  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE
STATE OF WASHINGTON,                           )     No. 77857-9-I

                          Respondent,
                                               )
            v.
                                               )     UNPUBLISHED OPINION
MATTHEW DAVID LAMB,                            )
                                               )     FILED: June24, 2019
                          Appellant.


       VERELLEN,     J.   —   Matthew Lamb appeals his jury conviction for second

degree identity theft, arguing that prosecutorial misconduct during closing

argument deprived him of a fair trial. But the instances of alleged misconduct

Lamb identifies do not constitute reversible error, either individually or

cumulatively. We affirm.

                                            FACTS

       On June 22, 2017, Riley Ledesma’s truck was burglarized in Blame,

Washington.1 Ledesma’s backpack and computer were taken, along with his

credit card, military identification card, and dog tags.2

       On July 2, 2017, Officer Jacob Wilcox of the Tulalip Police Department was

on patrol when he saw a man rifling through the trunk of a car.3 Another man,

       1   Report of Proceedings (RP) (Oct. 23, 2017) at 129.
           Id. at 130.
           ki. at 136-38.
No. 77857-9-1/2

later identified as Lamb, was sitting in the front passenger seat.4 Officer Wilcox

checked the license plate and learned that the car had been reported stolen.5

Officer Wilcox approached the car and instructed both men to lay on the ground.6

Officer Wilcox noticed that Lamb was wearing Ledesma’s dog tags around his

neck.7

         Officer Jeff Crippen was given some identification cards found with Lamb,

including Ledesma’s military identification card and credit card.8 Officer Crippen

asked Lamb if his name was Riley Ledesma, as listed on the identification card.9

Lamb replied that it was.1° Officer Crippen asked Lamb if his birthday was June

12, 1988, as listed on the identification card.11 Lamb again agreed that it was.12

Officers later determined Lamb’s true identity and that he had outstanding

warrants for his arrest.13 Officers also found Ledesma’s backpack inside the car.14

The State charged Lamb with second degree identity theft. The State argued that

Lamb committed identity theft by using Ledesma’s identity to commit a crime,



         4k1.at 139.
         ~ Id.
         6kLat 142-44.
         7~Lat 155.
         8k1.at 164.
         ~Id.at 184.
         10 Id.

              ki. at 187.
         12   Id.
         13k1.at 180.
         ~4kI.at132-33, 154.



                                          2
No. 77857-9-1/3

namely: obstructing a law enforcement officer. Ledesma testified that he did not

know Lamb and did not give him permission to use his identification. Lamb did not

testify or present evidence. A jury convicted Lamb as charged. Lamb appeals.

                                       DISCUSSION

         Lamb contends that the prosecutor committed misconduct in closing

argument by impermissibly commenting on Lamb’s exercise of his right not to

testify and shifting the burden to him to disprove the elements of the crime and

misstating the State’s burden on a necessary element. Lamb argues that the

prosecutor’s remarks, either individually or cumulatively, violated his right to a fair

trial.

         “A claim of prosecutorial misconduct requires the defendant to show both

that the prosecutor made improper statements and that those statements caused

prejudice.”15 If the defendant fails to object to the alleged misconduct or request a

curative instruction, any error is waived unless the conduct is “so flagrant and ill

intentioned that it evinces an enduring and resulting prejudice” that could not have

been neutralized by a curative instruction to the jury.16 We focus “less on whether

the prosecutor’s misconduct was flagrant or ill intentioned and more on whether

the resulting prejudice could have been cured.”17 In evaluating a claim of

prosecutorial misconduct, this court reviews a prosecutor’s remarks “in the context




         15   State v. Lindsay, 180 Wn.2d 423, 440, 326 P.3d 125 (2014).
         16   State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
         17   State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012).



                                            3
No. 77857-9-1/4

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

argument, and the instructions given to the jury.”18

       Lamb first challenges the prosecutor’s repeated remarks that the evidence

against him was “uncontested.” He argues that this constituted an improper

comment on his exercise of his constitutional right not to testify. In the alternative,

Lamb argues, the prosecutor improperly shifted the burden to him to disprove the

State’s evidence.

       In closing argument, Lamb’s attorney challenged the State’s evidence and

urged the jury to rely on their own common sense in determining whether the State

had proved its case beyond a reasonable doubt. Lamb’s attorney reminded the

jury that Lamb did not have any obligation to testify:

               And I don’t know how many times that I’ve had how people
       would say that I’d sure like to know what the other side of the story is
       from the defendant. Our system is set up to where the State has the
       burden. The defendant does not have to produce any evidence, he
       does not have to take the stand. You have those same rights, just
       like he does. In any given situation well, I’ll leave that up to you.
                                               —


       Hopefully you’re never in that situation.   .  [B]ecause he did not
                                                       .   .


       testify do[es] not infer guilt in any way.[19]

       In rebuttal closing argument, the prosecutor stated:

               Defense is right. You don’t check your common sense at the
       door when you come back here. And defense hasn’t even contested
       the fact that Matthew Lamb used someone else’s identity on that day
       and used that identity to avoid a warrant. That was nowhere in th[eirl
       closing argument. That is the crucial element of this case. He’ll
       point to the Bellingham incidents or the backpack incident or where


       18   State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
       19   RP (Oct. 24, 2017) at 35-36.




                                           4
No. 77857-9-115

          things were at the time, but the crucial [question] here is just did the
          defendant use someone else’s name[?] That is uncontested.[20]

The prosecutor acknowledged that it was unclear where Officer Crippen obtained

the military identification card, arguing that the State’s evidence was

overwhelming:

                  Doesn’t matter, doesn’t matter. What matters is whether he
          used Riley’s name to avoid his warrant. That’s what’s uncontested;
          that’s why I’m asking to return a verdict of guilty.[21]

Lamb did not object to any of the prosecutor’s statements.

          Those charged with a crime have a constitutional right not to testify against

themselves.22 Moreover, ‘[a] defendant has no duty to present evidence; the State

bears the entire burden of proving each element of its case beyond a reasonable

doubt.”23 When a prosecutor improperly remarks on a defendant’s failure to

testify, it violates the defendant’s Fifth Amendment privilege against self-

incrimination.24 Courts consider two factors to determine whether such remarks

are improper: (1) whether the prosecutor manifestly intended the remarks to be a

comment on the defendant’s exercise of his right not to testify and (2) whether the

jury would naturally and necessarily interpret the statement as a comment on the

defendant’s silence.25 However, stating that certain testimony is uncontested is



      20    kI. at 40 (emphasis added).
      21   j~çj~ at 41 (emphasis added).
      22    U.S. CONST. amend. V; WASH. CONST. art. I, sec. 9.
      23    State v. Fleming, 83 Wn. App. 209, 215, 921 P.2d 1076 (1996).
      24    Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106
(1965).



                                             5
No. 77857-9-1/6

not categorically improper. A prosecutor may assert that specific facts are

undisputed unless ‘no one other than [the defendant] himself could have offered

the explanation the State demanded.”26

       Here, the prosecutor’s statement “[t]hat is uncontested” was not improper.

The prosecutor merely pointed out that there was no evidence contradicting the

State’s evidence that Lamb used Ledesma’s identity. The prosecutor did not imply

that Lamb was the only person who could refute the State’s evidence. However, it

was improper for the prosecutor to argue that “defense hasn’t even contested” that

Lamb used Ledesma’s identity “to avoid a warrant.” This was because Lamb was

the only person who could have testified as to his own intent.27 And such a

statement implied that Lamb had an obligation to refute the State’s evidence.

       Nevertheless, because Lamb did not object to the prosecutor’s statements,

he must show that they were so flagrant and ill intentioned that they could not

have been cured by an instruction to the jury. Both Lamb’s attorney and the court

instructed the jury that Lamb was not required to testify and that the jury was not

permitted to infer guilt from Lamb’s silence. We presume that juries follow the

court’s instructions.28 Any prejudicial effect was mitigated by these instructions.29

      25  State v. Barr~i, 183 Wn.2d 297, 307, 352 P.3d 161 (2015) (quoting State
v. Crane, 116 Wn.2d 315, 331, 804 P.2d 10 (1991)).
       26 State v. Fiallo—Lopez, 78 Wn. App. 717, 729, 899 P.2d 1294 (1995).

      27   ~ ki. (prosecutor improperly shifted the burden of proof to the defendant
by arguing there was “absolutely” no evidence explaining why the defendant was
in the same location as a drug transaction because only the defendant could have
rebutted this argument).
        28 State v. Hanna, 123 Wn.2d 704, 711, 871 P.2d 135 (1994).

      29   See, e.g., State v. Ashby, 77 Wn.2d 33, 38, 459 P.2d 403 (1969).



                                          6
No. 77857-9-1/7

       Lamb also challenges the prosecutor’s explanation of the to-convict

instruction. He argues that the prosecutor misstated and minimized the State’s

burden regarding the element of knowledge.3°

       A person is guilty of second degree identity theft if he or she knowingly

obtains, possesses, uses, or transfers a means of identification or financial

information of another person, living or dead, with the intent to commit, or to aid or

abet, any crime.31 The court gave the following to-convict instruction for second

degree identity theft:

             To convict the defendant of the crime of identity theft in the
       second degree, the following elements of the crime must be proved
       beyond a reasonable doubt:

               (1) That on or about the 2nd day of July 2017, the defendant
       knowingly possessed, transferred, or used a means of identification
       or financial information of another person;

                (2) That the defendant did so with the intent to commit any
       crime;

              (3) That the defendant knew that the means of identification or
       financial information belonged to another person; and

             (4) That any of these acts occurred in the [s]tate of
       Washington.[32J




      30 The State inexplicably failed to address this argument in its brief. Lamb
argues that the State thus conceded error on this issue. We elect to evaluate
Lamb’s claim on the merits.
      31 RCW 9.35.020.

      32   Clerk’s Papers (CP) at 102.



                                           7
No. 77857-9-I/S

       After outlining the first two elements, the prosecutor stated:

              We gave you a definition of “intent” and “knowingly.” Those
       words are here.. But “knowingly”. is No. 8[.] [W]hat it means to be
                                          .   .


       knowingly [is] basically if someone knows something. Right? If you
       know that you’re using someone else’s name, then you knowingly
       are using someone else’s name. Pretty simple. Not a lot of
       argument, I expect, on that point. And same with “intent.” If you
       mean something to happen, and you do it, you intended it to happen.
       So we’ll set aside those.

             That the defendant knew that the means of identification or
       information belonged to another person. Did he know Riley
       Ledesma was not him[?] I think we can all figure that one out.~331

       Citing State v. Zeferino-Lopez,34 Lamb asserts that the prosecutor

misstated the law because the State was required to prove that Lamb knew the

identification belonged to another real person, not that he knew the identification

did not belong to him.

       In Zeferino-Lopez, the defendant purchased a fraudulent Social Security

card with his name on it and used it to obtain employment and a bank account.35

He acknowledged that the card was fraudulent, but testified that he did not know

the Social Security number actually belonged to another real person.36 The

prosecutor argued to the jury that the State was required to prove only that the

defendant knew that the card was not his.37 This court disagreed, holding that the




      ~ RP (Oct. 24, 2017) at 18-19.
      ~ 179 Wn. App. 592, 599, 319 P.3d 94 (2014).
         ki. at 593-94.
      36 Id. at 595.
      ~ Id.



                                          8
No. 77857-9-1/9

plain language of the statute required the State to prove the defendant knew the

Social Security number actually belonged to someone else.38

       Here, when the prosecutor told the jury they had to find “[t]hat the defendant

knew that the means of identification or information belonged to another person,”

that was a correct statement of the law. However, the prosecutor’s next

statement, “Did he know Riley Ledesma was not him?”, was potentially misleading

because the jury could have inferred that they only had to find Lamb was using

identification that he knew did not belong to him.

       “A prosecuting attorney commits misconduct by misstating the law.”39

Nevertheless, Lamb did not object to the prosecutor’s statement. When no

objection is made to a prosecutor’s misstatement of law during closing argument,

we will not reverse unless the misstatement was so flagrant and misleading that it

could not have been corrected by a curative instruction.40 Had Lamb objected, the

court could have remedied the misstatement by reiterating the language in the to-

convict instruction, requiring the jury to find that Lamb “knew that the means of

identification or financial information belonged to another person.” The court could

also have reminded the jury of jury instruction 1, which provided:

             The lawyers’ remarks, statements, and arguments are
      intended to help you understand the evidence and apply the law. It is
      important, however, for you to remember that the lawyers’
      statements are not evidence. The evidence is the testimony and the
      exhibits. The law is contained in my instructions to you. You must

      38kLat600.
      ~ State v. AlIen, 182 Wn.2d 364, 373, 341 P.3d 268 (2015).
      ~° State v. Reed, 168 Wn. App. 553, 578, 278 P.3d 203 (2012) (quoting
State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).



                                          9
No. 77857-9-1/10

       disregard any remark, statement, or argument that is not supported
       by the evidence or the law in my instructions.~411

Even if the prosecutor’s remarks constituted misconduct, reversal is not warranted.

       Lamb argues that we should reverse his conviction due to the cumulative

effect of the prosecutor’s improper remarks. “The cumulative error doctrine applies

‘when there have been several trial errors that standing alone may not be sufficient

to justify reversal but when combined may deny a defendant a fair trial.”42 While

we conclude that the prosecutor’s remarks were improper, the combined effect

from these improper remarks did not create the requisite prejudice necessary to

establish cumulative error.

      Affirmed.


                                                           F,,
WE CONCUR:




   C4~d                                        ______




      41   CP at 97.
      42 In re Pers. Restraint of Morris, 176 Wn.2d 157, 172, 288 P.3d 1140
(2012) (quoting State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000)).


                                        10
