                                                         Filed
                                                   Washington State
                                                   Court of Appeals
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                    Division Two

                                          DIVISION II                                      November 14, 2017

 STATE OF WASHINGTON,                                                   No. 490587-II

                                 Respondent,                    UNPUBLISHED OPINION

         v.

 RICHARD CARL BRUCE, JR.,

                                 Appellant.

        BJORGEN, C.J. — Richard Carl Bruce Jr. appeals his conviction for second degree assault

and violation of a no-contact order.

        In response to Bruce’s arguments, we hold that (1) the trial court erred by ordering Bruce

physically restrained for the entire trial but that the error was harmless, (2) the trial court did not

(a) abuse its discretion by finding defense counsel had opened the door to additional testimony

about an argument between Bruce and Elizabeth Sanchez and Bruce’s prior assault of Sanchez,

but (b) abused its discretion when it determined that testimony concerning the prior assault of

Sanchez was not unfairly prejudicial relative to its probative value, and (3) the State committed

prosecutorial misconduct by commenting on Bruce’s silence at trial. We also decline to exercise

our discretion on the matter of appellate costs.

        Consequently, we vacate Bruce’s convictions and remand for a new trial.

                                            FACTS

        Prior to the events of this case, Bruce had been convicted of second degree assault of

Sanchez in 2015. On March 17, 2016, while Sanchez and Bruce were in Sanchez’s recreational

vehicle (RV), Bruce remarked that he should not have been convicted of previously assaulting

Sanchez. Sanchez became upset by Bruce’s comment and the two began arguing. While they
No. 49058-7-II


were arguing, Bruce grabbed her throat with his hands, but tripped over a radiator heater on the

floor in the process, causing both of them to fall to the floor. Sanchez attempted to scream, but

Bruce placed his hands over her mouth and told her to be quiet. Bruce then left the RV, taking

Sanchez’s phone with him. Sanchez called 911 on another phone and while she was speaking

with law enforcement, Bruce returned to the trailer, gave Sanchez her phone, and departed.

       The State charged Bruce with first degree burglary, second degree assault, violation of a

post-conviction no-contact order, and interfering with the reporting of domestic violence.1 At

trial, the court considered argument on whether Bruce should be restrained during trial. Deputy

Ricardo Gordon from the Thurston County Corrections Department testified that Bruce was at

the time restrained by a mechanical leg restraint secured under his pant leg that prevented him

from running or kicking but permitted him to sit and walk. Gordon stated that while Bruce did

not have any disciplinary history while in custody, he was classified as maximum security due to

the nature of his charges and the amount of bail set. Gordon also explained that while different

restraint devices were available, such as a handcuffs, other forms of leg restraints, or a “Taser

device,” the alternatives were either disproportionately restrictive or would have been visible to

the jury during trial and that in the absence of any restraint device, a third deputy would be

required to monitor Bruce. The State also argued that some form of restraint would be

appropriate because the victim, Sanchez, was expected to testify. Defense counsel responded

that restraints would not be appropriate because Bruce had no disciplinary violations and did not

otherwise exhibit violent behavior while in custody.




1
 The State also charged domestic violence enhancements as part of the burglary, second degree
assault, and violation of a no-contact order charges.
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No. 49058-7-II


       In making its ruling, the trial court recognized that it needed to weigh a number of factors

in determining whether restraints are necessary, and if so, what type would be appropriate. The

trial court considered the seriousness of the charges, Bruce’s temperament and character, Bruce’s

history of disruptive behavior, the availability of less restrictive alternatives, Bruce’s age and

physical attributes, his criminal record, past escapes, or attempted escapes, whether he had

threatened to harm others or cause a disturbance, any evidence of self-destructive tendencies, any

risk of mob violence or rescue attempt, the likely size and the mood of the audience, the nature

and physical security of the courtroom, and the number of corrections deputies that would be

needed if restraints were not imposed.

       In considering less restrictive alternatives, the court noted that the device Bruce was

wearing was the “least restrictive restraint that the Court is aware of that we have here at

Thurston County absent the defendant appearing in court with no restraint whatsoever.”

Verbatim Report of Proceedings (VRP) (May 24, 2016) at 24-28. The court stated further that

       [it] is a leg brace, which cannot be seen, and in a moment I will ask Mr. Bruce to
       stand so I can make my own visual determination as to whether it can be seen on
       him. The other type of restraints that would be available would be handcuffs or leg
       cuffs, as well as . . . the [Taser device], which is actually a device that can provide
       an electrical shock to a person, if they need to be subdued in any way. So the leg
       restraint is the least restrictive restraint that is available.
       ....
       [T]he Court cannot see the leg brace the way he is dressed, although certainly I did
       see that it affected his ability as he walked. I could see a slight change in his[,]
       what presumably is his normal gait.

VRP (May 24, 2016) at 25-26.

       The court also considered

       the fact that the alleged victim in this case is the same person who is or was the
       victim of the crime for which Mr. Bruce has already been convicted, which was
       also a serious felony offense, the assault in the second degree, domestic violence,
       and that that person, Ms. Sanchez, is listed as a witness in this matter.



