                                                                          FILED
                                                                       AUGUST 1, 2017
                                                                  In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 34980-2-111
                     Respondent,               )
                                               )
       V.                                      )
                                               )
GARY LEE BROWN, JR.,                           )         UNPUBLISHED OPINION
AIK.IA GARY LEE TAYLOR,                        )
                                               )
                     Appellant.                )

       KORSMO,   J. - Gary Brown 1 raises numerous challenges to his conviction for first

degree arson, including claims that the trial court erred in admitting a "Smith affidavit"

prepared by a witness and by assisting the prosecutor in entering that evidence. Although

the trial court's actions raise appearance of fairness concerns, we conclude that the court

did not abuse its discretion in admitting the affidavit and affirm.

                                          FACTS

       This case arises from an arson fire that destroyed a mobile home, which was one

of several structures, including another mobile home and a camper trailer, on the same

multiple-acre parcel in Humptulips. The destroyed home was rented by J .J. Raskey and



       1
        Mr. Brown was known as "Gary Taylor" to some of the witnesses and
occasionally was referred to by that name in trial testimony.
No. 34980-2-III
State v. Brown


Sally Emery. The other mobile home was the residence of Jose Orellana-Arita and

Brandi Haley, while the camper trailer was the home of Michael Anderson.

        The arson fire occurred on April 22, 2014; neither occupant was home at the time.

Neighbors observed a green van belonging to Edna Ferry at the scene shortly before the

fire broke out. Ms. Ferry told officers that she and her boyfriend, defendant Gary Brown,

had been on the property to visit Orellana-Arita and Haley, but the pair had not left the

van.

       Sometime after the fire, Anthony Snodgrass gave Mr. Brown a ride in his car.

Brown told Snodgrass that he had set the fire, at the request of Orellana-Arita, in

exchange for a truck. Snodgrass subsequently spoke with Detective Darrin Wallace of

the Grays Harbor County Sheriffs Office. Wallace wrote the statement out for

Snodgrass on a two page form entitled "Victim/Witness Statement" that included a

certification form stating the statement was true and correct under penalty of perjury

under the laws of the State of Washington. Both pages were signed and dated by both

Mr. Snodgrass and Detective Wallace.

       The case against Mr. Brown eventually proceeded to jury trial. Mr. Orellana-Arita

had been convicted of multiple charges, including solicitation to commit arson, and did

not testify at Mr. Brown's trial. Fire investigators testified for the State, and so did

several of the residents of the area. A fire investigator testified that the fire was not

caused by electrical wiring, but that the bum pattern on the floor "screams" that an

                                               2
No. 34980-2-III
State v. Brown


ignitable liquid had been used. Report of Proceedings (RP) at 268. Mr. Anderson

testified that Brown had approached his camper and took Anderson's gas can and filled a

milk jug and a motor oil jug with gas. He also took one of Anderson's towels, ripped it

in half, and walked off towards the Emery/Haskey residence. Anderson also told jurors

about ongoing tension between Emery/Haskey on one side and Orellana-Arita/Haley on

the other.

       Ms. Ferry, no longer in a relationship with Mr. Brown, told jurors about

conversations Brown had with Orellana-Arita and Haley. She said that Brown reported

"everybody" wanted Emery and Haskey out of their home. She had dropped Brown off

on the property on the day of the fire and picked him up on the road a half mile away

about 15 minutes later. She did not speak to him about what he was doing on the

property.

       An emotional Sally Emery, glaring at the defendant when she took the stand, also

testified for the State. When asked what happened to her home, Ms. Emery replied "Gary

burned it." The trial court initially allowed the answer to stand, but later in the day struck

the answer and told jurors to disregard it. In response to a question on cross-examination,

Ms. Emery told jurors that Diane Norris "said ,she was going to bum my stuff, her and

Brandi Haley coaxed Gary Taylor into doing it." RP at 173. The court sustained a

defense objection and struck the statement.




