IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87316-4-I
Respondent,
v. DIVISION ONE
ROBERT PRINCE CLIFTON, UNPUBLISHED OPINION
Appellant.
CHUNG, J. — Robert Clifton appeals his convictions for rape and kidnapping in the first degree. Clifton asserts that the trial court improperly denied a GR 37 objection and improperly admitted evidence of flight. Clifton also argues that the trial court erroneously excluded evidence he sought to introduce about the victim’s prior bad acts, thereby depriving him of his right to confront witnesses and present a defense. Because we conclude the trial court did not err, we affirm.
BACKGROUND
On September 1, 2022, M.R. was waiting in the courtyard of an apartment complex to visit Lamont McGowen, a friend with whom she had a “casual relationship.” Around midnight, M.R. was pepper-sprayed during an altercation and Robert Clifton invited her into his apartment and offered to let her use his shower. According to M.R., shortly after beginning the shower, Clifton got into the shower with her, uninvited, and “took his penis and pushed it into [her] back.” M.R. testified that after the shower, Clifton “went from having a very helpful, soft kind voice to an angry, violent voice” and told her
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that since he “had done a kindness for [her], . . . [she] would now help him; and if [she] didn’t help him, he was going to rape [her].” Then a “physical battle” ensued when Clifton “grabbed [her] hair,” “pulled [her] head back,” and “was trying to get [her] legs apart with his other hand.” During the struggle, he punched her, beat her back and stomach, strangled her with a cord, and threatened to kill her. During the conflict, Clifton attempted to penetrate her with his penis, digitally raped her, and put his mouth on her vagina. After Clifton fell asleep, M.R. escaped, sometime around 5:30 a.m. or 6:30 a.m.
Clifton testified to the contrary. He stated that M.R. gave him permission to join her in the shower. He testified that he washed pepper spray off his face and immediately got out and dried himself in the living room. According to Clifton, M.R. propositioned him and asked him for methamphetamine. He testified that he then convinced M.R. to get dressed and leave after a few minutes and no sexual activity occurred.
On her way out of the apartment, M.R. took photographs of the apartment number, 206, and of Clifton sleeping on the floor. She then went to the lobby and called 9-1-1. Police took approximately one hour to arrive. After about one hour of investigation, the officers knocked on the door of apartment 206. They received no response. The officers stood outside the apartment for over an hour, during which nobody entered or exited the apartment. As officers “sat on the apartment,” one of the officers saw a person “come up the stairs, look at us, match the description [M.R. had given of the suspect], and then start to run back down the stairs.” The officers “located him at the very bottom of the stairs . . . [in] a little alcove, like a storage space sort of
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right underneath the stairs.” There, the officers found Clifton and arrested him at 10:27 a.m.
When Clifton was arrested, he was on electronic home monitoring (EHM) and wearing an ankle bracelet as a condition of pretrial release on unrelated charges. The ankle bracelet was visible in the photographs M.R. took of him sleeping.
Clifton was charged with one count of rape in the first degree and one count of kidnapping in the first degree. Prior to trial, the State moved to admit ER 404(b) evidence, including the fact that Clifton was on EHM and wearing an ankle bracelet. Clifton opposed and separately moved to exclude video evidence of his apprehension and arrest in the stairwell “crawl space” and related testimony as unduly prejudicial and not admissible as flight evidence.
The court initially deferred ruling on Clifton’s motion regarding the ankle bracelet, then denied it, then granted it upon reconsideration, reasoning that the prejudicial effect outweighed the probative value given the other evidence available to corroborate Clifton’s identity. Accordingly, the court allowed M.R.’s photographs of Clifton to be admitted but required the photos to be redacted to exclude the ankle bracelet. However, the court denied Clifton’s motion to exclude the video evidence, determining it was admissible as flight evidence. Clifton sought reconsideration of this ruling in light of the court’s reasoning for redacting the photograph of Clifton taken by M.R., which the court denied. Accordingly, at trial, three law enforcement officers testified regarding Clifton’s flight. The State played two body camera videos of Clifton’s arrest. Clifton testified at trial that he went to the area under the stairs because he thought he was being taken to jail for EHM violations.
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During voir dire, the State used a peremptory challenge on juror 104, an attorney who appeared to be Asian, on the basis that “she is a lawyer” and “I do not like lawyers on my jury.” Clifton objected under GR 37. The trial court overruled Clifton’s objection and allowed the State’s peremptory challenge, dismissing juror 104. Juror 30 was seated on the jury.
Clifton was convicted of one count of rape in the first degree with a deadly weapon enhancement and one count of kidnapping in the first degree with an aggravating circumstance of sexual motivation. The court imposed two consecutive indeterminate sentences of life for counts one and two and a mandatory term of life without the possibility of release as a persistent offender under RCW 9.94A.570. Clifton timely appeals.
DISCUSSION
On appeal, Clifton argues the trial court erred by denying his GR 37 objection to the State’s peremptory strike against juror 104 and by admitting evidence of his flight through testimony and video and photo exhibits. In addition, in a statement of additional grounds, Clifton claims the trial court’s exclusion of M.R.’s prior bad acts under ER 404(b) violated the confrontation clause and his right to present a defense.
I. GR 37 “Our constitutions require a fair and impartial jury.” State v. Tesfasilasye, 200 Wn.2d 345, 356, 518 P.3d 193 (2022) (citing U.S. Const. amend. VI; Wash. Const. art. I, § 22). Peremptory strikes are used to “strike a limited number of otherwise qualified jurors from the venire without providing a reason.” Id. GR 37 was developed to “eliminate the unfair exclusion of potential jurors based on race or ethnicity.” GR 37(a).
