IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 87262-1-I
Respondent,
v. UNPUBLISHED OPINION
MARKUS R. PETERSEN,
Appellant.
BOWMAN, A.C.J. — A jury convicted Markus R. Petersen of second degree
theft for stealing a minibike from Coastal Farm and Ranch (Coastal). Petersen
appeals, arguing his counsel was ineffective for failing to object to the admission
of the booking photo from the day of his arrest. Finding no prejudicial error, we
affirm.
FACTS
In April 2024, Patrick St. John worked as an assistant store manager at
Coastal in Sequim. St. John discovered that someone had stolen a Coleman
B200 minibike from the store on March 19, 2024. He reviewed surveillance
footage of the store from March 19 and saw a man, later identified as Petersen,
struggling to move an unassembled, boxed minibike at around 6:45 p.m. At first,
Petersen tried to move the box using a wheelbarrow. When that did not work, he
let the box fall out of the wheelbarrow and pushed it by hand to the side of the
patio, where he left it near a gate. No. 87262-1-I/2
An hour later, a surveillance camera at the front of the store shows a
person park a truck next to Coastal’s sidewalk at around 7:49 p.m. The man got
out of the driver’s seat and met Petersen, who was standing on the sidewalk.
The pair briefly disappear from the camera’s view and then return to the truck,
carrying what looks like the same large minibike box. They placed the box in the
truck bed, got in the cab, and drove off. St. John reported the theft to police and
gave them the surveillance footage.
Sequim Police Department Detective Richard Larsen recognized Petersen
as one of the men in Coastal’s surveillance video and interviewed him at the
precinct on May 30, 2024. Petersen told Detective Larsen that his uncle bought
him the minibike online. But the phone number for his uncle “[did] not work” and
Petersen had no receipt or proof of purchase. Detective Larsen then arrested
Petersen for the theft. The State charged Petersen with second degree theft as
a principle or an accomplice. The case went to trial on August 19, 2024.
At trial, St. John testified on behalf of the State. He explained to the jury
that when Coastal sells “anything with a gas powered engine,” it “has to be
started and assembled by staff prior to leaving the store.” So, if an online order
came in for a minibike, Coastal would first build and test it, then call the customer
to let them know the minibike was ready for pick up. He also explained that
Coastal keeps track of customer purchases using their point of sale (POS)
system. St. John told the jury that he looked in the POS system for sales of a
minibike. He found that there was no sale of a minibike on March 19, 2024. And
that the last minibike had been sold by Coastal on March 16 to an in-person
2 No. 87262-1-I/3
customer. Through St. John’s testimony, the State admitted the surveillance
videos from March 19 and several screenshots of the videos.
Detective Larsen also testified for the State. He said that he knew
Petersen and identified him in the courtroom. The prosecutor asked Detective
Larsen if he remembered what Petersen was wearing on the day he arrested
him. Detective Larsen said Petersen was wearing “[j]eans and a red shirt.” The
prosecutor then showed Detective Larsen a booking photo of Petersen from May
30, 2024. Larsen identified the photo as “a booking photo” of Petersen taken on
the day of his arrest, which “is typically done when you get into the Clallam
County jail.” Detective Larsen then agreed that the photo showed Petersen in a
red shirt. The State moved to admit the booking photo without objection. The
court granted the motion and published the photo to the jury.
Petersen testified on his own behalf. He said that his uncle gifted him the
minibike for his birthday. And that his uncle mailed him a receipt, telling Petersen
that he could pick up the minibike at Coastal. Petersen said he went to Coastal
on March 19 with his “best friend” “Bailey” to get the minibike. When he got
there, he showed his receipt to the cashier, who told him to wait. Petersen
waited for about 15 minutes and then decided to get the minibike himself.
Petersen explained that the minibike box was “extremely heavy,” so he at
first tried to put it in a wheelbarrow. But he eventually pushed it along the ground
toward the gate of the store. Petersen said that the box “was a heck of a lot
bigger than [he] expected” and there were “a lot of other things” in the bed of
Bailey’s truck. So, he and Bailey drove to Bailey’s home to empty the bed of the
3 No. 87262-1-I/4
truck. About an hour later, Petersen and Bailey returned in the truck and put the
minibike in its bed.
Petersen told the jury he no longer had the proof of purchase from his
uncle and was “pretty sure [he] probably threw it away.” Petersen acknowledged
on direct examination that he was previously convicted of theft, burglary, and
making a false statement.
The jury convicted Petersen as charged. On September 3, 2024, the
court sentenced Petersen to three months of confinement. Petersen appeals.
ANALYSIS
Petersen argues his counsel was ineffective for failing to object to the
admission of his booking photo. We disagree.
An ineffective assistance of counsel claim presents mixed questions of law
and fact that we review de novo. State v. K.A.B., 14 Wn. App. 2d 677, 707, 475
P.3d 216 (2020) (citing State v. Linville, 191 Wn.2d 513, 518, 423 P.3d 842
(2018)). The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee effective assistance of
counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011) (citing
Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)). We apply the two-prong Strickland test to determine whether
counsel was ineffective. State v. Jeffries, 105 Wn.2d 398, 417-18, 717 P.2d 722
(1986). Under Strickland, a defendant must show both (1) that defense counsel’s
performance was deficient and (2) that the deficient performance resulted in
4 No. 87262-1-I/5
prejudice. 466 U.S. at 687. If the defendant fails to show either prong, their
claim fails and our inquiry ends. See id.
To establish prejudice, a defendant must show there is a reasonable
probability that except for counsel’s errors, the result of the proceeding would
have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995). In the context of failing to object to the admission of evidence, the
defendant must show that the court likely would have sustained the proposed
objection and that the result of the proceeding would have been different if the
court had not admitted the evidence. In re Pers. Restraint of Davis, 152 Wn.2d
647, 714, 101 P.3d 1 (2004).
Citing State v. Newton, 42 Wn. App.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, No. 87262-1-I
Respondent,
v. UNPUBLISHED OPINION
MARKUS R. PETERSEN,
Appellant.
BOWMAN, A.C.J. — A jury convicted Markus R. Petersen of second degree
theft for stealing a minibike from Coastal Farm and Ranch (Coastal). Petersen
appeals, arguing his counsel was ineffective for failing to object to the admission
of the booking photo from the day of his arrest. Finding no prejudicial error, we
affirm.
FACTS
In April 2024, Patrick St. John worked as an assistant store manager at
Coastal in Sequim. St. John discovered that someone had stolen a Coleman
B200 minibike from the store on March 19, 2024. He reviewed surveillance
footage of the store from March 19 and saw a man, later identified as Petersen,
struggling to move an unassembled, boxed minibike at around 6:45 p.m. At first,
Petersen tried to move the box using a wheelbarrow. When that did not work, he
let the box fall out of the wheelbarrow and pushed it by hand to the side of the
patio, where he left it near a gate. No. 87262-1-I/2
An hour later, a surveillance camera at the front of the store shows a
person park a truck next to Coastal’s sidewalk at around 7:49 p.m. The man got
out of the driver’s seat and met Petersen, who was standing on the sidewalk.
The pair briefly disappear from the camera’s view and then return to the truck,
carrying what looks like the same large minibike box. They placed the box in the
truck bed, got in the cab, and drove off. St. John reported the theft to police and
gave them the surveillance footage.
Sequim Police Department Detective Richard Larsen recognized Petersen
as one of the men in Coastal’s surveillance video and interviewed him at the
precinct on May 30, 2024. Petersen told Detective Larsen that his uncle bought
him the minibike online. But the phone number for his uncle “[did] not work” and
Petersen had no receipt or proof of purchase. Detective Larsen then arrested
Petersen for the theft. The State charged Petersen with second degree theft as
a principle or an accomplice. The case went to trial on August 19, 2024.
At trial, St. John testified on behalf of the State. He explained to the jury
that when Coastal sells “anything with a gas powered engine,” it “has to be
started and assembled by staff prior to leaving the store.” So, if an online order
came in for a minibike, Coastal would first build and test it, then call the customer
to let them know the minibike was ready for pick up. He also explained that
Coastal keeps track of customer purchases using their point of sale (POS)
system. St. John told the jury that he looked in the POS system for sales of a
minibike. He found that there was no sale of a minibike on March 19, 2024. And
that the last minibike had been sold by Coastal on March 16 to an in-person
2 No. 87262-1-I/3
customer. Through St. John’s testimony, the State admitted the surveillance
videos from March 19 and several screenshots of the videos.
Detective Larsen also testified for the State. He said that he knew
Petersen and identified him in the courtroom. The prosecutor asked Detective
Larsen if he remembered what Petersen was wearing on the day he arrested
him. Detective Larsen said Petersen was wearing “[j]eans and a red shirt.” The
prosecutor then showed Detective Larsen a booking photo of Petersen from May
30, 2024. Larsen identified the photo as “a booking photo” of Petersen taken on
the day of his arrest, which “is typically done when you get into the Clallam
County jail.” Detective Larsen then agreed that the photo showed Petersen in a
red shirt. The State moved to admit the booking photo without objection. The
court granted the motion and published the photo to the jury.
Petersen testified on his own behalf. He said that his uncle gifted him the
minibike for his birthday. And that his uncle mailed him a receipt, telling Petersen
that he could pick up the minibike at Coastal. Petersen said he went to Coastal
on March 19 with his “best friend” “Bailey” to get the minibike. When he got
there, he showed his receipt to the cashier, who told him to wait. Petersen
waited for about 15 minutes and then decided to get the minibike himself.
Petersen explained that the minibike box was “extremely heavy,” so he at
first tried to put it in a wheelbarrow. But he eventually pushed it along the ground
toward the gate of the store. Petersen said that the box “was a heck of a lot
bigger than [he] expected” and there were “a lot of other things” in the bed of
Bailey’s truck. So, he and Bailey drove to Bailey’s home to empty the bed of the
3 No. 87262-1-I/4
truck. About an hour later, Petersen and Bailey returned in the truck and put the
minibike in its bed.
Petersen told the jury he no longer had the proof of purchase from his
uncle and was “pretty sure [he] probably threw it away.” Petersen acknowledged
on direct examination that he was previously convicted of theft, burglary, and
making a false statement.
The jury convicted Petersen as charged. On September 3, 2024, the
court sentenced Petersen to three months of confinement. Petersen appeals.
ANALYSIS
Petersen argues his counsel was ineffective for failing to object to the
admission of his booking photo. We disagree.
An ineffective assistance of counsel claim presents mixed questions of law
and fact that we review de novo. State v. K.A.B., 14 Wn. App. 2d 677, 707, 475
P.3d 216 (2020) (citing State v. Linville, 191 Wn.2d 513, 518, 423 P.3d 842
(2018)). The Sixth Amendment to the United States Constitution and article I,
section 22 of the Washington Constitution guarantee effective assistance of
counsel. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011) (citing
Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984)). We apply the two-prong Strickland test to determine whether
counsel was ineffective. State v. Jeffries, 105 Wn.2d 398, 417-18, 717 P.2d 722
(1986). Under Strickland, a defendant must show both (1) that defense counsel’s
performance was deficient and (2) that the deficient performance resulted in
4 No. 87262-1-I/5
prejudice. 466 U.S. at 687. If the defendant fails to show either prong, their
claim fails and our inquiry ends. See id.
To establish prejudice, a defendant must show there is a reasonable
probability that except for counsel’s errors, the result of the proceeding would
have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995). In the context of failing to object to the admission of evidence, the
defendant must show that the court likely would have sustained the proposed
objection and that the result of the proceeding would have been different if the
court had not admitted the evidence. In re Pers. Restraint of Davis, 152 Wn.2d
647, 714, 101 P.3d 1 (2004).
Citing State v. Newton, 42 Wn. App. 718, 714 P.2d 684 (1986),1 Petersen
argues that admission of his booking photo the day Detective Larsen arrested
him was prejudicial because it “undermined [his] presumption of innocence and
suggested to the jury that he had criminal propensity.” But that case is inapt.
In Newton, the State admitted a booking photo of the defendant from “a
prior arrest.” 42 Wn. App. at 726-27. This admission disclosed the fact that the
defendant had been arrested separate from the crime for which he was on trial,
supporting an inference of criminal propensity. See id. at 272. But in State v.
Rivers, 129 Wn.2d 697, 712, 921 P.2d 495 (1996), our Supreme Court
recognized that the same prejudice does not exist when the court admits a
booking photo taken by police at the time of arrest for the crime with which the
defendant is charged. This is because such a photo does not disclose a prior
1 Reversed on other grounds, 109 Wn.2d 69, 743 P.2d 254 (1987).
5 No. 87262-1-I/6
arrest, and “the jury would reasonably have been aware that a booking
procedure, including photographing the [d]efendant, would have existed” for the
charged crime. Id.
Still, Petersen argues admission of the booking photo was prejudicial
because it “depicted him as [a] guilty criminal.” Citing State v. Finch, 137 Wn.2d
792, 975 P.2d 967 (1999), he likens the photo to “allowing jurors to see an
accused person in handcuffs.” In Finch, our Supreme Court recognized the
“substantial danger of destruction in the minds of the jury of the presumption of
innocence” where a defendant is brought to trial wearing prison garb, in
handcuffs, or is otherwise shackled. Id. at 844. But Petersen’s booking photo
does not depict him wearing prison garb, secured in handcuffs, or otherwise
shackled. The photo shows Petersen standing against a white brick wall and
wearing a red T-shirt. Nothing about the photo suggests that Petersen is a
criminal or that he committed the theft.
Finally, the evidence of Petersen’s guilt at trial was substantial. Petersen
admitted that he took the unassembled minibike from Coastal on March 19,
2024, and he explained how “extremely heavy” the box was and that he put it in
Bailey’s truck. And St. John testified that Coastal did not sell any minibikes on
that day. The only minibike sale around that time was in-person on March 16.
St. John also explained to the jury that if a customer ordered a minibike online,
Coastal would first build and test it before calling the customer to let them know it
was ready for pick up. But the surveillance videos show Petersen taking the
minibike from the store unassembled and still in its box. And Petersen admitted
6 No. 87262-1-I/7
it was him in the videos. As a result, Petersen cannot show that the outcome of
his trial would have been different had the court refused to admit the booking
photo from the day of his arrest.2
Because we find no prejudicial error, we need not address whether
counsel’s performance was deficient. Strickland, 466 U.S. at 687. We affirm
Petersen’s conviction of second degree theft.
WE CONCUR:
2 Petersen separately argues the court committed evidentiary error by admitting the booking photo. But we will reverse an evidentiary ruling only if it results in prejudice. State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001). Because Petersen fails to show prejudice, any error was harmless.