State of Washington v. Sloan Patrick Stanley ( 2021 )

FILED
APRIL 15, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
COURT OF APPEALS, DIVISION III, STATE OF
WASHINGTON
STATE OF WASHINGTON, ) No. 36432-1-III
) (consolidated with
Respondent, ) No. 37546-3-III)
)
v. )
)
SLOAN PATRICK STANLEY, ) ORDER DENYING
) MOTIONS FOR
Appellant. ) RECONSIDERATION AND
___________________________________ ) WITHDRAWING OPINION
In the Matter of the Personal Restraint of )
)
SLOAN PATRICK STANLEY, )
)
Petitioner. )
The court has considered Sloan Stanley’s pro se motion for reconsideration and
the State’s motion for reconsideration of this court’s opinion filed on March 2, 2021, and
is of the opinion that both motions should be denied. Therefore,
IT IS ORDERED that the State’s motion for reconsideration and Mr. Stanley’s pro
se motion for reconsideration are hereby denied.
IT IS FURTHER ORDERED that the opinion filed on March 2, 2021, is hereby
withdrawn and a new opinion (which adds a footnote on page 26) shall be filed this day.
PANEL: Judges Lawrence-Berrey, Pennell, and Siddoway
FOR THE COURT:
________________________________
REBECCA PENNELL
CHIEF JUDGE
FILED
APRIL 15, 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 ) UNPUBLISHED OPINION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 Wn.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 Wn.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
Wn.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 Wn.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.4
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 Wn.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
4 In addition to the reasons discussed above for why Temple’s testimony would be
relevant, the State opened the door to Temple testifying. It did this by having Detective
Christiansen testify that Stanley told Temple he would get a gun and “handle them,”
referring to the judge and everybody. 2 RP (Sept. 10, 2018) at 347; see State v. Jones,
144 Wn. App. 284, 298, 183 P.3d 307 (2008) (irrelevant evidence may be made relevant
when the other party opens the door to it).
26
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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.
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 Wn.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
Wn.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.
27
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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.
“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 Wn.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 Wn.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 Wn. 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
28
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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
Wn.2d at 43; State v. Williams, 144 Wn.2d 197, 207-08, 26 P.3d 890 (2001). The
harassment statute prohibits true threats. Williams, 144 Wn.2d at 208.
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 Wn.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
29
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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 Wn.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
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,
30
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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).5 As discussed
above, “true threats” are not protected by the First Amendment. Kilburn, 151 Wn.2d at
43. “A true threat is a serious threat, not one said in jest, idle talk, or political argument.”
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 Wn.2d
at 894 (quoting Kilburn, 151 Wn.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
5
RCW 9A.04.110 has been amended several times. Subsection (28)(a), not (25),
now contains the definition of “threat.”
31
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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)).
Our Supreme Court rejected the argument that Elonis requires abandoning
Washington’s objective-person standard. Trey M., 186 Wn.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 Wn.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
32
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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 Wn.2d at 897 (internal quotation marks omitted)
(quoting Elonis, 135 S. Ct. at 2010-11). Elonis was a federal statutory construction case;
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.
33
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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 Wn.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.
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 Wn.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 Wn.2d at 922 (quoting State v. Gresham, 173 Wn.2d 405,
34
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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 Wn.2d 630, 642, 41 P.3d 1159 (2002). In other
words, ER 404(b) implicates ER 403. Gunderson, 181 Wn.2d at 923. We review
ER 403 rulings for abuse of discretion. State v. Taylor, 193 Wn.2d 691, 697, 444 P.3d
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 Wn. 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.
35
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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
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
36
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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
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 Wn.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
37
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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 Wn.2d 97,
120, 265 P.3d 863 (2011) (quoting State v. Powell, 126 Wn.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
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 Wn.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 Wn.2d at 697.
38
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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
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.
39
No. 36432-1-III; No. 37546-3-III
State v. Stanley; PRP of Stanley
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.
He next argues he should have received a Frank’s6 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).
6
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
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 Wn. App. 2d 279, 286, 448
P.3d 107 (2019), review denied, 194 Wn.2d 1020, 455 P.3d 133 (2020); see also State v.
Pringle, 83 Wn.2d 188, 190, 517 P.2d 192 (1973) (holding the “criminal prosecution”
terminated upon entry of a guilty plea and order of judgment and sentence).7
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
7
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. 36432-1-111; No. 37546-3-111
State v. Stanley; P RP ofStanley
conviction does not make his prosecution ongoing; his prosecution terminated upon entry
of judgment below.
For the reasons noted, we reverse Stanley's convictions, remand for further
proceedings consistent with this opinion, and dismiss Stanley's PRP.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J. ,
j
WE CONCUR:
Pennell, C.J.
42