                                                                                                FILED
                                                                                        COLIR Of' APPEALS
                                                                                             M13101 xI

                                                                                       2013 SEP 17 AN v:4.
                                                                                                         0
      IN THE COURT OF APPEALS OF THE STATE OF WAS

                                             DIVISION II

STATE OF WASHINGTON,                                                    No. 43180 7
                                                                                  -


                                   Respondent,

           V.



ARTHUR F.KERCHER III,                                            UNPUBLISHED OPINION




           JOHANSON, A. . Arthur F. Kercher III,appeals his bench trial conviction for failure
                     J.
                      C     —


to register as a sex offender claiming ( 1) improper opinion testimony, (2) prosecutorial

misconduct, 3)
            ( reliance on inadmissible impeachment evidence, and (4)insufficient evidence to

sustain his conviction. Of the claims he preserved for,
                                                      review, Kercher demonstrates no error,

and accordingly, we affirm his conviction.

                                                   FACTS


           In 2007, Kercher was convicted of second degree rape, RCW 9A. 4. As a result, he
                                                                     050.
                                                                       4

must      register   his home address with the Pierce   County Sheriff. On March 11, 2011, when

Puyallup Police Detective Joseph Pihl performed a registration verification check, Kercher's

registered home address was at the Puyallup residence of his father, Arthur F.Kercher Sr.' Only
Kercher's sister and brother, Lauren and Josh Kercher, were at the address when Detective Pihl

arrived.




1
    The    appellant   and his father share the   same name.   For clarity, we refer to the appellant as
    Kercher"and his father as "Arthur."
No. 43180 7 II
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         Lauren provided Detective .Pihl a written statement: "My brother, Arthur Kercher, has

moved out about two months ago and is currently staying with his mother, Erin [Taggart]. He

moved out with       a   friend DJ, but    shortly after that, he   moved in with his mom." 1 Verbatim


Report of Proceedings ( VRP) at             56.    During the verification check, Detective Pihl also

telephoned Arthur, who said that Kercher had moved out " pproximately two months prior."2
                                                       a
VRP at 120.        Detective Pihl then reported that Kercher had "absconded," no longer lived at
                                                                            or

his   registered   address.   1 VRP at 45.        As a result, the State charged Kercher with failure to

register as a sex offender, RCW 9A. 4.
                                132.
                                  4

         At a bench trial, Lauren's testimony was less definitive than her written statement, which

the trial court admitted into evidence and from which Lauren read              during   her   testimony. She

testified that even if she had not seen Kercher at home for two months, he might still have lived

there. Arthur testified that he was uncertain when Kercher actually moved to Taggert's home

because Kercher had been slowly moving his belongings from one house to the other. Arthur

explained that he thought Kercher told him that he was moving out a day or two before Detective

Pihl's visit. Taggert thought Kercher had moved in with her after his March 17 birthday, but

Kercher actually registered at Taggart's address on March 14.

          Detective Pihl testified about what he observed during his verification check at Arthur's

home, his experience, and the manner in which he typically conducts these checks. Detective
Pihl also testified in rebuttal that Arthur's March 11 representations differed dramatically from

those he offered at trial. Kercher objected, and the State expressed its intent to use Arthur's prior

inconsistent statements       only   for   impeachment purposes. Then during closing arguments, the




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No. 43180 7 II
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State drew attention to the discrepancies between Arthur's March 11 phone conversation and his

trial testimony.
      '

       The trial court entered findings of fact and conclusions of law, and it found Kercher

guilty of failing to register as a sex offender. Kercher appeals.
                                            ANALYSIS


                                      I. OPINION TESTIMONY


       Kercher claims, for the first time on appeal, that Detective Pihl improperly offered

opinion testimony, stating his personal belief that Kercher was guilty. Even assuming Kercher

preserved this issue for appeal, Detective Pihl's testimony was not improper opinion evidence.
                            A. Standard of Review and Rules of Law


       Generally, parties may not claim errors for the first time on appeal. State v. Kirkman, 159

Wn. d 918, 926 155 P. d 125 (2007).Appellants may raise a claim for the first time on appeal
  2                 3

if it is a "manifest error affecting a constitutional right."RAP 2. ( "[
                                                                 a)( But a]
                                                                  3).
                                                                  5       dmission of

witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable
as a `manifest' constitutional error."Kirkman, 159 Wn. d at 936. To merit appellate review in
                                                     2

these circumstances, a defendant must show that the alleged error caused "actual prejudice" or

practical and identifiable consequences"at his trial. Kirkman, 159 Wn. d at 935,.
                                                                     2

        No witness, whether an expert or a lay person, may " estify to his opinion as to the guilt
                                                           t

of a defendant, whether by direct statement or inference."State v. Black, 109 Wn. d 336, 348,
                                                                                2

745 P. d 12 (1987).The fact that a witness's testimony makes the defendant's guilt more likely,
     2

however, shows that the testimony is relevant. See ER 401. It does not mean the testimony was

necessarily improper. City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P. d 658 (1993),
                                                                             2


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No. 43180 7 II
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review   denied,   123 Wn. d 1011 ( 1994).
                         2                    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 [trier of fact], is
                                                                                              and

based    on   inferences from the evidence is not   improper opinion testimony." Heatley, 70 Wn.

