FILED
July 2, 2013
In the O ffice of the Clerk of Court
W A State Court of Appeals, Division nr
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) ) No. 30385-3-111 Respondent, ) ) v. ) ) NICOLE MARIE LOPEZ, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWAY, A.C.J. - Nicole Lopez appeals her conviction of possession ofa
stolen motor vehicle, which was based on mismatching vehicle identification numbers
(VINs) on a Dodge Durango in her possession. The State and Ms. Lopez each had
coherent but conflicting accounts of whether the Durango in her possession was one she
purchased in 2007 or one that was stolen in 2008. We reject Ms. Lopez's argument that
the charges against her should have been dismissed on account of a State failure to
preserve evidence and her claim of insufficient evidence to support her conviction. We
agree, however, that the trial court committed reversible error when it excluded evidence
of a diagnostic test supporting her version of events. We reverse and remand for a new
trial. No. 30385-3-111 State v. Lopez
FACTSANDPROCEDlrnALBACKGROUND
There may be no way to present the facts of this case that will not make the
reader's head spin. Beginning with the version of events presented by the State might be
the clearest.
A. The State's Version of Events
In October 2008, Raymond Munoz, who lived in Toppenish, reported his 2001
Dodge Durango stolen. His Durango was all black, with a gray interior. Its VIN ended
in the numbers 8028. Approximately a week later, Nicole Lopez, who lived in Zillah and
owned a 1998 Durango, originally green, reregistered her sport utility vehicle (SUV) as
having been repainted black with a red stripe. Her Durango was registered with a VIN
ending in 7932.
In January 2009, Yakima County Sheriffs Deputy Steve Changala obtained a
search warrant in connection with his investigation of an unrelated stolen vehicle. In the
course of the search of a property in Union Gap, he encountered a green Durango that
had been stripped of its tires, wheels, and some of its parts. Its license plate was missing
and the VIN plate on the dashboard had been removed. The VIN he recorded from the
door and the glove box ended in 7932 and was reported by the Department of Licensing
(DOL) to be the VIN ofa Durango owned by Nicole Lopez. But DOL records indicated
that Ms. Lopez's Durango was by then black and red. The deputy did not impound the
No. 30385-3-111 State v. Lopez
green Durango, photograph it, or collect any other evidence. He did note in his report
that its interior was brown.
A week later, on January 16~ 2009, the deputy stopped at the registered address for
Ms. Lopez's Durango and spoke with Ms. Lopez, who confirmed that she owned a black
and red Durango and told the deputy where it was parked. The deputy obtained a search
warrant for the SUV. He would later testify that the VIN plate on the dashboard of the
black and red Durango to which he was directed by Ms. Lopez matched the VIN for the
SUV registered to her (7932) but that the VIN reflected on the manufacturer's sticker on
the door did not; rather, it ended in 8028 and was the VIN for Mr. Munoz's stolen
Durango. The deputy would also testify that the VIN plate on the dashboard appeared to
him to have been tampered with. Concluding that Ms. Lopez had Mr. Munoz's stolen SUV
to which she had attached her dashboard VIN plate and mounted her license plate, he
impounded the Durango and had it towed to the Yakima County sheriffs secure lot, known
as the "bullpen," to be held as evidence. Report of Proceedings (RP) (Nov. 2, 2011) at
167. In December 2009, Ms. Lopez was charged with possession ofa stolen vehicle.
Although the trial court ultimately did not admit evidence of events after the
January 16, 2009 date on which the deputy impounded the black and red Durango, we
continue with the history of relevant events, including procedural developments, largely
from the State's perspective. Evidence of these later events was presented in pretrial
hearings and conferences.
No.30385-3-III State v. Lopez
Shortly after charges were filed against Ms. Lopez, Deputy Changala was asked
by the prosecutor to secure the abandoned green Durango, for evidence. When he
returned to the location where he had seen it, it was no longer there. Unbeknownst to the
deputy, the green Durango had been found abandoned in a drainage ditch in November
2009 by another officer, who impounded it without any idea it was relevant to a pending
criminal investigation. According to Deputy Changala, the day that the green Durango
was impounded proved to be the same day that Ms. Lopez transferred title to her Durango
to a woman named Stephanie Hawk.
The green Durango recovered from the drainage ditch was evidently released from
impound. Nothing in the record indicates the date. Neither pretrial nor trial records
contain any documentary evidence of its release. Deputy Changala testified to his belief
that it was released by the towing company, John Boys Towing, to Ms. Hawk. He
admitted, though, that Ms. Hawk denied knowing anything about the green Durango
when he questioned her. He did not identify the source of his belief that the green
Durango was released to Ms. Hawk.
Meanwhile, the black and red Durango seized from Ms. Lopez and impounded as
evidence was moved at some point from the secure bullpen to an unsecured sheriffs
parking lot. It was thereafter inadvertently released in March 2010 to Elite Towing, the
company that originally towed it. Since title had by then been transferred to Ms. Hawk,
she was notified of her right to recover it, which she did.
No. 30385-3-III State v. Lopez
Ms. Lopez's lawyer had requested access to the allegedly stolen Durango to have
an expert examine it for a VIN that is marked on the engine. In following up on that
request for the prosecutor, Deputy Changala learned that the Durango he had seized and
impounded as evidence in January 2009 had been released by mistake. Upon learning of
the release, Ms. Lopez moved for dismissal of the charges against her, arguing that the
State had failed to preserve material exculpatory evidence.
At the hearing on the motion to dismiss, Deputy Changala testified that he had
interviewed Ms. Hawk about her retrieval of the Durango from Elite Towing and was
told by her that upon recovering the SUV she turned it over to Ms. Lopez's boyfriend,
who loaned her money to obtain release of the SUV and was holding it as security until
repaid. (Ms. Hawk testified otherwise, as recounted below.) After hearing from the
deputy, Ms. Hawk, and other defense witnesses, the trial court denied the motion to
dismiss the charges, concluding that the State's release was inadvertent and that Ms.
Lopez could have arranged the desired examination through her boyfriend or Ms. Hawk.
In mid-November 2010, Ms. Lopez's lawyer reported to the court that the black
and red Durango released to Ms. Hawk had been found. The lawyer was either unable or
refused to identify who had it but reported that whoever had it was willing to make the
SUV available for inspection, which Ms. Lopez believed would vindicate her. She
conceded that the State was entitled to inspect the SUV as well and represented that it
might be produced in short order-perhaps that day.
No. 30385-3-II1 State v. Lopez
Then, as a result of an unrelated disqualification of Ms. Lopez's lawyer, there was
a hiatus in proceedings for many months. The next reference in the record to the
relocated Durango was by Ms. Lopez's new lawyer, who reported to the court that the
relocated SlN had been impounded again by the sheriffs department. He had been
unable to arrange its release so that its onboard diagnostics system could be read for the
VIN stored in the SUV's onboard computer. The State had reservations about releasing
the Durango from the bullpen lest it again be accused of failing to preserve evidence.
Ms. Lopez was granted an order releasing the Durango to a Dodge dealership for a
diagnostic test to identify the VIN. Upon completion of the test, the parties agreed that
the diagnostic test established that the SlN then in possession of the sheriffs office was
Ms. Lopez's Durango, VIN 7932.
The State contended that this Durango revealed to be Ms . Lopez's-now black
and red-was actually the green Durango stripped in 2008, later found in a drainage
ditch, impounded, and ostensibly released to Ms. Hawk at some unidentified time. The
State contended that in an effort to frustrate prosecution, the green Durango had been
repainted to replicate the paint job on the SUV earlier stolen from Mr. Munoz.
B. Ms. Lopez's Version of Events
Ms. Lopez purchased her Durango--then green-from EZ Buy Auto Sales in
2007. The owner ofEZ Buy testified that at the time of the sale to Ms. Lopez the SlN,
which had been rebuilt, still needed body work and a paint job. Ms. Lopez claimed that
she and her boyfriend repainted it black with a red stripe the following year.
Shortly after the SUV was repainted, Mr. Munoz saw it in the parking lot of a
Toppenish fast food restaurant and believed it to be his stolen SUV. Mr. Munoz knew
who stole his SUV and the thief had no known connection to Ms. Lopez. But Mr. Munoz
recognized certain characteristics of Ms. Lopez's Durango and persuaded her to wait
while he flagged down a Toppenish patrol officer. With Ms. Lopez's permission, patrol
officer Derrick Perez checked the VIN plate on the dashboard and VIN sticker on the
door as Mr. Munoz stood waiting. Officer Perez confirmed with DOL that the VIN
number on the door was for a Durango belonging to Ms. Lopez. The plate on the
dashboard was partially obscured with dust or oil and he was unable to read the full VIN
from the plate.
Ms. Lopez's defense theory highlighted inconsistencies and alleged shortcomings
in Deputy Changala's reports, including his report that the green Durango he concluded
was Ms. Lopez's had a brown interior, while hers was gray. She argued that the State
had no proof that the Durango the deputy seized and impounded in January 2009 bore a
VIN number ending in 8028 on its door sticker other than the deputy's testimony, and his
testimony conflicted with the SUV's examination several months earlier by Officer
Perez. She was never able to test the deputy's claim by examining the black and red
Durango when it was originally impounded as evidence.
Ms. Lopez's version of events, supported in pretrial testimony by Ms. Hawk, was
that Ms. Lopez and her boyfriend offered Ms. Hawk title to the Durango while it was
being held as evidence because Ms. Lopez needed to get another car and owning two cars
would disqualify her from medical coupons. Ms. Hawk accepted title knowing she might
never get the SUV. After the black and red Durango was released to her, Ms. Hawk sold
it for $5,000 to someone she could identify only as "a Mexican guy." RP (Oct. 15,2010)
at 62. When she learned later that Ms. Lopez needed the Durango for testing in her
defense, Ms. Hawk tried but was unable to find the buyer. Ms. Hawk denied that Ms.
Lopez's boyfriend loaned her money or that she had turned the Durango over to him.
When confronted with a statement she had signed for Deputy Changala identifying Ms.
Lopez's boyfriend, parenthetically, as the person who loaned her money to retrieve the
SUV, she claimed she was pressured to add the parenthetical identification by the deputy.
Ms. Hawk contradicted the State's representation that the green Durango
recovered from a drainage ditch was ever released to her. She testified that she was never
contacted by John Boys Towing, never picked up a green Durango from the towing
company, and that she told this to Deputy Changala when he questioned her about a
green SUV.
Ms. Lopez claimed that the black and red Durango relocated by the sheriffs
department in late 2010 or 2011 and still being held as evidence at the time of trial was
the same Durango Deputy Changala had seized and impounded as evidence in January
2009. She contends that the diagnostic test perfonned in 2011 proved that the only
Durango ever in her possession was the one she purchased from EZ Buy in 2007.
C. The Trial Court's Exclusion of Post-January 16,2009 Evidence
Ms. Lopez did not have the opportunity to conduct the diagnostic test until the
afternoon of the day that trial was set to commence. The State learned that the results
supported Ms . Lopez's ownership of the SUV and conceded that the test was valid. The
next trial day, the State moved to exclude the results of the test and, for that matter, to
exclude all evidence and argument relating to events after the Durango was seized from
Ms. Lopez on January 16,2009.
The State's reasoning was that with both Durangos outside its custody until the
sheriff s department relocated a black and red Durango in late 2010 or 2011, the
diagnostic test was not necessarily a test of the Durango it seized in January 2009. The
parties had a new dispute: Was the SUV presently in the possession of the sheriffs
department the one that Ms. Lopez bought in 2007, repainted in 2008, and that was seized
as evidence by Deputy Changala in January 2009, as she maintained? Or was it-as the
State maintained-the SUV she abandoned (still green), that was stripped and then
encountered by Deputy Changala while investigating other stolen property, that was
thereafter retrieved from a drainage ditch and released to Ms. Hawk, after which Ms.
Lopez or her boyfriend painted it to match the stolen Munoz vehicle?
The trial court heard from both sides on this issue over the first couple of days of
trial. It ultimately granted the State's motion, excluding, as irrelevant, evidence and
argument about events that occurred after January 16,2009.
The jury found Ms. Lopez guilty. She appeals.
ANALYSIS
Ms. Lopez contends on appeal that (1) the State's failure to preserve material,
exculpatory evidence violated her constitutional right to due process; (2) the tri~1 court
abused its discretion by excluding relevant evidence; (3) the State presented insufficient
evidence to establish that the Durango in her possession was stolen; (4) the State failed to
prove each of the alternative means presented to the jury; (5) the sentencing court erred in
finding Ms. Lopez had the present or future ability to pay costs; and (6) the trial court
erred in finding Ms. Lopez "used" a motor vehicle to commit possession of a stolen
vehicle when the SUV was the object of the crime.
We reject her first and third assignments of error, which, if established, would
entitle her to reversal and dismissal of the charges. We agree with Ms. Lopez' s second
assignment of error to the exclusion of the diagnostic test and other post-January 2009
evidence and conclude that the error was not hannless. Because we reverse and remand
for a new trial, we need not address her remaining assignments of error.
We address Ms. Lopez's two arguments for reversal and dismissal before turning
to her argument that the exclusion of evidence requires a new trial.
Ms. Lopez contends that the State's release of the black and red Durango seized
from her home was a failure to preserve materially exculpatory evidence that warranted
dismissal of the charges against her.
Under both state and federal constitutions, due process in criminal prosecutions
requires fundamental fairness and a meaningful opportunity to present a complete
defense. State v. Wittenbarger, 124 Wn.2d 467, 474-75,880 P.2d 517 (1994) (citing
California v. Trombetta, 467 U.S. 479,104 S. Ct. 2528,81 L. Ed. 2d 413 (1984)). To
satisfy due process, the prosecution has a duty to disclose material exculpatory evidence
and a related duty to preserve it. Id. at 475. The State's failure to preserve evidence that
is material and exculpatory violates a defendant's right to due process and requires that
the charges against the defendant be dismissed. Id.
Evidence is constitutionally material if it "possess[ es] an exculpatory value that
was apparent before it was destroyed and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means." Id. (citing
Trombetta, 467 U.S. at 489). "A showing that the evidence might have exonerated the
defendant is not enough." Id.
Key to this assignment of error is whether the Durango, before its inadvertent
release, was constitutionally material evidence or merely potentially useful. The State's
failure to preserve evidence that is only potentially useful does not violate a defendant's
right to due process unless the defendant can show the State acted in bad faith. Id. at 477
(citing Arizona v. Youngblood, 488 U.S. 51,58,109 S. Ct. 333,102 L. Ed. 2d 281
(1988)). "Potentially useful" evidence is "evidentiary material of which no more can be
said than that it could have been subjected to tests, the results of which might have
exonerated the defendant." Youngblood, 488 U.S. at 57. This difference in treatment
between potentially useful evidence and material exculpatory evidence "is rooted in part
on a general unwillingness of the courts to 'impos[e] on the police an undifferentiated
and absolute duty to retain and to preserve all material that might be of conceivable
evidentiary significance in a particular prosecution.'" State v. Johnston, 143 Wn. App. 1,
12, 177 P.3d 1127 (2007) (alteration in original) (internal quotation marks omitted)
(quoting Witten barger, 124 Wn.2d at 475). Whether the evidence is material and
exculpatory is a question of law we review de novo. State v. Burden, 104 Wn. App. 507,
512,17 P.3d 1211 (2001).
Beginning with the second part of the test for constitutional materiality, Ms. Lopez
was unable to obtain evidence for testing that was comparable to the Durango before its
inadvertent release. There is no better illustration of this than the State's objection to Ms.
Lopez's efforts to present the results of the 2011 diagnostic test, which the State
discredited based on the compromised chain of custody. No pictures were taken or
testing done while the Durango was in the bullpen, so no substitute existed for access to
the SUV itself. Lesser evidence was and remains available, as discussed in section III
No.30385-3-II1 State v. Lopez
below. But the seized Durango was the only piece of physical evidence that could have
decisively corroborated her claim that the seized SUV was her own.
The exculpatory value of the evidence was not apparent to the sheriffs
department, though. In light of Deputy Changala's application for a search warrant and
report, the sheriffs department reasonably believed that the evidence was inculpatory.
While other evidence calls into question the reliability of the deputy's report of the
Durango's VIN, one can only speculate whether diagnostic tests taken while the SUV
remained in the sheriffs custody would have supported the prosecution or Ms. Lopez.
The Durango was only potentially useful evidence.
Ms. Lopez bears the burden, then, of showing that the State acted in bad faith
when it released the Durango. The trial court found that the release of the Durango was
inadvertent, a finding that Ms. Lopez does not challenge on appeal-reasonably so, since
it was supported by substantial evidence. The trial court did not err in refusing to dismiss
the charges as a result of the sheriffs inadvertent release of the SUV.
II
Ms. Lopez next argues that her conviction must be reversed due to the State's
failure to present sufficient evidence that she ever possessed Mr. Munoz's Durango. It is
a dubious argument, since Deputy Changala's testimony alone, if believed by the jury,
established that Ms. Lopez's SUV was stripped, abandoned, and still green after she
claimed to have painted it black, while the Durango in her possession in January 2009
had the VIN for Mr. Munoz's Durango on the manufacturer's sticker on the door. Ms.
Lopez nonetheless argues that the evidence is fatally insufficient if the jury would have to
"selectively credit and discredit the State's evidence" to find for the State. Br. of
Appellant at 36.
Ms. Lopez's argument characterizes evidence that the State never encouraged the
jury to believe as "State's evidence." For example, she points to Deputy Changala's
report in January 2009 that the green Durango he searched had a brown interior. At trial,
however, the deputy explained, and the prosecutor later argued, that the deputy examined
the SUV at night, using a flashlight, and could have gotten the interior color wrong. Ms.
Lopez argues that Mr. Munoz and Marlin Workman (a DOL inspector) testified
inconsistently about the type of interior (leather or cloth) in the Durango with which they
were familiar. But from the point of view of the State's theory, the two men were talking
about different SUVs.
She finally argues that the jury's verdict required it to disbelieve Officer Perez's
testimony that his VIN check validated Ms. Lopez's ownership. We agree. But Officer
Perez admitted that he never prepared a report and never called in his ownership check
because it was a civil matter-the prosecutor made sure he established those facts in the
officer's direct examination. The State suggested to the jury in closing that Deputy
Changala's testimony was more reliable generally, because he had prepared reports. It
suggested that Mr. Munoz's recognition of his SUV in Ms. Lopez's possession in 2008
could be more reliable because he had owned it for two years. As the prosecutor argued,
Officer Perez might not have had the right license plate and was possibly wrong about the
VIN, but "[w]e'll never know because he didn't have a report to refer to. He had nothing
in writing." RP (Nov. 3,2011) at 337. Although the State called Officer Perez in the
prosecution case, it was free to suggest that the officer's recollection was not as reliable
as other evidence.) Cf ER 607 (supplanting the common law "voucher" rule by
providing that "[t]he credibility of a witness may be attacked by any party, including the
party calling the witness").
In reviewing a claim of insufficient evidence, we view the evidence in the light
most favorable to the State in order to determine whether any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. State v.
Brockob, 159 Wn.2d 311, 336, 150 P.3d 59 (2006). Credibility determinations are for the
fact finder and are not reviewable on appeal. Jd.
Viewing the evidence in the light most favorable to the State can include crediting
evidence selectively if a rational jury could credit it selectively-·and particularly if the
State asks the jury to credit it selectively. Similarly, accepting the fact finder's credibility
I By making the strategic choice to call Officer Perez, the prosecutor could establish the facts that arguably made the officer's recollection less reliable than other evidence and demonstrate, as he argued in closing, that the State had "nothing to hide" from the jury. RP (Nov. 3,2011) at 336.
detennination can include accepting its apparent determination that a particular witness is
generally credible, even if not good at distinguishing colors with a flashlight at night.
A rational jury could have viewed the evidence in the marmer urged by the State.
This jury evidently did. Its verdict is supported by substantial evidence.
III
Ms. Lopez next argues that the trial court's exclusion of evidence of events
occurring after January 2009 that bore on the reliability of Deputy Changala's report of
the Durangos ' VINs denied her constitutional right to present evidence in her defense.
After the diagnostic test revealed the Durango in the State's possession to be Ms.
Lopez's, the State moved for an order in limine excluding the test and all other evidence
of events occurring after the January 2009 search and seizure. The State argued it was
required to prove that Ms. Lopez was in possession of a stolen vehicle on the day the
Durango was seized; anything occurring after that day was irrelevant. The trial court
agreed, and articulated an additional basis on which to exclude the evidence: because the
State conceded that the SUV then in its possession belonged to Ms. Lopez, the diagnostic
test addressed an issue that was not in dispute.
The defendant in a criminal case has the constitutional right to present evidence in
his or her defense. State v. Hawkins, 157 Wn. App. 739, 750, 238 P.3d 1226 (2010)
(citing State v. Jones, 168 Wn .2d 713, 720, 230 P.3d 576 (2010)). The evidence must be
relevant; there is no constitutional right to have irrelevant evidence admitted. State v.
Lord, 161 Wn.2d 276, 294,165 P.3d 1251 (2007). A trial court's decision to exclude
evidence will be reversed only where the trial court has abused its discretion. Jd. A trial
court abuses its discretion when its decision is "manifestly unreasonable or exercised on
untenable grounds or for untenable reasons." Jd. at 283-84.
The threshold to admit relevant evidence is very low. State v. Darden, 145 Wn.2d
612,621,41 P.3d 1189 (2002). "Evidence tending to establish a party's theory, or to
qualify or disprove the testimony of an adversary, is always relevant and admissible."
State v. Harris, 97 Wn. App. 865, 872, 989 P.2d 553 (1999) (citing Lamborn v. Phillips
Pac. Chern. Co., 89 Wn.2d 701, 706, 575 P.2d 215 (1978)). If the evidence may have
caused the jury to reach a different conclusion, then excluding it would be an abuse of
discretion. State v. Cuthbert, 154 Wn. App. 318, 341,225 P.3d 407 (2010).
Ordinarily, evidence of events taking place years after the date a defendant is
alleged to have possessed stolen property would be irrelevant. But ordinarily, Ms. Lopez
would have had the opportunity to test Deputy Changala's testimony as to the VIN he
observed on the door of the seized Durango by arranging for independent examination of
the impounded SUV. Under the unique circumstances of this case, the best diagnostic
proof of ownership she can offer is of the seized Durango (she contends), tested
following its release. The object of the evidence is not to prove postseizure facts, it is to
demonstrate, from evidence examined postseizure, that the Durango seized in January
2009 was the Durango owned by Ms. Lopez.
17 No. 30385-3-III State v. Lopez
The evidence may well have caused the jury to reach a different conclusion.
To begin with, the exclusion of all post-January 2009 seizure evidence invited the
jury to regard Deputy Changala's testimony as to the VIN he observed on seizing the
allegedly stolen Durango as implicitly unchallenged. As far as the jury knew, the deputy
had placed the stolen SUV "in evidence," presumably available for testing. Some of the
last acts to which Deputy Changala testified were that he called a tow truck to impound
the locked black and red Durango; the tow truck driver was able to unlock the door so
that the deputy could read the VIN on the manufacturer's sticker; it proved to be the VIN
ending in 8028 associated with Mr. Munoz's Durango; and the deputy then ran the VIN
though DOL, which confirmed that it was, indeed, the VIN for the stolen Munoz SUV.
Critically, the very last act the deputy testified to was that after he confirmed that
the VIN was that of the stolen Munoz Durango, "I took the whole vehicle along with the
plates and the VIN plate on the dash that didn't belong to it. I took it to our bullpen at the
sheriffs office for evidence." RP (Nov. 2, 2011) at 166-67. Ms. Lopez's lawyer would
try to score defense points by establishing that the deputy took no photographs of the
SUV at that time but the State elicited the deputy's explanation why he did not need
photographs: "I took the whole vehicle and put it into our bullpen for evidence." Id. at
169. The State debunked defense questioning about why no crime lab work was done
when the SUV was seized on the same basis, asking the following questions and getting
the following responses from Deputy Changala:
18 No. 30385-3-III State v. Lopez
Q. And with the vehicle from January 18th, 2009, the 2001 black Durango, did you ever send that vehicle or any pieces of it, it sounds like, on that day to the crime lab? A. No. Q. Why didn't you do that? A. I had the whole vehicle with all the evidence taken to our bullpen at the sheriff s office for evidence. Q. Because it's in evidence, that's why you didn't send it to the crime lab? A. Right.
Id. at 201-02. With it having been established that the "whole vehicle" was "in
evidence," and no information that the Durango ever left the sheriffs bullpen, a rational
jury could (indeed, might well) conclude that it had been available for further
examination on Ms. Lopez's behalf. A rational jury might conclude that if the seized
Durango did not have the VIN as reported by Deputy Changala, it would have heard
about that from Ms. Lopez's lawyer. Understanding that the stolen SUV was "in
evidence" and available, the jury might have regarded the effort that Ms. Lopez did make
to discredit Deputy Changala as halfhearted.
Beyond that unintended but possible implication of excluding evidence of events
following the seizure, Ms. Lopez was deprived of evidence that could have affirmatively
helped her defense. The trial court correctly concluded that, standing alone, the
diagnostic evidence did not help one side or the other because both agreed it was a test of
the SUV that Ms. Lopez owned. But Ms. Lopez's foundation for admitting the test
result, if believed by the jury, would have revealed the relevance and importance of the
result. Although the record is incomplete as to all the evidence that was excluded, it
appears Ms. Lopez was prepared to lay a foundation that the Durango relocated and taken
into police custody in late 2010 or 2011 was the SUV seized from her possession as
stolen and that she could have presented evidence tracing the inadvertently released SUV
from the sheriffs department to Elite Towing, to Ms. Hawk, then to a man identified in
the record as Mike Hansen, then back to the sheriff, and ultimately to the examiner who
determined it to be Ms. Lopez's.
Before a physical object connected with the commission of a crime may be
properly admitted into evidence, it must be satisfactorily identified and shown to be in
substantially the same condition as when the crime was committed. State v. Campbell,
103 Wn.2d 1,21,691 P.2d 929 (1984). The proponent need not eliminate every
possibility of alteration or substitution. Id. A trial court is vested with wide discretion in
determining admissibility, see id., but here, by excluding all post-2009 evidence as
irrelevant, the trial court never heard the foundational evidence that Ms. Lopez claimed to
be able to offer.
The fact that the State bothered to take the Durango into its possession in late 2010
or 2011 and was concerned that release for testing might compromise the chain of
custody suggests that the State believed, at least at one point, that it could establish a
sufficient foundation to use it as evidence. Minor discrepancies or uncertainty in
identifying an object and showing its substantially consistent condition will affect only
the weight of evidence, not its admissibility. Jd. The jury is free to disregard evidence
from such an object if it finds that the object was not properly identified or there has been
a change in its character. Jd.
The trial court erred in granting the State's motion to exclude the evidence. In
fairness to the trial court, the results of the diagnostic test triggered a tectonic shift in the
State's posture toward post-January 2009 evidence; up to that point, the State had
planned to offer its own. It is clear from the record that everyone was struggling to
comprehend the implications of this transformation of an already complex trial landscape
and the arguments were not as well fleshed out in the trial court as they have become on
appeal. Nonetheless, Ms. Lopez knew the evidence was important and her objection was
sufficiently clear to preserve the error.
The error was not harmless, even under the "overwhelming untainted evidence'
test" applied to a similar claim of erroneous exclusion of evidence in Lord, 161 Wn.2d at
295. Under this test, if the untainted, admitted evidence is so overwhelming as to
necessarily lead to a finding of guilt, the error is harmless. But cf id. at 302 (Sanders, 1.,
dissenting) (an error depriving a defendant of his constitutional right to present evidence
relevant to his defense is not harmless unless" 'trivial, or formal, or merely academic,
and ... not prejudicial to the substantial rights of the party assigning it, and in no way
[affecting] the final outcome of the case'" (quoting State v. Britton, 27 Wn.2d 336,341,
178P.2d341 (1947))).
21 No. 30385-3-III State v. Lopez
The State emphasizes that the critical VINs were included in Deputy Changala's
reports, which were the product of routine, reliable police work undertaken with no
motive to lie. The evidence cannot be fairly characterized as overwhelming, however,
where there was viable evidence that conflicted with his routine reports. The diagnostic
test would have raised more questions.
The trial court abused its discretion by excluding the diagnostic test and other
relevant post-January 2009 evidence. The error was not harmless. We reverse the
judgment and sentence and remand for a new trial.
A majority of the panel has determined that 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.
Siddoway, A.C.J. V WE CONCUR:
I) Brown, J .
Kulik,1.