State Of Washington v. Eric Umusaga Pulega ( 2014 )


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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                        co   o^
    03   5?~or~
    STATE OF WASHINGTON,                             No. 69439-1-1                      ^    53E
    Respondent,              DIVISION ONE                       V? 3^
    v.
    UNPUBLISHED OPINION
    ERIC UMUSAGA PULEGA,
    Appellant.               FILED: February 3, 2014
    Schindler, J. —A jury convicted Eric Umusaga Pulega of robbery in the second
    degree. Pulega seeks reversal on the grounds that the identification procedure violated
    due process. In the alternative, Pulega argues the court abused its discretion in
    admitting the 911 call and a patrol car video of his detention, as well as overruling
    objections to the testimony of Officer Shawn Hilton. We affirm.
    FACTS
    At approximately 7:30 a.m. on a sunny Saturday morning on April 21, 2012, Neil
    Spencer went to the Chase Bank located at the corner of Fifth Avenue and Union Street
    to use the automated teller machine (ATM). There are two ATMs located inside a small
    glassed-in vestibule at the Bank. Spencer entered the vestibule at 7:39 a.m. As he
    walked up to the ATM nearest to the windows, a man, later identified as Eric Umusaga
    Pulega, walked up to the other ATM. Spencer inserted his debit card into the ATM and
    No. 69439-1-1/2
    entered his pin number to obtain the balance in his account. After looking at the
    balance, Spencer put the receipt in his pocket. As he was doing so, Spencer looked
    over and noticed Pulega was having trouble using the ATM with his EBT card.1
    Spencer then reinserted his card in the ATM to obtain $20 from his account. Before
    Spencer could retrieve the $20, Pulega knocked him to ground, grabbed the $20 bill
    from the ATM, and ran outside. Spencer got up and chased Pulega around the block
    and through the lobby of the Red Lion Hotel.
    At 7:41 a.m., a woman who saw what happened from across the street called
    911 to report the robbery at the Bank. The woman, Helen Johnsen, described Pulega
    as an African American male, "very . . . slight in stature, probably around 5 foot 6," and
    "probably in his early twenties with long, black frizzy hair, tied in a ponytail, and a
    mustache." Johnsen said the man was wearing a black shirt or jacket and "brownish-
    black sweatpants."
    After losing sight of Pulega at the Red Lion Hotel, Spencer ran back to the Bank
    and used his cell phone to call 911 at approximately 7:42 a.m. Spencer told the 911
    operator that he was "just robbed" while withdrawing money from the ATM at the Chase
    Bank located at Fifth and Union. Spencer said he chased the man into the Red Lion
    Hotel but lost sight of him. Spencer described the man as either "black or Hispanic,"
    "kind of skinny," in his twenties with "a kinky hairdo," and wearing all black clothing.
    Several Seattle Police Department officers responded to the 911 calls. Officer
    Renee Miller was on First Avenue near Stewart Street when she received information
    about the robbery and a description of the suspect. Officer Miller decided to drive to
    1An electronic benefits transfer (EBT) card allows ATM cash withdrawals to purchase groceries.
    2
    No. 69439-1-1/3
    Third Avenue "to see if the suspect had gone south" after leaving the Red Lion. Officer
    Miller saw a male in the middle of the block between Pike Street and Union Street "that
    matched the description [of the suspect]." The man "appeared to be black or Hispanic,
    in his 20s, with kinky hair pulled into a 'frizzy' ponytail, and was wearing black clothing."
    Officer Miller followed the man as he "walked briskly northbound on Third Avenue
    towards Pike Street, crossed Pike Street to meet with three other males, walked
    eastbound on Pike Street, and then north on Fourth Avenue."
    Meanwhile, Officer Michael McDonald drove to the Chase Bank at Fifth and
    Union. When he arrived at the Bank, Spencer "flagged" him down. Officer McDonald
    described Spencer as slight, approximately six feet tall, and wearing eyeglasses.
    Officer McDonald said that Spencer was somewhat "out of breath, very excited," and his
    left ear was bleeding. Officer McDonald "asked him real quick what happened." As he
    was talking to Spencer, Officer McDonald "heard a broadcast over the ... radio that
    Officer Miller... had spotted a possible suspect in the area." Officer McDonald asked
    Spencer "if he would be able to identify this guy if we were able to stop and ... detain
    anybody who was possibly involved." Spencer told Officer McDonald, "Yeah, Ican
    identify him." Before leaving, Officer McDonald took a photograph of Spencer and
    retrieved the withdrawal receipt from the ATM.
    When Officer McDonald reached Fourth Avenue, he saw Officer Miller's patrol
    car, and heard Officer Miller identify "a suspect on the west sidewalk." Officer
    McDonald "thought that [Officer] Miller was referring to a person walking behind
    Pulega." Spencer was "very adamant, 'No, that's not him.'"
    No. 69439-1-1/4
    Officer Miller then looked over at Officer McDonald and "raised her arms and
    shrugged her shoulders, giving [Officer] McDonald a puzzled look." Officer McDonald
    "interpreted this to mean that [Officer] Miller was confused about the lack of
    identification of Pulega." Officer McDonald testified,
    Well, you know, we had - you know, I'd been working with [Officer Miller]
    a lot - a lot of years. She just looked at me like - like - you know, kind of
    gave me that puzzled look like - because she was - she was -- Officer
    Miller at that time, the person she was following, she was adamant that
    she - pretty sure she had the right suspect.
    Officer Miller "then pointed westbound down Pine Street, in the direction of where
    Pulega was walking." Officer McDonald then drove down the block and asked Spencer,
    " 'Is that the guy up there?'" Spencer said," 'No, I -- well, that guy's too far away.'"
    When Officer McDonald turned the corner to get closer, Spencer "yelled, unprompted,
    That's him,' or That's the guy.'"
    Pulega made a "quick turn into the Westlake bus tunnel on Pine Street." Officer
    McDonald parked the patrol car and followed him into the bus tunnel. Officer McDonald
    detained Pulega in the bus tunnel at 7:50 a.m. Other officers later detained and
    searched Pulega in front of Officer McDonald's patrol car. "Pulega repeatedly yelled at
    a woman he called 'Kylie,' saying loudly that the officers were asking about the $20 that
    she gave him and asking her to collect the $20." The woman told Officer Miller that she
    did not give Pulega $20. During the search of Pulega, the police found a single $20 bill
    and an EBT card. Spencer confirmed Pulega was the person who robbed him.
    On April 24, the State charged Pulega with robbery in the second degree. The
    State filed an amended information charging Pulega with robbery in the first degree.
    Pulega pleaded not guilty and filed a motion to suppress, arguing the police did not
    No. 69439-1-1/5
    have reasonable suspicion to stop or seize him. Pulega also argued the identification
    procedure was impermissibly suggestive and violated due process.
    Officer McDonald and Officer Miller testified at the 3.6 hearing. The court denied
    the motion to suppress. The court ruled the police had reasonable suspicion to stop
    and seize Pulega:
    [T]he officers had more than reasonable suspicion to detain Pulega, and in
    fact, had probable cause to arrest him for the crime of robbery in the first
    or second degree.... The officers had reasonable suspicion and probable
    cause based on the totality of the circumstances.
    The court also ruled there was no "unreasonable or any unlawful taint on the part of law
    enforcement that created a suggestibility to the eye witness/victim as to his identification
    of Mr. Pulega." The court entered extensive written findings of fact and conclusions of
    law.
    During the four-day jury trial, the State called a number of witnesses to testify
    including Spencer, Officer McDonald, Officer Miller, and the other officers involved in
    the detention and arrest of Pulega. The court admitted into evidence two videotapes
    from Chase Bank. The videotape recordings are from two different angles. One
    camera is pointed at the two ATMs and the other camera is from a side angle in the
    vestibule. The court also admitted the 911 call from Spencer, a videotape from the
    surveillance camera at the Red Lion Hotel, a patrol car video showing the location of
    Officer Miller's and Officer McDonald's patrol car on Pine Street, and a patrol car video
    of the detention and search of Pulega.
    The videotapes from the Bank show Pulega enter the vestibule at 7:34 a.m. and
    then leave approximately 30 seconds later. Pulega's dark frizzy hair is pulled back into
    a low ponytail and he is wearing dark clothing and a light-colored sparkly belt. Pulega
    No. 69439-1-1/6
    enters the vestibule again at 7:37 a.m. and stands to the left of the ATM closest to the
    window, out of view of the camera. Spencer enters the vestibule two minutes later at
    7:39 a.m. As Spencer walks up to the ATM near the window, Pulega comes back into
    view and walks up to the other ATM. One of the videotapes show Spencer looking at
    Pulega as he walks over to the ATM next to him, and looking over at Pulega again
    about a minute later when Pulega appears to be having trouble with the ATM. The
    videotapes also show Pulega glancing over at Spencer several times.
    After Spencer withdraws $20 from the ATM, the videotapes show Pulega
    suddenly rushing at Spencer, knocking him to the ground, grabbing the money from the
    ATM, and running outside. A few seconds later, Spencer gets up and runs out of the
    vestibule.
    Spencer testified that when he was next to Pulega, he saw Pulega's "face[,] his
    clothes[,] his hair." Spencer said that Pulega "sucker-punched" him "into [his] left ear,"
    knocked him to the ground, took the $20 bill, and ran out of the vestibule. On cross-
    examination, Spencer testified that the prosecutor showed him the Chase BankATM
    videotapes "several times [at] different angles."
    The defense introduced into evidence a number of still photographs from the
    Bank videotapes but did not call any witnesses to testify at trial. At the request of the
    defense, the court instructed the jury on the lesser-included crimes of robbery in the
    second degree and theft in the third degree.
    In closing argument, the defense attorney told the jury Pulega was "guilty of a
    theft [in the third degree], and he's prepared to accept the consequences for that," but
    argued Pulega was not guilty of robbery. The defense argued Pulega "simply reach[ed]
    6
    No. 69439-1-1/7
    over to grab the money ... when Mr. Spencer unexpectedly stumbled" and fell, hitting
    his head on the edge of the ATM. The defense relied on the still photographs from the
    Bank videotapes to support the argument that Pulega did not use threats or force to
    obtain the $20 and did not inflict bodily harm on Spencer:
    I would submit that we should look at these [photographs] for a few
    different things. One is look where Mr. Spencer's arm is here. It's around
    the corner on the edge of the casing of the machine, for lack of a better
    word.
    When you look at [Exhibit] No. 46 - that was 42 - look where his
    head is. His head is on the edge of the casing above the ATM.
    Exhibit 25, look at the line here of where the injuries are. Ask
    yourself, "Did Mr. Spencer fall into the edge of the machine casing and hit
    his head there?" I'd submit that these pictures say that he did.
    Again, you can still see my client's hand, his left hand, and I know
    the prosecutor's trying to say that you can tell with certainty that my
    client's hand is in contact with Mr. Spencer, but Mr. Spencer told you he
    was not hit on his right-hand side. He was not pushed or shoved. There
    was no testimony of that nature.
    I mean, certainly Mr. Spencer - other than the fact that Mr.
    Spencer says that there was no sort of threats or words or exchanges.
    There was no, you know, telling him to stay down, anything like that.
    There was nothing, no words exchanged. Certainly these pictures don't
    show any contact.
    I think the last set is comparisons of that two- to three-second time
    period. In [Exhibit] 44 you don't see Mr. Spencer. I'd submit that he's
    down below the level of the - of the picture at that point, because you do
    see him over here. You can see again my client's left hand with
    something white or light-colored in it. He's leaving. My client committed a
    theft that day, pure and simple.
    So when you look at these pictures and when you look at the
    videos, as you have several times during the course of this trial, and you
    talk about these things, ask yourself, did you see him step behind Mr.
    Spencer? Did you see him strike Mr. Spencer? And did you see those
    things beyond a reasonable doubt? Or did he simply reach over to grab
    the money and plan to split when Mr. Spencer unexpectedly stumbled, fell,
    jerked his body, and fell to the left, not the right, even though that's what
    he testified to, and hitting his head on the left side edge of the case -- the
    cash machine casing and falling to the left towards the grate and onto his
    back.
    No. 69439-1-1/8
    The jury found Pulega guilty of the lesser-included offense of robbery in the
    second degree. The court imposed a standard-range sentence of 13 months.
    ANALYSIS
    Eyewitness Identification
    Pulega asserts the court erred in concluding the identification procedure was not
    impermissibly suggestive or tainted by police conduct. The court's conclusions of law
    state, in pertinent part:
    2.      The officers had reasonable suspicion and probable cause based
    on the totality of the circumstances. First, Pulega generally
    matched the suspect description on the 911 calls. Second, Pulega
    was found only a few blocks from the robbery scene only eight
    minutes after the robbery. Third, the victim Neil Spencer,
    unprompted, identified Pulega as the robber when Spencer was
    sitting in the back of McDonald's patrol car and before Pulega was
    detained by the police.
    3.      The court also concludes that there was no impermissibly
    suggestive identification procedure regarding Spencer's
    identification of Pulega. Spencer spontaneously said, "That's the
    guy" or "That's him" when he saw Pulega on the sidewalk after
    Officer McDonald turned left on Pine Street. Spencer's
    identification of Pulega was certain and was not even in response
    to a question. Moreover, the court concludes that Spencer's
    identification was not tainted by any conduct of Officer Miller or
    Officer McDonald prior to the identification.
    We review the decision to deny a motion to suppress to determine whether the
    findings are supported by substantial evidence and whether those findings, in turn,
    support the conclusions of law. State v. Ross, 
    106 Wash. App. 876
    , 880, 
    26 P.3d 298
    (2001). Evidence is substantial if it is sufficient to persuade a fair-minded, rational
    person of the truth of the finding. State v. Lew, 
    156 Wash. 2d 709
    , 733, 
    132 P.3d 1076
    (2006). Where the findings are not challenged, we treat the findings offact as verities
    8
    No. 69439-1-1/9
    on appeal and review the conclusions of law de novo. State v. O'Neill, 
    148 Wash. 2d 564
    ,
    571, 
    62 P.3d 489
     (2003); State v. Johnson. 
    128 Wash. 2d 431
    , 443, 
    909 P.2d 293
     (1996).
    An out-of-court identification procedure meets the requirements of due process if
    it is not so impermissibly suggestive as to give rise to the substantial likelihood of
    irreparable misidentification. State v. Vickers. 
    148 Wash. 2d 91
    , 118, 
    59 P.3d 58
     (2002).
    To establish a due process violation, the defendant must first show the identification
    procedure is impermissibly suggestive. Vickers. 148 Wn.2d at 118. Due process is
    implicated "only when law enforcement officers use an identification procedure that is
    both suggestive and unnecessary." Perry v. New Hampshire. 
    132 S. Ct. 716
    , 724,181
    L Ed. 2d 694 (2012).
    Ifthe defendant fails to show the identification procedure is suggestive, the
    inquiry ends. Vickers. 148 Wn.2d at 118; Perry, 132 S. Ct. at 721.
    When no improper law enforcement activity is involved,... itsuffices to
    test reliability through the rights and opportunities generally designed for
    that purpose, notably, the presence of counsel at postindictment lineups,
    vigorous cross-examination, protective rules of evidence, and jury
    instructions on both the fallibility of eyewitness identification and the
    requirement that guilt be proved beyond a reasonable doubt.
    Perry. 132 S. Ct. at 721.
    If the defendant proves the identification procedure was suggestive, the court
    must determine whether, considering the totality of the circumstances, the
    suggestiveness created a substantial likelihood of irreparable misidentification. Vickers.
    148Wn.2dat118.
    Even when the police use such a procedure,... suppression of the
    resulting identification is not the inevitable consequence.... Instead of
    No. 69439-1-1/10
    mandating a perse exclusionary rule,... the Due Process Clause
    requires courts to assess, on a case-by-case basis, whether improper
    police conduct created a "substantial likelihood of misidentification."
    Perry. 132 S. Ct. at 724 (quoting Neil v. Biqqers. 
    409 U.S. 188
    , 201, 
    93 S. Ct. 375
    , 34 L.
    Ed. 2d 401 (1972)). The Supreme Court in Biqqers identified the factors the court
    considers in determining whether there was a substantial likelihood of misidentification.
    Biqqers. 409 U.S. at 199-200. The Biqqers factors include (1) the opportunity of the
    witness to view the criminal at the time of the crime, (2) the witness' degree of attention,
    (3) the accuracy of his prior description of the criminal, (4) the level of certainty
    demonstrated at the confrontation, (5) and the time between the crime and the
    confrontation. Biqqers. 409 U.S. at 199-200: see also Manson v. Brathwaite. 
    432 U.S. 98
    , 114, 
    97 S. Ct. 2243
    , 
    53 L. Ed. 2d 140
     (1977).
    Pulega argues the record establishes the show-up identification procedure was
    impermissibly suggestive because the police pointed out Pulega to Spencer. The State
    contends the police did not use a show-up identification procedure and substantial
    evidence supports the conclusion that the identification procedure was not
    impermissibly suggestive.
    The unchallenged findings of fact support the conclusion that there was no
    impermissibly suggestive identification procedure and that Spencer "yelled,
    unprompted, That's him.'" Further, the case Pulega cites, State v. McDonald. 40 Wn.
    App. 743, 
    700 P.2d 327
     (1985), is distinguishable. In McDonald, police officers told a
    victim during a lineup which person had been arrested for the crime. McDonald. 40 Wn.
    App. at 744.
    10
    No. 69439-1-1/11
    The unchallenged written findings of fact state, in pertinent part:
    (6) Communicating with Officer Miller, [Officer] McDonald was
    advised that Pulega was walking northbound on Fourth Avenue, just a
    block and [a] half away from the crime scene. [Officer] McDonald followed
    [Officer] Miller's patrol car while traveling in the lane of traffic three lanes
    away from the west sidewalk (Fourth Avenue is a one-way northbound
    four-lane road). Hearing [Officer] Miller refer to a suspect on the west
    sidewalk, [Officer] McDonald thought that [Officer] Miller was referring to a
    person walking behind Pulega. Spencer said that this person (who was
    not Pulega) was not the person who robbed him.
    (7) After Spencer did not make a positive identification of the
    person walking behind Pulega, [Officer] McDonald pulled alongside
    [Officer] Miller's car and looked at her. [Officer] Miller raised her arms and
    shrugged her shoulders, giving [Officer] McDonald a puzzled look.
    [Officer] McDonald interpreted this to mean that [Officer] Miller was
    confused about the lack of identification of Pulega. [Officer] Miller then
    pointed westbound down Pine Street, in the direction of where Pulega was
    walking. [Officer] McDonald turned the corner westbound on Pine Street,
    and saw Pulega walking briskly towards the bus tunnel. As they pulled
    closer to Pulega, Spencer looked at Pulega and yelled, unprompted,
    "That's him," or "That's the guy."
    (8) Pulega made a quick turn into the Westlake bus tunnel on Pine
    Street as [Officer] McDonald drove past him. [Officer] McDonald
    contacted Pulega in the bus tunnel, seizing Pulega and detaining him at
    the front of his patrol car. At this time, Spencer affirmed that Pulega was
    the robber.
    Officer McDonald testified that when he asked Spencer whether the person
    walking behind Pulega robbed him, Spencer told him unequivocally that "this person .. .
    was not the person who robbed him." Officer McDonald testified that after he pulled up
    alongside Officer Miller's patrol car, Officer Miller looked over at Officer McDonald with a
    puzzled expression, shrugged her shoulders, and "pointed westbound down Pine
    Street, in the direction of where Pulega was walking."
    11
    No. 69439-1-1/12
    Because the unchallenged findings of fact and record support the court's
    conclusion that the police identification procedure was not impermissibly suggestive, we
    do not consider the Biqqers factors.2
    Evidentiary Rulings
    In the alternative, Pulega contends he is entitled to a new trial because the court
    erred in (1) admitting the 911 call from Spencer, (2) admitting the patrol car video that
    shows the detention and search of Pulega, and (3) overruling his objections to the
    prejudicial testimony of Officer Shawn Hilton.
    We review decisions on the admissibility of evidence under an abuse of
    discretion standard. State v. Stenson. 
    132 Wash. 2d 668
    , 701, 
    940 P.2d 1239
     (1997). An
    abuse of discretion exists "[w]hen a trial court's exercise of its discretion is manifestly
    unreasonable or based upon untenable grounds or reasons." Stenson. 132 Wn.2d at
    701. A discretionary decision "is based 'on untenable grounds' or made 'for untenable
    reasons' if it rests on facts unsupported in the record or was reached by applying the
    wrong legal standard." State v. Rohrich. 
    149 Wash. 2d 647
    , 654, 
    71 P.3d 638
     (2003).
    1. 911 Call
    Pulega contends the court erred in admitting the 911 call as an excited utterance
    under ER 803(a)(2). Pulega asserts Spencer was not under the influence of a startling
    event at the time of the call. The State contends Spencer was still" 'under the stress or
    excitement'" when he made the 911 call to report the assault and robbery.
    Under ER 803(a)(2), a statement is not excluded as hearsay if it is an excited
    utterance "relating to a startling event or condition made while the declarant was under
    2Accordingly, we also do not considercross-racial identification.
    12
    No. 69439-1-1/13
    the stress of excitement caused by the event or condition." The proponent of the
    admission of an excited utterance must satisfy three " 'closely connected
    requirements'": (1) that a startling event or condition occurred, (2) the declarant made
    the statement while under the stress of excitement of the startling event or condition,
    and (3) the statement related to the startling event or condition. State v. Young. 
    160 Wash. 2d 799
    , 806, 
    161 P.3d 967
     (2007) (quoting State v. Woods. 
    143 Wash. 2d 561
    , 597, 
    23 P.3d 1046
     (2001)). The critical determination "is 'whether the statement was made
    while the declarant was still under the influence of the event to the extent that [the]
    statement could not be the result of fabrication, intervening actions, or the exercise of
    choice or judgment.'" State v. Brown. 
    127 Wash. 2d 749
    , 758, 
    903 P.2d 459
     (1995)3
    (quoting State v. Strauss. 
    119 Wash. 2d 401
    , 416, 
    832 P.2d 78
     (1992)).
    The court found that when Spencer called 911a "very few minutes" after the
    robbery, he was "under the stress ofexcitement caused by the event."4 ER 803(a)(2).
    The court ruled, in pertinent part:
    In this instance the Court finds that it was more likely than not a
    matter of very few minutes after the alleged incident occurred that Mr.
    Spencer. .. made the 911 call, that the alleged assault and taking of Mr.
    Spencer's money qualifies as a startling event, and that Mr. Spencer's
    calling 911 was a cry for help and statements made were subject to his
    reacting to the startling event to qualify for the excited utterance exception
    to the hearsay rule, and therefore, the 911 call is admissible.
    The record supports the court's findings. The robbery occurred at 7:40 a.m.
    Spencer chased Pulega around the block and through the Red Lion Hotel lobby for
    approximately two minutes before losing sight of him. Spencer called 911 at 7:42 or
    3(Alteration in original.)
    4The robbery occurred at 7:40 a.m. and Spencer called 911 at approximately 7:42 a.m.
    13
    No. 69439-1-1/14
    7:43 a.m. to report the robbery and get help. The court did not abuse its discretion in
    concluding Spencer was still under the stress of the robbery when he called 911.
    Even if error, the decision to admit the 911 call as an excited utterance
    constitutes harmless error. An error is " 'not prejudicial unless, within reasonable
    probabilities, the outcome of the trial would have been materially affected had the error
    not occurred.'" State v. Bourgeois. 
    133 Wash. 2d 389
    , 403, 
    945 P.2d 1120
     (1997)
    (quoting State v. Tharp. 
    96 Wash. 2d 591
    , 599, 
    637 P.2d 961
     (1981)). "The improper
    admission of evidence constitutes harmless error if the evidence is of minor significance
    in reference to the overall, overwhelming evidence as a whole." Bourgeois. 133 Wn.2d
    at 403.
    Here, the admission of the 911 call was of minor significance. During closing
    argument, Pulega did not contest that he took the $20 from Spencer at the ATM.
    Instead, Pulega argued that he did not take the money by force and the injuries Spencer
    suffered were the result of Spencer hitting his head on the side of the ATM.
    2. Patrol Car Video
    Pulega argues the court abused its discretion by admitting the patrol car video of
    the police detention and search of Pulega. Pulega asserts the prejudice outweighed the
    minimal relevance of showing Pulega being restrained and searched by police. Below,
    the defense argued the video was improper character evidence and prejudicial because
    it showed Pulega gesturing and yelling. The State argued the video was relevant to
    establish identity and the seizure of the EBT card and the $20 bill from Pulega. The
    State also argued the video allowed the jury to compare the person in the ATM Bank
    videos with the person arrested.
    14
    No. 69439-1-1/15
    After watching the patrol car video, the trial court rejected the defense argument
    and allowed the State to introduce the patrol car video into evidence. The court ruled
    the evidence was "highly probative" of identification and "what... Mr. Pulega look[ed]
    like on the date of the incident compared with the videos at the Chase Bank." The court
    ruled, in pertinent part:
    I'm not clear how this would be character evidence. I don't see any
    conduct that would show admissibility of guilt or how any of Mr. Pulega's
    actions while in detention is in conformity with the charged offense of
    robbery, so it's just - it - I don't see that it even qualifies as any type of
    improper character evidence.
