     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
                                                                                c_

STATE OF WASHINGTON,
                                                No. 74164-1-1                   ~
                    Respondent,
      v.                                       DIVISION ONE                     ir:


RONUALDO PINTINIO CASTILLO,                    UNPUBLISHED OPINION              ^~

                    Appellant.                 FILED: January 19, 2016


       Leach, J. — Ronualdo Pintinio Castillo appeals his convictions for assault

in the second degree and attempting to elude a pursuing police vehicle.         He

challenges the sufficiency of the evidence to convict him of assault in the second

degree. Also, he claims the trial court abused its discretion by allowing the State

to ask a leading question on direct examination.     Further, he contends that a

witness gave impermissible opinion testimony about guilt. Finally, he asserts that

no reasonable juror could have rejected his necessity defense to attempting to

elude a police vehicle.   Because sufficient evidence supports each element of

assault in the second degree, the leading question was harmless, the witness did

not give an impermissible opinion about Castillo's guilt, and a reasonable fact

finder could find that Castillo failed to prove his necessity defense by a

preponderance of the evidence, we affirm.
No. 74164-1-1/2




                                     Background

       On February 8, 2014, Thurston County Deputy Sherriff Michael Brooks

stopped a car that he saw traveling the wrong way down a one-way street in

downtown Olympia, Washington.          Deputy Brooks stopped the car in a local

business parking lot. Washington State Patrol Trooper Guy Rosser also saw this

car and went to assist Deputy Brooks.          After talking with the driver, Deputy

Brooks and Trooper Rosser discussed how to proceed with the traffic stop.

Deputy Brooks sat in the driver's seat of his car, and Trooper Rosser stood next

to the patrol car, talking to Deputy Brooks through the driver's side window.

       At that point, Ronualdo Castillo's car nearly struck Deputy Brooks's patrol

car. The officers thought either that Castillo needed help or that the driver of the

stopped car had called Castillo for help.        The officers decided that Trooper

Rosser should talk to Castillo while Deputy Brooks continued to process the

driver's information from the first vehicle.


       Trooper Rosser walked toward Castillo's car while it was slowly rolling

through the parking lot.       He and Castillo made eye contact, and Castillo

accelerated his vehicle at Trooper Rosser. To avoid getting hit, Trooper Rosser

stepped back and to the right. Trooper Rosser was holding a flashlight. As the

car accelerated past him, his hand and flashlight hit Castillo's driver's side

window.    Deputy Brooks was still in his vehicle but testified that he heard

something hit a window.
No. 74164-1-1/3




       Castillo drove from the parking lot onto the street, traveling the wrong way.

Deputy Brooks activated his traffic lights and siren and pursued Castillo. Deputy

Brooks was in full uniform and driving a fully marked patrol vehicle. Castillo led

Deputy Brooks, along with other officers, out of Olympia and into rural Thurston

County. The pursuit reached speeds as high as 90 miles per hour. When the

paved roadway ended, Castillo pulled onto a gravel road and into a driveway.

Officers arrested him there.


       Deputy Brooks testified that Castillo bragged about being a good driver

and asked him, "I'm a good driver though, right?" When Trooper Rosser asked

Castillo why he tried to run him over, Castillo replied, "Sorry." Thurston County

Sergeant Dave Odegaard also asked Castillo why he tried to run over Trooper

Rosser. Castillo laughed and said, "Because I can." The State charged Castillo

with assault in the second degree and attempting to elude a pursuing police

vehicle.


       At trial, defense counsel objected1 when the State asked Trooper Rosser,

"And do you fear that you could have been severely injured or possibly killed by

being struck by a vehicle of that size?" The trial court overruled the objection and

allowed the prosecutor to repeat the question.2 Trooper Rosser answered, "Yes,




       1 Defense counsel said, "Objection as to the form of the question.
Leading."
      2 After the trial court overruled Castillo's objection, the prosecutor asked
Trooper Rosser, "Did you feel that you could have been severely injured or could
have been killed by a vehicle of that size traveling at you had it struck you?"
No. 74164-1-1/4




I do. I've seen several people that have been hit by cars and cars always win

against people."

       Castillo testified that he believed that the sound of Trooper Rosser's

flashlight hitting his window was a gunshot and that he feared that the police

were trying to kill him. Sergeant Odegaard testified that when he asked Castillo

why he ran from police, Castillo laughed and told him that that is how he drives

and "other cops wouldn't chase him." The trial court instructed the jury on the

affirmative defense of necessity to attempting to elude a pursuing police vehicle.

