IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

NATHAN O. BEAL,

Appellant.

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No. 38844-1-III

UNPUBLISHED OPINION

STAAB, J. — Nathan Beal was convicted of murdering his ex-wife, Mary Schaffer. 

On appeal, he argues that one of the State’s witnesses impermissibly commented on his 

right to remain silent during trial and that this constitutional error is not harmless beyond 

a reasonable doubt. Beal also appeals the imposition of the $200 criminal filing fee and 

the lifetime no-contact orders prohibiting any contact with his children. In his statement 

of additional grounds (SAG), Beal raises several other issues. 

We hold that the detective’s remark was a comment on Beal’s right to remain 

silent. However, the State has met its burden to show that the error was harmless beyond 

a reasonable doubt. Accordingly, we affirm Beal’s conviction. However, we remand for 

the court to reconsider the lifetime no-contact orders, keeping in mind Beal’s 

constitutional rights as a parent, the children’s wishes, and the need to protect the 

children from harm. We deny or decline to address the remaining issues. 

FILED

NOVEMBER 7, 2023

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 38844-1-III

State v. Beal

2

BACKGROUND

1. ALLEGATIONS

Beal and Schaffer were married and had two children together, H.B. and N.B. 

Schaffer and Beal separated in 2015 and officially divorced in 2019. After the divorce, 

Schaffer moved to Oregon with H.B. and N.B. Schaffer began dating Justin Sharp in 

2015.

In August 2019, Schaffer and Sharp travelled to Spokane to pick up the children 

who had been staying with Beal. Beal asked Schaffer to meet him in a park without the 

children present before the custody exchange. Beal told Schaffer and Sharp “there would 

be no exchange of the children unless he was able to have a one-on-one conversation 

alone with Ms. Schaffer.” Rep. of Proc. (RP) at 330. Sharp joined Schaffer for the 

conversation because she was afraid, which angered Beal.

Following the meeting, Schaffer and Sharp drove to Beal’s apartment, but Beal 

refused to exchange custody of the children. After the police were called, Beal released 

the children to Schaffer.

Two months after this incident, Beal purchased a handgun and convinced his then 

girlfriend to register it in her name.

The following year, on August 8, 2020, Schaffer was murdered in Spokane. On 

that day, Schaffer had again travelled to Spokane to retrieve H.B. and N.B., who had 
No. 38844-1-III

State v. Beal

3

been staying with Beal for approximately five weeks. Schaffer flew to Spokane, rented a 

car, and planned to drive H.B. and N.B. back to Oregon.

Schaffer was concerned for her safety. Sharp, who could not travel with Schaffer 

to Spokane, agreed to keep in constant contact with her. Schaffer sent her last text to 

Sharp at 11:44 a.m. It said: “I’m parked over here across from [Beal]’s place at the 

grocery store . . . there’s so many sketchy looking people i’m afraid to leave the car!” 

Ex. 116. 

A receipt found in Schaffer’s car indicated that she purchased snacks from 

Rosauers, a supermarket near Sharp’s apartment at noon.

At 12:14 p.m., Schaffer texted H.B. and Beal indicating that she was twenty 

minutes away from Beal’s apartment. At 12:36 p.m., Schaffer texted H.B. to let her 

know that she had arrived. H.B. responded that Beal was not in the apartment but had 

gone to the store. 

H.B. later testified that Beal had left the apartment before Schaffer arrived to get 

mochas for himself, H.B., and N.B. The coffee shop was located a block away from 

Beal’s apartment complex. H.B. testified that when Beal had purchased mochas in the 

past, the trip usually took between 20 and 30 minutes and H.B. and N.B. usually went 

with him. H.B. testified that on the day of Schaffer’s murder, the trip to get mochas took 

Beal 40 minutes to an hour. Beal’s receipt from the coffee shop was timestamped 12:30 
No. 38844-1-III

State v. Beal

4

p.m. Surveillance footage captured Beal walking on the street outside of his apartment 

complex beginning at 12:37:42 p.m.

Sharp continued texting Schaffer. When she did not respond, he tried to contact 

H.B. H.B. responded to Sharp’s texts but Beal would not allow H.B. to answer his calls. 

Sharp called the police to request a welfare check on Schaffer and provided them with a 

picture of Schaffer’s rental car.

At 2:40 p.m., officers found Schaffer dead in her rental car from a gunshot wound 

to her head. Schaffer’s vehicle was parked 20 yards from Beal’s apartment complex and 

was visible from Beal’s apartment. The driver’s side door was ajar and Schaffer was 

positioned in such a way that it appeared she was getting ready to step out of the vehicle 

when she was shot. A single Winchester 9-mm Luger shell casing was found outside of 

the vehicle.

When Schaffer was found, it appeared that she had been dead for several hours. 

She was holding her purse, which still contained her wallet and all of her credit cards. 

Her luggage was also found undisturbed in the backseat.

Officers executed a search warrant on Beal’s apartment where they found a 

backpack containing a loaded Ruger EC9s with a magazine inserted and a round in the 

chamber, as well as additional Winchester 9-mm Luger bullets. H.B. testified that she 

was aware Beal had a gun because she had seen it in a backpack in Beal’s closet.

Beal was arrested and charged with first degree murder.
No. 38844-1-III

State v. Beal

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2. TRIAL

Prior to trial, Beal was interviewed by the police. The State requested a CrR 3.5 

hearing to determine the admissibility of some of Beal’s statements to the police. The 

court found that Beal waived his constitutional right to remain silent and began 

answering questions. However, Beal stated at one point during the interview that, “I’m 

not answering any more questions,” at which time Detective Wayne Downing, who was 

interviewing Beal, terminated the interview. The court ruled that Beal’s statements, up 

until he expressly stated he did not want to answer more questions, were admissible.

At trial, multiple police witnesses testified for the State. Detective Downing 

testified regarding statements Beal made during a police interview:

[Detective Downing:] May I refer to my report? 

[The State:] Yes. 

[Detective Downing:] (Looking at a document.) He told me he doesn’t own 

a firearm but he knows—he knows how to use them.

[The State:] Okay. Did you ask the defendant if there was a firearm in his 

apartment, in his—in his house? 

[Detective Downing:] Yes, I did. 

[The State:] And what was his initial response to that? 

[Detective Downing:] He shrugged his shoulders and didn’t answer. 

[The State:] Okay. And did you ask him a clarifying question, “Is there a 

firearm in your apartment?” 

[Detective Downing:] Yes, I did. 
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State v. Beal

6

[The State:] And what was his response to that? 

[Detective Downing:] He said, “I don’t want to answer that.” 

[The State:] Okay. Did he—what was his demeanor like when he initially 

responded to that? 

[Detective Downing:] He was calm. 

[The State:] Okay. Did he ever smile? 

[Detective Downing:] He smiled off and on throughout the interview –

[The State:] Okay. 

[Detective Downing:] —yes. 

[The State:] At some point in this interview with the defendant, did you ask 

him, “Is the gun still in your backpack?” 

[Detective Downing:] Yes, I did.

[The State:] What was his reaction and what was his response to that 

question? 

[Detective Downing:] His reaction was his body language totally changed.

He slumped down in his chair, looked down at the ground, and his lower lip 

began to quiver. 

[The State:] And what was his response? 

[Detective Downing:] His response is done—is he’s done talking.

RP at 452-53. 

Following Downing’s testimony, Beal moved for a mistrial alleging that the 

Detective had impermissibly commented on Beal’s right to remain silent. The State 

responded that it had instructed Detective Downing on what he could and could not say 
No. 38844-1-III

State v. Beal

7

pursuant to the CrR 3.5 ruling but during the testimony the Detective got lost in his report 

and mistakenly testified about Beal’s request to end questioning. 

The court indicated that Beal’s statements were admissible up to the point that he 

stated he did not want to answer further questions. The court concluded that Detective 

Downing’s reference was an indirect comment on Beal’s silence but that no prejudice had 

ensued because the State did not ask the jury to infer guilt from Beal’s invocation of his 

right to remain silent. Thus, the court denied the motion for a mistrial.

Through his attorney, Beal indicated he did not want a limiting instruction that 

would draw the jury’s attention to the remark. Instead, at Beal’s suggestion, the State 

recalled Detective Downing to the stand to correct his response to the question.

Upon being recalled to testify, Detective Downing read directly from the interview 

transcript:

[The State:] Did you ask the defendant if he owned a firearm? 

[Detective Downing:] Yes, I did. 

[The State:] And what was his answer? 

[Detective Downing:] “No, I don’t.” 

[The State:] And did you ask him a second time if he owned a firearm?

[Detective Downing:] Yes, I did. 

[The State:] And what was his answer? 

[Detective Downing:] “I do not own a firearm.” 
No. 38844-1-III

State v. Beal

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[The State:] And did you ask the defendant, “Is there a firearm in your 

house or apartment?” 

[Detective Downing:] Yes, I did. 

[The State:] And what was his answer? 

[Detective Downing:] “Next question, please.” 

[The State:] And did you ask the defendant if the gun was still in his 

backpack? 

[Detective Downing:] Yes. 

[The State:] And what was his answer? 

[Detective Downing:] He asked, “What?” 

[The State:] Okay. Did you re-ask, “Is the gun still in your backpack?” 

[Detective Downing:] Yes, I did. 

[The State:] What was his answer? 

[Detective Downing:] “I don’t understand.” 

[The State:] And again, did you re-ask him again, “Is the gun still in your 

backpack?” 

[Detective Downing:] Yes, I did. 

[The State:] And what was his answer. 

[Detective Downing:] “I don’t know why you’re asking me that.”

RP at 700-01. 

The State called twenty-one witnesses in total. Officer Michael Baugh testified 

that Schaffer’s murder did not appear to be a robbery and that there were no signs of a 
No. 38844-1-III

State v. Beal

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struggle. He testified that nothing was taken from Schaffer’s vehicle, including her purse 

and luggage. 

The State called Sandra Young, whose boyfriend lived next door to Beal. She 

testified that on the day of Schaffer’s murder, she arrived at her boyfriend’s apartment 

around 12:30 p.m. While she was getting items out of her car, she heard a gunshot. 

Young stated that she looked toward the street and saw Beal directly behind Schaffer’s 

rental car. On cross-examination, the defense pointed out that Young had spoken to 

several officers on the day of Schaffer’s murder and neglected to mention Beal’s 

presence. Young testified that she did not mention Beal’s presence to the police at first 

because it was not unusual for her to see him in the neighborhood and it “didn’t occur to 

[her]” to mention it. RP at 360.

Michael Williamson testified that he lived in the same area as Beal. Williamson 

testified that on the date of Schaffer’s murder he walked to a nearby grocery store and 

noticed Schaffer’s vehicle parked on the street with the door ajar. On the return trip, he 

again walked past Schaffer’s vehicle and noticed the door still ajar. He instructed people 

nearby to call the police and upon looking in the windshield, saw blood running down 

Schaffer’s face.

Emily Goodwin testified that she dated Beal in 2020. Goodwin testified that Beal 

did not like Schaffer and recalled him saying that H.B. and N.B. “were going to be 

coming to see him for the summer and that they would not be going back.” RP at 540.
No. 38844-1-III

State v. Beal

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Christina Brewer, another ex-girlfriend of Beal, testified that she purchased Beal’s 

Ruger EC9s at his direction. She stated she purchased the gun using money given to her 

by Beal and registered it under her name at his request. Brewer testified one of the 

reasons Beal wanted the gun was because of the custody battle.

Joseph Schaffer, Schaffer’s older brother, testified that Beal had called him in the 

past and stated that “[Schaffer] needed to be taken out.” RP at 660. 

H.B., Beal and Schaffer’s fourteen-year-old daughter, testified regarding Beal’s 

actions on the day of Schaffer’s murder. H.B. testified that Beal was “energetic but 

anxious” when he returned to the apartment on the day of Schaffer’s murder with the 

mochas. RP at 654. She stated that Beal was “more alert than usual, checking his 

surroundings often” and kept checking the “curtains and the door.” Id. Additionally, 

H.B. testified that Beal was “upset or disappointed” with the custody arrangement 

between him and Schaffer. RP at 647. She also testified about her contact with Schaffer 

and Sharp on the day of Schaffer’s murder.

Sharp testified about his contact with Schaffer, the police, and H.B. on the day of 

Schaffer’s murder. He also recounted Beal’s anger and actions toward Schaffer during 

the 2019 custody exchange.
No. 38844-1-III

State v. Beal

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Jeremy Phillips and Brittany Wright, forensic scientists, testified that Beal’s 

fingerprints and DNA1 were found on the grip, trigger, textured area, and barrel of his 

Ruger EC9s. Further, Brett Bromberg-Martin, a forensic scientist, testified that a 

microscopic examination revealed that the bullet used to kill Schaffer matched bullets

test-fired from Beal’s Ruger EC9s.

Beal was the only witness that testified for the defense. He maintained that he did 

not shoot Schaffer.

The jury found Beal guilty of first degree murder.

3. SENTENCING

The court sentenced Beal to 380 months of confinement. At sentencing, the State 

asked the court to impose the $500 victim assessment, a $200 criminal filing fee, a $100 

DNA collection fee, and restitution in the amount of $4,377.42. There was no discussion 

regarding Beal’s finances or indigency status. Beal objected to the imposition of 

restitution:

[BEAL’S ATTORNEY:] In addition, your Honor, we don’t have objections 

to most—to the 36 months of community custody, the LFOs.[2] Mr. Beal is 

objecting to the victim compensation restitution. So I’ve just noted that on 

the order for restitution.

RP at 860. The court imposed all of the fees requested by the State including restitution.

 

1 Deoxyribonucleic acid.

2 Legal financial obligations.
No. 38844-1-III

State v. Beal

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The State also requested a lifetime no contact order between Beal and Schaffer’s 

family, including H.B. and N.B. Beal objected to the imposition of a lifetime no contact 

order between him and H.B. and N.B. H.B. stated through her attorney that she did not 

wish to have contact with Beal, but there was no information regarding whether N.B., 

Beal’s eleven-year-old son, wanted to have contact with Beal. The court requested that 

counsel follow up with N.B. about his wishes regarding contact. The court imposed a 

lifetime no contact order with Schaffer’s family, including Beal’s children. The court 

stated it would reconsider the no contact order upon receiving more information 

regarding N.B.’s wishes.

Beal timely appealed.

ANALYSIS

1. COMMENT ON BEAL’S SILENCE

Beal’s primary argument on appeal is that Detective Downing violated Beal’s 

constitutional right to remain silent by testifying that Beal ended the interrogation, and 

this constitutional error was not harmless beyond a reasonable doubt. The State 

maintains that the remark was not a direct comment on Beal’s right but alternatively 

argues that even if it was constitutional error, the State has demonstrated that the error 

was harmless beyond a reasonable doubt. We hold that there was error but that the error 

was harmless. 
No. 38844-1-III

State v. Beal

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A defendant’s right to silence is derived from the Fifth Amendment to the United 

States Constitution applicable to the State through the Fourteenth Amendment and article 

I, section 9 of the Washington Constitution. State v. Romero, 113 Wn. App. 779, 786, 54 

P.3d 1255 (2002). In the context of post-arrest silence, when the State provides Miranda3

warnings that implicitly promise that a defendant’s silence will not be used as evidence, 

the defendant’s invocation of this right is protected by due process under the Fourteenth 

Amendment. State v. Burke, 163 Wn.2d 204, 217, 181 P.3d 1 (2008); see also Romero, 

113 Wn. App. at 786-87 (citing Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 49 L.

Ed. 2d 91 (1976); State v. Fricks, 91 Wn.2d 391, 395-96, 588 P.2d 1328 (1979)). 

Pursuant to this protection, a prosecutor may not use a defendant’s exercise of his 

constitutional right to silence as substantive evidence of guilt, and “[a] police witness 

may not comment on the silence of the defendant so as to infer guilt from a refusal to 

answer questions.” State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996). 

In considering whether a remark rises to the level of a constitutional error, our 

Supreme Court has distinguished between a “comment” and a “reference” to a 

defendant’s silence. Burke, 163 Wn.2d at 225 (Madsen, J., dissenting). The primary 

distinction between a reference and a comment is the intended purpose of the remark. Id.

at 216. A comment on a defendant’s silence occurs when the State uses the silence to 

show or imply guilt. Lewis, 130 Wn.2d at 707. On the other hand, a reference to silence, 

 

3 Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 38844-1-III

State v. Beal

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is not considered a comment on the “constitutional right to remain silent if ‘standing 

alone, [it] was so subtle and so brief that [it] did not naturally and necessarily emphasize 

defendant’s testimonial silence.’” Burke, 163 Wn.2d at 216 (second alteration in original)

(internal quotation marks omitted) (quoting State v. Crane, 116 Wn.2d 315, 331, 804 

P.2d 10 (1991)). Some courts have characterized the distinction between a comment and 

a reference to the right to remain silent as a direct or an indirect comment on silence. 

See, e.g., Romero, 113 Wn. App. at 787. 

Whether a remark is considered a comment or a reference will dictate the standard 

of reviewing the error. “Both are improper, but only the former rise[s] to the level of 

constitutional error.” Burke, 163 Wn.2d at 255 (Madsen, J., dissenting). When the State 

makes a direct comment on the right to remain silent, the court applies the constitutional 

harmless error standard. Romero, 113 Wn. App. at 791. On the other hand, a reference 

or indirect comment does not generally rise to the level of a constitutional error, and the 

defendant bears the burden of showing prejudice. Lewis, 130 Wn.2d at 706-07; Burke, 

163 Wn.2d at 216-17. However, in Romero, this court took the distinction one step 

further and held that even an indirect comment requires application of the constitutional 

harmless error standard when the remark was intended to prejudice the defendant or 

resulted in the unintended effect of likely prejudicing the defendant. Id. at 790-91. 

Here, the trial court concluded that the remark by Detective Downing was an 

indirect comment on Beal’s right to remain silent. This conclusion finds some support in 
No. 38844-1-III

State v. Beal

15

the record. The offending comment by Detective Downing was: “His response is done—

is he’s done talking.” RP at 454. The comment was not responsive to the prosecutor’s 

question. Instead, as the prosecutor later explained, the detective had been told what he 

could say in his testimony, the police report suggested a different answer to the question, 

and the detective indicated he had lost his place in the report during his testimony. There 

were no other comments suggesting that the detective intended to infer guilt from Beal’s 

comment. Nor did the State refer to the detective’s comment during the remainder of 

trial. Detective Downing’s remark was unresponsive, subtle, and fleeting. 

On the other hand, as Beal points out, in Romero we held that “any direct police 

testimony as to the defendant’s refusal to answer questions is a violation of the 

defendant's right to silence.” Romero, 113 Wn. App. at 792.

Ultimately, it is unnecessary for us to decide whether Detective Downing’s remark 

was a direct or indirect comment on Beal’s right to remain silent. Even if it was an 

indirect comment, it had the unintended effect of likely prejudicing Beal and would 

therefore be subject to a constitutional harmless error standard. Id. at 790-91.

Under the harmless error standard, the State has the burden of proving that the 

constitutional error was harmless beyond a reasonable doubt. Id. at 795. The State must 

convince this court that a reasonable jury would have reached the same result absent the 

error because the untainted evidence was overwhelming. Id. at 794-95. 
No. 38844-1-III

State v. Beal

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The evidence against Beal was overwhelming. First, it should be noted that 

neither the State nor Detective Downing made further comments on Beal’s termination of 

the interview, nor is there any allegation that the State inferred that Beal’s comment was 

substantive evidence of guilt. Beal declined an instruction to the jury but at his request, 

Detective Downing was recalled to the stand and provided correct answers to the same 

questions without reference to Beal’s termination of the interview.

Turning to the evidence at trial, the State produced evidence that Beal harbored 

anger and resentment toward Schaffer due to their child custody arrangement. In August 

2019, during a custody exchange, Beal demanded Schaffer meet him in a park alone and 

told her that there would be no custody exchange unless he was able to have a one-on-one 

conversation with Schaffer. Sharp joined Schaffer for the meeting, which angered Beal. 

During this exchange, police ultimately had to get involved before Beal would release the 

children to Schaffer.

On the day of the murder, Schaffer was scheduled to pick up her children from 

Beal and had expressed concern for her safety. After Schaffer texted H.B. and Beal that 

she was 20 minutes away, Beal left the apartment. A receipt from the coffee shop 

indicated Beal purchased mochas at 12:30 p.m. Schaffer sent her last text to her daughter 

at 12:36 p.m., telling her she had arrived. Surveillance video showed Beal in the area of 

his apartment complex, near Schaffer’s car at 12:37 p.m. H.B. testified that it took her 

father longer than usual to get mochas. Sandra Young indicated that she heard a gunshot 
No. 38844-1-III

State v. Beal

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while she was getting items out of her vehicle and then saw Beal between Schaffer’s 

vehicle and another vehicle parked on the street.

Police found the firearm and the same type of ammunition used in the murder in 

Beal’s closet. Beal purchased the firearm using a straw purchaser and registered the gun 

in her name, telling her that the gun was being purchased in part because of the custody 

dispute. Beal’s DNA was on the grip, trigger, textured areas and barrel.

There was no evidence that Schaffer was murdered as part of a robbery. None of 

her belongings were taken, including her purse and luggage.

Given the State’s untainted evidence at trial, Detective Downing’s comment on 

Beal’s silence was harmless beyond a reasonable doubt. The evidence against Beal was 

overwhelming and a reasonable jury would have convicted Beal of the murder of 

Schaffer absent Detective Downing’s comment. 

Beal argues that Young’s testimony, regarding seeing Beal behind Schaffer’s 

parked vehicle, was not as strong as the State makes it out to be. Beal argues that the 

testimony is suspect because she did not mention Beal’s presence to police at first. 

Young testified that she did not mention Beal’s presence to the police at first because it 

was not unusual for her to see him in the neighborhood and it “didn’t occur to [her]” to 

mention it. But even without Young’s testimony, the State’s case against Beal was 

strong. Further, Young’s testimony about why she did not mention Beal at first is 

plausible and explains her initial omission. 
No. 38844-1-III

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Beal also points to the fact that his neighborhood, where Schaffer was killed, was 

unsafe. Schaffer herself told Sharp in a text message that there were a lot of “sketchylooking people.” RP at 341. This may be true, but it does not explain why none of 

Schaffer’s belongings were taken following her murder, as is the case with a typical 

robbery. Instead, the fact that nothing of value was taken from Schaffer after her murder 

supports the conclusion that this was a targeted attack. 

Beal next argues that the ballistics analysis is not reliable because BrombergMartin, the forensic scientist who conducted the analysis, read a narrative report of law 

enforcement’s theory of the case prior to conducting the analysis, and because his 

analysis was subjective. However, Bromberg-Martin also testified that “it’s generally 

considered best practice to read through all the administrative documentation as part of a 

case before you work it.” RP at 679. Further, Bromberg-Martin was qualified to give his 

expert opinion regarding whether Beal’s firearm was the one used in Schaffer’s murder. 

Bromberg-Martin had almost ten years of experience, a master’s degree, had offered 

expert testimony at least fifteen times in the past, and had performed well over 1,000 

microscopic firearm ammunition comparisons. Thus, though his analysis was subjective, 

Bromberg-Martin was qualified to give that opinion and his testimony was reliable. 

Finally, Beal argues that the evidence against him was not overwhelming because 

he testified that he did not shoot Schaffer. However, the jury’s finding of guilt 

necessarily meant that they did not find his testimony to be credible. Even considering 
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Beal’s challenges to certain aspects of the State’s case against him, this court should still 

conclude that the evidence against him was overwhelming and that Detective Downing’s 

comment was harmless beyond a reasonable doubt. 

2. DENIAL OF MOTION FOR A MISTRIAL

Alternatively, Beal argues that the court abused its discretion in denying Beal’s 

motion for a mistrial because the court recited the incorrect legal standard and because 

Beal was so prejudiced by Detective Downing’s statement that only a new trial could 

remedy the issue. We find no abuse of discretion. 

A trial court’s denial of a motion for a mistrial is reviewed for abuse of discretion. 

Lewis, 130 Wn.2d at 707. The court should grant a mistrial “only when the defendant has 

been so prejudiced that nothing short of a new trial can insure that the defendant will be 

tried fairly.” Id. The trial court is in the best position to assess the prejudice of a 

statement. Id. 

Here, the trial court researched the law pertaining to comments on a defendant’s 

silence after hearing Detective Downing’s testimony. The court, in analyzing the issue, 

recited from Burke, 163 Wn.2d at 217:

And I’m quoting from—I think it’s page 217: “In circumstances where 

silence is protected, a mere reference to the defendant’s silence by the 

government is not necessarily a violation of this principle. However, 

when the state invites the jury to infer guilt from the invocation of the 

right to remain silent, the Fifth Amendment and Article I, Section 9, of 

the Washington Constitution are violated.”
No. 38844-1-III

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RP at 517-18. The court ultimately decided that Detective Downing’s comment was a 

reference to Beal’s desire not to answer further questions and instructed the State to not

instruct the jury to infer guilt from it. The court also allowed Detective Downing to be 

recalled in order to responsively answer the State’s questions and to correct the record.

Contrary to Beal’s argument, the court did not cite an incorrect legal standard. 

Burke is the most recent Supreme Court decision on this issue and is good law. While the 

trial court did not analyze the issue using the entire Romero framework, its reliance on 

Burke was not untenable. Other than Detective Downing’s improper comment, Beal does 

not point to any other prejudice from the remark. Just as we find that the error was 

harmless beyond a reasonable doubt, we conclude that the trial court did not abuse its 

discretion by relying on Burke in denying Beal’s motion for a mistrial. 

3. LIFETIME NO CONTACT ORDER

Beal argues that the trial court erred when it imposed a lifetime no contact order 

between him and his children. 

Pursuant to RCW 9.94A.505(9), a trial court may impose “crime-related 

prohibitions” as a sentencing condition. State v. Torres, 198 Wn. App. 685, 689, 393 

P.3d 894 (2017). A trial court’s imposition of a sentencing condition is reviewed for an 

abuse of discretion. Id. A causal connection between the condition imposed and the 

crime committed is not necessary so long as the condition relates to the crime’s 

circumstances. State v. Llamas-Villa, 67 Wn. App. 448, 456, 836 P.2d 239 (1992). “A 
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no contact order is a crime-related prohibition.” State v. Howard, 182 Wn. App. 91, 101, 

328 P.3d 969 (2014).

“Sentencing conditions that interfere with a fundamental right must be sensitively 

imposed so that they are ‘reasonably necessary to accomplish the essential needs of the 

State and public order.’” Id. (quoting State v. Warren, 165 Wn.2d 17, 32, 195 P.3d 940 

(2008)). “Parents have a fundamental [ ] interest in the care, custody, and control of their 

children.” State v. Ancira, 107 Wn. App. 650, 654, 27 P.3d 1246 (2001). A court can 

impose a condition on a criminal defendant that restricts the fundamental right to parent 

as long as “the condition is reasonably necessary to prevent harm” to the child. Id.

The State contends that Beal cannot raise this sentencing issue for the first time on 

appeal. However, the record suggests that Beal did object to the no-contact order below. 

“THE COURT: All right. And then he—there’s an objection to the no contact with the 

children. [H.B.] is apparently an upcoming witness in a case?” RP at 861.

At sentencing, H.B. stated that she did not wish to have contact with Beal, but 

there was no information regarding whether N.B. wanted to have contact with his father. 

The court requested that counsel follow up with N.B. about his wishes regarding contact. 

After imposing the no-contact order between Beal and the children, the court stated that it 

would reconsider the order with regard to N.B. depending on what he wishes.

The court did not acknowledge Beal’s fundamental right to parent or analyze 

whether the no-contact order was reasonably necessary to prevent harm to the children. 
No. 38844-1-III

State v. Beal

22

Torres, 198 Wn. App. at 690; State v. Peters, 10 Wn. App. 2d 574, 584, 455 P.3d 141 

(2019). Given the rights at stake, we remand for the trial court to consider whether the

no-contact order is necessary to protect the children from harm, the impact on Beal’s 

fundamental right to parent, and to consider N.B.’s wishes regarding contact with his father. 

4. CRIMINAL FILING FEE

Beal contends that the court erred when it imposed the $200 criminal filing fee, a 

discretionary LFO, on Beal. RCW 36.18.020(2)(h). Because Beal failed to object, we 

decline to address the issue. 

A trial court may not impose discretionary costs on indigent defendants. RCW 

10.01.160(3). Pursuant to RCW 36.18.020(2)(h), a criminal filing fee may not be 

imposed on a defendant who is indigent as defined in RCW 10.01.160(3). Under RCW 

10.01.160(3), a defendant is indigent if they meet the criteria specified in RCW 

10.101.010(3)(a) through (c) (among other definitions).

Here, Beal did not object to the imposition of LFOs at sentencing. In fact, he 

affirmatively disclaimed any objection to the LFOs, including the criminal filing fee:

[BEAL’S ATTORNEY:] In addition, your Honor, we don’t have objections 

to most—to the 36 months of community custody, the LFOs. Mr. Beal is 

objecting to the victim compensation restitution. So I’ve just noted that on 

the order for restitution.

RP at 860 (emphasis added). The record does not indicate Beal’s finances at the time of 

sentencing. 
No. 38844-1-III

State v. Beal

23

Under RAP 2.5, this court may refuse to review any claim of error not raised at the 

trial court level. The only exceptions are for claimed errors of lack of jurisdiction, failure 

to establish facts upon which relief can be granted, and manifest error affecting a 

constitutional right. RAP 2.5(a). Beal does not argue that any exception to RAP 2.5 

applies on appeal.

5. STATEMENT OF ADDITIONAL GROUNDS

SAG No. 1

Beal first challenges the admissibility of the ballistics evidence matching his 

firearm to the bullet used to kill Schaffer. Beal concedes that ballistics analysis is 

admissible but argues that Bromberg-Martin’s testimony was inadmissible in this case. 

Beal’s argument does not have merit. 

Beal contends that Bromberg-Martin’s testimony “was a clear violation of the first 

point in the Daubert

[4]

checklist” because his opinion was subjective. He also argues that 

the testimony was inadmissible because Bromberg-Martin did not provide a margin of 

error because he only used a microscope for visual comparison between the test-fired 

bullets and the actual bullet used to kill Schaffer and because he read the police narrative 

report before examining the bullets. Beal also argues that the testimony was inadmissible 

under ER 702. 

 

4 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed.

2d 469 (1993). 
No. 38844-1-III

State v. Beal

24

Beal raises the admissibility of Bromberg-Martin’s testimony for the first time on 

appeal. Thus, we may decline to address the issue. See RAP 2.5(a). The record reflects 

that Beal did request a Frye5 hearing “to at least recognize that this is a subjective way of 

testing.” RP at 98. The court denied the request for a Frye hearing but told Beal’s 

counsel that she could challenge the expert’s opinion during cross-examination. Beal did 

just that on cross-examination but lodged no objections to any portion of BrombergMartin’s testimony. Despite the lack of objection, we consider the issue. 

First, it should be noted that Washington adheres to the Frye standard for 

admissibility, not Daubert. State v. Copeland, 130 Wn.2d 244, 251, 922 P.2d 1304 

(1996). Next, Bromberg-Martin’s testimony in the form of an opinion was in line with 

the requirements of ER 702. The rule states:

If scientific, technical, or other specialized knowledge will assist the trier of 

fact to understand the evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, experience, training, or 

education, may testify thereto in the form of an opinion or otherwise.

ER 702. Thus, Beal’s argument that the subjective nature of Bromberg-Martin’s 

testimony rendered it inadmissible fails. 

Beal next argues that Bromberg-Martin’s inability to provide a margin of error 

rendered his testimony inadmissible. He contends that his attorney was unable to refute 

Bromberg-Martin’s testimony without an applicable margin of error. Beal does not cite 

 

5 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 
No. 38844-1-III

State v. Beal

25

any rule of law that stands for the proposition that an expert opinion needs to provide a 

margin of error in order for testimony to be admissible. 

Notwithstanding, Bromberg-Martin was cross-examined regarding the certainty of 

his analysis. Bromberg-Martin conceded that there is “a small amount of variance even 

shot to shot with the same gun. If 100 percent of one item agreed with another one, that 

would be really unusual or atypical.” RP at 683. The defense was able to highlight the 

fact that Bromberg-Martin could not be 100 percent certain that the bullets matched. 

Beal’s arguments regarding Bromberg-Martin using only a microscope for visual 

comparison and his reading of the police narrative report before conducting his analysis 

are unsupported. He does not explain how these things render Bromberg-Martin’s 

testimony inadmissible and he does not cite any rule of law to support his position. 

SAG No. 2

Beal next challenges the “excessive media” presence during his criminal 

proceedings and argues that it violated his constitutional right to an impartial jury 

because he was not given an opportunity to “contribute” to the media’s “narrative.” He 

also argues that the trial transcript is inaccurate because it does not include off-the-record 

conversations. We reject this argument as well. 

Under article I, section 22, a criminal defendant is entitled to a “public trial” and 

“the right to an impartial jury.” These are related but distinct rights. State v. Momah, 

167 Wn.2d 140, 152, 217 P.3d 321 (2009). “The ‘impartial jury’ aspect of article I, 
No. 38844-1-III

State v. Beal

26

section 22, focuses on the defendant’s right to have unbiased jurors, whose prior 

knowledge of the case or prejudice does not taint the entire venire and render the 

defendant’s trial unfair.” Id. “Thus, voir dire is a significant aspect of trial because it 

allows parties to secure their article I, section 22 right to a fair and impartial jury through 

juror questioning.” Id. 

Beal does not provide any evidence demonstrating that his right to an impartial 

jury was violated. Instead, he makes general statements like: “it can be reasonably 

assumed” that the media would not affect the jury pool. Beal does not point to any 

specific juror in arguing that the jury pool was tainted nor does he contend that voir dire 

was insufficient to test the jury for bias. Consequently, Beal is unable to demonstrate 

how the media’s coverage of his case violated his constitutional rights. 

Beal also argues that the trial transcript is inaccurate. He states that his appellate 

attorney advised him that there were no audio or video recordings of his trial but that 

there was instead a verbatim report of the proceedings. Beal states that his attorney’s 

statement was “absolutely false.” SAG at 14. He also contends that off-the-record 

arguments were not contained in the trial transcript and that these arguments had merit. 

The connection between Beal’s argument related to the trial transcript and his 

contention that his constitutional right to an impartial jury was violated is unclear. To the 

extent that Beal is arguing that the verbatim report of proceedings is inaccurate or 
No. 38844-1-III

State v. Beal

27

incomplete, we decline to consider the argument because it relies on evidence outside the 

record.

In sum, we affirm Beal’s conviction for first degree murder, but remand for the 

sole purpose of instructing the sentencing court to consider whether the lifetime nocontact orders protecting his children are necessary to protect them from harm in light of 

the children’s wishes and Beal’s fundamental right to parent his children. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

_________________________________

Staab, J.

WE CONCUR:

_________________________________

Lawrence-Berrey, A.C.J.

Birk, J.

*

 

* The Honorable Ian S. Birk is a Court of Appeals, Division One, judge sitting in 

Division Three pursuant to CAR 21(a).