FILED NOVEMBER 16, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 37865-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ROGER DEAN LEWIS, ) ) Appellant. )
LAWRENCE-BERREY, J. — Roger Lewis appeals after being convicted of
attempting to elude a police vehicle. He argues reversal is required because a law
enforcement officer testified his driving was reckless and because his counsel was
ineffective for failing to object to this testimony. He alternatively argues resentencing is
required because his offender score includes convictions based on an unconstitutional
statute. The State concedes that resentencing is required. We affirm Mr. Lewis’s
conviction and remand for resentencing.
FACTS
The State charged Roger Lewis with attempting to elude a police vehicle. The
matter proceeded to a jury trial. No. 37865-9-III State v. Lewis
Deputy Sheriff Amber Tyler testified that she attempted to stop a green Dodge
Dakota pickup on Interstate 90 after learning that its tabs were four-years expired. When
she activated her patrol lights, the driver exited the freeway, slowed, let out a passenger,
and then ran a red light, increased speed, and returned to the freeway.
Deputy Tyler testified that the driver, once on the freeway, consistently drove 20
miles per hour over the posted 60 mile per hour speed limit and repeatedly changed lanes
without signaling and within close proximity to other cars. The State asked:
Q. . . . In your experience, how would you categorize this type of driving? A. I would categorize it— [DEFENSE COUNSEL]: Objection. Speculation. THE COURT: Overruled. A. I would categorize it as reckless. Q. Did you feel the defendant was placing other members of the public in danger? A. Yes. Q. How so? A. By not signaling at the speeds at which we were driving, passing the other vehicles, and the way he was cutting off traffic as he was merging. .... Q. . . . At any point, did you have to terminate the pursuit? A. Yes. Q. Why is that? A. The vehicle exited onto Division in [downtown Spokane], and due to the amount of traffic and the way he was driving, it was too much of a danger to the public to continue. Q. Okay. And where was the pursuit ended? A. Division.
2 No. 37865-9-III State v. Lewis
Report of Proceedings at 135-36.
Through various witnesses, the State presented evidence that the pickup’s driver
was Mr. Lewis. The defense theory of the case was mistaken identity. Mr. Lewis called
an expert witness to testify about the likelihood of false eyewitness evidence.
The court instructed the jury on the law. The instructions repeatedly emphasized
the role of the jury as factfinder. Jury instruction 1 informed the jury of its “duty to
decide the facts in this case based upon the evidence presented . . . during this trial,” and
that “[y]ou are also the sole judges of the value or weight to be given to the testimony of
each witness.” Clerk’s Papers (CP) at 20. Jury instruction 6 informed the jury that a
witness with “special training, education, or experience may be allowed to express an
opinion” but that it was “not, however, required to accept his or her opinion.” CP at 27.
The jury returned a verdict of guilty.
The trial court sentenced Mr. Lewis based on an offender score of 9+, which
included three previous convictions for possession of a controlled substance and one
previous conviction for conspiracy to possess a controlled substance.
3 No. 37865-9-III State v. Lewis
ANALYSIS
A. IMPERMISSIBLE OPINION CLAIM
Mr. Lewis argues his conviction must be reversed because Deputy Tyler provided
an impermissible opinion of his guilt when she testified that his driving was reckless,
which is an element of the crime of attempting to elude a police vehicle.
The State contends the issue was not preserved and is not reviewable as a manifest
error affecting a constitutional right. We agree that the error was not preserved, but we
conclude it is reviewable.
At trial, the State asked the deputy to categorize Mr. Lewis’s driving. Although
defense counsel objected, she objected that the question called for speculation, not for an
improper opinion.
In general, we do not review unpreserved claims of error on appeal. RAP 2.5(a).
One exception allows us to review a claim of “manifest error affecting a constitutional
right.” RAP 2.5(a)(3). Here, the claim of error affects a constitutional right:
Impermissible opinion testimony of guilt violates the defendant’s constitutional right to a
jury trial, which includes the independent determination of the facts by the jury. State v.
Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). Also, the claim of error is manifest:
An explicit or almost explicit witness opinion on an ultimate issue of fact is reviewable as
4 No. 37865-9-III State v. Lewis
a claim of manifest error. Id. at 936-37. The deputy’s opinion that Mr. Lewis’s driving
was reckless was an explicit opinion on an ultimate issue of fact. We therefore address
Mr. Lewis’s claim that the opinion was an impermissible opinion of his guilt.
“Testimony in the form of an opinion or inferences otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
ER 704. Whether a permissible opinion of an ultimate issue of fact is also an
impermissible opinion of guilt depends on the specific circumstances of each case. State
v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (plurality opinion). In determining
whether testimony constitutes an impermissible opinion, courts review the following
factors: (1) the type of witness involved, (2) the specific nature of the testimony, (3) the
nature of the charge, (4) the type of defense, and (5) the other evidence before the trier of
fact. Id. As illustrated by the following two cases, what often distinguishes a permissible
opinion from an impermissible one is the extent to which the witness’s opinion is based
on observations that a trier of fact is capable of independently evaluating.
In City of Seattle v. Heatley, 70 Wn. App. 573, 576, 854 P.2d 658 (1993), an
officer testified about the defendant’s performance of field sobriety tests, including
reciting the alphabet, counting backward, and performing balance tests. The officer then
expressed his opinion that the defendant was obviously intoxicated. Id. We concluded
5 No. 37865-9-III State v. Lewis
that the opinion was not an impermissible opinion of guilt, largely because the opinion
was based on information jurors are capable of independently evaluating. Id. at 581-82.
In State v. Quaale, 177 Wn. App. 603, 607-08, 312 P.3d 726 (2013), aff’d, 182
Wn.2d 191, 340 P.3d 213 (2014), an officer testified that the defendant was impaired
based on the results of a horizontal gaze nystagmus test. We concluded that the opinion
was an impermissible opinion of guilt, largely because the opinion was based on
information jurors are not capable of independently evaluating. Id.
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FILED NOVEMBER 16, 2021 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) No. 37865-9-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) ROGER DEAN LEWIS, ) ) Appellant. )
LAWRENCE-BERREY, J. — Roger Lewis appeals after being convicted of
attempting to elude a police vehicle. He argues reversal is required because a law
enforcement officer testified his driving was reckless and because his counsel was
ineffective for failing to object to this testimony. He alternatively argues resentencing is
required because his offender score includes convictions based on an unconstitutional
statute. The State concedes that resentencing is required. We affirm Mr. Lewis’s
conviction and remand for resentencing.
FACTS
The State charged Roger Lewis with attempting to elude a police vehicle. The
matter proceeded to a jury trial. No. 37865-9-III State v. Lewis
Deputy Sheriff Amber Tyler testified that she attempted to stop a green Dodge
Dakota pickup on Interstate 90 after learning that its tabs were four-years expired. When
she activated her patrol lights, the driver exited the freeway, slowed, let out a passenger,
and then ran a red light, increased speed, and returned to the freeway.
Deputy Tyler testified that the driver, once on the freeway, consistently drove 20
miles per hour over the posted 60 mile per hour speed limit and repeatedly changed lanes
without signaling and within close proximity to other cars. The State asked:
Q. . . . In your experience, how would you categorize this type of driving? A. I would categorize it— [DEFENSE COUNSEL]: Objection. Speculation. THE COURT: Overruled. A. I would categorize it as reckless. Q. Did you feel the defendant was placing other members of the public in danger? A. Yes. Q. How so? A. By not signaling at the speeds at which we were driving, passing the other vehicles, and the way he was cutting off traffic as he was merging. .... Q. . . . At any point, did you have to terminate the pursuit? A. Yes. Q. Why is that? A. The vehicle exited onto Division in [downtown Spokane], and due to the amount of traffic and the way he was driving, it was too much of a danger to the public to continue. Q. Okay. And where was the pursuit ended? A. Division.
2 No. 37865-9-III State v. Lewis
Report of Proceedings at 135-36.
Through various witnesses, the State presented evidence that the pickup’s driver
was Mr. Lewis. The defense theory of the case was mistaken identity. Mr. Lewis called
an expert witness to testify about the likelihood of false eyewitness evidence.
The court instructed the jury on the law. The instructions repeatedly emphasized
the role of the jury as factfinder. Jury instruction 1 informed the jury of its “duty to
decide the facts in this case based upon the evidence presented . . . during this trial,” and
that “[y]ou are also the sole judges of the value or weight to be given to the testimony of
each witness.” Clerk’s Papers (CP) at 20. Jury instruction 6 informed the jury that a
witness with “special training, education, or experience may be allowed to express an
opinion” but that it was “not, however, required to accept his or her opinion.” CP at 27.
The jury returned a verdict of guilty.
The trial court sentenced Mr. Lewis based on an offender score of 9+, which
included three previous convictions for possession of a controlled substance and one
previous conviction for conspiracy to possess a controlled substance.
3 No. 37865-9-III State v. Lewis
ANALYSIS
A. IMPERMISSIBLE OPINION CLAIM
Mr. Lewis argues his conviction must be reversed because Deputy Tyler provided
an impermissible opinion of his guilt when she testified that his driving was reckless,
which is an element of the crime of attempting to elude a police vehicle.
The State contends the issue was not preserved and is not reviewable as a manifest
error affecting a constitutional right. We agree that the error was not preserved, but we
conclude it is reviewable.
At trial, the State asked the deputy to categorize Mr. Lewis’s driving. Although
defense counsel objected, she objected that the question called for speculation, not for an
improper opinion.
In general, we do not review unpreserved claims of error on appeal. RAP 2.5(a).
One exception allows us to review a claim of “manifest error affecting a constitutional
right.” RAP 2.5(a)(3). Here, the claim of error affects a constitutional right:
Impermissible opinion testimony of guilt violates the defendant’s constitutional right to a
jury trial, which includes the independent determination of the facts by the jury. State v.
Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). Also, the claim of error is manifest:
An explicit or almost explicit witness opinion on an ultimate issue of fact is reviewable as
4 No. 37865-9-III State v. Lewis
a claim of manifest error. Id. at 936-37. The deputy’s opinion that Mr. Lewis’s driving
was reckless was an explicit opinion on an ultimate issue of fact. We therefore address
Mr. Lewis’s claim that the opinion was an impermissible opinion of his guilt.
“Testimony in the form of an opinion or inferences otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
ER 704. Whether a permissible opinion of an ultimate issue of fact is also an
impermissible opinion of guilt depends on the specific circumstances of each case. State
v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (plurality opinion). In determining
whether testimony constitutes an impermissible opinion, courts review the following
factors: (1) the type of witness involved, (2) the specific nature of the testimony, (3) the
nature of the charge, (4) the type of defense, and (5) the other evidence before the trier of
fact. Id. As illustrated by the following two cases, what often distinguishes a permissible
opinion from an impermissible one is the extent to which the witness’s opinion is based
on observations that a trier of fact is capable of independently evaluating.
In City of Seattle v. Heatley, 70 Wn. App. 573, 576, 854 P.2d 658 (1993), an
officer testified about the defendant’s performance of field sobriety tests, including
reciting the alphabet, counting backward, and performing balance tests. The officer then
expressed his opinion that the defendant was obviously intoxicated. Id. We concluded
5 No. 37865-9-III State v. Lewis
that the opinion was not an impermissible opinion of guilt, largely because the opinion
was based on information jurors are capable of independently evaluating. Id. at 581-82.
In State v. Quaale, 177 Wn. App. 603, 607-08, 312 P.3d 726 (2013), aff’d, 182
Wn.2d 191, 340 P.3d 213 (2014), an officer testified that the defendant was impaired
based on the results of a horizontal gaze nystagmus test. We concluded that the opinion
was an impermissible opinion of guilt, largely because the opinion was based on
information jurors are not capable of independently evaluating. Id. at 617.
We now discuss the Demery factors. Here, the opinion was given by a law
enforcement officer. This risks a jury giving the opinion undue weight. But the nature of
the testimony, the nature of the charge, and the facts supporting the opinion, all lent
themselves to being easily understood by the jury. Jurors have personal experience
driving cars and being in traffic. They are fully capable of deciding whether a driver is
driving recklessly or not. Moreover, Mr. Lewis’s defense was not that his driving was
safe. His defense was that he was not the driver.
Applying the Demery factors, we conclude that Deputy Tyler’s opinion that Mr.
Lewis was driving recklessly was not an impermissible opinion of guilt. Rather, it was a
permissible opinion based on her observations, made known to the jury, which the jury
was fully capable of independently evaluating.
6 No. 37865-9-III State v. Lewis
B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
Mr. Lewis argues he received ineffective assistance of counsel when counsel failed
to object to the deputy’s impermissible opinion that his driving was reckless. We reject
this argument because, as explained above, the deputy’s opinion was permissible.
C. RESENTENCING PURSUANT TO BLAKE
Mr. Lewis argues he should be resentenced because his possession-related
convictions were included in his offender score. The State concedes that resentencing is
necessary.
In State v. Blake, 197 Wn.2d 170, 186, 481 P.3d 521 (2021), our Supreme Court
invalidated Washington’s strict liability possession of a controlled substance statute. A
prior conviction that is constitutionally invalid on its face may not be considered in a
defendant’s offender score during sentencing. State v. Ammons, 105 Wn.2d 175, 187-88,
713 P.2d 719, 718 P.2d 796 (1986). We therefore remand this matter for the trial court to
resentence Mr. Lewis with an offender score that excludes his three prior convictions for
possession of a controlled substance and his conviction for conspiracy to possess a
controlled substance.
7 No. 37865-9-III State v. Lewis
Affirmed in part, remanded for resentencing.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J. \ j WE CONCUR:
Q. JI ~ ...... ..., ' \-.• .J.
Pennell, C.J. Siddoway, J.