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Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                               FILED
                                                                           MAY 17, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

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

STATE OF WASHINGTON,                                      No. 29765-9-III
                                                )
                      Respondent,               )
                                                )
              v.                                )
                                                )
MICHAEL J. RICE,                                )         UNPUBLISHED OPINION
                                                )
                      Appellant.                )

       Brown, J. ? Michael J. Rice appeals his first degree robbery, first degree burglary 

and theft of a motor vehicle convictions.  He contends insufficient evidence for all

convictions, prosecutorial misconduct, and cumulative error.  In his pro se statement of 

additional grounds for review (SAG), Mr. Rice contends numerous errors that he argues

warrant reversal of his convictions.  We reject all contentions, and affirm.        

                                            FACTS

       In the early hours of April 7, 2010, two masked men wearing dark hooded jackets 

kicked in the door of Debra Vargas' apartment.  Ms. Vargas' adult son, Jim Stethem, was  

No. 29765-9-III 
State v. Rice  

asleep on the couch.  When awakened, he saw the men removing items from the 

residence.  One of the men had what appeared to be a gun.  Ms. Vargas called 911 and 
told the dispatcher she had been robbed by men with a gun and metal rod.1 The men took

a laptop computer and Mr. Stethem's DVD player.  Ms. Vargas' green minivan was also 

missing.  The police found a metal rod on the floor outside the kitchen in Ms. Vargas'

apartment.  Police also found a "Chucky" doll under Ms. Vargas' landing.  The doll, 

along with two other Chucky dolls, had been stolen from her niece, Christina Morales, 

who lives in a nearby apartment complex and who collected such dolls.  Police found Ms. 

Vargas' van in Portland, Oregon, along with two Chucky dolls and a computer tower.   

       About a week before the robbery, Mr. Rice asked his friend, Jerami Wilson, for 

help in stealing items from Ms. Vargas. Mr. Wilson was house-sitting for his then girl

friend, Ms. Morales, on April 6, 2010.  Mr. Rice and Nikolas Campbell came to Ms. 

Morales' apartment on the night of April 6.  Cecilia Circo was at the apartment and she 

suspected Mr. Campbell and Mr. Rice were "looking to take stuff."  Report of 

Proceedings (RP) at 178.  Mr. Campbell had a gun; Mr. Rice had a metal pipe.  Mr. 

Wilson fell asleep at Ms. Morales' apartment.  When he woke up, Mr. Rice and Mr. 

Campbell were gone, and Ms. Morales' Chucky dolls were missing.  Ms. Circo claimed 

       1 Before trial, the trial court suppressed portions of the 911 call.  The only 
statements allowed were Ms. Vargas' report that a robbery occurred and that two men 
entered her home with weapons.     

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State v. Rice  

Mr. Campbell put the gun in her face and abducted her in the van, with Mr. Rice driving 

it.  The van had a safety switch, which people who had borrowed the van previously 

would have known about.  Mr. Rice had previously driven the van.  The three went to 

Portland.  On the drive, the men discussed the robbery.  Ms. Circo observed Mr. 

Campbell with a Chucky doll. The doll was found in Ms. Vargas' van when police 

located it in Portland. 

       The State charged Mr. Rice with first degree burglary, first degree robbery, and 

theft of a motor vehicle.  Ms. Vargas passed away before the trial started and, therefore, 

was unable to testify.     

       Without objection, the prosecutor made the following comments:  

                      Two people broke into an apartment rented by Debra
              Vargas . . . . One of them had a pipe; one of them had what 
              looked like a gun. The person with the gun came up to Mrs. 
              Vargas, who was in her bed, told her to, you know, put her 
              head next to the pillow so she couldn't see anybody and held 
              it while the other person went through the apartment.
                      . . . . 
                      What happens?  Well, they make Mrs. Vargas put a 
              pillow over her head so she can't see; can't identify them.

RP at 100.

       After providing more details about the robbery and the evidence, the prosecutor 

assured the jury that a key witness, Stacy Felkel, would testify that the defendants 

showed up at her home in the van and talked about "doing a home-invasion robbery." RP 

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State v. Rice  

at 103. This witness did not show up to testify.

       At trial, Ms. Vargas' and Ms. Morales' landlord, Roy Cochlin, testified he saw 

Mr. Rice and Mr. Campbell in dark hooded jackets going back and forth between Ms. 

Morales' and Ms. Vargas' residences.      

