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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

GREGORY ALLAN MCMORRIS,

Appellant.

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No. 78949-0-I

DIVISION ONE

UNPUBLISHED OPINION

ANDRUS, A.C.J. — Gregory Allan McMorris challenges his jury conviction for 

theft of a motor vehicle, contending the prosecutor’s misconduct during closing 

argument deprived him of his right to a fair trial. We conclude the court’s 

instructions cured any possible prejudice caused by the prosecutor’s improper 

statements and affirm.

FACTS

On July 9, 2017, Sandra Todaro parked her Ford Explorer in the Quil Ceda 

Creek Casino parking lot, located on the Tulalip Indian Reservation, and entered 

the casino. The vehicle was loaded with materials for a swap meet the following 

weekend, including plywood fastened to the roof. While gaming inside, Todaro 

lost her keys and, after checking for them with security, discovered someone had 

stolen her Explorer.

Casino security reviewed security video footage, which revealed Todaro

dropping her keys as she left a slot machine. A woman, identified as Stephanie 
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Burger, picked up the keys and appeared to ask someone nearby about them. 

Then Burger walked away with the keys, spoke to a man in the casino, and gave 

him the keys. The man walked to the parking lot, and shortly thereafter, the 

security footage shows Todaro’s Explorer—identified by the plywood fastened to 

the roof—leaving the parking lot. The footage further revealed that the man to 

whom Burger gave the keys had arrived at the casino in a car with Burger and 

another woman. 

Tulalip Police Officer Ian Schmitz responded to the casino’s call about 

Todaro’s stolen Explorer. When Officer Schmitz completed his interview with 

Todaro, casino security called him to say they had located Burger as she was 

exiting the casino. Officer Schmitz took statements from Burger and her friend, 

Victoria Johnson. Officer Schmitz testified that he learned McMorris’s name from 

these statements and later identified McMorris in the security footage by matching 

his driver’s license photo. One of the women called Officer Schmitz later that 

evening, and based on the information he received from her, he contacted the 

Snohomish County Sheriff’s Office to assist him in searching for McMorris on 

property located in Stanwood, off the reservation. When Officer Schmitz stated, 

during his trial testimony, that the woman gave him a particular address, McMorris 

objected. The trial court sustained the hearsay objection and struck the evidence.

Snohomish County Sheriff Deputies Robert Schweitzer and Craig Hess 

went to the Stanwood address in the early morning hours of July 10, 2017. Neither 

deputy saw any sign of McMorris or the stolen Explorer. A few hours later, Deputy 

Hess returned to the Stanwood address and discovered Todaro’s Explorer hidden 
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behind the home, with the front and back license plates covered. Deputy Hess still 

did not see anyone in or around the house, but he heard the locks on the Explorer 

locking and unlocking, as though someone nearby was using the remote entry key 

fob. Deputy Hess called out to anyone who might be in earshot, asking for the 

keys, but when no one responded, he had the Explorer towed away. 

Todaro retrieved her Explorer from the tow yard later that morning. All of 

the items for the swap meet, including the plywood she had secured to the top of 

the vehicle, were missing, and the vehicle had sustained new damage. 

Deputy Schweitzer arrested McMorris for stealing the Explorer, and the 

State charged McMorris with one count of theft of a motor vehicle. While in the 

Snohomish County jail pending trial, McMorris called his father. McMorris was 

recorded saying:

I’m gonna sit in here because I’m doin’ easy time, Dad. And I might 

have to do a little time for this fucking shit I did. . . . fuckin’ those 

bitches . . . . that said I fucking did this shit . . . . Check this out, I 

might have to do some time for that, but I’m gonna come take care 

of my shit first.

At trial, the State presented the security footage and McMorris’s jail call, but 

neither Burger nor Johnson testified. Todaro testified to the events as described 

above, including the presence of new damage to her Explorer when she retrieved

it from the tow yard on July 10, 2017. Specifically, the driver’s side exterior mirror 

was torn off and the front left fender was smashed. 

During closing, McMorris argued the State failed to call Burger as a witness 

so there was no way of knowing what transpired between Burger and him on the 

security footage. Therefore, McMorris argued, there was nothing linking him to the 
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theft. In rebuttal, the prosecutor argued there was evidence linking McMorris to 

the theft—specifically, the evidence that one of the women had called Officer 

Schmitz, to give him McMorris’s address. But the trial court had excluded that 

evidence as hearsay. McMorris objected, and the trial court sustained the 

objection, telling the jury to disregard the prosecutor’s statement. Rebuttal 

continued:

[PROSECUTOR]: All right. You are aware that [O]fficer Schmitz 

spoke to these women. We are aware that Officer Schmitz –

[DEFENSE COUNSEL]: Your Honor, I would object. Counsel is 

asking the jury to speculate.

THE COURT: Sustained. Sustained.

[PROSECUTOR]: You are aware of where the deputies ended up, 

the address that they ended up, and you can use your common 

sense to –

[DEFENSE COUNSEL]: Your Honor.

At that point, the trial court had the jury retire to the jury room, and McMorris 

moved for a mistrial. The trial court told the prosecutor, who appeared confused 

by the evidentiary ruling, that he could not base an argument on evidence the court 

had excluded in trial. 

You were not able to present any competent evidence of whatever 

those ladies told anybody because they were not available, and 

whatever they had to say was hearsay. I am not going to allow you 

to suggest to the jury what it was that they said, because that’s just 

not proper. And that’s exactly what you’re trying to do, is to try to let 

the jury know that those witnesses provided information to the 

officers, which is hearsay. It’s not admissible for the truth of the 

matter asserted.

The court indicated the prosecutor was very close to a mistrial, telling him his 

argument was improper. When the jury reentered, the court gave this instruction—
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“I’m striking the last comment made by [the prosecutor], and you’re to disregard 

it.” The court’s instructions to the jury also included the standard instruction that 

the attorneys’ comments are not evidence or the law and that the jury has to base 

its decision on the evidence presented at trial and on the instructions given to them 

by the court.

The jury convicted McMorris as charged. McMorris renewed his motion for 

a mistrial, which the trial court denied. The trial court sentenced McMorris to nine 

months confinement with credit for time served.

McMorris appeals.

ANALYSIS

McMorris argues the prosecutor’s improper reference to excluded evidence 

during closing argument denied him a fair trial. He contends there is a substantial 

likelihood the improper argument affected the jury’s verdict because the State’s 

case against him was so weak. He further argues the errors could not be remedied 

through the court’s curative instructions because the prosecutor made the

improper statements during rebuttal. While we agree the prosecutor’s statements 

in rebuttal were improper, we conclude the court’s subsequent instructions cured 

any prejudice.

“‘Allegations of prosecutorial misconduct are reviewed under an abuse of 

discretion standard.’” State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014)

(quoting State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995)). The 

defendant bears the burden of showing that the comments were improper and, if 

so, whether the improper comments caused prejudice. State v. Emery, 174 Wn.2d 
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741, 756, 278 P.3d 653 (2012); State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940

(2008). Because McMorris objected to the prosecutor’s statements at trial and 

moved for a mistrial, McMorris must show that the prosecutor’s misconduct 

resulted in prejudice that had a substantial likelihood of affecting the jury’s verdict. 

Emery, 174 Wn.2d at 760. “In analyzing prejudice, we do not look at the comments 

in isolation, but in the context of the total argument, the issues in the case, the 

evidence, and the instructions given to the jury.” Warren, 165 Wn.2d at 28.

“‘Misconduct is to be judged not so much by what was said or done as by 

the effect which is likely to flow therefrom.’” Emery, 174 Wn.2d at 762 (quoting

State v. Navone, 186 Wash. 532, 538, 58 P.2d 1208 (1936)). Focusing on the 

effect of the prosecutor’s conduct is crucial because even “certainly flagrant” 

conduct may be cured in light of the context of the total argument, issues, evidence, 

and jury instructions. Id. at 762 n.13 (quoting Warren, 165 Wn.2d at 27). “‘The 

criterion always is, has such a feeling of prejudice been engendered or located in 

the minds of the jury as to prevent a [defendant] from having a fair trial?’” Id. at 

762 (alteration in original) (quoting Slattery v. City of Seattle, 169 Wash. 144, 148, 

13 P.2d 464 (1932)).

We begin by analyzing the propriety of the prosecutor’s comments. While 

a prosecuting attorney has wide latitude during closing argument to draw and 

express reasonable inferences from the evidence, State v. Gentry, 125 Wn.2d 570, 

641, 888 P.2d 1105 (1995), it is improper for a prosecutor to argue from facts not 

in evidence, State v. Perkins, 97 Wn. App. 453, 459, 983 P.2d 1177 (1999).

McMorris challenges the following argument by the prosecutor in rebuttal:
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[PROSECUTOR]: It’s worth discussing, the possibility that Ms. 

Burger and Ms. Johnson -- and I would suggest Ms. Johnson 

somehow might have been the one to disappear and take this 

vehicle, even though, again, what you saw from the surveillance 

doesn’t line up with that at all. So Ms. Burger must have then, after 

leaving at 12:30, and mind you, they just had been speaking with 

Officer Schmitz, as you heard, and they are the ones that told Officer 

Schmitz the address that Officer Schmitz relayed to the sheriff’s --

[DEFENSE COUNSEL]: Your Honor, I would object and ask that that 

be stricken.

THE COURT: I’m sustaining that objection. I’m striking that, and 

telling the jury to disregard that statement.

[PROSECUTOR]: All right. You are aware that [O]fficer Schmitz 

spoke to these women. We are aware that Officer Schmitz –

[DEFENSE COUNSEL]: Your Honor, I would object. Counsel is 

asking the jury to speculate.

THE COURT: Sustained. Sustained.

[PROSECUTOR]: You are aware of where the deputies ended up, 

the address that they ended up, and you can use your common 

sense to –

[DEFENSE COUNSEL]: Your Honor.

(Emphasis added.) 

The State concedes the first statement’s impropriety. It contends, however, 

that the other two statements were supported by the evidence and that the 

prosecutor was arguing permissible inferences. The other two statements were 

supported by the evidence, but we disagree that the prosecutor’s attempted 

argument from these statements was a permissible inference. 

The cases on which the State relies are distinguishable as neither case 

involved a prosecutor asking a jury to infer—from the fact that a police officer spoke 

with a witness and thereafter arrested a defendant—that the witness told police 
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the defendant had committed the crime. In re Pers. Restraint of Phelps, 190 Wn.2d 

155, 167-68, 410 P.3d 1142 (2018) (in rape of child case, prosecutor argued 

defendant’s conduct constituted “grooming” of victim; characterization of 

defendant’s relationship with victim was permissible inference drawn from 

admitted evidence); Perkins, 97 Wn. App. at 459-60 (permissible for prosecutor to 

argue that, given the likely street value of the amount of methamphetamine found 

in defendant’s car, it was reasonable to infer defendant’s possession was not 

unwitting).

Here, the prosecutor wanted the jury to infer—from the fact that Burger or 

Johnson called Officer Schmitz and the fact that deputies later showed up at 

McMorris’s property—that the women told Officer Schmitz where to find McMorris 

and the stolen vehicle. But neither Burger nor Johnson testified at trial. Any 

inference about the content of the conversation would have been unreasonable 

because it was not based on any admitted evidence. For this reason, we conclude

the prosecutor’s statements were improper as well.

Nevertheless, we conclude McMorris has failed to demonstrate a 

substantial likelihood that the prosecutor’s statements affected the jury’s verdict.

The evidence showed McMorris knew Burger and Johnson because he arrived at 

the casino with them. The security footage showed Burger picking up Todaro’s 

keys and then handing them to McMorris. Then McMorris is seen exiting the 

casino with the keys, and a few minutes later, an Explorer closely resembling 

Todaro’s can be seen leaving the casino parking lot. Several hours later, sheriff’s 

deputies recovered Todaro’s Explorer, hidden on property McMorris admitted
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belonged to him. And lastly, while in custody on only one charge—the theft of the 

Explorer—McMorris admitted to his father in a recorded jail call that he might have 

to do some time for what he did. 

McMorris objected to each of the prosecutor’s improper statements in 

closing. The court sustained the objections and instructed the jury to disregard the 

statements. Juries are presumed to follow instructions, including the instructions

that counsel’s arguments are not evidence and to disregard improper evidence. 

Warren, 165 Wn.2d at 29; see also State v. Dye, 178 Wn.2d 541, 556, 309 P.3d 

1192 (2013); State v. Russell, 125 Wn.2d 24, 84, 882 P.2d 747 (1994). Given the

evidence of McMorris’s involvement in the theft, we conclude the court’s 

instructions to the jury cured any possible prejudice from the improper statements 

and there is little likelihood the improper statements affected the jury’s verdict. See

Warren, 165 Wn.2d at 28 & n.5 (holding no prejudice where prosecutor’s “flagrant” 

misstatement of reasonable doubt standard cured by trial court instruction).

McMorris argues the trial court’s instructions were insufficient to cure any 

prejudice. We are unpersuaded by this argument.

The cases on which McMorris relies are distinguishable.

1 In State v. 

Copeland, 130 Wn.2d 244, 284-85, 922 P.2d 1304 (1996), our Supreme Court held 

a curative instruction was sufficient to alleviate any possible prejudice caused by 

a prosecutor improperly cross-examining a key defense witness by mentioning 

horrific details of that witness’s prior crimes. While the questions were deemed an 

 1 Neither State v. Escalona, 49 Wn. App. 251, 252, 256, 742 P.2d 190 (1987), nor Krulewitch v. 

United States, 336 U.S. 440, 442-45, 453, 69 S. Ct. 716, 93 L. Ed. 790 (1949), involve prosecutorial 

misconduct. As a result, they are inapplicable and McMorris’s reliance on them is misplaced.
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improper attempt to influence the jury’s perception of the witness and his 

testimony, the court nevertheless held that, in light of the circumstances of the 

case, the curative instruction alleviated any prejudice. Id. at 285. The crossexamination questions in Copeland were far more egregious and potentially 

prejudicial than the prosecutor’s closing arguments here.

And in State v. Belgarde, 110 Wn.2d 504, 508-10, 755 P.2d 174 (1988), 

during a murder trial, the prosecutor said the defendant belonged to the American 

Indian Movement (AIM), a “group of butchers and madmen who killed 

indiscriminately.” Id. at 508. The prosecutor went on to compare AIM members 

to “Kadafi,” the former dictator of Libya, and to Sean Finn of the Irish Republican 

Army (IRA). Id. The court held these statements, to which the defendant did not 

object, introduced facts not in evidence and were so highly inflammatory and 

prejudicial that retrial was the only remedy. Id. The ruling was based on the 

substantial likelihood that no curative instruction could have “erased the fear and 

revulsion jurors would have felt if they had believed the prosecutor’s description of 

the Indians involved in AIM.” Id. 

McMorris cannot credibly argue his case is analogous to the circumstances 

in Belgarde. The prosecutor made three statements about Officer Schmitz’s 

interaction with Burger and Johnson; he did not make inflammatory comments 

about McMorris’s past crimes or any links to any organizations potentially 

perceived by jurors as violent.

Given the evidence against McMorris, he has failed to show that he was 

prejudiced by the prosecutor’s comments. In light of all the circumstances, we 
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conclude any possible prejudice resulting from the improper argument was cured 

by the court’s instruction. Because there was no prejudice affecting the jury’s 

verdict, the court did not abuse its discretion by denying McMorris’s motion for a 

mistrial. Emery, 174 Wn.2d at 765 (review a trial court’s decision on a motion for 

mistrial for an abuse of discretion; abuse exists only “‘“when no reasonable judge 

would have reached the same conclusion”’”) (quoting State v. Hopson, 113 Wn.2d 

273, 284, 778 P.2d 1014 (1989) (quoting Sofie v. Fibreboard Corp., 112 Wn.2d 

636, 667, 771 P.2d 711, 780 P.2d 260 (1989))). 

Affirmed.

WE CONCUR: