                                                                                                FILED
                                                                                               7 OF APPEALS
                                                                                           DIVISION
                                                                                   201/ 1 JUN 17
                                                                                                      AM 8: 33
                                                                                   S    TE '     lA



       IN THE COURT OF APPEALS OF THE STATE OF WASHINUTO

                                          DIVISION II


STATE OF WASHINGTON,                                                 No. 44086 -5 -II


                                Respondent,


         v.



ARVELL LAMONT KINDELL,                                       PART PUBLISHED OPINION


                                Appellant.




         MAxA, J. —   Arvell Kindell appeals his convictions and sentence for first degree burglary

and second degree unlawful possession of a firearm. One of the elements of first degree burglary

is that the defendant entered or remained unlawfully in a building with the intent to commit a

crime against a person or   property therein. RCW 9A. 52. 020( 1).   As a matter of law, illegally

possessing a firearm does not constitute a crime against property. Accordingly, we hold that ( 1)

the trial court erred in instructing the jury in response to a jury question that whether illegally

possessing a firearm constitutes a crime against property is a factual determination for the jury to

decide, and (2) the error was not harmless because it allowed the jury to convict Kindell of

burglary based on an insufficient predicate crime. We address the remainder of Kindell' s

arguments in the unpublished portion of this opinion.


          We reverse and remand for a new trial on the first degree burglary conviction. We affirm

the second degree unlawful possession of a firearm conviction but remand for resentencing on

that   conviction.
No. 44086 -5 -II



                                                      FACTS


        On June 20, 2012, Kindell was at his former girl friend' s house in violation of a no

contact order when a   law    enforcement officer arrived.            Kindell fled on foot and on a bicycle.


Looking for a place to hide, Kindell headed to Patricia Crowley' s house. Kindell considered

Crowley a friend, but Crowley considered Kindell to be merely an acquaintance.

        Kindell knocked on Crowley' s front door. Crowley' s ten -
                                                                 year -old granddaughter, ZM,

responded to the knock. When ZM opened the door halfway, Kindell came into the house. Once

inside, Kindell did not threaten Crowley or ZM or make any demands, other than asking them to

hide him. Crowley and ZM went out the back door, where they met officers who were

approaching the house. Kindell saw the officers in the back yard and retreated into the house.

Crowley    informed the   officers   that there   were   two firearms in her bedroom —a pistol hidden in a



basket and a shotgun in a gun sock leaning against the wall. The firearms were unloaded and the

ammunition was stored in her head board.


          The officers requested that Kindell come out of the house and surrender, but initially he

refused. After several hours, Kindell exited the house and was arrested. Officers found

Crowley'   s unloaded shotgun     lying   on   the   couch   in the   living   room..   And shotgun ammunition


was found in a box in the hallway and on the bed.

        Kindell was charged with first degree burglary with a firearm enhancement and second

degree unlawful possession of a firearm. At trial, the trial court instructed the jury on the

elements of   first degree   burglary.    Neither party took      exception      to the " to   convict"   instruction,
No. 44086 -5 -II



which stated that the State was required to prove that Kindell entered or remained unlawfully in

Crowley' s house and that the entering or remaining was with intent to commit a crime against a
                                  1
person or   property therein.


                                                                 following                 Jury   Inst[ ruction]       15 [ to
          During deliberations,       the   jury   asked   the               question: "                           #




convict / burglary    instruction] ...      Does illegally possessing a firearm constitute a crime against

property ?"   Clerk' s Papers ( CP) at 92. Kindell argued that whether illegally possessing a firearm

constitutes a crime against property was a legal question, but the trial court disagreed and stated

that it was a factual question. After conferring with counsel, the trial court provided the

following   answer     to the   jury: " That is a factual determination you need to collectively decide[.]"

CP at 92.


          The jury found Kindell guilty of first degree burglary and second degree unlawful

possession of a firearm, and answered " yes" on the special verdict form alleging that Kindell was

armed with a    firearm    during the       commission of        the   burglary. .   Kindell moved to arrest the


judgment or in the alternative to grant a new trial, arguing that whether the unlawful possession

of a firearm was a crime against a person or property was a question of law and not an issue for

the jury to determine. The trial court denied Kindell' s post -trial motions. Kindell appeals.
                                                       ANALYSIS


          One of the elements of first degree burglary is that the defendant entered or remained

unlawfully in a building " with intent to commit a crime against a person or property therein."


 1 Because Kindell was charged with first degree burglary, the instruction also included an
additional element —       that Kindell was armed with a deadly weapon or assaulted another person
during the commission or immediate flight from the burglary. Compare RCW 9A.52. 020 ( first
 degree   burglary)   with   RCW 9A.52. 025, . 030          ( residential burglary; second degree burglary).
That element is not at issue here.


                                                                  3
No. 44086 -5 -II



RCW 9A. 52. 020( 1).   In response to a jury question, the trial court instructed the jury that

whether unlawfully possessing a firearm constitutes a crime against property is a factual

determination for the jury to decide. By giving this response, the trial court implicitly

determined that under certain facts unlawful possession of a firearm can constitute a crime


against property, and therefore can qualify as a predicate crime for first degree burglary.

        We hold that the trial court erred in responding to the jury question because whether

unlawful possession of a firearm constitutes a crime against property is a question of law, and

that as a matter of law, unlawful possession of a firearm is not a crime against property. We

further hold that this error was not harmless because it allowed the jury to convict Kindell of first

degree burglary based on a predicate crime that as a matter of law cannot satisfy the crime

against property requirement in RCW 9A. 52. 020( 1).

A.      PRESERVATION OF CHALLENGE


        Initially, the State argues that Kindell failed to properly preserve his challenge to the trial

court' s response to the jury question by not objecting to it below. We agree, but we exercise our

discretion to consider this argument on appeal.


        RAP 2. 5( a) states that an appellate court " may" refuse to review a claim of error not

raised in the trial court. This rule allows, but does not require, us to refuse to review certain


claims that an appellant failed to raise below. State v. Osborne, 140 Wn. App. 38, 41, 163 P. 3d

799 ( 2007). We retain discretion under RAP 2. 5( a) to consider an issue raised for the first time


on appeal. Osborne, 140 Wn. App. at 41.




                                                   4
No. 44086 -5 -II



           Here, during discussion of possible answers to the jury question about the first degree

burglary " to convict" instruction, Kindell stated that whether unlawful possession of a firearm is

a crime against property was a legal question. The trial court expressed disagreement, stating

that the issue was a factual determination. Kindell then agreed that the court should tell the jury

they would need to decide the issue for themselves and did not object to the trial court' s response

to the jury question. In post -trial motions Kindell renewed his argument that whether unlawful

possession of a firearm was a crime against property was a question of law and not an issue for

the jury to determine.

           Kindell did not properly object to the trial court' s response to the jury question.

However, he did raise the argument in the trial court that whether unlawful possession of a


firearm is a crime against property was a legal question. It was only after the trial court rejected

this argument that Kindell acquiesced to the trial court' s response to the jury question. And

Kindell argued again in post -
                             trial motions that whether the unlawful possession of a firearm was


a crime against a person or property was a question of law. Under these circumstances, we

exercise our discretion under RAP 2. 5( a) to consider Kindell' s argument on appeal.


B.         STANDARD OF REVIEW


           The decision to answer jury questions and give further instructions is within the trial

court' s   discretion. State   v.   Becklin, 163 Wn.2d 519, 529, 182 P. 3d 944 ( 2008). However, such


instructions must accurately state the law. State v. Teal, 152 Wn.2d 333, 339, 96 P. 3d 974

 2004).     We review the legal accuracy ofjury instructions de novo. Becklin, 163 Wn.2d at 525.

Instructing the jury in a manner that relieves the State of its burden to prove every element of a




                                                        5
No. 44086 -5 -II



crime beyond a reasonable doubt is reversible error. State v. Bennett, 161 Wn.2d 303, 307, 165

P. 3d 1241 ( 2007).


         Here, whether the trial court' s answer to the jury question represented an accurate

statement of the law involves an interpretation of RCW 9A.52.020( 1) and RCW 9. 41. 040, which

is the statute defining the crime of unlawful possession of a firearm. Construction of a statute is
a question of law which we review de novo. State v. Hirschfelder, 170 Wn.2d 536, 541 -42, 242

P. 3d 876 ( 2010).      Our objective in interpreting a statute is to discern and implement the

legislature'   s   intent. Hirschfelder, 170 Wn.2d          at   543. " [   I]f the statute' s meaning is plain on its

face, then the court must give effect to that plain meaning as an expression of legislative intent.'

     Hirschfelder, 170 Wn.2d      at   543 (   alteration   in   original) (   quoting Dep' t ofEcology v. Campbell

     Gwinn, LLC, 146 Wn.2d 1, 9 -10, 43 P. 3d 4 ( 2002)). " `                  Plain meaning is discerned from the

ordinary meaning of the language at issue, the context of the statute in which that provision is
found,   related provisions, and       the statutory   scheme as a whole.' "           Hirschfelder, 170 Wn.2d at


543 ( quoting Christensen v. Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 ( 2007)).

C.        MEANING OF " CRIME AGAINST PROPERTY"


          The trial court' s response to the jury question was erroneous in two respects. First,

whether a particular crime constitutes a crime against property is a question of law, not a

question of fact for the jury to decide. Second, as a matter of law, unlawful possession of a

firearm cannot constitute a crime against property under RCW 9A.52.020( 1).

          1.       Question of Law


          Whether a particular crime constitutes a crime against property involves the interpretation

 of the burglary statute and the statute defining the proposed predicate crime. As noted above,



                                                                 6
No. 44086 -5 -II



construction of a statute is a question of law. Hirschfelder, 170 Wn.2d at 541 -42. As a result,

we hold that the trial court must determine this issue as a matter of law and cannot defer this

decision to the jury.

        In State         v.   Snedden, 149 Wn.2d 914, 919 -23, 73 P. 3d 995 ( 2003), our Supreme Court


determined as a matter of law that a particular crime constituted a crime against a person without


specifically holding that the determination was a question of law. In Snedden, the trial court

engaged    in   a   legal     analysis —focusing     on   the language   of   the indecent   exposure statute —to




conclude that the indecent exposure statute satisfies the crime against a person requirement in

RCW 9A. 52. 020( 1).             149, Wn.2d   at   919.   Similarly, in State v. Stinton, 121 Wn. App. 569, 574-

77, 89 P. 3d 717 ( 2004),           we did not expressly hold that determining whether a protection order

violation was a crime against a person was a question of law. But we did frame the issue as

whether " as a matter of law" the violation of a protection order could serve as the predicate


crime for a burglary. Stinton, 121 Wn. App. at 574. In both cases the courts decided whether the

crime could         be   a predicate crime as a question of       law —i.e.,    focusing on the elements of the

crime rather than the factual circumstances of the case. Snedden, 149 Wn.2d at 919; Stinton, 121

Wn. App. at 574.

        Here, the trial court implicitly ruled that whether unlawful possession of a firearm

constituted a crime against property was a question of fact for the jury. We hold that the trial

court erred in making this ruling, and in allowing the jury to make this determination rather than

deciding   the issue itself         as a matter of   law.
No. 44086 -5 - II



         2.     Nature of Unlawful Possession of a Firearm


         The legislature did not define what constitutes a " crime against a person or property"

under   RCW 9A.52. 020( 1)      and other   burglary   statutes.   Courts have applied a common sense


analysis focusing on the statutory elements of the particular crime supporting the burglary charge

to determine whether that crime is a predicate crime under the burglary statutes. Snedden, 149

Wn.2d at 919 ( the plain language of the indecent exposure statute satisfies the " crime against a


person" requirement);    Stinton, 121 Wn. App. at 574 ( the statutory definition of a protection order

violation shows that it is a " crime against a person ").


         Here, the jury question and the trial court' s response focused on the crime against

property      component of   RCW 9A. 52. 020( 1) —     whether unlawful possession of a firearm


constituted a crime against      property. 2   RCW 9. 41. 040 provides that unlawful possession of a

firearm involves certain persons owning, having in their possession, or having in their control

any firearm. In other words, a person commits the crime merely by owning, possessing or

controlling a firearm. The plain language of RCW 9. 41. 040 makes it clear that unlawful

possession of a firearm does not satisfy the crime against property requirement of first degree

burglary. We cannot conceive of a situation where merely owning, possessing or controlling a

firearm can cause harm to property. Accordingly, the trial .court erred in allowing the jury to

consider unlawful possession of a firearm as a predicate crime for first degree burglary.




2 The State does not argue that unlawful possession of a firearm constitutes a crime against a
person, and we do not address this issue.


                                                          8
No. 44086 -5 -II



         We hold that the trial court erred in instructing the jury that whether unlawful possession

of a   firearm   constituted a crime against              property   was a   factual issue for the     jury   to decide. 3   As a

matter of law, unlawful possession of a firearm is not a crime against property and cannot be the

predicate crime for first degree burglary.

D.       HARMLESS ERROR


         Both constitutional and non -
                                     constitutional errors may be subject to harmless error

analysis. For a constitutional error, the State bears the burden of proving that the error is

harmless beyond a reasonable doubt. State v. Lynch, 178 Wn.2d 487, 494, 309 P. 3d 482 ( 2013).


A non -constitutional error requires reversal only if there is a reasonable probability that the error

materially affected the outcome of the trial. State v. Gower, 179 Wn.2d 851, 854 -55, 321 P. 3d

1178 ( 2014). An error is constitutional if it implicates a constitutional interest as compared to


another   form    of   trial   error.    See State   v.   O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009). Not


every instructional       error    is   constitutional.      O' Hara, 167 Wn.2d at 101 - 04 ( whether error in a self -


defense   jury   instruction is         constitutional requires a case         by    case analysis).   But a jury instruction

that misstates the law such that it relieves the State of its burden to prove every element of the

crime charged affects a constitutional right and therefore is subject to the rigorous constitutional


harmless error standard. State v. Thomas, 150 Wn.2d 821, 844 -45, 83 P. 3d 970 ( 2004).


          Here, the trial court' s " to convict" instruction accurately informed the jury of the

elements of burglary and the State' s burden to prove each one beyond a reasonable doubt.


3 Kindell also argues that unlawful possession of firearm is not a crime against a person or
property because it is not so designated in RCW 9. 94A.411, which incorporates a table
categorizing crimes for prosecuting standards, including " Crimes Against Persons" and " Crimes
Against    Property /Other        Crimes." ( Capitalization              omitted).    But our Supreme Court rejected that
argument in Snedden, 149 Wn.2d at 922.


                                                                     9
No. 44086 -5 -II



However, in response to a jury question, the trial court erroneously instructed the jury that

whether unlawful possession of a firearm was a crime against property was a factual issue for its

determination. We hold that the erroneous jury instruction did not relieve the State of its burden

to prove the elements of burglary which were properly provided in the court' s earlier

instructions. Therefore, we apply the non -constitutional harmless error standard. Under that

standard, an error requires reversal only if there is a reasonable probability that the error

materially affected the outcome of the trial. Gower, 179 Wn.2d at 854 -55.

        Under the circumstances of this case, we hold that the trial court' s, error was not harmless

even under the less stringent non -
                                  constitutional standard. The trial court' s instruction was

equivalent to telling the jury that unlawful possession of a firearm was a permissible predicate

crime for burglary when it was not. The effect of the instruction was to tell the jury that the

crime against property requirement was satisfied by unlawful possession of a firearm, which may

have caused the jury to unknowingly disregard the requirement that the predicate crime be a

crime against a person or property. The uncontradicted trial testimony was that Kindell entered

 and remained) in Crowley' s house with the sole purpose of hiding from law enforcement

officers.   4 Without considering the unlawful possession of a firearm as the predicate crime, there

is a reasonable probability that the jury would not have convicted Kindell of burglary.

Accordingly, we hold that the erroneous jury instruction requires reversal.




4 RCW 9A.52. 040 allows a jury to infer that a defendant who remains unlawfully in a building
may be inferred to have acted with intent commit to a crime against a person or property therein.
The corresponding jury instruction is 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY
INSTRUCTIONS: CRIMINAL 60. 05,       at   15 ( 3d   ed.   2008). However, the trial court did not give this

instruction to the jury.


                                                           10
No. 44086 -5 - II



          We reverse Kindell' s first degree burglary conviction and remand for a new trial on that

charge.




          A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.

          With    regard      to Kindell'   s additional arguments, we   hold: ( 1) the trial court did not violate


Kindell'   s right   to   a   speedy trial; ( 2)   the prosecutor did not engage in misconduct by misstating

the   law; ( 3)   the prosecutor did engage in misconduct by giving a personal opinion and

disparaging defendant and defense counsel, but reversal is not required on the unlawful

possession of a firearm conviction because Kindell failed to show that the misconduct was so


flagrant and ill intentioned that an instruction could not have cured any prejudice; and ( 4) the

reversal of the burglary conviction and the possibility that the trial court erred in counting a

misdemeanor in Kindell' s offender score require us to remand for resentencing on the second

degree unlawful possession of a firearm conviction.


A.         TIME FOR TRIAL


           Kindell argues that his convictions should be dismissed with prejudice because the time

for trial rule in CrR 3. 3 was violated when the trial court granted the State' s motion for a


continuance, placing the new trial date outside the time for trial expiration date. Because the

State presented good cause for the continuance, the trial court did not err in granting it.

           A criminal charge not brought to trial within the time limits of CrR 3. 3 must be dismissed

with prejudice.       State      v.   Kenyon, 167 Wn.2d 130, 136, 216 P. 3d 1024 ( 2009). CrR 3. 3( b) -( c)


provides that a defendant who is detained in jail must be brought to trial within 60 days of




                                                              11
No. 44086 -5 -II



arraignment. The purpose of this rule is to protect the defendant' s constitutional right to a


speedy trial and to prevent undue and oppressive incarceration before trial. State v. Kingen, 39

Wn.   App.     124, 127, 692 P. 2d 215 ( 1984).               But the constitutional right to a speedy trial does not

mandate a trial within 60 days. State v. Torres, 111 Wn. App. 323, 330, 44 P. 3d 903 ( 2002).

          Certain time periods are excluded from the computation of time, including continuances

granted   by the   trial   court.    CrR 3. 3(   e).    CrR 3. 3( f)( states:
                                                                    2)


          On motion of the court or a party, the court may continue the trial date to a
          specified date when such continuance is required in the administration of justice
          and the defendant will not be prejudiced in the presentation of his or her defense.
          The   motion must         be   made    before the time for trial has      expired.   The court must

          state on the record or in writing the reasons for the continuance.

A trial court may grant the State' s motion for a continuance when " required in the administration

ofjustice" so long as the continuance does not substantially prejudice the defendant in his

defense. State     v.   Saunders, 153 Wn.              App.   209, 217, 220 P. 3d 1238 ( 2009) (   quoting CrR

3. 3( f)(
        2)).    The decision to grant a continuance under CrR 3. 3 rests in the sound discretion of the


trial court and will not be disturbed unless the trial court grants the continuance for untenable


reasons. State v. 011ivier, 178 Wn.2d 813, 822 -23, 312 P. 3d 1 ( 2013).


          Here, Kindell was arraigned on July 3, 2012, and remained in custody. Trial was set for

August 20. On August 16, the trial court granted the State' s motion for a continuance because


the crime lab was still processing evidence from the shotgun. The trial court set trial for August
                             555

27, 2012,      which was            days from Kindell' s arraignment. On August 22, the State sought


another continuance because the prosecutor assigned to the case had a previously scheduled


5 The scheduling order states that 59 days would elapse between arraignment on July 3, 2012,
and the new trial date on August 27, 2012. But our calculation shows that period to be only 55
days. This scrivener' s error is irrelevant in this case.



                                                                   12
No. 44086 -5 -II



vacation on the new trial date, the prosecutor had a relationship with the victim that would make

it difficult to transfer the case to another prosecutor, the crime lab was not expected to finish its

work on the case by the new trial date, and one of the State' s primary witnesses was not

available on the new trial date. Over Kindell' s objection, the trial court granted the State' s

motion for a one week continuance. The trial court set trial for September 4, which was 63 days

after arraignment, but the court ruled that the period from August 27 to September 4 was an


excluded period for purposes of speedy trial.

        Kindell argues that the record does not support the trial court' s decision to grant the


State' s continuance past Kindell' s speedy trial expiration date. We disagree. The trial court

stated on the record that there was good cause for the continuance based on ( 1) the unavailability

of the assigned prosecutor, who had a relationship with the victim making it difficult to transfer

the case to another prosecutor, and ( 2) the unavailability of the State' s police witness.

Scheduling conflicts such as a preplanned vacation and the unavailability of witnesses constitute

valid grounds   to   continue a   trial date   under   CrR 3. 3( f)(
                                                                   2).     See, e. g., State v. Flinn, 154 Wn.2d

193, 200, 110 P. 3d 748 ( 2005) ( scheduling           conflict   is   a valid consideration);   State v. Heredia-


Juarez, 119 Wn.      App.   150, 154 -55, 79 P. 3d 987 ( 2003) ( valid continuance granted to


accommodate prosecutor' s         reasonably    scheduled vacation);         State v. Grilley, 67 Wn. App. 795,

799, 840 P. 2d 903 ( 1992) ( valid continuance granted to accommodate officers' previously


scheduled vacations).       Moreover, Kindell did not articulate any prejudice resulting from the brief

continuance and there is no evidence that the three day delay prejudiced the presentation of his

defense.




                                                            13
No. 44086 -5 -II



        Kindell also argues that the trial court failed to make express findings that the

continuance was required in the administration of justice and that Kindell would not be

prejudiced. But CrR 3. 3( f)() does not require those express findings. It requires only that the
                            2

court provide reasons for the continuance, which the trial court did here. CrR 3. 3( f)(
                                                                                       2).


        There was nothing untenable about the trial court' s decision to grant the continuance and

Kindell showed no prejudice to the presentation of his case. Accordingly, we hold that Kindell' s

time for trial claim fails.


B.      PROSECUTORIAL MISCONDUCT


        Kindell argues that the prosecutor engaged in misconduct by ( 1) misstating the law

regarding first degree burglary and urging jurors to convict on an improper basis, and ( 2)

improperly expressing her personal opinion regarding the integrity of the police force and

disparaging defense counsel for hinting at police misconduct. Even though we are remanding for

a new trial on the first degree burglary charge, we must address Kindell' s prosecutorial

misconduct arguments because the first is relevant to the retrial of the first degree burglary

conviction and the second is relevant to the second degree unlawful possession of a firearm

conviction. We reject Kindell' s arguments.


        To prevail on a claim of prosecutorial misconduct, a defendant must show that " in the

context of the record and all the circumstances of the 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).   In assessing whether a prosecutor' s closing argument was improper, we recognize

that the prosecutor has " wide latitude to argue reasonable inferences from the evidence,


including   evidence   respecting the credibility   of witnesses."   State v. Thorgerson, 172 Wn.2d 438,




                                                      14
No. 44086 -5 -II



448, 258 P. 3d 43 ( 2011).       The prosecutor is permitted to comment on the veracity of a witness as

long as he or she does not express a personal opinion or argue facts not in the record. State v.

Smith, 104 Wn.2d 497, 510 -11, 707 P. 2d 1306 ( 1985).                       Prejudice is not determined in isolation


but " in the context of the total argument, the issues in the case, the evidence, and the instructions

given   to the   jury." State v. Warren, 165 Wn.2d 17, 28, 195 P. 3d 940 ( 2008).

         Where, as here, the defendant failed to object to the challenged portions of the


prosecutor' s argument, he will be 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."   State   v.   Emery,   174 Wn.2d 741, 760 -61, 278 P. 3d 653 ( 2012).             In making

this determination, we " focus less on whether the prosecutor' s misconduct was flagrant or ill

intentioned      and more on whether         the resulting        prejudice could     have been   cured."   Emery, 174

Wn.2d    at    762. The defendant must show that ( 1) no curative instruction would have eliminated


the prejudicial effect, and ( 2) the misconduct resulted in prejudice that had a substantial

likelihood of affecting the verdict. Emery, 174 Wn.2d at 761.

          1.      Misstatements of Law


         In closing argument, the prosecutor stated:

         Now, I don' t have to             prove       to   you   what    crime    he intended to   commit.    It is
         difficult to get inside somebody' s head and prove beyond a reasonable doubt what
         their intent was to do, what he wanted, what was in his mind at that moment when
         he walked up those stairs and into [ Crowley' s] house.
                     That'   s what you      have to decide.             I would submit to you that all of the
          evidence proves that he was willing to commit any crime necessary to complete
         his  action. He wanted a place to hide, and if he needed to assault somebody like

         he did [ ZM], he        would       do that.        If he needed to steal a gun in order to shoot
         himself      or shoot   the      cops,   he   would      have.    If he   could   have — he intended and

          meant to do absolutely anything that it would have taken for him to hide from the
          police, because that was the only thing on his mind at that point.



                                                                   15
No. 44086 -5 -II



RP at 262. Kindell did not object to the prosecutor' s remarks.


         Kindell argues that the prosecutor' s statement misled the jurors by urging them to convict

him of burglary if he entered with the intent to commit any crime" or absolutely anything, rather

than   crimes against persons or       property.     We disagree.


         The prosecutor did not mislead the jury or seek to diminish the State' s burden. The

prosecutor discussed the elements of the burglary charge presented in the court' s " to convict"

jury instruction. After correctly stating that the second element was " that the entering or

remaining      was with   the   intent to   commit a crime against a person or    property therein," the


prosecutor briefly explained that the State did not have to prove the particular crime Kindell

intended. RP at 262. In the context of the prosecutor' s entire argument, this discussion of the

intent element was not an improper statement of the law or contrary to the trial court' s

instructions.


         2.     Personal Opinion/ Disparaging Defense Counsel

         During closing argument, Kindell argued that officers falsified reports and moved

evidence. This argument was based on Kindell' s testimony that he did not touch or move the

shotgun and that he did not make the threats that one of the officers testified to and included in a


supplemental report. In rebuttal, the prosecutor stated that the defense' s theory about police

moving    evidence and     planting false      statements was "   ludicrous," accused defense counsel and


Kindell   of   watching too     much   television, and stated, "[   t]hat' s not how this police force plays


ball." RP at 287. Kindell did not object to the prosecutor' s rebuttal statements.


          A prosecutor commits misconduct if it is clear and unmistakable that he or she is


expressing a personal opinion rather than arguing an inference from the evidence. State v. Brett,



                                                          16
No. 44086 -5 -11



126 Wn.2d 136, 175, 892 P. 2d 29 ( 1995).     We agree that it was improper for the prosecutor to


have vouched for the integrity of the police. Her broad statement was not an inference from the

record because there was no evidence presented about the quality of the police force' s

investigations in general. The prosecutor should have limited her rebuttal of Kindell' s police


misconduct theory to arguing that there was no evidence of police misconduct in this case. It

also was improper for the prosecutor to levy her criticism directly at Kindell and defense counsel

rather than at their police misconduct theory. See Thorgerson, 172 Wn.2d at 451 -52.

        However, because Kindell did not object to the statements at trial, he must show that the

misconduct was so flagrant and ill intentioned that no curative instruction could have eliminated


any resulting   prejudice.   Emery,   174 Wn.2d   at   760 -61.   Kindell could have proposed an


instruction directing the jury to disregard the prosecutor' s personal opinions and criticism of

Kindell and defense counsel, and there is no reason to believe that such an instruction would not


have eliminated any prejudice. Accordingly, we hold that although the prosecutor' s comments

were improper, Kindell' s failure to object below waived his misconduct claim.

C.      SENTENCING


        Kindell argues that the trial court erred in sentencing him by including three

misdemeanors in his offender score and failing to prove the comparability of his out -of - tate
                                                                                         s

convictions. Although we remand for a new trial on the first degree burglary charge, we must

address this issue with regard to the second degree unlawful possession of a firearm charge.


        Under the Sentencing Reform Act of 1981, chapter 9. 94A RCW, the sentencing court

uses the defendant' s prior convictions to determine an offender score which, along with the

seriousness level of the current offense, establishes his or her presumptive standard sentencing




                                                        17
No. 44086 -5 -II



range.       State   v.   Ford, 137 Wn. 2d 472, 479, 973 P. 2d 452 ( 1999).               We review a sentencing court' s

calculation of an offender score de novo. State v. Bergstrom, 162 Wn.2d 87, 92, 169 P. 3d 816

 2007).

                                                                          convictions6




             The State      must prove       the   existence of prior                    used to calculate an offender



score by a preponderance of the evidence. Ford, 137 Wn.2d at 479 -80; see also RCW

9. 94A. 500( 1).          Generally this is accomplished through a certified copy of the judgment and

sentence, unless the defendant affirmatively acknowledges the criminal history on the record.

State   v.   Mendoza, 165 Wn.2d 913, 930, 205 P. 3d 113 ( 2009). If the convictions are from another


jurisdiction, the State also must prove that the conviction would be a felony under Washington

law. Ford, 137 Wn.2d at 480. Only if the out - - tate convictions are comparable to a
                                             of s

Washington conviction                 can   those   convictions    be included in the    offender score.   See Thiefault,


160 Wn. 2d 409, 415, 158 P. 3d 580 ( 2007);                      RCW 9. 94A.525( 3).


                T] he court may rely on the defendant' s stipulation or acknowledgement of prior

convictions          to   calculate   the offender     score."    State v. James, 138 Wn. App. 628, 643, 158 P. 3d

102 ( 2007).         A defendant may waive any challenges to incorrect facts, such as by stipulating to

the existence of a prior conviction and the comparability of an out -of - tate offense. State v.
                                                                        s

Cadwallader, 155 Wn. 2d 867, 875, 123 P. 3d 456 ( 2005). But a defendant cannot waive a


challenge       to   a    legal   conclusion —      such as a sentence in excess of that which is statutorily

authorized based on a miscalculated offender score. See Cadwallader, 155 Wn.2d at 874 -75

    defendant could not agree to a life sentence as a persistent offender where judgment and


sentence showed that one of the predicate strike offenses washed out); In re Pers. Restraint of

6
    Generally, only felonies are included in the offender score. State v. Larkins, 147 Wn. App.
858, 862 -63 & n.7, 199 P. 3d 441 ( 2008).



                                                                     18
No. 44086 -5 -II


Goodwin, 146 Wn.2d 861, 873 -76, 50 P. 3d 618 ( 2002) ( express       agreement that criminal history

was correct did not waive challenge that one of the prior convictions used to calculate offender


score had washed out).

        Here, the prosecutor, Kindell, and Kindell' s counsel signed a " Declaration of Criminal


History" at sentencing that listed Kindell' s undisputed prior criminal convictions and assigned

points to certain prior convictions for purposes of calculating Kindell' s offender score. This

document was incorporated into the judgment and sentence. Kindell' s declaration functions as a

stipulation to the existence of the prior convictions listed on the document. And to the extent

that the declaration allocated offender points to certain out -of - tate convictions, he stipulated that
                                                                  s

those convictions were comparable to Washington felonies. Kindell' s stipulations satisfied the


State' s burden to prove the existence and comparability of his out - - tate convictions.
                                                                    of s

Therefore, Kindell' s claim that the State failed to prove the comparability of his out of state

convictions fails.


        Kindell also argues that the trial court erred by including three misdemeanors: attempted

escape (   Colorado),   possession of marijuana ( Colorado),   and third degree malicious mischief


 Washington) in Kindell' s offender score. We do not consider this argument with regard to the


two out -of - tate convictions because Kindell stipulated as a factual matter that they were
            s

comparable to Washington felonies. Moreover, he provides no authority in support of his

allegation that they are not felonies and are not comparable to felonies under Washington law.

        Kindell also stipulated that the Washington third degree malicious mischief conviction

counted as a point in his offender score. However, his stipulation does not waive his present

challenge as to whether the conviction should have been included in his offender score because



                                                    19
No. 44086 -5 -II



that is a legal conclusion under the circumstances presented here. See Cadwallader, 155 Wn.2d

at   874 -75; Goodwin, 146 Wn.2d      at   873 -76. Third degree   malicious mischief   is   not a   felony —it

is a gross misdemeanor. RCW 9A.48. 090. Therefore, it should not have been included as a

point in calculating Kindell' s offender score. See State v. Larkins, 147 Wn. App. 858, 862 -63 &

n.7, 199 P. 3d 441 ( 2008).


         The State appears to concede that Kindell' s Washington conviction for third degree

malicious mischief should not have been included in his offender score. However, the State

argues that despite the one point marked next to third degree malicious mischief on the

declaration of criminal history (which is attached and incorporated by reference to the judgment

and sentence),     it is apparent that the trial court did not use that point in calculating Kindell' s

offender score as five. The State argues that because Kindell had two current felony offenses,

they each counted one point against the other for scoring, and that along with the four points for
Colorado offenses, Kindell had an offender score of five for each offense. The trial court used


that score to sentence him. Although the State' s analysis seems reasonable, there is nothing on

the judgment and sentence stating that the current offenses counted as one point in the offender

score and the declaration attached appears to count a point from the misdemeanor conviction,

which is improper.


         Because of the reversal of the burglary conviction and the possibility that the trial court

erred in counting a misdemeanor in Kindell' s offender score, we remand for resentencing on the

second degree unlawful possession of a firearm conviction. On remand, Kindell' s Washington

conviction for third degree malicious mischief should not be included in his offender score.




                                                       20
No. 44086 -5 -II



          We reverse and remand for a new trial on the first degree burglary conviction, affirm the

second degree unlawful possession of a firearm conviction, and remand for sentencing on the

unlawful possession of a firearm conviction.




We concur:




LEE, J.




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