Filed Washington State Court of Appeals Division Two
April 15, 2025
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 58007-1-II
Respondent,
v.
SCOTT ALLAN THORNTON, UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—Scott Thornton was convicted of vehicular assault, failure to remain at an
injury accident (hit-and-run), and first degree attempted theft for an incident where Thornton drove
his truck over Jillian Lapell after she caught him trying to steal a trailer from her home. Thornton
asserts that at trial, a police detective and a police officer made three comments while testifying
that improperly referenced his criminal history. In all three instances, the trial court sustained
Thornton’s objection and, in two instances, the trial court instructed the jury to disregard the
comments. Thornton moved for mistrial after the second and third instances, and the trial court
denied each motion. The trial court sentenced Thornton to an exceptional sentence above the
standard range. Thornton appeals his convictions and sentence.
Thornton argues that the comments he asserts were references to his criminal history, were
trial irregularities that denied him a fair trial. He contends that the trial court erred by denying his
motions for mistrial. Thornton also argues that we should remand for the trial court to enter written
findings of fact and conclusions of law to support his exceptional sentence and to strike the $500 No. 58007-1-II
crime victim penalty assessment. Thornton has also filed a statement of additional grounds for
review (SAG).
We hold that the trial court did not abuse its discretion when it denied Thornton’s motion
for a mistrial. We affirm Thornton’s convictions, but we remand to the trial court to enter written
findings of fact and conclusions of law to support the exceptional sentence and to strike the $500
crime victim penalty assessment.
FACTS
I. BACKGROUND
Early one morning, Jillian Lapell left her house through the front door and saw a white
pickup truck backed up near her new travel trailer, which was parked in front of her house.
Thornton was in between the truck and the travel trailer. Lapell thought Thornton looked like he
had chains and was trying to hook up or unhook the trailer.
Lapell asked Thornton what he was doing. He stood up and said the trailer was being
repossessed. Lapell then walked toward the front of Thornton’s truck to take a picture of his license
plate so she could report him to the police, stopping near the passenger side of the truck but in
front of it.
Thornton yelled, “No” and began to drive the truck. 5 Verbatim Rep. of Proc. (VRP) at
543. Thornton drove to his left, away from Lapell, while Lapell appears to have run alongside the
front passenger side of the truck. Thornton hit Lapell with his truck. He first hit her hip while she
was standing, and then the wheels of the truck went over her body after she was on the ground.
Lapell’s pelvis was crushed and her right femur was broken. After hitting Lapell, Thornton drove
over a curb and hit a mailbox. He then accelerated and drove away.
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Lapell had surgeries to repair her pelvis and femur. Her right leg is now shorter than her
left leg, and she will likely have a long-term physical disability.
II. INVESTIGATION
The Tacoma Police Department responded to the scene and canvassed the neighboring
houses for security cameras that might have captured the incident. Detective Robison obtained a
home security camera video of the incident from a house on the street. Detective Robison also
obtained video footage of the same white truck at a nearby car wash. Robison used the video to
create a law enforcement bulletin with a picture of the white truck. Puyallup Police Detective
Tungsvik reached out to Detective Robison and identified the vehicle as belonging to Thornton
based on his prior contact with Thornton. Detective Robison then provided Lapell with a lineup of
photos, and Lapell identified Thornton as the driver who hit her.
Police officers arrested Thornton. Officers impounded Thornton’s truck, seized his cell
phone, and obtained search warrants for both. Detective Robison found a criminal traffic citation
inside the truck with Thornton’s name and address on it.
A detective performed a forensic extraction of Thornton’s cell phone and obtained data
from his cell phone provider. Thornton’s cell phone showed he made several phone calls and sent
messages shortly after the incident asking a friend to pick him up from the car wash.
The State charged Thornton with vehicular assault, failure to remain at an injury accident
(hit-and-run), first degree attempted theft, and first degree assault. The case proceeded to a jury
trial.
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III. TRIAL AND ALLEGED IRREGULARITIES
A. Testimony That the Police Detective Was Very Familiar with Thornton’s Truck
Detective Robison, who was an experienced detective, testified that in response to his law
enforcement bulletin seeking help identifying the owner of the white truck, Detective Tungsvik
told him Tungsvik was “very familiar” with Thornton’s truck. 3 VRP at 313. Thornton interrupted
with an objection, which the trial court sustained.
The State then continued to question Detective Robison. Thornton did not request any
curative instruction and the trial court did not instruct the jury to disregard Robison’s statement.
B. Testimony That the Detective Found a Criminal Citation in Thornton’s Truck
Detective Robison also testified that he found a criminal citation from the City of Puyallup
containing Thornton’s name and address in the white truck. Thornton objected. Outside the
presence of the jury, Thornton explained that the mention of a criminal citation violated ER 404
because it suggested a prior crime, and he asked for a mistrial.
The State responded that the citation was relevant because, in a situation where Thornton
may have allowed other people to also drive the truck, the citation showed Thornton himself had
been driving the truck two weeks prior to the incident. Although the State had attempted to redact
all references to crime, it failed to redact a reference to “refer to prosecutor” and “CT,’ meaning
criminal traffic.” 3 VRP at 367. The trial court remarked that although someone with experience
in law enforcement might connect these references to a crime, a lay person would not. The State
agreed to further redact the exhibit to black out these references, conceding that the criminal nature
of the citation should not be before the jury.
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In response to the objection to the testimony and motion for mistrial, the trial court
explained:
I’m going to deny the motion for a mistrial. .... I don’t think that this merits a mistrial, particularly when, as here, we don’t even know what the underlying criminal offense was, if it was something very similar in nature such as a hit-and-run or possessing stolen property or an assault.
It’s not to say that there is no prejudice or no unfair prejudice that attaches to its identity as a criminal citation in general, but it is to say that it’s not nearly as prejudicial, I suppose, as it could be.
And I don’t believe, in any event, it merits a mistrial when an instruction to disregard is warranted, and I trust the jury can follow the instructions of the Court.
3 VRP at 368-69. The trial court then decided that the citation was admissible with the additional
redactions to remove any reference to a crime. Finally, the trial court instructed the jury “to
disregard Detective Robison’s last answer to the last question.” 3 VRP at 372.
C. Testimony About a Felony Warrant for Thornton
City of Puyallup Police Detective Kaleb Johnson testified he was looking for Thornton’s
truck because he “knew [Thornton] to have a felony warrant.” 5 VRP at 647. Thornton’s counsel
objected and moved to strike. The trial court then told the jury to disregard the witness’s answer.
Outside the jury’s presence, Thornton again asked for a mistrial. The State explained that the
warrant Johnson was talking about was the warrant for Thornton’s arrest for the crimes at issue in
this case. The trial court responded, “What I do think is appropriate . . . Mr. Oliver, if you want
the jury to learn that this was a warrant that was outstanding not in connection with any other
matters, it just has to do with this, . . . at your option, you should be allowed to present that.” 5
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VRP at 651. Thornton declined, saying, “I’d rather not ring the bell again.” 5 VRP at 652. The trial
court then denied the motion for mistrial.
In closing, Thornton conceded that he was the person driving the truck during the incident,
but he argued that he was not trying to steal the trailer. And Thornton asserted, based on the video,
that he hit and ran over Lapell accidentally.
D. Verdict and Sentence
The jury found Thornton not guilty of first degree assault, but it convicted him of the
remaining charges. The jury also found aggravating factors for the vehicular assault, including that
Thornton was operating a vehicle recklessly and with disregard for the safety of others, and the
injuries Lapell suffered exceeded the level of injury necessary to support the conviction. The trial
court imposed an exceptional sentence above the standard range based on the aggravating factors
that the jury found, but it did not enter written findings of fact to support the exceptional sentence.
Thornton appeals his convictions and sentence.
ANALYSIS
I. MOTIONS FOR MISTRIAL
Thornton argues that “police officer testimony referencing Scott Thornton’s criminal
history denied him the right to a fair trial and the court should have granted his motion for a
mistrial.” Br. of Appellant at 11 (capitalization omitted). Specifically, he challenges three improper
statements: Detective Robison’s testimony that Detective Tungsvik was “‘very familiar’” with
Thornton’s truck, Detective Robison’s testimony that he found a criminal citation in Thornton’s
6 No. 58007-1-II
truck, and Officer Johnson’s testimony that he was looking for Thornton’s truck because he knew
Thornton to have a felony warrant. Id. at 12. We disagree.
A. Standard of Review
We apply the abuse of discretion standard when reviewing a trial court’s denial of a motion
for mistrial. State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989). We will find abuse of
discretion only “‘when no reasonable judge would have reached the same conclusion.’” State v.
Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012) (internal quotation marks omitted) (quoting
Hopson, 113 Wn.2d at 284). In addition, a trial court’s denial of a mistrial motion will be
overturned only when there is a substantial likelihood that the error affected the jury’s verdict.
State v. Garcia, 177 Wn. App. 769, 776, 313 P.3d 422 (2013).
B. Irregularities That Can Lead to Mistrial
A trial court should order a mistrial “‘only when the defendant has been so prejudiced that
nothing short of a new trial can insure that the defendant will be tried fairly.’” Id. (internal
quotation marks omitted) (quoting State v. Rodriguez, 146 Wn.2d 260, 270, 45 P.3d 541 (2002)).
In determining whether a trial court abused its discretion in denying a motion for a mistrial, we
examine (1) the seriousness of the claimed irregularity, (2) whether the irregularity was cumulative
of other properly admitted evidence, and (3) whether the irregularity could be cured by an
instruction. State v. Wade, 186 Wn. App. 749, 773, 346 P.3d 838 (2015); State v. Escalona, 49
Wn. App. 251, 254, 742 P.2d 190 (1987).
1. Seriousness of the irregularity
An irregularity is particularly serious where a jury learns of a prior conviction where both
the charges at issue and the prior conviction share the characteristic of being violent felonies. See
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State v. Young, 129 Wn. App. 468, 476, 119 P.3d 870 (2005). In Young, the court granted a mistrial
where the jury venire learned of the defendant’s prior second degree assault conviction and the
defendant was accused of killing a person with a deadly weapon. Id. at 470-71. The mistaken
disclosure was “a serious irregularity that [was] inherently prejudicial,” where the two charges at
trial were “also violent felonies—murder and first degree assault.” Id. at 476.
Where the disclosed prior conviction and the charges at trial are for the same crime and
same method of committing the crime, the seriousness of the improper disclosure weighs even
more heavily in favor of a mistrial. See Escalona, 49 Wn. App. at 255-56. In Escalona, a witness
statement that the defendant “already has a record and had stabbed someone” was “extremely
serious,” and “‘inherently prejudicial’” where the defendant “was charged with second degree
assault while armed with a deadly weapon, a knife.” Id. at 252, 255-56 (quoting State v. Miles, 73
Wn.2d 67, 71, 436 P.2d 198 (1968)). In contrast, where disclosed prior criminal behavior was a
misdemeanor drug violation and the charges at trial involved murder, the improper disclosure was
less serious and did not warrant a mistrial. Wade, 186 Wn. App. at 775. Also, where the disclosure
to the jury involved “no information concerning the nature or number of prior convictions,” it was
less serious and did not warrant a mistrial. Hopson, 113 Wn.2d at 286.
Where a disclosure of a prior act violates a motion in limine, this increases the seriousness
and supports a mistrial. State v. Gamble, 168 Wn.2d 161, 178, 225 P.3d 973 (2010) (“[A] violation
of a pretrial order is a serious irregularity.”); see Escalona, 49 Wn. App. at 252-53 (granting
mistrial where pretrial motion in limine to exclude any mention or reference to defendant’s prior
conviction was violated by a witness’s statement that “[defendant] already has a record and had
stabbed someone”).
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Where the person disclosing the defendant’s prior act is a professional witness, like a law
enforcement officer, this increases the seriousness of the improper disclosure. Gamble, 168 Wn.2d
at 178. Moreover, “[a]n intentional introduction of inadmissible evidence relating to criminal
history is more serious than an unintentional interjection of inadmissible testimony.” Id. at 178.
Reiteration of a comment may indicate deliberateness. See, e.g., State v. Taylor, 60 Wn.2d 32, 36,
371 P.2d 617 (1962).
Finally, when evaluating seriousness, the court may also consider the overall strength of
the State’s case. For example, in Escalona, reference to Escalona’s prior stabbing of a different
victim was serious in part because the State’s overall case was weak. Escalona, 49 Wn. App. at
256.
2. Remaining factors
Where the information revealed by an irregularity is cumulative of properly admitted
evidence, this factor weighs against a mistrial. See e.g., Hopson, 113 Wn.2d at 286. Where the
court gives the jury a curative instruction, this factor weighs heavily against a mistrial, in part
because we presume the jury follows instructions from the trial court. See id. at 287; Gamble, 168
Wn.2d at 178. But the immediacy of the instruction matters and delay in giving the instruction can
impair its efficacy, especially where the jury is permitted to consider the evidence overnight
without being instructed to disregard it. State v. Gogo, 29 Wn. App. 2d 107, 116, 540 P.3d 150
(2023). Moreover, an attempt at an instruction “is not curative where it ‘fail[s] to inform the jury
that the . . . comment was improper and not to be considered.’” Id. (alterations in original) (quoting
State v. Davenport, 100 Wn.2d 757, 764, 675 P.2d 1213 (1984)). And some evidence is so
inherently prejudicial that an instruction cannot cure the prejudice. Hopson, 113 Wn.2d at 286. 9 No. 58007-1-II
C. The Trial Court Did Not Err When It Denied Thornton’s Motions for Mistrial
Detective Robison’s testimony that Detective Tungsvik was “very familiar” with
Thornton’s truck was not in itself serious and could have been cured by an instruction to disregard
had Thornton requested one. 3 VRP at 313. This testimony revealed “no information concerning
the nature or number of prior convictions” or even that Thornton had any prior convictions at all.
Hopson, 113 Wn.2d at 286. Upon further reflection, the trial court noted that this statement was
not improper. Even assuming it was improper, although Detective Robison was an experienced
professional witness, there was no indication that Robison knew the testimony was improper and
gave it anyway. Thus, the testimony did not amount to a serious irregularity: it does not appear the
testimony was intentionally improper, and any prejudice could have been cured, outweighing the
extent of the testifying detective’s experience and the lack of properly admitted cumulative
evidence.
Detective Robison’s testimony that he found a criminal citation in Thornton’s truck was
somewhat serious because he was an experienced professional witness and a criminal traffic
citation could suggest to the jury that Thornton had driven recklessly in the past. But the similarity
between the prior act and the charges at issue in the trial does not rise to the level of similarity in
Escalona, where both crimes involved assault with a knife, or in Young, where the prior acts and
charges at trial were all violent felonies. Escalona, 49 Wn. App. at 252; Young, 129 Wn. App. at
476. The testimony here did not reveal any specific prior conviction, only a vague citation, and the
cited act was not obviously similar to the charges at trial. A redacted copy of the citation was
admitted as exhibit 35 because it connected Thornton to the truck, so the jury was legitimately
aware that Thornton had received a traffic citation. In addition, the trial court told the jury to ignore
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the detective’s statement that it was a criminal citation. On balance, considering all of the relevant
factors, we conclude that the trial court did not err when it denied the motion for mistrial based on
this testimony combined with the prior statement that Tungsvik was very familiar with Thornton’s
truck.
Officer Johnson’s testimony that he was looking for Thornton’s truck because he knew
Thornton to have a felony warrant was not improper in context, and the trial court offered Thornton
an opportunity to clarify to the jury that the felony warrant was issued in connection with the
investigation for this case. Thus, the trial court offered to make clear that this comment did not
refer to any prior crime. Such a clarification could have decreased the possible prejudice against
Thornton. However, Thornton chose not to clarify that the felony warrant was related to this case
at trial because he did not want to “ring the bell again” in the minds of the jury. 5 VRP at 652. And
even though Officer Johnson’s testimony about his awareness of Thornton’s felony warrant was
not improper, the trial court immediately told the jury to disregard it. Thus, the trial court did not
abuse its discretion when it denied a mistrial based on this testimony.
The second motion for mistrial occurred after all three alleged irregularities occurred.
Thornton emphasizes that the combined effect of the irregularities was prejudicial and the trial
court should have granted the final request for mistrial based on the cumulative effect of all three
instances.
Cumulative error may warrant reversal, even if each error standing alone would otherwise
be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006). But even
considering the cumulative effect of all three alleged irregularities, the trial court did not abuse its
discretion in denying a mistrial. The combined nature of the testimony at issue was not serious. 11 No. 58007-1-II
The trial court immediately issued curative instructions regarding the second and third alleged
irregularities, and Thornton did not request a curative instruction regarding the first irregularity.
Even considering the combined effect, the trial court did not err when denying a mistrial based on
the cumulative nature of the testimony discussed above.
Moreover, there was not a substantial likelihood that the alleged irregularities would have
affected the jury’s verdict. Garcia, 177 Wn. App. at 776. In closing, Thornton conceded he was
the driver of the truck and argued that the injuries to Lapell were accidental. But the members of
the jury were able to view a video of the incident, so they could evaluate for themselves what
happened. None of the alleged irregularities specifically identified any similar prior crimes, and
curative instructions were given for two instances of the challenged testimony, minimizing their
impact. In addition, Thornton was given an opportunity to explain to the jury that the mention of
a felony warrant was related to the instant case. Under these circumstances, there is not a
substantial likelihood that the verdict was affected.
In sum, the trial court did not abuse its discretion when it denied the motions for mistrial.
II. REMAND TO ENTER FINDINGS OF FACT AND CONCLUSIONS OF LAW
Thornton asks that we remand this matter to the trial court to enter the required written
findings of fact and conclusions of law to support his exceptional sentence. Whenever a sentence
outside the standard sentencing range is imposed, the court shall set forth the reasons for its
decision in written findings and conclusions. RCW 9.94A.535. The remedy for a trial court’s
failure to enter written findings and conclusions is to remand for the trial court to do so. State v.
Friedlund, 182 Wn.2d 388, 395, 341 P.3d 280 (2015). The State concedes that remand for this
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purpose is appropriate. We accept the State’s concession and accordingly remand for the trial court
to enter written findings of fact and conclusions of law to support the exceptional sentence.
III. CRIME VICTIM PENALTY ASSESSMENT
Thornton asks that we also remand to strike the crime victim penalty assessment. The $500
assessment was mandatory at the time of Thornton’s sentencing in February 2023. See former
RCW 7.68.035(1)(a) (2018), amended by LAWS OF 2023, ch. 449, § 1(4). However, the legislature
has since eliminated the assessment for indigent defendants. RCW 7.68.035(4). The State concedes
that remand for purposes of striking the assessment from Thornton’s judgment and sentence is
appropriate. We accept the State’s concession and accordingly remand for the trial court to strike
the $500 crime victim penalty assessment from Thornton’s judgment and sentence.
IV. STATEMENT OF ADDITIONAL GROUNDS
Thornton raises numerous arguments in his SAG that depend on matters outside the record.
He asserts a police officer searched materials not authorized in a search warrant, and Thornton
requests evidence about what the officer looked at; he contends a juror was possibly related to this
court’s clerk; and he argues a prosecutor rearraigned Thornton after he had bailed out with the
improper motive of keeping him in custody. Under State v. McFarland, 127 Wn.2d 322, 335, 899
P.2d 1251 (1995), “[i]f a defendant wishes to raise issues on appeal that require evidence or facts
not in the existing trial record, the appropriate means of doing so is through a personal restraint
petition.” We decline to address these arguments because they rely on evidence outside the record
in this appeal. Additionally, the argument that the prosecutor rearraigned Thornton after he bailed
out with the improper motive of keeping him in custody is moot because bail decisions become
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moot postconviction absent an issue of substantial public import. State v. Heng, 22 Wn. App. 2d
717, 738-39, 512 P.3d 942 (2022), aff’d, 2 Wn.3d 384, 539 P.3d 13 (2023).
Thornton also asserts that he was referred to as “the defendant” by various witnesses and
the judge during trial and this prejudiced him before the jury. We decline to address this issue
because he has not provided sufficient explanation and fails to inform us as to how this was
improper or prejudicial under RAP 10.10(c), where it was clear to the jury that he was the
defendant. Moreover, the issues Thornton raises regarding the testimony of Detective Robison and
Detective Johnson are duplicative of those briefed by counsel.
Finally, Thornton argues the trial court did not allow one of his witnesses, Trevor
Dickinson, to testify based on a motion filed by the State because Dickinson was present in the
courtroom during testimony. Thornton argues the court should also have excluded Detective
Darrin Reda as a witness for the same reason. Thornton is mistaken that Dickinson was excluded
as a witness—although the State did file a motion to exclude Dickinson as a witness for violating
the court’s order for exclusion of witnesses from the courtroom, the State ultimately withdrew its
request that the court prohibit Dickinson’s testimony. Furthermore, the detective would have had
difficulty modifying his testimony to align with or respond to prior witnesses. Reda’s testimony
was about the forensic examination he performed on Thornton’s cell phone. No other witnesses
testified about the content of Thornton’s cell phone, and any testimony given about the content on
the phone could be verified, making it highly unlikely Reda could tailor his testimony to be
consistent with other testimony he heard. Thus, the trial court’s decision not to exclude Reda as a
witness does not warrant reversal.
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CONCLUSION
We affirm Thornton’s convictions. We remand to the trial court to enter the required
findings of fact and conclusions of law to justify the exceptional sentence and to strike the crime
victim penalty assessment from Thornton’s judgment and sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
GLASGOW, J.
We concur:
VELJACIC, A.C.J.
PRICE, J.