 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                     DIVISION ONE

STATE OF WASHINGTON,                     )       No. 75701-6-1
                                         )
                     Respondent,         )
                                         )
          v.                             )
                                         )
ANTHONY KIMANI WANJIRU,                  )       UNPUBLISHED OPINION
                                         )
                     Appellant.          )       FILED: January 16, 2018
                                         )
      VERELLEN, C.J. — The State charged Anthony Wanjiru with one count of

domestic violence felony harassment. At trial, Wanjiru failed to object during the

State's closing argument that the victim, Wanjiru's wife, had the more credible

version of events. Because Wanjiru did not object during closing argument and

does not establish the prosecutors remarks were flagrant and ill intentioned, his

prosecutorial misconduct claim fails. And because Wanjiru does not establish

defense counsel's representation was deficient and the deficient representation

prejudiced him, his claim for Ineffective assistance of counsel also fails.

       We affirm.

                                       FACTS

      The State charged Anthony Wanjiru with one count of domestic violence

felony harassment, alleging that Wanjiru threatened to kill his wife, Hannah Mburu,

with a hammer within sight or sound of the couple's minor children. Following trial,
No. 75701-6-1/2


the jury convicted Wanjiru as charged. The parties jointly requested a first time

offender waiver sentence, and the court imposed the recommended sentence.

       Wanjiru and Mburu met and married in Kenya. Wanjiru came to the United

States in 2003 and began working as a nursing assistant. After three years,

Mburu and the couple's first child emigrated to be with Wanjiru. Mburu also found

employment as a nursing assistant Wanjiru worked day shifts, and Mburu worked

nights. They did not comingle their funds, but divided expenses such that Wanjiru

paid the home mortgage and Mburu paid for utilities, food, diapers, and other

expenses. Both incomes were necessary to support the household. Over time,

Wanjiru and Mburu had two other children. At the time of trial, the children were

10, 5, and 3 years old.

       By 2015, Wanjiru and Mburu were having marital problems. Mburu felt that

Wanjiru tried to control her by keeping her at home, making it difficult for her to

speak with friends, and accusing her of infidelity. Wanjiru's jealousy culminated in

two incidents in October 2015.

       On Saturday, October 3, Mburu and two of the children came home after a

birthday party. Wanjiru was suspicious that Mburu had not actually been at the

party. He was angry, aggressive, and refused to speak to the party hosts when

Mburu suggested they would confirm she had actually been at the party. Wanjiru

called Mburu's father to complain that she had come home late without a suitable

explanation. Mburu told Wanjiru that she wanted a separation because of the

arguments and repeated accusations of infidelity. The ensuing argument became




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No. 75701-6-I/3


a physical fight, and Wanjiru hit Mburu in the head at least twice. Mburu was

concerned for her safety and spent the night in the spare bedroom.

       Mburu went to work the next evening, returning home around 8:00 a.m.,

which was the usual time. She prepared her oldest child for school and sent him

on the bus, made breakfast, and went to bed in the spare room while her younger

sons continued to sleep. Wanjiru woke up around 10:00 a.m. and told Mburu to

get up and make him breakfast. Mburu declined, knowing that the children had

something to eat and that she needed to sleep.

       Wanjiru eventually demanded Mburu's car keys. Mburu believed that he

intended to sell the car to punish her. Mburu kept the door locked and refused to

give him the keys. Wanjiru began hitting and kicking the door. He had a hammer

in his hand. Wanjiru yelled at Mburu,saying he would take her car and the

children if they separated. Wanjiru threatened to break Mburu's legs with the

hammer and threatened to kill her. Wanjiru did not stop until Mburu told him she

was recording the incident on her cellphone.

       Mburu was afraid for her life. Based on his behavior and the physical

abuse on October 3, she believed that Wanjiru would attack her with the hammer.

She barricaded herself in the spare room and called 911.

       Several police officers reported to the scene. Using a loudspeaker, Officer

VViggum announced the police presence and repeatedly ordered Wanjiru to come

outside with empty hands raised. After several commands, Wanjiru came out of

the house and was handcuffed. The first thing Wanjiru said to the officers was




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"Where is the evidence?"1 Though Mburu and the officers looked inside and

outside of the house, they were unable to locate any hammer.

       Officers had difficulty obtaining a statement from Mburu because one child

was out of control. The officers described Mburu's demeanor as fearful, scared,

frantic, shaken, not calm, very upset, distraught, and nervous. Officer Giger

confirmed that Mburu had barricaded the door to the spare room. Mburu showed

the cellphone video to Officer Hensing, who confirmed that he heard banging and

a male voice shouting In a language he could not understand.2 Mburu told police

about Wanjiru's threats and about being hit two days earlier and said that she was

afraid for her life. Wanjiru was arrested.

       Wanjiru testified at trial. He described the night that Mburu came home late

with the two children. Although he claimed they did not argue that night and he did

not hit her, he did admit that when Mburu barricaded herself in the spare room,"I

knew she was afraid from Saturday."3 Wanjiru denied threatening Mburu on

October 5 and denied touching a hammer that day.

       Wanjiru appeals.




       1 Report of Proceedings(RP)(July 18, 2016) at 263.
       2 Before Mburu could send the video to the officers by email, the child who
was upset during the police interview broke the phone, and attempts to retrieve
data from the phone were unsuccessful.
       3 RP (July 18, 2016)at 307.


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No. 75701-6-1/5


                                        ANALYSIS

                                Prosecutorial Misconduct

       Wanjiru contends the prosecutor committed reversible misconduct in

closing argument by misstating the facts and improperly shifting the burden of

proof, violating Wanjiru's right to a fair trial.

       The United States and Washington Constitutions guarantee every

defendant a fair tria1.4 A defendant who claims on appeal that prosecutorial

misconduct deprived him of a fair trial bears the burden of establishing that the

conduct was both improper and prejudicial.° The defendant must establish a

substantial likelihood that the improper conduct affected the jury's verdict.°

       Here, Wanjiru did not object to the remarks that he now challenges on

appeal. A defendant who does not make a timely objection at trial waives any

claim on appeal unless the misconduct at issue is "'so flagrant and ill-intentioned

that it evinces an enduring and resulting prejudice'" that could not have been

neutralized by a curative instruction to the jury.7 The absence of an objection by

defense counsel "strongly suggests to a court that the argument or event in

question did not appear critically prejudicial to an appellant in the context of friar°




       4 U.S. CONST. amends. V, VI; WASH.CONST. art. I, § 3.

       5 Statev. Fisher, 165 Wn.2d 727,746-47, 202 P.3d 937(2009).
      6 State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006).

      7 Fisher, 165 Wn.2d at 747(quoting State v. Greaorv, 158 Wn.2d 759, 841,
147 P.3d 1202(2006)).
      5 State v. Swan, 114 Wn.2d 613,661, 790 P.2d 610(1990).




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No. 75701-6-1/6


"'Counsel may not remain silent, speculating upon a favorable verdict, and then,

                                                          ... on appeal."
when it is adverse, use the misconduct as a life preserver.

       A prosecutor may commit misconduct by arguing in closing that the defense

failed to present witnesses or explain the factual basis of the charges, or asserting

the jury should find the defendant guilty because he did not present evidence to

support his theory of defense." But merely mentioning "that defense evidence is

lacking does not constitute prosecutorial misconduct or shift the burden of proof to

the defense.fill

       Here, In closing argument the prosecutor said the jury should credit Mburu's

version of events over Wanjiru's because Mburu's version was supported by other

evidence, while Wanjiru's was not. The prosecutor highlighted the officer's

testimony that Mburu was very distraught, shaken,teary, and trembling when she

reported that Wanjiru had threatened her, that Officer Giger confirmed the door to

the spare bedroom had been barricaded, and that Officer Hensing had

corroborated Mburu's testimony about the cellphone video of someone banging on

the door and shouting. The prosecutor also pointed to Mburu's petition for a

protection order, in which Mburu described the same events. In contrast, Wanjiru

testified that he never hit or threatened Mburu, which contradicted his own

testimony that he "knew she was afraid from Saturday.“12


       9 Statev. Russell, 125 Wn.2d 24, 93,882 P.2d 747(1994)(quoting Jones
v. Hogan, 56 Wn.2d 23, 27, 251 P.2d 153(1960)).
      "State v. Jackson, 150 Wn. App. 877,885, 209 P.3d 553(2009).
       11 Id. at 885-86.
       12 RP at(July 18, 2016)at 307.




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No. 75701-6-I17


       The prosecutor also explained that the State had the burden of proof. The

prosecutor did not assert or imply that Wanjiru was required to provide evidence;

he merely argued that the evidence Wanjiru chose to present was not credible,

specifically in light of evidence tending to corroborate Mburu's version of events.

       We conclude the prosecutor did not attempt to shift the burden, but argued

reasonable inferences from the evidence presented.

       Wanjiru also contends the prosecutor committed misconduct by arguing the

jury would have to find the State's witnesses were lying in order to acquit him.

       It is improper for a prosecutor to argue that in order to acquit a defendant,

the jury must find that the State's witnesses are either lying or mistaken.13 This

line of argument mischaracterizes the burden of proof because the jury must

acquit unless it has an abiding conviction in the truth of the State's evidence." It

is also improper for a prosecutor to argue that in order to believe the defendant,

the jury must find that the State's witnesses are lying." That misleads the jury

because the jury could believe the defendant and find the State's witnesses were

truthful but mistaken.16



       13 State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076(1996)(holding
the prosecutor's comments were flagrant and ill intentioned where the prosecutor
argued,"[F]or you to find the defendants, Derek Lee and Dwight Fleming, not
guilty of the crime of rape in the second degree,... you would have to find either
that[D.S.] has lied about what occurred in that bedroom or that she was confused;
essentially that she fantasized what occurred in that bedroom."(emphasis omitted)
(second alteration in original)).
        14 id.

       15 State v. Wright, 76 Wn. App. 811, 826,888 P.2d    1214(1995).
       16   Id.


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No. 75701-6-1/8


      Here, the prosecutor asked rhetorically,"What this really boils down to is[]

Ms. Mburu, is she mistaken or is she lying?"17 The prosecutor argued that

corroborating evidence from the officers demonstrated that Mburu was neither

lying nor mistaken and thus, the jury should credit her testimony. He argued that it

was "simply not reasonable" to think that the officers would have provided that

consistent, corroborating evidence if it was not true.18 "They would have to all be

in on some conspiracy against Mr. Wanjiru for them all to be Involved."

      The State did not present the jury with a false choice between believing

Wanjiru or believing the State's witnesses were lying, or between the State's

witnesses or acquitting Wanjiru.

       Wanjiru did not object to the State's closing argument at trial, but contends

the alleged misconduct warrants reversal.

       Wanjiru must show that the alleged misconduct was "'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."20

       In State v. Barrow, this court held there was misconduct where the

prosecutor argued the defendant had effectively called the police witnesses liars

by giving contradictory testimony and by telling the jury that "in order for you to find

                        ... you have to believe his testimony and you have to
the defendant not guilty.


       17 RP (July   18, 2016)at 360.
       18 Id.
       19 Id.

       20 Statev. Thomerson, 172 Wn.2d 438,443,258 P.3d 43(2011)(quoting
State v. Russell, 125 Wn.2d 24,86,882 P.2d 747(1994)).


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No. 75701-6-1/9


completely disbelieve the officers' testimony. You have to believe that the officers

are lying.”21 The court concluded, though improper, the argument did not warrant

reversal because defense counsel did not further object, request that the argument

be stricken, or ask for a curative instruction.22 The court observed that Iclounsel

clearly could have minimized the impact of this argument if he had taken any of

these steps. A curative instruction particularly could have obviated any prejudice

engendered by these remarks:23

       Wanjiru does not establish a substantial likelihood that challenged remarks

affected the jury's verdict. His testimony was confusing and contradictory. He

denied arguing with, hitting, or threatening Mburu when she returned late from the

party. He admitted that he knew she was afraid of him because of his response to

that incident, and then denied that testimony. He testified that he did not hear the

police loudspeaker demanding that he exit the house or the rocks the officers

threw at the front door, only looking outside when Mburu pointed out the window.

But he expressed no confusion about the officers' presence and immediately

asked them "Where's the evidence?“24 He also said he owned two hammers that

were kept in usual locations, but neither Mburu nor the police found either one.

       And Wanjiru's theory that Mburu invented the threat to withdraw $1,000

from Wanjiru's bank account while he was in jail and then live rent free with the



       21 60 Wn. App. 869, 874-75, 809 P.2d   209(1991).
          Id.at 876.
       23 Id.

       24 RP (July 18, 2016)at 263.




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No. 75701-6-1/10


children in the family home was not compelling in light of the evidence that

Wanjiru always paid for housing and that the family needed both incomes. Even if

the prosecutor's remarks were improper, Wanjiru does not establish that a curative

instruction could not possibly have neutralized any prejudice.

       Considering the evidence, arguments, and jury instructions about the

burden of proof and the jury's role in determining witness credibility, we conclude it

is unlikely the prosecutor's remarks affected the jury's verdict.

                          Ineffective Assistance of Counsel

       Wanjiru argues his attorney was ineffective in failing to object during closing

argument.

       To establish ineffective assistance of counsel, Wanjiru must show both that

counsel's representation was deficient and that defense counsel's deficient

representation prejudiced him.25 The inquiry is whether counsel's conduct"so

undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result:28

       We begin with a strong presumption that counsel's representation was

effective." The defendant must also show prejudice.28 Prejudice is not

established by a showing that an error by counsel had some conceivable effect on



       25 Inre Pers. Restraint of Hutchinson, 147 Wn.2d 197, 206, 53 P.3d 17
(2002); Strickland v. Washinaton,466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d
674(1984).
      28 Strickland, 466 U.S. at 686.

       21 Id. at 689.

       28 Id. at 693.




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No. 75701-6-1/11


the outcome of the proceeding.29 The defendant must establish a reasonable

probability that, but for counsel's errors, the result of the proceeding would have

been different.3°

       Here, Wanjiru suggests "the jury would have been far more likely to find

reasonable doubt regarding Mburu's fear and her testimony in general" without the

prosecutor's comments, which Wanjiru claims shifted the burden of proof.31 But in

view of the strength of the State's evidence, Wanjiru does not establish that a

timely objection or request for a curative instruction would have changed the

outcome of his trial.

       Because Wanjiru does not establish deficient performance or resulting

prejudice, we conclude his ineffective assistance of counsel claim fails.

       We affirm.




WE CONCUR:




       29 Id.

             at 694.
       31 Appellant's Br. at 13.




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