IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON c_
STATE OF WASHINGTON, No. 74164-1-1 ~ Respondent, v. DIVISION ONE ir:
RONUALDO PINTINIO CASTILLO, UNPUBLISHED OPINION ^~
Appellant. FILED: January 19, 2016
Leach, J. — Ronualdo Pintinio Castillo appeals his convictions for assault
in the second degree and attempting to elude a pursuing police vehicle. He
challenges the sufficiency of the evidence to convict him of assault in the second
degree. Also, he claims the trial court abused its discretion by allowing the State
to ask a leading question on direct examination. Further, he contends that a
witness gave impermissible opinion testimony about guilt. Finally, he asserts that
no reasonable juror could have rejected his necessity defense to attempting to
elude a police vehicle. Because sufficient evidence supports each element of
assault in the second degree, the leading question was harmless, the witness did
not give an impermissible opinion about Castillo's guilt, and a reasonable fact
finder could find that Castillo failed to prove his necessity defense by a
preponderance of the evidence, we affirm. No. 74164-1-1/2
Background
On February 8, 2014, Thurston County Deputy Sherriff Michael Brooks
stopped a car that he saw traveling the wrong way down a one-way street in
downtown Olympia, Washington. Deputy Brooks stopped the car in a local
business parking lot. Washington State Patrol Trooper Guy Rosser also saw this
car and went to assist Deputy Brooks. After talking with the driver, Deputy
Brooks and Trooper Rosser discussed how to proceed with the traffic stop.
Deputy Brooks sat in the driver's seat of his car, and Trooper Rosser stood next
to the patrol car, talking to Deputy Brooks through the driver's side window.
At that point, Ronualdo Castillo's car nearly struck Deputy Brooks's patrol
car. The officers thought either that Castillo needed help or that the driver of the
stopped car had called Castillo for help. The officers decided that Trooper
Rosser should talk to Castillo while Deputy Brooks continued to process the
driver's information from the first vehicle.
Trooper Rosser walked toward Castillo's car while it was slowly rolling
through the parking lot. He and Castillo made eye contact, and Castillo
accelerated his vehicle at Trooper Rosser. To avoid getting hit, Trooper Rosser
stepped back and to the right. Trooper Rosser was holding a flashlight. As the
car accelerated past him, his hand and flashlight hit Castillo's driver's side
window. Deputy Brooks was still in his vehicle but testified that he heard
something hit a window. No. 74164-1-1/3
Castillo drove from the parking lot onto the street, traveling the wrong way.
Deputy Brooks activated his traffic lights and siren and pursued Castillo. Deputy
Brooks was in full uniform and driving a fully marked patrol vehicle. Castillo led
Deputy Brooks, along with other officers, out of Olympia and into rural Thurston
County. The pursuit reached speeds as high as 90 miles per hour. When the
paved roadway ended, Castillo pulled onto a gravel road and into a driveway.
Officers arrested him there.
Deputy Brooks testified that Castillo bragged about being a good driver
and asked him, "I'm a good driver though, right?" When Trooper Rosser asked
Castillo why he tried to run him over, Castillo replied, "Sorry." Thurston County
Sergeant Dave Odegaard also asked Castillo why he tried to run over Trooper
Rosser. Castillo laughed and said, "Because I can." The State charged Castillo
with assault in the second degree and attempting to elude a pursuing police
vehicle.
At trial, defense counsel objected1 when the State asked Trooper Rosser,
"And do you fear that you could have been severely injured or possibly killed by
being struck by a vehicle of that size?" The trial court overruled the objection and
allowed the prosecutor to repeat the question.2 Trooper Rosser answered, "Yes,
1 Defense counsel said, "Objection as to the form of the question. Leading." 2 After the trial court overruled Castillo's objection, the prosecutor asked Trooper Rosser, "Did you feel that you could have been severely injured or could have been killed by a vehicle of that size traveling at you had it struck you?" No. 74164-1-1/4
I do. I've seen several people that have been hit by cars and cars always win
against people."
Castillo testified that he believed that the sound of Trooper Rosser's
flashlight hitting his window was a gunshot and that he feared that the police
were trying to kill him. Sergeant Odegaard testified that when he asked Castillo
why he ran from police, Castillo laughed and told him that that is how he drives
and "other cops wouldn't chase him." The trial court instructed the jury on the
affirmative defense of necessity to attempting to elude a pursuing police vehicle.
