State Of Washington, Respondent V. Gene Murray Fulton, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON,

STATE OF WASHINGTON,
DIVISION ONE g

Respondent,
No. 68136-2

V.
UNPUBLISHED OPINION

GENE M. FULTON,

Appellant. FILED: June 17, 2013

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Dwyer, J. — Gene Fulton appeals from his conviction of burglary in the
second degree arising from an incident in which he entered an unoccupied
residence that was under construction and removed a washer and dryer set. He
contends that the trial court denied him a fair trial by admitting testimony that
constituted an improper opinion on guilt. Because no such impermissible opinion
was Offered, we affirm.

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On July 13, 2010, at approximately 1:00 a.m., Barbara Mae Solari was
smoking a cigarette on the front porch of her home when she noticed a white
truck slowly drive into the housing development in which she resided. Solari

observed that two individuals were inside the truck and that its headlights were

turned off.

No. 68136-2/2
Because Solari was unusually familiar with cars and trucks, she was able
to determine that the vehicle entering the housing development was a small,
white utility truck from the early 1990s, had a single cab, and had a four-cylinder
engine. 	Solari also heard a distinct, constant rattle emanating from the truck,
which she believed originated from the middle or front of the truck as it was
moving. 	She believed that the rattling sound indicated a defect in the truck's
catalytic converter.
Solari saw the truck back into the driveway of a nearby house in the
housing development. As with many other residences in the development, this
home was still under construction and unoccupied. 	After the truck parked in the
driveway, Solari watched as two men exited the truck and entered the home.
She had a clear view of the scene, as she observed the men's actions.
Suspicious of such activity, Solari called 911. 	She informed the operator
of the activities she had seen and provided a description of the truck. 	Solari
stayed on the telephone while she watched the men, and continued to relay to
the operator what she was observing. Although Solari was unable to discern the
men's facial features, she noted that they were Caucasian, of average build, and
between 57" and 6'1". 	She also noticed that one man was dressed in a white
shirt and jeans, and that the other man was wearing darker clothing.
The two men soon emerged from the home carrying a large white box.
Solari perceived the box to be an appliance, such as a washer or dryer. The
men loaded the box into the back of the truck, returned inside the home, and
appeared outside with another large box. After they stowed the second box in
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No. 68136-2/3
the back of the truck, the two men entered the vehicle and drove away from the
home with the truck's headlights turned off. Solari reported to the 911 operator
the direction in which the truck was moving once it left the housing development.
She knew the truck's direction of travel because she could hear the rattling of the
catalytic converter as the truck drove away in the morning quiet.
Officers from the Auburn Police Department arrived at the housing
development shortly thereafter and spoke with Solari about her observations.
Sergeant Mark Caillier investigated the burglarized home and discovered that the
doors were unlocked and that all of the appliances were in place except for the
washer and dryer.
Police officers also began conducting checks in the area for a truck
matching the description provided by Solari. Shortly after Officer Tillman Atkins
received the dispatch concerning the vehicle, he saw a white Ford Ranger pickup
truck driving southbound on the freeway. The truck was an older model with
what he believed to be a very loud exhaust. 	Officer Atkins stopped the vehicle
and subsequently discovered a new washer and dryer set located in the back of
the truck. 	Fulton was the truck's driver. 	Cory Stobie was its passenger.
When Sergeant Caillier learned that Officer Atkins had stopped a pickup
truck that corresponded with Solari's description of the suspect vehicle, he
instructed Officer Jamie Douglas to respond to the location at which Fulton and
Stobie were detained. 	Officer Douglas arrived shortly thereafter to direct the
investigation.
The following day, the construction manager of the housing development
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No. 68136-2/4
compared the serial numbers of the washer and dryer that were found in the
back of Fulton's truck with the set that was installed in the burglarized residence.
The numbers were identical.
On July 16, 2010, Fulton and Stobie were charged with one count of
second degree residential burglary. 	The information was subsequently amended
to one count of burglary in the second degree to reflect the fact that the building
they had entered was not an occupied dwelling. 	Stobie and Fulton were
prosecuted in a joint trial that commenced on October 31, 2011. 	During direct
examination, Officer Douglas testified that upon arriving at the location at which
Fulton and Stobie were detained, he noticed that Fulton's truck matched the
description of the suspected vehicle that police were searching for that night.
The following exchange then took place:
Q. What were you thinking when you came upon the scene
and saw what you described to us?
A. Based on the totality of everything I'd been given and
what I saw, this was the suspect vehicle and [inaudible].
[Defense Counsel]: 	Objection, your Honor. 	I think that the
answer calls for something that the jury needs to decide and not
this officer. Apparently the question is along the lines of did we get
the right people. 	I think that's a question that other people have to
answer, not this officer.
[Prosecutor]: 	Obviously ... the jury will ultimately decide . ..
whether or not the law enforcement obtained the correct
individuals, but nevertheless, his thinking during the course of this
investigation is extremely relevant to the facts of this case.
The court: 	I'm going to allow. Overruled.
Q. 	Pardon me, officer, so you had indicated based on the
totality of what you knew about the situation?
A. That the, this was the suspect vehicle and that these two
are the suspects.
Q. 	Did you have any reason to doubt that?
A. 	No.
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No. 68136-2/5
Fulton subsequently testified at trial. 	He testified that on the evening of
July 12, 2010, after gambling for several hours, he left the casino to meet with his
friend, Stobie, at a sports bar. When he pulled into the sports bar's parking lot,
he recognized two men who were parking their white or tan truck near his truck.
Fulton testified that he did not know their names, but had previously seen them at
the casino.
According to his testimony, the two men offered to sell Fulton a washer
and dryer set that was located in the back of their truck. 	Fulton stated that he
paid $240 in cash for the appliances after negotiating the price with the two men.
He did not ask the men where they acquired the machines. 	Fulton claimed that
he bought the appliances for his friends who were in need of a washer and dryer.
However, he did not know these friends' surnames. After the men moved the
washer and dryer into the bed of his truck, Fulton testified, he found Stobie inside
the bar, and they left. While en route to Stobie's house, Fulton was pulled over
and arrested.
The jury found Fulton guilty as charged. 	He was thereafter sentenced to
12 months plus one day of incarceration.
II
Fulton contends that Officer Douglas's challenged testimony constituted
an impermissible opinion on guilt that denied him a fair trial. 	We disagree. 	No
such impermissible opinion on guilt was offered.
Evidence Rule (ER) 701 permits testimony "in the form of opinions or
inferences" that are "rationally based on the perception of the witness" and
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No. 68136-2/6
"helpful to a clear understanding of the witness' testimony or the determination of
a fact in issue." 	Moreover, "[t]estimony 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. 	However, generally, no witness may
offer an opinion regarding the defendant's guilt or veracity. 	State v. Kirkman, 159
Wn.2d 918, 927, 155 P.3d 125 (2007); State v. Rafav, 168 Wn. App. 734, 805,
285 P.3d 83 (2012), review denied. 176 Wn.2d 1023 (2013). 	Such testimony is
unfairly prejudicial to the defendant because it invades the exclusive province of
the jury. Kirkman, 159 Wn.2d at 927; Rafav, 168 Wn. App. at 805. 	A police
officer's opinion testimony regarding the veracity of another witness raises
additional concerns because "an officer's testimony often carries a special aura
of reliability." Kirkman, 159 Wn.2d at 928.
Nonetheless, opinion testimony that is based on inferences from the
evidence, does not comment directly on the defendant's guilt or veracity, and is
otherwise helpful to the jury, does not constitute an opinion on guilt. 	Rafav, 168
Wn. App. at 806. "The fact that an opinion supports a finding of guilt. . . does not
make the opinion improper." State v. Collins. 152 Wn. App. 429, 436, 216 P.3d
463 (2009).
When evaluating alleged opinion testimony, courts may consider the type
of witness, the specific nature of the testimony, the nature of the charges, the
type of defense, and the other evidence before the trier of fact. State v.
Montgomery. 163 Wn.2d 577, 591, 183 P.3d 267 (2008). 	Trial courts have wide
discretion to determine the admissibility of evidence. 	State v. Demerv, 144
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No. 68136-2/7
Wn.2d 753, 758, 30 P.3d 1278 (2001). 	Therefore, we review a trial court's ruling
on the admissibility of opinion evidence for an abuse of discretion. 	Demery, 144
Wn.2d at 758.
Here, Officer Douglas testified at trial that "this was the suspect vehicle
and that these two are the suspects." 	Fulton asserts that this testimony
constituted an improper opinion of guilt. 	In so contending, Fulton interprets the
officer's testimony as an opinion that the police "had caught the perpetrator."
However, the challenged testimony was not a statement of the officer's
belief as to Fulton's guilt. Officer Douglas neither used the word "perpetrator" nor
"guilt" when referring to Fulton in the challenged testimony. 	Nevertheless, Fulton
mistakenly likens the term "suspect" to "perpetrator" in order to support his
contention that the officer offered an opinion on Fulton's guilt. But these two
words are not commonly understood to be synonymous. While the plain
meaning of the term "perpetrator" is often understood as a person who has
carried out a criminal or illegal act, the term "suspect" ordinarily denotes an
individual who is believed to have carried out such an act, but whose guilt is not
yet confirmed. 	See Webster's Third New International Dictionary, 2303,
1684(2002).
Here, the challenged testimony merely reflected that, upon his arrival at
the location in which the defendants were detained, Officer Douglas was satisfied
that he had encountered the suspects described by a witness to a burglary. This
view was based on his belief at the time that his observations of Stobie, Fulton,
and Fulton's truck corresponded with the description of the suspects and suspect
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No. 68136-2/8
vehicle that had been previously provided to him by the dispatcher. 	Moreover, at
that point in the trial, it can be fairly said that the jury was already aware that
Fulton was suspected of committing the burglary, and, as the prosecutor
indicated, that the jury would ultimately decide whether or not Fulton was guilty
as charged.
Nor did the officer's statement concern an opinion on the veracity of
Fulton's testimony regarding his activities on the evening of July 12, 2010 and
the early morning of July 13, 2010. 	Fulton testified after Officer Douglas at trial.
Indeed, the officer's statement was "based on the totality" of the circumstances at
the time of the investigation, which included his receipt of Solari's description of
the suspects and the suspect vehicle, as well as his subsequent observations of
Stobie, Fulton, and Fulton's truck. 	Officer Douglas's testimony that, out on the
street, he believed that he was viewing the suspects, in no way commented on
the alternative explanation offered by Fulton as to how the washer and dryer
came to be in his truck's bed. 	At the time referenced in the officer's testimony,
Fulton's explanation of how he came to possess the washer and dryer had not
yet been offered to either the officers at the scene or the jury in the courtroom.
Officer Douglas's testimony was neither an opinion on guilt nor an opinion on
Fulton's veracity as a witness.
Testimony that Fulton was a "suspect" and that his truck "was the suspect
vehicle" cannot reasonably be construed as direct comments on the guilt or
veracity of Fulton. 	There was no trial court error in the admission of the
challenged testimony.
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No. 68136-2/9

Affirmed.

We concur:

Lack CF
a