IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

STATE OF WASHINGTON,

Respondent,

v.

RICHARD ANTHONY VEDDER,

Appellant.

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No. 36979-0-III

UNPUBLISHED OPINION

KORSMO, J.P.T.1 — Richard Vedder appeals his conviction for forgery. He 

contends that the prosecutor committed reversible misconduct, that his attorney was 

ineffective, and that there was insufficient evidence to prove all of the essential elements 

of forgery. We affirm.

FACTS

The relevant facts can be briefly summarized. Mr. Vedder attempted to cash a 

forged check for $673.54 at a Money Tree in Kennewick. It was rejected by the clerk, 

who noticed several irregularities and called the police after Mr. Vedder rushed out of the 

building. The check was nominally from the Franklin County Prisoners’ Fund. Mr. 

 

1

Judge Kevin M. Korsmo was a member of the Court of Appeals at the time 

argument was held on this matter. He is now serving as a judge pro tempore of the court 

pursuant to RCW 2.06.150.

FILED

FEBRUARY 4, 2021

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36979-0-III

State v. Vedder

2

Vedder had previously received a valid check from the Prisoners’ Fund for $.41 years 

earlier. That check was never cashed and was entered into evidence. Mr. Vedder 

testified in his own defense that he received the false check in the mail in a large 

envelope. No envelope was offered into evidence. 

During closing arguments, the prosecutor stated that “reasonable doubt is a doubt 

for which a reason exists. And I know that is sort of circular, but it’s something that there 

has to actually be a reasonable thing.” The prosecutor also contrasted the defendant’s 

ability to produce a $.41 check from years earlier with his inability to produce the large 

envelope in which the defendant testified the false check was mailed. The defense did 

not object to these arguments.

The jury found the defendant guilty of forgery. Mr. Vedder appealed to this court. 

A panel considered his case without hearing oral argument.

ANALYSIS

The defendant argues the prosecutor used an improper “fill-in-the-blank” 

argument in closing argument, that his attorney at trial was ineffective for not objecting 

to that argument, and that there was not sufficient evidence to prove the knowledge 

element of forgery. We address the latter argument first, and then consider the remaining 

challenges as one.
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Sufficiency of the Evidence

Sufficient evidence supports the defendant’s conviction. When evaluating 

whether sufficient evidence supports a conviction, the reviewing court reviews the 

evidence in the light most favorable to the state. State v. Homan, 181 Wn.2d 102, 105, 

330 P.3d 182 (2014). The court admits the truth of the State and against the defendant. 

Id. at 106. Appellate courts defer to the trier of facts on issues of conflicting testimony, 

witness credibility, and the persuasiveness of evidence. State v. Thomas, 150 Wn.2d 821, 

874-875, 83 P.3d 970 (2004). The court then asks whether “any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.” 

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

A person is guilty of forgery only if he knows the written instrument is forged. 

RCW 9A.60.020(1)(b). In a criminal case, “possession alone is not sufficient to prove 

guilty knowledge,” though “possession together with slight corroborating evidence of 

knowledge may be sufficient.” State v. Scoby, 117 Wn.2d 55, 61, 810 P.2d 1358 (1991). 

Such corroborating evidence has included “the giving of a false explanation or one that is 

improbable or is difficult to verify.” State v. Ladely, 82 Wn.2d 172, 175, 509 P.2d 658 

(1973).

In this case, Mr. Vedder testified that he received the check in the mail—but also 

that he was familiar with the payor, had received a valid check from them before, and that 

he was not expecting any further checks from them. The bank teller testified that Vedder 
No. 36979-0-III

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became agitated when she began more thoroughly investigating the check, and that there 

were several red flags that would have caused an untrained eye to question the check’s 

authenticity—including the lack of endorsement and the misspelled name of the payee. 

Drawing all inferences in favor of the State, there is sufficient evidence for a rational 

juror to find that the defendant knew the check was forged.

Prosecutorial Misconduct

The prosecutor did not commit misconduct. With a timely objection, reversible 

misconduct occurs when the defendant shows the prosecutor’s behavior was (1) improper 

and (2) prejudicial in the context of the entire trial. State v. Walker, 182 Wn.2d 463, 477, 

341 P.3d 976 (2015). When there was no objection at trial, the bar for reversal is raised 

to misconduct which is “so flagrant and ill-intentioned that an instruction would not have

cured the prejudice. Id. at 477-478 (quoting In re Pers. Restraint of Glassman, 175 

Wn.2d 696, 704, 286 P.3d 673 (2012)). 

Conduct that clears this higher bar results in enduring prejudice that cannot be 

fixed by an instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). It 

engenders such great prejudice in the minds of the jury, that a fair trial is impossible. 

Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932). Historically, this 

type of prejudice has involved exploiting racial stereotypes and manipulated imagery in 

closing presentations. E.g., Walker, 182 Wn.2d at 468; State v. Monday, 171 Wn.2d 667, 

257 P.3d 551 (2011).
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“Fill-in-the-blank” arguments are improper. State v. Emery, 174 Wn.2d 741, 759, 

278 P.3d 653 (2012). In Emery, the prosecutor explicitly stated in closing, “you’d [the 

jury] have to say . . . I doubt the defendant is guilty, and my reason is blank. . . . If you 

think that you have a doubt, you must fill in that blank.” Id. at 750-751. This type of 

argument subtly shifts the burden of proof, and also implies the jury must do something 

to find a defendant not guilty. Id. at 758-760. While improper, a fill-in-the-blank 

argument on its own—even one as explicit as in Emery—does not rise to the level of 

flagrant and ill-intentioned. Id. at 762. The Emery court held that the combination of an 

explicit fill-in-the-blank argument and an exhortation to the jury to “speak the truth” were 

both improper, but even together did not amount to flagrant and ill-intentioned 

misconduct. Id. at 760-764. In other fill-in-the-blank cases, it has been a combination of 

several improper statements or cumulative error that ultimately resulted in reversal. E.g.,

State v. Venegas, 155 Wn. App. 507, 228 P.3d 813 (2010); State v. Johnson, 158 Wn. 

App. 677, 243 P.3d 936 (2010).

This court has declined to find a fill-in-the-blank argument in the text of jury 

instructions which describe reasonable doubt as “a doubt for which a reason exists.” See 

State v. Kalebaugh, 179 Wn. App. 414, 424-425, 318 P.3d 288 (2014); State v. Hood, 196 

Wn. App. 127, 131, 382 P.3d 710 (2016). The Supreme Court also endorsed this as a 

proper description of reasonable doubt. Emery, 174 Wn.2d at 759.
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In this case, the alleged fill-in-the-blank argument is not explicit and does not shift 

the burden of proof to the defendant. The prosecution did not call on the jury to fill in a 

blank, but rather restated the jury instruction’s explanation that “a reasonable doubt is one 

for which a reason exists.” 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY 

INSTRUCTIONS: CRIMINAL 4.01, at 93 (4th ed. 2016). At a glance, the prosecutor’s 

statement that “there has to actually be a reasonable thing” resembles part of an improper 

argument from Anderson that reasonable doubt is “something real, with a reason to it.” 

There the improper statement immediately followed an explicit call for the jury to “fill in 

the blank.” State v. Anderson, 153 Wn. App. 417, 424, 220 P.3d 1273 (2009). The 

insidious shift that occurs when the prosecutor says the jury must do something to find a 

defendant not guilty—like fill in a blank—is absent here. 

It is also improper for the prosecution to comment on a defendant’s lack of 

evidence. State v. Sundberg, 185 Wn.2d 147, 153, 370 P.3d 1 (2016). However, in some 

situations when the defendant testified, the prosecution can comment on the defendant’s 

lack of evidence to corroborate his theory of the case. Id at 156. This does not 

improperly shift the burden of proof because “evidence supporting a defendant’s theory 

of the case is subject to the same searching examination as the State’s evidence.” State v. 

Vassar, 188 Wn. App. 251, 260, 352 P.3d 856 (2015). In Vassar, a defendant charged 

with theft of a motor vehicle claimed the owner forged a bill of sale transferring 
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ownership from the defendant to the owner. Id. at 251. It was not improper for the State 

to comment that no evidence showed the bill of sale was forged. Id. at 256.

The prosecution’s attacks on the defendant’s testimony in this case were not 

improper. The prosecutor was entitled to point out that a large envelope was not 

produced and that the defendant’s father who allegedly found the envelope in the mail did 

not testify. This was similar to the prosecutor’s comment on a lack of evidence showing 

a bill of sale was forged in Vassar.

The prosecutor’s closing arguments were not improper, and certainly do not 

amount to the sort of flagrant and ill-intentioned misconduct which requires reversal 

absent an objection below. That conclusion also dooms Mr. Vedder’s derivative 

argument that he was denied the effective assistance of counsel. 

A successful claim of ineffective assistance of counsel requires a showing (1) that 

counsel’s performance was deficient and (2) that the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984). The defendant must show that counsel performed below an objective standard of 

reasonableness under “prevailing professional norms,” and “considering all the 

circumstances.” Id. Courts are to “indulge a strong presumption that counsel’s conduct 

falls within the wide range of reasonable professional assistance.” Id. at 689. It is the 

defendant’s burden to show there was “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Id. at 669. 
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During closing argument, a prosecutor has “wide latitude in closing argument to draw 

reasonable inferences from the evidence and to express such inferences to the jury.” In re 

Pers. Restraint of Davis, 152 Wn.2d 647, 716, 101 P.3d 1 (2004).

As discussed above, in this case the prosecutor’s statements during closing 

arguments were not improper. There was no fill-in-the-blank argument, and the 

prosecutor’s comment on the lack of evidence to corroborate the defendant’s testimony 

about receiving the check in the mail was proper. Because a defendant cannot be 

prejudiced by proper argument, counsel was not ineffective for failing to object. 

Affirmed.

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

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

2.06.040.

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Korsmo, J.P.T.

WE CONCUR:

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Lawrence-Berrey, J.

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Pennell, C.J.