NOVEMBER 10, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 36936-6-III
v. ) UNPUBLISHED OPINION
LISA L. MUNRO, )
PENNELL, C.J. — Lisa Munro appeals her conviction for third degree theft. Because
Ms. Munro has shown the prosecutor and trial court improperly and prejudicially referenced
facts outside the record in the presence of the jury, we reverse Ms. Munro’s conviction and
remand for a new trial.
Lisa Munro volunteered as a host mother for international exchange students. One
of her students was K.N, a student from Vietnam. K.N. lived with Ms. Munro from
August 2018 to March 2019.
When K.N. arrived in the United States he had $2,000 cash and some pocket
money. After Ms. Munro helped K.N. buy a $600 laptop, his remaining $1,400 went
missing. K.N.’s parents wired Ms. Munro $600 in replacement funds for K.N. Ms. Munro
gave K.N. a portion of the funds in January. But after Ms. Munro did not give K.N. the
remaining funds, the State charged Ms. Munro with theft: felony second degree theft
State v. Munro
based on the missing $1,400 cash, and misdemeanor third degree theft based on the wired
funds that were not released to K.N.
The case proceeded to trial and the State presented testimony from K.N., the
exchange program administrator, and two of K.N.’s fellow exchange students. The only
evidence of the misdemeanor theft was presented through the testimony of K.N. The State
did not present testimony from K.N.’s parents and did not introduce any exhibits.
K.N. testified Ms. Munro gave him $200 cash in January, and then informed him
she would provide the remaining $400 when she had time to travel to her bank in
Spokane. Although Ms. Munro traveled to Spokane several times after this conversation,
K.N. never received the remaining funds. K.N. did not clarify whether he asked Ms.
Munro to remit the funds after she returned from Spokane.
Ms. Munro testified that she had never intended to deprive K.N. of any money.
She claimed she gave K.N. $300 cash of the $600 after she received it from his parents.
Following their discussion about his money, Ms. Munro believed K.N. wanted her to keep
the rest in her bank account until he requested it. He never did. After the State filed
charges in March, Ms. Munro did not return the money because a judge ordered her to
have no contact with K.N. According to Ms. Munro, she would return the money as soon
as the court gave her permission.
State v. Munro
During summation, both parties addressed Ms. Munro’s claim that she was ready
to return K.N.’s money as soon as she was given permission. At issue in this appeal is the
following excerpt of the prosecutor’s argument:
[THE PROSECUTOR:] [Ms. Munro] testified that she still had that
three hundred dollars and that she’s completely prepared to give it to him, but
she wasn’t allowed to give it to him. Well, first of all, she had the money in
January, kept it through February, kept [it] through the beginning of March or
the first part of March when he was removed from her home. And now, we
have this court case and she says that she’s not allowed to give it to him even
though she wants to. Well, she could have given it to him in January, February,
March and then the court case started and she said she’s not allowed. That’s
not exactly true. There are ways. If she really wanted to give him that money,
she could have found a way. She could have given the money to her attorney to
give to him. She could have asked the Court—
[THE DEFENSE ATTORNEY:] Objection, Judge, third party. Can’t go
through a third party on that. Right in the rules.
THE COURT: Well, asking a third party or asking the court?
[THE DEFENSE ATTORNEY:] Through the third party. Can’t even
communicate through a third party.
THE COURT: Although the evidence not [sic] presented but asking the
Court would be an option.
[THE PROSECUTOR:] Okay, so she could have asked the Court. She
could have asked the Court for permission. She could have given the money to
the Court to give to K.N. There are ways. She could have found a way if she
really wanted to, but instead she withheld that money and it’s now June and
she’s had that money since January.
1 Report of Proceedings (June 5, 2019) (RP) at 202-03.
State v. Munro
The prosecutor also referred to Ms. Munro’s alleged desire to return the money
when arguing she “intended to deprive [K.N.] of the property.”
Id. at 206.
Well, it may be true that she now wants to give it back to him, maybe her
intent changed now that we’re in trial, but she could have given it to him
beforehand. She could have given it to him in January, February, March, April,
May and now we’re in June and now she wants to give it back to him. So that’s
how you—you figure out someone’s intent. Look at their actions.
Id. The prosecutor reiterated
these arguments in rebuttal. The defense referred to Ms.
Munro’s statement and the prosecutor’s argument briefly, contending, “She was told she
can’t contact [K.N.]. That’s undisputed. Did you hear any evidence otherwise? You only
go by the evidence, not what we—we’ve talked about.”
Id. at 211.
The jury found Ms. Munro not guilty of second degree theft of the $1,400 cash,
and guilty of third degree theft of the wired funds.
Ms. Munro timely appeals her third degree theft conviction.
Ms. Munro contends the prosecutor committed misconduct in summation by
arguing she could have gone through her attorney or asked the court to facilitate return of
K.N.’s money. Although Ms. Munro did not allege prosecutorial misconduct at the time
of trial, we will review a claim of misconduct for the first time on appeal if it was “so
State v. Munro
flagrant and ill intentioned that an instruction could not have cured the resulting
prejudice.” State v. Emery,
There are two steps to the prosecutorial misconduct inquiry. First, we ask whether
the prosecutor’s conduct was improper. Second, we assess the question of prejudice. Our
review does not look to the prosecutor’s subjective intent. State v. Walker,
(2015). Instead, we look at the issue of misconduct objectively
and examine whether, given the context of the trial, the prejudice to the defendant could
have been cured through corrective court action.
Id. The prosecutor’s argument
constituted misconduct. By telling the jury Ms. Munro
could have gone through her attorney to return K.N.’s money, the prosecutor conveyed
factual information to the jury that was outside the trial record. The only evidence
admitted at trial was Ms. Munro’s testimony that she could not return the money because
she was ordered not to have contact with K.N. The prosecutor could have submitted
rebuttal evidence to contest Ms. Munro’s claims. But they did not do so. Without
contradictory evidence on the record, it was improper for the prosecutor to act as a
witness and testify as to ways in which Ms. Munro could have returned K.N.’s money.
See In re Pers. Restraint of Glasmann,
(2012) (It is
misconduct “to submit evidence to the jury that has not been admitted at trial.”).
State v. Munro
On appeal, the State contends the prosecutor’s statements were innocuous because
Ms. Munro was only charged with theft of funds during the month of January and the no-
contact order was not issued until March. We disagree with this assessment. According to
Ms. Munro’s testimony, the first time she learned K.N. wanted the money released was
when court proceedings began in March. But at that point, it was not possible to have
contact with K.N. and return the funds. The extra-judicial information proffered by the
prosecutor went directly to Ms. Munro’s assertion of good faith. The prosecutor argued
Ms. Munro’s willful failure to return the money in the months after issuance of the no-
contact order was evidence of an ongoing mental state that dated back to January. This
argument improperly prejudiced Ms. Munro.
The trial court aggravated the prosecutor’s misconduct when it agreed with the
prosecutor’s factual assertion. Although the court recognized the prosecutor was
proffering facts not in evidence, the court concurred with the idea that Ms. Munro could
have asked the court to facilitate the return of K.N.’s money. This was not only improper
under article IV, section 16 of the state constitution, it solidified the prejudice to Ms.
Munro. Once the court commented on the prosecutor’s factual proffer, the cat simply
could not be put back into the bag.
State v. Munro
The prosecutor’s prejudicial misconduct deprived Ms. Munro of her right to a fair
trial. Ms. Munro’s defense was that she lacked intent to permanently deprive K.N. of his
money. The extraneous information proffered by the prosecutor went to the heart of her
case. The remedy now due to Ms. Munro is a new trial. 1
Ms. Munro’s conviction for third degree theft is reversed. This matter is remanded
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
Fearing, J. Lawrence-Berrey, J.
Because we remand this matter for retrial, we need not address Ms. Munro’s
additional assignments of error.