State of Washington v. Sloan Patrick Stanley ( 2021 )


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  •                                                                FILED
    MARCH 2, 2021
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    STATE OF WASHINGTON,                          )       No. 36432-1-III
    )       (consolidated with
    Respondent,              )       No. 37546-3-III)
    )
    v.                              )
    )
    SLOAN PATRICK STANLEY,                        )
    )
    Appellant.              )       UNPUBLISHED OPINION
    In the Matter of the Personal Restraint of:   )
    )
    )
    SLOAN PATRICK STANLEY,                        )
    )
    Petitioner.              )
    LAWRENCE-BERREY, J. — Sloan Stanley appeals his convictions of five counts of
    felony harassment and one count of intimidating a judge. He also appeals his exceptional
    sentence of 402 months, which was more than five times the mid-point of his standard
    range sentence.
    Stanley raises several arguments on direct review, by way of a statement of
    additional grounds for review and by way of a personal restraint petition. Many of his
    arguments are made moot by our decision to reverse and remand for a new trial.
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    We conclude the trial court violated Stanley’s constitutional right to present a
    defense by excluding highly relevant evidence despite the evidence having little or no
    ability to disrupt the fairness of the fact-finding process. Because sufficient evidence
    supported all of Stanley’s convictions, we conclude that remand, not dismissal, is the
    appropriate remedy.
    We exercise our discretion to address an issue raised on appeal that will have a
    significant impact on retrial. We conclude the trial court did not abuse its discretion by
    allowing four women to testify thoroughly about the reasonableness of their fear,
    including allowing them to read to the jury old e-mails that Stanley sent them.
    Finally, we dismiss his personal restraint petition.
    BACKGROUND
    In 2015, a jury found Stanley guilty of multiple counts of felony cyberstalking
    four women. King County Judge Jeffrey Ramsdell imposed a drug offender sentencing
    alternative (DOSA) sentence of 25 months and released Stanley on community
    supervision.1 His conditions of supervision included seeking treatment, not using social
    media, and not contacting or attempting to contact any of the victims directly or
    1
    At the time of sentencing, Stanley had already served 12.5 months.
    2
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    indirectly. Within a few months, Stanley violated his DOSA by using Facebook to
    contact a bartender who worked with one of the victims.
    While being transported to serve his sentence, Stanley met another inmate who
    recently violated his DOSA, Randy Burleson. Burleson and Stanley were celled together
    for 12 days. During that time, Stanley and Burleson talked about why their DOSAs were
    revoked. According to Burleson’s later statements to investigators, Stanley was very
    angry with the criminal justice system and repeatedly threatened to kill several people
    involved in his 2015 trial.
    About one year later, Detective Rande Christiansen of the Seattle Police
    Department learned that Burleson claimed Stanley had repeatedly threatened to kill
    several people involved in his 2015 trial. Detective Christiansen, who had been involved
    in the 2015 case, interviewed Burleson. Based on this interview, the State placed a
    confidential informant, Billy Temple, in Stanley’s cell to see if he would continue making
    threats. Soon after, the State obtained an order allowing it to audio record the
    conversations in Stanley’s cell.
    Detective Christiansen, in the probable cause statement leading to the charges in
    this case, referred to several discussions he and other investigators had with Temple. In
    that statement, Temple said Stanley talked about his plans to “‘get’” or “‘handle’”
    3
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    several persons involved in his 2015 case, talked about having a gun somewhere in
    Mukilteo where he would soon be released, and said something to the effect of, “‘Those
    bitches should fear me,’” and “‘I can’t let [t]his go.’” Clerk’s Papers (CP) at 2-3.
    PROCEDURE
    The State charged Stanley with seven counts of felony harassment and one count
    of intimidating a judge. The State alleged the “egregious lack of remorse” aggravator
    with respect to each of the four victims not associated with the criminal justice system,
    and alleged the “retaliation of a public official’s performance” of official duty aggravator
    with respect to each of the public official victims.
    Stanley promptly requested the audio surveillance from when he and Temple
    shared a cell, believing it would exonerate him. Stanley initially received only 30 hours
    of the recordings. He advised the court they contained nothing incriminating, proved his
    innocence, and said if the remaining 144 hours of recordings contained incriminating
    evidence, he was sure the State would have released them.
    The State offered to resolve Stanley’s case through a stipulated order of
    continuance, meaning eventual dismissal of charges if Stanley complied with agreed
    conditions. Stanley rejected the offer, electing for a trial to prove his innocence. The
    charges were brought in King County, but Stanley moved to transfer venue to Walla
    4
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    Walla County and to recuse the King County Prosecutor’s Office (KCPO). Whether by
    court order or agreement, the case was transferred to Walla Walla County.
    Walla Walla County appointed Gary Ernsdorff, a King County deputy prosecutor,
    to prosecute Stanley. Stanley again moved to recuse the KCPO from the case. The court
    denied the motion.
    In July 2018, the court set a trial date of September 5-13, 2018. On August 22, the
    State disclosed its witness list and omitted Temple, its informant. The next day, Stanley
    disclosed his witness list and listed Temple. When the State asked what Temple would be
    called to testify about, Stanley directed the State to hour 22 of the surveillance recordings.
    On August 24, the State informed Stanley it would seek to admit Stanley’s e-mails
    to the four female victims from his 2015 trial. In response, Stanley moved to stipulate to
    the element of reasonable fear with respect to those four women, arguing that the old e-
    mails should be barred under ER 404(b). The State submitted a summary of the facts
    relevant to each of the victims’ reasonable fear. It asked that each victim be able to
    testify to her history with Stanley, and explain the prior threats—including some of the
    threatening messages—that led to his 2015 convictions.
    5
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    The court denied Stanley’s motion, finding the evidence admissible under
    ER 404(b) to prove the victims were reasonably afraid of Stanley’s current charged
    threats. Its findings and conclusions read, in part:
    The Court finds that this evidence of prior acts is relevant for the
    specific purpose of proving the reasonable fear of each of the charged
    victims.
    The Court finds that the information is relevant to prove a necessary
    element of the crimes for which the defendant has been charged.
    The Court conducted an ER 403 balancing test and finds that the
    probative value of the evidence is not substantially outweighed by its
    prejudicial effect. . . . [I]n balancing the two, the Court finds that the
    evidence is not unfairly prejudicial. In weighing the two, the Court found
    that it was more probative than prejudicial. The Court will also issue any
    requested limiting instruction to further mitigate any prejudicial effect.
    CP at 96.
    On September 5, the State filed an amended information. The new information
    dismissed two charges of felony harassment and added a new felony harassment charge.
    It included six counts of felony harassment—the four earlier asserted involving the
    female victims in the 2015 trial, the one earlier asserted involving the King County
    deputy prosecutor, and a new charge involving Judge Ramsdell. The seventh count
    reiterated the prior intimidating a judge charge involving Judge Ramsdell.
    6
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    TRIAL
    Randy Burleson’s testimony
    Stanley told Burleson his DOSA was revoked when he tried to contact one of the
    witnesses from his trial. Stanley was angry about the witnesses testifying against him.
    He would grow agitated when talking about “how he wanted to kill these three girls, a
    judge and a prosecutor.” 2 Report of Proceedings (RP) (Sept. 10, 2018) at 215.
    The State asked Burleson whether he had heard other inmates say they would like
    to kill people. Burleson answered yes. Burleson could not always tell whether inmates
    actually intended to do the things they said, but with Stanley he testified: “I feel without a
    doubt that he meant every word he said.” 2 RP (Sept. 10, 2018) at 216. When asked
    what Stanley said about the women, the judge, and the prosecutor, Burleson answered,
    “He wanted to fucking kill them. . . . That’s his language.” 2 RP (Sept. 10, 2018) at 217.
    He said this multiple times throughout multiple days. Burleson described Stanley’s
    behavior as “craziness.” 2 RP (Sept. 10, 2018) at 218.
    When the State clarified whether Stanley talked about the women who testified
    against him at his trial, Burleson said, “Yeah. There were three witnesses. And one—
    one of the women witnesses is one that they—why they revoked his DOSA. . . . He
    wanted to kill them.” 2 RP (Sept. 10, 2018) at 218.
    7
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    The State then asked Burleson about the prosecutor from Stanley’s 2015 case:
    [THE STATE:] So—And so what was the prosecutor doing with
    Mr. Stanley that made him mad at the prosecutor?
    [BURLESON:] I think Stanley was quoting some—some law and
    they were kind of just, I think, overlooking it in his eyes because he wasn’t
    a real attorney, I’m thinking.
    [THE STATE:] And so did that make Mr. Stanley mad, what—
    [BURLESON:] Yeah.
    [THE STATE:] —what you could observe?
    [BURLESON:] That made him very mad, yes.
    [THE STATE:] What did he say he wanted to do to the prosecutor?
    [BURLESON:] He wanted to kill him.
    [THE STATE:] Did he describe how?
    [BURLESON:] Well, there was a couple of times where he made
    a—a gesture on what he’d just like to kill him. . . .
    ....
    [BURLESON:] A shooting stance, yes.
    2 RP (Sept. 10, 2018) at 223. Stanley talked about a specific gun he owned that his
    grandfather made. Burleson said Stanley made at least 20 threats in the 12 days they were
    in the same cell. He did not mind being housed with Stanley at first, but he became more
    and more uncomfortable as Stanley’s anger intensified. He described how Stanley
    seemed unstable and would go from 0 to 100 and back down. When asked whether he
    had ever felt like that before, Burleson said he had not. Burleson described how Stanley
    seemed to feel it was his “destiny” to kill the witnesses, judge, and prosecutor and that he
    felt “justified” and would have “his final satisfaction” in doing so. 2 RP (Sept. 10, 2018)
    at 230.
    8
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    On cross-examination, the defense pressed Burleson on whether he knew anything
    more specific about the women Stanley allegedly threatened. Burleson stated he did not
    know much about Stanley’s prior case. Burleson admitted that he committed numerous
    crimes in his life, some of which involved dishonesty. He said people who commit
    crimes are deceitful in some way, but that he was there testifying “because of what
    [Stanley] said.” 2 RP (Sept. 10, 2018) at 237-38.
    Prosecutor Wesley Brenner’s testimony
    The State called Wesley Brenner, the King County deputy prosecuting attorney
    who tried Stanley’s 2015 case. Brenner testified to his experience in the prosecutor’s
    office working with violent crimes, juvenile matters, domestic violence, and stalking.
    Brenner discussed how he was assigned to the case, and that he was “probably the first
    attorney to realize the scope of what had been done.” 2 RP (Sept. 10, 2018) at
    299-300. Brenner knew Stanley from the trial and had spoken with him on the phone
    after Stanley decided to represent himself. When Brenner learned of the threats he said,
    “I was shocked and I was afraid.” 2 RP (Sept. 10, 2018) at 302. Brenner had been
    threatened by defendants before, but Stanley’s threats were different in his mind because
    they sounded more like a plan. He explained:
    9
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    But I think the biggest reason was just because of the previous
    interactions I had with Mr. Stanley. The rage that I had seen him show
    toward the victims, towards the judge, towards myself. The obsessive
    behavior that I had seen him exhibit over four years of constant emails and
    Facebook messages to the women involved.
    And, yeah, just the ideation of violence and suicidal behavior that he
    described in his—in his—in those messages.
    2 RP (Sept. 10, 2018) at 304. Brenner was concerned that Stanley had taken steps to find
    out the witnesses had moved, when their purpose for doing so was “to have some distance
    from this.” 2 RP (Sept. 10, 2018) at 306. To Brenner, the threat “sounded believable
    because it was similar things that [Stanley] had said before in the past.” 2 RP (Sept. 10,
    2018) at 306. Defense counsel objected on grounds of relevancy, which the court
    overruled. Brenner also knew Stanley was originally from Idaho, he was concerned about
    losing his right to possess a firearm during his last trial, and he may have access to
    firearms in Idaho. Brenner noted that Stanley’s behavior leading up to his trial “had been
    getting progressively worse” and “it sounded like there was a good chance he was going
    to take these steps to come after me and the other victims.” 2 RP (Sept. 10, 2018) at 308.
    Brenner described his relationship with Stanley as “very professional” until they
    disagreed about something. 2 RP (Sept. 10, 2018) at 309. Then “it would be like a light
    switch. . . . [J]ust an outburst of temper. He’d start yelling at me. Often he’d . . . scream
    at me and hang up the phone. . . . He called the women liars and a lot of worse things
    10
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    than that as well.” 2 RP (Sept. 10, 2018) at 309. Brenner then gave examples of the
    language Stanley used.
    Brenner explained that after Stanley’s sentencing he monitored Stanley because he
    was “concerned about what he might do when—when he was released even before I
    heard the threats.” 2 RP (Sept. 10, 2018) at 315. Brenner had not done that before. After
    he learned of Stanley’s revocation and subsequent threats from jail, he shopped for a
    home security system and left the criminal section of the prosecutor’s office.
    On cross-examination, Brenner acknowledged that Stanley had never threatened
    him nor had Stanley directly contacted him since the 2015 trial. He only learned of
    Stanley’s threats from Detective Christiansen.
    2015 cyberstalking victims’ testimonies
    Alyson Gray, Miriam Much, Elizabeth Bell,2 and Leah Mesford, the victims of
    Stanley’s 2015 cyberstalking convictions, testified at trial. Before they testified, Stanley
    again offered to stipulate to their reasonable fear. He argued the testimony would amount
    to a retrial of his prior convictions and would prejudicially influence the jury. The State
    argued the testimony about Stanley’s prior conduct was relevant to the “reasonable fear”
    2
    Ms. Bell married and changed her surname following the 2015 trial. In that
    proceeding she was Elizabeth Williams.
    11
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    element in his felony harassment charges. The court denied Stanley’s offer, allowing the
    victims’ testimony and admitting the messages into evidence that formed the basis of the
    2015 trial.
    The women testified they met Stanley at a local bar around 2010 where one of
    them worked as a bartender. They were not friends with Stanley, had not exchanged
    contact information, and had never made plans to meet him at the bar or elsewhere. The
    State asked them to describe, in detail, what they remembered about the messages that
    resulted in Stanley’s cyberstalking convictions. Ms. Gray remembered, “He . . . wrote
    things like painting with my blood on the walls and, you know, hunting us down . . . .”
    2 RP (Sept. 10, 2018) at 253. She said, “I just did my best to wipe myself off of the
    Internet so he hopefully couldn’t find me” because “I felt like my life was in danger.”
    2 RP (Sept. 10, 2018) at 253-54. She described some of the e-mails as “rambling” or
    “professing, like, love and romantic and sexual interests” but “most of them were
    threatening.” 2 RP (Sept. 10, 2018) at 263. Ms. Much said, “I will never forget him
    saying that the blood will spill from the bitches who have wronged him,” and that “he’s
    never going to give it up.” 3 RP (Sept. 11, 2018) at 426-27. Ms. Bell remembered: “All
    of the messages about, I hope you die or I hope someone shoots you are haunting.” 3 RP
    (Sept. 12, 2018) at 498. Ms. Mesford said the messages were “too scary to read and let
    12
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    sink in” and that she tried to “disassociate with it because it’s so severe it’s hard for me to
    process the content.” 3 RP (Sept. 12, 2018) at 530.
    The prosecutor asked each victim to read aloud several of the most violent
    messages they received from Stanley. Ms. Gray read from seven separate messages
    where Stanley said things like, “I will fucking kill you, you worthless, fucking whore.”
    2 RP (Sept. 10, 2018) at 265. Each of the other victims read aloud to the jury several
    similarly violent, threatening, and offensive messages. Copies of these messages were
    also admitted into evidence.
    The State asked the victims about the fear Stanley instilled in them, including what
    steps they each took to protect themselves. It also asked how they reacted when they
    heard about Stanley’s alleged threats from prison. Ms. Gray testified that her fear had
    never decreased: “In a way I’m even more nervous because obviously his fixation and his
    obsession has continued.” 2 RP (Sept. 10, 2018) at 268. She was not surprised Stanley
    had been making threats from prison, because “[t]hose were the messages that he
    engrained in my memory over years and years and years and that was the same language I
    had come to expect from him.” 2 RP (Sept. 10, 2018) at 270. The following exchange
    took place:
    13
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    [THE STATE:] Is there anything that struck you about the
    language?
    [MS. GRAY:] The fact that he said he had hidden a gun and that he
    was planning to find us and kill us.
    I mean, it was along the same lines of what he had sent me before
    and—Yes, I was familiar with the kind of language he had used in the past
    and it sounded along those same lines.
    [THE STATE:] From your experience it sounded like the words Mr.
    Stanley would use?
    [MS. GRAY:] Yes.
    [THE STATE:] Do you believe those words?
    [MS. GRAY:] I—I mean, yeah. I’m—I’m—Sadly, that is the kind
    of language that I expect from him. Those are the same kinds of threats he
    would use towards me repeatedly.
    2 RP (Sept. 10, 2018) at 272. The State asked Ms. Bell whether the recent threats were
    “similar to things he said” in the past, and Ms. Bell answered, “Very, but years later.”
    3 RP (Sept. 12, 2018) at 509. Ms. Mesford said she was afraid when she heard about the
    threats “[b]ecause like I said, I knew in my heart that he wasn’t going to let this go and
    that just proved to me that my thoughts were right.” 3 RP (Sept. 12, 2018) at 525. The
    defense objected to the prior case being brought up, which the court overruled. Ms.
    Mesford continued: “I was a little bit afraid to be back in my home state . . . [b]ecause
    he’s unpredictable and he has not made any moves to let go of harassing and threatening
    me and my life.” 3 RP (Sept. 12, 2018) at 528.
    On cross-examination, the defense asked the victims to read other messages from
    Stanley, where he expressed sadness, suicidal thoughts, and asked for help or clarity.
    14
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    Ms. Gray read one message where Stanley asked: “How much pain do you want to cause
    me?” and “Why can’t you do something?” 2 RP (Sept. 10, 2018) at 281-82. Ms. Bell
    acknowledged that his talk of self-harm “kind of pulled on my heart strings of feeling bad
    for him, while simultaneously being scared of him that he seems really mentally
    unstable.” 3 RP (Sept. 12, 2018) at 510. None of the women had been contacted by
    Stanley at any time following the 2015 trial. They learned of the prison threats from
    Detective Christiansen.
    Detective Christiansen’s testimony
    Detective Christiansen described the events leading up to the current charges.
    After Stanley was back in jail, Christiansen received “[i]nformation that was passed along
    from various agencies to myself that Mr. Stanley was making threats again towards the
    women.” 2 RP (Sept. 10, 2018) at 339. This information came from Burleson, who
    Christiansen then interviewed. Following the interview, the State placed a recording
    device and an informant, Billy Temple, in Stanley’s cell. When the State asked
    Christiansen what was on the recording, the defense objected: “The jury is going to hear
    that recording.”3 2 RP (Sept. 10, 2018) at 347. The State rephrased, and the following
    3
    As explained below, the jury did not hear the recording. Christiansen’s testimony
    is all the information the jury received about the time Stanley and Temple were celled
    together.
    15
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    exchange took place:
    [THE STATE:] The parts you listened to, did you hear any threats
    made by Mr. Stanley?
    [CHRISTIANSEN:] No.
    [THE STATE:] Did you hear any conversation that was of interest
    to your investigation or any statements made by Mr. Stanley that were of
    interest to your investigation?
    [CHRISTIANSEN:] Yes.
    [THE STATE:] What was that?
    [CHRISTIANSEN:] He talked about his firearm, that when he gets
    out. He talked about that he was very angry with the system, wanted to get
    back at, you know, them. His quote was, I want to handle them. He was
    talking about the—the judge and everybody.
    [THE STATE:] But no—no threats of bodily harm to them?
    [CHRISTIANSEN:] No.
    2 RP (Sept. 10, 2018) at 347. Christiansen also said the tape contained conversations
    about Stanley’s grandfather’s gun, but no specifics were mentioned.
    On cross-examination, the defense asked whether the informant was placed
    because of Burleson’s “distinct lack of credibility.” 2 RP (Sept. 10, 2018) at 357.
    Christiansen said he found Burleson very credible. On redirect, Christiansen elaborated
    about Burleson:
    So listening to him, his story—like I said, I didn’t have preconceived ideas
    about him, but him coming forward and me asking him basically, what do
    you want out of this? Nothing. You know, doesn’t want money, doesn’t
    want good time behavior, doesn’t want anything. He said he had only a few
    more months to be in prison and basically said he could—he was so used to
    it, it doesn’t make a difference to get out any earlier type of thing. He
    16
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    didn’t want anything. He just wanted these people not be killed. I felt that
    was why he was very credible when I talked to him.
    2 RP (Sept. 10, 2018) at 360. On recross-examination, the defense asked Christiansen
    whether the affidavit he submitted with the prosecutor’s office was based on Burleson’s
    distinct lack of credibility, to which Christiansen said yes. He explained: “There would
    be questions whether a person that’s been in prison is always going to tell the truth later
    on.” 2 RP (Sept. 10, 2018) at 363.
    Exclusion of Billy Temple’s testimony
    During trial, the State notified Stanley it would object to the testimonies of Temple
    and Brian Delano, an inmate acquaintance of Stanley’s. Stanley promptly brought the
    issue before the trial court, and the parties debated the admissibility and relevancy of
    Delano’s and Temple’s testimonies.
    The trial court asked Stanley the purpose of Delano’s and Temple’s testimonies.
    Stanley explained the purpose was to rebut Burleson’s testimony that he repeatedly
    threatened to kill the persons involved in his 2015 trial. Burleson’s testimony had
    spanned a 12-day period when he and Stanley had shared a cell. Delano would testify
    that he spent a lot of time with Stanley around that same time and never heard Stanley
    threaten anyone. Instead, Delano would testify that Stanley was frustrated that he did not
    get a fair trial and was focused on his appeal. Temple, who spent about one week in a
    17
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    cell with Stanley one year later, would testify similarly. That is, Temple would testify
    that Stanley did not make threats against the prior trial participants, but instead felt he did
    not get a fair trial and was focused on his appeal. Stanley asserted that his statements to
    Temple were particularly important to his defense because they could be verified—
    they were recorded (unbeknownst to him) by the State. Stanley argued that his statements
    to Delano and Temple were admissible under ER 803(a)(3) to show his “then existing
    state of mind . . . such as intent, plan, motive, design, [and] mental feeling.” 3 RP
    (Sept. 11, 2018) at 460.
    The State argued that the statements constituted self-serving hearsay. It especially
    objected to Stanley’s statements to Temple, which it argued were irrelevant because they
    were made too long after Stanley’s statements (to Burleson) that formed the bases of the
    State’s charges.
    Stanley had a two-fold response. First, his later statements to Temple showed his
    intent closer to the time when he would be released. Second, he emphasized that his
    statements to Delano and Temple were consistent and if the jury believed he made these
    harmless statements, this significantly undercut Burleson’s testimony.
    The trial court permitted Delano to testify but not Temple. With respect to
    Temple, the trial court described the statements as “self-serving hearsay, which was one
    18
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    year post Mr. Burleson’s statements . . . not under the stress or the excitement . . . after
    the incident.” 3 RP (Sept. 12, 2018) at 480.
    Delano’s testimony
    Delano testified he knew Stanley and Burleson from their time in the Washington
    State Corrections Center. Burleson introduced Stanley to Delano out on the yard, which
    was a form of vouching for him. The defense asked Delano whether Stanley ever
    exhibited threatening outbursts when they were together, and Delano said no. Delano and
    Stanley were friends who exercised, went to the chapel service, and walked the yard
    together. Delano said Stanley did not frequently talk about his case, but he knew Stanley
    felt the system had let him down. Delano explained, “one of the reasons I liked to hang
    out with Mr. Stanley is because the conversation wasn’t normal prison conversation,
    which is discussing cases, discussing who you are going to victimize next, discussing . . .
    how you are going to get over on the system.” 3 RP (Sept. 12, 2018) at 589. Delano said
    Stanley did not act irrationally and, if he had, Delano would not have wanted to get to
    know him.
    Stanley’s testimony
    Stanley explained he was upset that his DOSA was revoked for his first violation
    because he knew other people who had many more violations without revocation. He
    19
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    talked to Burleson about that and how he was mad at the hearings officers. Stanley also
    told Burleson about his life: where he was from, his mother, and his grandfather. Stanley
    was upset with the overall procedure of his 2015 trial and felt evidence had been unfairly
    excluded. When the State asked whether he was upset with the prosecutor, Stanley said:
    “Not him himself, no.” 4 RP (Sept. 12, 2018) at 621. He explained, “I don’t think it was
    fair. It’s not like I had anything against him. I know he’s doing his job. He’s trying to
    win.” 4 RP (Sept. 12, 2018) at 621. He said he disagreed with Judge Ramsdell on some
    of his rulings, and although they “battled” and “butted heads” in the courtroom, he
    respected him. 4 RP (Sept. 12, 2018) at 621-22. He also said no single witness in his
    2015 trial was “central.” 4 RP (Sept. 12, 2018) at 624.
    State’s closing argument
    The State reiterated how terrified the women, Brenner, and Judge Ramsdell were
    when they learned of Stanley’s threats. It discussed Burleson’s testimony: “One guy
    made him believe that he would make good on the idle threats that you hear in prison, one
    guy, Sloan Stanley.” 4 RP (Sept. 13, 2018) at 671. The State emphasized how Burleson
    broke the convict code to testify against Stanley, when breaking the code “could be
    dangerous, it could be deadly.” 4 RP (Sept. 13, 2018) at 672. It reiterated that Burleson
    20
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    got no benefit, and “he came in here at his own personal peril.” 4 RP (Sept. 13, 2018) at
    673. The State then talked about the credibility of the threats:
    [THE STATE]: . . . When [the victims] heard the threats, why were
    they afraid? Because the words sounded like Mr. Stanley. They sounded
    like things—
    [THE DEFENSE]: And, your Honor—
    [THE STATE]: —they heard before.
    [THE DEFENSE]: —I’m going to object here. The State—the State
    is moving to essentially not follow the law in this portion of the statement.
    The jury has a limiting instruction saying that what was admitted from the
    prior trial only goes to the issue of reasonable fear, not to a propensity to
    convict of this crime.
    [THE STATE]: Part of their reasonable fear, they told you their
    reasonable fear was based on the consistency of the language in the current
    threats. They heard in those threats many of the things they heard before
    and it made them afraid. Every one of them came in and told you about
    how those threats rang true to them and made them—gave them that
    reasonable fear.
    Mr. Burleson, if he was making up threats, could have said a lot of
    things, but what he said, made them reasonably afraid.
    You can put your confidence, when you do the analysis of Randy
    Burleson’s credibility . . . when you look at what he said and how it was
    corroborated by the other witnesses, you will know that it wasn’t ninety-five
    percent true. What he said that without motivation, without really knowing
    this person, without getting anything, without having a motive to lie against
    Mr. Stanley, without having any other motivation except trying to do the
    right thing, trying to prevent a tragedy, you will know you can trust a
    hundred percent, not just the ninety-five.
    4 RP (Sept. 13, 2018) at 676-77.
    21
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    Jury verdict, posttrial motions, and sentencing
    On September 13, 2018, the jury found Stanley guilty of six counts of felony
    harassment and one count of intimidating a judge. It also found Stanley demonstrated an
    egregious lack of remorse in the conduct constituting counts 1 through 4 of felony
    harassment. It further found Stanley committed felony harassment against the prosecutor
    and intimidated the judge in retaliation for their performance as officers of the court. The
    State requested an exceptional sentence based on the jury’s findings of these aggravating
    factors.
    On September 20, 2018, Stanley filed five pro se motions with the court. He
    moved to dismiss count 7, intimidating a judge, for lack of evidence. He also requested a
    new trial, asked the court to overrule the judgment notwithstanding the verdict, and
    sought dismissal pursuant to CrR 8.3. Stanley submitted a letter to a different prosecutor
    alleging—among other things—the State’s witnesses committed perjury during his trial
    and asked the State to prosecute them. On October 15, 2018, Stanley requested the court
    compel his attorney to help with his five motions. On October 31, 2018, he filed another
    motion to dismiss count 7 and aggravating factors for counts 5 and 6. The State
    responded that Stanley’s motions were meritless and should be denied.
    22
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    The court set a hearing on Stanley’s motions for November 7, 2018. At the
    hearing, the court vacated count 6 on grounds of double jeopardy. It then imposed an
    exceptional sentence of 60 months on counts 1 through 5 and 102 months on count 7,
    running consecutive, for a total term of 402 months of incarceration.
    Stanley appealed and later filed a personal restraint petition.
    ANALYSIS
    A.    FAIR TRIAL RIGHT TO PRESENT A DEFENSE
    Stanley contends the trial court violated his constitutional right to present a defense
    by prohibiting him from calling Billy Temple as a witness and excluding the audio
    surveillance from when he and Temple shared a cell. We agree.
    The right of the accused to defend against the State’s accusations is guaranteed by
    the federal and state constitutions. U.S. CONST. amend. VI, XIV; CONST. art. I, §§ 3, 22;
    Chambers v. Mississippi, 
    410 U.S. 284
    , 294, 
    93 S. Ct. 1038
    , 
    35 L. Ed. 2d 297
    (1973);
    State v. Hudlow, 
    99 Wash. 2d 1
    , 14-15, 
    659 P.2d 514
    (1983). The right to present a defense
    is “a fundamental element of due process of law.” Washington v. Texas, 
    388 U.S. 14
    , 19,
    
    87 S. Ct. 1920
    , 
    18 L. Ed. 2d 1019
    (1967).
    We apply a two-step review to a defendant’s claim that an evidentiary ruling
    violated his or her right to present a defense under the Sixth Amendment to the United
    23
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    States Constitution. State v. Arndt, 
    194 Wash. 2d 784
    , 797-98, 
    453 P.3d 696
    (2019). We
    review the trial court’s evidentiary ruling for abuse of discretion. State v. Clark, 
    187 Wash. 2d 641
    , 648, 
    389 P.3d 462
    (2017). Then, “[i]f the court excluded relevant defense
    evidence, we determine as a matter of law whether the exclusion violated the
    constitutional right to present a defense.”
    Id. at 648-49.
    The trial court abused its discretion by misapplying the law
    At trial, Stanley argued his statements were admissible under ER 803(a)(3). Under
    that rule, a declarant’s then existing mental state is not hearsay and is admissible to show
    intent or plan.
    The State sought to establish that Stanley intended or planned to harm or kill six
    different persons. It did this through one witness—Burleson. Stanley sought to rebut
    Burleson’s testimony by establishing that Burleson was lying and that Stanley never
    intended or planned to harm or kill the prior trial participants. He wanted to do this
    through two witnesses. The first witness, Delano, spent time with Stanley during the
    same time Burleson did. Delano testified that Stanley did not believe he received a fair
    trial but was not bitter toward any participant. The second witness, Temple, spent one
    week with Stanley one year later. Temple’s testimony would be similar to Delano’s. The
    obvious advantage of calling Temple was that he was the State’s informant. In addition,
    24
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    Temple prodded Stanley about his 2015 trial, yet Stanley—not knowing his conversations
    were being recorded—did not make threats against persons involved in that trial. The
    fact that Temple’s testimony would be similar to Delano’s served to bolster Delano’s
    testimony and undermine Burleson’s.
    In addition, if the jury believed both Burleson and Temple, it might find that the
    fear of the alleged victims was not reasonable. When Stanley made his statements to
    Burleson, Stanley was several months from release and posed no immediate threat to the
    alleged victims. If the jury heard the later audio recordings and believed that Stanley,
    nearing the time of his release, had resolved to address his concerns through an appeal
    rather than through violence, the jury might acquit Stanley. Defense counsel hinted at this
    when she argued that Stanley’s state of mind as he neared release was highly relevant.
    A trial court abuses its discretion by misapplying the law. State v. Pavlik, 165 Wn.
    App. 645, 650-51, 
    268 P.3d 986
    (2011). Here, the trial court abused its discretion by
    focusing on the wrong hearsay exception—excited utterance.
    The error violated Stanley’s right to a fair trial
    The right to present a defense is intended to ensure “fairness and reliability in the
    ascertainment of guilt and innocence.” 
    Chambers, 410 U.S. at 302
    . This includes the
    25
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    right to present the defendant’s version of the facts. Taylor v. Illinois, 
    484 U.S. 400
    ,
    408-09, 
    108 S. Ct. 646
    , 
    98 L. Ed. 2d 798
    (1988).
    If evidence proffered by the defense is relevant, “the burden is on the State to
    show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at
    trial.” State v. Darden, 
    145 Wash. 2d 612
    , 622, 
    41 P.3d 1189
    (2002). Below and on appeal,
    the State has not argued the proffered evidence would disrupt the trial process. Rather, it
    argued and still argues that the evidence was not relevant. As explained above, we
    disagree. It was very relevant to Stanley’s defense.
    Where the right to present a defense is not absolutely denied, such as here, we will
    not reverse if the State proves the error was harmless beyond a reasonable doubt. State v.
    Coristine, 
    177 Wash. 2d 370
    , 380 n.1, 
    300 P.3d 400
    (2013). The State argues this standard
    is met because Detective Christiansen testified about Stanley’s statements to Temple.
    The detective said that he reviewed some of the recordings. He testified,
    somewhat inconsistently, that Stanley threatened to get certain persons and spoke about a
    gun, yet he did not physically threaten anyone. This ambiguous testimony significantly
    differed from how Temple would testify. According to Stanley’s offer of proof, Temple
    would testify that Stanley did not threaten the 2015 trial participants. We conclude that
    the trial court’s error was not harmless beyond a reasonable doubt.
    26
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    B.     SUFFICIENCY OF EVIDENCE CHALLENGES
    Stanley challenges the sufficiency of the evidence by raising two arguments
    that implicate core First Amendment rights. If, on appeal, he wins these arguments,
    constitutional double jeopardy principles require these charges to be dismissed rather than
    retried. State v. Hardesty, 
    129 Wash. 2d 303
    , 309, 
    915 P.2d 1080
    (1996). We, therefore,
    must review these arguments.
    For a challenge to the sufficiency of the evidence that implicates core First
    Amendment rights, it is not enough to engage in the usual process of assessing whether
    there is sufficient evidence in the record to support the verdict. State v. Kilburn, 
    151 Wash. 2d 36
    , 49, 
    84 P.3d 1215
    (2004). Rather, the “rule of independent review” requires an
    appellate court to freshly examine “crucial facts” that bear on the constitutional question.
    Id. at 52.
    Felony harassment
    Stanley contends the State produced insufficient evidence that the alleged threats
    were made against all four female victims from the 2015 trial. He argues Burleson’s
    allegations and testimony were too vague to support the four convictions under the felony
    harassment statute. We disagree.
    27
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    “The test for determining the sufficiency of the evidence is whether, after viewing
    the evidence in the light most favorable to the State, any rational trier of fact could have
    found guilt beyond a reasonable doubt.” State v. Salinas, 
    119 Wash. 2d 192
    , 201, 
    829 P.2d 1068
    (1992). A sufficiency of the evidence challenge admits the truth of the State’s
    evidence and all reasonable inferences drawn therefrom.
    Id. “Circumstantial evidence and
    direct evidence carry equal weight when reviewed by an appellate court.” State v.
    Trey M., 
    186 Wash. 2d 884
    , 905, 
    383 P.3d 474
    (2016). We defer to the fact finder on
    credibility issues, conflicting testimony, and persuasiveness of the evidence. State v.
    Rodriquez, 
    187 Wash. App. 922
    , 930, 
    352 P.3d 200
    (2015).
    A person is guilty of harassment if “the person knowingly threatens . . . [t]o cause
    bodily injury immediately or in the future to the person threatened . . . [and] . . . [t]he
    person by words or conduct places the person threatened in reasonable fear that the threat
    will be carried out.” RCW 9A.46.020(1)(a)(i), (b). This statute criminalizes pure speech
    and therefore must comport with the First Amendment. Watts v. United States, 
    394 U.S. 705
    , 707, 
    89 S. Ct. 1399
    , 
    22 L. Ed. 2d 664
    (1969). However, certain categories of
    speech, such as “true threats,” are not protected by the First Amendment. 
    Kilburn, 151 Wash. 2d at 43
    ; State v. Williams, 
    144 Wash. 2d 197
    , 207-08, 
    26 P.3d 890
    (2001). The
    harassment statute prohibits true threats. 
    Williams, 144 Wash. 2d at 208
    .
    28
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    When determining whether the speech is a “true threat,” we conduct an
    independent review of the record “‘so as to assure ourselves that the judgment does not
    constitute a forbidden intrusion on the field of free expression.’” 
    Kilburn, 151 Wash. 2d at 50
    (internal quotation marks omitted) (quoting Bose Corp. v. Consumers Union of U.S.,
    Inc., 
    466 U.S. 485
    , 508, 
    104 S. Ct. 1949
    , 
    80 L. Ed. 2d 502
    (1984)). This so-called rule of
    independent review “is limited to review of those ‘crucial’ facts that necessarily involve
    the legal determination whether the speech is unprotected.”
    Id. at 52.
    Stanley argues the rule of independent review applies here because his sufficiency
    challenge implicates the First Amendment. Although the harassment statute criminalizes
    pure speech, Stanley does not argue his threats were not “true threats.” Instead, he argues
    the State brought insufficient evidence supporting the identity of the victims. The
    heightened standard does not apply because we are not examining whether the speech was
    unprotected. As stated earlier, we review the evidence in the light most favorable to the
    State and accept the State’s evidence as true. 
    Salinas, 119 Wash. 2d at 201
    .
    The State’s evidence supports felony harassment convictions against all four of the
    female victims from the 2015 trial. Burleson testified that Stanley threatened three
    women, the judge, and the prosecutor from his prior trial. Yet Burleson never testified
    which three and the inference was that Stanley harbored hate toward all of the women
    29
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    who had testified against him. All four women who were victims in the 2015 trial also
    testified at the present trial. Viewing the evidence and all inferences in the light most
    favorable to the State, a jury could reasonably find that Burleson meant all female victims
    and mistakenly believed there were three rather than four of them. We conclude the State
    presented sufficient evidence to sustain all five felony harassment verdicts.
    Intimidating a Judge
    Stanley argues his intimidating a judge conviction cannot stand because the statute
    criminalizes pure speech without a scienter requirement in violation of the First and
    Fourteenth Amendments. We disagree.
    RCW 9A.72.160(1) provides: “A person is guilty of intimidating a judge if a
    person directs a threat to a judge because of a ruling or decision of the judge in any
    official proceeding.” Under RCW 9A.04.110(28)(a), “threat” means “[t]o communicate,
    directly or indirectly, the intent . . . [t]o cause bodily injury in the future to the person
    threatened or to any other person.” See also RCW 9A.72.160(2)(b).4 As discussed
    above, “true threats” are not protected by the First Amendment. 
    Kilburn, 151 Wash. 2d at 43
    . “A true threat is a serious threat, not one said in jest, idle talk, or political argument.”
    4
    RCW 9A.04.110 has been amended several times. Subsection (28)(a), not (25),
    now contains the definition of “threat.”
    30
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    Id. We determine whether
    speech is a true threat “‘in light of the entire context,’” asking
    “‘whether a reasonable person in the defendant’s place would foresee that in context the
    listener would interpret the statement as a serious threat or a joke.’” Trey 
    M., 186 Wash. 2d at 894
    (quoting 
    Kilburn, 151 Wash. 2d at 46
    ).
    Stanley argues the State is required to show his subjective intent to threaten under
    Elonis v. United States, 
    575 U.S. 723
    , 
    135 S. Ct. 2001
    , 
    192 L. Ed. 2d 1
    (2015). In Elonis,
    the defendant was charged under a federal statute criminalizing “‘any communication
    containing any threat . . . to injure the person of 
    another.’” 135 S. Ct. at 2004
    (quoting
    18 U.S.C. § 875(c)). Elonis challenged his conviction, arguing the jury should have been
    required to find he intended his communications to be threats.
    Id. at 2007.
    The Supreme
    Court explained: “Federal criminal statutes that are silent on the required mental state
    should be read to include ‘only that mens rea which is necessary to separate’ wrongful
    from innocent conduct.”
    Id. at 2003
    (quoting Carter v. United States, 
    530 U.S. 255
    , 269,
    
    120 S. Ct. 2159
    , 
    147 L. Ed. 2d 203
    (2000)). The court reasoned, “[h]aving liability turn
    on whether a ‘reasonable person’ regards the communication as a threat—regardless of
    what the defendant thinks—‘reduces culpability on the all-important element of the crime
    to negligence.’”
    Id. at 2011
    (quoting United States v. Jeffries, 
    692 F.3d 473
    , 484 (6th
    Cir. 2012) (Sutton, J., dubitante)).
    31
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    Our Supreme Court rejected the argument that Elonis requires abandoning
    Washington’s objective-person standard. Trey 
    M., 186 Wash. 2d at 908
    . Trey M. was
    convicted of felony harassment, which requires the defendant “‘knowingly threatens,’”
    or “‘subjectively know[s] that he or she is communicating a threat.’”
    Id. at 895
    (quoting
    RCW 9A.46.020(1)(a); State v. J.M., 
    144 Wash. 2d 472
    , 481, 
    28 P.3d 720
    (2001)). Thus,
    unlike the federal statute in Elonis, Washington’s harassment statute has a mens rea
    requirement.
    Id. at 897-98.
    Elonis turned on statutory construction—not the First
    Amendment—and was limited to the federal statute it addressed.
    Id. at 896.
    Therefore,
    Elonis did not control and the court declined to abandon its established First Amendment
    precedent.
    Stanley distinguishes Trey M., arguing RCW 9A.72.160 contains no mens rea
    requirement and therefore Elonis requires us to read one in. He argues that under Trey
    M., “the lack of a mens rea in the intimidating a judge statute creates the ‘gap’ Elonis
    requires to be filled.” Am. Br. of Appellant at 31. We disagree. “Importantly, Elonis did
    not mandate a scienter requirement for all offenses. Rather, Elonis creates a gap-filling
    rule that stands for the ‘presumption’ of a scienter requirement when the federal offense
    is otherwise silent.” Trey 
    M., 186 Wash. 2d at 897
    (internal quotation marks omitted)
    (quoting 
    Elonis, 135 S. Ct. at 2010-11
    ). Elonis was a federal statutory construction case;
    32
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    the court did not consider First Amendment 
    issues. 135 S. Ct. at 2012
    . Thus, Stanley’s
    argument that Elonis and the First Amendment require us to read a mens rea requirement
    into RCW 9A.72.160(1) fails.
    We do, however, find the statute already requires an element of conscious
    wrongdoing by the speaker. The threat must be communicated because of an official
    ruling by the judge threatened. Thus, the statute does not criminalize “idle talk” or
    “political argument.” We agree this statute implies a mens rea requirement above
    negligence and is therefore consistent with “‘the conventional requirement for criminal
    conduct—awareness of some wrongdoing.’” 
    Elonis, 135 S. Ct. at 2011
    (quoting Staples
    v. United States, 
    511 U.S. 600
    , 606-07, 
    114 S. Ct. 1793
    , 
    128 L. Ed. 2d 608
    (1994)). For
    these reasons, we reject Stanley’s sufficiency challenge.
    C.     EVIDENTIARY ISSUE THAT WILL OCCUR ON REMAND
    In the interest of judicial economy, an appellate court may address an issue that is
    likely to occur following remand if the parties have briefed and argued the issue in detail.
    Philadelphia II v. Gregoire, 
    128 Wash. 2d 707
    , 716, 
    911 P.2d 389
    (1996). We exercise our
    discretion and address a central evidentiary issue that will occur on remand and do so to
    foreclose a future appeal on that issue.
    33
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    Stanley argues the trial court violated ER 404(b) and ER 403 by allowing the State
    to introduce evidence of his conduct toward the female victims in his 2015 trial because it
    was propensity evidence. He further argues the court erred by allowing the e-mails from
    his 2015 trial to be admitted as substantive evidence. We address each argument in turn.
    ER 404(b) bars the admission of evidence of prior bad acts for the purpose of
    proving a person’s character and showing the person acted in conformity with that
    character. State v. Gunderson, 
    181 Wash. 2d 916
    , 922, 
    337 P.3d 1090
    (2014). This rule
    seeks to prevent a defendant from being convicted for misconduct not at issue.
    See Williams v. New York, 
    337 U.S. 241
    , 247, 
    69 S. Ct. 1079
    , 
    93 L. Ed. 1337
    (1949).
    Evidence of prior bad acts may, however, “‘be admissible for any other purpose,
    depending on its relevance and the balancing of its probative value and danger of unfair
    prejudice.’” 
    Gunderson, 181 Wash. 2d at 922
    (quoting State v. Gresham, 
    173 Wash. 2d 405
    ,
    420, 
    269 P.3d 207
    (2012)). When determining whether prior bad acts are admissible, the
    trial court considers the purpose for which the evidence is sought, its relevancy to an
    element of the crime charged, and whether its probative value outweighs the danger of
    unfair prejudice. State v. Vy Thang, 
    145 Wash. 2d 630
    , 642, 
    41 P.3d 1159
    (2002). In other
    words, ER 404(b) implicates ER 403. 
    Gunderson, 181 Wash. 2d at 923
    . We review
    ER 403 rulings for abuse of discretion. State v. Taylor, 
    193 Wash. 2d 691
    , 697, 
    444 P.3d 34
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    1194 (2019). “A trial court abuses its discretion when its decision is manifestly
    unreasonable or is based on untenable grounds or reasons.”
    Id. In harassment cases,
    evidence that the victim knew of the defendant’s past violent
    acts is admissible to prove the victim’s reasonable fear. See State v. Ragin, 
    94 Wash. App. 407
    , 411-12, 
    972 P.2d 519
    (1999). The prior conduct permits the trier of fact to
    understand the context and better evaluate the reasonableness of the victim’s fear.
    See
    id. at 411
    (“If the jury were presented with evidence of [the current threats] alone, it
    may have believed [the victim] was overreacting.”). This reasoning applies here. The
    details of the old e-mails were highly relevant so a jury could assess the reasonableness of
    each of the four women’s fear upon hearing the prison threats. The greater the fear
    reasonably caused by the old e-mails, the more likely a prison threat would induce
    reasonable fear that Stanley would carry out the threat once freed.
    Propensity evidence
    Stanley argues the trial court erred in allowing the State to intentionally elicit
    propensity evidence from its witnesses. He points to several moments where the State
    compared Stanley’s 2015 conduct to the current conduct over defense’s objections. For
    example, the State asked Brenner if there was “anything about the . . . alleged threats . . .
    that didn’t sound concerning or accurate?” 2 RP (Sept. 10, 2018) at 306. Brenner
    35
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    responded, “it sounded believable because it was similar things that he had said before in
    the past.” 2 RP (Sept. 10, 2018) at 306. Although the State chose to ask whether the
    threats seemed “accurate,” which did elicit a comparison, the question is clearly directed
    at understanding Brenner’s fear.
    The State asked Judge Ramsdell if there was anything “that made you believe that
    Stanley would continue his behavior even after conviction?” 2 RP (Sept. 11, 2018) at
    395. The court overruled defense’s propensity objection. The judge answered, “I could
    only assume that if he doesn’t understand what’s wrong, he’s probably not going to
    change that behavior.” 2 RP (Sept. 11, 2018) at 396. The State continued, “Did that
    make his threats more real, more concerning, more fearful to you?” 2 RP (Sept. 11, 2018)
    at 396. The judge said, “Yes, in short.” 2 RP (Sept. 11, 2018) at 396. While the State
    could have been more careful about eliciting propensity evidence, this line of questioning
    also spoke directly to Judge Ramsdell’s reasonable fear that Stanley would carry out his
    current threats.
    Stanley points to several instances where the victims compared Stanley’s prior
    threats to the current threats during testimony. In those instances, the victims described
    how Stanley’s language in the current threats was similar to his prior threats. The State
    sought to elicit testimony that the victims’ fear was reasonable because Stanley continued
    36
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    acting in a frightening way. Again, the victims’ history with Stanley places the threats in
    context and allows the trier of fact to determine whether their fear was reasonable. The
    court properly instructed the jury to consider the evidence for the sole purpose of
    determining whether “the alleged victims could have reasonable fear if the alleged threats
    were made.” CP at 108. We presume the jurors followed the court’s instructions. Diaz
    v. State, 
    175 Wash. 2d 457
    , 474, 
    285 P.3d 873
    (2012).
    Substantive evidence
    Stanley next contends the trial court erred by admitting the messages from 2015 as
    substantive evidence. Stanley argued the messages should only be permitted to refresh
    the witnesses’ recollection, but the court disagreed. The witnesses read many of the most
    offensive messages aloud before they were admitted into evidence. Stanley argues the
    probative value of these messages was outweighed by their prejudicial effect. We
    disagree.
    A danger of unfair prejudice exists “‘[w]hen evidence is likely to stimulate an
    emotional response rather than a rational decision . . . .’” State v. Beadle, 
    173 Wash. 2d 97
    ,
    120, 
    265 P.3d 863
    (2011) (quoting State v. Powell, 
    126 Wash. 2d 244
    , 264, 
    893 P.2d 615
    (1995)). Here, the messages, although graphic, were both highly relevant and potentially
    unfairly prejudicial. Just as Stanley was entitled to present his best case by having his
    37
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    best evidence considered by the jury, the State also was entitled to have its best interest
    considered. Our conclusion might be different but for the fact that the details of these
    e-mails were highly relevant for the State to meet its burden of proof.
    Stipulation
    Finally, Stanley mentions several times that he offered to stipulate to the element
    of reasonable fear. “A ‘stipulation’ is an express waiver that concedes, for purposes of
    trial, the truth of some alleged fact, with the effect that one party need offer no evidence
    to prove it and the other is not allowed to disprove it.” State v. Case, 
    187 Wash. 2d 85
    , 90,
    
    384 P.3d 1140
    (2016). The State is generally not required to accept a defendant’s
    stipulation to an element of the charged crime nor is it precluded from offering evidence
    on the issue merely because a defendant offers to stipulate. 
    Taylor, 193 Wash. 2d at 697
    .
    However, when unfair prejudice substantially outweighs the proffered evidence’s
    relevance, ER 403 requires the State to accept the stipulation and the trial court to exclude
    the proffered evidence.
    Id. Stanley argued the
    admission of prior messages would result in a retrial of his
    previous case and would unfairly prejudice the jury as to the only disputed element at
    trial—whether the threats were made. Stanley argues that in denying his motion to
    stipulate, the element of reasonable fear was explored at length and resulted in the
    38
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    comparison of his current charges to his prior conduct. Our Supreme Court addressed a
    similar issue in Taylor and held the defendant’s no-contact order admissible in his trial for
    a felony violation of that order. The court held the trial court did not abuse its discretion
    or violate ER 403 because the order was closely related to the current charges and is
    evidence of multiple elements of that offense.
    Id. at 693-94.
    Here, Stanley’s charges
    were elevated to felony harassment in part because of his prior threats to the victims.
    Surely this evidence was prejudicial to Stanley, but the victims’ testimony was evidence
    of an element of his current charged offenses. The trial court did not err in denying his
    motion to stipulate.
    D.     PERSONAL RESTRAINT PETITION
    Stanley raises three issues by way of personal restraint petition (PRP).
    He first argues the State violated his due process rights by eliciting false testimony
    from Burleson and by giving false impressions to the jury multiple times. For the reasons
    noted in the State’s response, these arguments are unpersuasive. Regardless, the relief he
    would be entitled to is the same relief we have provided by reversing his convictions and
    remanding for a new trial. For this reason, we need not address his first PRP argument.
    39
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    He next argues he should have received a Frank’s5 hearing because there were
    numerous inaccuracies in the certificate of probable cause. Because we are remanding
    for retrial, he will have the opportunity to make this request on remand.
    He lastly argues the State committed outrageous governmental misconduct
    warranting dismissal and the trial court erroneously denied his CrR 8.3(b) motion.
    CrR 8.3 governs dismissal of criminal cases at various stages. Relevant here, a court may
    “dismiss any criminal prosecution due to arbitrary action or governmental misconduct
    when there has been prejudice to the rights of the accused which materially affect the
    accused’s right to a fair trial.” CrR 8.3(b).
    The State responds that Stanley cannot raise his CrR 8.3(b) claim postconviction
    because his criminal prosecution has terminated. We agree.
    “A criminal prosecution is no longer ongoing postjudgment and therefore is not
    subject to dismissal under CrR 8.3(b).” State v. Basra, 
    10 Wash. App. 2d
    279, 286, 
    448 P.3d 107
    (2019), review denied, 
    194 Wash. 2d 1020
    , 
    455 P.3d 133
    (2020); see also State v.
    Pringle, 
    83 Wash. 2d 188
    , 190, 
    517 P.2d 192
    (1973) (holding the “criminal prosecution”
    5
    Franks v. Delaware, 
    438 U.S. 154
    , 
    98 S. Ct. 2674
    , 
    57 L. Ed. 2d 667
    (1978).
    40
    No. 36432-1-III; No. 37546-3-III
    State v. Stanley; PRP of Stanley
    terminated upon entry of a guilty plea and order of judgment and sentence).6
    Stanley argues his CrR 8.3(b) motion is appropriate at this juncture. He cites
    RCW 10.73.090(3)(b) to argue his judgment is not final until this court rules on his direct
    appeal, which he has consolidated with his PRP. It is on these grounds that he argues his
    “PRP is not post-conviction, because there is still an ongoing prosecution.” Pet’r’s Reply
    to State’s Response at 25. We disagree.
    A PRP is a form of postconviction relief regardless of whether it has been
    consolidated with a direct appeal. That Stanley is in the process of appealing his
    conviction does not make his prosecution ongoing; his prosecution terminated upon entry
    of judgment below.
    6
    Stanley could have sought relief under CrR 7.8, which provides: “On motion and
    upon such terms as are just, a court may relieve a party from a final judgment, order, or
    proceeding for . . . misconduct of an adverse party . . . [or a]ny other reason justifying
    relief from the operation of the judgment.” CrR 7.8(b)(3), (5). But he did not present an
    argument on these grounds.
    41
    No. 36432-1-III; No. 375 6-3-III
    State v. Stanley; P RP ofS anley
    For the reasons not d, we reverse Stanley's convictions, remand for further
    proceedings consistent wi       this opinion, and dismiss Stanley's PRP.
    A majority of the p nel has determined this opinion will not be printed in the
    I
    Washington Appellate Re orts, but it will be filed for public record pursuant to
    RCW 2.06.040.
    Lawrence-Berrey, J.
    j
    WE CONCUR:
    Q . ..,_          l   c...
    Pennell, C.J.                                Siddoway, J.
    42