State Of Washington, Respondent V. Samuel David Obert Slater, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 79335-7-I
)
Respondent, )
)
v. )
)
SAMUEL DAVID OBERT SLATER, ) UNPUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — Samuel Slater appeals his convictions for violation of a
court order (domestic violence) and bail jumping. He contends the trial court
abused its discretion when it denied his motion to sever the two counts because
it did not adequately engage in ER 404(b) analysis when determining the
evidence of bail jumping was cross admissible. But the court adequately
engaged in ER 404(b) analysis when it recognized an unexplained failure to
appear for the trial call is a form of flight, material as consciousness of guilt of
violation of the court order. And the court balanced the probative value against
any unfair prejudice.
Slater also contends the prosecutor committed misconduct during
closing argument. Slater objected to the prosecutor’s suggestion that Slater did
not appear for trial because he had cold feet and did not want to be there.

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Slater does not establish that this comment was improper. For the first time, on
appeal, Slater challenges several other comments but does not establish they
were so flagrant and ill intentioned that any prejudice could not be cured with an
instruction.
We affirm.
FACTS
In April, 2017, the State charged Slater with one count of violation of a
court order (domestic violence). On September 8, 2017, Slater did not appear
at his trial call hearing. The State amended the information to charge Slater
with one count of bail jumping.
Prior to trial in November 2018, Slater moved to sever the two counts.
The court denied the motion. During motions in limine, Slater renewed his
motion to sever, and the court again denied the motion. The court also denied
Slater’s motion to exclude argument that his failure to appear on September 8,
2017 was evidence of flight.
Following trial, the jury convicted Slater on both counts. The court
sentenced Slater to an exceptional downward sentence of 25 months’
incarceration.
Slater appeals.

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ANALYSIS
I. Motion to Sever
Slater argues the trial court abused its discretion when it denied his
motion to sever.
We review a trial court’s denial of a motion to sever for abuse of
discretion.1 “The law does not favor separate trials.”2 To determine whether
severance is warranted, trial courts consider
(1) the strength of the State’s evidence on each count; (2) the
clarity of the defenses as to each count; (3) court instructions to
the jury to consider each count separately; and (4) the
admissibility of evidence of the other charges even if not joined for
trial.[3]
“A defendant seeking severance has the burden of demonstrating that a trial
involving all counts would be so manifestly prejudicial as to outweigh the
concern for judicial economy.”4 Slater challenges only the fourth factor.
Slater argues the court abused its discretion when it determined the
evidence of bail jumping was cross admissible as to the count of violation of a
court order without engaging in an adequate ER 404(b) analysis. We disagree.
Admissibility of evidence under ER 404(b) requires a three-
part analysis. The court must identify the purpose for which the
evidence will be admitted; the evidence must be materially
relevant to that purpose; and the court must balance the probative
1 State v. Huynh, 175 Wn. App. 896, 908, 307 P.3d 788 (2013).
2 Id.
3 State v. Russell, 125 Wn.2d 24, 63, 882 P.2d 747 (1994).
4 Huynh, 175 Wn. App. at 908.

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value of the evidence against any unfair prejudicial effect the
evidence may have upon the fact-finder.[5]
Here, prior to trial, Slater moved to sever the two counts. As to the cross
admissibility, the court stated:
[T]he case law indicates that this is sort of a factor that can be
extremely important. It’s the cross admissibility of each charge on
to the other charge. Because if they’re cross admissible, the
prejudice is going to exist whether you sever the case or not. . . .
I did look at least at one of the cases cited by the State which
specifically held bail jumping is admissible, cross admissible as to
evidence of guilt. . . . I’m finding it’s likely that there would be
cross admissibility. . . .
I do agree with [defense counsel] that this case is
somewhat unusual in that the prejudice would be greater than in
some other cases because of both cases being violating court
orders. . . . However, there is some differences in the court orders.
I think there’s a different nature to not coming for a trial as
opposed to violating a protection order.
At any rate, it’s not that I don’t agree that there is higher
prejudice here. However, because of the cross admissibility, I’m
finding that the prejudice is going to exist essentially whether it’s
severed or not and that we’re not decreasing the prejudice
significantly by severing the cases. Therefore, I’m holding
because of judicial economy, the State is permitted to join the
cases.[6]
Several days later during motions in limine, Slater renewed his motion to
sever. The trial court, which had not presided over the initial motion to sever,
denied the renewed motion. The court indicated, “I am not sure I agree” that
5 State v. Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001).
6 Report of Proceedings (RP) (Nov. 9, 2018) at 11-13.

