IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                   DIVISION ONE
                      Respondent,
                                                   No. 81395-1-I
               v.
                                                   UNPUBLISHED OPINION
 BRANDON LEE RYAN,

                      Appellant.

       DWYER, J. — Brandon Ryan was charged with unlawful possession of a

controlled substance with intent to deliver, with special enhancements alleged for

being armed and in a school zone at the time of this offense, and with unlawful

possession of a firearm in the first degree. A jury trial resulted in convictions on

both counts and both enhancements. On appeal, he avers that insufficient

evidence supported his conviction for possession with intent to deliver and the

firearm enhancement related to that conviction. He also asserts that the trial

court improperly allowed an expert witness to testify and that this witness

rendered a forbidden opinion on his guilt, denying him a fair trial. We affirm.

                                          I

       At about 7:00 a.m. on June 20, 2017, Pierce County Sheriff’s Deputies

Jason Bray and Seth Huber, riding in a marked patrol vehicle, entered a

supermarket parking lot in the South Hill neighborhood of Puyallup. Almost

immediately, the deputies saw Brandon Ryan leaning into a parked vehicle

through the vehicle’s passenger side window. Deputy Huber testified to seeing
No. 81395-1-I/2


an item pass between Ryan’s hands and the hands of the vehicle’s driver. Ryan

then appeared to notice the deputies and “turned around, removed his hands that

were inside the vehicle and turned and walked briskly away from” the patrol

vehicle. He approached another vehicle, a red Chevrolet Blazer, and entered

that vehicle through the passenger’s side door. The driver of the Blazer was later

identified as Ryan’s girlfriend, Kelsey Kittleson. Based on what they had

observed, the deputies made contact with Ryan and Kittleson. Ryan was soon

arrested on an outstanding warrant; Kittleson was removed from the vehicle but

not arrested.

       As Ryan was being removed from the Blazer, the detectives observed two

safes inside. One safe was located on the vehicle’s center console; the other

was located behind the front passenger seat. Kittleson informed the deputies

that one of the safes contained a firearm with an extended magazine and

methamphetamine, and that she would take responsibility for those items to

prevent Ryan from “get[ting] in trouble.”1

       Deputy Huber obtained a search warrant for the Blazer. Although he

could not recall at the time of trial, Huber testified that he believed both safes

were unlocked. The safe located behind the passenger seat contained a nine

millimeter handgun. The safe located on the front center console, meanwhile,

was found to contain just over 40 grams of methamphetamine, around 50 empty

“baggies,” a small digital gram scale, and a metal spoon. The deputies also




       1
       As Deputy Huber later testified, this information was not accurate; the
methamphetamine was in a separate safe from the firearm with the extended magazine.


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No. 81395-1-I/3


located an extended magazine for the handgun, as well as men’s clothing, and

speakers and a toy car belonging to Ryan.

       Ryan was charged with possession of a controlled substance with intent to

deliver. This charge was augmented by a special allegation that he was armed

with a firearm at the time of this offense, and by another special allegation that he

was within 1,000 feet of the perimeter of a school ground at the time of the

offense. He was also charged with unlawful possession of a firearm in the first

degree. After a jury trial, he was found guilty on both counts and sentenced to a

total of 120 months of confinement. He appeals.

                                           II

       Ryan first challenges the sufficiency of the evidence supporting his

conviction for possession of a controlled substance with intent to distribute. In

doing so, he points to circumstantial evidence that purports to show Kittleson, not

Ryan, had exclusive possession of the methamphetamine, and that he was not

involved in the formulation or execution of any plan to distribute the

methamphetamine. Ryan’s challenge relies on a construction of the evidence in

a light more favorable to himself than that which our standard of review allows.

Viewed in the proper light, the evidence against Ryan was sufficient to support

this conviction.

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

most favorable to the State, it permits any rational trier of fact to find the essential

elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d

192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth of the



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No. 81395-1-I/4


State’s evidence and all inferences that reasonably can be drawn therefrom.”

Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence may be

equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

We defer to the trier of fact on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn.

App. 410, 415-16, 824 P.2d 533 (1992).

       In order to prove the offense with which Ryan was charged, the State had

to prove that he (1) unlawfully possessed (2) a controlled substance with (3) the

intent to deliver it. RCW 69.50.401(1). As a general rule, “[m]ere possession of

a controlled substance, including quantities greater than needed for personal

use, is not sufficient to support an inference of intent to deliver.” State v.

O’Connor, 155 Wn. App. 282, 290, 229 P.3d 880 (2010). However, a finder of

fact may infer intent to deliver from possession of a significant amount of a

controlled substance plus at least one additional factor. O’Connor, 155 Wn. App.

at 290. Thus, Washington courts have upheld convictions for possession with

intent to deliver based on the possession of a large amount of drugs and some

quantum of additional evidence. See, e.g., State v. Hotchkiss, 1 Wn. App. 2d

275, 281-82, 404 P.3d 629 (2017) (8.1 grams of methamphetamine with $2,150

in cash was sufficient), review denied, 190 Wn.2d 1005 (2018); State v. Simpson,

22 Wn. App. 572, 575-76, 590 P.2d 1276 (1979) (quantity of drugs and nature of

packaging sufficient); State v. Harris, 14 Wn. App. 414, 418-19, 542 P.2d 122

(1975) (quantity of drugs and a scale sufficient).




                                               4
No. 81395-1-I/5


       Deputy Huber testified that, at the time his police vehicle pulled into the

parking lot, Ryan was leaning into a truck’s open window and appeared to be

passing an item to the driver. Ryan then “looked directly at [the police]” and

“then hastily began to walk . . . through the parking lot” before entering a

Chevrolet Blazer in which Kittleson was waiting. Upon detaining both individuals,

Deputy Huber noticed a safe “on the arm rest between the front passenger’s and

the driver’s seat” and another safe “directly behind the . . . front passenger’s

seat.” Kittleson informed Huber, at the time of Ryan’s arrest, that one of the

safes contained both methamphetamine and a firearm with an extended

magazine.

       Upon obtaining a search warrant, the police opened the safes. The safe

on the arm rest contained around 50 small plastic “baggies,” 40.2 grams of

methamphetamine, and a digital gram scale. The other safe contained a

handgun.

       At trial, the State called Pierce County Sheriff’s Department Detective

Jesse Hotz, an experienced narcotics officer. Detective Hotz testified that “[m]ost

of the dealers, street-level dealers, will use” the exact variety of scale found in

the safe for weighing quantities of narcotics. He also identified the “baggies” as

the sort “used for individually weighing out the product . . . so that way it’s just a

real quick transaction.” Finally, Detective Hotz stated that the quantity of

methamphetamine in the safe was more than most methamphetamine users

would consume in a few days, and that it was common practice for dealers to sell




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No. 81395-1-I/6


between 1 and 1.8 grams of the drug at the time. Detective Hotz estimated that

the quantity of methamphetamine in the safe was worth around $400.

       In addition, Kittleson, who was waiting for Ryan in the driver’s seat of the

Blazer at the time police first noticed him, stated that she had been trying to “get

rid of” the methamphetamine earlier in the day by selling it. She also told police

at the time of the arrest “that she would take responsibility for the items within the

safe” because “she did not want her boyfriend to get in trouble.” These

statements support the inference that Kittleson was present to assist Ryan in

“get[ting] rid of” the methamphetamine by transferring it to others, actions that

Kittleson understood to be illegal.

       Considering the totality of the evidence, and construing the evidence and

all reasonable inferences therefrom in the light most favorable to the State, a

rational trier of fact could reasonably conclude that Ryan unlawfully possessed

the methamphetamine and intended to deliver quantities of that drug to

customers.

       Ryan argues otherwise, noting that no cash was found on his person at

the time of his arrest, that he was not in possession of a physical customer log,

and that he was not shown to have had either a key or knowledge of a

combination to open the safe. He urges that these facts, and the inferences that

can be drawn from these facts, fatally undermine the case against him.

       Again, however, when the sufficiency of the evidence is challenged on

appeal, we construe the evidence and all reasonable inferences supported by

that evidence in the light most favorable to the State, not the defendant. Salinas,



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No. 81395-1-I/7


119 Wn.2d at 201. Thus, Ryan’s challenge is unavailing. Sufficient evidence

supported Ryan’s conviction for possession of a controlled substance with the

intent to deliver it.

                                         III

        Ryan next avers that insufficient evidence supported the firearm

enhancement to his conviction. This is so, he asserts, because there was no

nexus connecting the presence of the firearm in his vehicle to his possession of

the methamphetamine with intent to distribute. In doing so, he asks anew that

we construe the evidence in a light less than that which is most favorable to the

State. We decline his invitation to do so.

        Once more, the test for determining the sufficiency of the evidence is

whether, after viewing the evidence in the light most favorable to the State, any

rational trier of fact could have found guilt beyond a reasonable doubt. Salinas,

119 Wn.2d at 201. In a sufficiency of the evidence claim, the defendant admits

the truth of the evidence and the court views the evidence, and all reasonable

inferences drawn from that evidence, in the light most favorable to the State.

Salinas, 119 Wn.2d at 201. Credibility determinations are made by the trier of

fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794

P.2d 850 (1990).

        Pursuant to RCW 9.94A.533(3), a court must add additional time to a

sentence if the defendant is found to have been armed with a firearm while

committing the crime. State v. Houston-Sconiers, 188 Wn.2d 1, 16-17, 391 P.3d

409 (2017). “To establish that a defendant was armed for the purpose of a



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No. 81395-1-I/8


firearm enhancement, the State must prove (1) that a firearm was easily

accessible and readily available for offensive or defensive purposes during the

commission of the crime and (2) that a nexus exists among the defendant, the

weapon, and the crime.” State v. Sassen Van Elsloo, 191 Wn.2d 798, 826, 425

P.3d 807 (2018).

       “In every case, whether a defendant is armed is a fact specific decision.”

State v. Neff, 163 Wn.2d 453, 462, 181 P.3d 819 (2008). “The defendant does

not have to be armed at the moment of arrest to be armed for purposes of the

firearms enhancement.” State v. O’Neal, 159 Wn.2d 500, 504, 150 P.3d 1121

(2007). “[T]he State need not establish with mathematical precision the specific

time and place that a weapon was readily available and easily accessible, so

long as it was at the time of the crime.” O’Neal, 159 Wn.2d at 504-05. The facts

available to the jury here established the existence of a nexus between Ryan, the

offense with which he was charged, and the presence of a firearm.

       The underlying crime with which Ryan was charged was possession of a

controlled substance with intent to deliver. As the prosecutor noted in his closing

argument:

       He does not have to be in possession of the gun, or even the
       drugs, when the hand-to-hand transaction occurs. When he was in
       the car, that’s where our crime happens. That’s where the
       possession happens of both the drugs and the firearm.

       Viewing the evidence in the light most favorable to the State, Ryan had

already committed the crime of possession with intent to deliver before he left the

vehicle. That he was subsequently seen handing off an item to another

individual in the parking lot serves only as proof of his intent to deliver. At the


                                              8
No. 81395-1-I/9


moment the crime was complete—when Ryan was in the vehicle with the

methamphetamine and decided that he would leave his vehicle to further a

sale—the firearm was in an unlocked container on a seat directly behind the seat

in which Ryan was sitting. Between Ryan and the container was a distance of

less than 36 inches. Deputy Huber testified that this would have been readily

accessible to Ryan:

       [HUBER:] . . . An additional safe was found directly behind the front
       passenger’s seat.
       [COUNSEL:] Again, the same spot where the defendant was
       sitting?
       [HUBER:] Directly behind where the defendant was sitting.
       [COUNSEL:] Okay, were those items, if you recall, within—would
       have been within arm’s reach of the defendant?
       [HUBER:] Absolutely.
       [COUNSEL:] Can you estimate how many feet behind or inches,
       was the second safe in the back seat?
       [HUBER:] I would say 36 inches or less.

