IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

No. 78524-9-1

Respondent,

V.

FABIAN MARCEL BROWN,

Appellant.

DIVISION ONE

UNPUBLISHED OPINION

FILED: September 23, 2019

APPELWICK, C.J. — Brown appeals his conviction for residential burglary.

He contends that he was deprived of a fair trial because: the prosecutor committed

misconduct during closing argument, defense counsel failed to object to the

prosecutor's misconduct, and the court's bailiff improperly communicated with the

jury during deliberations. We affirm Brown's conviction, but remand for the trial

court to strike the DNA collection fee.

FACTS

In the early morning hours of July 11, 2017, Laurel Evans and Michael Smith

were asleep in an upstairs bedroom of their home. Evans woke up when a man

opened the door to the bedroom and entered the room. Evans woke Smith and

then got out of the bed. The intruder turned and ran and Evans ran after him down

the short flight of stairs to the main floor. She did not catch up with him and did

not see him after that. Neither Evans nor Smith got a clear look at the intruder's

face. Evans saw a tall man in silhouette, who had a goatee and was carrying a
No. 78524-9-1/2

plastic grocery bag. Smith saw a tall man wearing an oversized gray hoodie.

Smith followed Evans down to the main floor. The door into their kitchen from

outside was open, the light was on, and the door window was broken. There was

a brick on the floor among the broken glass. Smith called 911.

After the police arrived, Evans discovered that boxes in a guest bedroom

had been tossed and jumbled. She and Smith noted that there were items missing,

including a couple of cell phones, a global positioning system unit, and some other

electronics. One of the officers lifted fingerprints from the deadbolt on the kitchen

door. When analyzed later, the prints were determined to be of no value.

Police officers established a containment perimeter, and deployed a K-9

team to search for the suspect. The K-9 team, led by Officer Christopher Hairston,

began tracking from the side door of Smith and Evans' home. The tracking dog

attempted to proceed south, but was initially blocked by a fence. After Officer

Hairston took the dog around the house to avoid the fence, the dog tracked east

toward an intersection briefly and lost the scent. The team returned to a staircase

near the house and began the track again. This time, the dog followed the scent

south down an alley towards the next block.

An officer at the house with Smith and Evans testified that about 20-25

minutes after being dispatched, he received notice that a homeowner about two

blocks away had reported an unknown male on his porch "right now." Andrew

Deceunynck was returning from work to his home, which is two blocks south of

Smith and Evans' home. As he approached his house, he saw five or six police

cars canvassing the area near his house. He arrived at his home at 3:18 a.m. and

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No. 78524-9-1/3

went upstairs to his bedroom. Within two or three minUtes, he heard one of his

cats yowling on the main floor, so he went downstairs to see what was going on.

His cat went toward the front door where there is a large window overlooking the

front steps, and when Deceunynck approached and looked out the window, he

saw a man walking up the stairs toward his front door. When the man got to within

two or three steps from his front door, Deceunynck began yelling at him to "leave

right now." After Deceunynck yelled at the man about three times, the man started

to back down his stairs. Deceunynck then called 911.

The police officers already in the area were notified of Deceunynck's call

and told that a person matching the description they had from Smith and Evans

had been seen at Deceunynck's house, and had left traveling east. Some of the

officers involved in containment then drove toward Deceunynck's address. The K9 team received the same information while the dog was leading them south in the

direction of Deceunynck's house, and as the team left the alley and approached

the nearest intersection, Officer Hairston saw a man matching the description of

the intruder emerging from behind some trees. At essentially the same time, two

officers responding in a patrol car saw the man and stopped and detained him.

The man did not have a plastic bag in his possession.

The K-9 team approached the suspect, and the dog then continued tracking,

this time following the scent in the direction the suspect had been coming from

before he was stopped and detained. The K-9 team located a white plastic bag in

some bushes near a driveway, not far from where the suspect was stopped. It

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No. 78524-9-1/4

contained the electronic devices that had been stolen from the home of Smith and

Evans.

Officers drove Smith and Evans to the area where they had stopped and

detained the suspect. Evans thought the man was probably the intruder she had

seen. Smith was very sure the man was the intruder he had seen earlier.

While he was detained on the street, Brown told one officer that he had

come from a friend's house, but he could not provide an address or street name

for his friend. The only landmark he could say was near his friend's house was a

Shell station, which was four blocks north of where Brown was detained. He told

another officer he was waiting for a friend to pick him up.

On July 13, 2017, Brown was charged with committing residential burglary

in violation of RCW 9A.52.025. The State alleged as an aggravating factor that

the victim of the burglary was present in the building or residence when the crime

was committed. RCW 9.94A.535(3)(u). Following a three day trial, the jury

convicted Brown as charged. He was sentenced on May 11, 2018 to a standard

range sentence of nine months. Brown appeals.

ANALYSIS

I. Prosecutorial Misconduct

Brown contends that the prosecutor committed misconduct by misstating

the reasonable doubt standard during her rebuttal closing argument. Specifically,

the prosecutor said it is

not the State's burden to eliminate all the other possibilities because

remember this is beyond a reasonable doubt, not beyond all

reasonable doubt. That's the standard. That's the law of the land.

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No. 78524-9-1/5

And there are juries all over the country that that's the standard is

beyond a reasonable doubt in criminal courts around the country.

(Emphasis added.) Defense counsel did not object to the prosecutor's statement.

The State must prove every element of a crime beyond a reasonable doubt.

In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). See

also, 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:

CRIMINAL 4.01, at 93 (4th ed. 2016) (Washington's pattern "reasonable doubt"

instruction). The State does not dispute that the prosecutor's statement conflicts

with the law. The issue is whether the statement constitutes prejudicial misconduct

requiring remand for a new trial.

Because Brown failed to object to the prosecutor's misstatement at trial, our

review is limited to determining whether the prosecutor's misconduct was so

flagrant and ill intentioned that an instruction could not have cured the resulting

prejudice. State v. Sakellis, 164 Wn. App. 170, 184, 269 P.3d 1029 (2011) (quoting

State v. Gregory, 164 Wn. App. 170, 183, 269 P.3d 1029 (2006)) (holding that the

State's argument that the jury must articulate a reason for acquitting by filling in a

blank with that reason is improper, but the defendant could not demonstrate an

enduring and resulting prejudice). This standard requires Brown to establish that

(a) the misconduct resulted in prejudice that "had a substantial likelihood of

affecting the jury verdict," and (b) a curative instruction would not have obviated

the prejudicial effect on the jury. Sakellis, 164 Wn. App. at 184 (quoting State v. 

Thorperson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011)); see also State v. Russell,

125 Wn.2d 24, 86, 882 P.2d 747 (1994) (explaining that to show "an enduring and

•

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No. 78524-9-1/6

resulting prejudice," the defendant must establish a "substantial likelihood that the

alleged prosecutorial misconduct affected the verdict").

Brown contends that the prosecutor's misstatement of the reasonable doubt

standard was so flagrant and ill intentioned that no curative instruction could have

overcome the prejudice. He argues that the prosecutor's statement improperly

shifted the burden of proof to the defense. Brown relies heavily on cases holding

that it is improper for a prosecutor to argue to the jury that to find a defendant not

guilty, jurors must be able to say, "I don't believe the defendant is guilty because,"

and then fill in the blank with the reason. E.q., State v. Anderson, 153 Wn. App

417, 424, 220 P.3d 1273 (2009); State v. Emery,174 Wn.2d 741, 750-51, 278 P.3d

653 (2012); State v. Johnson, 158 Wn. App. 677, 682, 243 P.2d 936 (2010).

The argument that the jury must be able to articulate its reasonable doubt

by "filling in the blank" has consistently been held to be improper. See, e.q.,

Sakellis, 164 Wn. App. at 185 (citing Johnson, Anderson, and State v. Venecias,

155 Wn. App. 507, 228 P.3d at 813 (2010)). As the court in Anderson,explained,

By implying that the jury had to find a reason in order to find Anderson

not guilty, the prosecutor made it seem as though the jury had to find

Anderson guilty unless it could come up with a reason not to.

Because we begin with a presumption of innocence, this implication

that the jury had an initial affirmative duty to convict was improper.

Furthermore, this argument implied that Anderson was responsible

for supplying such a reason to the jury in order to avoid conviction.

Anderson,153 Wn. App. at 431 (emphasis in original).

Brown's reliance on these cases is misplaced. The State did not make a

fill-in-the-blank argument here. And, Anderson, Johnson, and Emery all involved

additional statements by the prosecutor, beyond the fill-in-the-blank argument, that

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No. 78524-9-1/7

tended to undermine the reasonable doubt standard or to shift the burden of proof.

E.q., Anderson, 153 Wn. App. at 431-32 (prosecutor's argument also compared

the reasonable doubt standard to the process by which jurors make such everyday

decisions as choosing to leave children with a babysitter or to change lanes on the

highway); Johnson, 158 Wn. App. at 682 (prosecutor also analogized reasonable

doubt to assembling just half of a puzzle and determining with assurance what the

image depicted); Emery,174 Wn. App. at 750-51 (prosecutor also argued that the

jury should "speak the truth" with its verdict, suggesting that the jury's role was to

determine the truth of what happened in the case, as opposed to determining

whether the State had proved the offenses beyond a reasonable doubt). The

question is not whether an improper statement was made, it is whether Brown was

prejudiced.

The Supreme Court's decision in Emery clarifies the appropriate focus in

cases where the defendant failed to object to a prosecutor's improper argument.

174 Wn.2d at 760-61. "Reviewing 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." Id. at 762.

Brown cannot establish that the prosecutor's misstatement of the

reasonable doubt standard was so flagrant and ill intentioned that it could not have

been cured by an appropriate instruction from the court. Here, unlike the cases

cited by Brown, the prosecutor did not make multiple arguments that misstated or

trivialized the reasonable doubt standard. The record shows the opposite, that the

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No. 78524-9-1/8

prosecutor properly framed the reasonable doubt standard in her argument several

times. In her main closing argument, the prosecutor stated,

Now we talked about reasonable doubt and that reasonable

doubt is in your jury instructions. And the law recognizes that you

aren't -- you weren't there at the scene to observe everything. If you

were, you wouldn't be sitting in the jury box. You'd be sitting in the

witness box. So the law doesn't require beyond all doubt. It's

beyond a reasonable doubt.

After the defense closing, the prosecutor argued in rebuttal that "[w]hen we

talk about reasonable doubt, your jury instructions are as clear as possible I think

on reasonable doubt." The prosecutor then referred to reasonable doubt in the

context of a lack of evidence:

Your jury instructions talk about. . . [i]t is number 3, "A

reasonable doubt is one for which a reason exists and may arise

from the evidence or lack of evidence."

So lack of evidence is a real thing in criminal trials. It can be

a real thing and a real reason to acquit someone. But I want you to

look at the paragraph before. "A defendant is presumed innocent.

This presumption continues throughout the entire trial unless during

your deliberations you find it has been overcome by the evidence

beyond a reasonable doubt."

After the prosecutor misstated the reasonable doubt standard, she made two

further references to reasonable doubt, but did not misstate the standard.

The prosecutor's one misstatement of the reasonable doubt standard

simply does not compare to the multiple improper forms of argument analyzed in

Anderson and Johnson. The jury was instructed correctly on reasonable doubt by

the trial judge prior to jury selection and after all evidence was presented. The jury

received the court's instructions in writing. We review the prosecutor's improper

- comment in the context of the total argument, the issues in the case, the evidence,

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No. 78524-9-1/9

and the jury instructions. Feely, 192 Wn. App. at 763-64. Brown has not

established that any prejudice from the improper statement could not have been

readily cured by a cautionary instruction had Brown objected. Cf. id. at 763-65

(holding defendant, who did not object to prosecutor's argument that the jury

should convict if it "knew" the defendant was guilty, could not show prejudice, in

part because the prosecutor also stated the reasonable doubt standard correctly,

the court had instructed the jury, and juries are presumed to follow the court's

instructions.)

II. Ineffective Assistance of Counsel 

Brown contends that if his prosecutorial misconduct claim fails for lack of an

objection, then he was denied effective assistance of counsel. A defendant

claiming ineffective assistance of counsel must show that counsel's performance

was objectively deficient and resulted in prejudice. State v. McFarland,127 Wn.2d

322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption that counsel's

performance was effective. Id. at 335. Lawyers do not commonly object during

closing argument absent egregious misstatements. In re Pers. Restraint of Davis,

152 Wn.2d 647, 717, 101 P.3d 1 (2004). To show prejudice, the defendant must

prove that there is a reasonable probability that, but for counsel's deficient

performance, the outcome of the proceedings would have been different. State v. 

Leavitt, 111 Wn.2d 66, 72, 758 P.2d 982 (1988). If either element of the test is not

satisfied, the inquiry ends. Strickland v. Washington,466 U.S. 668, 700, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984).

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No. 78524-9-1/10

We reject Brown's claims that counsel's performance resulted in prejudice.

Brown cannot show that, but for counsel's failure to object to the prosecutor's

misstatement, the outcome of the trial would have been different. As noted above,

the jury was instructed in the proper reasonable doubt standard many times by the

trial court and the attorneys. The jury was also told that the law was in the court's

instructions, and that they must disregard any remarks, statement, or argument

that was not supported by the evidence or the judge's instructions. We presume

the jury follows the trial court's instructions. State v. Hopson,113 Wn.2d 273, 287,

778 P.2d 1014 (1989). Although the prosecutor's statement was improper, in the

context of the entire proceedings and the court's instructions, there is no

reasonable basis to conclude the result would have been different had defense

counsel objected.

III. Improper Communication with the Jury

Brown contends he was denied a fair trial because the court bailiff

improperly communicated with the jury.

On the last day of the trial, following closing arguments, the jury retired to

begin deliberations. The court reconvened the following day at 1:43 p.m., and

informed the parties that it had received two questions from the jury. The court

explained to the parties what had transpired earlier in the day:

So the first thing that happened is the jury got my bailiff's

attention and verbally asked her if they could use a Google Maps

app[lication] on one of their electronic devices, and she said

absolutely not. And then she came back and told me that she had

had that exchange and I clarified that although I completely agreed

with her answer, it needed to be in writing so that the answer could

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No. 78524-9-1/11

come from me. So at that point, she directed them to put their

question in writing.

The jury put the question in writing at 10:56 a.m.: "Can we use our electronics to

pull up the Google Map used for our deliberations?"

The court then discussed the jury's question with the parties, noting first that

"I mean, the answer is `no." The court asked the parties whether they preferred

to give the jury the one word answer "no," or to give them a longer answer

communicating the same message. Defense counsel replied that the defense

"would be satisfied with a simple 'no," although he preferred, generally, to simply

refer the jury back to the instructions. The court noted that the jurors had been

instructed on the first day of trial that they were allowed to use their electronic

devices only when the court was in recess, not in the courtroom and not while

deliberating. This instruction was not, however, included in the court's final written

instructions to the jury. The prosecutor also agreed with answering the question

"no." The court wrote the answer and signed and dated it at 1:46 p.m.

In general, a trial court should not communicate with the jury in the absence

of the defendant. State v. Caliguri,99 Wn.2d 501, 508, 664 P.2d 466 (1983). The

bailiff is in a sense the "alter-ego" of the judge, and is therefore bound by the

same constraints. State v. Bourgeois, 133 Wn.2d 389, 407, 945 P.2d 1120 (1997)

(quoting O'Brien v. City of Seattle, 52 Wn.2d 543, 547-48, 327 P.2d 433 (1958)).

RCW 4.44.300 specifically provides that the court bailiff

shall not allow any communication to be made to [the jury] , nor make

any himself or herself, unless by order of the court, except to ask

them if they have agreed upon their verdict, and the officer shall not,

before the verdict is rendered, communicate to any person the state

of their deliberations or the verdict agreed on.

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No. 78524-9-1/12

We have held that a bailiff is forbidden to communicate with the jury during

deliberations except to inquire if it has reached a verdict, or to make innocuous or

neutral statements. State v. Booth, 36 Wn. App. 66, 68, 671 P.2d 1218 (1983).

When an ex parte communication takes place, the trial judge should disclose the

communication to all parties. Bourgeois, 133 Wn.2d at 407. The purpose of the

statute is to insulate the jury from out-of-court communications that may prejudice

its verdict. State v. Christensen, 17 Wn. App. 922, 924, 567 P.2d 654 (1977).

Even though an improper communication between the bailiff and the jury is

an error of constitutional dimensions, the communication may be so

inconsequential as to constitute harmless error. Bourgeois, 133 Wn.2d at 407.

Once a defendant raises the possibility an improper communication between the

court and the jury has caused prejudice, the State bears the burden of showing

that the error was harmless beyond a reasonable doubt. Id.

CrR 6.15(0(1) provides that the jury shall be instructed that any question it

wishes to ask the court about the instructions or evidence should be signed, dated

and submitted in writing to the bailiff. The court must then notify the parties of the

contents of the question and provide them an opportunity to comment on an

appropriate response. Id.

Brown argues that the court failed to (a) immediately notify the parties of the

jury's question, (b) provide the parties an opportunity to respond or object before

any answer was given to the jury, and (c) answer the jury's question only in writing

or in open court on the record, as required by CrR 6.15(0(1). We disagree with

Brown that the court's procedure here deprived him of a fair trial.

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No. 78524-9-1/13

The bailiff's response to the jury's question was a simple negative, entirely

consistent with the court's oral instructions to the jury, and the bailiff reported the

communication to the judge directly after it occurred. The jury put the question in

writing at 10:56 a.m. and reconvened at 1:43 p.m. The court's notification to

counsel possibly could have been more prompt, but it was not untimely. Cf.

Bourgeois, 133 Wn.2d at 398, 408 (where court failed to notify parties that, during

trial, there was contact between a juror and the bailiff until a hearing on the

defendant's motion for a new trial, notification was untimely). The court here

appropriately engaged with counsel to decide how to respond to the jury in writing.

Defense counsel participated in this process, agreed with the court's proposed

written instruction, and did not object to the bailiff's communication. Under these

circumstances, the defendant was not prejudiced, and the error was harmless. Cf.

State v. Russel, 25 Wn. App. 933, 948, 611 P.2d 1320 (1980) (citing State v. 

Safford, 24 Wn. App. 783, 794, 604 P.2d 980 (1979) (holding there was no

prejudice to the defendant where judge responded to jury's written request for a

legal definition of assault with a note saying "read the instructions," without

consulting with the parties)).

Brown further argues that the error was prejudicial because there is no way

of knowing exactly what was said by the jurors, or exactly how the bailiff

responded. In essence, Brown asks the court to presume that the bailiff engaged

in a discussion with the jurors that influenced their deliberations or was otherwise

prejudicial. We decline to make such a presumption. See State v. Smith, 43

Wn.2d 307, 310, 261 P.2d 109 (1953) (holding that the court cannot presume a

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sworn officer of the court has engaged in improper communication with the jury);

State v. Yonker, 133 Wn. App. 627, 635, 137 P.2d 888 (2006) (declining to

presume a judicial assistant acted improperly where the jury returned a verdict

against the defendant shortly after the assistant took the jury to lunch.)

IV. DNA (deoxyribonucleic acid) Collection Fee 

Brown appeals the DNA collection fee imposed as part of his sentence.

Pursuant to RCW 43.43.7541, Brown is subject to a fee of $100, "unless the state

has previously collected the offender's DNA as a result of a prior conviction."'

Brown contends, and the State concedes, that the fee should be stricken in this

case because the State has previously collected Brown's DNA. We agree.

We affirm Brown's conviction and remand for the trial court to strike the DNA

, collection fee from the judgment and sentence.

WE CONCUR:

9

1 This provision of RCW 43.43.7541 was not effective until June 7, 2018, a

month following Brown's conviction. LAWS OF 2018, ch. 269, § 18. However, as

both parties note, the amendment applies to defendants whose appeals were

pending when the bill was enacted. State v. Ramirez, 191 Wn.2d 732, 746-50,

426 P.3d 714 (2018).

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