 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                              No. 71661-1-1                ~      =g§
                      Respondent,                 DIVISION ONE                 ^ °'°--,-
              v.                                                               cn g^p
                                                  UNPUBLISHED OPINION          ^      5%n>.
ALEXIS J. SCHLOTTMANN,

                      Appellant.                  FILED: June 16, 2014        £ II

       Trickey, J. — Alexis Schlottmann appeals the judgment and sentence

entered following her convictions arising from her participation in several
residential burglaries.    Schlottmann claims errors based on a partial jury,
ineffective assistance of counsel, and prosecutorial misconduct.         Finding no

error, we affirm.

                                       FACTS

       Emily McMason lived across from Marian Finely on a dead-end street.1
On the afternoon of November 18, 2011, McMason noticed an unfamiliar dark

green Mazda minivan pull into Finely's driveway.2 The vehicle parked on the
driveway, and its driver emerged holding a piece of paper.3 McMason observed
the driver as she walked around the house, examined the surroundings, and

peered into windows.4 When McMason saw the driver remove a crowbar from
the vehicle, she called 911 to report this suspicious activity.5



11 Report of Proceedings (RP) (October 15, 2012, afternoon) at 75.
21 RP at 75-76, 81.
31 RP at 77.
41 RP at 77-78.
51 RP at 79.
No. 71661-1-1/2

       McMason then noticed the passenger of the vehicle—later identified as

Schlottmann—exit the minivan and, together with the driver, break into Finely's

residence through the front door.6 After approximately 10 minutes, Schlottmann

and the driver exited the residence.7 McMason noticed Schlottmann carrying a

stack of what appeared to be manila file folders.8 The driver was hauling a large

bag with items protruding from the inside.9 Schlottmann and the driver returned

to the vehicle and departed from the scene.10

       McMason relayed these observations to the 911 dispatcher as they

occurred.11 Over the telephone, McMason provided a detailed description of the

minivan, its license plate, and the driver and passenger.12

       Law enforcement officers subsequently arrived at McMason's residence.13

While they interviewed McMason, the Olympia Police Department stopped a dark

green Mazda with a license plate number identical to that which McMason had

previously provided.14 The police stopped the minivan approximately three miles

from the Finely residence.15 The driver of the vehicle was identified as Darlene

Lockard and the passenger was Schlottmann.16

       McMason thereafter identified both woman as the individuals she



61 RP at 79, 81-82.
7 1 RP at 83-84.
81 RP at 84.
91 RP at 84.
101 RP at 85.
11 1 RP at 80.
121 RP at 80-81.
131 RP at 87.
14 1 RP at 33-34, 91.
151 RP at 35-36.
161 RP at 35-36.
No. 71661-1-1/3

witnessed burglarize Finely's residence.17 After a search warrant was obtained,

Thurston County deputies searched the minivan and took an inventory of all of

the items discovered inside.18 The deputies recovered 48 stolen items.19 Among

them was a Savage .32 caliber pistol, a crowbar, a set of knives, a glass jar of

coins, a piece of paper with the words "The Dynamic Duo" written on it, and a

checkbook with checks containing the name "Japhet Bulkheading Incorporated,

Floyd or Grace Japhet."20 Finely identified 45 items stolen from her residence,

including the pistol.21 The knives, glass jar, and checkbook did not belong to

Finely.22

       The Thurston County Sherriffs office soon determined that Schlottmann

and Lockard were the perpetrators responsible for two other burglaries that took

place near Finely's residence.        On the same day as the Finely burglary,
Schlottmann and Lockard also burglarized Guy Winkleman's residence, located

approximately four miles away from Finely.23 Approximately $7,000 worth of
property had been stolen.24 On November 17, 2011, Lockard and Schlottmann
burglarized the residence of Donald and Lisa Japhet.25            Lockard and
Schlottmann stole several         items, including the   checkbook for Japhet




17 1 RP at 38, 92.
181 RPat41.
191 RP at 42.
201 RP at 41, 46, 48, 54.
21 1 RP at 43-46; 2 RP (October 16, 2012) at 170-71.
221 RP at 48, 54.
23 2 RP at 241, 245.
24 3 RP (October 17, 18, 19, 30, 2012) at 334.
25 2 RP at 197.
No. 71661-1-1/4

Bulkheading, a computer, a helmet camera, and some jewelry.26 The police

determined that a crowbar was used to break into the residence.27

      The State charged Schlottmann, by second amended information, with

first degree burglary while armed with a firearm (Count I); theft of a firearm

(Count II); second degree unlawful possession of a firearm (Count III); second

degree theft (Counts IV, VII, and XI); third degree malicious mischief (Count V);

first degree burglary (Count VI); second degree malicious mischief (Counts VIII

and X); residential burglary (Count IX); and second degree possession of stolen

property (Counts XII and XIII).28        Counts I, II, IV, and V were for crimes

committed against the Finely residence. Schlottmann pleaded not guilty to these

charges.29

       A jury trial was held on October 15 to October 19, 2012. The State

presented the testimony of numerous witnesses, including McMason, Finely,

Winkelman, Donald and Lisa Japhet, and several law enforcement officers

involved in the investigations.30

       Following trial, the jury convicted Schlottmann of first degree burglary

(Count I); theft of a firearm (Count II); theft in the second degree (Counts IV, VII,

and XI); third degree malicious mischief (Count V); residential burglary as a

lesser included charge (Count VI); malicious mischief in the second degree

(Counts VIII and X); residential burglary (Count IX); and possession of stolen


26 2 RP at 200-202
27 2 RP at 236-37.
28 Clerk's Papers (CP) at 34-37; 4 RP at 4-7; 3 RP at 316.
29 3 RP at 316-17.
301 RPat5, 32, 68, 72; 2 RP at 116, 151, 193, 209, 233; 3 RP at 295, 307, 328.
No. 71661-1-1/5

property in the second degree (Counts XII and XIII).31 The trial court imposed a

sentence of 96 months followed by 18 months of community custody.32

      Schlottmann appeals.

                                   ANALYSIS


Impartial Jury Claim

       Schlottmann first contends that the trial court violated her right to a fair

and impartial jury when, after voir dire, it denied her motion to dismiss a juror.

We disagree.

       The Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution guarantee the right to trial by an

impartial jury. State v. Latham. 100 Wn.2d 59, 62-63, 667 P.2d 56 (1983). RCW

2.36.110 and CrR 6.5 also protect the right to an impartial jury. While RCW

2.36.110 "provides the grounds for which the court may dismiss a juror," CrR 6.5
sets forth the procedures under which an excused juror is replaced. State v.

Depaz. 165 Wn.2d 842, 852, 204 P.3d 217 (2009); see also State v. Rafav, 168

Wn. App. 734, 821, 285 P.3d 83 (2012) ("RCW 2.36.110 governs the removal of
jurors."). Pursuant to RCW 2.36.110, a judge has a duty "to excuse from further
jury service any juror, who in the opinion of the judge, has manifested unfitness
as a juror by reason of bias, prejudice, ... or by reason of conduct or practices
incompatible with proper and efficient jury service." CrR 6.5 states, "If at any
time before submission of the case to the jury a juror is found unable to perform

the duties the court shall order the juror discharged." These provisions place the

31 CPat117.
32 CP at 122.
No. 71661-1-1/6

trial court under a continuous obligation to excuse a juror who is unfit and unable

to perform the duties of a juror. State v. Jorden. 103 Wn. App. 221, 226-27, 11

P.3d 866 (2000).

       The trial court's ability to observe a juror puts the trial court in the best

position to determine whether the juror can be fair and impartial. State v. Rupe,

108 Wn.2d 734, 749, 743 P.2d 210 (1987). Accordingly, we review for abuse of

discretion the trial court's decision to remove a juror.     Rafav. 168 Wn. App. at

821.    A trial court abuses its discretion when its decision is manifestly

unreasonable or based on untenable grounds. Depaz, 165 Wn.2d at 858.

       At the inception of voir dire, the trial court read each of the charges to the

venire.33 The trial court noted the date on which each charged crime took

place_November 17 or 18, 2011.34 The court then instructed the prospective

jurors: "You must not withhold information in order to be seated on this particular
jury. You should be straightforward in your answers and not just answer in a way

that you hope the lawyers or the court might hope or expect you to answer."35
       During voir dire, the trial court asked the prospective jurors: "Have any of

you personally had an experience that is similar to the type of incident or events

that were described to you? About what this case is about."36 At this time, the

venire had only been made aware of the State's charges against Schlottmann

and the dates the crimes allegedly took place. After a number of potential jurors

raised their hands, the trial court added, "[Wje're just trying to determine if it's too

33 4 RP (October 15, 2012, morning) at 4-7.
34 4 RP at 4-7.
35 4 RP at 9.
36 4 RP at 19.
No. 71661-1-1/7

close to something that maybe that you have some personal experience or

someone in your family close to you."37 The court proceeded to inquire further of

those jurors who raised their hands.38 Juror No. 1 did not raise his hand.39
        Defense counsel later addressed the venire:

               What [the trial court] wanted to know is specifically if these
        type of instances are either so fresh in your recollection or so fresh
        or that made such an impact on you that it would be -- interfere with
        your ability to listen to the evidence, interfere with your ability to
        give each side, both the prosecutor and the state, a fair trial.[40]
        After the jury was impaneled, trial counsel made opening arguments.

During the State's opening argument, the prosecutor provided more details to the
jury about the case.41 He reiterated that the case began in November, and
specified the neighborhoods and streets in which the crimes were alleged to
have occurred.42

        At the beginning of trial the next day, before the witnesses were called,
Juror No. 1 brought to the trial court's attention that his residence had been the
subject of an attempted burglary.43 He informed the court that he lived near
Finely's residence and that on November 10, 2011, his door had been damaged
by what he believed to be a crowbar.44 The prosecutor and defense counsel
were given the opportunity to question the juror about this incident.45 The


37 4   RP   at   19.
38 4   RP   at   19-22.
39 4   RP   at   19.
40 4   RP   at   49-50.
41 4   RP   at   90-97.
42 4 RP at 90-91, 93-94.
43 2 RP at 109.
44 2 RP at 109-12.
45 2 RP at 109-11.
No. 71661-1-1/8

prosecutor asked the juror whether he "could set that aside and just decide this

case based on the facts that are presented to [him] in court."46          The juror

answered affirmatively.47

       Defense counsel moved to excuse the juror.48 Defense counsel argued

that the similarities between the two cases were substantial and that had he been

aware of the juror's experience, he would have made a for cause or peremptory

challenge.49 The trial court denied the motion, concluding that no sufficient

showing had been made to excuse the juror.50 The court reasoned that "nothing
that [Juror No. 1] said . . . rises to the level of the other people who were excused

for cause who had similar experiences."51

       The trial court did not abuse its broad discretion by denying Schlottmann's

motion to excuse Juror No. 1. The mere fact that Juror No. 1 made mention of

the attempted burglary at the start of the second day of trial bolstered his
credibility and strongly suggested that he could serve as a fair juror.
       Moreover, during voir dire, the jury venire was not offered any specific
information regarding the charged crimes. Neither counsel nor the trial court
informed the venire of the location in which the charged crimes took place. The

parties also did not mention that the perpetrators employed a crowbar to break
into the residences. The only knowledge the venire had about the case was the
charged crimes and the alleged dates of those crimes. Then, after the jury was

46 2 RP at 111.
47 2 RP at 111.
48 2 RP at 113.
49 2 RP at 113-14.
502RPat115.
51 2 RP at 115.

                                          8
No. 71661-1-1/9


impaneled, the prosecutor offered more information about the crimes, including

the location in which one of the burglaries took place. It is reasonable to infer

that Juror No. 1 recognized the similarities between the charged crimes and the

attempted burglary of his residence once the prosecutor provided these details

during opening arguments.

       Furthermore, upon inquiry, Juror No. 1 expressed his belief that he could

set his experience aside and decide the case based upon the evidence produced

at trial. The trial court is in the best position to evaluate the juror's candor and

impartiality. State v. Elmore. 155 Wn.2d 758, 769 n.3, 123 P.3d 72 (2005). We

accept the trial court's discretion in determining that Juror No. 1 was not unfit to

serve. Schlottmann was not convicted by an unfair or partial jury.

Ineffective Assistance of Counsel Claim

       Schlottmann next contends that she was denied effective assistance of

counsel because defense counsel conceded guilt to several criminal counts. We

disagree.

       An accused's right to effective assistance of counsel derives from the

Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington State Constitution. State v. Grier. 171 Wn.2d 17, 32, 246 P.3d 1260

(2011) (citing Strickland v. Washington. 466 U.S. 668, 685-86, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); State v. Thomas. 109 Wn.2d 222, 229, 743 P.2d 816

(1987)).

       To prevail on a claim of ineffective assistance of counsel, Schlottmann

must prove deficient performance and resulting prejudice. State v. McFarland.
No. 71661-1-1/10

127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Schlottmann bears the burden

of overcoming "'a strong          presumption that counsel's performance was

reasonable.'" Grier. 171 Wn.2d at 33 (quoting State v. Kvllo. 166 Wn.2d 856,

862, 215 P.3d 177 (2009)).           Deficient performance exists where defense

counsel's representation "fell below an objective standard of reasonableness

based on consideration of all the circumstances." McFarland. 127 Wn.2d at 334-

35.

       If defense counsel's performance can be characterized as legitimate trial

strategy or tactics, performance is not deficient. Grier. 171 Wn.2d at 33. But "a

criminal defendant can 'rebut the presumption of reasonable performance by

demonstrating that 'there is no conceivable legitimate tactic explaining counsel's

performance.'"     Grier. 171 Wn.2d at 33 (quoting State v. Reichenbach. 153

Wn.2d 126, 130, 101 P.3d 80 (2004); State v. Aho. 137 Wn.2d 736, 745-46, 975

P.2d 512 (1999)).

       Schlottmann alleges that during opening arguments, defense counsel

admitted her guilt to all of the charges involving the Finely residence, including

first degree burglary. Schlottmann is mistaken. The record reflects that defense
counsel admitted to a lesser included crime of residential burglary.52 See RCW



52 To convict Schlottmann of Count I, first degree robbery, the jury was instructed to find
the following relevant elements beyond a reasonable doubt:
       (1) That on or about November 18, 2011, the defendant or an accomplice,
       entered or remained unlawfully in a building;
       (2) That the entering or remaining was with intent to commit a crime
       against a person or property therein;
       (3) That in so entering or while in the building, to wit: residence at Marian
       Finley [sic] or in immediate flight from the building the defendant or an
       accomplice in the crime charged was armed with a deadly weapon.

                                            10
No. 71661-1-1/11

9A.56.040; 9A.52.025. Defense counsel also admitted to second, degree theft

and third degree malicious mischief.

       The following excerpt from opening arguments is illustrative:

       But we'll tell you right up front they will be able to prove some of
       these charges, and some of the charges involving Ms. Finely's
       home.
             Yes, Ms. McMason was being a good neighbor. Ms.
       McMason, I think the evidence will even show, she brought out the
       binoculars so she could get the good information such as license
       plate number to the van and clothing descriptions, yes. And
       regrettably, Ms. Schlottmann used some very poor judgment, that's
       in fact criminal judgment, and that she went into a home where
       she should not have been, where she did not have permission
       to be inside, and she went with Darlene Lockard.
              . . . And yes, while inside Ms. Finely's house, many items
       were taken, but Ms. Schlottmann didn't have a right to, and
       we'll be up front about that.153]
       At closing argument, defense counsel again acknowledged, "Ms. Lockard
and Ms. Schlottmann did in fact go into Ms. Finely's house illegally without
permission and take items from the house."54 Defense counsel further stated,
"Certainly she [was an accomplice] in the burglary of Ms. Finely's home.
Certainly she did that with the stealing of many expensive items."55
        Defense counsel also conceded Schlottmann's guilt to malicious mischief


        CP at 76.
To convict Schlottmann of residential burglary as a lesser degree of first degree
burglary, the jury was instructed to find the following relevant elements beyond a
reasonable doubt:
        (1) That on or about November 18, 2011, the defendant, or an
        accomplice, entered or remained unlawfully in a dwelling, to wit:
        residence of Marian Finley [sic];
        (2) That the entering or remaining was with intent to commit a crime
        against a person or property therein.
        CP at 78.
53 4 RP at 97-99 (emphasis added).
 54 3 RP at 408.
 55 3 RP at 409-10.

                                            11
No. 71661-1-1/12

in the third degree, for damaging Finely's door.56

         Accordingly, in total, trial counsel conceded guilt to three offenses: third

degree malicious mischief, second degree theft, and residential burglary, a lesser

included offense to first degree burglary.

         Notwithstanding these concessions, defense counsel vigorously defended
Schlottmann on the remaining counts, including the crime of first degree robbery

while armed with a firearm. Defense counsel denied that Schlottmann either took

a weapon or knew that a weapon had been stolen and argued that, therefore,
Schlottmann could not be found guilty as an accomplice to the charges oftheft of
a firearm or first degree burglary.57 Counsel expressly indicated that "given the
absence of proof, it would be inappropriate to find her guilty of theft of a firearm
and inappropriate to find her guilty of the more serious offense of burglary in the
first degree."58 Defense counsel further noted, "[The] burglary was a residential
burglary because the [S]tate has not proven beyond a reasonable doubt that the
weapon used there was being used as defined by the definition as a deadly
weapon."59 Defense counsel additionally denied all the remaining counts related
to the Japhet and Winkelman residences.60
             Furthermore, contrary to Schlottmann's contention, it is evident that
defense counsel's concessions were a trial tactic aimed at enhancing
Schlottmann's credibility in order to avoid convictions on the remaining charges,


 56 3 RP at 410-11,413-14.
 57 3   RP   at   408-13.
 58 3   RP   at   410.
 59 3   RP   at   413.
 60 3   RP   at   414-25.

                                             12
No. 71661-1-1/13

particularly first degree burglary while armed with a firearm.       In light of the

overwhelming evidence, this strategy was reasonable.

      Conceding guilt on a particular count can be a sound trial tactic when the

evidence on that count is overwhelming. State v. Silva. 106 Wn. App. 586, 596,

24 P.3d 477, review denied. 145 Wn.2d 1012 (2001). This approach may win the

jury's confidence and preserve the defendant's credibility when a more serious
charge is at stake. State v. Hermann, 138 Wn. App. 596, 605, 158 P.3d 96
(2007); Silva. 106 Wn. App. at 597-98. Defense counsel is not required to
consult with the client before making this strategic move. Silva. 106 Wn. App. at

596 (citing Underwood v. Clark. 939 F.2d 473, 474 (7th Cir.1991)).
       Here, Schlottmann makes no effort to contend that the evidence of her
guilt as to the conceded charges was not overwhelming. Nor could she do so
convincingly. At trial, the State presented the following evidence: an eyewitness
who observed the burglary, provided the police a detailed description of the
suspects and the vehicle, and later identified the suspects shortly after the crime;
evidence that the vehicle and physical characteristics of suspects matched the
eyewitness's description; evidence that the items recovered in the minivan were
identified as belonging to Finely; evidence that the minivan identified by the
eyewitness was stopped in close proximity to Finely's residence. The State's
evidence pertaining to the crimes against the Finely residence was immense.
Defense counsel's decision to admit to these crimes was a strategic one
intended to earn the jury's favor and preserve Schlottmann's credibility as to the
 remaining charges. Accordingly, Schlottmann's claim fails.

                                         13
No. 71661-1-1/14

Prosecutorial Misconduct Claim

      Schlottmann contends, finally, that three of the prosecutor's remarks made

during closing argument deprived her of a fair trial. Again, we disagree.

      A prosecutor owes a defendant a duty to ensure the right to a fair trial is

not violated. State v. Monday. 171 Wn.2d 667, 676, 257 P.3d 551 (2011). A

defendant claiming prosecutorial misconduct bears the burden of demonstrating

that the challenged conduct was both improper and resulted in prejudice. State
v. Cheatam. 150 Wn.2d 626, 652, 81 P.3d 830 (2003).            We review alleged

misconduct "within the context of the prosecutor's entire argument, the issues in

the case, the evidence discussed in the argument, and the jury instructions."

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

       Once a defendant establishes that the prosecutor's conduct was improper,

a reviewing court determines whether the defendant was prejudiced. State v.
Emery. 174 Wn.2d 741, 760, 278 P.3d 653 (2012). If the defendant objected at

trial, on appeal he orshe "must show that the prosecutor's misconduct resulted in
prejudice that had a substantial likelihood of affecting the jury's verdict." Emery,
174Wn.2dat760.

       Following closing arguments, defense counsel moved for a mistrial based
upon the prosecutor's comments that she now challenges on appeal.61 The trial
court denied the motion.62 "The decision to deny a request for mistrial based

upon alleged prosecutorial misconduct lies within the sound discretion of the trial


61 3 RP at 439.
62 3 RP at 442.

                                         14
No. 71661-1-1/15

court, and it will not be disturbed absent an abuse of discretion." State v.

Russell. 125 Wn.2d 24, 86, 882 P.2d 747 (1994).

      At closing argument, while reviewing the evidence surrounding the Finely

burglary, the prosecutor made the following comment:

      They took similar items. They want jewelry, electronics, and they
      wanted that checkbook. Why do people burglarize houses? I
      mean, this probably isn't too hard of a concept. They want drugs
      and they want money. And money equals drugs or drugs
      equals money, one of the two. And they want things that they
      can sell quickly-.[63]

       Defense counsel objected to this comment, arguing that it was

inflammatory.64 The trial court held a sidebar, after which the court instructed the

prosecutor to "[g]o ahead."65
       Schlottmann contends that by making this remark, the prosecutor

improperly referenced evidence outside of the record and prejudicially implied
that Schlottmann burglarized homes in order to purchase drugs.

       A prosecutor is allowed wide latitude in closing arguments to draw
reasonable inferences from the facts in evidence and to express such inferences

to the jury. State v. Gregory. 158 Wn.2d 759, 860, 147 P.2d 1201 (2006);
Dhaliwal. 150 Wn.2d at 577.        But a prosecutor is not permitted to make

prejudicial statements that are not supported by the record. State v. Ramos. 164
Wn. App. 327, 341, 263 P.3d 1268 (2011). Similarly, "[m]ere appeals to the jury's
passion or prejudice are improper." Gregory. 158Wn.2d at 808.
       Here, the prosecutor improperly appealed to the jury's passion and

63 3 RP at 396 (emphasis added).
64 3 RP at 396.
65 3 RP at 396.

                                         15
No. 71661-1-1/16

prejudice. The prosecutor's remark was designed to portray Schlottmann as a

drug user or addict whose motive in the burglaries was to procure drugs. There

was no evidence presented to the jury that established such a motive. This

comment exceeded the wide latitude granted to prosecutors in closing argument.

      Nevertheless, Schlottmann does not demonstrate that the prosecutor's

comment substantially affected the jury verdict. The remark was made in the
context of a prolonged trial as well as a lengthy closing argument. A sidebar was

immediately held following this comment, after which the prosecutor did not
mention the alleged drug related motive again.        Additionally, the jury was
instructed to "decide the facts in this case based upon the evidence presented."66
The jury was also directed "that the lawyers' statements are not evidence. The
evidence is the testimony and the exhibits."67 We presume that jurors follow
instructions to disregard improper evidence. State v. Russell. 125 Wn.2d 24, 84,
882 P.2d 747 (1994).

       Schlottmann has not shown prejudice as a result of the prosecutor's

improper comment.       Accordingly, the trial court did not err in denying
Schlottmann's motion for mistrial with respect to this comment.

       Schlottmann next contends that the prosecutor committed misconduct by

making the following remarks during closing argument: "Again, Ms. Lockard and
Schlottmann are two burglars and thieves with no conscience."68 In rebuttal, the



66 CP at 55.
67 CP at 56.
68 3 RP at 401.

                                        16
No. 71661-1-1/17

prosecutor stated that "[Schlottmann] wanted to victimize other people."69
Schlottmann did not object to these remarks.70

      Schlottmann contends that the prosecutor injected his own opinion as to

Schlottmann's motives for committing the crimes, which were outside of the

record. She is incorrect. These statements were proper inferences based on the

evidence produced at trial.

       Even assuming that the comments were improper, Schlottmann fails to

establish prejudice. She makes no effort to show that there was a substantial
likelihood that the prosecutor's comments affected the jury's verdict. Therefore,

we find no error as to these comments.

       Schlottmann next challenges the following comments made by the

prosecutor:

       Now let's talk about circumstantial evidence. The best evidence
       that we have is that we already know what they are.          They're
       burglars and thieves. How do we know that? Ms. McMason.
       Eyewitness. Saw them do it. [Defense counsel] says well -- he told
       you at the beginning of the case, well, she doesn't contest that.
       Really? If she's not contesting it, why are we here talking about
       those particular charges? She never pled guilty to those charges.
       You still have to find her guilty of those charges, don't you? That's
       one of your jobs. It's what the court has instructed you to do. She
       didn't take responsibility for it. She's going to try to now --t71i
       After a sidebar was held, defense counsel noted his objection for the

record.72     In his rebuttal argument, the prosecutor stated: "Again, Ms.
Schlottmann surrounds herself with these things, but she wants to deny all of


69 3 RP at 432.
70 See 3 RP at 401, 432.
71 3 RP at 400.
72 3 RP at 400-01.

                                         17
No. 71661-1-1/18

them. As I said, she's never taken responsibility for any of it."73 Defense counsel

objected, and the court ordered the prosecutor to proceed.74 The prosecutor

resumed, "She's never taken responsibility for any of these crimes, but for

[defense counsel] doing that for her now. But again, she wants to limit what her

responsibility is, for obvious reasons."75
       Schlottmann argues that the prosecutor improperly commented on her

constitutional right to plead not guilty, as well as her right against self-
incrimination and right to present a defense.

       "[T]he State can take no action which will unnecessarily 'chill' or penalize
the assertion of a constitutional right and the State may not draw adverse

inferences from the exercise of a constitutional right." Gregory, 158 Wn.2d at

806 (quoting State v. Rupe. 101 Wn.2d 664, 705, 683 P.2d 571 (1984)).
Specifically, the State may not invite the jury to draw a negative inference from
the defendant's exercise of a constitutional right. Gregory. 158 Wn.2d at 806

(citing State v. Jones. 71 Wn. App. 798, 811-12, 863 P.2d 85 (1993)). But "not
all arguments touching upon a defendant's constitutional rights are impermissible
comments on the exercise of those rights." Gregory. 158 Wn.2d at 806. The
question is whether the prosecutor "manifestly intended the remarks to be a
comment on that right." State v. Crane. 116 Wn.2d 315, 331, 804 P.2d 10
(1991).

          Here, viewing these statements in the context of the entire record, the


73 3 RP at 433.
74 3 RP at 433.
75 3 RP at 433.

                                             18
No. 71661-1-1/19

prosecutor's remarks were not intended to comment on Schlottmann's

constitutional rights. Indeed, the comments were invited by defense counsel's

opening argument. As previously discussed, defense counsel conceded guilt to

the lesser offense of residential burglary, and admitted that the State would be

able to prove many of the charges. The prosecutor's comments did not expand

beyond the scope of defense counsel's statements. See State v. Dennison. 72
Wn.2d 842, 849, 435 P.2d 526 (1967) (A prosecutor's remarks do not constitute

misconduct if they are invited by defense counsel unless they "'go beyond a
pertinent reply.'") (quoting State v. LaPorte. 58 Wn.2d 816, 822, 365 P.2d 24
(1961)).

       Schlottmann's prosecutorial misconduct claims are not persuasive. The
trial court did not abuse its discretion in denying her motion for mistrial.

       Affirmed.




                                                       J/: c^e -(yA
WE CONCUR:




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