                                                                                :6 WV CI AON LIU
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,       )
                           )                     No. 75367-3-1
              Respondent,  )
                           )                     DIVISION ONE
         v.                )
                           )
BRADFORD MARSELAS JOHNSON, )                     UNPUBLISHED OPINION
                           )
             Appellant.    )                     FILED: November 13, 2017
                           )

       BECKER, J. — Bradford Johnson seeks reversal of his robbery conviction

based on alleged prosecutorial misconduct. We affirm.

       Two men robbed a medical marijuana dispensary in Everett on September

28, 2015. They threatened the store clerk with what appeared to be a gun and

made off with money and marijuana.

       Police identified Johnson and Garrett Comer as suspects. Both were later

charged with first degree robbery. Corner pled guilty, indicating in his plea

statement that he committed the crime with Johnson.

       Johnson's case went to trial in June 2016. The sole contested issue was

the identity of Corner's accomplice; the defense position was that the State

lacked sufficient proof that Johnson participated in the crime. The dispensary

clerk testified and identified Johnson as one of the robbers. Another State

witness, Corner's friend, testified that he saw Corner and Johnson on September
No. 75367-3-1/2

28 and Corner told him that he and Johnson had robbed the dispensary. The

jury also considered store security footage depicting the robbery. The footage

included images of Corner's accomplice sufficient to help the jury identify him.

Comer testified for the defense. He said that he committed the crime with an

unidentified "black male" who was not Johnson. Johnson did not testify.

       The jury returned a guilty verdict. Johnson was sentenced to 36 months'

confinement and 18 months' community custody. He appeals from the judgment

and sentence.

       Johnson argues that he was deprived a fair trial due to prosecutorial

misconduct. He must demonstrate that in the context of the record and all of the

circumstances of trial, the prosecutor's conduct was both improper and

prejudicial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d

673(2012). Misconduct is prejudicial if there is a substantial likelihood it affected

the jury verdict. Glasmann, 175 Wn.2d at 704.

       Johnson contends the prosecutor misrepresented testimony by Corner

about tattoos. Comer testified on direct in the defense case that he believed his

accomplice had a tattoo on his forearm that said "Loyalty" in cursive and "read

downwards from his elbow to his wrist." During cross-examination, Corner

testified that he has a tattoo on his own arm that says "Respect" in cursive. The

prosecutor asked,"So identical to the tattoo in the one you described on the

black male?" Comer responded,"No.. . . There's different sort of cursive fonts."

The prosecutor then asked,"But basically the same tattoos,'Respect' tattoo?"

Comer responded that he thought his accomplice's tattoo said "Loyalty." On


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redirect, Corner repeated that he believed his accomplice's tattoo said "Loyalty."

Police testimony established that Johnson does not have a "Loyalty" tattoo.

       In closing, the prosecutor argued that Corner was not a credible witness.

He suggested that Corner fabricated the story about his accomplice's tattoos by

using his own tattoo as a model. But it was the prosecutor who mixed up the two

tattoos. Although Corner consistently testified that he thought the accomplice's

tattoo was the word "Loyalty," the prosecutor asserted that Corner had first

described it as the word "Respect."

              He described this arm tattoo, and first he described it on
      direct as the word "Respect."
             And then on cross we asked, Well, wait. You have a tattoo
      that says "Respect." So you guys had matching tattoos?
             And then he said, No, no. no. I'm sorry. He had a tattoo, the
      black male had the tattoo "Loyalty." He couldn't remember his own
      story.
              Garrett Comer was coming up with these tattoos as he went
      along, and suddenly, he got confused. He started referencing his
      own tattoo instead of this black male's tattoo.
              Why? Because he's not telling truth. It's hard to keep lies in
      your mind and keep track.

A defense objection to these remarks was overruled.

       During defense closing argument, counsel described Corner's testimony

differentiating his tattoo from his accomplice's. Counsel reminded jurors to rely

on their recollection of witness testimony.

       The prosecutor raised the tattoo issue again on rebuttal:

              What the evidence is, is on June 3rd, Garrett Corner started
       talking about these tattoos. He came up with them. He's the one
       who created it. ...
              . . . Of course, he did make one mistake. Counsel didn't talk
       about this but let's do talk about it.
              The "Respect," because that's Garrett Corner's tattoo.
       Garrett Corner testified that it was the black male's tattoo. He

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No. 75367-3-1/4

      screwed up. Garrett Corner got confused about the story he was
      telling and corrected it and said it was "Loyalty."

      A prosecutor has wide latitude to argue reasonable inferences from the

evidence and may comment on a witness's veracity so long as a personal

opinion is not expressed and the comments are not intended to incite the jury's

passion. Glasmann, 175 Wn.2d at 704; State v. Stith, 71 Wn. App. 14, 21, 856

P.2d 415 (1993). A prosecutor may not mislead the jury by misstating the

evidence. State v. Guizzotti, 60 Wn. App. 289, 296, 803 P.2d 808, review

denied, 116 Wn.2d 1026 (1991). Johnson contends the prosecutor's remarks

about the tattoos and Comer's credibility were unsupported by the evidence and

conveyed the prosecutor's personal opinion that Corner was lying.

      Corner did not testify that Johnson had a "Respect" tattoo. The prosecutor

misstated the evidence by asserting that he did. But viewing the prosecutor's

remarks in the context of the record and all the circumstances of trial, we

conclude that the prosecutor simply misspoke in the above excerpts. We do not

view the remarks as a personal opinion on Corner's veracity or as a deliberate

attempt to mislead the jury. Aside from the tattoo testimony, there was ample

evidence to support an inference that Corner lacked credibility. For example, the

prosecutor suggested it was unrealistic that Corner would not know the name of

his accomplice, as Comer alleged, in light of his testimony that they had spent

time together on several occasions before the robbery. The prosecutor also

discussed Corner's assertion in his plea statement that Johnson was his

accomplice.



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No. 75367-3-1/5

       In any event, Johnson has not shown prejudice. He argues only that

"Identification of Corner's accomplice was the sole contested issue at trial, with

Corner's testimony being the heart of the defense." He does not explain with any

particularity how the challenged remarks affected the jury verdict.

       Appellate costs will not be imposed against Johnson. The State

recognizes costs may not be imposed because there has been no change in

Johnson's indigent status. RAP 14.2.

       Affirmed.


                                               13ei   cf4..e-e.f.
WE CONCUR:




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