IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent, No. 71494-5-1 ) DIVISION ONE | v. CO :'.: JAMES ROBERT ANDRE, UNPUBLISHED OPINION E5 'ai Appellant. ) FILED: June 8, 2015 CO ::' Spearman, C.J.

— James Andre appeals his conviction for unlawful 

### possession of a firearm in the second degree. He argues that his trialwas tainted by improper opinion testimony. We agree and reverse. FACTS 

### OnApril 30, 2013, Seattle Police OfficerWilliam Anderson observed a black GMCYukon travelling westbound in the 2100 block of North 122nd Street 

### inSeattle, Washington. A routine check of the vehicle's license plate number revealed that the vehicle had been involved in a mail theft committed a few days 

### earlier. The suspect inthe mail theft was a white female. OfficerAnderson noticed that the driver ofthe Yukon was white, but could not determine whether the driver was male or female because the driver had a hat on. 

### OfficerAnderson decided to stop the vehicle and investigate the mail theft. 

### He activated his vehicle's emergency lights, but the driver did not respond. When OfficerAnderson chirped his siren, the driver responded by increasing his speedNo. 71494-5-1/2 

### and taking an immediate left turn down a dead end street. The driver sped around a guardrail, through a front yard, over a ditch, and across the adjacent street before colliding with a parked car and a fence at the edge ofNorthwest Hospital's campus. Afterthe crash, OfficerAnderson observed a man climb out ofthe driver's 

### side of the Yukon, jump the broken fence, and run into the Northwest Hospital parking lot. OfficerAnderson saw the man's face and specifically noted a tattoo on his neck. The officer yelled at the man to get on the ground, but the man 

### continued to run away. OfficerAnderson attempted to follow the man, but lost sight of him. As OfficerAnderson continued his search on foot, he radioed for backup 

### and described the suspect. Shortly thereafter, other police and hospital security officers arrived in the area to help with the search. While they continued 

### searching, OfficerAnderson wentbackto theYukon toinvestigatethevehicle. A shorttime later, a Northwest Hospital security guard notified him that a man 

### matching the suspect's description had been seen running through theparking lot. OfficerAnderson responded to the area and apprehended the man,whom he was later able to identify as James Andre. Andre was arrested and the Yukon impounded. 

### On May 2, 2013, SeattlePolice Department Sgt. Davisson was assigned

as the lead detective on the case. He wentto the impound yard and 

### photographed theYukon's interior. The photos depicted, among otherthings, a 

## large, olderstring bassand asmaller, similarshaped string instrumentin ablackNo. 71494-5-1/3 

### soft case. Sgt. Davison checked police records to determine whetherthese items had been reported as stolen. He was able to verifythat both items had been reported stolen by Scott Teske on April 28, 2013. After Teske identified the instruments as his, Sgt. Davisson obtained a search warrantfor the vehicle. On May 5, 2015, Sgt. Davisson executed the warrant. Inaddition to the stolen instruments, he found a bag with mail addressed to "Amanda" with several 

### different last names, some women'sjewelry, a bag ofwomen's makeup, and a black backpack containing a loaded 9-milimeter Glock 26 pistol. Verbatim Report ofProceedings (VRP) (12/16/13) at 63. Following the police investigation, Andre was charged with one count of unlawful possession of a firearm inthe second degree, one count ofpossession ofstolen property inthe first degree, and one count ofattempting to elude a pursuing police vehicle. At trial, Andre stipulated he had a prior conviction that precluded him from lawfully possessing the firearm, but argued the State could not prove he knowingly possessed it. The State offered two types ofevidence on the knowledge element: recordings ofseveral ofAndre's telephone calls from jail and the testimony of Sgt. Davisson. Thejury heard the following dialogue from a May 13, 2013 call, inwhich Andre talked to an unidentified female: Andre: It's kinda hard to pull over too when I'm sittin ' there with a fuckin' you know a dope pipe and a fuckin' uh, thing in my lap and fuckin...you...(unintelligible). Andre: Dude, Iwas like Ican't pull over.No. 71494-5-1/4

Andre: Oh, but it's good that you're out there at least you know what Imean? Iwas glad

. . . Female: No. Andre: ... ofthat that you didn't get infuckin' mixed up in that shit. That was (unintelligible) too cause, Iwas like well, shit Igotta...you know what Imean? Female: Yeah. Andre: Yup, get outta here and getthis fuckin' heaterand shit outta here. Female: Where did they find it? Andre: With me. Female: Oh, you didn't get rid of it? Andre: Yeah, but Imean it's I

... Iheld it in my fuckin' hand so, Imean it's like you know it's only a matter of time. Exhibit 24 at 5 (emphasis added). 

### After the jail calls were played to the jury, the parties engaged in a 

### colloquy with the court outside the jury'spresence. The prosecutor advised the court that Sgt. Davisson would explain to the jury the meaning of certain slang terms used during thejail phone calls, specifically the term "heater." VRP (12/16/13) at 80. In response, Andre requested that Sgt. Davisson's testimony be 

### limited to general knowledge of the definitions of street slang rather than his personal thoughts oropinion on Andre's meaning or intent at any given time 

### during thejail calls. The prosecutor noted the proposed testimony was limited to 

### "specificterms that [thewitness] can define" and agreed that"[w]hatthe [witness] believes they weretalking about was another matter." VRP(12/16/13) at 82. TheNo. 71494-5-1/5 

### courtexplicitlyasked the prosecutor if he planned to ask Sgt. Davisson "to tellthe jury ... whatthe intention ofthe calls are?" VRP (12/16/13) at 80. The prosecutor 

### responded, "No.What he believes, no, but about specific terms, yes." ]d. The trial court permitted the testimony, but only as itrelated to the street meaning ofslang terms. The court expressly ruled that "the ultimate issue ofwhat the calls are about or the intent ofthe calls or the conclusion ofwhat type of call it is, itwould be up to thejury "VRP (12/16/13) at 81. The prosecutorthen asked for a

recess to go through his questions "just to ... make sure that we don't, you know, overstep the court's rulings." Id. When Sgt. Davisson took the witness stand, the prosecutor played back the portion ofthe May 13jail call in which Andre refers to getting rid of a "heater." He noted that Sgt. Davisson had testified earlierthat "the word 'heater' was a slang term for a firearm." VRP (12/16/13) at 94. Then, despite the court's earlier 

### ruling, the prosecutor asked Sgt. Davisson, "Based upon your training and experience, what do you think [Andre] was referring to?" VRP (12/16/13) at 94. Inexplicably, the trial court overruled Andre's objection to the question and 

### allowed Sgt. Davisson to testify: "I believe itrefers to the gun thatwas located in the car, and itwas also mentioned earlier inthe call that he got a pistol charge,



### so it's kind ofcontinuing on inthat conversation." VRP (12/16/13) at 95. Atthe close ofevidence, thejury found Andre guilty as charged and the court imposed a standard range sentence. Andre appeals.No. 71494-5-1/6
DISCUSSION Andre contends that his conviction for unlawful possession of a firearm in the second degree must be reversed because Sgt. Davisson's testimony included an improper opinion on Andre's state of mind, the only disputed element ofthe crime, thereby invading the province ofthejury. We agree. Generally, a police officer testifying as an expert is permitted to make reasonable inferences based on the evidence and the officer's training and experience. See State v. Stark, 183 Wn. App. 893, 903-04, 334 P.3d 1196, 1202 

### (2014); City ofSeattle v. Heatlev, 70 Wn. App. 573, 578-79, 854 P.2d 658 (1993); State v. Sanders, 66 Wn. App. 380, 388, 832 P.2d 1326 (1992). But our Supreme Court has held thatexpressions ofpersonal beliefas to the mental state of the accused are inappropriate for opinion testimony in criminal trials even 

### where such opinions are reasonably based on the facts of the case. State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). Where a criminal defendant's mental state is "the core issue and the only 

### disputed element" of the crime, a policeofficer's testimony on the issue amounts to an improper opinion on guilt, which impinges the constitutional rightto a jury trial. Montgomery, 163 Wn.2d at 594; see also State v. Farr-Lenzini, 93 Wn. App. 

### 453, 462-63, 970 P.2d 313 (1999), superseded on other grounds by RCW 46.61.024 (in prosecution for attempting to elude where State had to prove defendant acted willfully, officer's testimony that defendantwas trying to get 

### away was improperopinion onguilt). Police officers' opinions onguilt, whether direct or by inference, are particularly objectionablein criminal cases because,No. 71494-5-1/7 while they carry an "'aura of reliability,' they have "lowprobative value because 

### [officers'] area ofexpertise is indetermining when an arrest is justified, not in determining when there is guilt beyond a reasonable doubt." Montgomery, 163 Wn.2d at 595. Accordingly, our Supreme Court has admonished trial counsel to refrain from phrasing questions in such a way that a witness is invited to express their personal beliefs on guilt. Montgomery, 163 Wn.2d at 592 (noting, as one odious example, questions beginning with "do you believe"). Inthis case, Andre did not dispute his dominion and control over the vehicle where the firearm was located. His sole defense to the firearm charge

was that he had no knowledge that the firearm was present inthe vehicle, and thus, lacked the requisite mental state. See State v. Anderson, 141 Wn.2d 357, 

### 366-67, 5 P.3d 1247 (2000) (recognizing that knowledge is an implicit element of unlawful possession of a firearm under RCW 9.41.040). 

### Sgt. Davisson's testimony that when Andre said "heater" inthe May 13jail call he meant the firearm found in the Yukon is tantamount to a statement that 

### Andre knowingly possessed the firearm. This impermissible comment on Andre's mental state is the unsurprising product ofthe prosecutor's question, "what do 

### you think [Andre] was referring to?" which, like the "do you believe" questions criticized inMontgomery, plainly invited the witness to express his personal beliefs on the issue. VRP (12/16/13) at 94. 

### Sgt. Davisson's comment on Andre's mental state was an opinion onguilt that should have been excluded from evidence. Because admission of improper 

### opinion testimony violates the constitutional rightto a jurytrial, it must beNo. 71494-5-1/8 reversed unless it is harmless beyond a reasonable doubt. State v. Dolan, 118 Wn. App. 323, 330, 73 P.3d 1011 (2003), as amended (Oct. 7, 2003) (citing Demerv, 144 Wn.2d at 759. We are not persuaded that the evidence here meets this test. 

### Although the State attempted to establish thatAndre had the requisite 

### mental state bypresenting recordings ofseveraljailtelephone calls, including the 

### May 13 call, in which Andre makes reference to "heater" he had in the vehicle during the police pursuit, none of the conversations identifies the item as a firearm. Thus, while the evidence might support an inference thatAndre was 

### referring to a firearm, the jurywas also free to acceptdefense counsel's 

### explanation that Andre was referring to his "pipe" or any other "thing" in the car with him during the police pursuit. VRP(12/17/13) at 121-22. On thisrecord, the 

### prejudicial effect of Sgt. Davisson'stestimony isparticularly apparent. Because the trialcourt's error in admitting Sgt. Davisson's opinion 

### testimony was not harmless beyond a reasonable doubt, we reverse.

WE CONCUR:

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