Filed Washington State Court of Appeals Division Two
March 26, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57664-3-II
Respondent,
v.
RYAN CHRISTOPHER FANCHER, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Ryan C. Fancher appeals his convictions for assault in the second degree
and retail theft in the third degree with special circumstances, contending that the witness’s pretrial
identification of him was impermissibly suggestive and not otherwise reliable. Fancher further
alleges he was denied effective assistance of counsel. We affirm Fancher’s convictions.
FACTS
Julian Brim was a customer at a home improvement store when he observed a man run out
the front door, pushing a shopping cart full of unpaid merchandise. He followed the man into the
parking lot and grabbed his cart Brim asked to see a receipt. The man told Brim to “f*** off” and
then pulled out a knife. Rep. of Proc. (RP) at 107. Brim was close enough to be able to describe
the knife as “retractable, composite handle, inexpensive.” RP at 107. He was just a couple of feet
away. The man made a stabbing motion toward Brim. Brim was afraid of being stabbed, so he
retreated to the store to call the police. The encounter lasted approximately 30 seconds.
Brim described the man to police as disheveled and unkempt, wearing a long-sleeved gray
shirt, gray baggy pants, and a Seattle Seahawks COVID face mask. Longview Police Officer Scott 57664-3-II
McDaniel1 responded to the scene and began looking for the suspect. He observed a man matching
the suspect’s description coming out of some trees near some railroad tracks. He was wearing a
Seahawks mask when McDaniel initially saw him but the suspect dropped the mask on the railroad
tracks.
Back at the store, Brim got in the back of a police vehicle and drove to McDaniel’s location.
Brim identified Fancher as the man from the store. As they drove away, Brim noticed merchandise
scattered under a tree.
The State charged Fancher with assault in the second degree and retail theft with special
circumstances2 in the third degree. Our record does not show a pretrial motion to exclude Brim’s
show-up identification of Fancher.
During trial, the State presented a surveillance video showing a man leaving the store with
a shopping cart of unpaid merchandise wearing a mask. Brim testified that the video was a true
representation of what happened on the day in question and that the Seahawks mask was distinctive
because there was no mask mandate at the time. He clarified that the mask stood out because,
while many individuals still wore medical masks, the man at the store was wearing a cloth logo
mask.
Brim further testified that when he was in the back of the police vehicle, Brim first
recognized Fancher as the man from the store when he was 50 feet away. When they got eight
feet away, Brim noticed the man was wearing the same clothes minus the Seahawks mask. Brim
told the officer that the man was the same individual he encountered back at the store. When asked
1 McDaniel retired prior to trial. 2 Under RCW 9A.56.360(1)(b), the special circumstance in this case was that Fancher “at the time of the theft, [was] in possession of an item, article, implement, or device used, under circumstances evincing an intent to use or employ, or designed to overcome security systems.”
2 57664-3-II
if he was certain, Brim testified, “Very certain.” RP at 111. There was no objection to this
testimony.
The identification occurred approximately 30 minutes after the incident. Brim testified
that as they drove away he noticed merchandise under a tree. The merchandise was approximately
30 feet from where he identified Fancher.
Longview Police Officer Jordan Sanders also testified for the State. He testified that he
responded to the incident report at the store and picked up Brim to take him to view the suspect.
Sanders testified that his identification procedure was to first ask the witness if he or she was
willing to identify the suspect, explain that they “may or may not” see the suspect, and then stress
that they are only viewing someone who may be involved in the crime. RP at 131. Sanders
testified that as they pulled up, Fancher was standing near other police officers and in handcuffs.
Brim then identified Fancher as the person he encountered in the store parking lot. Sanders
testified that the identification occurred less than 30 minutes from the time of the incident. There
was no objection to this testimony.
The jury found Fancher guilty as charged. He appeals.
ANALYSIS
I. OUT-OF-COURT IDENTIFICATION
For the first time on appeal, Fancher argues that Brim’s show-up identification of him was
obtained through an impermissibly suggestive procedure that was not reliable under the totality of
the circumstances. We hold this issue has not been preserved for appeal.
We may review an issue raised for the first time on appeal if it suggests a manifest error
affecting a constitutional right. RAP 2.5(a)(3). A party demonstrates manifest constitutional error
by showing that the issue affects their constitutional rights and that they suffered actual prejudice.
3 57664-3-II
State v. J.W.M., 1 Wn.3d 58, 91, 524 P.3d 596 (2023). To demonstrate actual prejudice, the
defendant must make a plausible showing that the claimed error had practical and identifiable
consequences in the trial. Id.
A. Constitutional Right
The due process clause of the Fourteenth Amendment to the United States Constitution
requires the exclusion of identifications that were “obtained by an unnecessarily suggestive police
procedure” and that lack “reliability under the totality of circumstances.” State v. Derri, 199
Wn.2d 658, 673, 511 P.3d 1267 (2022). Because Fancher raises an issue that implicates a
constitutional right, we evaluate the merits to determine whether there was a manifest error
affecting the constitutional right.
B. Manifest Error
Fancher must first establish that the identification procedure was “unnecessarily
suggestive” to establish a manifest error affecting a constitutional right. Id. at 673. Brim’s
identified Fancher during a show-up identification. A “[s]how-up identification is typical shortly
after a crime occurs when police show a suspect to a witness or victim.” State v. Birch, 151 Wn.
App. 504, 513, 213 P.3d 63 (2009). Show-up identifications are “not per se impermissibly
suggestive,” rather, the defendant must demonstrate “that the procedure was unnecessarily
suggestive.” State v. Guzman-Cuellar, 47 Wn. App. 326, 335, 734 P.2d 966 (1987). To meet due
process requirements, an out-of-court identification must not be “so impermissibly suggestive as
to give rise to a substantial likelihood of irreparable misidentification.” State v. Vickers, 148
Wn.2d 91, 118, 59 P.3d 58 (2002). If the defendant fails to make this showing, the inquiry ends.
Derri, 199 Wn.2d at 674.
4 57664-3-II
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Filed Washington State Court of Appeals Division Two
March 26, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57664-3-II
Respondent,
v.
RYAN CHRISTOPHER FANCHER, UNPUBLISHED OPINION
Appellant.
VELJACIC, J. — Ryan C. Fancher appeals his convictions for assault in the second degree
and retail theft in the third degree with special circumstances, contending that the witness’s pretrial
identification of him was impermissibly suggestive and not otherwise reliable. Fancher further
alleges he was denied effective assistance of counsel. We affirm Fancher’s convictions.
FACTS
Julian Brim was a customer at a home improvement store when he observed a man run out
the front door, pushing a shopping cart full of unpaid merchandise. He followed the man into the
parking lot and grabbed his cart Brim asked to see a receipt. The man told Brim to “f*** off” and
then pulled out a knife. Rep. of Proc. (RP) at 107. Brim was close enough to be able to describe
the knife as “retractable, composite handle, inexpensive.” RP at 107. He was just a couple of feet
away. The man made a stabbing motion toward Brim. Brim was afraid of being stabbed, so he
retreated to the store to call the police. The encounter lasted approximately 30 seconds.
Brim described the man to police as disheveled and unkempt, wearing a long-sleeved gray
shirt, gray baggy pants, and a Seattle Seahawks COVID face mask. Longview Police Officer Scott 57664-3-II
McDaniel1 responded to the scene and began looking for the suspect. He observed a man matching
the suspect’s description coming out of some trees near some railroad tracks. He was wearing a
Seahawks mask when McDaniel initially saw him but the suspect dropped the mask on the railroad
tracks.
Back at the store, Brim got in the back of a police vehicle and drove to McDaniel’s location.
Brim identified Fancher as the man from the store. As they drove away, Brim noticed merchandise
scattered under a tree.
The State charged Fancher with assault in the second degree and retail theft with special
circumstances2 in the third degree. Our record does not show a pretrial motion to exclude Brim’s
show-up identification of Fancher.
During trial, the State presented a surveillance video showing a man leaving the store with
a shopping cart of unpaid merchandise wearing a mask. Brim testified that the video was a true
representation of what happened on the day in question and that the Seahawks mask was distinctive
because there was no mask mandate at the time. He clarified that the mask stood out because,
while many individuals still wore medical masks, the man at the store was wearing a cloth logo
mask.
Brim further testified that when he was in the back of the police vehicle, Brim first
recognized Fancher as the man from the store when he was 50 feet away. When they got eight
feet away, Brim noticed the man was wearing the same clothes minus the Seahawks mask. Brim
told the officer that the man was the same individual he encountered back at the store. When asked
1 McDaniel retired prior to trial. 2 Under RCW 9A.56.360(1)(b), the special circumstance in this case was that Fancher “at the time of the theft, [was] in possession of an item, article, implement, or device used, under circumstances evincing an intent to use or employ, or designed to overcome security systems.”
2 57664-3-II
if he was certain, Brim testified, “Very certain.” RP at 111. There was no objection to this
testimony.
The identification occurred approximately 30 minutes after the incident. Brim testified
that as they drove away he noticed merchandise under a tree. The merchandise was approximately
30 feet from where he identified Fancher.
Longview Police Officer Jordan Sanders also testified for the State. He testified that he
responded to the incident report at the store and picked up Brim to take him to view the suspect.
Sanders testified that his identification procedure was to first ask the witness if he or she was
willing to identify the suspect, explain that they “may or may not” see the suspect, and then stress
that they are only viewing someone who may be involved in the crime. RP at 131. Sanders
testified that as they pulled up, Fancher was standing near other police officers and in handcuffs.
Brim then identified Fancher as the person he encountered in the store parking lot. Sanders
testified that the identification occurred less than 30 minutes from the time of the incident. There
was no objection to this testimony.
The jury found Fancher guilty as charged. He appeals.
ANALYSIS
I. OUT-OF-COURT IDENTIFICATION
For the first time on appeal, Fancher argues that Brim’s show-up identification of him was
obtained through an impermissibly suggestive procedure that was not reliable under the totality of
the circumstances. We hold this issue has not been preserved for appeal.
We may review an issue raised for the first time on appeal if it suggests a manifest error
affecting a constitutional right. RAP 2.5(a)(3). A party demonstrates manifest constitutional error
by showing that the issue affects their constitutional rights and that they suffered actual prejudice.
3 57664-3-II
State v. J.W.M., 1 Wn.3d 58, 91, 524 P.3d 596 (2023). To demonstrate actual prejudice, the
defendant must make a plausible showing that the claimed error had practical and identifiable
consequences in the trial. Id.
A. Constitutional Right
The due process clause of the Fourteenth Amendment to the United States Constitution
requires the exclusion of identifications that were “obtained by an unnecessarily suggestive police
procedure” and that lack “reliability under the totality of circumstances.” State v. Derri, 199
Wn.2d 658, 673, 511 P.3d 1267 (2022). Because Fancher raises an issue that implicates a
constitutional right, we evaluate the merits to determine whether there was a manifest error
affecting the constitutional right.
B. Manifest Error
Fancher must first establish that the identification procedure was “unnecessarily
suggestive” to establish a manifest error affecting a constitutional right. Id. at 673. Brim’s
identified Fancher during a show-up identification. A “[s]how-up identification is typical shortly
after a crime occurs when police show a suspect to a witness or victim.” State v. Birch, 151 Wn.
App. 504, 513, 213 P.3d 63 (2009). Show-up identifications are “not per se impermissibly
suggestive,” rather, the defendant must demonstrate “that the procedure was unnecessarily
suggestive.” State v. Guzman-Cuellar, 47 Wn. App. 326, 335, 734 P.2d 966 (1987). To meet due
process requirements, an out-of-court identification must not be “so impermissibly suggestive as
to give rise to a substantial likelihood of irreparable misidentification.” State v. Vickers, 148
Wn.2d 91, 118, 59 P.3d 58 (2002). If the defendant fails to make this showing, the inquiry ends.
Derri, 199 Wn.2d at 674.
4 57664-3-II
In Guzman-Cuellar, police located a shooting suspect and escorted him back to the tavern
where the shooting took place for a show-up identification. 47 Wn. App. at 333. This took place
“less than 1 hour” after the shooting. Id. Witnesses at the tavern identified Guzman-Cuellar as
the shooter. Id. at 329. At the time, he was handcuffed and standing approximately 15 feet from
a police car. Id. at 336. A jury later found Guzman-Cuellar guilty of murder in the first degree.
Id. at 330. On appeal, Division One of this court affirmed, holding that the show-up identification
was not impermissibly suggestive. Id. at 336.
Here, McDaniel responded to the scene and began looking for the suspect. He observed a
man matching the suspect’s description coming out of some trees. Back at the store, Sanders
picked up Brim and drove him to McDaniel’s location. Sanders testified that he explained that
they “may or may not” see the suspect, and stressed that they were only viewing someone who
may be involved in the crime. RP at 131. Brim testified that from 50 feet away he knew it was
the man from the parking lot. Fancher was standing next to police officers and handcuffed (it is
unclear from our record if Brim noticed the handcuffs when he first identified him). The
identification occurred approximately 30 minutes after the incident. Here, like in Guzman-Cueller,
the show-up identification was held shortly after the crimes were committed and in the course of
a prompt search for the suspect. We conclude that based on our facts, the identification was not
impermissibly suggestive. Our inquiry ends here. Derri, 199 Wn.2d at 674.
Fancher fails to establish a manifest constitutional error. Accordingly, this issue is not
preserved for review.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Fancher next argues that he was denied effective assistance of counsel for defense
counsel’s failure to move to suppress the show-up identification. We disagree.
5 57664-3-II
Ineffective assistance of counsel claims arise from the Sixth Amendment to the United
States Constitution and article I, section 22 of the Washington Constitution. State v. Vazquez, 198
Wn.2d 239, 247, 494 P.3d 424 (2021). To prevail on an ineffective assistance claim, the defendant
must show both that (1) defense counsel’s representation was deficient and (2) the deficient
representation prejudiced the defendant. Id. at 247-48.
Representation is deficient if, after considering all the circumstances, it falls below an
objective standard of reasonableness. Id. Prejudice exists if there is a reasonable probability that,
but for counsel’s errors, the result of the proceeding would have differed. Id. at 248. We apply a
strong presumption that defense counsel’s performance was reasonable. Id. at 247. Where the
defendant’s ineffective assistance claim is based on trial counsel’s failure to challenge the
admissibility of evidence, the defendant must show the absence of a legitimate strategic or tactical
reason for not objecting, the likelihood that the objection would have been sustained, and a
different outcome at trial had the evidence not been admitted. Id. at 248-49.
We can conceive of a legitimate reason for counsel choosing not to object to the show-up
identification. Counsel could have concluded, as we do, that there appears little likelihood such
an objection would have been successful. Moreover, Fancher’s ineffective assistance of counsel
claim fails because he cannot show that the outcome of the trial court would have been any
different.
Here, Brim was only a couple of feet away from Fancher when the confrontation occurred
and was able to describe Fancher to police including details about his clothes and the Seahawks
mask he was wearing. McDaniel responded to the scene and observed Fancher coming out of
some trees near some railroad tracks. He was wearing a Seahawks mask when McDaniel initially
saw him but he dropped the mask on the railroad tracks. Brim testified that as they drove away he
6 57664-3-II
noticed merchandise under a tree. The stolen merchandise was approximately 30 feet from where
he identified Fancher.
Based on the above, Fancher fails to show there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have differed. Therefore, Fancher cannot show
he was prejudiced by counsel’s performance. Without this showing, Fancher fails to show he
received ineffective assistance of counsel.
CONCLUSION
Fancher failed to preserve for review his challenge to the show-up identification. And he
fails to show he was denied effective assistance of counsel for counsel’s decision not to object to
the identification. For these reasons, we affirm Fancher’s convictions for assault in the second
degree and retail theft in the third degree with special circumstances.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Veljacic, J.
We concur:
Maxa, P.J.
Che, J.