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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON2>i                                 .>-» --•..

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STATE OF WASHINGTON,                                                                    -—-j;-—'
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                                                  DIVISION ONE                cx>       •    -,    -




                     Respondent,
                                                  No. 68136-2
                    v.
                                                  UNPUBLISHED OPINION
GENE M. FULTON,

                     Appellant.                   FILED: June 17, 2013


       Dwyer, J. — Gene Fulton appeals from his conviction of burglary in the

second degree arising from an incident in which he entered an unoccupied

residence that was under construction and removed a washer and dryer set. He

contends that the trial court denied him a fair trial by admitting testimony that

constituted an improper opinion on guilt. Because no such impermissible opinion

was offered, we affirm.




       On July 13, 2010, at approximately 1:00 a.m., Barbara Mae Solari was

smoking a cigarette on the front porch of her home when she noticed a white

truck slowly drive into the housing development in which she resided. Solari

observed that two individuals were inside the truck and that its headlights were

turned off.
No. 68136-2/2



       Because Solari was unusually familiar with cars and trucks, she was able

to determine that the vehicle entering the housing development was a small,

white utility truck from the early 1990s, had a single cab, and had a four-cylinder

engine. Solari also heard a distinct, constant rattle emanating from the truck,

which she believed originated from the middle or front of the truck as it was

moving. She believed that the rattling sound indicated a defect in the truck's

catalytic converter.

       Solari saw the truck back into the driveway of a nearby house in the

housing development. As with many other residences in the development, this

home was still under construction and unoccupied. After the truck parked in the

driveway, Solari watched as two men exited the truck and entered the home.

She had a clear view of the scene, as she observed the men's actions.

       Suspicious of such activity, Solari called 911. She informed the operator

of the activities she had seen and provided a description of the truck. Solari

stayed on the telephone while she watched the men, and continued to relay to

the operator what she was observing. Although Solari was unable to discern the

men's facial features, she noted that they were Caucasian, of average build, and

between 57" and 6'1". She also noticed that one man was dressed in a white

shirt and jeans, and that the other man was wearing darker clothing.

       The two men soon emerged from the home carrying a large white box.

Solari perceived the box to be an appliance, such as a washer or dryer. The

men loaded the box into the back of the truck, returned inside the home, and

appeared outside with another large box. After they stowed the second box in

                                        -2-
No. 68136-2/3



the back of the truck, the two men entered the vehicle and drove away from the

home with the truck's headlights turned off. Solari reported to the 911 operator

the direction in which the truck was moving once it left the housing development.

She knew the truck's direction of travel because she could hear the rattling of the

catalytic converter as the truck drove away in the morning quiet.

       Officers from the Auburn Police Department arrived at the housing

development shortly thereafter and spoke with Solari about her observations.

Sergeant Mark Caillier investigated the burglarized home and discovered that the

doors were unlocked and that all of the appliances were in place except for the

washer and dryer.

       Police officers also began conducting checks in the area for a truck

matching the description provided by Solari. Shortly after Officer Tillman Atkins

received the dispatch concerning the vehicle, he saw a white Ford Ranger pickup

truck driving southbound on the freeway. The truck was an older model with

what he believed to be a very loud exhaust. Officer Atkins stopped the vehicle

and subsequently discovered a new washer and dryer set located in the back of

the truck. Fulton was the truck's driver. Cory Stobie was its passenger.

       When Sergeant Caillier learned that Officer Atkins had stopped a pickup

truck that corresponded with Solari's description of the suspect vehicle, he

instructed Officer Jamie Douglas to respond to the location at which Fulton and

Stobie were detained. Officer Douglas arrived shortly thereafter to direct the

investigation.

       The following day, the construction manager of the housing development

                                        -3-
No. 68136-2/4



compared the serial numbers of the washer and dryer that were found in the

back of Fulton's truck with the set that was installed in the burglarized residence.

The numbers were identical.

       On July 16, 2010, Fulton and Stobie were charged with one count of

second degree residential burglary. The information was subsequently amended

to one count of burglary in the second degree to reflect the fact that the building

they had entered was not an occupied dwelling. Stobie and Fulton were

prosecuted in a joint trial that commenced on October 31, 2011. During direct

examination, Officer Douglas testified that upon arriving at the location at which

Fulton and Stobie were detained, he noticed that Fulton's truck matched the

description of the suspected vehicle that police were searching for that night.

The following exchange then took place:

               Q. What were you thinking when you came upon the scene
       and saw what you described to us?
               A. Based on the totality of everything I'd been given and
       what I saw, this was the suspect vehicle and [inaudible].
               [Defense Counsel]: Objection, your Honor. I think that the
       answer calls for something that the jury needs to decide and not
       this officer. Apparently the question is along the lines of did we get
       the right people. I think that's a question that other people have to
       answer, not this officer.
              [Prosecutor]: Obviously ... the jury will ultimately decide . ..
       whether or not the law enforcement obtained the correct
       individuals, but nevertheless, his thinking during the course of this
       investigation is extremely relevant to the facts of this case.
               The court: I'm going to allow. Overruled.
               Q. Pardon me, officer, so you had indicated based on the
       totality of what you knew about the situation?
               A. That the, this was the suspect vehicle and that these two
       are the suspects.
              Q. Did you have any reason to doubt that?
              A. No.



                                        -4
No. 68136-2/5



       Fulton subsequently testified at trial. He testified that on the evening of

July 12, 2010, after gambling for several hours, he left the casino to meet with his

friend, Stobie, at a sports bar. When he pulled into the sports bar's parking lot,

he recognized two men who were parking their white or tan truck near his truck.

Fulton testified that he did not know their names, but had previously seen them at

the casino.


       According to his testimony, the two men offered to sell Fulton a washer

and dryer set that was located in the back of their truck. Fulton stated that he

paid $240 in cash for the appliances after negotiating the price with the two men.

He did not ask the men where they acquired the machines. Fulton claimed that

he bought the appliances for his friends who were in need of a washer and dryer.

However, he did not know these friends' surnames. After the men moved the

washer and dryer into the bed of his truck, Fulton testified, he found Stobie inside

the bar, and they left. While en route to Stobie's house, Fulton was pulled over

and arrested.

       The juryfound Fulton guilty as charged. He was thereafter sentenced to

12 months plus one day of incarceration.

                                          II


       Fulton contends that Officer Douglas's challenged testimony constituted

an impermissible opinion on guilt that denied him a fair trial. We disagree. No

such impermissible opinion on guilt was offered.

       Evidence Rule (ER) 701 permits testimony "in the form of opinions or

inferences" that are "rationally based on the perception of the witness" and

                                         -5-
No. 68136-2/6



"helpful to a clear understanding of the witness' testimony or the determination of

a fact in issue." Moreover, "[t]estimony in the form of an opinion or inferences

otherwise admissible is not objectionable because it embraces an ultimate issue

to be decided by the trier of fact." ER 704. However, generally, no witness may

offer an opinion regarding the defendant's guilt or veracity. 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), review denied. 176 Wn.2d 1023 (2013). Such testimony is

unfairly prejudicial to the defendant because it invades the exclusive province of

the jury. Kirkman, 159 Wn.2d at 927; Rafav, 168 Wn. App. at 805. A police

officer's opinion testimony regarding the veracity of another witness raises

additional concerns because "an officer's testimony often carries a special aura

of reliability." Kirkman, 159 Wn.2d at 928.

       Nonetheless, 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 constitute an opinion on guilt. Rafav, 168

Wn. App. at 806. "The fact that an opinion supports a finding of guilt. . . does not

make the opinion improper." State v. Collins. 152 Wn. App. 429, 436, 216 P.3d

463 (2009).

       When 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). Trial courts have wide

discretion to determine the admissibility of evidence. State v. Demerv, 144

                                        -6-
No. 68136-2/7



Wn.2d 753, 758, 30 P.3d 1278 (2001). Therefore, we review a trial court's ruling

on the admissibility of opinion evidence for an abuse of discretion. Demery, 144

Wn.2d at 758.

       Here, Officer Douglas testified at trial that "this was the suspect vehicle

and that these two are the suspects." Fulton asserts that this testimony

constituted an improper opinion of guilt. In so contending, Fulton interprets the

officer's testimony as an opinion that the police "had caught the perpetrator."

       However, the challenged testimony was not a statement of the officer's

belief as to Fulton's guilt. Officer Douglas neither used the word "perpetrator" nor

"guilt" when referring to Fulton in the challenged testimony. Nevertheless, Fulton

mistakenly likens the term "suspect" to "perpetrator" in order to support his

contention that the officer offered an opinion on Fulton's guilt. But these two

words are not commonly understood to be synonymous. While the plain

meaning of the term "perpetrator" is often understood as a person who has

carried out a criminal or illegal act, the term "suspect" ordinarily denotes an

individual who is believed to have carried out such an act, but whose guilt is not

yet confirmed. See Webster's Third New International Dictionary, 2303,

1684(2002).

       Here, the challenged testimony merely reflected that, upon his arrival at

the location in which the defendants were detained, Officer Douglas was satisfied

that he had encountered the suspects described by a witness to a burglary. This

view was based on his belief at the time that his observations of Stobie, Fulton,

and Fulton's truck corresponded with the description of the suspects and suspect

                                         -7-
No. 68136-2/8



vehicle that had been previously provided to him by the dispatcher. Moreover, at

that point in the trial, it can be fairly said that the jury was already aware that

Fulton was suspected of committing the burglary, and, as the prosecutor

indicated, that the jury would ultimately decide whether or not Fulton was guilty

as charged.

       Nor did the officer's statement concern an opinion on the veracity of

Fulton's testimony regarding his activities on the evening of July 12, 2010 and

the early morning of July 13, 2010. Fulton testified after Officer Douglas at trial.

Indeed, the officer's statement was "based on the totality" of the circumstances at

the time of the investigation, which included his receipt of Solari's description of

the suspects and the suspect vehicle, as well as his subsequent observations of

Stobie, Fulton, and Fulton's truck. Officer Douglas's testimony that, out on the

street, he believed that he was viewing the suspects, in no way commented on

the alternative explanation offered by Fulton as to how the washer and dryer

came to be in his truck's bed. At the time referenced in the officer's testimony,

Fulton's explanation of how he came to possess the washer and dryer had not

yet been offered to either the officers at the scene or the jury in the courtroom.

Officer Douglas's testimony was neither an opinion on guilt nor an opinion on

Fulton's veracity as a witness.

       Testimony that Fulton was a "suspect" and that his truck "was the suspect

vehicle" cannot reasonably be construed as direct comments on the guilt or

veracity of Fulton. There was no trial court error in the admission of the

challenged testimony.

                                          -8-
No. 68136-2/9



      Affirmed.


                  :h/tyuj
We concur:




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