jurors to disregard track four if they had viewed it. A corrected exhibit was provided

for the jury to view. RP at 379-380. The jury ultimately returned a verdict of "guilty" on

the robbery charge. The defense moved for a new trial.

       The trial court struggled with the matter, noting that the jury was aware of the

existence of the fourth video and, thus, it was not truly extrinsic evidence. However, "it

really is in sharp contrast with what the defendant was arguing." RP at 401. Recognizing

that she had been flipping back and forth on the matter, Judge Moreno noted that Mr.

White was facing a significant amount of jail time and that the rule of lenity suggested

that a new trial was in order. She therefore granted the motion.

      The State timely appealed that decision to this court. A panel heard oral argument.




       1
        Anyone putting the DVD in a video player will see the four tracks identified and
need to click on the track to view it. The fourth track was entitled, "Outside-Back Door."
Ex. P-22.


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No. 34523-8-111
State v. White


                                        ANALYSIS

       The sole issue presented by this appeal is whether the trial court erred in granting

the new trial. We conclude the court did not abuse its considerable discretion.

       A trial court's decision to grant a new trial is reviewed for abuse of discretion.

State v. Marks, 71 Wn.2d 295, 302, 427 P.2d 1008 (1967). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971). "The question is not whether this court would

have decided otherwise in the first instance, but whether the trial judge was justified in

reaching his conclusion." State v. Taylor, 60 Wn.2d 32, 42, 371 P.2d 617 (1962). It long

has been the rule that a decision granting a new trial is accorded a higher level of

deference than a decision denying a new trial. State v. Hawkins, 181 Wn.2d 170, 179-180,

332 P.3d 408 (2014) (citing State v. Brent, 30 Wn.2d 286, 191 P.2d 682 (1948)).

       The State makes several arguments in support of its appeal, beginning with the

fact that the trial court never determined that any jurors actually saw the fourth video.

Although we agree that the trial court should have determined after trial 2 whether any          I
                                                                                                 I   !

       2
         The trial court understandably did not want to raise this issue during trial, but any
concerns about intruding on jury deliberations did not exist once the verdict was returned.      I
Affidavits or testimony from jurors, and perhaps the bailiff, might well have settled the        I
factual question of whether anyone viewed the video. That would have been a proper
subject of inquiry, although the effect of the video on the jurors would have inhered in
the verdict and could not be considered. E.g., Gardner v. Malone, 60 Wn.2d 836, 376
P .2d 651 (1962).                                                                                I
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No. 34523-8-III
State v. White


jurors actually viewed the excluded track, we do not agree that is the correct focus for

this appeal. The fact that a video existed was known to the jurors from trial testimony.

The fact that it was not "missing evidence" (as argued by defense counsel) was not

known. 3 Once exhibit P-22 was placed in the video machine, the presence in the

courtroom of that "huge piece" of "missing" evidence was known to the jury from the

track listings. Whether or not any jurors actually viewed the video, they knew that

defense counsel's argument that it was "missing" was erroneous and his credibility was

undercut.

       For similar reasons, the prosecutor's argument that the jury knew of the video and,

hence, the disclosure on P-22 could not be extrinsic evidence, fails. Even if knowledge

of the existence of the video was not extrinsic evidence, the presence of the video in the

courtroom was extrinsic.                                                                     I
       The State also complains that the trial court erroneously relied on the "rule of      I
lenity" in reaching its decision. That doctrine requires that ambiguous statutes be
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construed in favor of the criminal defendant. E.g., State v. McGee, 122 Wn.2d 783, 787,      l
                                                                                             r
                                                                                             ;
864 P.2d 912 (1993). We agree that the doctrine had no play here since the trial court was

not construing a statute, but we do not agree that the trial court misapplied the concept.
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       3
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        With the benefit of hindsight, discussion and argument concerning the video
probably should have been prohibited once the evidence was suppressed.                       I!
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No. 34523-8-111
State v. White


We believe the trial court was simply recognizing that this was a close call and was

expressing the view that a new trial was in order so that the defendant would not suffer

from an ambiguous situation. It is not unlike the old baseball axiom that "the tie goes to

the runner." There is no such rule in the baseball rulebook, but there is a requirement that

the defense clearly put the runner out at first base by the ball beating him to the bag. See

MAJOR LEAGUE BASEBALL, OFFICIAL BASEBALL RULES r. 5.09(a)(10), at 42 (2017 ed.). 4

       Finally, the State contends that Mr. White has not established that he was

prejudiced by the video under these facts. Although there is little of evidentiary value in

the video, it does support the prosecution's view that the robber headed toward the alley

upon leaving the restaurant. It also seriously undercut the defense theory that the police

failed to connect the alley to the flight of the robber. If any jurors saw the video, it was

prejudicial to the defense theory.

       For all of these reasons, we believe the trial court had a tenable basis for granting

the new trial. The presence of the "missing" video was more detrimental to the defense

than the contents of the video were. Defense counsel's credibility was undercut, as was




       4
       http://mlb.mlb.com/documcnts/0/4/0/224919040/2017 Official Baseball Rules
 dbt69t59.pdf [https://perma.cc/6YXD-BCT8].



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State v. White


the defense theory of inadequate investigation. Accordingly, the trial court did not abuse

its considerable discretion by ordering the new trial.

       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.




WE CONCUR:




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