                                                                            FILED
                                                                    AUGUST 16, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                         )
                                             )         No. 32982-8-111
                    Respondent,              )
                                             )
      V.                                     )
                                             )                                                          I
RUSTY JOE ABRAMS,                            )         UNPUBLISHED OPINION

                    Appellant.
                                             )
                                             )                                                          I
                                                                                                        r
                                                                                                        !(
      FEARING, C.J. -The trial court, after a jury trial, convicted Rusty Abrams of both

assault in the second degree and assault in the third degree with the aggravating

circumstances of a crime against a law enforcement officer. Abrams seeks reversal of

both convictions on evidentiary grounds. We deny this request, but agree with his other

argument that, based on double jeopardy grounds, he cannot be convicted of both crimes

since each charge arises from the identical conduct.

                                         FACTS

      During the early morning of April 27, 2014, Officer Patrick Canady, of the

Ephrata Police Department, patrolled city streets in a marked police car and while
No. 32982-8-111
State v. Abrams


wearing his police uniform. At 1:00 a.m., Canady espied a man walking on Nat

Washington Way. The stroller wore a gray sweatshirt, red hat, dark pants, and black

backpack. Officer Canady shined his patrol car spotlight on the man and recognized him,

without a doubt, as Rusty Joe Abrams. An outstanding warrant then demanded Abrams'

arrest.

          After Officer Patrick Canady spotted Rusty Abrams, a train passed and blocked

Canady's access to and view of Abrams. Officer Canady waited for the train to pass and

radioed to other officers that he had located Abrams. After the train passed, Canady saw

Abrams ambulate south on A Street away from Nat Washington Way. As Canady drove

down A Street, Abrams switched directions and ran north on A Street. Canady activated

his patrol car's overhead lights and followed Abrams. Abrams ran around a fence, at

which point Canady lost sight of Abrams.

          Officer Patrick Canady entered another street and parked his patrol car by a fenced

area where two trucks parked. With aid of the car's flashing lights, Canady again spotted

Rusty Abrams squatting by the fence. Canady exited his patrol car, unholstered his

Taser, and ordered Abrams to lie on the ground. Canady approached within ten feet of

Abrams. Abrams ran instead of complying with the police order. Officer Canady yelled

'"Taser, Taser, Taser, Stop!"' Report of Proceedings (RP) at 280. He then reholstered

his Taser and chased Abrams.


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No. 32982-8-111
State v. Abrams


      As Officer Patrick Canady neared within five feet of Rusty Joe Abrams, Canady

saw a mist appear over Abrams' left shoulder. Officer Canady ran into the mist, and the

spray disabled him. The spray shut Canady's eyes and caused him pain and breathing

difficulty. Canady identified the mist as pepper spray.

      Officer Patrick Canady quickly retreated behind a truck parked by his police

cruiser. He called dispatch for help. Officer Jack McLauchlan found Canady. Officer

McLauchlan checked the condition of Canady and then pursued Rusty Abrams. Canady

summoned an ambulance and awaited medical assistance in his patrol car.

      Officer Jack McLauchlan failed to locate Rusty Abrams and returned to assist

Officer Patrick Canady. In the meantime, Canady grew impatient with the slow

ambulance and drove himself to the hospital. At the hospital, Canady rinsed his face and

eyes. Dr. Brett Taylor examined Canady's eyes and detected no continuing ailment.

Within an hour, Canady returned to and photographed the area where he encountered

Rusty Abrams.

      The following day Ephrata police officers found Rusty Abrams and arrested him.

Officers also discovered a can of pepper spray on Abrams' person. Officers Jack

McLauchlan and Patrick Canady squirted, onto a paper towel, the spray confiscated from

Abrams. Canady smelled the aroma he encountered the previous night when entering the

mist sprayed by Rusty Abrams.


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No. 32982-8-111
State v. Abrams


       Rusty Abrams wrote a letter while in jail pending trial. He wrote "Rusty Abrams"

in the upper left-hand comer of the letter's envelope. RP at 216. A portion of the partly

poetic letter read:

                A Tank isn't what it used to be.

               I had ... an empty can of mace, the police giving chase, dropping
       like flies out of the race. Pepper spray in the face.

