### FILED February4, 2014 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 30892-8-111 Respondent, ) ) 

### v. ) ) ROSEMARIEFAIRLEY, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, 

### J.

- Rose Fairley appealsher conviction ofsecond degree burglary, arguing thatprosecutorial misconduct during closing argumentdenied her a fair trial. The State concedes thatthe prosecutor's statement aboutwhich Ms. Fairley complains
was likely errorbut argues thatthe statement-towhich notimely objectionwas made-­
was not flagrant, ill-intentioned, orprejudicial. The ill-considered statementbytheprosecutorwas curable had an objection been made. We affmn. FACTS AND PROCEDURAL BACKGROUND Late one evening ColinDunbarreceived a call notifying him thatthe burglar alarm atthe Spokane church where he served as pastorhadbeen set off. Thinking a

### No. 30892-8-111 State v. Fairley
church member might have tripped the alarm, he drove to the church to investigate rather than immediately call police. He went inside and called out several times, asking who
was there and offering help. Receiving no response, he went to the basement and again loudly called out. After calling out approximately sixtimes, heheard a sound that led him to believe that someone, while notrespondingto him, was inside. Atthatpoint he called the police. Police arrived, including one officerwith the K-9 unit who had a police dog with him. From the main entry ofthe church, the officer announcedhis presence and warned that ifanyone inside did not come out, the dog would be sent in. After calling outtwice andreceiving no response, the officer sent in the dog, which found Ms. Fairley and a male companion in the basement. Both were arrested. Ms. Fairley told the arresting officer that she was stranded from Walla Walla and
was looking for money to get back home. She and the man with her, whom she had met at a bus stop, hadbeen walking through the neighborhood when they came upon the church. She had heard churches provide assistance to the needy and thought someone at the church might help her. She tried the handle on a door on the side ofthe building and found it unlocked, so she and her companion went inside, planning to stay in the basement until someone arrived in the morning. Ms. Fairley admittedthat the burglar alarm had sounded afterthey entered and her male companion had done somethingto the alarm box. Pastor Dunbar showed officers 2No. 30892-8-111 State v. Fairley
that the alarm box and panel for the sprinkler system were damaged, wires were pulled out, the circuit breakerpanel had been opened, and some ofthe breakers had been improperly turned off. Itwas later determined that $250 in damage had been done. Ms. Fairley admitted that she did not have permission to be inside the building and she knew 

# t J no one at the church. 

# I The State charged Ms. Fairley with second degree burglary. At trial, the 

# I prosecutor argued during closing that Ms. Fairley enteredthe church intending on "selfhelp" by committing theft, or at minimum, malicious mischief. Report ofProceedings 

# ! (RP) at 93-95. In the course ofarguing that the facts support a reasonable beliefthather intent was to commit theft, he toldthejury: Is it reasonable that she wanted to commit theft, they want to silence the alarm and continue onto do theft, get some money from the church[?] 1, as a representative of the State, say it isprobably reasonable because she had so many opportunities to say, Okay, I am here; this is the reason I am here. Instead, she was hiding, because she knew that they got interrupted doing a burglary. RP at 101 (emphasis added). Defense counsel did not object to the prosecutor's argument. Thejury found Ms. Fairley gUilty. She appeals. ARGUMENT The sole assignment oferror on appeal is to the prosecutor's argument invoking his status as "arepresentative ofthe State."

3No. 30892-8-111 

### State 

### v. Fairley
A fair trial is a fundamental liberty securedby the Sixth and Fourteenth Amendments tothe United States Constitution and article I, section 22 ofthe Washington State Constitution. 

### Estelle v. 

### Williams, 425 U.S. 501, 503,96 S. Ct. 1691,48 L. Ed. 2d 126 (1976). Prosecutorial misconduct may deny a defendant's constitutional rightto a fair trial. 

### State 

### v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213 (1984). It is grounds for reversal ifthe prosecuting attorney's conduct was both improper and prejudicial in the context ofthe entire record and circumstances at trial. 

### State v. 

### Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003). The defendant bears the burden ofproving both. 

### State v. 

### Emery, 174 Wn.2d 741,756,278 P.3d 653 (2012). When defense counsel fails to object to alleged improper conduct itconstitutes a waiver ofanyprosecutorial misconduct unless the remark was so flagrant and 

### ill intentioned that no curative instruction would have obviatedthe prejudice itcreated. 

### State v. 

### O'Donnell, 142 Wn. App. 314,328, 174 P.3d 1205 (2007). Toprevail on appeal,
a defendant who did not object inthe trial courtmust show that "(1) 'no curative instruction would have obviated anyprejudicial effect onthejury' and (2) the misconduct resulted in prejudice that'had a substantial likelihood ofaffecting thejuryverdict.'" 

### Emery, 174 Wn.2d at 761 (quoting

### State v. 

### Thorgerson, 172 Wn.2d 438,455,258 P.3d 43 (2011)). "'A [flairtrial certainly implies a trial in which the attorney representing the state does notthrow the prestige ofhis public office
... andthe expression ofhis own beliefof 4No. 30892-8-III State 

### v. Fairley guilt into the scales against the accused.'" State v. Monday, 171 Wn.2d 667, 677, 257 P.3d 551 (2011) (alterations in original) (internal quotations marks omitted) (quoting State v. Case, 49 Wn.2d 66, 71, 298 P.2d 500 (1956)). The State concedes thatthe prosecutor's statement was "likely error." Br. ofResp't at 2. We would characterize itas . "clearly error." The outcome on appeal turns on whether a timely objection and request for instruction would have cured any prejudice. Ms. Fairley asks us to conclude that a prosecutor's disregard ofa well-established rule is flagrant and ill-intentioned conduct per se, andthat the rule against exploitingthe position ofrepresentative ofthe State during closing argument is a well-established rule. Br. ofAppellant at 7 (citingState v. Anderson, 153 Wn. App. 417, 433-34, 220 P.3d 1273 (2009) (Quinn-Brintnall, 

### J., concurring in theresult)). We agree thatthe rule against exploiting the position ofrepresentative ofthe State is well established. Butwe will not disregard the defendant's obligation to make a timely objection where prejudice can be cured. Ifmisconduct occurs, "thetrial court must be promptly asked to correct it. Counsel may notremain silent, speculating upon a favorable verdict, and then, when it is adverse, use the claimed misconduct as a life preserver on ... appeal." Jones v. Hogan, 56 Wn.2d 23,27,351 P.2d 153(1960). Ms. Fairley argues, as she must, that prejudice from the prosecutor's statement
was incurable. We disagree. The statement was, frankly, odd. The interjection by the prosecutor ofhis status came across as a nonsequitur; it was not persuasive. It has been 

### 5No.30892-8-II1 

### State v. Fairley
observedthatthe failure to make an objection orrequest a curative instruction in response to argument by a prosecutor strongly suggests that the argument did not appear unduly prejudicial to a defendant in the context oftrial. 

### E.g., State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). We are satisfied that was the casehere. No possible problem was created bythe statement that an objection, with or without a request for a curative instruction, would not have cured. The prosecutor's statement was so clearly objectionable yet so marginally effective that the defense probably made a strategic judgmentnotto object. Affirmed. A majority ofthe panel has determined thatthis opinion will not be printed in the Washington Appellate Reports but 

### itwill be filed for public record pursuantto RCW 2.06.040.

Sidrloway, J. WE CONCUR:
Korsmo, C.J.

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