IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 79604-6-I ) Respondent, ) DIVISION ONE ) v. ) ) DOTSON, LETHEORY EARLACOSIE, ) UNPUBLISHED OPINION DOB: 08/10/1969, ) ) Appellant. )
BOWMAN, J. — Letheory Earlacosie Dotson appeals his jury conviction for
second degree burglary. He claims that officers lacked reasonable suspicion or
probable cause to seize him. He also argues that the trial court erred in denying
his Batson1 challenge to the State’s peremptory excusal of a juror based solely
on the juror’s age, that the court deprived him of his constitutional right to present
a defense, and that insufficient evidence supports his conviction. Finally, Dotson
seeks reversal of his conviction for instructional error, ineffective assistance of
counsel, and cumulative error. Because officers had probable cause to seize
and arrest Dotson, sufficient evidence supports his conviction for burglary in the
second degree, and he shows no prejudicial error, we affirm.
FACTS
On February 19, 2018 at about 4:15 a.m., Lynnwood Police Department
officers responded to an alarm at Sparta’s Pizza and Pasta House. The officers
1 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct 1712, 90 L. Ed. 2d 69 (1986).
Citations and pin cites are based on the Westlaw online version of the cited material. No. 79604-6-I/2
arrived within 10 minutes and saw the handle on the restaurant’s back door
“dangling” and loose with small dents and scrapes around it. Officers entered the
restaurant and found the cash registers on the floor, unopened and still
connected to computers by cables.
Officer Lindsay Carter and the restaurant’s owner looked at surveillance
video footage captured on Sparta’s security cameras showing a person breaking
into the building. Officer Carter broadcasted a description of the person as a
“white male, gray hooded sweatshirt, gray pants, black gloves, black ski mask.”
She also took a screenshot of the person’s image from the waist up and texted
the photograph to “all the patrol phones.” A K-9 unit arrived at the restaurant and
tried to track the burglar. The tracking dog alerted most strongly in the northern
direction from the restaurant but did not find a suspect.
Sergeant Allen Correa was patrolling the area and dispatched to Sparta’s.
He first set up a containment perimeter during the K-9 track but eventually drove
north to the area where the dog reacted most strongly. At about 5:10 a.m.,
Sergeant Correa spotted Dotson walking along State Route 99 roughly four
blocks north of Sparta’s. Sergeant Correa compared Dotson with the photograph
Officer Carter had texted of the person on the surveillance video. Although
Dotson is a black man, he appeared “almost identical” to the photograph. Dotson
was dressed in dark jeans with a gray hooded jacket, a balaclava-type black
scarf, black gloves, and a black sport bag with a single strap that crossed his
chest diagonally from his left shoulder. Sergeant Correa described it as “a pretty
unusual outfit” with a distinctive logo on the bag strap.
2 No. 79604-6-I/3
Sergeant Correa stopped his patrol car and asked Dotson “what he was
doing.” Dotson said he was “coming from Everett.” Sergeant Correa asked
Dotson how he could be coming from Everett when he was in the photograph on
Sergeant Correa’s phone. Dotson “just shrugged his shoulders.” Sergeant
Correa then asked whether Dotson had “ever gone in a building at all, ever,” to
which Dotson responded, “You know my past.”
Officer Carter and Officer Josh Magnussen arrived at the scene about a
minute after Sergeant Correa contacted Dotson. Officer Carter believed Dotson
matched “the exact description” of the surveillance footage, “except he was a
black male.” Officer Carter immediately read Dotson his Miranda2 rights while
Officer Magnussen placed Dotson in handcuffs.
After Dotson’s arrest, Sergeant Correa returned to Sparta’s to watch the
surveillance video, “[j]ust to see if I could get any kind of additional factors that
might help me make a determination on if I had probable cause.” Sergeant
Correa noticed the person in the video wore black gloves. Recalling that Dotson
had gloves on, he returned to the scene to compare them with what he had seen
on the video. The gloves matched. Sergeant Correa brought the owner of
Sparta’s to the scene as well “to get his opinion on if he thought it was the same
person in the video.” The owner “said something similar to that’s for sure him.”
Officer Carter took a photograph of Dotson as he appeared at the arrest
scene. The officers also “ran” his name through their database and learned he
was “Mr. Dotson.” A search of Dotson’s bag after his arrest revealed a six- to
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 No. 79604-6-I/4
eight-inch railroad spike. Rust covered most of the spike but the pointed end
appeared recently damaged, “exposing shiny metal.”
The State charged Dotson with one count of second degree burglary.
Dotson moved to exclude police and witness “identification testimony” as a
violation of his due process rights; suppress the railroad spike and all evidence
obtained during his arrest, including photographs of him, under CrR 3.6; and
suppress his statements to the police under CrR 3.5. The court denied the
motions.3 The court found that Sergeant Correa had “sufficient probable cause”
to stop Dotson “and indeed for an arrest” and that Dotson’s statements to
Sergeant Correa were voluntary.4 The court issued an oral ruling and asked the
parties to prepare written findings of fact and conclusions of law.5
A different judge presided over Dotson’s jury trial. While the parties had
not yet presented written findings of fact and conclusions of law from the
suppression hearing, they did not dispute the substance of the previous judge’s
evidentiary rulings.
During jury selection, Dotson objected to the State’s peremptory excusal
of juror 14. Dotson first argued the State’s excusal stemmed from the juror’s
sexual orientation and precluded under GR 37. Dotson then amended his
3 The court did grant Dotson’s motion to suppress testimony that Dotson was “the suspect in the video” and to “just let the jurors review the video and make that determination.” 4 The court noted however that only the statement Dotson made about coming from Everett was admissible. Because “the timing is unclear” as to the other statements, the court ruled the trial judge would have to decide “whether they come in at all.” 5 The court stated, “I will make oral rulings today and I will be inviting counsel to set forth the Court’s decision in writing at a later time.”
4 No. 79604-6-I/5
objection, alleging the State based its peremptory challenge solely on the juror’s
age and precluded under Batson. The court overruled Dotson’s objection.
At trial, the court admitted the screenshot that Officer Carter captured from
the surveillance video (below left) as well as the photograph that she took of
Dotson at the arrest scene (below right).6
Sergeant Correa testified about the similarity between the clothing worn by
the person in the surveillance video and Dotson’s clothing at the time of the
arrest. He described Dotson as wearing “a very large coat with a — that I would
call a balaclava, or ski mask, underneath that that was concealing a fair amount
of his face. And he had some kind of a strap that went across his clothing that
had two distinctive logos on it.”
Dotson wanted his investigator to testify in rebuttal. Dotson claimed the
investigator’s testimony would refute Sergeant Correa and show bias because
Sergeant Correa was “surprisingly combative” during a pretrial interview with the
investigator. Defense counsel based his request on Sergeant Correa’s refusal
6 All of the photographic evidence was in color.
5 No. 79604-6-I/6
“to sign” and review his answers that the investigator wrote and “to be recorded
despite the prosecutor being there.” The court denied his request.
Before closing arguments, the court granted Dotson’s request to instruct
the jury as to the lesser included offense of criminal trespass in the first degree.7
Dotson prepared and offered a packet of jury instructions consisting of an
instruction defining “criminal trespass in the first degree,” a “lesser crime”
consideration instruction, and a criminal trespass in the first degree verdict form.
Dotson did not include a “to convict” instruction for criminal trespass in the
packet. The court used the jury instructions Dotson provided.
The jury convicted Dotson of burglary in the second degree. Dotson
appeals.
ANALYSIS
Motion to Suppress
A. Findings of Fact and Conclusions of Law
I. Timeliness
The trial court did not enter written findings of fact and conclusions of law
memorializing its evidentiary rulings until after Dotson filed his opening brief on
appeal. Dotson assigns error to several findings in his reply brief. The State
argues that Dotson failed to assign error to the findings in his opening brief and
that because the “parties agreed to the content of the written findings and
conclusions before trial started,” we should consider the findings unchallenged
7 The State did not object to giving the lesser crime instructions.
6 No. 79604-6-I/7
on appeal, “regardless of when those findings and conclusions were actually
filed.” We disagree.
A trial court must enter written findings of fact and conclusions of law
following a hearing on the admissibility of evidence. CrR 3.6(b). The court may
submit written findings and conclusions while an appeal is pending only “if the
defendant is not prejudiced by the belated entry of findings.” State v. Cannon,
130 Wn.2d 313, 329, 922 P.2d 1293 (1996). We do not infer any prejudice from
delay alone. State v. Head, 136 Wn.2d 619, 625, 964 P.2d 1187 (1998).
Here, Dotson’s appellate attorney had no chance to review the court’s
findings for error before filing his opening brief. And the State offers no authority
for its assertion that failure to object to written findings and conclusions of law at
the trial court precludes assigning error to those findings on appeal. “ ‘Where no
authorities are cited in support of a proposition, the court is not required to search
out authorities, but may assume that counsel, after diligent search, has found
none.’ ” State v. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) (quoting
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
Precluding Dotson from assigning error to the court’s findings in his reply
would prejudice him as a result of the trial court’s belated action. We review
Dotson’s assignments of error to the trial court’s findings of fact as asserted in his
reply brief.
II. Substantial Evidence
“We review challenged findings of fact for substantial evidence, that is,
enough evidence to persuade a fair-minded rational person of the truth of the
7 No. 79604-6-I/8
finding. We treat unchallenged findings as verities on appeal.” State v. Allen,
138 Wn. App. 463, 468, 157 P.3d 893 (2007).8
Dotson challenges six of the trial court’s findings of fact:
6. At approximately 5:12 a.m., Sergeant Correa saw and contacted a suspect, ultimately identified as the defendant, approximately 4 blocks away from Sparta’s Pizza. 7. Sergeant Correa believed the defendant was the person in the surveillance footage image because he was wearing the same clothing and same type of single-strap bag with identifying logos. 8. Officer Carter arrived to the defendant's location. She photographed the defendant at this location. (State’s Exhibit 3). 9. State’s Exhibit 3 does not illustrate what the defendant looked like at the time Sergeant Correa initially contacted him based on the fact that it was taken by Officer Carter later in law enforcement’s contact with the defendant, but it is similar. 10. Sergeant Correa left the scene, reviewed the surveillance video with [the restaurant owner], and returned to the scene. 11. [The restaurant owner] went through an identification procedure with the law enforcement officers at the scene the defendant was contacted at and identified the suspect as the person he saw in the surveillance video.
Substantial evidence supports the trial court’s findings. Sergeant Correa
testified he contacted Dotson at 5:12 a.m., about four blocks north of Sparta’s.
He testified Dotson looked “almost identical” to the person in the photograph
texted by Officer Carter. He said:
[Dotson] was wearing a pretty unusual outfit. The manner that he was wearing the outfit was exactly the same as what was on the video. There were a couple distinctive logos on the strap. And they were in the exact same place, the exact same position. And then the gloves also matched.
Officer Carter testified she responded to Sergeant Correa’s dispatch that
he was “out with a male.” She arrived one minute later at 5:13 a.m., read Dotson
8 Citation omitted.
8 No. 79604-6-I/9
his Miranda warnings, and photographed him. Sergeant Correa returned to
Sparta’s, reviewed the surveillance video footage with help from the owner, and
drove Sparta’s owner back to the scene. The owner positively identified Dotson
as the man in the surveillance video at about 5:27 a.m.
III. Seizure
Dotson challenges the court’s conclusions of law, arguing that “police did
not have probable cause or a reasonable articulable suspicion” justifying his
seizure. We disagree.
We review a trial court’s conclusions of law de novo. State v. Acrey, 148
Wn.2d 738, 745, 64 P.3d 594 (2003). Whether a person has been seized under
the Fourth Amendment to the United States Constitution is a mixed question of
law and fact. State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 (1996),
overruled on other grounds by State v. O’Neill, 148 Wn.2d 564, 62 P.3d 489
(2003). An individual asserting a seizure in violation of article I, section 7 of the
Washington Constitution bears the burden of proving that there was a seizure.
State v. Young, 135 Wn.2d 498, 510, 957 P.2d 681 (1998).
A person is “seized” when an officer, by physical force or show of
authority, restrains the person’s freedom of movement such that a reasonable
person would not believe he or she is free to leave. O’Neill, 148 Wn.2d at 574.
Not every seizure amounts to a formal arrest. See State v. Thompson, 93 Wn.2d
838, 840, 613 P.2d 525 (1980). An officer may seize and detain a person to
investigate whether circumstances warrant an arrest. Terry v. Ohio, 392 U.S. 1,
20-21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). For such a detention, an officer
9 No. 79604-6-I/10
needs only a reasonable suspicion based on objective facts that the individual is
involved in criminal conduct. Thompson, 93 Wn.2d at 840-41.
We use an objective standard to determine whether an encounter with
police rises to the level a formal arrest. State v. Reichenbach, 153 Wn.2d 126,
135, 101 P.3d 80 (2004). That is, whether a reasonable detainee under the
circumstances would consider himself under custodial arrest. State v. Radka,
120 Wn. App. 43, 49, 83 P.3d 1038 (2004); State v. Rivard, 131 Wn.2d 63, 75,
929 P.2d 413 (1997). An officer must have probable cause to believe the person
has committed a crime to support a formal arrest. Dunaway v. New York, 442
U.S. 200, 213, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979).
We also use an objective standard to determine whether probable cause
supports an arrest. State v. Gaddy, 152 Wn.2d 64, 70, 93 P.3d 872 (2004)
(citing State v. Graham, 130 Wn.2d 711, 724, 927 P.2d 227 (1996)). Probable
cause exists “when the arresting officer is aware of facts or circumstances”
sufficient to cause a reasonable officer to believe a person committed a crime.
Gaddy, 152 Wn.2d at 70. The burden is on the State to establish probable cause
for an arrest. State v. Grande, 164 Wn.2d 135, 141, 187 P.3d 248 (2008). And
we consider only the information available to officers at the time of arrest. Wong
Sun v. United States, 371 U.S. 471, 481-82, 83 S. Ct. 407, 9 L. Ed. 2d 441
(1963).
The parties dispute when Sergeant Correa seized Dotson and when the
seizure evolved into a custodial arrest. We need not resolve this dispute
10 No. 79604-6-I/11
because sufficient evidence supported probable cause to arrest Dotson for
burglary in the second degree when Sergeant Correa first contacted him.
When Sergeant Correa first saw Dotson, he knew that a male suspect had
entered Sparta’s just after 4:00 a.m. without permission. He knew the person
broke the outer door handle, rummaged through drawers, and tried to remove
cash registers. Sergeant Correa also had a screenshot of the burglar inside the
restaurant wearing a large gray jacket with a hood, a black balaclava-type head
and neck cover, and carrying a black logoed sport bag strapped diagonally from
his left shoulder across his chest. When Sergeant Correa first noticed Dotson on
the sidewalk, he saw that Dotson wore a large gray jacket with a hood, black
head and neck scarf that left only his nose and eyes exposed, and carried an
identical sport bag strapped diagonally across his chest from his left shoulder.
And Dotson was walking only four blocks north of Sparta’s, the same direction
that the tracking dog alerted most strongly.9
Dotson argues Sergeant Correa did not have probable cause to arrest him
because Officer Carter described the person in the surveillance video as a white
male wearing gray pants. And Dotson points out that he is a black male who was
wearing blue jeans at the time. But probable cause is not a technical inquiry.
State v. Perez, 5 Wn. App. 2d 867, 872, 428 P.3d 1251, remanded, 193 Wn.2d
1008, 439 P.3d 1075 (2019). Instead, it rests on “ ‘the totality of facts and
9 The trial court’s findings state the suspect was “wearing the same clothing and same
type of single-strap bag with identifying logos” as Dotson. The court concluded that Dotson’s appearance “and the overall surrounding circumstances of location and time of day” made the identification sufficiently individualized. See State v. Weyand, 188 Wn.2d 804, 811-12, 399 P.3d 530 (2017) (an officer must have a reasonable suspicion of criminal activity “individualized to the person being stopped”).
11 No. 79604-6-I/12
circumstances within the officer’s knowledge at the time of the arrest.’ ” Perez, 5
Wn. App. 2d at 872 (quoting State v. Fricks, 91 Wn.2d 391, 398, 588 P.2d 1328
(1979)). Here, the similarities between the screenshot photograph of the suspect
and Dotson’s appearance, combined with his proximity in time and location to the
crime, were enough to support a reasonable belief that Dotson committed the
burglary.
Dotson also argues that probable cause did not support his arrest
because there were possible innocent explanations for his appearance and
presence in the area. He claims he was wearing common and appropriate
clothing for the season and near bus stops on a busy arterial, suggesting he
could have been waiting for a bus. But probable cause is not negated just
because it is also possible to “imagine an innocent explanation for observed
activities.” State v. Fore, 56 Wn. App. 339, 344, 783 P.2d 626 (1989) (citing 1
Wayne R. LaFave, Search and Seizure § 3.2(e), at 595 (2d ed. 1987)).
Finally, Dotson compares his arrest to those of individuals arrested near
“drug house[s]” to suggest that Sergeant Correa should not have construed his
presence near the burglary scene as suspicious. His comparison is inapt.
Dotson cites cases such as State v. Doughty, 170 Wn.2d 57, 62, 239 P.3d 573
(2010), that consider whether officers who saw a defendant enter and leave a
known “drug house” had probable cause to believe that a crime had been
committed. While it is true that “ ‘mere proximity’ ” to a known “drug house” may
be insufficient to establish that a person is engaged in criminal activity;10 here,
10 Doughty, 470 Wn. App. at 62, 64 (quoting Thompson, 93 Wn.2d at 841).
12 No. 79604-6-I/13
Sergeant Correa did not stop Dotson only because of his location near the scene
of the crime. Officers had substantial evidence of the facts and circumstances
surrounding the burglary, including an actual image of the suspect, and were
objectively concerned only with identifying the person who committed the crime.11
The trial court did not err in denying Dotson’s motion to suppress
evidence.
Batson Challenge
Dotson claims the trial court erred in denying his challenge under Batson
to the State’s peremptory excusal of juror 14 “solely based on his age.” We
disagree.
We review a challenge under Batson for “clear error” and defer to the trial
court in as much as “its rulings are factual.” State v. Jefferson, 192 Wn.2d 225,
232, 429 P.3d 467 (2018) (citing State v. Saintcalle, 178 Wn.2d 34, 41, 309 P.3d
326 (2013), abrogated on other grounds by City of Seattle v. Erickson, 188
Wn.2d 721, 398 P.3d 1124 (2017)).12 “ ‘[T]he determination of the trial judge is
accorded great deference on appeal, and will be upheld unless clearly
11Dotson also argues that Sergeant Correa must not have had probable cause to arrest him because Sergeant Correa returned to the restaurant to view the surveillance video and “determin[e] . . . if” he had probable cause. But we determine probable cause by objective facts, not the subjective opinion of an officer. State v. Huff, 64 Wn. App. 641, 645, 826 P.2d 698 (1992). 12 Dotson argues for the first time on appeal that the exclusion of juror 14 affected his
right to a jury composed of a fair cross section of the community. See In re Pers. Restraint Petition of Yates, 177 Wn.2d 1, 19, 296 P.3d 872 (2013); Taylor v. Louisiana, 419 U.S. 522, 526- 27, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). Because Dotson did not object to the venire below, the record is insufficient to address Dotson’s claim. We decline to reach this argument. RAP 2.5(a).
13 No. 79604-6-I/14
erroneous.’ ” State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008)13
(quoting State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995)).
Defendants and jurors are entitled to a jury selection process free from
racial animus. Batson, 476 U.S. at 86-87. A party raising a challenge to a
peremptory excusal under Batson must “first demonstrate that the struck juror is
a member of a ‘cognizable [constitutionally protected] group.’ ” Erickson, 188
Wn.2d at 732 (quoting Batson, 476 U.S. at 96).14 Then the objecting party must
make a prima facie showing that the challenge was exercised for a discriminatory
purpose. Erickson, 188 Wn.2d at 726. If the objecting party makes a prima facie
showing, the burden shifts to the party exercising the peremptory excusal to
provide an adequate, nondiscriminatory justification for the strike. Erickson, 188
Wn.2d at 726-27. The court must then weigh all of the relevant circumstances
and determine whether the party made the excusal for a discriminatory purpose.
Erickson, 188 Wn.2d at 727 (citing Johnson v. California, 545 U.S. 162, 168, 125
S. Ct. 2410, 162 L. Ed. 2d 129 (2005)).
Dotson’s attorney first objected to the State excusing juror 14 under GR
37, alleging juror’s sexual orientation motivated the excusal. But the trial court
pointed out that GR 37 covers only excusals “based on race or ethnicity.” The
court also noted that the jury questionnaire did not reflect juror 14’s sexual
orientation nor did his responses during voir dire. Dotson’s attorney then
13 Internal quotation marks omitted. 14 See also State v. Burch, 65 Wn. App. 828, 834, 830 P.2d 357 (1992) (extending racial discrimination during jury selection in Batson to gender-based discrimination).
14 No. 79604-6-I/15
changed his initial objection to argue the excusal “might be age discrimination”
based on the juror’s young age and prohibited under Batson.15
Dotson offers no authority that age is a cognizable protected classification
under Batson. RAP 10.3(a)(6). Indeed, Dotson concedes that “age is not, as a
general matter, a prohibited reason for excluding a juror with a peremptory
challenge.” Again, we need not “ ‘search out authorities’ ” and may assume that
counsel “ ‘found none.’ ” Logan, 102 Wn. App. at 911 n.1 (quoting DeHeer, 60
Wn.2d at 126).
At any rate, Dotson fails to make a prima facie showing of purposeful
discrimination. He suggests that the State engaged in a pattern of excusing
“young” jurors because it also excused juror 8 who was 20 years old. But Dotson
offers no evidence that the prosecutor engaged in disparate questioning of
“young” jurors, nor does he show how many “young” jurors sat on the venire or
how many remained after the State’s peremptory excusals. Dotson’s allegation
that a discriminatory purpose motivated the State’s preemptory excusal of juror
14 fails under Batson. The trial court did not “clear[ly] err” in denying his
challenge. Jefferson, 192 Wn.2d at 232; Hicks, 163 Wn.2d at 486.
Constitutional Right to Present a Defense
Dotson argues the trial court interfered with his constitutional right to
present a defense by precluding his investigator from testifying to show Sergeant
Correa’s “bias.” We disagree.
15Because Dotson’s challenge rested on “age discrimination,” citation to cases such as SmithKline Beecham Corp. v. Abbot Laboratories, 740 F.3d 471, 480-81 (9th Cir. 2014) (extending Batson to peremptory challenges based on sexual orientation), is unhelpful.
15 No. 79604-6-I/16
Criminal defendants have a constitutional right to present a defense. U.S.
CONST. amends. V, VI, XIV; W ASH. CONST. art. I, §§ 3, 22; Chambers v.
Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). We
apply a two-part analysis to determine whether the exclusion of testimonial
evidence violates the right. State v. Arndt, 194 Wn.2d 784, 797-98, 453 P.3d 696
(2019) (citing State v. Clark, 187 Wn.2d 641, 648-56, 389 P.3d 462 (2017)).
First, we review the trial court’s evidentiary rulings for an abuse of discretion.
Arndt, 194 Wn.2d at 797. Then, we consider de novo whether those rulings
deprived the defendant of his constitutional right to present a defense. Arndt,
194 Wn.2d at 797-98.
Questions of relevancy and admissibility of testimonial evidence are within
the sound discretion of the trial court. In re Welfare of Shope, 23 Wn. App. 567,
569, 596 P.2d 1361 (1979); Roper v. Mabry, 15 Wn. App. 819, 822-23, 551 P.2d
1381 (1976); State v. Temple, 5 Wn. App. 1, 4-5, 485 P.2d 93 (1971). We will
reverse a trial court’s rulings on those issues only if there is “a reasonable
possibility that the testimony would have changed the outcome of trial.” State v.
Fankhouser, 133 Wn. App. 689, 695, 138 P.3d 140 (2006); State v. Aguirre, 168
Wn.2d 350, 361, 229 P.3d 669 (2010).
A defendant’s right to present a defense is subject to “ ‘established rules
of procedure and evidence designed to assure both fairness and reliability in the
ascertainment of guilt and innocence.’ ” State v. Blair, 3 Wn. App. 2d 343, 350,
415 P.3d 1232 (2018) (quoting Chambers, 410 U.S. at 302).
‘‘The rule is firmly established in this state that a witness cannot be impeached by showing the falsity of his testimony
16 No. 79604-6-I/17
concerning facts collateral to the issue. . . . “The test as to whether a matter is material or collateral . . . is whether the cross-examining party is entitled to prove it in support of his case.”
State v. Putzell, 40 Wn.2d 174, 183, 242 P.2d 180 (1952)16 (quoting State v.
Johnson, 192 Wash. 467, 471-72, 73 P.3d 1342 (1937)).
Although the law allows cross-examination into matters which will affect the credibility of a witness by showing bias, ill will, interest or corruption (3 [James Henry Wigmore, Evidence § 943 (3d ed. 1940)]), the evidence sought to be elicited must be material and relevant to the matters sought to be proved and specific enough to be free from vagueness; otherwise, all manner of argumentative and speculative evidence will be adduced.
State v. Jones, 67 Wn.2d 506, 512, 408 P.2d 247 (1965).
Here, the trial court precluded testimony from Dotson’s investigator about
Sergeant Correa’s conduct during a pretrial interview. The investigator would
have testified that Sergeant Correa refused to be recorded or to sign a transcript
of the interview. Dotson also wanted the investigator to rebut Sergeant Correa’s
testimony that she “misquoted me five or six times” during the interview. Dotson
contends that if he ”had been allowed to present evidence of Sergeant Correa’s
uncooperative attitude and bias against the defense, it would have called into
question the rest of Sergeant Correa’s testimony, including his decision to seize
Dotson in the first place.” He claims that since Sergeant Correa was “the State’s
chief prosecution witness,” the inability to show bias was particularly prejudicial.
But Sergeant Correa testified that he refused to be recorded or sign a
written transcript of the defense interview. And the trial court correctly
determined that a dispute about whether the investigator misquoted Sergeant
16 Citations omitted.
17 No. 79604-6-I/18
Correa during the interview was collateral to any material issue at trial. The trial
court did not abuse its discretion when it precluded the investigator’s testimony.
Sufficiency of Evidence
Dotson argues sufficient evidence does not support the jury’s
determination that he “was the same person depicted in the surveillance video
from inside the restaurant.”
When reviewing a challenge to the sufficiency of the evidence, we must
determine whether, after examining the facts in the light most favorable to the
State, any rational trier of fact could have found the essential elements of the
charged crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338-
39, 851 P.2d 654 (1993); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068
(1992). Such a challenge admits the truth of the State’s evidence and all
reasonable inferences from it. Salinas, 119 Wn.2d at 201. Circumstantial
evidence is as equally reliable as direct evidence. State v. Delmarter, 94 Wn.2d
634, 638, 618 P.2d 99 (1980).
Identity is a question of fact for the jury. State v. Hill, 83 Wn.2d 558, 560,
520 P.2d 618 (1974). “[A]ny relevant fact, either direct or circumstantial, which
would convince or tend to convince a person of ordinary judgment, in carrying on
his everyday affairs, of the identity of a person should be received and
evaluated.” Hill, 83 Wn.2d at 560 (citing 1 H. Underhill, Criminal Evidence § 125
(5th ed. P. Herrick 1956, Supp. 1970)).
Here, the jury viewed Sparta’s surveillance video and photographs of
Dotson taken at the time of his arrest. The jury then had the chance to compare
18 No. 79604-6-I/19
those images to one another and to Dotson in the courtroom. And Officer
Magnussen testified that he arrested the suspect near the restaurant and later
confirmed at the jail the identity of that person as Letheory Dotson.
Still, Dotson argues that the evidence is insufficient to show identity
because no witnesses testified that he “was the same person depicted in the
surveillance video from inside the restaurant” and “no one ever identified [him] as
the Letheory Dotson they were talking about.” Citing State v. Huber, 129 Wn.
App. 499, 119 P.3d 388 (2005), Dotson argues that “identity of names” is not
sufficient to show that he was the person arrested at the scene. But Huber
addresses evidence of identity “when criminal liability depends on the accused’s
being the person to whom a document pertains.” Huber, 129 Wn. App. at 502.
The jury here was not tasked with determining whether Dotson was the same
person named in a document.
And while it is true that none of the witnesses at trial identified Dotson as
the person in the surveillance video, this is because Dotson himself moved in
limine to preclude the State’s witnesses from testifying that he was the person in
the video. Instead, he asked the court to “let the jurors review the video and
make that determination.”
Viewing the evidence in the light most favorable to the State, a reasonable
jury could find that Dotson was the person depicted in the surveillance video and
arrested near the restaurant. We reject his sufficiency of evidence challenge.
19 No. 79604-6-I/20
Instructional Error
Dotson argues his conviction should be reversed because the court did
not include a “to convict” instruction for the lesser included criminal trespass
charge. The State argues that Dotson invited any error in failing to give the
instruction because defense counsel requested, prepared, and offered the
instructions on the lesser included charge of criminal trespass. We agree with
the State.
We review the sufficiency of jury instructions de novo. State v. Clark-El,
196 Wn. App. 614, 619, 384 P.3d 627 (2016) (citing State v. Brooks, 142 Wn.
App. 842, 848, 176 P.3d 549 (2008)). Instructions are sufficient if they permit
each party to argue their side of the case, are not misleading, and when read as
a whole, properly inform the jury of the applicable law. State v. Mark, 94 Wn.2d
520, 526, 618 P.2d 73 (1980). The to-convict instruction carries special weight
because it gives the jury a “ ‘yardstick’ ” by which to measure guilt or innocence.
State v. Mills, 154 Wn.2d 1, 6, 109 P.3d 415 (2005).
The invited error doctrine prohibits a party from setting up an error at trial
and then challenging that error on appeal. In re Pers. Restraint of Coggin, 182
Wn.2d 115, 119, 340 P.3d 810 (2014). To determine whether Dotson invited
error, we consider whether he affirmatively assented to the error, materially
contributed to it, or benefited from it. Coggin, 182 Wn.2d at 119. We strictly
enforce the invited error doctrine no matter if the error was intentional. State v.
Ortiz-Triana, 193 Wn. App. 769, 777, 373 P.3d 335 (2016).
20 No. 79604-6-I/21
Courts have enforced invited error when a defendant proposes jury
instructions that do not form a complete and accurate statement of the law. In
State v. Studd, 137 Wn.2d 533, 538, 973 P.2d 1049 (1999), six defendants all
proposed instructions that erroneously stated the law of self-defense. Some also
proposed instructions that remedied the error. Studd, 137 Wn.2d at 538-39.
While the error was of constitutional magnitude, our Supreme Court held that
those defendants who proposed the erroneous instruction without seeking to add
a remedial instruction had invited the error and could not then complain on
appeal. Studd, 137 Wn.2d at 546-47. And in State v. Corbett, 158 Wn. App.
576, 591, 242 P.3d 52 (2010), Division Two of this court held that when a
defendant proposes instructions but does not include a unanimity instruction, the
invited error doctrine precludes him from appealing the trial court’s failure to give
such an instruction.
Here, defense counsel proposed jury instructions as to the lesser included
charge of criminal trespass in the first degree but did not provide a to-convict
instruction. Counsel drafted the instructions and offered them to the court. He
then agreed to the proposed instructions when presented by the court in final
form. Defense counsel actively participated in and materially contributed to the
defective instructions. Invited error bars Dotson from now complaining for the
first time on appeal that his proposed instructions did not form an accurate and
complete statement of the law.
21 No. 79604-6-I/22
Ineffective Assistance of Counsel
Dotson asserts his counsel was ineffective by neglecting to offer the
criminal trespass to-convict instruction. The State argues that Dotson was not
prejudiced by the error because the court properly instructed the jurors not to
reach the lesser included offense if they convicted Dotson of the burglary charge.
We agree with the State.
We may review deficient jury instructions where invited error resulted from
ineffective assistance of counsel. State v. Rodriguez, 121 Wn. App. 180, 184, 87
P.3d 1201 (2004) (citing State v. Aho, 137 Wn.2d 736, 744-45, 975 P.2d 512
(1999)). To determine whether counsel was ineffective, we apply the two-prong
test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, a
defendant must show both that counsel’s performance was deficient and that the
deficiency prejudiced him. Strickland, 466 U.S. at 687. A defendant is
prejudiced if “ ‘there is a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceedings would have been different.’ ” State
v. Grier, 171 Wn.2d 17, 34, 246 P.3d 1260 (2011) (quoting State v. Kyllo, 166
Wn.2d 856, 862, 215 P.3d 177 (2009)). We need not “address both components
of the inquiry if the defendant makes an insufficient showing on one.” Strickland,
466 U.S. at 697. “If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, which we expect will often be so, that
course should be followed.” Strickland, 466 U.S. at 697.
22 No. 79604-6-I/23
Here, the court’s instructions to the jury omitted the to-convict instruction
for the lesser included offense of criminal trespass in the first degree. But
instruction 11 directed the jury to consider the lesser included offense of criminal
trespass only if it “was not satisfied beyond a reasonable doubt” as to Dotson’s
guilt on the burglary charge. And jury instruction 14 stated, in pertinent part:
When completing the verdict forms A and B, you will first consider the crime of burglary in the second degree as charged. If you unanimously agree on a verdict, you must fill in the blank provided in verdict form A the words “not guilty” or the word “guilty,” according to the decision you reach. If you cannot agree on a verdict, do not fill in the blank provided in Verdict Form A. If you find the defendant guilty on verdict form A, do not use verdict form B.
The jury wrote the word “guilty” on verdict form A for the burglary charge and left
verdict form B for the lesser crime of criminal trespass blank.
We presume the jury followed the court’s instructions absent evidence to
the contrary. State v. Montgomery, 163 Wn.2d 577, 596, 183 P.3d 267 (2008).
Because the court properly instructed the jury on how to proceed if it did not
reach a verdict on the burglary charge and the jury left blank the verdict form for
the lesser included offense of criminal trespass, we presume the jury had no
doubt that Dotson committed burglary in the second degree and did not reach the
instructions for the lesser crime of criminal trespass. Dotson fails to show that
including the to-convict instruction for criminal trespass in the first degree would
have led to a different outcome.
Cumulative Error
Under the cumulative error doctrine, a defendant may be entitled to a new
trial when cumulative errors produce a trial that is unfair. State v. Emery, 174
23 No. 79604-6-I/24
Wn.2d 741, 766, 278 P.3d 653 (2012) (citing In re Pers. Restraint of Lord, 123
Wn.2d 296, 332, 868 P.2d 835 (1994)). Since no individual error undermined
Dotson’s trial, his cumulative error claim fails.
Because probable cause supports Dotson’s arrest, sufficient evidence
supports his conviction for burglary in the second degree, and Dotson shows no
prejudicial error, we affirm.
WE CONCUR: