IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. MELONI TERRY, Appellant. No. 70255-6-1

UNPUBLISHED OPINION FILED: June 30, 2014 C"3

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— Verellen, A.C.J.

— Meloni Terry challenges her convictions for burglary inthe second degree and possessing stolen property inthe third degree. She argues that the prosecutor committed misconduct in closing argument by appealing to thejury's fear of what might have happened to the victims during a residential burglary. Because the prosecutor's statements were not so flagrant and ill intentioned that an instruction could not have cured any resulting prejudice, Terry waived the issue by failing to object during closing argument. Additionally, she challenges the sufficiency ofthe evidence supporting her conviction for possessing stolen property. But viewed in a light mostfavorable to the State, there was sufficient evidence that she "disposed of stolen property. Therefore,

we affirm.No. 70255-6-1/2

FACTS 

### When George and Emilie Rankin returned to their Orcas Island home, George thought he heard footsteps near a studio on the property. As he approached the studio, 

### he heard what sounded like two or three people running around inside. George then entered the studio and noticed that itwas messierthan he had leftit—bags oftheir belongings were lying on their side with the contents pulled out ofthem. He grabbed a

vacuum cleaner tube to make himselffeel safer and looked around for less than a minute, but did not see anyone or anything. Emilie noticed that a backwindow inthe studio was open. They concluded that the noises and damage were caused by raccoons, locked the doors to the studio, and started to drive to the post office on an errand. As they drove down the road, they noticed a blue station wagon parked near a gate on their property. George approached the car and noticed some oftheir property in the back seat: Emilie's red plaid housecoat, lime green fleece, and his blue work jacket. George then realized thatthey were being robbed. Neither George nor Emilie had a cell phone with them, so they tried to figure out how to keep the carfrom driving away with their property. A red and black sports car then drove down the road and Emilie flagged itdown. She asked him who he was going to see and he answered a woman at the end ofthe road, but could not describe the woman or where her house was. Just then, Terry came walking down the road, waved, and told the Rankins that everything was okay, her car broke down, that she called her brotherto come help her. The Rankins asked Terry what their stuffwas doing in her car and the man inthe redNo. 70255-6-1/3


### and black sports carquicklydrove away. Terry told the Rankins thatthejackets in her
carwere hers. As Terry approached the driver's side ofthe station wagon, George noticed that she had one oftheir garden knives tucked inthe back ofher pants. The 

### Rankins, more cautious after seeing the knife, then watched Terry unlock her car door, start up the car and drive away. 

### George and Emiliememorized Terry's license plate number and returned home to callthe police. UndersheriffBruce Distler arrived at the Rankins property and 

### accompanied them backto the studio. Upon closer inspection, the Rankins noticed that 

### other property was missing, includingchainsaws and weed eaters. The Rankins also noticed that one ofthe studio doors was ajar, even though they had closed and locked allthe doors before leaving the property. George then became concerned that

someone had indeed been in the studio when he and Emilie entered itearlier. 

### The Rankins accompanied UndersheriffDistler to a home thatwas the registered 

### address of the station wagon. There, they identified Terry, the blue station wagon, and the red and black sports car. George was able to identify his blue workjacketthatwas 

### in the back of the station wagon. Deputy JackWilsey went to the house on the property and returned with a red plaidhousecoat and a limegreen fleece. The Rankins also identified these as Emilie's. 

### The State charged Terry withone count of burglary in the second degree and
one count ofpossessing stolen property in the thirddegree. At trial, Terry presented evidence that the blue work jacket, red plaidhousecoat and limegreen fleece belonged to her. A jury convicted Terry on both counts. Terry appeals.No. 70255-6-1/4

DISCUSSION Prosecutorial Misconduct 

### Terry argues thatthe prosecutor's statements in closing argumentwere flagrant, ill intentioned, and incurable by a limitinginstruction. We disagree. 

### The prosecutor began closing argumentwith the following narrative: Your Honor, Counsel, Members ofthe Jury, this was a very— 

### potentially a dangerous situation. Isometimes thinkthat God protects the innocent and the naive. Inthis particularcase Iwould suggestthatthe Rankins were naive, and that's probably what saved them in this situation. 

### I'm not going to go overthe photographs. They're there. You've 

### seen them, but Iask you, what would have happened ifGeorge Rankin were a little more skeptical initially and had gone down into the small room towards the back where that little bathroom is and ifthat's where one of 

### the burglars was hiding? There's George blocking the person's way out in the back ofthat room. Whatwould have happened? 

### Iask you what would have happened ifGeorge had climbed that 

### ladder to go up to the loftto see what was going on there and ifthat is where the person or persons were hiding? Andthere's George on a 

### ladder blocking the path of the burglars. What would have happened? 

### Luckily, they're naive. They live in thiswonderful place. No one had ever burglarized them before. They've had some strangethings happen, but nothing really significant. They feel safe. And when they looked at the situation luckilythey said, doggone raccoons. Got to be raccoons. Thank 

### God they werewilling to say that at thattime.'11 Defense counsel did not object. 

### "Allegations ofprosecutorial misconduct are reviewed under an abuse of discretion standard.'"2 "The defendant bears the burden ofshowing that the comments 

### were improper and prejudicial."3 Failure of the defendantto object orrequest a curative
1Report ofProceedings (RP) (Mar. 26, 2013) at 205-06. 2State v. Lindsav, No. 88437-4, 2014 WL 1848454, at *3 (Wash. May 8, 2014) (quoting State v. Brett, 126Wn.2d 136, 174-75, 892 P.2d 29 (1995)). 3 Id.No. 70255-6-1/5
instruction attrial waives the issue ofmisconduct unless the conductwas so flagrant 

### and ill intentioned that an instruction could not have cured the resulting prejudice.4 The prejudicial effect of improper comments must not be viewed in isolation but rather inthe context ofthe total argument, the issues inthe case, the evidence addressed inthe 

### argument, and the instructions given to thejury.5 Defense counsel's failure to object,
move for a mistrial, or request a curative instruction strongly suggests that, in context, 

### the argument did not appear prejudicial.6 Although a prosecutor has wide latitude to argue reasonable inferences from the evidence, he or she must seek convictions based only on probative evidence and sound 

### reason.7 It is improperfor a prosecutorto deliberately appeal to thejury's passion and prejudice and thereby encourage thejury to base theirverdict on the improper argument 

### ratherthan properly admitted evidence.8 In State v. Russell, the Supreme Court held that the prosecutor committed 

### misconduct by appealing to thejury's fears and arguing that, ifacquitted, the defendant 

### would go to anothercommunity and begin killing again.9 But the Russell court went on to hold thatthe prosecutor's misconductwas not so flagrant as to warrant a new trial because Russell had not objected to the argument, the argument did not engender



### 4Jd, 5State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). 6State v. Swan, 114Wn.2d 613, 661, 790 P.2d 610 (1990). 7In re Glasmann. 175 Wn.2d 696, 704, 286 P.3d 673 (2012). 

### 8ld 9 125 Wn.2d 24, 89, 882 P.2d 747 (1994).No. 70255-6-1/6 repulsion above and beyond the gruesome nature ofthe crime, and the defense 

### incorporated the statement into its own argument.10 The prosecutor's remarks here invited thejurors to speculate as to what would have happened had George discovered a burglar inside his home. Although an 

### improper appeal to emotion, the introduction to closing argumentwas not so flagrant and ill intentioned that the argument could not have been cured with an instruction if Terry had objected. This case is similar to Russell, but the remarks themselves were not as inflammatory as the remarks made in Russell. The riskfaced by George when he interrupted a burglary in progress was already apparent underthe facts admitted at trial. Even though Terry's defense counsel did not incorporate the statement into his own argument as Russell's attorney did, it is likely that a curative instruction could have erased any fear or revulsion thejurors felt based on the prosecutor's comments. Additionally, the trial court instructed thejury that "[y]ou must not letyour emotions overcome your rational thought process. You must reach your decision based
on the facts proved to you and on the law given to you, not on sympathy, prejudice, or 

### personal preference."11 Juries are presumed to follow instructions.12 Therefore, it is unlikely that these introductory comments prejudiced Terry.

10iU 

### 11 Clerk's Papers at 23.
12 State v. Dye, 178 Wn.2d 541, 556, 309 P.3d 1192 (2013).No. 70255-6-1/7 

### Terry argues thatthe prosecutor's statements were analogous to the statements 

### made inState v. Pierce and require reversal.13 We disagree. In Pierce, during closing arguments, the prosecutorfabricated an entire conversation between the defendant and 

### his victimsjust before he murdered them.14 The prosecutoralso created a fictitious internal dialogue the defendant had with himselfbefore deciding to rob and murderthe 

### victims, which the prosecutor recited in a firstperson narrative during closing.15 Finally, the prosecutor stated that "[njever intheirwildest dreams" or "wildest nightmares" would 

### the victims have imagined that they would be murdered that day.16 Division Two of this court held that these arguments had absolutely no basis inthe record and improperly 

### asked the jurors to step into both the victim's and the defendant's shoes.17 It also held that, taken together, there was more than a substantial likelihood that the arguments 

### affected thejuryverdict.18 Here, the prosecutor's statements were not nearly as inflammatory as those made in Pierce. The introductory statements were isolated and not part of a string of improper arguments. They also were consistent with facts supported by the record. Therefore, reversal is not required.



### 13169Wn. App. 533, 280 P.3d 1158. review denied, 175Wn.2d 1025(2012). 14 ]cL at 543. 15 JU at 542. 16idLat 541. 17jd at 555. 18 Id. at 556.No. 70255-6-1/8 Sufficiencyofthe Evidence Terry argues that the State failed to present sufficient evidence that she "disposed ofstolen property, as required by the "to convict" instruction for possession of stolen property in the third degree. We disagree. Ifthe State adds an unnecessary element inthe to convict instruction without objection, the added element becomes the law ofthe case and the State assumes the 

### burden of proving it.19 A criminaldefendant may challenge the sufficiency of the evidence to support such added elements.20 In a criminalcase, evidence is sufficient to support a guilty verdict if, viewed inthe light mostfavorable to the State, any rational 

### trier of fact couldfind each elementof the crime proved beyond a reasonable doubt.21 In State v. Lillard, the to convict instruction for possessing stolen property 

### required the State to prove beyond a reasonable doubtthatthe defendant "'knowingly 

### received, retained, possessed, concealed, ordisposed of stolen property.'"22 This court held that because the instruction specifically listed the alternative definitions of 

### "possession" as alternative means ofthe offense to be proved by the State, there must be sufficient evidence to support each alternative, unless the verdictwas based on only


### one alternative means and substantial evidence supports that means.23 Here, similarto Lillard, the to convict instruction for possession of stolen property 

### inthe third degree required thatthe State prove beyond a reasonable doubt "[t]hat on or 19 State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998). 

### 20 id 21 State v. McKaque, 172 Wn.2d 802, 805, 262 P.3d 1225 (2011). 

### 22 122 Wn. App. 422, 434, 3d 969 (2004). 23 Id. at 434-35.No. 70255-6-1/9
about October 7, 2012, the defendant knowingly received, retained, possessed, 

### concealed, disposed ofstolen property."24 Nothing in the record indicates that the verdict was based on only one ofthese alternatives. Therefore, the State was required to present sufficient evidence to support each alternative. Terry argues that there was not sufficientevidence that she "disposed ofstolen property. The statute does not define the term "dispose of." Inorderto carry outthe legislature's intent and ascertain the plain meaning of "dispose of," the court may look to 

### the plainmeaning as reflected in a dictionary definition.25 Webster'sThirdNew International Dictionarydefines "dispose of as: 

### 1 a : to place, distribute, or arrange esp. inan orderly or systematic way 

### (as according to a pattern). . . b : to apportion or allot (as to particular purposes) freely or as one sees fit... 2 a : to transfer into new hands or to the control of someone else (as by selling or bargaining away): relinquish, bestow . . . b (1): to get rid of: throw away : discard
. . . (2): 

### to treat or handle (something) with the result of finishing or finishing with ... : complete, dispatch
... c : destroy[26] Here, there was sufficient evidence that Terry moved Emilie's red plaid 

### housecoat and limegreen fleece out ofher car and into a box nearthe door of her 24 Clerk's Papers at 37. The to convict instruction did not include the conjunction "and" or "or" in the list of alternative definitions. 25 In re Pet, of Danforth, 173 Wn.2d 59, 67, 264 P.3d 783 (2011); see also Garrison v. Wash. State Nursinq Bd., 87 Wn.2d 195, 196, 550 P.2d 7 (1976) ("Words in 

### a statute should be given their ordinary meaning absent ambiguity and/or a statutory definition."). 26 Webster's Third New International Dictionary 654 (2002); see also Modern Sewer Corp. v. Nelson Distrib.. Inc., 125 Wn. App. 564, 571, 109P.3d 11 (2005) 

### (relying, in part, on the 1971 version of Webster's ThirdNew InternationalDictionaryto determine that the meaning ofthe term "dispose" inthe Model Toxics Control Act, ch. 70.105D RCW, is "'[T]o place, distribute, or arrange esp. in an orderly or systematic way



### . . .; to apportion or allot. . . : to transfer into new hands or to the control ofsomeone 

### else
. .. ;; to get rid of: throw away.'") (alterations in original) (quoting Webster's Third New International Dictionary 654 (1971)).No. 70255-6-1/10 

### mother's house. Deputy Wilsey testified that as he walked toward the door of Terry's mother's house, "I walked inand right at the base ofthe stairs on the leftthere was a box that had a limegreen fleece and a red housecoatthat looked similar to the ones 

### that had been described bythe Rankins."27 He asked Terry's mother ifshe had seen 

### the jackets before and she said, "No, I've never seen those before."28 Taking the evidence in the lightmostfavorable to the State, there was sufficient evidencethat 

### Terry disposed of the Rankins' property by taking the jackets out of her car and placing them orarranging them in a box at the base of the stairs in her mother's house. 

### At oralargument, Terryasserted that when the legislature uses different words in 

### the same statute, we must presume it intends those words to havedifferentmeanings.29 She claims that interpreting "dispose ofas meaning "place" or "arrange" makes it identical to otheralternate definitions ofpossessing stolen property such as retaining, 

### possessing, and concealing. Butwe do not need to address arguments raisedforthe first time at oral argument.30 And even ifwe considerthis argument, Terrydoes not establish error. Whilesome overlap is presented in the otheralternative definitions of 

### possession, "dispose ofhas a nuanced meaning that isdifferentfrom the other 27RP(Mar. 26, 2013) at 119. 28 id at 122. 29 See Outsource Servs. Mqmt.. LLC v. Nooksack Bus. Corp., 172Wn. App. 799, 

### 818-19, 292 P.3d 147, review granted. 177 Wn.2d 1019 (2013). 

### 30Terry raised this argumentfor the first time at oral argument and cited no 

### authorityfor herclaim that alternative forms ofpossessing must have completely differentmeanings from one another. See RAP 12.1(a) ("the appellate courtwill decide a case only on the basis ofissues setforth by the parties in theirbriefs"); Statev. Johnson, 119Wn.2d 167, 170-71, 829 P.2d 1082 (1992) (issues raised forthe first time 

### at oral argument are notproperly before the court on appeal); State v.Younq. 89 Wn.2d 613, 625, 574 P.2d 1171 (1978) (courts may assume that where no authority is cited, counsel has found none after search).

10No. 70255-6-1/11 definitions; to arrange or place is notthe same as merely retaining, possessing or 

### concealing an object. Terry's attemptto avoid the first definition of"dispose ofto mean arrange or place is not persuasive. There was sufficientevidence she disposed ofthe stolen property. We affirm the trial court.

WE CONCUR: 

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