FILED
COLIR Of' APPEALS
M13101 xI
2013 SEP 17 AN v:4.
0
IN THE COURT OF APPEALS OF THE STATE OF WAS
DIVISION II
STATE OF WASHINGTON, No. 43180 7
-
Respondent,
V.
ARTHUR F.KERCHER III, UNPUBLISHED OPINION
JOHANSON, A. . Arthur F. Kercher III,appeals his bench trial conviction for failure
J.
C —
to register as a sex offender claiming ( 1) improper opinion testimony, (2) prosecutorial
misconduct, 3)
( reliance on inadmissible impeachment evidence, and (4)insufficient evidence to
sustain his conviction. Of the claims he preserved for,
review, Kercher demonstrates no error,
and accordingly, we affirm his conviction.
FACTS
In 2007, Kercher was convicted of second degree rape, RCW 9A. 4. As a result, he
050.
4
must register his home address with the Pierce County Sheriff. On March 11, 2011, when
Puyallup Police Detective Joseph Pihl performed a registration verification check, Kercher's
registered home address was at the Puyallup residence of his father, Arthur F.Kercher Sr.' Only
Kercher's sister and brother, Lauren and Josh Kercher, were at the address when Detective Pihl
arrived.
1
The appellant and his father share the same name. For clarity, we refer to the appellant as
Kercher"and his father as "Arthur."
No. 43180 7 II
- -
Lauren provided Detective .Pihl a written statement: "My brother, Arthur Kercher, has
moved out about two months ago and is currently staying with his mother, Erin [Taggart]. He
moved out with a friend DJ, but shortly after that, he moved in with his mom." 1 Verbatim
Report of Proceedings ( VRP) at 56. During the verification check, Detective Pihl also
telephoned Arthur, who said that Kercher had moved out " pproximately two months prior."2
a
VRP at 120. Detective Pihl then reported that Kercher had "absconded," no longer lived at
or
his registered address. 1 VRP at 45. As a result, the State charged Kercher with failure to
register as a sex offender, RCW 9A. 4.
132.
4
At a bench trial, Lauren's testimony was less definitive than her written statement, which
the trial court admitted into evidence and from which Lauren read during her testimony. She
testified that even if she had not seen Kercher at home for two months, he might still have lived
there. Arthur testified that he was uncertain when Kercher actually moved to Taggert's home
because Kercher had been slowly moving his belongings from one house to the other. Arthur
explained that he thought Kercher told him that he was moving out a day or two before Detective
Pihl's visit. Taggert thought Kercher had moved in with her after his March 17 birthday, but
Kercher actually registered at Taggart's address on March 14.
Detective Pihl testified about what he observed during his verification check at Arthur's
home, his experience, and the manner in which he typically conducts these checks. Detective
Pihl also testified in rebuttal that Arthur's March 11 representations differed dramatically from
those he offered at trial. Kercher objected, and the State expressed its intent to use Arthur's prior
inconsistent statements only for impeachment purposes. Then during closing arguments, the
2
No. 43180 7 II
- -
State drew attention to the discrepancies between Arthur's March 11 phone conversation and his
trial testimony.
'
The trial court entered findings of fact and conclusions of law, and it found Kercher
guilty of failing to register as a sex offender. Kercher appeals.
ANALYSIS
I. OPINION TESTIMONY
Kercher claims, for the first time on appeal, that Detective Pihl improperly offered
opinion testimony, stating his personal belief that Kercher was guilty. Even assuming Kercher
preserved this issue for appeal, Detective Pihl's testimony was not improper opinion evidence.
A. Standard of Review and Rules of Law
Generally, parties may not claim errors for the first time on appeal. State v. Kirkman, 159
Wn. d 918, 926 155 P. d 125 (2007).Appellants may raise a claim for the first time on appeal
2 3
if it is a "manifest error affecting a constitutional right."RAP 2. ( "[
a)( But a]
3).
5 dmission of
witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable
as a `manifest' constitutional error."Kirkman, 159 Wn. d at 936. To merit appellate review in
2
these circumstances, a defendant must show that the alleged error caused "actual prejudice" or
practical and identifiable consequences"at his trial. Kirkman, 159 Wn. d at 935,.
2
No witness, whether an expert or a lay person, may " estify to his opinion as to the guilt
t
of a defendant, whether by direct statement or inference."State v. Black, 109 Wn. d 336, 348,
2
745 P. d 12 (1987).The fact that a witness's testimony makes the defendant's guilt more likely,
2
however, shows that the testimony is relevant. See ER 401. It does not mean the testimony was
necessarily improper. City of Seattle v. Heatley, 70 Wn. App. 573, 578, 854 P. d 658 (1993),
2
3
No. 43180 7 II
- -
review denied, 123 Wn. d 1011 ( 1994).
