STATE v. GREER, 28652-1-II (Wash.App. 11-13-2003)

No. 28652-1-IIThe Court of Appeals of Washington, Division Two.
Filed: November 13, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 01-1-04565-4 Judgment or order under review Date filed: 04/05/2002

Counsel for Appellant(s), Sheri Lynn Arnold, Attorney at Law, P.O. Box 7718, Tacoma, WA 98406-0718.

Counsel for Respondent(s), Cort O’Connor, Pierce Co Pros Office, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.

MORGAN, P.J.

Jay Oliver Greer appeals his convictions of first degree burglary while armed with a deadly weapon, first degree rape while armed with a deadly weapon, and first degree robbery while armed with a deadly weapon. He argues that the evidence was insufficient to support his convictions and that the prosecuting attorney committed misconduct during closing argument. We affirm.

During the evening of August 31, 2001, Heidi Wilhelm walked from her apartment to a nearby gas station. As she was walking home, she was offered a ride by acquaintance named Desiree. Greer was a passenger in Desiree’s car.

When Desiree dropped Wilhelm at her apartment, Greer asked if he could use the bathroom. Wilhelm agreed and allowed him to enter. He used the bathroom, drank some water, and walked to the front door as if to leave. Instead of leaving, however, he stood against the door and asked Wilhelm to have sex with him.

Wilhelm refused and tried to escape. Greer grabbed her and punched her in the eye. As Wilhelm fell to the ground, she saw that Greer had a knife. She stopped fighting, and Greer raped her vaginally and anally.

When Greer finished, he asked if Wilhelm had any money. Wilhelm stated that she did not and showed him her wallet. He took her bus pass and DSHS benefits card.

When Greer went into another room to look for his shoes, Wilhelm ran for help. The police responded and found Greer in an alley behind Wilhelm’s apartment. He had a silver pocket knife and Wilhelm’s bus pass in his pants pockets. Back in Wilhelm’s apartment, the officers found a glass pipe and a lighter on the floor.

The State charged Greer with first degree burglary, first degree rape, and first degree robbery. As part of each charge, it alleged a deadly weapon enhancement.

At trial, Wilhelm testified to the facts cited above. She added that some items had fallen from Greer’s coat during their struggle. She had thought he was going to kill her when she saw the knife in his hand, even though the knife was not open and he did not verbally threaten to use it.

Police Sergeant Frank Krause testified that Greer told him that Wilhelm invited him up to her apartment to smoke cocaine and that the two had consensual intercourse. When asked why Wilhelm would be upset with him if the acts were consensual, Greer said he had reneged on a promise to pay her for anal sex.

Greer testified that Wilhelm had invited him to her apartment so they could smoke cocaine and have sex. He cut the cocaine with a knife from the kitchen drawer, and Wilhelm let him keep the knife. After they had sex, he left the apartment without his shoes. The jury found him guilty as charged, and the trial court imposed a standard range sentence.

I.
The first issue is whether the evidence is sufficient to support a conviction for first degree robbery. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.[1] `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’[2] This court must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.[3] The trial court instructed that the jury had to find the following elements in order to convict Greer of first degree robbery:

(1) That on or about the 1st day of September, 2001, the defendant unlawfully took personal property, not belonging to the defendant, from the person or in the presence of another; (2) That the defendant intended to commit theft of the property; (3) That the taking was against the person’s will by the defendant’s use or threatened use of immediate force, violence or fear of injury to that person; (4) That the force or fear was used by the defendant to obtain or retain possession of the property or to prevent or overcome resistance to the taking; (5) That in the commission of these acts or in immediate flight therefrom the defendant was armed with a deadly weapon; and (6) That the acts occurred in the State of Washington.[4]

Greer contends that the evidence was insufficient to prove that he was `armed’ with a deadly weapon either during the robbery or in immediate flight therefrom. A person is armed with a deadly weapon if it is readily available for use for either offensive or defensive purposes.[5] A gun is readily available for use if it is under the car seat and within reach of the defendant;[6] if it is on top of the refrigerator and can be reached from where the defendant is sitting;[7] or if it is in the defendant’s shirt pocket during the commission of a burglary.[8]

Here, the evidence showed that Greer displayed a knife while raping Wilhelm. He took her bus pass and DSHS card immediately thereafter. When the police arrested him a short while later, he still had the knife in his pocket. This evidence is sufficient for a jury to find that Greer was armed with a deadly weapon both during the robbery and in immediate flight therefrom.

In a pro se brief, Greer argues that the evidence was insufficient to show that the knife was a deadly weapon for purposes of committing first degree burglary,[9] first degree rape,[10] or first degree robbery. A weapon can be deadly per se (i.e., an explosive or a firearm) or deadly because it is readily capable of causing death or substantial bodily harm under the circumstances in which it is used, attempted to be used, or threatened to be used.[11] A person must manifest his or her willingness to use a knife before the knife will be found to be a deadly weapon.[12] This requirement was met where the defendant had a switchblade knife in his pocket during a burglary; where after he was caught he moved his hand toward his coat pocket and fumbled with something; and where police later found a knife with the safety off and the switchblade partly open.[13]

The evidence here shows that Greer displayed a knife in the course of committing burglary and rape and that, when he committed robbery directly thereafter, he still possessed the knife. This evidence was sufficient to establish that Greer was armed with a deadly weapon during all three crimes.

II.
Greer also argues in his pro se brief that the prosecuting attorney committed misconduct during closing argument. Defense counsel made no objection to the remarks that Greer now considers reversible error.

Where prosecutorial misconduct is claimed, the defense bears the burden of establishing the impropriety of the prosecuting attorney’s comments as well as their prejudicial effect.[14] Absent a proper objection, a request for a curative instruction, or a motion for mistrial, the issue of misconduct is waived unless the misconduct was so flagrant or ill intentioned that the prejudice could not have been cured by an instruction.[15] A prosecuting attorney’s allegedly improper remarks must be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.[16] A failure to object when the prosecutor made the comments strongly suggests that the conduct complained of did not appear critically prejudicial to the defendant in the context of the trial.[17]

Greer first objects to the State’s comments that `Heidi told you that when she was being raped, the defendant held a knife to her throat’ and ‘[i]f someone is holding a knife, even if it’s unfolded, to your throat, you know the meaning, especially in a situation where you are being raped or where you’ve just been assaulted.’[18]

A prosecutor has no right to mislead the jury in recounting testimony.[19] Although Wilhelm testified that Greer put his hands up to her mouth and neck while the two struggled, she never said that he had the knife in his hands at the time. Accordingly, the prosecuting attorney misstated the record when he said that Greer held a knife to Wilhelm’s throat.

The evidence does not show, however, that the prosecutor’s remarks were ill-intentioned or so flagrant that any prejudice therefrom could not have been cured by an instruction to disregard them. Moreover, the trial court instructed the jury to disregard any statement or argument not supported by the evidence, and jurors are presumed to follow the court’s instructions.[20]

Greer next objects to the prosecutor’s statements that ‘[w]e know from the defendant’s own testimony that he was armed with a deadly weapon, that he had it on his person, that it is readily accessible’ and `while he did these things, he was armed with a knife, a deadly weapon[.]’[21]
These statements were permissible inferences from the evidence and were not improper.[22]

Greer next contends that the prosecutor engaged in misconduct when he argued that Greer had disposed of his shoes and jacket after he left Wilhelm’s apartment. The prosecutor stated:

And where did he go? He went from the apartment back to the alley. He didn’t have time to stop and put on his shoes and put on his jacket. He had to get rid of those items. . . . He’s able to ditch incriminating evidence somewhere along the way when he gets rid of the cocaine. . . . He had plenty of opportunity to get rid of those items.[23]

When the prosecutor made these statements, he was challenging the defense theory that Greer had sold his shoes for drug money and left his jacket at his sister’s house before meeting Wilhelm. (The State’s theory was that the drug paraphernalia on Wilhelm’s floor had come from Greer’s jacket.) It is not misconduct for a prosecuting attorney to argue that the evidence does not support the defense theory.[24] We see no reversible error in any of the comments of which Greer now complains.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

BRIDGEWATER and HOUGHTON, JJ., concur.