State Of Washington, V. Aiden Fetters

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

No. 86840-3-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

AIDEN FETTERS,

Appellant.

DÍAZ, J. — A jury convicted Aiden Fetters of burglary for entering a home to a

commit a crime, when making a delivery for United Parcel Service (UPS). He argues that

the court improperly permitted law enforcement to express opinions about his guilt, that

his counsel was ineffective in multiple ways, and that the court gave a jury instruction in

violation of his constitutional rights and abused its discretion when it admitted evidence

of Fetters’ earlier similar entry into another house. We affirm.

I. FACTS

In July 2022, Fetters, a UPS driver, arrived at the front door of the Califf family’s

home to deliver a package. As captured on a home security video played at trial, Fetters

first knocked on the front door and announced himself as UPS multiple times. After

receiving no answer, he walked around to the back of the house, peered through a glass

doorway, opened it, and entered the back of the house. He looked around briefly, went

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back outside, and entered the house through the front door.

Once inside, the Califfs’ security camera footage further showed that Fetters

announced himself again and walked slowly and deliberately through the house. He then

picked up a purse but took nothing from it; the wallet was not in the purse at the time.

Fetters then continued down the hallway where he encountered the Califfs’ 15-

year-old daughter, E.C. In a later-recorded interview also played at trial, he told the

arresting officer Sgt. Garique Clifford that he informed E.C. that he entered the home

because he needed a signature for the package and asked her if everything was okay,

noting the door was open. After a brief exchange, he left without getting a signature.

Fetters testified at trial that he entered the Califf home because he saw that the

front door was ajar and that there were no lights visibly on after dark, so he was concerned

and wanted to make sure the residents were okay. He variously described the front door

as “ajar” or “unlatched.” Finally, he testified that he handed the package to the Califf’s

teenage daughter once he met her inside, and that she thanked him and he left without

taking anything from the house.

The jury convicted Fetters of residential burglary, as charged. A superior court

sentenced him a month later, in March 2023, and he timely appealed.

II. ANALYSIS

A. Opinions About Fetters’ Guilt

Fetters argues that the trial court erred when it allowed the jury to hear evidence

or testimony in which he alleges Sgt. Clifford improperly opined that Fetters was not being

truthful or was guilty of burglary. It is generally improper for any witness to express a

personal opinion on a defendant’s guilt. State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d

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1012 (1967).

As Fetters concedes, however, he did not object to any of the allegedly improper

statements of opinion at trial. He asks this court, nonetheless, to review this assignment

of error under RAP 2.5(a)(3), claiming the admission of these statements constitute

manifest constitutional error. This court has recognized that opinions on ultimate issues

may violate a defendant’s constitutional right to a fair and impartial jury trial. State v.

Dolan, 118 Wn. App. 323, 329, 73 P.3d 1011 (2003).

However, when such an alleged statement is not objected to at trial, as here, the

admission of such evidence “is not automatically reviewable as a ‘manifest’ constitutional

error. ‘Manifest error’ requires a nearly explicit statement by the witness that the witness

believed the accusing victim,” or “an explicit or almost explicit witness statement” on an

ultimate issue of fact or expressing a personal opinion on the defendant’s guilt. State v.

Kirkman, 159 Wn.2d 918, 936-37, 155 P.3d 125 (2007) (citation omitted); see also State

v. Smiley, 195 Wn. App. 185, 190, 379 P.3d 149 (2016) (holding that “[t]estimony that is

not a direct comment on the defendant’s guilt or on the veracity of a witness, is otherwise

helpful to the jury, and is based on inferences from the evidence, is not improper opinion

testimony”).

Following Fetters’ organization, the allegedly improper statements may be

grouped in two sets. The first set concerns Sgt. Clifford’s comments while he interrogated

Fetters, and the second set concerns statements the sergeant made during trial. We

address each in turn.

1. Sgt. Clifford’s Interrogation

The State played the body-cam footage of Sgt. Clifford’s interrogation. Sgt. Clifford

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is heard telling Fetters that his version of events “doesn’t make sense,” encouraging

Fetters to “be square” with him, and urging Fetters to tell him “the honest truth.” Sgt.

Clifford also is heard telling Fetters that his explanation sounded “weird to [Sgt. Clifford]”

and “seem[ed] kind of odd.”

Sgt. Clifford’s commentary certainly expressed skepticism about Fetters’ account,

and, as a matter of best practice, the parties could have redacted these statements from

the interrogation. His statements, however, were not, on their face, individually or

together, “an explicit or almost explicit” statement on “an ultimate issue of fact” or

represented Sgt. Clifford’s “personal opinion on [Fetters’] guilt.” Kirkman, 159 Wn.2d at

936-37. Instead, as in Smiley, Sgt. Clifford is essentially telling Fetters “‘to tell [him] the

truth.’” 195 Wn. App. at 190. And, also as in Smiley, rather than “stating a personal

opinion about [Fetters’] veracity,” Sgt. Clifford’s comments were “‘tactical interrogation

statements designed to challenge the defendant’s initial story and elicit responses that

are capable of being refuted or corroborated by other evidence or accounts of the event

discussed.’ It gave the defendant the opportunity to explain why his account of what

happened made sense despite its seeming inconsistency with other evidence.” 195 Wn.

App. at 190 (citation omitted) (quoting State v. Notaro, 161 Wn. App. 654, 669-70, 255

P.3d 774 (2011)); see also State v. Demery, 144 Wn.2d 753, 763, 30 P.3d 1278 (2001)

(plurality opinion) (where a plurality of our Supreme Court held that “juries understand

that the police typically do not believe the defendant’s story” and that, therefore, they are

unlikely to “attach any special significance to this fact,” or to give an officer’s statements

in a pretrial interview disproportionate weight because “an officer’s statement made

during a taped interview is essentially different from a prosecutor’s statement made during

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trial” (emphasis omitted) (citing Dubria v. Smith, 224 F.3d 995, 1002 (9th Cir. 2000));

United States v. Espinosa, 827 F.2d 604, 613 (9th Cir. 1987)); Koenig v. Pierce County,

151 Wn. App. 221, 231, 211 P.3d 423 (2009) (recognizing that “[a] plurality opinion is

often regarded as highly persuasive, even if not fully binding”).

Therefore, these statements were “not an impermissible opinion regarding

[Fetters’] veracity,” let alone explicit or nearly explicit statements of guilt. Smiley, 195 Wn.

App. at 190; Kirkman, 159 Wn.2d at 937.

Fetters also contends that Sgt. Clifford conveyed his explicit opinion of his guilt

during the interview by telling him what he was being arrested for. Specifically, Fetters

argues that by “explicitly” telling Fetters what he was being arrested for, he “made an

explicit statement that he held these personal beliefs: Fetters you’re a burglar; You’re a

thief; You’re a liar. It doesn’t get more explicit than this.” In fact, Sgt. Clifford stated,

“Okay. So right now you’re under arrest for burglary and attempted theft, okay?”

We conclude that the words Sgt. Clifford actually uttered are not a “nearly explicit”

statement of Clifford’s opinion that Fetters was guilty, but only, at most, that he had

probable cause to arrest him, was effectuating the arrest, and confirmation that Fetters

understood that action. Fetters’ characterization of those statements would be examples

of such explicit statements, but Sgt. Clifford did not make such statements. In turn, none

of Sgt. Clifford’s pretrial interview statements constitute manifest constitutional error.

Kirkman, 159 Wn.2d at 936.

2. Sgt. Clifford’s Trial Testimony

Fetters next claims that the State manifestly violated his constitutional rights when

it elicited Sgt. Clifford’s testimony that Fetters’ conduct of walking around the Califfs’ home

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did not appear to him to be a “welfare check,” were not “above board,” and appeared to

be “casing” behavior, based upon the sergeant’s law enforcement experience. Fetters

claims each statement constitutes an improper opinion on his veracity or guilt. We

disagree because he takes each statement out of context and, ultimately, none are

explicit statements of either veracity or guilt.

As to Sgt. Clifford’s statement that “what happened here” did not “appear to be like

a . . . kind of welfare check,” Fetters ignores his own theory of the case, namely—as his

counsel stated in his opening statement—that when he arrived at the Califfs’ home “[h]e

thought it was odd” that the front door was ajar, that he was concerned, that “[s]omething

didn’t feel right.” And that he entered and exited the house “like someone concerned for

safety in an unusual situation.”

Fetters further ignores that the State asked Sgt. Clifford, first, whether as an officer

he did “welfare checks” and asked him to describe how they typically commence and

conclude. The sergeant testified that he had conducted hundreds or even thousands of

such checks, that they begin with a neighbor, family member, or friend asking law

enforcement to check on someone they have not heard from to see if they need help, and

that they conclude “in every case . . . in contact with the homeowner.” He was then asked

factually if his understanding of Fetters’ behavior was “that kind of welfare check,” so

defined. He said no and described what he saw on the video that distinguished a law

enforcement officer’s welfare check from Fetters.

Sgt. Clifford’s use of the term “above board” also occurred (twice) in the context of

how he conducts welfare checks. In addition to being in contact with the homeowner,

Sgt. Clifford testified that he ensures “everything’s above board,” by which he meant

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officers “make sure that the homeowner knows that we’ve been in their house. If they’re

not home for some reason, I’ll leave a card. I’ll leave a message on their phone.”

These statements do not explicitly or nearly explicitly convey the belief that Fetters

was guilty of burglary or was lying when describing his own subjective intent. Kirkman,

159 Wn.2d at 936. Instead, the State elicited both statements to factually contrast Fetters’

behavior from law enforcement’s actions, when they are both concerned—as Fetters’

counsel described it—about a resident’s safety.

As to Sgt. Clifford’s statement that Fetters’ conduct was “the sort of thing” that

could “raise any red flags” of “casing type behavior,” Fetters ignores that that statement

followed Sgt. Clifford’s explanation of what “casing behavior” is. Sgt. Clifford explained

that persons who commit burglary or car prowls will visit a neighborhood or construction

sites, multiple times “looking for an opportunity to commit crimes, generally, property

crimes of theft and whatnot.” He further explained that law enforcement, in that context,

would “make contact with [the suspect] to see what they’re up to.”

It was in that context that Sgt. Clifford testified that, unlike most delivery drivers,

persons who are “casing” a neighborhood or house do look in people’s window or “go

around the back or side” of the house, as Fetters did. As in the “welfare check” testimony,

the State elicited this factual comparison of Fetters’ behavior to unlawful actions that

would prompt a law enforcement response, in response to the claim that—as Fetters’

counsel described it—he was concerned about a resident’s safety.

Regardless, this final statement also did not explicitly or nearly explicitly opine that

he believed the actions Fetters was taking made him guilty of the later burglary or meant

he was lying when describing his own subjective intent for going through the back door.

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Kirkman, 159 Wn.2d at 936. At most, Sgt. Clifford commented that Fetters’ initial

actions—again looking through the window or going around the back—would have

potentially prompted initial law enforcement involvement. This statement is far from a

direct statement that reaches a manifest constitutional error. Smiley, 195 Wn. App. at

190; Kirkman, 159 Wn.2d at 936; cf. State v. Barr, 123 Wn. App. 373, 382, 98 P.3d 518

(2004) (holding it was manifest error for law enforcement to make “observations of [the

defendant’s] behavior indicating that there were signs” he was not being truthful or that “it

was obvious . . . he was afraid he was going to go to prison for this”); State v. Johnson,

152 Wn. App. 924, 933, 934, 219 P.3d 958 (2009) (holding it was improper for a witness

to testify “oh my god, [the victim’s accusations are] true”).

What is more, the jury was properly instructed that they were the sole judges of

the credibility of each witness and of the value or weight to be given to each witness’

testimony. Our Supreme Court in Kirkman held that such instructions weigh against

finding actual prejudice because “[j]urors are presumed to follow the court’s instructions.”

159 Wn.2d at 937, 935 (further holding that “‘[e]ssential to this determination is a plausible

showing by the defendant that the asserted error had practical and identifiable

consequences in the trial of the case’” (internal quotation marks omitted) (quoting State

v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999))). This deference reflects the

trust we afford the jury’s abilities and the respect we have for its constitutional role. Id. at

938.

Therefore, Fetters’ first four assignments of error fail.

B. Ineffective Assistance of Counsel

1. For Failing to Object

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Fetters next contends that, even if Sgt. Clifford’s statements were not explicit or

nearly explicit opinions on his veracity or guilt, “[t]here can be no doubt” that the court

would have sustained objections alleging they were improper opinion. He then argues,

had his counsel made such objections, that there is a reasonable probability the jury

would not have convicted him and that, therefore, it was constitutionally ineffective not to

object. We disagree.

To make an ineffective assistance of counsel claim, a defendant must make two

showings: (1) that their counsel’s representation was deficient, and (2) that the deficient

representation prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334-35,

899 P.2d 1251 (1995). This court applies a strong presumption that counsel’s

representation was effective. Id. at 335. To prove deficiency, a defendant must show

that the representation “fell below an objective standard of reasonableness based on

consideration of all the circumstances.” Id. To prove prejudice, a defendant must show

there is a reasonable probability that, without counsel’s errors, the result of the proceeding

would have been different. Id.

“If a defendant centers their claim of ineffective assistance of counsel on their

attorney’s failure to object, then ‘the defendant must show that the objection would likely

have succeeded[,]’” to show deficient performance. State v. Vazquez, 198 Wn.2d 239,

248, 494 P.3d 424 (2021) (emphasis added) (quoting State v. Crow, 8 Wn. App. 2d 480,

508, 438 P.3d 541 (2019)). “Only in egregious circumstances, on testimony central to the

State’s case, will the failure to object constitute incompetence of counsel justifying

reversal.” Id. However, “if defense counsel fails to object to inadmissible evidence, then

they have performed deficiently, and reversal is required if the defendant can show the

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result would likely have been different without the inadmissible evidence.” Id. (quoting

Crow, 8 Wn. App. 2d at 508-09). “Because claims of ineffective assistance of counsel

present mixed questions of law and fact, we review them de novo.” In re Pers. Restraint

of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).

Our Supreme Court in Kirkman instructs us to consider “the circumstances of the

case,” including the following five factors to guide whether the statements were

inadmissible opinion testimony and, thus, the failure to object deficient: “(1) ‘the type of

witness involved’, (2) ‘the specific nature of the testimony’, (3) ‘the nature of the charges’,

(4) ‘the type of defense, and’ (5) ‘the other evidence before the trier of fact’.” 159 Wn.2d

at 928 (quoting Demery, 144 Wn. 2d at 759). Fetters addresses only the first and third

factors without any substantive analysis. Nonetheless, we consider each factor as

needed to each type of statement challenged.

As to the statements Sgt. Clifford made during his interrogation of Fetters, the

nature of the testimony weighs heavily in favor of admissibility. As explained above, Sgt.

Clifford’s statements were tactical interview questions rather than statements of his

personal beliefs, and this court has recognized a jury is less likely to be improperly swayed

by an officer’s statements in a pretrial interview than by statements in trial testimony.

Notaro, 161 Wn. App. at 669; Demery, 144 Wn.2d at 763. Thus, the court was not “likely”

to have sustained the objection to those statements of skepticism and, even if some court

may have sustained the objection, Fetters does not establish that it matters.

As to Sgt. Clifford’s trial testimony, we hold that only the first factor weighs in favor

of a court “likely” deeming the statements improper opinion testimony, but the remaining

factors lean against such a likelihood.

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As to the first factor (type of witness), under Notaro and Demery, there is a risk

that a law enforcement officer carries greater weight with a jury than a civilian witness.

Id.

As to the second factor (nature of the testimony), as discussed above, Sgt.

Clifford’s statements regarding welfare checks and casing behavior were factual

comparisons and contrasts, rather than statements of Fetters’ truthfulness or guilt. Cf.

State v. Saunders, 120 Wn. App. 800, 812-13, 86 P.3d 232 (2004) (holding it was

improper for a detective to state that the defendant’s responses “weren’t always truthful”);

State v. McBride, 192 Wn. App. 859, 873, 370 P.3d 982 (2016) (holding, in the

unpublished portion, that it was improper for law enforcement to testify that the State’s

key witness had given him “truthful information”). 1

As to the third and fourth factors (the nature of the charges and defense), Sgt.

Clifford’s statements regarding welfare checks and casing behavior were not elements of

the charge of burglary, but, as explained above, directly responsive to Fetters’ primary

defense, namely, that he did not intend to enter the Califfs’ home to commit a crime but

because he was concerned for their safety.

As to the fifth factor (the other evidence before the trier of fact), as will be discussed

below, the State had numerous pieces of evidence to suggest Fetters’ culpability other

than Sgt. Clifford’s statements.

In short, Fetters does not establish that his counsel likely would have succeeded

because the statements were not clearly impermissible opinion. Stated otherwise, these

1 We cite to the unpublished portion of this opinion because it is necessary to reasoned

opinion, as it was cited in Fetters’ brief.

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factors demonstrate that, under Vazquez, Sgt. Clifford’s statements were neither

“egregious” nor “central to” the State’s case. 198 Wn.2d at 248.

Moreover, even if Fetters had shown these statements constituted impermissible

opinion testimony, he has not shown prejudice, i.e., that there is a reasonable probability

that, had his counsel objected, the result of his trial would have been different.

There was ample other evidence before the jury to establish Fetters’ guilt, even

casting aside Sgt. Clifford’s testimony. Video evidence established that Fetters entered

through the back door and touched Ms. Califf’s purse. He told Sgt. Clifford that he did not

remember going through the back door and gave no explanation for these inculpatory

actions. Fetters also told Sgt. Clifford he “d[id]n’t know why” he picked the purse up, and

repeated the same at trial.

Contrary to a key reason he claimed he entered the house, E.C. testified, and

Fetters admitted at trial, that he did not ask for signature when he interacted with her

inside the house. Fetters further acknowledged that he did not need a signature because

of, he claimed, COVID-related delivery policies. The jury also heard from UPS

management and security, who testified that the package did not require a signature.

UPS employees further testified that an item at a price as low as the package Fetters was

delivering would never require a signature, and that UPS drivers never need to enter

homes when making a delivery.

Based on this evidence, there is not a reasonable probability that the jury would

have acquitted Fetters had his counsel objected, even assuming Sgt. Clifford’s

statements did improperly express his opinion about Fetters’ veracity or guilt.

2. For Failing to Assert the Privilege of, and Propose an Instruction relating to,

Private Necessity

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Fetters next claims his counsel was ineffective because he did not argue Fetters

had a privilege to enter the Califfs’ home and did not propose a jury instruction explaining

his entry was privileged. Specifically, Fetters asserts that his trial counsel “did not know”

that, according to the common law of torts, an uninvited entry is “privileged” and thus not

unlawful, if the entry was to aid an injured or endangered person inside. Because counsel

did not know this legal maxim, allegedly, was the law in Washington, he never contested

Fetters’ “unlawful entry” or proposed a privilege instruction, acting deficiently. We

disagree.

Fetters cites no Washington law that applies this common law privilege, and the

only out-of-state cases he cites for the privilege concern the actions of police officers.

(Citing People v. Roberts, 47 Cal.2d 374, 303 P.2d 721 (1956)); (citing People v. Ray, 21

Cal.4th 464, 468, 981 P.2d 928 (1999)); (citing State v. Bridewell, 306 Or. 231, 253, 759

P.2d 1054 (1988) (Petersen, C.J., concurring and dissenting)). Indeed, Fetters concedes,

“no Washington court has considered this particular privilege to enter a home,” and further

conceded at oral argument that he is not aware of any Washington court that has ever

applied the common law privilege of private necessity to criminal conduct similar to the

charges here. Wash Ct. of Appeals oral argument, State of Washington v. Aiden Fetters,

No. 86840-3-I (November 6, 2024), at 1 min., 45 sec. through 1 min., 56 sec. video

recording by TVW, Washington State’s Public Affairs Network,

https://tvw.org/video/division-1-court-of-appeals-2024111124/?eventID=2024111124.

Instead, Fetters relies on a case which does not actually cite to that common law privilege,

and whose holding addressed a child’s privilege to enter their own parents’ home, which

is clearly inapposite. (Citing State v. Steinbach, 101 Wn.2d 460, 462, 679 P.2d 369

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(1984)). Effectively, therefore, his request is that this court apply the common law

privilege in this type of case for the first time. We decline the invitation to do so. 2

Finally, this court has repeatedly held that the failure to raise a novel legal theory

does not constitute deficient performance. State v. Sanchez, 29 Wn. App. 2d 382, 390,

546 P.3d 436 (2024), review denied, 3 Wn.3d 1007, 551 P.3d 438 (2024).

Therefore, Fetters sixth assignment of error fails.

C. Jury instruction on the Permissive Inference of Criminal Intent

Fetters argues that the trial court violated his constitutional rights when it gave jury

instruction 11, which informed the jurors that they may infer intent to commit a crime inside

the residence solely from Fetters’ unlawful entry or presence in the house. Specifically,

and consistent with RCW 9A.52.040, instruction 11 reads:

A person who enters or remains unlawfully in a building may be inferred to

have acted with the intent to commit a crime against a person or property

therein. This inference is not binding upon you, and it is for you to determine

what weight, if any, such inference is to be given.

He claims this instruction violated his due process rights and his right to a trial by jury

because the instruction constitutes a comment by the court on the evidence. We address

each in turn.

1. Due Process

Relying on State v. Cantu, 156 Wn.2d 819, 826, 132 P.3d 725 (2006), and State

v. Brunson, 128 Wn.2d 98, 107, 905 P.2d 346 (1995), Fetters rightly states that, “when

2 Moreover, at oral argument, Fetters acknowledged he would have exceeded the scope

of such a privilege to enter if the jury found his actions demonstrated a criminal intent to

remain unlawfully, and he conceded there was sufficient evidence for such a finding in

the State’s case, e.g., from the fact that he did not explain touching Ms. Clifford’s purse.

Wash. Ct. of Appeals oral argument, supra at 2 min., 27 sec. through 4 min., 16 sec.

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permissive inferences are only part of the State’s proof supporting an element and not

the ‘sole and sufficient’ proof of such element, due process is not offended if the

prosecution shows that the inference more likely than not flows from the proven fact.” He

argues that instruction 11 was unconstitutional because, “given the circumstances of the

defendant’s entry,” the predicate facts underlying his “unlawful entry” did not make it more

likely than not that Fetters entered with intent to commit a crime. We disagree with this

characterization of the evidence, as it is incomplete. The State did not establish mere

unlawful entry.

As reviewed above, the home surveillance video showed Fetters entering the front

door only after going to the rear of the house, peering inside, entering, and leaving. The

video also showed him moving slowly through the house and picking up Ms. Califf’s purse.

As also reviewed above, Sgt. Clifford’s testimony indicated such conduct correlates with

a person investigating an opportunity to commit a property crime. In short, the State

presented evidence to permit a jury to infer, from these proven facts, that Fetters

possessed a criminal intent.

In response, Fetters argues that, even if there was some evidence in support of

the State’s case, his due process rights were violated because the evidence of his intent

was not a matter of “logical probability” but “patently equivocal.” (Citing State v. Bergeron,

105 Wn.2d 1, 20, 711 P.2d 1000 (1985)). Fetters contends that the only evidence proven

and before the jury was that a delivery person with a package to deliver—in a rural

neighborhood, where police could not arrive quickly—saw an open door and entered it

around 9:30 p.m. after announcing himself as a UPS driver. In support, Fetters primarily

relies on State v. Woods, 63 Wn. App. 588, 590, 821 P.2d 1235 (1991), and State v.

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Jackson, 112 Wn.2d 867, 774 P.2d 1211 (1989). Both are distinguishable.

In Woods, the State charged two boys with burglary after one of the boys had

kicked in the door to his mother’s house. 63 Wn. App. at 590. This court held there was

insufficient proof the boys intended to commit a crime inside, noting that, not only was

nothing taken, but that one of the boys testified that they entered so his friend could

retrieve his jacket because it was raining outside, and that the boys’ flight could equally

mean that they were afraid of the mother’s anger at the damage to the door or that they

intended to commit a crime. Id. at 591-92. These facts were undisputed and, thus, the

evidence of intent was equivocal. Id.

In Jackson, the State had only pled and proven attempted burglary and had shown

that the defendant threw a rock through a window and had admitted in a statement that

he had intended to enter. 112 Wn.2d at 876. Our Supreme Court held that, to infer

criminal intent in a burglary case, “there must be evidence of entering or remaining

unlawfully in a building,” such that the instruction could not be given if there is no evidence

which placed the defendant inside a building. Id. The Court concluded that the inference

was improperly given, not only because two different interpretations could follow from the

evidence, but also because two distinct crimes could have as well. Id.

In contrast to Woods, there was no evidence that Fetters had the even arguable

right to enter the Califfs’ home, no explanation of why he entered through the back door,

and no explanation why he touched Ms. Califf’s purse once he entered. In contrast to

Jackson, it is undisputed that Fetters entered the Califfs’ home and Fetters does not claim

the evidence equally suggested more than one possible crime. In contrast to both cases,

the jury could have inferred criminal intent either from the facts surrounding his various

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entries into, or hia conduct while remaining in, the home, including his slowly walking

around the house and, again, picking up Ms. Califf’s purse.

In short, the State presented sufficient evidence, under Bergeron, that his entry

into the home was, as a matter of “logical probability,” for the purpose of committing a

crime and, thus, did not violate his right to due process. 105 Wn.2d at 20.

2. Unconstitutional Comment on the Evidence

We held in State v. Alexander, 7 Wn. App. 329, 335, 499 P.2d 263 (1972), that

“instructions should not be so factually detailed as to emphasize certain aspects of a

party’s case and thus point up or buttress his argument to the jury.” (Emphasis added.)

Fetters asserts that instruction 11 unconstitutionally commented on the evidence because

it highlighted the inference of intent as a particular permissible inference, among all other

possible inferences the jury was generally permitted to draw from circumstantial evidence.

We disagree.

Alexander is inapposite. There, this court considered an instruction that was so

factually detailed that it would risk skewing a jury’s understanding of a case. 7 Wn. App.

at 335. Here, the instruction contained no factual details of the case. Rather, it simply

reflected the language of a statute which specifically allows a jury to infer intent element

in any burglary case. RCW 9A.52.040.

It is certainty correct that a trial court’s “remark that has the potential effect of

suggesting that the jury need not consider an element of an offense could qualify as

judicial comment.” State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006). But,

instruction 11 contained only permissive language reflecting the inference that is

authorized by RCW 9A.52.040.

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We thus reject Fetters’ argument that instruction 11 unconstitutionally commented

on the evidence. 3

D. ER 404(b) and Common Scheme or Plan

ER 404(b) prohibits admitting evidence “of other crimes, wrongs, or acts” to prove

a defendant has a criminal propensity. Such evidence “may, however, be admissible for

other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.” State v. DeVincentis, 150 Wn.2d 11, 17, 74

P.3d 119 (2003) (quoting ER 404(b)).

A court may admit other prior acts to show a “common scheme or plan” where the

prior acts provide “evidence of a single plan used repeatedly to commit separate but very

similar crimes.” Id. at 19 (citing State v. Lough, 125 Wn.2d 847, 856, 889 P.2d 487

(1995)). The prior acts and charged crimes must be “markedly similar acts of misconduct

against similar victims under similar circumstances”—circumstances which “are naturally

to be explained as caused by a general plan of which they are the individual

manifestations.” Lough, 125 Wn.2d at 856. Such evidence may be “offered to show that

the defendant has developed a plan and has again put that particular plan into action.”

State v. Gresham, 173 Wn.2d 405, 422, 269 P.3d 207 (2012). “Factors relevant to

similarity include geographical proximity and commission of the crimes within a short time

frame.” State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002). 4

3 We need not reach Fetters related argument that, if we agree instruction 11 was given

in error, there is insufficient evidence to support his conviction.

4 For evidence of prior misconduct to be admissible under ER 404(b), “the trial court must

(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the

purpose for which the evidence is sought to be introduced, (3) determine whether the

evidence is relevant to prove an element of the crime charged, and (4) weigh the probative

value against the prejudicial effect.” Thang, 145 Wn.2d at 642. Fetters addresses none

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No. 86840-3-I/19

“A trial court’s decision to admit evidence of prior bad acts is reviewed for abuse

of discretion.” State v. Denham, 197 Wn.2d 759, 771, 489 P.3d 1138 (2021). “Discretion

is abused when the trial court’s decision is manifestly unreasonable, or is exercised on

untenable grounds, or for untenable reasons.” State v. Blackwell, 120 Wn.2d 822, 830,

845 P.2d 1017 (1993).

Fetters argues that the trial court erred by admitting, under Rule 404(b)’s common

scheme or plan exception, evidence of Fetters’ prior conduct. The court permitted

residents of another house to testify that, in delivering a package earlier the same day,

he engaged in behavior similar to that at the Califfs’; namely, that he went around to the

back door rather than the front door and that he claimed to need a signature for a package

that did not require one. They also testified that he made a loud noise by dropping the

package outside the door, that he touched the door, and that he peered through the

window, before leaving after he made eye contact with a resident inside.

Fetters argues “[n]o reasonable trial court could conclude that there were ‘marked

similarities’” between his conduct there and his conduct at the Califf house. Fetters

contends there were solely two allegedly probative similarities between his conduct during

the charged incident and the earlier delivery: (1) Fetters looked through a glass window

or door into a home, and (2) nothing was taken from either home. Because the similarities

were so minimal, Fetters argues, the judge could not reasonably have found evidence of

a common scheme or plan “to steal property from these houses.”

Fetters’ representation of the evidence is incomplete and unavailing. During both

deliveries, Fetters inexplicably walked around the back of the house and made noise

of these elements.

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No. 86840-3-I/20

outside the house to announce himself. It is not manifestly unreasonable for a court to

conclude that Fetters was checking to see whether anyone was home before entering,

which is evidence probative to a burglary charge. Further, under Thang, the two

occurrences took places hours apart on the same day, along the same delivery route—

showing both geographical proximity and commission within a short time frame. 145

Wn.2d at 643. Moreover, Fetters’ repeated assertion that nothing was taken from either

home is irrelevant because the crime of burglary does not require successfully stealing

property.

For these reasons, the court did not abuse its discretion in finding a “markedly

similar” pattern of conduct—one that suggests, under Lough, that Fetters had a plan used

repeatedly to commit separate, similar crimes. 125 Wn.2d at 856. 5

III. CONCLUSION

We affirm.

WE CONCUR:

5 We need not address Fetters’ claim of cumulative error as we have identified no

reversible error.

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