IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,

v. RICHARD F. KLEPACKI, Appellant. ANTHONY J. TUDOR, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. 33983

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UNPUBLISHED OPINION

L A WRENCE

- B ERREY , A.C. J.

— Richard F

. Klepacki appeals his conviction for first degree murder with a firearm enhancement . He claims that numerous errors below entitle him to a new trial. We disagree and affirm. FACTS Background facts On January 4, 2014, at approximately 9:15 p.m., Gary Wright heard a loud knock on the front door of his friend Ed Giesbrecht ’s apartment in Deer Park, W ashington . As Giesbrecht approached the door to open it, someone on the other side kicked it open and 

### FILED FEBRUARY 1 , 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 33983

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2 off its hinges. Wri ght witnessed one person come through the doorway and fire one shot at Giesbrec ht , killing him. Wright later described the shooter as a young stocky male, wearing a dark blue hoodie , baseball cap , and a blue bandana that covered his face

. Bernhard Dedico s was at the same apartment complex that night. He heard what sounded like fireworks. When h e went outside he saw two men run by him . The men headed north and then turned east down an alley between C and D Streets

. One of the two men appeared to have a pistol in his hand. When Dedicos learned that Giesbrec ht had been shot, he called 911. Deputy Robert Brook e responded to the call. As he was driving along C Street , he saw a man run into a wooded area. Deputy Brook e reported on the radio what he saw a nd pursued the man on foot. K

- 9 Deputy Steven Stipe assisted and found Klepacki lying face down in bushes near the entrance to Deer Park Middle School, one - fifth of a mile from Giesbrecht’s apartment. Klepacki had blood on his face

. The patrol dog found a nylon pistol h olst er in the bushes near Klepacki. The holster did not have snow or dew on it, indicating that someone had recently left it there. Detective James Dresback interviewed Klepacki shortly after his arrest . The interview was recorded. D uring the interview, Klepacki admitted that he ran and hid when he saw law enforcement, and attributed his actions to “instinct.” Clerk’s Papers (CP ) at 51 . When told that he had blood on his face, Klepacki claimed the blood hadNo. 33983

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3 been there since New Year ’s Day , even though he had showered several times since then

. He later said that he likely hurt himself when he hid from law enforcement . He denied that he owned a pistol and denied that the holster found near him belonged to him. He said he had been at his girlfriend Tracy Tudor’s house that night and decided to go for a long walk. He claimed he had been walking alone for several hours that night

. He denied going into any store that night. Soon after, Detective Dresb a ck handed a receipt found in Klepa cki’s coat that showed he had purchased alcohol about an hour before the murder. Klepacki then admitted that he went to the store that night. Later, Klepacki denied being at the store. When reminded of the receipt, Detective Dresback asked Klepacki if h e was at the store alone. Klepacki answered that he was alone. Store surveillance video showed that around 8 :00 p.m., Klepacki and Tracy Tudor’s 23

- year - old son, Anthony Tudor , were in the store. Kl e packi was wearing a jacket , and Tudor had on a black hoodie. Klepacki had no blood on his face. Investigation Giesbrecht’s front door had at least one visible footprint. A spent bullet was recovered in the drywall in the living room. A few days later, a shell casing was found. Law enforcement obtained a search warrant to search 306 C Street, Tracy and Anthony Tudor ’s house . The address was approximately one block north of Giesbrecht’s apartment. The search found a blue bandana, several baseball caps, and a pair of tennisNo. 33983

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4 shoes with a tread pattern si milar to the trea d print s on Giesbrecht’s front door

. No pistol was found. On January 23, 2014, Hazel McGillivary contacted law enforcement. H er son had directed her to a gun that had earlier been found by another child between B and C Streets
near De er Park M iddle S chool. Law enforcement obtained the gun from McGillivary. It

was a .45 caliber semi

- automatic pistol

. Forensic examination of the evidence established that the .45 caliber pistol was the murder weapon . A forensic witness explained w hy deoxyribonucleic acid ( DNA ) and fingerprints would not be found on a pistol exposed to extreme cold and moisture for weeks

. A forensic witness confirmed that the tread of the tennis shoes recovered at Tudor’s house was similar to the tread print s on Gi esbrecht’s front door. A DNA analysis

e stablished that blood found on the coats of Tudor and Klepacki was Klepacki’s blood. Procedural facts The State charged Klepacki and Tudor with first degree murder of Giesbrecht. The State later amended the charge to add the alternative charge of felony murder committed during the commission of first degree burglary. Klepacki filed a motion to sever the trials based on the fact that Tudor made incriminating statements that were prejudicial to Klepacki. The motion was unopposed, and the trial court severed the case into two trials.No. 33983

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5 Tudor ’s trial occurred first and resulted in his conviction for first degree murder. His sister, Cheyeanne Woods , briefly testified at his trial . She denied having any information a bout the murder

. Klepacki’s trial
1. Lack of hearsay objection to McGillivary’s testimony Klepacki’s trial began October 26, 2015. During its case in chief, the State called McGillivary. T he State asked McGillivary what she did once the gun was brought to her

. McGillivary answered, Well, Logan, the eight

— I think he was about ten at the time

— a little boy found the gun and he brought it to the bus stop. Then my son run across the street and said, Mom, it’s a real gun. So I took a bag and went over there

. . . . And it was in the alley

— in the gutter aft er Logan had dropped it there. 3 Report of Proceedings (RP) (Nov. 2, 2015) at 387. McGillivary then used a diagram and showed t he jury the alleyway and bus stop where she retrieved the gun. Klepacki did not object during this testimony.
2. Hearsay objection to Detective Dresb a ck’s testimony The State also called Detective Dresb a ck . The State asked the detective if he had done any research about the holster , and he answered that he had . The State began to ask Detective Dresb a ck if he had consulted a firearm s expert about the holster , and Klepacki objected. However, Klepacki withdrew his objection and said he would wait until theNo. 33983

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6 State finished its question . The State resta ted the question and asked Detec tive Dresb a ck about his own research. Detective Dresb a ck replied the holster, “[a]n Uncle Mike’s holster No. 5 was designed to hold a firearm that is a large frame semi

- automatic with a four

- and

- a - half to five

- inch barrel, which was the kind of gun that w as the murder weapon.” 5 RP (Nov. 4, 2015) at 801. The State then asked if Detective Dresb a ck discussed that research with a firearms expert , and Detective Dresb a ck responded that he had . The State asked the detective to relate that conversation, and Kl epacki objected on the basis of hearsay. The State represented that the f irearms expert had already testified about the holster and had been subject to cross

- examination on the issue . The trial court agreed with the State and , believing that any confront ation clause issue was satisfied by the expert’s earlier examination, overruled the objection. However, the record shows that n either party questioned the firearms expert about the holster.
3. Lack of hearsay objection to Detective Dresb a ck’s demonstration During Detective Dresba ck ’s redirect , the following colloquy occurred : [The State:] Detective, with respect to your interview with Mr. Wright, [did] Mr. Wright during that interview demonstrate for you how the shooter was holding the gun? [Detective D resb a ck:] Yes, he did. [The State:] And how that demonstration

— I mean, what was the demonstration?No. 33983

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7 [Detective Dresba ck:] He held his finger up like a gun in a fashion that he recalls seeing the shooter, he believed the shooter held the gun. [The S tate:] How did he demonstrate; what was it that you saw? Left hand, right hand? [Detective Dresb a ck:] It was the right hand up over his shoulder, like this (indicating). 5 RP (Nov. 5, 2015) at 845

- 46. Klepacki did not object during this colloquy

. A lthough Wright had earlier testified at trial, neither attorney asked him how the shooter had held the gun

. 4. Alleg ed p rosecutorial misconduct Three days before Klepacki’s trial began, the State notified Klepacki that Tudor’s sister, Cheyeanne Woods , woul d testify against Klepacki. According to the State, Woods would testify that her brother called her about 15 minutes after the murder , was very emotional, and told her that Klepacki had just shot someone. The State filed a motion seeking to have Woods’ s t estimony deemed admissible. Klepacki objected. The trial court ruled that Woods could testify what her brother said, subject to the State laying a proper foundation for an excited utterance. Defense cou nsel interviewed Woods on October 29, prior to her testifying. A fter this interview, and once the jury was excused, defense counsel voiced a concern . Counsel said he thought the State was committing prosecutorial misconduct in offering Woods’ s testimony to the jury . The court noted that defense counsel had not provided anyNo. 33983

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8 authority, briefing , or motion on the subject. Defense counsel said he would bring a CrR 8.3(b) motion to dismiss for misconduct

. No such motion was brought. Woods testified as anticipated. During her examination, Woods admitted t hat her new testimony was inconsistent with the testimony she gave in her brother’s trial , that she
t old the State very recently she did not know anything about the murder , and that she spoke with her brother after that discussion with the State

. Woods ex plained that she had withheld the substance of her brother’s January 4 phone call s because her brother’s claim at trial and in the pending appeal was that he was not present during the murder. She acknowledged that her present testimony hurt her brother’s pending appeal. The State presented call logs that verified Woods received calls from her brother the night of the murder , including a call around 9:30 p.m

. 5. State’s theory explained The State explained its theory of the case during closing. The State a rgued that Tudor had kicked Giesbrecht’s front door open and that Klepacki, standing behind and reaching over Tudor, fired the .45 caliber pistol. The State’s theory therefore accounted for Tudor’s shoe print s on the door, Wright’s testimony that the sho oter was a younger
person wearing a dark hoodie and holding the pistol above his shoulder, and the fact that the gun’s holster was found near Klepacki in the bushes.No. 33983

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9 6. Verdict and post trial motions The jury found Klepacki guilty of first degree murder and e ntered a special finding that Klepacki had possessed a firearm at the time of the crime . Klepacki filed a CrR 7.4(a)(3) motion for arrest of judgment, challenging the sufficiency of the evidence. The trial court denied that motion. Klepacki also filed a CrR 7.5(a)(2) motion for a new trial, claiming prosecutorial misconduct. K lepacki asserted that the prosecutor improperly offered leniency in exchange for Woods’ s testimony. Klepacki’s motion was based on defense counsel’s affidavit. Paraphrasing for brevity, the affidavit explained : After his conviction and sentencing, Tudor ’s attorney contacted the State and asked, “ What will you give Tudor for coming forward and saying what happened?” The State said it would listen to Tudor only if it could be cor roborated. The State scheduled an interview with Tudor’s sister and mom

. The interview occu rred on October 15 and was videotaped

. The State asked both women how they felt about Tudor serving time for murdering Giesbrecht while the person who actually shot Giesbrecht , Klepacki, would probably go free. The State also told them about the call it received from Tudor’s attorney, and its response that it needed corroboration. Both women adamantly insisted throughout the v ideotaped interview that they knew nothing

. After the interview, Woods called her brother in prison. After this call, she contacted the State and offered new information. The State scheduled a second interview, although not recorded . Woods told the State that her brother had called he r shortly after the murder, sounded freaked out and scared, and told her that Klepacki had just shot and killed someone.No. 33983

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10 See CP at 163. The trial court considered defense counsel’s affidavit and reviewed Woods’ s October 15 videotaped interview . The tr ial court concluded that Klepacki had not established prosecutorial misconduct and denied his CrR 7.5(a)(2) motion for a new trial

. Klepacki appealed. ANALYSIS Klepacki raises four arguments in his direct appeal: (1) the trial court abused its discreti on when it denied his CrR 8.3(b) motion to dismiss for prosecutorial misconduct , (2) the trial court erred in admitting Detective Dresback’s hearsay testimony that the murder weapon could fit in the holster found near Klepacki, (3) he was denied effective assistance of counsel when defense counsel failed to object to McGillivary’s hearsay
statement about how the gun was found, and (4) he was denied effective assistance of counsel when defense counsel failed to object to Detective Dresback’s demonstration of Wright’s reenactment of how the shooter held the gun.
A. P ROCURING W OODS ’ S TESTIMONY WAS NOT PROSECUTORIAL MISCON DUCT Klepacki argues the trial court abused its discretion when it denied his CrR 8.3(b) motion to dismiss for prosecutorial misconduct . We no te that Klepacki never brought a CrR 8.3(b) motion to dismiss

. Rather, Klepacki brought a motion for a new trial under CrR 7.5(a)(2). The State does not raise this discrepancy as an issue. We treat Klepacki’sNo. 33983

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11 claim of error as pertaining to the trial co urt’s denial of his motion for a new trial under CrR 7.5(a)(2). CrR 7.5(a) (2) authorizes a trial court to grant a defense motion for a new trial if it appears that a substantial right of the defendant was materially affected by prosecutorial misconduct. S tate v. McKenzie , 157 Wn.2d 44, 5 2 , 134 P.3d 221 (2006). The decision to grant or deny a new trial is within the discretion of the trial court , and this court will not disturb that decision unless there is a clear abuse of discretion. Id . at 51. A trial court abuses its discretion when no reasonable judge would have reached the same conclusion. Id . at 52. To show prosecutorial misconduct, the defendant has the burden of establishing that (1) the State acted improperly, and (2) the State’s improper act prejudiced the defendant. State v. Emery , 174 Wn.2d 741, 756, 278 P.3d 653 (2012). Misconduct is prejudicial if there is a substantial likelihood it affected the verdict. Id. at 760

- 61. Klepacki argues that the State acted improperly because it proc ured Woods’ s testimony by offering leniency to someone else, her brother. Klepacki cites United States v. Singleton , 165 F

. 3d 1297, 1301

- 02 (10 th Cir. 1999) to support his argument. We do not read Singleton as supporting his argument.
In Singleton , the g overnment had promised a co - conspirator leniency in exchange for the co

- conspirator’s testimony. Id

. at 1298. The defendant appealed the lower court’sNo. 33983

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12 refusal to suppress the testimony

. Id

. at 1297. The defendant argued that the government ’s offer to t he witness violated the federal anti

- gratuity statute

. 1 Id

. at 1299. In rejecting the argument, the Singleton court stated: [ T ] he defendant implies Congress must have intended to subject the United State s to the provisions of section 201 (c) (2), and, cons equently, l i ke any other violator, to criminal prosecution. Reduced to th is logical conclusion, the basic argument of the defendant is patently absurd. Id

. at 1300. The Singleton court held that the longstanding practice of exchanging leniency for
tru thful testimony was not prohibited under the anti

- gratuity statute. Id. at 1302. The Singleton court clarified that its holding did not permit the government to offer a witness something beyond a concession normally granted: Our conclusion in no way perm its an agent of the government to step beyond the limits of his or her office to make an offer to a witness other than one traditionally exercised by the sovereign. A prosecutor who offers something other than a concession normally granted by the governme nt in exchange for testimony is no longer the alter ego of the sovereign and is divested of the protective mantl e of the government. Thus, fears our decision would permit improper use or abuse of prosecutorial authority simply have no foundation.

1 18 U.S.C. § 201(c) (2) provides that w hoever corruptly gives, offers, or promises anything of value to any person, or offers or promises such person to give anything of value to any other person with intent to influence the testimon y under oath of such first

mentioned person as a witness upon a trial shall be fined under this title or imprisoned for not more than two years, or both.No. 33983

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13 Id

. K lepacki asserts that Singleton prohibits the State from offering leniency to anyone but the witness , i.e

. , Woods

. We d isagree. Singleton was concerned with what the government offered, not who might benefit from the government’s offer. Singleton focuse d on the type of concession the government offer ed and concluded that the longstanding governmental practice of exchanging leniency for testimony was not improper.
Here , the record does not establish that the State offered leniency to Woods’s brother

. Bu t even if the State did offer leniency to him, i t is of no consequence. We conclude that the trial court did not abuse its discretion when it denied Klepacki’s CrR 7.5(a)(2) motion for a new trial. 2
B. ADMITTING HEARSAY TE STIMONY ABOUT THE HOLSTER WAS HARML ESS ER ROR 1. Hearsay

2 After oral argument , Klepacki filed a “M emorandum R e Statement of Additional Au thorities. ” In the t wo - page memorandum , Klepacki clarifies his prosecutorial misconduct argument. We understood his argument without the need for clarification. The State has moved to strike the memorandum as an improper post

- argument submission . We agree and grant the Sta te’s motion to strike

.No. 33983

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14 Klepacki argues the trial court erred in admitting Detective Dresback’s testimony that the firearms exper t confirmed to him that the .45

- caliber pistol could fit in side the holster found near Klepacki. The State does not dispute that Detective Dresback’s testimony was hearsay. The State instead argues that Klepacki failed to object . We disagree. Klepacki did object

. But the trial court allowed the testimony because it wrongly believed the firearms expert had already testified on th e issue. Regardless of whether the firearms expert had earlier testified on the issue, the detective’s recitation of the expert’s opinion still was hearsay. The trial court , therefore , erred by admitting Detective Dresback’s hearsay testimony. The Sta te alternatively argues that admission of the hearsay was harmless. We
agree. Error in admitting hearsay may be harmless if there is a reasonable probability that the error did not materially affect the verdict. State v. Owens , 128 Wn.2d 908, 914, 913
P .2d 366 (1996). Here, Detective Dresback testified about his own research and stated that his research confirmed that the .45

- caliber pistol could fit inside the holster. This
was proper non hearsay testimony. An error is not prejudicial if similar testi mony was admitted. State v. Ramirez

- Estevez , 164 Wn. App. 284, 293, 263 P.3d 1257 (2011).No. 33983

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15 2. Confrontation c lause Klepacki further argues that the admission of the hearsay statement violated his rights under the c onfrontation c lause. Under the Sixth Amend me nt to the United States Constitution ’s confrontation clause, “[i] n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.” In general, the confrontation clause prohibits the admission of an unav ailable declarant’s out

- of

- court
statement if the hearsay qualifies as testimonial. Davis v. Washington , 547 U.S. 813, 821, 126 S. Ct. 2266, 165 L. Ed

. 2d 224 (2006).
T he parties present a thorny issue of whether Klepacki ’s failure to assert a specific confrontation clause objection waives his right to review. The issue presented is thorny given that the trial court glossed over the hearsay objection and focus ed on the confrontation clause when it erred in admitting the evidence. We note that both the .45

- caliber pistol and the holster were in the courtroom throughout most of the trial. The hearsay statement of Detective D resback did not prevent Klepacki from confronting his absent accuser. The best evidence of whether the absent accuser’s opinion wa s true was available to Klepacki within the four walls of the
courtroom . If there was a bona fide question whether the pistol fit the holster, the question could have bee n irrefutably answered without resort to any absent witness

. One only would have had to place the pistol inside the holster. For this reason, we rejectNo. 33983

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16 Klepacki’s claim that the admission of the hearsay violated his rights under the confrontation clause. C. C OUNSEL NOT INEFFECTI VE FOR FAILING TO OB JECT TO M C G ILLIVARY HEARSAY Klepacki arg ues he received ineffective assistance of counsel when his attorney failed to object to McGillivary testifying where a child had originally found the murder weapon. We disagree. To meaningfully protect an accused’s right to counsel , an accused is entit led to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Courts apply a two

- prong test to determine if counsel provided effective assistance: (1) whether counsel performed deficiently, and (2) whether the deficient performance prejudiced the defendant. Id. at 687. If a defendant fails to establish one prong of the test, this court need not address the remaining prong. State v. Hendrickson , 129 Wn.2d 61, 78, 917 P.2d 563 (1996). This is a mixed question of law and fact, reviewed de novo. Strickland , 466 U.S. at 698. To satisfy the first prong, the defendant must show that, after considering all the circumstances, counsel’s performance fell below an objective standard of reasonableness. State v. McFarland , 127 Wn.2d 322, 334

- 35, 899 P.2d 1251 (1995). The burden is on the defendant to show deficient performance. State v. Grier , 171 Wn.2d 17, 33, 246 P.3dNo. 33983

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17 1260 (2011). This court gives great deference to trial counsel’s performance and b egins the analysis with a strong presumption counsel performed effectively. State v. West , 185 Wn. App. 625, 638 , 344 P.3d 1233 (2015). A counsel’s failure to object to evidence is a classic example of trial tactics; only in egregious circumstances will it constitute deficient performance. State v. Madison , 53 Wn. App. 754, 763, 770 P.2d 662 (1989). McGillivary explained that she retrieved the murder weapon and called police because a child had found a gun near the school and dropped it in an alleyway n earby at a bus stop. By testifying that a child had originally found the gun near the school, it places the gun closer to where law enforcement found Klepacki. Had Klepacki raised a hearsay objection, the State would have been required to call the boy who found the gun as a witness. Having a boy testify that he found a gun on the way t o school would not have benefit ed Klepacki. It would have emphasized the danger a gun poses. We determine that defense counsel’s failure to object to McGillivary’s test imony was a legitimate tactical decision.
D. C OUNSEL NOT INEFFECTI VE FOR FAILING TO OB JECT TO D ETECTIVE D RESBA CK ’ S DEMONSTRATION OF W RIGHT ’ S PORTRAYAL OF HOW SHO OTER HELD GUN Klepacki contends he received ineffective assistance of counsel when his attorney
f

ailed to object to Detective Dresback’s demonstration of Wright’s portrayal of how the shooter held the gun. The State does not dispute Klepacki’s valid contention that theNo. 33983

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18 detective’s demonstration constitutes nonverbal hearsay. See , e.g. , In re Depende ncy of Penelope B. , 104 Wn.2d 643, 652, 709 P.2d 1185 (1985) . Instead, the State obliquely argues that defense counsel’s lack of objection was a legitimate trial strategy. With the following explanation, we agree. In closing, the State argued Klepacki wa s the shooter largely based on Detective Dresback’s demonstration of how Wright portrayed to him the shooter holding the gun above his shoulder. The State argued that Wright saw Tudor because Tudor was in front and that Wright saw the gun over Tudor’s sho ulder because Klepacki was reaching over Tudor with the gun. Klepacki countered the State’s argument in his closing: Shot over the shoulder? What did Mr. Wright say, shot over the shoulder? Did you hear Mr. Wright say anything like that when he’s givin g his observations about the shooter? Where did that come from, a shot over the shoulder? Did you hear any testimony about that in here? Detective Dresback tried to say something to that effect, but it wasn’t from a witness. 5 RP (Nov. 5, 2015) at 947. Klepacki, by not objecting to Detective Dresback’s demonstration, allowed him to argue that the evidence of how the shooter held the gun was unbelievable because the evidence did not come from a witness to the shooting. This is a classic example of tria l tactics, the kind we will not second

- guess absent extreme circumstances. This is not an extreme circumstance. Defense counsel’s closing argument on this point was sufficientlyNo. 33983

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19 sound to not warrant reversal. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
R AP 10.10 permits a defendant to file a pro se statement of additional grounds for review (SAG) if the defendant believes his appellate counsel has not adequately addressed certain matters. RAP 10.10(d) directs that the defendant should file his SAG within 30 days of receiving his appellate counsel’s brief and notice of the substance of rights and obligations under RAP 10.10. Here, Klepacki’s appellate counsel mailed the appellant’s brief to Klepacki and notified him of the substance of RAP 10.10 on Decem ber 12, 2016. Klepacki filed his first SAG on February 13, 2017 (raising 2 1 distinct argument s in his 5 grounds for review) and his supplemental SAG on July 25, 2017

. We deem the supplemental SAG in substantial violation of RAP 10.10(d) and address only those issues raised in the February 13, 2017 SAG

. 3
SAG Ground 1 : A. Bias of judge /

charging in the alternative Klepacki asserts , “Bias application of discretion and failing to protect the rights of the defendant, thereby handicapping the defense by allow ing the state a wide latitude with

3 We nevertheless reviewed the issues raised in the July 25, 2017 SAG and conclude they lack merit.No. 33983

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20 and to objections to the prosecution.” SAG at 1. Klepacki’s assertion does not inform us of the nature and occurrence of the claimed error. We , therefore , decline to review it. State v. Clark

- El , 196 Wn. App. 614, 625 , 384 P.3d 627 (2016)

. Klepacki also complains that the court allowed the State to charge him by alternative means, which prevented him from knowing the exact nature of the charge s . CrR 2.1(a)(1) permits charging in the alternative. Klepacki fails to ex plain how the charges were confusing. His mere assertion that the information was confusing is insufficient to warrant our review.
B. Improper instructions Klepacki argues the instructions were improper and confused the jury. But we will not review a cla imed instructional error in the absence of a preserved objection at trial. State v. Hickman , 135 Wn.2d 97, 104

- 05, 954 P.2d 900 (1998). Here, Klepacki did not object or take any exception to the trial court’s instructions

. SAG Ground 2:
1A. Prosecuto rial misconduct : Charging decision Similar to his argument above, Klepacki argues the prosecutor committed misconduct because he did not know what statute to charge. Because the law permits charging in the alternative, we reject Klepacki’s argument of pr osecutorial misconduct.No. 33983

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21 1B. Prosecutorial misconduct: Prosecuting a knowingly false case Klep acki argues that the prosecutor committed misconduct by prosecuting a case against him that the prosecutor knew was false. Klepacki points to the October 15

v ideotaped interview in which the prosecutor told Woods that Klepacki might not be convicted. This statement does not establish that the prosecutor knew the case against Klepacki was false. Up until Woods’s testimony, the State’s case against Klepacki rel ied on circumstantial evidence. The State had a store video that showed Klepacki and Tudor together shortly before the murder. The State also had a witness who saw two men, one with a gun, running away from the murder scene soon after the shooting. In a ddition, a deputy who responded to the call saw Klepacki running in the opposite direction from the murder scene and found a freshly placed gun holster near where Klepacki was hiding

. The evidence does not support Klepacki ’s argum ent that the prosecutor k new the case against Klepacki was false.
2A. Prosecutorial misconduct: Giving testimony during closing Klepacki argues that the prosecutor committed misconduct during closing arguments by testifying how the events happened on January 4. We disagree. T he prosecutor used the evidence admitted during trial to argue how the crime likely occurred. For instance, although no one actually testified that Klepacki reached over Tudor to shoot Giesbrecht, the evidence did permit the argument to be made. The jury was free toNo. 33983

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22 believe or disbelieve the State’s various arguments. To assure that the conviction was based only on evidence admitted during t he trial, and not on the lawyer s ’ arguments, the trial court instructed the jury: The lawyer s ’ remarks, statements and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers ’ statements are not evidence. The evidence is the testimony and the exhibits. . . . You must disregard any r emark, statement or argument that is not supported by the evidence or the law in my instructions. 5 RP (Nov. 5, 2015) at 909. We presume that the jury followed the court’ s instructions

. State v. Kalebaugh , 183 Wn.2d 578, 586, 355 P.3d 253 (2015). Becau se the prosecutor’s arguments were not evidence, but instead were arguments based on trial testimony, we reject Klepacki’s claim that the prosecutor committed misconduct by testifying.
2B. Prosecutor ial misconduct: Explanation of Klepacki’s injury Kle packi argues the prosecutor committed misconduct by telling the jury during closing argument that he cut his head by either being hit with the gun or running into a guide wire . Again, the trial court explained to the jury that the attorneys’ statemen ts du ring closing are not facts and any statements not supported by the evidence should be disregarded. I f the prosecutor’s statements to the jury were not supported by the evidence, we presume that the jury followed the court’s instructions and disregarded th e argument. Id.No. 33983

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23 2C. Prosecutor ial misconduct: How shooter held gun Klepacki argues the prosecutor committed misconduct by misstating the testimony how Wright described the shooter holding the gun. Klepacki claims that Wright described the shooter as holding the gun at shoulder level, not above the shoulder. As noted above, if the evidence did not support the prosecutor’s argument, we presume the jury disregarded it. Also, the jury was permitted to believe Detective Dresback’s description of how Wri ght portrayed the shooter.
2D. Prosecutor ial misconduct: Argument that Klepacki admitted that holster fell out of his pocket Klepacki argues the prosecutor committed misco nduct by misstating that Klepacki admitted to Detective Dresback that the holster fell out of his pocket. Klepacki argues the evidence clearly showed that he said his cell phone may have fallen out of his pocket. We presume the jury disregarded the prosecutor’s misstatement of the record. Nevertheless, the evidence showed that the h olster had been recently discarded in the vicin ity where Klepacki was hiding f r o m law enforcement. The jury could have reasonably believed that Klepacki discarded the holster. SAG Ground 3:
3A. Inef fective assistance of counsel: F ailure to file suppres sion motionNo. 33983

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24 Klepacki argues he received ineffective assistance of counsel because his counsel’s “failure to file a motion for a [CrR] 3.6(a) Suppression of Evidence Hearing.” SAG at 3. We are unable to determine what Klepacki believes should have been

s uppressed. Because we are unable to determine the nature of the claimed error, we will not review it.
3B. Inef fective assistance of counsel: F ailure to object at trial Klepacki argues he received ineffective assistance of counsel because his attorney d id “[n]ot object[ ] to any of the evidence the state admitted during trial.” SAG at 3. The record refutes Klepacki’s argument. Defense counsel objected throughout the entire trial. 3C. Ineffective assistance of counsel: Not hiring forensic expert
Kl epacki argues he received ineffective assistance of counsel because his attorney did not provide “forensic expert for defense rebuttal to state’s findings and testimony.” SAG at 3. Klepacki does not explain whether the evidence he thinks should have been challenged relates to the gun, the shoes, the holster, or the DNA evidence. Because we are unable to determine the nature of the claimed error, we will not review it.
3D. Ineffective assistance of counsel: Detective Lyle Johnston ’s speculation Klepa cki argues he received ineffective assistance of counsel because his attorney did not ask the trial court to strike Detective Johnston’s speculation that a guide wireNo. 33983

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- III State v. Klepacki

25 could have caused Klepacki’s head injury. Here, the trial court sustained defense

counse l’s objection that Detective Johnston’s opinion was speculation , but did not explicitly tell the jury to disregard the evidence. Nevertheless, the trial court instructed the jury to not consider evidence that was stricken or “ not admitted .” 5 RP (Nov. 5, 2015) at 907. Again, we presume the jury followed the trial court’s general instruction.
3E. Ineffective assistance of counsel: Not objecting at closing Klepacki argues he received ineffective assistance of counsel because his attorney failed to obj ect to the prosecutor’s description of how the shooter held the gun. Here, there was an issue of fact. Detective Dresbac k testified that Wright portrayed to him that the shooter held the gun above his shoulder. Defense counsel was not deficient for fail ing to object to an argument supported by the record. SAG Ground 4: 4A/B. Irrelevant evidence: Lack of DNA /prints on gun Klepacki argues the trial court erred when it admitted irrelevant evidence that forensics did not recover his or Tudor’s DNA/prints on the gun. Klepacki did not object to this testimony. He , therefore , waived his right to review on this issue. State v. Guloy , 104 Wn.2d 412, 422, 705 P.2d 1182 (1985); see also State v. Blake , 172 Wn. App. 515, 530, 298 P.3d 769 (2012). 4C/D

. Ir relevant evidence: Clothing not worn by himNo. 33983

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26 Klepacki argues the trial court erred when it admitted irrelevant evidence of pictures of hats and the bandana from Tudor’s residence because there was no evidence that he wore the hat or the bandana on the nigh t of the murder. Again, Klepacki did not object to this testimony. He , therefore , waived his right to review on this issue. Blake , 172 Wn. App. at 530.
4E. Irrelevant evidence: Nike shoes Klepacki argues the trial court erred when it admitted the Nik e shoes because forensic evidence was inconclusive about whether the trea d print matched the prints on the victim’s front door. Klepacki’s failure to object to this evidence precludes our review

. Id.
4F. Irrelevant evidence: Holster Klepacki argues th e holster was irrelevant because there was no evidence linking him to the holster. We disagree. The holster was recently placed where he was hiding from law enforcement. A jury could draw the reasonable inference that Klepacki hid the holster.No. 33983

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27 SAG Gr ound 5: Brady 4 violation Klepacki argues the State violated Brady by refusing to admit into evidence his boots or that he was wearing them

. T he record does not support this argument. Brady imposes a duty on the State to disclose material evidence favora ble to the defendant. See Brady , 373 U.S. at 87. If the State suppresses such evidence, this violates due process regardless of whether the State acted in good faith or bad faith. Id . To establish a Brady violation, a defendant must demonstrate the exi stence of each of three necessary elements: (1) the State must have suppressed the evidence, ei ther willfully or inadvertently, (2) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching , and ( 3) prejudice must have ensued such that there is a reasonable probability that the result of the proceeding would have differed had the State disclosed the evidence to trial counsel. State v. Mullen , 171 Wn.2d 881, 895, 259 P.3d 158 (2011). A defendant’s Brady claim fails if he or she fails to demonstrate any element. Id

. As to the first element, the State elicited testimony that Klepacki was wearing boots when Detective Dresb a ck interview ed him . The State also admitted an exhibit that showed Klepacki w earing boots the night of his interview. The State did not suppress any evidence

. We , therefore , reject Klepacki’s claim that the State committed a Brady

4 Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)

.No. 33983-1-111 State v. Klepacki
violation.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.

Lawrence-Berrey, A.CJ. 

### j WE CONCUR:

Siddoway, J. 1 Pennell, J.

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