Opinion
No. 36379-8-II.
April 21, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-1-01690-2, Theodore F Spearman, J., entered June 1, 2007.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Bridgewater, J.
UNPUBLISHED OPINION
Clinton Asher Thornton appeals his conviction for unlawful possession of methamphetamine, arguing that (1) the trial court denied him his right to a public trial when it closed the courtroom without considering the Bone-Club factors, (2) the trial court denied him his right to a fair and impartial jury when it refused to dismiss the entire panel after two prospective jurors made comments regarding his physical appearance, (3) the trial court erred when it excluded "other suspect" evidence incriminating the driver of the car in which the methamphetamine was found, (4) the trial court erred when it excluded evidence regarding his reputation for sobriety, (5) the trial court erred when it excluded evidence regarding his physical appearance as a child, (6) one of the State's witnesses improperly commented on his guilt in violation of his right to a jury trial, (7) sufficient evidence does not support his conviction, and (8) cumulative error denied him a fair trial. Because none of Thornton's claims have merit, we affirm.
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
FACTS
Factual Background
On November 18, 2006, Joseph Dill drove Thornton and Christopher King home in Dill's car. Dill was driving, King was in the front passenger seat, and Thornton was alone in the back seat. At 11:30 pm, Officer David Walker and Officer Beth Deatherage pulled Dill over for a license plate infraction and ultimately arrested him for driving with a suspended license.
Initially, Officer Deatherage told Thornton and King that they were free to leave and they got out of the vehicle. Deatherage spotted open alcohol containers in the car and determined that she needed to identify the passengers and establish that they were at least 21 years old. After verifying King's identification, Deatherage arrested King on an outstanding warrant. When Deatherage handcuffed King, Thornton began complaining that the arrest was a "scam" and that the officers did not have "probable cause" for the stop. 2 Report of Proceedings (RP) at 288, 312.
While this was going on, Officer Walker was speaking with Thornton. Walker noticed that Thornton was holding a juice bottle. Believing the bottle contained alcohol, Walker confiscated it and poured the contents onto the asphalt. Some of the juice landed on Thornton's shoe and splashed on his pants leg. In response, Thornton shoved Walker with both hands, knocking him backwards. After a brief scuffle, Walker handcuffed Thornton and put him in the patrol car.
Officer Deatherage searched Dill's car incident to the arrests. She found two glass smoking pipes and a small plastic bag containing methamphetamine under the front passenger seat. In the back seat, directly behind where Thornton had been sitting, Deatherage found a sunglasses case containing methamphetamine shoved into the crevice between the seat back and the seat bottom.
On December 25, 2006, law enforcement again arrested Dill for driving with a suspended license. This time, Thornton was in the front seat. When law enforcement searched Dill incident to his arrest, the arresting officer discovered methamphetamine in Dill's pocket and a small glass bong on the floorboards in the rear of the vehicle. Procedural History
The State charged Thornton with third degree assault and unlawful possession of methamphetamine based on the events on November 18, 2006. A jury trial commenced on April 2, 2007.
Thornton's third degree assault conviction is not at issue on appeal.
A. Voir Dire
During the morning recess in the midst of voir dire, Juror No. 36 returned to the courtroom and advised the bailiff that she wanted to discuss a "private matter" concerning her son's imprisonment for a drug-related murder outside the presence of the remaining panel members. 2 RP at 105. Specifically, she revealed that, although she believed that her son made a mistake and deserved his punishment, she was prejudiced because her experience has caused her to "lean more towards . . . see[ing defendants] help themselves and not go to prison, because that's no help at all." 2 RP at 107. Moreover, she was concerned that she may be distracted because her son's incarceration was related to his drug use. This exchange took place in the open courtroom on the record. By agreement of the parties, the trial court excused Juror No. 36 for cause. Shortly thereafter, the bailiff brought the remaining prospective jurors back into the courtroom.
Also during jury selection, Juror No. 3 stated that she was not sure that she could be fair and impartial in a case involving an allegation of methamphetamine possession because she had been the victim of a theft perpetrated by a methamphetamine user and, based strictly on appearance, Thornton "looks like he does [methamphetamine] all the time." 2 RP at 215. Juror No. 3 went on to state that she has "seen . . . what [methamphetamine] does to families." 2 RP at 216. In discussing the presumption of innocence, Thornton's trial counsel then asked the panel if, when they walked in and saw Thornton, any of them thought, "I wonder what he did." 2 RP at 216. In response, Juror No. 24 stated, "I know exactly what he did. I know exactly what he does. I mean, I'm sorry, but you've got it written all over your face. And [all] I can say to you is [that] I will pray for you." 2 RP at 216.
This exchange prompted a discussion between the attorneys and the jurors about physical appearance and whether it is appropriate to make determinations of guilt based on appearance alone. Several jurors responded that they thought not because, based on their experiences, appearances could be misleading. In addition, several jurors stated that they were supposed to decide the case based on credible testimony, evidence, and facts, while another brought up the "beyond a [reasonable] doubt" standard. 2 RP at 218. At this point, the trial court called the afternoon recess.
After the recess, but before the panel reconvened, the parties agreed to dismiss Juror No. 3 and Juror No. 24 for cause. Thornton's trial counsel moved for a mistrial, asking the trial court to dismiss the entire jury panel because she was concerned that, despite her attempts to rehabilitate the venire, the remaining prospective jurors may make assumptions about Thornton based on Juror No. 3's and Juror No. 24's comments. Thornton's trial counsel stated he was particularly concerned because, at one point during voir dire, Thornton began crying and, when Juror No. 24 said that he would pray for Thornton, Thornton said, "Thank you." 2 RP at 225.
The trial court declined to dismiss the entire panel and admonished the remaining panel members, stating:
[T]here's a matter that I feel the need now to discuss with you because you heard two jurors give an opinion from their personal experience in life of what they think from their mere observation of [Thornton] about drug use. First of all, that is the expression of bias. Such opinions based on mere appearance alone would never be sufficient in a court of law for someone to be found guilty much less even be charged with such offense. As one of the jurors mentioned earlier, appearances are very deceptive and, in fact, one of the best Craftsman was one who, if you looked at him, wouldn't think for a moment he could be. The same is true for appearances. The annals of medicine are full of mimic indications of numerous different conditions that appear to be something entirely different. Nutritional issues could very well be involved in appearances. . . .
So to come to an opinion, although you have now heard this from two individuals who indicated they had an experience with people and now they have an opinion, the real issue for me right now is to learn if any of you feel that, now that you have heard this, you would not be able to put it out of your mind? Because it is baseless under the law and the rules of evidence. And what we require, both by oath, by submission to direct and cross-examination, to test foundations of the experience, the background, the training, these are the types of things that we require before people are allowed to express opinions with respect to reality.
2 RP at 230-31. The trial court went on to question the jurors about whether any of them felt that the comments relating to Thornton's physical appearance would affect their ability to be objective and fair. Specifically, the trial court stated:
So what I need to know now from each of you and honestly — there's no right [or] wrong answer here — I sincerely need to know, [are] there any of you who feel, now that you have heard this expression of opinion, feel that that would somehow creep into your decision-making process or how you view the world or view the evidence or how you look at [Thornton] now or how you might listen to the evidence in the case and let that creep in, instead of making the decision based on your own observations from the witness stand and the like in deciding what the facts are in this case?
So I would like to have hands of someone who honestly feels that this [has] really soured you to this case[.] Now, I don't see any hands. But my memory was when some folks — there was a reaction. A gentleman actually started talking to [Thornton] directly; there might have been some heads nodding. I really need to understand, right now, is there anyone in here who cannot assure me at this time that this is not going to worm its way, so to speak, into your decision-making process? Does anybody have any questions you would like to ask about the question I asked you, if I'm not clear. I hope I'm clear with what I'm trying to get at. But it's a very serious matter. And things like this come up from time to time. And I need to be assured, if you sit on this jury, [Thornton] is going to get a full, fair, careful review of the facts and not based upon bias or prejudice against him, based upon appearances alone or the comments by other people who think they have a view of reality that is worth mentioning.
2 RP at 231-33. None of the jurors indicated an inability to be fair.
After a brief recess, voir dire continued. Thornton's trial counsel asked several of the jurors about their perceptions of Thornton's appearance and about the issue of appearance in general. Again, none of the jurors expressed any concern about his or her ability to be fair.
B. Trial
At trial, Thornton denied having dominion and control over the methamphetamine and argued that to the extent that he had possession, it was unwitting. In support of his unwitting possession defense, Thornton sought to introduce evidence regarding Dill's December 25, 2006 arrest, arguing that the drug paraphernalia found in the back seat at that time pointed to Dill as having secreted the methamphetamine in the sunglasses case that police seized on November 18, 2006, which formed the basis of Thornton's possession charge. The trial court excluded the December 25 evidence, specifically rejecting as a factual matter that the drugs in the November arrest were in the "same place" as the drug paraphernalia in Dill's December arrest.
In addition, Thornton sought to have his mother testify that he had a reputation for not using methamphetamine and about his general physical appearance when he was a child. His trial counsel stated, "Thornton's mother would like to testify regarding, traditionally, Mr. Thornton's appearance since he was a child" as well as "her understanding of the reputation that Mr. Thornton [does] not use methamphetamine." 3 RP at 249-50. Thornton's trial counsel cited City of Kennewick v. Day, 142 Wn.2d 1, 11 P.3d 304 (2000), to support his argument that reputation evidence is admissible when a defendant asserts an unwitting possession defense. But the trial court excluded the evidence, stating that it did not apply because it believed that "intent to use" was an essential element in Kennewick and, because the State charged Thornton with simple possession, intent to use was not an issue in Thornton's case. 3 RP at 252.
Also at trial, during cross-examination, Officer Deatherage testified about her investigation following her search of Dill's vehicle. She testified as follows:
Q. Were any fingerprints taken from the pipe?
A. No.
Q. . . . And you have the authority to request that fingerprints be taken; is that correct?
A. I can submit anything to have a fingerprint attempted, yeah.
Q. And the baggies that were found, were there any fingerprints taken of those?
A. Not by me, no.
Q. Okay. Did you make any requests that fingerprints be taken of those items?
A. No, I did not.
3 RP at 327.
On redirect, the State asked Officer Deatherage why she had not taken any fingerprints and she responded:
[N]umber one, . . . I didn't have my patrol car with me and didn't have the capability of taking any sort of fingerprints[,] only for the glass pipes. The plastic bags, with myself and my experience, I don't have the capability of taking fingerprints off a plastic bag. And, number three, the location where the narcotics were found, in my opinion, it was pretty obvious who owned them.
3 RP at 335. Thornton's trial counsel did not object to Officer Deatherage's answer and declined to cross-examine her further.
The jury found Thornton guilty as charged. He timely appeals.
ANALYSIS
Closed Courtroom
Thornton argues that the trial court violated his right to a public trial because it closed a portion of the jury voir dire to the public without considering the factors enumerated in Bone-Club, 128 Wn.2d at 258-59. Because the record does not demonstrate that the trial court excluded the public from any part of Thornton's trial, we disagree.
Here, Thornton has not demonstrated that the trial court closed the courtroom or that it excluded anyone from any part of his trial. From our review of the record, the trial court simply never ordered that the proceeding be closed to any spectators or family members; instead, the trial court specifically stated that Thornton's family had "the absolute right" to attend all portions of his trial but that they may have to sit in the back of the courtroom during voir dire. 1 RP at 9. Moreover, Juror No. 36 requested that she be questioned outside the presence of the other jurors and she approached the trial court in the middle of a scheduled break during voir dire. The trial court spoke to Juror No. 36 in the open courtroom, on the record, with Thornton and his counsel present. The record is devoid of any indication that the trial court closed the courtroom to the public during voir dire or any other portion of Thornton's trial. Fair and Impartial Jury
In addition to the trial court asking her questions, both the State and Thornton's counsel questioned Juror No. 36.
Thornton also argues that the trial court abused its discretion when it refused to grant a mistrial after Juror No. 3 and Juror No. 24 commented on his appearance during voir dire. Because the trial court dismissed those two prospective jurors and specifically admonished the remaining venire to disregard the dismissed prospective jurors' comments, the trial court did not abuse its discretion when it refused to dismiss the entire panel.
Under the Sixth Amendment to the United States Constitution as well as article I, section 22 of the Washington State Constitution, "'a defendant is guaranteed the right to a fair and impartial jury.'" State v. Roberts, 142 Wn.2d 471, 517, 14 P.3d 713 (2000) (quoting State v. Brett, 126 Wn.2d 136, 157, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996)). We review a trial court's denial of a motion to strike a prospective jury panel for abuse of discretion. See Roberts, 142 Wn.2d at 518-19. "'A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds.'" State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)), review denied, 133 Wn.2d 1019 (1997).
A trial court should sustain a challenge to the entire panel only where there is "a material departure from the procedures prescribed by law for their selection." CrR 6.4(a); see ch. 2.36 RCW. The limit and extent of voir dire examination and, thus, the determination of whether a defendant has been granted every reasonable protection, is within the discretion of the trial court. State v. Herman, 93 Wn.2d 590, 593, 611 P.2d 748 (1980). And the trial court is required to excuse unfit persons from the jury venire. RCW 2.36.110. Having considerable latitude in conducting voir dire, the defendant's right to a fair and impartial jury is the only limit on the trial court's exercise of its discretion. State v. Frederiksen, 40 Wn. App. 749, 700 P.2d 369, review denied, 104 Wn.2d 1013 (1985) (citing United States v. Jones, 722 F.2d 528, 529 (9th Cir. 1983)); see also State v. Wilson, 16 Wn. App. 348, 355, 555 P.2d 1375 (1976) (citing State v. Robinson, 75 Wn.2d 230, 450 P.2d 180 (1969)).
Although a motion to strike the jury venire is distinct from a motion for mistrial because during voir dire trial has not yet begun, courts often conflate the two concepts and treat a motion to strike an entire prospective jury panel as a motion for mistrial. See, e.g., State v. Berty, 136 Wn. App. 74, 77, 147 P.3d 1004 (2006); In re Det. of Griffith, 136 Wn. App. 480, 482, 150 P.3d 577 (2006). Like a motion to strike an entire jury panel, we review the denial of a motion for new trial under an abuse of discretion standard. State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983).
Here, following Juror No. 3's and Juror No. 24's comments during voir dire, Thornton's trial counsel moved for a mistrial. Although this is technically incorrect since a jury had not yet been empanelled, under the unique facts of this case, Juror No. 3's and Juror No. 24's comments are more analogous to juror misconduct, making analysis under the standards applicable to a trial court's ruling on a motion for mistrial appropriate. A jury's consideration of novel or extrinsic evidence constitutes misconduct and may be grounds for a new trial if the defendant is able to show that the misconduct likely affected the verdict. State v. Balisok, 123 Wn.2d 114, 118, 866 P.2d 301 (1994). But we presume that jurors follow the instructions the trial court gives them. See State v. Robinson, 146 Wn. App. 471, 483, 191 P.3d 906 (2008) (juries are presumed to follow admonishments and curative instructions) (citing State v. Willis, 67 Wn.2d 681, 686, 409 P.2d 669 (1966)).
Here, after Juror No. 3 and Juror No. 24 made comments about Thornton's physical appearance, the trial court excused those two jurors for cause. After dismissing the two prospective jurors, the trial court issued a strongly worded and lengthy admonition to the jury, instructing it to disregard the comments, to which Thornton's trial counsel did not object. In addition, the trial court repeatedly asked if the jurors felt that they could remove the comments from their decision-making process. The jurors indicated that they would be able to do so and to be fair. Furthermore, Thornton's trial counsel also asked the jurors a number of questions about the jurors' perceptions of Thornton's appearance and what effect it would have on their decision-making process. Again, none of the jurors indicated that he or she would be unable to be fair. Moreover, neither of the prospective jurors who made the challenged comments had any personal knowledge of Thornton; as a result, the remaining prospective jurors could not have taken Juror No. 3's and Juror No. 24's comments as anyone's opinion but their own. See State v. Eggers, 55 Wn.2d 711, 713, 349 P.2d 734 (1960). Because we presume that jurors are fair and reasonable and there is an absence of evidence that the jurors selected here were otherwise, the trial court did not abuse its discretion when it refused to dismiss the entire prospective jury panel. Other Suspect Evidence
Thornton contends that the trial court erred when it excluded his "other suspect" evidence. Specifically, Thornton argues that the trial court erred when it excluded evidence about Dill's December 25 arrest for possession of methamphetamine because, in that case, police found drug paraphernalia secreted in the same location as the methamphetamine in Thornton's case. But the record does not support Thornton's challenge.
A defendant in a criminal case has a constitutional right to present relevant, admissible evidence in his defense. ER104; State v. Austin, 59 Wn. App. 186, 194, 796 P.2d 746 (1990) (citing Taylor v. Illinois, 484 U.S. 400, 404-10, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)). The admission or refusal of evidence lies largely within the sound discretion of the trial court; we will not reverse the sound exercise of that discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306, review denied, 108 Wn.2d 1033 (1987) (citing State v. Laureano, 101 Wn.2d 745, 764, 682 P.2d 889)).
The defendant bears the burden of establishing the admissibility of the "other suspect" evidence. State v. Pacheco, 107 Wn.2d 59, 67, 726 P.2d 981 (1986). In order to be admissible, evidence connecting another suspect with the crime charged must be relevant and create a train of facts or circumstances that clearly points to someone other than the defendant as the guilty party. State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932). The evidence must establish a clear nexus between the other suspect and the crime; mere motive, ability, and opportunity to commit a crime alone are not sufficient. State v. Maupin, 128 Wn.2d 918, 927, 913 P.2d 808 (1996); State v. Rehak, 67 Wn. App. 157, 163, 834 P.2d 651 (1992), review denied, 120 Wn.2d 1022, cert. denied, 508 U.S. 953 (1993). Evidence of mere opportunity is speculative and irrelevant to exculpate the accused. Downs, 168 Wash. at 667-68. Only when the offered testimony would evidence a "step taken by the third party that indicates an intention to act" on the motive or opportunity does the trial court abuse its discretion in refusing to allow the evidence. Rehak, 67 Wn. App. at 163.
Here, Thornton failed to meet his burden of proving that Dill's relationship to the bong and the sunglasses case was more than mere opportunity. Thornton argues that the police discovered the bong in the same location as the methamphetamine, but Thornton's argument fails because it is factually inaccurate. In November, the police found a sunglasses case containing methamphetamine wedged between the cushions of the car seat directly behind where Thornton had been sitting, while in December, when Thornton was sitting in the front seat, the police located a glass bong on the rear floorboard area, as well as some methamphetamine in Dill's pocket. In December, the police did not find methamphetamine or marijuana secreted in the same location as the methamphetamine had been located the previous month.
Moreover, because Dill and Thornton were together in Dill's car on both occasions, it is difficult to discern how the fact that drugs and drug paraphernalia were seized on both occasions exonerates Thornton as the possessor. These factually distinct circumstances are far too attenuated to create "a train of facts or circumstances" that clearly point to Dill, and not Thornton, as the guilty party in the November case. See Downs, 168 Wash. at 667. Because Thornton's proposed evidence does not "clearly indicate" that Dill, and not he, committed the crime, and Thornton's "same location" argument misstates the evidence, the trial court properly excluded the evidence.
Reputation Evidence
Thornton next argues that the trial court erred when it refused to admit testimony from Thornton's mother that she believes he has a reputation for not using methamphetamine. Specifically, Thornton argues that the trial court misread Kennewick and argues that Kennewick holds that "character evidence is admissible to prove the defense of unwitting possession." Br. of Appellant at 13. Although we agree that the trial court misread the holding in Kennewick, it properly excluded the evidence. We may affirm a trial court's decision on any theory supported by the record and the law. State v. Michielli, 132 Wn.2d 229, 242, 937 P.2d 587 (1997) (citing Tropiano v. City of Tacoma, 105 Wn.2d 873, 718 P.2d 801 (1986)); State v. Guttierrez, 92 Wn. App. 343, 347, 961 P.2d 974 (1998) (citing State v. Carroll, 81 Wn.2d 95, 101, 500 P.2d 115 (1972)).
Evidence of one's reputation for sobriety from drugs is admissible to prove unwitting possession. Kennewick, 142 Wn.2d at 14-15. We review a trial court's decision to admit or to exclude evidence for abuse of discretion. Stubsjoen, 48 Wn. App. at 147. But reputation evidence is admissible only when it comes from a general and neutral community. State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678 (1993). The party offering the reputation evidence, here Thornton, bears the burden of laying a foundation that demonstrates that the witness is familiar with the person's reputation and that the witness's testimony is based on the community's perception of the defendant with regards to the relevant character trait. Land, 121 Wn.2d at 500.
A witness's personal opinion is an inadequate foundation on which to admit reputation evidence. State v. Kelly, 102 Wn.2d 188, 195, 685 P.2d 564 (1984). Moreover, for the purposes of reputation evidence, "the inherent nature of familial relationships often precludes family members from providing an unbiased and reliable evaluation of one another." State v. Gregory, 158 Wn.2d 759, 805, 147 P.3d 1201 (2006).
Here, Thornton failed to lay a proper foundation for his reputation evidence; he offered only the conclusory statement that his mother had an "understanding of [his] reputation [for] not us[ing] methamphetamine." 3 RP at 250. Thornton's offer of proof failed to identify the community in which he enjoyed this reputation, and failed to demonstrate that such a community was both general and neutral. Thus, the proffered evidence was merely his mother's personal opinion regarding his methamphetamine use, which is inadmissible. The trial court properly excluded the evidence.
Comment on Guilt
Thornton next contends that his right to jury trial was violated because Officer Deatherage impermissibly commented on his guilt in response to cross-examination. In response to cross-examination, Deatherage testified that she had not fingerprinted the pipe or the baggies; on redirect, the prosecutor asked Deatherage why she had not fingerprinted these items and she responded:
[N]umber one, . . . I didn't have my patrol car with me and didn't have the capability of taking any sort of fingerprints[,] only for the glass pipes.
The plastic bags, with myself and my experience, I don't have the capability of taking fingerprints off a plastic bag. And, number three, the location where the narcotics were found, in my opinion, it was pretty obvious who owned them.
3 RP at 335.
Because Officer Deatherage offered the comment as one of several reasons to explain why she did not fingerprint the pipe or the baggies, it was cumulative of her obvious belief that Thornton unlawfully possessed methamphetamine when she arrested him.
It is improper for a witness to express a personal opinion regarding the guilt of the accused. State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012 (1967). Such impermissible opinion testimony about a defendant's guilt may constitute reversible error because it violates the defendant's constitutional right to a jury trial, which includes independent determination of the facts by the jury. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). In order to determine whether statements constitute impermissible opinion testimony, we consider the circumstances of the case, including: (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001) (quoting City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993), review denied, 123 Wn.2d 1011 (1994)).
Generally, we will not consider an evidentiary issue that is raised for the first time on appeal because failure to object deprives the trial court of the opportunity to prevent or cure any error. RAP 2.5(a)(3); Kirkman, 159 Wn.2d 926. A narrow exception, however, exists for "manifest error[s] affecting a constitutional right." RAP 2.5(a)(3); Kirkman, 159 Wn.2d at 936. But admission of witness opinion testimony on an ultimate fact, without objection, is not automatically reviewable as a "manifest constitutional error." Kirkman, 159 Wn.2d at 936. A "manifest" error under RAP 2.5(a)(3) requires a showing of actual prejudice, which requires "'a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case.'" Kirkman, 159 Wn.2d at 935 (quoting State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999)). Under these circumstances, a manifest error requires "an explicit or almost explicit witness statement" that the defendant is guilty. Kirkman, 159 Wn.2d at 936. The fact that an opinion encompassing ultimate factual issues supports the conclusion that the defendant is guilty does not necessarily make the testimony an improper opinion on guilt. Heatley, 70 Wn. App. at 579.
Thornton cites Demery, 144 Wn.2d at 753, State v. Barr, 123 Wn. App. 373, 98 P.3d 518 (2004), review denied, 154 Wn.2d 1009 (2005), and State v. Dolan, 118 Wn. App. 323, 329, 73 P.3d 1011 (2003), to support his proposition that, if a witness expresses an opinion on an ultimate issue of fact, it is per se manifest constitutional error. But Kirkman expressly disapproved Demery and Dolan to the extent that they held that impermissible opinion testimony was necessarily manifest constitutional error. 159 Wn.2d at 935-36. Moreover, Barr applies the same analysis as Kirkman. 123 Wn. App. at 381 (opinion testimony as to guilt does not necessarily implicate a constitutional right).
Here, Thornton did not object to Officer Deatherage's testimony; as a result, he is required to show that she made an "explicit or almost explicit" comment on his guilt that resulted in actual prejudice. See Kirkman, 159 Wn.2d at 936. Thornton fails to meet this burden. Although Deatherage's comment would likely have been improper had it been standing alone during direct examination, Thornton's trial counsel opened the door to the issue of Deatherage's state of mind by asking why she had not fingerprinted the pipe or the baggies during cross-examination. Thus, on redirect, Deatherage stated that she felt it was "obvious" who possessed the methamphetamine along with several other reasons to explain why she had not fingerprinted the scene and sent the results to the crime lab for analysis. Although a more benign answer would have been that she saw no need to, her answer was not alone a manifest error of constitutional magnitude so prejudicial as to obviate the need to object to preserve it for review. Thornton's Physical Appearance
During oral argument before this court, Thornton argued, for the first time, that the trial court erred when it refused to allow Thornton's mother to testify about his physical appearance during his childhood; Thornton later submitted supplemental briefing on this issue. Thornton did not timely raise this issue on appeal and it lacks merit.
Here, Thornton's offer of proof regarding his mother's proffered testimony about his physical appearance since childhood was inadequate; the blanket assertion that "Thornton's mother would like to testify regarding, traditionally, Mr. Thornton's appearance since he was a child" (3 RP at 249) does not inform the trial court of the legal theory under which the offered evidence is admissible nor does it explain the specific nature of the evidence so that the trial court could properly assess its admissibility. State v. Ray, 116 Wn.2d 531, 538, 806 P.2d 1220 (1991) (citing Mad River Orchard Co. v. Krack Corp., 89 Wn.2d 535, 537, 573 P.2d 796 (1978)). Without an adequate offer of proof, the record is insufficient to establish an adequate foundation to admit the testimony and the trial court did not err by excluding it. State v. White, 43 Wn. App. 580, 583, 718 P.2d 841 (1986) (citing State v. Pam, 98 Wn.2d 748, 763, 659 P.2d 454 (1983), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988)); see also State v. Johnson, 119 Wn.2d 167, 170-71, 829 P.2d 1082 (1992) (issues raised for the first time in oral argument before the Court of Appeals need not be considered). Sufficiency of the Evidence Thornton also argued, for the first time during oral argument before this court, that sufficient evidence does not support his conviction. We disagree.
The State correctly notes the issue is untimely raised and has moved to strike Thornton's untimely and improper brief on the subject. It also adequately addressed the sufficiency of the evidence challenge during oral argument. We have reviewed the entire record and address the issue on its merits in the interest of judicial economy.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences that a trier of fact can draw from that evidence. Salinas, 119 Wn.2d at 201. Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) (citing State v. Casbeer, 48 Wn. App. 539, 542, 740 P.2d 335, review denied, 109 Wn.2d 1008 (1987)). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
Possession of a controlled substance may be actual or constructive. State v. Turner, 103 Wn. App. 515, 520, 13 P.3d 234 (2000). To establish constructive possession of a controlled substance, we must look at the totality of the situation to determine if there is substantial evidence tending to establish circumstances from which the jury can reasonably infer that the defendant had dominion and control of the drugs and, thus, was in constructive possession of them. State v. Porter, 58 Wn. App. 57, 60, 791 P.2d 905 (1990) (quoting State v. Partin, 88 Wn.2d 899, 906, 567 P.2d 1136 (1977)). A jury may infer that a defendant has constructive possession of an item when that person has dominion and control over the premises where an item is located. Turner, 103 Wn. App at 524; State v. Cantabrana, 83 Wn. App. 204, 208, 921 P.2d 572 (1996). Exclusive control by the defendant is not required to establish constructive possession. State v. Amezola, 49 Wn. App. 78, 86, 741 P.2d 1024 (1987).
Whether a passenger's occupancy of a particular part of an automobile would constitute dominion and control of either a controlled substance or the area in which the police discovered a controlled substance depends upon the particular facts in each case. State v. Mathews, 4 Wn. App. 653, 656, 484 P.2d 942 (1971) (citing State v. Potts, 1 Wn. App. 614, 464 P.2d 742 (1969)). But mere proximity to a controlled substance is not enough to prove constructive possession; the State must prove "proximity" of the defendant to the controlled substance "coupled with the other circumstances linking" the defendant to them. See Mathews, 4 Wn. App. at 658.
Thornton argues that his case is similar to State v. Callahan, 77 Wn.2d 27, 459 P.2d 400 (1969). Thornton's reliance is misplaced. In Callahan, the defendant was arrested for possession when the police discovered drugs near him during the search of a houseboat that he did not own on which he had been staying for a few days. 77 Wn.2d at 31. The defendant admitted that he was aware of the drugs and had handled them earlier that day. Callahan, 77 Wn.2d at 31. But despite this circumstantial evidence, our Supreme Court determined that there was insufficient evidence to establish dominion and control because another individual testified that (1) the drugs belonged to him, (2) he brought them onto the houseboat, (3) he had not sold them or given them to anyone else, and (4) he had sole control over them. Callahan, 77 Wn.2d at 31. Thus, the court concluded that it is not within the rule of reasonable hypothesis to hold that proof of possession by the defendant may be established by circumstantial evidence when undisputed direct proof places exclusive possession in some other person. Callahan, 77 Wn.2d at 31-32 (citing State v. Charley, 48 Wn.2d 126, 291 P.2d 673 (1955)).
Because Thornton challenges the sufficiency of the evidence, he admits the truth of the State's evidence and all reasonable inferences that may be drawn from it. See Salinas, 119 Wn.2d at 201. Here, the police discovered the methamphetamine wedged between the cushion and the seatback directly behind Thornton in the back seat of Dill's vehicle; not only was Thornton alone in the back seat, but such a secreted location also demonstrates more than mere proximity. Moreover, unlike Callahan, there is no direct evidence that the drugs belonged to someone else. Thus, Thornton's proximity to the methamphetamine, coupled with the evidence linking him to the drugs, is sufficient evidence to support his conviction.
Cumulative Error
Last, Thornton argues that cumulative error denied him a fair trial. We disagree.
The cumulative error doctrine applies when several errors occurred at the trial court level but none alone warrants reversal. State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003), review denied, 151 Wn.2d 1031 (2004). Instead, the combined errors effectively denied the defendant a fair trial. Hodges, 118 Wn. App. at 673-74. The defendant bears the burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332, 868 P.2d 835, 123 Wn.2d 737, 870 P.2d 964, cert. denied, 513 U.S. 849 (1994). Numerous errors, harmless standing alone, can deprive a defendant of a fair trial. State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984). But here, there is no cumulative error because Officer Deatherage's statement is the one possible evidentiary error and does not accumulate.
Accordingly, Thornton's claims are without merit and we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and PENOYAR, A.C.J., concur.