Opinion
No. 26732-6-III
Filed: February 26, 2009. UNPUBLISHED OPINION
Appellant Vincent Mercado contends that his counsel provided ineffective representation by failing to seek an instruction on "willfulness" at his Benton County Superior Court trial for theft of a firearm and felony violation of a no-contact order. We conclude that he has not established manifest constitutional error necessary to permit review of his claim. Accordingly, the convictions are affirmed. The noted charges were filed after Mr. Mercado met with Amanda Dingler, the mother of his three children, at a convenience store in violation of a no-contact order she had obtained. The two began arguing and Mr. Mercado displayed a handgun, which Ms. Dingler recognized as belonging to Jason Tolman. It turned out to have previously been stolen from Mr. Tolman. Mr. Mercado took the stand in his own defense and denied meeting Ms. Dingler at the convenience store. His counsel argued that theory to the jury, challenging Ms. Dingler's credibility.
At trial, defense counsel proposed several instructions, but later withdrew them. The jury was instructed that it must find Mr. Mercado willfully had contact with Ms. Dingler in order to convict him of the no-contact order violation charge. The court was not asked to, and did not, instruct the jury on the definition of "willfulness." The jury convicted Mr. Mercado as charged. He received a standard range sentence and timely appealed to this court.
Instructions 10 and 11; Clerk's Papers (CP) at 44-45.
The court instructed the jury on the definition of "intentionally" in support of the firearm theft charge. Instruction 8; CP at 42.
This appeal raises a single claim that Mr. Mercado's trial counsel erred in failing to seek a "willfulness" instruction on the no-contact order charge. The defense did not seek such an instruction, nor challenge the trial court's failure to give that instruction. In such circumstances, the general rule is that an appellate court will not consider an issue on appeal which was not first presented to the trial court. RAP 2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). However, RAP 2.5(a)(3) permits a party to raise initially on appeal a claim of "manifest error affecting a constitutional right." This authority is permissive; an appellate court will refuse to consider such issues if the record is not sufficient to permit review of the claim. State v. McFarland, 127 Wn.2d 322, 899 P.2d 1251 (1995).
The law is well settled concerning the standards for evaluating counsel's performance at trial. The Sixth Amendment guarantees the right to counsel. More than the mere presence of an attorney is required. The attorney must perform to the standards of the profession. Counsel's failure to live up to those standards will require a new trial when the client has been prejudiced by counsel's failure. McFarland, 127 Wn.2d at 334-335. In evaluating ineffectiveness claims, courts must be highly deferential to counsel's decisions. A strategic or tactical decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-691, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
There also is much well-settled law concerning instructions used in criminal trials. It is constitutional error to fail to properly instruct the jury on the elements of the crime. Scott, 110 Wn.2d at 688 n. 5. The failure to instruct on definitional terms, however, is not manifest constitutional error. Id.
Mr. Mercado argues that since "willfully" is an element of the no-contact order charge, the term needed to be defined for the jury. This argument runs squarely against the ruling in Scott. As required, the jury was told that one of the elements of the crime was that the contact was "willfully" made. That satisfied the demands of the constitution. The jury was told that "willfully" was one of the elements the prosecution had to prove beyond a reasonable doubt. The failure to further define that element is not manifest constitutional error. Scott, 110 Wn.2d at 688-691. Because the defense did not present or request the definitional instruction, the alleged error is not "manifest" and cannot be presented for the first time on appeal. Id. at 691.
While Scott squarely controls the outcome of this argument, we also note that even if this issue were one of manifest constitutional error, the outcome would be the same. In order to prevail on an ineffective assistance claim, an appellant must show that counsel's alleged failure was not the result of strategic or tactical reasons. Strickland, 466 U.S. at 689-691. Given the defense theory of the case — that there was no meeting between Mr. Mercado and Ms. Dingler — it is understandable that counsel did not want to get involved in an argument about whether or not the two had an accidental meeting. Whether or not there was a "willful" meeting simply was not at issue under the defense theory of the case. For that reason, also, appellant cannot prevail on his ineffective assistance claim.
There is no manifest constitutional error presented by this appeal. The convictions are affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Schultheis, A.C.J., Kulik, J. Concur