 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                 No. 73955-7-1                 ^
                     Respondent,
                                                 DIVISION ONE                  £
        v.


                                                 UNPUBLISHED OPINION ^
JAMES BRANT, JR.,

                     Appellant.                  FILED: January 23. 2017

      Spearman, J. - Prior to James Brant's trial for assault, burglary, and

interfering with domestic violence reporting, the trial court admitted evidence of
prior incidents between Brant and his estranged wife, Deanna Brant. Ajury
convicted him offourth degree assault and residential burglary. Brant appeals,
arguing that the court abused its discretion in admitting the prior incident
evidence. He also contends the prosecutor denied him a fair trial by disparaging

defense counsel during closing argument. We affirm.

                                       FACTS

       Based on allegations that Brant entered Deanna's residence without
permission, assaulted her, and prevented her from using her phones, the State
charged him with residential burglary, fourth degree assault, and interfering with
domestic violence reporting.
No. 73955-7-1/2


       Prior to trial, the court heard argument on the admissibility of incidents

occurring in the months preceding the charged incident. The court admitted most

of the prior incident evidence, stating:

       Some of it seems to me is res gestae and ought to be able to come
       in. ... I will allow on direct, though, testimony from Ms. Brant on
       incidents . . . starting in September 2014 when she asked Mr. Brant
       [for a divorce]. And I think everything that goes from there forward is
       res gestae, and I do think that the incident, certainly the March 27
       incident I think is not only res gestae, it's I think very relevant to
       the issue of fear.
              And I think the fact that she called 911 on February 24
       goes to the issue of fear. And as far as that goes, counsel, it seems
       to me that the state needs to be in a position that they can introduce
       evidence of either a physical touching or the fear of imminent harm,
       unwanted touching. An assault is either and I don't think it's fair to
       the state to limit the state to having to convince the jury beyond a
       reasonable doubt that there was an actual touching .... I think fear
       is a major factor in one of the elements in assault under the
       circumstances of this case.
              So I'm going to allow everything that's been mentioned that
       the state ... suggested they want to offer. I'll allow it on direct as
       long as it's from September 14forward, and specifically to include
       the February 24 incident where 911 was called and the March 27
       incident, the so-called gun display incident,... or both as to
       fear on the part of the alleged victim here and as to res gestae.1
       The court excluded an incident involving an axe in 2007, ruling that itwas

too remote in time. It also excluded evidence that Deanna took a pistol from

Brant's truck in 2014 because it was more prejudicial than probative.

       At trial, the evidence established that in September 2014, Deanna told
Brant she wanted a divorce. Brant was upset and told her "[h]e thought he could

fix it [.]" Verbatim Report of Proceedings (VRP) at 188. In January 2015, Brant
moved into a shop building the couple owned. Deanna remained in the family
residence with their two sons, ages 14 and 20. She testified that once Brant


        1VRP (7/27/15) at 21-22. (Emphasis added).

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No. 73955-7-1/3


moved to the shop, he was no longer permitted to enter the family residence

without her permission.

       In February 2015, Brant and Deanna were discussing a matter at her

residence when she asked him to leave. He refused, and Deanna said she would

call 911 if he did not leave. Bryant challenged her to make the call, which she did.

Shortly thereafter, a deputy arrived and was "able to have the defendant leave

[Deanna's] home." VRP (7/28/15) at 101.

       In late March 2015, Deanna obtained Brant's permission to enter his

residence and pick up a television accessory when he was not home. When she

entered Brant's bedroom, she found a shotgun, shells, wedding photos, and a

note bearing her name and the words "last will and testament" on the bed.
Deanna grabbed the television accessory and the items on the bed, including the
gun, and left. She testified she took the gun because she was afraid Brant was
planning to hurt himself. She putthe gun in her bedroom closet.
       On April 22, 2015, Brant called Deanna at home and asked if she needed
anything from the market. She said no. About five minutes later, Deanna heard a
knock at her door and saw Brant getting into his truck. When she opened the

door, she found a gallon of milk on the doorstep. She thanked Brant for the milk
and an argument ensued. Brant asked her why she had not filed for divorce. She
responded that neither ofthem could afford an attorney and "we can't seem to
have a civil conversation ... so Iguess that's what I need to do." VRP (7/28/15) at
111. As she walked back into the house, Brant got out of his truck and asked to

use the bathroom. She told him to pee outside, but he pushed the door open and
No. 73955-7-1/4


walked into the house, past the bathroom, and into Deanna's bedroom. He

retrieved his shotgun from her closet and told her he wanted his pistol. Deanna

told him to leave.


       As Brant walked past her, he took a sticky note off the shotgun and tried to

put it on Deanna's chest. The note said, "[l]f you take this I will report it stolen.

You don't need it. Stay the fuck out of my house." VRP (7/28/15) at 115. Brant

proceeded to put the shotgun in his truck.

       Brant continued to yell and demand his pistol. As Deanna tried to shut the

front door, Brant returned, forced the door open, and pushed her up against the

refrigerator. Deanna testified that he pushed against her shoulder and chest with

both hands and was "flight in her face." Id at 116-17. Brant was "completely

enraged and screaming" that he wanted the pistol. Deanna testified she "felt

terrified" and "afraid for what he was going to do." \_± at 117.

       When Brant released her, Deanna went to the kitchen to get a phone.

Brant grabbed a coffee cup and smashed it in the sink, screaming that he wanted

his pistol. Deanna picked up the phone, but Brant grabbed itfrom her and threw it

into the laundry room where it broke. When Deanna tried to use a phone in the

living room, Brant pushed her down on the couch and threw that phone into the

dining room. He then shook water from an open water bottle onto her and said,

"how do you like that, you stupid cunt." jd. at 120. He then crumpled the bottle and

threw it at her. She again told him to leave.

       Deanna saw her cell phone, but Brant grabbed it first and began walking

toward the back door. Deanna pushed the panic button on her car keys, causing



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No. 73955-7-1/5


the car's horn to start honking. She followed Brant outside and asked him to give

back her phone. He threw the phone into the woods. When she tried to retrieve it,

Brant ran past her and grabbed it. She asked him again for the phone, and he told

her to give him his pistol. Brant subsequently left and Deanna called 911 from the

phone in her bedroom.

       The court played the 911 recording for the jury. During the call, Deanna

told the 911 operator that Brant "broke both my other phones and took my cell

phone and took a weapon that was here and pushed me . . .." jd. at 137. When

asked ifshe was hurt, she said "[h]e pushed me and threw stuff at me." jd.

Deanna said Brant wanted his handgun but she "wouldn't give it back to him

because he's been suicidal and I'm obviously scared of him." jd. at 139. When the

operator asked about any damage, Deanna said:

       He broke—he threw some stuff and broke probably the two
       cordless phones I have because he didn't want me to call—I picked
       up the phone to call 9-1-1 and he grabbed it from me and threw it
       and picked up the other one and, urn, pushed me down. And he
       pushed his way into the house ....

Id, at 140.

       Deputy Robert Nou of the San Juan County Sheriff's Office testified that he

responded to Deanna's 911 calls in February and April 2015. When he arrived at
Deanna's residence after the February call, Brant told the deputy that he

remained on Deanna's premises after her 911 call because he knew Deputy Nou

"would need to talk to him [.]" jd at 173.
No. 73955-7-1/6


         When Deputy Nou arrived at Deanna's after her April 911 call, she was

pale, withdrawn and upset. He took photos of broken cups, phones, a crumpled

water bottle, and water in the living room area.

         Deanna's treating physician, Dr. Robert Wilson, testified that he saw her

shortly after the April incident. She was tearful and complained of elbow and wrist

pain, which Dr. Wilson diagnosed as a bruise and a sprain. She said the injuries

were the result of her husband's "physical abuse." jd. at 166.

         After escorting Deanna to Dr. Wilson's clinic, Deputy Nou and another

deputy called Brant and asked if he would come to the sheriff's substation. He

declined, so the deputies drove to Brant's residence. Brant told the deputies he

wanted his gun back and retrieved it from Deanna's residence. He admitted

seeing the post-it note on the gun. He took the gun to his truck and then went

back in the house. He said Deanna "was getting kind of upset and aggressive."

When "she came at him," he "grabbed her and held her against the refrigerator to

try and restrain her and get her to calm down." VRP (7/28/15) at 205. Brant

claimed Deanna threw a phone at him, which he caught and then threw to the

floor.

         According to Deputy Nou, Brant said he wanted Deanna to talk about

issues between them so he smashed a coffee cup on the floor to get her attention.

She then headed toward her living room, and Brant followed. She picked up

another phone, but Brant grabbed it, threw it, and broke it. Deanna moved toward

the dining room for her cell phone, saying she needed to make a call. Brant got to

the phone first and took it outside. He threw it over his truck, and he and Deanna



                                         -6
No. 73955-7-1/7


both went after it. Deanna told Brant he had broken all the phones in the house

and she needed the cell phone to make a call. Brant said he paid the bills for the

cell phone and she could use the cordless phone in the bedroom. Brant left the

scene with Deanna's cell phone.

       Brant testified and admitted he contemplated committing suicide with his

shotgun. He testified, however, that he and Deanna had agreed not to enter each

other's residences when the other was not home. He denied giving Deanna

permission to enter his residence in March 2015. He admitted entering Deanna's

home on April 22, 2015 "to take back a few things that she . .. took . . . from me,"

including the shotgun, jd at 238. He retrieved the shotgun and "flicked the [post-it]

note at her" as he left the house. ]d at 239-40.

       Brant testified that after putting the shotgun in the truck, he asked Deanna

for his pistol. They argued and then reentered the residence. Deanna threw a

phone at him and he caught it. She then came toward him and he threw the

phone down so his hands would be free. He grabbed her by the arms and held

her against the refrigerator to try to calm her down. When he released her, he

broke a coffee mug because he was angry.

       Brant proceeded to the living room to get away from Deanna. He reached

for a phone to call 911. Deanna reached for it at the same time and fell on the

couch. She then came toward him, so Brant threw the phone to free his hands.

He also threw water at her in an attempt to deter her advance. When he noticed

her cell phone on the kitchen counter, he grabbed it and took it outside. Deanna

attempted to grab it from him. He then attempted to throw it into his truck but


                                        -7
No. 73955-7-1/8


accidentally threw it over the truck. He retrieved it and said he would give it back

to her if she gave him his pistol. Deanna said she did not have it and would not

say who did. He told her she could use the bedroom phone if she needed to make

a call. According to Brant, the only time she told him to leave was after he took the

cell phone.

         On cross examination, Brant admitted Deanna did not invite him into her

residence at any point on April 22, 2015. He maintained, however, that their

agreement only precluded him from entering the residence when she was not

there.

         The jury found Brant guilty of residential burglary and assault, but not guilty

of interfering with domestic violence reporting. He appeals.

                                       DECISION

         Brant first contends the trial court abused its discretion in admitting the

prior incident under ER 404(b) without balancing the probative and prejudicial

values of the evidence on the record. We conclude any error was harmless.

         Under ER 404(b), evidence of a defendant's other crimes, wrongs, or acts,

is not admissible to show the defendant's character. It is, however, admissible for

certain limited purposes, such as motive, opportunity, preparation, plan,

knowledge, identity, or absence of mistake or accident. In addition to these

exceptions to the general rule, Washington courts have recognized a "'res gestae'

or 'same transaction' exception." State v. Lane, 125 Wn.2d 825, 831, 889 P.2d

929 (1995). That exception permits the admission of evidence otherwise

precluded by the rule "'if it is so connected in time, place, circumstances, or



                                             8
No. 73955-7-1/9


means employed that proof of such other misconduct is necessary for a complete

description of the crime charged, or constitutes proof of the history of the crime

charged.'" State v. Schaffer, 63 Wn.App. 761, 769, 822 P.2d 292 (1991) (quoting

5 Karl B. Tegland, Washington Practice: Evidence § 115, at 398 (3d ed.1989).

Courts admit res gestae evidence so that "a complete picture [will] be depicted for

the jury." State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981).

