IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

THOK S. KHAT,

Appellant.

No. 83689-7-I 

DIVISION ONE

UNPUBLISHED OPINION

SMITH, C.J. — Thok Khat was convicted of unlawful possession of a 

firearm in the second degree. On appeal, Khat contends that the court erred by 

not certifying the State’s latent print examiner as an expert in DNA and by limiting 

the print examiner’s testimony. He claims that the court’s decision to limit the 

examiner’s testimony interfered with his right to present evidence. He also 

challenges statements made by the prosecutor during closing arguments, and 

asserts that his trial counsel was ineffective for not objecting to one of those 

statements. Finding no error, we affirm. 

FACTS

Background

Around midnight on April 11, 2020, Thok Khat was driving northbound on 

SR-99 in Seattle. Seattle Police Officer Bryan Weber noticed that Khat was 

driving without headlights and conducted a record check on the car’s license 

plate. Upon discovering that the car’s registration had lapsed two and a half 

years prior, Officer Weber pulled Khat over. When the officer asked Khat for his 
No. 83689-7-I/2

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license, Khat provided a Washington identification card. A records check 

revealed that Khat was driving with a suspended license. The records check 

also showed that Khat was not legally able to possess a firearm due to a prior 

felony conviction. Khat told Officer Weber that the vehicle belonged to his uncle 

and that his uncle had not yet registered the car in his name. He also told Officer 

Weber that he had been living in the car. 

Because the car had been unregistered for so long, Officer Weber decided 

to impound it. He asked Khat to step out of the vehicle and offered to collect 

Khat’s belongings from the car for him. After removing Khat’s belongings, Officer 

Weber conducted an inventory search of the rest of the car and discovered a 

Glock handgun inside the unlocked glovebox. Because Khat was not legally 

allowed to possess a firearm, Officer Weber arrested him.

Khat was initially taken to Seattle Police Department’s North Precinct for 

questioning, and then later transferred to King County Jail. While in jail, Khat 

called a friend and described how he had been pulled over, that the car tabs 

were expired, that the car had been searched, and that police found something 

Khat didn’t want them to find. Khat’s friend told him that he should have left 

“shorty”1 with him, and Khat agreed.

Khat was subsequently charged with unlawful possession of a firearm in 

the second degree. 

 

1

 “Shorty” is a slang term for gun, and typically refers to a sawed-off 

shotgun. See Sawed-Off Shotgun, WIKIPEDIA, https://en.wikipedia.org/

wiki/Sawed-off_shotgun [https://perma.cc/2JBY-NYTG].
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Motions in Limine

During motions in limine, the State moved to exclude DNA testimony it 

anticipated that the defense would seek from its latent print examiner, Amanda 

Poast. Defense counsel told the court it wanted to elicit testimony that “guns are 

a good material from which to collect DNA.” Defense counsel explained that 

Poast could qualify as a DNA expert because she had training as a crime scene 

analyst. Counsel also explained that this testimony would go to the weight and 

thoroughness of the State’s investigation. The trial court reserved ruling on the 

motion, reasoning that it would need to hear Poast’s testimony to determine 

whether proper foundation existed to qualify her as an expert.

Later on, in the absence of the jury, defense counsel was permitted to ask 

Poast questions about her qualifications as an expert witness. Poast testified 

that she had worked as a latent print examiner for the Seattle Police Department 

for ten years, and that she holds a bachelors degree in biology and a masters 

degree in forensic science. She also testified that she was familiar with general 

principles of how DNA transfer works and that she was aware that DNA is best 

left on textured surfaces as compared to smooth surfaces. Poast stated that this 

knowledge was based on her experience, educational background, and a twohour training presented by DNA examiners from the Washington State Patrol

(WSP). However, Poast said that she had only ever swabbed for DNA—she had

never conducted any DNA analysis. And she stated on cross-examination that 

DNA testing was not her area of expertise.
No. 83689-7-I/4

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The court concluded that while Poast had “some limited education about 

textured services [sic] and DNA,” she was not a reliable DNA expert witness 

“because she has never analyzed or tested anything that she has swabbed,” so

“she [did] not have the scientific basis to confirm that two-hour course that in fact 

guns are reliable places—places to collect DNA from.” The court then limited 

defense’s questioning of Poast to whether she swabbed the gun for DNA.

Closing Arguments

During the State’s rebuttal in closing arguments, defense counsel lodged 

several objections. Relevant here are the underlined sentences in the following 

exchange:

[STATE:] Right. And you have a doubt it’s reasonable it’s 

his gun. Who else could have put that gun there? How could 

Mr. Khat not know that gun was there? Look at all the evidence in 

its totality, once again including that jail call, and I believe you’ll 

follow your commonsense and find Mr. Khat guilty. And I’ll leave 

you with this, you are not supposed to take, other than being 

careful and considerate of the evidence, punishment into 

consideration.

[DEFENSE]: Objection, Your Honor.

THE COURT: Overruled.

[STATE]: So, your job as jurors is to find what the truth

is, right? And if he is convicted, if you come back with the guilty 

verdict, which I think the evidence establishes, it’s the judge’s 

determination about a sentence. 

Now, Mr. Khat’s situation at that time is sympathetic, right. 

He said he was evicted, and he was living out of his car, right? 

That’s not something that we deal with as jurors here. That’s 

something that if he is convicted can be looked at at sentencing. 

And you have to trust—

[DEFENSE]: Objection to the references of sentencing, 

Your Honor. This is improper.

THE COURT: Overruled.
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[STATE]: And you just have to focus on the narrow 

issue, which is did the State prove beyond a reasonable doubt that 

Mr. Khat knowingly possessed, constructively possessed that 

firearm in the car? And the State has met its burden. Thank you.

Khat was convicted as charged and sentenced to three months of 

electronic home detention. He appeals.

ANALYSIS

Expert Testimony & Right to Present a Defense

Khat asserts that the court erred by prohibiting the latent print examiner

from testifying that firearms are good places from which to collect DNA evidence. 

He claims that this limitation on the print examiner’s testimony violated his right to 

present a defense. We disagree.

Where a defendant argues that an evidentiary ruling violated their right to 

present a defense, we apply a two-step standard of review. State v. Jennings, 

199 Wn.2d 53, 58, 502 P.3d 1255 (2022). First, we analyze the trial court’s 

evidentiary ruling for an abuse of discretion. State v. Arndt, 194 Wn.2d 784, 797-

98, 453 P.3d 696 (2019). Next, we review de novo whether exclusion of 

evidence violated the defendant’s constitutional right to present a defense. 

Arndt, 194 Wn.2d at 797-98.

1. Exclusion of Expert Testimony

We review a trial court’s determination on the admissibility of expert 

testimony for an abuse of discretion. Hollins v. Zbaraschuk, 200 Wn. App. 578, 

580, 402 P.3d 907 (2017). A trial court abuses its discretion if its decision is 

manifestly unreasonable or based on untenable grounds. Wash. State. Phys. 
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Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993). 

To find an abuse of discretion, we “ ‘must be convinced that no reasonable 

person would take the view adopted by the trial court.’ ” L.M. by & through 

Dussault v. Hamilton, 193 Wn.2d 113, 135, 436 P.3d 803 (2019) (emphasis and 

internal quotation marks omitted) (quoting State v. Salgado-Mendoza, 189 Wn.2d 

420, 427, 403 P.3d 45 (2017)). And if the basis for the court’s ruling is “ ‘fairly 

debatable,’ ” we “ ‘will not disturb the trial court’s ruling.’ ” Dussault, 193 Wn.2d 

at 135 (internal quotation marks omitted) (quoting Gilmore v. Jefferson County 

Pub. Transp. Benefit Area, 190 Wn.2d 483, 494, 415 P.3d 212 (2018)).

The admissibility of expert witness testimony involves a two-step inquiry: 

(1) whether the witness qualifies as an expert, and (2) whether the testimony 

would be helpful to the trier of fact. Reese v. Stroh, 128 Wn.2d 300, 306, 907 

P.2d 282 (1995). A witness may qualify as an expert “by knowledge, skill, 

experience, training, or education.” ER 702. But an expert witness may not 

testify about information outside their area of expertise. In re Marriage of Katare, 

175 Wn.2d 23, 38, 283 P.3d 546 (2012). When determining whether a witness 

qualifies as an expert, the court must consider whether the expert has “ ‘sufficient 

expertise in the relevant specialty.’ ” Frausto v. Yakima HMA, LLC, 188 Wn.2d 

227, 232, 393 P.3d 776 (2017) (quoting Young v. Key Pharm., Inc., 112 Wn.2d 

216, 229, 770 P.2d 182 (1989)). Expert testimony is helpful if it assists “the jury’s 

understanding of a matter outside the competence of an ordinary layperson.” 

Reese, 128 Wn.2d at 308. Unreliable testimony or testimony lacking an 

adequate foundation is not helpful. Dussault, 193 Wn.2d at 137-38.
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Here, the court did not abuse its discretion by concluding that Poast was 

not qualified to testify about whether guns are good places to test for DNA. 

Although Poast was well-qualified to testify about latent print collection and 

analysis, she had limited knowledge of DNA collection and analysis. Poast 

testified that she was “familiar with general principles of how DNA transfer 

occurs” and was “aware that DNA is best left on textured surfaces as compared 

to smooth services [sic].” She noted that she knew which items were “more 

likely” to have DNA on them than not. This knowledge, she testified, came from 

a two-hour training presented by DNA examiners with the WSP. 

However, she explained that the two-hour WSP course only covered 

where to swab for DNA, it did not involve any forensic analysis of DNA. She also 

testified that she had never been involved in DNA analysis at her job as a latent 

print examiner—she had only ever swabbed items for DNA. And though she 

took a DNA class in graduate school, Poast admitted that she had never done 

“any work with DNA” in her previous examiner positions and had not engaged in 

any other study of DNA aside from the two-hour training with WSP. Further, 

when asked if DNA testing was within her area of expertise, Poast replied, “No.” 

Even considering the two-hour swabbing training, without having actually tested 

a swabbing sample, Poast did not possess the scientific knowledge to confirm 

that textured surfaces are indeed good places to swab for DNA. The trial court 

did not abuse its discretion in concluding that Poast was not qualified as an 

expert witness and that her testimony would be unreliable, nor by limiting the

testimony accordingly.
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2. Right to Present a Defense

“A criminal defendant’s right to present a defense is guaranteed by both 

the federal and state constitutions.” Jennings, 199 Wn.2d at 63; U.S. CONST.

amend. VI; WASH. CONST. art. I, § 22. However, this right is not absolute: the 

State’s interest in excluding prejudicial evidence must “be balanced against the 

defendant’s need for the information sought to be admitted.” Arndt, 194 Wn.2d at 

812. For example, “ ‘evidence that is repetitive . . ., only marginally relevant, or 

poses an undue risk of harassment, prejudice, [or] confusion of the issues, may 

be excluded.’ ” Jennings, 199 Wn.2d at 63 (alterations in original) (internal 

quotation marks omitted) (quoting Holmes v. South Carolina, 547 U.S. 319, 326-

27, 129 S. Ct. 1727, 164 L. Ed. 2d 503 (2006). And “when the defendant has an 

opportunity to present [their] theory of the case, the exclusion of some aspects of 

the defendant’s proffered evidence will not amount to a violation of the 

defendant’s constitutional rights.” State v. Ritchie, 24 Wn. App. 2d 618, 635, 520 

P.3d 1105 (2022). Thus, the defendant’s ability to achieve the effect that the 

excluded evidence would have produced by other means is a factor indicating 

that their right to present a defense was not violated. See Ritchie, 24 Wn. App. 

2d at 635 (ability to achieve same effect indicates that right to confrontation was 

not violated). 

But in some instances involving evidence of high probative value, “it

appears no state interest can be compelling enough to preclude its introduction 

consistent with the Sixth Amendment [to the United States Constitution] and [] 

art. 1 § 22” of our state constitution. State v. Hudlow, 99 Wn.2d 1, 16, 659 P.2d 
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514 (1983). For example, in a rape case, evidence as to the circumstances 

surrounding the alleged rape, specifically that the victim had actively participated 

in an “all-night drug-induced sex party” was highly probative evidence because it 

constituted the defendant’s entire defense. State v. Jones, 168 Wn.2d 713, 721, 

230 P.3d 576 (2010). In contrast, in a felony murder case involving a claim of 

self-defense, exclusion of a toxicology report showing the victim had 

methamphetamine in their system at the time of death did not violate the 

defendant’s right to present a defense because the report was “minimally 

relevant” and the defendant was still able to testify to his theory of the case. 

Jennings, 199 Wn.2d at 66-67.

Here, the excluded testimony did not preclude Khat from presenting his 

theory of the case and was not highly probative. When balanced against the 

State’s interest in limiting the prejudicial effects of inaccurate testimony, Khat’s 

right to present a defense was not violated. At trial, Khat’s defense focused on 

the lack of evidence linking him to the gun and the lack of thoroughness in the 

police’s investigation. Even with the limitations on Poast’s testimony, Khat was 

still able to elicit from Poast that she had not swabbed the gun for DNA because 

police did not request DNA testing and that she did not recover any prints from 

the gun. That testimony directly supported Khat’s theory of the case; that guns 

might be good places to swab for DNA does not add more to Khat’s defense and 

is thus, not highly probative. And importantly, nothing prevented Khat from 

offering testimony from another expert witness qualified in DNA analysis.
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Prosecutorial Misconduct

Khat asserts that the prosecutor committed misconduct by telling the jury it 

was their job to find the truth and by referencing Khat’s sympathetic situation and 

how it might affect sentencing. He claims that these statements misstated the 

jurors’ role and diminished the jurors’ sense of responsibility and that a new trial 

is warranted. While we agree that the statements were improper, we disagree 

that either resulted in prejudice requiring reversal.

We review allegations of prosecutorial misconduct for an abuse of 

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

Prosecutors have wide latitude to argue reasonable inferences from the evidence 

and we presume that they act impartially “in the interest of justice.” State v. 

Thorgerson, 172 Wn.2d 438, 443, 448, 258 P.3d 43 (2011). “[T]o prevail on a 

claim of prosecutorial misconduct, a defendant who timely objects must show 

that the prosecutor’s ‘conduct was both improper and prejudicial in the context of 

the in the context of the entire trial.’ ” State v. Zamora, 199 Wn.2d 698, 708, 512 

P.3d 512 (2022) (internal quotations omitted) (quoting State v. Loughbom, 196 

Wn.2d 64, 70, 470 P.3d 499 (2020)). If a defendant fails to object, they must 

meet a heightened prejudice standard and show that the prosecutor’s conduct 

was “ ‘so flagrant and ill intentioned that [a jury] instruction would not have cured 

the [resulting] prejudice.’ ” Zamora, 199 Wn.2d at 709 (alterations in original) 

(quoting Loughbom, 196 Wn.2d at 70). “In other words, the defendant who did 

not object must show the improper conduct resulted in incurable prejudice.” 

Zamora, 199 Wn.2d at 709 (emphasis in original). We analyze prejudice by 
No. 83689-7-I/11

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considering the prosecutor’s comments “in the context of the total argument, the 

issues in the case, the evidence addressed in the argument, and the instructions 

given to the jury.” State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). 

And we assume the jury was able to follow the court’s instructions. State v. 

Warren, 165 Wn.2d 17, 28, 195 P.3d 950 (2008).

1. Misstatement of Jurors’ Role

Khat contends that the prosecutor’s “truth” statement was improper 

because it misstates the role of the jury. We agree that the statement was 

improper. The jury’s job is not to determine the truth of what happened, but to 

determine whether the State has proved the charged offenses beyond a 

reasonable doubt. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012)

(finding prosecutor’s “truth” statements improper). 

However, because Khat did not object to this statement during closing, he 

must now meet a higher prejudice burden and demonstrate that this conduct was 

flagrant and ill-intentioned and resulted in incurable prejudice. He fails to do so. 

In this case, the jury instructions cured any prejudice. Right after the prosecutor 

told the jurors they needed to determine the “truth,” he also informed them that 

their role was to determine whether the evidence supported the charge beyond a 

reasonable doubt. The present case is analogous to Emery. In Emery, the 

prosecutor told the jury, “Your verdict should speak the truth,” and further urged 

the jury to “speak the truth by holding these men accountable for what they did.” 

174 Wn.2d at 751. Our state Supreme Court concluded that while improper, 

these statements could be cured by a proper jury instruction or by a timely 
No. 83689-7-I/12

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objection. Emery, 174 Wn.2d at 764. The same is true in the present case. The 

jury was properly instructed on its role and we presume they followed those 

instructions. 

Khat’s assertion that the prosecutor’s statement affected the outcome of 

trial is similarly unconvincing. Overwhelming evidence supported the jury’s guilty 

verdict: Khat admitted he had been living in the car; he had many personal 

belongings in the car and trunk; he admitted that although other people may have 

been in the car, none of his friends carried guns; and he insinuated in the jail 

phone call that he should have left the gun with his friend. Thus, while Khat can 

demonstrate that the prosecutor’s statement was improper, he cannot show that 

it was incurable or prejudicial.

2. Diminishing Jurors’ Sense of Responsibility

Khat also challenges the following statement that the prosecutor made 

during closing argument: 

Mr. Khat’s situation at that time is sympathetic, right. He said he 

was evicted, and he was living out of his car, right? That’s not 

something that we deal with as jurors here. That’s something that if 

he is convicted can be looked at at sentencing. And you have to 

trust—

Khat timely objected to this statement and the court overruled his objection. 

Thus, we consider whether the statement was improper and if it resulted in 

prejudice. 

It is generally improper for the jury to consider or be informed of the 

consequences of their verdict. See State v. Bowman, 57 Wn.2d 266, 271, 356 

P.2d 999 (1960) (prosecutor’s statement that defendant may receive suspended 
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sentence is improper); State v. Torres, 16 Wn. App. 254, 262, 554 P.2d 1069 

(1976) (prosecutor’s argument that defendant may receive probation improper). 

Comments on sentencing “may distract the jury from its function of determining 

whether the defendant was guilty or innocent beyond a reasonable doubt by 

informing them, in substance, that it does not matter if their verdict is wrong 

because the judge may correct its effect.” Torres, 16 Wn. App. at 262

(discussing this effect in context of capital cases).

Here, the prosecutor’s statement was plainly improper. The prosecutor 

should not have told the jurors that they didn’t need to consider Khat’s 

sympathetic situation. Even if the statement was true, it is not within the province 

of the jury to consider how its verdict may affect sentencing. 

Although the statement was improper, we disagree that it resulted in 

prejudice or that there was a substantial likelihood the statement affected the 

jury’s verdict. Though distinguishable, Bowman involved similar statements and 

is instructive here. In Bowman, the prosecutor informed the jury, 

This court, after conviction, can give [the defendant] a suspended 

sentence, if you convict. That is with [sic] the province and the 

power of the Court, and I might add, it happens quite frequently.

57 Wn.2d at 271 (alteration in original). Our state Supreme Court noted that 

while the prosecutor’s statement was “both imprudent and largely uncalled for,” it 

“was not so flagrant that its prejudicial effect, if any, could not have been cured 

by an instruction of the trial court.” Bowman, 57 Wn.2d at 271. In this case, Khat 

fails to demonstrate that the statement resulted in prejudice, and any prejudice 
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that may have occurred was mitigated by the court’s instruction to the jury that 

they were not to consider sentencing.2 

Moreover, when considered in the context of the entire trial and the 

charges involved, the statement did not affect the outcome at trial. As previously 

discussed, the evidence in this case was overwhelming. And the crime involved 

is not emotionally charged such that the jury would feel inclined to rely on the 

court to correct the effect of their verdict: Khat was not facing an extended 

sentence and there were no victims of his crime. Cf. Torres, 16 Wn. App. at 262

(discussing this effect in context of capital cases). Finally, we disagree with 

Khat’s contention that the court’s failure to sustain his objections “lent an aura of 

legitimacy” to the prosecutor’s improper statement. The jury was instructed that 

the lawyers’ remarks were not evidence and must be disregarded if not 

supported by the evidence or the law in the jury instructions.3 See also Emery, 

174 Wn.2d at 759 (“Because jurors are directed to disregard any argument that is 

 

2 Jury instruction 1 states:

You have nothing whatever to do with any punishment that may be 

imposed in case of a violation of the law. You may not consider the 

fact that punishment may follow conviction except insofar as it may 

tend to make you careful.

3 The relevant provision of jury instruction 1 states: 

The lawyers’ remarks, statements, and arguments are intended to 

help you understand the evidence and apply the law. It is 

important, however, for you to remember that the lawyers’ 

statements are not evidence. The evidence is the testimony and 

the exhibits. The law is contained in my instructions to you. You 

must disregard any remark, statement, or argument that is not 

supported by the evidence or the law in my instructions.
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not supported by the law and the court’s instructions, a prosecutor’s arguments 

do not carry the ‘imprimatur of both the government and the judiciary.’ ”). 

Ineffective Assistance of Counsel

Khat contends that his counsel’s failure to object to the prosecutor’s 

statement that the jurors needed to find the truth constituted ineffective 

assistance of counsel. Because his counsel’s failure to object could have been a 

legitimate trial strategy, we disagree. 

Ineffective assistance of counsel claims present a mixed question of fact 

and law that we review de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 

P.3d 916 (2009). The Sixth Amendment to the United States Constitution 

and article I, section 22 of the Washington State Constitution guarantee the right 

to effective assistance of counsel. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 

1045 (2017). To prevail on an ineffective assistance of counsel claim, a 

defendant must establish that (1) counsel’s performance was deficient, and (2) 

that deficiency resulted in prejudice. State v. Kyllo, 166 Wn.2d 856, 862, 215 

P.3d 177 (2009). Counsel’s performance is deficient if it falls “below an objective 

standard of reasonableness based on consideration of all the 

circumstances.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 

(1995). Prejudice exists “if there is a reasonable probability that except for 

counsel’s errors, the result of the proceeding would have differed.” State v. 

Estes, 193 Wn. App. 479, 488, 372 P.3d 163 (2016). There is a strong 

presumption that representation was effective. State v. Grier, 171 Wn.2d 17, 33, 

246 P.3d 1260 (2011). “When counsel’s conduct can be characterized as 
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legitimate trial strategy or tactics, performance is not deficient.” Kyllo, 166 Wn.2d 

at 863. For example, “[d]ecisions on whether and when to object to trial 

testimony are classic examples of trial tactics.” State v. Crow, 8 Wn. App. 2d 

480, 508, 438 P.3d 541 (2019); see also In re Pers. Restraint of Davis, 152 

Wn.2d 647, 717, 101 P.3d 1 (2004) (“A decision not to object during summation 

is within the wide range of permissible professional legal conduct.”).

Here, counsel’s failure to object to the prosecutor’s statement that jurors 

must determine the “truth” can be characterized as a legitimate trial tactic. And in 

the context of the rest of closing argument, it does not appear that defense 

counsel was deficient because he objected to several other statements made by 

the prosecutor during closing. We conclude that counsel’s decision not to object 

to this statement does not constitute deficient performance.

Affirmed.

WE CONCUR:

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