      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                                                  r»o          o
                                                                                      C3     wo
                                          )      No. 68937-1-1                               He

                     Respondent,                                                      -n
                                                                                      m     m
                                                                                      CO
                                          )      DIVISION ONE
       v.                                                                            CO

                                                                                  2»
                                                                                  zr.
SYLVIA C. KNOPP,                          )      UNPUBLISHED OPINION
                                                                                  CD


                     Respondent.          )      FILED: February 18. 2014         —
                                                                                            CD —




       Spearman, A.C.J. — Sylvia Knopp was convicted of theft in the first

degree for making repeated withdrawals of cash from the bank account of her

mother, Maria Volz, while she had durable power of attorney for Volz. On appeal,

she claims (1) the evidence was insufficient to support her conviction, (2) the

prosecutor committed misconduct during closing argument through a number of

remarks, and (3) defense counsel was ineffective in failing to object to the

prosecutor's remarks. We conclude the circumstantial evidence was sufficient to

support Knopp's conviction where it showed that she spent the money she                     WASHIN\P EAL
withdrew on gambling. We also conclude that, while the prosecutor misstated the
                                                                                                           ILEO
law regarding Knopp's good-faith claim of title defense, Knopp does not show

that the statements were so ill intentioned and flagrant that an instruction could

not have cured any prejudice. Thus, her prosecutorial misconduct claim is

waived. Finally, Knopp does not establish either deficient performance or

prejudice for her ineffective assistance claim. We affirm.
No. 68937-1-1/2


                                          FACTS

        In 2008 and 2009, Sylvia Knopp worked full-time at a casino, where she

earned $10.71 an hour plus tips. As of October 2009, she had grossed

$21,462.95 in wages and tips for 2009. She frequently had a low or negative

balance in her bank accounts, and from January 2009 to August 2009 was

charged overdraft fees over thirty times. Nonetheless, she visited casinos several

times a month, wagering a handle of hundreds, sometimes thousands, of dollars

during many of her visits.1 At the Point Casino, for example, Knopp lost over
$4,000 from December 2008 through October 2009, wagering more than

$40,000 during that time.

        Since December 2006, Knopp had durable power of attorney with respect

to the health care decisions and finances of her elderly mother, Maria Volz. The

durable power of attorney authorized Knopp to:

        advance all reasonable and desirable expenses in the exercise of
        the responsibilities within this power of attorney and, further, to
        reimburse the attorney-in-fact for reasonable and desirable
        expenses advanced by such attorney-in-fact. The attorney-in-fact is
        further authorized and encouraged, when said attorney-in-fact
        deems it desirable or necessary, to employ others to aid in the
        management of the principal's assets and person including, but not
        be limited to, lawyers, accountants, physicians, nurses, and other
        medical paramedical personnel.

Exhibit (Ex.) 1. The durable power of attorney required Knopp "to account to any

subsequently appointed guardian or personal representative" for Volz. jd.




      1The "handle" is the total amount wagered over the course of the day, including wagering
money previously won. Accordingly, a player's handle can be in excess of the amount of money
the player brought to the casino.
No. 68937-1-1/3


       Volz suffered an injury in December 2008 and was admitted to Providence

Mt. St. Vincent for rehabilitation on December 26. Her health insurance ended its

coverage for her sub-acute care effective January 11, 2009. Her needs, however,

required that she remain in twenty-four hour residential care. When Knopp

advised the staff at Providence that she wanted to move Volz to a different

facility, the staff worked with her to apply for Medicaid benefits on Volz's behalf to

enable her transfer. Knopp initiated a Medicaid application but did not complete

it. Knopp admitted she was aware that if the Medicaid application was accepted,

most of Volz's income would be required to pay for her medical needs. In May

2009, Knopp moved Volz to an assisted living facility, Park Vista. The move was

against medical advice because the services offered by Park Vista were

inadequate to meet Volz's needs.

       During her hospitalization, Volz was not in full possession of her mental

faculties. Henry Judson, a guardian ad litem, visited Volz at Providence in April

2009 and noted that she did not understand why she was there and was unable

to provide her address or any information about her finances. An evaluator who

met with Volz in August 2009 concluded that she suffered from dementia and

lacked the capacity to manage her financial affairs.

       Between December 2008 and October 2009, Knopp withdrew $16,550 in

cash from Volz's checking account. She withdrew another $6,500 via debit card

for, among other things, expenditures at stores, restaurants, and gas stations.

She also obtained $1,900 as cash back when she made deposits of checks into

Volz's accounts. The total amount of Knopp's withdrawals was nearly identical to
No. 68937-1-1/4


the amount of the deposits that Volz received from her pension and social

security.

        During this time, Knopp did not pay the majority of Volz's medical bills,

housing bills, or the property taxes or insurance on Volz's home.2 Instead, her
cash withdrawals closely tracked her gambling activities. For example, on

January 25, 2009, Knopp gambled at the Point Casino, losing only $2.63, but

with a total handle of $1,606.35. That day, she made four cash withdrawals

totaling $300 from Volz's checking account at a Point Casino ATM. She also

withdrew $100 from the Point Casino ATM the day before and the day after that

visit. Similarly, on February 1, 2009, Knopp gambled at the Point Casino, losing

$159.96 with a handle of $548.75. That day, she withdrew $100 from Volz's

account at a Point Casino ATM. Also that day, she withdrew $180 from Volz's

account at a non-casino ATM, and another $900 the next day from a non-casino

ATM. Of the $16,550 in cash Knopp withdrew from Volz's accounts, $6,095 was

withdrawn at casinos, and another $3,564 was withdrawn at non-casino ATMs

within one day of her gambling at a casino.3
        By March 2009, Knopp's use of Volz's money was being investigated by

Adult Protective Services and the Seattle Police Department. In May 2009, a

guardianship petition was filed and Judson was appointed Volz's guardian ad

litem. Judson met with Knopp and requested an accounting, but she did not




       2 Knopp paid approximately $4,000 of Volz's Park Vista bills, but as of October 2009,
Park Vista was still owed over $18,000.

       3 These amounts include ATM fees.
No. 68937-1-1/5


provide one. She also did not provide an accounting to Adult Protective Services,

the police, or the court after it ordered her to do so.

        In June 2009, Hudson obtained a court order prohibiting Knopp from

accessing Volz's accounts. The bank failed to process the order correctly and

Knopp was able to continue withdrawing money. Knopp withdrew several

thousand dollars in cash from Volz's accounts from June 19 through August 3.

On August 4, 2009, a court order was entered permitting Knopp to pay an

insurance premium for Volz, but the order required such payment to be made by

check and forbade Knopp from making cash withdrawals. Nonetheless, Knopp

withdrew over $2,400 from Volz's account from the time the order was entered

until her power of attorney was terminated in October 2009. Moreover, Knopp

directed that Volz's pension and social security checks, which had been

deposited into Volz's accounts via direct deposit, be mailed to Knopp's post office

box instead. This allowed her to access these funds without utilizing Volz's

blocked bank accounts.

        On June 23, 2011, the State charged Knopp with one count of theft in the

first degree, alleging two aggravating factors: (1) the victim was particularly

vulnerable and (2) Knopp used a position of trust to facilitate commission of the

offense.4 At trial, Knopp testified that she used the cash she withdrew from Volz's

accounts to, among other things, pay Volz's bills, give Volz spending money, and

pay herself for services rendered for Volz. She claimed she withdrew cash to

obtain money orders to pay Volz's bills because it was easier that way. Knopp


        4 The State later amended the information to clarify that the theft was based on a series
of transactions.

                                               5
No. 68937-1-1/6


argued the State failed to prove she did not spend the money on Volz. She

requested, and the court gave, jury instructions on the defense of good-faith

claim of title.

        The jury found Knopp guilty and also found that both aggravating factors

were present. The sentencing court imposed a standard-range sentence. Knopp

appeals.

                                      DISCUSSION


                              Sufficiency of the Evidence

        Evidence is sufficient to support a conviction if, viewing the evidence in the

light most favorable to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. State v. Hosier, 157

Wn.2d 1,8, 133 P.3d 936 (2006). A claim of insufficiency of the evidence admits

the truth of the State's evidence and all inferences that can reasonably be drawn

from the evidence. State v. Salinas. 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

Circumstantial evidence is no less reliable than direct evidence. State v.

Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980) (citing State v. Gosbv, 85

Wn.2d 758, 539 P.2d 680 (1975)).

        To convict Knopp of theft in the first degree as charged in this case, the

jury instructions required the State to prove beyond a reasonable doubt that she
exerted unauthorized control over more than $5,000 of Volz's money with the

intent to deprive Volz of it.5 To "exert unauthorized control" means to take the
property of another or, when one already has control over the property through


        5Thejury instructions were consistent with RCW 9A.56.020(1 )(a) and RCW
9A.56.030(1)(a).
                                             6
No. 68937-1-1/7


power of attorney, to secrete, withhold, or appropriate the property to one's own

use or to the use ofany person other than the true owner.6 Clerk's Papers (CP)
at 53.

         Knopp first contends the evidence failed to show she appropriated the

money she withdrew from Volz's accounts to her own use rather than using it for

Volz's benefit because there is no evidence of where the money went. We

disagree. There was no direct evidence to show how Knopp spent the cash.

However, substantial circumstantial evidence supports the State's theory that she

spent the cash on gambling, rather than for Volz's care. The evidence showed

that Knopp withdrew over $16,000 in cash from Volz's accounts at a time when

Volz was incapable of overseeing her finances. The evidence showed that,

during that period, Knopp was struggling financially but was gambling frequently

at the same casinos where she withdrew much of the cash. The evidence

showed that Knopp, as Volz's attorney-in-fact, did not pay the majority of Volz's

medical bills, housing bills, or her property taxes and insurance. Moreover,

Knopp's testimony did not explain why she made multiple withdrawals from

casino ATMs on the same day, even though an ATM fee was charged with each

withdrawal, which is consistent with the State's theory that she withdrew the cash

to compulsively gamble. Ex. 7, 32, 35. In sum, the evidence permitted a rational
trier of fact to infer that Knopp exerted unauthorized control over at least $5,000

of Volz's money.




         6The definition of "unauthorized control" in the jury instructions was consistent with RCW
9A.56.010(22).
No. 68937-1-1/8


       Knopp cites State v. Thompson, 153 Wn. App. 325, 223 P.3d 1165 (2009)

and State v. Crowder, 103 Wn. App. 20, 11 P.3d 828 (2000), suggesting that the

State must show precisely how she spent the cash. But these cases do not

support this proposition. Rather, as the State contends, they simply illustrate

circumstances in which there is sufficient evidence of theft.7 In neither case did

this court hold that it was necessary for the State to show how exactly a

defendant spent money appropriated from the victim to prove that the money was

appropriated to the defendant's own use.

       Knopp next contends that even if her use of the money was not actually

authorized, the State failed to disprove her good-faith claim of title defense. It is a

defense to a charge of theft that the property was taken "openly and avowedly

under a claim of title made in good faith, even though the claim be untenable."

RCW 9A.56.020(2)(a). The defense negates the essential element of intent to

deprive, so the State bears the burden of proving the absence of the defense

beyond a reasonable doubt. State v. Aqer. 128 Wn.2d 85, 92, 904 P.2d 715

(1995); State v. Hicks, 102 Wn.2d 182, 187, 683 P.2d 186 (1984).

        Knopp contends the State provided no evidence the money was spent on

anything other than expenses she believed to be reasonable and desirable to

effectuate Volz's care under the durable power of attorney. We conclude the


       7See Thompson, 153 Wn. App. at 329-36 (evidence sufficient to support theft conviction
where defendant knew victim suffered from dementia and lacked capacity to sign power of
attorney permitting gifts of money from victim to defendant; defendant nonetheless obtained
victim's signature; and defendant gifted himself money from victim's bank account and from sale
of victim's home, using part of moneyto pay offloans and buy a boat); Crowder, 103 Wn. App. at
23-29 (evidence sufficient to support theft conviction where defendant with power of attorney
transferred money from victim's account to her own but was not authorized to make gifts of
victim's property; and where defendant, after power of attorney was revoked, persuaded victim to
quitclaim property to her in violation of court order).
                                               8
No. 68937-1-1/9


State disproved the defense beyond a reasonable doubt. The power of attorney

authorized Knopp to reimburse herself for "reasonable and desirable expenses"

advanced by Knopp. But, as we have explained, the State presented

circumstantial evidence that Knopp spent the cash she withdrew on gambling

rather than on Volz's care. The State's evidence showed, furthermore, that

Knopp's testimony regarding why she paid herself the cash was not credible and

that her claim of title to the money was not made in good faith. Knopp testified,

for example, that she paid herself for work done for Volz, such as shampooing

rugs, pressure washing the roof, doing yard work, and performing maintenance

at Volz's home. But the accounting she provided at trial did not reflect such work,

and the guardian ad litem reported that in September 2009, Volz's home was

dilapidated and disheveled, the carpet reeked of pet urine and feces, and the
yard was in disrepair. Moreover, of the dozen or so receipts that Knopp provided
to show how she spent cash for Volz, some were incomplete, illegible, or not

clearly related to expenses for Volz. But even assuming all of the receipts were

for expenses for Volz, they totaled approximately $3,200, leaving approximately
$12,000 of unexplained cash withdrawals. Also, Knopp's assertion that she used

money to buy money orders to pay Volz's bills because doing so was easier
lacked credibility, where there was evidence that she could have used Volz's
debit card or checkbook and evidence that Knopp herself used debit cards and

checks to make payments from her own account. Knopp testified regarding how

she used the money and why she felt she was entitled to the money, and the jury

was entitled to disbelieve her testimony. We do not review credibility
No. 68937-1-1/10


determinations on appeal. State v. Camarillo. 115 Wn.2d 60, 71, 794 P.2d 850

(1990). Moreover, Knopp's withdrawals from Volz's account in contravention of a

court order belied her claim that she was acting in good faith.

                              Prosecutorial Misconduct

       In a prosecutorial misconduct claim, the defendant bears the burden of

proving that the prosecutor's conduct was both improper and prejudicial. State v.

Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012) (citing State v. Thoraerson.

172 Wn.2d 438, 442, 258 P.3d 43 (2011)). Once a defendant establishes that a

prosecutor's statements are improper, this court determines whether the

defendant was prejudiced under one of two standards of review. fcL at 760. If the

defendant objected at trial, he must show that the misconduct resulted in

prejudice that had a substantial likelihood of affecting the jury's verdict. \±
(citation omitted). If the defendant did not object, he is deemed to have waived
any error, unless the prosecutor's misconduct was so flagrant and ill intentioned

that an instruction could not have cured the resulting prejudice. \± at 760-

61 (citing State v. Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)). In that
case, the defendant must show that (1) no curative instruction would have

obviated any prejudicial effect on the jury and (2) the misconduct resulted in

prejudice that had a substantial likelihood of affecting the verdict. Id, (citing

Thorqerson, 172 Wn.2d at 445)).

       A prosecutor's argument to the jury must be confined to the law stated in

the jury instructions. State v. Walker, 164 Wn. App. 724, 736, 265 P.3d 191
(2011) rev. denied, 177 Wn.2d 1026, 309 P.3d 504 (2013)). A prosecutor's


                                           10
No. 68937-1-1/11


misstatement of the law can constitute improper argument. See Emery, 174

Wn.2d at 759-60 (arguments shifting burden of proof to defendant are

misconduct). Arguments alleged to be improper should be reviewed in context of

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

argument, and the court's jury instructions. State v. Russell, 125 Wn.2d 24, 85-

86, 882 P.2d 747 (1994).

       Knopp claims the prosecutor committed prosecutorial misconduct during

closing argument by misstating the law pertaining to her good-faith claim of title

defense. First, she points to the emphasized statements within the following

argument:

       And the defendant, Sylvia Knopp, agreed to [handle Volz's health
       care and financial decisions] as she got older and incapacitated.
       She agreed to assume that weighty responsibility of making the
       decisions for another person's life.
               It's not an insignificant thing to agree to do something like
       that, to take care of another person who's unable to care for
       themselves is an onerous responsibility. And it's one the defendant
       didn't have to do. But she decided to do that and she agreed to do
       that.
               And because caring for another person is such a serious
       matter, we as a society decided to make it a crime not to fulfill that
       duty when we have accepted that duty. So if we have a child, and
       we neglect that child, it's criminal. If we adopt a child and we
       decide we really don't want the child after all, and we abandon that
       child, it's criminal.
               And if we assume a fiduciary duty to take care of someone
       who's vulnerable and can't make decisions for themselves and
       abandon that duty, we as a society have decided that's criminal.
       And what we know in this case is that the defendant stole money
       from her mother, Maria Volz.
               We know that beginning in December of 2008 and
       continuing on throughout October of 2009, she was the power of
       attorney for her mother. And she used that power of attorney again
       and again and again to take cash out and to make purchases that
       were for herself and not for her mother's benefit.



                                         11
No. 68937-1-1/12


               She chose again and again not to take care of her mother,
       but to fulfill her greed.

(Emphasis added.) RP at 1014-16. Knopp also points to the prosecutor's later

statement, "With each cash withdrawal that she made, each ATM visit that she

made, the defendant chose to fulfill her greed, rather than to fulfill her fiduciary

duty towards her mother. And that is not just immoral. It's criminal." RP at 1047.

       We conclude that, in the context of the prosecutor's larger argument, the

statements did not misstate the law. The State correctly concedes that the failure

to fulfill a fiduciary does not necessarily rise to the level of a crime.8 And the
statements emphasized by Knopp, in isolation, were incorrect to the extent they

suggested the jury could convict if itfound that Knopp merely breached a

fiduciary duty to Volz. But in the context of the surrounding statements, the
statements were not improper. The prosecutor described the burden imposed by

a fiduciary responsibility, noted that Knopp had accepted that burden, and

accused her of stealing money from Volz. The argument as a whole emphasized

that it was Knopp's actions of stealing money and using it for herself, not merely

a failure to fulfill a fiduciary duty that made her guilty of theft.

        Knopp next points to the emphasized statements in the following

argument by the prosecutor:

        So starting on December 30th, the withdrawals for cash at the
        casinos begins.


        8 Conviction for theft requires proof of intent to deprive. RCW 9A.56.020. But a person
can violate a fiduciary duty without criminal intent. See 29 David K. DeWolf, WASHINGTON
PRACTICE: ELEMENTS OF AN ACTION§ 12:1, at 349-50 (2013) (essential elements to breach
of fiduciary duty cause of action are (1) the existence of a fiduciary relationship giving rise to a
duty ofcare on the part of the defendant to the plaintiff; (2) an act or omission by the fiduciary in
breach of the standard of care; (3) the plaintiff sustained damages; and (4) the damages were
proximately caused bythe fiduciary's breach of the standard of care).
                                                 12
No. 68937-1-1/13


             And Ijust want to stop for a minute and talk about this casino
      thing. You have heard exhaustively about casino withdrawals, ]t
      doesn't matter where the defendant was spending this money. It
      doesn't matter if she was gambling her mother's money away, or
      spending it on her hobbies, whatever they might have been. What
      matters is she was withdrawing cash from her mother's account
      without authority. And the fact that we can show these withdrawals
      were made at casinos is circumstantial evidence that she's not
      spending that money on her mother's behalf. But it really isn't the
      point here. The point is, the defendant was withdrawing cash
      repeatedly and using it not for her mother's benefit, but for herself.

