State Of Washington, Respondent V. Luis Ruben Medel Soriano, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50533-9-II
Respondent,
v.
LUIS RUBEN MEDEL SORIANO, UNPUBLISHED OPINION
Appellant.
SUTTON, J. — Luis Medel Soriano appeals his conviction for attempting to elude a pursuing
police vehicle with an endangerment sentencing enhancement. He argues that the trial court erred
by admitting an officer’s speculative opinion testimony and by excluding evidence that, on prior
occasions, Medel Soriano had properly pulled over when instructed to by law enforcement. Medel
Soriano also argues that the State committed prosecutorial misconduct during closing argument.
We disagree and affirm Medel Soriano’s conviction.
FACTS
The State charged Medel Soriano with one count of attempting to elude a pursuing police
vehicle1 with an endangerment enhancement.2
City of Castle Rock Police Officer Jeff Gann testified at trial. Officer Gann testified that
he was on duty on August 20, 2016, when he received a call from his dispatcher informing him
1 RCW 46.61.024(1).
2 RCW 9.94A.533(11); .834.
Filed
Washington State
Court of Appeals
Division Two
March 19, 2019

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that the Washington State Patrol was attempting to overtake two motorcycles heading northbound
on Interstate 5 at a high rate of speed. Because Officer Gann was in the area, he proceeded to the
freeway to attempt to intercept the motorcycles. Once on the freeway, Officer Gann saw two
motorcycles approaching at a high rate of speed. As soon as the motorcycles passed Officer Gann,
he activated all of his emergency lights and siren, and got behind them to attempt a traffic stop.
Officer Gann explained that his patrol vehicle was a large sport utility vehicle (SUV),
which was more heavily marked with lights than most patrol vehicles in the county. The SUV was
equipped with a 52-inch overhead light bar with multiple rows of flashing LED lights in red, blue,
and white. The SUV also had red and blue lights in the grill, on the sides of the push bar, as well
as on the back of the mirrors and the back of the vehicle. The SUV was also equipped with a 100-
watt siren and says “Castle Rock Police” in large letters across both sides. 1 Report of Proceedings
(RP) at 55.
When asked what happened after Officer Gann got behind the motorcycles and activated
his lights and siren, he replied:
The lead motorcycle, a black motorcycle, increased its speed significantly
and the driver – the rider of the motorcycle looked back over his shoulder. I’m
assuming that he was looking back to see if I was actually behind him.
1 RP at 62. Medel Soriano objected to Officer Gann’s response as speculation. The trial court
overruled the objection. The State nonetheless rephrased its question to clarify that the
motorcyclist, who was later identified as Medel Soriano, looked over his shoulder just after Officer
Gann activated his lights.
Officer Gann testified that he was about a hundred feet behind the motorcyclist at that
point, and the rider dramatically increased his speed after Officer Gann activated his lights. RP

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(6-15-17) 63. Officer Gann testified that the motorcycle then began swerving in and out of other
cars, changing lanes without signaling, and passed between two cars that were side by side by
riding along the dotted line between the two lanes. Officer Gann testified that despite traveling at
over 100 miles per hour in his patrol vehicle, the motorcycle was outpacing him.
Officer Gann testified that the motorcycle swerved to exit off the freeway. Officer Gann
testified that there is no gas station off that exit and no signs indicating a gas station. Officer Gann
explained that he lost sight of the motorcycle as it proceeded up the exit ramp while Officer Gann
tried to follow. When Officer Gann got to the top of the exit ramp, another driver pointed towards
Burma Road, which is a two-lane, secondary county road that extends about three-quarters of a
mile before ending at a Weyerhaeuser truck facility. The truck facility is blocked by a large,
yellow, metal gate.
Officer Gann testified that when he got to the gate, he saw a 70-foot long skid mark on the
road. The motorcycle had crashed, and Medel Soriano was located about 40 feet away from the
motorcycle. Officer Gann testified that Medel Soriano was lying on the ground moaning and
groaning. Officer Gann called a medic unit, and when the medic arrived and conducted an
examination, she determined that Medel Soriano needed to be transported to a hospital via
helicopter.
On the second day of trial, the parties and the trial court revisited Medel Soriano’s objection
from the prior day to Officer Gann’s testimony that he saw Medel Soriano look back over his
shoulder and assumed he was looking back to see if Officer Gann was behind him. Medel Soriano
argued:

No. 50533-9-II
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I think any time a witness says “I am assuming” or “I think that” it leads right in to
him being – making a speculative statement, which is what my – what my objection
was, was speculation. And so he’s, again, trying to assume what is in my client’s
head by saying I think he was looking back for whatever, dot, dot, dot.
2 RP at 121 (emphasis added). The trial court upheld its previous ruling, explaining, “It appears
to be an observation and a process that he was going through at that time, so – in his head of what
he was thinking.” 2 RP at 122.
Medel Soriano sought to admit five photographs of himself with law enforcement officers
after being pulled over on prior occasions. He explained that he would testify that on each prior
occasion he pulled over as instructed and that his habit was not to flee. The State opposed the
photographs and potential testimony, arguing that it was irrelevant character evidence. The trial
court ruled that the photographs were irrelevant character evidence and inadmissible under the
rules of evidence. The State also made a motion to exclude any testimony “along the lines of we
always pull over when the cops signal us to.” 2 RP at 130. The State argued that such testimony
would be irrelevant character evidence. The trial court ruled that the testimony would “go to
character and propensity” and granted the motion to exclude. 2 RP at 131.
Medel Soriano testified at trial on his own behalf. Medel Soriano testified that his
peripheral vision was limited by his helmet, and at no point during his motorcycle ride did he see
any police lights or hear any sirens. Medel Soriano recalled that he was going about 75 miles per
hour and that his ability to hear was very restricted. He testified that he exited the freeway because
he was thirsty and needed to get gas. Medel Soriano testified that upon exiting the freeway he
realized there was no gas station off the exit; he stopped to check his phone to look at a map, then

No. 50533-9-II
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attempted to reenter the freeway but took the wrong road. He testified that when he was going
down the wrong road he was going 35 to 40 miles per hour.
Medel Soriano testified that as he rode up a small hill, he saw a car sitting in the road and
not moving. He tried to pass the car but discovered there was a gate across the road in front of the
car. Medel Soriano testified that he attempted to go to the left of the gate but bumped into a tree
and was knocked off his motorcycle. Medel Soriano characterized his injuries as a broken thumb
and a “sliver” in his stomach from a small piece of a branch. 2 RP at 161. Medel Soriano testified
that ten minutes after his accident he was still on the ground when a police officer arrived.
The State called Officer Gann as a rebuttal witness. Officer Gann testified that he came
upon Medel Soriano about thirty seconds to a minute after Medel Soriano’s crash. Officer Gann
testified that there were no cars in the road near the gate, and if there had been, he would have
contacted the driver as a witness. Officer Gann testified that the ambulance crew decided Medel
Soriano needed to be transported for medical treatment.
In closing argument, the State reviewed the evidence presented in the case and argued that
Medel Soriano’s version of events was not credible. In his closing argument, Medel Soriano
argued that he did not know an officer was pursuing him. In its closing rebuttal, the State argued
that Medel Soriano’s explanation for exiting the freeway was not credible. The State said:
He took Exit 52, that a – that’s a fact. And the explanation out of the
Defense side of that is it’s just a bunch of baloney. Gas station. No gas station
there, no signs there. I mean, come on.
2 RP at 224.
The jury found Medel Soriano guilty and returned a special verdict of “yes” as to the
endangerment enhancement. Clerk’s Papers at 20. Medel Soriano appeals.

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ANALYSIS
I. EVIDENTIARY RULINGS
A. SPECULATIVE OPINION TESTIMONY
Medel Soriano argues that the trial court erred by allowing Officer Gann to testify that
Medel Soriano looked behind him and that Officer Gann assumed it was to see if Officer Gann
was behind him. On appeal, Medel Soriano argues that Officer Gann’s testimony was
impermissible opinion testimony regarding the essential element of knowledge. We hold that this
issue is not preserved for appeal.
On appeal, a party may raise only objections that are properly preserved, unless the party
demonstrates manifest constitutional error. State v. Powell, 166 Wn.2d 73, 82, 206 P.3d 321
(2009). Courts will not reverse a trial court's decision to admit evidence where the defendant
argues for reversal based on an evidentiary issue not raised at trial. Powell, 166 Wn.2d at 82. “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.” Powell, 166 Wn.2d at 82. The defendant has
the initial burden of showing that an alleged error was manifestly unconstitutional. State v.
O'Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009). A defendant cannot simply assert that an error
occurred at trial and label the error constitutional; instead, he must identify an error of
constitutional magnitude and show how the alleged error actually affected his rights at trial. State
v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011).
Here, Medel Soriano did not object to Officer Gann’s testimony on the grounds that it was
impermissible opinion testimony. Rather, he argued that the testimony was impermissible
speculation. Because we will only consider on appeal the specific objection raised in the trial

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court, Medel Soriano failed to preserve his objection to the testimony as improper opinion
testimony. Further, because Medel Soriano makes no argument that the admission of Officer
Gann’s testimony constitutes a manifest constitutional error, we do not address the issue for the
first time on appeal.
B. HABIT EVIDENCE
Medel Soriano also argues that the trial court abused its discretion by excluding evidence
that on prior occasions Medel Soriano had properly pulled over when instructed to by law
enforcement. He argues that the evidence should have been admitted under ER 406. We disagree.
ER 406 provides that “[e]vidence of the habit of a person . . . is relevant to prove that the
conduct of the person . . . on a particular occasion was in conformity with the habit.” “Caution is
essential in dealing with habit evidence, because it verges on inadmissible evidence of character.”
Norris v. State, 46 Wn. App. 822, 826, 733 P.2d 231 (1987). The admissibility of alleged habit
evidence is within the trial court’s discretion. Norris, 46 Wn. App. at 826. We defer to a trial
court’s evidentiary ruling unless no reasonable person would take the view adopted by the trial
court. State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001).
Here, Medel Soriano’s proffered evidence amounted to no more than admissions that on
five previous occasions Medel Soriano had been pulled over by law enforcement. This evidence
falls short of describing the “‘semi-automatic, almost involuntary and invariabl[y] specific
responses to fairly specific stimuli’” required for habit evidence under ER 406. Wash. State
Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 325, 858 P.2d 1054 (1993)
(alteration in original) (quoting Comment, ER 406; 5 K. Tegland, Wash. Prac., Evidence 459 (3d
ed. 1989)). “It is the notion of the invariable regularity that gives habit evidence its probative

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force.” State v. Thompson, 73 Wn. App. 654, 659 n.4, 870 P.2d 1022 (1994) (internal quotation
mark omitted). Given our deference to the trial court’s evidentiary decision, we hold that the trial
court did not abuse its discretion by not admitting the evidence.
II. PROSECUTORIAL MISCONDUCT
Medel Soriano also argues that the State committed prosecutorial misconduct when it used
the word “baloney” during closing argument to describe Medel Soriano’s testimony. Br. of
Appellant at 12. We disagree.
To prevail on his prosecutorial misconduct claim, Medel Soriano must demonstrate that in
the context of the entire record and trial circumstances that the prosecutor’s conduct was both
improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). To
demonstrate prejudice, Medel Soriano must show a substantial likelihood that the improper
conduct affected the verdict. Thorgerson, 172 Wn.2d at 442–43. Because Medel Soriano did not
object to the alleged misconduct at trial, he must also show that any misconduct was so flagrant
and ill-intentioned that any resulting prejudice could not have been cured by a jury instruction.
Thorgerson, 172 Wn.2d at 443. We review a prosecutor’s comments at closing in the context of
the entire argument, the issues in the case, the evidence addressed in the argument, and the
instructions to the jury. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). “The State
has wide latitude in drawing and expressing reasonable inferences from the evidence, including
inferences about credibility.” State v. Rodriguez-Perez, 1 Wn. App. 2d 448, 458, 406 P.3d 658
(2017).
Here, the State’s closing argument focused on the credibility of Medel Soriano’s testimony.
The State argued that Medel Soriano was not a credible witness, referencing logical gaps in his

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story and arguing that Officer Gann’s version of events was more credible. Taking the State’s
comment in the context of its closing argument, the State’s comment that Medel Soriano’s
explanation for exiting the freeway was “baloney” was not improper. Moreover, Medel Soriano
cannot show that any misconduct was so flagrant and ill-intentioned that it caused incurable
prejudice. Consequently, we hold that the State did not commit prosecutorial misconduct.
We affirm Medel Soriano’s conviction.
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 in accordance with RCW 2.06.040,
it is so ordered.
SUTTON, J.
We concur:
WORSWICK, P.J.
MELNICK, J.