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 OMAR * LOPEZ,                                  )         UNPUBLISHED OPINION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).

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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

                                                   5
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

                                              6
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.




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