¶28 I disagree with the majority's holding that Vancouver Police Officer Jeff Starks was not authorized to issue a citation to Tyler King for reckless driving under the emergency exception to territorial jurisdiction, RCW 10.93.070(2).10 Given the facts of this case, I would hold that Officer Starks had authority to cite King because King's actions presented "an emergency involving an immediate threat to human life or property." RCW 10.93.070(2). I would also hold that the trial court's admission of Officer Starks' opinion testimony was not a manifest constitutional error. Thus, it cannot be challenged *Page 338 for the first time on appeal.11 I would, therefore, uphold King's reckless driving conviction, and, accordingly, I dissent.
¶29 The trial judge held that reckless driving is an emergency situation pursuant to RCW 10.93.070(2). Although I would not broaden the emergency exception to territorial jurisdiction to include all reckless driving per se, it is nonetheless my view that the trial judge was justified in concluding that the exception applies in this case. The legislature enacted the emergency exception as a part of the Washington Mutual Aid Peace Officer Powers Act of 1985, chapter 10.93 RCW, and directed that the chapter be "liberally construed to effectuate the intent of the legislature to modify current restrictions upon the limited territorial and enforcement authority of general authority peace officers and to effectuate mutual aid among agencies." RCW 10.93.001(3). Considering the legislature's intent to expand the authority of law enforcement officers to act and the undisputed fact that Officer Starks observed King riding his motorcycle in the state of Washington at a speed of 70 m.p.h. before standing on the pegs of the motorcycle for several seconds and then accelerating to pass a truck, it is my conclusion that "an emergency involving an immediate threat to human life or property" pursuant to RCW 10.93.070(2) was presented by King's actions.12 That being the *Page 339 case, Officer Starks had authority to stop King and cite him for reckless driving.
¶30 Because the majority has concluded otherwise, it has declined to decide whether King's challenge to Officer Starks' opinion testimony13 can be considered for the first time on appeal. Majority at 333. As it is my view that the citation of King was authorized pursuant to the emergency exception, I must decide this question. King contends that he may challenge the admission of Officer Starks' opinion testimony, which the State correctly concedes was improper, because it was a manifest error affecting a constitutional right. Pet'r's Opening Br. at 11-13; see RAP 2.5(a)(3). "This exception [to the general rule that appellate courts will not consider issues raised for the first time on appeal] is a narrow one, and we have found constitutional error to be manifest only when the error caused actual prejudice or practical and identifiable consequences." State v. Montgomery, 163 Wn.2d 577,595, 183 P.3d 267 (2008) (citing State v. Kirkman,159 Wn.2d 918, 934-35, 155 P.3d 125 (2007)). "Admission of witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable as a `manifest' constitutional error." Kirkman, 159 Wn.2d at 936. Thus, King must show actual prejudice before we may review Officer Starks' opinion testimony.
¶31 "Important to the determination of whether opinion testimony prejudices the defendant is whether the jury was properly instructed." Montgomery, 163 Wn.2d at 595 (citing Kirkman, 159 Wn.2d at 937). InKirkman, we concluded that the defendant was not prejudiced by allegedly improper opinion testimony on witness credibility in part because the jury was instructed that jurors "`are the sole judges of the credibility of the witnesses`" and that jurors "`are not bound`" by expert witness opinions.Kirkman, *Page 340 159 Wn.2d at 937 (quoting Clerk's Papers). InMontgomery, where "[v]irtually identical" instructions were given, we likewise concluded that the record did not establish that the challenged opinion testimony resulted in actual prejudice. Montgomery, 163 Wn.2d at 596 (citingMontgomery Report of Proceedings). Here, the record similarly demonstrates that the jurors received jury instructions that were generally consistent with those inKirkman and Montgomery.14 The jurors were also instructed that they could consider seven factors "[i]n considering a witness's testimony." Report of Proceedings (RP) at 263.15 There is no evidence that the jury was unfairly influenced, and "we should presume the jury followed the court's instructions absent evidence to the contrary."Montgomery, 163 Wn.2d at 596 (citing Kirkman,159 Wn.2d at 928).
¶32 Finally, I note that the record also shows that independent of Officer Starks' opinion testimony, the jury was told by the trial judge that King had been cited and "charged . . . with the offense of reckless driving" by a "Vancouver police officer." RP at 92. When the judge invited the prosecutor and defense counsel to introduce themselves and any witnesses to the jury, the prosecutor introduced "Officer Jeffrey Starks of the Vancouver Police Department" as a witness. Id. at 93. Moreover, King's attorney, in his opening statement to the jury, stated that "Officer Starks made a mistake" and that King's conduct "wasn't reckless."Id. at 155-56, 157. It is clear, therefore, that the jury knew, prior to Officer Starks' testifying, that he had cited King for reckless driving. Consequently, it was no surprise for the jury to hear Officer Starks testify that, in his opinion, *Page 341 King's actions constituted reckless driving. The effect of Officer Starks' opinion testimony, if any, was minimal and falls far short of being prejudicial to King.
¶33 For the reasons stated above, I would uphold King's conviction for reckless driving. Because the majority does otherwise, I dissent.
OWENS, J., concurs with ALEXANDER, C.J.
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"(2) In response to an emergency involving an immediate threat to human life or property."