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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                                                                               11)
                                                                                    7,*    Q7 Min
STATE OF WASHINGTON,                      )                                                  r-
                                          )       No. 74231-1-1
                                                                                           -4 CI
                     Respondent,          )                                                C:)          "
                                                                                                 ..<
                                                                                                 0..4
                                          )       DIVISION ONE
              v.                          )
                                          )       UNPUBLISHED OPINION
ANDREW YIN WONG,                          )
                                          )
                     Appellant.           )       FILED: May 22, 2017
                                          )

       TRICKEY,    A.C.J. — Andrew Wong appeals his felony conviction of

possession of a stolen vehicle. Wong argues that his right to a fair trial was

infringed when the prosecutor committed misconduct by giving his personal

opinion on Wong's narrative of the case, trivializing the State's burden of proof,

and telling the jury that there may be no downside to a conviction. Wong further

contends that his trial counsel was ineffective for failing to object to or move for a

new trial based on the prosecutor's comments on the burden of proof and the effect

of a conviction. Because the prosecutor's comments were proper and Wong has

not demonstrated that he was prejudiced by them or that he received ineffective

assistance of counsel, we affirm.
No. 74231-1-1/2


                                       FACTS

       On the evening of February 3, 2014, Auburn Police Department (APD)

Officer Tyson Luce was on patrol. He saw a white Honda car parked across

several spaces in an Albertson's grocery store parking lot. Officer Luce conducted

a computer records check on the Honda's license plate and saw that it was listed

as stolen.

       The Honda made a U-turn and passed close to Officer Luce's vehicle.

Officer Luce saw that the driver was male, Hispanic or Asian, had dark hair, was

approximately 20 to 30 years old, and was wearing a black leather jacket. Officer

Luce called for backup and followed the Honda to a McDonald's restaurant.

       The Honda entered the McDonald's drive through. While Officer Luce was

watching the Honda, he saw a person matching the appearance of the driver run

away. Officer Luce moved his car and saw that the Honda's driver side door was

open and nobody was in the car. Officer Luce notified dispatch and other officers

that the driver had left the Honda.

       Officer Luce pursued the driver in his patrol car but lost sight of him. Officer

Luce drove to a nearby 7-Eleven store and saw a person matching the driver's

appearance standing outside. Less than 10 minutes had elapsed between when

Officer Luce lost sight of the driver and saw the person outside the 7-Eleven.

       Officer Luce approached the driver, told him he was under arrest, and

ordered him to lay on the ground. The driver eventually complied, and a second

police unit arrived and placed him in handcuffs. Officer Luce searched the driver

incident to arrest. Officer Luce removed a Washington state identification card and


                                          2
No. 74231-1-1/3


a driver's license identifying the driver as Wong, a set of keys, and a pair of black

gloves. Two of the keys were "shaved" or "bump" keys that could be used to start

multiple motor vehicles.

          Wong was placed in a patrol car and Officer Luce advised him of his

Mirandal rights. Wong told Officer Luce that he was an automotive technician and

was in the area to visit a friend.

          Officer Luce returned to the Honda and observed that it was running without

a key in the ignition. This was consistent with someone having used a shaved key

to start the vehicle.

          APD Detective Joshua Matt interviewed Wong at the Regional Justice

Center. Detective Matt advised Wong of his Miranda rights. Wong told Detective

Matt that Wong's good friend Chris had dropped him off at the 7-Eleven. Wong

said he did not know Chris's last name and Wong did not provide any contact

information for Chris. When asked about the shaved keys in his possession, Wong

responded that he was an automotive technician. Wong said he knew that shaved

keys were frequently used for vehicle theft, but did not give a reason for why an

automotive technician would need them.

          Rory Pesacreta, the owner of the Honda, stated that the Honda had been

stolen from a Fred Meyer grocery store in Renton in January 2014. Pesacreta said

that the keys and gloves recovered from Wong did not belong to him. Pesacreta

testified that he did not know Wong and that Wong did not have permission to use

the Honda.



1   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
                                            -3-
No. 74231-1-1/4


       Wong did not testify or call any witnesses at trial.

       During closing argument, the prosecutor summarized Officer Luce's

testimony and then said that Wong's narrative did not make sense. Wong objected

and was overruled by the trial court.

       Later in his closing argument, the prosecutor analogized the beyond a

reasonable doubt standard of proof to the certainty that the light in a refrigerator

goes out when the door closes. Wong did not object.

      During rebuttal, the prosecutor gave the jury an explanation of the trial

court's first instruction. The prosecutor told the jury that it was not allowed to

consider the punishment or any other downside that could follow from a guilty

verdict. Wong did not object.

      The jury found Wong guilty of possession of a stolen vehicle. Wong

appeals.

                                     ANALYSIS

                             Prosecutorial Misconduct

       Wong argues that the prosecutor committed misconduct and deprived

Wong of a fair trial when he disparaged Wong's narrative of the case, trivialized

the State's burden, and erroneously told the jury that there may be no downside to

a conviction. The State responds that all three comments were proper, and even

if they were improper Wong has not shown that he was prejudiced. We agree with

the State.

       "The right to a fair trial is a fundamental liberty secured by the Sixth and

Fourteenth Amendments to the United States Constitution and article!, section 22
No. 74231-1-1/5


of the Washington State Constitution." In re Pers. Restraint of Glasmann, 175

Wn.2d 696, 703, 286 P.3d 673 (2012). "[A] prosecutor cannot use his or her

position of power and prestige to sway the jury and may not express an individual

opinion of the defendant's guilt, independent of the evidence actually in the case."

Glasmann, 175 Wn.2d at 706.

       "Prosecuting attorneys are quasi-judicial officers who have a duty to

subdue their courtroom zeal for the sake of fairness to a criminal defendant." State

v. Fisher, 165 Wn.2d 727, 746, 202 P.3d 937 (2009). Thus, misconduct by a

prosecutor may infringe on a defendant's right to a fair trial. State v. Davenport,

100 Wn.2d 757, 762, 675 P.2d 1213 (1984).

       The court applies a two-prong test for determining whether prosecutorial

misconduct requires reversal: "(1) whether the prosecutor's comments were

improper and (2) if so, whether the improper comments caused prejudice." State

v. Lindsay, 180 Wn.2d 423, 431, 326 P.3d 125 (2014) (citing State v. Warren, 165

Wn.2d 17, 26, 195 P.3d 940 (2008)). The prosecuting attorney is presumed to act

impartially. Fisher, 165 Wn.2d at 746. To prove prejudice, the defendant must

prove that "there is a substantial likelihood [that] the instances of misconduct

affected the jury's verdict." State v. Thorgerson, 172 Wn.2d 438, 442-43, 258 P.3d

43(2011) (alteration in original) (internal quotation marks omitted) (quoting State

v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)).

       "When reviewing a claim that prosecutorial misconduct requires reversal,

the court should review the statements in the context of the entire case."




                                        -5-
No. 74231-1-1/6


Thorgerson, 172 Wn.2d at 443 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d

747 (1994)).

      Personal Opinion on Defense

       Wong argues that the prosecutor committed misconduct by improperly

offering his personal opinion on Wong's credibility by disparaging Wong's narrative

of the facts. The State responds that the prosecutor was not expressing personal

opinion because his statements were reasonable inferences from the evidence

presented at trial. We agree with the State.

      "In closing argument the prosecuting attorney has wide latitude to argue

reasonable inferences from the evidence, including evidence respecting the

credibility of witnesses." Thoraerson, 172 Wn.2d at 448. But the prosecutor may

only use probative evidence, and should not use arguments that inflame the

passion or prejudice of the jury. Glasmann, 175 Wn.2d at 704. The prosecutor

must refrain from offering personal opinions on the guilt of the defendant or the

credibility of witnesses. Lindsay, 180 Wn.2d at 437.

      A prosecutor improperly expresses personal opinion "(1) if the prosecutor

expresses his or her personal belief as to the veracity of the witness or (2) if the

prosecutor indicates that evidence not presented at trial supports the witness's

testimony." State v. lsh, 170 Wn.2d 189, 196, 241 P.3d 389 (2010) (citing United

States v. Brooks, 508 F.3d 1205, 1209 (9th Cir‘ 2007)).

      "Prejudicial error does not occur until. . . it is clear and unmistakable that

counsel is not arguing an inference from the evidence, but is expressing a personal




                                         6
No. 74231-1-1/7


opinion." State v. McKenzie, 157 Wn.2d 44, 54, 134 P.3d 221 (2006) (quoting

State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59 (1983).

       Here, when viewed in the context of the entire case, the prosecutor's

description of Wong's narrative was not improper. During closing argument, the

prosecutor summarized Officer Luce's testimony and then called Wong's narrative

"bologna" and "a made up story because it doesn't make any sense."2 Wong

objected, arguing that the State was not permitted to "inject personal opinions and

attacks and we're approaching that."3 The trial court decided that the prosecutor's

comments did not rise to the level of personal opinion or attacks and overruled the

objection. The prosecutor continued to describe Wong's narrative as "nonsense."

       The prosecutor's statements were not improper expressions of personal

opinion on Wong's credibility or guilt. The prosecutor first gave a detailed summary

of Officer Luce's testimony describing the events leading up to his encounter with

Wong at the 7-Eleven. He then contrasted Officer Luce's testimony with Wong's

narrative that he had been dropped off by a good friend whose last name Wong

could not recall. The prosecutor called Wong's narrative "bologna," "made up,"

and "nonsense," but then reiterated that Officer Luce's testimony contradicted

Wong's statements to police. Thus, the prosecutor's comments were based on

the testimony presented at trial and inferences therefrom, and did not constitute

improper personal opinion on Wong's guilty or credibility.5


2 Report of Proceedings (RP) (June 9, 2015) at 236-38.
3 RP (June 9, 2015) at 238-39.
4 RP (June 9, 2015) at 239.
5 Wong analogizes to several cases from other jurisdictions in support of his contention
that the prosecutor's comments in this case were improper. See State v. Acker, 265 N.J.
Super. 351, 356, 627 A.2d 170 (App. Div. 1993); United States v. Sanchez, 176 F.3d 1214,

                                         -7-
No. 74231-1-1/8


       Moreover, Wong has not shown that he was prejudiced by the prosecutor's

comments. Wong argues that the State's case against him was weak because

Officer Luce lost sight of the car's driver, his description of the driver was vague,

and Wong was not out of breath or sweating when Officer Luce encountered him

at the 7-Eleven. But Officer Luce lost sight of the driver for only a short period of

time and the State's case against Wong was supported by other evidence,

including his possession of shaved keys and his inability to sufficiently identify his

friend Chris. Wong also argues that the prejudicial impact of the prosecutor's

improper comment was enhanced because the court overruled Wong's objection.

Because the prosecutor's comment was not improper, the court's denial of Wong's

objection did not enhance its prejudice.

       In sum, the prosecutor's comments were not improper because they were

based on the evidence presented at trial and reasonable inferences therefrom and

thus did not infringe on Wong's right to a fair trial. Further, even if the comments

were improper, Wong has not shown that the comments prejudiced him.

       Trivialization of Burden of Proof

       Wong argues that the prosecutor committed misconduct when he

improperly trivialized the burden of proof by comparing it to the certainty that the

light in a refrigerator goes off when the door closes. The State argues that the

prosecutor properly used the analogy to explain that circumstantial evidence was



1225 (9th Cir. 1999); State v. Holly, 228 N.C. App. 568, 749 S.E.2d 110 (2013; Ross v.
State, 726 So.2d 317, 319 (Fla. Dist. Ct. App. 1998). The cases cited by Wong are
distinguishable from the present case because they involved repeated and egregious
prosecutorial comments that go far beyond what is at issue in the present case. We do
not find them persuasive.
                                           -8-
No. 74231-1-1/9


sufficient to meet the standard of proof and that Wong has not shown that the

argument was flagrant and ill intentioned. We agree with the State.

       A misstatement about the standard of proof or the presumption of innocence

"constitutes great prejudice because it reduces the State's burden and undermines

a defendant's due process rights." State v. Johnson, 158 Wn. App. 677, 686, 243

P.3d 936 (2010). A prosecutor may not minimize the gravity of the State's burden

by comparing it to the certainty people generally require when they made everyday

life decisions. State v. Anderson, 153 Wn. App. 417, 431, 220 P.3d 1273 (2009).

       If the defendant fails to object to the allegedly improper remark, the court

will not find reversible "error unless the remark is so flagrant and ill intentioned that

it causes an enduring and resulting prejudice that could not have been neutralized

by an admonition to the jury." Russell, 125 Wn.2d at 86; see Anderson, 153 Wn.

App. at 431-32 (although prosecutor's analogy of reasonable doubt standard to

everyday decision-making and comment implying that jury had to find a reason to

find Anderson not guilty were improper, defendant failed to object below and did

not demonstrate on appeal that the comments were so flagrant or ill intentioned

that an instruction could not have cured the prejudice).

       Here, the prosecutor's analogy was not improper. The prosecutor

analogized the beyond a reasonable doubt standard of proof to the certainty that

the light in a refrigerator turns off when the door is closed to assert to the jury that

the State may rely on circumstantial evidence and still meet its burden of proving

its case beyond a reasonable doubt. The prosecutor's analogy did not relate to

the certainty that jurors might require when making other decisions in their lives.


                                           9
No. 74231-1-1/10


Rather, it concerned the level of certainty that a particular phenomenon occurred

despite there not being direct evidence supporting that certainty. Further, during

rebuttal the prosecutor emphasized to the jury that Wong benefited from the

presumption of innocence and that the State bore the burden of proving his guilt

beyond a reasonable doubt. Thus the prosecutor did not use the analogy to

improperly minimize the gravity of the State's burden of proof or the presumption

of innocence.

      Further, Wong did not object to the prosecutor's analogy. Therefore he

must show that the prosecutor's analogy resulted in an enduring and resulting

prejudice that could not be cured by a curative instruction. Wong has not made

that showing. Wong argues that the prosecutor's comments trivializing the State's

burden of proof deprived him of a fair trial. But he does not argue that a curative

instruction would not have addressed the effect of this analogy if it was improper.

Thus, Wong has not demonstrated that the prosecutor's analogy was so flagrant

and ill intentioned that an instruction below would not have cured the prejudice.

      Minimization of Importance of Jury's Role

      Wong argues that the prosecutor committed misconduct by improperly

minimizing the importance of the jury's decision when he said during closing

argument to the jury that there may be no downside to a criminal conviction. The

State responds that Wong mischaracterizes the prosecutor's argument, which was

a response to Wong's statements during closing argument and was a correct

statement that the jury could not consider what punishment may be imposed on

Wong. We agree with the State.


                                       - 10-
No. 74231-1-1/11


          "Generally, in noncapital cases, the jury's sole function is to decide the

defendant's guilt or innocence, and it should 'reach its verdict without regard to

what sentence might be imposed." State v. Rafav, 168 Wn. App. 734, 776, 285

P.3d 83 (2012) (internal quotations marks omitted) (quoting Shannon v. United

States, 512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994)).

          Generally, remarks made by a prosecutor in response to defense counsel

are not reversible error unless they "go beyond a pertinent reply and bring before

the jury extraneous matters not in the record, or are so prejudicial that an

instruction would not cure them." State v. La Porte, 58 Wn.2d 816, 822, 365 P.2d

24 (1961). For example, the Court of Appeals has held that a prosecutor's

repeated comments on the judge's role in determining a defendant's punishment

during rebuttal, despite several sustained objections, was improper. State v.

Torres, 16 Wn. App. 254, 262-63, 554 P.2d 1069 (1976).

          A defendant who fails to object to an improper remark cannot later challenge

that remark unless it is so flagrant and ill intentioned that it could not have been

cured by an additional instruction. Russell, 125 Wn.2d at 86.

          The jury instructions said in relevant part, "You have nothing whatever to do

with any punishment that may be imposed in case of a violation of the law. You

may not consider the fact that punishment may follow conviction except insofar as

it may tend to make you careful."6 During the defense's closing argument, Wong

reminded the jury that the crime at issue was a felony. During rebuttal, the

prosecutor referred the jury to the instructions they had been given. He then



6   Clerk's Papers at 20-21 (Instruction 1).
No. 74231-1-1/12


explained to the jury that "you're not supposed to even consider the level of

downside if there is a downside to a conviction. There's no punishment

consideration that you're allowed to make."7

       If the prosecutor had suggested that there was no downside to a criminal

conviction, the argument would be improper. But here, the prosecutor did not

argue that a guilty verdict would not impact Wong. When read in context, the

prosecutor's remarks are in response to Wong's statements during his closing

argument that the crime at issue was a felony. The jury instruction told the jury

that, "You may not consider the fact that punishment may follow a conviction

except insofar as it may tend to make you careful."

       In explaining this instruction, the prosecutor accurately stated that even if

Wong would be negatively impacted by a criminal felony conviction, the jury was

not allowed to consider that effect. The prosecutor's statement that the jury could

not consider any negative effect of a criminal conviction is not equivalent to arguing

that there may be none at all, and Wong has not shown that the remarks were

beyond the scope of an acceptable reply.8 Therefore, the prosecutor's argument

did not unfairly trivialize the jury's decision by arguing that convicting Wong would

have no effect.




7RP (June 9, 2015) at 264-65.
8During closing argument, Wong asked the jurors "Would you bet your house on it? Would
you bet your kids' future on it?" when discussing the reasonable doubt standard. RP (June
9, 2015) at 263. In rebuttal, the prosecutor referred back to these rhetorical questions
when explaining the jury instruction. Wong argues that the prosecutor's response
exceeded its permissible scope. As discussed above, the prosecutor's comments were
not improper. Further, Wong has not argued that he suffered from incurable prejudice.
                                         -12-
No. 74231-1-1/13


      Wong contends that it was disingenuous for the prosecutor to tell the jury

that there may be no downside to a conviction. Wong then describes the impact

of a felony conviction on defendants, and contends that the prosecutor's statement

contributed to the unfairness that permeated the trial. This argument does not

have merit. The prosecutor was correctly explaining to the jury that it could not

consider the ultimate punishment imposed on Wong following a guilty verdict,

including any potential downsides that may result. Thus the prosecutor's comment

was not disingenuous.

       Moreover, Wong did not object to the prosecutor's argument. On appeal,

Wong had to show that the comment was so flagrant and ill intentioned that further

instruction from the trial court would not have cured any prejudice in order for this

court to review it. Wong has argued that the prosecutor's comments minimized

the jury's role and thus deprived him of a fair trial. But Wong has not argued that

the comments were flagrant and ill intentioned, or that they could not have been

cured by further instruction from the trial court. Therefore, even if the prosecutor's

argument was improper, Wong has not shown that it may be reviewed on appeal.

       Cumulative Error

       Wong argues that the prejudice of the three challenged comments of the

prosecutor combined to deprive him of a fair trial.

       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." State v. Greiff, 141 Wn.2d 910, 929,

10 P.3d 390 (2000). "The doctrine does not apply where the errors are few and


                                        -13-
No. 74231-1-1/14


have little or no effect on the outcome of the trial." State v. Weber, 159 Wn.2d 252,

279, 149 P.3d 646 (2006).

          Here, the cumulative error doctrine does not apply because the prosecutor's

comments were all proper and thus did not prejudice Wong. Further, even

assuming that the comments were improper, Wong has not argued how the

alleged improper comments affected the outcome of the trial beyond asserting that

the jury "would have found a reasonable doubt and voted to acquit."9 This

conclusory assertion is insufficient to show that prejudice, if any, from the

prosecutor's comments affected the outcome of the trial.

                              Ineffective Assistance of Counsel

          Wong argues that, if this court concludes that the prosecutor's comments

were improper and could have been cured by an instruction, he received ineffective

assistance of counsel. Specifically, Wong argues that counsel should have

objected to the prosecutor's statements about the burden of proof and about the

effect of a criminal conviction, or moved for a mistrial. The State responds that

Wong's counsel was not deficient because the prosecutor's remarks were not

improper and Wong has not established sufficient prejudice. We agree with the

State.

          "To prove that he was denied his right to effective assistance of counsel, a

defendant must demonstrate both that the trial counsel's conduct fell below a

minimum objective standard of reasonable attorney conduct and that the deficient

performance prejudiced him." State v. West, 139 Wn.2d 37, 41-42, 983 P.2d 617



9   Br. of Appellant at 10.
                                           - 14-
No. 74231-1-1/15


(1999) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984)). A defendant must establish both prongs to support a claim of

ineffective assistance of counsel. Strickland, 466 U.S. at 687. To show prejudice,

a defendant must establish "that, but for his counsel's errors, the result of the

proceeding would have been different." West, 139 Wn.2d at 42.

       Whether counsel was constitutionally ineffective is a mixed question of law

and fact that this court reviews de novo. In re Pers. Restraint of Fleming, 142

Wn.2d 853, 865, 16 P.3d 610 (2001).

       Here, Wong was not denied his right to effective assistance of counsel.

Both of the challenged comments were proper and thus did not prejudice Wong.

Wong has not shown that his counsel's alleged deficiencies prejudiced him. Wong

argues that without those arguments, "the jury would have been far more likely to

find reasonable doubt" based on the facts presented at tria1.10 This is insufficient

to show that the outcome of the trial would have been different had Wong's trial

counsel objected to the prosecutor's statements. As discussed above, the

prosecutor's comments challenged in this case were not improper. Therefore,

Wong cannot show that the court would have sustained any objection to them.

Therefore we conclude that Wong has not established either the deficient

performance or prejudice necessary to support his claim of ineffective assistance

of counsel.




'° Br. of Appellant at 16.
                                       - 15-
No. 74231-1-1/16


                                  Appellate Costs

      Wong asks that no costs be awarded on appeal. Appellate costs are

generally awarded to the substantially prevailing party on review. RAP 14.2. But

when a trial court makes a finding of indigency, that finding remains throughout

review "unless the commissioner or clerk determines by a preponderance of the

evidence that the offender's financial circumstances have significantly improved

since the last determination of indigency." RAP 14.2.

       Here, Wong was authorized to proceed as an indigent party on appeal. If

the State has evidence indicating that Wong's financial circumstances have

significantly improved since the trial court's finding, it may file a motion for costs

with the commissioner.

       Affirmed.



                                                                       ALT-
WE CONCUR:




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                                        - 16 -
