State Of Washington v. Donald W. Bango ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 81045-6-I
)
Respondent, ) DIVISION ONE
)
v. ) UNPUBLISHED OPINION
)
DONALD WILLIAM BANGO, )
)
Appellant. )
)
HAZELRIGG, J. — Donald W. Bango seeks reversal of his convictions for
second degree murder, criminal impersonation, and tampering with a witness. He
argues that a juror was excluded in violation of Batson v. Kentucky,1 that the State
failed to prove that he had not acted in self-defense, and that the court erred in
giving an aggressor instruction, admitting his statements in violation of Miranda v.
Arizona,2 constraining his cross-examination of a witness, and violating the
prohibition against double jeopardy. In a pro se statement of additional grounds
for review, he alleges prosecutorial misconduct during the State’s closing
argument and ineffective assistance of counsel. We accept the State’s concession
that Bango’s conviction for felony murder should have been vacated and remand
for correction of that error. We otherwise affirm.
1 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
2 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 81045-6-I/2
FACTS
Background
On December 13, 2015, Donald Bango called Curtis Wikstrom to act as a
middleman in buying heroin from Jeffrey Shaw. Sometime after midnight, Bango
picked up Wikstrom in a rented black sport utility vehicle (SUV). Bango backed
the SUV into a space in the parking lot of an apartment building. Bango and
Wikstrom talked as they waited for Shaw to arrive, but Bango started to get
impatient after about 20 or 25 minutes. Wikstrom testified that Bango cocked a
12-gauge pump shotgun on the floorboard, pointed to an AK-47 in the back seat
of the car, and took a pistol from the pocket of his jacket. He told Wikstrom that
he had money for the heroin in the glove box, but Wikstrom did not find any money
there.
Jesse Neil testified that Shaw asked him for a ride to meet Wikstrom. Before
they left Shaw’s house, Neil saw Shaw put a gun in his waistband. Neil drove
Shaw to the apartment building. Wikstrom asked Bango for the money to pay for
the drugs. Bango told Wikstrom to have Shaw come to him. Wikstrom gave Shaw
the message and walked back toward the SUV intending to tell Bango to come to
Neil’s car when he saw Bango pulling on black gloves. Wikstrom was afraid of
getting shot, so he ran back to Neil’s car, jumped in the back seat, and told Neil to
drive away. Neil drove out of the parking lot and started heading back to Shaw’s
house. Wikstrom told Shaw and Neil that Bango had a lot of guns with him and no
money.
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Bango immediately started calling Wikstrom’s phone. Shaw answered the
phone and agreed to meet Bango in a public place but told him that he had a gun.
Bango suggested a 7-Eleven near the apartment complex. When they arrived,
Bango walked out of the store and approached the passenger side of the car.
Bango retrieved a scale from his vehicle, and Shaw placed it on the center console
of Neil’s car. Shaw weighed the heroin and told Bango to take a look at it. Bango
looked in the window, then revealed a badge and told them there were cops all
around and to get out of the car. Shaw told Neil that Bango was not a cop and to
get out of there. Wikstrom saw Bango reaching for the jacket pocket where he had
previously put the pistol and yelled that he was pulling his gun. Neil put the car in
reverse and heard gunshots as he was pulling out.
Bango fired two shots, one of which hit Shaw in the chest. Neil sped away
and drove directly to the hospital. Neil was sure that Shaw never pulled his gun
while they were in the 7-Eleven parking lot because Neil grabbed the gun from
Shaw’s waistband on the way to the hospital and put it under the driver’s seat.
Shaw died about 15 minutes after he arrived at the hospital. Officers later
recovered a silver and black Kahr .40-caliber semiautomatic pistol from beneath
the driver’s seat of Neil’s car. Bango was charged with first degree murder, second
degree murder, criminal impersonation, and witness tampering.
CrR 3.5 Hearing
The court held a CrR 3.5 hearing before jury selection. Detective Brian Vold
and Detective Louise Nist interviewed Bango after his arrest. Vold testified that he
began the interview by advising Bango of his Miranda rights. He read through a
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standard form used by the Tacoma Police Department and asked for Bango’s
acknowledgement after each statement. Bango and Nist signed the form. Vold
testified that he spent the next part of the interview getting basic personal
information from Bango and building rapport while Nist took notes. After about ten
minutes, Bango “made an unequivocal request for an attorney.” Vold testified that
it was his practice to stop an interview after such a request and agreed that he
would normally advise the interviewee that they would be transported to the jail.
However, Bango rescinded the request within a minute and indicated that he would
speak to the detectives. Because of Bango’s “back and forth decisions about
talking” to the detectives, Vold informed him that the conversation would be
recorded from that point on. Vold then began recording and reviewed Bango’s
Miranda rights again. Bango verbally consented to speak with detectives without
an attorney present, and the interview continued for nearly two hours.
Bango testified at the 3.5 hearing that, after he asserted his right to speak
with an attorney, Vold informed him that he was going to be arrested, that the
SWAT team would have to search his house, and that there “could be implications
for [his] wife and children.” Bango recalled Vold saying that “DSHS3 could get
involved” if evidence of drug use or sales was found in the house. Bango took this
as a threat and agreed to speak with the detectives to avoid involving his family.
He denied that he had ever told the detectives that he wanted to waive his rights
but admitted to acknowledging his rights and then continuing to answer questions.
3 Washington State Department of Social and Health Services
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When recalled as a rebuttal witness, Vold testified that he never suggested
to Bango that he would obtain a search warrant for Bango’s house, that he would
have Bango’s wife arrested, or that he would arrange for DSHS to take Bango’s
children. The court found that the detectives’ questioning was cut off as soon as
Bango invoked his right to counsel, that no further interrogation occurred after
assertion of this right, that the police did not engage in tactics designed to coerce
Bango into waiving his right, and that Bango’s subsequent waiver was knowing
and voluntary. The court admitted the recording of the interrogation with
redactions.
Voir Dire
During jury selection, the parties and the court questioned Juror 26
individually. She identified three extended family members who worked in law
enforcement. She also reported that her sister had been shot and killed in a
nightclub altercation about 40 years before. The shooter had been prosecuted
and went to prison. When the court asked if she felt that the system had worked
in that case, Juror 26 responded, “Yes. We felt that—the whole family felt that it
was fair and just.” The court asked if she believed that she could “judge this case
simply on the facts and evidence” despite her sister’s death, and she responded,
“Absolutely.” She also described an incident that occurred about 25 years before,
just after she had moved to her neighborhood, in which someone called her a racial
slur used against African Americans. When she called the police to report the
incident, the person on the phone asked if the term offended her, and she was so
surprised that she hung up without responding.
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Juror 26 is multiracial and lived in Japan and Germany as a child. She
described her work as an educator and trainer for a nonprofit that she developed
to research and teach the world view of individuals who process and communicate
information through more than one cultural frame of reference. The State asked,
“How do you think—I mean, it’s obviously rather a unique world view, perspective
on how you access information. I mean, it sounds like you’re taking it from
different—you probably see things a little differently than the kid that grew up in
Bellevue.” She responded, “Well, I would say so,” and described an occasion in
which a co-worker smelled gasoline and she remarked that it also smelled like
kimchee to her. She described this as showing that “you have many ways to look
at something.”
The State sought to exercise a peremptory strike against Juror 26. Bango
raised a Batson4 challenge, and the court conducted a hearing outside the
presence of the jury. Bango argued that Juror 26 was one of only two prospective
jurors who appeared to be people of color and the only prospective juror who
appeared to be of African American descent. Bango argued that there was nothing
in her background that would suggest that she could not be fair and impartial.
The State disagreed with Bango’s characterization of the venire, noting that
there were at least two other people of color that the State had passed on
excluding. The State first noted its concern that “this isn’t a good case for this
particular juror” because her sister had been murdered. It also noted that Juror
26’s comments “about perceptions and how some people perceive things very
4 476 U.S. 79.
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differently than others” suggested that she might be “very forgiving” of Bango’s
claim of “self-defense based on [his] perception of what he saw.” The State also
cited the fact that she had “come up with her own words and her own field and her
own way to look at the system” as a potential indication that she would be
disinclined to follow the rules of the court.
Bango responded that there were two other African Americans in the venire,
“one of which we will never get to, just exercising all the peremptories. So
essentially she’s out of the pool.” He argued that there was “nothing in the
individual questioning that would lead this Court to believe that she would fail to
follow the law or fail to follow the Court’s instruction.”
The court relied on State v. Rhone5 to analyze the challenge. The court
stated that Juror 26 represented the only person seated on the jury of African
American descent. After walking through each of the factors, the court stated that
it could not find circumstances to support a Batson challenge. The court did not
think that the State had shown a pattern of eliminating jurors of color or had
targeted Juror 26 during voir dire “as someone that might be biased towards one
party or the other.” It did not believe that the strike was biased or discriminatory in
nature. The court stated that it could not “infer that based on the exercise of this
peremptory alone . . . that the State was doing this purposefully for discriminatory
purposes.” The court excused Juror 26.
5 168 Wn.2d 645, 229 P.3d 752 (2010) (plurality opinion), abrogated by City of Seattle v.
Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017).
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Trial
During trial, the jury heard Bango’s description of the incident through the
redacted version of his interview with Vold and Nist. Bango admitted that he was
wearing a lanyard around his neck with a badge6 on it as a “little security policy” to
keep him from getting robbed. Bango stated that he approached the passenger
window of the car at the 7-Eleven and handed Shaw $294. He saw a gun in the
center console of Neil’s car that he described as a stainless and black “1911 style
Para Ordinance” with writing toward the front of the barrel. While Bango was
talking to Shaw, he noticed that Neil had his hand on the gear shift and became
concerned that “something [was] getting ready to happen.” Bango said he saw
Shaw reach for the gun in the console with his left hand, so he pulled out the badge
and told them to get out of the car. He said that Shaw pulled the trigger, but the
gun did not fire. Bango recalled seeing the hammer move and hearing an audible
click. At the same time, Bango fired a shot that hit the door of the car, which then
sped out of the parking lot.
The jury heard testimony from Johan Schoeman, a forensic scientist and
firearm and tool marks examiner with the Washington State Patrol crime
laboratory. Schoeman examined both guns related to this case. He stated that he
had tested the Kahr .40 caliber pistol recovered from Neil’s vehicle and found it to
be fully operable. He did not find any evidence that the gun had misfired. He also
testified that the Kahr does not have a visible hammer.
6 The gold badge had the seal of the State of Washington and the words “JRA
Transportation Officer” on it. JRA stands for Juvenile Rehabilitation Agency.
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Defense counsel sought to elicit testimony from Wikstrom that Bango had
shown him pictures of guns on his cell phone and told him that the guns had been
stolen from him. The defense argued that the statement was relevant to explain
why Bango had displayed the pictures to Wikstrom. The State argued that this
was inadmissible hearsay. The court ruled that Bango could testify as to why he
showed Wikstrom the pictures but that defense counsel would not be permitted to
elicit Bango’s explanation from Wikstrom. Bango chose not to testify at trial.
Bango proposed a jury instruction on justifiable homicide. The State
proposed an aggressor instruction, to which Bango objected. The court permitted
both instructions. The jury was instructed that homicide is justifiable when
committed in self-defense, that the law does not impose a duty to retreat, that a
person is entitled to act on appearances in defending himself, and that “[n]o person
may, by any intentional act reasonably likely to provoke a belligerent response,
create a necessity for acting in self-defense and thereupon kill, use, offer, or
attempt to use force upon or toward another person.”
Before the end of the trial, the State filed a third amended information listing
the charges as count one: murder in the first degree, count two: murder in the
second degree, count three: murder in the second degree while committing or
attempting to commit the crimes of assault in the second degree and/or criminal
impersonation in the first degree, count four: criminal impersonation in the first
degree, and count five: tampering with a witness. The jury found Bango not guilty
of murder in the first degree. However, Bango was found guilty on the murder in
the second degree charges described in counts two and three of the third amended
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information. The jury found that Bango was armed with a firearm when he
committed the murder and that he committed or attempted to commit both assault
in the second degree and criminal impersonation in the first degree. Bango was
also convicted of criminal impersonation in the first degree and tampering with a
witness as charged in counts four and five. The court dismissed the felony murder
conviction on count three of the charging document.
Post-Trial Proceedings
Days after the jury rendered its verdict, the Washington Supreme Court
issued its opinion in City of Seattle v. Erickson.7 Bango moved for a new trial
based on the dismissal of Juror 26 in light of Erickson. The State agreed that the
new Erickson test should apply but argued that the court’s ruling satisfied the
analysis under Erickson. The trial court considered Juror 26 to be of African
American descent for purposes of the motion, found that the State had articulated
sufficient race-neutral reasons for the strike under the Erickson analysis, and
denied the motion for a new trial.
Bango was sentenced to a total of 260 months imprisonment: 200 months
on the second degree murder conviction, plus 60 months for the firearm
enhancement to run consecutively to the base sentence. The court also imposed
12-month sentences each on the criminal impersonation and witness tampering
convictions, to be served concurrently with the murder sentence. Bango appealed.
7 188 Wn.2d 721, 398 P.3d 1124 (2017).
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ANALYSIS
I. Custodial Statements
First, we address the trial court’s admission of statements that Bango made
during a police interrogation after he had asserted his right to counsel. He
contends that these statements were obtained in violation of his constitutional right
to an attorney and should have been excluded.
Challenged findings of fact entered after a CrR 3.5 hearing will be upheld if
they are supported by substantial evidence in the record. State v. Broadaway, 133
Wn.2d 118, 131, 942 P.2d 363 (1997). “‘Substantial evidence exists where there
is a sufficient quantity of evidence in the record to persuade a fair-minded, rational
person of the truth of the finding.’” State v. Wilson, 144 Wn. App. 166, 183, 181
P.3d 887 (2008) (quoting State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994)).
We treat unchallenged findings of fact as verities on appeal. State v. Elkins, 188
Wn. App. 386, 396, 353 P.3d 648 (2015). We then determine de novo whether the
findings support the trial court’s conclusions of law. Id. at 396–97. Credibility
determinations cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60,
71, 794 P.2d 850 (1990).
First, Bango contends that the court erred in finding that police did not
engage in tactics designed to coerce him into waiving his rights. Both detectives
testified that they did not threaten or coerce Bango into continuing the interview
without an attorney present. Although Vold admitted that he had likely informed
Bango that he would be arrested and transferred to the jail while his request for an
attorney was pending, he denied making comments about searching Bango’s
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house, arresting his wife, or removing his children. Despite Bango’s testimony to
the contrary, substantial evidence exists in the record to support the finding of fact
that the police did not engage in coercive tactics.
Bango also challenges the court’s conclusion that his statements were
admissible. The State bears the burden to demonstrate by a preponderance of
the evidence that a suspect knowingly and intelligently waived his Miranda rights
before it may introduce incriminating statements made during a custodial
interrogation. State v. Mayer, 184 Wn.2d 548, 556, 362 P.3d 745 (2015); State v.
Radcliffe, 164 Wn.2d 900, 905–06, 194 P.3d 250 (2008). Signing a standard
waiver of rights form is not determinative evidence of waiver but “it ‘is usually strong
proof of the validity of that waiver.’” State v. Woods, 34 Wn. App. 750, 759, 665
P.2d 895 (1983) (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct.
1755, 60 L. Ed. 2d 286 (1979)). Waiver may also be inferred under certain facts
and circumstances even if not explicit. Id. at 759–60.
Here, the court found that the detectives scrupulously honored Bango’s
invocation of his rights and no further interrogation took place after that point, that
the detectives did not coerce Bango’s waiver, and that the subsequent signed
waiver of his rights was knowing and voluntary. These findings support the
conclusion that the State was permitted to introduce Bango’s statements made
during the interrogation.
Bango next argues that we should either recognize a constitutional due
process right or adopt an evidence rule requiring interrogations to be electronically
recorded in their entirety to be admissible. This court has squarely rejected the
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argument that there is a due process right under the Washington Constitution
requiring electronic recording of custodial police interrogations. See State v.
Turner, 145 Wn. App. 899, 911, 187 P.3d 835 (2008). Bango contends that the
implementation of body cameras for law enforcement officers since State v. Turner
warrants reconsideration of this issue. However, as the State points out, the
Washington Supreme Court considered and rejected a proposed court rule that
would have required recording of “[c]ustodial and non-custodial interrogations of
persons under investigation for any crime” in 2019.8 We decline to consider this
issue.
II. Peremptory Challenge
Bango contends that his right to equal protection under the Fourteenth
Amendment of the United States Constitution was violated because the State
improperly employed a peremptory strike to exclude the only other juror of his race.
“[T]he Equal Protection Clause prohibits a prosecutor from using the State’s
peremptory challenges to exclude otherwise qualified and unbiased persons from
the petit jury solely by reason of their race.” Powers v. Ohio, 499 U.S. 400, 409,
111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). The United States Supreme Court
established a three-part test to determine whether a party improperly used a
peremptory strike to exclude a potential juror based on race. Batson, 476 U.S. at93–94. First, the party challenging the exercise of the peremptory strike bears the
8 Wash. State Admin. Office of the Cts., Washington State Court Rules Archive,
http://www.courts.wa.gov/court_rules/?fa=court_rules.archivelist (last visited Dec. 18, 2020);
Suggested New Criminal Rule CrR 3.7 Recording Interrogations,
available at http://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=6
69 (last visited Dec. 18, 2020).
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burden of establishing a prima facie showing of purposeful discrimination. Id. at
93–94, 96. If such a showing is made, the burden shifts to the challenged party to
give a race-neutral explanation for the strike. Id. at 97. The court then weighs all
of the circumstances to determine whether the strike was racially motivated. Id. at
98.
The Washington Supreme Court has noted that “[t]he Batson framework
anticipates that state procedures will vary, explicitly granting states flexibility to
fulfill the promise of equal protection.” State v. Saintcalle, 178 Wn.2d 34, 51, 309
P.3d 326 (2013), abrogated on other grounds by Erickson, 188 Wn.2d 721.
Although the court had held that a trial court did not err in finding a prima facie
showing of discrimination when a party sought to strike the last member of a racial
or ethnic group from a jury, the court declined for many years to adopt a bright-line
rule that such a strike would always constitute a prima facie case. See State v.
Hicks, 163 Wn.2d 477, 491–92, 181 P.3d 831 (2008); Rhone, 168 Wn.2d at 653–
54. However, soon after Bango was convicted, the Washington Supreme Court
decided Erickson, which affected the first step of the Batson framework. Erickson,
188 Wn.2d 721. The Erickson court adopted the bright-line rule that a prima facie
showing of discrimination is automatically made if a party strikes the only member
of a cognizable racial group from the jury. Id. at 734.
In 2018, the Washington Supreme Court announced a change to the third
step of the Batson framework in State v. Jefferson. 192 Wn.2d 225, 429 P.3d 467(2018). The Jefferson court held that the relevant question for courts to answer in
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the third step of the Batson inquiry is whether an objective observer could view
race or ethnicity as a factor in the use of the peremptory challenge. Id. at 249.
A trial court’s findings regarding the prima facie showing of discrimination
have traditionally been reviewed for an abuse of discretion. Erickson, 188 Wn.2d
at 730. Under the old Batson framework, appellate courts reviewed a trial court’s
ruling on a Batson challenge for clear error. Jefferson, 192 Wn.2d at 250.
However, when the Supreme Court altered the third step of the analysis in
Jefferson, it also determined that the new, objective test would be reviewed de
novo. Id.9
Appellate courts have cautioned that trial courts should attempt to keep the
three phases of the analysis separate so as not to “collapse” the Batson analysis.
State v. Wright, 78 Wn. App. 93, 100–01, 896 P.2d 713 (1995). However, if the
striking party offers a race-neutral reason for the challenge and the trial court rules
on the ultimate question of racial motivation, then the reviewing court need not
determine whether the prima facie showing of discrimination was established.
Hicks, 163 Wn.2d at 492–93. Even if the striking party gives a race-neutral
explanation for the record, “such an offer of proof would not render the issue of
whether a prima facie case exists moot.” Wright, 78 Wn. App. at 101. This issue
is mooted only if “‘the trial court has ruled on the ultimate question of intentional
9 The State characterizes Jefferson as “a GR 37 case” and argues that the standard of
review “remains clearly erroneous, giving great deference to the trial judge.” However, the
Washington Supreme Court found that it could not apply GR 37 to the Batson challenge in Jefferson
because the rule was not yet effective at the time voir dire was completed. Jefferson, 192 Wn.2d
at 249. Instead, the court “address[ed] the problems with step three of the Batson test directly” and
modified the third step of the Batson analysis to conform with the requirements of GR 37. Id. at
249–50. In doing so, the court applied a de novo standard of review, noting that it was “a change
from Batson’s deferential, ‘clearly erroneous’ standard of review.” Id.
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discrimination.’” Hicks, 163 Wn.2d at 492 (quoting Hernandez v. New York, 500
U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991)). Because the prima
facie showing is unnecessary if the judge ruled on the question of racial motivation,
we first consider whether the trial court ruled on this ultimate question.
After Bango made his objection to the State’s attempted strike, the court
allowed the State to present its race-neutral explanation for the strike. The court
then conducted an analysis based on Rhone. The Rhone court considered only
whether the appellant had established a prima facie case of discrimination. Id. at
655. The Washington Supreme Court declined to adopt the bright-line rule, later
accepted in Erickson, that striking the last member of a cognizable racial group
automatically led to an inference of discrimination. Id. Instead, Rhone cited
Batson for the proposition that the party challenging a strike must show that the
use of the peremptory challenge and “something more” raised the inference of
discrimination. Id. Rhone listed eight examples of relevant circumstances to
consider when determining whether the challenging party had established such an
inference. Id. at 656.
Here, the court considered the circumstances listed in Rhone when
performing its analysis. Because these factors were used pre-Erickson to
determine whether a prima facie showing of discrimination had been made, if the
court based its ruling on those factors alone, it follows that the ruling would concern
only the prima facie showing, not the ultimate issue of racial motivation. It is not
abundantly clear from the trial transcript whether the court intended to rule on only
the first step of the analysis or on the ultimate issue. However, despite the court’s
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reliance on the Rhone factors in its analysis, its oral ruling suggested that it was
deciding the ultimate issue of intentional discrimination:
“I don’t think the State has shown a pattern of exercising their
discretion to purposefully eliminate minorities. I don’t think that during
either the general questioning or the individual questioning, that
[Juror 26] was targeted by the State as someone that might be
biased towards one party or the other. I feel that they have their own
reason for wanting her off the jury. I don’t believe it is a bias or
discriminatory in nature. It may be that they just simply don’t agree
with her world view of things and their concern about sympathy or
prejudice that she may have towards a defendant, whether black,
white or any minority or race. And I can’t infer that based on the
exercise of this peremptory alone, that there are any other—that
there’s something more that the Court can hang its hat on that would
say that the State was doing this purposefully for discriminatory
purposes. And I can’t make that inference on what has happened up
to this point in time.”
The court’s later statements also support the conclusion that its ruling
concerned the ultimate issue. During oral argument on the motion for a new trial,
the trial judge stated that he recalled conducting “a [Batson] analysis even though
[he] felt there wasn’t a . . . prima facie case.” The State agreed with this
characterization of the previous decision and stated that, for the purposes of the
Erickson analysis, “the Court should probably find a prima facie showing has been
made” and, “for the sake of argument, the State would stipulate to that step.” In
its order denying the motion for a new trial, the court stated that, when ruling on
the initial motion to strike the peremptory challenge, it “did not find that there was
a prima facie case of racial discrimination,” but, “despite this finding, the Court
engaged in an analysis as if that test had been met.”
Considering the court’s ruling and the surrounding context, it appears that
the court intended to rule on the ultimate issue of intentional discrimination.
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Accordingly, the issue of whether Bango established a prima facie showing of
discrimination is moot under Hicks, and we need not apply the modified rule from
Erickson to the first step of the Batson analysis in this case.
Accordingly, we turn to the court's determination regarding racial motivation.
The State concedes that the rule from Jefferson applies to cases that were pending
on appeal when Jefferson was decided, which includes this case. Therefore, we
apply the modified test from Jefferson and assess whether an objective observer
could view race or ethnicity as a factor in the strike. The relevant objective
observer for this analysis “is aware of the history of explicit race discrimination in
America and aware of how that impacts our current decision making in nonexplicit,
or implicit, unstated, ways.” Jefferson, 192 Wn.2d at 249–50. In Jefferson, the
court found that the proffered race-neutral reasons for striking the sole African
American juror were not supported by the record, which reflected differential
treatment of that juror and could support an inference of implicit bias. Id. at 250–
51.