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No. 49058-7-II


VRP (May 24, 2016) at 27.

       The court then summarized its decision by stating:

       So in consideration of all of those factors, the concern, in general, although we have
       in our larger courtroom at this time, the way our courtroom is set up, that any
       witnesses have to come down, they have to walk between two counsel table [sic],
       which are relatively close together, and then proceed up to the witness stand, and
       then come in close proximity to, in this case, the defendant in this matter. Same
       would be true and actually on a much smaller scale if we are moved to one of our
       smaller courtrooms.
               And based upon all of that, I find that it is necessary that there be some form
       of restraint to ensure that the courtroom is safe for everyone, and I will authorize
       the use of the leg restraint.
               I would indicate that if Mr. Bruce ultimately chooses to testify in this matter,
       then when he is called to testify, I will have him take the stand before the jury comes
       in, so that he will not have to walk in front of the jury. And, additionally, at the
       conclusion of his testimony, we will recess so that Mr. Bruce can leave the witness
       stand without having to walk in front of the jury, as well.

VRP (May 24, 2016) at 27-28.

       During trial, Sanchez was cross-examined by defense counsel based on notes prepared by

the defense’s investigator, Dave Matthews, regarding a conversation that Sanchez had with

Matthews on April 30, 2016:

       [Defense (D)]:          And prior to picking [Bruce] up, you had been at your ex-
                               husband’s house, correct?
       [Witness (W)]:          Yes.
       [D]:                    And upon picking [Bruce] up, you were upset at that time,
                               correct?
       [W]:                    Yes.
       ....
       [D]:                    Do you recall telling Mr. Matthews that it was – you returned
                               around lunchtime to get something to eat [on March 17,
                               2016]?
       [W]:                    Most likely, that’s usually when I get done.
       [D]:                    And it was around that time that you and Mr. Bruce got into
                               this argument?
       [W]:                    I think it was more in the evening.
       [D]:                    So things were fine for a while?
       [W]:                    Yeah.
       [D]:                    But at some point things started to get heated?
       [W]:                    Yes.

                                                  4
No. 49058-7-II


       [D]:                   And you told Mr. Matthews this in your interview?
       [W]:                   Yes.
       [D]:                   And at some point, you told, when asked about what
                              happened next, you told Mr. Matthews that you became
                              furious –
       [W]:                   Yes.
       [D]:                    – with Mr. Bruce? And that your anger at your
                              discussions caused you to proceed to yell and scream at
                              [Bruce], correct?
       [W]:                   We both were.
       [D]:                   But you told Mr. Matthews that you yelled and screamed at
                              [Bruce]?
       [W]:                   Yes.
       [D]:                   And you told him that you got into his face?
       [W]:                   After the fact of him getting in mine.
       [D]:                   Okay. But you told Mr. Matthews –
       [W]:                   Yes.
       [D]:                    – that you got into his face and you started to call him
                              names, correct?
       [W]:                   Yes, we both did.

VRP (May 25, 2016) at 110-13.

       After the defense finished cross-examining Sanchez, the jury was excused from the

courtroom and the State argued that defense counsel had opened the door for additional

testimony regarding the argument between Sanchez and Bruce and that the testimony would be

admissible under the res gestae exception to ER 404(b). The State contended that:

                Today, on cross-examination, defendant asked her about the substance of
       the argument prior to the assaultive acts, specifically that Ms. Sanchez was unhappy
       about her husband and that she was discussing that and she was discussing that with
       the defendant and that she became upset and he became upset.
                That account leaves out a critical phase in the argument, which is that after
       Mr. Bruce and Ms. Sanchez were discussing her ex-husband, the defendant then
       turned to a discussion about their previous incident of domestic violence and how
       he could have beat that charge and should have beat that charge, and at that point,
       that’s when the anger happened.
                According to Ms. Sanchez’s initial statement to the deputy, when [Bruce]
       started making comments about how he could have beat the charge, she a [sic]
       became wary, if you will, and asked him to leave.
                According to the account she gave Mr. Matthews, the private investigator,
       is that after the defendant indicated he could have beaten the charge and should not
       have taken the deal, she became furious. So under either account, that is a critical

                                                 5
No. 49058-7-II


       phase of the argument, because right now the jury is simply believing that [sic] we
       are led to believe that Ms. Sanchez just became upset over some sort of transfer[red]
       anger towards her husband, her ex-husband, and that’s simply not the case.
                The escalation and the argument under both accounts came [in] when the
       defendant started discussing how basically he had gone down for a charge that he
       shouldn’t have that involved her. Under 404(b), there is an exception for res gestae
       type information.

VRP (May 25, 2016) at 125-27.

       After hearing argument from the defense, the court determined that defense counsel had

opened the door to further questioning regarding the content of the argument between Sanchez

and Bruce:

              During the State’s examination of Ms. Sanchez, the State abided by the
       Court’s ruling and simply elicited testimony that indicated that Ms. Sanchez and
       Mr. Bruce were in an argument on March 17, 2016, which later then led to the
       alleged assault.
              On cross-examination . . . [i]t is clear to the Court that the questioning about
       the argument, by questioning this witness about her response, which as she
       described and as she apparently indicated in an interview, is quite extreme, the
       words [sic] she was furious, that she yelled and screamed, that she got in Mr.
       Bruce’s face, that she called him names, and it’s really at this point unexplained as
       to how she could have gotten so upset over just an argument, and that the
       information related to what the argument was about and why she would get so upset
       and agitated and have such an extreme response is the res gestae, and, therefore,
       could be admissible with the door being opened pursuant to that theory.

VRP (May 25, 2016) at 131-33.

       The court also ruled that the probative value of the anticipated testimony regarding the

argument was not outweighed by its potentially prejudicial effect:

               As it relates to the issue as to whether or not the Court [sic] authorizing this
       whether or not the probative value is outweighed by the danger of unfair prejudice,
       certainly there is probative value. The probative value is to give a complete picture
       as to what had happened, to explain information that was elicited on cross-
       examination about the alleged victim’s behaviors, what she was doing, how she
       reacted to the argument and to give, as I indicated, the complete picture of what
       was really happening.
               The danger of the unfair prejudice is obvious, as well, and that is evidence
       of similar conduct by Mr. Bruce and the concern that the jury would view it as
       conformity instead of evidentiary to complete the picture and to the res gestae.

                                                  6
No. 49058-7-II


                  If the Court were to authorize testimony that Mr. Bruce had been convicted
         of the identical charge I believe [sic] would be – the probative value would be
         outweighed by the danger of the unfair prejudice. However, testimony that Mr.
         Bruce has previously been convicted of assaulting Ms. Sanchez without the
         evidence as to what the exact charge was, and that is the identical charge that is
         before the Court today, is not unduly prejudicial, because there will be no evidence
         that it was the exact same crime.
                  ....
         My understanding of what the facts are is that the argument was about the fact that
         Mr. Bruce had been previously charged with a crime, that he was saying he could
         have beat those facts, and he ultimately was convicted.
                  This is what I expect is going to be elicited, not what happened during that
         other incident but that the argument was about the fact that he had been previously
         charged and he was saying that he could beat that and that made her angry, but not
         what the charge was except that it was an assault charge.

VRP (May 25, 2016) at 137-39. Sanchez subsequently testified that she had been arguing with

Bruce about his prior unrelated plea agreement, in which he pled guilty to assaulting Sanchez.

         The defense called Bruce as a witness and questioned him regarding his interaction with

law enforcement when he was arrested:

         [D]:       And [Deputy Potis] placed you under arrest at that point?
         [W]:       Yes, he did.
         [D]:       And he read you your Miranda[2] rights?
         [W]:       Yes, he did.
         [D]:       He didn’t give you an opportunity to make a statement prior to placing
                    you under arrest?
         [W]:       No.
         [D]:       Didn’t give you an opportunity to tell your side of the story?
         [W]:       No.
         [D]:       So you invoked your constitutional rights at that point?
         [W]:       Yes, sir.
         [D]:       Because it was pretty clear were [sic] you going to be arrested?
         [W]:       Yeah.
         [D]:       And your side of the story wasn’t going to matter, was it?
         [W]:       Right.

VRP (May 25, 2016) at 197-98.




2
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                                                  7
No. 49058-7-II


       On cross-examination, the State further inquired into the conversation between Bruce and

Deputy Potis:

       [State]:   Isn’t it true when you talked to Dep. Potis, you never told him that
                  [Sanchez] had a seizure?
       [W]:       No, ma’am.
       [State]:   But he advised you of your constitutional rights under Miranda, correct?
       [W]:       Yes.
       ....
       [State]:   We will talk about what you asked him in a minute, but right now I’m
                  asking you, isn’t it true that he asked you whether or not you wished to
                  talk to him?
       [W]:       He did.
       [State]:   And you declined that opportunity; is that right?
       [W]:       I did, yes.
       [State]:   So you had the opportunity to talk to him about [Sanchez] having a
                  seizure; isn’t that true?
       [W]:       That’s true.
       [State]:   You had the opportunity to talk to him about how you needed to get out
                  of that because [Sanchez] was angry at you and she just needed to calm
                  down; isn’t that true?
       [W]:       Sure.
       [State]:   You had the opportunity to tell him you were just out walking around to
                  cool off, right?
       [W]:       Yes, right.
       [State]:   You had the opportunity to tell him you weren’t trying to hide from him,
                  you were just out walking around; isn’t that true?
       [W]:       That’s true.
       [State]:   But you waived that opportunity?
       [W]:       I guess.
       [State]:   And the reason you did that is because you knew that you had strangled
                  her, isn’t that true?
       [W]:       Not true.

VRP (May 25, 2016) at 219-20. Bruce did not object to this line of questioning.

       In closing argument, the State in part focused on challenging Bruce’s credibility:

                Now, we know that [Bruce] did not give a statement to Dep. Potis, and that
       is totally fine. The State is not saying that he should have or that he was wrong in
       doing so. Absolutely not. Everyone has a right to remain silent, and that is a
       constitutional right, and it’s very important. The reason that I bring it up is because
       it’s important, since you don’t know what account he would have given, had he not
       already heard everyone else’s testimony. So he had the opportunity. He declined



                                                 8
No. 49058-7-II


       it, which is totally in his rights, but then he takes the stand, and that is only after he
       heard what everyone else has to say.
                Again, credibility, what is reasonable in light of all the other evidence?
       What makes sense?
       ....
       [Sanchez] was clear and consistent about what happened. [Bruce] was in her RV,
       that there was a no-contact order, that they had an argument when the defendant
       started talking about how he shouldn’t have been convicted previously of assaulting
       her, that she tried to get away, and that’s when [Bruce] put his hands around her
       neck and later tried to smother her.

VRP (May 25, 2016) at 266-68. Bruce did not object.

       The jury found Bruce guilty of assault in the second degree and violating a no-contact

order. Bruce appeals.

                                             ANALYSIS

A.     Physical Restraint

       Bruce argues that the trial court abused its discretion by requiring him to wear the leg

restraint during trial and that his convictions should be reversed because the imposition of

physical restraints was prejudicial. Bruce contends that he was prejudiced by the imposition of

physical restraints because the jury may have inferred from Bruce’s lack of movement that he

was restrained.

       The trial court has broad discretion to determine what security measures are necessary to

maintain decorum in the courtroom and to protect the safety of its occupants. State v. Damon,

144 Wn.2d 686, 691, 25 P.3d 418 (2001). A trial court abuses its discretion if its decision is

manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. State v.

Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003). A decision is based on untenable grounds or

made for untenable reasons if it rests on facts unsupported by the record or was reached by

applying the wrong legal standard. Id. A decision is manifestly unreasonable if the court,

despite applying the correct legal standard to the supported facts, reaches an outcome that is

                                                   9
No. 49058-7-II


outside the range of acceptable choices, such that no reasonable person could arrive at that

outcome. Id.

           A defendant is entitled to appear at trial free from shackles except in extraordinary

circumstances. State v. Finch, 137 Wn.2d 792, 842, 975 P.2d 967 (1999). Several reasons

underpin this rule—the sight of a shackled defendant may suggest he is a dangerous and

untrustworthy person, violate his presumption of innocence, restrict his ability to assist counsel,

interfere with the right to testify in his own behalf, and/or deprive him of the full use of his

faculties. Damon, 144 Wn.2d at 690-91.

           Generally, shackles should “‘be used only when necessary to prevent injury to those in

the courtroom, to prevent disorderly conduct at trial, or to prevent an escape.’” Damon, 144

Wn.2d at 691 (quoting State v. Hartzog, 96 Wn.2d 383, 398, 635 P.2d 694 (1981)). In

determining whether the use of restraints is justified, the trial court may consider the following

factors:

           “[T]he seriousness of the present charge against the defendant; defendant’s
           temperament and character; his age and physical attributes; his past record; past
           escapes or attempted escapes, and evidence of a present plan to escape; threats to
           harm others or cause a disturbance; self-destructive tendencies; the risk of mob
           violence or of attempted revenge by others; the possibility of rescue by other
           offenders still at large; the size and the mood of the audience; the nature and
           physical security of the courtroom; and the adequacy and availability of alternative
           remedies.”

Id. (quoting Hartzog, 96 Wn.2d at 400). The trial court must make its decision based on a

factual basis set forth in the record, Hartzog, 96 Wn.2d at 400, and should allow the use of

restraints only after conducting a hearing and entering findings into the record that are sufficient

to justify the use of the restraints. Damon, 144 Wn.2d at 691-92.

           The trial court in this appeal found that the physical restraint was justified because of

safety concerns for Sanchez, the physical layout of the anticipated courtroom, Bruce’s escape

                                                    10
No. 49058-7-II


status from Department of Corrections at the time of the alleged assault, and because Bruce’s

prior and current assault charge involved disruptive and violent behavior. The court also

considered the need for an additional corrections deputy if restraints were not imposed.

        Based on the reasoning in Finch, the trial court reasonably exercised its discretion in

restraining Bruce while Sanchez was testifying, because Sanchez was the victim of Bruce’s prior

assault and the present alleged assault by Bruce. However, the need to ensure Sanchez’s safety

did not support shackling Bruce for the entire trial, because there are no findings to suggest that

Bruce posed any danger to anyone other than Sanchez. In addition, the need for additional

corrections deputies if restraints were not used does not justify the routine imposition of physical

restraints on criminal defendants, although it may be relevant in extraordinary cases where

restraints are warranted.

        In sum, neither the trial court’s oral ruling nor the evidence in the record show the

extraordinary circumstances necessary to justify shackling Bruce under Finch and Damon. The

trial court abused its discretion by ordering Bruce restrained for the entirety of the trial, rather

than only those portions when Sanchez would be testifying.

        We review an erroneous imposition of physical restraints for harmless error. In re Pers.

