 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 69949-1-1
                       Respondent,
                                                 DIVISION ONE
              v.                                                              m    ,n0
                                                 UNPUBLISHED OPINION          f?   ^
OLLIE FANIEL RICHARD,                                                         CO   .-e--or
                                                                                   c n m'    :

                       Appellant.                FILED: December 23, 2013 ^        5e£
                                                                                   —'o
                                                                                   o   —-



       Per Curiam.       Ollie Richard appeals his conviction for possession of

methamphetamine. He contends the prosecutor committed misconduct when, in

response to defense arguments that "we know" the police plant drugs on

innocent people, he asked the jurors to consider their experiences with police,

that they depend on them, and that the officers patrol on their bicycles even in

the rain. We affirm.

                                      FACTS

       On November 11, 2011, police arrested Richard on an outstanding

warrant and discovered methamphetamine during a search of his person incident

to arrest.     The State charged him with violating the Uniform Controlled

Substances Act, chapter 69.50 RCW.

       At trial, the State presented testimony of three officers and a forensic

scientist.   Richard testified in his defense.   He denied possessing drugs and

accused the police of arresting him for drugs that were in their possession, not

his.

        During closing argument, defense counsel argued in part:

               Common sense and experience? Yeah, sure.            We know
        from common sense and experience that the officers in question
        were working a proactive unit - in other words looking for things -
No. 69949-1-1/2



      looking for things to do - and what Mr. Richard described to you,
      ladies and gentleman, is proactivity on the part of the officers. They
      huddled. Voila. the substance appeared.
            It may be disturbing but based on what we know from our
      common experience, indeed these things happen.

             This is what really happens out there.[1]

In rebuttal, the following exchange occurred:

              [Prosecutor]: Just because Mr. Richard said that on the
      stand does not mean you have to accept it because you are the
      sole judges of the credibility of witnesses.
              It is not just Officer Hatzenbuehler being accused here, it is
      all three of them. It is all three officers, and I submit to you, using
      your common sense, your reason, your life experiences, you
      depend upon these people every day. Every time it rains those
      patrol officers are on their bicycles --

             [Defense Counsel]: Objection, that is improper at this point,
      Your Honor.


             [The Court]: Mr. Hamilton, if you could move on?

             [Prosecutor]: We ask you to reject that testimony. He had
      the drugs, he was caught, and it is drugs. It was tested by the lab
      and it was confirmed. Thank you.[2]

      A jury convicted Richard as charged. He appeals.

                                     ANALYSIS

      Richard contends the prosecutor's rebuttal arguments amounted to

misconduct. To prevail on a claim of prosecutorial misconduct, the defendant

must establish "that the prosecutor's conduct was both improper and prejudicial




1(Emphasis added.)
2(Emphasis added.)
No. 69949-1-1/3



in the context of the entire record and the circumstances at trial."3 Otherwise

improper remarks "are not grounds for reversal if they were invited or provoked

by defense counsel and are in reply to his or her acts and statements, unless the

remarks are not a pertinent reply or are so prejudicial that a curative instruction

would be ineffective."4

       Here, the challenged remarks were made in direct response to defense

counsel's argument that "[c]ommon sense and experience" indicate that police

officers conspire to plant drugs on innocent people. The prosecutor called on the

jury to consider other common experiences with police, including their

dependability and devotion to duty. These remarks were a direct and arguably

pertinent response to Richard's argument.

       But even assuming the remarks were not pertinent, Richard cannot

establish prejudice. Improper remarks are prejudicial only if there is a substantial

likelihood that the instances of misconduct affected the verdict.5 Richard asserts

that the prosecutor's remarks were "highly charged" and an attempt "to arouse

the sympathies and fears of the jurors . . . ."           We disagree with this

characterization. The prosecutor's comments were relatively benign, especially

in comparison to defense counsel's accusations of police               misconduct.


3 State v. Thorgerson. 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal
quotations marks omitted) (citing State v. Magers. 164 Wn.2d 174, 191, 189 P.3d
126 (2008)).
4 State v. Lewis. 156 Wn. App. 230, 240, 233 P.3d 891 (2010) (citing State v.
Warren. 165 Wn.2d 17, 30, 195 P.3d 940 (2008); State v. Russell. 125 Wn.2d 24,
86, 882 P.2d 747 (1994).
5 Thorgerson. 172Wn.2d at 442-43 (Quoting Magers. 164Wn.2d at 191).
No. 69949-1-1/4



Importantly, the remarks were extremely brief and the court instructed the jury to

disregard remarks not supported by the evidence and to base their decision on

the facts and the law, not on sympathy. We presume that juries follow the court's

instructions.6     In these circumstances, there is no substantial likelihood the

remarks affected the verdict.7

       Affirmed.

                 FOR THE COURT:

                                              ^cpc.cr.

                                                   sva-o   J




6 State v. Southerland. 109 Wn.2d 389, 391, 745 P.2d 33 (1987).
7 State v. Warren, 134 Wn. App. 44, 69, 138 P.3d 1081 (2006) (holding that
isolated comments are not likely to affect verdict).
