IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

STATE OF WASHINGTON, ) No. 78802-7-I

Respondent, )

)

v.

) UNPUBLISHED OPINION

ROBERT ANDERSON, )

) FILED: March 9, 2020

Appellant.

VERELLEN, J. — Robert Anderson appeals his convictions for possession of

methamphetamine with intent to deliver and bail jumping. He asserts that reversal

is required because the trial court admitted improper police opinion testimony and

because the prosecutor vouched for the officers’ credibility during closing

arguments. We conclude that the officers’ testimony did not invade the province of

the jury. Even if the prosecutor improperly vouched for the credibility of the police

witnesses, there is no reasonable probability that the error affected the outcome of

the trial. Anderson also fails to establish he is entitled to a new trial based on

cumulative error. Therefore, we affirm.

FACTS

On the evening of January21, 2016, Sergeant Jay Taylor and Sergeant Jeff

Hendrickson of the Everett Police Department contacted Robert Anderson on
No. 78802-7-1/2

Smith Avenue in Everett, near the 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 of Anderson’s pants. Inside the

soap box, officers discovered several loose cigarettes and 14 small plastic bags

containing a crystalline substance that was later identified as methamphetamine.

The officers also recovered a cell phone from Anderson’s jacket 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. Sergeant Taylor testified that when they arrived at the jail, 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 of a controlled substance (methamphetamine) with intent to

manufacture or deliver. After Anderson failed to appear for 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 their training and experience regarding the

1 Reference to the search warrant was suppressed at trial.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 10 Ohio Misc. 9 (1966).

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No. 78802-7-113

characteristics and behaviors of typical drug dealers and drug users. The defense

sought to restrict officers from opining that Anderson 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 other signs of being a non-user, or that the

amount of methamphetamine seized in the baggies found on Anderson was

consistent with amounts used by people on the streets in the area. The court

ruled that the police officers could indicate whether they believed Anderson was

under the influence, but it disallowed “general testimony as to whether someone

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 of the State’s

case needs to be on the defendant’s conduct and the evidence that they obtained

• . . and not too much generalizing because that can certainly be objectionable.”4

At trial, the State asked Officer Taylor about his “training [and] experience

as far as recognizing indicators that would indicate a drug user.”5 Defense

counsel objected that such testimony was barred by the court’s pretrial rulings, but

the court disagreed and allowed Officer Taylor to answer. The State then elicited

the following testimony:

Q: What are some of the indicators that you’ve been trained and

in your career, over the course of your career, that would

indicate a drug user?

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

~ Id. at 20.

51d.at 113.

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No. 78802-7-1/4

A: A drug user in—so common to the drug users that I have run

into during my employment at Everett, they will have typically

some kind of drug paraphernalia on them for the 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

dollar amount 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 user versus a drug dealer?

A: Yes.

Q: O.K. And what is that training [and] experience?

A: . . . . So it’s kind of the training part of it, and then seeing in

real life the difference, you typically are going to see a larger

quantity of a substance. It’s going to be packaged differently

as opposed to a user. If they buy a package, it will be one

package; whereas a dealer typically wiII—~61

Defense counsel again objected on the ground that Officer Taylor’s testimony was

“going towards the issue that the jury has to find.”7 The court sustained the

o bjection/

The State then asked Officer Taylor, ‘And in the course of your 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.

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No. 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 far down this road, counsel.”9

The State next asked Officer Taylor, “What are some of the signs that you

would look for?,” and Officer Taylor responded, “Quantity, method of packaging,

amount of money, measuring equipment, communication equipment for setting up

deals.”1°

The State later asked Sergeant Taylor how often individuals use their true

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 respect to amount and packaging and that sort of

thing, and I do think that’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 that that means it’s a drug

dealer as opposed to a drug user, that sort of thing, I’m not

convinced that that’s relevant testimony.[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 testimony was unnecessary because the jury could

evaluate the factual evidence in the case based on its ordinary experience and

knowledge. The court ruled that Officer Kravchun could educate the jury regarding

9Id.at 116.

~° Id.

ki. at 145.

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No. 78802-7-1/6

“what is typically involved in a drug transaction”12 but cautioned that the officer

could not be asked to opine whether the facts of this case fit that profile. Officer

Kravchun then testified regarding how drugs are typically packaged in a drug

transaction, the range of amounts sold, how methamphetamine is typically

ingested, and how drug transactions are set up.

Anderson testified at trial. He denied telling Officer Taylor that he was

selling drugs to make money. Rather, he said that he was living at the Everett

men’s shelter and trying to earn money working as an unloader at Atlas Van Lines

while he renewed his truck driver’s license. He testified that the pants he was

wearing on the evening he was arrested were borrowed from another man at the

shelter. As for the text messages showing drug dealing conversations on his

phone, he explained that he often allowed other people to borrow it.

The jury convicted Anderson as charged. Anderson appealed.

ANALYSIS

Police Officers’ Testimony

Anderson contends that reversal is required because the trial court allowed

Sergeant Taylor and Officer Kravchun to offer improper opinions on guilt that

infringed on his constitutional right to an impartial jury. 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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No. 78802-7-1/7

the form of an opinion or inferences otherwise admissible is not objectionable

because it embraces an ultimate issue to be decided by the trier of fact.”

“[T]estimony that is not a direct comment on the defendant’s guilt or on the

veracity of a witness, is otherwise helpful to the jury, and is based on inferences

from the evidence is not improper opinion testimony.”14 However, “[nb witness,

lay or expert, may testify to his opinion as to the guilt of the defendant, whether by

direct statement or inference.”15 “In addition, inferential testimony that leaves no

other conclusion but that a defendant is guilty cannot be condoned, no matter how

artfully worded.”16 “Such testimony is unfairly prejudicial to the defendant because

it invades the exclusive province of the jury.”17

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.18 “An opinion as to the guilt of the defendant is particularly prejudicial

and improper where it is expressed by a government official, such as a sheriff or a

police officer.”19 “The determination of whether testimony 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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No. 78802-7-1/8

impermissible opinion as to the defendant’s guilt depends on the particular

circumstances of each case.”2°

Police officer testimony 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 officer to testify about “typical” heroin

transactions.21 In closing, the prosecutor argued that Cruz’s actions fit the

detective’s description of the typical transaction.22 The appellate court held that

the detective’s testimony did not constitute an impermissible opinion on guilt

because it “did not amount to a directive telling the jury what result to reach on the

issue of Cruz’s guilt or innocence.”23

Here, as in Cruz, the record does not support Anderson’s assertion that the

police officers’ testimony regarding drug users and drug transactions amounted to

an impermissible opinion on guilt. They testified only in general terms based on

their training and experience. They did not opine, either directly or by inference,

that Anderson’s actions were consistent with typical drug transactions with which

they were familiar. “The fact that an opinion encompassing ultimate factual issues

supports the conclusion that the defendant is guilty does not make the testimony

an improper opinion 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.

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No. 78802-7-1/9

Anderson likens his case to State v. Farr-Lenzini, but that 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 officer to give

his opinion “as to what the defendant’s driving pattern exhibited,” the officer

responded that the driver “was attempting to get away from me and knew I was

back there and refusing to stop.”27 Division Two of this court held that the officer’s

testimony about Farr-Lenzini’s state of mind violated her right to a jury trial

because it constituted an opinion about the intent element of the offenses.28 Here,

in contrast, the police officers did not draw a conclusion for the jury regarding

whether the facts of Anderson’s case met an element of the charged offense.

Anderson further asserts that by the time Officer Kravchun testified, the

court came to realize that the State’s case was impermissibly based on profiling

testimony and responded by more tightly restricting the proper bounds of the

police testimony. He contends that this response demonstrates the impropriety of

Sergeant Taylor’s testimony. The record does not support this assertion. The

court consistently ruled that the State could elicit general educational testimony

regarding drug use and drug sales, but not that the facts of this case were

consistent with those characteristics or with an intent to deliver. In applying this

2593 Wn. App. 453, 970 P.2d 313 (1999).

26 Id. at 458.

27 Id.

28 ~ at 463-64.

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No. 78802-7-1/10

principle, the court frequently reserved ruling on individual issues pending

testimony. This approach was proper.

Closing Argument

Anderson contends a new trial is required because the State committed

prosecutorial misconduct during closing argument. “The propriety of a

prosecutor’s conduct is ‘reviewed in the context of the 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 of establishing that the conduct was

both improper and prejudicial.31 To establish prejudice, the defendant must show

“a substantial likelihood that the misconduct affected the jury verdict.”32 “Any

allegedly improper statements should be viewed within the context of the

prosecutor’s entire argument, the issues in the case, the evidence discussed in the

argument, and the jury 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).

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No. 78802-7-I/il

In his closing argument, defense counsel sought to cast doubt on Officer

Kravchun’s and Sergeant Taylor’s memory of events. In rebuttal closing

argument, the prosecutor stated:

PROSECUTOR: So consider this. There are two versions you’ve

heard. Any of them make sense of all of this

evidence? So think about what the defendant is

saying. Think about what 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 how they’re to apply the testimony of

witnesses.

PROSECUTOR: It says you are to consider any personal interest,

any bias or prejudice, consider who has the stakes

when you consider the credibility. The defendant

would have you believe that these officers who

don’t know him, who’s just doing their job assigned

to this anticrime team, assigned to this 36 to 3700

block of Smith Avenue, made this whole thing up,

put their careers on the line, put their reputations

on the line for him.

DEFENSE: I’m going to object. That’s not the argument that I

made.

COURT: Overruled, counsel.[34]

The State asserts the prosecutor’s remarks were not improper because

jurors can reasonably infer that an officer would not risk consequences to his

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

ii
No. 78802-7-1/12

career and reputation for fabricating a story and testifying to it during trial. This

argument is troubling.

A prosecutor commits misconduct by personally vouching for the credibility

of a witness.35 Improper vouching occurs when the prosecutor expresses a

personal belief in a witness’s credibility or refers to evidence not presented at trial

to support a witness’s testimony.36 It is improper for prosecutors to bolster a police

witness’s good character even if the record supports such argument.37

State v. Jones is instructive.38 There, the prosecutor argued that a

confidential informant who did not testify was 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? Their own integrity of their investigation? Their very

livelihood on the line for one silly person who is duping or snookering

them somehow?139]

The appellate court held that these statements improperly bolstered the officer’s

credibility “by using facts not in evidence, namely, that police . . . would suffer

professional repercussions if they 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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No. 78802-7-1/13

Here, the prosecutor similarly urged the jury to find that the testifying

officers were credible because they would not jeopardize their careers by giving

false testimony. And defense counsel did not assert in closing that the officers

gave false testimony; he merely questioned the accuracy of their recollections.

The prosecutor’s arguments were problematic.

But, where the defense fails to object to an improper statement, the error is

waived unless the statement is “so flagrant and ill-intentioned that it causes an

enduring and resulting prejudice that could not have been neutralized by a curative

instruction to the jury.”41 The State contends Anderson failed to preserve the issue

because he did not object on the basis that the argument presented facts outside

the record or that it bolstered the police officers’ credibility. Anderson asserts that

he sufficiently preserved the issue by objecting on the basis that the State

reversed the burden of proof and mischaracterized his closing argument.

Even assuming that Anderson’s objections were sufficient to preserve the

error, we conclude that reversal is not required because Anderson has not

demonstrated a substantial likelihood of prejudice. At the time of arrest, 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

of text 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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No. 78802-7-1/14

evidence corroborated the police officers’ testimony. There is no reasonable

probability that the prosecutor’s improper argument materially affected the

outcome of the trial.

Cumulative Error

Anderson asserts that the cumulative effect of the improper opinion

testimony and the prosecutorial misconduct entitle him to a new trial. The

cumulative error doctrine “applies when a combination of trial errors denies the

accused a fair trial, even when any one of the errors taken individually would be

harmless.”42 Anderson was affected by only one error, and he failed to

demonstrate prejudice. He is therefore not entitled to a new trial.

Affirmed.

Jr’

WE CONCUR:

/

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

14