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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
STATE OF WASHINGTON,Respondent.

V. JOEL ERNEST LEWIS and RICHARD MICKELSON, Appellants. No. 43658 - 2 -II Consolidated with No. 43748 -1 - II UNPUBLISHED OPINION

MAXA, J. — Joel E. Lewis and Richard Mickelson each appeal their convictions for 

### second degree assaultwhile armed with a deadly weapon, arguing that the prosecutor made 

### improper arguments during closing argument, counsel was ineffective for failing to object to the prosecutor' s arguments, and the cumulative effect ofthe claimed errors denied them a fair trial. In his statement of additional grounds for review (SAG), Mickelson also argues that his counsel 

### was ineffective forfailing to offer x - rays ofMickelson' s ribs as evidence ofself - defense andthat the bailiffviolated Mickelson's due process rights by allegedly checking the crime scene and 

### communicating her findings to thejury. We hold that (1) although the prosecutor' s arguments 

### were improper in three instances, the defendants waived any errors because they could have been
cured with an appropriate instruction; (2) counsel was not ineffective because not objecting to the prosecutor' s arguments may have been a legitimate trial strategy; ( 3) the cumulative effect ofNo. 43658 - 2 -II, consolidated with No. 43748 -1 - II the claimed errors did not warrant reversal; and (4) there is no evidence in the record that allows review ofthe errors claimed in Mickelson' s SAG. Accordingly,we affirm. FACTS 

### Nathaniel Abbett, Misty Rasmussen, Jaime Hadley, Lewis and Mickelson were friends who had known each otherfrom the time they were in school together. Abbett and Rasmussen had two children together as the result ofa seven - year romantic relationship. They eventually 

### separated and Rasmussen and the children moved in with Hadley, Rasmussen' s stepsister. Lewis . and Mickelson also lived in Hadley's home. On the evening of December 22, 2011, Abbett argued overthe telephone with 

### Rasmussen. Around midnight, Hadley drove Lewis and Mickelson to Abbett's house. Abbett 

### was outside and recognized Hadley' s car as it passed by his house. He decided to follow it in his own vehicle. Eventuallythe vehicles stopped, and Lewis and Mickelsonjumped out ofHadley's car and assaulted Abbett. Mickelson swung abaseball batthrough Abbett's partially rolled down driver -

side window and then crawled through the window and hit Abbett with his fists. Lewis broke the passenger - side window and struck Abbett with a baseball bat. Eventually, 

### Lewis told Mickelson to stop and warned thatthe police were coming. Lewis and Mickelson returned to Hadley' s car and left. As a result ofthe incident, Abbett suffered numerous lacerations to his face and there were significant amounts ofglass in his left ear. 

### The State charged Lewis and Mickelson with second degree assault with a deadly weapon. In ajoint trial Lewis and Mickelson both presented a self - defense theory, arguing that Abbett had attempted to hit Mickelson with his car after Lewis and Mickelson approached him. 

### Mickelson testified that his attack on Abbett was an attemptto stop Abbett' s carto ensure he was
not hit again. Lewis testified that he broke the passenger window with his elbow in an attempt toNo. 43658 - 2 -II, consolidated with No. 43748 -1 - II 

### pull Abbett awayfrom Mickelson and get Mickelson out ofAbbett's car. Lewis and Mickelson both denied using a baseball bat to assault Abbett. 

### Trial testimony showed that Lewis and Mickelson had been drinking the day ofthe assault, neither had a steadyjob, and neither Mickelson nor Hadley initiallytold police the version ofevents that they presented at trial. In rebuttal argument, the prosecutor referred to Lewis and Mickelson and their witnesses as the " underbelly of society," and stated that they

were the " type of people" who don' t have jobs, drink all day, and don' t like " cops." Report of Proceedings (RP) at 1477 - 78. The prosecutor also attempted to undermine defendants' self - 

### defensetheory by stating thatthe defendants' trial testimonywas the " firsttime anyone heard this story," " they' ve never said it before," and " they never gave statements." RP at 1483 -84. 

### Finally,the prosecutor argued thatthe incident represented a second degree assault or selfdefense, and implied thatthejury either had to render averdict based on whether it believed Abbett or it believed Lewis and Mickelson. Defense counsel for Lewis and Mickelson did not object to any ofthese statements. 

### Thejuryfound Lewis and Mickelson guilty ascharged.-Lewis and Mickelson unsuccessfully moved.for a newtrial. Lewis and Mickelson appeal. ANALYSIS A. PROSECUTORIAL MISCONDUCT To prevail on a claim ofprosecutorial misconduct, a defendant must showthat "in the context ofthe record and all the circumstances ofthe trial, the prosecutor' s conduct was both improper and prejudicial." 

### In re Pers. Restraint ofGlasmann, 175 Wn.2d 696, 704, 286 P.3d 673 ( 2012). 

### In assessing whether a prosecutor's closing argument was improper, we recognize that the prosecutor has " wide latitude to argue reasonable inferences from the evidence, 3No. 43658 - 2 -II, consolidated with No. 43748 -1 - II 

### including evidence respecting the credibility of witnesses." State v. Thorgerson, 172 Wn.2d 438, 448, 258 P. 3d 43 ( 2011). The prosecutor is permitted to comment on the veracity of a witness as 

### long as he or she does not express apersonal opinion or argue facts not in the record. State v. Smith, 104 Wn.2d 497, 510 -11, 707 P.2d 1306 ( 1985). To establish prejudice, the defendant must show a substantial likelihood that the 

### misconduct affected the.juryverdict. Thorgerson, 172 Wn.2d at442 - 43. Prejudice is not determined in isolation but " in the context ofthe total argument, the issues in the case, the
evidence, and the instructions given to the

### jury." State v. Warren, 165 Wn.2d 17, 28, 195 P. 3d 940 (2008). When the defendant failed to object at trial, the defendant is deemed to have waived 

### any error unless the prosecutor's misconductwas " so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice." 

### State v. Emery, 174 Wn.2d 741, 760- 61, 278 P. 3d 653 ( 2012). 

### Ifan appropriatejury instruction could have cured the potential prejudice but the defendant did not request one, the defendant' s prosecutorial misconduct claim fails. Emery, 174 Wn.2d at 761, 764.

1: Unfavorable Characterization of Defendants - Lewis and Mickelson argue that the prosecutor' s characterization ofdefendants and 

### defense witnesses as part ofthe " underbelly ofsociety" and the type ofpeople who don't have jobs, drink all day, and don't like cops was (1) based on facts not in the record and (2) constituted a personal opinion. We hold that the prosecutor' s comments represented impermissible personal opinions, but that Lewis and Mickelson' s failure to object waived their 

### claims because the misconductwas not so flagrantthat it could not have been cured by an instruction.

4No. 43658 - 2 -II, consolidated with No. 43748 -1 - II

a. Improper Arguments In closing argument, the prosecutor stated: T]hese people don't live under the same rules of society, the same way that most of us live.... 

### This is kind ofthe underbelly ofsociety. I don't mean that in a bad way. 

### It's just a side of society that I' d suspect that most ofyou don't see 

### very often. We see it all the time, but you don't.... These are people that don' t have jobs. They work under the table. 

### They live hand to mouth. They are engaged in drinking all 

### day. They get upset with one 

### another. They fight. That is - the type ofpeople that we' re talking about. The other part ofthat could be ... 

### is that that part of society doesn't like cops I don't like the cops no matter what. And that's this part ofsociety. RP at 1477 -

78. 

### Contrary to Lewis and Mickelson' s argument, most ofthe prosecutor' s challenged 

### comments were based on facts in the record. The defendants' drinking habits in general and on the night ofthe assault are included in the record. Neither defendant was employed at the time
of the assault in December of 20 1.1. 

### Testimony at trial indicated that the assault in question 

### ended onlywhen Lewis warned thatthe police were coming,which might support the reference to defendants' distrust ofpolice. The references to the defendants' and witnesses' drinking habits, employment status, and attitudes toward police were reasonable inferences from these facts. However, the prosecutor' s characterization ofdefendants as belonging to the " underbelly 

### ofsociety" and a " side ofsociety" that courts and prosecutors " see it all the time" is improper. RP at 1477 -

78. The record does not reflectthe existence ofany " underbelly ofsociety" nor
whether the prosecutor and court sees "[ this side of society] all the time." RP at 1478. 

### Therefore, the prosecutor' s statements risk calling thejury' s attention to matters it cannot consider. See Warren, 165 Wn.2d at 44 (holding that a prosecutor' s reference to facts not in the
record is improper because it allows the

### jury to speculate on facts not before it); Smith, 104 5

### No. 43658 - 2 -II, consolidated with No. 43748 -1 - II 

### Wn.2d at 510 -11 ( holding that a prosecutor can question the veracity ofwitnesses, but cannot express a personal opinion to do so). 

### Further, it is misconduct for a prosecutorto state a personal beliefas to the credibility of
witnesses. 

### Warren, 165 Wn.2d at 30. Instead ofbeing based on the evidence, the prosecutor' s statements about Lewis, Mickelson and their witnesses represented the prosecutor' s personal 

### opinions. His characterization thattheywere part ofthe " underbelly ofsociety" conveyed his opinion that Lewis, Mickelson and their witnesses were not credible because ofthe " type of 

### people" they were. RP at 1477 -78. Finally,describing defendants and witnesses as part ofan " underbelly ofsociety" also appears to be the type of "epithetical reference" courts have held improper. In State v. Wilson, the prosecutor referred to the defendant 

### by a declaration, " ` to call [defendant] a beast would insult the entire animal kingdom.' " 16 Wn.App. 348, 357, 555 P.2d 1375 ( 1976). The court 

### held thatthe remark was a derisively epithetical reference and expression ofpersonal beliefthat

was improper. 

### Wilson, 16 Wn.App. at 357. Nevertheless, the State argues thatthe statementsWerejustified becausethey werein direct response to Mickelson' s closing argument." Br. of 

### Resp' t at 11. We disagree.Lewis' s and Mickelson' s counsel referred to Abbett as a liar several times, which the State argues 

### prompted the prosecutor's attackon defense credibility. Just before the allegedly improper
remarks were made 

### by the prosecutor, Mickelson' s defense counsel asked, "[ 

### W]hy does it matter
who has a regularjob at Jaime Hadley' s house? Why does that matter ?" RP at 1459. This latter 

### statement may have permitted the prosecutor to argue inferences from the evidence regarding the fact the defense witnesses did not have jobs. " Remarks ofthe prosecutor, even ifthey are 

### improper, are not grounds for reversal iftheywere invited or provoked by defense counsel and 6No. 43658 - 2 -I1, consolidated with No. 43748 -1 - II 

### are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are

so prejudicial that a curative instruction would be ineffective." State v. Russell; 125 Wn.2d 24, 86, 882 P.2d 747 ( 1994). 

### However, an attack on the credibility ofthe State' s keywitness does not permit the prosecutor to attack defense witnesses' credibility with personal characterizations 

### regarding the "type ofpeople" they are. RP at 1478.

b. Waiver Because Lewis and Mickelson did not object to the prosecutor' s statements at trial, they must show that the misconduct was " so flagrant and ill intentioned" that no curative instruction
could have eliminated any resulting prejudice. Emery, 174 Wn.2d at 760 -761. We hold that the prosecutor' s comments, although improper, did not rise to the level of reversible misconduct. 

### Lewis and Mickelson could have proposed an instruction directing thejury to disregard 

### the prosecutor's personal opinions. The trial court already had instructed thejury that the lawyers' statements and arguments were not evidence and that thejury must render its verdict 

### based solely upon the evidence presented attrial. This instruction helped to minimize any prejudice the unfounded inferences may have caused. Emery,174 Wn.2d at 764 & n. 14 ( courts
presume thatjuries follow the court' s instructions); State v.Anderson, 153 Wn.App. 417, 428, 220 P. 3d 1273 ( 2009). Mickelson argues that an instruction would not have cured the prejudice because ofthe rampant nature ofthe misconduct. But the prosecutor' s comments were briefand 

### isolated, and Lewis and Mickelson do not explain why a curative instruction could not have 

### eliminated any prejudice resulting from them.

Because Lewis and Mickelson have not shown that the prosecutor' s improper remarks created prejudice that an appropriate instruction could not have cured, we hold that they waived

7No. 43658 - 2 -II, consolidated with No. 43748 -1 - II their prosecutorial misconduct claims based on the " underbelly ofsociety" and related

comments.

2. Reference to Absence of Statements 

### Lewis and Mickelson argue that the prosecutorviolated their right to remain silent by 

### commenting on theirfailure to give statements. We hold thatthe prosecutor' s comments represented an impermissible reference to silence, but also hold that Lewis and Mickelson were required to show prejudice because the prosecutor did not suggest that silence should be used as substantive evidence of guilt. We further hold that Lewis and Mickelson' s failure to object waived their claims because the misconduct was not so flagrant that it could not have been cured 

### by an instruction.
a. ' Improper Arguments The Fifth Amendment to the United States Constitution states that "[ n] o person ... shall be compelled in any criminal case to be a witness against himself." Article I, section 9 ofthe Washington State Constitution states that "[ n]o person shall be compelled in any criminal case to give evidence against himself." Both provisionsguarantee a defendantthe right to be free from 

### self - incrimination, including the rightto silence. State v. Knapp, 148 Wn.App. 414,420, 199 P. 3d 505 ( 2009). The State violates this right when it uses the defendant' s constitutionally permitted silence as substantive evidence ofguilt. State v. Burke, 163 Wn.2d 204, 217, 181 P.3d 1 ( 2008). 

### More specifically,the State cannot elicit comments from witnesses or make closing arguments that infer guilt from the defendant' s silence. State v. Easter, 130 Wn.2d 228, 236, 922 P. 2d 1285 ( 1996). Nevertheless, under certain circumstances a defendant' s silence can be used for impeachment purposes. Easter, 130 Wn.2d at 237. When the defendant testifies at trial he or 8No. 43658 - 2 -II, consolidated with No. 43748 -1 - II she can be impeached based on silence under certain circumstances. Burke, 163 Wn.2d at 217. 

### Common lawtraditionally has allowed witnesses to be impeached by their previous failure to
state a fact in circumstances in which that fact naturally would have been asserted. "' Jenkins v. Anderson, 447 U.S. 231, 239, 100 S. Ct. 2124, 65 L. Ed. 2d 86 ( 1980). However, in Burke, our 

### Supreme Court held that onlythe defendant' s silence before arrest and before issuance of Miranda' warnings can be used for impeachment. Burke, 163 Wn.2d at 217. Further, our 

### Supreme Court has cautioned that a defendant' s testimony attrial does not automatically mean 

### that commentary on his orher pre - arrest silence constitutes impeachment. Burke, 163 Wn.2d at 215 -16.

### Ifthe State improperly refers to a defendant' s silence, the type ofreference determines the standard of review. Burke, 163 Wn.2d at 216. Our Supreme Court has distinguished between a " comment[ ]" on the constitutional right to remain silent and a " mere reference[ ]" to silence. Burke, 163 Wn.2d at 216. A comment involves use of silence either as substantive evidence of guilt or to suggest that the defendant' s silence was an admission ofguilt. State v. Letivis, 130 Wn.2d 700, 707, 927 P.2d 235- (1996). Such a comment violates the - United States 

### and Washington constitutions, Conversely, a prosecutor's statement will not be considered a
comment on the right to remain silent if " ` standing alone, [ it] was so subtle and so briefthat [ it] did not naturally and necessarily emphasize defendant' s testimonial silence.' " Burke, 163 Wn.2d at 216 ( alterations in original) (internal quotation marks omitted) (

### quoting State v. Crane, 16 Wn.2d 315, 331, 804 P.2d 10 ( 1991)). A mere reference to silence is not reversible error 

### absent a showing ofprejudice. Burke, 163 Wn.2d at 216.

Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16L. Ed. 2d694 ( 1966). 9No. 43658 - 2 -II, consolidated with No. 43748 -1 - II Lewis and Mickelson both testified at length at trial in support oftheir self - defense 

### theory. During rebuttal, the prosecutor pointed outthat Lewis and Mickelson (and Hadley) had
never given statements to the police:

Think about the violence of the scene. Think about the mindset of Mr. Abbett in that situation. He says he didn' t hit anyone really. These guys don't have any injuries. Now, he gave two statements to the police and did a defense interview. 

### So [ Mickelson' s defense counsel] wants to criticize, why did I spend so much time with these defendants 

### dissecting what they said. Because they've never said it before. I don' t have something to pin them down on, do I? I don' t 

### have a transcript to go, didn't you say at page 3, line 12, six months ago that this happened? Did I have that ability? I didn' t. Why didn' t I? Because they never gave statements. 

### Hadley never gave a statement. Mickelson never gave a statement. These witnesses never gave a statement to the police, either. So he wants to criticize that. But it is my job to pin down their statements. 

### And I have to do that in my 

### job, because they never spoke about these events. Because this was thefirst time, wasn' t it? Thefirsttime anyone heard this story. RP at 1483 -84 ( emphasis added).

These arguments did touch on Lewis' s and Mickelson' s right to remain silent.' But the 

### prosecutorwas not arguing that the absence ofstatements should be used as substantive evidence ofguilt or that guilt could be inferred from the silence. Instead, he was suggesting that Lewis' s 

### and Mickelson'stestimony was not credible because itwas invented fortrial. The prosecutor compared the credibility ofthe victim,who told a consistentversion offacts to the police and to defense counsel, with the credibility ofLewis and Mickelson,who presented their self - defense 

### storyforthe first time on the stand. As a result,this argument was akin to using silence for impeachment purposes. 

### However, Burke indicates that even impeachment is improper for silence occurring after Miranda warnings are given, even if the defendant testifies at trial. 163 Wn.2d at 217. Here, the 

### The prosecutor did not explicitly mention Lewis. But the prosecutor used the pronoun "they" referring to the defendants and stated that "they never gave statements." RP at 1483 -84. 10No. 43658 - 2 -II, consolidated with No. 43748 -1 - II reference to the failure to give statements was not limited to the pre - arrest period. Accordingly, we hold that the prosecutor's argument was improper. On the other hand, because the prosecutor 

### did not invite thejury to use the absence.ofstatements as substantive evidence ofguilt and because the argument was subtle and brief,we hold that the prosecutor' s argument was a " mere reference" to silence rather than a comment.

b. Waiver Because the prosecutor constrained his argument to impeachment purposes and did not 

### invite thejuryto conclude.that Lewis and Mickelson were guilty because they invoked their right to silence, his misconduct is not reversible error absent a showing ofprejudice. Bunke, 163 Wn.2d at 216. As discussed above, in the context ofprosecutorial misconduct not objected to at 

### trial, a defendant waives any argument unless the misconductwas so flagrant or ill intentioned that no curative instruction could have eliminated the prejudice. Emery, 174 Wn.2d at 760 - 761. We hold that the prosecutor' s comments, although improper, did not rise to the level of
reversible misconduct. Tirst,the prosecutor' s remarks about the failure to give statements were not particularly flagrant. Theprosecutor did not emphasize Lewis' s and Mickelson' s silence, and his reference to silence was indirect, subtle, and brief. Placed in the context ofthe entire argument, the statements were very close to being innocuous. Second, Mickelson argues that a curative instruction would not have cured any prejudice because the misconduct was rampant, but as discussed above we do not find this misconduct to be flagrant. Other than this argument, Lewis and Mickelson have not attempted to explain why

an appropriate instruction could not have cured any potential prejudice. A curative instruction
would be particularly effective in this context, where "[ m] ostjurors know that an accused has a 11No. 43658 - 2 -II, consolidated with No. 43748 -1 - II 

### rightto remain silent and, absent any statementto the contrary bythe prosecutor, would probably derive no implication of guilt from a defendant' s silence." Lewis, 130 Wn.2d at 706. Because Lewis and Mickelson have not shown that the prosecutor' s improper remarks 

### created prejudice that an appropriate instruction could not have cured, we hold that theywaived their prosecutorial misconduct claims based on the reference to their silence.

3. Alleged " False Choice" Statement

Lewis3 argues that the prosecutor improperly created a "[ 

### f] alse [c]hoice" by implying that 

### thejury had to choose between believing Abbett orbelieving Lewis and Mickelson, and that the 

### jury could find Lewis not guilty only ifit did not believe Abbett. Br. ofAppellant (Lewis) at 11- 13. 

### He also argues thatthe prosecutor misstated thejury's role and minimized the State' s burden ofproofby implying that thejury's role was to determine which witnesses were telling the truth" and decide which version ofthe events is more likelytrue. Br.ofAppellant (Lewis) at 13. We hold that the prosecutor' s comments were improper, but that Lewis' s failure to object 

### waived his claim because the misconduct was not so flagrant that it could not have been cured by
an instruction.

a. Improper Arguments 

### It is improper for a prosecutorto argue that in orderto acquit a defendant,thejury must 

### find thatthe State' s witnesses are either lying or mistaken. State v. Fleming, 83 Wn.App. 209, 213, 921 P. 3d 1076 ( 1996). 

### A "false choice" argument misrepresents the role ofthejury and the 

### burden ofproofby tellingjurors theymust decide who is telling the truth and who is lying in 

## orderto renderaverdict. State v. Wright,76 Wn.App. 811, 825 -26, 888 P.2d 1214 (1995).4 The 3 Mickelson did not make this argument in his brief.
4 

### Wrightwas superseded by statute on grounds not relevant to this case. 12No. 43658 - 2 -II, consolidated with No. 43748 -1 - II 

### choice is false because thejury's task is not to choose between competing stories, butto determine whetherthe State met its burden ofproof. Thejury mayfind thatthe State has not met its burden ofproofregardless ofwhetherthejury believes the State' s witnesses or disbelieves the defense witnesses, but the State' s " false choice" improperly suggests otherwise. 

### Lewis relies on State v. Miles, 139 Wn.App. 879, 162 P.3d 1169 (2007) to support his argument that the prosecutor' s argument was improper. In Miles, the prosecutor argued that the State and the defense had presented mutually exclusive versions ofevents and that, essentially, the

### jury would have to decide which version of events was more credible. 

### 139 Wn.App. at 889- 90. This court held that "to the extent the prosecutor' s argument presented thejurors with a false 

### choice, that they could find Miles not guilty only ifthey believed his evidence, itwas
misconduct." 

### Miles, 139 Wn. App. at 890. Here, the prosecutor presented a false choice argument similar to that in Miles. The prosecutor argued:

Either you folks believe that this was an Assault in the Second Degree or it was self - defense. And you shouldn' t consider any other charge. Because either it 

### happened the way that they said it happened, or it happened the way that Nate Abbett told you. There' s no in between. RP at 1392. Later, the prosecutor argued, " Ifyou do not believe Mr. Abbett and you believe Mr. 

### Mickelson and Mr. Lewis, that they were acting in self - defense, then you are equally obligated to find them not guilty of anything. That' s this case." RP at 1485 -86.

We hold that the prosecutor' s statements were improper. First, the prosecutor told the 

### jurythattheymust choose between second degree assault and self - defense (which would be a
not guilty verdict). But the prosecutor ignored the third choice — that Lewis and Mickelson did not act in self -

defense but the State did not prove all of the elements of second degree assault. This type of argument is improper because it minimizes the State' s burden ofproof. 13No. 43658 - 2 -II, consolidated withNo. 43748 -1 - II 

### Second, the prosecutor improperly argued that thejury's only choice was to believe 

### Abbett's testimony orto believe Lewis and Mickelson' s testimonythat they were acting in selfdefense. The prosecutor essentially told thejury that its role was to determine who was telling the "truth" and base its verdict on that choice. However, thejury's role is to determine whether 

### the State has met its burden ofproof. Wright, 76 Wn.App. at 826. It is misleading and unfair to 

### make it appearthat an acquittal requires thejury to conclude that the State' s witnesses are lying. 

### Wright, 76 Wn.App. at 824 - 26. Thejury is entitled to conclude that it did not necessarily believe Lewis and Mickelson but that the State did not prove its case beyond a reasonable doubt. 

### See Miles, 139 Wn.App. at 890. And likewise,thejury is entitled to believe the State' s
witnesses but conclude that the State did not prove its case beyond a reasonable doubt. Wright, 

### 76 Wn.App. at 824 -

25. b. Waiver Because Lewis did not objectto the prosecutor' s statements at trial, he must show that the misconduct was so flagrant and ill intentioned that no curative instruction could have eliminated the prejudice. Emery, 174 Wn.2d at 760 - 761. We hold that the prosecutor' s comments, although improper, did not rise to the level of reversible misconduct. 

### First,the prosecutor's arguments were not particularly flagrant. The prosecutor did not 

### expressly misstate the State' s burden ofproofand confirmed that the State had to meet its burden 

### ofproofforthejuryto find Lewis and Mickelson guilty. The reference to thejury having to choose between believing Abbett and believing Lewis and Mickelson was briefand subtle and was not the focus ofthe prosecutor' s argument. 

### Second, Lewis does not showwhy an instruction would not have cured any prejudice 

### resulting from the prosecutor's arguments. Here, a curative instruction could have clarified the 14No. 43658 - 2 -II, consolidated with No. 43748 -1 - II 

### burden ofproofand thejury' s role. See Emery, 174 Wn.2d at 763 -64;Anderson, 153 Wn.App 

### at 432. Accordingly, we hold that Lewis waived his prosecutorial misconduct claim based on the false choice arguments.

B. INEFFECTIVE ASSISTANCE OF COUNSEL 

### Lewis and Mickelson argue thattheir counsel was ineffective for failing to object to the prosecutor' s improper reference to their testimonial silences We disagree. 

### We review claims of ineffective assistance ofcounsel de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on an ineffective assistance of counsel claim, the defendant must show both (1) that defense counsel' s representation was " deficient" and (2) thatthe deficient representation prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 32 - 33, 246 P. 3d 1260 ( 2011). The failure to show either element ends our inquiry. Grier, 171 Wn.2d at 33. 

### Representation is deficient if,after considering all the circumstances, it falls below an objective
standard of reasonableness. Grier, 171 Wn.2d at 33. Prejudice exists if there is a reasonable probability that except for counsel' s errors, the result ofthe proceeding wou ave been different. Grier, 171 Wn.2d at 34. We give great deference to trial counsel' s performance and begin our analysis with a strong presumption that counsel' s performance was reasonable. Grier, 171 Wn.2d at 33. A 

## 5 In the heading ofhis brief's section on ineffective assistance ofcounsel, Mickelson (and Lewis adopting by reference the arguments ofMickelson) also allege that counsel' s failure to objectto the prosecutor' s closing remarks appealing to "bias" constituted ineffective assistance ofcounsel. However,we do not address the allegation because they did not assign errorto it,did not develop the argument, and did not cite to the record or authority for support. See RAP 10. 3( a)( 6). Such 

### passing treatment ofan issue without reasoned argument does not meritjudicial consideration. Joy v. Dep' t ofLabor & Indus., 170 Wn.App. 614, 629, 285 P. 3d 187 ( 2012), review denied, 176 Wn.2d 1021 ( 2013). Neither Lewis nor Mickelson argued that the failure to object to the false choice" argument constituted ineffective assistance. 15No. 43658 - 2 -II, consolidated with No. 43748 -1 - II claim that trial counsel provided ineffective assistance does not survive iftrial counsel' s conduct

can be characterized as legitimate trial strategy or tactic. Grier, 171 Wn.2d at 33. To rebut the strong presumption that counsel' s performance was effective, "the defendant bears the burden of 

### establishing the absence ofany `conceivable legitimate.tactic explaining counsel' s performance.' " Grier, 171 Wn.2d at 42 ( emphasis in original) (

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

The decision of when or whether to object is a classic example of trial tactics." State v. Madison, 53 Wn.

### App. 754, 763, 770 P.2d 662 ( 1989). 

### For example, counsel may decide not to 

### object to avoid the risk ofemphasizing damaging evidence. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 714, 101 P. 3d 1 ( 2004). Therefore, we presume that " the failure to object was the 

### product of legitimate trial strategy ortactics, and the onus is on the defendant to rebut this presumption." State v. Johnston, 143 Wn.App. 1, 20, 177 P. 3d 1127 ( 2007). In order to show 

### that defense counsel was ineffective for failing to make a particular objection,the defendant

must show that not objecting " fell below prevailing professional norms." Davis, 152 Wn.2d at


