State v. Johnson, 158 Wash. App. 677

Johnson appeals his conviction for unlawful possession of cocaine; argues prosecutorial misconduct in closing and ineffective assistance for failure to object; the State seeks conviction upholding the charge; the court reverses and remands for a new trial.
Officer pursued Johnson after he fled on a bicycle, leading to a foot chase where stun gun use occurred and Johnson was subdued and arrested; cocaine found in his sweatshirt pocket during search incident to arrest.
Johnson testified to unwitting possession defense, and the jury was instructed on burden and presumption of innocence; the closing argument mischaracterized reasonable doubt and the presumption.
Prosecutor argued that jurors must disbelieve Johnson’s testimony to acquit and used a “fill in the blank” and puzzle analogy to describe reasonable doubt; defense counsel did not object.
The court held the closing arguments erroneous and flagrant, incurable by instruction, reversed Johnson’s conviction, and remanded for a new trial; it declined to address ineffective assistance due to reversal.
The standard of review requires improper conduct plus prejudice; this case follows Anderson and Venegas to treat misstatement of the law about presumption of innocence as reversible error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutor’s closing misstated reasonable doubt and presumption	Johnson argues misconduct.	State contends no improper conduct.	Misconduct; reversible error.
Defense counsel’s failure to object	Johnson claims ineffective assistance.	State argues harmless or trial-cured.	Waived but treated as flagrant; not cured, reversible.
Whether the misconduct is incurable	Johnson asserts lack of curative instruction.	State asserts curative instruction could suffice.	Flagrant and incurable; reversal.

State v. Balzer, 91 Wn. App. 44 (1998) (unwitting possession defense burden; not improper when aligned with defense evidence)
State v. Anderson, 153 Wn. App. 417 (2009) (fill-in-the-blank reasonable doubt argument improper)
State v. Venegas, 155 Wn. App. 507 (2010) (prosecutor’s misstatement of presumption of innocence incurable)
State v. Fleming, 83 Wn. App. 209 (1996) (flagrant prosecutorial missteps akin to Anders/precedent)
State v. Anderson, 153 Wn.2d 417 (2009) (improper reasonable doubt/presumption argument)
State v. Warren, 165 Wn.2d 17 (2008) (no constitutional harmless error for misstatements about presumption)
State v. Bennett, 161 Wn.2d 303 (2007) (misstatement of the burden and due process prejudice)