                                                                                 FILED
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                                                                            OURy OF ppf
                                                                            T ,     PPEALS         (
                                                                      2013 AUG -6 AM 9: 1

                                                                      STATE OF.ASHINGTON
                                                                              W
                                                                      SY-..
    IN THE COURT OF APPEALS OF THE STATE OF WA                                         GTON


                                         DIVISION II

STATE OF WASHINGTON,                                                No. 43127 1 II
                                                                              - -


                              Respondent,

       V.




TIMOTHY PAUL WHITTLES,                                       UNPUBLISHED OPINION


                              I

            BRINTNALL J. —
       QUINN-                         A jury found Timothy P. Whittles guilty of first degree

malicious mischief     domestic violence. The trial court sentenced Whittles to seven months


confinement and imposed legal financial obligations including a $ 00 contribution to the Kitsap
                                                                1

County Expert Witness Fund and a $ 00 contribution to the Kitsap County Special Assault Unit.
              :                  5

Whittles appeals, arguing that (1)there was insufficient evidence to support the jury's verdict,

2) ineffective assistance ofcounsel; andthe trial court by imposing - -
 received      -

legal financial obligations unrelated to Whittles's crime. The State properly concedes that the

trial court erred by imposing legal financial obligations that are not authorized by statute.

Whittles's other arguments fail. Accordingly, we affirm Whittles's conviction and remand to the

trial court to correct the judgment and sentence by striking the improper legal financial

obligations.

                                              FACTS


       In September 2011, Whittles and Susan Christopher had been dating for approximately

six months.    Christopher lived   at 2412 Seabeck   Holly Road   Northwest in   Kitsap County.   On


                                     and Whittles had been   arguing throughout the evening.      At
September 20, 2011, Christopher
No. 43127 1 II
          - -



approximately      9   PM    Christopher    left her house to visit her sister.    Whittles called Christopher

several times and demanded that she return to the Seabeck house.                      At the end of their last


conversation, Whittles told Christopher the relationship was over.

        Christopher did not want to go home while Whittles was at the house so she decided to

wait in    a   neighbor's driveway until           she   saw    Whittles leave.    Whittles left the house in


Christopher's     truck.       When Whittles saw Christopher's car, he tried to block her in her

neighbor's driveway. Whittles screamed at Christopher and pounded his fists on the roof of

Christopher's     car.   Christopher drove away and did not return to her house until the next day.

When Christopher returned to her home, her truck was dented, the storage shed on the property

was damaged, the house's doors and windows were broken, and several items and pieces of

furniture inside the house were destroyed.

          Whittles went to trial before a jury on one count of first degree malicious mischief and

one    count    of the       lesser    included   offense   of    third degree malicious mischief.      RCW


a), charges included domestic violence allegations.                                                     RCW
070(
   4     1 Both
9A. 8.090(
   1)( )(
      a). .

10 99. 20.
     0


          At   trial, Christopher testified       to the above facts.     During Christopher's testimony, the

State asked Christopher why she did not call the police after Whittles attacked her car.

Christopher responded that she did not know why she decided not to call the police but that she

still had enough respect for Whittles " o not involve him in another police incident."1 Report of
                                      t

Proceedings (RP) at 85. Defense counsel did                     not   object. Later, when asked what she did

between leaving her friend's house and returning home, Christopher responded, I went and did
                                                                              "

some    shopping       and   just     kind of tried to kill     some    time.   I knew that [ Whittles] had an



                                                            2
No. 43127 1 II
          - -



appointment   with Mr. Houser in    regards   to   something else."'-RP
                                                                   1                 at 87.     Defense counsel


objected to this second statement and the trial court sustained the objection. Christopher also

testified that at the time of trial, her insurance company had reimbursed her approximately

27, 00 for the damage done to her property.
  0

       Kitsap County Sheriff's Deputy Kenneth H.Mahler testified to the damage that he saw at

Christopher's house. Derrick Ingulsrud, a friend of Christopher, also testified that he was with

both Whittles and   Christopher   at different   points   on   the   evening   in   question.    Whittles called


three witnesses: Barbara Coombs, Russell Spurling, and Kendall Williams. Whittles's witnesses

testified that Whittles was at a trailer park on Northwest Mountain View Road at the time

Christopher's house. as damaged.
                   w

       The jury found Whittles guilty of first degree malicious mischief and found that Whittles

and Christopher were family or household members for the purpose of the domestic violence

aggravating   factor.   The trial court sentenced Whittles to a standard range sentence of seven

months total confinement.       The trial court also imposed legal financial obligations which

included "$
         100 Contribution -
                          Kitsap County Expert Witness Fund [ KitsVp County Ordinance

139. 991]"and 1500 Contribution -
   1                            Kitsap             Co.   Special     Assault Unit." Clerk's        Papers at 39.

Whittles timely appeals.

                                              ANALYSIS


       Whittles contends that there was insufficient evidence to support the jury's verdict and

that his counsel's assistance was ineffective. Whittles argues that the evidence was insufficient

to support the jury's verdict because the State's witnesses offered testimony which conflicted on



1 Houser was the attorney representing Whittles during the malicious mischief trial
                                                     3
No. 43127 1 II
          - -



some points and, thus, the only logical inference to be drawn from the testimony of the State's
                       "

witnesses is that either they did not witness the same events or their veracity or reliability is

insufficient to support a conviction."Br. of Appellant at 3. But Whittles's argument necessarily

requires us to reweigh the evidence, which as a reviewing court we may not do, and it fails.

Whittles also argues that his counsel's assistance was ineffective because trial counsel failed to

request a mistrial after Christopher's remarks about what Whittles characterizes as his criminal

history. The record does not support this characterization and Whittles fails to establish either

deficient performance or prejudice. Accordingly, his ineffective assistance of counsel claim also

fails.


SUFFICIENCY OF THE EVIDENCE


          Evidence is sufficient if,when viewed in the light most favorable to the jury's verdict, it

permits any rational trier of fact to find the essential elements of the crime beyond a reasonable
doubt. State v. Salinas, 119 Wn. d 192, 201, 829 P. d 1068 (1992).A claim of insufficiency
                               2                  2               "

admits the truth of the State's evidence and all inferences that reasonably can be drawn

therefrom: - Salinas;119     Wn: d at 201: Circumstantial and direct evidence are equally reliable.
                               2 -

State    v.   Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980). Our role is not to reweigh the
                              2                  2


evidence or substitute our judgment for that of the jury. State v. Green, 94 Wn. d 216, 221, 616
                                                                               2

P. d 628 (1980).Instead, because the jurors observed the witnesses testify first hand, we defer
 2
to the jury's resolution of conflicting testimony, evaluation of witness credibility, and decision

regarding the persuasiveness and the appropriate weight to be given the evidence. See State v.

Walton, 64 Wn. App. 410, 415 16, 824 P. d 533, review denied, 119 Wn. d 1011 (1992).
                             -        2                             2

          According to Whittles, the evidence presented at trial " oes not bear sufficient indicia of
                                                                 d

reliability to enable a reasonable juror to overcome the presumption of innocence and convict."
                                                   4
No. 43127 1 II
          - -



Br. of   Appellant    at 6.   But as the State correctly points out, it is the jury's responsibility to

resolve conflicting testimony. Whittles concedes as much. Despite this, Whittles maintains that

he is not asking this court to reevaluate witness credibility or to resolve conflicting testimony

but, instead, is asking the Court to hold that the State's evidence did not meet minimum criteria
              "

of reliability sufficient to support a finding of guilt beyond a reasonable doubt."Reply Br. of

Appellant    at 2.    Whittles's argument does not make clear what the difference is between

reevaluating witness credibility and evaluating the reliability of          the evidence.   The relevant


question before us is whether viewed in the light most favorable to the State, the evidence

presented establishes the elements of first degree malicious mischief beyond a reasonable doubt.

If believed by the jury, Christopher's and Ingulsrud's testimony establishes the necessary

elements of the crime. Accordingly, Whittles's sufficiency of the evidence claim fails

         To prove Whittles committed first degree malicious mischief, the State must prove

Whittles (1)acted knowingly and maliciously, 2)caused physical damage to the property of
                                             (

another, and (3)caused damage in an amount exceeding $ 000. RCW 9A. 8.Here,
                                                     5,         a).
                                                                070(
                                                                   1)(
                                                                   4

Christopher testified that Whittles was angry at her and ended the relationship. She also testified

that Whittles was at her house and none of her property had been damaged when she left her

house that evening. Finally, Christopher testified that her insurance company had reimbursed

her at least $ 000 for the damage done to her property. From Christopher's testimony, the jury
             27,

could infer that Whittles destroyed Christopher's property out of anger over the end of the

relationship.

         In addition to Christopher's testimony, Ingulsrud testified that on two occasions he

returned to     Christopher's    house while Whittles    was    there.   On the first occasion, Whittles

appeared    very   upset. When Ingulsrud arrived    at the   house, he heard " little crashing around." 1
                                                                             a
No. 43127 1 II
          - -



RP at 134. On the other occasion, Whittles was still angry and refused to let Ingulsrud into the

house. From the    doorstep, Ingulsrud could   see "[   a]few   broken   things   on   the floor." 1 RP at


139.   Although Ingulsrud's testimony regarding the timeline was not consistent with

Christopher's, jury could have found credible Ingulsrud's account of his contact with
             the

Whittles. Because we view the evidence in the light most favorable to the jury's verdict and

circumstantial evidence is as reliable as direct evidence, the evidence presented here was

sufficient to establish beyond a reasonable doubt the elements of first degree malicious mischief.

Salinas, 119 Wn. d at 201; Delmarter, 94 Wn. d at 638.
               2                           2

INEFFECTIVE ASSISTANCE OF COUNSEL


       Whittles argues that he received ineffective assistance of counsel because his trial counsel \

did not request a mistrial when Christopher referenced Whittles's prior involvement with law

enforcement. The State argues that ( )
                                   1 trial counsel's performance was not deficient because not

objecting to Christopher's passing comment was a legitimate trial tactic, and (2)Whittles cannot

show prejudice because Christopher's comments were not grounds for a mistrial. We agree with

the


       To prevail on an ineffective assistance of counsel claim, Whittles must show both

deficient performance and resulting prejudice. Strickland v. Washington, 466 U. . 668, 687, 104
                                                                              S

S. Ct: 2052, 80 L. Ed. 2d 674 (1984). Counsel's           performance is deficient if it fell below an

objective   standard of reasonableness.   State v. Stenson, 132 Wn. d 668, 705, 940 P. d 1239
                                                                  2                  2

     cent. denied, 523
1997),                     U. . 1008 (1998). Our
                            S                            scrutiny of counsel's performance is highly

deferential; we strongly presume reasonableness. State v. McFarland, 127 Wn. d 322, 335, 899
                                                                           2

P. d 1251 (1995).To establish prejudice, a defendant must show a reasonable probability that
 2

the outcome would have differed absent the deficient performance. State v. Thomas, 109 Wn. d
                                                                                         2

                                                  Cel
No. 43127 1 II
          - -



222, 226,.
         743 P. d 816 (1987).If an ineffective assistance of counsel claim fails to support a
              2

finding of either deficiency or prejudice, it fails. Strickland, 466 U. . at 697.
                                                                      S

        Whittles's first claim is that trial counsel was ineffective by failing to object when

Christopher testified that she did not call the police because she did not want to "involve

Whittles] in     another   police   incident." 1 RP at 85. When an ineffective assistance of counsel


claim is based on failure to object, the defendant must show that (1)failure to object fell below

an objective standard of reasonableness, 2) proposed objection would have been sustained,
                                         ( the

and (3) result of the trial would have differed. In re Pers. Restraint ofDavis, 152 Wn. d 647,
      the                                                                             2

714, 101 P. d 1 ( 2004). If trial counsel's failure to object "`
          3                                                   can be characterized as legitimate
trial strategy   or   tactics, "' the   failure to object is not grounds for an ineffective assistance of

counsel claim. Davis, 152 Wn. d at 714 (quoting State v. McNeal, 145 Wn. d 352, 362, 37 P. d
                            2                                          2                 3

            Failure
280 ( 2002)).                to object in order to prevent unnecessarily emphasizing testimony is

considered a legitimate trial tactic. Davis, 152 Wn. d at 714 (citing State v. Donald, 68 Wn.
                                                   2

App. 543, 551, 844 P. d 447, review denied, 121 Wn. d 1024 (1993)).
                    2                             2

        Here, Whittles's trial counsel - not object to Christopher's comment that -s he did not
                                       did -           -                           s

report Whittles pounding on her car because she still had enough respect for him that she did not

want to involve him in " nother police incident."1 RP at 85. But it is reasonable to characterize
                       a

trial counsel's failure to      object   as   a   legitimate   trial tactic.   Christopher's comment was brief,

made in passing, and did not offer any specifics about the other incident that would allow the

jury to infer that Whittles had a propensity to commit malicious mischief. It is likely that trial

counsel decided not to object because he did not want to emphasize Christopher's comment to

the jury or minimize the delayed reporting evidence. Accordingly, trial counsel's performance

was not deficient and Whittles's first claim fails. Davis, 152 Wn. d at 714.
                                                                 2

                                                               7
No. 43127 1 II
          - -



       Whittles also argues that he received ineffective assistance of counsel because trial

counsel failed to request a mistrial after Christopher testified that' she knew Whittles would be

out of the house because he had an appointment with Houser.? prevail on this claim, Whittles
                                                            To
must show that had trial counsel requested a mistrial, the outcome would have been different.

