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State v. Tarau

March 31, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
JONATHAN IOAN TARAU, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-1-04992-1. Date filed: 05/02/95. Judge signing: Hon. Linda Lau.

PER CURIAM. Jonathan Tarau appeals from his convictions for forgery and second degree possession of stolen property (PSP). Tarau argues the trial court erred by not suppressing a photo montage and in-court identifications of Tarau as the offender. He also contends he was denied a fair trial because the court failed to specify the item of stolen property in the "to-convict" instruction for PSP, and that trial counsel was ineffective for failing to request the instruction. Because the identification procedure was not improperly suggestive, the trial court did not err in admitting the montage and in-court identifications. Because the "to-convict" instruction was invited by Tarau, he cannot challenge it; in any event, the instruction was not erroneous. We affirm.

The offenses with which Tarau was charged stemmed from his possession and use of stolen credit cards belonging to Robert Rolfe. Rolfe testified he had last seen his Discover and Visa cards about the first week of June, 1994. He gave no one permission to use or possess the cards. On June 15, 1994, Sears clerk Robert Messmer waited on Tarau, who aroused Messmer's suspicion by acting as if he wanted to hurry through the sale of a camcorder, hesitating in providing a phone number and address, providing a Marysville phone number and a Bellevue address, and not having identification in the customary wallet location.

Tarau handed Messmer a Discover card bearing the name Robert Rolfe.

He signed the sales receipt and Messmer noticed the signature did not match that on the back of the card. Messmer directed Tarau to the customer pick-up area and notified clerks there he was investigating a possible fraud.

He called the loss prevention department, gave Robert Noll the Discover card number and asked him to check its status.

While waiting for verification from Noll, Messmer told Tarau they would have to reenter the transaction. They returned to the cash register and Tarau again presented the Discover card. Messmer asked for photo identification, and Tarau asked if a Visa card would do. He then presented a Visa card bearing the name Robert Rolfe. Messmer took both cards and Tarau again signed the Discover card receipt. Tarau asked if presenting his check book would assist the transaction and Messmer said it would.

Tarau then wanted to leave the store and asked for the credit cards.

Messmer told Tarau he needed the cards pending approval of the sale. Tarau then left without the cards. Messmer turned them over to loss prevention.

Loss prevention officer Noll observed Tarau via closed circuit television when he spoke with Messmer. He called Discover security to see whether the card was stolen. He watched Tarau on the television for about a minute. Noll went to the sales floor and observed Tarau with Messmer.

He then left the store to await confirmation from Discover.

Shortly thereafter, Tarau left the store. Noll saw him from about 50 feet away. Tarau entered his vehicle; about that time, Noll received word that the Discover card was stolen. He ran toward Tarau's car, but Tarau drove off before Noll got closer than 200 yards.

The police showed Messmer and Noll a six-person photo montage about one month later. Each man picked Tarau's photo as depicting the man who had presented Rolfe's credit cards. Both Messmer and Noll also identified Tarau in court.

Tarau moved to suppress the montage and identifications. The trial court denied the motion, finding, among other things, that Messmer was with Tarau about 30 minutes, that Tarau's recessed chin is a distinguishing facial feature, and that the appearance of the other five men depicted ...


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