      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                     )                                                                "
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                                         )       DIVISION ONE                                 rn
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             Respondent,                 )
                                                                                                  —
                                         )       No. 76755-1-1                          CA,   *-pr
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             v.                          )                                                    Inn

                                         )       UNPUBLISHED OPINION
                                                                                                   V/
EMERSON BALVINO BOLANOS,                 )
                                                                                        al    0
                                         )                                                         11.4
             Appellant.                  )
                                         )       FILED: November 13, 2018
                                         )

      DWYER,J. — Emerson Bolanos appeals from his conviction for the felony

crime of failure to register as a sex offender. On appeal, Bolanos contends that

the prosecutor engaged in misconduct by arguing to the jury in a manner that

relieved the State of its burden to prove an element of the crime charged beyond

a reasonable doubt—specifically, knowledge of sex offender registration

requirements. Bolanos further contends that if his counsel failed to properly

preserve the issue for appeal, such failure constituted ineffective assistance of

counsel. Holding that Bolanos failed to properly preserve his claim of error for

appeal, that any prejudice could have been ameliorated by a curative instruction,

and that his attorney's tactics did not constitute ineffective assistance of counsel,

we affirm.
No. 76755-1-1/2


                                                  I
       The State charged Bolanos with one count of felony failure to register as a

sex offender) At trial, Bolanos stipulated that he had a prior felony sex offense

conviction and was required to register as a sex offender. Moreover, Bolanos did

not dispute that he had not registered a change in address when he became

homeless. He further acknowledged that he knew how to register as a sex

offender. But he disputed that he knew how to register as a sex offender when

homeless or that he knew that it was even possible to register a change in

address as a homeless person.

       During closing argument, the prosecutor discussed the burden of proof

regarding the element of knowledge. The prosecutor began her discussion of

knowledge by reading directly from the jury instructions:

               I don't want you to be confused about what knowledge the
       State has to prove beyond a reasonable doubt You just heard the
       instruction of knowledge,jury instruction Number 8. If you want to
       go ahead and read with me.
               A person knows or acts knowingly, or with knowledge, with
       respect to a fact, circumstance or result when he or she is aware of
       that fact, circumstance or result. It is not necessary that the person
       know that the fact, circumstance or result is defined by law as being
       unlawful or an element of a crime.
               Lastly — excuse me, next paragraph.
               If a person has information that would lead a reasonable
       person in the same situation to believe that a fact exists, the jury's
       permitted, but not required, to find that he or she acted with
       knowledge of that fact.

       The prosecutor then reviewed all of the evidence presented to the jury on

the question of Bolanos's knowledge of the registration requirements applicable


       I The State also charged Bolanos with one count of bail jumping but the charges were
severed before trial.
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to sex offenders. Following her summary of the evidence, the prosecutor

concluded that "there is sufficient evidence beyond a reasonable doubt that the

defendant knows he's failing to comply with his registration requirements. He's

aware of that fact, circumstance or result?

       Later in her argument, the prosecutor stated that "ignorance of the law is

not a defense." In rebuttal, the prosecutor again stated that "ignorance of the law

Is not an excuse." Defense counsel did not object to these statements during the

prosecutor's argument. Instead, in her own closing argument, Bolanos's

experienced attorney argued to the jury that the prosecutor's statements did not

match the requirements of the law as set forth in the jury instructions.2

Ultimately, the jury found Bolanos guilty of the crime of failure to register as a sex

offender.

       Five days subsequent to the verdict, Bolanos filed a motion seeking arrest

of the judgment pursuant to CrR 7.4 or, in the alternative, a new trial pursuant to



       2 The to-convict instruction  provided to the jury stated that
                To convict the defendant of the crime of failure to register as a sex
       offender, each of the following elements of the crime must be proved beyond a
       reasonable doubt:
                (1) Prior to May 29, 2013, the defendant was convicted of a felony sex
       offense;
                (2)That due to that conviction, the defendant was required to register in
       the State  of Washington as a sex offender between May 29, 2013 and May 18,
       2014; and
                (3)That during that time period, the defendant knowingly failed to comply
       with a requirement of sex offender registration; namely, the requirement that the
       defendant provide signed written notice of his change of address to the county
       sheriff within three business days of moving from the registered address.
                If you find from the evidence that each of these elements has been
       proved beyond a reasonable doubt, then it will be your duty to return a verdict of
       guilty.
                 On the other hand, if, after weighing all of the evidence, you have a
       reasonable doubt as to any one of these elements, then it will be your duty to
       retum a verdict of not guilty.
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No. 76755-1-1/4


CrR 7.5. Bolanos argued that relief was warranted on the ground that the State

presented insufficient evidence of knowledge or on the bases that the prosecutor

engaged in misconduct during closing argument and defense counsel was

ineffective by failing to object The trial court denied Bolanos's motion.

                                         II

       On appeal, Bolanos avers that the trial court should have granted his

motion for a new trial because the prosecutor engaged in misconduct by stating

during closing argument that "ignorance of the law is not a defense."

Alternatively, he asserts that, if that issue was not properly preserved for appeal,

his defense attorney necessarily provided constitutionally ineffective assistance

by failing to timely object.

       In response, the State asserts that Bolanos waived his prosecutorial

misconduct claim because any prejudice could have been remedied by a curative

Instruction had Bolanos objected and that defense counsel was not ineffective for

failing to object. We hold that Bolanos waived his claim of prosecutorial

misconduct and that his trial attorney provided constitutionally sufficient

representation.

                                         A

       Bolanos first asserts that the prosecutor engaged in misconduct by twice

stating during jury arguments that "ignorance of the law is not a defense." The

State replies that Bolanos waived any claim of error by not objecting in a timely

manner. The State is correct.




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No. 76755-1-1/5


       A defendant claiming prosecutorial misconduct bears the burden of

establishing that the alleged improper conduct was both improper and prejudicial

to the defendant. State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937(2009).

We review a trial court's ruling on a claim of prosecutorial misconduct under an

abuse of discretion standard. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d

125(2014).

       Misconduct is prejudicial only if there "is a substantial likelihood the

misconduct affected the jury's verdict." State v. Brown, 132 Wn.2d 529, 561,940

P.2d 546(1997). However, if the defendant fails to object or request a curative

instruction at trial, the issue of misconduct is waived unless the conduct was so

flagrant and ill-intentioned that an instruction could not have cured the resulting

prejudice. Fisher, 165 Wn.2d at 747. A "motion for a mistrial due to

prosecutorial misconduct directly following the prosecutors rebuttal closing

argument" may preserve the issue for appellate review. Lindsay, 180 Wn.2d at

430-31.

       Improper argument addressing the burden of proof touches upon a

defendant's constitutional rights. But that does not mean that such argument

cannot be cured by a proper instruction to the jury. State v. Emery, 174 Wn.2d

741,763,278 P.3d 653(2012). Indeed, comments from the prosecutor

misstating the burden of proof can be properly neutralized by appropriate

curative instructions. State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940(2008).

"'The criterion always is, has such a feeling of prejudice been engendered or

located in the minds of the jury as to prevent a [defendant]from having a fair


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No. 76755-1-1/6


trial?" Emery 174 Wn.2d at 762(alteration in original)(quoting Slattery v. City of

Seattle, 169 Wash. 144, 148, 13 P.2d 464(1932)). Comments which do not

engender an "inflammatory effect" are curable through appropriate instruction.

See Emery, 174 Wn.2d at 763.

       Here, Bolanos's experienced lawyer did not object to the prosecutor's

statements in jury arguments that "ignorance of the law is not a defense."

Bolanos contends that his postverdict motion to arrest the judgment is the

functional equivalent of a contemporaneous objection and, thus, the claim of

error is preserved for appeal. In support of this contention, he cites to Lindsay.

But Lindsay says no such thing.

       In Lindsay, the Supreme Court evaluated the prejudicial effect of

numerous instances of prosecutorial misconduct that were evidenced in the trial

court record. With regard to the wrongful acts of the prosecutor that took place

during closing and rebuttal arguments, the defendant did not interpose a

contemporaneous objection. Lindsay, 180 Wn.2d at 440-41.

      However, directly after the prosecutor's closing argument,[defense]
      counsel made a motion for mistrial. In that motion she identified a
      number of the prosecutor's statements as improper.    ... stating
      specifically that"he made his personal opinions about the evidence
      [known]on numerous occasions,"...,and that "he is disparaging
      counsel,just, you know, egregiously,".... The Ninth Circuit has
      recognized that a defense counsel entering "objections to the
      language and tenor of the prosecutor's closing remarks by way of a
       mistrial motion after the government finished its summation" is "an
      acceptable mechanism by which to preserve challenges to
      prosecutorial conduct in a closing argument in lieu of repeated
      Interruptions to the closing arguments," and therefore that the
      ordinary standard for examining prejudice applies. fUnited States
      v.1 Prantil, 764 F.2d [548,]555 n. 4[(9th Cir. 1985)](citing United
      States v. Lyman, 592 F.2d 496,499(9th Cir. 1978)). The rule in
      Prantil advances the policy reasons for the contemporaneous

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No. 76755-1-1/7


      objection rule, such as giving the trial court a chance to correct the
      problem with a curative instruction, and we therefore adopt it.

Lindsay, 180 Wn.2d at 441.

      The postverdict motion that Bolanos filed—to arrest judgment—does not

meet this standard. In Lindsay, the motion was brought when the jury was still

impaneled and a curative instruction could be given. Not so here. The jury had

been discharged well before Bolanos filed his motion. No curative instruction

could be given. The Prantil standard was not met. The claim of error was not

preserved.

       Because Bolanos failed to object in a timely manner, we must next

determine whether a curative instruction could have neutralized the claimed

misconduct. In our view, the statement that "ignorance of the law is not a

defense" is not an inflammatory comment capable of engendering incurable

prejudice in the minds of jurors. Rather, it is a potentially misleading

characterization of the legal standard that the jury was required to apply. If

Bolanos had objected to the comments as potentially confusing to the jury, the

court could have properly explained the jury's role and reiterated that the State

bore the burden of proof on the issue of knowledge. Because we find that a

curative instruction could have resolved any concerns about the prosecutors

comments, it follows that appellate relief is not warranted.



       Bolanos next contends that his attorney's decision not to object to the

aforementioned statements constitutes constitutionally ineffective assistance of

counsel. We disagree.

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No. 76755-1-1/8


       "'In order to succeed in [an ineffective assistance of counsel] claim, the

defendant must show both that the attorney's performance was deficient and that

the defendant was prejudiced by that deficient performance.'" In re Det. of

Hatfield, 191 Wn. App. 378,401, 362 P.3d 997(2015)(alteration in original)

(quoting State v. Borsheim 140 Wn. App. 357, 376, 165 P.3d 417(2007)).

"Deficient performance is that which falls below an objective standard of

reasonableness." State v. Weaville, 162 Wn. App. 801, 823, 256 P.3d 426

(2011). "Prejudice occurs where there is a reasonable probability that, but for the

deficient performance, the outcome of the proceedings would have been

different." Weaville, 162 Wn. App. at 823(citing State v. McFarland 127 Wn.2d

322, 335,899 P.2d 1251 (1995)).

      "The reasonableness of counsel's performance is to be evaluated in light

of all the circumstances." Weaville 162 Wn.App. at 823(citing In re Pers.

Restraint of Davis, 152 Wn.2d 647,673, 101 P.3d 1 (2004)). "[S]crutiny of

counsel's performance is highly deferential and courts will indulge In a strong

presumption of reasonableness? State v. Thomas, 109 Wn.2d 222, 226, 743

P.2d 816(1987). We presume adequate representation if there is any

"'conceivable legitimate tactic'" that explains counsel's performance. Hatfield,

191 Wn.App. at 402(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101

P.3d 80(2004)).

       "In making the determination whether the specified errors resulted in the

required prejudice, a court should presume, absent challenge to the judgment on

grounds of evidentiary insufficiency, that the judge or jury acted according to


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law." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052,80 L. Ed. 2d

674(1984). "A defendant has no entitlement to the luck of a lawless

decisionmaker." Strickland, 466 U.S. at 695.

       Here, Bolanos's attorney made a decision not to object to the prosecutor's

comments but to instead refer to the comments in her own closing argument.

Bolanos's attorney chose to address the comments by pointing out the

differences between the prosecutor's comments and the instructions provided to

the jury. It is conceivable that such a tactic—taking the opportunity to describe

an adversary's argument as legally incorrect during closing argument rather than

objecting to it—is one upon which a reasonable attorney might legitimately rely.

Thus, Bolanos fails to overcome the presumption of adequate representation.

See Hatfield 191 Wn.App. at 402.

       Furthermore, Bolanos asserts that the jury may have applied an improper

legal standard because of ineffective assistance of his counsel. However, he

does not challenge the propriety of the instructions provided to the jury. Instead,

his contention of ineffective assistance is premised on a claim that the

prosecutor's statements misled the jury as to the State's burden of proof.

Because we presume that the jury properly applied the law as provided to it in

the jury Instructions, Strickland, 466 U.S. at 694, such a claim cannot serve as

the ground for a successful contention of ineffective assistance of counsel. No

prejudice has been shown. Bolanos's contention of ineffective assistance of

counsel fails.




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No. 76755-1-1/10


      Affirmed.



We concur:




igi,(IP




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