                                              3
No. 34980-2-111
State v. Brown


       The State called Snodgrass as its penultimate witness. He claimed a lack of

memory concerning events and hinted that heart surgery and subsequent treatment had

damaged his memory. Review of his written statement failed to refresh his memory and

the prosecutor spent a significant amount of time questioning Snodgrass to elicit

testimony of substance. The trial court interrupted the examination, excused the jury, and

the following colloquy occurred:

               THE COURT: Mr. Walker, you are flopping around like a fish on a
       riverbank.
               MR. WALKER: Yes, Your Honor.
               THE COURT: You have passed up refreshing his recollection about
       15 minutes ago. I granted you permission to treat him as a hostile witness.
       Take the statement from him, and read it to him, and ask him if that's what
       he told Detective Wallace. Do something besides continuing to just run in
       circles here, and have him be evasive. We are not getting anywhere. There
       is a way for you to impeach him with that statement, and I want you to do
       so.
               MR. WALKER: Very well, Your Honor.
               THE COURT: All right. Have the jury brought back in.

RP at 318. Defense counsel made no comment. The State then attempted to impeach by

confronting Mr. Snodgrass with the contents of his statement in the form of leading

questions. Mr. Snodgrass replied either "yeah" or "I guess" in response to the remainder

of the State's leading questions. He stated that he recognized the form and his signature

on it, but did not know if it contained any inaccuracies. On cross-examination he stated

that he did not recall reading the statement after the detective wrote it out on his behalf.




                                              4
No. 34980-2-111
State v. Brown


       Detective Wallace was the final witness for the State. He told jurors that Snodgrass

had read the statement to ensure its accuracy before signing it. The prosecutor asked the

court to excuse the jury and, after that had occurred, moved to admit the affidavit as

substantive evidence under State v. Smith.2 The defense objected, but the court overruled

the objection and admitted the statement. Ex. 54. Before going to the jury, the affidavit

was redacted to remove a statement unrelated to the arson charge. Ex. 57.

       The jury found Mr. Brown guilty of first degree arson. On the basis of his high

offender score, the trial court declared an exceptional sentence and ordered the arson

sentence to run consecutively to the sentences in two other superior court files. Mr.

Brown timely appealed. A panel of this court considered the matter without argument.

                                       ANALYSIS

       Mr. Brown raises several arguments concerning the proceedings at trial. We begin

with his challenge to the admission of the Snodgrass affidavit and the trial judge's rulings

relating to Snodgrass's memory failure. We then turn to the challenges to the testimony

of Ms. Emery, whether trial counsel rendered ineffective assistance during the testimony

of Snodgrass and Emery, whether the court erred in permitting some of Ms. Ferry's

testimony, and whether a firefighter improperly expressed an opinion. 3



       2
       97 Wn.2d 856,651 P.2d 207 (1982).
      3
       In light of our conclusion that there were not multiple errors, we do not address
Mr. Brown's claim of cumulative error.

                                             5
No. 34980-2-III
State v. Brown


       Admission of the Snodgrass Statement

       The primary issue here is whether it was error to admit Mr. Snodgrass's witness

statement into evidence both to impeach him and as substantive evidence. Since the trial

court had tenable reasons for admitting the document, there was no abuse of discretion.

       Trial judges have great discretion in the admission of evidence; thus, decisions to

admit or exclude evidence will be overturned only for manifest abuse of discretion. State

v. Luvene, 127 Wn.2d 690, 706-707, 903 P.2d 960 (1995); State v. Makela, 66 Wn. App.

164, 168, 831 P.2d 1109 (1992) (ER 80l(d)(l)(ii)). Discretion is abused where it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79

Wn.2d 12, 26,482 P.2d 775 (1971). A court also abuses its discretion when it applies the

wrong legal standard. State v. Rafay, 167 Wn.2d 644, 655, 222 P.3d 86 (2009).

       "Hearsay" is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted. ER

801 (c). Prior statements of testifying 4 witnesses are considered hearsay unless they fall

under an exclusion or exception to the hearsay rule. Hearsay exclusions include the

nonhearsay categories of ER 801 (d)( 1), one of which is a prior inconsistent statement

under oath. Similarly, one of the many hearsay exceptions is for past recollections


       4
        As Mr. Snodgrass was present at trial and subject to cross-examination, the
confrontation issues implicated by use of Smith affidavits are not discussed in this
opinion. But see Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004 ).

