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

STATE OF WASHINGTON,                                 No. 73325-7-


                      Respondent,

         v.



DAVID D. THOMPSON,                                   UNPUBLISHED OPINION

                      Appellant.                     FILED: August 1,2016


       Verellen, C.J. — In a prosecution for assault in the second degree,

circumstantial evidence can be sufficient to prove that the defendant assaulted

anotherwith a deadly weapon. Here, the evidence was sufficient to support David
Thompson's conviction of assault in the second degree. Further, Thompson has not
shown actual prejudice from the admission of the deputy sheriff's testimony about the

victim's demeanor. Accordingly, we affirm Thompson's conviction. We vacate

Thompson's sentence and remand for a new sentencing hearing at which the

sentencing court must make an individualized inquiry into Thompson's present and

future ability to pay legal financial obligations.

                                           FACTS


       In January 2014, Thompson was living in an apartment above a detached

structure on property owned by Earling Manley. Manley's grandsons, Robert Speers

and Adrian Speers, lived in the basement of Manley's home.
No. 73325-7-1/2



       On January 3, 2014, Robert Speers and Adrian Speers and their friend Barry

Sharp were in the Speers' basement living quarters. Sharp's male dog was with

them. Speers and Sharp let Sharp's dog outside, and the dog started playing with

Thompson's female dog which was also outside.1 A few minutes later, Thompson let

his male dog outside, and the two male dogs began fighting. Thompson and Speers

ran outside and separated the dogs. While trying to separate the dogs, one of the

dogs bit Thompson on the hand. Thompson, whose hand was bleeding, took his dog

back to his house, and Sharp and Speers took Sharp's dog back into the basement

of the main house.

       About five minutes later, Thompson came down the stairs into the basement.

Speers and Sharp were in the bathroom attending to the injuries Sharp's dog

sustained in the fight. Thompson said he was going to get his gun and shoot Sharp's

dog. Thompson left the basement and returned about five minutes later carrying a

gun.


       When Speers heard Thompson returning to the basement, he came out of the

bathroom. When he did, Thompson aimed the gun at Speers. Thompson told

Speers that he was going to kill the dog and that if Speers got in the way, he would

shoot him. When Thompson said this, the end of Thompson's gun was about a foot

and a half away from Speers' chest.

       Speers pushed the gun away and hit Thompson in the face. Thompson

grabbed Speers by the throat, and Adrian Speers jumped on Thompson's back to try




       1All references to "Speers" are to Robert Speers unless otherwise noted.
No. 73325-7-1/3



to stop Thompson from attacking his brother. Thompson grabbed his gun and went

back up the stairs when he heard a car coming up the driveway.

       Speers immediately called an emergency number. While Speers was on the

phone, Thompson came back to the basement and tried to convince Speers that the

gun he brought to the basement was not a firearm, but rather was a pellet gun that

Speers owned when he was younger. Speers, however, was convinced that the gun

Thompson pointed at him was a firearm, not a pellet gun:

               Well, when he aimed it level with my chest, I knew it was a real
       gun because he pulled the semi-auto action on it. I mean, it had a
       wood stock, and it was-it's like seven inches longer in the barrel than
       the other gun and twice as thick of a barrel. It didn't have a yellow site
       [sic] on it like a pellet gun would.[2]

Sharp also believed that the gun Thompson pointed at Speers was a firearm, not a

pellet gun. Sharp described the gun as a "regular, good-sized" black rifle with a large

or thick barrel.3

       Two San Juan County deputy sheriffs responded to Speers' emergency call.

The deputies arrested Thompson.

       Thompson was charged with one count of assault in the second degree

(assault with a deadly weapon), domestic violence; one count of felony harassment,

domestic violence; and one count of possession of a dangerous weapon. The

charge of possession of a dangerous weapon was dismissed.




       2 Report of Proceedings (RP) (Oct. 21, 2014) at 247.
       3 Id. at 322.
No. 73325-7-1/4



      Thompson was convicted and moved for a new trial. The court granted his

motion, finding that the State failed to provide exculpatory evidence related to a

witness.

      On retrial, the State introduced the pellet gun Speers claimed he owned when

he was younger. Speers testified that he was sure that the pellet gun was not the

weapon Thompson pointed at him. Sharp also testified that the pellet gun the State

introduced into evidence was not the weapon he saw Thompson carrying.

