THE STATE OF WASHINGTON, Respondent, v. LAWRENCE WINGARD, Appellant.

No. 60671-9-I.The Court of Appeals of Washington, Division One.
January 20, 2009.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for King County, No. 07-1-02388-3, Richard A. Jones, J., entered September 28, 2007.

Affirmed
by unpublished per curiam opinion.

UNPUBLISHED OPINION
PER CURIAM.

When a defendant urges reversal on appeal based upon prosecutorial misconduct, he must prove that the conduct was both improper and prejudicial. Lawrence Wingard fails to do so, and we therefore affirm.

BACKGROUND
On February 27, 2007 around 1:30 p.m., Officer Manuel Mairs responded to an alarm in progress call at a Puget Sound Energy substation in Federal Way. Officer Mairs pulled behind a pickup truck parked in the driveway and saw two white males inside a fenced area. Both wore dark clothing and were about the same build and stature. One of the men had a spool of wire over his shoulder. The men walked to a corner of the fenced area where there was a cut in the fence and exited. Upon noticing Officer Mairs walking towards them, the man carrying the wire dropped it. Both men then started walking towards the corner of an adjacent building and away from the truck.

Officer Mairs went around the building and apprehended the man who had not held the wire. He saw the other man crossing the parking lot and started yelling verbal commands to return and lay on the ground. The man who had held the wire walked several more feet, but then turned back and yielded to Officer Mairs’ commands.

At trial, Officer Mairs identified Wingard as the man who held the wire. Despite efforts of the defense to cast doubt on the identity of the man who held the wire, the jury convicted Wingard of burglary on the second degree.

Wingard argues the prosecutor committed reversible misconduct when, in closing argument and in rebuttal, he urged the jury to hold Wingard “accountable,” and used the language “ran” and “ran off” to describe Wingard’s actions after noticing Officer Mairs.

ANALYSIS
A prosecutor has a duty to ensure a verdict is free from prejudice and based on reason, not passion.[1] It is improper for a prosecutor to invite the jury to decide any case based on emotional appeals.[2]
Prosecutorial misconduct is grounds for reversal, however, only when the conduct was both improper and prejudicial in the context of the entire record and circumstances at trial.[3] Prejudice is established only if there is a substantial likelihood the misconduct affected the jury’s verdict.[4] The defendant bears the burden of showing both that the conduct was improper and that it caused prejudice.[5]

Wingard did not timely object to the challenged remarks. He objected to the comments urging the jury to hold him accountable only after the jury retired for deliberations, and did not object to the prosecutor’s use of the “ran” language until after the jury returned a verdict. Any error is therefore deemed waived unless the conduct was “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.”[6]

The prosecutor stated:

[Concluding closing argument] The State has proven that the defendant is guilty of the crime of Burglary in the Second Degree, and I ask that you hold him accountable and find him guilty.[[7] ] . . . .
[In rebuttal] Members of the jury, the State has passed the test. The State has established the elements and proven its case beyond a reasonable doubt. It’s your job now to look at the evidence, to look at the law, and to hold the defendant accountable.[[8] ]

Wingard argues that the exhortation to the jury to hold him accountable was an appeal to the jurors’ passions and prejudice and invited them to convict him based on a sense of social responsibility and to send a message.

We fail to find an appeal to prejudice in these two references to the consequences of a guilty verdict. Certainly the statements were not flagrant and ill intentioned. We are equally certain that any error would have been neutralized by an admonition from the court following a timely objection.

Wingard also contends the prosecutor committed misconduct by arguing, contrary to the evidence, that Wingard “ran” or “ran off” when he saw the police officer:

[Officer Mairs] indicated that the defendant threw down the wire, dropped the wire, and then ran off. . . .[[9] ] . . . .
[T]he defendant, unlike Mr. Bolieu, ran, dropped the wire, and ran. And he kept going, despite the fact that he was being commanded to do otherwise. Why does somebody do that?
In the law, there is a term of art, if you will, called consciousness of guilt, and evidence of flight, running away, is evidence of one’s consciousness of guilt. He knew he had done wrong, and he wanted to get away.[[10] ]

Elsewhere in his argument, the prosecutor clearly described Wingard as having walked away from the direction of the officer. In context, the remarks clearly refer to Wingard’s effort to flee. The terms “run” and “run off” are common synonyms for “flee” and “run away.”[11] There is no indication of an attempt to mislead the jury about the pace of Wingard’s flight. And again, an objection and correction from the court would have obviated any confusion created by the prosecutor’s choice of words.

Nor is there a showing of even speculative prejudice. Both Officer Mairs and Wingard testified that, when Wingard saw Officer Mairs, he walked, not ran, away from his truck. The jury was repeatedly instructed to decide the facts of the case based only upon the evidence presented at trial and to disregard any remark, statement, or argument not supported by the evidence or instructions. We presume juries follow the instructions.[12]

Wingard has shown neither impropriety nor prejudice.

Affirmed.

[1] State v. Echevarria, 71 Wn. App. 595, 598, 860 P.2d 420
(1993).
[2] State v. Gaff, 90 Wn. App. 834, 841, 954 P.2d 943 (1998).
[3] State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003).
[4] State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995).
[5] Hughes, 118 Wn. App. at 727.
[6] State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
[7] Report of Proceedings (Aug. 8, 2007) at 187.
[8] Id. at 210.
[9] Id. at 182 (emphasis added).
[10] Id. at 209 (emphasis added).
[11] See Webster’s Third New International Dictionary 1988 (1993) (defining “run away” as “flee, desert, abscond” and “run” as “flee, retreat, escape”).
[12] State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995).