      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                        c/>t:


STATE OF WASHINGTON,                       )
                                                                                CZ
                                                  DIVISION ONE                  CTJ

                     Respondent,           ]                                     1

                                                  No. 72934-9-1
              v.                           ]
                                                                                V?
WILLIAM RICHARD RODGERS,                          UNPUBLISHED OPINION           en



                     Appellant.            i      FILED: August 1     2016



       Dwyer, J. —William Rodgers was charged and convicted of the

premeditated murder of his wife. On appeal, he contends that several witnesses,
including two of his children, his close friend, and his mistress, were permitted to
give improper opinion testimony as to his guilt. He also asserts that his attorney
was ineffective for failing to object to certain of this testimony. In a statement of

additional grounds, Rodgers also contends that his Sixth Amendment right to
confrontation was violated because the trial court authenticated certain evidence

against him based on a business records certification letter, and that his counsel
was ineffective for failing to seek jury instructions on lesser or inferior-degree

offenses. Finding no error, we affirm.
No. 72934-9-1/2


                                                I


         William Rodgers was married to Sheri Rodgers. Together, they had three

children, Nicholas, Natasha, and Jeremiah.1

         In 2011, Rodgers began having an affair with a coworker named Meighan

Nichols. Rodgers asked his friend, Mark Thompson, to obtain a second

telephone for him so that he could keep in contact with Nichols without Sheri

finding out. Thompson reluctantly agreed. Rodgers told some friends that he

was going through marital difficulties but intended to repair his marriage with

Sheri.

         Rodgers' relationship with his children and Sheri became strained when

they learned about the affair. Friends described Rodgers as distracted and

withdrawn during this time. Rodgers' friendships suffered as a result. Friends,

family, and coworkers noticed that Sheri began losing weight and had thinning

hair. Rodgers and Sheri began sleeping in separate bedrooms.

         Around this same time, William West met Rodgers and Sheri online. The

three of them met twice for sexual intercourse. West found Rodgers "intense"

and decided not to meet the two of them anymore. Encouraged by Rodgers,

Sheri and West continued a physical relationship and maintained contact via

e-mail and text messages.

         In the fall of 2011, Rodgers went to his family physician, Dr. Roger Estep,

in "emotional turmoil." Rodgers reported having nightmares, difficulty sleeping,

depression, and anxiety. Rodgers explained to Estep that he had suffered


         1Except William, the members of the Rodgers family are referred to by their first names
to avoid confusion.
No. 72934-9-1/3


sexual abuse from his father as a child and had been traumatized by his military

service. Estep diagnosed Rodgers with posttraumatic stress disorder (PTSD).

Estep prescribed Rodgers a sleep aid and anxiety and nightmare reducing

medication.

      Beginning in October 2011, Rodgers also began visiting mental health

counselor Leanne Haywood. Haywood diagnosed Rodgers with PTSD and

depression. Rodgers told Haywood that he was cutting himself as a way to

relieve his emotional pain.

       On May 27, 2012, Rodgers and Sheri went to Nate and Jonna Dunham's

house for dinner. Nothing unusual happened during the dinner. Nate Dunham

opined that Rodgers and Sheri "were happy." Rodgers had plans the following
day to pick up a barbeque with his friend, Tim Livingston. Sheri had plans to

meet a friend at 9:00 a.m. for coffee.

       But the coffee date never happened. Instead, on the morning of May 28,

2012, Rodgers called Livingston "very frantic," and said that Sheri had fallen and
was unresponsive. Livingston went to Rodgers' house and found Rodgers
"distraught, frankly, agitated." Sheri was lying on the stairs with her feet pointed
downward. She was not breathing. Rodgers said he had not performed CPR

because he did not want to hurt her. Livingston noticed a small bruise on the left

side of Sheri's neck. Rodgers had fresh scratches on his face and head.

Rodgers told Livingston that the family dog had scratched him.
       Sheri's glasses were on the stairs. A pink scuba tankwas at the bottom of
the stairs. There was a pink mark on the wall next to the stairs. An "irregular



                                          -3-
No. 72934-9-1/4



shaped" hole was in the drywall near the fourth step. Screws were missing from

the center of the handrail on the steps. Sections of the handrail were also loose.

       Shortly before emergency responders arrived, Rodgers' next door

neighbor, Jan Thorton, opened her window. Thorton heard someone at the front

of Rodgers' house sob, and say, "I didn't mean to hurt her."

       Rodgers was hyperventilating when emergency responders arrived at the

house. Medics noticed bruising on Sheri's neck and left eye. Rodgers had

scratches on his face and head. Paramedic Yvonne North and Fire Battalion

Chief Mike Voss observed Rodgers clawing at, and rubbing gravel on, his face

and head. Voss opined that Rodgers was trying to cover up combat wounds.

       Other friends arrived at Rodgers' house in the hours after the incident.

Rodgers told them that he was helping Sheri move items the day of the incident
and that Sheri was at the bottom of the stairs when he returned after temporarily

leaving the room. Rodgers believed that Sheri had fallen down the stairs.
Rodgers told Natasha and friends that he had been scratched by the dog.
       Rodgers and Natasha began making funeral arrangements the same day.
Rex Watt, the funeral director who arranged Sheri's disposition, met with

Rodgers a few days after Sheri's death. Watt noted that Rodgers had fresh
scratches on his face and head. Rodgers expressed a desire to cremate Sheri's

remains. Rodgers also asked about the possibility of arranging a viewing so that
his two sons could see Sheri. Watt had to determine whether the body was

"viewable." After the embalmer suggested that Sheri's body not be viewed, Watt

looked at it himself. Watt observed bruising on her head, eyes, and cheeks.
No. 72934-9-1/5


When Watt told Rodgers that a viewing would not be a good idea, Rodgers

asked why Sheri did not appear black and blue at home. Rodgers also asked

whether there was a mark on Sheri's neck. In response, Watt looked at Sheri's

neck, where he observed what appeared to be a handprint. Watt later shared

this information with the police.

       Rodgers met with police and also explained to them that he was helping

Sheri move items on the day of the incident. Sheri was at the bottom of the stairs

when Rodgers returned after temporarily leaving the room. Police obtained a

DNA sample from Rodgers and permission from him to search the house.

       An autopsy was done on Sheri the day after the incident. Forensic

pathologist Daniel Selove opined that Sheri had died ofstrangulation. Sheri had
marks on her front left neck and a fractured larynx. Petechia2 was also observed

in Sheri's upper right eye. Selove believed these injuries to be inconsistent with
those that a person would suffer from falling down the stairs. Selove ruled out

positional asphyxiation as a possible cause of death.
       Selove also opined that Sheri suffered non-deadly injuries consistent with

falling down the stairs. Selove opined that injuries to Sheri's right hand, wrist,
and forearm were consistent with defensive wounds. Police concluded that

blood underneath one of Sheri's right fingernails matched Rodgers' DNA profile

and the match was not expected to occur more frequently than one in "58 six

trillion." Testing of Sheri's left hand showed the presence of male DNA but the
amount was insufficient for testing. There was no physical damage to Sheri's



         Colored spots caused by bleeding into the skin.
No. 72934-9-1/6



fingernails.

       Police took nail clippings from Rodgers' dog three days after the incident.

Testing revealed no blood on the dog nail clippings.

       Detective Jared Ely seized thumb drives and memory disks from Rodgers'

house. Ely also seized a laptop computer from a dresser drawer in the master

bedroom. He observed the same laptop in the kitchen of the house on the day of

the incident. The name of the laptop was "Bill PC" and the laptop software was

registered to "Bill."

       The laptop contained Google Internet searches and e-mails to Nichols.

Time stamps on the e-mails to Nichols matched time stamps indicating when

Rodgers' username was logged in on the computer. A website that included "25

methods for killing with your bare hands" was accessed on May 5, 2012. Later

activity at the same website included "ten tips to commit the perfect crime." This
website was accessed for about seven minutes. Ely did not have the full Internet

history for the laptop.

        Specific searches were not performed for "ten tips to commit the perfect

crime," and "25 methods for killing with your bare hands." Rather, Internet

"cookies" for the websites were placed on the laptop. Ely opined that the

"cookies" would not exist if the website had not actually been clicked on.

        Between May 20 and 27, 2012, Internet searches were conducted for

"how to break a [chicken's] neck," "how dangerous is it to fall down stairs," and "is
it really possible to break someone's neck by twisting it with my hands like in the
movies?" Ely opined that an Internet search for "how to break a neck" was
No. 72934-9-1/7


completed. Such a search was not contained in the laptop's Internet search

history and Ely could not therefore determine an exact time frame in which such

a search was conducted.

