Opinion
No. 52119-5-I.
Filed: March 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-07981-1. Judgment or order under review. Date filed: 03/21/2003. Judge signing: Hon. Helen L Halpert.
Counsel for Appellant(s), Susan F Wilk, Washington Appellate Project, 1305 4th Ave Ste 802, Seattle, WA 98101.
Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Dennis John McCurdy, Pros Attorneys Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
Richard Earl appeals his conviction of voyeurism, contending the trial court admitted improper opinion testimony and the evidence was insufficient. The court did not abuse its discretion admitting an eyewitness's impression that Earl was touching himself as he peered into a woman's bedroom window because the opinion was rationally based on personal observations and did not invade the province of the jury. Evidence describing Earl as a `peeper' or as `peeping' did not constitute an opinion on guilt, and no objection was preserved to the phrase `peeping Tom' that defense counsel elicited from a State's witness. The evidence was sufficient to convict. We affirm.
FACTS
Amy Moyer and Rob Salas live in a house that shares a backyard with a converted garage apartment. The layout of the buildings is such that Moyer and Salas can see the area immediately outside the apartment window, but cannot see into the window. One night at about 9:00, shortly after Heather Keith had moved into the garage apartment, Moyer was surprised to find a large man dressed in dark clothing in the corner of the backyard. Moyer went into her house and locked the doors, but did not call police. Later that night, when Salas came home, she told him what she saw. Around 1:00 in the morning, Salas awoke to the sound of bushes rustling in the back yard. He awoke Moyer and they watched as the same man, later identified as the defendant Richard Earl, was peering into Keith's garage apartment window.
At that time, Keith was going to bed. Although she slept naked, she did not yet have curtains up on the window. She had not been concerned because the only way to see in was to get right next to the window and the backyard was enclosed by a high fence. She had removed her hearing aids and did not hear anything.
Moyer called 911 and described what she saw to the dispatcher while they waited for police. When police arrived, Earl ran but was immediately arrested.
Before trial, the court denied Earl's motion to suppress any testimony by Salas or Moyer that they believed Earl was masturbating as he looked into Keith's window. The court also denied Earl's motion to redact the 911 tape by suppressing statements on the tape that Earl was a `peeper' or was `peeping.'
At trial, Salas and Moyer described Earl as appearing visibly excited, with his mouth gaping open, his head moving around and his body rocking from side to side and front to back, with his hands in the area of his front pockets of either his sweatshirt or his pants. Over Earl's objection, the court allowed Moyer to testify that it was her impression that Earl was probably touching himself as he peered in the window. Moyer and Salas watched Earl for approximately fifteen minutes until police arrived. Police testified Earl first said he should have run and later told them he was only in the area moving his parked cars to avoid tickets. Earl was convicted and appeals.
DECISION
Earl first argues that the trial court abused its discretion by allowing Moyer to testify to her impression of Earl's actions. Generally, a witness may not offer opinion testimony regarding the guilt or veracity of a defendant. Such testimony is improper because it violates the defendant's constitutional right to have an impartial jury independently evaluate the facts. But `testimony that is not a direct comment on the defendant's guilt, is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony.' Accordingly, even testimony that `embraces an ultimate issue to be decided by the trier of fact' is admissible.
City of Seattle v. Heatley, 70 Wn. App. 573, 577, 854 P.2d 658 (1993); State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987) (`No witness, lay or expert, may testify to his opinion as to the guilt of a defendant, whether by direct statement or inference.').
State v. Farr-Lenzini, 93 Wn. App. 453, 459-60, 970 P.2d 313 (1999); State v. Sanders, 66 Wn. App. 380, 387, 832 P.2d 1326 (1992).
Heatley, 70 Wn. App. at 578.
ER 704.
This court reviews the trial court's decision to admit or refuse opinion testimony for an abuse of discretion. We have `expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt.' `Whether testimony constitutes an impermissible opinion on guilt or a permissible opinion embracing an `ultimate issue' will generally depend on the specific circumstances of each case, including the type of witness involved, 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. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992); Heatley, 70 Wn. App. at 585.
Heatley, 70 Wn. App. at 579, citing State v. Wilber, 55 Wn. App. 294, 298, 777 P.2d 36 (1989) (analyzing officers' testimony that "inferentially" constituted opinion on guilt as expert testimony under ER 702).
Heatley, 70 Wn. App. at 579.
Contrary to Earl's claim that Moyer lacked personal knowledge, her personal observations provided the foundation for her opinion. She saw Earl inside the fenced backyard near Keith's apartment at approximately 9:00 and again later at approximately 1:00 in the morning. She watched as Earl crept up to Keith's bedroom window and was peering into it for several minutes, during which time he had an open mouth and slack jaw, his hands were in or near his pockets in front of him, `kind of down lower,' and he was rocking back and forth and side to side. His focus the entire time was on the window to Keith's apartment, and he only left when the police came around the side of the house.
Report of Proceedings at 245.
Based on this record, we do not find an abuse of the court's broad discretion. Whether Earl was touching himself was not an element of the crime, so Moyer's testimony provided no direct opinion on his guilt. Moyer was not a police officer or other governmental official whose opinion would have been given undue weight by the jury and the factual foundation for her impression was clear so the jury was in no danger of being misled into believing she had seen something that she had not. Her impression that Earl was touching himself was rationally based upon her observations and was helpful to the jury to determine how Moyer's observations all fit together. While her opinion ultimately might have helped prove the charge, that fact only makes the opinion relevant and material, it does not make it inadmissible.
Heatley, 70 Wn. App. At 579 (the trial court `must be accorded broad discretion to determine the admissibility of ultimate issue testimony[.]').
See State v. Ferguson, 100 Wn.2d 131, 667 P.2d 68 (1983) (lay opinion that stains on a towel `looked like semen' properly admitted by trial court.); State v. Halstien, 122 Wn.2d 109, 128, 857 P.2d 270 (1993).
Wilber, 55 Wn. App. at 298 n. 1.
Earl similarly challenges references in the evidence to the phrases, `peeper,' `peeping' and `peeping Tom' on the grounds that they also constitute improper opinion testimony. But we find no abuse of discretion by the trial court in this regard either. Preliminarily, we note that Earl's sole trial objection in this regard came during the motions in limine, when he objected only to Moyer's use of `peeper' or `peeping' on the 911 tape. Although the phrase `peeping Tom' was used during trial, that came when defense counsel cross-examined Tonya Knight, a neighbor who happened to be sitting on her porch when police apprehended Earl. Not only did Earl's counsel not object when Knight used the phrase in describing what police told her, counsel repeated the phrase back to Knight in asking her next question. Under these circumstances, Knight's use of the phrase `peeping Tom' does not constitute a `manifest error affecting a constitutional right' that Earl can raise for the first time on appeal.
RAP 2.5, Heatley, 70 Wn. App. at 577.
As for the use of `peeper' or `peeping' on the 911 tape, we find no abuse of discretion in the trial judge's conclusion that these words did not constitute an impermissible opinion on guilt. The context of the statements was such that we are confident the jury understood them as descriptions of Earl's actions, not opinions of his purpose or motive. Finally, Earl contends that the evidence was insufficient to establish guilt because it failed to prove that he looked into Keith's window with `the purpose of arousing or gratifying [his] sexual desire'. But in evaluating the sufficiency of the evidence we treat circumstantial evidence as no less probative than direct evidence and draw all reasonable inferences in favor of the State. In addition to Moyer's and Salas's descriptions of Earl's actions and appearance, the police testified Earl was very sweaty, with a shiny face and damp shirt. An officer also testified Earl gave contradictory statements in attempting to explain what he had been doing.
State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
The cases Earl cites involving different crimes and statutes that do not include the purpose of sexual arousal are not analogous. That Earl had the purpose of his own sexual arousal when he peered into Keith's window is clearly a reasonable inference that can be drawn from the totality of the evidence.
State v. Myles, 127 Wn.2d 807, 815, 903 P.2d 979 (1995) (applying 9.94A.303(39) definition of `sexual motivation.'); Halstien, 122 Wn.2d at 120 (same); State v. Parker, 81 Wn. App. 731, 737-38, 915 P.2d 1174 (1996) (same); State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991) (applying RCW 9A.44.010(2) definition of `sexual contact' in child molestation case); State v. T.E.H., 91 Wn. App. 908, 960 P.2d 441 (1998) (same).
Affirmed.
GROSSE and KENNEDY, JJ., concur.