“It was improper for the prosecutor to insist a juror should ‘feel right’ and have a decision ‘make sense’ in the heart and in the gut when reaching a verdict.”
How later courts described this case
- “It was improper for the prosecutor to insist a juror should ‘feel right’ and have a decision ‘make sense’ in the heart and in the gut when reaching a verdict.”
- concluding that the prosecutor’s asking the jury multiple times to imagine what the victim was thinking and feeling in the hours leading up to her death constituted improper appeal to jury’s emotions
- stating that a “defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it.”
- holding that prosecutor’s statements were improper because “[t]hat the [victims] would never have expected the crime to occur was not relevant to [the defendant’s] guilt, nor were the prosecutor’s assertions about the [victims’] future plans”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 84986-7-I
v.
UNPUBLISHED OPINION
DERRICK STEPHEN FESINMEYER,
Appellant.
DWYER, J. — Derrick Fesinmeyer appeals from the judgment and
sentence entered on the jury’s verdicts convicting him of one count of burglary in
the first degree, one count of felony violation of a no-contact order, and one
count of assault in the fourth degree. Fesinmeyer asserts that the trial court
erred by denying his request to bifurcate the trial proceedings as to his prior
convictions for violating a no-contact order and that he was denied the right to a
fair trial due to prosecutorial misconduct during closing arguments. Finding no
error as to those assertions, we affirm the judgment entered on the jury’s
verdicts.
Fesinmeyer also asserts that the sentencing court erred by imposing upon
him a victim penalty assessment despite his indigency. The State concedes
error in this regard. Accordingly, we affirm in part and reverse in part, remanding
No. 84986-7-I/2
this matter to the sentencing court to strike the victim penalty assessment from
Fesinmeyer’s sentence.
I
For at least one year prior to the events in question, Fesinmeyer and Bodil
Omnell were in a romantic relationship with one another. They shared a
residence in Marysville.
In early July 2018, the Marysville Municipal Court entered a no-contact
order on Omnell’s behalf, prohibiting Fesinmeyer from assaulting her, having
contact with her, or coming within 1,000 feet of her residence. Inscribed at the
bottom of the order was a proviso stating that the “parties may exchange text
messages on topic of 1) choosing new residence, 2) moving out. No other
discussion allowed.”
One week later, a neighbor heard a female voice screaming for help from
within the Marysville residence that Fesinmeyer and Omnell had previously
shared. The neighbor dialed 911. Police officers were dispatched to the
residence, including Officer David Adams, who interviewed and observed Omnell
within the residence, observed Fesinmeyer walking away from the residence,
and later interviewed Fesinmeyer. Officer Adams took several photographs of
visible scratch marks and redness on Omnell’s hand, arms, cheek, and chest.
The State, by third amended information, charged Fesinmeyer with
burglary in the first degree, felony violation of a no-contact order, and assault in
the fourth degree. The State’s felony no-contact order violation charge was
2
No. 84986-7-I/3
predicated on Fesinmeyer’s alleged assault of Omnell and, in the alternative, on
his two prior convictions for violating a no-contact order.
Prior to trial, Fesinmeyer moved to bifurcate the portion of the State’s case
regarding his prior no-contact order violation convictions. Fesinmeyer requested
that such evidence be presented to the jury only if the jury were to first find that
each of the other essential elements of the felony no-contact order violation
offense had been proved. The State objected, offering as an alternative that the
court (1) provide a jury instruction indicating that, in order to convict Fesinmeyer
of the charged no-contact order offense, the jury could rely on either the assault
element or the prior convictions element and (2) provide the jury with a special
verdict form on which the jury could specify its findings as to those alternatives.
The court agreed with the State and denied Fesinmeyer’s request.
On the day the trial was set to commence, before the jury was sworn in,
the State sought permission to admit as exhibits redacted copies of certain
Marysville Municipal Court docket entries delineating that, in April 2013, the
municipal court had, on two separate occasions, entered both findings and
judgments convicting Fesinmeyer of one count of violating a “no
contact/protection order.” These redacted docket entries did not provide
additional information concerning the underlying facts of those violations or of the
no-contact orders that Fesinmeyer had violated. The court granted the request.
A two-day jury trial later commenced. In its opening statement, the State
told the jury that the evidence would demonstrate that Fesinmeyer entered
Omnell’s residence in Marysville, started a verbal argument with her, and then
3
No. 84986-7-I/4
struck her, leaving her bruised and scratched, before he exited the residence.
The State indicated that its evidence would include the testimony of the neighbor
who called 911, an audio recording of that 911 call, Officer Adams’ testimony, the
July 2018 no-contact order signed by Fesinmeyer and Omnell, and photographs
of Omnell’s injuries taken by Officer Adams. During Fesinmeyer’s opening
statement, his counsel told the jury that the evidence would reflect that the
residence in question was, in actuality, Fesinmeyer’s residence, that he entered
that residence only to collect his belongings, that he did not expect Omnell to be
there, and that, as he was trying to leave, Omnell aggressively confronted him,
requiring Fesinmeyer to defend himself.
The State opened its case in chief by calling to testify the neighbor who
had dialed 911. The neighbor testified that she lived in Marysville, across the
street from a residence in which she had observed Fesinmeyer and Omnell living
for over one year prior to the events in question. She testified that, on the date in
question, she was awakened when her children alerted her to sounds coming
from the residence in question and that she could hear a man and a woman
screaming from within. She testified that she went outside to her driveway, heard
Omnell screaming for help, and saw Omnell, who looked frantic, scared, and
crying. She testified that she dialed 911 as soon as she heard the yelling and
screaming. The State moved to publish an audio recording of her 911 call, which
was then played for the jury.
