Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                      DIVISION ONE

STATE OF WASHINGTON,                        )       No. 65938-3-I
                                            )
              Respondent,                   )
                                            )
              v.                            )
                                            ) 
NINA ROSE SCOTT,                            )       UNPUBLISHED OPINION
                                            )
                                            )       FILED: April 23, 2012
              Appellant.                    )
                                            )

       Ellington, J.  --  Nina Scott appeals her conviction for forgery citing prosecutorial 

misconduct and ineffective assistance of counsel.  We affirm.

                                       BACKGROUND

       In May 2009, Scott went to Bank of America in Renton to cash a $3,284 check.  

She handed the check to a teller.  Suspecting the check was forged, the teller gave it to 

the branch manager, Jason Shen, to inspect.  The check contained at least three 

different types of handwriting, two different types of ink, and Scott's name written in the 

payee blank, which had previously been either covered in liquid paper or erased and 

rubbed so much that it was completely white.  

       While Scott waited in a bank cubicle, Shen compared the check to others that 

had been written on the account and concluded the handwriting didn't match.  He then 

called one of the account holders, who confirmed the check was fraudulent.  Shen  

No. 65938-3-I/2

called the police.

       Officer Thaddeus Kerkoff of the responded and arrested Scott.  After she was 

read her rights, Scott indicated that somebody named Rob gave her the check as a 

school loan, although she was not in school.  She did not know Rob's last name, 

address, or phone number, but said he was waiting for her in the bank parking lot.  

Scott didn't know the names of the checking account holders.

       When Detective Onishi interviewed Scott the following day, she told him that 

somebody named Matt gave her the check.

       The State charged Scott with forgery.

       At trial, Scott testified that she didn't look at the check before walking into the 

bank and didn't know the amount on it, suggesting only that she gave it "a little bit of [a]
glance."1

       During closing argument, the prosecutor said:

       The defendant is an educated adult with the financial know how to pay 
       her bills, live on her own.  So look at that check.  I know it's a bad check.  
       Is it reasonable that the defendant never really looked at the check or that 
       the defendant thought this was a good check'[2]

Defense counsel did not object to this statement.  Scott was convicted as charged.

                                        DISCUSSION

                                  Prosecutorial Misconduct

       Scott contends the State committed prosecutorial misconduct by expressing a 

personal opinion about Scott's guilt during closing argument.

       1 Report of Proceedings (RP) (Aug. 12, 2010) at 23.

       2 Id. at 156-57 (emphasis added).

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No. 65938-3-I/3

       To establish prosecutorial misconduct, the defendant must show the 
prosecutor's comments were improper and prejudicial.3 Comments are prejudicial only 

if there is "a substantial likelihood the misconduct affected the jury's verdict."4  

Prejudicial error occurs when it is "clear and unmistakable" that the prosecutor 

improperly expressed personal belief, rather than argued an inference from the 
evidence.5 Failing to object to misconduct at trial and to request a curative instruction 

constitutes waiver on appeal unless the misconduct is so flagrant and ill-intentioned
that the resulting prejudice could not be neutralized by a curative instruction.6

       The prejudicial effect of a prosecutor's improper comment is determined by 

considering the comment in the context of the entire argument, the issues in the case, 
the evidence addressed in closing, and the jury instructions.7 Juries are presumed to 

follow the trial court's instructions.8

       Here, Scott contends the prosecutor's statement, "So look at that check.  I know 
it's a bad check," equates with a personal opinion about Scott's guilt.9 But the comment 

       3 State v. Gregory, 158 Wn.2d 759, 858, 147 P.3d 1201 (2006).

       4 State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997).

       5 State v. McKenzie, 157 Wn.2d 44, 54, 134 P.3d 221 (2006).  The State has 
wide latitude in closing argument to draw and express reasonable inferences from the 
evidence.  State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009).  A prosecutor 
commits misconduct by expressing a personal opinion about either a witness's 
credibility or a defendant's guilt or innocence.  State v. Reed, 102 Wn.2d 140, 145-46, 
684 P.2d 699 (1984) (prosecutor repeatedly called the defendant a liar and said 
defense witnesses were not credible because they drove fancy cars and lived out of 
town).

       6 State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990).

       7 Brown, 132 Wn.2d at 561.

       8 State v. Grisby, 97 Wn.2d 493, 499, 647 P.2d 6 (1982).

       9 Appellant's Br. at 10.

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concerned an issue that was undisputed:  the check had been altered.  Further, 

immediately after this comment, the prosecutor asked, "Is it reasonable that the 

defendant never really looked at the check or that the defendant thought this was a 
good check?"10 This conformed to the defense's theory of the case that, although the 

check was clearly altered, Scott didn't know that when she attempted to cash it, and 
therefore could not have had intent to defraud.11 In both opening statement and closing 

argument, defense counsel conceded the check was "obviously" altered, and argued 

the critical question for the jury was whether Scott looked at the check long enough to 

know it was altered.

       Given the context and the prosecutor's closing argument as a whole, it is not 

"clear and unmistakable" that the prosecutor was expressing a personal belief that 

Scott was guilty of forgery.  And Scott fails to show the prosecutor's comment was so 

"flagrant and ill-intentioned" that it could not have been neutralized by a curative 

instruction. 

                              Ineffective Assistance of Counsel

       Scott next contends that she received ineffective assistance of counsel because 

her lawyer failed to object to the prosecutor's "opinion" statement at closing.

       To prevail on an ineffective assistance of counsel claim, the defendant must 

show (1) her attorney's conduct fell below an objective standard of reasonableness and 
(2) this deficiency resulted in prejudice.12 Prejudice exists where "there is a reasonable 

       10 RP (Aug. 12, 2010) at 157.

       11 The jury was instructed that to convict the defendant of forgery, it must find, 
among other elements, that Scott knew the check was altered, and that she acted with 
the intent to defraud.  

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probability that, but for counsel's errors, the result of the trial would have been 
different."13 There is a strong presumption that counsel provided effective 

representation.14 On review, the relevant inquiry is whether counsel's assistance was 

reasonable considering all the circumstances.

       As noted above, the fact that the check was obviously altered was not contested 

at trial, and the prosecutor's comment, which first pointed out the obviousness of the 

forgery and then posed the question of whether it was reasonable to believe Scott had 

not noticed this, comported with the defense's theory of the case.  It was reasonable for 

defense counsel not to object to the prosecutor's challenged statement.  Scott did not 

receive ineffective assistance of counsel.

       Affirmed.

WE CONCUR:

       12 Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 
674 (1984).

       13 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

       14 Strickland, 466 U.S. at 689.

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