FILED

COURT OF APPEALS

I I51011I

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

2015 FEB - 3 AM 8: 53

STATE OF WASHINGTON

BYNo. 44801 - 

DEMISTATE OF WASHINGTON, 

SEAN ALLEN FORSMAN, 

DIVISION II

Respondent, 

Appellant. 

UNPUBLISHED OPINION

MELNICK; J. - Sean Forsman challenges his jury convictions on three counts of unlawful

delivery of a controlled substance, with two school zone enhancements. Forsman argues that the

trial court abused its discretion when it declined to order disclosure of the identity of the State' s

confidential informant ( CI) or to hold an in camera interview of the CI to determine whether

ordering disclosure would be proper. In his statement of additional grounds ( SAG), Forsman

further asserts that the trial court erroneously quashed his subpoena for Officer Jeffrey Martin' s

arrest or incident reports; the trial court improperly admitted evidence from a measurement device

without a showing of authentication or reliability; the State improperly bolstered the CI' s

credibility; the trial court erroneously instructed the jury that it had to vote unanimously to reject

the aggravating circumstance; the trial court erroneously instructed the jury on the definition of

delivery "; the prosecutor committed misconduct by shifting the burden of proof to Forsman; and, 

the trial court improperly denied Forsman' s motion to dismiss. We reject all ofForsman' s claims

and affirm the trial court. 

FACTS

This case concerns a CI who has worked for the police since 2006 and has participated in

over 24 controlled drug buys. The State never called or intended to call the CI as a witness. 
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Forsman believed the CI to be his friend Marie.' However, the State has never confirmed the CI' s

true identity. 

The CI approached Officer Jeffrey Martin and offered to buy controlled substances from

Forsman. On three occasions, the CI bought crack cocaine from Forsman. All three transactions

followed the same procedure. Prior to meeting Forsman, the police searched the CI to insure she

did not possess any drugs or contraband. Each time, the CI wore sweatpants, a T -shirt, no bra, and

flip -flops or flat shoes. This attire facilitated the search and made it clear she was taking no

contraband with her into the meeting with Forsman. 

Each time, the police gave the CI money. The CI would then meet with Forsman inside

her car. The police monitored the transactions, but could not actually see anything being

exchanged. After each of the three transactions with Forsman, the CI returned with crack cocaine

and without the money. 

Martin used a school district map of bus stops and a laser measurement device to determine

that the second and third drug buys took place less than 1, 000 feet away from a school bus stop. 

A Tacoma school district official testified and corroborated Martin' s findings. . 

Q. I will ask you did you know this individual — 

A. Yes. 

Q. — that you met with? 

A. Yes, I did. I am familiar with the CI, familiar who she is ... Marie, is her name. 

Report ofProceedings ( RP) ( Apr. 1, 2013) at 457. 
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PROCEDURAL HISTORY

The State charged Forsman with three counts of unlawful delivery of a controlled

substance, 2 two of which carried school zone enhancements. 3 Forsman moved to compel the State

to disclose the CI' s identity and contact information. In support of his motion, Forsman argued

that the CI was a material witness because she was the only eyewitness to the actual transaction

and, other than the police, only she could testify to the extent of the pre -buy searches the police

conducted of her person. In a pretrial hearing, the trial court granted the motion only as to the CI' s

gender. The State also disclosed that the CI had previously been convicted of a crime of

dishonesty. . 

Forsman orally re- raised the CI issue at a confession hearing held pursuant to CrR 3. 5. 

Relying on the same arguments he had raised previously, Forsman requested an in camera

proceeding to determine whether the CI had any exculpatory information. The trial court denied

the motion. 

Shortly before trial, Forsman once again requested disclosure of the CI' s identity, as well

as any potential impeachment evidence. Forsman argued that his defense theory required " all

evidence which would permit a reasonable inference ... that the drugs in question in this case

were not delivered to the CI by Forsman." Clerk' s Papers ( CP) at 104. The trial court denied the

motion because the CI was not being called as a witness and was not subject to impeachment. 

At trial, Forsman theorized that the CI was his friend Marie. He testified that he had not

sold her drugs and that Marie met with him to borrow money. The CI did not testify at trial. None

2

RCW 69. 50.401( 1)( 2)( a) -(d). 

3

RCW 69.50.435; RCW 9. 94A.533( 6). 
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of her statements to Forsman or the police were offered or used. The State did not want to

jeopardize the CI or her cases. 

The jury returned verdicts of guilty on all three counts and found the State proved the

school zone enhancements. Forsman unsuccessfully moved to have the jury verdict, set aside

because he was unable to confront the CI. He timely appealed. 

ANALYSIS

I. STANDARD OF REVIEW

The trial court' s decision whether to disclose an informer' s identity is reviewed for abuse

ofdiscretion. State v. Harris, 91 Wn.2d 145, 152, 588 P. 2d 720 ( 1978). Similarly, the trial court' s

decision whether to hold an in camera hearing is reviewed for abuse ofdiscretion. State v. Vazquez, 

66 Wn. App. 573, 582, 832 P.2d 883 ( 1992). A trial court abuses its discretion if the decision is

manifestly unreasonable, based on untenable grounds, or based on untenable reasons. State v. Dye, 

178 Wn.2d 541, 548, 309 P. 3d 1192 ( 2013) ( quoting In re Marriage ofLittlefield, 133 Wn.2d 39, 

46 -47, 940 P. 2d 136 ( 1997)). 

II. DISCLOSURE MOTION

Forsman argues that the trial court abused its discretion by refusing to order the disclosure

of the CI' s

identity. The State argues that the trial court did not abuse its discretion because

Forsman failed to show that the CI' s testimony was either relevant and helpful to Forsman' s

defense, or essential to a fair determination. We agree with the State and affirm the trial court. 

In general, the government is privileged to refuse to disclose the identity of informants who

provide information of criminal violations. State v. Petrina, 73 Wn. App. 779, 783, 871 P. 2d 637

1994) ( citing Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 1 L. Ed. 2d 639 ( 1957)). 

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Disclosure of an informant' s identity shall not be required where the informant' s identity is a

prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the

defendant." CrR 4. 7( f)(2). However, the informer' s privilege is limited by a defendant' s right to

due process and a fair trial. " When `disclosure of an informer' s

identity ... is relevant and helpful

to the defense of an accused, or is essential to a fair determination of a cause, the privilege must

give way. "' Petrina, 73 Wn. App. at 783 -84 ( quoting Roviaro, 353 U.S. at 60 -61). Furthermore, 

a defendant has a Sixth Amendment right to compel attendance of material witnesses, so long as

the defendant can establish "' a colorable need for the person to be summoned.'" Petrina, 73 Wn. 

App. at 784 ( quoting State v. Smith, 101 Wn.2d 36, 41 -42, 677 P. 2d 100 ( 1984)). 

In deciding whether to allow disclosure, the court must " balance ` the public interest in

protecting the flow of information against the individual' s right to prepare his defense. "' State v. 

Harris, 91 Wn.2d 145, 150, 588 P. 2d 720 ( 1978) ( quoting Roviaro, 353 U.S. at 62). In applying

this test, the court must consider the facts of the particular case, including the crime(s) charged, 

the possible defenses, the possible significance of the informer' s testimony, and other relevant

factors. Harris, 91 Wn.2d at 150 ( citing Roviaro, 353 U.S. at 62). "[ I]fthe court determines that

disclosure is relevant and helpful to the defense, or essential to a fair determination of the cause, 

the court may require disclosure." Harris, 91 Wn.2d at 150 ( citing Roviaro, 353 U.S. at 60 -61). 

The defendant bears the burden of showing that the above standards require disclosure. Petrina, 

73 Wn. App. at 784 ( citing State v. Massey, 68 Wn.2d 88, 92, 411 P. 2d 422, cert. denied, 385 U. S. 

904 ( 1966)). 

In this case, the CI participated in the delivery of drugs. She arranged the deliveries with

Forsman. Nobody else was present when they occurred. Therefore, she was the " only witness in

a position to amplify or contradict the testimony of government witnesses." Roviaro, 353 U.S. at
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64. But being a material witness " is not dispositive of the question whether the Roviaro standard

requires disclosure." Harris, 91 Wn.2d at 151. The trial court must also consider the

countervailing factors against disclosing the CI' s identity. Here, the CI was engaged in active and

ongoing investigations, which would be compromised ifher identity were revealed. Furthermore, 

she had been involved in at least 24 investigations in the past. Revealing the CI' s identity would

potentially be a risk to her personal safety, not only from Forsman, but from any ofthe others she

had previously helped the police investigate. 

Another factor in favor of nondisclosure is that Forsman knew the identity of the CI to a

reasonable degree of certainty. Although the State never confirmed the CI' s identity, Forsman had

an abiding belief that the CI was a friend of his: 

Q. I will ask you did you know this individual — 

A. Yes. 

Q. — that you met with? 

A. Yes, I did. I am familiar with the CI, familiar who she is. So December around

the 7th, 10th, whatever, the CI, Marie, is her name, Marie contacted me. 

