o L'; 

2014 NOV 1 8 , r

IN THE COURT OF APPEALS OF THE STATE OF WASHIN:C; 

STATE OF WASHINGTON, 

DIVISION II

Respondent, 

v. 

ROBERT L. VANDERVORT, 

Appellant. 

No. 45436 -0 -II

UNPUBLISHED OPINION

WoRSwicx, P. J. — Robert Vandervort appeals his conviction for unlawful possession of a

controlled substance. He argues that the prosecutor committed misconduct by presenting the jury

with a false choice, and that he received ineffective assistance of counsel because his attorney

failed to object to the prosecutor' s rebuttal closing statement. He also appeals his sentencing

condition that prohibits him from going into any place whose primary place of business is the sale

ofliquor. We affirm his conviction, but remand to the trial court to strike the sentencing condition. 

FACTS

On July 10, 2013, Officer Matthew Jewett of the Department of Fish and Wildlife spotted

a vehicle about 30 yards off the road on Highway 101 near Purdy Canyon. As he approached the

car, Officer Jewett observed a man and a woman sleeping inside. Officer Jewett woke the

occupants, asked for their identification, and asked whether either of them had a warrant. The

woman did not have identification, but gave her name and date of birth. The man, Robert

Vandervort, removed his identification from a backpack and gave it to Officer Jewett. Vandervort
No. 45436 -0 -II

denied having an outstanding warrant. Officer Jewett investigated both names and discovered

Vandervort' s outstanding warrant. In the meantime, Vandervort fled into the woods. 

After backup officers arrived, Officer Jewett found Vandervort about 50 yards from the

vehicle, lying face down behind a large tree and holding onto the backpack. Officer Jewett arrested

Vandervort and read him his Miranda' rights. Officer Jewett asked Vandervort how much

methamphetamine he had in his backpack. Vandervort answered that there was a small amount

and that he would show Officer Jewett where it was, which he did. Officer Jewett found

methamphetamine inside a container in the backpack. 

The State charged Vandervort with unlawful possession of a controlled substance. At trial, 

Vandervort asserted the affirmative defense of unwitting possession. Officer Jewett testified, " I

asked him about how much meth he had in his backpack and he said it was just a small amount

and that he would show me exactly where it was." . Report ofProceedings (RP) at 58. Vandervort

testified that he told Officer Jewett that the container " may contain meth" because he had smoked

methamphetamine with the person who owned the container. RP at 85. He further testified that

he was unaware of the contents of the black container because it belonged to someone else. On

cross - examination, Vandervort admitted he had lied to Officer Jewett about the outstanding

warrant. 

During defense' s closing argument, counsel raised the issue ofVandervort' s credibility and

admitted that the State had proven its case, and counsel then discussed the unwitting possession

instruction. During the State' s rebuttal, the prosecutor said, 

In regards to the unwitting possession defense, that defense is just simply not

credible.... [ I] n regards to on a more probable than not basis whether he had

knowledge, for you to find that on a more probable than not basis he did not know

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966). 

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No. 45436 -0 -II

the methamphetamine was in his backpack, you would have to be able to explain

how it is that Officer Jewett was either mistaken or being dishonest. Because you

can' t have — there' s one truth and three different stories, and you can' t have your

cake and eat it too, so it' s either Officer Jewett is mistaken or being dishonest or

the defendant is being dishonest. 

It' s one or the other, and which is more probable? Is there any motivation

on the part of a police officer to come in here and lie? And what motivation does

the defendant have? Well, he has a stake in the outcome, and he' s shown that he

can lie under oath. 

RP at 110, 112. Ajury found Vandervort guilty of unlawful possession of a controlled substance. 

At sentencing, the trial court found Vandervort had a chemical dependency that contributed

to the offense. As a condition for community custody, the trial court ordered Vandervort to stay

away from places whose primary business is the sale of liquor. 

ANALYSIS

Vandervort appeals his conviction, arguing that the prosecutor committed misconduct in

his closing arguments, and that Vandervort received ineffective assistance of counsel when his

attorney did not object to the State' s closing argument. He also appeals his community custody

condition requiring him to abstain from entering businesses that sell liquor. The State concedes

that the trial court did not have the authority to impose this sentencing condition. 

PROSECUTORIAL MISCONDUCT

When a defendant asserts a claim of prosecutorial misconduct, the defendant must prove

that the prosecutor' s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 

756, 278 P. 3d 653 ( 2012) ( citing State v. Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011)). 

Allegedly improper conduct should be viewed " within the context of the prosecutor' s entire

argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." 

State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) ( citing State v. Pirtle, 127 Wn.2d 628, 

672, 904 P. 2d 245 ( 1995)). To establish prejudice, the defendant must prove that there was a

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No. 45436 -0 -II

substantial likelihood that the prosecutor' s misconduct affected the jury' s verdict. Thorgerson, 

172 Wn.2d at 442 -443. Prosecutors are presumed to act impartially in the interest of justice. 

Thorgerson, 172 Wn.2d at 443. When the defendant does not object at trial, any error is deemed

waived " unless the prosecutor' s misconduct was so flagrant and ill intentioned that an instruction

could not have cured the resulting prejudice." Emery, 174 Wn.2d at 760 -761 ( citing State v. 

Stenson, 132 Wn.2d 668, 727, 940 P. 2d 1239 ( 1997)). 

A prosecutor commits misconduct if he or she argues that to acquit a defendant, the jury

must find that the State' s witnesses are either lying or mistaken. State v. Fleming, 83 Wn. App

209, 213, 921 P.2d 1076 ( 1996). However, an argument that to believe a defendant, the jury would

need to believe that the State' s witnesses are mistaken, does not constitute misconduct. State v. 

Wright, 76 Wn. App. 811, 824, 888 P. 2d 1214 ( 1995). Additionally, remarks by the prosecutor, 

including those that would otherwise be improper, -are not grounds for reversal where they are

invited by and responded to with remarks by defense counsel, unless they bring in additional

matters beyond the record or are " so prejudicial that an instruction would not cure them." State v. 

La Porte, 58 Wn.2d 816, 822, 365 P. 2d 24 ( 1961). 

This case is similar to Wright. There, the prosecutor argued that in order to believe the

defendant, " the jury would have to believe that the officers got it wrong." Wright, 76 Wn. App. at

823 ( internal quotation marks omitted). This was distinguishable from a prosecutor saying that to

find a defendant not guilty, the jury would have to believe that the officers were lying. Wright, 76

Wn. App. at 823. Because Vandervort asserted an unwitting possession defense, his defense relied

on his credibility. The only evidence tending to prove an unwitting possession defense was

Vandervort' s own testimony. His defense depended on whether the jury found his version of

events credible when he testified he did not know what was in the container containing the

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No. 45436 -0 -II

methamphetamine, and that it belonged to someone else. Defense counsel raised the issue of

Vandervort' s credibility in his closing. The prosecutor, in turn, brought up the issue of conflicting

testimony as it related to the defendant' s credibility. The prosecutor' s reference to the conflicting

testimony between Officer Jewett and Vandervort in rebuttal closing was not misconduct. 

INEFFECTIVE ASSISTANCE OF COUNSEL

To succeed on an ineffective assistance of counsel claim, a defendant must show both that

counsel' s representation was deficient, and that this deficiency prejudiced the defendant. State v. 

McFarland, 127 Wn.2d 322, 334 -335, 899 P. 2d 1251 ( 1995). If a defendant makes an insufficient

showing on one prong, we need not address the other. State v. Garcia, 57 Wn. App. 927, 932, 791

P. 2d 244 ( 1990). Because Vandervort has failed to prove that the prosecutor committed

misconduct, there was no basis for an objection. Therefore, counsel' s performance could not have

been deficient. Vandervort' s ineffective assistance of counsel claim fails. 

SENTENCING CONDITION

Vandervort also argues that the trial court . acted without authority when it ordered him not

to frequent places whose primary business is the sale of liquor. The trial court has the statutory

authority to impose crime - related prohibitions as conditions for community custody. RCW

9. 94A.703( 3)( f). However, there is nothing in the record showing that alcohol contributed to

Vandervort' s possession of a controlled substance offense, or that he suffers from alcohol

dependency. Accordingly, we accept the State' s concession and remand to the trial court to strike

the community custody condition requiring Vandervort to stay away from businesses that sell

liquor. 

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No. 45436 -0 -II

CONCLUSION

We affirm Vandervort' s conviction because the prosecutor' s remarks were not improper. We

accept the State' s concession regarding the community custody condition, and remand to the trial

court to strike the condition ordering Vandervort to stay away from businesses that sell alcohol. 

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. 

We concur: 

Lee, 

Sutton, J. 

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Worswick, P. J. d'''°-