2 T]
"[ estimony that is not a direct comment on the
defendant's guilt or on the veracity of a witness, is otherwise helpful to the [trier of fact], is
and
based on inferences from the evidence is not improper opinion testimony." Heatley, 70 Wn.
App. at 578.
Lay witnesses may give opinions and make inferences based upon rational perceptions
that will assist the trier of fact in understanding the witness's testimony and that are not based on
scientific or specialized knowledge. State v. Montgomery, 163 Wn. d 577, 591, 183 P. d 267
2 3
2008).So, a witness may properly express his opinion on a material issue of fact as long as the
witness does not tell the trier of fact what conclusion to reach. Montgomery, 163 Wn. d at 591.
2
B. Analysis
Here, though he raised no trial objection, Kercher claims constitutional error on appeal,
his right to a fair trial. He claims that two of Detective Pihl's statements caused actual prejudice:
1) statement that, If we believe that the person is not still living at the address, we refer that
his "
to the prosecutor's office," (2) classification of Kercher as "absconded." 1 VRP at 36,
and his
45. Assuming, without deciding, that Kercher preserved this issue for appeal, Kercher's
argument fails because Detective Pihl's testimony was not improper opinion testimony.
After visiting Kercher's registered address, Detective Pihl classified Kercher as
absconded"or " ot in compliance"with registration requirements. 1 VRP at 45. He made this
n
classification after phoning Arthur and taking Lauren's written statement that explained that
Kercher had moved out two months earlier. Detective Pihl also described what he observed at
Arthur's home, his experience, and how he typically conducts registration verification checks.
M
No. 43180 7 II
- -
All of these factors contributed to Detective Pihl's opinion that Kercher no longer lived at his
registered address.
As Division One of this court held in Heatley:
The fact that an opinion encompassing ultimate factual issues supports the
conclusion that the defendant is guilty does not make the testimony an improper
opinion on guilt. More important, the officer's]
[ opinion was based solely on his
experience and his observation . . . The evidentiary foundation "directly and
logically" supported the officer's conclusion. Under these circumstances, the
testimony did not constitute an opinion on guilt.
Heatley, 70 Wn. App. at 579 80 ( itations omitted).Here,Kercher claims that because Detective
- c
Pihl classified him as " having ` absconded, "' his testimony was an improper opinion on
Kercher's guilt. But, Detective Pihl rationally based this classification on his experience,
observations during the verification check, and Lauren's written statement. This evidence
supports Detective Pihl's classification and, as in Heatley, it does not constitute an improper
opinion.
II.PROSECUTORIAL MISCONDUCT
Kercher argues that the prosecutor, during closing argument, committed misconduct by
improperly inviting the trial court to rely on impeachment evidence, Arthur's March 11
telephone statements, as substantive evidence of guilt. Kercher, however, failed to preserve this
issue for appeal.
A. Standard of Review
To prevail on a prosecutorial misconduct claim, a defendant must show that in the
context of the record and all the trial circumstances, the prosecutor's conduct was improper and
prejudicial. State v. Thorgerson, 172 Wn. d 438, 442, 258 P. d 43 (2011).To show prejudice, a
2 3
5
No.43180 7 II
- -
defendant must show a substantial likelihood that the misconduct affected the verdict.
Thorgerson, 172 Wn. d at 442 43. If a defendant fails to object to misconduct at trial,he fails to
2 -
preserve the issue unless he establishes that the misconduct was so flagrant and ill intentioned
that an instruction would not have cured the prejudice. Thorgerson, 172 Wn. d at 443. We
2
consider the prosecutor's alleged improper conduct in the context of the total argument, the
issues in the case, the evidence addressed in the argument. State v. Anderson, 153 Wn. App.
417, 430, 220 P. d 1273 (2009),
3 review denied, 170 Wn. d 1002 (2010).
2
B. Analysis
Kercher contends that the prosecutor erred by inviting the trial court to use Arthur's
statements as substantive evidence of Kercher's guilt when the prosecutor argued in closing:
Mr. Kercher, Senior, informed the officer that the defendant had moved out
approximately two months prior and that initially he moved out with a friend but
that hasn't worked out and so the defendant had then moved in with his mother.
At no point in time during that conversation did Mr. Kercher Senior
express any confusion to the detective about where his son was actually residing,
and at no point in time during the conversation did Mr. Kercher Senior tell the
detective that the defendant was still residing with him.
2 VRP at 123. Kercher did not object to this argument at trial. So, to raise this issue for the first
time on appeal, he must show that the prosecutor's argument constituted flagrant and ill -
intentioned conduct that resulted in an incurable prejudice. See Thorgerson, 172 Wn. d at 443.
2
But Kercher does not demonstrate how this argument constituted flagrant or ill-
intentioned
conduct. He does not even attempt to show how the argument invited the trial court to consider
impeachment evidence for substantive evidence of guilt. The prosecutor first noted that Arthur
initially informed Detective Pihl of his impressions regarding when Kercher moved out, and only
later at trial did Arthur offer a much different account of his understanding as to when Kercher
0
No. 43180 7 II
- -
moved. Kercher does not show how this argument was anything more than the prosecutor using
impeachment evidence to undermine Arthur's credibility. Accordingly, Kercher does not
demonstrate flagrant and ill-
intentioned misconduct, so he did not preserve his prosecutorial
misconduct claim for appeal.
III. ALLEGED RELIANCE ON IMPEACHMENT EVIDENCE
Kercher next argues that the trial court improperly relied on impeachment evidence as
substantive evidence to find Kercher guilty. We disagree.
A.Standard of Review and Rules of Law
Hearsay is "a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted." ER 801( ).
c Hearsay
evidence is, generally, inadmissible. ER 802. Evidence that would otherwise constitute
inadmissible hearsay, however, may be admissible when offered for impeachment purposes to
undermine a witness's credibility. State v. Burke, 163 Wn. d 204, 219, 181 P. d 1 ( 2008).
2 3
We presume that a trial judge, because she or he is knowledgeable about evidence rules,
will separate admissible evidence from the inadmissible. State v. Miles, 77 Wn. d 593, 601, 464
2
P. d 723 ( 1970).
2 This presumption is rebuttable, however, and may be overcome upon a
showing that the trial court's verdict "is not supported by sufficient admissible evidence" or if
the judge relied on inadmissible evidence to make essential findings that it,otherwise, would not
have made. State v. Read, 147 Wn. d 238, 245 46,53 P. d 26 (2002).
2 - 3
B. Analysis
Here, during rebuttal, when the prosecutor questioned Detective Pihl about his phone
conversation with Arthur, Kercher objected, and the State provided that it offered Detective
7
No. 43180 7 II
- -
Pihl's testimony for impeachment purposes. Detective Pihl then testified that Arthur initially
said that Kercher had moved out two months before their March 11 phone conversation.
Because the State did not offer this testimony to prove the truth of the matter assertedthat
Kercher failed to register after moving out of Arthur's home but rather to impeach Arthur, the
—
statement did not constitute hearsay. See ER 801.
We next analyze whether the trial court substantively relied on this impeachment
evidence as substantive evidence of Kercher's guilt. Kercher identifies finding of fact XII,
claiming that the trial court improperly relied upon Arthur's conversation with Detective PH as
substantive evidence of guilt. Finding of fact XII states:
That Lauren Kercher utilized a phone from within the residence to contact
her father, Arthur Kercher, II. That Lauren then provided the phone to Detective
Pihl. That Detective Pihl spoke with Arthur Kercher, II on the phone. That
Arthur Kercher, II reported to Detective Pihl that defendant had moved out of his
residence approximately two months prior, and that defendant had initially moved
out to reside with a friend but that living arrangement did not work out. That
Arthur Kercher, II then reported to Detective Pihl that defendant had moved in
with his mother.
Clerk's Papers at 14. Though the trial court made a finding relating to Detective Pihl's phone
conversation with Arthur, Kercher fails to show that the trial court improperly relied on the
impeachment evidence as substantive evidence of Kercher's guilt.
In fact, contrary to Kercher's assertion that the trial court improperly relied on this
evidence to find Kercher guilty, in announcing its decision, the trial court expressly stated, the
"
State has to produce substantive evidence, not merely impeachment evidence, suggesting that the
defendant did not reside there at least for the three days or so prior to the time that he registered
on March 14th." 2 VRP at 133 (emphasis added). Therefore, the record clearly demonstrates
E?
No. 43180 7 II
- -
that the trial court was mindful to use only valid evidence in drawing its legal conclusions.
Kercher does not demonstrate how finding of fact XII proves that the trial court improperly
relied on Detective Pihl's impeachment testimony as evidence of Kercher's guilt or that it led the
trial court to make an "essential finding[ ] that it otherwise would not have made." See Read,
147 Wn. d at 246. Accordingly, Kercher does not show a trial court error.
2
IV.SUFFICIENCY OF THE EVIDENCE
Finally, Kercher argues that if the trial court had not erred in considering Detective Pihl's
impeachment testimony and opinion testimony, insufficient evidence would remain to sustain
Kercher's conviction. But because Kercher did not demonstrate that the trial court relied on any
improper evidence, his sufficiency claim fails.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
0
t S
Johanson, A. .
J.
C
We concur: / )
Penoyaj/',
1.
Fearing, J
0