Q. How long have you known her approximately? 

A. Marie? Probably four years, five years, around there. 

Q. Is she someone that you were friends with or what? 

A. Yeah. She was someone that I was familiar with. I had a personal relationship

with. 

Report of Proceedings ( RP) ( Apr. 1, 2013) at 457 -58. Where, as here, the defendant reasonably

guessed the identity of the informant, knew her, and did not have any of her statements from the

transactions introduced into evidence, the trial court does not abuse its discretion by refusing to

disclose the informant' s identity. State v. Riggins, 11 Wn. App. 449, 451 -52, 523 P.2d 452 ( 1974). 

In addition, it must be noted that the defendant never subpoenaed his friend Marie to testify. 
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The trial court acted reasonably, for tenable reasons, and on tenable grounds. The

particular facts of this case, along with the public policy for the informer' s privilege, leads us to

hold the court did not abuse its discretion. We affirm the trial court. 

III. IN CAMERA HEARING

Forsman raises the alternative argument that the trial court should have at a minimum held

an in camera interview of the CI to determine whether she had any information that would be

relevant or helpful to the defense. The State argues that Forsman failed to carry his burden to show

the necessity of an in camera hearing, and accordingly the trial court did not abuse its discretion. 

We agree with the State and affirm the trial court. 

CrR 4. 7( h)( 6) provides: " Upon request of any person, the court may permit any showing

of cause for denial or regulation ofdisclosure, or portion of such showing, to be made in camera." 

Such an in camera hearing is the " preferred method" for determining whether disclosure of an

informer' s identity is necessary. Harris, 91 Wn.2d at 150. The court should hold an in camera

hearing if the defendant can make an initial showing that the informant would have evidence

relevant to the defendant' s innocence. State v. Potter, 25 Wn. App. 624, 628, 611 P. 2d 1282

1980). Doubts should be resolved in favor of holding the hearing. State v. Cleppe, 96 Wn.2d

373, 382, 635 P. 2d 435 ( 1981). However, the trial court may refuse to hold the hearing if the

defendant' s reason for seeking the informant' s testimony is only speculative. Potter, 25 Wn. App. 

at 628; Cleppe, 96 Wn.2d at 382. 

Here, Forsman' s theory was that the CI' s testimony might indicate that the pre -buy

searches were not thorough, lending credence to Forsman' s theory that the drugs had not come

from Forsman but had been brought by the CI herself. This theory was entirely speculative. 

Forsman made no showing that would indicate that an in camera hearing might reveal evidence of

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the CI' s supposed plot to frame Forsman by planting drugs on herself. The trial court did not abuse

its discretion by declining to credit Forsman' s mere conjecture. 

IV. SAG ISSUES

A. Subpoena for Officer Arrest /Incident Reports

Forsman argues that the trial court improperly granted the State' s motion to quash a

subpoena for the arrest and incident reports of Police Investigator Jeffrey Martin, a witness in

Forsman' s case. Forsman argues that the denial of access to these reports violated his

confrontation clause rights. We reject his claim. 

We review a trial court' s evidentiary rulings for abuse of discretion. State v. McDonald, 

138 Wn.2d 680, 693, 981 P. 2d 443 ( 1999). Similarly, we review a trial court' s ruling on the scope

of cross - examination for abuse of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P. 3d 1189

2002). 

The confrontation clause of the Sixth Amendment guarantees a defendant the opportunity

to confront the witnesses against him through cross - examination. Delaware v. Van Arsdall, 475

U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d 674 ( 1986). This includes the right to question a

witness about potential bias. Van Arsdall, 475 U.S. at 678 -79. However, trial judges have " wide

latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such

cross - examination based on concerns about, among other things, harassment, prejudice, confusion

of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." 

Van Arsdall, 475 U.S. at 679. 

Here, Forsman requested a list of all of the defendants Martin had arrested throughout his

career for drug violations, and the race of each defendant. Forsman argued that this discovery was

necessary because Martin may have been biased against Forsman because ofhis race. But Forsman

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offered no specific reasons why Martin might be biased, other than the general assertion that "racial

profiling is pervasive in society." RP ( Sept. 25, 2012) at 5. Furthermore, even without the arrest

records, Forsman was able to conduct a searching cross - examination of Martin at trial. In light of

the burdensome nature of Forsman' s request, and the lack of prejudice to Forsman' s cross - 

examination, the trial court did not abuse its discretion by denying Forsman' s discovery request. 

B. Measuring Device

Forsman argues that the trial court abused its discretion by allowing the State to introduce

evidence of the results of a laser measuring device without a showing of authentication or

reliability. We reject his claim. 

Evidence must be authenticated before it is admitted. ER 901( a). However, the

authentication requirementis waived when the opponent fails to object on authentication grounds. 

State v. Roberts, 73 Wn. App. 141, 145, 867 P. 2d 697 ( 1994) ( citing Seattle v. Bryan, 53 Wn.2d

321, 324, 333 P.2d 680 ( 1958); State v. Trader, 54 Wn. App. 479, 484 -85, 774 P. 2d 522 ( 1989); 

State v. Hancock, 44 Wn. App. 297, 303, 721 P. 2d 1006 ( 1986); United States v. Rivera - Cintron, 

29 M.J. 757, 759 (A.C.M.R. 1989); Beckman v. Carson, 372 N.W.2d 203, 209 (Iowa 1985)). 

Here, Forsman did not object at trial to the introduction of the measuring device results. 

Accordingly, the requirement of authentication was waived and the trial court did not err by

admitting the distance measurements. Roberts, 73 Wn. App. at 146 ( citing 5 KARL TEGLAND, 

EVIDENCE § 10( 1), at 25 ( 3d ed. 1989)). Forsman' s claim fails. 

C. Bolstering

Forsman argues that the prosecutor improperly bolstered the credibility of the State' s

confidential informant. We reject his claim. 

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Here, Forsman failed to timely object to the prosecutor' s alleged vouching. Accordingly, 

he can raise prosecutorial misconduct on appeal only ifthe alleged misconduct was so flagrant and

ill- intentioned that no curative instruction could have mitigated the prejudice. State v. O' Donnell, 

142 Wn. App. 314, 328, 174 P. 3d 1205 ( 2007). A prosecutor improperly vouches for the

credibility of a government witness when he either ( 1) " place[ s] the prestige of the government

behind the witness" or ( 2) " indicate[ s] that information not presented to the jury supports the

witness' s testimony." State v. Coleman, 155 Wn. App. 951, 957, 231 P.3d 212 ( 2010) ( citing

United States v. Roberts, 618 F.2d 530, 533 ( 9th Cir. 1980)). 

Neither occurred in this case. The prosecutor merely rebutted the defense' s theory that the

CI brought her own drugs to the controlled buys in order to frame Forsman. In doing so, the

prosecutor relied on facts that his evidence had established, such as Martin' s search procedures, 

the fact that the CI was working extensively with the police, and the fact that the CI got along well

with Forsman. The prosecutor also made the reasonable inference that if the CI was really

smuggling drugs into her meetings with Forsman, the CI would expose herself to significant legal

liability. The prosecutor' s comments were not flagrant or ill- intentioned, and Forsman' s claim

fails. 

D. Unanimity

Forsman argues that the court erroneously instructed the jury that it had to be unanimous

in order to reject the special finding that his drug sales occurred within 1, 000 feet of a school bus

stop. SAG at 4. We reject his claim. 

Forsman' s argument is foreclosed by our Supreme Court' s decision in State v. Nunez, 174

Wn.2d 707, 715, 285 P. 3d 21 ( 2012). There, our Supreme Court held that the Sentencing Reform

act of 1981 requires unanimity for any verdict on aggravating circumstances, whether the jury

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imposes or rejects an aggravator. Nunez, 174 Wn.2d at 715. The court correctly instructed the

jury when it delivered the instruction that the jury must be unanimous to either accept or reject the

alleged aggravators. Forsman' s claim fails. 

E. Definition of Delivery

Forsman argues that the court improperly relieved the State of its burden to prove every

element of the crime charged when it provided an erroneous definition of "delivery" in the jury

instructions. SAG at 5. We reject his claim. 

WPIC 50. 07 defines " delivery" as " the [ actual] [ or] [ constructive] [ or] [ attempted] transfer

of a [ controlled substance] [ legend drug] from one person to another." 11 WASHINGTON PRACTICE: 

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 50. 07, at 960 ( 3rd ed. 2008). Here, the

court instructed the jury that " delivery" means " the transfer of a controlled substance from one

person to another." CP at 156. The court properly gave the delivery instruction as described in

the WPIC, with the omission of the optional terms. But even if the delivery instruction was

erroneous, any error did not relieve the prosecution of its burden to prove each element beyond a

reasonable doubt. Rather, by specifying that transfer need not be actual, the omitted terms would

have been harmful to Forsman' s case. Because the court' s delivery instruction did not relieve the

prosecution of its burden, any error was harmless. State v. Brown, 147 Wn.2d 330, 340 -41, 58

P. 3d 889 ( 2002). Forsman' s argument fails. 

F. Prosecutorial Burden - Shifting

Forsman argues that the prosecutor committed misconduct by shifting the burden of proof

to him. We reject his claim. 

Because Forsman failed to timely object to the prosecutor' s closing argument, he can raise

a claim of prosecutorial misconduct on appeal only if the alleged misconduct was so flagrant and

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ill- intentioned that no curative instruction could have mitigated the prejudice. O' Donnell, 142

Wn. App. at 327 -28. 

Here, the prosecutor argued to the jury that

If you think it' s a real possibility that this defendant is the victim of a frame

job, acquit him. If you think it' s a real possibility that the police lied about his

confession, acquit him. If you think it' s a real possibility that what he told you on

the stand was the truth, acquit him. 

But if you don' t think those things, if you look at the evidence and it points

to one conclusion, then return a verdict that holds him accountable. 

RP ( Apr. 2, 2013) at 594. It is misconduct for a prosecutor to argue that in order to acquit a

defendant, the jury must find that the State' s witnesses are lying. State v. Fleming, 83 Wn. App. 

209, 213, 921 P. 2d 1076 ( 1996) ( citing State v. Casteneda - Perez, 61 Wn. App. 354, 362 -63, 810

P. 2d 74 ( 1991); State v. Wright, 76 Wn. App. 811, 826, 888 P. 2d 1214 ( 1995); State v. Barrow, 60

Wn. App. 869, 874 -75, 809 P.2d 209 ( 1991)). However, the prosecutor did not argue that the jury

was required to believe that the police were lying in order to acquit Forsman. The prosecutor

argued that the jury should acquit Forsman if they believed the police were lying, or if they

believed Forsman had been framed, or they found Forsman' s testimony credible. Any of the three

possibilities, in other words, would be sufficient to acquit Forsman. 

It is true that the prosecutor implied that the jury should find Forsman guilty if it did not

believe any of the three enumerated theories. But the prosecutor immediately thereafter reminded

the jury that it should convict Forsman only ifthe evidence led to only "one conclusion." RP (Apr. 

2, 2013) at 594. Any prejudice could have been mitigated by a curative instruction once again

reminding the jury that it was required to acquit unless it had an abiding belief in Forsman' s guilt. 

Forsman never requested such a curative instruction. The prosecutor' s remarks, in context, 

were not flagrant or ill - intentioned, but a misstatement that the prosecutor immediately corrected

by telling the jury that they should convict Forsman only ifthe evidence led to no other conclusion. 

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We hold that the prosecutor' s remarks do not warrant reversal given the heightened standard of

review. See State v. Emery, 174 Wn.2d 741, 761, 278 P. 3d 653 ( 2012). 

G. Sufficient Evidence

Forsman argues that the trial court should have granted his motion to dismiss because the

evidence was insufficient to go to a jury. We reject his claim. 

Evidence is sufficient to support a conviction if, viewed in the light most favorable to the

prosecution, it permits any rational trier of fact to find the essential elements beyond a reasonable

doubt. State v. Aten, 130 Wn.2d 640, 667, 927 P. 2d 210 ( 1996). Upon review of the sufficiency

of the evidence, we draw all reasonable inferences from the evidence in the State' s favor. State v. 

Gregory, 158 Wn.2d 759, 817, 147 P. 3d 1201 ( 2006) ( quoting State v. Clark, 143 Wn.2d 731, 769, 

24 P. 3d 1006, cert. denied, 534 U.S. 1000 ( 2001)). We will not review the jury' s determination

ofthe credibility of a witness or evidence. State v. Myers, 133 Wn.2d 26, 38, 941 P. 2d 1102 ( 1997) 

citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 ( 1990)). Rather, we treat all of the

State' s factual allegations and inferences as true. State v. Lubers, 81 Wn. App. 614, 618 -19, 915

P. 2d 1157 ( 1996) ( quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 ( 1992)). 

Taking the State' s factual allegations and inferences as true, a rational trier of fact could

find the elements of unlawful delivery of a controlled substance with school zone enhancements

beyond a reasonable doubt. The State' s evidence established that the CI met with Forsman three

times. Each time, the CI brought only cash into the transaction, and returned with only cocaine. 

Thus a rational trier of fact could determine that the CI had purchased cocaine from Forsman. 

Furthermore, the State' s evidence established that two of the transactions took place within 1, 000

feet of a school bus stop. The evidence was sufficient for the jury to convict Forsman, and

Forsman' s argument fails. We affirm the trial court. 

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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. 

We concur: 

A,cI

rgen, A.J. C.

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