* State Of Washington, Respondent V. Thomas Joseph Feely, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

STATE OF WASHINGTON, No. 72450-9-|

Respondent,
THOMAS JOSEPH FEELY, PUBLISHED OPINION

Appellant.

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V. )
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) FILED: February 22, 2016
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VERELLEN, J. — Under RCW 9.94A.834, a trial court may impose an
endangerment enhancement for the crime of attempting to elude a pursuing police
vehicle when “one or more persons other than the defendant or the pursuing law
enforcement officer” were endangered by the actions of the defendant during the
commission of the crime. We conclude the plain meaning of the enhancement extends
to endangering officers who were not following the defendant. Therefore, we reject
Feely’s claim of prosecutorial misconduct for arguing to the jury that officers who
deployed spike strips were endangered by his driving.

Feely’s other claims of prosecutorial misconduct also fail because he does not
show the challenged statements, when viewed in context, resulted in prejudice. And
because he does not show prejudice from these statements, his attorney’s failure to

object does not support a claim for ineffective assistance of counsel. We affirm.

No. 72450-9-1/2

FACTS

Shortly after midnight, Trooper Travis Lipton was parked in an unmarked vehicle
on the shoulder of the northbound onramp to Interstate 5. A pickup truck driven by
Thomas Feely passed very close to Trooper Lipton’s car while merging onto the
freeway. Trooper Lipton observed the truck drift into the left lane before returning to the
right lane. He followed Feely.

Once Trooper Lipton caught up to Feely, he started his car’s audio and video
recording system. He observed Feely drift “back and forth within the right lane
continuously,” and cross the fog line and the “center skip line” dividing the two lanes.’
After Feely failed to signal a lane change, Trooper Lipton activated his siren and
emergency lights.

Feely continued northbound. Trooper Lipton advised dispatch of Feely’s failure
to stop. Feely took the next exit and ran the stop sign at the top of the exit ramp. Feely
continued on the two-lane road, greatly exceeding the speed limit and drifting “over onto
the oncoming lane frequently.” He bypassed two cars that slowed or stopped as a
result. Trooper Lipton requested dispatch contact other troopers to deploy spike strips.

Police set up a spike strip, but Feely went around it. Sergeant Larry Flynn set up
another spike strip. Feely attempted to drive around it but “immediately locked up” his
brakes.° He “slid almost the whole way” towards Sergeant Flynn and stopped just short

of where Sergeant Flynn was standing.* Feely then “started to jerk forward” towards

1 Report of Proceedings (RP) (July 28, 2014) at 59, 62.
2 Id. at 68.

3 RP (July 29, 2014) at 184.

* Id.

No. 72450-9-1/3

Sergeant Flynn by the side of the road.5 Sergeant Flynn released some slack on the
spike strips so he could get farther off the road. Feely ran over one of the spike strips
with his front left tire and sped away. Trooper Lipton maintained his pursuit.

After turning down a private driveway, Feely drove his truck into a swamp. He
ran into the woods, leaving one shoe behind in the mud. More police officers shortly
arrived, and after searching with two police dogs, they found Feely hiding in a tree. He
had no shoes on and his clothes were wet. The officers took Feely into custody and
smelled alcohol on his breath.

Trooper Lipton took Feely to a hospital. About an hour later, Trooper Lipton
collected Feely’s blood, which registered a blood alcohol level of 0.13.

The State initially charged Feely with one count of felony driving under the
influence (DUI) and one count of attempting to elude a pursuing police vehicle with an
endangerment sentencing enhancement. The State later amended the information to
allege an aggravating circumstance under RCW 9.94A.535(2)(c): “[Feely] has
committed multiple current offenses and [his] high offender score results in some of the
current offenses going unpunished.”6

At trial, Feely stipulated that he had four prior qualifying convictions, elevating the
DUI to a felony. The jury found Feely guilty as charged. In a special verdict, the jury
also found that a “person, other than [Feely] or a pursuing law enforcement officer,
[was] endangered .. . by the actions of [Feely] during his commission of the crime of

Attempting to Elude a Police Vehicle.”’

° Id.
8 Clerk’s Papers (CP) at 15-16.
7 Id. at 53-54.

No. 72450-9-1/4

The trial court sentenced Feely to 60 months for the felony DUI. The court
sentenced him to 29 months for attempting to elude, plus 12 months and one day for
the endangerment enhancement. The court ordered “[ajll counts shall be served
consecutively, including the portion of those counts for which there is an
enhancement.”® The court imposed this exceptional sentence after expressly finding
that “the defendant has committed multiple current offenses and the defendant’s high
offender score results in some of the current offenses going unpunished.”®

Feely appeals.

ANALYSIS
|. PROSECUTORIAL MISCONDUCT

Feely asserts three instances of prosecutorial misconduct violated his due
process right to a fair trial. To prevail on a claim of prosecutorial misconduct, he “bears
the burden of proving, first, that the prosecutor’s comments were improper and, second,
that the comments were prejudicial.”"°

a. Argument about Endangerment of Spike Strip Officers

Feely claims the prosecutor misstated the law when he argued the jury “could
find Feely endangered someone other than himself or a pursuing police officer if it found
he endangered the officers who deployed the spike strips.”"’ We disagree.

During closing, the prosecutor argued:

8 Id. at 70.

9 Id. at 76.

10 State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007).
"! Appellant's Br. at 16.

No. 72450-9-1/5

So the question becomes who is endangered? Well, certainly
[Feely] was endangering himself. Certainly he was endangering Trooper
Lipton, and perhaps during a part of that, he was endangering Officer
Pike, because Officer Pike was behind Lipton and suddenly found a tire
coming his way, but those would not qualify for you to answer yes,
because it’s a pursuing officer or a defendant. It has to be someone else
that’s in danger.

Of course, there were other people out on the road. You can count
them. There’s | think three or four vehicles. Some that pulled over. Some
were driving by at various points, but certainly on Kickerville, . . . he comes
to a place where, unfortunately, two vehicles driving in opposite directions
are in the same place. .. . Mr. Feely has to dart through, between the two
of them. So those, those individuals are, certainly could, you could find
that they're endangered by the driving of Mr. Feely on that night.

Other possibilities, you know, | don’t know how many different
vehicles are out there, the officers that are not pursuing, [who] did apply
the stop sticks. They can be endangered by his driving, and | think at one
point in the video, you can see the first officer... . [ylou can see him
comf[e] out and try to deploy the sticks and run back, and you can find that
he’s endangered by the Defendant driving as he is."2]

Under RCW 9.94A.834,

(1) The prosecuting attorney may file a special allegation of
endangerment by eluding in every criminal case involving a charge of
attempting to elude a police vehicle under RCW 46.61.024, when
sufficient admissible evidence exists, to show that one or more persons
other than the defendant or the pursuing law enforcement officer were
threatened with physical injury or harm by the actions of the person
committing the crime of attempting to elude a police vehicle.

(2) In a criminal case in which there has been a special allegation,
the state shall prove beyond a reasonable doubt that the accused
committed the crime while endangering one or more persons other than
the defendant or the pursuing law enforcement officer. The court shall
make a finding of fact of whether or not one or more persons other than
the defendant or the pursuing law enforcement officer were endangered at
the time of the commission of the crime, or if a jury trial is had, the jury
shall, if it finds the defendant guilty, also find a special verdict as to
whether or not one or more persons other than the defendant or the

12 RP (July 30, 2014) at 453-54 (emphasis added).

No. 72450-9-1/6

pursuing law enforcement officer were endangered during the commission
of the crime.!"9)

We review questions of statutory interpretation de novo.'* “The purpose of
statutory interpretation is ‘to determine and give effect to the intent of the legislature.’
“To determine legislative intent, we first look to the plain language of the statute
considering the text of the provision in question, the context of the statute, and the
statutory scheme as a whole.”'® We give “undefined terms their plain and ordinary
meaning unless a contrary legislative intent is indicated.”"” “If the statute is
unambiguous after a review of the plain meaning,” our inquiry ends.'®

The statute does not define “pursuing law enforcement officer.” The dictionary
defines “pursue” as “to follow [ ] determinedly in order to overtake, capture, kill, or
defeat.”'?

We conclude the plain meaning of the exclusion of any endangerment to “the
pursuing law enforcement officer” relates to the risk of harm to the “following” police
officer. Under this plain meaning, the spike strip officers were not “pursuing police
officers” because they were not following Feely. The legislature could have also
excluded “apprehending officers” from the enhancement, but it did not. Applying the

plain meaning, we conclude the statute is unambiguous.

