                                                                           FILED
                                                                       NOVEMBER 6, 2018
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                           )
                                               )         No. 35587-0-III
                     Respondent,               )
                                               )
       v.                                      )
                                               )
KYLE J. LIGHT,                                 )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       KORSMO, J. — Kyle Light appeals from his convictions for first degree burglary of

his brother’s apartment, theft of a firearm, and second degree unlawful possession of a

firearm, primarily contending that his attorney provided ineffective assistance of counsel

by failing to object to the admission of his brother’s written statements to the police.

Concluding that he has not established prejudice, we affirm the convictions, but remand

for further consideration of his legal financial obligations (LFOs).



                                          FACTS

       Ryan Light shared an apartment in Asotin with a roommate during the spring of

2016. He allowed his brother Kyle to stay at the apartment on occasion. Kyle did not
No. 35587-0-III
State v. Light


have a key and was allowed in the apartment only when Ryan let him in. Kyle Light also

was one of the few people who knew that Ryan Light owned a handgun and where it was

stored.

          Ryan Light returned to his apartment on March 22, 2016, to find a window broken

and his pistol missing. He reported the crime to the police and named his brother as the

likely suspect. He later received a phone call from his brother, and a text reportedly sent

by his brother, inquiring about the crime and why Kyle was the suspect; the text message

indicated that Kyle had only borrowed the gun for protection and would return it. On

April 4, 2016, Ryan returned home from work and discovered a plastic bag containing his

gun hanging on the handle of his front door. He prepared written statements for the

police on both occasions.

          The prosecutor filed the noted charges and the case proceeded to jury trial. Ryan

Light testified consistently with the previously described statements, although

acknowledging that his memory was not as good as when he first reported the events. He

admitted telling the officer that he suspected Kyle had taken the gun and he posted his

suspicions about Kyle on his Facebook page. During the direct examination, the

prosecutor offered into evidence both of his written statements to the police; they were

admitted without objection from the defense. Report of Proceedings (RP) at 29, 33.

Neither of those statements are in the record of this appeal. However, on cross-



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No. 35587-0-III
State v. Light


examination Ryan Light testified that he did not know whether it was his brother he had

talked to or received the text message from.

       The prosecutor next put the investigating officer, Donna Manchester, on the stand.

She relayed the information that she had received from Ryan Light on both occasions,

including his statements that his brother had called and texted him. According to Ryan,

Kyle was using the gun for protection and would return it. RP at 57, 85-86.

       Kyle Light testified in his own defense. The trial court had previously granted a

motion in limine precluding the defense from presenting alibi evidence since the defense

was not raised in the pretrial pleadings. Defense counsel advised the court he was not

pursuing an alibi defense since no one knew at what time the burglary occurred. RP at

66. When Kyle Light claimed to have been in Yakima on the day of the crime, the court

struck the testimony on the objection of the prosecutor.

       The jury convicted the defendant as charged. At sentencing, the court commented

that Ryan Light “did everything but perjure himself on the stand.” RP at 150. The court

imposed standard range sentences and also imposed LFOs totaling in excess of $3,000.

       Mr. Light appealed to this court. A panel considered the case without hearing

argument.




                                               3
No. 35587-0-III
State v. Light


                                        ANALYSIS

       The sole issue presented in this appeal is a contention that defense counsel, at both

trial and at sentencing, performed ineffectively.1

       This court reviews claims of ineffective assistance under well recognized

standards. Counsel’s failure to live up to the standards of the profession will require a

new trial when the client has been prejudiced by counsel’s failure. State v. McFarland,

127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). 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, 104 S.

Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts apply a two-prong test:

whether or not (1) counsel’s performance failed to meet a standard of reasonableness and

(2) actual prejudice resulted from counsel’s failures. Id. at 690-692. When a claim can be

resolved on one ground, a reviewing court need not consider both Strickland prongs. Id.

at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).




       1
         Mr. Light filed a pro se statement of additional grounds in which he argued that
his attorney was not a licensed attorney in Washington. Without more explanation, we
are unable to consider his arguments. RAP 10.10(c). Although not listed on the
Washington State Bar Association’s website, we note that his attorney is listed as a
longtime member of the Idaho Bar and that it is permissible for attorneys from other
states to practice in Washington with permission of the trial court.

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No. 35587-0-III
State v. Light


       Here, we can resolve the ineffective assistance at trial argument on the basis of the

second Strickland prong and need not discuss whether counsel performed defectively.2

Kyle Light argues that his counsel erred by failing to seek a limiting instruction that

might have limited the statements solely to their impeachment value. If counsel erred in

that regard, the error was not prejudicial. On this record, it appears that the only changes

in Ryan Light’s testimony concerned whether his brother had called and texted him prior

to the return of the gun.

       This information in the written statements, assuming that it contradicted the

testimony elicited by cross-examination, was already before the jury as substantive

evidence due to Ryan Light’s testimony on direct examination as well as to the testimony

of Officer Manchester. The unnecessary admission of cumulative evidence is not

reversible error. State v. Todd, 78 Wn.2d 362, 372, 474 P.2d 542 (1970).




       2
         Appellant’s failure to designate the two exhibits on appeal makes it difficult to
establish that trial counsel erred. If the prosecutor offered the prior statements solely to
preemptively impeach his own witness, then defense counsel would have performed
deficiently by failing to seek a limiting instruction. ER 105; ER 613. If the statements
were offered as a recorded recollection, as it appears the second statement may have
been, they should have been read into evidence rather than submitted as exhibits. ER
803(a)(5). If they were admitted as prior statements made under oath, then they were not
hearsay at all. ER 801(d)(1)(i); State v. Smith, 97 Wn.2d 856, 651 P.2d 207 (1982). The
statement located at CP 15 may well qualify under that standard if it is the same
statement that became Exhibit 9. On this record, we cannot tell and therefore do not
further address the first Strickland prong.

                                              5
No. 35587-0-III
State v. Light


       The information, assuming it is what Mr. Light claims, was not that significant in

light of the fact that the same evidence was properly before the jury from the trial

testimony. Kyle Light’s testimony also established that he suspected his brother due to

the fact that few people knew he had the gun and where it was stored, and he publicly

posted that suspicion on Facebook. Confirmation of this information in the exhibits, if

that is what happened, simply was not significantly prejudicial in light of all of the

evidence.

       Mr. Light has not established that his counsel committed prejudicial error in

relation to the admission of his brother’s two written statements. He also contends that

his trial attorney erred by not relying on an alibi defense. Defense counsel explained that

decision to the court. RP at 66. Counsel made the tactical decision to eschew the weak

and uncertain alibi theory. Under Strickland, this was not deficient performance.

       Finally, Mr. Light argues that his counsel erred by not challenging the court’s

inquiry into his ability to pay discretionary LFOs. We need not decide whether counsel

erred because we deem this claim sufficient to preserve the issue on appeal and entitles

him to the benefit of the recent decision in State v. Ramirez, --- Wn.2d ---, 426 P.3d 714

(2018).

       After the appeal was filed, the Washington Supreme Court released Ramirez.

Among its holdings, the court concluded that the 2018 amendments governing LFO

obligations were retroactive to any case still pending on direct appeal. Id. at 722. The

                                              6
No. 35587-0-III
State v. Light


court also expanded upon the necessary questions the trial court needed to ask in order to

afford a proper understanding of the defendant's ability to pay discretionary LFOs. Id. at

722-723.

       Here, we agree that after Ramirez, the trial court's inquiry was insufficient and

conclude that Mr. Light is entitled to a new hearing concerning the LFOs. We reverse the

LFO ruling and remand for a limited hearing concerning Mr. Light's financial

obligations.

       Affirmed in part and reversed in part.

       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.




WE CONCUR:




      Fearing, .



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