IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                    No. 73262-5-1          ^
                                                                               or

                      Respondent,                       DIVISION ONE


              v.                                        UNPUBLISHED OP@IOfif§
GARY DARYLL BENTLEY, JR.,

                      Appellant.                        FILED: July 25, 2016


      Appelwick, J. — Bentley appeals his conviction for assault in the third

degree and possession of a stolen vehicle. He contends the prosecutor engaged

in misconduct by making improper comments during closing argument. We affirm.

                                      FACTS


      On August 26, 2014, Gustavo Pena was preparing to leave his Seattle

home for a vacation. His house is across the street from a baseball playfield. He

noticed a person sitting across from his house on the bleachers of the baseball

field looking straight at his house. Pena was concerned, because the bleachers

did not face his house and the person was looking attentively at his house anyway.

Pena observed the individual for 20 to 30 minutes. He noticed that the individual

was an African American man, between the age of 30 to 40, with a shaved or bald

head, and a goatee.

       Pena was concerned about the man, but needed to leave his house to catch

his flight. Pena left his house with two large suitcases and got into a taxicab. The

man was still sitting across the street from Pena's house when he left. Two days
No. 73265-2/2




later, while he was in Columbia, Pena received a call from a neighbor and learned

that his home had been burglarized. Pena's neighbor also informed him that his

2006 Land Rover1 was missing from his driveway. Pena kept a set of spare car

keys in his house.

       On August 29, 2014, Deputy Christopher Dearth was on patrol. He learned

that an older Land Rover had been reported stolen. Toward the end of Deputy

Dearth's shift another officer broadcasted that he saw a vehicle matching the

description of the stolen vehicle parked on the side of a road. Deputy Dearth went

to investigate.

       When he arrived, Deputy Dearth confirmed that the Land Rover was the

vehicle that had been reported as stolen. William Juell was sitting in a truck behind

the Land Rover. Gary Bentley was getting into the driver's seat of the Land Rover

and Russell Bentley2 was standing outside on the passenger side of the Land

Rover. Juell had stopped to help Russell and Bentley, because he saw the Land

Rover stalled in the middle of the road. The vehicle had run out of gas, and Juell

took them to get gas.

       Deputy Dearth briefly spoke to Juell. Then, Deputy Dearth engaged Russell

and Bentley in casual conversation. Deputy Dearth wanted to wait until additional

backup arrived before confronting the men about the stolen vehicle.             After


       1 The vehicle is referred to as both a Land Rover and a Range Rover
throughout the record. Because Pena identified his vehicle as a Land Rover and
because there is no contention that the vehicle in question is not Pena's, we refer
to the vehicle as a Land Rover.
       2 Russell is Gary's uncle. We refer to Russell by his first name for the sake
of clarity. No disrespect is intended.
No. 73265-2/3




additional officers arrived, Deputy Dearth announced that Bentley and Russell

were under arrest, because the car was stolen.        Deputy Dearth attempted to

handcuff Bentley.    A struggle ensued and Bentley struck Deputy Dearth and

another officer. The officers were eventually able to take Bentley into custody.

       The King County Sheriff's Office notified Pena that his vehicle had been

located. Pena returned from Columbia on September 9 and went to the SeaTac

Police Department to retrieve his car. A detective showed Pena a photo lineup of

six pictures. He asked Pena if he could identify the man who was watching his

house the day he left for his trip. Pena could not identify him.

       On September 4, 2014, the State charged Bentley with two counts of

assault in the third degree for assaulting two police officers and with possession of

a stolen vehicle. Pena testified at trial. Pena testified to the physical description

of the man who had been watching his house on the day he left for his vacation.

Later during his testimony, the State asked Pena if he found "something" in his

house when he returned home. Pena indicated that he did find something in his

house. Bentley immediately objected, asserting that the line of questioning was

irrelevant.   The trial court asked the State where the line of questioning was

headed. The State responded that facial hair had been found at the house.

Outside of the presence of the jury, the State explained that facial hair was found
in the bathroom sink in Pena's house and that it could be from an African American

individual. The State explained that this was relevant because the hair could
No. 73265-2/4




belong to the African American person Pena saw watching his house. Bentley's

counsel responded:

      [Hje's not being charged with burglary. I don't like the entire line of
      inquiry into the burglary. I know that there was a burglary, that's how
      the vehicle was presumably stolen, so I can't really object to the
      existence of the burglary, but I feel like we're getting too deep into
      the facts of the burglary and not into the actual charge that he's
      charged with. Clearly the State wants to infer or imply that Mr.
      Bentley was the burglar as well and I think that's unfair, given that
      Mr. Pena can't identify him as the burglar. It's just piling on
      inferences upon inferences that actually don't lead anywhere, but it
      makes it look like the State has further evidence somehow that Mr.
      Bentley was the burglar but just hasn't charged him. So I think it's
      unfair and prejudicial to get too far into the burglary.

The trial court sustained the objection, noting that Pena did not have sufficient

foundational knowledge regarding the facial hair. The court further noted that if

there was any minor probative value it was outweighed by confusion of the issues

and prejudicial effect under ER 403.

       During closing argument, the prosecutor reviewed Pena's testimony,

including his testimony about the physical description of the individual who had

been watching Pena's house:

      And he described an African American male with a balding head, a
      goatee and no shirt, somewhat muscular build. A person not unlike
      the defendant.     Now it's true that Mr. Pena could not pick him
       individually out when he got back three or four weeks later and was
       shown some pictures, but you recall he said he was probably at a
       distance from here to the door.        But got the general physical
       description, and we know it wasn't a female that was watching the
       house, it wasn't a Hispanic person with long hair -

At that point, Bentley objected on the basis of relevance noting that the identity of

the burglar does not have anything to do with Bentley. The trial court overruled

the objection and stated that Bentley would have the opportunity to make a counter
No. 73265-2/5




argument.   The prosecutor continued, noting that two days after Pena left he

received a call that his house had been burglarized.

      The jury found Bentley guilty as charged. Bentley appeals.

                                  DISCUSSION


      Bentley argues that the prosecutor engaged in prosecutorial misconduct

during closing argument. Prosecutorial misconduct may deprive a defendant of

his right to a fair trial. State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213

(1984). An appellant claiming prosecutorial misconduct must show both improper

conduct and resulting prejudice. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940

(2008). Prejudice exists onlywhere there is a substantial likelihood the misconduct

affected the jury's verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221

(2006). A prosecutor has wide latitude in closing argument to draw reasonable

inferences from the evidence and to express such inferences to the jury. State v.

Boehninq, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).

      A prosecutor's comments during closing argument are reviewed in context

of the total argument, the issues in the case, the evidence addressed in the

argument, and the jury instructions. McKenzie, 157 Wn.2d at 52. It is improper

for the prosecutor to argue that the burden of proof rests with the defendant. State

v. Thorqerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011). Therefore, a prosecutor

generally cannot comment on the defendant's failure to present evidence because

the defendant has no duty to present evidence, jd.
No. 73265-2/6




      Knowledge that the Land Rover was stolen was an element the State had

to prove to convict Bentley of possession of a stolen vehicle.            See 11A

Washington Practice: Washington Pattern Jury Instructions: Criminal 77.21,

at 177 (3d ed. 2008). During closing argument, the State emphasized Bentley's

possible involvement with the burglary presumably to prove that Bentley had

knowledge. Bentley asserts that the prosecutor improperly shifted the burden of

proof by implying that he had a burden to present favorable or exculpatory

evidence showing that he did not commit the burglary.

      None of the prosecutor's remarks in closing argument explicitly commented

on Bentley's failure to present evidence, exculpatory or otherwise. And, we find

nothing in the prosecutor's closing argument to support a characterization that she

implicitly commented on the fact that Bentley did not provide any evidence

contradicting that allegation. And, to the extent the prosecutor's closing argument

implied Bentley was involved with the burglary based on evidence in the record,

this was not improper.3     Boehninq. 127 Wn. App. at 519. The prosecutor's

argument did not shift the burden to Bentley.

       Bentley further asserts that the trial court's ruling on his objection during

closing argument—informing him he could make a counter argument in his closing

       3 Bentley also implies that the prosecutor's remarks were in contravention
of the trial court's ruling excluding evidence about the burglary. Bentley asserts
that the court refused to allow any testimony suggesting Bentley had burglarized
Pena's house. This is a mischaracterization of the record. During trial, Bentley
did not object to Pena's testimony regarding the man watching his home or the
description of the man. He objected only when the State attempted to admit
evidence of the facial hair found at Pena's house. The trial court sustained the
objection to only that specific evidence. The trial court never excluded all evidence
suggesting that Bentley burglarized Pena's house.
No. 73265-2/7




argument—compounded the error.            He asserts that the trial court's ruling

suggested that Bentley, "could present a counter argument to the State's

impermissible argument, putting forth the favorable or exculpatory evidence that

he was not constitutionally required to present in the first place." However, the trial

court was merely commenting that Bentley would have the opportunity to rebut the

inferences the prosecutor was drawing. The trial court did not state that Bentley

had the obligation to rebut the inferences through evidence or otherwise.

       Absent error, we need not address the issue of prejudice. See Warren, 165

Wn.2d at 26 (stating that a defendant must first show that the prosecutor's

comments were improper in order to prevail on a claim of prosecutorial

misconduct).

       We affirm.




WE CONCUR:




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