Opinion
No. 37290-8-II.
April 7, 2009.
Appeal from a judgment of the Superior Court for Kitsap County, No. 07-1-01527-1, Sally F. Olsen, J., entered January 25, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Houghton, J.
Robert L. Arseneau, Jr. appeals his jury verdict conviction for felony failure to register as a sex offender under RCW 9A.44.130. Briefly, the State charged Arseneau with failure to register on the theory that he had moved out of his registered residence where he once lived with Michael Kelly, without informing police. Police testified that Kelly told them that Arseneau had moved out, but Kelly testified that he said no such thing.
On appeal, Arseneau argues that (1) insufficient evidence supports the element that Arseneau changed residence, (2) the prosecutor committed misconduct in closing argument, (3) the trial court lacked authority to impose community custody because his failure to register as a sex offender is not defined as a "sex offense" as defined in former RCW 9.94A.030(42) (2006), and (4) the sentencing court applied the wrong version of the Sentencing Reform Act of 1981, ch. 9.94A RCW.
DISCUSSION
Insufficient Evidence
The State prosecuted Arseneau on the theory that he "knowingly failed to comply with the . . . requirement [of sex offender registration] to provide written notice to the county sheriff's office within 72 hours of moving to a new location within the county." Clerk's Papers at 25. Arseneau argues only that insufficient evidence supported the conclusion that he had moved to a new location. Specifically, he argues:
The relevant state's evidence demonstrated that Mr. Arseneau may or may not have moved out of Mr. Kelly's apartment and may or may not have been spending the nights with Mr. Kelly and the days with his wife. The evidence was not conclusive and did not rise to the level of proof beyond a reasonable doubt that Mr. Arseneau changed his address and failed to register.
Br. of Appellant at 17. Arseneau's argument is inappropriate under our standard of review.
Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004). An appellant's claim of insufficient evidence admits the truth of the State's evidence and all reasonable inferences that can be drawn from the evidence. Thomas, 150 Wn.2d at 874 (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). In reviewing this claim, we defer to the jury on decisions resolving conflicting testimony and the credibility of witnesses because it had the sole opportunity to observe the witnesses' testimony. Thomas, 150 Wn.2d at 874-75.
Under this standard of review, we do not, as the appellant suggests, weigh evidence or make credibility determinations, nor may we reverse for insufficient evidence simply because the jury could have been persuaded to acquit. Arseneau admits that the State's evidence supports the conclusion that he had changed residences. Indeed, two law enforcement officers testified that Kelly, Arseneau's roommate at the registration address, told them that Arseneau had moved out either a week or a month before. Bremerton Police Detective Kenny Davis also testified that he did not find any of Arseneau's personal belongings when he searched the registration address. A rational trier of fact could find this evidence credible and conclude that Arseneau had moved. The evidence is sufficient. Prosecutorial Misconduct
Second, Arseneau argues that the prosecutor committed misconduct in closing argument by stating that the police officer witnesses were truthful. We disagree.
In order to establish prosecutorial misconduct, a defendant must prove that the prosecutor's conduct was improper and that it prejudiced his right to a fair trial. State v. Carver, 122 Wn. App. 300, 306, 93 P.3d 947 (2004) (citing State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003)). A defendant can establish prejudice only if there is a substantial likelihood that the misconduct affected the jury's verdict. Carver, 122 Wn. App. at 306 (quoting Dhaliwal, 150 Wn.2d at 578). We review a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. Carver, 122 Wn. App. at 306 (citing Dhaliwal, 150 Wn.2d at 578). If defense counsel fails to object to the prosecutor's statements, then reversal is required only if the misconduct was so flagrant and ill-intentioned that no instruction could have cured the resulting prejudice. State v. Belgarde, 110 Wn.2d 504, 508, 755 P.2d 174 (1988).
Here, Arseneau argues that the prosecutor committed misconduct by improperly asserting that the police officers testified truthfully. It was a key jury question whether to believe the police officers, who testified that Kelly told them that Arseneau no longer lived with him at the registered residence, or to believe Kelly, who said he never told that to police and Arseneau did live with him at the time. The prosecutor's relevant closing argument follows:
And before I talk about these biased [defense] witnesses in detail, I want you to take a look at Jury Instruction No. 1. . . . That instruction tells you, "You are the sole judges of the credibility of the witnesses."
Report of Proceedings (RP) (Jan. 16, 2008) at 5-6.
You might be asking yourself: Why did Mike Kelly say these things to the cops? Ask yourself instead: Why would the cops make this up? Why would the cops say that Mr. Kelly made these statements to them if he didn't? These are two law enforcement officers that have over 50 years of experience combined. They have been around for a long time. They don't play games like that. In fact, they have been around that long because they don't play games like that. What bias, what motivation did the cops have to sell Mr. Arseneau down the river? There is none. There is none at all.
RP (Jan. 16, 2008) at 8 (emphasis added). "Ask yourself why the cops would make this up." RP (Jan. 16, 2008) at 23-24.
Arseneau did not object and, therefore, must show that these closing arguments are flagrant and ill-intentioned misconduct and no instruction could have cured the resulting prejudice. Belgarde, 110 Wn.2d at 507. The emphasized language above could be construed as the prosecutor improperly vouching for the witnesses' credibility, rather than properly arguing an inference from the evidence. See State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). But Arseneau has not shown that this is flagrant and ill-intentioned, particularly given the context in which the prosecutor explained that the jury was the sole judge of credibility and then outlined the facts that support the conclusion the defense witnesses were not credible and the State's witnesses were.
Further, the case's full context demonstrates that any error is harmless. Arseneau's case theory was that the police misunderstood Kelly because he used a voice box, not that they were lying: "Mike Kelly is very difficult to understand. . . . It's very easy with a witness like this to believe that there was a misunderstanding. . . . I am not saying that [the police] are not telling you the truth here." RP (Jan. 16, 2008) at 14-15. As Arseneau's own case theory was that the police testified truthfully, but misunderstood the facts, he cannot demonstrate prejudice on the ground that the prosecutor argued that the police testified truthfully. Community Custody
Arseneau next argues that the trial court erroneously imposed community custody on the theory that his offense is a "sex offense." Former RCW 9.94A.715 (2006) authorizes sentencing courts to impose community custody when sentencing a person for particular types of crimes, including sex offenses. And "sex offenses" are defined in relevant part as "[a] felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(11)." Former RCW 9.94A.030(42)(a)(i). Arseneau's crime of failure to register as a sex offender violates RCW 9A.44.130(11). Thus, he argues that he has not committed a sex offense. But one month after Arseneau filed his opening brief, we resolved this issue to the contrary.
In State v. Albright, 144 Wn. App. 566, 569-70, 183 P.3d 1094, review denied, 164 Wn.2d 1028 (2008), we held that the legislature made an inadvertent numbering error because RCW 9A.44.130(11) used to criminalize failure to register as a kidnapping offender; the legislature subsequently amended and recodified that statute, but the legislature failed to amend the statute that defines "sex offense" to reflect the recodification. We judicially corrected the numbering error in RCW 9.94A.030(42)(a)(i) so that it reads as follows: "'A felony that is a violation of chapter 9A.44 RCW other than RCW 9A.44.130(12).'" Albright, 144 Wn. App. at 572-73. Thus, Arseneau committed a sex offense and the trial court did not err when it sentenced him accordingly. Applicable Sentencing Law
Our legislature also corrected this error in the 2008 legislative session. RCW 9.94A.030(39)(a)(i) (as amended by Laws of 2008, ch. 231, § 23) (effective August 1, 2009).
In a pro se letter that we treat as a statement of additional grounds for review, Arseneau argues that the sentencing court should have applied the laws of 1991 because he committed the underlying sexual offense which triggered the registration requirement in that year. But "[a]ny sentence imposed under [the Sentencing Reform Act of 1981] shall be determined in accordance with the law in effect when the current offense was committed." RCW 9.94A.345. Arseneau's "current offense" was his 2007 failure to register as a sex offender. Accordingly, the sentencing court did not err when it applied 2007 law.
RAP 10.10.
We affirm.
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 pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and
PENOYAR, A.C.J., concur.