                                                          3TAUUF VfAS'.iK-iT

                                                          201kMAR 10 Ail II* 03




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            DIVISION ONE

             Respondent,                        No. 69336-1-1


                  v.                            UNPUBLISHED OPINION


ANGEL MICHELLE DAVIS

             Appellant.                         FILED: March 10,2014



       Dwyer, J. — Angel Davis appeals from the judgment entered on a jury's

verdict finding her guilty of forgery in violation of RCW 9A.60.020(1)(b). Davis

was arrested and charged with forgery after depositing a sizeable check into her

account at the Crossroads branch of Key Bank just minutes after opening a

checking account at the Overlake branch of Key Bank. On appeal, Davis claims

that she was denied a fair trial as the result of asserted improper conduct

engaged in by the prosecutor during both closing and rebuttal argument. Finding

that no improper conduct occurred, we affirm.

                                         I


       On October 24, 2011, Davis opened a checking account at the Overlake

branch of Key Bank. Kelly Alaghemand and Brandon Hamblin, two Key Bank

employees, assisted Davis in opening her account. Although Davis expressed
No. 69336-1-1/2



concern about passing a credit check, she provided Alaghemand with personal

information necessary to open an account, including her Social Security number

and her employer, which, she claimed, was Whole Foods. Davis initially said that

it was her day off but later indicated that she was in a hurry because she was on

her lunch break. Although the account was free, Davis was required to deposit a

minimum of $50.00 when opening the account, which she did. She did not make

any other deposits at that time.

       After Davis left, Alaghemand and Hamblin both expressed reservations

about Davis, primarily because of her inconsistent statements regarding her job

at Whole Foods. Hamblin called Whole Foods in an effort to verify Davis's

employment, but was unable to do so. Meanwhile, Alaghemand reviewed

Davis's new account and discovered that a check for over $2,500 had just been

deposited into the account from the nearby Crossroads Key Bank branch. She

notified Hamblin immediately who called the Crossroads branch and spoke to a

teller there, Tina Responte.

       Responte told Hamblin that Davis had just been at the branch and that

she had deposited a check that was made out to her and drawn on the US Bank

account belonging to Teriyaki Wok. Responte testified at trial that Davis had

wanted to cash the check, but because the account was new, there was a "new

account hold" that prevented her from cashing it. After learning what had

happened, Hamblin told Responte to place an additional hold on the funds.
Responte testified that, two days after Davis deposited the check, Davis returned
to the Crossroads branch, approached Responte's teller window, and asked to

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withdraw the total amount of the check that she had previously deposited.

Responte told her that the funds were still on hold and would be released once

the check cleared. Davis then asked for the check back. After Responte told

Davis that the check had already been processed and could not be returned,

Davis argued with Responte for several minutes before leaving. Several weeks

later, Key Bank closed Davis's account and sent Davis a cashier's check in the

amount of the funds deposited into her account. Thereafter, Key Bank was

notified by US Bank that the check was "not good."

      Teriyaki Wok, a restaurant in Renton, has a bank account with US Bank.

On October 24, 2011, the owner of the restaurant, Keuk Phong, discovered that

a check made payable to Angel Davis in the amount of $2,567.36 had recently

cleared his account. As Phong did not know anyone named Angel Davis, he

went to the location where he kept his checks and discovered that an entire book

of checks was missing. Upon discovering the missing checks, he reported the

loss to US Bank and to the Renton Police Department.

      The Renton Police Department assigned Officer Kristen Knott to

investigate. Nearly two months later, Knott arrested Davis. The prosecutor

charged Davis with forgery.

      At trial, Davis testified that the check had been given to her by a woman

named Rita Wynn as payment for bookkeeping work that Davis had performed

for her. Davis testified that Wynn had approached her at the library and offered

her a job. Wynn then came to Davis's residence and provided her with a box of
receipts that she wanted organized and entered into a ledger. Davis testified that

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No. 69336-1-1/4



Wynn told her that Wynn owned a restaurant. Once Davis completed the work,

she asserted, Wynn gave her a check and asked her to wait several days before

cashing the check in order to ensure that sufficient funds were in the account.

       Davis further testified that she had intended to deposit the check at the

Overlake branch but, upon arriving, had misplaced it and did not find it in her car

until she left the Overlake branch. Davis admitted that she had lied to Hamblin

and Alaghemand about her employment at Whole Foods but stated that she did

so because she "didn't want to go into a long spiel about what I actually did,

which is taking care of my grandmother." Additionally, Davis maintained that she

never tried to cash the check at the Crossroads branch, contrary to Responte's

testimony but, rather, that she tried to "take out $25 of my own money."

       At trial, Hamblin testified as a witness for the State. During direct

examination, the prosecutor attempted to elicit testimony from Hamblin regarding

"specialized training or education [he had] with regard to fraud." As Hamblin

described his training, Davis objected, asserting that the State had failed to

disclose Hamblin as an expert witness. After the jury had been excused, the

prosecutor—in an effort to qualify Hamblin as an expert—told the judge, "I am

intending, ifthe court allows me to ask him, a generalized question about his

experience as to people bank hopping, why that has significance to someone

who works at a bank, do people who are committing fraud tend to go from bank

to bank." The trial court sustained Davis's objection. Although the State was

precluded from qualifying Hamblin as an expert witness, the State did elicit

testimony from him as a lay witness that Davis's conduct in opening her account

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and depositing the check raised "red flags."

      A jury found Davis guilty as charged. The trial court sentenced Davis to

30 days of electronic home detention and ordered her to pay restitution to US

Bank. Davis appeals.

                                         II


       On appeal, Davis condemns the prosecutor's conduct during closing and

rebuttal argument, contending that prosecutorial misconduct deprived her of a

fair trial. The prosecutor's conduct was improper and prejudiced her defense,

she asserts, because the prosecutor (1) argued facts not in evidence and (2)

effectively testified as an expert on the behavior of persons who commit fraud.

We disagree.

       "A defendant who alleges improper conduct on the part of a prosecutor

must first establish the prosecutor's improper conduct and, second, its prejudicial

effect." State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). "Attrial

'[cjounsel are permitted latitude to argue facts in evidence and reasonable
inferences' in their closing arguments." Dhaliwal, 150 Wn.2d at 577 (alteration in

original) (quoting State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985)).
"Moreover, the prosecutor, as an advocate, is entitled to make a fair response to

the arguments ofdefense counsel." State v. Russell, 125 Wn.2d 24, 87, 882
P.2d 747 (1994).

       We review any allegedly improper statements "within the context ofthe
prosecutor's entire argument, the issues in the case, the evidence discussed in
the argument, and the jury instructions." Dhaliwal, 150 Wn.2d at 578. However,
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even when a prosecutor engages in misconduct, such actions do not constitute

"grounds for reversal if they were invited or provoked by defense counsel and are

in reply to his or her acts and statements, unless the remarks are not a pertinent

reply or are so prejudicial that a curative instruction would be ineffective."
Russell, 125 Wn.2d at 86. Ultimately, in order to show prejudice, the defendant

must establish that "there is a substantial likelihood that the misconduct affected

the jury's verdict." State v. Copeland, 130 Wn.2d 244, 284, 922 P.2d 1304
(1996). "The absence of a motion for mistrial at the time of the argument strongly
suggests to a court that the argument or event in question did not appear
critically prejudicial to an appellant in the context of the trial." State v. Swan, 114
Wn.2d 613, 661, 790 P.2d 610 (1990).

       Davis first assigns error to the following statement made by the prosecutor

during closing argument:

       She goes to the one bank, she opens the .. . account. . . says
       nothing about the check. Not one word. And then minutes later
       she's at the next bank with a new teller, somebody who hasn't seen
       her, trying to get the money. The bank is a couple minutes away.
       Who does this? Who does this? Well, Brandon Hamblin, the bank
       manager, told you people who are trying to defraud the bank do
       that.

 Davis objected, asserting that the prosecutor was arguing facts not in evidence.
 Instead of ruling on the objection, the court issued a cautionary instruction: "The
jury is going to have to rely on their memory of the evidence to see if it supports
 the argument."

        The prosecutor's conduct was not improper. During direct examination of
 Hamblin, the prosecutor elicited testimony indicating that Davis's behavior in
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No. 69336-1-1/7



depositing the check at a different branch within minutes of opening an account

raised a "red flag." Indeed, the prosecutor, in closing argument, identified five

"red flags" supporting the inference that Davis knew that the check was forged

and intended to defraud the bank. Viewed in the context of Hamblin's testimony,

Alaghemand's testimony, and Responte's testimony, the prosecutor's argument

that "people who are trying to defraud the bank" engage in "bank hopping" and

that "Brandon Hamblin told . . . you that" was reasonable.

       The testimony supports the prosecutor's argument. Although Hamblin did

not use the same words that the prosecutor used, he did testify that Davis's

behavior was concerning in light of the fact that most fraud is committed shortly

after a new account is opened. For her part, Alaghemand testified that she was

so concerned upon learning that Davis had been at the second branch within

minutes of opening the new account at her branch that she immediately reported

this to Hamblin, her manager. Responte, in response to the question, "[wjhat did

you think about the fact that the defendant just came in, or came into your bank
and tried to cash a check after she just opened an account somewhere else?"

answered "nobody does that, unless you are hiding something." This testimony

supported the inference argued by the prosecutor that Davis intended to defraud

the bank.

       Davis next assigns error to the prosecutor's statement that, "I would

submit to you that people who are trying to defraud the bank and avoid detection
do this all the time." Davis contends that this statement amounted to the

prosecutor testifying as an expert witness. This is so, she asserts, because the
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No. 69336-1-1/8



prosecutor's argument mirrored the testimony that the prosecutor intended to

elicit from Hamblin had the judge permitted him to testify as an expert witness.

       Again, the prosecutor's conduct was not improper. This inference is

supported by the testimony of Hamlin, Alaghemand, and Responte. That the

prosecutor prefaced the statement with "I would submit to you" does not change

that fact, especially in light of the fact that the jury had already been instructed

that statements made by the lawyers did not constitute evidence.1
        Davis finally assigns error to the prosecutor's statement during rebuttal

argument regarding police interviews with Responte that had not been admitted

into evidence:

        The defense wants you to totally discredit her testimony because
        when she gave a paragraph long statement to the police over the
        phone when she was at work, and she didn't include every single
        detail in that, that she has included in three other interviews that
        have taken place over nine months—

Davis objected, asserting that the prosecutor was again arguing facts not in
evidence. However, the court did not rule on the objection. Moreover, Davis did

not move to strike, did not request a curative instruction, and did not move for a

mistrial.

        The prosecutor's conduct was not improper. The prosecutor's statement

        1The pertinent language from the jury instructions is as follows:
               The lawyers' remarks, statements, and arguments are intended to help
        you understand the evidence and apply the law. It is important, however, for you
        to remember that the lawyers' statements are not evidence. The evidence is the
        testimony and the exhibits. The law is contained in my instructions to you. You
        must disregard any remark, statement, or argument that is not supported by the
        evidence or the law in my instructions.

Jury Instruction 1.

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was in response to defense counsel's contention that—because Responte had

not initially mentioned to Officer Knott that Davis had tried to cash the check the

first time she came in, but had testified at trial that Davis had in fact tried to cash

the check—Responte did not remember what had happened and that the jury

should discredit her testimony. In response to defense counsel's attack on

Responte's credibility, the prosecutor offered an explanation for the

inconsistency, which the prosecutor was entitled to do. Although the prosecutor

did misstate the number of out-of-court statements Responte gave, it was a

minor error, and it was made in response to defense counsel's attack on

Responte's credibility. Viewing this misstatement "within the context of the

prosecutor's entire argument, the issues in the case, the evidence discussed in
the argument, and the jury instructions," Dhaliwal, 150 Wn.2d at 578, we do not

conclude that it was improper.

       Affirmed.




We concur:




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