IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, ) No. 80601-7-I ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION ABDIJABAR AHMED MOHAMED, ) ) Appellant. )
BOWMAN, J. — A jury convicted Abdijabar Ahmed Mohamed of theft of a
motor vehicle and second degree identity theft after he appeared on surveillance
video taken from inside a stolen minivan. Mohamed appeals the trial court’s
admission of his driver’s license and jail booking photographs as evidence to
compare to the surveillance video. Because the trial court did not abuse its
discretion in determining the relevance of the photographs outweighed any
undue prejudice, we affirm the convictions, but remand to strike the community
custody supervision fees from Mohamed’s judgment and sentence.
FACTS
Mohammed Salman parked his minivan at a gym and went inside to
exercise. He left his wallet with credit cards, recent clothing purchases, and
other personal items inside the minivan. When Salman left the gym two hours
later, his minivan was missing. Salman called 911 to report the theft.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80601-7-I/2
Soon after, Salman received alerts that someone tried using his credit
card at a nearby Subway restaurant, gas station, and Bartell Drugs store. A
friend drove Salman to those locations to search for the missing minivan.
Salman found his van abandoned outside the Subway restaurant. His wallet, a
large amount of cash, and various personal items were missing.
Salman called 911 to tell the police that he found his stolen minivan. A
police officer responded and began gathering information. The officer looked for
latent fingerprints but found none. The minivan appeared undamaged from the
theft.
Salman told the officer that the minivan had a two-way video camera
attached to the rear-view mirror that records the “front of the car and the inside of
the car at the same time.” Salman played the video on the camera and obtained
still images of the person driving his van. The officer used his phone to take
pictures of those images.
Salman gave a detective the minivan video downloaded to a thumb drive.
The video consists of three files of about 10 minutes each. Partway through the
first file, the video shows a man walk past the front of the minivan, stop, and turn
back toward the van. The man opens the driver’s door, gets into the minivan,
and immediately begins driving. Most of the remaining video shows the man in
the van driving. While the video does not focus on the driver’s seat, the man’s
face is often visible coming in and out of the frame. The man looks directly into
the camera several times. At the end of the third video, the man pulls into a
Subway parking lot, parks, and rummages around in the van, finding a new pair
2 No. 80601-7-I/3
of shoes. He then leaves the minivan, returns with another man about three
minutes later, and continues to rummage through the contents of the van. The
video ends abruptly as the man removes the charger from the camera.
The detective took still photographs of the driver’s face from the minivan
video and sent one to nearby law enforcement agencies for help in identifying the
suspect. Several agencies responded, identifying the person driving the minivan
as “Abdijabar A. Mohamed.”
The detective tried to find surveillance videos from the businesses where
Mohamed used Salman’s credit cards. Only Bartell Drugs could produce images
of Mohamed’s purchase. Besides a surveillance video, Bartell Drugs provided
transaction details showing the purchase Mohamed made with Salman’s credit
card.
The State charged Mohamed with one count of theft of a motor vehicle
and one count of second degree identity theft. During the jury trial, the State
moved to admit Mohamed’s driver’s license photograph and his jail booking
photograph taken shortly after his arrest. The State argued that the photographs
were relevant because they would help the jury determine whether Mohamed
was the driver of the van by providing clear images of him to compare with the
surveillance footage. Mohamed objected to admission of the photographs. He
argued that they were unnecessary and that the booking photograph carried a
significant risk of undue prejudice. The State agreed to redact the booking
photograph to eliminate any indication that it was taken in the jail. The resulting
3 No. 80601-7-I/4
photograph showed Mohamed only from the top of his shoulders upward and
was titled, “Photo of Abdijabar Mohamed Taken 5-13-19.”
The trial court admitted the evidence. It concluded that the photographs
were relevant, admissible, and not unduly prejudicial. Mohamed stipulated that
the jail booking photograph pictured him. The State published the two
photographs and played the video from Salman’s minivan for the jury. The State
also showed the jury surveillance video and a still photograph of Mohamed using
Salman’s credit card at the Bartell Drugs.
The jury convicted Mohamed as charged. The court sentenced him to a
standard-range sentence of 19 and a half months. At sentencing, Mohamed
asked the trial court to strike the requirement to pay supervision fees from the
judgment and sentence because he is indigent. The trial court refused, leaving
discretion to impose the fees with the Department of Corrections.
Mohamed appeals.
ANALYSIS
Admissibility of Photographs
Mohamed claims the trial court erred by admitting the two photographs
because they were irrelevant, unduly prejudicial, and cumulative. We review a
trial court’s decision to admit or exclude evidence for abuse of discretion. State
v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014). A trial court abuses
its discretion when a decision is manifestly unreasonable or based on untenable
grounds or reasons. Gunderson, 181 Wn.2d at 922.
4 No. 80601-7-I/5
According to Mohamed, the Department of Licensing and jail booking
photographs had little relevance because the jury “was able to compare the
driver in the video to Mr. Mohamed himself, who was present in court.” The
State argues the photographs were relevant to prove the identity of the driver on
the video. We agree with the State.
Generally, all relevant evidence is admissible. ER 402. “Relevant
evidence” has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” ER 401. The threshold to admit relevant
evidence is very low, and even minimally relevant evidence is admissible. State
v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
Here, the defense argued the video did not clearly show that Mohamed
was the driver of the minivan. The State offered the photographs to prove that
Mohamed was the man pictured in the videos. The photographs assisted the
jury by providing known images of the defendant for comparison to the man in
the videos. As such, the photographs were relevant to the central question of
identity. See State v. Rivers, 129 Wn.2d 697, 711-12, 921 P.2d 495 (1996).
Mohamed contends that the prejudicial effect of the photographs
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, ) No. 80601-7-I ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION ABDIJABAR AHMED MOHAMED, ) ) Appellant. )
BOWMAN, J. — A jury convicted Abdijabar Ahmed Mohamed of theft of a
motor vehicle and second degree identity theft after he appeared on surveillance
video taken from inside a stolen minivan. Mohamed appeals the trial court’s
admission of his driver’s license and jail booking photographs as evidence to
compare to the surveillance video. Because the trial court did not abuse its
discretion in determining the relevance of the photographs outweighed any
undue prejudice, we affirm the convictions, but remand to strike the community
custody supervision fees from Mohamed’s judgment and sentence.
FACTS
Mohammed Salman parked his minivan at a gym and went inside to
exercise. He left his wallet with credit cards, recent clothing purchases, and
other personal items inside the minivan. When Salman left the gym two hours
later, his minivan was missing. Salman called 911 to report the theft.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 80601-7-I/2
Soon after, Salman received alerts that someone tried using his credit
card at a nearby Subway restaurant, gas station, and Bartell Drugs store. A
friend drove Salman to those locations to search for the missing minivan.
Salman found his van abandoned outside the Subway restaurant. His wallet, a
large amount of cash, and various personal items were missing.
Salman called 911 to tell the police that he found his stolen minivan. A
police officer responded and began gathering information. The officer looked for
latent fingerprints but found none. The minivan appeared undamaged from the
theft.
Salman told the officer that the minivan had a two-way video camera
attached to the rear-view mirror that records the “front of the car and the inside of
the car at the same time.” Salman played the video on the camera and obtained
still images of the person driving his van. The officer used his phone to take
pictures of those images.
Salman gave a detective the minivan video downloaded to a thumb drive.
The video consists of three files of about 10 minutes each. Partway through the
first file, the video shows a man walk past the front of the minivan, stop, and turn
back toward the van. The man opens the driver’s door, gets into the minivan,
and immediately begins driving. Most of the remaining video shows the man in
the van driving. While the video does not focus on the driver’s seat, the man’s
face is often visible coming in and out of the frame. The man looks directly into
the camera several times. At the end of the third video, the man pulls into a
Subway parking lot, parks, and rummages around in the van, finding a new pair
2 No. 80601-7-I/3
of shoes. He then leaves the minivan, returns with another man about three
minutes later, and continues to rummage through the contents of the van. The
video ends abruptly as the man removes the charger from the camera.
The detective took still photographs of the driver’s face from the minivan
video and sent one to nearby law enforcement agencies for help in identifying the
suspect. Several agencies responded, identifying the person driving the minivan
as “Abdijabar A. Mohamed.”
The detective tried to find surveillance videos from the businesses where
Mohamed used Salman’s credit cards. Only Bartell Drugs could produce images
of Mohamed’s purchase. Besides a surveillance video, Bartell Drugs provided
transaction details showing the purchase Mohamed made with Salman’s credit
card.
The State charged Mohamed with one count of theft of a motor vehicle
and one count of second degree identity theft. During the jury trial, the State
moved to admit Mohamed’s driver’s license photograph and his jail booking
photograph taken shortly after his arrest. The State argued that the photographs
were relevant because they would help the jury determine whether Mohamed
was the driver of the van by providing clear images of him to compare with the
surveillance footage. Mohamed objected to admission of the photographs. He
argued that they were unnecessary and that the booking photograph carried a
significant risk of undue prejudice. The State agreed to redact the booking
photograph to eliminate any indication that it was taken in the jail. The resulting
3 No. 80601-7-I/4
photograph showed Mohamed only from the top of his shoulders upward and
was titled, “Photo of Abdijabar Mohamed Taken 5-13-19.”
The trial court admitted the evidence. It concluded that the photographs
were relevant, admissible, and not unduly prejudicial. Mohamed stipulated that
the jail booking photograph pictured him. The State published the two
photographs and played the video from Salman’s minivan for the jury. The State
also showed the jury surveillance video and a still photograph of Mohamed using
Salman’s credit card at the Bartell Drugs.
The jury convicted Mohamed as charged. The court sentenced him to a
standard-range sentence of 19 and a half months. At sentencing, Mohamed
asked the trial court to strike the requirement to pay supervision fees from the
judgment and sentence because he is indigent. The trial court refused, leaving
discretion to impose the fees with the Department of Corrections.
Mohamed appeals.
ANALYSIS
Admissibility of Photographs
Mohamed claims the trial court erred by admitting the two photographs
because they were irrelevant, unduly prejudicial, and cumulative. We review a
trial court’s decision to admit or exclude evidence for abuse of discretion. State
v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014). A trial court abuses
its discretion when a decision is manifestly unreasonable or based on untenable
grounds or reasons. Gunderson, 181 Wn.2d at 922.
4 No. 80601-7-I/5
According to Mohamed, the Department of Licensing and jail booking
photographs had little relevance because the jury “was able to compare the
driver in the video to Mr. Mohamed himself, who was present in court.” The
State argues the photographs were relevant to prove the identity of the driver on
the video. We agree with the State.
Generally, all relevant evidence is admissible. ER 402. “Relevant
evidence” has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” ER 401. The threshold to admit relevant
evidence is very low, and even minimally relevant evidence is admissible. State
v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002).
Here, the defense argued the video did not clearly show that Mohamed
was the driver of the minivan. The State offered the photographs to prove that
Mohamed was the man pictured in the videos. The photographs assisted the
jury by providing known images of the defendant for comparison to the man in
the videos. As such, the photographs were relevant to the central question of
identity. See State v. Rivers, 129 Wn.2d 697, 711-12, 921 P.2d 495 (1996).
Mohamed contends that the prejudicial effect of the photographs
outweighs any probative value because they “primed the jury” to see him in the
videos. And he argues that the booking photograph was particularly prejudicial
because it also implied that he has a propensity to commit crimes.
The court may exclude relevant evidence
if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
5 No. 80601-7-I/6
by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
ER 403; State v. Scherf, 192 Wn.2d 350, 387, 429 P.3d 776 (2018). For the
purposes of ER 403, we assume evidence is relevant and consider only whether
its prejudicial effect outweighs the probative value. Carson v. Fine, 123 Wn.2d
206, 222, 867 P.2d 610 (1994). The party seeking to exclude the evidence has
the burden of proving unfair prejudice. State v. Burkins, 94 Wn. App. 677, 692,
973 P.2d 15 (1999).
Mohamed claims that showing “both photos of [him] to the jury before
playing the video” in court caused the jury to “unconsciously fill the gaps in the
low-quality footage with features observed in the photos.” At trial, Mohamed
argued that admitting the photographs “is basically leading the jury to believe that
the individual who is depicted in the video is this individual here.” He offered no
expert opinion or legal authority in support of his argument. On appeal,
Mohamed cites multiple law review articles discussing brain science and
cognitive functioning, arguing that the jury had been “primed” by the photographs
of Mohamed. But Mohamed’s argument still lacks citation to legal authority that
applies “priming” in this context.1 We need not consider issues unsupported by
citations to legal authority. State v. Bello, 142 Wn. App. 930, 932 n.3, 176 P.3d
554 (2008); RAP 10.3(a)(6). And Mohamed fails to address how the
1 Generally, “priming” applies in the context of a due process challenge to unduly suggestive procedures used by the police to procure victim or witness identification of a suspect. See State v. Collins, 152 Wn. App. 429, 434-35, 216 P.3d 463 (2009); State v. Vickers, 148 Wn.2d 91, 118-19, 59 P.3d 58 (2002).
6 No. 80601-7-I/7
photographs would be more likely to “prime” the jury to identify him in the
surveillance videos than seeing him in court as the named defendant at trial.
Mohamed also argues the jail booking photograph created “ ‘extra
potential for prejudice’ ” by implying a past arrest and inviting an inference of
criminal propensity.2 But “[a] booking photograph is not necessarily prejudicial.”
State v. McCreven, 170 Wn. App. 444, 485, 284 P.3d 793 (2012). Admission is
proper where identity is at issue and the photograph is redacted to remove the
identifiable aspects of a “mug shot.” See State v. Tate, 74 Wn.2d 261, 267, 444
P.2d 150 (1968); State v. Scott, 93 Wn.2d 7, 13, 604 P.2d 943 (1980);
McCreven, 170 Wn. App. at 485. Here, the State cropped the booking
photograph so that only Mohamed’s face and upper shoulders were visible.
Finally, Mohamed claims the trial court abused its discretion by admitting
the photographs because they were unnecessary and cumulative given his
presence in the courtroom. Generally, the prosecution is “entitled to prove its
case by evidence of its own choice.” State v. Taylor, 193 Wn.2d 691, 698, 444
P.3d 1194 (2019) (citing Old Chief v. United States, 519 U.S. 172, 186-87, 117 S.
Ct. 644, 136 L. Ed. 2d 574 (1997)). The State has the right to present “ample
evidence” to prove every element of the crime. State v. Rahier, 37 Wn. App.
571, 574, 681 P.2d 1299 (1984). Exclusion of unduly cumulative evidence is
appropriate only where the evidence substantially outweighs its probative value.
See State v. Price, 126 Wn. App. 617, 644, 109 P.3d 27 (2005), abrogated on
other grounds by State v. Hampton, 184 Wn.2d 656, 361 P.3d 734 (2015). This
2 Quoting State v. Newton, 42 Wn. App. 718, 726, 714 P.2d 684 (1986), rev’d on other grounds, 109 Wn.2d 69, 743 P.2d 254 (1987).
7 No. 80601-7-I/8
is not the case here. The photographs provided the jury with two other images of
Mohamed for comparison to the man in the videos. And the image in the
booking photograph showed Mohamed’s appearance closer in time to the date
the videos were taken. Mohamed fails to show that admission of the two
photographs was unduly cumulative.
Supervision fees
Mohamed argues the trial court improperly imposed community custody
supervision fees despite a finding of indigence. The State concedes the court
should strike this discretionary legal financial obligation from the judgment and
sentence. We accept the State’s concession. See State v. Dillon, 12 Wn. App.
2d 133, 153, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198
(2020).
We affirm Mohamed’s convictions for theft of a motor vehicle and second
degree identity theft but remand to strike the community custody supervision fees
from the judgment and sentence.
WE CONCUR: