UNPUBLISHED OPINION
LAU, J.
A jury convicted James Densmore of second degree burglary and first degree theft. He claims prosecutorial misconduct in closing argument deprived him of a fair trial and his trial counsel's failure to object constitutes deficient performance. He also argues the trial court erred when it imposed an exceptional sentence based on RCW 9.94A.535(2)(b)'s "prior unscored misdemeanor" factor, without Blakely1 jury fact finding. Finding no error, we affirm the judgment and sentence.
FACTS
Witnesses testified to the following events. Burglars cut into a safe at Jay's Market and stole $4,345.44. The store had a door alarm, surveillance cameras, and two motion detectors. Surveillance camera footage showed three masked men enter the store through a break in the wall around 4:50 a.m. and leave about 10 minutes later. They avoided the motion detectors and dropped down to avoid detection.
The State's main witness, Andrea Huntley, identified James Densmore at trial. She admitted stealing to support a drug addiction. She previously lived with Densmore's best friend, Byron Bowman. She testified that around 5 a.m., Densmore called her to pick him up. She found Densmore and Bowman hiding behind bushes near Jay's Market. She drove them to her apartment, where they dumped out a duffle bag of money and divided it. Huntley's boyfriend, Kale Cooper, saw the money. Bowman gave Huntley $150. Bowman and Densmore left the stolen store surveillance camera at Huntley's apartment. Huntley told police officers what happened after they arrested her for vehicle prowling. Police officers obtained call records for Densmore's cell phone. The records established calls made at 5 a.m. and several calls made to Huntley at 6 a.m.
A jury convicted Densmore of second degree burglary and first degree theft.2 Densmore's criminal history shows 17 prior felony convictions3 and 18 misdemeanor convictions. Offender scores of 18 for the burglary and 10 for the theft, yielded standard sentence ranges of 51 to 68 months for the burglary and 43 to 57 months for the theft. The court imposed an exceptional concurrent sentence of 120 months' confinement on each count. The court relied on two aggravating factors: (1) the defendant committed multiple current offenses and his high offender score resulted in some of the offenses going unpunished and (2) the defendant's prior unscored misdemeanor convictions resulted in a presumptive sentence that was clearly too lenient. Densmore appeals.4
DISCUSSION
Prosecutorial Misconduct
Densmore argues prosecutorial misconduct deprived him of a fair trial. He asserts the prosecutor committed misconduct by appealing to passion, prejudice, and criminal propensity when she called Densmore a criminal and said he belonged to a criminal culture. He also asserts that trial counsel's failure to object constitutes deficient performance. The State responds that the prosecutor's reference to Densmore as a criminal was supported by the evidence and in direct response to the defense's cross-examination of Huntley. Densmore did not object or request a curative instruction.
Prosecutorial misconduct requires a showing that the prosecutor's conduct was both improper and prejudicial in the context of the entire record and circumstances at trial. State v. Hughes, 118 Wn.App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)). A defendant who alleges prosecutorial misconduct "must first establish the prosecutor's improper conduct and, second, its prejudicial effect." State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). The court reviews a prosecutor's comments during closing argument in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions. State v. Boehning, 127 Wn.App. 511, 519, 111 P.3d 899 (2005). Where the defense fails to timely object to an allegedly improper remark, the error is deemed waived unless the remark is "so flagrant and ill intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury." State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).
Defense counsel argued in closing,
This is a trial where, as you have heard, the State's sole evidence connecting this man to the Jay's Market burglary is coming from a woman who not only has a lengthy history of crimes involving dishonesty, not only giving a story about what happened at Jay's at a time when she was arrested for breaking into someone's car, not only coming from a woman who engages in criminal activity when she is high on drugs, and admittedly high on drugs when she pointed the finger at Mr. Densmore; but it's also coming from a woman who had the only physical evidence linking anybody to this crime. That was her. This testimony that the government wants you to rely on from Andrea Huntley is coming from a woman that has in her possession the only physical evidence connecting anybody to the Jay's Market burglary. That person would be Andrea Huntley.
Report of Proceedings (May 18, 2010) (RP) at 159. Defense counsel also minimized the relationship between Huntley and Densmore: "[S]he's not friends with this guy; she's just an acquaintance. No reason to protect Mr. Densmore at all." RP at 160.
Defense counsel later blamed Huntley for the crimes:
This is the upshot, in a nutshell. Andrea Huntley's story is consistent with her being part of the burglary. Her story about picking Mr. Densmore up a block from where she lives is consistent with her being part of this burglary because, if she was not, there would be no reason for her to pick these people up. They would just walk over to the house, into the house. This getaway car, five miles away, why would she bring them back to the house and then drive these individuals again another five miles?
She's the one with the stolen property in her possession; she's the one that cannot afford another conviction; she's the one that has really no interest in this guy, in this man. So it's convenient for her to tell the police, Hey, I can tell you who did this. I'm not going to tell you who really did it, because that would involve my friends; but I'm going to tell you, you know, who I believe did it and who I'm convinced did it.
RP at 165-66.
The prosecutor responded,
[Defense counsel] made a big deal about [Huntley's] criminal history; that the sole evidence is coming to you from a woman who has a scarlet "A" on her forehead — oh, wait, not that. She had crimes of dishonesty. She breaks into cars. She takes things. All of these things she does when she's on drugs. The thing is, the person who told you all of that was Andrea Huntley. She didn't come in here saying, "I'm pure as the driven snow," that she's Little Miss — you know — Girl Scout. I don't know what the equivalent in Girl Scouts is to an Eagle Scout.
She doesn't say that. She says her life has been messed up since she was 14.
I don't know about you guys, but I don't expect that I would get a call at 6:00 in the morning from James Densmore when he has just committed a burglary. I don't think I'm the person that he thinks, Hey, who can I call to get me out of a jam that won't call the police? I doubt that.
I think that he goes, Who do I know who is a criminal like myself, who won't rat on me when I call them and say, Come pick me up, or who will just come and pick me up.
It's a culture. They have a code. He is her best friend's dad's friend. He and her best friend's dad, Byron Bowman, need her to come pick them up. They're a block away.
But why would they do this? It doesn't make sense, it doesn't make sense, they would just walk or run. Sure, I think it's a great idea, when you're dressed in concealed clothing, maybe with a mask, gloves on, carrying a backpack, after a burglary just happened, to jog past the local law enforcement when they're sitting in their car.
Come on, ladies and gentlemen. That doesn't even pass the giggle test.
RP at 170-72.
"In closing argument, the prosecuting attorney has a wide latitude in drawing and expressing reasonable inferences from the evidence." State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986). Our Supreme Court held similar references constituted no misconduct when justified by the evidence. State v. McKenzie, 157 Wn.2d 44, 57,134 P.3d 221 (2006) (not misconduct to refer to defendant as "rapist"). There, our Supreme Court reasoned: "As we have previously stated, `[i]f the evidence indicates that the defendant is a murderer or killer, it is not prejudicial to so designate him.'" McKenzie, 157 Wn.2d at 57 (alteration in original) (quoting State v. Buttry, 199 Wn. 228, 250, 90 P.2d 1026 (1939)). See also State v. Hunter, 35 Wn.App. 708, 715, 669 P.2d 489 (1983) (not misconduct to refer to defendant as "pimp"). We conclude that the prosecutor's response to defense counsel's arguments was justified by the record evidence and Densmore's aggressive challenge to the State's main witness, Andrea Huntley.
Densmore argues the prosecutor's comments went beyond merely calling him a criminal, when she said, "It's a culture. They have a code." RP at 171. He argues that the prosecutor meant to invoke his criminal past. But the record shows the argument remained well within the evidence and any reasonable inferences. The prosecutor made no reference to Densmore's criminal history. Huntley testified about the criminal code. And the burglary's sophistication demonstrated the burglars' expertise. For example, they bypassed door alarms and motion detectors, brought tools for the metal safe, wore gloves and masks, and entered and left in about 10 minutes. Any inference of past criminal conduct arose from the evidence, not the prosecutor's remarks.
Defense counsel's aggressive challenge to Huntley's testimony entitles the State to fairly respond. "The prosecutor, as an advocate, is entitled to make a fair response to the arguments of defense counsel." Russell, 125 Wn.2d at 87. Defense counsel argued Huntley's "lengthy history of crimes involving dishonesty" and drug use. RP at 159. Counsel also implicated Huntley's criminal involvement. The prosecutor responded that a person who had just committed a crime would logically seek out another criminal for assistance. The prosecutor properly responded to the attack on Huntley's credibility.
Even if the prosecutor improperly characterized Densmore as a part of the criminal culture, the reference was fleeting. And the absence of an objection strongly suggests it was not so flagrant and ill intentioned that an instruction could not have cured any resulting prejudice. Densmore demonstrates neither improper conduct nor prejudice. Densmore waived the challenged misconduct and the ineffective assistance claim fails.
Exceptional Sentence
Densmore argues a Sixth Amendment Blakely violation because the "prior unscored misdemeanor" aggravating factor imposed here required a factual finding by the jury. He also argues error based on the failure to allege this factor in the information. The State responds that this discretionary aggravating factor requires no fact finding.
Based on our review of the record, we need not reach the Blakely challenge. "A reviewing court should not pass on constitutional issues unless absolutely necessary to the determination of the case." State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981).
The court's oral ruling and written findings and conclusions show it relied on two factors under RCW 9.94A.535(2)(b) and (c), to justify the exceptional sentence here. The statute provides in relevant part,
(2) Aggravating Circumstances—Considered and Imposed by the Court The trial court may impose an aggravated exceptional sentence without a finding of fact by a jury under the following circumstances:
. . . .
(b) The defendant's prior unscored misdemeanor or prior unscored foreign criminal history results in a presumptive sentence that is clearly too lenient in light of the purpose of this chapter, as expressed in RCW 9.94A.010.5
(c) The defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished.
RCW 9.94A.535(2).6 The court found subsections (b) and (c) "individually and together support the imposition of an exceptional sentence in this case . . . ." Conclusion of Law 8.
Where it is clear that a trial court would have imposed the same exceptional sentence absent an improper factor, we will affirm. State v. Jackson, 150 Wn.2d 251, 276, 76 P.3d 217 (2003) (an appellate court may uphold an exceptional sentence where it is clear the trial court would have imposed it anyway, absent an erroneous factor); see also State v. Mutch, 171 Wn.2d 646, 660, 254 P.3d 803 (2011) (erroneous finding of fact did not invalidate exceptional sentence because it was clear the trial court would have imposed the same exceptional sentence had it correctly edited the finding). Densmore assigns no error to subsection (c)'s "multiple current offenses" factor relied on by the trial court. State v. Alvarado, 164 Wn.2d 556, 568-69, 192 P.3d 345 (2008) (a court's multiple current offenses determination complies with Blakely because it rests solely on criminal history and calculation of the offender score without the need for additional jury fact finding).
The court discussed Densmore's misdemeanor conviction history and multiple current offenses in its oral ruling. The court's written findings and conclusions control over any arguably inconsistent oral comments. See State v. Bryant, 78 Wn.App. 805, 812, 901 P.2d 1046 (1995) ("trial court's oral ruling `has no final or binding effect unless formally incorporated into the findings, conclusions, and judgment.'") (quoting State v. Mallory, 69 Wn.2d 532, 533-34, 419 P.2d 324 (1966)). Because the record shows the sentencing court would have imposed an exceptional sentence even absent section (b)'s unscored misdemeanor factor, we affirm the exceptional sentence.7
Statement of Additional Grounds
Densmore argues the court erred by denying his motion for a Franks8 hearing because a police officer omitted information on a search warrant that Huntley had improperly accused him of involvement in a separate burglary referred to as the "Toby Magee's Pub burglary." RP (May 6, 2010) at 12. The denial of a Franks hearing is reviewed for abuse of discretion. State v. Wolken, 103 Wn.2d 823, 829-30, 700 P.2d 319 (1985). A warrant may be invalidated and the fruits of a search may be suppressed if the applying officer intentionally or recklessly omitted material information from the warrant affidavit. State v. Chenoweth, 160 Wn.2d 454, 477, 158 P.3d 595 (2007). A defendant challenging a warrant on this basis is entitled to an evidentiary hearing, known as a Franks hearing, if he or she makes a substantial preliminary showing of the omissions and their materiality. Franks, 438 U.S. at 155-56. An omission is material if it was necessary to the finding of probable cause. State v. Copeland, 130 Wn.2d 244, 277, 922 P.2d 1304 (1996). If the affidavit supports probable cause even when the omitted information is considered, the suppression motion fails and no hearing is required. State v. Garrison, 118 Wn.2d 870, 873, 827 P.2d 1388 (1992).
Our review of the record shows no abuse of discretion by the trial court. Even if we assumed an omission and inserted the omitted information into the affidavit, probable cause existed to search Densmore's residence.
Densmore next argues deficient performance based on his counsel's case management, decisions whether to object to certain evidence, which witnesses to call, and the timing of motion filings. These decisions constitute proper trial strategy and tactics. State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P.3d 1011 (2001) (trial strategy and tactics cannot form the basis of a finding of deficient performance.)
Densmore next argues the court improperly interrupted counsel. Trial judges have wide discretion to manage their courtrooms and conduct trials fairly, expeditiously, and impartially. State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d 933 (1969). Our review of the record shows no abuse of discretion.
Densmore next argues the court erred by denying his proposed accomplice instruction, WPIC 6.05.9 Even assuming Huntley was an accomplice, WPIC 6.05 is not necessary where an accomplice's testimony is substantially corroborated. State v. Harris, 102 Wn.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds by State v. Brown, 113 Wn.2d 520, 782 P.2d 1013 (1989). Here, the phone records and Cooper's testimony amply corroborated Huntley's testimony.
Densmore next asserts prosecutorial misconduct. He argues that the prosecutor inflamed the jury's passions when she "put[] on an air of ineptitude" while using courtroom technology and questioned State witnesses about losing custody of their children because of drug use. Statement of Additional Grounds, at 9. Our review of the record shows these claims are without merit. He also argues the prosecutor argued facts not in evidence by referencing police across the street from Jay's Market. But Huntley and detective Lambier testified police frequently parked in that area. This claim fails.
Densmore next argues the court erred by denying funds for a transcript to support his new trial motion. The record shows no ruling or written order resolving this claimed error. The record shows that the court denied Densmore's new trial motion. Because any error or prejudice from this contention is not evident in the record, we reject this claim.
Densmore argues no evidence implicated him in the crime. But Huntley's in-court identification and testimony discussed above undermines this claim. Credibility determinations cannot be reviewed on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We conclude Densmore's statement of additional grounds lacks merit.
For the reasons discussed above, we affirm Densmore's judgment and sentence.
COX and BECKER, JJ., concurs.
