       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                                                        m.
                                                  No. 72405-3-1                             o
                                                                                        o   -Tj
                     Respondent,
                                                                                   QO
                                                  DIVISION ONE                          *-cr

              v.



KENNON GREGORY FASTRUP,                           UNPUBLISHED OPINION

                     Appellant.                   FILED: March 28, 2016



       Becker, J. — Kennon Fastrup was convicted of the murder of Diane

Grisby. He claims that his right to confidential communication with his attorney

was violated during jury selection, but there is no evidence of this in the record.

He argues that many of his ex-girlfriend's comments about his bad prior acts

were improper. But at trial he did not object, objected on a different ground than

he raises on appeal, or had improper comments stricken. He complains of

improper jury instructions, but he proposed these instructions. Other evidence to

which Fastrup objects was properly admitted after he opened the door or as

rebuttal. Finding no error, we affirm.

                                         FACTS


       On May 5, 2012, firefighters responded to a report of a car on fire in Black

Diamond, Washington. The firefighters discovered a charred human body in the
No. 72405-3-1/2



trunk of the car, later identified as the body of Diane Grisby, Kennon Fastrup's

girlfriend.

        An investigation followed. Grisby's mother said she had last seen Grisby

at a car impound lot two evenings earlier with Fastrup and Michelle Backstrom,

Fastrup's ex-girlfriend. Detectives began searching for Fastrup and Backstrom,

who fled from law enforcement together. One week later, on May 11, 2014,

detectives found Fastrup and Backstrom and, after a high-speed car chase,

arrested them both.


        Immediately after their arrest, both Backstrom and Fastrup were

separately questioned by police. Backstrom admitted that she and Fastrup

murdered Grisby in Backstrom's garage on the night of May 4, 2012. Backstrom

told the police that she and Fastrup placed Grisby's body in the trunk of Grisby's

car and, late the next night, drove the car to Black Diamond and lit it on fire in an

attempt to dispose of Grisby's body.

        Backstrom eventually entered into a plea deal with the State. She pled

guilty to second degree murder, was sentenced to 15 years in prison, and agreed

to testify against Fastrup. Fastrup was charged with first degree murder-

domestic violence, second degree murder in the alternative, second degree

arson-domestic violence, attempting to elude a pursuing police vehicle, and

misdemeanor violation of a court order-domestic violence.


        Fastrup's trial proceedings took place over the span of one month in June

and July 2014. The State called 20 witnesses. Only 4 of these witnesses are

relevant to Fastrup's appeal: Backstrom, two detectives who interviewed
No. 72405-3-1/3



Backstrom and Fastrup on the day they were arrested, and a jail guard. Fastrup

did not testify. The defense did not call any witnesses. Fastrup's defense theory

was that Backstrom murdered Grisby, then made up a story to pin the murder on

him. Fastrup tried to show Backstrom was jealous and angry that Fastrup left her

for Grisby.

       A jury found Fastrup guilty of all charges on July 9, 2014. Fastrup

appeals.

              CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION

       During jury selection, the trial judge returned from a morning recess and

said: "OK, counsel, while we were on our morning break, my bailiff had come with

some information to me. When Juror 35 was brought in for individual

questioning, she noted that Mr. Fastrup had demonstrated non-verbal recognition

of Juror 35. And so I wanted to inquire whether that was someone that he was

familiar with or knew in any way." Fastrup stated that the prospective juror

looked like someone he knew from high school. The court explained that "my

bailiff came to me and indicated that she had noticed that Mr. Fastrup had

responded when he saw Juror 35 in such a way that it looked like he knew Juror

35. So we just wanted to follow up and I understand that now Mr. Fastrup has

indicated he thought he looked like someone he had went to high school with,

so.



       There was no further discussion about the bailiff until after the jury found

Fastrup guilty. After the trial court denied his motion for a new trial, Fastrup

moved the court to reconsider. In his motion to reconsider, Fastrup claimed for
No. 72405-3-1/4



the first time that the bailiff had eavesdropped on a confidential conversation

between himself and his attorney during jury selection, in violation of his right to

counsel. He renews this argument on appeal.

       There is no evidence in the record that the bailiff overheard or observed

any type of communication between Fastrup and his attorney. The bailiff's

observations were based on Fastrup's apparent nonverbal recognition of the

juror. For this reason, Fastrup's claim of interference with confidential attorney-

client communication fails.

                          PISTOL-WHIPPING INCIDENT

       During pretrial motions in limine, both parties agreed that they could

question Backstrom about an incident where she broke the windshield of Grisby's

car with a hatchet. On direct examination during its case-in-chief, the State

asked Backstrom about this incident. Backstrom testified that Fastrup pistol-

whipped her and stole her phone and other personal property. She said that

when Grisby came to pick Fastrup up, he still would not give her phone back, so

she hit Grisby's windshield with a hatchet and broke it. Fastrup did not object to

this testimony.

       On cross-examination, Fastrup asked Backstrom whether she broke

Grisby's windshield because she was mad. She said yes, she was mad at

Fastrup for beating her severely and stealing from her. Fastrup asked her

whether she broke the windshield because Fastrup was dating Grisby.

Backstrom answered no, she broke the windshield because Fastrup stole from

her and beat her. Fastrup asked her ifshe was mad at Grisby for taking her
No. 72405-3-1/5



boyfriend. Backstrom answered no, she did not want to keep Fastrup because

he abused her, stole from her and her family members, and committed other bad

acts. Fastrup confronted Backstrom with her earlier statement to detectives that

she was not mad at Grisby for anything besides taking her boyfriend. Backstrom

explained that she was mad for the first couple days but quickly got over it.

Fastrup followed up by asking her if she had learned that he and Grisby were

going away on a trip together, "and that bothered you, right?" Backstrom

answered no. Fastrup asked her if she had heard that he and Grisby were

getting married. Later, he again asked Backstrom to confirm that he had fallen in

love with Grisby, "and that didn't bother you?" She answered no.

      After the defense finished cross-examining Backstrom, the State moved to

introduce a photograph of the injuries Backstrom suffered when Fastrup allegedly

pistol-whipped her. The State pointed out that the cross-examination of

Backstrom made it look like she was jealous of Grisby. The State argued that the

photograph would corroborate Backstrom's testimony that she was mad at

Fastrup, not jealous of Grisby. Over Fastrup's objection, the trial court allowed

the photograph for the specific purpose of corroborating Backstrom's testimony

about why she broke Grisby's windshield. The trial court admitted the

photograph after giving a limiting jury instruction proposed by Fastrup.

       On appeal, Fastrup argues that Backstrom's testimony on direct

examination that he pistol-whipped her and the photograph of Backstrom's
No. 72405-3-1/6



injuries from the beating should have been barred under ER 404(b).1 To

challenge a trial court's admission of evidence, a party must raise a timely

objection on specific grounds. State v. Gray, 134 Wn.App. 547, 138 P.3d 1123

(2006), review denied, 160 Wn.2d 1008 (2007); see also RAP 2.5(a) (appellate

court may refuse to review any claim of error not raised in the trial court). There

is an exception to this rule for a manifest error affecting a constitutional right.

RAP 2.5(a)(3). However, evidentiary errors under ER 404(b) are not of

constitutional magnitude. State v. Powell. 166 Wn.2d 73, 84, 206 P.3d 321

(2009). Because Fastrup did not object to Backstrom's testimony at trial, he

waived any error with respect to her testimony.

       As to the photograph, Fastrup opened the door to its admission. See,

e.g., State v. Gefeller. 76 Wn.2d 449, 455, 458 P.2d 17 (1969) (where the

defendant opens the door to particular subject, the State may pursue the subject

to clarify a false impression). The State was entitled to admit the photograph to

corroborate Backstrom's testimony that she broke Grisby's windshield out of

anger towards Fastrup for pistol-whipping her and stealing her property, not

because of jealousy towards Grisby. The trial court properly minimized any

potential prejudice to Fastrup by giving the jury the limiting instruction he

requested.




        1 ER 404(b) states, in relevant part: "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."
No. 72405-3-1/7



                                MIDTRIAL THREAT

       Near the conclusion of Backstrom's cross-examination, the court recessed

for lunch. During this recess, in the presence of at least one jail guard, Fastrup

threatened to attack Backstrom when she returned to the witness stand and said

that the jail guards were going to have to use force to stop him. The next day,

the State moved to present evidence of this threat, arguing that it was evidence

of Fastrup's guilty conscience and his intent to intimidate a witness in the case.