Restraint of Davis, 152 Wn.2d 647, 694, 101 P.3d 1 (2004). Our Supreme Court has held that

the “defendant must show that the shackling ‘had substantial or injurious effect or influence on

the jury’s verdict.’” Id. (quoting State v. Hutchinson, 135 Wn.2d 863, 888, 959 P.2d 1061

(1998)). In order to meet this burden, the defendant is required to show that, based on the record,

the jury could observe the restraints or that the restraints substantially impaired the defendant’s

ability to assist in his trial defense. State v. Monschke, 133 Wn. App. 313, 336, 135 P.3d 966

(2006). The jury’s observation of a defendant in restraints may prejudice the defendant because



                                                  11
No. 49058-7-II


the jury may subsequently infer that a defendant is restrained because he is particularly

dangerous or untrustworthy. Damon, 144 Wn.2d at 693.3

       In this case, the trial court abused its discretion by ordering Bruce physically restrained

during the portions of the trial when Sanchez was not testifying. The record, however,

demonstrates that the jury could not have been aware of Bruce’s leg restraint. Prior to ordering

restraints, the trial court examined Bruce as he stood and walked in the courtroom with the leg

restraint attached and determined that the leg restraint was not visible. While the court noted that

the restraint impaired Bruce’s usual gait, the court also took measures to conceal this indication

of restraint by having Bruce move to and from the witness stand outside the presence of the jury.

Bruce suggests that the jury may draw negative inferences if a defendant is seated at a greater

distance from the jury and others while testifying, but there is no indication in the record that

Bruce was positioned any differently than other individuals in the courtroom.

       In State v. Clark, our Supreme Court reasoned that although it was error to restrain Clark,

he was not prejudiced because there was no observable indication to the jury that Clark was

restrained. 143 Wn.2d 731, 777, 24 P.3d 1006 (2001). The court explained that Clark was not

prejudiced because “[t]he trial court made sure Clark was not moved in or out of the room in the

presence of the jury, both counsel tables had protective skirts, the shackles were taped to

eliminate any noise, and the jury never saw Clark in motion during the guilt phase.” Id. Similar

to Clark, Bruce has not demonstrated that he was prejudiced by the restraint because there is no

indication in the record that the jury could observe the restraint or any impairment caused by the

restraint or otherwise draw a negative inference about Bruce because he was restrained.




3
 Because Bruce did not argue that his physical restraints interfered with his ability to assist in
his defense, we do not consider whether he was prejudiced on this ground.
                                                 12
No. 49058-7-II


Therefore, we determine that the trial court’s improper restraint of Bruce was harmless because

Bruce has not shown that he was prejudiced as a result.

B.      Testimony Regarding the Argument Between Bruce and Sanchez

        1. Opening the Door4

        Bruce argues that the trial court erred by determining that defense counsel opened the

door to additional testimony regarding the argument in the RV between Bruce and Sanchez. We

disagree.

        Under our case law, “[a] party’s introduction of evidence that would be inadmissible if

offered by the opposing party ‘opens the door’ to explanation or contradiction of that evidence.”

State v. Ortega, 134 Wn. App. 617, 626, 142 P.3d 175 (2006) (quoting State v. Avendano-Lopez,

79 Wn. App. 706, 714, 904 P.2d 324 (1995)). We have previously noted that the open door rule

“is intended to preserve fairness,” by preventing the introduction of one-sided testimony that the

opposing party has no opportunity to rebut. Avendano-Lopez, 79 Wn. App. at 714. Our

Supreme Court has explained that:

        It would be a curious rule of evidence which allowed one party to bring up a subject,
        drop it at a point where it might appear advantageous to him, and then bar the other
        party from all further inquiries about it. Rules of evidence are designed to aid in
        establishing the truth. 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.

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




4
 Bruce argues in briefing that the trial court erred by determining that the argument between
Bruce and Sanchez was part of the res gestae of the charges in this case. However, the State
appears to concede that the trial court’s ruling reflects the application of the open door rule,
despite the fact that it references the concept of res gestae at various points. In its brief, the State
specified that “rather than addressing res gestae, the State argues that the prior conviction was
properly admitted under the open[ ] the door doctrine.” Br. of Resp’t at 11. In light of the
State’s acknowledgment, we address the arguments relating to the open door rule.
                                                  13
No. 49058-7-II


       We review a trial court’s determination that a party has opened the door for an abuse of

discretion. Ortega, 134 Wn. App. at 626. The standards for an abuse of discretion are set out in

Part A of the Analysis, above.

       In this case, the trial court determined that defense counsel had opened the door to further

testimony about the argument between Sanchez and Bruce through his questioning of Sanchez

about her emotional state in response to the argument regarding Bruce’s prior assault of Sanchez.

The State argued that Sanchez’s emotional reaction to the argument was “a critical phase of the

argument,” because without it the jury was led to believe that Ms. Sanchez “just became upset

over some sort of transfer[red] anger towards her . . . ex-husband.” VRP (May 25, 2016) at 127.

The trial court agreed with the State and found that the door was opened because:

       [I]t does appear that there is an issue the defense, through their questions, have
       painted a situation where the alleged victim in this matter became infuriated, got in
       Mr. Bruce’s face, calling him names, and that through these questions that she was
       completely out of control and extremely upset and angry and with no explaining as
       to how she could have gone from cooking dinner to that state, and that creates a
       false picture of what was really happening at that time, what the argument was truly
       about, or what was being exchanged as to when she got upset and why she got so
       upset like that.