The State next called Officer Adams to testify. He testified that he was
dispatched to the Marysville residence in response to the 911 call and that he
4
No. 84986-7-I/5
observed Fesinmeyer walking away from the residence and entering a nearby
vehicle. He testified that he observed Omnell within the residence, in what
appeared to be a living room, and that she was “clearly in distress,” “on the floor
hyperventilating, crying, just right there on the floor.” He testified that he
observed that her shirt appeared ripped and that she had scratch marks and
redness on her arms, one of her hands and cheeks, and her chest. He testified
that he used a camera to take photographs of those injuries as part of his
investigation. The State offered to admit several of the photographs as exhibits.
The court granted the request.
Officer Adams testified that he had interviewed Fesinmeyer, that
Fesinmeyer had told him that he had entered the residence to collect his
belongings, that he did not know that Omnell would be there, and that, in
responding to the officer’s question about whether Omnell lived there,
Fesinmeyer stated that she did. Officer Adams also testified that Fesinmeyer
told him that he had pushed past Omnell on his way out of the residence, that he
had not touched her, and, with regard to Omnell’s marks and injuries, that Omnell
must have inflicted them upon herself.
Officer Adams also testified that he did not recall observing that
Fesinmeyer had any obvious injuries.
The State rested its case. Fesinmeyer did not call any witnesses. The
court thereafter provided instructions to the jury as to each of the charged
offenses.
5
No. 84986-7-I/6
During closing argument, the State argued, in pertinent part, that
Fesinmeyer knew that Omnell lived at the Marysville residence, that he entered
the residence and remained there with the intent to both violate the no-contact
order and assault her, and that the circumstantial evidence in the case—Officer
Adam’s observations of Fesinmeyer’s emotional state, his photographs of her
injuries, the 911 call audio, and the neighbor’s testimony—all supported that
Fesinmeyer assaulted Omnell.
Fesinmeyer’s counsel argued, in pertinent part, that the State failed to
prove that Fesinmeyer intended to violate the no-contact order because he was
merely collecting his belongings from his own residence and did not expect
Omnell to be there. Fesinmeyer’s counsel further argued that no direct evidence
supported that Fesinmeyer caused the injuries in question and that, even if he
did make physical contact with her, he had a right to stand his ground by pushing
her away when she did not let him leave the residence. Fesinmeyer’s counsel
also argued that, although there was evidence that Omnell was upset, “the reality
is we don’t know why she was upset. You have an absolute void of information
when it comes to what happened in that house.”
In rebuttal, the prosecutor argued that the circumstantial evidence in
question constituted good evidence in support of the State’s case that
Fesinmeyer had assaulted Omnell. The prosecutor then suggested that the jury
“imagine how [the alleged victim] must have been feeling while she’s being hit.”
Fesinmeyer’s counsel objected. The court told the prosecutor to “[m]ove on,
counsel.” The prosecutor then proceeded to argue that the testimony regarding
6
No. 84986-7-I/7
Omnell’s emotional state at the time was evidence in support of the proposition
that Fesinmeyer had just assaulted her.
The jury, in addition to receiving verdict forms relating to each of the
charged offenses, was provided with a special verdict form concerning the
charged no-contact order violation offense, which asked the jurors if they were
unanimous as to (1) whether Fesinmeyer committed an assault in violation of the
no-contact order and (2) whether he had been twice convicted for violating a no-
contact order. The jury returned verdicts convicting Fesinmeyer as charged,
including a response of “yes” as to whether Fesinmeyer had assaulted Omnell in
violation of a no-contact order and a response of “yes” as to whether Fesinmeyer
had two prior convictions for violation of a court order.
Fesinmeyer now appeals.
II
Fesinmeyer asserts that the superior court abused its discretion by
denying his request to bifurcate the trial because the evidence of his prior
convictions for violating a no-contact order was unfairly prejudicial to his case.
Because bifurcations are disfavored and not constitutionally required, because
establishment of Fesinmeyer’s prior convictions was an element of the felony no-
contact order violation offense elected to be proved by the State, and because
the record supports that the admission of such evidence at trial did not result in
unfair prejudice to Fesinmeyer, his assertion fails.
7
No. 84986-7-I/8
A
We review a trial court’s decision on bifurcation for an abuse of discretion.
State v. Roswell, 165 Wn.2d 186, 192, 196 P.3d 705 (2008) (citing State v.
Monschke, 133 Wn. App. 313, 335, 135 P.3d 966 (2006); State v. Jeppesen, 55
Wn. App. 231, 236, 776 P.2d 1372 (1989)). A trial court abuses its discretion
only when its decision is manifestly unreasonable, is based on untenable
grounds, or constitutes a ruling that no reasonable judge would make.
Monschke, 133 Wn. App. at 335 (citing State v. Stenson, 132 Wn.2d 668, 701,
940 P.2d 1239 (1997)); State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159
(2002) (citing State v. Nelson, 108 Wn.2d 491, 504-05, 740 P.2d 835 (1987)).
B
Bifurcated trials “‘are not favored.’” Monschke, 133 Wn. App. at 335
(quoting State v. Kelley, 64 Wn. App. 755, 762, 828 P.2d 1106 (1992)). “[T]he
trial court has broad discretion to control the order and manner of trial
proceedings.” Monschke, 133 Wn. App. at 334-35 (citing ER 611; State v.
Johnson, 77 Wn.2d 423, 426, 462 P.2d 933 (1969)). As our Supreme Court has
recognized,
[w]e have specifically held that such bifurcation is constitutionally
permissible but not required. State v. Mills, 154 Wn.2d 1, 10 n.6,
109 P.3d 415 (2005). And we certainly did not suggest that
defendants have a right to waive their right to a trial by jury on
certain elements so as to prevent the jury from hearing prejudicial
evidence. Courts have long held that when a prior conviction is an
element of the crime charged, it is not error to allow the jury to hear
evidence on that issue. Pettus v. Cranor, 41 Wn.2d 567, 568, 250
P.2d 542 (1952) (citing State v. Tully, 198 Wash. 605, 89 P.2d 517
(1939)).
8
No. 84986-7-I/9
Roswell, 165 Wn.2d at 197.1
However, the court in Roswell cautioned that it may be highly prejudicial “if
an element of the crime is a prior conviction of the very same type of crime,”
because “there is a particular danger that a jury may believe that the defendant
has some propensity to commit that type of crime.” 165 Wn.2d at 198.
Nevertheless, the court explained, “[i]f a prior conviction is an element of the
crime charged, evidence of its existence will never be irrelevant. One can always
argue that evidence that tends to prove any element of a crime will have some
prejudicial impact on the defendant.” Roswell, 165 Wn.2d at 198. Furthermore,
the court instructed, any unfair “prejudice created by evidence of the prior
conviction may be countered with a limiting instruction from the trial court.”
Roswell, 165 Wn.2d at 198 (citing Spencer v. Texas, 385 U.S. 554, 561, 87 S.
Ct. 648 17 L. Ed. 2d 606 (1967)). Accordingly, the court provided that, in
considering a request to bifurcate, “trial courts may exercise their sound
discretion to reduce unnecessary prejudice where practical.” Roswell, 165
Wn.2d at 198.
Fesinmeyer contends that the trial court erred by denying his request to
bifurcate the trial because the admission of his prior convictions for violating a
no-contact order, offered to prove an element of the State’s charged no-contact
order violation offense, resulted in unfair prejudice to him. In addressing
1 Indeed, the court continued, “[t]he United States Supreme Court in reviewing Texas’
habitual offender statutes held that it was not unconstitutional to enact such statutes and to
present evidence at trial that tends to prove the existence of a prior conviction.” Roswell, 165
Wn.2d at 197-98 (citing Spencer v. Texas, 385 U.S. 554, 565-66, 87 S. Ct. 648, 17 L. Ed. 2d 606
(1967)).
9
No. 84986-7-I/10
Fesinmeyer’s contention, our Supreme Court’s decision in State v. Taylor, 193
Wn.2d 691, 444 P.3d 1194 (2019), is instructive.
In Taylor, the defendant was charged with a felony violation of a no-
contact order and sought to stipulate to certain elements of the State’s charged
no-contact order violation offense, rather than have the no-contact order itself
admitted into evidence.2 193 Wn.2d at 696. The trial court denied the
defendant’s request and admitted the no-contact order in question. Taylor, 193
Wn.2d at 696. On appeal, our Supreme Court addressed whether the trial court
erred by denying Taylor’s offer to so stipulate and whether the trial court’s
admission of such evidence unfairly prejudiced Taylor’s case. In so doing, our
Supreme Court considered whether it was appropriate to extend the ruling
announced in Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L.
Ed. 2d 574 (1997), concerning felony status stipulations, to the matter before it.
Taylor, 193 Wn.2d at 696-99. Our Supreme Court noted that
[i]n Old Chief, the defendant was charged with violating a federal
statute that prohibited possession of a firearm by anyone with a
prior felony conviction.[3] Id. at 174. Prior to trial, the defendant
offered to stipulate that he had been convicted of a qualifying
felony. Id. at 175. The defendant “argued that the offer to stipulate
to the fact of the prior conviction rendered evidence of the name
and nature of the offense inadmissible under Rule 403 of the
Federal Rules of Evidence, the danger being that unfair prejudice
from that evidence would substantially outweigh its probative
value.” Id. The prosecution refused to join in the stipulation,
seeking to admit the order of judgment for the defendant’s prior
conviction into evidence. Id. at 177. The trial court admitted the
order of judgment, and the jury returned a guilty verdict. Id.
2 In Taylor, the State’s charged felony no-contact order violation offense was predicated
on Taylor’s alleged assault of the victim therein. 193 Wn.2d at 694-95.
3 Old Chief’s prior felony conviction was for “assault causing serious bodily injury.” Old
Chief, 519 U.S. at 175.
10
No. 84986-7-I/11
The Supreme Court reversed the defendant’s conviction,
holding that a trial court abuses its discretion under Federal Rule of
Evidence 403 when it rejects a defendant’s offer to stipulate to the
fact of a prior felony conviction to prove his or her felon status in a
felon-in-possession prosecution. Id. at 174. Significantly, the Court
was careful to limit its holding to “cases involving proof of felon
status.” Id. at 183 n.7. The Court reasoned that the trial court’s
decision to reject the defendant’s offer to stipulate and admit the
order of judgment amounted to an abuse of discretion because the
danger of unfair prejudice substantially outweighed the order of
judgment’s probative value. Id. at 191.
The Court noted that the prosecution is generally entitled to
prove its case by evidence of its own choice in order to present its
case with full evidentiary force. Id. at 186-87. However, the Court
determined that this general rule has “virtually no application when
the point at issue is a defendant’s legal status, dependent on some
judgment rendered wholly independently of the concrete events of
later criminal behavior charged against him.” Id. at 190. The Court
reasoned that the prosecution was required to prove only that the
defendant’s prior conviction fell within a broad category of qualifying
felonies. Id. at 190-91. As a result, there was no appreciable
difference in the evidentiary value of a stipulation to a qualifying
felony and admission of the official record of that felony. Id. at 191.
Moreover, the Court highlighted that “proof of the defendant’s
[felon] status goes to an element entirely outside the natural
sequence of what the defendant is charged with thinking and doing
to commit the current offense.” Id.
Taylor, 193 Wn.2d at 697-99.
Our Supreme Court concluded that the rationale in Old Chief “is
distinguishable from the admission of domestic violence no-contact orders.”
Taylor, 193 Wn.2d at 700. That was so, the court concluded, because “a no-
contact order is closely related to a felony violation of a no-contact order charge,
and the probative value of introducing that no-contact order into evidence is
greater than the probative value of showing a general felony conviction in Old
Chief.” Taylor, 193 Wn.2d at 700-01. The court further concluded that, although
the probative value of a State’s offer to prove a felony conviction by evidence of a
11
No. 84986-7-I/12
judgment entry and that of a defendant’s offer to stipulate to such a conviction is
equivalent,
the same cannot be said here. To prove Taylor’s felony violation of
a no-contact order charge, the State was required to prove that
there was a no-contact order in place that applied to Taylor, as well
as that he knew of the order, violated a provision of the order, and
committed an assault. See RCW 26.50.110(1), (4). Taylor offered
to stipulate that a no-contact order was in place and that he knew of
the order, but his offered stipulation was insufficient in comparison
to the no-contact order itself. By introducing the no-contact order,
the State was able to show that a valid no-contact order was in
place and the specific restrictions of the order Taylor violated.
Excluding the no-contact order from evidence would allow Taylor to
circumvent the full evidentiary force of the State’s case. See Old
Chief, 519 U.S. at 186-87 (stating that a “defendant may not
stipulate or admit his way out of the full evidentiary force of the
case as the Government chooses to present it.”).
Taylor, 193 Wn.2d at 701-02. The court also noted that “a trial court may redact
any portion of a no-contact order that poses a risk of unfair prejudice.” Taylor,
193 Wn.2d at 702 (citing State v. Roberts, 142 Wn.2d 471, 492-94, 14 P.3d 713
(2000)).
Accordingly, the court concluded that
Taylor’s domestic violence no-contact order was admissible
under ER 403 because the probative value of the no-contact order
far outweighed any danger of unfair prejudice. The no-contact
order had significant probative value as to Taylor’s felony violation
of a no-contact order charge. The no-contact order provided the
specific restrictions imposed on Taylor, was closely related to the
charged offense, and offered evidence of multiple elements of the
offense. In addition, there was nothing particularly inflammatory or
unfairly prejudicial about the no-contact order. The no-contact
order did not describe the nature of Taylor’s prior domestic violence
offense and was not more likely to stimulate an emotional, rather
than a rational, decision from the jury. As a result, admission of the
domestic violence no-contact order did not create a risk of unfair
prejudice to Taylor. Consequently, the State was not required to
accept Taylor’s offered stipulation, and the trial court’s decision to
12
No. 84986-7-I/13
admit the no-contact order into evidence under ER 403 was based
on tenable grounds.
Taylor, 193 Wn.2d at 702-03.
C
Here, the State charged Fesinmeyer with one count of felony violation of a
no-contact order predicated on Fesinmeyer’s alleged assault of Omnell or,
alternatively, on his two prior convictions for violating a no-contact order.
Accordingly, in order to prove all of the elements of the charged felony violation
of a no-contact order offense, the State was required to prove either that
Fesinmeyer had assaulted Omnell or that he had two prior convictions for
violating a no-contact order.
Prior to trial, Fesinmeyer moved to bifurcate the proceedings as to the
prior convictions element discussed above. He requested that such evidence be
presented and argued to the jury—and for the jury to be instructed as to the
State’s purpose for offering such evidence—only if the jury were to first find that
he had committed the other essential elements of that charged offense.
Fesinmeyer argued that, if the jury became aware of his prior convictions for
violating a no-contact order, it would necessarily create a risk of unfair prejudice
to him because the jury would view him as a person with a propensity to violate
no-contact orders.
The State objected to Fesinmeyer’s bifurcation request and offered, as an
alternative, that the court provide the jury with a limiting instruction and
13
No. 84986-7-I/14
corresponding special verdict form. The court agreed with the State and denied
Fesinmeyer’s motion.4
At trial, the court admitted into evidence copies of the Marysville Municipal
Court’s docket entries setting forth Fesinmeyer’s two April 2013 convictions for
violating a “no contact/protection order.” The docket entries did not provide
additional information concerning the underlying facts of those violations or of the
no-contact orders that Fesinmeyer had violated.
After both parties rested their cases in chief, the trial court, as pertinent
here, read the following instructions to the jury,
INSTRUCTION NO. 14
To convict the defendant of the crime of felony violation of a
court order, as charged in count two, each of the following elements
of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 13th day of July, 2018, there existed a no-
contact order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly violated a
provision of this order;
(4) (a) That the defendant’s conduct was an assault; or
(b) That the defendant has twice been previously convicted for
violating the provisions of a court order; and
(5) That the defendant’s act occurred in the State of Washington.
If you find from the evidence that elements (1), (2), (3)
and (5), and any of the alternative elements (4)(a) or (4)(b) have
been proved beyond a reasonable doubt, then it will be your duty to
return a verdict of guilty. To return a verdict of guilty, the jury need
not be unanimous as to which of alternatives (4)(a) or (4)(b) has
4 The court ruled as follows:
All right. In review of this, I’m going to deny the motion for the bifurcation at this
time. The -- all of the charges in this case stem from one particular instance. I
don’t think it is necessarily unduly prejudicial for the jury. I would accept the
proposal for purposes of a special verdict form if the parties agree on that, which
I think alleviates any potential for unfair prejudice in this matter. So I’m going to
deny that motion.
14
No. 84986-7-I/15
been proved beyond a reasonable doubt, as long as each juror
finds that at least one alternative has been proved beyond a
reasonable doubt.
On the other hand, if after weighing all of the evidence you
have a reasonable doubt as to any one of these elements, then it
will be your duty to return a verdict of not guilty.
....
INSTRUCTION NO. 17
Certain evidence has been admitted in this case for only a
limited purpose. Exhibits 33 and 34 may be considered by you only
for the purpose of determining whether the defendant has twice
previously been convicted of violating the provisions of a court
order. You may not consider it for any other purpose. Any
discussion of the evidence during your deliberations must be
consistent with this limitation.
....
INSTRUCTION NO. 19
Exhibits 29, 33, and 34 (Certified Copy of the No-Contact
Order and Certified Copy of Docket Entries) have been redacted.
You are not to concern yourself with any redactions that have been
made nor should the fact that the exhibit has been redacted be a
part of your discussion during deliberations in any way.
In closing argument, the State addressed the prior conviction evidence as
follows:
Now, the State also alleges that he had two prior convictions
for -- for no -- for the no contact order violations. You’ll receive in
evidence certified copies of something that’s called a docket entry,
and in those certified copies of those dockets, you’ll find that the
defendant was found guilty twice in two different cases for those
crimes. So that element is proven beyond a reasonable doubt.
The special verdict form provided to the jury reads as follows:
SPECIAL VERDICT FORM C
We, the jury, answer the question submitted by the court as follows:
QUESTION: Did the Defendant commit an assault in violation of the
no-contact order as stated in jury instruction 14 in paragraph (4)(a)?
ANSWER: _______(write “yes” or “no” or “not unanimous”)
15
No. 84986-7-I/16
QUESTION: Has the Defendant been twice convicted for violating
the provisions of a court order as stated in jury instruction 14 in
paragraph (4)(b)?
ANSWER: _______(write “yes” or “no” or “not unanimous”)
The danger of unfair prejudice to Fesinmeyer in admitting evidence of his
prior convictions for violating a no-contact order was properly accounted for by
the trial court. As recognized in Taylor, in determining whether the resulting
prejudice is unfair, the probative value of the evidence in question is an important
consideration. 193 Wn.2d at 702-03 (citing ER 403). Here, evidence of
Fesinmeyer’s prior convictions had significant probative value. Unlike the more
tangential relationship between Old Chief’s prior felony assault conviction and his
commission of the underlying unlawful possession of a firearm charge, evidence
of Fesinmyer’s prior convictions for violating a no-contact order was closely
related to the State’s charged no-contact order violation offense herein. See Old
Chief, 519 U.S. at 174-75, 191. Furthermore, such prior conviction evidence was
greatly probative because it offered direct proof of an element of one of the
State’s charged offenses. Taylor, 193 Wn.2d at 701; former RCW 26.50.110(5)
(2022). Indeed, as discussed herein, the State was required to present proof of
such prior convictions in order to prevail on one of its two alternative allegations
of the charged no-contact order violation offense.
Furthermore, the admission of evidence of Fesinmeyer’s prior convictions
for violating a no-contact order was not unfairly prejudicial to him. As set forth
above, although admission of certain evidence may prejudice a defendant, that
does not indicate that the resulting prejudice is unfair. See Roswell, 165 Wn.2d
16
No. 84986-7-I/17
at 198. Indeed, it is clear that evidence of Fesinmeyer’s prior no-contact order
violation convictions, offered to prove an element of the State’s charged no-
contact order violation offense, was inherently prejudicial to him. However, given
that our legislature has authorized the State to rely on the existence of such prior
convictions—alongside the other necessary proof—in prosecuting a defendant
for violating a no-contact order as a felony, rather than as a misdemeanor, we
cannot say that the prejudice resulting from such proof is, by itself, unfair.5 See
RCW 7.105.450(5); former RCW 26.50.110(5); see also Spencer, 385 U.S. at
565-66.
Additionally, the record does not reflect that the State’s presentation or
argument regarding the evidence of Fesinmeyer’s prior convictions was
inflammatory or otherwise emotionally provocative. Indeed, the exhibits
introduced by the State—the redacted municipal court docket entries indicating
that Fesinmeyer had been convicted of two no-contact order violations and the
date of such convictions—were tailored to the underlying prior convictions
element and did not identify additional details concerning the underlying no-
contact orders, including the manner in which Fesinmeyer violated those orders.
See Taylor, 193 Wn.2d at 702 (citing Roberts, 142 Wn.2d at 492-94). In addition,
during its closing argument, the State limited its discussion of such evidence to
only a few unembellished statements as to where the jury would locate such
5 Indeed, it follows that a “defendant may not stipulate or admit” or, as here, bifurcate “his
way out of the full evidentiary force of the case as the Government chooses to present it.” See
Old Chief, 519 U.S. at 186-87.
17
No. 84986-7-I/18
evidence and that such evidence supported the State’s allegation as to the
charged prior convictions element in question.
Furthermore, the trial court’s jury instructions and the special verdict jury
form further mitigated the danger of unfair prejudice to Fesinmeyer. Roswell, 165
Wn.2d at 198 (citing Spencer, 385 U.S. at 561). The trial court instructed the jury
that the evidence of Fesinmeyer’s prior convictions was admitted for a limited
purpose, that the evidence could only be considered for the purpose of the jury’s
consideration of the prior convictions element in question, and forbade the jurors
from both considering such evidence for any other purpose and discussing such
evidence in any other capacity during their deliberations. The court also provided
the jury with a special to-convict instruction that corresponded with those
instructions. Finally, the court also instructed the jury to disregard the existence
of redactions presented in the docket entries. These precautionary measures—
and the absence of an assertion by Fesinmeyer that the jury disregarded any of
the instructions with which they were provided—further minimized the risk of
unfair prejudice.
Given these circumstances, and given that we presume that the jury
follows the court’s instructions, State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d
514 (1994), the record does not reflect that the admission of evidence of
Fesinmeyer’s prior convictions was unfairly prejudicial to him. Thus, the trial
court did not abuse its discretion either by denying his request to bifurcate the
18
No. 84986-7-I/19
proceedings or in the manner by which the court oversaw the jury’s consideration
of such evidence. Accordingly, the trial court did not err.6
III
Fesinmeyer next asserts that reversal of his convictions is required
because the prosecutor engaged in prejudicial misconduct. This is so,
Fesinmeyer contends, because the prosecutor improperly appealed to the jurors’
emotions with regard to the alleged assault that was a predicate for several of the
offenses for which he was convicted. Although the prosecutor’s statement in
question was indeed improper, the record does not reflect that such statement
resulted in prejudice that had a substantial likelihood of affecting the jury’s
verdict. Accordingly, we disagree that appellate relief is required.
6 Even if the trial court erred by admitting such evidence—which it did not—Fesinmeyer
fails to show how any resulting error might have harmed him.
“Evidentiary error is grounds for reversal only if it results in prejudice.” State v.
Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001). “An error is prejudicial if, ‘within
reasonable probabilities, had the error not occurred, the outcome of the trial
would have been materially affected.’” Neal, 144 Wn.2d at 611 (quoting State v.
Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).
In re Det. of Post, 145 Wn. App. 728, 748, 187 P.3d 803 (2008), aff’d, 170 Wn.2d 302, 241 P.3d
1234 (2010).
The record reflects that the evidence of Fesinmeyer’s prior convictions was offered to
prove one of two alternate elements in support of the State’s charged felony no-contact order
violation offense. The jury was instructed that, although they were required to be unanimous as
to whether an alternative element was proved, they need not be unanimous as to which
alternative element was proved. The jury’s resulting special verdict reflected that the jury was
unanimous as to the existence of each alternative element, finding beyond a reasonable doubt
both that Fesinmeyer had two prior convictions for violating a no-contact order and that he had
assaulted Omnell.
Given that, even if the trial court erred by admitting the evidence of his prior convictions,
the record reflects that the jury nonetheless would have convicted him of the charged felony no-
contact order violation offense in reliance on their unanimous finding that he had assaulted
Omnell. Fesinmeyer does not present citations to the record, argument, or analysis in support of
an assertion that there was a reasonable probability that the jury’s verdict as to the assault
charge would have changed if evidence of his prior convictions had not been admitted. Thus,
Fesinmeyer’s contentions are unavailing.
19
No. 84986-7-I/20
A
“The right to a fair trial is a fundamental liberty secured by the Sixth and
Fourteenth Amendments to the United States Constitution and article I, section
22 of the Washington State Constitution.” In re Pers. Restraint of Glasmann, 175
Wn.2d 696, 703, 286 P.3d 673 (2012) (citing Estelle v. Williams, 425 U .S. 501,
503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976); State v. Finch, 137 Wn.2d 792,
843, 975 P.2d 967 (1999)). “Prosecutorial misconduct may deprive a defendant
of his constitutional right to a fair trial.” Glasmann, 175 Wn.2d at 703-04 (citing
State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984)).
“In order to establish prosecutorial misconduct, a defendant must show
‘that the prosecutor’s conduct was both improper and prejudicial in the context of
the entire record and the circumstances at trial.’” State v. Magers, 164 Wn.2d
174, 191, 189 P.3d 126 (2008) (quoting State v. Hughes, 118 Wn. App. 713, 727,
77 P.3d 681 (2003)).
B
Fesinmeyer asserts that the prosecutor uttered a statement during rebuttal
closing argument that was improper and prejudicial. This is so, he asserts,
because the prosecutor asking the jury to imagine how the victim was feeling at
the time of the alleged assault constituted an invitation to the jury to decide the
case not on an evidentiary basis but, rather, on an emotional one. In that regard,
we agree.
In delivering closing argument, a prosecutor “has wide latitude to argue
reasonable inferences from the evidence.” State v. Thorgerson, 172 Wn.2d 438,
20
No. 84986-7-I/21
448, 258 P.3d 43 (2011) (emphasis added) (citing State v. Hoffman, 116 Wn.2d
51, 94-95, 804 P.2d 577 (1991)). However, it is a prosecutor’s duty to seek a
verdict based on reason. State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d
420 (1993). “A prosecutor may not properly invite the jury to decide any case
based on emotional appeals.” In re Det. of Gaff, 90 Wn. App. 834, 841, 954 P.2d
943 (1998).
Here, during rebuttal closing argument, the prosecutor sought to respond
to defense counsel’s argument that there was an absence of evidence
connecting Omnell’s emotional state with Fesinmeyer’s alleged assault and, in so
doing, stated the following:
[PROSECUTOR] Clearly [the alleged victim] wasn’t just
struck. There had to have been a struggle of some kind by Mr.
Fesinmeyer tearing her clothing. That’s good circumstantial
evidence that he was beating her not just in the face, not just in the
chest, not just in the arms, but he’s trying to get at her body as well.
She’s got marks all over, and he has no injuries. You heard that
from Officer Adams. He had nothing. That’s not pushing someone
out of the way. That’s committing an assault.
I just want you to imagine how [the alleged victim] must have
been feeling while she’s being hit.
[DEFENSE COUNSEL]: And objection. That’s clearly
impermissible.
THE COURT: Move on, counsel.
[PROSECUTOR]: You know how she was feeling, because
she was crying. She was on the floor, and she was
hyperventilating. You know how she was feeling, because she was
just assaulted.
Now I want to talk about Mr. Fesinmeyer’s statements. . . .
(Emphasis added.)
The prosecutor’s suggestion to the jurors that they should imagine how
the victim must have been feeling while she was being hit was improper. As an
21
No. 84986-7-I/22
initial matter, the State’s appellate briefing concedes that “[h]ow a juror would feel
in the victim’s situation is irrelevant.” Br. of Resp’t at 29. Indeed, such a
statement asking the jury to “imagine” a circumstance cannot be said to be an
inference reasonably drawn from the evidence. Rather, such a statement
improperly asks the jury to speculate on matters outside of the evidence
presented at trial.
Furthermore, such a statement cannot be understood as an appeal to the
jury’s reasoned intellectual application of the law to the facts but, rather, such a
statement constituted an improper appeal to the jury’s emotions. See, e.g.,
State v. Craven, 15 Wn. App. 2d 380, 389, 475 P.3d 1038 (2020) (“It was
improper for the prosecutor to insist a juror should ‘feel right’ and have a decision
‘make sense’ in the heart and in the gut when reaching a verdict.”); State v.
Whitaker, 6 Wn. App. 2d 1, 16, 429 P.3d 512 (2018) (concluding that the
prosecutor’s asking the jury multiple times to imagine what the victim was
thinking and feeling in the hours leading up to her death constituted improper
appeal to jury’s emotions), aff’d, 195 Wn.2d 333, 459 P.3d 1074 (2020); State v.
Pierce, 169 Wn. App. 533, 552, 280 P.3d 1158 (2012) (holding that prosecutor’s
statements were improper because “[t]hat the [victims] would never have
expected the crime to occur was not relevant to [the defendant’s] guilt, nor were
the prosecutor’s assertions about the [victims’] future plans”). Thus, the
prosecutor’s statement suggesting to the jurors that they should imagine how the
victim felt as she was being assaulted was improper.
22
No. 84986-7-I/23
C
Fesinmeyer next asserts that the prosecutor’s improper statement
prejudiced him. This is so, Fesinmeyer contends, because that comment related
to the State’s allegation that he had assaulted Omnell, and the State’s assault
allegation underlay several of the offenses for which he was convicted. Because
the context of the entire trial does not indicate a substantial likelihood that the
single improper statement by the prosecutor affected the jury’s verdicts,
Fesinmeyer’s assertion fails.
Once a defendant establishes that a prosecutor’s statement is improper,
we must determine whether the defendant was prejudiced by such misconduct.
State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). As applicable here,
to obtain appellate relief, when the defendant objected at trial, the defendant
must demonstrate that “the prosecutor’s misconduct resulted in prejudice that
had a substantial likelihood of affecting the jury’s verdict.” Emery, 174 Wn.2d at
760 (citing State v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009)).
When reviewing an assertion that prosecutorial misconduct requires
reversal, we review the statements in the context of the entire case. Thorgerson,
172 Wn.2d at 443 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747
(1994)). “The criterion always is, has such a feeling of prejudice been
engendered or located in the minds of the jury as to prevent a [defendant] from
having a fair trial?” Slattery v. City of Seattle, 169 Wash. 144, 148, 13 P.2d 464
(1932).
23
No. 84986-7-I/24
Here, as detailed above, the State presented to the jury the testimony of
Officer Adams and the neighbor who dialed 911, along with both the audio
recording of the 911 call and the photographs that Officer Adams took of
Omnell’s injuries shortly after he arrived at the residence in question. Prior to
closing arguments, an instruction that the court provided to the jury read, in
pertinent part, as follows:
INSTRUCTION NO. 1
It is your duty to decide the facts in this case based upon the
evidence presented to you during this trial. . . .
....
The lawyers’ remarks, statements, and arguments are
intended to help you understand the evidence and apply the law. It
is important, however, for you to remember that the lawyers’
statements are not evidence. The evidence is the testimony and
the exhibits. The law is contained in my instructions to you. You
must disregard any remark, statement, or argument that is not
supported by the evidence or the law in my instructions.
You may have heard objections made by the lawyers during
trial. Each party has the right to object to questions asked by
another lawyer, and may have a duty to do so. These objections
should not influence you. Do not make any assumptions or draw
any conclusions based on a lawyer’s objections.
Our state constitution prohibits a trial judge from making a
comment on the evidence. It would be improper for me to express,
by words or conduct, my personal opinion about the value of
testimony or other evidence. I have not intentionally done this. If it
appeared to you that I have indicated my personal opinion in any
way, either during trial or in giving these instructions, you must
disregard this entirely.
....
. . . You must not let your emotions overcome your rational
thought process. You must reach your decision based on the facts
proved to you and on the law given to you, not on sympathy,
prejudice, or personal preference. To assure that all parties receive
a fair trial, you must act impartially with an earnest desire to reach a
proper verdict.
24
No. 84986-7-I/25
As set forth above, during rebuttal closing argument, the prosecutor
improperly stated that “I just want you to imagine how [the alleged victim] must
have been feeling while she’s being hit.” In response, defense counsel objected,
the court told the prosecutor to “[m]ove on,” and the prosecutor immediately
proceeded to discuss how circumstantial evidence in the case regarding
Omnell’s emotional state supported the assault allegation and then proceeded to
address certain statements that Fesinmeyer made to Officer Adams.
The context of the entire case does not establish a substantial likelihood
that the prosecutor’s improper statement affected the jury’s verdict. Ample
evidence was adduced at trial as proof of Fesinmeyer’s alleged assault that the
jury could have otherwise relied on for their verdicts, including the neighbor’s
testimony regarding Omnell’s screams for help and her emotional state, the 911
call, the police officer’s testimony regarding Omnell’s emotional state, her visible
injuries, the absence of visible injuries on Fesinmeyer, and the near-
contemporaneous photographs of Omnell’s injuries.
Furthermore, the trial court instructed the jury to consider only the
evidence presented at trial, to disregard any statement by the court or the
lawyers that is not supported by the evidence or the law, and, notably, to decide
the case not on emotions but, rather, on their rational thought process. Again,
absent indications to the contrary, we presume that the jury followed the court’s
instructions. Johnson, 124 Wn.2d at 77.
As to the improper statement itself, the statement in question was brief. It
was not used as a central theme in closing argument. Rather, it was a single
25
No. 84986-7-I/26
sentence in rebuttal and, after the court indicated to the prosecutor to “[m]ove
on,” the prosecutor did so, immediately focusing on what the jury knew of the
assault from the circumstantial evidence of Omnell’s emotional state.
Furthermore, the trial court’s utterance to the prosecutor to “[m]ove on” did
not prejudice Fesinmeyer. Rather, the court’s utterances in response to defense
counsel’s other objections during the State’s closing argument suggest that the
court’s fourth such utterance constituted mild disapproval of the prosecutor’s
statement.7 For instance, Fesinmeyer’s counsel objected on four occasions
during the State’s closing argument and rebuttal argument. After three of these
objections, the court instructed the State to “continue your argument,” but in
response to the objection in question, the court instructed the prosecutor to
“[m]ove on.” The court’s use of the phrase “move on” rather than the word
“continue” suggests a heightened level of chastisement short of sustaining the
objection. Nevertheless, the trial court’s phrasing suggests that the court was
either issuing a neutral statement to the prosecutor to keep moving through his
argument or uttering its disapproval short of sustaining the objection, thereby
warning the prosecutor against continuing along such a line of argument. Given
that the prosecutor immediately moved on from that statement and given that the
court’s other statements to the prosecutor in response to defense counsel’s three
other objections were even more neutral, the record suggests that the court
7 The court’s utterance of “move on” does not appear to have constituted either an
express ruling on defense counsel’s objection or an instance of the court’s response adding
legitimacy to the prosecutor’s argument. Cf. Davenport, 100 Wn.2d 757.
26
No. 84986-7-I/27
intended its admonition to be perceived in the latter manner and that this was
understood by counsel.
We also note that defense counsel did not request that a curative
instruction be given to the jury in response to the prosecutor’s argument and the
court’s direction. Although not dispositive, this also tends to suggest that the
improper remark, in the context of the whole trial, did not appear to defense
counsel at the time to be so prejudicial as to warrant further admonition to the
jury.8
Accordingly, there does not appear to be a substantial likelihood that the
single improper statement by the prosecutor affected the jury’s verdict. Thus, the
prosecutor’s statement did not deny Fesinmeyer a fair trial. Hence, we find no
impropriety warranting reversal.
IV
Fesinmeyer has submitted a pro se statement of additional grounds
pursuant to RAP 10.10. None of these grounds for additional review entitle him
to appellate relief.
Fesinmeyer first asserts that the trial court abused its discretion by issuing
a ruling in response to Fesinmeyer’s CrR 3.5 motion without holding an additional
hearing on that motion. Fesinmeyer’s assertion fails. The court issued a written
ruling determining that, based on the undisputed testimony received at the first
hearing, it had sufficient evidence to issue a ruling on Fesinmeyer’s motion. The
8 Indeed, in two earlier instances at trial, defense counsel had, immediately after the court
had sustained her objections, requested a curative instruction from the court.
27
No. 84986-7-I/28
court denied Fesinmeyer’s motion, holding that his statements made to certain
police officers during the events in question were admissible. Fesinmeyer does
not challenge the trial court’s determination that additional evidence was not
necessary to issue a ruling on his CrR 3.5 motion. Fesinmeyer’s statement of
additional grounds also does not (even informally) assign specific error to any
portion of the court’s ruling. We will not consider a defendant’s statement of
additional grounds for review if it does not inform us of the nature and occurrence
of alleged errors. RAP 10.10(c).
Fesinmeyer next asserts that the trial court abused its discretion by
denying his request for a continuance in order to reappoint counsel.
Fesinmeyer’s assertion fails. Fesinmeyer elected to proceed pro se more than
three years earlier, in 2019, after a thorough colloquy with the superior court
concerning the risks associated with proceeding pro se, and he was provided
with stand-by counsel. His October 2022 request for a continuance was made
on the Friday before trial in his case was set to commence on the following
Monday. The trial court ensured that his long-appointed stand-by counsel would
be available to provide him assistance and denied his request as untimely. The
trial court did not abuse its discretion by so doing.9
9 The record reflects that, from the end of 2019 until the middle of October 2022—on the
eve of trial—Fesinmeyer had stand-by counsel available to him after he had elected to proceed
pro se. Furthermore, after the trial court denied his requests—on the eve of trial—for a trial
continuance and to reappoint counsel, his stand-by counsel indicated that she would be available
to continue in such a role during the upcoming trial. Three days later, on the day that trial was set
to commence, Fesinmeyer renewed his request to reappoint counsel in reliance on a health
condition that had previously not been disclosed to the court. The trial court granted his request,
appointed his stand-by counsel as his defense counsel, and, after ensuring that such counsel had
sufficient time to make her preparations, continued his trial start date to the end of the month. At
the resulting trial, Fesinmeyer was diligently and competently represented by his defense
counsel.
28
No. 84986-7-I/29
Fesinmeyer next contends that the State did not present sufficient
evidence to support his felony violation of a no-contact order conviction because,
according to Fesinmeyer, those prior convictions were predicated on defective
no-contact orders. However, Fesinmeyer does not provide us with evidence in
support of this argument. Again, we are not obligated to search the record in
support of claims made in a defendant’s statement of additional grounds for
review. RAP 10.10(c). Fesinmeyer’s assertion fails.
Fesinmeyer next contends that the State did not present sufficient
evidence to support his burglary conviction. Fesinmeyer’s claim fails. As set
forth above, the record contained ample circumstantial evidence that Fesinmeyer
entered and remained in the residence where Omnell was residing and that he
entered or remained therein with the intent to commit a crime against her.
Accordingly, none of Fesinmeyer’s additional grounds warrant appellate relief.10
V
Fesinmeyer next asserts that the sentencing court erred by imposing upon
him a victim penalty assessment despite his indigency. The State concedes
error in this regard. Because the sentencing court previously found the
defendant indigent, we accept the State’s concession. State v. Ellis, 27 Wn. App.
2d 1, 16, 530 P.3d 1048 (2023) (citing RCW 7.68.035(5)(b)). We remand this
10 On March 29, 2024 and April 5, 2024, Fesinmeyer’s counsel submitted to the court
handwritten documents prepared by the defendant himself to supplement his statement of
additional grounds.
To the extent that the documents assert facts not in the record, the assertions have been
ignored by the court, as such assertions are improper on direct appeal.
To the extent that the assertions contain legal arguments, the assertions have been
considered by the panel. None demonstrate an entitlement to appellate relief.
29
No. 84986-7-I/30
matter to the superior court to strike the victim penalty assessment from
Fesinmeyer’s sentence.
Affirmed in part, reversed in part, and remanded.
WE CONCUR:
30