State Of Washington v. Earl A. Polley, 48289-4

Background

On March 18, 2015 a backpack was found in Doreen Silvernail’s garage containing checks, W‑2s, IDs, Social Security cards, and mail belonging to numerous people; Silvernail believed it belonged to her nephew, Earl Polley.
Silvernail called a number provided by Polley’s father; the number replied by text confirming the backpack and acknowledging intent to retrieve it.
Police recovered documents linking at least 12 non‑related victims to the backpack; multiple victims testified they never gave Polley permission to possess or use their information.
Polley was arrested March 27 while driving on a suspended license; he denied the texts and possession of the backpack at trial and testified in his defense.
Charged convictions: ten counts of second‑degree identity theft, one count of forgery, and one count of third‑degree driving with a suspended license (the driving charge is not contested on appeal).
Post‑verdict defense counsel received an allegation that juror 11 had been seen intoxicated; counsel made a record but no further inquiry occurred. Polley appealed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Polley)	Held
Admissibility of text messages	Texts were authenticated by aunt’s testimony that number came from Polley’s father and content corroborated ownership; prima facie foundation satisfied.	Texts lacked proper ER 901 foundation tying the sender to Polley; admission was prejudicial.	Court: admission was not an abuse of discretion; foundation met and disputes go to weight.
Exclusion of other‑suspect evidence (Espinoza/Thorsness)	Evidence was speculative and did not create a nonspeculative link to another perpetrator; exclusion proper.	Evidence would have connected others to the backpack and created reasonable doubt.	Court: exclusion proper; proffered evidence did not tend to create reasonable doubt as to Polley’s guilt.
Sufficiency of evidence for identity theft and forgery	Testimony and physical evidence (backpack contents, texts, arrest statements, victims’ denials) permit rational juror to find possession and intent beyond a reasonable doubt.	State failed to prove Polley possessed the backpack/items or intended to commit crime; no forensic link (prints/DNA) to Polley.	Court: evidence sufficient for convictions of second‑degree identity theft and forgery.
Alleged juror misconduct / ineffective assistance for failing to move for mistrial or voir dire	Trial court and counsel observed juror; investigation/disposition of misconduct is discretionary; counsel’s failure did not prejudice Polley.	Trial court should have inquired and counsel should have moved for mistrial or voir dire; failure was ineffective assistance.	Court: no abuse of discretion for not investigating; ineffective‑assistance claim fails because Polley did not show prejudice.

Key Cases Cited

State v. Franklin, 180 Wn.2d 371 (2014) (standard for admissibility of other‑suspect evidence; must tend to connect another person and create reasonable doubt)
State v. Young, 192 Wn. App. 850 (2016) (text messages may be authenticated by recipient’s knowledge of number and corroborating content)
In re Det. of H.N., 188 Wn. App. 744 (2015) (applying ER 901(b)(10) to electronic communications authentication)
State v. Salinas, 119 Wn.2d 192 (1992) (sufficiency review: evidence viewed in light most favorable to the State)
State v. Starbuck, 189 Wn. App. 740 (2015) (defendant’s right to present a defense does not permit admission of irrelevant or inadmissible evidence)
State v. Dye, 178 Wn.2d 541 (2013) (harmless‑beyond‑a‑reasonable‑doubt rule for constitutional evidentiary errors)
State v. Rehak, 67 Wn. App. 157 (1992) (possibility another person committed the crime is insufficient to admit other‑suspect evidence)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance test: deficient performance and prejudice)
State v. McFarland, 127 Wn.2d 322 (1995) (prejudice prong requires reasonable probability of different outcome)
State v. Hendrickson, 129 Wn.2d 61 (1996) (failure to establish either deficiency or prejudice defeats ineffective assistance claim)
State v. Jorden, 103 Wn. App. 221 (2000) (trial court has discretion regarding investigation of juror misconduct)
Turner v. Stime, 153 Wn. App. 581 (2009) (trial court’s broad discretion in resolving juror‑misconduct allegations)