                                                                                                       FILED
                                                                                               COURT OF APPEALS
                                                                                                     DIVISION II

                                                                                              2015 FEB 24     AM 9: 30

                                                                                              STATE OF WASHINGTON
                                                                                              BY
                                                                                                        E OTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

    STATE OF WASHINGTON,                                                                 No. 45109 -3 - II


                                            Respondent,


           v.



    TYRONE MANSON ST. OURS,                                                      UNPUBLISHED OPINION


                                            Appellant.


          JOHANSON, C. J. —            Tyrone Manson St. Ours appeals his jury trial conviction for unlawful

possession of a controlled substance ( heroin). 1 He argues that ( 1) the admission of testimony

related to evidence that was not preserved violated due process, (2) his trial counsel was ineffective


for   failing   to   move   to dismiss the    charges    based   on   this   alleged   due   process violation, ( 3)   the trial


court erred in admitting certain evidence because it was irrelevant and unfairly prejudicial, and ( 4)

the prosecutor committed misconduct in closing argument by stating that the arresting officer

believed that the heroin and the backpack containing the heroin belonged to St. Ours and by

arguing facts        not   in   evidence.   Although we reject St Ours' s other arguments, we agree that the




1
    RCW 69. 50. 4013( 1).
No. 45109 -3 -II



prosecutor committed prejudicial misconduct in closing argument by arguing facts not in evidence.

Accordingly, we reverse St. Ours' s conviction and remand for further proceedings.

                                                       FACTS


                                                  I. BACKGROUND


          On March 22, 2013, Officer Jeff Thiry and his partner were on patrol in downtown Tacoma

when   Officer     Thiry    saw   St. Ours walking   with another man.            Officer Thiry recognized St. Ours

and stopped him because of an outstanding arrest warrant. Officer Thiry told St. Ours to remove

the backpack he was wearing and then handcuffed him.

          After securing St. Ours, Officer           Thiry       searched    the backpack       and   found "   numerous



                                                          2
hypodermic        syringes and some other paraphernalia. "            Report      of   Proceedings ( RP) (   July 9, 2013)

at 70. One of the syringes contained a dark brown liquid that Officer Thiry believed was black tar

heroin.    Because of potential safety issues, he put the syringes in " a department- issued sharps

container."       RP ( July 9, 2013) at 70.

          In the same part of the backpack, Officer Thiry found a " little tin cup" that contained a

clump     of a   brown tar -like   substance.   RP ( July 9, 2013)     at   73.   He field tested the tarry substance,

and   it tested    positive   for heroin.   Officer Thiry arrested St. Ours for possession of a controlled

substance.




          After removing the syringes and the tin cup containing the brown substance from the

backpack and ensuring that it did not contain any weapons, Officer Thiry handed the backpack to
                    3
the   other man.        According to Officer Thiry, he did so at St. Ours' s request.



2 There were approximately 40 syringes in the backpack.

3 Officer Thiry never identified the second man.
                                                             2
No. 45109 -3 -II



                                                      II. PROCEDURE


           The State charged St. Ours with unlawful possession of a controlled substance ( heroin) and


unlawful use of drug paraphernalia. 4 The case proceeded to a jury trial.
                                              A. PRELIMINARY MOTIONS


           Before trial, the State moved to dismiss the unlawful use of drug paraphernalia charge

because it had discovered that the alleged drug paraphernalia was not available and had likely been

destroyed. The trial court granted this motion and dismissed this charge.


           The trial court then asked the State if it still intended to offer evidence of the alleged drug

paraphernalia on the remaining charge. The State responded that despite not having the syringes

or any photographs of the syringes, it intended to ask Officer Thiry to testify about what he had

found in the backpack            and "   how heroin is commonly         used."     RP (   July 8,      2013)   at   8.    The State


asserted       that this   evidence was relevant    to   prove   that St. Ours   possessed   the    heroin, stating, " I think


it' s   relevant    he had    syringes on   his   person   indicating he intended     to    use   it   as well."         RP ( July 8,

2013)     at   8.   The State also intended to offer evidence about the tin cup and to have Officer Thiry

testify that it was used as a heroin cooker and what a heroin cooker was.

           Defense counsel argued that allowing the State to present any evidence about items found

in the backpack would be unfairly prejudicial because ( 1) the defense had not been able to examine

the syringes to determine if they were insulin syringes, noting that St. Ours could be a diabetic,

and ( 2) the defense had not been able to examine the backpack for evidence that it belonged to


someone other than St. Ours. Apparently rejecting St. Ours' s arguments, the trial court responded




4 RCW 69. 50. 412( 1).


                                                                 3
No. 45109 -3 -II



that it was more concerned with whether the evidence was prejudicial than with Officer Thiry' s

failure to retain the backpack or syringes and suggested that the officer' s failure to retain these


items was something that St. Ours could argue to the jury. Although the trial court asked defense

counsel   if he thought this     evidence was admissible under           ER 404( b), defense counsel continued to


argue that the evidence should not be admitted because the defense would be prejudiced by its

inability to examine this evidence. He never asserted that this evidence was not relevant or that it

was unfairly prejudicial in and of itself.

          The   next   day,   the trial   court admitted evidence of       the    syringes under     ER 404( b), stating


that the syringes were relevant to prove St. Ours knowingly possessed the heroin and that the

possible prejudice       did   not outweigh        the   probative value   of    this   evidence.   The trial court also


commented, "[      T] hat the defense is free to cross -examine about what Officer Thiry did with the

syringes and what he did not do with them, what he might have done as part of a thorough police


investigation." RP ( July 9, 2013)           at   55. The trial court did not mention the backpack.


                                                   B. TRIAL TESTIMONY


          Officer Thiry testified to the facts described above.5 In addition, on cross -examination, he

testified that he had searched the backpack for weapons and that the backpack did not contain any

documents, wallet, identification, papers, mail, or bills linking the backpack to St. Ours. Neither

the State nor St. Ours asked Officer Thiry if the backpack contained anything other than the




5 The State' s only other witness was a Washington State Patrol Crime Lab forensic scientist who
testified that the substance        from the tin cup       contained   heroin.
No. 45109 -3 - II



syringes and the tin cup containing the heroin or whether the backpack contained anything that

could have shown that it belonged to another person.6

         St. Ours asserted an unwitting possession defense. He testified that he did not know what

was in the backpack because it did not belong to him and he had not looked inside it.7 He stated

that just before Officer Thiry stopped him, he ( St. Ours) had met a man he knew as " Herbert,"

whose last name he did not know, and that Herbert had asked him to carry the backpack for him.

RP ( July 10, 2013)       at    106.     St. Ours   planned   to   meet   Herbert later   and return   the   backpack. St.


Ours admitted that he was carrying the backpack when Officer Thiry stopped him, but he denied

asking Officer Thiry to give the backpack to the man he was with.

                                                   C. CLOSING ARGUMENTS


         In its closing argument, the State argued that it had proven that St. Ours had knowingly

possessed the heroin because the heroin was in the backpack, St. Ours was wearing the backpack,

and there was " no other claim of ownership from any other party that is in evidence in this case."

RP ( July 10, 2013)       at   121.     The State   also argued, "     Additionally, there is no evidence that anyone

else   had   access   to that backpack. ". RP        ( July 10, 2013) at 122.

         In his closing argument, St. Ours argued that the State' s failure to retain the backpack was

 sloppy, shotty [ sic],        police work,"       and that the failure to keep the backpack had deprived him of




6 After the State rested, St. Ours moved to suppress the evidence from the backpack, arguing that
the search was an invalid search incident to arrest. The trial court denied the motion to suppress
based   on    Officer Thiry'     s    trial   testimony. This motion did not address Officer Thiry' s failure to
retain the backpack or its contents.


7 St. Ours was the only defense witness.

                                                                   5
No. 45109 -3 - II



his ability to support his defense because he could not examine it to see if it had contained anything

identifying it   as another person' s   backpack. RP ( July 10, 2013)        at   123.     St. Ours further argued,


                   Officer Thiry] didn' t see anything in [ the backpack] linking it to Mr. St.
        Ours.     There was no wallet, there was no mail, no documents, nothing in there
        linking it to Mr. St. Ours. What, about Herbert? He didn' t tell you about that.
                Oh, and [ the State] has just told you that nobody came forward with a claim
        of ownership to that backpack. Well, of course not. It' s gone. How can the State
        argue to you that because nobody has come forward to claim a backpack that the
        State let go, all of a sudden this is now proof that was Mr. St. Ours' backpack. That
        doesn' t make sense.. Don' t buy it.

RP ( July 10, 2013)    at   124 ( emphasis   added).    St. Ours also asserted that other than the fact he had


been carrying the backpack, the State had not offered any evidence proving that the backpack

belonged to him and argued that this was sufficient to prove his unwitting possession defense by

a preponderance of the evidence.


        In rebuttal, the State responded that the fact St. Ours was carrying the backpack " link[ed]"

it to him. RP ( July 10, 2013) at 127. It further argued,

                    You heard testimony from Officer Thiry when he was asked, you know,
        what other     items   were   in it. There really      wasn'   t anything   else   in it. There was

        nothing that had a bill in Mr. St. Ours' name. Pretty clear that' s not there, otherwise
        I   could   have been talking   about   it   with you earlier.    You know         what?   There was

         also nothing else in it with Herbert' s name. Herbert, who doesn' t have a last name.

RP ( July 10, 2013)    at   128 ( emphasis   added).   St. Ours objected, asserting that the State was arguing

facts not in evidence.




                                                           6
No. 45109 -3 - II



         The trial court overruled the objection. Rather than refer the jury to the standard instruction
                                                                       8
stating that    counsels'       argument was not evidence,                 the   court stated, "   I think it' s arguing the

evidence   before the jury."           RP ( July 10, 2013) at 128.

         The prosecutor further argued,


                 Additionally, the defendant also seems to want you to believe that the
         officer just simply gave the backpack away without any sort of conversation,
         discourse, or discussion with him. Well, that doesn' t really make a lot of sense. If
         the officer didn' t believe that it was the defendant' s backpack, then all of a sudden
         he has a piece of abandoned property. If it' s a piece of abandoned property, there
         is no real reason to attribute the controlled substances to the defendant.
                But, clearly, that wasn' t the officer' s thought process because he told you
         he believed they were the defendant' s.    They were in the backpack the defendant
         was carrying on his back. And he ultimately, not only executed the warrant, but he
         also advised the defendant, hey, man, you are under arrest for these drugs I found
         in your backpack.


RP ( July 10, 2013)       at   128 -29 ( emphasis      added).   St. Ours did not object to this argument.


         The jury found St. Ours guilty of unlawful possession of a controlled substance ( heroin).

St. Ours appeals.


                                                        DISCUSSION


         St. Ours argues that ( 1) the admission of the evidence related to the syringes and backpack


violated   his due   process rights, (       2) his trial counsel was ineffective for failing to move to dismiss

all   charges   based     on    this   alleged   due   process   violation, (      3) the trial court erred in admitting




8
    Jury instruction 1 provided in part,
                  The lawyers' remarks, statements, and arguments are intended to help you
         understand       the   evidence and      apply the law.           It is important, however, for you to
         remember        that the lawyers'        statements     are       not   evidence.   The evidence is the
         testimony and the                 You must disregard any remark, statement, or
                                       exhibits....

         argument that is not supported by the evidence or the law in my instructions.
Clerk' s Papers     at   45.
No. 45109 -3 - II



evidence related to the backpack and syringes because it was irrelevant and unfairly prejudicial,

 4) the prosecutor committed misconduct in closing argument by telling the jury that Officer Thiry

testified that he believed the backpack and the drugs belonged to St. Ours, and ( 5) the prosecutor


committed misconduct in closing argument when she argued facts not in the evidence by stating

that the backpack did not contain any evidence linking it to Herbert. Although we reject St. Ours' s

other arguments, we agree that the prosecutor committed prejudicial misconduct when it argued


that the backpack did not contain any evidence suggesting it belonged Herbert.

                                       I. No DUE PROCESS VIOLATION


        St. Ours first argues that the failure to preserve the syringes and the backpack violated his


due process rights and impaired his ability to present an effective defense.9 He contends that

Officer Thiry had a duty, independent of any request by St. Ours, to preserve this evidence for the

defense because the evidence was materially exculpatory and was of such nature that there was no

reasonable means by which St. Ours could obtain comparable evidence. St. Ours further contends

that even if this evidence was not materially exculpatory, it was potentially useful, and the State

violated   his due   process rights
                                      by failing   to   preserve   the evidence   in bad faith.   Even presuming

that St. Ours preserved this issue for review, this argument fails.


                              A. STANDARD OF REVIEW AND DUE PROCESS


           We   review alleged   due    process    violations de    novo."   State v. Mullen, 171 Wn.2d 881,


893 -94, 259 P. 3d 158 ( 2011) (      citing State v. Cantu, 156 Wn.2d 819, 831, 132 P. 3d 725 ( 2005)).

The Fourteenth Amendment of the United States Constitution and article I, section 3 of the




9 Although we reverse on other grounds, we address this argument because we would likely dismiss
the charges if this argument had been successful. See State v. Wittenbarger, 124 Wn.2d 467, 475,
880 P. 2d 517 ( 1994).

                                                           8
No. 45109 -3 -II



Washington Constitution require the State to preserve material exculpatory evidence in a criminal

trial. See State     v.   Wittenbarger, 124 Wn.2d 467, 474 -75, 880 P. 2d 517 ( 1994) (                   citing California

v.   Trombetta, 467 U. S. 479, 104 S. Ct. 2528; 81 L. Ed. 2d 413 ( 1984)).                        Material exculpatory

evidence is evidence that, before its destruction or release, has apparent exculpatory value and is

of "a nature that the defendant would be unable to obtain comparable evidence by other reasonably

available means."          Wittenbarger, 124 Wn.2d          at   475 ( citing Trombetta, 467 U.S.           at   489).    But a


showing that the evidence might have exonerated the defendant is insufficient to establish that it

is   material   exculpatory      evidence.   Wittenbarger, 124 Wn.2d at 475.


          If the State fails to preserve potentially useful evidence that does not qualify as material

exculpatory evidence, the State has not violated the defendant' s right to due process unless the

defendant       can show       that the State   acted   in bad faith.      Wittenbarger, 124 Wn.2d at 477 ( citing

Arizona    v.   Youngblood, 488 U.S. 51, 58, 109 S. Ct. 333, 102 L. Ed. 2d 281 ( 1988)). "`                       Potentially

useful' evidence is ` evidentiary material of which no more can be said than that it could have been

subjected      to tests, the   results of which might     have       exonerated   the defendant. "' State v. Groth, 163


Wn.    App.     548, 557, 261 P. 3d 183 ( 2011) (       quoting Youngblood, 488 U.S. at 57; Wittenbarger, 124

Wn.2d     at   477), review denied, 173 Wn.2d 1026 ( 2012).


                            B. EVIDENCE NOT MATERIAL EXCULPATORY EVIDENCE


          Our review of the record does not suggest that the syringes or the backpack had an


exculpatory value that was apparent before they were destroyed or released. As to the syringes, at

best, defense       counsel suggested        that the syringes        could   have been   used   by   a   diabetic.      But the


defense never presented any evidence that St. Ours, or the person he asserted owned the backpack,

was a diabetic; defense counsel merely asserted that St. Ours could be a diabetic. Defense counsel


                                                                 9
No. 45109 -3 - II



also asserted that the brown liquid in the syringe could have been something other than heroin, but

that merely shows that the evidence was potentially useful if it had been tested and found to have

been something other than heroin.

        As to the backpack, defense counsel merely asserted that the backpack could have

contained other items linking it to someone other than St. Ours. At best, St. Ours has shown that

the evidence might have exonerated him, and this is insufficient to establish that the evidence was


material exculpatory evidence. Additionally, there were other possible ways St. Ours could have

established that the backpack belonged to someone elsethe alleged true owner or someone who


saw the alleged owner give St. Ours the backpack could have testified. Accordingly, St. Ours has

failed to establish that the State violated his due process rights by failing to retain material

exculpatory evidence.


                                       C. NO EVIDENCE OF BAD FAITH


        Furthermore, even if the syringes and the backpack were potentially useful evidence, St.

Ours did not present any evidence suggesting that the State acted in bad faith by failing to retain

the backpack    or   the   syringes.   As to the syringes, there was no evidence establishing why the

syringes were not available, establishing that the party responsible for the syringes being

unavailable was aware of any exculpatory aspect of this evidence, or establishing that the syringes

were unavailable     because    someone   failed to follow any policy   or protocol.   See Groth, 163 Wn.


App. at 559 -60 ( considering the fact there was no evidence that evidence was destroyed in violation

of established policy and procedures when evaluating whether the destruction was in bad faith).

         As to the backpack, the trial testimony established only that Officer Thiry gave the

backpack to the man who was with St. Ours, and there was no evidence that Officer Thiry did so


                                                      10
No. 45109 -3 -II



with   intent to   make   this item    unavailable    to the defense. Moreover, "[ t]he presence or absence of



bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police' s

knowledge of the exculpatory value of the evidence at the time it was lost or destroyed."

Youngblood, 488 U. S.        at   56   n. *.   And there is nothing in the record suggesting that Officer Thiry

had any knowledge that St. Ours would later assert that the backpack belonged to another person.

Accordingly, based on this record, St. Ours does not show that his due process rights were violated.

                                  II. No INEFFECTIVE ASSISTANCE OF COUNSEL


         St. Ours further argues that his trial counsel' s representation was ineffective because he

failed to argue that the State had violated St. Ours' s due process rights in failing to preserve the

syringes and the backpack. This argument also fails.


         We review an ineffective assistance claim de novo, beginning with a strong presumption

that trial counsel' s performance was adequate and reasonable. Strickland v. Washington, 466 U. S.

668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d


1260 ( 2011).      To prevail on an ineffective assistance of counsel claim, the appellant must show


both deficient performance and resulting prejudice; failure to show either prong defeats this claim.

State v. McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).


          To show prejudice here, St. Ours must establish that there was a reasonable probability that

the trial   court would     have found that St. Ours'        s    due   process rights   had been   violated.   State v.


McFarland, 127 Wn.2d 322, 334, 899 P. 2d 1251 ( 1995).                         As discussed above, based on the


evidence before us, St. Ours does not show that a due process argument would have been

successful. Thus, he fails to show prejudice on this record, and his ineffective assistance of counsel

argument fails.



                                                             11
No. 45109 -3 -II



                                           III. EVIDENTIARY ISSUE


         St. Ours next argues that the trial court erred in admitting the backpack and syringe

evidence because it was irrelevant and unfairly prejudicial. He has failed to preserve this error.

         A prerequisite for challenging an evidentiary ruling is that the appellant must have made a

timely   and   specific objection at trial.   ER 103( a)( 1);   RAP 2. 5; State v. Gray, 134 Wn. App. 547,

557, 138 P. 3d 1123 ( 2006),      review   denied, 160 Wn.2d 1008 ( 2007).      Here, St. Ours argued only

that this evidence was inadmissible because it was unfairly prejudicial in light of the fact the State

had   not retained   the   evidence —St. Ours did not object to the trial court' s ER 404( b) analysis and


its related prejudice analysis. Accordingly, to the extent St. Ours is arguing that this evidence was

unfairly prejudicial in its own right, he has failed to preserve this argument, and we do not address

it further.


                                     IV. PROSECUTORIAL MISCONDUCT


         Finally, St. Ours argues that the prosecutor committed misconduct during closing argument

 1) by stating that Officer Thiry testified that he believed the backpack and drugs belonged to St.

Ours and ( 2) by arguing facts not in evidence when she stated that the backpack did not contain

any   evidence    linking   it to Herbert. Although St. Ours failed to preserve his first argument, we


agree that the prosecutor argued facts not in evidence when she stated that the backpack did not


contain any evidence linking it to Herbert. Furthermore, in light of St. Ours' s unwitting possession

defense and the trial court' s comment on this argument, we hold that this error was prejudicial.

                                           A. STANDARD OF REVIEW


         To establish prosecutorial misconduct, St. Ours has the burden of establishing that the

challenged conduct was         both improper    and prejudicial.    State v. Cheatam, 150 Wn.2d 626, 652,



                                                         12
No. 45109 -3 - II



81 P. 3d 830 ( 2003).      We review the prosecutor' s conduct " by examining that conduct in the full

trial context, including the evidence presented, `the context of the total argument, the issues in the

case,   the    evidence addressed   in the   argument, and   the instructions   given   to the   jury. "'   State v.


Monday,        171 Wn.2d 667, 675, 257 P. 3d 551 ( 2011) ( internal    quotations marks omitted) ( quoting




State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006)).


             If the appellant failed to object to misconduct at trial, he is deemed to have waived any

error unless he establishes that the misconduct was so flagrant and ill intentioned that it caused an


enduring prejudice that could not have been cured with an instruction to the jury, and the

misconduct resulted in prejudice that had a substantial likelihood of affecting the jury verdict.

State   v.   Emery,   174 Wn. 2d 741, 762; 278 P. 3d 653 ( 2012); State v. Thorgerson, 172 Wn.2d 438,


442 -43, 258 P. 3d 43 ( 2011).      The focus of this inquiry is more on whether the resulting prejudice

could have been cured, rather than the flagrant or ill-intentioned nature of the remark. Emery, 174

Wn.2d at 762.


                                 B. COMMENT ON OFFICER THIRY' S BELIEF


             St. Ours argues that the prosecutor improperly commented that Officer Thiry believed the

drugs and backpack belonged to St. Ours and that the prosecutor misstated the record when she


stated   that the officer had " told" the     jurors he believed the drugs belonged to St. Ours.               This


statement clearly misstated the evidence; Officer Thiry did not give any such testimony. But St.

Ours did not object to this argument, and he fails to show that this potential error could not have


been cured by a proper, timely instruction. Accordingly, St. Ours has waived this argument.




                                                       13
No. 45109 -3 - II


                                   C. COMMENT ON BACKPACK' S CONTENT


          In contrast, St. Ours objected to the prosecutor' s argument that the backpack did not

contain   anything     linking   it to Herbert. We agree that this argument is not based on the facts in


evidence nor was it a reasonable inference from the record. Officer Thiry testified only that he did

not   find anything    linking   the backpack to St. Ours      when   he   searched   it for   weapons —he   did not


testify that there was nothing else in the backpack that could have identified a different owner nor

did he testify as to whether there was anything other than the drug evidence and drug paraphernalia

in the backpack. And neither party asked Officer Thiry if there was other identifying information

in the backpack. Thus, this argument was improper.

          We   now    turn to   whether   this improper   argument was prejudicial.            Emery, 174 Wn.2d at

760. We hold that it was.


          This improper argument was clearly relevant to whether the backpack belonged to St. Ours,

which, in turn, was critical to St. Ours' s unwitting possession claim. And there was no evidence

at trial apart from St. Ours' s physical possession of the backpack linking him to the backpack.

Thus, this argument incorrectly stating that there was no exculpatory evidence in the backpack had

the potential to be highly prejudicial to St. Ours' s unwitting possession affirmative defense.

          Furthermore, although we consider the State' s argument in light of the jury instructions

and the trial court had instructed the jury that counsels' argument was not evidence, the trial court

did not direct the jury to that instruction when it overruled St. Ours' s objection. Instead, it stated,

 I think it'   s   arguing the   evidence   before the   jury." RP ( July    10, 2013)    at    128.   This statement


essentially endorsed the State' s improper argument as an accurate statement of the record and

could have influenced whether the jury independently evaluated the State' s argument in light of


                                                          14
No. 45109 -3 - II



the   record.   Because the improper argument went to the core of St. Ours' s unwitting possession

defense, there was little direct evidence of who owned the backpack, and the jury could have

construed the trial court' s ruling on St. Ours' s objection to this statement as an endorsement of the

prosecutor' s erroneous statement of the facts, we hold that St. Ours has shown that the improper


argument had a substantial likelihood of affecting the verdict.

          Accordingly, we reverse and remand for further proceedings.

          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.




                                                                                       8'
 We concur:




 MAXA;




LEE, J.




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