STATE v. MOTT, 138 Wn. App. 1025 (2007)

No. 57678-0-I.The Court of Appeals of Washington, Division One.
April 30, 2007.

Appeal from a judgment of the Superior Court for Snohomish County, No. 05-1-01675-7, Ronald L. Castleberry, J., entered January 25, 2006.

Affirmed by unpublished per curiam opinion.

PER CURIAM.

Demetri Mott appeals from the judgment entered on a jury’s verdict finding him guilty of attempted rape in the first degree. Finding no error, we affirm.

The facts of this case are known to the parties and need not be set forth herein.

Mott’s first claim is that the trial court erred by not instructing the jury that the State has the burden of disproving the existence of consent beyond a reasonable doubt. However, our Supreme Court has repeatedly ruled that consent is an affirmative defense, for which the burden of proof, by a preponderance of the evidence, lies with the defendant. State v. Gregory, 158 Wn.2d 759, 801-04, 147 P.3d 1201 (2006); State v. Camara, 113 Wn.2d 631, 781 P.2d 483 (1989). There was no error.[1]

Mott’s next claim is that he was denied a fair trial as a result of prosecutorial misconduct. However, Mott raised no objection at trial to the challenged arguments, and “failure to object to an improper remark constitutes a waiver of error unless the remark is so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.” State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).

Prosecutors have a duty to seek verdicts free from appeals to passion or prejudice. State v. Perez-Mejia, 134 Wn. App. 907, 915-16, 143 P.3d 838 (2006). However, in closing argument, a prosecuting attorney has wide latitude to draw and express reasonable inferences from the evidence. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577 (1991). Here, the prosecutor, in arguing that Mott attempted to commit the charged crime, stated: “[T]he defendant took a substantial step towards committing rape in the first degree. He made the old college try. He made an effort to do it.” Mott argues that this remark relieved the State of its burden to prove that Mott’s actions constituted a substantial step towards raping the victim. However, the trial court’s instructions to the jury defined a “substantial step” as “conduct which strongly indicates a criminal purpose and which is more than mere preparation.” The prosecutor’s remark was proper argument. Even if it were not, the remark was not so flagrant and ill-intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury. There was no error.

Prior convictions less than 10 years old involving dishonesty or false statement are admissible under ER 609(a)(2). State v. Russell, 104 Wn. App. 422, 434, 16 P.3d 664 (2001). Mott’s prior conviction of possession of stolen property in the second degree was, thus, properly admitted. The prosecutor made the following argument:

I would ask you that when you review what [the defendant] said this morning and you compare that to the evidence in this case, your own experience and his own matter of testifying, what he was trying to tell you, quire frankly, what he was trying to sell you, come on. Use your brains.
This guy is the one person in this outfit that’s got the felony conviction. This is the one guy who admitted lying repeatedly about key bits of evidence, who when the police initially arrived, knew why they were there, but would not give them any more information than he already thought they had.

The prosecutor’s mention of Mott’s prior conviction was in the context of an argument directly referencing Mott’s credibility. There was no error.

Mott’s next claim is that the collection of a biological sample for DNA analysis without the authority of a warrant violated his rights under both the federal and state constitutions. Mott’s Fourth Amendment claim has previously been decided adversely to him by this court. State v. Surge, 122 Wn. App. 448, 94 P.3d 345
(2004); review granted, 153 Wn.2d 1008 (2005). Mott’s article I, section 7 claim is precluded by his failure to engage in the necessary analysis. State v. Nguyen, 134 Wn. App. 863, 871, 142 P.3d 1117 (2006). There was no error.

In his pro se Statement of Additional Grounds for Review, Mott raises two issues. First, he claims that the complaining witness bore false testimony against him. However, resolving questions with regard to the credibility of a witness is a task assigned solely to the jury. State v. Varga, 151 Wn.2d 179, 201, 86 P.3d 139 (2004); State v. Dietrich, 75 Wn.2d 676, 677-78, 453 P.2d 654 (1969). Next, Mott claims that only 10, rather than 12, jurors voted to find him guilty. The record on appeal does not factually support this allegation. Thus, neither claim has merit.

Affirmed.

FOR THE COURT: