                                                                            FILED 

                                                                          JULY 7, 2015 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )        No. 31940-7-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )
GRANT WAYNE SCANTLING,                         )        UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWAY, C.l.       Grant Scantling appeals his conviction of first degree burglary

and aggravated first degree murder, assigning error to evidentiary rulings by the court,

ineffective assistance of counsel, and prosecutorial misconduct. He also challenges the

trial court's findings and order relating to legal financial obligations. We find no error or

abuse of discretion and affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Grant Scantling was convicted of first degree burglary and aggravated first degree

murder after he broke into the Kennewick home of his former girlfriend, Ann Marie

Krebs, and shot and killed Franklin Palmer, who was one of three adults living in the

home at the time.
No. 3 1940· 7· III
State v. Scantling


       Mr. Scantling and Ms. Krebs, who had been romantically involved for six years

and have two young children together, had broken up around Thanksgiving 2012,

approximately four months before the shooting. Before they broke up, Mr. Scantling,

Ms. Krebs, their two children, and Ms. Krebs's son from another relationship, lived

together at the Kennewick home. Mr. Palmer and Michael Billado, friends of Mr.

Scantling and Ms. Krebs, also lived there occasionally.

       Following the breakup with Ms. Krebs, Mr. Scantling moved into his mother's

house, located a few blocks away. The children remained with Ms. Krebs.

       Around Christmas time, Ms. Krebs went to see Mr. Scantling at his mother's

house and during the course of their conversation, told him that a couple of weeks after

they had broken up, she had sexual relations with Mr. Palmer. Mr. Scantling responded

that he was going to "kick [Mr. Palmer's] butt;" proceeded to Ms. Krebs's home, where

Mr. Palmer was staying; assaulted him; and told him to "get the fuck out." Report of

Proceedings (RP) (Sept. 9,2013) at 176,250. Mr. Billado witnessed the assault.

       Shortly after Christmas, Mr. Scantling moved to Spokane, where he stayed with

his brother-in-law. He was living there at the time of the shooting.

       On March 19, 2013, three days before the shooting, Mr. Scantling borrowed his

brother-in-Iaw's car and drove to Kennewick. According to Mr. Scantling, he had finally

saved enough money to pay for gas and take his children to lunch, and was anxious to see

them since he had not visited since around New Year's. Unbeknownst to Mr. Scantling,

                                             2

No. 31940-7-III
State v. Scantling


Ms. Krebs was packing up her and the children's belongings, on the verge of moving to

Michigan. She was surprised at Mr. Scantling's arrival and he was surprised and upset at

signs she was moving. She slammed the door upon seeing him, closed the curtains, and

refused him entry

       Mr. Scantling returned to Spokane and over the next several days wrote out (but

did not mail) enraged letters-this despite a text message Ms. Krebs had sent him late in

the day on March 19, apologizing for her actions. Among his angry ruminations were the

following:

       What a cunt. You bitch. I'm going to kill you for that. What was she
       afraid of? I wasn't this guy til now. You're going to reap a whirlwind. Or
       maybe I was that guy and it took Ann to bring it out. The demon is loose.

RP (Sept. 6,2013) at 254.

       3-19,2013 She pulled the curtains so I couldn't even see them. They
       didn't see me. What did she tell them? Michael saw me, not my babies.
       What a cunt! ! ! ! ! You bitch, I'm gonna kill you for that.

Jd. at 383.

       She has gone too far!!! She could have prevented this day by simply letting
       me hug my children. I would have been comforted, come home, went to
       work. But, no. Ann had to perpetuate her tough bitch bullshit.
              This last act of ignorance has backed me into a corner. I am
       destroyed, annihilated and tortured inside as the thought of her continuing
       to use [the children] against me like this. I won't stand for it.

Jd. at 378-79.

       [S]he was the only woman I ever loved. She didn't deserve the way I
       treated her, but she does now. My love for her is dead. That's not true, I

                                            3

No. 3 I 940-7-III
State v. Scantling


       love her to death, that's why this hurts so much. If only she would drop the
       lies and APOLOGIZE. But, no. A cunt is as a cunt does. I apologize to
       everyone but Ann for the pain plus heartache that this day is going to cause.
       I'm already gonna bum in hell, God have mercy on me.

Id. at 379-80.

       [I]fI fail, Ann will never learn that you can't treat me that way, and get
       away with it. And she will go about her way full of pride, saying "serves
       him right" looser. No, not this time bitch. Options. 1. Off Myself 2. Set
       things right. I choose #2 Run rabbit run.

Id. at 376-77.

       Early in the morning on March 22, Mr. Scantling, who later told police he had

hardly slept in the prior 72 hours, again drove from Spokane to Ms. Krebs' home-this

time taking his brother-in-Iaw's car and handgun without permission. In Kennewick, Ms.

Krebs's children's beds had been taken apart for the move, so all three children were

sleeping with her. She and the children awoke to the sound of shattering glass. Mr.

Scantling had thrown a cinder block through the sliding glass door of Ms. Krebs'

bedroom.

       After entering through the broken glass door, Mr. Scantling put his hand around

Ms. Krebs' neck, choking her, and held a gun to her forehead. He screamed at her about

not taking his children, yelling, "This wouldn't have happened if you would have let me

see my kids." RP (Sept. 9, 2013) at 133.

       Mr. Billado and Mr. Palmer were both staying at the home and on hearing the

commotion headed for Ms. Krebs's bedroom. Mr. Billado later testified that he entered

                                            4

No. 31940-7-III
State v. Scantling


first and asked, "What the fuck you doing, Grant?" RP (Sept. 9, 2013) at 134. According

to Mr. Billado, Mr. Scantling turned toward the two men, responded "Fuck you," and

"Fuck you, Frank," and then shot in their direction. Id. Mr. Billado ducked, took off

down the hallway, and ran outside, where he called 911. Mr. Palmer was hit.

       According to Ms. Krebs, Mr. Palmer was felled by the first shot and lay

motionless, partially in a closet off the hallway. Mr. Scantling walked over to him and

shot him at close range a second time. An autopsy revealed that Mr. Palmer was shot

three times, twice at close range.

       Mr. Scantling then moved to the living room; Ms. Krebs initially waited but then

followed him in. After he pushed her into furnishings assembled for the move, he told

her he had "one bullet for you and one for myself," and then held the gun to his head for

a moment before lowering it and leaving. Id. at 241. As Mr. Scantling drove from the

home, he saw Mr. Billado and yelled, "That's what happens when you fuck with

someone's wife." Id. at 139. Mr. Scantling returned to Spokane, where he was arrested

later in the day.

       During a police interview, Mr. Scantling made several voluntary statements to the

detectives before requesting an attorney, including that Mr. Palmer had slept with Ms.

Krebs shortly after they separated, and "consciously drove a wedge" between the two of

them that was   ~~very   difficult to deal with." Clerk's Papers (CP) at 179. He also spoke

repeatedly about Ms. Krebs's actions three days earlier, volunteering that he had only

                                                5

No. 31940-7-111
State v. Scantling


slept about one and a half hours since. He said he was having "some real hard problems

digesting and dealing with that door being slammed in my face and I went back down this

morning, just wanted to see my kids, man. And he shouldn't have been there." CP at

180.

       Execution of a warrant to search the Spokane home where Mr. Scantling had been

staying yielded the incriminating letters he had written.

       Before trial, the State moved for an order that evidence of Mr. Scantling's prior

assault and threats against Mr. Palmer were admissible under ER 404(b). It contended

that the prior assault was admissible to show the absence of mistake or accident, motive,

disposition, and the relationship between Mr. Scantling and Mr. Palmer. It also argued

the evidence was admissible to rebut a claim of self-defense that Mr. Scantling initially

asserted but later abandoned. The trial court ruled the evidence admissible.

       With two adult eyewitnesses and three child witnesses to the crime, Mr. Scantling

did not contest his liability for first degree burglary or murder at trial. The entire defense

effort was devoted to persuading the jury that his shooting of Mr. Palmer was not

'premeditated and that he was guilty of only second degree murder.

       The jury was not persuaded and found Mr. Scantling guilty as charged. It returned

a special verdict that "[t]he murder was committed in the course of, in furtherance of, or

in immediate flight from a burglary in the first degree." CP at 146. Mr. Scantling was

sentenced to life in confinement without the possibility of parole. He appeals.

                                              6

No. 31940-7-111
State v. Scantling


                                        ANALYSIS

         Mr. Scantling makes six assignments of error on appeal. His first and second are

that the court erred in admitting evidence of his threat and prior assault against Mr.

Palmer. His third is that he received ineffective assistance of counsel when his trial

lawyer failed to object to the handwritten letters seized in the search of his Spokane

home. His fourth is that the prosecutor committed misconduct in opening statement and

closing argument. His fifth and sixth are to the trial court's finding of ability to pay legal

financial obligations and imposition of costs. We address the assignments of error in that

order.

                  Evidence o/Threat and Prior Assault Against Mr. Palmer

         Because the State charged Mr. Scantling with first degree premeditated murder, it

needed to offer evidence that Mr. Scantling's killing of Mr. Palmer had been ''thought

over beforehand," as explained by the court's instructions. CP at 134 (Instruction 21).

To that end, it moved before trial for a ruling that evidence of Mr. Scantling's prior threat

against Mr. Palmer and the December assault were admissible under ER 404(b). The

motion was not argued, however, until Mr. Billado was called as a witness.

         Out of the presence of the jury, Mr. Billado was questioned about the assault. The

State then argued that the testimony was admissible for the permitted purpose of proving

Mr. Scantling's motive and intent in killing Mr. Palmer as well as rebutting Mr.

Scantling's claim of self-defense. It asserted that the prior assault shows motive "because

                                              7

No. 31940-7-III
State v. Scantling


we have the same motive back then that we have here" and that no other evidence

provided a clearer picture of Mr. Scantling's state of mind in entering Ms. Krebs' home

and shooting Mr. Palmer. RP (Sept. 9, 2013) at 166.

       The court initially ruled that the evidence was admissible to rebut Mr. Scantling's

theory of self-defense. Following a noon recess, however, Mr. Scantling's lawyer asked

if the court would still find the evidence admissible if Mr. Scantling abandoned that

defense. The court responded:

       THE COURT: ... [I]n response to [defense counsel's] questions, I did
       indicate that the self-defense was-and I did actually in the sidebar, too,
       bring up the fact that the defense had opened it up to-I thought by
       asserting self-defense. If you take out the self-defense, 1 think 1 would rule
       the same way based on the representations, rather than reciting them
       again, that [the State] made.

ld. at 172 (emphasis added). Mr. Scantling argues that the trial court committed both

procedural and substantive error in admitting evidence of his prior assault of Mr. Palmer.

       The process to be followed by a trial court in determining whether evidence of

prior crimes or wrongs is admissible under ER 404(b) is well settled. The trial court must

'" (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. Foxhoven, 161 Wn.2d 168, 175,

163 P.3d 786 (2007) (quoting State v. Thang, 145 Wn.2d 630,642,41 P.3d 1159 (2002)).



                                              8

No. 3 I 940-7-II1
State v. Scantling


It must conduct this analysis on the record. Foxhoven, 161 Wn.2d at 175. "Failure to do

so precludes the trial court's 'thoughtful consideration of the issue', and frustrates

effective appellate review." State v. Smith, 106 Wn.2d 772,776,725 P.2d 951 (1986)

(quoting State v. Jackson, 102 Wn.2d 689,694,689 P.2d 76 (1984)). A trial court's

ruling under ER 404(b) is reviewed for abuse of discretion. State v. De Vincentis, 150

Wn.2d 11, 17, 74 P.3d 119 (2003).

       Mr. Scantling argues, correctly, that the trial court failed to perform two steps of

the required analysis on the record: identification of the permitted purpose for the

evidence, and the ER 403 balancing. He also argues that substantively, neither a proper

purpose nor probative value exceeding undue prejudice were demonstrated by the State.

       "[I]fthe record shows that the trial court adopted one of the parties' express

arguments as to the purpose of the evidence and that party's weighing of probative and

prejudicial value, then the trial court's failure to conduct its full analysis on the record is

not reversible error." State v. Asaeli, 150 Wn. App. 543, 576 n.34, 208 P.3d 1136 (2009).

"[W]here a trial court rules on the admissibility of ER 404(b) evidence immediately after

both parties have argued the matter and the court clearly agrees with one side, an

appellate court can excuse the trial court's lack of explicit findings." State v. Stein, 140

Wn. App. 43, 66, 165 P.3d 16 (2007). Here, the court's explicit statement following

argument that it would admit the evidence "based on the representations, rather than

reciting them again, that [the State] made" adequately demonstrates its determination that

                                               9

No. 31940-7-111
State v. Scantling


the prior assault was admissible for the reasons argued by the State. RP (Sept. 9,2013) at

172.

       Evidence of the prior assault was admissible to show both motive and intent.

"Motive, for purposes of the admissibility of evidence under ER 404(b), 'goes beyond

gain and can demonstrate an impulse, desire, or any other moving power which causes an

individual to act.'" State v. Baker, 162 Wn. App. 468,473-74,259 P.3d 270 (2011)

(quoting State v. Powell, 126 Wn.2d 244,259,893 P.2d 615 (1995)). The court in Baker

distinguished State v. Saltarelli, 98 Wn.2d 358,359,655 P.2d 697 (1982), in which

evidence of a defendant's prior assault on a woman was deemed not relevant to his

motive for raping a different woman nearly five years later. It noted that, unlike in

Saltarelli, the defendant's prior assaults "were on the same victim as the assaults with

which he was charged and that the assaults were but months apart." Baker, 162 Wn.

App. at 474. Here, Mr. Scantling assaulted Mr. Palmer less than three months before the

murder.

       The evidence is also admissible to show intent. '" [E]vidence of quarrels between

the victim and the defendant preceding a crime, and evidence of threats by the defendant,

are probative upon the question of the defendant's intent.'" Powell, 126 Wn.2d at 261

(quoting State v. Parr, 93 Wn.2d 95, 102,606 P.2d 263 (1980)). This evidence is

particularly relevant where, as here, "malice or premeditation is at issue." Id. at 261.

'" Such evidence tends to show the relationship of the parties and their feelings one

                                             lO
No. 31940-7-III
State v. Scantling


toward the other, and often bears directly upon the state of mind of the accused with

consequent bearing upon the question of malice and premeditation.'" Id. at 261-62

(quoting State v. Davis, 6 Wn.2d 696, 705, 108 P.2d 641 (1940)).

       Although the trial court erred in failing to weigh prejudice on the record,

evidentiary errors under ER 404 are not of constitutional magnitude. State v. Jackson,

102 Wn.2d 689,695,689 P.2d 76 (1984). They are therefore harmless if, within

reasonable probabilities, the outcome of the trial would not have been different if the

error had not occurred. Id. The failure to weigh prejudice on the record can be harmless,

among other cases, "when the record is sufficient for the reviewing court to determine

that the trial court, if it had considered the relative weight of probative value and

prejudice, would still have admitted the evidence." State v. Carleton, 82 Wn. App. 680,

686,919 P.2d 128 (1996).

       There is no reason to believe that the trial court would have reached a different

result had it conducted an ER 403 1 balancing analysis. "Nearly all evidence is prejudicial

in the sense that it is offered for the purpose of inducing the trier of fact to reach one

conclusion and not another. This is not the sense in which the term 'prejudice' is used in

Rule 403." 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND



       1 ER  403 provides that relevant evidence may be excluded "if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence."

                                              11 

No. 31940-7-111
State v. Scantling


PRACTICE § 403.3, at 440 (5th ed. 2007). Yet this is the only sense in which Mr.

Scantling can seriously argue he was prejudiced by the evidence.

       Mr. Billado testified that the prior assault consisted of Mr. Scantling merely hitting

Frank with his fist and telling him to get out of the house:

       A      ... [T]he defendant came through barging through the door upset.
       Q      Did he knock on the door or-
       A      No.
       Q      And what happened after he barged in the door?
       A      Him and Frank got into a confrontation, argument. Well, it wasn't
       much of an argument. Frank was sleeping, too, and the defendant was 

       pretty upset, ... 


       A     He was hitting Frank. 

       Q     And how was he hitting Frank? 

       A      With his fist. 

       Q     And do you remember where on Frank's body he was hitting him? 

       A      Upper-from his chest up. 

       Q     And what did Frank do after the defendant hit him? 

       A     Put up a guard to stop the defendant from hitting him, and the 

       defendant backed off and told Frank to, "Get the fuck out of the house." 

       Q     And what did Frank do then? 

       A      Got up and walked out. 

       Q     And what did the defendant do? 

       A      Sat there and calmed down. 

       Q     And did you hear the defendant say anything else during that time 

       period? 

       A      No. 


RP (Sept. 9,2013) at 175-76.




                                             12 

No. 31940-7-111
State v. Scantling


       The jury would later learn from Ms. Krebs and from the statement Mr. Scantling

gave to police that Mr. Scantling committed the assault upon learning that Mr. Palmer,

whom he had considered a friend, had sexual relations with Ms. Krebs within a couple of

weeks after she and Mr. Scantling broke up. Jurors were unlikely to view evidence of a

fist fight under such circumstances as unduly prejudicial evidence that Mr. Scantling was

a "criminal type." State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995) (purpose of

ER 404(b) is to prevent the use of evidence of prior misconduct "to show that a defendant

is a 'criminal type', and is thus likely to have committed the crime for which he or she is

presently charged").

       The evidence did, however, have a tendency to make it more probable that Mr.

Scantling would intentionally harm Mr. Palmer in March 2013 than it would be without

the evidence-the test of relevance under ER 401. 2

       Mr. Scantling also argues the trial court erred when it allowed the State to question

Ms. Krebs about a prior threat he had made towards Mr. Palmer, eliciting the following

testimony:



       2 Citing State v. Thang, 145 Wn.2d 630, 41 P.3d 1159 (2002), Mr. Scantling
argues that the error in admitting the evidence was exacerbated by the State's mention of
the assault in its rebuttal closing argument. But in Thang, the court held that the evidence
had been admitted for an improper purpose, hence "exacerbating" the error by repeating
it. Here, the evidence of Mr. Scantling's prior assault of Mr. Palmer was admissible for
the proper purposes already discussed, so the State's remarks during closing argument
did not "exacerbate" any error.

                                             13 

No. 3 1940-7-II1
State v. Scantling


       Q     Were there any times when the defendant threatened Frank in a
       conversation with you? 

       A      Let me--yes is the answer, but I mean I can't remember exactly 

       when. 

       Q      Okay. 

       A      A couple weeks before. 

       Q      Tell us what he said. 

       A      He just said that he was going to kick his butt, basically, I guess. 

       Q       And was this before--did you ever tell Grant Scantling that you had 

       at least some sort of romantic or physical relationship with Frank? 

       A       At one time I did, and I told him that after we broke up. 

       Q       And was the defendant's threat to kick Frank's butt, was it before or 

       after you told that to Grant? 

       A       It was after. 


RP (Sept. 9, 2013) at 249-50. These questions were posed after the State persuaded the

trial court that Mr. Scantling's lawyer opened the door to testimony about the threats

through his own questioning. 3

       It was the following questions about text messaging between Ms. Krebs and Mr.

Scantling that the State argued opened the door:

       Q     Mr. Miller asked you about the text messages you had sent to Mr. 

      Scantling between the 19th and the 22nd when this happened. Had Grant 

      responded to you during those text messages? 

      A      Uh-uh, no. 

      Q      Do you recall the officers in your second interview asking about the 

      text messages? 

      A      Yes. 



      3 In a pretrial hearing, the State acknowledged it was not entitled to introduce the
evidence of prior threats without first getting permission from the court.

                                              14
No. 31940-7-111
State v. Scantling


       Q       And you told the officers that he was texting?
       A       Yeah. He was texting before that.
       Q       Okay.
       A       And 1 sent one text right before he showed up that, "We can't fool
       ourself. This isn't going to work," things like that, and that was the only 

       text I sent him, and then two days later, he showed up. 

       Q       Okay. And none of the texts that he sent you were threatening Frank 

       in any way? 

       A       No. 

       Q       None of them said, "I'm going to kill Frank"? 

       A       No, not at all. 


Id. at 245-46.

       To close the door after receiving only a part of the evidence not only leaves
       the matter suspended in air at a point markedly advantageous to the party
       who opened the door, but might well limit the proof to half-truths. Thus, it
       is a sound general rule that, when a party opens up a subject of inquiry on
       direct or cross-examination, he contemplates that the rules will permit
       cross-examination or redirect examination, as the case may be, within the
       scope of the examination in which the subject matter was first introduced.

State v. Gefeller, 76 Wn.2d 449,455,458 P.2d 17 (1969). Courts often characterize the

issue as one of waiver, stating "that any objection to the explanatory or contradictory

evidence is waived because the evidence was 'invited,' or because the objecting party

was the first to 'inject the issue' into the trial." 5 KARL B. TEGLAND, WASHINGTON

PRACTICE: EVIDENCE LAW AND PRACTICE § 103.15, at 80-81 (5th ed. 2007).

       Mr. Scantling contends that his lawyer's questioning was limited to text messages

in the days surrounding the shooting and the State's redirect examination should have

been similarly constrained. The State argues that by limiting the manner of


                                            15 

No. 31940-7-111
State v. Scantling


communication and timeframe, the defense could have left the jury with the impression

that Mr. Scantling never threatened Mr. Palmer at all.

       A trial court has wide discretion in determining the scope of redirect examination

and whether to admit or exclude evidence, and the appellate court will not reverse absent

a manifest abuse of that discretion. State v. Gallagher, 112 Wn. App. 601, 609, 51 P.3d

100 (2002). A trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds or reasons. Id. Here, a reasonable court

could conclude that if the State were not allowed to ask Ms. Krebs about threats made at

other times or in other ways, the defense "would have succeeded in painting a false

picture" that no such threats were made. Id. at 610; see also Ma eIe v. Arrington, 111
                                                                  J




Wn. App. 557,560,45 P.3d 557 (2002) (defendant left impression that the plaintiff had

fully recovered from his injuries by presenting evidence that he had discontinued his

medical treatment); State v. Price, 126 Wn. App. 617,642,109 P.3d 27 (2005). We find

no abuse of discretion.

                             Ineffective Assistance o/Counsel

       Mr. Scantling next contends he was denied effective assistance of counsel because

his defense attorney failed to object to the admission of the handwritten letters police




                                             16 

No. 31940-7-III
State v. Scantling


found following his arrest. 4 He argues that his attorney's failure to object amounts to

ineffective assistance of counsel because the letters were irrelevant and unfairly

prejudicial. To prevail on a claim for ineffective assistance of counsel, the defendant

must prove both (1) that counsel's performance was deficient and (2) that the deficient

performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.

Ct. 2052,80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1,8, 162 P.3d 1122

(2007).

       Deficient performance is that which falls "below an objective standard of

reasonableness based on consideration of all the circumstances." State v. McFarland,

127 Wn.2d 322,334-35,899 P.2d 1251 (1995). "The threshold for the deficient

performance prong is high, given the deference afforded to decisions of defense counsel

... [t]o prevail ... a defendant alleging ineffective assistance must overcome 'a strong

presumption that counsel's performance was reasonable.'" State v. Grier, 171 Wn.2d 17,

33,246 P.3d 1260 (2011) (quoting State v. Kyllo, 166 Wn.2d 856,862,215 P.3d 177

(2009». "When counsel's conduct can be characterized as legitimate trial strategy or




       4 Mr. Scantling also states that his lawyer deficiently failed to object to evidence
of the events of March 19. His argument in support of his ineffective assistance claim
relates only to admission of the letters, however. This court will not address asserted
errors that are unsupported. RAP 10.3; Spokane Research & Defense Fund v. W. Cent.
Cmty., 133 Wn. App. 602, 606, 137 P.3d 120 (2006) (declining to analyze contention for
which appellant provided no reasoned argument, reference to the record, or legal
authority supporting its argument).

                                             17
No. 31940-7-III
State v. Scantling


tactics, performance is not deficient." Kyllo, 166 Wn.2d 863. Prejudice exists if the

defendant can show that "there is a reasonable probability that, but for counsel's

unprofessional errors, the outcome of the proceeding would have been different."

Nichols, 161 Wn.2d at 8.

       In this case, Mr. Scantling's lawyer's decision not to object to the admission of the

handwritten letters can clearly be characterized as legitimate trial strategy. As earlier

observed, the entire defense effort was devoted to persuading the jury that Mr.

Scantling's actions on the night of the murder were not motivated by any premeditated

intent directed at Mr. Palmer but instead by his rage at Ms. Krebs. While the notes

portrayed Mr. Scantling in a negative light, his readily provable acts were going to

portray him in a negative light anyway. More important was the value of the notes in

casting doubt on Mr. Palmer being the object of Mr. Scantling's criminal intent on the

morning of the crime. As Mr. Scantling's own lawyer argued in closing:

              The letters. They were kind of interesting. The State showed
       you-I'm not going to go through them all, but the State showed you
       two-two ofthe-or two and a half of the letters--and you'll go through
       them all-and picked out the worst parts, but I ask you to please look at
       these carefully and see if in any of these letters, the one, two, three and then
       there's--there's the one that the State didn't show you for whatever
       reason--well, because the kids are mentioned. Because the kids are
       mentioned. Sol want you to look at these, and whether the kids are
       mentioned or not, the important thing ofall these letters, one, two, three
       andfour, is guess who's not mentioned? Frank Palmer or Michael Billado.
       In these writings that Grant did--and we've never denied he did the 

       writings.... 



                                              18 

No. 3 1940-7-II1
State v. Scantling


              ... [T]hey are horrible letters, but what they aren't is evidence of
       premeditation. They are not evidence of premeditation for killing Frank
       Palmer.
              . . . [NJone ofthe letters, none ofthe letters even mention, even by
       inference, mention Frank Palmer or Michael Billado. So is there any
       evidence ofpremeditation there? No.

RP (Sept. 11,2013) at 418-20 (emphasis added).

       Mr. Scantling's lawyer's urging the jurors to focus on the letters demonstrates that

he chose not to object to their admission for tactical reasons. No ineffective assistance of

counsel is shown.

                                 Prosecutorial Misconduct

       Mr. Scantling next contends that the prosecutor committed misconduct in making

three arguments that improperly appealed to the passion and prejudices ofthe jury and in

vouching for the credibility of a witness.

       A defendant claiming prosecutorial misconduct bears the burden of proving" 'that

the prosecutor's conduct was both improper and prejudicial in the context of the entire

record and the circumstances at trial.'" State v. Magers, 164 Wn.2d 174,191,189 PJd

126 (2008) (quoting State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003». A

failure to object to a prosecutor's improper comment at trial constitutes waiver of the

objection on appeal unless the misconduct'" is so flagrant and ill-intentioned that it

causes an enduring and resulting prejudice that could not have been neutralized by a




                                             19 

No. 3 1940-7-II1
State v. Scantling


curative instruction to the jury.'" State v. McKenzie, 157 Wn.2d 44, 52, 134 P .3d 221

(2006) (quoting State v. Brown, 132 Wn.2d 529,561,940 P.2d 546 (1997)).

       Justice for the victim and community. Mr. Scantling first argues that the

prosecutor committed misconduct by saying during opening statement that

       [o]ur role in this case is to seek justice. And we'll hear the evidence that
       will give you the tools to come back with a verdict that will give justice to
       Franklin Palmer and give justice to our community. And that verdict will
       be that the defendant is guilty.

RP (Sept. 5, 2013) at 255. The prosecutor similarly stated in closing argument that

"[t]his trial is seeking justice for Mr. Palmer, for our community, and to hold the

defendant accountable." RP (Sept. 11,2013) at 410. Mr. Scantling did not object to the

statements at trial but now characterizes them as urging the jury to convict based not on

the evidence, but on its sympathy for Mr. Palmer.

       Mr. Scantling cites only two cases in support of his claim that these remarks

improperly appealed to the jury's passions and prejudices: State v. Fisher, 165 Wn.2d

727,202 PJd 937 (2009) and State v. Claflin, 38 Wn. App. 847, 690 P.2d 1186 (1984).

Neither supports a finding of prosecutorial misconduct in this case.

       In Fisher, the prosecutorial misconduct found was in referring to evidence the

court had ruled was only conditionally admissible, where the condition supporting its

admission never occurred. It was not the type of argument made by the prosecutor but




                                             20 

No. 31940-7-III
State v. Scantling


the evidence improperly brought to the attention of the jury that constituted reversible

error.

         In Claflin, the prosecutor closed with argument that included a poem by an

anonymous rape victim "utilizing vivid and highly inflammatory imagery in describing

rape's emotional effect on its victims." 38 Wn. App. at 850. Although the court

acknowledged that "reference to the heinous nature of a crime and its effect on the victim

can be proper argument," it held that the poem contained allusions to matters outside of

any evidence presented and was "nothing but" an appeal to the jury's passion and

prejudice. Id. at 849-50.

         The prosecutor here did not tie his mention of "justice" to some improper basis on

which he was asking the jury to find guilt. "Urging the jury to render a just verdict that is

supported by evidence is not misconduct," and "courts frequently state that a criminal

trial's purpose is a search for truth and justice." State v. Curtiss, 161 Wn. App. 673, 701­

02,250 P.3d 496 (2011).

         The State's comments in this case are more similar to those made in State v.

Pastrana, 94 Wn. App. 463, 972 P.2d 557 (1999), abrogated on other grounds by State v.

Henderson, 180 Wn. App. 138, 142,321 P.3d 298, review granted, 180 Wn.2d 1022,328

P.3d 903 (2014) and State v. Greer, 62 Wn. App. 779, 786, 792, 815 P.2d 295 (1991). In

Pastrana, Division Two of our court held that the prosecutor did not act improperly by

stating to the jury, "You are going to tell this community whether or not shooting a gun

                                             21 

No. 3 I 940-7-II1
State v. Scantling


out a vehicle on the freeway at another moving vehicle and killing somebody is first

degree murder or ifit is not." 94 Wn. App. at 479. The court noted that the prosecutor

"did not ask the jury to render a decision inconsistent with its duty of applying the law to

the facts." Id.

       "Sad, gruesome pictures.   II   Mr. Scantling next argues that the prosecutor

committed misconduct by referring to the pictures of Mr. Palmer as sad and gruesome.

Here again, Mr. Scantling did not object to the prosecutor's statement at trial.

       The State's closing argument contained a lengthy discussion of the evidence

introduced as to Mr. Palmer's bullet wounds, taking the position that the three shots

supported the vigorously contested element of premeditation. The prosecutor introduced

his discussion of this evidence as follows:

       I apologize for showing these pictures to you, but I do remember we talked
       about this injury selection. I think one of the few promises that we asked
       of you and one ofthe few chances you had to get offjuror duty is say, "I'm
       not going to look at this; I'm not going to consider it," and I appreciate your
       word at the time that you're not going to hold it against us for showing you
       these sad, gruesome pictures.

RP (Sept. 11,2013) at 396 (emphasis added).

       Mr. Scantling does not explain how this statement amounted to misconduct. The

only authority Mr. Scantling relies on for support is Fisher, which as discussed above, is

inapposite.




                                               22 

No. 31940-7-111
State v. Scantling


       The photographs were gruesome. For the prosecutor to briefly acknowledge that

fact was not an improper appeal to the passions and prejudices of the jury. And again,

because defense counsel did not object, Mr. Scantling is required, and has failed, to show

that the remark was flagrant and ill-intentioned, or that it could not have been easily

cured by an instruction to the jury.

       "What message is the defendant giving his kids?" The third occasion on which

Mr. Scantling contends the prosecutor improperly appealed to the passions and prejudices

of the jury was when he asked the highlighted question in the course of the following

argument:

               A man who cares about his children does not have to sneak in the
       backyard while people are sleeping. A man who cares about his children
       would follow up with the offer of the mother to arrange a time with
       advance notice to arrange a visit. A man who cares about his children
       doesn't sneak into the backyard and pick up a cinderblock and hurl it into
       the sliding glass door shattering the glass. A man who cares about his
       children doesn't take the risk of the glass going into his children's hair. A
       man who cares about his children does not enter a bedroom and look at a
       bed and see three sleeping children, a four-year-old, a five-year-old and a
       10-year-old, a man who's motivated by a concern of his children does not
       see these three sleeping young children waking up and starting to cry and
       starting to scream, a man who cares about or is motivated by his children
       does not, while in the same bed with the three kids, take his hand and choke
       the children's mother within feet of the kids. What message is the
       defendant giving his kids?

               ... Choking the children's mother in front of them. Is that concern
       for the children?




                                             23 

No. 31940-7-111
State v. Scantling


RP (Sept. 11,2013) at 406 (emphasis added). Defense counsel did object to the

prosecutor's question about the message Mr. Scantling was giving. To establish

prejudice, he need only show that there is a substantial likelihood that any misconduct

affected the jury's verdict. Brown, 132 Wn.2d at 561.

       The State argued below and argues on appeal that the prosecutor was simply

"attempting to defuse an argument the defendant had set up throughout the trial, that the

defendant was just a harried man, who, after being denied seeing his children, snapped."

Br. of Resp't at 20.

       It is not improper to argue that the evidence does not support the defense theory.

Russell, 125 Wn.2d at 87. And a prosecutor may make a fair response to the arguments

of defense counsel. Id. The fact that a defendant's conduct is likely to arouse strong

emotions from the jury does not mean that a prosecutor must refrain from commenting on

the evidence as presented at trial. Fleetwood, 75 Wn.2d at 84. The prosecutor's

argument was not gratuitously dwelling on conduct likely to arouse jury indignation; he

was making a point about an incongruity between Mr. Scantling's defense and his

actions. We do not find the question to constitute misconduct.

       Finally, Mr. Scantling argues the prosecutor committed misconduct by improperly

vouching for the credibility of Ms. Krebs' ll-year-old son-the oldest of her three

children and the only one who testified at trial. During closing argument, the State

asserted that Ms. Krebs' son "was not on that stand lying." RP (Sept 11,2013) at 404.

                                            24 

No. 31940-7-111
State v. Scantling


       "Whether a witness has testified truthfully is entirely for the jury to determine."

State v. Ish, 170 Wn.2d 189, 196,241 P.3d 389 (2010). It is therefore misconduct for a

prosecutor to state a personal belief as to the credibility of a witness. State v. Warren,

165 Wn.2d 17,30,195 P.3d 940 (2008).

       In this case, we need not spend time on whether the prosecutor's statement was

improper (the State vigorously contends that, in context, it was not) because it was so

clearly not prejudiciaL Not having objected, Mr. Scantling must demonstrate that the

comment was so flagrant and ill-intentioned that corrective instructions would not have

cured its prejudicial effect.

       As the State correctly points out, Mr. Scantling conceded everything to which Ms.

Krebs' son testified. Defense counsel stated in closing argument:

              Grant is guilty of burglary in the first degree. I'm not going to waste
       your time with that. You should go back-I'm not going to tell you what to
       do. I would encourage you to go back, discuss it as long as as [sic] you
       need to, but Grant's guilty of that. The evidence and the law is clear.
              Grant is also guilty of murder. He is. He is absolutely guilty of
       murder. And I hope that that doesn't shock any of you. Based on the
       evidence that the [sic] come in, based upon the law, Grant is guilty of
       murder.

RP (Sept. 11,2013) at 411-12.

       Defense counsel even told the jury, "I don't disagree with much of what [the

State] said about [Ms. Krebs' son's testimony]. I think he was telling the truth as best he

remembered it." RP (Sept. 11,20 l3) at 417.


                                             25
No. 31940-7-II1
State v. Scantling


       Mr. Scantling concedes on appeal that "the only disputed issue at trial was whether

Mr. Scantling acted with premeditated intent to cause the death of another person that

resulted in Palmer's death." Reply Br. at 5. Ms. Krebs's son did not testify as to any

matter touching on that issue.

       There was literally no good reason for Mr. Scantling's lawyer to object and

suggest that this ll-year-old witness might have been lying. No prejudice is shown.

                                 Legal Financial Obligations

       Mr. Scantling's final challenge on appeal is to the trial court's imposition oflegal

financial obligations. Evidence of ability to pay was unnecessary to support the

mandatory financial obligations imposed by the court. State v. Lundy, 176 Wn. App. 96,

102, 308 P.3d 755 (20l3) (noting that, for these costs, "the legislature has directed

expressly that a defendant's ability to pay should not be taken into account").

       With respect to the legal financial obligations that were discretionary, Mr.

Scantling made no objection at the sentencing hearing and thereby failed to preserve a

claim of error. RAP 2.5(a); State v. Blazina, 182 Wn.2d 827,833,344 P.3d 680, (2015);

State v. Duncan, 180 Wn. App. 245,253,327 P.3d 614 (2014). We will not consider the

issue for the first time on appeal.

       Affirmed.




                                             26 

No. 31940-7-111
State v. Scantling


       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.

                                              2;~ttg>~?
                                             Siddoway, C.J.


WE CONCUR:




Brown, J.




Lawrence-Berrey, J.




                                            27 

