IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

Respondent,

v.

RONALD JOHN BRENNAN, JR.,

Appellant.

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No. 79508-2-I 

DIVISION ONE

ORDER GRANTING MOTION 

FOR RECONSIDERATION, 

WITHDRAWING OPINION, 

SUBSTITUTING OPINION

The appellant, Ronald J. Brennan, Jr., filed a motion for reconsideration for 

the opinion filed on June 15, 2020. A majority of the panel having determined that 

the motion should be granted and that the opinion filed on June 15, 2020 shall be 

withdrawn and a substitute unpublished opinion be filed. Now, therefore, it is hereby

ORDERED that the motion for reconsideration be, and the same is, 

hereby granted. It is further

ORDERED that the opinion filed on June 15, 2020 is withdrawn and a 

substitute unpublished opinion shall be filed.

FOR THE COURT:

Judge
Citations and pinpoint citations are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

Respondent,

v.

RONALD JOHN BRENNAN, JR.,

Appellant.

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No. 79508-2-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, J. — Ronald J. Brennan, Jr. was acquitted of one count of rape 

in the third degree and one count of rape in the second degree, but was convicted 

of two counts of distributing a controlled substance to a person under the age of 

eighteen, each with a sexual motivation enhancement. Though he did not object 

at trial, he now argues that the prosecutor deprived him of his right to a fair trial by 

making statements during opening and closing argument that constituted 

misconduct. While we find some of the challenged statements prejudicial and 

likely to affect the jury’s verdict, Brennan fails to demonstrate that this prejudice 

could not have been cured by an instruction from the judge and, as such, his claim 

fails. Brennan also raises a number of issues in a pro se statement of additional 

grounds, each of which is analyzed separately below, but they are individually and 

collectively unsuccessful. We affirm.
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FACTS

Ronald Brennan was charged with one count of rape in the third degree,

one count of rape in the second degree, and two counts of distribution of a 

controlled substance to a person under the age of eighteen with a sexual 

motivation. The State alleged Brennan had sexual intercourse with a 16-year-old

male, A.H., against his will, and with R.F., a 17-year-old male, when he was 

incapable of consent by being physically or mentally incapacitated. The 

distribution charges were based on allegations that Brennan twice provided heroin 

to R.F. for the purpose of his own sexual gratification. Brennan entered not guilty 

pleas to all four of the charges and proceeded to a jury trial where both A.H. and 

R.F. testified.

The evidence at trial established Brennan was a methamphetamine user 

who lived in his car and gave people rides and did other odd jobs to support his 

drug use. R.F. was 17 years old when he first encountered Brennan and had been 

using heroin since he was nine. R.F. met Brennan when his mother arranged for 

Brennan to pick him up and drive him to his aunt’s house. During the car ride, 

Brennan and R.F. discussed Brennan’s cell phone background image which 

depicted two men engaged in a sexual act. R.F. briefly stayed at his aunt’s home, 

but eventually stole items from her home and boarded a bus. He intended to sell 

or trade the items for heroin and go live with Brennan in his car. While on the bus,

R.F. saw a friend who introduced him to A.H. The group talked and A.H. ultimately 

agreed to join R.F and stay with Brennan.
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Brennan testified he used methamphetamine, not heroin, and that during 

his time with R.F., R.F. used heroin and obtained it without Brennan’s assistance.

Brennan further testified that he and R.F. were in a romantic relationship, they lived 

together in the car, both did drugs, and had consensual sex on a regular basis. 

R.F.’s testimony was that he primarily used heroin and Brennan used 

methamphetamine, and the two regularly used drugs together. Contrary to 

Brennan’s testimony, R.F. asserted that he was using Brennan to obtain drugs and 

that, at times, Brennan gave him drugs directly. R.F. also described one instance 

when he awoke after using heroin to find Brennan having sex with him. R.F. 

indicated he pushed Brennan off, but never reported the incident to the police and 

continued living with Brennan. This was the basis for the rape in the second 

degree charge.

At trial, A.H. stated that Brennan and R.F. seemed to be in a relationship 

and then recounted an incident when the two had consensual sex in the back seat

of Brennan’s car while A.H. was in the front seat. He claimed that R.F. and 

Brennan invited A.H. to join them, but he declined. A.H. indicated he observed 

Brennan conduct drug transactions with various people and that Brennan paid 

cash, as opposed to doing odd jobs, for the drugs. A.H. testified he never saw 

R.F. buy drugs with cash.

The group later ended up at an abandoned house together with a fourth 

person, Douglas Sanders. A.H. testified that while at the house, Brennan anally 

penetrated him despite his protest. This was the basis for the rape in the third 

degree charge. A.H. also said Brennan told him to put R.F.’s testicles in his mouth 
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and although he didn’t want to, he did as requested. R.F. and Brennan offered a 

different version of these events. They stated that after R.F. injected heroin at the 

house, he told Brennan he wanted to perform oral sex on A.H. Brennan left the 

room to discuss the topic with A.H. and after they returned, R.F. performed oral 

sex on Brennan and A.H. They claimed A.H. became embarrassed after the sex 

act with R.F. and left the room to contact his girlfriend on the phone.

Sanders testified that he was present in the house, that Brennan showed 

up with methamphetamine and opiates, and that the group used the drugs 

together. Sanders indicated he was “pretty high” and “fairly out of it.” He recalled 

focusing on his drawing. He saw Brennan and the other two leave the room but

did not witness any sexual acts.

R.F. admitted on the stand that he made false statements to law 

enforcement during the investigation of the case. R.F. initially told them that 

Brennan had repeatedly raped him and that their sex was never consensual, but 

he later admitted that was not true. R.F. stated his motive for lying was his fear 

that he was under investigation for raping A.H. and his desire to have law 

enforcement to focus on Brennan.

During opening statements, the prosecutor laid out the State’s theory of the 

case and stated:

Ronald Brennan is a sexual predator who preys on vulnerable 

teenage boys who are drug users, homeless, runaways, or otherwise 

just down on their luck and vulnerable. He supplies them with drugs, 

gets to know them, grooms them, and then has sex with them, 

whether they consent or not, or whether they’re able to consent or 

not.

In closing argument, the prosecutor returned to that theme:
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As I stated before to you in opening, Ronald Brennan is a sexual 

predator. He preys on vulnerable teenage boys who are homeless, 

drug users, runaways, or otherwise down on their luck. He supplies 

them with drugs, grooms them, gives them a place to stay, and then 

has sex with them, whether they consent or not, or whether they’re 

able to consent or not.

The prosecutor later continued and expanded on her narrative of events:

And we only heard, right, sort of this maybe one-month, one-month 

to two-month time period; right? I mean, Ronald Brennan said he’s 

been a drug user in this culture for 30 years. We only got this oneto-two-month sort of snapshot into his life, and that’s what you’re 

deciding things on here is that snapshot. But even that, right, I mean, 

consider that culture. Consider if he does want to have sex with 

younger boys, who is he going to choose; right? Who is he going to 

single out?

It’s not going to be your school valedictorian kid from a good 

home, stable environment, does good in school, has a supportive 

family. No. It’s going to be these kids who are on the street, right, 

homeless, vulnerable. They need drugs. He has drugs. That’s how 

he gets them to him. Gives them drugs, and that keeps them with 

him; right? They need the drugs. He wants the sex from them. It 

works out for him.

In rebuttal closing, the State reiterated its argument yet again that Brennan was 

preying on particularly vulnerable youth:

Like I said, if they were good kids from strong families with support, 

weren’t sort of either drug users or runaways out on the street, 

needing a place to stay or needing drugs or needing both, they 

wouldn’t have ended up in the hands of Mr. Brennan; right? They 

wouldn’t have ended up there. Of course they’re troubled. These are 

the exact people that, if you are somebody who wants to have sex, 

engage in a sexual relationship with young boys, these are the exact

people that you would choose. Of course they’re troubled, you 

wouldn’t expect them not to be. Of course it makes sense that they’re 

troubled youth.

Brennan’s counsel did not object to any of these statements at trial.

The jury acquitted Brennan on both rape charges, found him guilty of both 

controlled substance delivery charges and further found by special verdict form 
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that he made both deliveries with sexual motivation. The trial court found that 

Brennan had an offender score of 21, which made his sentencing range 124+ to 

144 months in prison, with a mandatory term of 36 months of community custody.1

The sexual motivation enhancements carried an additional 24 months,

consecutive to the base sentence imposed. The trial court imposed an exceptional

sentence by ordering 105 months on each count, followed by the mandatory 

enhancement time, and running those sentences consecutively for a total of 258 

months in prison. Brennan timely appeals his conviction.

ANALYSIS

I. Opening and Closing Argument by the State

Brennan avers the State committed prosecutorial misconduct by making 

comments in opening and closing statements designed to inflame the jury and 

decide the verdict on improper bases, and that such conduct deprived him of his 

right to a fair trial.

In a prosecutorial misconduct claim, the burden is on the defendant to 

establish that the challenged conduct was improper and prejudicial in the context 

of the entire record. State v. Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d 43 

(2011). To demonstrate prejudice, Brennan must prove that there exists a 

substantial likelihood that the misconduct affected the jury’s verdict. Id. “Defense 

counsel’s failure to object to the misconduct at trial constitutes waiver on appeal 

unless the misconduct is ‘so flagrant and ill-intentioned that it evinces an enduring 

 

1 124+ refers to 124 months and one day as the low end of the sentencing range for this 

offense, based on an offender score of nine or higher, under the Sentencing Reform Act of 1981, 

Chapter 9.9A RCW.
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and resulting prejudice’ incurable by a jury instruction.” State v. Fisher, 165 Wn.2d 

727, 747, 202 P.3d 937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 841, 

147 P.3d 1201 (2006)). Here, Brennan did not object at trial, so we must determine 

whether each challenged statement was improper, and if so, whether it was 

prejudicial. If the statement was prejudicial, we must then decide whether it could 

have been cured by instruction to the jury.

A. Prejudicial Nature of the Conduct by the Prosecutor

“[A] prosecuting attorney represents the people and is presumptively to act 

with impartiality ‘in the interest only of justice.’” Id. at 746 (quoting State v. Reed, 

102 Wn.2d 140, 147, 684 P.2d 699 (1984) (internal quotations omitted)).

“Defendants are among the people the prosecutor represents. The prosecutor 

owes a duty to defendants to see that their rights to a constitutionally fair trial are 

not violated.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011). A 

prosecutor is required to “seek convictions based only on probative evidence and 

sound reason.” State v. Casteneda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74 

(1991).

“[A] prosecutor engages in misconduct when making an argument that 

appeals to jurors’ fear and repudiation of criminal groups or invokes racial, ethnic, 

or religious prejudice as a reason to convict.” State v. Perez-Mejia, 134 Wn. App. 

907, 916, 143 P.3d 838 (2006). “[I]nflammatory remarks, incitements to 

vengeance, exhortations to join a war against crime or drugs, or appeals to 

prejudice or patriotism are forbidden.” Id. “A prosecutor may not suggest that 

evidence not presented at trial provides additional grounds for finding a defendant 
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guilty.” State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994). “References to 

evidence outside of the record and bald appeals to passion and prejudice 

constitute misconduct.” Fisher, 165 Wn.2d at 747. “Allegedly improper arguments 

should be reviewed in the context of the total argument, the issues in the case, the 

evidence addressed in the argument and the instructions given.” Russell, 125 

Wn.2d at 85-86.

Here, Brennan focuses on multiple comments made by the prosecutor in 

opening and closing statements. The first is the State’s repeated reference to 

Brennan as a “sexual predator.” In the context of this label, the prosecutor went 

on to argue that Brennan “preys on vulnerable teenage boys who are drug users, 

homeless, runaways, or otherwise just down on their luck and vulnerable,” as 

opposed to a “school valedictorian kid from a good home, stable environment, 

[who] does good [sic] in school, has a supportive family.”

Brennan likens these comments to those where a prosecutor compared the 

accused to an animal, which have been deemed improper by this court and others. 

See State v. Rivers, 96 Wn. App. 672, 981 P.2d 16 (1999). However, in a recent 

unpublished opinion, this court clarified that the holding in Rivers does not suggest 

that, without more, a prosecutor referring to a defendant as a “predator” is per se 

misconduct.2 We adopt that interpretation of Rivers and do not find that the label 

of sexual predator was improper as it fit with the theory of the State’s case against 

Brennan as to the possible exploitation of A.H. and R.F. for Brennan’s sexual 

gratification, and was a reasonable inference based on some of the witness 

 

2 See State v. Leyva-Abitia, No. 76423-3-I, slip op. at 13-17 (Wash. Ct. App. Feb. 25, 2019) 

(unpublished), https://www.courts.wa.gov/opinions/pdf/764233.pdf
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testimony elicited at trial. The same is true as to the comment regarding vulnerable 

youth. There was testimony about A.H. and R.F.’s turbulent home lives, 

experiences with poverty and drug abuse, and involvement in the juvenile justice 

system. The prosecutor’s characterization of them as “down on their luck and 

vulnerable” is a reasonable inference based on the evidence in the record.

However, the prosecutor chose to go further and discuss who Brennan did 

not seek out, without any basis in evidence for such a claim that he made some 

sort of targeted choice of one type of individual to pursue sexually or socially over 

another. The responsibility of a prosecuting attorney is a heavy one as they are 

tasked with bringing the full weight of the State of Washington to bear on an 

individual and their liberty. See Reed, 102 Wn.2d at 146-47. While a prosecutor 

may, and should, vigorously argue their case, they are certainly constrained by the 

evidence presented and must balance what argument is necessary in the interests 

of justice with their obligation to ensure that convictions are secured only after a 

fair trial. See Monday, 171 Wn.2d at 676; See also Castaneda-Perez, 61 Wn. App. 

at 363.

The prosecutor argued that Brennan selected R.J and A.H. over other 

youth; “[w]ho is he going to single out? It’s not going to be your school valedictorian 

kid from a good home, stable environment, does good in school, has a supportive 

family.” There is no evidence in the record of a process by Brennan to single 

people out. The testimony clearly established how he came into contact with A.H. 

and R.J. through people they knew in common. There was no evidence presented 

that Brennan was even in contact with youth fitting the prosecutor’s description as 
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valedictorians from good homes with stable families, much less that he declined to 

interact with them in favor of the more vulnerable A.H. and R.J. This statement by 

the prosecutor leaps beyond a reasonable inference and appears designed to 

inflame jurors and therefore is improper.

Next Brennan identifies as misconduct the following statement by the 

prosecutor: “I mean, Ronald Brennan said he’s been a drug user in this culture for 

30 years. We only get this one-to-two-month sort of snapshot into his life, and 

that’s what you’re deciding things on here is that snapshot. But even that, right, I 

mean, consider that culture.” This statement is out of line with a prosecutor’s duty 

to “seek convictions based only on probative evidence and sound reason.” 

Casteneda-Perez, 61 Wn. App. at 363. The prosecutor is directly suggesting the 

jury should speculate about Brennan’s life outside of the charging period for the 

case and to further contemplate “that culture” at large as a part of their deliberation

process. The prosecutor offered a cursory acknowledgment that the jury is to only 

decide things on this “snapshot” of the timeframe established by the actual charges 

brought in the case, but argued well beyond such. There was no legal justification 

for such a statement. Further, it is impermissible to seek to convict someone based 

on their association with a culture, especially one as ill-defined as here. See State 

v. Ramos, 164 Wn. App. 327, 335-42, 263 P.3d 1268 (2011). We find the comment 

an improper attempt to both persuade the jury to inappropriately consider their own 

speculation as to events and experiences outside of the evidence presented at trial 

and to secure a conviction based on Brennan’s association with a particular 
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culture, rather than proof beyond a reasonable doubt of the crimes charged by the 

State.

B. Whether the Prejudice was Able to be Cured with an Instruction

To prevail on his prosecutorial misconduct challenges, without having 

preserved them through objection at trial, Brennan must also establish prejudice 

from the improper comments by the State such that an instruction to the jury could 

not have cured it.

If 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. 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, 760-61, 278 P.3d 653 (2012) (quoting 

Thorgerson, 172 Wn.2d at 455) (internal citations omitted).

Brennan was acquitted of both rape charges and convicted of two counts of 

distribution of a controlled substance to a minor, each with a sexual motivation

enhancement. In the context of the trial as a whole, it appears that, had the 

collective inflammatory comments by the prosecutor been entirely successful with 

the jury, the comments would likely have led to a conviction on the rape charges. 

The statements centered on Brennan’s life within a particular culture associated 

with drugs, coupled with assertions that he preyed on vulnerable boys within that 

context in order to have sex with them. Due to the nature of the charges Brennan 

faced at trial, and particularly the nature of the sexual motivation enhancement 
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filed with those for which he was ultimately convicted, the misconduct identified 

here “‘had a substantial likelihood of affecting the jury verdict.’” Id.

The court in Emery went on to explain that “[r]eviewing courts should focus 

less on whether the prosecutor’s misconduct was flagrant or ill[-]intentioned and 

more on whether the resulting prejudice could have been cured.” Id. at 762. Here, 

the court did provide the standard jury instructions prior to closing argument. This 

included an instruction based on Washington Pattern Instruction 1.02, which 

includes general admonitions to decide the case on the evidence, that arguments 

of counsel are not evidence and not to let emotions overcome a rational thought 

process. This direction from the bench prior to closing argument is procedurally 

distinct from a curative instruction given by a judge directly in response to an 

improper statement and often shortly after it has occurred. When analyzing the 

impact of a curative instruction, we presume the jury will follow the court’s 

instructions. State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001). Had a jury 

been expressly instructed to disregard the State’s invitation to “consider that 

culture,” or speculate about a selection process by Brennan between “a school 

valedictorian kid from a good home” and “vulnerable teenage boys who are drug 

users, homeless, runaways, or otherwise just down on their luck,” and directed 

them to restrain their deliberation to the evidence presented, we presume that they 

would have.

Brennan’s argument on this issue rests on cases that are distinguishable. 

He primarily relies on this court’s opinion in State v. Powell which, after reversing 

and dismissing on other grounds, determined that the improper comments by the 
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State in their rebuttal closing denied Powell a fair trial. 62 Wn. App. 914, 816 P.2d 

86 (1991). There, the court determined that the State admonished the jurors “that 

a not guilty verdict would send a message that children who reported sexual abuse 

would not be believed, thereby ‘declaring open season on children.’” Id. at 918. 

Here, the State’s argument strayed outside of the acts it charged against Brennan 

and ultimately presented to the jury, by inviting speculation about Brennan’s 

selection of a certain class of youth over another and to “consider that culture” in 

their deliberation of the charges, but unlike the prosecutor in Powell, did not go so 

far as to suggest the jury send a message or protect an entire class of victims with 

its verdict.

Brennan’s reliance on State v. Belgarde is similarly misplaced. 110 Wn.2d 

504, 755 P.2d 174 (1988). The prosecutor in Belgarde emphasized the 

defendant’s membership in the American Indian Movement (AIM), described it as 

“a group of butchers and madmen who killed indiscriminately,” and said “’the 

people are frightened of AIM,’ and that AIM is ‘something to be frightened of when 

you are an Indian and you live on the reservation.’” Id. at 508. The prosecutor 

further stated “I remember Wounded Knee, South Dakota. Do any of you? It is 

one of the most chilling events of the last decade. You might talk that over once 

you get in there.” Id. at 507. The Supreme Court explained that these comments 

were prejudicial because they were intended to instill fear and to direct the jury to 

consider information that was improper, but also because the prosecutor’s 

statements amounted to testimony that denied Belgarde “his right to confront and 

cross examine ‘witnesses.’” Id. at 509. The challenged statements in Belgarde, a 
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mix of racially-charged generalizations about an entire social movement and 

express suggestion from an attorney representing the State to consider politically 

controversial events for which Belgarde was not on trial, went well beyond the 

improper statements by the prosecutor here.

While prejudicial and carrying a substantial likelihood of affecting the 

verdict, we are unpersuaded that the prosecutor’s comments here were such that 

they could not have been cured by an instruction to disregard them and only 

consider the elements of the charges, evidence presented and the law of the case 

as provided by the judge. Brennan fails to overcome the presumption that a jury 

follows instructions from the court or demonstrate that the improper conduct by the 

State was so egregious that it could not be cured by instruction, as in Powell or 

Belgarde.

II. Statement of Additional Grounds

A defendant may provide a pro se statement of additional grounds (SAG) 

for review. RAP 10.10. However, there are practical limitations to our review of a 

SAG. For example, “we consider only issues in a [SAG] that adequately inform us 

of the nature and occurrence[s] of the alleged errors.” State v. Calvin, 176 Wn. 

App. 1, 26, 316 P.3d 496 (2013), (reversed on other grounds by State v. Calvin, 

183 Wn.2d 1013, 353 P.3d 640 (2015)). “Although reference to the record and 

citation to authorities are not necessary or required, the appellate court will not 

consider an appellant’s SAG if it does not inform the court of the nature and 

occurrence of alleged errors.” State v. Gauthier, 189 Wn. App. 30, 43-44, 354 P.3d 

900 (2015). “[I]ssues that involve facts or evidence not in the record are properly 
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raised through a personal restraint petition, not a statement of additional grounds.” 

Calvin, 176 Wn. App. at 26. However, issues addressed on direct appeal may not 

be renewed in a personal restraint petition, unless certain specific requirements 

are met. See RAP 16.4(d); In re Pers. Restraint Pet. of Haverty, 101 Wn.2d 498, 

501-04, 681 P.2d 835 (1984).

A. Selective Investigation and Prosecution

Brennan first argues in his SAG that he was a subject of selective 

investigation and prosecution. A criminal prosecution is presumed to be 

undertaken in good faith and a prosecutor is provided broad discretion in the 

decision to select which offenses to pursue. State v. Terrovonia, 64 Wn. App. 417, 

421, 824 P.2d 537 (1992). To succeed in an unconstitutional selective prosecution 

claim the defendant must show 1) disparate treatment (i.e. failure to prosecute 

those similarly situated), and 2) improper motivation for the prosecution. Id. at 422. 

Improper motivation means a deliberate selection based on “‘an unjustifiable 

standard such as race, religion, or other arbitrary classification.’” State v. Judge, 

100 Wn.2d 706, 713, 675 P.2d 219 (1984) (quoting Oyler v. Boles, 368 U.S. 448, 

456, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1962)).

Brennan fails to overcome the presumption that this criminal prosecution 

was taken in good faith. He argues the prosecution failed to similarly prosecute 

R.F. However, his argument fundamentally acknowledges that the prosecution 

initiated an investigation into R.F’s conduct in addition to his own. This led to the 

State’s exercise of discretion in light of the evidence and ultimate decision not to 

pursue rape charges against R.F. Further, Brennan does not engage with the 
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second portion of the test: establishing improper motivation for the prosecution. 

Though Brennan focuses on his designation as a registered sex offender, under 

Washington law this has not been recognized as an arbitrary classification. As 

such, Brennan is unsuccessful on this claim.3

B. Discovery Violations by the State

Brennan next argues that discovery was withheld in his case, specifically a 

Cellebrite report of A.H.’s cellphone, and that when it was received, it was redacted 

to remove images that the police believed to constitute child pornography. 

Brennan acknowledges receipt of the report, which he states resulted in a 

continuance because of the late disclosure by the State.

CrR 4.7 sets out the State’s responsibilities as to discovery in a criminal 

case. State v. Blackwell, 120 Wn.2d 822, 826, 845 P.2d 1017 (1993). In general, 

the government must disclose “evidence that is material and favorable to the 

defendant.” Id. “If the State fails to disclose such evidence or comply with a 

discovery order, a defendant’s constitutional right to a fair trial may be violated; as 

a remedy, a trial court can grant a continuance, dismiss the action, or enter another 

appropriate order.” State v. Barry, 184 Wn. App. 790, 796, 339 P.3d 200 (2014). 

“A trial court exercises discretion when deciding how to deal with a discovery 

violation.” Id. When raising a claim of prosecutorial mismanagement, “a defendant 

must prove that it is more probably true than not true, that (1) the prosecution failed 

 

3 Brennan adds what appears to be a subsection within his argument on selective 

prosecution. The subsection seems to attempt to address motions in limine and includes a number 

of citations to the clerk’s papers, however he offers no clear assignment of error or argument to 

assist this panel in identifying any matter for review.
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to act with due diligence, and (2) material facts were withheld from the defendant 

until shortly before a crucial stage in the litigation process which essentially 

compelled the defendant to choose between two distinct rights.” State v. Woods, 

143 Wn.2d 561, 583, 23 P.3d 1046 (2001).

Brennan concedes that the delay in disclosure was remedied by a 

continuance, which is well within the discretion of the trial court. In fact, the report 

of proceedings from that hearing makes clear that Brennan expressly agreed to

the continuance. He does not provide any argument as to how that continuance 

compelled him to “choose between two distinct rights,” in part because he fails to 

explain how the evidence in the Cellebrite report was material to his case. Again, 

Brennan does not engage with the legal test for this issue. Finding no abuse of 

discretion, we will not disturb the trial court’s ruling on the remedy as to the late 

disclosure.

Brennan also points out that when the Cellebrite report was ultimately 

received, certain photographs were redacted as investigating officers deemed 

them to be child pornography. Such withholding is not a discovery violation if 

counsel may still meaningfully access the material. See State v. Boyd, 160 Wn.2d 

424, 158 P.3d 54 (2007). Brennan makes no effort to demonstrate the probative 

value of the purported images of child pornography or relevance to the charges he 

faced at trial. Neither does he argue that his counsel was denied an opportunity 

to view the images as an alternative to receiving copies of them with the Cellebrite 

report. In State v. Boyd, our Supreme Court clearly held that certain reasonable 

restrictions on dissemination of evidence that may also constitute child 
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pornography does not conflict with the State’s discovery obligations under CrR 4.7. 

Id. We find no error here.

C. Evidentiary Ruling

Brennan next raises an argument regarding his purported disclosures to a 

detective, the redaction of those statements from the interview transcript, and 

ultimately, their exclusion from trial. While he provides citations to the record, 

those portions of the record do not contain the information he describes in this part 

of the SAG. Absent information to review and, more importantly, any indication of 

the prejudice such conduct would have had on Brennan even if the record citations 

supported his allegations, we decline to review this matter.

D. Instructional Error

Brennan renews his argument as presented in the trial court that it was 

improper for the court to sua sponte provide instruction for accomplice liability as 

to both counts of distribution of a controlled substance to a person under the age 

of 18. As an initial matter, “[w]e review the court’s choice of jury instructions for 

abuse of discretion.” State v. Butler, 165 Wn. App. 820, 835, 269 P.3d 315 (2012).

Jury instructions are generally sufficient when supported by substantial evidence, 

correctly state the law, and allow the parties an opportunity to satisfactorily argue 

their theories of the case. State v. Clausing, 147 Wn.2d 620, 626, 56 P.3d 550 

(2002).

Neither party sought inclusion of the accomplice liability instruction in this 

case, but the court advised counsel of an intention to so instruct at the close of 
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testimony, took argument and allowed for briefing on the court’s proposed 

instruction. The trial court may exercise its discretion to instruct the jury sua sponte 

based on the evidence adduced at trial, provided that such instruction is otherwise 

proper under case law. Butler, 165 Wn. App. at 835-836; See also State v. Malone, 

20 Wn. App 712, 582 P.2d 883 (1978). Here, defense counsel filed a written 

objection later that day and further argument was taken up the next morning.

The transcript is clear that the court’s basis for giving the instruction was 

that Brennan testified he helped third parties, individuals he gave rides to, who 

then on occasion provided a controlled substance to R.F. in exchange for the ride 

from Brennan. The reasonable inference from the testimony was that Brennan 

ultimately benefitted by facilitating another’s delivery of drugs to R.F. Instructions 

referencing accomplice liability were directly supported by Brennan’s testimony 

and properly stated the law. Further, despite defense claims to the contrary in its 

objection to the instructions, it appears from the record that Brennan was able to 

argue his theory of the case; that R.F. procured his own drugs. The written defense 

objection may have misunderstood the court’s reasoning for giving the instruction 

as it focused on R.F. as the principal, rather than other third parties who were 

receiving rides from Brennan. The court did not err by instructing the jury as to 

accomplice liability.

E. Denial of Defense Motion to Vacate

Without argument as to specific error, Brennan appears to seek review of 

the judge’s denial of the defense motion to vacate and arrest judgment by simply 

referring this court to the motion and portion of sentencing hearing in the record. 
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Defense counsel filed a written motion after trial and the State objected based on 

timeliness. However, the judge took up the motion on the merits and heard 

argument from the parties before proceeding to sentencing.

“The test for determining the sufficiency of the evidence is whether, after 

viewing the evidence in the light most favorable to the State, any rational trier of 

fact could have found guilt beyond a reasonable doubt.” State v. Salinas, 119 

Wn.2d 192, 201, 829 P.2d 1068 (1992). “A claim of insufficiency admits the truth 

of the State’s evidence and all inferences that reasonably can be drawn therefrom.” 

Id. We defer to the trier of fact, who makes credibility determinations and generally 

weighs the evidence. State v. Martinez, 123 Wn. App. 841, 845, 99 P.3d 418 

(2004).

Brennan fails to articulate any error committed by the trial court in ruling on 

his motion for arrest from judgment. When construed in the light most favorable 

to the State, the evidence at trial, set out at length in the facts section of this 

opinion, was sufficient to convict and supported the special verdict. The record 

demonstrated that the court engaged in the proper legal analysis when considering 

the defense motion and we find no error.

F. Post-Conviction No Contact Order

Brennan next alleges error relating to the issuance of a lifetime no contact 

order which prohibits him from contacting R.F. He states that the judge ordered a 

20 year no contact order, but that the State “issued” a lifetime order. Again, the 

citations to the record provided in this section of the SAG do not correlate to the 

documents Brennan references. However, the judgment and sentence appears to 
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offer some critical facts that resolve this challenge. Section 4.2 of the judgment 

and sentence is titled “COMMUNITY CUSTODY” and expressly notes no contact 

with R.F. as a condition of community custody supervision upon Brennan’s release 

from prison; it also cross-references section 4.5.

Section 4.5 of the judgment and sentence is titled “NO CONTACT” and the 

first checked subsection directs no contact with R.F. for a period of 240 months, 

which coincides with the sentence imposed on the case and the oral ruling of the 

court. The immediate next subsection indicates that a separate post-conviction 

order would also be entered. The record contains this separate post-conviction 

order, entered the date of Brennan’s sentencing hearing, which imposes a lifetime 

prohibition on contacting R.F. This is consistent with the prosecutor’s request for 

such an order during oral argument at sentencing. The sentencing judge issued 

the lifetime no contact order, not the prosecutor, and both the separate postconviction order and prohibition on contact as a condition of community custody 

are well within the sentencing authority of the trial court. Brennan fails to establish 

error.

G. Exceptional Sentence Beyond the Standard Sentencing Range

Brennan argues that the court improperly overruled his written objection to 

the imposition of an exceptional sentence above his standard sentencing range 

and erred by rejecting his request to impose an exceptional sentence below the 

standard range. While Brennan offers no specific argument as to this grounds for 

review and simply refers this court to the written objection in the record, because 
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exceptional sentences are strictly limited by statute we are able to deduce the likely 

challenge based on the limited options available under the law.

The trial court provided two independent bases for the imposition of an 

exceptional sentence upward. The first was the jury’s finding of sexual motivation 

by special verdict pursuant to RCW 9.94A.533(8), which is one of the enumerated 

statutory bases for an exceptional sentence under RCW 9.94A.535(3)(f). 

Additionally, the court determined that the separate statutory basis contained in 

RCW 9.94A.535(2)(c) was implicated by Brennan’s offender score, which would

have caused one of the crimes to result in essentially no independent punishment. 

The court properly entered written findings of fact and conclusions of law as to the

imposition of the exceptional sentence, as required by statute. The court properly 

exercised discretion at sentencing based on its consideration of the evidence at 

trial, findings of the jury and arguments of counsel. The trial court did not err in 

imposing an exceptional sentence above the standard range or rejecting 

Brennan’s argument for a downward deviation.

H. Charging Dates in the Amended Information

In a criminal case, the accused has a constitutional right to know the 

charges against them. U.S. CONST. amend VI; WASH. CONST. art. I, § 22. The 

information is constitutionally sufficient “only if all essential elements of a crime, 

statutory and non-statutory, are included in the document.” State v. Vangerpen, 

125 Wn.2d 782, 787, 88 P.2d 1177 (1995). “[I]t is sufficient to charge in the 

language of a statute if the statute defines the offense with certainty.” State v. 

Kjorsvik, 117 Wn.2d 93, 99, 812 P.2d 86 (1991). “[D]efendants should not have to 
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search for the rules or regulations they are accused of violating.” Id. at 101. If “a 

charging document is challenged for the first time on appeal, we construe it 

liberally.” State v. Pry, 194 Wn.2d 745, 752, 452 P.3d 536 (2019). “[A]mendment 

of the date is a matter of form rather than substance, and should be allowed absent 

an alibi defense or a showing of other substantial prejudice to the defendant.” 

State v. Debolt, 61 Wn. App. 58, 62, 808 P.2d 794 (1991).

Brennan argues that the amended information provided on October 22, 

2018 was deficient exclusively based on the dates provided as to some of the 

charged crimes; that the date range on the charging document incorporates a 

period of time prior to the date he alleges he first met R.F. We are not persuaded. 

The to-convict instructions as to both counts of distribution of a controlled 

substance to a person under the age of 18 for which Brennan was convicted stated 

“[t]hat on or about March 1, 2017, through on or about July 25, 2017” which 

matches the date range utilized in the charging document for each count. Further, 

review of the trial testimony demonstrates that the witnesses asserted that the acts 

occurred within the charged date ranges for the corresponding crimes. The 

amended information sufficiently informed Brennan of all essential elements of the 

crimes charged. The jury found that the testimony proved that the charged acts 

occurred within the time range set out by the State. That the date range may have 

been broader than Brennan believed appropriate is inconsequential, as the jury 

was persuaded beyond a reasonable doubt that counts 3 and 4 occurred within 

the charging period provided by the State. As such, we find no error.
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I. Juror Knowledge of Shackling or Custodial Status

Brennan claims a potential juror disclosed his custodial status to the other 

members of the venire. The record does not support this assertion. Brennan 

clearly states that a potential juror “allowed the Jury [sic] to know of my custody 

status.” However, the transcript of voir dire includes the following exchange 

between Juror 70 and the court during individual examination after Juror 70 

indicated that he knew the transport deputies in the courtroom and speculated that 

they may have been there to transport Brennan:

THE COURT: . . . Juror Number 70, I guess I have one follow-up 

question for you: Have you mentioned to any of the other jurors that 

you happen to know Officer Wold or the other officer?

PROSPECTIVE JUROR: I have not.

THE COURT: Okay. I would direct that you continue to not mention 

that to anyone. And, again, as I have indicated, do not have any 

discussion about the case whatsoever at this point.

PROSPECTIVE JUROR: Yep.

Juror 70 was dismissed, without objection by the State, out of an abundance of 

caution immediately after his individual examination by the parties. Jurors are 

presumed to follow the court’s instructions. Stein, 144 Wn.2d at 247. Brennan 

fails to provide any argument, other than his plain assertion to the contrary of the 

statements in the record. This is insufficient to overcome the presumption that 

Juror 70 followed the court’s instruction. As such, we find no error.

All other citations to the record provided by Brennan on this issue either 

highlight the court’s discussion of transport logistics to avoid jurors observing him 

being transported by deputies or, as appears to be Brennan’s focus, the custodial
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status of witness Douglas Sanders. Brennan’s citations to the record regarding 

Sanders emphasize an incident where a juror made a comment while they were 

being escorted to the jury room. The statement was conveyed to the judge by the 

clerk and the judge brought the matter to counsel on the record. The juror’s 

comment was paraphrased as explaining that the reason the jury was going back 

to the jury room was because transport deputies would be handcuffing Sanders to 

take him out of the courtroom. Sanders was a witness on behalf of the State who 

had been brought in on a material witness warrant and Brennan fails to 

demonstrate how Sanders’ custodial status, or the jurors’ knowledge of such, 

prejudiced him.

J. Admission of Jail Phone Calls at Trial

In a related ground for review, Brennan challenges the trial court’s 

admission of jail phone calls at trial on the basis that it allowed the jury to know his 

custodial status prior to trial. Brennan provides no specific argument as to why the 

admissions were improper beyond that it allowed the jury to know he had been in 

custody. Jail phone calls are routinely, and properly, admitted into evidence in 

criminal trials. See State v. Archie, 148 Wn. App. 198, 199 P.3d 1005 (2009). 

Without further argument as to the prejudice or error resulting from the admission 

of this evidence, we are unable to review this issue.

K. Exclusion of Evidence of Possible Criminal Conduct by Victim

Brennan next argues that he was not allowed to present evidence as to 

R.F.’s possible criminal liability. He indicates that he would have introduced 
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evidence of criminal conduct as impeachment evidence as to one of the named 

victims. The “scope of such cross examination [remains] within the discretion of 

the trial court.” Russell, 125 Wn.2d at 92 (alterations in original). The record 

demonstrates that the court engaged in the proper legal analysis by weighing the 

victim’s rights and privileges against Brennan’s as the defendant in the instant 

case.

The lynchpin of this issue rests with R.F.’s Fifth Amendment privilege, which 

was clearly implicated. R.F. had a pending felony case for the alleged theft of a 

firearm at the time of his testimony in Brennan’s trial. The Fifth Amendment, made 

applicable to the states via the Fourteenth Amendment, provides, “no person . . . 

‘shall be compelled in any criminal case to be a witness against himself.’” Malloy 

v. Hogan, 378 U.S. 1, 7, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964) (internal 

quotations omitted). “The availability of the Fifth Amendment privilege does not 

turn upon the type of proceeding in which its protection is invoked, but upon the 

nature of the statement or admission and the exposure which it invites.” State v. 

Post, 118 Wn.2d 596, 604, 826 P.2d 172 (1992).

The record demonstrates that the trial court acted within its discretion to 

admit and exclude evidence relating to this alleged conduct by R.F. The court 

allowed the broad fact of pending charges into evidence, but would not allow 

further examination to that for which R.F. had a Fifth Amendment privilege. R.F.’s 

counsel on that pending criminal matter was also present for this portion of the 

proceedings and addressed the court in regard to R.F.’s potential need for 
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invocation of privilege. There was no abuse of discretion as to the trial court’s 

exclusion of this particular evidence.

L. Ineffective Assistance of Counsel

Brennan’s final SAG argument avers that his counsel was ineffective for 

failing to call three specific witnesses at trial who had been interviewed by the 

defense. “To prevail on a claim of ineffective assistance of counsel, [a defendant] 

must establish both deficient performance and prejudice.” State v. Jones, 183 

Wn.2d 327, 330, 352 P.3d 776 (2015) (alterations in original). Brennan has the 

burden to establish that his counsel’s representation fell below an “objective 

standard of reasonableness” and that “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Strickland v. Wash., 466 U.S. 668, 688, 694, 80 L. Ed. 2d. 674 (1984). 

“Courts engage in a strong presumption counsel’s representation was effective.” 

State v. McFarland, 127 Wn.2d. 322, 335, 899 P.2d 1251 (1995). We look to the 

entire record in review of counsels’ performance. State v. Ciskie, 110 Wn.2d 263, 

284, 751 P.2d 1165 (1988); Jones, 183 Wn.2d at 331.

Brennan’s claim fails on its face, as the choice as to which witnesses to call 

at trial is well-established as a tactical decision squarely within counsel’s 

discretion. See In re Pers. Restraint of Stenson, 142 Wn.2d 710, 741, 16 P.3d 1 

(2001) (“[T]he decision to call witness rests with counsel, not with the defendant.”). 

Brennan acknowledges that his attorney interviewed the witnesses, which could 

have provided numerous bases for counsel’s decision not to introduce testimony 

from any of those individuals. Pretrial interviews with potential witnesses can 
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reveal all manner of potentially damaging information; an attorney may be privy to 

criminal histories that could be utilized for impeachment of that witness, the witness 

may provide an account that contradicts prior statements or, worse, exposes the 

defendant to further criminal liability. Any of these scenarios necessarily place 

counsel in the position of having to weigh the potential value of the testimony 

against the possibility of impeachment or other damage to their client or their case. 

This is the practical underpinning for the body of case law holding that selecting 

which witnesses to call at trial is a proper tactical decision by counsel. As such, 

Brennan fails to demonstrate deficient performance by counsel and we do not find 

that he was ineffective.

Affirmed.

WE CONCUR: