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      IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                       DIVISION II

STATE OF WASHINGTON,                                                                     No. 42897 -1 - II


                                         Respondent,


         V.



JOSE VALENCIA- HERNANDEZ, aka                                                      UNPUBLISHED OPINION
JAIME JOSE LLAMAS, JAIME LLAMAS -
HERNANDEZ,


                                         I1


         HUNT, J. —       Jose Valencia -
                                        Hernandez appeals his sentence and jury convictions for first

degree arson, possession of methamphetamine with intent to deliver while armed with a firearm,

and   first degree   unlawful possession of a                firearm.   He argues that the trial court erroneously ( 1)

denied his      motion        for    continuance; (     2)     denied his      motion    to   sever    counts; (   3)     admitted



surveillance videos; (        4) allowed Detective Bill Sofianos, whom Valencia -Hernandez asserts was


not   a qualified expert,       to   testify   about   the    significance of a statue of      Jesus Malverde; ( 5) denied


his   request   to impeach Detective Spencer Harris; ( 6)                      commented      on   evidence    presented; (          7)


                      Hernandez'
denied his ( Valencia -                        s)   request   to   relocate   custody   officers; (   8) rolled his eyes when


overruling his    counsel' s objection; (           9) overruled his objection during the State' s closing rebuttal

arguments;      and (   10)   miscalculated         his sentencing      range.     Valencia -
                                                                                            Hernandez also argues that


the   evidence   is insufficient to       support     his   convictions.      We   affirm.
No. 42897 -1 - II



                                                                  FACTS


                                                              I. CRIMES


                                                              A. Arson


         Just before 5 AM on March 5, 2010, Richard Cox called 911 to report a fire; he called


back later to       add   that he had     seen a "   black SUV"          leaving   the   scene at a     high   speed.   2 Report of


Proceedings ( RP)         at   267.    When Deputy Jesse Henschel arrived at the scene, he saw ( 1) a Nissan

Altima and a BMW engulfed in flames a few feet from the residence, which appeared to be in


danger   of   catching fire;          and (   2) two men attempting to           put out    the   fire.   Henschel and Deputy

Justin Messman found two partially melted gas cans and two plastic gas can caps at the scene.

         Messman later discovered that a nearby 7 -11 convenience store sold gas cans with labels

and price     tag   stickers    matching those         on   the   gas can caps     found   at   the   scene of   the fire.   Sergeant


Duncan Hoss and Deputy Robin Yakhour followed up by investigating this 7 -11 as a possible

source of the fire -starting items. The 7 -11 store clerk, Bahadur Singh, told them he had sold two

gas cans that morning, and the store manager, Harpreet Kaur, showed them a surveillance video

of two Hispanic males purchasing two one -gallon gas cans, two V8 bottles, and a Bic lighter at

4: 06   AM:   One wore a red jacket with white stripes on it and appeared to have a light brown. skin


tone; the other wore a black puffy -ype jacket. Kaur later made a copy of this surveillance video,
                                   t

which Yakhour picked up, marked with the case and victim' s names, and gave to Hoss, who

logged it into evidence.


          Also on March 5, Hoss and Yakhour investigated a nearby AM / M store as another
                                                                     P

possible      source      of   the     fire -
                                            starting    items.       The store manager let Hoss run that store' s


surveillance video, which showed ( 1) a dark -
                                             colored Range Rover pulling into the AM / M store
                                                                                     P



                                                                     2
No. 42897 -1 - II



around 4: 12 AM; and ( 2) two men matching the description of the men in the 7 -11 video, carrying

gas cans:        one in a red coat with white stripes on it and the other wearing a black, puffy type

jacket,   and    boots.     Hoss copied the relevant portions of the surveillance video onto a computer


thumb drive, which he later copied onto a CD that he entered into evidence.


          A few days later, Karissa Courtway, who had been at her boyfriend Jonathan Tapia-

Farias'   s    residence,      the    scene     of    the fire, told Yakhour that ( 1)          she used to date Valencia-

Hernandez, ( 2) suspected he had caused the fires because one or two months earlier he had told


her he wanted to light Tapia -
                             Farias' s car on fire, and ( 3) Valencia- Hernandez lived in Meadow

Wood Apartments             and owned a              Range Rover.         Hoss went to the Meadow Woods apartment


where Valencia- Hernandez allegedly lived and saw a dark- colored Range Rover parked outside

the unit, within 1000 feet of a school bus zone.


          Hoss obtained and executed a search warrant at Valencia- Hernandez' s apartment to


collect       evidence    of   the    earlier       arson.      Outside the apartment, the officers found work boots


matching those worn by the black-puffy-jacketed suspect in the convenience stores' surveillance

videos.       Inside the apartment, Hoss found a red jacket matching the red jacket of the man in the

surveillance       videos,      a    gun   case,     a receipt     from Portland Tire     and   Wheels   made   out   to " Jose



Valencia "1 at that Meadow Woods Apartment address, a glass bowl containing what appeared to
be   methamphetamine,                  a      glass     smoking       pipe,    ziplock    bags,    packaging    material,     a



methamphetamine                test    kit,     a     digital    scale,   a   clear   plastic   bag   containing   suspected



methamphetamine, a statue of Jesus Malverde with a photograph of Valencia -
                                                                          Hernandez on the




16RPat885.



                                                                      3
No. 42897 -1 - II



base    of    the   statue,   three firearms ( two            of which         contained   loaded      magazines),    a bag with
                                                                          2
 multiple magazines ...                  generally     of rifle caliber, "      another bag containing both handgun and

rifle magazines, a temporary identification card bearing the name Jose Valencia -
                                                                                Hernandez, and

a   Costco     card with      a picture of                 Hernandez
                                                  Valencia -                    on   the back.   Sofianos later discovered a

                                                                    3
telephone bill         addressed         to " Jose Valencia, "          inside the kitchen, a photograph of Valencia-


Hernandez bare -chested with handguns tucked in his belt, and several vacuum sealed packages

                                     4
containing " large       shards "        of   methamphetamine5 in a hole in the ceiling.

             Hoss, Sofianos, and Detective Steven Fox investigated the Range Rover that had been

parked outside                  Hernandez'
                       Valencia -                       s apartment.        Inside they found two empty V8 juice bottles,

a    7 -11   plastic   bag,    two Bic lighters,           and    gas   can    tags that   said " gasoline"     on   one   side   and



             oil mix"
    gasoline /                on   the   other side.      3 RP     at   447.    A DNA test later found a match between


swabs collected from the inside of one of the V8 juice bottles and Valencia -
                                                                            Hernandez.

                                                           B. "   Kidnapping"

             Sometime later in March,                  Courtway    went with               Hernandez to Oregon.
                                                                                  Valencia -                                 When


      Farias
Tapia -              called    Courtway from jail             on    March 22, she told Tapia -
                                                                                             Farias that Valencia-


Hernandez had kidnapped her                       and    wanted    to take      her to California.          A few months later,


Valencia- Hernandez was arrested and booked into Clark County jail on June 10, 2010.


27RPat921.

3 10 RP at 1354.

411 RP at 1368.
5
    One      package weighed about              1. 8   pounds; another weighed          just   under   1   pound.    A Washington
 State Patrol Crime Lab later tested these drugs and found them positive for methamphetamine.




                                                                        i
No. 42897 -1 - II



                                                             II. PROCEDURE


         The State       charged     Valencia- Hernandez              with   first degree         arson ( count   1),   possession of a




controlled     substance with        intent to deliver —methamphetamine                           ( count   2), first degree unlawful


possession      of a     firearm (   counts        3 - 5),   felony      harassment (       count     6),   unlawful imprisonment


 domestic      violence) ( count          7),   intimidating        a witness ( count        8), and tampering with a witness


 count   9).   Valencia- Hernandez remained in custody throughout his trial.

                                                         A. Pretrial Motions


         Having already continued the trial date seven times, the trial court granted Valencia-

Hernandez'      s   September 22, 2011            request     for   an   October 31 trial date. On October 12, Valencia-


Hernandez filed          a motion    to    sever counts, which            the trial   court   later denied. On October 27, the


trial court reminded the parties that the trial would go forward on October 31; and both agreed.

Three days before trial, however, Valencia -
                                           Hernandez objected to the October 31 trial date and

again moved         to   continue,   stating he        needed       the time to       complete witness         interviews.     The trial


court denied this motion.


          Trial commenced on October 31, at which time Valencia -
                                                                Hernandez renewed his motion

to   continue, which        the trial     court    denied      as   untimely.      Valencia- Hernandez also asked the trial


court to reposition the custody officers, arguing that their presence created an aura that Valencia-

Hernandez " is       an   extremely dangerous                character."       1 RP    at   65.    The trial court also denied this


request.



                                                                    B. Trial


          The State' s witnesses testified to the facts previously described, with the exception of

                                    her              kidnapping                   to the    sheriff' s office and       testified instead
 Courtway,      who recanted               earlier                       report
No. 42897 -1 - II



that   she   had    made     up the story.       Courtway     also   testified that ( 1)    she had agreed to go to


California     with            Hernandez; ( 2)
                      Valencia -                         on the way to California, they had stayed with his
                                                                                                    6
childhood     friend Saul Carrillo in Eugene, Oregon; ( 3)              she   had " freaked    out "    when they drove

through Eugene and asked to be taken home; and ( 4) Valencia- Hernandez had dropped her at a


car dealership and given her $ 9500 in cash.

                                                  1.   Surveillance videos


          Valencia- Hernandez objected to the State' s offer of the surveillance videos from the 7 -11


and AM / M stores, arguing that they lacked a proper foundation for admission into evidence.
       P

The State then       presented    four   witnesses who      laid foundations. Valencia- Hernandez moved for a


mistrial,    arguing that ( 1)     the surveillance videos lacked foundation, and ( 2) the trial judge had


    appeared to roll [ his] eyes" when Valencia- Hernandez objected to admission of the surveillance


videos.      3 RP    at   474.   The trial judge expressed surprise because he did not recall rolling his

eyes, asked        Valencia- Hernandez'        s counsel   to check " the   logs, "8   and later instructed everyone in

the courtroom, including the jury, to disregard people' s body language.

                                 2. Jesus Malverde statue; attempted impeachment


          Detectives Harris and Sofianos testified about the relevance of finding the Jesus

Malverde      statue at             Hernandez'
                           Valencia -                  s apartment.    During his years of experience, executing


614 RP at 1681.

7 At the start of trial, out of the jury' s presence, the trial judge had mentioned he had sciatica ( a
pinched nerve)        that   could fidgeting, standing up, and grimacing facial expressions. He
                                     lead to

later explained to the jury that his grimacing and fidgeting was not a comment on what the
attorneys did in court.

s
    3 RP at 474.




                                                               on
No. 42897 -1 - II



search warrants, and extensive training on clues to look for in narcotics trafficking, Sofianos had

learned that Jesus Malverde was known as the " patron saint" of drug smugglers in Latino drug

sub -culture and        that Jesus Malverde was     a narcotics            trafficking      clue.   10 RP at 1225.


          During recess, Valencia -Hernandez stated his intention to impeach Harris about an

 IAD "9 investigation that had resulted in his suspension " for failing to deliver certain required
information to the department."             13 RP     at    1628.          Valencia -
                                                                                    Hernandez .represented that he had


 actual    documented       suspension   for [ Harris'     s]   failing      to be truthful to the department "; but when


the trial court asked for this documentation, Valencia -
                                                       Hernandez responded that he could not

 prove    it up    by   extrinsic evidence."      13 RP         at    1630.        The trial court denied the impeachment


request.



                                           3.   Recorded jail conversation


          The State played for the jury the recorded jail cell conversation between Courtway and

      Farias.
Tapia -                Because part of the recording appeared unintelligible, the trial court ( 1) told the

jury   that   although    the transcript of the   recorded conversation read, "                     It'   s not a   big   deal," the trial


court   had heard, " It' s    not a good   deal," 15 RP              at   1835;    and (   2)   stressed    to the   jury, " I   reinforce


with you,      it' s   what you   heard that' s the   evidence,            it' s   not   that   printed page,        okay ?" 15 RP at


1835. Valencia- Hernandez did not object.


                                           4. Motion to dismiss; verdict


          Valencia -
                   Hernandez later moved to dismiss the charges of intimidating a witness and

tampering with a witness on grounds that the State did not present evidence of his having

attempted to change or to influence Courtway' s testimony or of his knowledge that Courtway


9 The record does not state the basis for this acronym.


                                                                     7
No. 42897 -1 - II



would     serve   as     a witness.           The trial court dismissed the intimidating charge but denied the

motion    to dismiss the              tampering       charge ( count       9).    The State withdrew the felony harassment

charge ( count 6).


          The     jury    acquitted                    Hernandez
                                              Valencia -                         of   unlawful     imprisonment (    count    7)    and




tampering    with a witness ( count                  9).   It convicted him of the remaining counts, finding him guilty

of   first degree      arson ( count           1),   possession      of a controlled substance —methamphetamine with




intent to deliver       while armed with a                 firearm   and within        1000 feet   of a school zone ( count   2),   and



first degree unlawful possession of a firearm (counts 3, 4, and 5).


                                                               C.    Sentencing

          At sentencing, the State                    recommended (         1)    36 to 48 months of incarceration for first


degree    arson ( count         1),    based     on an offender score of              three; ( 2) 152 to 184 months for his level


three possession of a controlled substance with intent to deliver methamphetamine ( count 2),


which recommendation included an additional 60 months for having committed this crime while

armed with a firearm and an additional 24 months for having committed this crime within 1, 000.

feet of a school zone; and ( 3) 31 -41 months for first degree unlawful possession of a firearm


 counts   3 to 5), based              on an offender score of         three.      Valencia-Hernandez objected to the State' s


recommendation            for     count       2, arguing that ( 1)         possession of methamphetamine with intent to


distribute is     a   Class B,        not a   Class A,      felony; ( 2)   thus, the firearm enhancement should be 36, not


60, months; and ( 3) consequently, the sentencing range should be 128 to 160 months.

          The State also recommended that Valencia -
                                                   Hernandez receive 171 days credit for time


served.             Hernandez did
           Valencia -                                 not propose a    different       credit   for time   served.
No. 42897 -1 - II



          The trial     court       imposed    concurrent          sentences       of   48   months   in   prison   for   count   1,   160


months    for   count    2 ( including the      special      firearm          and school zone enhancements),          and 41 months


for   counts    3, 4,   and    5,    with   171 days      credit   for    time    served.     Valencia -
                                                                                                       Hernandez now appeals


 every    portion of     the   Felony       Judgment      and   Sentence."         Spindle ( Notice of Appeal).


                                                             ANALYSIS


                                                           I. CONTINUANCE


          Valencia -
                   Hernandez argues that the trial court abused its discretion in denying his motion

to continue the October 31 trial date because this ruling rendered him unable to complete witness

interviews before trial. We disagree.


          A defendant is            not " entitled   to   a continuance as a matter of right."               State v. Early, 70 Wn.

App.    452, 457 -58, 853 P. 2d 964 ( 1993),                  review          denied, 123 Wn.2d 1004 ( 1994).              Whether to


grant continuance is discretionary with the trial court, whose decision we will not overturn unless

the trial   court   abused          that discretion.       State v. Downing, 151 Wn.2d 265, 272, 87 P. 3d 1169

 2004).


          Valencia- Hernandez concedes that he had eight and a half months to prepare for trial.


We further note that ( 1) the trial court had already granted seven continuances; and ( 2) a month

before trial, at a September 22 hearing, Valencia -
                                                  Hernandez did not object to the October 31 trial

date, did not request an alternate trial date, and pushed the trial court to hear the case sooner.


Instead, he waited until only three days before trial to ask for this continuance to interview

witnesses.       We hold that the trial court did not abuse its discretion in denying this last minute

motion for continuance.




                                                                         we
No. 42897 -1 - II



                                                                II. SEVERANCE


         Valencia- Hernandez next argues that the trial court erred in denying his motion to sever

counts because none of the charges shared a single element of proof. Because the evidence for

various counts was cross admissible and Valencia- Hernandez fails to show prejudice from their

joinder, we hold that the trial court did not abuse its discretion in denying his motion for

severance.




         Washington law does                   not   favor     separate   trials.   State v. Dent, 123 Wn.2d 467, 484, 869


P. 2d 392 ( 1994).            We review a trial court' s decision on a motion for severance for manifest

abuse    of   discretion.         State   v.   Bythrow, 114 Wn. 2d 713, 717, 790 P. 2d 154 ( 1990).                      Defendants


seeking severance must show that a trial involving multiple counts would be so manifestly

prejudicial as         to    outweigh     the   concern        for judicial economy. Bythrow, 114 Wn.2d                  at   718.    To


determine whether the potential prejudice requires severance, the trial court considers four


factors: (      1)     the strength        of     the    State'   s   evidence   on   each   count, (   2)   the jury' s ability to

compartmentalize              the   evidence, (         3)    the ability to instruct the jury to consider each count

separately,          and (   4)   the     cross      admissibility       of   evidence    among    various      counts.       State    v.


MacDonald, 122 Wn. App. 804, 815, 95 P. 3d 1248 ( 2004).

         Valencia -
                  Hernandez                    argues        that ( 1)   other   than    Valencia- Hernandez'      s   identity,      the



remaining counts that went to trial did not share elements of proof; (2) except for the jacket and

boots,   the    evidence was            not cross        admissible; (    3) the    kidnapping    evidence was         weak; (   4) the


jury' s exposure to all charges during a single trial prejudiced him; and ( 5) repetition of witnesses

hampered judicial economy. We disagree.




                                                                         10
No. 42897 -1 - II



         First, Valencia -
                         Hernandez cites no authority for the proposition that the charges must

share   other     elements    of proof          besides his     identity.       Second, evidence was cross admissible to


establish Valencia- Hernandez' s identity and mens rea for multiple counts; and a majority of the

same witnesses testified about more than one count, such as Courtway, Sofianos, and Hoss.

Third, the trial court properly instructed the jury to compartmentalize the evidence and to decide
                              1;
each count       separately        for    example,      jury    instruction 3      stated, "    A separate crime is charged in


each    count.     You must decide               each   count    separately.       Your verdict on one count should not


control your verdict on            any    other count."        Clerk'   s   Papers ( CP)   at   405 ( Instruction No. 3).     Fourth,

                                                                                                                 10
         Hernandez fails to
Valencia -                                  show     that   trying      these " three disparate        cases "        together was so



manifestly      prejudicial as       to    outweigh     the    concern       for judicial economy.         We hold that the trial


court did not manifestly abuse its discretion in denying the motion to sever.

                                                III. CUSTODY OFFICERS IN COURT


           Valencia-Hernandez also argues that the trial court erred in refusing his request to have

his two custody       officers      sit    in   a more neutral       location in the       courtroom."       We will not review


issues that a party inadequately briefs or treats in passing. State v. Thomas, 150 Wn.2d 821, 868-

69, 83 P. 3d 970, abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36,

124 S. Ct. 1354, 158 L. Ed.2d 177 ( 2004).                         Passing treatment of an issue or lack of reasoned

argument     is insufficient to           merit   judicial     consideration.       State v. Johnson, 119 Wn.2d 167, 171,



 10 Br. of Appellant at 22.

 11
               Hernandez
      Valencia -                    contends       that ( 1)    during his trial, two heavily armed officers wearing
bulletproof vests, holding guns and tasers, sat directly behind him, one to each side; and ( 2) this
 created    the    impression that he              was      highly      dangerous,     which violated his constitutionally
protected presumption of innocence.




                                                                        11
No. 42897 -1 - II



829 P. 2d 1082 ( 1992).        Generally we will not review an assignment of error without argument

and citation   to authority.    State   v.   Cox, 109 Wn.    App.   937, 943, 38 P. 3d 371 ( 2002).         Contrary to

RAP 103( a)( 6), Valencia -
                          Hernandez fails to support his factual assertions with citation to the

                                                                                                                         12
record and    fails to   support   his legal   argument with citation      to authority in his       appellant' s   brief.


Therefore, we do not further consider this argument.

                                                    IV. EVIDENCE


                   Hernandez
          Valencia -                 next challenges several of       the trial   court' s   evidentiary   rulings.    The


admissibility of evidence is within the sound discretion of the trial court, which decisions we

review with great        deference   under a manifest abuse of        discretion     standard.      State v. Ureen, 143


Wn.2d 923, 932, 26 P. 3d 236 ( 2001).             Such is not the case here.

                                               A. Surveillance Videos


          Valencia- Hernandez argues that the trial court erred in admitting the 7 -11 and AM / M
                                                                                              P

surveillance videos over       his   objection and without proper          foundation. We agree with the State


that it properly authenticated both the videos and that the trial court did not abuse its discretion in

allowing the videos into evidence.

          ER 901 requires proper authentication of videos as a condition precedent to admissibility.

For     authentication     purposes,     courts    treat   video    tape   recordings        like   photographs,     which




Washington courts have a policy of liberally admitting. State v. Newman, 4 Wn. App. 588, 593,

484 P. 2d 473,    review    denied, 79 Wn.2d 1004 ( 1971).           To lay a proper foundation for admitting a



 12
      Valencia -
               Hernandez' s citation to Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct 1340, 89 L.
Ed. 2d 525 ( 1986) in his reply brief, ( in response to the State' s citing                    this case in its brief of
respondent), comes too late.  We do not consider arguments raised forthe first time in a reply
brief. See Johnson v. Phoenix Assur. Co. ofNew York, 70 Wn.2d 726, 729, 425 P. 2d 1 ( 1967).


                                                            12
No. 42897 -1 - II




video tape recording, some witness, not necessarily the photographer, must be able ( 1) to show

when, where, and under what circumstances the video tape recording was taken; and ( 2) to

testify that the video accurately portrays the subject illustrated. State v. Tatum, 58 Wn.2d 73, 75,

360 P. 2d 754 ( 1961).        If these two criteria are met, the video tape recording is admissible at the

trial court's discretion. Newman, 4 Wn. App. at 593.

                                                          1.   7 -11 video


         Multiple witnesses testified about the circumstances under which the video recording was

taken   and    that the copy          offered   at   trial accurately portrayed the      subject   illustrated.   Bahadur


Singh testified that he was the store clerk in the 7 -11 video who sold two gas cans to two men on.


March 5,       2010.      Store       manager        Harpreet Kaur testified that ( 1)      this 7 -11 took and kept


surveillance     videos    on a       daily   basis in the     regular course   of   business, ( 2) she had viewed the


surveillance video with Deputy Robin Yakhour and had made a copy for her, and ( 3) the video

accurately depicted the front clerk area of the store and what she had viewed with Yakhour.

Yakhour testified that she had picked up a copy of the video from the 7 -11, put it in a CD case on

which she had handwritten the case name and victim' s name, and given the copy to Sergeant

Duncan Hoss.        And Hoss testified that he had watched the original 7 -11 surveillance video and


that State' s exhibit 134 was an accurate depiction of that video and of the copy Yakhour had

given   him    and which     he had logged into           evidence.    We hold that the State properly authenticated

the   7 - 11   video (   State'   s   exhibit   134) and that the trial court did not abuse its discretion in


admitting it into evidence.




                                                                  13
No. 42897 -1 - II



                                                            2. AM / M video
                                                                  P


            Sergeant Hoss testified that               on   the morning of March 5, 2010, ( 1)            he had gone to the


AM/PM        station; (   2) the store manager had escorted him to the backroom and shown him how to


run   the   surveillance video; (          3) he had personally reviewed the surveillance video and observed

two men in the video carrying gas cans, which men matched the general description of the men

in the 7 -11       video; (   4) he had copied this portion of the surveillance onto his thumb drive and


later copied his thumb drive onto a CD, which he entered into evidence; and ( 5) State' s exhibit


133 accurately depicted the                surveillance video        he had   viewed at          the AM / M
                                                                                                        P     station.    We hold


that the State properly              authenticated       the AM/PM       video (   State'   s exhibit   133) and that the trial


court did not abuse its discretion in admitting it into evidence.

                                          B. Detective Sofianos' Expert Testimony

            Valencia -
                     Hernandez argues that the trial court erred in allowing Detective Bill Sofianos

to testify as an expert about the drug -culture significance of Jesus Malverde because Sofianos

admitted on cross -examination that he was not an expert and because his testimony was highly

prejudicial.       We disagree.           At the outset, we note that Valencia- Hernandez misreads the record:

Sofianos did        not admit on cross           that he     was not an expert.       Thus, we focus our analysis on the


prejudice part of Valencia- Hernandez' s argument.


            We review a trial court' s decision to admit expert testimony for abuse of discretion.

Tatum, 58 Wn.2d               at    76.   The admissibility of expert testimony under ER 702 depends on

whether (     1)   the witness qualifies as an expert, (                 2) the opinion is based upon an explanatory

theory generally          accepted        in the      scientific   community,      and (    3)   the expert testimony will be

helpful to the trier       of      fact. State   v.   Allery,   101 Wn.2d 591, 596, 682 P. 2d 312 ( 1984).               To qualify



                                                                    14
No. 42897 -1 - II




as an expert, a witness need not possess academic credentials; practical experience may suffice.


Harris    v.   Groth, 99 Wn.2d 438, 449, 663 P. 2d 113 ( 1983).                 A witness may qualify as an expert

by   virtue of   knowledge,   skill, experience,        training,   or education.    ER 702; Harris, 99 Wn.2d at


449. The trial court must evaluate both the relevance of the testimony and its prejudicial impact,

excluding unnecessarily        cumulative        or   unfairly    prejudicial   testimony.     State   v.   Petrich, 101


Wn.2d 566, 575, 683 P. 2d 173 ( 1984). 13

          The record shows that Sofianos possessed the requisite practical experience, knowledge,

skill,   and   training to testify   about   Jesus Malverde.           Sofianos' knowledge of Jesus Malverde


stemmed from his experience with Latino drug subculture and extensive training on clues to look

for in   narcotics    trafficking,   such   as   Jesus Malverde.        Sofianos testified that he had executed


search warrants that were consistent with his training and knowledge of Jesus Malverde.

Sofianos had also trained in narcotics investigations through the Drug Enforcement Agency, the

El Paso Intelligence Center, " ATF ",             and   the Coast Guard, to         name   a   few.    11 RP at 1373.


Sofianos provided the trial court with supplemental reading material about Jesus Malverde, to

which    Valencia- Hernandez did       not object.        We hold that Sofianos qualified as an expert in the


significance of Jesus Malverde in narcotics investigations.




 13 Abrogated on other grounds by State v. Kitchen, 110 Wn.2d 403, 756 P. 2d 105 ( 1988).


                                                             15
No. 42897 -1 - II


                                                                                                                    14
           We      also    hold that Sofianos'              testimony           was   not   unduly   prejudicial.         To minimize


prejudice,      the trial      court    specifically limited the                  scope     of   Sofianos'   testimony about Jesus

Malverde to the specific purpose of supporting the identity and intent elements at issue.

Consistent with this limitation, the State used the Jesus Malverde shrine evidence sparingly,

keeping      within       the trial court' s      limits.    The State also proved identification and intent with an


array of other evidence, such as surveillance equipment, police scanner, digital scale, packaging

materials, bags of methamphetamine, a methamphetamine testing kit, and three functional and

loaded firearms, all discovered inside Valencia- Hernandez' s locked bedroom. The bedroom also

contained a Washington identification card and a Costeo card bearing Valencia- Hernandez' s

name and photograph, and a red jacket that matched the jacket worn by Valencia -
                                                                               Hernandez,

which also matched              the   suspect      in the 7 -11      and        AM / M
                                                                                   P        surveillance videos.         In light of this


other evidence and the trial court' s limitations on Sofianos' Jesus Malverde testimony, we hold

that this latter testimony did not significantly prejudice or impact the outcome of the case to

warrant reversal.




14
     Valencia -
              Hernandez also argues that Sofianos' testimony, coupled with information that Jesus
Malverde    was not accepted by " any church," branded Valencia -Hernandez as a drug dealer with
no respect         for   religion.    Br.   of   Appellant     at   24.    Valencia- Hernandez mischaracterizes Sofianos'

testimony:          Sofianos did        not      testify   that Jesus Malverde        by any church;
                                                                                            was " not   accepted"

rather,    he   said, "[ T]hough not recognized as a saint by any churches, he' s commonly referred to
as   the   saint   of drug trafficking." 11 RP at 1384 ( emphasis added).




                                                                          Vol
No. 42897 -1 - II



                                                 C. Recorded Jailhouse Conversation


            Valencia -
                     Hernandez argues that the trial court violated his constitutional rights and " ER

               15
605( 4) "           by impermissibly commenting on the jailhouse recording of the conversation between

Courtway             and         Farias
                           Tapia -              by   providing his      own     interpretation           of what   Courtway      said.   But


Valencia -
         Hernandez makes no reference to the record to support this assertion, contrary to RAP

10. 3(   a)(   6); nor does the record before us show what portion of the recorded conversation the trial


court played for the jury. Because Valencia- Hernandez neither cites nor provides " those portions
                                                                                                                                          16
of    the      verbatim         report   of proceedings          necessary to           present     the issues     raised   on   review, "




contrary to RAP 9. 2( b),                we cannot adequately evaluate the context in which the trial court made
                                         17
the    challenged comment.                     Accordingly, we do not further consider this argument.

                                          V. REQUEST To IMPEACH DETECTIVE HARRIS


               Valencia- Hernandez next argues that the trial court erred in' denying his request to

  impeach Detective Harris                      with     his   suspension     for   a   breach      of   Department policy."         Br. of


Appellant            at   24.   This argument fails because Valencia- Hernandez did not proffer foundational


evidence             of   Detective Harris'          s   suspension.      When Valencia- Hernandez asked to impeach


Detective Harris                with   the "   actual    documented     suspension,"          the trial    court required, "     Then bring



15
      Br.   of      Appellant    at    26. There is       no such "   ER 605 ( 4) ";      ER 605 addresses the competency of a
judge as a witness at trial.


16 RAP 9.2( b).

 17
      Similarly, we lack an adequate record on which to decide whether to accept the State' s
concession            that the trial       court     improperly       commented          on   the   evidence.      The State, however,

rebuts any presumed prejudice by demonstrating from the record that no prejudice could have
resulted. State v. Levy, 156 Wn.2d 709, 723, 132 P. 3d 1076 ( 2006).



                                                                         17
No. 42897 -1 - II




me, bring me the information, and I don' t mean some article from the Columbian, before I' ll let

it in."       13 RP          at   1630.    Despite claiming to have the actual documented suspension, Valencia-

Hernandez did                not produce such              documentation; instead, his     counsel said, "   Well, Judge, I mean,


I   can'   t, I   can'   t   prove   it up     by   extrinsic evidence."         13 RP at 1630.


             Admission of extrinsic evidence of a witness' s character may be allowed, in the court' s

discretion. ER 608.                  Here, the trial court asked for documentation of the alleged suspension that


         Hernandez
Valencia -                           wanted         to   use   to impeach   Harris. But Valencia- Hernandez did not provide


it.   We hold, therefore, that the trial court did not abuse its discretion in denying Valencia-

Hernandez' s request to impeach Harris with this unsupported alleged misconduct.


                                                                    VI. MISTRIAL


             Valencia -
                      Hernandez                     argues      that the    trial   court denied   his   Sixth   and   Fourteenth


Amendment
                         rights18




                                     by refusing to grant a mistrial after the judge rolled his eyes and gave a look

of surprise while ruling on Valencia- Hernandez' s motion to strike the convenience store

surveillance videos.                 But Valencia- Hernandez' s Brief of Appellant cites neither to the record nor


to legal authority to                support        this   assertion,   contrary to RAP 103( a)( 6).     Thus, we do not further

                                          19
consider          this   argument.




18 U. S. CONST. amends. VI, XIV.

19 Even if we considered the merits of Valencia -Hernandez' s argument, he does not show that the
trial court abused its broad discretion in refusing to grant a mistrial and instead, electing to
instruct the jury (and everyone in the courtroom) to disregard his body language.



                                                                            18
No. 42897 -1 - II



                                                            VII. CLOSING ARGUMENT


           Valencia -
                    Hernandez argues that the trial court erred in preventing him from objecting

fully during         the   State'        s   rebuttal       closing         argument         and    by "   cut[   ting] him off sharply and

refus[   ing]   to   allow     him to             make a       full   record."         Br.   of   Appellant       at   29.     But he provides no


citation   to the     record        to   support        this   argument,      contrary to RAP 10. 3(               a)(   6).   Accordingly, we do

not further consider this argument.


                                                                    VIII. SENTENCING


           Valencia -Hernandez argues that the trial court erred in accepting the State' s proposed

sentencing range by ( 1) elevating count 2; possession of methamphetamine with intent to deliver,

to   a class    A    felony;    and (        2)   failing      to   give    him   proper credit       for time         served.     These arguments


fail because the trial court properly applied sentencing enhancements and sentenced Valencia-

Hernandez within the standard range and gave Valencia- Hernandez proper credit for time served.

                                                         A. Standard /Scope of Review


           A defendant may appeal a standard range sentence only if the sentence ( 1) fails to comply
                                                                                                                                 20;
with     the    procedural          requirements               of   the "   Sentencing        Reform Act ( SRA) "                      or (   2)   raises   a



                               21
constitutional        issue.         State        v.   Osman, 157 Wn.2d 474, 481 -82, 139 P. 3d 334 ( 2006) ( citing                                  State

v.   Mail, 121 Wn.2d 707, 711 - 13, 854 P. 2d 1042 ( 1993)).                                       To appeal under this first criterion, the
defendant must show that the sentencing court failed to follow a duty to follow some specific




20 RCW 9. 94A.585.

21 Valencia- Hernandez raises no sentence -related constitutional issues.



                                                                                  19
No. 42897 -1 - II




SRA procedure. Absent such a showing, the clear rule of RCW 9. 94A.585 applies and- appeal of

a standard range sentence is not allowed. Mail, 121 Wn.2d at 712.


      B. Possession of Methamphetamine with Intent To Deliver While Armed with Firearm


         More specifically, Valencia -
                                     Hernandez argues that the trial court erred in elevating his

possession of methamphetamine with intent to distribute to a class A felony, instead of a class B

felony, thus, increasing his sentencing range by 48 months. We disagree.

         RCW 9. 94A.518               provides   that   seriousness     level " III"   drug   offenses   include: "[       a] ny


felony   offense under chapter              69. 50 "; " Possession of Ephedrine, Pseudoephedrine, or Anhydrous


Ammonia        with      intent to    manufacture methamphetamine,"              delivery by   a person "[ o] ver        18"    of



 methamphetamine ...             to   someone under      18 ";    and "[ m]     ufacture of methamphetamine."            RCW


9. 94A. 517'   s"    Drug Offense Sentencing Grid" provides that an offender score of 3 to 5 with a

seriousness     level     of "III"    has   a sentence range of " 68+         to 100 months" of confinement.22 RCW
                    23
9. 94A. 533( 6)          adds an additional school zone enhancement of 24 months to the standard


sentence range.          Under RCW 9. 94A.533( 3)(          a),   committing a felony while armed with a firearm

adds five years to the standard sentence range for any Class A felony or a felony with a statutory

maximum sentence of at least 20 years.




22
     The legislature         amended        RCW 9. 94A.517 in 2013.              LAWS    of   2013,   ch.   14, §   1.         The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.

23
   The legislature amended RCW 9. 94A. 533 in 2011, 2012 and 2013. LAWS of 2013, ch. 270, §
2; LAWS of 2012, ch. 42, § 3; LAWS of 2011, ch. 293, § 9. The amendments did not alter the

statutes in any way relevant to this case; accordingly, we cite the current version of the statute.



                                                                  20
No. 42897 -1 - II




          The jury returned special verdicts finding that Valencia -
                                                                   Hernandez ( 1) had used a firearm

in committing a Violation of the Uniform Controlled Substances Act (VUCSA)24; and ( 2) had
committed       this    VUCSA         violation    within     1000 feet       of     a   school    zone.   His conviction for


possession of a controlled substance with intent to deliver methamphetamine while armed with a


firearm fit   within seriousness            level " III".    With an offender score of 3, the sentencing range of

 68    months   to 100      months"        conformed with      RCW 9. 94A.517              and   RCW 9. 94A. 518.       CP at 542.


The school zone and firearm sentencing enhancements added 24 months and 60 months,

respectively, to the            standard     sentence       range    of   68 - 100       months;   with these        enhancements,


         Hernandez'
Valencia -                     s sentence range       for    count   2 totaled 152 -184          months of confinement.        The


trial court, therefore, did not err in sentencing Valencia -
                                                           Hernandez to 160 months for count 2.

                                                  C. Credit for Time Served


          For the first time on appeal, Valencia- Hernandez challenges the amount of credit the trial


court gave      him for time         served.     Generally, a party cannot raise an issue for the first time on

appeal unless       it is   a " manifest error     affecting    a constitutional right."           RAP 2. 5(   a).   See also State


v.   Munguia, 107 Wn.            App.      328, 340, 26 P. 3d 1017 ( 2001).               This exception to the general rule


does not automatically mandate review whenever a criminal defendant identifies some

constitutional      issue     not raised     below.     State v. McFarland, 127 Wn.2d 322, 333 -34, 899 P. 2d


1251 ( 1995).       Rather, the appellant must show actual prejudice in order to establish that the error


is "   manifest."      McFarland, 127 Wn.2d at 333. Valencia- Hernandez fails to meet these tests.




24
       RCW 69. 50. 401        and    RCW 69. 50. 435.          The legislature amended RCW 69. 50. 401 in 2013.
LAWS of 2013,           ch.   3, §   19.
                              The amendment did not alter the statute in any way relevant to this
case; accordingly, we cite the current version of the statute.


                                                                    21
No. 42897 -1 - II



          Valencia- Hernandez fails to                show    that the           alleged error   is "   manifest."   At the sentencing

hearing, the State recommended that Valencia- Hernandez receive 171 days credit for time

served.    Not only did Valencia -Hernandez fail to propose a different number of days of credit

below, but also he fails to establish actual prejudice on appeal in that he fails to show on the

record    before   us   that he was        entitled     to   additional credit           days.    Accordingly, we do not further

consider this issue.


                                         IX. STATEMENT OF ADDITIONAL GROUNDS


          In Valencia- Hernandez'            s   Statement             of   Additional Grounds ( SAG), he asserts that the

                                     25
State   erred   in "   deviating "        from the         standard         sentencing     range    because ( 1)     the State did not


present sufficient evidence to support his convictions, and ( 2) the trial court failed to issue a

 Stipulated Agreement" to                support      imposing         an " exceptional sentence."           Statement of Additional


Grounds ( SAG)          at   3.   Valencia- Hernandez' s assertion that the jury lacked sufficient evidence to

 convict    him    outside        the [ sentencing]          guidelines"           has no bearing on the correctness of the

imposed     standard -
                     range sentence.               SAG       at   3.   Thus, we do not further address this point.


          Similarly, his challenge to an " exceptional sentence" without a " stipulated agreement" is
                   26
unsupportable.           Not only is there no such rule requiring a " stipulated agreement" to justify an

exceptional sentence, but also the trial court here did not impose any exceptional sentences.

Thus, we do not further consider this point.


25
     Statement of Additional Grounds ( SAG) at 3.


26 We first note that Valencia- Hernandez' s sentence was within the standard range, not an
 exceptional"      sentence.         SAG    at   3.    Second, he cites RCW 9. 94A. 105 ( now recodified as RCW
9. 94A.480),     which        has   no   bearing      on   his     claims:         Instead, this statute addresses delivery of a
judgment     and sentence           document to the "             caseload         forecast council "; it has nothing to do with

requiring a stipulated agreement. SAG at 3.


                                                                            22
No. 42897 -1 - II



        We affirm Valencia -
                           Hernandez' s convictions and sentences.


        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.




                                                      J.             I -`/




                                               23
