The State of Washington, Respondent, v. Odies Delandus Walker, Petitioner, 182 Wash. 2d 463

Yu, J. ¶1 Odies Delandus Walker was convicted as an accomplice to first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy. The primary question in this case is whether those convictions must be reversed in light of the PowerPoint presentation the prosecuting attorney used during closing argument.

That presentation repeatedly expressed the prosecutor’s personal opinion on guilt — over 100 of its approximately 250 slides were headed with the words “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER,” and one slide showed Walker’s booking photograph altered with the words “GUILTY BEYOND A REASONABLE DOUBT,” which were superimposed over his face in bold red letters. The prosecutor also appealed to passion and prejudice by juxtaposing photographs of the victim with photographs of Walker and his family, some altered with the addition of inflammatory captions and superimposed text.

While the prosecutor is entitled to draw the jury’s attention to admitted evidence, those slides, as presented, served no legitimate purpose. Their prejudicial effect could not have been cured by a timely objection, and we cannot conclude with any confidence that Walker’s convictions were the result of a fair trial. Consistent with both long-standing precedent and our recent holding in In re Personal Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673 (2012) (plurality opinion), we must reverse Walker’s convictions and remand for a new trial.

FACTS AND PROCEDURAL HISTORY ¶2 We summarize the underlying facts to provide a context for our decision in this case. The State’s evidence supports the following version of the events. ¶3 During the relevant time period, Walker lived with his girlfriend, Tonie Marie Williams-Irby; several of their children; and Walker’s cousin, Calvin Finley. Williams-Irby worked at a Walmart in Lakewood as a department manager.

Williams-Irby told Walker, Finley, and another friend (Jonathan) that she knew what time an armored truck arrived each day to pick up the store’s daily receipts and knew the average daily amount of those receipts from staff meetings. Several weeks later, Walker discussed the armored truck with Finley and Jonathan, saying it would be “easy money” 7 Verbatim Report of Proceedings (VRP) at 656. ¶4 Jonathan was later excluded from the robbery discussions.

Other potential participants were considered, and ultimately Walker, Finley, and their friend Marshawn Turpin made a plan to rob the armored truck “custodian.” 4 VRP at 170. During this preliminary planning stage, Walker and Finley discussed the possibility that Finley might need to shoot the armored truck custodian. Walker told Finley to “do what you got to do,” 7 VRP at 665, and that Walker would provide a gun.

Williams-Irby was aware of these plans and would regularly answer Walker’s questions about the amount of the store’s daily receipts. ¶5 On the day of the crime, Walker drove Williams-Irby to work and asked her to find out what the day’s receipts would be. Williams-Irby went to the daily staff meeting and reported to Walker that the day’s receipts totaled $207,000. Walker and Finley then drove to the Walmart in a white Buick. Turpin arrived in a gold Nissan Maxima, then entered the parked Buick.

When the armored truck arrived to pick up the money, Finley and Turpin entered the store while Walker remained in the Buick. Finley was armed with a handgun. As the armored truck custodian reached the store entrance to leave, Finley and Turpin approached him and Finley shot him in the head, killing him. Finley and Turpin grabbed the money bag and fled in the Buick. Walker drove them to an alley behind a friend’s house to ditch the car.

Walker later returned to the Walmart to pick up the gold Nissan. ¶6 When Williams-Irby returned home from work, Walker told her that they needed to go to where he had left the Buick so he could wipe away his fingerprints. When they got there, police officers were milling around the car, so they left and drove to another friend’s house (A1 Trevino). Williams-Irby testified that on the way to Trevino’s house, Walker told her that he was in the white Buick in the Walmart parking lot and was on the phone with Finley during the robbery.

When Finley asked for the money, the armored truck driver laughed, so Walker told Finley to “kill the mother fucker.” 8 VRP at 729. ¶7 Finley and Turpin were already at Trevino’s house when Walker and Williams-Irby arrived. After distributing some of the cash, Walker, Finley, and Turpin placed the clothes they were wearing during the robbery and the now-empty money bag into a plastic bag, which Finley discarded in a nearby river. ¶8 Walker and Williams-Irby left Trevino’s house after about 30 minutes and drove to a motel in Fife, where Walker met up with Finley and Trevino.

Walker and Williams-Irby then drove to a Walmart in Federal Way, and Walker bought two safes and a video game system. Walker kept one safe for himself and drove back to Fife to give the other safe to Finley. Walker and Williams-Irby then returned home, where Walker put a gun and his share of the robbery proceeds in his safe and put the safe and the video game system in his bedroom closet. ¶9 Walker then took Williams-Irby and their children out for dinner at Red Lobster. At dinner, Walker told Williams-Irby’s son, “This is how you murder these niggers and get this money.” Id. at 773.

Walker paid the bill for the meal, nearly $200, in cash. Police pulled over and arrested Walker and Williams-Irby as they drove home from the restaurant. Williams-Irby told police she didn’t know anything. When interviewed by police, Walker denied having any involvement with the robbery. ¶10 Williams-Irby was charged and, after entering into a plea agreement with the State, testified against Walker consistent with the above factual

summary. The State charged Walker as an accomplice to aggravated first degree premeditated murder, first degree felony murder, first degree assault, first degree robbery, first degree solicitation to commit robbery, and first degree conspiracy to commit robbery. The State also sought deadly weapon enhancements for the murder, assault, and robbery charges. ¶11 In opening statements, the prosecutor said: When the police question the defendant, he is being — he is adamant. He is cursing. He is yelling. He is swearing. He is saying he didn’t have any idea why the police stopped him. Why did you arrest me?

I didn’t do anything. I had nothing to do with it. My wife, Williams-Irby, she didn’t have anything to do with this. He is lying like crazy to the police. Williams-Irby pled guilty to second-degree murder, and she will tell you what she had to do with it. He told the cops he didn’t have anything to do with it. ... At the close of this case, we are going to ask you to convict the defendant of each one, every one of these righteous charges that have been filed against him. Suppl. VRP (Mar. 7, 2011) at 48, 52.

Walker’s counsel did not object to these statements. ¶12 During closing remarks, the prosecutor utilized a PowerPoint presentation made up of approximately 250 slides. Over 100 of those slides have the heading “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER.” Pl.’s Ex. 243, at 6-7, 9-49, 54, 56-59, 61-66, 68-77. Two slides have the heading “DEFENDANT WALKER GUILTY OF ASSAULT IN THE FIRST DEGREE,” id. at 83, and three have the heading “DEFENDANT WALKER GUILTY OF SOLICITATION TO COMMIT ROBBERY,” id. at 85-86.

The PowerPoint also includes a slide superimposing the words “GUILTY BEYOND A REASONABLE DOUBT” over Walker’s booking photo. Id. at 87. The record contains only grayscale copies of the slides, but the briefing indicates that the lettering was in bright red. See Pet’r’s Suppl. Br. at 2. Pl.’s Ex. 243, at 87. ¶13 There is a series of slides suggesting Walker is guilty because he used the stolen money for video games and lobster. The first asserts, “Defendant Walker is GUILTY as an ACCOMPLICE to the murder because he SPLURGED ON FRIVOLOUS THINGS.” Id. at 63.

The next slides explain that those splurges included “[two] safes, a WII [sic] and several games at the Federal Way Walmart,” as well as “$200.00 for dinner at the Red Lobster.” Id. at 63-64. The next slide is a photo of Walker and his family happily eating that dinner. Id. at 64. Id. at 63-64. ¶14 Several other slides include photographs that were admitted exhibits, but altered with captions, headings, and superimposed text. For example, one slide is a photograph of money seized by police with the heading “MONEY IS MORE IMPORTANT THAN HUMAN LIFE”: Id. at 5.

It was not alleged that Walker, or anyone else, actually said those words. ¶15 Another particularly problematic example of admitted exhibits altered with inflammatory text comes near the end of the presentation. First, a slide depicts an in-life photograph of the victim with a superimposed heading reading “DEFENDANT’S GREED AND CALLOUS DISREGARD FOR HUMAN LIFE” and text detailing the money stolen and its distribution among the participants. Id. at 88.

That slide is juxtaposed with the one immediately following it — the same photograph of Walker and his family eating dinner at the Red Lobster used earlier, but this time with a caption “ THIS IS HOW YOU MURDER AND ROB NIGGERS NEXT TIME IT WILL BE MORE MONEY.’ ” Id. at 89. Next comes Walker’s booking photograph, altered with the caption, “ ‘WE ARE GOING TO BEAT THIS,’ ” contrasted with the final image, an in-life photograph of the victim.

Id. ¶16 During the State’s closing, Walker’s attorney unsuccessfully objected to the State’s discussion of premeditation and a slide analogizing premeditation to stopping at a railroad crossing. 12 VRP at 1376-80. However, Walker’s counsel never objected to the PowerPoint slides referenced here. ¶17 Walker did not testify, and he was subsequently convicted of all charges. He appealed his convictions, claiming prosecutorial misconduct, improper jury instructions, and ineffective assistance of counsel. In a partially published opinion, the Court of Appeals affirmed the convictions. State v. Walker, 178 Wn.

App. 478, 315 P.3d 562 (2013) (published in part). Walker petitioned for review. The State did not file an answer to Walker’s petition, and we granted review. State v. Walker, 180 Wn.2d 1002, 321 P.3d 1206 (2014). ANALYSIS I. Prosecutorial misconduct violated Walker’s right to a fair trial ¶18 Walker argues that the prosecutor committed reversible misconduct primarily in the PowerPoint presentation used during closing argument.

We recently addressed this very same issue in Glasmann, 175 Wn.2d 696, and it is regrettable that some prosecutors continue to defend these practices and the validity of convictions obtained by using them. We reject the State’s arguments that Glasmann is materially distinguishable and should be disavowed in part and hold that, as in Glasmann, the State’s PowerPoint presentation requires reversal of Walker’s convictions. A.

The prosecutor’s duty is to seek justice, not merely convictions ¶19 We have had numerous occasions to point out the dual roles of a prosecutor. “A prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011) (citing State v. Case, 49 Wn.2d 66, 70-71, 298 P.2d 500 (1956) (quoting People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899))). At the same time, a prosecutor “functions as the representative of the people in a quasijudicial capacity in a search for justice.” Id.

A prosecutor does not fulfill either role by securing a conviction based on proceedings that violate a defendant’s right to a fair trial — such convictions in fact undermine the integrity of our entire criminal justice system. We fail to appreciate why the prosecutor felt these slides were necessary to secure a conviction, and remain committed to the words of Fielding, which resonate as strongly today as when they were first made over 100 years ago: “[A] public prosecutor ... is a quasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice.

If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment.” Id. at 676 n.2 (alterations in original) (quoting Fielding, 158 N.Y. at 547), quoted with approval in Case, 49 Wn.2d at 70-71. ¶20 Attorneys may use multimedia resources in closing arguments to summarize and highlight relevant evidence, and good trial advocacy encourages creative use of such tools.

Moreover, closing arguments are an opportunity for counsel to argue reasonable inferences from the evidence. However, advocacy has its limits, and a prosecutor has the duty to “subdue courtroom zeal,” not to add to it, in order to ensure the defendant receives a fair trial. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d 43 (2011); see State v. Reed, 102 Wn.2d 140, 147, 684 P.2d 699 (1984) (Prosecutors are “public officers whose ‘devotion to duty is not measured, like the prowess of the savage, by the number of their victims.’ ” (quoting State v.

Montgomery, 56 Wash. 443, 447-48, 105 P. 1035 (1909))). ¶21 In reversing Walker’s convictions, we do not retreat from the general rule that a defendant should contemporaneously object to improper comments. Proper and timely objections provide the trial court an opportunity to correct the misconduct and caution jurors to disregard it. It prevents abuse of the appellate process and saves the substantial time and expense of a new trial. State v. Emery, 174 Wn.2d 741, 761-62, 278 P.3d 653 (2012).

However, the failure to object will not prevent a reviewing court from protecting a defendant’s constitutional right to a fair trial. “An objection is unnecessary in cases of incurable prejudice only because ‘there is, in effect, a mistrial and a new trial is the only and the mandatory remedy.’ ” Id. at 762 (quoting Case, 49 Wn.2d at 74). Reversing a defendant’s convictions for prosecutorial misconduct is a serious remedy that we do not lightly impose given the consequential impact on the victim or his or her family and the expense of a new trial. B.

The prosecution committed egregious misconduct in its closing PowerPoint presentation ¶22 A defendant arguing that prosecutorial misconduct violated his or her right to a fair trial has the burden of showing the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial. Glasmann, 175 Wn.2d at 704. And where a defendant raises the issue for the first time on appeal, the defendant must also show “that the misconduct was so flagrant and ill intentioned that an instruction would not have cured the prejudice.” Id.

We do not focus on the prosecutor’s subjective intent in committing misconduct, but instead on whether the defendant received a fair trial in light of the prejudice caused by the violation of existing prosecutorial standards and whether that prejudice could have been cured with a timely objection. Emery, 174 Wn.2d at 762. ¶23 We have no difficulty holding the prosecutor’s conduct in this case was improper.

Closing argument provides an opportunity to draw the jury’s attention to the evidence presented, but it does not give a prosecutor the right to present altered versions of admitted evidence to support the State’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt. Glasmann, 175 Wn.2d at 706-07, 712. Furthermore, RPC 3.4(

e) expressly prohibits a lawyer from vouching for any witness’s credibility or stating a personal opinion “on the guilt or innocence of an accused.” The prosecution committed serious misconduct here in the portions of its PowerPoint presentation discussed above — it included multiple exhibits that were altered with inflammatory captions and superimposed text; it suggested to the jury that Walker should be convicted because he is a callous and greedy person who spent the robbery proceeds on video games and lobster; it plainly juxtaposed photographs of the victim with photographs of Walker and his family, some altered with racially inflammatory text; and it repeatedly and emphatically expressed a personal opinion on Walker’s guilt.

C. The misconduct was prejudicial to Walker’s case and could not have been cured with a timely objection ¶24 Both this case and Glasmann deal with PowerPoint presentations during closing argument that included altered exhibits, expressions of the prosecutor’s opinion on the defendant’s guilt, and clear efforts to distract the jury from its proper function as a rational decision-maker. Glasmann required the jury to analyze the “nuanced distinctions” between different degrees of offenses. Id. at 710.

The issue at trial here was the extent, if any, of Walker’s involvement in the crimes, requiring the jury to make sense of a multistage criminal scheme with several participants playing separate roles. The State’s PowerPoint presentation obfuscated the complicated facts presented to the jury here at least as much as the presentation in Glasmann did.

The State’s misconduct here was so flagrant, pervasive, and prejudicial that it could not have been overcome with a timely objection and an instruction to the jury to disregard the improper slides. ¶25 Our analysis of “prejudicial impact” does not rely on a review of sufficiency of the evidence. The Court of Appeals minimized the prejudicial impact because “the State’s case was strong and Walker’s theory was not nearly as plausible as the defendants’ theories in Reed and Glasmann.” State v. Walker, No. 41970-0-II, slip op. at 17 (unpublished portion) (Wash. Ct. App. Dec. 20, 2013).

While the State had strong evidence in those cases — enough to affirm the convictions had the defendant challenged the sufficiency of the evidence — “[t]he focus must be on the misconduct and its impact, not on the evidence that was properly admitted.” Glasmann, 175 Wn.2d at 711.

The voluminous number of slides depicting statements of the prosecutor’s belief as to defendant’s guilt, shown to the jury just before it was excused for deliberations, is presumptively prejudicial and may in fact be difficult to overcome, even with an instruction. ¶26 Equally troubling is the Court of Appeals’ suggestion that to be entitled to a fair trial, Walker had the duty to come up with some plausible defense theory beyond the State’s failure to meet its burden of proof and to produce evidence in support. Walker, slip op. at 16-17 (unpublished portion).

This suggestion disregards “the bedrock upon which the criminal justice system stands” — every defendant is entitled to a presumption of innocence, which is overcome only when the State proves guilt beyond a reasonable doubt as determined by an impartial jury based on evidence presented at a fair trial. State v. Bennett, 161 Wn.2d 303, 315, 165 P.3d 1241 (2007). ¶27 We decline the State’s invitation to disavow Glasmann to the extent it holds the prosecution should have known it was committing misconduct. Glasmann is certainly not the first case to hold that visual aids must be used only for their proper purpose.

Nearly 30 years ago, the Court of Appeals observed that “in order to help the jury more easily understand other evidence, modern visual aids can and should be utilized. A trial judge must, however, be careful to avoid letting the visual aids be used more for their shock value than to educate.” State v. Strandy, 49 Wn. App. 537, 541-42, 745 P.2d 43 (1987). There is also nothing new about the idea that purported visual aids can cross the line into unadmitted evidence. E.g., Holland v. United States, 348 U.S. 121, 127-28, 75 S. Ct. 127, 99 L. Ed. 150 (1954); Gustin v. Jose, 11 Wash. 348, 350, 39 P. 687 (1895).

