      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                               )           No. 78949-0-I
                                                   )
                     Respondent,                   )           DIVISION ONE
                                                   )
             v.                                    )           UNPUBLISHED OPINION
                                                   )
GREGORY ALLAN MCMORRIS,                            )
                                                   )
                     Appellant.                    )
                                                   )


      ANDRUS, A.C.J. — Gregory Allan McMorris challenges his jury conviction for

theft of a motor vehicle, contending the prosecutor’s misconduct during closing

argument deprived him of his right to a fair trial.              We conclude the court’s

instructions cured any possible prejudice caused by the prosecutor’s improper

statements and affirm.

                                           FACTS

      On July 9, 2017, Sandra Todaro parked her Ford Explorer in the Quil Ceda

Creek Casino parking lot, located on the Tulalip Indian Reservation, and entered

the casino. The vehicle was loaded with materials for a swap meet the following

weekend, including plywood fastened to the roof. While gaming inside, Todaro

lost her keys and, after checking for them with security, discovered someone had

stolen her Explorer.

      Casino security reviewed security video footage, which revealed Todaro

dropping her keys as she left a slot machine. A woman, identified as Stephanie


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No. 78949-0-I/2


Burger, picked up the keys and appeared to ask someone nearby about them.

Then Burger walked away with the keys, spoke to a man in the casino, and gave

him the keys. The man walked to the parking lot, and shortly thereafter, the

security footage shows Todaro’s Explorer—identified by the plywood fastened to

the roof—leaving the parking lot. The footage further revealed that the man to

whom Burger gave the keys had arrived at the casino in a car with Burger and

another woman.

      Tulalip Police Officer Ian Schmitz responded to the casino’s call about

Todaro’s stolen Explorer. When Officer Schmitz completed his interview with

Todaro, casino security called him to say they had located Burger as she was

exiting the casino. Officer Schmitz took statements from Burger and her friend,

Victoria Johnson. Officer Schmitz testified that he learned McMorris’s name from

these statements and later identified McMorris in the security footage by matching

his driver’s license photo. One of the women called Officer Schmitz later that

evening, and based on the information he received from her, he contacted the

Snohomish County Sheriff’s Office to assist him in searching for McMorris on

property located in Stanwood, off the reservation. When Officer Schmitz stated,

during his trial testimony, that the woman gave him a particular address, McMorris

objected. The trial court sustained the hearsay objection and struck the evidence.

      Snohomish County Sheriff Deputies Robert Schweitzer and Craig Hess

went to the Stanwood address in the early morning hours of July 10, 2017. Neither

deputy saw any sign of McMorris or the stolen Explorer. A few hours later, Deputy

Hess returned to the Stanwood address and discovered Todaro’s Explorer hidden



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behind the home, with the front and back license plates covered. Deputy Hess still

did not see anyone in or around the house, but he heard the locks on the Explorer

locking and unlocking, as though someone nearby was using the remote entry key

fob. Deputy Hess called out to anyone who might be in earshot, asking for the

keys, but when no one responded, he had the Explorer towed away.

       Todaro retrieved her Explorer from the tow yard later that morning. All of

the items for the swap meet, including the plywood she had secured to the top of

the vehicle, were missing, and the vehicle had sustained new damage.

       Deputy Schweitzer arrested McMorris for stealing the Explorer, and the

State charged McMorris with one count of theft of a motor vehicle. While in the

Snohomish County jail pending trial, McMorris called his father. McMorris was

recorded saying:

       I’m gonna sit in here because I’m doin’ easy time, Dad. And I might
       have to do a little time for this fucking shit I did. . . . fuckin’ those
       bitches . . . . that said I fucking did this shit . . . . Check this out, I
       might have to do some time for that, but I’m gonna come take care
       of my shit first.

       At trial, the State presented the security footage and McMorris’s jail call, but

neither Burger nor Johnson testified. Todaro testified to the events as described

above, including the presence of new damage to her Explorer when she retrieved

it from the tow yard on July 10, 2017. Specifically, the driver’s side exterior mirror

was torn off and the front left fender was smashed.

       During closing, McMorris argued the State failed to call Burger as a witness

so there was no way of knowing what transpired between Burger and him on the

security footage. Therefore, McMorris argued, there was nothing linking him to the



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theft. In rebuttal, the prosecutor argued there was evidence linking McMorris to

the theft—specifically, the evidence that one of the women had called Officer

Schmitz, to give him McMorris’s address. But the trial court had excluded that

evidence as hearsay.       McMorris objected, and the trial court sustained the

objection, telling the jury to disregard the prosecutor’s statement.          Rebuttal

continued:

       [PROSECUTOR]: All right. You are aware that [O]fficer Schmitz
       spoke to these women. We are aware that Officer Schmitz –

       [DEFENSE COUNSEL]: Your Honor, I would object. Counsel is
       asking the jury to speculate.

       THE COURT: Sustained. Sustained.

       [PROSECUTOR]: You are aware of where the deputies ended up,
       the address that they ended up, and you can use your common
       sense to –

       [DEFENSE COUNSEL]: Your Honor.

       At that point, the trial court had the jury retire to the jury room, and McMorris

moved for a mistrial. The trial court told the prosecutor, who appeared confused

by the evidentiary ruling, that he could not base an argument on evidence the court

had excluded in trial.

       You were not able to present any competent evidence of whatever
       those ladies told anybody because they were not available, and
       whatever they had to say was hearsay. I am not going to allow you
       to suggest to the jury what it was that they said, because that’s just
       not proper. And that’s exactly what you’re trying to do, is to try to let
       the jury know that those witnesses provided information to the
       officers, which is hearsay. It’s not admissible for the truth of the
       matter asserted.

The court indicated the prosecutor was very close to a mistrial, telling him his

argument was improper. When the jury reentered, the court gave this instruction—

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“I’m striking the last comment made by [the prosecutor], and you’re to disregard

it.” The court’s instructions to the jury also included the standard instruction that

the attorneys’ comments are not evidence or the law and that the jury has to base

its decision on the evidence presented at trial and on the instructions given to them

by the court.

       The jury convicted McMorris as charged. McMorris renewed his motion for

a mistrial, which the trial court denied. The trial court sentenced McMorris to nine

months confinement with credit for time served.

       McMorris appeals.

                                    ANALYSIS

       McMorris argues the prosecutor’s improper reference to excluded evidence

during closing argument denied him a fair trial. He contends there is a substantial

likelihood the improper argument affected the jury’s verdict because the State’s

case against him was so weak. He further argues the errors could not be remedied

through the court’s curative instructions because the prosecutor made the

improper statements during rebuttal. While we agree the prosecutor’s statements

in rebuttal were improper, we conclude the court’s subsequent instructions cured

any prejudice.

       “‘Allegations of prosecutorial misconduct are reviewed under an abuse of

discretion standard.’” State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014)

(quoting State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995)).            The

defendant bears the burden of showing that the comments were improper and, if

so, whether the improper comments caused prejudice. State v. Emery, 174 Wn.2d



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741, 756, 278 P.3d 653 (2012); State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940

(2008). Because McMorris objected to the prosecutor’s statements at trial and

moved for a mistrial, McMorris must show that the prosecutor’s misconduct

resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict.

Emery, 174 Wn.2d at 760. “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.” Warren, 165 Wn.2d at 28.

       “‘Misconduct is to be judged not so much by what was said or done as by

the effect which is likely to flow therefrom.’” Emery, 174 Wn.2d at 762 (quoting

State v. Navone, 186 Wash. 532, 538, 58 P.2d 1208 (1936)). Focusing on the

effect of the prosecutor’s conduct is crucial because even “certainly flagrant”

conduct may be cured in light of the context of the total argument, issues, evidence,

and jury instructions. Id. at 762 n.13 (quoting Warren, 165 Wn.2d at 27). “‘The

criterion always is, has such a feeling of prejudice been engendered or located in

the minds of the jury as to prevent a [defendant] from having a fair trial?’” Id. at

762 (alteration in original) (quoting Slattery v. City of Seattle, 169 Wash. 144, 148,

13 P.2d 464 (1932)).

       We begin by analyzing the propriety of the prosecutor’s comments. While

a prosecuting attorney has wide latitude during closing argument to draw and

express reasonable inferences from the evidence, State v. Gentry, 125 Wn.2d 570,

641, 888 P.2d 1105 (1995), it is improper for a prosecutor to argue from facts not

in evidence, State v. Perkins, 97 Wn. App. 453, 459, 983 P.2d 1177 (1999).

       McMorris challenges the following argument by the prosecutor in rebuttal:



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       [PROSECUTOR]: It’s worth discussing, the possibility that Ms.
       Burger and Ms. Johnson -- and I would suggest Ms. Johnson
       somehow might have been the one to disappear and take this
       vehicle, even though, again, what you saw from the surveillance
       doesn’t line up with that at all. So Ms. Burger must have then, after
       leaving at 12:30, and mind you, they just had been speaking with
       Officer Schmitz, as you heard, and they are the ones that told Officer
       Schmitz the address that Officer Schmitz relayed to the sheriff’s --

       [DEFENSE COUNSEL]: Your Honor, I would object and ask that that
       be stricken.

       THE COURT: I’m sustaining that objection. I’m striking that, and
       telling the jury to disregard that statement.

       [PROSECUTOR]: All right. You are aware that [O]fficer Schmitz
       spoke to these women. We are aware that Officer Schmitz –

       [DEFENSE COUNSEL]: Your Honor, I would object. Counsel is
       asking the jury to speculate.

       THE COURT: Sustained. Sustained.

       [PROSECUTOR]: You are aware of where the deputies ended up,
       the address that they ended up, and you can use your common
       sense to –

       [DEFENSE COUNSEL]: Your Honor.

(Emphasis added.)

       The State concedes the first statement’s impropriety. It contends, however,

that the other two statements were supported by the evidence and that the

prosecutor was arguing permissible inferences. The other two statements were

supported by the evidence, but we disagree that the prosecutor’s attempted

argument from these statements was a permissible inference.

       The cases on which the State relies are distinguishable as neither case

involved a prosecutor asking a jury to infer—from the fact that a police officer spoke

with a witness and thereafter arrested a defendant—that the witness told police

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the defendant had committed the crime. In re Pers. Restraint of Phelps, 190 Wn.2d

155, 167-68, 410 P.3d 1142 (2018) (in rape of child case, prosecutor argued

defendant’s conduct constituted “grooming” of victim; characterization of

defendant’s relationship with victim was permissible inference drawn from

admitted evidence); Perkins, 97 Wn. App. at 459-60 (permissible for prosecutor to

argue that, given the likely street value of the amount of methamphetamine found

in defendant’s car, it was reasonable to infer defendant’s possession was not

unwitting).

       Here, the prosecutor wanted the jury to infer—from the fact that Burger or

Johnson called Officer Schmitz and the fact that deputies later showed up at

McMorris’s property—that the women told Officer Schmitz where to find McMorris

and the stolen vehicle. But neither Burger nor Johnson testified at trial. Any

inference about the content of the conversation would have been unreasonable

because it was not based on any admitted evidence. For this reason, we conclude

the prosecutor’s statements were improper as well.

       Nevertheless, we conclude McMorris has failed to demonstrate a

substantial likelihood that the prosecutor’s statements affected the jury’s verdict.

The evidence showed McMorris knew Burger and Johnson because he arrived at

the casino with them. The security footage showed Burger picking up Todaro’s

keys and then handing them to McMorris. Then McMorris is seen exiting the

casino with the keys, and a few minutes later, an Explorer closely resembling

Todaro’s can be seen leaving the casino parking lot. Several hours later, sheriff’s

deputies recovered Todaro’s Explorer, hidden on property McMorris admitted



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belonged to him. And lastly, while in custody on only one charge—the theft of the

Explorer—McMorris admitted to his father in a recorded jail call that he might have

to do some time for what he did.

        McMorris objected to each of the prosecutor’s improper statements in

closing. The court sustained the objections and instructed the jury to disregard the

statements. Juries are presumed to follow instructions, including the instructions

that counsel’s arguments are not evidence and to disregard improper evidence.

Warren, 165 Wn.2d at 29; see also State v. Dye, 178 Wn.2d 541, 556, 309 P.3d

1192 (2013); State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994). Given the

evidence of McMorris’s involvement in the theft, we conclude the court’s

instructions to the jury cured any possible prejudice from the improper statements

and there is little likelihood the improper statements affected the jury’s verdict. See

Warren, 165 Wn.2d at 28 & n.5 (holding no prejudice where prosecutor’s “flagrant”

misstatement of reasonable doubt standard cured by trial court instruction).

        McMorris argues the trial court’s instructions were insufficient to cure any

prejudice. We are unpersuaded by this argument.

        The cases on which McMorris relies are distinguishable. 1                     In State v.

Copeland, 130 Wn.2d 244, 284-85, 922 P.2d 1304 (1996), our Supreme Court held

a curative instruction was sufficient to alleviate any possible prejudice caused by

a prosecutor improperly cross-examining a key defense witness by mentioning

horrific details of that witness’s prior crimes. While the questions were deemed an



1
 Neither State v. Escalona, 49 Wn. App. 251, 252, 256, 742 P.2d 190 (1987), nor Krulewitch v.
United States, 336 U.S. 440, 442-45, 453, 69 S. Ct. 716, 93 L. Ed. 790 (1949), involve prosecutorial
misconduct. As a result, they are inapplicable and McMorris’s reliance on them is misplaced.

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improper attempt to influence the jury’s perception of the witness and his

testimony, the court nevertheless held that, in light of the circumstances of the

case, the curative instruction alleviated any prejudice. Id. at 285. The cross-

examination questions in Copeland were far more egregious and potentially

prejudicial than the prosecutor’s closing arguments here.

       And in State v. Belgarde, 110 Wn.2d 504, 508-10, 755 P.2d 174 (1988),

during a murder trial, the prosecutor said the defendant belonged to the American

Indian Movement (AIM), a “group of butchers and madmen who killed

indiscriminately.” Id. at 508. The prosecutor went on to compare AIM members

to “Kadafi,” the former dictator of Libya, and to Sean Finn of the Irish Republican

Army (IRA). Id. The court held these statements, to which the defendant did not

object, introduced facts not in evidence and were so highly inflammatory and

prejudicial that retrial was the only remedy. Id. The ruling was based on the

substantial likelihood that no curative instruction could have “erased the fear and

revulsion jurors would have felt if they had believed the prosecutor’s description of

the Indians involved in AIM.” Id.

       McMorris cannot credibly argue his case is analogous to the circumstances

in Belgarde.   The prosecutor made three statements about Officer Schmitz’s

interaction with Burger and Johnson; he did not make inflammatory comments

about McMorris’s past crimes or any links to any organizations potentially

perceived by jurors as violent.

       Given the evidence against McMorris, he has failed to show that he was

prejudiced by the prosecutor’s comments. In light of all the circumstances, we



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conclude any possible prejudice resulting from the improper argument was cured

by the court’s instruction. Because there was no prejudice affecting the jury’s

verdict, the court did not abuse its discretion by denying McMorris’s motion for a

mistrial. Emery, 174 Wn.2d at 765 (review a trial court’s decision on a motion for

mistrial for an abuse of discretion; abuse exists only “‘“when no reasonable judge

would have reached the same conclusion”’”) (quoting State v. Hopson, 113 Wn.2d

273, 284, 778 P.2d 1014 (1989) (quoting Sofie v. Fibreboard Corp., 112 Wn.2d

636, 667, 771 P.2d 711, 780 P.2d 260 (1989))).

      Affirmed.




WE CONCUR:




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