State Of Washington, V . Eleanor Angie Estrada

FILtD
COURT OF APPEALS OW
STATE OF WASHINGTON I
2018AUG 13 4H857
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
THE STATE OF WASHINGTON, No. 76357-1-1
Respondent,
V. UNPUBLISHED OPINION
ELEANOR ANGIE ESTRADA,
Appellant. FILED: August 13, 2018
SCHINDLER, J. — A jury convicted Eleanor Angie Estrada of attempted residential
burglary. Estrada seeks reversal. Estrada claims the court abused its discretion by
denying the motion in limine on fingerprint evidence and violated her right to due
process by instructing the jury on the statutory inference of intent. We affirm.
FACTS
Heather and Bradley Boren live with their three children on 2.25 acres in
Enumclaw. The two-story house is located at the end of a gravel road. The house has
glass windows that slide left to right. The exterior window screens are attached from
the inside with tabs.
The family left the house early on November 23, 2014 for an all-day soccer
tournament. Because there had been "some break[-ins] in the neighborhood," the
Borens made sure "that everything was locked up." The family returned home late that
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night. The children walked inside the hOuSe and "headed up the stairs." The children
noticed the exterior screen on the front window over the stairs was bent and partially
detached from the window. Heather noticed "smudges" on the windows. Bradley
turned on the back porch lights and went outside. Bradley found the "large ladder" he
keeps near "the back of the shop was propped up against the back of the house" by a
second-story bedroom window. The exterior screen of the upstairs bedroom window
had been removed and damaged and was "on the roof." The exterior screen of an
upstairs bedroom at the front of the house was also "bent" and partially detached from
the window.
Heather called 911. King County Sheriff Deputy Lucas Tarp responded to the
911 call. Deputy Tarp saw the ladder "leaned up against the roof of the house" in the
backyard and the "damaged window screens."
Washington State Patrol Detective Tim Hanson went to the Boren house the next
day. Detective Hanson saw fingerprints on "three different windows, two on the front of
the house and one on the back." Detective Hanson collected "ten different prints" from
the three windows, including fingerprints and left and right palm prints. Washington
State Patrol Crime Laboratory(WSPCL)forensic scientist Scott Redhead identified
eight useable prints as belonging to Eleanor Estrada.
The State charged Estrada with attempted residential burglary. Estrada pleaded
not guilty.
Heather Boren, Deputy Tarp, Detective Hanson, Detective Steve Reeves, and
WSPCL forensic scientist Redhead testified at trial.
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WSPCL forensic scientist Redhead testified about his training and experience.
Redhead stated he analyzes fingerprints in "approximately 25 to 30 cases a month."
Since 2001, he has analyzed fingerprints in 3,500 to 4,000 cases. Redhead testified the
"unique entity of the fingerprint is the features,. .. whether it's a ridge that starts or
stops or splits into two, how far apart it is from the next one, and then the spacial
relationship of these on multiple ridges." Redhead did not know of"any cases of two
people having the same fingerprints." He testified "all 8 useable prints" collected from
the Boren house belonged to Eleanor Estrada. Redhead testified that 3 different latent
prints matched Estrada's right middle finger, 2 matched her right index finger, 2
matched her right palm, and 1 matched her left palm. Two other WSPCL forensic
scientists independently verified the analysis.
On cross-examination, Redhead admitted there is "no set standard" in comparing
"two fingerprints that are next to each other." Redhead conceded that the 2009 National
Research Council of the National Academy of Sciences report(NRC report) showed the
Federal Bureau of Investigation incorrectly identified a suspect using fingerprint analysis
and that "people make mistakes."
Detective Steve Reeves testified that he interviewed Estrada approximately three
weeks after the attempted burglary. Estrada told Detective Reeves that she "had been
staying in the Enumclaw area." When Detective Reeves showed Estrada photographs
of the Boren house, Estrada "denied recognizing that home" and denied "trying to
burglarize that house." Estrada said she "had no idea where that house was."
The court instructed the jury on attempted residential burglary. Jury instruction 7
states,"A person commits the crime of residential burglary when he or she enters or
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remains unlawfully in a dwelling with intent to commit a crime against a person or
property therein." Jury instruction 11 states,"A person enters or remains unlawfully in
or upon premises when he or she is not then licensed, invited, or otherwise privileged to
so enter or remain." Jury instruction 12 states,"A person commits the crime of
attempted residential burglary when, with intent to commit that crime, he or she does
any act that is a substantial step toward the commission of that crime." Without
objection, the court also instructed the jury on the statutory inference of intent.
The to-convict jury instruction states:
To convict the defendant of the crime of attempted residential
burglary, each of the following elements of the crime must be proved
beyond a reasonable doubt:
(1) That on or about November 23, 2014, the defendant did an act
that was a substantial step toward the commission of residential burglary;
(2) That the act was done with the intent to commit residential
burglary; and
(3) That the act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
On the other hand, if, after weighing all the evidence, you have a
reasonable doubt as to any one of these elements, then it will be your duty
to return a verdict of not guilty.121
During closing argument, neither the State nor the defense mentioned the
statutory inference jury instruction. The State argued the evidence established Estrada
was guilty of attempted residential burglary.
[W]e're talking about a substantial step. And there's evidence of
substantial step as soon as that ladder gets put against the house. Right
I Jury instruction 9 states,"A person acts with intent or intentionally when acting with the
objective or purpose to accomplish a result that constitutes a crime."
2 The court also instructed the jury on the lesser included crime of criminal trespass in the second
degree. To convict Estrada of criminal trespass in the second degree, the State had to prove Estrada
"knowingly entered or remained in or upon the premises of another."
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there we have substantial step. That's not knocking on the door to say
hello.
But that's not where it ends. Then we have the... damaged
screens. Ms. Boren testified that the screens were removed from the
inside which makes sense because that's how most screens are removed,
from the inside. But when you go through the outside to try to get some
screens open you end up damaging them.
The jury found Estrada guilty of attempted residential burglary. With an offender
score of 9, the court imposed a special drug offender sentencing alternative sentence.
ANALYSIS
Estrada seeks reversal, arguing (1)the court erred in denying the motion to limit
the fingerprint testimony and (2) the court violated her right to due process by instructing
the jury on the statutory inference of intent.
1) Fingerprint Testimony
Before WSPCL forensic scientist Redhead testified, the defense asked the court
to instruct the witness to "steer clear of the term absolute match or to preface that his
match is his belief, based on his training and experience." The prosecutor stated, "I
don't plan on asking about an absolute match." The prosecutor argued Washington
case law does not prohibit a forensic scientist who examines and compares latent
fingerprints from testifying that the fingerprints "match" an individual.
The court instructed the prosecutor to "avoid any kind of use of the term absolute
match." The court ruled the prosecutor could "ask the witness whether or not there was
a match or the witness will be able to testify that there was a match. Any objection
would go to the weight."
Estrada contends the court erred by allowing the WSPCL forensic scientist to
testify that the latent fingerprints obtained from the windows at the Boren residence
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"matched" Estrada. We review a trial court's decision on expert witness testimony for
abuse of discretion. In re Pers. Restraint of Morris, 176 Wn.2d 157, 168, 288 P.3d 1140(2012). Expert testimony is admissible if the expert is qualified, relies on generally
accepted theories in the scientific community, and the testimony would be helpful to the
trier of fact. ER 702; Morris, 176 Wn.2d at 168-69. A trial court abuses its discretion if
the decision is manifestly unreasonable or exercised on untenable grounds or for
untenable reasons. State v. Gentry, 183 Wn.2d 749, 761, 356 P.3d 714 (2015).
"'Expert testimony is helpful to the jury if it concerns matters beyond the common
knowledge of the average layperson and is not misleading.'" State v. Morales, 196 Wn.
App. 106, 122-23, 383 P.3d 539(2016)(quoting State v. Groth, 163 Wn. App. 548, 564,
261 P.3d 183(2011)), review denied, 187 Wn.2d 1015, 388 P.3d 483(2017).
Washington has a "long history" of admitting fingerprint identification evidence.
State v. Pigott, 181 Wn. App. 247, 249, 325 P.3d 247(2014). WSPCL forensic
scientists routinely testify about whether latent fingerprints "match" the fingerprints of a
defendant. See, e.q., State v. Wade, 186 Wn. App. 749, 761, 346 P.3d 838(2015);
State v. Lizarraga, 191 Wn. App. 530, 549, 364 P.3d 810(2015).
WSPCL forensic scientist Redhead testified extensively about his training,
experience, and the process to analyze fingerprints. Redhead tested eight "useable
prints." Redhead analyzed the latent prints and compared the latent prints to the finger
and palm prints of Estrada. Without objection, Redhead testified that he "identified them
all to the same person, Eleanor Estrada," and "[b]ased on [his] training and experience,"
Redhead stated, "I believe I made a correct identification."
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Relying on the 2009 NRC report, Estrada argues latent fingerprint analysis is
unreliable. In Pigott, we considered the 2009 NRC report and rejected the same
argument. We held that because "the reliability of fingerprint identification has been
tested" and "routinely subjected to peer review," the only question is whether the
witness is qualified as an expert and whether the testimony would be helpful to the trier
of fact. Pigott, 181 Wn. App. at 251. We adhere to our decision in Pigott and conclude
the court did not abuse its discretion in allowing WSPCL forensic scientist Redhead to
testify that the latent finger and palm prints matched Estrada.
2) Statutory Inference Jury Instruction
Estrada contends the court violated her right to due process by instructing the
jury on the statutory inference of criminal intent for burglary. Due process requires the
State to prove every element of a charged offense beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v.
Bencivenqa, 137 Wn.2d 703, 706, 974 P.2d 832(1999).
The State charged Estrada with attempted residential burglary. A person
commits residential burglary when he or she enters or remains unlawfully in a dwelling
with the intent to commit a crime against property. RCW 9A.52.025(1). A person is
guilty of attempted residential burglary if, with intent to commit the principal crime, she
commits an act constituting a "substantial step toward" its commission. RCW
9A.28.020(1); Bencivenga, 137 Wn.2d at 707. A "substantial step" means more than
"mere preparation." State v. Wilson, 158 Wn. App. 305, 316-17, 242 P.3d 19(2010).
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RCW 9A.52.040 allows the jury to consider an inference of criminal intent for
burglary. RCW 9A.52.040 states:
In any prosecution for burglary, any person who enters or remains
unlawfully in a building may be inferred to have acted with intent to commit
a crime against a person or property therein, unless such entering or
remaining shall be explained by evidence satisfactory to the trier of fact to
have been made without such criminal intent.
Without objection, the court instructed the jury on the statutory inference of intent.
Jury instruction 10 states:
A person who enters or remains unlawfully in a building may be
inferred to have acted with intent to commit a crime against a person or
property therein. This inference is not binding upon you and it is for you to
determine what weight, if any, such inference is to be given.
In State v. Brunson, 128 Wn.2d 98, 105-06, 905 P.2d 346(1995), the
Washington Supreme Court held this jury instruction creates "a permissive inference,"
not a "mandatory" presumption, because the language in the instruction is "clearly
discretionary" and allows the trier of fact to reject the inference as it sees fit.
Estrada cites the comment to 11A Washincton Practice: Washington Pattern Jury
Instructions: Criminal(WPIC)60.05 and State v. Jackson, 112 Wn.2d 867, 774 P.2d
1211 (1989), to argue the court erred in giving the instruction on statutory inference.
See WPIC 60.05 cmt. 3 at 16 (4th ed. 2016). The WPIC 60.05 comment cites Jackson
to state, "This instruction should not be given in an attempted burglary case." Cmt. 3 at
16.
In Jackson, the Supreme Court held the court erred in giving a statutory
inference instruction because there was no evidence of entry and the instruction varied
from the text in WPIC 60.05 by adding the word "attempted." Jackson, 112 Wn.2d at
876; see also Bencivenca, 137 Wn.2d at 707. The court also held the presumption "is
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only permissible when no more than one conclusion can be drawn from any set of
circumstances. An inference should not arise where there exist other reasonable
conclusions that would follow from the circumstances." Jackson, 112 Wn.2d at 876.
The court states,"WPIC 60.05 may be given as a proper instruction in a burglary case.
However, where the State pleads and proves only attempted burglary, as here, this
instruction is improper." Jackson, 112 Wn.2d at 876.
In Brunson, the court held that the permissive inference allowed by the jury
instruction was not the sole proof of criminal intent and that the circumstantial evidence
was sufficient for the jury to find the defendant intended to commit a crime, regardless
of the inference. Brunson, 128 Wn.2d at 109. The evidence against one defendant
showed he attempted entry through a kitchen window, he had an "implausible" excuse
that he simply wanted to use the phone, and the kitchenware from inside the house was
found outside in the yard. Brunson, 128 Wn.2d at 109, 102.
In State v. Drum, 168 Wn.2d 23, 225 P.3d 237(2010), the Washington Supreme
Court concluded that when a permissive inference is the"'sole and sufficient proof of
an element,'"the presumed fact must flow beyond a reasonable doubt from the proven
fact so that the prosecution does not"'circumvent its burden of persuasion.'" Drum,
168 Wn.2d at 35-363(quoting Brunson, 128 Wn.2d at 107). But "[o]n the other hand,
where the inference is only part of the state's proof, the presumed fact must flow more
likely than not from a proven fact." Drum, 168 Wn.2d at 36 (citing Brunson, 128 Wn.2d
at 107).
3 Internal quotation marks omitted.
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Here, the statutory inference is not the sole proof of intent, and unlike in Jackson,
there is evidence of entry. Heather Boren testified the exterior screens are attached
with tabs to the sliding glass windows and can only be removed "from the inside."
When the Borens returned home, the screen on the front window over the stairs was
partially pried off and bent. The ladder was "propped up against the back of the house"
near a second-story bedroom window. The exterior screen of the back upstairs
bedroom window was removed and damaged. The screen of an upstairs bedroom at
the front of the house was bent and hanging off the window. The police found a number
of latent fingerprints and palm prints on the glass of the three sliding windows. There is
no other reason Estrada would use a ladder to forcibly remove the exterior screens and
leave her finger and palm prints on the window panes other than to attempt to gain
entry. Contrary to Estrada's denial, the prints matched Estrada.
State v. Berglund, 65 Wn. App. 648, 829 P.2d 247(1992), is analogous. In
Berglund, we held the court did not err by instructing the jury on the statutory inference
in an attempted burglary case where fingerprints on the inside of a double pane window
could not be made without breaking the exterior pane. Berglund,65 Wn. App. at 653.
The intent to commit a crime may be inferred if the defendant's conduct and the
facts and circumstances plainly indicate such an intent as a matter of logical probability.
State v. Cordero, 170 Wn. App. 351, 368, 284 P.3d 773(2012); Jackson, 112 Wn.2d at
876. Unlike in Jackson, the only reasonable conclusion from the facts and
circumstances is that Estrada forcibly removed the exterior screens to access the
windows to commit the crime of residential burglary.
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Because the statutory inference is only part of the State's proof on intent, we
conclude the court did not violate Estrada's right to due process by instructing the jury
on the statutory inference of criminal intent for the crime of residential burglary.
We affirm the conviction of attempted residential burglary.
0‘i-CW-A
WE CONCUR:
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