### FILED DECEMBER7, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
V. LUIS GUADALUPERODRIGUEZPEREZ, Appellant. STATE OF WASHINGTON, Respondent,
v. WILLIAMESCOBARMARTINEZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 

### 33571-2-111 (consolidatedwith No. 

### 33624-7-111)

OPINIONPUBLISHED IN PART

LAWRENCE-BERREY, A.CJ.

- Luis Guadalupe Rodriguez-Perez and William EscobarMartinez, triedjointly, appeal theirconvictions. Bothmenwere convicted of second degree murder. Martinez was additionally convictedofunlawfulpossession ofa

### No. 33571-2-111; No. 33624-7-111 State 

### v. Rodriguez-Perez; State 

### v. Martinez
firearm. Both men argue they are entitledto a newtrial because ofprosecutorial misconduct and error in the reasonable doubt instruction. Martinez asserts two additional arguments. He argues the trial court violated his right to present a defense when it excluded evidence that the shooting was gang related, and thathe was not a gang member butRodriguez-Perez was. He also argues the trial court erred by excluding testimony from his expertthat casts doubt on cross racial identification. We disagree with appellants' arguments and generally affirm. We publish in part to emphasize two aspects ofour opinion. First, prosecutors should be very careful when adding commentary to PowerPoint slides used during closing argument. Commentary must be based onthe evidence and assist thejury'sunderstanding ofit. Second, the right to present a defense is not absolute and, in appropriate cases, gives wayto other legitimate interests, including a codefendant's right to a fair trial. Here, the trial court did not err in protecting codefendant Rodriguez-Perez's right to a fair trial by excluding evidence ofhis gang membership, eventhough such exclusion somewhat weakened Martinez's defense.

2No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
FACTS In the early evening ofMarch 22, 2014, Rodriguez-Perez, Martinez, and Efren Iniguez spent time together before attending a concert laterthatnight at the Seasons Performance Hall in Yakima, Washington. The concertpromoted local rap artists and singers. The trio gothaircuts, returned to where Rodriguez-Perez and Iniguez lived, showered and dressed. Martinez borrowed red clothes from Rodriguez-Perez to wear. The trio enjoyed some tequila and smoked marijuana. Martineznoticedthat RodriguezPerez had a gun in his waistband, the same gun he always carried with him. RodriguezPerez drove his friends to the event, and parkedthe car withintwo blocks ofthe venue. As the men approached the Seasons, they could observe security at the door using a wand to check concertgoers for weapons. Rodriguez-Perez turned away from the door and walked away. Minutes later Rodriguez-Perez returned and entered. At some point during the event, 40 to 50 people abruptly went outside and many of them beganto fight. An outside surveillance video showed Martinez running toward the parked car with Rodriguez-Perez seconds behind, walkingtoward the parked car. The video showed them, minutes later, walking back together toward the Seasons.

3No. 33571-2-111; No. 33624-7-111 State v. Rodriguez-Perez; State v. Martinez
Back at the fight, Da'Marius Morgan punchedJustin Navarro, also known as "Klick Klack" 1in the head. Navarro fell down, but gotbackup. Thetwo continued arguing. While they were arguing, three ormore shots were fired by a thirdperson at Morgan. One ofthe bullets pierced Morgan's heart and he died. A bullet also struck Isaiah Prince in the leg and wounded him. Prince could not identify who shot him or Morgan. Estevan Montero was working security at the event and witnessed the shooting from inside the building. He saw three individuals nearhis truck, and one ofthem shot a handgun toward Morgan four or five times. Thethree men later were identified as Rodriguez-Perez, Martinez, and Iniguez. Montero sawMorgan collapse and fall, and the three men run away, down an alley. AaronAdams was also at the event. He saw a fight break outbetweentwo groups. Adams sawMorgan throw a punch and knock someone out. Adams sawtwo menrun behind a truck, pull out firearms, fire at Morgan, andthen run down a nearby alley. Daniel Cerdawas watching his son perform at the event and sawthe fight and shooting. Cerda also sawthe shooting, and saw the shooter run down the nearby alley.

1The transcript spells the pseudonym "Klick Klack," butthe prosecutor directed multiple witnesses to designate the person as "CC" on illustrative diagrams. 4No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
William Telakishrecorded much ofthe fight with his phone. The video showed Rodriguez-Perez, Martinez, and Iniguezjustbeforethe shooting standing where witnesses saidthe shooter or shooters stood. TheTelakishvideo did not show who shot Morgan. A second surveillance video showedRodriguez-Perez, Martinez, and Iniguez running from the shootingtoward an alley. It also showedRodriguez-Pereztossing something into a bush. Law enforcement arrived and began questioning witnesses. They quickly proceeded to the alley described bythe witnesses, where they saw angrypeopleyelling and runningtoward a bush. Two individuals begankickingtwo menwho were crouched down and hiding inthe bush. The officers pulled Rodriguez-Perez and Martinez out of the bush andtookthem into custody. While canvassingthe scene, law enforcement found
a blackjacket, a white shirt, a red cap and a cell phone inthe bushes where RodriguezPerez and Martinezwere hiding. At a show-up nearthe crime scene, Montero and Adams identified Martinez as the shooter, based on Martinez's distinctive hairstyle, hat, and clothing. ButAdams also said thatRodriguez-Perez might be the shooter ifhe hadbeen wearing a hat and subsequently discarded it. Cerda also identified Martinez as the shooter.
5No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
Thatnight, law enforcement interviewed both suspects separately at the police station. Martinez said that Rodriguez-Perez was the shooter, and that the gun belonged to Rodriguez-Perez. Martinezplayed a video recording on his phone from one month earlier that showed Rodriguez-Perez pointing a gun at the camera. The next morning, a man walking his dog found a gun in a bush near where officers had found Rodriguez-Perez and Martinez. Forensic tests established that the gun
was the murder weapon. In addition, the gun's magazine had a fingerprint thatmatched Rodriguez-Perez's fingerprint. PROCEDURE The State charged Rodriguez-Perez and Martinez, both as principals and accomplices, with second degree murder ofMorgan and first degree assault ofPrince. The State also chargedMartinez with first degree unlawful possession ofa firearm. On September 10, 2014, the State requested consolidation ofthe cases. Atthe
same hearing, Rodriguez-Perez and Martinez moved the courtto severtheir trials. In their motions, the men argued that their defenses were mutually antagonistic. The State responded that the defenses were not mutually antagonistic because Martinezwould argue Rodriguez-Perez was the shooter, while Rodriguez-Perez would argue the shooterwas a

6No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
third person. The trial court agreed with the State that the defenses were not sufficiently antagonistic for severance purposes, and granted consolidation. On February 24, 2015, Rodriguez-Perez made motions in limine. One ofthe motions asked the trial courtto exclude gang evidence. The State agreed that gang evidence was not relevant. Martinez reserved on the issue after indicating he might go either direction. During a laterhearing, Martinez sought an order allowing Dr. GeoffreyLoftus to testify about the unreliability ofeyewitness identification. The trial court generally allowed Dr. Loftus to testify, but did not allow him to testify on the narrow issue ofcross racial eyewitness identification. Trial commencedwithjury selection on March 5, 2015. Opening statements were made on March 9, 2015. The State then beganpresenting its case. On March 16, 2015, during a short break in the State's case, Martinez addressed the gang evidence issue thathe previouslyreserved. Martinez indicated he now wanted to admit gang evidence. He argued that one security guard indicatedthe fight was between two rival gangs, the Fun Boys and the West Side Hustlers. The guard indicated he saw Morgan punch Navarro, a rapper affiliated with the Fun Boys, causingNavarro to fall to the ground, and then someone from the Fun Boys fired shots atMorgan. Continuing,
7No. 33571-2-111; No. 33624-7-111 State v. Rodriguez-Perez; State v. Martinez
Martinez added that Sergeant Cortezwouldtestify that Rodriguez-Perez was a member of the Fun Boys, and would also testify thathe (Martinez) was not a known gang member. Rodriguez-Perez objected, and saidthe security guard, who previously testified, did not testify it was gang related. The trial court reserved ruling on the issue. On March 27, 2015, the State rested. Rodriguez-Perez and Martinezrenewed their motions to sever. Pursuantto CrR4.4(a)(2), theirrenewed motions were limitedto the grounds they previously argued. Both defendants generally argued that severance was required because their defenses were mutually antagonistic. The trial court again denied their motions to sever.2 The trial courtnext addressed the outstanding motion in limine pertainingto the admission ofgang evidence. The trial court directedMartinezto make an offer ofproof. Martinez's offer ofproofwas similarto the previous offer, and is set out in detail later in this opinion. Afterhearing the offer ofproof, the trial court excluded gang evidence on the basis that Martinez had failed "to establish thatthe shooting was to advance a particulargangpurpose orvalue." 15 Report ofProceedings (RP) (Mar. 27, 2015) at

2Martinez very briefly argued a newreason for severance, thathe wanted to admit gang evidence that the shooting was gang related, and thatRodriguez-Perez was a Fun Boys member. The trial court, perhaps aware ofCrR4.4(a)(2), separated the severance issue from the newly raised gang evidence issue. Martinez does not assign errorto this nor does either defendant challenge the trial court's denial oftheir severance motions. 8No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
2861. The trial court additionally reasoned that admitting gang evidence would be unfairly prejudicial to Rodriguez-Perez. Martinezthen testified in his own defense. He testified thatRodriguez-Perez owned the gun that shotMorgan, and thatRodriguez-Perez was the shooter. Martinez also testified he did not knowthatRodriguez-Perez had a gun until he shot Morgan. He further testified he did not do or say anything that encouraged or helped Rodriguez-Perez shootMorgan. In accordance with the trial court's ruling, Martinez did nottestify about Rodriguez-Perez's gang affiliation or about his own lack ofgang affiliation. Thetrial courtthen instructed thejury. The reasonable doubt instruction, objected to by both Rodriguez-Perez andMartinez, stated: A reasonable doubt is one for which a reason exists and may arise from the evidence or lack ofevidence. It is such a doubt as would exist in the mind ofa reasonable person after fully, fairly, and carefully considering all ofthe evidence or lack ofevidence. If, from such consideration, you have an abiding beliefin the truth ofthe charge, you are satisfiedbeyond a reasonable doubt. Clerk's Papers (CP) (Martinez) at 327. In closing arguments, the State used a PowerPointpresentation to summarize the evidencepresented to thejury overthe previous three weeks. ThePower Point presentation consisted ofphotographs, frames ofvideos, and summaries ofMartinez's testimony-all ofwhich were admitted at trial. EachPower Point slide had a caption that 9No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
described the contents ofthe slide, and the slides that summarized Martinez's testimony included editorial comments. NeitherRodriguez-Perez norMartinez objected to these captions or editorial comments during closing arguments. Thejury found both men guilty ofsecond degree murder. Thejury also found Martinez guilty ofunlawful possession ofa firearm. At sentencing, the trial courttold the two men that it was waiving discretionary legal financial obligations because they both
were indigent. The trial court struck costs ofincarceration for Martinez, but failed to strike costs ofincarceration for Rodriguez-Perez. Both men appealed, and we consolidated their appeals. ANALYSIS A. PURPORTED PROSECUTORIAL MISCONDUCT Rodriguez-Perez and Martinez contend the prosecutor committed misconduct by using inflammatory captions on his PowerPointpresentation during closing arguments. Martinez separately contends that some ofthe slides improperly commented on his credibility. Rodriguez-Perez also separately contends that the prosecutor committed misconductby improperly vouching for Martinez's testimony. We disagree with all of these contentions.

10No. 33571-2-111; No. 33624-7-111 State v. Rodriguez-Perez; State v. Martinez
To showprosecutorial misconduct, the defendanthas the burden ofestablishing that (1) the State acted improperly, and (2) the State's improper actprejudiced the defendant. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). Misconduct is prejudicial ifthere is a substantial likelihood it affected the verdict. Id. at 760-61. A prosecutor commits misconductby personallyvouching for a witness's credibility. State
v. Brett, 126 Wn.2d 136,175,892P.2d 29 (1995). The State has wide latitude in drawing and expressing reasonable inferences from the evidence, including inferences about credibility. State v. Thompson, 169 Wn. App. 436,496,290 P.3d 996 (2012). Courts review allegations ofprosecutorial misconduct during closing argument in light ofthe entire argument, the issues in the case, the evidence discussed during closing argument, and the court's instructions. State v. Sakellis, 164 Wn. App. 170,185,269P.3d 1029 (2011). However, a defendant who fails to objectto the State's improper act at trial waives any error, unless the act was so flagrant and ill-intentioned that an instruction could not have cured the resulting prejudice. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011). In making that determination, the courts "focus less onwhetherthe prosecutor's misconduct was flagrant or ill intentioned and more on whetherthe resulting prejudice could have been cured." Emery, 174 Wn.2d at 762.

11No. 33571-2-111; No. 33624-7-111 

### State v. Rodriguez-Perez; State v. Martinez
1. Theprosecutor didnot improperly vouchfor Martinez Improper vouching occurs ifthe prosecutor (1) places the prestige ofthe government behind the witness, or (2) indicates that evidence not presented at trial supports the witness's testimony. 

### State v. Robinson, 189 Wn. App. 877, 892-93, 359 P.3d 874 (2015). Rodriguez-Perez contends the State vouched for Martinez because it claimed in its opening statement that Martinez was the shooter, but during closing adopted one of Martinez's contentions that Rodriguez-Perez was the shooter. Rodriguez-Perez's argument is that by changing its theory and adopting one ofMartinez's contentions, the prosecutorplaced the prestige ofthe government behind Martinez. Theprosecutor's closing, considered as a whole, does not support this argument. During closing, the prosecutor argued two alternative theories. One theory was based on witness identification and argued that Martinez was the shooter. The other theory was based on the physical evidence that the gun belonged to Rodriguez-Perez, that the gun's magazine had Rodriguez-Perez's fingerprint, and that Rodriguez-Perez possessedthe gun soon after the shooting and then threw it into a bush. This second theory was buttressed by Martinez's testimony that Rodriguez-Perez was the shooter. In arguing this second theory, the prosecutor emphasizedthat thejury should still find Martinez guilty as an accomplice.
12No. 33571-2-111; No. 33624-7-111 

### State v. Rodriguez-Perez; State v. Martinez
Butthe prosecutor did not putthe prestige ofthe governmentbehind Martinez. Although the prosecutor's second alternative argument in closing was consistent with Martinez's testimony that he was not the shooter, the prosecutor disagreed with Martinez's testimony much more than he agreed with it. During closing, the prosecutor repeatedly emphasized portions ofMartinez's testimony that thejury should notbelieve. For example, the prosecutor emphasized thatMartinez was lying about not knowing why Rodriguez-Perez delayed enteringthe Seasons, was lying about why he ran to the parked
car when the fight began, and was lying about his claimed ignorance that RodriguezPerezhad a gun with him before Rodriguez-Perez shot Morgan. Because the prosecutor's argument did not putthe weight ofthe governmentbehind Martinez's testimony, we conclude the prosecutor did not improperly vouch for Martinez. 

### 2. Theprosecutordidnot improperly comment on Martinez's credibility A prosecutormay comment on a witness's veracity as long as a personal opinion is not expressed and as long as the comments are not intended to incite the passion ofthe jury. 

### State v. Stith, 71 Wn. App. 14, 21, 856 P.2d 415 (1993). There is a difference between the prosecutor'spersonal opinion, as an independent fact, and an opinion based
on or deduced from the evidence. 

### State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006) (quoting 

### State v. Armstrong, 37 Wash. 51, 54-55, 79 P. 490 (1905)). Misconduct 

### 13No. 33571-2-111; No. 33624-7-111 State v. Rodriguez-Perez; State v. Martinez

occurs only when it is clear and unmistakable that the prosecutor is not arguing an inference from the evidence, but is expressing a personal opinion. Id. at 54 (quoting State
v. Papadopoulos, 34 Wn. App. 397,400, 662 P.2d 59 (1983)). Martinez argues the prosecutor improperly commented on his credibility in PowerPoint slides 44, 47, 50, and 56. The slides, depicted below, contain Martinez's testimony in regular type, and the State's editorial comments and contrary assertions in italics: WILLIAM MARTINEZ • [Rodriguez-Perez] had pistol in waistband at house before concert • Dranktequila • Smoked marijuana • Drove to concert • Parked car on Naches Avenue • Wanded for weapons at door • [Rodriguez-Perez] did not enter; left for 5 minutes • Did not know why [Rodriguez-Perez] wentback (not credible) • Jury instruction: You are the solejudges ofthe credibility ofeach witness
.... In considering a witness's testimony, you may consider these things:
... anypersonal interestthat the witness might have in the outcome or the issues;
...the reasonableness ofthe witness's statements in the context ofall ofthe other evidence; • [Martinez] knew why [Rodriguez Perez] left-toputthepistolback in the car! Ex. SE-A at 44.

14No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
WILLIAM MARTINEZ • Watched concert • Went outside • Saw fight • Walked to car • Ran to car! (video) • Did not know where [Rodriguez-Perez] was • [Rodriguez-Perez] was seconds behind [Martinez] heading/orcar! (video) • Jury instruction: You are the solejudges ofthe credibility ofeach witness
.... In considering a witness's testimony, you may consider these things:
... anypersonal interestthat the witness mighthave in the outcome or the issues;
... the reasonableness ofthe witness's statements in the context ofall ofthe other evidence; • [Martinez] and [ RodriguezPerez] went together to get thepistol from the car. Ex. SE-A at 47. WILLIAM MARTINEZ • Car locked • Talked with girls • Heard car alarm • Saw [Rodriguez-Perez] inside car • Touched [Rodriguez-Perez] on shoulder • [Rodriguez-Perez] (best friend) ignores [Martinez]; leaves the car • [Martinez] calls out for [Rodriguez-Perez] • [Rodriguez-Perez] doesn't answer or look back • [Martinez]: Does not know that [Rodriguez-Perez] got gun • Jury instruction: You are the solejudges ofthe credibility ofeach witness
.... In considering a witness's testimony, you may consider these things:
... anypersonal interestthat the witness mighthave in the outcome or the issues;
... the reasonableness ofthe witness's statements in the context ofall the other evidence;
15No. 33571-2-111; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez

• IMartinez] knew that [RodriguezPerez] gotthepistol; [Martinez] helped [Rodriguez-Perez] getpistol. Ex. SE-A at 50. WILLIAM MARTINEZ • Best friends • Saved money for [Rodriguez-Perez] at bank • Wore [Rodriguez-Perez]'s red shirt and shoes • [Rodriguez-Perez] carriedpistol every time [Martinez] saw him • Videoed [Rodriguez-Perez] pointingpistol ("Good times") • [Rodriguez-Perez] has pistol in waistband earlierthatnight • Ran backto carjust ahead of[Rodriguez-Perez] • Saw [Rodriguez-Perez] get something from backseat ofcar • Went backto Pendleton Way with [Rodriguez-Perez] • Stood behind orange [truck] with [Rodriguez-Perez]. "Iwas right up front where that fool was." • Didn'tknow that [Rodriguez-Perez] intendedtofire? Ex. SE-A at 56. What is evident from the slides, combined with the prosecutor's arguments, is that the prosecutor was arguing thatportions ofMartinez's testimony should not be believed because ofthe existence ofcontrary evidence. Theprosecutorrepeatedly referred thejury to Martinez's testimony and evidence that contradicted his testimony. And in doing so, the prosecutorrepeatedly emphasized that thejurors were the solejudges ofcredibility. For example, with respect to slide 44, the prosecutor argued:

16No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
Mr. Martinez says he didn'tknow why [Rodriguez-Perez did not initially enterthe Seasons]. I would suggestto you that this part ofMr. Martinez's testimony is not credible. You have ajuryinstructionthat states in part thatyou are the solejudges ofthe credibility ofeachwitness. In considering a witness' testimony, you may considerthese things, and one of those things is any personal interestthat the witness might have in the outcome ofthe issues, the reasonableness ofthe witness' statements in the context ofall the other evidence. I suggestto you that this portion ofMr. Martinez's testimony where he says thathe did notknow why [Rodriguez-Perez] went away from the door is not credible. Hehas a personal interest in the outcome ofthis proceeding. When you consider all the other evidence, the statement is not reasonable. Mr. Martinez knew exactly why [Rodriguez-Perez] left the door of The Seasons Performance Hall because he couldn't get inside with the gun that was in the waistband ofhis [pants], the gun he always carried, the gun thatwas in the waistband ofhis pantsjustbefore they left
...the house. 17 RP (Mar. 31, 2015) at 3297. From the context, it is clearthroughout closing argument the prosecutor was asking thejuryto doubtportions ofMartinez'stestimony because of conflicting evidence. Becausethe prosecutor's comments aboutMartinez's credibility
were based on the evidence and not the prosecutor'spersonal opinion, we conclude the prosecutor did not commit misconduct in this regard. 3. The captions on the PowerPointslidesgenerally reflectedthe evidence or reasonable inferences therefrom Rodriguez-Perez and Martinez argue the prosecutor committedprejudicial misconduct when he used PowerPoint slides to add captions and various editorial

17

### No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez



### comments to evidence admitted at trial. They argue prosecutorial misconduct occurs whenever the prosecutoruses PowerPoint slides to alter evidence. We disagree. Rodriguez-Perez and Martinezrely heavily onIn re the PersonalRestraintof Glasmann, 

### 175 Wn.2d 696, 286 P.3d 673 (2012). In that case, the prosecutorused PowerPoint slides to assist in closing arguments. Id. 

### at 701. The slides contained photographs and surveillance camera footage introduced at trial, altered to include captions. Id. 

### At least five slides showed Glasmann's battered face from his booking photograph. Id. 

### at 701-02. One booking photo slide had a caption which read, "'DO YOU BELIEVE HIM?'" Id. 

### at 701. Anotherbookingphoto slide had a caption which read, "'WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?"' Id. 

### at 701-02. Toward the end ofthe PowerPoint, there was a series of three booking photos. Id. 

### at 702. The first had the word "'GUILTY'" in red emblazoned diagonally across Glasmann's battered face. Id. 

### The second had the word"'GUILTY"' in red superimposed mirror-like over the previous slide so that the words formed an "'X"' over Glasmann's face. Id. 

### The third had the word '"GUILTY'" in red superimposed horizontally over the previous slide, in effect, saying, "'GUILTY, GUILTY, GUILTY."' Id. 

### at 714. In aplurality decision, the courtreversed all of Glasmann's four convictions and granted him a new trial.
18No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
The fourjustices in theplurality seemingly agreed that altering evidence by adding editorial commentto PowerPoint slides is prosecutorial misconduct. Id. at 705-07. The four dissentingjustices agreedthatthe PowerPoint captions were improper, but would have affirmed three ofthe four convictions onthe basis that the improper closing was not prejudicial as to those convictions. Id. at 718. Ofsignificancehere, the fqur dissenting justices did not construe the plurality's holding as prohibiting PowerPoint slides, provided that the slides and arguments were proper. Id. at 724. The pivotal vote for the pluralitywas the concurring opinion ofJustice Chambers. Justice Chambers described the line betweenproper and improperuse ofPowerPoint in closing: Certainly, lawyers may and should use technology to advance advocacy andjudges shouldpermit and even encourage newtechniques. Butwe mustall remember the onlypurpose of visualaids of any kind is to enhance andassist thejury's understanding of the evidence. Technology should never be permitted to dazzle, confuse, or obfuscate the truth. The jury's deliberations mustbe based solely upon the evidence admitted and the court's instructions, notupon whose lawyer does the bestjob of manipulating, altering, shuffling, ordistorting the evidence into some persuasive visual kaleidoscope experience for thejury. Id. at 715-16 (emphasis added). Thus, a majority of justices in Glasmann agreed that counsel may use PowerPoint slides and editorialize, provided that in doing so, editorial comments are based on the evidence and assist thejury's understanding ofit.
19No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez Here, the prosecutor's PowerPoint slides contained editorial comments in the form ofcaptions. These captions were directly linked to the evidence and were helpful to the jury'sunderstanding ofit. Examples ofcaptions include: "COBAN SHOWUP," "HAT BEHIND BUSH," or "RODRIGUEZ-PEREZ WEARING HAT." Ex. SE-A at 30-36. Other challenged captions described what was occurring in still-shots ofthe various surveillance videos displayed to thejury: "MARTINEZ RUNS TO CARFORPISTOL," "RODRIGUEZ-PEREZHEADING TO CARFORPISTOL," "MARTINEZ RETURNS FROM CAR," or "BACKATTHE FIGHT." Ex. SE-A at 48-54. No slide has a caption
even remotely comparable to those in Glasmann. Butthere is one slide that we do find disconcerting. Slide 43 is captioned, "GOOD TIMES." Ex. SE-A at43. The slide is an exhibitphotograph ofMartinez slumped in a chair, with a dazed expression. 

### It was taken at the same place and time as slide 42, which depicts Rodriguez-Perezpointingthe murder weapon at the camera. Ex. SE-A at 42. Martinez argues the prosecutor deliberately designed the caption to prejudice him. The State responds that the caption reflects Martinez's own description ofthose two photographs. Martinez testified that he took the photographs in slides 42 and 43, and also why he saved them: "Ijustwanted to save itjust for good times,justremember us three,just a
20No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez good time." 15 RP (Mar. 27, 2015) at 2964. Although the State's response has a basis in fact, the prosecutor's choice ofcaption-GoodTimes-andMartinez's dazed expression, combine to cause the State's response to ring hollow. Although we find the caption improper, we do not find it prejudicial under the applicable standard. Theprejudice element ofa defendant's claim ofprosecutorial misconduct requires the defendant to show a substantial likelihoodthatthe misconduct affected thejury'sverdict. Glasmann, 175 Wn.2d at 704. The expression on Martinez's face in the photograph was part ofthe record before the prosecutor called additional attention to it with the caption. In addition, Martinez testified that he and his two friends drank tequila and smoked marijuanabefore the concert. The caption "GoodTimes" implies an irrelevant fact admitted by Martinez. We cannot find that the caption, itself, affected thejury'sverdict. Finally, the prosecutor's closing argument focused on the evidence, not on Martinez's dazed expression. We are confidentthat thejury's deliberations were similarly focused. B. MARTINEZ'S RIGHT TO PRESENTA DEFENSE Martinez separately contends the trial court violated his right to present a defense by excluding evidence ofgang affiliation and expert witness testimony about the unreliability ofcross racial eyewitness identification.
21No. 33571-2-111; No. 33624-7-111 State v. Rodriguez-Perez; State v. Martinez
This courtreviews a claim ofa denial ofSixth Amendment to the United States Constitution rights de novo. State v. Jones, 168 Wn.2d 713,719,230 P.3d 576 (2010). "We continue to review mosttrial court evidentiaryrulings for an abuse ofdiscretion." State v. Duarte Vela, 200 Wn. App. 306, 317, 402 P.3d 281 (2017). "Butwhen a trial court's discretionary ruling excludes relevant evidence, the more the exclusion ofthat evidence prejudices an articulated defense theory, the more likely we will find that the trial court abused its discretion." Id. (citingJones, 168 Wn.2d at 720). Both the United States and the Washington State Constitutions guarantee the right to present testimony in one's defense. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Hudlow, 99 Wn.2d 1, 14, 659 P.2d 514 (1983). "Theright ofan accused in
a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). A defendant's right to an opportunityto be heard in his defense, including the rights to examine witnesses against him and to offertestimony, is basic in our system of jurisprudence. Jones, 168 Wn.2d at 720. "Evidence that a defendant seeks to introduce 'mustbe ofat least minimal relevance.'" Id. (quoting State
v. Darden, 145 Wn.2d 612, 622, 41 P.3d 1189 (2002)). Defendants have a right to present only relevant evidence, with no constitutional right to present irrelevant evidence.
22No. 33571-2-III; No. 33624-7-III 

### State v. Rodriguez-Perez; State v. Martinez
State v. Gregory, 158 Wn.2d 759, 786 n.6, 147 P.3d 1201 (2006). 

### Ifrelevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness ofthe factfinding process attrial. 

### Darden, 145 Wn.2d at 622. 

### 1. Gangaffiliation evidence
a. The trial courtdidnot consider judicialeconomy in limiting gangevidence One ofMartinez's arguments is that the trial court erroneouslyprioritizedjudicial economy overhis right to present gang evidence. We disagree. During the hearing on the initial motions to sever, the trial court denied the motions after analyzing whetherthe two defenses were mutually antagonistic. Martinez's theory ofdefense was Rodriguez-Perez was the shooter, while Rodriguez-Perez's theory
was neither he nor Martinez shot Morgan or Prince. The trial court concludedthat these defenses were not sufficiently antagonistic to warrant severance. Afterthe State rested, and pursuantto CrR4.4(a)(2), the trial court consideredthe defendants' renewed motions to sever onthe same ground they previously argued. The trial court analyzed the issue on the record, cited authorities that supported its ruling, and reached the same conclusion that severance was not warranted.

23No. 33571-2-111; No. 33624-7-111 

### State v. Rodriguez-Perez; State v. Martinez
After the trial court denied the motions to sever, it then addressed gang evidence. Ourreview ofthe record shows no support for Martinez's contentionthat the trial court consideredjudicial economy as a reason for excluding gang evidence. 

### b. Evidence of gangaffiliation was somewhatrelevant, but excludable on the basis that itwas highlyprejudicialto Rodriguez-Perez All relevant evidence is admissible. ER401. However, before gang evidence is relevant, the party seeking admission must show a nexus between gang membership and the charged crime. 

### State v. Scott, 151 Wn. App. 520, 526, 213 P.3d 71 (2009). Afterthat connection is shown, gang evidence still falls within the scope ofER404(b). 

### State v. Yarbrough, 151 Wn. App. 66, 81,210 P.3d 1029 (2009). Evidence ofother crimes, wrongs, or acts is not admissible to prove the character ofa person in orderto show action in conformity therewith, but it is admissible to establish motive. ER404(b). Here, aportion ofMartinez's defense was thathe did not have a motive to shoot orparticipate in the shooting ofMorgan, but Rodriguez-Perez, a member ofthe Fun Boys, did have such a motive.

24No. 33571-2-III; No. 33624-7-III State 

### v. Rodriguez-Perez; State 

### v. Martinez
The trial court asked Martinez for an offer ofproofon the gang affiliation evidence he wished to introduce. The offer, based on Sergeant Cortez'spolice report/interview with security guard Martin Gonzalez,3 stated: [The fight] began inside during the concert when several subjects began to exchange words for an unknown reason butthought it had somethingto do with gangs or rap. Gonzalez explained that there were several rap groups playing [that night], that one ofrap [groups] named DSB, Down Since Birth, is affiliated with the FB's, Fun Boys, aNorteno gang in Yakima. Gonzalez stated that two large groups that consisted ofWest Side Hustlers and FB's, Fun Boys, went outside to rumble and square off. Gonzalez stated that hewas standing at the entrance door, whichthey locked to prevent the fight from going into the business, and was looking through the glass when the two groups began to fight. Gonzalez statedthey fought for a moment and then stopped but continued to exchange words. Gonzalez stated a shorttime later it appeared to get started. A subject with the West Side Hustlers threw apunch at Klick Klack, Justin Navarro, date ofbirth 6-30-91, who's an FB rapper. Gonzalez stated as the fight was beginning again a subjectthat was with the FB'sbrandished apistol and shot about three times. Gonzalez stated he did not know ifthe subject was shooting at anyone in particular or justinto the crowd. So the significance from [Martinez's] perspective is thatMr. Gonzalez specifically indicates that this was, at least as I interpretthis language, a gang-reported incident between West Side Hustlers and Fun Boys, two rival gangs. He identified the person he saw as the shooter as being somebody who was a Fun Boy.

3Gonzalez testified that he attended a nearby university, was studying criminal justice, and his prior work experience included working for two local security companies. He further testified that a friend asked him to work security for the event, and that he worked as a volunteer. The record says nothing about Gonzalez'straining and background for identifying gang affiliations. 25No. 33571-2-111; No. 33624-7-111 State v. Rodriguez-Perez; State v. Martinez
15 RP (Mar. 27, 2015) at 2857-58. The offer also statedthat Sergeant Cortezwould testify thatRodriguez-Perez was a high-ranking member ofthe Fun Boys, and that Martinez was not known to be a gang member. The trial court analyzed the issue underScott and excluded the evidence for lacking a nexus between gang values orpurpose and the charged crime. Specifically, the court noted, "[t]he evidence so far indicates that the shooting arose out ofa conflict between two groups, which started out as yelling and rose to the level ofa fistfight. There is simply not enough evidence in this case to establish that the shooting was to advance a particular gangpurpose or value." 15 RP (Mar. 27, 2015) at 2861.4 As an additional basis for its ruling, the trial court opinedthat admission ofgang evidence was unfairly prejudicial to Rodriguez-Perez. We agree with this alternative basis and limit our disposition ofthe issue accordingly. As previously explained, a defendant's right to present evidence is not absolute. 

### It may, "in appropriate cases, bowto accommodate other legitimate interests in the criminal trial process." Chambers, 410 U.S. at 295. The FirstAmendmentright ofassociation protects gang affiliation. Scott, 151 Wn. App. at 526 (citingDawson v. Delaware, 503

4 Up to thatpoint, the parties intentionally omitted gang evidence from the trial. So the trial court's reasoning was a bittautological. The trial court should have focused on the offer ofproof, not the evidence that it had already heard. 26No. 33571-2-111; No. 33624-7-111 State v. Rodriguez-Perez; State v. Martinez
U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 (1992)). The admission ofgang evidence is highlyprejudicial. State v. Asaeli, 150 Wn. App. 543, 579, 208 P.3d 1136 (2009). Admitting gang evidence risks ajury convicting a person solely on the basis ofgang membership. See Scott, 151 Wn. App. at 529. Recognizing this danger, the State agreed with Rodriguez-Perez that evidence ofgang membership was not admissible. Martinez equivocated on the admission ofgang evidence until one week into the trial. Martinez had a very good reason to equivocate. Had the trial court admitted gang evidence, Martinez would have had an additional problem: howwould he explain his request to wear Rodriguez-Perez's red Fun Boys/Norteno-colored clothing to the concert. Having an officertestify that Martinez was not a known gang member was oflittle help, given Martinez's request ofhis high-ranking gang member friend to wear his gangcolored clothing. Because admitting gang evidence would havejeopardizedRodriguezPerez's right to a fair trial, and mighthave hurt Martinez's case more than it helped it, we cannot say that the trial court's exclusion ofgang evidence was an abuse ofdiscretion. A majority ofthe panel having determined that only the foregoing portion ofthis opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuantto RCW 2.06.040, it is so ordered.

27No. 33571-2-III; No. 33624-7-III 

### State v. Rodriguez-Perez; State v. Martinez
2. Expert testimony on cross racial eyewitness identification Martinez argues the trial court violated his right to present a defense by excluding his expert, Dr. Geoffrey Loftus, from testifying about the unreliability ofcross racial identification. All relevant evidence is admissible, absent some exceptions. ER402. Relevant evidence is "evidence having any tendency to make the existence ofany fact that is of consequence to the determination ofthe action more probable or less probable than it would be without the evidence." ER401. "Ifscientific, technical, or other specialized knowledge will assist the trier offact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form ofan opinion or otherwise." ER702. In the
case ofscientific testimony, the expert (1) must qualify as an expert, (2) the expert's opinion must be based on a theory generally accepted in the relevant scientific community, and (3) the testimony must be helpful to the trier offact. 

### State v. Allery, 101 Wn.2d 591,596,682 P.2d 312 (1984). When "eyewitness identification ofthe defendant is a key element ofthe State's case, the trial court must carefully considerwhether expert testimony on the reliability of eyewitness identification would assist thejury in assessing the reliability ofeyewitness
28No. 33571-2-111; No. 33624-7-111 State v. Rodriguez-Perez; State v. Martinez testimony." State v. Cheatam, 150 Wn.2d 626, 649, 81 P.3d 830 (2003). "[T]he court should considerthe proposed testimony and the specific subjects involved in the identification to which the testimony relates, such as whetherthe victim and the defendant
are ofthe same race, whetherthe defendant displayed a weapon, [and] the effect of stress ...." 

### Id. Martinez is Hispanic. The only non-Hispanic eyewitness who identified Martinez
as the shooter is Adams. Dr. Loftus generated a report, and the report noted Adams did not identify Martinezto the police based on race, "he saidthat shooter
...had a red shirt and a red hat, and, he had a sweater. [Adams] couldn't see the color ofthe sweater .... He says he's 100% sure ofthe guy he picked (Martinez) because he had the 'exact same color ofhat.'" CP (Martinez) at 180-81. Martinez conceded in oral argument that Adams "pickedMr. Martinez primarily because he was dressed all in red. So it was based on clothing that he was making his identification." RP (Mar. 2-3, 2015) at 51. The record is clearthat Adams identified Martinez based on his clothing rather than because ofany racial characteristic. The trial court correctly concluded that expert testimony on cross racial identification would not assist thejury. The trial court did not violate Martinez's right to present a defense when it excluded irrelevant evidence. Gregory, 158 Wn.2d at 786 n.6.
29No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez
C. REASONABLE DOUBTJURY INSTRUCTION Rodriguez-Perez and Martinez contend the trial court impermissibly lowered the State's burden ofproofby giving thejury a probable cause instruction that contained the phrase "abidingbeliefin the truth ofthe charge." Each opposedthe State'srequest for this instruction. We disagree. This courtreviews a challenge to the language of juryinstructions de novo, considering the context ofthe instructions de novo. State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007). The language in question comes from the Washington Pattern Instructions and has survived a number ofsimilar challenges. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL4.01, at 93 (4th ed. 2016); see State v. Kinzle, 181 Wn. App. 774,784,326 P.3d 870 (2014); State v. Fedorov, 181 Wn. App. 187, 200, 324 P.3d 784 (2014); State v. Pirtle, 127 Wn.2d 628, 658,904 P.2d 245 (1995); State v. Mabry, 51 Wn. App. 24, 25, 751 P.2d 882 (1988). The United States Supreme Courthas also upheld the use ofan abiding beliefinstruction. Victor v. Nebraska, 511 U.S. 1, 14-15, 114 S. Ct. 1239, 127 

### L. Ed. 2d 583 (1994). Nonetheless, Rodriguez-Perez and Martinez argue the instruction is no longer permissible afterEmery. We disagree. Although the trial court gave the same instruction, the issue in Emery was much narrower. InEmery, theprosecutorrepeatedly
30No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez implored thejury during closing argument to speak the truth. Emery, 174 Wn.2d at 751. Our Supreme Court found the statement improper and reasoned, "ajury'sjob is to determine whetherthe State has provedthe charged offenses beyond a reasonable doubt," not to speak ordeclare the truth. Id. at 760. Nothing in the holding disturbed prior precedentpertaining to the phrase "abidingbeliefin the truth" or its use in a reasonable doubtjury instruction. See State v. Giles, 185 Wn. App. 1038, review denied, 184 Wn.2d 1021, 361 P.3d 747 (2015). Here, the instruction correctly invitedthejuryto weigh the evidence. 

### D. LEGAL FINANCIAL OBLIGATIONS Rodriguez-Perez contends that a scrivener's error in thejudgmentand sentence obligated him to pay costs ofincarceration, when the trial court intended to waive these costs for both Martinez and him. The State concedes this point and agrees thatremand is appropriate for the trial court to correctthis error. We accept the concession and remand for the trial court to strike Rodriguez-Perez's costs ofincarceration. E. APPELLATE COSTS Martinez and Rodriguez-Perez ask this courtnot to impose appellate costs in the eventthey do notprevail. The State responds by agreeing not to seek appellate costs. We therefore decline to impose costs. RAP 14.2.
31No. 33571-2-III; No. 33624-7-III State v. Rodriguez-Perez; State v. Martinez Affirm, but remand to strike incarceration costs.

32