    From my perspective, it's actually the best evidence. Yes, officers
    did testify that these are the items retrieved, but there was always the
    suggestion that was it ~ were these items planted? And it's not as though
    items have never been planted by law enforcement. They have. We
    know that. And so, from my perspective, this removes that question in the
    jurors' minds of the credibility of the officers' testimony and corroborates it
    to a certain degree.
    I don't really have concerns about Mr. Pulega appearing in a
    fashion that is highly prejudicial to him. Yes, at one point he raises his
    hands and the police put them down, but - I mean, I think everyone can
    understand that that's for officer safety and that's a routine matter.
    As far as his yelling, I think the officers can testify and it's consistent
    with the State's theory of the case that Mr. Pulega yelled at - towards
    Kiley with respect to the issue of, "Take your $20 back."
    It is highly probative of the issue of identification what did Mr.
    Pulega look like on the date of the incident compared with the videos at
    the Chase Bank. And we must remember that regardless of what
    evidence the defense chooses to put on or not put on, the State always
    has its high burden of proof, and inasmuch, I would find that the video
    offered by the State is highly probative and not prejudicial to the degree
    that it substantially outweighs that probativity. I'll allow the State to show
    the video. Motion to exclude is denied.
    At the request of the defense, before the jury saw the video, the court gave the
    jury the following limiting instruction:
    Members of the jury, the evidence which you are about to see,
    which is a video from Officer McDonald's car, patrol car, is being shown
    for the limited purpose of the State's offer of identification of the defendant,
    15
    No. 69439-1-1/16
    the location of the defendant, and identification of items in his possession,
    and for no other purpose. You must not consider the evidence for any
    other purpose.'51
    Under ER 403, even relevant evidence may be excluded if its probative value is
    substantially outweighed by the danger of unfair prejudice. State v. Coe. 
    101 Wash. 2d 772
    , 782, 
    684 P.2d 668
     (1984). The trial court is vested with broad discretion in
    deciding to balance relevance against prejudice. State v. Baldwin. 
    109 Wash. App. 516
    ,
    528, 
    37 P.3d 1220
     (2001), review denied. 
    147 Wash. 2d 1020
    , 
    60 P.3d 92
     (2002).
    The trial court did not abuse its discretion in ruling admission of the probative
    patrol car video outweighed any prejudice. The patrol car video was relevant to prove
    identity by comparing the appearance of the person in the somewhat blurry ATM Bank
    videotape with the patrol car video of Pulega and his clothing and, in particular, the
    distinctive belt he was wearing. We also presume the jury followed the instruction of the
    court to consider the evidence only for the limited purpose of identification and the
    identification of the items in Pulega's possession. Carnation Co. v. Hill. 
    115 Wash. 2d 184
    ,
    187, 
    796 P.2d 416
     (1990).
    3. Objection to Testimony of Officer Hilton
    Pulega contends the court abused its discretion by overruling the defense
    objections to Officer Hilton's testimony. In response to general questions during direct
    examination, Officer Hilton testified that part of his job is "apprehending bad guys" and
    robberies are "inherently violent." Officer Hilton's testimony that his job was
    "apprehending bad guys" was in response to a question about his duties as a police
    officer. Officer Hilton's statement that robberies were "inherently violent" was in
    5At the conclusion of the instruction, a juror asked the trial judge to repeat the three purposesfor
    showing the video, and the judge did so.
    16
    No. 69439-1-1/17
    response to a question about why he responded to the robbery, and was consistent with
    the jury instructions defining the crime of "robbery." See State v. Lillard. 
    122 Wash. App. 422
    , 437, 
    93 P.3d 969
     (2004) (holding that a police officer's testimony describing how
    he conducted his investigation was admissible), review denied. 
    154 Wash. 2d 1002
    , 
    113 P.3d 482
     (2005). The court did not abuse its discretion in overruling the objections to
    Officer Hilton's testimony.
    Cumulative Error
    Pulega claims he is entitled to a new trial under the cumulative error doctrine.
    The cumulative error doctrine applies where several trial errors standing alone do not
    warrant a new trial, but when combined, may require a new trial. State v. Grieff. 
    141 Wash. 2d 910
    , 929, 
    10 P.3d 390
     (2000). Because we conclude the court did not err in
    admitting the 911 call, the patrol car video, or overruling objections to the testimony of
    Officer Hilton, the cumulative error doctrine does not apply. Grieff. 141 Wn.2d at 929.
    We affirm the jury conviction of robbery in the second degree.
    ^woa ;
    WE CONCUR:
    17