                                                                           FILED
                                                                          MAY 7, 2019
                                                                 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. 35350-8-III
                       Respondent,              )
                                                )
        v.                                      )
                                                )
 DANIEL HERBERT DUNBAR,                         )         UNPUBLISHED OPINION
                                                )
                       Appellant.               )

       Siddoway, J. — Daniel Dunbar was charged in this case with forgery of a check

and the first degree theft of a travel trailer. He decided on the morning of trial to plead

guilty to the forgery, to prevent the jury deciding the theft charge from hearing about the

forgery. But the State argued strenuously and successfully that there remained a proper

purpose under ER 404(b) for admitting evidence of the forged check, which had been

found in the stolen travel trailer.

       Evidence that a check payable to Mr. Dunbar was found in the trailer was relevant

and admissible. But there was no proper purpose under ER 404(b) for admitting

additional evidence establishing that the check was fraudulently issued. Because the

error was not harmless, we reverse and remand for a new trial. Issues of consecutive

sentencing and legal financial obligations will also need to be addressed in resentencing

Mr. Dunbar on the forgery count.
No. 35350-8-III
State v. Dunbar


                      FACTS AND PROCEDURAL BACKGROUND

       On September 11, 2016, following up on a citizen’s tip, Sergeant Brian Eckersley

located a travel trailer that had been stolen from the driveway of a Spokane residence

sometime after the early morning of September 4, when the couple that owned it left for

vacation. He called Margaret Ferrell, who had reported the trailer missing, and asked her

to bring the keys to the residence on Sundown Drive in Spokane Valley, where he had

found it parked. When Ms. Ferrell and her husband arrived, the sergeant used their keys

to open the trailer, which was unoccupied but contained clothing and other items that

were not the Ferrells’. The Ferrells identified the contents that were not theirs. Among

items that did not belong to the Ferrells was what Sergeant Eckersley would describe in

his police report as an “obvious forged check” made out to Daniel H. Dunbar, whom the

sergeant already suspected of having resided in the stolen trailer. Clerk’s Papers (CP) at

2. After removing property that did not belong to the Ferrells, the sergeant allowed them

to leave with the trailer.

       The next evening, Sergeant Eckersley visited Mr. Dunbar, who had been picked

up on warrants a couple of nights earlier and was being held in the Spokane County Jail.

After being read his Miranda1 rights, Mr. Dunbar agreed to speak. He acknowledged that

he and his girlfriend Brittany Snow had been staying in the trailer, which Sergeant



       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              2
No. 35350-8-III
State v. Dunbar


Eckersley says Mr. Dunbar claimed he rented on August 28. Mr. Dunbar said he rented it

for $315 a month from a man named Ocean who owned the Sundown Drive property. At

first he told Sergeant Eckersley that he had only driven the trailer away from the property

once, to a nearby dumping station. When told that someone saw him with the trailer on

September 5 on North Myrtle Street, however, he admitted stopping there to show the

trailer to his 10-year-old son. According to Sergeant Eckersley, Mr. Dunbar also

admitted telling his son that he had purchased the trailer. Mr. Dunbar denied having any

knowledge that the trailer had been recently stolen.

       Asked about the check that the sergeant found in the trailer, Mr. Dunbar said it

was a paycheck. The check was drawn on the account of Grassroots Therapy Group

(Grassroots), and according to Sergeant Eckersley, Mr. Dunbar claimed to have worked

for Grassroots doing maintenance for a couple of months. Asked who he worked for, he

identified his boss as “AZ.” Report of Proceedings (RP) at 409.

       On September 14, Sergeant Eckersley listened to Mr. Dunbar’s jail phone calls

from the prior day. Two calls made to Ms. Snow were of interest to the sergeant. In the

first, a morning call on September 13, Mr. Dunbar talked to Ms. Snow about her being

contacted by the police about the trailer and at one point said, “Good. That’s exactly

what you need to tell them”; later, he said, “[I]f [the] cops wouldn’t have come, it would

have been fine.” RP at 414. In a phone call to Ms. Snow that took place a little while

later, she was upset about the fact that she had no place to live and Mr. Dunbar

                                             3
No. 35350-8-III
State v. Dunbar


responded, “I could take another trailer,” and laughed. RP at 414-15. Later in the

conversation, Mr. Dunbar and Ms. Snow talked about the check the sergeant had found in

the trailer.

        Mr. Dunbar was charged with one count of first degree theft of the trailer and one

count of forgery, for the fraudulent check. On the first day of trial, Mr. Dunbar moved to

sever trial of the two counts. The motion was denied. Immediately upon the court’s

ruling, defense counsel notified the court that Mr. Dunbar wished to plead guilty to the

charge of forgery and proceed to trial on the first degree theft.

        During a CrR 3.5 hearing that followed, Mr. Dunbar challenged the relevance of a

statement about the check that he contended bore only on the forgery charge. Defense

counsel argued:

        I don’t deny that the check can be discussed in the context of there is a
        check found in the trailer made out to Daniel Dunbar. But the underlying
        issues around that check and its legitimacy are removed. I don’t think it’s
        relevant . . . clearly any probative value is highly outweighed by its
        prejudicial effect.

RP at 171. Defense counsel continued, “We have had concerns with [the fraudulent

check] from the beginning,” and characterized it as the reason Mr. Dunbar moved to

sever trial of the charges. Id. The court agreed, stating “I’m not comfortable yet making

a comprehensive order in limine, but my ruling at this time is that any relevance that the

check was forged is outweighed by the undue prejudice that it was forged.” RP at 175.




                                              4
No. 35350-8-III
State v. Dunbar


       After jury selection and before the State’s case-in-chief, the defense learned from

the prosecutor that the State still intended to call as a witness Lori Eastep, an owner of

Grassroots. Mr. Dunbar asked that the State be required to make an offer of proof of her

testimony, which he feared would be offered in “a veiled attempt to show the issue of the

check being forged.” RP at 315. In response, the State reminded the court that Mr.

Dunbar told people he was either renting or had purchased the trailer and had also told

Sergeant Eckersley that the Grassroots check was a paycheck. The prosecutor argued:

       Ms. Eastep will testify . . . that at no point in time did Grassroots Therapy
       Group ever employ Mr. Dunbar to do any maintenance work. He has never
       worked for that company and that nobody who had the authority to issue
       checks on that account had ever issued a check to Mr. Dunbar. In other
       words, can’t make the argument that he had a job working maintenance for
       Grassroots Therapy as a basis to say that he purchased or was renting the
       trailer. That’s it. Nothing about forged. Just that they never sent, never
       gave him a check.

RP at 317.

       Mr. Dunbar replied that neither in his police report nor during the CrR 3.5 hearing

had Sergeant Eckersley ever said Mr. Dunbar attributed his ability to rent or purchase the

trailer to the check or the work he had done for Grassroots.2 Mr. Dunbar conceded the



       2
         The dissent mistakenly suggests that in speaking with the sergeant, Mr. Dunbar
stated or implied that his work for Grassroots enabled him to rent the trailer, so evidence
that the check was fraudulent was proper contradiction. But as Sergeant Eckersley
admitted at trial, the subject of how Mr. Dunbar and Ms. Snow were paying rent was not
volunteered or inquired into when he interviewed Mr. Dunbar. See RP at 424. Jurors
never even learned the amount of the Grassroots check.

                                              5
No. 35350-8-III
State v. Dunbar


check was admissible dominion evidence. He said he would not object if the State

presented evidence that he had misrepresented to the sergeant that he had done work for

Grassroots, as long as the jury was not told that Grassroots was the drawer of the check.

But he argued that under ER 404(b), there was no legitimate purpose for offering the

“bad act” evidence that the check found in his possession had been fraudulently issued.

       After lengthy argument, the trial court ruled that the “other purpose[ ]” under ER

404(b) for which it would admit Ms. Eastep’s testimony was that it “demonstrates that

[Mr. Dunbar] was not telling the truth to Sergeant Eckersley, at least as Sergeant

Eckersley describes what Mr. Dunbar said.” RP at 338.

