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                                                                                      3
                                                                                                         9:5
                                                                                                          2
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN
                                                                                                     SNG   bi
                                       DIVISION II                                  BY
                                                                                           DE-       Y
STATE OF WASHINGTON,                                             No. 43208 1 II
                                                                           - -


                             Respondent,

       V.



ZANE RYAN CAVENDER,                                        UNPUBLISHED OPINION


                             Abbellant.



       JOHANSON, A. .
                 J.
                  C            After a jury found Zane Ryan Cavender guilty of residential
                                —


burglary, he appealed claiming ( )
                               1 prosecutorial misconduct, 2) violation of the appearance of
                                                           ( a

fairness doctrine, 3)ineffective assistance of counsel, and (4)insufficient evidence to support
                   (

his conviction. We hold that ( ) the alleged misconduct preserved for review, Cavender fails
                             1 of

to show the prosecutor committed reversible misconduct, 2)Cavender failed to preserve for
                                                        (

review the alleged violation of the appearance of fairness doctrine, ( )his counsel was not
                                                                     3

ineffective, and (4)sufficient evidence supports his conviction. Accordingly, we affirm.
                                             FACTS


       On May 23, 2011, barking dogs awakened Antonio Davila. Davila looked out his second

story bedroom window toward the home's detached garage. Though he had locked his garage's

entry door earlier that evening, he noticed that it was now ajar. He took a loaded pistol and went
outside to investigate.

       As Davila approached the garage; he heard movement coming from inside. He looked

into the garage and saw two people. He ordered them.to exit with their hands up and advised




                I
No. 43208 1 II
          - -



them that he   was   armed.   The two men did not comply, and instead moved about inside the

garage and put their hands into their pockets. Moments later, the men ran from the garage, and

Davila fired one shot at the first man before the man ran toward an adjacent alley. Davila also

shot at the second man out, Cavender, who fell almost instantly.

        After checking Cavender for weapons and seeing whether anyone else was hiding in the

immediate area, Davila began treating Cavender's gunshot wound. Davila told his wife, Jennifer

Vittetoe, to phone 911. When officers arrived, Vittetoe went to find her purse, which she kept on

a hook near her home's back door, but it was missing. Vittetoe also noticed that a DVD player,

normally stored downstairs, sat on the floor.

        Authorities searched the scene and found the first man who had run from the garage,

Anthony McDougald, dead from a gunshot wound to his back, in a nearby alley. McDougald
was   wearing blue rubber gloves and carrying       a   knife.   He also had some of Davila's and


Vittetoe's property, including credit cards, Davila's sweatshirt, keys, and a metal carabiner
attachment that Vittetoe used to hold her   keys. Cavender was wearing gloves and carrying a

screwdriver, knife, hypodermic needle, and flashlight. They also found him with Vittetoe's

Barnes and Noble gift card.

         The State charged Cavender with residential burglary' and added aggravating factors
because the victims were present during the burglary, and Cavender committed the burglary




    RCW 9A. 2. In the alternative, the State charged Cavender with second degree burglary,
        025.
          5
including the same aggravators.
2
    RCW 9.
        u).
        535( 4A.
           3)(
           9



                                                2
No. 43208 1 II
          - -



shortly after being   released from   prison. At trial, while questioning Tacoma Police Officer
Brandon Cockcroft about his interview with Cavender at the hospital, the prosecutor asked,

        Q. Okay. Did he [Cavender] agree to speak with you [after being advised of his
        rights]?
        A. He didn't say he didn't want to initially, no.
        Q. Did you ask him questions about the investigation?
        A. I asked him what happened.
        Q. And what did he tell you?
        A. He said, Some dude shot me in the back."
                    "
        Q. Did he offer any further explanation about how some "dude"had shot him in
        the back?
        A. At that point he elected to no longer answer my questions.

2 Verbatim Report of Proceedings (VRP)at 261. Cavender did not object to this exchange.

        Later, the prosecutor asked Tacoma Police Homicide Detective Brian Vold if homicide

investigations ever result in criminal charges not being filed, and Detective Vold responded,

Yes,when it' a legal,justifiable homicide."2 VRP at 300. Detective Vold then explained that
           s

dispatchers typically send homicide detectives to the scene of an alleged homicide to "confirm
that what you've been told initially [upon arrival at the scene] does make sense."2 VRP at 301.

He added that investigators confirm the alleged events independently by interviews and on scene
                                                                                          -

investigation. The prosecutor then asked Detective Vold whether Davila was ever charged with
a   crime, and Detective Vold responded negatively. The prosecutor also asked Tacoma Police

Detective Jack Nasworthy if the State had charged Davila for the homicide, and Detective

Nasworthy responded negatively. Cavender did not object to any of this testimony, nor did he

testify.




3 RCW 9. )(
      t).
      535( 4A.
         3
         9

                                                  3
No. 43208 1 II
          - -



       During closing, the prosecutor stated that Davila was "the only witness who witnessed all

of the events leading up to the arrest and criminal charges of Zane Cavender that testified in this

courtroom."3 VRP at 596. Toward the end of its argument, the prosecutor stated:

                 This is a case about a burglary, members of the jury. Zane Cavender is
       charged with residential burglary and burglary in the second degree. This is not a
       homicide trial. The detectives went on to investigate this as a homicide because
       there was a killing of a human being. Tony McDougald was shot and died there
       at the scene, and so they investigated this as if there is a potential that somebody
              criminally charged. It is clear who fired the shots that killed Tony
       could be
       McDougald. That was not in issue and was not in dispute ever. They
       investigated his story. They investigated the crime s[ ]They treated this like
                                                           ene.
                                                             c
       a homicide investigation, and Tony Davila wasn't charged. The person that was
       charged with the crime you are here to decide is Zane Cavender. He is charged
       with the burglary. It' not State v[.] Davila. The evidence in this case, there
                            s               Tony
       is no evidence to contradict what Tony Davila told you had occurred that day.
       Nothing. Every bit of evidence that was introduced by Tony Davila was
       corroborated by the other witnesses who were involved in this investigation, and
       the other witnesses concluding this is a burglary.

3 VRP at 605 06. Cavender did not object to this argument.
             -

       Then during rebuttal closing, the prosecutor argued that the jury should rely on "what

was presented on the witness stand and the exhibits admitted into evidence for you to make a
determination [ as] to what   happened   this   night .."   3 VRP at 632.    She reminded the jury that

Davila had "testified, and the evidence that we have is the testimony of Tony and you get to

determine his credibility."3 VRP at 636. And responding to Cavender's argument that perhaps

that was not Vittetoe's gift card on Cavender, the prosecutor argued that there was "no evidence
before you that Mr. Cavender      ever   owned     a   Barnes and Noble     gift   card." 3 VRP at 637.


Cavender did not object to this argument.

        The jury found Cavender guilty of residential burglary and found by special verdict that

he committed the burglary with the victims present. After Cavender then waived his jury trial


                                                       0
No. 43208 1 II
          - -



right, the trial court found that he committed the burglary shortly after being released from

incarceration. The trial court made a finding of rapid recidivism after the parties stipulated that

Cavender had committed the burglary 31 days after being released from custody.

       At   sentencing,   the trial court heard Davila's victim   impact   statement.   The trial court


sympathized with the victims:

              I have been a victim of having a sawed off shotgun pointed to my left
       temple while I was on my stomach in a beauty shop, and even though that
       happened let' see, my son was born and he was only three months old. So that
                 —s
       happened in 1989. I still remember it quite vividly, and I' sure the ramification
                                                                 m
       on you and your wife is not going to end even with sentencing. It is something
       that you are going to have to deal with and may have to seek some professional
       counseling   in order to deal with that situation.   There are little things that can
       trigger that memory, as easily as someone opening up a door or your putting your
       purse on that hook behind the door.

3 VRP at 667. The trial court concluded, I have limited control pursuant to statute as to what
                                         "

kind of sentence I can impose. I want to thank you for your willingness and courage to come

here today to confront the Defendant. Thank you." VRP at 668. Cavender raised no objection
                                                3
to the trial court's statement.


        The trial court found Cavender's standard range was 22 to 29 months. The range for an

exceptional sentence was 29 to 120 months. The trial court sentenced Cavender to 116 months,

citing the two aggravators to justify the exceptional sentence. Cavender appeals.
                                             ANALYSIS


                                   I. PROSECUTORIAL MISCONDUCT


        Cavender first argues that the State committed prosecutorial misconduct because it

improperly (1)elicited testimony that Cavender had invoked his right to silence, 2)
                                                                                 ( vouched for

the credibility of law enforcement witnesses and implied that Cavender was guilty because the



                                                  5
No. 43208 1 II
          - -



State had not pursued homicide charges against Davila, and (3)commented on Cavender's

failure to present evidence in his own defense. Of the alleged instances of misconduct preserved

for appeal, none constitute reversible error.

                                            A. Right to Silence

         First, Cavender claims that the prosecutor committed misconduct by improperly eliciting

testimony that Cavender invoked his right to silence. Because overwhelming evidence supports

Cavender's conviction and any rational trier of fact would have reached the same conclusion,

any alleged error touching on Cavender's right to postarrest silence was harmless beyond a
reasonable doubt and does not warrant reversal.


         During its case in chief, the State may not use evidence of a defendant's silence either as

substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt.

State v. Lewis, 130 Wn. d 700, 707, 927 P. d 235 (1996).When a defendant's silence is raised
                      2                  2

at trial, we consider whether the prosecutor manifestly intended the remarks to be a comment on
that   right.   State   v.   Burke, 163 Wn. d 204, 216, 181 P. d 1 ( 2008). C]
                                          2                  3              "[ omment" means the

State uses the accused's silence to suggest to the jury that the refusal to talk is an admission of

guilt. Lewis, 130 Wn. d at 707. A mere reference to silence which is a not a "comment"on the
                    2
silence is not reversible error absent a showing of prejudice. See Lewis, 130 Wn. d at 706 07.
                                                                                2          -

          Eliciting testimony about and commenting on a suspect's postarrest silence or partial

silence is constitutional error and subject to our stringent constitutional harmless error standard.

State v. Easter, 130 Wn. d 228, 236 37, 242, 922 P. d 1285 (1996). Under this standard, we
                       2            -             2

presume constitutional errors are harmful and reverse and remand for a new trial unless the State

meets the heavy burden of establishing that the constitutional error was harmless beyond a


                                                     C
No.43208 1 II
         - -



reasonable doubt. Easter, 130 Wn. d at 242.
                                2                           A constitutional error is harmless beyond a

reasonable doubt only if the evidence is so overwhelming that any rational trier of fact would

necessarily have found the defendant guilty. Easter, 130 Wn. d at 242.
                                                           2

          Here, Cavender claims that the prosecutor improperly questioned Officer. Cockcroft.

Officer Cockcroft testified that when he interviewed Cavender, Cavender explained that

someone shot him in the back. Then the prosecutor asked Officer Cockcroft a yes no question,
                                                                                /

Did [Cavender] offer any further explanation about how some `dude' had shot him in the
back ?"    2 VRP at 261. Officer Cockcroft answered nonresponsively, without objection, At that
                                                                                        "

point he elected to no longer answer my questions."2 VRP at 261.

          To support his claim that this is a comment on his right to remain silent, Cavender cites

and analyzes a series of cases, including Doyle v. Ohio, 426 U. . 610, 96 S. Ct. 2240, 49 L. Ed.
                                                              S
2d 91 (1976), Easter, 130 Wn. d 228. They all differ significantly from the present matter.
            and             2

          In Doyle, while on trial for a criminal drug charge, the defendant and codefendant
claimed they had been framed. 426 U. .611 13. They had declined to say anything upon arrest,
                                   S      -

but at trial,the prosecutor attempted to elicit testimony to impeach the defendants by questioning

why they had not initially told police that they had been framed. Doyle, 426 U. . 613 14. The
                                                                              S       -
Court held the questioning violated the defendant's Fourteenth Amendment due process

rights, and the Court reversed the defendants' convictions. Doyle, 426 U. . at 619 20. Unlike
                                                                        S          -
Doyle, however, here the State did not repeatedly ask questions designed to elicit a response
focusing     on   the defendant's   right   to   silence.   Here, as soon as Officer Cockcroft stated,

nonresponsively to a yes no question, that Cavender had invoked his rights, unlike in Doyle, the
                         /
prosecutor transitioned away from this line of questioning.


                                                        7
No. 43208 1 II
          - -



       In Easter, our Supreme Court held that the prosecutor violated Easter's prearrest Fifth

Amendment right to silence when it elicited an officer's testimony, over defense counsel's

unsuccessful objection, that the defendant "totally ignored"his questions at the crime scene and

when asked additional questions, looked down, "once again ignoring me, ignoring my

questions."    130 Wn. d at
                     2          232, 235.    The officer also testified regarding the defendant's

evasiveness and unwillingness to communicate with him at the scene. Easter, 130 Wn. d at 233.
                                                                                  2

       Our Supreme Court held that this testimony improperly characterized Easter's silence as

evasive and evidence of his       guilt. Easter,   130 Wn. d at 235.
                                                         2                   Easter, too, differs from the

present matter because there, the prosecutor's questions elicited testimony about the defendant
                                  drunk" attempting to avoid     responsibility     for his conduct.    130
acting evasive, like   a "smart



Wn. d 233.
  2            Here, neither Officer Cockcroft nor the prosecutor blatantly implied Cavender's

guilt during this questioning; Officer Cockcroft simply stated that Cavender initially participated
in the interview but then " lected to no longer answer my questions."2 VRP at 261.
                          e

       Here, we will assume, without deciding, that Officer Cockcroft's testimony touched on

Cavender's partial postarrest silence and apply the constitutional harmless error standard. We

thus presume reversible error unless the evidence is so overwhelming that any rational trier of
fact would                  have found Cavender      guilty.   See Easter, 130 Wn. d at 242.
                                                                                 2                     Such
              necessarily

overwhelming evidence is present here.

        Specifically, Davila found Cavender in his garage without permission to be there.
Cavender and McDougald both wore gloves and carried knives; Cavender also carried a

flashlight, as well as a flathead screwdriver—
                                             burglary tools. After Davila called to Cavender
and   McDougald    in the garage, the two    men    attempted   to   flee.   Also, some of Davila's and



                                                     N.
No. 43208 1 II
          - -



Vittetoe's property was missing from their home, including Vittetoe's purse and its contents;

and, from Cavender and McDougald, authorities recovered some of this property— cards, a
                                                                             credit

gift card, and keys,among other items. In light of this overwhelming evidence demonstrating

Cavender's guilt, we hold that any rational trier of fact would necessarily have found Cavender

guilty   of residential   burglary. Accordingly, any error related to an improper comment on

Cavender's postarrest silence was harmless beyond a reasonable doubt.

                                          B. Alleged Vouching

         Next, Cavender contends that the prosecutor improperly vouched for the State's

witnesses and its theory of the case. Cavender failed to preserve this issue for appeal.

         Improper vouching generally occurs if the prosecutor expresses her personal belief as to

the veracity of the witness or indicates that evidence not presented at trial supports the witness's

testimony. State v. Ish, 170 Wn. d 189, 196, 241 P. d 389 (2010).Prosecutors, however, enjoy
                               2                  3

wide latitude to argue reasonable inferences from the facts concerning witness credibility, and

we will not find prejudicial error unless it is clear and unmistakable that counsel is expressing a

personal opinion.     State   v.   Allen, 176 Wn. d 611, 631, 294 P. d 679 ( 2013). And, alleged
                                                2                  3


improper opinion testimony does not constitute manifest constitutional error unless the
prosecutor clearly and expressly vouches for a witness's credibility. See State v. Kirkman, 159

Wn.2d 918, 929 30, 155 P. d 125 (2007).So, to challenge alleged instances of vouching for the
               -        3
first time on appeal an appellant must demonstrate that the prosecutor clearly and expressly

vouched for a witness's credibility. See RAP 2. ;Kirkman, 159 Wn. d at 929 30.
                                              5                 2          -

         Here, Cavender asserts that the prosecutor first improperly bolstered the State's case and

vouched for Davila's credibility when, without objection, it asked Detective Vold questions that


                                                    E
No. 43208 1 II
          - -



elicited testimony that homicide investigations do not result in criminal charges in cases of legal,

justifiable homicide. Second, he.claims the prosecutor repeated this misconduct when, without

objection, it asked a question eliciting Detective Nasworthy's testimony that the State had not

charged Davila with a homicide. Third, Cavender claims that the prosecutor improperly vouched

for Davila's credibility during closing when it argued, without objection, that investigators

concluded their work and the State ultimately charged Cavender with burglary and decided not to

charge Davila with homicide. Cavender contends that, in these three instances, the prosecutor

improperly argued that the State believed Davila's version of events, vouching for his credibility.
       In each of these   episodes   of   alleged vouching, Cavender     did not   object. So, Cavender

failed to preserve this issue unless he can establish that the prosecutor or witnesses expressly

vouched for Davila's credibility. But here, the alleged misconduct was buried in logical leaps

rather than express opinions. Cavender does not demonstrate that the prosecutor or any of the
State's witnesses   personally opined regarding         Davila's   credibility.    Detectives Vold and


Nasworthy simply testified that the State had not charged Davila with homicide. They were not

expressing personal opinions regarding Davila's credibility; and, the prosecutor also did not

clearly and unmistakably opine regarding Davila's credibility in its questioning of the detectives

or in its arguments. The prosecutor elicited factual information. Accordingly, because he fails to

demonstrate that the prosecutor expressly vouched for a witness's credibility, Cavender did not

preserve this issue for appeal. RAP 2. ;Kirkman, 159 Wn. d at 929 30.
                                     5                 2          -

                    C. Commenting on Cavender's Failure to Present Evidence

        Next, Cavender claims that the prosecutor improperly shifted the burden to the defense to

produce exculpatory evidence. Again, Cavender failed to preserve this issue for appeal.


                                                   10
No. 43208 1 II
          - -



         Generally, a prosecutor cannot comment on the lack of defense evidence because the

defense has no duty to present evidence. State v. Thorgerson, 172 Wn. d 438, 467, 258 P. d 43
                                                                    2                  3

2011).But the mere mention that defense evidence is lacking does not constitute prosecutorial

misconduct or shift the burden of proof to the defense. State v. Jackson, 150 Wn. App. 877, 885-

86, 209 P. d 553, review denied, 167 Wn. d 1007 (2009). In fact, a prosecutor is entitled to
         3                             2

        out        lack of   evidentiary support for the defendant's theory of the       case.    State v.
point          a




Killingsworth, 166 Wn. App. 283, 291 92, 269 P. d 1064, review denied, 174 Wn. d 1007
                                     -        3                              2

2012).

         If a defendant fails to object to alleged improper burden shifting at trial, he fails to

preserve the issue unless he establishes that the misconduct was so flagrant and ill intentioned
that an instruction would not have cured the prejudice. State v. Emery, 174 Wn. d 741, 760 61,
                                                                              2            -

278 P. d 653 (2012).We focus less on whether the prosecutor's misconduct was flagrant and ill
     3
intentioned and      more    on   whether the   resulting prejudice   could have been cured.   Emery, 174

Wn. d at 762.
  2


         Cavender cites State v. Fiallo-
                                       Lopez, 78 Wn. App. 717, 899 P. d 1294 (1995).There, the
                                                                    2

State charged Fiallo Lopez after he was involved with an undercover drug transaction. Fiallo-
                     -

Lopez,    78 Wn.     App.    at 719 20.
                                    -     At trial, a police informant testified, as did two detectives.

Fiallo-
      Lopez, 78 Wn. App. at 720 21. Fiallo Lopez did not testify. Fiallo-
                                -          -                            Lopez, 78 Wn. App.
at 728.       During closing, the prosecutor argued that "absolutely" no evidence explained why

Fiallo Lopez was present, first at a restaurant where the drug transaction began and then at
       -

Safeway, where it continued, or why he had contact with the drug seller at both places. Fiallo-

Lopez, 78 Wn. App. at 729. The prosecutor also contended that Fiallo Lopez had not attempted
                                                                     -


                                                        11
No.43208 1 II
         - -



to rebut the State's evidence regarding his involvement in the drug deal. Fiallo-
                                                                                Lopez, 78 Wn.

App. at 729. Division One held that because the argument improperly commented on Fiallo-

Lopez's right not to testify at trial, it impermissibly shifted the burden of proof to the defendant.

Fiallo-
      Lopez, 78 Wn. App. at 729.

       The misconduct in Fiallo Lopez differs because it occurred during closing argument,
                                -

whereas here, the alleged misconduct took place during rebuttal closing, in response to

Cavender's closing argument. Here, the prosecutor first told the jury that it should rely on the

evidence presented on the witness stand and the admitted exhibits in reaching its determination.

       This argument does not shift the burden to the defense; in fact, the trial court similarly

instructed the jury to consider only "the testimony that you have heard from witnesses,

stipulations, and the exhibits that I have admitted, during the trial." at 14 (Instruction No. 1).
                                                                      CP

Therefore, this argument does not constitute improper misconduct. The prosecutor also added
that Davila had   testified, and the jury   was   to   determine his credibility. Again, unlike Fiallo-

Lopez, this is an accurate recounting of the trial events and the instruction that the jury should

consider the evidence and make credibility determinations.

        Finally, the prosecutor responded to Cavender's closing argument, in which defense .

counsel pontificated that the gift card found on Cavender after the burglary may not have been
Vittetoe's.The    prosecutor argued that there was "no evidence before you that Mr. Cavender

ever owned a Barnes and Noble gift card."3 VRP at 637. Again, unlike Fiallo-
                                                                           Lopez, here the

State responded to the defendant's argument to undermine the defense theory, which it may do.

See Killingsworth, 166 Wn.App. at 291 92. Accordingly,this matter differs from Fiallo-
                                      -                                              Lopez.




                                                       12
No. 43208 1 II
          - -



       Because Cavender failed to object to this alleged misconduct at trial, he did not preserve

the issue for appeal unless he could establish that the alleged misconduct was so flagrant and ill

intentioned that an instruction would not have cured the prejudice. Emery, 174 Wn. d at 760 61.
                                                                                 2          -

He does not do   so.   Because the State did not commit any misconduct, and either accurately

restated the duties of the State, defense, and jury, or fairly responded to defense counsel's

arguments, he cannot show how this alleged misconduct was improper, unfairly prejudicial, or

incurable by an instruction. Even had he preserved this issue, he could not have shown error.

                                  Il. APPEARANCE OF FAIRNESS


       Cavender next argues that the trial court violated the appearance of fairness doctrine

when it imposed an exceptional sentence and expressed empathy for the burglary victims.

Cavender did not preserve this issue for appeal.

       An appearance of fairness claim is not "constitutional"under RAP 2. ( thus,
                                                                        a)( and,
                                                                         3)
                                                                         5

may not be raised for the first time on appeal. State v. Morgensen, 148 Wn. App. 81, 90 91, 197
                                                                                        -

P. d 715 (2008),
 3             review denied, 166 Wn. d 1007 (2009); also City of Bellevue v. King
                                    2              see

County Boundary Review Bd., Wn. d 856, 863, 586 P. d 470 (1978) ( " appearance of
                          90  2                  2              Our

fairness doctrine, though related to concerns dealing with due process considerations, is not

constitutionally based. "). Because Cavender did not object at trial, claiming a violation of the

appearance of fairness doctrine, he may not now raise this issue. RAP 2. ( Morgensen,
                                                                      a)(see
                                                                       3);
                                                                       5

148 Wn. App. at 90 91.
                   -

                            III. INEFFECTIVE ASSISTANCE OF COUNSEL


        Cavender next claims ineffective assistance of counsel because defense counsel failed to

object to the prosecutor's alleged misconduct. We disagree.



                                                   13
No. 43208 1 II
          - -



       To show ineffective assistance of counsel, a defendant must show that (1) lawyer's
                                                                                his

representation   was   deficient and (2)the deficient   performance prejudiced   him. Strickland v.


Washington, 466 U. . 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Representation is
                 S

deficient if it falls below an objective standard of reasonableness based on consideration of all

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

Prejudice occurs when but for counsel's deficient performance, the proceeding's result would

have been different. McFarland, 127 Wn. d at 335. If a party fails to satisfy one prong, we
                                      2

need not consider the other.     State v. Foster, 140 Wn. App. 266, 273, 166 P. d 726, review
                                                                              3

denied, 162 Wn. d 1007 (2007).
              2

       We are highly deferential to counsel's performance, that is,the defendant must overcome

the presumption that, under the circumstances, the challenged action might be considered sound

trial strategy. Strickland, 466 U. . at 689. Tactical decisions cannot form the basis for a claim
                                 S

of ineffective assistance of counsel. McFarland, 127 Wn. d at 336.
                                                       2

       Cavender must show that defense counsel provided ineffective assistance by failing to

object to the alleged prosecutorial misconduct; and he must show that not objecting could not

have been a tactical decision. Here, the alleged misconduct included the prosecutor improperly

1)eliciting testimony intended to comment on Cavender's right to silence; 2)
                                                                          ( vouching for the

State's witness, Davila; and ( )
                             3 implying that the defense had a duty to present evidence.

       First, regarding the testimony regarding Cavender invoking his silence, defense counsel

could have exercised tactical judgment to not draw further attention to the comment, particularly

since the State quickly moved on to a different subject. Because tactical reasoning could justify




                                                  14
No. 43208 1 II
          - -



not objecting to a yes no question that resulted in a non -
                       /                                  responsive answer, Cavender cannot

show deficient performance. See McFarland, 127 Wn. d at 336.
                                                 2

       Regarding the second instance, because neither the prosecutor nor her witnesses

personally opined regarding Davila's credibility, they were not improperly vouching, so any

objection    would have been futile.   Thus, Cavender cannot show deficient performance or

prejudice.

       Regarding the third instance, the prosecutor fairly responded, in rebuttal closing, to

Cavender's defense theory and then properly restated the law as outlined in the trial court's own

instructions. Therefore, any   objection would have, again, been     futile.   Absent a showing of

deficient performance or resulting prejudice, Cavender cannot carry his burden to show
ineffective assistance of counsel. See Strickland, 466 U. .at 687.
                                                        S

                                 IV. Sufficiency of the Evidence

       In his statement of additional grounds, Cavender claims that the State presented

insufficient evidence to prove that he committed residential burglary. He then asserts that his
defense counsel offered ineffective assistance for failing to move to dismiss the charge due to

this insufficient evidence. Cavender does not demonstrate error.

       We review insufficient evidence claims for whether, when viewing the evidence in the

light most favorable to the jury's verdict, any rational trier of fact could have found the essential

elements of the charged crime beyond a reasonable doubt. State v. Salinas, 119 Wn. d 192, 201,
                                                                                 2

829 P. d 1068 (1992)..
     2              Sufficiency challenges admit the truth of the State's evidence and all
reasonable inferences drawn from it. Salinas, 119 Wn. d at 201.
                                                    2




                                                 15
No.43208 1 II
         - -



       The trier of fact makes   credibility determinations   that   we   will not review.   State v.


Thomas, 150 Wn. d 821, 874, 83 P. d 970 (2004). We defer to the trier of fact on issues of
              2                 3

conflicting testimony, witness credibility, and the persuasiveness of evidence. State v. Walton,

64 Wn.App.410, 415 16,824 P. d 533, review denied, 119 Wn. d 1011 (1992).
                   -       2                             2

       A person is guilty of residential burglary if a person (1)enters or remains unlawfully in a

dwelling other than a vehicle (2)with intent to commit a crime against a person or property

therein. RCW 9A. 2.A "[
             025(
                1
                5 ). welling" is any building or structure used or ordinarily used
                     d]

by a person for lodging. RCW 9A. 4.
                             110(
                                7
                                0 ).

       Here, Cavender claims that the State failed to prove that he committed residential

burglary. Direct and circumstantial evidence does, however, satisfy each element to prove

residential burglary.

       First, the State showed that Cavender or McDougald entered or remained unlawfully in

Davila and Vittetoe's house. Davila stated that he had not granted Cavender nor McDougald

permission to be in his home. Vittetoe testified that her purse and keys, which she hung near her

back door, were missing from their usual location following the incident. And a DVD player

typically stored on a shelf was on the floor. A jury could infer from this evidence that someone

unlawfully entered or remained in Davila and Vittetoe's home, a dwelling.

       Second, the State showed that Cavender or McDougald intended to commit a crime

against a person or property therein. Because the suspects attempted to flee the garage and wore

gloves and carried a flashlight, flathead screwdriver, and knives—
                                                                 burglary tools — jury could
                                                                                the

4
 Attached garages constitute part of a victim's dwelling for residential burglary purposes. See,
e. .,
 g State v. Murbach, 68 Wn. App. 509, 513, 843 P. d 551 (1993).Because the garage here
                                                       2
was detached, the defendants' presence in the garage does not prove residential burglary.

                                                16
No. 43208 1 II
          - -



reasonably infer that Cavender and McDougald intended to commit a criminal act at the home.

Also, officers found some of Vittetoe's property from her missing purse on Cavender and

McDougald, including her gift card, credit cards, keys, and a caribiner. From this evidence, the

jury could reasonably infer that Cavender or McDougald intended to commit a crime against a

person or property. Accordingly, viewing this evidence in a light most favorable to the jury's

verdict, any rational trier of fact could have found the essential elements of residential burglary

beyond a reasonable doubt.

       And because the State presented sufficient evidence to prove residential burglary,

Cavender's defense counsel did not provide ineffective assistance by failing to move to dismiss

the charge for lack of evidence because any motion would have been futile.

       We affirm.


       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

040,
2.6.it is so ordered.
  0




                                                                  Johanson, A. .
                                                                            J.
                                                                             C
We concur:




                  Y
                      cnoyar,



                      Bjorge , J.




                                                17