       Mr. Rice testified he went to Ms. Morales' apartment at Ms. Circo's invitation, but 

that he left between 9:30-10:00 p.m. and went to a friend's house where he stayed until 

the following morning.  He denied any part in the charged events.  

       The prosecutor concluded his opening remarks by stating:  

              [Mr. Rice] saw Mr. Wilson . . . , but he denies doing the 
              robbery.  That's where you come in, and that's why we are 
              going to ask you, you know, to hold them accountable for 
              their actions.
                      They won't admit their crimes, their actions. That's 
              why we're asking you to hold them accountable, and we are 
              asking you to hold them accountable for robbery. Find that 
              was done with a deadly weapon.  Hold them accountable. 
              Find them guilty of theft of a motor vehicle and hold them 
              accountable.  Find them guilty of burglary with a deadly 
              weapon. 

RP at 106 (emphasis added).  During closing, the prosecutor stated:  

                      Now, the reason that you're here is not because this is 
              a close case or because there's a real hard factual issue. 
              You're here because the defendants do not want to be held 
              accountable for their own actions. You know, they are never 
              going to admit -- they are never going to come up and say, 
              "Yeah.  We did this. Please, I'll take my punishment for it."  
              That's where you come in. 

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No. 29765-9-III 
State v. Rice  

RP at 324 (emphasis added).

       The jury found Mr. Rice guilty as charged, including a special finding that he was 

armed with a deadly weapon.  He appealed.          

                                         ANALYSIS

                                   A. Evidence Sufficiency

       Mr. Rice contends the evidence does not support any of his convictions because 

insufficient evidence connects him to the crime scene.  

       Evidence is sufficient if, viewed in a light most favorable to the prosecution, it 

permits any rational trier of fact to find the essential elements of the crime beyond a 

reasonable doubt.  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).  "A 

claim of insufficiency admits the truth of the State's evidence and all inferences that 

reasonably can be drawn therefrom."  Id.  Circumstantial and direct evidence are equally 

reliable.  State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).  We defer to the 

fact finder on issues of witness credibility and persuasiveness of the evidence.  State v. 

Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       To convict Mr. Rice of first degree burglary, the jury had to find that he entered or 

remained unlawfully in a building, that the entering or remaining was with intent to 

commit a crime against a person or property therein, that in so entering or while in the 

building or in immediate flight therefrom he was armed with a deadly weapon, and that 

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No. 29765-9-III 
State v. Rice  

these acts occurred in Washington.  RCW 9A.52.020(1)(a).  To convict Mr. Rice of first 

degree robbery, the jury had to find Mr. Rice committed a robbery and, in committing or 

fleeing from the crime, was "armed with a deadly weapon" or "[d]isplays what appears to 

be a firearm or other deadly weapon." RCW 9A.56.200(1)(a)(i), (ii).  And, to convict Mr. 

Rice of theft of a motor vehicle, the jury had to find Mr. Rice stole a motor vehicle.  

RCW 9A.56.065(1).

       The trial evidence shows Mr. Rice asked Mr. Wilson, for help in stealing items 

from Ms. Vargas.  Mr. Rice and Mr. Campbell went to Ms. Morales' apartment on April 

6.  Ms. Circo was at the apartment and suspected the men were "looking to take stuff."  

RP at 178.  Mr. Campbell had a gun; Mr. Rice had a metal pipe.  Mr. Wilson observed 

Ms. Morales' Chucky dolls were missing after Mr. Rice and Mr. Campbell left the 

apartment.  Ms. Circo claimed Mr. Campbell put a gun in her face and abducted her in 

the van, with Mr. Rice driving it.  The van had a safety switch, which people who had 

borrowed the van previously would have known about.  Mr. Rice had previously driven 

the van.  The three went to Portland.  On the drive, the men discussed the robbery.  Ms. 

Circo observed Mr. Campbell with a Chucky doll.  The doll was found in Ms. Vargas'

van when police located it in Portland.  Additionally, Ms. Vargas' and Ms. Morales'

landlord, Mr. Cochlin, testified he had seen Mr. Rice and Mr. Campbell in dark hooded 

jackets going back and forth between Ms. Morales' and Ms. Vargas' residences.  

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No. 29765-9-III 
State v. Rice  

       Viewing this evidence in the light most favorable to the State, a rational trier of 

fact could find the elements of first degree robbery, first degree burglary, and theft of a 

motor vehicle beyond a reasonable doubt.  While Mr. Rice denies his involvement with 

these crimes, we defer to the fact finder on issues of witness credibility and 

persuasiveness of the evidence.  Thomas, 150 Wn.2d at 874-75.

                                B.  Prosecutorial Misconduct

       The issue is whether Mr. Rice was denied a fair trial based on three prosecution 

comments during his trial that we discuss below.      

       To obtain reversal on the basis of prosecutorial misconduct, Mr. Rice must show 

(1) the impropriety of the prosecutor's comments and (2) their prejudicial effect.  State v. 

Russell, 125 Wn.2d 24, 85-86, 882 P.2d 747 (1994).  Because Mr. Rice failed to object to 

the prosecutor's misconduct at trial, we ascertain whether the prosecutor's misconduct 

was so flagrant and ill-intentioned that it caused an "enduring and resulting prejudice"

incurable by a jury instruction.  State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 

(1997).  This standard of review requires Mr. Rice to establish (1) the misconduct 

resulted in prejudice that "had a substantial likelihood of affecting the jury verdict" and 

(2) no curative instruction would have obviated the prejudicial effect on the jury.  State v. 

Thorgerson, 172 Wn.2d 438, 455, 258 P.3d 43 (2011).  We review allegedly improper 

arguments in the context of the total argument, the issues in the case, the evidence 

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No. 29765-9-III 
State v. Rice  

addressed in the argument, and the trial court's instructions.  Russell, 125 Wn.2d at 85-

86.

       First, regarding comments on not admitting guilt and proceeding to trial, the State 

charged Mr. Rice with three crimes and he pleaded not guilty.  For this reason, a jury was

impaneled and the matter proceeded to trial.  The contested comments were reasonable, 

common sense comments that did not undermine Mr. Rice's right to a jury trial or to 

confront witnesses.  Moreover, the comments were not so flagrant or ill-intentioned that 

they caused enduring prejudice. 

       Second, regarding comments on the pillow, the prosecutor stated in his opening 

remarks that the evidence would show that the culprits put a pillow over Ms. Vargas'

head to prevent her from identifying them.  This evidence was apparently from the 911 

call, which the trial court suppressed except for Ms. Vargas' statement that two men were 

in her home with weapons.  The State conceded that the prosecutor should not have made 

this statement. The comment, however, requires reversal solely if it was flagrant and ill-

intentioned and resulted in enduring prejudice.  It did not.  The dispute here was not 

whether Ms. Vargas was robbed, her home burglarized and her car stolen, but rather who 

committed the crimes.  It was already established that the culprits were masked.  

Accordingly, evidence that a pillow blocked her view of the men's faces was not 

prejudicial.       

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No. 29765-9-III 
State v. Rice  

       Third, regarding comments on Ms. Felkel, during an opening statement, a 

prosecutor may state what the State's evidence is expected to show.  State v. Brown, 132 

Wn.2d 529, 563, 940 P.2d 546 (1997). Here, the prosecuting attorney's office had been 

in touch with Ms. Felkel, had arranged for her to be personally served with a subpoena, 

and had even purchased a bus ticket for her transportation to Benton County.  At the time 

of his opening statement, the prosecutor expected her to testify.  She, however, failed to 

show.  The jury was later instructed that counsel's remarks were not evidence and that 

they must decide the case based on the evidence produced in court.  There is no reason to 

believe the jury did not follow those instructions. Indeed, this court presumes juries 

follow their instructions.  State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001).  

       Accordingly, none of the State's statements were of such flagrant nature that any 

potential prejudice could not have been obviated by a further curative instruction had Mr. 

Rice requested one. Based on our analysis this far, we do not reach his claim of 

cumulative error.  Cumulative error may call for reversal, even if each error standing 

alone would be considered harmless.  State v. Weber, 159 Wn.2d 252, 276, 149 P.3d 646 

(2006).  But, the doctrine does not apply where the defendant fails to establish how 

claimed instances of prosecutorial misconduct affected the outcome of the trial or how 

combined claimed instances affected the outcome of the trial.  Id.  

                            C.  Statement of Additional Grounds

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No. 29765-9-III 
State v. Rice  

       Mr. Rice raises several contentions in his SAG.  One of his issues is prosecutorial 

misconduct.  Since this issue was adequately addressed by counsel, it will not be 

reviewed again.  See RAP 10.10(a) (purpose of SAG is to permit appellant, "to identify 

and discuss those matters which the defendant/appellant believes have not been

adequately addressed by the brief filed by the defendant/appellant's counsel.")  The 

remaining issues involve speedy trial, joinder, same criminal conduct, deadly weapon 

enhancement, ineffective assistance of counsel, and offender score calculation. 

       For the first time on appeal, Mr. Rice contends his speedy trial rights under CrR 

3.3(b)(1) were violated.  Under this rule, the State had 60 days to bring Mr. Rice to trial.  

But, violations of CrR 3.3 are not constitutionally based and cannot be raised for the first 

time on appeal.  State v. Smith, 104 Wn.2d 497, 508, 707 P.2d 1306 (1985).  Even 

assuming the issue could be raised, the record shows the delay in bringing Mr. Rice to 

trial was due mainly to defense-requested continuances.  Under CrR 3.3(g)(3) and (h)(1), 

continuances are excluded in computing the time for trial. State v. Jones, 111 Wn.2d 

239, 244, 759 P.2d 1183 (1988).  

       Second, Mr. Rice contends for the first time that the court erred in joining his trial 

with Mr. Campbell's. Under CrR 4.4(a)(1), "A defendant's motion for severance of . . . 

defendants must be made before trial . . . . Severance is waived if the motion is not made 

at the appropriate time."  The trial court was not given a chance to rule on severance.  Mr. 

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No. 29765-9-III 
State v. Rice  

Rice, therefore, has waived his right to raise severance here.

       Third, Mr. Rice contends his first degree robbery and first degree burglary

convictions were the same criminal conduct and should have been considered as such 

when calculating his offender score.  Defense counsel raised this issue during sentencing.  

The trial court found there was a break in the action to prevent a finding of same criminal 

conduct.  

       We review a trial court's determination regarding same criminal conduct under an 

abuse of discretion standard.  State v. Tili, 139 Wn.2d 107, 122-23, 985 P.2d 365 (1999).  

Discretion is abused if it is exercised without tenable grounds or reasons.  State ex rel. 

Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).  

       Under RCW 9.94A.589(1)(a), multiple offenses are counted as a single offense for 

sentencing purposes if they encompass the same criminal conduct.  "Same criminal 

conduct," for purposes of this statute, "means two or more crimes that require the same 

criminal intent, are committed at the same time and place, and involve the same victim."  

RCW 9.94A.589(1)(a).  Mr. Rice argues the burglary and robbery were committed at the 

same place, and involved the same victims. But, a break in violence, permitting the actor 

to complete one action and form a new intent to begin a new action, will prevent a 

finding of same criminal conduct.  State v. Grantham, 84 Wn. App. 854, 859, 932 P.2d 

657 (1997).  Here, Mr. Rice broke into the home to commit a burglary.  Upon finding 

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No. 29765-9-III 
State v. Rice  

people in the home, his intent changed to robbing the individuals.  This evidence provides 

tenable grounds for the court to deny his same criminal conduct argument.  Consequently, 

the sentencing court properly calculated Mr. Rice's offender score.    

       Fourth, Mr. Rice contends the sentencing court erred in imposing a deadly weapon 

enhancement. Under State v. Williams-Walker, 167 Wn.2d 889, 898, 225 P.3d 913 

(2010), when a jury finds by special verdict that a defendant used a deadly weapon in 

committing the crime, the trial court is bound by that determination to impose a deadly 

weapon enhancement; that is the case here.    

       Fifth, Mr. Rice contends he was denied effective assistance of counsel because 

defense counsel failed to locate and interview several possible alibi witnesses.  

       "To prevail on a claim of ineffective assistance of counsel, a defendant must 

establish both ineffective representation and resulting prejudice."  State v. McNeal, 145 

Wn.2d 352, 362, 37 P.3d 280 (2002). Counsel's representation is presumed to have been 

reasonable, and all significant decisions by counsel are presumed to be an exercise of 

reasonable professional judgment.  State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 

1251 (1995). Mr. Rice asserts his counsel was ineffective because he failed to interview

witnesses, but we cannot determine the witnesses who might have been interviewed or 

even whether those witnesses would have been helpful to the defense.  If Mr. Rice 

possesses evidence outside our record, the proper means would be a personal restraint 

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No. 29765-9-III 
State v. Rice  

petition.  McFarland, 127 Wn.2d at 338.

       Accordingly, we conclude Mr. Rice's contentions lack merit.

       Affirmed.     

       A majority of the panel has determined this opinion will not be printed in the 

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No. 29765-9-III 
State v. Rice  

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                                           ___________________________
                                                           Brown, J.

WE CONCUR:

___________________________
Korsmo, C.J.

___________________________
Sweeney, J.

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