                                                                COURT OF APi-ALS C


                                                                2013l:;a I!   ,';; 9^9

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                No. 67844-2-1
                     Respondent,
                                                DIVISION ONE

ROBERTO SANCHEZ-RODRIGUEZ,                      UNPUBLISHED OPINION
a/k/a ROBERT CARLOS SANCHEZ,
                                                FILED: March 11, 2013
                    Appellant.


       Leach, C.J. — Sanchez-Rodriguez appeals his convictions for two counts

of assault. He claims that the court abused its discretion in admitting prior threat

evidence, a witness impermissibly commented on his guilt, and the court

impermissibly commented on the evidence. We disagree and affirm.

                                      FACTS


       Based on allegations that Sanchez-Rodriguez threatened his ex-wife,

Jewell Jefferson, and her boyfriend, Derrick Sampson, with a pickaxe, the State

charged him with two counts of second degree assault.

      Before trial, the State moved to admit evidence that Sanchez-Rodriguez

had threatened to kill Jefferson in an earlier incident. Over defense objections,

the trial court admitted the evidence under ER 404(b) to show that Jefferson

reasonably feared the charged threat would be carried out.

      At trial, the evidence established that Sanchez-Rodriguez and Jefferson

were married ten years, had three children, and divorced in September 2010.
No. 67844-2-1 / 2




        In late March 2011, Jefferson decided to spend a week in Vancouver,

B.C., with her boyfriend, Derrick Sampson.      Sanchez-Rodriguez asked if he

could stay at Jefferson's home with their children while she was gone. Jefferson

said he could, but only if he refrained from drinking around the children. While

Jefferson was in Canada, Sanchez-Rodriguez texted and called her repeatedly

and twice texted "no boyfriends."

        On April 1, 2011, Sampson and Jefferson were on their way home when

Jefferson's daughter called. Jefferson learned that Sanchez-Rodriguez had been

drinking, was driving her truck, and was headed to a nearby casino. Sampson

and Jefferson drove to the casino to look for her truck. As they parked in the

casino parking lot, Sanchez-Rodriguez drove up and parked directly behind

them.


        Jefferson got out and told Sanchez-Rodriguez that she wanted her truck

back and accused him of drinking. Sanchez-Rodriguez smelled of alcohol and

looked intoxicated. When Jefferson told him she was not leaving the truck with

him and would drive him home, Sanchez-Rodriguez became angry and yelled at

her. He eventually got in the truck with Jefferson and slammed the door. They

then followed Sampson's vehicle to Jefferson's home.

        According to Jefferson, Sanchez-Rodriguez argued with her during the

drive and repeatedly told her that she did not need a boyfriend. At one point, he

slapped her hard on the back.
No. 67844-2-1 / 3




         This argument escalated as they pulled into Jefferson's driveway.

Sanchez-Rodriguez said he had found a job and asked if he could move in with

her and the children. When Jefferson said no, he punched her on the left side of

the face with his fist.


         Jefferson said she was calling the police and jumped out of the truck. As

she reached for her cell phone, Sanchez-Rodriguez told her not to call and

grabbed a pickaxe that was sitting nearby. He raised it above his shoulders with

both hands and started walking toward her. Jefferson testified that she thought

he was going to kill her because he had threatened to kill her before.

         Sampson arrived shortly after Jefferson and heard her tell Sanchez-

Rodriguez,     "No, don't do this."     Sanchez-Rodriguez repeated, "No, no

boyfriends." He quickly reached Jefferson. She stuck her head inside the truck

for protection. Sanchez-Rodriguez then shoved her hard in the back with the

pickaxe.

         Sampson said, "That's enough now." Sanchez-Rodriguez turned toward

Sampson and, holding the pickaxe up with both hands, said, "This is what you

want."     Sampson was afraid that Sanchez-Rodriguez was going to swing the

pickaxe at him.

         According to Jefferson, Sanchez-Rodriguez walked fast towards Sampson

with the axe raised.      When Sanchez-Rodriguez made a downward movement

with the axe, Sampson caught it. Sampson gained control of the pickaxe and
No. 67844-2-1 / 4




threw it out of the way. Sanchez-Rodriguez then hit Sampson with his fist, and

the men fought. During the fight, Sanchez-Rodriguez hit Sampson in the mouth,

causing his lip to bleed. The men stopped fighting when Jefferson told them she

had called the police.

         Whatcom County Sherriff's Deputy Rod Cadman arrived and spoke with

Jefferson and Sampson.      Jefferson was upset, shaking, and on the verge of

tears.     Neither Jefferson nor Sampson appeared to have been drinking.

Sanchez-Rodriguez, on the other hand, smelled strongly of alcohol, had

bloodshot, watery eyes, and swayed back and forth while talking to Cadman.

         After waiving his Miranda1 rights, Sanchez-Rodriguez told Cadman that

Jefferson yelled at him on the drive from the casino and started hitting him when

they arrived at the house. When he got out of the truck, Sampson ran over and

started hitting and kicking him. He then grabbed the pickaxe and swung it in self-

defense. He did not know why Jefferson and Sampson attacked him. He said

nothing to Cadman about Jefferson threatening to cut him off from his children.

         Deputy Cadman also made the following observation about Sanchez-

Rodriguez's demeanor:

         [PROSECUTOR]: Other than the symptoms of alcohol consumption
         that you described before, how would you characterize the
         Defendant's demeanor when you went and talked to him?



         1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
No. 67844-2-1 / 5



       [WITNESS]: He was surprisingly calm.

       [PROSECUTOR]: Why do you say surprisingly?

       [WITNESS]: Well, given ... he had just described that he had
       been . . . attacked, kicked and punched, you know, by two other
       people, and he described an attack that was violent enough where
       he picked up a pickaxe to defend himself. Yet in talking to him, I
       would expect him to be upset over something like that, and he was
       surprisingly calm.

       [PROSECUTOR]: Did he remain calm as you took him to jail?

       [WITNESS]: Yes.

       Sanchez-Rodriguez testified that he had memory problems stemming from

a head injury he suffered in a car accident in 2006. He denied drinking alcohol

before the incident and denied hitting or slapping Jefferson.     Contrary to his

statements to Deputy Cadman, he testified that Jefferson was not yelling during

the ride to the house and that they did not fight about the truck.    Instead, he

testified that Jefferson told him she was going to take the children to Canada and

that she was going to call the police. When he asked why she would call the

police, she said she did not want him to see the children. He claimed that she

said this repeatedly.

       After they got out of the truck, Jefferson pushed him. Sampson then came

from behind the truck, and they started fighting.   Sanchez-Rodriguez could not

say who started the fight. He remembered getting struck with something and

trying to get up from the ground. He did not remember if he hit Sampson. He
No. 67844-2-1 / 6




testified that his memory was not completely clear as to what happened that

night.

         A jury convicted Sanchez-Rodriguez as charged. He appeals.

                                     DECISION


         Sanchez-Rodriguez first contends the trial court abused its discretion

under ER 404(b) in admitting his prior threat to kill Jefferson.2 We disagree.

         ER 404(b) prohibits the admission of "[e]vidence of other crimes, wrongs,

or acts... to prove the character of a person in order to show action in

conformity therewith." Such evidence is admissible for other purposes, however,

if it is relevant to a material issue.3 In this case, the State's assault theory was

that Sanchez-Rodriguez put Jefferson and Sampson in reasonable apprehension

and imminent fear of bodily injury when he raised the pickaxe in a threatening

manner.       The trial court admitted Sanchez-Rodriguez's prior threat "to

demonstrate [Jefferson's] state of mind, her reasonable fear." This was a proper

basis to admit the evidence.4




       2 We review a trial court's admission of evidence for an abuse of
discretion. State v. Maqers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).
         3 ER 404(b); State v. Coe, 101 Wn.2d 772, 777, 684 P.2d 668 (1984).
         4 State v. Barraqan, 102 Wn. App. 754, 759, 9 P.3d 942 (2000) (victim's
knowledge of prior violent acts was admissible to show that victim reasonably
feared defendant would carry out threats); State v. Ragin, 94 Wn. App. 407, 411-
12, 972 P.2d 519 (1999) (defendant's prior violent acts admissible to
demonstrate reasonableness of victim's fear following defendant's threats).
No. 67844-2-1 / 7




       Sanchez-Rodriguez contends, however, that the trial court abused its

discretion because it relied on and misinterpreted the pluarlity decision in State v.

Magers.5 He argues that only four justices approved the use of prior misconduct

evidence to show reasonable fear of bodily injury and that the concurring justices

rejected that holding. This argument is flawed in several respects. First, the trial

court expressly distinguished Magers and relied instead on "other prior cases."6

Second, we recently rejected Sanchez-Rodriguez's reading of the Magers

concurrence, holding that the concurring justices "did not disagree with the

proposition in the lead opinion that admission of evidence of the victim's state of

mind would be proper under the right circumstances.         Rather, they disagreed

with that opinion's application of that proposition to the facts of that case."7 We

ultimately upheld the admission of ER 404(b) evidence "to prove [the victim's]

state of mind, a necessary element for the assault charge."8 We adhere to our

decision in State v. Johnson.9

       Sanchez-Rodriguez next contends Deputy Cadman's testimony that he

was "surprisingly calm" was an impermissible opinion on guilt that denied him a



      5 164 Wn.2d 174, 189 P.3d 126 (2008).
      6See Barragan. 102 Wn. App. at 759; Ragin. 94 Wn. App. at 411-12.
      7State v. Johnson,    Wn. App.     , 289 P.3d 662, 667 (2012).
       8 Johnson, 289 P.3d at 666.
       9     Wn. App.        , 289 P. 3d 662 (2012). Given our conclusion, we
need not reach the State's alternative arguments that the prior threat evidence
was also admissible to rebut Sanchez-Rodriguez's self-defense claim and to
assess Jefferson's credibility.
No. 67844-2-1 / 8




fair trial. He concedes this contention is raised for the first time on appeal. He

argues, however, that the testimony was manifest constitutional error and

therefore reviewable under RAP 2.5(a). Alternatively, he argues that his counsel

was ineffective for failing to object to the testimony below.       There was no

manifest error or ineffective assistance of counsel.


       A witness may not offer an opinion regarding the defendant's guilt or

veracity because such testimony invades the province of the jury.10 Opinion

testimony from a police officer raises additional concerns because "an officer's

testimony often carries a special aura of reliability."11 But opinion testimony that

is based on inferences from the evidence, does not comment directly on the

defendant's guilt or veracity, and is otherwise helpful to the jury, does not

generally constitute an opinion on guilt.12

       Here, Deputy Cadman's statement that he was "surprised" by Sanchez-

Rodriguez's calm demeanor was not a direct comment on his guilt or veracity,

was based on inferences from the evidence, and was arguably helpful to the jury

given the nature of the charges and Sanchez-Rodriguez's claim of self-defense.


       10 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007); State v.
Rafav, 168 Wn. App. 734, 805, 285 P.3d 83 (2012), petition for review filed, No.
87802-1 (Wash. Aug. 27, 2012).
       11 Kirkman, 159 Wn.2d at 928.
       12 Rafav, 168 Wn. App. at 806; City of Seattle v. Heatlev, 70 Wn. App.
573, 578, 854 P.2d 658 (1993). In evaluating alleged opinion testimony, courts
may consider the type of witness, the specific nature of the testimony, the nature
of the charges, the type of defense, and the other evidence before the trier of
fact. State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008).

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No. 67844-2-1 / 9




Washington courts have repeatedly found comparable comments admissible

when, as here, they were based on factual observations that supported the

witness's conclusion.13

      Sanchez-Rodriguez's reliance on State v. Haga14 is misplaced. The Haga

court held it was error to admit an ambulance driver's opinion that the

defendant's calm reaction to his wife's death was "unusual."15 But in Haga, the

State attempted to qualify the witness, an ambulance driver, as an expert on the

bereavement response. Here, the State did not attempt to cast Deputy Cadman

as an expert of any kind. Haga is thus inapposite.16




       13 See, e.g., State v. Stenson, 132 Wn.2d 668, 724, 940 P.2d 1239 (1997)
(paramedic's testimony that he was "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); Rafav, 168 Wn. App. at 807-08 (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").
       14 8 Wn. App. 481, 507 P.2d 159 (1973).
       15 Haga, 8 Wn. App. at 490-92.
       16 See Allen, 50 Wn. App. at 416-19 (holding that officer's testimony
regarding defendant's reaction to her husband's death was properly admitted and
distinguishing Haga on ground that ambulance driver in that case purported to
testify as an expert on bereavement); Stenson, 132 Wn.2d at 722-24
(paramedic's surprise that defendant was victim's husband was admissible and
was distinguishable from Haga because paramedic was not testifying as an
expert and was not testifying based on assumptions that were unsupported by
his direct observation).

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No. 67844-2-1/10




        In short, admission of Detective Cadman's testimony was not error, let

alone manifest constitutional error, and defense counsel was not ineffective for

failing to object to it.

        Sanchez-Rodriguez also contends the court made several impermissible

comments on the evidence. Again, we disagree.

        Under article 4, section 16 of the Washington Constitution, judges are

prohibited from conveying to the jury their personal attitudes toward the merits of

the case or instructing the jury that facts have been established as a matter of

law.17 A judge's comment violates this provision only if the judge's personal
attitudes are "'reasonably inferable from the nature or manner of the court's

statements.'"18

        Sanchez-Rodriguez contends the court commented on the evidence when

it orally instructed the jury as follows:

       [Y]ou may hear testimony from this witness about prior incidents
       between her and the Defendant. I'm allowing this evidence, but
       you may consider it only for the purpose of evaluating her state of
        mind, the victim's state of mind.          You must not consider the
       evidence for any other purpose.

According to Sanchez-Rodriguez, the court's reference to the "victim's" state of

mind revealed its belief that he was guilty. This inference cannot reasonably be




        17 State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997).
        18 State v. Elmore, 139 Wn.2d 250, 276, 985 P.2d 289 (1999) (quoting
State v. Carothers, 84 Wn.2d 256, 267, 525 P.2d 731 (1974)).

                                            -10-
No. 67844-2-1/11




drawn from the court's single use of the word "victim's."19 And even if such an

inference could be drawn, the court's single, fleeting reference would, in the

context of the entire trial and the court's instructions, be harmless beyond a

reasonable doubt.20

       Sanchez-Rodriguez also contends the court commented on the evidence

during the following portion of closing arguments:

       [PROSECUTOR]: Now, what else do we know? Counsel talked
       about concussions and head injury. There's been no medical
       evidence in the case at all. All we have for a story about the fact,
       about the Defendant's memory loss is, is him—

       [DEFENSE COUNSEL]:           Objection. That mischaracterizes the
       testimony.

       THE COURT: I don't believe so.

       [DEFENSE COUNSEL]: Jewell Jefferson specifically stated that he
       suffered from a memory loss as a result of the accident.

       THE COURT: The jury has heard the testimony.

(Emphasis added.) The emphasized remark did not comment on the evidence.

Trial courts have the right to give reasons for their rulings on objections, and


       19 See State v. Alger, 31 Wn. App. 244, 248-49, 640 P.2d 44 (1982)
(noting that "use of the term 'victim' has ordinarily been held not to convey to the
jury the court's personal opinion of the case").
       20 See Alger. 31 Wn. App. at 249 (single reference to "the victim" by the
trial judge did not prejudice the defendant's right to a fair trial). The trial court
instructed the jury orally and in writing that they were the sole judges of
credibility, that the law prohibited the court from commenting on the evidence in
any way, that the court would not intentionally comment on the evidence, and
that the jury must completely disregard any remark that appeared to be a
comment on the evidence. We presume the jury follows the trial court's
instructions. State v. Sivins, 138 Wn. App. 52, 61, 155 P.3d 982 (2007).

                                       -11 -
No. 67844-2-1/12




such reasons will not be treated as comments on the evidence so long as they

do not reveal the trial court's attitude toward the evidence.21 The trial court in this

case merely conveyed its memory of the testimony and then indicated that the

matterwas for the jury to decide. This was proper.22

       Sanchez-Rodriguez contends the court also commented on the evidence

by making its disagreement with the defense apparent during the following

exchange:

       [DEFENSE COUNSEL]: [A]nd when Jewell Jefferson testified,
       there was some, a lot of emotion at different points in her
       testimony, but the most emotional she got wasn't when she was
       recounting the incident, wasn't when she was talking about how
       afraid she was that he was going to kill her because he had that
       axe. It was when she was confronted with her lies.         That's when
       she broke down.


       [PROSECUTOR]: Objection. That's improper argument to use that
       particular word.

       THE COURT: Inconsistencies would be a better term.

       [DEFENSE COUNSEL]:             Your     Honor,   I would    submit it's
       appropriate argument.



       21 See State v. Pastrana, 94 Wn. App. 463, 480, 972 P.2d 557 (1999).
       22 See State v. Cernv, 78 Wn.2d 845, 855-56, 480 P.2d 199 (1971) (no
comment on the evidence when, in response to objections, court said, '"I think
the chain of evidence has been established'"); State v. Swan. 114 Wn.2d 613,
657-58, 790 P.2d 610 (1990) (ruling that court would '"accept [proposed expert]
as an expert on that subject'" was not comment on the evidence because it
offered no opinion on credibility, sufficiency, etc., of expert's testimony); State v.
Nesteby, 17 Wn. App. 18, 22, 560 P.2d 364 (1977) (ruling that "[s]he hasn't
testified to that. I don't want to comment on the evidence; it's up to the jury to
remember" was not comment on the evidence; court merely corrected counsel's
recollection of testimony and added that it was up to jury to remember).

                                        -12-
No. 67844-2-1/13



       THE COURT: The jury will disregard that.

       [DEFENSE COUNSEL]: You will decide if it was a lie, whatever, if
       she was confronted with her glaring omissions, when she was
       confronted with her inconsistencies, that's when she broke down.

(Emphasis added.)      Read in context, this remark was about appropriate or

inappropriate language in closing argument and would not reasonably be

understood by the jury as a comment on whether Jefferson lied. This conclusion

is supported by the fact that defense counsel immediately proceeded to argue,

without objection or comment, that the jury would decide "if it was a lie."

       Finally, Sanchez-Rodriguez claims the court commented on the evidence

during the following portion of the prosecutor's rebuttal argument:

       [PROSECUTOR]: I would also ask you to, yes, please listen to
       Deputy Cadman. Trust Deputy Cadman. Deputy Cadman said this
       man's   behavior   was   not   consistent   with   what   he   said   had
       happened.
               Counsel—


       [DEFENSE         COUNSEL]:                Objection.       That's—that
       mischaracterizations [sic] the testimony.

       THE COURT: I think it's what the deputy said.

       [DEFENSE COUNSEL]: Is the Court saying that's what the deputy
       said?

       THE COURT: I said it's an argument that can be made based on
       what the deputy said.

       [DEFENSE COUNSEL]: I maintain my objection.

(Emphasis added.) Again, when read in context, the challenged remark was not

a comment on the evidence.        The court's initial remark merely indicated the



                                         13
No. 67844-2-1 /14




court's memory of the testimony. It did not comment on the merits of the case or

the veracity of a witness. To the extent there could be any impropriety in the

initial remark, the court and counsel clarified that the court was only saying that

the challenged argument was the prosecutor's interpretation of the deputy's

testimony. In addition, any comment on the evidence was cured by the court's

instructions.23

       Given our conclusion that Sanchez-Rodriguez has not established error,

his claim of cumulative error fails as well.


       Affirmed.


                                                   <uui^fii c. y
WE CONCUR:




       23 See Alger, 31 Wn. App. at 249; Silvins, 138 Wn. App. at 61; Elmore,
139 Wn.2d at 276 (any comment on the evidence was cured by instruction to
disregard same); Egede-Nissen v. Crystal Mountain. Inc., 93 Wn.2d 127, 141,
606 P.2d 1214 (1980) (isolated judicial comment "may be cured by an
instruction").

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