Citations and pin cites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

AMANUEL TESFASILASYE,

AMANUEL TESFASILASYE-GOITOM,

Appellant.

)

)

)

)

)

)

)

)

)

)

)

No. 81247-5-I 

DIVISION ONE

UNPUBLISHED OPINION

ANDRUS, A.C.J. — Amanuel Tesfasilasye challenges his conviction for rape 

in the third degree. He argues the trial court erred in allowing the State to exercise 

peremptory challenges against two jurors in violation of GR 37. He further 

contends the prosecutor engaged in prosecutorial misconduct during closing 

arguments, violating his right to a fair trial. We reject both arguments and affirm.

FACTS

In 2017, Tesfasilasye worked as a driver for Solid Ground, a company that 

contracts with King County Access Transportation (Access) to transport people 

living with disabilities. One of Access’s clients, C.R., is blind. C.R. uses Access 

to travel to stores, appointments, her church, and her job. Because of her 

disability, the transit driver often helps C.R. exit the transit van and walks her to 

her door. 
No. 81247-5-I/2

- 2 -

On December 6, 2017, the Access driver picked up C.R. and several coworkers from their employer’s place of business to drive them home. C.R. was the 

last rider to be dropped off. C.R. recognized the driver as the same person who 

had driven her home on December 1, 2017. Tesfasilasye was identified as the 

driver on December 1 and 6, 2017. 

According to C.R., when they arrived at her home on December 6, the driver 

offered to carry her to her door because he knew she had experienced a dizzy 

spell on December 1. C.R. told Tesfasilasye she wanted to walk herself but, over 

her objection, he picked her up and carried her piggy-back style to her door. 

Tesfasilasye put C.R. down to unlock her door but then followed her inside. 

C.R. testified that Tesfasilasye started touching and kissing her inappropriately and 

asked “Do you want to f ---?” C.R. told him “No, I don’t want to do it; I’m not going 

to do it.” Tesfasilasye persisted, continuing to touch her, and eventually digitally 

penetrated her vagina. He also grabbed her hand and forced her to touch his 

exposed penis. She repeatedly told him she did not “want to do it.” When she told 

him she did not feel well and needed to lie down, he left. 

C.R. locked the door behind him and sat on her couch to process the event. 

She was in shock and decided not to call the police because she was unable to 

give a physical description of her assailant. 

The next day, C.R. reported the incident to people at work, including her 

boss. Her boss called Access and the police to report what had happened. 

While Tesfasilasye acknowledged driving C.R. home that day, he denied 

carrying C.R. to her door or committing any sexual misconduct. He insisted that
No. 81247-5-I/3

- 3 -

he merely offered C.R. an arm, which she took, and guided her to her door. 

Tesfasilasye testified that when C.R. opened her door, he commented on the 

darkness of her home and, when she indicated it was fine, he left to sit in his vehicle 

for a ten-minute break.

The State charged Tesfasilasye with third degree rape and the jury 

convicted him as charged. He was sentenced to 12 months in King County Jail. 

ANALYSIS

A. Peremptory Challenges

Tesfasilasye first contends the trial court erred in allowing the State to 

peremptorily strike Juror 25, an Asian American woman, and Juror 3, a Latino man,

because an objective observer could have viewed race as a factor in each of the 

State’s decisions. The record does not support this argument.

In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), 

the United States Supreme Court developed a three-part test to determine whether 

a peremptory challenge was based on improper discrimination. Under this test, 

the party objecting to the peremptory strike must make a prima facie showing of 

purposeful discrimination. Id. at 93-94. If such a showing is made, the burden 

shifts to the challenged party to provide a race-neutral explanation for the strike. 

Id. at 97. The trial court then has the duty of determining whether the objecting 

party has established purposeful discrimination. Id. at 98.

In 2018, the Washington Supreme Court adopted GR 37 to address 

concerns that Batson did not adequately remedy unconscious bias in the jury 

selection process. State v. Jefferson, 192 Wn.2d 225, 242-43, 429 P.3d 467 
No. 81247-5-I/4

- 4 -

(2018). This rule allows a party to “object to the use of a peremptory challenge to 

raise the issue of improper bias.” GR 37(c). After the objection, the party 

exercising the peremptory strike must articulate a reason for the challenge. GR 

37(d). “The court shall then evaluate the reasons given to justify the peremptory 

challenge in light of the totality of circumstances.” GR 37(e). The court must deny 

the peremptory challenge if it determines that an objective observer could view 

race or ethnicity as a factor in the use of the challenge. GR 37(e). The relevant 

objective observer is one who “is aware that implicit, institutional, and unconscious 

biases, in addition to purposeful discrimination, have resulted in the unfair 

exclusion of potential jurors in Washington State.” GR 37(f). 

The rule provides guidance to trial courts for assessing a party’s reason for 

a particular peremptory strike. Under GR 37(g), a court may take the following 

nonexclusive factors under consideration:

(i) the number and types of questions posed to the prospective juror, 

which may include consideration of whether the party exercising the 

peremptory challenge failed to question the prospective juror about 

the alleged concern or the types of questions asked about it;

(ii) whether the party exercising the peremptory challenge asked 

significantly more questions or different questions of the potential 

juror against whom the peremptory challenge was used in contrast 

to other jurors;

(iii) whether other prospective jurors provided similar answers but 

were not the subject of a peremptory challenge by that party;

(iv) whether a reason might be disproportionately associated with a 

race or ethnicity; and

(v) whether the party has used peremptory challenges 

disproportionately against a given race or ethnicity, in the present 

case or in past cases.
No. 81247-5-I/5

- 5 -

And the Supreme Court has identified, in GR 37(h), a list of reasons for a 

peremptory challenge that, because of their historical association with improper 

discrimination in jury selection, are “presumptively invalid:”

(i) having prior contact with law enforcement officers;

(ii) expressing a distrust of law enforcement or a belief that law 

enforcement officers engage in racial profiling;

(iii) having a close relationship with people who have been stopped, 

arrested, or convicted of a crime;

(iv) living in a high-crime neighborhood;

(v) having a child outside of marriage;

(vi) receiving state benefits; and 

(vii) not being a native English speaker.

The question of whether the average reasonable person could view race as 

a factor in the use of a peremptory challenge is an objective inquiry. Jefferson, 

192 Wn.2d at 249. We therefore review the application of GR 37 de novo. State 

v. Omar, 12 Wn. App. 2d 747, 751, 460 P.3d 225 (2020).

Juror 25

Tesfasilasye first challenges the propriety of allowing the State to strike 

Juror 25, an Asian American woman. 

During voir dire, the court asked prospective jurors to fill out a questionnaire 

that included questions regarding jurors’ prior experiences with sexual abuse or 

misconduct. Juror 25, who indicated that she or a relative had previously been a 

victim of sexual assault, asked to be questioned about this experience outside the 

presence of the venire. During this individual questioning session, the court asked 
No. 81247-5-I/6

- 6 -

Juror 25 about the circumstances of the prior experience, and Juror 25 stated she 

had been a victim of sexual assault as a child. The court asked how she felt about 

sitting on a case involving an alleged sexual assault between adults, to which she 

responded “you just never know, you know, what my reaction will be” but 

nevertheless felt she would be able to separate her personal experience from the 

issues presented in the case. 

Juror 25 had also indicated on the questionnaire that she was “not sure” if 

she could be fair in a case involving allegations of sexual assault. When asked to 

explain her answer, Juror 25 disclosed that her son had recently been convicted 

of sexual assault. She indicated that he had admitted to having engaged in sexual 

play with a six-year-old, during which he had put the child’s hand on his genitals. 

But, Juror 25 recounted, the victim’s version of events “was completely so different 

than his experience.” Juror 25 explained that her son’s attorney advised her and 

her son not to take the case to trial because of the “Me, too, Movement” and 

because it was her son’s word against the victim’s. Her son pleaded guilty, despite 

the fact that Juror 25 thought the allegations were untrue. She acknowledged that 

“there’s been a lot of trauma involved with that.” But Juror 25 said she could remain 

objective and the State did not challenge her for cause.

