State of Washington v. Daniel Herbert Dunbar ( 2019 )

FILED
MAY 7, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35350-8-III
Respondent, )
)
v. )
)
DANIEL HERBERT DUNBAR, ) UNPUBLISHED OPINION
)
Appellant. )
Siddoway, J. — Daniel Dunbar was charged in this case with forgery of a check
and the first degree theft of a travel trailer. He decided on the morning of trial to plead
guilty to the forgery, to prevent the jury deciding the theft charge from hearing about the
forgery. But the State argued strenuously and successfully that there remained a proper
purpose under ER 404(b) for admitting evidence of the forged check, which had been
found in the stolen travel trailer.
Evidence that a check payable to Mr. Dunbar was found in the trailer was relevant
and admissible. But there was no proper purpose under ER 404(b) for admitting
additional evidence establishing that the check was fraudulently issued. Because the
error was not harmless, we reverse and remand for a new trial. Issues of consecutive
sentencing and legal financial obligations will also need to be addressed in resentencing
Mr. Dunbar on the forgery count.
No. 35350-8-III
State v. Dunbar
FACTS AND PROCEDURAL BACKGROUND
On September 11, 2016, following up on a citizen’s tip, Sergeant Brian Eckersley
located a travel trailer that had been stolen from the driveway of a Spokane residence
sometime after the early morning of September 4, when the couple that owned it left for
vacation. He called Margaret Ferrell, who had reported the trailer missing, and asked her
to bring the keys to the residence on Sundown Drive in Spokane Valley, where he had
found it parked. When Ms. Ferrell and her husband arrived, the sergeant used their keys
to open the trailer, which was unoccupied but contained clothing and other items that
were not the Ferrells’. The Ferrells identified the contents that were not theirs. Among
items that did not belong to the Ferrells was what Sergeant Eckersley would describe in
his police report as an “obvious forged check” made out to Daniel H. Dunbar, whom the
sergeant already suspected of having resided in the stolen trailer. Clerk’s Papers (CP) at
2. After removing property that did not belong to the Ferrells, the sergeant allowed them
to leave with the trailer.
The next evening, Sergeant Eckersley visited Mr. Dunbar, who had been picked
up on warrants a couple of nights earlier and was being held in the Spokane County Jail.
After being read his Miranda1 rights, Mr. Dunbar agreed to speak. He acknowledged that
he and his girlfriend Brittany Snow had been staying in the trailer, which Sergeant
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2
No. 35350-8-III
State v. Dunbar
Eckersley says Mr. Dunbar claimed he rented on August 28. Mr. Dunbar said he rented it
for $315 a month from a man named Ocean who owned the Sundown Drive property. At
first he told Sergeant Eckersley that he had only driven the trailer away from the property
once, to a nearby dumping station. When told that someone saw him with the trailer on
September 5 on North Myrtle Street, however, he admitted stopping there to show the
trailer to his 10-year-old son. According to Sergeant Eckersley, Mr. Dunbar also
admitted telling his son that he had purchased the trailer. Mr. Dunbar denied having any
knowledge that the trailer had been recently stolen.
Asked about the check that the sergeant found in the trailer, Mr. Dunbar said it
was a paycheck. The check was drawn on the account of Grassroots Therapy Group
(Grassroots), and according to Sergeant Eckersley, Mr. Dunbar claimed to have worked
for Grassroots doing maintenance for a couple of months. Asked who he worked for, he
identified his boss as “AZ.” Report of Proceedings (RP) at 409.
On September 14, Sergeant Eckersley listened to Mr. Dunbar’s jail phone calls
from the prior day. Two calls made to Ms. Snow were of interest to the sergeant. In the
first, a morning call on September 13, Mr. Dunbar talked to Ms. Snow about her being
contacted by the police about the trailer and at one point said, “Good. That’s exactly
what you need to tell them”; later, he said, “[I]f [the] cops wouldn’t have come, it would
have been fine.” RP at 414. In a phone call to Ms. Snow that took place a little while
later, she was upset about the fact that she had no place to live and Mr. Dunbar
3
No. 35350-8-III
State v. Dunbar
responded, “I could take another trailer,” and laughed. RP at 414-15. Later in the
conversation, Mr. Dunbar and Ms. Snow talked about the check the sergeant had found in
the trailer.
Mr. Dunbar was charged with one count of first degree theft of the trailer and one
count of forgery, for the fraudulent check. On the first day of trial, Mr. Dunbar moved to
sever trial of the two counts. The motion was denied. Immediately upon the court’s
ruling, defense counsel notified the court that Mr. Dunbar wished to plead guilty to the
charge of forgery and proceed to trial on the first degree theft.
During a CrR 3.5 hearing that followed, Mr. Dunbar challenged the relevance of a
statement about the check that he contended bore only on the forgery charge. Defense
counsel argued:
I don’t deny that the check can be discussed in the context of there is a
check found in the trailer made out to Daniel Dunbar. But the underlying
issues around that check and its legitimacy are removed. I don’t think it’s
relevant . . . clearly any probative value is highly outweighed by its
prejudicial effect.
RP at 171. Defense counsel continued, “We have had concerns with [the fraudulent
check] from the beginning,” and characterized it as the reason Mr. Dunbar moved to
sever trial of the charges. Id. The court agreed, stating “I’m not comfortable yet making
a comprehensive order in limine, but my ruling at this time is that any relevance that the
check was forged is outweighed by the undue prejudice that it was forged.” RP at 175.
4
No. 35350-8-III
State v. Dunbar
After jury selection and before the State’s case-in-chief, the defense learned from
the prosecutor that the State still intended to call as a witness Lori Eastep, an owner of
Grassroots. Mr. Dunbar asked that the State be required to make an offer of proof of her
testimony, which he feared would be offered in “a veiled attempt to show the issue of the
check being forged.” RP at 315. In response, the State reminded the court that Mr.
Dunbar told people he was either renting or had purchased the trailer and had also told
Sergeant Eckersley that the Grassroots check was a paycheck. The prosecutor argued:
Ms. Eastep will testify . . . that at no point in time did Grassroots Therapy
Group ever employ Mr. Dunbar to do any maintenance work. He has never
worked for that company and that nobody who had the authority to issue
checks on that account had ever issued a check to Mr. Dunbar. In other
words, can’t make the argument that he had a job working maintenance for
Grassroots Therapy as a basis to say that he purchased or was renting the
trailer. That’s it. Nothing about forged. Just that they never sent, never
gave him a check.
RP at 317.
Mr. Dunbar replied that neither in his police report nor during the CrR 3.5 hearing
had Sergeant Eckersley ever said Mr. Dunbar attributed his ability to rent or purchase the
trailer to the check or the work he had done for Grassroots.2 Mr. Dunbar conceded the
2
The dissent mistakenly suggests that in speaking with the sergeant, Mr. Dunbar
stated or implied that his work for Grassroots enabled him to rent the trailer, so evidence
that the check was fraudulent was proper contradiction. But as Sergeant Eckersley
admitted at trial, the subject of how Mr. Dunbar and Ms. Snow were paying rent was not
volunteered or inquired into when he interviewed Mr. Dunbar. See RP at 424. Jurors
never even learned the amount of the Grassroots check.
5
No. 35350-8-III
State v. Dunbar
check was admissible dominion evidence. He said he would not object if the State
presented evidence that he had misrepresented to the sergeant that he had done work for
Grassroots, as long as the jury was not told that Grassroots was the drawer of the check.
But he argued that under ER 404(b), there was no legitimate purpose for offering the
“bad act” evidence that the check found in his possession had been fraudulently issued.
After lengthy argument, the trial court ruled that the “other purpose[ ]” under ER
404(b) for which it would admit Ms. Eastep’s testimony was that it “demonstrates that
[Mr. Dunbar] was not telling the truth to Sergeant Eckersley, at least as Sergeant
Eckersley describes what Mr. Dunbar said.” RP at 338.
Based on that ruling, the State addressed the fraudulently issued check in its
opening statement. The prosecutor told jurors that Sergeant Eckersley would testify to
finding a check in the stolen trailer that was payable to the defendant, that Mr. Dunbar
told the sergeant it was a payroll check for work he had done for Grassroots, and an
owner of Grassroots was expected to testify that “Mr. Dunbar had never been employed
by Grassroots Therapy to do maintenance work or never been employed by them at all
and that she had never even seen him before and that nobody with authorization to write
checks on the account had written a check to Mr. Dunbar or issued a check to Mr.
Dunbar.” RP at 355.
In the State’s case-in-chief, it called Ms. Ferrell, who testified that she and her
husband left town early on the morning of September 4, and she learned their travel
6
No. 35350-8-III
State v. Dunbar
trailer was missing in a phone call from her brother on the morning of September 10.
The State called Karen Thompson, who saw Mr. Dunbar with the trailer on Myrtle Street
on September 5 and was suspicious of both the car to which it was poorly hitched and the
location where it was parked. Pictures she took had assisted Sergeant Eckersley in
connecting the trailer to Mr. Dunbar.
The State called Sergeant Eckersley to testify to his investigation and statements
made by Mr. Dunbar. The State’s final witness was Ms. Eastep, who testified to the fact
that Grassroots did not hire maintenance workers and had never employed anyone named
Daniel Dunbar or anyone named AZ.
Mr. Dunbar testified in his own defense. In a brief direct examination, he said he
did not tell Sergeant Eckersley that he worked for Grassroots; he claimed he told the
sergeant that he worked for his friend, AZ, whom he identified as Azriah Hulsey. He
said his son misunderstood him if he believed he had purchased the trailer. He claimed
he gave Sergeant Eckersley as much information as he could about Ocean, but without
access to his phone, he could not provide contact information. Finally, he claimed that he
joked when speaking to his girlfriend that he would “take another trailer” because she
was upset and he hoped to make her laugh. In cross-examination, he testified that he had
rented the trailer at the Sundown Drive property on September 4 and never provided the
sergeant with an August 28 rental date.
7
No. 35350-8-III
State v. Dunbar
Neither lawyer objected during the other’s closing argument. The jury found Mr.
Dunbar guilty of first degree theft. Mr. Dunbar appeals.
ANALYSIS
Mr. Dunbar makes three assignments of error. He contends the trial court erred by
denying his objection to evidence that the check found in the travel trailer was
fraudulently issued, he raises prosecutorial misconduct challenges to the State’s closing
argument, and he argues that the consecutive sentencing of the forgery conviction is not
statutorily authorized. We address the issues in that order.
I. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO OFFER ER 404(b) EVIDENCE
Mr. Dunbar does not contend that the trial court erred in admitting evidence that a
Grassroots check made payable to Daniel H. Dunbar was found in the stolen trailer. At
issue is different evidence: the evidence from which the jury would reasonably infer that
the check was fraudulent. That evidence was Sergeant Eckersley’s testimony that Mr.
Dunbar said the check was a paycheck for maintenance work he performed for
Grassroots combined with Ms. Eastep’s testimony that Grassroots never hired Mr.
Dunbar. Mr. Dunbar made a clear and timely objection that this evidence of the
fraudulent character of the check was not admissible under ER 404.3
3
Mr. Dunbar also argues on appeal that the State was improperly relying on his
poverty as propensity evidence. See State v. Jones, 93 Wn. App. 166, 174, 968 P.2d 888(1998) (holding that financial status evidence is not per se inadmissible, but may be more
prejudicial than probative). He did not object on that basis in the trial court and we will
8
No. 35350-8-III
State v. Dunbar
Evidence of a person’s other bad acts is never admissible to prove the character of
a person to show that he acted in conformity with his character on a particular occasion.
State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). But evidence of a person’s
other acts may be admissible for other purposes, including to prove motive, opportunity,
or intent. The purpose must be of such significance to the current trial that the evidence
is highly probative and relevant to prove an “essential ingredient” of the current crime.
State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Evidence admissible under
ER 404(b) is substantive evidence. State v. Wilson, 60 Wn. App. 887, 891, 808 P.2d 754(1991).
To satisfy itself that evidence of prior misconduct is not being employed for the
purpose forbidden by ER 404(b), the trial court must, before admitting such evidence,
“(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify
the purpose for which the evidence is sought to be introduced, (3) determine whether the
evidence is relevant to prove an element of the crime charged, and (4) weigh the
probative value against the prejudicial effect.” State v. Yarbrough, 151 Wn. App. 66,
81-82, 210 P.3d 1029 (2009) (citing State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d
1159 (2002)). The trial court must conduct this analysis on the record. State v. Sublett,
156 Wn. App. 160, 195, 231 P.3d 231 (2010).
not entertain the argument for the first time on appeal. See RAP 2.5(a).
9
No. 35350-8-III
State v. Dunbar
The trial court found that the purpose for which the State sought to introduce
evidence that the check was not a bona fide paycheck was that it “demonstrates that [Mr.
Dunbar] was not telling the truth to Sergeant Eckersley, at least as Sergeant Eckersley
described what Mr. Dunbar said.” RP at 338. Where evidence of a person’s conduct is
being offered for the purpose of attacking his credibility, however, the applicable rule is
ER 608(b), not ER 404(b). ER 608(b) provides that specific instances of conduct may,
“in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired
into on cross examination.”
The different application of the rules was explained by this court in Wilson. In
that case, the defendant’s wife provided testimony supporting his defense that he had
never molested the wife’s younger sister. The court allowed the State to impeach the
wife by questioning her about having lied on a state financial assistance form. As Wilson
explains, none of the information on the state financial assistance form was at issue in the
sexual molestation prosecution, so the evidence of the wife’s prior misconduct was not
being offered as substantive evidence under ER 404(b). 60 Wn. App. at 891-92. It was
instead being offered for the limited purpose of impeachment, and its admissibility was
governed by ER 608(b). Id.Here, once Mr. Dunbar pleaded guilty to forgery, only the check’s presence in the
trailer was relevant. The fact that it was a fraudulent instrument was not at issue in
10
No. 35350-8-III
State v. Dunbar
prosecuting theft of the travel trailer. The court recognized that the State’s purpose for
offering it was to show Mr. Dunbar’s untruthfulness.
It was an abuse of discretion for the trial court to overrule Mr. Dunbar’s objection
and allow the State to offer the evidence as substantive evidence under ER 404(b). The
question remains whether the error was harmless. “In analyzing the erroneous admission
of evidence in violation of ER 404(b), we apply the nonconstitutional harmless error
standard.” State v. Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014). This
requires us to decide whether there is a reasonable probability that the outcome of the
trial would have been materially affected absent the error. Id.In applying ER 404, the trial court believed the State had a proper purpose for
offering evidence of Mr. Dunbar’s untruthfulness. That ruling strongly suggests that the
court would have allowed the State to attempt to impeach Mr. Dunbar with the same
information under ER 608(b). Importantly, however, evidence suggesting the check was
fraudulent could not have been offered through Sergeant Eckersley and Ms. Eastep.
ER 608(b) states clearly that the instances of conduct offered under the rule “may not be
proved by extrinsic evidence.” Instead, when Mr. Dunbar testified, the prosecutor would
have been able to ask him, e.g., whether the check in his possession was fraudulent. As
Professor Tegland explains:
[I]f the witness denies the specific misconduct or incident on cross-
examination, the inquiry is at an end. The cross-examiner must “take the
11
No. 35350-8-III
State v. Dunbar
answer” (though necessarily the first answer) of the witness and may not
call a second witness to contradict the first witness. . . .
. . . The rule is designed to prevent time-consuming litigation over
issues that are only collateral to the merits of the case.
5A KARL B. TEGLAND, WASHINGTON PRACTICE, EVIDENCE LAW AND PRACTICE §
608.11, at 447-48 (6th ed. 2016) (footnote omitted).
Mr. Dunbar claims he told Sergeant Eckersley he had done maintenance work for
AZ, not Grassroots, and claimed not to know that the check was a forgery. So his answer
to any question seeking to impeach him would presumably have been, “No,” ending the
inquiry.
Perhaps because the State expected to try the forgery and theft charges together, its
standalone evidence of theft of the travel trailer was not strong. Sergeant Eckersley had
not recorded his interview of Mr. Dunbar, so there was a dispute over whether Mr.
Dunbar made several incriminating statements or whether the sergeant misunderstood
him. The State had no witness or surveillance evidence tying Mr. Dunbar to the removal
of the travel trailer from the Ferrells’ driveway. It had no witness or surveillance
evidence establishing that it was Mr. Dunbar who first delivered the travel trailer to the
Sundown Drive address. It did not call the owner of the Sundown Drive property to
contradict Mr. Dunbar’s right to rent a trailer at the location or to dispute the existence of
Ocean. It did not have evidence that Mr. Dunbar and Ms. Snow had no assets with which
12
No. 35350-8-III
State v. Dunbar
to pay rent.4 As defense counsel argued in closing, the travel trailer was parked in plain
view and had not been repainted nor had its license plates been removed. Rather than
being sold or discarded, almost all of the Ferrells’ belongings (which Mr. Dunbar claimed
he understood were Ocean’s) were still in place.
The State argues that the strongest evidence against Mr. Dunbar was the telephone
recordings of the jailhouse calls, but even they were subject to alternative explanations
and characterizations. And because the State had not made the recordings available to
the defense by the time of trial, the court allowed the State to present only the
information about the calls included in Sergeant Eckersley’s police report.
We conclude that the error was not harmless, particularly given the cumulative
effect of some prosecutorial misconduct, which we turn to next.
II. PROSECUTORIAL MISCONDUCT
For the first time on appeal, Mr. Dunbar contends that two areas of the State’s
closing argument constituted prosecutorial misconduct. “Prosecutorial misconduct may
deprive a defendant of his constitutional right to a fair trial.” In re Pers. Restraint of
4
The State proved that Mr. Dunbar never worked for Grassroots and elicited his
testimony in cross-examination that Ms. Snow provided the cash to pay the first month’s
rent. On the issue of whether Mr. Dunbar or Ms. Snow had resources to pay $315 for the
first month’s rent, Sergeant Eckersley admitted when cross-examined that he didn’t know
if he asked Mr. Dunbar about employment apart from the maintenance work he had done
for Grassroots or AZ, and didn’t know if Mr. Dunbar was receiving unemployment
compensation, social security disability, or other public assistance. Asked if Ms. Snow
had a job, the sergeant testified that he didn’t think so, but he didn’t know.
13
No. 35350-8-III
State v. Dunbar
Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). To prevail on a claim of
prosecutorial misconduct, Mr. Dunbar must first show that the prosecutor’s statements
were both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653(2012). Once a defendant establishes that the statements were improper, prejudice is
determined under one of two standards; where, as here, the defendant did not object at
trial, the defendant is deemed to have waived any error unless the prosecutor’s
misconduct was so flagrant and ill intentioned that an instruction could not have cured the
resulting prejudice. Id. at 760-61.
Presumption of innocence / burden of proof. Mr. Dunlap first argues that the
prosecutor committed misconduct by arguing in closing that there were limits to the
presumption of innocence. The issue arose because of the nature of evidence the State
relied on, given other evidence it lacked. Because it had little evidence contradicting Mr.
Dunbar’s version of events, the prosecutor asked jurors in his initial closing argument to
exercise their common sense in assessing the plausibility of Mr. Dunbar’s claim that he
was renting the trailer for $315 a month from someone named Ocean whose last name
Mr. Dunbar could not recall.
In response, the defense argued in part:
The instructions that you have been read remind you that Mr.
Dunbar is presumed innocent and that he bears no burden. . . . [The
prosecutor], in his cross-examination of Mr. Dunbar, asked him extensively
about why didn’t Mr. Dunbar provide the contact information for the
homeowner; why didn’t he give him the full name or the contact
14
No. 35350-8-III
State v. Dunbar
information for this person who had written him a check. But that’s all an
attempt by the State to shift the burden on Mr. Dunbar. Why didn’t he
prove his innocence to the detective or the sergeant? Because he doesn’t
have to. He didn’t have to that day and he didn’t have to today.
RP at 600.
It is the following rebuttal argument by the prosecutor that Mr. Dunbar argues
constituted misconduct:
The presumption of innocence attaches when somebody is formally
charged. You can be arrested, but unless you are charged, there is no
presumption of innocence. So at the time when Sergeant Eckersley is
speaking and interviewing Mr. Dunbar, there is no presumption of
innocence attached to that. It attaches as soon as the Information is filed
charging somebody for the crime. That’s where it attaches.
So to claim that somehow the presumption of innocence attached
to Mr. Dunbar as he’s sitting in that interview with Sergeant Eckersley, it
might as well be a disco ball dropping down.
RP at 603-04.
The State concedes on appeal that this argument was “perhaps confusing or
inarticulate,” but contends it was a “fair response” to the defendant’s argument. Br. of
Resp’t at 26-27. We disagree. Defense counsel’s argument was proper. But the
prosecutor’s argument could lead jurors to believe that Mr. Dunbar was not required to
prove his innocence at trial, but had a duty to provide exculpatory information when he
was questioned by Sergeant Eckersley.
Nonetheless, while the State’s argument was improper, it could have been
addressed by a timely objection and curative instruction by the court.
15
No. 35350-8-III
State v. Dunbar
Personal beliefs and opinions about truthfulness and motive. Mr. Dunbar next
argues that the prosecutor improperly conveyed his opinion that Mr. Dunbar was not
telling the truth. “[A] prosecutor may not properly express an independent, personal
opinion as to the defendant’s guilt.” State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221(2006). On the other hand, when a prosecutor shows that other evidence contradicts a
defendant’s testimony, the prosecutor may argue that the defendant is lying. Id. at 59.
Mr. Dunbar argues the prosecutor committed misconduct in the following argument in
his initial closing:
And as Sergeant Eckersley says, “Well, what about this?” Mr. Dunbar
comes up with something else. Comes up with something else, comes up
with something else. And as the circle starts to close on Mr. Dunbar
because he’s not telling—he is not telling the detective what actually
happened.
RP at 588-89 (emphasis added).5
As earlier observed, when it came to facts material to the charge of first degree
theft, the State had little contradictory evidence. In context, then, the prosecutor’s
5
Mr. Dunbar contends the argument was especially egregious because the
prosecutor had been earlier cautioned by the trial court to “please . . . not even go close to
the line of ultimate opinion about either guilt or credibility.” RP at 469. This happened
after the prosecutor questioned Sergeant Eckersley about Mr. Dunbar’s demeanor during
questioning and, after the sergeant described it, asked the further question, “How did you
interpret that?” The sergeant answered, “A sign of guilt.” RP at 437.
An objection to the answer was sustained and the trial court granted a request to
strike it. It denied a motion for a mistrial, and then cautioned the prosecutor against
expressing opinions on guilt or credibility.
16
No. 35350-8-III
State v. Dunbar
argument that Mr. Dunbar “was not telling the detective what actually happened” appears
based on the implausibility of Mr. Dunbar’s statements rather than any contradictory
evidence. In arguing the implausibility, however, the prosecutor repeatedly told jurors to
“use your individual collective common sense”; he did not couch his argument in terms
of what he personally believed. RP at 579. In context, we do not find the prosecutor’s
argument to be misconduct, and any improper implication could have been cured had an
objection been made.
More problematic are the prosecutor’s arguments that Sergeant Eckersley had no
motive but to tell the truth and it would be a crime for him to wrongly cause Mr. Dunbar
to be charged. A prosecutor “may not vouch for a government witness’s credibility.”
State v. Embry, 171 Wn. App. 714, 752, 287 P.3d 648 (2012). And “[i]t is . . .
impermissible for a prosecutor to ask a jury to consider whether law enforcement agents
would risk their careers to commit perjury.” 6 WAYNE R. LAFAVE, JEROLD H. ISRAEL,
NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE § 24.7(e), at 602 & n.67 (4th ed.
2015) (citing cases).
The United States Seventh Circuit Court of Appeals remanded a case for fact-
finding when defense counsel failed to object to the following closing argument by a
prosecutor in Jordan v. Hepp, which the appellate court characterized as “a textbook case
of improper vouching:”
In Jordan’s case, the prosecutor had this to say during his closing argument:
17
No. 35350-8-III
State v. Dunbar
Now, the big question here is the credibility. Who do you believe?
. . . Somebody’s lying. Who is it? [The detective’s] going to put
her whole career and her future on the line for this case? She does
this everyday. She’s investigating homicide cases everyday for
years. Who has the most to lose based on your verdict in this case?
Her or him? . . . It boils down to credibility.
The prosecutor then repeated, “[w]ho has the most to lose here? Her or
him? Keep that in mind when you evaluate his testimony.”
831 F.3d 837, 847 (7th Cir. 2016) (alterations in original). The appellate court remanded
for a trial court determination whether defense counsel’s failure to object might have
been strategic. It did not hesitate in finding prejudice. It cited the United States Supreme
Court for the proposition that “when a prosecutor improperly vouches for a witness’s
credibility, and the case is not otherwise a strong one, ‘[p]rejudice to the cause of the
accused is so highly probable that we are not justified in assuming its nonexistence.’” Id.
at 848 (quoting Berger v. United States, 295 U.S. 78, 89, 55 S. Ct. 629, 79 L. Ed. 1314(1935)).
Here, in rebuttal, the prosecutor’s argument was indistinguishable from that of the
prosecutor in Jordan:
Who has any motivation in this matter? Sergeant Eckersley has no
motivation in the matter. Sergeant Eckersley is simply an investigator who
reported what he found, testified to it, and he recorded it in a report that
was filed within days of the contact with Mr. Dunbar.
RP at 601-02. Strengthening his argument that jurors should believe the sergeant, the
prosecutor added, “[T]here is no motive on the part of Sergeant Eckersley or the State to
18
No. 35350-8-III
State v. Dunbar
falsely accuse Mr. Dunbar of a crime. That’s called malicious prosecution. That itself is
a crime.” RP at 602 (emphasis added).
The prosecutor’s statements were improper. We need not decide whether the
misconduct was so flagrant and ill intentioned that an instruction could not have cured the
resulting prejudice because we are satisfied that in combination with the trial court’s error
in admitting the fraudulent character of the check, a new trial of the theft charge is
required. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).
III. RESENTENCING IS REQUIRED, GIVEN AN INADEQUATELY SUPPORTED CONSECUTIVE
SENTENCE
The trial court had presided over another criminal case involving Mr. Dunbar,
cause no. 16-1-04019-2. It sentenced him in both cases on the same day. In imposing
sentence, it ran the 22-month forgery sentence imposed in this case consecutive to the
sentences imposed in cause no. 16-1-04019-2, indicating that it was doing so under RCW
9.94A.589(3). That statute does not apply to sentences that are imposed on the same day.
A different provision, RCW 9.94A.589(1)(a), authorized the trial court to order the
consecutive sentencing, but only under the exceptional sentence provisions of RCW
9.94A.535. Mr. Dunbar entered the sentencing hearing with an offender score of 12
points, and the State had asked the court to impose exceptional consecutive sentences
under the “free crimes” aggravator provided by RCW 9.94A.535(2)(c).
19
No. 35350-8-III
State v. Dunbar
RCW 9.94A.535 provides that in imposing an exceptional sentence, “the court
shall set forth the reasons for its decision in written findings of fact and conclusions of
law.” The trial court did not enter findings and conclusions supporting exceptional
sentencing. The entry of written findings has been held to be “essential.” State v.
Friedlund, 182 Wn.2d 388, 393, 341 P.3d 280 (2015).
If the trial court intended to impose an exceptional sentence, entry of supporting
findings is required. If it did not, then the forgery sentence must run concurrent to the
other sentences imposed on the same day.
IV. RELIEF FROM LFOS
Finally, Mr. Dunbar has moved this court to direct the trial court to strike its
imposition of the $200 criminal filing fee and the $100 DNA6 collection fee. Because
this matter was on direct review at the time legislative changes to the application of those
fees became effective in June 2018, the changes apply. State v. Ramirez, 191 Wn.2d 732,
749, 426 P.3d 714 (2018).
The record reveals that Mr. Dunbar was found indigent by the trial court at the
time of sentencing, so he is entitled to relief from the $200 criminal filing fee. RCW
36.18.020(2)(h). In light of his criminal history, it is likely his DNA has previously been
collected, in which case he is entitled to relief from the DNA collection fee. RCW
6
Deoxyribonucleic acid.
20
No. 35350-8-III
State v. Dunbar
43 .43. 7 541. Upon resentencing, the court shall strike the criminal filing fee and shall
strike the DNA collection fee unless the State demonstrates that Mr. Dunbar's DNA has
not previously been collected.
We reverse the conviction for first degree theft and remand for retrial of that
charge and resentencing.
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.
I CONCUR:
Lawrence-Berrey, C.J.
21
No. 35350-8-111
KORSMO, J. ( dissenting) - The story behind the forged check was highly relevant
and added little to the overall prejudice of the evidence against Mr. Dunbar.
Accordingly, I do not see that the trial court abused its discretion in admitting the
evidence under limiting rules that prohibited proof that Mr. Dunbar himself had forged
the check.
Mr. Dunbar concedes that the check was admissible to help establish his dominion
and control over the stolen trailer. Thus, the relevance of the evidence is clear. It, and
any other items "belonging" to Mr. Dunbar, helped show that he controlled the stolen
trailer. 1 The more important piece of the puzzle, however, was that he told a lie about the
check while also lying about renting the trailer.
During the same jail conversation in which he told Sergeant Eckersley that he and
his girlfriend were renting the trailer, he described the check as a paycheck for work he
had done for Grassroots Therapy Group. The two lies were part and parcel of the same
story and both were fair game for the prosecutor to go after. This was basic impeachment
1
The paycheck also supported Mr. Dunbar's claim that he was merely renting the
trailer by suggesting that he was employed and capable of paying rent. The State
necessarily would want to counter that erroneous impression by showing that the check
was not evidence of employment.
No. 35350-8-111
State v. Dunbar-Dissent
by contradiction and it served to disprove Mr. Dunbar's initial defense. He lied about
working for Grassroots Therapy Group and receiving pay from them. The company
came in and disputed his statements. All was proper. There was no mention about the
forged check, nor was there any indication who might have prepared it. The trial judge
limited the evidence to its essential points while still allowing the prosecutor to contest a
false tale.
Similar practice has been permitted over the years on evidence far less germane
than this one. When someone "puts his prior conduct into issue by testifying as to his
own past good behavior, he may be cross-examined as to specific acts of misconduct
unrelated to the crime charged." State v. Emmanuel, 42 Wn.2d 1, 14, 253 P.2d 386(1953) (emphasis added); accord, State v. Swan, 114 Wn.2d 613, 653-654, 790 P.2d 610(1990); State v. Renneberg, 83 Wn.2d 735, 738, 522 P.2d 835 (1974); State v. Gefeller,
76 Wn.2d 449, 455, 458 P.2d 17 (1969), overruled on other grounds by State v. Hill, 123
Wn.2d 641, 870 P .2d 313 ( 1994 ). This case is even closer because the misconduct was in
fact related to the crime. 2
2
This was not a situation where the defendant was being impeached on a collateral
matter. "It is a well recognized and firmly established rule in this jurisdiction, and
elsewhere, that a witness cannot be impeached upon matters collateral to the principal
issues being tried." State v. Oswalt, 62 Wn.2d 118, 120-121, 3 81 P .2d 617 (1963) (citing
numerous cases).
2
No. 35350-8-III
State v. Dunbar-Dissent
Mr. Dunbar should not be allowed to provide a story explaining his allegedly
lawful occupancy of the trailer without fear of his lie being contradicted. Knowing what
the defense theory of the case was, the prosecutor understandably worked to undercut it
while also proving his own case. The critical evidence here was not who uttered the
forged check, an issue that was never mentioned before the jury, but whether Mr.
Dunbar's false claim of employment, supported by the check, could be countered by his
putative employer. The trial judge understandably decided this was proper.
Since the trial court had very tenable grounds for admitting the evidence, there
simply was no abuse of discretion. I respectfully dissent.
3