Filed Washington State Court of Appeals Division Two
December 23, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 60168-1-II
Respondent,
v.
CALE HUNTER BYERS, UNPUBLISHED OPINION
Appellant.
LEE, J. — Cale H. Byers appeals his conviction for one count of threatening to bomb or
injure property. Byers argues that there was insufficient evidence of a true threat to support his
conviction. He also contends that the trial court abused its discretion when it admitted photos of
weapons and anti-abortion pamphlets into evidence. Finally, Byers argues that his conviction
should be reversed because the State committed prosecutorial misconduct.
We hold that there was sufficient evidence of a true threat to support Byers’ conviction,
the trial court did not abuse its discretion by admitting photos of weapons and anti-abortion
pamphlets into evidence, and Byers’ prosecutorial misconduct challenge fails. Accordingly, we
affirm Byers’ conviction.
FACTS
A. BACKGROUND
On October 22, 2022, Byers sent a text message to seven members of his church, including
his pastor, Robert Lloyd. The message read: No. 60168-1-II
Planned [P]arenthood doesn’t stand a chance. Multiply that by 25 other Christian men, and we could change the west coast[.]
In the same way that you wouldn’t preach the gospel to Hitler’s gas chamber team, or the nazi cops, you don’t preach the gospel to people actively killing other people. You stop them from killing other people[.]
I know you guys all have plenty of weapons. If you’re interested in shutting down the clinic, please let me know. Otherwise, what is the purpose of having weapons against a tyrannical government? [T]hey collect dust, and these poor children are being slaughtered daily.
Ex. 1, at 1-3.1 Byers attached to the text message a photograph of an assault rifle, magazines, and
other weapons. Pastor Lloyd immediately reported the text message he received from Byers to the
Battleground police.
The police finally located Byers in Ridgefield, Washington in December 2022, and
interviewed Byers at his workplace. Pursuant to a search warrant, police officers searched Byers’
vehicle and found a tactical vest, weapons, and several anti-abortion pamphlets.
The State charged Byers with one count of threatening to bomb or injure property under
RCW 9.61.160(1).
B. MOTION TO SUPPRESS
Prior to trial, Byers moved to suppress the evidence found in the search of his vehicle.
Byers argued that there was no nexus between the October 22 text message and the December
search and that the State was “throwing out extra things to make him look bad” so “[i]t really
becomes 404(b), rather than something related to . . . the allegation before the Court and before
the jury.” 1 Verbatim Rep. of Proc. (VRP) (Jan. 29, 2024) at 52.
1 We note that pages of Exhibit 1 are not numbered. However, for the purposes of this opinion, we number the pages 1 through 3 starting with the first page of the exhibit.
2 No. 60168-1-II
In response, the State clarified that it was not seeking to admit the evidence under ER
404(b). Instead, the State argued that the results of the search were probative on the issues of true
threat and identity. The trial court denied Byers’ motion to suppress because the search was part
of an ongoing investigation related to the text message.
C. TRIAL
1. Evidence
The State presented the text message as an exhibit at trial. The State also presented
testimony from Pastor Lloyd and several police officers who were involved in the investigation.
Pastor Lloyd testified that he reported the text message to the police. He stated that he
believed the message was from Byers because Byers had texted him prior to October 22, because
he discussed the text message with Byers, and because Byers had previously expressed “a very
strong opinion about abortion . . . and needing to do more to stop it.” 1 VRP (Jan. 29, 2024) at
Detective Steven Romero testified that the Vancouver Planned Parenthood was the only
Planned Parenthood in Clark County and that it was located in a building.
Sergeant Joseph Graff testified that during the investigation, police obtained a search
warrant for Byers’ vehicle. Sergeant Graff identified several photographs of items that were found
during the search, including a tactical vest, an assault rifle, several magazines and ammunition, a
knife, another handgun, and additional rounds. In addition, police found anti-abortion pamphlets
in the vehicle. The trial court admitted photographs of the weapons and anti-abortion pamphlets.
3 No. 60168-1-II
On several occasions, Byers cross-examined the State’s witnesses about whether Byers
sent the text message or whether the text message was spoofed (i.e., whether the text message only
appeared to come from Byers).
2. State’s Closing Arguments
The State argued that the text message demonstrated a serious intent to do harm. The State
contended that the text message directed the recipients to use their firearms to shut down the
Planned Parenthood clinic.
While discussing the elements of the crime, the State argued that evidence may be direct
or circumstantial. The State contended that there was “circumstantial evidence from his messages,
. . . his attitude towards abortion,” “[h]is information in his car about abortion,” and “[h]ow
strongly he feels about abortion” to infer that Byers threatened to injure a building. 1 VRP (Jan.
30, 2024) at 306. The State directed the jury’s attention to the photograph of the Planned
Parenthood clinic and argued that the jury could “reasonably infer that the defendant was talking
about this Planned Parenthood in Vancouver. . . . The church is in our county, it’s in our state. All
the people that he’s sending this message to are people involved in his church in Battleground.
You can make that reasonable inference.” 1 VRP (Jan. 30, 2024) at 307.
The State also argued that the text message was not a joke; the message began with a
photograph of firearms and talked about violence. The State concluded its argument with:
[Y]ou’re either gonna [sic] threaten someone as a joke or not. Today’s society, and you get to walk in, cause the Judge instructed you with your own common sense, your own life experiences, to find what the truth is. And that’s what a verdict means, truth. . . . And when you analyze a threat in today’s society, where mass shootings happen. Where threats to bomb, turn into real bombs. Where threats to shoot somebody actually turn[] [in]to actual deaths. This isn’t 1970. This is where mass shootings occur on a regular basis. Where people, innocent people, children,
4 No. 60168-1-II
people going to clinics, people going to churches die. So, when you send out messages with assault rifles and talks of gas chambers and shutting down clinics, it’s no joke in 2024, in 2022, in 2023.
1 VRP (Jan. 30, 2024) at 308-09.
The jury found Byers guilty of threatening to injure property.
Byers appeals.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Byers argues that there was insufficient evidence to show that he expressed a true threat to
injure the Planned Parenthood building. We disagree.
1. Legal Principles
Generally, when determining whether evidence is sufficient to support a criminal
conviction, the applicable inquiry is whether “‘after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’” State v. Roberts, 5 Wn.3d 222, 231, 572 P.3d 1191 (2025)
(emphasis in original) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L.
Ed. 2d 560 (1979)). “[J]udicial review includes ‘all of the evidence’ considered in a light most
favorable to the prosecution.” Id. (emphasis in original) (quoting Jackson, 443 U.S. at 318-19.)
“When a criminal defendant challenges sufficiency of the evidence, ‘all reasonable inferences from
the evidence must be drawn in favor of the State and interpreted most strongly against the
defendant.’” State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019) (quoting State v. Salinas,
119 Wn.2d 192, 201, 829 P.2d 1068 (1992)), cert. denied, 589 U.S. 1148 (2020). “‘Circumstantial
evidence and direct evidence are equally reliable in determining the sufficiency of the evidence.’”
5 No. 60168-1-II
Id. (internal quotation marks omitted) (quoting State v. Kintz, 169 Wn.2d 537, 551, 238 P.3d 470
(2010)).
However, because this issue involves a First Amendment consideration—whether Byers’
message constituted a “true threat” and therefore unprotected speech—“[i]t is not enough to
engage in the usual process of assessing whether there is sufficient evidence in the record to
support the trial court’s findings.” State v. Kilburn, 151 Wn.2d 36, 49, 84 P.3d 1215 (2004). We
must independently review the crucial facts that bear on the constitutional question. Id. at 52.
However, our review does not extend to determinations of witness credibility. State v. Locke, 175
Wn. App. 779, 791, 307 P.3d 771 (2013), review denied, 179 Wn.2d 1021 (2014).
2. Evidence of True Threat
To convict Byers of threatening to bomb or injure property under RCW 9.61.160(1), the
State had to prove that Byers threatened to bomb or otherwise injure any building. As our Supreme
Court held in State v. Johnston, 156 Wn.2d 355, 363-64, 127 P.3d 707 (2006), the statute applies
only to true threats—not threats made in jest or political statements.
“‘True threats are serious expression[s] conveying that a speaker means to commit an act
of unlawful violence.’” State v. Calloway, 31 Wn. App. 2d 405, 416, 550 P.3d 77 (alteration in
original) (internal quotation marks omitted) (quoting Counterman v. Colorado, 600 U.S. 66, 75,
143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023)), review granted, 3 Wn.3d 1031 (2024).
In Counterman, the United States Supreme Court held that the First Amendment “demands
‘a subjective mental-state requirement’” of at least recklessness. Calloway, 31 Wn. App. 2d at
416 (quoting Counterman, 600 U.S. at 75). Accordingly, in addition to the statutory elements, the
State must prove “‘that the defendant consciously disregarded a substantial risk that [the]
6 No. 60168-1-II
communications would be viewed as threatening violence.’” Id. (alteration in original) (quoting
Counterman, 600 U.S. at 69). The defendant must be “at least ‘aware that others could regard
[the] statements as threatening violence and deliver[ed] them anyway.’” Id. at 420 (alterations in
original) (internal quotation marks omitted) (quoting Counterman, 600 U.S. at 79).
“[A] person knowingly threatens when they know ‘to a practical certainty that others will
take [their] words as threats.’” Id. at 416-17 (second alteration in original) (quoting Counterman,
600 U.S. at 79). In contrast, reckless conduct is less morally culpable than knowing conduct. Id.
at 416. But reckless conduct is more morally culpable than negligent conduct. Id. at 417.
Because courts rarely have direct evidence of a defendant’s intent, it “is typically proved
through circumstantial evidence.” State v. Vasquez, 178 Wn.2d 1, 8, 309 P.3d 318 (2013).
“‘[I]ntent to commit a crime may be inferred if the defendant’s conduct and surrounding facts and
circumstances plainly indicate such an intent as a matter of logical probability.’” Id. (quoting State
v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991)).
Byers argues that the text message was political speech rather than a true threat. Byers
relies on Locke and City of Seattle v. Buford-Johnson, 20 Wn. App. 2d 616, 501 P.3d 594 (2021).
In Locke, the court considered whether there was sufficient evidence of a “true threat.” 175
Wn. App. at 788. Locke sent two e-mails to Governor Gregoire. Id. at 785. In the first e-mail,
Locke identified his city as “‘Gregoiremustdie’” and wrote that he hoped Governor Gregoire
would witness “‘one of [her] family members raped and murdered by a sexual predator. Thank
you for putting this state in the toilet.’” Id. (quoting record). In his second e-mail, Locke again
listed his city as “‘Gregoiremustdie’” and wrote that Governor Gregoire “‘should be burned at the
stake like any heretic.’” Id. (quoting record). Two minutes later, Locke sent an event request to
7 No. 60168-1-II
Governor Gregoire that identified his organization as “‘Gregoire Must DIe [sic],’” requested that
the event be held at the Governor’s mansion, and listed the subject as “‘Gregoire’s public
execution.’” Id. at 786 (alteration in original) (quoting record).
The court determined that the first e-mail, while “crude and upsetting” was “more in the
nature of hyperbolic political speech, predicting threatening personal consequences from the
State’s policies.” Id. at 791. However, the second e-mail and the event request were not political
speech because they “conveyed no view or position on public issues or policies.” Id. at 795. The
court further clarified that referencing burning at the stake did not transform the message into
legitimate political speech despite its political roots. Id. at 792.
In Buford-Johnson, the court also considered whether there was sufficient evidence of a
true threat. 20 Wn. App. 2d at 622. In that case, Johnson yelled “‘f[***] the police’” at a police
officer and gestured at the officer as if Johnson had a firearm. Id. at 619 (internal quotation marks
omitted) (quoting record). Johnson did not stop or approach the officer; rather, he drove away. Id.
at 626. On appeal, the court determined that Johnson’s speech and conduct did not constitute a
true threat; rather, it was “a generalized and political statement of animosity.” Id. at 625. Further,
the court noted that political speech is that which is “‘relat[ed] to government, a government, or
the conduct of government affairs’ and expressed a pointed opinion to that effect.” Id. at 625 n.4
(alteration in original) (quoting WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1755 (2002)
(definition of “political”)). Noting that Johnson did not stop or approach the officer, the court
determined that the facts were “suggestive of a casual encounter or idle talk than a serious threat.”
Id. at 626.
8 No. 60168-1-II
Here, Byers’ text message was not merely hyperbolic political speech as in Locke nor was
it a generalized political statement as in Buford-Johnson. Locke, 175 Wn. App. at 795; Buford-
Johnson, 20 Wn. App. at 625. Even if Byers’ statements in his text message are interpreted as
hyperbolic or political in nature based on its target, Planned Parenthood, Byers did not just make
a general political statement. Instead, Byers directly called for violence against Planned
Parenthood. Byers’ text message attached a photograph of an assault rifle, magazines, and other
weapons, along with a statement that “Planned [P]arenthood doesn’t stand a chance,” that he
knows the message recipients “have plenty of weapons,” and that the recipients “interested in
shutting down the clinic” should let him know. Ex. 1, at 1, 3. Byers’ text message also made a
call for violence by saying that “[i]n the same way that you wouldn’t preach the gospel to Hitler’s
gas chamber team, or the nazi cops, you don’t preach the gospel to people actively killing other
people. You stop them from killing other people.” Ex. 1, at 2. “Otherwise, what is the purpose
of having weapons . . . . [T]hese poor children are being slaughtered daily.” Ex. 1, at 3. These
statements were not merely generalized political statements of animosity like the conduct in
Buford-Johnson—Byers’ statements were a specific call to a particular audience to stop Planned
Parenthood through violence. 20 Wn. App. at 625-26. In addition, Byers had previously expressed
his strong feelings against abortion and “needing to do more to stop it” to Pastor Lloyd, who was
a recipient of the text message. 1 VRP (Jan. 29, 2024) at 194.
The evidence supports the logical probability that Byers consciously disregarded a
substantial risk that the message would be viewed as threatening violence. Therefore, sufficient
evidence supports the finding of a true threat.
9 No. 60168-1-II
B. ADMISSION OF PHOTOS INTO EVIDENCE
Next, Byers argues that the trial court abused its discretion by “admitting irrelevant photos”
from the search of his vehicle. Br. of Appellant at 39. Specifically, Byers contends that there was
“no nexus between the evidence seized and [the] text message.” Br. of Appellant at 39. We
disagree.
We review a trial court’s evidentiary rulings for abuse of discretion. State v. Restvedt, 26
Wn. App. 2d 102, 122, 527 P.3d 171 (2023). “‘A trial court abuses its discretion when its decision
is manifestly unreasonable or exercised on untenable grounds or for untenable reasons.’” Id. at
122-23 (internal quotation marks omitted) (quoting State v. Arndt, 194 Wn.2d 784, 799, 453 P.3d
696 (2019), cert. denied, 142 S. Ct. 726 (2021)).
Relevant evidence is generally admissible. ER 402. Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” ER 401. “‘[T]he threshold
to admit relevant evidence is very low . . . [e]ven minimally relevant evidence is admissible.’”
State v. Bellerouche, 33 Wn. App. 2d 877, 888, 565 P.3d 604 (2025) (third alteration in original)
(quoting State v. Darden, 145 Wn.2d 612, 621, 41 P.3d 1189 (2002)).
2. Relevance
Byers argues that the photographs from the search of his vehicle were not relevant to the
issue of whether the text message was a true threat. Specifically, Byers asserts that the evidence
from the search was irrelevant because the items were discovered more than a month after the text
message was sent and because there was no indication that the recipients of the text message knew
10 No. 60168-1-II
about the items in his car. Also, Byers argues that the photographs were not needed to prove
identity.2 Although the items resulting from the search were discovered more than a month after
the text message was sent and the record does not indicate that the text message recipients knew
about these items, the trial court did not abuse its discretion in finding the photographs were
relevant.
The evidence was relevant to the issue of a true threat because photographs of Byers’ guns
and anti-abortion pamphlets make it more probable that Byers consciously disregarded the risk
that the text message could be interpreted as threatening violence. The photographs of guns and
ammunition made it more probable that Byers had the means to carry out the threat with the
weapons in the vehicle. And the photographs of the anti-abortion pamphlets in the vehicle reflect
his strong opinions about abortion, like those expressed in the messages, such that the photographs
make it more probable that his text message was a threat against Planned Parenthood.
Accordingly, the photographs were relevant to the issue of a true threat.
Additionally, although Byers argues that the photographs were not necessary to prove
identity, Byers clearly disputed identity by cross-examining the State’s witnesses about whether
they could confirm Byers actually sent the message. Thus, the photographs made it more probable
that Byers actually sent the message because his vehicle contained similar weapons to those
attached to the message. And the photographs of the anti-abortion pamphlets make it more
probable that Byers sent the text message based on the similar anti-abortion sentiments contained
2 Byers makes only passing references in his brief to the number of photographs admitted. Without argument, we do not consider this issue. See RAP 10.3(a)(6); Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.”), review denied, 136 Wn.2d 1015 (1998).
11 No. 60168-1-II
in the text message. Therefore, the trial court did not abuse its discretion by determining that the
photographs were relevant.3
C. PROSECUTORIAL MISCONDUCT
Byers contends that his conviction should be reversed because the State committed
prosecutorial misconduct. Byers identifies several instances of alleged misconduct. We disagree.
To prevail on a claim of prosecutorial misconduct, the defendant must show the
prosecutor's conduct was improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d
653 (2012). We apply a two-pronged analysis: First, we consider “whether the prosecutor's
conduct was improper.” State v. Teas, 10 Wn. App. 2d 111, 120, 447 P.3d 606 (2019), review
denied, 195 Wn.2d 1008 (2020). If the conduct was improper, “then the question turns to whether
the prosecutor's improper conduct resulted in prejudice.” Id. “Prejudice is established by showing
a substantial likelihood that the prosecutor's misconduct affected the verdict.” Id.
If the defendant fails to object to the prosecutor's conduct at trial, they waive “‘any error,
unless the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction could not
have cured the resulting prejudice.’” Id. at 121 (quoting Emery, 174 Wn.2d at 760-61). Under
this standard, the defendant must show “‘(1) no curative instruction would have obviated any
prejudicial effect on the jury and (2) the misconduct resulted in prejudice that had a substantial
likelihood of affecting the jury verdict.’” Id. (internal quotation marks omitted) (quoting Emery,
3 To the extent Byers argues that the evidence should have been excluded under ER 403, Byers did not preserve this issue. We need not review any claim of error which was not raised in the trial court under RAP 2.5.
12 No. 60168-1-II
174 Wn.2d at 761). The analysis focuses on “whether the resulting prejudice could have been
cured.” Id.; see also State v. Crossguns, 199 Wn.2d 282, 299, 505 P.3d 529 (2022) (“‘Reviewing
courts should focus less on whether the prosecutor’s misconduct was flagrant or ill intentioned and
more on whether the resulting prejudice could have been cured.’” (quoting Emery, 174 Wn.2d at
762)).
Because Byers did not object to the prosecutor’s statements at trial, he must show that the
prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction could not have cured
the resulting prejudice.
2. “Truth”
Byers argues the prosecutor committed misconduct during closing arguments by asking the
jury “‘to find what the truth is’” and arguing that “’a verdict means[] truth.’” Br. of Appellant at
51-52 (quoting 1 VRP (Jan. 30, 2024) at 309). The State concedes that the prosecutor’s argument
was improper but contends that “it was a single statement surrounded by otherwise proper
arguments regarding whether Byers had made a true threat.” Br. of Resp’t at 31.
We accept the State’s concession that the prosecutor’s argument was improper. Crossguns,
199 Wn.2d at 297 (“It is improper for a prosecutor to ask the jury to decide who was telling the
truth. We have also held that it is misconduct for a prosecutor to plead for the jury to ‘speak the
truth’ reaching its verdict.” (citations omitted) (internal quotation marks omitted) (quoting State v.
Lindsay, 180 Wn.2d 423, 436, 326 P.3d 125 (2014))). But because Byers did not object at trial,
he must show that no curative instruction would have prevented any prejudicial effect and that the
prejudice had a substantial likelihood of affecting the jury verdict.
13 No. 60168-1-II
The State argues that an objection could have cured any prejudice because the trial court
could have clarified the role of the jury and the burden of proof. We agree.
A curative instruction for the jury to disregard the prosecutor’s argument and clarifying the
role of the jury would have eliminated any resulting prejudice. Therefore, Byers fails to show that
the State’s conduct was so flagrant and ill-intentioned that an instruction could not have cured any
resulting prejudice. Accordingly, Byers’ prosecutorial misconduct claim fails.
3. Asking the Jury to Infer
Byers also argues that the State committed misconduct when it asked the jury to reasonably
infer that Byers was talking about a Planned Parenthood building because “there was no evidence
presented” to support this inference. Br. of Appellant at 52.
Prosecutors “have ‘wide latitude to argue reasonable inferences from the evidence.’” In re
Pers. Restraint of Phelps, 190 Wn.2d 155, 166, 410 P.3d 1142 (2018) (quoting State v. Thorgerson,
172 Wn.2d 438, 448, 258 P.3d 43 (2011)). However, a prosecutor’s argument “must be based on
the evidence.” Crossguns, 199 Wn.2d at 296-97.
Here, after discussing the text message Byers sent, the prosecutor discussed the evidence
relating to Byers’ attitude towards abortion and the definition of “building” and argued that the
jury could “reasonably infer that the defendant was talking about this Planned Parenthood in
Vancouver.” 1 VRP (Jan. 30, 2024) at 307. A prosecutor has wide latitude to argue reasonable
inferences from the evidence. And the State’s evidence included the text message which stated,
“Planned [P]arenthood doesn’t stand a chance,” and “[i]f you’re interested in shutting down the
clinic, please let me know.” Ex. 1, at 1, 3. There also was evidence that there is a Planned
Parenthood in Vancouver and that Planned Parenthood is in a building. Thus, the prosecutor’s
14 No. 60168-1-II
arguments were supported by the evidence or were based on reasonable inferences from the
evidence and not improper.
4. Discussing Mass Shootings and Abortion
Although a prosecutor may argue reasonable inferences from the evidence, a prosecutor
“‘should not use arguments calculated to inflame the passions or prejudices of the jury.’” In re
Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012) (quoting AM BAR ASS’N,
STANDARDS FOR CRIMINAL JUSTICE std. 3-5.8(c) (2d ed. 1980)). A prosecutor’s statements during
closing argument are viewed in “context of the total argument, the issues in the case, the evidence
addressed in the argument, and the instructions given to the jury.” State v. Brown, 132 Wn.2d 529,
561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998).
Here, Byers argues the prosecutor committed misconduct when he discussed mass
shootings because there was no evidence of mass shootings at trial and because Byers was charged
with threatening to injure a building, not murder or assault. Byers also argues that the State
presented no evidence about the 1970s at trial.
Considering the prosecutor’s statements in the context of the total argument and the issues
in the case, the prosecutor’s reference to mass shootings falls within a prosecutor’s wide latitude
to argue reasonable inferences from the evidence. After discussing how Byers’ text message was
a true threat, the prosecutor contended, “And when you analyze a threat in today’s society, where
mass shootings happen. . . . This isn’t 1970. This is where mass shootings occur on a regular
basis.” 1 VRP (Jan. 30, 2025) at 308-09. While a reference to the 1970s was unrelated to the
evidence at trial, the State’s argument merely compared today’s environment to the 1970s,
15 No. 60168-1-II
assuming that in today’s society, everyone is aware of the prevalence of mass shootings.
Accordingly, this argument was not improper.
But even if the prosecutor’s commentary on mass shootings was improper, Byers fails to
show that the prosecutor's misconduct was so flagrant and ill-intentioned that an instruction could
not have cured any resulting prejudice. Had Byers objected, the trial court could have instructed
the jury to disregard the prosecutor’s arguments. Such an instruction would have cured any
resulting prejudice.
Finally, Byers argues that the State’s comments on his beliefs about abortion were not
based on evidence. The prosecutor argued that the jury could “use circumstantial evidence from
his messages . . . to infer that what his threat is, is to injure a building. And the circumstantial
evidence of that[] is his attitude towards abortion. His information in his car about abortion. How
strongly he feels against abortion.” 1 VRP (Jan. 30, 2024) at 306. This argument was based on
evidence presented at trial. The text message reflected Byers’ views on abortion, and Pastor Lloyd
testified about Byers’ views on abortion. Accordingly, the State properly based this argument on
evidence and the reasonable inferences from the evidence presented at trial.
Byers fails to show improper conduct or prejudice. Therefore, his prosecutorial
misconduct claims fail.
CONCLUSION
Because there was sufficient evidence of a true threat, the trial court did not abuse its
discretion by admitting photographs of weapons and anti-abortion pamphlets into evidence, and
Byers’ conviction should not be reversed due to prosecutorial misconduct, we affirm Byers’
conviction.
16 No. 60168-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Glasgow, J.
Cruser, C.J.