                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           March 5, 2019



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 50064-7-II

                                Respondent,
                                                              UNPUBLISHED OPINION
        v.

 SHAUN CHRISTINE JOHNSON,

                                Appellant.


       MAXA, C.J. – Shaun Johnson appeals her conviction of vehicular assault that arose from

an accident in which her car went off the road and struck a pedestrian. The jury was instructed

that to convict Johnson of vehicular assault they had to find that she was under the influence of

any drug.

       We hold that (1) the trial court did not err in denying her motion to suppress evidence

related to her admission that she used methamphetamine despite a prior illegal search of her

purse that revealed methamphetamine, (2) the trial court did not err in admitting opinion

testimony (a) from a drug recognition expert (DRE) that Johnson was impaired by something

other than pain medicine and (b) from a lay witness that Johnson’s behavior was similar to the

behavior of people she had seen who were under the influence of methamphetamine, (3) the trial

court did not violate her confrontation rights by allowing the officer to testify about hearsay

statements made by hospital staff about Johnson’s pain medication, (4) the trial court’s

admission of certain testimony was not an improper judicial comment on the evidence, (5) the
No. 50064-7-II


information was not deficient and the trial court did not err in its to-convict jury instruction even

though neither identified the defendant’s negligence as an element of vehicular assault, (6) the

trial court did not err in rejecting a proposed jury instruction on DRE protocol, (7) Johnson’s

claim that prosecutor committed misconduct by introducing improper evidence and misstating

the burden of proof in closing argument fails, and (8) defense counsel did not engage in

ineffective assistance of counsel by not objecting to the alleged prosecutorial misconduct.

       Accordingly, we affirm Johnson’s conviction of vehicular assault.

                                              FACTS

Accident

       In June 2013, Johnson drove off a road in Battle Ground and into a ditch. Johnson was

injured in the accident.

       One of the first people to come upon the accident scene was Karin Nelson. Nelson

stayed with Johnson and kept her talking until paramedics arrived. Nelson thought Johnson was

acting fidgety and paranoid. Johnson kept saying that she could not find her phone or her pot.

Nelson previously had used methamphetamine and had observed others who were using

methamphetamine. Nelson believed that Johnson was high and that Johnson’s behavior was

similar to the behavior of people she had seen who were under the influence of

methamphetamine.

       Deputy Tim Gosch arrived at the scene. Johnson’s arm seemed to be broken and she was

transported to the hospital. Gosch searched Johnson’s purse to retrieve her driver’s license and

proof of insurance from her purse. He discovered baggies that contained suspected

methamphetamine.




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No. 50064-7-II


         Later, a tow truck operator discovered 16-year-old Justin Carey in dense vegetation

adjacent to the ditch. Carey had been waiting at a school bus stop and Johnson’s car struck

Carey as it left the road. Carey suffered serious injuries to both of his legs and ultimately one of

his legs had to be amputated as a result of the accident.

Assessment of Johnson for Impairment

         A DRE, Deputy Chris Luque, was called to assess Johnson at the hospital. Gosch briefed

Luque on what he knew from the accident scene, including that he had discovered

methamphetamine in Johnson’s purse. Luque saw Johnson approximately three hours after the

accident. The hospital staff told Luque that Johnson had been administered Fentanyl and

Dilaudid intravenously only a few minutes before he arrived.

         Luque conducted a few steps of the standard DRE exam. He performed a horizontal gaze

nystagmus (HGN) test, checked Johnson’s pupil dilation, took her pulse, and checked her blood

pressure on the vitals monitor. Luque found that Johnson did not have any nystagmus, but that

her pupil dilation and blood pressure were normal and her pulse was elevated. He also noted that

she was awake and alert. Luque believed that these results were unexpected because Johnson

had just been given heavy narcotic medication. He expected her pupils to be constricted, her

pulse and blood pressure to be down, and for Johnson to be groggy or sleepy.

         Luque questioned Johnson after reading her the Miranda1 warnings and receiving her

consent. Johnson told Luque that she had used methamphetamine and marijuana two days

before the accident. However, she denied using any drugs within 24 hours of the accident.

         Luque applied for a search warrant for Johnson’s blood to test for drugs. His search

warrant affidavit stated that Gosch had found methamphetamine in Johnson’s purse and that



1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


                                                 3
No. 50064-7-II


Johnson admitted using methamphetamine and marijuana two days before the accident. The

affidavit also stated that Luque expected Johnson’s vital signs to be low and for her to have

difficulty staying awake based on the amount of narcotics she had been given. A district court

judge issued the warrant.

         Pursuant to the warrant, Johnson’s blood was drawn later that day. Johnson’s blood

tested positive for methamphetamine.

First Trial and Appeal

         The State charged Johnson with vehicular assault and possession of a controlled

substance – methamphetamine. The amended information did not allege negligence as an

element of vehicular assault. After her first trial, Johnson was convicted of both offenses.

         On appeal, Division One of this court reversed the convictions based on a holding that

Gosch’s warrantless search of Johnson’s purse was illegal. State v. Johnson, 75038-1-I (Wash.

Ct. App. Jul. 18, 2016) (unpublished), http://www.courts.wa.gov/opinions/pdf/750381.pdf. The

court remanded for a new trial.2 Id.

Suppression Motion

         On remand, Johnson filed a motion to suppress any testimony by Luque and Nelson that

she was impaired or under the influence of methamphetamine and to suppress any testimony that

her blood test showed the presence of methamphetamine. The trial court held a hearing on the

motion.