              I turned old Urwin into a believer, told him that pepper spray takes
       stupid away.

RP at 505-07.

                                        PROCEDURE

       The State of Washington charged Rusty Abrams with three crimes: assault in the

second degree by reason of poison or torture in violation ofRCW 9A.36.021(l)(d), (f)

and (g); assault in the third degree by reason of criminal negligence and substantial pain

in violation ofRCW 9A.36.031(l)(f) and with the aggravated circumstance ofa crime

against a police officer in violation ofRCW 9.94A.535(3)(v); and assault in the third

degree of a law enforcement officer in violation ofRCW 9A.36.03 l(l)(g).

       By the date of trial, the State had filed its third amended information. The last

information charged Rusty Abrams with assault in the second degree by reason of poison

or a deadly weapon and assault in the third degree against a law enforcement officer. The

State alleged the aggravated circumstance of a crime against police officer for purposes


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No. 32982-8-III
State v. Abrams


of the assault in the second degree charge. At the beginning of trial, the trial court

inquired whether the State charged the two assault counts in the alternative. The State's

counsel responded, "I have not charged them in the alternative .... But they are most

likely going to be alternatively charged." RP at 4.

       During trial, Rusty Abrams objected, on ER 402 and 403 grounds, to the

admission of his jail letter. The State argued that comments in the letter constituted a

confession. In response, Abrams contended that the written remarks showed only

awareness of the charges and did not comprise a confession.

       Rusty Abrams particularly demurred to the jury reading or hearing the line from

the letter that declared: "A Tank isn't what it used to be." RP at 241. According to

Abrams, the line would inform the jury that he had sat in jail and might lead the jury to

infer guilt. The State argued the "A Tank" line was admissible because the language

assisted in identifying who wrote the letter. RP at 241. The trial court overruled

Abrams' objection to the admissibility of the letter as an exhibit. The court reasoned that

the jury would already infer that Abrams went to jail since the jury heard that Officer

Patrick Canady pursued Abrams because of an outstanding warrant for his arrest.

According to the trial court, any prejudice resulting from the "A Tank" statement was

minimal.




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No. 32982-8-111
State v. Abrams


      During Officer Canady's testimony, the State elicited the following testimony:

             [THE STATE:] Okay. And do you know Mr. Abrams?
             A I do.
             Q And have you had contact with Mr. Abrams in your professional
      capacity prior to April 27th of this year?
             A Yes, I have.
             Q Do you know how many times?
             A I believe there was like three documented times. And then
      undocumented times, multiple. You know, you just stop and talk to him
      and ...
             Q Do you have those dates?

             A One of them was on 2-1 of 2014 on G Street Southeast.
             Q Okay.
             A Another one was on 8-19 of 2013. His friend was at their house
      burglarizing. That was-
             THE COURT: No, you're-the question was just-
             THE WITNESS: Sorry.
             THE COURT:-times for contact, not a-
             THE WITNESS: Sure.
             THE COURT:-narrative of what took place.
             THE WITNESS: Okay.
             [THE STATE:] Judge, thank you.
             Q: Go ahead.
             A And then 5-1 of 2010 I had contact with him then too.
             Q Okay. Now, were these contacts just a brief, walk-by contact?
      Or were they-
             A No.
             Q -face-to-face talking?
             A They were face-to-face. They were calls or contacts with other
      officers with him.
             Q Okay. And would it be fair to say that you know what Mr.
      Abrams looks like?
             A Oh, yes.

RP at 262-64.


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No. 32982-8-III
State v. Abrams


       The State later elicited the following testimony from Officer Jack McLauchlan:

                Q   Now, do you know Rusty-or know of Rusty Abrams?
                A   Yes.
                Q   And have you had personal contact with him before?
                A   Yes.
                Q   Do you know what he looks like?
                A   Yes.

RP at 457-58.

       Following a three-day trial, the trial court instructed the jury with regard to assault

in the second degree:

              [t]o convict the defendant of the crime of assault in the second
       degree as charged in count 1, each of the following elements must be
       proved beyond a reasonable doubt:
              (1) That on or about April 27, 2014, the defendant assaulted Patrick
       Canady;
              (2) That the defendant acted with intent to inflict bodily harm;
              (3) That the defendant acted by one or more of the following means
       or methods:
              (a) The defendant used a deadly weapon; or
             (b) The defendant administered to or caused to be taken by Patrick
       Canady, a noxious substance; and
             ( 4) That any of these acts occurred in the State of Washington.

Clerk's Papers (CP) at 30. The trial court instructed the jury with regard to aggravating

circumstances:

             If you find the defendant guilty of Assault in the Second Degree as
      charged in Count 1, then you must determine if the following aggravating
      circumstances exist:
             Whether the crime was committed against a law enforcement officer
      who was performing his or her official duties at the time of the crime, and
      the defendant knew the victim was a law enforcement officer.

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No. 32982-8-111
State v. Abrams


CP at 42. Finally, the court defined "knowledge" for the jury:

               A person knows or acts knowingly or with knowledge with respect
       to a fact, circumstance or result when he or she is aware of that fact,
       circumstance or result. It is not necessary that the person know that the
       fact, circumstance or result is defined by law as being unlawful or an
       element of a crime.
               If a person has information that would lead a reasonable person in
       the same situation to believe that a fact exists, the jury is permitted but not
       required to find that he or she acted with knowledge of that fact.
               When acting knowingly (as to a particular fact) is required to
       establish an element of a crime, the element is also established if a person
       acts intentionally as to that fact.

CP at 28.

       The jury found Rusty Abrams guilty of assault in the second degree and assault in

the third degree. The jury also found that the State of Washington proved aggravated

circumstances. The trial court imposed an extraordinary sentence of ninety-six months in

prison for second degree assault. The court also meted a sentence of sixty months for

third degree assault, with both sentences to run concurrently.

       At sentencing the trial court inquired into Rusty Abrams' ability to pay:

              [THE COURT:] Does he have the likely future ability to pay his
      financial obligations?
              [ABRAMS' COUNSEL:] When he's released, your Honor, I
      believe he'll be able to find employment. But I think that-that will be a-
      l believe he does. He has been employed.

RP (Dec. 16, 2014) at 55-56. The trial court imposed a total of $1,400 in legal financial

obligations. The total obligations include a $500 victim assessment fee, a $200 criminal


                                              8
No. 32982-8-III
State v. Abrams


filing fee, a $100 DNA collection fee, and $600 for court appointed attorney fees.

                                 LAW AND ANALYSIS

               Testimony of Officers' Earlier Contact with Rusty Abrams

       We first address Rusty Abrams' assignments of evidentiary errors since we would

reverse both convictions and remand for a new trial if we agreed with one of these

assignments. Since Abrams did not object at trial to some of the testimony that he

contends should have been excluded, he argues that his trial counsel was ineffective for

failing to object. This testimony entails Officers Patrick Canady's and Jack

McLauchlan's recounting of previous interactions with Abrams. The State responds that

the officers' testimony did not establish criminal activity by Abrams such that defense

counsel was not ineffective for failing to object. The State also argues that, assuming the

testimony was inadmissible, any error was harmless. We conclude that Abrams' trial

counsel was not ineffective.

      A claim of ineffective assistance of counsel requires a showing that ( 1) counsel's

performance was deficient, and (2) the deficient performance prejudiced the defendant.

Stricklandv. Washington, 466 U.S. 668,687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);

State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011); State v. Hamilton, 179 Wn.

App. 870, 879, 320 P.3d 142 (2014). This is a mixed question oflaw and fact, reviewed

de novo. Strickland, 466 U.S. at 698.


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No. 32982-8-111
State v. Abrams


       Under the deficiency prong, this court gives great deference to trial counsel's

performance and begins the analysis with a strong presumption that counsel was

effective. State v. West, 185 Wn. App. 625, 638, 344 P.3d 1233 (2015). Deficient

performance is performance that fell below an objective standard of reasonableness based

on consideration of all the circumstances. State v. McFarland, 127 Wn.2d 322, 334-35,

899 P.2d 1251 (1995). The defendant bears the burden to prove ineffective assistance of

counsel. McFarland, 127 Wn.2d at 335.

       Trial strategy and tactics cannot form the basis of a finding of deficient

performance. State v. Johnston, 143 Wn. App. 1, 16, 177 P.3d 1127 (2007). The

decision of when or whether to object is a classic example of trial tactics. State v.

Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). 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. Madison, 53 Wn.

App. at 763.

       We do not reach the prejudice prong of ineffective assistance of counsel because

trial counsel was not deficient for withholding an objection to the Ephrata police officers'

respective testimony. Rusty Abrams argues that Officer Jack McLauchlan' s testimony

was irrelevant because he was not present when the assault occurred. The State does not

respond to this argument, and instead argues that McLauchlan's testimony of prior


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No. 32982-8-111
State v. Abrams


contacts did not prejudice Abrams since McLauchlan merely answered yes to a question.

The lack of prejudice is underscored by Officer McLauchlan omitting any reference to

the basis of the earlier contact. More importantly, the testimony was relevant because the

earlier interaction laid a foundation for how McLauchlan later identified Abrams. The

testimony was admissible and thus trial counsel was not ineffective.

       Officer Patrick Canady, contrary to Jack McLauchlan, testified about his

prior professional contacts with Rusty Abrams. This testimony implicates ER

404(b) because the testimony implies Abrams engaged in earlier criminal

behavior.

       ER 404(b) reads:

             Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity therewith. It
      may, however, be admissible for other purposes, such as proof of motive,
      opportunity, intent, preparation, plan, knowledge, identity, or absence of
      mistake or accident.

Prior contacts with police can be admissible ER 404(b) evidence if the State employs the

evidence for a purpose other than showing a propensity to criminal conduct. During

Rusty Abrams' trial, the principal factual question was the identity of the person who

pepper sprayed Officer Patrick Canady. Thus, defense counsel would understand that

Officer Canady's earlier intercourse with Abrams would be relevant and admissible over

an ER 404(b) objection. In addition, since the jury learned that a warrant was issued for


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No. 32982-8-111
State v. Abrams


the arrest of Rusty Abrams, the jury would already surmise that Abrams previously

engaged police officers. Given the trial court's prompt reminder to Officer Canady,

during the latter's testimony, to limit his description of interactions to dates, defense

counsel encountered no need to object. To the contrary, if defense counsel had objected,

the jury's attention might have been drawn to the professional nature of those contacts.

Because defense counsel possessed a legitimate strategic reason not to object, defense

counsel's failure to object was not deficient representation.

                                       "A Tank" Letter

       Rusty Abrams next argues that the trial court abused its discretion by admitting the

portion of his jail letter that referred to "A Tank" because the line established that he

previously occupied jail. We do not address the merits of Abrams' argument, because,

assuming the trial court should have excluded the letter or the line from the letter, the

error is harmless. The jury was not told that "A Tank" is a section of jail. Therefore, the

jury would not likely conclude Abrams sat in jail.

       Evidence that is substantially more prejudicial than probative is inadmissible. ER

403. Evidence of prior bad acts are not admissible to show propensity to commit crimes.

ER 404(b ). When an error arises from a violation of an evidentiary rule, not a

constitutional mandate, this court applies the rule that error is not prejudicial unless,

within reasonable probabilities, the outcome of the trial would have been materially


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No. 32982-8-III
State v. Abrams


affected had the error not occurred. State v. Howard, 127 Wn. App. 862, 871, 113 P.3d

511 (2005) (quoting State v. Bourgeois, 133 Wn.2d 389,403,945 P.2d 1120 (1997)).

Because the jury did not hear the nature of "A Tank," we conclude the evidence likely

did not impact the outcome of the case. Overwhelming other evidence establjshed that

Rusty Abrams squirted the pepper spray that disabled Officer Patrick Canady.

                                      Double Jeopardy

       Rusty Abrams contends that his convictions of both assault in the second degree

and assault in the third degree for the same conduct violated double jeopardy. The State

concedes that the third degree assault conviction should be vacated. We agree and vacate

the lesser charge of third degree assault.

       Claims of double jeopardy are questions of law, which we review de novo. State

v. Hughes, 166 Wn.2d 675,681,212 P.3d 558 (2009). Double jeopardy may be

implicated when multiple convictions arise out of the same act, even if concurrent

sentences have been imposed. State v. Calle, 125 Wn.2d 769, 774-75, 888 P.2d 155

(1995). On appeal, the undisputed facts show that the trial court convicted Rusty Abrams

twice for the same conduct, the release of pepper spray. The concurrent sentences for the

two crimes do not cure the double jeopardy violation.




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No. 32982-8-111
State v. Abrams


                      STATEMENT OF ADDITIONAL GROUNDS

       Rusty Abrams raises two errors in his statement of additional grounds: (1) the trial

court imposed discretionary legal financial obligations without conducting an

individualized inquiry into his ability to pay, and (2) the jury instruction explaining the

nature of knowledge relieved the State of proving a portion of the mens rea requirement

for the aggravating factor. A criminal defendant can submit a prose statement of

additional grounds for review of issues he believes have not been adequately addressed

by the brief filed by the defendant's appellate counsel. RAP 10.lO(a).

                                Legal Financial Obligations

       Rusty Abrams challenges the imposition of discretionary legal financial

obligations because he lacks the present or future ability to pay. We disagree and affirm

the award of discretionary financial obligations.

       Courts may impose financial obligations if a defendant has or will have the

financial ability to pay them. RCW 10.01.160; RCW 9.94A.760(2); State v. Curry, 118

Wn.2d 911,914, 829 P.2d 166 (1992). RCW 10.01.160(3) provides:

              The court shall not order a defendant to pay costs unless the
       defendant is or will be able to pay them. In determining the amount and
       method of payment of costs, the court shall take account of the financial
       resources of the defendant and the nature of the burden that payment of
       costs will impose.

       In State v. Blazina, 182 Wn.2d 827, 838, 344 P.3d 680 (2015) our Supreme Court


                                             14
No. 32982-8-III
State v. Abrams


clarified that RCW 10.01.160(3) requires the trial court to do more than sign a judgment

and sentence with boilerplate language stating that it engaged in the required inquiry.

Rather, the record must reflect that the trial court made an individualized inquiry into the

defendant's current and future ability to pay. Blazina, 182 Wn.2d at 838. Rusty Abrams'

sentencing court inquired on the record whether Rusty Abrams would be able to pay the

financial obligations, and his defense counsel responded that Abrams would be able to

find employment. This inquiry, though sparse, addressed Abrams' individual

circumstances and showed that Abrams likely had a future ability to pay $600 in

discretionary legal financial obligations.

                                   Knowledge Instruction

       Rusty Abrams next argues that the jury instruction defining knowledge created a

mandatory presumption that he intended to cause harm because he must have known that

Officer Patrick Canady was a law enforcement officer. In tum, Abrams argues the

instruction relieved the State of its burden to prove all of the elements of the charges

beyond a reasonable doubt. The State argues that the amended pattern instruction

language did not create a mandatory presumption.

       Rusty Abrams did not object to the jury instruction before the trial court.

Therefore, as a threshold matter, this court must determine whether to review the issue.

We decline to entertain the assignment of error because Abrams fails to show prejudice,


                                             15
No. 32982-8-111
State v. Abrams


assummg any error.

       RAP 2.S(a) states "[t]he appellate court may refuse to review any claim of

error which was not raised in the trial court." One exception to that general rule is

when a manifest error affects a constitutional right. RAP 2.5(a)(3). The last step

in a manifest constitutional error analysis is whether any error was harmless. State

v. Barr, 123 Wn. App. 373,380, 98 P.3d 518 (2004).

      Rusty Abrams' defense centered on the argument that Officer Patrick Canady did

not have the opportunity to identify him during early morning April 27, 2014. The

evidence was overwhelminingly to the contrary. Patrick Canady knew Abrams from

multiple previous encounters. Canady shown his light on Abrams, while the latter

walked along the street. During the chase, the patrol car's lights flashed. Canady came

within ten feet of Abrams during the pursuit. Abrams knew Officer Patrick Canady was a

law enforcement officer. The two had met before. Officer Canady activated his patrol

car lights. He wore his uniform.

                                     CONCLUSIONS

       We vacate Rusty Abrams' conviction for third degree assault, but affirm his

conviction for second degree assault. We remand to the trial court for resentencing based

on the vacation of the one conviction.




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No. 32982-8-III
State v. Abrams


      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.



                                        Fearing, CJ.

WE CONCUR:




                                           17
