                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                           December 12, 2017

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    STATE OF WASHINGTON,                                               No. 48873-6-II

                         Respondent,


         v.

    CARLOS AVALOS,                                              UNPUBLISHED OPINION

                         Appellant.



        SUTTON, J. — Carlos Avalos appeals his jury trial conviction of first degree assault. He

argues that he was denied a fair trial when one of the State’s witnesses expressed his opinion that

Avalos acted with intent to inflict great bodily harm. Avalos further argues that we can consider

this issue for the first time on appeal because it is a manifest constitutional issue and that his trial

counsel provided ineffective assistance of counsel by failing to object to this testimony.1 Because

Avalos failed to object to the challenged testimony and fails to show that this testimony was a

manifest constitutional error or prejudicial, we affirm.




1
 Avalos also requests that we decline to impose appellate costs. Under RAP 14.2, a commissioner
of this court will consider whether to award appellate costs if the State files a cost bill and the
defendant objects to it.
No. 48873-6-II


                                              FACTS

       On September 28, 2015, Avalos was transported from the Washington Corrections Center

(WCC) to the superior court for a change of plea hearing on a charge for assault of a corrections

officer. Before being transported, he was strip searched and an “electronic immobilization device”

referred to as a Band-It and other restraints were placed on his body. Report of Proceedings (RP)

at 45. Despite having been searched, Avalos managed to conceal a homemade weapon referred to

as a “shank.” See RP at 49, 185. Avalos had previously made the shank by sharpening a piece of

metal that he had removed from a computer keyboard.

       While being transported back from the court, Avalos removed the Band-It. Upon arriving

at the WCC, Avalos attacked Corrections Officer Squire and stabbed him in the face with the

shank. As other corrections officers attempted to restrain Avalos, Avalos continued to attempt to

strike Officer Squire with the weapon.

       Officer Squire suffered a puncture approximately one-half inch below his eye. The wound

did not require stitches. The doctor who treated Officer Squire later testified that if the injury had

been slightly higher it “would have most likely been very devastating to the eye” and could have

caused blindness. RP at 107.

                                          II. PROCEDURE

       The State charged Avalos with first degree assault and second degree assault. The case

proceeded to a jury trial.




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No. 48873-6-II


A. STATE’S WITNESSES

       At trial, the State’s witnesses testified as described above. In addition, Steven DeMars, the

chief investigator at the WCC, also testified for the State. DeMars identified various exhibits and

testified about the location of the transport van at the time of the assault and the security process

used when transporting prisoners.

       When the State asked DeMars to testify about “shank[s],” the following testimony

occurred:

       Q [State]       Okay. And what are the concerns about shanks in a correctional
       setting?
       A [DeMars] Shanks are obviously intended to inflict great bodily harm. They are
       made to intimidate, and to assault, and to—to harm a person for whatever their
       intent is. So staff have concerns about that all the time. We don’t wear vests, and
       so that is our greatest concern. When we do transports, we do wear vests. But
       clearly we’re not expecting to be stabbed or—
       Q      Okay. So you said that corrections officers rely on their—their authority to
       maintain—to keep the peace.
       A       Verbal tacticals, and authority with the uniform, and absolutely.
       Q       Okay. And this authority, does it work when a person has a shank and
       attacks an officer out of nowhere?
       A       No.
       Q       Why is that?
       A     Because the—the—clearly their intent is to harm. And—and the authority,
       the—the law doesn’t matter at that point. Their—their intent is to do whatever
       damage and harm to that person.
       Q       What about, you said voice. How does—how does voice fit into this?
       A       Verbal tactical skills. We’re trained to de-escalate, to communicate with—
       with folks, to not have to rise to a level of violence, if at all possible.
       Q    Okay. So I take it then that you’re saying that corrections officers are
       somewhat vulnerable if there’s a surprise attack?
       A       Correct.

RP at 49-51 (emphasis added). Defense counsel did not object to this testimony.


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No. 48873-6-II


B. DEFENSE WITNESS

       Avalos was the only defense witness. Avalos admitted to making and concealing the

shank, to removing the Band-It, and to assaulting Officer Squire with the shank.

       But Avalos denied intending to inflict “serious bodily injury” or intentionally striking

Officer Squire in the face. RP at 187-88. Avalos asserted that his only objective was to obtain a

transfer to another facility closer to his family. He admitted, however, that he had obtained

transfers in the past by assaulting officers and that he used a weapon because an assault with a

weapon would be taken more seriously and was more likely to lead to a transfer. Avalos also

testified that although he had once succeeded in obtaining a transfer after he stabbed a corrections

officer several times in the neck, he did not think that he was more likely to be transferred if he

seriously injured Officer Squire and “just any assault” would be sufficient. RP at 194.

       In closing argument, the State did not refer to DeMars’s testimony that shanks are intended

to inflict great bodily harm. Instead, the State argued that Avalos’s creation of and use of the

shank, in combination with his planning the attack at a time he knew Officer Squire would be

vulnerable and the fact Avalos stabbed the officer in the face demonstrated an intent to inflect great

bodily harm. The State also argued that Avalos’s need to seriously injure an officer to obtain a

transfer demonstrated an intent to inflict great bodily harm.

       The jury found Avalos guilty of second degree assault and first degree assault. The trial

court merged the second degree assault conviction with the first degree assault conviction. Avalos

appeals his first degree assault conviction.




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No. 48873-6-II


                                            ANALYSIS

                         I. OPINION TESTIMONY ARGUMENT NOT PRESERVED

        Avalos argues that he was denied his constitutional right to a fair trial because DeMars’s

testimony expressed his opinion that Avalos 2 acted with intent to inflict great bodily harm. 3

Avalos further contends that he may raise this issue for the first time on appeal because it is a

manifest constitutional error.

        We first address the threshold issue of whether Avalos may raise the alleged improper

opinion testimony issue for the first time on appeal under RAP 2.5. We hold that Avalos has failed

to preserve this issue for review.

        To raise an error for the first time on appeal, the appellant must demonstrate that the error

was “manifest” and truly of constitutional dimension by identifying the constitutional error and

showing how the alleged error actually affected his rights at trial. RAP 2.5(a)(3); State v. Kirkman,

159 Wn.2d 918, 926-27, 155 P.3d 125 (2007). Impermissible opinion testimony regarding a

defendant’s guilt may be reversible error because such evidence violates the defendant’s

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

jury. Kirkman, 159 Wn.2d at 927. But Avalos fails to show that the error he alleges actually

affected his rights at trial.




2
  We note that appellant misquotes DeMars’s testimony on page 6 of his opening brief. DeMars
did not testify that Avalos obviously intended to inflict great bodily harm; instead DeMars testified
that “[s]hanks are obviously intended to inflict treat bodily harm.” RP at 50.
3
 To find Avalos guilty of first degree assault, the jury had to find, among other elements, that he
had acted “with intent to inflict great bodily harm.” RCW 9A.36.011(1).


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No. 48873-6-II


       State v. Montgomery, 163 Wn.2d 577, 183 P.3d 267 (2008), is instructive. In Montgomery,

a case involving a charge of possession of pseudoephedrine with intent to manufacture

methamphetamine, a detective and a forensic scientist testified that the defendant had made

purchases of various items with intent to manufacture methamphetamine. Montgomery, 163

Wn.2d at 587-89. Our Supreme Court held that the detectives’ and forensic scientist’s testimony

concluding that the defendant had intended to manufacture methamphetamine were improper

direct comments on a disputed element of the charged offense. Montgomery, 163 Wn.2d at 595-

96. But the court further held that the improper testimony was not a manifest constitutional error

because the jury had been properly instructed that the jurors were the sole judges of credibility and

were not bound by expert witness opinions, and there was nothing demonstrating that the jury had

failed to follow these instructions. Montgomery, 163 Wn.2d at 595-96.

       Here, as in Montgomery, the jurors were instructed that they were “the sole judges of the

value or weight to be given to the testimony of each witness,” and that they were not “required to

accept” the opinion testimony presented by witnesses with special training, education, or

experience. Clerk’s Papers at 27, 32 (Jury Instructions 1 & 32). And, as in Montgomery, there is

no indication in the record demonstrating that the jury failed to follow these instructions.

Additionally, the testimony at issue here was less likely to have influenced the jury than the

testimony in Montgomery. DeMars’s testimony was general testimony about shanks and their

purpose and was not specific to Avalos. At best it inferred that Avalos acted with the requisite

intent whereas the witnesses in Montgomery expressly opined that the defendant had formed the

requisite intent. Thus, under Montgomery, even presuming that DeMars’s testimony was improper




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No. 48873-6-II


opinion testimony, Avalos has not shown that the potential error was sufficiently prejudicial to

qualify as a manifest error. Accordingly, we decline to address this issue further.4

                        II. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

       Avalos further argues that his trial counsel provided ineffective assistance of counsel by

failing to object to DeMars’s improper opinion testimony. We disagree.

       To establish ineffective assistance of counsel, Avalos must show both (1) deficient

performance and (2) resulting prejudice. State v. Lozano, 189 Wn. App. 117, 125, 356 P.3d 219

(2015) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)), review denied, 184

Wn.2d 1032 (2016). “Failure to establish either prong is fatal to an ineffective assistance of

counsel claim.” Lozano, 109 Wn.2d at 125 (citing Strickland v. Washington, 466 U.S. 668, 700,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). As discussed above, Avalos does not establish

prejudice. Accordingly, Avalos’s ineffective assistance of counsel claim fails.




4
  Avalos also relies on State v. Farr-Lenzini, 93 Wn. App. 453, 970 P.2d 313 (1999). Farr-Lenzini
addressed the admission of opinion testimony, not whether an appellant can raise an unpreserved
claim that a witness improperly gave opinion of guilt testimony. Thus, we rely on Montgomery
rather than Farr-Lenzini to support our analysis.
        Avalos also relies on State v. Barr, 123 Wn. App. 373, 98 P.3d 518 (2004), to support his
argument that the error here was a manifest constitutional error. But Barr is a Court of Appeals
case decided before Montgomery was decided by our Supreme Court, and Avalos does not explain
why we should reject Montgomery and continue to apply Barr. Because Montgomery is a more
recent case and we are required to follow our Supreme Court’s precedent, we rely on Montgomery
rather than Barr in our analysis.


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No. 48873-6-II


        Because Avalos failed to object to the challenged testimony and fails to show that this

testimony was a manifest constitutional error or prejudicial, 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.



                                                     SUTTON, J.
 We concur:



 WORSWICK, P.J.




 LEE, J.




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