                                                                         FILED
                                                                        MAY 5, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

 STATE OF WASHINGTON,                          )
                                               )        No. 36582-4-III
                      Respondent,              )
                                               )
        v.                                     )
                                               )
 RICHARD JAMES ROBERTS,                        )        UNPUBLISHED OPINION
                                               )
                      Appellant.               )

       SIDDOWAY, J. — A jury found Richard Roberts guilty of felony harassment of

another (threat to kill), based on an angry call made to a hospital in which Mr. Roberts

threatened to kill hospital workers and blow up the hospital. Mr. Roberts argues on

appeal that the State committed prosecutorial misconduct in closing argument by

mentioning facts outside the evidence and vouching for its chief witness. Finding no

misconduct, we affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       At around 10:00 p.m. on October 18, 2017, Richard Roberts placed a telephone

call to the Astria Regional Medical Center after receiving a call from Tammy Chadek, his

significant other, who was then a patient at the hospital. She told Mr. Roberts she had

been questioned rudely by a doctor and wanted Mr. Roberts to pick her up and take her
No. 36582-4-III
State v. Roberts


home. Mr. Roberts did not have a car. According to Ms. Chadek, the call ended when

she hung up on him.

      Mr. Roberts then called the hospital and spoke with Adam Frankovic, the nursing

supervisor and the acting administrator that evening. Mr. Frankovic would later testify

that Mr. Roberts

      was looking for the doctor who was consulting with the patient in [room]
      447. I explained that I was not the doctor but I was a nursing supervisor.
      He had a complaint. I said, I can help you try and figure this out. After
      that, he went into yelling and screaming, threatening to, and I quote, blow
      the fucking doctor’s head off and shoot up the hospital.

Report of Proceedings (RP) at 216. Asked about any specific threats made by Mr.

Roberts, Mr. Frankovic would later testify, “He also said that he was going to come shoot

up the hospital, blow it up and kill me and blow my head off as well.” Id.

      Mr. Frankovic took Mr. Roberts’s threats seriously, and told Mr. Roberts he was

contacting the Yakima Police Department. After hanging up on Mr. Roberts, Mr.

Frankovic placed the hospital in lockdown and hospital security contacted police.

      After the hospital had been placed in lockdown, Mr. Roberts called a second time.

Mr. Roberts’s second call was answered by Pam Hunter, a monitor tech, who spoke with

Mr. Roberts briefly before handing the phone to Mr. Frankovic. According to an

affidavit of probable cause prepared by a responding Yakima police officer, Ms. Hunter

told him Mr. Roberts “seemed very agitated over the phone and made a statement similar

to ‘I’m going to blow you all up.’” Clerk’s Papers (CP) at 2.

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No. 36582-4-III
State v. Roberts


       Mr. Frankovic later testified that after Ms. Hunter handed the phone to him, Mr.

Roberts “again went into a tirade that he’s coming to shoot us up, blow us up, blow my

head off.” RP at 244. Mr. Frankovic told Mr. Roberts the police had been contacted and

Mr. Roberts was not allowed on hospital premises.

       After Yakima police officers responded to the hospital, one of the officers spoke to

Mr. Roberts by phone. Mr. Roberts told the officer he had no firearms and did not plan

to harm anyone. Officers then traveled to his home, where they placed him under arrest.

When arrested, Mr. Roberts was upset and yelling, saying he had done nothing wrong.

He admitted that in his calls to the hospital he had threatened to “get their heads,” but

claimed he meant only to “get their jobs taken away.” RP at 274.

       The State charged Mr. Roberts with two counts of felony harassment of another

(threat to kill). Count 1 pertained to the threats to Mr. Frankovic and count 2 pertained to

the threats to Ms. Hunter.

       On the morning of trial, the prosecutor explained that he would be dismissing the

count pertaining to Ms. Hunter. He told the court that the day before, Ms. Hunter had

faxed a note from her doctor that testifying would be too stressful for her. Defense

counsel asked that Ms. Hunter be excluded entirely as a witness, since the defense had

been attempting to make contact with her for 16 months without success. The State

affirmed it would not call Ms. Hunter as a witness but said, “[i]t might be a good idea to



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No. 36582-4-III
State v. Roberts


mention that name to the jury just in case someone knows her. Her name will probably

come up in the trial.” RP at 28. Defense counsel agreed.

        Mr. Frankovic was called as the State’s first witness. He testified that he feared

Mr. Roberts’s threats would be carried out because of “the tone of his voice, very angry,

yelling, screaming to the point I couldn’t get in words to help calm him down.” RP at

217. During cross-examination, defense counsel asked how many calls he had received,

and Mr. Frankovic responded,

        A.     There was one that I took, and there was another one made to the
               telemetry floor.
        Q.     Just for you, how many phone calls did you take?
        A.     One. I spoke to him twice. The initial one was from the operator to
               me. Then the next one he had called the floor and I was handed the
               phone.

RP at 235. Asked further about the second call in redirect examination, Mr. Frankovic

said:

        So on the second call, when I got up to the ACU unit after putting the
        hospital on lockdown, I was handed a phone. It went from Pam, who’s the
        monitor tech to the ACU charge nurse, who didn’t say anything and handed
        it to me. I asked who it was. They said that it was the significant other of
        447 again.

RP at 244.

        The prosecutor brought up Ms. Hunter’s name one more time in redirect

examination, asking Mr. Frankovic if she had stress issues. An objection that the

question was outside the scope of cross-examination was sustained. Outside the presence


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No. 36582-4-III
State v. Roberts


of the jury, the prosecutor explained he was concerned the defense would imply that Ms.

Hunter’s evidence must be unhelpful to the State or it would have called her as a witness.

He said he might recall Mr. Frankovic to explain that Ms. Hunter experienced medical

issues from stress, “by way of an explanation as to why this witness is not testifying.”

RP at 302. The concern was resolved by defense counsel’s agreement that he never

intended to make a missing witness argument and, “I’m not going there.” RP at 305.

       In the defense case, Mr. Roberts called as witnesses Ms. Chadek and a friend,

Marie Holestine, who testified that she had been sitting with Mr. Roberts in his living

room when he called the hospital. She testified that the phone was on speaker, and she

heard the conversation. She testified that Mr. Roberts’s only threat to the hospital

workers was to “have their jobs taken.” RP at 324. She acknowledged that Mr. Roberts

was upset and pacing during the calls.

       When cross-examined, Ms. Holestine admitted that when Mr. Roberts was

arrested she was questioned by police and told them she had not paid much attention to

Mr. Roberts’s calls and only heard parts of them. Explaining the discrepancy, she said

she lied to the officer at that time because she did not want to get involved.

       Mr. Roberts did not testify.

       The overarching theme of the State’s closing argument was that if jurors believed

Mr. Frankovic’s testimony, then all of the elements the State was required to prove were

satisfied. The prosecutor then argued reasons why jurors should believe Mr. Frankovic.

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No. 36582-4-III
State v. Roberts


In the course of arguing why it was not reasonable to suggest that Mr. Frankovic was

mistaken about Mr. Roberts’s threats, the prosecutor told jurors:

                He was very specific in the language he quoted. His assistant had
       received those threats. I would imagine those words would be burned into
       memory, not something he would be likely to forget as much as he might
       like to.

RP at 384-85 (emphasis added). The defense did not object to this argument, nor did it

ever object that the prosecutor was vouching for any State witness.

       In the defense closing argument, Mr. Roberts’s counsel challenged Mr.

Frankovic’s testimony. He agreed that “[i]t all comes down to credibility.” RP at 401.

       The jury found Mr. Roberts guilty. He appeals.

                                         ANALYSIS

       Mr. Roberts contends the prosecutor committed misconduct during closing

argument by referring to threats having been made to Ms. Hunter, a fact not in evidence,

and by vouching for Mr. Frankovic’s credibility.

       Prosecutorial misconduct is not attorney misconduct in the sense of violating rules

of professional conduct. State v. Fisher, 165 Wn.2d 727, 740 n.1, 202 P.3d 937 (2009).

It is, instead, a term of art that refers to “prosecutorial mistakes or actions [that] are not

harmless and deny a defendant [a] fair trial.” Id. To succeed on a prosecutorial

misconduct claim, an appellant has the burden of establishing that the prosecutor’s




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No. 36582-4-III
State v. Roberts


conduct was improper (as being at least mistaken) and was prejudicial. State v. Stenson,

132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997).

       Where, as here, a defendant fails to object in the trial court to a prosecutor’s

statements, he waives his right to raise a challenge on appeal unless the remark was so

flagrant and ill-intentioned that it evinced an enduring and resulting prejudice that could

not have been neutralized by an admonition to the jury. Id. at 719. “Under this

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

have obviated any prejudicial effect on the jury’ and (2) the misconduct resulted in

prejudice that ‘had a substantial likelihood of affecting the jury verdict.’” State v.

Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012) (quoting State v. Thorgerson, 172

Wn.2d 438, 455, 258 P.3d 43 (2011)).

       “In the context of closing arguments, the prosecuting attorney has ‘wide latitude in

making arguments to the jury and prosecutors are allowed to draw reasonable inferences

from the evidence.’” Fisher, 165 Wn.2d at 747 (quoting State v. Gregory, 158 Wn.2d

759, 860, 147 P.3d 1201 (2006), overruled on other grounds by State v. W.R., 181 Wn.2d

757, 336 P.3d 1134 (2014)). Alleged improper comments are reviewed in the context of

the argument as a whole. Id.

       Reference to facts not in evidence

       During closing arguments, it is improper for a prosecutor to make statements or

submit facts to the jury that are not supported by the evidence. In re Pers. Restraint of

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No. 36582-4-III
State v. Roberts


Glasmann, 175 Wn.2d 696, 705-06, 286 P.3d 673 (2012). Evidence was presented

during trial that Ms. Hunter had answered Mr. Roberts’s second call and handed the

phone to Mr. Frankovic. Because the State dismissed the harassment charge pertaining to

her, however, no evidence was offered during the trial that she was threatened during her

short time on the call.

       The jurors had received the pattern closing instruction, which includes the

following admonition:

              The lawyers’ remarks, statements and arguments are intended to
       help you understand the evidence and apply the law. It is important,
       however, for you to remember that the lawyers’ statements are not
       evidence. The evidence is the testimony and the exhibits. The law is
       contained in my instructions to you. You must disregard any remark,
       statement or argument that is not supported by the evidence or the law
       in my instructions.

RP at 375.

       If defense counsel had objected when the prosecutor referred to an assistant

receiving threats, the court would have reminded the jurors that the lawyers’ arguments

were not evidence, which would have been sufficient to cure any prejudice. Prejudice

was unlikely in any event, because any threat received by Ms. Hunter was irrelevant to

the only charge being decided by the jury. Indeed, because jurors heard nothing about

any threat made personally to Ms. Hunter, they might have construed “[h]is assistant had

received those threats,” RP at 384, as referring to the fact that the threats to Mr.

Frankovic were not only to blow his head off, but to shoot up and blow up the hospital.

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No. 36582-4-III
State v. Roberts


       Vouching

       Turning to the contention that the prosecutor vouched for Mr. Frankovic’s

credibility, it is improper for a prosecutor to personally vouch for or against a witness’s

credibility. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). “Improper vouching

generally occurs (1) if the prosecutor expresses his or her personal belief as to the

veracity of the witness or (2) if the prosecutor indicates that evidence not presented at

trial supports the witness’s testimony.” State v. Ish, 170 Wn.2d 189, 196, 241 P.3d 389

(2010). “Prosecutors may, however, argue an inference from the evidence, and

prejudicial error will not be found unless it is ‘clear and unmistakable’ that counsel is

expressing a personal opinion.” Brett, 126 Wn.2d at 175 (quoting State v. Sargent, 40

Wn. App. 340, 344, 698 P.2d 598 (1985)).

       Mr. Roberts points to four statements made by the prosecutor. Three were made

during the initial closing argument, after the prosecutor—as his “starting point”—asked

jurors to think about “[w]hat are the reasonable explanations why Mr. Frankovic would

call the Yakima Police Department and state he got a phone call from this gentleman”

and relate the alleged threats? RP at 384. The first three challenged statements are:

              Why would he take the stand and testify under oath that that’s what
       Mr. Roberts said to him back on September 18th, 2017?
              ....
              . . . Was he intentionally not telling the truth when he called the
       police department that evening when he came up and testified under
       oath? . . .
              ....

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No. 36582-4-III
State v. Roberts


               . . . I can’t understand why he would say those things unless they
        were true is what I’m arguing to you.

RP at 384-86.

        None of these rhetorical questions or statements constitutes vouching. In the case

of the third, the prosecutor could have better avoided argument that he was stating a

personal opinion by dropping the introductory “I can’t understand” and making the

equivalent argument, “Why would he say those things unless they were true?” In each

case, however, the prosecutor was suggesting that jurors should draw the inference, from

evidence, that Mr. Frankovic had no motive to do anything other than tell the truth.

        The fourth challenged statement was made during rebuttal argument:

               What makes a lot of sense and he was telling the truth. He didn’t
        have a motive not to tell the truth.

RP at 406. The first sentence is not only ungrammatical, but it does not make sense in

context. Whether misspoken or mistranscribed, it appears likely that “and” should be

“is”:

               Is there a reason to believe Mr. Frankovic? You have to look at him
        and observe his demeanor. We’ll talk about what the law tells you about
        witness credibility in a moment. Does he seem like the kind of person to do
        that?
               He’s got a responsible job. He’s basically administrator of the
        whole hospital. He’s in a profession of being a nurse. I would suggest
        those two explanations just don’t make sense.
               What makes a lot of sense [is] he was telling the truth. He didn’t
        have a motive not to tell the truth. Of course, Mr. Roberts did have a
        motive.


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No. 36582-4-III
State v. Roberts


Id. ( emphasis added). Thus understood, the prosecutor was, once again, asking jurors to

infer from evidence (Mr. Frankovic's demeanor, his job, his profession) that Mr.

Frankovic was being honest. Even without this suggested interpretation of the

prosecutor's argument, Mr. Roberts fails to demonstrate "clearly and unmistakably" that

the prosecutor was expressing a personal opinion.

      Affirmed.

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

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

2.06.040.




                                                Siddoway, J.

WE CONCUR:




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