Opinion
No. 51361-3-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-1-01306-4. Judgment or order under review. Date filed: 11/01/2002. Judge signing: Hon. Phillip Hubbard.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Eric Broman, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Sabrina Katie Housand, Amini Law Firm PS, 929 109th Ave NE, Bellevue, WA 98004-4404.
Michael Jason Taylor (Appearing Pro Se), Doc# 943259, Wa State Penitentiary, 1313 N. 13th Avenue, Walla Walla, WA 99362-1065.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Pros Office, W 554, 516 3rd Ave, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
Michael Taylor appeals from convictions on three counts of felony violation of a no contact order. He argues that he received ineffective assistance of counsel because his lawyer failed to propose the right limiting instruction. He fails to demonstrate that he was prejudiced by his counsel's deficient performance. He also challenges his exceptional sentence. We affirm.
Taylor began dating Sarah Van Hoy in 1994, when she was 13 and he was 23. They dated for less than a year, but since their relationship ended in 1995 Taylor continued to harass Van Hoy. In 1995 he was convicted of assaulting her, and in 1996 he was convicted of misdemeanor and felony harassment. In this case, Taylor was charged with five incidents that allegedly occurred on separate dates in the fall of 2000. He was convicted of felony no contact order violations in three of the incidents. In one, Taylor was accused of leaving a tub full of toys with a note for Van Hoy outside her motel room. In another, Taylor was accused of following Van Hoy on to a bus and tried to prevent her from getting off. In the third, Taylor pepper-sprayed Van Hoy when she answered a knock on her motel room door as her daughter slept nearby. The jury acquitted Taylor of a charge of felony harassment of Van Hoy and hung on an additional count of felony violation of a no contact order.
At trial, the court allowed Van Hoy to testify that Taylor was convicted of assaulting her in 1995 and of harassment and felony harassment in 1996, but she was not allowed to divulge any details about the incidents. The State sought the admission of this ER 404(b) evidence to establish that Van Hoy's fear of Taylor was reasonable in connection with the felony harassment charge. Defense counsel sought a limiting instruction with respect to the ER 404(b) evidence, but proposed an instruction based on WPIC 5.05, which is given when a defendant's prior convictions are admitted under ER 609. Although the court explained why this instruction was inappropriate, counsel never submitted a correct instruction based on WPIC 5.30. Taylor did not testify.
WPIC 5.30 reads:
"Evidence has been introduced in this case on the subject of for the limited purpose of . You must not consider this evidence [for any other purpose] [for the purpose of]."
Limiting instruction: Taylor argues that the trial court erred by failing to give the appropriate limiting instruction even though his counsel failed to propose it. But the failure to instruct in the absence of a request is not error. State v. Ellard, 46 Wn. App. 242, 244, 730 P.2d 109 (1987).
In the alternative, he argues that his trial counsel provided ineffective assistance by failing to propose the correct limiting instruction. To establish that he received ineffective assistance of counsel, Taylor must demonstrate that his lawyer's performance was deficient and the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The State concedes that trial counsel's performance was deficient. The failure to offer an appropriate limiting instruction cannot be characterized as a tactical decision, since counsel attempted to offer a limiting instruction but proposed the wrong one. Had the correct limiting instruction been proposed, the trial court was obligated to so instruct the jury. State v. Saltarelli, 98 Wn.2d 358, 362, 655 P.2d 697 (1982). The central question is whether counsel's failure to propose the correct instruction prejudiced Taylor. He argues that he was prejudiced by the failure to give the instruction because the existence of the prior convictions might have made the jury less willing to acquit on all counts, since their acquittal on one count and inability to reach a verdict on another shows that the jury must have been troubled by Van Hoy's credibility. Without a limiting instruction, Taylor contends, the jury was free to consider his prior convictions in evaluating the State's theory that the case was about "fear, torment and control." VRP (Oct. 9, 2002) at 98.
But the jury rejected the State's theory that Taylor had engaged in a pattern of offending against Van Hoy by distinguishing among the charges and acquitting or hanging on two and convicting on the other three. The State cited Taylor's prior convictions in closing argument only to demonstrate that Van Hoy had reason to fear Taylor, precisely the reason for which the ER 404(b) evidence was admitted. It is possible that the jury could have used the evidence improperly despite the guidance from the prosecutor. But the jury acquitted Taylor of felony harassment, suggesting that it did not conclude Taylor acted in conformity with his past conduct, since two of the three prior convictions were for harassment. It also appears from the record that the jury convicted Taylor of counts where there was some independent corroboration Van Hoy's testimony. Taylor has not established that but for his counsel's failure to propose the correct limiting instruction, the result of the trial would have been different. Exceptional sentence: The trial court sentenced Taylor to an exceptional sentence of 60 months of confinement, above the standard range of 33-43 months. Taylor argues that the trial court improperly relied on his "lack of remorse" and "lack of empathy" in imposing the exceptional sentence. Taylor points out that he did not testify and declined to allocute at sentencing, so there was little, if any, basis for the court to say he lacked remorse. Refusing to admit guilt or remaining silent is an exercise of one's rights, not an indication of lack of remorse. State v. Russell, 69 Wn. App. 237, 848 P.2d 743 (1993).
VRP (Oct. 30, 2002) at 18 states in part, as follows:
"Many domestic violence cases involve sequences of events like this, and unfortunately the fact of the matter is many of them involve permanent injuries. And all of them involve terror, and it's important to remember that. And this situation I think there is, because of the length of the relationship, the lack of remorse, the apparent lack of empathy, I have an uneasy feeling about whether Ms. Van Hoy would be safe if the court were not to take the opportunity to remove Mr. Taylor from the community for an extended period of time."
He also argues that the case should be remanded for resentencing because no findings of fact and conclusions of law had been entered as of the date his brief was filed. Findings of Fact and Conclusions of Law were subsequently entered, however, and Taylor has not alleged that they were tailored or that he was otherwise prejudiced by their delayed entry. State v. Hillman, 66 Wn. App. 770, 774, 832 P.2d 1369 (1992). Remand is thus inappropriate.
Taylor misconstrues the trial court's justification for the exceptional sentence. The trial court did not rely on lack of remorse as an aggravating factor. Rather, it noted that over a long period of time Taylor's harassment of Van Hoy had been undeterred by her evident distress and thus the court was concerned that Van Hoy would not be safe from Taylor unless it imposed an exceptional sentence.
Taylor does not challenge the statutory aggravating factors cited by the trial court. These include RCW 9.94A.535(2)(h)(i), (ii), and (iii), which apply to domestic violence offenses where certain circumstances are present. The trial court found that (1) the offenses were part of an ongoing pattern of psychological and physical abuse of Van Hoy, manifested by multiple incidents over a prolonged period of time; (2) Van Hoy was pepper sprayed within the sight or sound of Van Hoy's minor child; (3) Taylor's conduct during the pepper spray incident manifested deliberate cruelty or intimidation of Van Hoy. Additionally, the trial court found that Taylor's unscored misdemeanor history results in a presumptive sentence that is clearly too lenient. RCW 9.94A.535(j). There is ample evidence in the record to support the trial court's findings with respect to these aggravating factors.
RCW 9.94A. 535(h) provides:
"The current offense involved domestic violence, as defined in RCW 10.99.020, and one or more of the following was present:
"(i) The offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time;
"(ii) The offense occurred within sight or sound of the victim's or the offender's minor children under the age of eighteen years; or
"(iii) The offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim."
Affirmed.
APPELWICK and BECKER, JJ., concur.