       Based on that ruling, the State addressed the fraudulently issued check in its

opening statement. The prosecutor told jurors that Sergeant Eckersley would testify to

finding a check in the stolen trailer that was payable to the defendant, that Mr. Dunbar

told the sergeant it was a payroll check for work he had done for Grassroots, and an

owner of Grassroots was expected to testify that “Mr. Dunbar had never been employed

by Grassroots Therapy to do maintenance work or never been employed by them at all

and that she had never even seen him before and that nobody with authorization to write

checks on the account had written a check to Mr. Dunbar or issued a check to Mr.

Dunbar.” RP at 355.

       In the State’s case-in-chief, it called Ms. Ferrell, who testified that she and her

husband left town early on the morning of September 4, and she learned their travel

                                              6
No. 35350-8-III
State v. Dunbar


trailer was missing in a phone call from her brother on the morning of September 10.

The State called Karen Thompson, who saw Mr. Dunbar with the trailer on Myrtle Street

on September 5 and was suspicious of both the car to which it was poorly hitched and the

location where it was parked. Pictures she took had assisted Sergeant Eckersley in

connecting the trailer to Mr. Dunbar.

      The State called Sergeant Eckersley to testify to his investigation and statements

made by Mr. Dunbar. The State’s final witness was Ms. Eastep, who testified to the fact

that Grassroots did not hire maintenance workers and had never employed anyone named

Daniel Dunbar or anyone named AZ.

      Mr. Dunbar testified in his own defense. In a brief direct examination, he said he

did not tell Sergeant Eckersley that he worked for Grassroots; he claimed he told the

sergeant that he worked for his friend, AZ, whom he identified as Azriah Hulsey. He

said his son misunderstood him if he believed he had purchased the trailer. He claimed

he gave Sergeant Eckersley as much information as he could about Ocean, but without

access to his phone, he could not provide contact information. Finally, he claimed that he

joked when speaking to his girlfriend that he would “take another trailer” because she

was upset and he hoped to make her laugh. In cross-examination, he testified that he had

rented the trailer at the Sundown Drive property on September 4 and never provided the

sergeant with an August 28 rental date.



                                            7
No. 35350-8-III
State v. Dunbar


       Neither lawyer objected during the other’s closing argument. The jury found Mr.

Dunbar guilty of first degree theft. Mr. Dunbar appeals.

                                       ANALYSIS

       Mr. Dunbar makes three assignments of error. He contends the trial court erred by

denying his objection to evidence that the check found in the travel trailer was

fraudulently issued, he raises prosecutorial misconduct challenges to the State’s closing

argument, and he argues that the consecutive sentencing of the forgery conviction is not

statutorily authorized. We address the issues in that order.

I.     THE TRIAL COURT ERRED IN ALLOWING THE STATE TO OFFER ER 404(b) EVIDENCE

       Mr. Dunbar does not contend that the trial court erred in admitting evidence that a

Grassroots check made payable to Daniel H. Dunbar was found in the stolen trailer. At

issue is different evidence: the evidence from which the jury would reasonably infer that

the check was fraudulent. That evidence was Sergeant Eckersley’s testimony that Mr.

Dunbar said the check was a paycheck for maintenance work he performed for

Grassroots combined with Ms. Eastep’s testimony that Grassroots never hired Mr.

Dunbar. Mr. Dunbar made a clear and timely objection that this evidence of the

fraudulent character of the check was not admissible under ER 404.3


       3
        Mr. Dunbar also argues on appeal that the State was improperly relying on his
poverty as propensity evidence. See State v. Jones, 93 Wn. App. 166, 174, 968 P.2d 888
(1998) (holding that financial status evidence is not per se inadmissible, but may be more
prejudicial than probative). He did not object on that basis in the trial court and we will

                                             8
No. 35350-8-III
State v. Dunbar


       Evidence of a person’s other bad acts is never admissible to prove the character of

a person to show that he acted in conformity with his character on a particular occasion.

State v. Gresham, 173 Wn.2d 405, 420, 269 P.3d 207 (2012). But evidence of a person’s

other acts may be admissible for other purposes, including to prove motive, opportunity,

or intent. The purpose must be of such significance to the current trial that the evidence

is highly probative and relevant to prove an “essential ingredient” of the current crime.

State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Evidence admissible under

ER 404(b) is substantive evidence. State v. Wilson, 60 Wn. App. 887, 891, 808 P.2d 754

(1991).