       Before a court may admit evidence under an exception to ER 404(b), it

must: (1) find by a preponderance of the evidence that the misconduct occurred;

(2) determine whether the evidence is relevant to a material issue; (3) state on the

record the purpose for which the evidence is being introduced; and (4) balance

the probative value of the evidence against the danger of unfair prejudice. State v.

Trickier, 106 Wn. App. 727, 732, 25 P.3d 445 (2001) (citing State v. Brown, 132

Wn.2d 529, 571, 940 P.2d 546 (1997)). This analysis must be conducted on the

record. State v. Slocum, 183 Wn. App. 438, 448, 333 P.3d 541 (2014). We review

a trial court's decision to admit evidence for abuse of discretion. State v. Finch,

137 Wn.2d 792, 810, 975 P.2d 967 (1999).

       Here, the trial court admitted evidence of the February and March incidents

as part of the res gestae of the charged offenses and/or as events bearing on the

fear element of assault. Brant contends the court "necessarily abused its

discretion" in admitting this evidence because itfailed to balance the probative

and prejudicial values of the incidents on the record. Brief of Appellant at 9.
Assuming without deciding that res gestae evidence is subject to the requirements
No. 73955-7-1/10


of ER 404(b),2 a failure to balance probative and prejudicial values on the record

is harmless if a reviewing court can determine from the record that compliance

with the requirement would not have changed the trial court's decision to admit

the evidence. State v. Carleton, 82 Wn. App. 680, 686, 919 P.2d 128 (1996).

       The record in this case indicates that on-the-record balancing would not

have changed the trial court's decision to admit the evidence. The court readily

excluded other incidents as either more prejudicial than probative or too remote in

time. Thus, the court was fully aware of the balancing requirement for admitting

the prior incident evidence. It is also clear from the record that the court concluded

the prior incidents were admissible for multiple purposes and thus had substantial

probative value. The record supports that conclusion.

        The prior incidents shed light on a disputed issue in the burglary charge-

i.e., the nature of the parties' agreement regarding their authority to enter each

other's premises. The February incident was also probative of another disputed

issue - Brant's intent in throwing and destroying the phones during the charged

incident. Deanna's 911 call during the February incident supported an inference

that Brant threw and destroyed the phones in the charged incident so that Deanna

could not call 911.

        The March incident also had additional probative value. The gun, wedding

photos, and the "last will and testament" note bearing Deanna's name strongly


        2 Division Two of this court has held that res gestae evidence is "not 'prior misconduct' of
the type generally inadmissible under ER 404(b)" and should be analyzed under ER 401, 402, and
403, not under ER 404(b). State v. Grier. 168 Wn.App. 635, 647, 278 P.3d 225 (2012); but see,
Lane, 125 Wn.2d at 831 (analyzing res gestae evidence under ER 404(b), but treating it as an
exception).


                                                 10
No. 73955-7-1/11


indicated that Brant knew Deanna was coming to his residence that day. The

items thus tended to corroborate Deanna's disputed testimony that she requested

and received permission to enter Brant's residence. They also demonstrated that

Brant was highly emotional about the pending divorce and was considering drastic

action. The incident was therefore relevant to Deanna's fear on the assault

charge.3 In addition, the March incident served the res gestae purpose of

explaining why Deanna had the gun that Brant entered her house to retrieve.
       In sum, any error in failing to balance the probative and prejudicial values

of the prior incidents on the record was harmless.

       Brant next contends he was denied a fair trial because the prosecutor

committed misconduct during the following closing argument:


                And I think one of the worst things about this type of case is when
       you were all here and Iasked everybody does a victim have to be meek,
       there was nobody who said, yes, but isn't that always the argument when
       we get to this point. What did [defense] counsel say about Deanna Brant.
        She's not scareable. She sounded pretty scared to me on that tape and
        you can listen to it. And it's offensive to consider, I'm sorry, that she
        was up here faking being upset. You don't have to cower in a corner to
        be the victim of a crime. She said, yes, she was yelling back at him when
        he was in her house get out of my house. Yeah. He's the one that's not
        allowed to be there, he's the one who's doing these things to her in her
        home.

(Emphasis added.) VRP (7/29/15) at 325-26. Brant contends the emphasized
remarks disparaged his counsel and constituted reversible misconduct. We
disagree.




        3The court instructed the jury that an assault "is also an actdone with intent to create in
another apprehension and fear of bodily jury [sic] and which in fact creates in another a
reasonable apprehension and imminent fear of bodily injury even though the act did not actually
intend to inflict bodily injury." VRP (7/29/15) at 299.

                                                 -11 -
No. 73955-7-1/12


        To establish prosecutorial misconduct, a defendant must show both

improper conduct and prejudice. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d

432 (2003). Remarks that disparage defense counsel's role or integrity, as

opposed to counsel's arguments, are misconduct. State v. Thorqerson, 172

Wn.2d 438, 451, 258 P.3d 43 (2011) (improper to disparage defense counsel's

role or integrity);4 Brown, 132 Wn.2d at 566 (prosecutor's characterization of

defense argument as "ludicrous" was not misconduct in light of the evidence);

State v. Graham, 59 Wn. App. 418, 429, 798 P.2d 314 (1990) (not misconduct to

argue that defense theory is not supported by the evidence). But otherwise

improper remarks are not misconduct if they were invited or provoked by defense

counsel's closing arguments and are a fair reply to those arguments. State v.

Brown, 132 Wn.2d at 561. When, as here, a defendant fails to object to alleged

misconduct, reversal is warranted only ifthe misconduct was so flagrant and ill-

intentioned as to be incurable by a curative instruction. State v. Stenson, 132

Wn.2d 668, 719, 940 P.2d 1239 (1997).

        Brant contends the prosecutor's remarks were misconduct because they

"referred to defense counsel's argument as 'offensive.'" Br. of Appellant at 14. But

as discussed above, it is generally not misconduct to comment negatively on

counsel's arguments. The remarks at issue here focused on counsel's argument

and at worst only indirectly criticized defense counsel. The remarks were also


        4 See also State v. Reed. 102Wn.2d 140, 143, 684 P.2d 699 (1984) (improper to urge jury
not to be swayed by defendant's "city lawyers"); State v. Warren. 165 Wn.2d 17, 29-30, 195 P.3d
940 (2008) (improper to argue that all defense attorneys mischaracterize evidence and twist the
facts); State v. Gonzales, 111 Wn. App. 276, 284, 45 P.3d 205 (2002) (improperto argue that,
unlike defense lawyers, prosecutors take an oath " 'to see that justice is served'"); State v.
Neqrete, 72 Wn. App. 62, 66-67, 863 P.2d 137 (1993) (improper to argue that defense counsel is
being paid to twist the words of a witness).

                                               -12-
No. 73955-7-1/13


provoked by defense counsel's earlier remarks suggesting that Deanna was not

"scareable" and that her crying "in the right spots" during her testimony was

inauthentic. VRP (7/29/15) at 325-26. In any event, to the extent there was any

impropriety in the prosecutor's isolated remark, it was not so flagrant and ill-

intentioned as to be incurable.5

        Because Brant's claims of error fail, his cumulative error argument fails as

well.


        Affirmed.




                                                             •k      f,U t^&~.       ^
WE CONCUR:




                                                                               7T




         5See e^, Warren. 165 Wn.2d at 29-30 (remarks disparaging defense attorneys in
 general and calling defense argument a"'classic example of taking these facts and completely
 twisting them ... and hoping that you are not smart enough to figure out what in fact they are
 doing'" were not so flagrant and ill-intentioned as to be incurable); Neqrete, 72 Wn. App. at 66
 (remark that defense counsel "'is being paid to twist the words of the witnesses'" was curable).


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