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“In addition to preventing purposeful racial discrimination, the rule is aimed at preventing implicit racial and ethnic biases in jury selection, which are subconscious attitudes towards groups that influence a person’s decisions without their awareness.” State v. Bell, 5 Wn.3d 54, 66, 571 P.3d 272 (2025). We review GR 37 objections de novo. Id. at 64.
Under GR 37, “the party exercising the peremptory challenge must explain its justification.” Id. at 66 (citing GR 37(d)). Then, “the court must evaluate the reason given to justify the peremptory challenge in light of the totality of circumstances and determine if an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.” Id. at 66-67 (citing GR 37(e)). “An objective observer is one who ‘is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington State.’ ” Id. at 66 (quoting GR 37(f)).
We evaluate “counsel’s reasons for the challenge by considering them objectively within the total circumstances, taking particular note of the five considerations in GR 37(g).” State v. Booth, 22 Wn. App. 2d 565, 576-77, 510 P.3d 1025 (2022). These considerations include
(i) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it;
(ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors;
(iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party;
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(iv) whether a reason might be disproportionately associated with a race or ethnicity; and
(v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases.
GR 37(g). This list is not exhaustive. Id. GR 37 also classifies certain reasons for challenges as “presumptively invalid” due to their historical association with racial discrimination, including “expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling.” GR 37(h)(ii).
The State sought to use a peremptory strike against juror 104, who had an Asian surname, on the ground that she “is an attorney” and “she has experience that is more like what’s going to be presented in this trial.” Juror 104 had also indicated on the juror questionnaire that she had “negative feelings about police officers after having been tear gassed by them repeatedly in 2020.” Clifton objected under GR 37, noting that the State did not object to juror 30, a white woman who was also an attorney. The State responded that it had overlooked juror 30 because she was not a “practicing attorney” and had listed her occupation as “public records manager.” Clifton also pointed to juror 104’s answer on the jury questionnaire that she had “negative feelings about police officers after having been tear gassed by them repeatedly in 2020.” The State responded that it did not particularly care about jurors’ views toward police in this case, given the evidence against Clifton, and noted it had declined to challenge several other jurors who had expressed negative views of law enforcement. According to the State, while juror 104 was “not the worst juror for the State,” there were “simply better jurors that are behind her in line.”
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The court discussed each GR 37(g) factor and noted that neither party asked juror 104 about her views on police during general questioning and that juror 104 was questioned similarly to other panel members in general. In considering whether other unchallenged jurors gave similar answers, as to juror 30, the court noted, “I think I do understand why the State isn’t striking Juror 30, because . . . she said she’s got a relative who was a detective in sex crimes. I mean, there is a host of obvious reasons to distinguish these two.” The court weighed the fact that juror 104 expressed negative attitudes toward police against the State but found no evidence that the State had exercised peremptory challenges disproportionately against people of color. In sum, the court noted that “[i]t is completely understandable and common that lawyers, whether it’s in criminal or civil cases, do not want other lawyers on juries.” It further reasoned, “a party would not want a lawyer on a jury because you don’t know what they’re bringing to the table in terms of their background, their knowledge of the law,” and the parties would be concerned lawyers “will ultimately run the show in terms of the deliberations.” The trial court overruled the objection and allowed the State to exercise its peremptory against juror 104.
On appeal, Clifton contends that an objective observer could view race as a factor in the State’s peremptory challenge against juror 104 either because she was perceived as Asian or because she expressed distrust of law enforcement in her questionnaire. We disagree.
In evaluating the first three considerations in GR 37(g), “we look to . . . how the prospective juror was questioned and whether there were differences between the challenged juror and other members of the venire.” State v. Lahman, 17 Wn. App. 2d
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925, 936, 488 P.3d 881 (2021) (citing GR 37(g)(i)-(iii)). Here, the venire included three other attorneys: jurors 21, 30, and 90. 1 Jurors 21 and 90 identified as people of color and juror 30 identified as Caucasian. 2 The State questioned juror 104 regarding her profession and its impact on her ability to serve as a juror in this case as follows:
[THE STATE]: Let me go to Juror 104, because Juror 104 you[’re] one of my two lawyers on the panel and I see here you work for Allstate Insurance; is that right?
JUROR NO. 104: Yes, I do.
...
[THE STATE]: [S]ometimes I think both sides, fairly so, maybe get a little nervous with having a potential lawyer -- or a lawyer on the potential panel; and that is because, of course, we don’t know if you’re going to bring in outside law experience. Do you have any background or experience in criminal law?
JUROR NO. 104: No. My only exposure to criminal law is what I learned in law school.
[THE STATE]: Okay. So no externships or anything like that?
JUROR NO. 104: That’s right.
The State also asked juror 104 if her partner was also a lawyer, to which she responded that the State must have confused her with somebody else, as she was single. The State moved on to another juror. Later, the State circled back and asked juror 104 if she had “ever done any kind of pro bono on behalf of anybody seeking a
1 While other potential jurors identified as attorneys, seven were excused for hardship prior to
questioning. Three others who identified as attorneys (jurors 134, 199, 212) were not considered for a challenge because their numbers were higher than number 126, the highest numbered venireperson reached to fill the jury.
2 Jurors completed a questionnaire in which they were asked, “What category best describes
you?” The categories included “Caucasian,” “Asian,” “Hispanic, Latino, or Spanish origin,” “Middle Eastern or North African,” “Black or African American,” “Native American or Alaska Native,” “Some other race, ethnicity, or origin,” or “Prefer not to answer.”
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protection order or any kind of domestic violence pro bono work.” Juror 104 responded that she participated in an immigration clinic in law school, which “did have an element of domestic violence involved.” The State did not ask juror 104 any additional follow-up questions.
The other attorney who identified as a person of color, Juror 21, was corporate counsel for Microsoft. The State questioned juror 21 concerning her work as an attorney:
[THE STATE]: And in that role [as Microsoft corporate counsel] you have provided pro bono assistance to non-profits, including organizations that represent victims of sexual assault and domestic violence?
JUROR NO. 21: That is correct.
[THE STATE]: Okay. So you are one of the people that also said that you don’t have concern about being fair and impartial; is that right?
JUROR NO. 21: That is correct.
The State moved on to ask juror 21 about whether she believed it was “easy for someone to come forward and report that they have been sexually assaulted to a Government agency,” which she answered in the negative. The State transitioned to asking other jurors about that topic. Eventually, the State returned to juror 21 and asked whether she “would be able to potentially conclude that this woman is lying to you and was not sexually assaulted, even if she said she was?” Juror 21 responded:
It’s possible, but your choice of word here -- “lying” -- I do struggle with that. There may be a misunderstanding; there may be nuances; but lying, I would struggle with that, yes, because I, too, have had several folks close to me who are victims of sexual violence and sexual assault, and I have yet to come across a case where there was any lying or any element of lying in any of those cases.
The State clarified:
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So basically the answer is “No,” that just based on your experiences and the experiences of people close to you and everything you know about the world and how this system works, you’re not willing or you’re not able, even, to contemplate that this person might be lying about this?
Juror 21 agreed. Clifton challenged juror 21 for cause based on her statements regarding whether she could conclude a person was lying about being sexually assaulted. The State objected. The court sustained the objection and denied Clifton’s challenge.
Later in voir dire, the State again circled back to juror 21 to ask how her work as an attorney or the sexual assault experiences of the people close to her would affect her potential role as a juror:
[THE STATE]: The same question for you, Juror 21. I know you have several experiences of those close to you experiencing sexual assault;
that for you it’s hard to fathom why a woman would lie about this. And you’re also an attorney, so I assume you’re used to judging things logically, but if you’re coming into this courtroom, are you going to be able to evaluate the credibility of the witnesses, of all witnesses who testify, whether on behalf of me or [the defense]?
JUROR NO. 21: Yes. And I also want to clarify a little bit here. There are different layers to this. One is the question of whether a woman lied about sexual assault, and I honestly will say truthfully that I struggle with that, but there are also other factors to consider sometimes. . . So, yes, to answer your question, I do believe, as an attorney I’m trained to think logically and not judge or be quick to judge, but personal experiences do influence a person, and there is unconscious bias, as well, so with that I wanted to recognize that, which is why I answered the way I did.
Subsequently, Clifton used a peremptory challenge against juror 21, and the State did not object.
Juror 30 was also an attorney but did not identify as a person of color.
Immediately after confirming that juror 30 was an attorney, the State continued as follows:
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[THE STATE]: But you’re also someone who, unlike some of our other folks who have been very forthright in saying, you know, that this case might cause difficulty for them, you indicated that you did not have concerns about being fair and impartial; is that right?
JUROR NO. 30: That’s correct.
Then, the State asked juror 30 about whether it was “a drag to be here,” to which she responded that she had “State reporting and stuff due” which would make serving on the jury inconvenient, acknowledging “that there’s no convenient time.” The State then followed up on one of juror 30’s questionnaire answers mentioning a family member who was a detective specializing in sex crimes:
[THE STATE]: Okay. And are you the person -- did you indicate that your cousin was a detective for Vancouver [police department], specializing in sex crimes?
JUROR NO. 30: Yes.
[THE STATE]: Do you ever -- it sounds like they were a detective in sex crimes but they are no longer.
JUROR NO. 30: She just retired, like, this last week.
[THE STATE]: And did you talk to her about her work?
JUROR NO. 30: Not often, but a few cases, yeah.
[THE STATE]: So is it fair to say, then, you have some experience with how these kinds of cases are investigated?
JUROR NO. 30: Yes.
The State returned to the topic of juror 30’s legal experience and asked her if she had any experience in criminal law:
[THE STATE]: Okay. As an attorney, sometimes attorneys, as jurors, can make us lawyers a little uncomfortable. Sometimes there’s a fear that you’re going to apply a different standard or bring in specialized legal knowledge. Do you have any experience with criminal law?
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JUROR NO. 30: A little bit in my interning for judges. Mostly it’s on the civil side, but I also run a public-disclosure program for the [c]ity [of Seattle], so we work really closely with [Seattle Police Department]; and when I was in private practice, I was, like, second or third chair on some jury trials.
...
[THE STATE]: Okay. And are you working . . . in public disclosure because there’s a lot of public disclose[sic] related to police?
JUROR NO. 30: Yes.
The State moved on to question another juror. The State later questioned juror 30 only once more, asking, “Why might a woman lie about having been sexually assaulted?” In response, juror 30 explained her opinion that, among other things, “domestic violence and sexual assault are really nuanced” and “of different gradients all over the place.” Juror 30 was seated on the jury without being challenged.
The third attorney, juror 90, who identified as person of color, worked as in-house counsel for a tech startup and had prior experience “for a really long time” as a plaintiff- side class-action litigator. The State asked juror 90 if she was involved in any “plaintiff side work on behalf of people who are injured or perhaps even [a] victim of sexual assault,” had “any background in criminal law,” or engaged in any “pro bono on behalf of people seeking protection orders or something like that” when she worked with the plaintiff side firm. Juror 90 answered all three questions in the negative. The State then asked if juror 90’s partner was a lawyer, to which juror 90 responded no, and the State moved on to another juror. The State later returned to juror 90 to ask about her answer in the jury questionnaire that she had “a strong bias for victims of sexual assault”:
Because you’re an attorney, I know that you’re aware of . . . the presumption of innocence that Mr. Clifton enjoys in this criminal trial. Are you able to square those two things, the presumption of innocence and your bias towards sexual-assault victims?
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Juror 90 answered:
I think it would be really hard. I mean, there’s a reason why I went into civil law and not criminal law; and, you know, I haven’t had, like, personal experience with this, but I have, like, a close friend that was raped . . . . So I just think it would be really hard to be impartial in this type of matter, and that’s why I did that work [at the plaintiff side firm], as well.
The State asked to keep juror 90 for more questioning, and its follow-up questions concerned impartiality in sexual assault cases based on juror 90’s personal experiences. Clifton moved to strike juror 90 for cause based on her answers. The State did not object, and Juror 90 was struck for cause.
As to the first and second factors in GR 37(g), the number and types of questions posed to juror 104 compared to other jurors, the State did not ask the same set of questions to any of the four attorneys. Indeed, the State asked jurors 104 and 30 about their criminal law experience but did not ask the same question to Juror 21. The State asked jurors 21 and 30 about their ability to be fair and impartial but did not ask the same question to juror 104. The State asked jurors 104 and 21 if they had prior experience working with victims of domestic violence or helping individuals seek protective orders but did not ask the same question to juror 30. The State asked all three questions only to juror 90, who Clifton struck for cause.
As to the third GR 37(g) factor, whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party, we look to “whether [the challenged juror] truly stood out from other jurors.” See Lahman, 17 Wn. App. 2d at 936. For example, in Tesfasilasye, our Supreme Court held that a trial court erred in allowing a peremptory challenge of a juror who the State sought to exclude “because it was concerned she could not be fair and impartial due to her traumatic
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personal experience with her son’s sexual assault conviction,” even though “[t]he State did not seek to strike other jurors who shared similar personal experiences as [the struck juror], even jurors who were more equivocal in their assurances that they could be fair.” 200 Wn.3d at 349-50, 360.
Here, both juror 104 and juror 30, a white attorney who was seated on the jury, provided similar answers about their limited criminal law experience: juror 104 said her only criminal law experience was in law school and juror 30 had exposure to criminal law through “interning for judges.” However, juror 30 provided different answers to other questions that would support the State’s decision not to strike her, despite her being an attorney. Juror 30 demonstrated familiarity with the investigation process of domestic violence cases specifically due to talking with her cousin about her work as an investigator. Juror 30 also stated that she runs a public disclosure program and that there are a lot of public disclosure requests relating to police. Thus, despite similar answers to some questions, there were clear distinctions between juror 104 and juror 30 that provided the State reason not to challenge juror 30, while still having reason to challenge juror 104.
As to the fourth factor, we consider “whether the State’s given ‘reason might be disproportionately associated with a race or ethnicity.’ ” Bell, 5 Wn.3d at 68 (quoting GR 37(g)(iv)). Here, the State’s proffered reason for excluding juror 104, that she was a lawyer, was specific: her profession. By contrast, we have affirmed a trial court’s sustaining a GR 37 objection where the party’s “offered reasons [for the peremptory challenge] were nebulous, [so] an objective observer could view race as a factor in the challenge.” State v. Omar, 12 Wn. App. 2d 747, 754-55, 460 P.3d 225 (2020). There,
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the defendant attempted to strike a juror because he “ ‘just didn’t like some of the responses that [the juror] was giving to some of the questions,’ and ‘felt uncomfortable about the way that she was responding and he felt he would feel uncomfortable having her on his jury in this case.’ ” Id. at 753. Here, not only was the State’s stated reason specific, its reason has not “historically . . . been associated with improper discrimination in jury selection in Washington State.” See GR 37(h), (i). 3 To the contrary, the concern with attorneys serving as jurors is widely acknowledged as a race-neutral concern. See, e.g., U.S. v. Alvarez-Ulloa, 784 F.3d 558, 566 (9th Cir. 2015) (“In general, the concern that jurors with legal experience will bias or commandeer a jury is widespread among lawyers, and other courts have accepted it as a persuasive [race-neutral] justification.”). The record does not leave “open the possibility that the prosecution implicitly and unsuitably relied on a stereotype” in striking juror 104. See Lahman, 17 Wn. App. 2d at 937.
Nevertheless, Clifton argues that juror 104’s “personal experience of police brutality,” as indicated in her questionnaire, “was the real reason the State sought to remove her,” “not her law license.” He argues that we should construe “the fourth GR 37(g) factor to focus on the suspected, objectionable reason for the peremptory strike, rather than on the prosecutor’s stated reason.” But GR 37 does not seek to identify a “suspected, objectionable reason” that is the “real reason” for the peremptory strike; rather, “GR 37 was written in terms of possibilities, not actualities.” Lahman, 17 Wn.
3 Indeed, historically, the legal profession has not been disproportionately comprised of people of
color. See Profile of the Legal Profession 2024: Demographics, American Bar Association, https://www.americanbar.org/news/profile-legal-profession/demographics/ (last visited Aug. 19, 2026) (“Ten years ago, in 2014, lawyers of color were 12% of the profession. A decade later, in 2024, they were 23% of the profession.”).
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App. 2d at 938. “The rule recognizes the trial process must be free from the appearance of discrimination, regardless of actual motives or intent.” Id. “Circumstance (iv) requires the court to consider whether [the] stated reason for the peremptory challenge might be disproportionately associated with race or ethnicity.” State v. Hale, 28 Wn. App. 2d 619, 638, 537 P.3d 707 (2023) (emphasis added) (citing GR 37(g)(iv)).
In support of his suggestion that juror 104’s personal experience was a relevant consideration, Clifton cites State v. Listoe, 15 Wn. App. 2d 308, 475 P.3d 534 (2020). In Listoe, a juror expressed skepticism of the criminal justice system based on his personal experience and experiences of people he knew and attributed his perception to “the situation and how things are.” Id. at 322. The court noted that “although the State did not rely on these comments when exercising the peremptory challenge, [the juror]’s comments echo justifications for exclusion from a jury that have historically been associated with discrimination.” Id. Further, the court reasoned, even if the State was correct that there was no evidence that the State’s proffered reason was not disproportionately associated with a race or ethnicity, “implicit racial bias and disparate experiences might still be a factor when the only member of a racially cognizable group on the venire provides a different response to a hypothetical scenario from almost all the other prospective jurors.” Id. at 323. Thus, where the struck juror “was the only Black member of the venire” and “the only juror who voiced some skepticism with the criminal justice system due to his personal experience”—and determined that an objective observer aware of implicit bias could view race or ethnicity as a factor in the peremptory strike “[e]ven if the State’s race-neutral justification was persuasive.” Id. at 324.
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Here, by contrast, juror 104 was not the only Asian member of the venire, nor the only juror who expressed a negative opinion about law enforcement. As discussed above, under GR 37(g)(iii), we consider whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party. In this case, Clifton contends that “of the jurors with numbers lower than 127, 23 expressed negative views of law enforcement[] in their questionnaire responses” and after hardship and for-cause excusals, only five remained, of whom juror 104 was the only person of color. The State did not ask follow-up questions to any of these jurors regarding their “negative views of law enforcement,” including juror 104. Thus, unlike in Listoe, juror 104’s negative opinion about law enforcement does not support the conclusion that an objective observer who is aware of implicit bias could view race or ethnicity as a factor.
Finally, we consider GR 37(g)(v), which asks “whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present or in past cases.” Clifton concedes that factor (v) does not present cause for concern here. The record lacks information regarding the State’s use of peremptory challenges disproportionately in past cases. And in this case, the State’s use of its peremptory challenges and the final makeup of the jury suggest that race was not a factor in the State’s peremptory strike against juror 104. In total, the State used eight of its nine peremptory strikes. Six of its eight challenges were on jurors who identified as “Caucasian.” The final jury, including alternates, had four jurors of color and ten white jurors.
Accordingly, under the totality of the circumstances, we hold that an objective observer could not view race or ethnicity as a factor in the State’s peremptory strike of
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juror 104. The State challenged juror 104 because she was an attorney, and it is an acknowledged, race-neutral preference not to have lawyers on juries. While the State did not strike juror 30, a white attorney, as the State noted, “that juror’s familiarity with sexual assault issues, including a close relationship with a detective specializing in rape investigations, makes it obvious why she became an exception to the prosecutor’s general policy.” Even though juror 104 was the only person of color whom the State struck via a peremptory challenge, considering the GR 37(g) factors and the totality of circumstances, including the final makeup of the jury, de novo, we conclude the trial court did not err in denying Clifton’s GR 37 objection.
II. ER 404(b) Flight Evidence Clifton posits that the trial court erred in “admitting the ‘crawl space’ evidence” at his trial. 4 The State disagrees, arguing that the trial court “acted within its broad discretion by admitting this evidence” as flight evidence and, in the alternative, any error was harmless. We conclude the court did not err in admitting this evidence under ER 404(b).
“Evidence of other crimes, wrongs, or acts is inadmissible to prove character and show action in conformity therewith. Such evidence may, however, be admissible for other purposes, ‘such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ ” State v. Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001) (footnote omitted) (quoting ER 404(b)). To admit evidence of a person’s prior misconduct, the trial court must 1) find by a preponderance
4 It is unclear from the briefing precisely what Clifton considers the “crawl space” evidence, but
based on Clifton’s recounting of the facts and the record before us, we presume this includes State’s Exhibits 4 and 9 and related testimony from the officers concerning Clifton’s flight.
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of the evidence that the misconduct occurred, 2) identify the purpose for which the evidence is sought to be introduced, 3) determine whether the evidence is relevant, and 4) weigh the probative value against the prejudicial effect. State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012). “A ruling under ER 404(b) is reviewed solely for abuse of discretion, which occurs only where the decision of the trial court was manifestly unreasonable or based on untenable grounds.” Freeburg, 105 Wn. App. at 497 (footnote omitted).
The court determined that the State presented “sufficient and substantial evidence” of Clifton’s flight. Clifton does not challenge the evidence that showed him fleeing the scene. As to the purpose for introducing the evidence, the court admitted the evidence of Clifton’s flight as probative of his consciousness of guilt.
Flight evidence is admissible as evidence of consciousness of guilt, a purpose that does not implicate ER 404(b). See State v. Slater, 197 Wn.2d 660, 669-70, 486 P.3d 873 (2021). “It is an accepted rule that evidence of the flight of a person, following the commission of a crime, is admissible and may be considered by the jury as a circumstance, along with other circumstances of the case, in determining guilt or innocence.” State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965). “Evidence of flight is admissible if it creates ‘a reasonable and substantive inference that defendant’s departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution.’ ” Freeburg, 105 Wn. App. at 497 (quoting State v. Nichols, 5 Wn. App. 657, 660, 491 P.2d 677 (1971)). However, “the circumstance or inference of consciousness of guilt must be substantial and real, not speculative, conjectural, or fanciful.” Id. at 498.
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To determine the probative value of flight evidence, Washington courts examine “ ‘the degree of confidence with which four inferences can be drawn: (1) from the defendant’s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.’ ” Slater, 197 Wn.2d at 668-69 (quoting Freeburg, 105 Wn. App. at 498)).
Clifton argues that the four inferences are not supported here because Clifton thought he would be arrested for a violation of the rules of his EHM, 5 not “rape[,] and kidnapping or even an assault.” But the trial court specifically analyzed the four inferences articulated in Slater:
From the defendant’s behavior to flight. Well, I think that there’s evidence to support that because the alleged rape occurred not much before the flight.
From flight to consciousness of guilt. Of course, someone accused or concerned about being accused or arrested for rape may very well flee.
From consciousness of guilt to consciousness of guilt. Concerning the crime charged, I guess that it’s a similar factor there.
And from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. And, you know, that involves weighing all -- the State has evidence that this crime occurred, and there’s certainly probable cause it did occur and I’ve heard that, so I do think that there is sufficient evidence.
...
Here the evidence of flight almost right as the police arrived to investigate the rape is . . . probative and admissible as consciousness of guilt based on the evidence before me.
5 Individuals on EHM are required to get court approval for a change of address. Clifton
explained, “I was told that if I was moving out, on home detention you have to let the judge know where you’re moving to and have it verified that’s where you’re moving to and have it verified that’s where you’re going.” Clifton’s lease at the apartment complex expired the day before the incident, and he was in the process of moving but had not yet received court approval of his new address. Therefore, Clifton contends, he went to the area under the stairs because he thought he was being taken to jail for not having a valid, current, court-approved address.
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The record supports the trial court’s analysis as to all four inferences. Indeed, regarding the first two inferences—from behavior to flight and from flight to guilt—Clifton did not contest that his behavior constituted flight and that he fled because he was guilty of something. Instead, he asserts that his flight concerned his guilt related to the EHM requirement to inform the court about his address, rather than guilt related to raping M.R.
Further, the record supported the third and fourth inferences regarding guilt of the crime charged. Evidence of a defendant physically escaping from a crime scene has routinely supported “a reasonable and substantive inference that defendant’s departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or was a deliberate effort to evade arrest and prosecution.” See Nichols, 5 Wn. App. at 660; see also Slater, 197 Wn.2d at 669-70 (collecting cases). The evidence presented here was exactly that: evidence of Clifton physically fleeing from the scene. Thus, Clifton physically fleeing the scene here supports an inference of guilt of the crime charged, particularly when that flight was close in time to the alleged commission of the crime.
Clifton’s attempt to analogize this case to State v. McDaniel, 155 Wn. App. 829, 230 P.3d 245 (2010), is unavailing. Clifton argues that “[l]ike the defendant in McDaniel, [he] had an alternative explanation for his ‘flight.’ ” But this was not a basis for Division Two’s analysis. In McDaniel, the defendant was the passenger in a car driven by his girlfriend when they were pulled over by the police, who had staked out McDaniel to arrest him on several warrants, including for a shooting. Id. at 838. As the police officer stepped out of his car, the car sped away and a high-speed chase ensued. Id. The
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police “ultimately rammed the vehicle, bringing it to a stop.” Id. McDaniel exited the vehicle and refused to show his hands or lie down when instructed, so the police forced him to the ground and arrested him. Id. Division Two held that the circumstances did not support the first inference necessary to admit flight evidence, from behavior to flight, because “McDaniel was not driving the vehicle—his girl friend was,” and “[n]othing in the record suggested that she fled law enforcement under his command, so this evidence forced jurors to speculate what he did or did not tell her.” Id. at 855.
Moreover, while the State “highlight[ed] McDaniel’s refusal to cooperate with police after they rammed the vehicle in which he was driven,” the court ruled that the “evidence that he resisted arrest is admissible only if the jury can infer consciousness of guilt of the charged crimes.” Id. The court determined the evidence did not support an inference of consciousness of guilt because the charged crimes “occurred nine months earlier” and “McDaniel was wanted on several warrants, not just the one related to this incident.” Id. Unlike McDaniel, Clifton did not resist arrest once he was caught, and the charged crime occurred approximately two hours before he was arrested, not months before.
Finally, in the last step under ER 404(b), the court must weigh probative value against prejudicial effect. See Gresham, 173 Wn.2d at 421. “[T]he burden of demonstrating unfair prejudice is on the party seeking to exclude the evidence.” State v. Burkins, 94 Wn. App. 677, 692, 973 P.2d 15 (1999). The trial court has broad discretion in weighing prejudicial effect and probative value, and we will not reverse its determination absent an abuse of discretion. State v. Riker, 123 Wn.2d 351, 369, 869 P.2d 43 (1994). “A reviewing court may not find abuse of discretion simply because it
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would have decided the case differently—it must be convinced that ‘no reasonable person would take the view adopted by the trial court.’ ” State v. Salgado-Mendoza, 189 Wn.2d 420, 427, 403 P.3d 45 (2017) (internal quotation marks omitted) (quoting State v. Perez-Cervantes, 141 Wn.2d 468, 475, 6 P.3d 1160 (2000)). Clifton argues that the prejudicial effect of admitting evidence showing that Clifton was on EHM outweighed any probative value because “it indicates . . . that he’s being monitored by a criminal- justice agency, which paints a picture of him as a dangerous person” and would “force him to take the Fifth Amendment in front of the jury if they bring up [previous] charged crimes that are not convictions.”
The trial court agreed that evidence of the ankle bracelet was prejudicial to Clifton. As a result, the court ordered the photos to be redacted to exclude the ankle bracelet to obviate any prejudice from the photo.
As for the body-worn camera footage and the testimony of officers regarding Clifton’s flight, this evidence also showed the ankle bracelet and, thus, was prejudicial. And, as discussed above, where flight evidence is supported by the four inferences and thus suggests consciousness of guilt, it has probative value. See Freeburg, 105 Wn. App. at 498. Clifton argues the flight evidence here was “minimally probative” due to the alternative explanation for the flight. But Clifton cannot satisfy his burden of demonstrating that the flight evidence was unfairly prejudicial. The court had a tenable basis for determining that it was not unfairly so, balanced against the probative value.
Accordingly, we conclude that the trial court did not abuse its discretion in admitting State’s Exhibits 4 and 9 and allowing related testimony about Clifton’s flight.
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III. Statement of Additional Grounds Clifton submitted a statement of additional grounds positing the following:
Additional Ground 1
Everything in the 404(b) briefing should [have] been admitted in evidence.
CP 90-143. This is important because it shows that she looked up how to hurt someone w[]ith the police. She was mad at me for not letting her stay at my ap[artment]. This was a case of my word against hers. This shows malice in her character when she doesn’t get what she want. She strikes out at people.
Additional Ground 2
M.R. said that she had not seen [McGowen] after the alleged incident. RP 1819, 1729-32. That was a lie, because she gave him a car, and she w[]ent to his place and put dog poop on his door. RP 1729-32, CP 145, 151-53. This is a lie that the court would not let me show. That violated my Sixth Amendment right to confront my accuser RP 1775, 1820-22, CP 146-48 and my right to present a defense, and show that M.R. will lie to get what she wants.
Both grounds relate to the court’s limitation of Clifton’s questioning of M.R.
regarding her other bad acts, which Clifton sought to introduce to impeach and to show M.R. had motive to lie or that M.R. lied as part of a common scheme or plan.
Clifton filed a ER 404(b) motion to admit numerous “other acts” 6 for the purported purpose of addressing “why would [M.R.] lie,” identifying several “working theor[ies]” for why, including (1) “she was angry at him for not allowing her to stay the night in his apartment and made false allegations to punish him, just as she accused her ex- husband of doing in the interview with [an SPD detective]”; and (2) she claimed to be
6 This “other acts” evidence included M.R.’s arrest for assaulting her ex-husband; the ex-
husband’s petition for a protection order against her; the fact that she was arrested for trespass, resisted arrest, and assaulted a police officer; a traffic stop during which she was arrested on outstanding warrants and fled in her vehicle; another arrest for resisting arrest; arrest for trespass at a movie theater, being escorted away by police, and immediately returning; assaulting a man and reporting that he strangled her, which resulted in her being charged; assaulting a woman after being confronted for attempting to steal mail from the house of a man she had assaulted the day before; and being sentenced after being terminated from mental health court for repeated arrests. Some of these acts occurred before the charged incident, and some occurred after.
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the victim of a serious crime “to reframe the narrative of her life and win back sympathy from her son, primary residential custody of whom had just been awarded to” her ex- husband. The court denied Clifton’s motion.
During trial, Clifton sought to cross-examine M.R. on a subset of the topics previously raised in his motion to admit ER 404(b) evidence, claiming he had a right to impeach her. The parties discussed the issue with the court at numerous sidebars. Specifically, M.R. had testified that she had not seen McGowen after the charged incidents. Clifton sought to introduce a police report describing a confrontation between M.R. and McGowen in February 2023, approximately five months after the incident with Clifton, and to question M.R. about that incident. Clifton also sought to introduce evidence from M.R.’s marriage dissolution to impeach her on where she was living at the time of the incident. The court sustained the State’s objection to this evidence, deeming it irrelevant, but allowed Clifton to impeach M.R. with defense counsel’s interview in which she admitted she saw McGowen in person after the incident. The following morning, the court reiterated that the other prior incidents were collateral and propensity evidence and, thus, Clifton was not entitled to use this evidence to impeach M.R.
We first address Clifton’s ER 404(b) arguments and then his constitutional claims.
A. Admissibility under ER 404(b) of Evidence of M.R.’s Prior Acts Here, Clifton offered the evidence at issue to suggest that M.R. “basically has an inappropriately strong reaction to being told no” and, thus, that she falsely accused Clifton of rape when he “basically kicked her out of the apartment.” Particularly with
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regard to the February 2023 incident with McGowen, Clifton sought to invite the jury to infer that because M.R. reacted to McGowen’s rejection by “engag[ing] in a physical altercation, threaten[ing] to kill him, and smear[ing] dog feces on his apartment door,” then here, she would similarly “react[] in such an extreme manner to being” rejected by Clifton that she would falsely accuse him of rape.
Clifton fails to provide analysis or legal authority to support his argument that the court’s exclusion of proffered evidence about M.R. under ER 404(b) was an abuse of discretion. “This court will not consider claims insufficiently argued by the parties.” State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990).
In any case, the record supports the conclusion that the court’s decision was based on tenable reasoning. The court characterized the proffered evidence as character evidence under ER 404(b)7 and excluded it because there was insufficient evidence to show some of the incidents occurred by a preponderance of the evidence, the evidence was too attenuated from the incident at issue to speak to motive, was more prejudicial than probative, and would “open[] up kind of a mini-trial” on those events. Specifically, the court found that the pre-incident evidence did not establish motive because
“[t]he fact that she was arrested for assaulting her husband and he sought a protection order and that they then entered agreed orders of dissolution doesn’t establish . . . that . . . is somehow connected with this crime and that she then lied about that to gain sympathy . . . . [or] that she had some motive to lie about Mr. Clifton.”
7 Character evidence is evidence “offered for the sole purpose of proving . . . action in conformity
with [a] character trait.” State v. Scherner, 153 Wn. App. 621, 653, 225 P.3d 248 (2009), aff’d sub nom., Gresham, 173 Wn.2d 405 (2012).
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As for the post-incident evidence, the court concluded the evidence was “essentially” propensity evidence and did not demonstrate “any kind of theory of common scheme or plan, which might be the close else [sic] theory . . . when someone does repetitive behaviors,” noting “even the case law on that is pretty strict about when a common scheme or plan is admissible.”
We find no basis to conclude the court erred in excluding Clifton’s proffered evidence about M.R. under ER 404(b).
Further, the court properly prohibited Clifton from using this evidence to impeach M.R., as “[i]t is a well recognized and firmly established rule . . . that a witness cannot be impeached upon matters collateral to the principal issues being tried.” State v. Oswalt, 62 Wn.2d 118, 120, 381 P.2d 617 (1963). “An issue is collateral if it is not admissible independently of the impeachment purpose.” State v. Fankhouser, 133 Wn. App. 689, 693, 138 P.3d 140 (2006). “[E]vidence of a witness’ prior false statement is not always relevant, particularly when that evidence is unrelated to the issues in the case.” State v. Lee, 188 Wn.2d 473, 489, 396 P.3d 316 (2017). The evidence Clifton sought to admit was unrelated to the issues in the case, as it concerned M.R.’s living situation and her interactions with other individuals at different times on matters completely unrelated to M.R.’s interactions with Clifton, some of which occurred after the incident with Clifton. The trial court did not abuse its discretion in excluding the evidence either for a purpose under ER 404(b) or to impeach.
B. Confrontation Clause Both the federal and state constitutions protect the rights of criminal defendants to confront adverse witnesses. U.S. Const. amend. VI; Wash. Const. art. I, § 22;
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Crawford v. Wash., 541 U.S. 36, 42 (2004). “ ‘The primary and most important component’ of the confrontation right ‘is the right to conduct a meaningful cross- examination of adverse witnesses.’ ” State v. Orn, 197 Wn.2d 343, 347, 482 P.3d 913 (2021) (quoting State v. Darden, 145 Wn.2d 612, 620, 41 P.3d 1189 (2002)). “But the constitutional right of confrontation does not give the defendant an absolute right of cross-examination.” State v. Bravo, 33 Wn. App. 2d 749, 759, 563 P.3d 1068 (2025) (citing Lee, 188 Wn.2d at 487). The confrontation clause primarily protects “cross- examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand.” Davis v. Alaska, 415 U.S. 308, 316 (1974) (emphasis added). Therefore, judges have wide latitude in controlling the limits of cross-examination due to concerns including “ ‘interrogation that is repetitive or only marginally relevant.’ ” Lee, 188 Wn.2d at 487 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Reviewing courts apply a three-part test to determine if the trial court erred by limiting cross examination: “(1) whether the excluded evidence was at least minimally relevant, (2) whether the evidence was so ‘prejudicial as to disrupt the fairness of the factfinding process’ at trial, and if so, (3) whether the State’s interest in excluding the prejudicial evidence outweighs the defendant’s need to present it.” Orn, 197 Wn.2d at 353 (quoting State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983)). “The first prong is reviewed for abuse of discretion, and if that is met, the second two prongs are reviewed de novo.” Bravo, 33 Wn. App. 2d at 759-60.
As described above, the trial court did not abuse its discretion in determining that the issues Clifton wanted to impeach M.R. on were collateral. Because the evidence
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was not minimally relevant, Clifton fails to demonstrate the first part of the three-part test, and, consequently, there was no confrontation clause violation.
C. Right To Present a Defense “A defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence.” State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). However, “[t]he defendant’s right to present a defense is subject to ‘established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.’ ” State v. Lizarraga, 191 Wn. App. 530, 553, 364 P.3d 810 (2015) (quoting Chambers v. Miss., 410 U.S. 284, 302 (1973)).
“When a criminal defendant asserts that an evidentiary ruling has violated his constitutional right ‘to present a defense,’ we engage in a two-part analysis.” State v. Ritchie, 24 Wn. App. 2d 618, 627, 520 P.3d 1105 (2022). “First, we review the trial court’s ruling for an abuse of discretion, applying the evidentiary rule or evidentiary statue at issue.” Id. “Second, we consider de novo whether there has been a violation of the defendant’s Sixth Amendment rights.” Id.
The trial court did not abuse its discretion by excluding evidence that was irrelevant and concerned a collateral issue, as explored above. “Defendants have a right to present only relevant evidence, with no constitutional right to present irrelevant evidence.” Jones, 168 Wn.2d at 720.
Moving to the second portion of the test, the “pertinent concern is whether both parties receive a fair trial.” Ritchie, 24 Wn. App. 2d at 634. The concern that an evidentiary rule threatens a defendant’s right to a fair trial is lessened “when the rule
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being applied is a well-established, commonly utilized rule that has been applied time and again without any demonstrated detriment to the fairness of proceedings,” including the rule defining relevant evidence—ER 403. Id. at 634-35.
Furthermore, “when the defendant has an opportunity to present his theory of the case, the exclusion of some aspects of the defendant’s proffered evidence will not amount to a violation of the defendant’s constitutional rights.” Id. at 635. Here, Clifton had the opportunity to present his theory of the case, “that M.R. fabricated the allegations in anger at Mr. Clifton, after he kicked her out of his apartment.” As Clifton himself notes, “M.R. was impeached numerous times with video evidence and cell phone records” and “[t]he jury also saw video of M.R. calling Mr. Clifton the N-word, and they heard her testify that Mr. Clifton was able to assault her for many hours because he had superhuman strength typical of Native and African Americans.” Moreover, in his closing argument, Clifton compared M.R.’s testimony to her prior statements to nurses and investigators and argued that the documented injuries did not prove the conduct alleged. We hold that the court’s limitations on Clifton’s cross-examination did not violate his right to present a defense.
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CONCLUSION
We conclude that the trial court did not err by denying Clifton’s GR 37 objection, admitting evidence of his flight, or excluding ER 404(b) evidence relating to M.R. Therefore, we affirm.
WE CONCUR: