                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         August 15, 2017


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                            No. 48869-8-II

                        Respondent,

          v.

    MICHAEL WILLIAM RICHIE,                                   UNPUBLISHED OPINION

                        Appellant.



         SUTTON, J. — Michael William Richie appeals his jury trial conviction for second degree

assault. He argues that the State engaged in prosecutorial misconduct “by repeatedly disparaging

defense counsel and impugning his integrity during closing argument.” Br. of Appellant at 8. In

his pro se statement of additional grounds for review1 (SAG), Richie further contends that the

State’s improper legal argument increased the prejudice caused by the use of improper jury

instructions related to a dismissed first degree robbery conviction and that the trial court erred

when it overruled his objections to this argument and denied his motion for mistrial based on this

argument. We affirm.2



1
    RAP 10.10.
2
  Richie also asks us to decline to impose appellate costs. Under RAP 14.2, a commissioner or
clerk of this court has the ability to determine whether appellate costs should be imposed based on
the appellant’s ability to pay and prior determinations regarding indigency. If the State decides to
pursue costs for this appeal, a commissioner can make a determination as to whether costs should
be imposed. Accordingly, we do not address this issue further.
No. 48869-8-II


                                             FACTS

                                         I. BACKGROUND

       The facts of this case are succinctly stated in our opinion from Richie’s first appeal:

               On September 22, 2013, Richie asked James Beeson to drive him to
       Walgreens so he could purchase some items. As Beeson was parking, Kersten
       Gouveia was arriving for her graveyard shift as sales associate. Beeson backed into
       a parking spot near the entrance, which made Gouveia suspicious of the car.

               Although Gouveia was a Walgreens employee, she was not yet on duty and
       was wearing a coat over her Walgreens badge and shirt. She picked up a beverage
       to drink before her shift started and proceeded to the front register to pay. While
       she was at the register, Gouveia watched Richie enter and head to the liquor section.
       She told the employee at the cash register, Leslie Hammitt, to call a code used to
       alert employees of a possible theft.

               Richie removed two bottles of brandy from the shelf and walked toward the
       front of the store, holding one bottle by the neck in each hand. As Richie
       approached, Gouveia took a few steps back from the checkout counter. Richie
       walked between the checkout counter and Gouveia. Gouveia said to Richie, “[S]ir,
       you need to pay for that here. Let me help you.” Report of Proceedings (RP) at
       296. She later testified that she was “giving him good customer service” and trying
       to help him with the bottles. RP at 302.

               When Gouveia reached to help, Richie hit her in the head with one of the
       bottles. Gouveia then grabbed for the other bottle, and Richie ran out of the front
       door dragging Gouveia, who was still holding onto the bottle in Richie’s hand.
       Richie eventually broke away from Gouveia and drove off in Beeson’s car.

State v. Richie, 191 Wn. App. 916, 920-21, 365 P.3d 770 (2015).

                                         II. PROCEDURE

A. TRIAL

       The State charged Richie with first degree robbery and second degree assault. The case

proceeded to a jury trial.

1. JURY INSTRUCTIONS

       After both parties rested, defense counsel proposed the following jury instruction:


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No. 48869-8-II


       A person must have an ownership interest in the property taken, or some
       representative capacity with respect to the owner of the property taken, or actual
       possession of the property taken, for the taking of the property to constitute a
       robbery.

Suppl. Clerk’s Papers (CP) at 68.

       The trial court declined to give this proposed instruction. Instead, it ruled that it would

give the State’s instruction because it was a “more neutral statement as to ownership.” 6 RP (Mar.

27, 2014) at 524. The trial court also stated that the State’s instruction still “allow[ed] the defense

to argue its theory of the case without penalty.” 6 RP (Mar. 27, 2014) at 524.

       The trial court gave the following instruction:

              Theft means to wrongfully obtain or exert unauthorized control over the
       property or services of another, or the value thereof, with intent to deprive that
       person of such property or services. Ownership of the property taken must be in
       some person other than the person or persons who commit the theft.

Suppl. CP at 79 (Jury Instruction No. 8).

2. CLOSING ARGUMENTS

       In closing argument, defense counsel argued that to prove the robbery charge, the State had

to prove beyond a reasonable doubt that Gouveia had a “proprietary or superior interest in the

property” at issue. 6 RP (Mar. 27, 2014) at 557. Defense counsel further argued that the State

failed to carry this burden because there was no evidence that Gouveia was on duty and what her

duties were with regard to the store if she was not working.

       Defense counsel admitted that Richie “did assault” Gouveia, but he argued that Richie was

just trying to escape and “never intended any harm to befall her.” 6 RP (Mar. 27, 2014) at 565.

He also argued that there was no testimony supporting the second degree assault charge because




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No. 48869-8-II


they did not hear any medical evidence about her injuries. He argued that if Richie was “guilty of

anything, he’s guilty of an assault in the third degree.” 6 RP (Mar. 27, 2014) at 567.

       In rebuttal, the State repeatedly argued that the words “proprietary” and “superior” were

not part of the jury instructions or part of the law. 6 RP (Mar. 27, 2014) at 568, 569-70, 573-74.

It further argued that defense counsel was asking the jury to “ignore the law” and read these

extraneous terms into the jury instructions. 6 RP (Mar. 27, 2014) at 568. The State argued that

the jury should instead rely on the court’s jury instructions. Defense counsel objected to this

argument several times, asserting that the State’s argument was a “mischaracterization” or

“misstatement of the law;” he did not assert that this argument denigrated defense counsel. 6 RP

at 568, 570. The trial court “noted” the objection for the record and referred the jury to its written

instructions. 6 RP at 568-69, 570-71.

       Richie moved for a mistrial based on the State’s argument and objections to his closing

argument. He asserted that the State’s argument and objections misstated the law and noted that

the trial court had ruled that Richie could argue his theory that the State had to prove a proprietary

or superior interest in the property. The trial court denied the motion for mistrial.

       The jury found Richie guilty of first degree robbery and second degree assault. The trial

court dismissed the assault charge “on the basis of double jeopardy.” CP at 10.

B. FIRST APPEAL AND REMAND

       Richie appealed the first degree robbery conviction. See State v. Richie, 191 Wn. App.

916, 365 P.3d 770, 778 (2015). In a published opinion, we reversed Richie’s first degree robbery

and remanded the matter for further proceedings. Richie, 191 Wn. App. at 920. We held, in part,

that the to-convict instruction improperly relieved the State of its burden of proving the essential



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No. 48869-8-II


element of robbery—that the victim had an ownership, representative, or possessory interest in the

property taken.3 Richie, 191 Wn. App. at 928, 930.

       We further stated,

       The jury also convicted Richie of second degree assault, but the trial court
       dismissed that conviction on double jeopardy grounds. Because we are reversing
       the first degree robbery conviction, a question exists as to the status of the assault
       conviction. But neither party has briefed this issue, and therefore we direct the trial
       court to address this issue on remand.

Richie, 191 Wn. App. at 930 n.7 (citation omitted).

       On remand, the trial court dismissed the robbery charge without prejudice and, at the

State’s request, reinstated the second degree assault conviction. Richie now appeals his second

degree assault conviction.

                                            ANALYSIS

                                 I. PROSECUTORIAL MISCONDUCT

       Richie argues that the State engaged in prosecutorial misconduct by disparaging and

impugning defense counsel during closing argument when it argued that defense counsel was

disregarding the law and asking the jury to ignore the law and read additional requirements into

the jury instructions. He contends that by impugning defense counsel in this manner, the State

deprived him of his right to effective assistance of counsel and that this was even more egregious

because the trial court had ruled that defense counsel could present this argument. We hold that

even if we presume that Richie’s objection was sufficient, Richie fails to establish that the State’s

argument was improper in this regard.