         Luque testified at the hearing that he was a DRE with hundreds of hours of experience

over many years. He stated that he had been trained to identify when people were under the

influence of different categories of drugs. Luque testified about his examination of Johnson and



2
    On remand, the trial court apparently dismissed the possession charge.


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No. 50064-7-II


his findings as discussed above. He acknowledged that he did not perform the entire 12-step

DRE protocol. However, he believed based on his examination and observations that there was

probable cause to suspect that Johnson was under the influence of some kind of drug.

        Luque testified that he questioned Johnson about drug use and she told him that she had

used methamphetamine two days earlier. Gosch had told Luque that he found methamphetamine

in Johnson’s purse. But Luque stated that he would have asked Johnson about illicit drug use

even if he had not known about the methamphetamine in her purse.

        The trial court issued written findings of fact and conclusions of law. The court found

that Luque believed Johnson “was experiencing antagonistic effects of two or more different

types of drugs . . . and suspected that she was under the influence of one or more drugs, other

than the pain medications.” Clerk’s Papers at 165. The trial court ruled that Johnson’s

statements to Luque in the hospital were admissible and that the search warrant for Johnson’s

blood draw was supported by probable cause. Therefore, the court denied Johnson’s suppression

motion.

Trial

        At trial, Gosch testified about his investigation of the accident. But he did not testify

about his discovery of methamphetamine in Johnson’s purse or about Johnson’s admission to

him that she had used methamphetamine.

        Nelson testified that based on her own use of methamphetamine and her experience with

people using methamphetamine, she believed that Johnson was high and that Johnson’s behavior

was similar to the behavior of people she had seen who were under the influence of

methamphetamine.




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No. 50064-7-II


       Luque testified that the hospital staff told him Johnson had been administered narcotic

medications a few minutes before he arrived at the hospital. Johnson objected that Luque was

using a transcript of a prior proceeding to refresh his recollection when Luque could not recall

what he had said in that proceeding. The court overruled the objection. Johnson did not object

to the statements made by the hospital staff as hearsay.

       Luque also testified that, based on his experience and observations, Johnson was under

the influence of both a stimulant and the medical doses of narcotics given by the hospital staff.

Luque testified that he applied for a search warrant because he believed that she was “impaired

under something else besides the narcotic analgesics that were administered by the hospital

staff.” Report of Proceedings (RP) at 576.

       Defense counsel asked Luque whether he had presented the search warrant affidavit to a

judge in person or over the phone. Defense counsel also asked whether Johnson had consented

to a blood draw, to which Luque testified that Johnson was cooperative and would have willingly

provided her blood. The State then elicited testimony from Luque that accepting a suspect or

witness’s consent to take a blood draw was possible but subject to legal challenge. He stated that

obtaining a search warrant was safer because it gets approved by a judge.

       Carey’s mother, Janette Chumley, testified that Carey now had a prosthetic leg. She

testified that his prosthetic should be replaced every two years but that his insurance would not

pay for it. Chumley testified over Johnson’s relevance objection that it would cost them $90,000

to replace Carey’s prosthetic leg.

       Johnson proposed a jury instruction that listed all 12 steps of the DRE protocol, stated

that the DRE must base his or her conclusions on the totality of the evaluation, and stated that if




                                                 6
No. 50064-7-II


in doubt the DRE must find that the driver is not under the influence. The trial court did not

accept this proposed instruction.

       The court instructed the jury that to convict a defendant of vehicular assault it must find

beyond a reasonable doubt that (1) Johnson drove the vehicle, (2) Johnson’s driving proximately

caused substantial bodily harm to another person, (3) Johnson was under the influence of any

drug, and (4) that the accident occurred in Washington. Johnson did not propose a to-convict

instruction that included negligence as an element of vehicular assault.

       In closing argument, the prosecutor stated that the court proceeding was because of the

actions and choices of the defendant. Johnson’s trial counsel moved for a mistrial on the basis

that the prosecutor’s statement misstated the law and shifted the burden of proof onto the

defendant. The trial court denied the motion.

       The jury found Johnson guilty of vehicular assault. Johnson appeals her conviction.

                                           ANALYSIS

A.     SUPPRESSION MOTION

       Johnson argues that the trial court erred in denying her suppression motion regarding

Luque’s testimony that she was impaired or under the influence of methamphetamine and

regarding evidence that her blood test showed the presence of methamphetamine. She argues

that her admission to Luque that she used methamphetamine was tainted by the illegal search of

her purse, and that without her admission or the methamphetamine in her purse there was not

probable cause to support the search warrant for her blood test. We disagree.

       1.   Findings of Fact

       Initially, Johnson challenges several of the trial court’s findings of fact from the

suppression hearing. She argues that these findings are not supported by substantial evidence.




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No. 50064-7-II


       We review whether the trial court’s written findings are supported by substantial

evidence. State v. Froehlich, 197 Wn. App. 831, 837, 391 P.3d 559 (2017). Evidence is

substantial if it is enough to persuade a fair-minded person of the truth of the stated premise. Id.

We do not weigh conflicting evidence. State v. Boyer, 200 Wn. App. 7, 13, 401 P.3d 396 (2017).

Unchallenged findings are treated as verities on appeal. State v. Betancourth, 190 Wn.2d 357,

363, 413 P.3d 566 (2018).

       Here, Johnson challenges findings of fact 24, 26, 28, 29, 30, and 31. However, our

review of the record shows that each of these findings is plainly supported by evidence in the

record. Johnson merely argues that there was some evidence that contradicted the trial court’s

findings and that the record also could have supported slightly different findings. We hold that

substantial evidence supports these findings.

       2.    Evidence Untainted by Illegal Search

       As a general rule, evidence obtained through an illegal search must be suppressed.

Betancourth, 190 Wn.2d at 364. The exclusionary rule applies to evidence that was seized

during an illegal search, and also evidence derived indirectly from an illegal search, the so-called

“fruit of the poisonous tree.” Id.

       However, evidence is not automatically excluded simply because it was obtained at some

time after the illegal search. “For the exclusionary rule to apply, there must be some proximate

casual connection between the misconduct and the evidence.” State v. Mayfield, No. 95632-4,

slip op. at 20 (Wash. Feb. 7, 2019) http://www.courts.wa.gov/opinions/pdf/956324.pdf. The

exclusionary rule applies only if the evidence was obtained through exploitation of the illegality.

State v. D.E.D., 200 Wn. App. 484, 491, 402 P.3d 851 (2017); see also State v. Aydelotte, 35




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No. 50064-7-II


Wn. App. 125, 131, 665 P.2d 443 (1983) (“Evidence is inadmissible as ‘fruit of the poisonous

tree’ where it has been gathered by exploitation of the original illegality.”)

       Here, methamphetamine was discovered through Gosch’s illegal search of Johnson’s

purse. Johnson argues that her admission to Luque that she had used methamphetamine was

tainted by this unlawful discovery and by Gosch telling Luque about that discovery before Luque

spoke with Johnson at the hospital.

       However, Luque read Johnson her Miranda rights before he asked her about her drug

history. Johnson agreed to speak with him. Luque asked Johnson to perform some field sobriety

tests as part of his DRE protocol and she agreed to cooperate. There is no evidence that Johnson

agreed to cooperate only because she knew that Gosch had found methamphetamine in her purse.

       Further, part of Luque’s assessment included asking Johnson about her drug history.

Johnson stated that she had used methamphetamine two days earlier. Luque specifically stated

that he would have asked Johnson about her use of drugs even if Gosch had not told him about

the methamphetamine because it was a standard question in a DRE assessment. And Luque did

not reference Gosch’s search or the methamphetamine found in Johnson’s purse. As a result,

Luque did not exploit the prior illegal search.

       Johnson’s admission was not obtained directly or indirectly as a result of the illegal

search or through exploitation of that search. Accordingly, we hold that the trial court did not err

in denying Johnson’s suppression motion with regard to her admission to using

methamphetamine.3




3
 The parties both address the federal attenuation doctrine and whether that doctrine applies
under the Washington Constitution. Because we hold that there was no connection at all
between the illegal search and Johnson’s confession to Luque, we need not address that issue.


                                                  9
No. 50064-7-II


       3.    Validity of Search Warrant

             a.   Probable Cause Requirement

       Both the Fourth Amendment to the United States Constitution and article I, section 7 of

the Washington Constitution require probable cause to support the issuance of a search warrant.

State v. Figeroa Martines, 184 Wn.2d 83, 90, 355 P.3d 1111 (2015) (Fourth Amendment); State

v. Ollivier, 178 Wn.2d 813, 846, 312 P.3d 1 (2013) (article I, section 7). “Probable cause exists

when the affidavit in support of the search warrant ‘sets forth facts and circumstances sufficient

to establish a reasonable inference that the defendant is probably involved in criminal activity

and that evidence of the crime may be found at a certain location.’ ” Ollivier, 178 Wn.2d at 846-

47 (quoting State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217 (2003)). There must be “a nexus

between criminal activity and the item to be seized and between that item and the place to be

searched.” State v. Neth, 165 Wn.2d 177, 183, 196 P.3d 658 (2008).

       We review de novo a trial court’s assessment of probable cause at a suppression hearing,

giving deference to the magistrate’s determination. Id. at 182; see also State v. Dunn, 186 Wn.

App. 889, 896, 348 P.3d 791 (2015). This court considers only the information contained in the

affidavit supporting probable cause. Neth, 165 Wn.2d at 182.

       A search warrant affidavit must identify specific facts and circumstances from which the

magistrate can infer that evidence of the crime will be found at the place to be searched. See

State v. Maddox, 152 Wn.2d 499, 505, 98 P.3d 1199 (2004).

       In the context of the exclusionary rule, a search warrant may be valid despite references

in the affidavit to illegally obtained information if the affidavit contains otherwise sufficient facts

to establish probable cause independent of the illegally obtained information. Betancourth, 190




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No. 50064-7-II


Wn.2d at 369. In assessing probable cause, we must disregard all references to evidence

obtained in an illegal search. Id. at 368-69.

             b.   Analysis

       Here, the search warrant affidavit stated that Gosch had found methamphetamine in

Johnson’s purse. In evaluating probable cause, we cannot consider that unlawfully obtained

evidence. The affidavit also stated that Johnson had admitted that she used methamphetamine

and marijuana two days before the accident. As we concluded above, that statement was

obtained lawfully and can be used to assess probable cause. In addition, Luque also explained in

the affidavit how his observations of Johnson’s behavior and vital signs were inconsistent with

the fact that she recently had been given narcotic analgesics.

       We conclude that even striking all references to Gosch’s illegal search of Johnson’s

purse, the search warrant to draw Johnson’s blood was supported by probable cause.

Accordingly, we hold that the trial court did not err in ruling that probable cause supported the

search warrant and that the trial court did not err in denying Johnson’s suppression motion with

regard to the blood draw or blood test results.

B.     ADMISSION OF OPINION TESTIMONY

       Johnson argues that the trial court erred by admitting opinion testimony from Luque and

Nelson that Johnson appeared under the influence of drugs after the accident. We disagree.

       1.    Legal Principles

       ER 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as

an expert by knowledge, skill, experience, training, or education, may testify thereto in the form

of an opinion or otherwise.” Testimony should be admitted under ER 702 when (1) the witness




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No. 50064-7-II


is qualified as an expert, (2) the expert’s opinion is based on a theory generally accepted by the

scientific community, and (3) the expert’s testimony is helpful to the trier of fact. State v. Rafay,

168 Wn. App. 734, 784, 285 P.3d 83 (2012). We review a trial court’s decision to admit expert

opinion testimony under ER 702 for an abuse of discretion. State v. Green, 182 Wn. App. 133,

146, 328 P.3d 988 (2014).

       Practical experience may be sufficient to qualify a witness as an expert. State v.

Weaville, 162 Wn. App. 801, 824, 256 P.3d 426 (2011). Testimony is helpful when it concerns

issues outside common knowledge and is not otherwise misleading. State v. Groth, 163 Wn.

App. 548, 564, 261 P.3d 183 (2011). Courts should interpret helpfulness broadly and in favor of

admissibility. Id.

       A witness not testifying as an expert can offer opinions that are (1) rationally based on

the witness’s perceptions, (2) helpful to the trier of fact in understanding the witness’s testimony

or determining a fact in issue, and (3) not based on scientific, technical, or other specialized

knowledge covered by ER 702. ER 701; State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d

267 (2008). We review for an abuse of discretion a trial court’s admission of lay opinion

testimony under ER 701. State v. Blake, 172 Wn. App. 515, 523, 298 P.3d 769 (2012).

       Expert or lay opinion testimony is not objectionable merely because it embraces an

ultimate issue of fact. ER 704; State v. Quaale, 182 Wn.2d 191, 197, 340 P.3d 213 (2014).

However, allowing an otherwise inadmissible opinion that embraces an ultimate issue of fact

may be reversible error. Quaale, 182 Wn.2d at 199-200.

       2.    Luque’s Expert Opinion

       Luque testified that based on his observations Johnson was under the influence of both a

stimulant and narcotics given to her by the hospital staff and that he believed that she was




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No. 50064-7-II


impaired by something else besides the narcotics. Johnson argues that this testimony violated

the limitations the Supreme Court has placed on DRE testimony. We disagree.

             a.   DRE Testimony

       In State v. Baity, the Supreme Court held that a law enforcement officer qualified as a

DRE may provide expert testimony that a person’s behavior or physical attributes are consistent

with the use of certain categories of drugs. 140 Wn.2d 1, 17-18, 991 P.2d 1151 (2000).

However, the court stated a DRE witness cannot testify that a defendant exhibited a specific level

of intoxication or impairment. Id. at 17. And a DRE witness “may not testify in a fashion that

casts an aura of scientific certainty” over his or her opinion testimony. Id. at 17.

       In Quaale, the Supreme Court further addressed the appropriate parameters of opinion

testimony by a DRE expert witness. 182 Wn.2d at 193-202. In that case, an officer pulled over

a driver who was speeding. Id. at 194. The officer performed an HGN test and observed that the

defendant’s eyes bounced and had difficulty tracking the stimulus. Id. at 194. The officer did

not perform any other sobriety field tests. Id. The officer testified at trial that he formed an

opinion on whether the defendant was too impaired to operate a motor vehicle based on the HGN

test alone. Id. at 195. He testified that “[t]here was no doubt he was impaired.” Id.

       The court held that the officer’s testimony was inadmissible under Baity for two reasons.

Id. at 198-99. First, the officer “cast his testimony in a way that gave it an aura of scientific

certainty.” Id. at 198. The officer’s opinion implied that the HGN test could reveal whether

someone was intoxicated and impaired when the test merely showed physical signs consistent

with alcohol consumption. Id at 198-99.

       Second, the officer “testified to a specific level of intoxication when he stated that the

defendant was ‘impaired.’ ” Id. at 199. The court stated that “the conclusion that the defendant




                                                  13
No. 50064-7-II


was impaired rests in the premise that the defendant consumed a sufficient level of intoxicants to

be impaired. . . . the testimony implicitly includes a specific level of intoxication: that the

alcohol consumed impaired the defendant, which is the legal standard.” Id. But the HGN test

alone does not show specific levels of intoxication. Id.

       The court in Quaale distinguished City of Seattle v. Heatley, in which the court held that

an officer’s testimony that a defendant was “obviously intoxicated” and “affected” by alcohol

was admissible. 70 Wn. App. 573, 579-82, 854 P.2d 658 (1993). In that case, the officer did not

testify about technical procedures such as HGN tests or pupil dilation. Id. at 576. Instead, the

officer testified that his opinion was based on his observations and all the tests he gave the

defendant taken as a whole. Id. The court held that the officer’s testimony was admissible as lay

testimony because it was based on his experience and observations. Id. at 579-80. The court in

Quaale stated that unlike the officer in Heatley, the officer in Quaale based his opinion on expert

testimony, not lay testimony. Quaale, 182 Wn.2d at 201.

             b.   Analysis

       Here, Luque testified extensively about the DRE protocol process and his experience in

conducting DRE exams. He testified that he did not perform the entire 12-step DRE protocol,

but that he performed an HGN test and observed Johnson’s pupil dilation, heart rate, and blood

pressure. Luque also stated that he generally observed Johnson’s movements and her responses

to questions.

       Based on all of his observations and his experience as a DRE, Luque thought Johnson’s

vital signs and demeanor were inconsistent with what he knew about the effects of the narcotics

that the hospital staff had given her. Luque stated that he believed Johnson could be impaired by

some drug in addition to the medical doses of narcotics that she had received.




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No. 50064-7-II


       Luque’s testimony is distinguishable from the officer’s testimony in Quaale. First,

Quaale focused solely on testimony regarding the HGN test. The court in Quaale emphasized

that the officer’s opinion was improper under the admissibility of scientific expert testimony

standard discussed in Baity because the officer relied upon the HGN test alone and “the HGN

test alone cannot reveal specific levels of intoxication.” Quaale, 182 Wn.2d at 199. But Luque

did not rely on the HGN test. Therefore, Quaale has limited application here.

       Second, unlike the officer in Quaale, Luque did not testify in a way that gave his opinion

the aura of scientific certainty. He did not express any degree of certainty and did not state that

there was no doubt that Johnson was under the influence or impaired. He did not even give an

opinion as to what type of drug she may have ingested.

       Third, Luque did not expressly state that Johnson’s ability to operate a vehicle was

impaired. In Quaale, the officer’s objectionable statement came in response to a specific

question of whether the defendant’s ability to operate a motor vehicle was impaired. Id. at 195.

In contrast, Luque merely stated that in his opinion Johnson was experiencing an antagonistic

effect between an unknown stimulant and narcotics. Luque never gave an opinion on whether

that stimulant would have impaired her ability to operate a motor vehicle.

       Johnson argues that Luque’s testimony was inadmissible because Luque was required to

follow all 12 steps of the DRE protocol before forming an opinion and he improperly suggested a

level of certainty by stating that his training required him to achieve at least 90 percent accuracy.

But Johnson cites no authority for the proposition that a DRE officer must perform all 12 steps of

the protocol to testify about his or her observations of a defendant.




                                                 15
No. 50064-7-II


       We conclude that Luque’s expert testimony was admissible and therefore that he did not

give an impermissible opinion on Johnson’s guilt. Accordingly, we hold that the trial court did

not abuse its discretion in admitting Luque’s opinion testimony.

       3.   Nelson Testimony

       Nelson testified that she believed that Johnson was high and that Johnson’s behavior was

similar to other people she had seen under the influence of methamphetamine. Johnson argues

that Nelson’s testimony constituted an impermissible opinion on guilt because Nelson did not

qualify as an expert or lay witness. We disagree.

       “A lay witness may express an opinion on another person’s intoxication when the witness

had the opportunity to observe the affected person.” Quaale, 182 Wn.2d at 201. Quaale

addressed alcohol intoxication, not intoxication caused by drugs. See id. at 200-01. However,

there is no reason to distinguish between lay opinions regarding alcohol intoxication and

regarding drug intoxication if the witness has enough experience observing drug intoxication to

assist the jury. See State v. Brett, 126 Wn.2d 136, 161-62, 892 P.2d 29 (1995) (affirming the

admission of a lay opinion that the defendant did not appear to be under the influence of alcohol,

drugs, or any other substance based on the witness’s prior experience as a police officer); see

also People v. Souva, 141 P.3d 845, 850 (Colo. App. 2005) (stating that not distinguishing

between lay testimony about alcohol intoxication and lay testimony about drug intoxication is

supported by a majority of opinions from other states).

       As required under ER 701, Nelson’s testimony was based on observations she made

while she was sitting with Johnson immediately after the accident. In addition, Nelson’s

testimony was helpful to the jury because of her prior experience with methamphetamine.

Nelson testified that she had used methamphetamine and had observed other people who were




                                                16
No. 50064-7-II


under the influence of methamphetamine. And Nelson’s testimony was not based on scientific,

technical, or other specialized knowledge. Therefore, Nelson’s testimony met the three

requirements of ER 701. See Montgomery, 163 Wn.2d at 591.

       Johnson argues that Nelson did not qualify as an expert witness. But the trial court

admitted Nelson’s testimony as a lay witness under ER 701. And Nelson’s opinion was not

based on any expertise or specialized medical knowledge, which would have disqualified her as

a lay witness under ER 701. See Montgomery, 163 Wn.2d at 591. Instead, her opinion was

based on her observations in light of her experience.

       We conclude that Nelson’s testimony was admissible opinion testimony of a lay witness

under ER 701 and therefore that Nelson’s testimony was not objectionable even though it

embraced an ultimate issue of fact. Accordingly, we hold that the trial court did not abuse its

discretion in admitting Nelson’s testimony.

C.     ADMISSION OF HEARSAY STATEMENTS REGARDING MEDICATION

       Johnson argues that the trial court erred by admitting Luque’s testimony about hearsay

statements from hospital staff regarding the administration of narcotic medication to Johnson,

and also that the admission of this testimony violated her confrontation clause rights. We decline

to consider this argument.

       1.   Failure to Object in Trial Court

       Johnson did object to Luque’s testimony on hearsay grounds, but only because Luque

used a document to refresh his recollection. Johnson did not object based on an argument that

the statements themselves were inadmissible hearsay. “A party may assign evidentiary error on

appeal only on a specific ground made at trial.” State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d




                                                17
No. 50064-7-II


125 (2007). Therefore, we hold that Johnson cannot assert her hearsay argument for the first

time on appeal.

       It also is undisputed that Johnson did not object to Luque’s testimony on confrontation

clause grounds. However, Johnson argues that she may raise a confrontation clause issue for the

first time on appeal under RAP 2.5(a)(3) because it affects a constitutional right.

       Division One of this court has held that, unlike other constitutional issues, challenges

based on the confrontation clause cannot be raised for the first time on appeal. State v. Sage, 1

Wn. App. 2d 685, 701-03, 407 P.3d 359 (2017), review denied, 191 Wn.2d 1007, 424 P.3d 1210

(2018) (citing Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d

314 (2009)); State v. O’Cain, 169 Wn. App. 228, 240, 279 P.3d 926 (2012) (holding the

defendant has an “obligation to assert the right to confrontation at or before trial” in order to

preserve the error for appeal). However, this court in a footnote declined to follow O’Cain and

stated that a confrontation clause claim raised for the first time on appeal must be evaluated

under RAP 2.5(a)(3), at least until the Washington Supreme Court overrules cases decided

before Melendez-Diaz dictating that result. State v. Hart, 195 Wn. App. 449, 458-59 n.3, 381

P.3d 142 (2016).

       We decline to resolve this apparent split in the divisions. Even if RAP 2.5(a)(3) applies,

Johnson cannot show that her confrontation clause claim involves manifest error.

       2.    Manifest Error

       Under RAP 2.5(a), this court generally will not review claims raised for the first time on

appeal. However, RAP 2.5(a)(3) permits a party to raise such claim if the issue amounts to a

“manifest error affecting a constitutional right.” To determine whether we consider an

unpreserved error under RAP 2.5(a)(3), this court inquires whether (1) the error is truly of a




                                                 18
No. 50064-7-II


constitutional magnitude, and (2) the error is manifest. State v. Kalebaugh, 183 Wn.2d 578, 583,

355 P.3d 253 (2015). A confrontation clause claim is constitutional, so the question here is

whether Johnson’s claim involves a manifest error.

       3.   Testimonial Hearsay

       Under the confrontation clause, a defendant has the right to confront any witnesses

testifying against him or her. State v. Lui, 179 Wn.2d 457, 470, 315 P.3d 493 (2014). To trigger

the confrontation clause, an out-of-court statement must be made by a “witness against” the

defendant. Id. at 481-82. “If the declarant makes a factual statement to the tribunal, then he or

she is a witness. If the witness’s statements help to identify or inculpate the defendant, then the

witness is a ‘witness against’ the defendant.” Id. at 482. Out-of-court testimonial statements

must satisfy both requirements to implicate the defendant’s confrontation clause rights. Id. at

481-82.

       The distinction between out-of-court statements that implicate the confrontation clause

and those that do not was addressed in Lui. 179 Wn.2d at 486-95. In that case, laboratory

analysts had conducted forensic tests on DNA, as well as the victim’s body. Id. at 464-66.

However, the laboratory director ultimately testified as an expert witness, relying upon a

document summarizing the lab test results. Id. at 466. The court held that the lab analysts were

not witnesses against the defendant because the raw data from the tests was not adverse to the

defendant on its own. Id. at 489. “Absent that expert analysis, we are left with an abstract graph

or set of numbers that has no bearing on the trial.” Id. The court added that the purpose of the

confrontation clause was effectively served by cross-examining the testifying expert: “Under our

test, [the lab director] was the only person involved in [the] testing process who made a




                                                 19
No. 50064-7-II


statement of fact that tended to inculpate [the defendant]. Thus [the director] was exactly the

right analyst to satisfy the strictures of the confrontation clause.” Id. at 493.

       The court in Lui also rejected the argument that the doctor who took temperature readings

of the victim’s body was a witness against the defendant. Id. The court stated that the doctor’s

data had no relevance until an expert used that data to estimate the range for the time of death.

Id. “[T]hese points of data could not inculpate [the defendant] without the intervening analysis

of an expert.” Id.

       Here, Luque testified that as part of that investigation the hospital staff told him Johnson

had been administered Fentanyl and Dilaudid. Luque stated that whether someone had received

medication was a fact that a DRE would need to know in conducting a DRE assessment.

       This case is similar to Lui. 179 Wn.2d at 492-93. Here, the medical information is not

meaningful to the jury on its own and, without further analysis from an expert, was not helpful to

the State or the defendant. The jury could only make meaning of the fact that Johnson had been

given narcotic analgesics, and that fact only inculpated Johnson when it provided the basis of

Luque’s expert opinion that Johnson was under the influence of something else in addition to the

narcotics.

       Accordingly, we hold that Johnson’s confrontation clause claim is not manifest error

because the unknown hospital staff member was not a witness against Johnson for purposes of

the confrontation clause. Therefore, we decline to consider that claim.

D.     JUDICIAL COMMENT ON EVIDENCE

       Johnson argues that Luque’s statement that a judge approved his search warrant implied

that a judicial officer agreed with his assessment of Johnson’s impairment and was a judicial

comment on the evidence. We disagree.




                                                  20
No. 50064-7-II


       Under article IV, section 16 of the Washington Constitution, “[j]udges shall not charge

juries with respect to matters of fact, nor comment thereon, but shall declare the law.” This

provision prohibits judges from conveying their personal opinions on the merits of the case to the

jury. State v. Higgins, 168 Wn. App. 845, 859, 278 P.3d 693 (2012).

       A statement by the court constitutes a comment on the evidence if the court’s
       attitude toward the merits of the case or the court’s evaluation relative to the
       disputed issue is inferable from the statement. The touchstone of error in a trial
       court’s comment on the evidence is whether the feeling of the trial court as to the
       truth value of the testimony of a witness has been communicated to the jury.

State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (emphasis added) (citation omitted).

       Testimony by a witness cannot be an unconstitutional judicial comment on the evidence

because the constitution only prohibits the trial judge from expressing his or her personal

opinion on the evidence. See In re Detention of Pouncy, 144 Wn. App. 609, 621-22, 184 P.3d

651 (2008) (stating that the admission of a previous court’s factual findings was not an

unconstitutional comment on the evidence); see also State v. Redd, 51 Wn. App. 597, 607, 754

P.2d 1041 (1988).

       Here, the State asked Luque whether requesting a search warrant from a judge was a safer

procedure than accepting a suspect’s consent to take a blood draw. Luque responded “yes.” RP

at 627. The record does not indicate that the trial court expressed any opinion on Luque’s search

warrant affidavit or Luque’s testimony in general. Accordingly, we hold that Luque’s testimony

did not constitute a judicial comment on the evidence.

E.     NEGLIGENCE REQUIREMENT FOR VEHICULAR ASSAULT

       Johnson argues that the amended information was inadequate and the trial court erred in

its to-convict jury instruction because neither included negligence as an element of vehicular

assault. We disagree.




                                                21
No. 50064-7-II


        RCW 46.61.522(1)(b) states that a person is guilty of vehicular assault if he or she

operates any vehicle while under the influence of intoxicating liquor or any drug and causes

substantial bodily harm to another. The statute does not expressly state that negligence is an

element of the crime.

        The State bears the burden of proving each element of a crime beyond a reasonable

doubt. State v. Burch, 197 Wn. App. 382, 388, 389 P.3d 685 (2016), review denied, 188 Wn.2d

1006 (2017). Accordingly, a constitutionally sufficient charging document must include all

essential elements of a crime. State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013). And

the trial court’s to-convict jury instruction must contain all the elements of the crime essential to

conviction. Burch, 197 Wn. App. at 388.

        Whether a statutory offense includes a mens rea element is a matter of statutory

interpretation. Id. at 389. We review the relevant statutes de novo to determine if the legislature

intended to include a mens rea element in a statutory crime. Id. If a statute is silent as to

whether mens rea is required, the legislature may have intended for the crime to be a strict

liability offense. See id. at 393. This court looks to the eight factors adopted in State v. Bash,

130 Wn.2d 594, 605-06, 925 P.2d 978 (1996), to determine whether a statute that is silent as to

mens rea defines a strict liability offense. Burch, 197 Wn. App. at 393.

        This court previously considered whether vehicular assault by driving under the influence

is a strict liability offense under the Bash factors in Burch. 197 Wn. App. at 400-07. The court

held that the Bash factors favored a strict liability interpretation of the particular form of

vehicular assault described in RCW 46.61.522(1)(b). Id. at 407. Therefore, this court held that

the trial court had not erred by excluding ordinary negligence as an element of vehicular assault

in its to-convict jury instruction. Id.




                                                  22
No. 50064-7-II


       Here, the amended information and the to-convict instruction did not include negligence

as an element of vehicular assault. Johnson argues that negligence should be an element of

vehicular assault and that Burch was wrongly decided. She argues that the Bash factors actually

weigh in favor of including negligence.

       However, Johnson’s arguments are unpersuasive. We follow our holding in Burch that

negligence is not an element of vehicular assault as committed by a driver under the influence of

alcohol or drugs. Accordingly, we hold that the information and to-convict instruction properly

did not include negligence as an element of vehicular assault.

F.     DRE PROTOCOL INSTRUCTION

       Johnson also argues that the trial court erred by rejecting her proposed jury instruction on

the DRE protocol. We disagree.

       We review a trial court’s choice of jury instructions for an abuse of discretion. State v.

Hathaway, 161 Wn. App. 634, 647, 251 P.3d 253 (2011). Jury instructions are appropriate if

they allow a defendant to argue his or her theories of the case, are not misleading, and when read

as a whole properly state the applicable law. State v. Aguirre, 168 Wn.2d 350, 363-64, 229 P.3d

669 (2010). It is not error to refuse to give a specific instruction when a more general instruction

adequately explains the law and allows each party to argue its theories of the case. Hathaway,

161 Wn. App. at 647.

       Here, Johnson’s proposed jury instruction stated the protocol for administering a DRE

exam and cited Quaale and Baity. However, those cases dealt with the admissibility of DRE

opinion testimony. Quaale, 182 Wn.2d at 202; Baity, 140 Wn.2d at 18. And once the trial court

has ruled on the admissibility of DRE evidence, the jury can properly weigh the DRE witness’s

testimony.




                                                23
No. 50064-7-II


       Johnson argues that the proposed instruction would have allowed her to argue her theory.

But Johnson’s theory was an erroneous interpretation of the admissibility of DRE opinion

testimony. Whether DRE opinion testimony is admissible is not a question for the jury. See

Baity, 140 Wn.2d at 9.

       Accordingly, we hold that the trial court did not abuse its discretion in rejecting

Johnson’s proposed jury instruction.

G.     PROSECUTORIAL MISCONDUCT

       Johnson argues that the prosecutor committed misconduct by introducing testimony that

amounted to an improper judicial comment, introducing prejudicial evidence, and implying that

the jury could presume the defendant’s guilt. We disagree.

       1.   Legal Principles

       To prevail on a claim of prosecutorial misconduct, a defendant must show that “in the

context of the record and all of the circumstances of the trial, the prosecutor’s conduct was both

improper and prejudicial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d

673 (2012). We review the prosecutor’s conduct and whether prejudice resulted therefrom “by

examining that conduct in the full trial context, including the evidence presented, ‘the context of

the total argument, the issues in the case, the evidence addressed in the argument, and the

instructions given to the jury.’ ” State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011)

(quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).

A prosecutor’s questions that are designed to illicit improper testimony constitutes misconduct.

See State v. Padilla, 69 Wn. App. 295, 299, 846 P.2d 564 (1993) (holding prosecutor committed

misconduct by repeatedly asking defendant whether another witness was lying).




                                                24
No. 50064-7-II


       In a prosecutorial misconduct claim, a defendant who fails to object to improper conduct

may be deemed to have waived the issue on appeal unless the prosecutor’s statements are so

flagrant and ill-intentioned that the resulting prejudice could not be corrected by a jury

instruction. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012). The defendant must

show that (1) no curative instruction would have eliminated the prejudicial effect, and (2) the

misconduct resulted in prejudice that had a substantial likelihood of affecting the verdict. Id. at

761.

       2.    Judicial Comment

       Johnson argues that the prosecutor committed misconduct by asking Luque if a search

warrant was a safer procedure than relying on a suspect’s consent to take a blood draw because a

search warrant is approved by a judge. She argues that this question amounted to a judicial

comment on the evidence and that the prosecutor acted improperly in asking the question that

way.

       We concluded above that Luque’s testimony did not constitute a judicial comment on the

evidence. Accordingly, we hold that it was not misconduct for the prosecutor to elicit this

testimony.

       3.    Prejudicial Evidence

       Johnson argues that the prosecutor committed misconduct by introducing the testimony

of Chumley, Carey’s mother, regarding the cost of Carey’s prosthetic leg. Johnson also argues

that the court erred in not excluding this evidence.

       ER 401 defines relevant evidence as “evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or




                                                 25
No. 50064-7-II


less probable than it would be without the evidence.” And relevant evidence is generally

admissible. ER 402.

       However, relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.” ER 403. Evidence may be unfairly prejudicial

when it excites an emotional rather than a rational response by the jury or when it promotes a

decision on an improper basis. State v. Haq, 166 Wn. App. 221, 261, 268 P.3d 997 (2012). The

trial court has considerable discretion to consider what evidence is relevant and to balance its

possible prejudicial impact against its probative value. State v. Barry, 184 Wn. App. 790, 801,

339 P.3d 200 (2014).

       Here, the cost of Carey’s prosthetic was irrelevant. We do not agree that merely asking

the question about the prosthetic rose to the level of prosecutorial misconduct. But the trial court

abused its discretion in not excluding this testimony.

       However, a trial court’s improper admission of evidence generally is nonconstitutional

error that requires reversal only if the evidence materially impacted the trial’s outcome. State v.

Beadle, 173 Wn.2d 97, 120-21, 265 P.3d 863 (2011). Erroneous admission of evidence is

harmless unless there is a reasonable probability that, but for the error, the verdict would have

been materially different. State v. Ashley, 186 Wn.2d 32, 47, 375 P.3d 673 (2016). In addition,

the improper admission of evidence is harmless if the evidence is of minor significance in

reference to the evidence as a whole. State v. Butler, 198 Wn. App. 484, 492, 394 P.3d 424,

review denied, 189 Wn.2d 1004 (2017).

       Here, the evidence was of minor significance at trial and Johnson has not shown that the

outcome of the trial would have been different if the trial court had excluded the cost of Carey’s

prosthetic. Accordingly, we reject Johnson’s arguments regarding this evidence.




                                                 26
No. 50064-7-II


        4.   Shifting Burden of Proof

        A prosecutor commits misconduct by suggesting that the defendant can be presumed

guilty or that the State somehow does not bear the burden of proving its case beyond a

reasonable doubt. Emery, 174 Wn.2d at 760.

        Here, the prosecutor began his closing argument by stating, “every time we have a

criminal trial . . . it is because of the actions and the choices of the defendant.” RP at 789. The

prosecutor went on to note that the State had the burden to prove the elements of the crime

beyond a reasonable doubt, emphasizing that the burden was high but not beyond all doubt. In

the context of the entire closing argument, the prosecutor did not imply that the jury could infer

the defendant’s guilt.

        Accordingly, we hold that the prosecutor’s statement in closing argument did not

improperly shift the burden of proof.

        5.   Cumulative Error

        Johnson argues that even if the prosecutor’s individual acts of alleged misconduct do not

demonstrate prejudice that would require reversal, the cumulative effect of the prosecutor’s

misconduct requires reversal. Under the cumulative error doctrine, the defendant must show that

the combined effect of multiple errors requires a new trial. State v. Clark, 187 Wn.2d 641, 649,

389 P.3d 462 (2017). Reviewing all the evidence, we find no cumulative error that affected

Johnson’s right to a fair trial.

H.      INEFFECTIVE ASSISTANCE OF COUNSEL

        Johnson argues that if this court declines to consider her prosecutorial misconduct claims

because of defense counsel’s failure to object to that misconduct, she received ineffective




                                                 27
No. 50064-7-II


assistance of counsel. However, because we hold that the prosecutor did not commit

misconduct, Johnson’s ineffective assistance of counsel claim fails.

                                         CONCLUSION

        We affirm Johnson’s conviction of vehicular assault.

        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.



                                                    MAXA, C.J.


 We concur:



 WORSWICK, J.



 MELNICK, J.




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