       Information security officer, Leslie Trout, also examined Rodgers' laptop

and disputed some of Ely's conclusions. Like Ely, Trout concluded that specific

searches were not performed for "ten tips to commit the perfect crime," and "25

methods for killing with your bare hands." Rather, Internet "cookies" for the

websites were placed on the laptop. Unlike Ely, however, Trout opined that the

"cookies" would be placed on the laptop even if the website link was not actually

clicked on. Trout found no evidence that a search was completed for "top ten

prison survival tips."

       Trout opined that a search was completed for "how to break a 'N.'"
Google's function auto-completed "N" to include the word neck, and a link
containing that search string was then clicked on. Trout concluded, "there wasn't
sufficient evidence to show that the user searched for how to break a neck per se

as much as it was auto-completed or how dangerous it is to fall down the stairs,

but there were search strings that were part ofthat." Trout found no data files on
the laptop that corroborated thateither ofthe searches were clicked on and
viewed.

       There was also evidence of e-mails exchanged between Rodgers and

Nichols. In one e-mail, Rodgers mentioned wanting to hit Sheri in the face. In
another e-mail, Rodgers told Nichols he would give Sheri sleeping pills to avoid
being sexually intimate with her. In late May 2012, Rodgers e-mailed Nichols
No. 72934-9-1/8


describing how upset he was that Sheri blamed him for the breakdown of his

family's relationship. Shortly thereafter, someone allegedly conducted the

Internet search for, "is it really possible to break someone's neck by twisting it

with my hands like in the movies?"

       About two and a half years after Sheri's death, Rodgers was interviewed

separately by psychologist, Delton Young, and psychiatrist, Mark McClung. In

these interviews, Rodgers gave a dramatically different account of the

circumstances of Sheri's death than that which he had initially given to friends,

family, and the police. Young and McClung came to different conclusions about
Rodgers' account based on their interviews with him.
       Young diagnosed Rodgers with PTSD, anxiety, and major depression.
Rodgers described to Young the events leading up to the incident. Rodgers
explained that he was roughhousing with the dog and pulling on Sheri's bathrobe
in an effort to get her to play. Sheri refused because she had a meeting. The
dog then scratched Rodgers and Sheri. In response, Sheri slapped Rodgers,
which triggered a "dissociative flashback." Because of the "dissociative
flashback," Rodgers believed he was being brutalized by his father and fighting
for his life. Rodgers could not recall what happened to Sheri but, when his
mental functioning cleared, he saw her lying motionless at the bottom ofthe
stairs. Rodgers concluded that he must have strangled Sheri.
       Rodgers denied to Young that he had completed the alleged Internet
searches about killing someone with bare hands. Rodgers told Young that he
 made up the story about helping Sheri move equipment in an effort to delay his



                                          -8-
No. 72934-9-1/9


arrest. Rodgers explained that he intended to use the extra time to get his

children home, say goodbye, and then commit suicide.

      Young opined that Rodgers' account of the incident was consistent with

what would occur in a "severe violent dissociative flashback." Young opined that,

if Rodgers had indeed experienced a dissociative flashback, his ability to form

the requisite intent and understand the nature, quality, and wrongfulness of his

alleged acts would have been "severely impaired." Young noted that he would
not be surprised if Rodgers had engaged in self-harming behavior after the

incident ended.

       McClung also diagnosed Rodgers with PTSD and depression. In addition,
McClung diagnosed Rodgers with antisocial and borderline personality trait
disorder. Rodgers also described to McClung the events leading up to the
incident. Rodgers reported that after coming up on Sheri with his forearm, hefell
into a fetal position, and things became "foggy" before gradually clearing.
Rodgers was uncertain how much time had passed.
       Rodgers explained to McClung that he was engaging in self-harm when
he rubbed gravel on his face and head. McClung questioned whether Rodgers
intended to hide injuries by rubbing gravel on his face and head since his
behavior was inconsistent with his normal self-harm habit of cutting himself.

McClung opined that Rodgers' level of deceit exceeded even what he would
expect from someone involved in an extramarital affair. McClung also believed
that Rodgers' act of obtaining $15,000 from his mother-in-law to cover costs
associated with Sheri's burial was inconsistent with someone intending to commit
No. 72934-9-1/10


suicide.

