No. 51342-7-IThe Court of Appeals of Washington, Division One.
Filed: December 22, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-04873-7. Judgment or order under review. Date filed: 11/01/2002.
Counsel for Appellant(s), Nancy P Collins, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Gregory Charles Link, WA Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101-2402.
Counsel for Respondent(s), Deric Martin, King Co Pros Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.
PER CURIAM.
A jury found Oscar Quezada guilty of attempted indecent liberties. Quezada argues that the trial court failed to enter findings of fact following his suppression hearing, the State presented insufficient evidence establishing probable cause to arrest him, and the prosecutor’s closing argument improperly shifted the burden of proof. But the trial court’s oral findings were sufficient, and there was ample evidence establishing probable cause. Finally, because any purported error by the prosecution was harmless, we affirm.
I
According to witness testimony, a Hispanic man, later identified as Quezada, entered the women’s room of a Vietnamese restaurant with his pants and underwear pulled down to his knees. As he entered, P.B., the owner of the restaurant, was using the sink. She testified that after she told him it was the wrong bathroom, Quezada said something about `make love.’ P.B. then told D.V., a female employee using the bathroom, to lock the door to her stall. P.B. then ran to the second stall, locked it, and began banging on the wall for help. Quezada then attempted to enter the first stall by climbing under the divider. As he entered the stall, D.V. tried pulling her pants up. But as Quezada stood in the stall, he began pulling her pants down, and pushed her toward the corner of the bathroom stall. D.V. testified that he pushed her into the wall twice, while trying to pull her pants down. Apparently, while attempting to finish taking off his pants, Quezada caught them on his shoes. This afforded D.V. the opportunity to flee the stall and summon help. P.B.’s son entered the bathroom and told Quezada to leave. D.V. testified that she saw him leave the restaurant with his pants under his arm.
The arresting officer testified that when he drove up to the restaurant, one of the people standing in front pointed up the hill at Quezada, who was now about two and a half blocks from the restaurant, walking along the street. He was not wearing pants. As the officer’s vehicle approached, Quezada turned around and began running through a yard. A second officer responding to the call apprehended Quezada behind another house a short time later. Both officers testified that when they arrested Quezada, he was holding his pants.
Quezada presented a different account of what happened. He testified that he had eaten fried pork rinds the night before, and that he was experiencing severe stomach and abdominal pain. At the onset of the pain he took milk of magnesia. The next morning he began drinking Kahlua and milk to soothe his stomach. He later consumed several rum and cokes, and admitted that he became intoxicated. Quezada testified that while riding with his friend, he felt the sudden need to defecate, and asked him to stop at a gas station. The restroom was out of order, so they drove to the nearby Vietnamese restaurant to use the facilities there.
Quezada testified that by the time he entered the restaurant, he was nearly overcome by the need to defecate. He testified that he walked slowly to avoid an accident, and that as he opened the door to the bathroom, his pants were already pulled down. He explained at trial that `I didn’t care who was there, the president of Honduras or the president of whatever, I just wanted to take a dump. . . . I didn’t know there was a lady, or a man, or whatever. I just wanted to use the restroom.’
Quezada testified that as he entered the restroom, he tripped and fell. He denied that his underwear was around his knees. He also explained that after falling, he saw feet under the first stall, and that the woman in the stall began screaming. Quezda then testified that he began crawling out of the restroom. Quezada had no independent recollection of seeing the owner’s son, but he testified that `I must have said something because I wanted to use the restroom only.’ He then explained that after leaving the restaurant and walking up the hill, he defecated in bushes behind a house before the police apprehended him.
Before trial, Quezada challenged his arrest, arguing that the police did not have probable cause to arrest him. The trial court conducted a CrR 3.6 hearing to determine whether Quezada had been lawfully arrested, and a CrR 3.5 hearing to determine if Quezada understood the Miranda[1]
warning he received. The State did not introduce any evidence obtained following Quezada’s arrest, nor did the State offer any of Quezada’s post-arrest statements at trial.
II
We first address Quezada’s claim that the prosecutor made improper remarks in her closing that misstated the law and shifted the burden to the defense. Quezada contends that the prosecutor shifted the burden of proof to him by arguing at the end of her rebuttal that `reasonable doubt is not benefit of the doubt.’ But he did not object at trial.
Ordinarily, a defendant who fails to object to an improper remark waives the right to assert prosecutorial misconduct unless the remark was so `flagrant and ill intentioned’ that it caused enduring and resulting prejudice that a curative instruction could not have remedied.[2] And even if the prosecutor’s conduct was improper, the error is not prejudicial unless we determine that there is a substantial likelihood the misconduct affected the jury’s verdict.[3]
Although the prosecutor’s statement concerning the burden of proof was an incorrect characterization of the law, we do not believe it rose to the level of a constitutional error. And a curative instruction by the trial court would have corrected any potential juror misunderstanding.
Quezada next argues that the trial court’s failure to enter written findings of fact after its suppression hearing deprived him of his right to a meaningful appeal. Extremely tardy findings and conclusions were entered after Quezada filed his opening appellate brief. Quezada has not argued that the findings were tailored to meet his arguments on appeal, or that they do not faithfully reflect the court’s oral rulings. Therefore, we need not further consider this claim.
Finally, Quezada argues that there was insufficient evidence to establish probable cause. We evaluate the existence of probable cause on a case-by-case basis.[4] Probable cause exists if there are sufficient facts `to lead a reasonable person to conclude there is a probability the defendant is involved in criminal activity.’[5] Probable cause has also been defined as “a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.”[6]
The police were acting on a report from a named citizen informant that gave a particular description of the suspect, and his location. As the officers approached the restaurant, a witness pointed the suspect out to them. The person they apprehended was a Hispanic male wearing a black leather coat and no pants, matching the description given by the reporting witness. The arresting officer later confirmed this description when he interviewed the restaurant owner, her son, and the restaurant employee. The officers had obvious probable cause to arrest Quezada.[7]
Affirmed.
(1966).