(Emphasis added.) RP at 1018.

      The prosecutor's remarks as a whole did not misstate the law. While

Knopp is correctthat she did not commit theft if she used the money for Volz's

benefit, in context, the statements were part of the State's proper argument that it

did not need to prove how Knopp spent Volz's money (for example, on gambling
or on her other hobbies), as long as it proved she withdrew the money without

authority and did not spend it on Volz's behalf.

       Knopp also contends the prosecutor committed misconduct through the

emphasized statements in the argument below:

             And here's the evidence that we have that the defendant
       secreted this money and appropriated itfor her own use. First of all,
       again, we know she withdrew over $15,000 in cash from Maria's
       accounts.
              She has claimed to you on the stand that this money was
       owed to her. She told you she's paid herself for visiting her mother.
       She told you she paid herself for being interviewed by Adult
       Protective Services and the police regarding her exploitation of her
       mother. She told you that she paid herself to fight the guardianship
       that was filed because she had financially exploited her mother.
       She told you she paid herself for parking, gas, time in court, all for
       fighting this guardianship.
              And that, she told you, is where some of the cash from those
       withdrawals went to. So it's up to vou. ladies and gentlemen, to
       decide whether that's a legitimate explanation for this money. Is the


                                         13
No. 68937-1-1/14


      defendant entitled to pay herself before she pays her money, Tsicl
      or before she pays for her mother's care?

              And maybe, mavbe if there's any money left over after you
      paid all of her necessary expenses, vou could pay yourself for
      items or things that vou could hire out for. That's what the
      defendant testified she had authority to do. That's what she said the
      attorney Karl Flaccus said she could do. is pay herself for things
      she could hire out for.
            So if vou had money left over, and vou needed - your
      mother's lawn needed to be mowed, and vou wanted to mow it
      yourself, arguably vou could pay yourself to mow your mother's
      lawn if vou were inclined to do that. But certainly, you could not pay
      yourself for the things that the defendant paid herself for. No
      reasonable person would pay themselves to visit their mother. No
      reasonable person would pay themselves to be interviewed by APS
      and Seattle Police about their own exploitation of their mother. No
       reasonable person would pay themselves to fight the guardianship
      that was filed as a result of their exploitation of their mother. It
       simply is not reasonable. And it simply isn't acceptable.

(Emphasis added.) RP at 1029-30; 1044-45.

       Knopp argues that, even if her priority of Volz's expenses was not

"reasonable or desirable" under the power of attorney, she did not necessarily

commit theft. She notes that Judson, an elder law attorney, testified that power of

attorney laws do not provide a clear rule for prioritizing some of the principal's

expenses over others.

       We again conclude that, in the context of the prosecutor's larger

argument, the statements were not improper. The statements were part ofthe
prosecutor's argument discussing the element of theft that Knopp appropriated
Volz's funds for her own use, i.e., whether the State met its burden of proof to

show that Knopp exerted unauthorized control over Volz's money. The

prosecutor's argument was that some of Knopp's assertions regarding how she
spent the money—to pay herself for visiting her mother, for time and expenses in

                                          14
No. 68937-1-1/15


fighting the guardianship, etc.—were not reasonable or credible, that those

activities were not authorized under the durable power of attorney, and thus that

she exercised unauthorized control over Volz's money. As a whole, the argument

did not misstate the law.

       Finally, Knopp contends the prosecutor misstated the law regarding the

good-faith claim of title defense when she argued as follows:

              This [good-faith claim of title defense] is often used when
       people take a car, because they believe it belongs to them. When
       they think property is actually theirs, and when they in good faith
       take that property thinking that it's theirs.
               In this case, the defendant is going to argue to you that this
       is basically a good faith claim of entitlement. Not that it's a good
       faith claim of title. In other words, the truth is that the defendant did
       not ever believe that this was her money. She may have believed
       she was entitled to it because of the work she allegedly did for her
       mom, but she never believed this money was actually hers to start
       with.
               She testified she knew it was her mother's income. She
       knew it was her mom's Social Security and her pension. So I would
       argue to you that this instruction should not apply here. In other
       words, the defendant had no good faith basis to believe this money
       was actually hers.
              And I would urge you not to confuse good faith claim of title
       with good faith claim of entitlement. In other words, it's not okay to
       do something for someone and decide that you're owed money and
       then steal that money from them, because you think they are
       supposed to pay you for something. That's not how we work in this
       society. If you have a claim, and you are believed you are owed
       money, and that person is not going to pay you, then you need to
       deal with that in some other way than stealing it from that person or
       taking it from that person. So I would argue to you that this is not a
       case of good faith claim of title.
             The defendant never really believed this money was hers to
       start with. She does believe it's hers, that she's entitled to it
       apparently. But that's very different. She knows full well this is her
       mother's money. And the dispute in her mind is whether or not she
       is entitled to [Volz's money] before the nursing homes or her
       mother's other bills, her other financial interests are entitled to that
       money.



                                           15
No. 68937-1-1/16


              The defendant knew the money was [Volz's], as I said. She
      knew her mother was getting these checks into her mother's bank
      account. And she also knew it was her duty to pay her mother's
      nursing home bills first and foremost as power of attorney. She
      testified to that. She told you she knew what a fiduciary duty was.
      And she knew she had a duty to pay her mother's nursing home
      bills. And she knew her mother would be evicted for nonpayment of
      those bills. And you heard Henry Judson testify about the duty of a
       power of attorney. And it's obvious to all of us, it's your duty as a
       power of attorney to take care of this person who can no longer
       take care of themselves. And of course, the most fundamental thing
       you need to take care of is their health care and their physical care
       if they are unable to care for themselves.
                So it goes without saying the defendant knew it was in her
       duty. It was her duty to act in her mother's best interest and to pay
       her nursing home bills before she paid herself. So even if she
       believed this money was actually hers, and not her mother's, she
       still did not do the right thing with that money. So it's not a
       legitimate defense.

RP at 1036-38.

       We agree with Knopp that this argument misstated the law regarding the

defense as it applied to this case. It is a defense to a charge of theft that property

was taken "openly and avowedly under a claim of title made in good faith, even

though the claim be untenable." RCW 9A.56.020(2)(a). The defense "negates the

element of intent to steal by providing that a defendant cannot be guilty of theft if

the defendant takes property from another 'under the good faith belief that he is

the owner, or entitled to possession, of the property.'" Ager, 128 Wn.2d at 92

(quoting Hicks. 102 Wn.2d at 184). Here, Knopp asserted title to the money

under the durable power of attorney, which authorized her to "advance all

reasonable and desirable expenses in the exercise of the responsibilities within

this power of attorney and, further, to reimburse the attorney-in-fact for

reasonable and desirable expenses advanced by such attorney-in-fact." Ex. 1.


                                          16
No. 68937-1-1/17


        On appeal, the State concedes that Knopp was entitled to present the

good-faith claim of title defense based on the durable power of attorney but

argues, inconsistently, that the defense is available only when a defendant is

attempting to recover specific, tangible property and is not available unless a

defendant believes property is his or hers to begin with. We disagree. RCW

9A.56.020(2)(a) does not contain either requirement. Nor do the cases cited by

the State support the proposition that the defense was not available in this case.9
Knopp was not using the type of self-help used in those cases. Rather, her

defense was that she was entitled under the power of attorney to pay herself,

and the power of attorney did permit her to reimburse herself for reasonable and

desirable expenses. The prosecutor's remarks incorrectly told the jury that Knopp

could not use the defense unless she believed the money was hers to begin with.

        Nonetheless, we conclude that Knopp waived any claim of prosecutorial

misconduct by failing to object. The prosecutor's statements were not flagrant

and ill intentioned. As the State points out, the law regarding the applicability of

the good-faith claim of title defense to the circumstances in this case is not


         9See State v. Self. 42 Wn. App. 654, 713 P.2d 142 (1986) (no entitlementto jury
instruction on good-faith claim of title defense where defendant, on behalfof victim's employee,
robbed victim of cash, wallet, car keys, and credit cards, claiming employee was owed payment
by victim; defense notavailable in cases where force is used to collect debt and where defendant
has no claim of ownership in specific property acquired); State v. Brown, 36 Wn. App. 549, 676
P.2d 525 (1984) (no entitlement to instruction on good-faith claim of title defense in case of first-
degree burglary where defendants invaded victim's home and took stereo to secure return of
purse and gun allegedly taken by victim from one defendantearlierthat day; defendants did not
claim, and there was no evidence to show stereo belonged to defendants); State v. Larsen, 23
Wn. App. 218, 596 P.2d 1089 (1979) (in case where defendant whose wife had performed sex
acts for moneythreatened client with firearm and forced clientto write new check after he
stopped payment on original check, trial courtdid not err in instructing jury that a creditor's intent
to collecta debt from his debtor by use or threatened use of immediateforce, violenceor fear of
injury is not a defense to robbery; good-faith claim of title defense is not allowed where a
defendant uses force to collect a debt with no claim of ownership in the specific property
acquired).
                                                  17
No. 68937-1-1/18


entirely clear; there is little to no case law regarding the defense as it applies to

power of attorney cases. We also conclude that any prejudice could have been

cured by an instruction. Additional instructions from the trial court could have

informed the jury that the good-faith claim of title defense did not require that

Knopp believed the money was hers to begin with.

                          Ineffective Assistance of Counsel

       We review claims of ineffective assistance of counsel de novo. State v.

Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). A defendant claiming

ineffective assistance bears the burden of demonstrating that (1) counsel's

performance was so deficient that he was not functioning as the "counsel"

guaranteed by the Sixth Amendment and (2) the defendant was prejudiced by
counsel's deficient performance, such that the defendant was deprived of a fair

trial. State v. Cienfuegos, 144 Wn.2d 222, 226-27, 25 P.3d 1011 (2001) (citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984)). Counsel is deficient if his "representation fell below an objective

standard of reasonableness based on consideration of all of the circumstances."

State v. Thomas. 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Scrutiny of

counsel's performance is highly deferential, and courts presume that counsel's
representation was effective. jcL Prejudice results when it is reasonably probable
that, "butfor counsel's unprofessional errors, the result of the proceeding would

have been different." Id (quoting Strickland. 466 U.S. at 694).

        Knopp contends that, even if her prosecutorial misconduct claim was not

preserved for appeal, she was denied her constitutional right to effective


                                           18
No. 68937-1-1/19


assistance of counsel because her attorney failed to object to the prosecutor's

various remarks. We conclude that Knopp does not demonstrate deficient

performance or prejudice. First, as we have explained, the law regarding the

applicability of the good-faith claim of title defense to these circumstances is not

entirely clear. Thus, Knopp cannot show that defense counsel should have

known that the prosecutor incorrectly stated the law. Second, Knopp fails to show

prejudice. Where the circumstantial evidence was overwhelming that Knopp

spent at least $5,000 of the cash she withdrew for gambling, she does not show

with reasonable probability that the result of the trial would have been different

had defense counsel objected to the prosecutor's remarks.

       Affirmed.




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WE CONCUR:




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