Filed Washington State Court of Appeals Division Two
May 27, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 60152-4-II
Respondent,
v.
WALTER RAY POOLE, UNPUBLISHED OPINION
Appellant.
LEE, J. — Following a jury trial, Walter R. Poole appeals his conviction for second degree
assault against Billie Jo Vargas. Poole raises several challenges on appeal, including improper
witness opinion testimony, prosecutorial misconduct, ineffective assistance of counsel, and
cumulative error.
Regarding improper witness opinion testimony, because Poole raises the issue for the first
time on appeal and fails to demonstrate a manifest error affecting a constitutional right, Poole has
failed to preserve this issue for appeal, and we decline to review this issue. With regard to the
prosecutorial misconduct claim, because the State did not improperly bolster its witness’s
credibility, there was no prosecutorial misconduct. With regard to the ineffective assistance of
counsel claim, because defense counsel did not perform deficiently by not objecting to certain
witness testimony and because Poole fails to establish prejudice, Poole’s claim of ineffective
assistance fails. Finally, because no combination of errors deprived Poole of a fair trial, the
cumulative error doctrine does not apply. Accordingly, we affirm. No. 60152-4-II
FACTS
A. BACKGROUND
In the early morning hours of January 27, 2024, law enforcement responded to a 911 call
from Vargas, claiming that her husband, Poole, had strangled her.
When officers arrived at Vargas and Poole’s residence, they found Vargas sitting inside an
idling truck in the driveway. Vargas was sitting in the driver’s seat, “crying and . . . frantic.”
Verbatim Rep. of Proc. (VRP) (Sep. 11, 2024) at 263. Deputy Joel Nault spoke with Vargas.
Deputy Nault immediately observed that Vargas had “redness around her neck and left ear and a
scabbing cut to her jaw line.” VRP (Sep. 11, 2024) at 266. Vargas stated that Poole had “‘choked’”
her. VRP (Sep. 11, 2024) at 265.
Shortly after the officers arrived, Poole stepped outside of the house. Deputy Nault
instructed Poole to speak with another officer while Deputy Nault and Vargas went inside the
house.
Vargas told Deputy Nault that she and Poole had gone to bed earlier that evening; however,
she woke up around 11 p.m. to find Poole gone. Vargas called Poole several times and sent him
text messages, but Poole did not immediately answer. Poole eventually answered one of Vargas’
calls, and Poole returned home.
When Poole came home, Vargas was in bed. According to Vargas, she woke up to Poole
on top of her and squeezing her neck. Vargas attempted to fight Poole off of her, but lost
consciousness.
The next thing Vargas recalled was seeing Poole standing a few feet away from her. Vargas
grabbed her phone with the intention of calling the police. Poole snatched Vargas’ phone from
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her hand, and the two proceeded to fight over her phone. Ultimately, Vargas obtained her phone,
fled the house, and got into her truck, where she called the police. Poole followed Vargas outside,
and according to Vargas, grabbed a furniture dolly and swung it at the truck “like he was going to
break [the] windows.” VRP (Sep. 11, 2024) at 224. Law enforcement arrived shortly thereafter.
Sergeant Howard Reynolds spoke with Poole regarding the incident. Sergeant Reynolds
could smell alcohol on Poole from three to eight feet away. Additionally, Sergeant Reynolds
observed an injury on Poole’s ring finger.
Poole informed Sergeant Reynolds that he had wanted to be intimate with Vargas that
evening, but she rejected him. Poole then left to go to the casino.
When Poole arrived at the casino, he saw Vargas calling his phone. He initially did not
pick up, but he answered after a third call. Vargas wanted him to return home. Poole went home.
According to Poole, Vargas was awake when Poole returned home. Vargas was upset and
questioned where Poole had been. Poole and Vargas argued for a few minutes, then Poole
proceeded to go to bed. Poole laid down in bed while Vargas sat on the other side of the bed.
Vargas began elbowing him. Poole grabbed Vargas’ arms to prevent her from elbowing him and
held her in a “cross-collar choke,” a technique taught in “Army Combative,” a component of basic
combat training in the army. Clerk’s Papers (CP) at 2.
Vargas fled the house. Poole followed Vargas. According to Poole, Vargas grabbed a
furniture dolly and put it in Poole’s path to obstruct him. Vargas then got into her truck. Poole
picked up the furniture dolly and “was going to throw it on the back of the truck to get it out of the
way.” VRP (Sep. 12, 2024) at 352. However, Poole has a “bad back” and he instead “put it where
it was supposed to be” under a carport. VRP (Sep. 12, 2024) at 353. Poole was unaware if the
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furniture dolly hit the truck at any time. Poole then went inside the house, but he stepped outside
once the officers arrived.
B. TRIAL
The State charged Poole with one count of second degree assault, with a domestic violence
(DV) allegation, and one count of interfering with reporting domestic violence, also with a DV
allegation. The parties proceeded to a jury trial.
1. Witness Testimony
Poole, Vargas, Deputy Nault, and Sergeant Reynolds testified at trial.
a. Vargas testimony
Vargas was the first witness in the State’s case-in-chief. Vargas testified to her version of
the facts described above. However, at the time of trial, Vargas testified that when she was calling
and texting Poole, Poole never responded to her, and they never spoke on the phone. Additionally,
Vargas stated that she never elbowed Poole or struck him with her phone.
Vargas also testified that on the night of the incident, she spoke with officers within 30
minutes of the incident. During direct examination, the State inquired about the statement Vargas
gave the officers:
[STATE:] Do you recall how you were feeling at the time you gave the statement to law enforcement?
[VARGAS:] Yeah, scared. I was in pain. My throat was hurting.
[STATE:] Were you honest with the police?
[VARGAS:] Yes, ma’am.
4 No. 60152-4-II
VRP (Sep. 11, 2024) at 237. The State then asked Vargas about a second statement Vargas gave
during an interview with defense counsel before trial:
[STATE:] And then do you recall several months later giving another statement about what happened to [defense counsel] and her staff?
[VARGAS:] Yes, ma’am. I remember meeting with her.
[STATE:] And when did that occur, do you recall?
[VARGAS:] Maybe two months ago.
[STATE:] And were you honest at that time?
VRP (Sep. 11, 2024) at 238-39.
b. Poole Testimony
Poole testified that after he came home from the casino and got into bed, Vargas leaned
over Poole and began hitting him in the face with her cellphone. Poole moved Vargas away and
got on top of her on the bed. Poole told Vargas to drop her phone, pressing on her neck as he did
so. Vargas then dropped her phone. Poole picked up her phone and then pulled Vargas up from
the bed. Vargas requested her phone back, and Poole gave it to her. Vargas then fled the house.
On cross-examination, the State asked Poole about his conversation with Sergeant
Reynolds. Poole did not recall statements he made to Sergeant Reynolds. However, Poole recalled
demonstrating a cross-collar choke to Sergeant Reynolds to show how he had held Vargas.
On re-direct, defense counsel sought to clarify the discrepancies in Poole’s testimony.
Poole stated that he did not remember the full conversation he had had with Sergeant Reynolds
and had not informed Sergeant Reynolds that Vargas hit him in the face with her phone because
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he “was afraid that [the police] would arrest her.” VRP (Sep. 12, 2024) at 380. Defense counsel
then asked, “Have you been truthful in your testimony today?” VRP (Sep. 12, 2024) at 380. The
State objected, and the trial court sustained the objection.
c. Deputy Nault testimony
Deputy Nault testified to the events following law enforcement’s arrival at Poole and
Vargas’ residence. On direct examination, Deputy Nault initially referred to Vargas as “the
female” before the State began referring to Vargas by her name. VRP (Sep. 11, 2024) at 261.
The State asked several questions of Deputy Nault regarding his observations of the scene
and Vargas’ injuries. The State also introduced several photos—photos that Deputy Nault had
taken—into evidence as exhibits. The State asked Deputy Nault exhibit by exhibit what the photos
depicted:
[STATE:] Now to Exhibit 13, what’s depicted in this photograph?
[DEPUTY NAULT:] That is the—a photograph of the tire tread from the [furniture dolly] onto the side of the victim’s truck.
[STATE:] Do you know it’s the tire tread or did you just suspect it was?
[DEPUTY NAULT:] I suspect it’s the tire tread.
VRP (Sep. 11, 2024) at 272.
On cross-examination, defense counsel also asked Deputy Nault about his observations,
the timeline of events, and the specifics of his conversations with Vargas. Deputy Nault testified
that toward the end of his contact with Vargas, Deputy Nault retrieved a domestic violence
resources pamphlet to give to her.
[DEFENSE COUNSEL:] And then did—did you have a third brief conversation with Ms. Vargas?
6 No. 60152-4-II
[DEPUTY NAULT:] Yes. As typical, we discuss safety planning and that kind of thing with victims.
[DEFENSE COUNSEL:] Okay. So it would be accurate to say that you spoke with Ms. Vargas three separate times?
[DEPUTY NAULT:] Yes.
VRP (Sep. 11, 2024) at 280.
2. Verdict and Sentencing
The jury found Poole guilty of second degree assault and that Poole and Vargas were
intimate partners for the purposes of the DV allegation. However, the jury found Poole not guilty
of the charge of interfering with reporting of domestic violence.
The trial court sentenced Poole to a low-end standard range sentence of 3 months, with 12
months of community custody.
Poole appeals.
ANALYSIS
Poole raises several challenges on appeal. Specifically, Poole alleges improper witness
opinion testimony, prosecutorial misconduct for “preemptive bolstering” of a witness’s credibility,
and ineffective assistance of counsel for defense counsel’s failure to object to the two
aforementioned items. Br. of Appellant at 2. Finally, Poole alleges cumulative error deprived him
of a fair trial. Poole’s challenges fail.
7 No. 60152-4-II
A. IMPROPER WITNESS TESTIMONY1
1. Legal Principles
“The right to have factual questions decided by the jury is crucial to the right to a jury
trial.” State v. Bass, 18 Wn. App. 2d 760, 796, 491 P.3d 988 (2021), review denied, 198 Wn.2d
1034 (2022); U.S. CONST. amend. VI; WASH. CONST. art. I, §§ 21, 22. Thus, witnesses may not
testify to an opinion regarding a defendant’s guilt, whether directly or by inference. Bass, 18 Wn.
App. 2d at 796. Further, a witness’s expression of personal belief as to the intent of the accused
or veracity of other witnesses is also inappropriate. State v. Montgomery, 163 Wn.2d 577, 591,
183 P.3d 267 (2008). “Testimony deemed to be an opinion as to a defendant’s guilt must relate to
the defendant.” State v. Wilber, 55 Wn. App. 294, 298, 777 P.2d 36 (1989).
Generally, appellate courts will not consider issues raised for the first time on appeal. State
v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007). A party may raise an error for the first
time on appeal if it is a manifest error affecting a constitutional right. RAP 2.5(a)(3). “The
defendant must identify a constitutional error and show how the alleged error actually affected the
defendant’s rights at trial.” Kirkman, 159 Wn.2d at 926-27. This means that the error must have
“caused actual prejudice or practical and identifiable consequences” at trial. Montgomery, 163
Wn.2d at 595.
1 In Poole’s assignments of error, his challenge regarding the alleged improper witness opinion testimony is couched within the prosecutorial misconduct assignment of error. However, in his argument section regarding the improper witness opinion testimony, Poole does not argue that the alleged improper witness opinion testimony was prosecutorial misconduct. Thus, this opinion does not address the issue of the alleged improper witness opinion testimony as a prosecutorial misconduct claim.
8 No. 60152-4-II
Witness opinion testimony is not automatically reviewable as a manifest constitutional
error. Kirkman, 159 Wn.2d at 936. To constitute a manifest error, there must be “a nearly explicit
statement by the witness that the witness believed the accusing victim.” Id. Further, in assessing
whether opinion testimony prejudiced a defendant, courts will also consider whether the jury was
properly instructed. Montgomery, 163 Wn.2d at 595.
2. Poole Failed to Preserve Issue on Appeal
Poole argues that Deputy Nault improperly identified Vargas as a “‘victim’” twice in his
testimony and that doing so was “unfairly prejudicial” because an implication arises that Deputy
Nault believed Poole had committed a crime. Br. of Appellant at 8, 10. Although Poole did not
object to Deputy Nault’s use of the word “victim” at trial, he now urges this court to review his
claim as a manifest constitutional error.
The State, conversely, urges this court to decline review of this issue because Poole failed
to preserve the issue for review and fails to demonstrate a manifest constitutional error. The State
also asserts that even if we review the merits of Poole’s claim, there was no improper opinion
testimony. We agree with the State that Poole has failed to demonstrate a manifest error affecting
a constitutional right and decline to review Poole’s argument raised for the first time on appeal.
Here, the record shows that Deputy Nault twice used the word, “victim,” during his
testimony. The first use of “victim” was in reference to a photo exhibit—Deputy Nault stated:
“That is . . . a photograph of the tire tread from the [furniture dolly] onto the side of the victim’s
truck.” VRP (Sep. 11, 2024) at 272. Deputy Nault’s second use of “victim” was during cross-
examination, when defense counsel asked Deputy Nault about a third conversation Deputy Nault
had with Vargas, and Deputy Nault replied, “As typical, we discuss safety planning and that kind
9 No. 60152-4-II
of thing with victims.” VRP (Sep. 11, 2024) at 280. Defense counsel did not object in either
circumstance. At all other times during Deputy Nault’s testimony, Deputy Nault referred to
Vargas by her name or as “the female.” VRP (Sep. 11, 2024) at 261.
Poole argues that Deputy Nault’s use of “victim” indicated that Deputy Nault “had
formulated an opinion of [guilt by labelling Vargas as] the victim and [Poole as] the aggressor,”
thus making it a manifest constitutional error. Br. of Appellant at 14. In the first instance, it is
evident Deputy Nault meant Vargas when he said “victim.” VRP (Sep. 11, 2024) at 272. However,
his use of “victim” was to identify the owner of the truck in a photo exhibit and was not used in an
expression of personal belief or guilt. In the second instance, Deputy Nault used the term “victims”
more generally and in reference to standard law enforcement protocol when responding to
domestic violence incidents. VRP (Sep. 11, 2024) at 280. Again, Deputy Nault was not expressing
an opinion as to who he believed or whether he thought Poole had committed a crime. Deputy
Nault was aware that Vargas was the 911 caller and that he was responding to a domestic violence
situation. When viewed in context, the record shows that Deputy Nault more likely used the term
“victim” to identify the complaining witness or the 911 caller. Thus, there was no explicit or
nearly explicit statement from Deputy Nault that he believed Vargas over Poole. Kirkman, 159
Wn.2d at 936.
Furthermore, the record shows the jury was properly instructed. Montgomery, 163 Wn.2d
at 595. Instruction No. 1 instructed jurors that they were “the sole judges of the credibility of each
witness” and provided a list of factors for jurors to contemplate when considering a witness’s
testimony, such as a witness’s personal interest or bias or prejudice. CP at 90. Jurors are presumed
to follow the court’s instructions absent evidence to the contrary. Montgomery, 163 Wn.2d at 596.
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Indeed, the jury acquitted Poole of his charge of interfering with reporting domestic violence.
Thus, even if there was improper opinion testimony, Poole fails to establish a manifest error.
Kirkman, 159 Wn.2d at 936. Because he fails to establish a manifest error, Poole has failed to
preserve his challenge for review.
B. PROSECUTORIAL MISCONDUCT
Defendants who allege prosecutorial misconduct must establish the prosecutor’s improper
conduct and resulting prejudice. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). It
is misconduct for a prosecutor to personally vouch for a witness’s credibility. State v. Molina, 16
Wn. App. 2d 908, 919, 485 P.3d 963, review denied, 198 Wn.2d 1008 (2021). “‘Vouching may
occur in two ways: the prosecution may place the prestige of the government behind the witness
or may indicate that information not presented to the jury supports the witness’s testimony.’” Id.
(quoting State v. Coleman, 155 Wn. App. 951, 957, 231 P.3d 212 (2010), review denied, 170
Wn.2d 1016 (2011)).
Additionally, the State generally may not bolster a witness’s credibility prior to any
attempted impeachment. State v. Hakimi, 124 Wn. App. 15, 24, 98 P.3d 809 (2004), review denied,
154 Wn.2d 1004 (2005). Bolstering occurs when evidence or corroborating testimony is presented
to support the credibility of the witness. State v. Bourgeois, 133 Wn.2d 389, 401, 945 P.2d 1120
(1997). However, if the witness’s credibility is “‘an inevitable, central issue’” during trial, then
the corroborating testimony or evidence may be offered. Hakimi, 124 Wn. App. at 24 (quoting
State v. Petrich, 101 Wn.2d 566, 575, 683 P.2d 173 (1984), abrogated on other grounds by State
v. Kitchen, 110 Wn.2d 403, 406, 756 P.2d 105 (1988)). Any alleged improper statements are
11 No. 60152-4-II
viewed “‘within the context of the prosecutor’s entire argument, the issues in the case, the evidence
discussed in the argument, and the jury instructions.’” Molina, 16 Wn. App. 2d at 918 (quoting
Dhaliwal, 150 Wn.2d at 578).
Once a defendant establishes improper conduct, courts must determine if the defendant was
prejudiced by the improper conduct. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
“‘Prejudice’ means that there is a substantial likelihood that the misconduct affected the jury’s
verdict.” State v. Zwald, 32 Wn. App. 2d 62, 74, 555 P.3d 467 (2024), review denied, 4 Wn.3d
1005 (2025). If “a defendant does not object to the alleged misconduct below, he waives any error
on appeal unless he can show that the conduct was ‘so flagrant and ill intentioned that it causes an
enduring and resulting prejudice that could not have been neutralized by an admonition to the
jury.’” Id. (internal quotation marks omitted) (quoting State v. Thorgerson, 172 Wn.2d 438, 443,
258 P.3d 43 (2011)).
2. No Improper Conduct
Poole argues that the State’s “repeated question” to Vargas on direct examination as to
whether she was honest “improperly bolstered her credibility.” Br. of Appellant at 15.
Specifically, Poole asserts that Vargas, as the State’s first witness, had not been impeached and
nothing in evidence at that time had “opened the door” for the State to “preemptively rehabilitate”
Vargas as a witness. Br. of Appellant at 15. We disagree.
Here, Poole alleges two instances of misconduct. The first instance was the State’s
question regarding whether Vargas was honest when she spoke with law enforcement after they
responded to her 911 call:
12 No. 60152-4-II
[STATE:] Do you recall how you were feeling at the time you gave the statement to law enforcement?
[VARGAS:] Yeah, scared. I was in pain. My throat was hurting.
VRP (Sep. 11, 2024) at 237. The second instance, a few moments later during Vargas’ direct
examination, occurred as follows:
[STATE:] And then do you recall several months later giving another statement about what happened to [defense counsel] and her staff?
The record shows that Poole did not object to the State’s line of questioning. Thus, he
waives any error on appeal absent a showing of misconduct so flagrant and ill-intentioned that it
causes incurable prejudice. Zwald, 32 Wn. App. 2d at 74. Poole argues that the State’s conduct
was flagrant and ill-intentioned because when defense counsel asked a purportedly similar
question about Poole’s honesty, the State immediately objected, and the trial court sustained the
objection.2
2 We note that Poole does not challenge on appeal the trial court’s ruling sustaining the State’s objection.
13 No. 60152-4-II
A review of the record shows that defense counsel’s question to Poole, to which the State
objected, was different than the prosecutor’s questions to Vargas that Poole challenges on appeal.
In Poole’s case, during redirect examination, defense counsel asked clarifying questions of Poole
in terms of what he recalled telling Sergeant Reynolds and comparing it with the testimony he
provided in trial. Defense counsel then asked Poole, “Have you been truthful in your testimony
today?” VRP (Sep. 12, 2024) at 380 (emphasis added). This question is distinctly different than
the prosecutor’s questions to Vargas regarding Vargas’ past interviews, which had not been under
oath and had occurred in very different circumstances. For instance, Vargas testified that she was
feeling scared when she spoke with law enforcement. It is not unreasonable for an individual
experiencing fear to not be entirely forthcoming when speaking with law enforcement, especially
in a domestic violence context. For the State to ask whether Vargas had been honest at the time
she spoke with law enforcement is reasonable in light of the issues in the case and the evidence
discussed above. Molina, 16 Wn. App. 2d at 918. The same analysis applies to the second instance
when the State asked about Vargas’ honesty. Nothing in the State’s line of questioning suggests
flagrant or ill-intentioned conduct. Thus, Poole has waived any error on appeal. Zwald, 32 Wn.
App. 2d at 74.
Even if Poole had not waived the error on appeal, the record does not support Poole’s
contention. The State simply asked Vargas whether she had been honest in two prior interviews,
which, for the reason discussed above, was not inappropriate. Molina, 16 Wn. App. 2d at 918. In
each case, immediately after the question, the State moved on to other topics. The prosecutor did
not express a personal opinion, vouch for Vargas’ credibility, or allude to facts not in evidence.
Id. at 919.
14 No. 60152-4-II
Furthermore, Vargas’ credibility was an inevitable, central issue during trial. Hakimi, 124
Wn. App. at 24. Vargas and Poole were the only two witnesses to the incident, and the jury’s
determination of facts hinged on who they found more credible. On cross-examination, defense
counsel called into question the strength of Vargas’ memory of the incident. Vargas admitted to
not remembering several things, or in some cases offered testimony contradictory to that of other
State witnesses. The record also shows that the jury was properly instructed to be “the sole judges
of the credibility of each witness.” CP at 90. Again, “[w]e presume the jurors followed the court’s
instructions.” Molina, 16 Wn. App. 2d at 919. The jury had the benefit of hearing competing
versions of events from various witnesses, and moreover, whether Vargas was honest in prior
interviews would have little to no bearing on whether she was honest during trial.
Therefore, viewing the context of the prosecutor’s questioning, the issues in the case, the
evidence discussed in the argument, and the jury instructions, the record shows that the
prosecutor’s questions to Vargas regarding her honesty in prior interviews were not improper. Id.
at 918.3 Accordingly, Poole’s claim of prosecutorial misconduct fails.
C. INEFFECTIVE ASSISTANCE OF COUNSEL
Criminal defendants are guaranteed the right to effective assistance of counsel. U.S.
CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Vazquez, 198 Wn.2d 239, 247, 494 P.3d
424 (2021). We presume counsel is effective. Vazquez, 198 Wn.2d at 247. We review ineffective
assistance of counsel claims de novo. Id. at 249.
3 Because the questions were not improper, we do not address prejudice. See Emery, 174 Wn.2d at 760.
15 No. 60152-4-II
“To demonstrate ineffective assistance of counsel, a defendant must make two showings:
(1) defense counsel’s representation was deficient, . . . and (2) defense counsel’s deficient
representation prejudiced the defendant.” State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d
1251 (1995). “If one prong of the test fails, we need not address the remaining prong.” State v.
Crow, 8 Wn. App. 2d 480, 507, 438 P.3d 541, review denied, 193 Wn.2d 1038 (2019).
Counsel’s performance is deficient if it falls below “‘an objective standard of
reasonableness based on consideration of all the circumstances.’” Vazquez, 198 Wn.2d at 247-48
(quoting McFarland, 127 Wn.2d at 334-35). “‘[T]he defendant must show in the record the
absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel.’”
Id. at 248 (quoting McFarland, 127 Wn.2d at 336). Trial tactics include when and how an attorney
decides to object during trial testimony. Id. A counsel’s decision to forego an objection may be a
legitimate trial tactic if counsel wishes to avoid highlighting certain evidence. Crow, 8 Wn. App.
2d at 508.
Counsel’s deficient performance prejudices a defendant if “there is a reasonable probability
that, except for counsel’s unprofessional errors, the result of the proceeding would have been
different.” McFarland, 127 Wn.2d at 335. A reasonable probability is “a probability sufficient to
undermine confidence in the outcome.” State v. Estes, 188 Wn.2d 450, 458, 395 P.3d 1045 (2017).
To prevail on a claim of ineffective assistance based on counsel’s failure to object, the
defendant must show that an objection would likely have succeeded. Vazquez, 198 Wn.2d at 248.
“Only in egregious circumstances, on testimony central to the State’s case, will the failure to object
constitute incompetence of counsel justifying reversal.” Crow, 8 Wn. App. 2d at 508.
16 No. 60152-4-II
2. Failure to Object to Identification of Vargas as a Victim
Poole argues he received ineffective assistance of counsel because defense counsel did not
object to Deputy Nault’s reference to Vargas as a “victim.” Br. of Appellant at 19. We disagree.
Poole asserts “there was no strategic reason not to object when Deputy Nault identified
Ms. Vargas as the victim.” Br. of Appellant at 20. Here, as discussed above, Deputy Nault’s first
use of “victim” was in his identification of Vargas’ truck in a photo exhibit. The State asked
Deputy Nault to identify a photograph, one which Vargas herself was not pictured in. In the second
instance, Deputy Nault referred to “victims” generally as he described standard law enforcement
protocol when responding to incidents of domestic violence. However, the record shows that
Deputy Nault referred to Vargas by her name or as “the female” throughout his testimony. VRP
(Sep. 11, 2024) at 261. While it could be inferred that Deputy Nault included Vargas under the
category of “victims,” the record also shows that Deputy Nault was aware that Vargas was the 911
caller and that he was responding to a domestic violence incident. Accordingly, in context, as
discussed above, Deputy Nault more likely used the term “victim” to mean the complaining
witness or the 911 caller. Overall, Deputy Nault’s use of “victim” and “victims” were fleeting.
Further, the State never once referred to Vargas as a victim. Thus, defense counsel could
reasonably have chosen not to object so as not to draw attention to the reference. Crow, 8 Wn.
App. 2d at 508.
Because defense counsel’s lack of objection to Deputy Nault’s use of “victim” could have
been a legitimate trial tactic, we hold defense counsel did not perform deficiently.4 Accordingly,
4 Because Poole fails to establish deficient performance, we do not address prejudice arising from defense counsel’s failure to object to Deputy Nault’s use of the word, “victim.” Id. at 507.
17 No. 60152-4-II
Poole’s ineffective assistance of counsel claim based on the failure to object to the term “victim”
fails.
3. Failure to Object to State’s Inquiry Regarding Vargas’ Honesty
Poole argues “there was also no strategic reason not to object to the State’s inquiry with
Ms. Vargas whether she was being honest.” Br. of Appellant at 20-21. Poole contends that
because the trial court sustained the State’s objection when defense counsel asked Poole about
Poole’s honesty, the trial court would have sustained an objection from defense counsel had
defense counsel raised one when the State asked Vargas about her honesty. Poole asserts that
“[p]ermitting the State to bolster a witness whose credibility had not been attacked was not a
tactical decision and appears to have been an oversight.” Br. of Appellant at 21. We disagree.
Poole’s argument ignores the fact that the State’s questions to Vargas regarding Vargas’
honesty in two specific past interviews were fundamentally different from defense counsel’s
question to Poole regarding his honesty during trial. Further, Poole does not identify on what
grounds an objection from defense counsel would have been sustained. Indeed, for the reasons
discussed in the preceding section, the State did not improperly bolster Vargas’ credibility. Thus,
it is not clear from the record that an objection would have succeeded. Vazquez, 198 Wn.2d at
248. Furthermore, Poole makes no argument as to how defense counsel’s failure to object to the
State’s line of questioning prejudiced him.
Even assuming Vargas’ testimony about her honesty during two past interviews was
inadmissible and that defense counsel performed deficiently for failing to object, reversal is
required only if the outcome of the proceedings would have been different without the inadmissible
evidence. Id. at 248-49. Here, based on the evidence presented at trial, a reasonable jury could
18 No. 60152-4-II
still have found Poole guilty for second degree assault beyond a reasonable doubt. For instance,
the jury saw photographic evidence of Vargas’ injuries. Poole himself testified to “pressing on
[Vargas’] neck.” VRP (Sep. 12, 2024) at 350. Sergeant Reynolds testified to, and the jury was
shown body camera footage of, Poole telling Sergeant Reynolds that he held Vargas in a cross-
collar choke, which was an army combat maneuver. Accordingly, even if counsel performed
deficiently for failing to object to the State’s questions about Vargas’ honesty, Poole fails to
establish prejudice. Because Poole fails to establish prejudice, his claim of ineffective assistance
D. CUMULATIVE ERROR
Poole argues that he should receive a new trial because “the combination of errors deprived
him of a fair trial.” Br. of Appellant at 21. We disagree.
“‘The cumulative error doctrine applies where a combination of trial errors denies the
accused of a fair trial, even where any one of the errors, taken individually, would be harmless.’”
State v. Azevedo, 31 Wn. App. 2d 70, 85, 547 P.3d 287 (2024) (quoting In re Pers. Restraint of
Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014), abrogated on other grounds by State v. Gregory,
192 Wn.2d 1, 427 P.3d 621 (2018), and by State v. Magaña Arévalo, 5 Wn.3d 781, 582 P.3d 330
(2026)). Here, for the reasons discussed in the analyses above, there is no combination of errors
to merit application of the cumulative error doctrine. Id. Therefore, there is no cumulative effect
of errors that deprived Poole of a fair trial.
19 No. 60152-4-II
CONCLUSION
We affirm Poole’s conviction.
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.
Lee, J. We concur:
Veljacic, C.J.
Che, J.