The jury found Castillo guilty of assault in the second degree and attempting to

elude a pursuing police vehicle. Castillo appeals.

                                      Analysis

       Castillo raises four issues.   He first contends that insufficient evidence


supports the assault in the second degree. He next challenges a trial court ruling

about a question he objected to as leading. Castillo also asserts that Trooper

Rosser gave impermissible opinion testimony about his guilt. Finally, he claims

that no rational jury could have rejected his necessity defense.

       In reviewing a challenge to the sufficiency of the evidence, we view all

facts and reasonable inferences in the light most favorable to the State to

determine if any rational trier of fact could find the elements of the crime beyond

a reasonable doubt.3 When a defendant asserts an affirmative defense, but the

trier of fact rejects that defense, we look to determine if, considering the evidence


       3 State v. Lord, 117 Wn.2d 829, 881, 822 P.2d 177(1991).
No. 74164-1-1/5




in the light most favorable to the State, a rational trier of fact could have found

that the defendant failed to prove the defense using the applicable burden of

proof.4      The State may prove a crime's elements with either direct or

circumstantial evidence, one being no more or less valuable than the other.5 A

challenge to the sufficiency of the evidence admits the truth of the State's

evidence.6        This   deferential   standard   leaves   questions   of   credibility,

persuasiveness, and conflicting testimony to the jury.7 "The trier of fact makes

determinations of credibility, and we will not review those determinations on

appeal."8 We review trial court evidentiary rulings for abuse of discretion.9

Assault in the Second Degree

          Castillo asserts that the record contains insufficient evidence to permit a

jury to find that he committed each element of assault in the second degree

beyond a reasonable doubt.

          The State had to prove that Castillo assaulted Trooper Rosser with a

deadly weapon.10 An assault can be committed three ways. An assault is an

intentional touching or striking of another person that is harmful or offensive




          4 State v. Matthews, 132 Wn. App. 936, 940-41, 135 P.3d 495 (2006).
          5 State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
          6 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
          7 In Re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277
(2011) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992)).
          8 State v. Embrv. 171 Wn. App. 714, 742, 287 P.3d 648 (2012) (citing
State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004)).
       9 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
       10RCW9A.36.021(1)(c); RCW 9A.04.110(6).
No. 74164-1-1/6




regardless of whether that person suffered any physical injury.11 A touching or

striking is offensive if the touching or striking would offend an ordinary person

who is not unduly sensitive.12 An assault is also an act done with intent to inflict

bodily injury upon another, tending but failing to accomplish it but accompanied

with the apparent present ability to inflict bodily injury if not prevented.13 Actual

bodily injury need not be inflicted.14 An assault is also an act done with intent to

create in another apprehension and fear of bodily injury and which in fact creates

in another a reasonable apprehension and imminent fear of bodily injury, even

though the actor did not actually intend to inflict bodily injury.15

       Viewing all facts and reasonable inferences in the light most favorable to

the State, sufficient evidence supports a finding that Castillo's vehicle offensively

touched Trooper Rosser when it hit his hand. Castillo contends that his vehicle

did not contact Trooper Rosser. However, Trooper Rosser testified that he had

to move and, "as [Castillo's vehicle] accelerated right past me, that's when I

pushed even further off of it hitting it with my right hand to get away from it."

       Sufficient evidence also supports a finding that Trooper Rosser had a

reasonable apprehension and imminent fear of bodily injury when Castillo

accelerated his car at him. Trooper Rosser testified that he made eye contact

with Castillo twice, they maintained eye contact, and then Castillo accelerated his

       11 11 Washington Practice: Washington Pattern Jury Instructions:
Criminal 35.50, at 547 (3d ed. 2008) (WPIC).
       12 WPIC   35.50.
       13 WPIC   35.50.
       14 WPIC   35.50.
       15 WPIC   35.50.
No. 74164-1-1/7




vehicle at him. Trooper Rosser said that if he had not moved out of the way, the

car would have hit him, he feared injury if hit, he's seen several people that have

been hit by cars, and "cars always win against people."

      Viewing the record in the light most favorable to the State, the record

contains sufficient evidence about Castillo's car making contact with Trooper

Rosser and Trooper Rosser's reasonable apprehension and imminent fear of

bodily injury. Thus, sufficient evidence supports the jury's verdict that Castillo

committed assault in the second degree.

Leading Question

       Castillo asserts that the trial court abused its discretion when it allowed the

State to ask Trooper Rosser a leading question on direct examination.16

       A leading question suggests the desired answer.17          Leading questions

should not be used in direct examination "'except as may be necessary to

develop the witness' testimony.'"18 "The trial court has broad discretion to permit

leading questions and will not be reversed absent abuse of that discretion."19

Allowing leading questions is not usually reversible error.20         However, "'the

persistent pursuit of such a course of action is a factor to be added in the

        16 The State asked Trooper Rosser, "And do you fear that you could have
been severely injured or possibly killed by being struck by a vehicle of that size?"
Trooper Rosser answered, "Yes, I do. I've seen several people that have been
hit by cars and cars always win against people."
       17 Stevens v. Gordon, 118 Wn. App. 43, 55, 74 P.3d 653 (2003) (citing
State v. Scott, 20 Wn.2d 696, 698, 149 P.2d 152 (1944)).
       18 Stevens. 118 Wn. App. at 55 (quoting ER 611 (c)).
       19 Stevens, 118 Wn. App. at 55-56 (citing State v. Delarosa-Flores, 59 Wn.
App. 514, 517, 799 P.2d 736 (1990)).
      20 Stevens, 118 Wn. App. at 56.
No. 74164-1-1/8




balance.'"21 Even though the question may call for a yes or a no answer, it is not

leading unless it is worded so that by permitting the witness to answer yes or no,

the witness would be testifying in the language of the interrogator rather than in

the witness's own words.22

      Although the State contends that the question did not suggest the desired

answer, the question called for a yes or no answer and asked Trooper Rosser to

adopt the language of the prosecutor asking the question.

       But Castillo does not show that allowing this leading question prejudiced

him. Trooper Rosser explained his answer, and the explanation did not adopt

the prosecutor's language. Considering the record, the form of the question did

not materially affect the outcome of trial. In response to other questions on direct

examination, Trooper Rosser said that Castillo accelerated his car at him and he

got out of the way while pushing off of the car.      He also stated his view that

Castillo intentionally drove at him, and had he not moved to avoid Castillo's car, it

would have hit him. A jury could also reasonably infer that a vehicle accelerating

into a person would cause bodily injury.

       The trial court abused its discretion when it overruled Castillo's leading

question objection because the challenged question asked Trooper Rosser to

adopt the prosecutor's language. But the error was harmless because Trooper

Rosser explained his answer, overwhelming evidence supports each element of


       21 Stevens, 118 Wn. App. at 56 (quoting State v. Torres, 16 Wn. App. 254,
258, 554 P.2d 1069 (1976)).
       22 Scott, 20 Wn.2d at 699.


                                           -8
No. 74164-1-1/9




assault in the second degree, and the record does not show that the prosecutor

persisted with improper leading questions.

Opinion Testimony

       For the first time on appeal, Castillo contends that Trooper Rosser's

testimony violated Castillo's constitutional right to a jury trial because it included

an opinion about his guilt. Appellate courts generally will not consider issues

raised for the first time on appeal.23 However, RAP 2.5(a)(3) allows a party to

raise for the first time on appeal a manifest error affecting a constitutional right.24

"Manifest" requires a showing of actual prejudice.25 The party raising the issue

must make a plausible showing that the asserted error had practical and

identifiable consequences in the trial of the case.26

       Lay witnesses may give opinions or inferences based upon rational

perceptions that help the jury understand the witness's testimony and that are not

based upon scientific or specialized knowledge.27             Impermissible opinion

testimony about the defendant's guilt may be reversible error because this

evidence violates the defendant's constitutional right to a jury trial, which includes

a right to an independent determination of the facts by the jury.28 "Opinions on


       23 State v. Kirkman, 159 Wn.2d 918, 926, 934, 155 P.3d 125 (2007) (citing
State v.WWJ Corp.. 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)).
       24 Kirkman, 159 Wn.2d at 926.
      25 Kirkman. 159 Wn.2d at 935 (citing State v. Walsh. 143 Wn.2d 1,8, 17
P.3d 591 (2001)); RAP 2.5(a)(3).
       26 Kirkman, 159 Wn.2d at 935.
     27 State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008) (citing
ER701).
       28 Kirkman. 159 Wn.2d at 927.
No. 74164-1-1/10




guilt are improper whether made directly or by inference."29 To determine the

admissibility of opinion testimony, the court looks to the type of witness testifying,

the specific nature of the testimony, the nature of the charges, the type of

defense, and the other evidence before the trier of fact.30 However, some areas

are clearly inappropriate for opinion testimony, such as personal beliefs about the

defendant's guilt, the intent of the accused, or the veracity of witnesses.31

       In cases where Washington courts have held opinion testimony

inadmissible, the opinion evidence included explicit testimony about the

defendant's guilt and not the witness's factual observations.32

           In State v. Quaale,33 a DUI (driving under the influence) case, our

Supreme Court held inadmissible a trooper's opinion about impairment, based

solely on the horizontal gaze nystagmus test and not his own observations of the

defendant.




     29 State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213 (2014) (citing
Montgomery. 163 Wn.2d at 594).
           30 Quaale. 182 Wn.2d at 199-200 (citing Montgomery. 163 Wn.2d at 591).
           31 Quaale. 182 Wn.2d at 200 (citing Montgomery. 163 Wn.2d at 591).
           32 Quaale. 182 Wn.2d at 198-99; Montgomery. 163 Wn.2d at 595 (holding
that officer testimony was improper because it contained explicit opinion on
intent).
           33 182 Wn.2d 191, 201-02, 340 P.3d 213 (2014) (reasoning that the
trooper's opinion testimony was improper because it was not supported by his
own factual testimony).


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No. 74164-1-1/11




       Washington courts have upheld the admission of opinion testimony when

the witnesses had strong factual bases supporting their opinions and those

opinions did not include an explicit statement on an ultimate issue of fact.34

       In City of Seattle v. Heatlev,35 this court held admissible an officer's

testimony that embraced an ultimate issue but did not contain an explicit

statement about the defendant's guilt.         In that case, the officer testified that

Heatley was "obviously intoxicated and affected by the alcoholic drink [such]

that... he could not drive a motor vehicle in a safe manner."36             The court

reasoned that the officer's opinion was "based solely on his experience and his

observation of Heatley's physical appearance and performance on the field

sobriety tests."37 The officer testified that Heatley performed a series of field

sobriety tests, his eyes were bloodshot and watery, his face was flushed, his

balance was unsteady, and he had a strong odor of alcohol on his breath.38 The

officer said that he based his conclusion on Heatley's physical appearance, his

own observations, and the field sobriety tests that Heatley performed.39

       The court in Heatlev noted that an opinion that encompasses ultimate

factual issues supporting the conclusion that the defendant is guilty does not




       34 Kirkman, 159 Wn.2d at 938; City of Seattle v. Heatlev. 70 Wn. App. 573,
579, 854 P.2d 658 (1993); State v. Lewellyn, 78 Wn. App. 788, 795, 895 P.2d
418(1995).
      35 70 Wn. App. 573, 579-80, 854 P.2d 658 (1993).
      36 Heatlev, 70 Wn. App. at 576.
      37 Heatlev. 70 Wn. App. at 579.
      38 Heatlev. 70 Wn. App. at 576.
      39 Heatlev. 70 Wn. App. at 576.


                                         -11
No. 74164-1-1/12




necessarily make that testimony an improper opinion on guilt.40 The court also

stated that it "'is the very fact that such opinions imply that the defendant is guilty

which makes the evidence relevant and material.'"41

       Similar to the officer in Heatlev. Trooper Rosser testified about his own

perceptions that he based on his observations of Castillo's behavior. Trooper

Rosser testified that he was approximately 10 to 15 feet from Castillo's car,

Castillo maintained eye contact with him, and Castillo accelerated.           Trooper

Rosser testified that he thought Castillo was intentionally driving at him because

they made eye contact more than once and they were looking at each other

when Castillo accelerated the car at him. Trooper Rosser said he moved to

avoid being hit by Castillo's car, and the car accelerated right past him. Trooper

Rosser also testified that had he not moved out of the way, he was sure that the

car would have hit him.


       The State's question to Trooper Rosser copied language from one of the

elements of a charged crime.42 However, Trooper Rosser based his testimony

on his perception. It helped to provide the jury with a clear understanding of his

testimony or the determination of a fact in issue and was not based on scientific,




       40 Heatlev. 70 Wn. App. at 579.
       41 Heatlev. 70 Wn. App. at 579 (quoting State v. Wilber. 55 Wn. App. 294,
298n.1,777P.2d36(1989)).
      42 Jury instruction 9 states, "An assault is . . . an act done with the intent to
create in another apprehension and fear of bodily injury, and which in fact
creates in another a reasonable apprehension and imminent fear of bodily injury
even though the actor did not actually intend to inflict bodily injury."

                                          -12
No. 74164-1-1/13




technical, or other specialized knowledge.43 The trial court also instructed the

jury that it was the sole trier of fact and the sole decider of witness credibility.

       Trooper Rosser's testimony did not include an explicit opinion on Castillo's

credibility or guilt. The record also indicates that Castillo did not object to this

testimony at trial. Castillo has not made a plausible showing that the asserted

error had practical and identifiable consequences at trial.         Thus, no manifest

constitutional error occurred.


Necessity Defense

       Castillo next contends that no rational trier of fact could have found that he

failed to prove his necessity defense by a preponderance of the evidence.

       "The necessity defense is available to a defendant 'when the physical

forces of nature or the pressure of circumstances cause the accused to take

unlawful action to avoid a harm which social policy deems greater than the harm

resulting from a violation of the law.'"44 A defendant may not assert the defense

if he brought about the compelling circumstances or had an available legal

alternative.45 The defendant must prove by a preponderance of the evidence

that he reasonably believed the commission of the crime was necessary to avoid

or minimize a harm, the harm sought to be avoided was greater than the harm

resulting from a violation of the law, and no legal alternative existed.46


       43ER701.
       44 State v. Gallegos, 73 Wn. App. 644, 650, 871 P.2d 621 (1994) (quoting
State v. Diana, 24 Wn. App. 908, 913, 604 P.2d 1312 (1979)).
       45 Gallegos, 73 Wn. App. at 650 (quoting Diana. 24 Wn. App. at 913-14).
       46 Gallegos, 73 Wn. App. at 651 (citing Diana. 24 Wn. App. at 916).

                                           -13
No. 74164-1-1/14




       Castillo contends that no rational jury could reject his necessity defense

because the record showed that he reasonably believed that eluding police was

necessary to avoid or minimize the harm of "being shot by a police officer."

However, this argument requires that the jury believe Castillo.          Viewing the

record in the light most favorable to the State, Castillo's argument fails.

       In State v. Gallegos,47 this court held that the pressure under which the

defendant acted did not result from a physical force of nature and, therefore, as a

matter of law, a necessity defense was not available to him. The court reasoned

that, even if the necessity defense was available to him, Gallegos failed to

present sufficient evidence to persuade a jury because he relied on his

unreasonable subjective beliefs.48

       When Gallegos returned home from a bar and learned about people

harassing his friend at that bar, Gallegos, who had been drinking alcohol, got in

his car and drove toward the bar.49 Police observed Gallegos run six red lights

and cause two cars to brake abruptly to avoid a collision.50 The court noted that

simply waiting a few minutes and informing the pursuing officer about the

situation would have allowed the officer to take the necessary legal action to find

Gallegos's friend at the bar and protect her.51




       47 73 Wn. App. 644, 651, 871 P.2d 621 (1994).
       48   Gallegos,   73 Wn.   App.   at 651.
       49   Gallegos.   73 Wn.   App.   at 646.
       50   Gallegos.   73 Wn.   App.   at 646.
       51   Gallegos.   73 Wn.   App.   at 651.


                                                  -14
No. 74164-1-1/15




       Although Castillo testified that he thought that he was being shot at by

police, no evidence in the record corroborated this belief. Castillo testified that

he did not see Trooper Rosser reach for or point a weapon at him before the

pursuit.   There is no evidence in the record that Castillo's car sustained any

damage from a bullet.

       The trial court instructed the jury on the necessity defense, and the trier of

fact found Castillo's testimony unpersuasive. As the State correctly points out,

Castillo's defense relied on his own testimony, and the fact that the jury found his

testimony unpersuasive is not reversible error. "Credibility determinations are for

the trier of fact and cannot be reviewed on appeal."52

       Viewing the evidence in the light most favorable to the State, we conclude

that a rational trier of fact could have rejected Castillo's necessity defense.

                                     Conclusion


       Because the record includes sufficient evidence to support each element

of assault in the second degree, the answer to the challenged leading question

was harmless, no witness gave an impermissible opinion about Castillo's guilt,




       52 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).


                                         -15
No. 74164-1-1/16




and a reasonable fact finder could find that Castillo failed to prove his necessity

defense by a preponderance of the evidence, we affirm.




WE CONCUR:




   /Qy&'M4-A                                                          j




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