State Of Washington, V. Dannie C. Brashear

559 P.3d 121

• Court: Court of Appeals of Washington
• Decided: November 19, 2024
• Docket: 86610-9
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 86610-9-I Respondent, DIVISION ONE v. OPINION PUBLISHED IN PART DANNIE CHRISTOPHER BRASHEAR,

Appellant.

BIRK, J. — Dannie Brashear appeals his conviction, arguing, among other

things, that the trial court violated his constitutional right to confer with counsel

where he appeared at all pretrial hearings remotely, while his defense counsel was

at a different location. In the published portion of this opinion, we hold that

Brashear did not object to this arrangement in the trial court and cannot raise this

issue for the first time on appeal because he cannot show manifest error as

required by RAP 2.5(a)(3). For this reason, and those discussed in the

unpublished portion of this opinion, we affirm Brashear’s conviction and remand to

strike the victim penalty assessment (VPA) and community custody supervision

fees.

I

On November 18, 2021, the State filed an information in superior court

charging Brashear with several criminal counts arising out of alleged altercations No. 86610-9-I/2

with an intimate partner. Brashear appeared remotely via Zoom1 from the jail for

each of his pretrial hearings, while defense counsel appeared from a location

different from him. Brashear did not object to appearing remotely at any of the

hearings.

Brashear’s first appearance occurred on December 2, 2021. The trial court

found probable cause existed for the charges and appointed counsel for Brashear.

The State requested, and the trial court agreed to, $500,000.00 in bail. The trial

court placed Brashear in a waiting room2 for “a few minutes” while the conditions

for release and the no-contact order were being prepared. Defense counsel asked

to be placed in the same waiting room, which the trial court stated it could not do.3

At Brashear’s arraignment, Brashear pleaded not guilty and the trial court

set dates for trial and an omnibus hearing.

On December 17, 2021, the trial court went on the record to note that a

motion hearing had been moved to the following week.

On December 23, 2021, the trial court held a hearing for Brashear’s motion

to reduce bail to $100,000.00. Through counsel, Brashear argued that he had a

1 “Zoom” is a cloud-based videoconferencing software platform. 2 A Zoom “waiting room” is a virtual staging area that prevents people from

joining a meeting until the host is ready. Secure Your Meetings with Zoom Waiting Rooms, ZOOM BLOG, https://www.zoom.com/en/blog/secure-your-meetings-zoom- waiting-rooms/?cms_guid=false&lang=en-US (last visited Oct. 15, 2024). 3 Brashear does not clearly argue on appeal that this exchange amounted

to an objection to use of the remote platform. Brashear raises it as evidence that he lacked the ability to continuously confer with counsel. When Brashear was asked to wait while the trial court completed paperwork, his newly appointed counsel asked for the opportunity to confer. The record indicates that a breakout room was not available because the jail was “pushing through.” The exchange does not indicate that the remote platform did not allow breakout room capability.

2 No. 86610-9-I/3

two year old child for whom he was obligated to pay child support, he tested

positive for COVID-19 at the jail and “[h]e’d like to get out of there,” he had an open

labor and industries claim that he could not prosecute from the jail, and he had

limited funds secured to assist in the payment of the bail bond. The State objected

to any reduction of Brashear’s bail, and the trial court denied the defense’s motion.

At the January 12, 2022 omnibus hearing, the State noted that “the parties

are in agreement to set it over to next week.” Defense counsel indicated he had

“talked to [Brashear] about this,” and the court continued the hearing.

On January 21, 2022, the trial court held the rescheduled omnibus hearing,

where the parties confirmed they had exchanged omnibus packages.

On January 25, 2022, the trial court held a hearing for defense counsel’s

motion to continue. After determining the parties were within Brashear’s speedy

trial deadline, the trial court reset trial for April 18, 2022.

On February 4, 2022, the trial court held a hearing for Brashear’s motion to

allow him access to the law library, for which Brashear was not present. The State

had no objection and the trial court granted the motion.

On March 16, 2022, a hearing was held on Brashear’s motion for

substitution of counsel. The trial court allowed the substitution and confirmed it

would not change any trial dates.

On April 14, 2022, the trial court held a readiness hearing. Brashear’s new

defense counsel noted she and the State agreed on a new trial date, but could be

ready “only if the motion to sever is granted.” The State requested a continuance

to review the motion to sever and noted it also could not be ready without knowing

3 No. 86610-9-I/4

the court’s ruling on the motion. Brashear stated, “I would like to move forward

with my trial on Monday, but I believe it’s best if we could sever it.” The trial court

continued trial to May 2 and set a new readiness hearing.

On April 21, 2022, the trial court held a second readiness hearing. Defense

counsel requested a continuance to review additional discovery she had received,

and noted on the record she had conferred with Brashear, “We have discussed it

at length. He knows what the Court’s position is and I think the Court can find good

cause, based on the fact that I have not reviewed all of the discovery in the

matters.” After hearing from the State and Brashear, the trial court continued trial

until June 21, 2022.

On May 13, 2022, the trial court held a hearing regarding the pending trial

date. The State explained a witness was not available for the June 21 date

because he would be in military training, and asked to advance the trial date to

May 23. Brashear confirmed he did not object to moving up the trial date. The

trial court granted the State’s request.

II

Brashear argues for the first time on appeal that his constitutional right to

privately confer with counsel was violated where he appeared at these pretrial

hearings by videoconference while his defense counsel was in a different location.

We hold that Brashear cannot raise this issue for the first time on appeal because

he cannot establish manifest error under RAP 2.5(a)(3).

Under both the Sixth Amendment and article 1, section 22 of the

Washington constitution, a criminal defendant is entitled to the assistance of

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counsel. State v. Heng, 2 Wn.3d 384, 388, 539 P.3d 13 (2023). The right to

counsel attaches at a defendant’s “ ‘first appearance before a judicial officer’ where

‘a defendant is told of the formal accusation against him and restrictions are

imposed on his liberty.’ ” Id. at 389 (quoting Rothgery v. Gillespie County, 554

U.S. 191, 194, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008)). The right to counsel

requires defendants to have the ability to confer meaningfully and privately with

their attorneys at all critical stages of the proceedings. State v. Anderson, 19 Wn.

App. 2d 556, 562, 497 P.2d 880 (2021). “[A] critical stage is one where a

‘defendant’s rights were lost, defenses were waived, privileges were claimed or

waived, or in which the outcome of the case was otherwise substantially affected.’ ”

Heng, 2 Wn.3d at 394 (internal quotation marks omitted) (quoting State v.

Heddrick, 166 Wn.2d 898, 910 n.9, 215 P.3d 201 (2009)).

Case law distinguishes between the defendant lacking any legal counsel at

a hearing, and the defendant having counsel but lacking the ability to confer

meaningfully and privately during the proceedings. See State v. Dimas, 30 Wn.

App. 2d 213, 219, 544 P.3d 597 (2024). The Supreme Court has held that the

absence of counsel from a hearing that is not a critical stage is subject to

constitutional harmless error analysis. Heng, 2 Wn.3d at 393-94 (citing Satterwhite

v. Texas, 486 U.S. 249, 257, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988)). And this

court has held that where counsel is present, a deprivation of the right to

meaningfully and privately confer even at a critical stage is subject to constitutional

harmless error analysis. Dimas, 30 Wn. App. 2d at 219-20 (contrasting State v.

Heddrick, 166 Wn.2d 898, 910, 215 P.3d 201 (2009) (discussing complete denial

5 No. 86610-9-I/6

of counsel) and State v. Bragg, 28 Wn. App. 2d 497, 512, 536 P.3d 1176 (2023)

(applying constitutional harmless error to deprivation of the ability to confer at

critical stages)).4

Brashear did not object in the trial court that appearing remotely violated his

right to privately confer with counsel. RAP 2.5(a)(3) states that a party may raise

for the first time on appeal a “manifest error affecting a constitutional right.” This

rule is intended to allow a reviewing court to correct any “serious injustice to the

accused” and to preserve the fairness and integrity of judicial proceedings. State

v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). To determine the

applicability of RAP 2.5(a)(3), we inquire whether (1) the error is truly of a

constitutional magnitude, and (2) the error is manifest, meaning the appellant can

show actual prejudice. State v. J.W.M., 1 Wn.3d 58, 90, 524 P.3d 596 (2023). To

demonstrate actual prejudice, the appellant must make a plausible showing that

the claimed error had practical and identifiable consequences in the trial of the

case. Id. at 91. In determining whether the error was identifiable, the trial record

must be sufficient to determine the merits of the claim. State v. Kirkman, 159

Wn.2d 918, 935, 155 P.3d 125 (2007). “If the facts necessary to adjudicate the

claimed error are not in the record on appeal, no actual prejudice is shown and the

error is not manifest.” McFarland, 127 Wn.2d at 333.

4 When a defendant lacks any counsel at a critical stage of the proceedings,

the Washington Supreme Court has called this structural error requiring automatic reversal. Heng, 2 Wn.3d at 392.

6 No. 86610-9-I/7

Here, the deprivation of the right to confer with counsel is a constitutional

claim. Thus, the question turns on whether Brashear has established manifest

error.

This showing becomes more difficult when the claim is that a criminal

defendant was unable to confer with counsel at a proceeding that was not a critical

stage. Since critical stages in general include those “where the outcome of the

case was otherwise substantially affected,” Heng, 2 Wn.3d at 394, it follows that

limitations on conferring with counsel at other hearings are less likely to result in

“ ‘practical and identifiable consequences in the trial of the case’ ” under RAP

2.5(a)(3), J.W.M., 1 Wn.3d at 91 (internal quotation marks omitted) (quoting State

v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)). Brashear does not attempt

to demonstrate that any of the hearings at issue were critical stages. Brashear’s

first appearance and arraignment were not critical stages for purposes of the right

to counsel. See Heng, 2 Wn.3d at 395. The remaining proceedings were two

motion hearings for bail reduction, two omnibus hearings, a motion to continue

trial, a motion to allow Brashear access to the law library, a motion for substitution

of counsel, two readiness hearings, and a motion hearing to move the trial date

forward. At these hearings, Brashear “lost no rights, waived no defenses, and

neither claimed nor waived privileges.” Id. His challenges to the bail amount were

denied, but he did not “lose his ability to challenge bail.” Id.

We additionally look at the content of the hearings in considering whether

any limitation on conferral resulted in actual prejudice having practical and

identifiable consequences in the trial of the case. At the December 17 hearing, the

7 No. 86610-9-I/8

trial court went on the record only to learn the hearing had been moved to the

following week. At the December 23 hearing, Brashear’s counsel argued for bail

reduction and listed multiple reasons why bail should be reduced. It is clear from

the reasons presented that Brashear had had ample opportunity to confer with

counsel. There is no indication that consultation with counsel during the hearing

would have changed the outcome of the motion and Brashear makes no attempt

to show that any alleged deprivation affected the trial that occurred five months

later. The omnibus hearing was agreed, and the motions for law library access

and substitution of counsel were granted in Brashear’s favor. Brashear does not

show how the ability to confer at these hearings could have affected them, let alone

the subsequent trial.

The remaining hearings concerned the trial date. The trial court granted

trial continuances despite Brashear’s refusal to waive his speedy trial right. But

the trial court had legitimate reasons for granting the continuances, Brashear

informed the court of his objections, in at least one hearing Brashear’s counsel

noted on the record the fact of having conferred with Brashear, and the last hearing

resulted in trial being moved to an earlier date, where defense counsel invited

Brashear to provide his input, revealing that Brashear supported the court’s action.

There is no indication that Brashear’s ability to confer with counsel during the

hearings would have changed any result. In addition, Brashear gives no reason

that when trial occurred affected the outcome of this case.

Brashear cites Bragg in support of his argument that a trial court has an

affirmative duty to provide guidance on how a defendant can privately confer with

8 No. 86610-9-I/9

counsel regardless of whether the record permits review of the issue.5 Brashear

mischaracterizes Bragg. In Bragg, the State conceded that it was manifest error

affecting a constitutional right for the defendant to participate in all pretrial hearings

by video while his attorney appeared in court. 28 Wn. App. 2d at 504 n.5. The

court accepted review under RAP 2.5(a)(3), but cautioned, “[W]e do not hold that

every such deprivation satisfies RAP 2.5(a)(3). Manifest error must first be found.”

Id. at 504 n.5. We explained there was no “bright-line rule that a trial court

affirmatively must establish a process on the record for confidential attorney-client

communication, or it commits a constitutional violation,” and instead held that

“reviewing courts should consider the totality of the circumstances, including

whether the trial court explicitly established a process for such communications,

given the variety of different circumstances that may occur.” Id. at 507. In other

words, the trial court’s accommodation for private conferral is merely one factor

relevant to assessing whether an error is manifest. This factor does not aid

Brashear, because despite his asking us to infer he was unable to confer with

counsel, the record is silent on whether the trial court’s videoconferencing platform

allowed that capability.

In contrast, in Bragg, during at least four critical stage proceedings the trial

court provided no guidance about how to privately confer and explicitly refused to

5 Brashear also cites State v. Schlenker, but in that matter the appellant

preserved error by objecting to the use of videoconferencing in the trial court. 31 Wn. App. 2d 920, 553 P.3d 712, 725 (2024).

9 No. 86610-9-I/10

answer Bragg’s question about how to confer with his counsel.6 Id. at 506, 510-

11. The court applied the constitutional harmless error standard and held it could

not know beyond a reasonable doubt whether the outcome of the case would have

differed if the defendant had been able to have his attorney’s confidential

assistance during the four critical stage hearings. Id. at 512, 516. The substance

of the hearings appeared to have been significant to the outcome. They were a

review hearing discussing a plea offer, a hearing discussing Bragg’s request to

discharge counsel, and two hearings discussing DNA evidence and the potential

need for additional expert testimony at trial. Id. They included plea discussions,

and we could not exclude reasonable doubt about whether conferral might have

led to a plea bargain hundreds of months shorter than Bragg’s ultimate sentence.

Id. at 512-13. These were matters significant to the trial, and occurred in a context

where it was apparent that Bragg and his counsel had severe difficulty

communicating. Id. at 513-14. The lack of the ability to privately confer thus

appeared to significantly impact hearings whose outcome shaped the trial.

Brashear does not show how communication with counsel at any of the

pretrial hearings in his case could have affected the trial. He therefore fails to show

manifest error affecting a constitutional right under RAP 2.5(a)(3) and we decline

to reach this claim of error.

6 Bragg repeatedly alerted the court to his desire to confer with counsel and

his inability to do so, therefore it is not clear that Bragg is properly viewed as a case in which objection was not made in the trial court.

10 No. 86610-9-I/11

We have determined that the remainder of this opinion has no precedential

value. Therefore, it will be filed for public record in accordance with the rules

governing unpublished opinions. See RCW 2.06.040.

UNPUBLISHED TEXT FOLLOWS

Brashear additionally argues (1) the trial court violated his right to a fair trial

in admitting multiple references to his criminal history, (2) the State engaged in

prosecutorial misconduct, (3) Mourer did not have actual authority to consent to

officers’ warrantless entries into Brashear’s property, (4) cumulative error

occurred, (5) the trial court failed to follow the procedural requirements of the

mental health sentencing alternative (MHSA) statute, RCW 9.94A.695, (6) the trial

court erroneously imposed the VPA and community custody supervision fees, and

(7) numerous additional issues raised in a statement of additional grounds.

III

The State alleged that on October 26, 2021, October 30, 2021, and

November 9, 2021, Brashear assaulted his girlfriend, Jenny Mourer. The State

charged Brashear with second degree assault, harassment, two counts of fourth

degree assault, third degree malicious mischief—all with domestic violence

designations—interference with reporting of domestic violence, and first degree

unlawful possession of a firearm. In the State’s case, Clark County Sherriff’s

Deputy Michael Gonzalez testified an incident occurred on October 27, 2021 at

around 2:00 a.m., where a female called and said her head was bleeding and she

wanted an ambulance.

11 No. 86610-9-I/12

Deputy Gonzalez testified Mourer ran down the hill and “had blood coming

down from the top of her head. And she also had lacerations on her, I believe it

was right arm and wrist area.” The deputy testified that Mourer told him “that her

boyfriend or at the time, [Brashear] were arguing over her mom calling her and that

she got hit over the head with a hard object and she didn’t know what it was.” After

taking photos of Mourer, Deputy Gonzalez walked her down to the ambulance.

Officers then went up to the residence to search for Brashear using a K-9 unit, but

could not locate him. Mourer testified she and Brashear began dating sometime

after February 1, 2021, and stopped dating October 26, 2021 because “that’s the

day [Brashear] assaulted” her. Mourer testified that she “got knocked off the truck.

I was sitting on the back of the truck. And . . . either he punched me or kicked me.

I don’t remember which came first, but I remember I flew off the back of the truck

and I got knocked out.” Mourer testified Brashear hit her with his fists and “a tool

bag that had two drills in it.” Mourer testified she sustained a “collapsed lung on

my left side and I had fractured ribs and I had to get stiches on my arm and staples

in my head.” Medical witnesses at trial verified these injuries from the October 26-

27, 2021 incident.

Mourer said she left the hospital on October 30 and Brashear picked her up

and took her back to his house. Mourer testified that back at the house, she “got

hurt again” and “got punched off the toilet.” Mourer was punched in the face and

testified that she tried to defend herself by grabbing “whatever I could around me

and I was laying on my bag and I just started throwing shit, stuff.” Mourer testified

12 No. 86610-9-I/13

Brashear threatened her life, and told her “it was either me or him,” meaning “[o]ne

of us was gonna die.”

Deputy Gonzalez arrived at the property on October 30 and assisted Mourer

with gathering her belongings and walked her down the driveway to the ambulance

where she was transported to the hospital. Deputy Gonzalez testified he searched

the property looking for Brashear, and during his search found a “revolver” located

“on a bench outside of the vacant home.”

Brashear testified that his relationship with Mourer turned bad “almost

immediately” and during arguments she would strike him. On October 26, just after

midnight, the two were arguing in the garage when Mourer picked up Brashear’s

drill bag and swung it at him. Brashear responded by pushing Mourer off to the

side, causing her to fall onto the hitch of the truck. According to Brashear, as he

pushed Mourer, the beer bottle in his hand fell to the ground and broke. Brashear

testified, “I believe she fractured two of her ribs on her left side and then she rolled

over and was dazed, and she had mentioned yesterday that she ran her forehead

into the exhaust pipe of the truck.” Mourer then fell into the glass from the broken

beer bottle, “[a]nd then, when she was getting back out from under the truck, she

was pushing herself” up, causing her to cut her arm. Brashear explained that there

was blood “all over the door and on the refrigerator” because he helped Mourer up

and took her into the main house. The two then made the decision to call 911 and

Brashear helped her into the ambulance that night. Afterwards, Brashear went

back into the house and went to sleep.

13 No. 86610-9-I/14

Brashear testified that he picked Mourer up from the hospital and brought

her back to his house, where the two began arguing later that evening. Brashear

testified Mourer “said that she was gonna call up an ambulance and tell them that

her lung was collapsing, so that she could get off the property.” Brashear helped

Mourer carry her things down to the property line at the bottom of the driveway.

The State dismissed the interference with reporting of domestic violence

charge before the case was submitted to the jury. The jury acquitted Brashear of

harassment, both counts of fourth degree assault, and third degree malicious

mischief. The jury found Brashear guilty of second degree assault and unlawful

possession of a firearm, and found that Brashear and Mourer were intimate

partners.

At sentencing, the trial court imposed the VPA fee, and waived all other non-

mandatory legal financial obligations. Brashear asked for a MHSA because of his

history as a “severe alcoholic.” The trial court denied Brashear’s request and

stated,

I look at this case and what is bothering me is or what I’m having trouble with is the argument that alcohol is the primary problem here. It’s a bit, in this Court’s view of saying that fuel is a danger and fuel is a problem. Well, if fuel is only a danger to or explosive when there’s an underlying flame or ignition or something that could start it. So, obviously, alcohol is a lifelong struggle and condition here, but what’s more bothersome to the Court is a pattern of behavior, not just in this case, but perhaps previously. But what I’m seeing here and what I remember from the case was a pattern of a certain amount of grooming and predation upon this particular victim. It’s hard to imagine a more vulnerable victim or a fact pattern presentation that demonstrates a particular vulnerability. As I recall, you found her at a gas station in Battleground with a child in February alone and in the rain. Took her into his property

14 No. 86610-9-I/15

out in North County. You see patterns of isolation and financial dependence and other dependence on him. I don’t think that’s accidental. I don’t think that can be explained by alcohol over the course of eight or nine months when we get into October and November with these alleged incidents occurred. I think this was all whether intentional or subconscious, an effort to groom and put this person in a position of complete dependence. And I think when the Court stands at the zenith of its authority and power is when it’s protecting those that are vulnerable in the community.

Brashear appeals his conviction.

IV

Brashear argues the trial court violated his right to a fair trial in failing to

sustain objections and strike testimony where multiple witnesses testified about

Brashear’s criminal history and prior imprisonment.7 We disagree.

We review the trial court’s cure of irregularities, such as improper testimony,

for an abuse of discretion. State v. Post, 118 Wn.2d 596, 620, 826 P.2d 172, 837

P.2d 599 (1992). “When a trial court’s exercise of its discretion is manifestly

unreasonable or based upon untenable grounds or reasons, an abuse of discretion

exists.” State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). “To determine

the prejudicial effect of an irregular occurrence during trial, we examine the

occurrence’s seriousness, whether it involved cumulative evidence, and whether

the trial court properly instructed the jury to disregard it.” State v. Thompson, 90

Wn. App. 41, 46, 950 P.2d 977 (1998).

7 The State argues we should decline review of this issue because Brashear

fails to assign error to the trial court’s decision on the motion for mistrial and analyzes his claim only within that context. Brashear assigns error to the witnesses’ references and argues the issue in his analysis. Brashear has properly raised the issue on appeal.

15 No. 86610-9-I/16

Before trial, the parties stipulated that Brashear was previously convicted of

an offense. Brashear moved to exclude evidence of his prior bad acts, and the

trial court stated if such evidence was to be elicited, “it should be done with an offer

of proof outside the presence of the jury.” Brashear argues that there were five

instances where witnesses provided testimony that violated the court’s order as to

the ER 404(b) evidence that was addressed during motions in limine.

First, when asked how he generally executes a warrant, Clark County

Sheriff’s Deputy Zachary Nielsen testified, “Every time that we do a search warrant,

we do a risk assessment, which would lead us to totaling points based upon

criminal histories, access to weapons, that kind of thing,” and “for this incident we

had SWAT serve the warrant based upon the risk to deputies.” Brashear objected

based on non-responsiveness, which the trial court overruled.

Second, Deputy Gonzalez testified he knew Brashear had “a criminal

history.” Outside the presence of the jury, Brashear asked the trial court to strike

that comment. The trial court stated there was no prejudice to Brashear and

refused Brashear’s request to instruct the jury to disregard the testimony because

it would have drawn unnecessary attention to the issue.

Third, the State asked Deputy Gonzalez to identify Brashear, to which

Brashear objected for lack of foundation. The State attempted to establish

foundation:

Q Have you seen Mr. Brashear before?

A In person, no.

Q How have you seen him?

16 No. 86610-9-I/17

A By recent mugshots in our RMS system.

[Defense counsel]: Objection as to the reference of mugshots and ask that it be stricken.

THE COURT: Well, counsel raised a foundational question. He can answer that question. Some public records?

[Deputy Gonzalez]: Yes, public records. I was able to obtain a photograph of [Brashear], which I did that night to try and figure out his identity.

Brashear requested a conversation outside the presence of the jury, in which he

raised both this and the earlier reference to criminal history, and asked for an

instruction striking the references from the record. The State argued “there is

going to be a stipulation that he has a crime of—a conviction for a serious offense,”

and “I don’t care if Your Honor wants to strike this particular thing from the record.

But for the record from the State’s understanding, there is no prejudice, because

the jury is [going to] hear information.” The trial court declined to strike the

objectionable references from the record.

Fourth, Mourer testified she was worried “[b]ecause [Brashear] said he

refused to go back to prison,” so she did not meet officers at the end of the

driveway. Brashear objected, and outside the presence of the jury, moved for a

mistrial. The trial court denied the motion for a mistrial and declined to act on

Brashear’s objection.

Fifth, Clark County Sheriff’s Detective Matthew Volker testified, “Initially, it

was unclear if the defendant and/or [Mourer] were [in] that residence, but there

was obviously concern for [Mourer’s] safety. So, there—the house was basically

cleared by our SWAT team, to make sure that nobody was inside.” Detective

17 No. 86610-9-I/18

Volker further testified that SWAT does not get dispatched every time officers go

to a case like that. Brashear did not object, and thus waived the issue.

Because of the trial court’s resistance to Brashear’s requests to order

improper comments stricken, in none of these instances can we say “the trial court

properly instructed the jury to disregard it.” Thompson, 90 Wn. App. at 46. Thus,

we confront an evidentiary record which the trial court allowed to go to the jury with

numerous references to other acts by Brashear that were obviously inadmissible

under ER 403 and ER 404(b), and that were excluded by the order in limine. The

reference to the SWAT response had no identified relevance to the action but

served only to improperly imply that Brashear was dangerous. Such references

were not akin to a response to a challenge by the defense to the reliability of the

State’s investigation of Brashear’s guilt. The first reference might have been

technically responsive to the State’s question about the procedure for executing a

warrant, but the question could not have alerted defense counsel to a forthcoming

reference to criminal history and the dangerousness implied in a SWAT response,

and the purpose of motions in limine and of stipulating to relevant criminal history

is to prevent such surprises from occurring. Allowing the references to the SWAT

response and then refusing to strike them was error. The reference to “recent

mugshots” was not cumulative given the age of the provable prior offense, as the

trial court recognized from rephrasing the inquiry into one about “public records.”

And the trial court again erred by refusing to strike the improper testimony.

While the question is a close one, we decline to order a new trial. Ultimately,

the question is whether the improper statements, when viewed against the

18 No. 86610-9-I/19

background of all the evidence, were so prejudicial that Brashear was denied a fair

trial. To the extent these references indicated a generic criminal history or having

been in prison, they were harmless in this case because the jury knew from jury

selection that the State was accusing Brashear of having a prior conviction and the

subsequent stipulation included in the final instructions indicated the prior

conviction. The only extent to which these statements implied more was the extent

to which they suggested more recent criminality. This was an implication at most,

and was never directly indicated. In light of the deferential standard of review, we

cannot say that the trial court’s decision to deny a mistrial amounted to an abuse

of discretion, and for the same reason the improper references do not justify a new

trial.

Brashear further argues that defense counsel was ineffective in failing to

contemporaneously object to all the improper testimony. To prevail on a claim of

ineffective assistance of counsel the defendant must demonstrate that: (1)

counsel’s representation was deficient, meaning it fell below an objective standard

of reasonableness based on consideration of all the circumstances; and (2) the

defendant was prejudiced, meaning there is a reasonable probability that the result

of the proceeding would have been different but for the challenged conduct.

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

(1984); McFarland, 127 Wn.2d at 334-35. If either prong has not been met, we

need not address the other prong. State v. Garcia, 57 Wn. App. 927, 932, 791

P.2d 244 (1990).

19 No. 86610-9-I/20

Brashear fails to establish there was a reasonable probability that the

outcome would have been different given the amount of evidence of Brashear’s

guilt regarding the second degree assault and unlawful possession of a firearm.

Moreover, the jury’s acquittal on four other counts indicates that it was not unduly

swayed against neutrally weighing the evidence and being willing to acquit.

Defense counsel was not ineffective in failing to object to the testimony.

V

Brashear argues the State engaged in prosecutorial misconduct by

commenting on his guilt during cross-examination. We conclude the misconduct

was not prejudicial.

During Brashear’s cross-examination, he claimed the investigation was

unfair because he was not given a chance to give his version of events. Later, he

admitted he was given an opportunity to give a statement, but he added that when

he offered to come in to the station, the police planned to have him arrested “no

matter what.” The State challenged this testimony by confronting Brashear with

the fact he had absented himself from the scene of at least one of Mourer’s claimed

assaults, and the following testimony occurred:

Q Why would he arrest you, if you did nothing wrong?

A I didn’t say I did nothing wrong. It’s obvious that there was an assault on [Mourer] that night. Not an assault, but she was hurt. She was harmed. She went to the hospital.

Q All right.

A And I was fearful that I was going to be railroaded.

20 No. 86610-9-I/21

Q Okay. So, don’t you think that it would be logical then, that you would want to leave with law enforcement? That you would want to be present when they show up at the house, so you don’t look guiltier then you are by not being there.

[Defense counsel]: Objection, Your Honor. Motion to strike.

THE COURT: Rephrase the question, please. Sustained.

(Emphasis added.) Outside the presence of the jury, Brashear moved for a mistrial

due to prosecutorial misconduct. The trial court denied the motion.

In a prosecutorial misconduct claim, the defendant bears the burden of

proving that the prosecutor’s comments were both improper and prejudicial. State

v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011). If the defendant objected

at trial, the defendant must show that the prosecutor’s misconduct resulted in

prejudice that had a substantial likelihood of affecting the jury’s verdict. State v.

Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009).

A prosecutor cannot use their position of power and prestige to sway the

jury and may not express an individual opinion of the defendant’s guilt,

independent of the evidence actually in the case. In re Pers. Restraint of

Glasmann, 175 Wn.2d 696, 706, 286 P.3d 673 (2012). Many cases warn of the

need for a prosecutor to avoid expressing a personal opinion of guilt. E.g., State

v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006); State v. Dhaliwal, 150 Wn.2d

559, 577-78, 79 P.3d 432 (2003); State v. Stith, 71 Wn. App. 14, 21-22, 856 P.2d

415 (1993).

Here, the prosecutor’s cross-examination was improper because it

embedded in the question the prosecutor’s own testimony that Brashear was

guilty. The State’s argument on appeal that it was harmless because the

21 No. 86610-9-I/22

prosecutor was about to argue in closing that Brashear was guilty is unacceptable

as a justification because the prosecutor was not entitled to argue with the witness

instead of pursuing proper cross-examination, and even in argument the

prosecutor would not have been entitled to offer their own opinion. However, the

misconduct was not prejudicial because it did not have a substantial likelihood of

affecting the jury’s verdict. Brashear did not answer the question, and the trial

court sustained the objection and instructed the prosecutor to rephrase. The jury

was instructed that the attorney’s statements were not evidence, and jurors are

presumed to follow the court’s instructions. In re Pers. Restraint of Phelps, 190

Wn.2d 155, 172, 410 P.3d 1142 (2018). We conclude this one instance of

misconduct does not rise to the level justifying appellate relief.

VI

Brashear argues the State failed to prove Mourer had actual authority to

consent to officers’ warrantless searches of Brashear’s property. We disagree.

A

The trial court held a CrR 3.6 hearing on Brashear’s motion to suppress.

The following testimony was elicited.

On October 27, 2021, Deputy Gonzalez was dispatched to Brashear’s

residence on a report of a possible assault. During the investigation, the deputy

took a report of Mourer’s injuries and learned Brashear and Mourer were

associated with the address. The property contained a locked metal gate between

the house and the road, and law enforcement had to walk around the gate to

access the property. Deputy Gonzalez testified that Mourer gave law enforcement

22 No. 86610-9-I/23

permission to search the property. Deputy Gonzalez further testified that Brashear

was not on the property at the time and “we were unable to locate him or get a hold

of him” to ask for his consent to search. Deputy Gonzalez took photographs later

marked as the State’s exhibits 7-18. He found the door to a house on the property

ajar, and took the photographs from standing outside. His trial testimony later

explained that the photographs generally showed broken items, scenes of

disturbance, and in several locations blood droplets.

On October 30, 2021, Deputy Gonzalez was dispatched to Brashear’s

property for an unknown medical problem. When he arrived at the metal gate,

Deputy Gonzalez walked past it because “when we showed up there, we could

hear two people talking or arguing with each other up the driveway,” and based on

his previous visit to the property, the deputy “had established probable cause to

arrest [Brashear].” Deputy Gonzalez testified that as they approached, Mourer

was walking down to them and told them that Brashear had departed. The deputy

was about 70 yards from the gate and he could “actually see the house itself when

I actually contacted [Mourer] because she had property that she was taking—she

had her belongings with her that were on the driveway.” Mourer had one or two

“[t]ub boxes with clothing, bags with clothing,” and “a backpack.” Officers did not

have a warrant to search the property. Deputy Gonzalez testified that “[t]he way

[Mourer] indicated, she pointed in the direction” Brashear had gone, and “it was

non-verbal to me that we could search the property for [Brashear].” Deputy

Gonzalez testified that he placed Mourer in an ambulance, and began searching

23 No. 86610-9-I/24

for Brashear with a K-9 unit. Officers did not locate Brashear, but did locate a

firearm on a bench outside of the vacant home located on the property.

Mourer testified that law enforcement asked for permission to search the

property on October 27 and she affirmatively gave them permission. Mourer

testified that on October 30, she was again contacted by law enforcement. Mourer

testified that on that day, she was hiding in the bushes and felt that she “couldn’t

get to the bottom of the property.” Mourer testified she did not go to the bottom of

the property because she was “in fear of the cops getting shot,” because Brashear

“said he’s not going back to prison. It’ll be a shootout before he goes back to

prison.” Mourer confirmed law enforcement asked for, and she gave, her

permission to search the property on October 30.

Mourer testified she had been staying at Brashear’s property “on and off for

months,” and would stay there five nights a week. Mourer testified she had

permission to spend the night at Brashear’s house because “[h]e brought me

there,” and “I don’t drive. So, that’s the only way I could get there is if he picked

me up.” Out of 30 days, Mourer would stay the night “at least a good 25” nights in

a row. Before October 27, Mourer had been staying at the property for over two

weeks. “[H]alf of [her] apartment” was at the property. Mourer had access to the

outside of the property, including access to the keys to Brashear’s truck, the house,

and the locked gate because the keys were kept in the truck. Mourer testified

Brashear “did hand me the keys one or more than one time. He told me what

every key belonged to,” and “[h]e said if something happened to him or he went

somewhere that this is—he told me what all the keys are for specifically and to if—

24 No. 86610-9-I/25

and I would have to give them to his son or something.” Mourer testified that she

stayed on the property occasionally when Brashear was not present.

Brashear testified Mourer did not live with him but instead lived in an

apartment that he helped her move into. Brashear testified he and Mourer dated

“off and on” for about seven months and Mourer would stay on the property “maybe

three nights a week.” Brashear testified that he “stayed the night at her apartment

I think four—four nights,” in the seven months they were dating.

B

Brashear challenges finding of fact 4, which states,

Mourer felt she could not meet law enforcement outside of the gate because she was fearful of the defendant. She felt she needed to hide in the bushes and that she couldn’t make it to the bottom of the property.

This finding is supported by Mourer’s testimony she did not go to the bottom of the

property because of fear of a shootout, and so hid in the bushes. Substantial

evidence supports this finding.

Brashear challenges finding of fact 5, which states,

Once on the property law enforcement heard two people arguing with each other. Mourer walked to them and said that the defendant had run off. She pointed in the direction that he ran and gave law enforcement permission to search the property for him. She had her belongings in the driveway, [which] included one or two tub boxes filled with clothing, bags of clothing, and a backpack. Mourer was placed into an ambulance and left the property.

Deputy Gonzalez testified that he heard “two people talking or arguing with each

other up the driveway,” and Mourer was walking down to them and told them that

Brashear had departed. Deputy Gonzalez testified that Mourer “pointed in a

25 No. 86610-9-I/26

direction” Brashear had taken, and Mourer testified law enforcement asked for

consent to search the property, and she said yes. Deputy Gonzalez testified

Mourer had one or two “[t]ub boxes with clothing, bags with clothing,” and “a

backpack,” and he walked her to the ambulance. Substantial evidence supports

this finding of fact.

Brashear challenges finding of fact 8, which states,

Prior to contact with law enforcement, Mourer had been living with the defendant at the 391st Street address. She and the defendant were in a dating relationship and Mourer had recently been living at the address for about three to four weeks. In total, lived at the address on and off for about seven months and had been staying there about three to five nights per week. Half of her belongings were on the property. The defendant had to transport her to the address as she did not drive. She had access to the property, including the keys to his truck, the house, and the gate. Mourer stayed on the property on occasion when the defendant was not present.

Mourer testified that prior to contact with law enforcement she had been staying at

the property. She had been staying there “on and off for months,” and would stay

there five nights a week. “[H]alf of [her] apartment” was at the property. Because

Mourer did not drive, Brashear drove her there. She had access to the outside of

the property and access to the keys to Brashear’s truck, the house, and the locked

gate. She also stayed on the property occasionally when Brashear was not

present. Substantial evidence supports this finding of fact.

C

Brashear challenges conclusion of law 1, which states,

Law enforcement entered the property under exigent circumstances given the nature of the dispatch and the nature of the assault from three days earlier.

26 No. 86610-9-I/27

Unchallenged finding of fact 1 states law enforcement was dispatched to

Brashear’s residence on October 27, 2021 on a report of a possible assault and

Deputy Gonzalez took a report of Mourer’s injuries. Unchallenged finding of fact

3 states Deputy Gonzalez was dispatched to the same location on October 30 for

an unknown medical problem.

Warrantless entry onto the premises in response to a 911 call, or a report

of someone needing assistance, is justifiable under the emergency aid exception.

E.g., State v. Johnson, 104 Wn. App. 409, 412, 16 P.3d 680 (2001) (domestic

violence report); State v. Leupp, 96 Wn. App. 324, 326, 980 P.2d 765 (1999) (911

hang up call); State v. Menz, 75 Wn. App. 351, 352, 880 P.2d 48 (1994) (domestic

violence report). The findings of fact support this conclusion of law.

Brashear challenges conclusions of law 3 through 6, which state,

3. Mourer gave law enforcement consent to search the property. 4. Mourer had actual authority to provide such consent as she was a co-habitant of the property. 5. Law enforcement were legally on the premises when they found the firearm because of Mourer’s consent. 6. The firearm is admissible.

Under article I, section 7 of the Washington Constitution, warrantless searches are

per se unreasonable. State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563

(1996), overruled on other grounds by Carey v. Musladin, 549 U.S. 70, 127 S. Ct.

649, 166 L. Ed. 2d 482 (2006). Article I, section 7 provides that “[n]o person shall

be disturbed in his private affairs, or his home invaded, without authority of law.”

One exception to the warrant requirement is consent to search, and it is the State’s

burden to establish that consent was lawfully given. State v. Thompson, 151

27 No. 86610-9-I/28

Wn.2d 793, 803, 92 P.3d 228 (2004). In search and seizure cases involving

cohabitants, Washington has adopted the common authority rule. Id. at 804.

Article I, section 7 of the Washington Constitution provides greater

protection of individual privacy than the Fourth Amendment. State v. Morse, 156

Wn.2d 1, 10, 123 P.3d 832 (2005). Under article I, section 7, whether a person

can consent to the search of a premises is based upon that person’s independent

authority to so consent and the reasonable expectation of their co-occupant about

that authority. “First, a consenting party must be able to permit the search in his

own right. Second, it must be reasonable to find that the defendant has assumed

the risk that a co-occupant might permit a search.” State v. Mathe, 102 Wn.2d

537, 543-44, 688 P.2d 859 (1984). “In essence, an individual sharing authority

over an otherwise private enclave inherently has a lessened expectation that his

affairs will remain only within his purview, as the other cohabitants may permit

entry in their own right.” State v. Leach, 113 Wn.2d 735, 739, 782 P.2d 1035

(1989). The test for the authority to consent is as follows:

The touchstone of the inquiry is that the person with common authority must have free access to the shared area and authority to invite others into the shared area. That access must be significant enough that it can be concluded that the nonconsenting co-occupant assumed the risk that the consenting co-occupant would invite others into the shared area. When a guest is more than a casual visitor and has “run of the house,” her lesser interest in the property is sufficient to render consent to search effective only as to the areas of the home “where a visitor would normally be received.”

Morse, 156 Wn.2d at 10-11 (internal quotation marks omitted) (quoting 4 W AYNE

R. LAFAVE, SEARCH & SEIZURE § 8.5(e), at 235 (4th ed. 2004))

28 No. 86610-9-I/29

Here, Mourer was “more than a casual visitor” as Brashear’s girlfriend and

her testimony supports that the part of the premises Brashear had made available

to her as her dwelling included at least the exterior grounds of the property where

the gun was found and the open door through which police viewed the interior of

the residence. Mourer and Brashear were in a relationship, and Mourer had been

living at Brashear’s residence on and off for about seven months, about three to

five nights a week. Mourer was a regular co-habitant on the property and thus had

independent authority to consent to a search of the property. It is reasonable to

conclude Brashear assumed the risk that Mourer would consent to a search, as he

allowed her to stay on the property while he was away, he allowed her access to

the house and gate keys, and the search arose out of her emergency call that he

had assaulted her at the property while she was residing there.

Brashear takes out of context the court’s discussion in Thompson to argue

that it was necessary to show not merely that Mourer had authority to allow these

particular searches, but that she had “equal control over the premises.” In

Thompson, Thompson lived on a trailer on part of his parents’ land, and stored

some items in a boathouse on another part of the land. 151 Wn.2d at 806.

Thompson’s father authorized a search of the boathouse. Id. at 799. Thompson

relied on the rule that if a cohabitant is present and able to object, the police must

“also” obtain the cohabitant’s consent to search—where a cohabitant is defined as

a person having “equal control over the premises.” Id. at 804-05. The court held

that by merely storing some items in the boathouse, Thompson did not enjoy equal

control as the owner and so it was not necessary to also obtain his consent to

29 No. 86610-9-I/30

justify a search of the boathouse. Id. at 805-06. But Thompson did not hold that

“equal” authority must exist to give consent for any search, and Morse contradicts

that assertion by acknowledging that a guest might have the ability to permit a

search of common areas but not private areas in which the guest was not normally

received. Morse, 156 Wn.2d at 11. As a regular inhabitant of the property as

Brashear’s girlfriend, Mourer had at least the authority described in Morse to allow

the searches of the property grounds in which she was normally received.

Conclusions of law 3 through 6 are supported by the trial court’s findings of

fact. Mourer had actual authority to consent to the search of the property.

VII

Brashear argues the errors are prejudicial in the aggregate. We disagree.

Cumulative error may warrant reversal, even if each error standing alone would

otherwise be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d

646 (2006). However, the doctrine does not apply where the errors are few and

have little or no effect on the outcome of the trial. Id. Because the errors are few

and had no effect on the outcome of the trial, we reject Brashear’s cumulative error

argument.

VIII

Brashear argues the trial court erred by failing to order and review a

presentence report authored by the department of corrections, which he claims

was required by the MHSA statute. We disagree.

Trial courts have “considerable discretion” when determining whether an

alternative sentence is appropriate. State v. Hender, 180 Wn. App. 895, 900-01,

30 No. 86610-9-I/31

324 P.3d 780 (2014). A court that fails to consider a requested alternative abuses

its discretion. State v. Grayson, 154 Wn.2d 333, 342, 111 P.3d 1183 (2005).

There are four eligibility requirements to be sentenced under the MHSA statute:

(a) The defendant is convicted of a felony that is not a serious violent offense or sex offense; (b) The defendant is diagnosed with a serious mental illness recognized by the diagnostic manual in use by mental health professionals at the time of sentencing; (c) The defendant and the community would benefit from supervision and treatment, as determined by the judge; and (d) The defendant is willing to participate in the sentencing alternative.

RCW 9.94A.695(1). The trial court may rely on mental health services reports to

determine whether a defendant had a serious mental illness. RCW 9.94A.695(2).

To assist the trial court in its determination, the department of corrections “shall”

provide a written presentence investigation report, however, the trial court “may

waive the production of this report if sufficient information is available to the court

to make a determination under subsection (4) of this section.” RCW 9.94A.695(3).

Subsection four reads, in relevant part, “After considering all available information

and determining whether the defendant is eligible, the court shall consider whether

the defendant and the community will benefit from the use of this sentencing

alternative.” RCW 9.94A.695(4).

In its denial of the MHSA request, the trial court referenced Brashear’s

pattern of “grooming and predation” and patterns of “isolation and financial

dependence and other dependence on him” which the trial court did not believe to

be accidental. The trial court further stated it believed it stood “at the zenith of its

authority and power when it’s protecting those that are vulnerable in the

31 No. 86610-9-I/32

community.” Moreover, the record contains no indication that at the time of

sentencing Brashear had ever been diagnosed with a serious mental illness

triggering eligibility for the sentencing alternative. Based on the trial court’s view

of the evidence, it concluded that the community would not benefit from granting

the MHSA request. The trial court did not abuse its discretion in declining to order

a presentence investigation report.

IX

Brashear argues the trial court erroneously imposed the VPA and the

community custody supervision fees. The State concedes remand is appropriate

to strike the imposition of both fees. We accept the State’s concession and remand

for both fees to be stricken as a ministerial matter.

X

In his statement of additional grounds, Brashear amplifies the above

arguments and further asserts numerous claims regarding prosecutorial

misconduct, judicial misconduct, and ineffective assistance of counsel. We have

considered Brashear’s arguments that the prosecutor engaged in misconduct by

(1) bringing to the trial court’s attention outside the presence of the jury Mourer’s

uncharged rape allegation with a request to instruct Mourer to not mention it during

her testimony, (2) allegedly violating conditions of the omnibus agreement by

producing new (unidentified) discovery, (3) amending the information to add an

additional charge of fourth degree assault before trial, (4) allowing Mourer to testify

with an allegedly active arrest warrant, and (5) allegedly misstating the evidence

of Mourer’s residential alternatives during sentencing, that the trial court erred by

32 No. 86610-9-I/33

(6) violating his right to a speedy trial, (7) reading the amended information to the

jury venire which included the State’s allegation that Brashear had a prior

conviction, (8) failing to take corrective action when a juror was overheard

discussing jury selection on the phone, and the parties agreed on taking no action,

(9) requesting that Deputy Gonzalez say “public records” instead of “recent

mugshots” (discussed above), (10) denying a motion for mistrial (discussed

above), (11) admitting evidence of Brashear’s suicidal threats but not admitting

evidence of Mourer’s “similar behavior,” (12) failing to rule on Brashear’s motion to

strike the “recent mugshots” comment where the court redirected the testifying

witness (discussed above), and (13) admitting Mourer’s statements to Detective

Volker made the day after the night of October 30-31, 2021, under the “excited

utterance” exception, and that Brashear’s counsel was ineffective in failing to (14)

contemporaneously object to an officer referring to Mourer as a “victim,” (15) timely

file a motion to sever counts (which was later withdrawn), (16) file a motion to

dismiss charges based on a speedy trial violation, (17) call Mourer’s mother to

testify, (18) subpoena ambulance records and Mourer’s phone records, (19)

decline a stipulation with the State,8 (20) object to the trial court violating

Brashear’s right to confer with counsel, (21) make the trial court aware of the

State’s alleged omnibus violations, (22) move for a new jury panel, (23) object to

the prosecutor’s alleged misstatements of Mourer’s residential alternatives during

8 Although not identified by Brashear, it is clear he is referring to the stipulation concerning his 2011 conviction.

33 No. 86610-9-I/34

sentencing, and (24) impeach Deputy Gonzalez and Mourer. We have concluded

that these claims lack merit.

We affirm Brashear’s conviction, and remand to allow the trial court to strike

the VPA and the community custody supervision fees as a ministerial matter.

WE CONCUR: