IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                      No. 81037-5-I
                       Appellant,
                                                      DIVISION ONE
                v.
                                                      UNPUBLISHED OPINION
 CHRISTOPHER ISRAEL SAUNDERS,
 a/k/a CHRISTOPHER ISRALE
 SAUNDERS, KEVIN J. KELLOG,
 JASON MICHAEL MOHON, CHRIS
 ISRAEL SAUNDERS,

                       Respondent.


       APPELWICK, J. — Saunders appeals his conviction for failing to register as a

sex offender.    He claims his counsel was ineffective for failing to object to

prejudicial testimony and failing to move for dismissal of the case for insufficient

evidence. He further alleges the prosecutor committed flagrant and ill-intentioned

misconduct by suggesting the jury could convict him based on a failure to register

after the period for which he was charged.           He claims his right to a timely

arraignment and speedy trial were violated.           Last, he claims the trial court

improperly assessed LFOs against him. We reverse his conviction based on

ineffective assistance of counsel and decline to address his other arguments.

                                        FACTS

       On July 27, 2017, the State charged Christopher Saunders with one count

of failing to register as a sex offender. The State alleged that Saunders was in




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No. 81037-5-I/2


violation of his duty to register as a sex offender between June 22 and July 7.

RCW 9A.44.130(4)(a)(i) requires that a sex offender register within three business

days of release from custody. Saunders was incarcerated from June 7 to June 16,

2017. June 16, 2017 was a Friday. As a result, he was required to register no

later than June 21, 2017.

       Saunders denied the charge. He testified that he had registered with the

Pierce County Sheriff’s Department (PCSD) as required on June 19, 2017.

PCSD’s last recorded registration from Saunders occurred on June 1, 2017.

       The parties stipulated to Saunders’s duty to register and two prior

convictions for failing to register as a sex offender. The State called Sally Saxon,

Saunders’s community corrections officer, to testify. Saxon supervised Saunders

from February to June 2017.       She testified concerning the conditions of his

supervision, including that he be available to the Department of Corrections (DOC)

at all times, be monitored via global positioning system (GPS) technology, abide

by a curfew time, and not have contact with minors or go to places that minors

frequent. Saxon testified that Saunders did not comply with his GPS or curfew

requirements. She further testified that he would cut off his GPS monitor or allow

it to die. And, she testified that after June 16, he was rarely at his declared

residential address and instead moved around the Tacoma area, making it difficult

to track his movements. Saunders did not object to any of this testimony.

       During closing arguments, the prosecutor called attention to the fact that

Saunders also admitted to failing to register between July 7, 2017 and October




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2017. Notwithstanding that the State declined to charge Saunders with failing to

register during that time in the information, the prosecutor brought this up on two

separate occasions during closing argument. First, he stated,

       And I’ve just gone over that with you previously in regards to him not
       registering upon release from custody on the 16th of June and from
       his own testimony not registering at all between July and October
       when he was put back into custody again, and that during that time
       period, the defendant knowingly failed to comply with the
       requirement of Sex Offender Registration.


The prosecutor again pointed to this subsequent failure to register later in his

closing:

       Now, the defendant clearly did not register between June 22 and July
       7. And furthermore, we know from the testimony that he did not
       register from July until October.        He failed his registration
       requirement, and that’s very evident from the testimony you heard
       throughout this trial.


Saunders did not object to this line of argument.

       The jury found Saunders guilty as charged. Saunders appeals.

                                    DISCUSSION

       Saunders makes three arguments. First, he argues that his counsel was

ineffective for failing to object to prejudicial testimony from Saxon, failing to bring

a motion to dismiss for insufficient evidence, and failing to object to the State’s

improper arguments. Second, he argues that the prosecutor committed flagrant

and ill-intentioned misconduct by encouraging the jury to convict him based on

failure to register during a time period not charged in the information. Last, he




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argues that the trial court erred in assessing discretionary legal financial

obligations (LFOs) despite his indigency.

       In order to sustain a claim of ineffective assistance of counsel, Saunders

must show that his counsel’s performance fell below an objective standard of

reasonableness and he was thereby prejudiced. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We review ineffective

assistance of counsel claims de novo. State v. Rafay, 168 Wn. App. 734, 775, 285

P.3d 83 (2012).

   I. Deficient Performance

       Saunders claims his counsel was deficient in three respects: failing to object

to prejudicial testimony by Saxon, failing to object to the State’s inappropriate

closing argument, and failing to bring a motion to dismiss due to insufficient

evidence. We agree that counsel was deficient in the first two respects and decline

to address the motion to dismiss because it was not briefed.1

       A. Prejudicial Testimony

       Defense counsel failed to object to prejudicial testimony elicited from Saxon.

Specifically, Saxon testified that Saunders was not allowed contact with minors,

that he cut off his GPS monitor or allowed it to die, and that he was hardly ever at

his place of residence and instead traveled all around Tacoma.

       1An   appellate brief should contain argument supporting issues presented
for review, citations to legal authority, and references to relevant parts of the
record. RAP 10.3(a)(6). Saunders raises his argument that counsel was
ineffective for failing to bring a motion to dismiss in a header but does not develop
it further. We therefore decline to address it. See State v. Elliot, 114 Wn.2d 6, 15,
785 P.2d 440 (1990) (declining to consider a claim insufficiently argued by the
parties).


