State Of Washington, Respondent V. Michael Preston, Jr., Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 50238-1-II
Respondent,
v.
UNPUBLISHED OPINION
MICHAEL RAY PRESTON, JR.,
Appellant.
MAXA, C.J. – Michael Preston, Jr. appeals his convictions for second degree theft and
second degree trafficking in stolen property.1 The convictions arose when Preston kept and then
pawned a diamond ring he found on the floor of a Walmart store. The statutory definition of
“theft” includes appropriating another’s property when the actor knows the property has been
lost. RCW 9A.56.020(1)(c); RCW 9A.56.010(2).2
We hold that (1) the State presented sufficient evidence to prove that Preston knew the
ring was lost property, (2) Preston’s argument that the trial court’s jury instructions did not
adequately define or distinguish between “lost property” and “abandoned property” is not
reviewable because the challenge to these definitional jury instructions were raised for the first
1 Preston also was convicted of bail jumping for failing to appear at a pretrial hearing. Preston
does not appeal that conviction.
2 RCW 9A.56.010 has been amended since the events of this case transpired. However, these
amendments do not impact the statutory language relied on by this court. Accordingly, we do
not include the word “former" before RCW 9A.56.010.
Filed
Washington State
Court of Appeals
Division Two
April 24, 2018

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time on appeal, (3) the prosecutor did not commit misconduct during closing argument in
discussing the law regarding lost property or the reasonable doubt standard, (4) Preston’s claim
of ineffective assistance of counsel fails, and (5) the cumulative error doctrine does not apply.
Accordingly, we affirm Preston’s convictions.
FACTS
On February 18, 2015, Preston was shopping in Walmart in Tumwater when he found a
diamond ring on the floor. Video surveillance footage showed him picking up the ring and
pausing before walking out of the store. The next day he took the ring to a pawn shop and used
the ring to secure a loan for $175. Preston said that the ring belonged to his girlfriend, who lived
in Texas.
The ring, which belonged to Nicole Amacker, was a wedding band with three diamonds
that had a retail value of $3,200. Amacker had taken the ring off in the parking lot while
assisting a man who had locked his keys in the car, but forgot to put the ring back on. She went
inside the store for a short time and then returned home, where she discovered that the ring was
missing. Amacker later viewed the store’s surveillance video, which showed that the ring had
been stuck to her sweater while she was in the store and that she had been in the area where
Preston found the ring. The video showed that Preston picked up the ring approximately 12
minutes after Amacker was in the area.
Amacker posted an advertisement on Craigslist offering a reward for the lost ring.
Through the advertisement, Amacker came into contact with Preston. He said that he had found
the ring and had pawned it. Amacker told him that she needed him to be present to get the ring
back from the pawn shop. She said that she would pay the amount needed to obtain the ring, but

No. 50238-1-II
3
that the payment would come out of the reward. Preston then became uncooperative and would
not assist Amacker in retrieving the ring from the pawn shop.
Amacker contacted the police. Lieutenant Bruce Brenna investigated the loss, which
included meeting with Amacker, talking with Preston, and viewing the surveillance footage. The
State eventually charged Preston with second degree theft and second degree trafficking in stolen
property.
At trial, Officer Brenna testified that while conducting his investigation he received a
phone call from Preston. Brenna stated that Preston explained how he found the ring in the
Walmart. Preston told him that he believed that Amacker no longer owned the ring because she
had lost it and he had found it, and the ring now belonged to him. Brenna testified that Preston
did not seem to have any intention of assisting with the retrieval of the ring, his demeanor was
manipulative, and he was not remorseful. Brenna also suggested that he believed Preston had
violated the law.
Preston testified in his own defense. He confirmed that he found the ring at Walmart.
Preston stated that he did not take it to customer service because there was a long line. He stated
that he took the ring to the pawn shop for safe keeping. Preston testified that he thought the ring
might be missing and that he hoped to find the owner. He stated that he found out about the
Craigslist ad because he was interested in returning the ring to its owner. When asked on cross-
examination if he had found something somebody had lost, Preston stated, “I’m believing that,
yes, at that point initially.” Report of Proceedings (RP) (Mar. 14, 2017) at 30.
The State presented proposed jury instructions on theft based on pattern instructions,
including an instruction that “appropriate lost property” meant obtaining control over property
that an actor knows has been mislaid. Preston did not object to the State’s proposed instructions

No. 50238-1-II
4
or request that the court give more specific instructions regarding lost property and abandoned
property. The court adopted the proposed instructions.
In closing argument, the prosecutor argued that any reasonable person who found the
diamond ring would know that it was lost property and that the ring belonged to another person.
The prosecutor also tried to explain the meaning of the reasonable doubt standard in
colloquial terms. She said that the key inquiry for the jury was “whether or not you have a
reasonable doubt, an abiding belief in the truth of the charge.” RP (Mar. 15, 2017) at 98. The
prosecutor stated that really believing that the defendant committed the crime is an abiding belief
in the truth of the charge. Preston did not object to these statements.
The jury found Preston guilty of second degree theft and second degree trafficking in
stolen property. Preston appeals his convictions.
ANALYSIS
A. SUFFICIENCY OF THE EVIDENCE
Preston argues that the State did not present sufficient evidence to convict him of either
theft or trafficking in stolen property because the State did not prove that he knew the diamond
ring he found was lost. We disagree.
1. Standard of Review
The test for determining sufficiency of the evidence is whether, viewing the evidence in
the light most favorable to the State, any rational trier of fact could have found guilt beyond a
reasonable doubt. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014). In a sufficiency
of the evidence claim, the defendant admits the truth of the evidence and the court views the
evidence and all reasonable inferences drawn from that evidence in the light most favorable to
the State. Id. Credibility determinations are made by the trier of fact and are not subject to

No. 50238-1-II
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review. State v. McClure, 200 Wn. App. 231, 234, 402 P.3d 355 (2017). Circumstantial and
direct evidence are equally reliable. Id.
2. Appropriation of Lost Property
Under RCW 9A.56.040,3 a person is guilty of second degree theft if he or she commits
theft of property that exceeds $750 in value but does not exceed $5,000 in value. The definition
of theft includes “[t]o appropriate lost or misdelivered property or services of another, or the
value thereof, with intent to deprive him or her of such property or services.” RCW
9A.56.020(1)(c). The phrase “appropriate lost or misdelivered property or services” is further
defined as “obtaining or exerting control over the property or services of another which the actor
knows to have been lost or mislaid.” RCW 9A.56.010(2) (emphasis added).
The common law distinguishes between property that has been “lost” and property that
had been “abandoned.” State v. Kealey, 80 Wn. App. 162, 171, 907 P.2d 319 (1995). Property
is lost when “the owner has parted with possession unwittingly and no longer knows its
location.” Id. Property is abandoned when “the owner intentionally relinquishes possession and
rights in the property.” Id. A person who loses property retains ownership, but a person who
abandons property loses any ownership interest. Id. at 171-72. As a result, appropriation of
abandoned property generally does not constitute theft. Cf. State v. Wagner–Bennett, 148 Wn.
App. 538, 543, 200 P.3d 739 (2009) (claim of abandonment relates to the intent element of
theft).
3 The legislature amended RCW 9A.56.040 in 2017. However, those amendments are
immaterial here.

No. 50238-1-II
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Under RCW 9A.82.055(1), a person is guilty of second degree trafficking of stolen
property if he or she recklessly traffics in stolen property. The definition of stolen property
includes property obtained by theft. RCW 9A.82.010(16).
3. Analysis
Preston argues that the State failed to present evidence that he knew the ring he found
was lost rather than abandoned. He claims that the State proved only that he picked up a ring
that he knew nothing about. But the evidence created at least a reasonable inference that Preston
knew that the ring was lost when he appropriated it.
First, the mere fact that Preston picked up a diamond ring from the floor of a Walmart
store gives rise to an inference that he knew the ring was lost rather than abandoned. It is
unlikely that the owner of a diamond ring would choose to abandon it on the floor of a store.
Second, when Preston pawned the ring he concealed the fact that he had found it,
claiming that it belonged to his girlfriend in Texas. A reasonable juror could infer from Preston
lying about ownership of the ring that he was aware that he had appropriated a ring belonging to
someone else and that he was trying to hide his appropriation of it.
Third, Preston’s own testimony provides evidence that he knew the ring was lost. When
asked on cross-examination if he had found something somebody had lost, Preston stated, “I’m
believing that, yes, at that point initially.” RP (Mar. 14, 2017) at 30. He also testified that when
he found the ring he wanted “to try to find the owner” because “if it was real it’s obviously
missing.” RP (Mar. 14, 2017) at 13. And Preston testified that he pawned the ring because “I
was going to be needing [money] trying to find the owner.” RP (Mar. 14, 2017) at 14.
Viewing the evidence in the light most favorable to the State, a reasonable jury could
have found that Preston knew the ring was lost when he took possession of and pawned it.

