IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 73009-6-1 G*3 STATE OF WASHINGTON, Respondent,

v. IGNACIO MOLINA PEREZ, Appellant. ^ 5>1

I DIVISION ONE

UNPUBLISHED FILED: March 7, 2016
Cox, J. - "'Generally, witnesses are not permitted to testify regarding the veracity of another witness because such testimony invades the province ofthe 

### juryas the fact finder in a trial.'"1 Here, a detective did not provide improper opinion testimony on a witness's credibility. Even ifthe detective's testimony was improper opinion testimony, the errorwas harmless because it did not materially affect the trial outcome. We affirm. In October2013, the Seattle police department collaborated with other 

### agencies in an undercover drug operation. Detective Pete Lazarou worked with
a confidential informant, Justin Woodard, inthe operation. Woodard approached 

### Ignacio Perez to purchase cocaine while under surveillance. Woodard and Perez allegedly exchanged money for the cocaine. Woodard returned to Detective Lazarou with the cocaine. The police arrested Perez. 1 State v. Mohamed. 187 Wn. App. 630, 650, 350 P.3d 671 (2015) (quoting State v. Demerv. 144 Wn.2d 753, 764, 30 P.3d 1278 (2001) (plurality opinion)). 3S 3E***-3No. 73009-6-1/2 The State charged Perez with delivering a controlled substance. Perez's
case proceeded to trial, and Detective Lazarou testified. On direct examination, the State asked Detective Lazarou about the process of using a confidential informant. Detective Lazarou stated thatthe Seattle police department conducts "reliability buys [to] prove [informants] to be reliable." The State then asked Detective Lazarou to describe the "reliability buy" 

### process, and Perez objected on the basis of "[i]mproper bolstering." The trial court overruled the objection. Detective Lazarou described the process, stating 

### police "deem [the informant] reliable" ifthe informantfollows their directions while 

### buying narcotics before the informant is placed intothe field. Detective Lazarou then testified that he performed these preliminary buys withWoodard before placing him inthe field. 

### Thejury found Perez guiltyas charged. The court entered itsjudgment and sentence on thejury verdict. Perez appeals. WITNESS VOUCHING 

### Perez argues that Detective Lazarou vouched forWoodard, depriving Perez of a fair trial. We disagree. Trial courts have "wide discretion to determine the admissibility of evidence."2 We review for abuse ofdiscretion a trial court's decision to admit evidence.3

2 Demerv, 144 Wn.2d at 758. 3State v. Quaale, 182Wn.2d 191, 196, 340 P.3d 213 (2014).No. 73009-6-1/3 Opinion Testimony "'Generally, witnesses are not permitted to testify regarding the veracity of another witness because such testimony invades the province ofthejury as the 

### fact finder in a trial.'"4 Awitness's expression ofpersonal belief about a witness's 

### veracity is inappropriate opinion testimony.5 The trial court must determine whether evidence is admissible opinion 

### testimony when it is offered.6 The court must consider "(1) the type ofwitness involved, (2) the specific nature ofthe testimony, (3) the nature ofthe charges, 

### (4) the type ofdefense, and (5) the other evidence before the trier offact."7 Specifically, the State cannot indirectly vouch for a witness by eliciting 

### police officertestimony concerning the credibility of a crucial witness.8 "Such testimony from a law enforcement officer may be especially prejudicial because 

### the officer's testimony often carries a special aura ofreliability."9 State v. Kirkman10 is instructive. Inthat case, Charles Kirkman and Ruben 

### Candia were convicted of child rape.11 Detective Kerr's testimony described his involvement in Kirkman's case.12 He interviewed the victim and testified to the 

### "preliminary competency protocol" he used to determine the victim'sability to tell

4Mohamed, 187 Wn. App. at 650 (quoting Demerv. 144 Wn.2d at 764). 5 State v. Perez-Valdez, 172 Wn.2d 808, 817, 265 P.3d 853 (2011). 6 Quaale, 182 Wn.2d at 199. 7id at 199-200. 8State v. Chavez, 76 Wn. App. 293, 299, 884 P.2d 624 (1994). 9 Demerv, 144 Wn.2d at 765. 10159Wn.2d918, 155P.3d 125(2007). 11 id, at 921. 12 Id. at 922.No. 73009-6-1/4 

### the truth.13 He conducted this protocol because he was "'interested in'"the 

### victim's ability "'todistinguish between truth and lies.'"14 Hestated that the victim distinguished truth from lies, that he asked the victim to promise to tellthe truth, 

### and that the victim explicitly promised to do so.15 Similarly, inCandia's case, Detective Greer's testimony described the competency protocol she conducted to determine the victim's ability to 

### distinguish truth from lies.16 Detective Greer also asked the victim to promise to tell the truth.17 

### Kirkmanand Candia argued thatthe detectives improperly testified to the victims' credibility.18 The supreme court determined that Detective Kerr's 

### testimony "simply" accounted for the interview protocol used to obtain the victim's statement and "'merelyprovided the necessary context that enabled the jury to
assess the reasonableness of the
.. . responses.'"19 The court also concluded that Detective Kerr did not testifythat he believed the victim orthat she told the truth.20 The court made a similar conclusion as to Detective Greer's testimony.21 

### The court also stated that such protocol "does not carry a 'special aura of 

### reliability' beyond the 'special aura ofreliability' conferred upon a witness when a

13 id at 922-23. 14jd, at 930. 15 Id, at 922, 930. 

### 16 Id, at 925. 17 Id, 18 ]d, at 929. 

### 19 ]d, at 931 (alteration inoriginal) (quoting Demerv, 144 Wn.2d at 764). 20jd, 21 Id. at 934.No. 73009-6-1/5 

### judge swears him or her to tellthe truth in front ofthejury at trial."22 Thus, the court concluded that a detective's testimony as to interview protocol "does not 

### improperly comment ofthe truthfulness ofthe victim."23 Here, the portion of Detective Lazarou's testimony at issue described the process ofobtaining and using a confidential informant. The testimony included descriptions ofhow the police connectwith the informant, the preliminary actions taken, and informant compensation. Detective Lazarou's testimony did not speakto the ultimate issue at trial—whether Perez delivered a controlled substance. On direct examination, Detective Lazarou was asked about the process of 

### using a confidential informant. Detective Lazarou stated that Seattle police department conducts "reliability buys [to] prove [informants] to be reliable." Detective Lazarou also stated they "deem [the informant] reliable" ifthe informant follows their directions while buying narcotics before placing the informant inthe field. Detective Lazarou then testified thatWoodard performed these preliminary buys. 

### This testimony "simply" accounted forthe protocol used to obtain confidential informants and "'provided the necessary context'" forWoodard's prior 

### testimony, enabling thejury to assess Woodard's involvement and the

22jd, at 931. 23 Id. at 934.No. 73009-6-1/6 

### "'reasonableness of[his] responses.'"24 More importantly, Detective Lazarou did not testify that he believed Woodard or that Woodard told the truth. Thus, this evidence was not improper opinion testimony. Accordingly, the trial court did not abuse its discretion by admitting this testimony. Harmless error Even ifwe concluded that Detective Lazarou's testimony was improper opinion testimony, the errorwas harmless underthe facts of this case. We apply the nonconstitutional harmless error standard to evidentiary errors.25 Under this standard, "'an accused cannot avail himselfof error as a 

### ground for reversal unless it has been prejudicial.'"26 An "'erroris notprejudicial unless, within reasonable probabilities, had the error not occurred, the outcome 

### of the trial would have been materially affected.'"27 

### Here, admitting the portion of Detective Lazarou's testimony at issue did not prejudice Perez. His testimony was cumulative of other evidence. Woodard testified that he and Perez exchanged the money and cocaine in
a "hand to hand" manner, where they essentially shook hands to do the 

### exchange. Woodard latertestified that the exchangewas not a hand to hand transaction and that he "was wrong." Rather, Perez placed the cocaine on a 

### newspaper stand, thenWoodard handed himthe money and took the cocaine.
24 [d, at 931 (quoting Demerv, 144 Wn.2d at 764). 25 See State v. Garcia, 179 Wn.2d 828, 848, 318 P.3d 266 (2014). 26 State v. Barry, 183 Wn.2d 297, 303, 352 P.3d 161 (2015) (quoting State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980)). 

### 27 ]d, (emphasis omitted) (internal quotation marksomitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).No. 73009-6-1/7 Detective Edward Hagerty testified to his involvement inthe case, stating that he saw Detective Lazarou search Woodard to ensure Woodard did not possess narcotics before the transaction with Perez. Detective Lazarou went through Woodard's pockets and had Woodard empty his pockets. No contraband was found during this search. Detective Hagerty saw thatWoodard had returned with cocaine after meeting Perez. Detective Hagerty also observed Detective Lazarou search Woodard afterthe transaction. Again, there was no contraband. Detective Lazarou described his search ofWoodard before the transaction. He found no contraband on Woodard. He also found no contraband

on Woodard when he returned with cocaine. Officer Andrew Zwaschka testified that he observed the transaction. Officer Zwaschka observed Woodard and Perez meet and "exchanged 

### something." He also observed Woodard "g[i]vethe [successful buy] signal." This led OfficerZwaschka "to believe that a suspected narcotics transaction had just occurred." He also "saw what [he] suspected was a hand-to-hand transaction." 

### Detective Clayton Agate also testified to seeing and photographing Woodard's meeting with Perez during the alleged transaction. Insum, the testimony ofdetectives and officers otherthan Detective Lazarou evidenced their observations and involvement in Woodard's transaction 

### withPerez. Thus, this testimony was not the only evidence available to thejury 

### to determine guilt. Accordingly, admission of this detective's testimony was cumulative for purposes ofthejury finding Perez guilty.No. 73009-6-1/8 

### Insum, any prejudice that could have resulted from an erroneous 

### admission of the detective's testimony would not have "'materially affected'" the trial outcome.28 

### Perez argues that Detective Lazarou's vouching for Woodarddeprived Perez of a fairtrial. He specificallyargues that Detective Lazarou's testimony 

### constituted the police'sopinion "thatWoodard was a provenreliable and thus credible witness." 

### Asexplained earlier, admission of thisportion ofDetective Lazarou's 

### testimonywas proper. And even ifthis wereimproper, itwould be harmless. Perez also argues that the erroneous admission ofDetective Lazarou's 

### testimonywasprejudicial because "Woodard'stestimonywascrucialto the State's case." Aspreviously discussed,Woodard's testimonywas notcrucialfor 

### thejurytofind Perezguilty. Otherdetectives and officers testified totheir involvement in the case and their observation of the transaction. Thus, their 

### testimonywas alsoavailableto thejury as evidence ofguilt. STATEMENT OF ADDITIONAL GROUNDS 

### Pursuantto RAP 10.10, Perez raises three additional grounds forreview. 

### He argues thathereceived ineffective assistance ofcounsel due to a"failureto 

## investigate orconsult."29 He also argues thatthe trial courtabused its discretion by allowing afalse statement. Lastly, heargues thatthetrial courtabused its

28 Barry, 183Wn.2d at 303 (internal quotation marks omitted)(quoting Smith, 106Wn.2dat780). 29 Statement ofAdditional Grounds at 1.

8No. 73009-6-1/9 discretion by improperly limiting his time for trial preparation. Because this record is inadequate to review these issues, we decline to review them. 

### On direct appeal, we do not consider matters outside the record.30 "The appropriate means of raising matters outside our record is through the filing of a 

### personal restraint petition."31 Here, this record on appeal does not allow us to review Perez's claims. Specifically, the record is silent as to how or what his counsel allegedly failed to investigate. The record is also silent as to how Perez's counsel allegedly failed to consult with him, what statement was "false" and how the court allowed it, or how the court improperly limited Perez's time for trial preparation. We affirm thejudgment and sentence. 

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WE CONCUR: 

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30 State v. Kinzle, 181 Wn. App. 774, 786, 326 P.3d 870, review denied, 181 Wn.2d 1019(2014). 31 State v. Hart, 188 Wn. App. 453, 466, 353 P.3d 253 (2015).