FILED COURT OF APPEALS DWI STATE OF WASHINGTON 

### 2018OCT 22 MI 8:29

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON ) No.76005-0-1 ) ) DIVISION ONE Respondent, )

) UNPUBLISHED OPINION v. ) ) JASON LEE GAMACHE, ) ) Appellant. ) FILED: October 22,2018

) 

### BECKER,J.— Jason Gamache was convicted offelony murder. The evidence showed that he broke into the home of a sleeping neighbor and stabbed him to death in the course ofstealing his pain medication. We affirm. FACTS On the morning ofAugust 2,2013,Wayne McCune's wife left their home around 7:00 a.m.to go to work. When she returned around 6:00 p.m.,she found McCune lying dead on the floor. McCune had been stabbed 25 times and his carotid artery was severed. The file cabinet drawer where McCune kept his pain medication had been forced open. Two pill bottles, containing hydrocodoneacetaminophen and Avinza,were found empty. Auburn police interviewed McCune's neighbor,Ruby Jo Brazeal. She told them Jason Gamache had been staying with her, but she had notseen him since the day of McCune's death. Gamache,Brazeal,and McCune all suffered from chronic health conditions,and regularly took prescription pain medication. In theNo.76005-0-1/2

'past, McCune and Gamache had shared medications. They had a falling out in 2012when Gamache tried to take some of McCune's pain medication without permission. Since that time,the two had not had any contact. The police pieced together Gamache's whereabouts on the day of McCune's death. Gamache met Brazeal at the nearby Muckleshoot Casino just before 9:00 a.m. He told her he was leaving to pick up pain medication from the pharmacy. Surveillance video showed Gamache leaving the casino at 9:01 a.m. and returning at 10:35 a.m. When he returned,he was wearing different clothes. Gamache then offered Brazeal roughly 15 hydrocodone-acetaminophen pills and

a pill bottle containing granulesfrom an Avinza capsule. Gamache remained at the casino until 5:30 p.m.that day. After leaving the Muckleshoot Casino, Gamache traveled to the Snoqualmie Casino. Surveillance video showed that Gamache largely remained in his vehicle,in the casino parking lot over the nextfive days, until he approached a shuttle bus driver complaining of pain and dizziness. An ambulance took him to a nearby hospital where Gamache told a doctor that he had been mugged. After being treated for dehydration,Gamache left the hospital and walked back to his vehicle at the Snoqualmie Casino. Officers located him there on August 7and arrested him. In Gamache's vehicle,officers found a single Avinza tablet and a rag containing what appeared to be blood. Blood on the rag was consistent with McCune's DNA (deoxyribonucleic acid). A blood stain found on Gamache's shoe

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was also consistent with McCune's DNA. The shirt Gamache was wearing when he left the Muckleshoot Casino on the morning ofthe murder was never located. Gamache initially denied that he had left the Muckleshoot Casino for an hour and a half that morning. Informed thatthe casino surveillance video contradicted his statement, Gamache changed his story and told police that he left to go to a nearby secondhand store. The store's video surveillance did not show Gamache at the store. Gamache gave conflicting statements to the police aboutthe clothes he was wearing on the day ofthe murder and his whereabouts in the five days following the murder. The State charged Gamache with felony murder in the first degree predicated on both second degree robbery and attempted second degree robbery. After a four week trial, the jury convicted Gamache as charged. He

was sentenced to 280 months. Sufficiency ofthe Evidence Gamache's first challenge is to the sufficiency ofthe evidence supporting felony murder. "The testfor determining the sufficiency ofthe evidence is whether,after viewing the evidence in the light mostfavorable to the State,any rational trier offact could have found guilt beyond a reasonable doubt." State v. Kintz, 169 Wn.2d 537,551,238 P.3d 470 (2010). "'When the sufficiency ofthe evidence is challenged in a criminal case,all reasonable inferences from the evidence must be drawn in favor ofthe State and interpreted most strongly against the defendant." Kintz, 169 Wn.2d at 551,quoting State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). Although Gamache contested the

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State's evidence at trial, the presence of conflicting evidence does not mean the guilty verdict was not supported by sufficient evidence. Reviewing courts "defer to the trier offact on issues ofconflicting testimony,credibility ofwitnesses,and the persuasiveness ofthe evidence." State v. Killinqsworth, 166Wn.App.283, 287,269 P.3d 1064,review denied, 174 Wn.2d 1007,278 P.3d 1112(2012). To convict Gamache offelony murder,the State had to establish that Gamache killed McCune "in the course of or in furtherance"of a predicate felony,

or "in immediate flight therefrom." RCW 9A.32.030(1)(c)(5). The homicide must be within the "res gestae"ofthe predicate felony, i.e., "there was a close proximity in terms oftime and distance between the felony and the homicide." State v. Leech, 114 Wn.2d 700,706,790 P.2d 160 (1990). Moreover,the State must prove "that the death was a probable consequence ofthe felony and must specifically prove that the felony began before the killing." State v.Wang, Wn.App._,424 P.3d 1251, 1257(2018),quoting State v. Irbv, 187Wn.App. 183,201,347 P.3d 1103(2015),review denied, 184 Wn.2d 1036,379 P.3d 953 (2016). Gamache argues that any connection between him, McCune's death,and the robbery of McCune's pills was purely speculative,and therefore the State could not show that McCune's death was a consequence ofthe robbery. Gamache disregards the extensive evidence—circumstantial,but not speculative—that he forcibly took McCune's pills and McCune died in the course ofthe robbery. The drawer holding McCune's medication wasfound pried open, while the rest of McCune's home appeared to be left undisturbed. Gamache

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knew where McCune kept his medication. Gamache knew he was notwelcome in McCune's home. Gamache had no reason to enter McCune's home other than to obtain McCune's pain medication. Two bottles of pills were empty,and on the day of McCune's murder, Gamache provided Brazeal with pills matching those missing from McCune's home. When questioned by police, Gamache repeatedly lied about his whereabouts on August 2. Gamache also lied aboutthe shirt he was wearing when he left the casino. Gamache had blood matching McCune's DNA profile on his shoes and on
a rag in his car. Attrial, the State's forensic scientist testified the blood "matches the DNA profile ofWayne McCune.The estimated probability ofselecting an unrelated individual at random from the United States population with a matching profile is 1 in 260,000." The State's forensic scientist stated that "the DNA typing profile obtained from the bloodstains on the right shoe was consistent with coming from a male individual, and matches the DNA profile ofWayne McCune. And the estimated probability of selecting an unrelated individual at random from the United States population with a matching profile is 1 in 850 quadrillion." DNA found on McCune's empty hydrocodone-acetaminophen bottle was also consistent with a mixture of McCune's and Gamache's DNA. It was "230 times

more likely that the observed DNA profile occurred as a result of a mixture of Wayne McCune and Jason Gamache than if it originated from Wayne McCune and an unrelated individual selected at random from the United States population."

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We conclude there was sufficient proofthat Gamache killed McCune in the course of robbing him. The court allowed the jury to consider attempted robbery as well as robbery as the predicate for felony murder. Gamache argued that the evidence

was insufficient to support a finding of attempted robbery because there was no way the jury could find that he fatally stabbed McCune with the intent to steal his pills, yetfailed to complete the theft ofthe pills. Gamache contends the jury may not have been unanimous as to the means by which he was guilty offelony murder,and reversal is the required result. See State v. Lambert, 199 Wn.App. 51,78,395 P.3d 1080,review denied, 189 Wn.2d 1017,404 P.3d 499 (2017) (reversing felony murder conviction due to insufficient evidence to support the alternative means ofthe predicate burglary). It does not appear that an attempt is an alternative means of committing the completed crime. An attempt to commit a crime is defined as an offense included in the crime itself. RCW 10.61.010. In any event,the evidence was sufficient to prove Gamache either attempted a robbery or completed a robbery. Contrary to Gamache's claim,there is no authority holding that a conviction for attempt can be sustained only ifthe crime is not completed. Rather,to prove an attempt,the State must simply show that the defendant acted with the intent to carry out a crime and took a substantial step towards the completion ofthat crime. RCW 9A.28.020. As discussed above,the State presented substantial evidence from which a juror could infer that Gamache took the substantial step of entering McCune's home with the intent to take his pain medications. A

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reasonable juror could have found that Gamache at least tried to rob Wayne of pills and killed him in the course ofthat attempt,even if the juror lacked certainty that Gamache actually had McCune's pills with him when he left the house. Viewing the evidence in the light mostfavorable to the State,we conclude it was sufficient to prove that Gamache caused McCune's death in the course of robbing or attempting to rob him. Detective Lind's Testimony Gamache contends he was prejudiced by the admission ofevidence regarding the 2012 incident in which he tried to take McCune's pain pills without permission. A pretrial hearing was held to determine the admissibility ofthe evidence. Auburn Detective David Lind testified that on January 9,2012,some 18 months before the murder,he was dispatched to respond to a call from McCune. Lind said McCune told him that Gamache came into his home while McCune was sleeping and attempted to take his pain medication. According to Lind, McCune said he and Gamache had similar back problems and had a history of sharing medication. McCune told Lind that he did not wish to press criminal charges, but he wanted Gamache to know he was no longer welcome on his property. Lind testified that he then wentacross the street to speak to Gamache. Gamache admitted that he had tried to take some pills when he found McCune asleep and realized,when McCune woke up,that he had probably crossed a line. Lind said Gamache was apologetic.The incident ended with Lind informing Gamache that he was not welcome in McCune's home,and Gamache confirming that he understood.No.76005-0-1/8 After hearing Lind's testimony about Gamache's prior act,the trial court ruled it was admissible to show that Gamache knew where McCune kept his pills and knew McCune did not want Gamache in his house. And I'm satisfied the relevance ofthat is basically four things. One is that they shared medication. Secondly,from the statements of Mr. Gamache basically that Mr. McCune was asleep and it probably wasn't wise to take the pills. It goes to show that he knew where the pills were kept by Mr. McCune. Third,that there was a disagreement or complaint and that, fourth,as a result ofthat, the officer basically trespassed Mr. Gamache from the McCune residence. Attrial, Lind's testimony about his communications with McCune was kept to a minimum. At the start of Lind's direct examination,the prosecutor specifically requested that Lind not get into the specifics. Lind testified that McCune discussed a dispute he was having with Gamache over pain medication. "I was told basically that it was a neighbor dispute and that Wayne wanted to try and keep things civil amongst neighbors.And rather than going down a road of prosecution and potentially jail, he wanted to try and keep things friendly and decided that it would be more civil in nature than criminal." Gamache did not object. Lind moved on to testify aboutwhat Gamache said:that he found McCune sleeping,that he wentto get a pill out of cabinet,that McCune woke up and was surprised,and that he now understood,as a result ofthe officer's visit, thatwhatever agreement he and McCune had as neighbors "was now over and that he no longer wanted him at his residence." In closing,the prosecutor emphasized that the testimony was offered to show Gamache's knowledge: The Defendant

## knows where Wayne McCune keeps his drugs. He knows whatdrugs Wayne McCune has. 8No. 76005-0-1/9

And that's exactly why thattestimony from Officer Lind regarding that January 2012 incident,why that's important. When Officer Lind goes and talks to him, he admits -- he,being Mr. Gamache,admits that he knew where Wayne kept his drugs. He knew whattype ofdrugs he kept, that he shared at times. He knew how to let himself in the home to access those. Gamache contends admitting Lind's testimony was error because the jury

