State of Washington v. Michael Dale Wright

• Court: Court of Appeals of Washington
• Decided: April 2, 2024
• Docket: 39310-1
• Status: Unpublished

Opinion

FILED APRIL 2, 2024 In the Office of the Clerk of Court WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

STATE OF WASHINGTON, ) ) No. 39310-1-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) MICHAEL DALE WRIGHT, ) ) Appellant. )

FEARING, C.J. — Michael Dale Wright appeals his conviction for a gross

misdemeanor violation of a no-contact order. He argues the State’s attorney engaged in

numerous instances of misconduct. We disagree and affirm.

FACTS

From August to November 2017, Michael Dale Wright and F.S., boyfriend and

girlfriend, lived together in Vancouver. On separation, a court entered a no-contact order

protecting F.S. from Wright as a result of violence imposed on her. Wright violated the

order in 2019, and the violation resulted in a criminal conviction. No. 39310-1-III State v. Wright

On March 25, 2021, F.S. received messages via the Facebook Messenger

application, which messages she believed Wright sent. The messages included pictures

of Wright, contained nicknames he gave her, followed Wright’s peculiar texting habits,

and mentioned information only Wright knew.

PROCEDURE

On July 1, 2021, the state of Washington charged Michael Dale Wright with a

felony violation of a no-contact order under former RCW 26.50.110(5), repealed by

LAWS OF 2021 ch. 215 sec. 170. The felony level charge resulted from two purported

earlier violations of the order. Two previous convictions raise the crime to a felony.

Former RCW 26.50.110(5).

At trial, the State presented testimony from F.S., who identified screenshots of the

Facebook messages she received. The defense cross-examined F.S. about her earlier

convictions for crimes of dishonesty. Michael Wright argued that, because of F.S.’s

dishonesty, she or a friend may have fabricated the messages.

At the close of the State’s case, Michael Dale Wright moved for a directed verdict

of acquittal on the ground that the State had not proved two prior convictions for

violating court orders. Wright highlighted that the State’s exhibits included only one

conviction for a domestic violence offense. The State withdrew the felony charge and

announced it would proceed only on a lesser included misdemeanor charge offense of

violation of a no-contact order. The lesser charge did not require two earlier convictions.

2 No. 39310-1-III State v. Wright

The judge dismissed the felony charge, but allowed the State to continue the prosecution

on a gross misdemeanor violation.

Michael Dale Wright called Michael Yasumoto, an expert in digital forensics, who

posited the theory that anyone with access to Wright’s Facebook account, be it through

physical access to his device or knowledge of his log-in password, could have sent the

Facebook messages to F.S. According to Wright, this expert testimony created a

reasonable doubt as to whether he violated the no-contact order. On cross-examination,

the State asked Yasumoto to identify the evidence that supported his theory and to name

who, other than Wright, sent the messages. Yasumoto indicated he lacked any evidence

to respond to either question.

In closing argument, the State emphasized that the jury must determine credibility

of witnesses. According to the State’s attorney, F.S. was credible despite her convictions

because they occurred twenty years ago. Even those who committed crimes, according to

the State, deserved the protection of the law. The State characterized as unreasonable the

theory that F.S. accessed Wright’s device and manufactured the messages. According to

the State, no evidence or motive supported fabrication. The State underscored that expert

witness Michael Yasumoto offered no evidence to support fabrication by F.S. The State

told the jury that a possibility that another may have sent the messages did not create a

reasonable doubt.

3 No. 39310-1-III State v. Wright

Michael Dale Wright, in closing, hammered that he, as the defendant, bore no

burden of proof, possessed no duty to produce evidence, and did not need to testify. His

silence could not be used against him. Wright’s counsel intoned that the State had failed

to conclusively prove who sent the messages. Thus, reasonable doubt required a “not

guilty” verdict. Defense counsel emphasized the lack of credibility of F.S.

On rebuttal, the State condemned any guilty verdict based on Michael Dale

Wright’s silence. The State directed the jury to only consider the evidence presented.

The State repeated the unreasonableness of the defense theory of fabrication of messages.

The State maintained that any defendant charged with a crime involving electronic

devices could advance the mere possibility that someone, even a terrorist, hijacked his

Facebook page.

During rebuttal, the State addressed the credibility of Michael Yasumoto, the

defense’s expert witness, by arguing credibility could not be asserted by someone, but

may only be attributed to them by others. The prosecution offered the example of the

Parkland police chief, who boasted, after the mass shooting at Marjory Stoneman

Douglas High School, to have provided “excellent leadership” when his performance

better measured his credibility. The State asked the jury not to discredit F.S. because of

“mistakes” from twenty years ago, especially given how often the victims of domestic

violence are the sole witnesses.

4 No. 39310-1-III State v. Wright

The jury returned a verdict of guilty for the gross misdemeanor charge of violating

a no-contact order.

LAW AND ANALYSIS

On appeal, Michael Dale Wright asserts the State’s attorney engaged in

misconduct when questioning Wright’s defense expert and when delivering the closing

statement. He also hypothetically raises the specter of being subjected to double jeopardy

in the event we reverse his conviction.

