       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                                                 No. 76938-3-1                   CO
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                                                 DIVISION ONE
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                                                 UNPUBLISHED OPINION
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 BARRY NICHOLAS ANGASAN,                                                                       :I a
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                              Appellant.         FILED: December 10, 2018


       CHUN,J. — Barry Angasan appeals his conviction for vehicular homicide.

Angasan and Jeffrey Thomas were both injured in a motor vehicle accident.

Thomas died as a result of his injuries. At trial, the jury essentially considered a

single disputed issue: whether Angasan drove the vehicle at the time of the

accident. Angasan claimed Thomas drove.

       Over objection, the trial court admitted a medical examiner's autopsy

report referring to Thomas as the "Eu]nrestrained, ejected passenger" and the

"unrestrained passenger." In a section titled,"CAUSE OF DEATH,"the autopsy

report stated,"Contributory element: Alcohol use by the at fault driver." In a

section titled,"OPINION," the autopsy report stated,"Alcohol usage by the at

fault driver is considered a contributory element." These statements constituted

impermissible opinion evidence on Angasan's guilt. As the State has not met its

burden to establish harmlessness of the error beyond a reasonable doubt, We

reverse and remand for a new trial.
No. 76938-3-1/2

                                     1.
                                BACKGROUND
      On May 1, 2015, Angasan left his motel room to get food. Angasan took

the car of his long-time girlfriend, Janet Buchanan. As Angasan left the motel, he

saw Thomas walking. Angasan asked Thomas if he needed a ride and Thomas

accepted. Angasan did not know Thomas prior to seeing him that day. Angasan

drove him to the house of Thomas's sister, Lisa Gardner-Thomas, to pick up a

bicycle.

      Around noon, Angasan and Thomas arrived at Gardner-Thomas's house.

Thomas offered Gardner-Thomas vodka but she declined. Gardner-Thomas

noticed Thomas smelled like "leftover beer." After Thomas picked up the bicycle,

he got into the passenger side of the vehicle. Angasan and Thomas then left the

house and headed toward South Skagit Highway.

       The same day, while driving on South Skagit Highway, Amanda Hertel

came upon the scene of an accident. Hertel saw a car stopped sideways in the

middle of the road and alcohol bottles scattered around the accident.

       People found both Angasan and Thomas lying off to the side of the road.

They were unconscious, but breathing. Angasan attempted to get up and move

around. Hertel told Angasan not to move and that dispatch had sent an

ambulance. Angasan yelled at her not to call "the cops." Angasan then got up

and started coughing and vomiting blood before he fell back down. Hertel asked

Angasan three times if anyone else had been in the car, and each time he said

he was alone. Hertel noticed a strong alcohol odor on Angasan.




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No. 76938-3-1/3


      Another witness, Frederick Freeman, came upon the scene and attempted

to help Angasan. Freeman asked Angasan if he was the driver and Angasan

answered yes. Freeman, however, later overheard Angasan tell emergency

medical technicians(EMTs)that he had not been driving. Freeman did not

notice any odors coming from Angasan.

       Harry Jay Follman, an EMT,arrived and aided Angasan. Follman first had

to calm Angasan down, as he had several "emotional outbursts and swings."

Follman asked Angasan if he was driving when the accident occurred. Angasan

muttered an unintelligible response. Follman then told Angasan,"Mook, you

know, we're out here on the side of the road, I'm trying to figure out what

happened to you so I can give you the best possible care, were you the driver of

the car?" Angasan replied,"Yeah."

       Another civilian at the scene, Paul Crowell, tried to assist Follman in aiding

Angasan. Crowell reported he heard Angasan say he was not the driver, but

also that Angasan "seemed confused."

       EMTs transported Angasan and Thomas to Skagit Valley Hospital. Tyler

Dalton, a registered nurse, provided care to Angasan. Angasan told Nurse

Dalton that"he was the unbelted driver." During this time, Angasan faded in and

out of consciousness.

       Dr. Michael Erie, at the time a general surgeon at Skagit Valley Hospital,

treated Angasan's head injury. Angasan "was somewhat belligerent and...

could not remember events surrounding the accident." Dr. Erie relied on a blood




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No:76938-3-1/4


draw and computed tomography(CT)scan for his diagnosis. The CT did not

show evidence of a structural injury.

        Thomas died at the hospital the same day as the accident, May 1, 2015.

Dr. Gary Goldfogel, the Whatcom County Medical Examiner, performed an

autopsy on Thomas on May 4, 2015, and prepared a report. When creating

reports, Dr. Goldfogel "start[s] with law enforcement, medical reports if they're

relevant to the case,[his] external examination, internal examination,[and]

biopsy examination." On the first page of the report, Dr. Goldfogel referred to

Thomas as the lu]nrestrained, ejected passenger," and described him as the

"unrestrained passenger" on the second and third pages. In the "CAUSE OF

DEATH" section, the autopsy report stated,"Contributory element: Alcohol use

by the at fault driver." In a section titled, "OPINION," the autopsy report stated,

"Alcohol usage by the at fault driver is considered a contributory element."

        On May 6, 2015, the State charged Angasan with vehicular homicide.1

        Between May 7 and May 12, 2015, Angasan made several recorded

telephone calls to Buchanan from jail. In the telephone calls, Buchanan

recommended Angasan write an apology letter to Thomas's family and do

everything he could to show remorse. Angasan replied, "Yeah." Buchanan also

told Angasan he must feel awful and he responded, "I do." In other




      The State alleged all three alternatives of vehicular homicide. Under RCW 46.61.520, a
prosecutor may prove vehicular homicide by demonstrating a driver operated a motor vehicle
(1) while under the influence of intoxicating liquor or any drug,(2)in a reckless manner, or(3)
with disregard for the safety of others, which proximately caused a person's death.


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No. 76938-3-1/5


conversations, Angasan claimed the accident happened because he saw a deer

and said,"1 can't believe I did that either. I really messed up, didn't I?"

       At trial, Angasan asserted he was not driving at the time of the accident.

Defense counsel objected to the admission of Dr. Goldfogel's autopsy report.

The court overruled the objection.

       The State then called Trooper Charles Sletten, a detective with the

Washington State Patrol. Trooper Sletten never personally visited the scene of

the accident, but a sergeant and two other detectives kept him apprised of the

Investigation after they processed the scene. Trooper Sletten testified, "I think

there's enough other parts of this investigation that I felt comfortable without

having to have a medical analysis to say, yes, someone was here or there in the

vehicle, to say that Mr. Angasan was driving the vehicle."

       Angasan called a neurology expert, Dr. Rodney Johnson, to testify he

suffered a grade 3 concussion. Dr. Johnson stated such a concussion would

cause problems such as confusion and memory impairment for at least several

days and often weeks. He further opined that liindividuals with [Angasan'sj level

of head injury would really not give reliable answers to a host of questions."

       Angasan testified in his defense. According to his testimony: Angasan

did not remember many parts of the day of the accident He drove the car when

he and Thomas left Gardner-Thomas's house. However, after Thomas

repeatedly offered Angasan alcohol, Angasan pulled over and let Thomas drive

so he could have a drink. Angasan remembered waking up in the hospital but




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No. 76938-3-1/6


had barely any memory of his stay. Additionally, Angasan did not remember the

majority of his May 2015 phone calls with Buchanan.

        In closing argument, defense counsel argued Angasan's head injury

should lead the jury should find the inculpatory statements unreliable. She

pointed to Dr. Johnson's testimony that Angasan's injury caused confusion and

memory loss. However, she argued, Angasan eventually recalled Thomas was

driving at the time of the collision.

       The Jury found Angasan guilty of vehicular homicide.2

        Angasan appeals.

                                           ANALYSIS
        Angasan argues the trial court erred by admitting the medical examiners

autopsy report because it contained an impermissible opinion on guilt and

constituted hearsay. The State addresses Angasan's hearsay objection but does

not discuss whether the report improperly conveyed opinion evidence to the jury,

and argues that any error in admitting the report was harmless as cumulative.

We determine the trial court erred by admitting the report because it contained

impermissible opinion evidence.

        Appellate courts review a trial court's decision to admit expert testimony

for an abuse of discretion. State v. Kirkman, 159 Wn.2d. 918, 927, 155 P.3d 125

(2007). "An abuse of discretion exists l[w]hen a trial court's exercise of its

discretion is manifestly unreasonable or based on untenable grounds or


    2 The jury found Angasan guilty under the first alternative (while under the Influence of
Intoxicating liquor or any drug).


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No. 76938-3-1/7


reasons.'" State v. Quaale, 182 Wn.2d 191, 197, 340 P.3d 213(2014)(citing

State v. Stenson, 132 Wn.2d 668, 701,940 P.2d 1239(1997)).

