IN THE COURT OF APPEALS OF THE STATE OF W.

DIVISION II

STATE OF WASHINGTON,

Respondent,

a

STEPHEN K. LEWIS,

Appellant.

F11-ED

COURT OF APPrAl -S

DIVISJOt411

2013 JU4 - 9 Ali 9; 09

FIIN

ST

O 

T

MY\ PY

1EP

No. 42525 -4 -II

UNPUBLISHED OPINION

BJORGEN J. — Following a bench trial, the trial court found Stephen Lewis guilty of

failure to register as a sex offender. Lewis appeals his conviction, asserting that the trial court

erred by (1) permitting witnesses to testify as to their opinion of whether he resided at his

registered address and (2) permitting a witness to testify as to her opinion about another

witness'scredibility. In his statement of additional grounds for review (SAG),' Lewis asserts

that (1) he was subjected to an unlawful search when law enforcement officers conducted a home

visit while he was in police custody, (2) his defense counsel was ineffective for failing to move

for a suppression hearing, and (3) the prosecutor committed misconduct by pursuing charges

based on evidence seized in an illegal search. In his SAG Lewis also repeats his appellate

counsel's arguments regarding the trial court's admission of opinion testimony.

We hold that the trial court did not err in admitting the witnesses' opinions whether

Lewis resided at his registered address and, alternatively, that ifthe court did err by admitting

these opinions, any error was harmless. We also hold that Lewis has failed to preserve for

RAP 10.10.
No. 42525 -4 -II

appeal his challenge to testimony he claims constituted an improper opinion on another witness's

credibility. Finally, we hold that Lewis's SAG arguments lack merit, and we affirm his

conviction.

FACTS

In 2001 Lewis was convicted of second degree assault with sexual motivation, which

triggered the sex offender registration requirements of RCW 9A. 130. 44On August 20, 2007,

Lewis completed a sex offender "full registration packet" with the Pierce County Sheriff's

Department Sex Offender Registration Unit, which packet included a change of address form, a

booking identification sheet, and a copy of state sex offender registration laws signed by Lewis.

Report of Proceedings (RP) at 36. On that same date, Lewis also signed a separate form that

indicated he understood the sex offender registration laws.

On December 11, 2009, Lewis registered a change of address to 1422 South Washington

Street in Tacoma. Rachel Eschenfelder rented the home at that address and lived there with her

three children. Rodron Neal, Lewis'slongtime friend and Eschenfelder'sboyfriend, also lived at

the home. Neal - was subject to a drug offender sentencing alternative sentence - and -

received permission from his community corrections officer, Kelly Anne Stave, to have Lewis

reside in the home. Lewis also received permission from his community corrections officer,

Michael Monahan, to live at Eschenfelder'shome. Monahan ended his supervision of Lewis in

January of 2010, and Pamela Bohon became Lewis's new community corrections officer.

On February 17, 2010, Bohon went to Lewis'sregistered address to verify that he was

residing there. Lewis was not at the home when Bohon arrived, but Neal showed her the

basement of the home where he claimed Lewis slept. Bohon saw a couch in the basement, but

2
No. 42525 -4 -II

did not see any bed, dresser or clothes. Bohon also did not recall seeing any personal effects or

toiletry items in the basement. On March 24, Bohon again attempted to contact Lewis at his

registered address, but Lewis was not present at the home when she arrived.

Between December 11, 2009 and April 12, 2010, Stave, the community corrections

officer supervising Neal, visited with him at the home on at least four occasions. She did not see

Lewis at the residence during any of her visits.

On April 14, 2010, Tacoma Police Sergeant Jennifer Mueller and Tacoma Police

Detective William Foster went to Lewis'sregistered address to verify that he was residing there.

Eschenfelder told Mueller that Lewis was not residing at the house but allowed Mueller to look

in the basement, the area of the house Eschenfelder said Lewis would have been staying in if he

had lived there. Mueller saw a couch and a suitcase in the basement, but did not see a bed,

closet, personal effects, toiletries, or "anything that would lead [her] to believe somebody was

living there." RP at 78. Although Mueller saw a basement door that led to the outside of the

home, she noticed that the door could not be opened from the outside.

The. State charged Lewis by amended information failureregister as a sex - -

offender during the period of December 11, 2009 to April 12, 2010.

Before trial, Lewis moved in limine to exclude testimony from the State's witnesses

giving their opinion that he did not reside at his registered address. The trial court declined to

rule on Lewis's motion before trial, indicating that it would take up the issue during trial and

outside the presence ofthe jury. Shortly before jury selection was to begin, Lewis indicated that

he wanted to waive his jury trial right, and the trial court proceeded to a bench trial. When the

subject of Lewis's motion came up at trial, the trial court denied the motion, stating:

3
No. 42525 -4 -II

I did read the two cases that were cited by [defense counsel] in his motion in

limine.... [ O]ne of the cases dealt with redacting something that was said during

an interview with the defendant and the officer's comments about —Ithink the

credibility of the defendant. The other one had to do with an expert witness'

opinion in regards to a rape case as to rendering an opinion regarding him making

a reference, I think, as to whether or not there had been a rape that had occurred

based on his exam. I just don'tfind those applicable to this particular case.

I think the officers who went to the scene, i.e., this house that was listed as

his residence, can observe —can testify as to what they observed. Again, I'll

allow counsel to object, but if proper foundation is, in fact, laid, they can render

an issue [sic] as to whether they believe the defendant was living there or not.

What weight I give to that opinion obviously is based on the Court's discretion in

observing what weight that any jury would give to a witness'- testimony.

RP at 68 -70.

At trial, Eschenfelder testified that Lewis never resided at her home, that he never stayed

overnight, and that he never stayed at the house while she was present. Although Eschenfelder

stated that Lewis did not reside at her home, she testified that she had allowed him to receive

mail at her address and that she had allowed him to store a suitcase in her home. Eschenfelder

also testified that it would have been impossible for Lewis to have resided at her home and for

her not to have seen him there.

Neal testified that he - gave Lewis permission to reside at the house with the - condition that - -

Lewis not stay at the house when he was not present. Neal also testified that he worked five to

six days a week, from noon until 8:00 p.m., and that he worked three days a week, from 10:00

p.m. until 6:00 a.m., at a second job. Neal stated that he gave Lewis a key to the house and that

Lewis would always call him before coming to the house. Neal also stated that Lewis did not

pay rent and rarely stayed at the house on weekends. Finally, Neal testified that Eschenfelder

knew Lewis was sleeping in the basement but that she "never really saw him" at the house. RP

at 227 -28.

M
No. 42525 -4 -II

Lewis testified that he lived at his registered address from December 11, 2009 until

returning to custody on April 13, 2010. Lewis stated that he lived in the home's basement on a

couch and that he brought only a single suitcase containing clothing and shoes with him when he

moved into the home. Lewis also stated that he would always call Neal before going to the

house and that he stayed at the house at least five days a week. When confronted about

Eschenfelder'stestimony, Lewis stated that she had lied.

The trial court found Lewis guilty of failure to register as a sex offender and sentenced

him to 43 months of incarceration to be served concurrently with a conviction out of the King

County Superior Court. The trial court'sfindings of fact and conclusions of law indicate that the

trial court found that Mueller, Bohon, Stave, and Eschenfelder were credible witnesses and that

Neal and Lewis were not credible witnesses. The trial court'sfindings also noted.that "Mueller

made a finding that defendant had absconded," and that ` Bohon concluded that defendant did not

reside at 1422 South Washington Street." Clerk's Papers at 51 -52. Lewis timely appeals his

conviction.

ANALYSIS

I. OPINION TESTIMONY

Lewis first contends that the trial court improperly admitted opinion testimony from a

police officer and two community corrections officers that Lewis was guilty of failing to register

as a sex offender. These opinions of guilt were presented, Lewis argues, through those

witnesses' opinions that Lewis did not reside at his registered address. Although the State

conceded that the trial court erred by admitting the challenged opinion testimony, we disagree

5
No. 42525 -4 -II

with the State's concession and hold that the trial court properly admitted the witnesses'

testimony as to whether Lewis resided at the address.

We review a trial court's decision to admit opinion testimony for an abuse of discretion.

State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992). Generally, no witness, lay or expert,

may "`testify to his opinion as to the guilt of a defendant, whether by direct statement or

inference. "' City ofSeattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993) (quoting

State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987)). However, testimony is not improper

as this sort of opinion if it "is not a direct comment on the defendant'sguilt or on the veracity of

a witness, is otherwise helpful to the [fact finder], and is based on inferences from the evidence."

Heatley, 70 Wn. App. at 578. In addition, opinion testimony is not improper merely because it

involves ultimate factual issues. Heatley, 70 Wn. App. at 578; see also State v. Montgomery,

163 Wn.2d 577, 590, 183 P.3d 267 (2008) (mere fact that opinion testimony addresses an issue

that the jury has to pass upon does not call for automatic exclusion ofthe testimony). Lay

witnesses may give opinions or inferences based upon rational perceptions that help the fact

finder understand the witness'stestimony when the testimony is not based on scientific or -

specialized knowledge. Montgomery, 163 Wn.2d at 591. In this manner, a witness may express

an opinion on an ultimate issue of fact so long as the witness does not tell the fact finder what

result to reach. Montgomery, 163 Wn.2d at 590 -91.

Whether testimony constitutes an impermissible opinion on the guilt ofthe defendant or a

permissible opinion embracing an "ultimate issue" will generally depend on the specific

circumstances of each case, including the type.of witness involved, the specific nature ofthe

testimony, the nature of the charges, the type of defense, and the other evidence before the trier
No. 42525 -4 -II

of fact. Heatley, 70 Wn. App. at 579. We afford the trial court broad discretion to determine the

admissibility of ultimate issue testimony. Heatley, 70 Wn. App. at 579. However, "expressions

of personal belief, as to the guilt ofthe defendant, the intent ofthe accused, or the veracity of

witnesses" are clearly inappropriate opinion testimony in a criminal trial. Montgomery, 163

Wn.2d at 591.

Here, the State asked Mueller what she had observed in the basement room where Lewis

claimed to have been living. Mueller replied that she saw a couch and suitcase but did not see a

bed, closet, personal effects, toiletries, or "anything that would lead [her] to believe somebody

was living there." RP at 78. The State then asked Mueller:

Now, Sergeant, based upon your training and experience— without indicating

what your opinion may ultimately be —as well as your personal observations of

the residence, at the end of your time at 1422 South Washington that day, did you

ultimately form an opinion as to whether or not the defendant was residing there?

RP at 79. Following defense counsel's overruled objection, Mueller answered that she did form

an opinion. The State then asked Mueller what her opinion was, and she responded, "That he

was not residing at the residence." RP at 80.

Bohon similarly testified about what she had observed in the basement, stating that she

saw a couch but did not see a bed, dresser, or clothes. The State then elicited the following

testimony from Bohon:

State]: Now, based upon your training and your experience and your

observations of the residence and your interactions with the defendant, without

indicating what it was, did you form an opinion as to whether or not the defendant

was residing at that location?

Bohon]: Yes, I did.

7
No. 42525 -4 -II

State]: What was that opinion?

Bohon]: Very unlikely that he was living there.

RP at 112 -13.

Stave testified regarding her numerous visits with Neal at his home and indicated that she

did not see Lewis at the home during any of her visits. The State then asked Stave the following:

State]: Officer Stave, did you form an opinion — without telling me what it

was =based upon your training and experience as a CCO, as well as your

observations of the home as to who was residing at that Washington Street

address?

Stave]: Yes.

State]: What was that opinion?

Stave]: My opinion was that it was Mr. Neal and his girlfriend and their

children.

State]: And was it your opinion, did anyone else reside at that house in

addition to the parties you've just mentioned?

Stave]: No.

RP 144 -45.

Although these statements clearly touch on an ultimate factual issue, they are not direct

comments on Lewis's guilt, his intent, or the veracity of any witness. As stated in Heatley:

The fact that an opinion encompassing ultimate factual issues supports the

conclusion that the defendant is guilty does not - make the testimony an improper -

opinion on guilt. "[I]tis the very fact that such opinions imply that the defendant

is guilty which makes the evidence relevant and material." [State v.] Wilber, 55

Wn. App. [294,] 298 n.l [, 777 P.2d 36 (1989)]. More important, [the officer's]

opinion was based solely on his experience and his observation of [the

defendant's] physical appearance and performance on the field sobriety tests. The

evidentiary foundation "directly and logically" supported the officer'sconclusion

that the defendant was intoxicated]. [State v.] Allen, 50 Wn. App. [412,] 418[,

749 P.2d 702 (1988)]; see also [State v.] Sanders, 66 Wn. App. [380,] 388[, 832

P.2d 1326 (1992)]. Under these circumstances, the testimony did not constitute

an opinion on guilt.

Heatley, 70 Wn. App. at 579 -80. As in Heatley, Mueller's, Bohon's and Stave'sconclusions

were based on their experience in light oftheir observations at Lewis'sregistered address. The

t
No. 42525 -4 -II

evidentiary foundation supports the witnesses' conclusions and their testimony was subject to the

fact finder's evaluation and scrutiny. See State v. Baird, 83 Wn. App. 477, 485, 922 P.2d 157

1996) (testimony that is not a direct comment on the defendant'sguilt, is based solely on

inferences arising from the physical evidence, is not based solely on the defendant'scredibility,

and is helpful to the jury, does not constitute improper opinion testimony).

In addition, under ER 701 a witness may testify to opinions or inferences when they are

rationally based on the perception ofthe witness and are helpful to the fact finder. "`Where the

opinion relates to a core element that the State must prove, there must be a substantial factual

basis supporting the opinion. "' State v. Fallentine, 149 Wn. App. 614, 624, 215 P.3d 945 (2009)

quoting State v. Farr - Lenzini, 93 Wn. App. 453, 462 -63, 970 P.2d 313 (1999)). Bohon and

Mueller testified to specific factual circumstances supporting their opinion that Lewis did not

live at the residence. Although Stave testified that she did not view the basement area of

Eschenfelder'shome during the time Lewis claimed to reside there, her opinion testimony did

recite specific observations about the other areas of the home and, as Neal'scommunity

corrections" officer, part of her job was to "know "who else was living at the house. For these

reasons; each ofthe witnesses' opinion testimony rested on the "`substantial factual basis "'

required by Fallentine, 149 Wn. App. at 624 (quoting Farr - Lenzini, 93 Wn. App. at 462 -63).

Accordingly, the trial court properly admitted the challenged testimony under ER 701.

Even if the trial court had erred in admitting the opinion testimony at issue, such

evidentiary error is reversible only if `within reasonable probabilities, the outcome of the trial

would have been materially affected had the error not occurred."' Fallentine, 149 Wn. App. at

624 (quoting State v. Brockob, 159 Wn.2d 311, 351, 150 P.3d 59 (2006)) ( internal quotation

a
No. 42525 -4 -II

marks omitted). Here, any rational fact finder would have arrived at the same conclusion

Mueller, Bohon and Stave expressed based on their stated observations of Lewis's claimed

residence and living quarters. Further, Eschenfelder'stestimony that Lewis never resided in her

home, which testimony the trial court found credible, was overwhelming evidence that Lewis

was guilty of failure to register as a sex offender. Accordingly, any error in admitting the

opinion testimony ofthe three officers would have been harmless.

II. TESTIMONY REGARDING THE CREDIBILITY OF A WITNESS

Next, Lewis asserts that the trial court erred by admitting opinion testimony he claims

commented on his credibility and on the credibility of another witness. Lewis, however, has

failed to preserve this issue on appeal; and we decline to address it.

The State elicited the following testimony from Bohon during redirect examination:

State]: During the course of your supervision ofthe defendant, did you

ever form the belief or have concern that Mr. Neal was covering for the defendant

not registering —not living at the approved residence?

Defense counsel]: I object to the form of that question, Your Honor. It calls for

complete speculation. It's a question without foundation.

Trial court ]: I'll overrule and you may answer:

Bohon]: I'm sorry. Can you say the question again.

State]: Certainly. Did you ever form the belief or become concerned that

Mr. Neal was covering for the defendant at the approved address?

Bohon]: Yes.

State]: What was that belief based upon?

Bohon]: Based upon a conversation that I had with Mr. Neal on —let me

locate my notes to refresh my memory. On March 24th where Mr. Neal—

Defense counsel]: I object ... because that is —calls for hearsay.

Trial court]: I would direct the witness that you cannot quote a statement from

an out -of -court witness who is not present to testify. So I'll sustain the objection.

The part that said based on the conversation that you had with Mr. Neal shall

stand.

State]: Officer Bohon, aside from any statements made by Mr. Neal, what

formed the basis for your belief that Mr. Neal was covering for the defendant?

10
No. 42525 -4 -II

Bohon]: The fact that I had not—neither myself nor the other CCO to date

had been able to make contact with Mr. Lewis at that location, and I don'trecall

ever seeing his belongings in the house.

RP at 131 -33. Because Lewis did not object to Bohon'stestimony on the ground that it was an

improper comment on the credibility of another witness, we must first determine whether he may

raise this issue for the first time on appeal.

The general rule in Washington is that a party'sfailure to raise an issue at trial waives the

issue on appeal, unless the party can show the presence of an exception to that rule, such as a

manifest error affecting a constitutional right. RAP 2. a); 5(ER 103; State v. Robinson, 171

Wn.2d 292, 304, 253 P.3d 84 (2011); State v. Kirkman, 159 Wn.2d 918, 926 -27, 155 P.3d 125

2007). Counsel must make timely objections to preserve errors for appeal or they are deemed

I 'l waived. State v. Wicke, 91 Wn.2d 638, 642, 591 P.2d 452 (1979). Additionally, "[ a] party may

only assign error in the appellate court on the specific ground of the evidentiary objection made

at trial." State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985).

Lewis objected below only on the grounds of hearsay and lack of foundation. Those

objections do not preserve the issue on " which" is whether Bohon'sbelief that Neal was

covering for Lewis constituted improper opinion testimony about a witness's and the defendant's

credibility. Lewis asserts only an evidentiary issue with the admission of Bohon'stestimony and

does not assert any constitutional error, let alone provide any argument or legal authority on a

ground that we could address for the first time on appeal under RAP 2. a). 5(See Cowiche

Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (appellate court will

not consider arguments unsupported by relevant authority). Under the authority above, this

challenge to Bohon'stestimony was not preserved for appeal.

11
No. 42525 -4 -II

III. SAG ARGUMENTS

In his SAG Lewis first appears to argue that he was subject to an illegal search when law

enforcement officers conducted an address verification check on his registered address. We

disagree. Here, the record shows that Mueller and Foster went to the address listed in Lewis's

registration packet to perform a routine address verification check. There, Eschenfelder told.the

officers that Lewis did not reside at her home and allowed Mueller to view its basement. We can

discern no unlawful search from this set of facts.

Lewis also asserts that his counsel was ineffective for failing to move to suppress

evidence seized as a result ofthe officers' search and that the prosecutor committed misconduct

by charging him with a crime based on evidence discovered during an illegal search. Because no

illegal search took place, these claims also lack merit.

Finally, Lewis repeats his appellate counsel's argument that the trial court improperly

admitted opinion testimony. We addressed this issue as argued by appellate counsel and do not

discuss it further with reference to Lewis's SAG.

We hold that the trial court didnotin admitting the - witnesses' opinions whether

Lewis resided at his registered address and, alternatively, that if the court did err by admitting

these opinions, any error was harmless. We also hold that Lewis has failed to preserve for

appeal his challenge to testimony he claims constituted an improper opinion on another witness's

credibility. Finally, we hold that Lewis's SAG arguments lack merit, and we affirm his

12
No. 42525 -4 -II

conviction.

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 accordance with RCW

2. 040, 06.it is so ordered.

G

We concur:

QUINN- BRINTNALL, J.

6 -ANSON, A. J.C

13