                                                                                                  FILE!)
                                                                                             COURT OF APPEALS
                                                                                                  DIVISIONIJ

                                                                                            2014 DEC 30     AM 9: ti 6
                                                                                            STATE OF WASHINGTON

                                                                                            BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

 STATE OF WASHINGTON,                                                                   No. 44642 -1 - II


                                         Respondent,


          v.




 JESSE JAMES CLARK,                                                             UNPUBLISHED OPINION.


                                         Appellant.




         LEE, J. —    A jury found Jesse James Clark guilty of second degree possession of stolen

property, first degree      extortion, and    four     counts of    bail   jumping. Clark appeals, arguing that ( 1)

his   convictions   for bail   jumping     violate     double    jeopardy, ( 2) his convictions for second degree

possession of stolen property and second degree extortion violate double jeopardy, (3) insufficient

evidence    supports   the     jury' s   verdicts    finding     him guilty     of   bail   jumping, ( 4)   the prosecutor


committed       misconduct       during     closing         arguments, (   5)   the accomplice liability statute is

unconstitutional, (    6)    the trial court improperly calculated his offender score because his

convictions for possession of stolen property and extortion were the same criminal conduct, and

 7) he received ineffective assistance of counsel because his counsel failed to argue same criminal

conduct at     sentencing. Clark' s      claims     fail,   and we affirm.
No. 44642 -1 - II



                                                         FACTS


         On October 4, 2011, Jennifer Thomas was at home with her daughter. An acquaintance of

Thomas',     Rose Folsom, came to the house to pick up some items that Thomas had bought for

Folsom' s baby. While Folsom was bringing the baby items to her car, Thomas received a phone

call. Folsom,left while Thomas was on the phone.


         A   short   time   after   Folsom left, Thomas       realized   that her   bulldog,   Jagger,   was   missing.   1


Thomas began searching for Jagger.                  She put fliers up throughout the area, and she contacted

newspapers and other media.             On October 8, 2011, Thomas received a series of text messages


demanding     pain medication and $         1, 000 for Jagger' s return. And the text messages stated that, if


Thomas did not give the thieves the drugs and money, Jagger would be tortured and killed. In one

text message, the thieves told Thomas that, if she did not comply, Jagger would be cut up. Thomas

also received pictures of Jagger tied up.

         Thomas informed the           sheriff' s   office   about   the text   messages.   Cowlitz County Sheriff' s

Detective Sergeant Bradley Thurman coordinated an undercover operation in which they posed as

Thomas and arranged to meet the thieves to exchange the drugs and money for Jagger' s safe return.

The sheriffs used Thomas' car and waited for the thieves on a road right outside the Three Rivers

Golf Course. At one point, the deputies saw a light colored pickup truck with a barrel in the back.

However, when the other deputies in marked vehicles were sent to intercept the truck, they were

unable   to locate it.      The deputies did        not make contact with         the thieves.    Several weeks later,


Jagger' s decapitated body was discovered by the train tracks on the edge of the golf course.

         The deputies identified Folsom, Folsom' s boyfriend Johnny Jordan, and Clark as potential

suspects. On October 17, Deputy Danny O' Neill spoke to Clark, but he denied ever having Jagger


                                                               2
No. 44642 -1 - II



on his property. On November 1, deputies served a search warrant at Jordan' s house. They found
a notebook with Jagger' s name written on it and one ofthe fliers Thomas posted in Jordan' s pocket.

The deputies      also   found    what appeared            to be bloodstains in the interior        of   Folsom'   s car.   On


October 26, deputies       executed a search warrant at                Clark'   s   home.   They found rope matching the

rope in the pictures the thieves texted to Thomas. They also found a makeshift shelter made with

a child' s toy desk in Clark' s yard, and dog hair on the futon in Clark' s house. Clark' s white Toyota

pickup truck had bloodstains on the interior and barrels of paint or solvent in the back.
        The State charged Clark with first degree extortion and second degree possession of stolen


property.   On February 2, 2012, the trial court ordered Clark to appear for a pretrial hearing on

March 27 and a trial date on April 23. When Clark appeared for his hearing on March 27, the trial

court ordered     him to   appear      for    another pretrial      hearing     on   April 19.   Clark failed to appear on


April 19,   and   he failed to    appear      for trial   on   April 23. The trial court issued a bench warrant after


Clark failed to appear at his April 19 pretrial hearing, and Clark was later arrested on that warrant.

         When Clark again appeared before the trial court on May 29, 2012, the trial court ordered

Clark to appear for a pretrial hearing on June 19 and for trial on August 6. Clark appeared on June

19, at which time the trial court ordered him to appear for another pretrial hearing on August 2.

Clark failed to appear for the August 2 pretrial hearing and the August 6 trial date. Another bench

warrant was issued after Clark failed to appear at the August 2 pretrial hearing. The State charged

Clark with four counts of bail jumping for failing to appear on April 19, April 23, August 2 and

August 6 as ordered by the court.

         The   case went     to    a   jury   trial   on   February     26, 2013.       At trial, the State presented Lori


Vanderhoff' s testimony. Vanderhoff was a close friend of Clark' s and was staying with him during


                                                                   3
No. 44642 -1 - II



October 2011.       She testified that   during    that time, Clark         was not   sleeping.     Around October 4,


Vanderhoff saw Jagger on the front seat of Clark' s truck, bleeding. Clark told Vanderhoff that he

was watching Jagger for a friend. Later, Vanderhoff saw Jagger tied up outside the house near a

shelter made out of a child' s play school desk. While Jagger was at the house, Vanderhoff became

concerned about Clark' s behavior and became fearful of him. A few days later, Jagger was gone.

When Vanderhoff asked about Jagger, Clark told her that she did not need to worry about Jagger

anymore.    And, he told her that he " beat the       shit out of    that   fucking d —."     2 Report of Proceedings


 RP) at 275. Vanderhoff moved the next day.

          Dmitry Powers, Clark' s neighbor, also saw Jagger tied up in front of Clark' s house. Clark

told Powers that he bought Jagger. A couple days later, Jagger was no longer at the house. Clark

told Powers that he " beat the crap      out of    the   dog."     3 RP at 356.


          Staci Myklebust, a Cowlitz County Superior Court clerk, testified that the trial court always

                                                                                                    in            If the trial
verbally informs defendants                 date         time                         to
                                      the                                                  appear        court.
                                 of                and           they   are ordered




court    forgets to inform the defendant, the            prosecutor      will   remind     the trial     court.   When the


defendant is notified of the date and time of their required court appearances, the court clerk will


check off the box on the clerk' s minutes indicating that the defendant was ordered to appear. The

State introduced the clerk' s minutes from the dates Clark was ordered to appear and the clerk' s

minutes from the dates Clark failed to appear.


          During closing argument, the State argued that Clark knew the dog was stolen because he

gave inconsistent stories about how he got the dog. The State also argued that Clark did not care

for Jagger the way a person would care for his or her pet. And, the State argued that Clark was

         of extortion as an accomplice.       In   addition   to   hiding   Jagger, the State    argued     that Clark took
guilty
No. 44642 -1 - II



the pictures that were sent to Thomas because the pictures showed Jagger tied up with the rope

found at Clark' s house. Clark either went to the area to perform the exchange, or let Folsom and

Jordan use his truck to make the exchange. And, the State argued that, because of his statements

to Vanderhoff and Powers, the jury could infer that Clark beat and killed Jagger and then dumped

his body at the railroad tracks.

         The jury found Clark guilty of extortion, second degree possession of stolen property, and

four   counts of    bail   jumping. The trial court calculated Clark' s offender score at 5 and imposed

standard range sentences. Clark appeals.

                                                           ANALYSIS


A.       DOUBLE JEOPARDY


         The United States          and     Washington Constitutions      prohibit   double     jeopardy. U.S. CONST.

amend.   V; WASH. CONST.             art   1, §   9.   This court reviews alleged violations of double jeopardy de

novo.     State    v.   Villanueva- Gonzalez, 180 Wn.2d 975, 979 -80, 329 P. 3d 78 ( 2014). "                         The


prohibition on double jeopardy generally means that a person cannot be prosecuted for the same

offense after being acquitted, be prosecuted for the same offense after being convicted, or receive

multiple punishments           for the      same offense."       Villanueva -Gonzalez, 180 Wn.2d         at   980.   While


Clark alleges a constitutional error, determining whether Clark' s convictions constitute multiple

punishments for the same offense requires determination of legislative intent and presents a

question of     statutory interpretation. Villanueva- Gonzalez, 180 Wn.2d                  at   980. " The legislature is


                                           offenses, and the     prohibition on   double   jeopardy   imposes [ flew, if
tasked   with   defining     criminal




 any, limitations'      on   that   power."        Villanueva- Gonzalez, 180 Wn.2d at 980 ( quoting Sanabria v.

 United States, 437 U.S. 54, 69, 98 S. Ct. 2170, 57 L. Ed. 2d 43 ( 1978)).



                                                                 5
No. 44642 -1 - II



         There are two tests that are employed to determine whether multiple convictions violate

double   jeopardy by imposing            multiple punishments             for the   same offense.     Villanueva- Gonzalez,


180 Wn. 2d    at   980 -81:     As our Supreme Court recently explained:

         The "     unit   of    prosecution"         analysis applies when a defendant has multiple
         convictions under the same statutory provision, and it asks " what act or course of
         conduct     has the Legislature defined               as   the   punishable   act." [   State v. Adel, 136
         Wn.2d 629, 634, 965 P. 2d 1072 ( 1998)].                    The "[ Blockburger v. United States, 284
         U. S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 2d 306 ( 1932)]"                       analysis applies when a

         defendant has          convictions          under    different    statutes,   and it asks whether the
         convictions were        " the   same   in law       and   in fact." [ Adel, 136 Wn.2d at 632 -33].


Villanueva -Gonzalez, 180 Wn.2d at 980 -81.


         1.         Unit   of   Prosecution— Bail         Jumping

         Clark argues that his multiple convictions for bail jumping violate double jeopardy. Under

the unit of prosecution test, we employ principles of statutory construction to determine what the

legislature intended as the punishable act. State v. Turner, 102 Wn. App. 202, 206, 6 P. 3d 1226

 2000) ( citing Adel, 136 Wn.2d                 at    634),   review      denied, 143 Wn.2d 1009 ( 2001). "[            I] f the


legislature fails to define the unit of prosecution or its intent is unclear, under the rule of lenity,

any ambiguity       must   be ` resolved   against      turning     a single   transaction into   multiple offenses.'    State

v.   Tvedt, 153 Wn.2d 705, 711, 107 P. 3d 728 ( 2005) ( quoting Adel, 136 Wn.2d                            at   635) ( internal


quotations marks omitted).



         Under RCW 9A.76. 170( 1):

         Any person having been released by court order or admitted to baiLwith knowledge
         of the requirement of a subsequent personal appearance before any court of this
         state, or ofthe requirement to report to a correctional facility for service of sentence,
         and who fails to appear or who fails to surrender for service of sentence as required
         is guilty of bail jumping.




                                                                     6
No. 44642 -1 - II



Based on the statutory language the unit of prosecution for bail jumping could be defined as either

violating the court order releasing the defendant or the defendant' s failure to appear on a specific

date.


         In State     v.   O' Brien, 164 Wn.       App.    924, 267 P. 3d 422 ( 2011), Division One of this court


determined that the bail jumping statute was ambiguous regarding the unit of prosecution and,

thus, must be interpreted in favor of the defendant. In O' Brien, the defendant was released under

four court orders, in four different cases, that all required him to report to the jail on the same date

and   time.    164 Wn.      App.   at    927.   The defendant failed to report to jail as ordered, and the State


charged him with four counts of bail jumping. O' Brien, 164 Wn. App. at 927. The court observed

that " the statute is ambiguous as to whether the legislature intended to punish the single failure to

appear or     the   violations of multiple court orders."           O' Brien, 164 Wn.   App.   at   929 -30.   Applying

the rule of lenity to the specific facts of the case, the court determined that the unit of prosecution

in the case was the defendant' s single failure to report rather than the violation of four separate

court orders.       O' Brien, 164 Wn.       App.   at   930, 932 -33.   However, the O' Brien court was clear that


its decision was based on the specific facts of the case; it did not determine that, as a matter of law,

the failure to      appear was     the   unit of prosecution    for bail   jumping. 164 Wn. App. 930, 932 -33.

         We presume that the legislature knows the existing state of case law. Woodson v. State, 95

Wn.2d 257, 262, 623 P. 2d 683 ( 1980). Therefore, we presume that the legislature is aware that an


ambiguity     exists within     the bail    jumping     statute —   an ambiguity that must be resolved in favor of

the defendant based on the facts of each case. Yet, the legislature has declined to take any action

to clarify the       unit of prosecution        for bail   jumping. Accordingly, we apply the same analysis

employed in O' Brien to Clark' s case. Here, Clark violated four separate orders from the court to



                                                                7
No. 44642 -1 - II



appear on       four   separate court   dates. Therefore, regardless of whether the unit of prosecution is


based on the number of court orders Clark violated or the number of times Clark failed to appear,

the State could have charged Clark with four counts of bail jumping.

             As to the two April bail jumping convictions, the clerk' s minutes from February 2,

demonstrate that the trial court ordered Clark to appear for a pretrial hearing on March 27 and for

trial   on   April 23.   When Clark appeared on March 27, the clerk' s minutes show that the trial court


ordered Clark to appear on April 19 for another pretrial hearing, but the clerk' s minutes do not

reference      the April 23 date.       Clark failed to appear on April 19 as ordered by the trial court on

March 27, and he failed to appear for trial on April 23 as ordered by the trial court on February 2.

Clark    violated      two   separate   court orders    each    time he failed to   appear   in April.   Therefore,


regardless of whether the unit of prosecution is based on the failure to appear or on court orders,


Clark' s two convictions for bail jumping based on his two failures to appear in April do not violate

double jeopardy.

             Similarly, on May 29, the clerk' s minutes show that the trial court ordered Clark to appear

for a pretrial hearing on June 19 and for trial on August 6. When Clark appeared on June 19, the

clerk' s minutes indicate that Clark was ordered to appear for another pretrial hearing on August 2,

but the clerk' s minutes do not specifically reference the August 6 trial date. Clark failed to appear

for the August 2 pretrial hearing as ordered by the trial court on June 19, and he failed to appear

for trial     on   August 6   as ordered   by   the trial   court on   May 29. Like the April hearing dates, each

time Clark failed to appear in August, he was violating a separate court order. Therefore, neither

of Clark' s convictions for the bail jumping charges for the August court dates violate double

jeopardy.



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No. 44642 -1 - II



          2.           Same Evidence Test -               Extortion and Possession of Stolen Property

              Clark also argues that his convictions for extortion and possession of stolen property violate

double jeopardy under the " same evidence" test. Br. of Appellant at 18 -20. 1 Our Supreme Court
has stated that:


                       Under the same evidence rule, if each offense contains elements not
              contained in the other offense, the offenses are different and multiple convictions
              can stand. [     State   v.   Baldwin, 150 Wn.2d 448, 454, 78 P. 3d 1005 ( 2003)].                         The test
              requires   the   court    to determine "' whether each provision requires proof of a fact
              which    the   other   does    not.'" [   Baldwin, 150 Wn.2d                  at   455] (   quoting Blockburger v.
              United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 ( 1932)).