      The jury on retrial found Thompson guilty of assault in the second degree and

harassment and answered "no" on both domestic violence special verdicts. The

court sentenced Thompson to 78 months and imposed both mandatory and

discretionary legal financial obligations (LFOs). Thompson appeals.

                                      ANALYSIS

                              Sufficiency of the Evidence

      Thompson challenges the sufficiency of the evidence to support his conviction

of assault with a deadly weapon. The due process clauses of the federal and state

constitutions require the State to prove every element of the crime charged beyond a

reasonable doubt.4 A claim of insufficiency of the evidence admits the truth of the

State's evidence and all reasonable inferences from that evidence.5 "[T]he relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the



      4 U.S. Const, amend. XIV; Wash. Const, art. I, § 3; Apprendi v. New Jersey.
530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
       5 State v. Kintz. 169 Wn.2d 537, 551, 238 P.3d 470 (2010).
No. 73325-7-1/5



crime beyond a reasonable doubt."6 In determining the sufficiency of the evidence,

circumstantial evidence and direct evidence are equally reliable.7

      A person is guilty of assault in the second degree if the person, under

circumstances not amounting to assault in the first degree, assaults another with a

deadly weapon.8 A "deadly weapon" means:

      any explosive or loaded or unloaded firearm, and shall include any
      other weapon, device, instrument, article, or substance, including a
      "vehicle". . . which, under the circumstances in which it is used,
      attempted to be used, or threatened to be used, is readily capable of
      causing death or substantial bodily harm.[9]

      Thompson argues that the State failed to prove that he used a deadly weapon

during the assault because Speers and Sharp testified that the pellet gun the State

introduced into evidence was not the gun Thompson pointed at Speers during the

assault.10 But "[t]he State need not introduce the actual deadly weapon at trial."11

Circumstantial evidence such as a witness's description of the gun and statement

that the witness firmly believed the weapon was a gun may be sufficient, particularly




       6 Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L Ed. 2d 560
(1979).
       7 State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
       8RCW9A.36.021(a), (c).
       9RCW9A.04.110(6).
       10 Thompson's argument is premised on the contention that the State's
theory was that Thompson assaulted Speers with the pellet gun the State
introduced into evidence. This is incorrect. During closing argument, the State
acknowledged that there was an issue about whether Thompson assaulted Speers
with a firearm or a pellet gun, but argued that "both of those things in this case are
deadly weapons." RP (Oct. 22, 2014) at 425.
       11 State v. Bowman, 36 Wn. App. 798, 803, 678 P.2d 1273 (1984).
No. 73325-7-1/6



when coupled with a defendant's threats to use the gun.12 A defendant's express

verbal threat to shoot the victim necessarily implies that the defendant had access to

a firearm capable of killing or seriously injuring the victim.13

       Here, both Speers and Sharp described the gun Thompson pointed at Speers,

and both testified that they believed it was a firearm, not a pellet gun. A firearm is

deemed deadly per se, regardless of whether it is loaded.14 Further, both Speers

and Sharp testified that Thompson threatened to shoot Speers. Viewing the

evidence in the light most favorable to the State and drawing all reasonable

inferences in favor of the State, any rational trier of fact could have found the

essential elements of assault with a deadly weapon beyond a reasonable doubt.15

                               Testimony of Deputy Harvey

       On direct examination, San Juan County Deputy Raymond Harvey, one of the

deputy sheriffs who responded to Speers' emergency call, testified about Speers'

demeanor when he encountered him:

       Q.      What was [Speers'] demeanor?

       A.      He was breathing heavy and very point blank with his story with
               me.



       12jo\
       13 State v. Hentz, 99 Wn.2d 538, 541, 663 P.2d 476 (1983).
       14 RCW 9A.04.110(6); State v. Taylor, 97 Wn. App. 123, 126, 982 P.2d 687
(1999).
        15 Further, we note that there is nothing in the record to suggest that the
pellet gun the State introduced into evidence was not operational. The record
contains sufficient evidence that Thompson threatened to use the pellet gun to
shoot Speers in a way that would have caused substantial bodily harm. Even if the
jury believed that Thompson used the pellet gun in the assault, the evidence was
sufficient to support Thompson's conviction of assault with a deadly weapon. See
Taylor, 97 Wn. App. at 128.
No. 73325-7-1/7



       Q.     What do you mean by point blank?

       A.     Meaning there wasn't any hesitation in what he relayed to me.

       Q.     Why is that significant?

       A.     Generally, somebody making a story up has some hesitation
              because they actually have to think about what they are saying
              rather than recalling the information from memory.
       Q.     Are you saying that based on your experience as a law
              enforcement officer?


       A.     I amJ16]

       Defense counsel did not object to Deputy Harvey's testimony about Speers'

demeanor. Thompson argues that Deputy Harvey's testimony invaded the province

of the jury and, accordingly, admission of the testimony was a manifest error affecting

a constitutional right that he may raise for the first time on appeal.

       "A witness's expression of personal belief about the veracity of another

witness is inappropriate opinion testimony in criminal trials."17 The admission of such

testimony may be reversible error because such evidence violates the defendant's

constitutional right to a jury trial.18 Here, Deputy Harvey testified that a person who is

making up a story generally hesitates when telling the story because the person has

to "think about what they are saying rather than recalling the information from

memory."19 He testified that Speers did not hesitate when relating what had


       16 RP (Oct. 21, 2014) at 291.
       17 State v. Perez-Valdez. 172 Wn.2d 808, 817, 265 P.3d 853 (2011); see
also State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008) (among the
areas which are "clearly inappropriate for opinion testimony in criminal trials" is an
expression of personal belief as to the veracity of a witness).
       18 Perez-Valdez, 172 Wn.2d at 817.
       19 RP (Oct. 21, 2014) at 291.
No. 73325-7-1/8



happened. The obvious inference from Deputy Harvey's testimony is that he did not

believe Speers was making up his story about the assault, but rather was telling the

truth. Deputy Harvey's testimony amounted to improper opinion testimony about

Speers' veracity.

          Because Thompson did not object at trial to Deputy Harvey's testimony about

Speers' demeanor, we must determine if Thompson can raise this issue for the first

time on appeal. Generally, we do not consider issues raised for the first time on

appeal.20 An exception to this rule allows a party to raise for the first time on appeal

a manifest error affecting a constitutional right.21 We construe this exception to

RAP 2.5(a) narrowly.22

       A constitutional error is "manifest" if it actually affected the defendant's rights

at trial.23 With regard to witness opinion testimony, manifest error "requires a nearly

explicit statement by the witness that the witness believed the accusing victim.24

Further, "manifest" requires a showing of actual prejudice.25 To show actual

prejudice, the defendant must make a plausible showing that the error had practical

and identifiable consequences in the trial of the case.26




       20 RAP 2.5(a); State v. Stoddard. 192 Wn. App. 222, 226, 366 P.3d 474
(2016).
       21 RAP 2.5(a)(3).
       22 State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999).
       23 State v. Kirkman. 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).
       24 ]g\ at 936.
       25 State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).
       26 WWJ Corp., 138 Wn.2d at 603.



                                             8
No. 73325-7-1/9



       Important to determining whether the defendant was actually prejudiced by

witness opinion testimony is whether the jury was properly instructed.27 The courts in

State v. Kirkman28 and State v. Montgomery29 found no prejudice from improper

opinion testimony on witness credibility where the jury was instructed that jurors are

the sole judges of the credibility of witnesses and are not bound by expert witness

opinions.30 The jury in this case was given virtually identical instructions. We

presume the jury followed the court's instructions where, as here, there is no

evidence to the contrary.31 Thompson has not shown actual prejudice from the

admission of Deputy Harvey's testimony about Speers' demeanor.

       Further, a manifest constitutional error is subject to a harmless error

analysis.32 We employ the "overwhelming untainted evidence test" to determine if

the error was harmless beyond a reasonable doubt.33 Under that test, we examine

whether the untainted evidence is so overwhelming that it leads necessarily to a

finding of guilt.34 We presume that constitutional errors are prejudicial, and the State




       27 Montgomery, 163 Wn.2d at 595.
       28159 Wn.2d 918, 155 P.3d 125 (2007).
       29 163 Wn.2d 577, 183 P.3d 267 (2008).
       30 Kirkman. 159 Wn.2d at 937; Montgomery. 163 Wn.2d at 595-96.
       31 Montgomery. 163 Wn.2d at 596.
       32 Kirkman. 159 Wn.2d at 927.
       33 State v. Gulov. 104 Wn.2d 412, 426, 705 P.2d 1182(1985).
       34 Id.
No. 73325-7-1/10



must convince us beyond a reasonable doubt that any reasonable jury would have

reached the same result absent the error.35

      Here, we are convinced beyond a reasonable doubt that any reasonable jury

would have reached the same result absent Deputy Harvey's testimony about

Speers' demeanor. The unrebutted testimony of Robert Speers, Adrian Speers, and

Sharp was that Thompson pointed a gun at Robert Speers and threatened to shoot

him. Any error arising from the admission of Deputy Harvey's testimony was

harmless beyond a reasonable doubt.

      Thompson argues the prosecutor committed misconduct by arguing to the jury

that Deputy Harvey had determined that Speers was telling the truth. Thompson

does not, however, cite to any specific statements by the prosecutor on which he

bases his claim of misconduct. During closing argument, the prosecutor argued:

             Now, how do we know that Robbie [Speers] is telling the truth?
      That's for you to decide. You saw his demeanor on the stand, what he
      was like when he was speaking to you. And we know that Deputy
      Harvey, who saw Robbie Speers that day, he testified that when Robbie
      told him that the Defendant pointed a gun at him and threatened to kill
      him, that when he said that, he said it in a way that sounded truthful to
      Deputy Harvey based on his law enforcement experience.1361

      Thompson did not object to these statements. Accordingly, to prevail on his

claim of prosecutorial misconduct, Thompson must establish "'that the misconduct




      35 State v. Watt. 160 Wn.2d 626, 635, 160 P.3d 640 (2007); State v. Hudson.
150 Wn. App. 646, 656, 208 P.3d 1236 (2009).
      36RP(Oct. 22, 2014) at 421.


                                         10
No. 73325-7-1/11



was so flagrant and ill-intentioned that it caused an enduring and resulting prejudice

that could not have been neutralized by an admonition to the jury.'"37

      Thompson has not met his burden. A prosecutor does not commit misconduct

any time he or she mentions credibility.38 "[A] prosecutor may comment on a

witness's veracity as long as a personal opinion is not expressed and as long as the

comments are not intended to incite the passion of the jury.39 Here, the prosecutor

did not express her personal opinion as to Speers' veracity. Nor do we conclude that

her comments were intended to incite the passion of the jury. Thompson has not

established prosecutorial misconduct.

                               Legal Financial Obligations

       Thompson argues that he is entitled to a new sentencing hearing because the

trial court imposed LFOs without making an individualized inquiry into his ability to

pay. The State argues that because Thompson did not raise this issue below, he is
precluded from raising it on appeal.

       In State v. Blazina, the Washington Supreme Court held that "a trial court has

a statutory obligation to make an individualized inquiry into a defendant's current and
future ability to pay before the court imposes LFOs."40 In State v. Duncan, the
defendant did not object at trial to the trial court's imposition of LFOs and, like

Thompson, argued for the first time on appeal that the record did not support a


       37 State v. Hecht, 179 Wn. App. 497, 503, 319 P.3d 836 (2014) (quoting ln_re
Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012)).
       38 State v. Edvalds. 157 Wn. App. 517, 525, 237 P.3d 368 (2010).
       39ldL
       40 State v. Blazina, 182 Wn.2d 827, 830, 344 P.3d 680 (2015).



                                            11
No. 73325-7-1/12



finding that he had or would have any likelihood of being able to pay the LFOs.41

Relying on Blazina and its progeny, the court remanded to the trial court "for

resentencing with proper consideration of Duncan's ability to pay LFOs."42

      Here, the record does not show that the sentencing judge made an

individualized inquiry into Thompson's current and future ability to pay before

imposing LFOs. Remand for resentencing is appropriate.

                                    CONCLUSION

      We affirm Thompson's conviction, vacate the sentence, and remand for a new

sentencing hearing at which the court must make an individualized inquiry into

Thompson's current and future ability to pay LFOs.




WE CONCUR:




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      41 State v. Duncan. 185 Wn.2d 430, 435,         P.3d      (2016).
      42 Id. at 437-38.



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