State Of Washington v. Kevin Albert Rivera, 47326-7

On Sept. 20, 2014, Kevin Rivera confronted Alicia Clements while she posted civil papers at his driveway; a returned set of papers resulted in Clements’s driver-side window shattering and injuries to both. Rivera admitted breaking the window but claimed it was accidental.
Rivera was charged with second-degree assault (battery), felony harassment, and third-degree malicious mischief; he was convicted of second-degree assault and third-degree malicious mischief.
At trial the prosecutor questioned a deputy and Clements about whether Rivera’s conduct appeared intentional; defense counsel made no objections.
In closing the State argued the jury should find Clements’s account more credible and that Rivera’s prior intentional acts supported the intent element; defense did not object.
The judgment included a sentencing condition forfeiting “all property.” Rivera appealed, challenging the forfeiture and alleging prosecutorial misconduct and ineffective assistance of counsel.

Issue	Rivera's Argument	State's Argument	Held
Authority to order forfeiture as a sentencing condition	Trial court lacked statutory authority to order forfeiture	State did not identify a statute authorizing forfeiture and argued Rivera failed to identify seized property	Court: No statutory authority shown; forfeiture condition reversed and remanded to be struck
Improper elicitation of opinion testimony (witnesses commenting on Rivera’s guilt/credibility)	Prosecutor elicited opinion testimony from deputy and victim about Rivera’s guilt and intent	Testimony was not prejudicial and any objection would have been curable; waived by lack of timely objection	Court: Waived; even if improper, Rivera did not show prejudice that an instruction could not cure
Burden of proof shifted/lowered in closing	Prosecutor urged jury to ‘‘believe’’ State over Rivera, effectively asking for preponderance standard	Argument was proper credibility argument and State repeatedly told jury it bore burden beyond a reasonable doubt	Court: No improper burden shift; closing was permissible inferences from evidence
Ineffective assistance for failure to object	Counsel’s failure to object to alleged misstatements/opinion testimony was deficient and prejudiced Rivera	Many objections would not likely have been sustained; Rivera failed to show prejudice	Court: No ineffective assistance—objections to intent/burden issues would likely fail; Rivera failed to show prejudice even assuming deficiency for opinion testimony

State v. Roberts, 185 Wn. App. 94 (2014) (court has no inherent authority to order property forfeiture; forfeiture as sentence is purely statutory)
In re Pers. Restraint of Glasmann, 175 Wn.2d 696 (2012) (standard for waiver of prosecutorial misconduct claim absent timely objection)
State v. Demery, 144 Wn.2d 753 (2001) (witnesses may not testify to defendant's guilt or veracity)
State v. Montgomery, 163 Wn.2d 577 (2007) (improper opinion testimony may be curable by instruction; absence of prejudice if curable)
State v. Esters, 84 Wn. App. 180 (1996) (second-degree assault by battery is a general-intent crime requiring intent to do the physical act, not intent to cause specific harm)
State v. Baker, 136 Wn. App. 878 (2007) (assault by battery requires intent to touch or strike, not intent to injure)
State v. Russell, 125 Wn.2d 24 (1994) (closing-argument review considers total argument, evidence, and instructions)
State v. Greiff, 141 Wn.2d 910 (2000) (doctrine of cumulative error)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)