       To satisfy itself that evidence of prior misconduct is not being employed for the

purpose forbidden by ER 404(b), the trial court must, before admitting such evidence,

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

the purpose for which the evidence is sought to be introduced, (3) determine whether the

evidence is relevant to prove an element of the crime charged, and (4) weigh the

probative value against the prejudicial effect.” State v. Yarbrough, 151 Wn. App. 66,

81-82, 210 P.3d 1029 (2009) (citing State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d

1159 (2002)). The trial court must conduct this analysis on the record. State v. Sublett,

156 Wn. App. 160, 195, 231 P.3d 231 (2010).



not entertain the argument for the first time on appeal. See RAP 2.5(a).

                                             9
No. 35350-8-III
State v. Dunbar


       The trial court found that the purpose for which the State sought to introduce

evidence that the check was not a bona fide paycheck was that it “demonstrates that [Mr.

Dunbar] was not telling the truth to Sergeant Eckersley, at least as Sergeant Eckersley

described what Mr. Dunbar said.” RP at 338. Where evidence of a person’s conduct is

being offered for the purpose of attacking his credibility, however, the applicable rule is

ER 608(b), not ER 404(b). ER 608(b) provides that specific instances of conduct may,

“in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired

into on cross examination.”

       The different application of the rules was explained by this court in Wilson. In

that case, the defendant’s wife provided testimony supporting his defense that he had

never molested the wife’s younger sister. The court allowed the State to impeach the

wife by questioning her about having lied on a state financial assistance form. As Wilson

explains, none of the information on the state financial assistance form was at issue in the

sexual molestation prosecution, so the evidence of the wife’s prior misconduct was not

being offered as substantive evidence under ER 404(b). 60 Wn. App. at 891-92. It was

instead being offered for the limited purpose of impeachment, and its admissibility was

governed by ER 608(b). Id.

       Here, once Mr. Dunbar pleaded guilty to forgery, only the check’s presence in the

trailer was relevant. The fact that it was a fraudulent instrument was not at issue in



                                              10
No. 35350-8-III
State v. Dunbar


prosecuting theft of the travel trailer. The court recognized that the State’s purpose for

offering it was to show Mr. Dunbar’s untruthfulness.

       It was an abuse of discretion for the trial court to overrule Mr. Dunbar’s objection

and allow the State to offer the evidence as substantive evidence under ER 404(b). The

question remains whether the error was harmless. “In analyzing the erroneous admission

of evidence in violation of ER 404(b), we apply the nonconstitutional harmless error

standard.” State v. Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014). This

requires us to decide whether there is a reasonable probability that the outcome of the

trial would have been materially affected absent the error. Id.

       In applying ER 404, the trial court believed the State had a proper purpose for

offering evidence of Mr. Dunbar’s untruthfulness. That ruling strongly suggests that the

court would have allowed the State to attempt to impeach Mr. Dunbar with the same

information under ER 608(b). Importantly, however, evidence suggesting the check was

fraudulent could not have been offered through Sergeant Eckersley and Ms. Eastep.

ER 608(b) states clearly that the instances of conduct offered under the rule “may not be

proved by extrinsic evidence.” Instead, when Mr. Dunbar testified, the prosecutor would

have been able to ask him, e.g., whether the check in his possession was fraudulent. As

Professor Tegland explains:

       [I]f the witness denies the specific misconduct or incident on cross-
       examination, the inquiry is at an end. The cross-examiner must “take the


                                             11
No. 35350-8-III
State v. Dunbar


       answer” (though necessarily the first answer) of the witness and may not
       call a second witness to contradict the first witness. . . .
               . . . The rule is designed to prevent time-consuming litigation over
       issues that are only collateral to the merits of the case.

5A KARL B. TEGLAND, WASHINGTON PRACTICE, EVIDENCE LAW AND PRACTICE §

608.11, at 447-48 (6th ed. 2016) (footnote omitted).

       Mr. Dunbar claims he told Sergeant Eckersley he had done maintenance work for

AZ, not Grassroots, and claimed not to know that the check was a forgery. So his answer

to any question seeking to impeach him would presumably have been, “No,” ending the

inquiry.

       Perhaps because the State expected to try the forgery and theft charges together, its

standalone evidence of theft of the travel trailer was not strong. Sergeant Eckersley had

not recorded his interview of Mr. Dunbar, so there was a dispute over whether Mr.

Dunbar made several incriminating statements or whether the sergeant misunderstood

him. The State had no witness or surveillance evidence tying Mr. Dunbar to the removal

of the travel trailer from the Ferrells’ driveway. It had no witness or surveillance

evidence establishing that it was Mr. Dunbar who first delivered the travel trailer to the

Sundown Drive address. It did not call the owner of the Sundown Drive property to

contradict Mr. Dunbar’s right to rent a trailer at the location or to dispute the existence of

Ocean. It did not have evidence that Mr. Dunbar and Ms. Snow had no assets with which




                                              12
No. 35350-8-III
State v. Dunbar


to pay rent.4 As defense counsel argued in closing, the travel trailer was parked in plain

view and had not been repainted nor had its license plates been removed. Rather than

being sold or discarded, almost all of the Ferrells’ belongings (which Mr. Dunbar claimed

he understood were Ocean’s) were still in place.

       The State argues that the strongest evidence against Mr. Dunbar was the telephone

recordings of the jailhouse calls, but even they were subject to alternative explanations

and characterizations. And because the State had not made the recordings available to

the defense by the time of trial, the court allowed the State to present only the

information about the calls included in Sergeant Eckersley’s police report.

       We conclude that the error was not harmless, particularly given the cumulative

effect of some prosecutorial misconduct, which we turn to next.

II.    PROSECUTORIAL MISCONDUCT

       For the first time on appeal, Mr. Dunbar contends that two areas of the State’s

closing argument constituted prosecutorial misconduct. “Prosecutorial misconduct may

deprive a defendant of his constitutional right to a fair trial.” In re Pers. Restraint of


       4
         The State proved that Mr. Dunbar never worked for Grassroots and elicited his
testimony in cross-examination that Ms. Snow provided the cash to pay the first month’s
rent. On the issue of whether Mr. Dunbar or Ms. Snow had resources to pay $315 for the
first month’s rent, Sergeant Eckersley admitted when cross-examined that he didn’t know
if he asked Mr. Dunbar about employment apart from the maintenance work he had done
for Grassroots or AZ, and didn’t know if Mr. Dunbar was receiving unemployment
compensation, social security disability, or other public assistance. Asked if Ms. Snow
had a job, the sergeant testified that he didn’t think so, but he didn’t know.

                                              13
No. 35350-8-III
State v. Dunbar


Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). To prevail on a claim of

prosecutorial misconduct, Mr. Dunbar must first show that the prosecutor’s statements

were both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653

(2012). Once a defendant establishes that the statements were improper, prejudice is

determined under one of two standards; where, as here, the defendant did not object at

trial, the defendant is deemed to have waived any error unless the prosecutor’s

misconduct was so flagrant and ill intentioned that an instruction could not have cured the

resulting prejudice. Id. at 760-61.

       Presumption of innocence / burden of proof. Mr. Dunlap first argues that the

prosecutor committed misconduct by arguing in closing that there were limits to the

presumption of innocence. The issue arose because of the nature of evidence the State

relied on, given other evidence it lacked. Because it had little evidence contradicting Mr.

Dunbar’s version of events, the prosecutor asked jurors in his initial closing argument to

exercise their common sense in assessing the plausibility of Mr. Dunbar’s claim that he

was renting the trailer for $315 a month from someone named Ocean whose last name

Mr. Dunbar could not recall.

       In response, the defense argued in part:

             The instructions that you have been read remind you that Mr.
       Dunbar is presumed innocent and that he bears no burden. . . . [The
       prosecutor], in his cross-examination of Mr. Dunbar, asked him extensively
       about why didn’t Mr. Dunbar provide the contact information for the
       homeowner; why didn’t he give him the full name or the contact

                                            14
No. 35350-8-III
State v. Dunbar


       information for this person who had written him a check. But that’s all an
       attempt by the State to shift the burden on Mr. Dunbar. Why didn’t he
       prove his innocence to the detective or the sergeant? Because he doesn’t
       have to. He didn’t have to that day and he didn’t have to today.

RP at 600.

       It is the following rebuttal argument by the prosecutor that Mr. Dunbar argues

constituted misconduct:

       The presumption of innocence attaches when somebody is formally
       charged. You can be arrested, but unless you are charged, there is no
       presumption of innocence. So at the time when Sergeant Eckersley is
       speaking and interviewing Mr. Dunbar, there is no presumption of
       innocence attached to that. It attaches as soon as the Information is filed
       charging somebody for the crime. That’s where it attaches.
              So to claim that somehow the presumption of innocence attached
       to Mr. Dunbar as he’s sitting in that interview with Sergeant Eckersley, it
       might as well be a disco ball dropping down.

RP at 603-04.

       The State concedes on appeal that this argument was “perhaps confusing or

inarticulate,” but contends it was a “fair response” to the defendant’s argument. Br. of

Resp’t at 26-27. We disagree. Defense counsel’s argument was proper. But the

prosecutor’s argument could lead jurors to believe that Mr. Dunbar was not required to

prove his innocence at trial, but had a duty to provide exculpatory information when he

was questioned by Sergeant Eckersley.

       Nonetheless, while the State’s argument was improper, it could have been

addressed by a timely objection and curative instruction by the court.



                                            15
No. 35350-8-III
State v. Dunbar


       Personal beliefs and opinions about truthfulness and motive. Mr. Dunbar next

argues that the prosecutor improperly conveyed his opinion that Mr. Dunbar was not

telling the truth. “[A] prosecutor may not properly express an independent, personal

opinion as to the defendant’s guilt.” State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221

(2006). On the other hand, when a prosecutor shows that other evidence contradicts a

defendant’s testimony, the prosecutor may argue that the defendant is lying. Id. at 59.

Mr. Dunbar argues the prosecutor committed misconduct in the following argument in

his initial closing:

       And as Sergeant Eckersley says, “Well, what about this?” Mr. Dunbar
       comes up with something else. Comes up with something else, comes up
       with something else. And as the circle starts to close on Mr. Dunbar
       because he’s not telling—he is not telling the detective what actually
       happened.

RP at 588-89 (emphasis added).5

       As earlier observed, when it came to facts material to the charge of first degree

theft, the State had little contradictory evidence. In context, then, the prosecutor’s



       5
          Mr. Dunbar contends the argument was especially egregious because the
prosecutor had been earlier cautioned by the trial court to “please . . . not even go close to
the line of ultimate opinion about either guilt or credibility.” RP at 469. This happened
after the prosecutor questioned Sergeant Eckersley about Mr. Dunbar’s demeanor during
questioning and, after the sergeant described it, asked the further question, “How did you
interpret that?” The sergeant answered, “A sign of guilt.” RP at 437.
        An objection to the answer was sustained and the trial court granted a request to
strike it. It denied a motion for a mistrial, and then cautioned the prosecutor against
expressing opinions on guilt or credibility.

                                             16
No. 35350-8-III
State v. Dunbar


argument that Mr. Dunbar “was not telling the detective what actually happened” appears

based on the implausibility of Mr. Dunbar’s statements rather than any contradictory

evidence. In arguing the implausibility, however, the prosecutor repeatedly told jurors to

“use your individual collective common sense”; he did not couch his argument in terms

of what he personally believed. RP at 579. In context, we do not find the prosecutor’s

argument to be misconduct, and any improper implication could have been cured had an

objection been made.

       More problematic are the prosecutor’s arguments that Sergeant Eckersley had no

motive but to tell the truth and it would be a crime for him to wrongly cause Mr. Dunbar

to be charged. A prosecutor “may not vouch for a government witness’s credibility.”

State v. Embry, 171 Wn. App. 714, 752, 287 P.3d 648 (2012). And “[i]t is . . .

impermissible for a prosecutor to ask a jury to consider whether law enforcement agents

would risk their careers to commit perjury.” 6 WAYNE R. LAFAVE, JEROLD H. ISRAEL,

NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE § 24.7(e), at 602 & n.67 (4th ed.

2015) (citing cases).

       The United States Seventh Circuit Court of Appeals remanded a case for fact-

finding when defense counsel failed to object to the following closing argument by a

prosecutor in Jordan v. Hepp, which the appellate court characterized as “a textbook case

of improper vouching:”

       In Jordan’s case, the prosecutor had this to say during his closing argument:

                                            17
No. 35350-8-III
State v. Dunbar


              Now, the big question here is the credibility. Who do you believe?
              . . . Somebody’s lying. Who is it? [The detective’s] going to put
              her whole career and her future on the line for this case? She does
              this everyday. She’s investigating homicide cases everyday for
              years. Who has the most to lose based on your verdict in this case?
              Her or him? . . . It boils down to credibility.
       The prosecutor then repeated, “[w]ho has the most to lose here? Her or
       him? Keep that in mind when you evaluate his testimony.”

831 F.3d 837, 847 (7th Cir. 2016) (alterations in original). The appellate court remanded

for a trial court determination whether defense counsel’s failure to object might have

been strategic. It did not hesitate in finding prejudice. It cited the United States Supreme

Court for the proposition that “when a prosecutor improperly vouches for a witness’s

credibility, and the case is not otherwise a strong one, ‘[p]rejudice to the cause of the

accused is so highly probable that we are not justified in assuming its nonexistence.’” Id.

at 848 (quoting Berger v. United States, 295 U.S. 78, 89, 55 S. Ct. 629, 79 L. Ed. 1314

(1935)).

       Here, in rebuttal, the prosecutor’s argument was indistinguishable from that of the

prosecutor in Jordan:

       Who has any motivation in this matter? Sergeant Eckersley has no
       motivation in the matter. Sergeant Eckersley is simply an investigator who
       reported what he found, testified to it, and he recorded it in a report that
       was filed within days of the contact with Mr. Dunbar.

RP at 601-02. Strengthening his argument that jurors should believe the sergeant, the

prosecutor added, “[T]here is no motive on the part of Sergeant Eckersley or the State to



                                             18
No. 35350-8-III
State v. Dunbar


falsely accuse Mr. Dunbar of a crime. That’s called malicious prosecution. That itself is

a crime.” RP at 602 (emphasis added).

       The prosecutor’s statements were improper. We need not decide whether the

misconduct was so flagrant and ill intentioned that an instruction could not have cured the

resulting prejudice because we are satisfied that in combination with the trial court’s error

in admitting the fraudulent character of the check, a new trial of the theft charge is

required. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).

III.   RESENTENCING IS REQUIRED, GIVEN AN INADEQUATELY SUPPORTED CONSECUTIVE
       SENTENCE

       The trial court had presided over another criminal case involving Mr. Dunbar,

cause no. 16-1-04019-2. It sentenced him in both cases on the same day. In imposing

sentence, it ran the 22-month forgery sentence imposed in this case consecutive to the

sentences imposed in cause no. 16-1-04019-2, indicating that it was doing so under RCW

9.94A.589(3). That statute does not apply to sentences that are imposed on the same day.

       A different provision, RCW 9.94A.589(1)(a), authorized the trial court to order the

consecutive sentencing, but only under the exceptional sentence provisions of RCW

9.94A.535. Mr. Dunbar entered the sentencing hearing with an offender score of 12

points, and the State had asked the court to impose exceptional consecutive sentences

under the “free crimes” aggravator provided by RCW 9.94A.535(2)(c).




                                             19
No. 35350-8-III
State v. Dunbar


       RCW 9.94A.535 provides that in imposing an exceptional sentence, “the court

shall set forth the reasons for its decision in written findings of fact and conclusions of

law.” The trial court did not enter findings and conclusions supporting exceptional

sentencing. The entry of written findings has been held to be “essential.” State v.

Friedlund, 182 Wn.2d 388, 393, 341 P.3d 280 (2015).

       If the trial court intended to impose an exceptional sentence, entry of supporting

findings is required. If it did not, then the forgery sentence must run concurrent to the

other sentences imposed on the same day.

IV.    RELIEF FROM LFOS

       Finally, Mr. Dunbar has moved this court to direct the trial court to strike its

imposition of the $200 criminal filing fee and the $100 DNA6 collection fee. Because

this matter was on direct review at the time legislative changes to the application of those

fees became effective in June 2018, the changes apply. State v. Ramirez, 191 Wn.2d 732,

749, 426 P.3d 714 (2018).