State    v.   Jackman, 156 Wn. 2d 736, 747, 132 P. 3d 136 ( 2006) ( internal footnote                                   omitted).   Clark


alleges that his convictions for possession of stolen property and extortion violate double jeopardy

because " the evidence necessary to convict Mr. Clark of extortion was also sufficient to convict

him     of possession of stolen             property."     Br. of Appellant at 20.

              It is undisputed that the elements of possession of stolen property and the elements of

                                                                          2, .          3
extortion        are   different.      RCW 9A. 56. 160( 1)(          a)          110.       However, Clark relies on In re Pers.


Restraint of Orange, 152 Wn.2d 795, 100 P. 3d 291 ( 2004), to argue that his convictions violate


double        jeopardy       because both      convictions are predicated on                     the   same act —   keeping Jagger at his



1 There is a four -part framework employed when analyzing whether convictions for two offenses
violate        jeopardy. State v. Freeman, 153 Wn.2d 765, 765, 771 -73, 108 P. 3d 753 ( 2005).
              double
However, Clark limits his argument and analysis to the same evidence test, therefore we decline
to address the other tests for determining whether two convictions violate double jeopardy. RAP
10. 3( a)( 6).

2
    A   person    is guilty    of possessing stolen         property in the         second         degree if: (1)   he possesses property
that (2) he knows is stolen and ( 3) the property is worth more than $750.

3
    A    person     is guilty     of extortion          if he ( 1)   obtains or attempts to obtain ( 2) property by ( 3)
threatening the owner of the property.


                                                                          9
No. 44642 -1 - II



house.   In Orange, the defendant was convicted of both first degree assault and first degree

attempted murder    based   on   shooting the   victim.   152 Wn.2d   at   803. Our Supreme Court held that


the defendant' s convictions violated double jeopardy because the evidence used to convict the

defendant of first degree attempted murder necessarily proved that the defendant committed first

degree assault. Orange, 152 Wn.2d at 820. Clark argues that same situation exists here; the State


proved that Clark was guilty of extortion because he kept Jagger at his house. And, this evidence

necessarily proved that Clark was guilty of possession of stolen property. We disagree.

         The State did not simply prove that Clark was an accomplice to the extortion plan because

he held Jagger hostage.     The State proved that Clark committed possession of stolen property by

proving that Jagger was at Clark' s house and that Clark knew he was stolen because of how he
treated Jagger. While the State relied in part on the evidence that Jagger was in Clark' s house to

prove Clark committed extortion, the State also relied on other evidence to prove that Clark was

guilty of extortion. The State proved that Clark took the pictures that were used in the ransom text

messages; the State proved that Clark beat and killed Jagger and then disposed of Jagger' s body

on the railroad tracks; and the State proved that Clark' s truck was used to attempt to exchange

Jagger for the ransom. There were numerous acts on which the State based the extortion charge,


at least three of which were not limited to Clark keeping Jagger at his house. Accordingly, Clark' s

convictions for possession of stolen property and extortion do not violate double jeopardy under

the same evidence test.


B.       SUFFICIENCY   OF THE     EVIDENCE -     BAIL JUMPING


          The test for determining the sufficiency of the evidence is whether, after viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found guilt



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No. 44642 -1 - II



beyond      a reasonable   doubt."      State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " A


claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably

can    be drawn therefrom."           Salinas, 119 Wn.2d            at.   201.   All " reasonable inferences from the


evidence must be drawn in favor of the State and interpreted most strongly against the defendant."

Salinas, 119 Wn.2d        at   201.   Circumstantial and direct evidence are deemed equally reliable. State

v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). "                  Credibility determinations are for the trier

of   fact   and cannot   be reviewed     on appeal."        State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d 850


 1990).


            Clark argues that there was insufficient evidence to support his convictions for bail jumping

because ( 1) the State did not prove that Clark was aware of the exact time he was required to

appear and ( 2) the State did not prove exactly what time Clark failed to appear at court. There was

sufficient evidence to support the jury' s verdicts finding Clark guilty of all four counts of bail

jumping; therefore, Clark' s arguments lack merit.

            As noted above, under RCW 9A.76. 170( 1),


            Any person having been released by court order or admitted to bail with knowledge
            of the requirement of a subsequent personal appearance before any court of this
            state, or ofthe requirement to report to a correctional facility for service of sentence,
            and who fails to appear or who fails to surrender for service of sentence as required
            is guilty of bail jumping.

The State must prove that the defendant had notice of the required court date. State v. Cardwell,

 155 Wn.     App.   41, 47, 226 P. 3d 243 ( 2010).          And, under State v. Coleman, 155 Wn. App. 95'1, 964,

231 P. 3d 212 ( 2010),          review   denied, 170 Wn.2d 1016 ( 2011), the State must prove that the


defendant failed to       appear at    the time      he   was ordered      to appear.   In Coleman, the defendant was


ordered to appear at 9: 00 AM, and the State presented evidence that, at 8: 30 AM, the court clerk



                                                               11
No. 44642 -1 - II



noted   that the   hearing had been         stricken and    the court   had issued   a   bench   warrant.    155 Wn. App.

at 963 -64. The court determined that there was insufficient evidence because the clerk' s minutes

did not indicate that the defendant failed to appear at 9: 00 AM as ordered. Coleman, 155 Wn. App.

at 964.


          First, Clark argues that there was insufficient evidence to support his convictions for bail

jumping because the State did not present sufficient evidence to prove that Clark knew about the
date   and   time that he      was required      to appear.   Clark relies on United States v. Lo, 231 F. 3d 471


 9th Cir. 2000),          to argue that testimony regarding the routine practice of the trial court was

insufficient to prove that Clark was given notice of the court date. However, Lo does not support

Clark' s contention. In Lo, the court determined that the testimony in that case was insufficient to

establish a routine practice that proved mail fraud. In Lo, the jury would have had to infer that the

mortgage company created a particular document, and then started the process that resulted in

mailing the document; and, the court determined that this chain of events was too tenuous to

present sufficient of evidence of mail              fraud. 231 F.3d      at   476. The court recognized that, as the


chain of inference based on usual practices gets longer, the probability that nothing went wrong in

administering those            practices    lessens. "    At some point, a reasonable doubt arises concerning

whether, as    Murphy' s        Law   predicts,   that   which can go   wrong did    go   wrong." Lo, 231 F.3d at 477.


          Here, there is only         one   inference that the   jury   was required      to    make —that   the trial court


followed its usual practice and notified Clark of the court date when it was set. The likelihood of


something going wrong when the trial court ordered Clark to appear at his court dates is not a chain

of events     that   is   so   tenuous as to be insufficient        as a matter of       law.    Accordingly, the clerk' s

testimony that it was the trial court' s routine practice to inform the defendant of the date and time


                                                               12
No. 44642 -1 - II



of his court date was sufficient evidence to prove that Clark was notified of the date and time he

was required to appear.


          Second, Clark argues that the State failed to present sufficient evidence to prove that Clark

failed to appear at the ordered time. Here, the State presented testimony from the clerks who were

in    court on   the   days that Clark       was required     to    appear.     The clerks testified that Clark did not


appear at court. And, the State introduced the bench warrants that were issued after Clark failed

to    appear.    Contrary to Clark' s assertion, Coleman does not require that the State present direct

evidence    that Clark      was not    in the    court at     exactly 9: 00      AM.   Rather, in Coleman, the clerk' s


minutes that established the defendant failed to appear were entered before the time the defendant

was ordered to appear. 155 Wn. App. at 963.

          Here, the evidence showed that Clark failed to appear at the time he was ordered to appear.

For the    pretrial readiness      hearing dates ( April 19            and   August 2), the clerks who were present in


court on these dates testified that pretrial hearings start at 9 AM and that the trial court informs

defendants that        pretrial   hearings   start at   9   AM.    The bench warrants for Clark' s failure to appear


for his pretrial readiness hearings were issued at 11: 29 AM for the April 19 hearing date and at 2: 47

PM    for the August 2 prehearing date. Therefore, the State presented sufficient evidence to prove


that Clark did not appear at court when ordered to do so. As for the trial dates (April 23 and August

6),   the clerks testified that trials are scheduled to begin at 8: 30 AM and that the, trial court informs

defendants that trials start at 8: 30 AM. The clerk' s minutes for April 23 show that Clark was not

present at court at 8: 52 AM, after the time he was ordered to appear. And, the clerk' s minutes for

August 6 show that Clark was not at court at 8: 57 AM, after he was ordered to appear. Accordingly,




                                                                  13
No. 44642 -1 - II



there was sufficient evidence to show that Clark failed to appear at the time he was ordered to

appear.4

C.      PROSECUTORIAL MISCONDUCT


        To prevail on a claim of prosecutorial misconduct, Clark must show that the prosecutor' s

conduct was      both improper     and prejudicial.   State v. Emery, 174 Wn.2d 741, 756, 278 P. 3d 653

 2012) ( citing State     v.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011)).              First, we must


determine that the prosecutor' s conduct was improper. Emery, 174 Wn.2d at 759. If we determine

that the prosecutor' s conduct was improper, we then determine whether the prosecutor' s improper

conduct resulted    in   prejudice   to Clark.   Emery,   174 Wn.2d     at   757 -78, 760 -61. If the defendant did


not object at trial, the defendant is 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.   Emery, 174 Wn.2d at 760 -61 ( citing State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d

1239 ( 1997)).


        Here, Clark did not object to any of the comments he now characterizes as prosecutorial

misconduct; therefore, Clark is presumed to have waived any error. The defendant is presumed to

have waived any error because objections are required to prevent additional improper remarks and

abuse of   the   appellate process.     Emery,    174 Wn.2d    at   762.     Accordingly, we apply a heightened

standard which requires          the defendant to show that "(        1) `   no curative instruction would have




4 To the extent that Clark is arguing that if he was ordered to appear at 8: 30, he could only be found
guilty of bail jumping if he is absent at court exactly at 8: 30, this argument necessarily leads to
absurd results. First, a defendant could be found guilty of bail jumping if he is five minutes late

to court. Second, a defendant would not be guilty of bail jumping if he was present at 8: 30 and

left immediately thereafter before the scheduled court proceeding commences.


                                                          14
No. 44642 -1 - II



obviated any prejudicial effect on the jury' and ( 2) the misconduct resulted in prejudice that `had

a   substantial    likelihood       of   affecting the   jury   verdict. '     Emery,   174 Wn.2d    at   761 ( quoting


Thorgerson, 172 Wn.2d           at   455).   When reviewing a prosecutor' s misconduct that was not objected

to, 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.

          In closing argument, prosecutors are afforded wide latitude to draw and express reasonable .

inferences from the evidence. State v. Reed, 168 Wn. App. 553, 577, 278 P. 3d 203, review denied,

176 Wn.2d 1009 ( 2012).              When analyzing prejudice, we do not look at the comment 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.    Yates, 161 Wn.2d 714, 774, 168 P. 3d 359 ( 2007), cert. denied, 554 U. S.


922 ( 2008).      We   presume       the   jury follows   the   court' s   instructions. State v. Anderson, 153 Wn.


App.     417, 428, 220 P. 3d 1273 ( 2009), review denied, 170 Wn.2d 1002 ( 2010).


           Clark alleges that there were four specific instances of misconduct committed by the

prosecutor     during   closing      arguments.    First, he argues that the prosecutor improperly quantified

the beyond        a reasonable       doubt    standard.     Second, he argues that the prosecutor improperly

bolstered the State' s case. Third, he argues that the prosecutor improperly appealed to the passions

and prejudices of       the   jury. Fourth, he argues that the prosecutor improperly disparaged defense

counsel. And, Clark argues the cumulative effect of the prosecutor' s misconduct denied him a fair

trial.


           Here, the prosecutor did not improperly quantify the burden of proof, improperly bolster

the State' s case, or improperly appeal to the passions or prejudices of the jury. And; although the

prosecutor
               improperly           disparaged    defense       counsel    during   rebuttal   closing    argument,   the




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prosecutor' s comment was not so flagrant and prejudicial that it could not have been cured.


Furthermore, the cumulative error doctrine does not apply.

         1.         Quantifying Beyond a Reasonable Doubt

         The prosecutor commits misconduct if he or she minimizes the burden of proof or attempts


to quantify the level of certainty required to satisfy the beyond a reasonable doubt standard. State

v.   Fuller, 169 Wn.    App.   797, 825, 282 P. 3d 126 ( 2012), review denied, 176 Wn.2d 1006 ( 2013).


Clark argues that the prosecutor improperly attempted to quantify the beyond a reasonable doubt

standard by stating:

         Well, the law says you don' t have to be convinced beyond all doubt, beyond any
         doubt, 99 %.


4 RP at 506. The prosecutor goes on to state:


         You have to beyond [        sic] a reasonable    doubt. And Judge Evans defines it for us.
         He tells us that a reasonable doubt is one for which a reason exists, and if you have
         an abiding belief; a belief that lasts, a belief that endures in the Defendant' s guilt,
         then   you are convinced ...        beyond a reasonable doubt.


4 RP at 506. Within the context of the prosecutor' s argument, it is clear that the prosecutor is not


improperly quantifying the level of certainty required to satisfy the beyond a reasonable doubt

standard.     When the prosecutor referred to 99 percent, he was telling the jury what the beyond a

reasonable doubt standard is not, the prosecutor is not attempting to tell the jury what the standard

is. And, the prosecutor immediately discusses the correct definition of beyond a reasonable doubt

directly from     the   court' s   jury   instructions.   The prosecutor' s argument was not an improper


statement quantifying the beyond a reasonable doubt standard.




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No. 44642 -1 - II



        2.          Bolstering the State' s Case

            Improper vouching occurs when the prosecutor expresses a personal belief in the veracity

of a witness or indicates that evidence not presented at trial supports the testimony of a witness."

Thorgerson, 172 Wn. 2d        at   443.    However, it is not misconduct for the prosecutor to argue that


other evidence presented at trial corroborates a witness' s testimony. State v. Gentry, 125 Wn.2d

570, 641, 888 P. 2d 1105 ( 1995).         Clark argues that the prosecutor improperly bolstered the State' s

case and vouched for Vanderhoff' s credibility by arguing;

        And what Ms. Vanderhoff tells the police, everything she says is corroborated by
        what the police find when they finally get enough evidence to raid and search the
        Defendant' s house.


4 RP   at   499.   The prosecutor went on to list all the evidence the police found that corroborated


Vanderhoff' s testimony. The prosecutor did not rely on references to evidence outside the record
to argue that Vanderhoff was credible. And, the prosecutor did not express a personal opinion as


to Vanderhoff' s credibility. Instead, the prosecutor relied on evidence presented at trial to argue

that Vanderhoff s       testimony    was    credible   because   other evidence   corroborated   it.   There was


nothing improper about the prosecutor' s argument; thus, the prosecutor did not commit misconduct

by bolstering the State' s case or expressing a personal belief regarding Vanderhoff' s credibility.

            Clark also argues that the prosecutor alluded to evidence outside the record when he stated


that Vanderhoff testified that Clark had been acting erratically and engaging in bizarre behavior.

And, he alleges that the prosecutor improperly stated that Clark told Vanderhoff she was not

welcome       on   the property.     The prosecutor' s comments regarding Clark' s bizarre (and erratic

behavior      were supported    by   Vanderhoffs       testimony. Vanderhoff testified that Clark was not




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No. 44642 -1 - II



sleeping     and   his behavior   was   causing her to be     concerned and     fearful.   Vanderhoff' s testimony

supports the inference that Clark' s behavior could be characterized as erratic or bizarre.


        Clark is correct that Vanderhoff did not testify that Clark told her she was unwelcome on

the property. However, she did state that she had become fearful of Clark and that was why she

left. It is reasonable to infer from her statements that Clark' s behavior made her feel unwelcome.


And, to the extent that the prosecutor attributed Vanderhoff s feeling to a statement made by Clark,

any   possible prejudice was        cured   by   the trial   court' s   instructions to the   jury. The jury was

explicitly instructed that the lawyers' remarks during closing argument are not evidence. And, the

jury was instructed to disregard any remark that was not supported by the evidence; therefore, we

must presume that the jury disregarded the inference that Clark told .Vanderhoff she was

unwelcome. Accordingly, the prosecutor' s statement could not have had a substantial likelihood

of affecting the jury' s verdict.

        3.          Appealing to the Passions and Prejudices of the Jury

        A prosecutor may not make statements that are unsupported by evidence or invite the jurors

to decide    a case   based   on emotional appeals     to their   passions and prejudices.      State v. Jones, 71


Wn.   App.    798, 808, 863 P. 2d 85 ( 1993),       review    denied, 124 Wn.2d 1018 ( 1994).        Clark argues


that the prosecutor improperly appealed to the passions and prejudices of the jury by arguing:

        That' s the way you treat a hostage. That' s what he was doing. Holding the bulldog
        hostage. Why? Easy answer and it' s an old answer: greed. Greed. Lust for money,
        lust for drugs. Because that' s what Jagger meant to the Defendant and the people
        he was working with. To him, Jagger was not a pet, Jagger was not a friend of the
        family, Jagger was just a way to get what he wants. And he' s willing to do whatever
        he wants —needs to get from him. Dog has value to him, because of what it can get
        him. And when the dog can' t get him anything anymore, dog' s not worth anything
        to him. And we see where that ended up.




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No. 44642 -1 - II



4RPat497.


         Contrary to Clark' s assertion, the prosecutor was not improperly appealing to the passions

and prejudices ofthe jury. Putting aside the fact that the entire case was about Clark killing Jagger,

a family pet, for money and drugs which will naturally evoke emotion from jurors, the prosecutor' s

argument was made           specifically regarding Clark'     s   knowledge that Jagger              was stolen.    The State


was required        to   prove   that Clark knew Jagger     was stolen.           Clark claimed that he did not know


Jagger was stolen; he told Vanderhoff he was watching Jagger for a friend and he told Powers that

he had bought Jagger             as a pet.    The prosecutor was arguing that the way Clark treated Jagger

demonstrated that he viewed Jagger not as a pet, but rather as an object that served a particular


purpose.      The prosecutor' s argument was not specifically calculated to inflame the passions and

prejudices     of   the   jury. Rather, the prosecutor' s argument was based on making inferences to

support the conclusion that Clark knew Jagger was stolen. The prosecutor' s comments were not


improper.


         4.          Disparaging Defense Counsel

         It is improper for the prosecutor to disparagingly comment on defense counsel' s role or

impugn     counsel' s     integrity.      Thorgerson, 172 Wn.2d       at   451.    A prosecutor' s conduct is improper


when the prosecutor' s arguments accuse defense counsel of engaging in " sleight of hand" or use
                                                                  1



terms   such as "    bogus"      or "   deception." Thorgerson, 172 Wn.2d at 451 -52. Clark contends that the


prosecutor disparaged defense counsel at the beginning of rebuttal closing argument when the

prosecutor said:




         Rebuttal argument is always my favorite part of the trial because, by this point, I
         get   to hear     what    the Defense     arguments are and        they   never   fail to   entertain.    But




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No. 44642 -1 - II



             then I get another chance to talk to you folks about what' s reasonable and what the
             evidence really shows.


4 RP    at    526.    The     prosecutor   essentially   made      light   of    defense   counsel' s arguments.   And, the


prosecutor implied that defense counsel' s arguments were unreasonable and misrepresented the

evidence.          The prosecutor improperly disparaged defense counsel, and the comments were

improper.


             However, Clark did         not object    to the    prosecutor' s comments.         Although improper, Clark


cannot show that any resulting prejudice caused by the prosecutor' s comments could not have been

cured by a timely objection and instruction. If Clark had objected to the prosecutor' s comments,

the trial court could have instructed the jury to disregard the comment. Because we presume that

the jury follows the trial court' s instructions, any resulting prejudice from the comment could have

been    cured       by    the trial   court' s   instruction.     Accordingly, Clark has not met his burden to

demonstrate that the prosecutor' s comments disparaging defense counsel were so flagrant and ill -

intentioned that reversal is required.


             5.          Cumulative Error


             Clark argues that the cumulative effect of the prosecutor' s misconduct deprived him of a


fair trial. Under the cumulative error doctrine, a combination of errors may require reversal even

when each individual error is otherwise harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P. 3d

646 ( 2006),        cert.   denied, 551 U. S. 1137 ( 2007).       However, the doctrine does not apply where there

are   few    errors or the errors      have little to   no effect on       the   outcome of   the trial.   Weber, 159 Wn.2d


at    279.        Here, there were two instances where the prosecutor' s conduct was improper: the


prosecutor' s disparaging comments in rebuttal closing argument and the prosecutor' s misstatement




                                                                  20
No. 44642 -1 - II




regarding Vanderhoff' s     testimony.   Here; both instances of improper conduct were relatively

minor and Clark has not demonstrated that they had an effect on the outcome of the trial.

Accordingly, the cumulative error doctrine does not entitle Clark to relief.

D.        ACCOMPLICE LIABILITY INSTRUCTION


          Clark argues that the accomplice liability statute is unconstitutionally overbroad because it

punishes protected speech. This court has twice considered, and rejected, this same argument. In


Coleman, 155 Wn. App. at 960, Division One of this court held that the accomplice liability

instruction   was not   unconstitutionally   overbroad   because [ the   statute' s] "   sweep avoids protected


speech activities that are not performed in aid of a crime and that only consequentially further the

crime."    We explicitly adopted Division One' s holding in State v. Ferguson, 164 Wn. App. 370,

376, 264 P. 3d 575 ( 2011), review denied, 173 Wn.2d 1035 ( 2012).


          Clark also argues that Coleman and Ferguson were wrongly decided because they did not

apply the appropriate standard that the United States Supreme Court articulates in Brandenberg v.

Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 ( 1969). We disagree. Therefore, we do not


further consider Clark' s claim that the accomplice liability statute is unconstitutionally overbroad.5

E.        OFFENDER SCORE CALCULATION


          Clark may not challenge the calculation of his offender score because of the belief that, if

asked, the trial court would have found the defendant' s current offenses encompassed the same




5 In Ferguson, we explicitly held that the accomplice liability statute is not unconstitutional
because " it does not forbid the mere advocacy of law violation that is protected under the holding
of Brandenburg." 164 Wn. App. at 376. Therefore, Clark is incorrect in his assertion that Coleman

and Ferguson were wrongly decided because they did not apply the Brandenburg standard when
determining that the accomplice liability statute is not unconstitutionally overbroad.

                                                     21
No. 44642 -1 - II




criminal conduct. State v. Nitsch, 100 Wn. App. 512, 524 -25, 997 P.2d 1000, review denied, 141

Wn.2d 1030 ( 2000);       In re Pers. Restraint of Goodwin, 146 Wn.2d 861, 874, 50 P. 3d 618 ( 2002).

Whether convictions are the same criminal conduct includes factual questions for the trial court to


resolve. Nitsch, 100 Wn. App. at 524 -25. And, the failure to request that the trial court do a same

criminal conduct analysis is " a failure to identify a factual dispute for the court' s resolution and a

failure to   request an exercise of   the   court' s   discretion."   Nitsch, 100 Wn. App. at 520. Therefore,

the failure to request a same criminal conduct analysis in the trial court leaves this court with an

insufficient record to review whether the trial court abused its discretion when making the factual

findings supporting a same criminal conduct determination. Nitsch, 100 Wn. App. at 524. Because

Clark failed to argue that his convictions were the same criminal conduct at sentencing, he has

waived his objection to the trial court' s offender score calculation based on his assertion that his

extortion and possession of stolen property convictions are the same criminal conduct.

F.        INEFFECTIVE ASSISTANCE OF COUNSEL


          Clark claims that he received ineffective assistance of counsel because his counsel did not

request   that the trial    court   consider   same     criminal   conduct   during   sentencing.   A defendant


                                                          has the burden to                  that ( 1)
claiming ineffective        assistance   of    counsel                           establish               counsel' s




performance was deficient and ( 2) counsel' s deficient performance prejudiced the defendant.

Strickland     v.   Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). Because


same criminal conduct favors the defendant, the defendant bears the burden of proving that his

convictions are the same criminal conduct. State v. Graciano, 176 Wn.2d 531, 539, 295 P. 3d 219

 2013).      Therefore, in the ineffective assistance of counsel context, the defendant must show that




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No. 44642 -1 - II




it was objectively unreasonable for defense counsel to fail to make a same criminal conduct

argument because the same criminal conduct argument would have been successful.

        To prevail on a same criminal conduct claim, the defendant must prove that the convictions


required the same criminal intent, were committed at the same time and place, and involved the

same victim.    RCW 9. 94A.589( 1)(    a).   Here, the State argued, and presented sufficient evidence to


prove, that one way in which Clark was an accomplice to extortion was by using his truck to

perform   the   exchange   of   Jagger for the money    and   drugs.   This conduct was committed at a


different time and place than keeping Jagger at his house. Accordingly, Clark has not shown that

a same criminal conduct argument would have been successful and his ineffective assistance of

counsel claim fails.


        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports but will instead be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




 We concur:




                    Worswick, P. J.




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