                                                                                                        i CUF,
                                                                                                                     FILED
                                                                                                                 _
                                                                                                                OF APPEAI f;     q


                                                                                                             DIVISION II.
                                                                                                    2014 AUG 26         Ail'
                                                                                                                               II: 36




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

STATE OF WASHINGTON,                                                                No. 43896 -8 - II


                                            Respondent,                       UNPUBLISHED OPINION


              v.



KEITH HORNADAY,


                                            Appellant.


              BJORGEN, A.C. J. —        A jury found Keith Hornaday guilty of second degree assault, witness

tampering, and six counts of violation of a no- contact order, based on conduct involving his

intimate partner, Yvonne Joy Newsted -Klepper. Hornaday appeals his convictions and sentence,

arguing that ( 1) the trial court' s instruction defining recklessness, to which Hornaday did not

object, relieved       the State   of   its burden to    prove an essential element of second     degree   assault; (   2)


defense counsel provided ineffective assistance by failing to object to the recklessness jury

instruction;       and (   3) despite   a   Brooks1 notation on the judgment and sentence, the trial court erred


by imposing a term of community custody on one of the no- contact order violation counts that,




1
    In   re   Restraint of Brooks, 166 Wn.2d 664, 667           n. 1,   211 P. 3d 1023 ( 2009).
No. 43896 -8 -I1




combined with the term of confinement, exceeded the statutory maximum for that crime.

Hornaday     also     filed    a   statement     of     additional     grounds   for   review (   SAG), asserting that


prosecutorial misconduct deprived him of a fair trial and that sufficient evidence does not


support his assault conviction.


          Based on the Supreme Court' s recent dispositive opinion in State v. Johnson, 180 Wn. 2d


295, 325 P. 3d 135 ( 2014), we hold that the recklessness instruction was not erroneous and that


defense   counsel' s      failure to   object   to it   was not   deficient.   Holding also that the claims raised in

the   SAG have       no    merit, we    affirm    Hornaday'       s   convictions.   Because the Brooks notation no


longer   satisfies   the   requirements of       the    Sentencing     Reform Act ( SRA), chapter 9. 94A RCW, we


remand for correction of the judgment and sentence so that the combined terms of confinement


and community custody on the final no- contact order violation conviction do not exceed the

statutory maximum of 60 months.

                                                            FACTS


          The State charged Hornaday with second degree assault, witness tampering, and six

counts of violation of a no- contact order, alleging that he attacked Newsted -Klepper in an alley

and subsequently communicated with her in an effort to persuade her not to testify against him.

The State based the assault charge on both substantial bodily harm and strangulation, which are

alternative means under the assault statute.


          At trial, Newsted- Klepper described herself as Hornaday' s wife, but admitted they had

not legally married. Newsted -Klepper testified that she and Hornaday got in a fight in October




                                                                  2
No. 43896 -8 -II




2010, at the apartment where she resided, and that she had struck Hornaday first, injuring him.

After the fight, Hornaday left.

       Newsted -Klepper testified that later that evening someone attacked her from behind as

she walked through an   alley   near   her   building. She could not clearly remember the incident at

trial, but recalled that her attacker choked and punched her, rendering her unconscious and

breaking her glasses. Newsted -Klepper remembered seeing Hornaday in the alley at the time of

the assault, but could not specifically identify him as the attacker. However, she did not recall

seeing anyone else in the alley during the relevant time. After regaining consciousness,

Newsted -
        Klepper went to her brother' s apartment and was taken to the emergency room.

       Perry Ockerman, the treating physician, testified that Newsted -Klepper had lost a tooth

and sustained significant bruising, swelling, and abrasions in several places on her face, as well

as bruising on her neck, tongue, and limbs. Dr. Ockerman observed some broken blood vessels

on Newsted- Klepper' s neck, consistent with strangulation, but no other injury indicative of

strangulation. Dr. Ockerman testified that Newsted -
                                                   Klepper had described her attacker as a


 former significant other" or " ex- boyfriend" with whom she had broken up some months earlier.

3 Report of Proceedings ( RP) at 299, 308. Bremerton police officer Bryan Hall photographed


Newsted- Klepper' s injuries at the hospital, describing them as scratches and bruising around one

eye, as well as bruises and abrasions to the face, neck, and limbs. Hall testified that he arrested


Hornaday the following day.

        The trial court entered a pretrial domestic violence no- contact order on December 1,


2011, prohibiting Hornaday from contacting Newsted- Klepper. At trial, the State presented



                                                        3
No. 43896 -8 -II




extensive evidence that Hornaday nevertheless communicated with Newsted -
                                                                        Klepper and

encouraged her not to testify against him, including recordings of calls to Newsted- Klepper' s

telephone from the j ail unit where Hornaday awaited trial.

         The trial court also admitted recordings of calls to certain other people placed using the

personal identification number that jail staff had assigned to Hornaday. Hornaday discussed his

case in some of the calls, but never accused Newsted -
                                                     Klepper of lying or denied having attacked

her.


         The defense attacked Newsted- Klepper' s credibility, pointing out inconsistencies in her

various statements and eliciting testimony that she regularly used methamphetamine, sometimes

used the threat ofjail to manipulate Hornaday, and had convictions for crimes of dishonesty.

Hornaday presented evidence in support of the defense theory that Erik McShepard, with whom

Newsted -Klepper had been intimately involved, actually assaulted Newsted -Klepper and that she

accused Hornaday instead because she wished to punish Hornaday for deceit and infidelity.

Hornaday also elicited testimony that, although Newsted- Klepper initially identified her attacker

as an " ex- boyfriend,"   she thought of Hornaday as her husband. VRP at 178 -79, 182, 308.

         The trial court instructed the jury on the definition of "recklessness" as follows:

                 A person is reckless or acts recklessly when he or she knows of and
         disregards a substantial risk that a wrongful act may occur and this disregard is a
         gross deviation from conduct that a reasonable person would exercise in the same
         situation.




Clerk' s Papers ( CP) at 92. Hornaday did not object to the instruction. In discussing recklessness

during   closing   argument,   the   prosecutor specified   that " the State has to   prove ...   that the injuries


were caused    recklessly." VRP at 499.



                                                       4
No. 43896 -8 -II




         The trial court also instructed the jurors that " the State relie[ d] upon evidence regarding a

single   incident constituting the           alleged    crime"     for the     assault   charge,     and that they must

unanimously agree that the State had proved that specific incident in order to convict. CP at 94.

The State made clear in closing argument that it relied on the attack that occurred in the alley,

not the prior incident inside the apartment. Nonetheless, the jury submitted a written question to

the court during deliberations, asking if "the location of the specific incident, Happening in the

House    or   Alley, [ was]   Germaine [ sic]    ?"   CP at 110. The court responded that



          y] es, the location     of   the   specific   incident   of   the   alleged assault   is   germane.   To

         convict the defendant of Assault in the Second Degree, the jury must unanimously
         agree that the state has proved beyond a reasonable doubt that the assault occurred
         in the alley.
CPat110.


         The jury found Hornaday guilty of all charges. The special verdict form for the assault

charge showed that the jury unanimously agreed that the State had met its burden by proving

substantial bodily harm beyond a reasonable doubt, but did not unanimously agree as to the

alternative means of strangulation.




         The sentencing court imposed an exceptional sentence based on a finding that, because

Hornaday' s prior convictions yielded an offender score higher than nine, some offenses would

otherwise go unpunished. The court sentenced Hornaday to 73 months' confinement and 18

months' community custody on the assault conviction, to run concurrently with the witness

tampering and five of the no- contact order violation sentences, but, as an exceptional sentence,

ordered the final no- contact order violation sentence to run consecutively to the other sentences.

This consecutive sentence added 60 months' confinement and 12 months' community custody to


                                                              5
No. 43896 -8 -II




Hornaday' s total sentence. The court noted on the judgment and sentence that the combination

of confinement and community custody should not exceed the statutory maximum.

         Hornaday timely appeals.

                                                 ANALYSIS


             Because Hornaday' s challenge to the sufficiency of the evidence, if successful, would

require dismissal of the assault charge with prejudice, we address that claim first. The analysis

then turns to the recklessness instruction and the related ineffective assistance claim, followed by

the prosecutorial misconduct claim. Finally we address Hornaday' s claim that the judgment and

sentence does not conform to the requirements of the SRA.

                                       I. SUFFICIENCY OF THE EVIDENCE


             Hornaday contends in his SAG that his assault conviction rests on insufficient evidence

because the State established only his presence in the alley at the time of the attack. We

disagree.


             In evaluating the sufficiency of the evidence, we review the evidence in the light most

favorable to the State. State     v.   Ehrhardt, 167 Wn.   App.   934, 943, 276 P. 3d 332 ( 2012) ( citing


State   v.   Drum, 168 Wn.2d 23, 34, 225 P. 3d 237 ( 2010)).       We determine "` whether any rational


fact finder could have found the essential elements of the crime beyond a reasonable doubt. "'

Drum, 168 Wn.2d at 34 -35 ( quoting State v. Wentz, 149 Wn.2d 342, 347, 68 P. 3d 282 ( 2003)).

An appellant who claims that insufficient evidence supports his conviction " admits the truth of

the State'     s evidence and all reasonable   inferences therefrom."    Ehrhardt, 167 Wn. App. at 943

 citing Drum, 168 Wn.2d at 35).



                                                       6
No. 43896 -8 -II




         Where '    the inferences and underlying evidence are strong enough to permit a rational

fact finder to find guilt beyond a reasonable doubt, a conviction may be properly based on

pyramiding inferences. "' State v. Bencivenga, 137 Wn.2d 703, 711, 974 P. 2d 832 ( 1999)


 quoting 1 CLIFFORD S. FISHMAN, JONES                  ON   EVIDENCE: CIVIL      AND   CRIMINAL § 5. 17, at 450 ( 7th


ed.   1992)) ( internal   quotation marks omitted).           Inferences drawn from circumstantial evidence

 must    be   reasonable and cannot       be based      on speculation."       State v. Vasquez, 178 Wn.2d 1, 16,


309 P. 3d 318 ( 2013) (     citing Jackson v. Virginia, 443 U. S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d

560 ( 1979)).     Finally, " we defer to       the   fact finder on issues     of witness   credibility." Drum, 168


Wn.2d at 35.


          Hornaday does not contend that the State failed to prove any particular element of second

degree assault, but instead argues that the State failed to present sufficient evidence identifying

him as the assailant. On the question of identity, the jury heard evidence that ( 1) Hornaday and

Newsted- Klepper had fought          earlier      in the evening; ( 2)      Hornaday was the only person Newsted-

Klepper saw in the alley at the time of the assault; and ( 3) Hornaday discussed the incident with

a number of people, including Newsted -
                                      Klepper, under circumstances where an innocent person
                                           2
would    likely deny the     accusation,       but did not deny his involvement. From this evidence, a




2 A call Hornaday apparently placed to one Stacie Beach, the relevant portion of which the trial
court admitted into evidence, included the following exchange:
       Hornaday:       I got a - I got a - a DV with you know, with the wife and :. .
          Beach:             She probably deserved -                hell,   she probably deserved the shit.
          That' s all I' m saying.
          Hornaday:         Okay. See       the   thing is   though - now, listen though. The prosecutor
          can   listen in   on   these   conversations so      I don' t wanna make it sound like - like I
          did it.
          Beach: I know. I didn' t say          you    did it. I — m saying ...
                                                                  I'                   that bitch was beat up.

                                                                7
No. 43896 -8 -II




rational fact finder could have found beyond a reasonable doubt that it was Hornaday who

attacked Newsted -Klepper in the alley. Thus, Hornaday' s challenge to the sufficiency of the

evidence fails.


                          II. THE TRIAL COURT' S RECKLESSNESS INSTRUCTION


       Hornaday contends that the trial court' s instruction defining " recklessness" relieved the

State of its burden to    prove an essential element of                the   charged crime    by   stating that "[   a] person




is reckless or acts recklessly when he or she knows of and disregards a substantial risk that a

wrongful act     may   occur."    Br.   of   Appellant   at   7.   This phrasing was flawed, Hornaday argues,

because it required only the risk that some undefined wrongful act may occur, instead of the risk

of substantial   bodily   harm,   pertinent     to   second    degree        assault.   The State conceded3 the error in


the instruction, but maintains that we should affirm because Hornaday did not object to the

instruction or, in the alternative, because the error was harmless beyond a reasonable doubt.

        In Johnson, 180 Wn.2d at 304 -08, our Supreme Court addressed a nearly identical

instruction defining recklessness with the same reference to " a wrongful act" challenged here by

Hornaday.   Johnson, like        Hornaday, " argue[ d] that the general instruction regarding recklessness

lowered the State' s burden of proof because the phrase ` a wrongful act' was used instead of the




        Hornaday:          Yeah. Yeah. I know.
        Beach: She probably did it to herself.
        Hornaday:          Or -    or she went to a spot looking for me. Yeah. Yeah.
CP at 28 -29.


3 The State conceded the error based on our decision in State v. Harris, 164 Wn. App. 377, 263
P. 3d 1276 ( 2011). The parties submitted their briefing prior to our Supreme Court' s decision in
Johnson, 180 Wn.2d 295, which overruled Harris on the relevant point, as discussed below.


                                                                   8
No. 43896 -8 -II




more charge -specific            language ` substantial           bodily harm. "'            Johnson, 180 Wn.2d at 305.


Rejecting this argument, the court held that " the generic instruction defining `reckless' was

sufficient without the charge -specific language given that the ` to convict' instruction included

                                                                                4
the   proper      language."       Johnson, 180 Wn.2d               at   305.


            The " to convict" instruction given to Hornaday' s jury stated:

                      To convict the defendant of the crime of assault in the second degree as
            charged in Count I, each of the following two elements of the crime must be
            proved beyond a reasonable doubt:
             1)   That     on    or   about   October 30, 201                  1[    sic]   through October 31,    2011, the
            defendant:
                          a)    intentionally         assaulted     Yvonne             J.   Newsted- Klepper and thereby
            recklessly inflicted substantial bodily harm; or
                    b) assaulted Yvonne J. Newsted -Klepper by strangulation; and
             2) That this act occurred in the State of Washington.

CP    at   93.    This instruction contains the same charge -specific reference to " recklessly inflicted

substantial bodily harm" as did the " to convict" instruction in Johnson, 180 Wn.2d at 304 -05.

Consequently, under Johnson the instruction defining recklessness was not erroneous, and we

reject the State' s concession that it was.


                                          III. INEFFECTIVE ASSISTANCE OF COUNSEL


            To prevail on a claim of ineffective assistance of counsel, an appellant must show


             1)    that    defense     counsel' s        conduct         was        deficient, i. e.,   that it fell below an
            objective          standard   of reasonableness;               and (       2)   that the deficient performance
            resulted in                 that there is a reasonable possibility that, but for the
                                prejudice,    i.e.,
            deficient conduct, the outcome of the proceeding would have differed.



4
    See    also   Johnson, 180 Wn.2d            at    305 -07: "[    I] t is not error to use the generic definition of
    reckless' when the `to convict' instruction contains all of the essential elements, including the
charge -specific language for recklessness."



                                                                           9
No. 43896 -8 - II




State   v.   Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004) ( citing   State v. Thomas, 109

Wn.2d 222, 225 -26, 743 P. 2d 816 ( 1987) (     adopting the test from Strickland v. Washington, 466

U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984))).     The appellant overcomes the strong

presumption that counsel performed adequately only by showing that " no conceivable legitimate

tactic" explains the attorney' s conduct. Reichenbach, 153 Wn.2d at 130.

             As shown above, the trial court' s instruction on recklessness was not erroneous.

Therefore, defense counsel' s choices not to object to it and not to propose an alternative


instruction did not fall below an objective standard of reasonableness. With that, Hornaday' s

claim of ineffective assistance of counsel fails.


                                     IV. PROSECUTORIAL MISCONDUCT


             Hornaday appears to argue that the State improperly elicited testimony concerning the

prior fight inside the apartment and improperly commented on this evidence in closing.

Hornaday contends that prejudice is established by " the likelihood a rational trier of fact was

misled and swayed to form a finding of guilt, based upon tainted evidence of prior incident."

SAG at 13. Hornaday did not object to this evidence at trial.

             We will reverse a conviction due to prosecutorial misconduct only if the defendant

establishes that the conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d

667, 675, 257 P. 3d 551 ( 2011).      We examine the effect of a prosecutor' s improper conduct in

light of the full trial context: the evidence presented, the issues and arguments presented in the

case, and the instructions given to the jury. Monday, 171 Wn.2d 675( citing State v. McKenzie,

 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006)). It is improper for a prosecutor to present evidence to




                                                      10
No. 43896 -8 -II




the jury not properly admitted at trial. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 705-

06, 286 P. 3d 673 ( 2012).      A prosecutor may, however, argue that evidence does not support a

defense theory and present a fair response to defense counsel' s arguments. State v. Russell, 125

Wn.2d 24, 87, 882 P. 2d 747 ( 1994).


        A defendant establishes sufficient prejudice for reversal by showing a substantial

likelihood the misconduct affected the verdict. Monday, 171 Wn.2d at 675 ( citing State v. Yates,

161 Wn.2d 714, 774, 168 P. 3d 359 ( 2007)).            Furthermore, failure to timely object to a

prosecutor' s   improper     comment constitutes a waiver, unless            the remark     was "`   so flagrant and ill -


intentioned that     an   instruction   would not   have   cured   the   prejudice. "'   Glasmann, 175 Wn.2d at


704. Even clearly improper remarks do not require reversal " if they were invited or provoked by

defense counsel and are in reply to his or her acts and statements, unless the remarks are not a

pertinent   reply   or are so prejudicial   that   a curative    instruction   would     be ineffective." Russell,


125 Wn.2d at 86.


        Hornaday does not show prejudice, let alone incurable prejudice. The trial court properly

instructed the jury that the State relied on a single incident. As discussed above, the prosecutor

clearly explained to the jury that the State relied only on the events in the alley for the assault

charge. When the jurors submitted a question on the matter, the court again clearly and properly

explained the matter. Therefore, Hornaday' s claim of prosecutorial misconduct fails.

                           V. SENTENCE IN EXCESS OF THE STATUTORY MAXIMUM


        Hornaday argues that the sentencing court erred by imposing a term of community

custody on one of the no- contact order violation convictions that, combined with the term of


                                                            11
No. 43896 -8 -II




confinement, exceeded the statutory maximum for that crime. The State concedes the error, and

we accept the State' s concession.


            RCW 9. 94A. 701( 9),      enacted in 2009, provides that the community custody term

specified by RCW 9. 94A.701 " shall be reduced by the court whenever an offender' s standard

range term of confinement in combination with the term of community custody exceeds the

statutory        maximum   for the   crime."   Since this statute took effect, our Supreme Court has held

             Brooks5

that the "              notation,"   used by the trial court here, no longer complies with the SRA' s

requirement. State v. Boyd, 174 Wn.2d 470, 472, 275 P. 3d 321 ( 2012).


            Hornaday received the statutory maximum of 60 months of confinement on the final no-

contact order violation conviction. The trial court nonetheless imposed an additional 12 months


of community custody on that conviction. The Brooks notation that the total could not exceed

the statutory maximum does not correct the error.

            The remedy is to " remand to the trial court to either amend the community custody term

or resentence [ Hornaday] on the [ no- contact] order violation conviction consistent with RCW

9. 94A. 701( 9)."      Boyd, 174 Wn.2d at 473.


                                                    CONCLUSION


            We affirm Hornaday' s convictions. We also remand to the trial court to correct the

judgment and sentence so that the combined terms of confinement and community custody for

5
    In In   re   Restraint of Brooks, 166 Wn.2d 664, 667        n.   1, 672 -73, 211 P. 3d 1023 ( 2009),   our

Supreme Court had rejected a claim that a sentence exceeded the statutory maximum, even
though the term of community custody combined with the term of confinement were longer than
the applicable maximum, because the trial court had noted on the judgment and sentence that
    t] he total of the term of incarceration and the term of community custody for each count[] .. .
shall not exceed the statutory maximum."

                                                           12
No. 43896 -8 -I1




the sentence on the final no- contact order violation conviction do not exceed the statutory

maximum of 60 months.


          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.




We concur:




HUNT,




LEE,, .




                                                   13
