State v. Lowrey

1

STATE OF WASHINGTON, Respondent, v. JEREMY MICHAEL LOWREY, Appellant.

No. 38365-2-III

Court of Appeals of Washington, Division 3

October 4, 2022

UNPUBLISHED OPINION

STAAB J.

Jeremy Lowrey was charged with five counts of first degree possession of depictions of minors engaged in sexually explicit conduct and one count of second degree possession of depictions of minor engaged in sexually explicit conduct. Lowrey testified at trial that he was investigating child pornography for the police. During closing argument, the State made an incomplete comment about societal expectations and mistakenly stated the number of explicit images located by police. Lowrey objected, and the trial court sua sponte gave curative instructions. On appeal, Lowrey raises issues of prosecutorial misconduct and ineffective assistance of counsel. We affirm. Lowrey fails to demonstrate misconduct and the trial court's instructions cured any error. Defense counsel was not ineffective for failing to request additional instructions.

In his statement of additional grounds (SAG), Lowrey contends that his inability to review the electronic discovery with his attorney impacted his ability to provide a valid defense. Because this issue is not developed on the record, we decline to review it.

BACKGROUND

After receiving a tip from the National Center for Missing and Exploited Children indicating that multiple images of child pornography had been identified on a specific local internet protocol (IP) address, Detective Jennifer Margheim obtained a search warrant to identify the person to whom the IP address was registered. After pinpointing Lowrey, she obtained a second warrant to search Lowrey's residence. Detective Matt Martin testified at trial that Lowrey's computer contained over 3,000 videos and 67,186 exploitive images of children. Fifteen of these images were admitted as evidence and shown to the jury. Lowrey testified that he collected the images for eight years to help police "investigate." He did not provide evidence of law enforcement credentials and acknowledged that he never communicated any of the images to the police. Defense counsel argued this theory in closing.

The jury found Lowrey guilty of five counts of first degree possession of depictions of minors engaged in sexually explicit conduct under RCW 9.68A.070(1) and one count of second degree possession of depictions of minor engaged in sexually explicit conduct under RCW 9.68A.070(2)(a) and (b).

On appeal, Lowrey focuses on the State's closing argument. In closing, the State argued:

There's a word that we use a lot in this courtroom and in the statutes and in the laws of the State of Washington and that word is reasonable. Because we have presumption of society that those of us that are a member of our society are reasonable people. We actually expect people to be reasonable. We expect people to do what's right, to do the right things. And we have laws that are enacted to take action when people do things that are not reasonable.

We are here today because it is not reasonable for Jeremy Lowrey to be a one man police investigation crew of child pornography on the internet. You can believe every word he said while he was testifying and still find him guilty, because his actions are not reasonable. We have to be careful not to decide cases based on sympathy or emotion or prejudice. And so, I'd like to discuss the images with you, not to inflame your emotions or prejudice but in the context of what Mr. Lowrey is saying was reasonable. You and I sat in this courtroom and Detective Margheim and Detective Martin looked through, they looked through thousands of images of kids being raped.

Report of Proceedings (RP) at 271-72. Defense counsel objected to mischaracterization of the evidence. The court sustained the objection and instructed the jury to "recall what the actual testimony was." RP at 272.

The State went on to argue:

They looked through thousands of images. 96,000 images of children being raped, abused, molested, exploited. And you and I sat in the courtroom and we looked at 15. Difficult to look at. We expect as a society that when somebody sees a picture of a five year old or less with her buttocks spread and another little girl licking her anus, we expect as a society that-

RP at 272. Defense counsel objected, asserting that the State was suggesting that the defendant should be punished because of societal norms, and the State had to "argue her case." RP at 272. The court sustained the objection and instructed the jury to follow jury instructions and "have in mind the Instructions that have been read and the evidence that has been presented." RP at 272-73.

The State continued:

And moving to my second point, you don't have to believe anything Mr. Lowrey told you because whether you believe him or not, it's not credible. One time? Maybe. You accidentally get something that you're like ooh, this is bad. We're not talking about one time. We're talking about 96,000 images and we're talking about 15 specific images that are on a device that he admits using. They come into his possession because he's clicking these random downloads and then he downloaded them on his computer and then they're there. He's-we're not even talking about you or me or some, you know, internet novice. We're talking about somebody that is incredibly tech savvy, knows exactly how systems and computers and analysis of computers and data management systems. He's a problem solver. That's his job.

Is it reasonable to think that the [crime] problem for him to solve is child exploitation sexual materials on the internet? Absolutely not. We have entire agencies devoted to that and he did nothing. He sent a report-

RP at 274. Defense counsel again objected to this statement as a mischaracterization of the evidence, which the court overruled before instructing the jury to recall the exact evidence. The State proceeded to argue that Lowrey's explanation of his actions for eight years was not reasonable, credible, or believable.

ANALYSIS

A. PROSECUTORIAL MISCONDUCT

The first issue raised by Lowrey is whether the State committed prosecutorial misconduct in closing argument by (1) mischaracterizing the burden of proof as a violation of societal expectations rather than proof of the charged crime beyond a reasonable doubt, and (2) appealing to the passions of the jury by arguing that the jury viewed more images than appeared as exhibits. At trial, Lowrey's attorney made three objections during the State's closing argument. His first and third objections were that the State was mischaracterizing the evidence when it argued: "You and I sat in this courtroom and Detective Margheim and Detective Martin looked through, they looked through thousands of images of kids being raped-" RP at 272, and again when the State argued that "we have entire agencies devoted to that and he did nothing. He sent a report." RP at 274. Lowrey also objected, indicating that the State was asking the jury to punish Lowrey based on societal norms or expectations when the State argued, "We expect as a society that when somebody sees a picture of a five year old or less with her buttocks spread and another little girl licking her anus, we expect as a society that-"^[1] RP at 272.

"A defendant's right to a fair trial is denied when the prosecutor makes improper comments, and there is a substantial likelihood that the comments affected the jury's decision." State v. Thompson, 73 Wn.App. 654, 663, 870 P.2d 1022 (1994). "'In order to establish prosecutorial misconduct, a defendant must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial.'" State v. Slater, 197 Wn.2d 660, 681, 486 P.3d 873 (2021) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008) (plurality opinion)). We review the trial court's ruling on an objection to closing arguments for abuse of discretion. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014).

The first question is whether Lowrey can show that the prosecutor's comments were erroneous. Prosecutors have wide latitude to argue reasonable inferences from the evidence. State v. Thorgerson, 172 Wn.2d 438, 448, 258 P.3d 43 (2011). However, the State bears the burden of proving its case beyond a reasonable doubt, and may not assert arguments that shift the burden of proof to the defendant. State v. Emery, 174 Wn.2d 741, 759-60, 278 P.3d 653 (2012). A prosecutor also commits misconduct by asking jurors to convict based on their emotions rather than the evidence. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P.3d 673 (2012) (plurality opinion). And while it is misconduct for the State to argue facts not in evidence, it is not clear that simply mischaracterizing the evidence rises to the level of misconduct. See State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988) (misconduct to argue facts not in evidence). Lowrey does not cite any cases supporting the latter proposition.

In this case, Lowrey fails to meet his burden of showing that the prosecutor's comments were improper and prejudicial. The prosecutor made an unfinished comment about societal expectations. Within the same sentence, the prosecutor twice used the phrase, "we expect as a society that ...." RP at 272. However, the prosecutor never finished this phrase because Lowrey objected, and the objection was essentially sustained.

The State did misstate the number of images and videos found on Lowrey's computer. Twice during closing, the State mistakenly referred to "96,000" images. The testimony reflects that officers found 67,186 exploitive images of children and over 3,000 videos.^[2] This misstatement...