INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. ALEXIS J. SCHLOTTMANN, Appellant. 

### No. 71661-1-1 ~ =g§ 

# DIVISIONONE ^ °'°--,- cn g^p UNPUBLISHED OPINION ^ 5%n>. 

## FILED: June 16,2014 £ II Trickey, J. — Alexis Schlottmann appeals the judgment and sentence 

### entered following her convictions arising from her participation in several residential burglaries. Schlottmann claims errors based on a partial jury, ineffective assistance of counsel, and prosecutorial misconduct. Finding no
error, we affirm.
FACTS 

### Emily McMason lived across from Marian Finely on a dead-end street.1 On the afternoon of November 18, 2011, McMason noticed an unfamiliar dark 

### green Mazda minivan pull into Finely's driveway.2 The vehicle parked on the driveway, and its driveremerged holding a piece ofpaper.3 McMason observed the driver as she walked around the house, examined the surroundings, and 

### peered into windows.4 When McMason saw the driver remove a crowbar from the vehicle, she called 911 to report this suspicious activity.5

11 ReportofProceedings (RP) (October 15, 2012, afternoon) at75. 21 RP at 75-76, 81. 31 RP at 77. 41 RP at 77-78. 51 RP at 79.No. 71661-1-1/2 McMason then noticed the passenger of the vehicle—later identified as Schlottmann—exit the minivan and, together with the driver, break into Finely's residence through the front door.6 After approximately 10 minutes, Schlottmann and the driver exited the residence.7 McMason noticed Schlottmann carrying a stack of whatappeared to be manila file folders.8 The driverwas hauling a large bag with items protruding from the inside.9 Schlottmann and the driver returned to the vehicle and departed from the scene.10 McMason relayed these observations to the 911 dispatcher as they occurred.11 Over the telephone, McMason provided a detailed description of the minivan, its license plate, and the driver and passenger.12 

### Law enforcementofficers subsequentlyarrived at McMason's residence.13 While theyinterviewed McMason, the Olympia Police Departmentstopped a dark 

### green Mazda with a license plate number identical to that which McMason had previously provided.14 The police stopped the minivan approximately three miles 

### from the Finely residence.15 The driver of the vehicle was identified as Darlene Lockard and the passengerwas Schlottmann.16 McMason thereafter identified both woman as the individuals she

61 RP at 79, 81-82. 7 1 RP at 83-84. 81 RP at 84. 91 RP at 84. 101 RP at 85. 11 1 RP at 80. 121 RP at 80-81. 131 RP at 87. 14 1 RP at 33-34, 91. 151 RP at 35-36. 161 RP at 35-36.No. 71661-1-1/3 witnessed burglarize Finely's residence.17 After a search warrant was obtained, Thurston County deputies searched the minivan and took an inventory of all of the items discovered inside.18 The deputies recovered 48 stolen items.19 Among them was a Savage .32 caliber pistol, a crowbar, a set of knives, a glass jar of coins, a piece ofpaper with the words "The Dynamic Duo" written on it, and a checkbook with checks containing the name "Japhet Bulkheading Incorporated, 

### Floyd or Grace Japhet."20 Finely identified 45 items stolen from her residence, including the pistol.21 The knives, glass jar, and checkbook did not belong to Finely.22 The Thurston County Sherriffs office soon determined that Schlottmann 

### and Lockard were the perpetrators responsiblefor two otherburglaries that took 

### place near Finely's residence. On the same day as the Finely burglary, Schlottmann and Lockard also burglarized GuyWinkleman's residence, located 

### approximately four miles away from Finely.23 Approximately $7,000 worth of property had been stolen.24 On November 17, 2011, Lockard and Schlottmann 

### burglarized the residence of Donald and Lisa Japhet.25 Lockard and Schlottmann stole several items, including the checkbook for Japhet

17 1 RP at 38, 92. 181 RPat41. 191 RP at 42. 201 RP at 41, 46, 48, 54. 21 1 RP at 43-46; 2 RP (October 16, 2012) at 170-71. 221 RP at 48, 54. 23 2 RP at 241, 245. 24 3 RP (October 17, 18, 19, 30, 2012) at 334. 25 2 RP at 197.No. 71661-1-1/4 Bulkheading, a computer, a helmet camera, and some jewelry.26 The police determined that a crowbar was used to break into the residence.27 The State charged Schlottmann, by second amended information, with first degree burglary while armed with a firearm (Count I); theft of a firearm (Count II); second degree unlawful possession of a firearm (Count III); second degree theft (Counts IV, VII, and XI); third degree malicious mischief (CountV); first degree burglary (Count VI); second degree malicious mischief (Counts VIII and X); residential burglary (Count IX); and second degree possession of stolen property (Counts XII and XIII).28 Counts I, II, IV, and V were for crimes committed against the Finelyresidence. Schlottmann pleaded notguilty to these charges.29 A jury trial was held on October 15 to October 19, 2012. The State 

### presented the testimony of numerous witnesses, including McMason, Finely, Winkelman, Donald and Lisa Japhet, and several law enforcement officers involved in the investigations.30 Following trial, the jury convicted Schlottmann of first degree burglary 

### (Count I); theft of a firearm (Count II); theftin the second degree (CountsIV, VII, and XI); third degree malicious mischief (Count V); residential burglary as a lesser included charge (Count VI); malicious mischief in the second degree (Counts VIII and X); residential burglary (Count IX); and possession of stolen

26 2 RP at 200-202 272 RP at 236-37. 28 Clerk's Papers (CP) at 34-37; 4 RP at 4-7; 3 RP at 316. 29 3 RP at 316-17. 301 RPat5, 32, 68, 72; 2 RP at 116, 151, 193, 209, 233; 3 RP at 295, 307, 328.No. 71661-1-1/5 propertyin the second degree (Counts XII and XIII).31 The trial court imposed a sentence of 96 monthsfollowed by 18months ofcommunity custody.32 Schlottmann appeals.
ANALYSIS Impartial Jury Claim Schlottmann first contends that the trial court violated her right to a fair and impartial jury when, after voir dire, it denied her motion to dismiss a juror. We disagree. The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the righttotrial by an 

### impartialjury. State v. Latham. 100Wn.2d 59,62-63, 667 P.2d 56 (1983). RCW 2.36.110 and CrR 6.5 also protect the right to an impartial jury. While RCW 

### 2.36.110 "provides the groundsfor which the court may dismiss ajuror," CrR 6.5 sets forth the procedures under which an excused juror is replaced. State v. Depaz. 165 Wn.2d 842, 852, 204 P.3d 217 (2009); see also State v. Rafav, 168 

### Wn. App. 734, 821, 285P.3d 83 (2012) ("RCW 2.36.110 governs theremoval of jurors."). PursuanttoRCW 2.36.110, ajudge has a duty "to excusefrom further 

### jury service anyjuror, who in theopinion of thejudge, has manifested unfitness
as ajurorby reason ofbias, prejudice,

... orby reason ofconduct orpractices incompatible with proper and efficientjury service." CrR 6.5 states, "If at any time before submission of the case to the jury a juror is found unable to perform the duties the court shall order the juror discharged." These provisions place the

31 CPat117. 32CP at 122.No. 71661-1-1/6 trial court under a continuous obligation to excuse a juror who is unfitand unable to perform the duties of a juror. State v. Jorden. 103 Wn. App. 221, 226-27, 11 P.3d 866 (2000). The trial court's ability to observe a juror puts the trial court in the best position to determine whether the juror can be fair and impartial. State v. Rupe, 108 Wn.2d 734, 749, 743 P.2d 210 (1987). Accordingly, we review for abuse of discretion the trial court's decision to remove a juror. Rafav. 168 Wn. App. at 821. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Depaz, 165 Wn.2d at 858. At the inception of voir dire, the trial court read each of the charges to the venire.33 The trial court noted the date on which each charged crime took 

### place_November 17 or 18, 2011.34 The court then instructed the prospective 

### jurors: "You must notwithhold information in order to be seated on thisparticular jury. You should be straightforward in your answers and notjust answerin a way 

### thatyou hopethelawyers orthecourtmighthope orexpectyou toanswer."35 During voir dire, the trial court asked the prospectivejurors: "Have any of you personally had an experience that is similarto the type ofincident or events 

### that were described to you? About what thiscase is about."36 At this time, the venire had only been made aware of the State's charges against Schlottmann and the dates the crimes allegedly took place. After a number of potential jurors raised their hands, the trial court added, "[Wje'rejust trying to determine ifit's too
33 4 RP (October 15, 2012, morning) at 4-7. 344 RP at 4-7. 354 RP at 9. 364 RP at 19.No. 71661-1-1/7 close to something that maybe that you have some personal experience or
someone in yourfamily close toyou."37 The court proceeded to inquire further of 

### thosejurors who raised theirhands.38 JurorNo. 1did not raisehis hand.39
Defense counsel later addressed the venire: What [the trial court] wanted to know is specifically if these 

### type of instances are either so fresh in yourrecollection orso fresh or that made such an impact on you that itwould be -- interferewith 

### your ability to listen to the evidence, interfere with your ability to 

### giveeachside, boththeprosecutorand thestate, afairtrial.[40] After the jury was impaneled, trial counsel made opening arguments. 

### During the State'sopening argument, theprosecutorprovided more details to the 

### jury about the case.41 He reiterated that the case began in November, and specified the neighborhoods and streets in which the crimes were alleged to have occurred.42 

### At the beginning oftrial the next day, before the witnesses were called, Juror No. 1 brought to thetrial court's attention that his residence had been the 

### subject of an attempted burglary.43 He informed the court that he lived near 

### Finely's residence and that on November 10, 2011, his door had been damaged 

### by what he believed to be a crowbar.44 The prosecutor and defense counsel 

### were given the opportunity to question the juror about this incident.45 The

374 RP at 19. 384 RP at 19-22. 394 RP at 19. 404 RP at 49-50. 41 4 RP at 90-97. 42 4 RP at 90-91, 93-94. 43 2 RP at 109. 44 2 RP at 109-12. 45 2 RP at 109-11.No. 71661-1-1/8 prosecutor asked the jurorwhether he "could set that aside and just decide this

case based on the facts that are presented to [him] in court."46 The juror answered affirmatively.47 Defense counsel moved to excuse the juror.48 Defense counsel argued that the similarities between the two cases were substantial and that had he been aware of the juror's experience, he would have made a forcause or peremptory 

### challenge.49 The trial court denied the motion, concluding that no sufficient 

### showing had been made to excuse thejuror.50 Thecourt reasoned that"nothing that [Juror No. 1] said . . . rises to the level ofthe other peoplewho were excused forcause who had similarexperiences."51 The trialcourt did not abuse its broad discretion by denying Schlottmann's motion to excuse Juror No. 1. The mere fact that Juror No. 1 made mention of 

### the attempted burglary at the start of the second day of trial bolstered his credibility and strongly suggested that hecould serve as afairjuror. 

### Moreover, during voir dire, the jury venire was notoffered any specific 

### information regarding the charged crimes. Neither counsel nor the trial court informed the venire of the location in which the charged crimes took place. The 

### parties also did not mention that the perpetrators employed a crowbar tobreak into the residences. The only knowledge the venire had about the case was the 

### charged crimes and the alleged dates of thosecrimes. Then, afterthejury was

46 2 RP at 111. 472 RP at 111. 482 RP at 113. 492 RP at 113-14. 502RPat115. 51 2 RP at 115.
8No. 71661-1-1/9 impaneled, the prosecutor offered more information about the crimes, including the location in which one of the burglaries took place. It is reasonable to infer that Juror No. 1 recognized the similarities between the charged crimes and the attempted burglary of his residence once the prosecutor provided these details during opening arguments. Furthermore, upon inquiry, Juror No. 1 expressed his beliefthat he could set his experience aside and decide the case based upon the evidence produced at trial. The trial court is in the best position to evaluate the juror's candor and impartiality. State v. Elmore. 155 Wn.2d 758, 769 n.3, 123 P.3d 72 (2005). We accept the trial court's discretion in determining that Juror No. 1 was not unfit to

serve. Schlottmann was not convicted by an unfair or partialjury.
Ineffective Assistance of Counsel Claim Schlottmann next contends that she was denied effective assistance of counsel because defense counsel conceded guilt to several criminal counts. We disagree. An accused's right to effective assistance of counsel derives from the Sixth Amendment to the United States Constitution and article I, section 22 ofthe Washington State Constitution. State v. Grier. 171 Wn.2d 17, 32, 246 P.3d 1260 (2011) (citing Strickland v. Washington. 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas. 109 Wn.2d 222, 229, 743 P.2d 816 (1987)). To prevail on a claim of ineffective assistance of counsel, Schlottmann must prove deficient performance and resulting prejudice. State v. McFarland.No. 71661-1-1/10 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Schlottmann bears the burden of overcoming "'a strong presumption that counsel's performance was reasonable.'" Grier. 171 Wn.2d at 33 (quoting State v. Kvllo. 166 Wn.2d 856, 862, 215 P.3d 177 (2009)). Deficient performance exists where defense counsel's representation "fell below an objective standard of reasonableness based on consideration of all the circumstances." McFarland. 127 Wn.2d at 334-
35. If defense counsel's performance can be characterized as legitimate trial strategy or tactics, performance is notdeficient. Grier. 171 Wn.2d at 33. But "a criminal defendant can 'rebut the presumption of reasonable performance by demonstrating that 'there is no conceivable legitimate tactic explaining counsel's 

### performance.'" Grier. 171 Wn.2d at 33 (quoting State v. Reichenbach. 153 Wn.2d 126, 130, 101 P.3d 80 (2004); State v. Aho. 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999)). Schlottmann alleges that during opening arguments, defense counsel 

### admitted her guilt to all of the charges involving the Finely residence, including 

### first degree burglary. Schlottmann ismistaken. Therecord reflects that defense counsel admitted to a lesser included crime of residential burglary.52 See RCW

52 To convict Schlottmann of Count I, firstdegree robbery, the jury was instructed to find the following relevant elements beyond a reasonable doubt: (1) That on or aboutNovember 18, 2011, the defendant or an accomplice, entered or remained unlawfully in a building; (2) That the entering or remaining was with intent to commit a crime against a person or property therein; (3) Thatin so entering orwhile in the building, towit: residence at Marian Finley [sic] or in immediate flight from the building the defendant or an accomplice in the crimecharged was armed with a deadly weapon.
10No. 71661-1-1/11 9A.56.040; 9A.52.025. Defense counsel also admitted to second, degree theft and third degree malicious mischief. The following excerptfrom opening arguments is illustrative: Butwe'll tell you right up front they will be able to prove some of 

### these charges, and some of the charges involving Ms. Finely's home. Yes, Ms. McMason was being a good neighbor. Ms. McMason, Ithink the evidence will even show, she brought out the binoculars so she could get the good information such as license 

### plate number to the van and clothing descriptions, yes. And regrettably, Ms. Schlottmann used somevery poorjudgment, that's in fact criminal judgment, and that she went into a home where she should not have been, where she did not have permission to be inside, and she wentwithDarlene Lockard.



### . . .And yes, while inside Ms. Finely's house, many items were taken, but Ms. Schlottmann didn't have a right to, and we'll be up frontaboutthat.153] 

### At closing argument, defense counsel again acknowledged, "Ms. Lockard and Ms. Schlottmann did in fact go into Ms. Finely's house illegally without 

### permission and take items from the house."54 Defense counsel further stated, "Certainly she [was an accomplice] in the burglary of Ms. Finely's home. 

### Certainlyshedidthatwiththe stealing ofmanyexpensiveitems."55 Defense counsel also conceded Schlottmann's guilt to malicious mischief

CP at 76. To convict Schlottmann of residential burglary as a lesser degree of first degree 

### burglary, the jury was instructed to find the following relevant elements beyond a reasonable doubt: 

### (1) That on or about November 18, 2011, the defendant, or an 

### accomplice, entered or remained unlawfully in a dwelling, to wit: residence ofMarian Finley [sic]; 

### (2) That the entering or remaining was with intent to commit a crime against a person orpropertytherein. CP at 78. 53 4 RP at 97-99 (emphasis added). 543 RP at 408. 553 RP at 409-10.
11No. 71661-1-1/12 in the third degree, for damaging Finely's door.56 

### Accordingly, in total, trial counsel conceded guilt to three offenses: third 

### degreemalicious mischief, second degreetheft, andresidential burglary, a lesser included offense to first degree burglary. 

### Notwithstanding these concessions, defense counsel vigorously defended Schlottmann on the remaining counts, including the crime offirst degree robbery whilearmed with a firearm. Defense counsel denied that Schlottmann eithertook 

### a weapon orknew that a weapon had been stolen and argued that, therefore, Schlottmann could notbefound guilty as an accompliceto the charges oftheftof


### afirearm orfirst degree burglary.57 Counsel expressly indicated that "given the 

### absence ofproof, itwould beinappropriate to find herguilty oftheft ofafirearm 

### and inappropriateto find herguilty ofthe more serious offense ofburglary in the 

### first degree."58 Defense counsel further noted, "[The] burglary was aresidential 

### burglary becausethe [S]tate has notproven beyond areasonable doubtthatthe weapon used there was being used as defined by the definition as a deadly weapon."59 Defensecounsel additionallydenied allthe remaining counts related to the Japhet andWinkelman residences.60 

### Furthermore, contrary to Schlottmann's contention, it is evident that defense counsel's concessions were a trial tactic aimed at enhancing 

### Schlottmann's credibility in ordertoavoid convictions on theremaining charges,

56 3 RP at 410-11,413-14. 57 3 RP at 408-13. 58 3 RP at 410. 593 RP at 413. 603 RP at 414-25.
12No. 71661-1-1/13 particularly first degree burglary while armed with a firearm. In light of the overwhelming evidence, this strategywas reasonable. 

### Conceding guilt on a particular count can be a soundtrial tacticwhen the evidence on that count is overwhelming. State v. Silva. 106 Wn. App. 586, 596, 24 P.3d 477, review denied. 145Wn.2d 1012(2001). This approach maywin the 

### jury's confidence and preserve thedefendant's credibility when a more serious charge is at stake. State v. Hermann, 138 Wn. App. 596, 605, 158 P.3d 96 

### (2007); Silva. 106 Wn. App. at 597-98. Defense counsel is not required to consultwith the client beforemaking this strategicmove. Silva. 106Wn. App. at 

### 596 (citing Underwood v. Clark. 939 F.2d473, 474 (7th Cir.1991)). Here, Schlottmann makes no effort to contend that the evidence of her 

### guilt asto the conceded charges was not overwhelming. Nor could she do so convincingly. Attrial, the State presented the following evidence: an eyewitness who observed the burglary, provided the police a detailed description of the 

### suspects andthevehicle, and lateridentifiedthe suspects shortlyafterthe crime; evidence that the vehicle and physical characteristics of suspects matched the 

### eyewitness's description; evidence thatthe items recovered in the minivan were identified as belonging to Finely; evidence that the minivan identified by the 

### eyewitness was stopped in close proximity to Finely's residence. The State's evidence pertaining to the crimes against the Finely residence was immense. Defense counsel's decision to admit to these crimes was a strategic one 

### intended to earn thejury's favor and preserve Schlottmann's credibility asto the remaining charges. Accordingly, Schlottmann's claimfails.

13No. 71661-1-1/14 Prosecutorial Misconduct Claim Schlottmann contends, finally, that three of the prosecutor's remarks made during closing argument deprived her of a fairtrial. Again, we disagree. 

### A prosecutor owes a defendant a duty to ensure the right to a fair trial is
not violated. State v. Monday. 171 Wn.2d 667, 676, 257 P.3d 551 (2011). A defendant claiming prosecutorial misconductbears the burden of demonstrating 

### that the challenged conduct was both improper and resulted in prejudice. State

v. Cheatam. 150 Wn.2d 626, 652, 81 P.3d 830 (2003). We review alleged misconduct "within the context of the prosecutor's entire argument, the issues in 

### the case, the evidence discussed in the argument, and the jury instructions." State v. Dhaliwal. 150 Wn.2d 559, 578, 79 P.3d 432 (2003). Once a defendant establishes thatthe prosecutor's conductwas improper,


### a reviewing court determines whether the defendant was prejudiced. State v. Emery. 174Wn.2d 741, 760, 278 P.3d 653 (2012). Ifthe defendant objected at 

### trial, on appeal he orshe"mustshowthattheprosecutor's misconductresulted in 

### prejudice that had asubstantial likelihood ofaffecting thejury's verdict." Emery,
174Wn.2dat760. 

### Following closing arguments, defense counsel moved for a mistrial based 

### upon the prosecutor's commentsthatshe now challenges on appeal.61 Thetrial court denied the motion.62 "The decision to deny a request for mistrial based 

### upon alleged prosecutorial misconduct lies within the sound discretion ofthetrial

61 3 RP at 439. 623 RP at 442.
14No. 71661-1-1/15 court, and it will not be disturbed absent an abuse of discretion." State v. Russell. 125 Wn.2d 24, 86, 882 P.2d 747 (1994). 

### At closing argument, while reviewing the evidence surrounding the Finely burglary, the prosecutor made the following comment: They took similar items. They wantjewelry, electronics, and they wanted that checkbook. Why do people burglarize houses? I mean, this probably isn't too hard of a concept. They want drugs and they want money. And money equals drugs or drugs equals money, one ofthe two. And they wantthings thatthey can sell quickly-.[63] Defense counsel objected to this comment, arguing that it was 

### inflammatory.64 Thetrial courtheld a sidebar, afterwhich thecourtinstructed the prosecutorto "[g]o ahead."65 Schlottmann contends that by making this remark, the prosecutor 

### improperly referenced evidence outside of the record and prejudicially implied that Schlottmann burglarized homes in order topurchase drugs. 

### A prosecutor is allowed wide latitude in closing arguments to draw reasonable inferences from the facts inevidence and to express such inferences 

### to the jury. State v. Gregory. 158 Wn.2d 759, 860, 147 P.2d 1201 (2006); Dhaliwal. 150 Wn.2d at 577. But a prosecutor is not permitted to make 

### prejudicial statementsthatarenotsupported bythe record. Statev. Ramos. 164 Wn. App. 327, 341, 263 P.3d 1268 (2011). Similarly, "[m]ere appeals to thejury's passion orprejudice are improper." Gregory. 158Wn.2d at808. 

### Here, the prosecutor improperly appealed to the jury's passion and
63 3 RP at 396 (emphasis added). 643 RP at 396. 653 RP at 396.
15No. 71661-1-1/16 prejudice. The prosecutor's remark was designed to portray Schlottmann as a 

### drug user oraddict whose motive in the burglaries was to procure drugs. There was no evidence presented to the jury that established such a motive. This comment exceeded the wide latitude granted to prosecutors in closing argument. Nevertheless, Schlottmann does not demonstrate that the prosecutor's 

### comment substantially affected thejury verdict. The remark was made in the contextof a prolonged trial as well as a lengthy closing argument. A sidebar was 

### immediately held following this comment, after which the prosecutor did not mention the alleged drug related motive again. Additionally, the jury was 

### instructed to"decidethefacts inthis case basedupon theevidence presented."66 

### Thejury was also directed "thatthe lawyers' statements are not evidence. The evidence is the testimony and the exhibits."67 We presume thatjurors follow 

### instructionsto disregard improperevidence. Statev. Russell. 125Wn.2d 24, 84, 882 P.2d 747 (1994). 

### Schlottmann has not shown prejudice as a result of the prosecutor's 

### improper comment. Accordingly, the trial court did not err in denying Schlottmann's motion for mistrial withrespectto this comment. 

### Schlottmann next contends that the prosecutorcommitted misconduct by 

### making thefollowing remarks during closing argument: "Again, Ms. Lockard and Schlottmann aretwo burglars and thieves with no conscience."68 In rebuttal, the

66 CP at 55. 67CP at 56. 683 RP at 401.
16No. 71661-1-1/17 

### prosecutor stated that "[Schlottmann] wanted to victimize other people."69 Schlottmann did not object tothese remarks.70 Schlottmann contends that the prosecutor injected his own opinion as to Schlottmann's motives for committing the crimes, which were outside of the record. She is incorrect. These statements were properinferences based on the evidence produced at trial. 

### Even assuming that the comments were improper, Schlottmann fails to 

### establish prejudice. She makes no effort to show that there was a substantial likelihood that the prosecutor's commentsaffected thejury's verdict. Therefore,

we find no error as to these comments. 

### Schlottmann next challenges the following comments made by the prosecutor: Now let's talk about circumstantial evidence. The best evidence that we have is that we already know what they are. They're 

### burglars and thieves. How do we know that? Ms. McMason. 

### Eyewitness. Sawthem do it. [Defensecounsel] sayswell

-- hetold you at the beginning of the case, well, she doesn't contest that. Really? If she's not contesting it, why are we here talking about those particular charges? She neverpled guilty to those charges. You still have tofind herguilty of those charges, don't you? That's 

### one ofyourjobs. It's what the court has instructed you todo. She 

### didn'ttake responsibilityfor it. She'sgoing totrytonow--t71i After a sidebar was held, defense counsel noted his objection for the 

### record.72 In his rebuttal argument, the prosecutor stated: "Again, Ms. Schlottmann surrounds herselfwith these things, but she wants to deny all of

693 RP at 432. 70 See 3 RP at 401, 432. 71 3 RP at 400. 723 RP at 400-01.
17No. 71661-1-1/18 them. As Isaid, she's never taken responsibilityfor any ofit."73 Defense counsel 

### objected, and the court ordered the prosecutor to proceed.74 The prosecutor resumed, "She's never taken responsibility for any of these crimes, but for 

### [defense counsel] doing thatfor her now. But again, she wants to limit what her responsibility is, for obviousreasons."75 Schlottmann argues that the prosecutor improperly commented on her 

### constitutional right to plead not guilty, as well as her right against selfincrimination and right to present a defense. 

### "[T]he State can take no action which will unnecessarily 'chill' orpenalize the assertion of a constitutional right and the State may not draw adverse inferences from the exercise of a constitutional right." Gregory, 158 Wn.2d at 

### 806 (quoting State v. Rupe. 101 Wn.2d 664, 705, 683 P.2d 571 (1984)). 

### Specifically, the State may not invite thejury to draw a negative inferencefrom the defendant's exercise of a constitutional right. Gregory. 158 Wn.2d at 806 

### (citing State v. Jones. 71 Wn. App. 798, 811-12, 863 P.2d 85 (1993)). But "not all argumentstouching upon adefendant's constitutional rights are impermissible comments on the exercise of those rights." Gregory. 158Wn.2d at 806. The 

### question is whether the prosecutor "manifestly intended the remarks to be a comment on that right." State v. Crane. 116 Wn.2d 315, 331, 804 P.2d 10 (1991).

### Here, viewing these statements in the context of the entire record, the

73 3 RP at 433. 74 3 RP at 433. 753 RP at 433.
18No. 71661-1-1/19 prosecutor's remarks were not intended to comment on Schlottmann's constitutional rights. Indeed, the comments were invited by defense counsel's 

### opening argument. As previously discussed, defense counsel conceded guilt to the lesser offense of residential burglary, and admitted that the State would be 

### able to prove many of the charges. The prosecutor's commentsdid not expand 

### beyond the scope of defensecounsel's statements. See Statev. Dennison. 72 Wn.2d 842, 849, 435 P.2d 526 (1967) (A prosecutor's remarks do not constitute 

### misconduct if they are invited by defense counsel unless they "'go beyond a 

### pertinent reply.'") (quoting State v. LaPorte. 58 Wn.2d 816, 822, 365 P.2d 24 (1961)). 

### Schlottmann's prosecutorial misconduct claims are not persuasive. The trial court did notabuse its discretion in denying her motion formistrial.
Affirmed. 

# J /: c^e-(yA

WE CONCUR: 

# 4

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