FRANK L. KURTZ, C.J.
Alan Nelson was charged with first degree child rape and first degree child molestation. At trial, the police officer who interviewed Mr. Nelson testified that Mr. Nelson would not look him in the eye when Mr. Nelson was denying the allegations and giving his version of the events. The police officer told the jury that he had some training in interpreting body language. The officer testified that Mr. Nelson's refusal to look him in the eye could be a sign of deception. The jury convicted Mr. Nelson and he appeals, contending that the court erred by admitting the officer's testimony that his lack of eye contact in the interview could be indicative of deception. We conclude the trial court erred by allowing the testimony that Mr. Nelson's lack of eye contact during the interview could be a sign of deception. We reverse Mr. Nelson's convictions.
FACTS
Alan Nelson married Veronica M. in July 1992, and separated from her in February 1997. Later, they divorced. During the marriage, Mr. Nelson lived with Ms. M. and her two children from a previous marriage, C.M. and S.L. C.M., a girl, was born on March 21, 1985, and her little brother, S.L., was born almost exactly two years later on March 20, 1987.
At trial, both children testified that during their mother's marriage to Mr. Nelson, he touched them inappropriately. C.M. testified that he touched her breasts and vagina. She also testified that Mr. Nelson bathed with her. On one occasion in the bathroom, Mr. Nelson had C.M. bend over and he proceeded to examine her vaginal area, using his fingers. He explained to her that he thought `something was ripped' and he wanted to examine her. Mr. Nelson also attempted vaginal penetration and oral sex with C.M. C.M. could not say how many times Mr. Nelson inappropriately touched her, but she estimated it was more than 20 times.
S.L. described incidents in which Mr. Nelson would ask S.L. to masturbate in front of him. Also, Mr. Nelson touched and masturbated S.L.'s penis. Additionally, at Mr. Nelson's direction, S.L. touched and masturbated Mr. Nelson's penis. S.L. could not recall the exact number of times these acts occurred, but estimated that they occurred at least 10 times.
Deputy Sheriff Charles Humphreys interviewed Mr. Nelson about the allegations of abuse. Mr. Nelson told the deputy that he had bathed with C.M., but he had never touched her inappropriately. He also admitted he had showered with S.L. with Ms. M.'s consent.
Deputy Humphreys interviewed Mr. Nelson a second time. During the second interview, Mr. Nelson said that he had bathed with the children on several occasions, all with their mother's consent. He said that Ms. M. had requested the baths because often the children needed to be bathed quickly and this was the easiest and quickest way to bathe them.
Mr. Nelson further stated that it was common in their house for one person to be showering and another to be using the toilet at the same time. He stated that on one such occasion, C.M. got out of the shower and noticed blood on her towel. Mr. Nelson said he thought perhaps she was starting her period or had scratched herself while showering. He said he then asked her to get down on her hands and knees in front of him so he could inspect her anus to see if she was bleeding from there. When she did this, Mr. Nelson asserted that he could tell from his `personal medical experience' that her hymen was broken. Mr. Nelson said he questioned C.M. about this, and he reported she said she had inserted a roll of Sweet Tarts inside her and that broke her hymen.
During the second interview, Mr. Nelson also told the deputy that the children were masturbating quite often. He said he had witnessed it himself, and other people, including members of his church, had told him the children were masturbating. Mr. Nelson said that he and Ms. M. spoke with S.L. about the matter. Later, when alone with him, Mr. Nelson asked S.L. to show him what he was doing. Mr. Nelson told the deputy that `[a]s a concerned parent, I wanted to know exactly how he was doing this.' Mr. Nelson told the deputy that he instructed S.L. to show him how he was masturbating, to make sure that he was doing it correctly.
During the initial interview with Mr. Nelson, Deputy Humphreys reported that Mr. Nelson appeared to be nervous. During trial, over objection, the deputy described the first interview:
A. When I spoke to Mr. Nelson, he would not hold eye contact with me whatsoever. Whenever he said anything to me he would, he would, when he was talking to me, he would be looking away and then would look back at me when he was finished, not when he was talking to me at all.
. . . .
A. In our training, often times when people have to think about what they say, they work from one side of the brain to the other. When you think you look that way. It is an involuntary action. It is very hard to think and talk to someone at the same time or keep eye contact. There is [sic] many different expressions or things that you do when you are nervous, somewhat like I am right now. You talk real fast. That's a sign of, could be a sign of deception when you look away, excessive blinking, things like that are all signs of possible deception.
Later, Deputy Humphreys testified about the second interview with Mr. Nelson:
A. When I was talking with him, he again, really wasn't looking at me.
Back to the thing with the eyes wandering. Whenever he told me any of these instances, he would look away when talking to me. But however, when he finished he would look at me as if trying to get my approval. . . .
Mr. Nelson was convicted of one count each of first degree child molestation and first degree rape of a child. He appeals.
ANALYSIS
Lay opinion testimony is admissible if it is `(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.' ER 701.
A trial court's decision to admit or refuse lay opinion testimony is reviewed for abuse of discretion. State v. Ortiz, 119 Wn.2d 294, 308, 831 P.2d 1060 (1992).
Usually, a lay witness may relate only observations to the jury and let jurors form their own opinions and conclusions. `This is because a lay witness is in no better position to arrive at an opinion or conclusion from the facts known to a witness.' Ashley v. Hall, 138 Wn.2d 151, 156, 978 P.2d 1055 (1999) (citing 5A Karl B. Tegland, Washington Practice, Evidence Law and Practice, ch. 7 § 282, at 348-49 (3d ed. 1989)). `To this end, admission of lay opinion testimony should be excluded where the sort of opinion expressed calls for that of an expert.' Ashley, 138 Wn.2d at 156 (citing 5A tegland, supra at 353-54).
`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. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Such an opinion violates the defendant's right to a trial by an impartial jury and his right to have the jury make an independent evaluation of the facts. State v. Carlin, 40 Wn. App. 698, 700-01, 700 P.2d 323 (1985). Testimony deemed to be an opinion as to a defendant's guilt must relate to the defendant. See Carlin, 40 Wn. App. 698 (officer's testimony that a police dog tracked the defendant by following a fresh `guilt scent' was inadmissible opinion testimony); State v. Haga, 8 Wn. App. 481, 490-92, 507 P.2d 159 (1973) (ambulance driver's testimony that defendant's reaction to news of his wife's death was unusually calm implied defendant's guilt).
In State v. Wilber, 55 Wn. App. 294, 777 P.2d 36 (1989), the State presented two officers who testified that they had received special training that enabled them to tell when a person was being truthful. The officers then gave opinions on whether a fact witness in the case was telling the truth. The court found that allowing their testimony was error because `[a]lthough the officers stated they had been trained to observe body and eye movements for evidence of falsification by a witness, they did not elaborate on the nature of this training or how the witnesses' movements demonstrated falsification.' Id. at 298-99. Significantly, the Wilber court also found that no evidence existed that the officers' opinion as to the significance of the witness's body language was based on a theory generally accepted by the scientific community. Id. at 299.
This case is similar to Wilber. Here, Deputy Humphreys offered a general description of Mr. Nelson's body language and physical movements as he was denying the allegations. However, the deputy then testified to conclusions from this behavior, based on his `training.'
The deputy's testimony poses several problems. First, as in Wilber, the deputy failed to disclose the source or nature of his training. Nor was the court provided with a description of the extent of the deputy's training. Thus, it is impossible to discern if this training was based on a theory generally accepted by the scientific community.
An additional problem with the deputy's testimony is that it constitutes a comment on Mr. Nelson's guilt. The deputy reported that during the interview in which Mr. Nelson denied the allegations of sexual abuse, Mr. Nelson refused to look at him. The deputy then testified that this behavior could be indicative of deception. As such, Deputy Humphreys was in essence telling the jury that Mr. Nelson was not telling the truth in the interview. In other words, Mr. Nelson was lying when he denied the abuse allegations and when he gave his version of the events. If the deputy had confined his testimony to the facts — that Mr. Nelson did not make eye contact with him during the interview — the present problem would have been avoided. However, because the deputy, a lay witness, then attempted to draw conclusions from this behavior, he violated Mr. Nelson's right to a fair trial. Where an improper opinion is expressed by a police officer, the opinion may influence the factfinder and thereby deny the defendant a fair and impartial trial. Carlin, 40 Wn. App. at 703.
The State contends that if the trial court erred in admitting the testimony, that error was harmless. The Supreme Court employs two tests to determine if the error was harmless. Under the `contribution' test, the court examines whether the tainted evidence contributed to the finding of guilt. Under the `overwhelming evidence' test, the court examines whether the untainted evidence is so overwhelming that it leads necessarily to a finding of guilt. Id.
Under the contribution test, the error in admitting the testimony does not appear harmless. In this case, it is likely that the tainted evidence — the officer's testimony that Mr. Nelson was lying when he denied the allegations — contributed to the guilty verdict. The court recognizes that the opinion of a government official, especially a police officer, may influence a jury. See Haga, 8 Wn. App. at 492 (sheriff's impression he thought defendant was guilty `undoubtedly' influenced jury in reaching guilty verdict). In this case, not only did Deputy Humphreys convey he thought Mr. Nelson was guilty, he also testified that he had `training' in the area of discerning when people are lying. Thus, his impressions of Mr. Nelson's guilt were given added credibility by his testimony about his training.
A similar result is reached under the `overwhelming evidence' test. Here, the two children testified that the abuse happened, and Mr. Nelson denied it. The State's medical expert, Suzanne Leonard, found no abnormalities on either child. In other words, Dr. Leonard found that both children appeared normal and neither showed evidence of physical abuse. No other witnesses to the abuse were offered. Given the lack of objective evidence that the abuse occurred, the case rested on witness credibility.
In determining the case, the jury had to decide who was telling the truth, the children or Mr. Nelson. Because the State did not have overwhelming evidence that Mr. Nelson committed these crimes, it cannot be concluded that the admission of Deputy Humphreys's testimony was harmless error.
Reversed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SCHULTHEIS, J., KATO, J.