                                                                                                       Fii=i
                                                                                              COURT,
                                                                                                        01F ,   UOP E L
                                                                                          2013 OCT 29 AV 9: 4.8
                                                                                          E




      IN THE COURT OF APPEALS OF THE STATE OF W

                                                 DIVISION II

STATE OF WASHINGTON,                                                           No. 433E


                                    Respondent,


         0



SHERRY M. HAVENS,                                                         UNPUBLISHED OPINION


                                    0


         JOHANSON, A. C. J. —       Sherry M. Havens appeals her jury trial conviction and sentence for

second   degree   burglary.'    The burglary charge was based on Havens' s attempt to shoplift at a

Wal -
    Mart     store after   having   previously been trespassed from the          store.   She argues that ( 1) the


jury instructions omitted an essential element by failing to require the State to prove that she

knew    she was not allowed on          the   premises when she      entered           Mart, ( 2) her offender
                                                                               the Wal -


score   erroneously included        a washed -
                                             out     class   C   felony   conviction,   and (   3)   her trial counsel


provided ineffective assistance of counsel in failing to conduct an adequate investigation and in

failing to request jury instructions related to a potential defense. Because. (1) Havens invited any

potential    instructional   error, (   2)    the record shows that the five -
                                                                             year wash -
                                                                                       out period was


interrupted by at least one misdemeanor conviction, and ( 3) Havens fails to show that further

investigation would have provided any evidence that would have helped her defense or that her

1
    RCW 9A. 52. 030.
No. 43 3 62 -1 - II



counsel' s choice to not pursue issues related to her potential defense was not a reasonable

tactical decision, we affirm.


                                                           FACTS


          On August 7, 2009, Havens was served with a trespass notice prohibiting her from

entering the Wal -Mart in Shelton. Despite this, she returned to the Shelton Wal -
                                                                                 Mart on August

18,   2011.        Observing       suspicious     behavior, an asset protection associate followed Havens


throughout the store and then stopped her as she approached the exit doors with her cart


containing     several    items for        which    she   had     not    paid.      Because Wal -
                                                                                                Mart had previously

trespassed Havens, the State charged her with second degree burglary.

                                                        I. STIPULATION


          Shortly before her February 2012 trial, the parties discussed Havens' s agreement to

stipulate   to the    existence      of   the trespass    notice.       Havens'    s   counsel   originally   agreed   that ( 1)



Havens would stipulate that Wal -Mart had notified her that she had been trespassed from the

            Mart property, ( 2)
Shelton Wal -                               she   had   received       this   notice, (   3) " therefore it was unlawful for


her to   enter,"   and ( 4)   "   she was aware of   the   order."      Verbatim Report of Proceedings ( VRP) at 2-


3.


          A short time later, the following colloquy occurred:

                      STATE]: ...           I was speaking with [ Havens' s counsel] regarding the
          stipulation,    and      apparently there is          a —   going to be a defense, which I don' t
          recall —    I don' t have the Consolidated Omnibus Order in front of me.
                      DEFENSE COUNSEL]: No, I— there'                         s no defense. I' m just saying as to
          that stipulation—


                      the     second —the     last line    of   the   stipulation, [ that    " she was aware of the
          order "]    I don' t believe Ms. Havens          can agree      to.    We would stipulate that she has
          been served with a trespass notice and that she signed for it, and therefore, her



                                                                 2
No. 43362 -1 - II



                       Mart was unlawful. That, we will stipulate to, but Mr. —
        entry into Wal -                                                          the last
        sentence of —I don' t —you can read it to the Court. I don' t think Ms. Havens is

        agreeing to that last sentence.
                    STATE]:        Well      what   my    point     is, is that apparently there      was [ an]

        allegation that Ms. Havens has suffered some kind of head injury where she
        don'   t —she   doesn' t remember the fact that she has been trespassed from Wal-
        Mart.       And that sounds suspiciously close to the State as diminished capacity,
        but —
                    DEFENSE COUNSEL]:                    Well, we' re stipulating that she was there
        unlawfully. I mean, that' s — it' s correct that Ms. Havens —
              THE COURT:          I' m going to stop you right now.                       If you agree on a
        stipulation and the Court approves it, fine, but I' m not going to hash it out at this
        point, with interjecting the Court into something that the two sides need to be able
        to agree on first.
                    STATE]:      This is      above and   beyond the     stipulation,    Your Honor. I mean

        I' ll clearly take out the last sentence, but what I' m concerned about is if Ms.
        Havens testifies.        If   she   testifies that    she — regardless   of the stipulation, how do
        we prove that she' d been trespassed but she didn' t remember being trespassed
        because [ of] some kind of head injury. And that' s a defense, Your Honor, that the
        State believes is basically a diminished capacity defense. And there is absolutely
        no medical evidence as far as the State knows, to show this, and the State believes
        that the diminished capacity defense is you have to have some kind of medical
        testimony.      So, the State'       s—   what the State' s asking the Court is to prevent this
        from coming       out.   This is —you know, I           appreciate [   defense   counsel],   you know,
        his candor, his being an officer of the court and informing me.
                    THE COURT: [ Defense counsel]?
                    DEFENSE COUNSEL]:           Your Honor, I have no intention of going into
        Ms.     Havens' [ s]     head injury or the fact that she doesn' t remember being
        trespassed.      We' re stipulating —we           are stipulating that she was trespassed and
        that therefore her entry into Wal -Mart was unlawful.
                 STATE] : Okay.
                    DEFENSE COUNSEL]:                   Our defense is     not   diminished capacity.      Our
        defense is      that she      did   not commit       the crime of shoplifting.      She didn' t do it.
        That' s our defense.


                    THE COURT:              Alright.   The Court has also looked at the Consolidated
         Omnibus Order and the defenses that were checked, actually just one, the general
         denial.


VRP at 11 - 13 ( emphasis added).


         Ultimately, Havens agreed to and the jury was provided with the following stipulation:




                                                                3
No. 43362 -1 - II



                    The     parties agree and stipulate as          follows:     The defendant, Sherry Havens,
        has been         served    with    a   trespass    notice   on   August 7, 2009[,]        from the Shelton
         Walmart [ sic],         prohibiting her from lawfully entering the premises.

Clerk' s Papers ( CP) at 21.


                                                          II. TESTIMONY


         At trial, Wal -
                       Mart asset protection associates testified that they had observed Havens

wander around the store for some time, place unpaid for items in a Wal -Mart bag, walk past the

cash registers, and prepare to leave the store with the cart containing the unpaid for items. None

of the items in the bag or the cart had security tags that would have set off the security system if

Havens had         passed      through the     exit    doors.   They stopped her as she approached the exit doors

with the cart and the doors were opening.

         Havens testified that she entered the store to exchange some underwear she had


previously purchased and to shop for some items while her son was at a nearby football practice

and   that   she   did   not attempt      to leave the      store with     any   unpaid   for   merchandise.        Instead, she


asserted that she had parked her shopping cart near the exit doors and then briefly stepped

outside, without         the   cart, when she      thought      she saw   her   son outside     the   store.   She also testified


that the asset protection associate stopped her after she came back into the store, not as she was


trying to leave the store.

         Defense counsel then asked Havens about her prior 2003 and 2004 third degree theft

convictions and " some            kind    of   theft   charge   in June" 2011.      VRP    at   55.    Havens acknowledged


these   convictions.           But when the State attempted to cross -examine her about a June 2003


conviction, Havens responded:




                                                                    0
No. 43362 -1 - II



                        I don' t   recall, and       the —I      don' t recall a day or remember any of that. I had
            a]     head trauma which the other lady at Wal -Mart brought my file out and
           showed me, asked me                  if that     was   my   signature, which recalls     that —and    it was my
           signature, which she recalled me that I was kicked out of Wal -
                                                                         Mart, but at August
            sic]   I didn' t   recall —        remember that I was kicked out of Wal -Mart.

VRP   at    56 (   emphasis added).                 Havens also testified that she did not " recall" the 2003 or 2004

thefts, stating that she didn' t " have very                      much   memory ...      from April, 2011       and   back."   VRP at


0

                                                                 III. JUROR NOTE


           After Havens' s testimony, the trial court advised the parties that a juror sent out a note

explaining that he was a retired registered nurse and had had " personal experience" with head

injuries. VRP           at   76. The juror'         s note stated, "     I realize this has not been introduced, parentheses,


head injuries,          parenthesis, as evidence and your                   instructions may    cover   this.   I wanted you to be


aware."      VRP at 76.


            Defense counsel responded:


                        I think that'      s   fine.    I don' t think it requires any action. We' re aware of it.
            The State]         and    I knew that          we —all along that Ms. Havens suffered a serious

            head    injury     in April        We chose not to put on a diminished capacity
                                               of   last    year.

            defense because our defense is she didn' t do it, not she did it andfor some reason
            didn'   t   know    what she was               doing.     She didn' t do it, is   our   defense.    So, it' s not

            really      germane.      It   came        up   a   little bit in the            examination scenario where
                                                                                    cross[ - ]


            the State] was trying to pin her down and she said she didn' t remember, she had
            had a car accident. But, I don' t think it calls for any action on our part.

VRP    at   76 -77 ( emphasis         added).          The parties ultimately agreed that the court did not need to take

 any action addressing the juror' s note.




                                                                           5
No. 43362 -1 - II



                                                   IV. JURY INSTRUCTIONS


          Defense counsel did not offer any instructions or object to any of the State' s proposed

instructions.       The     jury   instructions ( 1)     instructed the jury on the definition of second degree

burglary, including that the defendant had to enter or remain unlawfully with intent to commit a
         2(                                              3
crime,        2) defined the term unlawfully,                and ( 3) included a to convict instruction that reiterated


the second degree burglary definitional instruction. None of the trial court' s instructions told the

jury that Havens had to be aware she was entering the Wal -
                                                          Mart unlawfully.

                                        V. CLOSING ARGUMENT AND VERDICT


          In its closing argument, the State argued:

                     Let'   s start off with [ element] number (            1).   On or about August 18, 2011,
          the     defendant        entered   or    remained      unlawfully in       a     building.       There was a
          stipulation       that   was read   to   you   by    the judge,   entered      into by all     the           by
                                                                                                               parties —


          the parties, the State and by the defense, and that stipulation said that Ms. Havens
                                       Mart in August
          had been trespassed from Wal -                                     of   2009.       August 9, 2009.       So, by
          her entering, her entering              was unlawful      in 2011.      She had been trespassed.            She

          was told by Wal -Mart you can no longer come back here. It was a legal trespass.
          By     coming back,       she entered     unlawfully. This        element      is   not   in dispute.   That has
          been proved beyond a reasonable doubt.




2
    Instruction 6 stated:
                     A person commits the crime of burglary in the second degree when he or
              she enters or remains unlawfully in a building with intent to commit a crime
              against a person or property therein.
CP at 30 ( emphasis added).


3 Instruction 9 stated:
                     A person enters or remains unlawfully in or upon premises when he or she
              is not licensed, invited, or otherwise privileged to so enter or remain.
 CP at 33.




                                                                    3
No. 43362 -1 - II



VRP   at    108 -09 (   emphasis   added).   The State further argued that the " crux of this casd' was


whether Havens entered the store with intent to commit a theft or formed that intent while inside.

VRP at 109. Havens did not object to the State's closing argument.

        Similarly, Havens's closing argument focused on whether the State had proven that she

had entered the store with intent to shoplift. Havens never mentioned the head injury or disputed

that she had unlawfully entered the store.

        The    jury     found Havens guilty     of   second   degree    burglary.    The case proceeded to


sentencing.


                                               VI. SENTENCING


        At the sentencing hearing, the State asserted that Havens had the following prior felony

convictions: (   1) a second degree burglary conviction for a November 20, 2004 burglary, which

was sentenced on March 14, 2005; and ( 2) two unlawful possession of a controlled substance


convictions for possession on May 23, 2005, which were sentenced July 18, 2005. Conceding

that the two drug offenses were same criminal conduct, the State asked the trial court to sentence

Havens with an offender score of 3 ( one point for the two drug convictions and two points for the

previous burglary conviction).

           The State further noted that Havens also had "a fairly extensive history of misdemeanor

convictions going back to 2003, which included additional shoplifting and /or third degree theft

convictions and several       driving   related offenses.   VRP   at   126.   The trial court record contains a




                                                        7
No. 43362 -1 - II




JIS4 report detailing Havens' s criminal history that includes an August 2009 conviction for first

degree      criminal        trespass.       Defense counsel responded that Havens did not " contest the accuracy

of   the State'   s recitation of            the   history,"                       range sentence.
                                                               and requested a mid -                    VRP    at   128.   The


State requested a sentence at the top end of the standard sentencing range.

            The trial court sentenced Havens with an offender score of three. Noting that Havens had

several shoplifting or third degree theft convictions in addition to her felony criminal history, it

sentenced      her to            a    high -
                                           end     standard    range   sentence.      Havens appeals her conviction and


sentence.



                                                                ANALYSIS


                                                 I. JURY INSTRUCTIONS: INVITED ERROR


            Havens first argues that the trial court failed to instruct the jury that it had to find she

knew that she had been trespassed from Wal -
                                           Mart when she entered the premises, that the


court' s failure to do so relieved the State of its burden to prove every element of the offense, and

that the total      omission of             the    element requires automatic reversal.       Assuming, but not deciding,

that Havens' s knowledge of the trespass notice at the time she entered the Wal -
                                                                                Mart was an

element, we hold that Havens invited this instructional error and reject this argument.


             Under the doctrine of invited error, counsel cannot set up an error at trial and then

complain       of   it      on       appeal. [    We] will deem an error waived if the party asserting such error


4
    A JIS   report     is   generated        from the Judicial Information System database,         which "`   is the primary
information         system            for   courts   in Washington'        and `   serves as a statewide clearinghouse for
criminal      history        information. "'         State v. Hunley, 175 Wn.2d 901, 911 n.4, 287 P.3d 584 ( 2012)
                       Pers. Restraint ofAdolph, 170 Wn.2d 556, 569 -70, 243 P. 3d 540 ( 2010)).                      The JIS
    quoting In    re

report here was attached to Havens' s August 19, 2011 indigency screening form.




                                                                       8
No. 43362 -1 - II




materially      contributed        thereto."   In    re   Dependency     of K.R., 128 Wn.2d 129, 147, 904 P. 2d 1132


 1995) ( citing State            v.   Pam, 101 Wn.2d 507, 511, 680 P. 2d 762 ( 1984),                    overruled on         other




grounds       in State     v.   Olson, 126 Wn.2d 315, 893 P. 2d 629 ( 1995)). "                 The invited error doctrine


prevents parties from benefiting from any error they caused at trial regardless of whether it was

done    intentionally       or    unintentionally.        The doctrine has been applied to errors of constitutional


magnitude, including where an offense element was omitted from the ` to convict instruction."'

State   v.   Recuenco, 154 Wn.2d 156, 163, 110 P. 3d 188 ( 2005) (                    citing City ofSeattle v. Patu, 147

Wn.2d 717, 720, 58 P. 3d 273 ( 2002)),                    rev' d on other grounds by Washington v. Recuenco, 548

U.S. 212, 126 S. Ct. 2546, 165 L. Ed. 2d 466 ( 2006)).                           The invited    error    doctrine is   a "`   strict




rule' to be applied in every situation where the defendant' s actions at least in part cause[ d] the

error."      State   v.   Summers, 107 Wn.           App.   373, 381 -82, 28 P. 3d 780, 43 P. 3d 526 ( 2001) ( quoting


State v. Studd, 137 Wn.2d 533, 547, 973 P. 2d 1049 ( 1999)).


             To be guilty of second degree burglary, RCW 9A.52.030( 1) requires only that the person

 1)   enter or remain           unlawfully in    a   building   other   than   a vehicle or a   dwelling, ( 2) with intent to

commit a crime against a person or                   property therein. It does not contain an express requirement


that the      defendant know the entry              was unlawful.       Here, it was undisputed and Havens stipulated


that    she    entered     the Wal -
                                   Mart unlawfully.               Havens' s defense focused solely on the second

element,       intent to        commit a crime       inside.    In support of her defense, Havens testified that she


neither shoplifted nor intended to shoplift inside the Wal -
                                                           Mart; instead, she had merely parked

her    cart   inside the        store while she went outside        to   see whether   her   son   had   arrived.   The store' s


 security     guards testified to the          contrary.     The jury decided which witnesses they found credible

 and found Havens guilty based on the security guard' s testimony.



                                                                   E
No. 43362- 1- 11




         Havens did not offer any jury instructions, requiring the jury to find a third non -statutory

second degree burglary element that she knew she had been forbidden to enter the store; nor did

she object to the trial court' s failure to include such an element in the to convict instruction.

Thus, she materially contributed to any potential error by ( 1) failing to afford the trial court an

opportunity to     cure   any   error with an additional             instruction, ( 2)   repeatedly assuring the State and

the trial court that she was not disputing that she entered Wal - art unlawfully, and ( 3) not
                                                                M

            when    the State      argued     in closing that her           unlawful     entry   was not at     issue.    Because
objecting

                                                                                                                                   5
Havens invited this       error,   if any,   she   has   waived      this   argument, and we      do   not   further   address   it.


                                                    II. OFFENDER SCORE


         Havens next argues that the trial court should not have included the 2005 class C felony

drug conviction in her offender score because the State failed to allege or prove the facts or

convictions necessary to establish that 2005 felony conviction had not washed out of her

offender score under       RCW 9. 94A. 525( 2)( c).            6 We disagree.




5 At our request, the parties filed supplemental briefing addressing whether invited error applied
here.    Havens     responds       that    the   error   here       was "   arguably invited, given counsel' s repeated
assurances that Ms. Haven' s [ sic] knowledge of the trespass order would not be at issue at trial."
Appellant' s Suppl. Br. at 3. But she contends that if the error was invited, her trial counsel was
ineffective in     failing   to    fully   investigate         or   pursue "   a mental health defense relating to the
trespass   notice."   Appellant'      s    Suppl. Br.     at   4.    We address the ineffective assistance of counsel
claim below.

6
    RCW 9. 94A.525( 2)( c) provides:
         Except as provided in (e) of this subsection, class C prior felony convictions other
         than sex offenses shall not be included in the offender score if, since the last date
         of release from confinement (including full -time residential treatment) pursuant to
          a felony conviction, if any, or entry of judgment and sentence, the offender had
           spent five consecutive years in the community without committing any crime that
           subsequently results in a conviction.



                                                                     10
No. 43362 -1 - II




             First, Havens affirmatively acknowledged at the sentencing hearing that the State' s

criminal       history      and    offender       score     calculations     were   correct,     and   this     affirmative




acknowledgement satisfies the Sentencing Reform Act requirements; no further proof of these

convictions       is   required.   State   v.   Bergstrom, 162 Wn.2d 87, 94, 169 P. 3d 816 ( 2007);                see also




State   v.   Ross, 152 Wn.2d 220, 233, 95 P. 3d 1225 ( 2004) (                citing State v. Ford, 137 Wn.2d 472,

482 -83, 973 P. 2d 452 ( 1999)).                Second, although Havens is correct that she cannot agree to a


sentence in excess of what is statutorily authorized or waive a challenge to a miscalculated

offender score if that error is an error of law, she fails to establish that her sentence is in excess
                                                                                                                       8
of what       is statutorily   authorized or       that   her   offender score   is incorrect.   The JIS      report       in the


court record clearly establishes that Havens had at least one misdemeanor offense ( an August

2009 first degree criminal trespass conviction) that interrupted the five -
                                                                          year period after her

conviction on the class C offense. Additionally, the State discussed Havens' s prior misdemeanor

history at the sentencing hearing and the trial court referred to several specific misdemeanor



7 The Bergstrom court stated:
        I] f the State alleges the existence of prior convictions and the defense not only
             fails to specifically object but agrees with the State' s depiction of the defendant' s
             criminal history; then the defendant 'waives the right to challenge the criminal
             history after sentence is imposed. In re Pers. Restraint of Goodwin, 146 Wn.2d
             861, 874, 50 P. 3d 618 ( 2002). . . .    Sentencing courts can rely on defense
             acknowledgment         of   prior    convictions      without   further   proof.     Former RCW
             9. 94A. 530( 2) ( 2002); [    In re Pers. Restraint of] Cadwallader, 155 Wn.2d [ 867,]
             873, 123 P. 3d 456 [( 2005)].
 162 Wn.2d at 94.

 8
 Although a JIS report is not the " best evidence" of a prior conviction, our Supreme Court has
held that such documentation is sufficient when the defendant does not object to it. See Hunley,
 175 Wn.2d at 910 -11.




                                                                  11
No. 433 62 -1 - II


                                                                                                                                    9
offenses        at     sentencing,      so    the   record    demonstrates          that    the   court   considered   the   JIS.

                                                                        10
Accordingly,           Havens'   s   sentencing     argument   fails.


                                       III. NO INEFFECTIVE ASSISTANCE OF COUNSEL


              Havens next argues that her trial counsel provided ineffective assistance of counsel in

failing to investigate and in failing to offer certain instructions. We disagree.

              Both the Sixth Amendment to the United States Constitution and article I, section 22 of

the   Washington            Constitution        guarantee      the   right     to    effective     representation.      State   v.


Hendrickson, 129 Wn.2d 61, 77, 917 P. 2d 563 ( 1996).                           To demonstrate ineffective assistance of


counsel, Havens must show ( 1) her counsel' s performance was objectively unreasonable; and ( 2)

the deficient          performance prejudiced          her defense.          State v. Jeffries, 105 Wn.2d 398, 418, 717


P. 2d 722 ( citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
 1984)),       cent.   denied, 479 U. S. 922 ( 1986)..         The appellant bears the burden of proving both parts,

and   failure to        establish either part        defeats the ineffective         assistance    of counsel claim.    Jeffries,




9 Cadwallader, 155 Wn.2d at 874 ( defendants cannot agree to sentences that exceed the court' s
statutory authority);            Goodwin, 146 Wn.2d at 874 ( defendant cannot waive a sentencing error
when the error is a legal error resulting in an excessive sentence).

 io Furthermore, even assuming the State had the burden to prove that the class C felony did not
wash out, Havens has not shown that the State would be unable to present additional evidence
were we to remand for resentencing. Havens did not object to the State' s characterization of her
criminal history or offender score but, even if remand was required, an evidentiary hearing on
remand for resentencing would be appropriate because she failed to specifically object to the
 State'   s    evidence     on   the   existence      of   a prior   conviction.           See Bergstrom, 162 Wn.2d at 93;
 Cadwallader, 155 Wn.2d                 at   878.   Because the record here contains evidence establishing that the
 five -
      year            out
                 wash -          period      was     interrupted by several misdemeanor convictions, we can
 determine on the record before us that the class C felony did not wash out of Havens' s offender
 score; thus remand for resentencing would be a waste of judicial resources.




                                                                     12
No. 43362 -1 - II



105 Wn.2d       at   418 ( citing Strickland, 466 U. S.           at   687). Counsel' s legitimate tactical decisions do


not constitute ineffective assistance of counsel. State v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260

 2011).


                                                        A. Investigation


            Havens first contends that her trial counsel provided ineffective assistance of counsel in

failing   to   conduct an adequate        investigation into her ( Havens'            s)   alleged    head   injury.      She asserts


that   an   investigation        could   have   resulted     in   a potential "    defense"      or   supported     a "   mitigating


factor that      could      have been      presented      during        plea   negotiations    or     at   sentencing."       Br. of


Appellant at 16.


            Defense counsel has a duty to conduct a reasonable investigation. In re Pers. Restraint of

Elmore, 162 Wn.2d 236, 252, 172 P. 3d 335 ( 2007) ( citing Strickland, 466 U. S.                                       at   691).    A


defendant seeking relief under a failure to investigate theory " must show a reasonable likelihood

that the investigation would have produced useful information not already known to defendant' s

trial counsel."        In   re   Pers. Restraint of Davis, 152 Wn.2d 647, 739, 101 P. 3d 1 ( 2004).                                 But


Havens has not established that further investigation would have likely uncovered additional

evidence related        to her    alleged   head    injury   that      would   have   assisted   in her     case.   Havens' s bare


assertion that additional investigation would have uncovered useful evidence that could have

been helpful is speculative and is insufficient to establish that counsel was deficient for failing to

investigate. i i




     If additional evidence exists supporting this claim, then Havens may produce that evidence in
 a   personal    restraint petition.      State    v.   McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251 ( 1995)




                                                                       13
No. 43362 -1 - II



                                                       B. Instructions


        Finally,      Havens    argues      that     her trial    counsel       was    ineffective for        failing   to "   seek




instructions outlining [ her] defense."               Br.   of   Appellant      at   17.    It is not clear from Havens' s


briefing whether she is claiming that her counsel should have offered instructions on a

diminished capacity defense or whether she is asserting that her counsel should have offered

instructions stating that Havens had to know that                     she was                    Mart unlawfully. In
                                                                                entering the Wal -


either case, this argument fails.


        First, to the extent she is arguing that counsel should have requested a diminished

capacity defense instruction, Havens must show that she would have been entitled to such an

instruction if     counsel   had     offered   it.   State v. Cienfuegos, 144 Wn.2d 222, 227, 25 P. 3d 1011


 2001). "    Diminished capacity is a mental disorder not amounting to insanity that impairs the

defendant'    s   ability to form the     culpable mental state          to   commit       the   crime."   State v. Harris, 122


Wn.   App.    498, 506, 94 P. 3d 379 ( 2004) (           citing State v. Atsbeha, 142 Wn.2d 904, 914, 16 P. 3d

626 ( 2001)).       A defendant is entitled to .a diminished capacity instruction when she produces

expert testimony establishing that she suffered from a mental disorder and that the evidence

 logically and reasonably connects the defendant' s alleged mental condition with the inability to

possess     the   required   level   of   culpability to     commit      the crime         charged."       State v. Griffin, 100


Wn.2d 417, 419, 670 P. 2d 265 ( 1983); see also Cienfuegos, 144 Wn.2d at 227; State v. Ellis, 136


Wn2d 498, 521 -22, 963 P. 2d 843 ( 1998).




   If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing
trial record, the appropriate means of doing so is through a personal restraint petition. ").




                                                                 14
No. 43362- 1- 11




          The evidence in this record does not support a diminished capacity instruction. Although

Havens testified that she had memory problems following an April 2011 accident, there was no

expert testimony establishing that she suffered from a mental disorder that was related to her

ability to form the necessary intent for committing the                     charged   crime.   Thus, on this record,


Havens has not established that she would have been entitled to a diminished capacity instruction
                                12
if one had been     offered.




          Second, to the extent she is arguing that her counsel should have offered jury instructions

stating that Havens had to know that her entry into Wal - art was unlawful, assuming but not
                                                        M

deciding that this is a correct statement of the law, Havens fails to show the absence of legitimate
strategic or tactical reasons supporting counsel' s conduct. Havens' s counsel repeatedly stated at

trial that the defense theory was that Havens was not attempting to shoplift; and the record does

not show that there was any evidence other than Havens' s bare assertions that she had suffered a

head              that                her from remembering            she   was   trespassed            Mart.
                                                                                               from Wal =       Had
         injury          prevented




counsel also pursued a defense based on Havens' s head injury causing her to not realize she was

entering the Wal -Mart unlawfully, the State could have chosen to ask the trial court for a lesser
included instruction       on    theft.    Without additional evidence regarding Havens' s head injury, both

defenses    would    have      relied on   the   jury' s   credibility determinations. Under these circumstances,


 it   was reasonable     for   counsel    to   choose an all or   nothing defense.    Because this was a reasonable




 12
      Again, if additional evidence exists supporting this claim, then Havens may produce that
 evidence in a personal restraint petition. McFarland, 127 Wn.2d at 335.




                                                                 15
No. 43362 -1 - II



tactical decision, this   argument also   fails. Grier, 171 Wn.2d   at   43 ( " all or nothing strategy" can


be a reasonable tactical decision).


        Accordingly, 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

2. 06. 040, it is so ordered.




                                                                             Johanson,




                                                    7
