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

STATE OF WASHINGTON,                             No. 73923-9-1


                     Respondent,

          v.



LEROY CURTIS RUSSELL,                            UNPUBLISHED OPINION


                    Appellant.                   FILED: January 17, 2017


      Verellen, C.J. — Leroy Russell challenges his jury conviction for one count of

gross misdemeanor harassment and one count of attempted felony harassment.

Russell contends he received ineffective assistance of counsel because his attorney

failed to propose a voluntary intoxication instruction. Because Russell does not

establish that he would have been entitled to such an instruction or that counsel's failure

to propose one was deficient, we affirm.

                                           FACTS

       On the evening of May 8, 2015, Adrian Hammond was having a barbecue with

his roommate, David Stout, and some other friends in the front yard of his Everett home.

Stout's pit bull was also in the front yard. Russell, who did not know Hammond or any

of his friends, was driving his truck down Hammond's street when he came to a stop in

front of Hammond's house. According to Hammond, Russell "looked over at us and sat
No. 73923-9-1/2


there like he was in a daze."1 Russell had his own pit bull in the front passenger seat.

Russell's pit bull and Stout's pit bull began barking loudly at each other. Fearing the

confrontation between the two dogs would escalate, Hammond shouted at Russell to

drive away. Russell drove away and Stout took his dog inside the house. Hammond

called 911 and reported the encounter. Officers were dispatched to the area but could

not find Russell.

         About 20 minutes later, Russell drove by again and pulled into Hammond's

driveway. According to Hammond, Russell opened the driver's side door, leaned out,

and told the group "he was going to shed our blood all over the propertyand we're all

going to die."2 Russell drove off and parked his truck at a bowling alley down the street.
Russell got out of the truck and began walking back towards Hammond's house on foot,

with his pit bull on a leash. Hammond again called 911. Officers Chris Olsen and Carl
Everett arrived and encountered Russell in Hammond's driveway. After speaking with

both Russell and Hammond, Officer Olsen told Russell to leave the area but not to

drive.

         Russell walked down the street towards a separate group of people having a

barbecue in front of their apartment complex. Officer Olsen observed Russell interact

with that group of people. The people "appeared shocked" and beckoned Officer Olsen
to come over.3 Officer Olsen walked over to the group and asked what had happened.




         1Report of Proceedings (RP) (July 27, 2015) at 58.
         2 RP (July 28, 2015) at 131.
         3 Id. at 238.
No. 73923-9-1/3


One of the individuals told Officer Olsen that Russell "had just made threats to shoot

them."4

       Officer Olsen followed Russell, who was walking towards his truck. Officer Olsen

detained Russell and told him to tie up his dog. Russell denied threatening anyone and

said that Hammond and his friends had actually threatened him with a rifle. Officer

Olsen placed Russell under arrest. According to Officer Olsen, Russell began "[cjalling

me a bitch, saying that, you know, he doesn't care if he has to do the time, he'll come

after me. And then later gets more specific saying he's going to kill me and Officer

Everett as well."5 Russell gave the officers permission to search his truck, where they

found a half-full can of Four Loko in the cup holder.

       As Officer Olsen transported Russell to the jail, Russell continued to make similar

threats as before. He also told Officer Olsen "how easy it was to look somebody up in

the internet and find out where they live" and "[t]hat he would kill me once he was out of

jail."6 Russell told Officer Olsen "he had nothing to lose" and "he would come after my

family as well."7

       The State charged Russell by amended information with one count of felony

harassment for the threats made against Hammond and two counts of attempted felony

harassment for the threats made against Officer Olsen and Officer Everett.

          Russell moved to suppress the statements made to the officers. At a CrR 3.5

hearing, Officer Olsen testified that Russell appeared to be "fairly heavily intoxicated" at



          5 Id, at 240.
          6 jd, at 243-44.
          7 Id. at 244.
No. 73923-9-1/4


the time of his arrest and had to be instructed multiple times to tie up his dog.8

However, Officer Olsen testified that Russell did not appear to be confused about the

basis for his arrest. According to Officer Olsen, Russell was primarily concerned with

what would happen to his dog.

       Russell also testified at the CrR 3.5 hearing. Russell stated that he initially failed

to tie up his dog because Officer Olsen refused to give him a reason for doing so.

Russell was able to precisely recall the order of events, the number of officers involved,

and where he had tied his dog. Russell denied threatening Hammond and his friends,

or interacting with the second group of people at all.

       The trial court found that Russell was "very intoxicated" at the time of the crimes.9

However, the trial court ruled that the statements to the officers were voluntary and

therefore admissible at trial. The trial court noted that nothing "would compel the

defendant to have said any of those things or otherwise overcome his voluntariness."10

       Defense counsel notified the State that Russell's defense would be general

denial and that she would not pursue a voluntary intoxication defense. The State

contended that if Russell was not raising a voluntary intoxication defense, Russell

should not be permitted to argue that intoxication affected his judgment or intent. The

State conceded that Russell could, however, argue that intoxication affected his

memory the night of the incident. The trial court ruled:




       8 RP (July 24, 2015) at 14-15.
       9 Clerk's Papers (CP) at 10.
       10 RP (July 24, 2015) at 58.
No. 73923-9-1/5


      To the extent that the [djefense seeks to cross examine witnesses about
      their ability to recall or perceive information based on intoxication, you are
      well within your right to do that. But with regard to arguing the effect of
      alcohol on your client, in my view if you're not seeking a voluntary
      intoxication instruction, you are not allowed to argue that somehow there
       is a mitigation for his behavior based upon alcohol intoxication. Okay?[11]

Defense counsel responded:

       Your Honor, in that case I would ask that the Court exclude testimony from
       any witness in the absence of my client testifying that they felt in any way,
       shape or form he was impaired or under the influence of any substance,
       including drugs or alcohol, because the State has said it is not relevant
       unless it has to do with memory, so therefore, it is not relevant.'12'

Defense counsel also moved to exclude evidence of the Four Loko can found in

Russell's truck. The trial court granted the motion.

       The jury failed to reach a verdict on the felony harassment charge involving

Hammond, but convicted Russell of the lesser offense of gross misdemeanor

harassment. The jury convicted Russell of attempted felony harassment involving

Officer Olson, but acquitted him of attempted felony harassment involving Officer

Everett.13

       At sentencing, the trial court asked Russell about whether he was intoxicated at

the time of the crimes.

       COURT:         Let me ask you, there was some, even though it wasn't
                      really discussed much at trial, there was some issue about
                      whether you were under the influence of alcohol at the time
                      this all happened; is that true?

       RUSSELL:       Yes, ma'am. No. No, it wasn't an issue with them either,
                      because they didn't ask about it. They didn't, you know, give



       11 RP (July 27, 2015) at 16-17.
       12 Id at 17.

       13 Officer Everett, who was on medical leave, did not testify at trial.
No. 73923-9-1/6


                     me a breathalyzer. There was no field sobriety test or
                     anything.[14]

The trial court imposed a low end standard range sentence. Russell appeals.

                                         DECISION


       Russell argues that defense counsel was ineffective for failing to request a

voluntary intoxication instruction. He argues that he was entitled to such an instruction

and counsel's failure to propose one prejudiced the outcome of the trial.

       Under the Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution, a defendant is guaranteed the right to

effective assistance of counsel in criminal proceedings.15 To establish ineffective

assistance of counsel, a defendant must first show that counsel's performance was

deficient.16 In the context of failure to request a jury instruction, a defendant must show

that he was entitled to the instruction and that the failure to request it "fell below an

objective standard of reasonableness under professional norms."17 The defendant must

then demonstrate resulting prejudice, i.e., a reasonable probability that, but for

counsel's deficient performance, the result of the proceeding would have been

different.18 A reasonable probability is "a probability sufficient to undermine confidence

in the outcome."19



       14 RP (July 30, 2015) at 8-9.
      15 Strickland v. Washington, 466 U.S. 668, 684-86, 104 S. Ct. 2052, 80 L. Ed. 2d
674(1984).
       16 State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
     17 State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001); State v.
Thompson, 169 Wn. App. 436, 495, 290 P.3d 996 (2012)
       18 McFarland. 127 Wn.2d at 335.
       19 Strickland, 466 U.S. at 694.
No. 73923-9-1/7


       The reasonableness of counsel's performance is to be evaluated from counsel's

perspective at the time of the alleged error and in light of all the circumstances."20 An
attorney's performance is not deficient if it can be characterized as part of a legitimate

trial strategy.21 There is a strong presumption that a defendant received effective

representation, and exceptional judicial deference must be given when evaluating

counsel's strategic decisions.22

       Ajury may be instructed on voluntary intoxication only if there is substantial

evidence that the defendant's intoxication affected his ability to form the necessary

mental state to commit the charged crime.23 In other words, a defendant is entitled to

an instruction on voluntary intoxication only if (1) a particular mental state is an element

of the crime, (2) there is substantial evidence the defendant was drinking, and (3) there

is substantial evidence that the drinking affected the defendant's ability to form the

required mental state.24 Evidence of drinking alone is insufficient; there must be
substantial evidence of the alcohol's effects on the defendant's mind or body.25

"Substantial evidence exists where there is a sufficient quantity of evidence in the

record to persuade a fair-minded, rational person of the truth of the finding."26
       Here, the first two requirements for a voluntary instruction are satisfied. As

charged here, a person is guilty offelony harassment if, without lawful authority, the

       20 In re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).
       21 McFarland, 127 Wn.2d at 336.
       22 Id, at 335.
       23 State v. Gabrvschak, 83 Wn. App. 249, 252-53, 921 P.2d 549 (1996).
       24 State v. Galleqos, 65 Wn. App. 230, 238, 828 P.2d 37 (1992).
       25 Gabrvschak, 83 Wn. App. at 253.
       26 State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994).


                                              7
No. 73923-9-1/8


person knowingly threatens to kill a person and places the person threatened in

reasonable fear that the threat will be carried out.27 A person is guilty of an attempt to

commit a crime "if, with intent to commit a specific crime, he or she does any act which

is a substantial step toward the commission of that crime."28 Thus, both felony

harassment and attempt to commit harassment contain a particular mens rea

requirement.

       Furthermore, there was evidence from which a jury could reasonably conclude

that Russell was intoxicated at the time of the incident. Hammond described Russell as

"in a daze." Officer Olsen testified that Russell was "fairly heavily intoxicated," to the

point that he instructed Russell not to drive. Officers also found a half-full container of

an alcoholic beverage in the cup holder of Russell's truck.

       However, Russell fails to establish that there was substantial evidence that

defense counsel could present to show he was so intoxicated he could not form the

intent to commit the crimes. Russell testified in detail at the CrR 3.5 hearing about his

actions and had no difficulty recalling the sequence of events. Moreover, the evidence

showed that Russell was aware of the consequences of his actions. While threatening

Officer Olsen, Russell stated that he didn't care "if he has to do the time" and that he

would kill Officer Olsen "once he was out of jail." Russell and Officer Olsen also had a

"fairly significant exchange" about what would happen to Russell's dog while Russell

was in custody.29 Thus, Russell was not entitled to a voluntary intoxication instruction.30



       27 RCW 9A.46.020.
       28RCW9A.28.020(1).
       29 RP (July 24, 2015) at 15.


                                              8
No. 73923-9-1/9


       Nevertheless, even assuming he was entitled to such an instruction, Russell fails

to show that defense counsel's failure to request it constituted ineffective assistance.

Here, defense counsel had a valid strategic reason for not pursing a voluntary

intoxication defense. As defense counsel stated, "[T]he fact that all of the witnesses are

in agreement that there were signs of impairment is something I am actually sort of

surprised that the State appears to be moving to suppress, because certainly alcohol

can affect someone in a negative way in terms of their temper."31 In other words,

defense counsel candidly acknowledged the danger of presenting evidence about

Russell's intoxication because a jury could infer that alcohol had made Russell angry

and irrational enough to make threats to kill strangers. Instead, defense counsel made

the decision to focus on the credibility of the State's evidence. This was a legitimate

and sensible choice because Hammond contradicted himself several times during the

trial, his version of events was inconsistent with Stout's, and he exhibited memory

impairmentto the point where he could not recall the prosecutor's name despite being

reminded of it several times. Defense counsel's strategy resulted in an acquittal on the

attempted harassment of Officer Everett and a conviction for only the lesser offense

against Hammond. Because defense counsel's decision not to request a voluntary

intoxication instruction was a legitimate trial strategy, Russell's ineffective assistance of

counsel claim fails.

       Russell asks this court to waive appellate costs. The State did not respond to

Russell's request. The trial court in this case found Russell to be indigent for the


       30 Though not before the jury, Russell also denied at sentencing that he was
under the influence and noted that the officers did not perform field sobriety tests or
arrest him for driving under the influence.
No. 73923-9-1/10


purpose of this appeal. Once a trial court grants an order of indigency, this court will

respect the presumption of continued indigency throughout review "unless we are

shown good cause not to do so."32 Consequently, we exercise our discretion to deny an

award of appellate costs.

       Affirmed.




WE CONCUR:




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       31RP(Jul. 27, 2015) at 14.
       32 State v. Sinclair, 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185
Wn.2d 1034, 377 P.3d 733 (2016).


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