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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, 

Respondent,

v.

DELANE MICHAEL DUFLOTH,

Appellant.

 No. 81402-8-I

 DIVISION ONE

 OPINION PUBLISHED IN PART

COBURN, J. — Dufloth appeals his conviction for burglary in the second 

degree. He argues that the trial court erred by not ordering a competency 

evaluation when the court was aware that another court found him not competent 

and ordered restoration that had not taken place. Dufloth also contends that the 

prosecutor committed misconduct during closing argument. We agree and 

reverse and remand.

FACTS

On the evening of July 4, 2019, resident manager Jonathan Williams was 

notified that a security alarm was triggered at the Seattle Salvation Army 

warehouse. At the time of the alarm, the warehouse was closed. Williams and 

others entered the building to look for the intruder. Williams testified that the

warehouse had been disturbed with boxes overturned and inventory, including 

purses, thrown on the floor. Williams heard Dufloth locked inside an emergency 
No. 81402-8-I/2

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stairwell. 

Dufloth claimed, through the locked door, to be a Salvation Army 

employee who had fallen asleep in the warehouse. Williams told Dufloth he was 

calling police. Williams then heard a crash and opened the stairwell door to find 

that Dufloth had forcefully escaped through another door leading to an 

administrative office. Dufloth locked himself inside the office until after police 

arrived. When searching the stairwell, police recovered a bicycle, a jacket, and a 

purse, the only item with a Salvation Army price tag. A police dog, after obtaining 

Dufloth’s scent, alerted to the jacket. Nearby, police also discovered a black 

eyeglass case containing cash and glass “drug pipes.” Dufloth admitted the case 

belonged to him.

1 Police arrested Dufloth. He was later charged with burglary in 

the second degree. 

Though he was represented by counsel, Dufloth sent multiple letters to the 

court before his trial, including a pro se motion to dismiss.

2 In a handwritten 

letter filed a week before trial, Dufloth wrote, 

The Kitsap County Superior Court found me incompetent to 

proceed with Trial. I was given an evaluation by the Western State 

Hospital. [T]he Court accepted the opinion and ordered me to a 

restoration period to restore my competency. I believe that my 

constitutional right to a fair trial has been violated. Due to my 

current, worsening, mental health conditions . . . where I become 

delusional, having hallucinations. These hallucinations effect me to 

the point that I believe the voices in my head. These voices, Carol. 

 1 Dufloth initially denied the case belonged to him but claimed ownership

once the officer indicated that it also contained $40 in cash. 

2 In these pro se communications with the trial court, Dufloth objected to 

trial continuances, discussed the availability of his witnesses, and motioned to 

have his case dismissed on grounds that the State’s charging documents were 

insufficient. When asked about the motion to dismiss, Dufloth’s defense counsel 

told the court that he, as counsel, did not wish to proceed with the motion. 
No. 81402-8-I/3

3

Tells me things to confuse me to where I don’t understand or 

comprehend what[‘]s going on, and why all these rights of mine are 

violated.

I am currently experiencing a major manic episode and am in need 

of medication and help from Western State doctors and medication 

to bring me back to competency – normal.

Additionally, Dufloth wrote in the letter that he had “not been sent to WSH 

because of this burglary charge” and that his attorney was “not addressing the 

court with this issue.” 

During pretrial motions, the court asked defense counsel about Dufloth’s 

claim of incompetency:

THE COURT: In this letter, Mr. Dufloth is stating that he believes he is 

incompetent. . . . I take that to be basically a request for an evaluation 

pursuant to RCW 10.77.060 . . . I’ll ask counsel, both counsel, have you 

seen this, and is anybody going to pursue this? 

[DEFENSE COUNSEL]: [T]his issue has been a common theme during 

the course of my representation with Mr. Dufloth. I will tell the Court he 

was, I believe, ruled to be incompetent in Kitsap or Kittitas County. 

THE COURT: Kitsap. Yeah, there’s a reference to his having been found–

[DEFENSE COUNSEL] Right. . . . I will tell the Court, I am not raising

competency at this point. I have informed [the prosecutor] of that. 

THE COURT: What was your understanding of what the Kitsap County 

Court did? 

[DEFENSE COUNSEL]: They ordered him to Western State Hospital. I 

believe he was out of custody at that point. He was ordered to Western 

State Hospital for restoration. 

THE COURT: And did it happen? 

[DEFENSE COUNSEL]: And it did not happen. These charges came 

about and Mr. Dufloth found himself back in custody, and so here we are. 

I do not have competency concerns. I’m not raising those at this point. 

THE COURT: Okay. 
No. 81402-8-I/4

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[DEFENSE COUNSEL]: I’ve spoken to [Dufloth] multiple times, even as 

recently as well, and so I’m not raising competency. Of course, 

competency is a fluid statement, so if it changes, as an officer of the 

Court, I’ll bring that to the Court’s attention to address that. But at this 

point, I’m not raising – I’m not asking for a competency evaluation.

THE COURT: Okay. Well, in that case, since neither party has briefed 

these issues, and I have nothing in front of me that I can – I, frankly, have 

not seen an issue where a party has raised a motion, but his own lawyer 

declines to pursue it. And then, I guess, you’re saying that absolves the 

Court of having to rule on it, because the lawyers are not engaged on that 

issue. 

The prosecutor then commented that if Dufloth wanted to proceed with a pro se 

motion he could request to represent himself, because “if he wants [defense 

counsel] to represent him, he has to kind of live with that representation, his 

choices”. The court then replied, “Well, there’s no motion before the Court right 

now to discharge counsel and proceed without counsel on a pro se basis. So, 

let’s go to the next issue then.” Dufloth’s competency was not addressed again 

at trial. 

A jury convicted Dufloth of burglary in the second degree. Dufloth

appeals. 

DISCUSSION

Competency for Trial

We review a trial court’s decision on whether to order a competency 

examination for an abuse of discretion. State v. McCarthy, 193 Wn.2d 792, 803, 

446 P.3d 167 (2019). A trial court abuses its discretion when it reaches a 

conclusion on untenable or unreasonable grounds. State v. Heddrick, 166 

Wn.2d 898, 908, 215 P.3d 201 (2009).
No. 81402-8-I/5

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Dufloth argues that the trial court erred by not ordering a competency 

hearing pursuant to RCW 10.77.060. We agree. 

An accused person must be legally competent to stand trial. State v. 

Coley, 180 Wn.2d 543, 551, 326 P.3d 702 (2014); RCW 10.77.050. The 

fundamental right not to stand trial unless competent is guaranteed by the due 

process clause of the Fourteenth Amendment. See U.S. CONST. amend. XIV; 

State v. Ortiz-Abrego, 187 Wn.2d 394, 402-03, 387 P.3d 638 (2017). “Failure to 

observe procedures adequate to protect an accused's right not to be tried while 

incompetent to stand trial is a denial of due process.” In re Fleming, 142 Wn.2d 

853, 863, 16 P.3d 610 (2001). Defendants are incompetent if they lack “the 

capacity to understand the nature of the proceedings against [them] or to assist 

in [their] own defense as a result of mental disease or defect.” RCW 

10.77.010(16). Washington law requires that a “court on its own motion or on the 

motion of any party” must order a mental health evaluation whenever there is 

“reason to doubt” a defendant’s competency. RCW 10.77.060(1)(a). 

As an initial matter, the State maintains that there is “nothing in the record 

to support Dufloth’s statement that he had previously been found incompetent in 

Kitsap County.” The State argues that because the record lacks facts supporting 

Dufloth’s claim that he was incompetent, which the State characterizes as 

nothing more than a “self-serving letter,” Dufloth may only raise this issue 

through a personal restraint petition because we cannot consider facts outside 

the record. 

The State misunderstands the basis in which a competency evaluation 
No. 81402-8-I/6

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should be ordered. While the court could have ordered Dufloth’s counsel to 

obtain a copy of the Kitsap County order finding Dufloth not competent, the 

record is sufficiently complete to allow review.

 Dufloth’s counsel is an officer of the court. See State v. White, 94 Wn.2d 

498, 502, 617 P.2d 998 (1980) (“An attorney is an officer of the court. As such, 

he owes it a duty of frankness and honesty.”). He confirmed to the court that 

another court had found his client not competent and ordered restoration, which 

was interrupted by this burglary charge.3 Defense counsel’s representation also 

confirmed that Dufloth has repeatedly raised this issue and that counsel was not 

inclined to pursue it based on counsel’s own opinion that competency was not at 

issue. Neither the court nor the prosecutor ever questioned the existence of the 

incompetency finding. Based on this record, we are left to determine whether 

there was a reason to doubt Dufloth’s competency. We proceed with our 

analysis based on the record before us. 

Dufloth contends that the trial court erred when it failed to order a 

competency hearing on the basis that defense counsel declined to make such a 

motion. We agree. 

RCW 10.77.060(1)(a) permits “any party” to motion the court for a

competency evaluation. A defendant is a party. It is undisputed that the court 

understood Dufloth’s letter stating, “I take that to be basically a request for an 

evaluation pursuant to RCW 10.77.060.” Despite Dufloth’s request and defense 

 3 It is unclear from the record exactly how close in time the incompetency 

finding was to Dufloth’s July 2019 arrest and February 2020 trial.
No. 81402-8-I/7

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counsel’s confirmation that Dufloth had been found not competent, the court 

gave great deference to counsel’s representation that counsel did not have 

competency concerns.

While the defense bears the “threshold burden” of establishing that there 

is a reason to doubt the defendant’s competency, and “although ‘considerable 

weight’ should be given to the attorney’s opinion regarding the client’s 

competency, that opinion is not necessarily dispositive. Instead, the ultimate 

question for the trial court is whether there is a ‘factual basis’ to doubt the 

defendant’s competence.” State v. Woods, 143 Wn.2d 561, 604-05, 23 P.3d 

1046 (2001) (quoting State v. Lord, 117 Wn.2d 829, 903, 822 P.2d 177 (1991)). 

Defense counsel may not waive a defendant’s right not to stand trial while 

incompetent. Fleming, 142 Wn.2d at 866.

The court misapplied the law when it determined that it was absolved of 

having to make a ruling “because the lawyers are not engaged on that issue.” 

Even where no party moves for a competency hearing, the court “shall,” on its 

own motion, order a formal evaluation whenever there is reason to doubt a 

defendant’s competency. RCW 10.77.060(1)(a). The procedures of the 

competency statute are mandatory. Fleming, 142 Wn.2d at 863. 

The question before us, then, is whether the record reflects that there was 

a “factual basis” for the trial court to doubt the competency of Dufloth. 

A “reason to doubt” is “not definitive, but vests a large measure of 

discretion” to the trial court. McCarthy, 193 Wn.2d at 804 (quoting City of Seattle 

v. Gordon, 39 Wn. App. 437, 441, 693 P.2d 741 (1985)). Though there are no 
No. 81402-8-I/8

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“fixed signs” that trigger a competency hearing, a trial court might consider a 

defendant’s demeanor, conduct, and medical and psychiatric reports. State v. 

Fedoruk, 5 Wn. App. 2d 317, 336, 426 P.3d 757 (2018). 

The State argues that the trial court properly exercised its discretion not to 

order a competency evaluation because Dufloth appeared competent, exhibiting 

“no outbursts, unusual behavior,” and his pro se communications “displayed a 

sophisticated understanding of the trial process.” However, this argument fails to 

recognize the difference between “a reason to doubt” a defendant’s competency 

and “an actual determination of competency.” Fedoruk, 5 Wn. App. 2d at 335. 

The question before the trial court and before us on appeal is not whether 

Dufloth was actually competent at the time of his trial. The only relevant question 

is whether there was a reason to doubt his competency.

This was not a case where the defendant claimed to have a competency 

issue without any support in the record. The court had undisputed confirmation 

from defense counsel, an officer of the court, that another superior court had 

found Dufloth not competent and ordered restoration at Western State Hospital. 

This strongly suggested the existence of medical and psychiatric reports 

supporting that finding. That is because when a competency evaluation is 

ordered, the court “shall either appoint or request the secretary to designate a 

qualified expert or professional person, who shall be approved by the prosecuting 

attorney, to evaluate and report upon the mental condition of the defendant.” 

RCW 10.77.060(1)(a) (emphasis added). Counsel further disclosed that 

restoration had not taken place because “[t]hese charges came about and Mr. 
No. 81402-8-I/9

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Dufloth found himself back in custody, and so here we are.” 

The trial court abused its discretion by failing to order a competency 

evaluation because the record supports a reason to doubt whether Dufloth was 

competent to stand trial. We reverse and remand for further proceedings. 

Although we remand to the trial court, we address the following issue because it

may repeat upon further proceedings on remand.

The remainder of this opinion has no precedential value. Therefore, it will 

be filed for public record in accordance with the rules governing unpublished 

opinions. See RCW 2.06.040.

Prosecutorial Misconduct

To prevail on a prosecutorial misconduct claim, a defendant must 

demonstrate that a prosecutor’s conduct was both improper and prejudicial. 

State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). To show prejudice, a 

defendant must show there is a “substantial likelihood” the prosecutor’s 

misconduct affected the jury’s verdict. State v. Thorgerson, 172 Wn.2d 438, 442-

443, 258 P.3d 43 (2011). Where a defendant fails to object to a prosecutor’s 

improper statement, the defendant waives the error unless the statement is so 

“flagrant and ill intentioned” that the prejudice could not have been remedied by 

an instruction to the jury. Id. at 443.

A prosecutor has wide discretion to make reasonable inferences from the 

evidence. In re Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). However, 

a prosecutor acts improperly where they seek a conviction based upon emotion

rather than reason. State v. Craven, 15 Wn. App. 2d 380, 385, 475 P.3d 1038 
No. 81402-8-I/10

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(2020). 

