                                                                                        a         D
                                                                                                APP

                                                                                    III ICT -
                                                                                            8       AM 9:2.

      IN THE COURT OF APPEALS OF THE STATE OF W

                                       DIVISION II


STATE OF WASHINGTON,                                              No. 429_


                             Respondent,

        V.

                                                                 Consolidated with:
JEFFERY RAY MONTGOMERY,

                             I1

STATE OF WASHINGTON,                                               No. 42958 6 II
                                                                             - -


                             Respondent,

        0




REX ALAN McNICOL,                                            UNPUBLISHED OPINION


                             Appellant.


        JOHANSON A. . A jury found Pierce
                 J.
                  C      —                           County Sheriff's Deputies Rex Alan McNicol
and   Jeffery Ray Montgomery guilty   of first   degree perjury. Rejecting the claims of Deputies

McNicol and Montgomery on appeal, we hold that (1) State presented sufficient evidence to
                                                  the

prove they committed first degree perjury; 2)
                                           ( assuming trial court error, it was harmless error to
exclude evidence of a witness's gross misdemeanor conviction; 3) trial court did not deprive
                                                              ( the

the defendants or the public of the right to an open and public trial by sealing juror

questionnaires; and (4)
                      Deputy McNicol's counsel was not ineffective. Accordingly, we affirm.
     No. 42938 1 II/
               - -
     No. 42958 6 II
               - -

                                                   FACTS


            In January 2009, dispatchers sent Deputies McNicol and . Montgomery to Robert

     Barham's and Doris Resch's home to      perform   a   welfare check   on   Resch's son, JA.   According

     to Deputy Montgomery's incident report, the deputies met Barham at his front door. They told

     Barham they were there to check on JA's welfare. Deputy Montgomery spoke with JA off of the

     front porch while Deputy McNicol spoke with Barham on the porch. Barham, who the deputies
In


     knew had a drug-
                    related felony conviction, admitted that he had a rifle in his closet. Per Deputy

     Montgomery's report, Barham took Deputy McNicol into the house so that Deputy McNicol
     could retrieve the rifle. Then Deputy Montgomery entered the home, took the gun from Deputy

     McNicol, and secured it. Next,Deputy McNicol walked Barham outside where Deputy McNicol

     arrested him, and Deputy Montgomery went back in the house to speak with JA and Resch.

             At a pretrial suppression hearing,.however, the deputies characterized differently what
     occurred at Barham's home. Deputy McNicol testified that after he contacted Barham, Barham

     acknowledged that he owned a firearm, and the deputies waited outside while Barham entered
     the home alone to retrieve the firearm. Deputy Montgomery testified that neither he nor Deputy

     McNicol entered the home to seize the firearm.            When questioned why his incident report

     differed from his testimony 14 months after the incident, Deputy Montgomery explained that his

     memory was more accurate at the hearing: It was a lapse of memory on mine. Thinking back
                                              "
     on it now, I remember. But at the time I wrote it,a mistake on my part."Clerk's Papers at 68-




      1 We use the minor's initials to protect his privacy.

                                                           2
No. 42938-
    11/  1-
No. 42958 6 II
          - -


         Because of these conflicting accounts, the prosecutor referred the matter to the Pierce

County Sheriff's Department.             Following an internal investigation, the State charged both

deputies with one count of first degree perjury, and the deputies were tried in a single

proceeding.

             Before trial,the parties asked prospective jurors to complete a questionnaire that was then

used in oral voir dire. Following jury selection, the trial court sealed the questionnaires without

objection.

             Because the State intended to call Barham to testify to the events at' his house, Deputies

McNicol and Montgomery sought to admit evidence of Barham's criminal history to undermine

his   credibility.       While the State agreed that Barham's 2003 felony drug conviction was

admissible under ER 609( ),
                       a it argued that Barham's March 2001 gross misdemeanor conviction

for attempted second degree possession of stolen property should not be admitted because it was
over 10 years - ld; and, it would be unfairly prejudicial because many venire members indicated
              o

that,   at    some   point, they   had filed   police reports   as   property crime victims. The trial court

excluded evidence of Barham's attempted second degree possession of stolen property

conviction because the conviction was older than 10 years, and it had ruled that the defense

could use Barham's drug conviction to attack his credibility.

             At   trial, Barham testified   to the   January 21, 2009    events.   He explained that after the

deputies arrived at his house, he, Deputy McNicol, and Resch walked to the bedroom to retrieve
the firearm. Once Deputy McNicol obtained the gun, Deputy Montgomery entered the house to

take the gun from Deputy McNicol and secure it.




                                                           3
No. 42938 1 II/
          - -
No. 42958 6 II
          - -

           Resch also testified that both    deputies   entered Barham's home. She recalled that once


Barham admitted to having the firearm in the house, the deputies immediately arrested him.

Then, one deputy entered the home and stood in the front room while the other went to the

bedroom with Resch to locate the firearm.


           Pierce County Detective Sergeant Ben Benson testified that it would be unacceptable for

deputies to direct a convicted felon and suspected drug user to enter his home, unattended and
outside of the      deputies' view, to   retrieve   a   firearm.   During Detective Sergeant Benson's

testimony, the State played a recording of Detective Sergeant Benson's interview of Deputy

Montgomery, including this exchange:

           Q Well, I mean without thinking that, you knew that what you were testifying to
           wasn't accurate. Correct?
           A The bottom line, yeah, cause here I had the report, and that's, wrote it,and
                                    `                                       I
           that's what I recall happening.
           Q And you testified to something different?
           A Yes.


Ex. 15 p. 7.

           Deputies McNicol and Montgomery testified that before the suppression hearing, they sat
outside the courtroom and reviewed Deputy Montgomery's incident report.                   Deputy McNicol

told Deputy Montgomery that they never entered the house and that they directed Barham to

retrieve the gun and bring it out to them. Deputy Montgomery testified that he trusted Deputy
McNicol's version of events          more     than his    own   memory and       incident report.   Deputy

Montgomery added that at the suppression hearing, he remembered not entering the home, but
now   at   trial,he could   not remember whether    they entered the home   or   not.
No.42938-
   11/  1-
No. 42958 6 II
          - -


       Deputy Montgomery explained that when he saw Deputy McNicol with the firearm

outside the home, he had assumed that Deputy McNicol had gone inside the home to retrieve it;

but, he later believed that Deputy McNicol had        not   actually   entered the home.       Deputy

Montgomery then testified that he had made at least four uncorrected mistakes in his incident

report when he twice indicated that Deputy McNicol had been inside the home and when he
twice indicated that he too had entered the home.


       Throughout trial proceedings, both defendants argued motions, offered and argued

evidence, participated in direct and cross -examination of witnesses, and raised objections. The

jury found both defendants guilty as charged. The defendants appeal in a consolidated case.
                                          ANALYSIS


                                I. SUFFICIENCY OF THE EVIDENCE


       Defendants first argue that the State failed to offer sufficient evidence to prove that they

committed perjury. We disagree.

                                     A. Standard of Review


       Sufficient evidence supports a conviction if any rational, trier of fact could find the

crime's essential elements beyond a reasonable doubt when viewing the evidence in the light

most favorable to the State. State v. Hosier, 157 Wn. d 1, 8, 133 P. d 936 (2006).An appellant
                                                    2              3

claiming insufficient evidence admits the truth of the State's evidence and all reasonable
inferences that can be drawn from the evidence. State v. Salinas, 119 Wn. d 192, 201, 829 P. d
                                                                        2                  2

1068 ( 1992). Circumstantial evidence and direct evidence          are   equally   reliable.   State v.


Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980).We defer to the trier of fact on issues of
                2                  2




                                                 E
No.42938 1 II/
         - -
No. 42958 6 II
          - -


conflicting testimony,     witness   credibility, and the persuasiveness of the evidence. State v.

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

                                                 B. Analysis

        A person is guilty of first degree perjury when "in any official proceeding he or she

makes a materially false statement which he or she knows to be false under an oath required or
authorized by law."
                  RCW 9A. 2. In addition, the State must present:
                      020.
                        7

                1. The testimony of at least one credible witness which is positive and
        directly contradictory of the defendant's oath; and
                2. Another such direct witness or independent evidence of corroborating
        circumstances of such a character as clearly to turn the scale and overcome the
        oath of the defendant and the legal presumption of his innocence.

State v. Olson, 92 Wn. d 134, 136, 594 P. d 1337 (1979).
                     2                  2

         The direct testimony required to support a perjury conviction " ust come `from someone
                                                                       m

in a position to know of his or her own experience that the facts sworn to by the defendant are
false. "'   State v. Singh, 167 Wn. App. 971, 976, 275 P. d 1156 (2012) quoting Nessman v.
                                                        3               (

Sumpter, 27 Wn. App. 18, 24, 615 P. d 522, review denied sub nom. State v. Howie, 94 Wn. d
                                  2                                                    2
             And
1021 ( 1980)).            the corroborating evidence "need not equal in weight the testimony of a'

second witness," it " ust be clear and positive and so strong that, with the evidence of the
               but m

witness who testifies directly to the falsity of the defendant's testimony, it will convince the jury

beyond      a   reasonable doubt." State   v.   Rutledge, 37   Wash. 523, 527, 79 P. 1123 (1905). The


defendant's admissions and contradictory statements, even though not made under oath, are

sufficient, given in corroboration of the single witness to satisfy the quantum of evidence

required to support a perjury conviction. State v. Buchanan, 79 Wn. d 740, 745, 489 P. d 744
                                                                  2                  2

1971).



                                                       301
No. 42938-
    11/  1-
No. 42958 6 II
          - -


       As a threshold matter, the testimony regarding whether the deputies entered the home

was material because this fact dictated the trial court's analysis of the legality of the deputies'

search of Barham's home and seizure of the firearm.     See e. .,
                                                             g State v. Ferrier, 136 Wn. d 103,
                                                                                       2

118, 960 P. d 927 (1998) holding that under article 1, section 7 of Washington Constitution,
          2              (

where police knock and request permission to enter and search one's home without a warrant,

they must advise the home dweller of her or his right to refuse the request or limit the search).

       Next, sufficient evidence supported the perjury convictions. Either Barham's or Resch's

testimony satisfied the first element, and either Barham's or Resch's testimony satisfied the

second element; and the jury instructions were clear that the jury had to use different evidence

for elements one and two. In addition, regarding Montgomery, his incident report also satisfied

element two.


       Barham testified that Deputy McNicol entered the home with him to retrieve the gun

from the bedroom. Resch testified that she took one of the deputies to the bedroom to retrieve

the firearm while   the other deputy stood in the front   room.   Though the details of these two

eyewitness accounts differ,the material facts are consistentthey both testified that the deputies
entered the home to seize Barham's firearm.


        Deputy Montgomery's incident report provides additional evidence to support Deputy

Montgomery's conviction. It twice indicated that Deputy McNicol had entered the home with

Barham to seize the gun and twice indicated that Deputy Montgomery had entered the home to

obtain the gun from Deputy McNicol. The incident report closely paralleled Barham's testimony

and directly contradicted the deputies' suppression hearing testimony in which they claimed to
have never entered Barham's home. And moreover, the jury heard the audio interview in which


                                                 7
No. 42938 1 II/
          - -
No. 42958 6 II
          - -


Deputy Montgomery admitted to testifying contrary to what he recalled actually happening at

Barham's residence.    Therefore, the jury heard additional evidence to conclude that Deputies

McNicol and Montgomery committed          perjury    at the   suppression hearing. See Rutledge, 37

Wash. at 527.


       Because the State's direct and corroborating evidence all demonstrated the material

issuethat the deputies entered Barham's home, ,contrary to their suppression hearing

testimonyit satisfied
         —              both   parts of the heightened sufficiency standard in perjury proceedings.
Accordingly, the State presented sufficient evidence from which the jury.could find that the

defendants knowingly made false statements that were material to the earlier case's outcome.
                     II. RIGHT TO CONFRONT AND CROSS -EXAMINE ACCUSER


       Next, the defendants argue that the trial court violated their right to confront and cross-

examine their accuser when it ruled that the defense could not admit evidence of Barham's 2001

conviction for attempted second degree possession of stolen property. Even assuming, without

deciding, that it was error, any error was harmless.

                                       A. Standard of Review


       We review a trial court's decision regarding the admissibility of prior conviction

evidence under ER 609 for abuse of discretion. State v..
                                                       Rivers, 129 Wn. d 697, 704 05, 921
                                                                     2            -

P. d 495 (1996).A trial court abuses its discretion when its ruling is manifestly unreasonable or
 2
when it exercises discretion on untenable or unreasonable grounds. State v. Bankston, 99 Wn.

App. 266, 268, 992 P. d 1041 (2000).
                    2

       Under ER 609( ) (b),
                   a and evidence that a witness has been convicted of a crime involving

dishonesty   is admissible to attack the witness's   credibility if   a   period   of less than 10 years has
No. 42938 1 II/
          - -
No. 42958 6 II
          - -


elapsed since the conviction date. State v. Jones, 117 Wn. App. 221, 231, 70 P. d 171 (2003).If
                                                                              3

more than 10 years has elapsed, however, under ER 609( ) evidence is not admissible unless
                                                     b the

the court determines, in the interest of justice, that the probative value of the conviction,

supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
Jones, 117 Wn. App. at 231. Any error regarding the admission or exclusion of prior conviction

evidence is harmless, however, if within reasonable probabilities, the trial outcome would not

have been materially different, had any error not occurred. State v. Gresham, 173 Wn. d 405,
                                                                                    2

433, 269 P. d 207 (2012). '
          3

                                              B. Analysis

         Here, on September 19, 2011, the defendants sought to admit evidence of Barham's
March 2001 conviction for        attempted second degree possession   of stolen property. Because


more than 10 years had elapsed since the conviction, the evidence was not automatically

admissible under ER 609( ) instead was only admissible if the trial court determined that the
                       b and

admission of the conviction was in the interest of justice and that the probative value

substantially outweighed potential prejudice. See Jones, 117 Wn. App. at 231.


2
    Under ER 609( ):
                b
         Evidence of a conviction under this rule is not admissible if a period of more than
          10 years has elapsed since the date of the conviction or of the release of the
          witness from the confinement imposed for that conviction, whichever is the later
          date, unless the court determines, in the interests of justice, that the probative
          value   of   the   conviction   supported by specific   facts   and   circumstances

          substantially outweighs its prejudicial effect. However, evidence of a conviction
          more than 10 years old as calculated herein, is not admissible unless the
          proponent gives to the adverse party sufficient advance written notice of intent to
          use such evidence to provide the adverse party with a fair opportunity to contest
          the use of such evidence.




                                                   6
No. 42938-
    11/  1-
No. 42958 6 II
          - -


          The trial court determined that the defendants could not admit Barham's gross

misdemeanor conviction because it was over 10 years old and because they were allowed to use

a prior drug conviction to impeach Barham. Even assuming it was error to exclude evidence of

the gross misdemeanor conviction, Deputies Montgomery and McNicol were allowed to impeach

Barham's credibility with the prior felony drug conviction. It is difficult to see, in light of this

impeachment evidence, how the trial outcome would have differed had the trial court admitted

Barham's gross misdemeanor conviction. Thus, even had the trial court erred, any error would
have been harmless.


                                        III. SEALED JURY QUESTIONNAIRES

          Next, the defendants both argue that the trial court deprived their and the public's open

and public trial right when it sealed the juror questionnaires without first performing a Bone-

Club analysis on the record. The trial court did not err in sealing the juror questionnaires.
          When a trial court allows parties to use juror questionnaires as a screening tool during

oral voir dire in open court, it need not perform a Bone Club analysis before later sealing those
                                                         -

questionnaires because the sealing does not constitute a courtroom closure implicating the public
trial   right.   State   v.   Beskurt, 176 Wn. d 441, 447 48, 293 P. d 1159 (2013). Here, potential
                                             2            -        3


jurors completed questionnaires later used during oral voir dire on the record in open court.

Following voir dire,             the   trial   court   sealed   the   questionnaires.   Because sealing juror

questionnaires used in oral voir dire does not constitute a courtroom closure implicating the




3
    State v. Bone Club, 128 Wn. d 254, 906 P. d 325 (1995).
                  -           2             2



                                                            10
No. 42938 1 II/
          - -
No. 42958 6 II
          - -


public trial right,the trial court had no obligation to perform a Bone Club analysis. Accordingly,
                                                                       -

the trial court did not err. See Beskurt, 176 Wn. d at 447 48.
                                                2          -

                                IV. INEFFECTIVE ASSISTANCE OF COUNSEL


       Finally, Deputy McNicol contends that defense counsel provided ineffective assistance

because he submitted no pretrial motions of his own, no written responses to the State's motions,

and no persuasive legal authority on critical issues now raised on appeal. Deputy McNicol does

not demonstrate ineffective assistance.

                                           A. Standard of Review


       To succeed on an ineffective assistance of counsel claim, the defendant must show that

1)counsel's conduct was deficient, or fell below an objective reasonableness 'standard; and (2)
the defendant   was   prejudiced   as a   result.   Strickland v. Washington, 466 U. . 668, 687, 104 S.
                                                                                   S

Ct. 2052, 80 L.Ed. 2d 674 (1984).Counsel is presumed to have acted reasonably unless shown

otherwise. State v. McFarland, 127 Wn. d 322, 335, 899 P. d 1251 (1995).To show prejudice,
                                     2                  2

the defendant must demonstrate reasonable probability that "but for counsel's unprofessional

errors, the result of the proceeding would have been different."
                                                               Strickland, 466 U. . at 694. If
                                                                                S

the ineffective assistance claim fails        on    one   prong,   we   need not address the other. State v.


Hendrickson, 129 Wn. d 61, 78, 917 P. d 563 (1996).We evaluate counsel's competency based
                   2                2

on the entire trial record. State v. Townsend, 142 Wn. d 838, 843, 15 P. d 145 (2001).
                                                     2                 3

                                                    B. Analysis

       Deputy McNicol's portrayal of defense counsel as grossly underperforming is inaccurate.

Defense counsel. filed an omnibus application seeking additional materials beyond what had

initially been supplied    in    discovery.     He argued motions before the trial court and cross-


                                                          11
No. 42938-
    11/  1-
No. 42958 6 II
          - -


examined state witnesses. He also presented Deputy McNicol's testimony, as well as an opening

statement and closing argument. Deputy McNicol asserts that defense counsel was ineffective

because he joined his codefendant's written motions instead of filing separate ones. Because the

State charged both defendants with the same crime stemming from the same conduct that arose

from the same event, it was not unreasonable for defense counsel to make the strategic decision

to decline to file his own pretrial motions which would have included nearly identical contents to

those of   Deputy Montgomery. Even assuming that it was objectively unreasonable, Deputy

McNicol cannot demonstrate how     filing separate   motions —containing   the same arguments and

law that the trial court rejected in Deputy Montgomery's motions would have resulted in a
                                                                 —

different outcome. Therefore, Deputy McNicol cannot prove resulting prejudice. Accordingly,

he cannot demonstrate ineffective assistance of counsel. See Strickland, 466 U. . at 687.
                                                                              S

       We affirm.


       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 in accordance with RCW

040,
2.6.it is so ordered.
 0




                                                                  Johanson, A. .
                                                                            J.
                                                                             C




                                                12
