                                                                                          COURT OF APPEN. S
                                                                                                Dr/ NICH T1

                                                 Pt ' 110: 08                        2014 JUL - 8
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      STATE OF WASHINGTON
                                                           DIVISION II                By
                                                                                                      tiTY
STATE OF WASHINGTON,                                                                        No. 43262 -5 -II


                                         Respondent,


          v.                                                                               consolidated with




EDWARD JASON CRABLE,


                                         Appellant.


                                                                                            No. 44316 -3 -II
In re Personal Restraint Petition of:


EDWARD JASON CRABLE,


                                        Petitioner.
                                                                                    UNPUBLISHED OPINION




          MELNICK, J. —           Edward Jason Crable appeals his conviction of violating a domestic

violence court order, arguing that the prosecuting attorney committed misconduct during closing

argument       that   violated   his   right   to   a   fair trial. In the personal restraint petition consolidated with


his appeal, Crable challenges the trial court' s calculation of his offender score and argues that he

received ineffective assistance of counsel when his attorney failed to challenge that calculation

during    sentencing.      Because the prosecuting attorney' s comments were not improper, we reject

Crable'   s claim      that he   was    deprived         of a   fair trial   and affirm   his   conviction.   And, because the


trial court properly included Crable' s prior misdemeanor offenses for violating a no contact order

in his offender score, we reject his claims of sentencing error and ineffective assistance of

counsel and      deny    his   personal restraint petition.
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                                                            FACTS


         On October 21, 2011,              Crable pleaded guilty in Pierce County Superior Court to two

counts   of   violating   a no     contact    order.      The resulting sentence included an order prohibiting

contact with Bridget Ann Warren.


         Crable   was released         from   j ail   several   hours   after   his sentencing.    Pierce County Deputy

Sheriff Robert Shaw and Lieutenant Todd Karr watched to see where Crable would go and who

he would contact.


         Crable   walked      to   a   nearby McDonald'          s restaurant    parking lot.     When he got into a car


parked next to Karr' s unmarked patrol vehicle, Karr notified Shaw that he believed Warren was

the driver.     As the    car      drove   by,   Shaw     confirmed      that the driver    was    Warren.   After Shaw


stopped the car, the officers arrested Crable.

         The State charged Crable with one count of violating a domestic violence court order

with the aggravating factor that he committed the offense shortly after being released from
incarceration.        The information also alleged that Crable had two previous convictions for

violating such orders, which increased the crime to a felony.

         Shaw and Karr testified at Crable' s trial about the investigation, stop, and arrest. Deputy

Prosecutor Kara Sanchez then testified that she prosecuted Crable for his two earlier violations of

a no contact order and explained that there was an order prohibiting contact with Warren as a

condition of    his   sentence     for those     violations.     Sanchez admitted that Warren did not want the no


contact order and had written to the trial court asking that the order be amended to prohibit

hostile contact rather than all contact.


         Sanchez explained that the trial court had declined to enter such an order until Crable

 could be evaluated. She then read part of the prior sentencing transcript into the record:
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                        It is very important that you follow the no contact order. I know you don' t
            want      to.     I know        she    doesn' t    want      to.        You have two convictions now for
            violations of a no contact order.                  Even if she wants to have contact with you, you
            can' t have any contact with her. If you are caught with her she doesn' t go to jail,
            you go to jail. It is very important to do this.
                   That is another thing I look at when somebody comes before me and asks
            to have the no contact order modified, has the Court' s previous order been
            followed. Have you had respect for this Court' s order. I don' t want to break up
            families, I don' t want to break up support systems, but I want to be comfortable in
            the decision that I make.


Report      of   Proceedings ( RP) ( Feb. 15, 2012)                 at   166 -67. Sanchez testified that Crable appeared to


understand and              that   she served      him     with a   copy       of   the   no contact order.       Sanchez added that at



the end of the hearing, the court told Crable to call someone to pick him up but reminded him
that   he   could not         have      contact with        Warren.      Sanchez admitted that she never told Warren that


her request for a reduced order had been denied.

            Warren testified for the defense that she was aware of the initial no contact order and

knew that Crable was going to plead guilty to violating it. Warren explained that when Sanchez
told her about his plea bargain, she told Sanchez that she wanted to have the no contact order

removed          or   reduced      to   a " no   hostile   contact" order.      1 RP ( Feb. 15, 2012) at 177.

            Warren added that when she learned that Crable was going to be released from jail, she

drove to the nearby McDonald'                       s and    figured that he         would    find her   there.    Warren testified that


when    she first       saw        Crable in the parking lot, he               was " standoffish."       RP ( Feb. 15, 2012) at 179.


But, when Warren reassured him that she had gotten the no contact order dropped to a no- hostile

 contact order,         Crable got in the            car.    Crable testified that Warren told him the no contact order


 had been changed to a " no hostile contact" order. RP ( Feb. 16, 2012) at 228.




 1                                                                                                          the                         See
     Such    orders     do    not prohibit all contact           but only, hostile           contact with          protected   party.

 State v. Breitung, 173 Wn.2d 393, 403, 267 P. 3d 1012 ( 2011.).
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          The prosecutor began her closing argument to the jury as follows:

                    I told      you   early in opening this isn' t the               spiciest   of   cases.   But in
          Washington, all over America crimes are to be zealously prosecuted when the
          facts   are   there supporting the     law, that the —the violation of law that has occurred.
          And the       plain,    simple   fact, I' m not minimizing this case at all. This case is
          important because when the State of Washington through its superior courts issue
          orders under which they have jurisdiction to parties, including Mr. Crable, those
          orders have meanings. We all have rules that we have to abide by every day. It' s
          part of   the   social contract we enter  living in a society. And whether he likes
                                                         into
          it, whether Ms. Warren likes it, the rules were clear as they applied to Mr. Crable.
                  As of October 21st, 2011 he was under no circumstance to have any
          contact with      Ms. Warren. That'          s what   this   case   is   about.   That— this does in fact

          mean something. Now, as jurors you' ve been given several rules throughout this
          case, what time to be here, strict rules about not discussing the case amongst each
          other, keep —
                                       Your Honor, I' m going to object. This has nothing to
                        Defense Counsel]:
          do with the evidence in this case. Asking the jurors to put themselves in the shoes
          of the defendant.


RP ( Feb. 16, 2012)        at   252 -53. The trial court overruled the objection.


          The prosecutor subsequently addressed the special verdict form asking whether Crable' s

offense occurred upon his recent release from incarceration:

                    Jail is incarceration. And the State submits that' s why this case, while not
          groundbreaking,          earth   shattering, it   means       something.      You can' t walk out of a

          sentencing and that very same day blatantly violate a court order. It' s a slap in the
          face to the judicial system.
                        Defense Counsel]:          Your Honor, I' m going to object to that statement.
          Counsel is trying to         put   her   prestige    behind its     arguments.        You' re supposed to
          just be --


RP ( Feb. 16, 2012) at 260. The trial court sustained the objection. RP 260.

          The jury found Crable guilty as charged and answered " yes" to the special verdict forms

 asking whether he and Warren were members of the same family or household and whether
 Crable    committed        his   offense              after    being    released     from incarceration.      Based on an
                                             shortly


 offender score of 5, the trial court imposed a base sentence of 38 months and an additional 4

 months for the aggravating factor. Crable now challenges his conviction as well as his sentence.
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                                                    ANALYSIS


I.        PROSECUTORIAL MISCONDUCT


          Crable argues in his direct appeal that the closing argument quoted above constituted

prosecutorial misconduct that violated his right to a fair trial.


          The burden is on the defendant to show that the prosecuting attorney' s conduct was

improper. State    v.   Emery, 174      Wn.2d 741, 756, 278 P. 3d 653 ( 2012).      The prosecuting .attorney

has wide latitude in making closing argument to the jury and may draw reasonable inferences

from the    evidence.     State   v.   Gregory,   158 Wn.2d 759, 860, 147 P. 3d 1201 ( 2006). We review


allegedly improper comments in the context of the entire argument, the issues in the case, the
evidence     addressed   in the    argument, and    the instructions   given.   State v. Bryant, 89 Wn. App.

857, 873, 950 P. 2d 1004 ( 1998).             If the statements were improper, and if they elicited an

objection at trial, the defendant must show that the misconduct resulted in prejudice that had a

 substantial likelihood of affecting the verdict. Emery, 174 Wn.2d at 760.

           Crable complains about the prosecutor' s arguments that court orders have meaning, that

 complying with them is part of the social contract, and that violating an order on the date of
                                                                         RP ( Feb. 16, 2012)        260.   Crable
                         slap in the face to the judicial
              was a "                                         system."                         at
 sentencing


 contends that with these arguments, the prosecutor was implying that the jury should send a

 message with its verdict as well as appealing to the jury' s passions and prejudices.

            Send a message" language is prejudicial because it tells the jury to decide the case on an

 improper basis, diverts the jury from its true role of assessing the State' s evidence, and promotes

 a sense of partnership with the jury that is incompatible with its function of deciding the case on
 the   evidence rather   than     emotion.   See State v. Montjoy, 366 N.W.2d 103, 108 -09 ( Minn. 1985)

     prosecutor' s emphasis on accountability potentially diverted jury from its role of deciding
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whether     the State had       met   its burden      of proof);     State v. Neal, 361 N.J. Super. 522, 537 -38, 826

A.2d      723 ( 2003) (      prosecutor' s repeated exhortations to the jury to hold the defendant

accountable       constituted      improper "         send    a   message       to    the    community"        and "    call    to    arms"



comments       that diverted       jurors' attention from the facts and promoted an improper sense of


                with      the   jury);   State   v.   Powell, 62 Wn.            App.        914, 918 -19, 816 P. 2d 86 ( 1991)
partnership


 prosecutor' s argument that acquittal would send a message that children who reported sexual


abuse     would    not     be believed, " thereby            declaring    open        season     on   children,"    was        prejudicial




misconduct).




           We first address the prosecutor' s argument that the court order Crable was charged with

                                                                         live                            the            contract.       Our
violating had meaning             and    that the     rules   people             by    are   part   of         social




Supreme Court found              no misconduct when a prosecutor argued                          that "[   i]t is important that our


instructions    not violate       the    social contract          between   us."       State v. Davis, 141 Wn.2d 798, 872


n. 396,    10 P. 3d 977 ( 2000).         Similarly, the statement that " we' re a nation of laws" was meant to

relay to the jury respect for the rule of law and was not an appeal to passion. State v. Prado, 144
Wn.            227, 251, 254, 181 P. 3d 901 ( 2008).                        Finally,        an   argument      describing       a "   lawful
        App.

society" did not improperly ask the jury to convict in order to send a message about a lawless

 society.    State   v.    Smith, 124 Wn.         App.       417, 430 -31, 102 P. 3d 158 ( 2004),                 affirmed on other




grounds,     159 Wn.2d 778, 154 P. 3d 873 ( 2007). Although a prosecutor should not argue that the


jury should convict to protect the community, asking the jury to act as the conscience of the

 community is        not   improper      unless   the intent       is to inflame the          jury. State v. Finch, 137 Wn.2d

 792, 841 -42, 975 P. 2d 967 ( 1999);                 State v. Ramos, 164 Wn. App. 327, 338 -39, 263 P. 3d 1268

  2012).




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            We do not .view the statements at issue as either improper pleas to the jury to send a

message         or    improper    appeals   to the   jury' s   passions.    We note that defense counsel did not so


interpret them at the time, as he objected only on the basis that the prosecutor was asking the jury

to   put   itself in the defendant' s       shoes.    By asserting that the underlying court order had meaning

and that rules are part of the social contract, the prosecutor was asking the jury to take the case

seriously and to uphold the rule of law. We reject this claim of prosecutorial misconduct.

            The remaining statement at issue is the assertion that Crable' s action in violating a court

                            he                                 slap in the face to the judicial    system."    RP ( Feb. 16,
order on        the   day        was sentenced was " a



2012)      at    260.   Here again, we see no misconduct, even though the trial court sustained defense

counsel' s        objection.      Viewed in context, this argument was addressing the special verdict form

setting forth the aggravating factor that the crime occurred shortly after Crable' s release from
incarceration.              The prosecutor' s argument addressed the rationale for the rapid recidivism

aggravator           and was not an    improper      appeal     to   passion or prejudice.   See State v. Butler, 75 Wn.


App.       47, 54, 876 P. 2d 481 ( 1994) (       defendant' s rapid recidivism justified exceptional sentence by

                                   disregard for the law than         would otherwise    be the   case);   Lugo v. State, 732
demonstrating           greater




S. W. 2d 662, 664 ( Tex. Ct.            App.   1987) (   argument that probation " would be a slap in the face to

law enforcement in this community" did not improperly appeal to community expectations or

 demands          of a certain punishment and was not misconduct).                    Indeed, defense counsel objected


           on   the basis that the    prosecutor was       putting her     prestige   behind her   arguments.     We see no
 only


 misconduct and reject this claim of error.


 II.            OFFENDER SCORE


                Crable argues in his personal restraint petition that the trial court erred by including

 misdemeanor offenses in his offender score and that he received ineffective assistance of counsel
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when   his attorney did              not raise   this   error at     sentencing.         To be entitled to relief, Crable must


show       either   constitutional             error    that    resulted        in    actual    and       substantial     prejudice   or




nonconstitutional error that resulted in a complete miscarriage of justice. In re Pers. Restraint of

Cook, 114 Wn.2d 802, 810 -13, 792 P. 2d 506 ( 1990).

           RCW 9. 94A.525 governs offender score calculations and provides as follows:

                Prior convictions for a repetitive domestic violence offense, as defined in
           RCW 9. 94A.030, shall not be included in the offender score if, since the last date
           of release from confinement or entry of judgment and sentence, the offender had
           spent ten consecutive years in the community without committing any crime that
           subsequently results in a conviction.

RCW 9. 94A.525( 2)( f). A " repetitive domestic                           violence offense"          includes a domestic violence


violation of a no contact order under chapter 10. 99 RCW that is not a felony offense, and a

domestic violence violation of a protection order under chapter 26. 09, 26. 10, 26. 26, or 26. 50 that .

is   not   a   felony    offense.        RCW 9. 94A.030( 41)(             a)( ii),   (iii).   Each adult prior conviction for a


repetitive      domestic            violence     offense       counts     as    one    point    in   an     offender     score.    RCW


9. 94A. 525( 21)(       c).




           Crable was sentenced for twice violating a domestic violence no contact order under

                                     RCW 10. 99. 020                            he                    his               offense.   These
RCW 26. 50. 110               and                              on   the   day         committed             current




misdemeanors were repetitive domestic violence offenses under the definition cited above, and

because Crable had not yet spent 10 years in the community after his release before committing

another crime, they counted as two points toward his offender score.

            Crable' s prior conviction of second degree assault also counted as two points, and the

 fact that he was on community custody at the time of his current offense contributed an

 additional point.            RCW 9. 94A. 525( 19), ( 21)(          a).   His offender score of five was correct.




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         Because Crable does not show that the trial court miscalculated his offender score, we

need not address his claim of ineffective assistance of counsel based on the alleged sentencing

error.   See In    re   Pers. Restraint of Croce, 174 Wn.2d 835, 847, 280 P. 3d 1102 ( 2012) ( to


establish ineffective assistance of counsel, a petitioner must show that his counsel' s performance

was   deficient   and   that the   deficiency   was prejudicial):   Crable does not show error that entitles


him to relief. Accordingly, we deny his personal restraint petition and affirm his conviction and

sentence.




         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.




We concur:




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