     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

STATE OF WASHINGTON,                        )      No. 68314-4-1                      (=3
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FOUAD ALI AHMED,                            )      UNPUBLISHED OPINION                  o

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              Appellant.                    )      FILED: June 3, 2013                                 '"




       Verellen, J. — Fouad Ahmed appeals his conviction for delivery of cocaine.

Ahmed argues the prosecutor committed misconduct by misstating the law, by

expressing a personal opinion on his credibility, and by misstating the jury's role. The

prosecutor properly articulated the knowledge element of the delivery charge and did
not express a personal opinion on Ahmed's credibility. The prosecutor told the jury that

"[w]e can't be afraid of the truth in this case."1 The prosecutor did not tell the jury that it
had to declare the truth, which would have been an improper statement of the jury's

role. No misconduct occurred, and we affirm Ahmed's conviction.

                                       BACKGROUND

       In the early evening of August 31, 2008, Fouad Ahmed and Said Elazmaoui were

sitting in a coffee shop in the Pine/Pike corridor of downtown Seattle. Ahmed testified



       1Report of Proceedings (RP) (July 14, 2009) at 143.
No. 68314-4-1/2



that Elazmaoui asked him for $40 to go buy something. Before Elazmaoui left, he

placed several rocks of crack on the table where Ahmed sat. According to Ahmed, he
did not know it was crack cocaine.

       On this same day, the Anti-Crime Team of the Seattle Police Department was

targeting the 200 block of Pine Street. Officer Jennifer Morris was working undercover

and was walking down the street when Elazmaoui approached her and asked ifshe

wanted to have some "fun."2 When Officer Morris asked what type of fun, Elazmaoui
replied that they could "get some dope and smoke it together."3 Officer Morris said she
was looking for "rocks."4

       Elazmaoui led Officer Morris to the coffee shop where Ahmed had remained.

Elazmaoui and Ahmed spoke for about 30 seconds in Arabic, a language Officer Morris

could not understand. Officer Morris then asked Elazmaoui if Ahmed had any rocks.

Elazmaoui said Ahmed did and asked Officer Morris to sit down next to Ahmed.

According to Officer Morris, Ahmed asked if she had $40, and Officer Morris asked

Ahmed if he had any rocks. Ahmed showed Officer Morris two white rocks that

appeared to be crack cocaine, which he held in his hand. Officer Morris gave $40 to

Ahmed and took the two rocks from Ahmed's hand.

      According to Ahmed, when Elazmaoui arrived with Officer Morris, Elazmaoui told

Ahmed he would give back the $40 if Ahmed returned "the thing that Igave you."5
Ahmed testified that when he asked Elazmaoui for the $40, Elazmaoui told Ahmed to


          RP (July 13, 2009) at 33.
      3!cL
      4 kL "Rock" is a street name for rock cocaine.
      5
          RP (July 14, 2009) at 108.
No. 68314-4-1/3



take the cash from Officer Morris. Ahmed further testified that as he attempted to return

the crack to Elazmaoui, Officer Morris grabbed the crack from Ahmed's hand and gave

him $40.

          Shortly thereafter, police arrested Ahmed at the scene. The rocks tested positive

as crack cocaine. The State charged Ahmed with one count of delivery of cocaine

under the Uniform Controlled Substances Act, chapter 69.50 RCW, and a jury convicted

him. Ahmed timely appeals.

                                        DISCUSSION


          Ahmed contends he was deprived of a fair trial due to multiple instances of

prosecutorial misconduct. To prevail on a claim of prosecutorial misconduct, Ahmed

must show the prosecutor's conduct was both improper and prejudicial in the context of

the entire record and circumstances at trial.6 We will find prejudice only if there is a
substantial likelihood that the misconduct affected the jury's verdict.7
          Defense counsel did not object to any of the alleged instances of misconduct.

Absent a proper objection and request for a curative instruction, Ahmed must

demonstrate the prosecutor's comments were so flagrant or ill-intentioned that an

instruction could not have cured the prejudice.8 Defense counsel's failure to object
strongly suggests the argument in question did not appear prejudicial in the context of

trial.9




          6 State v. Stenson. 132 Wn.2d 668, 718-19, 940 P.2d 1239 (1997).
          7\JL
          8 State v. Anderson, 153 Wn. App. 417, 427, 220 P.3d 1273 (2009).
          9 State v. McKenzie. 157 Wn.2d 44, 52, 134 P.3d 221 (2006).
No. 68314-4-1/4



       The first alleged instance of misconduct occurred when the prosecutor told the jury

during closing that Ahmed "doesn't need to know ... what was in his hand."10 Ahmed

contends this comment constituted an improper statement of the knowledge element of

the crime of delivery of a controlled substance pursuant to RCW 69.50.401 (1).11 The

crime of delivery of a controlled substance requires the State to allege and prove a

defendant knew he was delivering a controlled substance, but it is not required to allege

or prove a defendant knew what specific controlled substance he was delivering.12
       While the single sentence Ahmed highlights is an inaccurate statement of the

law, Ahmed takes the prosecutor's comment out of context. The full statement by the

prosecutor accurately explained the State's burden to prove Ahmed knew he had crack

in his hand:


               The defendant knew that the substance delivered was a controlled
       substance.


               We heard some testimony here late in the day. Did he know?
       Well, what is the definition of know?

               In this case, the jury instructions give it to you. It's instruction
       number ten.

              The second sentence is: [It is] not necessary that the person know
       that that the fact, circumstances or result as defined by law as being
       unlawful, in other words, he doesn't need to know that what was in his
       hand, it was illegal to have in his hand, he just needs to know that it was
       there....



       10 RP (July 14, 2009) at 133.
       11 "[l]t is unlawful for any person to manufacture, deliver, or possess with intent to
manufacture or deliver, a controlled substance." RCW 69.50.401(1).
       12 State v. Nunez-Martinez. 90 Wn. App. 250, 253-56, 951 P.2d 823 (1998); see
also State v. Vanoli. 86 Wn. App. 643, 646, 937 P.2d 1166 (1997) ("Guilty knowledge,
i.e., knowledge that the drug being delivered is illegal, is an essential element of the
crime of delivery of a controlled substance.").
No. 68314-4-1/5



                The law in this case on this particular element about knowledge is
       did you know that that, in this case, crack cocaine wasin your hand?[™]
Although not the most artful articulation, the prosecutor's discussion of the knowledge

element was not misconduct, and, even if misconduct, does not satisfy the "flagrant and

ill-intentioned" standard Ahmed must meet.

      Ahmed next argues the prosecutor committed misconduct by telling the jury not

to be afraid of the truth. Ahmed contends the comments amounted to a misstatement of

the jury's role. During rebuttal, the prosecutor stated, "These facts, we can't get away

from them. This evidence, we can't get away from it. It's tough. We can't be afraid of

the truth in this case."14 Moments later, as the prosecutor ended rebuttal, he stated,
"And her [Officer Morris's] testimony was she walked up, she had some conversations,

and that's when the crack was revealed to her. You can't be afraid of the truth in this

case."15

       In State v. Anderson, the prosecutor told the jury that "by your verdict in this

case, you will declare the truth about what happened."16 Defense counsel objected.
Division Two of this court determined the comment was improper because "the jury's

duty is to determine whether the State has proved its allegations against a defendant

beyond a reasonable doubt."17 In analyzing whether there was a substantial likelihood




       13
            RP (July 14, 2009) at 133-34 (emphasis added).
       14 JU at 143.
       15 JU at 144-45.
       16 153 Wn. App. 417, 424, 220 P.3d 1273 (2009).
       17 Id. at 429.
No. 68314-4-1/6



the comment affected the verdict,18 the court looked to the existence of clear jury
instructions articulating the jury's actual duties, coupled with counsel's discussion of the

evidence during closing, and determined Anderson had not met his burden.19

       The State distinguishes Anderson, arguing the prosecutor here never told the

jury to "declare" the truth, but instead argued the jury could not be afraid of the truth.

The prosecutor's comments in Anderson directed the jury to "declare the truth," the

defendant objected, and this court still held that a new trial was not warranted.20 An

equally important distinction is Ahmed's counsel's failure to object in this case. Here,

the prosecutor's comment was not a directive to the jury to determine the truth, and

defense counsel did not object. As in Anderson, the jurywas properly instructed on its

duties and the State's burden. And, as in Anderson, counsel discussed the evidence

thoroughly during closing arguments. We therefore conclude that ifthe improper

directive in Anderson did not warrant a new trial, Ahmed cannot demonstrate the

prosecutor's comment—which was not a directive to the jury to find the truth—was so

flagrant or ill-intentioned that an instruction could not have cured the prejudice.

       Ahmed also contends the prosecutor twice impermissibly commented on his

credibility. A prosecutor has wide latitude in closing argument to draw reasonable

inferences from the evidence and to freely comment on witness credibility based on the




       18 If a statement is improper but defense counsel objects, as in Anderson, the
court considers whether there was a substantial likelihood the statements affected the
jury's verdict. ]d. at 427.
       19 JU at 429.
       20 Id.
No. 68314-4-1/7



evidence.21 Prejudicial error will not be found unless it is "clear and unmistakable" that
counsel is expressing a personal opinion.22

       First, Ahmed argues the prosecutor's comment that the jury could not "fear the

truth" constituted an impermissible opinion on his credibility. Ahmed further highlights
that during his rebuttal argument, the prosecutor used the first person to refer to

Ahmed's testimony, indirectly rendering a comment on Ahmed's credibility:

               Sometimes I don't know what to do, but I know what not to do. I
       know I don't take the stand in my defense, claim a mental injury, not
       provide proof.

             I know that if I'm going to say that I was injured, I'm going to think
       about how is it I need to show that to the jury.

            I know that I'm not going to question an officer, their credibility,
      when I've struggled through my own answers under the direct questions
      that were asked of him by co-counsel.



             We've seen the defendant chose to testify on his behalf. Defendant
      chose .. .to sit in this chair and struggle through answers, and now the
      question is being put back on the State about the answers that were given
       by its officers.123'

       Neither of the comments reflected counsel's personal opinion, despite Ahmed's

contention to the contrary. Rather, the prosecutor's arguments drew inferences from

the evidence regarding the defendant's credibility.




      21 State v. Gregory. 158 Wn.2d 759, 860, 147 P.3d 1201 (2006).
      22 State v. Brett. 126 Wn.2d 136, 175, 892 P.2d 29 (1995) (quoting State v.
Sargent, 40 Wn. App. 340, 344, 698 P.2d 598 (1985)); see also State v. Ish. 170 Wn.2d
189, 196, 241 P.3d 389 (2010) (it is misconduct for a prosecutor to vouch for a witness
by expressing a personal belief as to the witness's truthfulness).
      23 RP (July 14, 2009) at 143-44.
No. 68314-4-1/8



      And with respect to the second comment in which the prosecutor adopted the

first person, it appears the prosecutor was attempting to address Ahmed's testimony

about the effects of his brain injury. During direct examination, Ahmed's counsel had

asked him about a "significant incident" in his life."24 Ahmed testified that he had
suffered a head injury and had brain surgery after being beaten by thieves. He testified

the brain injury affected his ability to "perceive and know things," as well as caused him

to have seizures.25

       Finally, Ahmed relies on State v. Pierce for the proposition that a prosecutor

commits misconduct when he or she steps into the shoes of the defendant and uses the

first person to discuss the defendant's thought processes.26 In Pierce, a prosecution for
felony murder, burglary, robbery, and arson, the prosecutor appealed to the passion

and prejudice of the jury and argued facts outside the evidence, including (1) the

prosecutor's first person narrative of the thoughts Pierce must have had leading up to

the crimes; and (2) the prosecutor's fabricated description of the murders.27
       While the prosecutor should have avoided the use of the first person, he was

attempting to address Ahmed's testimony about the effects of his brain injury. Unlike in

Pierce, the prosecutor did not draw on facts outside the evidence or "attribute]

repugnant and amoral thoughts" to the defendant; "thoughts that were based on the


       24 JU at 98.
       25 Id at 99.
       26 169 Wn. App. 533, 553, 280 P.3d 1158, review denied. 175 Wn.2d 1025, 291
P.3d 253 (2012).
       27 Id A third instance of misconduct in Pierce was the prosecutor's argument
that the victims could not have imagined they would be murdered in their own home. Jd,
at 553, 555.


                                              8
No. 68314-4-1/9



prosecutor's speculation and not the evidence."28 Nor did the prosecutor fabricate a
narrative of the crime, as in Pierce. Ahmed's reliance on Pierce is misplaced.

      Affirmed.




WE CONCUR:




      28 Id. at 554.
