### oL'; 

### 2014 NOV 1 8 , 

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## 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UNPUBLISHED OPINION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 ofa 

### controlled substance. He argues thatthe prosecutor committed misconduct by presenting thejury 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 thatprohibits him from going into any place whose primary place ofbusiness is the sale ofliquor. We affirm his conviction,but remandto the trial courtto strike the sentencing condition. FACTS 

### On July 10, 2013, Officer MatthewJewett ofthe Department of Fish and Wildlife spotted 

### avehicle about 30 yards offthe 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. VandervortNo. 45436 - 0 -II

denied 

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

### Vandervort's outstanding warrant. Inthe meantime, Vandervortfled into the woods. After backup officers arrived, Officer Jewett found Vandervort about 50 yards from the vehicle, lyingfacedown behind alargetree and holding ontothebackpack. OfficerJewettarrested 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 ofacontrolled 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 of Proceedings (RP) at 58. Vandervort 

### testified that hetold OfficerJewettthatthe 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' sclosing argument,counsel raisedtheissueofVandervort'scredibilityand 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 thaton 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). 2No. 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 guiltyofunlawful possession ofa controlled substance. Atsentencing,thetrial courtfoundVandervort had achemical dependencythatcontributed to the offense. 

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

### awayfrom places whose primary business is the sale ofliquor. 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 

### thatthe 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 conductwas 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 inthe case,the evidence discussed inthe argument,andthejury 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 3No. 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 ofjustice. Thorgerson, 172 Wn.2d at 443. 

### When the defendant does not object attrial, 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 ifhe or she argues that to acquit a defendant, thejury 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 argumentthatto believe adefendant,thejurywould 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 bythe 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 thatto 

### find adefendant not guilty,thejury would haveto believethatthe officers were lying. Wright,76 

### Wn.App.at 823. BecauseVandervort 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 4No. 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, inturn, brought up the issue ofconflicting 

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

### testimony between OfficerJewett 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 thatthis deficiency prejudiced the defendant. State v. McFarland, 127 Wn.2d 322, 334 - 335, 899 P.2d 1251 ( 1995). Ifa defendant makes an insufficient 

### showing on one prong,we need notaddress 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 ofcounsel claim fails. SENTENCING CONDITION 

### Vandervort also argues thatthe 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 remandto the trial courtto strike 

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

5No. 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 

### courtto strike the condition ordering Vandervortto stayawayfrom businessesthat sell alcohol. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, butwill be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:
Lee,
Sutton, J.

6 Worswick, P.J.

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