FILED FEBRUARY 4, 2021 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STATE OF WASHINGTON, ) ) No. 36979-0-III Respondent, ) ) v. ) ) RICHARD ANTHONY VEDDER, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J.P.T.1 — Richard Vedder appeals his conviction for forgery. He
contends that the prosecutor committed reversible misconduct, that his attorney was
ineffective, and that there was insufficient evidence to prove all of the essential elements
of forgery. We affirm.
FACTS
The relevant facts can be briefly summarized. Mr. Vedder attempted to cash a
forged check for $673.54 at a Money Tree in Kennewick. It was rejected by the clerk,
who noticed several irregularities and called the police after Mr. Vedder rushed out of the
building. The check was nominally from the Franklin County Prisoners’ Fund. Mr.
1 Judge Kevin M. Korsmo was a member of the Court of Appeals at the time argument was held on this matter. He is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150. No. 36979-0-III State v. Vedder
Vedder had previously received a valid check from the Prisoners’ Fund for $.41 years
earlier. That check was never cashed and was entered into evidence. Mr. Vedder
testified in his own defense that he received the false check in the mail in a large
envelope. No envelope was offered into evidence.
During closing arguments, the prosecutor stated that “reasonable doubt is a doubt
for which a reason exists. And I know that is sort of circular, but it’s something that there
has to actually be a reasonable thing.” The prosecutor also contrasted the defendant’s
ability to produce a $.41 check from years earlier with his inability to produce the large
envelope in which the defendant testified the false check was mailed. The defense did
not object to these arguments.
The jury found the defendant guilty of forgery. Mr. Vedder appealed to this court.
A panel considered his case without hearing oral argument.
ANALYSIS
The defendant argues the prosecutor used an improper “fill-in-the-blank”
argument in closing argument, that his attorney at trial was ineffective for not objecting
to that argument, and that there was not sufficient evidence to prove the knowledge
element of forgery. We address the latter argument first, and then consider the remaining
challenges as one.
2 No. 36979-0-III State v. Vedder
Sufficiency of the Evidence
Sufficient evidence supports the defendant’s conviction. When evaluating
whether sufficient evidence supports a conviction, the reviewing court reviews the
evidence in the light most favorable to the state. State v. Homan, 181 Wn.2d 102, 105,
330 P.3d 182 (2014). The court admits the truth of the State and against the defendant.
Id. at 106. Appellate courts defer to the trier of facts on issues of conflicting testimony,
witness credibility, and the persuasiveness of evidence. State v. Thomas, 150 Wn.2d 821,
874-875, 83 P.3d 970 (2004). The court then asks whether “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
A person is guilty of forgery only if he knows the written instrument is forged.
RCW 9A.60.020(1)(b). In a criminal case, “possession alone is not sufficient to prove
guilty knowledge,” though “possession together with slight corroborating evidence of
knowledge may be sufficient.” State v. Scoby, 117 Wn.2d 55, 61, 810 P.2d 1358 (1991).
Such corroborating evidence has included “the giving of a false explanation or one that is
improbable or is difficult to verify.” State v. Ladely, 82 Wn.2d 172, 175, 509 P.2d 658
(1973).
In this case, Mr. Vedder testified that he received the check in the mail—but also
that he was familiar with the payor, had received a valid check from them before, and that
he was not expecting any further checks from them. The bank teller testified that Vedder
3 No. 36979-0-III State v. Vedder
became agitated when she began more thoroughly investigating the check, and that there
were several red flags that would have caused an untrained eye to question the check’s
authenticity—including the lack of endorsement and the misspelled name of the payee.
Drawing all inferences in favor of the State, there is sufficient evidence for a rational
juror to find that the defendant knew the check was forged.
Prosecutorial Misconduct
The prosecutor did not commit misconduct. With a timely objection, reversible
misconduct occurs when the defendant shows the prosecutor’s behavior was (1) improper
and (2) prejudicial in the context of the entire trial. State v. Walker, 182 Wn.2d 463, 477,
341 P.3d 976 (2015). When there was no objection at trial, the bar for reversal is raised
to misconduct which is “so flagrant and ill-intentioned that an instruction would not have
cured the prejudice. Id. at 477-478 (quoting In re Pers. Restraint of Glassman, 175
Wn.2d 696, 704, 286 P.3d 673 (2012)).
Conduct that clears this higher bar results in enduring prejudice that cannot be
fixed by an instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). It
engenders such great prejudice in the minds of the jury, that a fair trial is impossible.
Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932). Historically, this
type of prejudice has involved exploiting racial stereotypes and manipulated imagery in
closing presentations. E.g., Walker, 182 Wn.2d at 468; State v. Monday, 171 Wn.2d 667,
257 P.3d 551 (2011).
4 No. 36979-0-III State v. Vedder
“Fill-in-the-blank” arguments are improper. State v. Emery, 174 Wn.2d 741, 759,
278 P.3d 653 (2012). In Emery, the prosecutor explicitly stated in closing, “you’d [the
jury] have to say . . . I doubt the defendant is guilty, and my reason is blank. . . . If you
think that you have a doubt, you must fill in that blank.” Id. at 750-751. This type of
argument subtly shifts the burden of proof, and also implies the jury must do something
to find a defendant not guilty. Id. at 758-760. While improper, a fill-in-the-blank
argument on its own—even one as explicit as in Emery—does not rise to the level of
flagrant and ill-intentioned. Id. at 762. The Emery court held that the combination of an
explicit fill-in-the-blank argument and an exhortation to the jury to “speak the truth” were
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FILED FEBRUARY 4, 2021 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. 36979-0-III Respondent, ) ) v. ) ) RICHARD ANTHONY VEDDER, ) UNPUBLISHED OPINION ) Appellant. )
KORSMO, J.P.T.1 — Richard Vedder appeals his conviction for forgery. He
contends that the prosecutor committed reversible misconduct, that his attorney was
ineffective, and that there was insufficient evidence to prove all of the essential elements
of forgery. We affirm.
FACTS
The relevant facts can be briefly summarized. Mr. Vedder attempted to cash a
forged check for $673.54 at a Money Tree in Kennewick. It was rejected by the clerk,
who noticed several irregularities and called the police after Mr. Vedder rushed out of the
building. The check was nominally from the Franklin County Prisoners’ Fund. Mr.
1 Judge Kevin M. Korsmo was a member of the Court of Appeals at the time argument was held on this matter. He is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150. No. 36979-0-III State v. Vedder
Vedder had previously received a valid check from the Prisoners’ Fund for $.41 years
earlier. That check was never cashed and was entered into evidence. Mr. Vedder
testified in his own defense that he received the false check in the mail in a large
envelope. No envelope was offered into evidence.
During closing arguments, the prosecutor stated that “reasonable doubt is a doubt
for which a reason exists. And I know that is sort of circular, but it’s something that there
has to actually be a reasonable thing.” The prosecutor also contrasted the defendant’s
ability to produce a $.41 check from years earlier with his inability to produce the large
envelope in which the defendant testified the false check was mailed. The defense did
not object to these arguments.
The jury found the defendant guilty of forgery. Mr. Vedder appealed to this court.
A panel considered his case without hearing oral argument.
ANALYSIS
The defendant argues the prosecutor used an improper “fill-in-the-blank”
argument in closing argument, that his attorney at trial was ineffective for not objecting
to that argument, and that there was not sufficient evidence to prove the knowledge
element of forgery. We address the latter argument first, and then consider the remaining
challenges as one.
2 No. 36979-0-III State v. Vedder
Sufficiency of the Evidence
Sufficient evidence supports the defendant’s conviction. When evaluating
whether sufficient evidence supports a conviction, the reviewing court reviews the
evidence in the light most favorable to the state. State v. Homan, 181 Wn.2d 102, 105,
330 P.3d 182 (2014). The court admits the truth of the State and against the defendant.
Id. at 106. Appellate courts defer to the trier of facts on issues of conflicting testimony,
witness credibility, and the persuasiveness of evidence. State v. Thomas, 150 Wn.2d 821,
874-875, 83 P.3d 970 (2004). The court then asks whether “any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
A person is guilty of forgery only if he knows the written instrument is forged.
RCW 9A.60.020(1)(b). In a criminal case, “possession alone is not sufficient to prove
guilty knowledge,” though “possession together with slight corroborating evidence of
knowledge may be sufficient.” State v. Scoby, 117 Wn.2d 55, 61, 810 P.2d 1358 (1991).
Such corroborating evidence has included “the giving of a false explanation or one that is
improbable or is difficult to verify.” State v. Ladely, 82 Wn.2d 172, 175, 509 P.2d 658
(1973).
In this case, Mr. Vedder testified that he received the check in the mail—but also
that he was familiar with the payor, had received a valid check from them before, and that
he was not expecting any further checks from them. The bank teller testified that Vedder
3 No. 36979-0-III State v. Vedder
became agitated when she began more thoroughly investigating the check, and that there
were several red flags that would have caused an untrained eye to question the check’s
authenticity—including the lack of endorsement and the misspelled name of the payee.
Drawing all inferences in favor of the State, there is sufficient evidence for a rational
juror to find that the defendant knew the check was forged.
Prosecutorial Misconduct
The prosecutor did not commit misconduct. With a timely objection, reversible
misconduct occurs when the defendant shows the prosecutor’s behavior was (1) improper
and (2) prejudicial in the context of the entire trial. State v. Walker, 182 Wn.2d 463, 477,
341 P.3d 976 (2015). When there was no objection at trial, the bar for reversal is raised
to misconduct which is “so flagrant and ill-intentioned that an instruction would not have
cured the prejudice. Id. at 477-478 (quoting In re Pers. Restraint of Glassman, 175
Wn.2d 696, 704, 286 P.3d 673 (2012)).
Conduct that clears this higher bar results in enduring prejudice that cannot be
fixed by an instruction. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). It
engenders such great prejudice in the minds of the jury, that a fair trial is impossible.
Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464 (1932). Historically, this
type of prejudice has involved exploiting racial stereotypes and manipulated imagery in
closing presentations. E.g., Walker, 182 Wn.2d at 468; State v. Monday, 171 Wn.2d 667,
257 P.3d 551 (2011).
4 No. 36979-0-III State v. Vedder
“Fill-in-the-blank” arguments are improper. State v. Emery, 174 Wn.2d 741, 759,
278 P.3d 653 (2012). In Emery, the prosecutor explicitly stated in closing, “you’d [the
jury] have to say . . . I doubt the defendant is guilty, and my reason is blank. . . . If you
think that you have a doubt, you must fill in that blank.” Id. at 750-751. This type of
argument subtly shifts the burden of proof, and also implies the jury must do something
to find a defendant not guilty. Id. at 758-760. While improper, a fill-in-the-blank
argument on its own—even one as explicit as in Emery—does not rise to the level of
flagrant and ill-intentioned. Id. at 762. The Emery court held that the combination of an
explicit fill-in-the-blank argument and an exhortation to the jury to “speak the truth” were
both improper, but even together did not amount to flagrant and ill-intentioned
misconduct. Id. at 760-764. In other fill-in-the-blank cases, it has been a combination of
several improper statements or cumulative error that ultimately resulted in reversal. E.g.,
State v. Venegas, 155 Wn. App. 507, 228 P.3d 813 (2010); State v. Johnson, 158 Wn.
App. 677, 243 P.3d 936 (2010).
This court has declined to find a fill-in-the-blank argument in the text of jury
instructions which describe reasonable doubt as “a doubt for which a reason exists.” See
State v. Kalebaugh, 179 Wn. App. 414, 424-425, 318 P.3d 288 (2014); State v. Hood, 196
Wn. App. 127, 131, 382 P.3d 710 (2016). The Supreme Court also endorsed this as a
proper description of reasonable doubt. Emery, 174 Wn.2d at 759.
5 No. 36979-0-III State v. Vedder
In this case, the alleged fill-in-the-blank argument is not explicit and does not shift
the burden of proof to the defendant. The prosecution did not call on the jury to fill in a
blank, but rather restated the jury instruction’s explanation that “a reasonable doubt is one
for which a reason exists.” 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 4.01, at 93 (4th ed. 2016). At a glance, the prosecutor’s
statement that “there has to actually be a reasonable thing” resembles part of an improper
argument from Anderson that reasonable doubt is “something real, with a reason to it.”
There the improper statement immediately followed an explicit call for the jury to “fill in
the blank.” State v. Anderson, 153 Wn. App. 417, 424, 220 P.3d 1273 (2009). The
insidious shift that occurs when the prosecutor says the jury must do something to find a
defendant not guilty—like fill in a blank—is absent here.
It is also improper for the prosecution to comment on a defendant’s lack of
evidence. State v. Sundberg, 185 Wn.2d 147, 153, 370 P.3d 1 (2016). However, in some
situations when the defendant testified, the prosecution can comment on the defendant’s
lack of evidence to corroborate his theory of the case. Id at 156. This does not
improperly shift the burden of proof because “evidence supporting a defendant’s theory
of the case is subject to the same searching examination as the State’s evidence.” State v.
Vassar, 188 Wn. App. 251, 260, 352 P.3d 856 (2015). In Vassar, a defendant charged
with theft of a motor vehicle claimed the owner forged a bill of sale transferring
6 No. 36979-0-III State v. Vedder
ownership from the defendant to the owner. Id. at 251. It was not improper for the State
to comment that no evidence showed the bill of sale was forged. Id. at 256.
The prosecution’s attacks on the defendant’s testimony in this case were not
improper. The prosecutor was entitled to point out that a large envelope was not
produced and that the defendant’s father who allegedly found the envelope in the mail did
not testify. This was similar to the prosecutor’s comment on a lack of evidence showing
a bill of sale was forged in Vassar.
The prosecutor’s closing arguments were not improper, and certainly do not
amount to the sort of flagrant and ill-intentioned misconduct which requires reversal
absent an objection below. That conclusion also dooms Mr. Vedder’s derivative
argument that he was denied the effective assistance of counsel.
A successful claim of ineffective assistance of counsel requires a showing (1) that
counsel’s performance was deficient and (2) that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). The defendant must show that counsel performed below an objective standard of
reasonableness under “prevailing professional norms,” and “considering all the
circumstances.” Id. Courts are to “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Id. at 689. It is the
defendant’s burden to show there was “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 669.
7 No. 36979-0-III State v. Vedder
During closing argument, a prosecutor has “wide latitude in closing argument to draw
reasonable inferences from the evidence and to express such inferences to the jury.” In re
Pers. Restraint of Davis, 152 Wn.2d 647, 716, 101 P.3d 1 (2004).
As discussed above, in this case the prosecutor’s statements during closing
arguments were not improper. There was no fill-in-the-blank argument, and the
prosecutor’s comment on the lack of evidence to corroborate the defendant’s testimony
about receiving the check in the mail was proper. Because a defendant cannot be
prejudiced by proper argument, counsel was not ineffective for failing to object.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Korsmo, J.P.T.
WE CONCUR:
_________________________________ Lawrence-Berrey, J.
_________________________________ Pennell, C.J.