STATE v. REBOLLAR No. 39216-0-II.
STATE OF WASHINGTON, Respondent. v. SALVADOR GOMEZ REBOLLAR, Appellant.
Court of Appeals of Washington, Division Two.
Filed: August 5, 2010.
Counsel for Appellant(s), Patricia Anne Pethick, Attorney at Law, Po Box 7269, Tacoma, WA, 98417.
Counsel for Respondent(s), Edward Gene Holm, Attorney at Law, Thurston County Prosecuting Attorney, 2000 Lakeridge Dr Sw # 2, Olympia, WA, 98502-6001.
VAN DEREN, C.J.
Salvador Gomez Rebollar appeals his conviction for violating a no contact order protecting his wife, Josie Gomez, arguing that (1) the prosecutor committed misconduct, (2) he received ineffective assistance of counsel, and (3) the evidence was insufficient to support his conviction. We affirm.
On January 2, 2009, Thurston County Deputy Sheriff Malcolm McIver stopped a car because its license number indicated that the registered owner had a suspended driver's license. McIver identified the driver as Salvador Gomez Rebollar. McIver observed that there was "an adult female and several children" in the car. Report of Proceedings (RP) at 18. He identified the woman as Josie Gomez. McIver arrested Rebollar for driving on a suspended license and placed him in his patrol car.
McIver reviewed the information he received when he checked the license number and observed that Rebollar was subject to a no contact order protecting Gomez. Rebollar told McIver that he was aware of the no contact order but that he had to "provide for his family" and that they were "just coming back from . . . Costco." RP at 23. McIver spoke to Gomez again and confirmed her identity through her driver's license and Washington State identification card. Because she had a valid driver's license, McIver told her that she could drive the car away. McIver arrested Rebollar for violating the no contact order.
On January 6, 2009, the State charged Rebollar with one count of violating the no contact order. At trial, the State admitted a Department of Licensing photograph of Josie Gomez, who McIver identified as the woman present in the car on the day of Rebollar's arrest.
Rebollar, with the assistance of an interpreter, testified that he was aware of the no contact order, but denied that he was with Gomez when McIver arrested him. He stated that he was with his girl friend, Jenny Sanchez, Sanchez's child and his three children with Gomez. Rebollar admitted that there was "confusion" and "misunderstanding" when McIver asked him whether the woman in the car was Gomez, but added that he did not tell McIver that Gomez was the woman in the car. RP at 45-46. He stated that he speaks "some English" and that he "struggle[s] with it," but that he understood English well enough to have a conversation with McIver.
In rebutting Rebollar's closing argument, the State argued the following:
RP at 80-81. The defense did not object to this argument. The jury found Rebollar guilty of violating the no contact order. The court sentenced Rebollar to 12 months plus one day of confinement.
I. Prosecutorial Misconduct
Rebollar argues that the State committed prosecutorial misconduct when, in closing, it improperly shifted the burden of proof to Rebollar. Specifically, he contends that when the prosecutor commented that "[n]o one named Jenny has testified today saying that she was in the car," RP at 81, it improperly "impl[ied] that the defense has a duty to present evidence." Br. of Appellant at 7 (underline omitted). We hold that this argument does not constitute prosecutorial misconduct.
A. Standard of Review
Prosecutorial misconduct is grounds for reversal only when the conduct "was both improper and prejudicial in the context of the entire record and circumstances at trial." State v. Hughes, 118 Wn.App. 713, 727, 77 P.3d 681 (2003). Misconduct is "prejudicial" only if there is a substantial likelihood that it affected the jury's verdict. State v. Pirtle, 127 Wn.2d 628, 672, 904 P.2d 245 (1995). The defendant bears the burden of showing both that the conduct was improper and that it caused prejudice. Hughes, 118 Wn. App. at 727.
When the defendant fails to object to a comment in the prosecutor's closing argument, we do not review the alleged misconduct unless the comment is "so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997). Otherwise, a defendant's failure to object waives the error. Stenson, 132 Wn.2d at 719. We analyze prejudice in the context of the total argument, the issues, the evidence and the instructions. State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008).
B. No Misconduct
Because Rebollar did not object to the prosecutor's comments at trial, we review the alleged misconduct under the "enduring and resulting prejudice" standard.
The only comment that Rebollar points to as grounds for misconduct is the State's closing argument that "[n]o one named Jenny has testified today saying that she was in the car." RP at 81. Rebollar claims that this comment "impl[ies]" that the burden improperly shifted to him. Br. of Appellant at 7 (underline omitted). As Rebollar acknowledges, the identity of the woman in the car is an "essential fact," that he raised in his closing argument. Br. of Appellant at 8. The prosecutor, in rebuttal, made this comment in the context of arguing that, in light of McIver's testimony, the evidence does not support the defense theory that the woman was not Gomez. See Jones, 71 Wn. App. at 809; see also Russell, 125 Wn.2d at 87. Further the prosecutor made this comment soon after he stated, "[Defense counsel] is absolutely correct that he does not have to prove anything; that the defendant did not have to take the stand; that the burden is solely mine." RP at 80-81. Thus, the isolated comment that Jenny Sanchez did not testify does not constitute a misstatement of the burden of proof.
II. Ineffective Assistance
Rebollar argues that his counsel's failure to object to the prosecutor's comment constitutes ineffective assistance of counsel. To prevail on an ineffective assistance of counsel claim, the defendant must show that defense counsel's objectively deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L. Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Because we hold that the prosecutor did not misstate the law in his comment and merely argued that the evidence did not support the defense theory, defense counsel's failure to object was not deficient performance and Rebollar's argument fails.
III. Sufficiency of the Evidence
Rebollar argues that there was insufficient evidence to find that the woman in the car was Gomez, which was "[t]he sole issue in dispute." Br. of Appellant at 13. We review a challenge to the sufficiency of the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn.App. 410, 415-16, 824 P.2d 533 (1992). "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "Substantial evidence `is evidence sufficient to persuade a fair-minded, rational person of the truth of the finding.'" State v. Levy, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006) (quoting State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999)).
Rebollar's testimony that the woman was Sanchez directly contradicts McIver's testimony that the woman was Gomez. We defer to the fact finder on issues of conflicting testimony and, thus, do not reach this issue. Walton, 64 Wn. App. at 415-16. Based on the evidence at trial, we hold that any rational person could have found Rebollar guilty of violating the no contact order.
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.
BRIDGEWATER and HUNT, JJ., concur.
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