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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON^                         ^
                                      DIVISION ONE                               5    S%
STATE OF WASHINGTON,                             No. 73121-1-1                   _    *;2n
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                        Respondent,                                              O    ow
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                v.                               UNPUBLISHED OPINION

KENNETH LYNN PROCK,

                        Appellant.               FILED: May 2, 2016

       Schindler, J. — Kenneth Lynn Prock seeks reversal of the jury conviction for

residential burglary in violation of RCW 9A.52.025. Prock contends prosecutorial

misconduct during closing argument denied him of a fair trial. In the alternative, Prock

argues his attorney provided ineffective assistance of counsel by failing to object to the

prosecutor's argument. We affirm.

                                          FACTS


       In January 2014, Casey Robinett and his girlfriend Monica Certain rented a

house located at 6103 Grove Street in Marysville. Robinett and Certain would drive to

work together and return home around 6:00 or 7:00 p.m.

       When Robinett and Certain returned home from work on May 8, 2014, they saw

an older gold-colored sedan they did not recognize parked in their driveway. Robinett
No. 73121-1-1/2


and Certain parked in their driveway next to the gold car. Robinett noticed the back

door to the house was open.

      Robinett told Certain to call the police. Robinett grabbed a hammer and entered

the house through the back door. Robinett shouted, "Who the hell is here?" Kenneth

Prock walked out of the couple's bedroom and said, "I'm here." When Robinett asked

Prock why he was in the house, Prock said that the landlord sent him to "clear out the

house." Robinett replied, "Bullshit. I know the landlord." As he left house, Prock said

he "was sent here to do it" by his "friend from Arlington." Prock then got in his car and

drove away.

      At 7:47 p.m., Marysville Police Department officers responded to the reported

burglary in process. The 911 operator told Officer Charles Smith that the reported

suspect was driving a tan Saturn car. On his way to the house, Officer Smith saw a tan

Saturn traveling in the opposite direction. Officer Smith turned around and followed the

car. As Officer Smith was turning around, the Saturn made an "immediate right turn"

onto a "side residential street." Officer Smith stopped the Saturn a short distance away.

Officer Smith confirmed the car's license plate number matched the license number of

the vehicle involved in the reported burglary. Officers then arrested Prock and advised

him of his Miranda1 rights.

        Prock told Officer Smith that an individual named "Steve" gave him "permission

to be in the house." But Prock said he did not know Steve's last name, phone number,

or address. According to Prock, Steve told him "someone had moved out of the house"
and Prock could "take what he wanted." Prock stated he was in the house for about

three minutes and did not have time to take anything.

        Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 73121-1-1/3


       The State charged Prock with residential burglary in violation of RCW 9A.52.025.

At trial, Robinett and Certain identified Prock as the individual that had been inside their

house. Robinett and Certain testified that Prock did not have permission to enter the

house and did not have permission to take or "go through" any items from the house.

Robinett testified nothing was missing from the home but several items were "out of

order." Robinett stated Certain's jewelry box in the bathroom had been moved and

opened, and the door of the bedroom closet was open and the clothes were "all pushed

together" and "not normal." Robinett testified the couple "always made a point to lock

the doors behind us" because "I've been broken into before."

       Prock testified that he was not "there to clean out anything." Prock testified he

was "looking to rent a place in Marysville." Prock said he had met a man named "Steve"

at a bar earlier that day and Steve told him the house was "abandoned and that it

needed to be cleaned up." Prock said he had previously driven by the house and

wondered if it was abandoned. According to Prock, he "went to go check out this place"

to see if the property was available to rent.

       Prock testified that he arrived at the house about 4:45 p.m. and after looking into

the windows, "it did look like ... the place was abandoned." Prock said he tried to

determine who owned the property by looking up tax information on the Snohomish

County Assessor's website but he "wasn't really getting anywhere with that." Prock next

talked to a neighbor who told him that she did not think anyone lived in the home. Prock

testified he found a past-due cable bill addressed to "Casey Robinett" in a recycling bin

in front of the home. Prock said he performed a search on Facebook for individuals

named Casey Robinett. Prock found a Facebook account owned by a young female
No. 73121-1-1/4


with that name living in Florida. Because this was the only profile on Facebook for an

individual named Casey Robinett, Prock concluded the house was abandoned.

       Prock stated that when he walked to the back of the house, the back door was

"standing open." Prock said he walked into the house and saw a dog in a cage.

Because there was no food or water in the dog's dish, Prock concluded the dog must

have been "left behind." Prock said he called his girlfriend and told her to contact

animal control. Prock said that as soon as he walked into the bedroom, he heard

someone say, "Hey, who's here?" Prock testified he "proceeded to walk out" of the

house because he "didn't want to cause any trouble and wasn't there to, you know,

cause any trouble." Prock testified he did not touch or move anything in the house and

he did not take anything from the house. Prock said he did not enter the house "with

the intention of taking anything from the house."

       Prock admitted seeing "the police cars coming" with lights and sirens activated

but said he "didn't think that it had anything to do with what had just occurred." Prock

testified he made the right-hand turn because he "decided to go to my sister's" to "see

what's up there" and he did not see Officer Smith turn around to follow him.

       At the end of the trial, the court instructed the jury on the charged crime of

residential burglary as well as the lesser included offense of criminal trespass in the first

degree.

       During closing argument, the prosecutor argued the jury's decision on the charge

of residential burglary would likely turn on whether the jury found that Prock entered or

remained in the home "with the intent to commit a theft therein." The prosecutor argued

the "evidence shows quite clearly that the Defendant did enter into that property with the
No. 73121-1-1/5


intent to take the property therein." The prosecutor argued Prock's "story that he was

looking for a place to rent" was not credible.

       Again, this is where we come into the credibility determinations and
       looking closely at the evidence. Mr. Prock has offered a story that he was
       looking for a place to rent. He had sort of seen this place before and it
       stood out in his mind and that he ran into someone named Steve who
       said, yeah, that place, no one's there right now. As a matter of fact, the
       back door is open. No evidence that Steve was the owner or otherwise
       authorized him to go in there. But this place that he was looking at, he just
       runs into a guy in a bar and low and behold that back door is open. You
       know, and what a coincidence that the back door would be open on this
       day when we have the testimony from Monica and Casey as to how they
       make very certain that their back door is locked and was so on this day.

The prosecutor told the jury that "credibility determinations are yours" and that the jury

would need to decide whether Prock's story "holds water."

       The credibility determinations are yours. You will have to determine
       whether or not that holds water, this unknown Steve he just happened to
       meet in a bar and, oh, the back door was open.

       The defense argued the only element of residential burglary in dispute was

whether Prock intended to commit a theft in the home. The defense conceded Prock's

testimony established he "knowingly entered and remained in that building" and "he

knew that the entry or remaining was unlawful." Consequently, the defense told the jury

Prock "should be found guilty of criminal trespass, but not of residential burglary,"

because Prock's testimony and the evidence showed Prock did not intend to commit a

theft in the house.

       So, all of this shows that yes, he should be found guilty of criminal
       trespass, but not of residential burglary, because residential burglary
       requires the intention to commit a crime therein and the evidence doesn't
       support that. Ken's story doesn't support that and none of the evidence
       that you've heard supports that.
No. 73121-1-1/6



       The defense argued several times that Prock's testimony showed he did not

intend to commit a theft in the house. Specifically, the defense argued the "steps Ken

took to verifying that [the house was abandoned] before he even entered the house . ..

clearly establishes that there was no intent."

       He tried to find property records online to find out who the owner of the
       house was, he spoke to the neighbor and asked if anyone was living
       there, he looked in the garbage and then tried to find a Casey Robinett on
       Facebook. All of this supports the fact that he was just looking for a place
       to rent. He wasn't looking with the intention of committing a crime inside.
       He wasn't looking to take anything. He was just looking and doing his due
       diligence to try and find the owner of the house because he wanted to rent
       it.


       In rebuttal, the prosecutor asked the jury, "Is what the Defendant offered you

reasonable?" The prosecutor then told the jury, "If that is not reasonable to you, if,

based upon on your life experiences, that is not reasonable, find him guilty. That's not a

request. That's your obligation under the law. Find him not guilty if that's reasonable."

       Is what the Defendant offered you reasonable? Is it? Is it reasonable
       based on your common experiences, based upon what you know of how
       people act, how they interact, the way the world works, walking into bars
       by happenstance, people named Steve, just happened to change your
       mind at the last second, take this other route. If that is not reasonable to
       you, if, based upon on your life experiences, that is not reasonable, find
       him guilty. That's not a request. That's your obligation under the law.
       Find him not guilty if that's reasonable.

Prock did not object.

       The jury convicted Prock of residential burglary and the court imposed a

13-month standard range sentence.

                                        ANALYSIS


       Prock contends prosecutorial misconduct during closing argument denied him of

the right to a fair trial. Prock argues the prosecutor improperly shifted the burden of
No. 73121-1-1/7


proof by arguing the jury must convict Prock if it found his testimony was not

reasonable.


       To prevail on a claim of prosecutorial misconduct, a defendant must show the

prosecutor's argument was both improper and prejudicial. State v. Warren, 165 Wn.2d

17, 26, 195 P.3d 940 (2008). An abuse of discretion standard applies to allegations of

prosecutorial misconduct. State v. Lindsay. 180 Wn.2d 423, 430, 326 P.3d 125 (2014).

A prosecuting attorney "commits misconduct by misstating the law." State v. Allen. 182

Wn.2d 364, 373, 341 P.3d 268 (2015). Prosecutorial misconduct is prejudicial where

there is a substantial likelihood the improper conduct affected the jury's verdict. State v.

Yates. 161 Wn.2d 714, 774, 168 P.3d 359 (2007). In analyzing prejudice, "we do not

look at the comments in isolation, but in the context of the total argument, the issues in

the case, the evidence, and the instructions given to the jury." State v. Emery. 174

Wn.2d 741, 764 n.14, 278 P.3d 653 (2012). If a defendant does not object at trial, the

defendant 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. Emery. 174 Wn.2d at 760-61.

       During rebuttal argument, the prosecutor "is entitled to make a fair response to

the arguments of defense counsel." State v. Gauthier. 189 Wn. App. 30, 37, 354 P.3d

900 (2015); State v. Gregory. 158 Wn.2d 759, 842, 147 P.3d 1201 (2006); State v.

Russell. 125 Wn.2d 24, 87, 882 P.2d 747 (1994). Even where the comments are

improper, the remarks by the prosecutor are not grounds for reversal" 'if they were

invited or provoked by defense counsel and are in reply to his or her acts and

statements, unless the remarks are not a pertinent reply or are so prejudicial that a
No. 73121-1-1/8


curative instruction would be ineffective.'" State v. Weber. 159 Wn.2d 252, 276-77, 149

P.3d 646 (2006) (quoting Russell. 125 Wn.2d at 86); Gauthier. 189 Wn. App. at 38.

       The State has the burden of proving the elements of a crime beyond a

reasonable doubt. In re Winship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368

(1970); State v. Borrero. 147 Wn.2d 353, 364, 58 P.3d 245 (2002). "Shifting the burden

of proof to the defendant is improper argument." In re Pers. Restraint of Glasmann. 175

Wn.2d 696, 713, 286 P.3d 673 (2012). "Misstating the basis on which a jury can acquit

insidiously shifts the requirement that the State prove the defendant's guilt beyond a

reasonable doubt." Glasmann. 175 Wn.2d at 713: State v. Vassar. 188 Wn. App. 251,

260, 352 P.3d 856 (2015).

       Prock relies on Glasmann to argue the prosecutor shifted the burden of proof by

misstating the basis on which the jury could acquit. In Glasmann. the prosecutor told

jurors that in order to reach a verdict, they must determine, "Did the defendant tell the

truth when he testified?" Glasmann. 175 Wn.2d at 701.2 Our Supreme Court stated

this argument "strongly insinuated that the jury could acquit (or find him guilty of lesser

charges) only if it believed Glasmann." Glasmann. 175 Wn.2d at 713. Because "the

proper standard is whether the evidence established that he was guilty of the State's

charges beyond a reasonable doubt," the court concluded it "was clearly misconduct for

the prosecutor to inform the jury that acquittal was appropriate only ifthe jury believed

Glasmann." Glasmann. 175 Wn.2d at 713-14. Here, as in Glasmann. the prosecutor's

remarks misstated the law and constituted misconduct.

       However, because Prock cannot show there is a substantial likelihood the

argument affected the jury's verdict, he cannot show the argument was prejudicial. The

       2 Internal quotation marks omitted.


                                              8
No. 73121-1-1/9


State had a strong case. The defense conceded every element of residential burglary

except the requirement that Prock entered the house with intent to commit a theft. The

State introduced ample evidence at trial to support the intent element of the crime.

Robinett testified that on May 8, Prock told him he was sent to "clear out the house."

Similarly, Officer Smith testified Prock stated Steve told Prock "he could take what he

wanted" from the house but he had not been able to take anything because "he didn't

have time." Prock's own testimony established Steve told him the house "needed to be

cleaned up." Further, the court's instructions to the jury correctly stated that to convict

Prock of residential burglary, the jury must find each of the elements of the crime

beyond a reasonable doubt; informed the jurors that the law was contained in the court's

instructions; and directed the jury to disregard any statement by the lawyers that was

not supported by law in the court's instructions. "We presume that juries follow all

instructions given." State v. Stein. 144 Wn.2d 236, 247, 27 P.3d 184 (2001); State v.

Condon. 182 Wn.2d 307, 333, 343 P.3d 357 (2015).

       Moreover, nothing suggests the prosecutor's statement was so flagrant and ill

intentioned that any prejudice could not have been obviated with a curative instruction.

Warren. 165 Wn.2d at 28 (holding court's instruction cured prosecutor's argument

undermining the State's burden of proof); see Glasmann. 175 Wn.2d at 713-14 (noting

argument misstating basis on which a jury may acquit "in and of itselfwould probably

not justify reversal"). Because Prock did not object to the prosecutor's argument at trial,

he has waived his right to challenge it on appeal. Emery. 174 Wn.2d at 760-61.

       In the alternative, Prock contends his attorney provided ineffective assistance of

counsel by not objecting to the argument.
No. 73121-1-1/10


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

Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009). "Courts strongly presume that

counsel's representation was effective." Emery. 174 Wn.2d at 755. To establish

ineffective assistance of counsel, a defendant must show both that counsel's

performance was deficient and that the performance prejudiced the defendant's case.

Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

Emery. 174 Wn.2d at 755. "Deficient performance is performance falling 'below an

objective standard of reasonableness based on consideration of all the

circumstances.'" State v. Kvllo. 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (quoting

State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). "Judicial review of

an attorney's performance is highly deferential. . . and such performance is not

deficient if it can be considered a legitimate trial tactic." State v. Humphries, 181 Wn.2d

708, 720, 336 P.3d 1121 (2014). "[T]he defendant must show in the record the absence

of legitimate strategic or tactical reasons supporting the challenged conduct by

counsel." McFarland. 127 Wn.2d at 336. "To establish prejudice, a defendant must

show that but for counsel's performance, the result would have been different." State v.

McNeal. 145 Wn.2d 352, 362, 37 P.3d 280 (2002).

       Even if Prock could establish the failure to object was deficient and not a

strategic decision, he cannot show prejudice. Prock does not show that "but for

counsel's performance, the result would have been different." McNeal, 145 Wn.2d at

362. Thus, we hold Prock's trial counsel was not ineffective for failing to object to the




                                             10
No. 73121-1-1/11


prosecutor's misstatement of the basis on which the jury could convict Prock.

      We affirm.




                                                        i/A.rfcjLgM
WE CONCUR:




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