The jury found Castillo guilty of assault in the second degree and attempting to
elude a pursuing police vehicle. Castillo appeals.
Analysis
Castillo raises four issues. He first contends that insufficient evidence
supports the assault in the second degree. He next challenges a trial court ruling
about a question he objected to as leading. Castillo also asserts that Trooper
Rosser gave impermissible opinion testimony about his guilt. Finally, he claims
that no rational jury could have rejected his necessity defense.
In reviewing a challenge to the sufficiency of the evidence, we view all
facts and reasonable inferences in the light most favorable to the State to
determine if any rational trier of fact could find the elements of the crime beyond
a reasonable doubt.3 When a defendant asserts an affirmative defense, but the
trier of fact rejects that defense, we look to determine if, considering the evidence
3 State v. Lord, 117 Wn.2d 829, 881, 822 P.2d 177(1991). No. 74164-1-1/5
in the light most favorable to the State, a rational trier of fact could have found
that the defendant failed to prove the defense using the applicable burden of
proof.4 The State may prove a crime's elements with either direct or
circumstantial evidence, one being no more or less valuable than the other.5 A
challenge to the sufficiency of the evidence admits the truth of the State's
evidence.6 This deferential standard leaves questions of credibility,
persuasiveness, and conflicting testimony to the jury.7 "The trier of fact makes
determinations of credibility, and we will not review those determinations on
appeal."8 We review trial court evidentiary rulings for abuse of discretion.9
Assault in the Second Degree
Castillo asserts that the record contains insufficient evidence to permit a
jury to find that he committed each element of assault in the second degree
beyond a reasonable doubt.
The State had to prove that Castillo assaulted Trooper Rosser with a
deadly weapon.10 An assault can be committed three ways. An assault is an
intentional touching or striking of another person that is harmful or offensive
4 State v. Matthews, 132 Wn. App. 936, 940-41, 135 P.3d 495 (2006). 5 State v. Delmarter. 94 Wn.2d 634, 638, 618 P.2d 99 (1980). 6 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 7 In Re Pers. Restraint of Martinez, 171 Wn.2d 354, 364, 256 P.3d 277 (2011) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992)). 8 State v. Embrv. 171 Wn. App. 714, 742, 287 P.3d 648 (2012) (citing State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004)). 9 State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). 10RCW9A.36.021(1)(c); RCW 9A.04.110(6). No. 74164-1-1/6
regardless of whether that person suffered any physical injury.11 A touching or
striking is offensive if the touching or striking would offend an ordinary person
who is not unduly sensitive.12 An assault is also an act done with intent to inflict
bodily injury upon another, tending but failing to accomplish it but accompanied
with the apparent present ability to inflict bodily injury if not prevented.13 Actual
bodily injury need not be inflicted.14 An assault is also an act done with intent to
create in another apprehension and fear of bodily injury and which in fact creates
in another a reasonable apprehension and imminent fear of bodily injury, even
though the actor did not actually intend to inflict bodily injury.15
Viewing all facts and reasonable inferences in the light most favorable to
the State, sufficient evidence supports a finding that Castillo's vehicle offensively
touched Trooper Rosser when it hit his hand. Castillo contends that his vehicle
did not contact Trooper Rosser. However, Trooper Rosser testified that he had
to move and, "as [Castillo's vehicle] accelerated right past me, that's when I
pushed even further off of it hitting it with my right hand to get away from it."
Sufficient evidence also supports a finding that Trooper Rosser had a
reasonable apprehension and imminent fear of bodily injury when Castillo
accelerated his car at him. Trooper Rosser testified that he made eye contact
with Castillo twice, they maintained eye contact, and then Castillo accelerated his
11 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.50, at 547 (3d ed. 2008) (WPIC). 12 WPIC 35.50. 13 WPIC 35.50. 14 WPIC 35.50. 15 WPIC 35.50. No. 74164-1-1/7
vehicle at him. Trooper Rosser said that if he had not moved out of the way, the
car would have hit him, he feared injury if hit, he's seen several people that have
been hit by cars, and "cars always win against people."
Viewing the record in the light most favorable to the State, the record
contains sufficient evidence about Castillo's car making contact with Trooper
Rosser and Trooper Rosser's reasonable apprehension and imminent fear of
bodily injury. Thus, sufficient evidence supports the jury's verdict that Castillo
committed assault in the second degree.
Leading Question
Castillo asserts that the trial court abused its discretion when it allowed the
State to ask Trooper Rosser a leading question on direct examination.16
A leading question suggests the desired answer.17 Leading questions
should not be used in direct examination "'except as may be necessary to
develop the witness' testimony.'"18 "The trial court has broad discretion to permit
leading questions and will not be reversed absent abuse of that discretion."19
Allowing leading questions is not usually reversible error.20 However, "'the
persistent pursuit of such a course of action is a factor to be added in the
16 The State asked Trooper Rosser, "And do you fear that you could have been severely injured or possibly killed by being struck by a vehicle of that size?" Trooper Rosser answered, "Yes, I do. I've seen several people that have been hit by cars and cars always win against people." 17 Stevens v. Gordon, 118 Wn. App. 43, 55, 74 P.3d 653 (2003) (citing State v. Scott, 20 Wn.2d 696, 698, 149 P.2d 152 (1944)). 18 Stevens. 118 Wn. App. at 55 (quoting ER 611 (c)). 19 Stevens, 118 Wn. App. at 55-56 (citing State v. Delarosa-Flores, 59 Wn. App. 514, 517, 799 P.2d 736 (1990)). 20 Stevens, 118 Wn. App. at 56. No. 74164-1-1/8
balance.'"21 Even though the question may call for a yes or a no answer, it is not
leading unless it is worded so that by permitting the witness to answer yes or no,
the witness would be testifying in the language of the interrogator rather than in
the witness's own words.22
Although the State contends that the question did not suggest the desired
answer, the question called for a yes or no answer and asked Trooper Rosser to
adopt the language of the prosecutor asking the question.
But Castillo does not show that allowing this leading question prejudiced
him. Trooper Rosser explained his answer, and the explanation did not adopt
the prosecutor's language. Considering the record, the form of the question did
not materially affect the outcome of trial. In response to other questions on direct
examination, Trooper Rosser said that Castillo accelerated his car at him and he
got out of the way while pushing off of the car. He also stated his view that
Castillo intentionally drove at him, and had he not moved to avoid Castillo's car, it
would have hit him. A jury could also reasonably infer that a vehicle accelerating
into a person would cause bodily injury.
The trial court abused its discretion when it overruled Castillo's leading
question objection because the challenged question asked Trooper Rosser to
adopt the prosecutor's language. But the error was harmless because Trooper
Rosser explained his answer, overwhelming evidence supports each element of
21 Stevens, 118 Wn. App. at 56 (quoting State v. Torres, 16 Wn. App. 254, 258, 554 P.2d 1069 (1976)). 22 Scott, 20 Wn.2d at 699.
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assault in the second degree, and the record does not show that the prosecutor
persisted with improper leading questions.
Opinion Testimony
For the first time on appeal, Castillo contends that Trooper Rosser's
testimony violated Castillo's constitutional right to a jury trial because it included
an opinion about his guilt. Appellate courts generally will not consider issues
raised for the first time on appeal.23 However, RAP 2.5(a)(3) allows a party to
raise for the first time on appeal a manifest error affecting a constitutional right.24
"Manifest" requires a showing of actual prejudice.25 The party raising the issue
must make a plausible showing that the asserted error had practical and
identifiable consequences in the trial of the case.26
Lay witnesses may give opinions or inferences based upon rational
perceptions that help the jury understand the witness's testimony and that are not
based upon scientific or specialized knowledge.27 Impermissible opinion
testimony about the defendant's guilt may be reversible error because this
evidence violates the defendant's constitutional right to a jury trial, which includes
a right to an independent determination of the facts by the jury.28 "Opinions on
23 State v. Kirkman, 159 Wn.2d 918, 926, 934, 155 P.3d 125 (2007) (citing State v.WWJ Corp.. 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)). 24 Kirkman, 159 Wn.2d at 926. 25 Kirkman. 159 Wn.2d at 935 (citing State v. Walsh. 143 Wn.2d 1,8, 17 P.3d 591 (2001)); RAP 2.5(a)(3). 26 Kirkman, 159 Wn.2d at 935. 27 State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008) (citing ER701). 28 Kirkman. 159 Wn.2d at 927. No. 74164-1-1/10
guilt are improper whether made directly or by inference."29 To determine the
admissibility of opinion testimony, the court looks to the type of witness testifying,
the specific nature of the testimony, the nature of the charges, the type of
defense, and the other evidence before the trier of fact.30 However, some areas
are clearly inappropriate for opinion testimony, such as personal beliefs about the
defendant's guilt, the intent of the accused, or the veracity of witnesses.31
In cases where Washington courts have held opinion testimony
inadmissible, the opinion evidence included explicit testimony about the
defendant's guilt and not the witness's factual observations.32
In State v. Quaale,33 a DUI (driving under the influence) case, our
Supreme Court held inadmissible a trooper's opinion about impairment, based
solely on the horizontal gaze nystagmus test and not his own observations of the
defendant.
29 State v. Quaale, 182 Wn.2d 191, 199, 340 P.3d 213 (2014) (citing Montgomery. 163 Wn.2d at 594). 30 Quaale. 182 Wn.2d at 199-200 (citing Montgomery. 163 Wn.2d at 591). 31 Quaale. 182 Wn.2d at 200 (citing Montgomery. 163 Wn.2d at 591). 32 Quaale. 182 Wn.2d at 198-99; Montgomery. 163 Wn.2d at 595 (holding that officer testimony was improper because it contained explicit opinion on intent). 33 182 Wn.2d 191, 201-02, 340 P.3d 213 (2014) (reasoning that the trooper's opinion testimony was improper because it was not supported by his own factual testimony).
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Washington courts have upheld the admission of opinion testimony when
the witnesses had strong factual bases supporting their opinions and those
opinions did not include an explicit statement on an ultimate issue of fact.34
In City of Seattle v. Heatlev,35 this court held admissible an officer's
testimony that embraced an ultimate issue but did not contain an explicit
statement about the defendant's guilt. In that case, the officer testified that
Heatley was "obviously intoxicated and affected by the alcoholic drink [such]
that... he could not drive a motor vehicle in a safe manner."36 The court
reasoned that the officer's opinion was "based solely on his experience and his
observation of Heatley's physical appearance and performance on the field
sobriety tests."37 The officer testified that Heatley performed a series of field
sobriety tests, his eyes were bloodshot and watery, his face was flushed, his
balance was unsteady, and he had a strong odor of alcohol on his breath.38 The
officer said that he based his conclusion on Heatley's physical appearance, his
own observations, and the field sobriety tests that Heatley performed.39
The court in Heatlev noted that an opinion that encompasses ultimate
factual issues supporting the conclusion that the defendant is guilty does not
34 Kirkman, 159 Wn.2d at 938; City of Seattle v. Heatlev. 70 Wn. App. 573, 579, 854 P.2d 658 (1993); State v. Lewellyn, 78 Wn. App. 788, 795, 895 P.2d 418(1995). 35 70 Wn. App. 573, 579-80, 854 P.2d 658 (1993). 36 Heatlev, 70 Wn. App. at 576. 37 Heatlev. 70 Wn. App. at 579. 38 Heatlev. 70 Wn. App. at 576. 39 Heatlev. 70 Wn. App. at 576.
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necessarily make that testimony an improper opinion on guilt.40 The court also
stated that it "'is the very fact that such opinions imply that the defendant is guilty
which makes the evidence relevant and material.'"41
Similar to the officer in Heatlev. Trooper Rosser testified about his own
perceptions that he based on his observations of Castillo's behavior. Trooper
Rosser testified that he was approximately 10 to 15 feet from Castillo's car,
Castillo maintained eye contact with him, and Castillo accelerated. Trooper
Rosser testified that he thought Castillo was intentionally driving at him because
they made eye contact more than once and they were looking at each other
when Castillo accelerated the car at him. Trooper Rosser said he moved to
avoid being hit by Castillo's car, and the car accelerated right past him. Trooper
Rosser also testified that had he not moved out of the way, he was sure that the
car would have hit him.
The State's question to Trooper Rosser copied language from one of the
elements of a charged crime.42 However, Trooper Rosser based his testimony
on his perception. It helped to provide the jury with a clear understanding of his
testimony or the determination of a fact in issue and was not based on scientific,
40 Heatlev. 70 Wn. App. at 579. 41 Heatlev. 70 Wn. App. at 579 (quoting State v. Wilber. 55 Wn. App. 294, 298n.1,777P.2d36(1989)). 42 Jury instruction 9 states, "An assault is . . . an act done with the intent to create in another apprehension and fear of bodily injury, and which in fact creates in another a reasonable apprehension and imminent fear of bodily injury even though the actor did not actually intend to inflict bodily injury."
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technical, or other specialized knowledge.43 The trial court also instructed the
jury that it was the sole trier of fact and the sole decider of witness credibility.
Trooper Rosser's testimony did not include an explicit opinion on Castillo's
credibility or guilt. The record also indicates that Castillo did not object to this
testimony at trial. Castillo has not made a plausible showing that the asserted
error had practical and identifiable consequences at trial. Thus, no manifest
constitutional error occurred.
Necessity Defense
Castillo next contends that no rational trier of fact could have found that he
failed to prove his necessity defense by a preponderance of the evidence.
"The necessity defense is available to a defendant 'when the physical
forces of nature or the pressure of circumstances cause the accused to take
unlawful action to avoid a harm which social policy deems greater than the harm
resulting from a violation of the law.'"44 A defendant may not assert the defense
if he brought about the compelling circumstances or had an available legal
alternative.45 The defendant must prove by a preponderance of the evidence
that he reasonably believed the commission of the crime was necessary to avoid
or minimize a harm, the harm sought to be avoided was greater than the harm
resulting from a violation of the law, and no legal alternative existed.46
43ER701. 44 State v. Gallegos, 73 Wn. App. 644, 650, 871 P.2d 621 (1994) (quoting State v. Diana, 24 Wn. App. 908, 913, 604 P.2d 1312 (1979)). 45 Gallegos, 73 Wn. App. at 650 (quoting Diana. 24 Wn. App. at 913-14). 46 Gallegos, 73 Wn. App. at 651 (citing Diana. 24 Wn. App. at 916).
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Castillo contends that no rational jury could reject his necessity defense
because the record showed that he reasonably believed that eluding police was
necessary to avoid or minimize the harm of "being shot by a police officer."
However, this argument requires that the jury believe Castillo. Viewing the
record in the light most favorable to the State, Castillo's argument fails.
In State v. Gallegos,47 this court held that the pressure under which the
defendant acted did not result from a physical force of nature and, therefore, as a
matter of law, a necessity defense was not available to him. The court reasoned
that, even if the necessity defense was available to him, Gallegos failed to
present sufficient evidence to persuade a jury because he relied on his
unreasonable subjective beliefs.48
When Gallegos returned home from a bar and learned about people
harassing his friend at that bar, Gallegos, who had been drinking alcohol, got in
his car and drove toward the bar.49 Police observed Gallegos run six red lights
and cause two cars to brake abruptly to avoid a collision.50 The court noted that
simply waiting a few minutes and informing the pursuing officer about the
situation would have allowed the officer to take the necessary legal action to find
Gallegos's friend at the bar and protect her.51
47 73 Wn. App. 644, 651, 871 P.2d 621 (1994). 48 Gallegos, 73 Wn. App. at 651. 49 Gallegos. 73 Wn. App. at 646. 50 Gallegos. 73 Wn. App. at 646. 51 Gallegos. 73 Wn. App. at 651.
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Although Castillo testified that he thought that he was being shot at by
police, no evidence in the record corroborated this belief. Castillo testified that
he did not see Trooper Rosser reach for or point a weapon at him before the
pursuit. There is no evidence in the record that Castillo's car sustained any
damage from a bullet.
The trial court instructed the jury on the necessity defense, and the trier of
fact found Castillo's testimony unpersuasive. As the State correctly points out,
Castillo's defense relied on his own testimony, and the fact that the jury found his
testimony unpersuasive is not reversible error. "Credibility determinations are for
the trier of fact and cannot be reviewed on appeal."52
Viewing the evidence in the light most favorable to the State, we conclude
that a rational trier of fact could have rejected Castillo's necessity defense.
Conclusion
Because the record includes sufficient evidence to support each element
of assault in the second degree, the answer to the challenged leading question
was harmless, no witness gave an impermissible opinion about Castillo's guilt,
52 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
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and a reasonable fact finder could find that Castillo failed to prove his necessity
defense by a preponderance of the evidence, we affirm.
WE CONCUR:
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