      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON                                   r;
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STATE OF WASHINGTON,
                                                   No. 72732-0-1                             uo
                      Respondent,
       v.                                          DIVISION ONE                               tz
                                                                                               CO

                                                                                                 sr
JAMES ALLEN SWEET,                                 UNPUBLISHED OPINION


                      Appellant.                   FILED: January 19, 2016


       Leach, J. — James Sweet appeals his conviction for assault in the first

degree with a deadly weapon enhancement.              He contends the prosecutor's

closing argument that shifted the State's burden constituted misconduct violating

his right to a fair trial. And he alleges that his counsel was ineffective for failing to

object to this argument. Because Sweet does not show prejudice from either the

prosecutor's comments or defense counsel's failure to object to them, we affirm.

                                      Background

       In August 2013, James Sweet, 21, began corresponding on social media

and via text message with Heather Brickell.              The night before Brickell's

eighteenth birthday, she invited Sweet to a party at her aunt's house.             After

arriving at the house, Sweet and Brickell went outside to a fire pit on the property.

Brickell introduced Sweet to her 14-year-old cousin, J.R.             Brickell's brother

Steven was also present. The group sat in chairs around the fire.
No. 72732-0-1 / 2



          Sweet commented that the fire was small. J.R. responded that it would be

bigger if they threw Sweet onto it.         Sweet became "serious" and angry,
repeatedly asking J.R. why he made the comment even after J.R. told him he
was joking. Sweet then went to J.R. and knocked J.R.'s hat off his head. J.R.
stood up, and a brief struggle ensued. J.R. and Sweet then sat back down.
          After Sweet and Brickell retrieved Sweet's backpack from Brickell's

mother's car, Sweet began smoking some marijuana he had brought with him.

He offered his pipe to the others, butthey told him they didn't use drugs.

          A short while later, Sweet said something like, "Don't mess with us

Juggalos." "Juggalos" are fans of a particular musical group whose members
wear face paint. J.R. laughed and asked Sweet if he meant "those guys who
wear makeup." Sweet "thought it was time to fight," so he stood up again and
approached J.R. Witnesses gave differing accounts about whether a shoving
match started at that point and, if so, who started it. But within a few seconds,
Sweet pulled out a knife and stabbed J.R. in the side. Sweet began apologizing
and asking if he could help, following J.R. as he walked toward the house. After
J.R.'s oldest brother warned Sweet off with a gun, Sweet left.

          Emergency personnel took J.R. to Harborview hospital.         Exploratory
surgery revealed that a stab wound, one to one-and-a-half inches wide by three
 inches long, had penetrated the abdominal wall and caused minor damage to the
 liver.
No. 72732-0-1 / 3




       Several days after the incident, Sweet turned himself in to police. The

State charged him with assault in the first degree with a deadly weapon

enhancement.


       At trial, the court instructed the jury on self-defense, one of the defenses

Sweet raised. During closing argument, the prosecutor discussed the lawfulness

of Sweet's use of force:


      Was it lawful, or was it unlawful? Because if it is unlawful, then it is
      an assault. If it is lawful, then it is not. So was his use of force
      lawful is the question.

              . . . When is it lawful?    And the instructions tell you.
       Instruction Nos. 12 through 16 lay out for you when the use of force
       is lawful—when it is allowed.         And in synthesizing those
       instructions, there are several main points to take away. First, the
       presumption is that the use of force is unlawful. Because unless it
      fits within those definitions, the presumption is unlawful.        It
      becomes lawful if the person using force is not the first aggressor;
       the person using force subjectively believes he is about to be
       injured and that belief is objectively reasonable; the force used is
       being used to prevent an offense against the person; and the
       amount of force is no more than necessary.

       The prosecutor also argued that Sweet was not entitled to argue self-

defense because he had not proved that J.R. was actually committing an assault

on him at the time of the stabbing:

       [J.R.] wasn't making any actual attempt at that point to commit an
       offense against him. And that's a requirement for lawful force.
       Even if you accept this claim that [J.R.j's statement about throwing
       him in the fire was a threat. And that [J.R.j's actions at the end of
       the first scuffle constituted a threat. That is not enough. What has
       to be there is that there was some intent to commit an offense at
       the time that the defendant stabbed him. That is not here, either.
       Because remember, what the defendant himself admits happened,
       they were both sitting down. [J.R.] wasn't even talking to him.
       They are 10 feet apart, and there is a person in between them.
       And it is the defendant who gets up and goes over towards [J.R.],
No. 72732-0-1/4


      not the other way around. There is just no evidence to suggest that
      [J.R.] was committing or about [to] commit an assault or an offense
      against the defendant. And that means that his use of force was
       not lawful.

Defense counsel made no objection to either argument.

       The jury convicted Sweet as charged. Sweet appeals.

                                     Analysis

Prosecutorial Misconduct

       Sweet asserts that two instances of prosecutorial misconduct violated his

due process right to a fair trial. To establish a claim of prosecutorial misconduct,
he must show that the conduct was both improper and prejudicial.1 Because he

did not object to the alleged misconduct at trial, Sweet must also show it was so
flagrant and ill intentioned that it caused prejudice incurable by a proper jury
instruction.2   Prejudice occurs only if "'there is a substantial likelihood the

misconduct affected the jury's verdict.'"3 We review misconduct claims in the

context of the total argument, the evidence addressed, the issues in the case,

and the jury instructions.4

        First, Sweet alleges that by arguing that Sweet's use of force was

presumed to be unlawful, the prosecutor improperly shifted the burden of proof to
the defense and misstated the law. To be entitled to a jury instruction on self-

defense, a defendant must present some evidence of self-defense. At that point,

       1 State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (quoting
State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009)).
       2 State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).
        3 Monday, 171 Wn.2d at 675 (internal quotation marks omitted) (quoting
State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007)).
       4 State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).

                                         -4-
No. 72732-0-1 / 5




the burden shifts to the prosecution to rebut the presumption of lawfulness and

prove the absence of self-defense beyond a reasonable doubt.5

       Here, the State concedes that the prosecutor misstated the burden of

proof by stating that the use of force in self-defense is presumed unlawful. We

accept the State's concession. But the State argues that because Sweet did not

object and because this misstatement was brief, not repeated, and "not an

inflammatory type of error," Sweet has waived this claim. We agree.

       Sweet relies heavily on State v. McCreven,6 in which Division Two of this

court held that a prosecutor's statements misstating the State's burden to

disprove self-defense were not harmless. We distinguish McCreven. As Sweet

notes, the court's reversal of the defendants' convictions in that case was based

only in part on the prosecutor's improper burden-shifting comments.            In

McCreven, the court's written instructions to the jury also misstated the State's

burden, stating that the defendants had "the burden of proving this defense by a

preponderance of the evidence."7 During rebuttal, the prosecutor repeated this

burden-shifting argument, and the trial court overruled defense objections.8

Division Two concluded, "Because we hold that the self-defense jury instructions

impermissibly lowered the State's burden to disprove self-defense, we cannot

hold that the prosecutor's misstatements were harmless when viewed in the



       5 State v. Walden. 131 Wn.2d 469, 473-74, 932 P.2d 1237 (1997).
       6 170 Wn. App. 444, 471, 284 P.3d 793 (2012).
       7 McCreven, 170 Wn. App. at 464.
       8 McCreven, 170 Wn. App. at 469-71.
No. 72732-0-1 / 6




context of the entire case."9 Here, by contrast, Sweet does not dispute that the

court's written instructions correctly stated the law. And the trial court instructed

Sweet's jury orally and in writing that they must disregard argument that

conflicted with the law they received in the court's instructions.

       Similarly, Sweet's reliance on State v. Walker10 is misplaced. Conflicting

testimony made that case "largely a credibility contest, in which the prosecutor's

improper arguments could easily serve as the deciding factor."11 Moreover, the

prosecutor not only misstated the standard for a self-defense claim but also

made several other improper arguments.12            Division Two noted the many

disputed facts, "the frequent use and repetition of improper statements," and the

emphasis of these statements by the use of PowerPoint slides.             The court

concluded that further instruction by the trial court would likely not have cured the

resulting prejudice and there was a "substantial likelihood" the prosecutor's

comments affected the jury's verdict.13 Here, by contrast, the misstatement at

issue amounted to a few sentences supporting one erroneous argument.

Although the parties disputed Sweet's claim of self-defense, they did not dispute

the basic facts of the altercation and stabbing.     And the prosecutor made the

comments in the context of proper instructions and otherwise correct statements

of the law.




       9 McCreven, 170 Wn. App. at 471.
       10 164 Wn. App. 724, 265 P.3d 191 (2011).
       11 Walker, 164 Wn. App. at 738.
       12 Walker, 164 Wn. App. at 729.
       13 Walker, 164 Wn. App. at 738-39.
No. 72732-0-1 / 7




       Sweet also contends that the prosecutor misstated the law by arguing that

Sweet could not assert self-defense unless J.R. was in the process of assaulting

Sweet at the time of the stabbing. In Washington, a defendant may use deadly

force when he or she "reasonably believes he or she is threatened with death or

'great personal injury.'"14       Here, the prosecutor's assertion contradicted the

court's instructions, which allowed self-defense upon a defendant's reasonable

belief that injury is imminent:

               A person is entitled to act on appearances in defending
       himself, if he believes in good faith and on reasonable grounds that
       he is in actual danger of injury, although it afterwards might develop
       that the person was mistaken as to the extent of the danger. Actual
       danger is not necessary for the use of force to be lawful.

       The prosecutor's argument improperly shifted the burden to the defense

to produce evidence of more than a reasonable belief of imminent injury.

However, Sweet did not object to the comments, and here again, he fails to show

that an appropriate jury instruction would not have cured any prejudice created

by the argument.

       As the McCreven court noted, we presume that juries follow the court's

instructions.15     In the overall context of the total argument, the evidence

addressed, the issues in the case, and the jury instructions, the prosecutor's

improper comments did not prevent the correct legal standard from being

"manifestly apparent to the average juror."16 Our Supreme Court recently held


       14 Wajden, 131 Wn.2d at 474; RCW9A. 16.050(1).
       15 McCreven, 170 Wn. App. at 471.
       16 Walden, 131 Wn.2d at 473.
No. 72732-0-1 / 8



that the trial court's "correct instructions given throughout the case cured any

potential prejudice that could have possibly arisen" from isolated improper

remarks, even from the trial court itself.17 Given the trial court's proper instruction

here, Sweet's argument that the prosecutor's misconduct "was so pervasively

prejudicial that no instruction could have cured the prejudicial effect" does not

persuade us.

Ineffective Assistance of Counsel

       Sweet alleges defense counsel provided ineffective assistance by failing

to object to the prosecutor's improper comments, violating Sweet's right to a fair
trial. To prevail on a claim of ineffective assistance, Sweet must show (1) his
attorney's representation fell below an objective standard of reasonableness and
(2) resulting prejudice, that is, a reasonable probability that the result of the trial
would have been different absent the deficient performance.18 The reviewing

court strongly presumes that counsel's conduct constituted sound trial strategy.19
If one of the two prongs of the test is absent, we need not inquire further.20
        Sweet asserts that "there could be no legitimate trial strategy in failing to

object... to the prosecutor's improper closing argument, which shifted the
burden of proof on self-defense and imposed an additional requirement upon

Sweet that the law did not." But because he fails to show that the argument itself

        17 State v. Kalebaugh, 183 Wn.2d 578, 586, 355 P.3d 253 (2015).
        is Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L.
 Ed. 2d 674 (1984).
       is in re Pers. Restraint of Rice, 118 Wn.2d 876, 888-89, 828 P.2d 1086
 (1992) (citing Strickland, 466 U.S. at 689).
        20 Strickland, 466 U.S. at 697.


                                           -8-
No. 72732-0-1 / 9




prejudiced him, he does not show prejudice from defense counsel's failure to

object to it.

                                   Conclusion


       The prosecutor's comments during closing argument improperly shifted

the State's burden to disprove self-defense. But because Sweet did not object

and does not show that these misstatements were incurable by proper

instruction, he does not show prosecutorial misconduct. And because he does

not show prejudice from these statements, his attorney's failure to object does

not support a claim for ineffective assistance of counsel. We affirm.



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WE CONCUR:




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