IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 71426-1-1 v. UNPUBLISHED OPINION WALTER JONAS JIMERSON JR.,
Appellant. FILED: March 2, 2015
Dwyer, J. — Following a jury trial, Walter Jimerson Jr. was convicted of one count of burglary in the second degree. He now challenges his conviction, contending that the prosecutor improperly shifted the burden of proof during closing argument. Finding no error, we affirm.
I
On the morning of September 14, 2012, Jimerson entered a Bartell's drug store, approximately 15 minutes before the store opened for business. Store surveillance video showed Jimerson walking to a Pepsi cooler, then to a lighter
display, and then to a cigarette case where, using a key he had taken from a cash register, Jimerson attempted to unlock the case. The store manager observed Jimerson's movements on the security monitor in his office. The
manager then confronted Jimerson and detained him until police arrived. When the police searched Jimerson, they found two 20 ounce bottles of soda and two No. 71426-1-1/2
cigarette lighters.
Jimerson was charged by information with one count of burglary in the
second degree pursuant to RCW 9A.52.030.1
The case was tried to a jury. Following the close of evidence, the trial
court instructed the jury on two defenses: (1) the premises were open to the
public, and (2) Jimerson reasonably believed the owner would have permitted
him to enter the store. The court also instructed the jury, "The defendant has no
burden of proving that a reasonable doubt exists."
During closing arguments, the prosecutor stated, "You've seen the video,
you've heard the testimony. You've heard the driver's license was taken off of
Mr. Jimerson's person, had his name on it. There's been no other evidence
presented that this was not Mr. Jimerson." Defense counsel interposed a timely
objection, stating, "burden shifting." The court instructed the prosecutor, "Go
ahead."
Jimerson was found guilty as charged. The trial court then imposed an
exceptional sentence below the standard range.
Jimerson appeals.
II
Jimerson asks us to reverse his conviction. He contends that the
prosecutor improperly shifted the burden of proof during closing argument, which
created a substantial likelihood that the jury's verdict was affected. We disagree.
1"A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling." RCW 9A.52.030(1). No. 71426-1-1/3
In order to prevail on a claim of prosecutorial misconduct, it is the
defendant's burden to show both that the prosecutor's conduct was improper and
that it was prejudicial. State v. Thorqerson, 172 Wn.2d 438, 442, 258 P.3d 43
(2011). "Any allegedly improper statements should be viewed within the context
of the prosecutor's entire argument, the issues in the case, the evidence
discussed in the argument, and the jury instructions." State v. Dhaliwal. 150
Wn.2d 559, 578, 79 P.3d 432 (2003). If misconduct occurred, and a timely
objection was interposed, the defendant must then prove that "'there is a
substantial likelihood [that] the instances of misconduct affected the jury's
verdict.'" Thorqerson. 172 Wn.2d at 442-43 (alteration in original) (internal
quotation marks omitted) (quoting State v. Maqers. 164 Wn.2d 174,191, 189
P.3d 126 (2008)).
"A criminal defendant has no burden to present evidence, and it is error for
the State to suggest otherwise." State v. Montqomerv, 163 Wn.2d 577, 597, 183
P.3d 267 (2008); accord State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830
(2003) ("Generally, a prosecutor cannot comment on the lack of defense
evidence because the defendant has no duty to present evidence."). Thus, we
have found argument to be improper where, during closing argument, the State
argued that a criminal defendant's failure to present favorable evidence, despite
having retained "a good defense attorney," indicated that no such evidence
existed. See State v. Cleveland, 58 Wn. App. 634, 647-48, 794 P.2d 546 (1990);
see also State v. Traweek. 43 Wn. App. 99, 106-07, 715 P.2d 1148 (1986)
(finding argument improper where prosecutor suggested that defendant, if able,
-3- No. 71426-1-1/4
was required to call witnesses and prove his innocence), overruled on other
grounds by State v. Blair. 117 Wn.2d 479, 816 P.2d 718 (1991).
On the other hand, in a case similar to this one, we recently explained:
The prosecutor did not argue or imply that the defense had failed to offer other reasonable explanations or comment on [the defendant's] failure to testify. Rather, he simply argued that the evidence did not support any other reasonable explanation. A prosecutor is entitled to argue inferences from the evidence and to point out improbabilities or a lack of evidentiary support for the defense's theory of the case.
State v. Killinqsworth. 166 Wn. App. 283, 291-92, 269 P.3d 1064 (2012) (citing
State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994); State v. Boehninq. 127
Wn. App. 511,519, 111 P.3d 899 (2005)).
The same is true of the prosecutor's challenged argument herein. The
evidence discussed by the prosecutor in his argument preceding the challenged
statement was evidence adduced by the State. The prosecutor noted the
absence of contradicting evidence but did not expressly attribute the absence of
such countervailing evidence to the defense. The prosecutor's challenged
statement was, in fact, an allowable comment on the "lack of evidentiary support
for the defense's theory of the case." Killinqsworth, 166 Wn. App. at 292. The
comment shifted no burden of proof to Jimerson. To the contrary, the statement
simply discussed the totality of the evidence admitted in the case on an element
of the offense charged—the identity of the perpetrator.
However, even were we to find the challenged statement to have been
improper, no appellate relief would be warranted. The prosecutor's statement
went to the element of identity. Yet, Jimerson's defense theory was that he
-4- No. 71426-1-1/5
lacked the requisite criminal intent: "Mr. Jimerson was not there to commit
burglary." Given this, there is not a substantial likelihood that the jury's verdict
would have been affected by the prosecutor's statement. Furthermore, the jury
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, DIVISION ONE Respondent, No. 71426-1-1 v. UNPUBLISHED OPINION WALTER JONAS JIMERSON JR.,
Appellant. FILED: March 2, 2015
Dwyer, J. — Following a jury trial, Walter Jimerson Jr. was convicted of one count of burglary in the second degree. He now challenges his conviction, contending that the prosecutor improperly shifted the burden of proof during closing argument. Finding no error, we affirm.
I
On the morning of September 14, 2012, Jimerson entered a Bartell's drug store, approximately 15 minutes before the store opened for business. Store surveillance video showed Jimerson walking to a Pepsi cooler, then to a lighter
display, and then to a cigarette case where, using a key he had taken from a cash register, Jimerson attempted to unlock the case. The store manager observed Jimerson's movements on the security monitor in his office. The
manager then confronted Jimerson and detained him until police arrived. When the police searched Jimerson, they found two 20 ounce bottles of soda and two No. 71426-1-1/2
cigarette lighters.
Jimerson was charged by information with one count of burglary in the
second degree pursuant to RCW 9A.52.030.1
The case was tried to a jury. Following the close of evidence, the trial
court instructed the jury on two defenses: (1) the premises were open to the
public, and (2) Jimerson reasonably believed the owner would have permitted
him to enter the store. The court also instructed the jury, "The defendant has no
burden of proving that a reasonable doubt exists."
During closing arguments, the prosecutor stated, "You've seen the video,
you've heard the testimony. You've heard the driver's license was taken off of
Mr. Jimerson's person, had his name on it. There's been no other evidence
presented that this was not Mr. Jimerson." Defense counsel interposed a timely
objection, stating, "burden shifting." The court instructed the prosecutor, "Go
ahead."
Jimerson was found guilty as charged. The trial court then imposed an
exceptional sentence below the standard range.
Jimerson appeals.
II
Jimerson asks us to reverse his conviction. He contends that the
prosecutor improperly shifted the burden of proof during closing argument, which
created a substantial likelihood that the jury's verdict was affected. We disagree.
1"A person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling." RCW 9A.52.030(1). No. 71426-1-1/3
In order to prevail on a claim of prosecutorial misconduct, it is the
defendant's burden to show both that the prosecutor's conduct was improper and
that it was prejudicial. State v. Thorqerson, 172 Wn.2d 438, 442, 258 P.3d 43
(2011). "Any allegedly improper statements should be viewed within the context
of the prosecutor's entire argument, the issues in the case, the evidence
discussed in the argument, and the jury instructions." State v. Dhaliwal. 150
Wn.2d 559, 578, 79 P.3d 432 (2003). If misconduct occurred, and a timely
objection was interposed, the defendant must then prove that "'there is a
substantial likelihood [that] the instances of misconduct affected the jury's
verdict.'" Thorqerson. 172 Wn.2d at 442-43 (alteration in original) (internal
quotation marks omitted) (quoting State v. Maqers. 164 Wn.2d 174,191, 189
P.3d 126 (2008)).
"A criminal defendant has no burden to present evidence, and it is error for
the State to suggest otherwise." State v. Montqomerv, 163 Wn.2d 577, 597, 183
P.3d 267 (2008); accord State v. Cheatam, 150 Wn.2d 626, 652, 81 P.3d 830
(2003) ("Generally, a prosecutor cannot comment on the lack of defense
evidence because the defendant has no duty to present evidence."). Thus, we
have found argument to be improper where, during closing argument, the State
argued that a criminal defendant's failure to present favorable evidence, despite
having retained "a good defense attorney," indicated that no such evidence
existed. See State v. Cleveland, 58 Wn. App. 634, 647-48, 794 P.2d 546 (1990);
see also State v. Traweek. 43 Wn. App. 99, 106-07, 715 P.2d 1148 (1986)
(finding argument improper where prosecutor suggested that defendant, if able,
-3- No. 71426-1-1/4
was required to call witnesses and prove his innocence), overruled on other
grounds by State v. Blair. 117 Wn.2d 479, 816 P.2d 718 (1991).
On the other hand, in a case similar to this one, we recently explained:
The prosecutor did not argue or imply that the defense had failed to offer other reasonable explanations or comment on [the defendant's] failure to testify. Rather, he simply argued that the evidence did not support any other reasonable explanation. A prosecutor is entitled to argue inferences from the evidence and to point out improbabilities or a lack of evidentiary support for the defense's theory of the case.
State v. Killinqsworth. 166 Wn. App. 283, 291-92, 269 P.3d 1064 (2012) (citing
State v. Russell, 125 Wn.2d 24, 87, 882 P.2d 747 (1994); State v. Boehninq. 127
Wn. App. 511,519, 111 P.3d 899 (2005)).
The same is true of the prosecutor's challenged argument herein. The
evidence discussed by the prosecutor in his argument preceding the challenged
statement was evidence adduced by the State. The prosecutor noted the
absence of contradicting evidence but did not expressly attribute the absence of
such countervailing evidence to the defense. The prosecutor's challenged
statement was, in fact, an allowable comment on the "lack of evidentiary support
for the defense's theory of the case." Killinqsworth, 166 Wn. App. at 292. The
comment shifted no burden of proof to Jimerson. To the contrary, the statement
simply discussed the totality of the evidence admitted in the case on an element
of the offense charged—the identity of the perpetrator.
However, even were we to find the challenged statement to have been
improper, no appellate relief would be warranted. The prosecutor's statement
went to the element of identity. Yet, Jimerson's defense theory was that he
-4- No. 71426-1-1/5
lacked the requisite criminal intent: "Mr. Jimerson was not there to commit
burglary." Given this, there is not a substantial likelihood that the jury's verdict
would have been affected by the prosecutor's statement. Furthermore, the jury
instructions, in which the trial court made clear that the defendant had no burden
to produce evidence in order to be acquitted, offer additional assurance that the
jury's verdict was not based on a misapprehension of the State's burden of proof.
Ill
Jimerson submits a pro se statement of additional grounds pursuant to
RAP 10.10. None of these grounds for additional review entitle him to appellate
relief.
"[T]he appellate court will not consider a defendant's statement of
additional grounds for review if it does not inform the court of the nature and
occurrence of alleged errors." RAP 10.10(c). Generally, "the appellate court is
not obligated to search the record in support of claims made in a defendant's
statement of additional grounds for review." RAP 10.10(c).
While Jimerson lists several issues that could potentially be reviewable, he
does not inform us of the nature and occurrence of the alleged errors. Instead,
as evidenced by several of his requests, including, "All the other misconduct(s)
you can find," and "Anything and everything you can find in the law books, to help
me with this appeal," Jimerson attempts to enlist our aid. It is not our role "to
search the record to find support for the defendant's claim." State v. Meneses.
149 Wn. App. 707, 715-16, 205 P.3d 916 (2009). Because none of Jimerson's
grounds are sufficiently developed for review, we decline to reach them.
-5- No. 71426-1-1/6
Affirmed.
We concur:
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