STATE v. SWEENEY, 124 Wn. App. 1052 (2004)

No. 53831-4-IThe Court of Appeals of Washington, Division One.
Filed: December 27, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Snohomish County. Docket No. 02-1-02658-8. Judgment or order under review. Date filed: 02/05/2004. Judge signing: Hon. Anita L Farris.

Counsel for Appellant(s), Thomas Michael Kummerow, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.

Counsel for Respondent(s), Thomas Marshal Curtis, Snohomish County Pros Ofc, 3000 Rockefeller Ave # 504, Everett, WA 98201-4060.

PER CURIAM.

Roy Sweeney appeals the judgment and sentence entered following his conviction by a jury of one count of forgery. Sweeney challenges the sufficiency of the evidence on the issue of identity and contends that the trial court erred in requiring him to provide a biological sample for DNA identification. We reject both contentions and affirm.

Facts
On July 15, 2002, Linda Adam wrote a check for approximately $25 to pay her telephone bill, placed the check in an envelope, and put it in a mail box. The check was numbered 1736 and was drawn on her Washington Mutual account.

On July 19, 2002, Brent Flagg was working as a teller at a Washington Mutual Bank branch in Everett. A white male of average height and with short dark hair walked up to the teller window and presented a check to cash. The check, which was numbered 1736 and was drawn on Adam’s Washington Mutual account, was made out to Roy Sweeney in the amount of $1500. The color of the check was lighter than usual; it looked like it had been `washed.’ Flagg said he would have to check the signature card because of the amount and asked the man for identification. The man presented two pieces of picture identification and placed a thumb print on the check. Flagg wrote down the information, asked the man to wait, and then contacted the branch manager, who called the police. Flagg returned to the window as the police arrived. He saw the man start to walk toward the main door without the check. A police officer pulled the man aside. Flagg was unable to say whether Sweeney was the man in the bank.

Officer Steve Sieverson responded to the call from the bank. When he arrived, he saw a man talking to another officer just inside the main door of the bank. Sweeney matched the broadcast description of the man, and Officer Sieverson identified Sweeney in court as the man he saw in the bank. Sweeney appeared nervous; he was shifting his weight and looking around very quickly, and his breathing was rapid. Flagg showed the officer the check, which looked washed out. Officer Sieverson arrested Sweeney on an outstanding felony warrant.

Adam identified the check Sweeney had as the one she had written four days earlier and noted that her signature looked different. Adam did not give Sweeney or anyone else permission to write or alter a check drawn on her account.

The jury convicted Sweeney of forgery. He was sentenced within the standard range and ordered to provide a biological sample for DNA identification.

Sufficiency of the Evidence
Sweeney contends that the State failed to prove beyond a reasonable doubt that he was the man who possessed or offered the forged check. He contends that no witness placed the check in question in his hands and that the jury could not infer that the man stopped outside the bank was the person who presented the check to Flagg.

Sweeney’s argument is inconsistent with the evidence: Flagg testified that the man who presented the check walked part way toward the main door before he was pulled aside by an officer; Officer Sieverson testified that the man talking to the officer inside the bank matched the broadcast description of the perpetrator; and Officer Sieverson identified Sweeney in court as the man he saw in the bank. Viewing the evidence and the reasonable inferences in the light most favorable to the State, there was sufficient evidence for a rational jury to find beyond a reasonable doubt that Sweeney was the man who presented or offered the forged check.[1]

DNA Sample
Sweeney contends that the trial court erred in requiring him to provide a biological sample for DNA identification. The contention fails under State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004) and State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076
(1993). In Surge, this court rejected the argument that RCW 43.43.754 and the portion of the defendant’s sentence requiring him to provide a biological sample for DNA identification violate a defendant’s Fourth Amendment right against unreasonable searches. The court held that Olivas is controlling and binding on this court. Surge, 122 Wn. App. at 460.

Affirmed.

COLEMAN, J., GROSSE, J. and BAKER, J.