Opinion
No. 38260-1-II.
October 20, 2009.
Appeal from the Superior Court, Clark County, No. 08-1-00904-1, John P. Wulle, J., entered August 20, 2008.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Quinn-Brintnall, JJ.
Adam White appeals his conviction of second degree assault by strangulation, arguing that he was denied effective assistance of counsel when his attorney failed to request a jury instruction on fourth degree assault as a lesser included offense. Because counsel's failure to request the lesser included offense instruction may well have been a tactical decision, we affirm.
FACTS
White and his 13-year-old daughter, Ashley White, had an argument at their apartment. White, who was sitting on the couch, threw a beer bottle on the floor. Ashley, who was sitting in a chair near the couch, reached for the bottle and threw it back, hitting White in the head. White walked over to her and according to Ashley, White reached down and put his hands around her neck. Ashley testified that she felt she could not breathe for two or three seconds while White's hands squeezed her neck. Dawn Spencer, who was also present, testified that she "did not see any choking," rather, she saw White only restrain Ashley's arms. Report of Proceedings (RP) at 113. Spencer later conceded it was possible that White put his hands on Ashley's neck when she was not looking.
For clarity, we refer to all parties with the last name "White," other than the appellant, by their first names.
Ashley stood up and ran to the bathroom. White followed her into the bathroom and shut the door. Ashley testified that White told her, "I want to talk to you" while they were in the bathroom together. RP at 57. Ashley ran out of the bathroom and into the bedroom of her older sister Aimee, who also lived in the apartment. Aimee testified that when Ashley came into her room she was crying, seemed nervous, and told her, "Aimee, Dad choked me." RP at 86.
Officer Jordan Rasmussen and Officer Edward Letarte responded to Aimee's emergency call. Rasmussen spoke with Ashley and noticed that she was very nervous and distraught, her whole body was shaking, and she spoke very fast when telling him about the incident. Ashley told Rasmussen that after she "tossed" the bottle back at White, he yelled at her, "You're this close to getting your ass kicked" before confronting her in the bathroom and choking her. RP at 26-27. Rasmussen noticed redness, a minor scratch, and minor bruising on the left side of Ashley's neck.
Ashley testified that although she told Officer Rasmussen that White choked her for 10 to 15 seconds in the bathroom, she later realized the choking did not last that long and she "meant to say in the living room." RP at 56, 63.
Meanwhile, Letarte found White in another apartment in the building. White initially denied knowing why the police were there, but he later admitted to a problem in his upstairs apartment with his daughter.
A Child Protective Services investigator testified that in an interview with Ashley the day after the incident, Ashley "had bruising on her neck that was dark red." RP at 81.
The State charged White with assault in the second degree by strangulation in violation of RCW 9A.36.021(1)(g). At the end of trial, defense counsel did not request an instruction for assault in the fourth degree as a lesser included offense. The jury convicted White guilty as charged.
ANALYSIS I. Effective Assistance of Counsel
White argues that his counsel ineffectively represented him when he failed to request a jury instruction for fourth degree assault as a lesser included offense to second degree assault by strangulation. He reasons that given Spencer's testimony, the jury could have concluded that no strangulation occurred, but that White committed fourth degree assault by restraining Ashley against her will in the living room chair.
To demonstrate that counsel ineffectively represented him, White must show that (1) his attorney's performance was so deficient that it "fell below an objective standard of reasonableness" and (2) the deficient performance prejudiced White. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Brockob, 159 Wn.2d 311, 344-45, 150 P.3d 59 (2006). A defendant must meet both prongs to satisfy the test. Brockob, 159 Wn.2d at 345.
To establish deficient performance, White must demonstrate absence of legitimate, strategic, or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). We give trial counsel considerable deference, presuming that counsel effectively represented the defendant. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). And, if trial counsel's conduct can be characterized as legitimate trial strategy or tactics, we will not find it deficient. McNeal, 145 Wn.2d at 362.
An instruction on an inferior degree offense is warranted if (1) the statutes for both the charged offense and the proposed inferior degree offense "`proscribe but one offense'"; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense (the factual prong). State v. Fernandez-Medina, 141 Wn.2d 448, 454, 6 P.3d 1150 (2000) (quoting State v. Peterson, 133 Wn.2d 885, 891, 948 P.2d 381 (1997)). However, the decision to not request an instruction on a lesser offense may have been a legitimate trial strategy. State v. Hassan, 151 Wn. App. 209, 218, 211 P.3d 441 (2009); see also Strickland, 466 U.S. at 689 (defendant must overcome the presumption that the challenged action might be considered sound trial strategy).
In Hassan, the court rejected the defendant's claim that counsel was ineffective for not submitting lesser instruction of marijuana possession to charge of possession with intent to deliver. In doing so, the court relied on State v. Ward, 125 Wn. App. 243, 104 P.3d 670 (2004), where the court measured counsel's effectiveness by asking whether it was objectively reasonable. Hassan, 151 Wn. App. at 219-21; see Ward, 125 Wn. App. at 249-50. Ward considered three factors in finding counsel ineffective: (1) the significant disparity in the penalties for the two crimes; (2) that the defendant's theory of self-defense applied to both crimes; and (3) the risk posed by the significant impeachment of the defendant. Ward, 125 Wn. App. at 249-50.
Applying the same analysis here, White's claim that counsel should have requested the lesser instruction on fourth degree assault fails. There is considerable disparity between the 10 years maximum sentence for second degree assault and the 1-year maximum for fourth degree assault (gross misdemeanor). RCW 9A.20.021(1)(b), (2). But White's actual risk was less than this disparity suggests. The trial court calculated White's offender score at 2 because he had one prior conviction. This resulted in a sentencing range of 6 to 12 months, and the State had not alleged any aggravating factor. The trial court actually sentenced White to 366 days after the parties stipulated to an exceptional sentence (1 day). Thus, the disparity between the penalties for the charged crime and the lesser is not significant. And we presume that counsel considered White's probable sentence in evaluating the risks involved.
The conviction also counts as a strike under the "three strikes" law, but it is White's first strike. RCW 9.94A.570.
White presented no affirmative defense. Accordingly, the second element in Ward does not apply. The third element strongly suggests that counsel's decision not to submit a lesser instruction was tactical. The defense showed that the victim was an angry young woman who at times was physically violent. More importantly, she had given inconsistent stories about the critical event, whether White had strangled her. She reported to the police at the scene that he had strangled her for 10 to 15 seconds in the bathroom. Yet she testified that he had strangled her for 2 to 3 seconds in the living room. Finally, the only other person present testified that although she averted her eyes from time to time during the altercation, she never saw White's hands on the victim's neck. In short, the State's case for second degree assault based on strangulation was far from compelling. If the jury believed that White touched his daughter during their altercation but that the State failed to prove beyond a reasonable doubt he strangled her, it would have had to acquit. White has not persuaded us that counsel's decision not to ask for a lesser included offense instruction was other than tactical. Such an all or nothing approach can be a legitimate trial strategy. See State v. Hoffman, 116 Wn.2d 51, 112-13, 804 P.2d 577 (1991) (the defendants' decision to not have a lesser included instruction was clearly a calculated defense trial tactic.)
We do not suggest that the factors the Ward court considered are the only ones to consider in evaluating the objective reasonableness of counsel's representation.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and QUINN-BRINTNALL, J., concur.