Filed Washington State Court of Appeals Division Two
June 11, 2024
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57790-9-II
Respondent,
v. UNPUBLISHED OPINION CHRISTOPHER R. DAMITZ,
Appellant.
PRICE, J. — Christopher R. Damitz “came to Wahkiakum County for one reason: to steal.”
This statement by the State was, according to Damitz, an improper thematic catchphrase
that constituted prosecutorial misconduct in his trial for one count of second degree burglary, three
counts of second degree identity theft, one count of third degree assault, and one count of making
or having burglary tools. Not only does Damitz argue that the State committed prosecutorial
misconduct by using this phrase in its opening statement and closing argument, but he also argues
that he received ineffective assistance of counsel when his counsel failed to object to it.
We reject Damitz’s arguments and affirm.
FACTS
I. BACKGROUND
In September 2021, Cynthia Preece received an alert from her security system notifying
her that something was on her deck. Video footage would show two men arriving at her property. No. 57790-9-II
The two men began searching the property for security cameras, tampering with several of the
cameras, and stealing property from a shed. Preece called 911.
Law enforcement discovered that Preece’s driveway gate had been removed from its hinges
and a storage shed was missing numerous items. Law enforcement obtained the security footage,
and information was put out to the public about the incident.
Three days later, a Wahkiakum County Sheriff’s Office deputy discovered Damitz passed
out in the driver’s seat of a car that was blocking the road near a wildlife refuge. Also in the car
was Damitz’s girlfriend, Karie Taylor. Tinfoil squares and a clear glass pipe were observed inside
the car. When asked for identification, Damitz responded that he did not have any identification,
but he provided the name and birthdate of his brother, Joseph Damitz, and an address in Puyallup.
The deputy was unable to determine that Damitz was not his brother, so he merely referred Damitz
for drug treatment.
Meanwhile, later that same day, a ferry captain called law enforcement to report he had
seen someone leave the ferry who resembled one of the suspects from the Preece burglary. Law
enforcement searched the area and discovered Damitz and Taylor in a car. Damitz was asked for
identification, and he again provided his brother’s name and date of birth. At the time, Damitz
had a full beard with sideburns and was wearing a baseball hat. Damitz and Taylor denied any
involvement in suspicious activity in the area, so they were allowed to drive away.
After Damitz and Taylor drove away, the deputy accessed Joseph Damitz’s driver’s license
information and immediately suspected that it was not the same person he had let drive away. The
deputy then compared a still image from the video footage of the Preece burglary to Christopher
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Damitz’s driver’s license records and determined that it was Damitz, not his brother, that he had
encountered.
Several days later, law enforcement recovered a stockpile of stolen property that had been
left on an embankment in the wildlife refuge. Some of the recovered property was from the Preece
burglary.
About five months later, in February 2022, a deputy saw a man with a backpack and woman
walking along a road late at night. The pair were about half of a mile from the nearest building.
The deputy stopped and requested their identification. Yet again, Damitz gave his brother’s name
and date of birth. But the deputy was unpersuaded and, suspecting that Damitz was involved in
an earlier burglary, the deputy called for backup to assist in arresting Damitz.
When the backup arrived, Damitz jumped the guard rail to the road and began running
away down a steep embankment. Both deputies pursued, resulting in a struggle. During the
struggle, Damitz dropped a few items (tools from his backpack) and kicked one of the deputies.
Damitz was eventually arrested.
Law enforcement searched Damitz’s backpack and discovered several items that are
commonly referred to as a “burglary kit” when found together, including a pair of wire cutters, a
screwdriver, drill bits, gloves, keys, valve stem covers, bolt cutters, a drill index, a cordless driver
drill, and a crow bar.
Following its investigation, the State charged Damitz with two counts of second degree
burglary, three counts of second degree identity theft, one count of third degree assault, one count
of making or having burglary tools, one count of possession of another’s identification, and one
count of resisting arrest.
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II. OPENING STATEMENTS
The case proceeded to a jury trial. The State began its opening statement with,
May it please the Court, Counsel, members of the jury. Christopher R. Damitz came to Wahkiakum County for one reason: to steal.
Verbatim Rep. of Proc. (VRP) at 229 (emphasis added). Damitz did not object.
After making this statement, the State proceeded to lay out the evidence that it expected to
introduce. It then ended its opening statement by returning to its opening theme, stating:
At the end of this trial, the State will ask you to find the Defendant guilty for the burglary of Cynthia Preece’s shed . . . three counts of identity theft in the second degree for each time he gave his brother’s name and date of birth to the officers to avoid arrest; assault in the third degree, when he kicked [the deputy]; and making or having burglary tools the night that he was arrested. Because Mr. Damitz came to Wahkiakum County for one reason, to steal.
VRP at 237 (emphasis added). Damitz did not object.
III. TRIAL TESTIMONY
Following opening statements, the case proceeded to trial testimony. Preece and the
investigating detectives testified consistently with the above facts. One of the deputies further
testified that Damitz currently looked different than when he arrested him several months earlier;
Damitz had changed his facial hair, his face was thinner, and his skin was clearer.
Also testifying for the State was Damitz’s girlfriend, Taylor. The State showed her a
Facebook photograph of Damitz, which she confirmed was a fair and accurate depiction of
Damitz’s appearance during their relationship.
Several items were admitted into evidence, including photographs and video footage (and
a still image from the footage) of the Preece burglary, the Facebook photograph of Damitz, a
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photograph of his Washington driver’s license with a Puyallup address, and photographs of the
tools found in the backpack. Thereafter, the State rested.1
Damitz did not call any witnesses and rested.
IV. JURY INSTRUCTIONS AND CLOSING ARGUMENTS
The trial proceeded to jury instructions. The trial court instructed the jury to disregard any
remark, statement, or argument that was not supported by the evidence. The jury was also
instructed to decide the case impartially and without prejudice.
Following the instructions to the jury, the State began its closing argument with the same
theme from its opening statement. The State argued,
Christopher Damitz came to Wahkiakum County for one reason: to steal. I told you that at the beginning of my opening statement. And you’ve heard the evidence throughout the past three -- two, now into our third day of trial. The State’s going to ask you to find the Defendant guilty of all the charges that are going to be before you this morning.
VRP at 492 (emphasis added). Damitz did not object to the State’s remarks.
The State then summarized the relevant trial evidence that proved each charge. With
respect to the burglary count, the State argued that Damitz was one of the suspects captured in the
Preece burglary video footage. The State reminded the jury of Taylor’s testimony, when she stated
that Damitz was the person depicted in a Facebook photograph, and urged the jury to see the strong
resemblance between the person in the video still image and the Facebook photograph. The State
noted that, in both, the person was wearing a baseball hat backwards, was smoking a cigarette at
the same angle, and had the same facial features.
1 After the State rested, the trial court dismissed one burglary count, unrelated to the Preece burglary, based on insufficient evidence.
5 No. 57790-9-II
The State also argued that Damitz’s connection to the recovered stolen property was
evidence of his guilt. The State reminded the jury that several days after law enforcement found
Damitz passed out in his car, some of Preece’s stolen property was recovered from a nearby
location—an embankment in the wildlife refuge.
After discussing the burglary count, the State moved on to the identity theft counts. The
State argued that the evidence showed Damitz had knowingly provided law enforcement with his
brother’s name and date of birth on three occasions and, thus, intended to make a false or
misleading statement to a public servant.
The State next discussed the third degree assault evidence, recounting the direct testimony
from the deputies that established that Damitz had kicked one of the deputies while trying to escape
down an embankment.
Thereafter, the State moved on to the last of the charges submitted to the jury, making or
having burglary tools, and argued that the evidence demonstrated Damitz had committed the crime
of having burglary tools because his backpack clearly contained numerous burglary tools. In
addition, several other burglary tools had fallen out of the backpack during his struggle with
deputies. The State contended that Damitz intended to use the tools in a burglary because he was
found with them while he walked on the side of a road late at night in the vicinity of residences.
The State concluded its closing argument by again referencing its theme,
Ladies and gentlemen, the Defendant came to Wahkiakum County for one reason[:] to steal. And the State asks that you find him guilty of all counts.
VRP at 503. Damitz did not object.
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Damitz then began his closing argument with the theory that the State had not met its
burden of proof on each charge. For example, Damitz did not dispute that the Preece burglary
occurred, but he argued that the evidence did not prove it was him who committed the burglary.
Damitz also contended that he gave law enforcement his brother’s name only to avoid being
arrested for his outstanding warrants, which he claimed was not a crime. Although Damitz
conceded he may have kicked the deputy, he argued he did not intend to kick him, his intent was
merely to run away. And, finally, with respect to the burglary tools charge, Damitz contended that
at the time he was contacted by law enforcement, he was more than half of a mile from the nearest
building—meaning there was nothing for Damitz to break into.
V. VERDICT, SENTENCING, AND APPEAL
The jury found Damitz guilty of all counts that were submitted to the jury.2 At sentencing,
the trial court sentenced Damitz to 68 months of confinement.3
Damitz appeals.
ANALYSIS
Damitz makes two arguments on appeal, both related to the State’s theme that Damitz came
to the county for “one reason: to steal.” Br. of Appellant at 15. First, Damitz argues that the State
committed prosecutorial misconduct by using this allegedly improper theme during its opening
2 Before trial, Damitz pleaded guilty to the possession of another’s identification and resisting arrest. 3 The trial court also imposed the $500 victim penalty assessment (VPA) after finding Damitz indigent. Initially, Damitz argued in this appeal that the VPA should be stricken. However, in October 2023 after this appeal was filed, the trial court struck the VPA from Damitz’s judgment and sentence. In his reply brief, Damitz concedes that no action on the VPA is now necessary. Accordingly, we do not further address the VPA.
7 No. 57790-9-II
statement and closing argument. Second, Damitz argues that his counsel was ineffective during
trial for failing to object to the State’s theme.
We address each argument in turn.
I. PROSECUTORIAL MISCONDUCT
Damitz first argues that the State’s theme was an improper thematic catchphrase and the
State committed prosecutorial misconduct by using the theme during its opening statement and
closing argument. We disagree.
A. LEGAL PRINCIPLES
In a prosecutorial misconduct claim, the defendant bears the burden of showing that the
prosecutor’s conduct was improper and prejudicial. State v. Emery, 174 Wn.2d 741, 756, 278 P.3d
653 (2012). Generally, we first evaluate whether the prosecutor’s conduct was improper. Id. at
759. If the prosecutor’s conduct was improper, we then determine if the conduct prejudiced the
defendant. Id. at 760. Prejudice is established by showing a substantial likelihood that the
prosecutor’s misconduct affected the verdict. Id.
However, if the defendant fails to object to the State’s remarks at trial, any error regarding
prosecutorial misconduct is deemed to have been waived unless the misconduct was “so flagrant
and ill[-]intentioned that [a jury] instruction could not have cured the resulting prejudice.” Id. at
760-61.
B. APPLICATION
Damitz argues that the State committed prosecutorial misconduct by using its improper
theme twice in its opening statement and twice in closing argument. He argues that the State’s use
of the theme was improper not only because it was unsupported by the evidence but also because
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it improperly appealed to the hometown instincts of the jury. According to Damitz, the State’s
hyperbole improperly juxtaposed county residents versus outsiders and was intended to emphasize
to jurors that Damitz was not one of them.
Damitz further argues that the misconduct could not have been cured with an instruction
from the trial court because the State repeated the theme several times. Damitz contends that the
“ ‘cumulative effect of repetitive prejudicial prosecutorial misconduct may be so flagrant that no
instruction or series of instructions can erase their combined prejudicial effect.’ ” Br. of Appellant
at 19 (quoting State v. Walker, 164 Wn. App. 724, 737, 265 P.3d 191 (2011), adhered to on
remand, 173 Wn. App. 1027 (2013)). Relying on our decision in Walker, Damitz suggests that
because the State repeated the remark multiple times, the impact of any potential curative
instruction would have been reduced. Damitz suggests he can show prejudice because the State’s
evidence of guilt was weak and, so, without the improper theme, Damitz likely would not have
been convicted. We disagree.
Damitz failed to object to the State’s theme. Therefore, even assuming, without deciding,
that the State’s remarks were improper, Damitz waived any error unless he is able to show that the
prosecutor’s misconduct was so flagrant and ill-intentioned that an instruction could not have cured
any resulting prejudice. See Emery, 174 Wn.2d at 760-61. This standard sets a much higher
threshold for reversal than when a defendant makes a timely objection. State v. Loughbom,
196 Wn.2d 64, 74, 470 P.3d 499 (2020).
Indeed, when defense counsel fails to object to alleged instances of prosecutorial
misconduct, the conduct must be severe before courts will find the alleged misconduct was so
flagrant and ill-intentioned that an instruction could not have cured any resulting prejudice. In re
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Pers. Restraint of Phelps, 190 Wn.2d 155, 170-71, 410 P.3d 1142 (2018) (discussing the “level of
severity” necessary in its precedent, our Supreme Court said, “We have found prosecutorial
misconduct to be flagrant and ill[-]intentioned in a narrow set of cases where we were concerned
about the jury drawing improper inferences from the evidence, such as those comments alluding
to race or a defendant’s membership in a particular group, or where the prosecutor otherwise
comments on the evidence in an inflammatory manner.” (emphasis added)).
As an example of the necessary severity of the State’s conduct, in State v. Walker, our
Supreme Court reversed a defendant’s conviction where a prosecutor superimposed “guilty beyond
a reasonable doubt” over a defendant’s booking photo in bold red letters and labeled over 100
PowerPoint slides with the caption “defendant Walker guilty of premeditated murder.” State v.
Walker, 182 Wn.2d 463, 468, 341 P.3d 976 (2015) (boldface and capitalization omitted) (internal
quotation marks omitted).4 The Walker court held that the defendant met his burden of showing
that the misconduct that was so prejudicial and flagrant that it denied him of his right to a fair trial.
Id. at 480-81. The court reasoned that the voluminous number of slides showing statements of the
prosecutor’s belief as to the defendant’s guilt, shown to the jury just before it was excused for
deliberations, was “presumptively prejudicial” and might be difficult to overcome even with a
curative instruction. Id. at 479.
Here, Damitz makes no meaningful attempt to argue that the State’s alleged misconduct
was flagrant and ill-intentioned. And any such argument would be unpersuasive in the face of the
4 Our Supreme Court’s 2015 decision in State v. Odies Delandus Walker, 182 Wn.2d 463, has no relation to our 2011 decision, State v. Aquarius Tyree Walker, 164 Wn. App. 724, referenced above.
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high bar set by our Supreme Court. Although the State referenced its theme twice in its opening
statement and twice in closing argument, the theme was not so inflammatory that it comes close
to the level our precedent suggests is necessary to meet the “flagrant and ill[-]intentioned”
standard. The statements, even if improper, have no similarity to those involved in the “narrow
set of cases” which involve conduct that threatens the fairness of a defendant’s trial. See Phelps,
190 Wn.2d at 170.
And while it is true that repetitive remarks used to develop themes may reduce the impact
of a curative instruction, it seems unlikely that if the trial court had decided to sustain an objection
to the State’s theme, that the State would have repeated its theme again. And although Damitz
relies on our decision in Walker to underscore the potential for increased impact with repeated
misconduct, that case actually supports a rejection of Damitz’s argument here. 164 Wn. App. at
730-36. In Walker, the State made roughly ten improper remarks throughout closing argument
and in rebuttal. Id. Additionally, the State’s improper points in Walker were not simply said,
many were also included on PowerPoint slides as visual aids for emphasis. Id. at 738. Here, unlike
in Walker, the State’s remarks were made only twice in closing argument, were not repeated in
rebuttal, and were never included on PowerPoint slides.
Damitz has not met his burden of demonstrating that the alleged misconduct was so flagrant
and ill-intentioned that an instruction could not have cured any resulting prejudice. Thus, even if
the State’s theme constituted misconduct, we hold that Damitz’s prosecutorial misconduct claim
fails.
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II. INEFFECTIVE ASSISTANCE OF COUNSEL
Related to his prosecutorial misconduct claim, Damitz next argues that he received
ineffective assistance of counsel when his defense counsel failed to object to the State’s theme.
We disagree.
To show ineffective assistance of counsel, the defendant must demonstrate that their
counsel’s performance was deficient and the deficient performance prejudiced the defendant.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.
Vazquez, 198 Wn.2d 239, 247-48, 494 P.3d 424 (2021). Failure to establish either prong is fatal
to the claim. Strickland, 466 U.S. at 700.
Counsel’s performance is deficient if it falls below an objective standard of reasonableness.
Vazquez, 198 Wn.2d at 247-48. Generally, to show that trial counsel was deficient, “the defendant
must show in the record the absence of legitimate strategic or tactical reasons supporting the
challenged conduct by counsel.” State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
We strongly presume that counsel’s performance was reasonable. State v. Grier, 171 Wn.2d 17,
33, 246 P.3d 1260 (2011).
To show prejudice—the second prong of the Strickland test—the defendant must
demonstrate a reasonable probability that the outcome of the proceeding would have been different
if counsel had not performed deficiently. State v. Johnson, 12 Wn. App. 2d 201, 210, 460 P.3d
1091 (2020), aff’d, 197 Wn.2d 740, 487 P.3d 893 (2021).
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Damitz argues his counsel’s failure to object to the State’s theme was deficient
performance because there was no legitimate trial strategy behind failing to object to any theme
that portrayed Damitz as a “marauding outsider.” Br. of Appellant at 22. And, as with his
prosecutorial misconduct claim, Damitz contends that he was prejudiced because the State’s
evidence of Damitz’s guilt was weak.
However, just like his prosecutorial misconduct claim, even assuming that counsel was
deficient for failing to object to the State’s theme, Damitz cannot show prejudice under the second
prong of the Strickland test. See Johnson, 12 Wn. App. 2d at 210, 213.
Aside from merely asserting that the State’s evidence of guilt was weak, Damitz offers no
compelling analysis demonstrating his point. In fact, the opposite is true. The strong evidence of
Damitz’s guilt prevents his ability to establish prejudice.
Regarding the burglary count, video footage showed a person resembling Damitz
burglarizing Preece’s shed. In addition to the video footage of the burglary, the jury had a still
image, Damitz’s Facebook photo, and Damitz’s driver’s license, together with his girlfriend’s
testimony that the Facebook photograph was a fair and accurate depiction of what Damitz looked
like at the time of the burglary. Given all of these similarities, there is no reasonable probability
that the results of the trial would have been different even if defense counsel had objected to the
State’s theme.
As for the other charges, the evidence of Damitz’s guilt was also strong. With respect to
identity theft, the State introduced direct testimony from law enforcement that Damitz gave his
brother’s name and date of birth on three occasions when they asked him for his identification.
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Similarly, the State offered direct testimony from the deputies about Damitz’s assault. Lastly, with
regard to the making or having burglary tools charge, law enforcement found Damitz in possession
of many “burglary kit” tools during his arrest. Although Damitz may have been some distance
from the nearest residence at the time of his arrest, the fact that he was walking on the side of the
road with a backpack of burglary tools late at night suggested, as the jury found, that Damitz
intended to use the tools in a burglary.
Given the strength of the State’s evidence as to these charges, there is no reasonable
probability that the outcome of the proceeding would have been different even if Damitz had
objected to the State’s remarks. Accordingly, Damitz’s ineffective assistance of counsel claim
fails.5
CONCLUSION
We affirm.
5 The risk of prejudice to Damitz from the jury considering arguments unsupported by the evidence and appeals to passion and prejudice were further minimized by the trial court’s limiting instruction. The trial court instructed the jury to disregard any remark, statement, or argument that is not supported by the evidence, to act impartially, and to not let emotions overcome rational thought. We presume the jury follows the trial court’s instructions. State v. Clark, 187 Wn.2d 641, 654, 389 P.3d 462 (2017).
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
PRICE, J. We concur:
VELJACIC, A.C.J.
GLASGOW, J.