                                                                                                                  FILED
                                                                                                           COURT OF APPEALS
                                                                                                               DIVISION II

                                                                                                          2015 JAN 27 ) M 8: 149




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II


 STATE OF WASHINGTON,                                                                  No. 44331- 7- 11


                                         Respondent,                            UNPUBLISHED OPINION


           v.




 ALAN J. OLSON,


                                            Appellant.



          BJORGEN, A.C. J. —          The State charged Alan J. Olson with second degree assault by

strangulation of Cathy Everett, the mother of Olson' s child. A jury convicted Olson of fourth

degree assault as a lesser degree offense. Olson appeals, arguing that ( 1) the prosecutor deprived

him of a fair trial by (a) improperly cross -examining him concerning trial strategy and privileged

communications with defense counsel and (b) arguing in closing that the State did not need to

disprove Olson'                        defense;
                       s claim of self -            ( 2)   the investigating officer gave improper opinion

testimony       on   Olson'   s guilt and   the credibility   of a   defense   witness; (   3) the trial court erred by

failing   to investigate      possible   juror   misconduct when       the   jury   asked   to have   a   911 recording
No. 44331 -7 -I1



replayed prior   to deliberations; ( 4)    the trial court erred by replaying the 911 recording without

considering the    risk of unfair prejudice; (   5) his attorney' s failure to object to these errors,

improper evidence, and misconduct denied him the effective assistance of counsel; and ( 6) the


sentencing court erred in imposing on Olson various costs and fees applicable to a felony assault

conviction because the jury only convicted him of the lesser degree misdemeanor. Concluding

that Olson received ineffective assistance of counsel, we reverse and remand.


                                                     FACTS


         Everett called 911 from a neighbor' s home after she and Olson had an altercation at their

apartment. Kelso police officer David Shelton responded and arrested Olson later the same


evening. The State initially charged Olson with two counts of second degree assault by

strangulation based on the incident, but moved to dismiss one count on the first day of trial.

         Shelton testified at trial that Everett was " visibly traumatized" and that she had " a pretty

severe   bump   on   her forehead[,] ...   an abrasion on    the side of her neck, [ and]   an abrasion on her


face."   Verbatim Report      of   Proceedings ( VRP)   at   110, 112. Shelton testified also that Olson,


whose right arm was in a cast, claimed that Everett had attacked him and that he did not call the

police   because " the last time he did that, he    got arrested."   VRP at 380.


         Everett testified on Olson' s behalf at trial stating that she initiated the physical altercation

by shoving Olson and that he only put his hands on her " to prevent [Everett] from hitting him."

VRP at 248. Everett denied that Olson had hit, kicked, or choked her during the incident.

Everett explained that she falsely accused Olson of assaulting her because he had left with their

child and she " was willing to do anything or say anything to make him look like the bad person"

so that she could get custody of the child. VRP at 249 -50. Olson testified to the altercation

similarly in most respects.



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No. 44331 -7 -II



              The court instructed the jury on fourth degree assault as a lesser degree offense. The

court also gave the standard jury instruction on self -defense, informing the jury that

               t]he State has the burden of proving beyond a reasonable doubt that the force used
              by the Defendant was not lawful. If you find that the State has not proved the
              absence of this defense beyond a reasonable doubt, it will be your duty to return a
              verdict of not guilty.


VRP      at   415 -16;   see   11 WASHINGTON PRACTICE: PATTERN JURY INSTRUCTIONS CRIMINAL § 17. 02


 3d    ed.) (   2008). ,


              During closing argument, the prosecutor asserted that, if the jury found that Olson had

actually strangled Everett, it need not consider self defense
                                                      -       at all because he denied strangling

her:


              Number 1,     go   back,      ask yourself      did he   strangle   her? If twelve of you agree beyond
              a reasonable     doubt, ...        you' re convinced and you never have to get to self -defense
              because never did he indicate he strangled her. If the State has proven that he did
              strangle   her, stop. Write in guilty              and   be done.... [    M] erely saying self —
                                                                                                             defense
              doesn' t   make    it   so,   okay? It is the State' s burden to prove that force is not lawful.
              Well, we have raised that burden because self -defense is everybody' s right, okay?
              But merely       going [ "] self-defense,               defense[
                                                                 self -           "] doesn' t   make   it   so.   Is what he
              says reasonable?          The Defendant is not required to put on any evidence, and you
              couldn' t use it against him if he didn' t.


VRP at 437 -38. After pointing to alleged deficiencies in the evidence supporting Olson' s self -

defense claim and inviting the jury to infer guilt from Olson' s late disclosure of and failure to

present certain evidence, the prosecutor reiterated this point:


                         The State has a duty to show that that force wasn' t lawful. But if you don' t
              believe the Defendant'             s version,  State doesn' t have to disprove it, okay? ... If you
              don' t believe     what       he   says              defense, does the State have to ... disprove
                                                        about self -


              something     you       don' t believe?      No.

VRP      at    442. The     prosecutor summed              up her        defense argument
                                                                    self -                       by   stating: " So, as I said,




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No. 44331- 7- 11



Question Number 1, do              you    believe there'       s strangulation?        If the answer is yes, write


guilty ...[    a] nd you' re      done."       VRP at 443 -44.


         Olson did not object to these arguments. In his closing remarks, however, defense

counsel argued to the jury that the prosecutor' s argument undermined the presumption of

innocence:


                        The State wants to mention the lack of presentation from the Defense, the
             lack of preparedness to some degree. Well, that' s shifting the burden. The burden
             isn' t on the Defense.            We' re   not obligated      to    put on a single witness.     We' re not
             obligated    to cross -examine a                We' re not obligated to do a closing
                                                        single person.


             statement or even participate in jury selection. The burden is on the State.

VRP at 447.


             In rebuttal, the prosecutor again emphasized that the jury only need consider the issue of

self -defense if it believed Olson' s testimony:

             The State does have          a   burden    of   proving   a case    beyond   a reasonable   doubt....   And

             the State    is   required   to   prove    that   an assault   is   not   done with   unlawful   force. And

             the State    put on    that      evidence.      And then the Defense put on their evidence, and

             only if you believe their evidence, do you have a question that the State has to
             disprove lawful force[.]            Because the State' s evidence is there was no lawful force
             used....     So the question you have to ask yourself is do you believe the Defendant?


VRP     at   464 -65. The prosecutor returned to this theme again at the end of her remarks.


             The jury found Olson guilty of fourth degree assault. The court imposed a sentence of

364 days' confinement, with 350 days suspended, and two years of community supervision,

along   with $2, 281.          69 in legal financial         obligations.   Olson appeals.


                                                                ANALYSIS


             Olson bases his ineffective assistance of counsel claim on his attorney' s failure to object

to certain evidence and portions of the State' s closing argument. Therefore, we first consider

Olson' s claims of prosecutorial misconduct and then turn to his ineffective assistance claim. We



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No. 44331 -7 -II



conclude that the prosecutor misstated the law concerning self -defense in her closing argument.

However, because a curative instruction could have remedied the harm, the misconduct does not

warrant reversal. We conclude also that defense counsel' s failure to object to this misconduct


constituted ineffective assistance of counsel, warranting reversal and remand for a new trial.

                                       I. PROSECUTORIAL MISCONDUCT


         Olson contends that the prosecutor committed misconduct that deprived him of a fair trial

and that this misconduct merits reversal despite defense counsel' s failure to timely object.

Specifically, Olson argues that the prosecutor undermined the presumption of innocence in two

ways: during her cross -examination of Olson by questioning him and making comments about

his failure to present certain evidence and in closing argument by contending that the State did

not need to disprove Olson' s self -defense theory if the jury did not believe Olson' s version of

events. 1 We conclude that this aspect of closing argument constituted misconduct and do not

reach the other instances of claimed misconduct.


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

prosecutor' s conduct was both improper and prejudicial " in the context of the record and all of


the   circumstances of   the trial."   In   re   Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012). To


establish prejudice, the defendant must " show a substantial likelihood that the misconduct

affected   the   jury verdict." Glasmann, 175 Wn.2d at 704. A defendant who failed to object at

trial will be deemed to have waived a prosecutorial misconduct claim unless the defendant




1 Olson also argues that the prosecutor improperly sought to undermine his credibility and
infringed on his right to counsel by cross -examining him concerning privileged communications
with defense counsel, Olson' s decision to testify, and other matters of trial strategy. Because we
reverse on other grounds, we do not reach these claims.

                                                           5
No. 44331- 7- 11



establishes "      that the      misconduct           was so     flagrant      and   ill[- ]intentioned that an instruction would


not   have   cured        the   prejudice."          Glasmann, 175 Wn.2d at 704.

A.        The State Misstated the Law by Arguing That the Jury Need Only Consider Self -Defense
          If It Believed Olson


          The State contends that applicable law is consistent with the' prosecutor' s argument that


the jury did not have to consider the issue of self -defense if it did not believe Olson' s testimony,

pointing out that " a defendant is only entitled to a self -defense instruction [ if he or she] offer[ s]

credible evidence            tending      to                  defense."
                                                   prove self -                    Br. of Resp' t at 17 ( citing State v. Dyson, 90

Wn.    App. 433, 438,            952 P. 2d 1097 ( 1997)).               We disagree.


             As a quasi-judicial officer representing the people of the State, a prosecutor has a duty to

act   impartially         in the interest only          of justice."      State v. Warren, 165 Wn.2d 17, 27, 195 P. 3d 940

 2008).      A prosecutor commits misconduct by misstating the law. State v. Fleming, 83 Wn. App.

209, 213, 921 P. 2d 1076 ( 1996).                       Such misconduct poses a serious risk of prejudice because a


  prosecutor' s argument                 is    likely   to have      significant persuasive      force   with   the   jury '    due in part


to "` the    prestige associated with                  the   prosecutor' s office. "'       Glasmann, 175 Wn.2d at 706


 quoting AM. BAR ASS' N STANDARDS                              FOR    CRIMINAL JUSTICE: PROSECUTION & DEFENSE


FUNCTION,          std.   3 - 5. 8,   cmt. at       107 ( 3d   ed.   1993));    accord Warren, 165 Wn.2d at 27 ( holding a

prosecutor' s misstatement of                       the burden of     proof "particularly grievous"         because "[         t]he jury

knows that the            prosecutor          is   an officer of     the State "). Thus, "[     t] he prosecuting attorney

misstating the law of the case to the jury is a serious irregularity having the grave potential to

mislead      the   jury." State v. Davenport, 100 Wn.2d 757, 763, 675 P. 2d 1213 ( 1984).

            The State' s contention that its argument correctly states the law of self -defense misses its

mark because it bears only on whether the court properly gave a self -defense instruction in the




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No. 44331 -7 -II



first place, an issue the parties here do not dispute. In holding that an argument by the State in

another case amounted to prosecutorial misconduct, we explained that


             the prosecutor' s misleading comments suggested that the codefendants must first
             prove self -defense to the jury, and that the State could not disprove the affirmative
             defense. This is not the law in Washington.
                     Whether the defense has presented evidence of self defense
                                                                        -       is a question
             for the trial court to address when deciding whether to instruct the jury on the law
                     defense.
             of self -           [ State   v.    Walden, 131 Wn.2d 469, 473, 932 P. 2d 1237 ( 1997).]
             Once the trial court has found evidence sufficient to require a self -defense
             instruction, that    inquiry,      even   if   erroneous,       has   ended.   Thus, the prosecutor' s

             argument improperly sought to shift the burden of proof to the defense.

State   v.   McCreven, 170 Wn.          App.     444, 471, 284 P. 3d 793 ( 2012), review denied, 176 Wn.2d


1015 ( 2013).


             The Supreme Court fixed the landscape even more clearly in State v. Walden, 131 Wn.2d

469, 473, 932 P. 2d 1237 ( 1997),               holding     that "[ t] o   be entitled to a jury instruction on self -

defense, the defendant          must produce some evidence                  demonstrating        defense,"
                                                                                            self -           but specifying

also that " once the defendant produces some evidence, the burden shifts to the prosecution to

prove    the    absence   of   self defense
                                    -           beyond      a reasonable       doubt." ( Emphasis    added.)   Under


McCreven and consistently with Walden, the prosecutor' s argument that the jury need not

consider the claim of self -defense if it disbelieved Olson' s testimony misstated the law and

improperly undermined             the   presumption of         innocence. Walden, 131 Wn.2d at 473; McCreven,


 170 Wn. App. at 471.

             More importantly, since any compression of the neck intended to obstruct or actually

obstructing       respiration or    blood flow        qualifies as strangulation, see        RCW 9A.04. 110( 26),      the jury

could quite properly have refused to believe Olson' s testimony that he did not strangle Everett

but still have found that he acted in self defense.
                                           -        See Dyson, 90 Wn. App. at 439 -40. Thus, the

prosecutor' s admonishment              to " stop[,    w]rite in guilty and be done" if the jury found that " the

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No. 44331 -7 -II



State has   proven   that he did     strangle   her,"   invited the jury to decide the case on an improper

basis and misstated the law. VRP at 437.


         The Glasmann court, furthermore, held that " it was clearly misconduct for the prosecutor

to inform the jury that acquittal was appropriate only if the jury believed Glasmann, and [ this]

shows   the   prosecutor' s   failure to   prosecute     this case as an   impartial     officer of   the   court."   175


Wn.2d at 714. We see no meaningful distinction between the argument held improper in

Glasmann and the prosecutor' s self defense
                                    -       argument here.


         Because we hold below that the failure to object to this misconduct warrants reversal and


remand, we do not discuss the other claimed instances of prosecutorial misconduct. Before


reaching the issue of ineffective assistance, though, we examine whether this prosecutorial

misconduct itself warrants reversal.


B.       A Curative Instruction Could Have Remedied the Harm from the Prosecutor' s
         Misconduct.


         Olson contends that the prosecutor' s various acts of misconduct require reversal because


they likely affected the verdict. As noted, a defendant who failed to object to misconduct at trial

will be deemed to have waived the claim absent a showing " that the misconduct was so flagrant

and   ill[- ]intentioned that   an   instruction   would not      have   cured   the   prejudice."    Glasmann, 175


Wn.2d at 704.


         We have repeatedly held that a prosecutor commits flagrant and ill-intentioned

misconduct by making burden -shifting arguments in closing. State v. Johnson, 158 Wn. App.

677, 685, 243 P. 3d 936 ( 2010);         State v. Venegas, 155 Wn. App. 507, 525, 228 P. 3d 813 ( 2010).

Although we do not characterize the misstatement of the law here as burden shifting, it shares the

same potential for misleading the jury about the location of the burden of proof.




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No. 44331- 7- 11



          In addition, the Fleming court held that a prosecutor' s arguments constituted flagrant and

ill-intentioned misconduct in part because binding precedent, published prior to Fleming' s trial,

clearly established the impropriety of such arguments. Fleming, 83 Wn. App. at 214. Olson' s

trial occurred in December 2012, two months after our court' s publication of McCreven, which


held                          improper.    170 Wn. App. at 470.
                 arguments2




       similar



          Even if deemed flagrant and ill-intentioned, though, the prosecutor' s misstatement of the


law was curable by an instruction. In State v. Emery, 174 Wn.2d 741, 759, 761, 278 P. 3d 653

 2012),   the prosecutor committed misconduct through a " fill in the blank" argument which the


court held could potentially have confused the jury about its role and the burden of proof.

Nonetheless, the Supreme Court held that the misconduct did not require reversal because

          the   misstatements   here    could   have been    by a proper instruction. If either
                                                               cured


           defendant] had objected at trial, the court could have properly explained the jury' s
          role and reiterated that the State bears the burden of proof and the defendant bears
          no burden.


Emery, 174 Wn.2d at 764; accord Warren, 165 Wn.2d at 27 -28 ( holding that a prosecutor' s

misstatement of the law, undermining the presumption of innocence, was remedied by the trial

court' s " correct and thorough curative instruction ").


          This reasoning applies equally here. A proper curative instruction could have remedied

the harm from the prosecutor' s arguments about self -defense. Thus, under Emery, 174 Wn.2d at

764 and Glasmann, 175 Wn.2d at 704, this misconduct does not merit reversal.




2 The arguments held improper in McCreven were as follows:
           How do I disprove that the Defendant reasonably believed that there was imminent
          danger, when there has been no evidence that the Defendant reasonably believed
          that there was imminent danger? Ladies and gentleman, there is nothing to disprove
          that because there    is   no evidence of   it....       So if there is no evidence of self -defense,
       how is it that they even get to argue it ?"
 170 Wn. App. at 470 ( quoting trial transcript).


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No. 44331 -7 -II



                                     II. INEFFECTIVE ASSISTANCE OF COUNSEL


        Olson contends that his counsel' s failure to timely object to the misconduct discussed

above denied him the effective assistance of counsel guaranteed by the Sixth Amendment of the

United States Constitution. We agree.


        We review claims of ineffective assistance of counsel de novo, as they present mixed

questions of law and fact. State v. A.N.J., 168 Wn.2d 91, 109, 225 P. 3d 956 ( 2010).

        The benchmark for judging any claim of ineffectiveness must be whether counsel' s
        conduct so undermined the proper functioning of the adversarial process that the
        trial cannot be relied on as having produced a just result.

Strickland     v.   Washington, 466 U. S. 668, 686, 104 S. Ct. 205, 80 L. Ed. 2d 674 ( 1984). A


defendant who raises an ineffective assistance claim " bears the burden of showing that ( 1) his

counsel'   s performance        fell below     an objective standard of reasonableness and,             if so, ( 2) that


counsel' s poor work prejudiced             him." A.N.J., 168 Wn.2d at 109.


          With      respect   to the deficient     performance         prong, "[   t]here is a strong presumption that

defense    counsel' s conduct       is   not   deficient," but the defendant rebuts that presumption if "no


conceivable         legitimate tactic    explain[ s]   counsel' s performance."           State v. Reichenbach, 153


Wn.2d 126, 130, 101 P. 3d 80 ( 2004).                To meet the prejudice prong, a defendant must show a

reasonable probability " based on the record developed in the trial court, that the result of the

proceeding      would     have been different but for            counsel' s   deficient   representation."   McFarland,


127 Wn.2d at 337; Strickland, 466 U. S. at 694.


          We can see no legitimate trial strategy in defense counsel' s decision not to object to the

prosecutor' s improper closing argument concerning self -defense. As discussed, the rulings in

McCreven       and    Fleming had        already   signaled     that   such arguments were      improper. Walden, 131


Wn.2d     at   473; McCreven, 170 Wn.              App.   at   471.    Instead of a timely objection and a thorough



                                                                      10
No. 44331- 7- 11



curative instruction from the court clearly stating that the jurors had to consider self defense

regardless of whether they believed Olson' s testimony, the jury heard an apparently self -serving

explanation of the law from defense counsel, an explanation disputed by the prosecutor in

rebuttal.   No   conceivable   legitimate tactic   explains   this   choice:   even if counsel did not wish to


interrupt the State' s closing argument, he could have moved for a mistrial and requested a

curative instruction outside the presence of the jury.

          The remaining question is whether defense counsel' s deficient performance prejudiced

Olson. Olson' s self defense
                     -       claim presented his only realistic chance of acquittal. Evidence was

before the jury from which it could have inferred that Olson acted in self -defense. Had his

attorney timely acted on the knowledge that the prosecutor was repeatedly misstating the law so

as to undermine the State' s burden on that defense, Olson could have obtained a curative

instruction that would have bolstered his self -defense claim. With such an instruction, Olson


would likely have prevented the State from undermining its burden of proof on his only real

defense.


          Olson has established both deficient representation and prejudice. Accordingly, we

reverse his conviction and remand for a new trial.3 State v. Thomas, 109 Wn.2d 222, 232, 743

P. 2d 816 ( 1987).


          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




3 Because we reverse Olson' s conviction on this ground, we do not reach his other claimed
errors.


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No. 44331 -7 -II



2. 06. 040, it is so ordered.




 We concur:




 MAXA, J.




 LE,E, J.




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