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                                                     2014 NOV 1 8 ,
                                                                    r
       IN THE COURT OF APPEALS OF THE STATE OF WASHIN:C;

                                                    DIVISION II

 STATE OF WASHINGTON,                                                                  No. 45436 -0 -II


                                         Respondent,


            v.



 ROBERT L. VANDERVORT,                                                         UNPUBLISHED OPINION


                                         Appellant.




         WoRSwicx, P. J. — Robert Vandervort appeals his conviction for unlawful possession of a


controlled substance. He argues that the prosecutor committed misconduct by presenting the jury

with a false choice, and that he received ineffective assistance of counsel because his attorney

failed to    object     to the   prosecutor' s   rebuttal   closing    statement.     He also appeals his sentencing

condition that prohibits him from going into any place whose primary place of business is the sale

of liquor. We affirm his conviction, but remand to the trial court to strike the sentencing condition.

                                                            FACTS


         On July 10, 2013, Officer Matthew Jewett of the Department of Fish and Wildlife spotted

a vehicle about 30 yards off the road on Highway 101 near Purdy Canyon. As he approached the

car,   Officer Jewett       observed    a man     and a woman           sleeping inside.        Officer Jewett woke the


occupants, asked         for their identification,    and asked whether either of               them had   a warrant.   The


woman       did   not   have identification, but       gave      her   name   and   date   of   birth.   The man, Robert


Vandervort,       removed    his identification from        a   backpack   and gave   it to Officer Jewett. Vandervort
No. 45436 -0 -II




denied   having      an   outstanding      warrant.     Officer Jewett investigated both names and discovered


Vandervort' s outstanding warrant. In the meantime, Vandervort fled into the woods.

         After backup officers arrived, Officer Jewett found Vandervort about 50 yards from the

vehicle, lying face down behind a large tree and holding onto the backpack. Officer Jewett arrested

Vandervort        and   read   him his Miranda'            rights.         Officer Jewett asked Vandervort how much


methamphetamine           he had in his backpack. Vandervort answered that there was a small amount


and   that he would show Officer Jewett where                            it    was,   which   he did.       Officer Jewett found


methamphetamine inside a container in the backpack.


         The State charged Vandervort with unlawful possession of a controlled substance. At trial,


Vandervort        asserted   the   affirmative      defense     of   unwitting        possession.     Officer Jewett testified, " I


asked him about how much meth he had in his backpack and he said it was just a small amount


and   that   he   would show me          exactly   where   it   was." .    Report of Proceedings ( RP) at 58. Vandervort


testified that he told Officer Jewett that the container " may contain meth" because he had smoked

methamphetamine with               the   person who owned            the      container.   RP   at   85.   He further testified that


he   was unaware of        the   contents of       the black     container       because it belonged to         someone else.   On


cross -examination, Vandervort admitted he had lied to Officer Jewett about the outstanding

warrant.




         During defense' s closing argument, counsel raised the issue of Vandervort' s credibility and

admitted that the State had proven its case, and counsel then discussed the unwitting possession

instruction. During the State' s rebuttal, the prosecutor said,

         In regards to the unwitting possession defense, that defense is just simply not
         credible.... [          I] n regards to on a more probable than not basis whether he had
         knowledge, for you to find that on a more probable than not basis he did not know


1 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

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No. 45436 -0 -II




          the methamphetamine was in his backpack, you would have to be able to explain
              how it is that Officer Jewett was either mistaken or being dishonest. Because you
              can'   t have —there'    s one truth and three different stories, and you can' t have your
              cake and eat it too, so it' s either Officer Jewett is mistaken or being dishonest or
              the defendant is being dishonest.
                      It' s one or the other, and which is more probable? Is there any motivation
              on   the   part of a   police officer to come   in here   and   lie? And what motivation does
              the defendant have?         Well, he has a stake in the outcome, and he' s shown that he
              can lie under oath.


RP at 110, 112. A jury found Vandervort guilty of unlawful possession of a controlled substance.

              At sentencing, the trial court found Vandervort had a chemical dependency that contributed

to the   offense.         As a condition for community custody, the trial court ordered Vandervort to stay

away from places whose primary business is the sale of liquor.

                                                          ANALYSIS


              Vandervort appeals his conviction, arguing that the prosecutor committed misconduct in

his closing arguments, and that Vandervort received ineffective assistance of counsel when his

attorney did not object to the State' s closing argument. He also appeals his community custody

condition          requiring him to      abstain   from entering businesses that     sell   liquor. The State concedes


that the trial court did not have the authority to impose this sentencing condition.

                                               PROSECUTORIAL MISCONDUCT


              When a defendant asserts a claim of prosecutorial misconduct, the defendant must prove


that the prosecutor' s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741,

756, 278 P. 3d 653 ( 2012) ( citing            State v. Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011)).

Allegedly          improper     conduct    should    be   viewed "   within the context of the prosecutor' s entire



argument, the issues in the case, the evidence discussed in the argument, and the jury instructions."

State    v.   Dhaliwal, 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003) (              citing State v. Pirtle, 127 Wn.2d 628,

672, 904 P. 2d 245 ( 1995)).               To establish prejudice, the defendant must prove that there was a


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No. 45436 -0 -II




substantial   likelihood that the         prosecutor' s misconduct affected          the   jury' s   verdict.   Thorgerson,


172 Wn.2d        at   442 -443.    Prosecutors are presumed to act impartially in the interest of justice.

Thorgerson, 172 Wn.2d             at   443.   When the defendant does not object at trial, any error is deemed

waived " unless the prosecutor' s misconduct was so flagrant and ill intentioned that an instruction


could not     have     cured    the resulting    prejudice."       Emery,    174 Wn.2d      at   760 -761 (   citing State v.

Stenson, 132 Wn.2d 668, 727, 940 P. 2d 1239 ( 1997)).


          A prosecutor commits misconduct if he or she argues that 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).             However, an argument that to believe a defendant, the jury would

need to believe that the State' s witnesses are mistaken, does not constitute misconduct. State v.


Wright, 76 Wn.         App.    811, 824, 888 P. 2d 1214 ( 1995).            Additionally, remarks by the prosecutor,

including those that would otherwise be improper, -are not grounds for reversal where they are

invited by and responded to with remarks by defense counsel, unless they bring in additional

matters   beyond the         record or are " so prejudicial    that   an   instruction   would not cure       them."   State v.


La Porte, 58 Wn.2d 816, 822, 365 P. 2d 24 ( 1961).


          This   case   is    similar   to Wright.   There, the prosecutor argued that in order to believe the


defendant, " the jury        would     have to believe that the     officers got   it wrong."     Wright, 76 Wn. App. at

823 ( internal    quotation marks omitted).          This was distinguishable from a prosecutor saying that to

find a defendant not guilty, the jury would have to believe that the officers were lying. Wright, 76

Wn. App. at 823. Because Vandervort asserted an unwitting possession defense, his defense relied

on   his credibility.         The only evidence tending to prove an unwitting possession defense was

Vandervort'      s own    testimony. His defense depended on whether the jury found his version of

events credible when he testified he did not know what was in the container containing the

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No. 45436 -0 -II




methamphetamine,       and   that it belonged to   someone else.          Defense counsel raised the issue of


Vandervort' s credibility in his closing. The prosecutor, in turn, brought up the issue of conflicting

testimony as it related to the defendant' s credibility. The prosecutor' s reference to the conflicting

testimony between Officer Jewett and Vandervort in rebuttal closing was not misconduct.

                                 INEFFECTIVE ASSISTANCE OF COUNSEL


          To succeed on an ineffective assistance of counsel claim, a defendant must show both that


counsel' s representation was deficient, and that this deficiency prejudiced the defendant. State v.

McFarland, 127 Wn.2d 322, 334 -335, 899 P. 2d 1251 ( 1995). If a defendant makes an insufficient


showing on one prong, we need not address the other. State v. Garcia, 57 Wn. App. 927, 932, 791

P. 2d 244 ( 1990).      Because Vandervort has failed to prove that the prosecutor committed


misconduct, there was no basis for an objection. Therefore, counsel' s performance could not have

been deficient. Vandervort' s ineffective assistance of counsel claim fails.


                                          SENTENCING CONDITION


          Vandervort also argues that the trial court .acted without authority when it ordered him not

to frequent   places whose    primary business is the        sale of   liquor.    The trial court has the statutory

authority to impose      crime -related   prohibitions       as   conditions     for community custody.      RCW


9. 94A.703( 3)( f).   However, there is nothing in the record showing that alcohol contributed to

Vandervort' s possession of a controlled substance offense, or that he suffers from alcohol


dependency. Accordingly, we accept the State' s concession and remand to the trial court to strike

the community custody condition requiring Vandervort to stay away from businesses that sell

liquor.




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No. 45436 -0 -II




                                          CONCLUSION


        We affirm Vandervort' s conviction because the prosecutor' s remarks were not improper. We


accept the State' s concession regarding the community custody condition, and remand to the trial

court to strike the condition ordering Vandervort to stay away from businesses that sell alcohol.

        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.




 We concur:
                                                                      Worswick, P. J.
                                                                                         d'''°-
 Lee,




Sutton, J.




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