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“there’s more prejudice” because both cases involved violating a court order.7
Slater argued, “[T]his is essentially 404(b) evidence that wouldn’t come in
otherwise but for the joinder of these two charges, violations of court orders. . . .
If the court’s going to agree that previous convictions . . . should not come in
under 404(b), then neither should the bail jump itself.”8 In response, the court
stated, “I think the test is not prejudice. It’s unfair prejudice. And in balancing
this, I do not believe that the danger of unfair prejudice outweighs the probative
value.”9
Also during motions in limine, the court denied Slater’s motion to exclude
argument that his failure to appear on September 8, 2017 was evidence of
flight. The following exchange occurred:
COURT: The prosecution’s position is that you, I assume, wish to
be arguing that missing trial is evidence of guilt?
STATE: That’s correct.
COURT: And there does seem to be case law supporting that. I
think that certainly defense can argue that he did make,
you know, 13 other court dates. I think there’s support
for that in the record. It will just be an argument that’s
made. I assume we’re talking about closing? . . .
DEFENSE: Correct.[10]
7 RP (Nov. 14, 2018) at 27.
8 Id. at 29.
9 Id. at 29-30.
10 Id. at 35-36.

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Although the trial court did not use the specific labels, it is clear the court
applied the three-part ER 404(b) analysis. The court identified (1) the purpose
for which the bail jumping evidence would be admitted, (2) the evidence was
materially relevant for that purpose, and (3) the probative value outweighed any
unfair prejudice.11 It is noteworthy that the court expressly mentioned the
ER 404(b) “arena” when announcing its denial of the pretrial motion to sever.12
And as discussed, when the trial court denied the renewed motion to sever on
the first day of trial, it was immediately after Slater’s reference to ER 404(b) that
the court indicated it was balancing the probative value against any unfair
prejudice. The court clearly addressed the third part of the analysis. The court
weighed the probative value with any unfair prejudice. Slater does not
challenge the court’s conclusion concerning prejudice; he merely argues the
court failed to conduct the appropriate analysis.
And a careful reading of the record reveals the court adequately applied
the first and second parts of the ER 404(b) analysis. When addressing Slater’s
motion in limine to exclude argument that Slater missing the trial call hearing
evidenced consciousness of guilt, the court noted that case law supports such
an argument.
11 See Freeburg, 105 Wn. App. at 497.
12 RP (Nov. 9, 2018) at 12.

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The court appeared to be referencing State v. Jefferson13 and State v.
Cobb.14 In both cases, the State charged the defendants with an underlying
crime and, after failing to appear at trial, the State argued the failure to appear
was evidence of consciousness of guilt as to the underlying crime. Both cases
cite the principle: “The rationale which justifies the admission of evidence of
‘flight’ is that, when unexplained, it is a circumstance which indicates a reaction
to a consciousness of guilt.”15
After Cobb and Jefferson, Washington courts have further delineated the
probative value of evidence of flight. Evidence of flight is admissible when it
creates “‘a reasonable and substantive inference that defendant's departure
from the scene was an instinctive or impulsive reaction to a consciousness of
guilt or was a deliberate effort to evade arrest and prosecution.’”16 But even if a
reasonable inference exists, evidence of flight “tends to be only marginally
probative as to the ultimate issue of guilt or innocence.”17 Consequently, “the
circumstance or inference of flight must be substantial and real. It may not be
speculative, conjectural, or fanciful.”18 An unexplained failure to appear for trial
13 11 Wn. App. 566, 524 P.2d 248 (1974).
14 22 Wn. App. 221, 589 P.2d 297 (1978).
15 Jefferson, 11 Wn. App. at 570; Cobb, 22 Wn. App. at 225.
16 Freeburg, 105 Wn. App. at 497 (quoting State v. Nichols, 5 Wn. App.
657, 660, 491 P.2d 677 (1971)).
17 Id. at 498.
18 State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965).

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is an evasion of prosecution and thus is a form of flight.19 Although the trial
court did not explicitly outline the case law, the court adequately addressed the
first and second part of the test when it determined case law allowed arguing
that missing trial is evidence of guilt.
The trial court adequately applied the three-part analysis under
ER 404(b). The trial court did not abuse its discretion by determining evidence
of bail jumping was cross admissible as to Slater’s consciousness of guilt of
violating a court order. Because Slater has the burden to demonstrate that a
trial involving all counts would be so manifestly prejudicial as to outweigh the
concern for judicial economy and because his argument is limited to cross
admissibility, we conclude the trial court did not abuse its discretion when it
denied Slater’s motion to sever.
II. Prosecutorial Misconduct
Slater contends the prosecutor committed prejudicial misconduct during
closing argument.
19 See Freeburg, 105 Wn. App. at 497-98 (Flight includes the inference
of “a deliberate effort to evade arrest and prosecution. Actual flight is not the
only evidence in this category.”); Cobb, 22 Wn. App. at 224; Jefferson, 11 Wn.
App. at 570.

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We review prosecutorial misconduct claims for abuse of discretion.20 To
prevail on a claim of prosecutorial misconduct, the defendant bears the burden
of establishing that the conduct was both improper and prejudicial.21
Any allegedly improper statements should be viewed within the
context of the prosecutor’s entire argument, the issues in the
case, the evidence discussed in the argument, and the jury
instructions. Prejudice on the part of the prosecutor is established
only where “there is a substantial likelihood the instances of
misconduct affected the jury's verdict.”[22]
Additionally, “[t]he failure to object to a prosecuting attorney’s improper remark
constitutes a waiver of such error unless the remark is deemed to be so flagrant
and ill intentioned that it evinces an enduring and resulting prejudice that could
not have been neutralized by an admonition to the jury.”23 On the other hand,
“[i]f the defendant objected to the misconduct, we determine whether the
misconduct resulted in prejudice that had a substantial likelihood of affecting the
verdict.”24
Here, during closing argument, after discussing the evidence that
established Slater violated a court order, the prosecutor stated:
20 State v. Brett, 126 Wn.2d 136, 174, 892 P.2d 29 (1995).
21 State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011)
(quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).
22 State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)
(citing State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997) (quoting State
v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995)).
23 State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
24 State v. Sakellis, 164 Wn. App. 170, 184, 269 P.3d 1029 (2011).

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And here’s the last piece. If he didn’t do it, why didn’t he
show up for trial call a year ago? Why didn’t he show? Motions
are done. Omnibus, pretrials, arraignments, all that pretrial stuff
that people have to show up [for] and nothing really every
happens, that’s done. The day that we find out whether this case
is going out or not, he’s gone. If he didn’t do it, why didn’t he
show?[25]
Slater did not object to this statement. His only objection came during the
following exchange:
STATE: He didn’t show because he got cold feet. He didn’t
show—
SLATER: Objection.
STATE: —because he didn’t want to be there.
COURT: I’ll just note it’s argument.
STATE: He didn’t show to court because he didn’t want to go
to trial.[26]
Also during closing, the prosecutor made the following statements:
If he didn’t do it, why didn’t he show? What did he take a
month and a half? There’s no evidence that he mistook his date.
There’s no evidence that the court was notified he wasn’t going to
be able to make it. He just didn’t show on that day that mattered
because he’s guilty.[27]
And then when it came time to find out guilt or innocence
the first go-around, he didn’t show. Ladies and gentlemen, you
don’t sign documents if you’re not going to adhere to them. . . .
25 RP (Nov. 15, 2018) at 215-16.
26 Id. at 219.
27 Id. at 220.

No. 79335-7-I/11
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This man is guilty of both crimes. He’s banking on the fact
nobody else saw it, and he’s banking on the fact you’re not going
to take into consideration he didn’t show for the second time.
Don’t give it to him.[28]
Slater did not object to these statements.
At the start of rebuttal, the prosecutor argued:
Man, if my case was that weak, I think I’d show up for trial
call. I think I’d be there if there were all those contradictions. I
think I’d get this thing out of the way and move on with my life. I’d
show up. He didn’t. He didn’t show because he didn’t want to
face the facts.[29]
Slater did not object to this statement. Also during rebuttal, the prosecutor
stated, “If this case was as weak as defense counsel says it is, I would have
showed up on September 8.”30 “He didn’t show up because he didn’t want to
face the music. He didn’t show because he was there on August 6, and that’s
why he’s guilty.”31 At the end of rebuttal, the prosecutor also argued, “There’s
no way if he didn’t do it he wouldn’t show up for his trial call if this case was as
weak as possible.”32 Slater did not object to these statements.
In part, Slater argues the prosecutor improperly “argu[ed] an
impermissible inference from the evidence, and . . . appeal[ed to] the jury’s
28 Id. at 222.
29 Id. at 231.
30 Id. at 235.
31 Id. at 236.
32 Id. at 238.

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passion.”33 As to the single comment challenged at trial and several other
statements challenged for the first time on appeal, Slater fails to establish that
the prosecutor acted improperly. Many of the comments touched on whether
Slater had an explanation for his failure to appear. As discussed above, “[t]he
rationale which justifies the admission of evidence of ‘flight’ is that, when
unexplained, it is a circumstance which indicates a reaction to a consciousness
of guilt.”34 The prosecutor properly argued Slater did not offer an explanation
for his failure to appear. Slater fails to show such comments were improper.
As to the comments regarding guilt, Slater cites In the Matter of the
Personal Restraint of Glasmann,35 to argue the prosecutor improperly
“instruct[ed] the jury that Mr. Slater was guilty.”36 In Glasmann, during closing
argument, the prosecutor presented several slides with pictures of Glasmann
and the word “GUILTY” superimposed across his face.37 Although defense
counsel did not object, our Supreme Court determined “the misconduct here
was so pervasive that it could not have been cured by an instruction.”38
Here, unlike Glasmann, the comments did not amount to the prosecutor
pervasively offering an improper opinion on Slater’s guilt. They were offered in
33 Appellant’s Br. at 18.
34 Cobb, 22 Wn. App. at 225.
35 175 Wn.2d 696, 286 P.3d 673 (2012).
36 Appellant’s Br. at 18.
37 Glasmann, 175 Wn.2d at 701-02.
38 Id. at 707.

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the context of the prosecutor’s discussion of flight and consciousness of guilt.
Although the distinction may be difficult for the jury, a timely objection would
have allowed for an instruction that would have cured any prejudice. Slater
does not establish the prosecutor’s comments were so flagrant and ill
intentioned that they evince an enduring and resulting prejudice that could not
have been neutralized with a jury instruction.
IV. Cumulative Error
Finally, Slater argues the cumulative error requires reversal.
“The cumulative error doctrine applies where a combination of trial errors
denies the accused a fair trial even where any one of the errors, taken
individually, may not justify reversal.”39 For lack of a combination of trial errors,
we conclude Slater is not entitled to a new trial based on cumulative error.
Therefore, we affirm.
WE CONCUR:
39 In re Det. of Coe, 175 Wn.2d 482, 515, 286 P.3d 29 (2012).