      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  DIVISION ONE
                      Respondent,
                                                  No. 73930-1-1                   S    3£
                 v.
                                                  UNPUBLISHED OPINION             S    r^
                                                                                   i   '-.
BRANDON K. DAHL,

                      Appellant.                  FILED: November 9, 2015         §: §>

       Dwyer, J. — Brandon Dahl appeals from the judgment entered on the

jury's verdicts finding him guilty of theft of a motor vehicle and obstructing a law
enforcement officer. Dahl claims that several statements made by the prosecutor

during closing argument constituted misconduct. He also claims that his counsel
provided ineffective assistance by "fail[ing] to properly object to the prosecutor's
closing argument." Finally, he claims, and the State concedes, that the trial court
erred in imposing a community custody condition that prohibited him from
"frequenting] places whose primary business is the sale of liquor." We affirm his
convictions but remand to the trial court for revision of the judgment and

sentence.

                                           I


       On June 6, 2014, the State charged Brandon Dahl with one count of theft
of a motor vehicle. Prior to trial, the State was allowed to amend the information
No. 73930-1-1/2



to add a charge of obstructing a law enforcement officer. Dahl pleaded not guilty

to both charges. The evidence presented at trial is summarized as follows.

         On June 4, 2014, James Sittler drove a Ford Escape owned by his

fiancee, Rachel Bachtell, to Allison Clark's house. Sittler recalled that he "put my

keys on [a] rack when I had arrived at the house."

         Sittler was in the downstairs portion of the house with Clark when Dahl

"just kind of showed up" at the sliding glass door. Sittler observed that Clark had

"a bewildered look on her face" at Dahl's arrival. Sittler heard Clark engage in

conversation with Dahl and grant his request to use the bathroom inside her

house.

         Clark went upstairs as Dahl came inside to use the bathroom. When Dahl
emerged from the bathroom, Sittler was sitting on the couch. Soon thereafter, as
Sittler got up to use the bathroom, Sittler noticed that Dahl was "messing with the
keys on the rack." When Sittler came out of the bathroom, he observed that Dahl
was gone. Several minutes later, Sittler went outside to get something from the
Escape and noticed that it was also gone. After Sittler told Clark what had
happened, the two got into Clark's vehicle and drove around in an attempt to
locate the Escape. Sittler also called 911 to report the theft. Clark then drove
Sittler to Bachtell's house, where he was residing at the time.

         Soon thereafter, Sittler spoke with Mason County Deputy Sheriff Patrick

Lopez, who arrived at Bachtell's house in response to the theft report. While
driving to Bachtell's house, Lopez had been notified by dispatch that the stolen
vehicle had been located and that other units were attempting to pull it over.


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No. 73930-1-1/3



        Lopez took written statements from Bachtell and Sittler. After asking

Bachtell if she had a spare key to the Escape, to which she responded in the

affirmative, he transported her to the location of her vehicle.

        Dahl was with Bachtell's vehicle when Lopez arrived. Lopez asked Dahl if

he knew who owned the vehicle and if he had permission to use it. Dahl

responded that he did not know who owned the vehicle but that Clark had given

him permission to use it.1

        Sheriff's Corporal Timothy Ripp testified that, on June 4, he was on patrol
duty "looking for a reported stolen vehicle." Ripp recalled that he "was advising
other units that I had observed the vehicle " but that when he tried to "get behind

[the vehicle]," it "accelerated in speed." He eventually "lost the vehicle." Later, at
the site where the vehicle was located, Ripp spoke with Dahl. When asked
where he went after spotting Ripp's patrol vehicle, "[Dahl] said he had pulled
down a driveway ... to hide from me."

        At trial, when asked whether he was performing his official duties at the
time of the pursuit, and whether Dahl's actions hindered his ability to exercise
those duties, Ripp testified "yes" as to both questions.
         Deputy Michelle Williams testified that, at the beginning of her shift on
June 4, a call came in regarding a stolen vehicle. When she arrived at the site



         1 Dahl testified that, while at Clark's house, he asked her if he could borrow a vehicle,
 and that "[s]he said—she said yes. But that's - she wanted to wait until her mom got home so
 there was two vehicles, so she had another vehicle." Dahl asserted that he then "grabbed the
 keys off the latch ... Iseen [sic] that it was a Ford key" and told Clark that he "wasn't going to be
 gone long." Dahl then drove off in the Ford.
           At trial, Clark denied giving Dahl permission to use any vehicle. In addition, Bachtell
 testified that herson's father, Sittler, had permission to use the vehicle but that Dahl did not.
No. 73930-1-1/4



where the vehicle was located, she observed that the vehicle was "positioned in

the rear of [a] driveway closest to the street." She testified that "I checked to

make sure that there was [sic] no persons inside the vehicle. I then placed my

hand on the hood of the vehicle and it felt warm to the touch." She then knocked

on the door of a nearby home and asked the residents if Dahl was there. After

some encouragement from a male resident, Dahl appeared and she took him into

custody.

       Williams also had an opportunity to question Dahl. Williams testified that

when she asked Dahl what he was doing with the vehicle, Dahl told her that he

had borrowed it from Clark. Williams then asked Dahl if the vehicle belonged to

Clark, if it was Clark's vehicle to lend, where he was going, and if he was going to
return the car. To each of these questions, Dahl's response to Williams was "I

don't know." When Williams further questioned Dahl regarding why he had been

hiding, he told her that he "didn't want to get into trouble."2
        Ajury found Dahl guilty of both charges. He was sentenced to a term of
confinement and probation. The terms of his probation included a community
custody condition requiring that he "not go into bars, taverns, lounges, or other
places whose primary business is the sale of liquor."

        Dahl appeals.




        2 At trial, Dahl denied stating that he did not know when he was going to take the car
back, that he was trying to avoid an officer, and that he was hiding from police because he did not
want to get into trouble.
No. 73930-1-1/5




      Dahl first contends that several statements made by the prosecutor during

closing argument constituted prosecutorial misconduct requiring reversal. We

disagree.

      "A defendant claiming prosecutorial misconduct must show that the

prosecutor's conduct was both improper and prejudicial in the context ofthe
entire record and circumstances at trial." State v. Miles, 139 Wn. App. 879, 885,

162 P.3d 1169 (2007). We review the propriety ofa prosecutor's conduct in the
context ofthe total argument, the issues in the case, the evidence addressed in
the argument, and the instructions given. State v. Russell. 125 Wn.2d 24, 85-86,
882 P.2d 747 (1994). In closing argument, a prosecutor is afforded wide latitude
in drawing and expressing reasonable inferences from the evidence. State v.
Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). Improper comments are

prejudicial only where "'there is a substantial likelihood [that] the instances of
misconduct affected the jury's verdict.'" State v. Maqers, 164Wn.2d 174, 191,
189 P.3d 126 (2008) (alteration in original) (quoting State v. Pirtle, 127 Wn.2d
628, 672, 904 P.2d 245 (1995)).

       Moreover, "'[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 a motion for new trial or on appeal.'" Russell. 125 Wn.2d at 93
(quoting Jones v. Hoqan, 56 Wn.2d 23, 27, 351 P.2d 153 (1960)). Consequently,
where a defendant does not object and request a curative instruction at trial,

 reversal is unwarranted unless we determine that the objectionable remark "'is so
No. 73930-1-1/6



flagrant and ill-intentioned that it causes an enduring and resulting prejudice that

could not have been neutralized by a curative instruction to the jury.'" State v.

McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132

Wn.2d 529, 561, 940 P.2d 546 (1997)).

       Dahl's appellate claim involves three instances of alleged misconduct. At

trial, he interposed an objection to only one of the claimed wrongful acts.

                                          A


       Dahl asserts that the prosecutor engaged in misconduct at the beginning

of his closing argument by improperly stating that itwas the duty of the jury to

"figure out what's true and not true." Dahl's trial counsel did not object to this
statement. Thus, on appeal, Dahl bears the burden of demonstrating both that

the statement was improper and that it was so flagrant and ill-intentioned that any

resulting prejudice could not have been neutralized by a curative instruction.
       "[A] jury's job is to determine whether the State has proved the charged
offenses beyond a reasonable doubt." State v. Emerv, 174 Wn.2d 741, 760, 278
P.3d 653 (2012). "Urging the jury to render a just verdict that is supported by
evidence is not misconduct." State v. Curtiss, 161 Wn. App. 673, 701, 250 P.3d

496 (2011); accord State v. Fuller, 169 Wn. App. 797, 822, 282 P.3d 126 (2012),
review denied, 176 Wn.2d 1006 (2013).

       However, "[t]elling the jury that its job is to "speak the truth," or some

variation thereof, misstates the burden of proof and is improper." State v.

Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014); Emerv, 174 Wn.2d at 760-

65 (improper but not prejudicial for a prosecutor to make statements about truth
No. 73930-1-1/7



that mischaracterized the role of the jury); State v. Evans, 163 Wn. App. 635,

644-46, 260 P.3d 934 (2011) (the prosecutor's statement that the jury "get to the

truth" improperly "suggested to the jury that it had an obligation to determine the

truth," but was not prejudicial); State v. Anderson. 153 Wn. App. 417, 429, 220

P.3d 1273 (2009) ("The prosecutor's repeated requests that the jury 'declare the

truth,'. . . were improper," but not prejudicial.).

       The prosecutor's challenged remarks were as follows:

               You've had a chance to sit here and listen to all the
       testimony in this case. You've heard testimony from several
       different-different witnesses, including the defendant. Now as a
       juror, you took a duty or you took an oath to do your duty as a juror.
       And that duty means to listen to the witnesses, figure out what's
       true and what's not true, listen to the law that the Judge just gave
       you, take it back to the jury room, review it again if you want to, and
       then decide this case based upon the law that she gave you and
       the facts that were presented to you alone.

(Emphasis added.)

       When the prosecutor's remarks are viewed in the context of the entire
argument and in light ofthe instructions given it is apparent that the prosecutor's
use of the word "true" did not mischaracterize the role of the jury. In urging the

juryto "figure out what's true and what's not true" the prosecutor was

appropriately asking that the jury return a just verdict afterweighing all ofthe
evidence and making credibility determinations. The statements surrounding the

prosecutor's reference to truth support the propriety of the statement. The
prosecutor encouraged the jury to recall the testimony ofthe witnesses, apply the
law, and "decide this case based upon the law that [the judge] gave you and the

facts that were presented to you alone." This argument aligns with the court's
No. 73930-1-1/8



instruction that the jurors "are the sole judges of the value or weight to be given

to the testimony of each witness." Considered in context, the prosecutor's use of

the word "true" was an effort to reference the jury's role as fact finders,

evaluators of the evidence, and assessors of the credibility of witnesses. The

prosecutor did not attempt to improperly shift the burden of proof. Rather, the

prosecutor reminded the jury that its verdicts needed to be based on the

evidence. The challenged statement was proper.

       Moreover, even had the prosecutor's challenged remarks been improper,

a curative instruction could have remedied any prejudice.

       Dahl does not establish an entitlement to appellate relief.

                                           B


       Dahl next asserts that the prosecutor committed misconduct by vouching

for the credibility of law enforcement witnesses during the State's rebuttal closing

argument. Dahl's trial counsel did not object to these remarks.

       "It is improper for a prosecutor personally to vouch for the credibility of a

witness." State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995). "Vouching

may occur in two ways: the prosecution may place the prestige of the
government behind the witness or may indicate that information not presented to
the jury supports the witness's testimony." State v. Robinson, No. 71927-7-1,
2015 WL 5098707, at *7 (Wash. Ct. App. Aug. 31, 2015).

       Nevertheless, "[d]uring closing arguments, a prosecutor may argue points

of law that are included within the court's jury instructions and he may comment

on a witness's veracity. A prosecutor may not, however, directly or indirectly


                                          -8-
No. 73930-1-1/9



state a personal belief that a witness was telling the truth." State v. Sandoval,

137 Wn. App. 532, 540, 154 P.3d 271 (2007) (citations omitted). "Prejudicial

error will not be found unless it is "'clear and unmistakable'" that counsel is

expressing a personal opinion." State v. Allen, 161 Wn. App. 727, 746, 255 P.3d

784 (2011) (citing Brett, 126 Wn.2d at 175) (quoting State v. Sargent, 40 Wn.

App. 340, 344, 698 P.2d 598 (1985)).

       The prosecutor's challenged remarks were as follows:

                It's interesting that [Dahl] tells you essentially that the cops
        are lying. [Dahl] never said that. Well you heard the cops. They
        testified. They said — they testified to things [Dahl] said. They
        testified that — Deputy Lopez, do you know who the owner of the
        car is? No. Deputy Williams, where were you going? Don't know.
        When were you going to return the vehicle? Don't know. Why were
        you hiding? Didn't want to get in trouble. Trouble for what? Idon't
        know. To Corporal Ripp, I pulled off to hide from you.
              [Dahl] denied that he said these things to the officers. What
        motive can you possibly imagine the officers making these up?
        There is no — there is no reason for them to do that. Absolutely not
        one shred of reason anywhere for them to make this up. What
        motive does [Dahl] have? Well, we can figure that out.

        In uttering these words, the prosecutor did not improperly vouch for the
State's witnesses.3 Instead, in making these remarks, the prosecutor properly

focused on recounting the testimony offered by the various law enforcement

witnesses and by Dahl.




        3 In fact, the record indicates that defense counsel argued against the credibility of law
enforcement witnesses during the defense closing argument:
               We talked a little bit in voir dire, and actually during the course of this
        case, about police officers and how much they testify in court, and how much
        more credible they probably are going to appear because they testify all the time.
        They're practiced. They know things like to look at the jury. They know how to
        answerthe question that the prosecutor puts to them. They know how to avoid
        difficulties on cross examination, that sort of thing.
No. 73930-1-1/10



       Further, the prosecutor's statement that there was "[absolutely not one

shred of reason anywhere for [the officers] to make this up," was properly

directed at the defense's challenge to the veracity of the officers' testimony. The

prosecutor argued that no evidence presented at trial indicated that the officers

had a motive to lie but that Dahl did. This was not improper.

       Moreover, the record is devoid of any indication that the prosecutor

vouched for his witnesses by relying on "information not presented to the jury."

Robinson, 2015 WL 5098707, at *7. Rather, the prosecutor's argument

concerning the officers' lack of motive to lie was appropriately grounded in the

evidence presented at trial.

       Finally, even had the prosecutor's statements been improper, a proper

curative instruction could have remedied any prejudice.

       Again, Dahl does not establish an entitlement to appellate relief.
                                         C


       Dahl next asserts that a third act of misconduct occurred during the

State's rebuttal argument, claiming that the prosecutor disparaged defense

counsel. Dahl's counsel objected to these remarks at trial. The objection was

overruled. Thus, on appeal, Dahl bears the burden of demonstrating both that

the statement was improper and that there is a substantial likelihood that the

comment prejudiced the jury's verdict. Maqers, 164 Wn.2d at 191.

       "As an advocate, the prosecuting attorney is entitled to make a fair

response to the arguments of defense counsel." Brown, 132 Wn.2d at 566 (citing
Russell, 125 Wn.2d at 87). In this regard, "[i]t is not misconduct for a prosecutor


                                        -10-
No. 73930-1-1/11



to argue that the evidence does not support the defense theory." State v.

Graham, 59 Wn. App. 418, 429, 798 P.2d 314 (1990).

      However, "[i]t is improper for the prosecutor to disparagingly comment on

defense counsel's role or impugn the defense lawyer's integrity." State v.

Thorqerson, 172 Wn.2d 438, 451, 258 P.3d 43 (2011); State v. Warren, 165

Wn.2d 17, 29-30, 195 P.3d 940 (2008) (improper but not prejudicial for

prosecutor to argue that all defense attorneys mischaracterize evidence and twist

the facts); State v. Gonzales, 111 Wn. App. 276, 283-84, 45 P.3d 205 (2002)
(improper and prejudicial for prosecutor to remark that, unlike defense lawyers,
prosecutors take an oath to "see that justice is served"); State v. Neqrete, 72 Wn.
App. 62, 66-67, 863 P.2d 137 (1993) (improper but not prejudicial for prosecutor
to argue that defense counsel is being paid to twist the words of a witness).
       The record herein indicates that during closing argument defense counsel

argued to the jury:

              None of us really know what the dynamic is between all of
       these people. But it's clear enough that there's something going
       on. When one person characterizes another as a fiancee, and the
       other person characterizes one as a baby's daddy.

       In rebuttal, the prosecutor argued:

             You know, making comments like the credibility of the - the
       witnesses and saying that one says fiancee and one says baby
       daddy, frankly, that's kind ofoffensive. As jurors, you saw what
       was going on. Obviously Ms. Bachtell—

              [Defense Counsel]: Your Honor, I'm going to object to the
       characterization.




                                        -11-
No. 73930-1-1/12



               THE COURT: Overruled.4

         Viewed in context, the prosecutor's statement—that Dahl's counsel's

characterization of the testimony was "offensive"—did not improperly impugn

opposing counsel. The prosecutor's argument, made in response to defense

counsel's characterization of a witness as a "baby daddy," was a proper attempt

to emphasize to the jury that the argument advanced by the defense attorney did

not constitute an unbiased review of the factual record. Indeed, the prosecution

attacked the argument of defense counsel, not defense counsel himself. The

trial judge properly overruled the objection.5
                                               Ill


         Dahl next contends that his counsel provided constitutionally ineffective

assistance in failing to object to the two instances of alleged prosecutorial
misconduct discussed above. Because we have determined that the comments

were proper, this claim obviously fails.

                                               IV


         Finally, Dahl contends that "the trial court erred in imposing a community
custody condition prohibiting [him] from frequenting places whose primary
business is the sale of liquor." The State concedes that the trial court erred by
imposing this condition and that the case must be remanded for deletion of this
requirement.


        4The record indicates that, contrary to Dahl's trial counsel's characterization, Bachtell
never referred to Sittler as her"baby's daddy." Her specific testimony, when asked about Sittler's
relationship to her, was that "[w]e have a son together."
         5 Because we determine that the instances of alleged prosecutorial misconductwere, in
fact, proper argument, Dahl's contention that the remarks constituted cumulative error obviously
fails.

                                               -12-
No. 73930-1-1/13



      We affirm Dahl's convictions. We remand the cause to the trial court to

revise the judgment and sentence in accordance with this opinion.6

      Affirmed in part, reversed in part, and remanded.




                                                            ^9^t
We concur:




       6While this appeal was pending counsel informed us that Dahl died. As a result, the
State moved to dismiss the appeal. That motion is denied.
          Dahl's parents moved to intervene as a party. That motion is referred to the trial court on
remand.

                                                 -13-