      Witnesses typically may not directly or indirectly testify in the form of an

opinion as to the guilt or credibility of a defendant. Kirkman, 159 Wn.2d at 927;

Quaale, 182 Wn.2d at 199. "Such testimony is unfairly prejudicial to the

defendant because it invades the exclusive province of the jury." Kirkman, 159

Wn.2d at 927. Courts, however, will not exclude expert testimony just because it

covers an issue the jury must decide. Kirkman 159 Wn.2d at 929.

      To determine whether a statement constitutes impermissible opinion

testimony, courts consider "'(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.'" Kirkman, 159 Wn.2d at 928

(citing Demerv, 144 Wn.2d at 759 (internal quotations and citation omitted)).

Testimony on the defendant's guilt, however, is "clearly inappropriate for opinion

testimony in criminal trials." Quaale, 182 Wn.2d at 200. Courts use these same

standards for excluding evidence, such as reports, that inadmissibly opine on

guilt. See State v. Demerv, 144 Wn.2d 753,760--61, 30 P.3d 1278(2001).

       Here, the autopsy report identified Thomas as the unrestrained passenger

In the vehicle. This statement provided a conclusive opinion about the only

disputed element whether Angasan had been driving. See Quaale, 182 Wn.2d

at 200. Additionally, the report described Thomas as the passenger and stated

the at-fault driver was intoxicated. Because Thomas and Angasan were the only




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No. 76938-3-1/8


people in the car, these comments indicated Angasan was the at-fault,

Intoxicated driver. As a result, the autopsy report provided an opinion on

Angasan's guilt and invaded the province of the jury.

       Furthermore, Dr. Goldfogel's opinion on who had been driving was

couched within his expert testimony at trial. On cross-examination, Dr. Goldfogel

admitted that the determinations came from other reports and that he had no

independent knowledge of who was driving the car. However, he also testified

that, based on his review of the crash scene reports, he believed it is "much less

likely" that Thomas had been driving. The testimony therefore further Indicated

Dr. Goldfogel believed Angasan was the intoxicated "at fault driver referenced in

the report.

       The State argues the admission of the autopsy report constituted

harmless error because it provided only cumulative evidence.3 Improper opinion

testimony violates a defendant's constitutional right to have the jury decide facts

critical to his or her guilt. Quaale, 182 Wn.2d at 201-02. "Constitutional error is

harmless only if the State establishes beyond a reasonable doubt that any

reasonable jury would have reached the same result absent the error." Quaale,

182 Wn.2d at 202.




   'On appeal, Angasan challenged the admissibility of his statement to Nurse Dalton that he
was the *unbelted driver on privilege grounds. Because we conclude that, even assuming the
court properly admitted the statement to Nurse Dalton, the error In admitting the autopsy report
was not harmless, we do not address Angasan's argument


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No. 76938-3-1/9


       Trooper Sletten testified that he "felt comfortable" saying that Angasan

had been driving but did not respond to the scene and relied on information

provided by other detectives and a sergeant in his investigative unit. The other

testifying witnesses could only repeat conflicting statements Angasan had made

as to whether he had been driving. The court also admitted the recording of his

calls with Buchanan. Yet at trial, Angasan testified that he did not remember the

inculpatory statements and that he had not been driving when the accident

occurred. An expert testified Angasan's statements were unreliable because he

suffered a serious concussion in the accident that could have caused confusion

and memory loss for weeks.

       Moreover, the statements in the report indicating Angasan had been

driving while intoxicated were more significant because it came from a

government official. See State v. Thompson, 90 Wn. App.41,46, 950 P.2d 977

(1998)("an opinion as to the defendant's guilt is particularly prejudicial when it is

expressed by a government official"). Additionally, the State called Dr. Goldfogel

as an expert. During his expert testimony and in his expert report, Dr. Goldfogel

stated Thomas was the passenger, casting "an aura of scientific certainty" over

his opinion, and "significantly increasing the weight the jury likely attached to it."

Quaale 182 Wn.2d at 202.

       Angasan's defense focused on his assertion he was not driving.

Witnesses presented conflicting evidence on the issue. The State has not met its




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No. 76938-3-1/10


burden to demonstrate, beyond a reasonable doubt, that a reasonable jury would

have reached the same result absent the error.4

        We reverse and remand for a new trial.



                                                             C44.4.te, 9.

WE CONCUR:




  '   Because we find this error warrants reversal, we do not address Angasan's claims of
Ineffective assistance of counsel, error as to admission of two blood tests, cumulative error, or
Improper sentencing.


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