The prosecutor first introduced Williams to the jury by having him explain 

his success story thanks to the Salvation Army. During trial, the prosecutor twice 

asked resident manager Williams how the burglary made him “feel.” Both times 

the trial court sustained defense counsel’s objections.4 At a sidebar 

conversation, the prosecutor explained to the trial court why he wished to ask 

Williams how he felt about the burglary:

The Salvation Army is an organization and obviously is not a human 

being. Defense made a point that the building doesn’t exist anymore, that 

everything was cleaned up the next day, that nothing was really damaged 

or broken. And so, essentially, it’s a victimless crime, and so I think the 

way that this man felt about Mr. Dufloth breaking into the building and 

stealing stuff is relevant to this case, so that’s why I wanted to ask the 

question. 

The prosecutor again emphasized how Williams turned his life around 

both at the beginning of closing and at the end of rebuttal argument. The 

prosecutor opened closing argument by stating,

Jonathan Williams was in the Snohomish County Jail and he decided to 

turn his life around. After he was released, he immediately went to the 

Salvation Army and checked himself into a six-month rehab program. He 

completed that program and then became a resident manager, 

responsible for ninety guys like him who were fighting for their sobriety. He 

worked in that position for eighteen months before moving to Everett, 

enrolling in school to become a commercial truck driver and celebrating 

two years of sobriety. Jonathan Williams is a success story, and his 

success is due in large part to the Salvation Army. The very place that 

helped him turn his life around, this man, Mr. Delane Dufloth, chose to 

burglarize. 

The prosecutor then in rebuttal argument stated,

The last thing I want to talk about is something that you might have 

thought yourself or you might have thought about subconsciously. When 

 4 The State did not cross appeal the court’s ruling. 
No. 81402-8-I/11

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Mr. Poisel was cross-examining Mr. Williams, he asked him some

questions. He said, “Was the purse seized [by] the police?” “Was the 

bike seized by the police?” “Was the jacket seized by the police?” No. 

Salvation Army had gotten all those items back. He asked him, “Did the 

sorting area get picked up the next day? Everything put back in its proper 

place?” Mr. Williams said, “Yes.” He asked him about the door. Mr.

Williams said that it got fixed. And he asked him about the building, and 

Mr. Williams said that that building no longer exists. So, you might be 

thinking, who cares, why does this matter? But Mr. Williams testified this 

is how the Salvation Army survives, how it operates. They accept 

donations from the public, they sort them, they price them, and then they 

sell them second-hand. That’s how they generate revenue and that’s how 

they operate. That’s how they support programs like the one that turns Mr. 

Williams’s life around. 

Defense did not object to the prosecutor’s closing statements.

The State contends that the prosecutor’s comments were appropriate 

because they followed up testimony that defense elicited regarding the apparent 

de minimus effect of the crime. The State contends that “defense counsel 

brought to the jury’s attention during the trial the fact that the warehouse was 

cleaned up following the burglary, no property was damaged or broken, and the 

Salvation Army facility no longer exists. The prosecutor’s reference to the 

Salvation Army in closing argument merely provided context to Dufloth’s actions 

and was intended to discourage the jury from discounting the seriousness of the 

crime because it might be considered “victimless.”

First of all, the prosecutor misheard the testimony. When defense asked 

Williams about repairing the broken door, he said, “the frame was never repaired, 

but that’s to my knowledge. I know for quite some time after that, it was not 

repaired. The building was being sold.” Regardless, though the prosecutor may 

have feared that the jury would perceive the crime as victimless, that is not what 

defense argued. The record suggests defense introduced the fact that the area 
No. 81402-8-I/12

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was cleaned up and items put away to argue that the police failed to thoroughly 

investigate. In closing, defense argued,

Within, the days that window was closed. That evidence that 

was on that window of potential fingerprints or potential DNA is 

gone. The property that was in the stairwell was redistributed 

somewhere else within the warehouse. The value of that, any sort 

of forensic tests that they could have done to corroborate anything 

or prove that Mr. Dufloth took it is gone.

A fear that the jury may view the case as a victimless crime, is no excuse to 

solicit a conviction based on emotion. The prosecutor’s argument asked the jury 

to consider how Williams had turned his life around through the Salvation Army’s 

rehabilitation program. Prosecutors must seek convictions based only on 

probative evidence and sound reason, and not based on emotion. Craven, 15 

Wn. App. 2d at 385. 

The prosecutor’s statements were improper. However, because we 

reverse Dufloth’s conviction on other grounds, we need not reach whether the 

prosecutor’s statements were so flagrant and ill-intentioned that the prejudice 

could not have been remedied by an instruction to the jury. 

CONCLUSION

When a court is aware that a defendant has been found not competent 

and has not been restored, it raises a doubt whether the defendant is currently 

competent, and a competency evaluation should be ordered. We reverse and 
No. 81402-8-I/13

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remand to the trial court for further proceedings consistent with this opinion.

WE CONCUR: