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### INTHE COURT OFAPPEALS OFTHE STATEOFWASHINGTON^ ^

STATE OF WASHINGTON, Respondent,

v. KENNETH LYNN PROCK, Appellant. 

## DIVISIONONE 5 S%

</>rn No. 73121-1-1

_ *;2n

UNPUBLISHED OPINION
FILED: May 2, 2016 O ow —tr-i XT -J^<~

Schindler, J. — Kenneth Lynn Prock seeks reversal ofthejury conviction for 

### residential burglary in violation of RCW 9A.52.025. Prock contends prosecutorial misconduct during closing argument denied him of a fair trial. Inthe alternative, Prock argues his attorney provided ineffective assistance ofcounsel by failing to objectto the prosecutor's argument. We affirm.
FACTS 

### InJanuary 2014, Casey Robinett and his girlfriend Monica Certain rented a house located at 6103 Grove Street in Marysville. Robinett and Certain would drive to work together and return home around 6:00 or 7:00 p.m. When Robinett and Certain returned home from work on May 8, 2014, they saw 

### an older gold-colored sedan they did not recognize parked in theirdriveway. RobinettNo. 73121-1-1/2 

### and Certain parked in their driveway next to the gold car. Robinett noticed the back door to the house was open. Robinett told Certain to call the police. Robinett grabbed a hammer and entered 

### the house through the back door. Robinett shouted, "Whothe hell is here?" Kenneth Prockwalked out ofthe couple's bedroom and said, "I'mhere." When Robinett asked 

### Prock why he was inthe house, Prock said that the landlord sent him to "clear out the house." Robinett replied, "Bullshit. Iknowthe landlord." As he lefthouse, Prock said he "was sent here to do it" by his "friend fromArlington." Prock then got in his carand drove away. 

### At 7:47 p.m., Marysville Police Departmentofficers responded to the reported 

### burglary in process. The911 operatortold OfficerCharlesSmiththat the reported suspectwas driving a tan Saturn car. On his way to the house, Officer Smith saw a tan 

### Saturntraveling in the opposite direction. OfficerSmith turned around andfollowed the car. As OfficerSmith was turning around, the Saturn made an "immediate rightturn" onto a "side residential street." Officer Smith stopped the Saturn a shortdistance away. 

### Officer Smith confirmed the car's license plate number matched the license number of 

### the vehicleinvolved in the reported burglary. Officers then arrested Prock and advised him of his Miranda1 rights. Prock told Officer Smith that an individual named "Steve" gave him "permission to be inthe house." But Prock said he did not know Steve's last name, phone number, 

### or address. According toProck, Stevetold him "someone hadmoved out ofthehouse" and Prock could "take what he wanted." Prock stated he was inthe house for about three minutes and did not have time to take anything. Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).No. 73121-1-1/3 

### The State charged Prock withresidential burglary in violation of RCW 9A.52.025. At trial, Robinett and Certain identified Prock as the individual that had been inside their house. Robinett and Certain testified that Prock did not have permission to enterthe house and did not have permission to take or "go through" any items from the house. Robinetttestified nothing was missing from the home but several items were "out of order." Robinett stated Certain'sjewelry box inthe bathroom had been moved and 

### opened, and the door ofthe bedroom closetwas open and the clothes were "allpushed together" and "not normal." Robinetttestified the couple "always made a point to lock the doors behind us" because "I've been broken into before." Procktestified that he was not "there to clean out anything." Prock testified he


### was "looking to rent a place inMarysville." Prock said he had met a man named "Steve" at a bar earlier that day and Steve told him the house was "abandoned and that it needed to be cleaned up." Prock said he had previously driven bythe house and wondered if itwas abandoned. According to Prock, he "went to go check out this place" to see ifthe property was available to rent. Procktestified that he arrived at the house about4:45 p.m. and after looking into 

### the windows, "it did look like
... the place was abandoned." Prock said he tried to 

### determine who owned the property bylooking up tax information on the Snohomish 

### CountyAssessor's website but he "wasn'treally getting anywhere with that." Prock next talked to a neighbor whotold him that she did not think anyone lived in the home. Prock testified he found a past-due cable bill addressed to "Casey Robinett" in a recycling bin in front ofthe home. Prock said he performed a search on Facebookfor individuals 

### named Casey Robinett. Prock found a Facebook account owned by a young femaleNo. 73121-1-1/4 with that name living in Florida. Because this was the only profile on Facebookfor an individual named Casey Robinett, Prock concluded the house was abandoned. Prock stated that when he walked to the back ofthe house, the back door was "standing open." Prock said he walked into the house and saw a dog in a cage. Because there was no food or water inthe dog's dish, Prock concluded the dog must have been "left behind." Prock said he called his girlfriend and told herto contact animal control. Prock said that as soon as he walked into the bedroom, he heard
someone say, "Hey, who's here?" Procktestified he "proceeded to walk out" ofthe house because he "didn'twant to cause any trouble and wasn'tthere to, you know,
cause any trouble." Prock testified he did not touch or move anything inthe house and he did not take anything from the house. Prock said he did not enterthe house "with the intention oftaking anything from the house." Prock admitted seeing "the police cars coming" with lights and sirens activated but said he "didn'tthink that ithad anything to do with what hadjust occurred." Prock 

### testified he made the right-hand turn because he "decided to go to my sister's" to "see what's up there" and he did not see Officer Smith turn around to follow him. Atthe end ofthe trial, the court instructed thejury on the charged crime of 

### residential burglary as wellas the lesser included offense of criminaltrespass in the first degree. 

### During closing argument, the prosecutorargued thejury's decision on the charge ofresidential burglary would likely turn on whetherthe jury found that Prock entered or remained in the home "with the intent to commit a theft therein." The prosecutor argued 

### the "evidence shows quite clearly thatthe Defendantdid enter intothat propertywiththeNo. 73121-1-1/5 intentto take the property therein." The prosecutor argued Prock's "story that he was looking for a place to rent" was not credible. Again, this is where we come into the credibility determinations and looking closely at the evidence. Mr. Prock has offered a story that he was looking for a place to rent. He had sort of seen this place before and it stood out in his mind and that he ran into someone named Steve who said, yeah, that place, no one's there right now. As a matter offact, the back door is open. No evidence that Steve was the owner or otherwise authorized him to go in there. But this place that he was looking at, hejust runs into a guy in a bar and low and behold that back door is open. You know, and what a coincidence that the back door would be open on this day when we have the testimony from Monica and Casey as to how they make very certain thattheir back door is locked and was so on this day. The prosecutortold thejury that "credibility determinations are yours" and thatthejury would need to decide whether Prock's story "holds water." The credibility determinations are yours. You will have to determine whether or not that holds water, this unknown Steve hejust happened to meet in a bar and, oh, the back doorwas open. 

### The defense argued the only element ofresidential burglary indispute was whether Prock intended to commit a theft in the home. The defense conceded Prock's 

### testimony established he "knowinglyentered and remained inthat building" and "he knew that the entry or remaining was unlawful." Consequently, the defense told thejury Prock "should be found guilty of criminal trespass, but not ofresidential burglary," because Prock's testimony and the evidence showed Prock did not intend to commit a
theft in the house. 

### So, all of this shows thatyes, he should be found guilty of criminal trespass, but not ofresidential burglary, because residential burglary requires the intention to commita crime therein and the evidence doesn't 

### supportthat. Ken's story doesn't supportthat and none ofthe evidence that you've heard supports that.No. 73121-1-1/6 The defense argued several times that Prock's testimony showed he did not intend to commit a theft inthe house. Specifically, the defense argued the "steps Ken took to verifying that [the house was abandoned] before he even entered the house
. .. clearly establishes thatthere was no intent." He tried to find property records online to find outwho the owner ofthe house was, he spoke to the neighbor and asked ifanyone was living there, he looked inthe garbage and then tried to find a Casey Robinett on Facebook. All ofthis supports the fact that he wasjust looking for a place to rent. He wasn't looking with the intention ofcommitting a crime inside. He wasn't looking to take anything. He wasjust looking and doing his due diligence to try and find the owner ofthe house because he wanted to rent it. In rebuttal, the prosecutor asked thejury, "Is what the Defendant offered you reasonable?" The prosecutorthen told thejury, "Ifthat is not reasonable to you, if, based upon on your lifeexperiences, that is not reasonable, find him guilty. That's not a request. That's your obligation under the law. Find him not guilty ifthat's reasonable." Is what the Defendant offered you reasonable? Is it? Is itreasonable based on your common experiences, based upon whatyou know of how people act, how they interact, the way the world works, walking into bars by happenstance, people named Steve, just happened to change your mind at the last second, take this other route. Ifthat is not reasonable to you, if, based upon on your lifeexperiences, that is not reasonable, find him guilty. That's not a request. That's your obligation underthe law. Find him not guilty ifthat's reasonable. Prock did not object. 

### Thejury convicted Prock ofresidential burglary and the court imposed a 13-month standard range sentence. ANALYSIS 

### Prock contends prosecutorial misconduct during closing argumentdenied him of 

### the right to a fair trial. Prock argues the prosecutor improperly shifted the burden ofNo. 73121-1-1/7 

### proof by arguing thejury must convict Prock if it found his testimony was not reasonable. To prevail on a claim ofprosecutorial misconduct, a defendant must show the prosecutor's argumentwas both improper and prejudicial. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008). An abuse ofdiscretion standard applies to allegations of prosecutorial misconduct. State v. Lindsay. 180Wn.2d 423, 430, 326 P.3d 125 (2014). 

### Aprosecuting attorney "commits misconduct by misstating the law." State v. Allen. 182 Wn.2d 364, 373, 341 P.3d 268 (2015). Prosecutorial misconduct is prejudicial where there is a substantial likelihood the improper conduct affected thejury's verdict. State v. Yates. 161 Wn.2d 714, 774, 168 P.3d 359 (2007). Inanalyzing prejudice, "we do not look at the comments in isolation, but inthe context ofthe total argument, the issues in the case, the evidence, and the instructions given to thejury." State v. Emery. 174 Wn.2d 741, 764 n.14, 278 P.3d 653 (2012). If a defendant does not object attrial, the defendant is deemed to have waived any error unless the prosecutor's misconduct was 

### so flagrant and ill intentioned that an instruction could nothave cured the resulting prejudice. Emery. 174 Wn.2d at 760-61. 

### During rebuttal argument, the prosecutor "is entitled to make a fairresponse to 

### the arguments ofdefense counsel." State v. Gauthier. 189 Wn. App. 30, 37, 354 P.3d 900 (2015); State v. Gregory. 158 Wn.2d 759, 842, 147 P.3d 1201 (2006); State v. Russell. 125 Wn.2d 24, 87, 882 P.2d 747 (1994). Even where the comments are 

### improper, the remarks by the prosecutorare notgrounds forreversal" 'ifthey were invited or provoked bydefense counsel and are in reply to his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that aNo. 73121-1-1/8 curative instruction would be ineffective.'" State v. Weber. 159 Wn.2d 252, 276-77, 149 P.3d 646 (2006) (quoting Russell. 125 Wn.2d at 86); Gauthier. 189 Wn. App. at 38. The State has the burden of proving the elements of a crime beyond a reasonable doubt. In re Winship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 

### (1970); State v. Borrero. 147 Wn.2d 353, 364, 58 P.3d 245 (2002). "Shiftingthe burden ofproofto the defendant is improperargument." Inre Pers. Restraint ofGlasmann. 175 Wn.2d 696, 713, 286 P.3d 673 (2012). "Misstating the basis on which a jury can acquit insidiously shifts the requirementthat the State prove the defendant's guilt beyond a reasonable doubt." Glasmann. 175 Wn.2d at 713: State v. Vassar. 188 Wn. App. 251, 260, 352 P.3d 856 (2015). 

### Prock relies on Glasmann to argue the prosecutorshifted the burden of proof by 

### misstating the basis on which thejury could acquit. InGlasmann. the prosecutortold 

### jurors that inorderto reach a verdict, they must determine, "Did the defendanttell the truth when he testified?" Glasmann. 175 Wn.2d at 701.2 Our Supreme Court stated 

### this argument "stronglyinsinuated thatthe jury could acquit (or find himguilty oflesser charges) only if it believed Glasmann." Glasmann. 175 Wn.2d at 713. Because "the proper standard iswhetherthe evidence established that he was guilty of the State's 

### charges beyond a reasonable doubt," the court concluded it "was clearly misconduct for the prosecutorto inform the jury that acquittal was appropriate only ifthe jury believed Glasmann." Glasmann. 175 Wn.2d at 713-14. Here, as in Glasmann. the prosecutor's remarks misstated the law and constituted misconduct. However, because Prock cannot show there is a substantial likelihood the 

### argumentaffected the jury'sverdict, he cannot show the argument was prejudicial. The 2Internal quotation marks omitted.

8No. 73121-1-1/9 State had a strong case. The defense conceded every element ofresidential burglary except the requirementthat Prock entered the house with intentto commit a theft. The State introduced ample evidence attrial to supportthe intent element ofthe crime. Robinetttestified that on May 8, Prock told him he was sentto "clearoutthe house." Similarly, Officer Smith testified Prock stated Steve told Prock "he could take what he wanted" from the house but he had not been able to take anything because "he didn't have time." Prock's own testimony established Steve told him the house "needed to be 

### cleaned up." Further, the court's instructions to thejury correctly stated thatto convict Prock ofresidential burglary, thejury mustfindeach ofthe elements ofthe crime 

### beyond a reasonable doubt; informed thejurors thatthe lawwas contained in the court's instructions; and directed thejury to disregard any statement by the lawyers thatwas 

### not supported by law in the court's instructions. "Wepresume thatjuries follow all instructions given." State v. Stein. 144 Wn.2d 236, 247, 27 P.3d 184 (2001); State v. Condon. 182 Wn.2d 307, 333, 343 P.3d 357 (2015). 

### Moreover, nothing suggests the prosecutor's statementwas so flagrant and ill intentioned that any prejudice could not have been obviated with a curative instruction. Warren. 165 Wn.2d at 28 (holding court's instruction cured prosecutor's argument 

### undermining the State's burden ofproof); see Glasmann. 175 Wn.2d at 713-14 (noting 

### argument misstating basis onwhich a jury may acquit"in and of itselfwould probably 

### notjustify reversal"). Because Prockdid not object to the prosecutor's argument attrial, he has waived his right to challenge it on appeal. Emery. 174Wn.2d at 760-61. Inthe alternative, Prock contends his attorney provided ineffective assistance of counsel by not objecting to the argument.No. 73121-1-1/10

We review claims of ineffective assistance ofcounsel de novo. State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009). "Courts strongly presume that counsel's representation was effective." Emery. 174 Wn.2d at 755. To establish ineffective assistance ofcounsel, a defendant must show both that counsel's performance was deficient and that the performance prejudiced the defendant's case. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Emery. 174 Wn.2d at 755. "Deficient performance is performance falling 'below an objective standard of reasonableness based on consideration of all the circumstances.'" State v. Kvllo. 166 Wn.2d 856, 862, 215 P.3d 177 (2009) (quoting State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)). "Judicial review of
an attorney's performance is highly deferential.
. . and such performance is not deficient if itcan be considered a legitimate trial tactic." State v. Humphries, 181 Wn.2d 708, 720, 336 P.3d 1121 (2014). "[T]he defendant must show inthe record the absence oflegitimate strategic or tactical reasons supporting the challenged conduct by counsel." McFarland. 127 Wn.2d at 336. "To establish prejudice, a defendant must show that butfor counsel's performance, the resultwould have been different." State v. McNeal. 145 Wn.2d 352, 362, 37 P.3d 280 (2002). Even ifProck could establish the failure to object was deficient and not a 

### strategic decision, he cannot show prejudice. Prock does not show that "but for counsel's performance, the result would have been different." McNeal, 145 Wn.2d at 362. Thus, we hold Prock's trial counsel was not ineffective for failing to objectto the

10No. 73121-1-1/11 prosecutor's misstatement ofthe basis on which thejury could convict Prock.
We affirm. 

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WE CONCUR:

^tiy- 

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