IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

THE STATE OF WASHINGTON, ) No. 80348-4-I

)

Respondent, ) ORDER GRANTING MOTION

) TO REPLACE VICTIMS’ NAMES 

 v. ) WITH INITIALS IN THE

) COURT’S OPINION AND 

TEDGY CARNELL WRIGHT, ) WITHDRAWING AND

) SUBSTITUTING OPINION

Appellant. )

Respondent the State of Washington filed a motion to withdraw the

published-in-part opinion filed in this case on July 6, 2021 and substitute the 

opinion with one that replaces the living adult victims’ names with initials. The 

panel has determined that the motion should be granted and that the opinion filed 

on July 6, 2021 be withdrawn and a substitute opinion filed using the victims’

initials. Now, therefore, it is hereby 

ORDERED that the opinion filed in this case on July 6, 2021 shall be 

withdrawn and a substitute opinion shall be filed that replaces the victims’ names 

with initials. 
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

THE STATE OF WASHINGTON, ) No. 80348-4-I

)

Respondent, )

)

 v. ) PUBLISHED IN PART OPINION

)

TEDGY CARNELL WRIGHT, )

)

Appellant. )

BOWMAN, J. — Tedgy Carnell Wright appeals several convictions resulting 

from a jury trial involving joined charges for two separate victims. Wright 

contends reversal is required because a jury question amounted to a statement 

of deadlock and the trial court violated his constitutional right to be present when 

it consulted with counsel in his absence. We hold that the jury question was not

a declaration of deadlock prompting a critical stage in the proceedings and the 

court did not violate Wright’s right to be present. In the unpublished part of this 

opinion, we conclude that the trial court did not abuse its discretion by denying 

Wright’s motion to sever his charges and his counsel’s failure to renew that 

motion did not prejudice Wright based on the evidence as it developed at trial. 

And the trial court did not deprive Wright of confrontation clause protections by 

excluding impeachment evidence, the prosecutor did not commit reversible 
No. 80348-4-I/2

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misconduct during closing, and the court did not abuse its discretion by admitting 

two photomontages using Wright’s booking photograph. Finally, cumulative error 

did not deprive Wright of a fair trial. We affirm.

FACTS

Wright appeals joined charges related to two separate incidents, one 

involving J.B. and one involving N.F. 

J.B. Incident

J.B. is a single mom with a young son. She started working as an escort 

in 2018, advertising her services on websites. On May 29, 2018, a man, later 

identified as Wright, asked about engaging her services. She agreed to meet 

him at her home in Auburn. 

J.B. let Wright in the house and he “immediately” began undressing. 

When Wright was undressed, J.B. noticed that “his body was saggy,” as if he had 

“lost a lot of weight.” Wright “said something about oral . . . without a condom,”

and J.B. “told him no.” Wright “got upset” and began putting his clothes on. As 

he dressed, Wright took a silver gun out of his jacket. J.B. told him to leave 

because she did not allow guns in her home. Wright “refused,” took J.B.’s cell 

phone out of her hand, and told her to go upstairs. Wright threatened that if she 

“said anything about what’s going on, . . . he’d kill [her] and [her] son.”

1

 

 

1 J.B. testified that her son was not home, but there were photographs of J.B. and her 

son on the walls. 
No. 80348-4-I/3

3

Once they were upstairs, Wright “started basically telling [J.B.] what to do”

while pointing the gun at her. He forced her to give him oral sex. Then Wright

put on a condom and forced her to have vaginal sex. Afterward, Wright had J.B.

walk with him to the bathroom, where she thought he put the condom in the toilet 

and washed his hands. 

Wright returned to the bedroom and put on his clothes. He began 

searching J.B.’s room and her dresser while holding the gun. He took a pair of

black Air Jordan tennis shoes with pink soles, two gold and diamond “grills,”2 a 

picture of J.B. and her “ex,” and J.B.’s wallet. He returned J.B.’s cell phone 

before he left in what “looked like” a black “newer Chrysler.” 

After Wright left, J.B. was “scared” to call the police so she “called 

somebody close to [her].” The friend went to J.B.’s home and told her that she 

“needed to call the police.” J.B. then called the police, who came to her home to 

take her statement and photographs. She also went to the hospital for a sexual 

assault examination. A forensic scientist from the Washington State Patrol Crime 

Laboratory (WSPCL) later testified that male DNA3 obtained from the perineal 

swabs in J.B.’s sexual assault kit matched a reference sample from Wright. 

 

2 Mouthpieces.

3 Deoxyribonucleic acid. 
No. 80348-4-I/4

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N.F. Incident

N.F. was not actively working as an escort. But she had advertised escort 

services online in the past, and some of her posts remained on the Internet. N.F.

communicated with Wright over social media for a few months before they met.

Wright would text N.F. asking to meet, but she ignored him because she had a 

boyfriend. In early June 2018, N.F. texted Wright that she was “ready and 

available” for sexual services because she was single. She agreed to meet him 

on June 17. 

N.F. met Wright at a Subway restaurant in SeaTac. She parked her car 

and got into Wright’s gray/silver Chrysler 200, where they talked for a while. 

Wright told N.F. he had friends that would pay her for sex. Wright offered to take 

N.F. for a drink, but N.F. did not want to leave her car at the Subway. So they 

decided to drop off N.F.’s car at her home and then “go by the water and just 

drink.” 

Rather than drive to the water, Wright drove N.F. to an apartment in 

Skyway. Once there, they listened to music and drank. Wright got “frisky” and 

offered N.F. $100 for oral sex. N.F. agreed. Wright gave her a $100 bill, and 

they went to the bedroom, where N.F. performed oral sex. At some point, Wright 

took off his shirt. N.F. made “a look of disgust” after seeing that Wright had a lot 

of “extra skin . . . hanging down.” Wright became “upset” and asked for his 

money back. When N.F. refused, Wright “went crazy.” He “threw [her] on the 

ground,” choked her with both hands around her neck, and vaginally raped her. 
No. 80348-4-I/5

5

Afterward, N.F. went to the bathroom to check if Wright had been wearing 

a condom. She did not find one. When she returned to the bedroom to get 

dressed, she saw that Wright had a silver gun with a black handle and was going 

through her purse. N.F. and Wright fought over her purse. During the struggle, 

N.F. ripped the window blinds in the bedroom. Wright pulled off N.F.’s wig and 

false eyelashes and struck her in the head multiple times with his gun. N.F. tried 

to “sneakily” call 911 from her cell phone, but Wright “caught” her, took her 

phone, and “pistol whipped” her more. Wright then told N.F. that he saw her 

identification in her purse and if she did not “follow[ ] his directions,” “I know 

where you live, I’ll kill you and your whole family.” 

Wright ultimately gave N.F. her wig and clothing back and told her to get 

dressed. “He kept the gun in his hand the whole time.” He told her to get in his 

car and then left her in Tukwila. Wright returned her two cell phones but kept her

purse. N.F. called 911 and later directed officers to the Skyway apartment, 

identifying the unit by its broken blinds. Police took N.F. to a hospital, where she 

underwent a sexual assault examination, received stitches for the wounds on her 

head, and gave a statement to a detective. 

The detective testified that at an interview the next day, N.F. said that

Wright had taken $1,300 in cash from her purse and that she had marked the 

$20 and $100 bills with a “P” on the bottom right-hand corner of each bill. At a 

later search of the Skyway apartment, officers recovered $1,240 in $20 and $100 

bills marked with a “P” and a locked toolbox containing a black and silver 

handgun. The detective also testified that officers found “black and pink 
No. 80348-4-I/6

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Jordan’s” in the Skyway apartment. The shoes appeared to be the same as 

those worn by J.B. in a photograph and matched her description of the shoes

Wright stole from her apartment.

A WSPCL forensic scientist testified that vaginal swabs from N.F.’s sexual 

assault kit showed female DNA that matched N.F. and male DNA that matched 

Wright. 

Trial

The State charged Wright with rape in the second degree of N.F.; robbery 

in the first degree of N.F. with a firearm enhancement; assault in the second 

degree of N.F. with a deadly weapon and a firearm enhancement; unlawful 

possession of a firearm in the first degree, committed on or about June 17, 2018; 

rape in the first degree of J.B. with a firearm enhancement; and unlawful 

possession of a firearm in the first degree, committed on or about May 29, 2018.

Wright moved to sever the two counts related to J.B. from the four counts 

related to N.F.. He also moved to sever the two unlawful firearm possession 

counts from the other charges involving each alleged victim. The trial court 

denied Wright’s motion to sever the counts as to each victim but bifurcated trial 

on the two unlawful possession of a firearm charges from trial on the other 

counts. After the court considered the strength of the State’s cases, Wright’s 

defense of “general denial” for both victims, the court’s ability to instruct the jury, 

the cross admissibility of evidence, and judicial economy, the court concluded:

The important consideration of judicial economy is served by trying 

these cases together. There already will be a bifurcated trial on 

firearms charges. Given the cross-admissibility of the evidence, 

there is no need for two trials involving such similar cases. 
No. 80348-4-I/7

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During discovery, Wright saw documentation that J.B. received $15,000 in 

lost wages benefits through the Department of Labor and Industries Crime 

Victims Compensation Program (CVCP). He told the court that there were “some 

questions” about “the veracity” of her application to CVCP. Wright later 

subpoenaed a CVCP claims consultant to testify at trial, intending to offer 

“relevant evidence that goes to [J.B.’s] bias of financial interest in the outcome of 

this case.” Wright also intended to show that J.B. falsely represented that she 

worked as a receptionist for City Live Barbershop on her CVCP benefits 

application. The trial court quashed the subpoena. The court told defense, 

“[Y]ou can certainly ask [J.B.] about the representation she made to [CVCP] . . . 

as part of assessing her credibility,” but “we’re not litigating whether the claim 

was properly paid or not, because that is collateral.”

Before trial, the State moved to preclude defense counsel from asking 

whether J.B. had reported any income from City Live Barbershop to the IRS.4 

The State argued the question “has no bearing on the issues of this case” and 

“its probative value is super low.” Defense counsel asserted that the evidence 

“would establish that [J.B.] has no corroboration of her claim that she did in fact 

receive payment as she claims from City Live Barbershop” and that it was 

“relevant and material to the Defense that [J.B.] is not a credible person.” The 

trial court granted the State’s motion, noting that defense counsel already 

planned to call Gloria Wimberly, the barbershop’s owner, to testify that J.B. was 

not in fact employed at the barbershop. The trial court also granted the State’s

 

4 United States Internal Revenue Service. 
No. 80348-4-I/8

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motion to exclude all evidence or questioning about the Wells Fargo debit card

that J.B. reported stolen by Wright. The court allowed defense only to “crossexamine [J.B.] about what she told the investigators and . . . if her story has 

changed over time.”

