                                                                                                    FILED
                                                                                            COUR T OF
                                                                                                          APPEALS

                                                                                          2015 MAR - 3 ,
                                                                                                         H 3: 35
                                                                                          ST'AT

                                                                                          BY
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                           DIVISION II

 STATE OF WASHINGTON,                                                   No. 45199 -9 -II


                                   Respondent,


           v.



 MICHAEL W. LOWE,                                                 UNPUBLISHED OPINION


                                   Appellant.




          LEE, J. —   A jury found Michael W. Lowe guilty of felony harassment, harassment, and

bail jumping. Lowe appeals, arguing that ( 1) the State presented insufficient evidence to support

the conviction, (2) the prosecutor committed misconduct, and ( 3) he received ineffective assistance


of counsel.     Because the State presented sufficient evidence, the prosecutor did not commit


misconduct, and he did not receive ineffective assistance of counsel, his arguments fail. We affirm.

                                                 FACTS


          Shelton Police officers Greg Blaylock and Matthew Dickinson responded to a report of a

disturbance in progress. Dispatch notified Blaylock and Dickinson that an involved party, Michael

Lowe, left the scene of the disturbance on foot. Blaylock and Dickinson found Lowe intoxicated


nearby.


          Blaylock arrested Lowe for his involvement in the disturbance. Blaylock placed Lowe in


his patrol car. Because of Lowe' s intoxication, Blaylock was transporting Lowe to the hospital.

While in the    patrol car,   Lowe continuously thrashed   and   hit his head   against   the interior   of   the
No. 45199 -9 -II



patrol car, screamed racial and homophobic obscenities at Blaylock, and threatened to kill

Blaylock.


          Dickinson met Blaylock and Lowe at the hospital. When Blaylock took Lowe out of the

patrol car at the hospital, Lowe took a fighting stance, rocked his head back, and aggressively

walked    towards Dickinson.           Out of fear that Lowe would head -butt Dickinson, Blaylock and


Dickinson restrained Lowe on the ground until a wheelchair arrived.


          After   being    medically   cleared       for   booking,    Blaylock transported Lowe to the jail. While


being transported to the jail, Lowe continued to thrash around the patrol car, scream obscenities at

Blaylock, and threaten to kill Blaylock.


          In the second amended information, the State charged Lowe with felony harassment,

harassment, and bail jumping. The State presented two witnesses regarding the felony harassment

charge:    Officers Blaylock          and   Dickinson.        Blaylock and Dickinson testified that Lowe was


aggressive, took a fighting stance, and threatened to kill Blaylock. Blaylock testified that when he

and Dickinson approached Lowe, Lowe was belligerent and intoxicated, and that he knew Lowe


to be hostile towards law         enforcement          from   previous        interactions.   Blaylock also testified that


Lowe repeatedly       yelled    racial      and    homophobic         slurs   while   threatening   to kill him.   Blaylock


further testified that he took Lowe' s threats to kill him seriously.

          During the State' s closing arguments, the prosecutor commented that the State' s evidence

was uncontradicted. Lowe did not object during closing arguments. Following deliberations, the

jury returned     guilty   verdicts   for   all   three counts.       Lowe appeals.




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                                                        ANALYSIS


         Lowe challenges only the conviction for felony harassment. 1 Lowe alleges that ( 1) the

State presented insufficient evidence that Officer Blaylock reasonably feared that Lowe would

carry   out   his threat to kill Blaylock, ( 2)       the prosecutor committed misconduct by,commenting on

Lowe' s right not to testify, and ( 3) he received ineffective assistance of counsel because his counsel

did not object during the State' s closing arguments. We disagree and hold that the State presented

sufficient evidence to support the conviction and that the prosecutor did not commit misconduct.

Furthermore, because the prosecutor did not commit misconduct, Lowe' s argument that he

received ineffective assistance of counsel fails. We affirm Lowe' s conviction.

A.       SUFFICIENCY      OF THE       EVIDENCE - FELONY HARASSMENT


         Lowe alleges that the State presented insufficient evidence to support his conviction.


Specifically, Lowe argues that the State presented insufficient evidence that Officer Blaylock

reasonably feared that Lowe would carry out the threat to kill him. Lowe' s argument fails.

          The test for determining the sufficiency of the evidence is whether, after viewing the

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

beyond    a reasonable     doubt."      State   v.   Salinas, 119 Wn.2d 192, 201, 829 P. 2d 1068 ( 1992). " A


claim of insufficiency admits the truth of the State' s evidence and all inferences that reasonably

can   be drawn therefrom."             Salinas, 119 Wn.2d         at   201. "[   A] 11 reasonable inferences from the


evidence must be drawn in favor of the State and interpreted most strongly against the defendant."

Salinas, 119 Wn.2d         at   201.     Circumstantial evidence and direct evidence are deemed equally




1 Lowe does not challenge the convictions for misdemeanor harassment and bail jumping.

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No. 45199 -9 -II



reliable.   State   v.   Delmarter, 94 Wn.2d 634, 638, 618 P. 2d 99 ( 1980). "                  Credibility determinations

are   for the trier   of   fact   and cannot      be   reviewed on appeal."    State v. Camarillo, 115 Wn.2d 60, 71,


794 P. 2d 850 ( 1990).


           Under RCW 9A.46. 020, to convict Lowe of felony harassment, the State must prove

beyond a reasonable doubt that Lowe knowingly threatened to kill Blaylock immediately or in the

future, and that in the circumstances, Lowe' s words or conduct placed Blaylock in " reasonable

fear that the threat       will   be   carried out."     RCW 9A.46. 020( 1)(     a), (   b).


           Here, viewed in a light most favorable to the State, the evidence is sufficient to establish


that Blaylock was in reasonable fear that Lowe would carry out his threats to kill Blaylock.

Blaylock testified that he took Lowe' s threats to kill him seriously. Blaylock also testified that he

knew Lowe to be hostile towards law enforcement, Lowe was hostile and aggressive towards him,

Lowe was physically aggressive in the patrol car, and Lowe took a fighting stance with another

officer.



           To the extent Lowe argues that Blaylock could not have taken his threat to kill Blaylock


seriously because Lowe              was   in handcuffs, this      argument    fails.     A jury can find that the fear that

the threat would be carried out in the future is reasonable where a mere temporary condition

prevents    the threat from         being       carried out   immediately. See State v. Cross, 156 Wn. App. 568,

584, 234 P. 3d 288 ( 2010).              In Cross, the defendant, who was in handcuffs, threatened to assault

the   police officer "      if he   wasn'   t   in handcuffs."   156 Wn.   App.    at    583.   Relying on the fact that the

defendant would not remain handcuffed indefinitely, we held that the officer' s fear that the

defendant would carry out the threat was reasonable because the condition preventing the

defendant from carrying it              out— handcuffs— was         temporary. Cross, 156 Wn. App.              at   583.   We
No. 45199 -9 -II



hold that the State presented sufficient evidence to establish that Blaylock reasonably feared that

Lowe would carry out his threats to kill Blaylock. Accordingly, Lowe' s claim fails.

B.        PROSECUTORIAL MISCONDUCT


          Lowe argues that the prosecutor committed misconduct by directly commenting on Lowe' s

decision not to testify during the State' s closing argument. Lowe' s argument fails.

          To prevail on a claim of prosecutorial misconduct, Lowe must show 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.   Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011)).       Once a defendant


has demonstrated that the prosecutor' s conduct was improper, we evaluate the defendant' s claim

of prejudice under two different standards of review, depending on whether the defendant objected

to the misconduct at trial. Emery, 174 Wn. App. at 760. If the defendant objected, he 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 -61 ( citing State v. Anderson, 153 Wn. App. 417,

427, 220 P. 3d 1273 ( 2009), review denied, 170 Wn.2d 1002 ( 2010)).


           If the defendant did not object at trial, the defendant is deemed to have waived any error,

unless the prosecutor' s misconduct" was flagrant and ill intentioned. Emery, 174 Wn.2d at 760-

61 ( citing State    v.   Stenson, 132 Wn.2d 668, 726 -27, 940 P. 2d 1239 ( 1997), cent. denied, 523 U. S.


1008 ( 1998)).        The defendant is presumed to have waived any error by not objecting because

objections are required to prevent additional improper remarks and abuse of the appellate process.


Emery, 174 Wn.2d at 762. Therefore, when there is no objection, we apply a heightened standard

requiring the defendant to             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



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No. 45199 -9 -II



likelihood        of   affecting the       jury   verdict. "'    Emery, 174 Wn.2d at 761 ( quoting Thorgerson, 172

Wn.2d       at   455).    When reviewing a prosecutor' s misconduct that was not objected to, we " focus

less on whether the prosecutor' s misconduct was flagrant or ill intentioned and more on whether

the resulting       prejudice could         have been         cured."     Emery, 174 Wn.2d at 762.

             In closing argument, a prosecutor is afforded wide latitude to draw and express reasonable

inferences from the          evidence."       State v. Reed, 168 Wn. App. 553, 577, 278 P.3d 203, review denied,

176 Wn.2d 1009 ( 2012).                   When analyzing prejudice, we do not look at the comment 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.    Yates, 161 Wn.2d 714, 774, 168 P. 3d 359 ( 2007), cert. denied, 554 U.S.


922 ( 2008). "         Comments by a prosecutor that certain testimony is undenied are not improper as

long   as   there is      no reference       to   who    may be in        a position   to   deny   it." State v. Brett, 126 Wn.2d


136, 176, 892 P. 2d 29 ( 1995);               see State v. Sells, 166 Wn. App. 918, 930, 271 P. 3d 952 ( 2012).

            Lowe argues that during the State' s closing argument, the prosecutor " directly referred to

or implied that Lowe was the only person who could rebut the State' s case" and that the comments

were    the type that "        a    jury    would       accept   as   a   comment on        Lowe'   s   failure to testify."     Br. of


Appellant at 12. During the State' s closing argument, the prosecutor made the following remarks:

                         Well, let'   s    look    at   the   reasonableness      of    the State'      s   witnesses.   Their

            testimony in this case is uncontradicted... .



                         So, with regard to the first count, the threat to kill, the State' s proven beyond
            a reasonable doubt that on December 21st, 2012, that Michael Lowe threatened to
            kill Officer Blaylock.                Officer Blaylock' s testimony, which was uncontradicted,
            indicated that he was put in fear that that threat would be carried out. If not
            immediately, because Mr. Lowe was handcuffed in the back of the cruiser, but in
            the future at some other time. In fact, after he had been handcuffed and transported




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No. 45199 -9 -II



          to the hospital, Mr. Lowe                was —again, uncontradicted —            took on a fighting stance
          and tried to assault Officer Dickinson.


Report of Proceedings ( RP) at 93, 96 -97. Lowe did not object at trial.

          The prosecutor' s comments were not improper because the prosecutor did not reference or

suggest who would           be    able      to   contradict   the   evidence.    Further, although Lowe argues that the


prosecutor " directly referred to or implied that Lowe was the only person who could rebut the

State'   s case,"   there is no indication that Lowe is the only person who could rebut the evidence.2
Br. of Appellant at 12. Because we hold there was no misconduct, Lowe' s claim fails.

C.        INEFFECTIVE ASSISTANCE OF COUNSEL


          Lowe alleges that he received ineffective assistance of counsel because defense counsel


failed to object to the prosecutor' s closing arguments. We review ineffective assistance of counsel

claims     de   novo.    State        v.   Sutherby,    165 Wn. 2d 870, 883, 204 P. 3d 916 ( 2009).               A defendant


                ineffective      assistance        of   counsel     has the burden to          establish   that ( 1)   counsel' s
claiming


performance was deficient and ( 2) 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).                                  Failure to establish


either prong is fatal to an ineffective assistance of counsel claim. Strickland, 466 U.S. at 700.

           Counsel' s performance is deficient if it falls below an objective standard of reasonableness.


Stenson, 132 Wn.2d               at   705.       Our scrutiny of counsel' s performance is highly deferential; we

strongly    presume reasonableness.                  State   v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011).            To




2
    We   note   that the trial   court      instructed the jury     as   follows: " The   defendant is not required to testify.
You may not use the fact that the defendant has not testified to infer guilt or to prejudice him in
any way." RP at 86. We presume that the jury follows the court' s instructions. Anderson, 153
Wn. App. at 428.


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No. 45199 -9 -II



rebut this presumption, a defendant bears the burden of establishing the absence of any legitimate

trial tactic explaining counsel' s performance. Grier, 171 Wn.2d at 33.

        Lowe has not demonstrated that defense counsel' s performance was deficient. Defense


counsel was not deficient by not objecting during the State' s closing arguments because the

prosecutor' s comments during closing arguments were not improper. Sells, 166 Wn. App. at 930.

Because Lowe has not shown that defense counsel' s performance was deficient, he has not met his

burden to show that he received ineffective assistance of counsel. Lowe was not denied effective


assistance of counsel when his trial counsel did not object during the State' s closing arguments.

Accordingly, his claim of ineffective assistance of counsel fails.

        We affirm Lowe' s conviction.


        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:




                     Mewtick, J.




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