Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       NO. 65426-8-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
       v.                                   )       UNPUBLISHED OPINION
                                            )
GAMADA ABDULLAHI,                           )
                                            )
                      Appellant.            )       FILED:  March 5, 2012
                                            )

       Leach, J.  --       Gamada Abdullahi        appeals convictions for promoting 

commercial sexual abuse of a minor and conspiracy to promote prostitution in 

the first degree.  He contends that the State's evidence that he was a gang 

member  was insufficient to prove conspiracy, that the State failed to present 

evidence that he conspired individually or collectively with 6 of 16 coconspirators 

named in the to-convict instruction, and that the  admission of a detective's 

opinion testimony identifying Abdullahi as a gang member violated his right to a 

jury trial. Because sufficient non-gang-related evidence supports the conspiracy 

conviction, conspiracy is not an alternative means crime, and Abdullahi has not 

preserved the opinion evidence issue for appeal, we affirm.

                                        FACTS

       In the summer of 2007, 15-year-old H.R. moved from her mother's home  

NO. 65426-8-I / 2

in Las Vegas, Nevada, to Washington state to live with her father.  H.R. enrolled 

at West Seattle High School.  There, she met an individual named Worio, who 

told H.R. that he was a pimp.  One night, Worio introduced H.R. to his brother, 

Gamada Abdullahi.  Abdullahi, whom H.R. also knew as "G-Bezz," told H.R. that 

she could earn $1,000 by having dinner with another man.  Later that night, H.R.

sneaked out of her father's house to meet Abdullahi at a bus stop.  Instead of 

taking her to have dinner, however, Abdullahi drove H.R. to Pacific Highway, or 

"the track," to work as a prostitute.  Abdullahi taught H.R. how to walk "the track,"

how to solicit clients, and what prices to charge for different sexual acts.  H.R. 

performed sexual acts with at least three individuals in exchange for money that 

night.  She gave the money she earned to Abdullahi.

       From  late September      until the beginning of November, H.R. worked 

intermittently as Abdullahi's prostitute.  During that time, H.R. did not live at 

home, and neither her father nor her mother knew her whereabouts.  In early 

November, H.R. unexpectedly arrived at her mother's house in Nevada and did 

not thereafter return to Washington.

       In November 2008, Detective Todd Novisedlak of the Seattle police vice 

unit began investigating members of a West Seattle gang called the Westside 

Street Mobb.  Detective Novisedlak believed that the Westside Street Mobb was 

involved in promoting prostitution.  The investigation focused in part on 

                                           -2- 

NO. 65426-8-I / 3

DeShawn Cash Money Clark and T.G., a young woman who prostituted for him.

After T.G.'s arrest for soliciting an undercover officer, she became an informant 

for the police.  She identified members of the Westside Street Mobb and other 

women who worked for them, including Abdullahi and H.R.  

       Detective Novisedlak traveled to Las Vegas and interviewed H.R. She 

corroborated the information that T.G. provided the police.  Based upon the fruits 

of the Seattle  police investigation, the State charged Clark, Mycah Johnson, 

Shawn Clark, Thomas Foster, Gerald Jackson, and Desmond Manago.  All but 

Clark pleaded guilty to the various charges against them.  

       H.R. testified for the State at Clark's trial.  After hearing H.R.'s testimony, 

the State charged Abdullahi with promoting commercial sexual abuse of a minor.  

The State amended the information twice, first to add Westside Street Mobb 

member Donta Walters as a codefendant and second to include a charge of 

conspiracy to promote prostitution against both Abdullahi and Walters.  Because 

the charging information was not specific, Walters's counsel moved for a bill of 

particulars  identifying all alleged coconspirators.  The trial court granted 

counsel's motion, and before trial, the State filed with the court a "Response to 

Court's Order for List of Co-Conspirators."1

       Also pretrial, both defendants moved to exclude evidence about  their 

       1 The document listed 14        individuals, including the defendants,        and 
"others unknown."
                                           -3- 

NO. 65426-8-I / 4

affiliation with the Westside Street Mobb.  After a CrR 3.5 hearing, the trial court 

ruled that the gang evidence was admissible under ER 404(b):

       [T]here's no question the gang affiliation is prejudicial, and it's only 
       admissible upon a showing of a nexus between the gang activities 
       and the charged crimes.  I think the evidence establishes that there 
       is a connection between the gang's purpose and values and the 
       offenses committed, and that is the, what you might call the 404(b) 
       hook by which the gang evidence is admissible against each 
       Defendant.  

However, the trial court limited testimony regarding the gang's criminal activities 

to its "alleged pimping behavior."  

       At trial, the State presented  extensive expert testimony from Detective 

Joseph  Gagliardi    of the  King County Sheriff's  Office gang unit.  Detective 

Gagliardi provided general testimony about criminal street gangs and the means 

used by the county to identify a gang and its members.  Detective Gagliardi 

identified two types of gangs -- turf gangs and for-profit gangs -- and explained 

that a for-profit gang is "a gang whose primary motivating factor is not the 

claiming of territory, but simply making money.  Their entire goal is to make more 

money for the members or for the gang or for both."  

       Detective Gagliardi testified that the Westside Street Mobb was a for-

profit gang and that promoting prostitution was one of the gang's primary 

activities.  He explained that he had identified the Westside Street Mobb as a 

                                           -4- 

NO. 65426-8-I / 5

gang by applying the factors set forth in the criminal code.2      Detective Gagliardi 

testified that the  Westside Street Mobb formed in West Seattle's Delridge 

neighborhood in mid-2006.  He explained that members of the Westside Street 

Mobb wear red and black, throw the "W" and "M" hand signs, and typically sport 

a leprechaun tattoo.  He also applied the 13 factors used by the King County 

Sheriff's Office to determine whether an individual is affiliated with a particular 

gang to explain to the jury his opinion that Abdullahi was a member of the 

Westside Street Mobb.  On cross-examination, however, Detective Gagliardi 

admitted that Abdullahi failed to meet the first three, most important criteria for 

determining gang affiliation -- that the individual admits gang membership or 

affiliation, has gang-related tattoos, and possesses gang paraphernalia or 

documentation.3  

       2 RCW 9.94A.030(12) defines "criminal street gang" as
         "any ongoing organization, association, or group of three or more 
         persons, whether formal or informal, having a common name or common 
         identifying sign or symbol, having as one of its primary activities the 
         commission of criminal acts, and whose members or associates 
         individually or collectively engage in or have engaged in a pattern of 
         criminal street gang activity."  
       3 The remaining 10 factors are:  the individual (1) wears gang-related 
clothing or jewelry, (2) uses a gang-related moniker, (3) has been identified as 
an individual affiliated with a criminal street gang based upon reliable 
information, (4) appears in photographs with other gang members, (5) uses gang-
related hand signs or verbiage, (6) associates with other known gang members, 
(7) is involved in gang-related crimes or activities, (8) is identified as a gang 
member by another gang member, (9)  whose  name appears on a gang 
document or in gang graffiti, and (10) targets victims or property from a rival 
gang or crosses out rival gang graffiti.  
                                           -5- 

NO. 65426-8-I / 6

       H.R. testified to the above facts regarding her relationship with Abdullahi.  

When the State asked H.R. whether she had heard of the Westside Street 

Mobb, she said, "I've heard about it.  It's like a name that was in the air, but it 

wasn't -- like I was never talked to about it or anything."      H.R. further testified that 

Abdullahi never told her he was a member of the Westside Street Mobb.

       T.G. also testified for the State.  T.G. told the jury that she had worked as 

a prostitute for Clark.  When asked how she knew Abdullahi, T.G. said, "Being a 

pimp from Street Mobb.  Cash -- Cash's friend."         Both T.G. and H.R. testified that 

they had once shared a motel room with Clark and Abdullahi so that H.R. could 

train T.G. how to work as a prostitute.

       Other State witnesses testified about Abdullahi's gang affiliation.  

