Full Opinion

Filed Washington State Court of Appeals Division Two November 10, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 60907-0-II Respondent, v. JEFFREY THOMAS RAUB, UNPUBLISHED OPINION Appellant. CRUSER, J.—Jeffrey Raub was convicted of one count of theft from a vulnerable adult in the first degree and three counts of trafficking in stolen property in the first degree. Raub also pleaded guilty to obstructing a law enforcement officer. Raub appeals his three trafficking convictions, arguing that the trial court’s jury instruction defining “traffic” was an impermissible comment on the evidence. In a statement of additional grounds for review, RAP 10.10, Raub also challenges his theft and trafficking convictions, as well as his guilty plea to obstructing a law enforcement officer. We hold that the trial court’s jury instruction was not an impermissible comment on the evidence. We also conclude that the arguments in Raub’s statement of additional grounds for review either do not warrant our review or do not warrant a reversal of his convictions. We affirm. No. 60907-0-II FACTS I. BACKGROUND Jeffrey Raub worked as a caregiver for Home Instead, a company that provides at-home care for seniors who require assistance. In 2023, he began working in the home of Elizabeth and Worthington Smith, a married couple in their mid- to late 90s who required 24-hour care. Raub was one of multiple caregivers for the Smiths and typically worked the 12-hour night shift. In June 2023, Mrs. Smith and her family began noticing that some of her jewelry was missing and reported the missing items to the police. The family continued to report more missing items to police after their initial report, as they continued to discover more items missing from the home. The missing items included an engagement ring, two guard rings, a diamond and sapphire brooch, diamond-covered tie tacks, a special edition book of original Audubon prints, a silver vase, and a pearl necklace. The value of the missing jewelry was estimated at $35,000, with the engagement ring alone appraised at $16,000. Law enforcement obtained a list of all the caregivers who had access to the Smiths’ home and was able to identify who had recently been to a pawnshop. This investigation showed that Raub had recently pawned a total of three rings across two different pawnshops. Raub pawned two rings at one pawnshop and never returned for them. The police confiscated the rings, which Mrs. Smith identified as her guard rings. Separately, Raub pawned the same diamond ring at a different pawnshop on two separate occasions. The police also confiscated this ring, which Mrs. Smith identified as her engagement ring. 2 No. 60907-0-II Raub was charged with one count of theft from a vulnerable adult in the first degree, three counts of trafficking in stolen property in the first degree, and one count of obstructing a law enforcement officer. Raub pleaded guilty to obstructing a law enforcement officer. II. THE TRIAL At trial, the testimony was largely consistent with the facts set forth above. During closing argument, Raub admitted that he pawned jewelry at the pawnshops in question and on the dates in question. But he argued that the jewelry he pawned was not the Smiths’ jewelry, and that the timeline of when the Smiths’ jewelry went missing did not align with when he pawned jewelry at the pawnshops. The State proposed, and the trial court gave, the Washington Pattern Jury Instruction (WPIC) for the definition of “traffic” that said: “Traffic” means: to sell, transfer, distribute, dispense, or otherwise dispose of stolen property to another person; or to buy, receive, possess, obtain control of stolen property, with intent to sell, transfer, distribute, dispense, or otherwise dispose of the property to another person. Clerk’s Papers (CP) at 95 (citing 11A Washington Practice: WPIC 77.35 (5th ed. 2024)), 155. The State also proposed, and the trial court gave, an additional instruction that further defined “traffic.” Jury instruction 20 stated: “ ‘Traffic’ includes the transfer of stolen property to a pawnshop as collateral to obtain a loan.” Id. at 131. The State derived this definition from a court of appeals case that held that the “ ‘sale or transfer of ownership is not the exclusive means of committing trafficking in stolen property. Evidence that a defendant knowingly pawns stolen goods is sufficient to support a charge of trafficking in stolen property.’ ” Id. at 131 n.1 (quoting State v. Hermann, 138 Wn. App. 596, 604, 158 P.3d 96 (2007)). Raub objected, arguing that the 3 No. 60907-0-II standard WPIC definition was broad enough for the State to argue that pawning stolen property constitutes trafficking. III. VERDICTS AND APPEAL The jury convicted Raub of one count of theft from a vulnerable adult in the first degree, additionally finding that Raub used his position of trust to facilitate the commission of the crime, as well as three counts of trafficking in stolen property in the first degree. Raub filed this timely appeal. DISCUSSION I. COMMENT ON THE EVIDENCE “A judge is prohibited from expressing to the jury his or her personal attitudes regarding the merits of the case or instructing the jury that issues of fact have been established as a matter of law under article IV, section 16 of the Washington Constitution.” State v. Gouley, 19 Wn. App. 2d 185, 197, 494 P.3d 458 (2021). We review the facts and circumstances of a case to determine whether a court’s words or actions are a comment on the evidence. State v. Lee, 5 Wn.3d 734, 750, 582 P.3d 271 (2026). A jury instruction may be an impermissible comment on the evidence if it “resolve[s] a contested factual issue for the jury.” State v. Brush, 183 Wn.2d 550, 559, 353 P.3d 213 (2015). We review a claim that the trial court commented on the evidence de novo. Lee, 5 Wn.3d at 750. Raub argues that jury instruction 20 was an impermissible comment on the evidence because the definition of “traffic” in the instruction derived from a court of appeals holding that applied a “sufficiency of the evidence” standard of review. Relying on Brush, Raub contends it is error to import language into a definitional jury instruction that is derived from a case that merely 4 No. 60907-0-II considered whether the evidence admitted in that particular case was sufficient to sustain the jury’s verdict. As Raub notes, the question, on appeal, of whether the evidence is sufficient for a rational trier of fact to have found the elements of the crime beyond a reasonable doubt is a different question than that posed to a jury. See Brush, 183 Wn.2d at 558; State v. Sinrud, 200 Wn. App. 643, 651, 403 P.3d 96 (2017). “[A]ppellate courts review the sufficiency of evidence for whether any rational jury could have found guilt beyond a reasonable doubt and construe facts in the light most favorable to the State, while juries must find guilt beyond a reasonable doubt.” State v. Sandoval, 8 Wn. App. 2d 267, 278–79, 438 P.3d 165 (2019). Raub further argues that the challenged instruction resolved a factual issue for the jury. Jury instructions are erroneous when they resolve a disputed factual issue that is within the province of the jury to decide. Brush, 183 Wn.2d at 559. “A jury instruction that does no more than accurately state the law pertaining to an issue, however, does not constitute an impermissible comment on the evidence by the trial judge.” State v. Woods, 143 Wn.2d 561, 591, 23 P.3d 1046 (2001), overruled on other grounds by State v. Schierman, 192 Wn.2d 577, 593, 438 P.3d 1063 (2018). We disagree with Raub that jury instruction 20 contained an impermissible comment on the evidence. Instruction 20 did not resolve a contested factual issue for the jury. Although the instruction was duplicative and unnecessary, it did no more than tell the jury that the transfer of stolen property to another constitutes trafficking, a legal principle that was also contained in the definition of “traffic” that was provided to the jury. That the transfer could be for the purpose of using the stolen property as collateral for a loan is an accurate statement of the law and did not resolve for the jury whether Raub transferred stolen property. Indeed, Raub’s theory of the case 5 No. 60907-0-II was not that he did not pawn jewelry for the purpose of obtaining a loan, but that the jewelry he pawned did not belong to the Smiths. Instruction 20 does not touch on this factual question, but rather clarifies the legal definition of “traffic.” Therefore, the instruction is not an impermissible comment on the evidence. II. STATEMENT OF ADDITIONAL GROUNDS In a statement of additional grounds for review (SAG), Raub argues (1) the State withheld exculpatory or impeaching evidence from the jury when it admitted still images of security camera footage rather than the full video footage, (2) the trial court’s denial of his motion to exclude the jail phone calls was reversible error, (3) his trial counsel was ineffective, and (4) the State knowingly permitted a witness to give false testimony. A. Security Camera Footage In SAG ground 1, Raub argues that the State violated the Brady1 rule because it withheld exculpatory or impeaching evidence by admitting still shots from security footage rather than the full video footage. As an initial matter, it is not clear whether Raub is claiming the video footage was not provided to the defense prior to trial or whether he is claiming that the State failed to seek admission of the footage at trial. The former would constitute a violation of the discovery rules and run afoul of Brady, but the latter would not. In any event, if Raub is claiming that the footage was not furnished to the defense prior to trial, at no point during the trial did Raub or Raub’s counsel make this claim and, as such, this claim would require us to search for, and consider, matters outside of the record. 1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). 6 No. 60907-0-II On appeal, “the reviewing court will not consider matters outside the trial record.” State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). B. Jail Phone Calls In SAG ground 2, Raub argues that the trial court erred in admitting recordings of phone calls he made from jail.2 A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. State v. Wasuge, 5 Wn.3d 877, 887, 582 P.3d 320 (2026). Although Raub titles this claim as the trial court having erred in not granting his motion to exclude the jail calls, he argues in his SAG that the trial court erred in allowing only selected portions of his jail phone calls rather than admitting them in their entirety. However, Raub did not make this argument at trial. At trial, he sought full exclusion of the calls and did not seek admission of additional portions of the calls. As such, this claim is not preserved for review. Further, it calls for us to consider matters outside of the record because no mention is made at trial of additional phone calls or additional portions of the calls that were admitted. This claim fails. C. Ineffective Assistance of Counsel In SAG ground 3, Raub argues that his trial counsel provided ineffective assistance because he did not file motions Raub asked him to file or abide by Raub’s decisions throughout the trial. To demonstrate that a defense counsel’s assistance was ineffective, the defendant must show (1) the defense counsel’s representation was deficient and (2) this deficient representation resulted in 2 Raub characterizes this claim as challenging the trial court’s failure to grant his “motion to suppress,” SAG at 9, but the phone calls were not the subject of a motion under CrR 3.6. Rather, the State sought a ruling on the admissibility of this evidence in a motion in limine. Raub objected to the admission of the jail phone calls. 7 No. 60907-0-II prejudice for the defendant. McFarland, 127 Wn.2d at 334–35. Allegations must be based on the trial court record. Id. at 335. Raub’s allegations are based on communication between Raub and his trial counsel, and therefore rely on facts that are not within the trial court record. Therefore, we decline to address Raub’s ineffective assistance of counsel claim. D. Prosecutorial Misconduct: Permitting Witness to Give False Testimony SAG ground 4 alleges that the State elicited false testimony from a witness. The Smiths and their family did not report the pearl necklace as missing when they made their first report to the police, and police officer body camera footage shows Nancy Klos, the Smiths’ daughter, showing the officer the pearls and saying they were not real. But in Ms. Klos’ testimony at trial, the State asked her, “Were these real pearls?” to which Ms. Klos replied, “Yes.” 9 Verbatim Rep. of Proc. 4038. Raub argues that the State “knew, or should have known the pearl necklace was fake” and therefore assisted Ms. Klos in giving false testimony. SAG at 25. “In a prosecutorial misconduct claim, the defendant bears the burden of proving that the prosecutor’s conduct was both improper and prejudicial.” State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). “To show prejudice requires that the defendant show a substantial likelihood that the misconduct affected the jury verdict.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012) (plurality opinion). Even if the State’s conduct had been improper, Raub fails to demonstrate how Ms. Klos testifying that the pearl necklace was real was prejudicial. Raub was not accused of pawning a pearl necklace, so the necklace would not have affected the trafficking charges. Raub’s charge for theft from a vulnerable adult included the aggregate of everything that went missing from the 8 No. 60907-0-II Smiths’ home from April 1 to September 27, 2023. These items included an engagement ring, two guard rings, two brooches, tie pins, a silver vase, and a special edition book, in addition to the pearl necklace. Theft from a vulnerable adult in the first degree requires “theft of property . . . that exceed(s) five thousand dollars in value.” RCW 9A.56.400(1)(a). The missing jewelry was estimated to be valued at $35,000, with the engagement ring alone valued at $16,000. Therefore, the aggregate value of the missing jewelry, with or without the value of the pearl necklace, would still have been sufficient to convict Raub of theft from a vulnerable adult in the first degree. Raub has not demonstrated that the discrepancy about the pearl necklace prejudiced him or a substantial likelihood that it affected the jury’s verdict.3 CONCLUSION We hold that jury instruction 20 was not an impermissible comment on the evidence. We also reject the arguments Raub makes in his SAG. Accordingly, we affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered. 3 We also note that Raub did not object to this testimony at trial. 9 No. 60907-0-II CRUSER, J. We concur: PRICE, A.C.J. MAXA, J. 10