State Of Washington, V. Sam Voegele

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 82321-3

)

Respondent, ) DIVISION ONE

)

v. ) UNPUBLISHED OPINION

)

SAMUEL DAVID VOEGELE, )

)

Appellant. )

)

ANDRUS, C.J. — Samuel Voegele appeals his conviction for first degree arson.

Voegele contends the court erred by admitting an out-of-court single photo identification,

admitting text messages without proper authentication, and admitting hearsay from a law

enforcement database. We affirm.

FACTS

On May 31, 2020, when Eric DeLeon 1 walked out of his house located at 559 East

Axton Road in Whatcom County, he saw a truck pull into his driveway. A stranger, a large

man with tattoos, jumped out of the truck carrying a bat or bar in his hand. The man

seemed “super pissed” and told DeLeon that he was looking for Kyle Riddle, who lived in

a travel trailer next to DeLeon’s home, because Riddle owed him money. Two other cars

1The record provides two different spellings for the last name of eyewitness Eric DeLeon (both Deleon and

DeLeon). For the purposes of this appeal, we will follow the State’s lead and use DeLeon. We mean no

disrespect if this is an incorrect spelling of his last name.

Citations and pin cites are based on the Westlaw online version of the cited material.

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pulled up behind the truck—a green Volkswagen Beetle and a Honda, with three

additional people inside. Tarah Mendoza was driving the green Volkswagen; Samuel

Voegele sat in her passenger seat. The group stood around Riddle’s trailer and one of

the women stated she was going to burn the place down. The larger man also said he

was going to “connect [his truck] to the trailer and burn it down.” DeLeon saw that they

had gas and “they had everything like they were going to [do] no matter what, prepared

to already do what they were going to do.” DeLeon, who had friends with him, asked the

driver of the truck to move his vehicle out of the way so he could leave with his friends.

When he departed, Mendoza, Voegele and the tattooed man remained behind. Although

the truck driver was threatening to remove the trailer and leave, he had not done so by

the time DeLeon left. DeLeon tried to call Riddle to tell him what was happening.

Around 7 p.m. that same evening, John Nymoen, who lives at 641 East Axton

Road, looked out his window and saw three vehicles, a silver Acura, a green Volkswagen

Beetle, and a truck pulling a trailer, park at the entrance to a gravel pit across the road

from Nymoen’s house. He saw six individuals hanging out and walking in and out of the

trailer, and he assumed they were getting ready to party. Nymoen saw Voegele splashing

liquid onto the trailer as he ran around it. Five to ten minutes later, when he heard wheels

squealing on the gravel, he looked out his window again and saw the truck disconnected

from the trailer and the trailer on fire. Nymoen crossed the road to confront the group,

called 911, and took photos as they fled in their cars. One of his photos captured the

green Volkswagen’s license plate, leading police to Mendoza, its registered owner.

The police responded to Nymoen’s call and found the trailer completely destroyed.

From its license plate, they traced the trailer to Riddle and to DeLeon’s address.

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Whatcom County Deputy Sheriff Mason Stafford drove from the burned trailer to

DeLeon’s address to talk to DeLeon. DeLeon identified the individuals who had

threatened to steal and burn Riddle’s trailer. He described the two men—one was heavy

set, weighing 280 to 300 pounds, with “tons of tattoos,” and the other was a smaller white

man with blonde hair and no tattoos.

Deputy Stafford then contacted Riddle to inform him that his trailer had been

removed from the property and burned down. Riddle met Deputy Stafford at the scene

of the arson and denied knowing who would want to destroy his home. But after Riddle

left the scene, he called Deputy Stafford and told him that Mendoza had been there with

someone named Sam. Riddle later forwarded Deputy Stafford copies of text messages,

purported to be messages from Sam, which indicated Mendoza’s intent to burn Riddle’s

trailer down.

