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State v. Vassar

Court of Appeals of Washington, Division 3

June 9, 2015

The State of Washington, Respondent ,
v.
Brenda Kay Vassar, Appellant

Page 857

[Copyrighted Material Omitted]

Page 858

Appeal from Lewis County Superior Court. Docket No: 13-1-00433-4. Judge signing: Honorable Nelson E Hunt. Judgment or order under review. Date filed: 12/09/2013.

Lise Ellner, for appellant.

Jonathan L. Myer, Prosecuting Attorney, and J. Bradley Meagher, Deputy, for respondent.

Authored by Stephen M. Brown. Concurring: Robert E. Lawrence-Berrey, Laurel H. Siddoway.

OPINION

Page 859

 Brown, J.

[188 Wn.App. 253] [¶1] Brenda Vassar appeals her motor vehicle theft conviction, assigning error to alleged flagrant and ill-intentioned prosecutorial misconduct. She contends the State (1) provoked her into calling its witnesses liars on [188 Wn.App. 254] cross-examination, (2) argued facts not in evidence, improperly using the prestige of its office, and (3) misstated the law and shifted the burden of proof. We disagree and affirm.

FACTS

[¶2] Charlene Hammons bought a truck from Ms. Vassar, paying $500 cash in exchange for a signed bill of sale and the keys. The bill of sale stated Ms. Vassar would provide the title within two days, but no title was delivered. Ms. Hammons soon resold the truck to Terry Bell, conditioned on Ms. Hammons obtaining title from Ms. Vassar. A few days later, Ms. Vassar saw the truck on a Centralia street. Ms. Vassar used a key she had retained to take the truck to a friend's place. After learning from Mr. Bell the truck was missing, Ms. Hammons confronted Ms. Vassar, who admitted she took the truck. Ms. Vassar refused to return the truck, claiming she was liable for the truck because she retained title and it was not yet insured.

[¶3] Ms. Hammons reported the truck stolen. Officer Mike Lowrey handled the case. Officer Lowrey contacted Ms. Vassar, who told him she had sold the truck but had not been paid. After Officer Lowrey told Ms. Vassar about Ms. Hammons' bill of sale, Ms. Vassar said she could not remember if she had been paid and the bill of sale was forged. Officer Lowrey compared the signature on the bill of sale to Ms. Vassar's signature on her driver's license, concluding the bill of sale was valid. Ms. Vassar still refused to return the truck or give Ms. Hammons title without proof of insurance.

[¶4] Upon returning from vacation a month later, Officer Lowrey learned the truck still had not been returned. The officer contacted Ms. Vassar, who once again refused to return the truck. Officer Lowrey told Ms. Vassar he had probable cause to arrest her for vehicle theft but did not get an arrest warrant. Soon, the officer received word the truck was parked in a Goodwill parking lot. Ms. Hammons [188 Wn.App. 255] retrieved the truck, finding it damaged and not drivable. The next day, Ms. Vassar turned herself in to the jail.

[¶5] Based on the above, the State charged Ms. Vassar with theft of a motor vehicle. At trial, Ms. Vassar denied receiving money from Ms. Hammons and testified Ms. Hammons had forged her signature on the bill of sale. On direct examination, Ms. Vassar stated she turned herself in because " Officer Lowrey told everyone that he came into contact with that there was a warrant out for my arrest and anyone helping me would be arrested as well." Report of Proceedings (RP) at 94.

[¶6] On cross-examination, the State, without objection, questioned Ms. Vassar:

Q: Now, you say Officer Lowrey was telling everyone -- those are your words, " everyone" -- that there's a ...

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