       Ryan, in arguing against the sufficiency of the evidence, avers that the

weapon was not accessible, because the safe was locked and he had no way of

opening it. He points to the lack of any keys on his person at the time of his

arrest and the appearance of pry marks on the safe to support the proposition

that it had to be forced open by the police. To accept this contention, however,

would require us to view the evidence in the light most favorable to him and not

to the State.

       Indeed, the State presented evidence contradicting Ryan’s assertion. As

Deputy Huber testified, any damage to the safe “could easily have been there

prior to” Ryan’s arrest, and that he had “broken into several and usually the




                                            9
No. 81395-1-I/10


damage is more extensive” than what was seen on the safe at issue. As he went

on to state:

       [COUNSEL:] This is, to the best of your knowledge as you stated
       earlier, this was an unlocked safe?
       [HUBER:] What I stated earlier, and still to this point, had I needed
       to breach this or had anybody who was helping us to breach this, I
       do believe in my opinion that there would be substantially more
       damage to the safe.
       [COUNSEL:] In conjunction with the locking mechanism missing,
       would it be your conclusion that this was most likely locked or
       unlocked?
       [HUBER:] Unlocked.

       A rational jury could reasonably conclude that Ryan did not go to conduct

a drug sale with a firearm in the vehicle but locked in a safe that he could not

access. That jury could instead conclude that the firearm was in an unlocked

safe, 36 inches away from Ryan, when he decided to leave his vehicle to

approach the people sitting in the other vehicle. We defer to the jury’s judgment

regarding the conflicting testimony. Walton, 64 Wn. App. at 415-16.

       The evidence adduced by the State supported the inference that at the

time of the crime’s completion, a firearm was sitting in an unlocked container

within Ryan’s arm’s reach. Thus, a rational trier of fact could reasonably find that

a nexus existed between Ryan, the firearm, and his possession of a controlled

substance with intent to distribute. Sufficient evidence supported the imposition

of a firearm enhancement to Ryan’s conviction.

                                         IV

       Ryan next assigns error to the trial court’s decision to allow Detective Hotz

to testify pursuant to ER 702. Initially, the trial court granted Ryan’s motion to

exclude Detective Hotz’s testimony. The court later reversed itself, stating:


                                              10
No. 81395-1-I/11


       On further reflection and looking at the rules, I think that I will allow
       Detective Hotz to testify. I would like it to be narrowed, if possible,
       in terms of sort of what his experience is and sort of what’s typical.

       On appeal, Ryan avers that this decision allowed the State to introduce

inadmissible criminal profile testimony that amounted to an opinion on Ryan’s

guilt. Ryan urges that Detective Hotz’s testimony was unnecessary because this

case did not involve any “arcane aspects of drug dealing . . . outside the common

knowledge of jurors.”

       ER 702 states:

               If scientific, technical, or other specialized knowledge will
       assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill,
       experience, training, or education, may testify thereto in the form of
       an opinion or otherwise.

       Whether expert testimony may be allowed pursuant to ER 702 depends

on two factors: (1) whether the testifying witness qualifies as an expert and (2)

whether the witness’s testimony would be helpful to the trier of fact. State v.

Janes, 121 Wn.2d 220, 235-36, 850 P.2d 495 (1993). “Practical experience is

sufficient to qualify a witness as an expert.” State v. Ortiz, 119 Wn.2d 294, 310,

831 P.2d 1060 (1992). We review a trial court’s decision to admit expert opinion

testimony pursuant to ER 702 for an abuse of discretion. State v. Green, 182

Wn. App. 133, 146, 328 P.3d 988 (2014).

       Detective Hotz testified to involvement in hundreds of narcotics cases

throughout his career and to having carried out over 40 controlled buys as an

undercover agent. Detective Hotz also testified to having attended and

completed specialized narcotics officer training. This experience and training



                                              11
No. 81395-1-I/12


was sufficient to qualify Detective Hotz as an expert regarding “the arcane world

of drug dealing and certain drug transactions.” State v. Avendano-Lopez, 79 Wn.

App. 706, 711, 904 P.2d 324 (1995). Further, testimony regarding the typical

characteristics of drug dealing transactions can be helpful to the trier of fact.

Avendano-Lopez, 79 Wn. App. at 711. It is unlikely that a trier of fact unfamiliar

with methamphetamine transactions would know how much of the drug a person

would carry for personal consumption (as opposed to the amount carried for

business purposes), or that methamphetamine dealers use safes or lock boxes

to hold their inventory, or the methods by which such dealers make hand-to-hand

transactions. In any event, the trial court did not abuse its discretion by

considering the proffered evidence to be potentially beneficial to the jury. Green,

182 Wn. App. at 146.

                                           V

       Finally, Ryan avers that Detective Hotz was improperly allowed to render

an opinion as to his guilt when Detective Hotz testified that the assortment of

items in his safe signaled an “intent to distribute.” Because he did not object to

this statement at trial, Ryan’s claim of error is reviewable only if he can show that

not striking this testimony was a manifest error affecting a constitutional right.

State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007) (citing RAP

2.5(a)(3)). Ryan fails to show that an error of such magnitude was manifest.

       “Opinions on guilt are improper whether made directly or by inference.”

State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213 (2014). Such testimony may

violate the defendant’s constitutional right to a jury trial, which vests in the jury



                                               12
No. 81395-1-I/13


“‘the ultimate power to weigh the evidence and determine the facts.’” State v.

Montgomery, 163 Wn.2d 577, 590, 183 P.3d 267 (2008) (quoting James v.

Robeck, 79 Wn.2d 864, 869, 490 P.2d 878 (1971)). A law enforcement officer’s

improper opinion testimony may be particularly prejudicial because it carries “‘a

special aura of reliability.’” State v. King, 167 Wn.2d 324, 331, 219 P.3d 642

(2009) (quoting Kirkman, 159 Wn.2d at 928). An opinion is also more likely to be

improper if it is “stated in conclusory terms parroting the legal standard.”

Montgomery, 163 Wn.2d at 594.

       In determining whether testimony constitutes an improper opinion on guilt,

we necessarily consider the specific circumstances of each case, including (1)

“‘the type of witness involved,’” (2) “‘the specific nature of the testimony,’” (3) “‘the

nature of the charges,’” (4) “‘the type of defense,’” and (5) “‘the other evidence

before the trier of fact.’” State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278

(2001) (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658

(1993)). However, the admission of an improper opinion, without objection from

defense counsel, is not automatically reviewable as a “manifest” constitutional

error. Kirkman, 159 Wn.2d at 936; see RAP 2.5(a)(3). This exception “‘is a

narrow one.’” Kirkman, 159 Wn.2d at 934 (quoting State v. Scott, 110 Wn.2d

682, 687, 757 P.2d 492 (1988)). “[W]e have found constitutional error to be

manifest only when the error caused actual prejudice or practical and identifiable

consequences.” Montgomery, 163 Wn.2d at 595 (citing Kirkman, 159 Wn.2d at

934-35).




                                              13
No. 81395-1-I/14


        Ryan asserts that Detective Hotz expressed a personal belief that Ryan

had committed the charged crime. Specifically, Ryan argues that the following

statement was an improper opinion on guilt:

        [E]verything that is sitting right there is common trade craft of a
        narcotics dealer. A lock box, backpack, a bag. You’re going to
        have the product, the baggies, the scale, possibly a firearm, either
        on the individual or within close proximity. Narcotics, the baggies,
        the scale, that’s intent to distribute.

        Defense counsel interposed no objection.2 Ryan avers that allowing this

opinion testimony was manifest error affecting a constitutional right and, thus,

that he may challenge it for the first time on appeal. RAP 2.5(a)(3).