       The record reveals that Mr. Dunbar was found indigent by the trial court at the

time of sentencing, so he is entitled to relief from the $200 criminal filing fee. RCW

36.18.020(2)(h). In light of his criminal history, it is likely his DNA has previously been

collected, in which case he is entitled to relief from the DNA collection fee. RCW



       6
           Deoxyribonucleic acid.

                                              20
No. 35350-8-III
State v. Dunbar


43 .43. 7 541. Upon resentencing, the court shall strike the criminal filing fee and shall

strike the DNA collection fee unless the State demonstrates that Mr. Dunbar's DNA has

not previously been collected.

       We reverse the conviction for first degree theft and remand for retrial of that

charge and resentencing.

       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.




I CONCUR:




Lawrence-Berrey, C.J.




                                              21
                                      No. 35350-8-111

       KORSMO, J. ( dissenting) -   The story behind the forged check was highly relevant

and added little to the overall prejudice of the evidence against Mr. Dunbar.

Accordingly, I do not see that the trial court abused its discretion in admitting the

evidence under limiting rules that prohibited proof that Mr. Dunbar himself had forged

the check.

       Mr. Dunbar concedes that the check was admissible to help establish his dominion

and control over the stolen trailer. Thus, the relevance of the evidence is clear. It, and

any other items "belonging" to Mr. Dunbar, helped show that he controlled the stolen

trailer. 1 The more important piece of the puzzle, however, was that he told a lie about the

check while also lying about renting the trailer.

       During the same jail conversation in which he told Sergeant Eckersley that he and

his girlfriend were renting the trailer, he described the check as a paycheck for work he

had done for Grassroots Therapy Group. The two lies were part and parcel of the same

story and both were fair game for the prosecutor to go after. This was basic impeachment


       1
         The paycheck also supported Mr. Dunbar's claim that he was merely renting the
trailer by suggesting that he was employed and capable of paying rent. The State
necessarily would want to counter that erroneous impression by showing that the check
was not evidence of employment.
No. 35350-8-111
State v. Dunbar-Dissent


by contradiction and it served to disprove Mr. Dunbar's initial defense. He lied about

working for Grassroots Therapy Group and receiving pay from them. The company

came in and disputed his statements. All was proper. There was no mention about the

forged check, nor was there any indication who might have prepared it. The trial judge

limited the evidence to its essential points while still allowing the prosecutor to contest a

false tale.

        Similar practice has been permitted over the years on evidence far less germane

than this one. When someone "puts his prior conduct into issue by testifying as to his

own past good behavior, he may be cross-examined as to specific acts of misconduct

unrelated to the crime charged." State v. Emmanuel, 42 Wn.2d 1, 14, 253 P.2d 386

(1953) (emphasis added); accord, State v. Swan, 114 Wn.2d 613, 653-654, 790 P.2d 610

(1990); State v. Renneberg, 83 Wn.2d 735, 738, 522 P.2d 835 (1974); State v. Gefeller,

76 Wn.2d 449, 455, 458 P.2d 17 (1969), overruled on other grounds by State v. Hill, 123

Wn.2d 641, 870 P .2d 313 ( 1994 ). This case is even closer because the misconduct was in

fact related to the crime. 2




       2
         This was not a situation where the defendant was being impeached on a collateral
matter. "It is a well recognized and firmly established rule in this jurisdiction, and
elsewhere, that a witness cannot be impeached upon matters collateral to the principal
issues being tried." State v. Oswalt, 62 Wn.2d 118, 120-121, 3 81 P .2d 617 (1963) (citing
numerous cases).

                                              2
No. 35350-8-III
State v. Dunbar-Dissent


       Mr. Dunbar should not be allowed to provide a story explaining his allegedly

lawful occupancy of the trailer without fear of his lie being contradicted. Knowing what

the defense theory of the case was, the prosecutor understandably worked to undercut it

while also proving his own case. The critical evidence here was not who uttered the

forged check, an issue that was never mentioned before the jury, but whether Mr.

Dunbar's false claim of employment, supported by the check, could be countered by his

putative employer. The trial judge understandably decided this was proper.

       Since the trial court had very tenable grounds for admitting the evidence, there

simply was no abuse of discretion. I respectfully dissent.




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