State Of Washington, Respondent V. Alexis J. Schlottmann, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
ALEXIS J. SCHLOTTMANN,
Appellant.
No. 71661-1-1 	~ 	=g§
DIVISION ONE 	^ 	°'°--,-
cn 	g^p
UNPUBLISHED OPINION 	^ 	5%n>.
FILED: June 16, 2014 	£ 	II
Trickey, J. — Alexis Schlottmann appeals the judgment and sentence
entered 	following 	her 	convictions 	arising 	from 	her 	participation 	in 	several
residential 	burglaries. 	Schlottmann 	claims 	errors based on a 	partial 	jury,
ineffective assistance of counsel, 	and 	prosecutorial 	misconduct. 	Finding no
error, we affirm.
FACTS
Emily McMason lived across from Marian Finely on a dead-end street.1
On the afternoon of November 18, 2011, McMason noticed an unfamiliar dark
green Mazda minivan pull into Finely's driveway.2 	The vehicle parked on the
driveway, and its driver emerged holding a piece of paper.3 	McMason observed
the driver as she walked around the house, 	examined the surroundings, and
peered into windows.4 	When McMason saw the driver remove a crowbar from
the vehicle, she called 911 to report this suspicious activity.5
11 Report of Proceedings (RP) (October 15, 2012, afternoon) at 75.
21 RP at 75-76, 81.
31 RP at 77.
41 RP at 77-78.
51 RP at 79.

No. 71661-1-1/2
McMason then noticed the passenger of the vehicle—later identified as
Schlottmann—exit the minivan and, together with the driver, break into Finely's
residence through the front door.6 	After approximately 10 minutes, Schlottmann
and the driver exited the residence.7 	McMason noticed Schlottmann carrying a
stack of what appeared to be manila file folders.8 	The driver was hauling a large
bag with items protruding from the inside.9 	Schlottmann and the driver returned
to the vehicle and departed from the scene.10
McMason 	relayed 	these 	observations 	to 	the 	911 	dispatcher 	as 	they
occurred.11 	Over the telephone, McMason provided a detailed description of the
minivan, its license plate, and the driver and passenger.12
Law enforcement officers subsequently arrived at McMason's residence.13
While they interviewed McMason, the Olympia Police Department stopped a dark
green Mazda with a license plate number identical to that which McMason had
previously provided.14 	The police stopped the minivan approximately three miles
from the Finely residence.15 	The driver of the vehicle was identified as Darlene
Lockard and the passenger was Schlottmann.16
McMason 	thereafter 	identified 	both 	woman 	as 	the 	individuals 	she
61 RP at 79, 81-82.
7 1 RP at 83-84.
81 RP at 84.
91 RP at 84.
101 RP at 85.
11 1 RP at 80.
121 RP at 80-81.
131 RP at 87.
14 1 RP at 33-34, 91.
151 RP at 35-36.
161 RP at 35-36.

No. 71661-1-1/3
witnessed burglarize Finely's residence.17 	After a search warrant was obtained,
Thurston County deputies searched the minivan and took an inventory of all of
the items discovered inside.18 The deputies recovered 48 stolen items.19 Among
them was a Savage .32 caliber pistol, a crowbar, a set of knives, a glass jar of
coins, a piece of paper with the words "The Dynamic Duo" written on it, and a
checkbook with checks containing the name "Japhet Bulkheading Incorporated,
Floyd or Grace Japhet."20 	Finely identified 45 items stolen from her residence,
including the pistol.21 	The knives, glass jar, and checkbook did not belong to
Finely.22
The Thurston County Sherriffs office soon determined that Schlottmann
and Lockard were the perpetrators responsible for two other burglaries that took
place 	near Finely's 	residence. 	On 	the same day as the 	Finely 	burglary,
Schlottmann and Lockard also burglarized Guy Winkleman's residence, located
approximately four miles away from 	Finely.23 	Approximately $7,000 worth of
property had been stolen.24 	On November 17, 2011, Lockard and Schlottmann
burglarized 	the 	residence 	of 	Donald 	and 	Lisa 	Japhet.25 	Lockard 	and
Schlottmann 	stole 	several 	items, 	including 	the 	checkbook 	for 	Japhet
17 1 RP at 38, 92.
181 RPat41.
191 RP at 42.
201 RP at 41, 46, 48, 54.
21 1 RP at 43-46; 2 RP (October 16, 2012) at 170-71.
221 RP at 48, 54.
23 2 RP at 241, 245.
24 3 RP (October 17, 18, 19, 30, 2012) at 334.
25 2 RP at 197.

No. 71661-1-1/4
Bulkheading, a computer, a helmet camera, 	and some jewelry.26 	The police
determined that a crowbar was used to break into the residence.27
The State charged Schlottmann, by second amended information, with
first degree burglary while armed with a firearm (Count I); theft of a firearm
(Count II); second degree unlawful possession of a firearm (Count III); second
degree theft (Counts IV, VII, and XI); third degree malicious mischief (Count V);
first degree burglary (Count VI); second degree malicious mischief (Counts VIII
and X); residential burglary (Count IX); and second degree possession of stolen
property (Counts XII 	and 	XIII).28 	Counts 	I, 	II, 	IV, 	and 	V were for crimes
committed against the Finely residence. 	Schlottmann pleaded not guilty to these
charges.29
A jury trial was held on October 15 to October 19, 2012. 	The State
presented the testimony of numerous witnesses, 	including 	McMason, 	Finely,
Winkelman, 	Donald 	and 	Lisa Japhet, 	and 	several 	law enforcement officers
involved in the investigations.30
Following trial, 	the jury convicted Schlottmann of first degree burglary
(Count I); theft of a firearm (Count II); theft in the second degree (Counts IV, VII,
and XI); third degree malicious mischief (Count V); 	residential burglary as a
lesser included charge (Count VI); 	malicious mischief in the 	second degree
(Counts VIII and X); residential burglary (Count IX); and possession of stolen
26 2 RP at 200-202
27 2 RP at 236-37.
28 Clerk's Papers (CP) at 34-37; 4 RP at 4-7; 3 RP at 316.
29 3 RP at 316-17.
301 RPat5, 32, 68, 72; 2 RP at 116, 151, 193, 209, 233; 3 RP at 295, 307, 328.

No. 71661-1-1/5
property in the second degree (Counts XII and XIII).31 	The trial court imposed a
sentence of 96 months followed by 18 months of community custody.32
Schlottmann appeals.
ANALYSIS
Impartial Jury Claim
Schlottmann first contends that the trial court violated her right to a fair
and impartial jury when, after voir dire, it denied her motion to dismiss a juror.
We disagree.
The Sixth Amendment to 	the 	United 	States Constitution and 	article 	I,
section 22 of the Washington State Constitution guarantee the right to trial by an
impartial jury. 	State v. Latham. 100 Wn.2d 59, 62-63, 667 P.2d 56 (1983). 	RCW
2.36.110 and CrR 6.5 also protect the right to an impartial jury. 	While RCW
2.36.110 "provides the grounds for which the court may dismiss a juror," CrR 6.5
sets forth the procedures under which an excused juror is replaced. 	State v.
Depaz. 165 Wn.2d 842, 852, 204 P.3d 217 (2009); see also State v. Rafav, 168
Wn. App. 734, 821, 285 P.3d 83 (2012) ("RCW 2.36.110 governs the removal of
jurors."). 	Pursuant to RCW 2.36.110, a judge has a duty "to excuse from further
jury service any juror, who in the opinion of the judge, has manifested unfitness
as a juror by reason of bias, prejudice, ... or by reason of conduct or practices
incompatible with proper and efficient jury service." 	CrR 6.5 states, "If at any
time before submission of the case to the jury a juror is found unable to perform
the duties the court shall order the juror discharged." These provisions place the
31 CPat117.
32 CP at 122.

No. 71661-1-1/6
trial court under a continuous obligation to excuse a juror who is unfit and unable
to perform the duties of a juror. 	State v. Jorden. 103 Wn. App. 221, 226-27, 11
P.3d 866 (2000).
The trial court's ability to observe a juror puts the trial court in the best
position to determine whether the juror can be fair and impartial. 	State v. Rupe,
108 Wn.2d 734, 749, 743 P.2d 210 (1987). 	Accordingly, we review for abuse of
discretion the trial court's decision to remove a juror. 	Rafav. 168 Wn. App. at
821. 	A 	trial 	court 	abuses 	its 	discretion 	when 	its 	decision 	is 	manifestly
unreasonable or based on untenable grounds. 	Depaz, 165 Wn.2d at 858.
At the inception of voir dire, the trial court read each of the charges to the
venire.33 	The trial court noted the date on which 	each charged crime took
place_November 17 or 18, 2011.34 	The court then instructed the prospective
jurors: "You must not withhold information in order to be seated on this particular
jury. 	You should be straightforward in your answers and not just answer in a way
that you hope the lawyers or the court might hope or expect you to answer."35
During voir dire, the trial court asked the prospective jurors: 	"Have any of
you personally had an experience that is similar to the type of incident or events
that were described to you? About what this case is about."36 	At this time, the
venire had only been made aware of the State's charges against Schlottmann
and the dates the crimes allegedly took place. 	After a number of potential jurors
raised their hands, the trial court added, "[Wje're just trying to determine if it's too
33 4 RP (October 15, 2012, morning) at 4-7.
34 4 RP at 4-7.
35 4 RP at 9.
36 4 RP at 19.

No. 71661-1-1/7
close to something that maybe that 	you have some personal experience or
someone in your family close to you."37 The court proceeded to inquire further of
those jurors who raised their hands.38 Juror No. 1 did not raise his hand.39
Defense counsel later addressed the venire:
What [the trial court] wanted to know is specifically if these
type of instances are either so fresh in your recollection or so fresh
or that made such an impact on you that it would be -- interfere with
your ability to listen to the evidence, interfere with your ability to
give each side, both the prosecutor and the state, a fair trial.[40]
After the jury was impaneled, trial 	counsel made opening arguments.
During the State's opening argument, the prosecutor provided more details to the
jury about the case.41 	He reiterated that the case began in 	November, and
specified the neighborhoods and streets in which the crimes were alleged to
have occurred.42
At the beginning of trial the next day, before the witnesses were called,
Juror No. 1 brought to the trial court's attention that his residence had been the
subject of an attempted burglary.43 	He informed the court that he lived near
Finely's residence and that on November 10, 2011, his door had been damaged
by what he believed to be a crowbar.44 	The prosecutor and defense counsel
were given 	the opportunity to 	question 	the juror about this 	incident.45 	The
37 4 RP at 19.
38 4 RP at 19-22.
39 4 RP at 19.
40 4 RP at 49-50.
41 4 RP at 90-97.
42 4 RP at 90-91, 93-94.
43 2 RP at 109.
44 2 RP at 109-12.
45 2 RP at 109-11.

No. 71661-1-1/8
prosecutor asked the juror whether he "could set that aside and just decide this
case based 	on the facts 	that are 	presented to [him] 	in court."46 	The juror
answered affirmatively.47
Defense counsel moved to excuse the juror.48 	Defense counsel argued
that the similarities between the two cases were substantial and that had he been
aware of the juror's experience, he would have made a for cause or peremptory
challenge.49 	The trial court denied the motion, 	concluding that no sufficient
showing had been made to excuse the juror.50 	The court reasoned that "nothing
that [Juror No. 1] said . . . rises to the level of the other people who were excused
for cause who had similar experiences."51
The trial court did not abuse its broad discretion by denying Schlottmann's
motion to excuse Juror No. 1. 	The mere fact that Juror No. 1 made mention of
the attempted 	burglary at the start of the second day of trial 	bolstered 	his
credibility and strongly suggested that he could serve as a fair juror.
Moreover, during voir dire, the jury venire was not offered any specific
information regarding the charged crimes. 	Neither counsel nor the trial court
informed the venire of the location in which the charged crimes took place. 	The
parties also did not mention that the perpetrators employed a crowbar to break
into the residences. 	The only knowledge the venire had about the case was the
charged crimes and the alleged dates of those crimes. 	Then, after the jury was
46 2 RP at 111.
47 2 RP at 111.
48 2 RP at 113.
49 2 RP at 113-14.
502RPat115.
51 2 RP at 115.
8