In this case, an objective observer would not view Juror 26’s race or
ethnicity as a factor in the strike. The record does not reflect differential treatment
of Juror 26. The State cited the fact that the juror’s sister was a murder victim as
one reason for the strike. Similarly, defense counsel used a peremptory strike
against Juror 12, whose relative had been convicted of felony murder, even though
Juror 12 stated that he believed he could separate that incident from the current
situation. Despite the different roles occupied by the prospective jurors’ relatives,
both the prosecutor and defense counsel could reasonably have concluded that a
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family member’s prior involvement in a murder could consciously or unconsciously
affect a juror’s ability to be objective in a murder trial.
Although the questioning regarding the nature of Juror 26’s work was
unique among the potential jurors, this discrepancy is unsurprising given that she
created her own field of study. The State argued that her scholarship suggested
that she might be more forgiving of alternate perceptions than the average person.
This was an especially important consideration because Bango claimed he acted
in self-defense, which made his perception of the incident pivotal. The singular
nature of her field set her apart regardless of race, and the State’s justifications
carried none of the historical hallmarks of improper discrimination. See, e.g., GR
37(h), (i).10 An objective observer would not view race as a factor in the strike.
III. Limitation of Wikstrom’s Testimony
Next, Bango contends that his right to a fair trial was violated when the court
allowed the State to question Wikstrom about the photographs that Bango had
shown him but denied defense counsel the opportunity to cross-examine Wikstrom
about why Bango showed him the photographs. Bango argues that the evidence
was relevant to rebut the State’s theory that he “was intimidating Wikstrom in
preparation for a robbery.” A trial court’s evidentiary rulings are reviewed for an
abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). A
10 As the State notes, GR 37 was not yet in effect at the time of Bango’s trial and does not
apply to this case. See Jefferson, 192 Wn.2d at 249 (“[W]e hold that GR 37 applies prospectively
to all trials occurring after GR 37’s April 24, 2018 effective date. But because the ‘triggering event’
for its application was voir dire, we cannot apply GR 37 to the completed Batson challenge in this
case.”).
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No. 81045-6-I/20
court abuses its discretion when its decision is based on untenable grounds or
reasons. Id.
All relevant evidence is admissible except as limited by constitutional
requirements, statutes, rules, or regulations. ER 402. Hearsay evidence is
generally inadmissible unless allowed by the rules of evidence, other court rules,
or statute. ER 802. Hearsay is defined as an out-of-court statement offered to
prove the truth of the matter asserted. ER 801(c). An out-of-court statement made
by a party is not hearsay if it is offered against the speaker. ER 801(d)(2).
However, if the out-of-court statement by a party is self-serving and tends to aid
that party’s case, it is not admissible under this exception. Finch, 137 Wn.2d at
824. “The problem with allowing such testimony is that it places the defendant’s
version of the facts before the jury without subjecting the defendant to cross-
examination.” Id. at 825.
Here, defense counsel sought to introduce statements made by Bango to
Wikstrom for their truth. These statements would have been offered to aid Bango’s
case by providing an alternative reason that Bango showed Wikstrom the
photographs other than the State’s theory that the photographs were an
intimidation tactic. Therefore, the evidence was inadmissible hearsay. The court
did not abuse its discretion in excluding this evidence.
IV. Aggressor Instruction
Bango also argues that the trial court erred in giving an aggressor
instruction. Appellate courts review challenged aggressor instructions using the
same standards applied to other jury instructions on review. State v. Grott, 195
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No. 81045-6-I/21
Wn.2d 256, 270, 458 P.3d 750 (2020). Jury instructions are sufficient when they
are supported by substantial evidence, permit the parties to argue their theories of
the case, and, when read as a whole, properly inform the jury of the applicable law.
State v. Woods, 138 Wn. App. 191, 196, 156 P.3d 309 (2007). Self-defense
instructions are subject to heightened scrutiny, and the jury instructions must make
the law of self-defense “‘manifestly apparent to the average juror’” when read as a
whole. Id. (quoting State v. Walden, 131 Wn.2d 469, 473, 932 P.2d 1237 (1997)).
Appellate courts review de novo whether the State produced sufficient evidence to
justify an aggressor instruction. State v. Sullivan, 196 Wn. App. 277, 289, 383
P.3d 574 (2016). On appeal, we view the evidence in the light most favorable to
the party who requested the instruction. State v. Bea, 162 Wn. App. 570, 577, 254
P.3d 948 (2011).
Generally, the right of self-defense cannot be invoked successfully by an
aggressor in an altercation. State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624(1999). An instruction informing the jury of this principle is appropriate where there
is credible evidence from which the jury could reasonably determine that the
defendant provoked the need to act in self-defense. Id. at 909–10. If there is
conflicting evidence as to whether the defendant’s conduct precipitated a
confrontation, the aggressor instruction is appropriate. Id. at 910. The Washington
Supreme Court has cautioned that “‘courts should use care in giving an aggressor
instruction,’” but should give the instruction when called for by the evidence. Grott,
195 Wn.2d at 270 (quoting Riley, 137 Wn.2d at 910 n.2). “[A]ggressor instructions
are disfavored only where they are not justified.” Id. at 271.
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No. 81045-6-I/22
Words alone do not constitute sufficient provocation to warrant an
aggressor instruction. Riley, 137 Wn.2d at 910–11. This is so because the victim
cannot lawfully respond with force to a defendant’s use of words alone. State v.
Kee, 6 Wn. App. 2d 874, 879, 431 P.3d 1080 (2018). However, “where there is
evidence that the defendant engaged in a course of aggressive conduct, rather
than a single aggressive act, ‘the provoking act can be part of that “single course
of conduct.”’” Grott, 195 Wn.2d at 273 (emphasis omitted) (quoting Sullivan, 196
Wn. App. at 290). For example, Division Three of this court has found that a
defendant’s conduct “consisted of more than words” and an aggressor instruction
was warranted when the defendant was yelling and leaning over another person
with his hands on the arms of the chair that she was sitting in. State v. Anderson,
144 Wn. App. 85, 89–90, 180 P.3d 885 (2008).
Here, the State argued that the aggressor instruction was appropriate
because “a jury could conclude that [Bango] pulling the badge . . . resulted in [Neil]
throwing the car into reverse and Mr. Shaw grabbing for the gun and the defendant
then shooting him. Or that the defendant started this whole process by pulling the
badge and instigating a robbery.” The State contends that the display of the badge
and demand that everyone get out of the car, viewed in the context of Bango’s
other actions that night, constituted an aggressive act because it indicated that
Bango was commencing the robbery.
Viewed in the light most favorable to the State, the evidence was sufficient
to support the aggressor instruction. The State produced evidence that Bango had
come to the drug deal with multiple guns and no money, that Wikstrom feared
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No. 81045-6-I/23
Bango would start shooting when he saw him pulling on tactical gloves, and that
Bango asked to enter Neil’s car at the 7-Eleven. A jury could conclude that
Bango’s display of the badge and demand that they exit the car was the final step
in a robbery.
Even if the aggressor instruction was warranted, Bango argues that the
court erred in giving the instruction without also instructing the jury that words alone
were insufficient to constitute provocation. “When there is evidence that the
defendant provoked an altercation with words, particularly when the State
suggests that those words constitute first aggression, the language of WPIC 16.04
is inadequate to convey the law established in Riley.” Kee, 6 Wn. App. 2d at 882.
In State v. Kee, Division Two of this court concluded that the trial court failed to
make the law of self-defense manifestly apparent when it did not convey this rule
to the jury and the State argued that the defendant had initiated the confrontation
by speaking to the victim. Id. at 880–82.
Although this situation is similar to Kee, here, the court did not err in failing
to instruct the jury that words alone are not adequate provocation. The State does
not appear to have argued that Bango’s demand to get out of the car alone
constituted an act of aggression. As noted above, the State’s theory was that
Bango’s attempt to rob Shaw precipitated any need to act in self-defense. The
court did not err in instructing the jury.
V. Sufficiency of the Evidence
Bango argues that the State failed to prove beyond a reasonable doubt that
he did not act in self-defense. “A claim of insufficiency admits the truth of the
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No. 81045-6-I/24
State’s evidence and all inferences that reasonably can be drawn therefrom.”
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). When a defendant
challenges the sufficiency of the evidence in a criminal case, we draw all
reasonable inferences from the evidence in favor of the State and against the
defendant. Id. The evidence is sufficient if, after viewing the evidence in the light
most favorable to the State, any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt. Id. We “must defer to the trier of fact on issues
of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence.” State v. Thomas, 150 Wn.2d 821, 874–75, 83 P.3d 970 (2004).
Viewed in the light most favorable to the State, the evidence was sufficient
to prove that Bango did not act in self-defense. Although Bango claimed that he
saw and heard Shaw pull the trigger of his gun, Neil and Wikstrom both testified
that Shaw never drew his gun from the waistband of his pants. The State also
produced evidence that Shaw’s gun did not show signs of a misfire and did not
have a visible hammer, despite Bango’s assertion that he saw the gun’s hammer
move. Based on this testimony, a rational trier of fact could conclude beyond a
reasonable doubt that Bango was not acting in self-defense when he shot Shaw.
VI. Double Jeopardy
Bango contends that the trial court erred when it dismissed but did not
vacate his conviction for felony murder. He argues that the court’s failure to vacate
the conviction amounts to a violation of his constitutional right to be free from
double jeopardy. At oral argument, the State conceded error and asked this court
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No. 81045-6-I/25
to remand for vacation of the dismissed conviction. We accept the State’s
concession and remand.
VII. Statement of Additional Grounds for Review
A. Prosecutorial Misconduct
In a pro se statement of additional grounds for review, Bango contends that
multiple instances of prosecutorial misconduct during the State’s closing argument
individually and collectively deprived him of a fair trial.
A defendant claiming prosecutorial misconduct must show that the
prosecutor’s conduct was both improper and prejudicial in the context of the entire
trial. State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015). We view
allegedly improper statements in the context of the prosecutor’s entire argument,
the issues in the case, the evidence discussed in the argument, and the jury
instructions. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). The
conduct is prejudicial if the defendant shows a substantial likelihood that the
misconduct affected the jury’s verdict. In re Pers. Restraint of Glasmann, 175
Wn.2d 696, 704, 286 P.3d 673 (2012).
When the objection is raised for the first time on appeal, the appellant “must
also show ‘that the misconduct was so flagrant and ill intentioned that an instruction
would not have cured the prejudice.’” Walker, 182 Wn.2d at 477–78 (quoting
Glasmann, 175 Wn.2d at 704). We focus not on the prosecutor’s subjective intent
but “on whether the defendant received a fair trial in light of the prejudice caused
by the violation of existing prosecutorial standards and whether that prejudice
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No. 81045-6-I/26
could have been cured with a timely objection.” Id. at 478. A closing argument
provides
an opportunity to draw the jury’s attention to the evidence presented,
but it does not give a prosecutor the right to present altered versions
of admitted evidence to support the State’s theory of the case, to
present derogatory depictions of the defendant, or to express
personal opinions on the defendant’s guilt.
Id.
1. State’s Slideshow During Closing Argument
Bango first argues that the State committed prosecutorial misconduct when
it presented a slideshow to the jury during closing argument that contained
“pictures that were admitted into evidence that were altered with captions.”
Defense counsel requested a copy of the State’s slides before closing
argument so that any objections could be made before the slides were shown to
the jury. The court stated that it would review the slides before closing argument
but did not intend to show them to defense counsel. After reviewing the slides, the
court ordered the State to strike the heading “murder in the underworld” from one
of its slides and to strike the phrase “defendant’s greed” from another. The court
permitted the statement that “greed for drugs, greed for money cost Jeffrey Shaw
his life.” Bango objected to these remaining phrases, but the court felt that the
edited version of the slide was neutral.
Bango contends that the captions added to the admitted exhibits displayed
in slides 5 and 6 impermissibly altered the evidence. Slide 5 showed an image of
the bullet hole in the passenger door of Neil’s car with the caption, “Defendant shot
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No. 81045-6-I/27
at Jeffrey once.” The next slide showed an autopsy photo of the bullet wound in
Shaw’s torso with the caption, “And twice.”
In State v. Walker, the Washington Supreme Court found that “[t]he
prosecution committed serious misconduct” when it presented a slideshow during
closing argument that:
[I]ncluded multiple exhibits that were altered with inflammatory
captions and superimposed text; it suggested to the jury that Walker
should be convicted because he is a callous and greedy person who
spent the robbery proceeds on video games and lobster; it plainly
juxtaposed photographs of the victim with photographs of Walker
and his family, some altered with racially inflammatory text; and it
repeatedly and emphatically expressed a personal opinion on
Walker’s guilt.
182 Wn.2d at 478 (emphasis omitted). Bango also cites In re Personal Restraint
of Glasmann, in which the defendant’s booking photograph, which had been
admitted into evidence, was featured in at least five slides in the State’s closing
argument, with captions reading “DO YOU BELIEVE HIM?” and “WHY SHOULD
YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?” and, near the end
of the presentation, with the word “GUILTY” superimposed over the image multiple
times in red letters. 175 Wn.2d at 701–02. The court found that “the prosecutor’s
modification of photographs by adding captions was the equivalent of unadmitted
evidence.” Id. at 706.
Here, the captions “Defendant shot at Jeffrey once,” and “And twice,” were
not nearly as inflammatory as those in Walker and Glasmann. There had been
testimony that Bango fired two shots, one that hit the passenger door of Neil’s car
and one that hit Shaw in the chest. Unlike Glasmann, the captions were not the
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No. 81045-6-I/28
equivalent of adding unadmitted evidence. The use of these slides does not
constitute misconduct.
Bango also challenges slide 90:
He argues that the use of the phrase “defendant’s greed” in this slide and in the
prosecutor’s verbal argument after the court had stricken the phrase from another
slide constituted misconduct. Bango did not object when the prosecutor used this
term orally or when slide 90 was shown to the jury.
Even if the prosecutor’s use of this phrase was improper, Bango cannot
show prejudice. The State’s theory of the case was that Bango set up the deal
intending to rob Shaw. Explicitly stating that greed was the motivation for a robbery
is unlikely to sway a jury. Bango has not shown misconduct.
2. Opinion on Bango’s Guilt
Bango also argues that the State committed prosecutorial misconduct in
closing argument because it presented numerous slides with the word “guilty” on
them. He contends that these communicated the prosecutor’s individual opinion
of his guilt to the jury.
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No. 81045-6-I/29
“Attorneys may use multimedia resources in closing arguments to
summarize and highlight relevant evidence” as well as reasonable inferences from
the evidence. Walker, 182 Wn.2d at 476–77. However, “a prosecutor cannot use
his or her position of power and prestige to sway the jury and may not express an
individual opinion of the defendant’s guilt, independent of the evidence actually in
the case.” Glasmann, 175 Wn.2d at 706. This court relied on Glasmann when
finding similar tactics to be flagrant misconduct:
The slides of Hecht’s photograph with a large red “GUILTY”
printed across his face were at odds with the prosecutor’s duty to
ensure a fair trial. No legitimate purpose is served by a prosecutor
showing the jury a defendant’s photograph with the word “GUILTY”
superimposed over his face. Such images are the graphic equivalent
of shouting “GUILTY.” “A prosecutor could never shout in closing
argument that ‘[the defendant] is guilty, guilty, guilty!’ and it would be
highly prejudicial to do so.”
State v. Hecht, 179 Wn. App. 497, 505, 319 P.3d 836 (2014) (quoting Glasmann,
175 Wn.2d at 709). Even though the prosecutor’s use of Hecht’s driver’s license
photo was “arguably less severe” than the booking photo used in Glasmann, this
court found that the graphics remained “clearly improper.” Id. at 506. The visual
presentation of the word “guilty” also influenced the court’s conclusion: “the
prejudicial impact of the word ‘GUILTY’ was magnified by the fact it was written in
capital letters, in red, and on a diagonal, obvious graphic devices for drawing the
eye, implying urgency of action, and evoking emotion.” Id. The court was not
swayed by the fact that “the prosecutor’s verbal argument was largely temperate”
because it did not “diminish the dramatic impact of the improper graphics” that
“unfairly injected inflammatory extrinsic considerations into the argument.” Id.
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No. 81045-6-I/30
Bango objects to slides 76, 79, 83, 85, 87, 89, and 96 of the State’s
presentation:
In the context of the State’s verbal argument, it is clear that the prosecutor was not
expressing a personal opinion of Bango’s guilt. Rather, she was arguing that the
State had met its burden of proving each of the charges beyond a reasonable
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No. 81045-6-I/31
doubt based on the evidence and reasonable inferences from the evidence.
Although the word “guilty” appears repeatedly, the presentation is considerably
less dramatic than the slides in Glasmann and Hecht. Bango has not shown
misconduct.
3. Misstatement of the Law of Self-Defense
Bango next contends that the prosecutor committed misconduct by
misstating the law and presenting the jury with a “false choice” during closing
argument. While discussing justifiable homicide, the prosecutor stated, “To believe
homicide was justified, to believe this was self-defense, you’d have to take Mr.
Bango’s word as to whether or not [Shaw] pointed a gun and pulled the trigger.”
Bango identifies slide 61 of the State’s slide show as objectionable:
He contends that these statements improperly shifted the State’s burden by
presenting the jury with the false choice that they could “find the defendant not
guilty only if they believe his or her evidence or only if they believe the victim
(State’s witness) lied or was mistaken.” Although Bango objected at trial to the
explanation of justifiable homicide in slide 59 as a misstatement of the law, he did
not raise an objection to slide 61.
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No. 81045-6-I/32
“Although prosecutors have ‘wide latitude’ to make inferences about
witness credibility, it is flagrant misconduct to shift the burden of proof to the
defendant.” State v. Miles, 139 Wn. App. 879, 890, 162 P.3d 1169 (2007) (quoting
State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)). It is a misstatement
of the law and a misrepresentation of the role of the jury and the burden of proof
for the prosecutor to argue that, to acquit a defendant, the jury must find that the
State’s witnesses are either lying or mistaken. See State v. Fleming, 83 Wn. App.
209, 213, 921 P.2d 1076 (1996).
In State v. Fleming, this court found that the prosecutor misstated the law
and misrepresented the role of the jury and the burden of proof when they argued
to the jury in closing:
[F]or you to find the defendants, Derek Lee and Dwight Fleming, not
guilty of the crime of rape in the second degree, with which each of
them have been charged, based on the unequivocal testimony of
[D.S.] as to what occurred to her back in her bedroom that night, you
would have to find either that [D.S.] has lied about what occurred in
that bedroom or that she was confused; essentially that she
fantasized what occurred back in that bedroom.
Id. at 213 (alteration in original) (emphasis omitted). In State v. Miles, Division Two
of this court found misconduct when the prosecutor argued that the State’s and
defendant’s versions of events were mutually exclusive and that the jury had to
choose whether the State’s witnesses or the defense witnesses were correct:
[T]o the extent the prosecutor’s argument presented the jurors with
a false choice, that they could find Miles not guilty only if they
believed his evidence, it was misconduct. The jury was entitled to
conclude that it did not necessarily believe Miles and Bell, but it was
also not satisfied beyond a reasonable doubt that Miles was the
person who sold the drugs to Wilmoth.
139 Wn. App. at 889–90.
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No. 81045-6-I/33
Here, the prosecutor argued that the jury had to believe that Shaw tried to
shoot at Bango to find that the homicide was justified:
The State has the burden of proving beyond a reasonable
doubt that the homicide was not justified. And if you find we have not,
then it’s your duty to return a verdict of not guilty. But, ladies and
gentlemen, we have disproved justifiable homicide in this case and
here’s why. To believe homicide was justified, to believe this was
self-defense, you’d have to take Mr. Bango’s word as to whether or
not the defendant pointed a gun and pulled the trigger.
Although this is a closer case than Miles or Fleming, in context, the State’s
argument here did not rise to the level of flagrant misconduct. The prosecutor
explicitly acknowledged that the State had the burden to prove that Bango had not
acted in self-defense. Read in context, the prosecutor’s statement appears to be
pointing out that there was no evidence apart from “Mr. Bango’s word” that Shaw
had pointed a gun at him and pulled the trigger. Bango has not shown that the
prosecutor committed flagrant misconduct by misstating the law.
B. Ineffective Assistance of Counsel
Next, Bango contends that he received ineffective assistance when his
attorney failed to object or renew an objection to the alleged instances of
prosecutorial misconduct in the State’s closing argument. Specifically, Bango
alleges that his trial counsel should have objected to slides 5 and 6 of the State’s
slideshow, the prosecutor’s opinion of guilt, the prosecutor’s comment that a
defense witness was biased, and the prosecutor’s comment to the jury to “hold
[the] defendant accountable.”
A criminal defendant has the right to effective assistance of counsel under
both the state and federal constitutions. Strickland v. Washington, 466 U.S. 668,
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No. 81045-6-I/34
686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Jones, 183 Wn.2d 327,
339, 352 P.3d 776 (2015). To prevail on a claim of ineffective assistance of
counsel, the defendant must show that counsel’s performance was deficient and
that the deficient performance was prejudicial. Jones, 183 Wn.2d at 339.
Because we find no misconduct concerning slides 5 and 6 or the
prosecutor’s use of the word “guilty” in the slideshow, Bango cannot show that his
counsel’s performance was deficient in failing to object to this material. Bango has
not shown that he received ineffective assistance when his attorney failed to object
to the slides.
When reviewing the evidence in closing, the prosecutor commented on
Bango’s witness:
His witness, George Niera, seemed—very nice person. Here
it’s clear he’s the defendant’s friend. He’s biased. No disrespect to
him. Consider what he told you. He wants you to believe that he and
the defendant have engaged in the same training. He didn’t attend
the same training at the same time with the defendant, but he wants
to convince you, to perhaps convince himself, the defendant acted
accordingly with their training. And recall that Mr. Niera—no
malintent—no one’s suggesting he’s trying to mislead anyone, but
what all has he truly reviewed?
Bango’s attorney did not object.
Bango does not provide any authority showing that this argument was
objectionable, nor is relevant case law evident. Generally, “[t]he State has wide
latitude in drawing and expressing reasonable inferences from the evidence,
including inferences about credibility” in closing argument. State v. Rodriguez-
Perez, 1 Wn. App. 2d 448, 458, 406 P.3d 658 (2017). Bango has not shown that
his attorney’s failure to object to this argument constituted deficient performance.
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No. 81045-6-I/35
In its rebuttal, the State concluded with the following:
[C]ounsel wants you to believe it’s just the State throwing stuff
against the wall and hoping something sticks. No. Hold him
accountable. The fact that he’s guilty of three different versions, the
fact that he committed murder in three different ways is not the State
throwing it against the wall. It’s the State insisting that he be held
accountable for what he did. I ask you to do that and convict Donald
Bango.
Again, Bango’s attorney did not object.
Similarly, Bango does not point to any authority showing that his counsel’s
failure to object to this statement constituted deficient performance. This court has
found that there was not “anything improper with stating that the defendant will be
set free or held to account by a jury’s decision; that is indeed the jury’s
responsibility and function.” State v. McNallie, 64 Wn. App. 101, 111, 823 P.2d
1122 (1992). Bango has not shown that he received ineffective assistance for
failure to object to this statement.11
11 Bango also contends that he received ineffective assistance when his trial counsel failed
to investigate his mental health history and diagnoses as a possible foundation for a diminished
capacity defense. Because Bango’s allegation of ineffective assistance appears to concern facts
outside the record before this court, we decline to reach this issue. See State v. Calvin, 176 Wn.
App. 1, 26, 316 P.3d 496 (2013).
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No. 81045-6-I/36
Affirmed in part, remanded for vacation of Bango’s felony murder
conviction.12
WE CONCUR:
12 Bango also argues in his Statement of Additional Grounds for review that the court erred
in excluding evidence of Shaw’s reputation and prior convictions. The court denied the State’s
request to exclude this evidence but required Bango to “make an offer of proof via the witness
outside the presence of the jury before introducing such evidence.” The exclusion that Bango
alleges was error does not appear to have taken place. Because this additional ground does not
adequately inform the court of the nature and occurrence of the alleged errors, we decline to review
it. See Calvin, 176 Wn. App. at 26.
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