State Of Washington, Respondent V. Brian Ogrady Fraley, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION TWO
STATE OF WASHINGTON,
Respondent,
v.
BRIAN O’GRADY FRALEY,
Appellant.
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No. 52841-0-II
UNPUBLISHED OPINION
SIDDOWAY, J.1 — Brian Fraley appeals his convictions for unlawful possession of
payment instruments and bail jumping. He raises a challenge to an elements instruction
and argues that prosecutorial misconduct during Mr. Fraley’s cross-examination deprived
him of a fair trial. We reject his contention that “knowing possession” is an element of
unlawful possession of payment instruments under RCW 9A.56.320(2)(a). He fails to
demonstrate that the prosecutor’s cross-examination, to which no objection was made,
was so flagrant and ill-intentioned that no curative instruction could have neutralized the
resulting prejudice. For those reasons, and because Mr. Fraley raises no meritorious
issues in his statement of additional grounds, we affirm.
1 The Honorable Laurel Siddoway is a Court of Appeals, Division Three, judge
sitting in Division Two under CAR 21(a).
Filed
Washington State
Court of Appeals
Division Two
August 18, 2020

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FACTS AND PROCEDURAL BACKGROUND
In the summer of 2017, Gary Chamberlain was living on state retirement and
Social Security at his home in Tumwater with Rebecca Matthews, a “friend of a friend”
who needed a place to stay. Report of Proceedings (RP) at 34. Sometime in or around
late July 2017, Brian Fraley appeared at Mr. Chamberlain’s home in a new recreational
vehicle (RV) in which he was living, having been told by Ms. Matthews that he, too,
could stay on Mr. Chamberlain’s property for a while. Mr. Chamberlain agreed.
About a month after Mr. Fraley began living at the property, Mr. Chamberlain
realized his checkbook was missing. He traveled to his credit union and obtained
temporary checks that he kept in the trunk of his car, a 1967 Ford Galaxy.
Around mid-September, Mr. Fraley’s RV went missing, and he believed that Tom
Beatty, a friend of Mr. Chamberlain’s, knew something about what had happened to it.
On September 12, police were called to the Chamberlain property where they spoke to
Mr. Fraley, Mr. Beatty, and Mr. Chamberlain. The officers told Mr. Fraley he needed to
leave, and that he was not welcome at the property. Mr. Fraley did not believe he had
been trespassed, however; according to him, Mr. Chamberlain never personally told him
he did not want him at his property.
A week later, at around 9:30 p.m. on September 19, Mr. Chamberlain was sitting
on his couch when he heard his car start. Mr. Chamberlain believed it was Mr. Fraley
and yelled, “‘You’re going to run out of gas. Don’t take the car.’” RP at 43. Mr. Fraley

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drove off anyway. Since the car had been taken without permission, Mr. Chamberlain
immediately called the police and reported it stolen.
A responding Tumwater police detective was on his way to Mr. Chamberlain’s
home to get more information when he saw the distinctive maroon and black Ford Galaxy
in the parking lot of a Walmart store not far from where Mr. Chamberlain lives. The
detective pulled in behind the Galaxy, activated his emergency overhead lights, and
began giving orders to Mr. Fraley, who angrily emerged from the car. The detective
arrested him. In a search incident to arrest, the detective found Mr. Chamberlain’s
missing checkbook in the left rear pocket of Mr. Fraley’s shorts; tucked into the
checkbook were some of Mr. Chamberlain’s temporary checks and a $300 check drawn
on a third party account that was payable to Ms. Matthews. After the detective reported
locating Mr. Fraley and the car, another officer drove Mr. Chamberlain to the Walmart
parking lot, where Mr. Chamberlain completed a stolen vehicle report form.
Mr. Fraley was charged with theft of a motor vehicle and unlawful possession of
payment instruments. After he failed to appear for hearings in December 2017 and
January 2018, the State amended the information to add two counts of bail jumping.
The case proceeded to a jury trial in June 2018. The State presented testimony
from Mr. Chamberlain, two police officers, and two prosecutors with personal knowledge
of facts underlying the bail jumping charges. During Mr. Chamberlain’s redirect

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examination, the prosecutor asked the following question about what Mr. Chamberlain
knew about a possible effort to cash one of his checks:
Q. Okay. Have you ever been alerted by another police department of
somebody attempting to cash one of your checks?
A. Lacey Police Department.
RP at 63.
At the outset of the defense case, before calling Mr. Fraley as his only witness,
defense counsel informed the court that he recently learned the State had information that
Mr. Fraley was a “person of interest in a forgery of one of Mr. Chamberlain’s checks”—
the Lacey Police Department matter mentioned in Mr. Chamberlain’s redirect
examination. Defense counsel asked that the State be required to present “an offer of
proof at some point before he can get into that in front of the jury.” RP at 169. The trial
court responded with the following ruling:
I’m not going to require an offer of proof by the state at this time, but I
agree with you . . . that based upon what I have heard if the state wants to
question your client about some other potential criminal conduct that an
offer would need to be made outside the presence of the jury before any
such question would be allowed.
RP at 169. The trial court asked the prosecutor if he understood the court’s ruling, to
which the prosecutor responded, “Yes, Your Honor.” Id.
Mr. Fraley testified he had driven Mr. Chamberlain’s car many times with
permission, and that he asked for and received Mr. Chamberlain’s permission to use the
car on the night of September 19, 2017. He said he borrowed the car that night because

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he was going to pick up Mr. Beatty and bring him back to Mr. Chamberlain’s home so
the three of them could talk about Mr. Fraley’s missing RV. He claimed that he and Mr.
Chamberlain discussed Mr. Fraley’s plan to borrow the car for that purpose for at least
half an hour before he left.
As for the checks, Mr. Fraley testified that earlier in the day on the 19th, Mr.
Chamberlain left home to visit his mother and Mr. Fraley later left for a short time to go
to the store. He explained that a friend he and Mr. Chamberlain had encountered the
prior evening had spent the night and was still there; he was concerned that while he was
at the store, she would be alone at Mr. Chamberlain’s home. Noticing the checkbook and
checks on a coffee table, he decided to take them with him for safekeeping. He claimed
that on returning to the home, “It just didn’t cross my mind” to remove the checks from
his back pocket. RP at 185.
During cross-examination, after Mr. Fraley admitted having Mr. Chamberlain’s
checks in his pocket when arrested, the prosecutor asked him about using the checks:
Q. Had you used any of those checks?
A. No, I had not.
Q. Did you ever remove any of those checks from the checkbook?
A. No, I did not.
Q. So if a check was attempted to be cashed in Lacey, that would
have nothing to do with you.
A. That is correct.
Q. Do you know a Vaughn Krueger?
A. No, I do not.
Q. Would Vaughn Krueger know you?
A. I couldn’t say.

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RP at 221. The prosecutor did not make an offer of proof before posing these questions.
The defense did not object.
After the defense rested, the trial court invited any objections or exceptions to its
jury instructions; the defense had none.
The jury was excused to begin its deliberations late in the morning on the third day
of trial. Mid-afternoon, it submitted a question about what to do if it could not reach
agreement on two of the counts. The court responded, “Please continue to deliberate.
Please refer to your jury instructions.” RP at 312. Less than an hour later, the jury sent
out a further note, this time referring to being “stuck in a deadlock” on two counts.
RP at 312-13. This time, the trial court questioned the presiding juror about the
reasonable probability of the jury reaching a verdict within a reasonable time on each
count. When the presiding juror answered no with respect to count one (theft of a motor
vehicle) and count three (a bail jumping charge), the parties stipulated to a mistrial on
those counts. The jury found Mr. Fraley guilty of the remaining unlawful possession of
payment instruments and bail jumping charge.
Several weeks later Mr. Fraley moved to dismiss or for a new trial, arguing that
the State committed prosecutorial misconduct by asking Mr. Fraley about the attempted
check cashing in Lacey without first making an offer of proof. At the hearing on the
motion, Mr. Fraley argued that the State had committed “three wrongs”: it had not timely

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disclosed information to the defense, it had violated the trial court’s ruling requiring an
offer of proof, and it had insinuated in closing argument that Mr. Fraley had committed
an uncharged crime. RP at 335-36.
The State’s response to the motion provided further detail on how and when it
came by the information alluded to in its cross-examination. The prosecutor explained
that while preparing for trial, he learned that Mr. Chamberlain was identified as a victim
in a second case: an attempt by a person named Vaughan Krueger to cash one of Mr.
Chamberlain’s checks in Lacey. The prosecutor learned that Mr. Krueger claimed to
have received the check from “Beau Fraley.” The name “Beau” prevented the connection
from being made earlier. The prosecutor said he notified defense counsel on the morning
of June 11 (the day before trial) of Mr. Krueger’s name, the case number, the arresting
agency, and the arresting officer.
After hearing argument, the trial court ruled there was no discovery violation
because the State notified the defense of the information as soon as it learned of it. While
it found (and the State conceded) that the prosecutor failed to comply with the court’s
ruling that it make an offer of proof before questioning Mr. Fraley about the attempted
check cashing, it also found that the violation was not flagrant or ill-intentioned. It
observed that in the midst of trial “there are so many issues [the lawyers] are trying to
deal with” and it took the prosecutor “at his word” that he was thinking an offer of proof
would be required before he could present evidence of the attempted check cashing in

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rebuttal. RP at 349-50. The court observed that the State had a good faith basis for its
questions and expressed its view that the prosecutor’s questions about removing or
attempting to cash a check were “insignificant compared to the other topics that were
discussed in the cross-examination.” RP at 352.
The trial court sentenced Mr. Fraley to a prison based drug offender sentencing
alternative. Mr. Fraley appeals.
ANALYSIS
Mr. Fraley makes two assignments of error. For the first time on appeal, he
challenges the elements instruction on the unlawful possession of payment instruments
charge. He also renews his posttrial argument that the State’s cross-examination about
the alleged check-cashing attempt in Lacey was prosecutorial misconduct.
I. NO ERROR IN THE ELEMENTS INSTRUCTION IS SHOWN
RCW 9A.56.320, under which Mr. Fraley was charged with unlawful possession
of payment instruments, provides:
(2)(a) A person is guilty of unlawful possession of payment
instruments if he or she possesses two or more checks or other payment
instruments, alone or in combination:
(i) In the name of a person or entity, or with the routing number or
account number of a person or entity, without the permission of the person
or entity to possess such payment instrument, and with intent either to
deprive the person of possession of such payment instrument or to commit
theft, forgery, or identity theft.

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No pattern elements instruction exists for the charge, so one was drafted by the
State and edited by the trial court. The instruction, to which the defense did not object,
states:
To convict the defendant of the crime of unlawful possession of
payment instruments, as charged in count 2, each of the following three
elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about September 19, 2017, the defendant, did possess
two or more checks, in the name of a person or entity, or with routing
number or account number of a person or entity, without the permission of
the person or entity to possess such payment instrument;
(2) That the defendant, intended to deprive the other person or entity
of such payment instrument; and
(3) That this act occurred in the State of Washington.
If you find from the evidence that each of these elements has been
proved beyond a reasonable doubt, then it will be your duty to return a
verdict of guilty.
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.
Clerk’s Papers at 87 (Instruction 13).
Although the instruction informed jurors of a required mens rea—“[t]hat the
defendant intended to deprive the other person or entity of such payment instrument”—
Mr. Fraley argues that the trial court erred by failing to instruct the jury that “knowing
possession” was also an essential element.
Under RAP 2.5(a) we generally will not entertain issues not raised in the trial
court, but an exception exists for manifest error affecting a constitutional right. RAP

No. 52841-0-II
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2.5(a)(3). An instruction that allows the jury to convict a defendant without finding an
essential element of the crime charged relieves the State of its burden of proving all
elements of the crime charged beyond a reasonable doubt, thereby depriving the
defendant of a fair trial. State v. Stein, 144 Wn.2d 236, 241, 27 P.3d 184 (2001).
Omission of an essential element is thus manifest error and an error of constitutional
magnitude. Mr. Fraley offers no persuasive argument that knowing possession is an
essential element of unlawful possession of payment instruments, however.
He first points out that the State alleged knowing possession of the checks in its
original and amended informations, making it law of the case. But unnecessary elements
become law of the case only when they are included in instructions to the jury. State v.
Hull, 83 Wn. App. 786, 797-98, 924 P.2d 375 (1996) (citing State v. Lee, 128 Wn.2d 151,
159, 904 P.2d 1143 (1995)).
Next, citing a couple of examples of crimes included in chapter 9A.56 RCW, Mr.
Fraley argues that all of the “unlawful possession” crimes included in that chapter require
both knowledge that the defendant possesses the item and knowledge that possession is
illegal. But his examples are of statutes that expressly require knowing possession,
which the statute under which Mr. Fraley was charged does not. See RCW 9A.56.140(1)
(possession of stolen property “means knowingly to receive, retain, possess, conceal, or
dispose of stolen property”); 9A.56.380(2) (possesses stolen mail “means to knowingly
receive, retain, possess, conceal, or dispose of stolen mail”) (emphasis added). Mr.

No. 52841-0-II
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Fraley argues that we should impute a knowledge requirement, but we do not read words
into a statute unless doing so is imperatively required to make it a rational statute. State
v. Taylor, 97 Wn.2d 724, 728-29, 649 P.2d 633 (1982). The statute under which Mr.
Fraley is charged is rational; it requires proof of a mens rea more culpable than
knowledge of possession.
Finally, he argues that “[t]he law disfavors strict liability offenses” and makes the
case that factors considered in determining whether the legislature intended to create a
strict liability offense weigh against finding that intent here. Br. of Appellant at 11. But
those factors are only reviewed when a statute “is silent on the mental intent element.”
State v. Anderson, 141 Wn.2d 357, 361, 5 P.3d 1247 (2000). The statute under which
Mr. Fraley was charged is not silent on the intent required. Unlawful possession of
payment instruments requires proof of “intent either to deprive the person of possession
of such payment instrument or to commit theft, forgery, or identity theft.” RCW
9A.56.320(2)(a)(i). Strict liability offenses are offenses that do not contain a mental
element. State v. Bash, 130 Wn.2d 594, 604, 925 P.2d 978 (1996).
Mr. Fraley demonstrates no error in the elements instruction.
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING NO ILL-
INTENTIONED, FLAGRANT, OR PREJUDICIAL PROSECUTORIAL MISCONDUCT
Mr. Fraley renews his argument that the prosecutor committed prosecutorial
misconduct when it cross-examined him about the attempted check cashing in Lacey

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without first making an offer of proof. “‘[A] prosecutor may not use impeachment as a
guise for submitting to the jury substantive evidence that is otherwise unavailable’; ‘a
prosecutor who asks the accused a question that implies the existence of a prejudicial fact
must be prepared to prove that fact.’” State v. Babich, 68 Wn. App. 438, 444, 842 P.2d
1053 (1993) (alteration in original) (quoting United States v. Silverstein, 737 F.2d 864,
868 (10th Cir. 1984)).
Prosecutorial misconduct is not attorney misconduct in the sense of violating rules
of professional conduct. State v. Fisher, 165 Wn.2d 727, 740 n.1, 202 P.3d 937 (2009).
It is, instead, a term of art that refers to “prosecutorial mistakes or actions [that] are not
harmless and deny a defendant [a] fair trial.” Id. To succeed on a prosecutorial
misconduct claim, an appellant has the burden of establishing that the prosecutor’s
conduct was improper (as being at least mistaken) and was prejudicial. State v. Stenson,
132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997). Where, as here, a defendant fails to
object in the trial court to a prosecutor’s statements, he waives his right to raise a
challenge on appeal unless the remark was so flagrant and ill-intentioned that it evinced
an enduring and resulting prejudice that could not have been neutralized by an
admonition to the jury. Id. at 719.2 “Under this heightened standard, the defendant must
2 Mr. Fraley suggests that because defense counsel telegraphed his concern about
the Lacey case, we should treat this like an adverse in limine ruling, where a party is
treated as having a standing objection. The trial court had not made a ruling adverse to
Mr. Fraley, however; it had reserved ruling on admissibility and simply ruled on the

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show that (1) ‘no curative instruction would have obviated any prejudicial effect on the
jury’ and (2) the misconduct resulted in prejudice that ‘had a substantial likelihood of
affecting the jury verdict.’” State v. Emery, 174 Wn.2d 741, 761, 278 P.3d 653 (2012)
(quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).
Where, as here, the trial court had an opportunity to make its own ruling on a
claim of prosecutorial misconduct, its ruling will be given deference on appeal. “‘The
trial court is in the best position to most effectively determine if prosecutorial misconduct
prejudiced a defendant’s right to a fair trial.’” State v. Luvene, 127 Wn.2d 690, 701, 903
P.2d 960 (1995) (quoting State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991)).
The trial court’s ruling was well explained. While the prosecutor violated the trial
court’s requirement that an offer of proof be made before raising the Lacey check cashing
attempt, the trial court accepted the prosecutor’s explanation that he misunderstood or
misremembered the ruling as dealing with evidence offered in rebuttal, not cross-
examination. The trial court is in the best position to make that assessment.
The fact that there had reportedly been an attempt to cash one of the stolen checks
was in evidence, through Mr. Chamberlain’s unobjected-to testimony. Information
produced in responding to Mr. Fraley’s posttrial motions demonstrated a good faith basis
for questioning Mr. Fraley about his knowledge of the attempted check cashing in Lacey.
procedure to be followed.

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As the trial court pointed out, had defense counsel made a timely objection, it could have
granted the objection, struck the answer and “done away with this issue entirely.”
RP at 353-54. It recognized, however, that experienced defense counsel knew that when
Mr. Fraley answered no to the prosecutor’s questions, “the state had nowhere else to go”
and “any objection by the defense could have served to highlight the information.”
RP at 351.
The record supports the trial court’s ruling that the challenged testimony was not
significant, the evidence on the unlawful possession of payment instruments count was
strong, and this was not a situation of incurable prejudice.
STATEMENT OF ADDITIONAL GROUNDS
In a pro se statement of additional grounds (SAG), Mr. Fraley raises two: (1) his
trial did not commence until June 12, 2018, contrary to an earlier ruling that it was
required to commence no later than 8:00 a.m. on June 11, 2018, and (2) the State violated
CrR 4.7 by injecting information that he was a person of interest in the Lacey
investigation.
The second additional ground appears to be raising the prosecutorial misconduct
issue raised in the opening brief, which was adequately addressed by counsel. Further
review is not required. See RAP 10.10(a). If Mr. Fraley is alleging a discovery violation
under CrR 4.7, his identification of the nature and occurrence of the error is insufficient.
See RAP 10.10(c).

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As to the first additional ground, the State has responded and pointed out an error
in Mr. Fraley’s representation of the facts. Mr. Fraley’s SAG states that at the time of a
hearing “on Thursday, June 7th 2018 it was ruled by [Judge] Eri[k] Price that my trial
was to commence no later than Monday June 11th 2018 at 8:00 a.m.” and this “was
agreed by both parties on the record.” SAG at 1. In fact, Judge Price ruled at the June 7
hearing that time for trial under CrR 3.3 would run on July 11, 2018. His ruling on that
score is reflected in both the transcript of proceedings and the resulting order.3 Trial
commencing on June 12, 2018, was timely.
Affirmed.
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.
Siddoway, J.
WE CONCUR:
Lee, C.J. Maxa, J.
3 Mr. Fraley might be confusing a May 10, 2018 continuance order that set his trial
date for June 11, 2018. But even that order recognized that the last allowable date for
trial under CrR 3.3 was July 11, 2018.