Riddle testified the messages were screenshots of a text conversation he had with

Sam Voegele. Riddle used a friend’s phone, and a phone number sent from another

friend, to text Voegele at (360) 319-0968. The first message Riddle sent at 6:25 p.m. that

day stated, “I robbed Kyle,” “[a]nd stabbed him . . . on his way to the emergency room so

leave me alone.” Voegele responded with a message making it clear he did not believe

the sender had robbed Riddle. At 6:35 p.m., Voegele texted “[w]ell[,] [I] guess [T]arah is

going to burn his house down[.] [N]ot my deal I guess.” A subsequent text message from

Voegele, with a time stamp of 12:16 p.m., stated “I apologize for what she did I guess I

was there and saw it happen but I’m just [s]aying ur homie said u planned to RIP her off

the whole entire thing was planned from the very beginning.” Riddle identified the

messages as accurate representations of messages he received from Voegele on his

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friend’s phone. He identified Voegele, whom he pointed out in the courtroom, as the

sender of the texts.

Deputy Stafford provided a copy of the text messages, with the sender’s phone

number clearly visible, to Ann Bjertness, records and IT manager for Whatcom County

Sheriff’s Office. She testified that, as part of her job, she uses a database, known as the

Spillman database, an investigatory tool used by law enforcement agencies, to link an

individual’s name with an address, phone number, and other information law enforcement

may add. When Bjertness searched the database using the phone number on Riddle’s

text messages, she learned that the phone number was linked to Voegele.

Once Deputy Stafford had Voegele’s full name, he contacted DeLeon and asked

if he would look at a photo montage to identify the men who took Riddle’s trailer. DeLeon

refused to look at a photo montage but agreed to look at a single photograph. Deputy

Stafford showed DeLeon a photograph of Voegele and DeLeon positively identified him

as the blonde man who had been on his property with Mendoza. At trial, DeLeon

confirmed that he saw Voegele on his property before the trailer was removed and

burned.

A jury found Voegele guilty of first degree arson. Voegele appeals his conviction.

ANALYSIS

1. DeLeon’s Photo Identification and In-Court Identification

Voegele first contends the trial court violated his due process rights by admitting

DeLeon’s out-of-court and in-court identifications of Voegele, arguing the single photo

identification process that Deputy Stafford used was impermissibly suggestive and

created a substantial likelihood of misidentification. We disagree.

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After a CrR 3.6 hearing, during which the trial court heard testimony from DeLeon

and Deputy Stafford, it held that DeLeon’s identification was admissible. The trial court

found that while “a single photograph may present a danger of suggestibility for the

purposes of identification, it is clear, based on the testimony, that Mr. [DeLeon] would

only agree to look at a single photograph and that there was no active effort by law

enforcement to manipulate [DeLeon] into making an identification.” The court further

found that

on the date of the charged crime, he witnessed a blonde male, whom he

would later positively identify as Defendant, arrive at the scene with a group

of associates[,] . . . he spoke with Defendant and associates for a significant

period of time, approximately 15 to 20 minutes[,] . . . his conversation was

primarily not with Defendant, but that he did speak with Defendant at some

point [,] . . . he thought the Defendant could be his friend in the future[, and]

. . . he thought he was about 15 feet away from the trailer during this

conversation.

The court also found that DeLeon “[was] strong in his memory that [Voegele] was the

person he had seen.” Lastly, the court found that DeLeon was able to reliably observe

Voegele because “only two males were present in [the] group that Mr. [DeLeon] spoke

with[, one of those being] . . . a larger man who was not Defendant, and the other was a

blonde male.” The trial court was convinced that DeLeon’s identification was “clearly

based on his memory and his own observation and his own personal knowledge,” and

not the result of any suggestibility in the identification process.

We review a trial court’s decision to admit identification evidence for abuse of

discretion. State v. Kinard, 109 Wn. App. 428, 432, 36 P.3d 573 (2001). A trial court

abuses its discretion only if (1) the decision is manifestly unreasonable, i.e., it falls outside

the range of acceptable choices, given the facts and the applicable legal standard, (2) the

decision is based on untenable grounds, i.e., the factual findings are unsupported by the

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record, or (3) the decision is based on untenable reasons, i.e., it is based on an incorrect

standard or the facts are insufficient to meet the requirements of the correct standard.

State v. Derri, 17 Wn. App. 2d 376, 392, 486 P.3d 901, review granted in part, 198 Wn.2d

1017 (2021). This court treats unchallenged findings of fact as verities on appeal and

reviews conclusions of law regarding suppression of evidence de novo. State v. Levy,

156 Wn.2d 709, 733, 132 P.3d 1076 (2006).

The validity of an identification procedure is generally a question of fact for the jury

and the identification becomes inadmissible only when its reliability is so questionable

that it cannot offset the suggestiveness of the procedure used to make the identification.

State v. Hanson, 46 Wn. App. 656, 664, 731 P.2d 1140 (1987). An out-of-court photo

identification violates due process if it is so impermissibly suggestive as to give rise to a

substantial likelihood of irreparable misidentification. State v. Vickers, 148 Wn.2d 91,

118, 59 P.3d 58 (2002). To establish a violation, Voegele bears the burden of showing

that the identification procedure was suggestive. Id. If he fails, the inquiry ends. Id. If

he proves the procedure is suggestive, then the court considers, based on the totality of

the circumstances, whether the procedure created a substantial likelihood of irreparable

misidentification. Id.

To decide if such a risk exists, a court should consider: (1) the opportunity of the

witness to view the criminal at the time of the crime, (2) the witness’s degree of attention,

(3) the accuracy of the witness’ prior description of the criminal, (4) the level of certainty

demonstrated at the confrontation, and (5) the time between the crime and the

identification. Derri, 17 Wn. App. 2d at 393 (citing Neil v. Biggers, 409 U.S. 188, 199-200,

93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)).

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Voegele does not assign error to any of the trial court’s findings of fact. Nor does

he contend the trial court based its decision on an incorrect legal standard. He appears

to argue only that the facts here were sufficient to prove that Deputy Stafford’s single

photo identification procedure was impermissibly suggestive and tainted both the out-of-

court and in-court identification.

Because the trial court properly exercised its discretion in concluding that the

identification procedure did not create a substantial likelihood of misidentification under

the Biggers factors, we need not decide whether the single photo procedure was

impermissibly suggestive. First, DeLeon had an opportunity to speak with Voegele at the

time Voegele was on his property. The record supports the trial court’s findings that

DeLeon spoke with Voegele and his acquaintances for about 15 to 20 minutes while

standing about 15 feet from the trailer. Second, even though DeLeon’s conversation with

Voegele was brief, the record supports the trial court’s finding that the interaction was

sufficient to lead DeLeon to form an opinion of Voegele as friendly and to believe they

could be friends in the future.

Third, the record also supports the trial court’s finding that DeLeon’s identification

of Voegele before seeing his photograph was consistent with Voegele’s appearance in

the photograph. Fourth, DeLeon showed a high level of certainty when he saw Voegele’s

photograph. DeLeon testified that the person in the photo was “definitely” the person he

had seen that day.

Finally, the amount of time that elapsed between the time DeLeon saw Voegele

on his property and the time he described Voegele’s physical appearance and then

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viewed the photograph was relatively short. The witnesses testified and the trial court

found that DeLeon’s photo identification occurred the same day as the crime.

Additionally, the trial court found Deputy Stafford had not manipulated DeLeon into

identifying Voegele as the person he saw that day. In Perry v. New Hampshire, 565 U.S.

228, 241, 132 S. Ct. 716, 181 L. Ed. 2d 694 (2012), the Supreme Court noted that “[a]

primary aim of excluding identification evidence obtained under unnecessarily suggestive

circumstances . . . is to deter law enforcement use of improper lineups, showups, and

photo arrays in the first place.” Here, Deputy Stafford went to DeLeon’s residence with

the intention of showing him six different photos for the identification. Only after DeLeon

refused to look at more than one photo did Deputy Stafford ask him to look at a single

photo.

The trial court properly analyzed this relevant evidence and reached a reasonable

conclusion based on the correct legal standard. 2 Derri, 17 Wn. App. 2d at 399. The trial

court’s decision to admit the out-of-court identification did not violate Voegele’s due

process rights or taint DeLeon’s subsequent in-court identification.

2. Text Messages

Voegele next contends the trial court improperly admitted the text messages

because the State failed to properly authenticate the messages as having come from

Voegele.

2 Voegele suggests a single photo identification procedure is always impermissibly suggestive and a

violation of due process. We disagree. In Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d

140 (1977), the U.S. Supreme Court rejected this argument. The court stated that a single photo

identification procedure, even if suggestive, would not be unconstitutional if it did not create a substantial

likelihood of irreparable misidentification under the Biggers factors. Id. at 116.

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This court reviews a trial court’s admission of evidence for abuse of discretion.

State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008). Under ER 901(a) “[t]he

requirement of authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” “Rule 901 does not limit the type of evidence allowed to authenticate

a document. It merely requires some evidence which is sufficient to support a finding that

the evidence in question is what [its] proponent claims it to be.” State v. Williams, 136

Wn. App. 486, 500, 150 P.3d 111 (2007) (quoting United States v. Jimenez Lopez, 873

F.2d 769, 772 (5th Cir. 1989)). ER 901(b)(1) provides that authentication is satisfied with

testimony from someone with personal knowledge that the evidence is what the State

claims it to be. 3 Kinard, 109 Wn. App. at 436.

In this case, Riddle, the person who received the text messages, testified that the

messages were part of a conversation he had with Voegele. This testimony suffices to

authenticate the texts under ER 901(b)(1).

Additionally, the content of the messages corroborated Riddle’s testimony. The

texts talked about “Kyle,” arguably a reference to the victim here, and “Tarah,” the name

of the registered owner of the green Volkswagen photographed near the burning trailer.

The messages referred to Tarah’s intent to burn down Riddle’s trailer—information

consistent with DeLeon’s testimony. The second message string explicitly stated that the

3 Voegele contends that there is a heightened level of scrutiny for authenticating text messages, as

compared to other documents, under ER 901. He cites no authority for that proposition. We have

consistently applied the same ER 901 test to text messages. See State v. Bradford, 175 Wn. App. 912,

928-29, 308 P.3d 736 (2013) (timing and content of texts indicated defendant sent them to victim and were

admissible under ER 901); In re Det. of H.N., 188 Wn. App. 744, 759, 355 P.3d 294 (2015) (text messages

admissible under ER 901(b)(10) because date, time, the sender’s name and phone number, and content

of messages provided circumstantial evidence that the statements were made by H.N.); and State v. Young,

192 Wn. App. 850, 369 P.3d 205 (2016) (witness with personal knowledge authenticated sender’s phone

number and testified the messages came from defendant, making the texts admissible under ER 901(b)(1)).

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sender had been present “and saw it happen.” The content was consistent with

eyewitness testimony placing Voegele at the scene with Tarah Mendoza.

Additionally, one of the messages refers to “Eric,” arguably a reference to Eric

DeLeon who resided on the same property as Riddle and who spoke to Voegele shortly

before the trailer fire. Finally, the timing of the text messages matches the events of that

day. The first text message, stating that Mendoza was going to “burn his house down,”

was sent to Riddle at 6:35 p.m. The fire started around 7 p.m. This evidence supports

the trial court’s conclusion that the texts were properly authenticated under ER

901(b)(10).

Even if the trial court abused its discretion in admitting the text messages, any

error stemming from that decision was harmless. To determine whether a trial court’s

abuse of discretion warrants reversal, the court applies a nonconstitutional harmless error

standard. State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986). “Where the error

is not of constitutional magnitude, we apply the rule that the ‘error is not prejudicial unless,

within reasonable probabilities, had the error not occurred, the outcome of the trial would

have been materially affected.’” Id. (quoting State v. Cunningham, 93 Wn.2d 823, 831,

613 P.2d 1139 (1980)).

While Voegele contends the text messages were key to the State’s case, the text

messages did not prove Voegele set the fire. To the contrary, the messages indicated

that Mendoza, not Voegele, set the fire. The messages placed Voegele at DeLeon’s

property immediately preceding the fire, and three eyewitnesses also placed Voegele

there that day. DeLeon stated he saw a group of people, including Voegele, on his

property that day. Nymoen stated he saw a blonde man, whom he later identified as

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Voegele, rummaging through Riddle’s trailer while splashing a clear container of liquid.

And Voegele called Mendoza to testify in his case. She, too, confirmed that she and

Voegele were at Riddle’s trailer on May 31, 2020. Based on the evidence, this court

cannot say that there is a reasonable probability the outcome of the trial would have been

different had the text messages been excluded. Any error in admitting the text messages

was harmless.

3. Spillman Database

Voegele next contends the trial court erred in admitting evidence that the Spillman

database linked his name with the phone number listed on the text messages. Voegele

argues this information was inadmissible hearsay.

We review whether a statement was hearsay de novo. State v. Heutink, 12 Wn.

App. 2d 336, 356, 458 P.3d 796 (2020). Hearsay is “a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” ER 801(c). Hearsay is not admissible unless a court rule

or statute allows it. ER 802. RCW 5.45.020 provides one such exception:

A record of an act, condition or event, shall in so far as relevant, be

competent evidence if the custodian or other qualified witness testifies to its

identity and the mode of its preparation, and if it was made in the regular

course of business, at or near the time of the act, condition or event, and if,

in the opinion of the court, the sources of information, method and time of

preparation were such as to justify its admission.

This statute does not require proof of who actually made the record. State v. Iverson,

126 Wn. App. 329, 337, 108 P.3d 799 (2005). In general, the testimony of a records

custodian will be sufficient to properly introduce the record. Id. at 338.

“The trial judge’s decision to admit or exclude business records is given great

weight and will not be reversed unless there has been a manifest abuse of discretion.”

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State v. Ziegler, 114 Wn.2d 533, 538, 789 P.2d 79 (1990). A trial court manifestly abuses

its discretion when its decision is manifestly unreasonable or based on untenable grounds

or for untenable reasons. State v. Sanders, 86 Wn. App. 466, 469, 937 P.2d 193 (1997).

This court has held that some police records may qualify as business records

under RCW 5.45.020. See Iverson, 126 Wn. App. at 339 (victim jail booking record

constituted business record to prove identity of victim named in protection order); State

v. Bradley, 17 Wn. App. 916, 918, 567 P.2d 650 (1977) (police computer printout

recording all police calls requesting police assistance admissible as business record);

State v. Bellerouche, 129 Wn. App. 912, 914, 120 P.3d 971 (2005) (trespass notice issued

by police constituted admissible business record). But not all law enforcement databases

fall within the statutory exception to the hearsay rule.

In In The Matter of the Detention of Coe, 175 Wn.2d 482, 502, 286 P.3d 29 (2012),

our Supreme Court held that data in law enforcement investigative database, maintained

to gather information about sexual assaults, contained inadmissible hearsay. In that

case, the State offered information from the database for the purpose of proving the

identity of the perpetrator of several allegedly “signature” sexual assaults. Coe, 175

Wn.2d at 488. The State argued the information about past crimes, deemed by the State

to be similar to crimes of conviction, was admissible under the business record exception.