Later, during general voir dire, Juror 25 returned to the topic of her son’s 

prosecution again. She explained:

The outcome was, uh, the sentencing was much harsher than what 

had happened due to age-related issues and when it was reported. 

I think that in the courtroom, the judge recognized it, but at the same 

time because of the laws nothing could be done about it. So in my 

personal opinion, I mean, not just from this experience but just 

overall, you know, there are definite circumstances where laws get 
No. 81247-5-I/7

- 7 -

in the way to having a fair outcome or justice being done, if you will, 

so.

The State exercised a peremptory strike against Juror 25 and Tesfasilasye 

objected under GR 37. In response to the court’s request for the State’s reasons 

for striking Juror 25, the prosecutor raised concerns about “her ability to truly be 

fair and impartial in this case” based on her personal experiences. Among other 

things, the prosecutor highlighted the fact that Juror 25 described her son’s 

experience as traumatic and “talked about the fact that she did not believe that the 

perpetrator in that dynamic had actually committed the crime even though she 

wasn’t there and seemed to sort of just assume certain facts in favor of one side 

or the other without fully considering what was being said.” 

Tesfasilasye argued that this reason for striking a juror was presumptively 

invalid under GR 37(h). The State disagreed, contending that it did not strike Juror 

25 because her son had been convicted of a crime, but because Juror 25 had 

“taken a position in that case about what happened in that case without being fully 

informed” and the State was concerned that her perceptions of injustice would spill 

over into this case. 

The trial court found that the personal circumstances of Juror 25’s 

experience during her son’s prosecution sufficed to rebut any presumption of 

invalidity under GR 37 and concluded that an objective observer could not view 

Juror 25’s race as a factor in the peremptory challenge. 

Tesfasilasye argues this ruling should be reversed. First, he contends that 

the State’s reasons for excusing Juror 25 were presumptively invalid under GR 

37(h)(iii). While the State concedes that GR 37(h)(iii) is implicated in this case, it 
No. 81247-5-I/8

- 8 -

argues it successfully rebutted the presumption of invalidity because of the unique 

circumstances of Juror 25’s involvement in her son’s prosecution and her personal 

beliefs about the justice of his conviction and sentence. We agree with the State. 

The State’s challenge of Juror 25 was not based solely on her relationship 

with a person convicted of a crime. Rather, the challenge was based on Juror 25’s 

belief that her son had not committed the alleged sexual assault of which he was 

convicted and was unduly punished for it, that the victim’s version of events was 

significantly different than her son’s story of what had occurred, and that the 

circumstances of her son’s crime were similar to this case. In both cases, the State 

alleged that the defendant had forced a vulnerable victim to touch the defendant’s 

genitals. Juror 25’s comments demonstrated that she felt her son had been treated 

unfairly. Despite acknowledging that her son admitted to his actions, Juror 25 felt 

“none of it was true,” and expressed the sentiment that “laws get in the way to

having a fair outcome or justice being done.” Juror 25 admitted that the experience 

had been traumatic for her family, that she was “not sure” that she could be fair,

and that she was unsure what her reaction would be to a case involving sexual 

assault. Juror 25’s comments during voir dire created reasonable doubts about 

her ability to be impartial despite her assurances to the contrary. This situation is 

easily distinguishable from the more general contact with the criminal justice 

system referenced in GR 37(h)(iii). 

Next, Tesfasilasye argues that even if not presumptively invalid, the reasons 

the State gave implicate GR 37(g)(iv). GR 37(g)(iv) permits the court to consider 

whether a reason might be disproportionately associated with a race or ethnicity. 
No. 81247-5-I/9

- 9 -

Tesfasilasye contends the State’s challenge of Juror 25 was based on her 

perspective of the criminal justice system, a reason disproportionately associated 

with people of color. He relies on State v. Listoe, 15 Wn. App. 2d 308, 475 P.3d 

534 (2020). 

In Listoe, the defendant was charged with possession of methamphetamine 

with intent to deliver and possession of a controlled substance. Id. at 311. During 

voir dire, Juror 17, the only Black juror on the venire, expressed cynicism about 

the criminal justice system, stating that innocent people still get in trouble. Id. at 

314. Later, the State presented a nonsensical hypothetical law and asked the 

venire if they would have problems following a law they could not agree with. Id.

at 315. Juror 17 indicated that he would have problems convicting a defendant of 

a law he disagreed with. Id. When the State sought to peremptorily strike Juror 

17, Listoe raised a GR 37 objection. Id. at 316. The State explained that the strike 

was based on Juror 17’s responses, which the State believed indicated an inability 

to follow the law. Id. The trial court allowed the strike. Id. at 317. 

On appeal, Division Two concluded that the strike was improper. Id. at 319. 

The court noted that Juror 17 had never indicated that he would not follow the law, 

but had “merely expressed discomfort at the idea of convicting someone under a 

hypothetical scenario involving a ridiculous law.” Id. at 324. The court went on to 

conclude that, regardless of how persuasive the State’s race-neutral reason was, 

an objective observer aware of the realities of implicit bias could view race as a 

factor in the State’s peremptory challenge because Juror 17 was the only person 
No. 81247-5-I/10

- 10 -

of color in the venire and the only juror who voiced skepticism about the criminal 

justice system. Id. at 324. 

Listoe is distinguishable. Here, unlike Listoe, Juror 25 was not the only 

minority juror on the venire, nor was she the only Asian-American juror. Moreover, 

the State did not strike Juror 25 for expressing a general skepticism of the criminal 

justice system, as the State did in Listoe. Here, the State challenged her because 

of a negative experience she had with her son in a factually comparable case, 

which created questions about her ability to remain objective when evaluating 

allegations of sexual assault. 

Finally, Tesfasilasye argues that the challenge implicated GR 37(g)(iii) 

because Juror 11 provided similar answers but was not challenged by the State, 

implicating GR 37(g)(iii). Under GR 37(g)(iii), the court may consider whether other 

prospective jurors provided similar answers but were not the subject of a 

peremptory challenge. This argument is not supported by the record. 

During voir dire, the attorneys asked jurors how they would feel about 

rendering a verdict at the end of trial if they were still unsure of what had occurred. 

In response, Juror 11 discussed their discomfort deciding the case either way if 

the evidence was unclear, especially in situations where the potential 

consequences for the defendant could be severe. Tesfasilasye compares this 

comment to Juror 25’s statements about the harshness of her son’s sentence. 

While the State did comment on Juror 25’s perception of sentencing while 

explaining why it sought to excuse her, it was by no means the entire–or even the 

primary–justification for her removal. Juror 25 was challenged because the totality 
No. 81247-5-I/11

- 11 -

of her statements painted a picture of potential bias. The same cannot be said of 

Juror 11. 

We cannot conclude from these facts that an objective observer could have 

viewed race as a factor in the State’s decision to strike Juror 25. The court did not 

err in overruling Tesfasilaye’s GR 37 objection.

Juror 3

Tesfasilasye next contends the trial court erred in allowing the State to 

peremptorily strike Juror 3, a Latino man. 

During voir dire, defense counsel asked whether any jurors would presume 

that a sexual assault victim was telling the truth. Juror 3 indicated he would, and 

later explained that, in the past, he has instinctually sided with the victim. But

because he recognized that this instinct tips the scales against the accused, he 

would “try and weigh the facts heavier.” He went on to say that he has empathy 

and sympathy for the accused “because I know that in many people’s eyes he’s 

already guilty.” 

In response, the prosecutor asked if he would hold the State to a higher 

burden of proof and require more evidence than that needed to prove

Tesfasilasye’s guilt beyond a reasonable doubt. When Juror 3 said he was unsure, 

they had the following exchange:

[PROSECUTOR]: Yeah. I guess what would it take to convince you 

in this case beyond a reasonable doubt in a case like this, like what 

type of evidence would you want to see?

