                                                                             FILEC1
                                                                     COURT OF APPEALS DIY I
                                                                      STATE OF WASHINCTON
                                                                     2010 SEP 24 AN 8:35




          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


THE STATE OF WASHINGTON,                  )       No. 76874-3-1
                                          )
                       Respondent,        )
                                          )       DIVISION ONE
                       v.                 )
                                          )
ALEXANDER JOHN ZIETZ,                     )       UNPUBLISHED OPINION
                                          )
                       Appellant.         )       FILED: September 24, 2018
                                          )

       MANN, A.C.J. —Alexander Zietz appeals his conviction for possession of a stolen

vehicle. Zietz claims that he was deprived of the effective assistance of counsel

because counsel failed to object to the inadmissible and prejudicial testimony of a police

officer, and that the trial court abused its discretion when it denied his motion for a

mistrial. We affirm.

                                              FACTS

       On the evening of November 20, 2016, John Lundgren came out of a movie

theater and discovered that his vehicle, a 1994 Honda Accord, was not in the parking lot

where he left it. After verifying that the Accord had not been towed away, Lundgren

called the police to report the missing vehicle. A police officer came to Lundgren's

house and prepared a report.
No. 76874-3-1/2

       Shortly thereafter, City of Federal Way police officer Charlie Hinkle observed a

Honda Accord exit the highway with several occupants, ran the license plate number

through several law enforcement databases, and discovered that the vehicle had just

been reported as stolen. Officer Hinkle, who was driving a marked police car, did not

activate his siren or lights, but followed the Accord as it made a series of sharp turns.

He alerted the dispatcher and other officers working in the area that he was following a

suspected stolen vehicle. Hinkle continued to follow the Accord when it pulled into a

shopping mall parking lot. Hinkle activated his emergency lights when the vehicle

stopped. All four occupants opened their car doors simultaneously and got out of the

Accord. Officer Hinkle also got out of his vehicle and ordered the occupants to lower

themselves to the ground. The three passengers complied. However, the driver of the

car, a male with a thin build wearing dark pants and a dark jacket, hesitated for a

moment and then "took off running."

       Officer Hinkle stayed with the three passengers, while another officer chased the

driver on foot as he ran across a six-lane roadway. The driver jumped over a wall and

ran toward a cluster of restaurants and the officer lost sight of him. A few moments

later, a man, later identified as Zietz, entered the "Two NE Pho" restaurant through the

back door, and ran through the kitchen into the dining area. He passed Helen Lee, a

server at the restaurant, and asked her where the restroom was. When Lee told him

the restroom was for customers only, Zietz sat a table that had just been vacated and

removed his jacket. He then moved to a clean table. At the same time, another police

officer walked into the restaurant and said,"Where's the guy[?]" Lee pointed to Zietz




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No. 76874-3-1/3

and the officer arrested him. Officer Hinkle arrived at the scene of the arrest and

verified that Zietz was same person who had been driving and fled from the vehicle.

       Police officers took Lundgren to the parking lot and he identified the Accord as

his car, but could not identify Zietz or the other individuals who were detained at the

scene. He said he had not given anyone permission to use his car. In the car, the

police found a small folding knife on the driver's seat and gloves on the ground near the

driver's side door. The ignition slot appeared to have been widened.

       The State charged Zietz with possession of a stolen vehicle. At trial, the State

presented the testimony of Lundgren, Hinkle, Lee, and a second police officer. Zietz did

not testify. The jury convicted him as charged.

                                       ANALYSIS

                            Ineffective Assistance of Counsel

       Zietz contends that aspects of Officer Hinkle's testimony constituted

"inadmissible profile testimony" and/or improper opinion testimony. He claims that

defense counsel's failure to object deprived him of effective assistance of counsel. We

disagree.

       We review ineffective assistance of counsel claims de novo. State v. SutherbV,

165 Wn.2d 870, 883, 204 P.3d 916 (2009). A defendant claiming ineffective assistance

of counsel has the burden to establish that(1) counsel's performance was deficient and

(2) the deficient performance prejudiced the defendant's case. Strickland v.

Washinaton, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.

McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995). Failure to establish either

prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.



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No. 76874-3-1/4

       Counsel's performance is deficient if it falls below an objective standard of

reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Our

scrutiny of counsel's performance is highly deferential; we strongly presume

reasonableness. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). "If defense

counsel's trial conduct can be characterized as legitimate trial strategy or tactics, then it

cannot serve as a basis for a claim that the defendant did not receive effective

assistance of counsel." State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177(1991). To

establish prejudice, the defendant must show that but for counsel's performance, the

outcome would have been different. State v. McLean, 178 Wn. App. 236, 248, 313 P.3d

1181 (2013).

       Officer Hinkle testified about his experience as a patrol officer investigating stolen

vehicles. In the course of his experience, he learned that older model Japanese sedans

are mechanically easier to steal than other cars because they do not have computer

chip technology or key fobs. Officer Hinkle testified that typically, it is possible to start

such a car by inserting a slim, hard object into the ignition and forcing it to turn past the

locking pin. He also explained that it is often possible to access such a vehicle, even if

locked, without breaking a window or otherwise damaging the outside because keys

may be interchangeable or may be slightly modified to work on a variety of models.

       In addition to responding to reports of crime, Officer Hinkle testified that his work

as a patrol officer includes proactive work aimed at detecting ongoing criminal activity,

including identifying stolen vehicles. To that end, he said that during a typical 10-hour

shift, he may run the license plates of up to 100 vehicles. Officer Hinkle explained that

he checked the license plate of Lundgren's vehicle because it was a 1990s model


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No. 76874-3-1/5

Honda Accord that was occupied by several people, which is "typical of stolen cars."

Based on his experience, Officer Hinkle testified that drivers of stolen cars may

sometimes do a "heat check," which involves making a few sharp turns in order to

determine whether they are being followed. Officer Hinkle said that once the Accord

pulled into the shopping area parking lot, the occupants were "likely" aware of his

presence because the vehicle was moving slowly and were not many vehicles in the

parking lot.

       Officer Hinkle explained that he advised other officers in the area that he was

following a suspected stolen vehicle and requested a K-9 track because the pursuit of

stolen vehicles often leads to a vehicle pursuit or a foot chase. Finally, when asked

about the likely significance of gloves found next to the Accord, Officer Hinkle said it

was an indication that the person wearing the gloves did not want to leave fingerprint

evidence.

       Zietz claims that counsel performed deficiently by failing to object to Officer

Hinkle's testimony that:(1) stolen cars typically have multiple occupants,(2) a driver of

a stolen car may make multiple sharp turns in order to detect whether he or she is being

followed,(3) the occupants of the Accord were aware of his presence in the parking lot,

(4) occupants of stolen vehicles often flee, and (5) gloves indicate an intent to avoid

leaving fingerprint evidence.

       Zietz asserts first that his counsel was ineffective for failing to object to

inadmissible profile evidence. Profile evidence identifies a group of people as more

likely to commit a crime, and is inadmissible if it is used to lead to the conclusion that a

defendant must have committed the charged acts because he shared the



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No. 76874-3-1/6

characteristics of known offenders. State v. Braham, 67 Wn. App. 930, 937, 841 P.2d

785 (1992). In other words, testimony that implies guilt based on the characteristics of

known offenders is impermissible because it invites the jury to conclude that because of

a defendant's characteristics, he is statistically more likely to have committed the crime.

Braham,67 Wn. App. at 936.

       Here, none of the challenged testimony identified Zietz as a member of a group

with a propensity for criminal activity nor improperly implied guilt based on

characteristics he shares with other criminals. Officer Hinkle's testimony explaining that

he ran the license plate number of Lundgren's car because it was a late model Honda

with multiple occupants related to characteristics of the vehicle, not that characteristics

of Zietz. And Officer Hinkle testified that pursuit of stolen vehicles may lead to a foot or

vehicle chase not to imply Zietz's guilt, but to explain why he alerted other police officers

in the area and requested assistance. Officer Hinkle's testimony did not imply to the

jury that it should find Zietz guilty because of his characteristics or his association with a

particular group.

       Zietz also contends that his counsel was ineffective for failing to object to

impermissible opinion testimony on credibility or guilt. A witness may not express an

opinion, either directly or indirectly, on credibility or guilt and it is error to admit opinion

testimony which goes to a core element of the crime charged unless the testimony has

a substantial factual basis. State v. Kirkman, 159 Wn.2d 918, 927-28, 155 P.3d 125

(2007); State v. Farr-Lenzini, 93 Wn. App. 453, 462-63, 970 P.2d 313(1999). "The fact

that an opinion supports a finding of guilt does not necessarily make the opinion

improper," particularly where the opinion is supported by inferences from evidence.
No. 76874-3-1/7

State v. Blake, 172 Wn. App. 515, 523, 298 P.3d 769 (2012). Opinion testimony is

more likely to be improper if it recites or parrots a legal conclusion. City of Seattle v.

Heatlev, 70 Wn. App. 573, 581, 854 P.2d 658 (1993). "[T]estimony that is not a direct

comment on the defendant's guilt or on the veracity of a witness, is otherwise helpful to

the jury, and is based on inferences from the evidence is not improper opinion

testimony." Heatlev, 70 Wn. App. at 578.

       Zietz primarily relies on Farr-Lenzini, which involved a prosecution for attempting

to elude a police vehicle. In Farr-Lenzini, a Washington State Patrol trooper testified

that the defendant's driving pattern "exhibited to me that the person driving that vehicle

was attempting to get away from me and knew I was back there and refusing to stop."

Farr-Lenzini, 93 Wn. App. at 458. On appeal, the court reversed the conviction because

the officer's opinion directly addressed a "core element" of the charged offense, namely

whether the defendant was willfully eluding a law enforcement officer, and was not

supported by an adequate factual basis. Farr-Lenzini, 93 Wn. App. at 462, 465.

       Here, unlike the trooper in Farr-Lenzini, Officer Hinkle did not offer an opinion

th6t directly addressed a core element of the charged offense. The only disputed issue

was whether Zietz knew that the car he was driving was stolen. The officer's testimony

about whether the occupants were aware of his presence, about "heat check[ing]," and

about the possible purpose of gloves did not express opinion about Zietz's guilt or

knowledge. There was also a factual basis for the testimony because it was based on

reasonable inferences drawn from the officer's direct observations and from his prior

experience.




                                             -7-
No. 76874-3-1/8

       We also cannot say that counsel's failure to object was not a legitimate trial tactic

or strategic, given that repeated objections may well have served to highlight the

testimony. And with respect to the testimony concerning the likely purpose of gloves,

instead of objecting, counsel effectively minimized the significance of the testimony by

emphasizing that the police report did not mention any gloves found in or around the

Accord. Counsel also forced the officer to admit that he had not even noticed the

gloves until he viewed a photograph at trial. Counsel's questions also made it clear that

the officer did not see the driver wearing or discarding gloves.

       Zietz fails to establish ineffective assistance of counsel based on counsel's

failure to object.

                                           Mistrial

       Zietz next contends that the trial court erred in denying his motion for a mistrial.

We disagree.

       A mistrial is appropriate only when the defendant has been so prejudiced that

nothing short of a new trial can guarantee a fair trial. State v. Jungers, 125 Wn. App.

895, 901-02, 106 P.3d 827(2005). Only errors affecting the outcome of the trial are

deemed prejudicial. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). To

determine the effect of an irregularity, courts examine "(1) its seriousness;(2) whether it

involved cumulative evidence; and (3) whether the trial court properly instructed the jury

to disregard it." Hopson, 113 Wn.2d at 284.

       "We review the trial court's denial of a motion for a mistrial for abuse of

discretion." Jungers, 125 Wn. App. at 902. A trial court abuses its discretion when it

bases its decision on unreasonable or untenable grounds. State v. Rohrich, 149 Wn.2d


                                             -8-
No. 76874-3-1/9

647, 654, 71 P.3d 638 (2003). The trial court is in the best position to determine if a trial

irregularity caused prejudice. State v. Perez-Valdez, 172 Wn.2d 808, 819, 265 P.3d

853(2011).

        The prosecutor asked Officer Hinkle to describe Zietz's demeanor at the time of

his arrest. Officer Hinkle responded:

        It was very fidgety. He was sweating, and based on my experience he
        appeared to be under the influence of some sort of stimulant.

Counsel objected and the prosecutor offered to rephrase. The court promptly instructed

the jury to "disregard the answer."

        Zietz moved for a mistrial. After hearing argument, the court denied the motion.

The court concluded that because the testimony was limited in scope, the objection was

prompt, and the jury was instructed to disregard the answer, there was no "prejudice

sufficient to warrant a mistrial."' Zietz contends that the court abused its discretion in

denying his motion.

        The court's ruling was tenable. While Zietz claims that Officer Hinkle's testimony

was a clear violation of the court's in limine ruling, he overstates the scope of the ruling.

The defense moved pretrial to exclude evidence of "drugs and paraphernalia" recovered

from the stolen vehicle. Based on the State's position that it did not intend to introduce

the drug evidence, the court granted the motion. The testimony about Zietz's

appearance and his appearance of being under the influence of a stimulant at the time

of arrest, while objectionable, did not contravene the court's pretrial ruling.




         1 Both the trial court and the prosecutor were apparently unable to hear Officer Hinkle's reference
to a stimulant over defense counsel's objection, but for the purpose of the mistrial motion, the trial court
assumed that the jury heard the officer's entire response.

                                                    -9-
No. 76874-3-1/10

       To the extent that an irregularity occurred here, it was also not extremely serious.

Courts have found serious and incurable irregularities where the jury has heard

inadmissible testimony that is inherently prejudicial and logically relevant to the current

charge. For example, the case Zietz principally relies on, State v. Escalona, 49 Wn.

App. 251, 252, 742 P.2d 190 (1987), involved a charge with assault with a deadly

weapon. Despite the court's prior exclusion of any reference to the defendant's prior

conviction for the same crime, a witness stated that the defendant "ha[d] a record and

had stabbed someone." Escolona, 49 Wn. App. at 252-53. The irregularity could not be

cured by instruction, in part because of the "logical relevance" between the witness's

statement and the charged crime. Escolona, 49 Wn. App. at 256. The court found it

likely that the jury would conclude that the defendant had acted in conformity with the

"assaultive character" he had demonstrated in the past. Escolona, 49 Wn. App. at 256.

Similarly, in State v. Babcock, 145 Wn. App. 157, 165-66, 185 P.3d 1213(2008), the

admission of hearsay testimony about a dismissed child molestation charge in a child

rape case was an extremely serious irregularity where the acts related to the dismissed

charge were so similar to those involved in the rape charge that it would be inherently

difficult for the jury to disregard the testimony.

       Here, in contrast, the officer did not indicate that Zietz had a propensity to take

motor vehicles without permission or that he had ever been convicted of a similar crime.

Nor was the statement likely to make a significant impression on the jury. Based on the

events the witnesses described, the jury could have concluded that there were several

plausible explanations as to why Zietz was sweaty and appeared to be nervous when

he was apprehended.



                                             -10-
No. 76874-3-1/11

       While the testimony was not cumulative of other evidence presented, the

reference to a possible stimulant was isolated and fleeting. And the court immediately

instructed the jury to disregard testimony about third party statements. Absent evidence

to the contrary, we presume that the jury followed the trial court's instructions. Kirkman,

159 Wn.2d at 928.

       As a result, there is not a substantial likelihood that Officer Hinkle's statement

affected the jury's verdict. The brief reference to a stimulant was not so damaging as to

warrant a mistrial and the court's curative instruction was sufficient to alleviate any

prejudice that may have resulted. The trial court did not abuse its discretion.

       Affirmed.




                                                    igi
                                                     "  , W6•----
                                                        4




WE CONCUR:




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