VRP (May 25, 2016) at 137.

       The trial court’s reasoning is similar to the Supreme Court’s reasoning in Gefeller, that

“[t]o 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.” 76 Wn.2d at 455. The trial court’s reasoning is not so

outside the range of acceptable choices that no reasonable person could arrive at the same

outcome. Rohrich, 149 Wn.2d at 654. Therefore, we determine that the trial court did not abuse

its discretion by determining that defense counsel had opened the door to some further testimony

regarding the argument between Bruce and Sanchez.

                                                 14
No. 49058-7-II


       2. Balancing Probative Value/Prejudicial Effect

       Bruce asserts that the trial court abused its discretion by determining that the prejudicial

effect of the testimony regarding the argument over Bruce’s prior assault did not outweigh its

probative value. We agree.

       Even when a defendant opens the door to otherwise inadmissible evidence, that evidence

is still subject to other rules of evidence, including ER 403. ER 403 states that “[a]lthough

relevant, evidence may be excluded if its probative value is substantially outweighed by the

danger of unfair prejudice.” For example, in State v. Smith, our Supreme Court considered

whether evidence admitted after the defendant opened the door was unduly prejudicial and did

not find that “allowing such testimony [was] substantially outweighed by the danger of unfair

prejudice” under ER 403. 115 Wn.2d 434, 442-44, 798 P.2d 1146 (1990). Consistently with

Smith, Washington Practice states that

       the admissibility of evidence through the “open door” often turns on Rule 403 and
       a balancing of the proponent’s need to rebut the opponent’s evidence against the
       risk of further prejudice that may result from the introduction of otherwise
       inadmissible evidence to rebut the opponent’s evidence.

5 KARL B. TEGLAND, WASH. PRAC., Evidence, Law & Practice § 103.14, at 73-74 (6th ed. 2016)

(footnote omitted).

       Evidence may be unfairly prejudicial if it excites an emotional rather than a rational

response by the jury or when it promotes a decision on an improper basis. State v. Haq, 166 Wn.

App. 221, 261, 268 P.3d 997 (2012). We review a trial court’s balancing of the prejudicial effect

against the probative value of particular evidence for an abuse of discretion. State v. Barry, 184

Wn. App. 790, 801, 339 P.3d 200 (2014). A trial court abuses its discretion if its decision is

manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. Rohrich,

149 Wn.2d at 654. A decision is based on untenable grounds or made for untenable reasons if it

                                                15
No. 49058-7-II


rests on facts unsupported by the record or was reached by applying the wrong legal standard.

Id. A decision is manifestly unreasonable if the court, despite applying the correct legal standard

to the supported facts, reaches an outcome that is outside the range of acceptable choices, such

that no reasonable person could arrive at that outcome. Id.

       In this case, the trial court determined that while testimony that the argument involved

the prior conviction of assault in the second degree would be unfairly prejudicial, testimony that

the argument involved merely assault would not outweigh the testimony’s probative value.

However, any confusion caused by defense counsel’s questioning of Sanchez regarding her

emotional reaction to her argument with Bruce could have been remedied by means other than

disclosing that the argument was over Bruce’s prior assault of Sanchez. At trial, the State argued

that defense counsel’s questioning led the jury to believe that “Ms. Sanchez just became upset

over some sort of transfer[red] anger towards her husband, her ex-husband, and that’s simply not

the case.” VRP (May 25, 2016) at 127. Insofar as the confusion stemmed from whether Sanchez

was angry at her ex-husband or Bruce, the trial court could have remedied that ambiguity without

permitting prejudicial references to Bruce’s prior assault.

       In addition, because Bruce was charged with assaulting Sanchez, testimony that he had

previously assaulted the same victim raises concerns that the jury was induced to find Bruce

guilty based on his prior acts. Division Three of this court has noted that evidence of prior bad

acts “present[] a danger that the defendant will be found guilty not on the strength of evidence

supporting the current charge, but because of the jury’s overreliance on past acts as evidence of

his character and propensities.” State v. Slocum, 183 Wn. App. 438, 442, 333 P.3d 541 (2014).

       Also pertinent, our Supreme Court explained in State v. Gunderson that “courts must be

careful and methodical in weighing the probative value against the prejudicial effect of prior acts



                                                 16
No. 49058-7-II


in domestic violence cases because the risk of unfair prejudice is very high.” 181 Wn.2d 916,

925, 337 P.3d 1090 (2014). The court held that “[t]o guard against this heightened prejudicial

effect, we confine the admissibility of prior acts of domestic violence to cases where the State

has established their overriding probative value, such as to explain a witness’s otherwise

inexplicable recantation or conflicting account of events.” 181 Wn.2d at 925 (emphasis added).

       In this case, the testimony regarding Bruce’s prior assault did not have overriding

probative value in light of the alternative means available to remedy any confusion as to whether

Sanchez was upset at her ex-husband or Bruce. We hold that the trial court abused its discretion

by permitting testimony regarding Bruce’s prior assault because the probative value of that

testimony was substantially outweighed by the danger of unfair prejudice.5

       3. Harmlessness

       Having shown that the trial court abused its discretion by permitting testimony about his

prior assault, Bruce must also show that the error was not harmless. State v. Briejer, 172 Wn.

App. 209, 228, 289 P.3d 698 (2012). We have previously held that a non-constitutional

evidentiary error will merit reversal only if there is a reasonable probability that the error

materially affected the outcome of the trial. Id. Stated another way, we will consider an error

harmless if the improper evidence is relatively minor or insignificant when compared to all of the

evidence admitted at trial. Id. In this case, only Bruce and Sanchez were present for the assault,

and the jury was left to determine which version of events seemed more credible. The fact that

the improper testimony related to Bruce’s prior assault of Sanchez is particularly concerning, as

the jury may have been tempted to rely on his prior act as evidence of his character and




5
 Because the State has abandoned its argument regarding res gestae on appeal, we do not
consider whether such testimony would have been admissible as an exception to ER 404(b).
                                                  17
No. 49058-7-II


propensities. Slocum, 183 Wn. App. at 442. Considering our Supreme Court’s observation in

Gunderson, 181 Wn.2d at 925, that evidence of prior acts of domestic violence in a domestic

violence case carries a substantial risk of unfair prejudice, we hold that there is a reasonable

probability that the error affected the outcome of the trial.

C.     Prosecutorial Misconduct—Comment on Silence

       Bruce asserts that the State committed misconduct by commenting on his silence after he

was read his Miranda rights during cross examination. We agree.

       1. Impropriety

       To establish a claim of prosecutorial misconduct, Bruce must demonstrate that the

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

circumstances at trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673

(2012), cert. denied, 136 S. Ct. 357 (2015). To establish prejudice, there must be a substantial

likelihood that the misconduct affected the jury verdict. Id. Because Bruce did not object at

trial, his arguments are waived unless he can establish that the misconduct was so flagrant and

ill-intentioned that an instruction would not have cured the prejudice. Id. We review allegations

of prosecutorial misconduct under an abuse of discretion standard. State v. Lindsay, 180 Wn.2d

423, 430, 326 P.3d 125 (2014).

       The Fifth Amendment to the United States Constitution guarantees that “‘[n]o person . . .

shall be compelled in any criminal case to be a witness against himself.’” State v. Pinson, 183

Wn. App. 411, 416, 333 P.3d 528 (2014). Article I, section 9 of the Washington Constitution

states that “‘[n]o person shall be compelled in any criminal case to give evidence against

himself.’” Pinson, 183 Wn. App. at 416-17. Both provisions safeguard a defendant’s right to be

free from self-incrimination, including the right to silence. Pinson, 183 Wn. App. at 417. The



                                                  18
No. 49058-7-II


right to silence includes both pre-arrest and post-arrest silence, that is, before and after Miranda

rights are read. Id.

       Generally, the Fourteenth Amendment’s guarantee of due process prohibits impeachment

based on post-arrest silence, even if the defendant testifies at trial. Doyle v. Ohio, 426 U.S. 610,

619, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Burke, 163 Wn.2d 204, 217, 181 P.3d 1

(2008). However, both the United States Supreme Court and our Supreme Court have

recognized an exception to this general principle if the defendant opens the door to impeachment

by commenting on his own silence. United States v. Robinson, 485 U.S. 25, 31-32, 108 S. Ct.

864, 99 L. Ed. 2d. 23 (1988); State v. Jones, 111 Wn.2d 239, 249, 759 P.2d 1183 (1988). The

State may not use the defendant’s silence as evidence of substantive guilt. Burke, 163 Wn.2d at

217. We have noted that “[m]ore specifically, it is improper for the State to make closing

arguments that infer guilt from the defendant’s silence.” Pinson, 183 Wn. App. at 417.

       If the State references a defendant’s silence, we must determine whether the State

manifestly intended the reference to be a comment on the right to silence or a mere reference to

silence. Burke, 163 Wn.2d at 216. A comment on silence violates the defendant’s constitutional

right to silence and occurs when the State “invites the jury to infer guilt from the invocation of

the right of silence.” Id. at 217. However, the State merely references a defendant’s silence if

the reference was subtle and brief enough that it did not naturally and necessarily emphasize the

defendant’s testimonial silence. Id. at 216.

       The excerpts of Bruce’s cross-examination set out above show that the State brought out

that Bruce had declined to speak with Deputy Potis and by doing so had lost the opportunity to

convey to Potis information favorable to Bruce. The State’s questioning ended with the

following exchange:



                                                 19
No. 49058-7-II


       [State]:    But you waived that opportunity?
       [W]:        I guess.
       [State]:    And the reason you did that is because you knew that you had strangled
                   her; isn’t that true?
       [W]:        Not true.

VRP (May 25, 2016) at 219-20.

       Although much of the State’s cross examination related to whether or not Bruce had an

opportunity to provide his version of the events, the State’s question about strangulation

exceeded the boundaries of proper impeachment. The United States Supreme Court has

explained that “[c]ommon law traditionally has allowed witnesses to be impeached by their

previous failure to state a fact in circumstances in which that fact naturally would have been

asserted.” Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980).

Much of the State’s cross examination can be characterized as impeaching Bruce on the issue of

whether he had an opportunity to talk with law enforcement. However, the State’s comment that

Bruce did not talk with Deputy Potis because he had strangled Sanchez went beyond a reference

to Bruce’s silence and suggested a reason for his silence to the jury: that he had assaulted

Sanchez as charged. We have previously held that “[t]he State may not use a defendant’s silence

to ‘suggest to the jury that the silence was an admission of guilt.’” State v. Knapp, 148 Wn. App.

414, 420, 199 P.3d 505 (2009) (quoting State v. Lewis, 130 Wn.2d 700, 707, 927 P.2d 235

(1996)). Therefore, given the context of the State’s questioning, the prosecution impermissibly

commented on Bruce’s silence.

       2. Prejudice

       In addition to demonstrating misconduct, Bruce must also show that the misconduct

resulted in prejudice. In re Glasmann, 175 Wn.2d at 704. To establish prejudice, there must be

a substantial likelihood that the misconduct affected the jury verdict. Id. We review allegedly



                                                 20
No. 49058-7-II


improper arguments in the context of the total argument, the issues in the case, the evidence

addressed in the argument, and the instructions given. State v. Russell, 125 Wn.2d 24, 85-86,

882 P.2d 747 (1994).

       In this case, much of the jury’s verdict was determined by whether they found Bruce’s

version or Sanchez’s version of the incident more credible because they were the only two who

witnessed the entire event. In Pinson, we found that the State had committed prejudicial

misconduct under the circumstances of that case where “[t]he State essentially asked the jury to

find that Pinson’s silence was an admission of guilt, and argued that such an admission was

sufficient to convict him.” 183 Wn. App. at 420. While the State did not overtly argue to the

jury that Bruce’s silence was evidence of his guilt, the State’s question to Bruce “[a]nd the

reason you did [not give a statement] is because you knew that you had strangled her,” invited

the jury to infer Bruce’s guilt on the basis of his silence. VRP (May 25, 2016) at 220. Although

the State acknowledged to the jury that “[e]veryone has a right to remain silent, and that is a

constitutional right, and it’s very important,” the reminder rings hollow in light of the State’s

earlier invitation to the jury to infer guilt from Bruce’s silence. VRP (May 25, 2016) at 266.

       Finally, in closing, the State highlighted Bruce’s silence and credibility in the context of

his prior conviction for assaulting Sanchez. As mentioned above, our Supreme Court has noted

that evidence of prior acts carries a particularly high risk of unfair prejudice in domestic violence

cases. Gunderson, 181 Wn.2d at 925. Therefore, we hold that under the circumstances of this

case Bruce has demonstrated that he was prejudiced by the State’s misconduct.

       3. Flagrant and Ill-intentioned

       Because Bruce did not request a curative instruction, he must also show that the State’s

misconduct was so flagrant and ill-intentioned that it could not have been remedied by an



                                                 21
No. 49058-7-II


instruction. An objection is unnecessary in cases of incurable prejudice because there has

essentially been a mistrial, with a new trial being the only remedy. State v. Emery, 174 Wn.2d

741, 762, 278 P.3d 653 (2012). Our Supreme Court has held that certain comments calculated to

inflame the passions of the jury are not amenable to curative instruction. Id. at 762-63. The

court has also reasoned that

       where evidence is admitted which is inherently prejudicial and of such a nature as
       to be most likely to impress itself upon the minds of the jurors, a subsequent
       withdrawal of that evidence, even when accompanied by an instruction to disregard,
       cannot logically be said to remove the prejudicial impression.

State v. Suleski, 67 Wn.2d 45, 51, 406 P.2d 613 (1965). Analogizing the improper prejudicial

evidence to a harpoon, the court in Suleski concluded, “We are not assured that the evidentiary

harpoon here inserted could effectively be withdrawn. It was equipped with too many barbs.”

67 Wn.2d at 51.

       In this case, the State implicitly invited the jury to infer guilt from Bruce’s silence and

referenced his silence during its closing argument which also incorporated references to Bruce

previously assaulting Sanchez. Although the jury is presumed to follow its instructions, we are

not convinced that the jury would have been able to disregard the inference suggested by the

prosecution. We hold that the misconduct could not have been cured by an instruction to the jury

and that Bruce has demonstrated prosecutorial misconduct.

       Because we hold that the State committed prosecutorial misconduct, in addition to

holding that the trial court abused its discretion by admitting testimony of Bruce’s prior assault,

we do not reach the remainder of Bruce’s arguments, other than appellate costs.

D.     Appellate Costs

       Bruce asks us to exercise our discretion to deny any appellate costs the State

requests. Because Bruce prevails on appeal, we need not consider this request.

                                                 22
No. 49058-7-II


                                        CONCLUSION

        We reverse Bruce’s convictions and remand for a new trial consistent with this opinion.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    Bjorgen, C.J.
 We concur:



 Worswick, J.




 Johanson, J.




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