After jury selection began but before the court empaneled a jury, defense 

counsel renewed Wright’s motion to sever the counts related to J.B. from those 

related to N.F. to preserve the issue for appeal. Defense counsel did not provide 

any more argument about the motion. The court denied the renewed motion to 

sever but noted that Wright had preserved the issue for appeal. 

Trial testimony began on March 26, 2019 and continued for two weeks. 

Wright did not testify but the court admitted a recorded statement he made to a 

detective on the day officers arrested him for the N.F. incident. Wright’s defense 

theory as to the rape counts was consent. Defense counsel argued that Wright 

had paid J.B. for sex, pointing to evidence that at her defense interview, J.B. said 

Wright gave her two $100 bills “upon his entering her residence.” Defense 

counsel also argued that J.B. was not credible, pointing out the inconsistencies in 

her various accounts of the incident and that she lied on her CVCP application 

about working for City Live Barbershop. As to N.F., defense counsel pointed out 

that although N.F. testified she was not posting advertisements as an escort at 

the time, she texted Wright that she was “ready and available” for sex work. 

Defense counsel also argued that N.F. agreed to go into the Skyway apartment 

and later agreed to perform oral sex. 
No. 80348-4-I/9

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On Thursday, April 11, 2019, the parties made closing arguments on all 

but the unlawful possession of firearm counts. After the State’s closing, Wright 

moved for a mistrial. He asserted that during closing argument, the prosecutor 

impermissibly vouched for the victims’ credibility, commented on facts outside the 

record, and improperly argued that “one crime proved the other.” The court 

denied the motion.

The jury began deliberating Thursday afternoon. On the morning of the 

following Tuesday, the jury inquired, “If we are unable to reach a verdict on a 

count, what happens?” The trial court conferred with defense counsel and the 

State, and they agreed to tell the jury, “See your instructions, particularly 

instructions #10 and #28.” Wright was not present during the conference.

5

On Tuesday afternoon, the jury returned guilty verdicts on the rape, 

robbery, and assault counts as charged.

6

 By special verdict, the jury found 

Wright guilty of the firearm enhancements related to the assault and two rape 

charges.7 

Wright moved to arrest the judgment and for a new trial on multiple 

grounds. He argued among other things that “a new trial should be granted 

because the trial court erred in failing to have [Wright] present upon its 

 

5 The conference itself is not in the record, and the trial court did not promptly 

memorialize the conference on the record. Instead, the only reference to the conference is during 

a later hearing on Wright’s motion for a new trial. 

6 The trial court later vacated the conviction for assault of N.F. in the second degree 

based on the parties’ agreement that it merged into the robbery charge. 

7 The trial then proceeded on the two unlawful possession of a firearm charges. The jury 

found Wright guilty of both unlawful possession of a firearm counts. Wright does not appeal 

these convictions or the court’s decision to sever the unlawful possession of a firearm counts 

from the other charges.
No. 80348-4-I/10

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consideration and response to a jury question that arose during jury 

deliberations.” The trial court denied Wright’s motion. The court acknowledged 

that Wright was not present at the conference but concluded that the law is 

“pretty clear that the matter of a jury question, at least on a point of law as was 

involved here, is not considered a critical phase of the proceeding for which the 

Defendant’s presence is required.” 

The trial court sentenced Wright to an indeterminate sentence of 438 

months. Wright appeals. 

ANALYSIS

Right To Be Present

Wright contends the trial court deprived him of his right to be present

during “a ‘critical stage’ of the trial” when it consulted with counsel about a jury 

question in his absence. We review de novo whether a trial court violated a 

defendant’s constitutional right to be present. State v. Irby, 170 Wn.2d 874, 880, 

246 P.3d 796 (2011). 

A criminal defendant has a constitutional right to be present at all critical 

stages of a trial under article I, section 22 of the Washington State Constitution 

as well as the due process clause8 and the Sixth Amendment to the United 

States Constitution. Irby, 170 Wn.2d at 874. The core of this right is “the right to 

be present when evidence is being presented or whenever the defendant’s 

presence has ‘a relation, reasonably substantial,’ to the opportunity to defend 

against the charge.” State v. Bremer, 98 Wn. App. 832, 834, 991 P.2d 118 

 

8 U.S. CONST. amend. XIV.
No. 80348-4-I/11

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(2000) (quoting In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 

(1994)). But the right is not absolute. Irby, 170 Wn.2d at 881. Rather, “ ‘the 

presence of a defendant is a condition of due process to the extent that a fair and 

just hearing would be thwarted by his absence.’ ” Irby, 170 Wn.2d at 881 

(quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S. Ct. 330, 78 L. Ed. 

674 (1934)). A defendant does not have a right to be present when his 

“ ‘presence would be useless, or the benefit but a shadow.’ ” Irby, 170 Wn.2d at 

881 (quoting Snyder, 291 U.S. at 106-07).

Generally, a defendant does not have the right to be present during inchambers or bench conferences on legal matters that do not require the 

resolution of disputed facts. Lord, 123 Wn.2d at 306. For example, in State v. 

Sublett, 156 Wn. App. 160, 178, 231 P.3d 231 (2010), aff’d, 176 Wn.2d 58, 292 

P.3d 715 (2012), a deliberating jury submitted a question to the court seeking 

clarification about the definition of “intent.” Counsel and the judge met in 

chambers without the defendant to address the jury’s question. Counsel agreed 

to answer the question by referring the jury back to their instructions. Sublett, 

156 Wn. App. at 178. Sublett appealed his conviction, arguing that he had a right 

to be present when the court and counsel addressed the jury’s question. Sublett, 

156 Wn. App. at 181. We held that the conference “was not a critical stage of the 

proceedings because it involved only the purely legal issue of how to respond to 

the jury’s request for a clarification in one of the trial court’s instructions.” Sublett, 

156 Wn. App. at 183. 
No. 80348-4-I/12

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By contrast, a defendant has a constitutional right to be present when the 

court is responding to a declaration from a jury that they are “deadlocked.” State 

v. Burdette, 178 Wn. App. 183, 201, 313 P.3d 1235 (2013). In Burdette, the jury 

sent a message to the court that stated, “ ‘Jury is deadlocked over several issues 

relating to the defendant’s intent.’ ” Burdette, 178 Wn. App. at 189. This “bald 

assertion of deadlock” came only a few hours after the jury began deliberating. 

Burdette, 178 Wn. App. at 196. After consulting with counsel in chambers 

without the defendant, the court instructed the jury, “ ‘[P]lease continue to 

deliberate in an effort to reach verdicts.’ ” Burdette, 178 Wn. App. at 189.9 The 

jury acquitted Burdette of one charge but returned a guilty verdict on the other. 

Burdette, 178 Wn. App. at 189.

Burdette appealed his conviction, arguing he had a right to be present 

when the court discussed its response to the jury’s communication. Burdette, 

178 Wn. App. at 189-90. We held that although the communication did not 

require the resolution of facts, “the defendant’s presence at this stage has a 

direct relation to the fullness of his opportunity to defend against the charge.” 

Burdette, 178 Wn. App. at 201. We explained:

To a defendant, all may pivot on how long the court will require a 

deadlocked jury to continue deliberations before declaring a 

mistrial. In some situations, a defendant may desire a quick mistrial 

and in others more deliberations in hope of an acquittal. Whatever 

the case, much is at stake at this stage and a defendant may 

reasonably wish to actively participate by making his opinion known 

to his lawyer or, if allowed, to the judge. 

Burdette, 178 Wn. App. at 201.

 

9 Alteration in original. 
No. 80348-4-I/13

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Wright argues that Burdette should control here because “[l]ike the jury’s 

question in Burdette, the question from Mr. Wright’s jury related to deadlock.” 

But the jury in Burdette did not pose a question. It made a “bald assertion of 

deadlock,” which required the defendant’s presence for participation in strategic 

decision-making about whether to seek a mistrial. Burdette, 178 Wn. App. at 

195-96. 

Here, the jury heard testimony from several witnesses over two weeks

about four separate charges involving two victims. After one and a half days of

deliberations, the jury asked the trial court, “If we are unable to reach a verdict on 

a count, what happens?” Unlike Burdette, the jury’s question was not an 

assertion of deadlock. Rather, it was a question about how to proceed in the 

event they were unable to reach a verdict on one of four separate counts.10 

Resolution of the jury’s question called for clarifying the court’s instructions 

related to the deliberation process—a purely legal question. The court and 

counsel agreed to answer the question by referring the jury back to the 

instructions as a whole, and “particularly” instructions 10 and 28. 

Jury instruction 10 stated, “A separate crime is charged in each count. 

You must decide each count separately. Your verdict on one count should not 

control your verdict on any other count.” Instruction 28 stated, in pertinent part:

When you begin deliberating, you should first select a 

presiding juror. The presiding juror’s duty is to see that you discuss 

 

10 The dissent contends this case is similar to Burdette because “the jury indicated that it 

was having trouble agreeing even though it did not use the term ‘deadlock.’ ” Even if that were 

true, it still ignores that the jury question related to only one of four counts. Any discussion about 

whether to declare a mistrial and discharge the jury—the critical stage identified in Burdette—

would not occur until after the jury had fully considered all four counts separately.
No. 80348-4-I/14

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the issues in this case in an orderly and reasonable manner, that 

you discuss each issue submitted for your decision fully and fairly, 

and that each one of you has a chance to be heard on every 

question before you.

. . . .

You must fill in the blank provided in each verdict form the 

words “not guilty” or the word “guilty,” according to the decision you 

reach.

Because this is a criminal case, each of you must agree for 

you to return a verdict. When all of you have so agreed, fill in the 

verdict forms to express your decision. The presiding juror must

sign the verdict forms and notify the bailiff. The bailiff will bring you 

into court to declare your verdict. 

Because the jury question did not amount to a declaration of deadlock, the 

parties did not discuss “how long the court will require a deadlocked jury to 

continue deliberations before declaring a mistrial.” Burdette, 178 Wn. App. at 

201. As such, Wright’s presence had no “relation, reasonably substantial,” to his 

opportunity to defend against his charges. Lord, 123 Wn.2d at 306. The trial 

court did not violate Wright’s constitutional right to be present at all critical stages 

of the proceedings.11

The rest of this opinion has no precedential value and should not be

published in accordance with RCW 2.06.040.

 

11 Wright also complains that the trial court’s answer to the jury’s question was error. He 

contends that the court should have also emphasized jury instruction 2, which explains jurors 

should not “surrender [their] honest belief about the value or significance of evidence solely 

because of the opinions of [their] fellow jurors” or “change [their] mind just for the purpose of 

reaching a verdict.” We first note that the court referred the jury to their instructions as a whole. 

In any event, the adequacy of the court’s response to the jury’s question is a different inquiry 

altogether than the nature of the jurors’ communication itself. And Wright does not claim 

instructional error on appeal. Instead, he argues that the violation of his right to be present is not 

harmless because the court’s answer was unfair. Because we conclude that the court did not 

violate Wright’s constitutional right to be present, we do not reach harmless error. 
No. 80348-4-I/15

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Severance

Wright contends the trial court erred by denying his motion to sever the 

counts related to J.B. from those involving N.F..

12 We disagree. 

“Severance” refers to “dividing joined offenses into separate charging 

documents.” State v. Bluford, 188 Wn.2d 298, 306, 393 P.3d 1219 (2017). 

“Severance may be ordered on a party’s motion where ‘the court determines that 

severance will promote a fair determination of the defendant’s guilt or innocence 

of each offense.’ ” Bluford, 188 Wn.2d at 306 (quoting CrR 4.4(b)). 

“ ‘Defendants seeking severance have the burden of demonstrating that a trial 

involving both counts would be so manifestly prejudicial as to outweigh the 

concern for judicial economy.’ ” State v. Moses, 193 Wn. App. 341, 359-60, 372 

P.3d 147 (2016) (quoting State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 

(1990)). 

“Severance of charges is important when there is a risk that the jury will 

use the evidence of one crime to infer the defendant’s guilt for another crime or 

 

12 Wright also argues that the trial court should have severed the N.F. and J.B. charges 

based on evidence and testimony that developed after the trial court denied his initial motion. But 

as Wright acknowledges, defense counsel did not call the trial court’s attention to any relevant

change in circumstances when he renewed Wright’s severance motion during jury selection. And 

Wright did not renew his severance motion at or before the close of the evidence. Wright cites 

State v. Jones, 93 Wn. App. 166, 172 n.8, 968 P.2d 888 (1998), for the proposition that on 

appeal, “all arguments for severance . . . supported by [the] record were ‘subsumed within 

[defendant’s] assertion at trial that severance should be granted because of the prejudice which 

would result from a joint trial.’ ” Jones is distinguishable because the defendant moved to sever 

based on the evidence as it developed at trial. Jones, 93 Wn. App. at 170. Wright did not. And

Wright renewed his severance motion during jury selection in front of the trial judge who did not 

decide Wright’s initial severance motion. The trial court would have had no reason to know of 

any relevant evidentiary developments unless Wright specifically argued them. We conclude 

Wright waived his argument that the trial court erred by not severing the charges based on the

evidence as it developed at trial. See CrR 4.4(a)(2) (severance is waived by failure to renew the 

motion before or at the close of all the evidence); RAP 2.5(a) (an argument not made below is 

waived on appeal). 
No. 80348-4-I/16

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to infer a general criminal disposition.” State v. Sutherby, 165 Wn.2d 870, 883, 

204 P.3d 916 (2009). 

In determining whether the potential for prejudice requires 

severance, a trial court must consider (1) the strength of the State’s 

evidence on each count; (2) the clarity of defenses as to each 

count; (3) court instructions to the jury to consider each count 

separately; and (4) the admissibility of evidence of the other 

charges even if not joined for trial. 

State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994). Additionally, “any 

residual prejudice must be weighed against the need for judicial economy.” 

Russell, 125 Wn.2d at 63. “The failure of the trial court to sever counts is 

reversible only upon a showing that the court’s decision was a manifest abuse of 

discretion.” Bythrow, 114 Wn.2d at 717.

(1) Strength of State’s Evidence on Each Count

Wright contends that the strength of the State’s evidence on each count 

favored severance “because the case involving [J.B.] was much weaker than the 

case involving [N.F.].” The State counters that “the trial court reasonably found 

that the evidence in both cases was . . . independently strong.” We agree with 

the State.

Wright asserts that “the single piece of evidence corroborating [J.B.]’s 

accusations” was the pair of Air Jordans officers photographed at the Skyway 

apartment “that detectives speculated might be women’s shoes and might be the 

pair [J.B.] reported stolen.” But Wright is incorrect. The trial court’s ruling on 
No. 80348-4-I/17

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Wright’s initial severance motion lists the corroborating evidence 

it relied on in detail:

[T]he presence of the defendant’s DNA on both N.F. and J.B.’s 

genitals after a sexual assault examination, photo[ ]montages 

shown to N.F. and J.B. where they each identified the defendant as 

their assailant, and a firearm recovered from the defendant’s 

residence that matches the description of the firearm provided by

N.F. and J.B. show, on balance, that the State’s case is relatively 

strong as to [N.F.’s] Counts . . . and as to [J.B.’s] Counts.

The evidence in the J.B. counts was not weak enough to make it 

“necess[ary] for the jury to base its finding of guilt on . . . one count on the 

strength of the evidence on another count.” State v. Smith, 74 Wn.2d 744, 755, 

446 P.2d 571 (1968), vacated in part on other grounds, Smith v. Washington, 

408 U.S. 934, 92 S. Ct. 2852, 33 L. Ed. 2d 747 (1972). The trial court did not 

abuse its discretion by concluding that consideration of the first factor did not 

favor severance. 

(2) Clarity of Defenses as to Each Count

The purpose of the second factor in the severance inquiry is to prevent 

“[t]he likelihood that joinder will cause a jury to be confused as to the accused’s 

defenses.” Russell, 125 Wn.2d at 64. This likelihood is “very small” when the 

defenses are identical on each charge. Russell, 125 Wn.2d at 64. Wright

concedes that his defenses of “consent” to the rape charges and “general denial”

as to the other charges “are consistent with one another.” The trial court did not 

abuse its discretion when it determined this factor did not favor severance. 
No. 80348-4-I/18

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(3) Court’s Instructions To Consider Each Count Separately

“The third factor to consider is whether the court properly instructed the 

jury to consider each count separately.” Russell, 125 Wn.2d at 66. Here, in 

denying Wright’s initial motion to sever, the trial court stated it would “instruct the 

jury that its verdict on one count should not affect its decision as to any other 

count charged.” And the trial court properly instructed the jury, “A separate crime 

is charged in each count. You must decide each count separately. Your verdict 

on one count should not control your verdict on any other count.” For these 

reasons, the trial court did not abuse its discretion by concluding that the third 

factor did not support severance.

Wright disagrees and contends the trial court’s instruction was insufficient 

because the prosecutor improperly encouraged consideration of the counts 

together by “telling the jury that Mr. Wright carefully selected his victims and 

attacked them in ‘almost the exact same’ manner.” Wright points out that in the 

context of alleged crimes sexual in nature, “there is a recognized danger of 

prejudice to the defendant even if the jury is properly instructed to consider the 

crimes separately.” Sutherby, 165 Wn.2d at 884. 

Sutherby involved joining counts of possession of child pornography with 

counts of child rape and molestation where it was “highly likely” that evidence of 

the child pornography charges and evidence of the other charges was not cross

admissible because the images were not of the victim.

13

 Sutherby, 165 Wn.2d at 

 

13 The Sutherby court considered cross admissibility in the context of determining 

whether the defendant’s trial counsel was ineffective for failing to seek severance of the charges. 

Sutherby, 165 Wn.2d at 877.
No. 80348-4-I/19

19

886. The prosecutor capitalized on joinder by “consistently argu[ing] that the 

presence of child pornography on Sutherby’s computers proved he sexually 

abused his granddaughter.” Sutherby, 165 Wn.2d at 885.14 The prosecutor also 

argued:

“And how do you know that this man has a problem with sex with 

children and he fantasized about it and this was a present for him? 

You . . . saw a representative sample from the child pornography 

on that screen. We know he is predisposed to touching children in 

a sexual manner.” 

Sutherby, 165 Wn.2d at 885-86.

15

 

Here, as discussed in the fourth factor below, evidence of the incident 

involving each victim was cross admissible as probative of a common scheme or 

plan. As a result, it was not improper for the prosecutor to suggest that 

similarities between the two incidents were probative of “ ‘a design (not a 

disposition) to rape.’ ” State v. Lough, 125 Wn.2d 847, 858-59, 889 P.2d 487 

(1995) (quoting 2 JOHN H. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 357, 

at 335 (James H. Chadbourn rev. ed. 1979)). The prosecutor’s argument here, 

which urged the jury to consider the evidence for a proper purpose, is 

distinguishable from Sutherby, where the prosecutor affirmatively argued the jury 

should consider the evidence for an improper purpose.16 Wright fails to establish 

 

14 Emphasis added.

15 Emphasis added.

16 And an ER 404(b) limiting instruction would have mitigated any risk that the jury 

considered evidence of one incident as propensity evidence related to the other incident. The 

trial court invited the parties “to come up with a limiting instruction that you feel comfortable with,” 

but there is no indication in the record that Wright proposed one. Nor does he cite persuasive 

authority that the trial court must give one. “A trial court is not required to sua sponte give a 

limiting instruction for ER 404(b) evidence, absent a request for such a limiting instruction.” State 

v. Russell, 171 Wn.2d 118, 124, 249 P.3d 604 (2011). 
No. 80348-4-I/20

20

that the trial court erred by not severing the charges based on the prosecutor’s 

statements at trial.

(4) Cross Admissibility of Evidence

The fourth severance factor asks whether “evidence of each count would 

be cross admissible under ER 404(b) if severance were granted.” Russell, 125 

Wn.2d at 66. Wright argues the trial court “erroneously believed that random 

similarities” between the two incidents “were sufficient to show a ‘common plan 

or scheme.’ ”

Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show action in 

conformity therewith.” “The same evidence may, however, be admissible for any 

other purpose, depending on its relevance and the balancing of its probative 

value and danger of unfair prejudice.”17 State v. Gresham, 173 Wn.2d 405, 420, 

269 P.3d 207 (2012). Relevant here, evidence of other misconduct is admissible 

to show a “common scheme or plan.” Gresham, 173 Wn.2d at 421. 

There are two categories of common scheme or plan evidence: 

(1) “[W]here several crimes constitute constituent parts of a plan in 

which each crime is but a piece of the larger plan” and (2) where 

“an individual devises a plan and uses it repeatedly to perpetrate 

separate but very similar crimes.” 

Gresham, 173 Wn.2d at 421-22 (quoting Lough, 125 Wn.2d at 854-55). 

Evidence of the second type of common scheme or plan is admissible “because 

it is not an effort to prove the character of the defendant. Instead, it is offered to 

 

17 Wright does not argue that the trial court abused its discretion in its ER 403 balancing 

of the cross admissible evidence’s probative value against its potential for prejudice. 
No. 80348-4-I/21

21

show that the defendant has developed a plan and has again put that particular 

plan into action.” Gresham, 173 Wn.2d at 422; cf. State v. York, 50 Wn. App. 

446, 457, 749 P.2d 683 (1987) (“Demonstration of th[e] plan makes it more 

probable that the acts occurred as charged.”). 

This case involves only the second category. To introduce evidence of 

the second type of common scheme or plan, the prior misconduct and the 

charged crime “must demonstrate ‘such occurrence of common features that the 

various acts are naturally to be explained as caused by a general plan of which’ 

the two are simply ‘individual manifestations.’ ” Gresham, 173 Wn.2d at 422 

(quoting Lough, 125 Wn.2d at 860). Mere similarity in results is insufficient. 

Gresham, 173 Wn.2d at 422. Still, “while the prior act and charged crime must 

be markedly and substantially similar, the commonality need not be ‘a unique 

method of committing the crime.’ ” Gresham, 173 Wn.2d at 422 (quoting State v. 

DeVincentis, 150 Wn.2d 11, 20-21, 74 P.3d 119 (2003)). 

Here, the trial court found that “[b]ased on the State’s offer o[f] proof, when 

analyzed together the two separate incidents were of such striking similarity as to 

warrant a finding of common scheme or plan on the part of the defendant.” The 

court listed the similarities between the N.F. and J.B. incidents in its findings: 

1. The defendant met both women through social media within 

days of meeting in-person

2. The defendant had casual conversations with both women prior 

to any sexual activity

3. The defendant requested vaginal sexual intercourse and both 

women refused such activity

4. The defendant’s demeanor became violent prior to vaginal 

sexual intercourse

5. The defendant threatened physical violence prior to vaginal 

sexual intercourse
No. 80348-4-I/22

22

6. Defendant used physical violence or the threat thereof during 

vaginal sexual intercourse

7. Both women were engaged in commercial sexual activity

8. Both women were African-American females between 28 and 

30 years old

9. Defendant used a condom during both incidents of vaginal 

sexual intercourse

10. Defendant disposed of condom in toilet after completing vaginal 

sexual intercourse

11. Defendant took property belonging to both women after 

completing vaginal sexual intercourse

12. Defendant threatened both women about reporting incident to 

anyone

13. Defendant took a photo of both women or their family prior to

leaving

14. Defendant ceased contact and erased his social media 

presence after both incidents

15. Defendant utilized a firearm that was a silver handgun as 

described by both women.

Wright advances several arguments to support his assertion that these

similarities were insufficient for cross admission as evidence of a common 

scheme or plan. But none of his arguments establishes that the trial court 

abused its discretion.

First, Wright argues that the first, second, eighth, ninth, and tenth 

similarities found by the trial court “are explainable as normal behavior in the age 

of online dating—they suggest only that Mr. Wright wanted to socialize and have 

protected sex with women of his same general age and race.” Wright contends 

that these similarities are merely random and favored severance because “they 

do not indicate any criminal premeditation.” 

But the authority is to the contrary. See DeVincentis, 150 Wn.2d at 22 

(similarities included defendant’s getting to know young people through a safe 

channel and bringing them into his home); State v. Slocum, 183 Wn. App. 438, 
No. 80348-4-I/23

23

455, 333 P.3d 541 (2014) (not abuse of discretion to admit evidence that 

defendant had, “in what would be perceived as grandfatherly behavior,” invited 

both victims to sit with him in his recliner). The standard requires that the two 

incidents being compared have enough features in common to show “a general 

plan,” not a criminally premeditated plan. DeVincentis, 150 Wn.2d at 21; see

People v. Ewoldt, 7 Cal. 4th 380, 399, 867 P.2d 757 (1994) (rejecting the 

premise that “a common design or plan cannot be established by evidence 

reflecting that the defendant committed markedly similar acts of misconduct 

against similar victims under similar circumstances, unless all of these acts are 

part of a single, continuing conception or plot”), cited with approval in Lough, 125 

Wn.2d at 855-56. We need not consider whether there is a plausible innocent 

explanation for each similarity. 

Next, Wright challenges the trial court’s third, fourth, fifth, sixth, and twelfth

findings. Wright asserts that these similarities “describe essentially every vaginal 

rape, pre-planned or otherwise,” and so they “tend to show only that Mr. Wright 

commits rape, not that he has developed a ‘plan or scheme’ for doing so.” We 

reject the suggestion that every vaginal rape is similar.

18

 Even so, our Supreme 

Court has rejected the proposition that similarities must be “unique” or 

“uncommon to the way the crime is typically committed” to support admission as 

 

18 A perpetrator’s plan or scheme to commit sexual assault may vary depending on who 

the perpetrator chooses as a victim—a stranger, an acquaintance, an intimate partner, a family 

member, etc. And perpetrators use different forms of violence to commit sexual assault—use of 

force, threat of force, enticement, display of a weapon, or preying on those unable to consent. 

The suggestion that every vaginal rape is similar brushes aside these dynamics of sexual assault

and presumes that every perpetrator of sexual violence exerts power and control over their victim 

in the same manner. 
No. 80348-4-I/24

24

evidence of a common scheme or plan. DeVincentis, 150 Wn.2d at 18. The 

court held, “Although a unique method of committing the bad acts is a potential 

factor in determining similarity, uniqueness is not required.” DeVincentis, 150 

Wn.2d at 21. 

The trial court did not err by considering similarities between the N.F. and 

J.B. incidents as evidence of a common scheme or plan, even if that plan was

not elaborate or based on special expertise. As a result, the trial court did not 

abuse its discretion in determining that evidence of the two incidents was cross

admissible under the fourth severance factor.

(5) Judicial Economy

The final consideration in the severance analysis requires the court to 

weigh any prejudice to the defendant resulting from joinder against the concerns 

for judicial economy. Russell, 125 Wn.2d at 63. Judicial economy is always a 

consideration, whether or not the State specifically argues it. See Bluford, 188 

Wn.2d at 311 (“[I]f judicial economy is irrelevant, the justification for joinder 

disappears, and defendants would essentially be entitled to separate charging 

documents and trials on each alleged offense as a matter of right.”). “Foremost 

among these concerns is the conservation of judicial resources and public 

funds.” Bythrow, 114 Wn.2d at 723. “A single trial obviously only requires one 

courtroom and judge. Only one group of jurors need serve, and the expenditure 

of time for jury voir dire and trial is significantly reduced when the offenses are 

tried together.” Bythrow, 114 Wn.2d at 723. “Furthermore, the reduced delay on 
No. 80348-4-I/25

25

the disposition of the criminal charges, in trial and through the appellate process, 

serves the public.” Bythrow, 114 Wn.2d at 723.

Here, Wright fails to show that prejudice from joinder was likely under any 

of the other severance factors. And by bifurcating the trials on the two unlawful 

possession of firearm counts from the other counts, the trial court alleviated any 

potential prejudice from Wright’s criminal history. The jury did not receive 

evidence of Wright’s criminal history until after it considered the other charges. 

For these reasons, the trial court did not abuse its discretion by determining that 

considerations of judicial economy outweighed any prejudice from joinder. 

We conclude that the trial court did not abuse its discretion by denying 

Wright’s motion to sever.

19

Ineffective Assistance of Counsel

Wright raises an ineffective assistance of counsel claim on the severance 

issue. He argues that counsel’s performance was deficient because he made 

only a “perfunctory and procedural” renewal of Wright’s motion to sever the J.B.

counts from the N.F. counts with no new substantive argument and failed to 

renew the motion later. We disagree. 

Ineffective assistance of counsel requires both deficient performance and 

prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. 

Ed. 2d 674 (1984). But we need not “address both components of the inquiry if 

 

19 In a statement of additional grounds for review, Wright cites three additional cases for 

the proposition that the trial court erred by denying his severance motion. See United States v. 

Lewis, 787 F.2d 1318 (9th Cir. 1986); United States v. Ragghianti, 527 F.2d 586 (9th Cir. 1975); 

United States v. Bronco, 597 F.2d 1300 (9th Cir. 1979). These cases are not binding on this 

court, and we decline to consider them. See Cantu v. City of Seattle, 51 Wn. App. 95, 99, 752 

P.2d 390 (1988); Home Ins. Co. of N.Y. v. N. Pac. Ry. Co., 18 Wn.2d 798, 808, 140 P.2d 507 

(1943).
No. 80348-4-I/26

26

the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at

697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of 

sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 

697. A defendant alleging ineffective assistance of counsel shows prejudice 

when there is a reasonable probability that but for counsel’s error, the result of 

the trial would have been different. State v. Hendrickson, 129 Wn.2d 61, 78, 917 

P.2d 563 (1996). 

(1) Strength of State’s Evidence on Each Count

Wright contends the evidence at trial was much stronger on the N.F.

charges because “some of [N.F.]’s testimony was corroborated by separate 

evidence,” while “the case involving [J.B.] hinged entirely on her credibility.” But 

testimony at trial later confirmed the corroborative evidence that the trial court 

relied on when considering Wright’s initial severance motion. And despite 

Wright’s attempt to impeach J.B., other evidence corroborated her testimony.

There is not a substantial likelihood that had his attorney renewed the

motion, the trial court would have concluded the evidence was so 

disproportionate as to favor severance. See In re Pers. Restraint of Lui, 188 

Wn.2d 522, 539, 397 P.3d 90 (2017) (In context of ineffective assistance, “ ‘[t]he 

likelihood of a different result must be substantial, not just conceivable.’ ”)

20

(quoting Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 178 L. Ed. 2d 

624 (2011)); cf. State v. MacDonald, 122 Wn. App. 804, 815, 95 P.3d 1248 

 

20 Alteration in original. 
No. 80348-4-I/27

27

(2004) (“When one case is remarkably stronger than the other, severance is 

proper.”).

(2) Cross Admissibility of Evidence

Wright contends that of the five similarities the court found “are properly 

regarded as probative of a common plan theory,” all but one “were undermined 

or contradicted by the testimony at trial.” He asserts, “In the end, the only 

remaining similarity between the two alleged offenses was that Mr. Wright may 

have taken property from both women.” But Wright failed to establish the trial 

court abused its discretion by considering similarities that he argues were 

“features of either (1) virtually every vaginal rape or (2) typical dating or sexual 

behavior.” And Wright is incorrect that testimony at trial undermined the 

remaining similarities to the point that the entire common plan or scheme 

analysis was no longer tenable. 

The first of the court’s challenged findings stated that both N.F. and J.B.

“were engaged in commercial sexual activity.” The testimony at trial supported 

this finding. J.B. admitted to working as an escort. While N.F. testified she was 

not advertising sexual services at the time, text messages admitted at trial

showed Wright asked whether N.F. was still posting advertisements, saying, “I 

might have a move for you,” and N.F. responded, “I’m not posted but I’m ready 

and available.” N.F. also acknowledged on cross-examination that although she 

was no longer posting as an escort when she met Wright, some of her older 

advertisements remained on the Internet. 
No. 80348-4-I/28

28

The testimony also supported the court’s finding that Wright “utilized a 

firearm that was a silver handgun as described by both women.” Wright points 

out that J.B. testified he merely displayed the gun to secure her cooperation, 

while N.F. testified Wright did not produce the gun until after the rape and then 

used it to strike her. But the relevant fact is that each woman described a silver 

gun that Wright used to secure her cooperation. Wright fails to explain how 

differences in the way he used the gun are material in the context of a common

scheme or plan analysis, as opposed to a modus operandi analysis. See

DeVincentis, 150 Wn.2d at 18 (explaining that modus operandi is used to prove 

identity, while a common scheme or plan is probative of whether the charged 

crime occurred). 

Wright also challenges the similarity that he “took a photo of both women 

or their family prior to leaving.” Wright asserts there was no testimony that he 

“took a photo of [N.F.] or her family.” But the evidence showed that Wright had a 

photograph of N.F.’s Washington State identification card on his cell phone. 

The final similarity that Wright claims supported a renewed motion to 

sever was the court’s finding that he “ceased contact and erased his social media 

presence after both incidents.” The State concedes that it did not present this 

evidence at trial. But we agree with the State that “this does not meaningfully 

detract from the other substantial similarities between the cases.” We also agree 

with the State that taken together, the other similarities were probative of a 

common scheme or plan in Wright’s selection of victims (women engaged in 

commercial sex work who might be less likely to report or be believed), his 
No. 80348-4-I/29

29

method of meeting them in person by promising they could earn money, using a 

gun to secure compliance, and threatening them and their families if they said 

anything. For these reasons, even if Wright had renewed his severance motion 

at the close of the evidence, it is not reasonably probable the trial court would 

have granted severance. As a result, Wright cannot show prejudice, and his

ineffective assistance of counsel claim fails.21

Confrontation

Wright contends the trial court violated his confrontation rights by 

excluding three categories of relevant impeachment testimony about J.B.’s Wells 

Fargo debit card, about whether she reported any income from City Live 

Barbershop on her tax return, and from the CVCP claims consultant. We

disagree.

“Both the federal and state constitutions protect a defendant’s right to 

confront an adverse witness.” State v. Lee, 188 Wn.2d 473, 486, 396 P.3d 316 

(2017); U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. “Confrontation” 

means “more than mere physical confrontation.” Lee, 188 Wn.2d at 487 (citing

Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974)). 

“ ‘The main and essential purpose of confrontation is to secure for the opponent 

 

21 Wright argues that because one judge heard his pretrial severance motion and a 

different judge presided over the trial, “it was particularly unreasonable” for his attorney not to 

make “new substantive argument.” He asserts that “the basis for [the pretrial judge]’s ruling 

denying severance had been substantially eroded [ ] by the close of the State’s” case in chief. 

But as discussed above, based on the evidence at trial, Wright fails to show that the presiding 

trial judge “likely would have granted a renewed motion to sever.”
No. 80348-4-I/30

30

the opportunity of cross-examination.’ ” Lee, 188 Wn.2d at 48722 (quoting Davis, 

415 U.S. at 315-16). 

That said, “the right to confront a witness through cross-examination is not 

absolute.” Lee, 188 Wn.2d at 487. “ ‘[T]he Confrontation Clause guarantees an 

opportunity for effective cross-examination, not cross-examination that is 

effective in whatever way, and to whatever extent, the defense might wish.’ ” 

Lee, 188 Wn.2d at 48723 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. 

Ct. 292, 88 L. Ed. 2d 15 (1985)). Accordingly, trial judges have wide latitude “ ‘to 

impose reasonable limits on such cross-examination based on concerns about, 

among other things, harassment, prejudice, confusion of the issues, the witness’ 

safety, or interrogation that is repetitive or only marginally relevant.’ ” Lee, 188 

Wn.2d at 487 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 

1431, 89 L. Ed. 2d 674 (1986)). 

We apply a three-part test to determine whether the trial court exceeded 

its discretion by limiting the scope of cross-examination: 

“First, the evidence must be of at least minimal relevance. Second, 

if relevant, the burden is on the State to show the evidence is so 

prejudicial as to disrupt the fairness of the fact-finding process at 

trial. Finally, the State’s interest to exclude prejudicial evidence 

must be balanced against the defendant’s need for the information 

sought, and only if the State’s interest outweighs the defendant’s 

need can otherwise relevant information be withheld.”

Lee, 188 Wn.2d at 488 (quoting State v. Darden, 145 Wn.2d 612, 622, 41 P.3d 

 

22 Internal quotation marks omitted.

23 Alteration in original. 
No. 80348-4-I/31

31

1189 (2002)). But we recognize that “[n]o state interest is sufficient to preclude 

highly probative evidence.” Lee, 188 Wn.2d at 488.

(1) Wells Fargo Testimony

Wright sought to attack J.B.’s “character for being untruthful” through 

evidence that the Wells Fargo fraud department investigated her bank account 

and revoked her debit card. Wright contends the trial court erred by not allowing 

him to elicit testimony on cross-examination that J.B. “had a history [of] making 

false stolen-debit-card claims,” the “exact same claim” she made against Wright. 

We disagree.

The Wells Fargo evidence was only minimally probative. The State did 

not charge Wright with robbing J.B., only N.F. And Wright did not offer the 

evidence to show bias or that J.B. had a motive to lie about whether Wright stole 

her wallet. See ER 404(b).24 Instead, he offered it only for a collateral purpose—

to invite the jury to infer that because J.B. lied about her debit card in the past, 

she also lied that Wright stole it. “Contradictory or impeaching testimony is 

collateral if it could not be shown in evidence for any purpose independent of 

contradiction.” State v. Alexander, 52 Wn. App. 897, 901-02, 765 P.2d 321 

(1988). And Wright points to no evidence suggesting that J.B. believed she 

would gain any benefit from reporting that Wright stole her debit card. As the 

 

24 ER 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
No. 80348-4-I/32

32

State points out, a detective later testified that J.B. denied any fraudulent or 

suspicious activity on her cards after Wright stole them. 

In contrast to the low probative value of the evidence, the potential for 

prejudice was high. Admitting the evidence solely to show J.B.’s “character for 

being untruthful” would invite the jury to infer improperly that she had a 

propensity to lie. This is exactly the kind of inference our evidence rules are 

designed to prevent—“specifically because of its potentially prejudicial effect.” 

Lee, 188 Wn.2d at 494 (citing ER 404(b)). 

Moreover, Wright could still attack J.B.’s credibility. Defense counsel 

elicited testimony that several days elapsed before J.B. told the detective that 

she “just realized” Wright stole a small black pouch containing her debit card. 

But J.B. also testified that during a defense interview, she told counsel that she 

saw Wright take her wallet on the day of the incident. 

Because the Wells Fargo evidence had minimal probative value and 

Wright had a chance to impeach J.B. through other testimony, the State’s 

interests in excluding the prejudicial evidence outweighed Wright’s need for it. 

(2) Income Reporting Testimony

Wright next contends the trial court violated his confrontation rights by 

barring him from asking J.B. whether she reported any income from City Live 

Barbershop on her federal tax return. He claimed that the evidence was 

“relevant and material to the Defense that Ms. J.B. is not a credible person.” We 

disagree.
No. 80348-4-I/33

33

As with the evidence on J.B.’s Wells Fargo debit card, this evidence was 

of minimal probative value. The uncontroverted evidence that J.B. received 

$15,000 in CVCP funds for income from a job that she did not have already 

established her bias or motive to fabricate. Whether she reported the fabricated 

income to the IRS was a collateral matter. And Wright had a full opportunity to 

attack J.B.’s credibility about her income because the trial court allowed Wright to 

call Wimberly, the barbershop owner, who testified that J.B. did not work at the 

barbershop.25 

The prejudicial nature of the evidence inviting the jury to infer improperly 

that J.B. had the propensity to lie outweighed its minimal probative value. 

(3) CVCP Claims Consultant Testimony

Finally, Wright contends the trial court violated his confrontation rights by 

precluding him from calling the CVCP claims consultant, “who would have 

testified for the defense about her office’s process for vetting claims.” But Wright 

fails to explain how barring the consultant’s testimony implicates his right to 

confront J.B. 

While barring a defense witness’ testimony may implicate Wright’s right to 

compulsory process or his due process right to present a defense, Wright does 

not argue that the trial court violated those rights. See State v. Hudlow, 99 

 

25 J.B. testified that Markell Patton was her supervisor at the barbershop. On appeal, 

Wright points out that when Wimberly took the stand, she admitted on cross-examination that she 

did not know how much money Patton earned as an independent contractor and so “did not know 

how much money [Patton] might have paid a receptionist.” But Wimberly’s testimony was still of 

meaningful impeachment value given that J.B. testified she was a “receptionist” at City Live 

Barbershop and that her supervisor was the “manager, Markell Patton”; whereas Wimberly 

testified that the barbershop did not employ any receptionists, that J.B. never worked for her in 

any capacity, and that Patton was a barber who merely rented a chair weekly. 
No. 80348-4-I/34

34

Wn.2d 1, 14-15, 659 P.2d 514 (1983) (The Sixth Amendment and article I, § 22 

“grant criminal defendants two separate rights: (1) the right to present testimony 

in one’s defense, and (2) the right to confront and cross-examine adverse 

witnesses.”);26 United States v. Jinwright, 683 F.3d 471, 482-83 (4th Cir. 2012) 

(“A defendant’s Fifth Amendment [to the United States Constitution] right to due 

process guarantees ‘the right to a fair opportunity to defend against the State’s 

accusations,’ which, under the Sixth Amendment, includes the ‘rights to confront 

and cross-examine witnesses and to call witnesses in one’s own behalf.’ ”)

27

(quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 

2d 297 (1973)). Wright does not show that precluding testimony from the CVCP 

claims consultant implicates his confrontation rights.

28

Prosecutorial Misconduct

Wright argues the prosecutor committed reversible misconduct during 

closing argument by improperly vouching for J.B., arguing adverse inferences 

from Wright’s right not to testify, and abandoning its common scheme or plan 

theory. We disagree.

Prosecutorial misconduct may deprive a defendant of his guarantee to a 

fair trial under the Sixth and Fourteenth Amendments and article I, section 22. In 

re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). 

 

26 (Emphasis added.) We have observed that “[c]ourts and litigants often refer to these 

rights, collectively, as the ‘right to present a defense,’ although this phrase does not appear in our 

state or federal constitutions.” State v. Bedada, 13 Wn. App. 2d 185, 193 n.2, 463 P.3d 125 

(2020).

27 Emphasis added.

28 As with the debit card and income reporting testimony, even if Wright’s confrontation 

rights were at issue, the CVCP claims consultant’s testimony would go to only a collateral 

matter—whether J.B. made misrepresentations on her CVCP application. 
No. 80348-4-I/35

35

To prevail on a claim of prosecutorial misconduct, the defendant must establish 

that the prosecutor’s conduct was both improper and prejudicial in the context of 

the entire record and the circumstances at trial. State v. Thorgerson, 172 Wn.2d 

438, 442, 258 P.3d 43 (2011); State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 

126 (2008)). “We review a prosecutor’s comments during closing argument in 

the context of the total argument, the issues in the case, the evidence addressed 

in the argument, and the jury instructions.” State v. Boehning, 127 Wn. App. 511, 

519, 111 P.3d 899 (2005).

If the defendant establishes that a prosecutor’s statements are improper, 

“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). If the 

defendant objected at trial, he “must show that the prosecutor’s misconduct 

resulted in prejudice that had a substantial likelihood of affecting the jury’s 

verdict.” Emery, 174 Wn.2d at 760. If the defendant did not object at trial, he “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. 

(1) Improper Vouching

Wright asserts the prosecutor improperly told the jury that J.B. “falsified 

her CVC[P] claim only to hide her history of sex work,” that “her decision to testify 

was brave because she might face prosecution for the falsified claim,” and that “if 

she had fabricated the allegations against Mr. Wright she would not have 

testified” because CVCP “did not require it.” Wright argues no testimony 
No. 80348-4-I/36

36

supported any of these claims, but “they painted a sympathetic picture of a 

woman, struggling to support her family, who would seek justice at great 

personal risk.” 

Although it is improper for a prosecutor to vouch for a witness’ credibility, 

“a prosecutor has wide latitude in closing argument to draw reasonable 

inferences from the evidence and may freely comment on witness credibility 

based on the evidence.” State v. Lewis, 156 Wn. App. 230, 240, 233 P.3d 891 

(2010). “Thus, closing argument does not constitute improper vouching unless it 

is clear that the prosecutor is not arguing an inference from the evidence, but 

instead is expressing a personal opinion about credibility.” Lewis, 156 Wn. App. 

at 240.

Wright asserts several specific examples of improper vouching. First, 

after conceding that J.B. lied on her CVCP application, the prosecutor asked the 

jury:

Could it have been, because she didn’t want to list prostitute as the 

nature of her employment. Was it easier to put down receptionist? 

Was it an opportunity for money for her family, an opportunity that 

literally [m]ailed itself to her door, five months after she was raped? 

Second, the prosecutor argued:

Despite obtaining that money from [CVCP], [J.B.] still walked into 

this courtroom. She not only testified about what this man did to 

her, but she also answered the questions about her participation in 

that document, and she did so freely. She told you full well, she 

doesn’t have [an] immunity agreement. She came to this 

courtroom knowing full well, she herself may have to see a 

courtroom just like this, because of what she did. 

And third, the prosecutor argued, “Heck, think about it to[o] — if all [J.B.] 

wanted was that [CVCP] money, why the heck did she show up here? You 
No. 80348-4-I/37

37

heard she was paid out in January, so why show up? That program literally 

didn’t require that she testify.” 

None of these arguments rose to the level of the prosecutor expressing an

opinion about J.B.’s credibility. Rather, the prosecutor, who was on notice that 

defense counsel intended to use J.B.’s false CVCP claim to impeach her 

credibility, properly used his closing argument to engage in anticipatory witness 

rehabilitation. 

And with one exception, each of the prosecutor’s arguments constituted a 

reasonable inference from the evidence. J.B. testified that she was a single 

mother and that she did not want to work as an escort, but did so because she 

was “behind on bills” and “just got kind of desperate.” She testified later that she 

originally did not tell officers the truth about how she met Wright because she 

“was embarrassed and ashamed” and did not want the police to judge her for 

inviting someone she did not know into her home. And J.B. testified that the 

prosecutor “never” offered her immunity in exchange for her testimony. 

Furthermore, Wimberly testified that she never employed J.B. in any capacity. 

Based on this testimony, it was not improper for the prosecutor to concede that 

J.B. lied on her CVCP application but argue a reasonable inference that she did 

so because she saw CVCP as a chance to support her family without disclosing

her actual occupation. 

It also was not improper for the prosecutor to argue the reasonable 

inference that J.B. risked the consequences of lying by testifying without 

immunity. This is particularly so given the context in which the prosecutor made 
No. 80348-4-I/38

38

his argument—while discussing the instruction that the jury could consider “any 

personal interest that the witness might have in the outcome or the issues” when 

considering a witness’ testimony. The prosecutor made reasonable inferences in 

arguing that testifying went against J.B.’s personal interests. This was not 

misconduct. 

That said, the prosecutor improperly argued a fact not in evidence when 

he stated that CVCP did not require J.B. to testify. There was no testimony in 

this regard. But we conclude that given the prosecutor’s argument as a whole, 

this isolated statement did not have a substantial likelihood of affecting the jury’s 

verdict. 

(2) Arguing Adverse Inferences from Exercising Right Not To Testify

Wright contends the prosecutor committed misconduct when he “told the 

jury that Mr. Wright’s not-guilty plea was a ‘lie[ ].’ ”

29

 He asserts that after 

acknowledging J.B. falsified her CVCP application, “the prosecutor contrasted 

that lie with Mr. Wright’s not-guilty plea, arguing that the plea was more 

dishonest.” “A prosecutor violates a defendant’s Fifth Amendment rights if the 

prosecutor makes a statement ‘of such character that the jury would naturally 

and necessarily accept it as a comment on the defendant’s failure to testify.’ ” 

State v. Fiallo-Lopez, 78 Wn. App. 717, 728, 899 P.2d 1294 (1995)30 (quoting 

State v. Ramirez, 49 Wn. App. 332, 336, 742 P.2d 726 (1987)). 

 

29 Alteration in original. 

30 Internal quotation marks omitted.
No. 80348-4-I/39

39

According to Wright, the prosecutor urged the jury to make an adverse 

inference from Wright’s exercise of his constitutional right not to testify. He 

points to the following argument from the prosecutor: 

It’s not the same folks, because what [J.B.] lied about, compare that 

to what he lied. [J.B.] lied about where she was working, and how 

much she got paid to a program. Not to a detective, not to you and 

the court, she — but what he lied about was essential to this case.

We reject Wright’s contention because it takes the prosecutor’s argument 

out of context. The prosecutor made his argument while discussing Wright’s 

recorded statement to a detective first about N.F., then about both victims, which 

the trial court admitted into evidence. The prosecutor argued:

[Wright’s] statement [to the detective] is dripping with self-serving 

statements. It actually starts out with a flat lie. I wasn’t with a 

female on Father’s Day, I was with my family. Then of course, he 

has to back pedal a little bit, well I didn’t know it was someone I 

paid her for sex. I talked about getting a job for [N.F.]. I certainly 

didn’t hurt her. I didn’t pistol whip her, cause if I were to pistol whip 

her, she wouldn’t [have] been able to walk away.

Then of course he lies, I don’t mess with guns. And, of 

course . . . the gun [is] recovered in his house, matching the 

description given by these two women before they found the 

gun[.] . . .

. . . .

Tedgy Wright’s statement [to the detective] is one that 

should not be credible for multiple reasons, personal interests is 

just one. But, maybe you’re still saying, but you had lied, isn’t that 

[the] same, a lie is a lie, is a lie? It’s not the same folks, because 

what [J.B.] lied about, compare that to what he lied. [J.B.] lied 

about where she was working, and how much she got paid to a 

program. Not to a detective, not to you and the court, she — but 

what he lied about was essential to this case. Did you have a gun?

. . . Did you . . . rape [N.F.]? Did you assault her? Did you rob her?

In short, the prosecutor argued, based on Wright’s admitted statement, 

that some of the things he said to the detective were not true. The prosecutor did 

not suggest that Wright’s plea of not guilty was a lie, and Wright fails to explain 
No. 80348-4-I/40

40

how the jury would “ ‘naturally and necessarily’ ” accept anything in the 

prosecutor’s argument as a comment on Wright’s decision not to testify. FialloLopez, 78 Wn. App. at 72831 (quoting Ramirez, 49 Wn. App. at 336). Wright fails 

to establish that the prosecutor’s argument constituted misconduct. 

(3) Abandoned Common Plan or Scheme Theory

Wright contends the prosecutor committed misconduct “when he suddenly 

abandoned the State’s ‘common plan or scheme’ theory and argued that Mr. 

Wright ‘snap[ped].’ ”

32

 He points to the following argument from the prosecutor, 

who was discussing the elements the jury must consider for the rape charges:

One of the elements that’s not on here, and the State did not have 

to prove to you beyond a reasonable doubt, is when he met up with 

both women, was he trying to rape them? Did he go in knowing 

that he was going to rob them, unclear? The evidence doesn’t 

show that answer beyond a reasonable doubt, that the State 

doesn’t have to prove that. Maybe he really did just get frustrated, 

when a [prostitute] was saying no to him. Maybe that’s what made 

him snap. Because the only questions you need to answer, the 

only questions the State is required to prove to you beyond a 

reasonable doubt are those elements we just went over. 

Wright contends the prosecutor’s argument constituted “an invitation to 

convict Mr. Wright because he is the kind of person who rapes, robs, and 

assaults.” He asks us to equate the prosecutor’s argument with “deliberately 

violating a pre-trial ruling in limine.” But Wright does not point to any ruling in 

limine that the prosecutor’s closing statement violated.

Wright also argues the prosecutor’s argument “was particularly prejudicial 

in light of the jury instructions, none of which limited the cumulation of evidence 

 

31 Internal quotation marks omitted.

32 Alteration in original. 
No. 80348-4-I/41

41

to the issue of a common plan.” But he cites no authority for the proposition that 

the prosecutor must tailor his argument around a limiting instruction that was not 

proposed or given. 

Furthermore, the jury instructions directed the jury to consider “each count 

separately.” They also directed the jury that it could convict only if it found each 

element of each crime satisfied beyond a reasonable doubt. To this end, the 

prosecutor made his argument just after he walked the jury through the to-convict 

instructions for the charged crimes. The prosecutor then correctly pointed out 

that none of the to-convict instructions required the State to prove why Wright 

raped each woman or whether he planned to do so when he first met them. The 

jury could consider similarities between the two incidents as probative to whether 

each crime was an individual manifestation of a common scheme or plan, but the 

prosecutor properly argued that a common scheme or plan was not an element 

of either crime. 

For these reasons, we reject Wright’s argument that the prosecutor’s 

closing statement constituted misconduct. 

Booking Photographs

Wright contends the trial court erred by admitting two photomontages that 

contained his booking photograph. Wright does not argue that the 

photomontages were not relevant. See ER 402. Instead, he asserts his 

portrayal in jail clothes constituted evidence of a prior crime or conviction, was 

inherently prejudicial, and outweighed the minimal probative value of the photos. 

We disagree.
No. 80348-4-I/42

42

The court may exclude even relevant evidence “if its probative value is 

substantially outweighed by the danger of unfair prejudice.” ER 403. “A trial 

judge has wide discretion in balancing the probative value of evidence against its 

potentially prejudicial impact.” State v. Rivers, 129 Wn.2d 697, 710, 921 P.2d 

495 (1996). 

Wright relies on Rivers to support his assertions. In that case, our 

Supreme Court held that admission of a booking photograph was not unduly 

prejudicial. Rivers, 129 Wn.2d at 711-12. The court held:

Because Defendant Rivers raised the issue of identity during 

opening statements, the photograph of the Defendant on the day of 

the crime was relevant as it tended to show that the victim’s 

description to police matched the man arrested shortly after the 

robbery. The admission of the photo was not prejudicial because 

the jury knew the Defendant was arrested for the crime on which he 

was being tried, and the jury would reasonably have been aware 

that a booking procedure, including photographing the Defendant, 

would have existed. 

Rivers, 129 Wn.2d at 712. 

In contrast to Rivers, Wright claims his “[i]dentity was not in dispute, since 

Mr. Wright admitted to sexual contact with both accusers and argued only that it 

was consensual.” But his citation to the record to support that assertion contains 

no such admission. And the parties did not stipulate as to identity. The State 

bore the burden to prove identity beyond a reasonable doubt. Because Wright 

denied guilt, the State had the right to present “ample evidence” proving identity. 

State v. Rahier, 37 Wn. App. 571, 574, 681 P.2d 1299 (1984). 
No. 80348-4-I/43

43

Additionally, “[a] booking photograph is not necessarily prejudicial.” State 

v. McCreven, 170 Wn. App. 444, 485, 284 P.3d 793 (2012). Here, the 

photomontages showed only each pictured person’s head and upper shoulders. 

Although it is apparent in one photomontage that each person is wearing the 

same orange shirt,33 the pictures used did not bear other identifiable aspects of

“mug shots” that would likely invite an inference of a past arrest. See State v. 

Tate, 74 Wn.2d 261, 267, 444 P.2d 150 (1968) (admission of mug shot not 

unfairly prejudicial where the prosecutor removed identifying numbers from the 

photos and never used the words “mug shot” in the presence of the jury). Nor 

does Wright argue that any witness testified that the photomontages were 

assembled using booking photographs. Under these circumstances, we cannot 

say the trial court abused its discretion by admitting the photomontages. 

Cumulative Error

Wright argues that he is entitled to a new trial under the cumulative error 

doctrine. Application of the cumulative error doctrine “is limited to instances 

when there have been several trial errors that standing alone may not be 

sufficient to justify reversal but when combined may deny a defendant a fair trial.” 

State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Here, the only error

was the prosecutor’s isolated statement that CVCP did not require J.B. to testify, 

and we concluded that statement did not have a substantial likelihood of affecting 

the jury’s verdict. As a result, the cumulative error doctrine does not apply. 

 

33 The other photomontage was black and white. 
No. 80348-4-I/44

44

We affirm Wright’s convictions.

I CONCUR:
No. 80348-4-I/1

1

COBURN, J. (concurring in part and dissenting in part) — I respectfully 

dissent because the majority’s decision today effectively establishes a higher 

threshold defendants must meet to trigger the right to presence at trial than what 

the constitution demands. Wright was denied his constitutional right to be 

present during a critical stage. Thus, I would hold that reversal is required 

because the State fails to show that Wright’s absence was harmless beyond a 

reasonable doubt. I concur with the majority’s resolution of the remaining issues. 

After having the opportunity to deliberate for multiple days, the jury

inquired, “If we are unable to reach a verdict on a count, what happens?” The 

majority holds that this inquiry did not implicate Wright’s right to be present while 

the court considered its response because the jury did not declare it was, in fact, 

deadlocked. While a communication indicating a jury deadlock is certainly

sufficient to trigger a defendant’s right to be present, it is not necessary. 

Wright contends the trial court violated his rights under the Sixth and 

Fourteenth Amendments to the United States Constitution and article I, section 

22 of the Washington State Constitution by consulting with counsel about the jury 

inquiry while Wright was absent. Wright does not separately analyze his federal 

and state constitutional claims. But I am nonetheless obliged to examine those 

claims separately “because [our Supreme Court] has previously interpreted the 

right to ‘appear and defend’ [under our State constitution] independently of 

federal due process jurisprudence.’ ” State v. Irby, 170 Wn.2d 874, 885, 246 

P.3d 796 (2011). I begin my analysis with Wright’s federal constitutional claim.

“Under the Sixth and Fourteenth Amendments [to the United States 
No. 80348-4-I/2

2

Constitution], a criminal defendant has the right to attend all critical stages of his 

trial.” State v. Pruitt, 145 Wn. App. 784, 798, 187 P.3d 326 (2008). A “critical 

stage” is a stage “ ‘for which [the defendant’s] presence has a relation, 

reasonably substantial, to the ful[l]ness of his opportunity to defend against the 

charge.’ ” Pruitt, 145 Wn. App. at 798 (internal quotation marks omitted, second

alteration in original) (quoting State v. Rice, 110 Wn.2d 577, 616, 757 P.2d 889 

(1988)). The right extends even to those situations when the defendant is not 

actually confronting witnesses or evidence against him. Pruitt, 145 Wn. App. at 

798. 

The right to be present is not unlimited. For example, the defendant has 

no right to be present “ ‘when presence would be useless, or the benefit but a 

shadow.’ ” Pruitt, 145 Wn. App. at 798 (quoting Kentucky v. Stincer, 482 U.S. 

730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987)). “But an accused ‘is 

guaranteed the right to be present at any stage of the criminal proceeding that is 

critical to its outcome if his presence would contribute to the fairness of the 

procedure.’ ” Pruitt, 145 Wn. App. at 798 (quoting Stincer, 482 U.S. at 745). 

Indeed, “ ‘[t]he presence of a defendant is a condition of due process to the 

extent that a fair and just hearing would be thwarted by his absence.’ ” Pruitt, 

145 Wn. App. at 798 (internal quotation marks omitted) (quoting State v. Wilson, 

141 Wn. App. 597, 604, 171 P.3d 501 (2007)).

In State v. Burdette, we considered whether a conference about a jury 

inquiry was a critical stage implicating the defendant’s right to be present under 

the federal constitution. There, less than an hour after the court provided the jury 
No. 80348-4-I/3

3

with a corrected instruction as to one of the charges, the jury submitted a 

communication stating, “ ‘Jury is deadlocked over several issues relating to the 

defendant’s intent.’ ” 178 Wn. App. 183, 195-96, 313 P.3d 1235 (2013). On 

appeal, we recognized that despite the inquiry’s use of the term “deadlocked,” 

the jury’s communication “was not that it was hopelessly deadlocked on the case 

or any of its aspects, but rather was its first communication that it was having 

trouble agreeing.” Burdette, 178 Wn. App. at 197. We also recognized the jury’s 

communication “was not a direct request for clarification of the jury instructions, 

but rather appears to be a request for instructions about how to proceed when 

the jury feels it is deadlocked on a specific issue.” Burdette, 178 Wn. App. at 195

(emphasis added). The court thus distinguished the jury communication from 

one involving “only a purely legal question” and held the trial court violated the 

defendant’s right to be present by consulting with counsel about the jury 

communication in the defendant’s absence. Burdette, 178 Wn. App. at 200; cf.

State v. Sublett, 156 Wn. App. 160, 183, 231 P.3d 231 (2010) (holding that inchambers conference involving “only the purely legal issue of how to respond to 

the jury’s request for a clarification in one of the trial court’s instructions” was not 

a critical stage of trial), aff’d on other grounds, 176 Wn.2d 58 (2012). The 

Burdette court explained,

[T]he essence of the . . . jury communication was an inquiry as to 

how the jury should proceed when it felt deadlocked on the 

defendant’s intent. To a defendant, all may pivot on how long the 

court will require a deadlocked jury to continue deliberations before 

declaring a mistrial. In some situations, a defendant may desire a 

quick mistrial and in others more deliberations in hope of an 

acquittal. Whatever the case, much is at stake at this stage and a 

defendant may reasonably wish to actively participate by making 
No. 80348-4-I/4

4

his opinion known to his lawyer or, if allowed, to the judge. For 

these reasons, the defendant’s presence at this stage has a direct 

relation to the fullness of his opportunity to defendant against the 

charge. Therefore, . . . [the defendant] had a right under the . . . 

federal constitution[ ] to be present when the response to the . . . 

communication from the jury was discussed.

Burdette, 178 Wn. App. at 201 (emphasis added).

Here, as in Burdette, the jury indicated that it was having trouble agreeing

even though it did not use the term “deadlock.” Cf. State v. Smith, 320 N.C. 404, 

422, 358 S.E.2d 329 (1987) (observing, with regard to jury’s inquiry about what 

would happen if its decision was not unanimous, “The jury here obviously was 

not unanimous when it posed the question; otherwise, it would not have inquired 

as to the effect of its failure to attain unanimity.”). Furthermore, the jury 

submitted its inquiry more than four and a half days after it received the case and 

after one and a half days of active deliberation.

1 The jury was not just inquiring 

out of procedural curiosity. Thus, like the jury inquiry in Burdette, the inquiry here 

was not a purely legal inquiry but rather “a request for instructions about how to 

proceed” when the jury feels it cannot come to an agreement. Burdette, 178 Wn. 

App. at 195. And as the Burdette court observed, “much is at stake at this stage” 

in terms of the defendant’s opportunity to weigh in on the matter. 178 Wn. App. at 

201. Particularly relevant here is the determination of what, if any, jury 

instructions should be emphasized in response to the inquiry. 178 Wn. App. at 

201. 

 

1 The jury commenced deliberations the afternoon of Thursday, April 11, 

2019. The record suggests the jury did not deliberate on Friday, April 12. 

However, the record reflects the jury was in deliberations the following Monday. 

The jury inquiry was dated Tuesday, April 16, 2019, at 11:06 a.m.
No. 80348-4-I/5

5

The majority concludes that the stakes are only high enough to trigger the 

right to presence if the jury actually indicates it is deadlocked. But the stakes are 

equally high when the jury indicates it is having trouble agreeing. This is 

because, just as is the case when the jury indicates a deadlock, the court’s 

response could have the effect of either nudging the jury toward a verdict or 

increasing the chances of a mistrial. The majority’s requirement that the jury use 

magic language to affirmatively indicate its disagreement—even when it is clear 

from the context the jury is having trouble agreeing—effectively sets a higher 

threshold to trigger the defendant’s right to presence than what the constitution 

demands, i.e., that the defendant’s presence have a reasonably substantial 

relation to the fullness of his opportunity to defend. 

Because the jury’s inquiry was not an inquiry involving only a purely legal 

question, the fact that Wright’s attorney was present is irrelevant.

2

 Just as in jury 

selection, where the defendant’s right to be present is well recognized, a 

defendant may, despite being a non-lawyer, actively contribute to a conference 

about a jury’s inability to agree by providing input to his counsel. See State v. 

Bennett, 168 Wn. App. 197, 203, 274 P.2d 1224 (2012) (recognizing that the 

defendant’s right to be present encompasses jury selection where the defendant 

may actively contribute to his own defense by offering input to counsel). Indeed, 

it is not difficult to imagine that had Wright been present for the discussion in this 

 

2 Perhaps recognizing this, the Federal Rules of Criminal Procedure, 

which require the defendant’s presence at every trial stage, make an exception 

for conferences on legal questions, but not for conferences on non-legal 

questions. Fed. R. Crim. P. 43(a), (b)(3). 
No. 80348-4-I/6

6

case, he would have discussed the jury’s inquiry with his attorney and could have 

advocated for a mistrial or at least questioned why the court was elevating some 

instructions over others. 

For the foregoing reasons, I would hold that the conference regarding the 

jury’s inquiry was a critical stage of trial, and the trial court violated Wright’s

federal constitutional right to be present by consulting with counsel in Wright’s 

absence.

I would also hold that the court violated Wright’s state constitutional right 

to be present. “Unlike the United States Constitution, article I, section 22 of the 

Washington Constitution provides an explicit guaranty of the right to be present: 

‘In criminal prosecutions the accused shall have the right to appear and defend in 

person, or by counsel.’ ” Irby, 170 Wn.2d at 884-85 (quoting CONST. art. 1, § 22). 

Our Supreme Court has long recognized that this right applies “at every stage of 

the trial when [the defendant’s] substantial rights may be affected.” State v. 

Shutzler, 82 Wash. 365, 367, 144 P. 284 (1914), overruled on other grounds. In 

other words, the right to be present under our state constitution does not turn on 

what the defendant could contribute by his presence but on the effect of the 

proceeding on the defendant’s substantial rights. 

Here, the conference at which the court and counsel discussed the jury’s 

inquiry was one at which Wright’s substantial rights could be affected because, 

as discussed, the response to the inquiry could have the effect of either nudging 

the jury toward a verdict or increasing the chances of a mistrial. Accordingly, 

Wright was entitled to be present during that conference, and the trial court 
No. 80348-4-I/7

7

violated Wright’s right to presence under article I, section 22 by conducting it in 

his absence. 

Because I would hold the trial court erred by violating Wright’s right to be 

present, I next consider whether that error was harmless. See Burdette, 178 Wn. 

App. at 201 (“A violation of the right to be present at trial, whether anchored in 

due process or article I, section 22 of our state constitution, is subject to 

harmless error analysis.”). “ ‘[T]he burden of proving harmlessness is on the 

State and it must do so beyond a reasonable doubt.’ ” Irby, 170 Wn.2d at 886. 

The State points out that even though the Burdette court found a violation 

of the defendant’s right to be present, it ultimately concluded the error was 

harmless because “the facts show it very unlikely that [the defendant]’s absence 

had any effect on the judge’s response to the . . . jury communication.” 178 Wn. 

App. at 201-02. The State argues that “[t]he same is true here.” 

I disagree. In Burdette, we concluded the defendant’s absence was 

unlikely to have had any effect because (1) the jury’s inquiry “could have come 

only after short deliberations,” so the judge’s response directing the jury to 

continue deliberating seemed “nearly inevitable” and (2) the defendant did not 

argue “what he would have said or done had he been present when the . . . jury 

communication was discussed.” 178 Wn. App. at 202. Here, by contrast, the 

jury had been deliberating for more than a day and a half. Accordingly, this is not 

a case where it was “nearly inevitable” that the court would respond in a 

particular way to the jury’s communication indicating it was having trouble 

agreeing as to “a count.” 
No. 80348-4-I/8

8

Furthermore, I agree with Wright that the trial court’s response to the jury 

likely had the effect of emphasizing the need for a verdict. Specifically, the 

court’s response did not, as the State asserts, merely direct the jury to refer to its 

instructions. Rather, the trial court responded, “See your instructions, particularly 

instructions #10 and #28.” (Emphasis added.) Instruction 10 stated, “A separate 

crime is charged in each count. You must decide each count separately. Your 

verdict on one count should not control your verdict on any other count.” 

(Emphasis added.) Instruction 28 concluded by stating:

You must fill in the blank provided in each verdict form the 

words “not guilty” or the word “guilty,” according to the decision you 

reach.

Because this is a criminal case, each of you must agree for 

you to return a verdict. When all of you have so agreed, fill in the 

verdict forms to express your decision. The presiding juror must 

sign the verdict forms and notify the bailiff. The bailiff will bring you 

into court to declare your verdict.

(Emphasis added.) 

As Wright correctly points out, both of these instructions presume the jury 

will reach a verdict. By emphasizing these instructions, the trial court 

deemphasized other instructions, including Instruction 2, which directed the 

jurors: “You should not . . . surrender your honest belief about the value or 

significance of evidence solely because of the opinions of your fellow jurors. Nor 

should you change your mind just for the purpose of reaching a verdict.” 

(Emphasis added.) In other words, even assuming a neutral response would 

have constituted harmless error, the court’s response here was not neutral. Cf.

Jasper, 158 Wn. App. at 543 (holding that the court’s error in responding to jury 

inquiry without consulting counsel was harmless because “[t]he trial court’s 
No. 80348-4-I/9

9

response was neutral, did not convey any affirmative information, and did not 

communicate to the jury any information that was harmful to” the defendant); 

State v. Langdon, 42 Wn. App. 715, 717-18, 713 P.2d 120 (1986) (a court’s 

instruction is neutral when it “simply refer[s] the jury back to the previous 

instructions”). Instead, the trial court emphasized instructions that could have 

had the effect of nudging the jury toward a verdict.3 The jury returned guilty 

verdicts less than two and a half hours after receiving the trial court’s response, 

including, presumably, the lunch hour.4 

The State asserts that “Wright does not explain how any input from him 

would have likely changed the proposed response.” But under a constitutional 

harmless error standard, it is the State’s burden to show that Wright’s input would 

not likely have changed the outcome and not the other way around.5

Furthermore, if Wright had been present, he likely would have, in discussing the 

jury’s inquiry with his attorney, asked what could be done to try to ensure that 

jurors leaning toward acquittal would not give in to pressure from other jurors so 

 

3

In State v. Besabe, we held that, even assuming the trial court failed to 

consult counsel before answering a jury inquiry about a potential contradiction 

between two instructions, that error was harmless where the court responded, 

“ ‘Please follow all of the instructions, including instruction 30.’ ” 166 Wn. App. 

872, 882-83, 271 P.3d 387 (2012) (emphasis added). But a response directing 

the jury to “follow all” instructions, “including” certain instructions, is 

distinguishable from a response directing the jury to “[s]ee your instructions, 

particularly instructions #10 and #28.” (Emphasis added.) .

4 The trial court responded to the jury at 11:37 a.m. on April 16, 2019, and 

the jury was summoned to the courtroom at 2:06 p.m. that same day to read its 

verdict.

5 The State does not argue that there was overwhelming untainted 

evidence of Wright’s guilt. See State v. Barry, 183 Wn.2d 297, 303, 352 P.3d 

161 (2015) (constitutional harmless error standard “can be met if there is 

overwhelming evidence of the defendant’s guilt that is not tainted by the error”). 
No. 80348-4-I/10

10

as to increase the likelihood of a mistrial. This discussion would naturally have 

prompted defense counsel to request that Instruction 2 be included in the court’s 

response to the jury, or at the very least, that the response simply refer to all of 

the instructions without emphasizing any particular ones.

Finally, the State, which merely asserts incorrectly that “the trial court 

responded, as trial courts usually do, that the jury should refer to its instructions,” 

fails to persuade me that had the court’s response been different, the jury would 

nonetheless have reached a verdict beyond a reasonable doubt. Cf. State v. 

A.M., 194 Wn.2d 33, 41, 448 P.3d 35 (2019) (“A constitutional error is harmless if 

‘it appears beyond a reasonable doubt that the error complained of did not 

contribute to the verdict obtained.’ ” (internal quotation marks omitted) (quoting 

State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002))). Put another way, I 

cannot assume, as the State appears to, that had Wright been present, “nothing 

would have changed—not defense counsel’s arguments, the court’s response, or 

the outcome in this . . . case.” See Roberts v. United States, 213 A.3d 593, 598 

(D.C. Ct. App. 2019) (rejecting the government’s argument that constitutional 

error was harmless because there was no evidence that defense counsel’s 

arguments would have changed had the error not occurred). Thus, the State 

fails to establish that the trial court’s error was harmless. Cf. Smith, 320 N.C. at 

422 (reversing where the court responded to the jury’s inquiry about what would 

happen if it was unable to reach a unanimous verdict “by reiterating the need for 

the jurors to confer together without violating individual judgments and again 

informing the jury that its decision must be unanimous,” explaining that this 
No. 80348-4-I/11

11

response, in the context of the jury’s inquiry, “probably resulted in coerced 

unanimity” and “probably conveyed the erroneous impression that a unanimous 

decision . . . was required”).

I would hold that the trial court violated Wright’s right to be present under 

both the federal and state constitutions by consulting with counsel about the jury 

inquiry in Wright’s absence, and the State does not meet its burden to establish 

that the error was not harmless beyond a reasonable doubt. I would reverse on 

this basis, and thus, I respectfully dissent.