Prosecutorial Misconduct

Michael Dale Wright contends the State’s attorney engaged in flagrant misconduct

by interjecting irrelevant and inflammatory topics, repeatedly reversing the burden of

proof, misstating the jury’s role, and encouraging the jury to convict on an improper

basis. Prosecutorial misconduct can deprive a defendant of his constitutional right to a

fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984); State v.

Charlton, 90 Wn.2d 657, 664-65, 585 P.2d 142 (1978). To succeed on such a claim, the

accused must show the prosecutor’s conduct was both improper and prejudicial, looking

at the context of the entire record and the circumstances at trial. State v. Thorgerson, 172

Wn.2d 438, 442, 258 P.3d 43 (2011); State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126

(2008) (plurality opinion). To prove prejudice, the defendant must show, by a substantial

likelihood, the misconduct affected the jury’s verdict. State v. Thorgerson, 172 Wn.2d

438, 442-43 (2011). Additionally, when, as here, the defendant did not object to the

5 No. 39310-1-III State v. Wright

misconduct at trial, he must further prove the prejudice could not have been remedied by

a jury instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).

Burden of Proof

We first address Michael Dale Wright’s assertion that the prosecution shifted the

burden of proof to him. In a criminal case, the prosecution possesses the burden to prove

its case beyond a reasonable doubt. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653

(2012). Conversely, a defendant bears no burden of proof, nor a duty to produce

evidence. State v. Montgomery, 163 Wn.2d 577, 597, 183 P.3d 267 (2008). Should a

prosecutor suggest otherwise and shift the burden, the State’s attorney commits

misconduct. State v. Gregory, 158 Wn.2d 759, 859-60, 147 P.3d 1201 (2006).

Nevertheless, the State’s assertion that the defense’s evidence is lacking does not

constitute prosecutorial misconduct or shift the burden. State v. Jackson, 150 Wn. App.

877, 885-86, 209 P.3d 553 (2009). While a prosecutor cannot argue that a defendant’s

failure to present evidence forms a reason to convict, the State’s attorney may emphasize

a lack of evidentiary support for a defendant’s theory of the case. State v. Jackson, 150

Wn. App. 877, 885 (2009).

Michael Wright argues his prosecutor repeatedly reversed the burden of proof and

production during the cross-examination of defense expert witness, Michael Yasumoto,

and during closing argument. He first complains the prosecutor shifted the burden during

6 No. 39310-1-III State v. Wright

cross-examination when asking three questions that implied the defense bore the burden

of supplying evidence:

(1) Do you have any evidence that somebody else sent these texts? (2) So you’re just saying that it’s a possibility that somebody could have? (3) But who that person is, you don’t know?

We disagree that the questioning shifted the burden of proof.

Michael Dale Wright removes the three questions from their context. Michael

Yasumoto, a digital forensic expert, testified on direct examination that the State could

not definitively determine that Wright sent the offending Facebook messages. Yasumoto

opined that anyone with access to the account could have sent the messages. Excluding

questioning about Yasumoto’s qualifications as a digitalologist, the direct examination

consisted of five questions.

In response, the State asked Michael Yasumoto to identify the facts behind his

conclusions and any evidence showing someone else sent the messages. As mentioned

above, prosecutors may underscore a lack of evidence supporting an alternative theory.

The State asked the questions to emphasize that Yasumoto hinged his opinions on

speculation, a permissible, if not important, method of cross-examination.

Michael Dale Wright attempts to analogize his prosecuting attorney’s statements

to comments uttered in State v. Fleming, 83 Wn. App. 209 (1996), wherein a prosecutor

argued that, to find the defendant not guilty, the jury must find the victim lied or was

7 No. 39310-1-III State v. Wright

confused about being raped. The Fleming prosecutor further asserted that the defense

would have presented evidence if the victim lied or fantasized the rape. This court ruled

the statements to be misconduct because they shifted the burden and fundamentally

invaded the defendants’ right to silence. We discern no analogy. Wright’s prosecutor

never suggested Wright must produce evidence. The prosecuting attorney only attacked

as speculative evidence offered by Wright.

Michael Dale Wright’s appeal parallels the decision of State v. Jackson, 150 Wn.

App. 877 (2009). The Jackson prosecutor argued a lack of evidence to corroborate the

defense’s theory. The State’s attorney asked the jury to compare the State and defense’s

evidence to evaluate the credibility of witnesses. This court held that the statements did

not shift the burden because the comments did not imply that the defendant needed to

provide evidence or that the jury should convict because only one witness testified for the

accused. The comments of Wright’s prosecuting attorney were one step further removed.

The prosecutor only questioned an expert on what evidence the expert witness based his

conclusions.

Michael Dale Wright argues the prosecutor again shifted the burden during closing

argument by posing:

But who is this person? Where is this terrible person, [w]e get the expert who tells us it’s possible that somebody else could have done it. Couldn’t tell us who.

8 No. 39310-1-III State v. Wright

RP at 183. Later, according to Wright, the prosecutor shifted the burden a third time in

rebuttal when uttering:

[The expert] couldn’t tell us who [sent the texts]. . . . Who would do that? Where is this straw person coming from? What’s their motive?

RP at 188-89. The comments did not shift the burden of proof but rather identified a lack

of evidentiary support for the defense’s theory.

Even if we aggregate the individual questions and statements of the prosecuting

attorney, we reach the same result. The prosecutor did not engage in blatant misconduct

similar to the Fleming prosecutor, but merely highlighted a lack of evidence for an

alternative theory, much like the prosecuting attorney in Jackson.

Role of the Jury

Michael Dale Wrights argues the prosecutor misstated the role of the jury when

commenting that the jury held the burden to determine credibility of witnesses. The

prosecuting attorney intoned:

You are the sole judges of credibility. You are the ones that decide who to believe and who not to believe. And in many ways, that is the jurors’ duty. That’s what were asking you to do. You know, it’s not a situation where he said, she said, throw up your hands, we can’t decide. We’re asking you to make that call.

RP at 179-80. Wright argues the reference to “he said, she said” implied the jurors

needed to choose whether the victim, F.S., told the truth. He analogizes to the State’s

attorney’s statements in State v. Fleming.

9 No. 39310-1-III State v. Wright

The argument of Michael Dale Wright’s prosecuting attorney echoes the proper

remarks uttered by the attorney in State v. Jackson, not State v. Fleming. A prosecutor

remains in bounds when telling the jury it is the “sole judge of credibility” and to

“compare the state and defense evidence.” See State v. Jackson, 150 Wn. App at 885-86.

Wright’s prosecutor did not tell the jury it must find F.S. to be lying to acquit Wright.

Irrelevant and Inflammatory Topics

Michael Dale Wright argues the prosecutor committed misconduct by inserting

irrelevant and inflammatory topics. He complains that the prosecutor compared him to a

terrorist and likened Michael Yasumoto to the Parkland chief of police.

Michael Dale Wright’s prosecutor mentioned terrorism to demonstrate

unreasonableness when arguing about the use of a phone. The prosecuting attorney

remarked:

You could say that about almost any crime. You could say, you know, calls in terrorist threats that come from somebody’s phone, call in, I mean the mere possibility doesn’t raise a reasonable doubt.

RP at 189. Michael Dale Wright’s prosecutor did not compare him to a terrorist.

We question the relevance of the prosecutor’s reference of the Parkland police

chief, but the reference was not prejudicial. The prosecutor did not imply the jury should

convict to prevent school shootings, but suggested that Michael Yasumoto was not

credible simply because he claimed to be credible or qualified.

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Improper Basis

Michael Dale Wright alleges the prosecutor impermissibly encouraged the jury to

convict him to protect a category of vulnerable victims. We disagree. Wright sought an

acquittal primarily by contending F.S. lacked credibility because of a criminal history.

The State’s attorney rebutted the argument by legitimately contending that the criminal

law protects even those who earlier perpetrated crimes. The prosecutor did not ask the

jury to send any message to any group of people or on behalf of any category of

individuals.

Michael Dale Wright attempts to analogize his prosecutor’s statements to State

arguments in State v. Thierry, 190 Wn. App. 680, 360 P.3d 940 (2015) and State v.

Smiley, 195 Wn. App. 185, 379 P.3d 149 (2016). In State v. Thierry, a prosecution for

child rape and molestation, the prosecutor argued that, if the jury deemed the child victim

not credible, the law might as well announce that the word of a child cannot convict and

the State should end prosecuting child sex abuse cases. This court held the argument to

constitute misconduct because the prosecutor told the jury to convict in order to protect

child victims.

Michael Dale Wright’s prosecutor did not issue an “if, then” statement. The

State’s attorney only argued that F.S.’s testimony was credible even with her convictions

from twenty years ago.

11 No. 39310-1-III State v. Wright

In State v. Smiley, the prosecuting attorney uttered a similar statement: “the State

might as well give up prosecuting sex abuse cases if the victim’s word was not enough

for conviction.” State v. Smiley, 195 Wn. App. 185, 194 (2016). This court cited Thierry

when concluding the statement was misconduct. The State implied that the jury would

place other children in danger if it acquitted the accused. Michael Dale Wright’s

prosecutor did not suggest to the jury that those with a criminal record would henceforth

be susceptible to crime.

Ineffective Assistance of Counsel

Michael Dale Wright contends his trial counsel performed ineffectively when

failing to object to the prosecuting attorney’s misconduct. Because we discern no

misconduct, we need not address this contention.

Double Jeopardy

Michael Dale Wright argues that, assuming this court reverses his conviction and

remands for a new trial, the State may only retry him on the gross misdemeanor charge of

violation of a no-contact order. Stated differently, the State may not proceed on the

initial felony charge. Because we do not remand for a new trial, we need not address this

double jeopardy concern.

CONCLUSION

We affirm Michael Dale Wright’s conviction for a gross misdemeanor of violating

12 No. 39310-1-III State v. Wright

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.

_________________________________ Fearing, C.J.

WE CONCUR:

______________________________ Pennell, J.

______________________________ Cooney, J.