IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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 STATE OF WASHINGTON,                          )         No. 74934-0-1             -_, ---1=
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                                               )        UNPUBLISHED OPINIONE cr)mr....,
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 LINDA RENAE CLARK,                            )                           ▪ ---sc3
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                     Appellant.                )         FILED: September 25, 2017


      APPELWICK, J. — Clark appeals her convictions for second degree burglary

and taking a pet animal. She claims that her attorney was ineffective for failing to

present a necessity defense or communicate her acceptance of a plea offer to the

State. Clark has failed to show that defense counsel's performance was deficient.

We affirm.

                                      FACTS

       Frank and Rebecca Scott owned two dogs: Ellie, a twelve year old German

wire terrier, and Zalo, a ten year old German shepherd. The dogs typically slept

in the Scotts' house but spent most of their day either in the Scotts' garage or the

fenced yard. The dogs wore collars and the Scotts stored their leads in the garage.

       In approximately February 2014, the Scotts hired Linda Clark, who owned

a dog-walking business, to walk the dogs. Clark was instructed to enter the

garage, put the leads on the dogs' collars, and walk them once a day.

       However, within a month or two, Clark began walking the dogs several times

a day of her own accord, sometimes late at night or in heavy rain. Clark also
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frequently let herself into the garage at all hours to check on the dogs and leave

notes regarding what she believed was proper care for them. In addition, Clark

replaced the dogs' collars with collars that had her own name and phone number

instead of the Scotts'.

       In May or June 2014, concerned by Clark's behavior, Frank told Clark that

her services were no longer necessary. Clark responded, "[1]f you take me away

from these dogs, you're going to regret it." The Scotts contacted the Skagit County

Sheriff's Office. Deputy Brad Holmes came to the Scotts' house and observed that

both dogs appeared to be in good health for their age and their living conditions

were appropriate. Deputy Holmes went to Clark's house and told her "that she

cannot go back to the residence for any reason or she could be arrested for

trespassing." Clark agreed that she would not go back to the Scotts' property. The

Scotts built a heavier fence to keep Clark from coming onto the property.

       However, on the morning of November 6, 2014, the Scotts noticed that Ellie

and Zalo were missing. The Scotts' fence had been cut and pieces of the fence

were found in the Scotts' garbage can. The dogs' leads were also missing. The

Scotts were particularly concerned because Zalo was required to take medication

and had not had his medication yet that morning.

       Sergeant Jennifer Sheahan-Lee located Clark walking around town and

asked if she had seen the dogs. Clark stated that she had last seen the dogs the

previous evening. She admitted that she had gone to the Scotts' property and

petted the dogs through the fence. A few hours later, Sergeant Sheahan-Lee saw

Clark walking a different dog, and approached her to tell her that Ellie and Zalo



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No. 74934-0-1/3


were missing. Clark denied having the dogs or knowing where they were. After

receiving a report that a local citizen had seen Clark with Ellie and Zalo that

morning, Sergeant Sheahan-Lee went to Clark's house. When Sergeant

Sheahan-Lee told Clark that Zalo had not had his medication that day, Clark then

admitted she had the dogs and turned them over Sergeant Sheahan-Lee.

Sergeant Sheahan-Lee also noted that both dogs did not appear to be neglected

or in need of any care.

       The State charged Clark with second degree burglary and taking a pet

animal.' Prior to trial, Clark notified the State of the possibility that she would raise

a necessity defense, on the grounds that she took the dogs because she believed

the Scotts were not taking good care of them. The trial court ruled that Clark could

request a necessity instruction if the evidence supported it.

       Clark did not testify. Regarding a necessity instruction, defense counsel

conceded it "would be a frivolous motion, frankly, at this point." Instead, defense

counsel argued that there was no evidence to show that Clark had entered the

Scotts' home and that the evidence showed it was more likely that the dogs

escaped and Clark rescued them. A jury convicted Clark as charged.

       Immediately after trial, Clark filed a pro se motion for a new trial, claiming

that she received ineffective assistance of counsel. In support of her motion, Clark

provided a 28 page document containing the names of potential witnesses that

she claimed would support a necessity defense, as well as a summary of their

potential testimony. Clark also provided several pages of e-mails exchanged


    1 The State also charged Clark with criminal trespass, which it dismissed
prior to trial.
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between her and defense counsel regarding the necessity defense and a plea offer

from the State. The trial Court appointed substitute counsel for the purpose of

briefing these claims. Substitute counsel raised three issues in the motion for a

new trial: (1) that defense counsel was ineffective for failing to raise a necessity

defense; (2) that defense counsel was ineffective for failing to "effectively

communicate" with Clark; and (3) that the trial court erred in prohibiting defense

counsel to use photographs during closing argument.

      At a hearing on the motion, Clark testified that she provided the list of

witnesses to defense counsel, but admitted she did not know if defense counsel

had contacted them. Substitute counsel provided an affidavit stating that she

reviewed defense counsel's case file and "[t]here was no indication in the file that

any of the witnesses that Ms. Clark provided to counsel were interviewed or

contacted in any way by defense counsel." Defense counsel did not testify.

      The trial court denied the motion. The trial court noted:

              There's been much focus placed on the witness list that was
      presented to [defense counsel] by Ms. Clark. Sure, you would have
      liked to see all of those probably talked to by [defense counsel] or his
      staff, but it seems like the whole focus on that was they would only
      provide character evidence, and generally that's not admissible in
      any event. And if it was going to go to the necessity defense, !didn't
      hear that, and the necessity defense wasn't going to be a viable one
      in any event, particularly since the decision not to testify, 1 think that
      -- by the defendant -- certainly precluded any -- any introduction of
      any sort of evidence relative to a necessity defense.

Clark appeals her conviction.




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                                   DISCUSSION

       Clark contends that defense counsel provided ineffective assistance in two

ways: (1) by failing to present a necessity defense and (2) by failing to

communicate her acceptance of a plea offer to the State.

       The Sixth Amendment to the United States Constitution guarantees the right

to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-

86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show ineffective assistance of

counsel, a defendant must demonstrate both that counsel's conduct was deficient

and that the deficient performance resulted in prejudice. State v. Nichols, 161

Wn.2d 1, 8, 162 P.3d 1122 (2007). To show that counsel's performance was

deficient, the defendant must establish that it fell below an objective standard of

reasonableness given the circumstances. State v. McFarland, 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). If counsel's conduct can be characterized as a

legitimate trial strategy or tactic, performance is not deficient. State v. Grier, 171

Wn.2d 17, 33, 246 P.3d 1260 (2011). To show that the deficient performance was

prejudicial, the defendant must show that there is a reasonable probability that but

for counsel's errors, the result of the proceeding would have been different.

McFarland, 127 Wn.2d at 334-35. Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim.

Strickland, 466 U.S. at 700. We engage in a strong presumption that counsel's

representation was effective. McFarland, 127 Wn.2d at 335.

       A trial court may grant a motion for a new trial if "substantial justice has not

been done," which can include ineffective assistance of counsel. CrR 7.5(8); State



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v. Dawkins, 71 Wn. App. 902, 906-07, 863 P.2d 124 (1993). A trial court's ruling

on a motion for a new trial is reviewed for an abuse of discretion. State v. Balisok,

123 Wn.2d 114, 117, 866 P.2d 631 (1994). A trial court abuses its discretion when

a decision is manifestly unreasonable, or exercised on untenable grounds, or for

untenable reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684,132 P.3d 115

(2006).

       We first address Clark's claim that defense counsel should have raised a

necessity defense. The Sixth Amendment right to counsel includes the right to

control one's defense, which encompasses the decision to present an affirmative

defense. State v. Coristine, 177 Wn.2d 370, 376, 300 P.3d 400 (2013). An

attorney's failure to recognize and raise an affirmative defense can fall below the

constitutional minimum for effective representation, but determining whether an

attorney was ineffective requires review of whether the record confirms a valid

strategic decision. Id. at 379.

       "Necessity" is a common law defense with limited application. State v.

Diana, 24 Wn. App. 908, 913-16, 604 P.2d 1312 (1979). "The necessity defense

is available to a defendant 'when the physical forces of nature or the pressure of

circumstances cause the accused to take unlawful action to avoid a harm which

social policy deems greater than the harm resulting from a violation of the law."

State v. Gallegos, 73 Wn. App. 644, 650, 871 P.2d 621 (1994) (quoting Diana, 24

Wn. App. at 913). In order to sustain a necessity defense, the defendant must

show by a preponderance of the evidence that "(1) he or she reasonably believed

the commission of the crime was necessary to avoid or minimize a harm, (2) the



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harm sought to be avoided was greater than the harm resulting from a violation of

the law, and (3) no legal alternative existed." Gallegos, 73 Wn. App. at 651.

       It is clear, based on the evidence presented at trial, that Clark was not

entitled to a necessity instruction. No witness testified that that the dogs were

suffering any harm. In fact, both Deputy Holmes and Sergeant Sheahan-Lee

testified that the dogs appeared to be in good health for their age and their living

conditions were suitable. And, there was no evidence that Clark had made a good

faith effort to first pursue legal alternatives, such as notifying animal control or local

animal welfare organizations.

       Clark contends that defense counsel was ineffective for failing to present

evidence to support a necessity defense, including her own testimony and the

testimony of the witnesses she provided him. We disagree.

       First, the record shows that defense counsel did, in fact, investigate the

possibility of a necessity defense. Approximately two months prior to trial, defense

counsel sent Clark a lengthy e-mail explaining why he did not believe a necessity

defense was a good strategy. Defense counsel stated:

       In my expert legal opinion, as a matter of law, the defense of
       necessity is not available under the facts of your case. Further, even
       if the defense were available, there is not sufficient evidence to raise
       it despite your anticipated testimony about the objective events
       preceding your taking the dogs. Your personal belief that the dogs
       needed to be rescued will not be sufficient considering the evidence
       the State has that the situation had been investigated by law
       enforcement.

It is clear that defense counsel weighed Clark's credibility against the credibility of

the investigating officers and determined that a necessity defense would not be

successful. And, none of Clark's proposed witnesses appear to have had any first-


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hand knowledge of the dogs' living conditions. The fact that Clark was ultimately

convicted does not render defense counsel's strategy unreasonable; "hindsight

has no place in an ineffective assistance analysis." Grier, 171 Wn.2d at 43.

       Defense counsel's strategy of general denial was reasonable for other

reasons. The record shows that Clark had freely admitted on several occasions

that she took the dogs from the Scotts' property. For example, when the Scotts

sought a civil order of protection regarding Clark, Clark filed a response stating

"The Scotts continually failed to provide Zalo and Ellie with proper identification up

and until the day I took them from their home on November 6" (Emphasis added.)

But, the deputy prosecutor mistakenly failed to offer this evidence. In light of the

lack of evidence supporting a necessity defense, it was a reasonable strategic

choice for defense counsel to take advantage of the State's error and argue that

the State had not presented evidence that Clark took the dogs.2

       We next address Clark's claim that defense counsel failed to communicate

her acceptance of the State's plea offer. The State argues that Clark did not raise

this issue in her motion for a new trial, and thus RAP 2.5(a) bars her argument as

unpreserved. But, "[a] claim of ineffective assistance of counsel is an issue of

constitutional magnitude that may be considered for the first time on appeal." State

v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). Nevertheless, the record

provided by Clark does not support her claim.



     2 In reply, Clark argues that, even if it were not a winning strategy, defense
counsel should have pursued a necessity defense because "a defense of necessity
could have provided the basis for positive sentencing consequences." This court
will not consider an issue raised for the first time in a reply brief. In re Pers.
Restraint of Peterson, 99 Wn. App. 673, 681, 995 P.2d 83 (2000).
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       On March 11, 2015, defense counsel sent Clark an e-mail containing a plea

offer from the State. The offer involved Clark pleading guilty to taking a pet and

criminal trespass and dismissing the burglary. The plea offer also included

community service, a no-contact order protecting the Scotts, a mental health

evaluation, and 24 months of supervised probation. Clark wrote back the same

day, stating:

       At first glance, I must decline the prosecutor's offer, see no reason
       for a counter offer because, in my opinion, she is being completely
       unreasonable, and proceed to trial. I have no problem with it being
       continued to August.

       If you have any inclination to advise me to accept, I would appreciate
       your input and counsel.

       On August 19, 2015, defense counsel sent Clark an e-mail in which he

outlined the strengths and weaknesses of her case. Defense counsel strongly

advised Clark to accept the State's plea offer:

       After conducting a thorough investigation and having complete
       researching the caselaw relevant to your case, in my expert legal
       opinion, you should take the State's plea bargain offer and minimize
       your exposure.



       Again, I suggest you seriously consider taking the State's plea
       bargain offer. Proceeding to trial on the facts of this case would be
       against my direct advice.

       Although, I believe your trial would be an interesting one and I do
       look forward to representing you if you choose to proceed that way.

       On September 16, 2015, Clark e-mailed defense counsel requesting that

he propose "a reasonable counter-offer" to the State's plea offer. Clark refused to




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agree to the no-contact order, mental health evaluation, or probation.

Approximately an hour later, Clark wrote a second e-mail stating:

      Actually, the fact that you now know Frank Scott Is an a**hole Is good
      enough for me. If you feel, based on what you now know, that the
      prosecutor's offer is fair then I will take it as offered. If, however,
      based on what you now know, you do not believe it fair then I propose
      what I sent below.
(Emphasis added.)

      On October 5, 2015, defense counsel informed Clark that the deputy

prosecutor "is holding firm on her offer" and that the offer would expire two days

later. On October 6, 2015, Clark sent defense counsel an e-mail stating:

      Also, I want to remind you I am NOT afraid to go to trial on this if they
      remain unreasonable. . . . [M]aybe we need to leave it up to a jury for
      my punishment.

And the following day, on October 7, 2015, Clark wrote:

      . . . I truly do not want to make your job more difficult, but after giving
      it a great amount of thought I cannot agree to an extension of the
      current restraining order. I have lived in fear of being arrested on a
      daily basis and am unwilling to continue living in this constant
      torment. I would rather go to jail for three months. It would be less
      stressful and traumatic.



      I am afraid this must also extend to the mental health evaluation and
      the probation.

      Do what you feel is best. But I can't agree to these terms.

Defense counsel responded:

      Bearing in mind also that if you're convicted, the judge will probably
      put a no contact order in place anyway. But, who knows what a jury
      might say on these facts?

      I agree with you on the no contact order and mental health stuff
      though. I don't feel the facts of your case support those necessarily.


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No. 74934-0-1/11

        If a person is going to plead guilty to something, it should be a really
        good deal.

        Clark argues that the September 16 e-mail in which she told defense

counsel "I will take it as offered" constituted acceptance of the plea offer. However,

Clark's statement was not an unconditional acceptance of the plea. Instead, Clark

told defense counsel she would agree to the plea offer if defense counsel felt "that

the prosecutor's offer is fair." But, Clark later explicitly refused to agree to portions

of the plea offer, and said she would "rather go to jail." Because Clark did not

accept the State's plea offer, defense counsel was not ineffective.3

        We affirm.




    Clark's pro se statement of additional grounds, which raises the same
    3
necessity defense claim raised by appellate counsel, is without merit.
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