State v. Mattson-Graham, 012021 WACA, 53595-5-II

Docket Nº:53595-5-II
Opinion Judge:WORSWICK, J.
Judge Panel:We concur: Lee, C.J., Glasgow, J.
Case Date:January 20, 2021
Court:Court of Appeals of Washington




No. 53595-5-II

Court of Appeals of Washington, Division 2

January 20, 2021



Dana Noreen Mattson-Graham appeals her conviction and sentence for third degree assault. Mattson-Graham argues that the trial court abused its discretion by allowing a police officer to provide improper opinion of guilt testimony during trial and by imposing a deoxyribonucleic acid (DNA) collection fee despite her indigency. We disagree and affirm.


One day in March 2019, Mattson-Graham entered a Shell station convenience store to buy a soda. The cashier at the store told Mattson-Graham that she was not allowed in the store and needed to leave. Mattson-Graham left the store and ultimately returned to her van, which was broken down in a large gravel parking lot on the property. Law enforcement eventually responded and arrested Mattson-Graham for trespassing. The State charged Mattson-Graham with third degree assault and second degree criminal trespass.

Detective Mathew Schlecht testified at trial as follows. When he arrived at the Shell station, he saw Mattson-Graham standing outside of her van about 10 to 15 yards from the Shell station. Detective Schlecht contacted Mattson-Graham and placed her under arrest for criminal trespass. Mattson-Graham became extremely upset and started calling Detective Schlecht vulgar names and screaming that he was assaulting her. As Detective Schlecht sat her in the police car and attempted to put her seatbelt on, Mattson-Graham continued to yell and scream at Detective Schlecht and Sergeant Samuel Patrick, who had also arrived at the scene. Mattson-Graham then turned and kicked Detective Schlecht in the hip area. The officers then attempted to remove Mattson-Graham from the car to restrain her feet, but Mattson-Graham stuck her foot underneath the cage separating the back seat from the front seat. When asked if he would describe the kick "as a purposeful act," Detective Schlecht said, "Yes." Verbatim Report of Proceedings (VRP) at 61. Mattson-Graham did not object.

Sergeant Patrick also testified at trial. He recalled seeing Mattson-Graham's foot make contact with the upper portion of detective Schlecht's leg. The State asked Sergeant Patrick about his observations: [STATE]: Now, when the defendant struck the deputy with her leg, was she-describe her body position in relation to Detective Schlecht.

[SGT. PATRICK]: She was partially in the seat sitting down, and then she had to bring her feet up and kick out.

[STATE]: Was she facing him?

[SGT. PATRICK]: Partially.

[STATE]: Was it an intentional kick?

[SGT. PATRICK]: I believe so.

[STATE]: Other than the kick, was she otherwise thrashing her limbs around?

[SGT. PATRICK]: What she could. She was in cuffs.

[STATE]: When she kicked the deputy, was that an attempt to keep him from grabbing her leg?

VRP at 86.

Mattson-Graham objected to the State's question on the basis of speculation. The trial court sustained the objection, and the State asked, "Was the kick an intentional act?" VRP at 86. Sergeant Patrick responded, "It appeared to be." VRP at 86. Mattson-Graham objected on the basis of asked and answered. The trial court sustained this objection also. The State asked, "Was the kick an accident?" and Mattson-Graham objected again on the basis of speculation. VRP at 86. The trial court permitted Sergeant Patrick to answer. Sergeant Patrick testified, "It did not look like an accident." VRP at 87.

Mattson-Graham testified that she did not remember kicking Detective Schlecht and her feelings were hurt at the time. In her closing argument, Mattson-Graham argued that the discrepancies between Sergeant Patrick's, Detective Schlecht's, and Mattson-Graham's recollections of the kick raised a reasonable doubt as to her guilt on the assault charge.

The jury found Mattson-Graham guilty of third degree assault and not guilty of second degree criminal trespass. The trial court imposed legal financial obligations including a $500 victim assessment and a $100 DNA collection fee.

Mattson-Graham appeals her judgment and sentence.


I. Opinion Testimony

Mattson-Graham argues that the trial court abused its discretion by permitting Sergeant Patrick to offer improper opinion of guilt testimony when he testified that he believed Mattson-Graham's kick was intentional. Because Mattson-Graham did not object to the testimony on this basis below and fails to show that a manifest constitutional error occurred, we hold that the issue is not preserved for appeal.

A. Legal Principles

In general, appellate courts will not consider issues raised for the first time on appeal. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007); see RAP 2.5(a). But a party can raise an error for the first time on appeal if it is a manifest error affecting a constitutional right. Kirkman, 159 Wn.2d at 926. The defendant must show that the constitutional error actually affected her rights at trial, thereby demonstrating the actual prejudice that makes an error "manifest" and allows review. Kirkman, 159 Wn.2d at 926-27.

"On appeal, a party may not raise an objection not properly preserved at trial absent manifest constitutional error. We adopt a strict approach because trial counsel's failure to object to the error robs the court of the opportunity to correct the error and avoid a retrial." State v. Powell, 166 Wn.2d...

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