State v. Vandesteeg
| Decision Date | 11 January 2021 |
| Docket Number | No. 79802-2-I,79802-2-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. STEVEN NICKOLAS VANDESTEEG, Appellant. |
UNPUBLISHED OPINION
CHUN, J. — The State charged Steven Vandesteeg with theft of a motor vehicle and possession of a stolen vehicle. The trial court severed the charges and conducted a jury trial for the theft charge and a bench trial for the possession charge. A jury found Vandesteeg guilty of theft, and the trial court found him guilty of possession of a stolen vehicle. We affirm.
Early one morning in the late summer of 2018, Loi Pham discovered that a white Acura Legend, which his father left with him, was missing from his driveway. His wife, Kelly Pham, woke around the same time and saw a notification from their NEST security camera on her phone. Review of the security camera footage showed two men getting into the car and driving it away. Pham1 reported the stolen car to the police. Bellevue Police Officer JustinCooper arrived, watched the tape, and saw that the theft occurred around 4:30 a.m.
Later the same morning, Officer Cooper received a call about another car theft in the same neighborhood. Chang Du reported that his red Acura Integra was missing. He last saw the car around 11:00 p.m. the night before.
As part of his investigation, Officer Cooper went to a Shell service station close to both Pham's and Du's homes and asked to view their security footage. The footage showed a white Acura and a red Honda pulling into the station at 4:36 a.m. The white Acura had the same features as the one stolen from Pham. The two cars stopped, and the driver of the red Honda got into the passenger seat of the white Acura; the two drivers looked like the men on the NEST camera footage. The white Acura left the Shell station.
The Shell station footage also showed a red Acura with the same features as the stolen one pull into the station later the same morning. Two men, who looked like the men in the white Acura earlier that morning, got out of the red Acura. A cashier saw the two men enter the store, and one used the Shell station phone. Around 7:00 a.m., an American Automobile Association (AAA) tow truck arrived and towed the red Honda away. The two men got into the red Acura and left with the tow truck.
Bellevue Police Detective Jeffery Christiansen contacted AAA and requested the address where the red Honda was towed. AAA gave him a Kent address. A Bellevue Police Special Operations Group went to the address the same afternoon. A red Honda was parked at the address when the officersarrived. The two suspects drove up in the red Acura. Officers later identified the driver as Collin O'Neill and the passenger as Vandesteeg. They appeared to be the men on the Shell station footage and the NEST camera footage. The red Acura no longer had a license plate on the outside; instead it had a temporary trip permit affixed to the window.
The officers arrested the suspects and conducted a search incident to arrest; on Vandesteeg they found a key ring of shaved keys, commonly used by tow truck drivers to unlock and start cars. A detective sergeant recovered the white Acura the same day in Newport Hills.
The State charged Vandesteeg with theft of a motor vehicle for the white Acura and possession of a stolen vehicle for the red Acura. The trial court severed the charges. Vandesteeg chose a jury trial on the theft charge and a bench trial on the possession charge. The trial court excluded evidence of the red Acura during the jury trial.
Before the jury trial, Vandesteeg moved in limine to exclude evidence of the shaved keys found in his possession. The trial court denied the motion but ruled that the State could not offer testimony that the keys were used to steal the white Acura.
During trial, the State introduced the NEST security camera footage of Pham's driveway, which depicted two men matching O'Neill's and Vandesteeg's appearance taking the white Acura out of the driveway. The State introduced theShell station footage showing a man—who looked similar to one of the men on the NEST footage and similar to Vandesteeg—driving the white Acura. The footage also showed a man—who looked similar to the other man from the NEST footage and similar to O'Neill—getting into the white Acura. The State also introduced a photograph of Vandesteeg on the day of his arrest, depicting the similarities in his appearance to the driver of the white Acura on the Shell station footage.
While testifying, both Detective Daniel Finan and Officer Cooper mentioned the existence of another stolen vehicle. Vandesteeg moved for a mistrial both times, claiming a violation of the trial court's order and that this testimony prejudicially suggested that he was involved in more than one theft. The court denied the motions but instructed the jury to disregard the comments. Also, Detective Jeffrey Christiansen testified that O'Neill had "suspected methamphetamine" on him at the time of arrest. Vandesteeg moved for a mistrial for a third time, which motion the trial court denied, noting that O'Neill's possession of drugs did not prejudice Vandesteeg. A jury found Vandesteeg guilty of theft of a motor vehicle.
Before the bench trial, while Vandesteeg was in jail, the State moved to obtain his fingerprints to compare them to ones found on the temporary trip permit from the red Acura. The trial court granted the motion over Vandesteeg's objection. Vandesteeg moved again to exclude the shaved keys, which motion the trial court denied.
During trial, the State introduced the Shell station footage showing two men who looked similar to the men in the white Acura earlier that morning, getting out of the red Acura. An officer testified that O'Neill and Vandesteeg drove up to the Kent address in the stolen red Acura. Also, Bellevue Police forensic technician, Aleah Moe, testified that she processed the temporary trip permit from the red Acura and identified fingerprints and palm-prints matching Vandesteeg's. The court found Vandesteeg guilty of possession of a stolen motor vehicle.
Vandesteeg appeals both convictions.
Vandesteeg says that the trial court erred by admitting evidence of the shaved keys in his possession. He contends that they constitute improper propensity evidence under ER 404(b) and should have been excluded. And he asserts that the trial court failed to conduct an ER 404(b) analysis on the record. The State counters that the shaved keys were "inextricably linked" to the charges and thus possession of the keys was not a prior bad act under ER 404(b). We conclude that any error was harmless.
If the trial court improperly admitted evidence, we analyze whether the error was harmless. State v. Dillon, 12 Wn. App. 2d 133, 146, 456 P.3d 1199, review denied, 195 Wn.2d 1022, 464 P.3d 198 (2020). We apply the non-constitutional harmless error standard and ask "whether there is a reasonable probability that, without the error, 'the outcome of the trial would have beenmaterially affected.'" State v. Gower, 179 Wn.2d 851, 854, 321 P.3d 1178 (2014) (quoting State v. Gresham, 173 Wn.2d 405, 433, 269 P.3d 207 (2012)).
The abundance of other evidence in the two trials shows that the outcome of the trials would have been the same without the shaved keys. During the jury trial on the theft charge2 the State introduced the NEST security camera footage showing a man who looked like Vandesteeg taking the white Acura out of Pham's driveway. The man's appearance matched a photograph taken of Vandesteeg at the time of arrest, the same day as the theft. The State also introduced security camera footage of a man driving a white Acura into the Shell station who, from inside the car, had a similar appearance as one of the men on the NEST camera footage and as Vandesteeg on the day of arrest. During the bench trial on the possession charge,3 the State introduced security camera footage of a man who looked like Vandesteeg getting into the red Acura. And Vandesteeg was arrested getting out of the red Acura later that day. A forensic technician testified that finger and palm prints found on the temporary trip permit in the red Acura matched Vandesteeg's. To be sure, if the court did err, the error was harmless.
Vandesteeg says that the trial court instructed the jury on uncharged and unsupported alternative means for the theft charge in violation of hisconstitutional rights. He claims that jury instructions 9, 10, and 11 violated his right to be informed of the charges against him under the Sixth Amendment to the United States Constitution and article I, section 22 of the state constitution, and his right to a unanimous jury under article I, section 21 of the state constitution. The State responds that Vandesteeg invited the claimed error as to jury instruction 9 and otherwise waived his objections. We agree with the State.4
"Under the doctrine of invited error, a party may not request an instruction and then later complain on appeal that the instruction was given, even if the error is of a constitutional magnitude." City of Seattle v. Patu, 108 Wn. App. 364, 374, 30 P.3d 522 (2001), aff'd, 147 Wn.2d 717, 58 P.3d 273 (2002); see also State v. Winings, 126 Wn. App. 75, 89, 107 P.3d 141 (2005) (); State v. Noel, 51 Wn. App. 436, 439, 753 P.2d 1017 (1988) ().
Also, we "may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a); State v. O'Hara, 167 Wn.2d 91, 97-98, 217 P.3d 756 (2009), as...
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