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2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 60311-0-II Respondent, v. UNPUBLISHED OPINION JASON LANCE WEBSTER, Appellant. PRICE, A.C.J. — Jason L. Webster appeals his convictions for two counts of felony violation of a no-contact order (VNCO)—domestic violence (DV). He argues that the trial court erred by denying his motion for a mistrial. Webster also raises additional claims in a statement of additional grounds (SAG).1 The trial court did not abuse its discretion, and Webster’s SAG claims fail. Accordingly, we affirm. FACTS On March 23, 2024, Webster was served with a temporary protection order protecting his ex-girlfriend, K.A. Shortly after being served, Webster called K.A. and left her two voicemails. K.A. reported the voicemails to law enforcement, and Webster was arrested and charged with two counts of felony VNCO—DV. The case proceeded to a jury trial in October 2024. 1 A defendant may file a self-represented statement of additional grounds for review pursuant to RAP 10.10. No. 60311-0-II In its preliminary remarks to the prospective jurors, the trial court read the charges, including the allegation that at the time of the violations, Webster had at least two prior convictions for violating no-contact orders. During jury selection, one of the potential jurors said that they were familiar with Webster: THE COURT: Does anyone know the defendant, Jason Webster? Okay, No. 49? JUROR: Just from having worked in the jail, Your Honor, I know he’s been in the jail. 8 Verbatim Rep. of Proc. (VRP) at 3515. Defense counsel immediately asked for a sidebar. The sidebar was neither transcribed nor summarized on the record. After the conclusion of the sidebar, the trial court asked Juror 49 if their work would have any impact on their ability to be impartial. Juror 49 said, “No, Your Honor.” 8 VRP at 3516. The trial court then asked all the prospective jurors, “Does anybody feel at this point in the proceeding that it [sic] can’t be fair in this case?” 8 VRP at 3516. No potential jurors expressed concern. The trial court later excused Juror 49. Webster moved for a mistrial based on Juror 49’s comment, arguing that the jury had been tainted by the reference to Webster having been in jail. The trial court denied the motion, explaining that it did not see Juror 49’s comment as causing significant prejudice: First of all, when Juror 49 indicated that, it was fairly early in the process, it was a fairly brief comment. And during the process, the jury was asked if there were any reasons they couldn’t be fair. Nobody raised any concerns about the fact that they’d heard [Webster] had been in jail. And I just don’t think it had that much of an impact. And I had indicated earlier when we were not on the record during the sidebar, that the fact that the charges here require proof of convictions of two prior no[-]contact 2 No. 60311-0-II orders, while it’s true there’s no nothing before the jury that says he was in jail for that, I think the expectation would be he probably would have been if he was convicted of that. So, I don’t see that there is any real prejudice that would require a mistrial here. . . . 8 VRP at 3544. At trial, the facts were largely undisputed, and they established that Webster left K.A. two voicemails shortly after being served with the temporary protection order. The State played the voicemails to the jury. In the second voicemail, Webster said, “And I’m sure I’ll probably hear this message in court on Monday, and make you look like a fool.” 8 VRP at 3573. The State also offered, without objection, Webster’s 2021 judgment and sentence for two prior VNCO convictions, which was admitted. The judgment and sentence imposed a sentence of 364 days on each count with 359 days suspended for 36 months (concurrent), meaning that Webster was to serve 5 days in jail.2 The judgment and sentence also provided for the option of either work release or community service in lieu of five days in custody. After trial, the jury found Webster guilty as charged. The trial court imposed a standard range sentence of 22 months’ confinement and 12 months’ community custody. Webster appeals. 2 The 359 days of custody were suspended for 36 months based on Webster following certain conditions, any violation of which could have resulted in some or all of the suspended time being imposed. 3 No. 60311-0-II ANALYSIS Webster argues that the trial court abused its discretion in denying his motion for a mistrial based on Juror 49’s comment. In his SAG, Webster also claims that there was insufficient evidence to support the jury’s verdict because (1) K.A. had previously violated two no-contact orders protecting him, and (2) he did not read the temporary protection order. We disagree with Webster’s mistrial argument and reject his SAG claims. I. DENIAL OF THE MOTION FOR MISTRIAL Webster claims that the trial court’s refusal to grant a mistrial deprived him of his right to a fair trial because Juror 49’s comment caused significant prejudice. He argues that Juror 49’s comment caused prejudice by both inviting an improper propensity inference and violating his presumption of innocence. We disagree. We review the decision to grant or deny a mistrial for an abuse of discretion. Helmbreck v. McPhee, 15 Wn. App. 2d 41, 67, 476 P.3d 589 (2020), review denied, 196 Wn.2d 1047 (2021). An abuse of discretion occurs if the trial court’s decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. In re Det. of D.H., 1 Wn.3d 764, 774, 533 P.3d 97 (2023). An abuse of discretion arises when no reasonable judge would have made the same decision. State v. Garcia, 177 Wn. App. 769, 776, 313 P.3d 422 (2013), review denied, 179 Wn.2d 1026 (2014). A trial court’s denial of a mistrial motion “ ‘will be overturned only when there is a “substantial likelihood” the prejudice affected the jury’s verdict.’ ” State v. Young, 129 Wn. App. 468, 472-73, 119 P.3d 870 (2005) (internal quotation marks omitted) (quoting State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d 390 (2000)), review denied, 157 Wn.2d 1011 (2006). Prejudice is 4 No. 60311-0-II created when a trial irregularity “raises the risk that the verdict will be improperly based on considerations of the defendant’s propensity to commit the crime charged.” Id. at 475. Prejudice is also created when a trial irregularity jeopardizes the defendant’s presumption of innocence. State v. Rodriguez, 146 Wn.2d 260, 267, 45 P.3d 541 (2002). We examine three factors to determine whether a trial irregularity was so prejudicial that it warrants a mistrial: “ ‘(1) its seriousness; (2) whether it involved cumulative evidence; and (3) whether the trial court properly instructed the jury to disregard it.’ ” Garcia, 177 Wn. App. at 776 (internal quotation marks omitted) (quoting State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012)). We defer to the trial court’s evaluation of these factors because the trial court is in the best position to discern prejudice. Id at 776-77. The first factor considers whether the trial irregularity was “ ‘serious enough to materially affect the outcome of the trial.’ ” Id. at 777 (quoting State v. Hopson, 113 Wn.2d 273, 286, 778 P.2d 1014 (1989)). The seriousness of the trial irregularity depends on the type of prejudice it creates. See Id. at 781. A trial irregularity is serious when there is high risk that it invites an improper propensity inference. See Young, 129 Wn. App. at 479. In Young, a case where the defendant was accused of killing the victim with a deadly weapon, the appellate court granted a new trial where the potential jurors learned of the defendant’s prior second degree assault conviction. Id. at 470-71. Because the information about the prior conviction suggested that Young had a propensity to commit violent crimes, the very type of crime Young was accused of committing in the trial, the risk of the propensity inference was high. Id. at 475. 5 No. 60311-0-II Conversely, the risk of the propensity inference is low when the disclosure to the jury does not have the same linkage to the crime involved in the trial, like when it involves “no information concerning the nature or number of prior convictions . . . .” Hopson, 113 Wn.2d at 286 (denying a mistrial based on a witness’s statement that the victim had known the defendant “three years before he went to the penitentiary last time”) (internal quotation marks omitted)). Here, Juror 49’s comment did not reveal any details about Webster’s presence at the jail. The comment did not explain why, when, or how many times Webster had been to jail. Especially when the trial court had already informed the prospective jurors in its preliminary remarks that Webster had been convicted twice in the past with VNCO, the lack of detail in Juror 49’s comment makes the risk of an improper propensity inference exceptionally low. A trial irregularity is also serious when it violates the defendant’s presumption of innocence. Rodriguez, 146 Wn.2d at 267. The presumption of innocence “ ‘is a basic component of a fair trial under our system of criminal justice.’ ” State v. Jaime, 168 Wn.2d 857, 861, 233 P.3d 554 (2010) (internal quotation marks omitted) (quoting State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999)). The presumption of innocence entitles defendants “ ‘to the physical indicia of innocence . . . .’ ” Id. 861-62 (quoting Finch, 137 Wn.2d at 844). For instance, requiring a defendant to wear prison garb or restraints can violate the presumption of innocence absent some compelling reason. See Rodriguez, 146 Wn.2d at 264. Here, Juror 49’s comment did not violate Webster’s presumption of innocence because it did not suggest that Webster was guilty of the charged crime. Since Juror 49 did not say when he saw Webster at the jail, the jurors could not necessarily conclude that Webster was in jail on the current charges. In fact, the jurors would have had no way to know why Webster had been in jail; 6 No. 60311-0-II as in, whether it had anything to do with present case or whether it was related to the two prior convictions the trial court had already told them about. Therefore, the jurors were unlikely to presume Webster’s guilt based on Juror 49’s comment. Because Juror 49’s comment did not invite either an improper propensity inference or violate Webster’s presumption of innocence, it was not a serious trial irregularity. The second factor for whether a trial irregularity was so prejudicial that it warrants a mistrial is “whether the trial irregularity involved cumulative evidence.” Garcia, 177 Wn. App. at 781. Where the information revealed by an irregularity is cumulative of properly admitted evidence, this factor weighs against a mistrial. See, e.g., Hopson, 113 Wn.2d at 286. Here, Webster argues that Juror 49’s comment did not involve cumulative evidence because the jury did not otherwise hear that Webster had been to jail. But Webster minimizes the implications from the things the jury did hear. Again, before voir dire began, the trial court itself told the jury that Webster had two prior VNCO convictions. As the trial court noted, these prior convictions created a reasonable inference that Webster had been to jail before. More significantly, the jury received (without objection) Webster’s 2021 judgment and sentence. See Young, 129 Wn. App. at 478 (considering the trial irregularity within the context of evidence later admitted at trial). The judgment and sentence imposed 364 days of custody, with 359 days suspended on certain conditions, leaving 5 days of custody stated expressly on the face of the document. Although it is true that Webster was also provided the opportunity to serve the five days through work release or community service, the substantial likelihood that Webster had some sort of contact with a person, like Juror 49, who worked at the jail, was plainly in front of the jury through the 2021 judgment and sentence. Because Juror 49’s comment involved 7 No. 60311-0-II cumulative evidence, there could be only minimal, if any, prejudice from the juror’s comment. Thus, this factor weighs against a mistrial. The third factor for whether a trial irregularity was so prejudicial that it warrants a mistrial is “whether the trial court properly instructed the jury to disregard the irregularity.” Garcia, 177 Wn. App. at 781. An instruction may or may not be sufficient to cure an irregularity and avoid a mistrial. Id. at 782. “We presume that juries follow the instructions and consider only evidence that is properly before them.” State v. Perez-Valdez, 172 Wn.2d 808, 818-19, 265 P.3d 853 (2011). We recognize that the trial court did not specifically instruct the jury to disregard Juror 49’s comment. Generally, it would be prudent to instruct prospective jurors to disregard this type of comment. However, as explained above, Juror 49’s comment was not serious and was directly cumulative of other evidence presented at trial. The trial court also told the jury during its introductory instructions to base its decision “solely upon the evidence presented during these proceedings.” 8 VRP at 3510. Juror 49’s comment, having been made during voir dire, was clearly not evidence. We must presume that the jury heeded the trial court’s instruction and thus did not consider the comment in reaching its verdict. For these reasons, the trial court’s failure to instruct the jury to disregard the comment is not sufficient to warrant granting a mistrial. Taking the above factors together, the trial court did not abuse its discretion in denying a mistrial. II. STATEMENT OF ADDITIONAL GROUNDS In his SAG, Webster raises two issues. First, he alleges that K.A. previously violated two no-contact orders against him and that he is the real victim. This claim is based entirely on allegations that were not presented during trial and, therefore, are not part of the record on appeal. 8 No. 60311-0-II We do not consider facts outside the trial record on appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Accordingly, we decline to consider Webster’s allegations regarding K.A.’s prior no-contact order violations against him. Second, Webster appears to challenge the sufficiency of the evidence, arguing that he lacked knowledge of the temporary protection order because he only read the court date on the front page. He appears to claim that he did not see the portion of the order that prohibited contact with K.A. Knowledge of the specific terms of a no-contact order is not required. State v. Sanchez, 30 Wn. App. 2d 402, 407-08, 544 P.3d 1107 (2024). A defendant only needs to know that the no-contact order exists and that their willful contact violated the no-contact order. Id. (explaining that to be convicted of VNCO, it is not necessary for a defendant to have knowledge of all of the terms of the order). And knowledge of a protection order is presumed by service of the order. See RCW 7.105.465(2) (“After the officer has served the order on the respondent, the officer shall enforce prospective compliance with the order.”); City of Auburn v. Solis-Marcial, 119 Wn. App. 398, 402-3, 79 P.3d 1174 (2003) (explaining that service “is the means to supply the missing element of knowledge”). Webster cannot dispute that he knew of the existence of the order. In fact, Webster does not dispute that he was served with the temporary protection order; he only claims that he chose not to read it through entirely. And notwithstanding his claim to have not read the entire order, Webster cannot reasonably dispute that he also knew that his willful conduct violated the order. In in his second voicemail, he stated, “I’m sure I’ll probably hear this message in court on Monday.” 8 VRP at 3573. This 9 No. 60311-0-II statement demonstrates that Webster understood both the connection between the hearing set by the order and his call, as well as the wrongfulness of the call. In other words, it supports a reasonable inference that Webster understood that his calls to K.A. violated the no-contact order. Webster’s claim fails. CONCLUSION The trial court did not abuse its discretion in denying Webster’s motion for a mistrial. We reject Webster’s remaining claims. Accordingly, we affirm the trial court. 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. PRICE, A.C.J. We concur: VELJACIC, C.J. GLASGOW, J. 10