                                             6
No. 34980-2-III
State v. Brown


recorded. ER 803(a)(5). Prior statements that directly contradict the witness' testimony

qualify as inconsistent statements, as do statements that differ in a significant way from

the witness' testimony. ER 613; State v. Johnson, 40 Wn. App. 371, 377, 699 P.2d 221

( 1985). Less clear are borderline situations when the witness claims to have forgotten

certain facts at issue, or simply refuses to give any substantive testimony.

       When a witness whose credibility is a fact of consequence to the action testifies at

trial about an event, but claims to have no knowledge of a material detail, or no

recollection of it, most courts permit a prior statement indicating knowledge of the detail

to be used for impeachment. State v. Newbern, 95 Wn. App. 277, 292, 975 P.2d 1041

(1999). To be admissible for impeachment purposes, a witness' in-court testimony need

not directly contradict the witness' prior statement; "' inconsistency is to be determined,

not by individual words or phrases alone, but the whole impression or effect of what has

been said or done."' Id. at 294 (quoting Sterling v. Radoford, 126 Wash. 372,375,218

P. 205 ( 1923)). If a person's credibility is a fact of consequence to the action, the jury

needs to assess it, and impeaching evidence may be helpful. State v. Allen S., 98 Wn.

App. 452, 459-460, 989 P.2d 1222 (1999).

       A prior inconsistent statement admitted solely for purposes of impeaching the

credibility of a witness under ER 613, does not constitute substantive evidence, and the

court should give a limiting instruction to that effect. Under ER 801 ( d)( 1)(i), however, if

the prior statement was "given under oath subject to the penalty of perjury at a trial,

                                              7
No. 34980-2-III
State v. Brown


hearing, or other proceeding, or in a deposition," it would be admissible substantively.

Written affidavits given to police officers may meet the definition of "under oath" and

"other proceedings" for purposes of ER 80l(d)(l). State v. Smith, 97 Wn.2d at 860-862.

As the phrase "other proceeding" in ER 801 (d) is intentionally open-ended, the Smith

court emphasized that the purposes of the ruie, the reliability of each statement, and the

facts of each case must be specifically analyzed. State v. Otton, 185 Wn.2d 673, 682, 374

P .3d 1108 (2016).

       Smith established a four-factor test for determining whether a police interview

qualifies as an "other proceeding" and whether an affidavit produced during that meeting

is "under oath." State v. Nelson, 74 Wn. App. 380, 386-387, 874 P.2d 170 (1994). Those

factors are whether: (1) the witness voluntarily made the statement, (2) there were

minimal guaranties of truthfulness, (3) the statement was taken as standard procedure in

one of the four legally permissible methods for determining the existence of probable

cause, 5 and (4) the witness was subject to cross-examination when giving the subsequent

inconsistent statement. Smith, 97 Wn.2d at 861-863. Otton reaffirmed this approach.

Otton, 185 Wn.2d at 680. The Smith factors overlap, and specify, the definition of a non-

hearsay prior statement under ER 80l(d)(l)(i). That rule requires a showing that the



       5 The four methods are ( 1) filing of an information by the prosecutor in superior
court, (2) grand jury indictment, (3) inquest proceedings, and (4) filing of a criminal
complaint before a magistrate. Smith, 97 Wn.2d at 862 (citations omitted).

                                             8
No. 34980-2-III
State v. Brown


witness "' testifies at the trial or hearing and is subject to cross examination concerning

the statement, and the statement is (i) inconsistent with the declarant's testimony, and

was given under oath subject to the penalty of perjury at a trial, hearing, or other

proceeding."' Id. at 679 (quoting ER 801(d)(l)).

       Mr. Brown argues both that it was error to impeach Snodgrass with the statement

and to admit the statement as substantive evidence. Admitted evidence may be used for

all proper purposes. Micro Enhance v. Coopers & Lybrand, 110 Wn. App. 412,430, 40

P.3d 1206 (2002). 6 Since we conclude that the statement was properly admitted as

substantive evidence under Smith, we need not separately consider whether it was

properly admitted for impeachment purposes and do not further address that argument.

       Here, the trial court reviewed ER 80l(d)(l) and concluded it was proper to admit

the statement under that rule. RP at 335-336. Mr. Snodgrass voluntarily spoke to

Detective Wallace, who wrote down what Mr. Snodgrass said. Mr. Snodgrass also

signed and dated the statement, which also identified the location where it was taken and

indicated it was made under penalty of perjury. Ex. 54. The statement thus satisfied the

certification requirements ofRCW 9A.72.085(1). The record also reflects that it satisfied

the specific requirements of Smith: it was voluntarily made in the course of a police

investigation used to establish probable cause for charging the offense of arson. The


       6
        Cf ER 105 (requiring jury instruction when evidence is admitted for limited
purpose).

                                              9
No. 34980-2-III
State v. Brown


detective's testimony concerning the creation of the statement establishes the "minimal

guaranties of truthfulness": Mr. Snodgrass gave the statement, the officer wrote it out,

Mr. Snodgrass read the statement and signed it under penalty of perjury after having the

opportunity to amend it. RP at 332-334. Indeed, the only objection defense counsel

raised was that the statement was cumulative evidence and therefore did not need to be

admitted. RP at 335, 336.

       The statement was in the form used and approved in Smith. The detective

provided testimony concerning the circumstances of the making of the statement. The

trial court therefore had tenable grounds for admitting the exhibit as substantive evidence.

The court did not err. 7

       Intervention of Trial Judge

       Appellant next challenges the trial court's directive to the prosecutor to impeach

Mr. Snodgrass despite not objecting to the process during trial. Mr: Brown contends this

was a violation of the separation of powers doctrine. He has no standing to raise such a

claim, which more properly sounds in due process or the appearance of fairness doctrine.

Although we are concerned about how the court used its trial management authority, and


       7
         This conclusion also resolves Mr. Brown's argument that the prosecutor
committed misconduct in calling Snodgrass for the sole purpose of impeaching him.
That was not the case. Mr. Snodgrass had relevant evidence to offer and was required to
provide that information at trial. State v. Ruiz, 176 Wn. App. 623, 634-635, 309 P.3d 700
(2013), review denied, 179 Wn.2d 1015, cert. denied. 190 L. Ed. 2d 63 (2014). The
prosecutor did not err in calling him to the stand. Id. at 634-640.

                                            10
No. 34980-2-III
State v. Brown


we caution against similar behavior in the future, the admission of the testimony under

Smith rendered any error harmless.

       The separation of powers doctrine does not involve any rights of the individual:·

               Unlike many other constitutional violations, which directly damage
       rights retained by the people, the damage caused by a separation of powers
       violation accrues directly to the branch invaded. The maintenance of a
       separation of powers protects institutional, rather than individual, interests.

Carrick v. Locke, 125 Wn.2d 129, 136, 882 P.2d 173 (1994). Accordingly, Mr. Brown

lacks standing to claim that the separation of powers doctrine was violated. See State v.

Gutierrez, 50 Wn. App. 583, 591-592, 749 P.2d 213 (1988) (no standing to assert

violation of rights of another).

       Mr. Brown might have been able to fashion this claim as a violation of the

appearance of fairness of doctrine but for the fact that he did not challenge the judge's

action at trial. The appearance of fairness doctrine is not constitutional in nature and,

hence, cannot be raised initially on appeal. RAP 2.5(a); State v. Blizzard, 195 Wn. App.

717,725,381 P.3d 1241 (2016), review denied, 187 Wn.2d 1012 (2017).

       Accordingly, it appears that this argument is better considered as a due process

right to a fair trial claim. E.g., State v. Moreno, 147 Wn.2d 500, 506-512, 58 P.3d 265

(2002) (statute permitting judges to call and question witnesses in traffic infraction

proceedings). Mr. Brown also argues this challenge from this perspective.




                                             11
No. 34980-2-111
State v. Brown


       Trial judges have broad discretion to manage their courtrooms and conduct trials

fairly, expeditiously, and impartially; they must exercise reasonable control over the

mode and order of interrogating witnesses and presenting evidence so as avoid needless

consumption of time. ER 61 l(a)(2). A trial court is responsible to ensure the evidence is

fully developed for the jury and to resolve, as far as possible, any ambiguities or conflicts

in the evidence. Moreno, 147 Wn.2d at 509. This court, therefore, reviews a trial judge's

courtroom management decisions for abuse of discretion. Peluso v. Barton Auto

Dealerships, Inc., 138 Wn. App. 65, 69, 155 P.3d 978 (2007).

       Due process requires, among many other things, that a tribunal be fair. Moreno,

147 Wn.2d at 506-507. That fairness obligation can be violated when a judge dons

"executive and judicial hats at the same time." Id. at 507. Also, colloquies between the

court and counsel hold the potential to present a fair trial challenge. State v. Ingle, 64

Wn.2d 491,499, 392 P.2d 442 (1964). On these facts, only that last concern is

implicated. The trial court did not undertake the prosecution function; the court did not

question Snodgrass, nor did it give the directive in the presence of the jury. Instead, the

problem arose from the apparent command given the prosecutor in the colloquy outside

the jury's presence.

       The court was free in its exercise of its courtroom management authority to tell the

prosecutor to move on, and perhaps even to give an "either/or" directive (such as

"impeach him if that is what you are trying to do or else move on to another subject")

                                              12
No. 34980-2-III
State v. Brown


since a significant amount of time had passed without the testimony substantively

progressing in any manner. However, the language used appeared to tell the prosecutor

how to try his case as if the prosecutor was a functionary of the judge. That would create

a fair tribunal issue if that was what the judge truly intended. For a couple of reasons, we

think, however, that this was actually a diction problem.

       First, the defense did not object to the court's language or proposal. In this

context, we think that defense counsel simply did not see the directive as serious error,

but merely viewed the statement as nothing other than the judge telling the prosecutor to

move on from his flailing around. Cf State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610

(1990) (Noting that the absence of an objection or motion for mistrial "strongly suggests

to a court that the argument or event in question did not appear critically prejudicial to an

appellant in the context of the trial."). Second, the evidence ultimately was admitted for

substantive purposes on the motion of the prosecutor. As discussed previously, this made

the impeachment proper. The evidence was before the jury for all purposes, rendering

the judge's statement nothing more than inartful phrasing. It did not lead to the

admission of improper evidence.

       Accordingly, although we wish the judge had stated his comment differently, it

was not such a significant matter that it demonstrated that the tribunal was biased against

Mr. Brown. Most certainly the use of properly admitted evidence did not deprive Mr.

Brown of a fair trial.

                                             13
No. 34980-2-111
State v. Brown


       The comment did not amount to reversible error.

       Testimony of Ms. Emery

       Mr. Brown next argues that the trial court erred in its handling of the two

statements by Ms. Emery that the trial court ultimately struck from the record. Since the

defense never asked the trial court for any additional relief, there is nothing more to be

done on appeal.

       As noted earlier, Ms. Emery on separate occasions stated "Gary burned it," and

that others wanted the trailer burned and "coaxed Gary Taylor into doing it." The

improper admission of evidence at trial is considered a "trial irregularity." State v.

Weber, 99 Wn.2d 158, 163, 659 P.2d 1102 (1983); accord State v. Emery, 174 Wn.2d

741, 750, 278 P.3d 653 (2012) (one defendant interrupted the other's testimony to accuse

him of perjury). When inadmissible testimony is put before the jury, the trial court

should declare a mistrial if the irregularity, in light of all of the evidence in the trial, so

tainted the proceedings that the defendant was deprived of a fair trial. Weber, 99 Wn.2d.

at 164. In deciding that question, a court will consider whether a curative instruction

would have been useful. Id. at 165. The decision whether or not to grant a new trial due

to a trial irregularity is a matter left to the discretion of the trial court since the trial judge

is in the best position to assess the harm, if any, caused by the irregularity. Id. at 166.

"The question is not whether this court would have decided otherwise in the first




                                                14
No. 34980-2-III
State v. Brown


instance, but whether the trial judge was justified in reaching his conclusion." State v.

Taylor, 60 Wn.2d 32, 42, 371 P.2d 617 (1962) (trial court order granting new trial).

       However, this approach fails Mr. Brown because he never sought a mistrial or a

new trial over the Emery testimony. It is presumed thatjurors "followed the judge's

instructions to disregard the remark." Weber, 99 Wn.2d at 166. Mr. Brown does not

suggest that there is any indication that jurors disregarded the trial court's instructions.

Thus, we have no reason for concluding that the trial court abused discretion it was never

asked to exercise.

       Instead, Mr. Brown is left to argue that Ms. Emery's remarks constituted an

improper invasion of the jury's province to determine guilt or innocence by expressing a

personal opinion on his guilt. State v. Montgomery, 163 Wn.2d 577, 591, 183 PJd 267

(2008). Opinion testimony that is "' based on one's belief or idea rather than on direct

knowledge of the facts at issue'" is generally inadmissible to indicate the guilt or

innocence of a defendant. State v. Demery, 144 Wn.2d 753, 760, 30 PJd 1278 (2001)

(quoting BLACK'S LA w DICTIONARY, 1486 (7th ed. 1999). Whether testimony

constitutes an impermissible opinion on guilt or a permissible opinion embracing an

"ultimate issue" will generally depend on the specific circumstances of each case,

including the type of witness involved, the specific nature of the testimony, the nature of

the charges, the type of defense, and the other evidence before the trier of fact. Id. at 759.




                                              15
No. 34980-2-III
State v. Brown


          Unlike Montgomery and many similar cases, here the opinion testimony of the

victim was stricken from the record. Unlike Weber and its progeny, the trial court was

not asked to give additional relief. Accordingly, Mr. Brown can only obtain relief in this

circumstance if the stricken remarks were so egregious that no remedy other than a new

trial would suffice. Weber, 99 Wn.2d at 164. For several reasons, we think that is not the

case here. First, as noted previously, the failure to seek further relief in this circumstance

strongly suggests that no additional relief was needed. Swan, 114 Wn.2d at 661. Second,

it is unlikely that the jury was unduly swayed by the emotional victim's testimony given

her obvious bias against the defendant. That the victim of an arson fire would blame the

accused is not something beyond the common understanding of the jury, which would

discount her baseless opinion accordingly. Finally, the prosecution did not rely on the

stricken statements to tie the defendant to the crime. His own statement, as well as the

eyewitness testimony putting him at the scene when the fire started, were much stronger

evidence linking him to the crime. The stricken evidence pales in significance.

          Accordingly, there is no reason to believe that any relief other than that sought and

obtained at trial was necessary in this instance. The stricken remarks, which also were

the subject of cautionary instructions, were not of such significance to require further

relief.




                                               16
No. 34980-2-III
State v. Brown


       Effective Assistance of Counsel

       Mr. Brown next argues that his counsel performed ineffectively in not objecting to

the Snodgrass impeachment and by failing to seek a mistrial over Ms. Emery's stricken

remarks. This derivative argument is unnecessary and unavailing.

       Ineffective assistance claims require proof that a defense attorney failed to

perform to the standards of the profession; that failure will require a new trial when it

results in prejudice to the client. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d

1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to

counsel's decisions. A strategic or tactical decision is not a basis fo~ finding error.

Stricklandv. Washington, 466 U.S. 668, 689-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984). Under Strickland, courts apply a two-prong test: whether or not (1) counsel's

performance failed to meet a standard of reasonableness and (2) actual prejudice resulted

from counsel's failures. Id. at 688-692. When a claim can be resolved on one ground, a

reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster, 140

Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).

       The ineffective assistance argument is unavailing here for the reasons previously

stated. The Snodgrass statement was properly admitted as substantive evidence, so it was

also properly used for impeachment. Counsel did-not err in failing to raise further

challenges. The stricken Emery statements have not been shown to have been so

prejudicial that the trial court's actions were ineffectual. Even if counsel should have

                                              17
No. 34980-2-111
State v. Brown


sought a mistrial, a question we do not reach, appellant has not established that he was

prejudiced by the failure.

       The ineffective assistance argument is without merit.

       Ms. Ferry's Testimony

       Mr. Brown also challenges Ms. Ferry's testimony concerning his statements to her

about a telephone conversation he was having with Orellana-Arita and Haley. He argues

that this was double hearsay and a violation of his confrontation right. The latter

argument can be rejected summarily. A conversation between acquaintances does not

constitute testimonial hearsay that raises confrontation clause questions. State v.

Wilcoxon, 185 Wn.2d 324,373 P.3d 224, cert. denied, 137 S. Ct. 580 (2016) (statement

by one defendant to other acquaintance not testimonial hearsay under confrontation

clause).

       We have previously noted that we review a trial court's evidentiary rulings for

manifest abuse of discretion. Luvene, 127 Wn.2d at 707. The testimony at issue was

reflected in Ms. Ferry's testimony that "everybody" wanted the victims out of the trailer.

RP at 92. Her testimony also noted that she had previously been warned not to repeat

what Brown claimed others had said. As the trial court correctly noted, the prosecutor's

question did not elicit a hearsay response because it asked for Ms. Ferry to report what

Mr. Brown had said, not what he reported others as having said. His statement was not

hearsay since it was offered against him. ER 801(d)(2). At the conclusion of the passage

                                             18
No. 34980-2-III
State v. Brown


in question, her answer reflected her summation of the conversation-"everybody"

wanted them out-but did not repeat anyone's specific statement to that effect. Ferry did

not report any quotation Brown may have supplied to her.

       This statement was not hearsay. Moreover, the defense never challenged that

statement after it was uttered, presumably because it did not violate the court's order not

to relate hearsay. Ms. Ferry did not report anything that someone else stated. The trial

court did not manifestly abuse its discretion in admitting the testimony.

       Firefighter 's Testimony

       Lastly, Mr. Brown contends that firefighter Danny Mohr, a twelve-year volunteer

firefighter, was erroneously allowed to voice expert opinions concerning the fire. We

discern no abuse of discretion.

       After Mohr, the first responder, described the characteristics of the fire when he

arrived, he indicated that the burning was "unusual for mobile home fire." The court

sustained defense counsel's objection that Mohr was not qualified to issue an expert

opinion. The prosecutor then laid a foundation with Mohr describing his experience with

mobile home fires. The court permitted Mohr to tell jurors how this fire burned

differently from other mobile home fires he had fought. RP at 53. He then testified that

most trailer fires he had seen spread out from the point of ignition instead of burning

solely in that area. RP at 56-57. Mohr also told jurors he was not an investigator and did

not express an opinion concerning the cause of the fire. RP at 57.

                                             19
No. 34980-2-III
State v. Brown


       Mr. Brown contends on appeal that Mohr was improperly permitted to express an

expert opinion. We disagree. Although an expert can express an opinion that is based on

either training or experience, ER 702, Mohr did not do so here. Rather, he explained his

previous experience with trailer fires and indicated how this fire differed from those fires.

To the extent this was "opinion" testimony at all, it was based on his experiences rather

than on technical scientific information and, therefore, was admissible as lay opinion

testimony. See ER 701. However, the trial court expressly prohibited Mohr from

expressing an opinion, and he did not do so. Instead, he told the jurors about the burning

he observed in this trailer and the burning he usually observed in trailer fires. RP at 56-

57. These.were factual observations. It was the fire investigator, a witness whose

testimony is unchallenged on appeal, who stated this fire was set with a flammable liquid.

Mohr did not state any improper opinions.

       The trial court properly circumscribed Mr. Mohr's testimony. There was no error,

let alone abuse of discretion.

       Finally, Mr. Brown requests that we waive appellate costs in the event the State

substantially prevails on appeal. We decline to address the request. In the event that the

State files a cost bill, our commissioner will entertain a timely objection in accordance

with the provisions of RAP 14.2.




                                             20
No. 34980-2-111
State v. Brown


      The conviction is affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




                                    j
    ~ ~1: tcJ~, J::·
      Siddoway,




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