        In this respect, Montgomery is instructive. In Montgomery, a prosecution

for possession of pseudoephedrine with intent to manufacture

methamphetamine, two detectives observed the defendants purchasing

pseudoephedrine and other items. At trial, one of the detectives testified:

        “I felt very strongly that they were, in fact, buying ingredients to
        manufacture methamphetamine based on what they had
        purchased, the manner in which they had done it, going from
        different stores, going to different checkout lanes. I’d seen those
        actions several times before.”

Montgomery, 163 Wn.2d at 587-88.

        The second detective opined, “‘those items were purchased for

manufacturing.’” Montgomery, 163 Wn.2d at 588. Further, after reviewing the

necessary ingredients for making methamphetamine and the defendant’s


         2 On appeal, Ryan asserts that an objection was not necessary, because his motion in

limine to preclude Detective Hotz from testifying served as a standing objection. Not so. Ryan’s
attempt to prevent Detective Hotz from testifying to anything is not a substitute for an objection to
Detective Hotz testifying to this thing. ER 103(a)(1) requires a specific objection to preserve a
claim of error.



                                                     14
No. 81395-1-I/15


purchases, a forensic chemist added, “‘these are all what lead me toward this

pseudoephedrine is possessed with intent.’” Montgomery, 163 Wn.2d at 588.

       Our Supreme Court held that this testimony constituted improper opinions

on the defendant’s guilt, noting that the testimony involved “the core issue and

the only disputed element, Montgomery’s intent.” Montgomery, 163 Wn.2d at

594. The court concluded, however, that no constitutional error was manifest

from the testimony, because the jurors were properly instructed that they were

the “‘sole judges of the credibility’” and were not bound by expert witness

opinions. Montgomery, 163 Wn.2d at 595.

       Here, in a situation analogous to Montgomery, Detective Hotz stated that

the items found in the defendant’s possession at the time of his arrest showed an

intent to distribute methamphetamine. And, as in Montgomery, whether Ryan

intended to distribute methamphetamine was “the core issue” on which his

prosecution depended. However, like the trial court in Montgomery, the trial

court herein properly instructed the jury on witness credibility:

               You are the sole judges of the credibility of each witness.
       You are also the sole judges of the value or weight to be given to
       the testimony of each witness. In considering a witness’s
       testimony, you may consider these things: the opportunity of the
       witness to observe or know the things he or she testifies about; the
       ability of the witness to observe accurately; the quality of a
       witness’s memory while testifying; the manner of the witness while
       testifying; any personal interest that the witness might have in the
       outcome or the issues; any bias or prejudice that the witness may
       have shown; the reasonableness of the witness’s statements in the
       context of all of the other evidence; and any other factors that affect
       your evaluation or belief of a witness or your evaluation of his or her
       testimony.




                                             15
No. 81395-1-I/16


Absent any evidence to the contrary, such as a written jury inquiry, we presume

that the jury followed the court’s instructions. Montgomery, 163 Wn.2d at 596

(citing Kirkman, 159 Wn.2d at 928).

        In addition, as defense counsel immediately elicited on cross-examination,

Detective Hotz did not personally witness any of the conduct with which Ryan

was charged, nor did he assert or imply a belief as to the true owner of the safes

or their contents. As Ryan argued in his summation, this testimony could also

support the inference that Kittleson, and not Ryan, was the individual harboring

an intent to distribute. Given that the jury was properly instructed as to its role in

judging witness credibility, and that Hotz’s testimony did not identify a particular

person who carried the intent to distribute, the record does not establish actual

prejudice. This is especially so, given the other, abundant evidence of guilt

(including Kittleson’s admissions and the deputies’ observations of Ryan

appearing to engage in the transaction before their very eyes).3 Thus, no error is

manifest. Montgomery, 163 Wn.2d at 595.




        3Were we to conclude that the error was manifest, we would nevertheless deem it to be
harmless. See State v. Scott, 110 Wn.2d at 687 n.4 (manifest constitutional error does not
warrant appellate relief when it is harmless pursuant to the constitutional harmless error test).


                                                    16
No. 81395-1-I/17


      Affirmed.




WE CONCUR:




                   17
