### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, 

### ) No. 78802-7-I

Respondent, 

### )

) v. 

### ) UNPUBLISHED OPINION ROBERTANDERSON, 

### ) ) FILED: March 9, 2020 Appellant. VERELLEN, J.

— RobertAnderson appeals his convictions for possession of methamphetaminewith intentto deliver and bail jumping. He asserts that reversal is required because the trial court admitted improper police opinion testimony and because the prosecutorvouched forthe officers’ credibility during closing arguments. We conclude thatthe officers’ testimony did not invade the province of thejury. Even ifthe prosecutor improperlyvouched forthe credibility ofthe police witnesses, there is no reasonable probabilitythatthe error affected the outcome of the trial. Anderson also fails to establish he is entitled to a newtrial based on cumulative error. Therefore, we affirm. FACTS On the evening ofJanuary21, 2016, SergeantJayTaylorand Sergeant Jeff Hendrickson ofthe Everett Police Department contacted RobertAnderson onNo. 78802-7-1/2

Smith Avenue in Everett, nearthe Men’s Gospel Mission. The officers stopped Anderson on a search warrant,1 placed him in handcuffs to execute the search, and read him his Miranda2 warnings. During the search, officers located a plastic soap box in a small zipper pocket in the left leg ofAnderson’s pants. Inside the soap box, officers discovered several loose cigarettes and 14 small plastic bags containing a crystalline substance thatwas later identified as methamphetamine. The officers also recovered a cell phone from Anderson’sjacket pocket. The phone contained multiple text messages discussing the sale and purchase of controlled substances. Sergeant Taylor arrested Anderson and transported him to the Snohomish County Jail. SergeantTaylortestified thatwhen they arrived atthejail, Anderson spontaneously admitted that he was selling drugs to make a little money before going to a commercial trucking school. On October 11, 2017, the State charged Anderson with one count of possession ofa controlled substance (methamphetamine) with intentto manufacture or deliver. AfterAnderson failed to appearfor his omnibus hearing, the State filed an amended information adding one count of bail jumping. Because the State anticipated Anderson would argue the drugs were for personal use and not delivery, it moved to allow police officers to testify in their expert capacity based on theirtraining and experience regarding the

1 Reference to the search warrantwas suppressed attrial. 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 10 Ohio Misc. 9 (1966).

2No. 78802-7-113

characteristics and behaviors oftypical drug dealers and drug users. The defense soughtto restrict officers from opining thatAnderson was a drug dealer predicated on the number of calls on his phone, the high drug crime rate in the area, Anderson’s lack of paraphernalia or othersigns of being a non-user, orthatthe amount of methamphetamine seized in the baggies found on Anderson was consistentwith amounts used by people on the streets in the area. The court ruled thatthe police officers could indicate whetherthey believed Anderson was underthe influence, but it disallowed “general testimony as to whethersomeone does or does not look like a meth user.”3 The court reserved ruling on other individual issues pending testimony, but cautioned that ‘the focus ofthe State’s case needs to be on the defendant’s conductand the evidence thatthey obtained

• . . and nottoo much generalizing because that can certainly be objectionable.”4 Attrial, the State asked OfficerTaylor about his “training [and] experience as far as recognizing indicators thatwould indicate a drug user.”5 Defense counsel objected that such testimonywas barred bythe court’s pretrial rulings, but the court disagreed and allowed OfficerTaylorto answer. The State then elicited the following testimony: Q: What are some ofthe indicators thatyou’ve been trained and in yourcareer, overthe course ofyour career, thatwould indicate a drug user?

~ Report of Proceedings (RP) (July 23, 2018) at 18.

~ Id. at 20. 51d.at 113.
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A: A drug user in—so common to the drug users that I have run into during my employment at Everett, theywill have typically some kind ofdrug paraphernalia on them forthe use of whatever substance it is.

. . . [T]hey may have a quantity of that substance on them. Typically, a fairly small or not a high dollaramount because a user is typically using the substance and not hoarding it or storing it for any reason, so they’ll go through it. So those would be the two

. . . main things, I’d say. Q: O.K. And have you been trained in differentiating between a drug userversus a drug dealer? A: Yes. Q: O.K. And what is thattraining [and] experience? A:

. . . . So it’s kind ofthe training part of it, and then seeing in real life the difference, you typically are going to see a larger quantity ofa substance. It’s going to be packaged differently as opposed to a user. Ifthey buy a package, itwill be one package; whereas a dealertypically wiII—~61 Defense counsel again objected on the ground that OfficerTaylor’s testimonywas “going towards the issue thatthejury has to find.”7 The court sustained the objection/ The State then asked OfficerTaylor, ‘And in the course ofyour career, are there certain indicators

. . . which would indicate to you the difference in a drug user and drug dealer?8 Defense counsel again objected. This time, the court

61d.at 113-15. Hd.at 115. 8k1.at 115-16.

4No. 78802-7-115

ruled, “In terms of in a general sense, I’ll allow some limited testimony, but I don’t want to go too fardown this road, counsel.”9 The State next asked OfficerTaylor, “What are some ofthe signs thatyou would lookfor?,” and OfficerTaylor responded, “Quantity, method of packaging, amount of money, measuring equipment, communication equipmentfor setting up deals.”1° The State later asked SergeantTaylor how often individuals use theirtrue name in setting up a drug transaction. The court sustained defense counsel’s objection: Well, I mean, he certainly testified and I did allow it in terms of some signs with respectto amount and packaging and that sort of thing, and I do thinkthat’s probably maybe beyond the province of what somebody might know or not know. But in terms of.

. . whether someone’s using the correct name and thatthat means it’s a drug dealeras opposed to a drug user, that sort ofthing, I’m not convinced thatthat’s relevanttestimony.[11] The following day, the State called Officer Oleg Kravchun to testify as an expert on drug transactions based on his training and experience. Defense counsel argued that such testimonywas unnecessary because thejury could evaluate the factual evidence in the case based on its ordinary experience and knowledge. The court ruled that Officer Kravchun could educate thejury regarding

9Id.at 116. ~° Id. ki. at 145.

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“what is typically involved in a drug transaction”12 but cautioned thatthe officer could not be asked to opine whetherthe facts ofthis case fit that profile. Officer Kravchun then testified regarding howdrugs are typically packaged in a drug transaction, the range ofamounts sold, how methamphetamine is typically ingested, and howdrug transactions are set up. Anderson testified attrial. He denied telling OfficerTaylorthat he was selling drugs to make money. Rather, he said that he was living atthe Everett men’s shelter and trying to earn moneyworking as an unloaderatAtlas Van Lines while he renewed his truck driver’s license. He testified thatthe pants he was wearing on the evening he was arrested were borrowed from another man atthe shelter. As forthe text messages showing drug dealing conversations on his phone, he explained that he often allowed other people to borrow it. Thejury convicted Anderson as charged. Anderson appealed. ANALYSIS Police Officers’ Testimony Anderson contends that reversal is required because the trial court allowed SergeantTaylor and Officer Kravchun to offer improperopinions on guiltthat infringed on his constitutional rightto an impartialjury. We disagree. Trial courts “must be accorded broad discretion to determine the admissibility of ultimate issue testimony.”13 ER 704 provides that “[t]estimony in ~d.at 188. 13 City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993).

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the form ofan opinion or inferences otherwise admissible is not objectionable because it embraces an ultimate issue to be decided bythe trier offact.” “[T]estimonythat is not a direct comment on the defendant’s guilt oron the veracity ofa witness, is otherwise helpful to thejury, and is based on inferences from the evidence is not improperopinion testimony.”14 However, “[nb witness, lay orexpert, maytestifyto his opinion as to the guilt ofthe defendant, whether by direct statement or inference.”15 “In addition, inferential testimonythat leaves no other conclusion butthat a defendant is guilty cannot be condoned, no matter how artfullyworded.”16 “Such testimony is unfairly prejudicial to the defendant because it invades the exclusive province ofthejury.”17 Generally, a police officertestifying as an expert is permitted to make reasonable inferences based on the evidence and the officer’s training and experience.18 “An opinion as to the guilt ofthe defendant is particularly prejudicial and improperwhere it is expressed by a government official, such as a sheriffor a police officer.”19 “The determination ofwhethertestimony constitutes an

14 State v. Cruz, 77 Wn.App. 811, 814, 894 P.2d 573 (1995) (quoting ki. at 578). 15 State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987).

16 Cruz, 77 Wn. App. at 814. 17 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). 18 State v. Them, 138 Wn.2d 133, 148, 977 P.2d 582 (1999). 19 State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992).

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impermissible opinion as to the defendant’s guilt depends on the particular circumstances ofeach case.”2° Police officertestimony regarding typical criminal activity is not necessarily impermissible. In State v. Cruz, where the defendant was charged with delivery of heroin, the trial court permitted a police officerto testify about “typical” heroin transactions.21 In closing, the prosecutorargued that Cruz’s actions fitthe detective’s description ofthe typical transaction.22 The appellate court held that the detective’s testimony did not constitute an impermissible opinion on guilt because it “did not amountto a directive telling thejurywhat result to reach on the issue of Cruz’s guilt or innocence.”23 Here, as in Cruz, the record does not supportAnderson’s assertion thatthe police officers’ testimony regarding drug users and drug transactions amounted to an impermissible opinion on guilt. Theytestified only in general terms based on theirtraining and experience. They did not opine, eitherdirectly or by inference, thatAnderson’s actions were consistentwith typical drug transactions with which theywere familiar. “The factthat an opinion encompassing ultimate factual issues supports the conclusion thatthe defendant is guilty does not make the testimony an improperopinion on guilt.”24

20 Cruz, 77 Wn. App. at 814-15. 2177 Wn.App. 811, 813-14, 894 P.2d 573 (1995). 22 Id. at 814. Id. at 815. 24 Heatley, 70 Wn. App. at 579.

8No. 78802-7-1/9

Anderson likens his case to State v. Farr-Lenzini, butthat case is distinguishable.25 The State charged Farr-Lenzini with attempting to elude a pursuing police vehicle.26 When the State asked the pursuing police officerto give his opinion “as to whatthe defendant’s driving pattern exhibited,” the officer responded thatthe driver“was attempting to get awayfrom me and knew I was backthere and refusing to stop.”27 Division Two ofthis court held thatthe officer’s testimony about Farr-Lenzini’s state of mind violated her right to ajurytrial because it constituted an opinion aboutthe intent element ofthe offenses.28 Here, in contrast, the police officers did not draw a conclusion forthejury regarding whetherthe facts ofAnderson’s case met an element ofthe charged offense. Anderson further asserts that bythe time Officer Kravchun testified, the court came to realize thatthe State’s case was impermissibly based on profiling testimony and responded by more tightly restricting the proper bounds ofthe police testimony. He contends thatthis response demonstrates the impropriety of SergeantTaylor’s testimony. The record does not supportthis assertion. The court consistently ruled thatthe State could elicit general educational testimony regarding drug use and drug sales, but notthatthe facts ofthis case were consistentwith those characteristics orwith an intentto deliver. In applying this

2593 Wn. App. 453, 970 P.2d 313 (1999). 26 Id. at458. 27 Id. 28 ~ at463-64.

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principle, the courtfrequently reserved ruling on individual issues pending testimony. This approach was proper. Closing Argument Anderson contends a newtrial is required because the State committed prosecutorial misconduct during closing argument. “The propriety ofa prosecutor’s conduct is ‘reviewed in the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.”29 “In closing argument, a prosecutor is afforded wide latitude to draw and express reasonable inferences from the evidence.”30 To prevail on a claim of prosecutorial misconduct, the defendant bears the burden ofestablishing thatthe conductwas both improperand prejudicial.31 To establish prejudice, the defendant must show “a substantial likelihood thatthe misconduct affected thejuryverdict.”32 “Any allegedly improperstatements should be viewed within the context ofthe prosecutor’s entire argument, the issues in the case, the evidence discussed in the argument, and thejury instructions.”33

29 State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203 (2012) (quoting State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994)).

30 Id. 31 State v. Thorgerson, 172 Wn.2d 438, 460, 258 P.3d 43 (2011). 32 State v. Hecht, 179 Wn. App. 497, 319 P.3d 836 (2014).

~ State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003).

10No. 78802-7-I/il

In his closing argument, defense counsel sought to cast doubt on Officer Kravchun’s and SergeantTaylor’s memory ofevents. In rebuttal closing argument, the prosecutorstated: PROSECUTOR: So considerthis. There are two versions you’ve

heard. Any ofthem make sense ofall ofthis evidence? So think aboutwhatthe defendant is saying. Think aboutwhat the officers are saying. Who has the personal interest in this case? Who has the stakes? DEFENSE: Your Honor, I’m going to object. It’s reversing the

burden of proof. Suggesting the defendant has— COURT: It’s argument.

. . . [T}hey have the instructions in

terms of howthey’re to applythe testimony of witnesses. PROSECUTOR: Itsays you are to consider any personal interest,

any bias or prejudice, considerwho has the stakes when you considerthe credibility. The defendant would have you believe thatthese officers who don’t know him, who’sjust doing theirjob assigned to this anticrime team, assigned to this 36 to 3700 block ofSmith Avenue, made this whole thing up, puttheir careers on the line, puttheir reputations on the line for him. DEFENSE: I’m going to object. That’s notthe argument that I

made. COURT: Overruled, counsel.[34] The State asserts the prosecutor’s remarks were not improper because jurors can reasonably inferthat an officerwould not risk consequences to his

~ RP (July 25, 2018) at 386-87.

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careerand reputation forfabricating a story and testifying to it during trial. This argument is troubling. A prosecutorcommits misconduct by personally vouching forthe credibility ofa witness.35 Impropervouching occurs when the prosecutor expresses a personal belief in a witness’s credibility or refers to evidence not presented attrial to support a witness’s testimony.36 It is improperfor prosecutors to bolster a police witness’s good character even ifthe record supports such argument.37 State v. Jones is instructive.38 There, the prosecutor argued that a confidential informantwho did nottestifywas credible because the police officers would not have risked their careers by using an unreliable informant: And how much sense does it make to you that.

. . any narcotics detective would put their own reputation on the line? Their own credibility? Theirown integrity oftheir investigation? Theirvery livelihood on the line for one silly person who is duping or snookering them somehow?139] The appellate court held thatthese statements improperly bolstered the officer’s credibility “by using facts not in evidence, namely, that police

. . . would suffer professional repercussions ifthey used an untrustworthy informant.”40

~ State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389 (2010). 36 Id.

~ State v. Jones, 144 Wn. App. 284, 293, 183 P.3d 307 (2008). 38 144 Wn. App. 284, 183 P.3d 307 (2008).

~ Id. at 293. 40 ki. at 293-94.

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Here, the prosecutorsimilarly urged thejuryto find thatthe testifying officers were credible because theywould notjeopardize their careers by giving false testimony. And defense counsel did not assert in closing thatthe officers gave false testimony; he merely questioned the accuracy oftheir recollections. The prosecutor’s arguments were problematic. But, where the defense fails to objectto an improper statement, the error is waived unless the statement is “soflagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to thejury.”41 The State contends Anderson failed to preserve the issue because he did not object on the basis thatthe argument presented facts outside the record orthat it bolstered the police officers’ credibility. Anderson asserts that he sufficiently preserved the issue by objecting on the basis thatthe State reversed the burden of proofand mischaracterized his closing argument. Even assuming thatAnderson’s objections were sufficientto preserve the error, we conclude that reversal is not required because Anderson has not demonstrated a substantial likelihood of prejudice. Atthe time ofarrest, Anderson was carrying a small box containing 14 identically-packaged bags of methamphetamine in the pants he was wearing. The pants fit him and matched the sweatshirt he was wearing. Anderson’s phone also contained multiple threads oftext messages showing conversations about drug dealing. Ample physical

41 Statev. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).

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evidence corroborated the police officers’ testimony. There is no reasonable probabilitythatthe prosecutor’s improper argument materially affected the outcome ofthe trial. Cumulative Error Anderson asserts thatthe cumulative effect ofthe improperopinion testimony and the prosecutorial misconduct entitle him to a newtrial. The cumulative error doctrine “applies when a combination oftrial errors denies the accused a fairtrial, even when any one ofthe errors taken individuallywould be harmless.”42 Anderson was affected by only one error, and he failed to demonstrate prejudice. He is therefore not entitled to a newtrial. Affirmed. 

# Jr’ WE CONCUR:

# /

42 State v. Salas, I Wn. App. 2d 931, 952, 408 P.3d 383 (2018).

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