IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v.
JAMES BRANT, JR., Appellant. No. 73955-7-1 ^ 

### DIVISION ONE £ 

## UNPUBLISHED OPINION ^

FILED: January 23. 2017 

### Spearman, J. - Prior to James Brant's trial forassault, burglary, and 

### interfering with domestic violence reporting, the trial courtadmitted evidence of prior incidents between Brant and his estranged wife, Deanna Brant. A jury convicted him offourth degree assault andresidential burglary. Brant appeals, 

### arguing thatthecourt abused its discretion in admitting theprior incident evidence. He also contends the prosecutor denied him a fair trial bydisparaging defense counsel during closing argument. We affirm. FACTS 

### Based onallegations thatBrantentered Deanna's residence without 

## permission, assaulted her, and prevented herfrom using herphones, the State charged him with residential burglary, fourth degree assault, and interfering with domestic violence reporting.No. 73955-7-1/2 

### Prior to trial, the court heard argument on the admissibility of incidents occurring in the months preceding the charged incident. The court admitted most ofthe prior incident evidence, stating: Some of itseems to me is res gestae and ought to be able to come in.
... Iwill allow on direct, though, testimony from Ms. Brant on 

### incidents . . . starting in September2014 when she asked Mr. Brant 

### [for a divorce]. And Ithink everything that goes from there forward is res gestae, and Ido think that the incident, certainly the March 27 incident Ithink is notonly res gestae, it's Ithink very relevant to the issue of fear. And Ithink the fact that she called 911 on February 24 

### goes to the issue offear. And as far as that goes, counsel, it seems to me that the state needs to be in a position that they can introduce 

### evidence of either a physical touching or the fear ofimminent harm, 

### unwantedtouching. An assault is either and Idon'tthink it'sfair to the state to limit the state to having to convince the jury beyond a reasonable doubt that there was an actual touching
.... Ithinkfear 

### is a major factor in one of the elements inassault under the circumstances ofthis case. 

### So I'm going to allow everything that's been mentioned that the state ... suggested they want to offer. I'll allow iton direct as 

### long as it's from September 14forward, and specifically to include the February 24 incident where 911 was called and the March 27 incident, the so-called gun display incident,... or both as to 

### fear on thepartof theallegedvictim here and as to resgestae.1 The court excluded an incidentinvolving an axe in 2007, ruling that itwas too remote in time. It also excluded evidence that Deanna took a pistol from Brant's truck in 2014 because itwas more prejudicial than probative. 

### Attrial, theevidence established thatin September2014, Deannatold Brant she wanted a divorce. Brantwas upset and told her "[h]e thought he could 

### fix it [.]" Verbatim Report ofProceedings (VRP) at 188. In January 2015, Brant moved into a shop building thecouple owned. Deanna remained in thefamily residencewith theirtwo sons, ages 14and 20. She testified that once Brant

1VRP(7/27/15) at 21-22. (Emphasis added). -2-No. 73955-7-1/3 moved to the shop, he was no longer permitted to enter the family residence without her permission. 

### InFebruary 2015, Brant and Deanna were discussing a matter at her residence when she asked him to leave. He refused, and Deanna said she would 

### call 911 if he did not leave. Bryantchallenged her to make the call, which she did. 

### Shortly thereafter, a deputy arrived and was "able to have the defendant leave [Deanna's] home." VRP (7/28/15) at 101. In late March 2015, Deanna obtained Brant's permission to enter his 

### residence and pick up a television accessory when he was not home. When she entered Brant's bedroom, she found a shotgun, shells, wedding photos, and a 

### notebearing her name and thewords "lastwill andtestament" on the bed. 

### Deanna grabbed thetelevision accessory and theitems on thebed, including the 

### gun, and left. Shetestified shetookthegun because she wasafraid Brantwas planning tohurt himself. She putthegun in herbedroom closet. 

### On April 22, 2015, Brantcalled Deanna athome and asked ifshe needed 

### anything from themarket. Shesaid no. Aboutfive minutes later, Deanna heard a knock at her door and saw Brant getting into histruck. When she opened the 

### door, shefound a gallon ofmilk on thedoorstep. Shethanked Brantfor themilk 

### and anargumentensued. Brantasked herwhy she had notfiled for divorce. She responded thatneither ofthem could afford anattorney and"we can't seem to have a civil conversation
... so Iguess that's whatIneed todo." VRP (7/28/15) at 111. As she walked back into the house, Brant got out of his truck and asked to 

### use thebathroom. Shetold him to pee outside, but he pushed the dooropen andNo. 73955-7-1/4 walked into the house, past the bathroom, and into Deanna's bedroom. He retrieved his shotgun from her closet and told her he wanted his pistol. Deanna told him to leave. As Brant walked past her, he took a sticky note offthe shotgun and tried to put it on Deanna's chest. The note said, "[l]fyou take this Iwill report itstolen. You don't need it. Stay the fuck out of my house." VRP (7/28/15) at 115. Brant proceeded to put the shotgun in his truck. Brant continued to yell and demand his pistol. As Deanna tried to shut the front door, Brant returned, forced the door open, and pushed her up against the 

### refrigerator. Deanna testified that he pushed against her shoulder and chest with both hands and was "flight in her face." Id at 116-17. Brant was "completely 

### enraged and screaming" that he wanted the pistol. Deanna testified she "felt terrified" and "afraid for what he was going to do." \_± at 117. When Brant released her, Deanna went to the kitchen to get a phone. 

### Brant grabbed a coffee cup and smashed itin the sink, screaming that he wanted his pistol. Deanna picked up the phone, but Brant grabbed itfrom her and threwit into the laundry room where it broke. When Deanna tried to use a phone in the 

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

### dining room. He then shook waterfrom an open waterbottle onto her and said, "how do you like that, you stupidcunt." jd. at 120. He then crumpled the bottle and threw itat her. She again told him to leave. 

### Deanna saw her cell phone, but Brant grabbed itfirst and began walking 

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

-4-No. 73955-7-1/5 the car's horn to start honking. She followed Brant outside and asked him to give back her phone. He threw the phone into the woods. When she tried to retrieve it, Brant ran past her and grabbed it. She asked him again for the phone, and he told her to give him his pistol. Brant subsequently left and Deanna called 911 from the phone in her bedroom. The court played the 911 recording for thejury. During the call, Deanna told the 911 operator that Brant "broke both my other phones and took my cell 

### phone and took a weapon that was here and pushed me . . .." jd. at 137. When asked ifshe was hurt, she said "[h]epushed me and threw stuff at me." jd. Deanna said Brant wanted his handgun but she "wouldn't give itback to him because he's been suicidal and I'mobviously scared of him."jd. at 139. When the 

### operator asked about any damage, Deanna said: He broke—he threw some stuffand broke probably the two 

### cordless phones Ihave because he didn't want me to call—I picked 

### up the phone to call 9-1-1 and he grabbed itfrom me and threwit and picked up the other one and, urn, pushed me down. And he pushed his way into the house
.... Id, at 140. 

### Deputy Robert Nou ofthe San Juan County Sheriff's Office testified that he 

### responded to Deanna's911 calls in February andApril 2015. When he arrived at Deanna's residence after the February call, Brant toldthe deputy that he 

### remained on Deanna's premises after her911 call because he knewDeputy Nou "would need to talk to him [.]" jd at 173.No. 73955-7-1/6 When Deputy Nou arrived at Deanna's after her April 911 call, she was pale, withdrawn and upset. He took photos ofbroken cups, phones, a crumpled water bottle, and water in the living room area. Deanna's treating physician, Dr. Robert Wilson, testified that he saw her shortly after the April incident. She was tearful and complained ofelbow and wrist pain, which Dr. Wilson diagnosed as a bruise and a sprain. She said the injuries
were the result of her husband's "physical abuse." jd. at 166. After escorting Deanna to Dr. Wilson's clinic, Deputy Nou and another deputy called Brant and asked ifhe would come to the sheriff's substation. He declined, so the deputies drove to Brant's residence. Brant told the deputies he wanted his gun back and retrieved it from Deanna's residence. He admitted seeing the post-it note on the gun. He took the gun to his truck and then went back inthe house. He said Deanna "was getting kind ofupset and aggressive." When "she came at him," he "grabbed her and held her against the refrigerator to 

### try and restrain her and get her to calm down." VRP (7/28/15) at 205. Brant claimed Deanna threw a phone at him, which he caught and then threw to the
floor. 

### According to Deputy Nou, Brant said he wanted Deanna to talk about issues between them so he smashed a coffee cup on the floor to get her attention. She then headed toward her living room, and Brant followed. She picked up 

### another phone, but Brant grabbed it, threw it, and broke it. Deanna moved toward the dining room for her cell phone, saying she needed to make a call. Brant got to 

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

-6No. 73955-7-1/7 both went after it. Deanna told Brant he had broken all the phones inthe house and she needed the cell phone to make a call. Brant said he paid the bills for the cell phone and she could use the cordless phone in the bedroom. Brant leftthe

scene with Deanna's cell phone. Brant testified and admitted he contemplated committing suicide with his shotgun. He testified, however, that he and Deanna had agreed not to enter each other's residences when the other was not home. He denied giving Deanna permission to enter his residence in March 2015. He admitted entering Deanna's 

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

### including the shotgun, jd at 238. He retrieved the shotgun and "flicked the [post-it] note at her" as he left the house. ]d at 239-40. Brant testified that after putting the shotgun inthe truck, he asked Deanna 

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

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

### phone down so his hands would be free. He grabbed her by the arms and held her against the refrigeratortotry to calm herdown. When he released her, he broke a coffee mug because he was angry. 

### Brant proceeded to the living room to get awayfrom Deanna. He reached 

### for a phone to call 911. Deanna reached for it at the same time and fell on the couch. She then came toward him, so Brant threw the phone to free his hands. 

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

### hercell phone on the kitchen counter, he grabbed itand took itoutside. Deanna 

### attempted to grab itfrom him. He then attempted tothrow it into histruck but

-7No. 73955-7-1/8 

### accidentally threw it over the truck. He retrieved it and said he would give it back to her ifshe gave him his pistol. Deanna said she did not have itand would not say who did. He told her she could use the bedroom phone ifshe needed to make a call. According to Brant, the only time she told him to leave was after he took the cell phone. On cross examination, Brant admitted Deanna did not invite him into her residence at any point on April 22, 2015. He maintained, however, that their agreement only precluded him from entering the residence when she was not there. Thejury found Brant guilty of residential burglary and assault, but not guilty of interfering with domestic violence reporting. He appeals. DECISION Brant first contends the trial court abused its discretion in admitting the prior incident under ER 404(b) without balancing the probative and prejudicial values ofthe evidence on the record. We conclude any error was harmless. Under ER 404(b), evidence of a defendant's other crimes, wrongs, or acts, is not admissible to show the defendant's character. It is, however, admissible for certain limited purposes, such as motive, opportunity, preparation, plan, knowledge, identity, or absence ofmistake or accident. In addition to these exceptions to the general rule, Washington courts have recognized a "'res gestae'
or 'same transaction' exception." State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995). That exception permits the admission ofevidence otherwise precluded by the rule "'ifit is so connected in time, place, circumstances, or

8No. 73955-7-1/9

means employed that proofof such other misconduct is necessary for a complete description ofthe crime charged, or constitutes proofofthe history ofthe crime charged.'" State v. Schaffer, 63 Wn.App. 761, 769, 822 P.2d 292 (1991) (quoting 5 Karl B. Tegland, Washington Practice: Evidence § 115, at 398 (3d ed.1989). Courts admit res gestae evidence so that "a complete picture [will] be depicted for the jury." State v. Tharp, 96 Wn.2d 591, 594, 637 P.2d 961 (1981). Before a court may admit evidence under an exception to ER 404(b), it must: (1) find by a preponderance ofthe evidence that the misconduct occurred; 

### (2) determine whetherthe evidence is relevant to a material issue; (3) state on the record the purpose for which the evidence is being introduced; and (4) balance 

### the probative value of the evidence againstthe danger of unfair prejudice. State v. Trickier, 106Wn. App. 727, 732, 25 P.3d 445 (2001) (citing State v. Brown, 132 Wn.2d 529, 571, 940 P.2d 546 (1997)). This analysis must be conducted on the record. State v. Slocum, 183 Wn. App. 438, 448, 333 P.3d 541 (2014). We review a trial court's decision to admit evidence for abuse of discretion. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999). 

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

### as part ofthe res gestae ofthe charged offenses and/or as events bearing on the fear element of assault. Brant contends the court "necessarily abused its 

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

### and prejudicial values of the incidents on the record. BriefofAppellant at 9. 

### Assuming without deciding that res gestae evidence is subject to the requirementsNo. 73955-7-1/10 

### of ER404(b),2 a failure to balance probative and prejudicial values on the record is harmless ifa reviewing court can determine from the record that compliance with the requirement would not have changed the trial court's decision to admit the evidence. State v. Carleton, 82 Wn. App. 680, 686, 919 P.2d 128 (1996). The record in this case indicates that on-the-record balancing would not have changed the trial court's decision to admit the evidence. The court readily excluded other incidents as either more prejudicial than probative or too remote in time. Thus, the court was fully aware ofthe balancing requirement for admitting the prior incident evidence. It is also clear from the record that the court concluded the prior incidents were admissible for multiple purposes and thus had substantial probative value. The record supports that conclusion. The prior incidents shed light on a disputed issue inthe burglary chargei.e., the nature ofthe parties' agreement regarding their authority to enter each 

### other's premises. The February incident was also probative ofanother disputed issue

- Brant's intent in throwing and destroying the phones during the charged incident. Deanna's 911 call during the February incident supported an inference 

### that Brant threw and destroyed the phones in the charged incident so that Deanna
could not call 911. The March incident also had additional probative value. The gun, wedding 

### photos, and the "lastwill and testament" note bearing Deanna's name strongly

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

10No. 73955-7-1/11 indicated that Brant knew Deanna was coming to his residence that day. The items thus tended to corroborate Deanna's disputed testimony that she requested 

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

### Brantwas highly emotional about the pendingdivorce and was considering drastic action. The incident was therefore relevant to Deanna's fear on the assault 

### charge.3 In addition, the March incident served the res gestae purpose of explaining why Deanna had the gun thatBrant entered her house toretrieve. In sum, any errorin failing to balance the probative and prejudicial values of the prior incidents on the record was harmless. Brant next contends he was denied a fair trial because the prosecutor committed misconduct during the following closing argument: 

### And Ithink one of the worst things about this type ofcase is when 

### you were all here and Iasked everybody does avictim have to bemeek, there was nobody who said, yes, but isn'tthatalways the argumentwhen 

### we gettothis point. Whatdid [defense] counsel sayabout Deanna Brant. She's not scareable. She sounded prettyscared to me on that tape and 

### you can listen to it. And it's offensive to consider, I'm sorry, that she was up herefaking being upset. You don't have tocower in a cornerto be the victim of a crime. She said, yes, she was yelling back at him when 

### he was in her house get out ofmy house. Yeah. He's the one that's not allowed to be there, he's the one who's doing these things to herin her home. 

## (Emphasis added.) VRP (7/29/15) at325-26. Brantcontends the emphasized remarks disparaged his counsel and constituted reversible misconduct. We disagree.



### 3The courtinstructed thejurythat anassault "is also an actdone with intentto create in 

### anotherapprehension and fear ofbodilyjury [sic] and which in fact creates in anothera 

### reasonable apprehension and imminentfear ofbodily injury even though the actdid notactually intendto inflictbodily injury." VRP(7/29/15) at 299. -11

-No. 73955-7-1/12 To establish prosecutorial misconduct, a defendant must show both improper conduct and prejudice. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 

### 432 (2003). Remarks that disparage defense counsel's role or integrity, as opposed to counsel's arguments, are misconduct. State v. Thorqerson, 172 Wn.2d 438, 451, 258 P.3d 43 (2011) (improper to disparage defense counsel's role or integrity);4 Brown, 132 Wn.2d at 566 (prosecutor's characterization of defense argument as "ludicrous" was not misconduct in light ofthe evidence); State v. Graham, 59 Wn. App. 418, 429, 798 P.2d 314 (1990) (not misconduct to argue that defense theory is not supported by the evidence). But otherwise improper remarks are not misconduct ifthey were invited or provoked by defense counsel's closing arguments and are a fair reply to those arguments. State v. Brown, 132 Wn.2d at 561. When, as here, a defendant fails to object to alleged misconduct, reversal is warranted only ifthe misconduct was so flagrant and illintentioned as to be incurable by a curative instruction. State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). Brant contends the prosecutor's remarks were misconduct because they "referred to defense counsel's argument as 'offensive.'" Br. ofAppellant at 14. But
as discussed above, it is generally not misconduct to comment negatively on 

### counsel's arguments. The remarks at issue here focused on counsel's argument and at worst only indirectly criticized defense counsel. The remarks were also

4See also State v. Reed. 102Wn.2d 140, 143, 684 P.2d 699 (1984) (improper to urgejury not to be swayed by defendant's "city lawyers"); State v. Warren. 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008)(improper to argue that all defense attorneys mischaracterize evidence and twist the facts); State v. Gonzales, 111 Wn. App. 276, 284, 45 P.3d 205 (2002) (improperto argue that, unlike defense lawyers, prosecutors take an oath " 'to see that justice is served'"); State v. Neqrete, 72 Wn. App. 62, 66-67, 863 P.2d 137 (1993) (improper to argue that defense counsel is being paid to twist the words of a witness). -12-No. 73955-7-1/13 

### provoked bydefense counsel's earlier remarks suggesting that Deanna was not "scareable" and that her crying "in the rightspots" during her testimony was 

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

### impropriety in the prosecutor's isolated remark, itwas not so flagrant and illintentioned as to be incurable.5 Because Brant's claims oferrorfail, his cumulative error argument fails as well. Affirmed. 

# •k f,U t^&~.

# ^

WE CONCUR: 

# 7T

5See e^, Warren. 165Wn.2d at29-30 (remarks disparaging defense attorneys in 

### general and calling defense argumenta"'classicexampleoftaking thesefacts andcompletely twisting them
... and hoping thatyou are notsmartenough to figure outwhatinfactthey are 

### doing'" were notsoflagrantand ill-intentioned as to be incurable); Neqrete, 72Wn. App. at66 (remarkthatdefensecounsel "'isbeing paidtotwistthewords ofthewitnesses'" was curable).

13