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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

BARAKA ASABA,

Appellant.

 No. 80236-4-I

 DIVISION ONE

 UNPUBLISHED OPINION

SMITH, J. — Baraka Asaba and his codefendant were charged with first 

degree robbery. At trial, Asaba contended that the complaining witness did not 

accurately identify him as the robber. During her testimony at trial, the 

investigating detective misidentified Asaba based on photographs attached to an 

inadmissible e-mail exhibit. The prosecutor referenced and mischaracterized the 

e-mail exhibit and discussed reasonable doubt in a context not material to the 

issues at trial. The jury acquitted Asaba’s codefendant but found Asaba guilty of 

second degree robbery. On appeal, Asaba contends that the prosecutor’s 

statements constituted misconduct and deprived him of his right to a fair trial. 

While we agree that the prosecutor’s comments were improper, Asaba failed to 

show prejudice. Accordingly, we conclude that the trial court did not err when it 

denied his motion for a mistrial, and we affirm his conviction. 

FACTS

On May 15, 2017, at around 10:00 p.m., Nabil Madih met with a high 
No. 80236-4-I/2

2

school acquaintance, Seid, at Seid’s house.1 The two left Seid’s house to meet 

with another former high school classmate, Abdou Darboe. Seid asked Madih if 

he could drive Madih’s car, and Madih agreed, although he found the request 

odd. The two arrived across the street from Darboe’s apartment in Lynnwood, 

Washington, and Darboe got into Madih’s vehicle with Seid and Madih. They 

listened to music, talked, and smoked marijuana. Seid and Darboe suggested 

that the three of them meet with another classmate whom Madih did not 

recognize at first. In showing Madih a Facebook profile of “Bongo Lion” to jar his

memory, Madih recognized the profile as Asaba’s, although he did not know his 

name. Asaba had been Madih’s peer in English class during high school. Thus, 

Madih, who had graduated high school in 2014, had seen Asaba in class around 

four times per month for an hour and a half each time and for around three 

months. 

When Madih expressed a desire to leave, Darboe and Seid insisted that 

they stay. Eventually, two men arrived in an orange Infiniti SUV. Madih testified 

that Asaba was in the driver’s seat of the SUV. Madih spoke with Asaba through 

the vehicles’ windows. Madih later testified that the man spoke as if he had been 

Madih’s classmate and that he was one “hundred percent sure” that the SUV’s 

driver was the person that he had English class with, i.e., Asaba. 

Seid and Darboe exited Madih’s vehicle and entered the back of the SUV. 

Madih remained in the passenger seat of his vehicle. Around 15 minutes later, 

 

1 Seid’s first name is used throughout this opinion, consistent with the 

parties’ briefs and references to him during trial.
No. 80236-4-I/3

3

Seid and Darboe got out of the SUV, and Seid returned to Madih’s vehicle. 

Darboe returned to his apartment. Asaba thereafter exited the SUV and stood 

outside of Madih’s passenger side window, next to Madih. The SUV’s passenger 

(passenger) exited the vehicle and got into the back of Madih’s car. 

“[T]hey” asked for Madih’s phone. Madih asked them, “[W]hy?” In 

response, the passenger and Asaba became aggressive and threatened to shoot 

Madih or steal his car. Madih believed the passenger had a gun because the 

passenger held his hand inside his jacket at his beltline. But Madih never saw a 

weapon. Asaba took Madih’s wallet, discarding some cards back into the vehicle 

that he believed were expired. Asaba looked at Madih’s identification and told 

Madih, “I know where you live, like don’t think about going to the cops.” The 

passenger and Asaba took Madih’s vaporizer, phone, car keys, and wallet. 

At this point, Madih told the passenger and Asaba to let him and Seid 

leave. Madih put the car into drive and told Seid to step on the gas. Seid drove 

around 20 feet but stopped. The passenger exited, and Madih and Seid drove 

away. Madih asked Seid to call 911, but Seid said that “he didn’t want anything 

to do with it.” Madih made Seid pull over at a gas station so that he could drive, 

and then Madih dropped off Seid at his home. Madih drove to the Mill Creek 

police station. An officer there told Madih that he needed to go to the Lynnwood 

police station, as the incident occurred in its jurisdiction. Madih drove to his 

sister’s home and used her phone to call the Lynnwood police. 

The Lynnwood police responded, and Madih recounted the events. At 

trial, Madih could not remember whether or not he told the responding officer that 
No. 80236-4-I/4

4

he had smoked marijuana prior to the incident. After discussing the incident with 

the officer, Madih drove to the police station, where he gave Detective Jaqueline 

Arnett his initial statement. Madih identified Asaba as the individual who stood 

outside his window. However, he asked Darboe and Seid for photographs of the 

passenger. After receiving two photographs, Madih later testified that he 

believed that he had sent the photographs to Detective Arnett via e-mail.

At trial, Detective Arnett testified from memory that Madih had sent two 

images, one of Asaba and one of Ousman Faye. In response, the State 

introduced the e-mail exchange between Detective Arnett and Madih and the 

attached pictures to refresh Detective Arnett’s recollection; the e-mails and 

pictures were not admitted as evidence. After reviewing the e-mails, Detective 

Arnett said that the e-mails included two photographs “of the same person,”

which she contended “look[ed] like Baraka Asaba.” However, she reviewed the 

e-mails again and stated that “[t]he only subject [Madih] refers to in the emails is 

Mr. Darboe,” concluding that the photographs must be of Darboe. 

During Detective Arnett’s investigation, Madih provided her with the 

Facebook profile for “Bongo Lion.” Detective Arnett thereafter created a photo 

montage wherein she included a photograph of Asaba, whom she knew to be 

Bongo Lion. The second montage she created included a photograph of another 

individual who owned an orange Infiniti SUV. The final montage included a 

photograph of Faye. When shown the montages, Madih selected Asaba and 

Faye as the two individuals who had robbed him. Madih testified at trial that he 

was 100 percent sure that Asaba was the individual that stood at his window 
No. 80236-4-I/5

5

because they had English class together. 

Referencing exhibit 9, which was not admitted as evidence, defense 

counsel made the following statement during closing arguments: 

And so is it possible that Mr. Madih could have been looking 

[at] the picture shortly before he saw my client and shortly after and 

still confuse that it was actually my client who was there? I think 

you saw, during the trial, with your own eyes that it was. You saw 

Detective Arnett on the stand. You saw her looking at an email that 

was provided to her by Nabil. You saw her looking at two pictures 

and confidently saying that that person was Baraka Asaba. 

And you saw Mr. Hunter asking her, are you sure? Are you 

sure that’s who that is? And you saw her looking. Does the 

content of the email in front of it give you any other indication of 

who that is? She’s right there, pictures in front of her. And my 

client, Mr. Asaba, is standing -- sitting right here in front of her.

Oh. Looking at the email, it appears that these are actually 

pictures of Abdou Darboe. So you can see how that works. How it 

works, that somebody can misidentify somebody even in those 

circumstances.

During rebuttal argument, the State argued: 

[PROSECUTOR:] With respect to Detective Arnett

misidentifying the picture on the attached to the email exhibit that I 

was showing her, I suggest it’s not so clear whether she 

misidentified the person or used the wrong name, but assume, 

since I’ve got the burden, that she misidentified the person -- you

don’t get to see in the picture that was attached to that email. You 

don’t know how large or small it was, whether it was a photocopy of

a fax of a photocopy, and so I’m just saying don’t make

assumptions on that point.

. . . . 

[PROSECUTOR:] Lastly, I think I just want to give you one

contrasting example with respect to reasonable doubt. There have 

been suggestions that Seid and Abdou set Nabil up, which also 

there are suggestions that somehow set the defendant up too. 

That’s a good example of reasonable doubt. And you heard the 

evidence. Yeah, one of those guys, if not both, probably were in on 

this. But if I were standing here, asking you to convict them [with]
No. 80236-4-I/6

6

proof beyond a reasonable doubt --

[DEFENSE:] Objection, your Honor. This is an improper 

question, there is no testimony, they are not on trial, there was no 

investigation about this.

[THE COURT:] Overruled.

[PROSECUTOR:] I’m just saying, it’s a good contrast 

between -- or it’s a good example of reasonable doubt. Certainly 

nobody is going to convict those two with the information they have --

[DEFENSE:] I’m going to renew my objection, your Honor, 

I’m sorry.

[THE COURT:] Overruled.

[PROSECUTOR:] Even though just about everybody 

probably suspects they were setting him up. 

So that’s all I have to say. Again, thank you for your time 

and attention. I appreciate the work you will put into this, and I’m 

asking to you return guilty verdicts on both for first degree. Thank 

you.

The next day, Asaba moved for a mistrial as the jury continued to 

deliberate. Asaba argued that the inadmissible photographs attached to the email were large and clear and, thus, the prosecutor’s argument was untrue and 

improper. The trial court denied Asaba’s motion. 

During deliberations, the jury sent an inquiry to the court requesting to 

view the e-mails Madih had sent to Detective Arnett, “including photos.” The 

court could not and did not provide the e-mails to the jury. The jury found Asaba 

guilty of the lesser included crime of second degree robbery. Asaba appeals. 

ANALYSIS

Asaba contends that reversal is required due to prosecutorial misconduct. 

Although we agree with Asaba that the prosecutor’s comments during trial were 
No. 80236-4-I/7

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improper, we conclude that those comments do not warrant reversal.

Prosecutorial misconduct may deprive a defendant of their guaranty to a 

fair trial under the Sixth and Fourteenth Amendments to the United States 

Constitution and article I, section 22 of the Washington State Constitution. In re 

Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012)

(plurality opinion). To prevail on a prosecutorial misconduct claim, a defendant 

must first show that the prosecutor’s statements were improper. State v. Emery, 

174 Wn.2d 741, 759, 278 P.3d 653 (2012). “Once a defendant establishes that a 

prosecutor’s statements are improper, we determine whether the defendant was 

prejudiced under one of two standards of review.” Emery, 174 Wn.2d at 760. 

First, “[i]f the defendant objected at trial, the defendant must show that the 

prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of 

affecting the jury’s verdict.” Emery, 174 Wn.2d at 760. A motion for a mistrial 

based on prosecutorial misconduct constitutes an objection and preserves the 

issue for appeal. State v. Lindsay, 180 Wn.2d 423, 430-31, 326 P.3d 125 (2014). 

We review claims of prosecutorial misconduct for an abuse of discretion because 

“[t]he trial judge is generally in the best position to determine whether the 

prosecutor’s actions were improper and whether, under the circumstances, they 

were prejudicial.” State v. Ish, 170 Wn.2d 189, 195-96, 241 P.3d 389 (2010).

Asaba contends that the prosecutor made two improper comments. We 

address each below. 
No. 80236-4-I/8

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Reference to E-mail Exhibit

Asaba first contends that the prosecutor committed misconduct when he 

referenced exhibit 9, the inadmissible exhibit containing photographs of Darboe. 

He asserts that the statement was improper because it was false and misleading, 

it interjected matters into the proceeding that were not probative of Asaba’s guilt,

and it vouched for Madih. We agree that the statement was improper but 

conclude that Asaba failed to show actual prejudice. 

State v. Thorgerson, 172 Wn.2d 438, 258 P.3d 43 (2011), is instructive. 

There, Thorgerson challenged the prosecutor’s statements during closing 

argument regarding what the victim had said to others and regarding how the 

hearsay rules prevented the State’s production of those statements. Thorgerson,

172 Wn.2d at 445. Our Supreme Court determined that “the prosecutor’s 

references to the victim having made additional out-of-court statements 

consistent with her in-court testimony, while advising the jury those statements 

were not admissible as evidence, possibly bolstered her credibility to some 

degree.” Thorgerson, 172 Wn.2d at 447. It noted that it did not condone the 

prosecutor’s comments. Thorgerson, 172 Wn.2d at 445. However, it concluded 

that in the context of the trial and because “the defense theory was the focus of 

the prosecutor’s references,” Thorgerson failed to show prejudice. Thorgerson,

172 Wn.2d at 450, 455. 

Here, the prosecutor’s statement regarding the e-mail exhibit was 

improper. The prosecutor stated, “[A]ssume, since I’ve got the burden, that she 

misidentified the person -- you don’t get to see in the picture that was attached to 
No. 80236-4-I/9

9

that email. You don’t know how large or small it was, whether it was a photocopy

of a fax of a photocopy.” Like in Thorgerson, the prosecutor was referencing 

evidence that was inadmissible. And because the prosecutor knowingly 

mischaracterized the photographs as potentially unclear, we conclude that the 

statement was improper. 

However, with regard to the prejudicial effect of the prosecutor’s comment, 

the references to, and any mischaracterization of, the inadmissible evidence “did 

not provide any additional ground for finding the defendant guilty.” Thorgerson, 

172 Wn.2d at 450. Specifically, Detective Arnett’s identification of Asaba did not 

decide Asaba’s guilt; Madih’s identification—which he provided in certain terms 

based off of his prior personal knowledge of Asaba from high school and not the 

pictures contained in the e-mail exhibits—did. Therefore, whether or not 

Detective Arnett misidentified Asaba did not provide additional grounds for 

finding Asaba guilty and did not provide direct support for Asaba’s theory that 

Madih misidentified him. Also like in Thorgerson, the statement was in response 

to Asaba’s reliance on Detective Arnett’s misidentification. Accordingly, Asaba 

fails to show prejudice. 

Discussion of Seid, Darboe, and Reasonable Doubt

Asaba next contends that the prosecutor committed misconduct when it 

compared the reasonable doubt associated with the theory that Seid and Darboe 

set up Madih to the reasonable doubt that Asaba robbed Madih. We agree that 

the statement was improper but conclude that Asaba failed to make a showing of 

prejudice. 
No. 80236-4-I/10

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In Emery, Anthony Marquise Emery Jr. and his codefendant, Aaron 

Edward Olson, appealed their convictions for, among other charges, first degree 

kidnapping and first degree robbery. 174 Wn.2d at 746. They contended that 

the prosecutor committed misconduct when it presented the jury with a “‘fill in the 

blank’” statement with regard to reasonable doubt. Emery, 174 Wn.2d at 759. 

Specifically, the prosecutor told the jury that “‘to find the defendant not guilty,’” it 

must fill in the blank with a reason why doubt exists. Emery, 174 Wn.2d at 759-

60. The court concluded that the statement “subtly shift[ed] the burden [of proof]

to the defense.” Emery, 174 Wn.2d at 760. It nonetheless held that Emery and 

Olson failed to show prejudice. Emery, 174 Wn.2d 760-61. 

Here, like in Emery, the prosecutor misstated the reasonable doubt 

standard; the prosecutor used an inappropriate comparison when, in discussing 

reasonable doubt, he interjected an argument regarding two individuals not on 

trial. Furthermore, the prosecutor potentially lessened the State’s burden of 

proof. Specifically, by contending that there existed less doubt in the case of 

Asaba’s guilt than in the case of Seid’s or Darboe’s, the prosecutor potentially 

conflated having less doubt with having proof beyond a reasonable doubt. Thus, 

the prosecutor’s comparison was improper.

However, we cannot conclude that the trial court abused its discretion 

because there is not a substantial likelihood that the argument affected the jury’s 

determination. In particular, the relevant evidence—i.e., the testimony of 

Madih—established that Asaba committed the crime, and Madih based his 

identification on his prior knowledge of Asaba. In addition, an instruction could 
No. 80236-4-I/11

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have cured this issue, and to that end, the court instructed the jury regarding the 

proper reasonable doubt standard. And we presume that juries “‘follow 

instructions absent evidence to the contrary.’” State v. Lamar, 180 Wn.2d 576, 

586, 327 P.3d 46 (2014) (quoting State v. Dye, 178 Wn.2d 541, 556, 309 P.3d 

1192 (2013)). Accordingly, Asaba failed to show prejudice on his second theory 

of prosecutorial misconduct. 

Asaba relies on State v. Thierry, 190 Wn. App. 680, 360 P.3d 940 (2015), 

for the proposition that “[c]reating straw man arguments does not comport with 

the prosecutor’s duty to seek convictions based on probative evidence and 

sound reason.” In Thierry, the prosecutor argued that if the jury accepted 

defense counsel’s argument and did not believe the complaining witness, the 

State would be unable to prosecute child rape cases, and the jury would be 

“‘declaring open season on children,’” allowing anyone to touch children 

inappropriately. 190 Wn. App. at 690-91 (quoting State v. Powell, 62 Wn. App. 

914, 918 n.4, 816 P.2d 86 (1991)). On appeal, the court held that the 

prosecutor’s statements were improper and “misrepresented [defense counsel’s] 

argument in a way that exacerbated the prejudice flowing from the misconduct,” 

and “created a substantial risk that the jury [would] credit [the victim’s] testimony 

for improper reasons.” Thierry, 190 Wn. App. at 692, 694. The court reversed 

Thierry’s conviction on this basis. Thierry, 190 Wn. App. at 695. Here, the 

prosecutor’s comments did not pose a similar risk of inflaming the jury against 

Asaba. Accordingly, Thierry does not control. 

Because Asaba failed to establish that either instance of the prosecutor’s 
No. 80236-4-I/12

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improper conduct affected the outcome of trial, we do not apply a cumulative 

error analysis. See, e.g., Thorgerson, 172 Wn.2d at 442-44, 454 (reviewing 

multiple claims of prosecutorial misconduct individually and, despite finding some 

improper, declining to apply the cumulative error doctrine). 

We affirm. 

 

WE CONCUR: