IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 46287-7-II

Respondent, UNPUBLISHED OPINION

v.

LOUIS MARCEL PATTERSON,

Appellant.

BJORGEN, J. — Louis Marcel Patterson appeals from his conviction, following a jury 

trial, for attempted residential burglary. Patterson contends that (1) the prosecutor committed 

flagrant and ill-intentioned misconduct in closing argument by expressing his personal opinion as 

to Patterson’s credibility and guilt, and (2) defense counsel rendered ineffective assistance by 

failing to object to the prosecutor’s remarks during trial. We reverse and remand.

FACTS

On a foggy morning in December 2013, Charles Brandenburg, accompanied by his son, 

brought a load of Brandenburg’s belongings to the house into which he was moving, a large 

house on a secluded lot that had been on the market and vacant for some time. Upon arrival, 

they noticed a pickup truck parked at an angle under the garage eave. Brandenburg saw a man, 

Filed

Washington State

Court of Appeals

Division Two

December 8, 2015
No. 46287-7-II

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later identified as Patterson, on the roof, looking in an upper story window and “jiggl[ing]” the 

bottom corner of the window. Verbatim Report of Proceedings (VRP) at 73. Brandenburg 

announced himself, and Patterson “scurried” off the roof of the house and onto the ground. VRP 

at 72. 

Brandenburg, who knew that the owner of the house was considering having the roof 

inspected, asked if Patterson were a roofer. Patterson replied that he “[had] roofed before,” and 

the two spoke for less than a minute. VRP at 74. Brandenburg became suspicious because he 

thought Patterson seemed “nervous-ish.” VRP at 74. According to Brandenburg, Patterson did 

not introduce himself, offer any services, give a phone number, or inform Brandenburg about the 

condition of the roof. Patterson did not have any ladders or tools in the truck and, Brandenburg 

testified, talked quickly “about everything but the roof.” VRP at 75. 

While they were talking, Brandenburg saw a woman, later identified as Desiree 

Westerbee, “slid[e] around the side of the house” and get into Patterson’s truck. VRP at 78. 

Brandenburg thought Westerbee also seemed nervous, and she did not speak to him. Shortly 

after she got in the truck, Patterson walked to the truck, got in, and drove away. 

Brandenburg found muddy footprints leading from the driveway around the side of the 

house and noticed that someone had moved some items stored outside of the house. 

Brandenburg also noticed that someone had tampered with one of the doors so that “the latch 

was not in the door jamb anymore,” potentially allowing access to the house, but found no 

evidence that anyone had entered. VRP at 82. He clearly recalled closing and locking all the 

doors the previous night, because the owner had warned him about burglaries in the area. After 

confirming that the house’s owner had not arranged for anyone else to be at the house, 

Brandenburg reported the incident to police. 
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Cowlitz County Sheriff’s Deputy Joseph Reiss investigated the incident and located 

Patterson, who was driving the same truck, the next day. When Reiss approached the truck in his 

patrol car, Patterson sped away, taking a series of turns at high speed and heading back the way 

he had come. Reiss activated his lights and siren and gave chase, and Patterson eventually 

stopped in the driveway of the mobile home park Reiss had initially observed him leaving. 

Patterson stated that he turned the truck around because he had forgotten his cigarettes. 

Reiss questioned Patterson about the events at Brandenburg’s residence, and Patterson 

admitted he had visited the house with Westerbee and climbed on the roof. Patterson explained 

that they approached the house for no reason while he was giving Westerbee a ride to “meet 

some people, pick up a vehicle, or something,” and that he decided to climb on the roof to see 

whether it was new. VRP at 134-36. Patterson claimed to work as a roofer, but identified his 

employer only as “Dave” and could not provide any contact information other than that Dave 

lived in the same mobile home park where Patterson was staying. VRP at 140-41. 

PROCEDURAL HISTORY

The State charged Patterson with attempted residential burglary. Patterson waived a CrR 

3.5 hearing and stipulated that he had been on the roof of the house, was not licensed, invited, or 

otherwise privileged to be there, had not been hired or contracted to do any work there, and knew 

he was there unlawfully. Patterson pled not guilty and proceeded to trial. 

1. Trial Testimony

Brandenburg and Reiss testified to the facts as set forth above. Reiss also testified that 

criminals often target large, vacant houses on secluded lots in order to steal appliances and 

fixtures. After the court read the stipulation, the State rested. 
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Patterson called several friends and acquaintances who testified that he did roofing work. 

Dave Seaman, a former co-employee of Patterson, testified that he lived in the mobile home park 

and had worked with Patterson on roofing jobs. 

Patterson also testified on his own behalf. He began by admitting that he had several 

convictions for drug crimes and crimes of dishonesty, including theft and forgery. He claimed to 

have turned his life around, however. 

Patterson explained that, on the day in question, he had agreed to give Westerbee, who 

lived in the area of Brandenburg’s house, a ride to her car in Kelso. While they waited for a call 

from someone that Westerbee told him would provide gas money, she asked if Patterson wanted 

to “check out the view of houses she knows that was empty,” and they ended up at 

Brandenburg’s house. VRP at 187-88, 203. Patterson noticed a “For Sale” sign and, while 

walking around the house checking out the view, wondered if “maybe they’d have a job for” 

him. VRP at 189.

According to his testimony, after reparking the truck lengthwise next to the garage, 

Patterson used it to climb on the roof, hoping that if he discovered a problem, he could call the 

number on the sign and offer his services. Patterson admitted looking in the window, but denied 

trying to open it or otherwise enter the house or intending to commit any crime there. 

Patterson testified that, shortly after he began inspecting the roof, he noticed Brandenburg 

had arrived. Patterson described the remainder of the interaction consistently with 

Brandenburg’s account. 

On cross-examination, the prosecutor focused on various implausible elements in 

Patterson’s account. The court instructed the jury on second degree criminal trespass as an 

included offense. 
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2. Closing Argument

The State argued in closing that Patterson and Westerbee had gone to Brandenburg’s 

house to “scop[e] it out, to see how to gain access to it,” VRP at 250, and that nothing was 

missing because Brandenburg and his son arrived “in the nick of time.” VRP at 259. In the 

course of this argument, the prosecutor made various remarks using the words “I believe.” VRP 

at 249-50, 273. These included the following explanation from the prosecutor for why 

Patterson’s truck was empty:

[Patterson] was driving a . . . pickup, had no tools. I would suggest that there were 

no tools because he was meeting with [Westerbee] because they were up to no good. 

That, one of the things you heard, Deputy Reiss said, one of the things—while these 

houses have no personal belongings, they have big items that they get broken into 

for a reason. Appliances, metals and stuff, and that’s my—I believe that’s why this 

car was emptied out because of the anticipation of the big items that were being 

targeted for this particular day.

VRP at 248-49 (emphasis added). The prosecutor continued in a similar vein regarding

Patterson’s purpose for visiting the house:

We know they ended up there. We know that he didn’t have permission or any 

business being there, none whatsoever. They weren’t there to look at the house, 

they weren’t there to check to buy a house, they didn’t know the owners, they didn’t 

know Mr. Brandenburg, they had no permission, nothing, they had no business 

being there whatsoever. What we know is, he was not there for the view. He told 

me that. “I am—I’m not there for the view.” He tries to tell me, “I’m there to look 

for a job.” I believe he was there looking for a job, just not a roofing job. Because 

what we know is, he does a walk around the house. He tells you that.

VRP at 250 (emphasis added). The prosecutor used similar language in addressing Patterson’s 

potential accomplice liability based on Westerbee’s conduct:

We know they were there together. We know that, at some point, they walked 

around the house together, because that’s what he said. At some point, various 

items were moved. At some point, he got on the roof and she . . . was downstairs. 

At some point, he was trying to get in upstairs and she was—I believe she was 

trying to get in downstairs. And just as the downstairs door was unlatched, that’s 

when Mr. Brandenburg arrived.
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VRP at 272-73 (emphasis added). 

The prosecutor also made statements to the jury using the phrase “I’m assuming.” VRP 

at 254-57, 263. For example, the prosecutor described Westerbee’s conduct after Brandenburg 

arrived on the scene as follows: 

And she’s hiding, she’s being evasive, she’s sneaking around, and she just crawls 

into the passenger seat. What are you doing in the back of the house? You know, 

you think, well, okay, I’m looking to buy. You’re looking to buy, “Oh, hi. You 

have a really nice house, can I see it? . . . No, she sneaks in very quickly. I’m 

assuming as discreetly as possible, gets in the passenger seat, makes no contact, 

doesn’t explain why she’s in the back, why she’s doing that, because at this point, 

Mr. Brandenburg doesn’t know what’s going on back there.

VRP at 256-57 (emphasis added). The prosecutor again used the phrase in discussing Reiss’s 

pursuit of Patterson: 

[W]e know he’s the driver of the vehicle. We don’t know if he’s involved with the 

house on 122, we don’t know who he is. So, he agrees to tell him. I’m assuming

he didn’t stop because of what we call a guilty conscience. He knows this is the 

day after that the police were right behind him with the lights on. He had no choice 

but to talk. He doesn’t know what Deputy Reiss knows, he doesn’t know what he 

doesn’t know, but he talks.

VRP at 263 (emphasis added). Defense counsel did not object to any of the prosecutor’s 

remarks.

Patterson’s attorney did not address the prosecutor’s assumptions or statements of belief 

in closing argument. Instead, the defense conceded that Patterson committed criminal trespass 

and offered innocent or alternative explanations for the evidence as to the attempted burglary 

charge. 

The jury found Patterson guilty of attempted residential burglary, and the court entered 

judgment on the verdict. Patterson appeals.
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ANALYSIS

Patterson contends that the prosecutor’s statements amounted to prejudicial misconduct, 

incurable by remedial instruction, and thus require reversal despite defense counsel’s failure to 

object. In the alternative, Patterson contends that his attorney’s failure to object to the alleged 

misconduct denied him the right to the effective assistance of counsel. We first address the 

prosecutorial misconduct claim, then consider whether defense counsel rendered ineffective 

assistance.

I. FLAGRANT AND ILL-INTENTIONED PROSECUTORIAL MISCONDUCT

Patterson contends that the prosecutor’s remarks amounted to clear and unmistakable 

expressions of personal opinion as to Patterson’s credibility and guilt. From this, he argues that 

(1) the remarks prejudiced him because the credibility of his explanation for his presence at the 

house was the key issue in the trial and (2) “the misconduct was so pervasive that” no remedial 

instruction could have cured the prejudice because “the prosecutor interjected his opinion 

repeatedly throughout the argument.” Br. of Appellant at 11-12. The State counters that 

Patterson fails to show that the remarks likely affected the verdict or that a curative instruction 

would have been futile.

After setting out the standard of review, we first address whether the prosecutor’s 

remarks amounted to prejudicial misconduct. Concluding that they were improper and 

prejudicial, we then consider whether the misconduct merits reversal despite defense counsel’s 

failure to object.
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1. Governing Legal Standards

To prevail on a prosecutorial misconduct claim, a defendant must show that the 

prosecutor’s conduct was both improper and prejudicial “in the context of the record and all of 

the circumstances of the trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 

P.3d 673 (2012), cert. denied, 2015 WL 4127314 (Oct. 19, 2015). To establish prejudice, the 

defendant must “show a substantial likelihood that the misconduct affected the jury verdict.” 

Glasmann, 175 Wn.2d at 704. A defendant who failed to object at trial must also establish “that 

the misconduct was so flagrant and ill intentioned that an instruction would not have cured the 

prejudice.” Glasmann, 175 Wn.2d at 704.

A prosecutor enjoys “wide latitude to argue reasonable inferences from the evidence,” 

but “must ‘seek convictions based only on probative evidence and sound reason.’” Glasmann, 

175 Wn.2d at 704 (quoting State v. Casteneda-Perez, 61 Wn. App. 354, 363, 810 P.2d 74 

(1991)). A prosecutor who “throw[s] the prestige of his public office . . . and the expression of 

his own belief of guilt into the scales against the accused” deprives the defendant of the 

constitutional right to a fair trial. Glasmann, 175 Wn.2d at 703-04 (alteration in original)

(quoting State v. Monday, 171 Wn.2d 667, 677, 257 P.3d 551 (2011)). Similarly, a prosecutor 

commits misconduct by asserting his personal opinion of the credibility of the witness. State v. 

Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).

The Glasmann court emphasized that “a prosecutor cannot use his or her position of 

power and prestige to sway the jury,” quoting at length from the commentary to the American 

Bar Association Standards for Criminal Justice:

The prosecutor’s argument is likely to have significant persuasive force 

with the jury. Accordingly, the scope of argument must be consistent with the 

evidence and marked by the fairness that should characterize all of the prosecutor’s 

conduct. Prosecutorial conduct in argument is a matter of special concern because 
No. 46287-7-II

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of the possibility that the jury will give special weight to the prosecutor’s 

arguments, not only because of the prestige associated with the prosecutor’s office 

but also because of the fact-finding facilities presumably available to the office.

175 Wn.2d at 706. The court went on to discuss the “many cases warn[ing] of the need for a 

prosecutor to avoid expressing a personal opinion of guilt.” Glasmann, 175 Wn.2d at 706.

2. Improper Argument

In State v. McKenzie, 157 Wn.2d 44, 56, 134 P.3d 221 (2006), a case decided prior to 

Glasmann, our Supreme Court declined to hold that a prosecutor’s assertions of the defendant’s 

guilt amounted to misconduct, because they occurred during rebuttal 

in responses to defense counsel’s repetitive theme [that the defendant was 

innocent], and in each instance the deputy prosecutor was either rebutting defense 

counsel’s interpretation of the evidence or emphasizing facts supporting the State’s 

theory of the case. 

The court thus held that the defendant could not show that the assertions of guilt constituted “a 

‘clear and unmistakable’ expression of the deputy prosecutor’s personal opinion, divorced from 

the evidence.” McKenzie, 157 Wn.2d at 56-57 (quoting State v. Papadopoulos, 34 Wn. App. 

397, 400, 662 P.2d 59 (1983)). 

In contrast, the court in State v. Case, 49 Wn.2d 66, 68, 298 P.2d 500 (1956), held the 

following remarks by the prosecutor to be improper:

I doubt that you haven’t already made up your mind. Now, you must have, as 

human beings. But if you haven’t, don’t hold it against me, I mean, that is my 

opinion about what this evidence shows and how clearly this evidence indicates 

that this girl has been violated.

Our Supreme Court could not “interpret the quoted statement, taken in context, as anything other 

than an attempt to impress upon the jury the deputy prosecuting attorney’s personal belief in the 

defendant’s guilt.” Case, 49 Wn.2d at 68. 
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The prosecutor’s remarks here at issue fall much closer to Case than to McKenzie. First, 

the prosecutor explicitly phrased his remarks as statements of personal belief or assumptions and 

made them as part of his initial closing remarks, not in rebuttal. Second, as in Case, there is no 

reasonable way to interpret the statements: “that’s my—I believe that’s why this car was 

emptied out because of the anticipation of the big items that were being targeted for this 

particular day,” and “I believe he was there looking for a job, just not a roofing job,” VRP at 

248-50, as anything other than expressions of the prosecutor’s personal opinion that Patterson 

lied to the jury and actually intended to commit a crime in the house, the key issue in the case. 

In addition, the statements “I’m assuming he didn’t stop because of what we call a guilty 

conscience,” VRP at 263, and “he was trying to get in upstairs and . . . I believe she was trying to 

get in downstairs,” VRP at 273, cannot be interpreted as anything other than statements of the 

prosecutor’s personal opinion of guilt. 

We agree with Patterson that they amounted to clear and unmistakable expressions of 

opinion as to credibility and guilt. The remarks therefore amounted to misconduct under the 

standard articulated in McKenzie, 157 Wn.2d at 56-57. Because Patterson did not object, 

however, the question remains whether they merit reversal. Glasmann, 175 Wn.2d at 704.

C. Flagrant and Ill-Intentioned

The State contends that Patterson fails to show that the misconduct posed a substantial 

likelihood of affecting the verdict and argues that a curative instruction could have remedied any 

prejudice. We agree with the latter argument. 

As discussed, where the defendant did not object, appellate courts will reverse due to a 

prosecutor’s improper argument only if it amounts to flagrant and ill-intentioned misconduct, 

incurable by remedial instruction. Glasmann, 175 Wn.2d at 704. Such cases require reversal 
No. 46287-7-II

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because “there is, in effect, a mistrial and a new trial is the only and the mandatory remedy.” 

Case, 49 Wn.2d at 74. 

Our Supreme Court has made clear that “[r]eviewing courts should focus less on whether 

the prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting 

prejudice could have been cured.” State v. Emery, 174 Wn.2d 741, 762, 278 P.3d 653 (2012). 

The Glasmann court further specified, however, that “deciding whether reversal is required is not 

a matter of whether there is sufficient evidence to justify upholding the verdicts.” 175 Wn.2d at 

711. Thus, in considering such claims we should “not decide whether reversal is required by 

deciding whether . . . the evidence is sufficient” but must instead “focus . . . on the misconduct 

and its impact, not on the evidence that was properly admitted.” Glasmann 175 Wn.2d at 711.

In holding that Glasmann had shown a “substantial likelihood that the misconduct 

affected the jury verdict,” the Glasmann court relied in part on the fact that the evidence 

presented and instructions given could have supported convictions for lesser degrees of the 

charged crimes. 175 Wn.2d at 708. The Glassman court found the misconduct at issue there “so 

pervasive that it could not have been cured by an instruction,” noting that “‘the cumulative effect 

of repetitive prejudicial prosecutorial misconduct may be so flagrant that no instruction or series 

of instructions can erase their combined prejudicial effect.’” 175 Wn.2d at 707 (quoting State v. 

Walker, 164 Wn. App. 724, 737, 265 P.3d 191 (2011), review denied, 177 Wn.2d 1026 (2013)).

The State denies that the misconduct posed a substantial likelihood of affecting the 

verdict because “there was substantial evidence for the jury to find the appellant guilty.” Br. of 

Resp’t at 21. Our Supreme Court has expressly rejected this argument. Glassman 175 Wn.2d at 

711. Patterson correctly notes that the credibility of his explanation for his presence on the roof 

was crucial to his defense. The evidence against him, although indeed substantial, does not 
No. 46287-7-II

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qualify as overwhelming, and is arguably consistent with Patterson having committed only the 

lesser offense. Given the prestige of his office, the prosecutor’s expressions of personal belief as 

to Patterson’s guilt and lack of credibility likely influenced the jurors. We agree with Patterson 

that under the principles above the misconduct prejudiced him. 

Whether a curative instruction could have remedied the prejudice presents a more 

difficult question. Patterson correctly points out that the prosecutor made similar improper 

statements throughout his initial closing remarks. Had Patterson timely objected in the first 

instance, however, and the court given a proper curative instruction, it seems likely that the 

prosecutor would have stopped phrasing the inferences he wished the jury to make in terms of 

his personal belief. The jury furthermore, would presumably not have considered such remarks 

in its deliberations had it received a proper and thorough remedial instruction. 

Patterson bears the burden of showing a curative instruction futile. Glasmann, 175 

Wn.2d at 704. He has not carried that burden. We hold that a timely objection and proper 

instruction from the court could have remedied the prejudice stemming from the misconduct 

here. Because Patterson did not object, then, the improper remarks do not merit reversal.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Patterson argues in the alternative that, if a curative instruction could have remedied the 

prejudice flowing from the prosecutor’s improper argument, defense counsel’s failure to object 

amounted to deficient performance that prejudiced his case. Br. of Appellant 12-13. We agree. 

Appellate courts review claims of ineffective assistance of counsel de novo, as they 

present mixed questions of law and fact. State v. A.N.J., 168 Wn.2d 91, 109, 225 P.3d 956 

(2010). A defendant who raises an ineffective assistance claim “bears the burden of showing 

that (1) his counsel’s performance fell below an objective standard of reasonableness and, if so, 
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(2) that counsel’s poor work prejudiced him.” A.N.J., 168 Wn.2d at 109. “The benchmark for 

judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the 

proper functioning of the adversarial process that the trial cannot be relied on as having produced 

a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984). Although “there is a strong presumption that defense counsel’s conduct is not deficient,” 

that presumption is rebutted if “no conceivable legitimate tactic explain[s] counsel’s 

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

The prosecutor’s improper remarks went to the key issue in the case—Patterson’s 

credibility—and “thr[ew] the prestige of his public office . . . and the expression of his own 

belief of guilt into the scales against the accused.” Case, 49 Wn.2d at 71. The Glasmann court 

noted that “many cases warn of the need for a prosecutor to avoid expressing a personal opinion 

of guilt.” 175 Wn.2d at 706. 

The prosecutor made similar statements of personal belief several times during his 

argument. Defense counsel made no attempt to somehow exploit the improper remarks to 

Patterson’s advantage, and we can perceive no way in which refraining from any objection to 

such statements could serve Patterson’s interests. Thus, no conceivable legitimate tactic explains 

the failure of Patterson’s attorney to object to the prosecutor’s argument. We agree that defense 

counsel’s conduct fell below an objective standard of reasonableness.

For the reasons discussed in part I above, the failure to timely object and obtain a curative 

instruction from the court also prejudiced Patterson’s case. Patterson thus has established both 

deficient performance and prejudice. Under the case law above, this failure denied him the right 

to the effective assistance of counsel. The remedy is to reverse the attempted burglary 
No. 46287-7-II

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conviction and remand for further proceedings. Reichenbach, 153 Wn.2d at 137.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

BJORGEN, J.

I concur:

JOHANSON, C.J.
No. 46287-7-II

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Melnick (dissent) — I respectfully disagree with the majority’s holding that the prosecutor 

improperly expressed his personal opinion as to Louis Marcel Patterson’s credibility and guilt 

during closing argument. The prosecutor argued inferences from the evidence admitted at trial. 

He did not express a personal opinion.1 However, even if the remarks were improper, there is no 

prejudice. 

Because we review allegations of prosecutorial misconduct during closing argument in 

light of the entire argument, the issues in the case, the evidence discussed during the argument, 

and the court's instructions, State v. Sakellis, 164 Wn. App. 170, 185, 269 P.3d 1029 (2011), the 

following facts and their connection to the prosecutor’s closing argument are especially important 

to this discussion. 

At his trial, Patterson stipulated to the facts that constituted guilt of trespass in the second 

degree. Patterson argued that he did not intend to commit a crime inside the residence, and thus 

he was not guilty of attempted residential burglary. Patterson testified as follows:

[Patterson]. I unloaded all my equipment out of my truck. Not planning on 

looking at a roofing job, so I—

[Defense Counsel]. You unloaded it out of your truck where?

[Patterson]. Yeah—at the Tenant Way house. 

[Defense Counsel]. Oh, down at the—

[Patterson]. Down—

[Defense Counsel]. —mobile home park? 

[Patterson]. Yes. 

[Defense Counsel]. And do you—what do you normally have in the truck? 

[Patterson]. Normally, I have a short ladder, and extension ladder that will 

go up a couple—you know, the big, long ones. And a bucket of tools, my toolboxes, 

they're all in my diamond-plate box that were in the back of the pickup, and 

miscellaneous. It depends on if I'm doing plumbing or not, I grab a certain bin. If 

I'm going to a plumbing job, I'll grab that bin. If I go to a roofing job, I grab my 

roofing stuff that's laying on the side of the house and load it up. 

 

1

I am aware that the majority is reversing Patterson’s conviction based on ineffective assistance 

of counsel for failing to object; however, I do not believe this issue should be addressed because 

the prosecutor’s arguments were neither improper nor prejudicial. 
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[Defense Counsel]. So, you started to say you didn't have that stuff with 

you—

[Patterson]. Correct. 

[Defense Counsel]. —on this particular trip? 

[Patterson]. I did not. I had just unloaded everything that night to clean up 

the back of the truck to get prepared for other jobs. And I did not have my 

equipment with me. 

Report of Proceedings (RP) at 189-190. In closing argument, Patterson urged the jury to convict 

him only of this misdemeanor. 

From this evidence, the prosecutor argued, “I believe that’s why this car was emptied out 

because of the anticipation of the big items that were being targeted for this particular day.” RP 

at 249. And, “What we know is, he was not there for the view. He told me that. ‘I am—I’m not 

there for the view.’ He tries to tell me, ‘I’m there to look for a job.’ I believe he was there looking 

for a job, just not a roofing job. Because what we know is, he does a walk around the house. He 

tells you that.” RP at 250. This argument is based on or deduced from the evidence in the case.

Other evidence at trial included that Charles Brandenburg arrived at the house into which 

he was moving and saw Patterson on the roof, jiggling a window. Patterson “scurried off the roof” 

and began talking to Brandenburg. While doing so, he Brandenburg Desiree Westerbee, “slid[e] 

around the side of the house” and get in the truck. RP at 72, 78. Brandenburg testified that 

Westerbee seemed nervous. Brandenburg inspected the area and found muddy footprints leading 

from the driveway around the side of the house. He noticed that someone had moved items stored 

outside of the house. Brandenburg also discovered that someone had tampered with one of the 

doors so that “the latch was not in the door jamb anymore,” potentially allowing access to the 

house. RP at 82. He clearly recalled closing and locking all the doors the previous night, because 

the owner had warned him about burglaries in the area. 
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From this evidence, the prosecutor argued, “At some point, [Patterson] got on the roof and 

[Westerbee] . . . was downstairs. At some point, he was trying to get in upstairs and she was—I 

believe she was trying to get in downstairs. And just as the downstairs door was unlatched, that’s 

when Mr. Brandenburg arrived.” RP at 272-273 

At the end of the evidence but prior to closing argument, the trial court instructed the jury, 

in pertinent part, as follows: 

The lawyers' 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 and stipulations. The law is contained in my instructions 

to you. You must disregard any remark, statement, or argument that is not supported 

by the evidence or the law in my instructions. 

RP at 231.

Prosecutorial misconduct in closing argument occurs when a prosecuting attorney 

expresses personal opinions on the guilt of a defendant, the credibility of a witness, or issues in 

the case. State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996); State v. Dhaliwal, 150 

Wn.2d 559, 577-78, 79 P.3d 432 (2003). We view the challenged statements in context to decide 

if the prosecutor is expressing a personal opinion, independent of the evidence. State v. McKenzie, 

157 Wn.2d 44, 53, 134 P.3d 221 (2006). “[a] prosecutor cannot use his or her position of power 

and prestige to sway the jury and may not express an individual opinion of the defendant's guilt, 

independent of the evidence actually in the case.” In re Pers. Restraint of Glasmann, 175 Wn.2d 

696, 706, 286 P.3d 673 (2012). A prosecutor enjoys “wide latitude to argue reasonable inferences 

from the evidence.” Glasmann, 175 Wn.2d at 704.

“It is not uncommon for statements to be made in final arguments which, standing 

alone, sound like an expression of personal opinion. However, when judged in the 

light of the total argument, the issues in the case, the evidence discussed during the 

argument, and the court's instructions, it is usually apparent that counsel is trying 

to convince the jury of certain ultimate facts and conclusions to be drawn from the 
No. 46287-7-II

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evidence. Prejudicial error does not occur until such time as it is clear and 

unmistakable that counsel is not arguing an inference from the evidence, but is 

expressing a personal opinion.” 

McKenzie, 157 Wn.2d at 53-54 (quoting State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 

59 (emphasis added), overruled on other grounds, 47 Wn. App. 232, 734 P.2d 51 (1987)).

In State v. Armstrong, 37 Wash. 51, 54, 79 P. 490 (1905), the Supreme Court affirmed the 

defendant’s conviction and found the prosecutor did not err when he stated, “I think you will agree 

with me that this is the worst homicide that ever occurred in the county.” The court reasoned, 

[T]here is a distinction between the individual opinion of the prosecuting attorney, 

as an independent fact, and an opinion based upon or deduced from the testimony 

in the case. We think the fair construction of the language used by the prosecuting 

attorney in this case is that the testimony led him to the conclusion that the appellant 

was guilty, and that the jury should reach the same conclusion. There was no 

impropriety in this. 

Armstrong, 37 Wash. at 54-55. 

In State v. Hoffman, 116 Wn.2d 51, 94, 804, P.2d 577 (1991), the defendant alleged 

prosecutorial misconduct when the prosecutor used the phrases: “I think” and “I think the evidence 

shows.” In rejecting the argument and affirming the defendant’s convictions, the court said, “We 

have carefully examined the whole of the prosecutor's argument and conduct in closing argument 

and conclude that there was no unfair assertion of personal opinions, appeal to the passion or 

prejudice of the jury or misinformation given to the jury regarding the law.” Hoffman, 116 Wn.2d 

at 95.

The situation in State v. Robinson, No. 71929-7-I, 2015 WL 5098707, at *7-8 (Wash. Ct. 

App. Aug. 31, 2015) is analogous to the instant case. In Robinson, the defendant argued the 

prosecutor’s use of the words “we know” in closing constituted witness vouching. Robinson, 2015 

WL 5098707, at *8. Because the prosecutor used the term to marshal evidence already admitted 
No. 46287-7-II

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in trial and the reasonable inferences therefrom, and not for any improper purpose, no prosecutorial 

misconduct occurred. Robinson, 2015 WL 5098707, at *7. 

In the present case, like in Robinson, the prosecutor used the term “I believe” to marshal 

evidence already admitted in trial. He tried to convince the jury of “‘certain ultimate facts and 

conclusions to be drawn from the evidence.’” McKenzie, 157 Wn.2d at 54 (quoting Papadopoulos, 

34 Wn. App. at 400). It is not clear and unmistakable that the prosecutor expressed a personal 

opinion. In part, the prosecutor even argued to the jury using a paraphrase of the defendant’s own 

testimony. The prosecutor argued the evidence and the reasonable inferences therefrom. The 

prosecutor’s argument did not constitute misconduct. 

That the majority’s reliance on State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956), is 

misplaced. In that case, the prosecutor impressed upon the jury his personal belief in the 

defendant’s guilt when he said,

I doubt that you haven’t already made up your mind. Now, you must have, as 

human beings. But if you haven’t, don’t hold it against me. I mean, that is my 

opinion about what this evidence shows and how clearly this evidence indicates 

that this girl has been violated. I doubt in my mind that anyone at this point has 

any question in their mind about the guilt or innocence of this man.

Case, 49 Wn.2d at 68. Here, the prosecutor’s comments are qualitatively different from those in 

Case. Here, the prosecutor did not state his personal opinion about Patterson’s guilt. He argued 

reasonable inferences from the evidence admitted at trial.

It must also be remembered that Patterson did not object to the prosecutor’s closing 

argument. Therefore, the issue is waived unless the misconduct was “‘so flagrant and illintentioned that it evinces an enduring and resulting prejudice that could not have been neutralized 

by an admonition to the jury.’” State v. Weber, 159 Wn.2d 252, 270, 149 P.3d 646 (2006) (quoting 

State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)). Even if the prosecutor’s remarks 
No. 46287-7-II

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are considered improper, any error by the prosecutor was not flagrant and ill-intentioned.2 Nor did 

the remarks cause any prejudice. 

In examining the evidence as a whole, the prosecutor’s comments were not prejudicial. 

Patterson stipulated that he had no right to be at the remote property or on the roof. He stipulated 

to being guilty of trespass in the second degree. When the new occupant of the house arrived, he 

saw Patterson on the roof of the house jiggling a window. Patterson scurried from the roof while 

his companion slid around the side of the house and entered Patterson’s truck. Items around the 

house had been moved. Even though the doors had been locked and closed the previous night, 

someone tampered with a door so it was no longer latched. Easy access to the interior of the house 

existed. Patterson’s truck was empty. 

In examining the evidence, the arguments as a whole, the issues in context, and the jury 

instructions, I cannot say that the prosecutor’s comments were improper, flagrant, or illintentioned, or prejudicial to Patterson. I would affirm Patterson’s conviction.

Melnick, J.

 

2

I want to make it clear that prosecutors should avoid using the term, “I believe” in closing 

argument. Using other terms, e.g., “The evidence shows” or “The State submits the reasonable 

inferences are,” will not give rise to the same issues of prosecutorial misconduct or prosecutorial 

error, or engender any confusion as to what the prosecutor means.