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       Irrelevant evidence is not admissible. ER 402. Evidence is relevant if it has

any tendency to make a fact of consequence more or less probable. ER 401.

Even relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice. ER 403. Evidence of other bad acts

is inadmissible to show the character of a person in order so show conformity

therewith. ER 404(b).

       Here, evidence that Saunders was prohibited from contacting minors is

irrelevant to whether he failed to register as a sex offender. The only issue was

whether or not Saunders registered as a sex offender. A prohibition on contact

with minors does not make that fact any more or less probable. That evidence

should have been excluded, and counsel’s failure to object was unreasonable

given its complete lack of relevance and highly prejudicial nature.

       Saunders testified that he completed a sex offender registration with PCSD

on June 19.     The State introduced testimony that PCSD had no record of

Saunders’s registering on that date. And, a PCSD employee testified that she

could not recall PCSD ever misplacing a registration. The State argues that

evidence of Saunders’s movements and actions on community custody after his

alleged failure to register was valid circumstantial evidence to show that the

absence of a record of registration was not due to mistake. It further argues that

the information was admissible to prove that Saunders’s subsequent actions and

failure to register were all a part of his “total absconsion” from DOC supervision.




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       This evidence does not show that Saunders failed to register.           His

noncompliance with community custody conditions could just as likely have taken

place whether or not he registered. And, the State’s “total absconsion” argument

seeks to utilize evidence that Saunders avoided DOC after June 19 to show he

was also avoiding DOC by failing to register on June 19. Evidence of bad character

or other bad acts to show conformity therewith is inadmissible under ER 404(b).

Had an objection been made, the trial court would not have allowed the evidence

for that purpose.

       In addition, this evidence was highly prejudicial. It implied that Saunders

was a child molester and was avoiding his monitoring to move freely about Tacoma

with no accountability, placing the community at risk. This would evoke a reaction

from the jury that Saunders was a present danger to children in the community.

       The State argues that counsel’s failure to object was a legitimate strategic

decision and therefore cannot be considered ineffective assistance of counsel. It

argues that objecting to the testimony would have served only to draw attention to

harmful but admissible evidence. The State’s argument presupposes that the

evidence would have been admissible. The State also argues that even if the

evidence was inadmissible, defense counsel’s decision not to object was valid

because it prevented juror speculation. These arguments are devoid of merit.

       We conclude that counsel’s failure to object to prejudicial testimony from

Saxon fell below an objective standard of reasonableness.




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   B. Improper Closing Arguments

      Saunders also argues that counsel was ineffective for failing to object to

improper closing argument from the prosecutor. He specifically objects to two

statements made by the prosecutor during closing. He first takes issue with the

following statement:

      And I’ve just gone over that with you previously in regards to him not
      registering upon release from custody on the 16th of June and from
      his own testimony not registering at all between July and October
      when he was put back into custody again, and that during that time
      period, the defendant knowingly failed to comply with the
      requirement of Sex Offender Registration.

He also takes issue with the following statement made later in closing:

      Now, the defendant clearly did not register between June 22 and July
      7. And furthermore, we know from the testimony that he did not
      register from July until October.        He failed his registration
      requirement, and that’s very evident from the testimony you heard
      throughout this trial.

       Saunders argues that these statements encouraged the jury to convict him

based on his failure to register as a sex offender between July and October 2017,

notwithstanding the fact that he was not charged for that time period in the

information.   The State argues that the prosecutor was merely pointing out

Saunders’s history of seeking to avoid supervision. The State’s argument was

improper, flagrant, and could not be cured by instruction to the jury. We see no

legitimate reason why defense counsel failed to object to this line of argument.

Counsel’s failure to object fell below an objective standard of reasonableness.




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   II. Prejudice

       To succeed on his ineffective assistance of counsel claim, Saunders must

show that there is a reasonable probability that the result of his trial would have

been different but for his counsel’s errors. State v. McFarland, 127 Wn.2d 322,

334-35, 899 P.2d 1251 (1995). He has met that burden here. Through the

admission of evidence of Saunders’s underlying offense, and his other violations

of supervision, the State was able to turn the trial into a referendum on that conduct

rather than on whether Saunders registered as he claimed on June 19. The jury

was likely more receptive to this argument because the State impermissibly implied

that he could be convicted because he had already admitted to not registering at

another time.

       The State argues that there is no prejudice here because there was

overwhelming evidence of his guilt.       The only evidence directly relevant to

Saunders’s claim that he had registered on June 19 is that PCSD had no record

of that registration and a PCSD employee said that she could not recall PCSD ever

misplacing a registration. The remaining evidence it points to, however, consists

mostly of other noncompliant behavior by Saunders offered to suggest he must

have acted the same way with respect to registration, including his admission that

he was avoiding law enforcement after his alleged failure to register with PCSD.

This is an impermissible method of attacking Saunders’s credibility. The evidence

against Saunders was not overwhelming. The overall evidence was Saunders’s




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testimony that he filled out the registration and the county’s testimony that it did

not have his registration.

       It is reasonably likely that but for counsel’s conduct, the result of the trial

would have been different.

       We therefore reverse and remand for a new trial.           Because we find

Saunders’s ineffective assistance of counsel argument appropriate grounds for

reversal, we decline to address his other arguments.




WE CONCUR:




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