3
 Because we reversed on this ground, we declined to reach Richie’s “prosecutor[ial] misconduct
during closing argument” issue. Richie, 191 Wn. App. at 920 n.1.


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No. 48869-8-II


        To prevail on this prosecutorial misconduct claim, Richie must establish “that the

prosecutor’s conduct was both improper and prejudicial.” State v. Emery, 174 Wn.2d 741, 756,

278 P.3d 653 (2012). We review the prosecutor’s conduct and the potential prejudice by

examining it “in the full trial context, including the evidence presented, ‘the context of the total

argument, the issues in the case, the evidence addressed in the argument, and the instructions given

to the jury.’” State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal quotation marks

omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).

        Richie is correct that a prosecutor “must not impugn the role or integrity of defense

counsel.” State v. Lindsay, 180 Wn.2d 423, 431-32, 326 P.3d 125 (2014). But the State’s argument

during closing did not disparage defense counsel’s role or impugn his integrity. The State’s

argument merely referred the jury to the trial court’s instructions and emphasized that defense

counsel’s argument did not track those instructions. Because the State did not impugn defense

counsel, Richie fails to show improper conduct and the prosecutorial misconduct argument fails.

                                        II. SAG ARGUMENTS

        In his SAG, Richie first contends that “[t]he prejudice resulting from the instructional

error was magnified by the prosecutor’s improper statement of the law and denigration of defense

counsel during closing argument.” 4 SAG at 1. Richie’s focus is on how the State’s closing

argument potentially increased the prejudice caused by the jury instructions that we previously

held misstated the law as to the first degree robbery charge. Richie does not state, nor is it apparent,

how the legal errors in the State’s argument related to the now-dismissed first degree robbery



4
  To the extent Richie’s SAG argument reiterates appellate counsel’s argument, we have addressed
that issue above.


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No. 48869-8-II


charge affected his remaining second degree assault charge. At no time did Richie argue that the

jury instructions related to the second degree assault charge were incorrect. Because the State’s

misstatement of the law related to the first degree robbery charge and was not relevant to the

second degree assault charge, we hold that Richie is not entitled to relief on this ground.

        Richie next contends that the trial court erred when it failed to sustain his objections to the

State’s closing argument or grant his motion for mistrial based on the State’s improper closing

argument. Richie’s objections during closing argument and his arguments in his motion for

mistrial were limited to whether the State’s closing argument was a proper statement of the law

related to the first degree robbery charge; he did not argue that the State’s argument denigrated

defense counsel. Thus, to the extent Richie is arguing that the trial court should have sustained an

objection or granted a mistrial based on the State’s denigration of defense counsel, he has waived

this argument because he did not object on that ground. RAP 2.5(a). And to the extent Richie is

arguing that the trial court should have sustained his objections or granted a mistrial based on his

assertion that the State had misstated the law related to first degree robbery, Richie cannot show

prejudice as to his second degree assault conviction because these arguments did not relate to that

charge.5, 6




5
  Unlike the disparaging defense counsel claims, which could have potentially harmed defense
counsel’s credibility as a whole, any error in misstating the law would have been limited entirely
to the first degree robbery charge.
6
  “A trial court’s denial of a motion for mistrial ‘will be overturned only when there is a substantial
likelihood the prejudice affected the jury’s verdict.’” State v. Greiff, 141 Wn.2d 910, 921, 10 P.3d
390 (2000) (internal quotation marks omitted) (quoting State v. Russell, 125 Wn.2d 24, 85, 882
P.2d 747 (1994).


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No. 48869-8-II


        Accordingly, because Richie does not establish prosecutorial misconduct and his SAG

contentions fail, we affirm his conviction.

        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 2.06.040,

it is so ordered.



                                                    SUTTON, J.
 We concur:



 MAXA, A.C.J.




 LEE, J.




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