                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                           June 16, 2020



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 52629-8-II

                                Respondent,

         v.                                                   UNPUBLISHED OPINION

    JONATHAN LEE SUTLEY RHOADS,

                                Appellant.



        MAXA, J. – Jonathan Sutley Rhoads1 appeals his conviction of attempting to elude a

pursuing police vehicle and an interest accrual provision for the legal financial obligations

(LFOs) in his judgment and sentence. His conviction arose from an incident in which he failed

to stop during a pursuit after a deputy sheriff observed him speeding.

        We hold that (1) the prosecutor’s initial misstatement regarding the length of the pursuit

did not constitute misconduct because he corrected the misstatement on rebuttal; (2) the

prosecutor’s statement regarding the standard for determining a knowing violation was improper,

but Sutley Rhoads waived his challenge because he did not object and an instruction would have

cured any prejudice; and (3) the interest accrual provision should be stricken. Accordingly, we




1
 The record is inconsistent as to whether the defendant’s last name is hyphenated. This opinion
uses “Sutley Rhoads” because that is how it appears in his briefing and the trial court’s judgment
and sentence.
No. 52629-8-II


affirm Sutley Rhoads’s conviction, but we remand for the trial court to strike the interest accrual

provision from the judgment and sentence.

                                              FACTS

Initial Incident

         Shortly before 10:00 PM on June 28, 2018, Thurston County Deputy Sheriff Brett

Campbell measured the speed of an oncoming vehicle driven by Sutley Rhoads at 18 miles per

hour over the posted speed limit. Campbell changed his direction and drove after the vehicle.

         Sutley Rhoads turned onto a side road and Campbell followed. Sutley Rhoads turned

again at another intersection without stopping for a posted stop sign. At some point during the

pursuit, Campbell activated his overhead lights and later activated his siren. Campbell

eventually caught up to Sutley Rhoads, matching the vehicle’s speed at 60 mph in a 35 mph

zone. Sutley Rhoads continued at a high rate of speed with Campbell in pursuit. Sutley Rhoads

finally slowed down and pulled over. Campbell remained with his vehicle and waited for backup

to arrive. He then arrested Sutley Rhoads and read him his constitutional rights.

         The State charged Sutley Rhoads with attempting to elude a pursuing police vehicle.

Trial and Closing Argument

         At trial, the main issue was whether Sutley Rhoads stopped his vehicle quickly enough.

Witnesses testified to the facts stated above. Campbell testified that the “beginning of the stop”

occurred at 9:59 PM and that Sutley Rhoads was read his Miranda2 rights at 10:08 PM. 1 Report

of Proceedings (RP) at 156.




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



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No. 52629-8-II


       One of the elements in the to-convict instruction for attempting to elude was that “the

defendant willfully failed or refused to immediately bring the vehicle to a stop after being

signaled to stop.” Clerk’s Papers (CP) at 34. Another instruction stated, “A person acts willfully

as to a particular fact when he acts knowingly as to that fact.” CP at 32. Instruction 6, which

addressed knowledge, included the following statement: “If a person has information that would

lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted

but not required to find that he or she acted with knowledge of that fact.” CP at 32. Sutley

Rhoads did not object to instruction 6.

       During closing argument, in arguing that Sutley Rhoads did not immediately stop his

vehicle, the prosecutor stated:

       We know when this stop happened. It started at 9:59 and ended at 10:08. It was
       nine minutes. We are not talking ten seconds. We are not talking 30 seconds.
       We are talking nine minutes of driving through Thurston County, running stop
       signs, doubling the speed limit, driving in other lanes, driving off the roadway.

2 RP at 315. Sutley Rhoads did not object to this statement.

       In his closing argument, Sutley Rhoads constructed a timeline of the incident using map

distances and speeds at which the vehicles were traveling. Based on this analysis, Sutley Rhoads

argued that “this did not take nine minutes.” 2 RP at 321. Instead, he suggested that a minute or

less had passed between the point he turned onto the first side road and the point where he

stopped his vehicle.

       During rebuttal, the prosecutor responded, “The defense is pointing to the time frame.

The officer never said the pursuit lasted nine minutes. He said he flipped on his radar detector,

nine minutes later, he read him his Miranda warnings. A lot of stuff happened in between.” 2

RP at 327.




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No. 52629-8-II


       The prosecutor also addressed the knowledge requirement. He quoted the language from

instruction 6 about the knowledge of a reasonable person. In explaining what this instruction

meant, the prosecutor stated:

       [Y]ou are allowed to consider what would lead a reasonable person in a same
       situation to know. So we don’t have to try to climb into someone else’s head and
       say what does that person know. That would be impossible. What it does is says,
       hey, would a reasonable person know this?

2 RP at 308. Sutley Rhoads did not object to this statement.

Conviction and Sentence

       The jury found Sutley Rhoads guilty of attempting to elude a pursuing police vehicle. As

part of the sentence, the trial court imposed a $500 crime victim penalty assessment. The

judgment and sentence provided that the LFOs would bear interest until paid in full.

       Sutley Rhoads appeals his conviction and the LFO interest accrual provision.

                                          ANALYSIS

A.     PROSECUTORIAL MISCONDUCT

       Sutley Rhoads argues that the prosecutor committed misconduct during closing argument

when he argued both that Campbell pursued Sutley Rhoads for nine minutes and that the jury

could find Sutley Rhoads had the required knowledge by applying a reasonable person standard.

We conclude that (1) the first statement did not constitute misconduct because the prosecutor

corrected his initial misstatement; and (2) the second statement was improper, but Sutley Rhoads

waived his challenge.

       1.   Legal Principles

       “Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair

trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). To

establish prosecutorial misconduct during closing argument, a defendant must show that the



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No. 52629-8-II


prosecuting attorney’s statements were both improper and prejudicial. State v. Allen, 182 Wn.2d

364, 373, 341 P.3d 268 (2015). We must consider the prosecutor’s conduct in the context of the

record and all the circumstances at trial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43

(2011).

          During closing argument, it is improper for a prosecutor to present facts not admitted as

evidence during the trial. Glasmann, 175 Wn.2d at 705. It also is improper for the prosecutor to

misstate the evidence presented at trial. See State v. Walker, 182 Wn.2d 463, 478, 341 P.3d 976

(2015). However, during closing argument, the prosecutor is given wide latitude to assert

reasonable inferences from the evidence. Glasmann, 175 Wn.2d at 704. In addition, “[a]

prosecuting attorney commits misconduct by misstating the law.” Allen, 182 Wn.2d at 373.

          Here, Sutley Rhoads did not object to the challenged statements. When the defendant

fails to object to the prosecutor’s statements, he or she “is deemed to have waived any error,

unless the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction could

not have cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653

(2012). The defendant must show that (1) no curative instruction would have eliminated the

prejudicial effect, and (2) the prejudice had a substantial likelihood of affecting the verdict. Id.

at 761. “Reviewing courts should focus less on whether the prosecutor’s misconduct was

flagrant or ill intentioned and more on whether the resulting prejudice could have been cured.”

Id. at 762.

          2.   Misstating the Evidence

          Sutley Rhoads argues that the prosecutor committed misconduct by asserting that the

pursuit was nine minutes long. As Sutley Rhoads notes, the evidence showed that the entire




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No. 52629-8-II


incident, not the pursuit, lasted nine minutes. Campbell testified that the “beginning of the stop”

occurred at 9:59 PM and that he read Sutley Rhoads his constitutional rights at 10:08 PM.

       The prosecutor initially stated that the pursuit itself lasted nine minutes: “We are talking

nine minutes of driving.” 2 RP at 315 (emphasis added). This statement was inconsistent with

the evidence because Campbell testified that the entire incident took nine minutes, including the

time he waited in his vehicle for backup after Sutley Rhoads pulled over and before arresting

him. Therefore, Campbell could not have been driving in pursuit of Sutley Rhoads for nine

minutes.

       However, Sutley Rhoads challenged this statement during his closing argument. And the

prosecutor clarified his misstatement on rebuttal: “The officer never said the pursuit lasted nine

minutes. He said he flipped on his radar detector, nine minutes later, he read him his Miranda

warnings.” 2 RP at 327 (emphasis added). This statement correctly characterized the evidence.

Therefore, considering the closing arguments in their entirety, we conclude that the prosecutor

did not commit misconduct.

       We hold that Sutley Rhoads’s prosecutorial misconduct claim on this basis fails.

       3.   Misstating the Legal Standard for “Knowledge”

       Sutley Rhoads argues that the prosecutor committed misconduct by suggesting that the

jury could find that Sutley Rhoads had the required knowledge by applying a reasonable person

standard.

       A person attempts to elude a police vehicle if he or she drives in a reckless manner and

willfully fails to immediately stop his or her vehicle after a uniformed police officer provides a

visual or audible signal. RCW 46.61.024(1). In this context, willfulness is identical to




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No. 52629-8-II


knowledge. State v. Flora, 160 Wn. App. 549, 553, 249 P.3d 188 (2011). The trial court

instructed the jury that a person acts willfully when he acts knowingly.

       RCW 9A.08.010(1)(b)(ii) states that a person acts knowingly when “he or she has

information which would lead a reasonable person in the same situation to believe” that a fact

exists. When knowledge is an element of a crime, “the jury must find actual knowledge but may

make such a finding with circumstantial evidence.” Allen, 182 Wn.2d at 374. As a result, it is

improper for a prosecutor to argue that the State need not prove actual knowledge and must only

show that a reasonable person would have known. Id. at 375. In instruction 6, the trial court

instructed the jury regarding the knowledge requirement.

       During closing argument, the prosecutor stated: “[W]e don’t have to try to climb into

someone else’s head and say what does that person know. That would be impossible. What it

does is says, hey, would a reasonable person know this?” 2 RP at 308 (emphasis added). We

agree with Sutley Rhoads that this statement improperly suggests that the State needed to prove

only what a reasonable person would have known, not what Sutley Rhoads actually knew. The

prosecutor should have informed the jury that the State must prove that Sutley Rhoads had actual

knowledge, but that actual knowledge can be established by considering what a reasonable

person would know.3

       Even though the prosecutor’s statements were improper, Sutley Rhoads’s failure to object

means that he must demonstrate that no curative instruction would have eliminated any




3
  Sutley Rhoads also challenges another statement the prosecutor made in rebuttal: “The law is
not that you have to know his intent. That’s not the law. This is the law. We can’t get inside of
his mind.” 2 RP at 328. However, the context of the statement clearly shows that the prosecutor
was addressing a separate intent requirement, not the knowledge requirement. He was directly
responding to Sutley Rhoads’s contention that the State had to prove his intent. Therefore, we
conclude that this statement did not misstate the knowledge requirement.


                                                7
No. 52629-8-II


prejudicial effect. Emery, 174 Wn.2d at 761. But here, the court could have instructed the jury

to disregard such statements and directed the jury’s attention to the proper standard for

knowledge contained in instruction 6. Therefore, we conclude that Sutley Rhoads waived his

challenge because any possible prejudice could have been cured by an instruction to the jury.4

       Sutley Rhoads argues that a reference to instruction 6 could not have cured the

prosecutor’s misstatements in this case because the instruction was an incorrect statement of law.

However, this instruction tracks the language of WPIC 10.02. 11 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.02 (4th ed. 2016). In addition, the

court in Allen expressly stated that an instruction with identical language as instruction 6

“correctly stated the law regarding ‘knowledge.’ ” 182 Wn.2d at 372. Therefore, we reject

Sutley Rhoads’s argument.

       We hold that Sutley Rhoads’s prosecutorial misconduct claim on this basis fails.

B.     INTEREST ON LFOS

       Sutley Rhoads argues, and the State concedes, that we should remand for the trial court to

strike the interest accrual provision in his judgment and sentence. We agree.

       In 2018, the legislature amended RCW 10.82.090, which now states that no interest will

accrue on nonrestitution LFOs after June 7, 2018. RCW 10.82.090(1). Therefore, we accept the

State’s concession and hold that the interest accrual provision should be stricken.




4
  In State v. Jones, Division Three of this court summarily held that referring the jury to the
knowledge instruction previously given to the jury could not have cured the prejudice resulting
from a similar closing argument. No. 36795-9-III, slip op. (Wash. Ct. App. May 19, 2020),
http://www.courts.wa.gov/opinions/pdf/367959_pub.pdf. We disagree.



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No. 52629-8-II


                                          CONCLUSION

        We affirm Sutley Rhoads’s conviction, but we remand for the trial court to strike the

interest accrual provision from the judgment and sentence.

        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.



                                                      MAXA, J.


 We concur:



 LEE, C.J.




 CRUSER, J.




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