Full Opinion

Filed Washington State Court of Appeals Division Two November 3, 2026 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 61768-4-II Respondent, v. THOMAS LAWRENCE NEBEL, UNPUBLISHED OPINION Appellant. LEE, J. — Thomas L. Nebel appeals his conviction and sentence for one count of first degree escape. Nebel argues that: (1) the trial court made an impermissible comment on the evidence, (2) the State committed prosecutorial misconduct during closing argument, and (3) his conviction should be reversed due to cumulative error. We affirm. FACTS A. BACKGROUND Nebel was in custody at the Department of Corrections (DOC) following a felony conviction. On October 30, 2024, Nebel entered the DOC’s graduated reentry program. Graduated reentry is a less restrictive alternative to incarceration that is available to incarcerated individuals who have been assessed and accepted into the program. As part of the program, Nebel received substance abuse treatment at a private residential facility that contracted with the DOC, and his presence at the treatment facility was monitored through electronic monitoring with an ankle monitor. When Nebel entered the program, he agreed that “if [he] No. 61768-4-II abscond[s] from supervision while on electronic monitoring, [he] may face criminal charges of escape in superior court.” Clerk’s Papers (CP) at 77 (some capitalization omitted). On December 14, 2024, staff at the treatment facility discovered that Nebel was missing. Chehalis police later recovered Nebel’s ankle monitor, which had been cut and left in a supermarket parking lot. The State charged Nebel with one count of first degree escape on January 6, 2025. The case proceeded to a jury trial. B. TRIAL At the beginning of trial, the trial court informed the jury that the trial court judge decides whether evidence is admissible at trial. The trial court also stated that “[o]ur state constitution prohibits a trial judge from making a comment on the evidence” and that it would be “improper for [the trial court judge] to express by words or conduct any personal opinion from the value of a particular witness’s testimony or exhibit.” 6 Verbatim Rep. of Proc. (VRP) (Mar. 3, 2025) at 2588. Accordingly, the trial court instructed the jury to disregard if it appeared that the trial judge indicated a personal opinion concerning the evidence. During the State’s case-in-chief, the trial court also read to the jury a stipulation which provided: “On December 14th, 2024, the defendant, Thomas Lawrence Nebel, was being detained by the Washington State Department of Corrections pursuant to a conviction for a felony offense.” 6 VRP (Mar. 3, 2025) at 2620. The State then proceeded with testimony from Officer David Tolbert. 2 No. 61768-4-II 1. Officer David Tolbert’s Testimony Officer Tolbert worked for the DOC and supervised incarcerated individuals in the graduated reentry program. Officer Tolbert was Nebel’s designated community corrections officer (CCO) when Nebel was in the program. On October 30, 2024, Officer Tolbert discussed the electronic home monitoring agreement with Nebel. Under the agreement, Nebel indicated that he understood that “if [he] abscond[s] from supervision while on electronic monitoring, [he] may face criminal charges of escape in superior court.” Ex. 1 (some capitalization omitted). Officer Tolbert reviewed the agreement “extensively” with Nebel, including “go[ing] over the consequences and the outcomes of what happens if someone does escape from the program.” 6 VRP (Mar. 3, 2025) at 2627. Both Officer Tolbert and Nebel signed the agreement. Nebel then received his electronic ankle bracelet. The ankle bracelet communicated with a base unit located in the treatment facility. When the ankle bracelet was more than 150 feet away from the base unit, it sent a signal that the bracelet was out of range. Officer Tolbert monitored the location of the ankle bracelet every morning and would confirm Nebel’s compliance with the monitoring agreement with staff at the treatment facility. Officer Tolbert also testified that the electronic home monitoring unit uploaded data in real-time. Officer Tolbert explained that he “can see 24 hours ‘leave/enter, leave/enter, unauthorized leave,’ different codes for the information that’s communicated.” 6 VRP (Mar. 3, 2025) at 2631. The data from the electronic home monitoring aided Officer Tolbert as a CCO in monitoring offenders, and he relied on the data. Officer Tolbert explained that although he used 3 No. 61768-4-II the electronic home monitoring activity summaries, he did not install the software that generated the summaries nor did he input any information into the system. Officer Tolbert further testified that he provided Nebel’s activity summary report to the State. During Officer Tolbert’s testimony, the State moved to admit the activity summary for Nebel’s ankle bracelet. Nebel objected to the admission of the activity summary because Officer Tolbert did not prepare the document nor did he maintain the system that generated the summary. The trial court overruled Nebel’s objection and admitted the activity summary, explaining: I believe it does fall under an exception to hearsay under the business record, understanding that Officer Tolbert doesn’t own or control this particular application used, just like I don’t own or control Odyssey or Microsoft. But he uses it for his business purposes for Department of Corrections. It sounds like he uses it daily. He is able to provide an indicia of reliability based on the fact that he reviews it almost daily, is able to corroborate information on it with [the facility], which gives it indicia of authenticity and accuracy. 6 VRP (Mar. 3, 2025) at 2636. Officer Tolbert explained that the activity summary showed Nebel had last entered the range of the base unit located at the treatment facility at 4:53 p.m. and then left at 7:19 p.m. At 10:59 p.m., the treatment facility’s duty officer received a “power loss” notification indicating that the ankle bracelet had shut off from failing to communicate with the base unit. VRP (Mar. 3, 2025) at 2641. Officer Tolbert testified that the treatment facility never informed him that Nebel returned, and Nebel never contacted Officer Tolbert after he left the treatment facility. Officer Tolbert further testified that Nebel was not authorized to leave the treatment facility and that any request to leave the treatment facility would require approval and documentation. Officer Tolbert also testified that he had warned Nebel that he could not leave the premises. 4 No. 61768-4-II On December 17, a DOC officer retrieved the ankle bracelet from Chehalis police. Officer Tolbert examined the ankle bracelet and verified that the serial number on the bracelet matched the ankle bracelet assigned to Nebel. 2. Nebel’s Testimony Nebel testified regarding his knowledge of the electronic home monitoring agreement and his reasons for leaving. Nebel explained that he did not understand that he was in a detention facility and that he could not leave the facility; rather, Nebel believed that he was in a drug rehabilitation center and that he was on probation and parole. Nebel explained that he was sick and left the facility on December 14 to get “medical provision[s].” 6 VRP (Mar. 3, 2025) at 2663. Nebel cut his ankle bracelet off and left it at the supermarket. He also stated that he later turned himself in because he believed he had committed a probation and parole violation rather than escape. 3. Conclusion of Trial After the parties presented their cases, the trial court instructed the jury. In part, the trial court reminded the jury that trial court judges are prohibited from commenting on the evidence and instructed the jury to disregard any statements that appear to indicate the trial judge’s personal opinion. During closing argument, the State contended: [T]his case is about Mr. Thomas Nebel. The State submits that Mr. Nebel is a fellow that just can’t follow the rules. Rules don’t apply to him. And I don’t say that to be denigrating. I’m just saying as of the evidence when you look at it, it just shows over and over and over again a fellow that can’t follow the rules. 5 No. 61768-4-II 7 VRP (Mar. 4, 2025) at 3019. The State also argued that Nebel had committed first degree escape when he knowingly left the treatment facility despite being in custody pursuant to a felony conviction. Nebel did not object to the State’s arguments. Nebel argued that he did not understand the electronic home monitoring agreement and that he left the facility to buy cold medicine at the supermarket. 4. Verdict and Sentencing The jury found Nebel guilty of one count of first degree escape. The trial court sentenced Nebel to 29 months of custody. Nebel appeals. ANALYSIS Nebel first argues that the trial court made an impermissible comment on the evidence. Next, Nebel contends that the State committed prosecutorial misconduct during closing argument. And Nebel argues that his conviction should be reversed due to cumulative error. Each argument is addressed in turn below. A. COMMENT ON THE EVIDENCE For the first time on appeal, Nebel argues that the “trial court’s comments describing ankle monitor records as having an ‘indicia of reliability’ violated Washington’s constitutional bar against judicial comments on the evidence.” Br. of Appellant at 14. Nebel contends that review is warranted because the trial court’s comments constitute a manifest error affecting a constitutional right. We disagree that review of this issue raised for the first time on appeal is warranted. 6 No. 61768-4-II Generally, under RAP 2.5(a), we do not review claims of error that were not first raised in the trial court. However, an exception exists for issues that involve a “manifest error affecting a constitutional right.” RAP 2.5(a)(3). Nebel’s claim involves a constitutional issue because the claim arises from the constitutional protection against judicial comments on the evidence; however, because the trial court did not impermissibly comment on the evidence, Nebel has not established a manifest error. The Washington Constitution prohibits trial courts from commenting on the evidence. WASH. CONST. art. IV, § 16. “A comment on the evidence is impermissible where it conveys to the jury the judge’s personal attitudes toward the merits of the case or leads the jury to infer that the judge personally believed the testimony at issue.” State v. Lee, 5 Wn.3d 734, 751, 582 P.3d 271 (2026). “The touchstone of error in a trial court’s comment on the evidence is whether the feeling of the trial court as to the truth value of the [evidence] has been communicated to the jury.” State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995). But a trial court must make a clear record and has authority to provide reasons for its rulings on the admissibility of evidence. Lee, 5 Wn.3d at 751. We review claims of constitutional violations, including allegations of judicial comments on the evidence, de novo. Id. at 750. Contrary to Nebel’s assertion, the trial court did not comment on the evidence; rather, the trial court provided its reason for admitting the activity summary under the business records exception to the rule against hearsay. The trial court overruled Nebel’s objection to the activity summary, reasoning: I believe it does fall under an exception to hearsay under the business record, understanding that Officer Tolbert doesn’t own or control this particular application used, just like I don’t own or control Odyssey or Microsoft. But he uses it for his 7 No. 61768-4-II business purposes for Department of Corrections. It sounds like he uses it daily. He is able to provide an indicia of reliability based on the fact that he reviews it almost daily, is able to corroborate information on it with [the facility], which gives it indicia of authenticity and accuracy. 6 VRP (Mar. 3, 2025) at 2636. The trial court’s comment preceded the admission of the exhibit; thus, it is reasonably inferable that the statement related to admissibility.1 See Lee, 5 Wn.3d at 753 (reasoning that a statement providing a ruling prior to testimony reasonably indicates the statement did not relate to the substance—and thus the trial court’s perception—of the testimony). Taken in context, the trial court’s use of the words “reliability,” “authenticity,” and “accuracy” did not reflect the trial court’s view of the truth value of the evidence. Rather, the trial court explained that the evidence was admissible under the business records exception and reasoned that Officer Tolbert’s daily use of the program that generated the activity summary supported admission of the document. Given Officer Tolbert’s familiarity with and use of the program that generated the activity summary, the trial court reasoned that Officer Tolbert could sufficiently corroborate the identity of the record. Thus, the trial court’s use of “reliability,” “authenticity,” and “accuracy” went to the admissibility of the document rather than the truth value of the evidence. Accordingly, the trial court’s statements reflect the reason for its evidentiary ruling and did not reflect the trial judge’s personal attitudes on the merits of the case. Moreover, the trial court twice instructed the jury to disregard any statements that appear to have indicated the trial judge’s personal opinion, and we presume juries follow instructions. Id. at 754. 1 Nebel does not challenge the admissibility of the exhibit on appeal. 8 No. 61768-4-II Because the trial court did not comment on the evidence, Nebel has not shown a manifest error affecting a constitutional right under RAP 2.5(a)(3). Thus, because Nebel raises this challenge for the first time on appeal, we do not further address this issue. B. PROSECUTORIAL MISCONDUCT Nebel also argues that the State committed prosecutorial misconduct during closing argument. We disagree. 1. Legal Principles To prevail on a claim of prosecutorial misconduct, “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). If the defendant did not object to the prosecutor’s remarks in the trial court, the defendant is deemed to have waived any error unless the misconduct was so flagrant and ill-intentioned that an instruction could not have cured any resulting prejudice by showing 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.’” Id. at 760-61 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)). In determining prejudice, we focus more on whether the resulting prejudice could have been cured rather than whether the misconduct was flagrant or ill intentioned. Id. at 762; State v. Teas, 10 Wn. App. 2d 111, 121, 447 P.3d 606 (2019), review denied, 195 Wn.2d 1008 (2020). In closing argument, the State is afforded “wide latitude to argue reasonable inferences from the evidence, including evidence respecting the credibility of witnesses.” Thorgerson, 172 Wn.2d at 448. However, a prosecutor may not argue facts not in evidence. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704-05, 286 P.3d 673 (2012). Nor is a prosecutor permitted to 9 No. 61768-4-II express their personal opinion of a defendant’s guilt. State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014); State v. McKenzie, 157 Wn.2d 44, 53, 134 P.3d 221 (2006). To be considered misconduct, it must be clear and unmistakable that the prosecutor is expressing a personal opinion. McKenzie , 157 Wn.2d at 54. 2. No Prosecutorial Misconduct Nebel argues that the State committed prosecutorial misconduct with the following argument: The State submits that Mr. Nebel is a fellow that just can’t follow the rules. Rules don’t apply to him. And I don’t say that to be denigrating. I’m just saying as of the evidence when you look at it, it just shows over and over and over again a fellow that can’t follow the rules. 7 VRP (Mar. 4, 2025) at 3019. Nebel did not object to the State’s argument. Nebel contends that the State’s argument had no evidentiary basis and “maligned Mr. Nebel’s character without cause.” Br. of Appellant at 26. Nebel further argues that the State’s argument impermissibly expressed the prosecutor’s personal opinion of Nebel’s guilt. Here, given the State’s entire argument, Nebel cannot show that the prosecutor expressed a personal opinion concerning Nebel’s guilt. Rather, the State argued a reasonable inference from the evidence that Nebel failed to comply with the rules governing his participation in the graduated reentry program, resulting in him leaving the treatment facility and being charged with escape. Because the State acted within its wide latitude to argue reasonable inferences from the evidence, the prosecutor’s arguments were not improper. Additionally, even if we assume without deciding that the State’s arguments were misconduct, Nebel’s claim fails because he cannot show prejudice. Had Nebel objected to the 10 No. 61768-4-II State’s arguments, the trial court would have been able to remind the jury that arguments are not evidence and to only consider the evidence presented during trial. And Nebel cannot show that any misconduct had a substantial likelihood of affecting the jury verdict. The State presented evidence that Nebel was part of the graduated reentry program following a felony conviction, that Nebel certified he understood his absconding from DOC supervision may result in charges for escape, and that Nebel left the treatment facility and cut off his ankle bracelet. Accordingly, given the strength of the evidence against Nebel, Nebel cannot show that the prosecutor’s arguments had a substantial likelihood of affecting the jury verdict. Accordingly, Nebel’s challenge fails. C. CUMULATIVE ERROR “Under the cumulative error doctrine, a defendant may be entitled to a new trial when cumulative errors produce a trial that is fundamentally unfair.” Emery, 174 Wn.2d at 766. Nebel argues that his conviction should be reversed due to cumulative error. Because we find no errors, Nebel is not entitled to a new trial under the cumulative error doctrine. CONCLUSION We affirm. 11 No. 61768-4-II 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. Lee, J. We concur: Maxa, P.J. Che, J. 12