Opinion
No. 85286-8-1
08-12-2024
STATE of Washington, Respondent, v. Ahmed Mohamud WASUGE, Appellant.
Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Kate Benward, King County Department of Public Defense, 710 2nd Ave., Seattle, WA, 98104, for Appellant. Ian Ith, King County Prosecuting Attorney’s Office, 516 3rd Ave., Seattle, WA, 98104-2385, for Respondent.
Honorable Catherine D. Shaffer, Judge.
Washington Appellate Project, 1511 Third Avenue, Suite 610, Seattle, WA, 98101, Kate Benward, King County Department of Public Defense, 710 2nd Ave., Seattle, WA, 98104, for Appellant.
Ian Ith, King County Prosecuting Attorney’s Office, 516 3rd Ave., Seattle, WA, 98104-2385, for Respondent.
OPINION PUBLISHED IN PART
Feldman, J.
¶1 A jury convicted Ahmed Mohamud Wasuge of being in actual physical control of a motor vehicle while under the influence of intoxicating liquor, operating a motor vehicle without a functioning ignition interlock device, and driving while his license was revoked. On appeal, Wasuge argues we should reverse his convictions and remand for a new trial due to several alleged evidentiary errors and prosecutorial misconduct. Wasuge also contends that the victim penalty assessment (VPA) should be stricken from his judgment and sentence, an issue that the State concedes.
¶2 In the published portion of this opinion, we conclude the trial court erred in admitting expert testimony that (a) the general population metabolizes alcohol at a rate of.01 to.02 percent per hour and (b) the American Medical Association (AMA) recommends that state legislatures lower the "per se" blood alcohol concentration (BAC) limit for driving under the influence (DUI) offenses from.08 to.05 percent. But we also conclude that these errors were harmless. In the unpublished portion of the opinion, we address Wasuge’s remaining assignments of error. We remand for the trial court to strike the VPA from Wasuge’s judgment and sentence but otherwise affirm.
BAC can be expressed in terms of grams of alcohol per 100 milliliters of blood (i.e.,.08 grams per 100 milliliters) or a percentage (i.e.,.08 percent), and these terms are used interchangeably. See State v. Reier, 127 Wash. App. 753, 758, 1 12 P.3d 566 (2005). The "per se" BAC limit refers to the BAC level at which a person is guilty of driving or being in actual physical control of a motor vehicle while under the influence of alcohol under the per se prongs of RCW 46.61.502(1) and RCW 46.61.504(1), as discussed below.
I
¶3 On the morning of October 12, 2022, a 911 caller reported that a vehicle had abruptly stopped in the center of a residential road. Upon arriving at the scene at approximately 6:45 a.m., King County Sheriff's Office Deputies Andrew Farley and Andrew Robinson saw a stationary vehicle in the southbound lane of the road with its headlights and taillights illuminated. The officers noticed the vehicle’s engine was running, the keys were in the ignition, and the transmission was in drive. The officers also observed Wasuge sitting in the reclined driver’s seat asleep with his feet resting on the floorboard.
¶4 The officers decided to "box the vehicle in" by parking their vehicles in front of and behind Wasuge’s vehicle. Farley then knocked on the front driver’s side window and announced himself as a law enforcement officer. When Wasuge awoke, he looked at Farley and began rolling down the back driver’s side window before rolling down the front driver’s side window. Farley immediately smelled "an odor of alcoholic beverages coming from the vehicle" and ordered Wasuge to put the gearshift in park and exit the vehicle, which he did.
¶5 When Farley asked Wasuge "why he was asleep in the middle of the roadway," Wasuge said he was waiting for a friend and pointed at different houses in multiple di- rections. Farley suspected that Wasuge had been drinking alcohol because his breath smelled of alcohol; his speech was slurred; his eyes were bloodshot, glassy, and watery; he was unbalanced when walking and standing; and he generally appeared "dazed and confused." Farley asked Wasuge if he had been drinking, which Wasuge denied. After Wasuge performed poorly on the field sobriety tests (FSTs), Farley placed him under arrest for DUI. Farley then transported Wasuge to a hospital where a nurse drew his blood at 8:51 a.m. Later testing of this blood determined that Wasuge’s BAC was.076 percent.
Wasuge exhibited six of six clues on the horizontal gaze nystagmus test, five of eight clues on the walk-and-turn test, and four of four clues on the one leg stand test. See State v. Mecham, 186 Wash.2d 128, 132, 380 P.3d 414 (2016) (explaining procedure and significance of field sobriety tests). Wasuge was also unable to correctly count backward from 67 to 54.
¶6 The State charged Wasuge with three counts of violation of state motor vehicle laws: count 1 for DUI, count 2 for operating a vehicle without a functioning ignition interlock device, and count 3 for driving while his license was revoked. At trial, Wasuge stipulated that he was required to drive with a functioning ignition interlock device, that his license had been revoked, and that he had previously been convicted of a felony DUI offense (which elevated count 1 to a felony). Wasuge testified that before being discovered by police on the morning of October 12, 2022, he had drunk multiple beers with a friend in Seattle and had then attempted to drive to his home in Sammamish. Wasuge claimed that his car "broke down" near his home on the road where officers later found him and that he tried calling friends and family for assistance before eventually falling asleep.
¶7 The jury convicted Wasuge of counts 2 and 3 as charged, but it did not reach a unanimous verdict on count 1 and instead convicted Wasuge of the lesser included offense of being in actual physical control of a motor vehicle while under the influence. Wasuge was sentenced within the standard range. He appeals.
II
A. Expert testimony
¶8 Wasuge argues the trial court abused its discretion by admitting expert testimony from the State’s toxicologist regarding (a) the rate at which the general population metabolizes alcohol and (b) the AMA's recommendation that state legislatures lower the per se BAC limit to.05 percent. We conclude the trial court erred in both respects but the errors were harmless.
[1–6] ¶9 Under ER 702, expert testimony is admissible if it "would be helpful to the trier of fact." State v. Lewis, 141 Wash. App. 367, 389, 166 P.3d 786 (2007). Expert testimony is helpful if "it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury." State v. Thomas, 123 Wash. App. 771, 778, 98 P.3d 1258 (2004). Moreover, the expert’s testimony must be relevant, meaning it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." ER 401, 402. Speculative testimony is irrelevant, even if it comes from an expert. Lewis, 141 Wash. App. at 389, 166 P.3d 786. We review a trial court’s evidentiary rulings for an abuse of discretion. City of Seattle v. Pearson, 192 Wash. App. 802, 817, 369 P.3d 194 (2016). "A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or untenable reasons." State v. Griffin, 30 Wash.App.2d 164, 544 P.3d 524, 529 (2024).
¶10 Our motor vehicle statutes prescribe two ways of showing that a person who was driving or in control of a vehicle was "under the influence" of intoxicating liquor. Under the "per se" prong, the State may simply prove that "the person has within two hours after driving [or after being in actual physical control of the vehicle], an alcohol concentration of 0.08 or higher as shown by analysis of the person’s breath or blood made under RCW 46.61.506." RCW 46.61.502(1)(a); RCW 46.61.504(1)(a). Alternatively, under the "affected by" prong, the State must prove that "the person is under the influence of or affected by intoxicating liquor" while driving or in actual physical control of the vehicle. RCW 46.61, 502(1)(c); RCW 46.61.504(1)(c).
¶11 Here, the State elected to try Wasuge solely under the "affected by" prong and did not charge him with violating the "per se" prong. Accordingly, to convict Wasuge of either driving under the influence as charged in count 1 or its lesser included offense of being in actual physical control of a motor vehicle while under the influence, the jury— as instructed by the trial court—had to find that Wasuge was "under the influence of or affected by intoxicating liquor" when he was driving or in actual physical control of the motor vehicle. To satisfy this element of the charged offense, the court’s instructions required the State to prove that Wasuge’s "ability to drive a motor vehicle [was] lessened in any appreciable degree." See State v. Arndt, 179 Wash. App. 373, 386, 320 P.3d 104 (2014).
¶12 At trial, the State sought to prove that Wasuge was under the influence of or affected by intoxicating liquor through its toxicologist, Stacy Dougher, who testified about the results of Wasuge’s blood test and the general effects of alcohol on the body. Two aspects of Dougher’s testimony are relevant on appeal. First, over Wasuge’s objection, Dougher testified that after consuming alcohol a person’s BAC will rise for a period of time that "varies from person to person and based on the circumstances" for "[g]enerally, anywhere from 20 minutes up to two hours," followed by an "elimination phase" during which the body metabolizes (or burns off) the alcohol at "a standard rate of.01 to.02 grams per 100 milliliter per hour for the general population." Second, when asked if "there is a blood alcohol level at which everyone is affected such that they shouldn’t drive a vehicle," Dougher responded, "The per se in the state of Washington is 0.08 grams per 100 milliliters." And when asked, "What does the literature say about impairment at BACs of.05," Dougher replied, "There are several studies, particularly by the AMA … that talk about BAC in terms of that [.05] and recommending that potentially as a per se limit as it can be an indicator [of] impairment in the general population." Dougher continued, "They understand that people are potentially affected by alcohol at a level less than that.08, and so they recognize that likely predominantly or all individuals are impaired at a.05 instead, and they do recommend that as a better cutoff." Wasuge objected to this testimony as well.
¶13 Two cases illustrate the limits Washington courts have placed on the admissibility of expert testimony to prove a person’s intoxication such as Dougher’s testimony here. In the first case, Gerlach v. Cove Apartments, LLC, 196 Wash.2d 111, 115, 471 P.3d 181 (2020), the plaintiff successfully sued an apartment complex for negligence after she fell from a decaying balcony. On appeal, the apartment complex claimed the trial court erred in excluding evidence that would have shown the plaintiff was contributorily negligent due to her alcohol intoxication, such as blood test results showing she had a BAC of.219 percent approximately an hour after the fall and expert testimony that " ‘essentially everybody will be impaired’ " at the plaintiff's BAC. Id. at 119-21, 471 P.3d 181. The Supreme Court rejected the argument and held this testimony was "merely ‘speculative’ " as to the plaintiff's behavior because it concerned " ‘population averages’ " and the "general effects of intoxication" rather than "the effect it actually had on [the plaintiff]." Id. at 121-23, 471 P.3d 181. The court noted that the expert did not know what particular time the plaintiff consumed alcohol on the night in question or what her " ‘burn-off " rate, " ‘absorption rate,’ " or " ‘metabolic rate’ " would be with regard to alcohol. Id. at 122, 471 P.3d 181.
¶14 In the second case, Pearson, the defendant was convicted of driving under the influence of cannabis after the State introduced a blood test showing the defendant had a tetrahydrocannabinol (THC) concentration of 20 nanograms. 192 Wash. App. at 806-09, 369 P.3d 194. The State also elicited testimony from a toxicologist that the per se THC limit is 5 nanograms even though that limit was not yet in effect when the defendant committed the alleged offense. Id. at 817-18, 369 P.3d 194 (citing RCW 46.61.502(1)(b)). On appeal, we held the trial court abused its discretion in admitting this evidence because "[e]vidence of the per se legal THC limit not in effect when the offense occurred was irrelevant to the central question at trial—whether [the defendant’s] ability to drive was lessened in any appreciable degree by her use of marijuana." Id. at 818, 369 P.3d 194.
[7] ¶15 Applying these legal principles here, the trial court abused its discretion in admitting the contested portions of Dougher’s testimony. Like the expert in Gerlach, Dougher discussed the burn-off rate of.01 to.02 percent for the "general population" without discussing the rate at which Wasuge would have metabolized the alcohol. Other than the results of Wasuge’s blood test, Dougher admittedly knew nothing about Wasuge, such as when he drank alcohol prior to his arrest, how much alcohol he drank, the rates at which his body absorbs and metabolizes alcohol, or the extent to which his driving was affected by alcohol. Nor did Dougher perform a retrograde extrapolation—a forensic technique in which a toxicologist uses a mathematical formula to calculate a person’s BAC at a prior point in time using the person’s later verified BAC. See State v. Wilbur-Bobb, 134 Wash. App. 627, 632-34, 141 P.3d 665 (2006). Without this testimony about how Wasuge’s body would have metabolized alcohol, Dougher’s testimony about the average metabolization rate impermissibly invited the jury to speculate about the amount of alcohol in Wasuge’s blood at the time he was driving or in physical control of his vehicle. Thus, as in Gerlach, the testimony was "merely speculative as to [Wasuge’s] behavior." 196 Wash.2d at 123, 471 P.3d 181. The trial court abused its discretion by admitting such testimony.
[8]¶16 As to Dougher’s testimony about the AMA’s recommended lower per se BAC limit, like the expert in Gerlach, Dougher impermissibly testified that "predominantly or all individuals are impaired at a.05 instead" without specifying whether Wasuge would be impaired at this BAC level. And similar to the expert in Pearson, Dougher referred to a per se BAC limit that is not codified into Washington law as a "better cutoff’ than the existing limit of.08 percent for determining whether a person’s ability to drive is affected by alcohol. To paraphrase our holding in Pearson, "[e]vidence of the per se … limit not in effect when the offense occurred was irrelevant to the central question at trial—whether [Wasuge’s] ability to drive was lessened in any appreciable degree by" his consumption of alcohol. 192 Wash. App. at 818, 369 P.3d 194. Because Dougher’s testimony about this hypothetical per se BAC limit was not relevant to any issue in the trial, the trial court abused its discretion by admitting it.
¶17 The State contends that Dougher’s testimony about the burn-off rate for the general population was permissible under City of Seattle v. Personeus, 63 Wash. App. 461, 819 P.2d 821 (1991). In Personeus, we held that expert testimony is necessary regarding the rate at which alcohol burns off because this topic, unlike the fact that alcohol burns off, is not a "matter of common knowledge about which inexperienced persons are capable of forming a correct judgment." Id. at 464, 819 P.2d 821 (quoting State v. Smissaert, 41 Wash. App. 813, 815, 706 P.2d 647 (1985)). We also stated that the expert’s testimony in Personeus was relevant because it concerned the burn-off rate "for someone of Personeus’ weight." Id. at 465, 819 P.2d 821. Because the State presented no evidence of the burn-off rate for someone of Wasuge’s weight, Personeus further supports our conclusion that Dougher’s testimony about general burn-off rates was irrelevant and speculative.
¶18 The State also argues that Dougher’s testimony about per se BAC limits was permissible because our Supreme Court in State v. Salgado-Mendoza, 189 Wash.2d 420, 437, 403 P.3d 45 (2017), acknowledged that toxicologists can testify in DUI cases about "the effects of alcohol on the body, how blood-alcohol is measured, and procedures for roadside sobriety testing." The State’s reliance on Salgado-Mendoza is misplaced because the court there did not permit a toxicologist to testify about suggested changes to a law under which the defendant was not charged. Moreover, the court’s decision in Salgado-Mendoza predates its later decision in Gerlach, which limits the extent to which experts may testify about how the average person metabolizes alcohol or a person’s impairment at a given BAC.
¶19 The State further claims that Pearson is distinguishable because that case concerned the ex-post facto application of a law whereas here "the State did not present the AMA’s study about 0.05-percent alcohol concentration as the law of the state" but rather to discuss "the science of how alcohol—and how much alcohol—affects the human body and its ability to operate a motor vehicle." This argument ignores the portion of Dougher’s testimony at issue, where Dougher explained that a prominent association of medical experts believes the legislature should amend a statutory provision—under which Wasuge was not charged—in such a manner that would automatically resolve the key issue in the trial: whether Wasuge was under the influence of or affected by intoxicating liquor. As in Pearson, this testimony "crosses into the forbidden territory in which testimony with an ‘expert’ imprimatur opines on the ultimate issue of guilt, which is for the trier of fact alone." See State v. Crow, 8 Wash. App. 2d 480, 497, 438 P.3d 541 (2019) (quoting United States v. Sosa, 897 F.3d 615, 619 (5th Cir. 2018)).
¶20 The State’s reliance on inadmissible testimony in this case is especially concerning, as it appears to be strategic. The State, as noted previously, did not seek to convict Wasuge under the "per se" prong of RCW 46.61.502(1)(a) or RCW 46.61.504(1)(a). Nor did it present a retrograde extrapolation, which might have been used to show that Wasuge’s BAC was.08 percent or higher while he was driving or in actual physical control of the motor vehicle. See 32 Linda M. Callahan, Washington Practice: Washington DUI Practice Manual §§ 1.4 at 8-9, 2.5 at 105-06 (2023-24 ed.) (noting that the State may use retrograde extrapolation to show the defendant had a BAC of.08 percent or higher within two hours after driving or being in actual physical control of a vehicle). Because the State did not utilize this method of proving guilt, the trial court’s jury instructions do not refer to a per se BAC limit or retrograde extrapolation.
¶21 Yet at the same time, the record repeatedly shows that the State attempted to persuade the jury to convict Wasuge of being "under the influence" by arguing that his BAC previously exceeded the per se limit. During voir dire, the State asked jurors about their opinions on "proposed legislation to lower the legal limit to.05 in the state of Washington." In that way, the jury was "primed to view the prosecution through a particular prism." State v. Zamora, 199 Wash.2d 698, 712, 512 P.3d 512 (2022). Then, when Dougher testified that the AMA "recommend[s] [.05 percent] potentially as a per se limit as it can be an indicator [of] impairment in the general population," the prosecutor asked, "And just to clarify, what do they recommend," after which Dougher clarified that the AMA recommends.05 percent as a "better cutoff." The State candidly admits in its brief that Dougher’s testimony about the AMA’s recommendation was part of her "discussion of the science behind alcohol-impaired driving and per-se legal limits" (Emphasis added.)
[9]¶22 The prosecutor then referred back to Dougher’s testimony in closing argument, reminding jurors, "You also heard from Ms. Dougher that the [AMA] has literature that people can be impaired or unable to drive at a.05. I want you to take that into consideration." The prosecutor also reiterated that the "elimination for an average person is between.01 and.02" and asked the jury to apply that rate retroactively based on Wasuge’s testimony that he stopped drinking at 3:30 a.m. on the morning he was arrested. And finally, the prosecutor emphasized that "everyone’s unsafe to drive at.08. And Mr. Wasuge was at a.076. He was just below that limit." The State’s dogged reliance on this evidence—relating to a statutory limit that does not apply here—runs counter to the principle that a prosecutor seeking to secure a conviction "may land ‘hard blows,’ but it may not land ‘low ones.’" State v. Arredondo, 188 Wash.2d 244, 281, 394 P.3d 348 (2017) (González, J., dissenting.) (quoting Caro v. Smith, 59 Cal. App. 4th 725, 739, 69 Cal. Rptr. 2d 306 (1997)).
[10–12] ¶23 These evidentiary errors would warrant reversal if this were a close case. But it is not. Under the nonconstitutional harmless error standard applicable to evidentiary errors, Wasuge is not entitled to a new trial unless he shows that ‘"within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected.’ " State v. Goggin, 185 Wash. App. 59, 69, 339 P.3d 983 (2014) (quoting State v. Calegar, 133 Wash.2d 718, 727, 947 P.2d 235 (1997)). "The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole." State v. Bourgeois, 133 Wash.2d 389, 403, 945 P.2d 1120 (1997).
¶24 Given the overwhelming evidence that Wasuge was under the influence of or affected by intoxicating liquor, we are unable to conclude, as required to grant relief, that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected. Police found Wasuge asleep behind the wheel of a vehicle sitting in the lane of travel with the engine idling and the gearshift in drive. Farley testified that he believed Wasuge was intoxicated because he smelled the "strong, obvious odor" of alcohol on Wasuge’s breath and observed that Wasuge’s balance was unsteady, his speech was slurred, and his eyes were glassy, bloodshot, and watery. Robinson also testified that he could smell alcohol on Wasuge’s breath and that he believed Wasuge was intoxicated. Wasuge performed poorly on the FSTs, which Dougher testified are a reliable indicator of alcohol consumption. Lastly, Wasuge admitted to drinking multiple beers before driving the vehicle, and he had a BAC of.076 percent about two hours after he was first discovered behind the wheel of his vehicle. See RCW 46.61.504(4)(a) (blood test results showing "an alcohol concentration above 0,00 may be used as evidence that a person was under the influence or affected by intoxicating liquor"). Because Wasuge has not shown that within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected, he is not entitled to a new trial on this basis.
Although Wasuge argues that his statements and the blood test results were erroneously admitted, we conclude the trial court did not err in admitting this evidence for the reasons discussed in parts 11(B) and 11(D) below.
¶25 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. See RCW 2.06.040.
WE CONCUR:
Chung, J.
Coburn, J.