FILED AUGUST 14, 2025 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STATE OF WASHINGTON, ) No. 39959-1-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) MICHAEL E. VASSAR, ) ) Appellant. )
MURPHY, J. — A jury found Michael Vassar guilty of violating a no-contact order.
On appeal, Vassar claims (1) the trial court erred by failing to suppress evidence that had
been gathered during a pretextual traffic stop, and (2) the prosecutor committed
misconduct during closing argument.
We disagree and affirm.
FACTS
Traffic stop
Michael Vassar was subject to a protection order restricting contact with Latonya
Lovelace.
Spokane County Sheriff Deputy Ryan Trim, who was on patrol with a field
training officer, observed a Dodge Durango with a faulty rear turn signal and initiated a No. 39959-1-III State v. Vassar
traffic stop. Trim identified the driver as Michael Vassar and the passenger as Latonya
Lovelace. In communicating with dispatch, Trim was notified of a no-contact order
between Vassar and Lovelace. During the officer contact, Vassar admitted that he knew
the order was in place. Vassar was subsequently arrested for violating the no-contact
order.
Motion to suppress
Vassar alleged that the traffic stop was unlawful. He filed a CrR 3.6 motion to
suppress all evidence obtained during the stop. The only witness to testify during this
hearing was Deputy Trim. Trim stated that the traffic stop was initiated after he observed
the rear turn signal was dim and blinking significantly faster than the 60 to 120 blinks per
minute allowed by law. It was nighttime and raining at the time of the stop. The side
windows of the vehicle were tinted and the rear windows, which were not tinted, were
blocked by items inside the vehicle. Given the nighttime darkness, the tinted windows,
and the items obstructing a view into the interior of the vehicle, Trim could not see into
the vehicle to view the occupants prior to stopping the vehicle.
When contact was made, the passenger, Latonya Lovelace, who was the registered
owner of the vehicle, stated to Deputy Trim that she knew the rear blinker needed to be
fixed. In response to questions posed during the CrR 3.6 hearing, Trim testified that he
was not able to see inside the vehicle to know the race or gender of either Vassar or
2 No. 39959-1-III State v. Vassar
Lovelace prior to initiating the traffic stop. He was also unaware of any pending
investigations or known criminal activities at the time that he initiated the stop. Trim
testified that he did not have a motive or any other reason to conduct the traffic stop,
beyond the faulty rear turn blinker.
Vassar did not testify at the hearing but did submit a written declaration that was
appended to his motion to suppress. Vassar presented a version of events that included
turning into a church parking lot, traveling 360 degrees to then face the street and that the
law enforcement officer looked at Vassar, drove past Vassar, and then made a left turn
into the same church parking lot. According to Vassar, the officer entered the church
parking lot from the back, parked, and watched Vassar’s vehicle. Vassar further declared
that the passengers in his vehicle exited, with Vassar then leaving the parking lot and
turning right, and the officer following thereafter. Vassar stated the officer activated the
police car’s lights to get a car in between them to move. Then, the officer sped up to
catch Vassar to initiate the stop.
At the conclusion of Deputy Trim’s hearing testimony, counsel moved to
argument on the motion to suppress. Defense counsel started their argument by indicating
they would be referring to Vassar’s declaration during argument. Counsel pointed out
that Vassar’s declaration recited a different version of events than those recounted by
Deputy Trim at the hearing. The trial court confirmed that it had read Vassar’s
3 No. 39959-1-III State v. Vassar
declaration and noted that defense counsel did not ask Deputy Trim during cross-
examination about any information contained within the declaration.
The trial court denied Vassar’s motion to suppress. During its oral ruling, the trial
court identified case law that upholds as lawful traffic stops conducted for technical
violations, such as having a defective turn signal light. In this instance, the trial court
found it credible that there was no reason for the traffic stop other than the violation of a
regulation. The trial court went on to address Vassar’s allegation that this stop was
pretextual. The court also addressed Vassar’s declaration, noting again that defense
counsel did not ask Deputy Trim any questions about the declaration, and because Vassar
exercised his right not to testify, there was no opportunity to cross-examine Vassar on the
contents of his declaration. As such, the trial court did not give much weight to the
declaration.
In addition, the trial court addressed the defense’s argument that referred to the
Supreme Court’s decision in State v. Sum, 199 Wn.2d 627, 511 P.3d 92 (2022). The court
quoted language from Sum that “‘[i]t’s no secret that people of color are disproportionate
victims of law enforcement scrutiny’” but, in this instance, the court “[did not] find any
4 No. 39959-1-III State v. Vassar
facts that would support that that occurred.” Rep. of Proc. (RP) (July 27, 2023) at 52.1
The trial court further stated that “there’s nothing, no facts, nothing to support that
[race] was related to this specific stop.” RP (July 27, 2023) at 52. The court commented
that it had reviewed the “body cam” video and acknowledged that Deputy Trim’s conduct
during the traffic stop was “extremely professional.” RP (July 27, 2023) at 45.
The trial court later entered findings of fact and conclusions of law that state in
relevant part:
FINDINGS OF FACT: .... 4. At about 3:44 a.m., Deputy Trim spotted a Dodge Durango driving on the road. He spotted a Dodge Durango making a turn and noticed that the rear turn signal was dim and blinking at a faster than normal rate. Specifically, Deputy Trim noted that the light appeared to be blinking faster than two times per second. He pulled the Durango over based upon the faulty turn signal; .... 13. Deputy Trim could not see Mr. Vassar prior to stopping him. It was dark outside at the time of the traffic stop. The Durango had tinted, rear passenger windows and the rear window was blocked by items in the rear of the Durango, preventing the deputy from seeing Mr. Vassar. Thus, the deputy was unaware of Mr. Vassar’s race or even his gender before the traffic stop;
1 The quote from Sum is slightly different from what was stated by the trial court in its oral ruling, with the Sum language being: “When it comes to police encounters without reasonable suspicion, ‘it is no secret that people of color are disproportionate victims of this type of scrutiny.’” 199 Wn.2d at 644 (quoting Utah v. Strieff, 579 U.S. 232, 254, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016) (Sotomayor, J., dissenting)).
5 No. 39959-1-III State v. Vassar
14. Deputy Trim denied that he pulled Mr. Vassar over because of his race, or because of Ms. Lovelace’s race. He further denied pulling the Durango over for any other reason than the turn signal violation; .... 16. The testimony of Deputy Trim was credible; 17. There is no evidence of Deputy Trim stopped the Durango on a pretext to conduct an investigation unrelated to the traffic violation or to conduct an otherwise unauthorized, warrantless search of a person or of any property; .... CONCLUSIONS OF LAW: .... 3. Deputy Trim thus had a lawful basis to stop based upon reasonable suspicion and probable cause that he had witnessed a turn signal violation; 4. From both an objective and subjective standpoint, the stop in this case was reasonable, authorized by law, and not pretextual; 5. This case is distinguishable from the case cited by the defense, State v. Prado, 145 Wn. App. 646, 186 P.3d 1186 (2008) because that case involved a stop based upon the defendant’s driving, rather than the equipment on the defendant’s car. In Prado, the defendant’s car crossed slightly over the lane divider slightly and nothing about his vehicle or his driver presented a danger to others. In this case, the violation involved defective equipment. The traffic law at issue in Prado was not black and white in that it only required the driver to remain in a certain lane “as nearly as practicable.” The law at issue here, on the other hand, is black and white in that it sets forth specific requirements for a turn signal to be legal. The Durango was not in compliance with the regulation requiring turn signals to blink no more than 120 times per minute; 6. The facts do not support a legal conclusion that there was a race- based motive for the traffic stop.
Clerk’s Papers (CP) at 167-70 (boldface omitted).
6 No. 39959-1-III State v. Vassar
Trial
Prior to jury selection, defense counsel reiterated an intent to rely on the defense
of necessity and included a necessity instruction in their proposed jury instructions.
At trial, during its case-in-chief, the State introduced testimony from Latonya
Lovelace and Deputy Trim. Michael Vassar testified during the defense’s case-in-chief.
Testimony relevant to this appeal includes the following:
Latonya Lovelace
On the evening of the traffic stop, Lovelace drove herself, in a Dodge Durango
that she owned, to a casino in Airway Heights. She stayed at the casino for several hours
and did not meet anyone. As Lovelace was leaving, two friends approached, and asked
her for a ride to Spokane Valley. Lovelace identified her friends by their first names but
testified she did not know their last names. Lovelace agreed to give her friends a ride but
felt uncomfortable driving after it began raining. The rain made her nervous because she
did not have her glasses, which she needed to drive at night. Due to her nervousness, she
drove to Vassar’s residence. Regardless of her awareness of the no-contact order,
Lovelace knocked on Vassar’s door and asked Vassar to give her friends a ride home.
Although Vassar initially expressed that did not want to drive Lovelace’s friends, he
eventually agreed.
7 No. 39959-1-III State v. Vassar
Lovelace testified that it was a 20-minute drive from the casino to where her
friends lived in Spokane Valley. She denied having ever driven without her glasses. She
did not have money for an Uber to help her friends get home. Her friends did not have
driver’s licenses. There was no power steering in the Dodge Durango. She recently
learned she was pregnant. Lovelace stayed at the casino because she was winning money
but later lost the money after continuing to gamble. She was not worried about driving
herself home without her glasses because she could get home without needing to read
signs. She agreed to give her friends a ride home because she thought she could reach out
to another friend to help, but when she could not contact that friend, she went to Vassar.
Lovelace did not decline to give her friends a ride when she encountered various issues
because her friends had already given her gas money that she had gambled away.
Lovelace explained that when she was leaving the casino, her friends approached her to
ask for a ride, and that is when they gave her the money, and yet it was after this that she
gambled away the gas money they had given her.
After dropping off Lovelace’s friends, on the return drive, Vassar and Lovelace
were stopped by Deputy Trim. Vassar and Lovelace were the only people in the vehicle
at the time of the traffic stop. Lovelace confirmed that she did not tell Deputy Trim she
did not have her glasses, which she needed to drive at night, nor that she had asked
Vassar to drive.
8 No. 39959-1-III State v. Vassar
Deputy Ryan Trim
During the traffic stop, Deputy Trim asked Vassar for his driver’s license,
registration, and proof of insurance. Vassar did not have his driver’s license. Lovelace
volunteered her driver’s license and stated that the vehicle was hers. Dispatch notified
Deputy Trim of a protection order between Lovelace and Vassar, with that order e-mailed
to Trim so he could read it himself.
During the traffic stop, Vassar told Deputy Trim something along the lines of how
“they were coming from the casino” and “something about taking some friends from the
casino.” RP (Aug. 15, 2023) at 200, 212. Vassar told Deputy Trim he knew there was a
no-contact order in place prohibiting his contact with Lovelace. Vassar did not mention
anything about Lovelace being pregnant, nor about Lovelace needing a ride and not
having her glasses, nor that she did not have any money or anyone else to turn to other
than Vassar.
Michael Vassar
Vassar drove Lovelace and her friends because he was worried about Lovelace’s
safety due to it being dark outside and that Lovelace did not have her glasses. He could
not afford an Uber. Although Vassar knew there was a no-contact order, he agreed to
drive Lovelace.
9 No. 39959-1-III State v. Vassar
When asked why he told Deputy Trim that he was coming from the casino, Vassar
replied, “[b]ecause that’s where I was going.” RP (Aug. 15, 2023) at 221. The State
further questioned Vassar regarding why he told Trim he was coming from the casino:
Q [PROSECUTOR] That’s where you were coming from? A That’s not where I was coming from, but that was basically, you know, the I guess I could say I was mapped out for where it all started. The whole reason why I was behind was the first place because she had friends that came from the casino. She was coming from the casino. She stopped by, and she had asked me could I help due to, you know, she didn’t have any glasses, and it was dark, and it was raining. Plus she doesn’t have power steering in the Durango, so it’s a bit tough to drive. Q But why did you say that you were coming from the casino to Deputy Trim? Let me say it more specifically I guess. Why did you say we were coming from the casino, including yourself in that statement? A First thing came to mind I mean. Although I wasn’t with them at the casino, I was at home.
RP (Aug. 15, 2023) at 221-22.
Jury instructions
Vassar took the position at trial that it was necessary for him to violate the
no-contact order to minimize or prevent a greater harm to Latonya Lovelace. Vassar
proposed, and received, the following instruction on a necessity defense:
Necessity is a defense to a charge of violation of a court order if: (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm; (2) harm sought to be avoided was greater than the harm resulting from a violation of the law; (3) the threatened harm was not brought about by the defendant; and
10 No. 39959-1-III State v. Vassar
(4) no reasonable legal alternative existed. The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true. If you find the defendant has established this defense, it will be your duty to return a verdict of not guilty to this charge.
CP at 201 (Instr. 10)
State’s closing argument
During closing argument, the prosecution stated the following:
Mr. Vassar was not obliged to drive her anywhere. He could have said no. He could have arranged for one of his own friends or somebody else to do something or he could have simply said you folks need to find your own way home. Ms. Lovelace has already said that her house is close enough to my house. She can get there safely. She could have done so without placing herself in any danger whatsoever. This wasn’t the only alternative that was available to these folks. The next question for you, though, is is this affirmative defense even true? Should you take it at face value or is it more likely that what actually happened that night is that Ms. Lovelace and Mr. Vassar were at that casino there together, they were there voluntarily, that that’s why Mr. Vassar said to the police right when he was contacted we’re coming from the casino. We’re dropping off some friends. You saw him struggle with that question on the stand and it’s a very simple question, and you are allowed when you’re assessing the credibility of a witness to look at the way they testify about something on the stand. You’re, also, allowed to consider the fact that Mr. Vassar was previously convicted of a theft charge in assessing his credibility. Under the law, crimes of theft, crimes of dishonesty are considered admissible so that a jury can weigh them against the defendant’s credibility and see if that crime bears on that defendant’s ability or willingness to say something that’s truthful, and that’s what the instruction on theft is all about.
11 No. 39959-1-III State v. Vassar
I’d suggest to you that what’s going on here is Mr. Vassar is trying to put the best face on this that he possibly can, but that what actually happened was he and Ms. Lovelace were on a date. They were out. They were having fun. The night got late. That’s why Ms. Lovelace wasn’t worried about having her glasses. She knew he was going to drive her. That’s why she didn’t worry about gambling for hours and letting it get dark outside because he was with her, and she knew he was going to drive, and that’s why she had no concerns about her ability to get home. I’ll suggest to you that the entire story about she and her friends is something that’s made up after the fact to try to explain away or give a good reason for the violation of this no contact order.
RP (Aug. 15, 2023) at 243-45 (emphasis added).
Verdict
The jury found Vassar guilty of violating the no-contact order.
ANALYSIS
CrR 3.6 motion to suppress evidence
Vassar assigns error to the trial court’s denial of his CrR 3.6 motion to suppress
evidence, specifically to the trial court’s findings of fact 4, 13, 14, 16, and 17 as not
supported by substantial evidence, and challenging conclusions of law 3, 4, 5, and 6. 2
We disagree.
2 While Vassar asserts that the trial court’s findings of fact are not supported by substantial evidence, his briefing argues only that critical facts contained in Vassar’s declaration were contrary to the trial court’s findings of fact, not that no substantial evidence supported the specific findings of fact where Vassar assigned error.
12 No. 39959-1-III State v. Vassar
“We review the denial of a motion to suppress for substantial evidence supporting
the trial court’s findings of fact and whether the findings of fact support the trial court’s
conclusions of law, and we review the trial court’s conclusions of law de novo.” State v.
Teulilo, 1 Wn.3d 595, 602-03, 530 P.3d 195 (2023); see also State v. Arreola, 176 Wn.2d
284, 291, 290 P.3d 983 (2012). Substantial evidence exists when there is a sufficient
quantity of evidence to persuade a fair-minded, rational person of the truth of the finding.
State v. Anderson, 200 Wn.2d 266, 286, 516 P.3d 1213 (2022). “The trial court is tasked
with resolving issues of credibility and weighing evidence, and we give great deference
to its factual findings.” State v. Taylor, 29 Wn. App. 2d 319, 328, 541 P.3d 1061, review
denied, 3 Wn.3d 1003, 549 P.3d 116 (2024).
Findings of fact from the traffic stop
Our state constitution “protects the ‘private affairs’ of each person from
disturbance imposed without ‘authority of law.’” Arreola, 176 Wn.2d at 291 (quoting
WASH. CONST. art. I, § 7). The general rule in Washington is that warrantless searches are
per se unreasonable. State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999). There
are exceptions to the warrant requirement, and it is the burden of the State to prove that
an exception to the warrant requirement applies. See State v. Hendrickson, 129 Wn.2d 61,
70, 917 P.2d 563 (1996). With a traffic stop, the question is “whether the fact that
someone has committed a traffic offense, such as failing to signal or eating while driving,
13 No. 39959-1-III State v. Vassar
justifies a warrantless seizure which would not otherwise be permitted absent that
‘authority of law’ represented by a warrant.” Ladson, 138 Wn.2d at 352 (footnote
omitted).
“A pretextual traffic stop occurs when a police officer relies on some legal
authorization as ‘a mere pretext to dispense with [a] warrant when the true reason for the
seizure is not exempt from the warrant requirement.’” Arreola, 176 Wn.2d at 294
(quoting Ladson, 138 Wn.2d at 358). “When determining whether a given stop is
pretextual, the court should consider the totality of the circumstances, including both the
subjective intent of the officer as well as the objective reasonableness of the officer’s
behavior.” Ladson, 138 Wn.2d at 358-59.
Deputy Trim testified he performed the traffic stop because the rear turn signal
was dim and blinking significantly faster than the authorized 60 to 120 blinks per minute.
Trim testified it was nighttime, the windows on the vehicle were tinted, and the rear
windows were blocked by items. It was Trim’s testimony that he could not see into the
vehicle, and, therefore, could not see the gender or race of the people inside prior to the
stop. Deputy Trim testified there was no reason for the traffic stop other than the faulty
turn signal. There was no open investigation or criminal activities associated with the
vehicle. There was no motive for the traffic stop other than the faulty turn signal. The
trial court found Deputy Trim credible.
14 No. 39959-1-III State v. Vassar
We disagree with Vassar’s assertion that the trial court erred “in omitting from its
findings of fact and conclusions of law critical evidence contained in Mr. Vassar’s signed
declaration regarding specific details leading up to the traffic stop.” Br. of the Appellant
at 4.
As an appellate tribunal, we are not entitled to weigh either the evidence or the credibility of witnesses even though we may disagree with the trial court in either regard. The trial court has the witnesses before it and is able to observe them and their demeanor upon the witness stand. It is more capable of resolving questions touching upon both weight and credibility than we are.
In re Welfare of Sego, 82 Wn.2d 736, 739-40, 513 P.2d 831 (1973). The trial court
discounted Vassar’s declaration because defense counsel opted not to ask Deputy Trim
any questions regarding the alleged facts from Vassar’s declaration and because Vassar
was not subject to cross-examination on the declaration. This court declines to make a
credibility determination in light of the trial court being in a better position to resolve
questions that go to weight and credibility of evidence. It was not error for the trial court
to give little weight to unchallenged statements in Vassar’s written declaration that were
not subject to cross-examination.
There is a sufficient quantity of evidence in the record to persuade a fair-minded,
rational person of the truth of findings of fact 4, 13, 14, 16, and 17. See State v. Hill,
123 Wn.2d 641, 644, 870 P.2d 313 (1994).
15 No. 39959-1-III State v. Vassar
Conclusions of law
Vassar argues the trial court erred in its conclusions of law 3, 4, 5, and 6, claiming
Deputy Trim (1) lacked a reasonable suspicion for the traffic stop, (2) the traffic stop was
pretextual, and (3) the evidence supported racial motivations for the traffic stop. We
disagree.
Reasonable suspicion
Deputy Trim had a reasonable articulable suspicion of a traffic infraction to
perform the traffic stop based on the rear turn signal blinking more than 120 times
per minute. WAC 204-21-060(1)(a) states that “[t]urn signal lamps visible to approaching
or following drivers must . . . [f]lash at a rate of sixty to one hundred twenty
flashes per minute.” Violations of WAC 204-21-060 are traffic infractions. See
RCW 46.37.010(1)(b).
Vassar relies on Prado, 145 Wn. App. 646, to argue that even if his turn signal
was blinking more than 120 times per minute, the traffic stop was unconstitutional
because law enforcement cannot execute an investigatory stop for a minor traffic
violation without other safety concerns. Prado is distinguishable from this case. The
vehicle in Prado crossed an eight-inch white line dividing the exit lane from the adjacent
lane by approximately two tire widths for one second. See 145 Wn. App. at 647.
Benjamin Prado was subsequently arrested for driving under the influence. Id. The
16 No. 39959-1-III State v. Vassar
pertinent statute in Prado states, “‘[a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from such lane until the
driver has first ascertained that such movement can be made with safety.’” Id. at 648
(quoting RCW 46.61.140(1)). It was held in Prado that a vehicle crossing over a lane
once for a second by two widths does not, without more, constitute a traffic violation
justifying a stop by a police officer. Id. at 647. It was reasoned that the legislature’s use
of the language “as nearly as practicable” demonstrated a recognition that brief incursions
over the lane lines will happen and that crossing a line briefly does not justify a belief
that Prado’s vehicle was operated unlawfully. Id. at 648.
Here, the traffic stop involved defective equipment. As the trial court pointed out,
the statute at issue in Prado was equivocal in that it required the driver to remain in a
certain lane “as nearly as practicable.” Id. at 648. Conversely, in this case, the traffic
regulation sets out the required flash rate at 60 to 120 times per minute. See Arreola,
176 Wn.2d at 289-90 (altered exhaust was the actual reason for the stop). The vehicle
Vassar was operating did not comply with the regulation that requires a turn signal to
blink no more than 120 times per minute. Moreover, Ms. Lovelace, without being asked,
offered that she was already aware the turn signal needed to be fixed. With this statement,
it is reasonable to assume that every time the vehicle was driven, it was known that the
17 No. 39959-1-III State v. Vassar
vehicle was being operated unlawfully due to the faulty turn signal. For these reasons, we
agree with the trial court that this case is distinguishable from Prado.
The trial court did not err in its conclusion of law that Deputy Trim had reasonable
suspicion to conduct a traffic stop when he witnessed a turn signal violation.
Pretextual stop
As to Vassar’s contention that the traffic stop was pretextual, in looking at the
subjective intent and objective circumstances, nothing in the findings of fact or in the
record suggests that Deputy Trim had any illegitimate reason for conducting the traffic
stop. Rather, the findings of fact support that the stop was performed for a legitimate
traffic violation, which was the actual, conscious, and independent cause for the traffic
stop, and that Deputy Trim appropriately exercised discretion in initiating the traffic stop.
For these reasons, the trial court did not err in its conclusion of law that the stop was not
pretextual.
Racial motivation
Alternatively, Vassar argues the stop was motivated by racial bias. Vassar relies
on his declaration to argue Deputy Trim drove past his vehicle and was able to see him
prior to the traffic stop. The trial court discounted Vassar’s declaration and, instead,
found Deputy Trim credible when Deputy Trim testified he could not see the race or
gender of any occupant of the vehicle prior to conducting the traffic stop. Based on the
18 No. 39959-1-III State v. Vassar
evidence that the darkness, the tinted windows, and the obstructed windows blocked
Deputy Trim’s visibility into the vehicle, the credible evidence is that the traffic stop was
performed for a turn signal violation. The trial court did not err in its conclusion of law
that the evidence did not support a claim that there was a race-based motivation for the
traffic stop.
GR 37
Vassar suggests this court should review the traffic stop through an examination of
the GR 37 framework, while concurrently noting the Supreme Court has not extended
such an examination to a situation like the one presented in this case. Vassar argues that
under the rationale of Sum, the GR 37 standard must be applied in the context of a
pretextual stop. Specifically, Vassar claims this court should ask whether an objective
observer through the GR 37 framework could reasonably conclude that race was a
substantial factor in Deputy Trim’s execution of the traffic stop.
The State counters that Vassar’s reliance on GR 37 is not preserved and this court
should not apply a new test. The State argues Vassar failed to cite to RAP 2.5 or attempt
to demonstrate that the trial court committed a manifest constitutional error. The State
further argues that this court should decline review of this issue because it would not be
possible to demonstrate any error was manifest as no case law requires GR 37 to be
applied to this scenario.
19 No. 39959-1-III State v. Vassar
In the context that Vassar is alleging error of a constitutional magnitude and
whether that claimed error affected his rights at trial, we review Vassar’s argument.
In Sum, a deputy observed Palla Sum, who “‘was slumped over and appeared to
be unconscious in the driver’s seat.’” 199 Wn.2d at 632. The deputy conducted a “‘social
contact’” and asked for Sum’s driver’s license. Id. at 632-33. When the deputy walked
back to his patrol car to check Sum’s name, Sum started his engine and left. Id. at 633.
Sum was eventually arrested, and the police discovered a pistol in the vehicle. Id. at 634.
Sum filed a pretrial motion to suppress contending he was unlawfully seized without
reasonable suspicion when the deputy requested his identification. Id. The motion to
suppress was denied. Id. at 634-35. The Supreme Court granted review and reversed,
holding “courts must consider the race and ethnicity of the allegedly seized person as part
of the totality of the circumstances when deciding whether there was a seizure for
purposes of article I, section 7 [of the Washington Constitution].” Id. at 656. GR 37 was
first adopted to “‘eliminate the unfair exclusion of potential jurors based on race or
ethnicity.’” Id. at 649 (quoting GR 37(a)).
“[I]n determining whether there has been a seizure in light of all the circumstances
of the encounter, courts may take guidance from some of the circumstances specified in
GR 37 . . . .” Id. at 653-54. However, “[w]e express no opinion as to whether race and
ethnicity might be relevant in determining whether a particular warrantless seizure was
20 No. 39959-1-III State v. Vassar
justified by reasonable suspicion or some other exception to the warrant requirement, as
that issue is not before us.” Id. at 643.
The case before us is distinguishable from Sum, which addressed whether race was
a substantial factor when a seizure occurred in the context of a social contact. Here,
Deputy Trim had reasonable suspicion to perform a traffic stop based on a traffic
violation. It was expressly stated by the Sum court that it was not making a holding or
stating an opinion as to whether race or ethnicity may be relevant in determining whether
a particular warrantless seizure was justified by reasonable suspicion or some other
exception to the warrant requirement. The issue presented in Sum is not the issue
presented in this case.
We do not address whether the GR 37 standard should apply in this fact pattern
because the trial court found that Deputy Trim did not know Vassar’s race or gender prior
to initiating the traffic stop. This finding is supported by substantial evidence. Therefore,
race was not a factor in stopping Vassar. 3
Vassar argues for the first time on appeal that misconduct occurred during the
prosecutor’s closing argument, depriving Vassar of his right to a fair trial. Vassar claims
the prosecutor committed misconduct by arguing facts unsupported by the evidence and
3 The trial court did address the issue of race in detail at the suppression hearing.
21 No. 39959-1-III State v. Vassar
appealing to racial bias to undermine Vassar’s and Lovelace’s credibility. As such,
Vassar raises two claims of misconduct. One claim is a nonrace-based claim. One claim
is a race-based claim. Different standards of review apply to these claims.
Inference of being at the casino together
Vassar asserts the prosecutor stated multiple times during closing argument that
Vassar and Lovelace were on a date together at the casino. Vassar claims this argument
was improper as it was unsupported by the evidence. The State responds that its closing
argument properly relied on the trial testimony and reasonable inferences drawn from that
evidence. We agree with the State.
In the context of closing argument, “misconduct includes making arguments that
are unsupported by the admitted evidence.” In re Pers. Restraint of Yates, 177 Wn.2d 1,
58, 296 P.3d 872 (2013) (citing State v. Belgarde, 110 Wn.2d 504, 505, 508-09, 755 P.2d
174 (1988)). However, “‘the prosecuting attorney has wide latitude in making arguments
to the jury and prosecutors are allowed to draw reasonable inferences from the
evidence.’” Id. (quoting State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009)).
During its closing argument, the State made reasonable inferences from the trial
evidence that Vassar and Lovelace were at the casino together. Deputy Trim testified that
Vassar said “something about they were coming from the casino” during the traffic stop.
RP (Aug. 15, 2023) at 200. Additionally, Lovelace testified that she was giving friends a
22 No. 39959-1-III State v. Vassar
ride home from the casino, although she did not know the last names of her friends. Id. at
179-80. It is reasonable to question whether those friends existed or if Lovelace’s
statement was made to avoid placing Vassar and Lovelace together at the casino. In
addition, when Vassar was asked why he told Deputy Trim he was coming from the
casino, Vassar testified, “[b]ecause that’s where I was going” with Vassar explaining,
“[t]hat’s not where I was coming from, but that was basically, you know, the I guess I
could say I was mapped out for where it all started.” Id. at 221-22. Although Vassar
denied he was ever at the casino, inferences that Vassar was at the casino with Lovelace
were reasonable inferences based on what Vassar told Deputy Trim when he was first
pulled over, and, in part, based on Vassar’s testimony at trial.
In Vassar’s closing argument, defense counsel pointed out that: (1) Lovelace was
no longer in a relationship with Vassar and she went to the casino by herself, (2) she met
some friends who asked her for a ride, and (3) she drove to Vassar’s home to ask Vassar
to drive her friends to their house. Vassar testified he was home when Lovelace stopped
by and asked for a ride. Deputy Trim could not remember every detail of his interactions
with Vassar and Lovelace, but did remember Vassar saying something about coming
from the casino and something about taking friends from casino.
Vassar’s trial testimony included an effort to explain why he told Deputy Trim
why they were coming from the casino and included an answer from Vassar that the
23 No. 39959-1-III State v. Vassar
casino was where they were going and that the situation was mapped out as coming from
the casino because that was where the events started. Lovelace did not tell Deputy Trim
at the time of the stop that she was pregnant, that she had lost the eyeglasses she needed
to drive, that she had no money for an Uber, that she did not know her friends’ last
names, or that she had spent the gas money they had given her even though they had
approached her as she was leaving the casino. It was reasonable to infer that Vassar and
Lovelace were at the casino together. In line with the inference the State was drawing in
its argument, it was a fair inference to question whether it was more likely that Vassar
and Lovelace were on a date.
There were no objections to the State’s closing argument during trial. The jury
was instructed that the lawyers’ remarks and arguments were not evidence. Given the
necessity defense, it was argued that this defense was not believable, based on the
evidence at trial, that a different course could not have been chosen, including (1) having
Lovelace’s mother, who had a driver’s license, drive the friends home, (2) for Vassar to
decline to drive Lovelace’s car, (3) the adult friends of Lovelace could have figured out
their own way home, and (4) Vassar could have driven without Lovelace in the car.
In summary, the State made reasonable inferences based on the evidence that
Vassar and Lovelace were at the casino together. Further, the remarks were not so
24 No. 39959-1-III State v. Vassar
flagrant and ill-intentioned that they caused an enduring and resulting prejudice that
affected the jury’s verdict.
No improper appeal to racial bias
On appeal, Vassar also argues that in closing argument, the prosecutor told the
jury Vassar and Lovelace “were lying and were on a date together at the casino,” which
was an “improper appeal to racial bias.” Br. of Appellant at 46. Vassar further argues that
the prosecutor committed misconduct in closing when they stated that “‘the entire story
about she and her friends is something that’s made up after the fact to try to explain away
or give a good reason for the violation of this no contact order.’” Br. of Appellant at 53
(quoting RP (Aug. 15, 2023) at 245). Vassar argues that jurors were invited to question
the credibility of Vassar and Lovelace “based on racist stereotypes.” Br. of Appellant at
53. Further, when the prosecutor argued Vassar and Lovelace were on a date and having
fun despite Lovelace’s testimony that they were no longer in a romantic relationship, the
prosecutor again invited the jury to question Vassar’s and Lovelace’s credibility “based
on racist stereotypes.” Br. of Appellant at 53.
Vassar claimed the prosecutor argued Vassar was lying about the necessity
defense because Vassar did not grovel with Deputy Trim and there was “‘no testimony
about Mr. Vassar talking about I had to do this for the sake of Ms. Lovelace.’” Br. of
Appellant at 54 (quoting RP (Aug. 15, 2023) at 245. Instead, Vassar only answered
25 No. 39959-1-III State v. Vassar
Deputy Trim’s questions and did not volunteer information. Vassar argues his conduct
during the stop was consistent with “‘The Talk’ that Black people give their children:
they are told to ‘keep their composure,’ ‘be perfectly respectful,’ ‘ask for permission
before moving their hands, and comply with all the officer’s requests.’” Br. of Appellant
at 54 (quoting United States v. Knights, 989 F.3d 1281, 1297 n.8 (11th Cir. 2021)).
As established by the Washington Supreme Court, “prosecutorial misconduct
claims involving racial bias are controlled by the ‘flagrant or apparently intentional’
standard.” State v. Bagby, 200 Wn.2d 777, 789-90, 522 P.3d 982 (2023) (citing State v.
Monday, 171 Wn.2d 667, 680, 257 P.3d 551 (2011)). “[T]o prevail on a claim of race-
based prosecutorial misconduct, the defendant must demonstrate that the prosecutor’s
conduct was both improper and prejudicial by showing that they flagrantly or apparently
intentionally appealed to racial bias in a manner that undermined the defendant’s
credibility or the presumption of innocence.” Id. at 790 (citing Monday, 171 Wn.2d at
680; State v. Zamora, 199 Wn.2d 698, 709, 512 P.3d 512 (2022)). “If the prosecutor’s
conduct flagrantly or apparently intentionally appealed to racial or ethnic bias, then their
improper conduct is considered per se prejudicial and reversal is required.” Id. (citing
Zamora, 199 Wn.2d at 715).
The “‘gravity of [a] violation of article I, section 22 and Sixth Amendment [to the
United States Constitution] principles by a prosecutor’s [apparently] intentional appeals
26 No. 39959-1-III State v. Vassar
to racial prejudices cannot be minimized or easily rationalized as harmless.’” Zamora,
199 Wn.2d at 721 (quoting Monday, 171 Wn.2d at 680). “[A]ppeals to racial bias
‘necessarily seek to single out one racial minority for different treatment,’ thereby
‘fundamentally undermin[ing] the principle of equal justice.’” Id. (quoting Monday, 171
Wn.2d at 680). Our Supreme Court has held that “[n]ot all appeals to racial prejudice are
blatant. Perhaps more effective but just as insidious are subtle references. Like wolves in
sheep’s clothing, a careful word here and there can trigger racial bias.” Monday, 171
Wn.2d at 678.
However, “[i]n closing argument the prosecuting attorney has wide latitude to
argue reasonable inferences from the evidence, including evidence respecting the
credibility of witnesses.” State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011).
Prosecutors may argue inferences from the evidence, including inferences as to why the
jury would want to believe one witness over another. State v. Copeland, 130 Wn.2d 244,
290, 922 P.2d 1304 (1996). If the prosecutor does not appeal to racial bias, then the
prosecutor may argue reasonable inferences from the evidence, including the credibility
of the witnesses.
When analyzing claims of prosecutorial misconduct involving racial bias, the
“objective observer standard” is applied. Bagby, 200 Wn.2d at 792. The test, established
by our Supreme Court, is to “ask whether an objective observer could view the
27 No. 39959-1-III State v. Vassar
prosecutor’s questions and comments as an appeal to jurors’ potential prejudice, bias, or
stereotypes in a manner that undermined the defendant’s credibility or the presumption
of innocence.” Id. at 793 (footnote omitted). Application of the objective observer
standard requires “consider[ation of] (1) the content and subject of the questions and
comments, (2) the frequency of the remarks, (3) the apparent purpose of the statements,
and (4) whether the comments were based on evidence or reasonable inferences in the
record.” Id. at 794.
Relying primarily on Monday and Henderson v. Thompson, 200 Wn.2d 417, 518
P.3d 1011 (2022), Vassar claims that the State appealed to racial bias in closing argument
when the following arguments were made:
I’d suggest to you that what’s going on here is Mr. Vassar is trying to put the best face on this that he possibly can, but that what actually happened was he and Ms. Lovelace were on a date. They were out. They were having fun. The night got late. . . . I’ll suggest to you that the entire story about she and her friends is something that’s made up after the fact to try to explain away or give a good reason for the violation of this no contact order.
RP (Aug. 15, 2023) at 244-45. Vassar claims that the statements invited the jurors to
question the credibility of Vassar and Lovelace based on racial stereotypes.
In Monday, the prosecutor cast doubt on the credibility of the witnesses based on
their race when stating, “‘[B]lack folk don’t testify against [B]lack folk.’” 171 Wn.2d at
28 No. 39959-1-III State v. Vassar
676. The Monday court found the statement “highly improper” and that it constituted
race-based misconduct. Id. at 679.
In Henderson, which is a civil case involving a motor vehicle accident, the
attorney for the at-fault driver described Henderson in closing arguments as
“‘confrontational,’” “‘combative,’” and “‘not interested in the search for truth.’”
200 Wn.2d at 424-25. At trial, Henderson testified the collision increased symptoms she
experienced due to Tourette’s syndrome, and that since the accident she had new and
more intense tics and severe pain. Id. at 424. The only Black people in the courtroom
were Henderson, her attorney who was a Black woman, and Henderson’s lay witnesses.
Id. at 422. In closing, the attorney for the at-fault driver argued that the at-fault driver
took the stand and felt intimidated and emotional, and the only reason for the trial was
Henderson’s desire for a financial windfall. Id. at 425. The at-fault driver’s attorney
further argued that Henderson’s lay witnesses were “‘inherently biased’” and “suggested
the [three] Black lay witnesses’ shared use of a popular idiom to describe Henderson was
a sign of collusion.” Id. at 425 (all described Henderson prior to the accident as the “‘life
of the party’”). Following the verdict, Henderson was asked to leave the courtroom
before the jury returned with “Henderson and her legal team recall[ing] this coming as a
request from the jury.” Id. at 426.
29 No. 39959-1-III State v. Vassar
Henderson moved for a new trial or additur of the jury’s verdict on the ground that
defense counsel repeatedly appealed to racial bias that affected the verdict. Id. at 422.
The trial court denied a new trial and did not grant a requested evidentiary hearing. Id.
The Supreme Court reversed, holding the trial court abused its discretion in not granting
an evidentiary hearing and not imposing sanctions. Id. at 423. The court reasoned that
“[a] trial court must hold a hearing on a new trial motion when the proponent makes a
prima facie showing that this objective observer could view race as a factor in the verdict,
regardless of whether intentional misconduct has been shown or the court believes there
is another explanation.” Id. at 422-23.
The case before the court is distinguishable from Monday and Henderson. Here,
the prosecutor did not use highly improper language, make references to race or ethnicity,
set up an us-versus-them dichotomy, or suggest that the Black witnesses were inherently
unreliable. In considering the (1) content and subject of the prosecutor’s closing
remarks, (2) the frequency of the remarks, (3) the apparent purpose of the statements,
and (4) whether the comments were based on evidence or reasonable inferences in the
record, we find that the prosecutor’s statements in closing argument were not flagrantly
or apparently intentional in an appeal to racial bias in a way that would undermine the
defendant’s credibility or the presumption of innocence. See Bagby, 200 Wn.2d 788-89.
30 No. 39959-1-111 State v. Vassar
Nothing in the record suggested that the State appealed to racial bias during this
trial.
CONCLUSION
We affirm.
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.
Murphy, J. ·
WE CONCUR: