IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 78490-1-I
Respondent, DIVISION ONE v. UNPUBLISHED OPINION RAPHAEL ANTON HENSON,
Appellant.
LEACH, J. — Raphael Anton Henson appeals his convictions of second
degree organized retail theft and first degree trafficking in stolen property. He
claims that Seattle Police Detective Jill Vanskike provided improper opinion
testimony that denied him the constitutional right to a fair trial. Henson also
challenges the trial court’s imposition of the DNA collection fee and failure to timely
issue findings of facts and conclusions of law after a CrR 3.5 hearing. Because
neither Vanskike’s testimony, nor the untimely filing of the findings of fact and
conclusions of law prejudiced Henson, we affirm his conviction. But, we remand
for the trial court to strike the DNA collection fee.
BACKGROUND
Between September 2016 and March 2017, Marshalls and Big 5 Sporting
Goods stores at Westwood Town Center in Seattle experienced a number of thefts
by the same individual. The stores’ surveillance cameras recorded the thefts.
Citations and pincites are based on the Westlaw online version of the cited material. No. 78490-1-I/2
Numerous store employees and responding police officers identified Raphael
Anton Henson from surveillance snapshots.
Seattle Police Detective Jill Vanskike theorized that Henson was selling the
stolen items to a used clothing store called Plato’s Closet. Vanskike contacted
Plato’s Closet and asked them to call if Henson came into the store. On March 15,
2017, Plato’s Closet called Vanskike who directed police officers to respond.
Officers Ricardo Martinez, Nathan Worthen, Ken Mazzuca, and Thomas Burns
escorted Henson out of the store and arrested him. Before and after receiving his
Miranda rights, Henson made numerous statements to the officers. The items that
Henson attempted to sell to Plato’s Closet, and the items later found during a
search pursuant to a warrant of Henson’s car, matched those taken from Big 5
Sporting Goods.
On July 28, 2017, the State charged Henson with one count first degree
organized retail theft, and one count first degree trafficking in stolen property.
Henson waived his right to be represented by legal counsel.
The trial court held a pretrial CrR 3.5 hearing on September 28, 2017 and
October 2, 2017 to determine the admissibility to some of Henson’s statements to
the officers. The trial court made oral findings but did not issue written findings of
fact and conclusions of law about the admissibility of Henson’s statements until
September 5, 2019.
During trial, Kendall Fischer testified she was a cashier and sales associate
at Big 5 Sporting Goods in 2017. Fischer testified that on March 28, 2017,
2 No. 78490-1-I/3
Vanskike asked her to review six photos and identify “the chronic shoplifter.”
Fischer identified Henson in photo number three and then Vanskike wrote “chronic
shoplifter” under the photo. Vanskike testified that Henson was a “chronic
shoplifter.” Henson did not object to Vanskike’s testimony. However, the court
recognized that Vanskike’s “chronic shoplifter” testimony was “her opinion that
goes to really the essence of the crime.”
The trial court determined that the photo montages used to identify Henson,
and read into the record at trial, included Vanskike’s statement and opinion that
Henson was a “chronic shoplifter.” The trial court determined this statement “is
clearly [Vanskike’s] opinion that goes to really the essence of the crime.” The trial
court instructed the prosecution to redact the term “chronic shoplifter” from the
photo montages. The trial court also instructed the jury to disregard testimony that
Henson was a “chronic shoplifter.”
A jury found Henson not guilty of first degree organized retail theft, but
convicted him of second degree organized retail theft and first degree trafficking in
stolen property. The trial court sentenced Henson to concurrent sentences of 43
months for organized retail theft and 63 months for trafficking in stolen property.
The trial court ordered Henson to pay $600 in legal financial obligations including
a $100 DNA database fee.
Henson appeals. The trial court found Henson indigent and entitled to
counsel on appeal at public expense.
3 No. 78490-1-I/4
ANALYSIS
Opinion Testimony
For the first time on appeal, Henson asserts Vanskike’s testimony denied
him the constitutional right to a fair trial.
Generally, this court will not consider issues raised for the first time on
appeal. 1 But, a party may raise an error for the first time on appeal if it concerns
a manifest error affecting a constitutional right. 2 “The defendant has the initial
burden of showing that (1) the error was ‘truly of constitutional dimension’ and
(2) the error was ‘manifest.’” 3 “A defendant cannot simply assert that an error
occurred at trial and label the error ‘constitutional.’” 4 “The defendant must identify
a constitutional error and show how, in the context of the trial, the alleged error
actually affected the defendant’s rights; it is this showing of actual prejudice that
makes the error ‘manifest’, allowing appellate review.” 5 “If a court determines the
claim raises a manifest constitutional error, it may still be subject to harmless error
analysis.” 6
1 RAP 2.5(a). 2 RAP 2.5(a). 3 State v. Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011)
(quoting State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). 4 Grimes, 165 Wn. App. at 186. 5 State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (citing
State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988), State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992). 6 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007).
4 No. 78490-1-I/5
“Impermissible opinion testimony regarding the defendant’s guilt may be reversible
error because such evidence violates the defendant’s constitutional right to a jury
trial, which includes the independent determination of the facts by the jury.” 7
Henson’s assertion involves opinion testimony. But, because the trial court
determination went to “the essence of the crime,” it instructed the jury to disregard
Vanskike’s opinion testimony. The trial court also redacted the term “chronic
shoplifter” from the photo montages. Because we assume a jury follows the court’s
instructions and the court instructed the jury to disregard Vanskike’s opinion
testimony, the testimony did not deny Henson a fair trial. So, there is no actual
prejudice and no manifest error.
Even if Vanskike’s testimony had been a manifest error, the error would
have been harmless because ample evidence supports the jury’s finding of second
degree organized retail theft and first degree trafficking in stolen property beyond
any reasonable doubt. 8
DNA Collection Fee
Henson challenges the trial court’s imposition of a $100 DNA collection fee.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 78490-1-I
Respondent, DIVISION ONE v. UNPUBLISHED OPINION RAPHAEL ANTON HENSON,
Appellant.
LEACH, J. — Raphael Anton Henson appeals his convictions of second
degree organized retail theft and first degree trafficking in stolen property. He
claims that Seattle Police Detective Jill Vanskike provided improper opinion
testimony that denied him the constitutional right to a fair trial. Henson also
challenges the trial court’s imposition of the DNA collection fee and failure to timely
issue findings of facts and conclusions of law after a CrR 3.5 hearing. Because
neither Vanskike’s testimony, nor the untimely filing of the findings of fact and
conclusions of law prejudiced Henson, we affirm his conviction. But, we remand
for the trial court to strike the DNA collection fee.
BACKGROUND
Between September 2016 and March 2017, Marshalls and Big 5 Sporting
Goods stores at Westwood Town Center in Seattle experienced a number of thefts
by the same individual. The stores’ surveillance cameras recorded the thefts.
Citations and pincites are based on the Westlaw online version of the cited material. No. 78490-1-I/2
Numerous store employees and responding police officers identified Raphael
Anton Henson from surveillance snapshots.
Seattle Police Detective Jill Vanskike theorized that Henson was selling the
stolen items to a used clothing store called Plato’s Closet. Vanskike contacted
Plato’s Closet and asked them to call if Henson came into the store. On March 15,
2017, Plato’s Closet called Vanskike who directed police officers to respond.
Officers Ricardo Martinez, Nathan Worthen, Ken Mazzuca, and Thomas Burns
escorted Henson out of the store and arrested him. Before and after receiving his
Miranda rights, Henson made numerous statements to the officers. The items that
Henson attempted to sell to Plato’s Closet, and the items later found during a
search pursuant to a warrant of Henson’s car, matched those taken from Big 5
Sporting Goods.
On July 28, 2017, the State charged Henson with one count first degree
organized retail theft, and one count first degree trafficking in stolen property.
Henson waived his right to be represented by legal counsel.
The trial court held a pretrial CrR 3.5 hearing on September 28, 2017 and
October 2, 2017 to determine the admissibility to some of Henson’s statements to
the officers. The trial court made oral findings but did not issue written findings of
fact and conclusions of law about the admissibility of Henson’s statements until
September 5, 2019.
During trial, Kendall Fischer testified she was a cashier and sales associate
at Big 5 Sporting Goods in 2017. Fischer testified that on March 28, 2017,
2 No. 78490-1-I/3
Vanskike asked her to review six photos and identify “the chronic shoplifter.”
Fischer identified Henson in photo number three and then Vanskike wrote “chronic
shoplifter” under the photo. Vanskike testified that Henson was a “chronic
shoplifter.” Henson did not object to Vanskike’s testimony. However, the court
recognized that Vanskike’s “chronic shoplifter” testimony was “her opinion that
goes to really the essence of the crime.”
The trial court determined that the photo montages used to identify Henson,
and read into the record at trial, included Vanskike’s statement and opinion that
Henson was a “chronic shoplifter.” The trial court determined this statement “is
clearly [Vanskike’s] opinion that goes to really the essence of the crime.” The trial
court instructed the prosecution to redact the term “chronic shoplifter” from the
photo montages. The trial court also instructed the jury to disregard testimony that
Henson was a “chronic shoplifter.”
A jury found Henson not guilty of first degree organized retail theft, but
convicted him of second degree organized retail theft and first degree trafficking in
stolen property. The trial court sentenced Henson to concurrent sentences of 43
months for organized retail theft and 63 months for trafficking in stolen property.
The trial court ordered Henson to pay $600 in legal financial obligations including
a $100 DNA database fee.
Henson appeals. The trial court found Henson indigent and entitled to
counsel on appeal at public expense.
3 No. 78490-1-I/4
ANALYSIS
Opinion Testimony
For the first time on appeal, Henson asserts Vanskike’s testimony denied
him the constitutional right to a fair trial.
Generally, this court will not consider issues raised for the first time on
appeal. 1 But, a party may raise an error for the first time on appeal if it concerns
a manifest error affecting a constitutional right. 2 “The defendant has the initial
burden of showing that (1) the error was ‘truly of constitutional dimension’ and
(2) the error was ‘manifest.’” 3 “A defendant cannot simply assert that an error
occurred at trial and label the error ‘constitutional.’” 4 “The defendant must identify
a constitutional error and show how, in the context of the trial, the alleged error
actually affected the defendant’s rights; it is this showing of actual prejudice that
makes the error ‘manifest’, allowing appellate review.” 5 “If a court determines the
claim raises a manifest constitutional error, it may still be subject to harmless error
analysis.” 6
1 RAP 2.5(a). 2 RAP 2.5(a). 3 State v. Grimes, 165 Wn. App. 172, 185-86, 267 P.3d 454 (2011)
(quoting State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). 4 Grimes, 165 Wn. App. at 186. 5 State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (citing
State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988), State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992). 6 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007).
4 No. 78490-1-I/5
“Impermissible opinion testimony regarding the defendant’s guilt may be reversible
error because such evidence violates the defendant’s constitutional right to a jury
trial, which includes the independent determination of the facts by the jury.” 7
Henson’s assertion involves opinion testimony. But, because the trial court
determination went to “the essence of the crime,” it instructed the jury to disregard
Vanskike’s opinion testimony. The trial court also redacted the term “chronic
shoplifter” from the photo montages. Because we assume a jury follows the court’s
instructions and the court instructed the jury to disregard Vanskike’s opinion
testimony, the testimony did not deny Henson a fair trial. So, there is no actual
prejudice and no manifest error.
Even if Vanskike’s testimony had been a manifest error, the error would
have been harmless because ample evidence supports the jury’s finding of second
degree organized retail theft and first degree trafficking in stolen property beyond
any reasonable doubt. 8
DNA Collection Fee
Henson challenges the trial court’s imposition of a $100 DNA collection fee.
He asserts that RCW 43.43.754 relieves him from submitting a DNA sample
because he did so for an earlier conviction. The State concedes that the court
should strike the $100 DNA collection fee on remand. We accept the State’s
concession and remand for the trial court to strike it. 9
7 Kirkman, 159 Wn.2d at 927. 8 We deny the State’s request, that because the court struck Vanskike’s opinion testimony from the record and it was not admitted into evidence, this court should review the issue as a trial irregularity that denied Henson a fair trial. 9 State v. Land, 172 Wn. App. 593, 605, 295 P.3d 782 (2013).
5 No. 78490-1-I/6
CrR 3.5
In his opening brief, Henson correctly notes that the trial court did not issue
written findings of fact and conclusions of law on the admissibility of his statements
to officers following its CrR 3.5 10 hearing on September 28, 2017 and October 2,
2017. He contends remand for entry of the findings of fact and conclusions of law
is appropriate. But, after Henson filed his brief, the trial court issued findings of
fact and conclusions of law. This makes this issue moot.
Henson cites State v. Head where the Washington Supreme Court
determined the failure to enter written findings of fact and conclusions of law as
required by CrR 6.1 was cause for remand for entry. 11 There, the Court determined
“[w]e will not infer prejudice, however, from delay in entry of written findings of fact
and conclusions of law.” 12 Because Henson has not filed a reply brief and does
not appeal the trial court’s admissibility determination, he has not demonstrated he
was prejudiced by the delay. 13 And, we will not infer prejudice.
CONCLUSION
Because the trial court instructed the jury to disregard Vanskike’s opinion
testimony, Henson was not denied a fair trial. So, we affirm Henson’s conviction.
But, we remand for the trial court to strike the DNA collection fee. Henson’s
request for remand for entry of findings of fact and conclusions of law is moot.
10 CrR 3.5 11 136 Wn.2d 619, 624, 964 P.2d 1187 (1998). 12 Head, 136 Wn.2d at 625. 13 State v. Quincy, 122 Wn. App. 395, 398, 05 P.3d 353 (2004).
6 No. 78490-1-I/7
Even if it were not moot, the delay in issuing the findings of fact and conclusions
of law did not prejudice Henson.
WE CONCUR: