                                                                 2015 APR lI Aii ^:^




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

STATE OF WASHINGTON,                                     No. 71096-6-1


                           Respondent,

                  v.                                     UNPUBLISHED OPINION

JASON CASTILLO ROMERO,

                           Appellant.                    FILED: April 27, 2015

       Schindler, J. — Jason Castillo Romero appeals the jury convictions of burglary

in the second degree and bail jumping. Romero contends prosecutorial misconduct

during closing argument deprived him of a fair trial. In the alternative, Romero argues

his attorney provided ineffective assistance of counsel by failing to object. Because

Romero cannot show the remarks could not have been addressed by a curative

instruction or the result of the trial would have been different, we affirm.

                                                FACTS


       On Tuesday, January 10, 2012, Uzias Gutierrez-Hougardy went with his mother

Misty1 to drop off food at the Living Hope Church of Nazarene. Living Hope is a small

church with a congregation of between 45 and 60 members. The church is a two-story

building with several classrooms, a full kitchen, a large gathering area, and multiple


       1We refer to several witnesses by their first names for clarity. No disrespect is intended.
No. 71096-6-1/2


restrooms. The church was locked. Uzias used a key code to enter through a side

door. As Uzias was walking down the hallway to go downstairs to open the kitchen door

for his mother, he saw a man he did not recognize coming out of a restroom. The man,

later identified as Jason Castillo Romero, "kind of stopped" and Uzias said, "[H]i."

Romero "said hi back" and Uzias continued to walk down the hallway. Uzias told his

mother Misty about seeing the man. Misty said no one was supposed to be in the

building.

       Uzias and church members Fred Schwyhart and his spouse Sylvia returned to

the church that same day to look for Romero. They did not find Romero. As they

walked through the church, they noticed a number of items were out of place or missing.

There was an empty juice bottle and glass "sitting on the top of the stairs against the

wall." In one of the classrooms, "[t]he chairs had been all stacked up blocking the

windows" and the "writer/reader board was up against another door that had a small

window so it. . . blocked looking out that little window." There was a "blue storage

container box" with "a fire extinguisher, candles, [and] mission books from the foyer"

inside. Fred noticed fire extinguishers "were missing" from other parts of the church.

There were also several items in the classroom that were normally in the pastor's

locked office, including an autographed baseball in a display box, printer ink, and a

prescription pill bottle belonging to the pastor's secretary. Someone had written "forgive

those who trespass" on the classroom whiteboard. Fred did not recognize the

handwriting and knew the writing had not been there on Sunday. In the kitchen, the

oven light was on, there was a pot on the stove, and there was a "noodle bowl" in the

oven with "the fork . . . still in there." Food was missing from the refrigerator. The
No. 71096-6-1/3


pastor's office door "had been broken into," and there was water on the floor of the

shower in the pastor's private bathroom as though someone had recently used it.

      Fred called 911. Normandy Park Police Department Officer David Unger

searched the church but did not find anyone. Officer Unger did not see any evidence of

forced entry but noticed "some damage to the walls" in the classroom where the chairs

had been moved.

      The next day, Misty found "a mess in the kitchen. Somebody had made oatmeal

and didn't clean up." Pastor Patrick Lyon noticed the camcorder from the computer in

his office was missing. Pastor Lyon went into the sound booth to check if other items

were missing and saw an electrical cord hanging from a crawl space in the ceiling.

      Maintenance custodian Edward Towle and another church member got a ladder

and started to climb up to the crawl space to investigate. Suddenly, a male voice said,

"I'm coming down .... Please don't hurt me." Romero emerged from the crawl space

and "laid out on the ground." Romero was "cooperative and calm."

      Romero remained on the ground until police arrived and arrested him a few

minutes later. Romero told Normandy Park Police Department Detective Daniel Will

that he was "scared" and that he had "been in there since Monday." Romero said he

entered the church through an unlocked window. Normandy Park Police Department

Officer David Bond found several items in the crawl space, including blankets, a radio, a

coffee pot, used plates and cups, food items, several used candles, and a backpack.

"[Rjight inside the opening" to the crawl space was a "three-pronged gardening tool" as

well as "a couple of large kitchen knives" that were "wedged between . . . pieces of

plywood." Romero identified the backpack as his but said some of the items in the
No. 71096-6-1/4


backpack "may be the church's." The backpack contained a "WebCam," a computer

keyboard, computer speakers, and a set of keys labeled "shed." Pastor Lyon identified

the contents of the backpack as belonging to the church.

       The State charged Romero with burglary in the second degree. The information

alleged Romero committed the crime of burglary "while the victim of the burglary was

present in the building or residence." After Romero failed to appear at his omnibus

hearing, the State amended the information to add a bail jumping charge.

       A number of witnesses testified during the four-day jury trial, including Uzias,

Misty, Fred and Sylvia, Officer Unger, Pastor Lyon, Towle, Detective Will, and Officer

Bond. The defense did not call any witnesses. At the request of the defense, the court

instructed the jury on the lesser included crime of trespass.

       In closing, defense counsel argued that Romero was guilty of only the lesser

included crime of criminal trespass because Romero did not enter the building with the

intent to commit a crime. Defense counsel argued the evidence showed Romero was

"squatting" inside the building and that if he was actually there to commit a crime, he

would have "taken off' when he was discovered in the crawl space rather than lie on the

floor and wait for the police to arrive.

       The jury found Romero guilty of burglary in the second degree and bail jumping.

The jury also found Romero committed the burglary while the victim of the burglary was

present in the building or residence. The court imposed concurrent standard range

sentences of 55 months for burglary and 43 months for bail jumping.
No. 71096-6-1/5



                                        ANALYSIS

       Romero seeks reversal of the convictions on the grounds that prosecutorial

misconduct during closing argument deprived him of the right to a fair trial. Romero

argues the prosecutor improperly urged the jury to decide the case based on passion

and prejudice and misstated the law. In the alternative, Romero argues his attorney

provided ineffective assistance of counsel by failing to object.

Prosecutorial Misconduct


       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). To prevail on a claim of

prosecutorial misconduct, a defendant must establish that the conduct was both

improper and prejudicial. State v. Fisher. 165 Wn.2d 727, 747, 202 P.3d 937 (2009).

       Prosecutorial misconduct is prejudicial where there is a substantial likelihood the

improper conduct affected the jury's verdict. State v. Yates, 161 Wn.2d 714, 774, 168

P.3d 359 (2007). But where, as here, defense counsel fails to object, any error is

waived unless the conduct was so "flagrant and ill-intentioned that it evinces an

enduring and resulting prejudice that could not have been neutralized by admonition to

the jury." State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997).

       Proper and timely objections provide the trial court an opportunity to
       correct the misconduct and caution jurors to disregard it. It prevents
       abuse of the appellate process and saves the substantial time and
       expense of a new trial.

State v. Walker,      Wn.2d      , 341 P.3d 976, 984 (2015) (citing State v. Emery, 174

Wn.2d 741, 761-62, 278 P.3d 653 (2012)). In determining whether there was prejudice

that could have been neutralized by an admonition to the jury, we focus less on whether
No. 71096-6-1/6


the misconduct was flagrant or ill-intentioned and more on whether any misconduct

could have been obviated by a curative instruction. Emery, 174 Wn.2d at 762.

       The defendant bears the burden of establishing remarks made during closing

argument were improper as well as their prejudicial effect. State v. Russell. 125 Wn.2d

24, 85, 882 P.2d 747 (1994). Even ifthey are improper, the remarks by the prosecutor

are not grounds for reversal "ifthey were invited or provoked by defense counsel and

are in reply to his or her acts and statements, unless the remarks are not a pertinent

reply or are so prejudicial that a curative instruction would be ineffective." Russell, 125

Wn.2d at 86. We review the allegedly improper comments in the context of the entire

closing argument, the issues presented, the evidence addressed, and the instructions

given to the jury. Russell. 125 Wn.2d at 85-86.

       Romero contends the argument that he collected items such as the butcher

knives and a garden trowel, "in case somebody infringed on his newly found space,"

improperly appealed to the passion and prejudice of the jury. A prosecutor may not

make comments designed to appeal to the passion and prejudice of the jury or

encourage a verdict based on emotion rather than evidence. In re Pers. Restraint of

Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012). However, the prosecutor has

wide latitude to argue reasonable inferences from the evidence. Glasmann. 175 Wn.2d

at 704; Fisher. 165 Wn.2d at 747.

       In closing argument, the prosecutor argued that there was "a lot of evidence of

the defendant's intent to commit a crime inside the church." In addition to Romero's

efforts to "conceal his presence inside the church," the prosecutor argued that the

evidence showed Romero stole food from the church and used the pastor's private
No. 71096-6-1/7


shower. The "biggest piece of evidence of the defendant's true intent," the prosecutor

argued, was that he kicked in the pastor's locked office door and took a number of

valuable electronics and office supplies.

       [IJnside the black backpack were numerous articles. I believe that [Pastor
       Lyon] testified that there was a WebCam, there were speakers, there was
       a keyboard, there were keys for the shed out back, and there were other
       miscellaneous office supplies.

             What in the world is the defendant doing with these things? If the
      defendant is just there trespassing, he just is cold and tired and needs a
      place to sleep, what in the world is he going to do with computer
      speakers? With a WebCam?
             You can't eat it. It won't keep you warm. They are things of value
      that he wanted and he has committed a theft by taking those things up into
      his space and withholding them from the true owner.

       The prosecutor also argued the butcher knives and the garden trowel found in

the crawl space showed Romero's intent to commit a crime inside the church. The

prosecutor argued Romero collected these items "in case somebody infringed on his

newly found space."

               The last piece of evidence that I think is somewhat significant is the
       . . . fact that the defendant had started to collect tools and instruments that
       could potentially be used as weapons, and he stored these up in the
       crawlspace.
              Now who knows what the defendant was hoarding, you know, four
       butcher knives for, or that — there is a picture that you will see of this
       three-pronged — it is like a mini pitchfork for your garden — you hoe the
       dirt with.
             Who knows what the defendant was doing with those things?
             There was testimony that that garden pitchfork had been out in the
       shed previously. He had the shed keys in his backpack so we know
       where he got it and that the butcher knives were kept in a butcher block
       down in the kitchen.
               We do know that they were close at hand up in his hidy-hole; that
       someone would come that he didn't feel should have been there.
               Is it reasonable to think that the defendant was going to do some
       gardening or needed four butcher knives up there for some, you know,
       legitimate reason?
No. 71096-6-1/8


                It is reasonable to conclude that the defendant gathered those
       items in case somebody infringed on his newly found space.
              And again, it is just another piece of evidence of intent to commit a
       crime therein.


       The prosecutor's remarks were not improper. The arguments were based on

reasonable inferences from the evidence. Further, the remarks were not so flagrant and

ill-intentioned that they could not have been cured with an instruction.

       State v. Pierce. 169 Wn. App. 533, 280 P.3d 1158 (2012), is distinguishable. In

Pierce, the prosecutor fabricated an entire conversation between the defendant and the

victims just before he murdered them. Pierce. 169 Wn. App. at 555. The prosecutor

also created a fictitious internal dialogue of what the defendant may have been thinking

before and during the murders and recited it in the first person narrative during closing.

Pierce. 169 Wn. App. at 553-54. Finally, the prosecutor stated, without objection, that

" '[n]ever in their wildest dreams ... or in their wildest nightmare'" would the victims

have expected to be murdered on the day of the crime. Pierce, 169 Wn. App. at 555.2

The court held the first two arguments were improper because they were based on the

prosecutor's speculation and not on the evidence, and they were an appeal to the jury's

sympathy. Pierce. 169 Wn. App. at 553-55. Although the defendant did not object to

the third argument, the court concluded it was also an improper appeal to passion and

prejudice that invited the jury to imagine themselves in the victims' shoes and could not

be cured by a jury instruction. Pierce. 169 Wn. App. at 556.

       Here, unlike in Pierce, the arguments were based on reasonable inferences from

the evidence. Further, the defense used the prosecutor's argument to point out how

cooperative Romero was and to argue Romero's actions did not show he intended to


       2 Alterations in original.
No. 71096-6-1/9


commit a crime. The incorporation of this argument into the defense argument weakens

the contention that it denied Romero a fair trial. See Russell. 125 Wn.2d at 89. During

closing argument, the defense attorney argued, in pertinent part:

              Now the State has made much ado about garden implements,
       knives and these sorts of things, and what was [Romero] going to do with
      that sort of stuff?
              Again, Jason's inaction speaks volumes.
              On the day he comes down from the ceiling, "Please don't hurt me,
      I'm coming down."
              He comes down the ladder, undirected, lays down on the floor in
      the foyer.
              Now here we have a person that [the prosecutor] wants you to
      believe is there to commit a crime and he, Jason, comes down out of the
      ceiling and lays down on the floor in the foyer with the front door right
      there.
               He could have split. He could've run. He could've taken off.

       Romero also contends the prosecutor misstated the law when she encouraged

the jury to reject the lesser charge of criminal trespass because a trespass "is

temporary." The State concedes the prosecutor misstated the law but argues a curative

instruction could have corrected any prejudice.

       While it is improper for a prosecutor to misstate the law, reversal is required only

if the misconduct had a substantial likelihood of affecting the verdict. State v. Warren,

165 Wn.2d 17, 28, 195 P.3d 940 (2008).

       In closing argument, the prosecutor stated the central dispute in the case was

whether Romero unlawfully entered or remained in the church with the intent to commit

a crime. The prosecutor argued that "the difference between a criminal trespass and a

burglary — is whether that entering or remaining unlawfully was done with intent to

commit a crime therein." The prosecutor then argued that this was not "just a trespass"
No. 71096-6-1/10


because "[a] trespass is temporary."

              Now the defense attorney would like you to believe that this was
      just a trespass; that the defendant was just trespassing. He didn't intend
      to commit any crimes inside the church.
              But this isn't a trespass. A trespass is temporary. A trespass is
      cutting through your neighbor's yard to get to the bus stop quicker. A
      trespass does not involve remaining unlawfully with the intent to commit
      crimes or actually committing crimes.
              So a trespass versus a burglary, this about what we have here.
      This is a long-term situation. It is not temporary. It is not like the
      defendant — it is not like church members come in the first morning and
      find the defendant huddled with a blanket on a queue [sic].
              That is a trespass. That is "it is cold outside. I need to get in and
      stay warm. I didn't mean anyone any harm. I needed a place to sleep."
              That is not what happened here.

       In State v. Reed. 168 Wn. App. 553, 278 P.3d 203 (2012), the prosecutor stated

that the presumption of innocence "does last all the way until you walk into that [jury]

room and start deliberating." Reed. 168 Wn. App. at 578.3 We concluded the remark

was an incorrect statement of the law but "a simple instruction from the trial court

indicating that the presumption of innocence may be overcome, if at all, only during the

jury's deliberations would have been sufficient to overcome any prejudice resulting from

the prosecutor's remark." Reed. 168 Wn. App. at 578-79.4

       Similarly, here, a curative instruction would have neutralized any prejudice

resulting from the prosecutor's misstatements that a trespass is "temporary." The

prosecutor correctly stated that the difference between a trespass and a burglary is that

a trespass "does not involve remaining unlawfully with the intent to commit crimes or

actually committing crimes," and argued throughout her closing that Romero was guilty

of burglary because he entered or remained in the church with the intent to commit a

crime. The court correctly instructed the jury that "[a] person commits the crime of

       3 Internal quotation marks omitted, alteration in original.
       4 Emphasis in original.

                                                     10
No. 71096-6-1/11


criminal trespass in the first degree when he knowingly enters or remains unlawfully in a

building." The court also instructed the jury to "disregard any remark, statement, or

argument that is not supported by the evidence or the law in my instructions." We

presume the jury followed the court's instructions. State v. Dye. 178 Wn.2d 541, 556,

309P.3d 1192(2013).

Ineffective Assistance of Counsel

       In the alternative, Romero contends that his attorney provided ineffective

assistance of counsel by failing to object to the prosecutor's remarks during closing

argument. To establish ineffective assistance of counsel, a defendant must show both

that counsel's performance was deficient and that the performance prejudiced the

defendant's case. Strickland v. Washington. 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984). Deficient performance is shown if counsel's conduct fell below an

objective standard of reasonableness. Stenson. 132 Wn.2d at 705-06. To satisfy the

prejudice prong, a defendant must show a "reasonable probability that, except for

counsel's unprofessional errors, the result of the proceeding would have been different."

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

      There is a strong presumption that counsel provided effective assistance. State

v. Tilton. 149 Wn.2d 775, 784, 72 P.3d 735 (2003). To rebut this presumption, a

defendant bears the burden of establishing the absence of any" 'conceivable legitimate

tactic explaining counsel's performance.'" State v. Grier. 171 Wn.2d 17, 33, 246 P.3d

1260 (2011) (quoting State v. Reichenbach. 153Wn.2d 126, 130, 101 P.3d 80 (2004)).




                                            11
No. 71096-6-1/12



       Here, Romero has not shown that defense counsel did not have any conceivable

legitimate reason not to object or that if his attorney had objected to the remarks during

closing argument, the result of the trial would have been different.

      We affirm Romero's convictions for burglary in the second degree and bail

jumping.




                                                       yj A-dtQq,
WE CONCUR:




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