     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 76002-5-1                            IV
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SALLYEA O'NEAL MCCLINTON,                        UNPUBLISHED OPINION                     c-,     .... .......
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                      Appellant.                 FILED: April 16,2018                    ..-..

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       LEACH, J. — Sallyea McClinton appeals his convictions for one count of                      •-•


failure to register as a sex offender and two counts of failure to comply with

community custody. He claims that the State deprived him of a fair trial twice in its

closing argument by misstating the statutory knowledge standard and shifting the

burden of proof. The State concedes that its misstatement of the knowledge

standard prejudiced McClinton on the failure to register charge because it

addressed the sole disputed issue, whether McClinton knowingly failed to comply

with a requirement of sex offender registration. Because the record establishes

that McClinton knowingly failed to comply with his community custody conditions

and he did not dispute this at trial, the State's misconduct did not deprive McClinton

of a fair trial on these charges. In addition, the State's closing argument did not

shift the burden of proof with the statement that the evidence supported only its

theory of the case. We thus reverse in part and affirm in part.
No. 76002-5-1/ 2




                                 BACKGROUND

      The State released McClinton from confinement on August 3, 2015. As the

result of a 1997 conviction for first degree rape, RCW 9A.44.130(1)(a) required

that he register as a sex offender. On August 5, he met with his community

corrections officer(CCO),Sean Thompson, and registered as a sex offender. He

completed a "Change of Address/Homelessness Registration"form.

      When a registrant "lacks a fixed residence," he must report to the sheriff

weekly.1   The registration form requires that an offender who lacks a fixed

residence initial a particular section to acknowledge his understanding of the

weekly reporting requirement. Although McClinton did not initial this section, he

identified himself as homeless without an address. He did not check in weekly.

      On August 6, the Department of Corrections(DOC)fitted him with a GPS

device (global positioning system) as part of his community custody conditions.

Thompson told McClinton that he needed to report back to Thompson on August

11. McClinton did not report back.

      Police arrested McClinton on September 25. The State charged him with

failure to register as a sex offender and failure to comply with community custody.

On July 21, 2016, the State released him from jail where it had been holding him

on a different charge. He reported to Thompson the following Monday. The DOC

fitted him with a GPS for a second time and told him to report back on August 2.



       1 RCW 9A.44.130(6)(b).
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He did not report back. The State charged him with another count of failure to

comply with community custody. A jury found him guilty of all three counts. He

appeals his convictions.

                                    ANALYSIS

                             Prosecutorial Misconduct

       McClinton asserts that the State committed prejudicial misconduct in its

closing argument by misstating the statutory knowledge standard and shifting the

burden of proof. Prejudicial prosecutorial misconduct deprives a defendant of his

guaranty to a fair trial under the Sixth and Fourteenth Amendments to the United

States Constitution and article 1, section 22 of the Washington State Constitution.2

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

the context of the record and all of the circumstances of the trial, the prosecutor's

conduct was both improper and prejudicial."3 To establish prejudice, a defendant

must show a substantial likelihood that the misconduct affected the jury verdict?'

If the defendant fails to object to the alleged misconduct at trial, he waives the

claimed errors unless he establishes that "the [prosecutors] misconduct was so

flagrant and ill intentioned that an instruction would not have cured the prejudice."5




         re Pers. Restraint of Glasmann 175 Wn.2d 696,703-04, 286 P.3d
       2 In
673(2012).
     3 Glasmann, 175 Wn.2d at 704.
     4 Glasmann, 175 Wn.2d at 704.
     5 Glasmann, 175 Wn.2d at 704.

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No. 76002-5-1/4



A. The State Committed Misconduct That Prejudiced the Jury on the Failure To
Register Charge When It Misstated the Knowledge Standard in Its Closing
Argument
      McClinton asserts that the State engaged in prejudicial misconduct when it

misstated in its closing argument that Washington's culpability statute° requires

that the defendant have only constructive knowledge as opposed to actual

knowledge. A prosecutor commits misconduct if she misstates the law.7 To

convict a defendant of failure to register as a sex offender, the State must prove

beyond a reasonable doubt that the defendant "knowingly" failed to comply with a

requirement of sex offender registration.° To convict a defendant of failure to

comply with community custody,the State must prove beyond a reasonable doubt

that the defendant "willfully" failed to comply.° A person ads "willfully" when he

acts "knowingly."1° Washington's culpability statute defines"knowingly" asfollows:

              (i)[the defendant] is aware of a fact, facts, or circumstances
       or result described by a statute defining an offense; or
             (ii) he or she has information which would lead a reasonable
       person in the same situation to believe that facts exist which facts
       are described by a statute defining an offense.1111
       Our Supreme Court has explained that even though this definition allows

the fact finder to find actual knowledge from circumstantial evidence, it includes




       6 RCW 9A.08.010(1)(b).
       7 State v. Allen, 182 Wn.2d 364, 373, 341 P.3d 268(2015).
       6 RCW 9A.44.132(1),.130; RCW 9A.08.010(b).
       9 RCW 72.09.310.
       10 RCW 9A.08.010(4).
       11 RCW 9A.08.010(1)(b)(i),(ii).
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only actual knowledge, not constructive knowledge based on what a person should

know.12

      [T]he jury[may]find that the defendant had knowledge if it finds that
      the ordinary person would have had knowledge under the
      circumstances. [But][t]he jury must still be allowed to conclude that
      he was less attentive or intelligent than the ordinary person [and
      therefore lacked actual knowledge].... The jury must still find
      subjective knowledge.1131
       Here, to prove that McClinton knowingly failed to comply with a requirement

of sex offender registration, the State needed to prove beyond a reasonable doubt

that McClinton had actual knowledge that he needed to report weekly." To prove

that he failed to comply with community custody, the State needed to prove beyond

a reasonable doubt that with actual knowledge, McClinton either made his

whereabouts unknown to the DOC or failed to maintain contact with the DOC as

directed by a CC0.15 The trial court submitted to the jury the Washington Pattern

Jury Instruction-Criminal defining "knowingly" that mirrors the statutory definition:

              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.

               If a person has information that would lead a reasonable
       person in the same situation to believe that a fact exists the jury is
       permitted but not required to find that he or she acted with knowledge
       of that fact.

       12 See State v. Shipp, 93 Wn.2d 510, 514-17,610 P.2d 1322(1980)* see
also Allen, 182 Wn.2d at 374.
       13 Shipp, 93 Wn.2d at 516-17.
       14 RCW 9A.44.130(6)(b).
       13 RCW 72.09.310.

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No. 76002-5-I/O




             When acting knowingly as to a particular fact is required to
      establish an element of a crime, the element is also established if a
      person acts intentionally as to that fact.I161
         McClinton claims that the State misstated the law in its closing argument

when it (1)told the jury that the law required, as opposed to permitted, the jury to

make the inference described in paragraph two of the WPIC and (2) suggested

that the jury need find only that McClinton had constructive knowledge based on

what he should have known as opposed to actual knowledge. The State concedes

that it "made a number of inaccurate or unintentionally misleading statements

about the knowledge standard, sometimes conflating knowledge and notice, and

suggesting that the State only needed to prove constructive knowledge rather than

actual knowledge."       The State also concedes that its misstatements were

substantially likely to have affected the verdict on McClinton's failure to register

charge but not on his failure to comply with community custody charges. We

agree.

         In its closing, the State explained to the jury the WPIC defining the

knowledge requirement:

                [Prosecutor]: Pay attention to paragraph number two,
         although all of it is important. If a person has information that would
         lead a reasonable person in the same situation to believe that a fact
         exists, then that meets the requirement of knowledge. The
         defendant in this case—

               [Defense Counsel]: Objection. Your Honor, I object, that's an
         Incorrect statement of the law.

            WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
         16 11
CRIMINAL 10.02, at 222(4th ed. 2016)(WPIC)(emphasis added).
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           [The Court]: Okay. The jurors have the jury instructions there,
      so. Go ahead.

              [Prosecutor]: Again, I ask you to pay attention to all of it, all
      of it is used in defining knowledge; but I want to, in particular, point
      out this portion to you which is, that if the defendant does have
      reasonable information or information to lead a reasonable person to
      conclude a certain thing, then they have knowledge. He has all of
      these notices showing him that he needed to register, that he needed
      to pay particular attention on how to do this, and where to do it.
(Emphasis added.)

      The State therefore suggested that if the jury found McClinton had Information

that would lead a reasonable person in his situation to have actual knowledge, then

it must find that McClinton had knowledge. This is wrong for two reasons. First, the

WPIC makes this inference permissive as opposed to mandatory, and both the

WPIC and the culpability statute allow this inference only if the jury finds that

circumstantial evidence proves the defendant had actual as opposed to constructive

knowledge. Second, in context, the jury may have interpreted the State's argument

to mean that the State need prove only constructive knowledge. So the State

misstated the law defining the knowledge standard.

      The State again misstated the law in its rebuttal argument:

             [Prosecutor]: The defense asserted a couple of times in its
      theory that the State must prove what is in his mind. Now think about
      that. First of all, that's not one of the elements that the Court gave
      Kai as to what [it] is that the State needs to prove; but also, that
      makes no sense.

             [Defense Counsel]: Objection. Misstates the law. It is an
       element, Your Honor.

             [The Court]: Overruled.

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No. 76002-5-I /8




            [Prosecutor]: The State does not need to prove what is in
      anyone's mind, let alone whether this particular mind knew
      something or did [not] know something.

            What the State needs to prove is what is in front of you. Part
      of how it is that the State proves knowledge is by proving whether a
      reasonable person in that situation with that particular information
      would have known.

             [Defense Counsel]: Objection, Your Honor. This is in violation
      of State vs. Allen.

            [The Court]: It's a permissible inference; it's not required.

             [Prosecutor]: And, again, I pick my words carefully by saying
      "part of it," because I do want you to look at all of that instruction.
      The other part of that instruction is that ignorance of the law,
      essentially, is not an excuse.

            [Defense Counsel]: Objection. Misstates the law again. It is
      an element, Your Honor.

             [The Court]: Overruled.

              [Prosecutor]: If you'll turn to Instruction 10, you'll read the last
      sentence of that first paragraph that says, "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 the crime." All of that, every
      word of that page goes into finding knowledge. I ask you to consider
      this very carefully when you consider whether or not this defendant
      in this case had knowledge.
             The State does not bear the burden of proving, by prvinq
      someone's mind open, what was in that particular person's mind at
      a particular time. Knowledge is defined by law for a reason. You
      have it in front of you,and I trust that you will exercise your judgment,
      and your reason, and your common sense in applying this when you
      assess whether or not this individual in front of you had notice about
      registering.
(Emphasis added.)




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No. 76002-5-1/9




       The State again misstated the law when it reiterated that "[Tie State does

not need to prove what is in anyone's mind" and thus does not need to prove that

McClinton had actual knowledge of the reporting requirement. It also suggested

for a second time that it could prove the knowledge requirement by showing

constructive knowledge when it isolated the language describing the permissive

inference. These mischaracterizations of the law constitute misconduct.

       Also, consistent with the State's concession, its misstatements likely

influenced the jury's verdict on the failure to register charge. First, the trial court's

overruling of multiple defense objections during the State's closing argument

suggested that the State's interpretation of the law was correct. Second, the

State's misstatements related to the sole disputed issue on the failure to register

charge. To support his argument that he did not have actual knowledge of the

weekly reporting requirement, McClinton introduced evidence that he did not initial

the requisite form in acknowledgement of the requirement. As a result of the

State's misconduct, any juror who may have doubted that McClinton actually

understood the reporting requirement based on his failure to initial the form could

have felt obligated to convict him on the ground that a reasonable person would

have known of the requirement. The State's prejudicial misconduct requires

reversal on the failure to register charge.

       By contrast, the State's misconduct was harmless with respect to both

convictions for failure to comply with community custody. The evidence in the


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No. 76002-5-1 / 10




record supports only the State's theory that McClinton knowingly failed to maintain

contact with DOG or make his whereabouts known. Thompson testified that he

informed McClinton that he needed to report back to Thompson on August 11,

2015, which McClinton did not do. And when Thompson next met with McClinton

in July 2016 and told him to report back on August 2, McClinton again failed to

report back. In closing argument, defense counsel explained that McClinton did

not comply with community custody, not because he was unaware of the

requirements but because checking in with Thompson prevented him from seeing

his family; McClinton did not comply with community custody because it was

"onerous." Because the record establishes that McClinton knew his community

custody conditions required that he report to Thompson on specific days, which he

failed to do, and because he did not dispute this issue at trial, the State's

misconduct was harmless with respect to his convictions for failure to comply with

community custody.

       McClinton makes two additional claims challenging his failure to register

conviction. First, he contends that lacking a fixed residence was an essential

element of the charge that the State needed to include in the information. Second,

he asserts that the trial court abused its discretion by refusing to give his proposed

instruction defining the knowledge standard. "'Principles ofjudicial restraint dictate

that if resolution of an issue effectively disposes of a case, we should resolve the




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No. 76002-5-1 / 11




case on that basis without reaching any other issues that might be presented."'"

Because we reverse McClinton's failure to register conviction on the basis of

prejudicial prosecutorial misconduct, we decline to reach these issues.
B. The State Did Not Improperly Shift the Burden ofProofin Its Closing
Argument
       Next, McClinton asserts that the State committed prejudicial misconduct by

shifting the burden of proof in its closing argument. We disagree.

      The State commits misconduct when it shifts or misstates its burden to

prove the defendant's guilt beyond a reasonable doubt." A prosecutor may

commit misconduct if she states in closing argument that the jury should find the

defendant guilty because he did not present evidence to support his theory of

defense.19 But "R]he mere mention that defense evidence is lacking does not

constitute prosecutorial misconduct or shift the burden of proof to the defense."29

McClinton claims that in the State's rebuttal argument, it improperly suggested that

he had to disprove its case and offer evidence to prove his innocence when it

stated, "There's no evidence pointing any other way but the fact that he had

knowingly failed to register, and he willfully failed to comply with the community

correctional officers' directives."   Because McClinton did not object to this

statement at trial, in addition to a showing of misconduct, he must establish that


     "Wash. State Farm Bureau Fed'n v. Gregoire, 162 Wn.2d 284, 307, 174
P.3d 1142(2007)(internal quotation marks omitted)(quoting Hayden v. Mut. of
Enumclaw Ins. Co., 141 Wn.2d 55,68, 1 P.3d 1167(2000)).
      18 State v. Lindsay, 180 Wn.2d 423,434, 326 P.3d 125(2014).
      19 State v. Jackson, 150 Wn.App. 877, 885, 209 P.3d 553(2009).
      28 Jackson, 150 Wn. App. at 885-86.
No. 76002-5-1 / 12




the statement was so flagrant and ill intentioned that a curative instruction could

not have cured the prejudice.21

      The State did not argue that McClinton had an obligation to present

evidence or prove his innocence. Instead, it stated that the evidence did not

support McClinton's theory of the case and supported only its theory that he

knowingly failed to register. The State simply advocated for its position and

explained why the jury should find McClinton guilty. The State did not engage in

misconduct by shifting the burden of proof.

                                  Cumulative Error

       Finally, McClinton asserts that the alleged errors cumulatively require a new

trial. The cumulative error doctrine applies 'when there have been several trial

errors that standing alone may not be sufficient to justify reversal but when

combined may deny a defendant a fair trial.'"        Because we identified a single

instance of prosecutorial misconduct as the only error, the cumulative error

doctrine does not apply.

                                  CONCLUSION

       The State committed misconduct when it confused constructive knowledge

and actual knowledge in its closing argument. Because this misconduct likely

prejudiced the jury on the failure to register charge alone, we reverse McClinton's



       21 Glasmann, 175 Wn.2d at 704.
       22 In re Pers. Restraint of Morris, 176 Wn.2d 157, 172,288 P.3d 1140(2012)
(quoting State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390(2000)).
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No. 76002-5-1/13




failure to register conviction, otherwise affirm the trial court, and remand for further

proceedings consistent with this opinion.



                                                     za_eit/
WE CONCUR:



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