       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                   No. 72328-6-


                     Respondent,                       DIVISION ONE

              v.



ALI ABUKAR MOHAMED,                                    PUBLISHED


                     Appellant.                        FILED: May 18, 2015




       Cox, J. — Ali Abukar Mohamed appeals his judgment and sentence for

his four convictions of delivery of cocaine that included school zone

enhancements for three of these convictions. He argues that the trial court

improperly limited impeachment of a police informant who testified at trial. He

claims that the lead detective, who also testified at trial, "improperly vouched" for

the informant. Additionally, Mohamed seeks a remand for a new sentencing

hearing based on his claim that the trial court improperly exercised its discretion

based on a mistaken belief about sentencing enhancements. And he claims he

is entitled to a mitigated exceptional sentence.

       We hold that Mohamed failed to preserve the impeachment and vouching

claims and cannot make them for the first time on appeal. But there are

sentencing alternatives that are potentially available to him based on a correct

understanding of sentencing enhancements. The trial court did not abuse its
No. 72328-6-1/2


discretion in denying his request for a mitigated exceptional sentence.

Accordingly, we affirm his convictions and remand for a new sentencing hearing

for the trial court to consider the full range of available sentencing options.

       The Seattle Police Department (SPD) began its investigation in this case

when a confidential informant told his handler, Detective Samuel DeJesus, that a

man named "Dime" was selling crack cocaine out of his business. The informant

later identified "Dime" as Mohamed.

       Detective DeJesus arranged for the informant to make five "controlled

buys" from Mohamed. The police indicated they were attempting to determine

whether Mohamed also trafficked weapons.

       Three of the controlled buys occurred between April 2012 and May 2012.

The remaining two occurred in November 2012 and February 2013. On each

occasion, Detective DeJesus gave the informant about $150 and the informant

returned with a small rock of cocaine. The first four controlled buys took place at

Mohamed's clothing store, which was about 300 feet from an elementary school.

The final controlled buy took place in Mohamed's vehicle. During each

transaction, the informant wore a hidden camera.

       Based on these transactions, the State charged Mohamed, by amended

information, with five counts of delivery of cocaine. Four counts included special

allegations that the crimes were committed within 1,000 feet of a school.

       The jury acquitted Mohamed of the first delivery charge and special

allegation. It found him guilty of the other four delivery charges. The jury also

found him guilty of the other three special allegations.
No. 72328-6-1/3


      At sentencing, the parties agreed that each delivery conviction required

imprisonment within a base standard range of 20 to 60 months. They also
agreed that school zone enhancements of24 months applied to each ofthe three
convictions on the special allegations.

       In his sentencing memorandum, Mohamed asked the trial court not to

impose a standard sentence. Instead, he sought the imposition of an alternative

sentence based either on a Parenting Sentencing Alternative (PSA) under RCW

9.94A.655 or a Drug Offender Sentencing Alternative (DOSA) under RCW

9.94A.660. He also sought a mitigated exceptional sentence based on what he

called "sentencing entrapment" and "sentencing manipulation."1
       In response, the State argued that sentence alternatives "only waive

imposition of the standard range part ofa sentence."2 It further claimed, "The
defendant must be sentenced to the School Zone Enhancements he was

convicted on separate and distinctly from imposition of, or in the alternative to,

the standard range."3 It appears from the record that the State took the position

that Mohamed "will be serving 72 months in prison for the [school zone]

enhancements."4

       At the sentencing hearing, the trial court made clear that it believed it had

no authority to waive the enhancements if it chose to impose an alternative


       1 Clerk's Papers at 108-14.

       2lcLat151.

       3 Id. (emphasis in original).

       4 Id. at 152.
No. 72328-6-1/4


sentence, stating, "There has to be a 72-month sentence [enhancement]. I have

no choice in the matter."5 Accordingly, the court imposed concurrent sentences

of 20 months on each of four delivery convictions. The court also imposed three

school zone enhancements of 24 months each, to be served consecutively to

each other and consecutively to the three delivery sentences, for a total sentence

of 92 months.


       Mohamed appeals.

                                  SENTENCING

       Mohamed makes two arguments on appeal. First, he argues that the trial

court mistakenly believed that it did not have the authority to waive the

enhancements if it chose to impose either a PSA or a DOSA. Second, he

contends that he is entitled to a remand for resentencing. We agree with both

arguments.

                           "Standard Range Sentence"

       The threshold issue is whether the trial court had the authority to waive the

24-month school zone enhancements specified by RCW 9.94A.533(6) in favor of

either of two sentencing alternatives.6 One alternative was the drug offender

sentencing alternative (DOSA) under RCW 9.94A.660. The other was the



       5 Report of Proceedings (August 1, 2014) at 594.

       6 Because the crimes of convictions in this case were committed at
different times and sentencing must be done under the statutes in effect at the
time the offenses were committed, the applicable statutes are former RCW
9.94A.533(6) (2011) and former RCW 9.94A.533(6) (2012). The language of
subsection (6) of each former version of the statute is the same as the language
in the current statute.
No. 72328-6-1/5


parenting sentencing alternative (PSA) under RCW 9.94A.655. Both of these

two latter statutes provide sentencing alternatives that may be imposed in lieu of

a sentence within the "standard sentence range" for eligible offenders.7

       A court's fundamental objective in reading a statute is to ascertain and

carry out the legislature's intent.8 If a statute's meaning is plain on its face, then

the court must give effect to that plain meaning.9 Under the plain meaning rule,

such meaning is derived from all that the legislature has said in the statute and

related statutes that disclose legislative intent about the provision in question.10

A court should not adopt an interpretation that renders any portion of the statute

meaningless or superfluous.11 The meaning of a statute is a question of law that

the court reviews de novo.12

       Under RCW 9.94A.660(3), the DOSA statute:

               Ifthe sentencing court determines that the offender is
       eligible for an alternative sentence under this section and that the
       alternative sentence is appropriate, the court shall waive
       imposition of a sentence within the standard sentence range
       and impose a sentence consisting of either a prison-based
       alternative under RCW 9.94A.662 or a residential chemical
       dependency treatment-based alternative under RCW 9.94A.664.t13]

       7 RCW 9.94A.660(3); RCW 9.94A.655(4).

       8 Dep't of Ecology v. Campbell & Gwinn. LLC, 146 Wn.2d 1, 9, 43 P.3d 4
(2002).

       9 jd, at 9-10.

       10 kL at 11.

       11 State v. Keller, 143 Wn.2d 267, 277, 19 P.3d 1030 (2001).

       12 id, at 276.

       13 (Emphasis added.)
No. 72328-6-1/6




      Similarly, under RCW 9.94A.655(4), the PSA statute:

              Ifthe sentencing court determines that the offender is
      eligible for a sentencing alternative under this section and that the
      sentencing alternative is appropriate and should be imposed, the
      court shall waive imposition of a sentence within the standard
      sentence range and impose a sentence consisting of twelve
      months of community custody. The court shall consider the
      offender's criminal history when determining ifthe alternative is
      appropriate.'141

       Both of these alternative sentencing provisions permit a sentencing court

to waive imposition of a sentence within the standard sentence range,

conditioned on the court's determination that an offender is otherwise eligible for

the alternative. Thus, the question is what "standard sentence range" means in

these two statutes.

       Division Three answered this question in Gutierrez v. Department of

Corrections.15 In that case, Ray Roy Gutierrez pleaded guilty to delivery of a

controlled substance and stipulated to the related enhancement that the offense

occurred within 1,000 feet of a school bus route.16 The enhancement added 24

months to a base standard range of 12 to 20 months.17 The parties jointly

recommended a DOSA sentence to the court.18 The DOSA statute required the

trial court to impose a sentence at the midpoint of the "standard sentencing


       14 (Emphasis added.)

       15 146 Wn. App. 151, 188 P.3d 546 (2008).

       16 Id, at 152-53.

       17 Id, at 153.

       18 Id.
No. 72328-6-1/7


range" and to divide that time evenly between incarceration and community

custody.19

       Based on the base standard range plus the enhancement, the trial court

concluded that a standard range of 36 to 44 months applied at sentencing.20 In

accordance with the DOSA statute, it imposed a midrange sentence of 40

months and suspended half of that time, effectively requiring Gutierrez to serve

20 months in prison and 20 months on community custody.21

       The Department of Corrections (DOC) challenged this computation of

Gutierrez's DOSA sentence. It argued that the statutory scheme required

Gutierrez to serve the entire 24-month school zone enhancement in total

confinement.22 It asserted that the DOSA portion of his sentence should be

based on a 16-month sentence—the midpoint of the base 12 to 20 month range,

exclusive of the 24-month enhancement.23 Division Three disagreed. It

concluded that the trial court did not err when it calculated Gutierrez's

sentence.24 In reaching this conclusion, the court reviewed the language of the

statute governing drug crime enhancements in effect at that time, former RCW

9.94A.533(6) (2006). That statute provided:


       19 Id, (emphasis omitted) (quoting former RCW 9.94A.660(5)).

       20 Id

       21 Id

       22 Id

       23 jd at 154.

       24 Id. at 154-57.
No. 72328-6-1/8


               An additional twenty-four months shall be added to the
       standard sentence range for any ranked offense involving a
       violation of chapter 69.50 RCW if the offense was also a violation of
       RCW 69.50.435 or 9.94A.605. All enhancements under this
       subsection shall run consecutively to all other sentencing
       provisions, for all offenses sentenced under this chapter.

      The court rejected DOC's argument that the enhancement is a separate

sentencing provision from the base "standard range" and that only the base is

considered when determining a DOSA sentence.25 It considered both the SRA's

definition of "standard sentence range" and related case law and stated,

"Uniformly, the enhanced range is considered a standard range term and a

departure from that range is an exceptional sentence."26

      The court next reasoned that the trial court's approach was consistent with

the command of the first sentence of the statute that the enhancement be

"added to the range rather than treated as a separate sentencing provision."27 It

stated, "Courts have routinely interpreted this command, as in the case of other

enhancements, as increasing each end of the initial base range by the length

specified for the enhancement."28 And it stated, "A sentence range increased by

an enhancement is still a standard range sentence."29




      25 ]d    at 154-55.

      26 Id at 155.

      27 id

      28 id

      29 Id.


                                            8
No. 72328-6-1/9


      The court then concluded, "[N]either the definition of 'standard sentence

range' nor the longstanding practice of adding enhancements to a base range to

create a new 'standard range' supports [DOC's] position that the phrase refers

only to an unenhanced 'base' range."30
      To our knowledge, no case has rejected the reasoning in Gutierrez.

Moreover, the legislature has not amended the language of that subsection of the

statute since that case was decided.

      We agree with and expressly adopt the reasoning of Gutierrez.
      Here, Mohamed was convicted of four counts of delivery of cocaine. The

jury found by special verdict that three ofthese counts were committed within
1,000 feet of a school.

       Mohamed sought three things at the sentencing hearing. He sought an

alternative sentence under PSA. Alternatively, he sought a DOSA. Finally, he

sought a mitigated exceptional sentence. The court denied all of these requests.
      The trial court concluded that the base standard range was 20 to 60

months for each count, to run concurrently. Based on the jury's verdict, the court

also concluded that three enhancements of 24 months each would apply to the

delivery convictions.

      As for the alternative sentences request, neither party brought Gutierrez to

the attention of the sentencing court. Thus, the court was unaware of the

reasoning of that case. Without the benefit of that knowledge, the court




       30 Id.
No. 72328-6-1/10


concluded that it lacked the authority to waive the enhancements if it chose to

impose an alternative sentence.

       The failure to consider waiving the school zone enhancements and

imposing a DOSA or a PSA was error. That is because both of the governing

statutes permit the waiver of "a sentence within the standard sentence range" if

the court believes an offender is eligible for such an alternative sentence.31

Because "standard sentence range" means the base sentence range plus

enhancement of such range, a sentencing court may waive the enhancements as

part of the standard sentence range under a DOSA or PSA.

       We also conclude that Gutierrez is correct for another reason—the

language in RCW 9.94A.533(6) differs from that used in the firearm and deadly

weapon enhancement statutes.

       "'[W]here the Legislature uses certain statutory language in one instance,

and different language in another, there is a difference in legislative intent.'"32

       Both the firearm and deadly weapon enhancement subsections expressly

state that those enhancements "shall be served in total confinement"33 In

contrast, the school-zone enhancement subsection does not contain a similar

requirement that the enhancement be served "in total confinement."34 This



       31 RCW 9.94A.660(3), RCW 9.94A.655(4) (emphasis added).

       32 Guillen v. Contreras, 169 Wn.2d 769, 776, 238 P.3d 1168 (2010)
(internal quotation marks omitted) (quoting State v. Jackson, 137 Wn.2d 712,
724,976P.2d 1229(1999)).

       33 RCW 9.94A.533(3)(e), RCW 9.94A.533(4)(e) (emphasis added).

       34 See RCW 9.94A.533(6).
                                              10
No. 72328-6-1/11


further supports the conclusion that the enhancements may be waived under a

DOSA or a PSA.

       The State makes several arguments, urging us not to follow the reasoning

of Gutierrez. None are persuasive.

       First, the State argues that the second sentence of RCW 9.94A.533(6)

evidences the legislature's intent to require enhancements to run consecutively

both to the base range or sentencing alternative and to each other. Specifically,

the State emphasizes two words in that sentence: "All enhancements under this

subsection shall run consecutively to all other sentencing provisions, for all

offenses sentenced under this chapter."35

       As we understand the State's argument, it reads the above language—"all

other"—to negate the trial court's ability to waive enhancements as part of a PSA

or DOSA. We disagree with this reading.

       As the State correctly points out, this language was added to RCW

9.94A.533(6) in response to the supreme court's decision in State v. Jacobs.36

The amendment's legislative history confirms this.

       In Jacobs, the defendants were convicted of manufacturing a controlled

substance within 1,000 feet of a school bus stop, while a person under 18 was

present.37 The sentencing court imposed two 24-month enhancements and




       35 Brief of Respondent at 27 (emphasis in original).

       36 154 Wn.2d 596, 115 P.3d 281 (2005).

       37 id at 599.


                                            11
No. 72328-6-1/12


applied them consecutively to each other.38 The supreme court held that the first
sentence of former RCW 9.94A.533(6) was ambiguous as to whether the

enhancements were to be served "consecutively or concurrently to one another

or to other enhancements."39 The supreme court held the rule of lenity applied

because of the ambiguity, concluding that the enhancements were to be served

concurrently.40

       In response, the legislature amended RCW 9.94A.533(6) by adding the

second sentence to the subsection. The second sentence states: "All

enhancements under this subsection shall run consecutively to all other

sentencing provisions, for all offenses sentenced under this chapter."41
Significantly, nowhere either in the amendment or in the legislative history is
there any suggestion that the amendment was intended to deal with any issue

other than the ambiguity that the supreme court identified in Jacobs. That is,

nothing shows an intent to limit the court's authority to waive the enhancements if
it chose to impose an alternative sentence. Thus, the State's reliance on the

words that it emphasizes in its argument is misplaced.

       Even ifwe were to accept the State's argument that the legislature

intended the enhancements to run consecutively to the DOSA or PSA, there

would be more than one reasonable reading of this amendment. It is, at least,


       38 Id at 600.

       39 Id at 602.

       40 id

       41 RCW 9.94A.533(6).

                                            12
No. 72328-6-1/13


equally plausible that the amendment does not address whether enhancements

are to run "consecutively to each other." In that case, an ambiguity would exist.

Thus, we would apply the rule of lenity to apply the less harsh reading to the

statute.42

       Second, the State argues, without citation to any authority, "By making the

enhancements consecutive to each other and all other sentencing provisions, the

legislature ensured that a defendant's total sentence would always be longer with

a school zone enhancement than without it."43 The contention that the legislature

intended that a defendant's total sentence would "always" be longer with a school

zone enhancement is simply untenable. That is because the alternative

sentencing statues permit the waiver of a standard sentence range under the

provisions of those statutes. Accordingly, this argument is unpersuasive.

       Finally, the State asserts the "fault in the logic of Gutierrez comes to light

when faced with a case like this one, where a defendant is convicted of multiple

counts with separate school zone enhancements."44 We disagree that there is

any fault in the logic of Gutierrez. But this argument raises an issue of how to

apply the principles of that case to this one.

       In Gutierrez, there was one conviction for delivery of a controlled

substance and one school bus route enhancement arising from that underlying

conviction. Here, there were four separate convictions for delivery of cocaine


       42 Jacobs, 154 Wn.2d at 601.

       43 Brief of Respondent at 26.

       44 Id. at 28.


                                             13
No. 72328-6-1/14


and three separate enhancements, each arising from separate underlying

convictions.

         In this case, the State took the position at sentencing that Mohamed "will

be serving 72 months in prison for the [three school zone] enhancements."45
This recommendation is necessarily based on the State's then view that the three

school zone enhancements of 24 months each were to run consecutively to each

other.

         The sentencing court adopted this view, as evidenced by its statement at

the hearing:

         There has to be a 72-month sentence [school zone enhancement].
         I have no choice in the matter.[46]

         On appeal, the State argues that if we follow Gutierrez, "Mohamed's

standard ranges become 44 to 84 months on counts two, three, and four... ."47
This argument necessarily assumes that each enhancement runs consecutively

to the corresponding underlying conviction, but not consecutively to each other.

That is because each underlying conviction has a base range of 20 to 60 months.

When a 24-month enhancement is added to each end, the result is 44 to 84

months.




         45 Clerk's Papers at 152.

         46 Report of Proceedings (August 1, 2014) at 594.

         47 Brief of Respondent at 29.

                                               14
No. 72328-6-1/15


       We note that the State's characterization of Mohamed's position is not

consistent with his briefing on appeal.48 But the State's characterization does

illustrate that there is another plausible reading of the second sentence of RCW

9.94A.533(6).

       On the briefing before us, we cannot reconcile these conflicting

statements of how that second sentence of the statute should be properly read.

But it is clear that determination of the correct standard sentence range, as we

construe that phrase, impacts the correctness of the sentences the trial court

imposed in this case. Moreover, it would also impact any DOSA or PSA that the

court, in its discretion, could choose to impose ifwe remand for a new sentencing

hearing.

       In sum, the trial court had the authority to waive the enhancements if it

chose to impose either a DOSA or a PSA. The trial court improperly concluded

that it lacked such authority.

       Finally, we note that the trial court also rejected Mohamed's request for a

mitigated exceptional sentence. We hold that the court did not abuse its

discretion when it denied this request.

       In his sentencing memorandum, Mohamed sought a mitigated exceptional

sentence based on what he called "sentencing entrapment" and "sentencing

manipulation."49 Specifically, he argued that the police took certain strategic




       48 See Appellant's Opening Brief at 10.

       49 Clerk's Papers at 108-13.

                                            15
No. 72328-6-1/16


actions, such as increasing the number of controlled buys, to effectuate a higher

sentence.


       The trial court rejected his request, stating that it found "absolutely no

evidence of entrapment."50 The trial court considered the facts and properly

exercised its discretion in rejecting the request on the basis made.

                                      Remedy

       Because the sentencing court mistakenly believed that it had no authority

to waive the enhancements if it chose to impose an alternative sentence, a

remaining question is whether Mohamed is entitled to a remedy. We conclude

that he is entitled to remand for a new sentencing hearing so that the court may

consider the full range of available options.

       In In re Mulholland. the supreme court granted Daniel Mulholland's

personal restraint petition and remanded for resentencing after concluding that

the trial court sentenced Mulholland while it possessed "a mistaken belief that it

did not have the discretion to impose a mitigated exceptional sentence for which

[Mulholland] may have been eligible."51 While the record did not show that it was

a certainty that the trial court would have imposed a mitigated exceptional

sentence, "[T]he trial court's remarks indicated] that it was a possibility," and the

court concluded this was sufficient to warrant resentencing.52




       50 Report of Proceedings (August 1, 2014) at 618.

       51 161 Wn.2d 322, 333, 166 P.3d 677 (2007).

       52 ]d at 334.

                                                16
No. 72328-6-1/17


       Here, in its sentencing memorandum, the State agreed that Mohamed

was eligible for a prison based DOSA. The State also agreed that Mohamed was

likely eligible for a PSA.53 But it argued that "[a]s a practical matter, th[e] court

should not grant a PSA in this case due to the fact that [Mohamed] will be serving

72 months in prison for the enhancements" and "[t]he purpose of the PSA would

be completely nullified . . . ."54 As we explained earlier in this opinion, this

argument is based on an erroneous interpretation of the law.

       The trial court accepted this erroneous interpretation and, after stating its

belief that it lacked authority to grant a reduction of the school zone

enhancements, it imposed the lowest standard range. This court cannot be

confident that the trial court would impose the same sentence if informed of the

proper law. For this reason, remand is appropriate.

       The State argues that any error in the trial court's belief that it had no

authority to reduce the school zone enhancements as part of an exceptional

sentence was harmless because the trial court found that an exceptional

sentence was not warranted. But an exceptional sentence is separate from the

alternative sentencing provisions of a DOSA or PSA. As we explained earlier,

and as the State acknowledged in its sentencing memorandum, a DOSA and a

PSA were possible alternatives in this case. Thus, we reject this argument.

       Accordingly, we remand to the trial court for a new sentencing hearing. At

that hearing, the court will have the opportunity to consider the full range of


       53 Clerk's Papers at 152.

       54 Id.


                                              17
No. 72328-6-1/18


sentencing options available to it. We express no opinion on what sentences are

proper. That is left to the sound exercise of discretion by the trial court.

                             LIMITING IMPEACHMENT

       For the first time on appeal, Mohamed argues that the trial court

improperly limited impeachment of the informant by excluding evidence of his

prior criminal convictions. Specifically, he contends this violated his

constitutional right to confront witnesses. Because he failed to preserve this

claim below and the claim is not manifest, we decline to address it.

       This court may refuse to review any claim of error that was not raised in

the trial court.55 And generally, a theory not presented to the trial court will not be

considered on appeal.56

       Prior to trial, the State disclosed that the informant had several prior

convictions from 1997 to 2003. Mohamed sought to admit these convictions,

arguing that the informant's "criminal activity while a paid informant for [SPD]

goes to his trustworthiness, and shows that he violated [SPD] rules for

confidential informants ... ,"57 The State argued that the convictions were

inadmissible under ER 609. The trial court agreed and excluded the evidence.

Mohamed did not argue any constitutional claim below.




       55 RAP 2.5(a).

       56 Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 290, 840 P.2d 860
(1992).

       57 Clerk's Papers at 145.

                                              18
No. 72328-6-1/19


       On appeal, Mohamed concedes that the informant's prior convictions are

inadmissible under ER 609. But he argues that the prior convictions should have

been admitted "because the Sixth Amendment confrontation clause guarantees

the right to present evidence ofa witness's bias or motivation."58
       Mohamed fails to show that he can raise this claim for the first time on

appeal under RAP 2.5(a)(3). Under that rule, a claim of error may be raised for

the first time on appeal if it is a manifest error affecting a constitutional right. To

raise an error for the first time on appeal, an appellant must demonstrate (1) the

error is truly of constitutional dimension, and (2) the error is manifest.59
"'Manifest in RAP 2.5(a)(3) requires a showing of actual prejudice.'"60 "To
demonstrate actual prejudice, there must be a 'plausible showing by the

[appellant] that the asserted error had practical and identifiable consequences in
the trial of the case.'"61 "[T]he focus of the actual prejudice must be on whether

the error is so obvious on the record that the error warrants appellate review."62




       58 Appellant's Opening Brief at 6.

       59 State v. O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009).

       60 Id at 99 (internal quotation marks omitted) (quoting State v. Kirkman,
159Wn.2d918, 935, 155 P.3d 125 (2007)).

       61 ]d (alteration in original) (internal quotation marks omitted) (quoting
Kirkman. 159 Wn.2d at 935).

       62 id at 99-100.

                                               19
No. 72328-6-1/20


       The Confrontation Clause of the Sixth Amendment guarantees the right to

impeach prosecution witnesses with evidence of bias.63 Thus, Mohamed raises

an alleged error of constitutional magnitude.

       But Mohamed fails to show that the alleged error was manifest. The

exclusion of the informant's prior convictions did not have practical and

identifiable consequences at trial. Mohamed was able to successfully attack the

informant's credibility at trial even without this evidence. For example, Mohamed

elicited testimony from the informant that he was not always truthful with

Detective DeJesus and lied to him twice. Mohamed also elicited testimony from

the informant that, after this operation began, he bought and delivered cocaine

without SPD's permission and that SPD would just scold him. In closing

argument, Mohamed argued that the informant was not authorized to sell or

deliver cocaine, he was violating the law and the detective "turned a blind eye."64

Thus, Mohamed was able to argue his bias theory to the jury.

                                   VOUCHING


       For the first time on appeal, Mohamed argues that Detective DeJesus

improperly vouched for the credibility of the informant while testifying. Because

he did not preserve this claim below and has not shown he may do so on appeal,

we decline to reach this issue.

       "Generally, witnesses are not permitted to testify regarding the veracity of

another witness because such testimony invades the province of the jury as the


      63 State v. Johnson, 90 Wn. App. 54, 69, 950 P.2d 981 (1998).

      64 Report of Proceedings (June 30, 2014) at 537.

                                            20
No. 72328-6-1/21


fact finder in a trial."65 "Such testimony from a law enforcement officer may be

especially prejudicial because the officer's testimony often carries a special aura

of reliability."66

        As stated earlier, a claim of error may be raised for the first time on appeal

if it is a manifest error affecting a constitutional right. "Admission of witness

opinion testimony on an ultimate fact, without objection, is not automatically

reviewable as a 'manifest' constitutional error."67 "'Manifest error' requires a

nearly explicit statement by the witness that the witness believed the accusing

victim."68

        Here, Mohamed alleges that Detective DeJesus testified to an improper

opinion on the informant's credibility when he testified that the informant was

"very honest." This testimony was elicited when the prosecutor asked Detective

DeJesus to describe the informant. He replied:

               Oh, he's about five-eight, kind of dark-skinned, 63 years old,
        very nice guy, great worker, very honest, and very—well, he's
        been with us for 20 years, so he's very professional when it comes
        to the work, so.t69]




        65 State v. Demerv, 144 Wn.2d 753, 764, 30 P.3d 1278 (2001).

        66 id at 765.

        67 Kirkman, 159 Wn.2d at 936.

        68 id

        69 Report of Proceedings (June 24, 2014) at 82 (emphasis added).

                                              21
No. 72328-6-1/22


Mohamed's attorney did not object to this testimony, so he must demonstrate

that this claim falls within the scope of RAP 2.5. Mohamed does not articulate

how this meets the requirements of that rule.

        Impermissible opinion testimony regarding credibility raises an alleged

error of constitutional dimension—the defendant's constitutional right to a jury

trial, which includes the independent determination of the facts by the jury.70

       Thus, the next question is whether this error is manifest. We fail to see

how this comment had practical and identifiable consequences in the trial of the

case. The comment was fleeting and was about the informant's honesty in

general. It was not an explicit statement by the detective that he believed the

informant in this case. In context, it is strikingly different than when a prosecutor

directly asks a witness about the credibility of another witness or where the

credibility assessment is the focal point of the witness's answer. In short,

because Mohamed fails to show actual prejudice, we conclude that this is not a

manifest constitutional error.

       We affirm the convictions and remand for a new sentencing hearing for

the trial court to consider the full range of available sentencing options.




WE CONCUR:




       70 See Kirkman. 159 Wn.2d at 927.


                                             22