       Unlike Young, McClung assumed that the alleged Internet searches were

conducted by Rodgers. McClung explained that the Internet searches were

significant, though not necessary, to his conclusions. McClung opined that
Rodgers' reported dissociative experience offighting back against his father was
inconsistent with the lack of any reported instances in which Rodgers had

previously acted out violently toward his father. McClung also believed there
should have been more evidence of Rodgers previously experiencing

dissociative experiences. McClung concluded that Rodgers' mental disorder did
not interfere with his ability to know the identity ofwho he was attacking and did
not render him incapable offorming the requisite intent for the incident.
       The Skagit County prosecutor charged Rodgers by amended information
with one count offirst degree premeditated murder. Ajury found Rodgers guilty
as charged. The trial court sentenced Rodgers to 320 months of imprisonment.
Rodgers timely appealed.

                                              II


           Rodgers contends that his right to a fair trial was violated. This is so, he
asserts, because improper opinion testimony on guilt was presented at his trial.

We disagree.

           Opinions on guilt are generally improper whether made directly or by
 inference. State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213 (2014).

 "Impermissible opinion testimony regarding the defendant's guilt may be
 reversible error because such evidence violates the defendant's constitutional



                                             •10-
No. 72934-9-1/11


right to a jury trial, which includes the independent determination of the facts by

the jury." Quaale, 182 Wn.2d at 199. Whether testimony is an impermissible

opinion about guilt depends upon the circumstances. State v. Cruz, 77 Wn. App.

811, 814-15, 894 P.2d 573 (1995); City of Seattle v. Heatlev. 70 Wn. App. 573,

579, 854 P.2d 658 (1993).

       In determining whether statements are impermissible opinion testimony,

the trial court will consider the circumstances of the case, including:"' (1) the type

of witness involved, (2) the specific nature of the testimony, (3) the nature of the

charges, (4) the type ofdefense, and (5) the other evidence before the trier of
fact.'" State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008) (internal

quotation marks omitted) (quoting State v. Demerv, 144 Wn.2d 753, 759, 30 P.3d
1278 (2001)). "The point is to avoid having witnesses tell the jury what result to
reach." State v. King, 135 Wn. App. 662, 673, 145 P.3d 1224 (2006).

       Adecision involving the admission ofopinion testimony lies within the
sound discretion of the trial court and will not be reversed unless abuse of

discretion is shown. Heatlev, 70 Wn. App. at 579. Discretion is abused if it is

exercised on untenable grounds or for untenable reasons. State v. VvThang,

145Wn.2d630, 642, 41 P.3d 1159(2002).

       Rodgers contends that the State presented improper opinion testimony by
Natasha, Nicholas, Thomson, and Nichols. The testimony at issue was as

follows:

       Natasha

        Prior to trial, Rodgers sought to exclude evidence that, when he told



                                         -11-
No. 72934-9-1/12


Natasha of her mother's death over the telephone, she responded, "What? Were

you guys, were you guys fighting?" and "Were, well if you guys weren't fighting,

what happened?" Natasha's statements were recorded because Rodgers was

being interviewed at the police station at the time of the call. Rodgers objected

both to the recording being played for the jury and to Natasha testifying to her

reaction upon hearing the news of her mother's death.

       Defense counsel argued that the statements were more prejudicial than

probative under ER 403 because there was no history of physical violence or

domestic violence between Rodgers and Sheri. The State maintained that

"fighting" could include arguing and that any confusion about what Natasha
meant could be dealt with on cross-examination. The trial court denied the

motion to exclude.

       Thereafter, the recording was played for the jury, and Natasha testified

that, when Rodgers told her that her mother had died in an accident, "the very,
very, very first thought that came into my gut and out of my mouth was: Were you
guys fighting?" Natasha explained that there was never physical ordomestic
violence between her parents, but there were "screaming matches." Natasha

further elaborated, "[a]nd when he told me that she fell down the stairs—and if
they were fighting like Iliterally thought that he could have just pushed her down
the stairs. Why would she slip?"

       Nicholas

       Rodgers' son, Nicholas, also testified about the first conversation that he
had with his father after his mother's death. The following exchange transpired



                                        -12-
No. 72934-9-1/13


between Nicholas and the prosecutor.

      Q: When did you find out that your mother had passed away?
      A: So I was with my unit in Korea. It was Memorial Day weekend.
      I received a Red Cross message. And the only thing it said is that I
      needed to get in touch with my family at home. I had no
      information. I finally called home. And I talked to my dad. And I
      knew immediately that—I said: Dad what happened? And he said:
      You just need to get home. So in my heart the way that he told
      me—
      Q: Hold on. He told you you needed to get home?
      A: Right
      Q: Did you ask him anything further?
      A: Iwas thinking about what was going on at home. I said: What
      happened?
      Q: Did he respond to that?
      A: No. He just said: You need to get home. Your mother has
      been in an accident. The way that he told me I knew in my gut, I
      wanted to say: Dad, what did you do? Because of his tone, Iknew
      if it truly was a car accident, a spare [sic] of the moment thing, I
      believe he would lay it all outthere for me. He wouldn't mask it in
      some way or form.

       Nicholas also described speaking with his parents by telephone the night

before Sheri's death. He testified as follows.

       Q: What did your dad say?
       A: It made me feel weird, but he laid out the entire next day to me.
       Oh, you know what we just prepaid for our new barbecue, and I'm
       going to pick it up tomorrow. I'm going to make a meal for your
       mother. And it's going to be a really nice Sunday.
       Q: Let me stop you there. You said it was weird. What about that
       was weird to you?
       A: It was the way he was telling me his schedule. That wasn't
       something that he did all the time. Like Isaid, our relationship was
       kind of strange throughout the whole year. This was out ofthe
       blue. It felt weird. At the same time I was thinking, okay, alright,
       alright. It made me feel weird. But after the fact, it still makes me
       feel weird. Because to me inside my heart it makes me feel like
       there was an agenda there ultimately; that he was trying to pick his
       alibi or something like that. That's just how it made me feel.
       No objection was made to the quoted testimony.




                                         -13-
No. 72934-9-1/14


Thompson

      Thompson was asked during direct examination if he noticed anything

about Rodgers' behavior after arriving at the house after Sheri's death:

      Q: Did you notice anything strange about how he [Rodgers] was
      acting at any point?
      A: Well, at one point he stared at me, gave me this look that made
      me doubt what had happened.
      Q: Why do you say that?
      A: It was just, I don't know how to describe it. It was a look of I
      knew in my head what did you do, Bill?
       Q: That was what you thought?
      A: That's what I thought.

       Defense counsel objected on the basis that Thompson was speculating.

The State maintained that Thompson was properly describing his own personal

reaction to Rodgers' action. The trial court overruled the objection.

       Nichols

       Finally, Nichols was asked about her telephone conversation with Rodgers
a few days after the incident. The following exchange occurred:
       Q: And what was his—was he emotional when you were talking?
       A: Yes.
       Q: What did he sound like?
       A: He sounded sad.
       Q: Did you talk about anything else?
       A: I said I asked him about the dog, and he said that he had gotten
       scratched. And I said: Bill, are you sure that's what happened?
       And he said: Yes, that Sheri was upset that he was roughhousing
       with the dog.
       Q: Why did you ask if he was sure that was what had happened?
       A: I don't know.

       No objection was made to Nichols' quoted testimony.

       After the witnesses in question concluded their testimony, defense

counsel sought to exclude future witnesses from testifying about "gut feels" that



                                        -14-
No. 72934-9-1/15


Rodgers was responsible for Sheri's death. Defense counsel noted that,

"[w]hether or not my client did anything wrong is a question reserved for the jury,

not the individual witnesses." The trial court responded, "I've kind of been

waiting for this issue to be raised. Because I had wondered—I mean to me,

depending on how it's phrased, it does invade the province of the jury," and

asked the State to articulate why such testimony was relevant.

       The State maintained that the witnesses had properly testified to "their

sensory reaction to a piece of information." It noted that many witnesses had

known Rodgers for years and were entitled to express their opinions based on

that knowledge. Nevertheless, the State offered to "do [its] best to kind of stay

away from that," as long as the defense agreed to do the same. The trial court
concurred, stating, "[c]ertainly speculation should not be encouraged." None of
the purported opinion testimony forming the basis of Rodgers' appellate claim
occurred thereafter.

       Rodgers asserts that the witness testimony highlighted above constituted
improper opinions on guilt. However, to the contrary, examining the statements
in the context of the issues remaining after Rodgers admitted that he had, in fact,

killed Sheri, it is clear that the testimony at issue did not constitute improper

opinion testimony.

       As described above, Rodgers initially denied that he had caused Sheri's

death, claiming instead that she had fallen down the stairs of her own accord.
When Rodgers subsequently admitted that he had strangled Sheri to death, he
claimed that he had acted without premeditation, while in a dissociative state.




                                         -15-
No. 72934-9-1/16


Thus, the central question in the case became Rodgers' mental state leading up

to, and at the time of, the strangulation.

       Key evidence regarding the plausibility of Rodgers' account that he had

killed Sheri while in a trauma-induced dissociative state was presented through

the testimony of Young and McClung. Each of them opined regarding the

consistency of Rodgers' ultimate account of Sheri's death with his self-reported

history of trauma and other evidence from the police investigation. But Young

and McClung's testimony was far from the only evidence presented regarding

Rodgers' state of mind leading up to the alleged crime. For example, evidence of

Rodgers' morbid Internet searches and browsing activity was presented to

support the State's theory that he had premeditated Sheri's death. The
testimony at issue also falls within the general category of evidence of Rodgers'

mental state.

       Nearly all of the testimony at issue concerned the witnesses' reactions to

Rodgers' initial denials that he was the cause of Sheri's death. Evidence that
Rodgers' preliminary attempts to explain Sheri's death, without admitting that he
strangled her, were met with disbelief or skepticism by two of his children, his
good friend, and his mistress was relevant to his motivation for later dramatically
changing his story. This evidence supports the notion that Rodgers changed his
version of events after his preplanned story was received coldly by those

personally closest to him. Further, this testimony provides an alternative account
to Rodgers' own explanation that his description of events were faulty because
they were concocted in haste and designed to give him just enough time to say



                                             -16-
No. 72934-9-1/17


goodbye to his children before killing himself. Accordingly, the testimony in

question was not improper opinion testimony but, rather, was relevant to what

was ultimately the central issue in the case—Rodgers' consciousness of guilt at

the time he strangled Sheri. See State v. Clark. 143 Wn.2d 731, 765, 24 P.3d

1006 (2001) (false information given to others considered admissible as evidence

relevant to defendant's consciousness of guilt); accord State v. Allen, 57 Wn.

App. 134, 143, 787 P.2d 566 (1990).

       Only Nicholas's testimony regarding the telephone conversation with his
father the night before his mother died requires a different explanation. Initially, it
would be curious to regard this part of Nicholas's testimony as an opinion on

guilt, given that he was describing an impression that was formed before the
crime in question was committed. Nicholas was not testifying as to whether he
thought that his father had killed his mother with premeditated intent; rather, he
was explaining how his father's behavior on a telephone call that occurred the
night before his mother's death made him feel.
       Moreover, Nicholas was testifying to an impression that was formed based
on his own observations. He recalled that he felt "weird" on the telephone call in

question because his father's behavior on that call diverged notably from his
behavior on prior calls. Washington courts have repeatedly found comparable
comments admissible when, as here, they were based on factual observations

that supported the witness's conclusion—even when those comments pertained
to impressions formed after a crime was committed. See, e.g.. State v. Stenson.
 132 Wn.2d 668, 724, 940 P.2d 1239 (1997) (paramedic's testimony that he was



                                          -17-
No. 72934-9-1/18


"surprised" that defendant was victim's husband was not improper); State v.

Craven, 69 Wn. App. 581, 585, 849 P.2d 681 (1993) (emergency room worker

properly testified that defendant's behavior was unusual); State v. Allen, 50 Wn.

App. 412, 416-19, 749 P.2d 702 (1988) (police officer properly testified that

defendant's sobbing did not look genuine or sincere); State v. Rafav. 168 Wn.

App. 734, 807-08, 285 P.3d 83 (2012) (testimony that defendant's grin "kind of

shocked" an officer could not reasonably be construed as direct comment on guilt

or veracity; rather, "the comments were primarily an attempt to describe the

defendants' demeanor").

         We reject Rodgers' contention that the witness testimony at issue

constituted improper opinion testimony on guilt.3




         3Rodgers' claim regarding the testimony of Nicholas and Nichols also fails because he
did not object to it in the trial court.
         Only a manifest constitutional error may be raised for the first time on appeal, and a
constitutional error is manifest only when the error caused actual prejudice or practical and
identifiable consequences. Statev. Kirkman, 159 Wn.2d 918, 934-35, 155 P.3d 125 (2007). Our
Supreme Court addressed a claim that unobjected to improper opinion testimony constituted
manifest constitutional error in State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008).
Therein, the court stated that, because the jury was properly instructed regarding its role and
"[t]here was no written jury inquiry or other evidence that the jury was unfairly influenced," it
"should [be] presume[d that] thejury followed the court's instructions absent evidence to the
contrary." Montgomery, 163 Wn.2d at 596. The court also noted that, "when Montgomery did
object... because the question went to the ultimate legal question, the court sustained the
objection and the detective did not answer," which indicated that "[h]ad Montgomery raised
objections [to the unobjected to opinion testimony]. . . they too would have been sustained and
curative instructions given if requested." Montgomery, 163 Wn.2d at 596. It then concluded that
the record in that case "[did] not establish actual prejudice." Montgomery, 163Wn.2d at 596.
        As in Montgomery, the jury herein was properly instructed that it was the sole judgeofthe
witnesses' credibility, and, also like in that case, when Rodgers made a timely objection to
improper opinion testimony, the trial court sustained the objection and took reasonable remedial
action. Accordingly, Rodgers cannot raise his objection to the allegedly improper opinion
testimony of Nicholas and Nichols for the first time on appeal.



                                                 -18-
No. 72934-9-1/19


                                         III


      Rodgers contends, in the alternative, that his counsel was ineffective for

failing to object to the testimony that he now alleges was improper. Because the

testimony in question was not improper, he is incorrect.

      To prevail on a claim of ineffective assistance of counsel a defendant must

demonstrate that: (1) counsel's representation was deficient, meaning it fell

below an objective standard of reasonableness based on consideration of all of
the circumstances; and (2) the defendant was prejudiced, meaning there is a

reasonable probability that the result of the proceeding would have been different
butfor the challenged conduct. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). If we decide that either prong has not been met,

we need not address the other prong. State v. Garcia. 57 Wn. App. 927, 932,

791 P.2d 244 (1990).

       As set forth above, the testimony in question did not constitute improper

opinion testimony. Therefore, his counsel was not deficient for failing to object to
its admission. Accordingly, his claim fails.

                                          IV


       Rodgers next contends that his Sixth Amendment right to confrontation
was violated when records related to his Google account were authenticated

based on a business records certification letter written by a Google employee

who did not testify. We disagree.

       In Washington, the admission of business records is generally an
       exception to the hearsay rules. [ER 803(a)(6); RCW 5.45.010,


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No. 72934-9-1/20


      .020.] But, the admission of "testimonial" hearsay evidence violates
      the confrontation clause unless the proponent shows that the
      declarant is unavailable and that the accused had a prior
      opportunity to cross-examine the declarant. [State v. Kronich, 160
      Wn.2d 893, 902, 161 P.3d 982 (2007) (citing Crawford v.
      Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d
      177 (2004)).] If evidence is not "testimonial," then no such showing
      is required. [Id, (quoting State v. Kirkpatrick, 160 Wn.2d 873, 882,
      161 P.3d 990 (2007)).]

State v. Lee, 159 Wn. App. 795, 815, 247 P.3d 470 (2011).

      We have consistently held that out-of-court statements offered for the

limited purpose of authenticating a business record or public record are
nontestimonial. See, e.g., Lee, 159 Wn. App. 795 (declaration from custodian of

business records nontestimonial); State v. Mares, 160 Wn. App. 558, 248 P.3d
140 (2011) (certificate authenticating copy ofdefendant's driver's license

nontestimonial).

       Here, the Google employee's letter was offered for the sole purpose of
authenticating the Google business records related to Rodgers' account. Thus,
Rodgers' claim of error fails.

                                        V


       Rodgers' final contention is puzzling. He avers that he was "denied his
sixth and fourteenth amendment [right] to the effective assistance of counsel,"
because "the decision to not request [a] lesser included offense instruction was

not a tactical decision." However, the record demonstrates that his counsel did
request instructions on the inferior degree crime of murder in the second degree
and the potential lesser included offenses of manslaughter in the first and second
degrees. These instructions were included in the defense's proposed



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No. 72934-9-1/21


instructions and defense counsel argued on the record for them to be included in

the court's instructions to the jury. Because the record belies Rodgers'

contention, his claim fails.

       Affirmed.                         """"^"-^


We concur:




     '•ftf fW;^i\ >




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