                                                              CUUK i Of APP- •,! :-l :
                                                                STATE OF WASHWTi

                                                                20f^ APR 28 AH IQ: 2«

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF KENT,                                    No. 69401-4-


                    Appellant,                   DIVISION ONE

                   v.



EVERARDO BECERRA-AREVALO,                       UNPUBLISHED


                        Respondent.              FILED: April 28, 2014




      Cox, J. — We granted discretionary review of the superior court's RALJ

order reversing the conviction of Everardo Becerra-Arevalo for assault in the

fourth degree with sexual motivation. The superior court ruled that the

prosecutor committed misconduct by eliciting testimony on Becerra-Arevaio's

credibility and by commenting on Becerra-Arevaio's exercise of his constitutional

right to confront witnesses against him. Because Becerra-Arevalo fails to

establish that the statements, to which he failed to object below, were improper

and prejudicial, we reverse the superior court's order and reinstate Becerra-

Arevaio's conviction.

       On October 27, 2009, Becerra-Arevalo put his hands on Kelly Fitzpatrick's

breasts and attempted to kiss her at her place of employment. Fitzpatrick

reported the incident to the police. Thurston County Deputy Carrie Nastansky

responded to Fitzpatrick's report and investigated the allegation.
No. 69401-4-1/2



       The City of Kent charged Becerra-Arevalo with assault in the fourth

degree with sexual motivation.

       At trial, the City presented the testimony of Kelly Fitzpatrick, Deputy

Nastansky, and Teresa Plemmons-Hutchens, Becerra-Arevaio's supervisor.

Becerra-Arevalo also testified.      We describe this testimony in more detail later in

this opinion.

       The jury convicted Becerra-Arevalo of assault in the fourth degree with

sexual motivation.

       He filed a RALJ appeal in superior court asserting, among other claims,

that the City committed prosecutorial misconduct by eliciting improper opinion

testimony from Deputy Nastansky and by commenting on Becerra-Arevaio's

constitutional right to confront a witness against him. The superior court

reversed Becerra-Arevaio's conviction on these grounds, concluding that:

       [T]he cumulative effect of the combination of the police officer's
       comment on the credibility of the defendant and the emphasis by
       both counsel on lying during the officer's testimony with the
       comment on the defendant's presence during the witness's
       testimony when he had a constitutional right to be there require
       reversal and remand for retrial.111

       The superior court declined to address the additional issues

Becerra-Arevalo raised on appeal.

       We granted the City's motion for discretionary review.




       1 Clerk's Papers at 459-60.
No. 69401-4-1/3



                        PROSECUTORIAL MISCONDUCT

       The City asserts that the superior court erred by concluding that the

prosecutor committed misconduct. We agree.

       A defendant claiming prosecutorial misconduct bears the burden of

demonstrating that the challenged conduct was both improper and resulted in

prejudice.2 We review alleged misconduct "within the context of the prosecutor's

entire argument, the issues in the case, the evidence discussed in the argument,

and the jury instructions."3

                               IMPROPER CONDUCT

       Becerra-Arevalo contends, as he did on RALJ appeal, that several

incidents of misconduct deprived him of a fair trial. He first argues that the

prosecutor elicited impermissible opinion testimony on his credibility. He is

mistaken.

       On direct examination, Deputy Nastansky described her initial contact with

Becerra-Arevalo, which occurred on November 12, 2009. Deputy Nastansky

testified that her conversation with Becerra-Arevalo "was kind of odd because it

was - I don't want to say he was trying to hide something. He was very careful

about what he said and how he answered the questions."4 The following

exchange then occurred:




       2 State v. Cheatam. 150 Wn.2d 626, 652, 81 P.3d 830 (2003).
       3 State v. Dhaliwal. 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
       "Clerk's Papers at 110.
No. 69401-4-1/4



       [Prosecutor]:                Why did you have that opinion [that
                                    Becerra-Arevalo was being careful in
                                    answering your questions]?

       [Deputy Nastansky]:            Because he was slow to answer as if he
                                    were trying to come up with a story in
                                    his head versus just if something had
                                    happened you would be able to freely
                                    tell the story and you wouldn't have to
                                    think about it. You just say what
                                    happened, nothing to hide.

       [Prosecutor]:                  And did you get that perception with him
                                      here?



       [Deputy Nastansky]:            No. He was - it seemed to me like he
                                      was trying to hide something.[5]

       Generally, no witness may offer an opinion regarding the defendant's guilt

or veracity.6 A police officer's testimony on the veracity of another witness raises

additional concerns because "an officer's testimony often carries a special aura

of reliability."7 However, testimony that is not a direct comment on the

defendant's guilt or veracity, is helpful to the jury, and is based on inferences that

is not improper opinion testimony.8

       Deputy Nastansky's initial statements do not amount to improper opinion

testimony. Rather, they were based on her observations of Becerra-Arevaio's



       5 Clerk's Papers at 111 (emphasis added).
       6 State v. Kirkman, 159 Wn.2d 918, 927, 155 P.3d 125 (2007V State v. Rafav,
168 Wn. App. 734, 805, 285 P.3d 83 (2012), review denied. 176 Wn.2d 1023 (2013).
       7 Kirkman. 159 Wn.2d at 928.
       8State v. Fisher. 74 Wn. App. 804, 813-14, 874 P.2d 1381 (1994) (aff'd in part,
rev'dinpartsubnom., State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995)).

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No. 69401-4-1/5



demeanor when she confronted him about the allegation against him. Although

her statements may imply or suggest culpability, they were not direct comments

on Becerra-Arevaio's guilt.

       Nor was Deputy Nastansky's subsequent testimony improper. The

statements were invited by defense counsel's line of questioning.

      On cross-examination, Becerra-Arevaio's defense counsel inquired,

"And you said his answers were guarded? As far as you were aware did

you know if Mr. Becerra was aware of the claims that had been made

against him?" and, "The answers that were guarded as far as giving a

slow answer to was in response to his relationships with other females?"9

       During redirect examination, the prosecutor followed up on defense

counsel's questions concerning whether Becerra-Arevalo appeared

"guarded":

       [Prosecutor]:               Was [Becerra-Arevalo] also guarded
                                   with you on the events that occurred on
                                   October 27th?


       [Deputy Nastansky]:         Yes he was. And he lied to me also.
                                   He told me he didn't know why I was
                                   there, although he had already been
                                   contacted by the property manager, so
                                   you would assume that he would know
                                   why I was there.[10]




       9 Clerk's Papers at 117.
       10 Clerk's Papers at 120 (emphasis added).
No. 69401-4-1/6



      Then, on recross-examination, defense counsel posed numerous

questions regarding Deputy Nastansky's belief that Becerra-Arevalo lied to

her and appeared guarded, including the following:

      [Defense Counsel]:           You said he lied to you? That's a pretty
                                   bold statement by an officer, wouldn't
                                   you agree?111]

      [Defense Counsel]:           And you said that the reason you
                                   thought it was a lie was because this
                                   other person had talked to him
                                   previously?1121

      [Defense Counsel]:           You go from the perspective that
                                   someone's guilty of a crime. What
                                   about somebody that doesn't think
                                   they've committed a crime?113]

      [Defense Counsel]:           You classify this as a lie. You
                                   specifically said it was a lie.t14]

      [Defense Counsel]:           So what about that statement is a lie?[15]

      [Defense Counsel]:           If you were accused of a crime - most
                                   people that you deal with, when you
                                   accuse them of a crime, are they
                                   guarded?!16'

      [Defense Counsel]:           So you're saying just the people that are
                                   guilty are guarded?'171


       11 Clerk's Papers at 122.
       12 id
       13 Id
       14 Clerk's Papers at 124.
       15 Id
       16 Clerk's Papers at 125.
       17 Id.
No. 69401-4-1/7



      [Defense Counsel]:           And that's the statement that you're
                                   saying is a lie?[18]

       On second redirect examination, the prosecutor asked Deputy Nastansky

additional questions about her conclusion that Becerra-Arevalo lied to her.

      A prosecutor's remarks do not constitute misconduct if they are invited by

defense counsel or are in reply to defense counsel's acts unless they '"go

beyond a pertinent reply and bring before the jury extraneous matters not in the

record, or are so prejudicial that an instruction would not cure them.'"19

       Here, Deputy Nastansky testified on redirect and second redirect

examination concerning her belief that Becerra-Arevalo lied to her. But Becerra-

Arevaio's defense counsel opened the door to this line of questioning. As

detailed above, on cross-examination, defense counsel posed questions about

Becerra-Arevalo appearing "guarded." Subsequently, on re-cross examination,

defense counsel relentlessly inquired about Deputy Nastansky's stated belief that

Becerra-Arevalo lied to her and appeared guarded. The prosecutor's questions

on redirect and second redirect examination were a direct and pertinent response

to defense counsel's series of questions.

       Moreover, the prosecutor cannot be assigned fault for Deputy Nastansky's

declaration that Becerra-Arevalo had "lied to me also." Statements in response

to a prosecutor's questioning when not elicited by the prosecutor are not



       18 Clerk's Papers at 126.
       19 State v. Dennison. 72 Wn.2d 842, 849, 435 P.2d 526 (1967) (quoting State v.
LaPorte. 58 Wn.2d 816, 822, 365 P.2d 24 (1961)); State v. Jones. 144 Wn. App. 284,
299, 183 P.3d 307 (2008).

                                         -7-
No. 69401-4-1/8



characterized as prosecutorial misconduct.20 Deputy Nastansky volunteered her

opinion that Becerra-Arevalo had lied to her. The prosecutor did not pursue this

issue on redirect examination after Deputy Nastansky made that remark.

Instead, defense counsel reopened the issue on recross-examination. In light of

this sequence of testimony, the prosecutor's questions were not improper.

       Becerra-Arevalo additionally asserts that the prosecutor's closing

statements amounted to an improper comment on Becerra-Arevaio's

constitutional right to confront witnesses against him. We reject this contention.

       During closing argument, the prosecutor stated to the jury, "[Y]ou saw how

difficult it was for [Fitzgerald] to testify. You saw how painful it was for her to look

at the defendant. You saw how much she did not want to do that. You saw how

uncomfortable she was to be in this environment."21

       "The State can take no action which will unnecessarily 'chill' or penalize

the assertion of a constitutional right and the State may not draw adverse

inferences from the exercise of a constitutional right."22 Specifically, the State

may not invite the jury to draw a negative inference from the defendant's exercise

of a constitutional right.23 The right to confront witnesses against an accused is

one such right.24



      20 See State v. Junqers. 125 Wn. App. 895, 902, 106 P.3d 827 (2005).
      21 Clerk's Papers at 325.
      22 State v. Gregory. 158 Wn.2d 759, 806, 147 P.3d 1201 (2006) (quoting State v.
Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984)).
       23 Gregory. 158 Wn.2d at 806 (citing State v. Jones. 71 Wn. App. 798, 811-12,
863P.2d85(1993)).
      24 U.S. Const, amend. XI; Wash. Const, art. I, § 22.

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No. 69401-4-1/9



      But a prosecutor has wide latitude in closing arguments to draw

reasonable inferences from the facts in evidence and to express such inferences

to the jury.25 Moreover, "not all arguments touching upon a defendant's

constitutional rights are impermissible comments on the exercise of those

rights."26 The question is whether the prosecutor "manifestly intended the

remarks to be a comment on that right."27

      A review of the prosecutor's entire closing argument makes clear that her

statements were not in any way a comment on Becerra-Arevaio's exercise of his

constitutional rights. In closing, the prosecutor emphasized that the case hinged

on the witnesses' credibility and that the jury alone was responsible forjudging

credibility. The prosecutor's reference to Fitzpatrick's demeanor was in support

of her argument that the jury must consider the witnesses' motives and

credibility. No evidence demonstrates that the prosecutor's intention was to

comment on Becerra-Arevaio's right to confront witnesses against him.

      We conclude that the prosecutor's conduct was not improper.

                                       PREJUDICE


       Even assuming the prosecutor's comments were improper, Becerra-

Arevaio's prosecutorial misconduct claim fails because he does not satisfy the

heightened standard of review on appeal for prejudicial effect.

       Once a defendant establishes that the prosecutor's conduct was improper,

a reviewing court determines whether the defendant was prejudiced under one of

       25 Gregory. 158 Wn.2d at 860; Dhaliwal. 150 Wn.2d at 577.
       26 Gregory. 158 Wn.2d at 806.
       27 State v. Crane. 116 Wn.2d 315, 331, 804 P.2d 10(1991).
No. 69401-4-1/10



two standards of review.28 If the defendant objected at trial, "the defendant must

show that the prosecutor's misconduct resulted in prejudice that had a

substantial likelihood of affecting the jury's verdict."29 However, where, as here,

the defendant failed to object to the prosecutor's alleged misconduct, "the

defendant 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."30

       Under this latter heightened standard of review, Becerra-Arevalo carries

the burden of establishing that "(1) 'no curative instruction would have obviated

any prejudicial effect on the jury' and (2) the misconduct resulted in prejudice that

'had a substantial likelihood of affecting the jury verdict.'"31 Moreover,

"[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."32 Even flagrant misconduct can be cured.33

       Because Becerra-Arevalo did not object at trial to the prosecutor's alleged

misconduct, he must establish prejudice under the heightened standard. He fails

to meet this burden here.

       We first note that any prejudice derived from Officer Nastansky's remarks

was primarily attributed to defense counsel's persistent questioning regarding

       28 State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
       29 Id
       30 ]d at 760-61
       31 jd at 761 (quoting State v. Thorgerson. 172 Wn.2d 438, 455, 258 P.3d 43
(2011)).
        32 Jd at 762.
        33 Id at n.13 (citing State v. Warren. 165 Wn.2d 17, 27, 195 P.3d 940 (2008)).

                                          -10-
No. 69401-4-1/11



Deputy Nastansky's belief that Becerra-Arevalo was lying and her theories on the

relationship between being guarded and being guilty. As discussed above,

Becerra-Arevaio's defense counsel repeatedly posed questions to Deputy

Nastansky on this topic. This sequence of testimony diminishes Becerra-

Arevaio's contention that the prosecutor's conduct was flagrant or ill-intended.

Any prejudicial impact was exacerbated, if not initially caused, by defense

counsel.


       Second, Becerra-Arevalo cannot prove that a curative instruction would

not have obviated any prejudicial impact on the jury. To the contrary, any

prejudicial effect resulting from the prosecutor's alleged misconduct was

neutralized by the jury instructions.34 Here, the jury was instructed, "You are the

sole judges of the credibility of each witness. You are also the sole judges of the

value or weight to be given to the testimony of each witness."35 The instructions

also stated, "The lawyers' remarks, statements, and arguments are intended to

help you understand the evidence and apply the law. It is important, however, for

you to remember that the lawyers' statements are not evidence...."36 The

prosecutor referred to these instructions numerous times during closing

argument. We presume that the jury followed the court's instructions.37




       34 See State v. Montgomery. 163 Wn.2d 577, 595, 183 P.3d 267 (2008)
("Important to the determination of whether opinion testimony prejudices the defendant is
whether the jury was properly instructed.").
      35 Clerk's Papers at 8.
      36 jd
       37 State v. Stein. 144 Wn.2d 236, 247, 27 P.3d 184 (2001).

                                           -11 -
No. 69401-4-1/12



       Moreover, defense counsel made no effort to defuse the alleged prejudice

by requesting a curative instruction or objecting to the prosecutor's remarks. The

absence of a curative instruction or motion for mistrial strongly suggests that the

conduct was not prejudicial.38 Even "[i]f the prejudice could have been cured by

a jury instruction, but the defense did not request one, reversal is not required."39

Furthermore, "[c]ounsel may not remain silent, speculating upon a favorable

verdict, and then, when it is adverse, use the claimed misconduct as a life

preserver... on appeal."40 This appears to be the case here.

       Becerra-Arevalo also fails to show a substantial likelihood that the

prosecutor's statements affected the jury's verdict. Deputy Nastansky was not

the sole witness in this case whose testimony undermined Becerra-Arevaio's

credibility—Fitzpatrick and Plemmons-Hutchens also offered testimony

unfavorable to Becerra-Arevalo.

       Becerra-Arevalo testified that when Deputy Nastansky arrived to speak to

him on November 12, 2009, he did not know the reason for her visit and was

unaware of any allegations against him. Becerra-Arevalo further testified that his

manager, Teresa Plemmons-Hutchens, first spoke to him about the allegation on

November 12, 2009, after Deputy Nastansky had contacted him. But Plemmons-

Hutchens's testimony contradicted Becerra-Arevaio's statements. She testified

that she spoke to Becerra-Arevalo on November 2, 2009—10 days before

       38 See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).
       39 Dhaliwal. 150 Wn.2d at 578 (citing State v. Russell. 125 Wn.2d 24, 85, 882
P.2d 747 (1994)).
       40 Jones v. Hogan, 56 Wn.2d 23, 27, 351 P.2d 153 (1960).


                                          12
No. 69401-4-1/13



Deputy Nastansky contacted him—and informed him of the allegation against

him.

       Furthermore, during direct examination, Becerra-Arevalo denied visiting

the property where Fitzpatrick worked on the day ofthe assault. However, time
cards, written in Becerra-Arevaio's handwriting, proved contrary. They showed

that Becerra-Arevalo worked at Fitzpatrick's office building on the day of the

assault and at approximately the same time Fitzpatrick testified the assault
occurred. Plemmons-Hutchens also testified that Becerra-Arevalo told her that

he visited the property where Fitzpatrick worked on the day of the assault and
that Fitzpatrick was not there.

       Finally, on cross-examination, Becerra-Arevalo denied touching or kissing
Fitzpatrick. He also denied admitting to Plemmons-Hutchens that he assaulted
Fitzpatrick. But Plemmons-Hutchens later testified that, on November 12, 2009,
Becerra-Arevalo admitted to her that he had hugged and kissed Fitzpatrick.

Therefore, significant testimony conflicted with Becerra-Arevaio's version of
events surrounding the assault. He cannot demonstrate that any prejudice
substantially impacted the jury's verdict.
       Accordingly, Becerra-Arevalo fails to show that the heightened standard of
review for prejudicial effect has been met.
        Because we reverse on the prosecutorial misconduct issue, we need not
 resolve the City's additional claim of error concerning the admissibility of opinion
 testimony.



                                             13
No. 69401-4-1/14



      We reverse the RALJ court's order reversing Becerra-Averalo's conviction

and reinstate the municipal court's judgment and sentence.,

                                                        Gn^i-T
WE CONCUR:




                ITT                                           \f4L^




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