13 RCW 9.94A.834 (emphasis added).
14 State v. Evans, 177 Wn.2d 186, 192, 298 P.3d 724 (2013).
1S Id. (quoting State v. Sweany, 174 Wn.2d 909, 914, 281 P.3d 305 (2012)).

16 State v. Reeves, 184 Wn. App. 154, 158, 336 P.3d 105 (2014) (citing Evans,
177 Wn.2d at 192).

7 Id.
18 State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010) .
19 WEBSTER’S THIRD NEW INT'L DICTIONARY 1848 (2002).

No. 72450-9-1/7

Contrary to Feely’s arguments, this construction of the statute is logical. The
crime necessarily requires an officer in a police vehicle pursuing a defendant trying to
elude that officer. The enhancement logically imposes a greater punishment if there is
danger to others than the defendant and the pursuing officer. If officers who are not
following are endangered, then the statute increases punishment based upon that risk
that is not inherent in the mandatory elements of the crime.2°

Therefore, we conclude the prosecutor did not misstate the law in arguing that
the jury could consider Feely’s endangerment of the spike strip officers for the
sentencing enhancement.

b. Misstating the Burden of Proof

Feely argues that the prosecutor committed prejudicial misconduct by misstating
the reasonable doubt standard in closing rebuttal argument.
A prosecutor who addresses the reasonable doubt standard in closing argument

acts improperly by “‘trivializ[ing] and ultimately fail[ing] to convey the gravity of the
State’s burden and the jury’s role in assessing’ the State’s case against the
defendant.”2' In essence, the State acts improperly when it mischaracterizes the

standard as requiring anything less than an abiding belief that the evidence presented

establishes the defendant's guilt beyond a reasonable doubt.22

20 Even if we considered the enhancement ambiguous, the legislative history
relied upon by Feely does not compel a different result. The bill report gives examples
of the risk to children and bystanders created by eluding defenders, but still returns to
the general risk to “society as a whole.” H.B. REP. on Engrossed Substitute H.B. 1030,
60th Leg., Reg. Sess. (Wash. 2008).

21 State v. Johnson, 158 Wn. App. 677, 684, 243 P.3d 936 (2010) (quoting State
v. Anderson 153 Wn. App. 417, 431, 220 P.3d 1273 (2009)).

22 See State v. Pirtle, 127 Wn.2d 628, 657-58, 904 P.2d 245 (1995); see also
State v. Osman, No. 71844-4-1, 2016 WL 298802, at *7 (Wash. Ct. App. Jan. 25, 2016).

No. 72450-9-1/8

Feely contends the prosecutor “trivialized and ultimately failed to convey the
gravity” of the State’s burden of proof “in arguing the jury had to convict if it ‘knew” he
was guilty.27 The prosecutor told the jury that “[i]t can be very frustrating to have a jury
come back and say we all knew he was guilty, but you didn’t prove it beyond a
reasonable doubt. Those are inconsistent.”24

It trivializes the burden of proof to suggest that jurors can ignore the reasonable
doubt instruction as long as they “know” the defendant is guilty. “Knowing” a defendant
is guilty is not necessarily inconsistent with having a reasonable doubt. But Feely does
not establish he is entitled to relief on appeal. First, Feely did not object at trial and
therefore, he is deemed to have waived the error “unless the prosecutor's misconduct
was so flagrant and ill-intentioned that an instruction could not have cured the resulting
prejudice.” Under this heightened standard, Feely must show that “(1) ‘no curative
instruction would have obviated any prejudicial effect on the jury’ and (2) the misconduct
resulted in prejudice that ‘had a substantial likelinood of affecting the jury's verdict.’”26
“[R]emarks are not per se incurable simply because they touch upon a defendant's
constitutional rights."*”? Feely does not establish that any prejudice could not have been

cured by a curative instruction.

23 Appellant’s Br. at 24.
24 RP (July 30, 2014) at 482.

26 State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012) (citing State v.
Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997).

6 Id. at 761 (quoting State v. Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43
(2011).

27 Id. at 763; accord State v. Smith, 144 Wn.2d 665, 679, 30 P.3d 1245, 39 P.3d
294 (2001) (“Some improper prosecutorial remarks can touch on a constitutional right
but still be curable.”); see also State v. Warren, 165 Wn.2d 17, 28, 195 P.3d 940 (2008)
(prosecutor's flagrantly improper comments in closing argument undermining the

No. 72450-9-1/9

Second, Feely cannot show a substantial likelinood that the statements affected
the jury’s verdict. In analyzing the prejudicial effect of a prosecutor's improper
comments, we do not look at the comments in isolation, but in the context of the total
argument, the issues in the case, the evidence, and the instructions given to the jury.

Immediately following the statements, the prosecutor accurately restated the
reasonable doubt standard:

If you all know the Defendant committed a crime, and committed all of the,

or all of the elements are proven, then you are convinced beyond a

reasonable doubt. It’s not just that | knew that it happened, or | knew that

he was guilty. So think about [it] in those terms. 2°!

Taken in context of the prosecutor's total rebuttal closing argument, the
prosecutor clearly reiterated and emphasized the State’s burden of proof:

| have to prove to 12 of you beyond a reasonable doubt that | have met all

of the elements of each of those crimes in order for you to return a guilty
verdict.[$°

There’s a presumption of innocence, and the Defendant doesn’t
have to prove anything to you. It’s my burden. The State[,] as a
representative of the people of this State, it’s my burden to prove those
elements beyond a reasonable doubt, and I’m arguing to you that | have
proven those elements.!3!

The burden is what do you know? What do you believe, have an
abiding belief in were the facts?!)

presumption of innocence were cured by trial court giving a correct and thorough
curative instruction on the reasonable doubt standard).

28 Yates, 161 Wn.2d at 774.
29 RP (July 30, 2014) at 482.
30 Id. at 476.

31 Id. at 476-77.

32 Id. at 477.

No. 72450-9-1/10

There is an instruction on beyond a reasonable doubt... . It’s one
for which a reason exists. It may arise from evidence or the lack of
evidence, It is such a doubt that would exist in the mind of a reasonable
person after fully, fairly, and carefully considering all of the evidence or the
lack of evidence, and when you look at all of the pieces of evidence here,
the reasonable conclusion is that Mr. Feely was driving that vehicle.®5]

So | think | was on the reasonable doubt instruction and what it

means, and it’s a personal thing to each of you. . . . It's how you evaluate

the evidence and how you match it up to, to the law as given to you by the

Court. It's when you're convinced. It’s not when you just think it might

have happened, but when you're convinced it happened. You know it

because you believe it happened, and you're going to believe it today.

You're going to believe it tomorrow. You're going to believe it two months

from now when you’re telling your cousin about it. If you have reached

that point, then you’re convinced beyond a reasonable doubt. That's,

that’s the way to look at this.

These statements corresponded with the trial court's reasonable doubt
instruction. Juries are presumed to follow the court's instructions.*°

Moreover, Feely’s crime was captured on Trooper Lipton’s vehicle's video
recording system and admitted at trial. This video showed one driver driving a truck
registered to Feely’s parents. The officers testified that they followed Feely down the
private driveway, where they found his truck stuck in a swamp with the driver side
window partially rolled down and the driver side door ajar. The passenger side door
was closed and an expired Washington State identification card belonging to Feely was

in the center console. The officers also testified that they heard what “sounded like one

person” “making his way through the brush and the sticks,” and that they did not hear

33 Id. at 479.
34 Id. at 481-82.
35 Warren, 165 Wn.2d at 28.

10

No. 72450-9-1/11

any sounds coming from any other direction.*® Moreover, police dogs, who arrived
within five minutes of finding Feely’s truck, were able to locate him hiding nearby in a
tree. These dogs led the officers to the same tree. Feely smelled of alcohol, and
several hours after the incident, had a blood alcohol level of 0.13. The only element at
issue at trial was identity. Given the multiple, corroborating facts identifying Feely as
the driver of the truck, compelling evidence supports his convictions.

Feely relies on State v. Johnson, where, even absent an objection, the court

concluded the prosecutor’s misstatements were flagrant and ill intentioned and required
reversal.°’ But in Johnson, the prosecutor used a puzzle analogy to explain the “abiding
belief’ requirement of the reasonable doubt standard.*® The prosecutor further stated
that to “be able to find reason to doubt, you have fo fill in the blank, that’s your job.”°°
The Johnson court held the prosecutor's statements improperly “trivialized the State’s
burden, focused on the degree of certainty the jurors needed to act, and implied that the
jury had a duty to convict without a reason not to do so.”4°

Feely argues the prosecutor's minimization of the State’s burden of proof here is
analogous to the prosecutor’s improper statements in Johnson. But the prosecutor here
never implied the jury had a duty to convict without a reason to do so or ever suggested
that the burden of proof shifted to Feely. In context of the total closing argument, we

conclude the prosecutor did not trivialize the State’s burden.

36 RP (July 28, 2014) at 83.

37 458 Wn. App. 677, 685-86, 243 P.3d 936 (2010).
38 Id. at 682.

39 Id. (emphasis added).

40 Id. at 685.

11

No. 72450-9-1/12

Because Feely did not object at trial and fails to establish any resulting prejudice,
his claim fails.

c. Argument about Prior Offenses as Motive to Flee

Feely contends the prosecutor violated the trial court’s limiting instruction when
he argued the jury could consider Feely’s stipulated prior DUIs not only to prove he had
prior qualifying convictions elevating the DUI to a felony, but also to prove he had a
“motive to flee.”*'

Here, Feely requested and received a limiting instruction under ER 404(b):

Evidence of other crimes which occurred prior to April 9th, 2014
may only be considered for the limited purpose of determining whether Mr.
Feely has the requisite prior convictions to make this case a felony DUI.
The evidence is not to be used or considered for the purpose of proving
the character of a person in order to show that the person acted in
conformity with that character. |421

During the prosecutor’s rebuttal closing argument, he argued:

Well, Mr. Feely has the four priors, we know that, four prior DUls.
You can’t use that, you cannot use that to say that because he was
convicted four times of driving under the influence, he must have been
driving under the influence this time. It’s not a character thing. You can't
do that.

But what you can do is use that for another purpose, the element of
the offense, a felony DUI[,] and motive. Would somebody who is driving
under the influence want to be caught having four prior DUI convictions?
Of course not. And that gives him a motive to flee police, and to do so ina
very dangerous, reckless manner, and that’s what you see on that video.

What other motive would he have to flee the police if he was just, if he
wasn’t the driver? Because when you flee [in] that truck, you sure look like
you're the driver at that point, don’t you?!43!

41 Appellant's Br. at 26.
42 CP at 35 (emphasis added).
43 RP (July 30, 2014) at 484-85.

12

No. 72450-9-1/13

Defense counsel did not object during argument.

When a trial court has ruled in a motion in limine that evidence of prior
convictions are limited to proving only the fact of prior convictions and when the express
limiting instruction given by the court allows that evidence “only” as proof of prior
convictions, if the State wants to use the evidence for another ER 404(b) purpose, then
it must ask the trial court for such a ruling.*4 Here, the prosecutor’s argument is
inconsistent with the court's instruction that the evidence could “only be considered for
the limited purpose” of determining whether Feely had the requisite prior convictions to
make the case a felony DUI, and therefore is improper.

But because Feely fails to show resulting prejudice in view of the compelling
evidence of his guilt noted above, his claim fails.

ll. INEFFECTIVE ASSISTANCE OF COUNSEL

In the alternative, Feely argues he was denied effective assistance because
defense counsel failed to object to the prosecutor’s closing arguments. We disagree.
We review ineffective assistance claims de novo.** To establish an ineffective
assistance claim, a defendant must show deficient performance and resulting

prejudice.*®

44 See State v. Fisher, 165 Wn.2d 727, 748-49, 202 P.3d 937 (2009) (holding
where a trial court expressly conditions the admission of evidence of physical abuse on
defense counsel's making an issue of molestation victim's delay in reporting, the
prosecutor's preemptive introduction of that evidence contravened the court's pretrial
ruling and the requirements of ER 404(b)).

45 State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

46 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).

13

No. 72450-9-1/14

Counsel's performance is deficient if it falls “below an objective standard of
reasonableness.”4” To establish deficient performance, the defendant must show the
absence of any “conceivable legitimate tactic” supporting counsel’s action.4® We
strongly presume counsel's performance was reasonable.49

To establish prejudice, the defendant must show there is a reasonable probability
that, but for the deficient performance, the outcome would have been different.°° “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.”5' Failure to establish either prong of the test is fatal to an ineffective
assistance of counsel claim.5?

Because the prosecutor’s argument about the endangerment enhancement was
not improper, defense counsel's performance was not deficient. Even assuming
deficient performance as to the prosecutor's two other arguments, Feely fails to show
that the arguments themselves prejudiced him, and therefore, he does not show
prejudice from defense counsel's failure to object.

Ill. EXCEPTIONAL SENTENCE

At sentencing, Feely had an offender score of 14 for each count. The trial court

imposed the 12 month and one day endangerment enhancement to increase the base

sentence for the attempting to elude conviction. It also imposed consecutive sentences

47 State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001).
48 State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).

49 Strickland, 466 U.S. at 690; State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d
1251 (1995).

50 Nichols, 161 Wn.2d at 8.
51 Strickland, 466 U.S. at 694.
52 Id. at 700.

14

No. 72450-9-1/15

for the attempting to elude and felony DUI convictions. Feely contends the court
exceeded its authority in imposing the exceptional sentence. He focuses upon the trial
court’s oral comments that it was concerned that the endangerment enhancement
would not have any impact on his punishment.

To reverse an exceptional sentence, we must determine whether

(1) under a clearly erroneous standard, there is insufficient evidence in the

record to support the reasons for imposing an exceptional sentence;

(2) under a de novo standard, the reasons supplied by the sentencing

court do not justify a departure from the standard range; or (3) under an

abuse of discretion standard, the sentence is clearly excessive or clearly

too lenient.3!

We review Feely’s challenge to the trial court’s reasons for imposing an exceptional
sentence de novo.

We conclude the trial court properly inposed an exceptional sentence based on
Feely’s high offender score. A trial court may impose a consecutive sentence when it
finds that the “defendant has committed multiple current offenses and the defendant's
high offender score results in some of the current offenses going unpunished.”°> These

are referred to as “free crimes.”5> Here, the court imposed consecutive sentences

based on the free-crimes principle.°’ The trial court's written findings of fact expressly

53 State v. France, 176 Wn. App. 463, 469, 308 P.3d 812 (2013);
RCW 9.94A.585(4); State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005).

54 France, 176 Wn. App. at 469.
55 RCW 9.94A.535(2)(c).
56 France, 176 Wn. App. at 468.

57 “Consecutive sentences may only be imposed under the exceptional sentence
provisions of RCW 9.94A.535.” RCW 9.94A.589(1)(a).

15

No. 72450-9-1/16

state that “the defendant has committed multiple current offenses and the defendant's
high offender score results in some of the current offenses going unpunished.”°®

Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the sentencing
range increases based on the defendant's offender score, up to a score of 9.59 Based
on Feely’s offender score of 14 for each count, he faced a 60-month sentence for the
felony DUI conviction alone. Therefore, any sentence for eluding, with or without the
endangerment enhancement, would have been subsumed.

Accordingly, we conclude the trial court did not exceed its authority in sentencing
Feely to consecutive terms. Even though the court referred to the endangerment
enhancement, it is clear the court considered that “there’s no benefit to the community”
by a concurrent sentence.® And Feely cites no authority to support his assertion that a
court may not take a sentencing enhancement into account when imposing consecutive
sentences.

IV. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

In his statement of additional grounds, Feely argues his counsel was ineffective
when she failed to interview the State’s expert on dog tracking. Failure to investigate or
interview witnesses may support an ineffective assistance claim.®' But Feely’s counsel
thoroughly cross-examined and recross-examined the State’s expert. Even assuming
deficient performance, Feely fails to establish prejudice in view of the compelling

evidence of his guilt.

58 CP at 76.

59 RCW 9.94A.510.

60 RP (Aug. 18, 2014) at 25.

61 State v. Ray, 116 Wn.2d 531, 548, 806 P.2d 1220 (1991).

16

No. 72450-9-1/17

Feely also argues the prosecutor committed misconduct during closing argument
by playing the State’s video evidence and improperly commenting on the evidence. For
example, the prosecutor made a comment that something had been thrown out of
Feely’s truck during the pursuit. The prosecutor continued, “It takes a little while to see
it, but when you're looking at it, you can see it going out the driver's side window and go
over to the right, indicating that there’s nobody in that right passenger seat.”62 Defense
counsel objected, arguing the prosecutor's comment was “a misstatement of what the
facts show.”©> The trial court instructed the jury that the prosecutor could not ask them
“to speculate about what they might have seen here” but that they could “see the video”
and “make their own decisions.”"64 Even assuming improper conduct, Feely fails to
establish prejudice.

We affirm.

a 7
WE CONCUR: if

Speeteron, CS — legetercl J

62 RP (July 30, 2014) at 457-58.
63 Id. at 458.
64 Id. at 457-58.

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