State Of Washington, V. Ghassan A. Shakir

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON,

No. 84717-1-I

Respondent,

DIVISION ONE

v.

UNPUBLISHED OPINION

GHASSAN A. SHAKIR,

Appellant.

DÍAZ, J. — A jury convicted Ghassan Shakir, then a rideshare driver, of

kidnapping and of committing indecent liberties against two female passengers.

Shakir now claims that the State engaged in misconduct, that evidentiary errors

occurred, and that his convictions violate his double jeopardy rights. Separately,

Shakir asserts additional errors, including ineffective assistance of counsel. We

remand this matter to the trial court with instructions to strike Shakir’s victim penalty

assessment (VPA) and DNA collection fee. Otherwise, we affirm.

I. BACKGROUND

Four women (K.D., A.A., K.P., and C.A.) accused Shakir of sexually

assaulting them in 2019 while he was on duty as a rideshare driver. The State

charged Shakir with the following six crimes:

1. Indecent liberties by forcible compulsion, committed against K.D.;

2. Kidnapping in the first degree with intent to commit the felony of indecent

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liberties and with the aggravating factor of sexual motivation, against

K.D.;

3. Rape in the second degree, committed against A.A.;

4. Indecent liberties by forcible compulsion, committed against K.P.;

5. Kidnapping in the first degree with intent to commit the felony of indecent

liberties and with the aggravating factor of sexual motivation, against

K.P.; and

6. Rape in the third degree, committed against C.A.

A 14 day jury trial began in August 2022. The jury convicted Shakir only of

both kidnapping counts and both indecent liberties counts. For both kidnapping

counts, the jury found the aggravating factor of sexual motivation. The court

imposed an indeterminate sentence of 226 months to life.

Shakir now timely appeals. Shakir himself separately filed two statements

of additional grounds (SAG).

II. ANALYSIS

A. Prosecutorial Misconduct

Shakir claims the State committed prosecutorial misconduct in its rebuttal

closing argument when asserting he would be the “‘unluckiest man in the world’”

for four similar women to “‘falsely accuse’” him. We disagree.

A prosecutor serves “as the representative of the people” and “[d]efendants

are among the people the prosecutor represents.” State v. Monday, 171 Wn.2d

667, 676, 257 P.3d 551 (2011). Thus, the State “owes a duty to defendants to see

that their rights to a constitutionally fair trial are not violated.” Id.; CONST. art. I, §

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22; U.S. CONST. AMEND. VI.

“In a prosecutorial misconduct claim, the defendant bears the burden of

proving that the prosecutor’s conduct was both improper and prejudicial.” State v.

Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). We gauge whether a defendant

has met this burden within “‘the context of the entire record and the circumstances

at trial.’” State v. Koeller, 15 Wn. App. 2d 245, 260, 477 P.3d 61 (2020) (quoting

State v. Thorgerson, 172 Wn.2d 438, 442, 258 P.3d 43 (2011)). “We review

allegations of prosecutorial misconduct under an abuse of discretion standard.”

State v. Azevedo, 31 Wn. App. 2d 70, 78, 547 P.3d 287 (2024). “The trial judge is

generally in the best position to determine whether the prosecutor’s actions were

improper and whether, under the circumstances, they were prejudicial.” State v.

Ish, 170 Wn.2d 189, 195-96, 241 P.3d 389 (2010).

In its rebuttal closing argument, the State stated:

[PROSECUTOR:] [A]fter . . . the defense closing argument . . .

the conclusion that [Shakir’s counsel] would have you draw with the

issues that he has raised is essentially that Mr. Ghassan Shakir is

the unluckiest man in the world, right. He is just there in the Seattle

area trying to help four women –

[SHAKIR’S COUNSEL]: Your Honor, I object. This is

impermissible. This is impermissible. It reverses the burden.

THE COURT: Overruled.

[PROSECUTOR]: He is just driving around the Seattle area

and four remarkably similar-looking women around the same age

with the same stature, with almost the same hairstyle or whether he

tries to help, somehow he ends up in areas that are known to him,

but he gets lost in those near his workplace or places that he has

visited before in Renton, for example. And they all somehow falsely

accuse him of sexual assault –

[SHAKIR’S COUNSEL]: Wow.

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[PROSECUTOR]: -- without knowing each other. That is just

simply not what the evidence in this case (unintelligible).

(Emphasis added).

At oral argument, Shakir’s counsel clarified the scope of his prosecutorial

misconduct claim. His counsel asserted that he was not objecting to the State

noting the victims’ physical similarities and that the “‘unluckiest person in the world’

[comment] standing alone is not prejudicial misconduct.” Wash. Ct. of Appeals

oral argument, State v. Shakir, No. 84717-1-I, (Jan. 9, 2025), at 6 min., 59 sec.

through 7 min. 34 sec. & at 3 min., 49 sec. through 4 min., 11 sec. video recording

by TVW, Washington State’s Public Affairs Network,

https://www.tvw.org/watch/?clientID=9375922947&eventID=2025011215.

Instead, “it’s the ‘falsely accusing’ [comment] combined . . . with ‘unluckiest

person,’” which constituted error because “basically what the prosecutor said is in

order to acquit you have to find that the victims are lying.” Id. at 3 min., 49 sec.

through 4 min., 11 sec. In this way, Shakir argues that the State undermined the

presumption of innocence and lowered or shifted the burden of proof.

It is true that the State may not shift the burden of proof to the defendant or

otherwise undermine their presumption of innocence. State v. Miles, 139 Wn. App.

879, 890, 162 P.3d 1169 (2007). Even so, “[a]s an advocate, the prosecuting

attorney is entitled to make a fair response to the arguments of defense counsel.”

State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997). We hold that it was

not an abuse of discretion for the court to overrule Shakir’s objection because each

of the State’s comments, individually or taken together, were a proper response to

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his closing argument.

Shakir asserted in his closing argument that the victims or complaining

witnesses’ memories were unreliable, based in part on their apparent intoxication.

Shakir’s counsel also asked the jury to recall, when they are “getting into cabs or

Ubers or Lyfts . . . what percentage [of drivers] are Middle Eastern? I think that’s

an issue insofar as the identification issues that confront these four young ladies

and you, frankly, evaluating their identification.” In turn, Shakir repeatedly argued

this matter presented a case of mistaken identity.

In that context, the State’s “unluckiest man” comment essentially is an

appeal to the jury’s common sense, or to the rough laws of probabilities, that it is

unlikely that each woman would have the same type of memory lapse—based on

intoxication and the inability to tell persons of different ethnicity apart—and accuse

by mere coincidence the same person of sexual assault. State v. Welker, 37 Wn.

App. 628, 638 n.2, 683 P.2d 1110 (1984) (“The jury is usually told it may rely upon

common sense and the ‘common experience of mankind.’”). In this way, we hold

the State’s “unluckiest man” comment was a fair response to Shakir’s closing

argument that the women simply had an unfortunate identical failure of memory.

Brown, 132 Wn.2d at 566.

Turning to the State’s “falsely accuse” comment, 1 Shakir strongly suggested

1 At oral argument, counsel rhetorically asked, “What does [‘falsely accused him’]

mean? ‘False.’ They lied. It wasn’t true. Ok, they didn’t say they made a mistake

or they could have made a mistake.” Wash. Ct. of Appeals oral argument, supra

at 6 min., 6 sec. through 6 min., 17 sec. For purposes this argument, we will

assume “falsely accuse” means an intentional falsehood, though that is not its only

meaning. BLACK’S LAW DICTIONARY, 742 (12th ed. 2024) (“[w]hat is false can be so

by intent, by accident, or by mistake”).

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in his closing argument that the victims or complaining witnesses were lying, or

otherwise questioned the truthfulness of the allegations. For example, Shakir

asserted that “intentional falses, unintentional falses, and outright lies, they all look

the same in court.” And he argued “[e]ither [A.A.] intentionally didn’t tell the truth

or maybe she was so intoxicated that it didn’t dawn on her that she just had a

cigarette. Don’t know which.” Further, he described K.D.’s account of events as

having “no basis[] [i]n fact, none. I didn’t bring this up to her because I didn’t want

to embarrass her.” Shakir characterized K.D.’s testimony multiple times as “false,”

and a “fantasy.” In other words, Shakir’s closing argument repeatedly urged the

jury to conclude the victim’s testimony was “false” and perhaps intentionally so.

We hold it was not an abuse of discretion for the court to overrule Shakir’s

objection because the State’s “falsely accuse” comment was a fair response to

Shakir’s closing argument, which directly accused the victims or complaining

witnesses of effectively intentionally fabricating the evidence. Brown, 132 Wn.2d

at 566. Again, the State’s argument essentially asked the jury to use their common

sense to evaluate whether it is likely that all four complainants had the same

“fantasy.”

Moreover, we must still consider this assignment of error in the context of

the entire record and the circumstances at trial. Koeller, 15 Wn. App. 2d at 260.

“In the context of closing arguments, the prosecuting attorney has ‘wide latitude in

making arguments to the jury and prosecutors are allowed to draw reasonable

inferences from the evidence.’” State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d

937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006),

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overruled on other grounds by State v. W.R., 181 Wn.2d 757, 760, 336 P.3d 1134

(2014)). “It is not misconduct for a prosecutor to argue that the evidence does not

support the defense theory.” State v. Graham, 59 Wn. App. 418, 429, 798 P.2d

314 (1990).

Here, the State went on to tie and contrast its comments on the

implausibility of Shakir’s theories to the entirety of the evidence presented at trial.

Specifically, the State argued that “[e]ven if [the jury] want to disregard completely

the in-court identification of each of these witnesses and their photomontages,[2]

the other evidence supports that this person is Ghassan Shakir.” The State then

discussed “all of the video[3] . . . the geo location data” 4 and “[Shakir’s] own

admissions.” The State also acknowledged the lack of conclusive DNA evidence,

but argued that a forensic scientist and detective had testified such evidence is not

the “end-all, be-all” before discussing other evidence such as the “handcuffs that

[were] found in Mr. Shakir’s car.” 5 Thus, viewing the State’s comments in context

of the entire argument, as we must, it was not an abuse of discretion to conclude

that the State’s comments invited the jury to weigh the entirety of the evidence on

one side to the likelihood of intentional falsehoods or mere coincidence on the

other. Koeller, 15 Wn. App. 2d at 260.

2 The State was referring to the fact that all four complainants provided in-court

identifications of Shakir at trial.

3 The State was referring to various surveillance videos which, for example, show

K.D. entering Shakir’s car and the vehicle’s subsequent inculpatory route.

4 The State was referring to testimony and inculpatory evidence on geo-location,

Google Maps, and rideshare app data detailing Shakir’s whereabouts in relation to

the victims.

5 The State was referring to handcuffs found in a bag in Shakir’s vehicle, which

were engraved with the phrases “‘50 shades of gray’” and “‘you are mine.’”

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Finally, Shakir also argues the State’s comments violated a court order,

namely jury instruction 3, which states jurors “‘must decide each count separately’”

and their “‘verdict on one count should not control your verdict on any other count.’”

In support, Shakir cites to Fisher. There, the “court expressly conditioned the

admission of evidence of physical abuse on defense counsel’s making an issue of

[the victim’s] delayed reporting.” 165 Wn.2d at 747. The defense did not make an

issue of delayed reporting, but the State nonetheless invoked the prohibited

evidence in violation of this ruling. Id.

Indeed, the State may not present evidence in violation of a court order,

instructions, or ruling in limine. Gregory, 158 Wn.2d at 864-67 (“the State made

the motion in limine and then blatantly violated the resulting order”). But here, the

court issued only general instructions to consider each count separately, that the

State has the burden of providing each element beyond a reasonable doubt, and

that the “lawyers’ statements are not evidence.” Nothing in the State’s closing

argument undermined those instructions. The State’s comments did not expressly

or implicitly instruct the jury to conflate the complaining witness’ accusations, in

contravention of the instructions or court’s findings. And the State ended its

argument with a reminder that “[t]here is no question at all that [Shakir] do[es] not

have a burden of proof” and the “State has the burden of proof beyond a

reasonable doubt for each element.” Thus, we hold the State’s challenged

comments did not violate a court order as Shakir argues.

In sum, we hold that Shakir has not carried his burden to show the State’s

comments were improper. Emery, 174 Wn.2d at 756. We need not reach the

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prejudice prong. 6

B. Recorded Recollection

Shakir next argues the court abused its discretion by admitting under ER

803(a)(5) a recording of K.D.’s 2019 statements to a detective. We disagree.

Hearsay “is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” ER 801(c). “Hearsay is not admissible except as provided by these

rules, by other court rules, or by statute.” ER 802. Relevant here is the “Recorded

Recollection” hearsay exception. ER 803(a)(5). Under this exception:

Admission is proper when the following factors are met: (1) the

record pertains to a matter about which the witness once had

knowledge; (2) the witness has an insufficient recollection of the

matter to provide truthful and accurate trial testimony; (3) the record

was made or adopted by the witness when the matter was fresh in

the witness’ memory; and (4) the record reflects the witness’ prior

knowledge accurately.

State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831 (1998). Shakir only

disputes the first and third prong, largely conflating the two in arguing that K.D.

“never” had either knowledge or a fresh memory of the events.

“The admission of statements under ER 803(a)(5) is reviewed for an abuse

of discretion.” Id. While this standard “provides great deference to the trial court’s

evidentiary rulings, it does not immunize them.” State v. Broussard, 25 Wn. App.

2d 781, 789, 525 P.3d 615 (2023). “A court abuses its discretion when its decision

6 Shakir makes a single passing reference that the State’s comments also violated

his “due process” rights. We will not reach this issue as “[p]assing treatment of an

issue or lack of reasoned argument is insufficient to merit judicial consideration.”

Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996).

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adopts a view that no reasonable person would take or that is based on untenable

grounds or reasons.” State v. Boyle, 183 Wn. App. 1, 12-13, 335 P.3d 954 (2014).

The State moved the court to admit K.D.’s recorded statements to a

detective in January 2019 under ER 803(a)(5). Shakir’s counsel expressed

concerns about K.D.’s memory, citing the four-prong test above. On the court’s

instruction to the State to lay further foundation, K.D. then testified she

remembered giving the statements at issue to the detective, that she was telling

the truth in that statement, and that her memory was clearer back then. K.D.

further testified on the evolution of her memory since giving this statement to

detectives. In short, she explained that the trauma of this incident and the passing

of three family members negatively affected her memory. With this, the court held

it was “satisfied with the foundation” and allowed the admission of the recording.

Based on the totality of K.D.’s testimony, we hold the court did not abuse its

discretion in finding the State established the recording conveys information K.D.

“once had knowledge” about and “was made” and later adopted by K.D. when the

subject matter was “fresh in [her] memory.” Alvarado, 89 Wn. App. at 548. The

testimony above provided tenable grounds on which the court based its decision.

State v. Haq, 166 Wn. App. 221, 261-62, 268 P.3d 997 (2012).

In response, Shakir argues that there are numerous inconsistencies

between the recorded recollection and other evidence. 7 Even assuming Shakir

7 For example, as Shakir argues in his brief, K.D. “stated that she walked to the

Uber or Lyft alone, but in fact her friend Fernando Garcia walked her to the car and

helped her get in”; K.D. “told the detective that she only got into one car, but

surveillance video shows she got out of the first car while the driver was dropping

off another passenger at the W Hotel, leaned against a wall for several minutes,

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accurately identifies inconsistencies between the statements in the recorded

recollection and other evidence, his argument conflates the credibility of a given

statement with its admissibility. We have held that there is a “distinction between

the accuracy of the recorded recollection itself and the credibility of the witness’s

statement.” In re Det. of Peterson, 197 Wn. App. 722, 728, 389 P.3d 780 (2017).

“[A] record can be considered accurate for the purposes under ER 803(a)(5) even

when a witness’s credibility is clearly questionable.” Id. at 729. Credibility issues

from “inconsistencies in evidence are matters which affect weight and credibility

and are within the exclusive province of the jury.” Herriman v. May, 142 Wn. App.

226, 232, 174 P.3d 156 (2007); In re Det. of R.W., 98 Wn. App. 140, 144, 988 P.2d

1034 (1999) (“the jury is the sole judge of the weight of the testimony”). In contrast,

the preliminary question of “admissibility of evidence shall be determined by the

court.” ER 104(a). Shakir’s remedy was to highlight these purported

inconsistencies within cross-examination or at closing argument. See Peterson,

197 Wn. App. at 728-29.

This court’s decision in State v. White, 152 Wn. App. 173, 215 P.3d 251

(2009), is instructive. There, the witness “could not remember if the statement

accurately reflected what she told the police, because she was ‘too intoxicated.’”

Id. at 185. However, the witness, “even after reading the statement on the stand,

did not disavow the accuracy of the statement.” Id. Further, we held that the

witness “[o]n the 911 tape, identifies [the defendant] as the attacker” and “testified

then got in another car.”; and K.D. “also told the detective that she sat in the front

because the driver told her to, but surveillance video shows she got in the back of

both cars.

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that it is her voice on the tape.” Id. at 186. As such, this court held “the totality of

the circumstances support the trial court’s ruling” and “the trial court did not abuse

its discretion in admitting [the witness’] statement” as an ER 803(a)(5) recorded

recollection. Id. This court so held, despite the fact the witness “did not testify that

the statement accurately reflected her prior knowledge.” Id. at 184.

Here, while she acknowledged her memory was “hazy” due to her

consumption of alcohol, K.D., not only did not disavow the accuracy of the

statement, but affirmatively testified that she recalled giving the statement in the

recording. And, unlike the witness in White, K.D. expressly testified the recording

accurately reflected her knowledge at the time.

From the above, we hold the court did not abuse its discretion in allowing

K.D.’s statements to be admitted as a recorded recollection under ER 803(a)(5).

Shakir did not show that the court’s decision “adopts a view that no reasonable

person would take.” Boyle, 183 Wn. App. at 12-13. 8

C. Double Jeopardy

Shakir next argues his convictions for kidnapping in the first degree and

indecent liberties violate double jeopardy. We disagree.

8 Shakir further argues the court erroneously “conflated knowledge with truth-

telling, and repeatedly indicated it thought that the statement could only be

excluded if K.D. lied.” This argument is contrary to the record as the court

demonstrated it was cognizant of the difference between admissibility and

credibility. For example, the court explained Shakir’s concerns on credibility were

“a matter for argument in cross-examination. That’s not a matter for – for

foundation.” The court also accurately cited to authority which “says even if the

declarant later claimed a statement was not true that that would be – it would be

susceptible to admissibility.” (Citing State v. Nava, 177 Wn. App. 272, 294-95, 311

P.3d 83 (2013)).

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“The constitutional guaranty against double jeopardy protects a defendant

. . . against multiple punishments for the same offense.” State v. Noltie, 116 Wn.2d

831, 848, 809 P.2d 190 (1991); see also U.S. CONST. amend. V; CONST. art. I, § 9.

“‘If the legislature authorized cumulative punishments for both crimes, then double

jeopardy is not offended.’” State v. Arndt, 194 Wn.2d 784, 815-16, 453 P.3d 696

(2019) (quoting State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005)).

To “determine legislative intent regarding whether cumulative punishment

is authorized,”

[w]e follow four analytical steps . . . : (1) consideration of any

express or implicit legislative intent, (2) application of the

Blockburger, or ‘same evidence,’ test, (3) application of the

‘merger doctrine,’ and (4) consideration of any independent

purpose or effect that would allow punishment as a separate

offense.

Id. at 816 (citing Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.

Ed. 306 (1932)). Double jeopardy “does not prohibit the imposition of multiple

punishments if legislative intent can be found in one of the four double jeopardy

analytical steps” articulated above. Id. at 818. Claims of double jeopardy are

reviewed de novo. Id. at 815. The party asserting a double jeopardy claim bears

the burden of showing a double jeopardy violation, here Shakir. State v. Moses,

104 Wn. App. 153, 158 n.16, 15 P.3d 1058 (2001).

Shakir only addresses the second analytic step. Under Blockburger’s same

evidence test, we gauge whether “the same act or transaction constitutes a

violation of two distinct statutory provisions” by asking “whether each provision

requires proof of a fact which the other does not.” 284 U.S. at 304. Stated

otherwise, “[i]f each offense requires proof of an element not required in the other,

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where proof of one does not necessarily prove the other, the offenses are not the

same and multiple convictions are permitted.” State v. Louis, 155 Wn.2d 563, 569,

120 P.3d 936 (2005). Thus, we now consider whether indecent liberties and

kidnapping in the first degree are the same in law and in fact. State v. Tili, 139

Wn.2d 107, 125, 985 P.2d 365 (1999).

For double jeopardy claims, “[w]e consider the elements of the crimes as

charged and proved, not merely as the level of an abstract articulation of the

elements.” Freeman, 153 Wn.2d at 777.

Kidnapping in the first degree requires the defendant “intentionally abducts

another person with intent . . . [t]o facilitate commission of any felony,” here

indecent liberties. RCW 9A.40.020(1)(b) (emphasis added). “‘Abduct’ means to

restrain a person by either (a) secreting or holding him or her in a place where he

or she is not likely to be found, or (b) using or threatening to use deadly force.”

RCW 9A.40.010(1) (emphasis added). “‘Restrain’ means to restrict a person’s

movements without consent and without legal authority in a manner which

interferes substantially with his or her liberty.” Id. at (6). In contrast, indecent

liberties requires the defendant “knowingly causes another person to have sexual

contact with him or her or another . . . [b]y forcible compulsion.” RCW

9A.44.100(1)(a) (emphasis added). “‘Sexual contact,’” by definition, requires

physical “touching.” RCW 9A.44.010(13).

Here, the charging documents and jury instructions align with the statutory

definitions below. As the State charged then, indecent liberties required it to show

that Shakir made physical “sexual contact” with the victim(s) while its kidnapping

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charges do not. The kidnapping in the first degree charge could have been

accomplished by only “intimidation” and thus without any physical contact. Further,

as both charged and under the statute, kidnapping in the first degree requires only

“intent” to facilitate another felony and does not require the defendant actually

succeed in committing said felony. RCW 9A.40.020(1)(b). Thus, the kidnapping

in the first degree charge did not incorporate the “sexual contact” element of

indecent liberties. In other words, as charged, kidnapping in the first degree and

indecent liberties each “includes an element not included in the other” and are,

thus, legally distinct. Louis, 155 Wn.2d at 569.

The factual distinction between Shakir’s charges for kidnapping in the first

degree and indecent liberties is also reflected in the facts “proven” at trial.

Freeman, 153 Wn.2d at 777. For example, K.P. testified she tried to leave Shakir’s

vehicle, but the doors were locked. She also testified that Shakir told her “‘[y]ou

want this’” and took her to a “dark abandoned parking lot.” As further example,

K.D. testified Shakir “handcuffed” her to a “bar in the front seat,” and had taken her

to a dark, wooded area that she did not recognize.

Based on this testimony, the jury could have found that the State

established kidnapping in the first degree as Shakir restrained K.P. and K.D. by

secreting or holding them in a place where they were not likely to be found. RCW

9A.40.010(1)(a). However, this testimony alone was not sufficient to establish

indecent liberties, which again, requires the defendant make “sexual contact” with

another person. RCW 9A.44.100(1). Thus, as charged and on the facts proven,

the charges of kidnapping in the first degree and indecent liberties require different

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evidence be proven. See, also, State v. Nysta 168 Wn. App. 30, 49, 275 P.3d

1162 (2012) (distinguishing between the evidence required to convict versus the

evidence available to convict).

In sum, we hold Shakir’s convictions for kidnapping in the first degree and

indecent liberties are legally and factually distinct under Blockburger. 284 U.S. at

304. Thus, we reject Shakir’s double jeopardy claim under Arndt, 194 Wn.2d at

818, based only on this factor.

D. Legal Financial Obligations

Shakir’s judgment and sentence imposed both a VPA and DNA collection

fee. Shakir now requests a remand to strike both legal financial obligations. The

State states it “does not oppose a remand for the limited purpose of striking the

VPA and DNA fee without a hearing.” We accept this concession and remand this

case to the trial court to strike the DNA collection fee 9 and VPA 10 in accordance

with RCW 43.43.7541(2) and RCW 7.68.035(4). 11

9 The legislature amended statutes governing DNA collection fees, eliminating the

fee for all defendants. LAWS OF 2023, ch. 449, § 4. Further, courts are required to

waive any DNA collection fee imposed prior to the 2023 amendments, on the

offender’s motion. Id.; RCW 43.43.7541(2).

10 Formerly, RCW 7.68.035(1)(a) mandated a $500 victim penalty assessment for

all adults found guilty in superior court of a crime. State v. Mathers, 193 Wn. App.

913, 918, 376 P.3d 1163 (2016). In 2023, our legislature amended RCW 7.68.035

to state that “[t]he court shall not impose the penalty assessment under this section

if the court finds that the defendant, at the time of sentencing, is indigent as defined

in RCW 10.01.160(3).” LAWS OF 2023, ch. 449, § 1; RCW 7.68.035(4). Further,

courts are required to waive VPAs imposed prior to the 2023 amendments, on the

offender’s motion. Id.; RCW 7.68.035(5)(b).

11 Shakir also claims the “offender score and sentence length are improper

because counts one and two constituted the same criminal conduct and counts

four and five constituted the same criminal conduct” and asserts his counsel was

ineffective for not raising this claim at sentencing. As the claims have no

accompanying substantive argument, we will not consider these two assignments

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E. Statements of Additional Grounds

Statements of additional grounds ensure an appellant can raise issues in

their criminal appeal that may have been overlooked by their attorney. RAP

10.10(a). Recognizing the practical limitations many incarcerated individuals,

RAP 10.10(c) does not require that the statement contain citation to the record or

authorities. But the appellant must still “inform the court of the nature and

occurrence of alleged errors.” RAP 10.10(c). Further, courts are not obliged to

search the record for support of the appellant’s claims. Id.

In June 2023, Shakir filed a four page handwritten document titled “RAP

10.10 (SAG) Reserve to Supplement” (SAG I). 12 In July 2024, Shakir also filed a

typed 20 page statement of additional grounds (SAG II).

1. Prosecutorial Misconduct

of error. State v. Sims, 171 Wn.2d 436, 441, 256 P.3d 285 (2011)

12 Within SAG I, Shakir presents two overarching arguments. We reject both.

First, Shakir argues the superior court acted outside its jurisdiction by failing to

order post-conviction discovery or an evidentiary hearing. Further, he alleges his

appellate counsel failed to find additional evidence. In so arguing, Shakir fails to

provide any specific citation to the record or specifically describe what this

additional evidence is. Regardless, we do not reach claims that rely on evidence

outside the record. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251

(1995) (if an appellant “wishes a reviewing court to consider matters outside the

record, a personal restraint petition is the appropriate vehicle”).

Second, Shakir argues RCW 9A.44.020(1), which states an alleged victim’s

testimony need not be corroborated, violates the equal protection and due process

protections of the United States Constitution as well as his “‘[r]ight to remain

silent.’” We need not consider these high level assertions as Shakir fails to cite

any binding authority. Seven Gables Corp. v. MGM/UA Entertainment Co., 106

Wn.2d 1, 14, 721 P.2d 1 (1986) (“‘[N]aked castings into the constitutional sea are

not sufficient to command judicial consideration and discussion.’” (alterations in

original) (quoting United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970))).

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No. 84717-1-I/18

Shakir in SAG II claims the State committed prosecutorial misconduct three

times in its closing argument.

Again, prosecutorial misconduct requires the appellant establish both

impropriety and prejudice. Emery, 174 Wn.2d at 756. As Shakir acknowledges,

his counsel did not object to the alleged misconduct and thus he must show that

the actions, even if improper, were “flagrant and ill-intentioned.” Emery, 174 Wn.2d

at 760-61. We need not reach that heightened standard of prejudice because

Shakir does not establish any of these statements below were improper.

a. Vouching

Shakir alleges the State “repeatedly vouched for the ‘credibility’ of its

witnesses and that they were telling the ‘truth.’” It “is improper for a prosecutor to

vouch for the credibility of a witness.” State v. Warren, 134 Wn. App. 44, 68, 138

P.3d 1081 (2006). “However, an argument does not constitute vouching unless it

is clear that the prosecutor is not arguing an inference from the evidence, but

instead is expressing a personal opinion as to the witness’s credibility.” Id.

(emphasis added). The State “may freely comment on the credibility of the

witnesses based on the evidence.” Id. (emphasis added).

Similar to the facts of Warren, the State’s comments here specifically

discussed the trial testimony or evidence. Cf. Warren, 134 Wn. App. at 68 (“the

prosecutor argued that [the witness]’s testimony was credible based on specific

details she testified to at trial” and thus “[b]ecause the prosecutor’s argument was

based on the evidence presented at trial, it was not misconduct.”) (emphasis

added). Thus, we hold the State’s challenged comments were not improper

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No. 84717-1-I/19

vouching. 13

b. Evidence Outside the Record

Shakir next argues the State improperly created a “false narrative about

what Mr. Shakir was supposedly thinking during the attack on [K.P.].” Among other

comments, Shakir cites to the State’s claim in closing argument that Shakir “[knew]

what to expect when he [took] K.P.” to an isolated “closed business” and that he

“knew that she did not need to be in this Kirkland location. He knew that she needs

to be going to Everett, and he took her here instead.”

In support, Shakir relies on State v. Pierce, 169 Wn. App. 533, 553, 280

P.3d 1158 (2012). There, this court held that “a prosecutor commits reversible

misconduct by urging the jury to decide a case based on evidence outside the

record” and there the State “attribut[ed] repugnant and amoral thoughts to him—

thoughts that were based on the prosecutor’s speculation and not evidence.” Id.

at 553-54 (emphasis added).

In contrast to Pierce, the State here based its discussion on evidence from

the record. For example, Shakir’s quote omits the beginning of the State’s

argument referring to how “he works at that AT&T right on the other side of the

road. So he knows this area.” Shakir does not dispute he worked at that AT&T or

the fact he admitted as much to detectives. Further, K.P. testified that she had

indicated she wished to be dropped off at a different location, specifically an

address in Everett. The State reasonably drew the inference that Shakir both knew

13 Shakir also asserts his counsel’s performance was deficient by not objecting to

the State’s conduct discussed above. Because we hold the State’s conduct was

not improper, this claim also fails.

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No. 84717-1-I/20

the area where the incident occurred and that K.P. did not intend to be transported

there. Thus, we hold the State’s comments not speculative or based on evidence

outside the record.

c. Remaining Comments

Shakir alleges the State committed misconduct when it argued that he had

“‘got[ten] away’ with his crimes ‘for awhile [sic] until today.’” Shakir implies this

statement improperly carries a personal opinion of guilt. Indeed, “many cases

warn of the need for a prosecutor to avoid expressing a personal opinion of guilt.”

In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 706-07, 286 P.3d 673 (2012).

However, the authorities summarily cited by Shakir are factually

distinguishable. State v. Lindsay, 180 Wn.2d 423, 437, 326 P.3d 125 (2014)

(where the State argued it was the jury’s duty to “‘speak the truth’” rather than to

assess if the State had proven the defendant guilty beyond a reasonable doubt);

Monday, 171 Wn.2d at 677 (where the State argued “good prosecutors believe

‘the word of a criminal defendant is inherently unreliable’”); State v. Hecht, 179 Wn.

App. 497, 506, 319 P.3d 836 (2014) (where the State superimposed the word

“‘GUILTY’” in red capital letters over defendant’s photo); Glasmann, 175 Wn.2d at

708 (same).

Finally, Shakir avers that the State improperly “asked the jury to hold Mr.

Shakir ‘accountable for the things that he did’” to the four victims. In so arguing,

Shakir cites to no on-point published Washington authority. Instead, Shakir cites

a case from New Jersey, State v. Neal, 361 N.J. Super. 522, 826 A.2d 723, 734

(App. Div. 2003), and a case from Maine, State v. Begin, 2015 ME 86, 120 A.3d

20

No. 84717-1-I/21

97, 103. Id. at 6.

This court recently rejected a similar invocation of Neal in State v. Bianchi,

simply holding Neal was “not controlling in Washington.” No. 83338-3-I, slip op. at

23 fn.8 (Wash. Ct. App. Apr. 4, 2022) (unpublished),

https://www.courts.wa.gov/opinions/pdf/833383.pdf. 14 Likewise, we are

unpersuaded by Shakir’s reliance on out-of-state authorities.

We hold Shakir failed to establish the impropriety of the State’s above

conduct and thus we need not consider prejudice. Emery, 174 Wn.2d at 760.

2. Ineffective Assistance of Counsel

Shakir next alleges he received ineffective assistance of counsel because

his attorney failed to present a CrR 7.4 motion, which permits a judgment to be

arrested for inter alia “insufficiency of the proof of a material element of the crime.”

Shakir lists numerous purported inconsistencies within trial evidence and the lack

of DNA evidence. From this, he argues there was a “reasonable doubt of the

successful ‘sexual contact’ element of indecent liberties.”

We examine this claim under the test from Strickland v. Washington, 466

U.S. 668, 669, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Sardinia, 42 Wn.

App. 533, 540, 713 P.2d 122 (1986).

“In order to prove ineffective assistance of counsel, a defendant must show

that the attorney’s performance was deficient and that prejudice resulted.” State

v. Levy, 156 Wn.2d 709, 729, 132 P.3d 1076 (2006). To establish deficient

14We cite these unpublished authorities as it is “necessary for a reasoned

decision” as it directly addresses an out-of-state case invoked by the appellant.

GR 14.1(c).

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performance, “the defendant must show that counsel’s representation fell below

an objective standard of reasonableness.” Strickland, 466 U.S. at 688. Our

analysis “must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id. at 689.

In arguing deficient performance, Shakir cites to State v. Lopez, 107 Wn.

App. 270, 276-77, 27 P.3d 237 (2001), where the defendant was charged with

unlawful firearm possession. There, “the State presented no evidence showing

Mr. Lopez had been convicted of a serious offense prior to the alleged assault”

and the “sole evidence of a previous conviction was Mr. Lopez’s fleeting admission

during his direct testimony in the defense phase of the trial.” Lopez, 107 Wn. App.

at 276 (emphasis added). Thus, this court held that, “[b]ecause the State had

neglected to prove an essential element of unlawful firearm possession, the trial

court would have necessarily granted the [CrR 7.4] motion” and, thus, there was

“no sound strategic or tactical reason” for “counsel’s failure to move for dismissal.”

Id. at 277.

Shakir’s matter is distinguishable from Lopez. As evidenced by Shakir’s

own lengthy discussion of trial testimony, the jury heard more than a mere “fleeting”

amount of evidence as to “sexual contact” element of indecent liberties. Lopez

107 Wn. App. at 276; RCW 9A.44.100(1). Further, Shakir’s own discussion of

DNA evidence fails to cite any Washington authority indicating a lack of DNA

evidence creates reasonable doubt for indecent liberties, let alone negate any

other evidence on the issue.

As Shakir failed to establish deficient performance for the above two claims,

22

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his claim fails and we need not consider prejudice. Levy, 156 Wn.2d at 729. 15

III. CONCLUSION

We remand with instructions to strike Shakir’s VPA and DNA collection fee.

Otherwise, we affirm.

WE CONCUR:

15 SAG II also seeks reversal under the cumulative error doctrine. As we hold there

is no error, this claim fails as well.

23