Opinion
No. 61632-3-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-1-08359-4, Michael Heavey, J., entered May 5, 2008.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Ellington, JJ.
Prosecutors are not permitted to express their personal beliefs regarding the credibility of witnesses. It is proper, however, for the prosecutor to draw inferences from evidence admitted at trial. In so doing, the prosecutor may urge the jury to consider that the defendant's conduct exhibited his guilt. Here, the defendant attempted to cash a $500 check. When the teller called to verify the instrument, the defendant left the store, leaving the check behind. The prosecutor's urging the jury to see that departure as evidence of the defendant's guilt was merely an inference drawn from the evidence presented. The trial court is affirmed.
FACTS
Hermenegildo Solis-Avila attempted to cash a check for $500 at the Money Tree on Rainier Avenue South. Because the Money Tree had not previously cashed a check from this account, the teller called the alleged check writer, Kimberly Smith, to verify the check's authenticity. Smith told the teller that she had not authorized the check. By the time the teller finished speaking with Smith, Solis-Avila had left the Money Tree.
At his trial for forgery, Solis-Avila testified in his own defense. He said that his friend, Artureto, had asked him to cash the check because Artureto did not have any identification. Solis-Avila related that Artureto took the check out of his pants pocket before he gave it to him. The amount, date, and payor's signature were already filled in. Artureto inserted Solis-Avila's name on the payee line. Solis-Avila testified that he did not know Artureto's last name or where he lived. The only connection he had to Artureto was through another person who has since been deported. Approximately a year before trial and before Solis-Avila knew he was charged with the forgery he saw Artureto but never asked him about the check. The jury found Solis-Avila guilty of forgery and he appeals.
ANALYSIS
Solis-Avila assigns error to two of the prosecutor's statements made during closing argument, both of which defense counsel objected to at trial. We review the prosecutor's statements in the context of the entire argument, the issues of the case, the evidence addressed in the argument, and the jury instructions.
State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).
First, he contends that the prosecutor attacked his credibility as a witness when he called for the jury to view Solis-Avila's departure from the Money Tree as evidence of guilt. This argument is not a comment on Solis-Avila's credibility. The teller testified that Solis-Avila left while she was attempting to verify the check's authenticity. Solis-Avila testified that he left only after he was told that the check was bad. When making his closing argument, the prosecutor was entitled to draw the reasonable inference that Solis-Avila left the Money Tree because he knew the check was bad.
State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995) (a prosecutor has wide latitude in drawing and expressing reasonable inferences from the evidence).
Solis-Avila also contends the prosecutor interjected his personal opinion when he urged the jury to look at the appearance of the forged check and stated, "Look at that closely. And just on its face the check appeared questionable to me." Solis-Avila argues that the statement amounted to a comment on the prosecutor's personal belief.
Comments reasonably inferred from the evidence do not constitute improper opinion. The evidence showed that the check did not appear previously folded as if it had come from someone's pocket as Solis-Avila had claimed. Solis-Avila's name was inserted in the payee line by someone he hardly knew. A prosecutor may argue inference regarding witness credibility based on the evidence in the record. Solis-Avila denied that he knew the check was a forgery. But a reasonable person would question the authenticity of an instrument from someone known only by their first name. Solis-Avila testified that he had to show his license to Artureto so that that Artureto could write in his name as the designated payee. The teller testified that Solis-Avila left before she finished her call with Smith, while Solis-Avila said he left after he was told the check was bad. Here, the comments were reasonable inferences drawn from the evidence, not the expression of personal opinion.
State v. McFarland, 73 Wn. App. 57, 65-66, 867 P.2d 660 (1994).
Millante, 80 Wn. App. at 250-51.
Even if we were to construe the prosecutor's comments as improper, such statements did not deprive Solis-Avila of a fair trial. A prosecutor's comments deprive a defendant of a fair trial if, (1) the statement was improper, and (2) there is substantial likelihood that the statement prejudiced the defendant by affecting the jury's verdict. At trial, Solis-Avila claimed that he did not know that the check was a forgery. Strong evidence, however, supports the contrary. On these facts, we believe it is highly improbable that the verdict would have been different but for the prosecutor's comments during closing argument. Further, the jury received instructions advising them that they were the decision makers with regard to the credibility of each witness.
State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984).
11 Washington Practice: Washington Pattern Jury Instructions: Criminal 1.02, at 13-15 (3d ed. 2008).
We find no prosecutorial misconduct and hold the trial court properly overruled defense counsel's objections to the prosecutor's statements during closing arguments. The judgment and sentence is affirmed.
WE CONCUR.