                                                                                    ILED
                                                                              CR) T OF APPEALS
                                                                                R
                                                                                   VISIM1 1

                                                                             2013 ,SUN -4     AM $:    58

                                                                             STATE OF WASHINGTH

                                                                             SY        AA-
                                                                                      11FUTY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                DIVISION II


STATE OF WASHINGTON,                                                   No. 43375 3 II
                                                                                 - -


                                   Respondent,

       V.




VERNON LEE SHELTON, aka VERNON                                    UNPUBLISHED OPINION
LEE OROURKE




       HUNT, J. — Vernon Lee Shelton (aka Vernon Lee Orourke) appeals his jury trial

convictions for     attempting   to    elude, driving while license suspended, and bail jumping. He

argues that (1)
              prosecutorial misconduct during closing argument violated his right to a fair trial,

and (2)his attorney provided ineffective assistance in failing to object to this prosecutorial

misconduct. We affirm.

                                                    FACTS


       At 5 A. . on January 10, 2011, Clark County Sheriff's Deputy Todd Richard Young was
             M

on patrol in a marked patrol vehicle when he noticed a blue Geo Storm driving on 76th Street in

Orchards, Washington. From' bout six to ten feet away, Young recognized the driver as Vernon
                          a

Lee Shelton. Aware that Shelton's driving status was suspended or revoked,"
                                   "                                      Young made a U-

turn to "initiate   a   traffic stop   on   Mr. Shelton" and activated his emergency    lights.   Verbatim


Report of Proceedings (VRP) Vol. 1) at 56. Shelton signaled
                            (                                           as   if he   were   planning   to   pull
No. 43375 3 II
          - -



over; then he accelerated and drove through a stop sign. Consistent with the sheriff's pursuit

policy, Young did not pursue Shelton.

          Six months later, at 3:5 A. . on July 6, 2011, Young again saw the blue Geo Storm,
                                1   M

noticed a black male adult in the driver's seat that appeared to be Mr. Shelton,"
                                                                                and again tried

to    stop the Geo. VRP (Vol. 1) at 63. The Geo stopped. Young pulled behind the Geo,

illuminated his patrol car's spotlights, walked up to the driver's side of the Geo, and shined his

flashlight on the car window; Young was certain the driver was Shelton. Shelton looked back at

Young and drove away. Young returned his patrol car and pursued Shelton. After following

Shelton    through   a   red stop   light, Young   activated his siren.   According to Young, Shelton

blacked out"all of the car lights and sped away. VRP (Vol. 1) at 67. Young, again, had to

discontinue the chase.


          The State charged Shelton with two counts of attempting to elude, two counts of driving

while his license    was    suspended, and   one   count of bail   jumping. At trial, Young testified as,

described above. Shelton's former girlfriend, Jessica M.Webber, testified that ( ) had been
                                                                               1 she

driving the Geo both times that Young had attempted a traffic stop, and (2) had decided to
                                                                           she

drive away from Young because she was unsure whether her license was suspended. Shelton did

not testify.

          In closing argument, the prosecutor stated that the State's evidence supporting many of

the elements of the charged crimes was "uncontested." VRP (Vol. 2)at 245. For example, he

argued: ( 1)That Shelton's license was suspended] has been proven beyond a reasonable
             "[

doubt. There's been no evidence put forth to the contrary";' ( that Young signaled to the blue
                                                          2)

1
     VRP ( ol.2)at 245 46.
         V             -

                                                       2
No. 43375 3 II
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Geo's driver to stop    was "uncontested    ";   and (3)that the offenses occurred in the state of

Washington was also not contested. Turning to the disputed element, the prosecutor then argued,

T] e main issue is whether or not it was the Defendant driving the motor vehicle."VRP (Vol.
 h

2) at 261. After reminding the jury that they were the "sole judges of the credibility of the

witnesses, " the prosecutor compared Young's testimony with Shelton's girlfriend's,
                                                                                  testimony:

         Do you believe that Detective Young on those days where he describes in detail
         what he saw, do you believe him as to what he saw?Or are you to believe Jessica
         Webber and what she tells everybody ten months later, with that close of a
         relationship with Mr. Shelton? Do you believe Jessica Webber when the facts are
         different as to where the lights, the emergency lights were turned on?When the
         facts are different as to whether or not the lights on the vehicle were on or off?
         When the facts are different ...
         Ladies and gentlemen, I' not going to go much more into it. You've heard it all,
                                  m
         you know the issues, it just comes down to the reasonableness of the testimony
         and what you believe. Okay. We would submit what Jessica Webber told us.and
         the reasons why she's telling us and the facts circumstancing how that
         information comes out are not reasonable. I'e told you why, you've heard why.
                                                    v
         Her testimony is not reasonable, is not true based on the facts.

VRP (Vol. 2)at 268, 269; see also VRP (Vol. 2)at 265 66 ( uestioning the reasonableness of
                                                     - q

Webber's account).The jury convicted Shelton on all counts. Shelton appeals.
                                             ANALYSIS


                                   I. PROSECUTORIAL MISCONDUCT


         Shelton first argues that the prosecutor committed misconduct by shifting the burden of

proof in closing argument. This argument fails.



2
    VRP ( ol.2)at 258.
        V
3
    VRP ( ol.2)at 264.
        V
4
    A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 4 and then referred it to a panel ofjudges.
      1

                                                    3
No. 43375 3 II
          - -



                                                A. Standard of Review


         To prevail on a claim of prosecutorial misconduct, Shelton must show "` hat the
                                                                               t

prosecutor's conduct was both improper and prejudicial in the context of the entire record and
the circumstances at trial. "' State          v. Magers, 164 Wn. d 174, 191, 189 P. d 126 (2008)quoting
                                                               2                  3              (

State   v.   Hughes,        118 Wn.                                      Shelton must demonstrate
                                      App. 713, 727, 77 P. d 681 ( 2003)).
                                                         3


prejudice by proving that "`
                          there is a substantial likelihood [that] the instances of misconduct

affected the       jury's   verdict. "'   Magers, 164 Wn. d at 191 (alteration in original) quoting State v.
                                                        2                                   (

Pirtle, 127 Wn. d 628, 672, 904 P. d 245 (1995)); v. Dhaliwal, 150 Wn. d 559, 578, 79
              2                  2             State                 2

P. d 432 (2003).And because trial counsel did not object, the "failure to object to an improper
 3

remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it

causes an enduring and resulting prejudice that could not have been neutralized by an admonition

to the jury."State v. Russell, 125 Wn. d 24, 86, 882 P. d 747 (1994),
                                     2                2             cent. denied, 514 U. .
                                                                                       S

1129 (1995);
           accord State v. Fisher, 165 Wn. d 727, 747, 202 P. d 937 (2009)
                                         2                  3

         A prosecutor commits misconduct by misstating the law regarding the burden of proof.

State v. Fleming, 83 Wn. App. 209, 213 14,921 P. d 1076 (1996),
                                       -       2              review denied, 131 Wn. d
                                                                                   2

1018 (1997); re Winship, 397 U. . 358, 361 62,90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) a
           In                 S            -                                          (

defendant has no duty to present evidence). A prosecutor commits misconduct by implying the

defense bears a burden to produce evidence of innocence. Fleming, 83 Wn. App. at 213 14. It
                                                                                     -

is also improper for a prosecutor to assert a personal opinion about a witness's veracity or to

argue that in order to believe the defendant's evidence the jury must believe that the testifying

officers     are   lying. See State v. Fiallo-
                                             Lopez, 78 Wn. App. 717, 730, 899 P. d 1294 (1995)
                                                                               2

citing State v. Reed, 102 Wn. d 140, 145, 684 P. d 699 (1984)); v. Barrow, 60 Wn. App.
                            2                  2             State

869, 874 75,809 P. d 209 ( 991).
         -       2       1
                                                           M
No. 43375 3 II
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       During closing arguments, however, we afford the prosecutor wide latitude in making

arguments and drawing reasonable inferences from the evidence. Fisher, 165 Wn. d at 747. We
                                                                             2

review a prosecutor's remarks during closing argument in the context of the total argument,the

issues in the case, the evidence addressed in the argument, and the jury instructions. Dhaliwal,

150 Wn. d at 578.
      2


                                       B. Burden Shifting

                                  1. No contradicting evidence

       Here, the prosecutor did not improperly shift the burden of proof by emphasizing that

certain evidence was uncontradicted. Rather, he simply pointed out that there was no evidence

contradicting the   State's evidence of certain elements of the   charged   crimes. "`The mere


mention that defense evidence is lacking does not constitute prosecutorial misconduct or shift the

burden of proof to the defense. "' State v. Sells, 166 Wn. App. 918, 930, 271 P. d 952 (2012)
                                                                               3

quoting State v. Jackson, 150 Wn. App. 877, 885 86,209 P. d 553 (2009)),
                                                -       3             review denied, 176

Wn. d 1001 (
  2            2013). Thus, we hold that the prosecutor did not commit misconduct by

commenting that there was no evidence presented to contradict the State's evidence."Sells, 166

Wn. App. at 930; see also State v. Killingsworth, 166 Wn. App. 283, 290 92,269 P. d 1064,
                                                                        -       3

review denied, 174 Wn. d 1007 (2012).
                     2

                             2. Remarks about Webber's testimony

       Similarly,the prosecutor did not shift the burden of proof by " uggest[ing] jurors had
                                                                     s            that

to believe [Webber's]
                    testimony over [Young's] order to acquit."Br. of Appellant at 6. On
                                           in

the contrary, counsel may comment on a witness's credibility as long as he does not express it as

a personal opinion and does not argue facts outside the record. State v. Smith, 104 Wn. d 497,
                                                                                      2

510 11, 707 P. d 1306 (1985). Thus,
    -        2                            a prosecutor may properly draw inferences "from the
                                                5
No. 43375 3 II
          - -



evidence as to why the jury would want to believe one witness over another."State v. Brett, 126

Wn. d 136, 175, 892 P. d 29 (1995); also State v. Copeland, 130 Wn. d 244, 290, 922 P. d
  2                  2            see                             2                  2

1304 (1996).

       Here, the portion of the prosecutor's argument focusing on Webber's testimony was

intended to assist the jury in determining the witnesses' credibility and . evaluating the

reasonableness of   conflicting testimony: The prosecutor merely emphasized the substantial

conflicting testimony, pointed out aspects of the testimonies that were inconsistent or

irreconcilable, discussed Webber's possible motives to present false testimony, and argued that

the jury. would have to examine the testimonies to determine which was most credible.

Reviewing the prosecutor's closing remarks in the context of the total argument, the issues in the

case, the evidence addressed in the argument, and the jury instructions, we hold that this closing

argument was not misconduct.

                            II. EFFECTIVE ASSISTANCE OF COUNSEL


       Shelton argues that his trial counsel's failure to object to the alleged prosecutorial

misconduct constituted ineffective assistance of counsel. This argument also fails.

       To demonstrate ineffective assistance, a defendant must show that (1)defense counsel's

representation was deficient because it fell below an objective standard of reasonableness; and

2) deficient representation prejudiced the defendant because there is a reasonable probability
  the

that the result of the proceeding would have been different except for counsel's errors. State v.

McFarland, 127 Wn. d 322, 334 35, 899 P. d 1251 (1995).Failure to show either prong of the
                 2            -        2

test defeats a claim of counsel's ineffective assistance. Strickland v. Washington, 466 U. . 668,
                                                                                         S

697, 104 S. Ct. 2052, 80 L.Ed. 2d 674 (1984);
                      .                     State v. Brockob, 159 Wn. d 311, 344 45, 150
                                                                    2            -

P. d 59 (2006). Further,
 3                          "[ here a claim of ineffective assistance of counsel rests on trial
                            w]
                                                6
No. 43375 3 II
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counsel's failure to object, a defendant must show that an objection would likely have been

sustained."State v. Fortun-
                          Cebada, 158 Wn. App. 158, 172, 241 P. d 800 (2010).Because we
                                                              3

hold that the prosecutor did not commit misconduct, Shelton cannot show that his trial counsel

was deficient in failing to object. Therefore, his argument fails on the first prong of the test, and

we need not address the second.


       We affirm.


       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

040,
2.6.it is so ordered.
 0




                                                      Hunt, J.
We con fir:



 A
WOswick, C. .
          J


Q inn -
      Brintnall, J.




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