was able to use it as propensity evidence,the prejudice ofthe testimony outweighed its probative value,and there was no limiting instruction. He also contends Lind's testimony contained hearsay and a portion of it violated the confrontation clause. Propensity Under ER 404(b),"evidence ofother crimes,wrongs,or acts is not admissible to prove the character ofa person in order to show action in conformity therewith. It may,however,be admissible for other purposes,such as proofof motive,opportunity, intent, preparation, plan,knowledge,identity, or absence ofmistake or accident." This court reviews the trial court's ruling to admit or exclude 404(b)evidence for an abuse ofdiscretion. State v. Fisher, 165 Wn.2d 727,745,202 P.3d 937(2009). Wefind no abuse ofdiscretion in the admission of Lind's testimony as proofthat Gamache knew where the pills were and knew that McCune was unwilling to share them with him. A trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. ER 403.This balancing ofthe probative value ofa prior act versus its prejudicial effect should be done on the record. State v. Jackson, 102Wn.2d 689,693,689 P.2d 76

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(1984). The absence of a record may preclude effective appellate review. "Moreover,a judge who carefully records his reasonsfor admitting evidence of

• prior crimes is less likely to err, because the process ofweighing the evidence and stating specific reasonsfor a decision insures a thoughtful consideration of the issue." Jackson, 102Wn.2d at 694. Gamache contends admitting the evidence of his prior encounter with McCune was reversible error because the court did not conduct an express on-the-record balancing. Failure to balance probative value versus prejudice on the record "requires reversal only if the error,within reasonable probability, materially affected the outcome ofthe trial." State v. Halstien, 122Wn.2d 109, 126-27,857 P.2d 270 (1993). If the record as a whole is sufficient to permit meaningful review,a reviewing court may affirm the introduction of ER 404(b)testimony. State v. Donald, 68Wn.App.543,547,844 P.2d 447,review denied, 121 Wn.2d 1024, 854 P.2d 1084 (1993). Evidence of Gamache's prior attempt to take McCune's pills was highly probative. McCune's murderer pried open the cabinet where McCune kept his medication,while leaving other items ofvalue untouched. The trial court correctly identified the relevant purpose for admitting evidence ofGamache's earlier confrontation with McCune. It established that Gamache knew the pills

were kept in McCune's cabinet and that he did not have permission to be in McCune's home. The parties argued aboutwhether the evidence was more probative than prejudicial. The court instructed the State notto refer to the act as a "theft", and the overall tenor ofthe hearing demonstrates the court's awareness

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ofthe obligation to balance probative value against prejudice even ifthe court did not use those specific words. The manner in which the prior act was presented emphasized its relevance for this proper purpose. To the extent the court erred in being less explicit than our case law requires,the error did not materially affect the outcome ofthe trial. The record as
a whole is sufficient to permit meaningful review,and we conclude the court did not abuse its discretion in admitting evidence ofthe previous pill-taking incident under ER 404(b). No Limiting Instruction Gamache contends the trial courtshould have given a limiting instruction when Lind testified. Trial courts are not required to provide a limiting instruction

sua sponte. State v. Russell, 171 Wn.2d 118, 124,249 P.3d 604 (2011). Defense counsel stated,"We don't have a limiting instruction in mind at this moment,but we'll think aboutthat . .. ." The defense did not offer a limiting instruction. Because Garnache did not request a limiting instruction,the trial court did not err by failing to give one. Hearsay In the pretrial hearing,the trial court recognized that Detective Lind's testimony about his conversation with McCune during the prior incidentwould be hearsay to the extent that he quoted what McCune said. But because the significant information about the confrontation would come in through the nonhearsay statements Gamache made to Lind,the court concluded there would be
no hearsay problem:

11No. 76005-0-1/12 [DEFENSE COUNSEL]:Your Honor,with respect to the hearsay, I would ask thatwhen the officer goes to describe his contact with Mr. McCune that it be simply limited to,"We got a complaintfrom Mr. McCune,"because anything else would just be

-- THE COURT:Well, he basically contacted Mr. McCune and I think everything else is going to come out through the statements and the conversation he had with Mr. Gamache.So,but clearly Mr. McCune's statements to the officer are hearsay.The fact that he wentthere, received a complaint,and talked to the Defendant,and that the Defendant confirmed a lot of the things that I -- or all ofthe things, I think,that I've just indicated I'm finding relevant. It should be fairly brief, I would think. Byfailing to object to the minimal amount of hearsay the officer included in his recounting ofwhat McCune said, Gamache waived the hearsay issue. Even
were that not the case,the admission of hearsay is subject to harmless error analysis. State v.Watt, 160 Wn.2d 626,630,160 P.3d 640 (2007). Gamache does not identify any meaningful prejudice resulting from Lind's brief discussion of his conversation with McCune. Confrontation Clause Gamache contends the admission of Lind's testimony aboutwhat McCune said violated the Confrontation Clause because he could not cross-examine McCune aboutthe January 2012 incident. The confrontation clause "bars admission oftestimonial statements ofa witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." State v. Koslowski, 166Wn.2d 409,417, 209 P.3d 479(2009)(internal quotation marks omitted),quoting Davis v. Washington, 547 U.S. 813,821, 126 S.Ct. 2266, 165 L. Ed.2d 224 (2006)). Because Gamache did not raise an objection based on the confrontation clause,the alleged error is not preserved for review. State v. O'Cain, 169 Wn. 12No.76005-0-1/13

App.228,232,279 P.3d 926 (2012). In addition, any error was harmless. See Watt, 160 Wn.2d at 635. Purpose ofArrest Gamache claims the court erred by allowing the State to present an officer's testimony that Gamache was arrested on August 7for "another matter." Although he classifies this as prosecutorial misconduct, it is properly characterized as another ER 404(b)issue. In the wake of McCune's murder on August 2,2013,Brazeal's husband realized his rifle was missing. Because Gamache was staying with the Brazeals, he became the prime suspect in the rifle's disappearance. The police issued an arrest bulletin for Gamache. When he was arrested at the Snoqualmie Casino

on August 7,it was for theft ofthe rifle, notfor murder. Ultimately, Gamache was not charged with stealing the rifle. Attrial, the parties grappled with how to describe the reason for Gamache's arrest. The evidence implicating him in the murder was largely undeveloped at the time ofthe arrest. The State was concerned that the jurors might think police improperly arrested Gamache based on a mere suspicion of murder if it was not explained that police had probable cause to arrest him for stealing a firearm. Gamache countered that testimony about an allegation of a stolen firearm was evidence ofa prior bad act and inadmissible because it was irrelevant to the charge of murder. The trial court excluded mention of the firearm as more prejudicial than probative. The court ruled that instead,the jury

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should simply be informed that the police arrested Gamache based on a bulletin about an unrelated crime. Gamache objected that a vague reference to an arrest on a matter unrelated to the murder could lead the jury to speculate that he had been involved in another serious crime in addition to the murder. The trial court dismissed this concern as unrealistic: THE COURT:I think both the State and the defense are anticipating problems with the jury deliberation that aren't realistic. It is quite common, for example,when somebody's arrested for a warrant and then it leads to something,that the officers testify, we arrested him on something unrelated to this.And that's exactly what happened. The officer who arrested Gamache at the Snoqualmie Casino testified that he did so as the result of a "be on the lookout" bulletin from the Auburn Police Department. The bulletin indicated that Gamache was "a person of interest in a homicide"and "that there was probable cause to arrest him on a separate matter." We conclude the trial court was within its discretion to permit this testimony aboutthe basis of the arrest. Investigation ofthe murder went on for another month before Gamache was charged. Part ofthe defense strategy at trial was to call into question the competence ofthe investigators. The State was legitimately concerned that ifjurors were not informed there was a basis for the arrest other than suspicion that Gamache was involved in the murder,they would
assume the Auburn police were "cowboys"who had arrested Gamache before they had developed probable cause.

14No. 76005-0-1/15 Evidence is admissible under ER 404(b)to show the "res gestae"ofa crime if it provides context for the jury to understand the sequence ofevents surrounding the crime. State v. Lane, 125 Wn.2d 825,831,889 P.2d 929(1995). Under this exception to ER 404(b),a party may complete the picture ofthe story ofthe crime rather than having the jury receive a fragmented account. State v. Tharp, 27Wn.App. 198,204-05,616 P.2d 693(1980), aff'd, 96 Wn.2d 591,637 P.2d 961 (1981). The admission oftestimony that Gamache was arrested on "another matter"was not an abuse ofdiscretion. Expert Testimony Gamache argues thatthe State committed misconduct by leading an expert witness down a line ofquestioning aimed at improperly bolstering the expert's credibility. The alleged misconduct occurred during the testimony of an associate medical examiner, Michelle Lubin. Lubin's initial estimate placed McCune's death in early afternoon. But Lubin testified that she could not rule out that McCune died during the 9:00 a.m.to 10:35 a.m.window when Gamache was unaccounted for. The prosecutorfollowed up by asking Lubin if her opinion was in line with medical literature and the policies and practices of her office: Q.Okay.And,then,everything that you've discussed regarding that window,last seen alive, when he's found dead,and sort ofall the caveats ofthe post mortem indicators, is that in line with the reputable, medical literature that you're familiar with? A.Yes. Q. Is that in line with the practice ofyour colleagues at the King County Medical Examiner's Office? A.Yes,it is. Q.Meaning the otherAssociate Medical Examiners? A.Yes. 15No. 76005-0-1/16 Q.And is that view and opinion in line with the practice and policies ofthe Chief Medical Examiner, Dr. Harruff? A.Yes,it is. Gamache contends Lubin gave improper opinion testimony. Because he did not object at the time,there is not a ruling by the trial court to which error can be assigned. Instead Gamache claims the prosecutor committed misconduct by eliciting the allegedly improper testimony. The burden rests on the defendant to show conduct by a prosecutor was both improper and prejudicial. Fisher, 165 Wn.2d at 747. Once proved, prosecutorial misconduct is groundsfor reversal when there is a substantial likelihood the improper conduct affected the jury. Defense counsel's failure to object to the misconduct at trial constitutes waiver on appeal unless the misconduct is so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice incurable by a jury instruction. Fisher, 165Wn.2d at 747. The State may not use the hearsay statement of a third party to vouch for its witness. State v. Nation, 110Wn.App.651,662,41 P.3d 1204 (2002),review denied, 148 Wn.2d 1001,60 P.3d 1212(2003). Citing this rule, Gamache contends the prosecutor improperly elicited Lubin's testimony thatthe Chief Medical Examiner, Dr. Harruff,agreed with her opinion about McCune's time of death. The gist ofthe elicited testimony was that Lubin's analysis was "in line" with the practices and policies of her office. Although the final question included

an unfortunate reference to Dr. Harruff's "opinion", it did not indicate that he had reviewed and approved Lubin's analysis in this case.And because an instruction

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to the jury to disregard the remark could have cured any potential prejudice, Gamache waived the objection by failing to object. DNA Evidence Chain ofCustody Gamache attacks the DNA evidence linking Gamache to McCune and his pill bottle in part by arguing the pill bottle evidence should not have been admitted because the chain of custody was unsecured. McCune stored his pill bottles in a filing cabinet. In the immediate aftermath offinding McCune's body,his wife believed some of his pills were missing, but she attributed their absence to her mistaken beliefthat McCune had taken them as part ofa plan to commit suicide. After the police left the home, McCune's wife moved the pills to her sister's ,adjoining duplex so they would be out ofthe way for the people cleaning the crime scene. An autopsy revealed that McCune was murdered and that he did not have any ofthe missing pills in his stomach. By this point, officers had learned of Gamache's history with McCune and that Gamache was missing since the day of the murder. Three days after the murder,officers wentto McCune's home to gather his pain medications. McCune's wife gave them a bag containing the pill bottles she had collected. The officer labeled the bag and the pill bottles and processed them for evidence. When the bottles were tested, one contained DNA evidence implicating Gamache. Gamache moved to suppress this evidence. He argued that the bottles had not been protected and any evidence they contained was unreliable. The

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trial court denied the motion,ruling that the argumentwentto the weight ofthe evidence and not its admissibility. I am satisfied that the pill bottles as medication is packaged these days are readily identifiable pieces of evidence. It contains the name ofthe person for whom it's prescribed and they have other information concerning the medication itself, etcetera. I am satisfied that this is sufficiently documented by the photos and the fact that these are items that clearly contain information as to whatthey are.There are photos in the residence showing bottles present ofthe medication prescribed to Mr. McCune.I am satisfied it goes to the weight ofthe evidence as the trier offact might give weight to this particular evidence.

I am satisfied that there is sufficient chain of custody in terms ofthis readily identifiable item in the photos,that the arguments I think the Defense has they need to place to the jury either in cross or through witnesses. So the motion to suppress is denied. "Before a physical object connected with the commission ofa crime may properly be admitted into evidence,it must be satisfactorily identified and shown to be in substantially the same condition as when the crime was committed." State v. Campbell, 103Wn.2d 1,21,691 P.2d 929 (1984),cert.denied, 471 U.S. 1094,206 S.Ct. 2169,85 L. Ed.2d 526 (1985). "Evidence that is unique and readily identifiable may be identified by a witness who can state thatthe item is what it purports to be." State v. Roche, 114 Wn.App.424,436,59 P.3d 682 (2002),citing 5 KARL B.TEGLAND,WASHINGTON PRACTICE §402.31 (1999). "However,where evidence is not readily identifiable and is susceptible to alteration by tampering or contamination, it is customarily identified by the testimony of each custodian in the chain of custody from the time the evidence

was acquired." Roche, 114Wn.App.at436. "The trial court is necessarily

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vested with a wide latitude ofdiscretion in determining admissibility." Campbell, 103Wn.2d at 21. Gamache contends the evidence at issue was inadmissible because of the high risk that it was contaminated. But as the State argues,the pill bottle "could have been contaminated in hundreds ofways between the 2nd and the 5th, but there is scant chance it was contaminated in the only way relevant to this case,i.e., with Gamache's DNA. Gamache was nowhere near the bottle between August 2and August 5." Gamache's argumentthat the prosecutor committed misconduct by offering the evidence is not persuasive. Characterization ofthe DNA Evidence Gamache contends the prosecutor prejudicially overstated the strength of the State's DNA evidence. The Maryland Supreme Court confronted a similar question in Whack v. State,433 Md.728,732,73A.3d 186 (2013). In Whack, DNA evidence was taken from the scene ofa murder. The chance ofthe DNA coming from an African-American individual other than the defendant was 1 in 172. Whack, 433 Md.at 737. In closing argument,the prosecutor asserted that the DNA established the defendant was at the scene,and claimed the 1 in 172 odds were essentially no different than 1 in 212 trillion odds. Whack, 433 Md.at 745-47. The trial court denied a defense motion for a mistrial. Whack, 433 Md.at 741. The Supreme Court reversed and remanded for a new trial, holding that the prosecutor's remarks "likely misled the jury to the prejudice ofthe accused." Whack, 433 Md.at 755.

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In two similar cases cited by Gamache,prosecutors were found to have overstated the strength of DNA evidence. A one in three likelihood was ruled to be too statistically insignificant to support the prosecutor's assertion that the defendant's DNA wasfound in the victim's clothes in Duncan v. Commonwealth of Kentucky, 322 S.W.3d 81,90(Ky.2010). When DNA evidence showed only that a defendant could not be excluded,it was reversible error for the prosecutor to claim the defendant's DNA wasfound at the scene. People v.Wright, 25 N.Y.3d 769,776,37 N.E.3d 1127 (2015). Here,in opening statement,the prosecutor asserted that the DNA mixture taken from the pill bottle matched Gamache and McCune: And on one ofthose bottles,an empty bottle of HydrocodoneAcetaminophen 10-325,on the lid, is a mixture of DNA.And that mixture of DNA matches a mixture ofWayne McCune and the defendant,Jason Gamache. In closing,the prosecutor listed the DNA taken from the pill bottle as evidence against Gamache: You add all that up,his deception and lies, you add up the blood,the DNA on the shoes,the DNA on the mitt, DNA on the empty bottle, specific targeted robbery,the prior knowledge possessed by him. . . . So when you put that all together,who killed Wayne McCune? The prosecutorfurther stated that the pill bottle contained a "mixture of DNA, Wayne McCune's and the Defendant's." In both the opening statement and closing argument,the prosecutor referred to the blood on the rag found in Gamache's vehicle as coming from McCune. The State'sforensic expert testified that the blood on the rag "matches the DNA profile ofWayne McCune," with a 1 in 260,000 probability ofselecting an unrelated individual at random with 20No.76005-0-1/21

a matching profile. For the DNA on the pill bottle, he said it was 230times more likely than notto be from a mixture of McCune and Gamache than from McCune and an individual selected at random. We agree with Gamache thatthe discussion of DNA evidence must be handled with care. "DNA is a powerful tool and its importance in the courtroom cannot be overstated." Whack, 433 Md.at 732. A prosecutor's statements must be considered within the larger context in which DNA evidence is treated by jurors. Whack, 433 Md.at 747. In this case,the prosecutor's description ofthe DNA evidence was not as overstated as in the cases cited by Gamache,but it did go beyond the expert testimony offered at trial because the prosecutor omitted the statistical probability stated by the expert. To say thatthe DNA evidence "matches"the defendant without addressing the statistical qualification stated by the expert is potentially misleading. But Gamache did not objectto the alleged overstatement ofthe evidence. Because the prosecutor's alleged misstatements were neither flagrant nor incurable,the issue is waived. Fisher, 165 Wn.2d at 747. Ineffective Assistance of Counsel Gamache alleges that his trial counsel provided ineffective assistance by failing to object. A claim of ineffective assistance counsel requires a showing of deficient performance and prejudice. State v. McFarland, 127Wn.2d 322,334- 35,899 P.2d 1251 (1995). "Courts engage in a strong presumption counsel's representation was effective." McFarland, 127Wn.2d at 335.

21No. 76005-0-1/22 Gamache claims defense counsel was ineffective by failing to objectto Officer Lind's testimony about what McCune said on grounds that it violated the confrontation clause,by failing to object to the prosecutor's characterization of DNA evidence,and by failing to object thatthe prosecutor improperly bolstered Lubin's opinion testimony by eliciting her agreement that it was in line with the practice and policies ofher office. As discussed above,Gamache has not shown that such objections would have been sustained. He fails to establish deficient performance. Additionally, Gamache contends counsel was deficient byfailing to request a limiting instruction when the court admitted evidence of his previous attempt to take McCune's pills. Failure to request a limiting instruction may be a legitimate tactical decision not to reemphasize damaging evidence. State v. Yarbrough, 151 Wn.App.66,90,210 P.3d 1029 (2009). That is the case here. The record shows that defense counsel considered requesting a limiting instruction before ultimately deciding not to offer one. We conclude counsel made a tactical decision and did not render deficient performance. Polling ofthe Jury The first trial transcript submitted to this court showed that only 11 jurors
were polled as to whether the verdict was unanimous. Gamache argued in his opening brief that the absence ofthe twelfth juror required reversal. The State obtained and submitted a corrected transcript. Unable to determine which transcript was reliable, we asked the trial court to settle the record as permitted by RAP 9.5. The trial court reviewed the audio recording ofthe polling ofthe jury

22No.76005-0-1/23

and determined that the second transcript is correct. We accept that determination. There was no error in the polling ofthe jury. Cumulative Error The combined effect ofan accumulation oferrors not individually reversible may necessitate a new trial. State v. Coe, 101 Wn.2d 772,789,684 P.2d 668(1984). Gamache alleges butfails to establish the existence of multiple

errors.Affirmed.

WE CONCUR:

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