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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

MICHAEL DAVID HERRERA,

Appellant.

 No. 81129-1-I

 DIVISION ONE

 UNPUBLISHED OPINION

SMITH, J. — Michael Herrera assaulted Leigh Orlando-Ward outside of a 

marijuana dispensary in Seattle, Washington, after Orlando-Ward and Herrera’s 

wife, Chelsea Crowley, had an argument. At trial, Herrera alleged that he feared

for Crowley’s safety and reacted to protect her. An eye witness testified that 

Herrera’s assault on Orlando-Ward was “[a]n unnecessary beat down.” In 

addition, the prosecutor disparaged Herrera, questioning whether he could count

during cross-examination. The jury did not accept Herrera’s defense that he 

used the force necessary to protect Crowley and found him guilty of second 

degree assault. At sentencing, the State included a conviction that Herrera 

received as a juvenile, and the sentencing court imposed community custody 

fees. 

Herrera appeals, asserting that the eye witness impermissibly opined to 

his guilt and that the prosecutor’s statements were improper. We agree on both 

accounts. However, because there was video evidence of the incident, the 

errors were harmless. And with regard to the inclusion of the juvenile conviction,
No. 81129-1-I/2

2

the judgment and sentence was valid on its face and properly included in 

Herrera’s sentencing score. Given that the court erred in imposing community 

custody supervision fees, we affirm Herrera’s conviction but remand to the 

sentencing court to strike those fees. 

FACTS

On February 19, 2018, Herrera and Crowley went to a marijuana

dispensary in Seattle. Crowley parked the vehicle, and Herrera went inside the 

shop. After a couple of minutes, Leigh Orlando-Ward pulled his truck into the 

parking spot next to Crowley’s. Both cars were parked outside of the designated 

parking lines, at skewed angles. Crowley exited her vehicle in anger and 

approached Orlando-Ward. She yelled at Orlando-Ward for his poor parking job, 

and Orlando-Ward insulted her. 

Nonetheless, when Crowley walked away, Orlando-Ward reparked his 

truck. Crowley entered the shop and told Herrera, “[B]abe, come help. Some 

guy’s messing with me.” Herrera testified that Crowley looked scared. She left 

the shop, and Herrera followed her out. Herrera alleges that he heard OrlandoWard yell at Crowley and call her an inappropriate name.

As Orlando-Ward walked toward the shop, Crowley exited the shop, and 

the two met face-to-face. Herrera walked up behind Crowley, punched OrlandoWard in the face, and continued to do so even after Orlando-Ward fell to the 

ground. Orlando-Ward’s girlfriend, Cassidy Wolff, was in the passenger seat of 

Orlando-Ward’s truck. When she saw what was happening, she exited the truck

and pushed Herrera away. Herrera and Crowley got into her vehicle and drove 
No. 81129-1-I/3

3

away. A video camera at the dispensary captured Crowley and Orlando-Ward’s 

exchange and the assault. 

Orlando-Ward called the police and provided them with Crowley’s license 

plate number. He suffered from multiple facial fractures. Specifically, Herrera’s 

assault on Orlando-Ward fractured his cheekbone, orbital floor, alar rim, and four 

other bones connected to his cheekbone. Orlando-Ward later underwent 

maxillofacial surgery in order to reconstruct a portion of his face. He suffers from 

permanent nerve damage and chronic sinus headaches. 

In May 2018, Seattle Police Department went to Crowley’s apartment 

following their investigation into the assault. Crowley, Herrera, and their son 

were at the apartment. The detectives brought Herrera in for questioning. 

During questioning, Herrera asserted that Orlando-Ward pushed and shoved 

Crowley, contending, “I [saw] him pushing her.” He told the detectives, “All I did 

was push that guy down.”

The State charged Herrera with second degree assault. At trial, Herrera 

asserted that he acted lawfully in defense of Crowley.

The State showed the video to the jury. In the video, it does not appear 

that Orlando-Ward shoved Crowley. However, it shows him pointing to her car

aggressively. 

David Bradley, an eye witness, testified at trial. Bradley was in the parking 

lot across the street when he witnessed the assault. He testified that he saw 

someone fall down, and “the next thing [he] saw was somebody beating the living 

crap out of him on the ground.” When the State asked what he would call the
No. 81129-1-I/4

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event, Bradley characterized it as “[a]n unnecessary beat down.” 

Herrera testified in his defense, asserting that he hit Orlando-Ward to 

protect Crowley and did not stop until she was safely inside their car. He 

explained, “I hit him because I thought he had attacked my wife.” He testified 

that he told Crowley to drive away when he saw Orlando-Ward reach for his 

pocket, believing that he was reaching for a gun. 

On cross-examination, the prosecutor questioned Herrera about the video: 

Q: Now he went straight to the ground when you punched him, 

correct?

A: Yes.

Q: And then while he was on the ground, you hit him at least 17 

more times, correct?

A: I’m not sure the count, but yes.

Q: Would you like to watch and count them?

A: No, I --

Q: I’m going to ask you to count them.

A: I wouldn’t be able to from here, nor if I was up at the screen.

Q: Do you not know how to count?

 [DEFENSE COUNSEL]: Your Honor, objection, Your 

Honor. That’s improper.

 [COURT]: Sustained. Why don’t you just play the video, 

if that’s what you were going to do. I can’t see the screen.

Q: (By Mr. Carlstrom) All right. Mr. Herrera, please do your best 

to let us know how many times you punched Mr. OrlandoWard after he went to the ground.

A: (By Mr. Herrera) I would say about 17 times.

Q: I thought you couldn’t count to 17.

A: I never said --

 [DEFENSE COUNSEL]: Your Honor --

A: (By Mr. Herrera) -- I couldn’t count.

 [DEFENSE COUNSEL]: -- objection. That is just 

offensive and improper.

 [COURT]: All right.

 MR. HERRERA: It is.

 [COURT]: Overruled, go ahead.

The court provided the jury the instruction for the lawful use of force in 

defense of others. The jury did not accept this defense and found Herrera guilty 
No. 81129-1-I/5

5

of second degree assault. 

Prior to sentencing, the State’s presenting report calculated Herrera’s 

offender score as 8. It included a juvenile conviction for “to elude police.” 

However, Herrera’s attorney did not challenge that conviction and said, “I am not 

challenging the State’s ability to prove up the . . . convictions.” The court agreed

with the State’s calculation of Herrera’s offender score. It sentenced him to the 

high-end of the standard range. However, it found Herrera indigent and imposed 

only mandatory legal financial obligations (LFOs) and restitution. Nonetheless, 

the judgment and sentence includes form language that requires Herrera to pay 

community custody supervision fees. 

Herrera appeals. 

ANALYSIS

Eye Witness Testimony

Herrera asserts Bradley’s testimony constituted an impermissible opinion 

of guilt. We agree. 

We review the admission of opinion testimony for abuse of discretion. 

State v. Quaale, 182 Wn.2d 191, 196, 340 P.3d 213 (2014). “A lay opinion is 

admissible only if it is ‘rationally based on the perception of the witness’ and ‘not 

based on scientific, technical, or other specialized knowledge.” City of Seattle v. 

Levesque, 12 Wn. App. 2d 687, 704, 460 P.3d 205 (quoting ER 701 (a), (c)), 

review denied, 195 Wn.2d 1031 (2020). “Put another way, lay testimony must be 

based on ‘knowledge . . . from which a reasonable lay person could rationally 

infer the subject matter of the offered opinion.’” Levesque, 12 Wn. App. 2d at 
No. 81129-1-I/6

6

704 (alteration in original) (quoting State v. Kunze, 97 Wn. App. 832, 850, 988 

P.2d 977 (1999)).

Under ER 704, “opinion testimony is not objectionable merely because it 

embraces an ultimate issue that the jury must decide.” Quaale, 182 Wn.2d at

197. However, “[w]hen opinion testimony that embraces an ultimate issue is 

inadmissible at a criminal trial, the testimony may constitute an impermissible 

opinion on guilt.” Quaale, 182 Wn.2d at 197. “To determine whether a statement 

constitutes [impermissible] opinion testimony, a court considers the type of 

witness, the specific nature of the testimony, the nature of the charges, the type 

of defense, and the other evidence before the trier of fact.” State v. Rafay, 168 

Wn. App. 734, 805-06, 285 P.3d 83 (2012). “Impermissible opinion testimony 

regarding the defendant’s guilt may be reversible error.” Quaale, 182 Wn.2d at 

199. 

Bradley’s testimony commented on the necessity of Herrera’s actions. 

Bradley testified, “[T]he next thing I saw was somebody beating the living crap 

out of [Orlando-Ward] on the ground.” He opined that it was “[a]n unnecessary 

beat down.” But Herrera asserted that his use of force was necessary to protect 

Crowley. And the court instructed the jury: 

A person is entitled to act on appearances in defending 

another, if he believes in good faith and on reasonable grounds that 

another is in actual danger of injury, although it afterwards might 

develop that the person was mistaken as to the extent of the 

danger. Actual danger is not necessary for the use of force to be 

lawful.

And necessary was defined as, “under the circumstances as they reasonably 
No. 81129-1-I/7

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appeared to the actor at the time, (1) no reasonably effective alternative to the 

use of force appeared to exist and (2) the amount of force was reasonable to 

effect the lawful purpose intended.”

Bradley’s opinion that the “beat down” was “unnecessary” went to a key 

issue of fact for the jury to decide, i.e., whether Herrera acted reasonably in 

response to the perceived threat to Crowley. Where a witness’s opinion parrots 

the language of a key instruction, it may constitute an impermissible opinion. 

See, e.g., Quaale, 182 Wn.2d at 195, 200 (holding that an officer’s testimony was 

an improper opinion testimony where, among other issues, the officer’s opinion 

mirrored the legal standard of guilt provided in the jury instructions). Given the 

nature of the charge, second degree assault, and Herrera’s defense, lawful 

defense of another, Bradley’s opinion that Herrera’s use of force was 

unnecessary constituted impermissible opinion testimony. However, Bradley’s 

testimony does not establish a reversible error. 

Because impermissible opinion testimony invades the province of the jury 

by commenting on the defendant’s guilt and offends their constitutional right to a 

fair trial, “‘we apply the constitutional harmless error standard.’” Levesque, 12 

Wn. App. 2d at 711 (quoting State v. Hudson, 150 Wn. App. 646, 656, 208 P.3d 

1236 (2009)). “In a constitutional harmless error analysis, we presume 

prejudice.” Levesque, 12 Wn. App. 2d at 711. And a “[c]onstitutional error is 

harmless only if the State establishes beyond a reasonable doubt that any 

reasonable jury would have reached the same result absent the error.” Quaale, 

182 Wn.2d at 202. 
No. 81129-1-I/8

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Quaale is instructive here. State Patrol Trooper Chris Stone pulled over 

Ryan Quaale after Quaale evaded him, lost control of his vehicle, and “skidd[ed] 

into a homeowner’s yard.” Quaale, 182 Wn.2d at 194. Trooper Stone believed

that Quaale was intoxicated. Quaale, 182 Wn.2d at 193. However, Quaale 

refused to take a breath test, and Trooper Stone only performed one sobriety 

test, a horizontal gaze nystagmus test (HGN). Quaale, 182 Wn.2d at 194-95. 

The State charged Quaale with felony driving under the influence. Quaale, 182 

Wn.2d at 195. During trial, Trooper Stone testified “in an aura of scientific 

certainty” based on the HGN test that “he had ‘no doubt’” that Quaale was 

impaired. Quaale, 182 Wn.2d at 198-99. Our Supreme Court concluded that the 

testimony was impermissible opinion testimony. Quaale, 182 Wn.2d at 199. It 

reversed Quaale’s conviction, concluding that the only evidence that Quaale was 

impaired, beyond his poor driving, was Trooper Stone’s testimony. Quaale, 182 

Wn.2d at 202.

Here, Bradley’s characterization of the incident aside, each juror was fully 

capable of discerning the necessity of the force Herrera used. Unlike the jury in 

Quaale, which had to rely solely on Trooper Stone’s testimony of Quaale’s 

impairment, here, the jury did not have to rely on Bradley’s opinion to form a 

belief on Herrera’s guilt and the necessity of his use of force. Instead, the jurors 

could watch the video evidence and objectively assess the circumstances. There 

is no doubt that any reasonable jury would have reached the same result. 

Herrera disagrees and asserts that Bradley’s testimony compares to the 
No. 81129-1-I/9

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testimony at issue in State v. George1 and State v. Sargent.

2

 Both cases are 

dissimilar. In George, the witness testified that the defendants were the 

individuals in the surveillance video offered at trial based on minimal encounters. 

150 Wn. App. at 119. In Sargent, a detective opined that he thought the 

defendant knew his wife was dead when the defendant responded, “‘[Y]ou mean 

something happened to [my wife]?’” 40 Wn. App. at 350. The detective thus 

opined the defendant lied. Sargent, 40 Wn. App. at 351. George is 

distinguishable because Bradley was not providing an opinion that the jury could 

not make for itself based on the video. And Sargent is distinguishable because, 

there, the detective opined to the defendant’s veracity and the State’s evidence 

was not overwhelming, as it is here. Thus, we do not find these cases 

persuasive. 

Prosecutorial Misconduct

Herrera asserts that the prosecutor’s statements regarding his ability to 

count were improper. We agree that the comments were improper but conclude 

that Herrera fails to show any prejudice. 

We review allegations of prosecutorial misconduct for an abuse of 

discretion. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). “To 

prevail on a claim of prosecutorial misconduct, a defendant must show first that 

the prosecutor’s comments were improper and second that the comments were 

prejudicial.” State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008). 

 

1 150 Wn. App. 110, 206 P.3d 697 (2009). 

2 40 Wn. App. 340, 698 P.2d 598 (1985). 
No. 81129-1-I/10

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Our first inquiry therefore is whether the prosecutor’s comments were 

improper. Lindsay, 180 Wn.2d at 431. Incivility on the part of the attorneys at 

trial can “threaten[ ] the fairness of the trial, not to mention public respect for the 

courts.” Lindsay, 180 Wn.2d at 432. Here, the State concedes that the 

prosecutor’s comments were improper, and we agree. The prosecutor 

disparaged Herrera’s intelligence and mocked him, stating, “I thought you 

couldn’t count to 17.” Even reading this from a cold record, the prosecutor’s 

sarcasm and derision are obvious. And although the comments attempted to 

attack Herrera’s credibility, they were inappropriate and improper. Therefore,

Herrera succeeds on the first prong.

However, the comments did not prejudice Herrera. To show prejudice, the 

defendant “must show a substantial likelihood that the prosecutor’s statements 

affected the jury’s verdict.” Lindsay, 180 Wn.2d at 440. “In analyzing prejudice, 

we do not look at the comments in isolation, but in the context of the total 

argument, the issues in the case, the evidence, and the instructions given to the 

jury.” Warren, 165 Wn.2d at 28. 

Given the weight of the evidence presented, Herrera fails to show the 

prosecutor’s inappropriate remarks prejudiced him. See Warren, 165 Wn.2d at 

29 (concluding that the weight of the evidence supported the defendant’s 

conviction and prevented any prejudice from the prosecutor’s improper 

comments). In particular, although the prosecutor sarcastically attacked 

Herrera’s credibility with his question, Herrera’s inconsistent statements to the 

detectives before and after he knew that there was a video of the altercation 
No. 81129-1-I/11

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sufficiently undermined his credibility. The comments also did not attack 

Herrera’s defense and were isolated. And as discussed above, the video 

evidence allowed the jury to come to their own conclusion regarding the assault. 

Thus, Herrera does not show there is a substantial likelihood that the comments

affected the jury’s verdict. See, e.g., State v. Negrete, 72 Wn. App. 62, 67-68, 

863 P.2d 137 (1993) (holding that the prosecutor’s improper comment impugning 

defense counsel, although inappropriate, did not result in prejudice where the 

State presented substantial evidence against the defendant and the remark was 

isolated). In short, the statements did not prejudice Herrera and were harmless. 

Cumulative Error

Herrera contends that the cumulative errors demand that we reverse his 

conviction and remand for a new trial. We disagree. 

“‘The cumulative error doctrine applies where a combination of trial errors 

denies the accused a fair trial even where any one of the errors, taken 

individually, may not justify reversal.’” State v. Song Wang, 5 Wn. App. 2d 12, 

31, 424 P.3d 1251 (2018) (quoting In re Detention of Coe, 175 Wn.2d 482, 515, 

286 P.3d 29 (2012)). “But because any errors did not affect the outcome of the 

trial, the cumulative error doctrine does not apply.” Rafay, 168 Wn. App. at 838.

For the foregoing reasons, we affirm Herrera’s conviction. 

Offender Score

Herrera challenges the inclusion of a juvenile conviction in his offender 

score. We conclude that the court correctly calculated his offender score. 

“It is well established that the State has the burden to prove prior 
No. 81129-1-I/12

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convictions at sentencing by a preponderance of the evidence.” State v. Hunley, 

175 Wn.2d 901, 909-10, 287 P.3d 584 (2012). “While the preponderance of the 

evidence standard is ‘not overly difficult to meet,’ the State must at least 

introduce ‘evidence of some kind to support the alleged criminal history.’” 

Hunley, 175 Wn.2d at 910 (quoting State v. Ford, 137 Wn.2d 472, 480, 973 P.2d 

452 (1999)). However, “a sentence in excess of statutory authority is subject to 

collateral attack, . . . a sentence is excessive if based upon a miscalculated 

offender score (miscalculated upward), and . . . a defendant cannot agree to 

punishment in excess of that which the legislature has established.” In re Pers. 

Restraint of Shale, 160 Wn.2d 489, 494, 158 P.3d 588 (2007).

Herrera stated he was not challenging the at-issue juvenile conviction. 

However, on appeal, he asserts a legal challenge to the juvenile conviction’s 

judgment and sentence: that it is invalid on its face. Such a challenge is 

nonwaivable. See In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 875-76, 50 

P.3d 618 (2002) (holding that the defendant could not waive a challenge to a 

miscalculated offender score that asserts and proves that a judgment and 

sentence was invalid on its face). And contrary to the State’s contention, Shale

does not control here because Shale involved factual challenges to the 

defendant’s convictions. And the court discerns the validity of those factual 

challenges employing its discretion. See Shale, 160 Wn.2d at 494 (“[W]aiver can 

be found where the alleged error involves an agreement to facts, later disputed, 

or where the alleged error involves a matter of trial court discretion.”). 

Here, the judgment and sentence stated only that the conviction was for 
No. 81129-1-I/13

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“to elude the police.” Herrera asserts that the judgment and sentence was invalid 

because it did not provide that the offense was “Attempting to elude police 

vehicle—Defense—License revocation,” as set out in RCW 46.61.024. In 

support of his assertion, Herrera cites a number of cases that are inapplicable. 

See In re Pers. Restraint of Hinton, 152 Wn.2d 853, 857-58, 100 P.3d 801 (2004) 

(in addressing a personal restraint petition, holding that the defendants could 

attack their convictions where they were convicted of a crime that did not exist); 

In re Pers. Restraint of Thompson, 141 Wn.2d 712, 719, 10 P.3d 380 (2000) 

(holding that where the crime did not exist, judgment and sentence was facially 

invalid). The crime of eluding police did exist, even if the judgment and sentence 

lacked the precise statutory title of the crime. This is not a case where the crime 

for which he was convicted did not exist, and it appears disingenuous to assert 

as much. Therefore, we are not persuaded. The judgment and sentence was 

facially valid, and Herrera’s offender score was correctly calculated.

Supervision Fees

As a final matter, Herrera asserts that the trial court erred when it imposed 

DOC supervision fees. The record in this case reflects that the trial court 

intended to waive all discretionary LFOs. And where the trial court intended to 

waive all discretionary LFOs, remand is appropriate to strike the boilerplate 

language requiring a defendant to pay DOC supervision fees. See State v. 

Dillon, 12 Wn. App. 2d 133, 152, 456 P.3d 1199 (remanding for the trial court to 

strike DOC supervision fees where “[t]he record demonstrate[d] that the trial 

court intended to impose only mandatory LFOs”), review denied, 195 Wn.2d 
No. 81129-1-I/14

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1022 (2020). Accordingly, we remand for the trial court to strike the imposition of 

these fees. 

We affirm Herrera’s judgment and sentence but remand for the trial court 

to strike its imposition of supervision fees.

 

WE CONCUR: