                                                                          FILED
                                                                       JUNE 25, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals Division III




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

STATE OF WASHINGTON,                         )         No. 36328-7-III
                                             )
                     Respondent,             )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
DAVID MATTHEW MCGOVERN,                      )
                                             )
                     Appellant.              )

       PENNELL, C.J. — David Matthew McGovern appeals his conviction for first

degree theft. We affirm his conviction, but remand for reconsideration of discretionary

legal financial obligations (LFOs).

                                         FACTS

       On August 23, 2015, David McGovern was working as a Walmart night manager

when a deposit bag containing over $20,000 in cash went missing from a store safe. At

the time of the loss, approximately 20 to 25 Walmart employees had authority to access

the safe. However, video surveillance revealed only five employees in the area during the

critical time period. One of the five people was Mr. McGovern.

       Walmart’s asset protection managers reviewed video surveillance footage of the

cash office containing the safe. They observed Mr. McGovern accessed the safe at
No. 36328-7-III
State v. McGovern


approximately 7:00 p.m., one hour prior to his scheduled shift. No one else was in the

vicinity at the time. When Mr. McGovern entered the cash office he was talking on a cell

phone. Contrary to company policy, Mr. McGovern wore a jacket and carried a satchel.

Mr. McGovern stayed on his phone as he began pulling bags of cash (known as re-set

bags) meant to replenish self-checkout stations. As he pulled the bags, he hugged the

safe’s door up against him. This blocked the surveillance camera from recording what

Mr. McGovern was doing inside the safe. The video did record a deposit slip visible

briefly at Mr. McGovern’s right side as he was working inside the safe. Walmart’s

deposit bags contain deposit slips. Re-set bags do not.

       Videos from prior shifts indicated Mr. McGovern normally took about two to four

minutes to pull re-set bags. On August 23, it took him five minutes. Once he was done

with the safe, Mr. McGovern left the cash office, went to the men’s bathroom (where

there was no video), and then left the building and drove off in his car. Shortly thereafter

he returned to Walmart, went back to the cash office and reopened the safe two times

before leaving.

       The asset protection managers observed Mr. McGovern was the only employee

who deviated from standard procedures on August 23. The other four employees who




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State v. McGovern


accessed the safe all engaged in typical shift work. In addition, most of the other

employees who accessed the safe were not alone.

       After reviewing the surveillance video, the asset protection managers determined

their sole target of investigation was Mr. McGovern; none of the other employees had

done anything abnormal. Mr. McGovern was interviewed and disclaimed any knowledge

about the missing money. However, after the loss prevention mangers laid out the results

of their investigation, Mr. McGovern said, “‘Well, you already know what I did so do

what you gotta do.’” Report of Proceedings (RP) at 219. Walmart subsequently

terminated Mr. McGovern’s employment and the matter was turned over to law

enforcement.

       A police officer assigned to the investigation interviewed Mr. McGovern. During

the interview, Mr. McGovern recounted what he was doing during the surveillance

footage. Mr. McGovern said he dropped a deposit bag and had to kneel to collect the cash

that spilled from it.1 He also explained he briefly went home prior to his shift on August

23 because he realized he forgot his work radio. Mr. McGovern mentioned he had filed

for bankruptcy and was getting a divorce.



       1
         The video does not contain any footage indicating a bag had been dropped on the
floor or that Mr. McGovern knelt down to retrieve fallen bills.

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State v. McGovern


        The officer interviewed the four other Walmart employees who had access to the

safe on August 23. The officer asked the employees questions about their work routines

and financial circumstances. Based on his interviews, the officer concluded his sole focus

of investigation was Mr. McGovern.

        A warrant was obtained for Mr. McGovern’s financial records. It was discovered

Mr. McGovern started making large cash deposits (hundreds or thousands of dollars) into

his bank account the day after the Walmart money went missing. In a follow-up

interview, Mr. McGovern told law enforcement he had considered stealing from Walmart,

but decided not to. Mr. McGovern stated he had cashed out approximately $7,000 in

retirement funds to pay his debts. He also borrowed another $7,000 from family. Mr.

McGovern claimed he was hiding cash from his wife in order to avoid giving her money

in the event of a divorce. Mr. McGovern again denied taking money from the Walmart

safe.

        The State charged Mr. McGovern with first degree theft. Prior to trial, Mr.

McGovern filed a motion in limine objecting to the State’s attempt to have Walmart’s

asset protection managers narrate the events of the surveillance video. Mr. McGovern

argued the video should stand on its own. Mr. McGovern also objected to testimony from

the State’s witnesses that would express an opinion on his guilt.


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State v. McGovern


       The trial court granted Mr. McGovern’s motion in part. The court agreed to

prohibit the State’s witnesses from providing opinions as to guilt. However, the court

allowed the Walmart managers to testify as experts on store procedures and to provide

narrative explanations of the surveillance video footage. Mr. McGovern was advised he

should object if he believed the testimony veered from this approved scope of testimony

into improper opinions of guilt.

       The case proceeded to trial. The State presented testimony from two Walmart asset

protection managers, five employees (including all employees who had access to the safe

on August 23, other than Mr. McGovern) and the investigating police officer. At no point

during the State’s case did Mr. McGovern object to testimony from the State’s witnesses

as constituting improper opinion testimony as to guilt. Nor did Mr. McGovern make any

objections based on prosecutorial misconduct. In his case in chief, Mr. McGovern

presented testimony from two relatives who verified loaning him money. Mr. McGovern

also testified on his own behalf. The jury convicted Mr. McGovern as charged.

       At sentencing, the parties agreed on restitution in the amount of $20,533.66. In

addition to restitution, the trial court imposed mandatory and discretionary LFOs. Prior to

imposing discretionary LFOs, the trial court did not make an individualized inquiry into




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State v. McGovern


Mr. McGovern’s ability to pay. Instead, the court cited Mr. McGovern’s excellent work

history.

       Mr. McGovern timely appeals his judgment and sentence.

                                         ANALYSIS

       Mr. McGovern argues for reversal of his conviction based on evidentiary error and

prosecutorial misconduct. He also challenges imposition of LFOs. Much of our analysis is

guided by principles of error preservation.

       Appellate review of trial errors generally requires preservation through a

contemporaneous objection. See RAP 2.5(a). Exceptions exist for constitutional errors

and errors as to jurisdiction or failure to state a claim. Id. But evidentiary errors are not

constitutional. They are generally deemed waived if unaccompanied by an objection.

State v. Powell, 166 Wn.2d 73, 84, 206 P.3d 321 (2009) (plurality opinion).

       While allegations of prosecutorial misconduct are constitutional, unpreserved

errors are still rarely recognized on appeal. See In re Pers. Restraint of Phelps, 190 Wn.2d

155, 165, 410 P.3d 1142 (2018). To warrant review, an allegation of misconduct must

have been so flagrant and ill-intentioned that it could not have been neutralized by a

curative instruction. Id. Contrary to what is often suggested in appellate briefing, alleging

multiple trial errors is not a basis to recognize unpreserved errors on appeal. The doctrine


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No. 36328-7-III
State v. McGovern


of cumulative error has to do with assessing the prejudice arising from error. See In re

Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other

grounds by State v. Gregory, 192 Wn.2d 1, 427 P.3d 621 (2018). It is irrelevant to the

issue of error preservation. Rookstool v. Eaton, __ Wn.2d __, 457 P.3d 1144, 1149 (2020)

(“Cumulative error is not a method for considering unpreserved issues on appeal.”).

       Errors at sentencing are different than trial errors. Consistency is an important goal

of sentencing jurisprudence. Furthermore, remand for correction of sentencing errors does

not raise the same type of finality concerns as remand for retrial. Our courts will consider

errors at sentencing for the first time on appeal when compelled by due process. State v.

Ford, 137 Wn.2d 472, 484, 973 P.2d 452 (1999). When it comes to unpreserved

allegations of improper LFOs, Washington’s appellate courts will often grant substantive

review if the record indicates commission of a potentially harmful legal error. State v.

Blazina, 182 Wn.2d 827, 833-34, 344 P.3d 680 (2015); State v. Glover, 4 Wn. App. 2d

690, 693, 423 P.3d 290 (2018) (“In the wake of Blazina, appellate courts have heeded its

message and regularly exercise their discretion to reach the merits of unpreserved LFO

arguments.”).

