### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 46968

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Respondent,

v. DAKOTA LAZIER, UNPUBLISHED OPINION

Appellant.
S UTTON , J.

— D akota Lazier appeals from his conviction for custodial assault. Lazier argues that (1) the trial court erred when it allowed two witnesses to testify that it appeared that
Lazier was intentionally fighting with another resident of Green Hill School , (2) the trial court
violated his S ixth and F ourteenth A mendment right to a fair trial by allowing lay opinion testimony, and (3) the trial court erred by giving a transferred intent jury instruction. Further, Lazier argues t hat (4) under the c umulative error doctrine , the multiple errors warrant a new trial

. We hold that (1) the trial court properly admitted lay opinion testimony that it appeared
that Lazier was intentionally fighting with another resident and (2) admission of the testimony did
not violate Lazier ’s constitutional right to a fair trial, and (3) the trial court ’s transferred intent instruction was proper. We further hold that (4) Lazier fails to prove any trial court error to warrant
a new trial . Ac cordi ngly, we affirm

. Filed Washington State Court of Appeals Division Two March 29, 2016No. 46968

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2 FACTS On July 8, 2014, Jason Freeze, a residential counselor at Green Hill School, 1 responded to several fights breaking out between Green Hill residents at various locations around the campus. On his way to one of the school bu ildings, Freeze witnessed and responded to a fight breaking out between two residents, Lazier and VT. 2
Freeze restrained VT as other staff attempted to restrain Lazier. Green Hill staff member s

are required to intervene when residents fight. Despite the attempts by two other Green Hill staff members, Pablo Torres, Sr. and Juan Mendez, to restrain him, Lazier freed himself , striking Freeze as he continued to swing and punch
at VT

. Lazier struck Freeze several times, twice to the upper back and should er, and twice to the
back of the head and neck. As Lazier struck him, Freeze stated twice, “Stop swinging. You’re striking staff. You’re striking me.” Verbatim Report of Proceedings ( VRP ) (November 14, 2014)
at 32

- 33, 43. The State charged Lazier with one count of custodial assault on Freeze

. At trial, defense counsel objected to Freeze’s and Torres’s testimony as speculati ve , [State]: All right . When you saw that [ Lazier ] and [VT] were fighting, did it

look like they were intentionally havin g a fight? [Defense]: Objection. [Court]: The basis for the objection? [Defense]: It’s invading the question for the jury. Also speculation. [Court]: Overruled.

1 Green Hill School is a secure “juvenile institution for the adjudicated juvenile offenders” ages 15

- 21. Verbatim Report of Proceedings (November 14, 2014) at 28.

2 We use initials to protect the privacy interests of the juvenile.No. 46968

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[State]: All right. So that means you can answer. Did it look like they were

intentionally having a fight? [Freeze]: Yes, sir.

. . . . [State]: So the fight that you saw between [ Lazier ] and [VT], did that fight look

like the two people were intending to be in a fight? [Defense]: Objection. [Torres]: Yes. [Court]: Overruled. He can answer the question. [State]: Would you like him to answer again, Your Honor, or do you think that

was sufficient? [Court]: I think that was sufficient. VRP (11/14/2014) at 30

- 31, 40. The State proposed a transferred intent instruction to which Lazier objected. Over Lazier ’s objection, t he trial court gave a transferred intent jury instruction 7, which stated,

If a person acts with intent to assault another, but the act harms a third person, the actor is also deemed to have acted with intent to assault the third person. Clerk’s Papers ( CP ) at 42. 3 Jury i nstruction 3, the definition of “ custodial assault, ” stated ,

A person commits the crime of custodial assault when he or she assaults a staff member at an adult or juvenile corrections institution or local detention facility who was performing official duties at the time of the assault.
CP at 38. Jury instruction 5, t he definition of “ simple assault, ” stated,

An assault is an intentional touching or striking of another person, with unlawful force, that is harmful or offensive regar dl ess of whether any physical injury is done to the person. A touching or strikin g is offensive if it would offend an ordinary person who is not unduly sensitive.
CP at 40. The jury convicted Lazier of the custodial assault. Lazier appeals.

3 Jury instruction 7, is identical to 11 W ASHINGTON P RACTICE : W ASHINGTON P ATTERN J URY I NSTRUCTIONS : C RIMINAL 10.01 at 204 (3 d ed. 2008).No. 46968

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4 ANALYSIS
Lazier argues that (1) the trial court erred when it allowed Freeze and Torres to testify that it appeared that Lazier and VT were fighting intentionally, (2) the admitted testimony was improper opinion that invaded the province of the jury, and (3) when combined with the improper lay opinion testimony, the trial court’s instruction on transferred intent was misleading and improper. Lazier also argues that he is entitled to a new trial under the cumulative error doctrine.
We hold that (1) the trial court properly admitted Freeze’s and Torres’s testimony, (2) the testimony did not invade the province of the jury, and (3) the transferred intent instruction was proper. Because we find that there were no errors at trial, we hold that Lazier is not entitled to a new trial

. I. O PINION T ESTIMONY A. ER 701 and 704
Lazier first argues that the trial court erred when it overruled his objections to Freeze’s and
Torres’s lay opinion testimony that it appeared to them that Lazier was intentionally fighting with
VT. We disagree.
We review a trial court’s ruling on the adm issibility of opinion evidence for abuse of
discretion. State v. Blake , 172 Wn. App. 515, 523, 298 P.3d 769 (2012). The trial court has
considerable discretion to determine if evidence is admissible. State v. Quaale  ̧ 182 Wn.2d 19 1, 196, 340 P.3d 213 (20 14). “ ‘ Where reasonable persons could take differing views regarding the propriety of the trial court’s actions, the trial court has not abused its discretion.’” Quaale , 182 Wn.2d at 196 (quoting State v. Demery , 144 Wn.2d 753, 758, 30 P.3d 1278 (2001))

. The trial court abuses its discretion when its decision is “‘manifestly unreasonable or based on untenableNo. 46968

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grounds or reasons.’” Quaale , 182 Wn.2d at 196 (quoting State v. Stenson , 132 Wn.2d 668, 701,
940 P.2d 1239 (1997)).
ER 701 permits lay testimony “in the form of opinions or inferences” that are “rationally
based o n the perception of the witness” and “helpful to a clear understanding of the witness’ [ s ] testimony or the determination of a fact in issue.” ER 701. Opinion testimony is not i mproper or objectionable because it “embraces an ultimate issue to be decided by the trier of fact.” ER 704. Testimony based on inferences from the evidence is not improper. Blake , 172 Wn. App. at 523.
ER 701 “gives the trial court considerable discret ion to focus the attention where it belongs

— on what the witness know s, not how the witness is expressing himself or herself.” 5D K ARL B.
T EGLAND , W ASHINGTON P RACTICE : C OURTROOM H ANDBOOK ON W ASHINGTON E VIDENCE ch.5 at 315 (2015

- 2016 ed.).
B oth Freeze a nd Torres testified about what they saw regarding the fight between Lazier
and V T on July 8, 2014. In response to the State’s questions, Freeze and Torres testified that they

saw Lazier and VT fighting and that from their observations, it appeared the two were fighting intentionally. Their statements were a first

- hand account of their impressions of the fight. See
State v. Cole , 117 Wn. App. 870, 878, 73 P.3d 411 (2003) (stating that testimony based on first

hand knowledge was not improper opinion testim ony). Each testified that they saw Lazier throwing punches and yelling, and that , after staff attempted to restrain him, Lazier continued to swing at VT.
The State did not ask Freeze and Torres to opine about whether Lazier was guilty of assault,
but r ather sought to clarify that Lazier was not caught in the mi ddle of a fight simply by his proximity to it

. Freeze’s and Torres’s first

- ha nd observation s of the fight w ere admissible layNo. 46968

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opinion testimony under ER 701

. Thus, t he trial court did not abuse its discretion by admitting this testimony , and Lazier ’s argument fails.
B. Constitutional Error
Lazier argues that the admission of Freeze’s and Torres’s improper lay opinion testimony violated his constitutional right to a fair trial. 4 We disagree. Generally, we do not consider an issue raise d for the first time on appeal unless it is a
manifest constitutional error affect ing a constitutional right . RAP 2.5(a); State v. Gentry , 183 Wn.2d 749, 760, 356 P.3d 714 (2015); State v. Kirkman , 159 Wn.2d 918, 926, 155 P.3d 125 (2007).
The defendant must identify a constitutional error and show how the alleged error prejudiced the defendant’s rights at trial. Kirkman , 159 Wn.2d at 926

- 27. A showing of actual prejudice is
requ ired. Kirkman , 159 Wn.2d at 927 (citing State v

. McFarland , 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) )

. A witness’s opinion on guilt, whether directly or by inference, is improper, invades the jury’s independent determination of the facts , and violates the defendant’s constitutional rights. Quaale , 182 Wn.2d at 197; State v. Farr

- Lenzini , 93 Wn. App. 453, 460, 970 P.2d 313 (1999 )

. “‘The fact that an opinion supports a finding of guilt . . . does not make the opinion improper.’”
Blake , 17 2 Wn. App. at 523 (alteration in original) (quoting State v. Collins , 152 Wn. App. 429, 436, 216 P.3d 463 (2009) )

. “Whether testimony constitutes an impermissible opinion about the
defe ndant’s g uilt depends on the circumstances of the case, including (1) the type of witness

4 Here, a t trial , defense counsel did not object to Freeze’s or Torres’s testimony on constitutional grounds, but argued that their testimony was speculative. Therefore, we review this new argument under a manifest constitutional error standard under RAP 2.5(a)(3).No. 46968

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involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact.” State v. Hudson , 150 Wn. App . 646,
653 , 208 P.3d 1236 (2009) (citing Stat e v. Montgomery , 163 Wn.2d 557, 591, 183 P.3d 267 (2008) )

. However, it is not improper opinion testimony if it “ ‘ is based on inferences from the
evidence , ’ ” supports a finding of guilt , or embraces an ultimate issue but is otherwise admissible

. Blake , 172 Wn. App. at 523 (quoting City of Seattle v. Heatley , 70 Wn. App. 573, 577, 854 P.2d 658 (1993))

. In Quaale , our Supreme Court held that a trooper’s statement that “[t]here was no doubt [the defendant] was impaired,” was an improper opinion on the cor e issue and the only disputed element during the defendant’s trial for attempting to elude a police vehicle and felony DUI. Because it was an improper comment on guilt , the Supreme Court held that the error was not harmless beyond a reasonable doubt. Qua ale , 182 Wn.2d at 195, 200. As we analyzed above, Freeze’s and Torres’s testimony was not improper lay opinion testimony. Freeze and Torres both testified that, as they came up on the fight, it appeared that
Lazier was “intentionally having a fight,” t hat Lazier and VT looked like they “were intending to be in a fight,” and that Lazier appeared to be intentionally throwing punches at VT

. VRP (11/14/2014) at 30, 40. T heir testimony regarding the fight wa s based on their observations and impressions, and was not a direct comment on Lazier ’s state of mind or guilt in the alleged
custodial assault.No. 46968

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Even if Freeze’s and Torres’s testimony w ere improper, there was substantial evidence outside of the disputed lay op inion testimony to support a reasonable jury’s finding of guilt. Both testified that they saw Lazier throwing punches and yelling at VT, and Torres testified that Lazier continued to throw punches and struck Freeze several times while other staff members were trying
to restrain Lazier

. Both Freeze and Torres testified that Freeze had instructed Lazier to stop hitting him, and informed Lazier that he was hitting staff. And even if the trial court erred , the error was harmless. Thus, Lazier fails to show that any error regarding the lay opinion testimony constitutes a manifest constitutional error and his argument fails.
II. J URY I NSTRUCTIONS Lazier argues that the trial court erred when it gave jury instruction 7 on transferred intent , and that when co mbined with the improper lay opinion testimony, the instruction was misleading. We disagree. “Jury instructions are generally sufficient if they are supported by the evidence, allow each party to argue its theory of the case, and when read as a whole, properly inform the trier of fact of the applicable law. ” Fergen v. Sestero , 182 Wn.2d 794, 803, 346 P.3d 708 (2015) ; see also , S tate v. Knutz , 161 Wn. App. 395, 403, 253 P.3d 437 (2011)

. We review challenged jury instructions
de novo , evaluating the jur y instruction “‘in the context of the instructions as a whole.’” Knutz , 161 Wn. App. at 403 (quoting State v. Benn , 120 Wn.2d 631, 654

- 55, 845 P.2d 289 (1993)). The State charged Lazier with custodial assault under RCW 9A.36.100(1), which provides, in pa rt, (1) A person is guilty of custodial assault if that person is not guilty of an assault in the first or second degree and where the person:No. 46968

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9 (a) Assaults a full or part

- time staff member or volunteer, any educational personnel, any personal service pr ovider, or any vendor or agent thereof at any juvenile corrections institution or local juvenile detention facilities who was performing official du ties at the time of the assault[.] RCW 9A.36.100(1)(a). To convict Lazier of custodial assault, the jury had to find that, in addit ion to the other elements, Lazier assaulted Freeze. The common law recognizes three definitions of
assault , “ ‘ attempted battery, ’ ” “ ‘ actual battery, ’ ” and “ ‘ common law assault. ’ ” State v. Wilson , 125 Wn.2d 212, 218, 883 P.2d 320 (1994) (quoting State v. Bland , 71 Wn. App

. 345, 353, 860 P.2d 1046 (1993)). Actual battery is “ ‘ an unlawful touch ing with criminal intent, ’ ” and c ommon law assault occurs when the defendant “put[s] another in apprehensi on of harm whether or not the [the defendant] intends to inflict or is capable of inflicting that harm.” Wilson , 125 Wn.2d at 218 (quoting Bland , 71 Wn. App. at 535)

. Neither the custodial assault statute nor the common law require proof that Lazier ha d specific intent to assault Freeze. See State v. Elmi , 166 Wn.2d 209, 215, 207 P.3d 439 (2009) (stating that the defendant only need the intent to produce a specific result, and need not have a specific victim); see also Wilson , 125 Wn.2d at 218

- 19. Und er the transferred intent doctrine, once the defendant forms the intent to inflict harm on a first victim, the mens rea transfers to any other inadvertent victim harmed by that intent. Wilson , 12 5 Wn.2d at 218; State v. Clinton , 25 Wn. App. 400, 403, 606 P.2d 1240 (1980).No. 46968

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Here, the trial court instructed the jury that, to convict Lazier , it had to find that he assaulted Freeze while Freeze was performing his normal duties. The court’s instructions defined assault and gave the tran sferred intent instruction because the fight initially started between Lazier and VT, and the evidence supported that Lazier was swinging at VT, and did so with the purpose of harming him.
Torres testified that Lazier and VT were in a fight, Lazier was “a ggressively yelling” at VT
and continued swinging and yell ing at VT after Torres attempted to restrain him. VRP (11/14/2014) at 40 . Torres and Freeze testified that Freeze stated, “Stop fighting. You’re hitting
staff , ” as Lazier struck him “at least f our” times in the back and around the head and neck

. VRP (11/14/2014) at 32

- 33 , 43. The evidence supported the transferred intent instruction and the instruction properly stated the law given the context of the instructions as a whole

. Thus, the
instruc tion was proper.
III. C UMULATIVE E RROR The cumulative error doctrine applies where several errors affect a trial that, when standing alone, may not be sufficient to justify reversal. State v. Greiff , 141 Wn.2d 910, 929, 10 P .3d 390 (2000). The doctrine requires reversal where the combination of errors denied the defendant a fair
trial. Greiff

, 141 Wn.2d at 929. But when there are few or no errors, and the errors, if any, have little to no effect on the outcome of trial, re versal is not required. State v. Weber , 159 Wn.2d 252, 279, 149 P.3d 646 (2006). Because there are no errors, Lazier is not entitled to a new trial

. CONCLUSION
We hold that (1) the trial court properly admitted lay opinion testimony that it appeared
that Lazier was intentionally fighting with VT , (2) the admission of the lay opinion testimony didNo. 46968

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not violate Lazier ’s constitutional right to a fair trial, and (3) the trial court ’s transferred intent instruction was proper. We further hold that ( 4) Laz ier fails to prove any trial court error to warrant a new trial. Accordingly, we affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordanc e with RCW 2.06.040,
it is so ordered.

SUTTON, J. We concur:

BJORGEN, A.C.J.

MELNICK, J.