Westside Street Mobb member Mycah Johnson identified Abdullahi as a 

Westside Street Mobb member and said he had seen Abdullahi in gang 

meetings.  When asked if he had been aware that Abdullahi "pimped out girls,"

however, Johnson stated that he was unaware of Abdullahi's involvement in 

prostitution.  Similarly, F.S., who had worked as Walters's prostitute, identified 

Abdullahi as a Westside Street Mobb member but said that he was not a pimp.  

R.G., another young prostitute connected to the Westside Street Mobb, testified 

that she knew Abdullahi was acquainted with Westside Street Mobb members 

but did not know whether Abdullahi himself was involved in the gang.

                                           -6- 

NO. 65426-8-I / 7

       Testifying in his defense, Walters said that to his knowledge, Abdullahi 

was not a pimp.  The State asked Walters about Abdullahi's affiliation with the 

Westside Street Mobb, inquiring, "This guy right here in Court with you, he's a 

member of Street Mobb, isn't he?"      Walters replied, "No," elaborating, "I've been 

knowing him almost my whole life.  He's not from Street Mobb."

       The trial court instructed the jury that it could convict Abdullahi of 

conspiracy if it found that he agreed with any one of 16 named individuals and/or 

with  "unknown persons to engage in or cause the performance of conduct 

constituting the crime of Promoting Prostitution in the First Degree."4

       During closing argument, the State asserted that the general evidence 

regarding Abdullahi's affiliation with the Westside Street Mobb as well as his 

specific involvement with Clark proved the conspiracy charge against him:

              The conspiracy charge that the Defendants face, why are 
       there so many people named in that?  Because that's Street Mobb.  
       And what you need to do is you look in there on that charge and 
       whether we've proved it.  Did Gamada Abdullahi conspire with one 
       of the members of Street Mobb to promote prostitution?  Well, he 
       did with Cash Money Clark when he's sharing that room with [T.G.] 
       and [H.R.].  And Cash and Mr. Abdullahi are telling the girls where 
       to go, using the phones together.  That is assistance.  That is 

       4 The 16 individuals were "validated" Westside Street Mobb members: 
DeShawn Cash Money Clark, Mycah Johnson, Roosevelt Johnson, Thomas 
Mario Foster, Shawn Clark, Gerald Jackson, Jeffrey Knox, Tyrone Bellinger, 
Brandon Shell, Michael Flowers, Devontea Rosemon, Henok Gabrimichael, 
Derrick Wroten-Prentice, Elijah Cain, Donta Walters, and Ramadhmi Hamisi 
Rashid.  
                                           -7- 

NO. 65426-8-I / 8

       promoting prostitution in the first degree and . . . the agreement to 
       do that, because they are members of the same gang, because . . . 
       its focus is promoting prostitution, that agreement is what we 
       punish.  That is conspiracy.

       A jury convicted Abdullahi as charged.  Abdullahi appealed and filed a 

personal restraint petition, which this court stayed pending a final decision in his 

direct appeal.5

                              STANDARD OF REVIEW

       When we review the sufficiency of the evidence, we decide whether any 

rational trier of fact could have found the essential elements of the crime beyond 

a reasonable doubt, viewing the evidence in the light most favorable to the 

State.6 By challenging the sufficiency of the evidence, the defendant admits the 

truth of the State's evidence and all reasonable inferences drawn from it.7  

       We review de novo an issue raised by a party for the first time on appeal 

as a manifest error affecting a constitutional right.8

                                      ANALYSIS

Sufficiency of the Evidence

       Abdullahi contends the State presented insufficient evidence to prove 

conspiracy.  To convict a defendant of conspiracy to promote prostitution, the 

       5  This court denied Abdullahi's motion to consolidate the personal 
restraint petition with the direct appeal.
       6 State v. Lord, 117 Wn.2d 829, 881, 822 P.2d 177 (1991). 
       7 State v. Pedro, 148 Wn. App. 932, 951, 201 P.3d 398 (2009), review 
denied, 169 Wn.2d 1007, 236 P.3d 206 (2010).
       8 State v. Stanley, 120 Wn. App. 312, 314, 85 P.3d 395 (2004).
                                           -8- 

NO. 65426-8-I / 9

State must prove that (1) the defendant agreed with at least one other person to 

engage in conduct constituting the crime of promoting prostitution, (2) the 

defendant entered into the agreement with the intent that the conduct occur, and 

(3) any one of the persons involved took a substantial step in pursuance of the 

agreement.9   A substantial step is conduct that strongly indicates a criminal 

purpose.10   The State bears the burden of proving each element of the crime 

beyond a reasonable doubt.11

       The existence of a conspiracy may be proved  "'by showing the 

declarations, acts and conduct of the conspirators.'"12  Conspiracy may also be 

inferred from circumstantial evidence.13   The State need not establish that a 

formal agreement existed between the alleged coconspirators.14            Rather, "[t]he 

agreement may be shown by a 'concert of action, all the parties working together 

understandingly, with a single design for the accomplishment of a common 

       9 "A person is guilty of criminal conspiracy when, with intent that conduct 
       constituting a crime be performed, he or she agrees with one or more 
       persons to engage in or cause the performance of such conduct, and any 
       one of them takes a substantial step in pursuance of such agreement."  
RCW 9A.28.040.  "A person is guilty of promoting prostitution in the first degree 
if he or she knowingly advances prostitution by compelling a person by threat or 
force to engage in prostitution or profits from prostitution which results from such 
threat or force." RCW 9A.88.070(1).  
       10 State v. Dent, 67 Wn. App. 656, 660, 840 P.2d 202 (1992).
       11 State v. Aver, 109 Wn.2d 303, 310, 745 P.2d 479 (1987).
       12 State v. Barnes, 85 Wn. App. 638, 664, 932 P.2d 669 (1997) (quoting 
State v. McGonigle, 144 Wash. 252, 260, 258 P. 16 (1927)).
       13 Barnes, 85 Wn. App. at 664.
       14 Barnes, 85 Wn. App. at 664.
                                           -9- 

NO. 65426-8-I / 10

purpose.'"15  Once the State establishes the existence of a conspiracy, evidence 

connecting the defendant to the conspiracy, however slight, is sufficient to 

convict the defendant of knowing participation in the conspiracy.16

       Abdullahi    asserts   that  his   conspiracy    conviction is impermissibly 

predicated solely on the fact of his gang affiliation.    He cites Ninth Circuit case 

law  holding  evidence of gang membership alone is  insufficient to support a 

conviction for conspiracy and other similar crimes.17   We do not decide the 

sufficiency of the gang evidence to support a conspiracy conviction because the 

State presented sufficient non-gang-related evidence  to sustain the verdict.  

       Apart from the gang evidence presented at Abdullahi's trial, the State's 

evidence included testimony that Clark and Abdullahi worked out of the same 

motel room for 11 days in October 2007.  Because T.G. had never engaged in 

prostitution, Abdullahi and Clark instructed H.R. to train T.G.  T.G. said, "When I 

met [H.R.], she already knew what she was doing. . . . [T]hat's why they brought 

me to her so she could show me what to do."  During that time, H.R. and T.G. 

       15 Barnes, 85 Wn. App. at 664 (internal quotation marks omitted) (quoting 
State v. Casarez-Gastelum, 48 Wn. App. 112, 116, 738 P.2d 303 (1987)).  
       16 State v. Brown, 45 Wn. App. 571, 579, 726 P.2d 60 (1986).
       17 Mitchell v. Prunty, 107 F.3d 1337, 1342 (9th Cir. 1997) ("Membership in 
a gang cannot serve as proof of intent, or of the facilitation, advice, aid, 
promotion, encouragement, or instigation needed to establish aiding and 
abetting."); United States v. Garcia, 151 F.3d 1243, 1246 (9th Cir. 1998) ("[In a 
prosecution for conspiracy to commit assault,] evidence of gang membership 
cannot itself prove that an individual has entered a criminal agreement to attack 
members of rival gangs.").
                                          -10- 

NO. 65426-8-I / 11

walked "the track" prostituting while Abdullahi and Clark stayed at the motel.  

Clark and Abdullahi instructed H.R. and T.G. when to leave and where to go.  

When they decided that it was time for H.R. and T.G. to return, Clark would call 

T.G.'s cell phone.  Upon returning to the motel, H.R. and T.G. gave Abdullahi 

and Clark the money they made prostituting.  T.G. paid for the motel room with 

money Clark gave her.

       This evidence shows strongly that Abdullahi and Clark entered into an 

agreement to engage in conduct constituting the crime of promoting prostitution, 

that they intended that prostitution occur because of the agreement, and that 

one or both of them took a substantial step in performance of the agreement.  

We disagree with Abdullahi that he and Clark engaged in separate criminal 

activities at the motel.  The efforts described above demonstrate a common 

purpose.  That purpose, at least in part, was for H.R. to train T.G. to prostitute 

and to make money from her work.   It is unlikely that this could have been 

accomplished without an agreement between Clark and Abdullahi.  Viewing the

evidence in the light most favorable to the State, a rational trier of fact could 

conclude that Abdullahi engaged in a conspiracy to promote prostitution.  Thus, 

sufficient evidence supports his conviction.  

       Abdullahi next contends that each of the possible coconspirators listed in 

the  to-convict instruction represented       an alternative means of committing 

                                          -11- 

NO. 65426-8-I / 12

conspiracy.  He argues the State did not present sufficient evidence to prove

each of these alternative means.  Because  conspiracy is not an alternative 

means crime, Abdullahi's claim is fundamentally flawed.

       An alternative means crime is one where the legislature has "'provide[d] 

that the proscribed criminal conduct may be proved in a variety of ways.'"18        The 

State need not elect a particular means of committing the crime, but a verdict will 

be set aside if one of the charged methods is not supported by substantial 

evidence.19  

       In  State v. Peterson,20    our Supreme Court discussed the difference 

between an alternative means criminal statute and a statute that establishes a 

single means to commit a crime.  There, Peterson challenged his failure to 

register conviction on the basis that the State had failed to prove each of the 

charged alternative means.  Peterson argued that failure to register could be 

accomplished  in three different ways -- (1) failing to register after becoming 

homeless, (2) failing to register after moving between fixed residences within a 

county, or (3) failing to register after moving from one county to another -- making 

it an alternative means crime.21     The court disagreed, contrasting the failure to 

       18 State v. Peterson, 168 Wn.2d 763, 769, 230 P.3d 588 (2010) (quoting 
State v. Smith, 159 Wn.2d 778, 784, 154 P.3d 873 (2007)).
       19 State v. Ortega-Martinez, 124 Wn.2d  702,           707-08, 881 P.2d 231 
(1994).
       20 168 Wn.2d 763, 770, 230 P.3d 588 (2010).
       21 Peterson, 168 Wn.2d at 769-70.
                                          -12- 

NO. 65426-8-I / 13

register statute with the theft statute, which establishes alternative means:

       The alternative means available to accomplish theft describe 
       distinct acts that amount to the same crime.  That is, one can 
       accomplish theft by wrongfully exerting control over someone's 
       property or by deceiving someone to give up their property.  In 
       each   alternative, the offender takes something that does not 
       belong to him, but his conduct varies significantly. In contrast, the 
       failure to register statute contemplates a single act that amounts to 
       failure to register:     the offender moves without alerting the 
       appropriate authority.  His conduct is the same -- he either moves 
       without notice or he does not.  The fact that different deadlines 
       may apply, depending on the offender's residential status, does not 
       change the nature of the criminal act:                  moving without 
       registering.[22]

Because "[t]here is only one method by which an offender fails to register,"23 the 

court rejected Peterson's challenge.

       Similarly, the conspiracy statute contemplates only a single method to 

commit conspiracy.  A person commits conspiracy when, with intent, he agrees 

with one or more individuals to cause a crime to occur.  The single act of an 

agreement is what the conspiracy statute punishes.  Therefore, the conspiracy 

statute does not describe distinct acts that amount to the same crime.  

       Abdullahi argues that conspiracy, as charged here, is an alternative 

means crime because jury instruction 20 allowed the jury to find Abdullahi guilty 

based upon any one of multiple possible agreements with various Westside 

       22 Peterson, 168 Wn.2d at 770.
       23 Peterson, 168 Wn.2d at 770.
                                          -13- 

NO. 65426-8-I / 14

Street Mobb members.24  To determine whether a crime is an alternative means 

crime, however, this court examines the criminal statute, not the trial court's jury 

instructions.25   A criminal conspiracy occurs when an            individual, with the 

necessary intent, agrees with "one or more persons" to engage in or cause 

criminal conduct. 26  As the Peterson court succinctly noted, "The mere use of a

disjunctive in a statute does not an alternative means crime make."27   The 

conduct of an individual who violates the conspiracy statute is the same 

regardless of the name of the other party to the prohibited agreement.  Because 

the proscribed conduct is the same in every instance, Abdullahi has not 

demonstrated that conspiracy is an alternative means crime.  His insufficiency 

claim fails.

Right to a Jury Trial

       Abdullahi contends that Detective Gagliardi's testimony identifying the 

Westside Street Mobb as a gang and Abdullahi as a member of that gang 

constituted an impermissible opinion on his guilt and therefore violated his 

       24 In  its brief, the State conceded that instruction 20 was improper 
because it contained three names of possible coconspirators not listed in the bill 
of particulars but argued the error was harmless beyond a reasonable doubt.  At 
oral argument, however, the State withdrew its concession of error based on its 
reading of Brown, 45 Wn. App. 571.  Because Abdullahi does not challenge the 
inclusion of the additional names in the instruction on appeal, we do not address 
whether the instruction was proper.
       25 See, e.g., Peterson, 168 Wn.2d at 769-70.
       26 RCW 9A.28.040.
       27 Peterson, 168 Wn.2d at 770.
                                          -14- 

NO. 65426-8-I / 15

constitutional right to a jury trial.      Because  Abdullahi      failed to object to 

Gagliardi's testimony on this basis below, he must demonstrate that the 

admission of this evidence was a manifest error affecting a constitutional right.28  

       RAP 2.5(a)(3) requires that a defendant  raising a constitutional error for 

the first time on appeal  show how the alleged error actually affected his rights at 

trial.29 This showing makes the error manifest, allowing appellate review.30        This 

court employs a two-part analysis to determine whether an asserted error is a 

manifest error affecting a constitutional right.31   First, we determine whether the 

error is truly constitutional, as opposed to another form of trial error.32     Second,

we decide whether the error is manifest.33  "Manifest" error requires a defendant 

to demonstrate actual prejudice.34     Actual prejudice arises if the asserted error 

had practical and identifiable consequences at trial.35   To decide the actual 

prejudice prong, we examine         the record to determine if it is sufficiently 

developed to decide the merits of the claim.36             "If the facts necessary to 

       28 RAP 2.5(a)(3).
       29 State v. Kirkman, 159 Wn.2d 918, 926-27, 155 P.3d 125 (2007).
       30 Kirkman, 159 Wn.2d at 927.
       31 See State v. Holzknecht, 157 Wn. App. 754, 760, 238 P.3d 1233 
(2010), review denied, 170 Wn.2d 1029, 249 P.3d 623 (2011).
       32 Holzknecht, 157 Wn. App. at 759-60.
       33 Holzknecht, 157 Wn. App. at 760.
       34 Holzknecht, 157 Wn. App. at 760.
       35 State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (quoting 
Kirkman, 159 Wn.2d at 935).
       36 O'Hara, 167 Wn.2d at 99.
                                          -15- 

NO. 65426-8-I / 16

adjudicate the claimed error are not in the record on appeal, no actual prejudice 

is shown and the error is not manifest."37   Also,  "[m]anifest errors affecting 

constitutional rights are subject to harmless error analysis."38       A constitutional 

error is harmless only if we are convinced beyond a reasonable doubt that any 

reasonable jury would have reached the same result in the absence of the 

error.39

       "Generally, no witness may offer testimony in the form of an opinion 

regarding the guilt or veracity of the defendant."40           "Impermissible opinion 

testimony regarding the defendant's guilt may be reversible error because such 

evidence violates the defendant's constitutional right to a jury trial, which 

includes the independent determination of the facts by the jury."41            Because 

Abdullahi asserts that the State elicited testimony from a witness improperly 

expressing an opinion on his guilt, he raises an alleged error of constitutional 

dimension.42   Therefore, we must next determine whether the alleged error was 

manifest.

       In this context, manifest error requires "an explicit or almost explicit 

witness statement on an ultimate issue of fact."43             Abdullahi argues that 

       37 State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
       38 Holzknecht, 157 Wn. App. at 760.
       39 Holzknecht, 157 Wn. App. at 760.
       40 State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). 
       41 Kirkman, 159 Wn.2d at 927.
       42 See Kirkman, 159 Wn.2d at 927.
                                          -16- 

NO. 65426-8-I / 17

Detective Gagliardi's testimony qualifies because "the State's theory was that 

Abdullahi was guilty of conspiracy because he was a member of a 'gang.'"  

While Detective Gagliardi identified Abdullahi as a member of the Westside 

Street Mobb, he did not testify that Abdullahi was guilty of conspiracy.  

Testimony that a defendant belongs to a particular gang does not usurp the 

jury's duty to determine whether that defendant had an agreement with another 

person to engage in specific criminal activity.44        Thus, Detective Gagliardi's 

statements were not explicit statements regarding Abdullahi's guilt.  Abdullahi 

fails to raise a manifest constitutional error that this court can review for the first 

time on appeal.

       Abdullahi asserts that only a jury may determine whether a gang exists 

and who is a member of that gang.  He cites the definitions of "criminal street 

gang," "criminal street gang associate or member," and  "criminal street gang-

related offense"45 in the Sentencing Reform Act of 1981, chapter 9.94A RCW. 

But these definitions apply to a special allegation that the State must prove to 

the jury beyond a reasonable doubt before a court may impose an exceptional 

sentence.46   Because the State did not allege the existence of an aggravating 

       43 Kirkman, 159 Wn.2d at 936.
       44 The jury received instructions on the elements of conspiracy.  We 
presume that the jury followed this instruction when determining whether 
Abdullahi was guilty.  See State v. Perez-Valdez, 172 Wn.2d 808, 818-19, 265 
P.3d 853 (2011).
       45 RCW 9.94A.030(12)-(14).
                                          -17- 

NO. 65426-8-I / 18

factor here, Abdullahi's argument fails.

       Abdullahi also quotes a substantial portion of a Second Circuit opinion, 

United States v. Mejia,47 where the court described concerns raised by gang 

expert testimony: 

       When the Government skips the intermediate steps and proceeds 
       directly from internal expertise to trial, and when those officer 
       experts come to court and simply disgorge their factual knowledge 
       to the jury, the experts are no longer aiding the jury in its fact
       finding; they are instructing the jury on the existence of the facts 
       needed to satisfy the elements of the charged offense.

This discussion occurred in the context of deciding whether the officer's expert 

testimony was proper under the Federal  Rules of Evidence and the Sixth 

Amendment confrontation clause.48  While Mejia presents an interesting legal 

issue, this case does not present it.  Therefore, Mejia is inapposite.  Abdullahi's 

claim fails.

                                    CONCLUSION

       Because sufficient non-gang-related evidence supports Abdullahi's

conspiracy conviction, conspiracy is not an alternative means crime, and the 

admission of the detective's       gang   testimony was not a manifest error of 

constitutional magnitude that Abdullahi may raise for the first time on appeal, we 

       46 See RCW 9.94A.829.
       47 545 F.3d 179, 191 (2d Cir. 2008).
       48 Mejia, 545 F.3d at 183.
                                          -18- 

NO. 65426-8-I / 19

affirm.

                                                    __________________________

WE CONCUR:

                                          -19-