Id. at 504-505. The Supreme Court disagreed. Id. at 505. “The business record

exception generally applies to objective records of a regularly recorded activity and not

those ‘reflecting the exercise of skill, judgment, and discretion.’” Id. (quoting 5C KARL B.

TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 803.37 (5th ed. 2007)).

The information on which the database relied included police reports containing

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subjective summaries of officers’ investigations and victims’ statements. Id. at 505. It

held the database contained inadmissible hearsay. Id. at 505-506.

The State, however, argues that the Spillman database is more like the report

deemed admissible in State v. Hines, 87 Wn. App. 98, 941 P.2d 9 (1997). In that case,

the trial court admitted a jail record containing the defendant’s social security number,

phone number, date, address, height, and weight for the purpose of proving the identity

of the defendant as the person arrested in Montana after absconding from the state with

her child. Hines, 87 Wn. App. at 101. This court affirmed, reasoning that the jail record

was a routine booking sheet with basic and objective information about the defendant,

“the routine kind of record contemplated by RCW 5.44.040 [the public records exception

to hearsay].” Id.

The name and phone number that the State obtained from the Spillman database

is not exactly analogous to either the inadmissible subjective impressions of a police

officer at issue in Coe or the admissible jail booking record at issue in Hines. Like the

database in Coe, the Spillman database is an investigatory tool used by law enforcement

agencies. According to the records custodian, the sheriff’s office maintains the names

and contact numbers of every person with whom the agency has had contact for the last

seven years. Although the records custodian verified that the phone number linked to

Voegele was entered into the system in 2016, she did not testify as to who collected or

provided the data or how the connection between the phone number and Voegele was

made. We thus do not know if the information came from Voegele himself, by virtue of a

prior arrest, jail booking, or conviction, which would make the information admissible

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under Hines, or if the information came from a third party, such as a victim, which would

make the information more analogous to the inadmissible victim statements in Coe.

We need not resolve this issue, however, because we are convinced that admitting

the evidence, even if based on an insufficient record, was harmless. The State used the

evidence to connect the phone number identified on the text messages to Voegele. But

the Spillman database was not the only evidence making this connection. Riddle testified

he received those text messages from Voegele, that he got that phone number from a

friend, and that he believed he was texting Voegele. Given that there was independent

testimony connecting the phone number to Voegele and those text messages merely

placed Voegele at the trailer and did not directly prove he committed the arson, there is

no reasonable possibility that the Spillman database evidence affected the trial outcome.

4. Statement of Additional Grounds

Finally, Voegele contends that, according to his public defender, his trial should

not have occurred when it did because all trials were supposed to be suspended due to

COVID-19. Voegele appears to suggest that the trial court violated some order or law by

holding his trial when it did.

While Whatcom County paused jury trials until November 16, 2020, this pause

pertained only to trials with twelve person juries. See Whatcom County Superior Court

Fourteenth Administrative Order (October 16, 2020). 4 If parties stipulated to a jury of six

to eight jurors, superior courts were allowed to conduct trials before November 16, 2020.

See Whatcom County Superior Court Twelfth Administrative Order (August 11, 2020) 5

(stating “will likely permit the Court to conduct jury trials with six to eight jurors. Litigants

4 https://www.whatcomcounty.us/DocumentCenter/View/51347/14th-Administrative-Order

5 https://www.whatcomcounty.us/DocumentCenter/View/49665/Twelfth-Admin-Order

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who wish to consider this alternative should contact the Court’s administrator for further

information”). Voegele waived his right to a twelve-person jury and proceeded with a six-

person jury. He made this request to expedite his trial. Given that Voegele requested a

six-person jury, the court granted this request, and his trial was authorized by superior

court administrative orders, we see no error here or any error that was not of his own

making. See State v. Rushworth, 12 Wn. App. 2d 466, 477, 458 P.3d 1192 (2020) (invited

error doctrine prohibits party from setting up error in the trial court and then complaining

of it on appeal).

Affirmed.

WE CONCUR:

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