                                                                             FILED 

                                                                   FEBRUARY 2,2016 

                                                                In the Office of the Clerk of Cou rt 

                                                              W A State Court of Appeals, Division III 





             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                    DIVISION THREE 



STATE OF WASHINGTON,                         )
                                             )         No. 32723-0-III
                      Respondent,            )
                                             )
        v.                                   )
                                             )
DENNIS NEAL GASTON,                          )         UNPUBLISHED OPINION
                                             )
                      Appellant.             )


        FEARING, J.    Dennis Gaston appeals his conviction for child molestation in the

second degree on numerous evidentiary grounds. He also contends the State committed

misconduct during its closing statement. We hold that the trial court committed harmful

evidentiary error by admitting a statement uttered by Gaston during a police interview to

the effect that he suffered from "urges." We reverse his conviction and remand for a new

triaL
No. 32723-0-111
State v. Gaston


                                         FACTS

       On an unidentified day in the spring of2013, J.W., a minor, rode his bicycle from

his mother's house to his grandmother's residence in picturesque Goldendale. While

journeying across town, J.W. stopped when he saw an adult family friend, Dennis

Gaston, in the latter's driveway. J.W. parked his bicycle in Gaston's driveway and

walked to the carport where Gaston stood. The two conversed about cars, whether 1.W.

had a girlfriend, and whether J.W. engaged in sex with a girl. According to J.W., Gaston

reached down 1. W: s loose blue jeans, underneath his underwear, and rubbed his penis

for one to two minutes. Gaston asked J.W. if J.W. was getting hard. J.W. did not reply.

      On August 29,2013, Goldendale Police Officers Dwayne Matulovich and Leo

Lucatero questioned Dennis Gaston at the Goldendale police station. The officers

recorded and transcribed the interview. During the station interview, Gaston first claimed

he only touched J.W. on the shoulder. Officer Lucatero prefaced the questioning with the

kindly remarks:

              Now, Dennis, the reason-the reason we're seriously looking at this
      is because we-we've been starting to see a pattern. And urn, I'm gonna be
      straight up with you about that. I had a situation here in 2010 with
      (Norman Escari), and it was almost identical to this, almost identical. And
      uh, we had a person come in here, urn, awhile back, I was advised that uh,
      was complaining about urn, uh, something to do with (BJ. Fox), that you
      were trying to get with him or something like that, and uh, so we're-we're
      starting to see a pattern here, and we're-we're concerned more than
      anything. You know, if- ifthey're-if-ifyou've got a problem with
      something, Dennis .... You know, a lot of people have problems, you
      know, that are serious problems sometimes, sometimes not, but there­

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No. 32723-0-II1
State v. Gaston


       there-there are people out there that, you know, we all need help in certain
       areas in our life.

              You know, we all sometimes come up with these issues that we've
       got to deal with. If you've got anything like that, Dennis, you know, urn,
       let's-let's try to nip it in the bud, let's try-urn, there-there is things
       that-that we can-we can do as-as law enforcement and through the
       legal system to help you with those problems if-if you've got those
       problems, but the-the reason, you know, this isn't just a knock and talk.
       The reason I-you know, last time I was able to just go talk to you is we're
       looking at this a little bit more on the serious side, because we're starting to
       see a pattern here. And we're having a hard time believing that this boy
       just came up and made this whole thing up.

Ex. 1 at 5-6.

       Officer Leo Lucatero spoke to Dennis Gaston in the third person:

                 You know, but we're giving you an opportunity right now to, you
        know, tell us straight up, you know, if you-if something happened, you
        know, urn, let's talk about it, let's deal with it. If Dennis has got any issues
        that he needs to deal with, let's-let's get you the assistance you need, if
        that's the case, get you the help you need. You know, we don't-we don't
        hate you. We're not trying to be mean or-or give you a hard time, but if
        there's-there's anything going on, Dennis, where something did happen,
        let's-let's lay our cards out on the table, let's-let's be straight up with it,
        and if we need to get Dennis some help, let-let-let's do that. Let's do that
        to, you know, prevent something like this from happening again, you know,
        if that' s-if that's the case. But urn, you know, I-I dealt with the
      , (Norman) case and got all his information and talked to you, and then when
        I come in today, I hear about this and I hear the details, and uh, you know,
        Officer Matulovich read it too, you know, and uh, we uh, compared notes
        and-and they're-it's just-for me it's just too many similarities to just
        shrug it off and say they're coincidence. Urn, you know, we need­
        we're-we need to get down to the bottom of this and figure out what
        happened. Now we're giving you the opportunity right now, Dennis, to­
        to be straight up with us if something did happen. Did something happen?

Ex. at 6.

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No. 32723-0-111
State v. Gaston


       Dennis Gaston then conceded that he touched J.W. on the leg and later confessed

to touching the boy on the thigh. He denied putting his hand in J.W.'s pants. Officer

Lucatero declined Gaston's offer to touch the officer's leg in order to illustrate how

Gaston touched J. W.

       During the police station interview, Officer Leo Lucatero next told Dennis Gaston

that an adult man in the community reported to police that Gaston solicited sex from him.

Ex. at 8-9. Lucatero added:

              ... But we're giving you an opportunity right now, Dennis, that, you
      know, if there's a problem, if you're dealing with something, you're having
      a hard time with something-maybe you have urges or something like that,
      urn, let's help that. Let's help you, let's-let's help Dennis, let's get this
      taken care of, let's get it, you know, if you need, you know, treatment,
      anything like that. You know, a lot of people don't like to hear that, but,
      you know, it's not gonna get better, it's gonna get worse. You know,
      'cause one situation was adult; now it's a kid, you know what I'm saying.

              [W]e're not here to say you're a bad person, Dennis, we're not. You
      know, I've known you for a long time. You're a good guy, you've always
      been real helpful. It's just that Dennis has some problems he needs to take
      care of. Let's do it now while it's in early stages, because you might even
      have it on your mind-you know, a lot of people-I've seen it over and
      over where people think, oh, this is a scary situation, you know, I'mjust
      gonna say 1 didn't do it, and 1 just won't do it anymore. But then those
      urges take you over.

Ex. 1 at 10-11. During legal proceedings, Dennis Gaston contended that the two officers

unfairly and repeatedly equated soliciting homosexual sex with pedophilia.

      After Officer Leo Lucatero repeatedly told Dennis Gaston that the legal system

could and would help him, Gaston discussed dealing with "urges." The admissibility at

                                             4

No. 32723-0-111
State v. Gaston


trial of Gaston's admission of urges is the principal issue on appeal. Gaston informed the

two Goldendale officers:

              I've had urges. I'm not-I'm not gonna lie to you, either one of you,
       'cause 1 like both of you and respect both of you.

              I've had urges. 1 haven't acted on them like 1 wanted to, you know,
       'cause 1 know it's wrong.

               · .. but 1 thought there is no help, nobody-I don't think anybody
       really cares.

              You know, and 1 feel like if 1 did do something bad, I'd wind up
       going to jail, I'd wind up, you know.

              · .. [I]t would ruin my marriage and everything else-that why 1
       haven't.
              · .. That's the only thing that probably stopped me, is ...

              · .. the fact that 1 have a good wife.

             But, you know, 1 just feel like there's, you know, other than my
       world 1 work my ass off because-to keep from the urges.


Ex. 1 at 12-13.

       Late in the interview, Dennis Gaston mentioned being sexually abused as a boy by

an older male cousin. He then added:

              Well, and I've wanted [help]. I've actually went to counselors
       before and-they don't help, you know.

Ex. 1 at 16. Officer Leo Lucatero then asked Gaston to disclose his interaction

with J.W. during the spring day. Gaston would again only concede touching J.W.


                                              5

No. 32723-0-111
State v. Gaston


on the thigh. Lucatero stated he did not believe Gaston, because Gaston had

already conceded "urges." Ex. 1 at 17. Lucatero claimed to look into Gaston's

eyes and see pain in Gaston's soul. Gaston insisted that all he could remember is

touching J.W. on the thigh.

                                      PROCEDURE

       The State of Washington charged Dennis Gaston with child molestation in the

second degree. Dennis Gaston moved in limine, pursuant to ER 402 and 403, to exclude

any mention regarding allegations of same sex sexual contact between him and adults.

The trial court granted the motion.

       The trial court conducted a CrR 3.5 hearing to determine the admissibility of

Dennis Gaston's statements to the police during the August 29 interview. The State

wished to read to the trial jury Gaston's comments about his urges. Dennis Gaston

objected to the admission of these statements by referencing the order in limine

previously entered by the trial court. Gaston added that his comments about urges

constituted ER 404(b) evidence and was inadmissible for this additional reason. He

contended that his comment did not amount to a confession of the crime, since he told the

police officers that he did not act on his urges. In response to Gaston's ER 404(b)

argument, the State did not contend that the testimony was admissible under one of the

enumerated purposes in the evidence rule. This lack of a response is a significant factor

in this appeal.

                                            6

No. 32723-0-III
State v. Gaston


       After hearing argument, the judge conducted an ER 403 balancing test on the

record, saying:

               It's a close call, and it's a potentially serious one. It's very
       probative, I think, of-of a state of mind that from the state's point of view
       might lead him to want to-solicit, or whatever the proper word is, some
       kind of physical contact with the child, which is what allegedly occurred in
       this case-not even for very many minutes, I don't think, but it was­
       contact that the state alleges was illegal, for the reasons that we all know.
               It's also-very prejudicial. I don't know how a jury would not­
       view this in the light favorable to the state's theory. Except to the extent
       that in his statement he does say, "That's why I haven't done it." He does
       kind of-suggest that although he's had urges he's never acted on them.
       That might work in the defendant's favor. But over all it seems pretty
       prejudicial to the defendant. Maybe even the knock-down blow; I don't
       know for sure.
               But having made that analysis, I think that the probative value
       outweighs the prejudicial nature. He was Mirandized-I guess we'll find
       out. This was in the form of a confession, or a long, rambling colloquy
       with officers. He volunteered this information. He just spoke plainly about
       it. And I agree with [the State] that it's in the context of the charge that was
       being alleged with the young man.
                So I'm going to allow those comments in.

Verbatim Report Proceedings (VRP) at 22-23 (emphasis added). In its ruling, the

trial court made no mention ofER 404.

       Dennis Gaston also moved in limine, based on ER 801 and 802, to preclude Julie

Woolery, J.W.'s mother, from testifying because Gaston expected her to testify about

statements made by J.W. regarding the alleged crime. The trial court ruled that the

mother could testify to some of the events occurring after the alleged crime, but Woolery

could not testify to what J. W. told her.


                                              7

No. 32723-0-111
State v. Gaston


       During trial, Julie Woolery, J.W.'s mother, testified to events after the encounter

between J.W. and Dennis Gaston. Dennis Gaston repeatedly objected during the

testimony. Woolery testified she received a startling phone call from J.W.'s stepmother.

The trial court sustained an objection to Woolery testifying to the contents of the call.

Woolery, with her friend Sunday Sutton, retrieved J.W. Sutton is a mental health

professional. The trial court, based on an order in limine, did not allow Woolery to

testify what J. W. told her after she retrieved him, but the court allowed her to testify that

J.W. told her something and this unidentified something led to her retrieving him.

       J.W. and Julie Woolery called the police to report the incident. The police later

interviewed J.W. at his home. The incident upset J.W. Woolery took J.W. to counseling.

       At trial, J.W. testified inconsistently about the positioning of Dennis Gaston and

him during the touching. J. W. first declared that Gaston gave him a "side hug" and later

averred that the two stood facing each other. J.W. declared that he did not wish Gaston to

feel uncomfortable during the incident. The State elicited testimony from J.W. about

why he did not want Gaston to feel uncomfortable:

               A Well, I looked down to see where he was putting his hand, and
       then 1 looked back up at him to acknowledge what he was doing, you know,
       'cause 1 didn't-at that time 1 didn't really want him to feel uncomfortable
       -what he was doing. And 1 didn't say anything because 1 didn't-
               Q What do you mean, you didn't want him to feel uncomfortable.
               A Well, he was enjoying what he was doing, but­
               [Defense Counsel]: Your Honor, I'm going to object as far as it
       being speculative. 

               THE COURT: If you could rephrase the question. 


                                              8

No. 32723-0-III
State v. Gaston


              [Prosecutor]: Okay.
              Q What do you mean that you didn't want him to feel­
      uncomfortable in-when you were looking at him. We can 't-You don't
      really know what he was feeling, so-­
              [Defense Counsel]: Your honor, I'm going object as far as the form
      of the question. It's now coaching.
             THE COURT: Overruled.
             Q I just want you to say why you were not wanting him to feel
      uncomfortable.
             A He was enjoying what he was doing and I don't like seeing
      people, you know, uncomfortable or anything, and-not only that but I
      didn't say anything because I wasn't sure what to say.

VRP at 88-89.

      During trial, Officer Dwayne Matulovich read to the jury portions of the transcript

of the recorded police station interview of Dennis Gaston. Goldendale Officer Dwayne

Matulovich read the following excerpt about "urges" to the jury:

             [Gaston]: I've had urges. I'm not-I'm not gonna lie to you, either
      one of you, 'cause I like both of you and respect both of you.

             I've had urges. I haven't acted on them like I wanted to, you know,
      'cause I know it's wrong.

              · .. but I thought there is no help, nobody-I don't think anybody
      really cares.

             You know, and I feel like if I did do something bad, I'd wind up
      going to jail, I'd wind up, you know.

             · .. [I]t would ruin my marriage and everything else-.that's why I
      haven't.

             That's the only thing that probably stopped me, is ...

             · .. the fact that I have a good wife.

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No. 32723-0-III
State v. Gaston



              But, you know, I just feel like there's, you know, other than my
       world I work my ass off because-to keep from the urges.

Ex. 1 at 12-13.

       During closing arguments, the prosecution uttered the following comments that

Dennis Gaston contends constitute prosecutorial misconduct:

             Sexual contact is described in Jury Instruction 9 as any touching­
      any touching--ofthe sexual or other intimate parts of a person done for the
      purpose of gratifYing sexual desires of either party.
             And if you will recall, lW. testified that as this event was happening
      Mr. Gaston was saying, "Are you getting hard," "Are you enjoying this."
      So it doesn't necessarily have to be that Mr. Gaston was enjoying this,
      although there was some testimony to the effect that he was. If it's done for
      gratifYing the sexual desires of either party. That's something to keep in
      mind .

            . . . There are some tremendous consistencies in what [l.W.] said.
      And that is what I want to focus on, here.

             Hands down pants. Under his underwear. Rubbed his penis. Asked
       ifhe was enjoying it. Asked ifhe was getting hard .

             . . . A once in a lifetime event. What was the once in a lifetime
      event. It was that a man put his hands down lW.'s pants, rubbed his penis
      up and down, and asked him ifhe was enjoying it and he was getting hard.

VRP at 172-73, 179, 191 (emphasis added).

      Also during closing, the State remarked about lW.'s candor and a difficulty in

adults' comprehending incidents children encountered:

            He's thirteen years old when this is going on. Now he's a very self­
      possessed thirteen years old, he's very direct. One of the things you may
      have noticed is, you know, he makes eye contact and he answers very

                                            10 

No. 32723-0-111
State v. Gaston


       directly. Sometimes he's not asked-answering the question that the
       questioner seems to think they're asking, but he's answering the questions.
       And he's very candid about it.
              In/act his candor is-is a little remarkable in that he disclosed to
       one of Mr. Gaston's attorneys that there were times when he did lie,
       when-when he was afraid he was going to get in trouble.

               Ladies and gentleman, 1 know you'll do the right thing. You've
       been very attentive through all of this. And it's difficult facts. These are
       difficult things to-to think that our children go through . ...

              · .. But he did not back down on what he was saying, and he
       continued to answer candidly.

VRP at 175-76,197 (emphasis added).

       The jury found Dennis Gaston guilty of child molestation in the second degree.

The judge sentenced him to eighteen months in prison and thirty-six months' community

custody. One of Gaston's community custody conditions ordered him not to "purchase,

possess or view any pornographic material." Clerk's Papers (CP) at 98.

                                 LA W AND ANALYSIS

      Issue 1: Whether the trial court erred when admitting the "urges" testimony

against an ER 402 relevancy objection?

      Answer 1: No.

      Dennis Gaston contends that the trial court erred by admitting his "urges"

comments during the police interrogation because the evidence was irrelevant under ER

401 and 402, was unduly prejudicial under ER 403, and was prohibited as character or

past acts testimony under ER 404. We hold that the trial court did not abuse its discretion

                                             11 

No. 32723-0-II1
State v. Gaston


when ruling the evidence to be relevant and not unduly prejudiciaL We hold the trial

court committed error under ER 404 by admitting the testimony. We first address the

relevancy objection.

       Dennis Gaston argues that the State used his confession to "urges" as a statement

conceding to pedophilic cravings, when he was only admitting to homosexual

inclinations. Thus, he contends his comments about yearning lacked relevance to the

charge of child molestation. The State argues that Gaston's acknowledgment during the

police interview is relevant because the urges more likely related to adolescent males,

rather than encounters with adult males. Both parties may labor under the false

alternative that Gaston's acknowledgment of impulses related to either adults or

adolescents and did not pertain to both.

       Under ER 401:

             "Relevant evidence" means evidence having any tendency to make
      the existence of any fact that is of consequence to the determination of the
      action more probable or less probable than it would be without the
      evidence.

Evidence which is not relevant is not admissible. ER 402. Relevance presents a very low

bar. Mut. ofEnumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wn. App. 702, 729, 315 P.3d

1143 (2013), review denied, 180 Wn.2d 1011, 325 P.3d 914 (2014).

      To be relevant, evidence must meet two requirements: (1) the evidence must have

a tendency to prove or disprove a fact (probative value), and (2) that fact must be of


                                            12 

No. 32723-0-III
State v. Gaston


consequence in the context of the other facts and the applicable substantive law

(materiality). Davidson v. Metro. Seattle, 43 Wn. App. 569,573, 719 P.2d 569 (1986).

The relevancy of evidence will depend on the circumstances of each case and the

relationship of the facts to the ultimate issue. Chase v. Beard, 55 Wn.2d 58, 61, 346 P.2d

315 (1959), overruled on other grounds, 100 Wn.2d 729, 675 P.2d 1207 (1984).

Relevant evidence encompasses facts that present both direct and circumstantial evidence

of any element ofa claim or defense. State v. Rice, 48 Wn. App. 7, 12, 737 P.2d 726

(1987). Facts tending to establish a party's theory ofthe case will generally be found to

be relevant. State v. Mak, 105 Wn.2d 692, 703, 718 P.2d 407 (1986).

       This court reviews relevance evidentiary rulings for manifest abuse of discretion.

State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). Discretion is abused only when

no reasonable person would have decided the issue as the trial court did. State v. Rice,

110 Wn.2d 577, 600, 757 P.2d 889 (1988).

       Given the background of Dennis Gaston's acknowledgment, the subject of his

urges could be interpreted as adolescent males, adult males, or both. A reasonable person

could infer that Gaston's confession referred to pedophilic urges, and this inference

would tend to make it more likely that he would have touched a child for sexual

gratification.

       Issue 2: Whether the trial court erred when admitting the "urges" testimony

against an ER 403 prejudice objection?

                                            13
No. 32723-0-II1
State v. Gaston


       Answer 1: No.

       Dennis Gaston also argues that, even ifhis confession to urges is relevant, reading

his admission to the jury violated ER 403. The State contends that Gaston's yearnings

acknowledgment is not substantially more prejudicial than probative. We agree with the

State or at least agree that the trial court could reasonably accept the State's contention.

       ER 403 declares:

               Although 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. 


       When administering ER 403, we recognize that nearly all evidence worth offering 


in a contested case will prejudice one side or the other. Carson v. Fine, 123 Wn.2d 206,

224,867 P.2d 610 (1994). Evidence is not rendered inadmissible under ER 403 just

because it may be prejudicial. Carson v. Fine, 123 Wn.2d at 224. Under ER 403, the

court is not concerned with this ordinary prejudice. Carson v. Fine, 123 Wn.2d at 224.

The trial court may reduce prejudice in the jury by proper instructions concerning its duty

to weigh credibility and the standard admonition not to permit sympathy or prejudice to

affect the verdict are the tools to direct the jury to a proper consideration of the evidence.

Carson v. Fine, 123 Wn.2d at 224-25.

       Courts variously define "unfair prejudice" for purposes ofER 403. Such prejudice

is caused by evidence of scant or cumulative probative force, dragged in by the heels for


                                              14 

No. 32723-0-III
State v. Gaston


the sake of its prejudicial effect. United States v. Roark, 753 F .2d 991, 994 (11 th Cir.

1985). In determining prejudice, the linchpin word is "unfair." State v. Rice, 48 Wn.

App. at 13 (internal quotation marks omitted). Washington cases agree that unfair

prejudice is caused by evidence likely to arouse an emotional response rather than a

rational decision among the jurors. Carson v. Fine, 123 Wn.2d at 223 (1994); Lockwood

v. AC & S, Inc., 109 Wn.2d 235,257, 744 P.2d 605 (1987); State v. Cameron, 100 Wn.2d

520,529,674 P.2d 650 (1983).

       Under ER 403, the burden of showing prejudice is on the party seeking to exclude

the evidence. Carson v. Fine, 123 Wn.2d at 225. There is a presumption favoring

admissibility under ER 403. Carson-v. Fine, 123 Wn.2d at 225. Because of the trial

court's considerable discretion in administering ER 403, reversible error is found only in

the exceptional circumstance of a manifest abuse of discretion. State v. Gould, 58 Wn.

App. 175, 180,791 P.2d 569 (1990).

       The Washington Supreme Court has declared that, unlike a ruling to an objection

under ER 404(b), the trial court need not weigh its decision on the record in the instance

of an ER 403 objection. Carson v. Fine, 123 Wn.2d at 223. We question the wisdom of

this declaration, because the reviewing court lacks the ability to determine whether the

trial court abused its discretion when performing an ER 403 analysis unless we know

from the trial court's oral comments that it weighed the appropriate factors. We need not

address the prudence of the declaration in this appeal, however, since our trial court, on

                                             15 

No. 32723-0-111
State v. Gaston


the record, balanced the probative value versus the prejudicial effect of the admission of

the urges testimony. As reasoned by the trial court, a jury could reasonably conclude

that, based on the disclosure, Dennis Gaston held a sexual attraction to underage boys. A

jury might reasonably conclude that a defendant will not molest an adolescent boy unless

the defendant holds such inclinations. Although Gaston's concession was highly

prejudicial, the acknowledgment was highly probative to the charge of child molestation

in the second degree. We do not second guess the trial court, when the court conducted a

balancing test on the record that comports with ER 403.

       Issue 3: Whether Dennis Gaston preserved/or appeal an objection under ER

404(b) to his "urges" acknowledgment?

      Answer 3: Yes.

       Dennis Gaston next contends that the trial court erred by failing to conduct an ER

404(b) analysis on the record about the admissibility of the "urges" testimony. ER 404

concerns the admissibility of a defendant's character and prior acts. We must address a

procedural defense raised by the State, before reaching the merits of Gaston's argument.

The State contends that Gaston never raised an ER 404(b) objection during the motion in

limine hearing or at trial and only objected on the grounds of relevance and prejudice.

We disagree.

      RAP 2.5(a) states "[t]he appellate court may refuse to review any claim of error

which was not raised in the trial court." Nevertheless, the Washington Supreme Court

                                            16 

No. 32723-0-111
State v. Gaston


has held that an objection based on prejudice suffices to preserve for appeal a challenge

based on ER 404(b), because the challenge to the evidence suggests that the defendant is

prejudiced by the admission of evidence of prior bad acts. State v. Mason, 160 Wn.2d

910,933, 162 P.3d 396 (2007).

       During the erR 3.5 hearing, Dennis Gaston objected to the admission as evidence

of his "urges" acknowledgment in part on the ground of prejudice. He went one step

further and additionally mentioned ER 404(b). Dennis Gaston did not to object to the

urges testimony during trial because of his earlier motion in limine. Pretrial motions, like

motions in limine, create standing objections to the introduction of specific evidence. See

Millican v. N.A. Degerstrom, Inc., 177 Wn. App. 881, 889,313 PJd 1215 (2013), review
                       t

denied, 179 Wn.2d 1026,320 PJd 718 (2014); State v. Powell, 126 Wn.2d 244, 255,893

P.2d 615 (1995); State v. Ramirez, 46 Wn. App. 223, 229, 730 P.2d 98 (1986).

      Issue 4: Whether the trial court erred byfailing to conduct an ER 404(b) analysis

for the "urges" testimony?

      Answer 4: Yes, but we hold that the testimony ofurges was inadmissible

regardless ofwhether the trial court performed an ER 404(b) analysis since the State

does not contend an ER 404(b) exception applies.

      The trial court did not address Dennis Gaston's challenge to Gaston's concession

to urges under ER 404(b). The trial court balanced the prejudicial effect to the probative

impact of the evidence under ER 403, but did not on the record analyze all of the factors

                                            17 

No. 32723-0-III
State v. Gaston


required under ER 404. On appeal, Gaston argues that this omission was prejudicial error

and thus he deserves a new trial. The State responds that the "urges" confession does not

refer to an act, so ER 404(b) does not apply in this context.