App. at 578.

         Lay witnesses may give opinions and make inferences based upon rational perceptions

that will assist the trier of fact in understanding the witness's testimony and that are not based on

scientific or specialized knowledge. State v. Montgomery, 163 Wn. d 577, 591, 183 P. d 267
                                                                2                  3

2008).So, a witness may properly express his opinion on a material issue of fact as long as the

witness does not tell the trier of fact what conclusion to reach. Montgomery, 163 Wn. d at 591.
                                                                                    2

                                            B. Analysis

         Here, though he raised no trial objection, Kercher claims constitutional error on appeal,

his right to a fair trial. He claims that two of Detective Pihl's statements caused actual prejudice:

1) statement that, If we believe that the person is not still living at the address, we refer that
  his              "

to the prosecutor's office," (2) classification of Kercher as "absconded." 1 VRP at 36,
                           and  his

45.     Assuming, without deciding, that Kercher preserved this issue for appeal, Kercher's

argument fails because Detective Pihl's testimony was not improper opinion testimony.

         After visiting Kercher's registered address, Detective Pihl classified Kercher as

absconded"or " ot in compliance"with registration requirements. 1 VRP at 45. He made this
             n

classification after phoning Arthur and taking Lauren's written statement that explained that
Kercher had moved out two months earlier. Detective Pihl also described what he observed at

Arthur's home, his experience, and how he typically conducts registration verification checks.




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No. 43180 7 II
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All of these factors contributed to Detective Pihl's opinion that Kercher no longer lived at his

registered address.

       As Division One of this court held in Heatley:

       The fact that an opinion encompassing ultimate factual issues supports the
       conclusion that the defendant is guilty does not make the testimony an improper
       opinion on guilt. More important, the officer's]
                                          [              opinion was based solely on his
       experience and his observation . . . The evidentiary foundation "directly and
       logically" supported the officer's conclusion. Under these circumstances, the
       testimony did not constitute an opinion on guilt.

Heatley, 70 Wn. App. at 579 80 ( itations omitted).Here,Kercher claims that because Detective
                            - c

Pihl classified him     as "   having ` absconded, "' his testimony was an improper opinion on

Kercher's   guilt. But, Detective Pihl rationally based this classification on his experience,

observations   during   the verification check, and Lauren's written statement.   This evidence


supports Detective Pihl's classification and, as in Heatley, it does not constitute an improper

opinion.

                                    II.PROSECUTORIAL MISCONDUCT


       Kercher argues that the prosecutor, during closing argument, committed misconduct by

improperly inviting the trial court to rely on impeachment evidence, Arthur's March 11

telephone statements, as substantive evidence of guilt. Kercher, however, failed to preserve this

issue for appeal.

                                         A. Standard of Review


       To prevail on a prosecutorial misconduct claim, a defendant must show that in the
context of the record and all the trial circumstances, the prosecutor's conduct was improper and

prejudicial. State v. Thorgerson, 172 Wn. d 438, 442, 258 P. d 43 (2011).To show prejudice, a
                                        2                  3



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No.43180 7 II
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defendant must show a substantial likelihood that the misconduct affected the verdict.

Thorgerson, 172 Wn. d at 442 43. If a defendant fails to object to misconduct at trial,he fails to
                  2          -

preserve the issue unless he establishes that the misconduct was so flagrant and ill intentioned

that   an   instruction would not have cured the     prejudice. Thorgerson,   172 Wn. d at 443. We
                                                                                    2


consider the prosecutor's alleged improper conduct in the context of the total argument, the

issues in the case, the evidence addressed in the argument. State v. Anderson, 153 Wn. App.

417, 430, 220 P. d 1273 (2009),
               3              review denied, 170 Wn. d 1002 (2010).
                                                   2

                                                B. Analysis

            Kercher contends that the prosecutor erred by inviting the trial court to use Arthur's

statements as substantive evidence of Kercher's guilt when the prosecutor argued in closing:

            Mr. Kercher, Senior, informed the officer that the defendant had moved out
            approximately two months prior and that initially he moved out with a friend but
            that hasn't worked out and so the defendant had then moved in with his mother.
                   At no point in time during that conversation did Mr. Kercher Senior
            express any confusion to the detective about where his son was actually residing,
            and at no point in time during the conversation did Mr. Kercher Senior tell the
            detective that the defendant was still residing with him.

2 VRP at 123. Kercher did not object to this argument at trial. So, to raise this issue for the first

time on appeal, he must show that the prosecutor's argument constituted flagrant and ill -
intentioned conduct that resulted in     an   incurable   prejudice. See Thorgerson, 172 Wn. d at 443.
                                                                                           2

But Kercher does not demonstrate how this argument constituted flagrant or ill-
                                                                              intentioned

conduct. He does not even attempt to show how the argument invited the trial court to consider

impeachment evidence for substantive evidence of guilt. The prosecutor first noted that Arthur

initially informed Detective Pihl of his impressions regarding when Kercher moved out, and only
later at trial did Arthur offer a much different account of his understanding as to when Kercher



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No. 43180 7 II
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moved. Kercher does not show how this argument was anything more than the prosecutor using

impeachment evidence     to   undermine Arthur's    credibility.   Accordingly, Kercher does not

demonstrate flagrant and ill-
                            intentioned misconduct, so he did not preserve his prosecutorial

misconduct claim for appeal.

                      III. ALLEGED RELIANCE ON IMPEACHMENT EVIDENCE


       Kercher next argues that the trial court improperly relied on impeachment evidence as

substantive evidence to find Kercher guilty. We disagree.

                              A.Standard of Review and Rules of Law


       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 Hearsay
evidence is,   generally, inadmissible.   ER 802.     Evidence that would otherwise constitute

inadmissible hearsay, however, may be admissible when offered for impeachment purposes to

undermine a witness's credibility. State v. Burke, 163 Wn. d 204, 219, 181 P. d 1 ( 2008).
                                                         2                  3

       We presume that a trial judge, because she or he is knowledgeable about evidence rules,

will separate admissible evidence from the inadmissible. State v. Miles, 77 Wn. d 593, 601, 464
                                                                              2
P. d 723 ( 1970).
 2                   This presumption is rebuttable, however, and may be overcome upon a

showing that the trial court's verdict "is not supported by sufficient admissible evidence" or if

the judge relied on inadmissible evidence to make essential findings that it,otherwise, would not
have made. State v. Read, 147 Wn. d 238, 245 46,53 P. d 26 (2002).
                                2            -      3

                                           B. Analysis

       Here, during rebuttal, when the prosecutor questioned Detective Pihl about his phone

conversation with Arthur, Kercher objected, and the State provided that it offered Detective


                                                7
No. 43180 7 II
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Pihl's testimony for   impeachment       purposes.     Detective Pihl then testified that Arthur initially

said that Kercher had moved out two months before their March 11 phone conversation.

Because the State did not offer this testimony to prove the truth of the matter assertedthat

Kercher failed to register after moving out of Arthur's home but rather to impeach Arthur, the
                                                             —

statement did not constitute hearsay. See ER 801.

       We next analyze whether the trial court substantively relied on this impeachment

evidence   as   substantive evidence of Kercher's        guilt. Kercher identifies finding of fact XII,

claiming that the trial court improperly relied upon Arthur's conversation with Detective PH as

substantive evidence of guilt. Finding of fact XII states:

               That Lauren Kercher utilized a phone from within the residence to contact
       her father, Arthur Kercher, II. That Lauren then provided the phone to Detective
       Pihl. That Detective Pihl         spoke   with Arthur Kercher, II      on   the   phone.   That

       Arthur Kercher, II reported to Detective Pihl that defendant had moved out of his
       residence approximately two months prior, and that defendant had initially moved
       out to    reside with   a   friend but that   living arrangement did   not work out. That

       Arthur Kercher, II then reported to Detective Pihl that defendant had moved in
       with his mother.


Clerk's Papers at 14. Though the trial court made a finding relating to Detective Pihl's phone

conversation with Arthur, Kercher fails to show that the trial court improperly relied on the

impeachment evidence as substantive evidence of Kercher's guilt.

       In fact, contrary to Kercher's assertion that the trial court improperly relied on this

evidence to find Kercher guilty, in announcing its decision, the trial court expressly stated, the
                                                                                               "

State has to produce substantive evidence, not merely impeachment evidence, suggesting that the

defendant did not reside there at least for the three days or so prior to the time that he registered

on March 14th." 2 VRP at 133 (emphasis added). Therefore, the record clearly demonstrates




                                                        E?
No. 43180 7 II
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that the trial court was mindful to use only valid evidence in drawing its legal conclusions.

Kercher does not demonstrate how finding of fact XII proves that the trial court improperly

relied on Detective Pihl's impeachment testimony as evidence of Kercher's guilt or that it led the

trial court to make   an "essential   finding[ ] that it otherwise would not have made." See Read,

147 Wn. d at 246. Accordingly, Kercher does not show a trial court error.
      2

                                   IV.SUFFICIENCY OF THE EVIDENCE


       Finally, Kercher argues that if the trial court had not erred in considering Detective Pihl's

impeachment testimony and opinion testimony, insufficient evidence would remain to sustain

Kercher's conviction. But because Kercher did not demonstrate that the trial court relied on any

improper evidence, his sufficiency claim fails.

       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

040,
2.6.it is so ordered.
 0

                                                          t         S




                                                                   Johanson, A. .
                                                                             J.
                                                                              C
We concur: / )




                  Penoyaj/',
                           1.


                      Fearing, J




                                                   0