       With these principles in mind, we address Mr. McGovern’s three challenges on

appeal.


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State v. McGovern


1. Trial error—evidentiary rulings

       The only evidentiary issue that has been preserved for appeal is Mr. McGovern’s

complaint that the Walmart asset protection managers should not have been permitted to

narrate the State’s video evidence and provide expert opinions as to what was occurring

therein. Our analysis is guided by ER 702, which governs the admissibility of expert

opinions. We review a trial court’s decision to permit expert testimony for abuse of

discretion. State v. Swan, 114 Wn.2d 613, 655, 790 P.2d 610 (1990).

       Witnesses may testify as experts under ER 702 as long as two preconditions are

met. First, the witness must be qualified by virtue of “knowledge, skill, experience,

training or education.” ER 702. Second, the expert’s testimony must be helpful, in that it

will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id.

An expert’s testimony is not inadmissible simply because it “embraces an ultimate issue

to be decided” at trial. ER 704.

       The trial court here had ample basis to admit the testimony of Walmart’s loss

prevention mangers under ER 702. The loss prevention managers were familiar with

standard procedures for accessing the cash room and handling deposit and re-set bags.

Their expertise placed them in a superior position to recognize the contents of the safe

and point out when the deposit bag at issue in the case was visible and when it no longer


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State v. McGovern


appeared in view of the video camera. The managers also had a superior ability to

recognize items such as deposit slips that might go unnoticed by an untrained observer.

       This court’s review of the surveillance video confirms the importance of the

State’s expert testimony. The video is in color, but blurry. It is lengthy and lacks audio.

Contrary to Mr. McGovern’s position, the video does not speak for itself. Without

narrative testimony from the transcript, it is difficult to discern what is happening in the

video, especially with respect to the contents of the safe. In this type of circumstance,

opinion testimony is warranted. See State v. Collins, 152 Wn. App. 429, 437-38, 216 P.3d

463 (2009).

       The video was published to the jury as an exhibit. Mr. McGovern was therefore

free to provide his own narration of what happened. He also could have used the video to

impeach the managers’ testimony, should their descriptions of the video’s contents go too

far. The trial court thus properly found the testimony from the State’s experts was

appropriate and not unfair.

       Mr. McGovern points out that, at one point in the testimony, one of the asset

protection mangers inaccurately testified he could see the deposit bag in the surveillance

video. Our review of the video indicates that, at the point in time specified by the witness,

the video’s view of the safe’s interior was obstructed. Mr. McGovern objected and the


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No. 36328-7-III
State v. McGovern


objection should have been sustained. But the reason the testimony was improper was not

because the witness lacked expertise under ER 702. It instead was that the particular

portion of expert testimony lacked foundation. While the trial court should have sustained

Mr. McGovern’s objection on this point, the failure to do so was harmless error. The jury,

like this court, could see the video and discern the witness was mistaken. The fact that the

witness was inaccurate as to a portion of the testimony undermined the witness’s

credibility to the jury, but it did not create a risk of prejudicing the jury’s verdict.

2. Trial error—prosecutorial misconduct

       For the first time on appeal, Mr. McGovern makes several allegations of

prosecutorial misconduct. As previously noted, the lack of a contemporaneous objection

presents a significant hurdle to appellate review. Our analysis indicates none of Mr.

McGovern’s allegations meets the requisite standard for relief.

       Mr. McGovern first claims the prosecutor violated the trial court’s in limine order

by eliciting opinions of guilt from the asset protection managers and the police officer.

See State v. Scherf, 192 Wn.2d 350, 389, 429 P.3d 776 (2018) (A “witness, lay or expert,

may not testify about the defendant’s guilt or innocence.”). We are unswayed. The trial

court specifically instructed Mr. McGovern to object if the State’s witnesses strayed

beyond their approved expert testimony. He did not do so. Instead, Mr. McGovern


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No. 36328-7-III
State v. McGovern


elicited his own testimony on this issue as part of a defense strategy to argue a rush to

judgment and inadequate investigation. Given defense counsel purposefully delved into

this topic, a remedy on appeal is unavailable. See State v. Rushworth, 12 Wn. App. 2d

466, 476, 458 P.3d 1192(2020).