No. 50238-1-II
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Accordingly, we hold that the State presented sufficient evidence to convict Preston of second
degree theft and second degree trafficking in stolen property.
B. ADEQUACY OF JURY INSTRUCTIONS
Preston argues that the trial court’s jury instructions were inadequate because they did not
include definitions of lost property and abandoned property. We decline to address this
argument because Preston did not raise the issue in the trial court.
1. Legal Principles
A party generally waives the right to appeal an error unless there is an objection in the
trial court. State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015). One exception is for
“manifest error affecting a constitutional right.” RAP 2.5(a)(3); Kalebaugh, 183 Wn.2d at 583.
To determine whether we consider an unpreserved error under RAP 2.5(a)(3), we inquire
whether (1) the error is truly of a constitutional magnitude and (2) the error is manifest.
Kalebaugh, 183 Wn.2d at 583.
A claim that a jury instruction relieves the State of its burden to prove every element of a
crime beyond a reasonable doubt raises an issue of constitutional magnitude. Id. at 584. “[T]he
omission of an element of a charged crime is a manifest error affecting a constitutional right that
can be considered for the first time on appeal.” State v. Richie, 191 Wn. App. 916, 927, 365 P.3d
770 (2015). However, if the instructions properly inform the jury of the essential elements of the
crime, an error in defining terms that describe the elements of a crime is not an error of
constitutional magnitude. State v. Gordon, 172 Wn.2d 671, 677, 260 P.3d 884 (2011).
2. Trial Court’s Jury Instructions
The trial court gave instructions stating:
Theft means to appropriate lost or misdelivered property of another, or the value
thereof, with intent to deprive that person of such property.

No. 50238-1-II
8
. . . .
“Appropriate lost or misdelivered property” means obtaining or exerting control
over the property of another that the actor knows to have been lost or mislaid.
Clerk’s Papers (CP) at 94-95. The court’s to-convict instruction stated that the State had the
burden of proving four elements of theft: that Preston “appropriated lost or misdelivered property
of another,” that the property had a value between $750 and $5,000, that Preston “intended to
deprive the other person of the property,” and that the act occurred in Washington. CP at 101.
Preston did not object to these instructions and did not propose other instructions that
further defined the term “lost property.”
3. Analysis
Preston argues that the failure to give instructions defining lost property and abandoned
property relieved the State of its burden of proving that Preston knew the ring was lost. But the
trial court properly instructed the jury on the essential elements of the crime of second degree
theft, including that the defendant appropriated lost or misdelivered property of another and the
defendant intended to deprive the other person of the property. 11A WASHINGTON PRACTICE:
WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 70.06 (4th ed. 2016). In addition, the
jury was instructed on the statutory definition of “appropriate lost or misdelivered property,”
which included the requirement that a defendant know the property was lost. RCW
9A.56.010(2); see CP at 95.
Further, Preston does not argue that the trial court omitted any essential elements of
second degree theft. He argues only that the absence of definitions of lost property and
abandoned property prevented the jury from properly determining whether the State had proved
these elements.

No. 50238-1-II
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A to-convict instruction that contains the essential elements of the crime is not deficient
simply because it does not contain definitions of terms. State v. Fisher, 165 Wn.2d 727, 754-55,
202 P.3d 937 (2009). The instructions Preston now claims the trial court should have given
would have merely defined further the elements of theft. Therefore, the failure to give those
instructions does not constitute constitutional error. Accordingly, we decline to consider
Preston’s argument that the trial court should have given jury instructions that defined lost
property or abandoned property.
C. PROSECUTORIAL MISCONDUCT
Preston argues that the prosecutor committed misconduct during closing argument by
misstating the law regarding lost property and misstating the reasonable doubt standard. We
disagree.
1. Legal Principles
To prevail on a claim of prosecutorial misconduct, a defendant must show that “in the
context of the record and all of the circumstances of the trial, the prosecutor's conduct was both
improper and prejudicial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d
673 (2012). We review the prosecutor’s conduct and whether prejudice resulted therefrom “by
examining that conduct in the full trial context, including the evidence presented, ‘the context of
the total argument, the issues in the case, the evidence addressed in the argument, and the
instructions given to the jury.’ ” State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551 (2011)
(quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006)).4
4 In a prosecutorial misconduct claim, a defendant who fails to object to improper arguments
may be deemed to have waived the issue on appeal unless the prosecutor’s statements are so
flagrant and ill-intentioned that the resulting prejudice could not be corrected by a jury
instruction. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011). Because we hold
that the prosecutor did not engage in misconduct, we do not address waiver.

No. 50238-1-II
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2. Misstatement of the Law
It is misconduct for a prosecutor to misstate the law. State v. Allen, 182 Wn.2d 364, 373,
341 P.3d 268 (2015). Although Preston’s argument is somewhat unclear, he appears to claim
that the prosecutor misstated the law by suggesting that property was lost if he found the
property and knew that it belonged to another person. Preston seems to argue that the proper
statement of the law would have been to clarify that property that once belonged to another
person could be abandoned instead of lost.
The prosecutor stated,
Appropriate lost or misdelivered property or services -- just property in this case --
means obtaining or exerting control over the property or services of another the
actor knows to have been lost. . . . [W]e know that he knows it’s lost; he’s admitted
that. And quite plainly, any reasonable person also knows that in that same
situation, I would submit to you.
. . . .
I would also submit to you that the defendant appropriated lost or misdelivered
property of another, the last classification of that, also not at issue. We know that
that’s lost property, we know it belongs to another person, and we know the
defendant took it.
RP (March 15, 2017) at 101, 105.
These statements did not misstate the law. The prosecutor was arguing that Preston knew
that the ring was lost, based on his own admission. The prosecutor did point out that the ring
belonged to another person, but did not specifically argue that this fact automatically meant that
the ring was lost. And the prosecutor had no obligation to distinguish between lost property and
abandoned property.
We hold that the prosecutor did not misstate the law regarding lost property and therefore
did not commit prosecutorial misconduct in this respect.

No. 50238-1-II
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3. Reasonable Doubt Standard
A prosecutor who addresses the reasonable doubt standard in closing argument acts
improperly by “trivializ[ing] and ultimately fail[ing] to convey the gravity of the State's burden
and the jury's role in assessing its case against [the defendant].” State v. Anderson, 153 Wn.
App. 417, 431, 220 P.3d 1273 (2009). Preston claims that the prosecutor misstated the
reasonable doubt standard.
The prosecutor stated,
[W]hat does abiding mean? . . . I would submit to you that means at the ends [sic]
of today or the end of your – tomorrow, whenever you finish deliberations, do you
believe that the defendant did what he was charged with. Tomorrow morning or
the next day when you wake up, do you believe the defendant did what he was
charged with. Next month, next year, five years from now, do you believe that the
defendant did what he was charged with. That’s the reasonable doubt.
. . . .
[S]ometimes you’ll hear in a case or on TV somebody comes back and says, “Well,
you know, I really believe that they did it, I just really believe that, but they didn’t
prove it to me.” And when I hear that, what I hear is, oh, you applied the wrong
standard. . . . So if you walk out and say, “Well, I really believe he did it,” that’s an
abiding belief in the truth of the charge. So you can’t say, “Well, I believe he did
it, I really, really believe he did it but they didn’t prove it,” because to me that says
you’re applying the wrong standard. If you don’t believe that they did it, then you
don’t have an abiding belief in the truth of the charge, but if you believe then you
do, and I have met my standard of beyond a reasonable doubt.
RP (Mar. 15, 2017) at 97-99.
These statements did not misstate the reasonable doubt standard. The prosecutor did not
mischaracterize the term “abiding belief.” The prosecutor may have minimized the importance
of reasonable doubt to some extent by stating “if you believe then you do.” But within the
context of the entire argument, the prosecutor properly emphasized the long-term and settled
aspects of the certainty required for a conviction.
We hold that the prosecutor did not misstate the reasonable doubt standard and therefore
did not commit prosecutorial misconduct in this respect.

No. 50238-1-II
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D. INEFFECTIVE ASSISTANCE OF COUNSEL
Preston argues that he received ineffective assistance of counsel because his defense
counsel failed to (1) object to certain evidence, (2) propose alternative jury instructions, and (3)
object to statements in the prosecutor’s closing argument. We disagree.
1. Legal Principles
We review ineffective assistance of counsel claims de novo. State v. Estes, 188 Wn.2d
450, 457, 395 P.3d 1045 (2017). To prevail on an ineffective assistance claim, the defendant
must show both that (1) defense counsel’s representation was deficient and (2) the deficient
representation prejudiced the defendant. Id. at 457-58. Representation is deficient if, after
considering all the circumstances, it falls below an objective standard of reasonableness. Id. at
458. Prejudice exists if there is a reasonable probability that, except for counsel’s errors, the
result of the proceeding would have been different. Id.
We apply a strong presumption that counsel’s performance was reasonable. Id.
Counsel’s conduct is not deficient if it was based on what can be characterized as legitimate trial
strategy or tactics. Id.
2. Failure to Object to Evidence
Preston argues that defense counsel was deficient because he did not object to (1)
Amacker’s testimony that Preston refused to help her recover the ring; (2) Brenna’s testimony
that Preston did not seem to have any intention of assisting with the retrieval of the ring, his
demeanor was manipulative, and he was not remorseful; and (3) Brenna’s testimony implying
that he believed Preston had violated the law.

No. 50238-1-II
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Where a claim of ineffective assistance of counsel is based on defense counsel’s failure to
object, the defendant must show that the objection likely would have been sustained. State v.
Fortun-Cebada, 158 Wn. App. 158, 172, 241 P.3d 800 (2010).
One of the elements of theft is the intent to deprive the owner of that property. RCW
9A.56.020(1)(c). Amacker’s and Brenna’s testimony about Preston’s refusal to cooperate in
recovering the ring and lack of remorse arguably was relevant to his intent. Therefore, Preston
cannot show that the trial court would have sustained any objection.
Brenna’s testimony that Preston’s demeanor was manipulative related to Preston’s
awareness that he had committed a crime. Brenna stated that during questioning Preston tried to
steer him away from certain details. A defendant’s demeanor during questioning may be
admissible. See State v. Barry, 183 Wn.2d 297, 310, 352 P.3d 161 (2015) (stating that nothing
precludes the State from introducing pre-arrest, non-testimonial evidence like the accused’s
demeanor). Therefore, Preston cannot show that the trial court would have sustained any
objection.
Regarding Brenna’s testimony about Preston’s violation of the law, when asked on
redirect examination if Preston had returned the ring “[would] it make him any less, by your
opinion, in violation of the law,” Brenna answered “no.” RP (Mar. 13, 2017) at 124. An
officer’s opinion about whether the defendant is guilty generally is objectionable. State v.
Quaale, 182 Wn.2d 191, 197, 340 P.3d 213 (2014).
However, a party who introduces evidence on a particular subject may open the door to
otherwise inadmissible testimony offered to explain, clarify, or contradict that evidence. State v.
Wafford, 199 Wn. App. 32, 36-37, 397 P.3d 926, review denied 189 Wn.2d 1014 (2017). On
cross-examination Preston asked Brenna whether he would have referred the case to a prosecutor

No. 50238-1-II
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for criminal charges if Preston had returned the ring, and Brenna answered. “Probably not.” RP
(Mar. 13, 2017) at 122. This line of questioning opened the door for the prosecutor’s question on
redirect about whether returning the ring would negate Preston’s violation of the law. Therefore,
Preston cannot show that the trial court would have sustained any objection.
We hold that Preston’s ineffective assistance of counsel claim fails in this respect because
he cannot demonstrate that the trial court would have sustained any of the objections he claims
defense counsel should have made.
3. Failure to Propose Adequate Jury Instructions
Preston argues that defense counsel was deficient because he failed to propose jury
instructions that defined lost property and abandoned property. He suggests that these
instructions would have informed the jury that the ring was not necessarily lost because it was
lying on the floor, and could have been abandoned.
But Preston did not testify that he thought the ring was abandoned; he essentially
admitted during his testimony that he thought the ring was lost and that he wanted to find the
owner. And defense counsel did not argue that the ring had been abandoned. His primary
argument was that Preston did not intend to commit a crime. As a result, there was no strategic
reason for defense counsel to have proposed instructions that made a distinction between lost
property and abandoned property. Therefore, we hold that defense counsel was not deficient in
failing to propose these instructions.
4. Failure to Object to Closing Argument
Preston argues that defense counsel was deficient because he failed to object to what he
claims were improper statements during closing argument. But as discussed above, we hold that

No. 50238-1-II
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the prosecutor’s statements were not improper. Therefore, we hold that defense counsel was not
deficient in not objecting to those statements.
E. CUMULATIVE ERROR
Preston argues that we should reverse his convictions under the cumulative error
doctrine. But as discussed above, Preston has not demonstrated that the trial court committed
any errors. Accordingly, we reject Preston’s cumulative error claim.
F. APPELLATE COSTS
Preston asks that we not impose appellate costs. The State does not contest this request.
Accordingly, we decline to impose appellate costs.
CONCLUSION
We affirm Preston’s convictions.
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.
MAXA, C.J.
We concur:
WORSWICK, J.
MELNICK, J.