State Of Washington, Respondent V. Gary Daryll Bentley, Jr., Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
GARY DARYLL BENTLEY, JR.,
Appellant.
No. 73262-5-1 	^
or
DIVISION ONE
UNPUBLISHED OP@IOfif§
FILED: July 25, 2016
Appelwick, J. — Bentley appeals his conviction for assault in the third
degree and possession of a stolen vehicle. He contends the prosecutor engaged
in misconduct by making improper comments during closing argument. We affirm.
FACTS
On August 26, 2014, Gustavo Pena was preparing to leave his Seattle
home for a vacation. 	His house is across the street from a baseball playfield. 	He
noticed a person sitting across from his house on the bleachers of the baseball
field looking straight at his house. 	Pena was concerned, because the bleachers
did not face his house and the person was looking attentively at his house anyway.
Pena observed the individual for 20 to 30 minutes. 	He noticed that the individual
was an African American man, between the age of 30 to 40, with a shaved or bald
head, and a goatee.
Pena was concerned about the man, but needed to leave his house to catch
his flight. 	Pena left his house with two large suitcases and got into a taxicab. The
man was still sitting across the street from Pena's house when he left. 	Two days

No. 73265-2/2
later, while he was in Columbia, Pena received a call from a neighbor and learned
that his home had been burglarized. 	Pena's neighbor also informed him that his
2006 Land Rover1 was missing from his driveway. 	Pena kept a set of spare car
keys in his house.
On August 29, 2014, Deputy Christopher Dearth was on patrol. 	He learned
that an older Land Rover had been reported stolen. 	Toward the end of Deputy
Dearth's shift another officer broadcasted that he saw a vehicle matching the
description of the stolen vehicle parked on the side of a road. 	Deputy Dearth went
to investigate.
When he arrived, Deputy Dearth confirmed that the Land Rover was the
vehicle that had been reported as stolen. William Juell was sitting in a truck behind
the Land Rover. Gary Bentley was getting into the driver's seat of the Land Rover
and Russell Bentley2 was standing outside on the passenger side of the Land
Rover. 	Juell had stopped to help Russell and Bentley, because he saw the Land
Rover stalled in the middle of the road. 	The vehicle had run out of gas, and Juell
took them to get gas.
Deputy Dearth briefly spoke to Juell. Then, Deputy Dearth engaged Russell
and Bentley in casual conversation. 	Deputy Dearth wanted to wait until additional
backup arrived before confronting 	the 	men about the 	stolen vehicle. 	After
1 The vehicle is referred to as both a 	Land Rover and a 	Range Rover
throughout the record. Because Pena identified his vehicle as a Land Rover and
because there is no contention that the vehicle in question is not Pena's, we refer
to the vehicle as a Land Rover.
2 Russell is Gary's uncle. We refer to Russell by his first name for the sake
of clarity. 	No disrespect is intended.

No. 73265-2/3
additional officers arrived, Deputy Dearth announced that Bentley and Russell
were under arrest, 	because the car was stolen. 	Deputy Dearth attempted to
handcuff Bentley. 	A struggle ensued and Bentley struck Deputy Dearth and
another officer. The officers were eventually able to take Bentley into custody.
The King County Sheriff's Office notified Pena that his vehicle had been
located. 	Pena returned from Columbia on September 9 and went to the SeaTac
Police Department to retrieve his car. A detective showed Pena a photo lineup of
six pictures. 	He asked Pena if he could identify the man who was watching his
house the day he left for his trip. Pena could not identify him.
On September 4, 2014, the State charged Bentley with two counts of
assault in the third degree for assaulting two police officers and with possession of
a stolen vehicle. 	Pena testified at trial. 	Pena testified to the physical description
of the man who had been watching his house on the day he left for his vacation.
Later during his testimony, the State asked Pena if he found "something" in his
house when he returned home. 	Pena indicated that he did find something in his
house. 	Bentley immediately objected, asserting that the line of questioning was
irrelevant. 	The trial court asked the State where the line of questioning was
headed. 	The State responded that facial hair had been found at the house.
Outside of the presence of the jury, the State explained that facial hair was found
in the bathroom sink in Pena's house and that it could be from an African American
individual. 	The State explained that this was relevant because the hair could

No. 73265-2/4
belong to the African American person Pena saw watching his house. 	Bentley's
counsel responded:
[Hje's not being charged with burglary. 	I don't like the entire line of
inquiry into the burglary. 	I know that there was a burglary, that's how
the vehicle was presumably stolen, so I can't really object to the
existence of the burglary, but I feel like we're getting too deep into
the facts of the burglary and not into the actual charge that he's
charged with. 	Clearly the State wants to infer or imply that Mr.
Bentley was the burglar as well and I think that's unfair, given that
Mr. 	Pena 	can't 	identify him as 	the 	burglar. 	It's just piling on
inferences upon inferences that actually don't lead anywhere, but it
makes it look like the State has further evidence somehow that Mr.
Bentley was the burglar but just hasn't charged him. 	So I think it's
unfair and prejudicial to get too far into the burglary.
The trial court sustained the objection, noting that Pena did not have sufficient
foundational knowledge regarding the facial hair. 	The court further noted that if
there was any minor probative value it was outweighed by confusion of the issues
and prejudicial effect under ER 403.
During 	closing 	argument, the 	prosecutor reviewed 	Pena's 	testimony,
including his testimony about the physical description of the individual who had
been watching Pena's house:
And he described an African American male with a balding head, a
goatee and no shirt, somewhat muscular build. 	A person not unlike
the defendant. 	Now it's true that Mr. Pena could 	not 	pick him
individually out when he got back three or four weeks later and was
shown some pictures, but you recall he said he was probably at a
distance from 	here to the door. 	But got 	the 	general 	physical
description, and we know it wasn't a female that was watching the
house, it wasn't a Hispanic person with long hair -
At that point, Bentley objected on the basis of relevance noting that the identity of
the burglar does not have anything to do with Bentley. 	The trial court overruled
the objection and stated that Bentley would have the opportunity to make a counter

No. 73265-2/5
argument. 	The prosecutor continued, noting that two days after Pena left he
received a call that his house had been burglarized.
The jury found Bentley guilty as charged. 	Bentley appeals.
DISCUSSION
Bentley argues that the prosecutor engaged in prosecutorial misconduct
during closing argument. 	Prosecutorial misconduct may deprive a defendant of
his right to a fair trial. 	State v. Davenport, 100 Wn.2d 757, 762, 675 P.2d 1213
(1984). An appellant claiming prosecutorial misconduct must show both improper
conduct and resulting prejudice. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940
(2008). Prejudice exists onlywhere there is a substantial likelihood the misconduct
affected the jury's verdict. 	State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221
(2006). 	A prosecutor has wide latitude in closing argument to draw reasonable
inferences from the evidence and to express such inferences to the jury. State v.
Boehninq, 127 Wn. App. 511, 519, 111 P.3d 899 (2005).
A prosecutor's comments during closing argument are reviewed in context
of the total argument, the issues in the case, the evidence addressed in the
argument, and the jury instructions. 	McKenzie, 157 Wn.2d at 52. 	It is improper
for the prosecutor to argue that the burden of proof rests with the defendant. State
v. Thorqerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011). Therefore, a prosecutor
generally cannot comment on the defendant's failure to present evidence because
the defendant has no duty to present evidence, 	jd.

No. 73265-2/6
Knowledge that the Land Rover was stolen was an element the State had
to 	prove 	to 	convict 	Bentley 	of 	possession 	of 	a 	stolen 	vehicle. 	See 	11A
Washington Practice: Washington Pattern Jury Instructions: Criminal 77.21,
at 177 (3d ed. 2008). 	During closing argument, the State emphasized Bentley's
possible involvement with the burglary presumably to prove that Bentley had
knowledge. 	Bentley asserts that the prosecutor improperly shifted the burden of
proof by implying that he 	had 	a 	burden to present favorable 	or exculpatory
evidence showing that he did not commit the burglary.
None of the prosecutor's remarks in closing argument explicitly commented
on Bentley's failure to present evidence, exculpatory or otherwise. 	And, we find
nothing in the prosecutor's closing argument to support a characterization that she
implicitly commented 	on the fact that 	Bentley did not provide any evidence
contradicting that allegation. And, to the extent the prosecutor's closing argument
implied Bentley was involved with the burglary based on evidence in the record,
this was 	not improper.3 	Boehninq. 127 Wn. App. at 519. 	The prosecutor's
argument did not shift the burden to Bentley.
Bentley further asserts that the trial court's ruling on his objection during
closing argument—informing him he could make a counter argument in his closing
3 Bentley also implies that the prosecutor's remarks were in contravention
of the trial court's ruling excluding evidence about the burglary. 	Bentley asserts
that the court refused to allow any testimony suggesting Bentley had burglarized
Pena's house. 	This is a mischaracterization of the record. 	During trial, Bentley
did not object to Pena's testimony regarding the man watching his home or the
description of the man. 	He objected only when the State attempted to admit
evidence of the facial hair found at Pena's house. 	The trial court sustained the
objection to only that specific evidence. The trial court never excluded all evidence
suggesting that Bentley burglarized Pena's house.

No. 73265-2/7
argument—compounded 	the 	error. 	He 	asserts 	that 	the 	trial court's 	ruling
suggested 	that 	Bentley, 	"could 	present 	a 	counter 	argument 	to 	the 	State's
impermissible argument, putting forth the favorable or exculpatory evidence that
he was not constitutionally required to present in the first place." However, the trial
court was merely commenting that Bentley would have the opportunity to rebut the
inferences the prosecutor was drawing. 	The trial court did not state that Bentley
had the obligation to rebut the inferences through evidence or otherwise.
Absent error, we need not address the issue of prejudice. See Warren, 165
Wn.2d at 26 (stating that a defendant must first show that the prosecutor's
comments 	were 	improper in 	order to 	prevail 	on 	a 	claim 	of prosecutorial
misconduct).
We affirm.
WE CONCUR:
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