       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                      ]
                                                 DIVISION ONE
                     Respondent,          ;
                                                 No. 70711-6-1                    CJt


            w
            v.                            i
                                                 PUBLISHED OPINION
ANDREA MARIE RICH,                        ]

                     Appellant.           ;      FILED: March 23, 2015
                                                                                  9?
                                                                                  en



       Dwyer, J. — A jury found Andrea Rich not guilty of possession of a stolen

vehicle but guilty of driving under the influence and reckless endangerment. Rich

appeals, alleging various forms of trial court error and prosecutorial misconduct

and asserting that insufficient evidence was adduced to support her reckless

endangerment conviction. Because the State failed to prove beyond a

reasonable doubt that Rich recklessly engaged in conduct that created a

substantial risk of death or serious injury to another person, the reckless

endangerment conviction must be vacated. In all other respects, the judgment is

affirmed.

                                          I


       One evening in May 2012, Yared Metafaria stopped by a friend's

restaurant in Seattle to play pool. He parked his car, an Acura MDX, with the

back window partially open and inadvertently left a set of keys inside the car.
No. 70711-6-1/2



When Metafaria left the restaurant a few hours later, the car was gone. He called

the police and reported that his car had been stolen.

       About a week later, at approximately 8:00 p.m. on May 27, 2012, Deputy

Paul Mulligan of the King County Sheriff's Office was on patrol in Burien. Deputy

Mulligan learned that the stolen Acura had been spotted in the vicinity and was

"on the lookout" for it as he drove. He then saw the Acura pass him in the

adjacent lane. The deputy was traveling with the "flow of traffic" at "about 35"
miles per hour when the Acura passed his vehicle. He pulled his patrol car into
the Acura's lane of travel and sped up to "about 50" miles per hour in order to

catch up to the Acura. Deputy Mulligan followed the car for four blocks,
whereupon it pulled into the parking lot of an apartment complex. After the driver
of the Acura parked, Deputy Mulligan turned on his emergency lights and pulled
in behind the Acura.

       The Acura's operator opened the car door. Deputy Mulligan got out of his
car, but waited for backup before approaching the Acura. He heard the female
driver, later identified as Andrea Rich, say in a "loud voice" to the passenger, "tell
them we just found the keys and we just got in the car." The deputy could not
see the passenger, whom police officers later described as a seven to nine-year-
old boy. After a second police officer arrived, Deputy Mulligan arrested Rich.
       The officers who interacted with Rich at the time of her arrest noticed a

strong odor of alcohol and observed signs of intoxication, including bloodshot,
watery eyes and slurred speech. Because Rich was wearing a leg brace, police
 officers did not administer field sobriety tests. Breath alcohol tests, administered
No. 70711-6-1/3



at a police station approximately an hour after Rich's arrest, revealed alcohol

concentration levels of .183 and .188.

       Rich admitted to police officers that she had consumed one shot of

alcohol. She also said the Acura belonged to her boyfriend, Mohamed, who had

given her the keys. Rich could not provide a last name, or any other information,
about Mohamed. Rich first denied having been in a stolen car, then said she did

not know the car was stolen, and finally said it was somehow the child's fault.

       The State initially charged Rich with a gross misdemeanor, driving under
the influence (DUI), and a felony, possession of a stolen vehicle. The State later
amended the information to add a second gross misdemeanor charge of reckless

endangerment.

       At trial, Rich testified that she wasjust getting into the car when the police
officer pulled up behind her. She said her nephew had brought the keys to her
just before the police arrived. Rich testified that she had consumed one or two
shots of alcohol, but claimed she was not affected by the alcohol she had
consumed. Rich maintained that Metafaria was a man whom she knew as

Mohamed, and related a confusing account of how she met him and how he left
his car in her possession. Rich claimed that she was waiting for Mohamed to
 pick up the car when the police arrested her. Rich further testified that she had
 arranged for Mohamed to pick up the car by telephone calls and text messages,
 but that she no longer possessed the cell phone she had used to communicate
 with him.

        Metafaria, on the other hand, testified that he did not know Rich.
No. 70711-6-1/4



      The jury found Rich guilty of DUI and reckless endangerment but

acquitted her of possession of a stolen vehicle. By special verdict, the jury found

that Rich's alcohol concentration level was "0.15 or higher within two hours after

driving." Rich appeals.

                                         II

       Rich contends that the State failed to prove the elements of reckless

endangerment. The reckless endangerment statute, RCW 9A.36.050, provides
as follows:

       (1) A person is guilty of reckless endangerment when he or she
       recklessly engages in conduct not amounting to drive-by shooting
       but that creates a substantial risk of death or serious physical injury
       to another person.

              (2) Reckless endangerment is a gross misdemeanor.
       Another provision in the criminal code, RCW 9A.08.010, defines levels of
culpability, including recklessness. RCW 9A.08.010 provides, in relevant part:
               (c) RECKLESSNESS. Aperson is reckless or acts recklessly
       when he or she knows of and disregards a substantial risk that a
       wrongful act may occur and his or her disregard of such substantial
       risk is a gross deviation from conduct that a reasonable person
       would exercise in the same situation.

       In accordance with these statutes, the trial court provided the following

unchallenged instructions to the jury:

               Aperson commits the crime of reckless endangerment when
        he or she recklessly engages in conduct that creates a substantial
        risk of death or serious physical injury to another person.

 Instruction 16.

               To convict the defendant of the crime of reckless
        endangerment, each of the following elements of the crime must be
        proved beyond a reasonable doubt:
No. 70711-6-1/5




              (1) That on or about May 27, 2012, the defendant acted
       recklessly;

            (2) That such reckless conduct created a substantial risk of
      death or serious physical injury to another person; and

              (3) That this act occurred in the State of Washington.

              If you find from the evidence that each of these elements
       has been proved beyond a reasonable doubt, then it will be your
       duty to return a verdict of guilty.

             On the other hand, if, after weighing all of the evidence, you have a
       reasonable doubt as to any one of these elements, then it will be your duty
       to return a verdict of not guilty.

Instruction 17.

              This instruction applies to the crime of reckless
       endangerment.

            A person is reckless or acts recklessly when he or she
       knows of and disregards a substantial risk that death or serious
       physical injury may occur and this disregard is a gross deviation
       from conduct that a reasonable person would exercise in the same
       situation.

              When recklessness as to a particular fact or result is
       required to establish an element of a crime, the element is also
       established if a person acts intentionally or knowingly as to that fact
       or result.

Instruction 18.

                  Physical injury means physical pain or injury, illness, or an
       impairment of physical condition.

Instruction 19.

       The trial court also instructed the jury:

                  Aseparate crime is charged in each count. You must decide
       each count separately. Your verdict on one count should not
       control your verdict on any other count.
No. 70711-6-1/6



Instruction 11.

       When reviewing a sufficiency of the evidence challenge, "'the relevant

question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of factcould have found the essential elements of

the crime beyond a reasonable doubt'" State v. Green. 94 Wn.2d 216, 221, 616

P.2d 628 (1980) (quoting Jackson v. Virginia. 443 U.S. 307, 319, 99 S. Ct. 2781,

61 L. Ed. 2d 560 (1979)). A claim of insufficiency admits the truth of the State's

evidence and all inferences that reasonably can be drawn therefrom. State v.

Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       "The purpose of this standard of review is to ensure that the trial court fact
finder 'rationally appl[ied]' the constitutional standard required by the due process

clause of the Fourteenth Amendment, which allows for conviction of a criminal

offense only upon proof beyond a reasonable doubt." State v. Rattana Keo
Phuong. 174 Wn. App. 494, 502, 299 P.3d 37 (2013) (alteration in original)
(quoting Jackson, 443 U.S. at 317-18). The standard of review is also designed
to ensure that the fact finder at trial reached the "subjective state of near

certitude of the guilt of the accused," as required by the Fourteenth Amendment's
proof beyond a reasonable doubt standard. Jackson. 443 U.S. at 315.
       Thus, as instructed, the State was required to establish beyond a

reasonable doubt that Rich (1) acted recklessly, in other words, that she knew of
and disregarded a substantial risk of death orserious physical injury, (2) that her
conduct was endangering because it created a substantial risk of death or
serious injury, and (3) that she endangered another. Rich concedes that her
No. 70711-6-1/7



conviction was premised on the conduct of driving. She argues that the State

failed to prove that her driving created a substantial risk of death or serious

physical injury to another.

       At trial, the State advanced the theory that Rich committed reckless

endangerment because she "drove a stolen car while she was drunk, with a little
kid in the front seat." The State relied on evidence that Rich drove the Acura

while intoxicated to establish that she acted recklessly and that her conduct

endangered another.

              So, let's look at what evidence supports that she was acting
       recklessly on May 27th. We already talked about the fact that the
       defendant was driving drunk. She is driving drunk in a stolen car.
       She is driving drunk in a stolen car with the little boy in the front
       passenger seat.

              Now, as we talked about during voir dire, we have a high risk
       of accident when people are driving drunk, and that people can be
       injured or physically seriously injured if you are in a caraccident.
       That is what you are here to decide. What would a reasonable
       person do? Areasonable person would not drive drunk. A
       reasonable person wouldn't drive a stolen car. A reasonable
       person certainly wouldn't drive drunk in a stolen car with a little kid
       in the front seat. This kid is only seven or eight years old.

               So, this is a gross deviation of conduct ofwhat a reasonable
        person would do. This is recklessness. And this reckless conduct
       creates a substantial risk of death or physical injury.

                 Driving drunk in a stolen car, the defendant put herself and
        that little boy in a chance of having an accident. And by being in
        the front passenger seat, he is in more danger than in the backseat
        where he is supposed to be. She put that child at substantial risk of
        death or serious injury.

               She is also putting other people driving on Ambaum that
        night along the sidewalk at physical risk, and including herself at
        great risk of physical injury. Shewas putting that little boy in
        danger, and other people driving that night. She was driving. .183
        and .188.
No. 70711-6-1/8




       As below, in its argument on appeal, the State conflates the culpability,

conduct, and victim elements of reckless endangerment. The State suggests

that because Rich operated a vehicle while legally intoxicated in violation of the

DUI statute, her conduct also satisfies the elements of reckless endangerment.

The State also points to the following pieces of "additional evidence" that would

support a finding that Rich's conduct created a substantial risk of death or

serious physical injury: (1) Rich endangered a passenger and motorists on a

"major public roadway," (2) she was heavily intoxicated, and (3) she exceeded

the speed limit.1 See Resp't's Supp. Br. at 4.

       The reckless endangerment statute proscribes only endangering conduct

that places another person at substantial risk. State v. Graham, 153 Wn.2d 400,
406, 103 P.3d 1238 (2005). On the one hand, the presence ofa passenger in
the vehicle satisfies the victim element of the crime, but is not itself the

endangering conduct. On the other hand, the State's suggestion that the trier of
fact could have relied on the presence of others—motorists or pedestrians—to

satisfy the victim element is wholly unsupported. The State did not specifically
charge Rich with endangering other drivers or pedestrians. The amended
information alleged that Rich "did recklessly engage in conduct which did create
a substantial risk of death and serious physical injury to another person by


        11t bears mentioning thatthe additional facts cited by the State are largely taken into
account in assessing the appropriate sentence for DUI. The DUI sentencing statute differentiates
between alcohol concentration levels above and below 0.15. RCW 46.61.5055. The statutealso
imposes a mandatory ignition interlock requirement, additional imprisonment, and sets specific
monetary fines if a person convicted of DUI has a passenger under the age of 16 years old in the
vehicle. RCW 46.61.5055(6). And the presence of any passenger is a factor the court is authorized
to consider in formulating an appropriate DUI sentence. RCW 46.61.5055(7).
                                                  8
No. 70711-6-1/9



driving in a manner likely to endanger a passenger or another." However, the

State offered no evidence whatsoever about the presence of other vehicles,

motorists, or pedestrians, nor any evidence about the type of road or traffic

conditions.

      As for the State's reliance on evidence of Rich's intoxication to establish

both her culpable mens rea and endangering conduct, the State exaggerates

and, to a certain extent, misrepresents the evidence. The police officers who

interacted with Rich when she was arrested testified that she exhibited signs of

intoxication. Deputy Mulligan and Officer Copeland believed Rich was

intoxicated because of her abnormally loud voice and speech patterns, the

appearance of her eyes, the odor of alcohol, and her demeanor. The officers
also observed that Rich had some difficulty walking unassisted, but were unsure

to what extent that was due to her apparent leg injury and brace. Trooper Jon

Liefson said that Rich's coordination was "poor" because she had a "hard time"

gathering pieces of paper he asked for and described her intoxication as
"obvious," rather than "extreme." But contrary to the State's characterization,
none of these witnesses described severe incapacitation or incoherence.

       The State further insists that the toxicologist testified about the manner in

which Rich's specific alcohol concentration level would have affected her
coordination, response time, and other abilities relevant to driving. This is
 inaccurate. The toxicologist described alcohol generally as a "central nervous
 system depressant." He also said that a person under the influence "may . ..
 exhibit coordination problems, where they may have difficulty maintaining their
No. 70711-6-1/10



balance standing upright completely. They may have problems grabbing for an

object, such as a driver's license, seatbelt, for instance." He testified that

"different individuals will be affected in different degrees." When asked about the

level of alcohol that will affect a person, the toxicologist answered in general

terms, not with regard to Rich's particular situation or blood alcohol level.

       [A]ny alcohol in the system has a potential to affect the individual.
       As far as their ability to operate a motor vehicle safely, an
       individual, once they reach 0.08, has [a] sufficient amount of
       alcohol to be unable to operate a motor vehicle in a safe manner.

       Insofar as the State maintains that a jury could have inferred a substantial

risk of death or injury from the evidence about Rich's driving, only Deputy
Mulligan observed Rich drive. He did not indicate that Rich's manner of driving
posed any danger or caused him to suspect that Rich was impaired. And even if
the jury could infer from Deputy Mulligan's testimony that Rich exceeded the
posted limit by some amount less than 15 miles per hour, the deputy followed
Rich because he believed the car was stolen, not because of speeding or for any

reason related to the manner in which the Acura was being operated. This

evidence would not, therefore, allow a trier offact to conclude that Rich's speed
created a substantial risk of death or serious physical injury.

        Rich analogizes to cases interpreting crimes under the motor vehicle
code, Title 46 RCW. These cases establish that evidence of the intoxicated
condition of a driver is insufficient to prove reckless or negligent driving. See
State v. Amurri, 51 Wn. App. 262, 265, 753 P.2d 540 (1988) ("Driving an
 automobile under the influence of intoxicants does not, in and of itself, constitute

 reckless driving."); Citv of Bellevue v. Redlack, 40 Wn. App. 689, 694, 700 P.2d
                                           10
No. 70711-6-1/11



363 (1985) (while proof of intoxication is required to establish DUI, "such proof

alone does not warrant a conviction for negligent driving"). These cases

interpreting different statutory elements inform, but do not control, our

construction of the reckless endangerment statute.

       Nevertheless, Rich's argument raises two important points. First, "[t]o

sustain a charge of reckless endangerment, there must be proof of the creation

of a substantial risk of death or serious physical injury to another person" and the

risk must be an actual one. State v. O'Neal. 23 Wn. App. 899, 903, 600 P.2d 570

(1979). Thus, in O'Neal, the court observed that conduct which might be
sufficient to establish assault, for instance, discharging a weapon while intending

to kill or injure but mistakenly believing the weapon was loaded, would not be
sufficient to establish reckless endangerment. 23 Wn. App. at 903. Here, this
means that the State had to prove that the risk created by Rich's conduct was not

merely hypothetical or conjectural.
       Second, there is no "per se" liability for reckless endangerment based on
proof of violation of the DUI statute. The analysis of a Pennsylvania appellate
court interpreting a statute similar to Washington's illustrates this point. In that
case, Commonwealth v. Mastromatteo, 719 A.2d 1081 (Pa. Super. 1998), police
officers conducted a traffic stop and discovered an intoxicated driver and a young
 passenger. After a bench trial, the court convicted the driver of reckless
endangerment and DUI. On appeal, the driver challenged the sufficiency of the
 evidence supporting her reckless endangerment conviction.



                                           11
No. 70711-6-1/12



       The court rejected the State's argument that reckless endangerment

liability could rest solely upon evidence of the driver's intoxication.

Mastromatteo. 719 A.2d at 1082. A reckless endangerment conviction under

Pennsylvania law requires proof that the defendant's conduct caused a

"substantial risk" of death or serious bodily injury and the trier of fact could not

infer a risk of the degree legally necessary to support a conviction based on the

driver's legal intoxication alone. Mastromatteo. 719 A.2d at 1083-84. The
commonly-known fact that intoxicated drivers are, as a whole, at a greater risk
than sober ones, was insufficient to establish that the risk was a substantial one.

Mastromatteo. 719 A.2d at 1084. The court noted its obligation to ensure that

criminal offenses are not interpreted to encompass acts beyond the scope

intended by the legislature:

       [Njeither do we favor attempts of zealous prosecutors and the
       judiciary to expand criminal definitions to encompass criminal
       conduct which the offense was not designed for, nor the
       supplanting of the democratic process that such a practice involves.
       If the penalties for DUI are thought of as too lenient then the
       legislature can increase them. If there should be additional
       offenses tied to DUI, say DUI with a passenger, then they likewise
       can be implemented by the legislature through the democratic
       process. However, we are unwilling to impose such value
       judgments upon the citizens ofthe Commonwealth by shoehorning
       conduct into the somewhat broad definitions of certain criminal
       offenses.

Mastromatteo. 719 A.2d at 1084.

        The authority to define the elements ofa crime "rests firmly with the
legislature." State v. Torres Ramos. 149 Wn. App. 266, 271, 202 P.3d 383
 (2009): accord State v. Evans. 154 Wn.2d 438, 447 n.2, 114 P.3d 627 (2005).
The legislature may establish "per se" criminal liability for specific conduct. For
                                           12
No. 70711-6-1/13



example, our DUI law includes an "illegal per se" provision. State v. Franco. 96

Wn.2d 816, 820, 639 P.2d 1320 (1982). One alternative method of committing

the crime is to have an alcohol concentration level of 0.08 or higher within two

hours of driving. RCW 46.61.502(1 )(a). Rather than creating a presumption of
impairment, the "per se" prong ofthe DUI statute defines the crime in these
specific terms. Franco. 96 Wn.2d at 821. However, the legislature has not
established per se liability for any specific conduct in enacting the reckless
endangerment statue. Instead, the statute proscribes conduct which creates a
"substantial risk of death or serious physical injury."

       Familiar interpretive principles guide our construction of this statutory

language. When interpreting a statute, our primary objective is to ascertain and
give effect to the intent of the legislature. State v. Kintz. 169 Wn.2d 537, 547,
238 P.3d 470 (2010); State v. Gonzalez. 168 Wn.2d 256, 263, 226 P.3d 131
(2010). If a "statute's meaning is plain on its face, then the court must give effect
to that plain meaning as an expression of legislative intent." Dep't of Ecology v.
Campbell &Gwinn. LLC. 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). While we may

examine "'the ordinary meaning of the language at issue, the context of the
statute in which that provision is found, related provisions, and the statutory
scheme as a whole,'" we "'must not add words where the legislature has chosen
 not to include them,'" and "must 'construe statutes such that all of the language is
 given effect.'" Lake v. Woodcreek Homeowners Ass'n. 169 Wn.2d 516, 526, 243
 P.3d 1283 (2010) (quoting State v. Engel. 166 Wn.2d 572, 578, 210 P.3d 1007



                                           13
No. 70711-6-1/14



(2009); Rest. Dev.. Inc. v. Cananwill. Inc.. 150 Wn.2d 674, 682, 80 P.3d 598

(2003)).

       The key to the analysis is the term "substantial," used in numerous

statutes, but not defined by statute.2 While the meaning of "substantial" is not

limited to a particular dictionary definition, our Supreme Court has approved of
this definition: "'considerable in amount, value, or worth.'" State v. McKague. 172

Wn.2d 802, 806, 262 P.3d 1225 (2011) (quoting Webster's Third New

International Dictionary 2280 (2002)). McKague involved the sufficiency of

the evidence to support a conviction of assault by inflicting substantial bodily
injury. Therein, the court rejected another portion of the dictionary definition
defining substantial as "'something having substance or actual existence.'"
McKague. 172 Wn.2d at 805. The court observed that under the latter definition,

"substantial" would be the practical equivalent of"any" and such a definition
would render the term meaningless. McKague. 172 Wn.2d at 806. Instead, the
court held that "substantial" "signifies a degree of harm that is considerable and
necessarily requires a showing greater than an injury merely having some
existence." McKague, 172 Wn.2d at 806.

        The State did not present evidence from which the trier of fact could infer
that Rich's driving created a risk of death orserious physical injury thatwas
considerable or substantial. No witness testified that Rich's driving specifically

           2Conversely, "physical injury" is defined by statute as "physical pain or injury, illness, or an
 impairment of physical condition." RCW 9A.04.110(4)(a).
        In State v. Pappas. 176 Wn.2d 188, 194 n.2, 289 P.3d 634 (2012), the court noted that the
phrase "serious bodily injury" is most likely equivalent to "great bodily harm" under the current code.
"Great bodily harm," in turn, means "bodily injury which creates a probability of death, or which
causes significant serious permanent disfigurement, or which causes a significant permanent loss or
impairment of the function of any bodily part or organ." RCW 9A.04.110(4)(c).
                                                      14
No. 70711-6-1/15



posed any risk or discussed generally the risk of accident, death, or injury. The

toxicologist was not asked about, and did not explain, the effects of Rich's

specific level of intoxication. The evidence that Rich was under the influence of
alcohol was not sufficient to allow the jury to conclude that her driving created the

level of risk necessary to support a reckless endangerment conviction. Merely
asking the jury to presume a fact necessary for conviction does not satisfy the
requirements of the proof beyond a reasonable doubt guarantee of the
Fourteenth Amendment's due process clause.3 The State did not meet its

obligation to prove the elements of reckless endangerment beyond a reasonable
doubt. Accordingly, we reverse the reckless endangerment conviction and
remand with instructions that it be vacated.

                                                   Ill


         Rich raises further assignments oferror. First, she contends that the
prosecutor mischaracterized her testimony and engaged in misconduct by
arguing that, in order to acquit, the jury had to conclude that the witnesses called
by the State were lying.

         After discussing the elements of each crime in closing argument, the
 prosecutor stated:

                  Now, the defendant can testify. And she told a totally
         different story. She said that the carowner—and all of the officers
         testified, Deputy Mulligan, Deputy Copeland—they just made it all
         up, everything they said was a fabrication, and only she is telling
         you the truth.



         3Indeed contrary to the trial court's instruction to the jury that, "Your verdict on one count
 should not control your verdict on any other count," Instruction 11, the State urged the jury to do just
 that.

                                                    15
No. 70711-6-1/16



The prosecutor went on to argue that Rich's story was inconsistent with the

evidence and that she was not a credible witness.

               I think when you examine the defendant's testimony, you will
       not find it credible. She gave a preposterous story. You heard the
       defendant. You have to believe that all the other witnesses came in
       here and lied. They don't have anything to gain. And hold this
       defendant accountable for the actions she chose to take.

       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.2d 1076 (1996). This type of 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 before deciding if the State
has met its burden of proof. Fleming, 83Wn. App. at 213; State v. Wright. 76
Wn. App. 811, 825-26, 888 P.2d 1214 (1995).
       Contrary to the State's contention on appeal, whether the State's
argument attrial was that the jury must conclude that the State's witnesses lied
in order to believe the defendant, or in order to acquit her, either way, the
argument was improper. Cf Wright, 76 Wn. App. at 826 (misconduct to argue
that in order to believe or acquit the defendant, jury must find the State's
witnesses lied). Here, the prosecutor did more than merely point out the obvious
inconsistency between Rich's testimony and certain aspects of Detective
 Mulligan's and Metafaria's testimony. Cf. Wright. 76 Wn. App. at 825 (nothing
 misleading or unfair in stating the obvious: that if the jury accepts one version of
 the facts, it must necessarily reject a diametrically opposed version). It was
 beyond the scope of a credibility argument to assert that in order to hold Rich

                                          16
No. 70711-6-1/17



"accountable," the jurors "would have to believe that all the other witnesses came

in here and lied." This improper argument was exacerbated by the prosecutor's

previous mischaracterization of Rich's testimony and incorrect assertion that Rich

herself testified that the other witnesses lied and that only she was telling the

truth.


         Nevertheless, improper argument does not constitute reversible

misconduct unless there is a substantial likelihood that the argument affected the

jury's verdict and the prejudicial effect of the comments could not have been

neutralized by an objection and curative instruction. State v. Emery, 174 Wn.2d

741, 760-61, 278 P.3d 653 (2012) (error waived unless prosecutor's misconduct

was flagrant and ill-intentioned such that an instruction could not have cured

resulting prejudice); State v. Thorgerson. 172 Wn.2d 438, 442-43, 258 P.3d 43
(2011) (to establish prejudice, defendant must demonstrate a substantial
likelihood that the misconduct affected the verdict). The jury instructions in this

case properly stated the burden of proof, informed the jurors that the law was

contained in the court's instructions, and instructed the jury to disregard any

comments by the lawyers that were unsupported by the evidence or the law. The
jury is presumed to follow the court's instructions and it appears that the jury did
so in this case. See State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983).

Given that the jury convicted Rich of DUI and reckless endangerment, the jurors
plainly credited the testimony of Deputy Mulligan over Rich's assertion that she
did not drive the Acura. But despite believing the version of the incident

presented by the State's witness, it is evident that the jury still held the State to


                                          17
No. 70711-6-1/18



its burden of proof when it acquitted Rich of possession of a stolen vehicle.

Therefore, although the challenged argument was improper and objectionable,

Rich was not prejudiced in any manner that could not have been neutralized by

an appropriate curative instruction.

                                                   IV


        Finally, Rich challenges the trial court's ruling allowing the State to make a

missing witness argument in closing.

        In her testimony about how she came to be arrested in the Acura, Rich

mentioned various siblings. For instance, Rich said her brothers were on their
way to the car to help with her wheelchair when she was arrested. Rich also
mentioned "a video camera of everything that was going on," although she did

not say who had the camera or describe what the alleged film depicted.
         Based on this testimony, the State asked the court to give a "missing
witness" instruction to the jury.4 The court declined to do so based upon its
determination that the alleged missing witnesses were not peculiarly available to
the defense. See State v. Blair. 117 Wn.2d 479, 490-91, 816 P.2d 718 (1991).


         4 See generally, 11 Washington Practice: Washington Pattern Jury Instructions:
Criminal 5.20, at177 (3d ed. 2008) (WPIC). The missing witness pattern jury instruction provides, in
relevant part:

                  If a person who could have been a witness at the trial is not called to testify,
         you may be able to infer that the person's testimony would have been unfavorable
         to a party in the case. You may draw this inference only if you find that:
         (1)      The witness is within the control of, orpeculiarly available to, that party;
         (2)      The issue on which the person could have testified is an issue of
                  fundamental importance, rather than one thatistrivial or insignificant;
         (3)      As a matter of reasonable probability, it appears naturally in the interest of
                  that partyto call the person as a witness;
         (4)      There is no satisfactory explanation of why the party did not call the person
                  as a witness; and
         (5)      The inference is reasonable in light ofall the circumstances.

                                                    18
No. 70711-6-1/19



The court ruled, however, that the State could nevertheless make a missing

witness argument in closing. Rich did not object.

       In closing, referring to Rich's siblings and the alleged video, the prosecutor

remarked: "Why aren't they here?" The prosecutor then suggested that the

reason was because Rich's version of the event was "not the way it happened."

       Rich argues that the trial court's ruling refusing the instruction butallowing
the argument was contradictory and erroneous. But even assuming trial court
error, Rich's failure to object to the trial court's ruling precludes our review. See
RAP 2.5(a) (arguments not raised in the trial court generally will not be
considered on appeal). Moreover, Rich does not make the requisite showing of
prejudice. See Emery. 174 Wn.2d at 760. First, the State did not assert that
Rich bore the burden of proof. Second, the jury instructions properly defined the
State's burden. And third, the State did not improperly suggest that the jury

could find Rich guilty simply because she failed to present evidence or
witnesses. In light of the evidence and the entire closing arguments, the brief
reference to the video and absent witnesses did not likely affect the verdict.

       Affirmed in part, reversed in part, and remanded.




We concur:




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