Thomas, 109 Wn. d at 226. In other words, Whittles would have to show that the trial court
              2

would have granted the motion for a mistrial. A trial court should grant a mistrial when the

defendant has suffered prejudice such that nothing short of a new trial will ensure that defendant

a fair trial. State v. Rodriguez, 146 Wn. d 260, 270, 45 P. d 541 (2002)quoting State v. Kwan
                                        2                 3              (

Fai Mak, 105 Wn. d 692, 701, 718 P. d 407, cent. denied, 479 U. . 995 (1986). Whether an
               2                  2                           S

inadvertent remark justifies a mistrial depends on (1)the seriousness of the irregularity; ( )
                                                                                           2

whether the statement in question was cumulative of other evidence; and (3)whether the

irregularity could effectively be cured by an instruction to disregard the remark, an instruction

the jury is presumed to follow. State v. Weber, 99 Wn. d 158, 165 66,659 P. d 1102 (1983).
                                                     2            -       2

       Christopher testified that she did not return home until 2 PM because she knew that

Whittles had an appointment with Houser and Whittles would not be at the house. Whittles

contends that this comment is so prejudicial that the trial court would have granted a motion for a

mistrial. As the State correctly points out, current precedent is contrary to Whittles's assertion.

       In State v. Condon, 72 Wn. App. 638, 649 50, 865 P. d 521 (1993),
                                                -        2             review denied, 123

Wn.. 1031 (1994), witness made a reference about Condon having been in jail, but the court
  2d            a

observed that "although the remarks may have had the potential for prejudice, they were not so

2
  In his appeal brief, Whittles relies on facts outside the record to support his argument.
Specifically, Whittles repeatedly refers to Houser as the public defender, and states that the
witness referred to Whittles's meeting with the public defender rather than Whittles's meeting
with Houser. While we disapprove of relying on assumptions of facts outside the record, in this
instance the misstatements of the record are not sufficiently severe as to warrant sanctions.
                                                  8
No. 43127 1 II
          - -



serious   as    to warrant     a   mistrial." Similarly,     Christopher's ambiguous reference to Whittles's

meeting with Houserwhom she did not identify as a public defender was not so serious that
                   —                                              —

it would       require   a   mistrial.    Therefore, Whittles cannot show prejudice resulting from trial

counsel's failure to move for a mistrial and his ineffective assistance of counsel claim fails.

Thomas, 109 Wn. d at 226.
              2

          Furthermore, defense counsel objected to the comment and the objection was sustained.

The trial court could have instructed the jury to disregard the comment and there would be no

grounds    for    a   mistrial. We       assume   the   jury follows the   trial court's instructions. Weber, 99


Wn. d at 166.
  2                      However, the decision not to request that the trial court instruct the jury to

disregard an inadvertent comment is a legitimate trial tactic because it prevents calling

unnecessary       jury    attention to the comment.            Accordingly, Christopher's comment was not

sufficient grounds for a mistrial because the error could have been cured with an instruction to
the   jury. Weber,           99 Wn. d at 166; Condon, 73 Wn.
                                  2                                       App.   at 250.   And defense counsel's


decision not to request an instruction was a legitimate trial tactic and not deficient performance.

LEGAL FINANCIAL OBLIGATIONS


          Whittles argues that the trial court improperly imposed two legal financial obligations in

Whittles's judgment and sentence: a contribution to the Kitsap County Special Assault Unit and

a contribution to the Kitsap County's Expert Witness Fund. Whittles argues that the trial court

erred by imposing 'these legal financial obligations because they are not authorized by statute.

The State concedes that the legal financial obligations are not authorized by statute and that the

trial court exceeded its           authority by imposing          them.   We accept the State's concession and

remand to the trial court to correct the judgment and sentence by striking the improper legal

financial obligations.

                                                              D
No. 43127 1 II
          - -



         The trial court's authority to impose costs and fees is statutory. See State v. Hathaway,

161 Wn. App. 634, 652 53, 251 P. d 253, review denied, 172 Wn. d 1021 ( 2011);RCW
                      -        3                             2

160.
10. 1. Under RCW 10. 1.
  0              160(
                    2 costs shall
                    0 ) " be limited to expenses specially incurred by

the state in prosecuting the defendant."Here, the trial court imposed costs for the Kitsap County

Special Assault Unit and Kitsap County's Expert Witness Fund. Whittles's case did not involve
an   assault   nor   did it   require   the   testimony of   an   expert Witness. Therefore; the trial court

exceeded its statutory authority to impose costs by imposing costs that were not incurred by the

State in Whittles's prosecution. The State's concession is proper and we remand for the trial

court to correct the judgment and sentence by striking the improper legal financial obligations

from the judgment and sentence. We affirm Whittles's conviction.

         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 2.6.it is
                                                                                  040,
                                                                                   0
so ordered.



                                                                                              J %

                                                             Q INN-
                                                                  BRINTNALL, J.
We concur:




J . HANSON, A. .
            J.
             C
                                         1




     A
     2Aaeo' >
        ,            z- --                     -
FEARING, J.'




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