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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) 

) No. 79765-4-I

Respondent, )

) DIVISION ONE

v. )

) UNPUBLISHED OPINION

ANDREW LEE BRANCH, JR, ) 

)

Appellant. ) 

)

SMITH, J. — Andrew Branch Jr. appeals his conviction for possession of a 

stolen vehicle. He contends that the trial court erred by admitting an officer’s 

testimony that he saw Branch in the vehicle several days before Branch’s arrest. 

Branch also contends that the prosecutor committed reversible misconduct

during closing, that his counsel was ineffective for not objecting to the 

prosecutor’s comments, and that cumulative error warrants reversal. We hold 

that Branch failed to preserve error with regard to the admission of the officer’s 

testimony. We further hold that although some of the prosecutor’s statements 

during closing were improper, none were prejudicial. Therefore, defense counsel 

was not ineffective for not objecting to them, and cumulative error does not 

warrant reversal. We affirm.

FACTS

The State charged Branch in September 2018 with one count of 
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possession of a stolen vehicle.1 At trial, Officer Sean Culbertson of the Seattle 

Police Department testified that while on patrol around 5:00 a.m. on July 24, 

2018, he stopped a car after he saw it make an illegal maneuver. Branch, who 

was driving, got out of the car and left it running. The car, a silver 1992 Honda 

Accord, had been reported stolen eight days earlier. 

Officer Culbertson testified that when he ran the car’s rear license plate 

number, he discovered it belonged to a 2002 Honda Civic, not a 1992 Honda 

Accord. Officer Culbertson thus placed Branch under arrest for possession of a 

stolen vehicle. Officer Nicholas King, who arrived on scene after Officer 

Culbertson, testified that he removed the rear license plate from the car. Officer 

King also removed a key from the ignition and placed it, together with the license 

plate, into evidence. A detective later testified that the key recovered from the 

ignition appeared to be a “shaved” key, i.e., a key whose ridges had been filed 

down to “make[ ] the key more accessible to a variety of make and models of

cars.” And a latent print examiner testified that a fingerprint found on the back of 

the license plate matched prints later taken from Branch.

Officer Nathan Lemberg also testified at Branch’s trial. Officer Lemberg 

testified that on July 18, 2018, i.e., six days before Branch was arrested, he was 

patrolling the Aurora corridor on his bicycle when a silver Honda Accord caught 

his attention. He testified that “[a] black male, 30s with long dread locks past his 

shoulder” was sitting in the vehicle. Officer Lemberg ran the license plate 

 

1 The State also charged Branch with one count of violation of the Uniform 

Controlled Substances Act, chapter 69.50 RCW. That charge is not at issue in 

this appeal. 
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number for the Accord, but by the time he learned it had been reported stolen, 

the vehicle had left and Officer Lemberg was no longer in the area. Officer 

Lemberg broadcasted the information over the radio but did not take any other 

action that day with regard to the Accord.

Officer Lemberg testified that several days later, he was scheduled to 

patrol Aurora again, so he “wanted to see if the vehicle was still reported stolen 

and if [he] needed to be looking for it.” He then testified as follows:

[PROSECUTOR:] And did you see that there had been [an] arrest 

for the – for that vehicle?

[OFFICER LEMBERG:] Yes.

[PROSECUTOR:] Did you recognize the person that was under 

arrest?

[OFFICER LEMBERG:] Yes.

[PROSECUTOR:] Had you had a prior contact with that person? 

[OFFICER LEMBERG:] Yes.

[PROSECUTOR:] Is that person in the room today?

[OFFICER LEMBERG:] Yes.

[PROSECUTOR:] Could you please identify the person?

[OFFICER LEMBERG:] It’s the black male with the dread locks in 

the white long sleeve button down.

[PROSECUTOR:] How sure are you that the person you saw in the 

car on July 18th, 2018 is the same person that you saw had been 

arrested?

[OFFICER LEMBERG:] If I had to assign a number to it I would say 

around 75 percent.

[PROSECUTOR:] Is that the same for the person you saw in the 

car on July 18th and you see today?
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[OFFICER LEMBERG:] Yes.

[PROSECUTOR:] And you – and it’s correct you wrote a report 

about this after?

[OFFICER LEMBERG:] That’s correct. 

The jury convicted Branch of possession of a stolen vehicle. Branch 

appeals. Additional facts related to the issues Branch raises on appeal are set 

forth below in the analysis of those issues. 

ANALYSIS

Admission of Officer Lemberg’s Testimony

Branch contends that Officer Lemberg’s testimony about his July 18 

encounter with the Accord constituted evidence of a prior bad act under ER 

404(b).

2

 Accordingly, Branch argues, the trial court erred by admitting the 

testimony without balancing its probative value against its prejudicial effect.3 He 

contends further that the trial court’s error was not harmless and, thus, reversal is 

required. Because Branch failed to preserve error with regard to the admissibility 

of Lemberg’s testimony as a prior bad act, we disagree.

“The appellate court may refuse to review any claim of error which was not 

raised in the trial court.” RAP 2.5(a). Additionally, “[e]rror may not be predicated 

 

2 ER 404(b) provides, “Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to show action in 

conformity therewith. It may, however, be admissible for other purposes, such as 

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.”

3

“Before a trial court may admit evidence of other crimes or misconduct, it 

must . . . balance the probative value of the evidence against the danger of unfair 

prejudice.” State v. Mee, 168 Wn. App. 144, 154, 275 P.3d 1192 (2012). 
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upon a ruling which admits . . . evidence unless . . . a timely objection . . . is 

made, stating the specific ground of objection, if the specific ground was not 

apparent from the context.” ER 103(a)(1) (emphasis added).

Here, Branch did not object below to the admission of Officer Lemberg’s 

testimony on the ground of ER 404(b). To be sure, Branch did move in limine to 

exclude Officer Lemberg’s testimony. But that motion asserted that Lemberg’s 

later identification of Branch was impermissibly suggestive under an application 

of the Manson4factors, and that its probative value was outweighed by its 

prejudicial effect for that reason. Branch also made a general motion in limine to 

exclude prior bad acts evidence under ER 404(b), but Branch did not mention 

Officer Lemberg’s testimony in the context of that motion. Rather, it is clear from 

the argument on that motion that it was directed at evidence regarding another 

pending case and Branch’s other contacts with police, not the July 18 contact 

with Officer Lemberg. Finally, before Officer Lemberg testified, the prosecutor 

expressed concern about the scope of examination and whether counsel could 

elicit specifics about how Officer Lemberg identified Branch, e.g., by reading the 

arrest report and looking at the location. But at no point in the resulting colloquy 

did Branch’s counsel contend that Officer Lemberg’s testimony about the July 18

encounter constituted evidence of a prior bad act. 

In short, Branch did not argue below that Officer Lemberg’s testimony 

about the July 18 encounter constituted evidence of a prior bad act under ER 

 

4 Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 

(1977).
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404(b). And although Branch did contend that Officer Lemberg’s identification of 

Branch was impermissibly suggestive, he does not renew that argument on 

appeal.5 Furthermore, Branch does not argue that the trial court’s admission of 

Officer Lemberg’s testimony was an error of constitutional magnitude that can be 

raised for the first time on appeal. Cf. State v. Jackson, 102 Wn.2d 689, 695, 

689 P.2d 76 (1984) (“Evidentiary errors under ER 404 are not of constitutional 

magnitude.”) For these reasons, we decline to consider Branch’s ER 404(b) 

challenge to Officer Lemberg’s testimony. 

Prosecutorial Misconduct

Branch contends that the prosecutor committed reversible misconduct

during closing. We disagree. 

Prosecutorial misconduct may deprive a defendant of his 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 claim of prosecutorial misconduct, the 

defendant must establish ‘that the prosecutor’s conduct was both improper and 

prejudicial in the context of the entire record and the circumstances at trial.’” 

State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011) (internal quotation 

marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 

 

5 Alternatively, to the extent that Branch does raise this argument on 

appeal, it is not adequately briefed to warrant consideration. See Norcon 

Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 

(2011) (appellate court “will not consider an inadequately briefed argument”). 
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(2008)). “We review a prosecutor’s comments during closing argument in the 

context of the total argument, the issues in the case, the evidence addressed in 

the argument, and the jury instructions.” State v. Boehning, 127 Wn. App. 511, 

519, 111 P.3d 899 (2005).

If the defendant establishes that a prosecutor’s statements are improper, 

“we determine whether the defendant was prejudiced under one of two standards 

of review.” State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). “If 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. But where, as here, the defendant did 

not object at trial, “the defendant is deemed to have waived any error, 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 760-61. 

“Under this heightened standard, the defendant must show that (1) ‘no curative 

instruction would have obviated any prejudicial effect on the jury’ and (2) the 

misconduct resulted in prejudice that ‘had a substantial likelihood of affecting the 

jury verdict.’” Emery, 174 Wn.2d at 761 (quoting Thorgerson, 172 Wn.2d at 455). 

Here, Branch first contends that the prosecutor committed misconduct by 

“repeatedly bringing the jurors’ attention to the officer witnesses’ superior 

intelligence and telling jurors that this case is just the type of case where 

everything ‘fall[s] into place.’” Specifically, Branch asserts:

[The prosecutor] told jurors that: “Officer Culbertson does a good 

job here”; “Probably the best thing – the smartest thing that Officer 

Culbertson did here . . .”; “Officer King actually takes the plate into 

evidence . . . which is a very, very smart thing to do here”; Officer 
No. 79765-4-I/8

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Culbertson “thought about what’s the next best thing to do, what’s 

the smartest thing to do? Get that license plate.”

(Most alterations in original.) Branch also points out that the prosecutor told 

jurors, “At the end of the day this was a really good investigation” and also,

This was a very good investigation, very smart for them to 

put that plate for fingerprint testing, very smart to get that key out of 

the ignition the[ ] way they did. Sometimes cases really are 

straightforward. Sometimes cases really kind of fall into place. And 

that’s what you have here. Absent Mr. Branch making a full 

confession you have a really good case here.

Branch contends that these statements constituted improper bolstering and that 

they “interfered with individual jurors’ role of assessing the facts, witness 

credibility, and the quality of the investigation themselves.” We agree, in part. 

Specifically, although “[a] prosecutor has wide latitude in closing argument 

to draw reasonable inferences from the evidence and to express such inferences 

to the jury,” Boehning, 127 Wn. App. at 519, a prosecutor may not express a 

personal opinion independent of the evidence, because juries may believe that 

prosecutors have insider information that was not shared during trial. See State 

v. Susan, 152 Wash. 365, 380, 278 P. 149 (1929) (“A jury might well believe that 

such a statement by a sworn officer of the law, in whom they have confidence, 

might indicate that such officer was acquainted with facts which had not been 

disclosed to the jury by the testimony.”). Additionally, “it is generally improper for 

prosecutors to bolster a police witness’s good character even if the record 

supports such argument.” State v. Jones, 144 Wn. App. 284, 293, 183 P.3d 307 

(2008). 

Here, the prosecutor’s statement that the case was “straightforward” and 
No. 79765-4-I/9

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one that “really kind of fall[s] into place” was an acceptable appeal to the jury’s 

common sense based on the evidence the prosecutor referred to immediately 

before his statement—namely, the key and the license plate. Indeed, the jury 

was expressly instructed that the evidence in the case included “evidence from 

which, based on your common sense and experience, you may reasonably infer 

something that is at issue in this case.” (Emphasis added.)

However, the prosecutor’s statements that the officers made “smart” 

decisions and that their investigation was “really good”; “a very good 

investigation” were improper. These statements crossed the line from 

reasonable inferences from the evidence to personal opinions suggesting that 

this case was investigated better than other cases with which the prosecutor was 

familiar. They also bolstered the officers’ character by implying that the officers 

were smart and good investigators. 

Nevertheless, we conclude that these comments were not prejudicial. 

Specifically, unlike Jones, the case on which Branch primarily relies, this was not 

a case where “the verdict depended substantially on whether the jury found [the 

officer]’s testimony credible.” Jones, 144 Wn. App. at 300-01. Instead, there 

was substantial evidence of Branch’s guilt independent of the officers’ 

testimony—specifically, the shaved key and the presence of Branch’s fingerprint 

on the back of the mismatched license plate.

Furthermore, Branch’s selective recounting of the prosecutor’s comments

omits the context in which they were made. In the course of arguing that Officer 

Culbertson’s decision to take the plate into evidence was “smart” or the “smartest 
No. 79765-4-I/10

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thing to do,” the prosecutor also argued, “It wouldn’t have made sense for the 

officer to say let’s get fingerprints inside the car because clearly Mr. Branch was 

in the car.” Similarly, in the course of arguing that the investigation was a “really 

good investigation,” the prosecutor argued:

The fact that you’re going to say that prints should’ve been done 

from inside the vehicle to see if there were other people in there, 

what would that have proven, that other – that he had friends ride 

around with him in the car? What would – what would that have 

get – what would that have helped the State prove? Nothing.

When the prosecutor’s comments are viewed in context, it is clear that the 

prosecutor was addressing an argument that defense counsel was anticipated to 

make—i.e., that the officers should have tested the inside of the car for prints—

by arguing that the decision not to do so was reasonable. The prosecutor could 

and should have made this point without injecting his personal opinion. But we 

are not persuaded that, in the context of the total argument and the 

circumstances at trial, including the other evidence of Branch’s guilt, the 

prosecutor’s comments had a substantial likelihood of affecting the jury verdict. 

And they certainly were not flagrant and ill intentioned. Therefore, these 

comments do not require reversal.

Branch also contends that the prosecutor committed improper bolstering 

by “claim[ing] that none of the officers had personal relationships with the 

defendant, ‘or something where there’s somehow [a] bias’” and by stating, “The 

witnesses testified the best they could”; “When they didn’t know something they 

asked for clarification”; “They knew – stuff they knew they were readily able to 

say and stuff they didn’t know then they had their recollection refreshed when 
No. 79765-4-I/11

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they looked at their reports”; and “Like, they knew what they were talking about.” 

We conclude that the prosecutor’s claim that the officers did not have 

personal relationships with the defendant “or something where there’s somehow 

a bias” was improper, but the remaining statements were not. Specifically, “a 

prosecutor may not make statements that are unsupported by the evidence.” 

Boehning, 127 Wn. App. at 519. To this end, the State does not point to any 

evidence that would support the prosecutor’s claim that the officers did not have 

a personal relationship with or bias against Branch. Instead, the State argues 

that it “was not misconduct to note the absence of bias on the part of the officers 

when there was no evidence of bias.” And, to be sure, “a prosecutor may 

comment on the absence of certain evidence if persons other than the defendant 

could have testified regarding that evidence.” State v. Jackson, 150 Wn. App. 

877, 887, 209 P.3d 553 (2009). But here, the prosecutor did not just comment 

on the absence of evidence of a personal relationship with or bias against 

Branch—rather, the prosecutor stated as fact that the officers did not have a 

relationship with or bias against him. These statements were improper. 

The remainder of the prosecutor’s statements, however, were not 

improper. Rather, when viewed in context, they acceptably summarized and 

drew reasonable inferences from the quality of the witnesses’ memories and the 

manner in which they testified—factors that the jury was expressly permitted to 

consider in judging credibility.6 

 

6 Jury instruction 1 provided in relevant part: “In considering a witness’s 

testimony, you may consider these things: . . . the quality of a witness’s memory 

while testifying; the manner of the witness while testifying; . . . and any other 
No. 79765-4-I/12

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Additionally, and though improper, the prosecutor’s claim that the officers 

did not have a relationship with or bias against Branch was not prejudicial. As 

already discussed, this was not a case that turned on the officers’ testimony—

instead, there was substantial evidence of Branch’s guilt independent of that 

testimony. And Branch cites no authority that persuades us that the prosecutor’s 

single reference to the officers’ lack of bias was so flagrant and ill intentioned as

to require reversal. Cf. State v. Belgarde, 110 Wn.2d 504, 508-09, 755 P.2d 174 

(1988) (reversal required where prosecutor in murder trial told jury “that the 

defendant [was] ‘strong in’ a group which the prosecutor describe[d] as a ‘deadly 

group of madmen’, and ‘butchers that kill indiscriminately’” and that the 

prosecutor likened to terrorists). Therefore, reversal is not required.

Branch next contends that the prosecutor committed reversible 

misconduct by saying, “Everything that was testified to is pretty reasonable. It all 

kind of makes sense. It all flows together. There’s nothing that’s too outlandish. 

Everything sounded pretty reasonable.” But Branch again omits the context for 

these comments, which were immediately followed by an appeal to the jury’s

common sense, a reference to the jury instructions, and a summary of evidence 

from which the jury could reasonably infer that Branch knew the car was stolen. 

Taken in context, the prosecutor was merely informing the jury that it could 

employ common sense and notions of reasonableness in evaluating the 

 

factors that affect your evaluation or belief of a witness or your evaluation of his 

or her testimony.” 
No. 79765-4-I/13

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evidence, as expressly permitted by the court’s jury instructions.7 This was not 

misconduct. 

Finally, Branch contends that the prosecutor committed reversible 

misconduct by using the phrase “we know” when summarizing the facts. But the 

record in this case confirms that the prosecutor was not using “we know” to 

suggest that the State had subjective knowledge of the facts. To the contrary, 

the record is clear that the prosecutor was not employing ”we” to refer to himself 

or to the State, but to marshal the evidence that was admitted at trial and the 

reasonable inferences from that evidence. Accordingly, Branch’s contention 

fails. Cf. United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005) (use of 

the phrase “we know” not improper where used “to marshal evidence actually 

admitted at trial and reasonable inferences from that evidence, not to vouch for 

witness veracity or suggest that evidence not produced would support a 

witness’s statements.”).

Ineffective Assistance

Branch contends that his counsel was ineffective for not objecting to the 

prosecutor’s comments during closing. But as discussed, the prosecutor’s 

improper comments were not prejudicial. Therefore, Branch’s counsel was not 

deficient for not objecting to those comments or to the prosecutor’s other 

 

7 Jury instruction 6 provided in relevant part: “The term ‘circumstantial 

evidence’ refers to evidence from which, based on your common sense and 

experience, you may reasonably infer something that is at issue in this case.” 

Additionally, jury instruction 1 allowed the jury to consider “the reasonableness of 

the witness’s statements in the context of all of the other evidence” in considering 

a witness’s testimony. 
No. 79765-4-I/14

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challenged comments, and Branch’s ineffective assistance claim fails. See

Thorgerson, 172 Wn.2d at 455 (“[S]ince the challenged conduct was not 

improper or not prejudicial, [the defendant] failed to establish that counsel’s 

performance was deficient.”); In re Pers. Restraint of Davis, 152 Wn.2d 647, 757, 

101 P.3d 1 (2004) (“To establish a claim of ineffective assistance of counsel, [the 

defendant] must show both deficient performance and resulting prejudice.”). 

Cumulative Error

As a final matter, Branch contends that cumulative error denied him of his 

right to a fair trial. Because the prosecutor’s nonprejudicial comments during 

closing are the only errors identified in this appeal, we disagree. See State v. 

Venegas, 155 Wn. App. 507, 520, 228 P.3d 813 (2010) (cumulative error 

doctrine “does not apply where the errors are few and have little or no effect on 

the trial’s outcome”).

We affirm.

WE CONCUR: