      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON                      )                                         Cora
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                                         )       DIVISION ONE                             ??7,4

                      Respondent,        )                                                rrl

                                         )       No. 77930-3-1
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                 v.                      )                                                3> -t,
                                         )       UNPUBLISHED OPINION               xis       ni
                                                                                             21.0
ROBERT LEE PRY, ROBERT                   )                                                Zr-
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LAVALLE DAVIS, and ARNOLD                )                                         CJ1    --I co
                                                                                          C.—
MAFNAS CRUZ,                                                                       CO     2C
                                         )
                                         )       FILED: November 13,2018
                      Appellants.        )
                                         )

       DWYER,J. —This opinion resolves the consolidated appeals of Robert Lee

Pry, Robert Lavalle Davis, and Arnold Mafnas Cruz, arising out of their joint trial

in connection with the 2015 home invasion robbery and murder of Robert Archie

Hood and resultant attempts to dispose of Hood's body.

       Pry was charged with robbery, murder, and kidnapping, all in the first

degree, with all crimes aggravated by the victim's particular vulnerability, the

deliberate cruelty inflicted on the victim, and Pry's egregious lack of remorse.

Pry was also charged with identity theft and possession of stolen property, both

in the second degree, and witness tampering. All of these charges, save the

witness tampering charge, were based on his central role in the commission of

the home invasion and murder; the witness tampering charge was based on his

conduct while in custody. Pry was found guilty as charged.
No. 77930-3-1/2


       On appeal, through counsel, Pry assigns error to the trial court's denial of

his motion for substitution of counsel, to the trial court's handling of an allegation

of juror misconduct, to the prosecutor's statements in closing argument that, Pry

claims, implied that he had tailored his testimony, and to that which Pry asserts

were improper appeals to the jury's passion in the State's opening statement and

closing argument. Pro se, Pry sets forth additional assignments of error in a

statement of additional grounds for review. None of these claims of error warrant

appellate relief.

       Davis was charged with murder and robbery, both in the first degree, and

both aggravated by the victim's particular vulnerability and Davis's multiple

current offenses. Davis was acquitted on these charges. He was also charged

with identity theft in the second degree, aggravated by his multiple current

offenses, based on his asserted role in facilitating the home invasion and in later

efforts to access Hood's bank accounts. He was found guilty on this charge. On'

appeal, through counsel, Davis claims that he was denied a fair trial due to:(1)

prosecutorial misconduct,(2) ineffective assistance of his counsel in addressing

this claimed misconduct; and (3) ineffective assistance of counsel in cross-

examining a witness. Moreover, Davis avers, if none of these claims of error

alone warrants reversal, their cumulative effect must. Pro se, Davis sets forth

several assignments of error in a statement of additional grounds for review.

None of the claims of error made on Davis's behalf entitle him to appellate relief.

       Cruz was charged with rendering criminal assistance in the first degree, a

class B felony, aggravated by his egregious lack of remorse and by the crime's



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No. 77930-3-1/3


impact on others. He was also charged with concealment of a deceased body, a

gross misdemeanor. Cruz was found guilty as charged, although the jury

declined to find egregious lack of remorse as an aggravating factor. On appeal,

Cruz avers that the information charging him with the felony was constitutionally

deficient and that the exceptional sentence imposed on him was not authorized

by statute. Pro se, Cruz submits a statement of additional grounds for review.

We hold that the information charging Cruz with rendering criminal assistance in

the first degree was constitutionally deficient. Consequently, we reverse this

conviction with direction that the charge be dismissed by the trial court without

prejudice. His misdemeanor conviction is undisturbed by this resolution. We

remand Cruz's case to the trial court for resentencing.

       For clarity, we will separately address each defendant's assignments of

error and the facts pertinent thereto.

                                            I

                                      Pry Appeal

                                           A

       On December 17,2015, Robert Archie Hood was robbed, severely

beaten, and killed in his home near Bremerton. Pry's girlfriend, Ocean Wilson,

and Pry's sister, Shawna Dudley-Pry, were riding in the car transporting Pry and

another man, Joshua Rodgers-Jones, to rob Hood's house.

       Wilson testified that, later, Pry told her:

       Mhat...they went up to the man's house,that he knocked on the
       door and told the man that he was God. And that they had tied the
       old man up and hit him and asked him if he had raped kids in the
       past. And I guess the old man, Mr. Hood, had confirmed that that


                                          -3-
No. 77930-3-1/4


      was a long time ago. [Pry]told me that they left the man in the
      house tied up, and he was snoring on the floor.

      That night, Wilson, Pry and Dudley-Pry stayed in a motel room where they

attempted to access Hood's bank accounts via telephone calls and the Internet.

Pry and the others left the motel and returned to Bremerton the next day.

       On December 21, Hood's friend Candyce Gratton went to his house,

noticed that he was gone and that the house was in disarray, and alerted the

police. On December 22, Pry was taken into custody. A subsequent police

search of the duplex in which Pry had been living revealed many of Hood's

personal effects and various documents containing his financial information.

Hood's body was recovered on December 30.

       The State brought charges against Pry, Davis, Cruz, and Rodgers-Jones

and joined their cases for trial. The trial court later severed Rodgers-Jones's

case for trial. The consolidated trial consumed 44 days.

       On the first day of jury selection, a day on which 200 jurors had been

summoned to court, Pry requested a new appointed attorney. His stated basis

was that he did not "feel ... adequately represented" and that his attorney was

trying to get him "to take a [plea] deal [rather] than preparing for my defense."

Pry's attorney then stated that he had no issue with continuing to represent Pry.

The trial court denied the request. Pry did not make any request of this nature at

any other time during the trial.

       In opening statement, the prosecutor opined that Hood "probably never

envisioned" the events leading to his death, a remark to which no defense

counsel objected.


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No. 77930-3-1/5


       Twice during trial, attorneys for Pry and for Davis brought to the court's

attention a juror who appeared to them to have been asleep during trial. When

Davis's attorney first called the judge's attention to the juror in question, the judge

stated that the juror did not appear to him to have been asleep during the

proceedings. Later, attorneys for both Pry and Davis again raised the issue. The

trial court, after hearing observations and argument from counsel and reciting its

own observations of the juror's behavior, made a factual finding that the juror had

not been sleeping. Pry and Davis subsequently declined the judge's offer of

further inquiry. Neither raised the issue again.

       During the State's cross-examination of Pry, in response to a question

about his memory of specific dates in December 2015, Pry stated,"[M]y life is on

the line and I've had plenty of time to think about everything that's happened

thoroughly." In closing argument, the prosecutor referenced this remark in order

to cast doubt on Pry's credibility as a witness and to imply that Pry's having "had

plenty of time to think about everything that's happened" meant that he had used

that time to conform or tailor his testimony to the evidence produced at trial.

       The prosecutor also noted, in closing argument, that the evidence did not

show the exact course of events that took place when Pry and Rodgers-Jones

were alone with Hood, but that the evidence established more than sufficient

facts about Hood's death to prove the State's case. The prosecutor also noted

that the day on which the closing argument was delivered would have been

Hood's birthday, and asked the jury to "celebrate" Hood by carefully considering

the evidence. An objection was interposed to the use of the word "celebrate."



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No. 77930-3-1/6


This objection was sustained and no defendant requested any further relief. No

objections were interposed to the other remarks.

       The jury found Pry guilty of murder, robbery, and kidnapping, all in the first

degree. It further found that all of the offenses were aggravated by the victim's

particular vulnerability, the deliberate cruelty inflicted on the victim, and Pry's lack

of remorse. Pry's convictions for murder and robbery in the first degree were

subsequently merged into a single felony murder conviction. The jury also found

Pry guilty of identity theft In the second degree, possession of stolen property in

the second degree, and witness tampering. The court imposed an exceptional

sentence of 958 months of imprisonment.



       Pry first contends that the trial court's denial of his request for substitution

of appointed counsel, made on the first day of jury selection, constituted an

abuse of its discretion. We disagree.

       While the Sixth Amendment to the United States Constitution guarantees

that, in "all criminal prosecutions, the accused shall ... have the assistance of

counsel for his defense," it does not give an indigent defendant an absolute right

to choose any particular advocate. U.S. CONST. amend VI; State v. Stenson, 132

Wn.2d 668, 733, 940 P.2d 1239(1997).1 Whether an indigent defendant's

dissatisfaction with his court-appointed counsel justifies the appointment of new




         The analysis Is the same under the state constitution. State v. DeWeese 117 Wn.2d
369, 375-76, 816 P.2d 1(1991).


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No. 77930-3-1/7


counsel is a matter reserved to the trial court's discretion.2 Stenson, 132 Wn.2d

at 733. The timeliness of a request for substitution of counsel affects the trial

court's exercise of discretion to grant or deny that request. State v. Garcia 92

Wn.2d 647,655-56,600 P.2d 1010(1979).

              A criminal defendant who is dissatisfied with appointed
       counsel must show good cause to warrant substitution of counsel,
       such as a conflict of interest, an irreconcilable conflict, or a
       complete breakdown in communication between the attorney and
       the defendant. Smith v. Lockhart, 923 F.2d 1314, 1320(8th Cir.
       1991). Attorney-client conflicts justify the grant of a substitution
       motion only when counsel and defendant are so at odds as to
       prevent presentation of an adequate defense. E.g., State v. Lopez,
       79 Wn. App. 755, 766,904 P.2d 1179(1995)(citing United States
       v. Morrison, 946 F.2d 484,498 (7th Cir. 1991)). The general loss of
       confidence or trust alone is not sufficient to substitute new counsel.
       Johnston v. Florida, 497 So.2d 863(Fla. 1986).

              Factors to be considered in a decision to grant or deny a
       motion to substitute counsel are(1)the reasons given for the
       dissatisfaction,(2)the court's own evaluation of counsel, and (3)
       the effect of any substitution upon the scheduled proceedings.
       State v. Stark, 48 Wn. App. 245, 253,738 P.2d 684(1987).

Stenson, 132 Wn.2d at 734.

       The analogous situation of a request to proceed pro se provides the

rule applied in this setting, as regards the timeliness of the request:

       (a) if made well before the trial or hearing and unaccompanied by a
       motion for continuance, the right of self-representation exists as a
       matter of law;(b) if made as the trial or hearing is about to
       commence, or shortly before, the existence of the right depends on
       the facts of the particular case with a measure of discretion
       reposing in the trial court in the matter; and (c) if made during the
       trial or hearing, the right to proceed pro se rests largely in the
       informed discretion of the trial court.



       2 A trial court abuses its discretion when its decision adopts a view no reasonable person
would take or Is based on untenable grounds or untenable reasons. State v. Sisouvanh, 175
Wn.2d 607,623, 290 P.3d 942(2012).


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No. 77930-3-1/8


State v. Fritz 21 Wn. App. 354, 361, 585 P.2d 173(1978).

      Our courts have been alert to the risk of defendants using requests for

substitute counsel to hinder or delay proceedings. State v. DeWeese, 117

Wn.2d 369, 379, 816 P.2d 1 (1991). "In the absence of substantial reasons a

late request should generally be denied, especially if the granting of such a

request may result in delay of the trial." Garcia, 92 Wn.2d at 656 (analyzing a

late request to proceed pro se). Indeed, the basic rule is plainly stated:"A

defendant may not manipulate the right to counsel for the purpose of delaying

and disrupting trial." DeWeese, 117 Wn.2d at 379.

      "[A] trial court conducts adequate inquiry by allowing the defendant and

counsel to express their concerns fully"; this process need not be a formal

inquiry. State v. Schaller, 143 Wn. App. 258, 271, 177 P.3d 1139(2007). The

defendant must state the reasons for his dissatisfaction with counsel and the

record on appeal should show that the trial court had before it the information

necessary to assess the merits of the defendant's request. State v. Varga, 151

Wn.2d 179, 200-01,86 P.3d 139(2004).

       This trial involved three defendants. Sixty-eight witnesses were called to

testify. Two hundred jurors were summoned on the first day of voir dire.

Scheduling was already a major concern for witnesses,jurors, and counsel. It

was in this context that Pry made the request for substitution of counsel without

providing any substantial reasons therefor. Granting Pry's request would have

forced either a continuance of the proceedings or a severance of Pry's case from

the other defendants' cases.



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No. 77930-3-1/9


       And a severance was no small matter. The trial judge had already ruled

on severance requests from the various defendants. It had granted Rodgers-

Jones's request and denied the others. The trial judge had good reason to take

care that Pry's request for new counsel did not become a disguised attempt to

obtain the severance that the court had previously denied him.

       Further, Pry's vague statements to the trial court contained no contention

of a conflict of interest, an irreconcilable conflict, or a complete breakdown in

communication between Pry and his counsel. At no other point in the months-

long period before trial, nor during the remaining weeks of trial, did Pry state that

there was any issue between himself and his attorney. Indeed, Pry's counsel

had made 16 separate appearances on Pry's behalf before the trial judge prior to

Pry making his request. Based on the trial court's observations of counsel's

advocacy for Pry during each appearance before the trial court, the court acted

within its discretion in accepting his assertion that he had no concerns about

moving forward as Pry's attorney.

       Pry claims that the trial court did not make a sufficient inquiry into his

request. In fact, the judge asked Pry why he was dissatisfied and asked his

counsel if he had any concerns. As noted above, the record fails to show any

inadequacy on the part of Pry's counsel and Pry described only a general

dissatisfaction with his representation. The inquiry was sufficient to fully inform

the judge, who was plainly aware of a continuance's impact"upon the scheduled

proceedings." Stenson, 132 Wn.2d at 734. The trial court did not abuse its




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No. 77930-3-1/10


discretion in denying Pry's late request for new appointed counsel. Fritz, 21 Wn.

App. at 361. There was no error.

                                           C

       Pry next avers that a juror may have been sleeping during the trial, and

that the trial court abused its discretion by not properly investigating this juror's

alleged misconduct. To the contrary, the record does not show that the juror was

sleeping, and no defendant accepted the trial court's offer for further inquiry when

the issue was addressed at trial. Thus, the trial court did not abuse its discretion.

There was no error.

       ROW 2.36.110 and CrR 6.5 impose on the trial court a continuous

obligation to investigate allegations of juror unfitness and to excuse jurors who

are found to be unfit. State v. Elmore, 155 Wn.2d 758, 773, 123 P.3d 72(2005).

The party alleging juror misconduct bears the burden of showing that such

misconduct occurred. State v. Revnoldson, 168 Wn.App. 543, 547, 277 P.3d

700(2012). ROW 2.36.110 sets forth the circumstances under which a trial court

must dismiss a juror:

              It shall be the duty of a judge to excuse from further jury
       service any juror, who in the opinion of the judge, has manifested
       unfitness as a juror by reason of bias, prejudice, indifference,
       Inattention or any physical or mental defect or by reason of conduct
       or practices incompatible with proper and efficient jury service.

       For dismissal to be proper, the record must establish that a juror engaged

in "misconduct." State v. Jorden, 103 Wn.App. 221, 229, 11 P.3d 866(2000). In

resolving an allegation of juror misconduct, the trial court may act as both an

observer and a decision-maker, and its factual determinations are given



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No. 77930-3-1/11


deference on appeal. Elmore, 155 Wn.2d at 768-69; Jorden 103 Wn. App. at

229. The trial court's determination is reviewed for an abuse of discretion. There

is no mandatory format for a trial court to utilize when determining whether a juror

engaged in misconduct. The trial court has discretion to hear and resolve the

issue in any manner that avoids tainting the juror and that works best for the

proceedings. Jorden, 103 Wn. App. at 229.

        It is not always necessary for a trial judge to engage in further inquiry in

response to an allegation of a sleeping juror because the judge may be

personally aware of whether the juror was(or was not) sleeping. In Jorden, the

judge observed the allegedly sleeping juror during trial and found that"she was

yawning, dozing, and sitting with her eyes closed." 103 Wn. App. at 226. The

juror was dismissed after the judge concluded that she was "'the most inattentive

juror[the judge had]seen in six and a half years of doing trials.'" Jorden, 103

Wn.App. at 226.

        In this case, the trial court was confronted, twice, with a defense

contention that the challenged juror had been sleeping. The prosecutor

disagreed. In the first instance, the trial court resolved the matter with the judge's

affirmative statement that the juror had not been asleep during the proceedings.3

Over a month later, when the issue was brought to the trial court's attention

during closing arguments, the prosecutor stated:


        3 The Issue  was brought to the court's attention during a break in the proceedings when
Davis's lawyer stated that the juror looks like he might be dozing a little bit? The judge observed
that the juror was attentive but may have had a headache; the prosecutor corroborated this
account, stating that the juror had manifested frustration with the pace of the proceedings. The
judge did not accept that the Juror had been sleeping, remarking that stilt Is Just when we were on
the break there he had his eyes closed?


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No. 77930-3-1/12


         I'm watching him keep notes. He doesn't look at the speaker in the
         eye the entire time, but he's taking notes throughout [the defense]
         argument[s].... He's not sleeping.

To this the trial court added its own observation:

         I've watched him because he does have that appearance on
         occasion. And so I paid special attention to him during those
         occasions. I haven't noticed anything where he looks like he's
         actually asleep.

         Pry and Davis both declined the trial court's offer for further inquiry into the

matter. Cruz did not express any opinion on the matter. Hence, the record is

that the trial court investigated the allegation and made a finding of fact—that the

juror was not "actually asleep." Further, in declining the trial court's offer to make

further inquiry of the matter, the defendants waived any claim that the trial court's

process for resolving the Issue was Insufficient. The trial court did not abuse its

discretion in its disposition of the juror misconduct allegation. There was no

error.

                                            0

         Pry next avers that the prosecutor, in her closing argument, improperly

accused him of tailoring his testimony based only on his presence in the

courtroom. This mischaracterizes the prosecutors argument, in which the

prosecutor quoted Pry's own testimony to show that he had time to think about

what he would say when testifying. This assertion was not misconduct.

         In support of his argument, Pry cites to Justice Ginsburg's dissent in

Portuondo v. Allard, 529 U.S.61, 1205. Ct. 1119, 146 L. Ed.47(2000). The

majority opinion in Portuondo held that a defendant's rights under the Sixth

Amendment to the United States Constitution were not violated when a


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No. 77930-3-1/13


prosecutor's closing argument called attention to the fact that the defendant had

possessed the opportunity to hear the other trial witnesses testify and to tailor his

testimony accordingly. Portuondo, 529 U.S. at 73. Justice Ginsburg was of the

view that this "transform[ed] a defendant's presence at trial from a Sixth

Amendment right Into an automatic burden on his credibility." Portuondo, 529

U.S. at 76(Ginsburg, J., dissenting).

       Our Supreme Court adopted Justice Ginsburg's views when it analyzed a

similar accusation of tailoring under the pertinent provision of the state

constitution. State v. Martin, 171 Wn.2d 521, 533-36, 252 P.3d 872(2011)

(holding that, in this circumstance, Const. art. I, § 22 provides greater rights than

does the Sixth Amendment). Soon thereafter, in State v. Hilton, 164 Wn. App.

81,261 P.3d 683(2011), a panel of Division Three judges resolved an appeal in

a case in which the prosecutor had made a more direct tailoring argument—one

that specifically referenced the defendant's presence in court. The appellate

court nevertheless rejected the defendant's assertion of prosecutorial misconduct

because the prosecutor's argument was based on the defendant's testimony, not

on his mere presence. The court explained:

              As noted previously, the Martin majority did not address the
       issue, which had divided the court in Portuondo, of whether a
       genetic tailoring argument would be proper. 171 Wn.2d at 536 n.8.
       This case does not truly present that issue, either, since the
       defendant was cross-examined about tailoring and the prosecutor's
       argument directly tied the credibility of defendant's testimony to his
       opportunity to prepare it. This was not a generic tailoring argument
       because it had a basis in the cross-examination. There was
       nothing improper about the argument because it was reasonably
       drawn from the testimony admitted at trial. Hoffman, 116 Wn.2d at
       95.



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No. 77930-3-I/14


              It was proper to cross-examine the defendant about the
      changes in his story and his opportunities to prepare those
      changes. It was thus also proper to argue the issue to the jury.
      116 Wn.2d at 95. The defendant's constitutional rights under article
      I, section 22 were not violated.

Hilton 164 Wn. App. at 98 (citing State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577

(1991)).

      In this case, the prosecutors comments in closing argument did not

accuse Pry of tailoring his testimony based on his mere presence at trial. Rather,

the comments were based on inferences that the prosecutor drew from Pry's own

testimony, as was found acceptable in Hilton. In her closing argument, the

prosecutor discussed Pry's actions and testimony to demonstrate his instinct for

self-preservation, and then made the comment that is the subject of Pry's

misconduct argument:

              So these are Robert Pry's words to you when he took the
      stand. He told you that he would not divulge information freely. He
      Is not a credible witness in this case.

             These are his words. "My life is on the line, and I've had
      plenty of time to think about what happened." He is able to craft his
      statement to you In court.

       Pry objected to this, citing to Martin. The trial court overruled his

objection, explaining that the comment was not an accusation of tailoring based

on Pry's mere presence in court but, instead, that "[the prosecutor] said ... he

had a lot of time to think about it and put a story together, essentially, which is

what he said." The prosecutor's comments,and the trial court's ruling, are

supported by the record of Pry's cross-examination. Pry's assertion of

misconduct thus fails.



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No. 77930-3-1/15




         Pry also asserts that the prosecutor's opening statement and closing

argument contained improper appeals to the jury's passion.

         In her opening statement, the prosecutor stated that Hood "probably never

envisioned" the manner of his death. In her closing argument, the prosecutor

noted that the day would have been Robert Hood's 90th birthday had he lived,

that the evidence did not indicate precisely what happened when he was beaten

and hog-tied, and that the jury should "celebrate" Hood. Of these comments,

only the last was objected to by defense counsel. On appeal, Pry avers that the

comments,taken as a whole, were so improper that they had a cumulative effect

of prejudicial error, and that this effect was so pronounced that no instruction or

series of instructions could ameliorate it and cure the error. We do not agree that

the challenged statements constituted misconduct that would entitle Pry to a new

trial.

         A defendant alleging improper argument by the State bears the burden of

proving that the prosecutor's conduct was both improper and prejudicial. State v.

Emery, 174 Wn.2d 741,756, 278 P.3d 653(2012). Once a defendant

establishes that a prosecutors statements were improper, the appellate court

determines whether the defendant is entitled to relief by applying one of two

standards of review. Emery, 174 Wn.2d at 760. The first standard, which

applies if the defendant timely objected at trial and the objection was overruled,

requires that the defendant show that the prosecutors misconduct led to

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



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No. 77930-3-1/16


174 Wn.2d at 760. However, if the objection was sustained and no further

remedy was requested, any claim that the trial judge should have imposed a

further remedy is forfeited. See State v. Giles, 196 Wn. App. 745, 769, 385 P.3d

204(2016)(when a party receives the remedies he requested, "[t]he law

presumes that these remedies are effective").4

       The second standard applies if the defendant did not object at trial. In that

event, the defendant is deemed to have waived the claim of error unless the

defendant can 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 likelihood of affecting the jury verdict.'" Emery, 174 Wn.2d at

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

        Pry relies on State v. Pierce, 169 Wn. App. 533, 553,280 P.3d 1158

(2012), in which the defendant assigned "error to three examples of the

prosecutor appealing to the jury's passion and prejudice and arguing facts

outside the evidence:(1)the prosecutors first person narrative of the thoughts

[the defendant] must have been thinking leading up to the crimes,(2)the

prosecutor's fabricated description of the murders, and (3)the prosecutors

argument that the [victims] could not have imagined they would be murdered in

their own home." In Pierce, the prosecutor "told the jury an emotionally charged,

but largely speculative," narrative of the alleged crime. 169 Wn. App. at 542.

       [Pat Yar] probably said,"This ain't over. I know you. This ain't
       over." Okay? 1 betcha he was hot. Makes these two people lay
       down on their floor, in their home, in their kitchen, almost head-to-

           'It is a principle of long standing that a trial attorney who does not request a remedy
forfeits the claim that the trial judge should have imposed that remedy." Giles 196 Wn. App. at
769-70.


                                               -16-
No. 77930-3-1/17


      head,face-to-face where they can see each other. Where they
      look into their eyes. They can look into their eyes. "I can't leave
      any witnesses, especially one that'll probably kill me the next time
      he sees me." And he shoots. There's your premeditation. "Lay
      down on the floor. Say your goodbye's."

Pierce 169 Wn.App. at 543.

       Further, the prosecutor in Pierce stated that "'[n]ever in their wildest

dreams.... or in their wildest nightmare'" could the victims have expected to be

murdered on the day of the crime. 169 Wn. App. at 555. The court in Pierce

held that this argument was an improper invitation for the jury to place

themselves in the proverbial shoes of the victims, and that the victims' lack of

expectations that the crime would occur was not relevant to the defendant's guilt.

169 Wn.App. at 555.

       Pry also cites to State v. Claflin, 38 Wn. App. 847,690 P.2d 1186(1984),

as an example of a prosecutor's undue appeal to the jury's sympathy for a victim.

In Claflin, the prosecutor recited a lengthy "poem utilizing vivid and highly

Inflammatory imagery In describing rape's emotional effect on its victims." 38

Wn.App. at 850. The court in Claflin noted that "reference to the heinous nature

of a crime and its effect on the victim can be proper argument," but that reciting

the poem "was nothing but an appeal to the jury's passion and prejudice" that

"contained many prejudicial allusions to matters outside the actual evidence." 38

Wn. App. at 849-51.

       In the State's opening statement herein, the prosecutor offered that "[Mr.

Hood] probably never envisioned that when he opened the door that night that he

would be beaten so severely that he would be left paralyzed, that he would then



                                         -17-
No. 77930-3-1/18


be hog-tied and left to die on his bathroom floor."5 Pry analogizes this statement

to the "never in their wildest dreams" statement in Pierce. 169 Wn. App. at 555.

Here, however, the prosecutor's language was more tempered than either that

used in Pierce or that which Pry's brief alleges. Significantly, the prosecutor

qualified her statement with the word "probably." Moreover, as Pry did not

object, our inquiry considers whether the allegedly improper statement was so

flagrant and ill-intentioned that any resulting prejudice could not have been

remedied by a curative instruction. The language used here is not comparable to

the inflammatory statement in Pierce and, even if the statement were improper,

we are confident that any resulting prejudice could have been cured by a proper

Instruction.

       Pry also asserts that, in the State's closing argument, the prosecutor

"fabricated a description" of the attack on Hood comparable to that set out in

Pierce. In his brief, Pry quotes the prosecutors opening passage from this

argument while omitting the sentences in which she tied her comments to the

available evidence. The full passage in question is as follows:

       Pie are here talking about the violence that was done to his body.
       The violence that was done to his body after he was killed. We are
       here talking about the night of terror that was issued upon him on
       December 17th. When Joshua Rodgers Jones and Robert Pry go
       to his house, knock on the door and say,"It's God."

                Now, Robert Hood knew Rodgers Jones, likely trusted
        Rodgers Jones. There was no signs of a forced entry. I don't know
        If the door was unlocked or if he let them in.


       5 In Pry's brief, Pry asserts that the prosecutor stated, in her opening statement,'Mr.
Hood could not have imagined that he would be beaten so severely that he would be left
paralyzed, then hog-tied, and left to die on his bathroom floor? The record shows that the
prosecutor actually stated that Hood 'probably never envisioned" these events.


                                              -18-
No. 77930-3-1/19


             I don't know what happened in those first moments, whether
      or not they started in on him right away or whether or not they sat
      and chatted with him first. Whether Rodgers Jones introduced
      Archie to Robert Pry. Or whether they started torturing him right
      away. Whether they started shouting at him and hitting him,
      demanding his account numbers, his PIN numbers, his cash, his
      firearms. I can't answer those questions for you.

            And I don't have to answer those questions for you. We do
      know from Dr. Lacsina, the medical examiner, that he was beaten.
      We know that he was beaten severely around the head. We saw
      those horrible pictures. We know that he had a broken nose, that
      he had swollen, blackened eyes. We know that he had defensive
      wounds on his hands. Extensive bleeding on the brain under his
      subarachnoid, on his skull, he had bleeding.

             We know that he was beaten after he was tied. We know he
      was still alive when he was bound by the hands. We can only hope
      that by the time he was hit so hard that he was paralyzed that he
      was rendered unconscious. We can only hope that when he was
      dragged into the bathroom and hogtied and left to die on the
      bathroom floor, that he was unconscious.

       Pry omits the third paragraph of this passage from his brief. However,

with the benefit of the context provided by the omitted passage, it is clear that the

prosecutor did not fabricate a narrative comparable to that which took place In

Pierce. To the contrary, the prosecutor stated that the evidence did not show the

exact course of events during the home invasion, but pointed out that this was

not necessary in order for the State to prove its case because of that which the

evidence did establish.

       Pry also argues that two sentences quoted above beginning with "We can

only hope..." were an undue appeal to sympathy for Hood, comparable to the

language used by the prosecutor in Claflin. We disagree. The prosecutor herein

was primarily referring to the evidence presented at trial and stated explicitly

which facts had been and which facts had not been established by the evidence.


                                        -19-
No. 77930-3-1/20


Indeed, the evidence well-supported the prosecutor's statements that "[Hood]

was hit so hard that he was paralyzed" and that "he was dragged into the

bathroom and hogtied and left to die on the bathroom floor." Nothing in the

prosecutor's statement can be properly likened to the poetry recited in Claflin

      All of the comments made by the prosecutor in closing to which Pry did

not object, but now cites to support his claim of misconduct, were but small

fragments of a lengthy closing argument Comparing them, in context, to the

arguments advanced in the cases Pry cites, they are measured statements.

They are not shown to have been flagrant and ill-intentioned. It is not established

that proper jury instructions could not have cured any prejudice resulting from

these statements. Indeed, it is not apparent that any prejudice resulted from the

statements at all. In fact, after closing arguments were delivered, the jury took

five days to examine the evidence, did not vote to convict Davis on several of the

State's charges, and declined to find one of the aggravating circumstances with

which Cruz had been charged. These are not the actions of a jury stirred to

decide a case based on its passions rather than the evidence produced at trial.

       The prosecutor also stated that the jury should "celebrate" Hood. Pry

objected to this comment. The trial court sustained the objection. Thereafter,

none of the defendants requested any further relief. Pry received the remedy he

requested regarding the "celebrate" remark. The law presumes this remedy to

be effective. Giles 196 Wn.App. at 769(citing State v. Warren, 165 Wn.2d 17,

28, 195 P.3d 940(2008); State v. Swan 114 Wn.2d 613,661-64, 790 P.2d 610

(1990)). Thus, Pry's contention that the prosecutor's statements, taken together,



                                        -20-
No. 77930-3-1/21


constituted misconduct that denied him a fair trial is unavailing. He does not

establish an entitlement to appellate relief.

                                          F

       Pry, pro se, seeks relief in a statement of additional grounds filed pursuant

to RAP 10.10. None of these grounds merit appellate relief.

       Pry first asserts that the trial court erred by admitting hearsay statements

under hearsay exceptions that he contends were inapplicable. However, he

provides no argument or authority as to how these statements failed to conform

to exceptions to the hearsay rule. Thus, he does not establish trial court error.

       Pry next contends that his sentence violated the constitutional prohibition

on double jeopardy. He avers that, although his robbery and felony murder

convictions were merged at the entry of judgment into the felony murder

conviction, his kidnapping conviction should also have been merged into the

felony murder conviction. Again, he provides no support for his contention. Pry

cites to State v. Williams, 131 Wn.App. 488, 128 P.3d 98(2006), but that case

only concerns the merger of felony murder and robbery convictions into the

felony murder conviction—exactly as happened herein.

       "If the legislature authorizes cumulative punishments for both offenses,

double jeopardy is not offended." State v. Moreno, 132 Wn. App.663,667, 132

P.3d 1137(2006). "Where a defendant's act supports charges under two

criminal statutes, a court weighing a double jeopardy challenge must determine

whether, in light of legislative intent, the charged crimes constitute the same

offense." In re Pers. Restraint of Orange, 152 Wn.2d 795,815, 100 P.3d 291



                                         -21-
No. 77930-3-1/22


(2004). Washington courts have consistently ruled that, consistent with

legislative intent, "kidnapping and robbery never merge." State v. Berg, 181

Wn.2d 857, 866 n.3, 337 P.3d 310(2014)(citing In re Personal Restraint of

Fletcher 113 Wn.2d 42, 52-53, 776 P.2d 114(1989)). In arguing that the

robbery and kidnapping convictions should have been merged, Pry is arguing

against settled law. There was no error.

       Finally, Pry assigns error to the court's imposition of an exceptional

sentence. Specifically, he contends that the trial court's decision to increase his

sentence based on a finding not included in the jury's verdicts was a violation of

his right to a jury trial. Pry received an exceptional sentence pursuant to ROW

9.94A.535(2)(c), which gives the trial court discretion in imposing a sentence

when a defendant has committed multiple current offenses and, due to the

defendant's high offender score, the absence of an exceptional sentence would

allow one or more crimes to go unpunished. Pry's case fit this scenario due to

his plethora of prior convictions and current offenses. Contrary to Pry's

assertions, the sentencing court is allowed to make findings of fact regarding the

existence of prior convictions. Blakely v. Washington, 542 U.S. 296, 301, 124 S.

Ct. 2531, 159 L. Ed. 2d 403(2004). Thus, the imposition of an exceptional

sentence did not violate Pry's Sixth Amendment rights. This argument, as with

the other arguments in Pry's statement of additional grounds, lacks merit. Pry's

statement of additional grounds fails to establish a basis for appellate relief.




                                        -22-
No. 77930-3-1/23


                                        11

                                  Davis Appeal

                                        A

      Ocean Wilson testified that it was Robert Davis who drove Pry and

Rodgers-Jones to Hood's house on December 17. The drop-off location

identified by Wilson was under 24-hour video surveillance, although the quality of

the surveillance footage was too poor to discern any cars stopping there. That

evening, Davis met with Alisha Small, telling Small that he had heard that she

was a "paper shark"—a person with good accounting skills—and that he had "a

large account... he wanted [her]to work on?

       Davis, Small, Wilson, Pry, Dudley-Pry, and Rodgers-Jones later headed

for the Emerald Queen Casino in Fife. At the casino, Davis called his friend

Donald Goodloe and asked him to come to the casino. Goodloe did so,

accompanied by Sheila Costello. Using money provided by Davis, Goodloe

rented a room at a motel across the street. Pry, Dudley-Pry, and Small all used

the room to attempt to access Hood's bank accounts. Davis occupied his own

room at the casino hotel. Late the next day, all except Costello returned to

Bremerton.

       Davis was arrested on December 22. He was eventually tried along with

Pry and Cruz. Among the 68 testifying witnesses were Wilson, Goodloe, Davis's

former roommate Christina Waggoner, and several detectives. During the

prosecution's direct examination of Detective Ray Stroble, who had previously

questioned Goodloe, evidence was introduced to the effect that Davis had



                                       -23-
No. 77930-3-1/24


involved Costello to get her aid in helping access Hood's accounts. This

evidence was admitted only to impeach Goodloe's testimony, and the jury was

instructed that it was not to consider the evidence for any other purposes.

       Waggoner testified for the State. During Davis's cross-examination of

Waggoner, his counsel brought out the issue of Waggoner's poor relationship

with her neighbors due to her connection with Davis. The trial court ruled that

this opened the door, on re-direct examination, to testimony that Waggoner had

been questioned by third parties regarding her loyalty to Davis. Davis's attorney

unsuccessfully argued that the issues were not related.

       In closing argument, the prosecutor referred to Davis's alleged recruitment

of Costello to help access Hood's accounts. Davis's lawyer did not object" In

Davis's summation, his attorney noted to the jury that no substantive evidence

supported the allegation that Davis had recruited Costello for this purpose.

        Davis was acquitted on charges of murder in the first degree and robbery

In the first degree. The jury found him guilty of identity theft in the second

degree. Davis received an exceptional sentence of 103 months based on a plea

bargain with the State!



        Davis first asserts that the prosecutor engaged in misconduct when,

during closing argument, she referenced—for substantive purposes—evidence

that had been admitted only for impeachment purposes. The challenged


       6 The state concedes that this was a misuse of Impeachment evidence.
       7 Davis's plea bargain Involved a guilty plea for an unrelated charge of felonypromotion
of prostitution. The plea bargain arrangement ran his sentence for this conviction consecutively
to his sentence for the conviction herein.


                                              -24-
No. 77930-3-I/25


statement was the prosecutor's reference to evidence that Davis brought Sheila

Costello to Fife to help with accessing Hood's bank accounts.

       The State concedes that this reference was improper but, nevertheless,

argues that it does not warrant a new trial. We agree.

       As previously discussed, claims of prosecutorial misconduct are reviewed

under one of two standards. If the allegedly improper statement was objected to,

the defendant must show that it led to prejudice that had a substantial likelihood

of affecting the jury's verdict. Emery, 174 Wn.2d at 760. If no objection was

interposed, the defendant must show that the misconduct was so grave that no

curative instruction could have obviated its prejudicial effect on the jury, and that

the misconduct was flagrant, ill-intentioned, and "resulted in prejudice that'had a

substantial likelihood of affecting the jury verdict.'" Emery, 174 Wn.2d at 761

(quoting Thomerson, 172 Wn.2d at 455). In addressing the question of jury

prejudice, the jury is presumed to follow its instructions. State v. Grisby, 97

Wn.2d 493,499,647 P.2d 6(1982)(assessing prejudice from improper

statement in argument to jury).

       Davis did not object to the misuse of the impeachment evidence. Rather,

he addressed the issue in his own closing argument. As there was no objection,

we review the contention of misconduct under the more stringent standard. With

the exception of the single utterance about Costello, the prosecutor made an

argument as to Davis's involvement with the effort to access Hood's bank

accounts that was fully supported by the substantive evidence. This includes the

evidence that Davis recruited Small to assist with accessing Hood's accounts,



                                         -25-
No. 77930-3-1/26


that he transported Small, Pry, and Wilson to the motel near the Emerald Queen

Casino (where they made attempts to access Hood's bank accounts), and that

he gave Don Goodloe money to rent the room at the motel in Goodloe's name.

       Significantly, the jury was given the following instruction at the time that

the impeachment evidence was offered during trial:

            I'm going to allow the witness to answer the following
      questions, but you may consider the answers only for the purpose
      ofjudging the credibility of Donald Goodloe's testimony. The
      answers are not being admitted as substantive evidence and you
      may not consider the answers in your deliberations as proof of the
      matter asserted.

       Prior to the attorneys' closing arguments and the jury commencing its

deliberations, the jury was also provided with the following instruction:

              One of my duties has been to rule on the admissibility of
       evidence. Do not be concerned during your deliberations about the
       reasons for my rulings on the evidence. If I have ruled that any
       evidence is inadmissible, or if I have asked you to disregard any
       evidence, then you must not discuss that evidence during your
       deliberations or consider it in reaching your verdict. Do not
       speculate whether the evidence would have favored one party or
       the other.

Jury Instruction 1. The jury was also instructed that:

              Certain evidence has been admitted in this case for only a
       limited purpose. This evidence may be considered by you only for
       that purpose. You may not consider it for any other purpose. Any
       discussion of the evidence during your deliberations must be
       consistent with this limitation.

Jury Instruction 6.

       Thus, it is plain that a curative instruction (the judge simply reminding the

jury of the judge's prior instructions) could have ameliorated any prejudice

caused by the passing misuse of the impeachment evidence. Moreover, nothing



                                         -26-
No. 77930-3-1/27


supports the proposition that the misuse was flagrant or ill-intentioned. Davis's

assertion of misconduct fails.

                                          C

       Davis next asserts that his attorney provided constitutionally deficient

representation because his lawyer did not object to the prosecution's misuse of

the impeachment evidence. We disagree.

       Constitutionally ineffective assistance of counsel is established only when

the defendant shows that(1)counsel's performance, when considered in light of

all the circumstances, fell below an objectively reasonable standard of

performance, and (2)there is a reasonable probability that, but for counsel's

deficient performance, the result of the proceeding would have been different.

Strickland v. Washington,466 U.S.668,689-95, 104 S. Ct. 2052,80 L. Ed. 2d

674(1984); State v. Hassan, 151 Wn. App. 209, 217, 211 P.3d 441 (2009). The

burden is on the defendant to demonstrate deficient representation and

prejudice. In re Det. of Hatfield, 191 Wn. App. 378,401, 362 P.3d 997(2015).

Failure to satisfy either part of this analysis ends the inquiry. State v.

Hendrickson, 129 Wn.2d 61, 78,917 P.2d 563(1996).

      "Because the presumption runs in favor of effective representation, the

defendant must show in the record the absence of legitimate strategic or tactical

reasons supporting the challenged conduct by counsel." State v. McFarland, 127

Wn.2d 322, 336,899 P.2d 1251 (1995). "[T]he presumption of adequate

representation is not overcome if there is any 'conceivable legitimate tactic' that




                                         -27-
No. 77930-3-1/28


can explain counsel's performance." Hatfield, 191 Wn. App. at 402(quoting

State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80(2004)).

       Furthermore, prejudice is only shown if "there is a reasonable probability

that, but for counsel's deficient performance, the outcome of the proceedings

would have been different." State v. KvIlo, 166 Wn.2d 856, 862, 215 P.3d 177

(2009). "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Strickland,466 U.S. at 694. There is a significant

limitation applicable to the assessment of prejudice.

       In assessing prejudice,"a court should presume, absent challenge
       to the judgment on grounds of evidentiary insufficiency, that the
       judge or jury acted according to the law" and must"exclude the
       possibility of arbitrariness, whimsy, caprice,'nullification' and the
       like."

State v. Grier, 171 Wn.2d 17, 34,246 P.3d 1260(2011)(quoting Strickland, 466

U.S. at 694-95). As the Supreme Court explained in Strickland,

       A defendant has no entitlement to the luck of a lawless
       decisionnnaker, even if a lawless decision cannot be reviewed. The
       assessment of prejudice should proceed on the assumption that the
       decisionmaker is reasonably, conscientiously, and impartially
       applying the standards that govern the decision.

466 U.S. at 695. This means that, in assessing potential prejudice, we must

assume that the jury followed the court's Instructions. Grier, 171 Wn.2d at 43-44.

       As to the first part of the Strickland two-part test, Davis does not contend,

let alone show,that there was no conceivable tactical reason for his counsel to

refrain from objecting to the misuse of the impeachment evidence. To the

contrary, the record makes clear that his attorney knew that the impeachment

evidence could not be considered by the jury for substantive purposes and opted



                                        -28-
No. 77930-3-1/29


not to object in favor of addressing the matter during Davis's closing argument.

Put simply, rather than object during argument(and risk looking like an

obstructionist to the jury), counsel chose to use part of her closing argument to

rightfully accuse the prosecutor of trying to cheat to gain a conviction. This was a

conceivable, and sound, tactical decision.

       It is also true that Davis cannot show that he was prejudiced as a result of

his lawyer's performance. As noted, the impeachment evidence in question was

admitted along with a limiting instruction directing that the evidence could not be

considered by the jury as substantive evidence. The jury, before both closing

arguments and its deliberations, was again instructed to this effect. The jury is

conclusively presumed to have followed these instructions. Strickland 466 U.S.

at 695; Grier, 171 Wn.2d at 43-44.

       Because Davis is not entitled to rely on a lawless decision-maker to

establish prejudice, he cannot do so. Assuming that the jury followed its

instructions, as we must, there is no possibility that it considered the

impeachment evidence as substantive evidence. As a matter of law, Davis

cannot show prejudice.

                                          D

       Davis next claims that he received ineffective assistance of counsel based

on his lawyer's cross-examination of Christina Waggoner. Specifically, Davis

faults his attorney for opening the door to testimony that Waggoner was under

pressure not to testify against Davis. Davis, again, does not show that his

counsel's assistance was ineffective.



                                        -29-
No. 77930-3-1/30


      The Strickland test, summarized above, requires Davis to prove both

deficient performance and prejudice. Deficient performance is that which falls

"below an objective standard of reasonableness." Strickland, 466 U.S. at 688.

Defense counsel's decisions on strategy or tactics in the course of representation

are given deference on review and the threshold for proving deficient

performance is high. "In any case presenting an ineffectiveness claim, the

performance inquiry must be whether counsel's assistance was reasonable

considering all the circumstances." Strickland, 466 U.S. at 688. "When

counsel's conduct can be characterized as legitimate trial strategy or tactics,

performance is not deficient." KvIlo, 166 Wn.2d at 863.

       Here, Davis's attorney had a legitimate trial strategy behind her line of

questioning while cross-examining Waggoner: she brought out the fact that

Waggoner's neighbors were unhappy with her after Davis, a house guest of hers,

was involved in Hood's robbery and murder. This would tend to show that

Waggoner had a motive to testify against Davis. In this way, Davis's attorney

sought to impeach Waggoner's testimony.

       Davis's counsel made an obvious tactical decision. The adoption of such

a tactic does not constitute deficient performance. Davis's ineffective assistance

of counsel claim fails.

                                         E

       Based on the assignments of error discussed above, Davis next argues

that he has a right to a new trial due to cumulative error. Cumulative error is

established when,taken alone, several trial court errors do not warrant reversal



                                        -30-
No. 77930-3-1/31


of a verdict but the combined effect of the errors denied the defendant a fair trial.

State v. Hodges, 118 Wn. App. 668,673-74,77 P.3d 375(2003). It is the

defendant's burden to prove an accumulation of error of sufficient magnitude to

necessitate retrial. In re Pers. Restraint of Lord, 123 Wn.2d 296, 332,868 P.2d

835,870 P.2d 964(1994). Davis makes this assertion without support. He has

not established any prejudicial error, let alone the many errors that would give

rise to a ruling of cumulative error. His claim fails.

                                                F

          Davis, pro se, seeks relief in a statement of additional grounds pursuant to

RAP 10.10.8 None of his contentions therein establish a basis for appellate

relief.

          As did Pry, Davis alleges that the trial court violated his due process rights

by admitting co-conspirator statements despite hearsay objections. However, all

of the admitted statements with which Davis takes issue were statements made

in furtherance of a conspiracy, as defined by ER 801(d)(2)(v), or were adoptive

admissions, pursuant to ER 801(d)(2)(ii), and were thus properly admitted as

admissions of a party-opponent. Davis does not make a substantive argument

as to why any of the statements admitted failed to conform to applicable hearsay

exceptions.

          Davis also advances several claims of prosecutorial misconduct. First, he

argues that the prosecutor undercut a plea bargain that he had entered into by


        'Davis's statement of additional grounds Includes further claims of Ineffective assistance
of counsel. This assertion is rejected for the same reasons as his other claims of Ineffective
assistance. He shows neither deficient performance nor prejudice arising from his attomey's
performance.


                                              -31-
No. 77930-3-1/32


discussing unrelated criminal convictions at Davis's sentencing hearing. The

plea bargain involved the imposition of consecutive sentences for the identity-

theft conviction and an unrelated charge of promoting prostitution, to which Davis

had entered a guilty plea. The prosecutor discussed Davis's criminal history as

part of its explanation to the sentencing judge as to why the consecutive

sentences, to which Davis had agreed, should be imposed. The prosecutor did

not undercut the plea bargain.

       Davis next argues that prosecutorial misconduct compromised his right to

a fair trial and to a speedy trial. These assertions arise out of the State's addition

of a charge of murder in the first degree in its third amended information, filed

shortly before the original trial date. In response to the amendment, Davis's

counsel moved for a continuance, which was granted. Subsequently, Davis

moved to dismiss the murder charge, contending that the introduction of this

charge in close proximity to the original trial date constituted misconduct that

violated Davis's right to a fair trial. The State averred, in response, that the

murder charge could not have been added until the State had reviewed sufficient

evidence and that such review took a great deal of time due to the complex

investigation and discovery process. The trial court denied Davis's motion to

dismiss the charge.

       Davis's speedy trial right cannot be said to have been violated by the

addition of the murder charge; the State put forth a valid reason for filing the

amended information when it did. There is nothing in the record to support his

contention that the amendment was delayed in order to force him into requesting



                                         -32-
No. 77930-3-1/33


a continuance. Similarly, the addition of the murder charge cannot be said to

have denied Davis his right to a fair trial, given that the jury acquitted him of that

charge and the charge of robbery in the first degree.

       Davis next alleges perjury on the part of the prosecution's witnesses,

particularly Ocean Wilson, to support an overall theory of malicious misconduct

by the prosecution. The record does not support these claims. Davis claims that

Wilson's perjury was indicated by camera footage that does not show Davis's car

stopping at the time and place identified by Wilson when Davis dropped off Pry

and Rodgers-Jones. However, testimonial evidence adduced at trial indicates

that this was the result of the poor quality of the footage and does not show that

Wilson's account was fabricated. Davis also makes sundry accusations of

perjury against other state witnesses without any substantial support for his

claims. As to all of these assertions, our purpose is not to reweigh the evidence.

His claim that we should do so is unavailing.

       Davis next asserts that his offender score of 22 was incorrectly calculated.

During his sentencing hearing, he stated that he agreed with the trial court's

calculation of his offender score. His assertion that it is incorrect is a new

position taken without any explanation and without support in the record. His

claim does not warrant appellate relief.

       Davis also makes a vague assertion that the search warrant for his home

and car was not valid, without providing any authority as to why this would be the

case. Thus, he does not establish an entitlement to appellate relief.




                                         -33-
No. 77930-3-1/34


       Finally, Davis assigns error to the trial court's grant of the State's motion

for joinder and to the trial court's subsequent denial of his motion to sever.

Separate trials are not favored; a defendant seeking severance has the burden of

demonstrating that a joint trial will result in a specific unfair prejudice that

outweighs the policy of judicial economy that is served by joint trials. State v.

Rodriquez, 163 Wn.App. 215, 228,259 P.3d 1145(2011). Davis's statement

alleges no such unfair prejudice, or, in fact, any concern that would outweigh the

public's interest in judicial economy in light of the trial's significant length, the

nature of the charges, and the number of witnesses involved.

       Nothing in Davis's statement of additional grounds establishes a basis for

appellate relief.

                                            III

                                      Cruz Appeal

                                            A

       Cruz's primary contention on appeal is that the amended information

charging him with rendering criminal assistance in the first degree was

constitutionally deficient because it failed to allege several essential elements of

the crime. We agree.

       Following Hood's death, Pry became concerned about secretly disposing

of Hood's body. He asked Cruz for help. When law enforcement officers

discovered Hood's body, they released Cruz's name to the press as someone

being sought in connection with Hood's death.




                                          -34-
No. 77930-3-1/35


        Cruz subsequently surrendered himself to the police. He was charged by

information with having committed both the felony of rendering criminal

assistance in the first degree and the gross misdemeanor of concealing a

deceased body. The amended information included the following language

concerning the charge of rendering criminal assistance in the first degree:

                                 Count 1
        Rendering Criminal Assistance in the First Degree 1Non-Relativel

               On or about or between December 17, 2015 and December
        30,2015, in the County of Kitsap, State of Washington, the above-
        named Defendant, rendered criminal assistance to a person who
        had committed or was being sought for any class A felony; contrary
        to the Revised Code of Washington 9A.76.070(1).191

        Cruz contends that the information charging him with rendering criminal

assistance in the first degree was constitutionally deficient. This is so, he

asserts, because the information did not set forth all of the essential elements of

the crime.



       9 In comparison, the to-convict jury instruction at trial for the charge of rendering criminal
assistance in the first degree Is more detailed and reads as follows:

                 To convict Arnold Cruz of the crime of Rendering Criminal Assistance In
        the First Degree, each of the following elements of the crime must be proved
        beyond a reasonable doubt:
                (1) That on or between December 17, 2015 and December 30, 2015,
        Arnold Cruz rendered criminal assistance to another person; and,
                 (2)That Arnold Cruz acted with the intent to prevent, hinder or delay the
        apprehension or prosecution of another person; and,
                 (3)That such other person had committed or was being sought for Murder
        In the First Degree; and,
                 (4)That Arnold Cruz knew that such other person had committed or was
        being sought for Murder, and,
                 (5)That the defendant's act occurred In the State of Washington.
                 If you find from the evidence that each of these elements has been proved
        beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                 On the other hand, if, after weighing all the evidence, you have a
        reasonable doubt as to any one of these elements,then it will be your duty to return
        a verdict of not guilty.


                                                -35-
No. 77930-3-1/36


      An accused has a right under both the state and federal constitutions to be

Informed of each criminal charge alleged so that the accused may adequately

prepare a defense for trial. U.S. CONST.amend. VI; WASH.CONST. art. I, § 22

(amend. X). The State must provide a charging document that sets forth every

material element of each charge made, along with essential supporting facts.

State v. McCarty, 140 Wn.2d 420,425,998 P.2d 296(2000).

      "The standard of review for evaluating the sufficiency of a charging

document is determined by the time at which the motion challenging its

sufficiency is made." State v. Taylor, 140 Wn.2d 229,237,996 P.2d 571 (2000).

When a defendant challenges the sufficiency of the charging document prior to a

verdict, the charging language is strictly construed. Taylor, 140 Wn.2d at 237. If,

however, the defendant challenges the sufficiency of the charging document

following a verdict, then the charging language must be construed liberally in

favor of validity. Taylor, 140 Wn.2d at 237.

       Because a challenge to the sufficiency of a charging document involves a

question of constitutional due process, it may be raised for the first time on

appeal. State v. Leach, 113 Wn.2d 679,691,782 P.2d 552(1989). When an

appellant raises such a challenge, the proper standard of review is the two-

pronged test set forth in State v. Kiorsvik, 117 Wn.2d 93, 106, 812 P.2d 86

(1991):"The standard of review we here adopt will require at least some

language in the information giving notice of the allegedly missing element(s) and

if the language is vague, an inquiry may be required Into whether there was

actual prejudice to the defendant."



                                        -36-
No. 77930-3-1/37


       A charging document satisfies the first prong of this test by setting forth all

of the essential elements of the crime charged. McCarty, 140 Wn.2d at 425. If

the required elements are set forth, even if only in vague terms, then the

charging document satisfies the second prong of the test if the terms used did

not result in any actual prejudice to the defendant. McCarty, 140 Wn.2d at 425.

However, if the required elements cannot be found, or even fairly implied, in the

charging document, we do not reach the second prong of the test Instead, when

the charging document fails the first prong of the test, prejudice to the defendant

is presumed and we must declare the charging document constitutionally

deficient. McCarty, 140 Wn.2d at 425. The remedy for a constitutionally

deficient charging document is reversal and dismissal of the charge without

prejudice to the State's ability to refile the charge. State v. Quismundo, 164

Wn.2d 499, 504, 192 P.3d 342(2008).

       Here, Cruz asserts that the information charging him with rendering

criminal assistance in the first degree omitted essential elements of the crime set

forth in ROW 9A.76.050. The State responds by asserting that ROW 9A.76.050

merely provides a definition for an element of the crime of "rendering criminal

assistance in the first degree" as set forth in RCW 9A.76.070, and that such

definitional terms need not be alleged. Because Cruz raises his challenge for the

first time on appeal, we apply the standard of review announced in K orsvik.

Hence, to properly resolve the claim of error, we must first identify the essential

elements of the crime of rendering criminal assistance in the first degree.




                                         -37-
No. 77930-3-1/38


       RCW 9A.76.070(1) provides that, "[a] person is guilty of rendering criminal

assistance in the first degree if he or she renders criminal assistance to a person

who has committed or is being sought for murder in the first degree or any class

A felony or equivalent juvenile offense." The base crime of"rendering criminal

assistance" is set forth in RCW 9A.76.050:

             As used in RCW 9A.76.070, 9A.76.080, and 9A.76.090, a
      person "renders criminal assistance" if, with intent to prevent,
      hinder, or delay the apprehension or prosecution of another person
      who he or she knows has committed a crime or juvenile offense or
      is being sought by law enforcement officials for the commission of a
      crime or juvenile offense or has escaped from a detention facility,
      he or she:
             (1) Harbors or conceals such person; or
             (2) Warns such person of impending discovery or
      apprehension; or
             (3) Provides such person with money,transportation,
      disguise, or other means of avoiding discovery or apprehension; or
             (4) Prevents or obstructs, by use of force, deception, or
      threat, anyone from performing an act that might aid in the
      discovery or apprehension of such person; or
             (5) Conceals, alters, or destroys any physical evidence that
      might aid in the discovery or apprehension of such person; or
             (6) Provides such person with a weapon.

       Six years ago, our Supreme Court was called upon to resolve a sufficiency

of the evidence challenge to a conviction for rendering criminal assistance in the

first degree. State v. Budik, 173 Wn.2d 727,272 P.3d 816(2012). To resolve

the challenge, the court was required to identify the essential elements of the

offense. Budik, 173 Wn.2d at 733("the question is whether, viewing the

evidence in the light most favorable to the State,'any rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt'"

(emphasis added)(quoting State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007

(2009))). The court did so, stating that a person violates RCW 9A.76.070


                                        -38-
No. 77930-3-1/39


       if(1)"he or she renders criminal assistance"(2)to another person
       "who has committed or is being sought for murder in the first
       degree or any class A felony or equivalent juvenile offense."...

       [A] person renders criminal assistance if he or she (1) knows that
       another person (a)"has committed a crime or juvenile offense" or
       (b)"is being sought by law enforcement officials for the commission
       of a crime or juvenile offense" or(c)"has escaped from a detention
       facility" and (2)intends "to prevent, hinder, or delay the
       apprehension or prosecution" of that other person and (3)
       undertakes one of the six specified actions [set forth in RCW
       9A.76.050].

Budik 173 Wn.2d at 734. The court found that the evidence was insufficient to

support a finding that Budik had undertaken one of the six specified actions set

forth in RCW 9A.76.050. Budik, 173 Wn.2d at 737-38. Therefore, the court

concluded, no rational fact finder could have found all of the essential elements

of the crime of rendering criminal assistance in the first degree proved beyond a

reasonable doubt. Budik 173 Wn.2d at 737-38.1°

        Although we are here considering the sufficiency of an information, rather

than the sufficiency of the evidence supporting a conviction, the essential

elements identified in Budik control. Indeed, it was incumbent upon our Supreme

Court to set forth the essential elements of the crime of rendering criminal

assistance in the first degree before it could analyze whether the evidence

sufficiently supported a finding that all of those elements had been proved

beyond a reasonable doubt. See Budik, 173 Wn.2d at 733. Therefore, the Budik

decision unquestionably identified the essential elements of the crime of



       "We have previously followed Budik relying on its Identification of the essential
elements of the crime of rendering criminal assistance In the first degree, in resolving a similar
sufficiency of the evidence challenge to a conviction for rendering criminal assistance In the first
degree. State v. Mollet, 181 Wn. App. 701,706-08, 326 P.3d 851 (2014).


                                                -39-
No. 77930-3-1/40


rendering criminal assistance in the first degree. That the essential elements

must be delineated herein, so as to evaluate the content of the charging

document, as opposed to the sufficiency of the evidence adduced at trial, is of no

moment.

       The amended information charging Cruz with rendering criminal

assistance in the first degree did not include all of the essential elements of the

crime, as identified in Budik. In fact, it did not set forth any of the elements of the

base crime of rendering criminal assistance set forth by RCW 9A.76.050.

Because the amended information entirely omitted references to such elements

and was devoid of any language from which those elements could be fairly

implied, the information fails the first prong of the K orsvik test. As a result, we

presume prejudice to Cruz and need not consider the second prong of the test."

        For its part, the State contends that RCW 9A.76.070 sets forth the crime

of rendering criminal assistance in the first degree and that RCW 9A.76.050 sets

forth merely the definition of an element of that crime, i.e., what it means to

render criminal assistance. The State further asserts that this definition of

rendering criminal assistance, as set forth in RCW 9A.76.050, did not need to be

included in the amended information. These contentions are unavailing. Given

that this argument directly conflicts with our Supreme Court's holding in Budik,

wherein the court identified the essential elements of the crime as including the


        II The State contends that other circumstances In the charging process, specifically a
detailed probable cause statement provided to Cruz with the original Information, sufficiently
Informed Cruz of the charges against him so as to bar any claim that he was prejudiced by the
information. Because we do not reach the second prong of the Xiorsvik test we need not
consider this argument. When the charging document fails the first prong of the KlorsviR test,
prejudice is presumed.


                                              -40-
No. 77930-3-1/41


elements of the base crime of rendering criminal assistance set forth in RCW

9A.76.050, the State's arguments fail.

        In support of its contentions, the State cites to State v. Johnson, 180

Wn.2d 295, 325 P.3d 135(2014), and State v. Porter, 186 Wn.2d 85, 375 P.3d

664(2016). Neither of these cases supports the State's assertion that Budik did

not declare that the essential elements of rendering criminal assistance in the

first degree include the elements set forth in RCW 9A.76.050.12 Indeed, the

State misinterprets the cases cited. This misperception stems from a

fundamental misapprehension of a basic principle: there is a difference between

an instruction that states what the essential elements of a crime are, as opposed

to an instruction that states what an essential element means.

        In Johnson the defendant was charged with unlawful imprisonment. The

information stated that"the defendant J.C. JOHNSON in King County,

Washington, during a period of time intervening between May 4, 2009 through

May 6,2009, did knowingly restrain [II], a human being." 180 Wn.2d at 301.

Johnson challenged the sufficiency of the information because it did not include

the definition of "restrain," as set forth in former RCW 9A.40.010(1)(1975).

Johnson, 180 Wn.2d at 301-02. Our Supreme Court rejected Johnson's




        12 The State asserts that Porter distinguished between the requirements ofjury
instructions and the requirements of charging documents. Therefore, the State reasons Budik's
determination of the essential elements does not apply here, as it reviewed the sufficiency of
evidence posttrial. Such a conclusion Is a misreading of Porter, which simply stated that not "all
aspects of proof that are necessary at trial constitute essential elements that must be Included In
the Information.* Porter, 186 Wn.2d at 94. Porter did not upset clear precedent requiring that all
essential elements of any crime charged be included In a charging document.


                                               -41-
No. 77930-3-1/42


argument, holding that the State was not required to include the definition of the

element of "restrain." Johnson, 180 Wn.2d at 301-02.

       Similarly, in Porter, the court deemed sufficient an information charging

the defendant with unlawful possession of a stolen vehicle that did not include

the definition of the word "possess." 186 Wn.2d at 91. The information in

question alleged that"CLIFFORD MELVIN PORTER, JR., in the State of

Washington, on or about the 27th day of August, 2011, did unlawfully and

feloniously knowingly possess a stolen motor vehicle, knowing that it had been

stolen." Porter, 186 Wn.2d at 88. Porter argued that the information should have

included the definition of possess, as set forth in ROW 9A.56.140(1), as an

essential element. Porter, 186 Wn.2d at 88. The court disagreed, holding that

ROW 9A.56.140(1) merely defined the essential element of possession, rather

than providing an additional element that the State must charge. Porter, 186

Wn.2d at 91.

        Neither Johnson nor Porter overrule the holding in Budik that ROW

9A.76.050 sets forth some of the essential elements of the crime of rendering

criminal assistance in the first degree." Both Johnson and Porter support the

proposition that provisions of definitional statutes that explain what an essential

element of a crime means may be excluded from an information, but that

provisions of definitional statutes that explain what the essential elements of a


        13 Additionally, Johnson and    Porter can be further distinguished from the circumstances
herein because    the  charging documents   analyzed in both cases included essential mens rea
elements that are absent In the amended Information charging Cruz. In fact, the court In porter
specifically distinguished its holding from that of another case, State v. Moavenzadeh 135 Wn.2d
359, 956 P.2d 1097(1998), wherein the charging document was found to be Insufficient because
It did not Include all essential mens rea elements.


                                              -42-
No. 77930-3-1/43


crime are must be included. Because the court in Budik specifically set forth the

provisions of RCW 9A.76.050 as essential elements of the crime of rendering

criminal assistance in the first degree, the State cannot be correct that section

.050 merely explains the meaning of an essential element of the crime.

       The amended information charging Cruz with rendering criminal

assistance in the first degree did not set forth all of the essential elements of the

crime, as declared by our Supreme Court. Therefore, the information fails the

first prong of the Korsvik test, was prejudicial to Cruz, and was thereby

constitutionally deficient. Accordingly, Cruz's conviction of rendering criminal

assistance in the first degree must be reversed and the cause remanded to the

trial court for dismissal of the charge without prejudice.

                                          B

       Because we hold that the amended information was constitutionally

deficient, we need not reach Cruz's contention regarding his exceptional

sentence. The reversal of the conviction for rendering criminal assistance in the

first degree renders the sentencing issue moot. We thus proceed to Cruz's

statement of additional grounds.

                                          C

       In his statement of additional grounds for review, filed pursuant to RAP

10.10, Cruz personally asserts several additional claims.

       Cruz first asserts that his offender score was incorrectly calculated.

Because we reverse the conviction for rendering criminal assistance in the first

degree, this issue, like the exceptional sentencing issue, is moot.



                                         -43-
No. 77930-3-1144


        It is somewhat difficult to determine what Cruz asserts as his second

additional ground. Without presenting any argument that his convictions violated

the double jeopardy clause of the Fifth Amendment to the United States

Constitution, Cruz cites to case law interpreting the clause. He does not actually

assert that any particular conviction or charges violated the double jeopardy

clause, and it is apparent that his convictions do not, in fact, run afoul of the

constitutional prohibition. He has not established a basis for appellate relief.

        Cruz next asserts a claim of prosecutorial misconduct, premised on an

assertion of improper statements made by the prosecutor during trial. To resolve

such a claim, we first inquire whether the prosecutor made improper comments,

then, if such comments were made, we inquire as to whether they were

prejudicial to the defendant. State v. Lindsay, 180 Wn.2d 423,431, 326 P.3d

125(2014). "If the defendant did not object at trial, the defendant is deemed to

have waived any error, unless ... the defendant show[s] 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 likelihood of affecting the

jury verdict.'" Emery, 174 Wn.2d at 760-61 (quoting Thomerson, 172 Wn.2d at

455).

        Here, Cruz's contention of prosecutorial misconduct fails because none of

the statements he avers to be misconduct actually constitute misconduct.

Furthermore, Cruz failed to object to any of the statements at trial, and does not

assert that any misconduct could not have been cured by an instruction to the

jury. Instead, Cruz asserts that the evidence referenced by the prosecutor was



                                         -44-
No. 77930-3-1/45


"phony." But Cruz's disdain for the evidence does not establish that the

prosecutor engaged in misconduct by referencing such evidence during closing

argument. Cruz's assertion of prosecutorial misconduct fails.

       Nothing in Cruz's statement of additional grounds establishes a basis for

appellate relief.

                                         IV

       The judgment entered in State v. Pry is affirmed.

       The judgment entered in State v. Davis is affirmed.

       Cruz's conviction of rendering criminal assistance in the first degree is

reversed and the cause is remanded to the trial court with direction to dismiss the

charge without prejudice. Cruz's other convictions remain undisturbed. State v.

Cruz is remanded to the trial court for resentencing.




We concur:


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                                        -45-