Fastrup objected, arguing that any probative value was substantially outweighed

by unfair prejudice. The trial court agreed with Fastrup and did not allow the jail

guard to testify.

       Later, as part of his effort to depict himself as frightened of Backstrom,

Fastrup cross-examined one of the detectives and elicited certain statements

Fastrup made to the detective on the day he was arrested. These included

Fastrup's statement that he was "hella mad" at Backstrom, but "'what am I

supposed to do, man?'. . . 'Fuck her up? No, fucking bitch will kick my ass,

dude.'" In the interview, when the detective asked Fastrup why he did not

confront Backstrom, Fastrup responded that he would have been in the exact

same situation as Grisby—that is, dead. Fastrup told the detective that if he had

refused Backstrom's request to help get rid of Grisby's car with her body in the

trunk, Backstrom "'would have fucking put me there with her. I don't know, man.

She sort of threatened me a couple times, you know."' The intended effect of

eliciting his own prior statements was to paint a picture that Fastrup could not
No. 72405-3-1/8



defend himself against Backstrom and that she compelled him to participate in

the disposal of Grisby's body.

       After this, the State renewed its motion to admit the jail guard's testimony.

The State argued that by depicting himself as afraid to confront Backstrom,

Fastrup opened the door to testimony that he had threatened to attack

Backstrom on the witness stand. The trial court agreed that Fastrup had opened

the door, determined that the probative value of the evidence now outweighed

the potential prejudice, and admitted the jail guard's testimony with a limiting

instruction proposed by Fastrup. The guard then testified that Fastrup told him

"as soon as I took the handcuffs off he was going to jump over the table and run

up there and beat the witness" and that jail guards would have to "fuck him up" to

stop him.

       Fastrup contends that the court erred by admitting the guard's testimony,

citing ER 404(b). The decision to admit evidence of other wrongs or acts under

ER 404(b) lies within the sound discretion of the trial court and will not be

disturbed on appeal absent an abuse of discretion. See State v. Brown, 132

Wn.2d 529, 571-72, 940 P.2d 546 (1997). cert, denied. 523 U.S. 1007 (1998).

The State may offer such evidence to rebut an assertion by the defendant. See,

e.g., State v.Ciskie, 110 Wn.2d 263, 281, 751 P.2d 1165(1988). In Ciskie,

testimony from defendant's ex-wife that the defendant called her about his intent

to kill the victim was permissible to rebut the defendant's testimony that he did

not threaten to kill the victim. Ciskie, 110 Wn.2d at 281. Also, where the
No. 72405-3-1/9



defendant "opened the door" to a particular subject, the State may pursue the

subject to clarify a false impression. Gefeller. 76 Wn.2d at 455.

       Fastrup opened the door by bringing in his statements to the detective

asserting that Backstrom would beat him, or even kill him, if he confronted her

about Grisby's murder or did not cooperate in disposing of the body. These

statements were material to Fastrup's defense theory that Backstrom alone killed

Grisby and that Fastrup helped Backstrom get rid of the body only because he

was afraid of her.

       The State was entitled to rebut the impression that Fastup feared

Backstrom with his contradictory statement that jail guards would have to forcibly

restrain him from attacking Backstrom on the witness stand. The trial court

properly minimized any prejudice to Fastrup by giving the jury the limiting

instruction that he proposed. The trial court did not abuse its discretion in

admitting Fastrup's mid-trial threat against Backstrom.

                      ADDITIONAL ER 404(B) OBJECTIONS

       Fastrup also challenges other comments Backstrom made regarding his

bad character and bad acts as inadmissible under ER 404(b). But at trial,

Fastrup either did not object, or objected on a different ground than he raises on

appeal, or was successful in having the comments stricken.

       Backstrom testified that Fastrup is "selfish," a "control freak," a "hateful

little person," and "abused me for three years straight. He stole everything I had.

... I lived in fear of him." Fastrup waived any objection to these allegedly

improper comments because he did not object at trial.


                                           9
No. 72405-3-1/10



       Backstrom testified that Fastrup got her and Grisby addicted to drugs and

that Fastrup "obviously did this," referring to Grisby's murder. Fastrup objected to

both of these comments as nonresponsive. On appeal, he contends they were

inadmissible under ER 404(b). A party may assign error in the appellate court

only on the specific ground of evidentiary objection made at trial. State v. Gulov,

104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert, denied, 475 U.S. 1020 (1986).

Because Fastrup did not raise an ER 404(b) objection to these comments at trial,

he may not raise this ground on appeal.

       Backstrom testified that Fastrup gives women "double black eyes all the

time," "got his licks in," and hung a noose in the garage "so I could commit

suicide one day when he left." Fastrup moved to strike these comments. The

trial court struck the comments and instructed the jury to disregard them. Courts

generally presume that jurors follow instructions to disregard improper evidence.

State v. Swan. 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert, denied. 498 U.S.

1046 (1991). Because the trial court instructed the jury to disregard these

allegedly improper comments, we assume that the jury disregarded them and

accordingly reject Fastrup's argument that reversible error occurred when the jury

heard them.


       Backstrom testified that Fastrup "would hold knives to me every day,

almost." Fastrup objected, but before he could state any basis for his objection,

the court intervened on its own and tried to ask Backstrom to stop speaking.

Backstrom blurted out that Fastrup "robbed my house repeatedly" and "threw

gasoline at my house." We conclude the remarks did not deprive Fastrup of a


                                          10
No. 72405-3-1/11



fair trial. In light of all the other evidence admitted against Fastrup, particularly

the testimony by Backstrom about how Fastrup pistol-whipped her and stole her

personal belongings, there is no reasonable probability that the outcome of the

trial would have been materially different had the jury not heard Backstrom's list

of additional accusations. See, e.g., State v. Kidd, 36 Wn. App. 503, 507-08, 674

P.2d 674 (1983).

                          LIMITING JURY INSTRUCTIONS


         Fastrup proposed the following limiting jury instruction to be given before

the photograph of Backstrom's injuries was introduced:

         You are about to be shown State's Exhibit 58. This exhibit is
         admitted for the limited purpose of corroborating Ms. Backstrom's
         description of the incident involving Ms. Backstrom breaking Denise
         Grisby's windshield with a hatchet. You are to consider it for no
         other purpose.

The trial court read this instruction exactly as proposed.

         Fastrup proposed the following limiting jury instruction to be given before

the jail guard testified about Fastrup's threat to attack Backstrom on the witness

stand:


                 You are about to hear testimony regarding a statement the
         defendant made to this witness. This statement is being admitted
         for the limited purpose of allowing the State to refute the
         defendant's prior statements regarding his fear of Ms. Backstrom.
         You are to consider it for no other purpose.

The trial court added the words "and his inability to defend himself at the end of

the second sentence, over Fastrup's objection. Besides this addition, the

instruction was read as proposed.




                                           11
No. 72405-3-1/12



       Fastrup now argues that the words "corroborating" and "refute" in the

instructions improperly conveyed the judge's personal opinion about the value of

the evidence.


      A party may not request a jury instruction and later complain on appeal

that the requested instruction was given. State v. Henderson. 114 Wn.2d 867,

870, 792 P2d 514 (1990). This is a strict rule, and the Washington Supreme

Court has rejected the opportunity to adopt a more flexible approach. State v.

Studd, 137 Wn.2d 533, 547, 973 P.2d 1049 (1999).

       Fastrup requested these jury instructions, including the exact words that

he now contends amounted to a comment on the evidence. He may not

complain about them now.

                      PRIOR CONSISTENT STATEMENTS

      The court allowed Backstrom to testify on direct examination about

statements she made to detectives on the day she was arrested, one week after

Grisby's murder. Fastrup contends Backstrom's testimony was improperly

bolstered by the use of her prior consistent statements.

      The statements were admitted under ER 801(d)(1)(ii). When offered to

rebut a suggestion of recent fabrication, prior statements are not hearsay:

      A statement is not hearsay if—
               (1) Prior Statement by Witness. The declarant testifies at the
      trial or hearing and is subject to cross examination concerning the
      statement, and the statement is .. . (ii) consistent with the
      declarant's testimony and is offered to rebut an express or implied
      charge against the declarant of recent fabrication or improper
      influence or motive.


ER 801(d)(1)(H).


                                        12
No. 72405-3-1/13



       A defendant's cross-examination suggesting that a witness may

have a motive to fabricate her story in order to receive a plea agreement

for testifying against the defendant triggers ER 801(d)(1)(H). State v.

Thomas. 150 Wn.2d 821, 866, 83 P.3d 970 (2004). On cross-

examination, Fastrup questioned Backstrom in an attempt to show that the

State's plea offer gave her a motive to fabricate:

       Q   ... And you ended up pleading to murder in the second
       degree, correct?
       A    Yes.
       Q     And the recommendation by the State was 15 years, correct?
       Is that right? Yes?
       A    Yes.
       Q    OK, now as part of that, you had done a statement of
       defendant on plea of guilty. Do you remember that?
       A    Yes.
       Q     And on that statement you had to give factual basis for
       entering into the plea, correct?
       A    Yes.
       Q       Now, had you not pleaded murder two and you had gone to
       trial, you would have been facing murder in the first degree just like
       Kenny, correct?
       A    Yes.
       Q    And amount of time would have been substantially more,
       correct?
       A    Urn, no. I was charged with murder two and arson. That's
       what I have been facing is murder two and arson.
       Q    But had you gone to trial, the charges would have been
       amended to murder in the first degree, just like Mr. Fastrup,
       correct?
       A     Urn, I suppose.
       Q      And you would have been facing a substantial, larger amount
       of time than you did by pleading to murder two, correct?
       A     Yes.


       Fastrup also repeatedly accused Backstrom of using the time after her

initial interview with detectives on the day she was arrested to fabricate lies. For

example, Fastrup questioned Backstrom about the fact that she did not tell


                                         13
No. 72405-3-1/14



detectives on the day she was arrested that she hit Grisby's hand with a meat

cleaver but admitted it in an interview two years later. Fastrup asked, "So you

had time to think about what you were going to say, correct?" Fastrup asked

Backstrom whether the events of the murder were fresher in her mind when she

gave her initial statement to detectives on the day she was arrested. When

Backstrom said that the events were fresher in her mind at trial, Backstrom asked

if that was "because you have had two years to create your story?"

       On redirect, over Fastrup's objections, the court allowed the State to

question Backstrom about prior consistent statements that she made to

detectives on the day of her arrest. A detective also recounted Backstrom's prior

consistent statements, again over Fastrup's objections. Fastrup contends the

prior consistent statements were improperly admitted. We review for abuse of

discretion. State v. Makela. 66 Wn. App. 164, 168, 831 P.2d 1109. review denied.

120Wn.2d 1014(1992).

       The record supports the court's decision to apply ER 801(d)(1)(H) to

Backstrom's prior statements. First, Fastrup implied that Backstrom's interest in

making a plea deal gave her a motive to fabricate her story. Second, he accused

Backstrom of using the two years from the time of her initial statement to create

her fabricated story.

       The party offering the prior consistent statement must show that the

statement was made before the witness's motive to fabricate arose. Thomas.

150 Wn.2d at 865. The witness must have made the statement under

circumstances indicating that she was unlikely to have foreseen the legal


                                        14
No. 72405-3-1/15



consequences of her actions. Makela. 66 Wn. App. at 168-69. Fastrup argues

that the State did not satisfy this test because Backstrom already had a motive to

lie on the day she was arrested. At that time, Fastrup argues, Backstrom knew

Grisby was dead and knew there were would be legal consequences for her

participating in the murder. But a mere assertion that the witness had a motive to

lie, without factual support, is insufficient to bar the witness's prior consistent

statements. Makela. 66 Wn. App. at 173-74. Instead, the statements are

admitted and it becomes an issue for the jury to decide who is telling the truth.

Makela. 66 Wn. App. at 173-74.

       Fastrup's general allegation that Backstrom had a motive to lie as soon as

she was arrested is unsupported. On the day Backstrom was arrested, she

could not have known how the murder investigation and later criminal charges

against both her and Fastrup were going to unfold. It is speculation to assert that

she was fabricating details of the crime in order to facilitate the future plea deal in

which she would promise to testify against Fastrup in exchange for a lesser

charge.

       We conclude the trial court did not abuse its discretion in admitting

Backstrom's prior consistent statements from the day she was arrested.




                                           15
No. 72405-3-1/16



      Affirmed.




                        ^e^e^e,
WE CONCUR:




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