No. 71661-1-1/9
impaneled, the prosecutor offered more information about the crimes, including
the location in which one of the burglaries took place. 	It is reasonable to infer
that Juror No. 1 recognized the similarities between the charged crimes and the
attempted burglary of his residence once the prosecutor provided these details
during opening arguments.
Furthermore, upon inquiry, Juror No. 1 expressed his belief that he could
set his experience aside and decide the case based upon the evidence produced
at trial. 	The trial court is in the best position to evaluate the juror's candor and
impartiality. 	State v. Elmore. 155 Wn.2d 758, 769 n.3, 123 P.3d 72 (2005). 	We
accept the trial court's discretion in determining that Juror No. 1 was not unfit to
serve. 	Schlottmann was not convicted by an unfair or partial jury.
Ineffective Assistance of Counsel Claim
Schlottmann next contends that she was denied effective assistance of
counsel because defense counsel conceded guilt to several criminal counts. 	We
disagree.
An accused's 	right to effective assistance of counsel derives from the
Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State Constitution. State v. Grier. 171 Wn.2d 17, 32, 246 P.3d 1260
(2011) (citing Strickland v. Washington. 466 U.S. 668, 685-86, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984); State v. Thomas. 109 Wn.2d 222, 229, 743 P.2d 816
(1987)).
To prevail on a claim of ineffective assistance of counsel, Schlottmann
must prove deficient performance and resulting prejudice. 	State v. McFarland.

No. 71661-1-1/10
127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). 	Schlottmann bears the burden
of 	overcoming 	"'a 	strong 	presumption 	that 	counsel's 	performance 	was
reasonable.'" 	Grier. 171 Wn.2d at 33 (quoting State v. Kvllo. 166 Wn.2d 856,
862, 	215 	P.3d 	177 	(2009)). 	Deficient 	performance 	exists 	where 	defense
counsel's representation "fell 	below an 	objective standard of reasonableness
based on consideration of all the circumstances." 	McFarland. 127 Wn.2d at 334-
35.
If defense counsel's performance can be characterized as legitimate trial
strategy or tactics, performance is not deficient. 	Grier. 171 Wn.2d at 33. 	But "a
criminal defendant can 	'rebut the presumption of reasonable performance by
demonstrating that 'there is no conceivable legitimate tactic explaining counsel's
performance.'" 	Grier. 	171 	Wn.2d 	at 33 (quoting State v. 	Reichenbach. 153
Wn.2d 126, 130, 101 P.3d 80 (2004); State v. Aho. 137 Wn.2d 736, 745-46, 975
P.2d 512 (1999)).
Schlottmann alleges 	that during 	opening arguments, 	defense counsel
admitted her guilt to all of the charges involving the Finely residence, including
first degree burglary. 	Schlottmann is mistaken. 	The record reflects that defense
counsel admitted to a lesser included crime of residential burglary.52 	See RCW
52 To convict Schlottmann of Count I, first degree robbery, the jury was instructed to find
the following relevant elements beyond a reasonable doubt:
(1) That on or about November 18, 2011, the defendant or an accomplice,
entered or remained unlawfully in a building;
(2) That the entering or remaining was with intent to commit a crime
against a person or property therein;
(3) That in so entering or while in the building, to wit: residence at Marian
Finley [sic] or in immediate flight from the building the defendant or an
accomplice in the crime charged was armed with a deadly weapon.
10

No. 71661-1-1/11
9A.56.040; 9A.52.025. 	Defense counsel also admitted to second, degree theft
and third degree malicious mischief.
The following excerpt from opening arguments is illustrative:
But we'll tell you right up front they will be able to prove some of
these charges, and some of the charges 	involving 	Ms. 	Finely's
home.
Yes, 	Ms. 	McMason was 	being 	a 	good 	neighbor. 	Ms.
McMason, I think the evidence will even show, she brought out the
binoculars so she could get the good information such as license
plate 	number to the van 	and 	clothing 	descriptions, 	yes. 	And
regrettably, Ms. Schlottmann used some very poor judgment, that's
in fact criminal judgment, and that she went into a home where
she should not have been, where she did not have permission
to be inside, and she went with Darlene Lockard.
. . . And yes, while inside Ms. Finely's house, many items
were taken, but Ms. Schlottmann didn't have a right to, and
we'll be up front about that.153]
At closing argument, defense counsel again acknowledged, "Ms. Lockard
and Ms. 	Schlottmann did 	in fact go into Ms. 	Finely's house illegally without
permission and take items from the house."54 	Defense counsel further stated,
"Certainly 	she [was 	an 	accomplice] 	in 	the 	burglary 	of 	Ms. 	Finely's 	home.
Certainly she did that with the stealing of many expensive items."55
Defense counsel also conceded Schlottmann's guilt to malicious mischief
CP at 76.
To convict Schlottmann of residential 	burglary as a lesser degree of first 	degree
burglary, the jury was 	instructed to find the following 	relevant elements beyond a
reasonable doubt:
(1) 	That 	on 	or about 	November 	18, 	2011, 	the 	defendant, 	or an
accomplice, 	entered 	or 	remained 	unlawfully 	in 	a 	dwelling, 	to 	wit:
residence of Marian Finley [sic];
(2) That the entering or remaining was with intent to commit a crime
against a person or property therein.
CP at 78.
53 4 RP at 97-99 (emphasis added).
54 3 RP at 408.
55 3 RP at 409-10.
11

No. 71661-1-1/12
in the third degree, for damaging Finely's door.56
Accordingly, in total, trial counsel conceded guilt to three offenses: third
degree malicious mischief, second degree theft, and residential burglary, a lesser
included offense to first degree burglary.
Notwithstanding these concessions, defense counsel vigorously defended
Schlottmann on the remaining counts, including the crime of first degree robbery
while armed with a firearm. 	Defense counsel denied that Schlottmann either took
a weapon or knew that a weapon had been stolen and argued that, therefore,
Schlottmann could not be found guilty as an accomplice to the charges of theft of
a firearm or first degree burglary.57 	Counsel expressly indicated that "given the
absence of proof, it would be inappropriate to find her guilty of theft of a firearm
and inappropriate to find her guilty of the more serious offense of burglary in the
first degree."58 	Defense counsel further noted, "[The] burglary was a residential
burglary because the [S]tate has not proven beyond a reasonable doubt that the
weapon used there was being used as defined by the definition as a deadly
weapon."59 	Defense counsel additionally denied all the remaining counts related
to the Japhet and Winkelman residences.60
Furthermore, 	contrary 	to Schlottmann's 	contention, 	it 	is 	evident 	that
defense 	counsel's 	concessions 	were 	a 	trial 	tactic 	aimed 	at 	enhancing
Schlottmann's credibility in order to avoid convictions on the remaining charges,
56 3 RP at 410-11,413-14.
57 3 RP at 408-13.
58 3 RP at 410.
59 3 RP at 413.
60 3 RP at 414-25.
12

No. 71661-1-1/13
particularly first degree burglary while armed with a firearm. 	In 	light of the
overwhelming evidence, this strategy was reasonable.
Conceding guilt on a particular count can be a sound trial tactic when the
evidence on that count is overwhelming. 	State v. Silva. 106 Wn. App. 586, 596,
24 P.3d 477, review denied. 145 Wn.2d 1012 (2001). This approach may win the
jury's confidence and preserve the defendant's credibility when a more serious
charge is at stake. 	State v. 	Hermann, 138 Wn. App. 596, 605, 158 P.3d 96
(2007); Silva. 	106 Wn. App. 	at 597-98. 	Defense counsel is not required to
consult with the client before making this strategic move. 	Silva. 106 Wn. App. at
596 (citing Underwood v. Clark. 939 F.2d 473, 474 (7th Cir.1991)).
Here, Schlottmann makes no effort to contend that the evidence of her
guilt as to the conceded charges was not overwhelming. 	Nor could she do so
convincingly. 	At trial, the State presented the following evidence: an eyewitness
who observed the burglary, 	provided the police a detailed description of the
suspects and the vehicle, and later identified the suspects shortly after the crime;
evidence that the vehicle and physical characteristics of suspects matched the
eyewitness's description; evidence that the items recovered in the minivan were
identified as belonging to 	Finely; evidence that the minivan 	identified 	by the
eyewitness was stopped in close proximity to Finely's residence. 	The State's
evidence pertaining to the crimes against the Finely residence was immense.
Defense counsel's decision 	to admit 	to these 	crimes 	was a strategic one
intended to earn the jury's favor and preserve Schlottmann's credibility as to the
remaining charges. 	Accordingly, Schlottmann's claim fails.
13

No. 71661-1-1/14
Prosecutorial Misconduct Claim
Schlottmann contends, finally, that three of the prosecutor's remarks made
during closing argument deprived her of a fair trial. 	Again, we disagree.
A prosecutor owes a defendant a duty to ensure the right to a fair trial is
not violated. 	State v. Monday. 171 Wn.2d 667, 676, 257 P.3d 551 (2011). 	A
defendant claiming prosecutorial misconduct bears the burden of demonstrating
that the challenged conduct was both improper and resulted in prejudice. 	State
v. Cheatam. 	150 Wn.2d 	626, 	652, 	81 	P.3d 	830 	(2003). 	We 	review alleged
misconduct "within the context of the prosecutor's entire argument, the issues in
the case, the evidence discussed in the argument, and the jury instructions."
State v. Dhaliwal. 150 Wn.2d 559, 578, 79 P.3d 432 (2003).
Once a defendant establishes that the prosecutor's conduct was improper,
a reviewing court determines whether the defendant was prejudiced. 	State v.
Emery. 174 Wn.2d 741, 760, 278 P.3d 653 (2012). 	If the defendant objected at
trial, on appeal he orshe "must show that the prosecutor's misconduct resulted in
prejudice that had a substantial likelihood of affecting the jury's verdict." 	Emery,
174Wn.2dat760.
Following closing arguments, defense counsel moved for a mistrial based
upon the prosecutor's comments that she now challenges on appeal.61 	The trial
court denied the motion.62 	"The decision to deny a request for mistrial based
upon alleged prosecutorial misconduct lies within the sound discretion of the trial
61 3 RP at 439.
62 3 RP at 442.
14

No. 71661-1-1/15
court, and 	it will 	not be disturbed 	absent an 	abuse of discretion." 	State v.
Russell. 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
At closing argument, while reviewing the evidence surrounding the Finely
burglary, the prosecutor made the following comment:
They took similar items. 	They want jewelry, electronics, and they
wanted 	that checkbook. 	Why do people 	burglarize houses? 	I
mean, this probably isn't too hard of a concept. 	They want drugs
and they want money. 	And 	money equals drugs or drugs
equals money, one of the two. 	And they want things that they
can sell quickly-.[63]
Defense 	counsel 	objected 	to 	this 	comment, 	arguing 	that 	it 	was
inflammatory.64 The trial court held a sidebar, after which the court instructed the
prosecutor to "[g]o ahead."65
Schlottmann 	contends 	that 	by 	making 	this 	remark, 	the 	prosecutor
improperly referenced evidence outside of the record and prejudicially implied
that Schlottmann burglarized homes in order to purchase drugs.
A prosecutor 	is 	allowed 	wide 	latitude 	in 	closing 	arguments 	to draw
reasonable inferences from the facts in evidence and to express such inferences
to the jury. 	State v. Gregory. 	158 Wn.2d 759, 860, 	147 P.2d 1201 	(2006);
Dhaliwal. 	150 Wn.2d at 	577. 	But a 	prosecutor 	is not permitted to 	make
prejudicial statements that are not supported by the record. 	State v. Ramos. 164
Wn. App. 327, 341, 263 P.3d 1268 (2011). 	Similarly, "[m]ere appeals to the jury's
passion or prejudice are improper." Gregory. 158 Wn.2d at 808.
Here, 	the prosecutor 	improperly 	appealed 	to the jury's 	passion and
63 3 RP at 396 (emphasis added).
64 3 RP at 396.
65 3 RP at 396.
15

No. 71661-1-1/16
prejudice. 	The prosecutor's remark was designed to portray Schlottmann as a
drug user or addict whose motive in the burglaries was to procure drugs. 	There
was no evidence presented to the jury that established such a motive. 	This
comment exceeded the wide latitude granted to prosecutors in closing argument.
Nevertheless, Schlottmann 	does not demonstrate that the 	prosecutor's
comment substantially affected the jury verdict. 	The remark was made in the
context of a prolonged trial as well as a lengthy closing argument. A sidebar was
immediately held following 	this comment, 	after which the prosecutor did 	not
mention 	the alleged 	drug 	related 	motive 	again. 	Additionally, 	the jury was
instructed to "decide the facts in this case based upon the evidence presented."66
The jury was also directed "that the lawyers' statements are not evidence. 	The
evidence is the testimony and the exhibits."67 	We presume that jurors follow
instructions to disregard improper evidence. 	State v. Russell. 125 Wn.2d 24, 84,
882 P.2d 747 (1994).
Schlottmann has not shown 	prejudice as a result of the prosecutor's
improper 	comment. 	Accordingly, 	the 	trial 	court 	did 	not 	err 	in 	denying
Schlottmann's motion for mistrial with respect to this comment.
Schlottmann next contends that the prosecutor committed misconduct by
making the following remarks during closing argument: 	"Again, Ms. Lockard and
Schlottmann are two burglars and thieves with no conscience."68 	In rebuttal, the
66 CP at 55.
67 CP at 56.
68 3 RP at 401.
16

No. 71661-1-1/17
prosecutor 	stated that "[Schlottmann] 	wanted 	to 	victimize 	other 	people."69
Schlottmann did not object to these remarks.70
Schlottmann contends that the prosecutor injected his own opinion as to
Schlottmann's motives for committing the 	crimes, which were 	outside 	of the
record. 	She is incorrect. 	These statements were proper inferences based on the
evidence produced at trial.
Even assuming that the comments were improper, Schlottmann fails to
establish prejudice. 	She makes no effort to show that there was a substantial
likelihood that the prosecutor's comments affected the jury's verdict. 	Therefore,
we find no error as to these comments.
Schlottmann 	next challenges 	the 	following 	comments 	made 	by the
prosecutor:
Now let's talk about circumstantial evidence. 	The best evidence
that we have is that we already know what they are. 	They're
burglars and thieves. 	How do we know that? 	Ms. 	McMason.
Eyewitness. 	Saw them do it. 	[Defense counsel] says well -- he told
you at the beginning of the case, well, she doesn't contest that.
Really? 	If she's not contesting it, why are we here talking about
those particular charges? 	She never pled guilty to those charges.
You still have to find her guilty of those charges, don't you? That's
one of your jobs. 	It's what the court has instructed you to do. 	She
didn't take responsibility for it. 	She's going to try to now --t71i
After a sidebar was held, defense counsel noted 	his objection for the
record.72 	In 	his 	rebuttal 	argument, 	the 	prosecutor 	stated: 	"Again, 	Ms.
Schlottmann surrounds herself with these things, but she wants to deny all of
69 3 RP at 432.
70 See 3 RP at 401, 432.
71 3 RP at 400.
72 3 RP at 400-01.
17

No. 71661-1-1/18
them. 	As I said, she's never taken responsibility for any of it."73 	Defense counsel
objected, and the court ordered the prosecutor to proceed.74 	The prosecutor
resumed, 	"She's 	never taken 	responsibility for any 	of these crimes, 	but for
[defense counsel] doing that for her now. 	But again, she wants to limit what her
responsibility is, for obvious reasons."75
Schlottmann argues that the prosecutor improperly commented on her
constitutional 	right 	to 	plead 	not 	guilty, 	as 	well 	as 	her 	right 	against self-
incrimination and right to present a defense.
"[T]he State can take no action which will unnecessarily 'chill' or penalize
the assertion of a constitutional 	right and the State 	may not draw adverse
inferences from the exercise of a constitutional right." 	Gregory, 158 Wn.2d at
806 	(quoting 	State 	v. 	Rupe. 	101 	Wn.2d 	664, 	705, 	683 	P.2d 	571 	(1984)).
Specifically, the State may not invite the jury to draw a negative inference from
the defendant's exercise of a constitutional right. 	Gregory. 158 Wn.2d at 806
(citing State v. Jones. 71 Wn. App. 798, 811-12, 863 P.2d 85 (1993)). 	But "not
all arguments touching upon a defendant's constitutional rights are impermissible
comments on the exercise of those rights." 	Gregory. 158 Wn.2d at 806. 	The
question is whether the prosecutor "manifestly intended the remarks to be a
comment on that right." 	State v. 	Crane. 	116 Wn.2d 315, 331, 804 P.2d 10
(1991).
Here, viewing these statements in the context of the entire record, the
73 3 RP at 433.
74 3 RP at 433.
75 3 RP at 433.
18

No. 71661-1-1/19
prosecutor's 	remarks 	were 	not 	intended 	to 	comment 	on 	Schlottmann's
constitutional rights. 	Indeed, the comments were invited by defense counsel's
opening argument. As previously discussed, defense counsel conceded guilt to
the lesser offense of residential burglary, and admitted that the State would be
able to prove many of the charges. The prosecutor's comments did not expand
beyond the scope of defense counsel's statements. 	See State v. Dennison. 72
Wn.2d 842, 849, 435 P.2d 526 (1967) (A prosecutor's remarks do not constitute
misconduct if they are invited by defense counsel unless they "'go beyond a
pertinent reply.'") (quoting State v. LaPorte. 58 Wn.2d 816, 822, 365 P.2d 24
(1961)).
Schlottmann's prosecutorial misconduct claims are not persuasive. 	The
trial court did not abuse its discretion in denying her motion for mistrial.
Affirmed.
J/: 	c^e 	-(yA
WE CONCUR:
4
19