                                                                                                                  ILED
                                                                                                          C00T OF APPEALS

                                                                                                    20,
                                                                                                           ENOR   19 AM 8: 3 9
    IN THE COURT OF APPEALS OF THE STATE OF
                                                                                      WASHINGKN                   I;'a'AS1J GTOId
                                                  DIVISION II                                        ri

                                                                                                                   UT
STATE OF WASHINGTON,                                                            No. 43829 -1 - II


                                        Respondent,                         UNPUBLISHED OPINION




LISA ANN FLAMMINI,




             BJORGEN, J. —    Lisa Flammini appeals from her convictions for second degree burglary

and two counts of bail jumping, arguing that the State failed to present sufficient evidence to

support them. She also argues that the prosecutor engaged in misconduct during closing

argument and that the trial court erred in imposing a $ 745. 25 jury demand fee. We affirm her
                                                                        1
convictions      but   remand   for   correction of   her   sentence.



                                          I. SUFFICIENCY OF THE EVIDENCE


             Evidence is sufficient if, when viewed in a light most favorable to the State, it permits


any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). "           A claim of insufficiency admits

the truth of the State' s evidence and all inferences that reasonably can be drawn therefrom."

Salinas, 119 Wn.2d at 201.




1 A commissioner of this court initially considered Flammini' s appeal as a motion on the merits
under    RAP 18. 14     and   then transferred it to    a panel of judges.
No. 43829 -1 - II



A.        Second Degree Burglary


          On the afternoon of September 12, 2011, Cathy Ramirez saw an unfamiliar sport utility

vehicle had backed up to the garage of her neighbor' s house. She saw a woman sitting in the

vehicle and a man      knocking at the   neighbor' s     door   and   then   looking   in the   windows.   She wrote


down the license plate number of the vehicle. While doing so, she noticed that the woman had.

something like a cell phone or walkie- talkie in her hand, and that when she noticed Ramirez

looking at her, she put the item in front of her face. About five minutes later, the man walked up

to the passenger side of the vehicle, opened it and had a conversation with the woman. He then

got in the vehicle and it left.

          When Ramirez' s neighbor, Jamie Wilder, returned home, Ramirez toid her what had

happened. Wilder called the police and noticed damage to a door to her garage. Her husband,

Daniel, returned home and found that items in the garage had been piled near the door " like it

                            from that                                        Report        Proceedings ( RP) (   July 30,
was   going to be   moved                spot   to   somewhere else."                 of




2012) at 85. Neither Wilder had given anyone permission to be in their house that day. Ramirez

gave the police a statement.


          Based on Ramirez' s information, police identified the vehicle and went to the address


where it was registered. Chad Krizan, who matched the identification given by Ramirez, opened

the door. Police detained Krizan. Flammini came out and agreed to speak with the police. She

 said she and Krizan had gone to Fred Meyer and denied that they had been at the Wilder

residence.    She "   seemed   extremely   nervous."      RP ( July 30, 2012) at 107. When brought to the

 scene, Ramirez identified Krizan and Flammini as the man and woman she saw at the Wilder' s

 house.



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No. 43829 -1 - II



         Krizan was arrested and pleaded guilty to attempted burglary of the Wilder' s house. He

testified that Flammini was in the vehicle when he backed it into the Wilder' s driveway and that

she stayed in the vehicle while he kicked in the door to the garage, entered it and piled items near

the door. He said that he got back in the vehicle and drove away after he noticed Ramirez

watching him. He denied that Flammini knew that he was going to try to burglarize the Wilder

house   or   that   he had done       so.    In calls recorded by the jail where he was detained, however, he

told Flammini, " I'      m     just going to take this f* * * * charge for
                                                                * *                         you."       RP ( July 31, 2012) at 179.

He   also   told her that " I' m       gonna give a statement              to   get you off    this   s * * *"   and that he was going

to say that    she "   had     no   idea that anything       ever was supposed            to   go   down."           RP ( July 31, 2012) at

135, 151.      And in another call recorded from the jail, when his sister told him Flammini " was

just   as much at      fault   as you,"     he   replied, "[     Y] eah."       RP ( July 31, 2012) at 182. But at trial, he

said   Flammini " didn' t know              what   the   f* **   was   going      on."   RP ( July 31, 2012) at 189.

            In order for the jury to find Flammini guilty as an accomplice to Krizan' s admitted

burglary of the Wilder' s house, the State had to present sufficient evidence that she aided him in

planning      or   committing it. RCW 9A.08. 020( 3)(                  a)(   ii). She contends she was merely present at


the scene of the burglary, which is not sufficient evidence of accomplice liability. In re Wilson,

91 Wn.2d 487, 492, 588 P. 2d 1161 ( 1979);                        State v. McDaniel, 155 Wn. App. 829, 863, 230 P. 3d

245,   review      denied, 169 Wn.2d 1027 ( 2010). But the State presented evidence that ( 1) she was


sitting behind the       wheel of       the   vehicle after       it had backed into the Wilder'                 s   driveway, ( 2) when

she noticed Ramirez looking at her, she held something in front of her face, and ( 3) she was

extremely nervous when denying having been at the Wilder' s house. Further, the jail recordings




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No. 43829 -1 - II



are evidence of her knowledge of the burglary. The State presented sufficient evidence for the

jury to find her guilty as an accomplice to second degree burglary.

B.       Bail Jumping


         On December 28, 2011, Flammini was in court for a pretrial hearing. The court ordered

her to   appear   for   another   hearing   on   January    11, 2012. She declined to sign the order continuing


the pretrial hearing. She did not appear on January 11, 2012, and a bench warrant was issued.

She recalled having been ordered to appear but said she was unable to do so because of

electricity problems.


          On May 9, 2012, Flammini was back in court for a pretrial hearing. The court set over

the hearing to May 16, 2012 and ordered her to appear then. She again declined to sign the order

continuing the pretrial hearing. But she failed to appear on May 16, 2012, and a bench warrant

was issued. She acknowledged knowing of the May 16, 2012 hearing date and said she failed to

appear because it slipped her mind.


          In order to find Flammini guilty of bail jumping, the State had to prove beyond a

reasonable    doubt that    she   had " been     released   by   court order .   with knowledge of the


requirement of a subsequent personal appearance before" the court and then failed to appear.

RCW 9A.76. 170( 1).         Flammini argues that there was no evidence that she had been " released by

 court order."    Br. of Appellant at 8. But the State presented evidence that Flammini was allowed


to leave the court after being informed of the next appearance date. That is sufficient evidence of

 having been " released by         court order."    The State presented sufficient evidence for the jury to

 find her guilty of bail jumping on both January 11, 2012 and May 16, 2012.




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No. 43 829 -1 - II



                                        II. PROSECUTORIAL MISCONDUCT


         In addressing the court' s reasonable doubt instruction during closing argument, the

prosecutor argued as follows:


                   E] verybody sees it in different court cases or you see it on TV. They' ll
         say, well, I mean I listened to all the evidence, and I really think this guy did it.
         Like, I really think that he did whatever crime he was charged with, but they just
         didn' t prove it to me. Well, my response to that is, if you think that, if you walk
         out of the door and you think, I really think that guy did it, then I have proven it to
         you beyond a reasonable doubt. Because if you don' t think that, you would walk
         out and go, I don' t know. I just don' t think he did it. But if you walk out of here
         saying " I really think      she   did that," then I have proven it to you beyond a
         reasonable doubt. Because you have an abiding belief in the truth of the charge.
                When you say, " I just don' t think they proved it," you are holding the
         State to an inappropriate standard. That standard would be beyond a reasonable
         doubt —or beyond a shadow of a doubt, not beyond a reasonable doubt. This is
         the standard you' ve been given.


RP ( Aug. 1, 2012) at 394 -95.

         Flammini interprets this argument as telling the jury that in order to find her not guilty, it

would have to think that she did not commit the crime. This, she contends, eliminated the


possibility that the jury might conclude that the State had not proven beyond a reasonable doubt

that she committed the crime. The prosecutor' s argument improperly minimized the burden of

proof. But where, as here, the defendant does not object during the closing argument, a

prosecutor' s inappropriate argument does not constitute reversible prosecutorial misconduct


unless   the   argument     is "` so flagrant and ill-intentioned that it causes an enduring and resulting


prejudice      that   could not   have been   neutralized   by   a curative   instruction to the   jury. "'   State v.


Dhaliwal, 150 Wn. 2d 559, 578, 59 P. 3d 432 ( 2003) (               quoting St. v. Brown, 132 Wn.2d 529, 561,

 940 P. 2d 546 ( 1997)).      The impropriety in the prosecutor' s argument in this




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No. 43829 -1 - II



case could have been neutralized by a curative instruction. Therefore, Flammini does not

demonstrate that the prosecutor committed misconduct warranting reversal of her convictions.

                                         III. JURY DEMAND FEE


        Finally, Flammini argues that the trial court erred in imposing a $745. 25 jury demand fee
because RCW 36. 18. 016( 3)( b) limits that fee to $ 250 for a 12- person jury. The State responds

that Flammini should not be allowed to raise this issue for the first time on appeal, RAP 2. 5( a),

but agrees that the jury demand fee should have been $250. We elect to allow Flammini to raise

this issue for the first time   on appeal,   in the interests   of justice.   RAP 1. 2( c);    State v. Hathaway,

161 Wn.          634, 651 -52, 251 P. 3d 253 ( 2011).        We   agree   that the $ 745. 25   jury demand fee
          App.

exceeds the limit imposed by RCW 36. 18. 016( 3)( b) and remand Flammini' s sentence for

correction of that fee. Hathaway, 161 Wn. App. at 652 -53.

        We affirm Flammini' s convictions but remand for correction of her 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.




                                                             B ,$RGEN,
 We concur:




        J. "


                          t
 J6HANSON, A.C. J.

 IV

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