                                                                      FILED
                                                                  OCTOBER 30, 2018
                                                              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. 35296-0-III
                    Respondent,             )
                                            )
      v.                                    )
                                            )
JEFFREY JOSEPH POOL,                        )         UNPUBLISHED OPINION
                                            )
                    Appellant.              )

      FEARING, J. — Jeffrey Pool challenges his convictions for robbery, assault and

kidnapping on the grounds that the trial court excluded permissible evidence and the

prosecution committed misconduct. We find no error and affirm.

                                        FACTS

      This appeal concerns the prosecution of Jeffrey Pool for armed robbery of

Cheney’s Dollar Tree Store on May 30, 2015, and July 9, 2016. Pool worked at the

Cheney Dollar Tree Store during 2012. During 2015 and 2016, Jeffrey Pool worked as a

correctional officer at the Airway Heights Correctional Center. Airway Heights lies

thirteen miles north of Cheney. Three miles separated Jeffrey Pool’s residence from the

Dollar Tree.
No. 35296-0-III
State v. Pool


       On May 30, 2015, Assistant Manager Tom Busby worked the evening shift at the

Dollar Tree in Cheney. At 9:00 p.m. after closing, Busby and Mikaela Norrish, another

store employee, inventoried store cash registers in the back office when Busby heard a

noise inside the store. Busby had assumed no customers remained in the Dollar Tree

since he already searched the premises and locked the front doors. Busby opened the

office door, and a masked male charged into the room brandishing a pistol.

       The hooded male politely informed Tom Busby and Mikaela Norrish: “sorry I

have to rob you.” Report of Proceedings (RP) at 114. Busby believed the intruder

legitimately felt remorse, although the robber threatened the employees with use of his

pistol. According to Busby, the trespasser wore a knit cap, with its cap eyes slit, pulled

over his face. The courteous menacing man wore a red and black Eastern Washington

University sweatshirt, gloves, and black pants.

       The veiled thief ordered Tom Busby and Mikaela Norrish to place their cell

phones in a safe. The interloper pawed and removed all cash from the tills and the safe.

He grabbed $2,500. The masked man then marched Busby and Norrish to the front of the

store, locked the front door, and instructed his two captives to march toward the rear of

the building while not looking backward.

       During the night of May 30, 2015, Cheney Police Sergeant Chris English

investigated the Dollar Tree Store robbery. Sergeant English saw and spoke with

Matthew Smith and Frank Wolf in a Taco Bell parking lot near the Dollar Tree. Smith

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No. 35296-0-III
State v. Pool


and Wolf had parked a vehicle in front of a NAPA Auto Parts store, which lay inside an

area cordoned off by law enforcement. Smith and Wolf provided English a written

statement in English, which included personal contact information. The pair, according

to English, appeared relaxed.

       On the night of May 30, Cheney Police Officer Timothy Ewen directed a police

dog to track a scent. The dog traced a smell from the Dollar Tree to the NAPA Auto

Parts parking lot, where the scent ended. Nevertheless, Sergeant Chris English and

Officer Ewen did not deem Matthew Smith and Frank Wolf as viable suspects because

neither man wore clothing described by Mikaela Norrish or Tom Busby as being adorned

by the robber. Smith stood taller than the man who robbed the Dollar Tree.

       Matthew Smith had a warrant for his arrest because of a failure to pay restitution

after a 1992 King County juvenile court conviction for kidnapping and robbery. The

Cheney Police Department learned of the warrant days later. Frank Wolf carried a felony

conviction while a juvenile, which conviction was at least twenty years old. No witness

identified the nature of the juvenile conviction.

       At some date after May 30, 2015, Cheney Police Detective Sergeant Justin Hobbs

attempted to contact Frank Wolf and Matthew Smith, but to no avail. At Jeffrey Pool’s

trial, Detective Hobbs did not recall how many times he attempted to contact either Wolf

or Smith. Hobbs prepared no report about his attempts to contact the two.

       On May 31, 2015, the day after the first robbery, an anonymous individual

                                              3
No. 35296-0-III
State v. Pool


telephoned the Cheney Police Department to report a suspicious object along State Route

904. Sergeant Chris English and Officer Zebulon Campbell then located a black knit cap

on the side of the highway. The cap, with eye holes cut, resembled a ski mask. Mikaela

Norrish and Tom Busby identified the cap as the one worn by the Dollar Tree intruder.

       We forward thirteen months. On July 9, 2016, at 8:30 p.m., Eric Blazekovic, a

Cheney Dollar Tree assistant manager, noticed Jeffrey Pool inside the store. Blazekovic

and Pool attended Cheney High School as teenagers and, in 2015, frequented the same

gym. Pool wore a motorcycle helmet and dark blue or black clothing. Blazekovic, a

motorcycle enthusiast, peered into the store parking lot to view Pool’s motorcycle.

Blazekovic saw no motorcycle in the lot.

       On July 9, 2016, Tom Busby again worked the evening shift at the Dollar Tree

Store. Before closing, Busby searched for trespassers on the premises. Busby attempted

to enter the employee restroom only to discover someone had blocked the doorway from

inside. Busby placed his foot against the door to prevent the prowler from exiting.

Busby and the intruder scuffled until the intruder informed Busby he held a gun.

       The restroom occupant exited the bathroom, displayed his gun, and searched Tom

Busby for weapons. The assailant wore a motorcycle helmet, a gray Eastern Washington

University sweatshirt, dark military pants, a police belt, black shoes, and black gloves.

He toted a red bag with a black drawstring.

       The assailant shoved his gun into the small of Tom Busby’s back, restrained

                                              4
No. 35296-0-III
State v. Pool


Busby’s hands with plastic handcuffs, and ushered him toward the store’s selling floor.

Busby and his captor encountered store employee Sarah Cousins. Cousins informed the

intruder that customers remained inside the store, so the robber moved Busby and

Cousins to a warehouse in the back of the store. The interloper cut the handcuff ties to

free Busby so that Busby could escort the remaining customers from the store as the

interloper held Cousins captive. Busby waited on the remaining customers.

       After the departure of all customers, the robber ordered Tom Busby and Sarah

Cousins to the store office, and he collected cash from the tills and the safe. The thief

also placed Busby’s and Cousins’ phones inside the safe, directed the two to the

bathroom, and then fled the Dollar Tree.

       Tom Busby informed law enforcement that he believed the same individual

robbed the store on both occasions. Busby estimated the robber to stand at 5’10.”

       On July 9, 2016, Jeffrey Pool rode on his motorcycle on the way to work the

graveyard shift at Airway Heights Corrections Center. The prison did not permit its

employees to store firearms inside the center. Pool asked coworker Dru Searls if he

could store his firearm inside Searls’ vehicle. Pool had never before requested this favor

from Searls. Pool lamented to Searls that Pool must work overtime to gain sufficient

cash to purchase a home.

       On July 12, 2016, law enforcement arrested Jeffrey Pool at the Airway Heights

Corrections Center. Police also executed a search warrant for Pool’s clothing,

                                             5
No. 35296-0-III
State v. Pool


deoxyribonucleic acid (DNA), automobile, and residence. Law enforcement seized a box

of .9-millimeter bullets from Pool’s vehicle’s center console. Officers took a black pair

of pants and a black long sleeve shirt from the car’s trunk. Law enforcement found a

Smith & Wesson M&P pistol inside Pool’s home. Police also discovered two motorcycle

helmets and an Eastern Washington University sweatshirt at the residence.

                                      PROCEDURE

       The State of Washington charged Jeffrey Pool with two counts of first degree

robbery, four counts of second degree assault, and four counts of kidnapping in the first

degree.

       Before trial, the State moved in limine to prevent mention of criminal convictions

of Matthew Smith and Frank Wolf, the two individuals with whom law enforcement

spoke outside the NAPA store adjacent to the Dollar Tree on May 30, 2015. In its

written motion, the State sought:

               . . . To prohibit the defense from mentioning the convictions of the
       witnesses on the stand or any witnesses who were contacted by law
       enforcement but are not testifying.
               ....
               . . . To prohibit the defense introducing irrelevant evidence about
       non-testifying witnesses or evidence that they acted in conformity therewith
       [to] the May 2015 robbery.

Clerks Papers (CP) at 32-33 (boldface omitted). During oral argument on the motion in

limine, the State conceded that Smith garnered criminal convictions at an earlier age.

Nevertheless, the State highlighted the convictions as occurring twenty-four years earlier.

                                             6
No. 35296-0-III
State v. Pool


The State did not concede that Wolf held prior convictions, but an officer later testified at

trial to Wolf having a felony conviction. Neither party has identified the specific crime

committed by Wolf.

       During its motion in limine argument, the State characterized the convictions of

Matthew Smith and Frank Wolf as irrelevant and admissible only for impeachment

purposes, under ER 609, if either testified. The State agreed that Jeffrey Pool could

introduce evidence concerning the interaction between law enforcement and Smith and

Wolf on May 30, 2015, and thereafter, but the State sought preclusion of evidence of the

criminal histories. The State did not then distinguish between the fact of the convictions

and the crimes of convictions.

       In response to the State’s motion in limine, Jeffrey Pool emphasized that a dog

tracked a scent from the Dollar Tree to the NAPA parking lot, where the officers found

Frank Wolf and Matthew Smith. Pool also contended that Smith and Wolf walked to

Safeway on the night of the robbery and that law enforcement found the knit cap near the

Safeway store. Pool claimed that each man’s prior convictions were for burglary and

kidnapping, and Pool emphasized that he faced the same charges. Pool’s counsel

remarked:

              It wasn’t found out until a couple days later that these two
       individuals, by Captain Beghtol, that one in particular had a warrant,
       outstanding warrant, for this burglary and kidnapping charge, the same
       charges that Mr. Pool is being referred to.


                                              7
No. 35296-0-III
State v. Pool


RP at 13-14. Pool characterized the two men as suspects, not witnesses. Thus, Pool

stated he did not seek to question about the crimes of conviction in order to impeach the

two. Nevertheless, according to Pool, evidence concerning Wolf’s and Smith’s crimes

held relevance to the lack of thoroughness of the police investigation of the Dollar Tree

robbery.

       At the conclusion of the pretrial hearing, the trial court granted in part and denied

in part the State’s motion in limine to preclude reference or testimony about Frank Wolf’s

and Matthew Smith’s past. The trial court ruled that Jeffrey Pool could introduce

testimony about the pair’s past in order to attack the competency of the police

investigation. Nevertheless, the defense could not argue that Smith and Wolf committed

the Dollar Tree store robberies because they committed similar crimes in the past. The

trial court later readdressed its ruling.

       During trial, police witnesses testified regarding the depth of the law enforcement

investigation into Matthew Smith’s and Frank Wolf’s possible participation in the May

2015 Dollar Tree store robbery. In response to the State’s attorney’s questioning, Cheney

Police Captain Richard Beghtol declared:

             Q Okay. And did you fill out the paperwork for the lab?
             A I did.
             Q Okay. And so both of the two subjects had felony convictions
       from 20 or so years ago when they were teenagers?
             A Yes.
             Q Okay. And so at least one of them was in CODIS [Combined
       DNA Index System] from a conviction 24, 25 years ago?

                                              8
No. 35296-0-III
State v. Pool


              A That’s correct.
              Q Okay. And he had a legal financial warrant out for him?
              ....
              A Yes.
              Q Okay. Now, was that a warrant for a crime that was out for him?
              A No.
              Q Okay. What kind of warrant was out for Mr. Smith?
              ....
              A It was for failing to pay restitution from his conviction.
              Q (By Mr. Treece) Okay. And how old was that warrant?
              A It was issued in 1994.
              Q Okay. So back in—in 2015, a 21-year-old-warrant?
              A Yes.
              Q Out of which county?
              A Out of King County.
              ....
              Q Okay. So to be clear, did Mr. Smith have any warrants out for
      any type of active crimes?
              A No. Not that I could find.
              ....
              Q And besides Mr. Smith’s felonies that he committed when he was
      a juvenile, has he ever committed another crime nationwide?
              A Not that I could find.
              ....
              And Mr. Wolf, the other individual, did he have any warrants out for
      his arrest?
              A No, he didn’t have any warrants.

RP at 517-20.

      Defense counsel cross-examined Captain Beghtol regarding Matthew Smith’s and

Frank Wolf’s felony convictions:

              Q . . . Captain, again, those facts of the prior convictions and the
      fact of the one individual with two active felony warrants, was that
      information useful?
              A Yes.


                                             9
No. 35296-0-III
State v. Pool


              Q Does an officer who encounters an individual and runs and finds
       out about a felony warrant, does he have the leeway to let that individual
       go?
              A No.

RP at 626.

       During the cross-examination of Captain Richard Beghtol, the State grew

concerned that defense counsel might soon ask Beghtol about the label of the crimes

committed by Frank Wolf or Matthew Smith. The trial court questioned defense counsel

concerning the questions he intended to ask. Defense counsel responded that he intended

to ask Captain Beghtol to identify the nature of the convictions and the relevance of the

particular crimes to the Cheney Police Department investigation. The State objected to

any questioning as to the names of the convictions. The prosecution commented:

               But I think the entire reason he [defense counsel] wants to bring up
       the robbery and kidnapping is to malign the character of—of this person
       [Matthew Smith] with a—convictions that are 24 years old. There is no
       other purpose to that.
               . . . If Mr. Johnson [defense counsel] wants to ask the captain do
       you know that you were wrong about the nature of the warrants, that’s a
       valid question and he can certainly ask that question. But in terms of
       getting to the underlying crime that—that—that what the warrants were for,
       that’s absolutely improper and is absolutely prejudicial to the State.

RP at 564-65. The trial court responded to the State’s objection to identifying the crimes

of conviction, and the State’s attorney thereafter commented:

              THE COURT: You [defense counsel] can ask him [Captain Richard
       Beghtol] first if you knew of any felony convictions and, secondly, whether
       those—the nature of those felony convictions caused him to do or not to do
       anything. If he says yes, then I think it’s fair game that that’s why he

                                            10
No. 35296-0-III
State v. Pool


       included it in here. But it can’t be used to show they [Matthew Smith and
       Frank Wolf] acted in conformity with that.
               MR. TREECE [prosecuting attorney]: Correct, Your Honor. The
       prejudice to the State is going to be devastating. We have a saying that this
       is a robber kidnapper that those are the charges we have before the Court.

RP at 565.

       One might wonder if, based on this ruling, the trial court allowed defense counsel

to question Captain Richard Beghtol about the nature of the convictions if Beghtol

testified to the relevancy of the nature to the police investigation, as long as counsel did

not later argue that Matthew Smith or Frank Wolf acted in conformance with the nature

of the convictions in robbing the Dollar Tree store. The trial court briefly recessed and

clarified its ruling. The trial court ruled that the identification of the convictions

possessed relevance because that identity could have influenced the investigation of the

Cheney Police Department. Nevertheless, the court found the information about the

kidnapping and robbery to be unduly prejudicial to the State because the jury would

conclude that Matthew Smith and Frank Wolf acted in conformity to the convictions at

the time of the Dollar Tree Store robberies. The trial court reasoned that Jeffrey Pool

could effectively present his argument about the poor quality of investigation of the

crimes by testimony of the earlier felony convictions without identifying the convictions.

The trial court affirmed that defense counsel could question Captain Richard Beghtol

about the existence of the decades old felonies, but ordered that no witness be questioned

about the nature of the convictions.

                                              11
No. 35296-0-III
State v. Pool


       The prosecution later questioned Cheney Police Officer Timothy Ewen:

              Q You saw the two individuals in the parking lot from a distance?
              A Correct
              Q Did they match the description of the alleged suspect at all?
              A No.
              Q Do you recall why?
              A I saw them. Me and Sergeant English, we talked together. They
       didn’t match the description.

RP at 751-52. Ewen described Matthew Smith and Frank Wolf as being over six feet tall

and not matching the description of the robber given by Tom Busby, a victim of the

kidnappings.

       During trial, Washington State Patrol DNA forensic scientists Anna Wilson and

Alison Walker testified. According to the witnesses, the State Patrol Laboratory

developed a profile from DNA removed from the knit cap law enforcement discovered on

the side of the highway and from DNA extracted from Jeffrey Pool. Walker found Pool

to be one of two significant contributors to the cap DNA, when she compared the DNA

typing profile of Jeffrey Pool to the DNA mixture extracted from the cap.

       Alison Walker testified to her calculation of a likelihood ratio of DNA from the

cap DNA matching DNA from Jeffrey Pool. The likelihood ratio is the ratio of two

hypotheses. In this instance, the first hypothesis represents the chance that Jeffrey Pool

and an unknown individual significantly contributed to the DNA profile found on the knit

cap. The second hypothesis represents the chance that two unknown individuals

contributed to the DNA found on the cap. The likelihood ratio weights the two

                                            12
No. 35296-0-III
State v. Pool


hypotheses. Walker found the likelihood ratio of 140 times more likely that the DNA

extracted from the knit cap comes from a mixture of Jeffrey Pool and an unknown than

two unrelated individuals selected at random from the United States population.

       During closing argument, the prosecution commented:

                And after a DNA sample is taken from Jeffrey Pool, that DNA
       sample goes to the lab. And when that DNA sample is run against the two
       major contributors on the mask, there’s an interesting—there’s an
       interesting result. It’s 140 times more likely that the two major contributors
       on the mask are Jeffrey Pool and an unknown individual than not. So
       here’s what that means.
                ....
                . . . So you have a coin with Jeffrey Pool’s face and another face
       with just a question mark on it. And then on the other side you have two
       faces with question marks. The science tells us that if today you flip that
       coin 140 times, 139 times it’s Jeffrey Pool and the unknown individual.
       140 times more likely that it’s Jeffrey Pool’s.
                And as Mr. Johnson pointed out, and I was obviously wrong, I called
       those results in my opening nebulous. That is not at all what the expert
       testified to. She said no, no, no, no, that’s actually moderately strong DNA
       evidence. Guess what. Go with the expert. That’s the—that’s the evidence
       that you have, right?
                But here’s the great thing about the science of DNA. There’s
       nobody in the world who disagrees with it. There’s nobody in the world
       who has any alternative theory of DNA. There’s no doubt that the DNA
       was found, right?
                So that means that tomorrow you take out that same coin and you
       flip it 140 times. 139 times it’s still Jeffrey Pool.
                And the next day you take out that coin and you flip it
       140 times and 139 times it’s still Jeffrey Pool.

RP at 862-64. Defense counsel objected to the prosecution’s use of the analogy of a coin

flip. The trial court overruled the objection.

       The jury convicted Jeffrey Pool of two counts of first degree robbery, four counts

                                             13
No. 35296-0-III
State v. Pool


of second degree assault, and four counts of kidnapping in the first degree.

                                  LAW AND ANALYSIS

       On appeal, Jeffrey Pool assigns error to the trial court’s refusal to permit the jury

to hear evidence of the nature of Frank Wolf’s and Matthew Smith’s convictions. We

note that neither party presented evidence as to the nature of Frank Wolf’s conviction or

convictions, so we limit Pool’s assignment of error to contending that the trial court

should have allowed him to elicit, from law enforcement testimony, Smith’s convictions

being for kidnapping and robbery. Pool also assigns error to the trial court’s refusal to

preclude the prosecution from employing the coin flip analogy during closing. We

address the assignments in such order.

                       Smith Robbery and Kidnapping Convictions

       On appeal, Jeffrey Pool contends the trial court should have permitted the jury to

hear the identity of Matthew Smith’s crimes as being kidnapping and robbery because

such evidence related to the Cheney Police Department’s investigation of the Dollar Tree

Store robberies. At the same time, in his opening brief, Pool presents argument that the

nature of the crimes constituted permissible other suspect evidence and permissible

character evidence under ER 404(b). Nevertheless, Pool does not expressly assign error

to the trial court’s failing to permit the evidence as other suspect evidence or character

evidence.



                                             14
No. 35296-0-III
State v. Pool


       Before addressing the merits of Jeffrey Pool’s assignment of error, we review the

State’s contention that Jeffrey Pool may not forward this assignment on appeal. The

State claims Pool, under RAP 2.5(a), waived his argument about the evidence bar

because Pool never asked the trial court to be able to present testimony that labeled

Matthew Smith’s felonies. The State also contends that, to the extent Pool claims the

identity of the crimes constituted allowable other suspect evidence or character evidence,

Pool impermissibly changes his evidentiary theory of admissibility on appeal.

       We disagree with the State’s contention that Jeffrey Pool never sought to introduce

evidence of the identity of Matthew Smith’s convictions. During the pretrial argument

against the State’s motion in limine, Pool referenced the importance of the robbery and

kidnapping convictions of Smith in light of charges that Pool faced. Later, during trial,

when Pool’s counsel neared questioning Captain Richard Beghtol about the earlier

convictions, the State objected to questions about the nature of the convictions. Defense

counsel told the trial court that he intended to ask Beghtol to identify the crimes. Defense

counsel argued the relevance of the crimes’ identities.

       We agree with the State’s argument that Jeffrey Pool never sought introduction at

trial of the identity of the crimes as other suspect evidence. A party cannot change

theories of admissibility on appeal. State v. Mak, 105 Wn.2d 692, 718-19, 718 P.2d 407

(1986). We are uncertain as to whether Pool forwards, on appeal, the nature of the

crimes as other suspect evidence, but, if so, we decline to entertain such an argument.

                                            15
No. 35296-0-III
State v. Pool


Pool agrees he cannot change theories on appeal and does not argue any exception to the

rule of waiver to allow a change in his argument on appeal.

        On appeal, Jeffrey Pool may contend the trial court should have allowed

testimony, under ER 404(b), naming the crimes of Matthew Smith as kidnapping and

robbery. This evidentiary rule reads:

               Evidence of other crimes, wrongs, or acts is not admissible to prove
        the character of a person in order to show action in conformity therewith. It
        may, however, be admissible for other purposes, such as proof of motive,
        opportunity, intent, preparation, plan, knowledge, identity, or absence of
        mistake or accident.

ER 404(b). Nevertheless, Pool never forwarded this theory of admissibility before the

trial court.

        We still must decide whether the trial court should have allowed Jeffrey Pool to

inquire from Captain Richard Beghtol or other Cheney Police Department officers as to

the nature of Matthew Smith’s convictions. The trial court considered this evidence

relevant to the investigation of the Dollar Tree Store robberies. The trial court, however,

excluded the evidence, under ER 403, because of the undue prejudice to the State.

According to the trial court, Jeffrey Pool could impeach the integrity of the Cheney

Police Department’s investigation by introducing evidence that Matthew Smith was

convicted of felonies without naming the felonies.




                                             16
No. 35296-0-III
State v. Pool


       ER 403 declares:

               Although relevant, evidence may be excluded if its probative value
       is substantially outweighed by the danger of unfair prejudice, confusion of
       the issues, or misleading the jury, or by considerations of undue delay,
       waste of time, or needless presentation of cumulative evidence.

We review a trial court’s evaluation of relevance under ER 401 and its balancing of

probative value against its prejudicial effect or potential to mislead under ER 403 for an

abuse of discretion. State v. Russell, 125 Wn.2d 24, 78, 882 P.2d 747 (1994). We hold

that the trial court did not abuse its discretion when barring the identification of Matthew

Smith’s crimes because we do not consider such evidence as holding any relevance.

       Jeffrey Pool’s criminal trial encompassed his guilt or innocence of robbing the

Cheney Dollar Tree store and kidnapping its employees, not the thoroughness of the

police investigation of the crimes. Generally, law enforcement’s investigation lacks

relevance to guilt or innocence of the accused. State v. Edwards, 131 Wn. App. 611, 128

P.3d 621 (2006); State v. Johnson, 61 Wn. App. 539, 811 P.2d 687 (1991); State v.

Aaron, 57 Wn. App. 277, 787 P.2d 949 (1990). On appeal, Pool does not explain the

relevance of the Cheney Police Department’s investigation of the Dollar Tree Store

crimes to his guilt or innocence of the crimes other than perhaps contending that the

police should have questioned Matthew Smith further or extracted his DNA to compare

his genetic code to the DNA located on the knit cap because Smith possibly committed

the Cheney robberies. Nevertheless, Pool never suggested to the trial court that evidence


                                             17
No. 35296-0-III
State v. Pool


of Smith’s juvenile crimes should be allowed as other suspect evidence. On appeal, he

does not present any reason for us to allow him to raise this contention for the first time

on appeal.

                       State Mischaracterization of DNA Evidence

       Jeffrey Pool next assigns error to the prosecutor’s inclusion, in summation, of an

analogy to a coin toss in explaining the DNA’s likelihood ratio of 140 to 1. The State’s

attorney compared the chance of Jeffrey Pool committing the Dollar Tree store crimes as

flipping a coin one hundred and forty times. Pool’s face on the coin would appear one

hundred and thirty-nine times. On appeal, the State concedes error in the analogy. DNA

analysis does not convert to a percentage. The State argues that the error did not

constitute prosecutorial misconduct.

       To establish that a prosecutor committed misconduct during closing argument, the

accused must prove that the prosecutor’s remarks were both improper and prejudicial in

the context of the entire record and the circumstances at trial. State v. Thorgerson, 172

Wn.2d 438, 442, 258 P.3d 43 (2011). The prosecutor may not represent to the jury facts

not admitted into evidence. In re Personal Restraint of Glasman, 175 Wn.2d 696, 705,

286 P.3d 673 (2012). Once proved, prosecutorial misconduct is grounds for reversal

when there is a substantial likelihood the improper conduct affected the jury. State v.

Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).



                                             18
No. 35296-0-III
State v. Pool


      The State contends that, despite scientific error, the prosecution did not utter any

facts not in evidence. Instead, according to the State, the State's attorney misconstrued

the facts. We do not know whether to characterize a faulty analogy as an error of facts or

error of logic. But we need not render such an assessment, because Jeffrey Pool does not

show a likelihood that the error impacted the jury verdict. Pool claims prejudice but does

not explain how the prosecution's error caused prejudice. Strong evidence, including the

DNA evidence, supported the guilty verdicts.

                                     CONCLUSION

      We affirm all of Jeffrey Pool's convictions.

      A majority ofthe 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.


                                                 ~              1
                                                                    s.
                                             Fearin~

\VE CONCUR:




Pennell, A.CJ.


                                            19