### Lewis and Mickelson argue thattheir counsel was ineffective for failing to objectto the 

### prosecutor's improper closing argumentthat referenced theirtestimonial silence. We have held that the prosecutor' s reference to the absence of statements from Lewis and Mickelson arguments was improper. However, we hold that counsel' s failure to object to the absence of 

### statements was not deficient because it may have involved legitimate trial strategy. Counsel may not have wanted to object to the prosecutor' s reference to the absence of 

### statements in orderto avoid emphasizing the factthat Lewis and Mickelson did not tell the police 

### thatthey acted in self -

defense. An objection may have called thejury's attention to their silence 10No. 43658 - 2 -II, consolidated with No. 43748 -1 - II and triggered the type ofnegative inference of guilt that the prosecutor did not argue. Because 

### the prosecutor's reference to silence was subtle and so brief,counsel may have hoped that Lewis and Mickelson's testimonial silence would escape thejury' s attention. We hold that counsel 

### performancewas not deficient in failing to object. Accordingly, Lewis' s and Mickelson's ineffective assistance of counsel claims fail. C. CUMULATIVE ERROR Lewis and Mickelson next argue that they are entitled to reliefunder the cumulative error 

### doctrine. They argue that even ifeach ofthe alleged are does not support reversal, the accumulation ofthe errors denied their right to a fair trial. We disagree. The cumulative error doctrine applies where "there have been several trial errors that 

### standing alone may notbe sufficienttojustify reversal but when combined may deny a defendant

a fair trial." State v. Greiff, 141 Wn.2d 910, 929, 10 P. 3d 390 (2000). " The defendant bears the 

### burden ofproving an accumulation oferror ofsufficient magnitude that retrial is necessary." State v. Yarbrough, 151 Wn.App. 66, 98, 210 P.3d 1029 (2009). " Where no prejudicial error is shown tohave occurred, cumulative error cannot be said to have deprived the-defendant ofa fair trial." 

### State v. Price, 126 Wn.App. 617, 655, 109 P.3d 27 (2005). Here, we have found that the prosecutor' s arguments were improper in three instances, but that Lewis and Mickelson waived their prosecutorial misconduct claims. Moreover, they have not shown that the improper arguments prejudiced them. And even taken together, the 

### improper arguments are not ofsufficient magnitude to deny Lewis and Mickelson afairtrial. Therefore, we hold that Lewis and Mickelson failed to show cumulative error warranting reversal oftheir convictions.

17No. 43658 - 2 -II, consolidated with No. 43748 -1 - II D. MICKELSON' S SAG In his SAG, Mickelson alleges that there were x - rays ofhis ribs taken at the Thurston Countyjail, "

### key evidence" in his opinion, which should have been produced attrial but was not. He appears to suggest that his counsel' s failure to offer these x - rays as evidence in support his 

### self - defense theory constitutes ineffective assistance ofcounsel. We reject this argument. As noted above, to prevail on an ineffective assistance of counsel claim, the defendant 

### must show that defense counsel' s performance was objectively deficient and thatthe performance prejudiced him. Grier, 171 Wn.2d at 32 - 33. Mickelson asserts that the x - rays were 

### taken for an injurythat occurred when Abbett hit him with his car, butthere is no evidence in the record that thex -

rays exist, show any such injury, or would have favored Mickelson' s self

### defense theory. Because there is no evidence in the record upon which to base review of Mickelson' s allegation, we cannot consider it on direct appeal. State v. We, 138 Wn.App. 716, 729, 158 P.3d 1238 (2007) ( claims based on evidence outside the record must be pursued through a personal restraint petition); see also State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d - 1251 ( 1995). - - 

### Mickelson also alleges thatthe trial court' s bailiffviolated due process by checking the 

### crime scene for glass atthe request ofthejury during their deliberations. We cannot consider matters outside the record on direct appeal. McFarland, 127 Wn.2d at 335; We, 138 Wn.App. at 

### 729. The record does not reflect any indication that the bailiffchecked on the crime scene and then communicated her findings to thejury. Mickelson' s allegation in this part ofthe SAG appears to have no basis in the record, so we cannot review it.

18No. 43658 - 2 -II, consolidated with No. 43748 -1 - 11 We affirm. 

### A majority ofthe panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is

so ordered.

We concur:

OHANSON, A. U. J.

19 MAxA, J. 

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