    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                             No. 72399-5-1


                     Respondent,                DIVISION ONE

              v.                                 UNPUBLISHED OPINION
                                                                                    CO


HAROLD HOLLAND BAIN, JR.,
                                                                                    CO

                     Appellant.                  FILED: September 28, 2015
                                                                                    *~Q


      Trickey, J. — A jury convicted Harold Bain, Jr. of three counts of first degree

trafficking in stolen property. On appeal, he contends that he was deprived of his right to

receive a fair trial and his right to receive effective assistance of counsel. Finding that

neither right was violated, we affirm.

                                         FACTS

       On the morning of November 12, 2013, a co-owner of the Lynnwood Food Mart

discovered evidence of a break-in: a window was broken, cigarettes were on the floor,

and lottery tickets were missing. Surveillance footage from the store's security cameras
showed a person forcibly enter the store before it was open for business and steal a
number of lottery tickets just before 5:30 a.m. Washington State Lottery officials were

promptly notified of the theft.

       At 5:47 a.m., Bain redeemed some of the stolen tickets at a nearby Circle K gas

station. A surveillance camera captured the transaction.

       At 6:13 a.m., Bain attempted to redeem the remaining stolen tickets at a nearby

AVS Gas and Groceries. The store, however, did not have sufficient cash to redeem all

of the tickets, and so Bain redeemed only some of the tickets. Again, a surveillance

camera captured the transaction.
No. 72399-5-1 / 2


      At approximately 6:30 a.m., Bain redeemed more of the stolen tickets at a nearby

7-Eleven convenience store. After doing so, he purchased coffee and a donut. Again, a

surveillance camera captured the transactions.

      Two days later, on November 14, two Snohomish County sheriff's deputies

contacted Bain, who agreed to answer their questions regarding stolen lottery tickets.

When asked whether he remembered cashing or redeemed lottery tickets in the previous

few days, Bain answered that he did not. Yet, when Bain was shown a still image
captured from one of the surveillance videos, he acknowledged that the person in the
picture was him and that he had, in fact, redeemed lottery tickets in the previous few days.
       When asked how he had acquired the tickets, Bain responded that he had

purchased them from a man in his late 30s who Bain referred to as "Davies."1 Bain stated
that he had purchased the tickets from Davies for "50 cents on the dollar."2 When asked
to explain how the tickets could be sold profitably at such a discounted rate, Bain said
that "he thought that they might have walked out the back door of a mini mart."3 However,
Bain said that he did not know that the tickets were stolen.

       On June 23, 2014, the State charged Bain by amended information with three

counts of first degree trafficking in stolen property under RCW 9A.82.050.4
       Ajury trial was held on July 7 and 8, 2014. Following the close of evidence, the
jury was instructed on both first degree trafficking in stolen property and the lesser



1 2 Report of Proceedings (RP) at 28-29.
2 2 RP at 31.
3 2 RP at 32.
4This provision provides, in pertinent part, for the following: "A person who knowingly initiates,
organizes, plans, finances, directs, manages, or supervises the theft of property for sale to others,
or who knowingly traffics in stolen property, is guilty of trafficking in stolen property in the first
degree." RCW9A.82.050(1).
No. 72399-5-1 / 3


included offense of second degree trafficking in stolen property. The jury returned guilty

verdicts on all three charged counts.

       Bain appeals.

                                        ANALYSIS


Prosecutorial Misconduct Claim


       Bain asserts there were two instances of prosecutorial misconduct during the

State's closing argument, both of which, he argues, constitute reversible error.        Bain

acknowledges that neither instance of alleged misconduct was objected to by counsel.

       The Sixth and Fourteenth Amendments to the United States Constitution, as well

as article I, section 22 of the Washington State Constitution, guarantee a defendant the

fundamental right to a fair trial. Estelle v. Williams. 425 U.S. 501, 503, 96 S. Ct. 1691, 48

L. Ed. 2d 126 (1976); State v. Finch. 137 Wn.2d 792, 843, 975 P.2d 967 (1999).

Prosecutorial misconduct may deprive a defendant of this right. State v. Davenport, 100

Wn.2d 757, 762, 675 P.2d 1213 (1984).

       Prosecutorial misconduct constitutes a ground for reversal if the defendant can

demonstrate that the challenged conduct was both improper and resulted in prejudice.

State v. Monday. 171 Wn.2d 667, 675, 257 P.3d 551 (2011). Because Bain's attorney

did not object to either one of the allegedly improper statements made by the prosecutor

during closing arguments, Bain "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." State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d

653 (2012). Bain therefore has the burden of establishing that "(1) 'no curative instruction

would have obviated any prejudicial effect on the jury' and (2) the misconduct resulted in
No. 72399-5-1/4


prejudice that 'had a substantial likelihood of affecting the jury verdict.'" Emery, 174

Wn.2d at 761 (quoting State v. Thorqerson. 172 Wn.2d 438, 455, 258 P.3d 43 (2011)).

       Reviewing courts "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.       Furthermore, alleged misconduct is reviewed "within the

context of the prosecutor's entire argument, the issues in the case, the evidence

discussed in the argument, and the jury instructions." State v. Dhaliwal, 150 Wn.2d 559,

578, 79 P.3d 432 (2003).

       First, Bain asserts that "the prosecutor misstated the law as it pertained to the

knowledge element under RCW 9A.82.050."5 Specifically, Bain takes issue with the

following remarks:

       Ifa person has information that would lead a reasonable person in the same
       situation to believe that a fact or circumstance exists, the jury is permitted,
       but not required to find that she or he acted with knowledge of that
       circumstance. This is called a permissible inference. A reasonable person,
       permissible inference. Ladies and gentlemen, there's no evidence before
       you that the Defendant suffers from some mental defect or is otherwise not
       a person you should hold up to the normal, average, reasonable person
        inference. I think in this case to do that would not be to employ the law as
       you have been charged to do so as jurors. I do believe that the evidence
       shows that a reasonable person, even if Mr. Bain would not have uttered "I
       think they moved out the back of a mini mart," if he just never said that
       phrase, even though actually admitted that to the detective, just given the
       circumstances that Mr. Davies, some nondescript individual in the very early
       morning hours, the circumstances that we'll discuss here in a little bit more
       detail, that any person, any reasonable person confronted with those
        circumstances would have been reasonably aware that he or she acted with
        knowledge in later transferring those of those underlying circumstances,
        that they were moved out the back door, that they were either wrongfully
        obtained or passed over by someone exerting unauthorized control of
        them.t6!




5 Br. of Appellant at 7.
6 2 RP at 92.
No. 72399-5-1 / 5


"In other words," Bain argues, "the prosecutor informed the jury that, unless itfound Bain

suffered a mental defect or was in some other way not an ordinary individual, the law

required the jury to infer Bain was a reasonable person who acted knowingly."7

       Washington's culpability statute is RCW 9A.08.010.       It defines "knowledge" as

follows:

       (b) KNOWLEDGE. A person knows or acts knowingly or with knowledge
       when:
               (i) he or she is aware of a fact, facts, or circumstances or result
       described by a statute defining an offense; or
               (ii) he or she has information which would lead a reasonable person
       in the same situation to believe that facts exist which facts are described by
       a statute defining an offense.

RCW 9A.08.010(1)(b)(i), (ii). Our Supreme Court has interpreted subsection (b)(ii) of the

statute to mean that a jury is permitted—but not compelled—to find that a defendant acted

with knowledge if it finds that an ordinary person would have had knowledge under the

circumstances. State v. Shipp, 93 Wn.2d 510, 516, 610 P.2d 1322 (1980).            In other

words, the court has "held that there cannot be a mandatory presumption of knowledge

based upon one's receipt of certain information because it would not allow a jury to take

into account the subjective intelligence or mental condition of the defendant." State v.

Johnson, 119 Wn.2d 167, 174, 829 P.2d 1082 (1992).

       Inelegant though they were, the prosecutor's remarks concerning the element of

knowledge do not constitute reversible error. The prosecutor may have confused the jury,

and may have even mischaracterized the applicable law. However, had Bain's counsel

timely objected and requested a curative instruction, the trial judge would have only




7 Br. of Appellant at 8 (emphasis omitted).
No. 72399-5-1 / 6


needed to remind the jury to follow jury instruction 15.8 Such a curative instruction would

have obviated any possible prejudice where the prosecutor did not elsewhere suggest

that the jury was obligated, rather than merely permitted, to infer knowledge. Cf. State v.

Allen. 182 Wn.2d 364, 376, 341 P.3d 268 (2015) (where the prosecutor repeatedly

misstated the law with regard to "knowledge" and accomplice liability, the court found a

substantial likelihood that the misconduct had prejudiced the defendant).

       Second, Bain asserts that the prosecutor improperly made use of the prestige of

his public office in an effort to influence the jury. Bain directs our attention to the following

portion of the trial transcript:

       You've listened to all the facts and now you, as jurors, have to do your jobs.
       All that I would counsel you as, as I counseled you at the beginning, please
       be guided by those instructions. ... I would counsel you and request you,
       based upon the evidence, to return verdicts of guilty in this matter to the
       charges as charged, trafficking in the first degree.[9]

According to Bain, "[b]y 'counseling' the jury to reach a guilty verdict, the prosecutor took

on the role of a formal advisor to the jury, unfairly aligning the jurors to his view of the

case."10 We disagree. In this context, the prosecutor's use of several variants of the verb

"counsel" created no special relationship between the prosecutor and the jury. No

appellate relief is warranted.




8 In pertinent part, jury Instruction 15 reads: "If a person has information that would lead a
reasonable person in the same situation to believe that a fact or circumstance exists, the jury is
permitted butnot required to find that he or she acted with knowledge ofthat fact or circumstance."
Clerk's Papers (CP) at 249. This instruction comes from Washington Pattern Jury Instructions:
Criminal 10.02, which was upheld as constitutional by our Supreme Court in State v. Leech, 114
Wn.2d 700, 709-10, 790 P.2d 160 (1990).
9 2 RP at 103-04.
10 Br. of Appellant at 14.
No. 72399-5-1 / 7


Ineffective Assistance of Counsel Claim

       Bain next claims that his counsel rendered ineffective assistance because counsel

did not object to either one of the allegedly improper remarks made by the prosecutor

during the State's closing argument. We disagree.

       To establish a claim of ineffective assistance of counsel, a defendant must

demonstrate that counsel's performance was deficient and that the deficient performance

prejudiced the defense. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).

Deficient performance is that which falls "below an objective standard of reasonableness

based on consideration of all the circumstances." State v. McFarland. 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). To establish prejudice, a defendant must show by "a

reasonable probability that, but for counsel's unprofessional errors, the outcome of the

proceeding would have been different." Nichols, 161 Wn.2d at 8. If a party fails to satisfy

either the deficiency or the prejudice prong, a reviewing court need not consider the other.

State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).

       Bain cannot establish a reasonable likelihood that the outcome would have been

different had counsel objected to either instance of alleged misconduct. As explained,

only the remarks made in reference to the element of knowledge appear to be irregular.

Yet, there is no evidence in the record that the jury was influenced by these remarks.

        Nevertheless, Bain argues that the facts did "not overwhelmingly establish Bain

did in fact subjectively know the tickets were stolen," noting that "[tjhere was only

circumstantial evidence that Bain knew the tickets were stolen."11 However, the jury was



11 Br. of Appellant at 11.
No. 72399-5-1 / 8


instructed that "[t]he law does not distinguish between direct and circumstantial evidence

in terms of their weight or value in finding the facts in this case. One is not necessarily

more or less valuable than the other."12

       In effect, Bain argues that he was prejudiced because there is a possibility that the

outcome would have been different had counsel objected. But mere possibility is not the

applicable standard. Rather, Bain must show a reasonable probability that the outcome

would have been different. This he has not done. Consequently, he is not entitled to the

relief he requests.13

       Affirmed.




                                                           |f\J<C! . ^

WE CONCUR:




12 CP at 237 (jury instruction 3).
13 In a statement of additional grounds, Bain provides four additional grounds for review. In each,
he asserts that his attorney did not heed his request that she object to certain testimony. While
Bain does not identify the nature of his claims or his desired relief, it appears that his claims are
of ineffective assistance of counsel. In order to prevail on a claim that counsel's failure to object
to witness testimony constituted ineffective assistance, Bain must establish that (1) no legitimate
strategic or tactical reasons supported the challenged conduct, (2) an objection to the evidence
would likely have been sustained, and (3) the jury verdict would have been different had the
evidence not been admitted. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998).
Bain does not attempt to establish the absence of legitimate strategic or tactical reasons for the
challenged conduct. No relief is warranted.
                                                 8
