               IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                   DIVISION ONE

THE STATE OF WASHINGTON,                         No. 77803-0-1

                         Respondent,

                   V.                            UNPUBLISHED OPINION

MERLIN N. VILLANUEVA-ROSALES,

                         Appellant.              FILED: July 22, 2019

         SCHINDLER, J. — Merlin N. Villanueva-Rosales seeks reversal of the jury

conviction for residential burglary. Villanueva-Rosales argues that in closing argument,

the prosecutor improperly commented on his constitutional right to remain silent and his

right to testify. Because the record does not support his argument, we affirm.

                                          FACTS

         Amos Martin-Johnson lives at a house on South Orcas Street in Seattle. Around

11:20 p.m. on May 3,2017, Martin-Johnson arrived home after work and found his

"inside cat" outdoors. After Martin-Johnson entered the home through the locked front

door, he heard voices coming from the basement. Martin-Johnson went back outside

through the front door and around the side of the house to the exterior basement entry.

The doorjamb and the lock were damaged and the basement door was "cracked open a

little bit."
No. 77803-0-1/2

       Martin-Johnson entered the basement and saw a man, later identified as Merlin

N. Villanueva-Rosales, standing at the laundry room counter facing Martin-Johnson

while another man was rifling through Martin-Johnson's "clothes" and "grabbing stuff."

Martin-Johnson asked them,"'Hey, guys, what are you guys doing.'" Villanueva-

Rosales responded,"'Hey, we're just looking. We're kind of lost. We're not doing

nothing wrong.'" The other man said nothing.

       Martin-Johnson said, "'Oh, yeah? Right. . . . Well, I got some people outside for

you guys, so you guys better get the heck out of here.'" Villanueva-Rosales responded

again, "'No, we're just lost, man. We're just looking around. We didn't know.'"

       Villanueva-Rosales and the other man walked past Martin-Johnson out the

basement door. Martin-Johnson called 911 and followed them "up the hill." The other

man ran away. Villanueva-Rosales "turns" and "starts running up the hill" behind the

other man. Martin-Johnson ran after the men. Martin-Johnson was able to catch up

with Villanueva-Rosales. Martin-Johnson "grabbed his left arm to get him to stop."

Villanueva-Rosales "stepped back" and stated, "I'm done, I'm done," and sat down.

      After walking back to Martin-Johnson's house, Martin-Johnson asked Villanueva-

Rosales how he entered the house. Villanueva-Rosales pointed to the exterior

basement door.

      After the police arrived, Martin-Johnson went back into the basement. Near

where Villanueva-Rosales was standing when Martin-Johnson first saw him, "within

arm's reach," was a black "smiley face" backpack that did not belong to him or his

roommate. The backpack contained Martin-Johnson's gaming electronics from

upstairs.




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No. 77803-0-1/3

       The State charged Villanueva-Rosales with residential burglary in violation of

RCW 9A.52.025.

       The State called two Seattle Police Department officers to testify at trial, John

Marion and Landon Steiger. Officer Marion testified he arrested Villanueva-Rosales,

secured the scene, and began investigating and collecting evidence. During Officer

Steiger's investigation, he noticed "several items strewn across the floor" of the

basement, including electronics. The doorjamb on the exterior basement door

sustained damage and had "pry marks" on it, as did the locking mechanism on the door.

Neither officer mentioned any pre-arrest or post-arrest statements made by Villanueva-

Rosales.

       Villanueva-Rosales testified. Villanueva-Rosales said that at around 9:00 a.m.

on May 3, 2017, a man hired him to perform moving and cleaning work. The man told

Villanueva-Rosales to meet him at a park at 9:00 p.m. that night. When Villanueva-

Rosales and the man arrived at the house, the man tried unsuccessfully to open the

front door without a key. The man went around the side of the house and told

Villanueva-Rosales to come into the home through the exterior basement door.

Villanueva-Rosales testified the man instructed him to wait in the basement while he

went upstairs. After a few minutes, the man returned with a bag full of items and put

them inside a backpack "right next to where" Villanueva-Rosales was standing.

       Villanueva-Rosales testified that when Martin-Johnson came into the basement,

he said, "'What are you doing'"and told them to leave. Villanueva-Rosales left.

Villanueva-Rosales said he "crossed the street fast" but did not run away. Villanueva-

Rosales testified that he agreed to go back to the house with Martin-Johnson because




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No. 77803-0-1/4


he "didn't know what was happening" and had no reason to believe the person who

hired him was not supposed to be there.

       Martin-Johnson testified in rebuttal. Martin-Johnson testified that after he

entered the basement and asked the two men what they were doing, Villanueva-

Rosales said "very fast,""'Hey, man. Sorry, sorry, we're lost.'" Martin-Johnson

testified that Villanueva-Rosales never uttered the words "laborer," "mover," or

"cleaner." Martin-Johnson testified that he spent several minutes with Villanueva-

Rosales before the police arrived and he said nothing about someone hiring him for a

job. The jury convicted Villanueva-Rosales of residential burglary.

                                          ANALYSIS

       Villanueva-Rosales asserts prosecutorial misconduct during closing argument

deprived him of the right to a fair trial. "The right to a fair trial is a fundamental liberty

secured by the Sixth and Fourteenth Amendments to the United States Constitution and

article!, section 22 of the Washington State Constitution." In re Pers. Restraint of

Glasmann, 175 Wn.2d 696, 703, 286 P.3d 673 (2012).

       We review allegations of prosecutorial misconduct during closing argument for

abuse of discretion. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). To

establish prosecutorial misconduct, Villanueva-Rosales must show that the prosecutor's

statements were improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278

P.3d 653(2012). "Any allegedly improper statement should be viewed within the

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

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

559, 578, 79 P.3d 432 (2003). Improper statements followed by a proper objection are




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No. 77803-0-1/5

prejudicial if the statement had a substantial likelihood of affecting the jury's verdict.

Emery, 174 Wn.2d at 760-61. However, if the defendant does not object, any error is

waived unless the misconduct was so flagrant and ill-intentioned that an instruction

could not have cured the resulting prejudice. Emery, 174 Wn.2d at 760-61.

       Villanueva-Rosales claims that during closing argument, the prosecutor

improperly commented on his constitutional right to testify and the right to silence. The

Fifth Amendment to the United States Constitution states, in pertinent part, that no

person "shall be compelled in any criminal case to be a witness against himself." This

provision applies to the states through the due process clause of the Fourteenth

Amendment. Malloy v. Hocian, 378 U.S. 1, 8,84 S. Ct. 1489, 12 L. Ed. 2d 653(1964).

Article!, section 9 to the Washington State Constitution states,"No person shall be

compelled in any criminal case to give evidence against himself." The right against self-

incrimination "prohibits the State from forcing the defendant to testify." State v. Easter,

130 Wn.2d 228, 236, 922 P.2d 1285 (1996). "[T]he State may not elicit comments from

witnesses or make closing arguments relating to a defendant's silence to infer guilt from

such silence." Easter, 130 Wn.2d at 236.

       Here, the uncontroverted record establishes Villanueva-Rosales testified and the

prosecutor did not comment during cross-examination or closing argument on

Villanueva-Rosales' silence or constitutional right to testify. During closing argument,

the prosecutor and defense attorney focused on the conflicting testimony and credibility

of Martin-Johnson and Villanueva-Rosales. The prosecutor has wide-latitude in closing

argument to draw reasonable inferences from the evidence and express those

inferences to the jury. State v. Maciers, 164 Wn.2d 174, 192, 189 P.3d 126 (2008).




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No. 77803-0-1/6

"Thus, prosecutors may argue inferences from the evidence, including inferences as to

why the jury would want to believe one witness over another." State v. Copeland, 130

Wn.2d 244, 290, 922 P.2d 1304 (1996). It is not improper in closing argument for a

prosecutor to comment upon evidence that may bear upon a defendant's credibility.

State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281 (1983).

       During closing argument, the prosecutor argued the evidence showed the

backpack was "found in the house in arm's reach" of Villanueva-Rosales with

electronics taken from upstairs. The prosecutor argued that when Martin-Johnson

walked into the basement, "the unidentified gentleman is rifling through items."

              Now,[Villanueva-Rosales][is] not seen rifling through. I submit to
      you that's because he's just been caught. He sees Mr. [Martin-]Johnson.
      He's not going to continue what he's doing. He stops, he freezes. Mr.
      [Martin-]Johnson says,"Hey, guys."
              And he says the first thing he can think of as an excuse, because
      he knows he's caught. He says, "We're just lost. We're just lost." He's
      been confronted by an unknown person, and his first response is "We're
      just lost." It wasn't "Who are you? I'm doing a job." It was "[I] am lost."
      And then he says,"We don't want any trouble."
              Is that what someone, who's been hired for a moving job, a
      cleaning job, who is innocently in a house, says?

      The prosecutor argued Villanueva-Rosales' testimony was not credible:

      When you add [the facts] all together — flight; a bagful of small, easily
      pawned or traded electronics in a backpack next to Mr. Villanueva-
      Rosales' feet; a story about being hired for a job that is not articulated that
      day when you are confronted by a person in a house, just "I'm lost";
      followed by flight — the reasonable inference is Mr. Villanueva-Rosales
      and that third party were there to commit burglary.

             Ask yourselves, which is the more reasonable version of events?

      During defense counsel's closing argument, he explicitly states there are "two

sets of competing inferences being drawn from the same facts." Defense counsel




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No. 77803-0-1/7

argues the "[w]e're lost" statement was insignificant and attacked Martin-Johnson's

credibility.

               Also, a big deal is made about the statement allegedly made by my
       client, "I'm lost." And Mr. [Martin-]Johnson told the officers that it was
       they, implying that both were speaking, but yesterday the testimony
       seemed to shift a little bit, because he didn't really mean "they" when he
       told the officers "they."
               And in the heat of the moment where you have a language barrier
       and when you're about to make a call or are in the midst of making a call
       and your attention is split, what can that do to memory to begin with?
                Now, the State also made some — made quite a deal about what
       Mr. Villanueva[-Rosales] failed to say at the scene. In other words, he
       didn't volunteer the fact that he was cleaning or moving. But while in that
       basement, Mr. [Martin-]Johnson was not exactly inviting conversation or
       explanation. He said, "Get the F out. I've got friends outside." And he
       was loud and stern about it.

              Now, you are the sole judges of the credibility of the witnesses.
       What you have here is, in some cases, competing testimony. . . .
              To the extent there is a contradiction, then it's your — it's your job
       to decide the credibility of one witness versus the other.

        In rebuttal, the prosecutor noted Villanueva-Rosales made statements about

being "lost" and emphasized to the jury that "one of your primary jobs in this case is [to]

determine who was credible."

             [PROSECUTOR]: [It was not reasonable that] [t]his was all a big
       misunderstanding.
              Mr. Villanueva-Rosales was there to commit a burglary. He says
       now it was a moving job, it was a cleaning job. He did not say that that
       day.
             [DEFENSE COUNSEL]: Objection. Burden shifting.
              THE COURT: Overruled.
              [PROSECUTOR]: He did not say that that day. He did not tell Mr.
       [Martin-]Johnson,"Oh, my gosh, this is a huge mistake. I'm so sorry, I
       was here to do a job." Isn't that the first thing a person would say if they
       were in a situation like this? Isn't the first thing they would say is, "Oh, my
       gosh, I'm so sorry. Let me explain what happened"? That's not what
       happened.




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No. 77803-0-1/8

       A prosecutor is entitled to make a fair response to the defense attorney's closing

argument during rebuttal closing argument. In re Pers. Restraint of Caldellis, 187

Wn.2d 127, 143, 385 P.3d 135 (2016). A prosecutor may argue that evidence does not

support a defense theory and present a fair response to defense counsel's arguments.

State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994). And even clearly improper

remarks do not require reversal if they were invited by defense counsel and are in reply

to his statements, unless the remarks are not in pertinent reply or so prejudicial that a

curative instruction would be ineffective. Russell, 125 Wn.2d at 86.

       The case Villanueva-Rosales cites, State v. Martin, 171 Wn.2d 521, 252 P.3d

872 (2011), is inapposite. In Portuondo v. Aqard, 529 U.S. 61, 73, 120 S. Ct. 1119, 146

L. Ed. 2d 47 (2000), the United States Supreme Court held that a testifying defendant

should be treated as other witnesses are treated, observing that comments on a

defendant's opportunity to tailor his testimony is appropriate and "sometimes essential."

In Martin, our Washington Supreme Court concluded the Washington Constitution

provides greater protections than does the Sixth Amendment and expressly adopted the

standard articulated by Justice Ruth Ginsburg in her Portuondo dissent. Martin, 171

Wn.2d at 534-36.

       Justice Ginsburg approved the "carefully restrained and moderate position" taken

by the Second Circuit that allowed a prosecutor "at any stage of a trial to accuse a

defendant of tailoring specific elements of his testimony to fit with particular testimony

given by other witnesses," but would disallow tailoring arguments "where there is no

particular reason to believe that tailoring has occurred and where the defendant has no

opportunity to rebut the accusation." Portuondo, 529 U.S. at 77-78 (Ginsburg, J.,




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No. 77803-0-1/9

dissenting). Here, the prosecutor neither questioned Villanueva-Rosales on cross-

examination about tailoring his testimony nor argued tailoring in closing argument.

      We affirm the jury conviction of Villanueva-Rosales for residential burglary.




WE CONCUR:




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