No. 24336-9-II.The Court of Appeals of Washington, Division Two.
Filed: May 18, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Grays Harbor County, No. 98-1-00476-5, Hon. Gordon L. Godfrey, January 25, 1999, Judgment or order under review.
Counsel for Appellant(s), Kris Zabriskie, Attorney At Law, 104 Marcy Ave W, Montesano, WA 98563.
Counsel for Respondent(s), William A. Leraas, Grays Harbor Dep Pros Atty, Rm 102, 102 W Broadway, Montesano, WA 98563.
J. ROBIN HUNT, A.C.J.
Tina McKinney appeals the trial court’s denial of her motion to suppress photographic evidence, which resulted in her firearm possession conviction. We affirm.
FACTS
On September 9, 1998, police officers executed a search warrant at Tina McKinney’s Aberdeen home in connection with an ongoing murder investigation. They found McKinney crouched next to a dresser in the home’s only bedroom and arrested her for drug possession.
They also found a gun holster on top of her dresser and a .38 caliber handgun and women’s clothes in her lower dresser drawer. Both the gun and the holster were within McKinney’s reach. Lying on the bed was a black purse that contained a group of Polaroid photographs.[1] In one of the photos, McKinney is posing with three men and holding a handgun, similar to the .38 found in the dresser, with a rose protruding from the barrel. Written at the bottom of the photo are the word `Beware’ and the numbers `9/8/88′ and `14/88.’ Printed on the backside of the photo is lot number 04812124168.
Two days later, while in jail, McKinney told Officer Jon Hudson that she knew officers had found a gun at her house and a photo of her holding `the gun.’[2] She explained that Patrick Wakefield had left the gun at her house a day or two before the search.
The State charged McKinney with first degree unlawful possession of a firearm in violation of RCW 9.41.040(1)(a). At trial, McKinney moved in limine to exclude the photo depicting the woman holding a gun, arguing that (1) the State could not establish that the photos were originals for purposes of ER 1001(c) and ER 1002; and (2) the photos were inadmissible as evidence of a prior bad act under ER 404(b) because the State had charged her with possession of a gun on September 9, 1998, not on the date the picture was taken.
At a CrR 3.6 hearing on McKinney’s motion, Hudson testified about his conversation with McKinney at the jail. He also testified that one man pictured in the photo with McKinney had said that the bandanna he wore in the photo was new. Other officers recognized McKinney and testified that McKinney, the wall in the background, the brass bed, and other items in the photo looked the same as they did at the time of the search. The officers also recognized the other people in the photo,[3] with whom they had had encounters near the time of the search; these individuals also looked similar in the photo to the way they looked near the time of the search and at trial. Officer Bagley testified that on the night of the search, police seized the items the other individuals are holding in the photo — a metal baseball bat and a green bottle of Surge soda. Bagley further testified that, after enlarging the photo on a scanner, it appeared that McKinney was holding the same gun as the one the officers seized from her dresser drawer.
Officer Lampky testified about the Polaroid photograph process. Based on training he received from Polaroid representatives, he knew that each picture in a package of Polaroid film inserted into a camera has the same lot number and that each package must be used up before another package may be inserted. Contrary to McKinney’s claim that the photo must have been taken three years earlier, Polaroid film cannot stay in a camera for three years because the battery in the pack will die. The Polaroid photograph that McKinney challenged came from lot number 04812124168. Other photographs with the same lot number on the back were dated 9/7/98 and 9/8/98.
The court ruled the Polaroid photo of McKinney holding the gun admissible. The court found it significant that (1) the photo came from a certain packet; (2) officers could identify specific items; (3) all the people in the photo looked similar to the way they looked around the time of the search; (4) McKinney admitted to Hudson that she knew about the photo of her with `the gun;’ and (5) McKinney had not lived at that residence three years earlier, when the defense claimed the photo was taken. A jury found McKinney guilty as charged.
ANALYSIS I. Standard of Review
Admission of evidence is within the trial court’s sound discretion, which we will not disturb on appeal absent a showing of abuse of discretion. State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990); State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306 (1987). Abuse occurs when the trial court’s ruling was manifestly unreasonable or discretion was exercised on untenable grounds. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999); State v. Gatalski, 40 Wn. App. 601, 606, 699 P.2d 804 (1985). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39
(1982). Here, appellant McKinney has not met that burden.
II. ER 1002, 1001(c), or 901
McKinney argues that the State failed to satisfy ER 1002, which requires an `original’ photograph, and ER 901, which requires that exhibits be authenticated as a condition precedent to their admissibility.[4] McKinney’s argument fails for three reasons.
First, Polaroid photographs are by their very nature `originals.’ Polaroid[5] film is shot, developed, and immediately ejected from the camera as an original print; the print is not developed from a negative in a darkroom procedure. Assuming that a Polaroid photo is an original, it is irrelevant that no one testified that the photo of McKinney holding the gun was an original; testimony that the photo was a Polaroid was sufficient to meet ER 1002’s requirement that the photograph be an original.
Second, McKinney’s exclusive focus on ER 1002’s `original’ requirement overlooks the expanded definition of an `original’ photograph in ER 1001(c): `An `original’ of a photograph includes the negative or any print therefrom.’ Because a Polaroid photo is, by its nature, both the negative and print, the photo in question falls within this expanded definition under ER 1001(c).[6]
Third, Washington case law `reflect[s] a policy of liberal admissibility’ with regard to photographs. Karl B. Tegland, 5C Washington Practice: Evidence, § 901.19, at 203 (1999). As our State Supreme Court explained long ago, `[T]his court has for many years encouraged the admission and use of demonstrative evidence, including photographs.’ State v. Tatum, 58 Wn.2d 73, 75, 360 P.2d 754 (1961). The Tatum Court, for example, addressed authentication of photographs as follows:
What quantum of authentication do courts require before a photograph may be admissible in evidence? It is simply this — that some witness (not necessarily the photographer) be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portray the subject or subjects illustrated. The photograph need only be sufficiently accurate to be helpful to the court and the jury.
Tatum, 58 Wn.2d at 75 (citations omitted) (emphasis added). The Court later ruled that the only authentication needed is testimony of a witness with knowledge of the person, thing, or scene that the photo is a `reasonable representation’ of the subject matter. Kelley v. Great Northern Ry. Co., 59 Wn.2d 894, 899, 371 P.2d 528 (1962).[7]
Here, the State introduced sufficient evidence to authenticate the challenged photo by giving `some indication’ of when, where, and under what circumstances the photo was taken. Moreover, the evidence supports the State’s contention that the photo is a `reasonable representation’ of McKinney, her bedroom, and the gun at the time of the search.
McKinney told Hudson that she knew the police found a photo of her holding `the gun,’ which her friend Wakefield had left at her house a couple of days earlier. Furthermore, the people in the photo all looked the same as they did near the time of the search and seizure, which evidence alone satisfies Tatum’s requirement of `some indication’ about when the photo was taken.
In addition, an entire pack of Polaroid film must be shot before it is replaced or the pack will be ruined. Here, three groups of Polaroid photos were seized, each group with its own lot number. The photo of McKinney holding the gun and rose came from the group with lot number 04812124168. Comparing the photos in that lot with the photos from the other lots shows that the photos bearing lot number 03834089162 have dates ranging from 8/27/98 to 8/31/98 scratched into their borders. By contrast, except for the challenged photo, the other pictures from lot number 04812124168 have dates ranging from 9/7/98 to 9/8/98 scratched into their borders. Lampky’s testimony established that all photos with the same lot number must have come from the same pack. Thus, assuming the dates on the other photos from lot number 04812124168 to be accurate, the photo in question from the same lot number 04812124168 must have been shot in early September 1998, rather than on 9/8/88, as hand-written.[8]
This satisfied Tatum’s requirement that there be some indication of when the photo was taken.
Moreover, the photos accurately depicted items in the same condition found in McKinney’s room when the search took place. That evidence along with Hudson’s testimony, that McKinney acknowledged the photo and that the gun was left at her house, gave the trial court `some indication’ of where the photo was taken, as well as when. Thus, Tatum’s second requirement was met.
The trial court heard Lampky testify about the Polaroid photography process; viewed the picture of McKinney posing and holding a gun; and heard Bagley’s testimony that, after enlarging the photo on a scanner, the gun in McKinney’s hand appeared to be the same gun as the one the officers seized. Thus, the court had sufficient indication of the circumstances under which the photo was taken, satisfying Tatum’s third requirement.
Finally, this testimony combined to meet Kelley’s requirement that the photo be a `reasonable representation’ of the subject matter. Bagley established that the gun in the photo bore a reasonable resemblance to the gun seized from McKinney’s home. Various officers established that the photo was a reasonable representation of both McKinney and her room at the time of her arrest. These testimonies satisfied ER 901’s requirement that a photo be authenticated before admission.
III. ER 404(b)
McKinney also argues that because the State did not allege that the photo was taken on the day she was arrested for possessing the gun, the photo could have been offered only as evidence of a prior bad act, in violation of ER 404(b). We disagree.
Here, the evidence established that McKinney, the other individuals in the photo, and her room looked the same in the photo as they did at the time of the seizure and her arrest. Moreover, Hudson testified that Jenkins acknowledged that the bandanna he wore in the photo was new. This evidence alone suggests the photo was taken close in time to the search of the house[9] and is evidence that McKinney was committing a current bad act.
Furthermore, McKinney’s attempt to dismiss Hudson’s testimony is flawed. That she knew a gun had been seized prior to her conversation with Hudson does not negate the significance of his testimony that: (1) she knew about the photo of her holding `the gun;’ and (2) she knew that her friend had dropped off the gun a couple of days earlier. On the contrary, his testimony is evidence that very little time elapsed between the taking of the photo and the seizure of the gun.
Finally, comparing the lot numbers of the various Polaroid photos (and the dates inscribed on those photos) is significant. The other photos inscribed with dates from the batch bearing lot number 04812124168 indicate they were taken on 9/7/98 and 9/8/98. The challenged photo, as part of the same batch, must have been taken at around the same time. Moreover, the dates scratched into the group bearing lot number 03834089162 demonstrate that the photos from lot number 0481214168 could not have been shot before 8/31/98. This evidence, combined with Hudson’s testimony, tends to show that the photo of McKinney posing with the gun was taken within two days of the search and her arrest. Thus, the photo depicts McKinney’s contemporaneous act, not a prior bad act. There was no violation of ER 404(b), and the trial court’s refusal to exclude the photo on this ground was not an abuse of discretion.
IV. The Photo was Relevant to Prove Unlawful Possession and did not Unduly Prejudice McKinney
Whether the trial court abused its discretion in admitting the photo hinges on the balance between its relevance and its prejudice to McKinney. Evidence is relevant and admissible if it has `any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ER 401, 402. But a court may exclude relevant evidence if the danger of unfair prejudice substantially outweighs its probative value. ER 403. Here, the trial court did not abuse its discretion in admitting the photo.
McKinney was charged with unlawful possession of a firearm found in her apartment. A properly authenticated photo of her with the firearm is clearly relevant to her prosecution, especially because McKinney was in constructive,[10] rather than actual, possession of the firearm at the time of its seizure. The gun was seized from McKinney’s residence. Her statements to Hudson showed that she knew the gun was in her home. The photograph was relevant to show that McKinney knew the gun was on the premises and exercised dominion and control over it.
And McKinney did not show that the danger of unfair prejudice[11]
from the photo substantially outweighed its probative value.[12]
Because McKinney was charged with possession of a firearm, the probative value of the properly authenticated photo of her holding that firearm was not `negligible.’ See n. 11. McKinney’s conclusory, passing references to `prejudice’ in her memorandum in support of her motion to suppress and at oral argument did not meet her burden of demonstrating prejudice. See nn. 11-12.
Finally, McKinney’s citation to State v. Draper, 10 Wn. App. 802, 521 P.2d 53 (1974), does not persuade us that the trial court abused its discretion. In Draper, the court found that admission of the defendant’s lawful possession of prescription drugs, to show intent to deliver a controlled substance in his possession, would be unduly prejudicial because any connection between the two was `tenuous’ and `negligible.’ Draper, 10 Wn. App. at 805-06. Thus, the evidence the Draper court found to be excludable on `prejudice’ grounds was lawfully possessed by the defendant.
Here, by contrast, as a felon, McKinney could not lawfully possess any weapon. A photo of her holding the very weapon she was charged with possessing is not prejudicial under Draper. Again, the trial court did not abuse its discretion in admitting the photo.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: SEINFELD, J., QUINN-BRINTNALL, J.
There are no such scratch marks or silver `bleed-throughs’ on the pictures themselves, and, clearly, no color copy of the photo has been superimposed onto the print.
(1995) (trial court acted within its discretion in excluding photo of accident scene taken a year after accident due to changes in surrounding scenery); Walker v. State, 67 Wn. App. 611, 837 P.2d 1023 (1992) (holding same). But that is not the case here.
(1990) (citing State v. Callahan, 77 Wn.2d 27, 29-30, 459 P.2d 400
(1969)). Factors pointing to dominion and control include `knowledge of [an] illegal item on the premises and evidence of residency. . . .’ State v. Jeffrey, 77 Wn. App. 222, 227, 889 P.2d 956 (1995) (citation omitted).