IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

CITY OF BREMERTON, No. 52724-3-II

Appellant,

v.

ROBERT NORMAN THOMPSON, UNPUBLISHED OPINION

Respondent.

WORSWICK, J. — We granted discretionary review of the superior court’s decision 

reversing the district court’s judgment and sentence, which found Robert Thompson guilty of 

driving while under the influence of intoxicants (DUI).

The City argues that the superior court erred by ruling that a toxicologist offered 

impermissible opinion of guilt testimony and the admission of that testimony was manifest 

constitutional error requiring reversal. Because the untainted evidence of Thompson’s 

impairment was overwhelming, we hold that even if the testimony constituted manifest 

constitutional error, it was harmless beyond a reasonable doubt. Thus, we reverse the superior 

court’s order and affirm Thompson’s conviction.

FACTS

On the afternoon of August 2015, Kathryn Sorensen sat in the passenger seat of her 

daughter’s van, which was parked outside of a pizzeria. Robert Thompson exited a neighboring 

business and entered the vehicle parked to the right of the van. As Thompson attempted to 

reverse his vehicle out of the parking stall, his vehicle struck the van, lifting it up off the ground. 

Filed

Washington State

Court of Appeals

Division Two

February 19, 2020
No. 52724-3-II

2

Sorensen attempted to get Thompson’s attention by waving, yelling, and honking the van’s horn, 

but Thompson continued to reverse into the van. Eventually, Thompson noticed Sorensen and 

yelled at her, asking why she was hitting him. Thompson pulled his vehicle forward, and the van 

returned to the ground.

Sorensen asked Thompson for his insurance. She observed that Thompson’s speech was 

slurred, and he was walking unsteadily. While waiting for law enforcement to arrive, Thompson 

told Sorensen he was on several medications.

Sorensen’s daughter, Patricia Covington, exited the pizzeria when she heard her van’s 

horn. Covington confronted Thompson, who initially asked her why she had hit his car. 

Thompson then told Covington that he had to hit her van because she was in his way. Covington 

also observed that Thompson’s speech was slurred and he was difficult to understand. 

Covington saw that Thompson could not stand up straight and was swaying. She thought she 

smelled alcohol.

Officer Bryan Hall responded to the scene and spoke with Covington, Sorensen, and 

Thompson. Officer Hall perceived Thompson to be confused. Thompson did not believe he had 

been in a collision, despite Officer Hall pointing out damage to his vehicle. Officer Hall asked 

Thompson if he had had any alcohol that day, and Thompson responded that he had had a couple 

of beers. Later in the conversation, Thompson told Officer Hall he had had two glasses of wine. 

Thompson also revealed that he was on medications.

Officer Hall became concerned that Thompson may be impaired and called Officer 

Christopher Faidley, a drug recognition expert (DRE), to the scene. Officer Faidley arrived and 

observed that Thompson appeared disheveled and his speech was slurred. Thompson reiterated 
No. 52724-3-II

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his belief that he had not been involved in a collision. Officer Faidley administered field 

sobriety tests and discussed Thompson’s medication use with Thompson. Officer Faidley 

concluded that probable cause existed to arrest Thompson for DUI.

Officer Faidley transported Thompson to the police department and performed a more 

thorough DRE evaluation. Officer Faidley concluded that Thompson was likely under the 

influence of a central nervous system depressant. Thompson agreed to provide a blood sample, 

which was sent to the Washington State Patrol Toxicology Laboratory. The toxicology results 

showed a blood alcohol level of .031 grams per 100 milliliters. Thompson’s blood sample also 

tested positive for Temazepam, which is a benzodiazepine in the category of central nervous 

system depressants.

The City charged Thompson with driving under the influence, operation of a motor 

vehicle without ignition interlock device, and third degree driving while license suspended or 

revoked. Thompson pleaded guilty to operation of a motor vehicle without ignition interlock 

device and third degree driving while license suspended or revoked. Thompson proceeded to 

trial on the DUI charge.

At trial, Washington State Patrol forensic scientist Brittany Thomas provided expert

testimony. Thomas noted that the combination of alcohol and Temazepam could create an 

additive effect on a person making their coordination and balance poor and causing confusion 

and an inability to focus. The City presented Thomas with a hypothetical scenario:

[I]f a person takes Temazepam in the morning and drinks alcohol—two glasses of 

wine in the afternoon, could those—that time spread still provide an additive effect? 

Clerk’s Papers (CP) at 313. Thomas responded, “Yes. As long as either of those are still present 

in the blood, then there can be an additive effect.” CP at 314.
No. 52724-3-II

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The City expanded on the hypothetical, asking:

If a person who—going back to my scenario—while taking Temazepam in the 

morning and two glasses of some type of wine or beer in the afternoon, if that 

person was exhibiting effects of being—you know, would be—of striking another 

vehicle, of being confused and not knowing they were in an accident, of not being 

able to track a conversation, of slurred speech or up on . . . unsteady balance and 

disorientation, in your professional opinion, would that person be impaired by the 

combination of alcohol and Tamazepam?

CP at 314. Thomas responded, “Yes, I would agree with that.” CP at 314. The City revisited 

the line of questioning on redirect.

[CITY]: In looking at the actual test results here, are you able to say they found 

those levels—just based—looking at that paperwork, if a person is impaired or not 

impaired based on those levels?

[THOMAS]: No.

[CITY]: And what—what is important? What is the missing element for you not 

to be able to from that?

[THOMAS]: Any observations of the individual, either driving performance or 

observations on the sobriety tests or just general observations from experience.

[CITY]: So that particular test and those results on that test, could they be 

impaired?

[THOMAS]: Yes.

[CITY]: And but the—the definitive observations would be needed for you to make 

a full professional opinion on that.

[THOMAS]: Yes.

[CITY]: Okay. However, with the hypothetical that I gave you, which added not 

only to the drugs, the—the coordination issues and the car crash—on that 

hypothetical and looking at the blood test result, would you believe the person in 

that hypothetical would be impaired?

[THOMAS]: Yes. 
No. 52724-3-II

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[CITY]: And did you believe that that impairment is—is consistent or at least tied 

to the test results you saw?

[THOMAS]: Yes.

CP at 321-22. Thompson did not object to Thomas’s testimony.

During its closing argument, the City recapped the evidence presented during trial, noting

the other important part of this was the Toxicologist seeing an expert . . . make an 

opinion when you give her a task. So I said to her, if this is your drug and alcohol 

level to do that test that you’re looking at and you have somebody who gets in a 

crash, who is slurring their speech, who is disoriented, who is disjointed in their 

speech and not tracking—when you have that happen with this exact blood test, in 

your expert opinion, is that person in that situation impaired and she said yes. Yes, 

that person is.

CP at 364.

In its rebuttal closing argument, the City emphasized Thomas’s expert opinion: 

She’s an expert in this area. She said based on those observations, which were two 

independent witnesses, two Officers, yes. That person on those medications with 

that alcohol and that behavior at the scene is somebody in that scenario [that] was 

impaired.

CP at 372.

The jury found Thompson guilty of DUI.

Thompson appealed his conviction and sentence to the superior court arguing, in relevant 

part, that the admission of the toxicologist’s testimony was manifest constitutional error because 

her testimony constituted improper opinion of guilt testimony. The superior court agreed, ruling:

The testimony of Thomas improperly invaded the province of the trier of fact 

concerning the guilt of the Defendant, and thereby violated Mr. Thompson’s 

constitutional right of having a jury decide his case. This is manifest constitutional 

error. 

It is impossible to determine from the record what weight the jury gave to 

this improper evidence. As a result, the Court cannot determine that this error was 

harmless as a matter of law. 
No. 52724-3-II

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CP at 75-76.

The City moved for discretionary review by this court, and we granted the motion.

ANALYSIS

The City argues that the expert testimony the City introduced at trial was not improper 

opinion testimony that constituted manifest constitutional error and, even if it was, any error was 

harmless. Because the untainted evidence of Thompson’s impairment was overwhelming, we

hold that even if the testimony constituted manifest constitutional error it was harmless beyond a 

reasonable doubt.

We review a municipal court’s decision under RALJ 9.1, performing the same function 

as the superior court. City of Seattle v. May, 151 Wn. App. 694, 697, 213 P.3d 945 (2009).

Thompson did not object to Thomas’s testimony at trial. Generally, we will not consider 

an issue raised for the first time on appeal unless the party claiming the error can show that an 

exception applies. RAP 2.5(a); State v. Robinson, 171 Wn.2d 292, 304, 253 P.3d 84 (2011).

One exception is for a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). To raise 

the issue for the first time on appeal under RAP 2.5(a)(3), Thompson must demonstrate that the 

alleged error is truly of a constitutional dimension and that the error is manifest. State v. 

Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). A manifest constitutional error is still 

subject to a harmless error analysis. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 

(2007).

We presume constitutional error to be prejudicial, and the City bears the burden of 

proving that the error was harmless. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985). 

We find the error harmless “only if convinced beyond a reasonable doubt any reasonable jury 
No. 52724-3-II

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would reach the same result absent the error, and where the untainted evidence is so 

overwhelming it necessarily leads to a finding of guilt.” State v. Easter, 130 Wn.2d 228, 242, 

922 P.2d 1285 (1996) (citation omitted).

Here, even assuming without deciding that these facts raise a manifest constitutional 

error, any error is harmless. The untainted evidence of Thompson’s guilt is overwhelming. 

Sorensen and Covington each testified to the events of the collision—Thompson reversed his 

vehicle into a neighboring parked vehicle, lifting it off the ground. Initially, Thompson appeared 

not to notice the collision, then he accused the passenger of the parked vehicle of hitting him. At 

various points following the collision, Thompson wavered between justifying hitting the parked 

vehicle and denying that any collision occurred. Sorensen and Covington each recalled that 

Thompson seemed unbalanced and slurred his speech.

Officer Hall and Faidley also testified about their interactions with Thompson. Each 

officer observed Thompson showing signs of impairment, including denying that any collision 

occurred, appearing confused, admitting to having multiple alcoholic beverages while taking 

medications, and slurring his speech. After administering field sobriety tests and a DRE 

evaluation, Officer Faidley concluded that Thompson was under the influence of a central 

nervous system depressant. A positive blood test for Temazepam and alcohol confirmed Officer 

Faidley’s conclusion.

Given the overwhelming evidence of Thompson’s impairment, we hold that any 

reasonable jury would have reached the same result absent Thomas’s testimony. Accordingly, 

we hold that any possible error was harmless beyond a reasonable doubt. Thus, we reverse the 

superior court’s order and affirm Thompson’s conviction.
No. 52724-3-II

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A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

Worswick, P.J.

Sutton, J.

Cruser, J.