Given the serious need to curb abuses of such visual presentations, we encourage trial court judges to intervene and to preview such slides before they are shown to a jury. Providing the presiding judicial officer with a printed copy of the PowerPoint slides in advance is not burdensome and could curtail the necessity of a retrial due to misconduct. ¶28 Walker has met his burden of showing that the State committed prosecutorial misconduct that was so prejudicial and flagrant that it denied Walker his constitutional right to a fair trial. II.

The jury was properly instructed on the law of accomplice liability ¶29 While prosecutorial misconduct committed at trial is dispositive, we address Walker’s challenge to the jury instructions in case the issue is raised on remand. Our review of the legal sufficiency of jury instructions is de novo. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Jury instructions are not legally sufficient if they relieve the State of its burden to prove every essential element of the charged crime. State v.

Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995). ¶30 Walker specifically challenges the definitional and to-convict instructions on premeditated murder. The definitional instruction reads, “A person commits the crime of premeditated murder in the first degree, as charged in Count I, when, with a premeditated intent to cause the death of another person, he or an accomplice causes the death of another person.” Clerk’s Papers at 213.

The to-convict instruction reads: To convict the defendant of the crime of premeditated murder in the first degree, [C]ount I, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about [the] 2nd day of June, 2009, the defendant or an accomplice, acted with intent to cause the death of Kurt Husted;

(2) That the intent to cause the death was premeditated;

(3) That Kurt Husted died as a result of the defendant’s or an accomplice’s acts; and

(4) That any of these acts occurred in the State of Washington. If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty. On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty. Id. at 216.

Walker argues these instructions allowed the jury to convict him as an accomplice to premeditated murder even if the jury may have believed that the principal (Finley, the shooter) had committed only intentional murder without premeditation. This, Walker argues, relieved the State of its burden of proving the essential element that the principal in fact committed the crime that Walker was charged with as an accomplice — intentional murder with premeditation. ¶31 In the premeditated murder context, the level of knowledge or intent shared between an accomplice and principal may be a highly relevant issue.

See, e.g., State v. Roberts, 142 Wn.2d 471, 505, 14 P.3d 713 (2000). We do not foreclose the possibility that the level of shared intent may be important in other cases and circumstances, including some we have not yet considered, but it is not a relevant consideration here. ¶32 The complicity statute makes an accomplice legally accountable for a crime “if it is committed by the conduct of another person.” RCW 9A.08.020(1) (emphasis added).

The statute provides that one can be liable as an accomplice for another’s conduct even where the accomplice is “legally incapable” of committing the crime, RCW 9A.08.020(4), and that one can be convicted as an accomplice even if the principal is not prosecuted for or convicted of the same (or any) crime, RCW 9A.08.020(6). ¶33 Walker concedes that this court and the Court of Appeals have affirmed other convictions where a jury may have split the elements between two participants. Pet’r’s Suppl. Br. at 29 (citing State v. McDonald, 138 Wn.2d 680, 981 P.2d 443 (1999); State v.

Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991); State v. Haack, 88 Wn. App. 423, 958 P.2d 1001 (1997)); see State v. Kwan Fai Mak, 105 Wn.2d 692, 743-45, 718 P.2d 407 (1986), rejected in part on other grounds by State v. Hill, 123 Wn.2d 641, 645, 870 P.2d 313 (1994). As held by the Court of Appeals below, the law of accomplice liability allows the jury to reach a conviction by splitting the elements of premeditated first degree murder between accomplices. Walker, 178 Wn. App. at 486 (citing Haack, 88 Wn. App. at 427-28).

A conviction based on split elements may be affirmed “[s]o long as the State proved beyond a reasonable doubt to the satisfaction of all of the jurors that at least one of the participants [had the requisite intent] and at least one but not necessarily that same participant [committed the criminal act].” Haack, 88 Wn. App. at 429. ¶34 Walker argues that he was not physically present at the shooting, while in Haack, Hoffman, and McDonald there was evidence that the defendant was physically present. In some cases this might be an important factual distinction, but here it is not.

A trial court’s jury instructions must be considered in the context of the case actually presented. In this case, the State introduced evidence that Walker and Finley planned the crime ahead of time such that Finley could have premeditated intent and caused the death. It also introduced evidence that Walker contemporaneously participated in the crime via cellular phone, and in fact ordered the shooting, such that Walker could also have both premeditated and partially caused the death. Walker concedes that splitting the elements makes sense when there is evidence that both participants acted as principals.

Such evidence was presented here, and the instructions were proper. III. The lack of a unanimity instruction on accomplice liability did not violate Walker’s right to a unanimous jury verdict ¶35 Walker also argues that the jury instructions discussed above, when given without a unanimity instruction, violated his right to a unanimous jury verdict. We have already rejected this argument because principal and accomplice liability are not alternative means. Hoffman, 116 Wn.2d at 104-05.

The Court of Appeals correctly concluded that the jury needs to unanimously find only that both the principal and accomplice participated in the crime; it need not unanimously conclude as to the manner of participation. It does not matter in this case that Finley, not Walker, performed the actual shooting given Walker’s level of involvement and participation. ¶36 Walker urges us to disavow this precedent, arguing that the right to a unanimous verdict under

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section 21 of the Washington Constitution is greater than that provided in the United States Constitution under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). A Gunwall analysis is appropriate where the contours of the Washington Constitution are not fully developed, but on this issue our precedent is clear, and Walker’s cursory Gunwall analysis is insufficient to show it should be disavowed. No Washington court has examined

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section 21 under Gunwall to determine whether or not an accused person has a constitutional right to jury unanimity as to the mode of participation in a felony accomplice case, and we decline to do so without sufficient analysis. CONCLUSIONS ¶37 We affirm the Court of Appeals’ holding that the jury instructions properly stated the law on accomplice liability and did not violate Walker’s right to a unanimous jury verdict.

However, we reverse its conclusion that Walker received a fair trial in light of the prosecutorial misconduct the State committed in its closing argument and we reverse Walker’s convictions and remand for a new trial. Madsen, C.J., and Johnson, Owens, Fairhurst, and González, JJ., concur. Because we reverse Walker’s convictions due to prosecutorial misconduct, we do not reach Walker’s claim that he received ineffective assistance of counsel. In its supplemental brief, the State reasserts the cross assignment of error it raised on direct appeal. That issue is not properly before us, and we will not consider it.

RAP 13.4(d). Walker also contends the prosecutor committed misconduct during opening statements. The prosecutor’s assertion that Walker was “lying like crazy” because his statements to the police conflicted with Williams-Irby’s testimony, Suppl. VRP (Mar. 7, 2011) at 48, improperly vouched for Williams-Irby’s credibility. State v. Allen, 176 Wn.2d 611, 631, 294 P.3d 679 (2013). We need not determine whether it was reversible error because the impropriety of the prosecutor’s closing was so egregious.

We agree with that portion of Justice Gordon McCloud’s concurrence noting that some of the State’s PowerPoint slides implicitly encouraged a verdict specifically based on racial prejudice. We decline the State’s invitation to adopt the plain error standard contemplated by Fed. R. Crim. P. 52(b). Glasmann does not hold that the color red is inherently prejudicial, that the use of all capital letters always constitutes shouting, or that the word “guilty,” when presented as a written word in a visual aid, always constitutes an improper expression of the prosecutor’s opinion on guilt.

Because it misconstrues our holdings, we need not consider the State’s argument that we should disavow them. Walker objected to the to-convict instruction at trial, 12 VRP at 1331, but did not object to the definitional instruction. Jury instructions that relieve the State of its burden to prove every element of the crime charged may be considered for the first time on review. State v. O’Hara, 167 Wn.2d 91, 100-01, 217 P.3d 756 (2009). The concurrence ignores the evidence presented in this case and instead attempts to gradually erode accomplice liability under a hypothetical case.

See concurrence (Gordon McCloud, J.) at 491,494-98. Contrary to the suggestion that the jurors might have convicted Walker even if he may have done nothing since he was not the shooter, the evidence presented showed that Walker planned the robbery with Finley, provided the gun, and ordered Finley to shoot. Jurors are not so easily confused by multiple instructions and are capable of understanding the difference between guilt by association and guilt because a person helped plan and carry out a murder. It is not a defense that another person also partially caused the death. McDonald, 138 Wn.2d at 690-91.