IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
V.» '
STATE OF WASHINGTON, No. 69618-1-
Respondent, DIVISION ONE ts: CO
v.
PUBLISHED JAMES VINCENT SWANSON, FILED: June 23. 2014 Appellant.
Cox, J. — James Vincent Swanson appeals his judgment and sentence
for his conviction of indecent exposure with sexual motivation, claiming that he
was denied a fair trial because of prejudicial prosecutorial misconduct. In
closing, the prosecutor misstated the law in arguing what the State was required
to prove to convict Swanson of the crime. The trial court overruled Swanson's
timely objection to this misstatement. But the misstatement of the law was not
prejudicial in the context of the full trial. We affirm.
In 2012, the State charged Swanson with indecent exposure with sexual
motivation. The charge was based on an incident that occurred at the Cowgirls
Espresso stand in Lynnwood, Washington.
At trial, the State presented testimony from a female barista who worked
at the stand and wore a bikini while she worked. She testified that the incident No. 69618-1-1/2
occurred in the early morning hours of May 25, 2011 when it was still dark
outside. She stated that the espresso stand has windows on both sides and is
high enough that she can see down into cars including "the whole entire driver's
seat, about to the knees."
The barista identified Swanson as the first customer of the day. She
testified that his car did not come through in a normal fashion. Rather, he
stopped his car about a foot further back from the window than most customers.
But the barista stated that she could still see into the car "very well." She also
stated that she became curious because "no one normally stops back there."
The barista greeted Swanson. He placed a drink order. She then saw
Swanson masturbating. She observed his pants unzipped, unbuttoned, and
folded down in the front. She could see his shoulder and hand moving. She
continued to watch him out of the corner of her eye while she made his coffee
drink. This took about 45 seconds to a minute. The barista testified that
Swanson continued to masturbate during this time. She stated that she "tried to
ignore everything."
Swanson paid by credit card. It appears that this helped police identify
and arrest him. The barista testified that Swanson's hand was on his penis when
he handed her the credit card. He used both hands to fill out the receipt, but his
penis remained exposed.
Following the taking of exceptions to its proposed instructions, the court
instructed the jury. During closing argument, the parties argued contrary
interpretations of the court's instructions to the jury on what the State was No. 69618-1-1/3
required to prove. Later in this opinion, we explain in more detail the exact
nature of these conflicting arguments.
The jury returned a verdict of guilty as charged.
Swanson appeals.
PROSECUTORIAL MISCONDUCT
Swanson argues that he was denied his constitutional right to a fair trial
when the prosecutor misstated the law in closing argument and rebuttal. He also
claims this misstatement was prejudicial. We agree that the prosecutor
misstated the law. But this misstatement was not prejudicial.
"Prosecutorial misconduct may deprive a defendant of his constitutional
right to a fair trial."1 Prosecutorial misconduct is grounds for reversal ifthe
prosecutor's conduct was both improper and prejudicial.2
Preservation of Issue
The State first contends that Swanson failed to preserve this claim for
review. Specifically, the State argues that although defense objected during
rebuttal, "[n]o clarification for the basis of the objection was offered." We hold
that Swanson properly preserved this argument.
The trial court instructed the jury as follows:
Instruction No.7
A person commits the crime of indecent exposure when he or she intentionally makes any open and obscene exposure of his or her person knowing that such conduct is likely to cause
1 In re Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012).
2 State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011). No. 69618-1-1/4
reasonable affront or alarm, and that the person had been previously convicted of Indecent Exposure under RCW 9A.88.010.I3]
Instruction No. 8
To convict the defendant of the crime of Indecent Exposure, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 25th day of May, 2011, the defendant made an open and obscene exposure of the defendant's person to [the barista];
(2) That the defendant acted intentionally;
(3) That the defendant knew that such conduct was likely to cause reasonable affront or alarm;
During closing argument, the prosecutor opened by arguing what he
believed these instructions required the State to prove to obtain a conviction.
In reply, defense counsel argued a contrary view of what she believed the
same instructions required of the State.
In rebuttal, the prosecutor characterized defense counsel's argument as a
"misstatement of the law."5 He again argued his interpretation of the instructions.
Defense counsel objected.6 The trial court overruled the objection, stating
3 Clerk's Papers at 45.
4 Id, at 46.
5 Report of Proceedings (Oct. 16, 2012) at 137.
6 Id. at 138. No. 69618-1-1/5
that the jury would have the court's instructions.7
ER 103(a)(1) requires "a timely objection . . . stating the specific ground of
objection, if the specific ground was not apparent from the context."8
Here, the specific ground for the objection to the State's argument was
apparent from the context. There simply is no dispute what the nature of the
objection was. It was focused on the conflicting arguments of what the
instructions required the State to prove. Thus, it is clear that the parties and the
court knew the specific ground for objection. Swanson preserved his claim for
review.
Prosecutor's Misstatements
Swanson argues that the prosecutor misstated the law when he argued
that the jury must only find that Swanson intended the act that resulted in an
open and obscene exposure. We agree.
"As a quasi-judicial officer representing the people of the State, a
prosecutor has a duty to act impartially in the interest only of justice."9 The
prosecutor may not misstate the law to the jury.
Both sides appear to agree that these instructions are consistent with the
underlying statute for indecent exposure. When interpreting a statute, a court
'Id
8 (Emphasis added.)
9 State v. Warren, 165 Wn.2d 17, 27, 195 P.3d 940 (2008). No. 69618-1-1/6
seeks to follow the legislature's intent.10 "If the statute's meaning is plain, [the
court] give[s] effect to that plain meaning as the expression of the legislature's
intent."11
The indecent exposure statute, RCW 9A.88.010, states:
(1) A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm. The act of breastfeeding or expressing breast milk is not indecent exposure.[12]
Here, the question is what the State must prove to establish a violation of
this statute. Specifically, the question is whether the State had to prove not only
that Swanson intended the act but also that Swanson intended the exposure be
"open." We conclude that it did.
The United States Supreme Court case Flores-Figueroa v. United States
is instructive.13 There, the Court examined a federal statute that imposes a
mandatory two-year prison term upon individuals convicted of certain crimes if
the offender "'knowingly transfers, possesses, or uses, without lawful authority, a
means of identification of another person.'"14 The question was "whether the
statute requires the Government to show that the defendant knew that the
10 Bostain v. Food Express, Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007).
11]o\
12 (Emphasis added.)
13 556 U.S. 646, 129 S. Ct. 1886, 173 L Ed. 2d 853 (2009).
14 \± at 647 (emphasis omitted) (quoting 18 U.S.C. § 1028A(a)(1)). No. 69618-1-1/7
'means of identification' he or she unlawfully transferred, possessed, or used, in
fact, belonged to 'another person.'"15
The Court stated, "As a matter of ordinary English grammar, it seems
natural to read the statute's word 'knowingly' as applying to all the subsequently
listed elements of the crime."16 It explained, "In ordinary English, where a
transitive verb has an object, listeners in most contexts assume that an adverb
(such as knowingly) that modifies the transitive verb tells the listener how the
subject performed the entire action . . . ."17
Further, the Supreme Court stated that "[t]he manner in which the courts
ordinarily interpret criminal statutes is fully consistent with this ordinary English
usage."18 "That is to say courts ordinarily read a phrase in a criminal statute that
introduces the elements of a crime with the word 'knowingly' as applying that
word to each element."19
This court considered a similar question in State v. Killingsworth.20 There,
this court reviewed a to-convict instruction that required the jury to find that the
15 Id. (emphasis omitted).
16 Id, at 650.
17 Id
18 jd at 652.
19 id
20166 Wn. App. 283, 269 P.3d 1064, review denied, 174 Wn.2d 1007 (2012). No. 69618-1-1/8
defendant "knowingly trafficked in stolen property."21 Killingsworth claimed that
the instruction failed to require proof that he knew the property in question was
stolen.22 This court rejected his argument.23 It stated, "The most natural reading
of the adverb 'knowingly,' as used in this instruction, is that it modifies the verb
phrase 'trafficked in stolen property.'"24 Thus, it concluded that "knowingly"
modifies both "trafficked" and "stolen."25 It stated that this conclusion was
reinforced by the fact that the instruction tracks the language of the statute and
that "[t]he statute's intent is plain: to criminalize the trafficking of property known
to be stolen."26 Further, it opined that to read "knowingly" as modifying only the
word "trafficked" would lead to an "absurd result."27
More recently, this court came to a similar conclusion in State v. Zeferino-
Lopez.28 There, Felipe Zeferino-Lopez was charged with second degree identity
theft. The issue was whether the State was required to prove that Zeferino-
Lopez knew that the means of identification he used belonged to another
21 id at 288.
22 id at 289.
23 Id
24 id
25 Id
26 id
27 id
28 Wn.App. , 319P.3d94(2014).
8 No. 69618-1-1/9
person.29 In relevant part, the statute stated, "No person may knowingly obtain,
possess, use, or transfer a means of identification or financial information of
another person, living or dead . . . ."30 Citing Flores-Fiqueroa and Killingsworth,
this court concluded that the statutory term "knowingly" also refers to the
defendant's knowledge that the means of identification belonged to another
person.31
Here, the statute states that a person is guilty of indecent exposure if he or
she "intentionally makes any open and obscene exposure of his or her
person or the person of another. . . ."32 Like the cases discussed previously, the
most natural reading of this statute and the instructions is that the adverb
"intentionally" modifies the verb phrase "makes any open and obscene
exposure." Read this way, "intentionally" not only modifies "make," but it also
modifies "open" and "obscene." Accordingly, the State was required to prove not
only that Swanson intended to masturbate, but also, that he intended that the
masturbation be "open and obscene."
Accordingly, the next question is whether the prosecutor misstated the law
during rebuttal. We conclude that he did.
Again, the jury instructions stated:
29 Zeferino-Lopez, 319 P.3d at 96.
30 id (quoting RCW 9.35.020(1)).
31 Id. at 96-97 (citing Flores-Fiqueroa, 556 U.S. 646; Killingsworth, 166 Wn. App. 283).
32RCW9A.88.010(1). No. 69618-1-1/10
Instruction No. 7
A person commits the crime of indecent exposure when he or she intentionally makes any open and obscene exposure of his or her person knowing that such conduct is likely to cause reasonable affront or alarm, and that the person had been previously convicted of Indecent Exposure under RCW 9A.88.010.I33]
To convict the defendant of the crime of Indecent Exposure, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 25th day of May, 2011, the defendant made an open and obscene exposure of the defendant's person to [the barista];
(3) That the defendant knew that such conduct was likely to cause reasonable affront or alarm;
. . J34i
During rebuttal, the prosecutor stated:
[PROSECUTOR]: [T]he defense would have you believe that [Swanson] has to intend that it be open and intend that it be obscene, apparently. But what this [Instruction No. 7] says is, he has to intend the exposure, and the exposure has to be open and obscene, which it was in this case, which is exactly why Instruction Number 8 is broken up much more specifically, and it's phrased in a different order. It [Instruction No. 8] makes crystal clear that [Swanson] had to make—it doesn't say anything about intend, it says "make"—an open and obscene exposure of his person to [the barista]. And then number (2) is where the intent comes, where it says that he intended to act. That's why I spent the time earlier saying you don't have to intend it to be a crime; you have to intend the act that turns out to be a crime.
33 Clerk's Papers at 45.
34 Id. at 46.
10 No. 69618-1-1/11
[DEFENSE COUNSEL]: I'm going to object, your Honor.
THE COURT: Overruled. The jury will have the instructions which I have given. Those are the instructions which apply.[35]
Additionally, the prosecutor stated, "[D]on't focus on the first half of the
sentence in [Instruction] Number 7 and ignore the context, the definitions and,
specifically, [Instruction] Number 8, which is what you have to step through."36
The prosecutor's argument stated that the jury only had to find that
Swanson intended the act, but not that it had to find that Swanson intended the
act to be open and obscene. Because a plain reading of the statute and the
instructions shows that this is not the law, the prosecutor's argument was a
misstatement.
Prejudice
Swanson must also prove that he was prejudiced from this misstatement
of the law. He argues that there was a substantial likelihood that the prosecutor's
misconduct affected the verdict. Specifically, he asserts that the misconduct
"effectively deprived] the defense of its ability to argue its theory of the case."
We disagree.
"Where improper argument is claimed, the defense bears the burden of
establishing the impropriety of the prosecuting attorney's comments as well as
their prejudicial effect."37 "Reversal is not required ifthe error could have been
35 Report of Proceedings (Oct. 16, 2012) at 137-38 (emphasis added).
36idat138.
37 State v. Gentry, 125 Wn.2d 570, 596, 888 P.2d 1105 (1995). 11 No. 69618-1-1/12
obviated by a curative instruction, which the defense did not request."38 "If the
defendant objected at trial, the defendant must show that the prosecutor's
misconduct resulted in prejudice that had a substantial likelihood of affecting the
jury's verdict."39
"Instead of examining improper conduct in isolation, [a reviewing court]
determine[s] the effect of [the] prosecutor's improper conduct by examining that
conduct in the full trial context, including the evidence presented, 'the context of
the total argument, the issues in the case, the evidence addressed in the
argument, and the instructions given to the jury.'"40 When a trial court overrules a
defendant's timely objection to the State's improper comment, the trial court may
"len[d] an aura of legitimacy to what was otherwise improper argument."41 This
may "increase[ ] the likelihood that the misconduct affected the jury's verdict."42
Here, Swanson's theory of the case was that "[i]t's only a crime to
masturbate in your car if you intend for someone there to see what you are
doing and to—with the knowledge that they are going to be alarmed at the sight
of it."43 Defense counsel argued during closing, "The intention is that it be open;
38 id
39 State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
40 State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).
41 See State v. Davenport. 100 Wn.2d 757, 764, 675 P.2d 1213(1984).
42 State v. Perez-Meiia. 134 Wn. App. 907, 920, 143 P.3d 838 (2006).
43 Report of Proceedings (Oct. 16, 2012) at 130-31 (emphasis added). 12 No. 69618-1-1/13
that it be seen by someone else. That's what the State has to prove beyond a
reasonable doubt, that Mr. Swanson, in going through that Espresso drive-
through, intended that barista to see what he was doing in his car."u
Essentially, Swanson equated "open" to being seen. But "open" does not
mean "seen" as Swanson argues. Rather, "open" as it is used in the statute,
describes the place of the exposure.
In 1983, in State v. Savler, Division Two analyzed the public indecency
statute.45 There, Chris Sayler was convicted of public indecency after he
masturbated in front of two boys in his garage. On appeal, Division Two
concluded that the statute was ambiguous about whether the State was required
to prove that the offense occurred in a public place.46 The version of the statute
at issue in that case stated: "A person is guilty of public indecency if he makes
any open and obscene exposure of his person or the person of another. .. ."47 Notably, in reaching its conclusion, the court stated that the legislature "would not
in this context have used 'open' as an adjective to 'exposure' because the words
are synonyms."48 It further stated, "Therefore, it is logical to assume that 'open'
44 ]d at 131 (emphasis added).
45 36 Wn. App. 230, 673 P.2d 870 (1983).
46 id at 231-32.
47 id at 232 (emphasis omitted) (quoting former RCW 9A.88.010(1) (1975)).
48 ]d at 236.
13 No. 69618-1-1/14
is used in relation to, and in the same sense as, 'public' Thus, the forbidden
conduct is public conduct, and public, in the context, must refer to place."49
Following Sayler, the legislature amended the statute to rename the crime
from "public indecency" to "indecent exposure."50 But the legislature did not
remove the word "open" from the statute.51 The statute was amended as follows:
"A person is guilty of indecent exposure if he intentionally makes any open and
obscene exposure of his person or the person of another. . . ,"52 The legislature
was aware of Sayler when it amended the statute, as evidenced by the bill report
for the amendment.53
In State v. Dubois, this court stated that the legislature created ambiguity
when it changed the title of the crime but did not remove the word "open," which
was interpreted in Sayler to mean "public."54 But, after applying general rules of
statutory construction, this court stated, "Nevertheless, it is apparent that the
Legislature intended to make it possible to indecently expose oneself in a private
49 Id.
50 See State v. Dubois, 58 Wn. App. 299, 301-02, 793 P.2d439 (1990) (citing former RCW 9A.88.010 (1975), former RCW 9A.88.010(1) (1987)).
51 See former RCW 9A.88.010(1) (1987).
52 \±
53 Dubois. 58 Wn. App. at 302 (citing Final Bill Rep. on S.B. 6012, 50th Leg., 1st Spec. Sess. (Wash. 1987)) (stating "A 1983 Washington Court of Appeals decision held that, under the current statute, an exposure of one's person must occur in a public place to constitute the crime of public indecency. It remains doubtful whether an individual can be convicted of public indecency where the offense occurs in a private place.").
54 58 Wn. App. 299, 303, 793 P.2d 439 (1990).
14 No. 69618-1-1/15
place."55 Accordingly, this court also interpreted "open" to describe the place of
the exposure—interpreting it to include both private and public places.
This court recently reaffirmed this view in State v. Vars when this court
stated, "[T]he gravamen of the crime is an intentional and 'obscene exposure' in
the presence of another that offends society's sense of 'instinctive modesty,
human decency, and common propriety.'"56 This court also stated, "So long as
an obscene exposure takes place when another is present and the offender
knew the exposure likely would cause reasonable alarm, the crime has been
committed."57 And it stated, "Simply because RCW 9A.88.010 requires an
exposure of genitalia in the presence of another, it does not mean that the
other person must observe the defendant's private parts for an indecent
exposure to have occurred."58 The emphasized provisions above indicate that
"open" means "in the presence of another." Further, Vars makes clear that the
other person need not see the defendant's private parts for there to be an
indecent exposure. Moreover, there is nothing in the plain language of the
statute to suggest that "open" means "seen."
Accordingly, because "open" describes the place of the exposure,
Swanson was not "deprived" of the ability to argue his theory of the case. As
55 id at 304.
56157 Wn. App. 482, 491, 237 P.3d 378 (2010) (emphasis added).
57 ]d (emphasis added).
58 id. (emphasis added).
15 No. 69618-1-1/16
discussed previously, the State did not have to prove that Swanson intended for
the barista to see what he was doing.
Next, looking to the evidence presented, we conclude that there was
overwhelming evidence presented to prove that Swanson intended the exposure
to be open—i.e. in the presence of another. Swanson drove up to the espresso
stand and stopped about a foot back from the service window. The barista was
standing at the window. Swanson spoke to the barista and ordered an espresso
drink. He was masturbating while the barista continued to stand near the window
and make his drink. Swanson handed the barista his credit card while his other
hand was on his penis. Swanson filled out the receipt and handed it to the
barista while he remained exposed. Moreover, as the State points out, there was
no evidence that Swanson accidentally or mistakenly drove up to the window. In
sum, there was overwhelming evidence that Swanson intended the exposure to
be "open."
Swanson argues that the trial court erred when it overruled defense
counsel's objection and in doing so "put its stamp of approval on the prosecutor's
interpretation." It is true that this action "lent an aura of legitimacy to what was
otherwise improper argument."59 Further, it increased the likelihood that the
misconduct affected the jury's verdict.60 But the misstatement of the law by the
State did not deprive Swanson of the ability to argue his theory of the case. That
theory was also an erroneous statement of the law. Moreover, on this record, it
59 See Davenport, 100 Wn.2d at 764.
60 See Perez-Meiia, 134 Wn. App. at 920. 16 No. 69618-1-1/17
is clear that Swanson intended for his actions to be open and obscene, as the
statute requires.
For these reasons, Swanson fails to establish prejudice warranting
reversal of his conviction.
We affirm the judgment and sentence. 6o?{,T. WE CONCUR:
Hi