       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 72004-0-1
                    Respondent,
                                                DIVISION ONE
              v.



RICHARD ARTHUR GRANT,                           UNPUBLISHED OPINION

                    Appellant.                  FILED: November 23, 2015



      Becker, J. — A prosecutor may not impugn defense counsel's integrity by

implying deception or dishonesty on his part. But here, the prosecutor's

reference to "Alice's rabbit hole" was a proper argument that the defendant's

absence-of-evidence argument was unfounded. We reject appellant's claim of

prosecutorial misconduct.

      Appellant Richard Grant was convicted of two counts of possession of

methamphetamine at separate jury trials. He was found guilty of count 1 on

March 27, 2014. He was found guilty of count 2 on April 2, 2014. On appeal,

Grant contends that both convictions must be reversed because of prosecutorial

misconduct.

      To prevail on a claim of prosecutorial misconduct, the defendant bears the

burden of showing both improper conduct and resulting prejudice. State v.

McKenzie, 157 Wn.2d 44, 52, 134 P3d 221 (2006). Prejudice exists only where
No. 72004-0-1/2



there is a substantial likelihood that the misconduct affected the jury's verdict.

McKenzie, 157 Wn.2d at 52. We review a prosecutor's closing arguments in the

context of the total argument, the issues in the case, the evidence addressed in

the argument and the jury instructions. McKenzie, 157 Wn.2d at 52. Failure to

object to alleged prosecutorial misconduct at trial waives any error unless the

misconduct is so flagrant and ill-intentioned that no instruction could have cured

the prejudice. State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).

       A prosecutor may not impugn defense counsel's integrity by implying

wrongful deception or dishonesty on the part of defense counsel. See, e.g..

State v. Thorgerson, 172 Wn.2d 438, 451-52, 258 P.3d 43 (2011) (prosecutor's

reference to defense's presentation as "'bogus'" and involving "'sleight of hand'"

improper because it implied deception or dishonesty); State v. Lindsay, 180

Wn.2d 423, 433-34, 326 P.3d 125 (2014) (prosecutor's reference to defense's

closing argument as a "'crock'" was improper). But where the defense raises

lack or absence of evidence in closing, the prosecutor may argue in rebuttal that

such argument is unfounded. See, e.g., State v. Guizzotti. 60 Wn. App. 289, 298,

803 P.2d 808 (defendant argued that victim's failure to report rape to authorities

made her less credible; prosecutor's description of argument as '"smoke"' and an

"attempt to confuse the evidence" not improper because he was arguing that

defense's argument was unfounded), review denied, 116 Wn.2d 1026 (1991).

       First, Grant claims that the prosecutor committed misconduct at the trial

on count 2 when he warned the jury against following the defense "down Alice's

rabbit hole." At this trial, Grant argued in closing that the State should have
No. 72004-0-1/3



provided a laundry list of additional evidence, including a photograph or video of

Grant with the drugs; an audio recording; a written statement; DNA

(deoxyribonucleic acid) and fingerprint evidence; a corroborating witness; a

warrant; and police phone logs. In rebuttal, the prosecutor responded that the

jury should be satisfied with the evidence that had been presented, rather than

be dismayed by the lack of other evidence:

              So if you want to follow the defense down Alice's rabbit hole
       and start thinking about all the possible things that could have been
       provided, you are going to be looking at an infinite number of
       possibilities, none of which are reasonable in the circumstances.
              What you should be worried with in this case is the evidence
       that has been presented, the fact that you have the actual
       methamphetamine, the container, the meth pipe, all of which were
       taken from the defendant on that day. There is no reason to doubt
       the credibility of the officers.

       Grant argues that the prosecutor's reference to "down Alice's rabbit hole"

improperly implied deception and unfair tactics by defense counsel. But Grant

failed to object. The remark was not so flagrant and ill-intentioned that no

instruction could have cured the prejudice. Thus, the error was waived.

Belgarde, 110 Wn.2d at 507.

       Even assuming the objection was preserved, as a literary reference

"Alice's rabbit hole" does not imply deceit or trickery. Rather, it implies a descent

from reality into absurdity. The comment did not refer to defense counsel

personally but rather to the irrationality of counsel's argument that the State

lacked evidence that Grant possessed methamphetamine. By referring to

"Alice's rabbit hole," the prosecutor suggested that any hypothetical list of absent

evidence was infinite and thus acquittal on this basis would be absurd. The point
No. 72004-0-1/4



of the argument was that because the State had presented the actual

methamphetamine and its container and accompanying pipe that it had found in

Grant's possession, additional corroborating evidence was unnecessary. As in

Guizzotti, the prosecutor was pointing out that the defendant's argument was

unfounded. Grant has failed to show any prosecutorial misconduct at the trial for

count 2.


       Grant also argues, and the State concedes, that count 1 must be reversed

due to prosecutorial misconduct. At trial for count 1, the prosecutor argued in

rebuttal that the only way the jury could find the evidence insufficient to convict

was if jurors believed that the police officer lied about finding the drugs in Grant's

possession. Grant claims that this argument constitutes prejudicial misconduct

incurable by a jury instruction and thus the trial judge erred in denying his motion

for a mistrial. The State concedes under State v. Fleming, 83 Wn. App. 209, 213,

912 P.2d 1076 (1996) (prosecutor may not argue that in order to acquit a

defendant, the jury must find that the State's witnesses are lying), review denied,

131 Wn.2d 1018 (1997). We accept the State's concession.

       Last, Grant argues, and the State concedes, that Grant's sentence was

based on an offender score that mistakenly included a count the State had

dismissed. We accept the State's concession that at a minimum, resentencing is

required. Even though the standard range may remain the same, it is not clear

that the trial court would impose the same sentence for count 2 alone.

       Grant's conviction for count 2 is affirmed. His conviction for count 1 is

reversed.
No. 72004-0-1/5




                  l^trcfeff,
WE CONCUR:




       £*J_ J      ^,^'




                               ro
                               CO




                               c:;
