                                                                                                          tV 1t APPEALS
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                                                                                                 BY
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              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II




STATE OF WASHINGTON,
                                 Respondent.                                No. 43658 -2 -II
                                                                           Consolidated with
                                                                            No. 43748 -1 - II


         V.

                                                                     UNPUBLISHED OPINION
JOEL ERNEST LEWIS and RICHARD
MICKELSON,
                                 Appellants.




         MAXA, J. —   Joel E. Lewis and Richard Mickelson each appeal their convictions for


second degree assault while armed with a deadly weapon, arguing that the prosecutor made

improper arguments during closing argument, counsel was ineffective for failing to object to the

prosecutor' s arguments, and the cumulative effect of the claimed errors denied them a fair trial.

In his   statement of additional grounds   for   review ( SAG),    Mickelson also argues that his counsel


was ineffective for failing to offer x - ays of Mickelson' s ribs as evidence of self defense and that
                                       r                                              -

the bailiff violated Mickelson' s due process rights by allegedly checking the crime scene and

communicating her findings to the jury. We hold that ( 1) although the prosecutor' s arguments

were improper in three instances, the defendants waived any errors because they could have been

cured with an appropriate   instruction; ( 2)    counsel was not ineffective because not objecting to

the   prosecutor' s arguments   may have been     a   legitimate trial strategy; ( 3) the   cumulative effect of
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


the claimed errors did not warrant reversal; and ( 4) there is no evidence in the record that allows

review of the errors claimed in Mickelson' s SAG. Accordingly, we affirm.

                                                   FACTS


            Nathaniel Abbett, Misty Rasmussen, Jaime Hadley, Lewis and Mickelson were friends

who had known each other from the time they were in school together. Abbett and Rasmussen

had two children together as the result of a seven -year romantic relationship. They eventually

separated and Rasmussen and the children moved in with Hadley, Rasmussen' s stepsister. Lewis .

and Mickelson also lived in Hadley' s home.

            On the evening of December 22, 2011, Abbett argued over the telephone with

Rasmussen. Around midnight, Hadley drove Lewis and Mickelson to Abbett' s house. Abbett

was outside and recognized Hadley' s car as it passed by his house. He decided to follow it in his

own vehicle. Eventually the vehicles stopped, and Lewis and Mickelson jumped out of Hadley' s

car and assaulted Abbett. Mickelson swung a baseball bat through Abbett' s partially rolled

down driver -
            side window and then crawled through the window and hit Abbett with his fists.


Lewis broke the passenger -side window and struck Abbett with a baseball bat. Eventually,

Lewis told Mickelson to stop and warned that the police were coming. Lewis and Mickelson

returned to Hadley' s car and left. As a result of the incident, Abbett suffered numerous

lacerations to his face and there were significant amounts of glass in his left ear.


            The State charged Lewis and Mickelson with second degree assault with a deadly

weapon. In a joint trial Lewis and Mickelson both presented a self -
                                                                   defense theory, arguing that

Abbett had attempted to hit Mickelson with his car after Lewis and Mickelson approached him.

Mickelson testified that his attack on Abbett was an attempt to stop Abbett' s car to ensure he was

not   hit   again.   Lewis testified that he broke the   passenger window with   his   elbow   in   an attempt   to
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


pull Abbett away from Mickelson and get Mickelson out of Abbett' s car. Lewis and Mickelson

both denied using a baseball bat to assault Abbett.

         Trial testimony showed that Lewis and Mickelson had been drinking the day of the

assault, neither had a steady job, and neither Mickelson nor Hadley initially told police the

version of events that they presented at trial. In rebuttal argument, the prosecutor referred to

Lewis   and   Mickelson      and   their   witnesses as   the " underbelly        of   society,"   and stated that they

were   the " type   of people" who         don' t have jobs, drink       all   day,   and   don' t like " cops."   Report of


Proceedings ( RP) at 1477 -78. The prosecutor also attempted to undermine defendants' self -


defense theory by stating that the defendants' trial testimony was the " first time anyone heard

this story," "   they' ve   never said     it before,"   and "   they   never gave statements."          RP at 1483 -84.


Finally, the prosecutor argued that the incident represented a second degree assault or self-

defense, and implied that the jury either had to render a verdict based on whether it believed

Abbett or it believed Lewis and Mickelson. Defense counsel for Lewis and Mickelson did not

object to any of these statements.

         The jury found Lewis and Mickelson guilty ascharged.- Lewis and Mickelson

unsuccessfully moved. for a new trial. Lewis and Mickelson appeal.

                                                         ANALYSIS


A.       PROSECUTORIAL MISCONDUCT


          To prevail on a claim of prosecutorial misconduct, a defendant must show that " in the

context of the record and all the circumstances of the trial, the prosecutor' s conduct was both

improper      and prejudicial."      In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d

 673 ( 2012).    In assessing whether a prosecutor' s closing argument was improper, we recognize

that the prosecutor has " wide latitude to argue reasonable inferences from the evidence,

                                                                  3
No. 43658 -2 -II, consolidated with No. 43748 -1 - II



including    evidence   respecting the credibility      of witnesses."   State v. Thorgerson, 172 Wn.2d 438,


448, 258 P. 3d 43 ( 2011).       The prosecutor is permitted to comment on the veracity of a witness as

long as he or she does not express a personal opinion or argue facts not in the record. State v.
Smith, 104 Wn.2d 497, 510 -11, 707 P. 2d 1306 ( 1985).


        To establish prejudice, the defendant must show a substantial likelihood that the


misconduct affected the.jury verdict. Thorgerson, 172 Wn.2d at 442 -43. Prejudice is not

determined in isolation but " in the context of the total argument, the issues in the case, the

evidence, and    the instructions    given   to the   jury." State v. Warren, 165 Wn.2d 17, 28, 195 P. 3d

940 ( 2008). When the defendant failed to object at trial, the defendant is deemed to have waived


any error unless the prosecutor' s misconduct was " so flagrant and ill intentioned that an

instruction   could not   have   cured   the resulting   prejudice."   State v. Emery, 174 Wn.2d 741, 760-

61, 278 P. 3d 653 ( 2012).       If an appropriate jury instruction could have cured the potential

prejudice but the defendant did not request one, the defendant' s prosecutorial misconduct claim


fails. Emery, 174 Wn.2d at 761, 764.

        1:     Unfavorable Characterization of Defendants -


        Lewis and Mickelson argue that the prosecutor' s characterization of defendants and


defense witnesses as part of the " underbelly of society" and the type of people who don' t have

jobs, drink all day, and don' t like cops was ( 1) based on facts not in the record and ( 2)

constituted a personal opinion. We hold that the prosecutor' s comments represented


impermissible personal opinions, but that Lewis and Mickelson' s failure to object waived their

claims because the misconduct was not so flagrant that it could not have been cured by an

instruction.




                                                           4
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


                      a.      Improper Arguments


           In closing argument, the prosecutor stated:

                      T] hese people don' t live under the same rules of society, the same way that
           most of us            This is kind of the underbelly of society. I don' t mean that in
                               live....
            a          It' s just a side of society that I' d suspect that most of you don' t see
                bad way.
           very often. We see it all the time, but you don' t....
              These are people that don' t have jobs. They work under the table. They live
           hand to mouth. They are engaged in drinking all day. They get upset with one
           another. They fight. That is -he type of people that we' re talking about.
                                           t

                 The        other part of   that   could    be ...
                                                    is that that part of society doesn' t like cops
            I don' t like the cops no matter what. And that' s this part of society.

RP at 1477 -78.


            Contrary to Lewis and Mickelson' s argument, most of the prosecutor' s challenged

comments were based on facts in the record. The defendants' drinking habits in general and on

the night of the assault are included in the record. Neither defendant was employed at the time

of   the   assault         in December    of   20 1. 1.   Testimony at trial indicated that the assault in question

ended only when Lewis warned that the police were coming, which might support the reference

to defendants' distrust of police. The references to the defendants' and witnesses' drinking

habits, employment status, and attitudes toward police were reasonable inferences from these

facts.


            However, the prosecutor' s characterization of defendants as belonging to the " underbelly

of society" and a " side of society" that courts and prosecutors " see it all the time" is improper.

RP at 1477 -78. The record does not reflect the existence of any " underbelly of society" nor

whether         the   prosecutor and court sees "[              this   side of   society]   all   the time."   RP at 1478.


Therefore, the prosecutor' s statements risk calling the jury' s attention to matters it cannot

consider. See Warren, 165 Wn.2d at 44 ( holding that a prosecutor' s reference to facts not in the

record      is improper because it             allows     the   jury to   speculate on      facts   not   before it); Smith, 104
                                                                          5
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


Wn.2d at 510 -11 ( holding that a prosecutor can question the veracity of witnesses, but cannot

express a personal opinion to do so).


          Further, it is misconduct for a prosecutor to state a personal belief as to the credibility of

witnesses.     Warren, 165 Wn.2d at 30. Instead of being based on the evidence, the prosecutor' s

statements about Lewis, Mickelson and their witnesses represented the prosecutor' s personal


opinions. His characterization that they were part of the " underbelly of society" conveyed his

opinion that Lewis, Mickelson and their witnesses were not credible because of the " type of


people" they were. RP at 1477 -78.

          Finally, describing defendants and witnesses as part of an " underbelly of society" also

appears to be the type of "epithetical reference" courts have held improper. In State v. Wilson,

the   prosecutor referred      to the defendant           by   a   declaration, " ` to call [ defendant] a beast would


insult the   entire animal      kingdom.' "         16 Wn.         App. 348,      357, 555 P. 2d 1375 ( 1976). The court


held that the remark was a derisively epithetical reference and expression of personal belief that

was   improper.    Wilson, 16 Wn. App. at 357.

          Nevertheless, the State argues that the statements Were justified because they were in

 direct   response   to Mickelson'          s   closing   argument."           Br.   of   Resp' t   at   11.   We disagree. Lewis' s


and Mickelson' s counsel referred to Abbett as a liar several times, which the State argues


prompted the prosecutor' s attack on defense credibility. Just before the allegedly improper

remarks were made         by the      prosecutor,     Mickelson'           s   defense     counsel asked, "[       W]hy does it matter

who    has   a regular   job   at   Jaime   Hadley' s house? Why does                     that   matter ?"      RP at 1459. This latter


statement may have permitted the prosecutor to argue inferences from the evidence regarding the

fact the defense     witnesses       did    not   have jobs. "       Remarks of the prosecutor, even if they are

improper, are not grounds for reversal if they were invited or provoked by defense counsel and

                                                                       6
No. 43658 -2 -I1, consolidated with No. 43748 -1 - II



are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are

so prejudicial   that   a curative   instruction   would   be ineffective." State v. Russell; 125 Wn.2d 24,


86, 882 P. 2d 747 ( 1994).     However, an attack on the credibility of the State' s key witness does

not permit the prosecutor to attack defense witnesses' credibility with personal characterizations

regarding the " type of people" they are. RP at 1478.

                 b.     Waiver


         Because Lewis and Mickelson did not object to the prosecutor' s statements at trial, they

must show that the misconduct was " so flagrant and ill intentioned" that no curative instruction

could   have   eliminated   any resulting   prejudice.     Emery,    174 Wn.2d   at   760 -761.   We hold that the


prosecutor' s comments, although improper, did not rise to the level of reversible misconduct.


         Lewis and Mickelson could have proposed an instruction directing the jury to disregard

the prosecutor' s personal opinions. The trial court already had instructed the jury that the

lawyers' statements and arguments were not evidence and that the jury must render its verdict

based solely upon the evidence presented at trial. This instruction helped to minimize any

prejudice the unfounded inferences          may have     caused.    Emery,174 Wn.2d        at   764 & n. 14 ( courts


presume   that juries follow the      court' s   instructions);   State v. Anderson, 153 Wn. App. 417, 428,

220 P. 3d 1273 ( 2009). Mickelson argues that an instruction would not have cured the prejudice


because of the rampant nature of the misconduct. But the prosecutor' s comments were brief and


isolated, and Lewis and Mickelson do not explain why a curative instruction could not have

eliminated any prejudice resulting from them.

         Because Lewis and Mickelson have not shown that the prosecutor' s improper remarks


created prejudice that an appropriate instruction could not have cured, we hold that they waived




                                                            7
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


their prosecutorial misconduct claims based on the " underbelly of society" and related

comments.




        2.      Reference to Absence of Statements


        Lewis and Mickelson argue that the prosecutor violated their right to remain silent by

commenting on their failure to give statements. We hold that the prosecutor' s comments

represented an impermissible reference to silence, but also hold that Lewis and Mickelson were

required to show prejudice because the prosecutor did not suggest that silence should be used as

substantive evidence of guilt. We further hold that Lewis and Mickelson' s failure to object

waived their claims because the misconduct was not so flagrant that it could not have been cured


by an instruction.

               a. '   Improper Arguments


         The Fifth Amendment to the United States Constitution              states   that "[   n] o person ...   shall




be   compelled   in any   criminal case   to be   a witness against   himself." Article I, section 9 of the


Washington State Constitution       states   that "[   n] o person shall be compelled in any criminal case to

give evidence against himself."      Both provisions guarantee a defendantthe right to be free from


self incrimination, including the right to silence. State v. Knapp, 148 Wn. App. 414, 420, 199
     -

P. 3d 505 ( 2009).    The State violates this right when it uses the defendant' s constitutionally

permitted silence as substantive evidence of guilt. State v. Burke, 163 Wn.2d 204, 217, 181 P. 3d

 1 ( 2008).   More specifically, the State cannot elicit comments from witnesses or make closing

arguments that infer guilt from the defendant' s silence. State v. Easter, 130 Wn.2d 228, 236, 922

P. 2d 1285 ( 1996).


         Nevertheless, under certain circumstances a defendant' s silence can be used for

impeachment purposes. Easter, 130 Wn.2d at 237. When the defendant testifies at trial he or

                                                           8
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


she can be impeached based on silence under certain circumstances. Burke, 163 Wn.2d at 217.

 Common law traditionally has allowed witnesses to be impeached by their previous failure to

state a   fact in    circumstances           in   which   that fact naturally       would   have been   asserted. "'   Jenkins v.


Anderson, 447 U. S. 231, 239, 100 S. Ct. 2124, 65 L. Ed. 2d 86 ( 1980). However, in Burke, our


Supreme Court held that only the defendant' s silence before arrest and before issuance of

Miranda' warnings can be used for impeachment. Burke, 163 Wn.2d at 217. Further, our

Supreme Court has cautioned that a defendant' s testimony at trial does not automatically mean

that commentary on his or her pre -arrest silence constitutes impeachment. Burke, 163 Wn.2d at

215 -16.


            If the State improperly refers to a defendant' s silence, the type of reference determines

the standard of review. Burke, 163 Wn.2d at 216. Our Supreme Court has distinguished

between      a " comment[ ]"            on   the constitutional    right   to   remain silent and a " mere reference[ ]"            to


silence. Burke, 163 Wn.2d at 216. A comment involves use of silence either as substantive


evidence of guilt or to suggest that the defendant' s silence was an admission of guilt. State v.

Letivis, 130 Wn.2d 700, 707, 927 P. 2d 235- (1996).                        Such a comment violates the -
                                                                                                       United States


and Washington constitutions, Conversely, a prosecutor' s statement will not be considered a

comment on          the   right   to   remain silent      if " standing
                                                               `           alone, [    it] was so subtle and so brief that [ it]


did   not   naturally     and     necessarily      emphasize     defendant'     s   testimonial   silence.' "   Burke, 163


Wn.2d       at   216 ( alterations in        original) ( internal quotation marks omitted) (            quoting State v. Crane,

16 Wn.2d 315, 331, 804 P. 2d 10 ( 1991)).                      A mere reference to silence is not reversible error


absent a showing of prejudice. Burke, 163 Wn.2d at 216.




  Miranda v. Arizona, 384 U. S. 436, 444, 86 S. Ct. 1602, 16L. Ed. 2d694 ( 1966).
                                                                     9
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


       Lewis and Mickelson both testified at length at trial in support of their self -
                                                                                      defense


theory. During rebuttal, the prosecutor pointed out that Lewis and Mickelson (and Hadley) had

never given statements to the police:


                 Think    about   the   violence of     the    scene.   Think about the mindset of Mr.
        Abbett in that    situation.     He    says   he didn' t hit    anyone      really.      These guys don' t
        have any injuries. Now, he gave two statements to the police and did a defense
        interview.   So [ Mickelson' s defense counsel] wants to criticize, why did I spend
        so much    time with these defendants dissecting what they said.    Because they' ve
        never said   it before.    I don' t have something to           pin   them    down       on,   do I? I don' t
        have a transcript to go, didn' t you say at page 3, line 12, six months ago that this
        happened? Did I have that ability? I didn' t.                 Why didn' t      I?    Because they never
        gave statements.

                 Hadley never gave a statement. Mickelson never gave a statement. These
        witnesses never gave        a statement       to the   police, either.       So he wants to criticize
        that.   But it is my job to     pin   down their   And I have to do that in my
                                                               statements.

       job, because they never spoke about these events. Because this was the first time,
       wasn' t it? The first time anyone heard this story.




RP at 1483 -84 ( emphasis added).


        These   arguments    did touch    on   Lewis'    s and     Mickelson' s     right   to   remain silent.'   But the


prosecutor was not arguing that the absence of statements should be used as substantive evidence

of guilt or that guilt could be inferred from the silence. Instead, he was suggesting that Lewis' s

and Mickelson' s testimony was not credible because it was invented for trial. The prosecutor

compared the credibility of the victim, who told a consistent version of facts to the police and to

defense counsel, with the credibility of Lewis and Mickelson, who presented their self defense
                                                                                       -

story for the first time on the stand. As a result, this argument was akin to using silence for

impeachment purposes.


        However, Burke indicates that even impeachment is improper for silence occurring after

Miranda   warnings are given, even        if the defendant testifies          at   trial. 163 Wn.2d at 217. Here, the




  The prosecutor did not explicitly mention Lewis. But the prosecutor used the pronoun " they"
referring to the defendants       and stated   that " they     never gave statements."            RP at 1483 -84.
                                                              10
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


reference to the failure to give statements was not limited to the pre -arrest period. Accordingly,

we hold that the prosecutor' s argument was improper. On the other hand, because the prosecutor

did not invite the jury to use the absence. of statements as substantive evidence of guilt and

because the argument was subtle and brief, we hold that the prosecutor' s argument was a " mere

reference" to silence rather than a comment.


             b.     Waiver


        Because the prosecutor constrained his argument to impeachment purposes and did not


invite the jury to conclude.that Lewis and Mickelson were guilty because they invoked their right

to silence, his misconduct is not reversible error absent a showing of prejudice. Bunke, 163

Wn.2d at 216. As discussed above, in the context of prosecutorial misconduct not objected to at


trial, a defendant waives any argument unless the misconduct was so flagrant or ill intentioned

that no curative instruction could have eliminated the prejudice. Emery, 174 Wn.2d at 760 -761.

We hold that the prosecutor' s comments, although improper, did not rise to the level of

reversible misconduct.




        Tirst, the prosecutor' s remarks about the failure to give statements were not particularly

flagrant. The prosecutor did not emphasize Lewis' s and Mickelson' s silence, and his reference

to silence was indirect, subtle, and brief. Placed in the context of the entire argument, the


statements were very close to being innocuous.

        Second, Mickelson argues that a curative instruction would not have cured any prejudice

because the misconduct was rampant, but as discussed above we do not find this misconduct to

be flagrant. Other than this argument, Lewis and Mickelson have not attempted to explain why

an appropriate    instruction   could not   have   cured   any potential   prejudice.   A curative instruction


would   be particularly   effective   in this   context, where "[   m] ost jurors know that an accused has a


                                                           11
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


right to remain silent and, absent any statement to the contrary by the prosecutor, would probably

derive   no   implication     of guilt   from   a   defendant'   s silence."   Lewis, 130 Wn.2d at 706.


         Because Lewis and Mickelson have not shown that the prosecutor' s improper remarks

created prejudice that an appropriate instruction could not have cured, we hold that they waived

their prosecutorial misconduct claims based on the reference to their silence.


         3.     Alleged " False Choice" Statement

         Lewis3
                     argues   that the   prosecutor     improperly     created a "[   f]alse [ c] hoice" by implying that

the jury had to choose between believing Abbett or believing Lewis and Mickelson, and that the

jury could find Lewis not guilty only if it did not believe Abbett. Br. of Appellant (Lewis) at 11-

13.   He also argues that the prosecutor misstated the jury' s role and minimized the State' s burden

of proof by implying that the jury' s role was to determine which witnesses were telling the

 truth" and decide which version of the events is more likely true. Br. of Appellant (Lewis) at

13.   We hold that the prosecutor' s comments were improper, but that Lewis' s failure to object


waived his claim because the misconduct was not so flagrant that it could not have been cured by

an instruction.


                a.     Improper Arguments


         It is improper for a prosecutor to argue that in order to acquit a defendant, the jury must

find that the State' s witnesses are either lying or mistaken. State v. Fleming, 83 Wn. App. 209,

213, 921 P. 3d 1076 ( 1996).         A "false choice" argument misrepresents the role of the jury and the

burden of proof by telling jurors they must decide who is telling the truth and who is lying in

order to render a verdict. State v. Wright, 76 Wn. App. 811, 825 -26, 888 P.2d 1214 ( 1995). 4 The

3 Mickelson did not make this argument in his brief.
4
    Wright was superseded by statute on grounds not relevant to this case.
                                                                 12
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


choice is false because the jury' s task is not to choose between competing stories, but to

determine whether the State met its burden of proof. The jury may find that the State has not met

its burden of proof regardless of whether the jury believes the State' s witnesses or disbelieves the

defense witnesses, but the State' s " false choice" improperly suggests otherwise.

           Lewis relies on State v. Miles, 139 Wn. App. 879, 162 P. 3d 1169 ( 2007) to support his

argument that the prosecutor' s argument was improper. In Miles, the prosecutor argued that the


State and the defense had presented mutually exclusive versions of events and that, essentially,

the   jury   would    have to decide      which version of events was more credible.             139 Wn. App. at 889-

90. This court held that " to the extent the prosecutor' s argument presented the jurors with a false


choice, that they could find Miles not guilty only if they believed his evidence, it was

misconduct."         Miles, 139 Wn. App. at 890.

             Here, the prosecutor presented a false choice argument similar to that in Miles. The

prosecutor argued:



             Either you folks believe that this was an Assault in the Second Degree or it was
                  defense.
             self -            And      you   shouldn'   t consider any      other   charge.   Because either it
             happened the way that they said it happened, or it happened the way that Nate
             Abbett told you. There' s no in between.


RP    at   1392. Later, the        prosecutor argued, "     If you do not believe Mr. Abbett and you believe Mr.


Mickelson and Mr. Lewis, that they were acting in self -
                                                       defense, then you are equally obligated to

find them      not   guilty   of   anything. That'   s   this   case."   RP at 1485 -86.


             We hold that the prosecutor' s statements were improper. First, the prosecutor told the


jury that they must choose between second degree assault and self -
                                                                  defense ( which would be a

not             verdict).     But the   prosecutor   ignored the third       choice —that   Lewis and Mickelson did
      guilty


not act in self -
                defense but the State did not prove all of the elements of second degree assault.


This type of argument is improper because it minimizes the State' s burden of proof.
                                                                   13
No. 43658 -2 -II, consolidated withNo. 43748 -1 - II


         Second, the prosecutor improperly argued that the jury' s only choice was to believe

Abbett' s testimony or to believe Lewis and Mickelson' s testimony that they were acting in self-

defense. The prosecutor essentially told the jury that its role was to determine who was telling

the " truth" and base its verdict on that choice. However, the jury' s role is to determine whether

the State has met its burden of proof. Wright, 76 Wn. App. at 826. It is misleading and unfair to

make it appear that an acquittal requires the jury to conclude that the State' s witnesses are lying.

Wright, 76 Wn. App. at 824 -26. The jury is entitled to conclude that it did not necessarily

believe Lewis and Mickelson but that the State did not prove its case beyond a reasonable doubt.


See Miles, 139 Wn. App. at 890. And likewise, the jury is entitled to believe the State' s

witnesses   but    conclude   that the State did   not prove   its   case   beyond   a reasonable   doubt. Wright,


76 Wn. App. at 824 -25.

              b.      Waiver


         Because Lewis did not object to the prosecutor' s statements at trial, he must show that the

misconduct was so flagrant and ill intentioned that no curative instruction could have eliminated

the   prejudice.   Emery,     174 Wn.2d   at   760 -761. We hold that the prosecutor' s comments, although


improper, did not rise to the level of reversible misconduct.


         First, the prosecutor' s arguments were not particularly flagrant. The prosecutor did not

expressly misstate the State' s burden of proof and confirmed that the State had to meet its burden

of proof for the jury to find Lewis and Mickelson guilty. The reference to the jury having to

choose between believing Abbett and believing Lewis and Mickelson was brief and subtle and

was not the focus of the prosecutor' s argument.


          Second, Lewis does not show why an instruction would not have cured any prejudice

resulting from the prosecutor' s arguments. Here, a curative instruction could have clarified the

                                                         14
No. 43658 -2 -II, consolidated with No. 43748 -1 - II



burden of proof and the jury' s role. See Emery, 174 Wn.2d at 763 -64; Anderson, 153 Wn. App

at 432. Accordingly, we hold that Lewis waived his prosecutorial misconduct claim based on the

false choice arguments.


           B.     INEFFECTIVE ASSISTANCE OF COUNSEL


           Lewis and Mickelson argue that their counsel was ineffective for failing to object to the

prosecutor' s improper reference to their testimonial silences We disagree.


           We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on an ineffective assistance of counsel claim,


the defendant must show both ( 1) that defense counsel' s representation was " deficient" and ( 2)

that the deficient representation prejudiced the defendant. Strickland v. Washington, 466 U. S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 32 -33, 246


P. 3d 1260 ( 2011).    The failure to      show either element ends our           inquiry. Grier, 171 Wn.2d at 33.

Representation is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness.         Grier, 171 Wn.2d           at   33. Prejudice exists if there is a reasonable


probability that    except for counsel'     s    errors, the   result   of the proceeding wou      ave been


different. Grier, 171 Wn.2d at 34.


           We give great deference to trial counsel' s performance and begin our analysis with a


strong     presumption   that   counsel' s performance was reasonable.             Grier, 171 Wn.2d       at   33.    A




5 In the heading of his brief's section on ineffective assistance of counsel, Mickelson (and Lewis
adopting by reference the arguments of Mickelson) also allege that counsel' s failure to object to
the prosecutor' s closing remarks appealing to " bias" constituted ineffective assistance of counsel.
However, we do not address the allegation because they did not assign error to it, did not develop
the   argument, and    did   not cite   to the   record or   authority for    support.   See RAP 10. 3(   a)(   6).   Such

passing treatment of an issue without reasoned argument does not merit judicial consideration.
Joy   v.   Dep' t of Labor &    Indus., 170 Wn.       App.     614, 629, 285 P. 3d 187 ( 2012), review denied,
 176 Wn.2d 1021 ( 2013). Neither Lewis nor Mickelson argued that the failure to object to the
  false choice" argument constituted ineffective assistance.
                                                                15
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


claim that trial counsel provided ineffective assistance does not survive if trial counsel' s conduct

can   be   characterized as        legitimate trial strategy    or   tactic. Grier, 171 Wn.2d        at   33. To rebut the


strong     presumption      that   counsel' s performance was effective, "           the defendant bears the burden of


establishing the absence of any ` conceivable legitimate.tactic explaining counsel' s

performance.' "        Grier, 171 Wn.2d         at   42 ( emphasis in       original) (   quoting State v. Reichenbach,

153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).

            The decision       of when or whether        to   object   is   a classic example of   trial tactics."   State v.


Madison, 53 Wn.         App.       754, 763, 770 P. 2d 662 ( 1989).           For example, counsel may decide not to

object to avoid the risk of emphasizing damaging evidence. In re Pers. Restraint ofDavis, 152

Wn.2d 647, 714, 101 P. 3d 1 ( 2004). Therefore, we presume that " the failure to object was the


product of legitimate trial strategy or tactics, and the onus is on the defendant to rebut this

presumption."         State   v.   Johnston, 143 Wn.      App.    1, 20, 177 P. 3d 1127 ( 2007). In order to show


that defense counsel was ineffective for failing to make a particular objection, the defendant

must show      that   not   objecting " fell below prevailing          professional norms."        Davis, 152 Wn.2d at




           Lewis and Mickelson argue that their counsel was ineffective for failing to object to the

prosecutor' s improper closing argument that referenced their testimonial silence. We have held

that the prosecutor' s reference to the absence of statements from Lewis and Mickelson

arguments was improper. However, we hold that counsel' s failure to object to the absence of


statements was not deficient because it may have involved legitimate trial strategy.

            Counsel may not have wanted to object to the prosecutor' s reference to the absence of

statements in order to avoid emphasizing the fact that Lewis and Mickelson did not tell the police

that they acted in self -
                        defense. An objection may have called the jury' s attention to their silence

                                                                 10
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


and triggered the type of negative inference of guilt that the prosecutor did not argue. Because

the prosecutor' s reference to silence was subtle and so brief, counsel may have hoped that Lewis

and Mickelson' s testimonial silence would escape the jury' s attention. We hold that counsel

performance was not deficient in failing to object. Accordingly, Lewis' s and Mickelson' s

ineffective assistance of counsel claims fail.


C.             CUMULATIVE ERROR


           Lewis and Mickelson next argue that they are entitled to relief under the cumulative error

doctrine. They argue that even if each of the alleged are does not support reversal, the

accumulation of the errors denied their right to a fair trial. We disagree.

               The cumulative error doctrine applies where " there have been several trial errors that


standing alone may not be sufficient to justify reversal but when combined may deny a defendant

a   fair trial." State    v.   Greiff, 141   Wn.2d 910, 929, 10 P. 3d 390 ( 2000). " The defendant bears the


burden of proving an accumulation of error of sufficient magnitude that retrial is necessary."

State     v.   Yarbrough, 151 Wn.      App. 66,    98, 210 P. 3d 1029 ( 2009). " Where no prejudicial error is


shown to have occurred, cumulative error cannot be said to have deprived the- defendant of a fair

trial."    State v. Price, 126 Wn. App. 617, 655, 109 P. 3d 27 ( 2005).

               Here, we have found that the prosecutor' s arguments were improper in three instances,

but that Lewis and Mickelson waived their prosecutorial misconduct claims. Moreover, they

have not shown that the improper arguments prejudiced them. And even taken together, the


improper arguments are not of sufficient magnitude to deny Lewis and Mickelson a fair trial.

Therefore, we hold that Lewis and Mickelson failed to show cumulative error warranting

reversal of their convictions.




                                                            17
No. 43658 -2 -II, consolidated with No. 43748 -1 - II


D.      MICKELSON' S SAG


        In his SAG, Mickelson alleges that there were x -rays of his ribs taken at the Thurston


County jail, " key evidence" in his opinion, which should have been produced at trial but was not.

He appears to suggest that his counsel' s failure to offer these x -
                                                                   rays as evidence in support his


self -
     defense theory constitutes ineffective assistance of counsel. We reject this argument.

        As noted above, to prevail on an ineffective assistance of counsel claim, the defendant


must show that defense counsel' s performance was objectively deficient and that the

performance prejudiced     him. Grier, 171 Wn.2d      at   32 -33. Mickelson asserts that the x -
                                                                                                rays were


taken for an injury that occurred when Abbett hit him with his car, but there is no evidence in the

record that the x -
                  rays exist, show any such injury, or would have favored Mickelson' s self-

defense theory. Because there is no evidence in the record upon which to base review of

Mickelson' s allegation, we cannot consider it on direct appeal. State v. We, 138 Wn. App. 716,

729, 158 P. 3d 1238 ( 2007) ( claims based on evidence outside the record must be pursued


through   a personal restraint petition);   see also State v. McFarland, 127 Wn.2d 322, 335, 899


P. 2d -
      1251 ( 1995). - -


        Mickelson also alleges that the trial court' s bailiff violated due process by checking the

crime scene for glass at the request of the jury during their deliberations. We cannot consider

matters outside the record on direct appeal. McFarland, 127 Wn.2d at 335; We, 138 Wn. App. at

729. The record does not reflect any indication that the bailiff checked on the crime scene and

then communicated her findings to the jury. Mickelson' s allegation in this part of the SAG

appears to have no basis in the record, so we cannot review it.




                                                     18
No. 43658 -2 -II, consolidated with No. 43748 -1 - 11


        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 pursuant to RCW 2. 06. 040, it is

so ordered.




                                                        MAxA, J.
                                                                                it
We concur:




 OHANSON, A.U. J.




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