IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, No. 83316-2-I
Respondent,
v. UNPUBLISHED OPINION
RONALD JEFFREY GUNTER,
Appellant.
BOWMAN, J. — Ronald Jeffrey Gunter appeals his jury conviction for
domestic violence (DV) first degree arson with a DV aggravator, alleging several
errors occurred during his bifurcated trial. Gunter argues that a detective’s
improper opinion testimony deprived him of his right to a fair trial, that the court
erred by admitting irrelevant prior DV convictions during the aggravator phase of
his trial, and that the prosecutor committed misconduct by misstating the law to
the jury during rebuttal closing argument. Gunter also asserts ineffective
assistance of counsel and cumulative error. We affirm.
FACTS
Gunter is Kristi Dutson’s estranged brother. Shortly before 3:00 a.m. on
May 30, 2019, Gunter went to Dutson’s home uninvited. A security camera
above Dutson’s front door recorded Gunter pouring liquid from a plastic gas
container onto the doormat. Gunter then appears to ignite the liquid and run
away.
This opinion bases the citations and pin cites on the Westlaw online version of the cited material. No. 83316-2-I/2
Dutson’s son, Ethan,1 was awake in his second-floor bedroom and looking
out his window when he saw an “orange glow” coming from the front porch. He
went downstairs to investigate and saw smoke and flames breaching the front
door. The window above the door and the two windows on either side of the
door had exploded and flames were coming through the openings. Ethan ran to
his parents’ room, screamed “fire” several times, then called 911.
The Bellevue Fire Department and police arrived at the home and
firefighters extinguished the flames. Dutson then watched the front door
surveillance footage from the security camera and recognized the individual
setting the fire as her brother, Gunter. Meanwhile, Bellevue Police Detective
Gregory Oliden walked the scene, took photographs, and documented his
observations. He smelled a “strong” odor of gasoline around the outside of
Dutson’s house, especially around the front door area and north side of the
house. He also viewed Dutson’s surveillance footage. Because of extensive
structural and smoke damage, the Dutsons had to move out of their home for
four to six months during repairs.
The State charged Gunter with DV first degree arson. It later amended
the information, alleging the crime was an aggravated DV offense and part of an
ongoing pattern of abuse. Gunter did not deny starting the fire. Instead, he
claimed diminished capacity.
At the bifurcated trial, Detective Oliden testified that based on everything
he saw on May 30, 2019, “someone was trying to burn down this house.” The
1 We refer to Ethan Dutson by his first name for clarity.
2 No. 83316-2-I/3
parties then offered competing expert testimony about Gunter’s capacity to
formulate the requisite intent. In closing, Gunter argued that when he set the fire,
he was suffering from a manic episode due to his bipolar disorder and could not
appreciate the consequences of his actions.
A jury convicted Gunter of first degree arson at the end of the trial phase.2
By special verdict, it found Gunter and the Dutsons were members of the same
family at the time he set the fire. The trial court then moved to the aggravator
phase. The State offered and the court admitted certified copies of court records
showing Gunter’s prior convictions for seven DV offenses between 2008 and
2017. The jury determined by special verdict that the crime was an aggravated
DV offense.
Gunter moved to set aside the jury’s verdict as to the aggravator,
asserting that insufficient evidence supported an ongoing pattern of abuse. The
court denied his motion, imposed an upward exceptional sentence of 101.5
months, and entered findings of fact and conclusions of law in support of the
exceptional sentence.
Gunter appeals.
ANALYSIS
Gunter argues Detective Oliden denied him a fair trial by impermissibly
expressing an opinion about his guilt, the trial court erred by admitting several
irrelevant prior DV convictions during the aggravator phase of his trial, and the
prosecutor committed misconduct during rebuttal closing argument of the
2 The court also gave jury instructions for the lesser included offenses of reckless burning in the first degree and arson in the second degree.
3 No. 83316-2-I/4
aggravator phase of trial. He also asserts ineffective assistance of counsel and
cumulative error.
Opinion Testimony
Gunter argues Detective Oliden’s testimony impermissibly expressed an
opinion about his guilt to the jury, depriving him of his right to a fair trial. We
disagree.
We review a trial court’s decision to admit expert testimony for an abuse of
discretion. State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007). The
court abuses its discretion when its decision is manifestly unreasonable or based
on untenable grounds or reasons. State v. Quaale, 182 Wn.2d 191, 197, 340
P.3d 213 (2014). An evidentiary decision is manifestly unreasonable if it is
contrary to law. Id. at 196.
Under ER 701, a lay witness may express an opinion that is (a) rationally
based on the perception of the witness, (b) helpful to a clear understanding of the
witness’ testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope of ER 702.
Under ER 702, an expert may express an opinion if scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue. The witness must be qualified as an expert by
knowledge, skill, experience, training, or education. ER 702.
“Generally, no witness, lay or expert, may give an opinion, directly or
inferentially, on the defendant’s innocence or guilt.” State v. Johnson, 152 Wn.
App. 924, 930, 219 P.3d 958 (2009). Impermissible opinion testimony relating to
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a defendant’s guilt violates the defendant’s constitutional right to a jury trial,
which includes the independent determination of the facts by the jury. State v.
Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). But “[t]estimony in the form
of an opinion or inferences otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.” ER 704. Whether
testimony amounts to an impermissible opinion about the defendant’s guilt
depends on the circumstances of the case, including (1) the type of witness
involved, (2) the specific nature of the testimony, (3) the nature of the charges,
(4) the type of defense, and (5) the other evidence before the trier of fact.
Johnson, 152 Wn. App. at 931.
Detective Oliden testified in his capacity as an arson investigator with
training, continuing education, and experience in identifying arson since 2017.3
He walked the jury through his investigation at the Dutson residence on May 30,
2019. He told the jury what he observed when he arrived at the scene, including
a charred front door, doormat, and door frame, smoke damage to the entryway
and eaves, and blackened and broken windows above and next to the front door
because of the intense heat of the fire. He also smelled gas outside the front
area of the house and on the north side. But he explained that while he smelled
gasoline on the north side of the home, he found no evidence that someone set a
fire there. The prosecutor and Detective Oliden then had the following exchange:
Q. . . . Were you able to form an opinion about what you thought was going on in this area?
3 Gunter does not contest Detective Oliden’s qualifications to testify as an expert arson investigator.
5 No. 83316-2-I/6
A. Yes. I believe that based on what I saw at the front door and the fire damage, and based on what I saw on the surveillance footage, when I smelled the gasoline on this [north] side of the house, I believe that somebody was trying to burn down this house.
Defense counsel objected as “improper opinion.” The court overruled the
objection.4
Citing State v. Farr-Lenzini, 93 Wn. App. 453, 970 P.2d 313 (1999),
Gunter argues that Detective Oliden’s testimony amounts to an opinion on
Gunter’s state of mind, which was “the core issue for determining guilt.” In Farr-
Lenzini, a Washington State Patrol trooper observed the defendant drive her car
recklessly. Id. at 456. The trooper activated his lights and siren, but the
defendant kept driving for over four miles. Id. at 457-58. The State charged the
defendant with attempting to elude a police officer. Id. at 458. At trial, the
trooper testified that the defendant’s driving showed that she “ ‘was attempting to
get away from me and knew I was back there and refusing to stop.’ ” Id. The
defendant testified that she did not see or hear the patrol car at first. Id. at 457.
Division Two of our court held that the trooper’s testimony amounted to an
improper opinion. Id. at 465. The court explained that “there was an insufficient
foundation to qualify the trooper as an expert for purposes of expressing an
opinion as to [the defendant]’s state of mind.” Id. at 461. Nor was the opinion
admissible lay testimony. Id. at 462.
4 The prosecutor also asked Detective Oliden whether someone set a fire on the north side of the house. In response, he testified, “I felt that that was going to be the intent.” But defense counsel objected and the prosecutor withdrew the question. Error is generally not available to a defendant where a question is asked but withdrawn. See State v. Hunter, 183 Wash. 143, 163, 48 P.2d 262 (1935). And at oral argument, Gunter conceded that this testimony was not the focus of his argument on appeal.
6 No. 83316-2-I/7
This case is different than Farr-Lenzini. Here, Detective Oliden was
qualified to testify as an expert arson investigator. And his opinion that
somebody tried to “burn down this house” was within his area of knowledge. He
based his testimony that somebody intentionally set the house on fire on his
training and experience as well as his observations at the scene. Those
observations included the smell of gasoline on two sides of the home, security
footage of Gunter pouring liquid from a plastic gas can onto the front porch,
igniting the liquid, and running away, and the damage caused by the intensity of
the resulting fire.
And Detective Oliden’s testimony did not go to “the core issue” of Gunter’s
state of mind. Gunter conceded that he intentionally lit the fire but argued
through expert testimony that he could not form the capacity to do so maliciously.
His expert psychiatrist testified that “[i]t’s like you’re dealing with the judgment of
a [three]-year old. . . . It’s like, ‘Yeah, I’ve got a lighter. Yeah, I can start stuff on
fire. Yeah, look, I set the curtains on fire.’ ” So, “to a manic person whose
judgment is horrible, . . . it probably seemed like a perfectly appropriate thing to
do at the time.” But Detective Oliden’s testimony commented on only the origin
of the fire. It did not touch on the “core issue” of whether Gunter appreciated the
nature of his actions. Detective Oliden did not offer an improper opinion on
Gunter’s guilt.
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Admissibility of Prior Convictions
Gunter argues that the trial court erred by admitting several irrelevant prior
convictions for DV as evidence that he committed an aggravated DV offense.
Trial courts determine whether evidence is relevant and admissible, and
we review the trial court’s rulings for abuse of discretion. State v. Brockob, 159
Wn.2d 311, 348, 150 P.3d 59 (2006). Evidence is “relevant” if it tends “to make
the existence of any fact . . . of consequence to the determination of the action
more . . . or less probable.” ER 401. The threshold to admit relevant evidence is
very low. State v. Briejer, 172 Wn. App. 209, 225, 289 P.3d 698 (2012). Even
minimally relevant evidence is admissible. Id.
To find that a crime is an aggravated DV offense, the State must show
beyond a reasonable doubt that (1) the victim and the defendant were family or
household members and that (2) the offense was part of an ongoing pattern of
psychological, physical, or sexual abuse manifested by multiple incidents over a
prolonged period of time. RCW 10.99.020(4); RCW 9.94A.535(3)(h)(i), .537(3).
The victims of the prior abuse need not be the same victim or victims of the
current offense. State v. Sweat, 180 Wn.2d 156, 163-64, 322 P.3d 1213 (2014).
And there is no set amount of time required for finding a prolonged pattern of
abuse. See State v. Atkinson, 113 Wn. App. 661, 671-72, 54 P.3d 702 (2002)
(DV abuse over 7 to 10 months during which at least three incidents of abuse
required victim to seek medical attention sufficient to establish ongoing pattern of
abuse); State v. Daniels, 56 Wn. App. 646, 652-54, 784 P.2d 579 (1990)
(multiple incidents of child abuse within the 5-month charging period enough to
8 No. 83316-2-I/9
support prolonged pattern of abuse); State v. Epefanio, 156 Wn. App. 378, 392,
234 P.3d 253 (2010) (affirming jury finding that 5 to 6 weeks of sexual abuse was
“a prolonged period of time”).
Gunter argues that five of his past DV convictions admitted by the trial
court are irrelevant to whether he engaged in an ongoing pattern of abuse.
Specifically, he challenges the relevance of a 2011 conviction for DV third degree
theft, three convictions for violating a DV no-contact order (NCO) in 2016, 2017,
and 2018, and a 2018 conviction for DV malicious mischief in the third degree.5
According to Gunter, these prior convictions are not relevant because “these
convictions could not rationally establish abusive conduct in the absence of any
factual basis revealing the nature of the illegal conduct.” We disagree.
Gunter’s convictions for violating DV NCOs show that he repeatedly
contacted intimate partners or family members who sought legal protection from
his “abuse, violence, harassment, stalking, neglect, or other threatening
behavior.” See RCW 7.105.900; former RCW 26.50.110 (2017). His conviction
for DV malicious mischief in the third degree shows that he knowingly damaged
the property of an intimate partner or family member. See RCW 9A.48.090;
RCW 10.99.020(4). And his DV third degree theft conviction shows that he
unlawfully took property from an intimate partner or family member. See RCW
9A.56.050; RCW 10.99.020(4). These incidents tend to make it more probable
5 The trial court also admitted two prior DV assault convictions from 2008 and 2016. Those convictions are not at issue in this appeal.
9 No. 83316-2-I/10
that Gunter’s current offense was part of an ongoing pattern of abuse. The trial
court did not err by admitting evidence of Gunter’s prior DV convictions.6
Prosecutorial Misconduct
Gunter argues that the prosecutor committed misconduct during rebuttal
closing argument by misstating the law of the case and misleading the jury during
the aggravator phase of trial. Again, we disagree.
To prevail on a claim of prosecutorial misconduct, a defendant must show
that the conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d
667, 675, 257 P.3d 551 (2011). Prejudice is established where there is a
substantial likelihood that the misconduct affected the jury’s verdict. Id. We
review a prosecutor’s comments in the context of the entire record and the
circumstances at trial. Id.
During closing argument, the prosecutor has wide latitude to argue
reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438,
448, 258 P.3d 43 (2011). But a prosecutor may not misstate the law to the jury
or mislead it. State v. Warren, 165 Wn.2d 17, 26-27, 195 P.3d 940 (2008).
Misstating the law of the case to the jury is a serious irregularity having the grave
6 Gunter claims that defense counsel was ineffective for failing to argue that the court should have excluded his prior DV convictions under ER 403. According to Gunter, the court likely would have excluded the evidence because at a post-trial hearing, the trial judge said the convictions “held very little weight” as evidence of a pattern of abuse. To establish ineffective assistance of counsel, Gunter must show that counsel’s performance was deficient and that it prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). But the only legal basis Gunter offers to support his contention that the evidence was inadmissible under ER 403 is that it likely confused and misled the jury into finding the aggravating factor based on only ongoing DV instead of ongoing abusive conduct. Because we conclude that Gunter’s prior DV convictions tend to show abusive conduct, we also reject his ineffective assistance of counsel claim.
10 No. 83316-2-I/11
potential to mislead the jury. State v. Davenport, 100 Wn.2d 757, 763, 675 P.2d
1213 (1984).
Gunter argues that the prosecutor misstated the law and “egregiously
misled the jury” during the DV aggravator phase of the trial when she “essentially
told the jury it could not concern itself with the lack of evidence presented by the
State.” He claims her argument conflicted with the court’s instruction to the jury
that a reasonable doubt is “a doubt as would exist in the mind of a reasonable
person after fully, fairly, and carefully considering all of the evidence or lack of
evidence.” But Gunter mischaracterizes the State’s rebuttal argument.
In closing argument, defense counsel told the jury that nothing in the
court’s instructions says that “just because something is listed as a [DV] crime,
that, therefore, it’s part of some sort of pattern of psychological . . . abuse.” She
highlighted the redacted judgment and sentence for Gunter’s 2011 DV third
degree theft conviction, arguing that because there is no information about the
underlying facts of the crime, including who the victim was, the jury could not find
that the incident contributed to an ongoing pattern of abuse. She then called the
jury’s attention to the State’s failure to call any witnesses to prove the
aggravating factor. Defense counsel noted that Dutson testified during the guilt
phase of the trial and then asked the jury, “[W]hy didn’t we hear from Krist[i]
Dutson? Why didn’t we hear from the family? Why didn’t we hear from
individuals relating to these prior convictions?”
In rebuttal, the prosecutor correctly explained to the jury that the State
need not show that Gunter’s prior DV convictions involved the same victims as
11 No. 83316-2-I/12
the current offense to prove the DV aggravating factor. And she told the jury that
“[j]ust like you were given instructions in the first part of this jury trial and the
second one, you can’t speculate as to which evidence came in and why or if
evidence did not come in and why.” The State argued that the certified records
of Gunter’s convictions sufficiently supported finding that he committed the
aggravator:
There’s nothing that requires each of these to be [DV] offenses, but the State still has proved those to you, as well. I’m not asking you to speculate about who these prior victims are. You can’t speculate as to why Krist[i] Dutson could not come in for the second portion of this trial. [DEFENSE COUNSEL]: Objection; facts not in evidence, improper argument. [PROSECUTOR]: Your Honor, this is rooted in the jury instruction and is direct rebuttal to what was stated in Defense’s closing. [DEFENSE COUNSEL]: What the State is saying is inaccurate. [JUDGE]: Sustained. [PROSECUTOR] (Continuing): I’m not asking you to speculate. I’m asking you to just look at what the evidence is for this portion. And you’re all reasonable, smart people, so you can make your own determinations and conclusions based on those certified documents.
Viewed in context, the State responded to defense counsel’s argument
that it had the burden to show the identity of Gunter’s prior victims and to explain
why it did not call Dutson as a witness in the aggravator phase of the trial. The
State did not argue that the jury could not consider a lack of evidence in deciding
whether the State met its burden of proving an ongoing pattern of abuse.
Instead, the State accurately argued that the law does not require it to prove the
identity of Gunter’s prior victims to establish that pattern. See RCW
9.94A.535(3)(h)(i); Sweat, 180 Wn.2d at 163-64. Similarly, the State accurately
12 No. 83316-2-I/13
commented that the jury could not speculate about why Dutson did not testify in
the second part of the trial. Dutson’s testimony establishing herself as a prior
victim of Gunter’s DV was not relevant to any issue in the aggravator phase of
the trial. And nothing in the prosecutor’s comment suggested to the jury that they
could not consider the lack of facts and circumstances supporting Gunter’s prior
convictions in reaching its determination. The prosecutor’s comments were not
improper.
But even if the prosecutor’s comments were improper, they were in
response to defense counsel’s closing argument and do not warrant reversal.
See State v. Fleeks, __ Wn. App. 2d __, 523 P.3d 220, 241 (2023) (“Even
improper statements are not a basis for reversal when they occur as a fair
response to defense counsel’s arguments or where otherwise provoked.”). And
Gunter shows no prejudice because of the State’s comments. The court
instructed the jury twice—before the trial phase and again before the aggravator
phase—that it could base its reasonable doubt determination on “the evidence or
lack of evidence.” We presume that jurors follow the court’s instructions. State
v. Edvalds, 157 Wn. App. 517, 525, 237 P.3d 368 (2010).
We reject Gunter’s argument that we must reverse his conviction because
of prosecutorial misconduct.7
7 Gunter also argues that as much as “defense counsel in any way waived the prosecutorial misconduct challenge or contributed to the prejudicial effect by failing to ensure the trial court struck the prosecutor’s offending argument or offered a curative instruction, defense counsel was ineffective.” Because we address Gunter’s argument on its merits and determine that the prosecutor did not commit misconduct, we need not address this claim.
13 No. 83316-2-I/14
Cumulative Error
Gunter argues that cumulative error deprived him of a fair trial. The
cumulative error doctrine entitles a defendant to a new trial “when cumulative
errors produce a trial that is fundamentally unfair.” State v. Emery, 174 Wn.2d
741, 766, 278 P.3d 653 (2012). Reversal is not required where the errors are
few and have little to no effect on the outcome of the trial. State v. Greiff, 141
Wn.2d 910, 929, 10 P.3d 390 (2000). Because no trial error occurred here, the
cumulative error doctrine does not apply.
In sum, Detective Oliden did not offer an improper opinion on Gunter’s
guilt, the trial court did not err in admitting evidence of Gunter’s prior DV
convictions during the aggravator phase of his trial, the prosecutor’s statements
during closing argument did not amount to misconduct, Gunter does not show
ineffective assistance of counsel, and the cumulative error doctrine does not
apply. We affirm.
WE CONCUR: