FILED
NOV. 18,2014
I n the Office of the Clerk of Cou rt
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31720-0-111 ) Respondent, ) ) v. ) ) GILBERTO MACIAS, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Gilberto Macias appeals his first degree burglary, attempting to
elude a pursuing police vehicle, possession of a stolen firearm, and second degree
unlawful possession of a firearm convictions. He contends the trial court erred by
admitting hearsay, and insufficient evidence supports his convictions. We affirm.
FACTS
Francisca VanderMeulen returned home from work to find a sports utility vehicle
(SUV) backed in her driveway with all the doors open. She saw five men run out of her
house carrying items from her home, get into the SUV, and take off. She followed the
SUV while calling 911 on her cellular phone. She reported the vehicle's license plate
number. She chased after the vehicle until police arrived and took over the pursuit. No. 31720-0-111 State v. Macias
Officer Kris Johnson was involved in the vehicle pursuit. She tried to block the
SUV by stopping her patrol car in front of the vehicle but the driver drove around her.
As the SUV approached, the officer made direct eye contact with the driver. She
identified Mr. Macias as the driver. When asked about her certainty that it was Mr.
Macias, Officer Johnson responded, "100% sure." Report of Proceedings (RP) at 292.
Officers set up spike strips causing a tire blowout that forced the SUV to stop in a field.
Officers observed significant movement in the vehicle as they approached. The officers
found five men, including Mr. Macias and Christopher Alires, crammed into the back
seat. Ms. VanderMeulen's items were located inside the vehicle.
Mr. Alires told officers Mr. Macias was the driver and had a firearm that had been
thrown out the window. Officers searched the vehicle after obtaining a search warrant
and found a brown holster in the front center console. A few feet away from the SUV,
officers found a black .40 caliber Glock handgun model 22 on the street. The gun was
identified as the same black .40 caliber Glock handgun model 22 with a brown holster
stolen from John Verbrugge's home the night before.
The State charged Mr. Macias with first degree burglary with a firearm
enhancement, attempting to elude with an endangerment enhancement, possession of
a stolen firearm, and second degree unlawful possession of a firearm (because Mr.
Macias was under 18 years old).
During trial, Mr. Alires became a hostile witness for the State. He begrudgingly
testified he identified Mr. Macias as the driver when officers arrived, however, he denied I
I 2
I No. 31720-0-111 State v. Macias
telling officers about a firearm being thrown from the window. Instead, Mr. Alires
testified he did not remember what he said to officers. Later, Mr. Alires testified he
remembered a firearm but could not remember what it looked like.
Deputy Ron Shepard and Sergeant Mike Russell both testified over defense
objection; they related Mr. Alires had identified Mr. Macias as the driver and had
reported a firearm had been thrown out the window at the location where the gun was
discovered. The court allowed the testimony under ER 801 (d)(1 )(iii) "as an identification
as involved in the robbery, driving and with the gun." RP at 227.
At trial, evidence showed Mr. Macias' shoe smelled like cat urine at the time of
his arrest. Mr. Verbrugge testified his basement had a strong odor of cat urine because
his cat often missed the litter box.
The jury found Mr. Macias guilty as charged. He appealed.
ANALYSIS
A. Hearsay Statements
The issue is whether the trial court erred by allowing two officers to testify as to
Mr. Alires' statements after they stopped the SUV. Mr. Macias argues the officers'
testimony regarding Mr. Alires reporting that Mr. Macias was the driver and had a gun
was inadmissible hearsay because Mr. Alires refused to testify to the same during trial.
We review a trial court's hearsay ruling for an abuse of discretion. State v.
Strauss, 119 Wn.2d 401,417,832 P.2d 78 (1992). Discretion is abused if it is
exercised without tenable grounds or reasons. State ex reI. Carroll v. Junker, 79 Wn.2d
II I No. 31720-0-111 , I. State v. Macias 1 1 1 I :} 12,26,482 P.2d 775 (1971). "Hearsay" is "a statement, other than one made by the 1 ~ declarant while testifying at the trial or hearing, offered in evidence to prove the truth of I!, ~ a the matter asserted." ER 801 (c). Unless an exception or exclusion applies, hearsay is
inadmissible. ER 802. Under ER 801 (d)(1 )(iii), a statement is not hearsay if, "[t]he
declarant testifies at the trial or hearing and is subject to cross examination concerning
the statement and the statement is ... (iii) one of identification of a person made after
perceiving the person."
In State v. Grover, 55 Wn. App. 252, 259, 777 P.2d 22 (1989), Division One of
this court held under ER 801 (d)(1 )(iii) an officer was permitted to testify that a witness
had identified the defendant by name after witnessing a robbery. The court reasoned
no violation of either ER 801 (d)(1 )(iii) or the confrontation clause existed so long as the
defendant is provided the opportunity to cross-examine the declarant. Grover, 55 Wn.
App. at 258. Memory loss or denial does not render the statement inadmissible. See
Grover, 55 Wn. App. at 255 (holding admission of statement was proper even when the
declarant testified she had no memory of the crime or of identifying the defendant).
Our case is analogous to Grover. Here, Mr. Alires made identification statements
relating to who was driving after perceiving Mr. Macias on the night of the arrests. Mr.
Alires testified for the State at Mr. Macias' trial, but was considered a hostile witness.
He admitted identifying Mr. Macias as the driver. Because Mr. Macias had the
"opportunity" to cross-examine the witness, the officers' testimony regarding the
witness' prior statement was not hearsay. Grover, 55 Wn. App. at 258.
4 No. 31720-0-111 State v. Macias
But, Mr. Alires' statement about Mr. Macias having a firearm and it being thrown
from the window is not an "identification" statement as contemplated by ER
801 (d)(1)(iii). This statement, therefore, does not qualify under the hearsay exception
and it was error for the court to allow Deputy Shepard and Sergeant Russell to testify at
trial about Mr. Alires' statement. Nevertheless, we see no respect in which any error by
the trial court in considering inadmissible evidence could have changed the result. See
Brundridge v. FluorFed. Servs., Inc., 164 Wn.2d 432, 452,191 P.3d 879 (2008) ("The
error [of admitting improper hearsay] is harmless unless it was reasonably probable that
it changed the outcome of the triaL").
B. Evidence Sufficiency
Free access — add to your briefcase to read the full text and ask questions with AI
FILED
NOV. 18,2014
I n the Office of the Clerk of Cou rt
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 31720-0-111 ) Respondent, ) ) v. ) ) GILBERTO MACIAS, ) UNPUBLISHED OPINION ) Appellant. )
BROWN, J. - Gilberto Macias appeals his first degree burglary, attempting to
elude a pursuing police vehicle, possession of a stolen firearm, and second degree
unlawful possession of a firearm convictions. He contends the trial court erred by
admitting hearsay, and insufficient evidence supports his convictions. We affirm.
FACTS
Francisca VanderMeulen returned home from work to find a sports utility vehicle
(SUV) backed in her driveway with all the doors open. She saw five men run out of her
house carrying items from her home, get into the SUV, and take off. She followed the
SUV while calling 911 on her cellular phone. She reported the vehicle's license plate
number. She chased after the vehicle until police arrived and took over the pursuit. No. 31720-0-111 State v. Macias
Officer Kris Johnson was involved in the vehicle pursuit. She tried to block the
SUV by stopping her patrol car in front of the vehicle but the driver drove around her.
As the SUV approached, the officer made direct eye contact with the driver. She
identified Mr. Macias as the driver. When asked about her certainty that it was Mr.
Macias, Officer Johnson responded, "100% sure." Report of Proceedings (RP) at 292.
Officers set up spike strips causing a tire blowout that forced the SUV to stop in a field.
Officers observed significant movement in the vehicle as they approached. The officers
found five men, including Mr. Macias and Christopher Alires, crammed into the back
seat. Ms. VanderMeulen's items were located inside the vehicle.
Mr. Alires told officers Mr. Macias was the driver and had a firearm that had been
thrown out the window. Officers searched the vehicle after obtaining a search warrant
and found a brown holster in the front center console. A few feet away from the SUV,
officers found a black .40 caliber Glock handgun model 22 on the street. The gun was
identified as the same black .40 caliber Glock handgun model 22 with a brown holster
stolen from John Verbrugge's home the night before.
The State charged Mr. Macias with first degree burglary with a firearm
enhancement, attempting to elude with an endangerment enhancement, possession of
a stolen firearm, and second degree unlawful possession of a firearm (because Mr.
Macias was under 18 years old).
During trial, Mr. Alires became a hostile witness for the State. He begrudgingly
testified he identified Mr. Macias as the driver when officers arrived, however, he denied I
I 2
I No. 31720-0-111 State v. Macias
telling officers about a firearm being thrown from the window. Instead, Mr. Alires
testified he did not remember what he said to officers. Later, Mr. Alires testified he
remembered a firearm but could not remember what it looked like.
Deputy Ron Shepard and Sergeant Mike Russell both testified over defense
objection; they related Mr. Alires had identified Mr. Macias as the driver and had
reported a firearm had been thrown out the window at the location where the gun was
discovered. The court allowed the testimony under ER 801 (d)(1 )(iii) "as an identification
as involved in the robbery, driving and with the gun." RP at 227.
At trial, evidence showed Mr. Macias' shoe smelled like cat urine at the time of
his arrest. Mr. Verbrugge testified his basement had a strong odor of cat urine because
his cat often missed the litter box.
The jury found Mr. Macias guilty as charged. He appealed.
ANALYSIS
A. Hearsay Statements
The issue is whether the trial court erred by allowing two officers to testify as to
Mr. Alires' statements after they stopped the SUV. Mr. Macias argues the officers'
testimony regarding Mr. Alires reporting that Mr. Macias was the driver and had a gun
was inadmissible hearsay because Mr. Alires refused to testify to the same during trial.
We review a trial court's hearsay ruling for an abuse of discretion. State v.
Strauss, 119 Wn.2d 401,417,832 P.2d 78 (1992). Discretion is abused if it is
exercised without tenable grounds or reasons. State ex reI. Carroll v. Junker, 79 Wn.2d
II I No. 31720-0-111 , I. State v. Macias 1 1 1 I :} 12,26,482 P.2d 775 (1971). "Hearsay" is "a statement, other than one made by the 1 ~ declarant while testifying at the trial or hearing, offered in evidence to prove the truth of I!, ~ a the matter asserted." ER 801 (c). Unless an exception or exclusion applies, hearsay is
inadmissible. ER 802. Under ER 801 (d)(1 )(iii), a statement is not hearsay if, "[t]he
declarant testifies at the trial or hearing and is subject to cross examination concerning
the statement and the statement is ... (iii) one of identification of a person made after
perceiving the person."
In State v. Grover, 55 Wn. App. 252, 259, 777 P.2d 22 (1989), Division One of
this court held under ER 801 (d)(1 )(iii) an officer was permitted to testify that a witness
had identified the defendant by name after witnessing a robbery. The court reasoned
no violation of either ER 801 (d)(1 )(iii) or the confrontation clause existed so long as the
defendant is provided the opportunity to cross-examine the declarant. Grover, 55 Wn.
App. at 258. Memory loss or denial does not render the statement inadmissible. See
Grover, 55 Wn. App. at 255 (holding admission of statement was proper even when the
declarant testified she had no memory of the crime or of identifying the defendant).
Our case is analogous to Grover. Here, Mr. Alires made identification statements
relating to who was driving after perceiving Mr. Macias on the night of the arrests. Mr.
Alires testified for the State at Mr. Macias' trial, but was considered a hostile witness.
He admitted identifying Mr. Macias as the driver. Because Mr. Macias had the
"opportunity" to cross-examine the witness, the officers' testimony regarding the
witness' prior statement was not hearsay. Grover, 55 Wn. App. at 258.
4 No. 31720-0-111 State v. Macias
But, Mr. Alires' statement about Mr. Macias having a firearm and it being thrown
from the window is not an "identification" statement as contemplated by ER
801 (d)(1)(iii). This statement, therefore, does not qualify under the hearsay exception
and it was error for the court to allow Deputy Shepard and Sergeant Russell to testify at
trial about Mr. Alires' statement. Nevertheless, we see no respect in which any error by
the trial court in considering inadmissible evidence could have changed the result. See
Brundridge v. FluorFed. Servs., Inc., 164 Wn.2d 432, 452,191 P.3d 879 (2008) ("The
error [of admitting improper hearsay] is harmless unless it was reasonably probable that
it changed the outcome of the triaL").
B. Evidence Sufficiency
The issue is whether sufficient evidence exists to support Mr. Macias'
convictions. He argues insufficient evidence shows he (1) was driving the SUV to
support the attempting to elude conviction, (2) possessed a firearm to support the
possession convictions, or (3) partiCipated in the burglary of Ms. VanderMeulen's home.
The review question presented for evidentiary sufficiency is whether there was
evidence from which the trier of fact could find each element of the offense was proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-22,616 P.2d 628 (1980). We
must consider the evidence in a light most favorable to the prosecution. Green, 94
Wn.2d at 221-22. "Deference must be given to the trier offact who resolves conflicting
No. 31720-0-111 State v. Macias
testimony and evaluates the credibility of witnesses and persuasiveness of material
evidence." State v. Carver, 113 Wn.2d 591,604,781 P.2d 1308,789 P.2d 306 (1989).
Attempting to Elude. In order for an individual to be found guilty of attempting to
elude a pursuing police vehicle, the State must prove that he or she "willfully fail[ed] or
refuse[d] to immediately bring his or her vehicle to a stop and [drove] his or her vehicle
in a reckless manner while attempting to elude a pursuing police vehicle, after being
given a visual or audible signal to bring the vehicle to a stop." RCW 46.61.024. Mr.
Macias argues no evidence shows he was the driver of the vehicle. However, Mr. Alires
testified he was the driver and Officer Johnson testified she was "100% sure" Mr.
Macias was the driver. RP at 292. The testimony of two eye witnesses is more than
sufficient for a rational trier of fact to find Mr. Macias was the driver. Sufficient evidence
exists to support this conviction.
Possession. To support a charge of second degree unlawful possession of a I firearm, the State must prove beyond a reasonable doubt the defendant was under 18 I , years of age and owns, has in his or her possession, or has in his or her control any
firearm. RCW 9.41.040(2)(a)(iv). Similarly, a person commits possession of a stolen
firearm when "he or she possesses, carries, delivers, sells, or is in control of a stolen
firearm." RCW 9A.56.310(1). Here, a stolen gun was located near where Mr. Macias
was stopped, there was testimony that the stolen gun came from a home with a strong
cat urine smell, and Mr. Macias' shoes smelled like cat urine. Because "[c]ircumstantial
evidence and direct evidence are equally reliable," a rational trier of fact could find Mr.
No. 31720-0-11 I State v. Macias
Macias possessed a firearm. State v. Fiser, 99 Wn. App. 714, 718, 995 P.2d 107
(2000). Sufficient evidence exists to support these convictions.
First Degree Burglary. A person is guilty of first degree burglary "if, with intent to I commit a crime against a person or property therein, he or she enters or remains
unlawfully in a building and if, in entering or while in the building or in immediate flight
therefrom. the actor or another participant in the crime ... is armed with a deadly
weapon." RCW 9A.52.020(1). Here, Ms. VanderMeulen identified five men leaving her
home with her personal items. They got into an SUV which she followed until police
took over the pursuit. Five men were located inside the SUV with her items still inside.
And, as discussed above, a gun was involved in the crime. This evidence is sufficient to
persuade a rational trier of fact that beyond a reasonable doubt Mr. Macias committed
first degree burglary.
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.