FILED
JUNE 21, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 35109-2-III
Respondent, )
)
v. )
)
OMAR * LOPEZ, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. — Omar Lopez appeals from his convictions for second degree
criminal trespass and possession of a stolen vehicle, arguing that the trial court erred in
disallowing a jury instruction he proposed and that the prosecutor committed misconduct
in closing argument. Discerning no prejudicial error, we affirm.
FACTS
Royal City Police Chief Darin Smith was driving past his parents’ farm house on
the outskirts of the city when he saw an unfamiliar Jeep in the driveway. Knowing that
his parents were out of town, Chief Smith turned in to the property to learn what was
happening. Mr. Lopez, returning to the Jeep from the direction of the front door of the
house, ran away upon seeing the officer.
No. 35109-2-III
State v. Lopez
Chief Smith called the license plate in and learned that the vehicle had been stolen
the previous day.1 After a search for the man, Chief Smith discovered Mr. Lopez hiding
in a window well2 on the side of the house. In addition to the two noted charges, a charge
of possession of burglary tools was filed. The matter proceeded to jury trial.
Mr. Lopez did not testify and the trial court instructed the jury that it could not
consider that fact in reaching its verdict. The defense also obtained a jury instruction
based on WPIC 19.073 that informed jurors that it was a defense to the trespass charge
that the defendant reasonably believed the owner would have licensed him to be on the
premises. The defense also proposed an instruction based on Florida v. Jardines, 569
U.S. 1, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (2013), that would have instructed the jury
that a visitor has an implied license to enter the property and approach the front door.
The trial judge declined to give the proposed Jardines instruction.
In closing argument, the prosecutor noted that two items (a screwdriver and a
slingshot) belonging to the Jeep’s owner had been found on Mr. Lopez when he was
arrested. The prosecutor argued that “you heard no evidence whatsoever that” the items
1
The owner later would testify that he did not know Mr. Lopez and had not given
permission for Lopez to use the Jeep.
2
The prosecutor described the area as a crawl space, but we use the trial judge’s
description that it was a window well.
3
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 19.07, at 339 (4th ed. 2016) (WPIC).
2
No. 35109-2-III
State v. Lopez
“belonged to Mr. Lopez” and that the owner’s testimony “was uncontested.” There was
no objection to the testimony.
The jury acquitted on the burglary tools charge, but convicted Mr. Lopez on the
vehicle possession and trespass counts. The court imposed a midrange 16 month
sentence on the stolen vehicle count. Mr. Lopez then timely appealed to this court. A
panel considered the matter without hearing argument.
ANALYSIS
Mr. Lopez presents two arguments for our consideration.4 First, he argues that the
court erred in denying his proposed Jardines instruction. Next, he contends that the
prosecutor committed prejudicial misconduct in calling attention to his decision not to
testify. We consider those arguments in the order listed.
Jury Instruction
The trial court denied the proposed Jardines instruction after instructing the jury
on the defense of implied invitation. That instruction rendered the Jardines instruction
redundant. It also lacked evidentiary support in the trial record. There was no abuse of
discretion in declining to give the Jardines instruction.
Well settled standards govern review of this contention. Trial courts have an
obligation to provide instructions that correctly state the law, are not misleading, and allow
4
Mr. Lopez also asks that we waive appellate costs. Since the State has indicated
that it will not be seeking costs, the matter is moot.
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No. 35109-2-III
State v. Lopez
the parties to argue their respective theories of the case. State v. Dana, 73 Wn.2d 533, 536-
537, 439 P.2d 403 (1968). A court should give an instruction only if it is supported by
substantial evidence. State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986). The trial
court also is granted broad discretion in determining the wording and number of jury
instructions. Petersen v. State, 100 Wn.2d 421, 440, 671 P.2d 230 (1983). Discretion is
abused when it is exercised on untenable grounds or for untenable reasons. State ex rel.
Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, there was not substantial evidence that would have supported the instruction
under Hughes. Mr. Lopez was found hiding in a window well. That action was the
prosecutor’s theory of trespass. Report of Proceedings at 335-336. The implied license
given to visitors to approach a house and knock on the front door simply was not implicated
in this case. Mr. Lopez was prosecuted for running away from the front door and hiding on
the property, not for attempting to approach and knock in the first instance. No evidence
supported the Jardines instruction.
In addition, the proposed instruction was unnecessary. Instruction 20, based on
WPIC 19.07, told jurors that it was a defense, which the prosecutor had to disprove, that the
defendant reasonably believed he was authorized to be on the property. This instruction,
which was not limited merely to ingress and egress from the front door, carried the same
message that the proposed Jardines instruction did, but covered a broader range of activity
4
No. 35109-2-III
State v. Lopez
than that instruction. The rejected instruction was redundant. The court did not abuse its
discretion in declining to give the instruction.
There was no error in refusing to give the proposed instruction.
Prosecutor’s Closing Argument
Mr. Lopez also contends that the prosecutor engaged in misconduct by arguing that
the victim’s testimony concerning the ownership of the screwdriver and slingshot was
“uncontested” and that they had “heard no evidence” that the items belonged to Mr. Lopez.
These arguments were not so flagrant and ill-intentioned that they were beyond cure. The
failure to object waives the claim.
Once again, well settled standards govern our review of this contention. To prevail
on a claim of prosecutorial misconduct, a defendant must establish that the prosecutor’s
conduct was both improper and resulted in prejudice in light of the context of the entire
record and the circumstances at trial. State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d
43 (2011). Prejudice exists only where there is a substantial likelihood the misconduct
affected the jury’s verdict. Id. at 442-443. When a defendant fails to object to an
improper remark, he or she waives a claim 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.’” Id. at 443 (quoting State v. Russell, 125
Wn.2d 24, 86, 882 P.2d 747 (1994)). Thus, a properly challenged statement will be
reviewed for a “substantial likelihood” that it affected the verdict, while unchallenged
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No. 35109-2-III
State v. Lopez
statements will be considered only if the error was too egregious for a timely objection to
be worthwhile. This court reviews alleged improper comments in the context of the total
argument, the issues in the case, the evidence addressed in the argument, and the
instructions given to the jury. State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
Here, Mr. Lopez failed to contest the comment in the trial court and necessarily
has to argue that it was so egregious that a timely objection was futile. We do not believe
that is the case here. In instances of alleged comments on the right to remain silent, it
long has been the rule in this state that the prosecutor can argue “that certain testimony is
undenied, without reference to who may or may not be in a position to deny it.” State v.
Litzenberger, 140 Wash. 308, 311, 248 P. 799 (1926). Prosecutors may also comment on
the defense’s failure to present evidence on a particular issue if someone other than the
defendant could have testified to the issue. State v. Ashby, 77 Wn.2d 33, 38, 459 P.2d
403 (1969). It order to constitute a comment on the defendant’s constitutional rights, the
statement must be a clear attempt to use the right to remain silent as substantive evidence
against the defendant. State v. Lewis, 130 Wn.2d 700, 706-707, 927 P.2d 235 (1996).
Thus, merely because an argument improperly touches upon the privilege, it does not
mean that it is per se reversible error. A cautionary instruction following an objection
would clarify remarks for the jury.
In other words, the alleged error in this instance was not so egregious that it was
beyond the trial court’s ability to correct. An objection would have led to a reminder that
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No. 35109-2-III
State v. Lopez
the defendant had no burden of proof or a reminder that Mr. Lopez had no obligation to
testify, two subjects upon which the court had already instructed the jury. It also would
have allowed the prosecutor to correct any misperceptions about her statement for the
JUry.
The error alleged by Mr. Lopez was not so egregious that it was beyond cure. He
has failed to establish prosecutorial misconduct.
The convictions are affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Fearing, J.
7