JUROR: Um, eyewitnesses - - this is going to sound stupid, I don’t 

know, DNA samples, I don’t know, whatever - - whatever evidence is 

the evidence of the day that, you know, provides a yes or a no 

accurately, you know. I don’t watch CSI, I’m not sure what types of 
No. 81247-5-I/12

- 12 -

things, but it can’t be like hearsay, like, oh, yeah, I saw him walking 

out of the room, maybe. You know what I mean? It’s got to be 

concrete.

[PROSECUTOR]: Well, you just said eyewitnesses and then you 

said it can’t be somebody who says I just saw him walk out of the 

room. So what do you mean by eyewitnesses, I guess?

JUROR: Like someone who saw the person commit the crime or 

saw the person, you know, with the candlestick walk out at 11:02 

exactly at the time that the person screamed, oh, rape, you know, 

like that’s okay, like that’s pretty good.

The State exercised a peremptory challenge against Juror 3 and Tesfasilasye 

again objected under GR 37. The prosecutor explained that the State sought to 

remove Juror 3 “because his answer to me was so unreasonable about there 

needing to be eyewitnesses to a rape case. I just think he was so shortsighted 

about the type of case this is and the type of evidence that he would require from 

the State.” The prosecutor felt “like he had this like set of evidence that he expects 

from the State that would be frankly impossible to find in most legitimate otherwise 

strong sex offense cases.” The prosecutor went on “I don’t think there’s really, 

truly any evidence that the State could provide to prove the case beyond a 

reasonable doubt to that man.” 

Tesfasilasye argued the strike was race-based and the State was “trying to 

work him towards the answer [it] wanted” because he had highlighted the fact that 

he was from an immigrant family. The trial court disagreed with Tesfasilasye and 

stated that Juror 3 gave the impression that “he could not convict on a 

circumstantial evidence case.” The court found that an objective observer could 

not have concluded that this was a race-based challenge and overruled the GR 37 

objection. 
No. 81247-5-I/13

- 13 -

Tesfasilasye challenges the trial court’s ruling, arguing that an objective 

observer could conclude that race was a factor in the State’s decision to strike 

Juror 3 because the State mischaracterized his statements and other jurors, who 

the State did not seek to strike, gave similar answers. Neither contention is 

supported by the record.

Tesfasilasye first contends that Juror 3 never explicitly stated that he would 

not convict if the only evidence presented was circumstantial. But Juror 3 did 

explicitly say he would require “concrete” evidence to corroborate a rape 

allegation. And he explained that eyewitness testimony would be sufficient only 

where it directly corroborated the victim’s complaint. These statements do 

demonstrate, as the court found, that Juror 3 could be unwilling to convict a 

defendant of rape if the only evidence was circumstantial in nature.

Tesfasilasye further contends that racial bias can be inferred from the fact 

that the State did not challenge other jurors who made similar comments, 

implicating GR 37(g)(iii). He points to comments made by Jurors 7, 31, 34, and 

40. Again, we disagree.

When asked if they could convict without eyewitnesses, Juror 7 said “Yes, 

if there’s evidence . . . . Like one of the other jurors suggested, maybe some DNA, 

I don’t know, I’d need to see all the evidence, all of the circumstances.” Unlike 

Juror 3, Juror 7 clarified they would need to see “all the evidence,” and made no 

definitive comment that they expected direct, or corroborating evidence from an 

eyewitness to convict.
No. 81247-5-I/14

- 14 -

Juror 31 indicated that while it would be easier to decide a case with direct 

evidence, they would want to look at everything and felt they could balance the 

circumstantial and direct evidence. Juror 31 explicitly said “I wouldn’t have a 

preference one over the other.” Again, unlike Juror 3, Juror 31 was open to 

considering all of the evidence presented.

Juror 40 responded similarly, stating “I think in general direct evidence is 

going to be stronger than circumstantial evidence” but explained that the “key issue 

is whether or not it corroborates the other evidence in the trial” because the jury 

has the responsibility of determining the facts. Juror 40 did not suggest they would 

need direct evidence or eyewitness testimony to corroborate a victim’s testimony 

before convicting a defendant of rape. And the last juror to be seated after both 

sides exercised their eight peremptory challenges was Juror 39. The State did not 

chose to retain Juror 40 over Juror 3—the jury was empaneled before either party 

had to consider challenging Juror 40.

Finally, the prosecutor asked Juror 34 if they were comfortable deciding a 

case on circumstantial evidence. Juror 34 responded “I guess it would be to what 

degree that the evidence was more exacting than circumstantial” but indicated that 

they had not thought it through and asked the State to come back to ask them the 

question after they had time to consider the question. Neither party questioned

Juror 34 further but Tesfasilasye exercised his sixth peremptory challenge to 

remove this juror as soon as they were placed into the jury box. We cannot 

conclude the State treated Juror 34 differently than Juror 3 given the fact that 
No. 81247-5-I/15

- 15 -

Tesfasilasye removed this juror from the panel before the State had the opportunity 

to do so. 

State v. Lahman, No.37092-5-III, slip op. (Wash. Ct. App. June 15, 2021),

1

a recent decision from Division Three of this court is instructive on whether a 

prosecutor’s articulated reason for striking a juror of color is credible after 

comparing answers given by different jurors. In that case, the defendant was on 

trial for the domestic violence assault of his girlfriend. Id. at *2. The State 

exercised a peremptory challenge against a young man with an Asian surname 

and one of the few racial minorities on the venire. Id. at *3-4. This juror had barely 

spoken during voir dire, saying only that he felt jury duty was a civic duty and that, 

when rendering a verdict, he would stick to his viewpoint regardless of whether 

other jurors disagreed. Id. When Lahman challenged the peremptory strike under 

GR 37, the State explained it was striking the juror because he was young and did 

not have any experiences with domestic violence. Id. at *5. The trial court 

overruled a GR 37 objection, concluding it was based on race-neutral reasons. Id.

On appeal, Division Three concluded that “the State’s explanation for why 

it struck [the challenged juror] is insufficient to dispel the concern” that an objective 

observer could view race as a factor in the State’s decision. Id. at *14. The juror 

had been asked very few questions and was therefore deprived of “a realistic 

opportunity to explain himself and his circumstances.” Id. at 12. While the juror 

had indicated on a questionnaire that he had no prior experience with domestic 

violence, so had 22 other members of the venire. Id. Because there was little to 

 1 https://www.courts.wa.gov/opinions/pdf/370925_pub.pdf. 
No. 81247-5-I/16

- 16 -

support the State’s reasons, the court concluded that “the record left open the 

possibility that the prosecution implicitly and unsuitably relied on a stereotype” in 

deciding to strike that juror. Id. at 14.

This case is distinguishable. First, unlike the Lahman juror, Juror 3 was 

questioned at length. The State’s decision to exercise a peremptory strike was 

based entirely on—and was supported by—his answers to those questions. 

Second, his answers were markedly different from other prospective jurors on the 

venire. Juror 3 expressed expectations and a preference for direct evidence in a 

rape case;2 the other comparable jurors did not do so. Unlike in Lahman, the 

record here is sufficient to dispel any concern that an objective observer could view 

race as a factor in Juror 3’s exclusion.

B. Prosecutorial Misconduct

Tesfasilasye next contends he did not have a constitutionally fair trial 

because the prosecutor created an inference of guilt by referring to Tesfasilasye’s 

decision to testify and by misstating the burden of proof. 

To establish prosecutorial misconduct during closing argument, a defendant 

must show that the prosecuting attorney's statements were both improper and 

prejudicial. State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015). We 

determine whether the defendant was prejudiced under one of two standards of 

review. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). To show 

prosecutorial misconduct, the defendant has the burden of establishing that (1) the 

 2 It is well-established in Washington that the elements of rape may be proved by circumstantial 

evidence as that evidence is no less valuable than direct evidence. See State v. Boggs, 80 

Wn.2d 427, 431, 495 P.2d 321 (1972); 11 WASHINGTON PRACTICE, PATTERN JURY INSTRUCTIONS:

CRIMINAL 5.01 at 188 (5th ed. 2021).
No. 81247-5-I/17

- 17 -

State acted improperly, and (2) the State's improper act prejudiced the defendant. 

Id. at 756. We must consider the prosecutor's conduct in the context of the record 

and all the circumstances at trial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 

P.3d 43 (2011).

If the defendant made a timely objection at trial, he must demonstrate that 

any improper conduct “resulted in prejudice that had a substantial likelihood of 

affecting the jury’s verdict.” Allen, 182 Wn.2d at 375. However, when a defendant 

fails to 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.” Emery, 174 Wn.2d at 760-61. In 

order to prevail under this heightened standard, the defendant must show that (1) 

no curative instruction could have eliminated the prejudicial effect, and (2) there 

was a substantial likelihood the misconduct resulted in prejudice that affected the 

verdict. Id. at 761.

Inference of Guilt

Tesfasilasye argues that the prosecutor inappropriately suggested to the 

jury that he exercised his right to testify to deceive the jury, thereby creating an 

improper inference of guilt. 

During closing, the prosecutor directed the jury to look at each “person’s 

motive[;] why are they taking the stand and saying what they’re saying.” The 

prosecutor asked the jury to evaluate Tesfasilasye’s credibility:

[Solid Ground employees are] not allowed to go into somebody’s 

house. Door-to-door is not something they’re supposed to do. The 

defendant even testified to that. Why would he reach in and turn on 
No. 81247-5-I/18

- 18 -

a light for a blind person? And he knew that [he] shouldn’t have done 

that, that’s why he took the stand and denied it.

Tesfasilasye did not object.

Tesfasilasye argues that this statement improperly commented on his 

decision to exercise his constitutional right to testify. We agree the comment was 

improper but conclude Tesfasilasye waived the error by failing to object at trial. 

We further conclude Tesfasilasye has failed to demonstrate that no curative 

instruction could have eliminated any prejudicial effect.

State v. Teas, 10 Wn. App. 2d 111, 447 P.3d 606 (2019) is dispositive of 

Tesfasilasye’s argument. In that case, the defendant, who was accused of 

sexually assaulting a woman, testified at trial and denied the allegations. Id. at 

117. During closing arguments, the prosecutor highlighted the fact that DNA 

evidence placed Teas in the victim’s bedroom and suggested that Teas took the 

stand to testify to address the overwhelming evidence against him. Id. at 119. The 

prosecutor told the jury “’And so that's why he got on the stand yesterday and 

came—came up with a story to try and explain away what happened.’” Id. Teas 

did not object to these statements. Id.

Division Two of this court agreed with Teas that “it is improper for [a 

prosecutor] to speculate as to why a defendant testified to infer guilt.” Id. at 123. 

The State’s comment implied that Teas knew he was guilty and only testified to 

explain the evidence against him. Id. at 124. But Teas did not object at trial and

the court concluded the comments were “not so flagrant and ill intentioned that the 

resulting prejudice could not be cured with a jury instruction.” Id. at 123.
No. 81247-5-I/19

- 19 -

Teas is analogous to this case. As in Teas, the prosecutor here speculated 

as to Tesfasilasye’s motives for testifying and implied that he did so only to deny 

evidence against him. The State’s comment implied that Tesfasilasye knew he 

was guilty and took the stand solely to deny his guilt. The State seems to concede 

this point. However, as in Teas, Tesfasilasye failed to object3 and Tesfasilasye 

has not demonstrated why the prosecutor’s comment could not have been cured 

by an instruction to the jury to disregard the argument.

Tesfasilasye urges us to reject the “flagrant and ill intentioned” standard 

because the improper comment was a direct attack on his constitutional rights. 

App. Reply at 14. Washington courts have long held that prosecutors’ improper 

comment on a defendant’s exercise of constitutional rights are evaluated under the 

constitutional harmless error standard. Emery, 174 Wn.2d at 757. But as Teas

recognized, we do not apply that standard until we conclude the defendant

preserved the error for appeal. 110 Wn. App. 2d at 122. In cases where a 

defendant fails to object, Washington courts must decide whether the issue has 

been preserved for appeal before analyzing whether the error was harmless 

beyond a reasonable doubt. See State v. Espey, 184 Wn. App. 360, 369-70, 336 

P.3d 1178 (2014) (applying the “flagrant and ill intentioned” standard before 

 3 Tesfasilasye maintains he preserved this issue by filing a pretrial motion in limine asking the court 

to bar the State from arguing that “unfavorable inferences can be drawn from any exercise of a 

constitutional right.” However, Tesfasilasye had a duty to object to violations of any orders in limine. 

“In a situation where a party prevails on a motion in limine and thereafter suspects a violation of 

that ruling, the party has a duty to bring the violation to the attention of the court and allow the court 

to decide what remedy, if any, to direct.” A.C. v. Bellingham Sch. Dist., 125 Wn. App. 511, 525, 

105 P.3d 400 (2004). “A standing objection to evidence in violation of a motion in limine, preserving 

the issue for appeal, is only allowed to the party losing the motion. Id. Thus, Tesfasilasye failed to 

preserve the issue. 
No. 81247-5-I/20

- 20 -

evaluating whether the error was harmless beyond a reasonable doubt). We see 

no compelling reason to deviate from this precedent.

Because Tesfasilasye failed to object to the prosecutor’s comment and has 

failed to demonstrate that any resultant prejudice could not have been cured, he 

has not demonstrated that the comment was flagrant and ill intentioned and thus 

has waived this issue for appeal.

Burden of Proof

Tesfasilasye next contends that the State’s rebuttal argument

inappropriately misstated the law and diluted its burden of proof. 

In closing arguments, defense counsel argued that reasonable doubt can 

come from a lack of evidence. Counsel highlighted the evidence the jury had not 

seen, noting that the State never presented fingerprint evidence, surveillance 

footage, a victim medical exam, or a voice lineup. 

In rebuttal, the prosecutor explained that there was no fingerprint evidence 

because there was no evidence Tesfasilasye touched anything in the house, and 

there was no DNA evidence because nothing suggested that he had left any bodily 

fluid behind. She then said 

What I am trying to say is be reasonable when you talk about it. I’m 

asking you to use that common sense. Because it would be easy to 

say, well, the evidence wasn’t as complete, we don’t really know 

what happened. That would be an easy thing to say. I’m asking you 

to not do that. That would be an unjust thing to do. Look at the 

reasonableness of the evidence set forth.

Tesfasilasye objected. The court overruled the objection and the prosecutor 

clarified, “[i]t is important that you evaluate all of the evidence. That would be a 
No. 81247-5-I/21

- 21 -

just thing to do. Evaluate all of the evidence. Look at it, and look at it in the context 

of how reasonable it is.” 

Tesfasilasye argues that the statement “that would be an unjust thing to do” 

misstated the State’s burden of proof by misrepresenting to the jury that it would 

be unfair to consider a lack of evidence in returning a verdict. But taken in context, 

there was no misstatement of the law.

We review allegations of prosecutorial misconduct during closing argument 

in light of the entire argument, the issues in the case, the evidence discussed 

during closing argument, and the court's instructions. State v. Sakellis, 164 Wn. 

App. 170, 185, 269 P.3d 1029 (2011). When reviewing the prosecutor’s argument 

as a whole, it is clear that she was not asking jurors to ignore a general scarcity of 

evidence. Rather, she asked the jury to think critically about why specific pieces 

of evidence–such as fingerprint and DNA evidence–might not exist. Moreover, the 

court instructed the jury that a reasonable doubt could arise from the “evidence or 

lack of evidence.” When viewed in context, the prosecutor did not misstate or 

dilute the burden of proof.

We therefore affirm Tesfasilasye’s conviction.

WE CONCUR: