Opinion
No. 34591-9-II.
August 21, 2007.
Appeal from a judgment of the Superior Court for Pacific County, No. 05-1-00173-7, Michael J. Sullivan and Joel M. Penoyar, JJ., entered March 15, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Hunt, J.
Eric V. Trent appeals his conviction of first degree unlawful possession of a firearm. We affirm.
FACTS
In February 2005, Erin Bond and/or Eric Trent stole five firearms from the house of Bond's father. In March 2005, Trent sought to sell one of these firearms, a rifle, to Gary Pittman. After Pittman expressed interest in purchasing the rifle, Trent and another person brought the rifle to Pittman's house.
Under a grant of immunity from the State, Bond testified that she stole the firearms from her father's house and that Trent had "no involvement." RP (Feb. 9, 2006) at 215. She denied making earlier statements to the police that either Trent stole the firearms or she stole the firearms and then gave them to Trent.
Pittman looked at the rifle, but he did not like it. After telling Trent that the scope on the rifle was crooked, Trent took the rifle from Pittman and then straightened the scope. Pittman then paid Trent $200 for the rifle, with the understanding that Trent would give this money to Bond so that she could hire an attorney. And Trent then promised to pay Pittman $300 for this $200 loan at some time in the future.
Pittman tried to contact Bond, but he could not reach her. So he contacted Bond's father, who asked why Pittman was trying to contact Bond. Pittman explained to him that he had acquired something that belonged "to her or her mother or somebody." RP (Feb. 8, 2006) at 81. Bond's father then told Pittman that some of his rifles were missing. Ultimately, Bond's father identified Pittman's rifle as being one of his stolen firearms.
The State charged Trent with one count of first degree unlawful possession of a firearm. After a trial, the jury found Trent guilty as charged. The trial court then imposed a standard range sentence of 116 months of confinement. Trent appeals.
ANALYSIS I. Sufficiency of the Evidence
Trent contends that the evidence was insufficient to support his conviction of first degree unlawful possession of a firearm. Specifically, he claims that he did not actually or constructively possess the firearm. We disagree.
In order for the jury to convict Trent of unlawful possession of a firearm, the jury needed to be convinced beyond a reasonable doubt that he: (1) knowingly; (2) had a firearm in his possession or control; and (3) had previously been convicted of a serious offense. RCW 9.41.040(1)(a); see State v. Williams, 125 Wn. App. 335, 103 P.3d 1289 (2005), aff'd, 158 Wn.2d 904 (2006); see also 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 133.02, at 231-33 (Supp. 2005). Consequently, the validity of Trent's conviction rests on whether sufficient evidence supported the jury's finding, beyond a reasonable doubt, that Trent had a firearm in his possession or control.
Trent and the State stipulated that he had a prior conviction that was a serious offense under RCW 9A.41.040(1)(a).
Evidence is sufficient to support a conviction if, 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. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant challenges the sufficiency of evidence in a criminal case, this court draws all reasonable inferences from the evidence in favor of the State and interprets all reasonable inferences from the evidence strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that this court reasonably can draw therefrom. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385 (1980). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Possession may be actual or constructive. State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). "Actual possession means that the goods are in the personal custody of the person charged with possession; whereas, constructive possession means that the goods are not in actual, physical possession, but that the person charged with possession has dominion and control over the goods." State v. Callahan, 77 Wn.2d 27, 29, 459 P.2d 400 (1969). Exclusive dominion and control over the goods is not necessary, but mere proximity to the contraband is insufficient. State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002); State v. Potts, 93 Wn. App. 82, 88, 969 P.2d 494 (1998); State v. Morgan, 78 Wn. App. 208, 212, 896 P.2d 731, review denied, 127 Wn.2d 1026 (1995). One can be in constructive possession jointly with another person. Morgan, 78 Wn. App. at 212. "No single factor, however, is dispositive in determining dominion and control. The totality of the circumstances must be considered." State v. Turner, 103 Wn. App. 515, 521, 13 P.3d 234 (2000) (citations omitted).
Moreover, a conviction may be properly based on a "pyramiding of inferences," as long as the inferences and underlying evidence are strong enough to permit a rational fact finder to find guilt beyond a reasonable doubt. State v. Bencivenga, 137 Wn.2d 703, 711, 974 P.2d 832 (1999). Whether the evidence is direct, circumstantial, or a combination of the two, the jury only needs to be convinced of the defendant's guilt beyond a reasonable doubt. Bencivenga, 137 Wn.2d at 711.
During the police investigation into the stolen firearms, Bond gave Sergeant Richard Pearson three different versions of how her father's firearms were stolen. Bond said, alternatively, that: (1) Trent stole the firearms; (2) she stole the firearms and then gave them to Trent; and (3) she stole the firearms and then gave them to another person whom she does not know. At trial, she denied making the first two statements.
Nevertheless, Pittman testified that he had a telephone conversation with Trent about whether he wanted to purchase a rifle from Trent. Pittman said, "I don't know. Bring it out and I'll look at it." RP (Feb. 8, 2006) at 77. Thereafter, Trent and another person brought the rifle to Pittman's house.
Pittman could not remember who held the rifle when Trent and the other person entered his house. In fact, Pittman admitted that his prior statements to law enforcement officers were inconsistent with his incourt testimony. And Pittman also testified that Trent told him that he did not own the rifle.
Once inside Pittman's house, somebody handed the rifle to Pittman. Pittman looked at the rifle, but he did not like it. After telling Trent that the scope on the rifle was crooked, Trent took the rifle from Pittman and then straightened the scope.
Pittman then paid Trent $200 for the rifle, with the understanding that Trent would give this money to Bond so that she could use the money for an attorney. Trent then promised to pay Pittman $300 for the rifle at some time in the future. But as of trial, Trent had not done so.
Pittman testified that "[Bond's] boy had got taken away from 'em and that he needed — they needed money for a lawyer." RP (Feb. 8, 2006) at 80.
Trent argues that "[he] merely presented himself as an intermediary" and that his "minor role in facilitating this loan" does not indicate his ownership of the firearm. Br. of Appellant at 9-10. But the evidence shows that Trent sought to sell the firearm. Trent knew that he was transporting the firearm. Trent handled the firearm in response to Pittman's rejection of it. Trent took the money when selling the firearm to Pittman. And Trent did nothing to reject his control of the firearm. Thus, after considering the totality of the circumstances in the light most favorable to the State, we are satisfied that the evidence is sufficient for a reasonable trier of fact to find, beyond a reasonable doubt, that Trent had dominion and control over the firearm.
II. Evidence of Other Crimes, Wrongs, or Acts
Trent claims that the trial court denied his constitutional right to a fair trial. Essentially, he argues that the trial court erred in admitting certain evidence under ER 404(b). We disagree.
ER 404(b) forbids evidence of prior acts that tend to prove a defendant's propensity to commit a crime, but it does allow its admission for other limited purposes:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999) (quoting ER 404(b)).
We review a trial court's admission of evidence for an abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). "'A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds.'" State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)), review denied, 133 Wn.2d 1019 (1997). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538 (1983).
Generally, to preserve appellate review of an alleged error, a defendant must timely and specifically object on the record at trial. See, e.g., State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Sengxay, 80 Wn. App. 11, 15, 906 P.2d 368 (1995); State v. Kendrick, 47 Wn. App. 620, 634, 736 P.2d 1079, review denied, 108 Wn.2d 1024 (1987). Otherwise, objections not raised at trial are usually waived unless they are manifest errors affecting constitutional rights. RAP 2.5(a); see also State v. Avendano-Lopez, 79 Wn. App. 706, 710, 904 P.3d 324 (1995), review denied, 129 Wn.2d 1007 (1996) (citing ER 103). And evidentiary errors under ER 404(b) are not of constitutional magnitude and are harmless unless the outcome of the trial would have differed had the error not occurred. State v. Wade, 98 Wn. App. 328, 333, 989 P.2d 576 (1999).
A different situation is presented, however, when evidentiary rulings are made in response to motions in limine. State v. Powell, 126 Wn.2d 244, 256, 893 P.2d 615 (1995). Our Supreme Court has stated:
Because the purpose of a motion in limine is to avoid the requirement that counsel object to contested evidence when it is offered during trial, the losing party is deemed to have a standing objection where a judge has made a final ruling on the motion, unless the trial court indicates that further objections at trial are required when making its ruling.
Powell, 126 Wn.2d at 256 (quotations and citations omitted).
Here, before trial, Trent's counsel moved to have evidence of "prior and unsubstantiated misconduct" excluded under ER 404(b). CP at 90. Specifically, he claimed that "Mr. Trent's prior misconduct, for which he served his sentence, is not admissible to demonstrate the defendant's general propensity for misconduct." CP at 92. Trent's counsel then concluded:
The State of Washington must be precluded from presenting any testimony and from making any reference in its case-in-chief to any of Mr. Trent's prior misconduct and convictions other than those permitted and allowed by the court under ER 609. The State may try to introduce a statement or reference that Mr. Trent is a dangerous person or a "criminal type" and is thus likely to have committed the crime for which he is presently charged. This reference is (a) not relevant to any material issue of this case and (b) prejudices Mr. Trent by educating the jury that he was in prison on a separate and unrelated crime.
CP at 97.
During a hearing on the motion in limine, Trent's counsel advised the trial court, "So we're just asking that no reference be made to the underlying conviction, or any conviction for that matter, as there's no probative value." RP (Jan. 20, 2006) at 5-6. The State apparently agreed to Trent's request by stating, "I do not intend to rely on any 404(b) evidence, certainly none that wouldn't be substantiated. Your Honor, the only convictions that I intend to use against the Defendant are those pursuant to Evidence Rule 609 if the Defendant testifies." RP (Jan. 20, 2006) at 6. And Trent's counsel replied, "Clearly, we would have no objection to that if Mr. Trent chooses to testify." RP (Jan. 20, 2006) at 6.
The trial court then signed an order, in which the State agreed that "all of its witnesses shall be precluded from naming the defendant's underlying predicate offense and prior conviction." CP at 47. Trent agreed that his prior conviction for first degree burglary was "a serious offense for purposes of this case." CP at 47. And, in a hand-written addendum, the parties agreed "unless the defendant so testifies." CP at 47.
It is clear from Trent's motion, the colloquy before the trial court, and the signed order, that the trial court made a final ruling regarding only Trent's prior conviction, not any other misconduct. Therefore, while Trent had a standing objection to the State's use of his prior conviction, he did not have a standing objection to evidence of Trent's other wrongs or misconduct. See Powell, 126 Wn.2d at 256.
Trent argues that the prosecution introduced uncharged acts that depicted Trent as a "violent and dangerous person, as well as being a career thief and criminal." Br. of Appellant at 14. For instance, the State elicited testimony that Trent stole several firearms from Bond's father. Trent's counsel objected to the evidence, but only on the grounds that the evidence was hearsay and lacked a foundation. The State elicited testimony from Chief David Eastham that "[Bond] was in on a complaint that she didn't want to go to court over involving a domestic situation with [Trent]." RP (Feb. 9, 2006) at 230. Chief Eatham also testified that although Bond loved Trent, she was "scared to death" of him. RP (Feb. 9, 2006) at 231. Yet Trent's counsel never objected to this testimony.
The State also elicited testimony from Deputy Pat Matlock that Trent had an arrest warrant from the Department of Corrections and that "he was wanted in questioning for some additional charges." RP (Feb. 9, 2006) at 340. Trent's counsel objected to the evidence, but on the grounds that the evidence was irrelevant and unfairly prejudicial under ER 403. The trial court sustained the objection "as far as the latter part of that," and it then instructed the jury "to disregard the statements . . . regarding the reasons looking for Eric Trent except for the DOC warrant for him." RP (Feb. 9, 2006) at 340. Trent's counsel then replied, "Very well." RP (Feb. 9, 2006) at 341. Thus, any error was cured by the trial court's instruction to the jury.
Finally, Trent's failure to specifically object on the record at trial to evidence that he now finds objectionable under ER 404(b) does not create a manifest error affecting his constitutional rights. Once he has waived this right, Trent may not assert it for the first time on appeal. RAP 2.5(a). Trent's claim that the trial court denied his constitutional right to a fair trial, therefore, fails.
III. Ineffective Assistance of Counsel
Trent alleges that his counsel was ineffective for failing to request a jury instruction that unlawful possession requires more than passing control. We disagree.
To establish ineffective assistance of counsel, Trent must show that: (1) his counsel's performance was deficient; and (2) the deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Trent must overcome a strong presumption that his counsel's representation was adequate and effective. McFarland, 127 Wn.2d at 335. Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). And to show prejudice, Trent must establish "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." McFarland, 127 Wn.2d at 335.
Trent argues that his trial counsel should have done more than simply ask the jury whether the "'spirit' of the law" intended to punish someone for unlawfully possessing a firearm for 10 to 15 seconds. Br. of Appellant at 21. As Trent explains, "The law in Washington is clear: unlawful possession requires more than passing control." Br. of Appellant at 20. And because the evidence allegedly supported Trent's defense theory of momentary, temporary, or fleeting control of the firearm, he argues that his trial counsel should have proposed an instruction that the State had the burden to prove a possession that was more than simply a passing control.
Even assuming that it was proper for Trent's trial counsel to propose such an instruction, we find no prejudice. After all, the focus of unlawful possession of a firearm is not on the length of time of possession as Trent suggests, but rather on the quantum of evidence necessary for the State to prove that he had actual control over the firearm. See State v. Staley, 123 Wn.2d 794, 801, 872 P.2d 502 (1994). Washington law does not create a legal excuse for possession based on the duration of the possession. Staley, 123 Wn.2d at 802. As our Supreme Court has stated, "Rather, evidence of brief duration or 'momentary handling' goes to the question of whether the defendant had 'possession' in the first instance. Depending on the total situation, a 'momentary handling,' along with other sufficient indicia of control . . . may actually support a finding of possession." Staley, 123 Wn.2d at 802.
Here, how long Trent handled the firearm was but one factor for the jury to consider in determining whether the State proved that he had dominion and control of, and therefore, constructively possessed, the firearm. Along with the other sufficient indicia of actual control, as discussed above, Trent was not prejudiced by his trial counsel's performance.
IV. Prosecutorial Misconduct
Trent claims that the prosecuting attorney in this case committed misconduct by: (1) calling a witness a liar; (2) unreasonably arguing that a witness was not credible; (3) shifting the burden of proof; and (4) misrepresenting the term "possession." Br. of Appellant at 32-33. Thus, Trent asks this court to reverse. We disagree.
In closing argument, the prosecuting attorney has wide latitude in drawing and expressing reasonable inferences from the evidence. State v. Harvey, 34 Wn. App. 737, 739, 664 P.2d 1281, review denied, 100 Wn.2d 1008 (1983). But the prosecuting attorney's statements to the jury on the law must be confined to the law as set forth in the instructions given by the trial court. State v. Davenport, 100 Wn.2d 757, 760, 675 P.2d 1213 (1984). It is reprehensible for a prosecuting attorney to assert in argument his personal belief in the accused's guilt. State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984). So far as improper argument is concerned, the defendant has the burden of establishing the impropriety of the conduct as well as its prejudicial effect. State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105, cert. denied, 516 U.S. 843 (1995). Reversal is not required if the error could have been obviated by a curative instruction that defense counsel did not request. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).
We review the allegedly improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given by the trial court. State v. Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). Even if the prosecuting attorney's remarks are improper, reversal is not required if they were invited or provoked by defense counsel and are in reply to defense counsel's acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective. Russell, 125 Wn.2d at 86.
In addition, this court presumes that a jury follows the trial court's instructions. State v. Davenport, 100 Wn.2d 757, 763-64, 675 P.2d 1213 (1984).
Failure to object to an allegedly improper remark constitutes a waiver of error, unless the prosecuting attorney's remark was so flagrant and ill intentioned that it caused an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury. Russell, 125 Wn.2d at 86. "In other words, a conviction must be reversed only if there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict." Russell, 125 Wn.2d at 86.
Here, Trent initially notes that he "tried to preempt and avoid the prosecutor's improper comments in a detailed motion in limine." Br. of Appellant at 24. Then, in a conclusory statement in his appellate brief, Trent claims that the trial court "granted the motions in limine in large measure." Br. of Appellant at 24. In contrast, the State alleges that Trent never objected to the prosecuting attorney's alleged misconduct during closing argument.
While it is unclear what effect Trent's motions in limine had on his general obligation to timely and specifically object to the prosecuting attorney's alleged misconduct, we do not decide this issue today. After all, if misconduct occurs, a defendant must promptly ask the trial court to correct it. See State v. Atkinson, 19 Wn. App. 107, 111, 575 P.2d 240, review denied, 90 Wn.2d 1013 (1978); see also Jones v. Hogan, 56 Wn.2d 23, 27-28, 351 P.2d 153 (1960); State v. Smails, 63 Wash. 172, 186-87, 115 P. 82 (1911). Yet, Trent did not request any curative instructions.
First, Trent argues that the prosecuting attorney impermissibly asserted his personal opinion of Bond's credibility. Br. of Appellant at 26. During rebuttal closing argument, the prosecuting attorney argued:
[Bond] did nothing for the State's case. Nothing. I'll admit that. I mean, you heard her. It doesn't take a genius to figure that out. " I took the guns." Think about the immunity. Like I said before, ladies and gentlemen, she can make up whatever story she wants and get away with it and that's what she did. . . . She was helping [Trent] out, helping her old boyfriend out . . . as a biased witness, as a person that [sic] hid him from the law.
RP (Feb. 9, 2006) at 390.
The State concedes that the prosecuting attorney's remarks were problematic. But Trent did not propose a curative instruction. And we agree with the State that a curative instruction would have remedied any error. Therefore, reversal is not required.
Second, Trent argues that the prosecuting attorney unreasonably referred to Bond's immunity. During closing argument, the prosecuting attorney argued:
In addition, Trent claims that the prosecuting attorney has a duty not to call a witness to testify when the State knows that the witness has a valid testimonial privilege. Trent argues that the prosecuting attorney violated this duty when he called Bond to testify. But the State responds that it did not know for certain what testimony she would give. In any case, there is no evidence that Bond invoked her Fifth Amendment privilege before the State called her to testify.
This case is basically a credibility case, ladies and gentlemen. . . . I'm going to start with Ms. Erin Bond and you all heard her testimony. . . . Take the totality of the circumstances into consideration. One, she's at the very least ex-lovers with the Defendant. Okay? Two, she had immunity. She can make up any story she wanted to make up, incriminated herself. . . . She's got the best of both worlds, ladies and gentlemen. She gets to protect — she's protecting her ex-lover, if you will, the Defendant, and she gets to do it by making up a story that she took the weapons because she knows she can't get punished for it. She can say anything. You gotta look for motivation.
RP (Feb. 9, 2006) at 368-69. The prosecuting attorney also argued, "She's not believable. . . . like I said, she can't get in trouble for it so she can say whatever she wants." RP (Feb. 9, 2006) at 370. Finally, during rebuttal closing argument, the prosecuting attorney argued:
That's another issue the Defense Counsel raised, the immunity. Made a big deal out of the whole break. He was in the middle of cross-examination, there was a break, all of a sudden she comes back with immunity. Remember what she said before the break and after the break. The same thing. The same incriminating information.
RP (Feb. 9, 2006) at 389.
Again, even assuming that the prosecuting attorney's remarks were problematic, Trent did not request a curative instruction. A curative instruction would have remedied any error. See Hoffman, 116 Wn.2d at 93. And these remarks were not so prejudicial that a curative instruction would have been ineffective. See Russell, 125 Wn.2d at 86.
Third, Trent argues that the prosecuting attorney shifted the burden of proof. During closing argument, the prosecuting attorney argued:
[Bond] said she took [the firearms] out of the house, gave them to a guy named Dale Hendrickson. You didn't hear from Dale Hendrickson today to say he took the weapon from Ms. Bond, did you? You didn't hear Gary Pittman get up here and testify that he got this firearm from Ms. Bond. You didn't hear that, did you?
RP (Feb. 9, 2006) at 370. During rebuttal closing argument, the prosecuting attorney argued:
Defense counsel is correct that — you know, he touched on this during jury selection too — is, you know, the Defendant doesn't have to do anything. I have the burden to prove this case so he can just sit there. Does he have to sit there? No. Can he call witnesses? Yes, he can.
RP (Feb. 9, 2006) at 390.
Again, the State concedes that at least part of the prosecuting attorney's remarks were problematic. But Trent did not request a curative instruction. Moreover, we note that before the closing arguments, the trial court read the instructions to the jury. Among other things, the trial court instructed the jurors:
The defendant has entered a plea of not guilty. That plea puts in issue every element of each crime charged. The State is the plaintiff and has the burden of proving each element of each crime beyond a reasonable doubt. The defendant has [the] burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. The presumption continues throughout the entire trial unless during your deliberations you find it has been overcome by the evidence beyond a reasonable doubt.
In addition, the prosecuting attorney began his closing argument by stating, "[A]s you heard today in the Instructions, it's actually the State's burden to prove this case beyond a reasonable doubt." RP (Feb. 9, 2006) at 368.
After reviewing the allegedly improper comments in the context of the entire arguments, the evidence addressed in the arguments, and the instructions given by the trial court, a curative instruction would have remedied any error. See Hoffman, 116 Wn.2d at 93. And the prosecuting attorney's remarks were not so prejudicial that a curative instruction would have been ineffective. See Russell, 125 Wn.2d at 86. Therefore, reversal is not required.
Fourth, Trent argues that the prosecuting attorney misrepresented the term "possession." Br. of Appellant at 32. During closing argument, Trent's trial counsel argued that "the spirit of the law" did not intend to punish someone for unlawfully possessing a firearm for 10 to 15 seconds. RP (Feb. 9, 2006) at 380-81. Then, in his rebuttal closing argument, the prosecuting attorney argued:
And there's — you know, I went into this a little bit but just one more point about the whole law, spirit of the law. Defense Counsel gets up here and says, " Is that what the law intended?" Did the law intend to prevent a person convicted of a serious offense from adjusting a scope on a rifle that will fire? Yes, it is, ladies and gentlemen. It is.
RP (Feb. 9, 2006) at 392.
The State essentially concedes error by agreeing that the prosecuting attorney could have been "more precise in delineating all of the parameters surrounding the concept of passing control." Br. of Resp't at 30. But again, Trent did not request a curative instruction. Moreover, the prosecuting attorney made these remarks in reply to defense counsel's statements. And before the closing arguments, the trial court instructed the jurors:
The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers' statements are not evidence. The evidence is the testimony of the witnesses. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions.
CP at 52 (emphasis added). The trial court then instructed the jurors:
Possession means having a firearm in one's custody and control. It may be either actual or constructive. Actual possession occurs when the weapon is in the actual physical custody of the person charged with possession. Constructive possession occurs when there is no actual physical possession but there is dominion and control over the item, and such dominion and control may be immediately exercised.
CP at 60.
Again, after reviewing the allegedly improper comments in the context of the entire arguments, the evidence addressed in the arguments, and the instructions given by the trial court, a curative instruction would have remedied any error. See Hoffman, 116 Wn.2d at 93. And the prosecuting attorney's remarks were not so prejudicial that a curative instruction would have been ineffective. See Russell, 125 Wn.2d at 86. Therefore, reversal is not required.
Affirmed.
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.
HUNT, J., VAN DEREN, A.C.J., concur.