                                                                          FILED
                                                                        JULY 2, 2020
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )         No. 36775-4-III
                                             )
                     Respondent,             )
                                             )
       v.                                    )         UNPUBLISHED OPINION
                                             )
CHRISTOPHER RYAN HARPER,                     )
                                             )
                     Appellant.              )

       PENNELL, C.J. — Christopher Harper appeals his conviction for attempting to

elude a police vehicle. We affirm.

                                         FACTS

       Mr. Harper came to the attention of law enforcement when he was driving a red

BMW and ran a red light. A police vehicle caught up with the BMW while it was near

the gas pumps of a 7-Eleven store. The two officers inside the police vehicle observed

the driver was a male with brown hair and a distinctive neck tattoo. The officers activated

their emergency lights and sirens to initiate a stop, but the BMW drove away. The officers

pursued as the BMW steadily increased its speed. The officers ultimately ended the

pursuit for safety reasons.
No. 36775-4-III
State v. Harper


       Officers ran the BMW’s plates and discovered it was last registered to Solomon

Struckman. Police talked to Mr. Struckman and learned he had sold the BMW to Mr.

Harper. The police pulled a booking photograph of Mr. Harper taken from a previous,

unrelated arrest and confirmed he was the person seen driving the BMW. Of particular

note was a distinctive tattoo on Mr. Harper’s neck. The tattoo in the photograph was the

same as one observed on the driver of the BMW.

       Mr. Harper was arrested and charged with attempting to elude a police vehicle.

Prior to trial, he moved to exclude the booking photograph from evidence, arguing it had

improper character implications. The trial court granted Mr. Harper partial relief. The

court ordered the State to modify the photograph so it would seem like a driver’s license

photo. The court also barred the State and its witnesses from referring to the photo as a

booking photograph.

       The State complied with the trial court’s order up until final rebuttal. At that point,

the prosecutor argued as follows:

              Counsel talks about the fact that well, why, didn’t you put the neck
       tattoos in your report. Well, again, we talked about in voir dire, the fact that,
       I mean, how do you remember what you had for breakfast that day? And I
       said, well, what if you wrote it in a blog or what if you wrote it in a diary.
       Even when you take diaries and blogs, you don’t put in every single detail.
              But the officers did remember that detail. And two hours later, when
       they pulled up this booking photo, they saw those same tattoos that are on
       this and confirmed, yeah, that’s the guy driving. It wasn’t just based solely

                                              2
No. 36775-4-III
State v. Harper


       on the tattoos. That was one part of it. It was also the physical features of it.
       And it was the face that they saw. You know, some people might be good
       with names, but a lot of people are very good with faces.

Report of Proceedings (Apr. 1, 2019) at 191 (emphasis added). Mr. Harper did not object.

       The jury convicted Mr. Harper as charged. He now appeals.

                                         ANALYSIS

       Mr. Harper’s sole complaint on appeal pertains to the prosecutor’s reference to the

booking photograph. He makes two arguments: (1) the prosecutor’s comment constituted

prejudicial misconduct, and (2) he was deprived of his constitutional right to effective

assistance of counsel when his attorney failed to object to the prosecutor’s comment.

Prosecutorial misconduct

       An unpreserved claim of prosecutorial misconduct is waived unless the

misconduct was “so flagrant and ill intentioned that an instruction could not have cured

the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012).

Few errors meet this standard. See In re Pers. Restraint of Phelps, 190 Wn.2d 155, 170-

71, 410 P.3d 1142 (2018). To merit relief, the prosecutor’s misconduct must not only

have been incurable, it also must have caused “a substantial likelihood” of prejudicing the

jury’s verdict. Emery, 174 Wn.2d at 761.




                                               3
No. 36775-4-III
State v. Harper


       This is not the rare case that merits relief based on unpreserved prosecutorial

misconduct. While improper, the prosecutor’s brief mention of the booking photograph

was an isolated incident, unaccompanied by any prejudicial context. The comment was

not an inherently inflammatory remark, such as an appeal to racial prejudice. See Phelps,

190 Wn.2d at 170. It was instead something that could have been addressed by an

objection and request for curative action. See State v. Wade, 186 Wn. App. 749, 775,

346 P.3d 838 (2015) (improper reference to booking photograph cured by trial court’s

instruction). Relief based on prosecutorial misconduct is unwarranted.

Ineffective assistance of counsel

       To establish a violation of the constitutional right to effective assistance of

counsel,1 a defendant must make two showings: (1) deficient performance and

(2) prejudice. Premo v. Moore, 562 U.S. 115, 121, 131 S. Ct. 733, 178 L. Ed. 2d 649

(2011). Deficiency is assessed according to an objective standard of reasonableness and

does not encompass counsel’s tactical decisions. State v. Classen, 4 Wn. App. 2d 520,

535, 422 P.3d 489 (2018). Prejudice turns on whether there was a causal connection

between counsel’s deficient performance and the outcome of the proceedings. Id. If either

prong is unproved, the inquiry ends and the defendant is not entitled to relief. Id.


       1
           U.S. CONST. amend VI; WASH. CONST. art. I, § 22.

                                              4
No. 36775-4-111
State v. Harper


       We do not reach the issue of deficient performance because Mr. Harper has not

shown prejudice. The evidence of guilt was overwhelming. Mr. Struckman testified that

he had sold the red BMW to Mr. Harper. Two officers then testified that they recognized

Mr. Harper as the driver of the car. In addition, as explained above, the prosecutor's

reference to the booking photograph was brief and did not include any explanation of

what a booking photograph is or how it might be related to past criminal conduct. There

was no argument at trial suggesting Mr. Harper had a criminal past or that he should be

convicted on the basis of bad character. Mr. Harper has not established he is entitled to

reversal based on ineffective assistance of counsel.

                                     CONCLUSION

      The judgment of conviction is affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.
                                                 Q.               I   c..~
                                          Pennell, C.J.
WE CONCUR:




                                          Fearing, J.
                             j
                                             5
