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                                                                                                BY
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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II

STATE OF WASHINGTON,                                                                 No. 43333 -8 -II
                                                                 I          Consolidated with No. 43433 -4 -II)


                                         Respondent,


         V.



DAVID DOYLE FLYNN,                                                             UNPUBLISHED OPINION




         HUNT, J. —     David Doyle Flynn appeals his jury trial conviction for unlawful possession of

a   controlled      substance ( methamphetamine)              with    intent to deliver.   He argues that the State


committed misconduct when it misstated the burden of proof in closing argument; he also

assigns error to the trial court' s overruling his objection to the State' s rebuttal argument and

denial   of   his   request    for   a curative   instruction.       In a pro se statement of additional grounds for

review' (     SAG),    Flynn also ( 1) contends that the trial court erred in denying his CrR 7. 8 motion

to dismiss his       conviction, (     2) challenges several of the trial court' s CrR 3. 6 suppression hearing

findings      of    fact and    conclusions       of   law,   and (   3)   contends that his trial counsel provided


ineffective assistance on several grounds. Flynn' s SAG issues do not merit relief. Agreeing that

the State committed prejudicial misconduct in closing argument, however, we reverse Flynn' s
1
    RAP 10. 10.
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



conviction for unlawful possession of a controlled substance with intent to deliver and remand

for retrial.

                                                         FACTS


                          I. TRAFFIC STOP; DWLS ARREST; METHAMPHETAMINE

           On October 13, 2011, Thurston County Deputy Sheriffs Carrie Nastansky and Ben M.

Elkins were on patrol when they were unable to read the license plate of an oncoming vehicle

driven by David Doyle Flynn. Nastansky turned the patrol car to follow Flynn. Failing to signal
100 feet before the turn, Flynn turned his vehicle into a driveway, got out, and started walking

toward the     residence.      Meanwhile, Nastansky had activated the patrol car' s lights and followed

Flynn into the     driveway.       Originally intending to cite Flynn for failure to signal,2 the deputies
arrested him for driving with a suspended driver' s license ( DWLS).

           Incident to his     arrest,   the deputies   searched   Flynn'   s person and    his       vehicle.   They found

drug related materials, including baggies containing a substance that field tested positive for
                                                                                                  3
methamphetamine;          50   or more small, unused       baggies;   and a    digital   scale.        After being advised

                      rights, Flynn told Elkins that the methamphetamine was for his personal use.
           Miranda4

of   his


                                                    II. PROCEDURE


                  State                  Flynn                        possession     of     a     controlled      substance,
            The           charged                with    unlawful




 methamphetamine, with intent to deliver. Flynn pleaded not guilty.


 a RCW 46. 61. 305( 2).

 3 The record is not clear about which items the deputies found in which places.

 4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).




                                                             2
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



                                                     A. Suppression Hearing
                                                                                                                               5
             Flynn    moved        to   suppress   the   evidence   found   on    his   person and        in his    vehicle,       arguing


that ( 1)    the traffic stop           was pretexual, (    2) the search of his person was- not permissible under

         6
                     3) the   vehicle search was         impermissible     under   Arizona         v.   Gant.7    Flynn' s motion did
Terry,       and (




not identify exactly what evidence he wanted the trial court to suppress or where the deputies had
discovered if.          The State responded that Flynn " had two baggies of methamphetamine, many


empty baggies          used    for packaging        controlled substances, and scales on                 his   person ";   but it did not


identify the evidence the deputies had found during the vehicle search or other evidence found

during       the   search of       Flynn'   s person.    Clerk' s Papers ( CP)         at   24.    Nastansky, Elkins, and Flynn

testified at this hearing.

                                                     1. Nastansky' s testimony

             At the suppression hearing, Nastansky testified that she had been on patrol with Elkins,

her field training            officer, "    look[ ing] for traffic       stops   and        anything     else    that [   came] to [ her]


attention,"        and running license plates to see if there was " any reason for [ her] to be able to stop

the    vehicle,"       such as the vehicle' s having been reported stolen or an expired registration.

Verbatim Report               of   Proceedings ( VRP) ( Dec. 19, 2011)            at    8, 10.      She had turned the patrol car

 around      to follow Flynn because               she   had been   unable   to   read       his   vehicle' s    license    plate.   Flynn




 5 Flynn also moved to suppress his statements to the deputies. The trial court denied this motion.
 On appeal, Flynn does not challenge the trial court' s admission of his statements.

 6
     Terry v. Ohio, 392 U.S. 1, 30 -31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 ( 1968).

 7 Arizona v. Gant, 556 U. S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 ( 2009).




                                                                     3
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



then " quickly accelerated and.turned into a driveway" without first activating his turn signal until
he   was   about    25 feet from the              driveway..             VRP ( Dec. 19, 2011)           at   10.    Nastansky observed

Flynn' s turn      signal      flash twice before he turned.                         She turned on her emergency lights as she

followed Flynn into the driveway, intending to initiate a traffic stop for failure to signal 100 feet

before turning. But Flynn got out of his vehicle and started walking towards the residence.

           Elkins " yelled" at Flynn, who returned to the passenger side of his vehicle and started to

                                                                Flynn for his license,        registration, and       insurance.     Flynn,
smoke      a cigarette.        Nastansky         asked



                                                                                that his driver'   s   license     was suspended.     VRP
who was "     very     nervous and             fidgety,"        responded




 Dec. 19, 2011)          at   14.   After confirming that Flynn' s license was suspended and that there were

also outstanding warrants for his arrest, Nastansky arrested him for driving with a suspended
license.


           When    Nastansky            searched        Flynn' s       person       incident to his    arrest, she   found ( 1) "   a larger


baggie containing             several small, about              two- by- two- inch       sizes of ...   baggies," these baggies were


unused,     VRP ( Dec. 19, 2011)                  at    15;      and (   2) "   another larger baggie containing a crystallized

 substance"     that     she recognized as methamphetamine,                             VRP ( Dec. 19, 2011)          at   17.   She further


testified that     she   did    not     find   a scale " on       his    person."      VRP (Dec. 19, 2011) at 17.


                                                                2. Elkins' testimony

           Elkins also testified that Flynn had failed to signal within 100 feet of his turn into the

 driveway.      VRP ( Dec. 19, 2011)                   at   40.    Elkins similarly described the evidence that Nastankky

 had found       on      Flynn'     s    person: (      1) "[     a]     few    grams"     of what was later determined to be


 methamphetamine, and ( 2) small baggies commonly used to package methamphetamine " for sale

 or use."     VRP ( Dec. 19, 2011)                     at   45.     Elkins also testified that he searched Flynn' s vehicle,




                                                                                0
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



apparently incident to arrest; but he was not asked and did not mention what items he found in
the   vehicle.       Similarly, Elkins did not mention where he had found the scale because neither
counsel asked about it.


                                                   3. Flynn' s testimony


          Flynn testified that immediately before his arrest, he had been driving around to find

some tires a friend had seen for sale on the side of the road and had pulled into the driveway to

ask about       the tires.    Flynn had seen the patrol car pass him and then turn around, at which point

he had been          about   to turn into the    driveway.      He   could not recall "[     e] xactly when" he signaled

before turning into the driveway, but he stated that the signal " blinked a couple of times" before

he    started   to   slow    down for the turn. VRP ( Dec. 19, 2011)           at   74.    Flynn denied having seen the

patrol car' s flashing lights until he was out of his vehicle " just starting [ his] conversation with

the   lady    of   the   residence."   VRP ( Dec. 19, 2011) at 74.


          Flynn asserted that when he asked the deputies why they had pulled in behind him, they

did    not    mention       his failure to    signal;   nor   did they ticket him for        failing   to   signal.   He also


asserted that he was away from his vehicle with no access to it when the deputies approached
him     and   that    he did   not consent      to their searching his     vehicle.       Flynn admitted that he did not


have a valid driver' s license at the time of the stop,, that he had nine prior convictions for driving

 without a      license,     and   that he   had two outstanding      arrest warrants at     the time   of   the stop.   Flynn


 also admitted that the officers had found drugs and the empty bags found on his person.

                                                   4. Argument and ruling

             Flynn argued that the vehicle stop was improper, that it was a " fishing expedition" and a

 pretexual stop, and that the trial court should suppress his statements and the evidence seized


                                                                 E
Consolidated Nos. 43333 -8 -II and 43433 -4 -11



from both his      person and      his   vehicle.   VRP ( Dec. 19, 2011)        at   106. The State conceded that the


vehicle search was not lawful and, therefore, that any evidence seized from the vehicle was not

admissible.       But the State argued that the stop was lawful to enforce traffic laws, that the search

of Flynn' s person was lawful incident to his arrest for DWLS, that the evidence seized from

Flynn' s person was admissible, and that his statements were voluntary and also admissible.

        Neither party specifically identified for purposes of the suppression hearing what

evidence   had been        seized   from Flynn' s     person.        The trial court orally suppressed the evidence

from the vehicle search, and ruled admissible the evidence from the personal search and Flynn' s

             8;
statements        it   noted   that "   discovery   of [ the]   drugs" was admissible, without mentioning any


other   specific       evidence.    VRP ( Dec 19, 2011)          at    119.    One of the trial court' s later written


findings, however, stated that Nastansky had found the baggie containing the smaller baggies

and another       bag " which      contained methamphetamine"             on   Flynn'   s person.   CP at 44 ( Finding of

Fact ( FF) 1. 12).


                                                           B. Trial


                                                1. Nastansky' s testimony

         At trial, Nastansky testified that after she and Elkins arrested Flynn, she searched Flynn

and found ( 1) a larger baggie containing 50 to 100 smaller, two -inch by two -inch plastic baggies;

 2) two baggies         of what appeared       to be "   residue powder "; (     3) a glass pipe with " residue on it ";




 8 The trial court did not mention the scale in the suppression order' s findings or conclusions of
 law.   In light of Nastansky' s suppression hearing testimony that she did not find a scale on
 Flynn' s person, however, we infer that it must have appeared to the trial court that the scale was
 among the items seized from Flynn' s truck and, therefore, suppressed along with the other items
 from the truck.




                                                                 n
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



and (   4)    a   digital    scale with " residue"   on       it. VRP ( Jan. 9, 2012)       at   34, 36, 37.     She also testified


                                      Flynn had                 that he     was   carrying drugs.      Flynn did not object to
that   during          the   search               admitted




this testimony.

             On        cross -examination,      Flynn attempted to impeach Nastansky with her contrary

suppression hearing testimony that she did not find the digital scale on Flynn' s person.

Acknowledging this previous contrary testimony, Nastansky responded that when she later read
                                                                                                             9
her    report,         she realized she     had found the digital           scale on   Flynn'    s person.       Nastansky further

testified, however, that she did not recall finding any cash, notes, or a cellular telephone on Flynn

when she searched him.


                                                         2. Elkins' testimony

             Elkins similarly testified that              when        Nastansky      searched     Flynn,     she   had found: ( 1)


 several [ small, unused] plastic               bag[ gie] s "; ( 2) three baggies " that had a little bit of residue with

them that [ was]              consistent with methamphetamine"; (                 3) two   more   baggies containing "     a shard




crystal substance" that field tested positive for amphetamines; and ( 4) a digital scale. VRP ( Jan.

9, 2012)          at   78, 79.   Elkins also testified that Flynn told him that the drugs were for his " personal

use."        VRP ( Jan. 9, 2012) at 82. Elkins further stated that the items they found on Flynn' s person

were " consistent with                the distribution   of   that   product."    VRP ( Jan. 9, 2012) at 82.




 9 The State attached a copy of Nastansky' s October 13, 2011 incident report to its response to
 Flynn' s CrR 7. 8 motion. In that report, Nastansky states that she found the digital scale in the
 same pocket in which she found the two baggies containing a substance that later tested positive
 for methamphetamine.




                                                                        7
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



          On cross -examination, Elkins admitted that he had not mentioned the digital scale during

the previous hearing when counsel asked what items he had observed Nastansky find when she
searched    Flynn.      Elkins explained, however, that no one had specifically asked him about the

digital   scale.   Elkins conceded, however, that drug users, as well as distributors, may also carry

scales.



                                                       3.    Other testimony

          The State' s forensic specialist testified that the substance found in the baggies and on the

scale was methamphetamine. Flynn called no witnesses.


                                                   4. Jury instructions

          The trial court instructed the jury on unlawful possession of a controlled substance with

intent to     deliver    and,   at Flynn' s request, the lesser included offense of simple unlawful


possession of a controlled substance.                  The trial court also instructed the jurors that it was their


       to apply the law              stated in the                     instructions   and   that   they " must disregard any
duty                            as                          court' s




remark, statement, or argument that is not supported by the evidence or the law in [ the court' s]

instructions. CP at 53 ( Jury Instruction 1).

          The trial court instructed the jury about the State' s burden of proof and the reasonable

doubt standard as follows:


                    The defendant has           entered a plea of not           guilty.     That plea puts in issue
           every element of each crime charged. The State is the plaintiff and has the burden
           ofproving     each element         of the    crime     beyond    a reasonable     doubt. The defendant

           has no burden ofproving that a reasonable doubt exists as to these elements.
                    A    defendant       is    presumed           innocent.        This     presumption        continues


           throughout the entire trial unless during your deliberations you find it has been
           overcome by the evidence beyond a reasonable doubt.
                  A reasonable doubt is one for which a reason exists and may arise from
           the evidence or      lack of evidence. It is           such a   doubt   as would exist     in the   mind   of a
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



            reasonable person after fully, fairly, and carefully considering all of the evidence
            or lack of evidence. If,from such consideration, you have an abiding belief in the
            truth of the charge, you are satisfied beyond a reasonable doubt.

CP    at   56 ( Jury Instruction 3) (        emphasis added).            The trial court did not, however, instruct the jury

about      the meaning     of   the   phrase "   abiding belief. "10           See CP at 56.

                                                 5.        Closing arguments; verdict

            In its closing argument, the State reiterated that it had the burden to prove every element

of the charged crime beyond a reasonable doubt. But it also repeatedly argued that there was no

evidence       contradicting         certain evidence.             The State contended that the core issue was whether


there      was evidence     that Flynn intended to deliver the drugs.                      In particular, the State argued that


the scale and the unused baggies proved that Flynn possessed the drugs with intent to deliver.

            The State further argued that Flynn had not presented any explanation for carrying the

baggies on his person other than the intent to deliver that their sheer number suggested:


                        So you' re being given a couple red herrings and I' d ask you to be very
            careful     about   following      those         red   herrings, because the Defense —this evidence
            was    found   on   his    person.        It   was   found   on    him.   They have to have some way to
             explain —some           out, some    way to         argue   to    you reasonable     doubt.   And I submit

            that they' re doing that by trying to paint the officers as being inconsistent or
             making              trying to point to evidence that isn' t there. But it isn' t
                         mistakes,      or

             necessary. The bottom line is that Mr. Flynn had these things on his possession,
             on   his   person.There' s no indication that they were anybody else' s but his.
                    There' s indication that he' s a meth user, but the big thing is these baggies.
            There' s a lot of them. They' re ready to be filled, and there' s no explanation why

            you would have these ifyou weren' t going to deliver.

VRP ( Jan. 10, 2012)            at   137 -38 ( emphasis            added).     Flynn did not object at this time.




 io
      The   parties'    proposed       instructions, if any,           are not part of    the   record on appeal.    Thus, we do
not    know       whether either      party   asked        the trial   court   to define " abiding belief' for the   jury.
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



          Instead, in his closing         argument,       Flynn   challenged        the State' s "   red   herring" 11 argument as

an attempt to shift the burden of proof to him:

                       Ladies and gentlemen, just because something smells fishy doesn' t make
          it   a red   herring.      There   are all   kinds   of   things that smell.         Red herrings are only
          one    of    them.    And in this       case,   there   is    more    than   one    explanation.      And, you

          know, the prosecutor was suggesting to you that the Defense has to explain
          something, trying to shift the burden over to our side, to explain and make up for
          some things that they couldn' t explain.

VRP (Jan. 10, 2012) at 139 ( emphasis added).


          Flynn argued in closing that although the jury could convict him of the lesser included

offense of possession, the State had failed to show that he possessed the drugs with intent to

deliver   and,   therefore, the       jury   should acquit     him      of   that   charge.   In support of convicting him of

only the lesser included possession offense, Flynn focused on the deputies' previous inconsistent

testimonies about whether they had found a digital scale on his person; and he argued that a drug

user may also carry scales and packaging for reasons not related to distribution, such as personal

use.



          In rebuttal, the State denied attempting to shift the burden of proof to Flynn, reiterating

that it was required to prove each element of the offense beyond a reasonable doubt.

Nevertheless, the State again highlighted Flynn' s failure to provide an explanation for the empty

baggies found on his person:


                       There is      still no reasonable explanation            for these baggies. And this is the

           smoking        gun   in this   case.     The Defense can explain away a lot of things, but
           there' s     still   no   reasonable     explanation why a [ drug] user would have these

           baggies. And I would ask you to consider this evidence with a lot of importance.
           There'      s no explanation.      There' s no reasonable doubt.


 11
      VRP ( Jan. 10, 2012) at 137.




                                                                       10
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



                 You have a jury instruction, which I don' t know that it' s extremely
        helpful, but it talks        about reasonable         doubt. [ Defense counsel] used a phrase,
                                                              not the definition of reasonable doubt. A
          beyond     a moral    certainty," but that'     s

         reasonable doubt, according to jury instruction number three, is one for which a
         reason exists and      may    arise     from the     evidence    or    lack   of evidence.     It' s such a
         doubt as would exist in the mind of a reasonable person after fully, fairly and
         carefully considering        all   of   the   evidence     or   lack    of evidence.        If, from such
         consideration, you have an abiding belief in the truth of the charge, you' re
         satisfied beyond a reasonable doubt.

                It doesn' t say anything about moral certainty.   It does talk about an

         abiding belief in the truth of the charge. And that' s tough language. That' s

         abiding belief. What' s an abiding belief?                 I sometimes hear from a jury, well, we
         think you it did —this is after an acquittal.               We think he did it; we just don' t think
         there is enough proof beyond a reasonable doubt. I submit to you, ifyou think he
         did it, that' s an abiding belief in the truth of the charge.

VRP ( Jan. 10, 2012) at 151 -52 ( emphasis added).


         At this point, Flynn objected, arguing that the State had " misstate[ d] the jury instruction"

and " the law in the state of Washington" and that it was also attempting to shift the burden of

proof   to the defense.    VRP ( Jan. 10, 2012)          at   152. Flynn asked the trial court to give a curative


instruction. The trial court responded:


                 I   guess     what    I heard is [ the         State]   reading from the instruction on
         reasonable doubt, and I would ask the jury to look at that instruction when you
         attempt to understand the burden of proof in this case.
                 In terms       of   shifting the burden here, I' ve heard                a   lot   of argument.   1

         haven' t heard anything from the State that asks the jury to shift the burden to the
         Defense. So I'm going to overrule the objection to that.

VRP ( Jan. 10, 2012)      at   152 -53 (   emphasis added).         The State continued its rebuttal as follows:


                  So ifyou have, an abiding belief in the truth of the charge, that means that
         you   believe that he did it. You' ve heard all of the evidence, and after hearing all
         the evidence, if it' s your belief that he did this, you' ve got an abiding belief in the
         truth of the charge, the charge being possession with intent to deliver.
                 If you believe, having heard the evidence, that you think he was planning
          to deliver this methamphetamine based on those baggies and the other evidence




                                                               11
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



         and testimony, I' d ask you to come back with a verdict of guilty on the original
         charge, which is possession with intent to deliver. Thank you.

VRP (Jan. 10, 2012) at 153 ( emphasis added).


         The jury found Flynn guilty of unlawful possession of a controlled substance with intent
to deliver.


                                                    6. CrR 7. 8 motion


         Pro se, Flynn filed a CrR 7. 8 motion to vacate his conviction on grounds of fraud,

misrepresentation, or misconduct of an adverse party based on the deputies' testimonies differing

between the    suppression        hearing   and   the trial.     The trial court denied the motion. Flynn appeals


his conviction and the trial court' s denial of his CrR 7. 8 motion, which we have consolidated.

                                                       ANALYSIS


                                           I. PROSECUTORIAL MISCONDUCT


         Flynn argues that the State misstated the law and " minimized" the burden of proof when

it argued in closing that if the jury merely thought Flynn was guilty, that was an " abiding belief

in the truth   of   the   charge."   Br.   of   Appellant   at   13.   He further argues that this error was " further


exacerbated by the court' s somewhat cavalier response that implie[ d] that what the prosecutor
argued   is   what   the   jury   instruction     says or means."        Br.   of   Appellant   at   13.   We hold that the


                                   created reversible prejudicial          error: (   1)   the State' s scant evidence of
 following    circumstances




 intent to deliver; ( 2)    the trial court' s overruling Flynn' s objection to the State' s closing argument

 misstatement of reasonable doubt and attempt to shift the burden of proof (by asserting that the

 defense had failed to         provide "    a reasonable explanation why a [ drug] user would have these




                                                                 12
Consolidated Nos. 43333 -8 -II and 43433 -4 -II


             12;
baggies ")            and (   3)   closing argument as a whole, including Flynn' s objection and the trial

court' s     response.               Accordingly,           we      reverse     Flynn' s       conviction     for     possession     of




methamphetamine with intent to deliver.


                                                          A. Standard of Review


           A prosecutor is a quasi-judicial officer of the court, charged with the duty of ensuring that

an accused receives a                fair trial. See State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 ( 1968),


cent.   denied, 393 U. S. 1096 ( 1969);                    State v. Boehning, 127 Wn. App. 511, 518, 111 P. 3d 899

 2005).          To     prevail     on   a   claim     of    prosecutorial      misconduct,         Flynn   must     show "`   that the


prosecutor' s conduct was both improper and prejudicial in the context of the entire record and

the   circumstances at             trial. "' State   v.   Magers, 164       Wn.2d 174, 191, 189 P. 3d 126 ( 2008) ( quoting

State   v.   Hughes, 118 Wn.                App.   713, 727, 77 P. 3d 681 ( 2003), review denied, 151 Wn.2d 1039


 2004)).         Flynn     must      demonstrate       prejudice
                                                                      by    proving that "` there is a substantial likelihood


 that] the instances               of misconduct           affected   the   jury' s   verdict. "'    Magers, 164 Wn.2d at 191


 alteration        in   original) (   quoting State         v.   Pirtle, 127 Wn.2d 628, 672, 904 P. 2d 245 ( 1995),                cent.




denied, 518 U. S. 1026 ( 1996)).

             A   prosecutor' s        argument       misstating, minimizing,            or "   trivialize[ ing]"    the law regarding

the burden         of proof can          be improper.            See State v. Johnson, 158 Wn. App. 677, 685, 243 P. 3d

 936 ( 2010),           review     denied, 171 Wn.2d 1013 ( 2011).                    But we review a prosecutor' s allegedly

 improper        remarks           during    closing       argument "       within the     context of the prosecutor' s           entire


 argument,         the     issues     in the       case,    the    evidence     discussed in the         argument,      and the jury


 12 VRP (Jan. 10, 2012) at 151.




                                                                        13
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



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

132 Wn.2d 529, 561, 940 P. 2d 546 ( 1997),                 cert.   denied, 523 U. S. 1007 ( 1998)).        We review for


an abuse of discretion a trial court' s ruling on alleged prosecutorial misconduct during closing

argument.    State    v.   Stenson, 132 Wn.2d 668, 718, 940 P. 2d 1239 ( 1997), cert. denied, 523 U.S.


1008 ( 1998).


                                                   B. Misstatement of Law


          Flynn argues that the State' s rebuttal argument misstated the law, in particular the

prosecutor' s   misstating the           reasonable    doubt   standard   by   explaining "       an abiding belief in the

truth of the charge" as " if you think he did it, that' s an abiding belief in the truth of the charge."

VRP ( Jan. 10, 2012)            at   151, 152.    We agree with Flynn that the State' s analogizing an " abiding

belief' to merely " think[ ing]"            the defendant is guilty is a serious misstatement of the law, VRP

 Jan. 10, 2012) at 152, in that a person can " think" a defendant is guilty yet also understand that

the State has failed to prove all elements of the charged crime beyond a reasonable doubt.

          Flynn   also     asserts      that "   the prosecutor' s misconduct minimized the State' s burden of

proof and    in the   process ensured            that Flynn did    not receive a   fair trial."    Br. of Appellant at 15.


But he fails to develop this argument like he did for his reasonable doubt misstatement argument.

We note, however, as defense counsel argued below in objecting to the State' s rebuttal argument,

that the prosecutor improperly shifted the burden of proof when he underscored to the jury that

Flynn had failed to offer an innocent explanation for his possession of so many baggies, which

the prosecutor further argued, therefore, proved Flynn' s intent to deliver beyond a reasonable

 doubt.




                                                                  14
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



                                                   C. Prejudice


        We next address whether the prosecutor' s misstatements of the law were so prejudicial in

the context of the whole trial as to create a substantial likelihood that they affected the jury' s

verdict. Flynn contends that the prosecutor' s misstatements were exacerbated by the trial court' s

dismissive comments in overruling his objection and by its refusal to give the jury a curative

instruction. We agree.


          Although Flynn admitted that he had drugs and baggies on his person, he never similarly

admitted    any intent to deliver.    Moreover, the State' s only evidence of intent to deliver was

circumstantial at best, limited to Flynn' s possession of multiple smaller, unused baggies and the

digital scale, about which the deputies had presented inconsistent testimonies, including an initial

denial that it had been found on Flynn' s person; and the officer who searched Flynn incident to

his arrest had found no other indicators of intent to sell drugs such as cash, notes, or cellular

telephone. This relative weakness of evidence of intent to deliver amplified the prejudice created


by the prosecutor' s misstatements of the law, in particular his ( 1) misstatement of what it takes

for a jury to have a reasonable doubt, and ( 2) repeatedly emphasizing that Flynn had failed to

offer evidence explaining certain evidence, such as possessing the baggies, a burden that the law

did   not place   on   Flynn.   See State   v.   Deer, 175 Wn.2d 725, 733, 287 P. 3d 539 ( 2012) ( " The


defendant bears    no    burden to disprove the      elements of a crime. "),     cert. denied, 133 S. Ct. 991


 2013).


          Other trial   circumstances   further      amplified    this   prejudice.   Although the trial court


 instructed and the parties repeated that the State was required to prove each element beyond a

 reasonable doubt, the State nevertheless strongly argued to the jury that they need only " think"



                                                         15
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



that Flynn was guilty in order to meet this required standard of proof. The trial court could have

cured these misstatements of the law with the cautionary instruction that Flynn requested, but it

did   not    do   so.   On the contrary, the trial court' s remarks while overruling Flynn' s objection

inadvertently suggested to the jury that the State' s arguments had been correct statements of the

law, when actually they had not.

            We acknowledge the well -
                                    settled presumption that the jury followed the trial court' s

instructions, including the standard instruction given here that the jury should not take counsel' s

argument as statements of the law but rather should rely on the trial court' s written instruction.

State   v.   Russell, 125 Wn.2d 24, 84 -85, 882 P. 2d 747 ( 1994) (       citing State v. Swan, 114 Wn.2d

613, 661 -62, 790 P. 2d 610 ( 1990),       cent.   denied, 498 U. S. 1046 ( 1991)),   cent. denied, 514 U.S.


1129 ( 1995).       But here, the cumulative effect of the following circumstances created a substantial

likelihood that the prosecutorial misconduct affected the jury' s finding Flynn guilty of unlawful

possession of a controlled substance with intent to deliver, despite the trial court' s later proper

instructions: ( 1) the      scant evidence of   intent to deliver, ( 2) the prosecutor' s misstatements of the


law in closing argument, and ( 3) the trial court' s refusal to correct these misstatements and its

comments that it saw nothing wrong with the prosecutor' s characterization of the burden and
                       13
standard      of proof.       Therefore, we reverse Flynn' s conviction for possession with intent to

 distribute.




 13 If we presume that the jury followed the trial court' s instructions on the law, then it is
 reasonable to conclude that the jury also likely followed the trial court' s ratified version of the
 law presented by the prosecutor on these critical burden and standard of proof points.




                                                          16
Consolidated Nos. 43333 -8 -II and 43433 -4 -II


                                                                 ISSUES14

                                                     II. SAG


          Flynn challenges the trial court' s CrR 3. 6 ruling, arguing that substantial evidence does

not support its findings of fact 1. 4, 1. 5, and 1. 14 and that the findings do not support conclusions

of law   CL 2. 2, 2. 3, 2. 6,    and   2. 8.   We disagree.


           We review a trial court' s denial of a CrR 3. 6 suppression motion to determine whether

substantial evidence supports the trial court' s challenged findings of fact and, if so, whether the

findings   support   the trial    court' s conclusions of        law."   State v. Cole, 122 Wn. App. 319, 322 -23,

93 P. 3d 209 ( 2004).        Substantial evidence is evidence in sufficient quantity to persuade a fair -

minded person of the truth of the finding. State v. Barnes, 158 Wn. App. 602, 609, 243 P. 3d 165

 2010).    We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses,

and persuasiveness          of   the   evidence.    State   v.   Thomas, 150 Wn.2d 821,          874 -75, 83 P. 3d 970


 2004),    abrogated in part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct.

1354, 158 L. Ed. 2d 177 ( 2004).


          Flynn challenges the following CrR 3. 6 findings of fact:

          1. 4     After turning around to catch up to the vehicle, Deputy Nastansk[ y]
          observed    the   vehicle accelerate,       then turn into     a private   driveway.   The vehicle' s

          turn signal was not activated 100 feet prior to making the turn, and only blinked
          twice before turning;




14 Because we reverse Flynn' s conviction based on prosecutorial misconduct in closing
argument, we need not address his SAG claim that the trial court erred in denying his CrR 7. 8
motion to vacate based on other alleged prosecutorial misconduct in offering the digital scale
into evidence at trial. Similarly, we need not address his other SAG claim that trial counsel
rendered ineffective assistance in refusing to investigate or to obtain evidence Flynn had
discussed with him, failing to interview witnesses, and failing to object to admission of the scale
into evidence.




                                                                 17
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



          1. 5    Deputy Nastansk[ y] activated her emergency lights prior to the driver
          exiting the vehicle;

          1. 14      Neither     Deputy Nastansky [ n] or Deputy Elkins was familiar with the
          defendant, or had any reason to suspect that he was engaged in criminal activity
          other than the traffic violation for failing to signal 100 feet prior to turning.

CP   at   44.      Nastansky' s     and   Elkins'     suppression hearing testimonies support each of these

findings:        Nastansky testified that ( 1) after she turned her patrol car around, Flynn accelerated

and turned into a driveway after activating his turn signal approximately 25 feet before the turn;

 2) she activated her emergency lights just as Flynn was getting out of his car; and ( 3) she knew

nothing about Flynn when she and Elkins stopped him, which testimony Elkins corroborated.

Furthermore, there was no evidence that, at the time of the traffic stop, either deputy suspected

Flynn of any criminal activity, other than his failure to signal properly. That Flynn' s suppression

hearing testimony differed to some degree ( on the factual issue of where the digital scale was

found) does not undermine the trial court' s findings of fact about the officers' reasons for the

                         leave               credibility determinations to the trial                   See Thomas, 150
stop because        we             witness                                                    court.




Wn.2d at 874 -75.


          Flynn      also   challenges    four   of   the trial   court' s conclusions   of   law.   First, he challenges


conclusion of        law 2. 2: "    Deputy Nastan[ s] ky had reasonable suspicion to stop the defendant for

violating RCW 46. 61. 305."            CP at 45. RCW 46. 61. 305( 2) provides:


          A signal of intention to turn or move right or left when required shall be given
           continuously during not less than the last one hundred feet traveled by the vehicle
          before turning.

Finding     of    fact 1. 4 —that    Nastansky observed Flynn failed to signal at least 100 feet before the

 turn— supports       this conclusion of law.




                                                                  18
Consolidated Nos. 43333 -8 -II and 43433 -4 -II



            Second, Flynn          challenges conclusion of            law 2. 3: "    The defendant was required to stop, to

              himself                   his   current address, pursuant              to RCW 46. 61. 021."        CP   at   45.   RCW
identify                   and give




46. 61. 021 ( 1)       provides, "    Any person requested or signaled to stop by a law enforcement officer

for   a   traffic infraction has       a   duty   to stop "; and RCW 46. 61. 021( 3) provides that anyone an officer


stops to investigate for a traffic infraction " has a duty to identify himself or herself and give his

or    her   current address"         if the   officer requests such          information.       The findings of fact, especially

finding of fact 1. 14, establish that the deputies stopped Flynn for a traffic infraction; thus, the

law required Flynn to stop and to provide his address and identification.

             Third      and   fourth, Flynn       challenges conclusion of             law 2. 6, " The deputies' search of the


defendant'         s person was a valid search               incident to     arrest "; and conclusion of         law 2. 8, "     Deputy

                       traffic stop of the defendant was              not a pretext    stop."    CP   at   45. Flynn contends that
Nastansky' s

because the officers admitted that they were looking for reasons to pull over vehicles, their

stopping his vehicle was pretextual and the resulting search incident to arrest was therefore not

valid.       Neither the law          nor   the   facts     support   this   contention.    An illegal pretextual stop is one

made        to "   accomplish an       impermissible          ulterior motive."        State v. Ladson, 138 Wn.2d 343, 354,


355 -56, 979 P. 2d 833 ( 1999).                   An   officer can,      however,       conduct    an   investigative stop " if the


 arresting officer can attest to specific and objective facts that provide a reasonable suspicion that

 the person stopped has committed or is about to commit a crime, "15 based on what the officer

 knew       at   the   start of   the stop.   State    v.   Lee, 147 Wn.      App.     912, 917, 199 P. 3d 445 ( 2008),          review




 denied, 166 Wn. 2d 1016 ( 2009). Here, the findings support the trial court' s conclusions that the




 is
      State v. Hopkins, 128 Wn. App. 855, 862, 117 P. 3d 377 ( 2005).



                                                                        19
Consolidated Nos. 43333 -8 -II and 43433 -4 -II


                                                                       16
deputies   lawfully   stopped    Flynn for    a   traffic infraction         and then lawfully arrested him for

driving without a valid driver' s license.

        We reverse the unlawful possession of a controlled substance with intent to deliver

conviction and remand for retrial.


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

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

2. 06. 040, it is so ordered.
                                                                  7




                                                                            AY   a'




                                                            Hunt, J.




 16 That the deputies were on routine patrol, running vehicle plates, and " looking for any reason to
 pull a vehicle over,"   did    not make   this stop   unlawful under       the       circumstances   here. SAG at 6.




                                                          20
