IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 73720-1-1
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
KEVIN E. INGALLS,
FILED: November 7, 2016
Appellant.
Appelwick, J. — A jury convicted Ingalls of attempting to elude a police
vehicle. Ingalls argues that the prosecutor committed misconduct during closing
argument by referring to stricken evidence, shifting the burden of proof, and
commenting on the defendant's silence. He argues that the trial court insufficiently
responded to a question asked by the jury. He makes numerous other arguments
in a statement of additional grounds for review. We affirm.
FACTS
Washington State Patrol Trooper James Ramey observed a Ford Taurus
driving erratically on the freeway. When the trooper activated his lights, the Taurus
did not stop. Instead, it continued to drive between about 50 and 55 miles per
hour. The trooper pulled alongside the Taurus and signaled to the driver to pull
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over. He observed the driver looking straight ahead. The driver then increased
speed to over 100 miles per hour. He clipped another vehicle while moving from
the freeway shoulder back to a traffic lane. He then took an exit, sped through a
stop light at around 90 miles per hour, and reentered the freeway. At this point,
the trooper terminated pursuit for safety reasons.
Ingalls was charged with attempting to elude a police vehicle. The jury
found Ingalls guilty. Ingalls appeals.
DISCUSSION
Ingalls first argues that the prosecutor committed misconduct. Second, he
argues that the trial court failed to adequately respond to a question that the jury
asked during deliberations. Finally, he presents a number of arguments in a
statement of additional grounds for review.
I. Prosecutorial Misconduct
Ingalls argues that three of the prosecutor's statements during closing
argument constitute prosecutorial misconduct.1 A prosecutor has wide latitude in
closing argument to draw reasonable inferences from the evidence and to express
such inferences to the jury. State v. Hoffman, 116 Wn.2d 51, 94-95, 804 P.2d 577
(1991). The defendant bears the burden of proving that the prosecutor's alleged
misconduct was both improper and prejudicial. State v. Emery, 174 Wn.2d 741,
756, 278 P.3d 653 (2012). The burden to establish prejudice requires the
defendant to prove that there is a substantial likelihood that the instances of
1 Ingalls makes this same prosecutorial misconduct argument in additional
ground seven in his statement of additional grounds for review. This analysis also
addresses that argument.
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misconduct affected the jury's verdict. State v. Thorqerson. 172 Wn.2d 438, 442-
43, 258P.3d43(2011).
The failure to object to an improper remark constitutes a waiver of error
unless it 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. Id. at
443. Ingalls did not object to any of these statements. His argument on this issue
is therefore waived unless the remarks were flagrant, ill-intentioned, and
noncurable. See id.
First, Ingalls argues that three of the prosecutor's comments referenced
evidence that the trial court had previously excluded. The trooper was the only
witness to testify at trial. He testified that immediately after terminating pursuit, he
looked up Department of Licensing (DOL) information on the owner of the Ford
Taurus. That information included the registered owner's photograph.2 The
defense objected to the trooper's use of the DOL information on hearsay grounds.
In response, the prosecutor told the court that it had intended to elicit testimony
about only the trooper's procedural steps in accessing the DOL information, and
not to elicit testimony about whom the photographed individual was. The court
decided to give a limiting instruction to the jury: "Thetestimony about the trooper's
procedural steps shall stand. But, to the extent that any testimony suggested that
the trooper received or saw information from the department of licensing specific
to this defendant, that testimony and information is stricken and the jury shall
2The trooper also identified Ingalls as the driver in court, without use of
the Department of Licensing information.
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disregard." (Emphasis added.) Then, during closing argument, the prosecutor
made three separate statements that Ingalls claims refer to stricken evidence.
First, the prosecutor stated that the trooper "looked at a photo." Second, he stated
that the trooper "who had the opportunity to observe him identified him twice."
Finally, he later stated that the trooper was "looking at things." Ingalls did not object
to any of these remarks.
Ingalls now alleges that these remarks improperly referenced excluded
evidence. But, none of the statements at issue refer to the trooper's substantive
use of the photo (i.e., identification), which is the only portion of the testimony that
the trial court excluded. The prosecutor's remarks that "he looked at a photo" and
"he was there looking at things" comment only on what the trooper did, not the
substance of what he saw. These are precisely the "procedural steps" that the trial
court explicitly allowed to stand as evidence.
Ingalls also argues that the statement that "[t]he person who had the
opportunity to observe him identified him twice" refers to the excluded evidence.
But, it is unclear to which two observations (or identifications) in the record that the
prosecutor was referring. The prosecutor may have been referring to the trooper's
observations of the driver while alongside him during the pursuit: once while the
driver was looking straight ahead without gesturing and once after the trooper
signaled him to pull over, while the driverwas waving his hand.3 Or, the prosecutor
3 With respect to this sequence, the trooper testified as follows:
Q. So, your passenger side is on the Taurus's driver's side?
A. Yes.
Q. Can you see through your windows?
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may have been referring to the trooper's two separate in-court observations and
identifications of Ingalls as the driver of the vehicle. Or, the prosecutor could also
have been referring to any combination of those four observations. The record
does not make clear that the prosecutor was referring to the excluded DOL
identifying information. An objection would have allowed the trial court to clarify
this reference and, if necessary, instruct the jury, but Ingalls did not object. Ingalls
has not carried his burden to establish that the prosecutor violated the trial court's
ruling, let alone made remarks that were flagrant, ill-intentioned, and noncurable.
Second, Ingalls argues that the prosecutor shifted the burden of proof and
commented on Ingalls's silence.4 During closing argument, the prosecutor told the
jury that "[i]t's whether the defendant did it. And the unrefuted testimony is, yes,
of course he did." But, stating that evidence was "unrefuted" is not related to
burden allocation. A prosecutor is entitled to comment on the amount and
persuasiveness of the prosecution's evidence relative to the defense's evidence.
See State v. Jackson, 150 Wn. App. 877, 885-86, 209 P.3d 553 (2009) ("The mere
mention that defense evidence is lacking does not constitute prosecutorial
misconduct or shift the burden of proof to the defense."); State v. Osman, 192 Wn.
A. Yes.
Q. What do you see?
A. I see a white male with a baseball cap driving the car looking
straight ahead.
Q. And when you look and see that person and you make the motion,
does he respond?
A. He did. He was still just looking straight forward and then he just
started waving his hand in that kind of a motion. (Indicating.)
4 Ingalls chose not testify. Trooper Ramey was the only witness who
testified.
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App. 355, 367, 366 P.3d 956 (2016) ("[A] prosecutor is entitled to point out the
improbability or lack of evidentiary support for the defense theory of the case.").
Here, the prosecutor merely noted that his witness's testimony is the only
testimony that the jury heard. This comment did not shiftthe burden of proof.
Nor did the prosecutor's "unrefuted" remark improperly comment on
Ingalls's right to remain silent. An improper comment on a defendant's silence
occurs when the State uses a defendant's silence as evidence of guilt or suggests
the silence was an admission of guilt. State v. Gregory. 158 Wn.2d 759, 838,147
P.3d 1201 (2006V overruled on other grounds by State v. W.R., 181 Wn. 2d 757,
336 P.2d 1134 (2014). Neither occurred here. By stating that the evidence was
"unrefuted," the prosecutor was merely stressing his belief as to the weight of
evidence presented. He did not ask the jury to find the defendant guilty because
he was silent. The statement was therefore not improper. See State v. Slone. 133
Wash. App. 120, 127, 134 P.3d 1217 (2006) ("A mere reference to silence ... is
not necessarily an impermissible comment and, therefore, not reversible
constitutional error, absent a showing of prejudice.").
Ingalls has not carried his burden to show that the prosecutor's conduct was
improper and prejudicial.
II. Supplemental Jury Instructions
Ingalls next argues that the trial court failed to adequately supplement its
instructions in response to a jury question. The trial court has discretion to provide
the jurywith supplemental instructions. CrR 6.15(f); State v. Calvin. 176 Wn. App.
1,20, 316 P.3d 496 (2013). review granted in part on other grounds and remanded
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to the trial court by 183 Wn.2d 1013, 353 P.3d 640 (2015). We therefore review
the trial court's response to a jury question for abuse of discretion. See State v.
Becklin. 163 Wn.2d 519, 530, 182 P.3d 944 (2008).
During deliberations, the jury asked the court, "What specific part of Officer
Ramey's testimony regarding his procedure are we allowed to consider?" The
court consulted with counsel in open court. Ingalls suggested an answer that
repeated what the court had orally instructed the jury in ruling on the objection to
the trooper's testimony. But, the court adopted the State's suggestion, and
responded to the jury by stating, "The Court cannot comment upon the evidence,
and you are to apply the instructions previously given." Ingalls contends this
response was reversible error because it failed to adequately respond to the jury's
request for clarification.
While we agree that the trial court could have responded by repeating its
prior instruction, we disagree that the court abused its discretion by not doing so.
During the trooper's testimony, Ingalls objected to the State's line of questioning
before the trooper provided an identification based on the DOL information. All of
the trooper's testimony that the jury heard regarding the DOL information was
therefore procedural in nature. Even if the jury was unsure as to what it could
consider, there was no substantive evidence in the record for it to improperly
consider. Accordingly, the jury could not have been considering excluded
evidence, and Ingalls could not have suffered any prejudice from the court's
response. We find no abuse of discretion.
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III. Statement of Additional Grounds for Review
Ingalls makes 10 arguments in a statement of additional grounds for review.
A. Pretrial Motions
Ingalls first argues that his pretrial motions were not heard. He argues that
the DOL information should have been excluded based on a pretrial motion. But,
at trial, his attorney objected to the DOL information and the trial court sustained
the objection with respect to the officer's identification using the DOL photo. This
argument is therefore moot.
B. Ineffective Assistance of Counsel
Ingalls argues that his attorney spent too much time investigating whether
Ingalls was competent to stand trial, and should have devoted more time to
investigating a possible alibi. Counsel's assistance is presumed to be effective.
Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). To prevail on an ineffective assistance of counsel claim, the appellant must
show (1) deficient performance and (2) resulting prejudice. State v. Turner. 143
Wn.2d 715, 730, 23 P.3d 499 (2001). A deficient performance falls below an
objective standard of reasonableness based on consideration of all of the
circumstances. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).
Here, the record shows that the attorney considered the competency
evaluation to be a prudent course of action. When counsel's conduct can be
attributed to legitimate strategy, performance is not deficient. State v. Grier, 171
Wn.2d 17, 33, 246 P.3d 1260 (2011). Ingalls has not rebutted the presumption
that counsel was effective.
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No. 73720-1-1/9
C. Witness Credibility
Ingalls argues that Trooper Ramey's testimony was not credible. But,
credibility determinations are for the jury, and we will not disturb them. State v.
Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
D. Sufficiency of the Evidence
Ingalls challenges the sufficiency of the evidence against him, because the
police never found the Ford Taurus. The test for determining the sufficiency of the
evidence is whether, after viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found guilt beyond a reasonable doubt.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Here, finding the
vehicle was not essential to any of the elements of the crime of attempting to elude
a police vehicle. See RCW 46.61.024(1) ("Any driver of a motor vehicle who
willfully fails or refuses to immediately bring his or her vehicle to a stop and who
drives his or her vehicle in a reckless manner while attempting to elude a pursuing
police vehicle, after being given a visual or audible signal to bring the vehicle to a
stop, shall be guilty of a class C felony."). Evidence was sufficient to convict Ingalls
of attempting to elude a police vehicle under RCW 46.61.024(1).
E. Vindictive Prosecution
Ingalls argues that his conviction was the result of vindictive prosecution
due to Ingalls's refusal to accept a plea agreement. Prosecutorial vindictiveness
occurs when the government acts against a defendant in response to the
defendant's prior exercise of constitutional or statutory rights. State v. Korum. 157
Wn.2d 614, 627, 141 P.3d 13 (2006). A prosecution is "vindictive" only if designed
No. 73720-1-1/10
to penalize a defendant for invoking legally protected rights, jd. A defendant bears
the burden of showing (1) actual vindictiveness, or (2) realistic likelihood of
vindictiveness. Jd,
Ingalls shows neither form of vindictiveness. He was charged with a
colorable crime. No evidence in the record before us shows that the prosecutor
had any improper motive. We reject his vindictive prosecution argument.
F. Right to Fair and Impartial Jury
Ingalls alleges that the trial court erred by not granting a mistrial when the
court dismissed a juror, because he had moved to an out-of-county address. The
court empaneled 13 jurors in case one had to be excused. After the jury was
empaneled, the court learned that one of the jurors needed to be excused based
on his address. This left twelve jurors. Though the jury was still of sufficient size,
Ingalls moved for a mistrial. The juror was African American. Ingalls argued that
the juror, because of his race, may have a perspective more favorable to him and
that the loss of that juror would be prejudicial. The trial court denied the motion for
a mistrial on the grounds that twelve competent jurors remained.
We review a trial court's decision to replace a juror with an alternate juror
for abuse of discretion. State v. Wirth. 121 Wn. App. 8, 13, 85 P.3d 922 (2004).
We will overturn such a decision only if it is manifestly unreasonable or based on
untenable grounds or reasons. Id. We also review a denial of a motion for mistrial
for abuse of discretion. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541
(2002). A trial court's denial of a motion for mistrial will be overturned only when
there is a substantial likelihood that the error prompting the mistrial affected the
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No. 73720-1-1/11
jury's verdict, jd. at 269-70. Jurors may naturally become ill or otherwise
unavailable. To that end, CrR 6.5 explicitly allows the court to seat alternate jurors
so that circumstances such as the instant one need not prompt a new trial. Ingalls
points to nothing in the record that shows that the trial court's decision was
manifestly unreasonable. The trial court did not abuse its discretion in denying the
motion for a mistrial.
G. Outstanding Motion
Finally, Ingalls argues that we failed to consider or improperly considered a
motion he filed with this court prior to trial. That motion is not in the record before
us. We will therefore not address it. Bulzomi v. Dep't of Labor & Indus.. 72 Wn.
App. 522, 525, 864 P.2d 996 (1994) ("An insufficient record on appeal precludes
review of the alleged errors.").
Affirmed.
WE CONCUR:
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