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                                                                                                        261 i MAR 25 % M 8: 53
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                                                                                                                                            S H E 14 U C
      IN THE COURT OF APPEALS OF THE STATE OF WASH '

                                                       DIVISION II

STATE OF WASHINGTON,                                              I                  No. 44020 -2 -II


                                           Respondent,


         V.



ENRIQUE CAHUE,                                                               UNPUBLISHED OPINION




         LEE, J. —         A   jury found      Enrique Cahue guilty      of second   degree       assault.         Cahue appeals


his   conviction      and      sentence    arguing ( 1)    the prosecutor committed misconduct during closing

argument, (        2) he   received     ineffective    assistance     of counsel,   and (   3)    the trial court erred by

finding he has the ability or likely future ability to pay his legal financial obligations. We affirm.
                                                                FACTS


         On February 13, 2012, the State charged Cahue with one count of second degree assault

and one count of           fourth degree       assault.'   At the conclusion of his jury trial, the State made the

following comment in its closing argument:

                     When        you' re    thinking       of   beyond   a   reasonable          doubt —beyond                     a

         reasonable doubt means that you have an abiding belief in the truth of the charge.
         What does your,head, what does your heart, what does your gut say?

2 Report      of   Proceedings     at   232.   The jury found Cahue guilty of second degree assault. Cahue' s

judgment and sentence contains the following finding:



1
    The facts underlying the         assault are    immaterial to Cahue'     s appeal.
No. 44020 -2 -II



          The court has considered the total amount owing, the defendant' s past, present,
          and future ability to pay legal financial obligations, including the defendant' s
          financial resources and the likelihood that the defendant' s status will change. The
          court finds that the defendant has the ability or likely future ability to pay the
          legal financial obligations imposed herein.


Clerk' s Papers ( CP) at 5.
                                                           ANALYSIS


          Cahue appeals his conviction arguing that ( 1) the prosecutor' s comment during closing

argument was           flagrant    and   ill-intentioned   misconduct, (   2) he received ineffective assistance of


counsel because his defense counsel did not object to the prosecutor' s comment, and ( 3) the trial

court erred by entering the finding regarding his ability or likely future ability to pay legal

financial      obligations.       The prosecutor' s comment during closing argument was not misconduct.

Because the prosecutor' s comment was not misconduct, Cahue' s defense counsel was not

deficient      by failing    to    object   to the   comment.       Finally, Cahue' s challenge to the trial court' s

finding on his ability or likely future ability to pay legal financial obligations is not properly

before this court. Accordingly, we affirm.

A.        PROSECUTORIAL MISCONDUCT


          This court reviews a trial court' s ruling on allegations of misconduct during closing

argument        for   an   abuse   of    discretion.   State v. Stenson, 132 Wn.2d 668, 718, 940 P. 2d 1239


 1997),    cent.      denied, 523 U. S. 1008 ( 1998).          The defendant alleging prosecutorial misconduct

must show that the prosecutor' s conduct was both improper and prejudicial. State v. Emery, 174

Wn.2d 741, 756, 278 P. 3d 653 ( 2012).                     This court will reverse for prosecutorial misconduct


when   there is        a substantial     likelihood that the    argument affected     the   jury   verdict.   Emery, 174

Wn.2d     at    760.    If a defendant fails to object to improper comments at trial, request a curative


instruction, or move for a mistrial, this court will not reverse unless the misconduct was so



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       E[ owl]
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flagrant and ill intentioned that no curative instructions could have obviated the prejudice


engendered by the misconduct. Emery, 174 Wn.2d at 760 -61.

         Cahue did         not    object   to the    prosecutor' s         closing   argument    at    trial.   Cahue, however,


argues   that the   prosecutor' s comment was                 flagrant      and   ill intentioned. This court' s decision in


State v. Curtiss, 161 Wn. App. 673, 250 P.3d 496, review denied, 172 Wn.2d 1012 ( 2011),

controls   here.     In Curtiss, the defendant argued that the prosecutor committed misconduct by
                                                                                                                                2
asking the jurors if       they knew in       their   heads    and       their hearts that the   defendant      was   guilty.       161


Wn.    App.   at    701.        This court rejected Curtiss' s argument that the prosecutor' s comments


improperly    appealed          to the   jury' s   emotion.      Curtiss, 161 Wn.         App.    at    702.    The prosecutor' s


comment during Cahue' s trial is indistinguishable from the comment made in Curtiss.

Therefore, the prosecutor did not improperly appeal to the jury' s emotion.

         Further, the trial court instructed the jury:

                    As jurors,      you are officers of         this     court.   You must not let your emotions
         overcome your rational              thought    process.         You must reach your decision based on
         the facts proved to you and on the law given to you, not on sympathy, prejudice,
         or personal preference.             To assure that all parties receive a fair trial, you must act
         impartially With an earnest desire to reach a proper verdict

Suppl. CP     at   36.     This    court presumes       the   jury     follows the trial   court' s     instructions.    Thus, the


trial court' s instruction to decide the case on the evidence rather than emotion cured any

potential prejudice caused            by    the    prosecutor' s comment.            Curtiss, 161 Wn. App. at 702 ( citing

2
    Specifically the prosecutor in Curtiss argued:
                     This trial is a search for the truth and a search for justice, and the
          evidence       in this   case    is overwhelming. [            Curtiss] is guilty of Murder in the First
          Degree    as an accomplice.              Consider    all   the   evidence as a whole.         Do you know in
          your     gut—    do you know in your heart that Renee Curtiss is guilty as an
          accomplice       to    murder?     The answer is yes."
161 Wn. App. at 701.



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No. 44020 - -II
          2



State   v.   Stein, 144 Wn.2d 236, 247, 27 P. 3d 184 ( 2001)).                     Moreover, Cahue has not shown how


any potential prejudice could not have been cured by an additional instruction to the jury.

Curtiss, 161 Wn. App. at 702 ( citing State v. Gentry, 125 Wn.2d 570, 640, 888 P. 2d 1105, cent.

denied, 516 U.S. 843 ( 1995); State                 v.   Russell, 125 Wn.2d 24, 86, 882 P. 2d 747 ( 1994),                cent.




denied, 514 U.S. 1129 ( 1995)).


             Cahue relies on In re Personal Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673

 2012),      to argue that the prosecutor committed misconduct by urging the jury to rely on their

head, heart        and     gut rather     than   probative      evidence     and   sound    reason.     Cahue' s reliance on


Glasmann is misplaced.


             In Glasmann, the prosecutor used a picture slideshow during closing argument; the

pictures      were       captioned   with   phrases      such    as "     DO YOU BELIEVE HIM?"               and "   GUILTY,


GUILTY, GUILTY"                across      the defendant'    s   face.      175 Wn.2d      at   706.   Our Supreme Court' s


comments about urging the jury to disregard probative evidence and sound reason were in the

context of holding that the prosecutor engaged in flagrant and ill- intentioned misconduct by

relying      on   unadmitted    evidence      in closing    argument:-       Glasmann, 175 Wn.2d             706.
                                                                                                          at -       Unlike the -


prosecutor in Glasmann, the prosecutor here made one, isolated comment referencing the jury' s

heart   and       gut.    Nothing about the prosecutor' s conduct in Cahue' s case rises to the level of

misconduct         disapproved       of   in Glasmann.       Accordingly, the prosecutor' s comments in this case

were not improper, and we reject Cahue' s claim of prosecutorial misconduct.




                                                                    Ill
No. 44020 -2 -II




B.        INEFFECTIVE ASSISTANCE OF COUNSEL


          Cahue also argues that he received ineffective assistance of counsel because his defense

counsel    failed to     object   to the   prosecutor' s   comment       during   closing    argument.    As explained


above, the prosecutor' s comment was not improper; therefore, Cahue' s defense counsel was not

deficient for     failing   to   object.   Cahue cannot meet his burden to show ineffective assistance of


counsel.



          This    court reviews      ineffective   assistance of counsel claims        de    novo.    State v. Sutherby,

165 Wn.2d 870, 883, 204 P. 3d 91,6 ( 2009).                    In reviewing ineffective assistance of counsel

claims,    this    court    begins   with    a   strong   presumption      of   counsel' s    effectiveness.     State v.


McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).                            A defendant claiming ineffective

assistance of counsel has the burden to establish that ( 1) counsel' s performance was deficient and

 2) the   performance prejudiced            the defendant'   s case.    Strickland v. Washington, 466 U. S. 668,


687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                   Failure to establish either prong is fatal to an

ineffective assistance of counsel claim: _
                                         Strickland, 466 U.S. at 700:


          If the defendant bases his ineffective assistance of counsel claim on defense counsel' s

failure to   object,     the defendant      must show      that the    objection would       have   succeeded.   State v.


Gerdts, 136 Wn.          App.    720, 727, 150 P. 3d 627 ( 2007).        Here, the prosecutor' s comment was not


improper     and   it   was not misconduct.         Therefore, the trial court would not have had grounds to


sustain    defense      counsel' s objection.      Because any objection defense counsel may have made to

the prosecutor' s comment would not have succeeded, defense counsel' s performance was not

deficient. Cahue has failed to meet his burden to show ineffective assistance of counsel because




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No. 44020 -2 -II



he   cannot show   that defense   counsel' s performance was         deficient.   Accordingly, his claim must

fail.


C.      LEGAL FINANCIAL OBLIGATION FINDING


        Finally, Cahue argues that the trial court' s finding that he had the ability or likely future

ability to pay legal financial    obligations   is   not supported     by   substantial   evidence.   Under this


court' s decision in State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d 492, review granted, 178

Wn.2d 1010 ( 2013), Cahue may         not raise   this   challenge    for the first time. on   appeal.   See also


RAP 2. 5.    Furthermore, as explained in State v. Lundy, 176 Wn. App. 96, 108, 308 P. 3d 755

 2013), Cahue' s claim is not ripe for this court' s review until the State attempts to collect legal


financial obligations from Cahue. Accordingly, Cahue' s claim regarding the trial court' s finding

on legal financial obligations is not properly before Ahis court.

        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


2.06. 0405 it is so ordered.-



                                                                        2          Lee, J.




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