           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

  THE STATE OF WASHINGTON,                         )          No. 77662-2-I

                 Respondent,                       )          DIVISION ONE

                 v.                                )          UNPUBLISHED OPINION
                                                   )
  CHRISTOPHER RONNELL AUSLER,                      )
                 Appellant.
 _____________________________________             )          FILED: April 22, 2019

       HAZELRIGG-HERNANDEZ, J.       —   In order to prevail on a claim of prosecutorial

misconduct, a defendant must show that the conduct was improper and that it resulted in

prejudice that had a substantial likelihood of affecting the jury’s verdict.        Finding no

prejudice likely to affect the jury’s verdict, we affirm the judgment of the trial court.

                                            FACTS

       Christopher R. Ausler opened multiple accounts with Pitney Bowes, a company

that manages postage meters for the United States Postal Service.                Pitney Bowes

generally offers a line of credit along with the postage meters for customers to print

postage. Customers who no longer need printed postage are able to take it to the post

office for a partial refund. Ausler printed postage from his various accounts and received

refunds from post offices throughout King County. He did not repay Pitney Bowes.

       The postmaster at the Seahurst-Burien post office, Linda Burton, became

suspicious when Ausler came in for a refund because the postage was for large, unusual
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amounts. Ausler was also recognized by post office staff as having previously conducted

similar transactions at that location.         Burton notified Ausler’s employer regarding the

unusual postage refund request because information on the refund form referenced the

company’s name and location in Kent. After an investigation, Carol Hayes, the executive

director for Ausler’s employer, met with Ausler and terminated his employment. Hayes

testified regarding her conversation with Ausler.

         Ausler was also investigated by United States Postal Inspector John Wiegand.

Wiegand testified that he interviewed Ausler twice. He offered to show several postal

refund forms, postal money order receipts, and spoiled postage to Ausler at the second

interview. Ausler declined to look at the documents.

         Ausler was charged with one count of first degree theft in King County Superior

Court, with a major economic offense aggravator. In its closing statement, the prosecutor

argued that “[y]ou have to have a reason to have reasonable doubt.           .   .   you have to be

able to articulate what it is.” He argued that in his meeting with Hayes regarding her

investigation, Ausler didn’t say   “.   .   .what the heck? I don’t know anything about that. I

never ordered any.” Regarding the documents Wiegand brought to show Ausler, the

prosecutor asked the jury to imagine themselves in Ausler’s position and consider if they

would want to see them.

         Ausler objected to those arguments at trial, and contends on appeal that the

misconduct in those arguments, either individually or cumulatively, entitles him to a new

trial.




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                                       DISCUSSION

       Misconduct in Closing Argument

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

prosecutor made improper statements and that those statements caused prejudice.’

State v. Lindsay, 180 Wn.2d 423, 440, 326 P.3d 125 (2014). “If the defendant objected

at trial, the defendant must show that the prosecutor’s misconduct resulted in prejudice

that had a substantial likelihood of affecting the jury’s verdict.” State v. Emery, 174 Wn.2d

741, 760, 278 P.3d 653 (2012) (citing State v. Anderson, 153 Wn. App. 417, 427, 220

P.3d 1273 (2009)). If the defendant fails to object or request a curative instruction, the

misconduct is waived unless an instruction could not have cured the resulting prejudice.

Lindsay, 180 Wn.2d at 430 (citing State v. Stenson, 132 Wn.2d 688, 71 9, 940 P.2d 1239

(1997)).

       Ausler argues that the prosecutor’s remarks during closing argument constitute

misconduct and denied him a fair trial. The State argues that Ausler has waived review

of this issue because he did not request a curative instruction or a mistrial. While some

Supreme Court opinions use the word “waive,” it is clear that rather than precluding

review, a failure to request those remedies changes the standard the court uses to

evaluate prejudice. See, e.ci., Emery, 174 Wn.2d at 762 (analyzing misconduct despite

defendant’s failure to even object).

       Here, Ausler’s challenge fails regardless of the prejudice standard we apply.

       A.         Reasonable Doubt

       “Arguments by the prosecution that shift or misstate the State’s burden to prove

the defendant’s guilt beyond a reasonable doubt constitute misconduct.” Lindsay, 180


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Wn.2d at 434 (citing State v. Gregory, 158 Wn.2d 759, 859-60, 147 P.3d 1201 (2006).

Arguments requiring the jury to articulate its reasonable doubt are improper because they

subtly shift the burden to the defense. Emery, 174 Wn.2d at 759-60.

       Here, Ausler argues that two statements made by the State in closing argument

constitute reversible misconduct. We hold that the first statement, “[y]ou have to have a

reason to have reasonable doubt,” is a rough restatement of the pattern jury instruction

definition of reasonable doubt, and therefore not an improper argument. See WPIC 4.01

(“A reasonable doubt is one for which a reason exists.”). The State concedes that the

prosecutor’s second argument requiring the jury to articulate a reason for reasonable

doubt is improper.     It argues instead that Ausler’s objection to that argument was

sustained and Ausler failed to request any additional remedy. The State argues that

Ausler was not prejudiced because the court sustained his objection and properly

instructed the jury on reasonable doubt. We agree.

       The Supreme Court has considered very similar misconduct and held that any

resulting prejudice was curable with a proper instruction. See Emery, 174 Wn.2d at 763-

64 (argument requiring jury to fill-in-the-blank to have reasonable doubt was curable with

proper instruction). Here, Ausler timely objected and his objection was sustained by the

trial court. The prosecutor did not restate the improper argument or skirt the court’s ruling.

The jury was properly instructed on reasonable doubt, and it is unlikely that the argument

affected the jury’s verdict in light of the proper instructions and sustained objection. We

do not find the requisite prejudice to remand this case for retrial.




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       B.         Right to Silence

       Ausler argues that the State improperly shifted the burden of proof and commented

on his silence when the prosecutor commented on the statements Ausler did and did not

make in an interview with Carol Hayes, Ausler’s former employer. However, the Fifth

Amendment does not normally apply to interactions with non-state actors. Colorado v.

Connelly, 479 U.S. 157, 165, 107 5. Ct. 515, 93 L. Ed. 2d 473 (1986). Article I, §9 is

interpreted equivalently with the Fifth Amendment. State v. Easter, 130 Wn.2d 228, 235,

922 P.2d 1285 (1996) (citing State v. Earls, 116 Wn.2d 364, 375-76, 805 P.2d 211

(1991)). Because Carol Hayes was not acting in any capacity for the state, Ausler’s

silence in her interview was not protected by the Fifth Amendment or Article I, §9.

       Additionally, when a defendant does not remain silent, “the [S]tate may comment

on what he does not say.” State v. Clark, 143 Wn.2d 731, 765, 24 P.3d 1006 (2001)

(emphasis in original) (citing State v. Young, 89 Wn.2d 613, 621, 574 P.2d 1171 (1978).

Ausler actively participated in the interview with Carol Hayes. The prosecutor’s argument

asking the jury to consider what Ausler did and did not say in that interview with a non-

state actor was proper.

       C.         Passion and Prejudice

       Next, Ausler argues that the State improperly appealed to the jury’s passion and

prejudice by asking the jury to imagine themselves in Ausler’s position when he was

approached by postal investigators at his work. His timely objection was sustained by the

trial court based on the “golden rule.” In civil cases, the so-called “golden rule” holds that

arguments “urging the jurors to place themselves in the position of one of the parties to

the litigation, or to grant a party the recovery they would wish themselves if they were in


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the same position” are improper. Adkins v. Alum. Co. of Am., 110 Wn.2d 128, 139, 750

P.2d 1257 (1988) (citing J.Stein, Closing Argument §60, at 159 (1985). The argument is

“improper because it encourages the jury to depart from neutrality and to decide the case

on the basis of personal interest and bias rather than on the evidence.” Adkins, 110 Wn.2d

at 139 (quoting Roias v. Richardson, 703 F.2d 186, 191      (St1~   Cir. 1983)). The Supreme

Court has not adopted the “golden rule” for criminal cases, and instead suggests that

these arguments are more appropriately considered as appeals to the sympathy or

passions of the jury. State v. Borboa, 157 Wn.2d 108, 124, n. 5, 135 P.3d 469 (2006).

       Here, it is not clear that the prosecutor’s argument was an appeal to the jury’s

personal interest, bias, sympathy, or passions. We disapprove of the way the argument

is framed because it asks the jurors to depart from an objective evaluation of the evidence,

but this argument is more innocuous than inflammatory. It asks the jury only to evaluate

Ausler’s reaction to the postal investigators and the documents they offered to show him.

It was fair for the prosecutor to comment on Ausler’s reactions during the interview with

the postal investigators. The argument does not ask the jurors to decide based on their

own personal interests, attribute any malice to Ausler, or ask the jury to step into the

shoes of a victim. Because the argument was on a proper subject and did not invite the

jury to apply its passions or prejudices, we hold that the argument was not improper, even

if it was unfortunately framed.

       D.         Cumulative Error

       Ausler finally argues cumulative error based on the various assertions of

prosecutorial misconduct. While we do find error as to Ausler’s first claim, we do not as

to the second and third issues. As such, we do not find cumulative error.


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       Affirmed.




WE CONCUR:
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