                                                                                                         SFILEFJ


                                                                                                 30iJRT OF APPEifV -S
                                                                                                       IVIS10111111

                                                                                                2013 DEC 31    AM 9= 17

                                                                                                STATE OF WASHINGTON




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                          DIVISION II

STATE OF WASHINGTON,                                                                       No. 43559 - -II
                                                                                                     4


                                             Respondent,


          u



AARON LLOYD RAYGOR,                                                               UNPUBLISHED OPINION




          HUNT, J. —        Aaron Lloyd Raygor appeals his exceptional sentence and his jury trial

convictions      for   residential   burglary        and    second    degree   identity     theft.    He argues that his trial


counsel provided ineffective assistance in failing to object to admitting into evidence a deputy
                                         1
sheriff' s "   opinion     on   guilt"        testimony that occurred when the deputy identified Raygor in

surveillance      photographs.       In        a   statement      of additional   grounds       for            SAG), Raygor


asserts   that ( 1)    the trial court       violated    his " speedy" trial   rights, (   2) the evidence is insufficient to


                                                         3) the                            in   prosecutorial misconduct, ( 4)
prove   the    residential   burglary        charge, (            prosecutor engaged



the trial   court miscalculated          his   offender scores, (     5) the trial court relied on improper evidence in




1 Br. of Appellant at 7 ( capitalization altered).

2
    RAP 10. 10.
No. 43559 -4 -II



denying       his   Drug    Offender    Sentencing     Alternative (      DOSA)     request and in imposing the

exceptional sentence, and ( 6) his exceptional sentence was improper because the facts do not

support the aggravator. We affirm.


                                                        FACTS


                                       1. BURGLARIES AND IDENTITY THEFT


                On   May    2, 2011,    someone broke into Julia and Gary Mullan' s home through the

attached       garage,     ransacked    the    home,   and   took      several   items.   Investigators    found   no


fingerprints, but on several items they found patterns consistent with those items having been

touched by someone wearing gloves. Around noon the next day, Aaron Lloyd Raygor attempted

to    buy    merchandise at a    local Target     store with     Gary   Mullan'   s credit card.   The store' s video


surveillance system recorded this attempted transaction.



             At about 4: 00 PM on May 3, Hayward L. Brandon was home when he heard an alarm

coming from Sandy Bicheray' s house across the street, looked out his upstairs window, observed

a man run from the home' s front door toward the driver' s side of a white Cadillac parked in the


driveway, and called 911 with a description of the vehicle and its direction of travel as it "sped"
         4
away.         1 Verbatim Report        of   Proceedings ( VRP)    at    136.   Brandon flagged down the arriving

deputies, gave them a description of the vehicle, and described the man he had seen leaving the




3
     RCW 9. 94A. 660( 1).


4 Brandon did not, however, see what side of the car the man entered, and he was unable to see
the car' s license plate number as it drove away.




                                                             2
No. 43559 -4 -II



house. When home owner Bicheray returned home, she discovered that an engraved jewelry box

and its contents were missing.

          Soon after Brandon' s description of the white Cadillac was broadcast, deputies stopped a

white   Cadillac in the       area.       Raygor was driving the Cadillac, David Turner was in the front

passenger seat, and a woman was                in the back    seat.       There was loose jewelry on the passenger' s

seat and a screw       driver " tucked beside the driver'              s seat."        1 VRP     at   39.   Raygor and the other


man were wearing expensive watches, tennis bracelets, and several rings, which the deputies
                                                                             s
photographed, removed            from the     men, and packaged.




          Deputies brought Brandon to the site to see if he could identify the man he had seen

running from        Bicheray'   s    house.    Because Brandon had not had a clear view of the man' s face,

Brandon identified Raygor only                by   his clothing,   a "   black, dark         color, polo    type   shirt."    1 VRP at


138.


          The deputies impounded the Cadillac                 and obtained search warrants                    for it.        During the

searches,     the   deputies found ( 1)       Bicheray' s jewelry box                and several pieces of         her   jewelry; ( 2)

several   rubber     gloves; (      3)   the Mullans'    daughter'       s       camera; (   4) a nylon bag containing Gary

Mullan'   s   tools; ( 5)   a piece of paper with Gary Mullan' s name, birth date, and social security




5 One of the bracelets was later identified by. another burglary victim, Don Olmstead, as having
been stolen from his home.




                                                                   3
No. 43559 -4 -II



                                                   6; (
number written on    it; (6) two " lock   punches "       7) several items taken from the Olmstead home;


and ( 8) several other items belonging to Turner and to the woman who had been in the Cadillac.7
         Pierce County Sheriff' s Deputy Anthony Filing was investigating the Bicheray burglary.

When Filing learned about the credit card incident at Target, he obtained copies of the

surveillance video and still photos from the video related to the Target incident and identified

Raygor in those images.


                                               II. PROCEDURE


         The State charged Raygor with the residential burglary of Bicheray' s home and Gary

Mullan' s identity theft.8
                                                   A. Trial


         The State presented testimony from Pierce County Deputy Sheriffs Filing, William

Ruder, and William Donald Foster; forensic investigator Robert Scott Creek; Brandon; Bicheray;

Gary Mullan; Julia Mullan; and Dillon Tiger, an asset protection manager from Target.9 These
witnesses testified as described above.


         Explaining how he connected the identity theft to the white Cadillac, Filing also testified:

         I obtained the photos from Target of the suspect attempting to use a stolen credit
         card from another burglary.   I recognized the suspect entering the store and


6
    1 VRP at 198.

7
    The deputies did not find anything belonging to Raygor.
8
   The State also charged Raygor with the Olmstead residential burglary and another attempted
residential burglary. The jury found Raygor not guilty of the Olmstead burglary charge, and the
trial court dismissed the attempted residential burglary charge during trial.

9 The State also presented evidence related to other burglaries not relevant to this appeal.



                                                          M
No. 43559 -4 -II



            leaving the store and attempting to use the card as Mr. Raygor. Furthermore, I
            saw Target was able to obtain surveillance of Mr. Raygor walking out into the
            parking lot and getting into the same white Cadillac I served the search warrant
            on.




1 VRP       at   103 (   emphasis added).       Raygor did not object.


            Brandon also denied having told the deputies that the man he had seen running from

Bicheray' s house was a light -
                              skinned black male; he asserted that he had told the deputies that

the   man- was a          light- skinned      male   wearing   a   black        type
                                                                           polo -      shirt.    The parties later entered a


stipulation




             t] hat May 3, 2011 at approximately 1608 hours, Pierce County Sheriff' s
                      on

            Deputy William Foster recorded in his incident report that Mr. Hayward Lee
            Brandon told him that, " He then saw a light skin black male run form the house
            and jumped to the car."


Clerk' s         Papers     at   36.     Brandon       identified       the   man   depicted      in    a photograph   taken


contemporaneously with his field identification as the man he had seen running from Bicheray' s

house.       Exhibit 42 was a photograph of Turner, who had been in the Cadillac' s front passenger


seat when the deputies stopped the vehicle on May 3.

            Gary Mullan testified that ( 1) he believed his stolen credit card had been in an old wallet

that he had left on a work bench in his garage, and ( 2) he had not been aware that the credit card


was missing until he was notified on May 3 that someone had attempted to use it.

            Target asset protection manager Dillon Tiger testified about Raygor' s attempt to use Gary

Mullan' s credit card. Tiger testified that at approximately noon on May 3, he noticed a man in a

red   jacket in the        store.    Because the coat seemed unnecessary for the weather, Tiger watched the

man       from the security         office.   The man eventually attempted to purchase " some food items and.

      a   Target   gift card" with a credit card, which was                denied. 1 VRP    at   221.   Tiger approached the




                                                                    5
No. 43559 -4 -II



man, took the credit card, looked at the name on the card, and returned the card to the man. The

man then went outside to a white car, contacted another man, returned with Gary Mullan' s credit

card, and attempted        to    complete    the transaction.        After that transaction was also denied, the man


left the   store with   the     card.    In court, Tiger identified Raygor as the man who had attempted to


use Gary Mullan' s credit card.

           Security cameras recorded Raygor' s attempted Target transactions and his activities in

the parking lot. The jury viewed the security tapes and several still -shots showing the man in the

red j acket.

           Turner    was   the    sole   defense   witness.      He testified that ( 1)      he was, responsible for the


Bicheray burglary; ( 2) he          owned    the   white   Cadillac; ( 3)   he had asked Raygor to drive on May 3

because he ( Turner) did not have a license and did not want to be pulled over with stolen


property in his       car; (   4) he     could not remember          when   he had    picked   up Raygor that     day; (   5)


although he asked Raygor to drive on May 3, Raygor did not know about his ( Turner' s) plan to

burglarize     Bicheray' s home; ( 6) he was unsure whether Raygor could have heard the Bicheray' s

burglar     alarm    going      off, and (   7) when the deputies later pulled them over, Raygor looked


surprised      and   had   stopped,       despite Turner'    s   encouraging him to          keep driving.     Turner also


testified that   he did    not " recall ...        going to Target       with [   Raygor]"   on   May   3.   2 VRP at 260.


When the State showed him the Target security tapes and photographs, Turner admitted that he

was   the driver     shown      in those images.      But he denied knowing who the man in the red coat was

because he could not see the man' s face.


           The jury found Raygor guilty of the residential burglary of Bicheray' s home and second

degree identity theft.



                                                                 0
No. 43559 -4 -II



                                                    B.   Sentencing

         Raygor' s criminal history included 12 prior felony convictions, one of which was a 1996

first degree   burglary    juvenile     adjudication.    Raygor requested a prison -
                                                                                   based DOSA sentence.


The State argued against a DOSA sentence and asked for an exceptional 108 -month sentence for

the residential burglary based on Raygor' s high offender score and multiple current
                o
convictions.)




         The    trial   court       denied Raygor' s     DOSA    request,   followed the State' s sentencing

recommendation, and imposed a 108 -month exceptional sentence for the residential burglary

conviction and a concurrent 54 -month standard range sentence for the identity theft conviction.

Raygor appeals.


                                                     ANALYSIS


                                       I. EFFECTIVE ASSISTANCE OF COUNSEL


         Raygor argues that his trial counsel provided ineffective assistance in failing to object to

Filing' s testimony identifying Raygor in the Target surveillance tape and still photographs.

Raygor    contends      that ( 1)    this testimony was improper opinion testimony because it was the

jury' s responsibility, not Filing' s, to determine whether he was the person in the surveillance

evidence;   and (   2) this     error   was   prejudicial.   Even assuming, but not deciding, that defense

counsel should have objected to this testimony, we hold Raygor fails to establish prejudice and,

thus, his ineffective assistance argument fails.

                                                A. Standard of Review



io
     The State also mentioned Raygor' s 1996 first degree burglary juvenile adjudication and other
burglaries that the State did not charge. The trial court sustained Raygor' s objection.




                                                             7
No. 43559 -4 -II



             To    establish   ineffective        assistance      of   counsel,     Raygor    must   show   both that ( 1)    his


counsel' s performance was deficient, and ( 2) this deficient performance prejudiced him. State v.

Thomas, 109 Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987) (                              citing Strickland v. Washington, 466

U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)).                            Prejudice occurs when, but for the


deficient performance, there is a reasonable probability that the outcome would have differed.

State   v.   Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004).                            We begin our analysis with a


strong presumption that counsel was effective. State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260

 2011) ( citing State          v.   Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009)); State v. McFarland,


127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).                          Moreover, "[     o] nly in egregious circumstances, on

testimony central to the State' s case, will the failure to object constitute incompetence of counsel

justifying        reversal."    State      v.   Madison, 53 Wn.            App.   754, 763, 770 P. 2d 662 ( 1989),        review



denied, 113 Wn.2d 1002 ( 1989).                   We address only the prejudice prong of the test here.

                                                              B. No Prejudice


              Generally, no witness may offer testimony in the form of an opinion regarding the guilt

or veracity of the defendant; such testimony is unfairly prejudicial to the defendant ` because it

 invad[ es] the         exclusive province of        the [ jury]."         State v. Demery, 144 Wn.2d 753, 759, 30 P.3d
                                                         11
1278 ( 2001) (          alterations   in    original).         But here, Filing was not the only witness to identify

Raygor       as   the   person who      had      attempted      to   use   Gary   Mullan' s   credit card at   Target.   Target' s


loss prevention officer, Tiger, identified Raygor in court based on his personal observations of


ii
              of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P. 2d 658 ( 1993), review denied,
     Quoting City
123 Wn.2d 1011 ( 1994); State v. Black, 109 Wn.2d 336, 348, 745 P. 2d 12 ( 1987). See also State
v.   George, 150 Wn.           App.   110, 118, 206 P. 3d 697,             review   denied, 166 Wn.2d 1037 ( 2009).
No. 43559 -4 -II



Raygor while he had been in the store; Tiger also verified that this same person was the person

                                                     12
depicted in the         surveillance    evidence.           Thus, Filing' s testimony identifying Raygor in the
                                                                                13
surveillance     tape   and photographs was         merely     cumulative.




          Moreover, although the surveillance video and some of the photographs did not clearly

show the Target customer' s face, at least two of the still photographs were clear enough to allow


the jury ( 1) to evaluate for themselves whether the person in the photographs was in fact Raygor

and ( 2) to disagree with Filing' s conclusion that Raygor was the individual in the surveillance

video or photographs.           Accordingly, we hold that Raygor has not shown that the outcome of the

trial would have differed had Filing not identified Raygor in the videos or photographs. Because

Raygor fails to establish prejudice, his ineffective assistance of counsel argument fails.

                                                      II. SAG ISSUES


          In his SAG, Raygor          asserts   that ( 1) the trial    court violated      his " speedy trial"   rights, ( 2)   the


evidence    is insufficient to        prove   the   residential      burglary   charge, (    3) the prosecutor engaged in


prosecutorial misconduct, ( 4)          the trial    court miscalculated           his   offender scores, (   5) the trial court




12
     Raygor does        not   challenge     Tiger' s identification testimony.
                                                                Furthermore, a lay witness' s
opinion testimony about the identity of a person in a surveillance photograph is appropriate
 when     the    witness      has had   sufficient        contacts    with   the     person,"   which was the case here.

George, 150 Wn. App. at 118 ( citing United States v. LaPierre, 998 F. 2d 1460, 1465 ( 9th Cir.
1993)).

13
     Filing' s identifying Raygor - id not amount to opinion of guilt testimony. A witness may give
                                  d
 opinion"       testimony         identity of a person in a surveillance photograph: Courts have
                              about   the

analyzed this type of identification testimony under ER 701, which addresses admissible opinion
testimony by lay witnesses ( rather than characterizing such testimony as opinion of guilt). See
George, 150 Wn. App. at 118; State v. Hardy, 76 Wn. App. 188, 190 -91, 884 P. 2d 8 ( 1994),
affirmed sub nom. State v. Clark, 129 Wn.2d 211, 916 P. 2d 384 ( 1996).




                                                                 1
No. 43559 -4 -I1




relied on improper evidence in denying his DOSA request and in imposing the exceptional

sentence, and ( 6) his exceptional sentence was improper because the facts do not support the


aggravator.



                                                                         14
                                                A. Time for Trial


          Raygor   asserts    that his "   speedy trial" rights were violated because he objected to every

trial   continuance;    but he fails to    identify   any   specific continuance    that   was   improper. Although


an appellant' s SAG need not contain references to the record or to the law, we are not obligated


to search the record in support of SAG claims; thus, we will not address an issue if it " does not

inform the      court    of   the   nature    and     occurrence    of   the   alleged   errors."    RAP        10. 10( c).


Furthermore, there is no information in the record related to any continuance; and on direct

appeal we cannot consider matters outside               the   record.   McFarland, 127 Wn.2d        at   335.   Because


Raygor has not adequately identified the nature and occurrence of this alleged trial error, we

decline to consider it further.


                                                      B. Evidence


          Citing Turner' s testimony that Raygor did not know about the Bicheray burglary, Raygor

appears to assert that there was insufficient evidence to support the jury' s finding him guilty of

this residential burglary as an accomplice because the evidence was insufficient to prove his

knowledge of Turner' s plan and activities. We disagree.


          When reviewing        a challenge     to the sufficiency of the evidence, we ask whether, " after



viewing the evidence in the light most favorable to the State, any rational trier of fact could have


14 We treat Raygor' s " speedy trial" claims as time for trial claims under CrR 3. 3.



                                                              10
No. 43559 -4 -II



found the      essential     elements     of   the   crime   beyond    a reasonable     doubt."   State v. Hosier, 157


Wn.2d 1, 8, 133 P. 3d 936 ( 2006). " All reasonable inferences must be drawn in favor of the State


and    interpreted    most    strongly    against     the defendant."     Hosier, 157 Wn.2d       at   8.    Circumstantial


evidence and        direct   evidence are      equally     reliable.   State v. Moles, 130 Wn. App. 461, 465, 123

P. 3d 132,     review   denied, 157 Wn.2d 1019 ( 2005).                We defer to the jury on issues of conflicting

testimony, credibility        of witnesses,          and persuasiveness of      the   evidence.   State v. Thomas, 150


Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).


          The   record     includes   ample evidence of          Raygor'   s   knowledge.    Although Turner testified


that Raygor did not know about his ( Turner' s) plans burglarize the Bicheray home, the jury

obviously rejected this testimony and instead relied on other testimony showing Raygor' s

knowledge to reach its verdict. 15 Taken in the light most favorable to the State, the evidence was

sufficient to allow a jury to find that Raygor knew about the burglary and that he assisted Turner

by    acting   as   the driver:    Raygor was waiting in the car while Turner burglarized the Bicheray

house and willingly drove away with Turner in the car after seeing Turner run from the house

carrying Bicheray' s jewelry box while the house' s alarm was sounding loudly enough that a

neighbor across the street heard it.


          As to Raygor' s role as Turner' s accomplice, the evidence was also sufficient to show that


 1)    Raygor acted in a way that assisted Turner; and ( 2) Raygor was not merely present at the

scene with      knowledge that Turner                was   going to    commit a crime —Raygor          "   sped"   away with




15
      Again,   we   defer to the   jury   on   credibility issues. Thomas, 150 Wn.2d at 874 -75.




                                                                 11
No. 43559 -4 -II



Turner in the       car,   despite the many indications that Turner had just burglarized the home. 1 VRP


at 136. Accordingly, this insufficiency of evidence issue also lacks merit.

                                                 C. Prosecutorial Misconduct


            Raygor further asserts that the prosecutor presented a " twisted a web of lies that he made

seem    true in     his final   jury   speech,"     which allowed the jury to find him guilty despite there being

no   evidence       supporting      accomplice        liability.    SAG ( Additional Ground 4)              Arguably, this is a

prosecutorial misconduct claim. But Raygor does not point to any specific evidence or argument

to   support      his    assertion.      His general allegation does adequately identify the nature and

occurrence      of      this   alleged   error   so    that   we   can review       it.   RAP 10. 10( c).     Accordingly, we .

decline to consider this prosecutorial misconduct issue further.


                                                              D. Sentencing

            Raygor also challenges his offender scores that the trial court used, asserting that they

should      have been lower.           His offender scores were 13 points for the second degree identity theft

and    14    points     for the     residential     burglary.       He had 12         prior   felony   offenses (   including the

juvenile first degree            burglary      adjudication)        and   1   other   current   offense.    Because Raygor' s


second      degree      identity   theft is         violent class
                                              a non -                     C   felony, 16 each of his prior adult felonies and

his other current offense counted as 1 point, and his juvenile first degree burglary adjudication

counted as      1    point     because it     was a violent        felony. 17 Thus, his 13 -point offender score for the

second       degree      identity    theft    was     correct.      RCW 9. 94A.525( 7).           And because under RCW



16
     RCW 9. 35. 020( 3); 9. 94A. 030( 33),( 54).

17
     RCW 9. 94A.030( 54)( a)( 1).




                                                                     12
No. 43559 -4 -II



9. 94A.525( 16) his prior first degree burglary adjudication counted as 2 points for the residential

burglary offender score, his 14 -pont offender score for the residential burglary was also correct.

          Raygor next asserts that the trial court improperly relied on his more -than -10- years -old

juvenile first degree burglary adjudication as grounds for imposing the exceptional sentence and

denying his     DOSA         request,    apparently based        on   ER 609( b).    SAG ( Issue 1).    But ER 609( b) is an


evidentiary rule that addresses admission of prior convictions for impeachment purposes during

the evidentiary phase of trial; it does not govern what convictions or adjudications a trial court

may consider at sentencing. Instead, RCW 9. 94A.525( 2)( g) provides that both adult and juvenile

prior offenses are part of a defendant' s offender score and criminal history for sentencing

purposes. Accordingly, this claim lacks merit.

          Raygor also appears to assert that the facts do not support the exceptional sentence under


RCW 9. 94A.535( 2)(           c),    which allows the court to impose an exceptional sentence if it finds that


  t] he defendant has committed multiple current offenses and the defendant' s high offender score

results   in   some of      the     current offenses     going   unpunished."        Raygor   contends, "   I have one burg.

in my juvenile         past and        none   as   an adult.     Where it the       multiple ?"   SAG ( Issue 3).     Raygor


misconstrues         this     statute,     which      merely      requires "     multiple     current    offenses."    RCW


9. 94A. 535( 2)(     c) (   emphasis added).         Because Raygor was convicted of two current offenses—


burglary       and   identity        theft— he     was   convicted         of " multiple"   current    offenses.   Thus, this




                                                                      13
No. 43559 -4 -II



assertion also lacks merit.


        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                          J.




                                                  14
