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2014 NOV 1 8 ,
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IN THE COURT OF APPEALS OF THE STATE OF WASHIN:C;
DIVISION II
STATE OF WASHINGTON, No. 45436 -0 -II
Respondent,
v.
ROBERT L. VANDERVORT, UNPUBLISHED OPINION
Appellant.
WoRSwicx, P. J. — Robert Vandervort appeals his conviction for unlawful possession of a
controlled substance. He argues that the prosecutor committed misconduct by presenting the jury
with a false choice, and that he received ineffective assistance of counsel because his attorney
failed to object to the prosecutor' s rebuttal closing statement. He also appeals his sentencing
condition that prohibits him from going into any place whose primary place of business is the sale
of liquor. We affirm his conviction, but remand to the trial court to strike the sentencing condition.
FACTS
On July 10, 2013, Officer Matthew Jewett of the Department of Fish and Wildlife spotted
a vehicle about 30 yards off the road on Highway 101 near Purdy Canyon. As he approached the
car, Officer Jewett observed a man and a woman sleeping inside. Officer Jewett woke the
occupants, asked for their identification, and asked whether either of them had a warrant. The
woman did not have identification, but gave her name and date of birth. The man, Robert
Vandervort, removed his identification from a backpack and gave it to Officer Jewett. Vandervort
No. 45436 -0 -II
denied having an outstanding warrant. Officer Jewett investigated both names and discovered
Vandervort' s outstanding warrant. In the meantime, Vandervort fled into the woods.
After backup officers arrived, Officer Jewett found Vandervort about 50 yards from the
vehicle, lying face down behind a large tree and holding onto the backpack. Officer Jewett arrested
Vandervort and read him his Miranda' rights. Officer Jewett asked Vandervort how much
methamphetamine he had in his backpack. Vandervort answered that there was a small amount
and that he would show Officer Jewett where it was, which he did. Officer Jewett found
methamphetamine inside a container in the backpack.
The State charged Vandervort with unlawful possession of a controlled substance. At trial,
Vandervort asserted the affirmative defense of unwitting possession. Officer Jewett testified, " I
asked him about how much meth he had in his backpack and he said it was just a small amount
and that he would show me exactly where it was." . Report of Proceedings ( RP) at 58. Vandervort
testified that he told Officer Jewett that the container " may contain meth" because he had smoked
methamphetamine with the person who owned the container. RP at 85. He further testified that
he was unaware of the contents of the black container because it belonged to someone else. On
cross -examination, Vandervort admitted he had lied to Officer Jewett about the outstanding
warrant.
During defense' s closing argument, counsel raised the issue of Vandervort' s credibility and
admitted that the State had proven its case, and counsel then discussed the unwitting possession
instruction. During the State' s rebuttal, the prosecutor said,
In regards to the unwitting possession defense, that defense is just simply not
credible.... [ I] n regards to on a more probable than not basis whether he had
knowledge, for you to find that on a more probable than not basis he did not know
1 Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).
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No. 45436 -0 -II
the methamphetamine was in his backpack, you would have to be able to explain
how it is that Officer Jewett was either mistaken or being dishonest. Because you
can' t have —there' s one truth and three different stories, and you can' t have your
cake and eat it too, so it' s either Officer Jewett is mistaken or being dishonest or
the defendant is being dishonest.
It' s one or the other, and which is more probable? Is there any motivation
on the part of a police officer to come in here and lie? And what motivation does
the defendant have? Well, he has a stake in the outcome, and he' s shown that he
can lie under oath.
RP at 110, 112. A jury found Vandervort guilty of unlawful possession of a controlled substance.
At sentencing, the trial court found Vandervort had a chemical dependency that contributed
to the offense. As a condition for community custody, the trial court ordered Vandervort to stay
away from places whose primary business is the sale of liquor.
ANALYSIS
Vandervort appeals his conviction, arguing that the prosecutor committed misconduct in
his closing arguments, and that Vandervort received ineffective assistance of counsel when his
attorney did not object to the State' s closing argument. He also appeals his community custody
condition requiring him to abstain from entering businesses that sell liquor. The State concedes
that the trial court did not have the authority to impose this sentencing condition.
PROSECUTORIAL MISCONDUCT
When a defendant asserts a claim of prosecutorial misconduct, the defendant must prove
that the prosecutor' s conduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741,
756, 278 P. 3d 653 ( 2012) ( citing State v. Thorgerson, 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011)).
Allegedly improper conduct should be viewed " 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) ( citing State v. Pirtle, 127 Wn.2d 628,
672, 904 P. 2d 245 ( 1995)). To establish prejudice, the defendant must prove that there was a
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No. 45436 -0 -II
substantial likelihood that the prosecutor' s misconduct affected the jury' s verdict. Thorgerson,
172 Wn.2d at 442 -443. Prosecutors are presumed to act impartially in the interest of justice.
Thorgerson, 172 Wn.2d at 443. When the defendant does not object at trial, any error is deemed
waived " unless the prosecutor' s misconduct was so flagrant and ill intentioned that an instruction
could not have cured the resulting prejudice." Emery, 174 Wn.2d at 760 -761 ( citing State v.
Stenson, 132 Wn.2d 668, 727, 940 P. 2d 1239 ( 1997)).
A prosecutor commits misconduct if he or she argues that to acquit a defendant, the jury
must find that the State' s witnesses are either lying or mistaken. State v. Fleming, 83 Wn. App
209, 213, 921 P. 2d 1076 ( 1996). However, an argument that to believe a defendant, the jury would
need to believe that the State' s witnesses are mistaken, does not constitute misconduct. State v.
Wright, 76 Wn. App. 811, 824, 888 P. 2d 1214 ( 1995). Additionally, remarks by the prosecutor,
including those that would otherwise be improper, -are not grounds for reversal where they are
invited by and responded to with remarks by defense counsel, unless they bring in additional
matters beyond the record or are " so prejudicial that an instruction would not cure them." State v.
La Porte, 58 Wn.2d 816, 822, 365 P. 2d 24 ( 1961).
This case is similar to Wright. There, the prosecutor argued that in order to believe the
defendant, " the jury would have to believe that the officers got it wrong." Wright, 76 Wn. App. at
823 ( internal quotation marks omitted). This was distinguishable from a prosecutor saying that to
find a defendant not guilty, the jury would have to believe that the officers were lying. Wright, 76
Wn. App. at 823. Because Vandervort asserted an unwitting possession defense, his defense relied
on his credibility. The only evidence tending to prove an unwitting possession defense was
Vandervort' s own testimony. His defense depended on whether the jury found his version of
events credible when he testified he did not know what was in the container containing the
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No. 45436 -0 -II
methamphetamine, and that it belonged to someone else. Defense counsel raised the issue of
Vandervort' s credibility in his closing. The prosecutor, in turn, brought up the issue of conflicting
testimony as it related to the defendant' s credibility. The prosecutor' s reference to the conflicting
testimony between Officer Jewett and Vandervort in rebuttal closing was not misconduct.
INEFFECTIVE ASSISTANCE OF COUNSEL
To succeed on an ineffective assistance of counsel claim, a defendant must show both that
counsel' s representation was deficient, and that this deficiency prejudiced the defendant. State v.
McFarland, 127 Wn.2d 322, 334 -335, 899 P. 2d 1251 ( 1995). If a defendant makes an insufficient
showing on one prong, we need not address the other. State v. Garcia, 57 Wn. App. 927, 932, 791
P. 2d 244 ( 1990). Because Vandervort has failed to prove that the prosecutor committed
misconduct, there was no basis for an objection. Therefore, counsel' s performance could not have
been deficient. Vandervort' s ineffective assistance of counsel claim fails.
SENTENCING CONDITION
Vandervort also argues that the trial court .acted without authority when it ordered him not
to frequent places whose primary business is the sale of liquor. The trial court has the statutory
authority to impose crime -related prohibitions as conditions for community custody. RCW
9. 94A.703( 3)( f). However, there is nothing in the record showing that alcohol contributed to
Vandervort' s possession of a controlled substance offense, or that he suffers from alcohol
dependency. Accordingly, we accept the State' s concession and remand to the trial court to strike
the community custody condition requiring Vandervort to stay away from businesses that sell
liquor.
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CONCLUSION
We affirm Vandervort' s conviction because the prosecutor' s remarks were not improper. We
accept the State' s concession regarding the community custody condition, and remand to the trial
court to strike the condition ordering Vandervort to stay away from businesses that sell alcohol.
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 in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
Worswick, P. J.
d'''°-
Lee,
Sutton, J.
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