       Dennis Gaston's challenge anticipated that the State would argue that an ER

404(b) exception applies, thereby requiring an analysis on the record. Nevertheless, the

State forwards no such contention. Therefore, no ER 404(b) analysis is needed.

       We disagree with the State's contention that "urges" is not an "act" blanketed by

ER 404(b). ER 404 reads, in part:

              (a) Character Evidence Generally. Evidence of a person's
       character or a trait of character is not admissible for the purpose of proving
       action in conformity therewith on a particular occasion, except:
              (1) Character ofAccused. Evidence of a pertinent trait of character
       offered by an accused, or by the prosecution to rebut the same;

              (b) Other Crimes, Wrongs, or Acts. Evidence of other crimes,
       wrongs, or acts is not admissible to prove the character of a person in order
       to show action in conformity therewith. It may, however, be admissible for
       other purposes, such as proof of motive, opportunity, intent, preparation,
       plan, knowledge, identity, or absence of mistake or accident.

       ER 404(b) includes not only prior bad acts and misbehavior but any evidence

offered to show the character of a person to prove the person acted in conformity with

thatcharacteratthetimeofacrime. Statev. Foxhaven, 161 Wn.2d 168,175, 163P.3d

786 (2007); State v. Everybodytalksabout, 145 Wn.2d 456,466,39 P.3d 294 (2002).

Thus, the provisions ofER 404(a) overlap with the dictates ofER 404(b). In fact, ER

404(b) recognizes that evidence of prior acts is typically used by the State to show the

                                             18 

No. 32723-0-111
State v. Gaston


defendant suffers from a particular character defect. The very purpose of ER 404 is to

exclude character evidence. In re Meistrell, 47 Wn. App. 100, 109, 733 P.2d 1004

(1987). In tum, ER 404(a) bars evidence ofa person's character or a trait of character for

the purpose of proving action in conformity therewith on a particular occasion. In no

case, regardless of its relevance or probativeness, may the evidence be admitted to prove

the character of the accused in order to show that he acted in conformity therewith. State

v. Gresham, 173 Wn.2d 405,420-21,269 P.3d 207 (2012).

       Evidence of one's character or prior acts may be admissible for some purposes

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. ER 404(b). If the State seeks to introduce evidence for

such an alternate purpose, the trial court must perform an analysis under ER 404(b).

Before the trial court admits evidence of prior misconduct under ER 404(b), it must (1)

find by a preponderance of the evidence that the prior misconduct occurred, (2) identify

the purpose for admitting the evidence, (3) determine the relevance of the evidence to

prove an element of the crime, and (4) weigh the probative value of the evidence against

its prejudicial effect. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009); State v.

DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). The trial court must conduct the

above analysis on the record. State v. Asaeli, 150 Wn. App. 543, 576 n.34, 208 P.3d

1136 (2009).

       Since one of the elements of the ER 404(b) balancing test is the court's

                                            19 

No. 32723-0-111
State v. Gaston


identification of the purpose for admitting the evidence, the State must isolate for the trial

court the ER 404(b) purpose or exception it contends applies to permit admissibility.

Under an ER 404 analysis, a character trait may be admitted only if one of the exceptions

applies. State v. Gresham, 173 Wn.2d at 421 (2012). The State did not address ER

404(b) below and does not argue, on appeal, that any of the qualifying purposes applies.

The State only argues that ER 404 does not cover Gaston's urges admission because

urges are not "acts." Thus we do not address whether "urges" could be considered

motive testimony under ER 404(b). Furthermore, an ER 404(b) analysis is immaterial in

Dennis Gaston's prosecution. If the State contends no exception applies, the trial court

should have precluded the evidence and not engaged in any ER 404(b) analysis.

       The State also contends that it introduced the admission of Dennis Gaston simply

as a statement and not for the purpose of establishing that Gaston actually had urges or

that he acted on those urges. The State fails to explain what relevance the statement

would have to the charges brought against Gaston, assuming the State's contention to be

true. ER 404(b) is designed to prevent the State from suggesting that a defendant is

guilty because he or she is a criminal-type person who would be likely to commit the

crime charged. Foxhaven, 161 Wn.2d at 175; State v. Lough, 125 Wn.2d 847, 859, 889

P.2d487 (1995). The only purpose behind the State's introduction of Dennis Gaston's

admission of inclinations would be for the purpose of telling the jury that Gaston

possesses a trait that would lead him to commit the crime charged.

                                             20 

No. 32723-0-III
State v. Gaston


       Issue 5: Whether evidence ofDennis Gaston's urges was prejudicial?

       Answer 5: Yes.

       A holding that the trial court committed error by permitting testimony of Dennis

Gaston's impulses does not end our analysis. Evidentiary error is only grounds for

reversal ifit is prejudicial. State v. Bourgeois, 133 Wn.2d 389, 403,945 P.2d 1120

(1997). An error is prejudicial if, within reasonable probabilities, had the error not

occurred, the outcome ofthe trial would have been materially affected. State v. Asaeli,

150 Wn. App. at 579. Stated clearer, the error constitutes prejudice ifit probably

impacted the jury verdict.

       Other than Dennis Gaston's recorded police interview, the State of Washington

presented J.W.'s inconsistent testimony to establish criminal conduct of Gaston. In other

words, the State lacked strong evidence of the crime. Thus, the "urges" testimony was

likely detrimental to Dennis Gaston's defense. In the words of the trial court, the

evidence could be "the knock-down blow." Thus, we reverse Dennis Gaston's

conviction.

       Issue 6: Whether Dennis Gaston's trial counsel was ineffective by failing to

preserve his ER 404(b) objection to his "urges" testimony or for failing to request a

limiting instruction for the testimony?

       Answer 6: We do not address this question.




                                             21 

No. 32723-0-III
State v. Gaston


       Dennis Gaston contends that, if trial counsel failed to preserve for appeal his ER

404(b) objection, he had ineffective assistance of counsel. He also contends that his trial

counsel was ineffective because he failed to request an ER 105 limiting instruction for the

urges testimony. We need not address these two contentions, since we hold that counsel

preserved the objection and we sustain the objection on appeal.

       Issue 7: Whether Dennis Gaston preserved at trial the argument that the trial

court erred by admitting J. W. 's testimony about Dennis Gaston's feelings?

       Answer 7: Yes.

       Dennis Gaston contends that the trial court erred by admitting testimony from J. W.

in which he speculates about how Gaston felt during the assault. We have already ruled

that Gaston's conviction must be reversed and thus need not address this additional

assignment of error. We address the assignment, nonetheless, for purposes of instruction

for the new trial on remand. We address other assigned errors later for the same reason.

       The State argues that Gaston waived this assignment of error by failing to renew

his objection to a reworded question at trial. The relevant passage from trial reads:

              Q [the State] What do you mean, you didn't want him to feel
       uncomfortable.
              A [J.W.] Well, he was enjoying what he was doing, but­
              [Defense Counsel]: Your Honor, I'm going to object as far as it
       being speculative.
              THE COURT: If you could rephrase the question.
              [Prosecutor]: Okay.
              Q What do you mean that you didn't want him to feel­
       uncomfortable in-when you were looking at him. We can't-You don't

                                            22 

No. 32723-0-III
State v. Gaston


       really know what he was feeling, so­
               [Defense Counsel]: Your honor, I'm going object as far as the form
       of the question. It's now coaching.
              THE COURT: Overruled.
              Q I just want you to say why you were not wanting him to feel
       uncomfortable.
              A He was enjoying what he was doing and I don't like seeing
       people, you know, uncomfortable or anything, and-not only that but I
       didn't say anything because I wasn't sure what to say.

VRP at 88-89.

       The State focuses on the last question posed to lW. in this exchange and notes

that Dennis Gaston did not specifically raise an objection to the question. The State

claims it rephrased an earlier question to which Gaston objected and that the lack of

objection to the second question implies that Gaston approved of the rephrasing.

Actually, the second remark by the State was not in the form of a question but a direction

to lW. as to the nature of the previous question. Alex Trebek would have been unhappy.

Thus, there was no question to which Gaston could object. Since the trial court had

already overruled objections to two questions, we hold that Gaston preserved his

objection for appeal.

       Without proper objection, there is no basis for appellate review. State v. Boast, 87

Wn.2d 447,451,553 P.2d 1322 (1976). When a party objects to evidence in a pretrial

motion in limine, the party need not object at trial to the introduction of the same

evidence. State v. Powell, 126 Wn.2d at 255 (1995); Millican v. N.A. Degerstrom, Inc.,

177 Wn. App. at 889 (2013); State v. Ramirez, 46 Wn. App. at 229 (1986). The same

                                             23 

No. 32723-0-III
State v. Gaston


rule should apply when a party seeks to admit the same evidence to which the opposing

party immediately before objected during trial.

       Issue 8: Whether the trial court erred by admitting 1. W. 's testimony about Dennis

Gaston's feelings?

       Answer 8: Yes.

       Dennis Gaston contends that lW.'s testimony that Gaston "enjoyed" the touching

was inadmissible as opinion testimony unsupported by a foundation. We agree.

       ER 701 governs lay witness opinion testimony; the rule declares:

               If the witness is not testifYing as an expert, the witness' testimony in
       the form of opinions or inferences is limited to those opinions or inferences
       which are (a) rationally based on the perception of the witness, (b) helpful
       to a clear understanding of the witness' testimony or the determination ofa
       fact in issue, and ( c) not based on scientific, technical, or other specialized
       knowledge within the scope of rule 702.

       Testimony based on inferences from the evidence is not improper opinion

testimony. City ofSeattle v. Heatley, 70 Wn. App. 573, 578, 854 P.2d 658 (1993).

Nevertheless, an opinion that lacks proper foundation is not admissible under ER 701.

City ofSeattle v. Heatley, 70 Wn. App. at 579. A layperson's opinion is admissible only

if it has a rational basis, which is the same as to say that the opinion must be based on

knowledge. State v. Kunze, 97 Wn. App. 832, 850, 988 P.2d 977 (1999). A lay opinion

is simply opinion based on knowledge derived from the witness's own perceptions, and

from which a reasonable person could rationally infer the subject matter of the offered


                                             24 

No. 32723-0-111
State v. Gaston


opinion. State v. Kunze, 97 Wn. App. at 850. A lay person's observation of intoxication

is the iconic example of a permissible lay opinion. State v. Montgomery, 163 Wn.2d 577,

591, 183 P.3d 267 (2008); City o/Seattle v. Heatley, 70 Wn. App. at 580.

       The testimony of J.W. that Dennis Gaston enjoyed the touching was not preceded

by any testimony from J.W. as to the basis of his conclusion of enjoyment. Obviously,

J.W. was adjacent to Gaston at the time of the touching, and J.W. could have seen

expressions of pleasure on Gaston's face. J.W. disclosed that he looked at Gaston's face

during the touching. Nevertheless, he never testified that he looked upon Gaston's face at

the time he concluded that Gaston enjoyed the offensive touching. J.W. also testified he

looked elsewhere during the touching. More importantly, J.W. divulged no physical

manifestations that he observed on the face of Gaston nor any other observations that led

him to conclude that Gaston enjoyed the touching.

       In resolving this issue on appeal, we juxtapose two Washington decisions with

contrary results: State v. Farr-Lenzini, 93 Wn. App. 453, 970 P.2d 313 (1999), and City

o/Seattle v. Heatley, 70 Wn. App. 573 (1993). In State v. Farr-Lenzini, we reversed Lisa

Ann Farr-Lenzini's conviction for attempting to elude a pursuing law enforcement

officer. The officer testified that Farr-Lenzini exhibited that she "was attempting to get

away from me and knew I was back there and refusing to stop." 93 Wn. App. at 458.

We ruled the admission of the evidence to be harmful error. The officer could not

provide a lay opinion because he did not testifY to any observations he made to

                                            25 

II 

iI     No. 32723-0-III
,
i

1
       State v. Gaston

I
!      distinguish between a distracted, speeding driver and an eluding driver. The State

I      attempted to qualify the officer as an expert witness, but the record did not indicate that

I      the trooper was qualified to testify as an expert on the driver's state of mind.
I
              In City ofSeattle v. Heatley, we affirmed Robert Heatley's conviction for driving

       while intoxicated and negligent driving. Heatley sped and weaved on the road. A

       responding officer observed that Heatley's eyes were bloodshot and watery, his face was

       flushed, his balance was unsteady, and he exuded a "strong odor" of alcohol on his

       breath. The officer also heard slurred speech. The officer conducted field sobriety tests,

       during which Heatley swayed during a balance test and lost his balance while walking toe

       to heal. We agreed with the trial court's admission of the officer's conclusion that

       Heatley was intoxicated, because of the officer's physical observations.

              Because we have already declared the admission of other testimony to be harmful

       error, we do not address whether admission of J. W.'s opinion testimony without a proper

       foundation constituted reversible error.

              Issue 9: Whether significant portions ofthe mother's testimony constituted

       prejudicial hearsay, improper vouching, or irrelevant evidence and whether trial counsel

       was ineffective for failing to object to the evidence on the respective grounds?

             Answer 9: No. The trial court did not admit hearsay. We do not address the other

       contentions because Dennis Gaston does not cite to the portions ofthe trial transcript

       that he claims contains inadmissible testimony.

                                                    26 

No. 32723-0-III
State v. Gaston


       Dennis Gaston brought a motion in limine to preclude Julie Woolery, J.W.'s

mother, as a witness. The motion assumed that Woolery would only testifY to statements

uttered by J.W., and thus Gaston grounded the motion solely on the hearsay rule. The

trial court did not preclude Woolery as a witness, but ruled that she could not testifY to

statements told her by her son.

       On appeal, Dennis Gaston argues that some of Julie Woolery's testimony

constituted prejudicial hearsay. We disagree. Consistent with the trial court's order in

limine, Woolery did not repeat any statements spoken by J.W. to her. She testified that

lW. made a statement, after which she took particular actions, but she did not reveal the

content of the statement.. If the significance of an offered statement lies solely in the fact

that it was made, no issue is raised as to the truth of anything asserted, and that statement

is not hearsay. Cranwell v. Mesec, 77 Wn. App. 90, 101,890 P.2d 491 (1995). The

testimony, about which Gaston complains, is one step further removed from being

hearsay. Woolery did not disclose the contents of any of J.W.'s statements, let alone

offer a statement for the truth of the contents.

       Dennis Gaston also complains about some of Julie Woolery's testimony being

irrelevant and impermissible vouching of J.W.'s allegations. In his discussion of this

testimony, he refers to all of the testimony in general, rather than citing specific passages

of testimony or particular questions and answers. RAP 10.3(a)(6) requires an appellant to

cite to the relevant portions of the record in the argument section of his brief. A party

                                              27 

No. 32723-0-III
State v. Gaston


must cite to the record for the testimony about which he assigns error. Glazer v. Adams,

64 Wn.2d 144,149,391 P.2d 195 (1964). Therefore, we decline to address these further

assignments of error regarding Julie Woolery's testimony. Since we will not address the

merits ofthese assignments of error, we cannot determine if Gaston's trial counsel

committed error by failing to object to testimony on relevance and impermissible

vouching grounds. Trial counsel did object to some of the testimony on relevance

grounds.

       Issue 10: Whether the prosecutor committed misconduct during closing argument

by sympathizing with the jury, by arguing facts not in evidence, and by improperly

vouching for J. W. ?

       Answer 10: No. The prosecution did not argue facts not in evidence nor

improperly vouch for J. W.

       Dennis Gaston also contends that the prosecution committed misconduct during

closing argument by misstating the evidence, improperly vouching for a witness, and

appealing to prejudice. The State responds that the prosecutor's statements in closing did

not rise to misconduct and, even if the statements did, the appropriate remedy was a

curative instruction. We conclude that the prosecutor did not commit misconduct.

       This court reviews a prosecutor's comments during closing argument in the

context of the total argument, the issues in the case, the evidence addressed in the

argument, and the jury instructions. State v. Boehning, 127 Wn. App. 511, 519,111 P.3d

                                            28 

No. 32723-0-111
State v. Gaston


899 (2005). A defendant claiming prosecutorial misconduct must show that the

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

and circumstances at trial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012).

       A prosecutor's statements are improper if they misstate the applicable law, shift

the burden to the defense, mischaracterize the role of the jury, or invite the jury to

determine guilt on improper grounds. State v. Emery, 174 Wn.2d at 759-60; State v.

Boehning, 127 Wn. App. at 522. Even if the defendant shows the comments were

improper, the error does not require reversal unless the appellate court determines there is

a substantial likelihood the misconduct affected the jury's verdict. State v. Gentry, 125

Wn.2d 570, 641, 888 P.2d 1105 (1995), aff'd sub nom. Gentry v. Sinclair, 705 F.3d 884

(9th Cir. 20l3). If a defendant did not object to a prosecutor's alleged misconduct at

trial, he or she is deemed to have waived any error, unless the misconduct was so flagrant

and ill intentioned that a jury instruction could not have cured the resulting prejudice.

State v. Gentry, 125 Wn.2d at 596. Reviewing courts should focus less on whether the

prosecutor's misconduct was flagrant or ill intentioned and more on whether the resulting

prejudice could have been cured. State v. Emery, 174 Wn.2d at 762. Under this

heightened standard, the defendant must show that (1) no curative instruction would have

obviated any prejudicial effect on the jury, and (2) the misconduct resulted in prejudice

that had a substantial likelihood of affecting the jury verdict. State v. Emery, 174 Wn.2d

at 760-61. Because Dennis Gaston did not object during closing argument, he now bears

                                             29 

No. 32723-0-III
State v. Gaston


the burden on appeal to demonstrate that the State's comments were so prejudicial that no

curative instruction could have remedied their effect and that the comments had a

substantial likelihood of affecting the jury verdict.

       Dennis Gaston contends that the prosecutor committed misconduct by misstating

the evidence. In closing argument, the prosecuting attorney has wide latitude to argue

reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438, 448, 258

P.3d 43 (2011). However, a prosecutor may not make statements that are unsupported by

the evidence and prejudice the defendant. State v. Boehning, 127 Wn. App. at 519. A

prosecutor's comments are reviewed in the context of the entire argument, the issues in

the case, the evidence addressed in the argument and the instructions given to the jury.

State v. SchUchtmann, 114 Wn. App. 162, 167, 58 P.3d 901 (2002).

       State's counsel below misstated the evidence. During trial testimony, J.W.

speculated that Dennis Gaston was enjoying touching l. W. During summations, the

prosecutor repeatedly claimed that l.W. testified that Gaston asked l.W. whether J.W.

enjoyed the touching. No chain of reasonable inferences led from one statement to the

other. We anticipate the prosecutor refraining from making this error during the retrial.

In the context of the first trial, however, the error was not prejudicial because, at each

time the State misstated the evidence, the State coupled the mistake with l.W.'s

testimony that Gaston asked ifhe "was getting hard." VRP at 86.

       Dennis Gaston contends that the prosecutor improperly vouched for l.W. by

                                              30
No. 32723-0-111
State v. Gaston


referring to his testimony as "candid." The State responds that the prosecutor's reference

was a permissible inference from the evidence. We agree with the State.

       The prosecutor and any other counsel commits misconduct by stating a personal

belief as to the credibility of a witness. State v. Warren, 165 Wn.2d 17, 30, 195 P3d 940

(2008). Prosecutors may, however, argue an inference from the evidence, and prejudicial

error will not be found unless counsel unmistakably expresses a personal opinion. State

v. Brett, 126 Wn.2d l36, 175,892 P.2d 29 (1995). The defendant bears the burden to

show that the prosecutor's statements constituted a clear and unmistakable expression of

the prosecutor's personal opinion, divorced from the evidence. State v. McKenzie, 157

Wn.2d 44, 55, l34 P.3d 221 (2006).

       In State v. Sargent, 40 Wn. App. 340, 343, 698 P.2d 598 (1985), the prosecutor

stated "I believe Jerry Lee Brown. I believe him when he tells us that he talked to the

defendant, that the defendant told him that he had beaten his wife in the past[.]"

(Emphasis omitted.) This court held that the statement was misconduct because it was

clearly and unmistakably an expression of the prosecutor's personal opinion. In State v.

Ramos, 164 Wn. App 327, 341 n.4, 263 P3d 1268 (2011), this court found improper

vouching when the prosecutor argued that "the truth of the matter is [the police

witnesses] were just telling you what they saw and they are not being anything less than

100 percent candid."

       We contrast State v. Warren, 165 Wn.2d 17 (2008) with State v. Sargent and State

                                            31 

No. 32723-0-111
State v. Gaston


v. Ramos. In State v. Warren, the high court held that the prosecutor did not commit

misconduct when he argued that "these statements had a 'ring of truth' and the detail was

not the kind one would expect a 14-year-old to know absent abuse." 165 Wn.2d at 30.

The statement was not an explicit statement of personal opinion.

       Dennis Gaston's prosecutor, on three different occasions, discussed J.W. 's candor

on the stand. All of the statements, when taken in context, were inferences from

evidence. The prosecution couched each statement with facts about J.W.'s demeanor to

support the argument that the witness was being honest. During Gaston's closing

argument, he placed J.W.'s credibility into question. In response, the prosecutor

emphasized IW,'s demeanor to argue his credibility. The State should not be helpless in

responding to an attack on its principal witness's credibility.

       Dennis Gaston contends that, by making statements about what our children go

through, the prosecutor improperly appealed to the jurors' sympathy. The State responds

that the prosecutor was only acknowledging the difficulty of the situation. We agree with

the State.

       A prosecutor, as a quasi-judicial officer, has a duty to ensure a verdict free of

prejudice and based on reason. State v. Claflin, 38 Wn. App. 847, 850, 690 P.2d 1186

(1984). Nevertheless, the heinous nature of a crime and its effect on the victim can be

proper argument. Claflin, 38 Wn. App. at 850. We hold that the prosecutor's statement

was a permissible comment on the effect of the crime on J.W.

                                             32
No. 32723-0-III
State v. Gaston


       Issue 11: Whether cumulative error should result in a remand/or a new trial? 


       Answer 11: We do not address this question. 


       Dennis Gaston next contends that the cumulative error doctrine applies and this 


court should remand for a new triaL Under the cumulative error doctrine, a defendant

may be entitled to a new trial when the trial court's multiple errors combined to deny the

defendant a fair triaL In re Pers. Restraint o/Lord, 123 Wn.2d 296,332,868 P.2d 835

(1994). We need not address this question since we remand for a new trial on the basis of

one error.

       Issue 12: Whether the trial court erred when it imposed a community custody

condition barring Dennis Gastonfrom viewing or possessing pornographic material

because the condition is not reasonably crime related, is unconstitutionally vague, and is

not narrowly tailored?

       Answer 12: We do not address this question.

       Finally, Dennis Gaston contends that the trial court erred by imposing a

community custody condition barring him from viewing or possessing pornographic

materiaL He argues that this condition is not reasonably crime related, is

unconstitutionally vague, and is not narrowly tailored. The State concedes this argument.

We do not address the argument, however, since we vacate Dennis Gaston's conviction

and sentence.




                                            33
No. 32723-0-111
State v. Gaston


                     STATEMENT OF ADDITIONAL GROUNDS

       Dennis Gaston raises four errors in his statement of additional grounds: (1) J.W.

testified twice that nothing happened in the spring of20l3, (2) J.W. testified that his

mother told him that the molestation occurred on a Saturday, (3) J.W.'s story changed

multiple times, and (4) potential witnesses were never questioned or interviewed.

       A criminal defendant may submit a pro se statement of additional grounds for

review "to identify and discuss those matters related to the decision under review that the

defendant believes have not been adequately addressed by the brief filed by the

defendant's counsel." RAP 10.10(a). The rule additionally provides in part:

             Reference to the record and citation to authorities are not necessary
      or required, but the appellate court will not consider a defendant's
      statement of additional grounds for review if it does not inform the court of
      the nature and occurrence of alleged errors. Except as required in cases in
      which counsel files a motion to withdraw as set forth in rule 18.3(a)(2), the
      appellate court is not obligated to search the record in support of claims
      made in a defendant's statement of additional grounds for review. Only
      documents that are contained in the record on review should be attached or
      referred to in the statement.

RAP 10.10(c) (alteration in original); see also State v. Alvarado, 164 Wn.2d 556, 569,

192 P.3d 345 (2008). This court does not consider arguments that are repetitive of

defense counsel's brief. State v. Calvin, 176 Wn. App. 1,26,316 P.3d 496 (20l3),

review granted in part, cause remanded by 183 Wn.2d 1013,353 P.3d 640 (2015).

      Dennis Gaston's first two contentions merely restate testimony admitted as

evidence at trial without contending that the testimony was inadmissible. A recitation of

                                            34 

No. 32723-0-III
State v. Gaston


testimony presents no assignment of error. Gaston's third complaint that l.W. changed

his story multiple times was the basis for his defense. His defense counsel explored the

inconsistent testimony throughout the trial.

       Finally, Dennis Gaston quarrels that counsel failed to summon to testifY potential

witnesses. This allegation falls outside of the record on review. Because the allegation is

unsupported by the record or any other information, we do not address the contention.

                                     CONCLUSION

      The trial court committed evidentiary error during the trial of Dennis Gaston. At

least one of the errors was harmful and demands a new trial. We vacate Gaston's

judgment and sentence and remand for a new trial.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 





Lawrence-Berrey, 1.

                                               35 

