State Of Washington v. Zascha Dmitri Sanjurjo-bloom

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 80367-1-I
Respondent, DIVISION ONE
v.
PUBLISHED OPINION
ZASCHA DMITRI SANJURJO-
BLOOM,
Appellant.
APPELWICK, J. — Sanjurjo-Bloom appeals his conviction for robbery in the
second degree. He argues that the trial court impermissibly allowed opinion
testimony from a police officer concerning his identity in security camera footage
and impermissibly allowed the officer to testify as to Sanjurjo-Bloom’s previous
encounters with police. He argues the trial court erred in failing to give a limiting
instruction in response to a jury question inquiring about the officer’s testimony
about prior crimes. We reverse.
FACTS
On March 11, 2018, Zascha Sanjurjo-Bloom, Jenica Stewart, and a child
entered a WinCo grocery store in Marysville, Washington. At some point during
their visit, they separated. Stewart moved through the store, picking up items off
the shelf and placing them in the cart. Later, she concealed some of these items
in her purse. Neither Sanjurjo-Bloom nor the child are visible in the security
footage of the area around her when she does this. Before leaving the store, the
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group reunited. Stewart paid for some items, but not the items concealed in her
purse.
WinCo Loss Prevention Agent Clarence Aseka observed Stewart’s
behavior on the store’s video surveillance system. Aseka and his partner
confronted Sanjurjo-Bloom and Stewart in the store’s parking lot. Aseka testified
the agents identified themselves verbally and by presenting badges. Surveillance
footage from the incident did not capture this act. They asked the pair if they had
items that they did not pay for. Sanjurjo-Bloom and Stewart denied having items
they did not pay for and attempted to walk away. The officers pursued, with
Sanjurjo-Bloom and Stewart continuing to deny having taken items. They walked
towards their vehicle, a two door pickup truck with a canopy over the truck bed.
This is where security cameras begin to capture the interaction in the parking lot
between Sanjurjo-Bloom, Stewart, and the security employees.
Stewart then got into the driver’s seat with her purse. The child ran around
the back of the truck and entered through the passenger side door. Sanjurjo-
Bloom remained outside the truck on the driver’s side. Aseka, also on the driver’s
side, reached for Stewart’s purse through the driver’s side window, believing he
could recover the stolen items. When he did so, Sanjurjo-Bloom sprayed pepper
spray in his face. Stewart then started the vehicle, backed out of the parking
space, Sanjurjo-Bloom jumped into the back of the truck, and the group drove
away.
The State charged Sanjurjo-Bloom with robbery in the second degree. At
trial, the State introduced the security footage and Aseka testified about the
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incident. The State also elicited testimony from Marysville Police Officer Chris
Farley. He testified that he recognized Sanjurjo-Bloom as the individual in the
surveillance video based on previous interactions he had had with Sanjurjo-Bloom
and Stewart. He testified that the most recent contact was a month prior to the
incident. Prior to trial, Sanjurjo-Bloom had moved in limine to prevent Farley from
identifying him in the video. The trial court allowed the identification. In a separate
motion, Sanjurjo-Bloom sought to exclude testimony about the “law enforcement
nature” of Farley’s previous contacts with him. The trial court granted that motion,
ruling that Farley could testify to prior contacts, but not the nature of those contacts.
Farley’s testimony did not discuss the law enforcement nature of his contacts with
Sanjurjo-Bloom.
Sanjurjo-Bloom sought a jury instruction instructing that assault in the fourth
degree was a lesser included offense of robbery in the second degree. The trial
court declined to give the instruction because it found that assault in the fourth
degree was not a lesser included offense of robbery in the second degree.
During deliberations, the jury made the following inquiry to the court:
“Detective Chris Farley said that they were both involved in a crime a month ago.
What was the crime?” In response to the inquiry, Sanjurjo-Bloom sought a limiting
instruction telling the jury it could consider Farley’s contacts only for the purpose
of judging his ability to identify Sanjurjo-Bloom. The trial court declined to give the
instruction. Instead, the court responded that the jury must base its decision on
the evidence already admitted.
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The jury found Sanjurjo-Bloom guilty as charged. The court sentenced him
to 60 months confinement. It also found that he was indigent. It indicated in its
oral rulings that it would impose only the $500 victim assessment and waive all
other costs and fees. Nevertheless, the community custody section of the
judgment and sentence indicated that Sanjurjo-Bloom was obligated to “pay
supervision fees as determined by [the Department of Corrections].”
Sanjurjo-Bloom appeals.
DISCUSSION
Sanjurjo-Bloom argues that the trial court improperly allowed Farley to
identify Sanjurjo-Bloom as the individual in the security footage. He argues that
the trial court improperly allowed Farley to testify to his prior interactions with
Sanjurjo-Bloom. And, he argues that the trial court erred in declining to give a
limiting instruction to the jury regarding Farley’s testimony.
We review a trial court’s evidentiary decisions for abuse of discretion. State
v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). An abuse of discretion exists
if the trial court’s exercise of discretion is manifestly unreasonable or based upon
untenable grounds or reasons. Id.Sanjurjo-Bloom argues that Farley should not have been permitted to
identify him in surveillance footage from the incident. He argues that this opinion
testimony invaded the province of the jury. He further argues that Farley’s
testimony was unfairly prejudicial because he is a police officer. Sanjurjo-Bloom
objected to Farley being allowed to identify him at trial in a motion in limine.
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Only relevant evidence is admissible. ER 402. Evidence is relevant if it
makes the existence of a consequential fact more or less probable. ER 401. Even
relevant evidence may be excluded if its probative value is substantially
outweighed by the risk of unfair prejudice or needless presentation of cumulative
evidence. ER 403. Evidence of prior bad acts is inadmissible to prove the
character of a person in order to show action in conformity therewith. ER 404(b).
Such evidence may be admissible for other purposes, including to prove identity.
Id.Lay witness opinion testimony is governed by ER 701. Such testimony may
be allowed if (1) it is rationally based on the perception of the witness, (2) is helpful
to a clear understanding of the testimony or a determination of a fact in issue, and
(3) is not based on scientific, technical or other specialized knowledge. Id. Opinion
testimony regarding the identification of a defendant in a surveillance photo runs
the risk of invading the province of the jury. State v. George, 150 Wn. App. 110,
118, 206 P.3d 697 (2009). But, such testimony may be admissible if the witness
has had sufficient contacts with the person or when the defendant’s appearance
in court differs from their appearance in the photograph. Id. ER 701 permits a lay
witness to “give an opinion concerning the identity of a person depicted in a
surveillance photograph if there is some basis for concluding that the witness is
more likely to correctly identify the defendant from the photograph than is the jury.”
State v. Hardy, 76 Wn. App. 188, 190, 884 P.2d 8 (1994), aff’d sub nom, State v.
Clark, 129 Wn.2d 211, 916 P.2d 384 (1996).
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The State points to Hardy. There, this court affirmed a trial court’s ruling
allowing a police officer to identify the defendant, Hardy, in a “somewhat grainy”
surveillance video. Id. at 189, 191-192. We observed that the officer was in a
better position to identify Hardy because he had known him for several years. Id.
at 191. We further observed that his testimony was especially helpful to the jury
because the video tape showed Hardy in motion and the officer was more familiar
with Hardy’s mannerisms than the jury, who had only seen him sitting still in a
courtroom. Id.Sanjurjo-Bloom counters with George, 150 Wn. App. at 118-19. There, this
court found it an abuse of discretion for the trial court to allow a police officer to
identify the defendants in a “poor quality” video tape. Id. at 115, 118-19. The court
based its decision on the fact that the officer had seen the suspects on only one
or two brief occasions. Id. at 119. The court found that the contacts “fell far short
of the extensive contacts in Hardy.” Id.
Here, it cannot be said that Farley’s testimony was helpful to the jury. The
trial court determined that, unlike the videos in Hardy or George, the video here
was not poor quality and showed Sanjurjo-Bloom well. Hardy, 76 Wn. App. at 191;
George, 150 Wn. App. at 115. Sanjurjo-Bloom was present in the court room for
trial. The jury did not need help making a determination as to whether he was the
individual in the surveillance tape. And, the WinCo loss prevention agent from the
incident testified at trial and identified Sanjurjo-Bloom as the person he made
contact with and as the person identified in the video.
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Admission of Farley’s identification was therefore unnecessary and
cumulative. In order for lay opinion testimony to be “helpful” under ER 701, there
must be some finding that the jury had a need for the evidence. No such finding
could have been made here.
And, the admission of Farley’s lay opinion testimony about Sanjurjo-
Bloom’s identity led to the testimony of his prior contacts with police. The State
conceded this testimony was relevant only to Farley’s ability to identify Sanjurjo-
Bloom in the surveillance footage. Had the court properly excluded Farley’s
identification of Sanjurjo-Bloom, it also would have needed to exclude Farley’s
prior contacts as irrelevant under ER 402.
Further, the admission of testimony about these contacts introduced unfair
prejudice because of the risk that the jury would conclude that the prior contacts
with police evidenced prior bad acts. The trial court allowed Farley to testify that
he had several contacts with Sanjurjo-Bloom but not to the nature of those
contacts. The court apparently anticipated that Farley’s testimony would not
implicate prior bad acts covered by ER 404(b) if the “law enforcement nature” of
those contacts was excluded. But, at least some of the jury surmised that Sanjurjo-
Bloom’s contact with police was the result of criminal activity. The proof of that is
the jury’s question: “Detective Chris Farley said that they were both involved in a
crime a month ago. What was the crime?”
The question made clear that the jury had factually misapprehended
Farley’s testimony. It also evidenced some likelihood that it was considering
Sanjurjo-Bloom’s apparent prior criminal acts to determine if he committed the
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crime charged here. The purpose of ER 404(b) is to prevent such a miscarriage
of justice. But, the jury had not been instructed that utilizing the evidence in this
way was impermissible. At this point, the error in admitting the testimony should
have been clear. And, the need for a limiting instruction on the use of that evidence
strictly to confirm identity should have been obvious. Confronted with an inquiry
that showed the jury misunderstood the applicable law, the court was obligated to
correct the jury’s misunderstanding. State v. Campbell, 163 Wn. App. 394, 402,
260 P.3d 394 (2011), rev’d on other grounds on reconsideration, noted at 172 Wn.
App 1009 (2012).
Instead, the court compounded its error by its inadequate response to that
inquiry. Sanjurjo-Bloom asked the court to give a limiting instruction. The State
was rightfully concerned that the court’s response might be perceived as a
comment on the evidence. The court’s only response to the jury was “you must
base your decision on the evidence already admitted.”
Limiting instructions on the use of testimony are used with great regularity.
Here, an instruction to the jury to limit the use of the officer’s testimony to determine
only if Sanjurjo-Bloom was the individual pictured in the security footage would not
have been a comment on the evidence. See State v. Freeburg, 105 Wn. App. 492,
501-02, 20 P.3d 984 (2001) (limiting instruction can be crafted in such a way so as
not comment on the evidence). And, it would have ensured the jury wouldn’t
consider the evidence for an improper purpose because the jury is presumed to
follow instructions from the court. See State v. Davenport, 100 Wn.2d 757, 763-
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64, 675 P.2d 1213 (1984) (a jury is presumed to follow instructions of the court,
absent any contrary showing).
And, we cannot say that the trial court’s failure to give a limiting instruction
was harmless. Where, as here, error is not of constitutional magnitude, the error
is not harmless where there is a reasonable probability that the outcome of the trial
would have been materially affected had the error not occured. State v.
Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980); State v. Wilcoxon, 185
Wn. App. 534, 542-43, 341 P.3d 1019 (2015) (failure to give a limiting instruction
is not a constitutional error), aff’d, 185 Wn.3d 324, 373 P.3d 224 (2016). An error
is harmless when the untainted evidence is so overwhelming that it necessarily
leads to a finding of guilt. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182(1985).
Sanjurjo-Bloom’s defense was that he did not know Stewart had stolen
items from the store. The surveillance footage does not show him in her vicinity
when she places items in her purse. There is no testimony that she told him she
was taking items without paying for them. The loss prevention officer testified that
he showed his badge to Sanjurjo-Bloom and asked if Stewart had taken items
without paying for them. But, security footage did not capture this part of the
interaction. The parking lot footage captures only the interactions at the vehicle.
The evidence that Sanjurjo-Bloom was an accomplice to Stewart stealing items
was not so overwhelming that we can say any error was harmless. Instead, there
is a reasonable probability that the jury improperly relied on what it perceived to be
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Sanjurjo-Bloom’s prior criminal acts to determine his knowledge of the stolen
items.
The jury’s question went to the heart of this issue. It was clear from this
question that the jury was utilizing what it perceived as Sanjurjo-Bloom’s prior
criminal acts to determine if he was committing a similar act here. Had the jury
never been exposed to this testimony or if it had been instructed to limit its use of
the evidence to the narrow question of identity, there is a reasonable probability
that it would have believed Sanjurjo-Bloom and returned a not guilty verdict.
Because this issue is dispositive, we need not address Sanjurjo-Bloom’s other
arguments.
We reverse.
WE CONCUR:
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