Filed Washington State Court of Appeals Division Two
September 28, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 54335-4-II
Respondent,
v.
ROBERT JESSE HILL, PART PUBLISHED OPINION
Appellant.
VELJACIC, J. — Robert Hill appeals his conviction for malicious mischief in the second
degree, felony harassment, and burglary in the first degree. The charges stemmed from an incident
where Hill was denied service at Urban Bud dispensary and refused to leave. Subsequently Hill
engaged in a physical altercation with the security guard and then purposefully destroyed display
cases and merchandise.
Hill argues that his right to a fair trial was tainted by jury misconduct and that the trial court
abused its discretion by denying his motion for a mistrial. Hill also argues that the State violated
his right to a unanimous verdict by failing to prove both alternative means of committing burglary,
that the prosecutor committed misconduct by urging the jury to speculate about evidence outside
the record and by misstating the burden of proof, and that cumulative error denied his right to a
fair trial. Hill asserts that the trial court abused its discretion by failing to consider his request for
an exceptional sentence. In his statement of additional grounds (SAG), he also argues that the
State failed to present sufficient evidence of burglary in the first degree, he received ineffective
assistance of counsel, and the prosecutor committed misconduct. 54335-4-II
In the published portion of this opinion, we conclude that the court did not abuse its
discretion in denying Hill’s motion for a mistrial because Hill failed to show juror misconduct. In
the unpublished portion, we conclude that burglary in the first degree is not an alternative means
crime, and the State produced sufficient evidence to support the conviction. Additionally, we
conclude that the prosecutor did not commit misconduct, Hill was not prejudiced by cumulative
error, and the trial court did not abuse its discretion because it did not categorically refuse to
consider mitigating evidence at sentencing. Finally, we conclude that Hill’s SAG claims have no
merit. Accordingly, we affirm.
FACTS
I. INCIDENT AT URBAN BUD
On August 31, 2019, Hill walked into Urban Bud dispensary. Hill had consumed several
alcoholic drinks that afternoon and evening. Upon entering Urban Bud, Hill stopped just inside
the door at a podium that acted as a “security check-in station.” 3 Report of Proceedings (RP) at
214. Hill began to write on a clipboard on the podium, erroneously believing it was a sign-in sheet.
Alvaro Salaverry, in his position as security guard, was in charge of checking customer
identification before allowing them in the store. Salaverry was not at the station when Hill entered,
but returned and asked Hill to leave, Hill refused, and eventually attempted to walk past Salaverry
into the store. Salaverry grabbed Hill by his back pocket, pulling him backwards, and causing him
to fall. They struggled and at one point Salaverry attempted to drag Hill out of the front door.
Eventually, Salaverry restrained Hill by kneeling on his back or shoulder.
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After hearing shouting from the front of the store, the store manager Christian Muridan
walked over and saw Salaverry on the ground struggling to restrain Hill, who was “incoherent
[and] screaming.” 3 RP at 203. Muridan smelled alcohol when he approached and told Hill that
he needed to leave “at least five times in his face,” but received no response or acknowledgement
that Hill had heard him. 3 RP at 203. Muridan called the police. Another employee, Ashlyn
Thomas, also smelled alcohol when she approached and saw Hill “sprawled out on the ground
screaming.” 4 RP at 346. Thomas heard Hill yell for someone to call the police because someone
was hurting him. Muridan told Salaverry to let Hill up to allow him to leave. Hill stood up and
ran toward the back of the store and tried to kick open the unmarked door of the employee
breakroom.
Salaverry tackled Hill in the breakroom doorway and attempted to restrain him with his
arm around Hill’s neck. Hill continued to shout and eventually turned his head and bit Salaverry’s
forearm, causing Salaverry to release him. Hill kicked out at Salaverry, grazing his nose. Hill got
up off the floor, picked up the jug and base of a water dispenser from inside the breakroom and
threw it into the middle of the store. He then began kicking nearby display cases containing glass
paraphernalia, damaging the display’s glass, doors, and contents.
Urban Bud had significant security measures including a security camera system that
captured the incident from multiple angles.
The police eventually arrived and placed Hill under arrest. The State charged Hill by
amended information with assault in the second degree, malicious mischief in the second degree,
felony harassment, and burglary in the first degree. The matter proceeded to a jury trial.
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II. JURY DELIBERATIONS
After the close of evidence, the jury began deliberating in the afternoon and continued into
a second day. At 10:03 AM, the jury submitted a questions to the court.1 At 10:42, the jury
informed the judicial assistant (JA) that it was deadlocked on one of the counts. At 10:51, juror 2
informed the JA that they wanted to leave, and when the jury was excused for a break 20 minutes
later, juror 2 further informed the JA that they were “getting threats.” 6 RP at 534.
After consulting with the parties about juror 2’s complaints, the judge polled the jury on
whether it could reach a verdict on the remaining count and the jury unanimously agreed that it
could not. Hill and the State agreed that the jury was deadlocked and agreed to voir dire juror 2 to
determine whether they could continue to deliberate. The court then engaged in the following
colloquy with juror 2:
THE COURT: . . . I am going to ask that you not disclose anything about the—who’s voted how or what the actual vote is on any count at this point. Based on my polling of the jury, I understand that the jury is unable to agree on one of the counts. I don’t know what that is. I don’t want to know at this point. JUROR NO. 2: Okay. THE COURT: But I was concerned about the fact that you indicated to [the JA] that at one point you felt like you needed to leave JUROR NO. 2: Uh-huh. (Juror answers affirmatively.). THE COURT: And we[‘]re concerned about the way another or other jurors had been addressing you. JUROR NO. 2: Yes. THE COURT: And I think that you had indicated to [the JA] that it was threatening or felt? JUROR NO. 2: Yes. THE COURT: Could you go into a little more detail without letting us know how the jury has voted or who has voted?
1 The jury asked, “Is it necessary that the defendant spoke a threat to kill Salaverry for it to be a threat? Can the threat be a perceived act or behavior?” 6 RP at 530. The court responded, “Please review Instruction 22.” 6 RP at 530. The jury also asked, “If defendant is guilty of criminal trespass, can he also claim self-defense?” 6 RP at 531. The court answered, “Please refer to Instruction 31.” 6 RP at 532.
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JUROR NO. 2: That it—karma should come back at me, and someone should come to my house and do that to me, and [juror X] hopes that I am the next person that that happens to if I don’t agree with [them]. THE COURT: . . . Do you think at this time you can continue[?] JUROR NO. 2: Yes, I can.
6 RP at 541-43.
Hill’s counsel also questioned the juror and confirmed what juror X said, and that juror 2
had felt threatened by it.
The court opined that it did not believe it needed to dismiss or replace juror 2 because they
indicated that they could continue, and the presiding juror indicated that the jury had been able to
reach a verdict on three of the counts. The State agreed. Defense counsel moved for a mistrial,
arguing, “Because we don’t know when in the deliberation process those threats occurred, we don’t
know if that was for a particular count. . . . And it’s clear that [Juror 2] feels intimidated; although,
[the juror] felt that [they] could continue. You know, we can’t unring that bell.” 6 RP at 545. The
court opined that it was not “that unusual for deliberations to get heated and people to say untoward
things.” 6 RP at 546. The court then denied the motion for a mistrial.
The jury found Hill guilty of malicious mischief in the second degree, felony harassment,
and burglary in the first degree, but did not reach a verdict on assault in the second degree. The
court polled the jury and confirmed the verdict. Hill appeals.
ANALYSIS
I. JUROR MISCONDUCT
Hill argues that juror X committed misconduct that violated his right to a fair trial by an
impartial jury when they threatened another juror. He also argues that the trial court erred by
failing to grant a mistrial or ensuring that he was not prejudiced by interviewing other jurors. Hill
contends that because the error was structural, it was not harmless.
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The State argues that we should not consider the alleged misconduct because it inhered to
the verdict, and therefore, the court did not abuse its discretion in denying the motion for a mistrial.
The State also argues that Hill fails to prove that the juror’s comment was misconduct, rather than
just a heated discussion. We agree that Hill failed to prove juror misconduct.
A. Juror 2’s Testimony Does Not Inhere to the Verdict
Central to the jury system is the secrecy of jury deliberations. Long v. Brusco Tug & Barge,
Inc., 185 Wn.2d 127, 131, 368 P.3d 478 (2016). Courts will not consider allegations of jury
misconduct that inhere in the verdict. In re Pers. Restraint of Lui, 188 Wn.2d 525, 568, 397 P.3d
90 (2017). “‘[F]acts linked to the juror’s motive, intent, or belief, or describ[ing] their effect upon
the jury’ or facts that cannot be rebutted by other testimony without probing any juror’s mental
processes” are matters that inhere to the verdict. Id. (internal quotation marks omitted) (quoting
Long, 185 Wn.2d at 131). “‘Only if a court concludes that juror declarations allege actual facts
constituting misconduct, rather than matters inhering in the verdict, does it proceed to decide the
effect the proved misconduct could have had upon the jury.’” Id. (internal quotation marks
omitted) (quoting Long, 185 Wn.2d at 132).
Further,
[i]t is not for the juror to say what effect the remarks may have had upon his verdict, but he may state facts, and from them the court will determine . . . the probable effect upon the verdict. It is for the court to say whether the remarks made by the juror in this case probably had a prejudicial effect upon the minds of the other jurors.
State v. Reynoldson, 168 Wn. App. 543, 548, 277 P.3d 700 (2012) (quoting State v. Parker, 25
Wash. 405, 415, 65 P. 776 (1901)); see also State v. Marks, 90 Wn. App. 980, 986, 955 P.2d 406
(1998) (“Jurors may provide only factual information regarding actual conduct alleged to be
misconduct, not about how such conduct affected their deliberations.”); State v. Forsyth, 13 Wn.
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App. 133, 138, 533 P.2d 847 (1975) (“[T]he trial court may consider statements of fact set forth in
the affidavit, but may not consider a juror’s statement of the effect such facts had upon the
verdict.”).
The testimony of juror 2 did not probe into their own or others’ mental process. Juror 2
stated what juror X said to them and that they felt threatened. They provided factual information
regarding the conduct alleged. Juror 2 did not state what effect juror X’s statements had on their
deliberations or other jurors’ thought processes. Further, the fact could be rebutted by testimony
without probing into other jurors’ mental states. The court could have called juror X, who could
have confirmed or denied that they made the threat alleged without discussing their mental process.
The fact specifically alleged here does not inhere to the verdict, so we will consider whether juror
X’s statement was misconduct.
B. The Statement Does Not Rise to the Level of Misconduct
Under the United States Constitution, the Sixth and Fourteenth Amendments guarantee
persons accused of a crime the right to a fair trial by an impartial jury. State v. Davis, 141 Wn.2d
798, 824-25, 10 P.3d 977 (2000). Article I, section 22 of the Washington State Constitution
provides a similar right. State v. Guevara Diaz, 11 Wn. App. 2d 843, 851, 456 P.3d 869, review
denied, 195 Wn.2d 1025 (2020). However, the right to a fair trial does not require a “perfect” trial.
In re Pers. Restraint of Elmore, 162 Wn.2d 236, 267, 172 P.3d 335 (2007).
A party alleging juror misconduct has the burden to show misconduct occurred.
Reynoldson, 168 Wn. App. at 547; State v. Hawkins, 72 Wn.2d 565, 568, 434 P.2d 584 (1967). A
strong, affirmative showing of misconduct is required to “overcome the policy favoring stable and
certain verdicts and the secret, frank and free discussion of the evidence by the jury.” State v.
Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631 (1994). A new trial is warranted “only where juror
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misconduct has prejudiced the defendant.” Reynoldson, 168 Wn. App. at 548; State v. Depaz, 165
Wn.2d 842, 856, 204 P.3d 217 (2009).
There is a lack of Washington case law concerning a claim of misconduct based specifically
on one juror threatening another, and none that establish what level the challenged behavior must
reach in order to be misconduct. Accordingly, we glean principles from similar Washington cases
as well as out-of-state authority to resolve the issue.
In a similar case, State v. Earl, a juror asked to be dismissed from deliberations and
presented a letter from her psychologist indicating that she should not continue because she was
in “psychological crisis” based on the fact that another juror had “verbally attacked her, called her
insulting names, and impugned her integrity.” 142 Wn. App. 768, 771, 177 P.3d 132 (2008). The
court questioned the presiding juror, and determined that there were no problems with the jury. Id.
at 773. It also questioned the juror, determined that she could not continue, and dismissed her. Id.
The court elected not to identify or question the juror who made the insulting comment and told
the jury to begin deliberations anew with an alternate juror. Id. at 771-73. Earl appealed, arguing
in part that the trial court abused its discretion in failing to grant a mistrial, and in limiting the
scope of the inquiry into the misconduct. Id. at 774. We disagreed, holding that Earl failed to
meet his burden to show misconduct and that “[a] personal remark, even a derogatory one, between
jurors during a deliberation break, is not juror misconduct if it does not involve the substance of
the jury’s deliberations.” Id. at 775-76.
Other jurisdictions have similarly held that the court must balance the interest in
maintaining the secrecy of jury deliberations with the right of the defendant to a fair trial. In order
to affect that balance, courts will generally overturn a jury verdict for misconduct only if juror
conduct is egregious enough to effect a juror’s ability to engage in free and frank deliberation.
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For example, in Colorado, courts have held that a juror’s acts constitute misconduct “only
if the alleged coercive acts [first] rise to the level of continuous violent, abusive, and profane
language and conduct threatening or amounting to physical violence against a juror.” People v.
Mollaun, 194 P.3d 411, 418 (Colo. App. 2008). “To warrant a new trial, the evidence must reveal
more than expressions of frustration, impatience, annoyance, or empty threats.” People v. Rudnick,
878 P.2d 16, 22 (Colo. App. 1993). Similarly, Minnesota courts have held that a juror’s acts rise
to misconduct when one juror commits or threatens actual physical violence towards another juror.
State v. Jackson, 615 N.W.2d 391, 396 (Minn. App. 2000). However, “[e]vidence of psychological
intimidation, coercion, and persuasion” may not be used to establish a claim of juror misconduct
in Minnesota. Id. (emphasis added).
Likewise, in Oregon, a juror commits misconduct when their actions “‘amount[] to fraud,
bribery, forcible coercion or any other obstruction of justice that would subject the offend[ing
juror] to a criminal prosecution.’” Hill v. Lagrand Indus. Supply Co., 193 Or. App. 730, 735, 91
P.3d 768 (2004) (quoting Carson v. Brauer, 234 Or. 333, 345-46, 382 P.2d 79 (1963)).
Finally, in People v. Keenan, the California Supreme Court reviewed a claim of misconduct
arising from one juror stating to another: “‘If you make this all for nothing, if you say we sat here
for nothing, I’ll kill you and there’ll be another defendant out there—it’ll be me.’” 46 Cal. 3d 478,
540, 758 P.2d 1081 (1988). There, the court concluded that the statement “was but an expression
of frustration, temper, and strong conviction against the contrary views of another panelist,” and
rejected the defendant’s motion for a new trial. Id. at 541.
As discussed above, the party alleging juror misconduct maintains the burden to show that
misconduct occurred. Reynoldson, 168 Wn. App. at 547. Based on the foregoing authorities, we
hold that a juror commits misconduct only if the alleged coercive acts rise to the level of actual or
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threatened physical violence or abuse. But mere expressions of frustration, temper, empty threats,
and strong conviction against the contrary views of another panelist are insufficient to establish a
claim of juror misconduct.2
Here, juror X, obviously disagreeing with some position taken by juror 2, told juror 2 that
“karma should come back at [them], and someone should come to [juror 2’s] house and do that to
[them], and [juror X] hopes that [juror 2 is] the next person that that happens to.” 6 RP at 542.
While at the time, juror 2 may have subjectively felt intimidated or threatened, the
statement was not a threat. See Anderson v. Miller, 346 F.3d 315, 329 (2d Cir. 2003) (holding that
a reasonable juror, standing in the shoes of the jurors who had been threatened by another juror,
would not have thought themselves to be facing a physical assault if they refused to vote for
conviction). There is no indication that the statement was more than “an expression of frustration,
temper, and strong conviction against the contrary views of another panelist.” Keenan, 46 Cal. 3d
at 541. Juror X was telling juror 2 to put themselves in the victim’s place, albeit in an extremely
offensive and disrespectful way. Furthermore, although juror 2 felt threatened, they were able to
continue deliberating. The actions were not misconduct.
We conclude that Hill has failed to meet his burden of a strong, affirmative showing of
misconduct that is “necessary in order to overcome the policy favoring stable and certain verdicts
and the secret, frank and free discussion of the evidence by the jury.” Balisok, 123 Wn.2d at 117-
18.
2 We note that, even if a party successfully demonstrates juror misconduct, such misconduct must nevertheless be prejudicial to warrant reversal. See Reynoldson, 168 Wn. App. at 548; See also Depaz, 165 Wn.2d at 856.
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C. The Court Did Not Abuse its Discretion by Failing to Conduct Further Inquiry into the Allegation of Juror Misconduct
A trial judge has broad discretion to conduct an investigation of jury problems and may
investigate accusations of juror misconduct in the manner most appropriate for a particular case.
Elmore, 155 Wn.2d. at 773-75; see also Earl, 142 Wn. App. at 774-76 (holding that the trial court
may limit the scope of its inquiry where the moving party does not satisfy its burden of proving
juror misconduct or prejudice).
“We review a trial court’s investigation of juror misconduct for abuse of discretion,” which
occurs when the trial court “acts on untenable grounds or its ruling is manifestly unreasonable.”
State v. Gaines, 194 Wn. App. 892, 896, 380 P.3d 540 (2016). We also apply the same standard
in reviewing the trial court’s denial of a mistrial, finding an abuse of discretion only when “‘no
reasonable judge would have reached the same conclusion.’” State v. Rodriguez, 146 Wn.2d 260,
269, 45 P.3d 541 (2002) (quoting State v. Hopson, 113 Wn.2d 273, 284, 778 P.2d 1014 (1989).
The court appropriately questioned the juror to which the statement had been made and
confirmed that the juror was able to continue deliberating. Both parties were given the opportunity
to question juror 2, and Hill did not ask the court to question juror X. Because Hill failed to make
any affirmative, prima facie showing of misconduct, the trial court’s limitation of its inquiry into
the alleged misconduct was not an abuse of discretion. Accordingly, the trial court also did not
abuse its discretion in denying Hill’s motion for a mistrial.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record pursuant to RCW 2.06.040, it is so ordered.
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FACTS RELATING TO UNPUBLISHED PORTION OF OPINION
I. TRIAL
At trial, Salaverry and Hill testified about their versions of events. Urban Bud employees
Muridan and Thomas, and general manager Errol Franada also testified; as did the 911 dispatcher
and the arresting police officers.
Salaverry testified that he had a background training in mixed martial arts. He testified
that when he first approached, Hill was incoherent and smelled of alcohol. The men got into an
argument over why Hill was writing on his perimeter report paperwork. Salaverry told Hill that
they were not going to sell to him because he was intoxicated and he needed to leave. Salaverry
testified that he had his arm around Hill’s neck when they were struggling on the breakroom floor
but he used a “side choke” so that one side of Hill’s neck was still exposed, leaving him able to
breathe and talk. 3 RP at 277. At some point during the struggle, Hill said to Salaverry, “I’m
going to . . . kill you.” 3 RP at 283.
Hill testified that when Salaverry first approached him, he did not identify himself as
security or an employee of the store. Although Hill was aware that he would be required to show
identification (ID) to enter the store, he testified that he asked Salaverry to talk to a manager to get
an exception because he did not have ID. Hill walked further into the store despite being asked to
leave because he wanted to speak to a manager. He testified that he ran to the back of the store
looking for an exit and didn’t use the front door because he was afraid of Salaverry who was
standing in his way. Hill testified that he bit Salaverry because “he was hurting [him] . . . and [he]
was worried about being killed or at least being made unconscious.” 4 RP at 459. He denied
threatening Salaverry. Hill testified that he threw the water jug because he was afraid, and he
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kicked and damage the display case because he was “under the emotional drama . . . of the
moment.” 4 RP at 424.
Franada testified to the cost of the damages to the merchandise and display case. The court
admitted exhibits from Franada listing the wholesale and retail value of the items damaged, as well
as invoices and quotes of the replacement glass, doors, and lights of the display cases.
At closing, Hill pointed out five separate times that the surveillance footage did not have
audio. He stated that it was “surprising” that there is no audio, despite having a state-of-the-art
surveillance video system. 5 RP at 503. Hill also argued that the jury only had Salaverry’s word
as to the nature of their argument and as to whether Hill threatened to kill Salaverry. In regard to
the testimony by Franada concerning the cost of the damages to the display cases and merchandise,
Hill argued:
And he’s not the owner, he’s the general manager. And he used to work at a gym as a personal trainer, apparently. But his recordkeeping system is not a model of clarity. You saw pictures of a bunch of broken stuff that was most likely thrown away. It wasn’t brought in here, wasn’t matched up to the inventory list. We couldn’t go through it, this is what was broken, this is not broken, this is what was broken, so you do have to take Mr. Franada at his word. And he’s probably doing the best he can. But, again, we got a picture of broken stuff. If memory serves, we do not have pictures of the lights in the display case as being broken. They weren’t brought in here. So that’s why there’s evidence to support a conviction of malicious mischief in the third degree. The dollar amount, it’s below $750.
5 RP at 512-13.
In rebuttal, the State responded to Hill’s assertions about Franada’s credibility:
I would submit to you there’s no evidence, other evidence, as to the value of the property or that these bongs were sold anywhere else. Certainly, they’ve all been damaged. The receipt shows with some—specifically shows the numbers, and Mr. Franada went through them in establishing the loss and the amounts. And there’s no evidence to contradict that except for defense saying you should not take him as credible, and I submit that is not sufficient.
5 RP at 515.
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The State continued, addressing the lack of audio from the surveillance videos,
stating: “And I would submit to you that no audio in the video, there’s lots of explanations.
I mean, nothing was brought out as testimony. Who knows what the regulations are.” 5
RP at 516. The court overruled Hill’s subsequent objection.
II. SENTENCING
At sentencing, Hill requested an exceptional sentence below the standard range. He argued
pursuant to RCW 9.94A 535(1)(a) that the “evidence presented at trial shows that to a significant
degree, Mr. Salaverry was a willing participant or aggressor.” Clerk’s Papers (CP) at 242. At the
sentencing hearing, Mr. Hill renewed his request for an exceptional sentence, arguing that “the
physical contact was initiated by Mr. Salaverry.” 7 RP at 561.
The court explained to Hill that it found the video very concerning and noted that Hill had
been in and out of custody constantly over the last seven years and now had over nine felony
points. The court asked Hill to comment on how this criminal behavior was going to stop. Hill
was unable to provide insight into how he would restrain his criminal behavior. After hearing
argument from Hill and his counsel, the court chose to follow the State’s recommendation of 87
months. The court did not acknowledge Hill’s request for an exceptional sentence on the record.
Hill did not object or request that the court expand on its rationale.
The court entered a standard range sentence of a total of 87 months incarceration and 18
months of community custody. At a restitution hearing, the court ordered Hill to pay $1,803.23.
The court calculated this amount based on: “$500 for the glass for the display case; $460 for the
broken paraphernalia; $603.23 for the lights and the display case; and $240 for the doors that were
destroyed.” 8 RP at 578. Hill appeals.
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III. ALTERNATIVE MEANS
“A person is guilty of burglary in the first degree if, with intent to commit a crime against
a person or property therein, he or she enters or remains unlawfully in a building and if, in entering
or while in the building or in immediate flight therefrom, the actor or another participant in the
crime . . . assaults any person.” RCW 9A.52.020(1)(b). Hill argues that the State failed to prove
both alternative means of committing burglary because no evidence supported the allegation that
he entered the store unlawfully.
Some crimes “may be committed in different ways (i.e., via alternative means).” State v.
Woodlyn, 188 Wn.2d 157, 163, 392 P.3d 1062 (2017). In these cases, a guilty verdict will be
upheld “only if sufficient evidence supports each alternative means.” State v. Kintz, 169 Wn.2d
537, 552, 238 P.3d 470 (2010). Evidence is sufficient if, viewed in the light most favorable to the
state, “any rational trier of fact could have found guilt beyond a reasonable doubt.” Id. at 551.
Recently in State v. Smith, we held that residential burglary is not an alternative means
crime. 17 Wn. App. 2d 146, 484 P.3d 550, review denied, 2021 WL 3929426 (2021).
“A person is guilty of residential burglary if, with intent to commit a crime against a person
or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.”
RCW 9A.52.025(1) (emphasis added). In Smith, we reasoned that the residential burglary statute
“identifies two separate acts: entering and remaining in a dwelling. But the focus of the statute is
the unlawfulness of the defendant’s conduct. The actual conduct the statute prohibits is being
present in a dwelling unlawfully. Entering and remaining are merely ‘nuances inhering in the same
[prohibited] act’ and ‘facets of the same criminal conduct.’” Smith, 17 Wn. App. 2d at 156
(internal quotation marks omitted) (quoting State v. Barboza-Cortes, 194 Wn.2d 639, 646, 451
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P.3d 707 (2019)). Thus, we concluded that the phrase “enters or remains unlawfully” does not
create an alternative means offense. Smith, 17 Wn. App. 2d at 157.
Here, the State charged Hill with burglary in the first degree. “A person is guilty of
burglary in the first degree if, with intent to commit a crime against a person or property therein,
he or she enters or remains unlawfully in a building and if, in entering or while in the building or
in immediate flight therefrom, the actor or another participant in the crime . . . assaults any person.”
RCW 9A.52.020(1)(b).
As in Smith, the statutory language “enters or remains unlawfully in a building” does not
create alternative means of committing burglary in the first degree. Therefore, the State was not
required to present sufficient evidence to show that Hill unlawfully entered and unlawfully
remained in Urban Bud. And because it is undisputed that the State provided sufficient evidence
that Hill remained unlawfully, we reject Hill’s argument.
IV. PROSECUTORIAL MISCONDUCT
Hill argues that the prosecutor committed misconduct by urging the jury to speculate about
evidence outside the record and by misstating the burden of proof. He contends that the prosecutor
argued facts not in the evidence when he speculated about “regulations” being responsible for the
lack of audio in the security. Br. of Appellant at 26. Hill argues that the prosecutor argued that he
was required to disprove the value of the property damaged. Hill asserts that he was prejudiced
by the misconduct.
To prevail on a claim of prosecutorial misconduct, a defendant bears the burden of showing
that the comments were improper and prejudicial. State v. Loughbom, 196 Wn.2d 64, 70, 470 P.3d
499 (2020).
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If the defendant fails to object to the improper statement at trial, the error is waived “unless
the prosecutor’s misconduct was so flagrant and ill intentioned that an instruction could not have
cured the resulting prejudice.” State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012). To
prevail, the defendant must show (1) no curative instruction would have removed any prejudicial
effect on the jury and (2) there is a substantial likelihood that the misconduct affected the jury’s
verdict. Id. at 761. We focus less on whether the State’s misconduct was flagrant and ill-
intentioned and more on whether the resulting prejudice could have been cured. Id. at 762.
We review a prosecutor’s remarks in the context of the entire argument, the issues in the
case, the evidence addressed in the argument, and the instructions to the jury. State v. Pierce, 169
Wn. App. 533, 552, 280 P.3d 1158 (2012). Remarks in direct response to a defense argument are
generally not improper as long as they do “not go beyond what is necessary” to respond to the
argument or argue evidence not in the record. State v. Dykstra, 127 Wn. App. 1, 8, 110 P.3d 758
(2005).
It is generally improper for the prosecutor to argue that the burden of proof rests with the
defendant. State v. Thorgerson, 172 Wn.2d 438, 453, 258 P.3d 43 (2011). However, the mere
mention that defense evidence is lacking does not constitute prosecutorial misconduct or shift the
burden of proof to the defense. State v. Jackson, 150 Wn. App. 877, 885–86, 209 P.3d 553 (2009).
Hill argued during closing that Franada’s testimony was not credible. He argued that
Franada “used to work at a gym as a personal trainer . . . [and] his recordkeeping system is not a
model of clarity.” 5 RP at 512. He also argued that the broken items were not brought into court
and matched up with the inventory list, so the jury “ha[d] to take Mr. Franada at his word.” 5 RP
at 513.
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In response, the prosecutor noted to the jury that there was no other evidence as to the value
of the property as testified to by Franada. He asserted that Franada went through the numbers and
produced receipts, and “there’s no evidence to contradict that except for defense saying you should
not take him as credible, and I submit that is not sufficient.” 5 RP at 515.
This argument was not improper. The prosecutor was responding to Hill’s argument during
closing, and in doing so pointed out that defense evidence was lacking to contradict Franada’s
testimony and the documents he provided.
Furthermore, because no objection was raised, Hill must show that the comment was “so
flagrant and ill intentioned that an instruction could not have cured the resulting prejudice.”
Emery, 174 Wn.2d at 760-61. The prosecutor reiterated during closing that the State carries the
burden of proof generally. Also, when going through the elements of malicious mischief listed in
instruction 16, the prosecutor specifically stated that “again, what we have to prove, the date of
the crime and that the defendant caused physical damage of property . . . exceeding $750.” 5 RP
at 488. We conclude that the statement was not improper, and Hill fails to show that it was
prejudicial and could not be cured with a remedial instruction.
Hill also argued several times during closing about the lack of audio on the security footage,
at one point saying that it was “surprising” that there was no audio, given the “state of the art”
surveillance system. 5 RP at 503. He asserted that due to the lack of audio, in order for the jury
to accept the State’s case, it had to “believe everything that [the State has] built upon testimony of
Mr. Salaverry.” 5 RP at 499.
Hill asserts that the prosecutor offered “regulations” as the reason why there was no audio.
In fact, in responding to the defense’s emphasis on the lack of audio, the prosecutor stated, “who
knows what the regulations are[?]” 5 RP at 516. He did not argue facts outside of the record by
18 54335-4-II
arguing that regulations did or did not require audio. He specifically stated that “nothing was
brought out as testimony.” 5 RP at 516. The argument was not improper.
Hill also fails to explain how this statement prejudiced him. He asserts that he “was entitled
to explain why he was credible, and question the [S]tate’s video evidence, without the prosecutor
implying there was a legal explanation for the lack of audio. This bolstering and speculation
prejudiced Mr. Hill.” Br. of Appellant at 28. Even if the prosecutor did argue that there was a
legal explanation for the lack of audio, Hill fails to explain what effect it had on the verdict. The
video still had no audio, and the jury was left to determine who was more credible. Hill has failed
to show that the prosecutor’s statement was either improper or prejudicial and his prosecutorial
misconduct claim fails. Because we have found no error or prejudicial error, Hill’s cumulative
error argument also fails.
V. FAILURE TO CONSIDER MITIGATING EVIDENCE
Hill argues that the trial court abused its discretion by failing to consider the mitigating
circumstance he raised at his sentencing.
When a trial court is called on to make a discretionary sentencing decision, the court must
meaningfully consider the request in accordance with the applicable law. State v. Grayson, 154
Wn.2d 333, 342, 111 P.3d 1183 (2005). When a defendant requests an exceptional sentence,
appellate review is limited to circumstances when the trial court refused to exercise discretion at
all or relied on an impermissible basis for refusing to impose an exceptional sentence. State v.
McFarland, 189 Wn.2d 47, 56, 399 P.3d 1106 (2017). Impermissible bases for declining a request
for an exceptional sentence include race, gender, or religion, for example. State v. Garcia-
Martinez, 88 Wn. App. 322, 330, 944 P.2d 1104 (1997).
19 54335-4-II
“A trial court errs when ‘it refuses categorically to impose an exceptional sentence below
the standard range under any circumstances’ or when it operates under the ‘mistaken belief that it
did not have the discretion to impose a mitigated exceptional sentence for which [a defendant] may
have been eligible.’” McFarland, 189 Wn.2d at 56 (quoting Garcia-Martinez, 88 Wn. App. at
330). “[A] trial court that has considered the facts and has concluded that there is no basis for an
exceptional sentence has exercised its discretion, and the defendant may not appeal that ruling.”
Garcia–Martinez, 88 Wn. App. at 330.
In his sentencing memorandum and at the sentencing hearing, Hill argued that Salaverry,
was, “[t]o a significant degree . . . a willing participant or aggressor.”” CP at 242 (citing RCW
9.94A.535(1)(a)). The State did not address the exceptional sentence argument. Hill addressed
the court and asked it to consider “the unique circumstances of [his] actions.” 7 RP at 563. In
response, the court discussed how it was concerned about Hill’s conduct after watching the video.
The court then discussed Hill’s high offender score and what Hill could do to turn his situation
around. It issued a standard range sentence but did not address Hill’s request on the record.
Although the court did not explicitly state on the record that it was denying Hill’s request
for an exceptional sentence, it did discuss what it thought after viewing the video. The record does
not indicate that the court categorically refused to exercise its discretion to consider an exceptional
sentence under any circumstance. We conclude that the court impliedly considered an exceptional
sentence and rejected it, rather than categorically refusing to exercise its discretion.
20 54335-4-II
VI. SAG
A. Insufficient Evidence
Hill argues that there was insufficient evidence for either entering or remaining unlawfully,
because no one testified at trial that Salaverry had authority to expel or physically remove a
customer from the store. We disagree.
The to convict instruction for burglary in the first degree read:
To convict the defendant of the crime of burglary in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about the 31st day of August, 2019, the defendant 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 or in immediate flight from the building the defendant assaulted a person; and (4) That any of these acts occurred in the State of Washington.
CP at 166 (Instr. 25).
The test for determining the sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. Thomas, 150 Wn.2d 821, 874,
83 P.3d 970 (2004). A claim of insufficiency admits the truth of the State’s evidence and all
inferences that reasonably can be drawn therefrom. Id. We defer to the trier of fact on issues of
credibility of witnesses and the persuasiveness of the evidence. Id. at 874-75.
Although there was no explicit testimony that Salaverry had the authority to expel Hill,
testimony from the store manager, Muridan, shows that he also told Hill to leave “at least five
times [to] his face.” 3 RP at 203. There was sufficient evidence to prove that Hill remained
unlawfully. As stated above, burglary is not an alternative means crime, and therefore the State
did not have to present sufficient evidence that Hill entered unlawfully.
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Hill also argues that there was insufficient evidence to show “intent to commit a crime
against persons or property.” The intent required for burglary is intent to commit any crime inside
the burglarized premises. State v. Bergeron, 105 Wn.2d 1, 4, 711 P.2d 1000 (1985).
Based on the cases cited in his SAG, Hill appears to argue that the State improperly relied
solely on a permissive inference of criminal intent based on the proof that he unlawfully remained
within Urban Bud. RCW 9A.52.040 provides that intent to commit a crime may be inferred when
a person enters or remains unlawfully. In cases where this permissive inference is relevant, jury
instructions are given to inform the jury that it may, but is not required to, infer intent. See e.g.
State v. Grayson, 48 Wn. App. 667, 670, 739 P.2d 1206 (1987). However, the jury was not given
the permissive inference instruction, and the State did not argue that the jury should infer his intent
solely based on the fact that he remained unlawfully. The cases cited by Hill are inapplicable here.
After being asked to leave several times, Hill chose to move towards the back of the store,
rather than exiting out of the front door. He attempted to kick open the door to the employee
breakroom and proceeded to purposefully destroy property within the store. Viewing the evidence
and circumstances in a light most favorable to the State, and drawing all reasonable inferences
therefrom, any rational trier of fact could have found that Hill had the intent to commit a crime
when he remained unlawfully. Although Hill provided an alternate explanation for his actions, we
defer to the trier of fact on issues of credibility of witnesses and the persuasiveness of the evidence.
B. Ineffective Assistance of Counsel
Hill argues that he received ineffective assistance of counsel because his attorney failed to
interview juror X to determine if they needed to be removed from the jury and for failing to object
to “50+ instances of leading questions” by the prosecutor. SAG at 2.
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The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171
Wn.2d 17, 32, 246 P.3d 1260 (2011).
We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165
Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,
the defendant must show both that defense counsel’s representation was deficient and that the
deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33. If either prong is
not satisfied, the defendant’s claim fails. In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101
P.3d 1 (2004). “Deficient performance is performance falling ‘below an objective standard of
reasonableness based on consideration of all the circumstances.’” State v. Kyllo, 166 Wn.2d 856,
862, 215 P.3d 177 (2009) (quoting State v. McFarland, 127 Wn.2d 322, 334–35, 899 P.2d 1251
(1995)).
Hill cannot show that this his counsel’s failure to question juror X fell below an objective
standard of reasonableness based on all of the circumstances. The jury had already completed
deliberation on three of the four counts and had informed the court that it was deadlocked on the
fourth. His counsel questioned the affected juror and moved for a mistrial. Additionally, given
that juror X’s statement was not a threat, there was no reason to demand further inquiry. His
counsel’s performance was not deficient. In regard to his assertion that he received ineffective
assistance because his counsel failed to object to the prosecutor’s leading questions, he fails to
state what effect, if any, this failure had on the verdict. Because he fails to show prejudice, his
claim of ineffective assistance fails.
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C. Prosecutorial Misconduct
Hill asserts that the prosecutor committed misconduct by asking “50+” leading questions.
SAG at 2.
To show prosecutorial misconduct, the defendant bears the burden to establish that a
prosecutor’s conduct was improper and that it resulted in prejudice that had a substantial likelihood
of affecting the verdict. Emery, 174 Wn.2d at 759–61. Hill fails to explain what effect, if any, the
prosecutor’s conduct had on the verdict. This argument is without merit and we do not consider
it.
We affirm.
Veljacic, J.
We concur:
Sutton, J.
Glasgow, A.C.J.