State Of Washington, Respondent V. Matthew Raymond Washington, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

) =
) No. 73162-9-| on
Respondent, ) S

) DIVISION ONE ,
V. ) oO
) =
MATTHEW RAYMOND WASHINGTON, ) UNPUBLISHED OPINION,
)
Appellant. ) FILED: June 6, 2016 o

)

BECKER, J. — Appellant Matthew Raymond Washington was convicted of
residential burglary after a latent fingerprint left on a jewelry box was identified as
his. We adhere to our earlier holding that fingerprint evidence alone is sufficient
to support a conviction where the trier of fact could reasonably infer from the
circumstances that it could only have been impressed at the time the crime was
committed.

FACTS

On the morning of August 12, 2013, a married couple left their house in
Wedgwood and went to work. They left their second-story bedroom window
cracked open. That afternoon, a neighbor had just walked past their house when
he heard a window break. He ran back to their house and saw a man struggling

to get through the bedroom window, with his feet still hanging out the window.

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No. 73162-9-1/2
Minutes later, the neighbor saw a man leave the house through the front
door. 	As the man walked away, the neighbor saw him drop a small jewelry gift
box on the ground. 	Police were called but were unable to find a suspect near the
scene.
A police officer did, however, lift a fingerprint from the jewelry gift box.
Seattle Police Department fingerprint examiners analyzed the fingerprint and
concluded that it matched Washington's.
The State charged Washington with one count of residential burglary. 	The
jury found him guilty as charged. Washington appeals.
ANALYSIS
The issue on this appeal is whether fingerprint evidence was sufficient, by
itself, to support Washington's conviction for residential burglary. Washington
acknowledges our previous holding that "fingerprint evidence alone is sufficient to
support a conviction where the trier of fact could reasonably infer from the
circumstances that it could only have been impressed at the time the crime was
committed." State v. Lucca, 56 Wn. App. 597, 599, 784 P.2d 572 (1990). 	He
argues, however, that a 2009 report from the National Academy of Sciences and
various documented incidents of erroneous fingerprint identification "prove that
findings of guilt resting only on latent fingerprint analysis pose an unacceptable
risk of erroneous identification." Washington requests that we overrule Lucca
and hold that, absent corroborating evidence, fingerprint evidence alone is
insufficient to sustain a burglary conviction.

No. 73162-9-1/3
The record is insufficient to even consider a categorical change to the
status of latent fingerprint evidence. The record contains no evidence of error
rates in latent fingerprint analysis. 	Nor does Washington cite a single case from
any jurisdiction holding that latent fingerprint evidence alone is insufficient to
support a conviction. 	And while the National Academy of Sciences report does
raise questions regarding the reliability of latent fingerprint evidence, courts have
found it insufficient to warrant changes to the status of such evidence. 	See
Johnston v. State, 27 So. 3d 11, 21 (Fla.) (National Academy of Sciences report
"lacks the specificity that would justify a conclusion that it provides a basis to find
the forensic evidence admitted at trial to be infirm or faulty"), cert, denied, 562
U.S. 964 (2010); United States v. Rose. 672 F. Supp. 2d 723, 726 (D. Md. 2009)
(despite National Academy of Sciences report, "fingerprint identification evidence
... is generally accepted in the relevant scientific community, has a very low
incidence of erroneous misidentifications, and is sufficiently reliable to be
admissible under Fed. R. Ev. 702)"; Commonwealth v. Gambora, 457 Mass. 715,
933 N.E.2d 50, 61 n.2 (2010) ("nothing in this opinion should be read to suggest
that the existence of the NAS report alone will require the conduct of. . . hearings
as to the general reliability of expert opinions concerning fingerprint
identifications"). 	A statement in the report itself cautions against giving it too
much weight:
The committee decided early in its work that it would not be
feasible to develop a detailed evaluation of each discipline in terms
of its scientific underpinning, level of development, and ability to
provide evidence to address the major types of questions raised in
criminal prosecutions and civil litigation.

No. 73162-9-1/4
Comm. on Identifying the Needs of the Forensic Sci. Cmty. , Nat'l Research
Council, Strengthening Forensic Science in the United States: A Path
Forward 7 (2009), https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf (last
accessed June 1, 2016). 	In addition, the report "does not appear to question the
underlying theory which grounds fingerprint identification evidence; as the report
states, there is scientific evidence supporting the theory that fingerprints are
unique to each person and do not change over a person's life." Gambora, 933
N.E.2dat58.
We have been informed about this same National Academy of Sciences
report and documented incidents of fingerprint misidentification before on
appeals regarding whether a Frye1 hearing is required to admit fingerprint
identification evidence. 	See State v. Piqott, 181 Wn. App. 247, 249-50, 325 P.3d
247 (2014); State v. Lizarraqa, 191 Wn. App. 530, 565-67, 364 P.3d 810 (2015),
review denied, No. 92624-7 (Wash. Apr. 27, 2016). We held that "the reliability
of fingerprint identification has been tested in our adversarial system for over a
century and routinely subjected to peer review," and has long been accepted by
both the scientific community and Washington courts. 	Piqott, 181 Wn. App. at
251. 	See also Lizarraqa, 191 Wn. App. at 565-67 (adhering to Piqott).
In contrast, Washington cases prohibiting convictions based solely on
confessions and dog tracking evidence are based on a historical distrust of such
evidence. 	See State v. Dow, 168 Wn.2d 243, 249, 227 P.3d 1278 (2010) (corpus
1 Frve v. United States, 54 App. D.C. 46, 293 F. 1013(1923). 	Under Frye,
novel scientific evidence is admissible if it is based on a theory or principle which
is generally accepted in the relevant scientific community. 	Piqott, 181 Wn. App.
at 249.

No. 73162-9-1/5
delicti doctrine is grounded in "judicial mistrust of confessions"); State v. Loucks,
98 Wn.2d 563, 567, 656 P.2d 480 (1983) (courts regard the probative value of
dog tracking evidence "with some suspicion"). 	Corpus delicti, "body of the
crime," must be proved by evidence sufficient to support the inference that there
has been a criminal act. 	State v. Brockob, 159 Wn.2d 311, 327, 150 P.3d 59
(2006). 	Here, there is no doubt that a burglary took place. 	Also, while a tracking
dog cannot be questioned about his investigations or conclusions, a fingerprint
identification analyst can. 	In this case, both the fingerprint analyst and the
supervisor who reviewed her work testified at length about their methods of
investigation and the reliability of their conclusions. 	For these reasons, appellant
Washington's comparisons to confessions and dog tracking evidence are
unpersuasive.
Proof of possession of stolen property, unless accompanied by other
evidence of guilt, is not prima facie evidence of burglary. 	See, e.g., State v.
Mace, 97 Wn.2d 840, 650 P.2d 217 (1982). 	This is because possession of
stolen goods alone does not prove that the possessor committed the burglary—
that is, entered or remained unlawfully in a building with the intent to commit a
crime therein. 	See, e.g., RCW 9A.52.025 (residential burglary statute).
Washington's comparison to possession of stolen property is inapposite to this
case, where an eyewitness saw the burglar break into the house, exit the house,
and drop the jewelry box.
A defendant confronted with fingerprint evidence also has the right to
challenge that evidence by hiring his own expert. 	See, e.g., State v. Boyd, 160

No. 73162-9-1/6
Wn.2d 424, 158 P.3d 54 (2007) (Sixth Amendment right to effective assistance of
counsel guarantees expert assistance if necessary to an adequate defense).
Washington in fact exercised this right, although his expert did not testify at trial.
Washington argues that the ability to hire an expert does not resolve the inherent
unreliability of fingerprint evidence, but, as discussed above, he has not proven
any such unreliability.
For these reasons, we adhere to our decision in Lucca. 	In this case, the
burglary victims, the homeowners, testified that they did not know Washington,
did not give him permission to enter their home or take their jewelry or jewelry
boxes, and could not think of any reason that he would have left a fingerprint on
any of their property. 	The neighbor who saw the man drop the jewelry box
testified that he did not see anyone else touch the jewelry box from the time it
was dropped until the police arrived. 	The jury could reasonably infer from the
circumstances that Washington's fingerprint could only have been impressed on
the jewelry box at the time the burglary was committed. 	See Lucca, 56 Wn. App.
at 599. An eyewitness saw the burglary take place, and fingerprint evidence
identified the burglar as Washington. Washington's conviction is supported by
substantial evidence.
Washington asks that we deny any request by the State for costs to be
imposed on him. 	The State has not yet submitted a cost bill, so Washington's
request is premature. 	We will not make a decision on costs at this time.

No. 73162-9-1/7
Affirmed.
Becker, 4
WE CONCUR:
Schnellen. g
Leach, 1
7