                                                                                      FILED
                                                                               4 OURT OF APPEALS
               IN THE COURT OF APPEALS OF THE STATE OF SWINCTON

                                                       DIVISION II            2015 AUG 10       AM 9: 05

                                                                               ST,gg. 0 6W      jfL      TOIN
    STATE OF WASHINGTON,

                                                                               BY
                                             Respondent,                                     t1:1 Y

          V.




    CHERYL STRONG,                                                         UNPUBLISHED OPINION




         MELNICK, J. —           Cheryl Strong appeals her felony harassment' convictions, arguing that the

trial court erred by admitting three of her prior convictions, that a police officer provided

inadmissible opinion testimony which denied her a fair and impartial trial, and that her counsel

provided ineffective assistance because he both failed to request a limiting instruction relating to

her prior convictions and failed to object to the officer' s opinion testimony. Lastly, Strong claims

cumulative errors denied her a fair trial.


         We disagree with Strong. The trial court did not abuse its discretion by admitting Strong' s

prior convictions and her lawyer' s decision to not request a limiting instruction on the prior

convictions was            a tactical decision.     Strong cannot raise the opinion testimony error for the first

time on appeal because it does not constitute a manifest error affecting a constitutional right.2 The

alleged opinion testimony at issue did not invade the province of the jury; therefore, Strong fails

to   show   that her counsel was deficient for              not   objecting to the testimony.         Finally, Strong' s

cumulative error claim is without merit. We affirm.




1
    RCW 9A.46. 020( 1)(         a)(   i), (2)( b)

2
    RAP 2. 5(   a)(   3)
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                                                             FACTS


         In anticipation of moving to a new residence, Strong called her son' s elementary school to

report a change of address.           Unfortunately, a misunderstanding arose between Strong and school

personnel about her new address and its effective date. When Strong' s son did not arrive home on

the school bus as she expected, Strong called the school in a panicked state and demanded to know

what had been done with her son. A school secretary advised Strong that her son had been put on

a school   bus destined for her           new address.       Strong drove to the new address, but she could not

locate her son. Strong called the school again, but no one answered her call. She left the following

message on       the   school' s voice mail system: "         Sorry, [ son' s       name],    but I' m gonna fucking shoot

everybody that         goes   to   your   fucking   school, works         there."    Ex. 1.    Strong' s fiance later found

Strong' s son shortly thereafter.

         The     following     morning      Strong    sent   her   son   toschool as usual.        Later that morning, the

school   secretary      and superintendent          listened to    Strong'   s   threatening    voicemail message.   They

immediately called 911 and placed the school campus in lockdown status. Deputy Robert Nelson
responded       to the school      where   he listened to the          message.     He recognized Strong' s voice on the

message.




         Strong learned about the school' s lockdown and called to find out if she could pick up her

son.   The school initially said no, but at Deputy Nelson' s direction, the school secretary called

Strong back and told her that she could pick up her son. Deputy Nelson arrested Strong when she

arrived at the school.




3 The campus included an elementary school, a junior -senior high school, head start program, the
district office, and the transportation department.




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           The State     charged    Strong   with    two   counts of   felony   harassment ( threats to kill).           They also

charged her with the aggravating factor that the offenses involved a destructive and foreseeable

impact on persons other than the direct victims.4

           The    case proceeded        to trial in   May    2014.     The State provided notice to Strong that it

intended to impeach her            with    four   prior convictions     if   she   testified   at   trial.   Those convictions


were: forgery, theft in the second degree, theft in the first degree, and burglary in the second

degree.'     Strong objected to the use of three of the convictions. She argued that because more than

ten years had elapsed since the dates of conviction or release from confinement, ER 609 precluded

their admission because the probative value of the evidence did not substantially outweigh its

prejudicial       effect.      The . trial court ruled that all four convictions would be admissible for

impeachment if Strong testified. Strong did not request a limiting instruction for the jury' s use of

this evidence.



            Deputy Nelson testified at trial that he instructed the school secretary to contact Strong and

advise her that she could pick up her son at the school during the lockdown if she described the
                            be                    identified any                               be accompanying her.           The
vehicle she would                driving   and                       people who would




prosecutor        followed up     by   asking    Deputy Nelson, " Why did          you   do that?" Report of Proceedings


 RP)   at   57.       Deputy   Nelson    responded: "      So I would know what she was driving, who might be

with   her   as   I   contacted   her. At this     point   in time I believed      she committed        this   crime."    RP at 57


 emphasis added).           Strong did not object to this testimony.




4 RCW 9. 94A.535( 2)( r).

  More than 10 years had elapsed since Strong' s convictions for and confinement on any of the
theft or burglary convictions. The forgery occurred in 2004.

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             Strong   also   testified   at   trial.   She admitted leaving the message on the school voicemail

system but explained that she thought she was only talking to herself, she did not intend to harm

anyone, and the message was inadvertently recorded. Strong also acknowledged her prior criminal

history, including forgery, theft, and burglary convictions.

             A jury found Strong guilty as charged. It also found the State proved the aggravating factor

beyond a reasonable doubt. Strong appeals.

                                                           ANALYSIS


I.           STRONG' S PRIOR CONVICTIONS


             A.       Admission of Prior Convictions for Impeachment


             Strong has four prior convictions involving dishonesty: theft in the second degree, forgery,

theft in the first degree, and burglary in the second degree. Strong argues that the trial court erred

by admitting evidence of her theft and burglary convictions because the trial court failed to

meaningfully balance their probative value and prejudicial effect as required under ER 609( b) for
convictions more than 10 years old.6 We disagree.

              Evidence of prior convictions may be admissible for the purpose of attacking the

credibility       of a witness,   including a criminal       defendant,   under   ER 609."   State v. Bankston, 99 Wn.


App.    266, 268, 992 P. 2d 1041 ( 2000). However if a period of more than ten years has passed since


the conviction or release from confinement imposed for the conviction, evidence of the conviction


is admissible only if the court determines that the probative value of admitting the conviction

substantially       outweighs     its   prejudicial effect.    ER 609( b).   To perform the balancing test required



6
  Strong concedes that the forgery conviction was admissible to impeach her credibility as a
witness without balancing because it involves dishonesty and is not more than ten years old. See
State v. Teal, 117 Wn. App. 831, 843, 73 P. 3d 402 ( 2003), aff'd, 152 Wn.2d 333, 96 P. 3d 974
    2004);   State v. Russell, 104 Wn. App. 422, 434, 16 P. 3d 664 ( 2001).



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by   ER 609( b)       a   trial court must consider the               following    factors: "`( 1) the length of the defendant' s


criminal record; (          2)   remoteness of       the       prior conviction; (   3)   nature of    the   prior crime; (   4). the age


and circumstances of the              defendant; ( 5)          centrality of the credibility issue; and (6) the impeachment

value of      the   prior crime."'          State   v.    Rivers, ' 129 Wn.2d 697, 705, 921 P. 2d 495 ( 1996) ( quoting


State   v.   Alexis, 95 Wn.2d 15, 19, 621 P. 2d 1269 ( 1980)).                       The trial court is required to balance the


probative value against unfair prejudice on the record. State v. Russell, 104 Wn. App. 422, 433,

16 P. 3d 664 ( 2001).


             We review a trial court' s ruling under ER 609 for an abuse of discretion. State v. Teal, 117

Wn.     App.    831, 844, 73 P. 3d 402 ( 2003), aff'd, 152 Wn.2d 333, 96 P. 3d 974 ( 2004); Bankston, 99


Wn.     App.       268.      An abuse of discretion occurs when the trial court' s ruling is manifestly

unreasonable or is based on untenable or unreasonable grounds. Bankston, 99 Wn. App. at 268.

             Strong argues that the trial court failed to conduct a meaningful balancing test as required

by   ER 609( b)           prior   to admitting her theft               and    burglary    convictions.       But the record reflects


otherwise. The trial court provided the following analysis on the record:

                       With       respect   to the Theft 2,  done— she was sentenced May 17
                                                                      which was

             of '02. The Theft 1 she was sentenced to in 11- 22- 01, and the Burglary 2 she was
             sentenced 5- 4- 01, so we' re talking about not a great deal of time for the commission
             of those, prior to the time that she committed the forgery, which is within the 10
             year period for time.
                          She has what I would consider to be a moderately lengthy criminal history.
             The    prior convictions, as           far   as   I' m   concerned are not all     that   remote.     The nature

             of the prior crimes we' re talking about Burglary and Theft and Forgery and they
             are all— they all deal with the issue of taking a property and/ or other crimes or acts

             of dishonesty.
                      Assuming she takes the stand— plus she was 35, she wasn' t a young adult
             at the time that these were committed, the issue of credibility here weighs heavily.
             If she denies making the call which she apparently did, when she talked to law
             enforcement, denied making a threat, said she didn' t mean anything, the jury needs
             to have the opportunity to balance those claims, with what her criminal history
             shows in the past.




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46318 -1 - II




                 Balancing— looking at the elements that I' m supposed to look at, as far as
          balancing them, my decision is all ... of them are available for use by the State
          under rule 609 for impeachment should the defendant choose to testify.

RPat 17- 18.


          Strong     contends         that the trial   court relied on unsuitable considerations—     including the fact

that Strong was not a young adult at the time of the commission of the prior offenses and the crimes

were committed near the 10 -year limitation. But the trial court' s observations on those issues were


part of its weighing process.

          Age is relevant because crimes committed at a young age may not be as probative of a

person' s truthfulness as crimes committed as an adult. State v. Hardy, 133 Wn.2d 701, 709, 946

P. 2d   1175 ( 1997).           Here, the significance of the trial court' s observation that Strong was

approximately 35 years old at the time of the prior convictions is that Strong committed the crimes

well    into her     adulthood.          Thus, the convictions were more likely to be relevant to her current

credibility than if she had committed the crimes as a young adult.

          The remoteness of prior convictions is significant because the older the conviction, the less

probative    it is   of   the   defendant'     s   credibility.   United States v. Hayes, 553 F. 2d 824, 828 ( 2d Cir.


1977); Jones, 101 Wn.2d at 121. Here, the trial court noted Strong' s burglary and theft convictions

fell just   outside   the      10 -year limitation      of   ER 609( b). This rationale is significant because the trial


court    considered       the time frame to be " not all that               remote;"   i.e., still probative of Strong' s

truthfulness.        RP   at    17.     Significantly, the trial court reasoned that the jury needed to be made

aware of Strong' s prior convictions because credibility would be a central part of the case if she

testified, and the prior convictions the State sought to admit were all crimes involving dishonesty.




                                                                    rol
46318 -1 - II



          The trial court considered all of the suggested factors, made findings on the record about


those factors,       and came   to   a reasonable conclusion.             Therefore, the trial court did not abuse its


discretion by admitting Strong' s prior convictions for burglary and theft under ER 609.

          B.          Ineffective Assistance       of   Counsel— Failure;to      Request a Limiting Instruction

          Strong argues that she received ineffective assistance of counsel because her lawyer failed

to propose a limiting instruction on the jury' s use of her prior convictions. We disagree.

          A defendant claiming ineffective assistance of counsel has the burden to establish both that

counsel' s representation was deficient and that the representation prejudiced the defendant' s case.

Strickland      v.   Washington, 466 U. S. 668, 700, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v.


Grier, 171 Wn. 2d 17, 32- 33, 246 P. 3d 1260 ( 2011).                   Failure to establish either prong is fatal to an

ineffective assistance of counsel claim. Strickland, 466 U. S. at 700. A lawyer' s representation is


deficient if after considering all of the circumstances, it falls below an objective standard of

reasonableness.         Grier, 171 Wn.2d      at   33. Deficient representation prejudices a defendant if there


is   a " reasonable     probability that, but for        counsel' s    deficient [ representation], the outcome of the


proceedings would         have been different." State v. Kyllo, 166 Wn.2d 856, 862, 215 P. 3d 177 ( 2009).


          Our scrutiny of counsel' s representation is highly deferential; we strongly presume that

counsel was effective.          Grier, 171 Wn.2d          at   33. "   If trial counsel' s conduct can be characterized


as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant

received       ineffective   assistance of counsel."           State v. McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280

 2002).        We can presume counsel did not request limiting instructions to avoid reemphasizing

damaging        evidence.      State   v.   Dow, 162 Wn.           App.    324, 335, 253 P. 3d 476 ( 2011);     State v.


Yarbrough, 151 Wn. App. 66, 90, 210 P. 3d 1029 ( 2009).




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46318 -1 - II




              Strong argues that her lawyer should have requested a limiting instruction concerning the

use of    her      prior convictions.         Strong' s credibility was crucial because she admitted to leaving the

threatening message on the school' s voicemail and her defense was that she had inadvertently left

the   message and            did    not   knowingly   threaten     anyone.      In this context, counsel may have decided

not to request a limiting instruction to avoid emphasizing Strong' s damaging criminal history for

crimes of dishonesty.

              Although a danger existed that the jury might consider the evidence of Strong' s prior

convictions for an improper purpose, we note that the risk was reduced because Strong' s. prior

convictions were              for    crimes   of   dishonesty. A jury would be less likely to consider her prior

convictions as evidence of guilt or propensity to commit the violent crimes at issue here. Counsel

likely believed that the jury would use the prior convictions for their obvious and permissible

purposes, i.e., to evaluate Strong' s credibility and honesty.

              Because defense counsel' s failure to request a limiting instruction on the use of the prior

convictions was a legitimate trial tactic to avoid emphasizing Strong' s prior convictions, Strong' s

ineffective assistance of counsel claim fails.

II.           OPINION TESTIMONY


              A.           Fair and Impartial Trial


              Strong argues that she was denied a fair and impartial trial because of Deputy Nelson' s

opinion        testimony. We do not decide this issue because Strong did not object to the allegedly

improper testimony below and she has not shown that the alleged error is a manifest error affecting

a constitutional right that may be raised for the first time on appeal.

              A party generally            waives   the   right   to   appeal   an error absent an objection at       trial.   RAP


2. 5(   a);   State   v.   Kalebaugh, No. 89971- 1, 2015 WL 4136540,                    at *   2 ( Wash.   July   9, 2015).    But a




                                                                        N.
46318 -1 - II




party may raise an alleged error for the first time on appeal if it constitutes a manifest error

affecting   a   constitutional        right.    RAP 2. 5(      a)(   3).   This exception strikes a balance between


remedying errors- that result in serious injustice to an accused and maintaining the value of

objections and preserving the opportunity for judges to correct errors as they happen. Kalebaugh,

2015 WL 4136540, at * 2.


         At issue is Deputy Nelson' s response to the prosecutor asking him why he instructed the

school secretary to contact Strong and to advise her that she could pick up her son during the

lockdown if she described the vehicle she would be driving and identified any people who would

be .accompanying her to the             school.      Deputy    Nelson      answered, "   So I would know what she was


driving, who might be with her as I contacted her. At this point in time I.believed she committed

this crime."     RP    at   57 (   emphasis added).         Strong did not object to this testimony but now argues

that the last sentence' is impermissible opinion testimony.

         We assume without deciding that Strong satisfies the first part of the RAP 2. 5( a)( 3) test

because impermissible opinion testimony regarding a defendant' s guilt violates the defendant' s

constitutional right to a jury trial, which includes independent determination of the facts by the

jury. State v. Kirkman, 159 Wn.2d 918, 927, 155 P. 3d 125 ( 2007).

         Strong does not satisfy the second part of the test because she does not.show that the alleged
error was manifest.          Manifestness       requires a     showing      of actual prejudice.   Kalebaugh, 2015 WL


4136540,     at *   3; Kirkman, 159 Wn.2d             at   935. "` To demonstrate actual prejudice, there must be a


 plausible      showing      by     the [   appellant]     that the asserted error had practical and identifiable

consequences        in the trial    of the case."'    Kalebaugh, 2015 WL 4136540, at * 3 ( alteration in original)


 internal   quotation marks omitted) (               State v. O' Hara, 167 Wn.2d 91, 99, 217 P. 3d 756 ( 2009)).

  Next, `to determine whether an error is practical and identifiable, the appellate court must place




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itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that

time, the   court could        have   corrected    the   error."'    Kalebaugh, 2015 WL 4136540,            at *   3 ( quoting

O' Hara, 167 Wn.2d at 100).


         In the context of an admission of witness opinion testimony on an ultimate fact, without

objection, manifest error requires a nearly explicit statement by the witness on an ultimate issue of

fact. Kirkman, 159 Wn.2d              at   936.   The context of Deputy Nelson' s testimony demonstrates that

he was not expressing an opinion of Strong' s ultimate guilt. Rather, it constituted his explanation

for his actions based on his perception of Strong' s guilt at the early stage of the investigation.

Deputy Nelson had just listened to the threatening message Strong left on the school' s voicemail

system.     None     of   this    evidence was     in dispute.           The true disputed evidence involved Strong' s

mental state and whether she knowingly threatened the school staff or even meant to leave the

message.
                The officer' s testimony did not bear on this disputed element.7 The context of the
Deputy Nelson' s testimony shows that his opinion had little or no bearing on.the ultimate issue of

Strong' s guilt.

            Important to the determination of whether opinion testimony prejudices the defendant is

whether     the   jury   was     properly instructed."      State v. Montgomery, 163 Wn.2d 577, 595, 183 P. 3d

267 ( 2008).      In Kirkman, 159 Wn.2d at 937, and Montgomery, 163 Wn.2d at 595- 96, our Supreme

Court concluded that despite improper opinion testimony on the credibility of witnesses and on

the disputed element of the defendant' s intent, there was no prejudice because the trial court




7 In making this analysis, we are aware that the State is required to prove all of the elements of the
crime   beyond      a reasonable       doubt. We     are not    relieving the State     of   this burden.   We are merely
pointing out the crux of Strong' s argument at trial and the issue litigated in earnest by the parties.


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46318 -1 - II




properly instructed the jury that it was the sole judge of witnesses' credibility and was not bound

by expert witness opinions. ,

             Here, similar to Kirkman and Montgomery, the trial court instructed the jurors as follows:

                     You are the sole judges of the credibility of each witness. You are also the
             sole judges of the value or weight to be given to the testimony of each witness. In
             considering     a witness'.s     testimony,   you   may   consider .      the opportunity of the
             witness to observe or know the things he or she testifies about.


Clerk'   s   Papers    at   51.     There is no evidence that Deputy Nelson' s opinion testimony unfairly

influenced the jury, and absent evidence to the contrary, we presume that the jury followed the

court' s instructions. Montgomery, 163 Wn.2d at 596.

             Because Strong has not shown that the alleged error was manifest, she may not raise it for .

the first time on appeal.


             B.       Ineffective Assistance        of   Counsel— Failure to Object


             Strong argues that she did not receive effective assistance of counsel because her lawyer

failed to object to Deputy Nelson' s opinion about Strong' s guilt. We disagree.

             As noted previously, a defendant claiming ineffective assistance of counsel has the burden

to   establish      deficiency      and prejudice.    Strickland, 466 U. S. at 700; Grier, 171 Wn.2d at 32- 33.


Deficient representation prejudices a defendant if there is a " reasonable probability that, but for

counsel' s        deficient [ representation], the outcome of the proceedings would have been different."


Kyllo, 166 Wn.2d            at    862. "   Only in egregious circumstances, on testimony central to the State' s

case, will        the failure to     object constitute    incompetence    of counsel   justifying   reversal."   State v.


Neidigh, 78 Wn.             App.     71,   77, 895 P. 2d 423 ( 1995).       Because Strong bases her ineffective

assistance of counsel claim on her lawyer' s failure to object, she must show that the objection


would have likely succeeded. State v. Gerdts, 136 Wn. App. 720, 727, 150 P. 3d 627 ( 2007).




                                                                 11
46318 -1 - II




                Generally, no witness may offer testimony in the form of an opinion regarding the guilt

or veracity of the defendant; such testimony is unfairly prejudicial to the defendant because it

invad[ es] the      exclusive province of           the [ jury]."'   State v. King, 167 Wn.2d 324, 331, 219 P. 3d 642

 2009) ( alterations in         original) (    quoting State v. Demery, 144 Wn.2d 753, 759, 30 P. 3d 1278 ( 2001)

 internal   quotations omitted)). "             A law enforcement officer' s opinion testimony may be especially

prejudicial      because the ` officer' s testimony             often carries a special aura of         reliability."'   King, 167

Wn. 2d     at    331 ( quoting Kirkman, 159 Wn.2d                    at   928). "   To determine whether statements are


impermissible           opinion   testimony,     a court will consider        the circumstances of a        case,   including, `( 1)

the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges,

 4) the type       of   defense,   and (   5) the   other evidence        before the trier   of   fact."'   King, 167 Wn.2d at

332- 33 ( quoting Kirkman, 159 Wn.2d                   at    928) ( internal quotations. omitted).


           Here, as discussed above, the context of Deputy Nelson' s testimony demonstrates that he

did not express an opinion of Strong' s ultimate guilt. Rather he explained his actions based on his

perception of Strong' s guilt at the early stage of the investigation, after he heard the message

Strong left on the school' s voicemail system but before he heard her explanations for the recording.

Deputy Nelson' s testimony could easily be understood to apply only to that particular moment.

           The     case   hinged    on   Strong' s    mental state at       the time   she   left the   message.      During trial,

Strong     admitted       to   leaving   the   message.       It is important to .keep in mind that Strong testified she

did not intend to leave the message and that she did not mean any harm to the school staff or

anybody         else.   The officer' s testimony did not bear on the disputed element of Strong' s mental

state. The context of the Deputy Nelson' s testimony shows that his opinion had little or no bearing

on   the   ultimate       issue   of   Strong' s    guilt.    Because Deputy Nelson did not purport to weigh the

evidence or evaluate Strong' s credibility on any truly disputed issue, his testimony did not invade



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46318 -1 - II



the    province of    the   jury;      and   therefore, it   was not      improper   opinion   testimony. Strong has not

demonstrated that          an       objection would      have      succeeded.   Accordingly, her claim for ineffective

assistance of counsel fails.


III.      CUMULATIVE ERROR


          Finally, Strong argues that we should reverse her convictions under the cumulative error

doctrine.    Application of the cumulative error doctrine " is limited to instances when there have


been several trial errors that standing alone may not be sufficient to justify reversal but when

combined        may   deny      a   defendant   a   fair trial."    State v. Greiff, 141 Wn.2d 910, 929, 10 P. 3d 390

 2000).    Because no errors occurred, Strong' s cumulative error claim is without merit.

          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 in accordance with RCW 2. 06.040,

it is so ordered.




                                                                                 Melnick, J.


We concur:




          Johanson, C. J. '




          P/.    gen, J.




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