       Next, Mr. McGovern argues the prosecutor improperly asserted an opinion about

Mr. McGovern’s guilt. Mr. McGovern points to statements made during his cross-

examination and in closing, where the prosecutor noted Mr. McGovern’s testimony was

“convenient.” The comments made during questioning may have been argumentative, but

there was no blatant expression of a personal belief in Mr. McGovern’s guilt. An

objection and request for curative instruction could have cleared any possible confusion.

Appellate relief is therefore unwarranted.

       Third, Mr. McGovern claims the State trivialized its burden of proof by referring

to the principle of Occam’s Razor in opening and summation. See State v. Lindsay,

180 Wn.2d 423, 434, 326 P.3d 125 (2014) (noting misconduct for prosecutor to misstate

burden of proof). The prosecutor described Occam’s Razor in opening as follows:

       [T]here is a principle that is present in physics, biology, religion and even
       the court system. It’s called Occam’s Razor. You may not know the name
       Occam’s Razor but the principle stands for the idea that the simplest
       explanation to a problem is generally the right one. I’m going to ask that
       you keep Occam’s Razor in mind as you listen and evaluate the testimony
       that’s going to be presented during the course of this trial.

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No. 36328-7-III
State v. McGovern



RP at 182. The prosecutor asked the jury to “apply Occam’s Razor” to the facts of the

case. Id. at 185. In summation, the prosecutor asked the jurors to keep the principle in

mind during deliberations as a “mantra.” Id. at 390.

       In context, the prosecutor’s comments about Occam’s Razor amounted to an

argument about how to assess circumstantial evidence, not the burden of proof. The

prosecutor’s point was that the simplest explanation for the circumstantial evidence

pointing to Mr. McGovern’s guilt was that Mr. McGovern in fact stole the money. This

perspective contrasted with Mr. McGovern’s theory of the case, which was that he was

the victim of an unfortunate combination of circumstances, such as isolated access to the

case, dropping the money, and large cash deposits into his bank. While the prosecutor

should not have engaged in argument during opening statement, doing so did not amount

to improper burden shifting. To the extent Mr. McGovern believed there was a danger of

the jury misunderstanding the Occam’s Razor analogy, an objection and curative

instruction would have adequately addressed the issue.

       Finally, Mr. McGovern claims the prosecutor improperly shifted the burden of

proof by questioning Mr. McGovern in cross-examination about how he would have

stolen from Walmart. See State v. Sundberg, 185 Wn.2d 147, 153, 370 P.3d 1 (2016)

(noting misconduct to shift burden of proof to defense). The problem for Mr. McGovern

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State v. McGovern


is that he objected on the basis of relevance, not misconduct or burden shifting. See

Powell, 166 Wn.2d at 82-83 (Error preservation requires the defendant cite the same basis

for objection at trial and appeal.). Given Mr. McGovern’s admission to law enforcement

that he had thought about stealing from Walmart, the trial court correctly deemed the

prosecutor’s question relevant. Had Mr. McGovern also objected the State was engaged

in burden shifting, the trial court could have taken appropriate responsive action. Mr.

McGovern’s unpreserved claim of misconduct is not a basis for reversal on appeal.

3. Sentencing error—LFOs

       Mr. McGovern argues the trial court should not have imposed waivable LFOs

($200 criminal filing fee, $50 booking fee, and $250 appointed attorney fee) because it

lacked complete information regarding his finances. See RCW 10.01.160(3); RCW

36.18.020(2)(h). As Mr. McGovern recognizes, the current record does not establish

whether he meets the pertinent definition of indigence. See RCW 10.101.010(3)(a)-(c).

Given this circumstance, remand for reconsideration of waivable LFOs is appropriate. On

remand, the trial court shall ensure any nonrestitution LFOs are not assessed interest,

pursuant to RCW 10.82.090(1). LAWS OF 2018, ch. 269, § 1.




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State v. McGovern


                                   CONCLUSION

      The judgment of conviction is affirmed. This matter is remanded for

reconsideration of LFOs.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

                                         _________________________________
                                         Pennell, C.J.

WE CONCUR:



______________________________
Korsmo, J.


______________________________
Fearing, J.




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