                                                                                           COURT      OF / I'
                                                                                                              PE ;   S
                                                                                               DIVISION II
                                                                                         20151AR -
                                                                                                      3 itH g: 35
                                                                                         S T4T 0-.,
                                                                                                             1GTU
                                                                                         BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II


 STATE OF WASHINGTON,                                                   No. 45011 -9 -II


                                  Respondent,


           v.



 STANLEY AARON GEBAROWSKI,                                       UNPUBLISHED OPINION


                                  Appellant.




          SUTTON, J. —   Stanley Aaron Gebarowski challenges his convictions and sentences for

second degree assault and third degree assault, both with a deadly weapon enhancement, arguing

that ( 1) the trial court erred in allowing the police officer to testify about the wound on the victim' s

arm; (   2) the trial court impermissibly commented on the evidence by presenting a jury instruction

that defined the knife as a deadly weapon; and ( 3) he received ineffective assistance of counsel.

We hold that ( 1) the officer' s testimony about the victim' s wound was properly admitted as lay

opinion under     ER 701; (   2) the trial court did not impermissibly comment on the evidence by

instructing the jury that the deadly weapon was a knife; and ( 3) Gebarowski fails to show that his
counsel was ineffective. We affirm.


                                                    FACTS


          Gebarowski lived with his brother Anthony Edward Abbot Williams in Vancouver,

Washington. Around 9: 30 in the evening        of   June 14, 2011, Gebarowski   was   soundproofing their
No. 45011 -9 -II



garage when he approached Williams and complained that Williams did not purchase the screws

that Gebarowski      had   asked   him to     purchase.      Gebarowski           still   had his tools in his hands: a knife


for scoring the Styrofoam sheeting             and a     block     of wood   to break the sheeting.        The conversation


escalated   into   an argument and       then a     fight.   At some point during the fight, the knife fell to the

ground.




         Hao Dang was in the room during the fight and became involved in the fight. Gebarowski,

Williams and Dang gave different accounts of how the fight started and what happened during the

fight. Williams suffered a cut on his left arm and bruising to his head.

          The State charged Gebarowski with two counts of second degree assault and two counts of

third degree assault, one of each count involving Williams and one of each count involving Dang.

All four assault charges included a deadly weapon enhancement; the State also charged one count

of misdemeanor        harassment        involving        Williams.        All counts involving Williams included a

domestic violence enhancement.


          Williams testified that he did not know he had been cut on his arm until responding Officer

Dustin Goudschaal        pointed   it   out   to   him   after   the incident.       When asked what caused the injury,

Williams testified that he thought that both his arm injury and his head injuries were caused by the

block of wood. At trial, the defense moved to prevent Officer Goudschaal from giving any opinion

about the source of Williams' wounds on the grounds that it would violate ER 701 and ER 702

rules   regarding admissibility         of expert and        lay   opinion    testimony. The trial court admitted the


officer' s opinion testimony as a lay opinion, not as expert opinion, stating " I will give [ Officer

Goudschaal] the opportunity to express a lay opinion based on his perceptions and observations,

without     any    particular   expertise      or   training       as   under [    ER] 702."        1B Verbatim Report of




                                                                   2
No. 45011 -9 -II



Proceedings ( VRP)           at    203.    Goudschaal testified that, based on his training and experience,

Williams suffered a knife wound.


          After the close of testimony, Gebarowski' s counsel asked the trial court to add language

defining the deadly weapon, " to             wit:   a   knife,"   in the deadly weapon enhancement jury instruction.

1B VRP     at    303.    The prosecutor did not object.1 The trial court' s instructions to the jury included

the language that Gebarowski requested.2

          The jury convicted Gebarowski of second degree assault domestic violence against

Williams        and of   third    degree   assault against        Dang. The jury also found, by special verdict, that

Gebarowski was armed with a deadly weapon on both counts.3 Gebarowski appeals.
                                                            ANALYSIS


                                                    I. OPINION TESTIMONY


          Gebarowski argues that the trial court erred in allowing Officer Goudschaal to opine that

Williams        suffered a   knife    wound.    He argues that the testimony did not qualify as a lay opinion



1
    Gebarowski'     s counsel stated, "       Your Honor, for both this instruction [ Count 2] and the count of
assault   in the   second     degree      charged   in Count 1, I        would ....   Your Honor, I would ask that after
the words ` a      deadly    weapon,'      that the     words ` to wit, a    knife' be   added."   1B VRP at 302, 303.


2 The trial court' s Jury Instruction 12 on second degree assault provided, in part:
          To convict the defendant of the crime of Assault in the Second Degree as charged
          in Count 1, each of the following elements of the crime must be proved beyond a
          reasonable doubt:
           1)    That on or about June 14, 2011, the defendant assaulted Anthony Edward
          Williams with a deadly weapon to wit: a knife; and
           2)           That this act occurred in the State of Washington.
Suppl. Clerk' s Papers at 90.


3 The jury also convicted Gebarowski of one count of misdemeanor harassment of Williams (with
domestic violence enhancement), but Gebarowski does not appeal his conviction for this offense.




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No. 45011 -9 -II



under ER 701. Because the record shows that the officer' s testimony was admissible as lay opinion

testimony based on firsthand impressions and observations of the victim' s wound, we disagree.

           We review a trial court' s decision to admit opinion testimony for abuse of discretion. State

v.   Rodriguez, 163 Wn.         App.    215, 231 -32, 259 P. 3d 1145 ( 2011), review denied, 173 Wn.2d 1009


 2012).      ER 701 permits testimony " in the form of opinions or inferences" that are " rationally

based      on   the   perception of    the   witness"      and "   helpful to a clear understanding of the witness'

testimony        or   the   determination       of   a   fact in issue."        ER 701.     Opinion testimony " is not


objectionable         because it   embraces an ultimate        issue to be decided     by   the trier   of   fact." ER 704.


            Gebarowski argues that Officer' s Goudschaal' s testimony, that his observation of the

victim' s arm wound was likely caused by a knife rather than by a block of wood, did not qualify

as   lay   opinion under      ER 701.    The State argues that the testimony was based on the officer' s first-

hand knowledge and that it helped the jury understand how Gebarowski wounded Williams. The

State also argues that, even if the trial court abused its discretion, any error was harmless.

            Here, the trial court admitted Officer Goudschaal' s testimony under ER 701 and based its

ruling on Goudschaal' s firsthand impressions as the responding officer, not on any particular

training     or expertise     Officer Goudschaal may have had.                  The officer testified that the cut to the


victim' s arm " appeared           to [ him]"   to be " more consistent with a cutting object than a blunt -force

object,"     and that he believed the victim' s cut was caused by a knife rather than by a block of wood.

1BVRPat229.


            In a similar case, we have held that an officer may provide opinion evidence based on his

or her first -hand knowledge that a cut mark on the victim' s throat ran from left to right. State v.

Cole, 117 Wn.          App.   870, 878, 73 P. 3d 411 ( 2003),          review   denied, 151 Wn.2d 1005 ( 2004). Much




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No. 45011 -9 -II



like in Cole, here Officer Goudschaal' s statements were a first -hand account of his impression of


the cut on Williams' arm. The officer' s testimony was based on his law enforcement experience

dealing with victims of knife wounds and wounds caused by objects such as pieces of wood.4

Although his specialized experience may have given him more than a layperson' s knowledge about

such wounds, his testimony expressed his observations about what the wound looked like and his

inferences about what may have caused the wound. See State v. Ortiz, 119 Wn.2d 294, 308 -09,

831    P. 2d 1060 ( 1992) (           tracker' s lay opinion testimony permissible based on training and

experience as a tracker).


          Even     a    witness       who      demonstrates       an   expertise "`   acquired either by education or

experience '     in a particular area may give lay opinion testimony. State v. Hernandez, 85 Wn. App.

672, 676, 935 P. 2d 623 ( 1997) (                    lay opinion testimony from police officers admissible as

circumstantial evidence of              identity     of a   drug) ( quoting State v. Hutton, 7 Wn. App. 726, 731, 502

P. 2d 1037 ( 1972)).              Witnesses may       use   inferences   and opinions   if they   are "`   rationally based on

the   perception of         the   witness '   and such testimony will be helpful to the jury. State v. Blake, 172

Wn.    App.   515, 523, 298 P. 3d 769 ( 2012) ( quoting ER 701), review denied, 177 Wn.2d 1010


 2013);    State       v.   Montgomery,         163     Wn.2d 577, 591,        183 P. 3d 267 ( 2008).            Here Officer


Goudschaal' s testimony reflected his firsthand impressions as the responding officer at the scene




4 The officer testified he had close to five years of experience as a police officer with the Vancouver
Police Department             and    over     four   years    of experience   as   a peace   officer    in Arizona.    He had
experience with "[ o] ver            fifty," " probably close to a hundred" cases involving knife wounds, both
 stabbing- type" and " cutting- type" injuries, as well as " probably twenty                           or so"   calls involving
injuries from objects made from a " piece of wood." 1B VRP at 228, 229.
No. 45011 -9 -II



and his observations of the victim' s wound. The testimony was properly admitted under ER 701

as lay opinion testimony and the trial court did not abuse its discretion.5
                                                          II. JURY INSTRUCTION 12


           Gebarowski argues that the trial court' s Jury Instruction 12 impermissibly commented on

the evidence in violation of article IV, section 16 ofthe Washington Constitution.6 He argues that

the " to    convict"   instruction,        Jury    Instruction 12, included the term "` to     wit:   a   knife, "'   which




defined the deadly weapon as a knife and removed a factual issue from the jury' s consideration.

Br.   of   Appellant   at   12 ( quoting Suppl. Clerk' s Papers          at   90). The State responds that Gebarowski


invited the error by requesting the language to which he now objects. We agree with the State.

            The State initially. proposed Jury Instruction 12 defining the elements of second degree

assault without     the     words "   to   wit:    a   knife," but Gebarowski' s counsel asked the trial court to add


this language into the instruction, and the trial court did so. 7 1B VRP at 303. State v. Momah, 167

Wn.2d 140, 153, 217 P. 3.d 321 ( 2009) ( " a                  party who sets up an error at trial cannot [ later] claim

that very action as error on               appeal. ").       Gebarowski invited the claimed error, and he is now


precluded from seeking review.




5 Gebarowski argues that Officer Goudschaal' s qualifications are inadequate to distinguish
between knife      wounds and wounds caused by a block of wood. This is not a relevant inquiry to
determine whether the officer' s testimony was admissible under ER 701.

6 " Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall
declare the law." WASH. CONST.                    art.   IV, § 16.


7 It is not an impermissible comment on the evidence to include language such as " to -wit: a knife"
in a special verdict form. State v. Akers, 88 Wn. App. 891, 898, 946 P. 2d 1222 ( 1997), aff'd, 136
Wn.2d 641, 965 P. 2d 1078 ( 1998).




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No. 45011 -9 -II




                                         III. EFFECTIVE ASSISTANCE OF COUNSEL


          In his supplemental brief, Gebarowski argues that he received ineffective assistance of

counsel when           his   counsel agreed        to define    a   deadly      weapon as a   knife.   The State responds that


the instruction was proper and, even if not proper, Gebarowski fails to show prejudice. We review


a claim of      ineffective        assistance     de   novo.    State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916

 2009).


             An appellant claiming ineffective assistance of counsel must show that counsel' s

performance        fell below        an objective standard of reasonableness, and "`                   a reasonable probability


that,   but for        counsel' s     deficient        performance,       the    outcome   of   the [ trial]   would have been


different. "' State          v.   Johnson, 180 Wn.         App. 318,       324, 327 P. 3d 704 ( 2014) ( internal quotation


marks omitted) ( quoting             State   v.   Grier, 171 Wn. 2d 17, 34, 246 P. 3d 1260 ( 2011)).             Failure to meet


either prong of this test defeats a showing of ineffective assistance of counsel. Johnson, 180 Wn.

App.    at   324. "`    If trial counsel' s conduct can be characterized as legitimate trial strategy or tactics,

it cannot serve as a basis for a claim that the defendant received ineffective assistance of counsel.'"

State   v.    Rafay,    168 Wn.       App.    734, 840, 285 P. 3d 83 ( 2012) ( internal quotation marks omitted)


 quoting State         v.    Goldberg,   123 Wn.         App.   848, 852, 99 P. 3d 924 ( 2004)).         Our review of defense


counsel' s performance is highly deferential and employs a strong presumption of reasonableness.

State   v.   Humphries, 181 Wn.2d 708, 720, 336 P. 3d 1121 ( 2014) (                          citing Strickland, 466 U.S. 668,

689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984));                       see State v. Olson, 182 Wn. App. 362, 379, 329

P. 3d 121 ( 2014).


             Gebarowski argues that he was prejudiced by his attorney' s deficient performance when

his counsel relieved the State of proving that the knife qualified as a deadly weapon. We hold that


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No: 45011 -9 -II




it was a well- reasoned trial tactic to add the language to Jury Instruction 12 defining a deadly

weapon as a       knife.    By specifying that the knife was the deadly weapon, Gebarowski' s counsel

added another element for the State to prove, thereby increasing the chances that the jury may fail

to agree that the knife, rather than the wood block, was the deadly weapon at issue, and thus

preventing the jury from reaching a verdict on the deadly weapon enhancements. As a legitimate

tactic, this "`   cannot serve as a basis for a claim that the defendant received ineffective assistance


of counsel. "'     Rafay,   168 Wn.   App.   at   840 ( internal   quotation marks omitted) (   quoting Goldberg,

123 Wn. App. at 852).

         We affirm the trial court and hold that ( 1) the officer' s testimony was admissible as lay

opinion   testimony under ER 701; ( 2) the trial court did not impermissibly comment on the evidence

by instructing the jury that the deadly weapon was a knife; and ( 3) Gebarowski fails to show that

his counsel was ineffective. We affirm.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:



       ettad
We swick, P. J.




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