      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                                                 No. 72168-2-1
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ANDREW WILLIAM DEMPSEY,                                                                    o~-
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                      Appellant.                 FILED: September 28, 2015


       Dwyer, J. — Andrew Dempsey appeals from the judgment entered on the

jury's verdict finding him guilty ofattempted rape of a child in the second degree
and violation of the Uniform Controlled Substances Act, chapter 69.50 RCW.

Dempsey claims that the trial court erred in the manner in which it instructed the
jury on reasonable doubt and by not removing a juror who stared at Dempsey
and his counsel during closing arguments. Dempsey also claims that he

received ineffective assistance of counsel at trial. Finding no error, we affirm.



       On October 3, 2012, the State charged Andrew Dempsey with count 1,

attempted rape in the second degree, and count 2, violation ofthe Uniform
Controlled Substances Act, for felonious possession of methamphetamine. Prior

to trial, the State moved to amend count 1 to attempted rape of a child in the
No. 72168-2-1/2



second degree. The trial court granted the motion. Dempsey pleaded not guilty

to both charges. The evidence presented at trial is summarized as follows.

       On September 29, 2012, 11 year-old J.M. went shopping with his mother

and two sisters at an Albertson's store in Burien. J.M. went by himself to use the

men's restroom. The restrooms are located adjacent to an employee break

room. The restroom has two urinals and two individual stalls. The light in the

men's restroom is activated by a motion sensor.

       J.M. testified that, when he entered the restroom, the light was turned off

and it smelled like cigarettes. The light eventually turned on and he proceeded to

use one of the stalls. After J.M. emerged from the stall, he had a "bad feeling,"

heard a door slam behind him, and turned to see Dempsey "charging" at him.

J.M. could see that Dempsey's pants were down and his penis was "a little bit

straight     Ithink it was erected." Dempsey grabbed J.M. from behind, placed
his hand over his mouth, put him in a headlock, and threatened to kill him. J.M.

told Dempsey, "Okay, okay, stop. I'll do whatever you want, however you want

me to do [it]." The two struggled for some time before store employees heard

J.M. cry for help.

       In addition to J.M.'s account of the incident, the jury heard testimony from

several store employees who responded to the incident, including Teasha Ward,

Barbara Kailstrom, Terrie Carlson, and Laurissa Engelhardt.

       Ward testified that she was on her way to the break room when she heard

several cries for help. Kailstrom and Carlson, who were in the break room, heard
No. 72168-2-1/3



"banging" and "some rustling around." Carlson went to the women's restroom

and Ward went to the men's restroom to investigate.

        When Ward opened the door, she saw Dempsey, with his pants down to

his ankles and his arms around J.M's neck. She could not see Dempsey's penis.

Ward then asked Dempsey, "What the fuck are you doing?" Dempsey looked

confused and did not respond. J.M. said to Ward, "Help me, he's hurting me."

Dempsey let go of J.M. and he ran out of the restroom, yelling "[Dempsey's]

trying to kill me, [Dempsey's] trying to kill me." Ward yelled from the bathroom

that Dempsey was trying to rape J.M.

        Engelhardt testified that she saw J.M. running from the bathroom so she
accompanied him to the self-check-out area, far away from the bathroom.
Several people telephoned 911. While Engelhardt was waiting with J.M. for the
police to arrive, she observed that he became increasingly upset, looked toward
the bathroom, and said, "[Dempsey's] going to kill me, [Dempsey's] going to kill
me." It was in the self-check-out area that J.M. was reunited with his family.

        Kailstrom and Carlson saw Dempsey emerge from the bathroom a short

time later. He was carrying a backpack with him. Kailstrom testified that as

Dempsey exited the restroom he looked "sheepish," was walking "very slow[ly],"
and appeared to be zipping orfastening his pants. Carlson, whose three
brothers are addicts, described Dempsey as "higher than a kite" with dialated

eyes.

        As Dempsey started to make his way toward an exit, he was approached
by the manager, who told Dempsey that he could not leave the store. Dempsey

                                         -3-
No. 72168-2-1/4



resisted. Several employees assisted in wrestling Dempsey to the ground.

Dempsey bit one employee. In all the commotion, some of the items in

Dempsey's bag were scattered on the floor, including several hypodermic

needles. Store employees remained on top of Dempsey until the police arrived.

       Shawna Miller, a store customer and a Department of Social and Health

Services children's administration program manager, was one of the several

people who telephoned 911. Miller was with J.M. and his family when she spoke

with the 911 dispatcher. She testified that she was not asked to provide a

statement to police until January 2013, and that "the details [of the incident] are

muddled in some ways." However, she recalled seeing J.M. "extremely upset,

and distressed, and emotional" upon being reunited with his mother. Moreover,

based on her training in chemical dependency and her experience in observing

people under the influence of various substances, Miller described Dempsey as
"intoxicated." She testified that her opinion was based on Dempsey's "actions

and demeanor," describing that:

       He appeared disorganized. He appeared that his clothes
       were in various states of undress. His pants were down. He was
       thrashing around and struggling against four people holding him
       down, which is not typical of a person who is stone-cold sober. So I
       would expect a person who was not under the influence would be
       still, and be explaining what was going on rather than fighting
       against, you know, adult men holding him down. Those
       were the indicators.

She opined that such behavior is consistent with methamphetamine use.
       In addition to the accounts of store employees and customer Shawna

Miller, the jury heard testimony from several law enforcement officers who were
No. 72168-2-1/5



involved in responding to the incident including Deputies Benjamin Miller and

Robin Ostrum, and Detectives Christine Elias and Marylisa Priebe-Olson.

      Deputy Miller was the first officer to arrive at the scene. Upon arrival, he

saw that Dempsey was being held by several employees who were physically

piled on top of Dempsey in order to prevent him from leaving. Miller handcuffed
Dempsey and conducted a pat-down to check him for weapons. When Miller
rolled Dempsey to his side, he could see that his pants were undone and his
zipper was all the way down. It was apparent to Miller that Dempsey was not
wearing underwear because he "could see [Dempsey's] pubic hair and part of his
penis."

          Deputy Ostrum next arrived on the scene. She and Miller escorted
Dempsey to a patrol car. Miller then transported Dempsey to the police station.
Ostrum testified that Dempsey's appearance was consistent with the homeless
population as well as "some" meth addicts and users. However, Dempsey did
not exhibit any "hyper vigilance" or "paranoid" behavior. Dempsey's demeanor
          was not overtly indicative of people [Ostrum] generally talk[s] to
          who are on meth. Their slang term for it is "tweakers." And
          because they have sort ofa tweaking, jerking, sort ofvery quick,
          very spastic, very just, like this the whole time you're talking to
          them. . . . Dempsey was not exhibiting that type of behavior, so his
          initial demeanor to me, in dealing with at the scene, did not speak
          to that. And I did not observe any sort of an odor of alcohol on or
          about his person.

          Next, Ostrum returned to the store in order to secure Dempsey's bag and
its contents into evidence. She collected the items that were scattered on the

floor, locked them in her patrol car, and took them back to the police station to be


                                            -5-
No. 72168-2-1/6



processed into evidence.1 The contents of Dempsey's bag included tarot cards,

clothing, compact discs, a receipt, a lanyard and key, hypodermic needles, and a

bag containing a "white rock substance." This white substance was later

identified as methamphetamine.

       Detective Elias testified about the condition of Dempsey's clothing at the

time that he was booked into custody. She recalled that his pants had no button,

the zipper was pulled down "a little bit," and that his clothes were damp even

though it was not raining that day. She testified that the clothing of
methamphetamine users can become damp from sweat as a result of rising body
temperature. No blood sample was evertaken from Dempsey to test for
intoxication.

        Detective Priebe-Olson interviewed J.M. and Dempsey at the police

station after the incident. Priebe-Olson testified that she took several photos of

J.M's injuries, including red marks on his face, neck, and shoulder. Regarding
her interaction with Dempsey, Priebe-Olson testified that he appeared to be
underthe influence of something when she interviewed him, had sores, and
seemed "agitated and twitchy." She testified that "it's possible" that Dempsey's
behavior was indicative of a methamphetamine user.

        In closing argument, the State argued that being under the influence of
methamphetamine was not a defense to the attempted rape charge. Although
Dempsey did not seek a jury instruction on the defense of voluntary intoxication,

        1Everything in Dempsey's bag was individually entered into evidence, except for the
 hypodermic needles because those were sharp. According to Ostrum's testimony, the
department has a policy of disposing of potential biohazards or injurious sharp objects.
No. 72168-2-1/7



defense counsel argued that Dempsey lacked the requisite intent to rape J.M.

because he was high on methamphetamine. Defense counsel asked the jury to

convict Dempsey on the drug possession charge and acquit him on the

attempted rape charge.

        Outside the presence of the jury, after closing arguments (but before

deliberations), one of Dempsey's two attorneys expressed concern regarding the
potential inability of juror number one to remain impartial, asserting that the juror
was crying and staring at Dempsey and his other counsel during closing
arguments. Dempsey's lawyer requested that juror number one be designated
as an alternate and, thus, not deliberate. In response, the trial court observed

that:

        Juror Number One was fixated visually at an angle. I did not see
        herwiping her eyes with any kind of indication of -- that she was
        crying. But Idid notice that the juror seemed to be unable to follow
        as the different attorneys were talking here in the -- in the front. She
        seemed to be fixated in one direction.

        And unlike the otherjurors who kind ofwatched what was going on,
        that one juror was - Idon't want to say in a trance. Idon't want to
        say that she was -- but there was something very unique about her
        approach and the way that she watched counsel. Idid notice that.
        The court asked whether an individual inquiry of juror number one was

desired. Dempsey's attorney declined the invitation to question the juror. The
court permitted a recess for counsel to research the issue. After the recess, the
 court heard the arguments of counsel and denied the defense request.
        The jury found Dempsey guilty on both counts. He was sentenced to 72
 months of confinement and now appeals.
No. 72168-2-1/8




       Dempsey contends that the trial court erred in the way that it instructed the

jury on the concept of reasonable doubt. The trial court's instruction was in the
language of the standard Washington Pattern Jury Instruction 4.01. See 11
Washington Practice: Washington Pattern Jury Instructions: Criminal

4.01, at 27 (3d ed. Supp. 2014) (WPIC). The challenged instruction was as

follows:


                The defendant has entered a plea of not guilty. That plea
       puts in issue every element of each crime charged. The State is
       the plaintiff and has the burden of proving each element of each
       crime beyond a reasonable doubt. The defendant has no burden of
       proving that a reasonable doubt exists as to these elements.
              A defendant is presumed innocent. This presumption
       continues throughout the entire trial unless during your
       deliberations you find it has been overcome by the evidence
       beyond a reasonable doubt.
                 A reasonable doubt is one for which a reason exists and
       may arise from the evidence or lack of evidence. It is such a doubt
       as would exist in the mind of a reasonable person after fully, fairly,
       and carefully considering all of the evidence or lack ofevidence.

Jury Instruction 3.

       This instruction was specifically approved of by the Washington Supreme

Court. State v. Bennett, 161 Wn.2d 303, 317, 165 P.3d 1241 (2007). Indeed,

our Supreme Court has mandated that trial courts give this very instruction.
Bennett, 161 Wn.2d at 318. There was no error.

                                           Ill


           Dempsey next contends that the trial court erred by denying his request-
made at the conclusion of closing arguments—to designate juror number one as



                                          -8-
No. 72168-2-1/9



an alternate juror.2 Dempsey describes the basis for this request as follows:

"Juror One demonstrated bias and inattention before deliberations began when

she cried during the State's closing and then fixated on Dempsey during defense

counsel's closing." Br. of Appellant at 13. Because Dempsey's assertions of

juror bias and inattention never rose above the level of speculation or conjecture,

the trial court did not err by denying the requested relief.

        A statute provides that:

        It shall be the duty of a judge to excuse from further jury service
        any juror, who in the opinion of the judge, has manifested unfitness
        as a juror by reason of bias, prejudice, indifference, inattention or
        any physical or mental defect or by reason of conduct or practices
        incompatible with proper and efficient jury service.

RCW 2.36.110.

        Moreover, a court rule provides that:

         If at any time before submission of the case to the jury a juror is
        found unable to perform the duties the courtshall order the juror
        discharged, and the clerk shall draw the name of an alternate who
         shall take the juror's place on the jury.

CrR 6.5. Taken together, RCW 2.36.110 and CrR 6.5 "place a continuous
obligation on the trial court to excuse any juror who is unfit and unable to perform
the duties of a juror." State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866

(2000).

         Whether a juror has demonstrated bias or inattention is a determination
that falls within the discretion of the trial court. State v. Morfin, 171 Wn. App. 1,


          2This is an odd remedy request. If the juror is competent to serve, there is no basis for
granting such a request. If the juror is not competent to serve, then the juror should be
discharged—not held in reserve as an alternate. We view the request, and the assignment of
 error, as one to discharge the juror.
No. 72168-2-1/10



7, 287 P.3d 600 (2012). The trial court has discretion to investigate allegations of

misconduct in the manner most appropriate to the particular case. State v.

Elmore, 155 Wn.2d 758, 774-75, 123 P.3d 72 (2005). In determining whether to

excuse a juror for bias or inattention, the trial court necessarily acts as both an

observer and decision-maker. Jorden, 103 Wn. App. at 229. Indeed, "[i]n

deciding whether to grant or deny a challenge for cause based on bias, the trial

judge has 'fact-finding discretion.'" Jorden, 103Wn. App. at 229 (quoting Ottis v.
Stevenson-Carson Sch. Dist. No. 303, 61 Wn. App. 747, 753, 812 P.2d 133

(1991)). "As with other factual determinations made by the trial court, we defer to
the judge's decision." Jorden, 103 Wn. App. at 229. A court abuses its
discretion only "when its decision adopts a view that no reasonable person would
take or that is based on untenable grounds or reasons." State v. Boyle, 183 Wn.

App. 1,13, 335 P.3d 954 (2014).

       Criminal cases can often be emotional for the participants. The key is not

whether a juror has displayed emotion. The key is whether the juror is unfit to
serve. As another court recently noted in a similar case:

               Lastly, [defendant] Gumbs argues that the District Court
       abused its discretion when it chose not to remove a juror who cried
       while viewing video of Gumbs engaged in sexual activity with the
       eight year-old victim. . . .

               "A criminal defendant is entitled to a determination of his or
        her guilt by an unbiased jury based solely upon the evidence
        properly admitted against him or her in court." Gov't ofthe V.I, v.
        Dowlinq, 814 F.2d 134, 137 (3d Cir. 1987). The District Court is
        best positioned to preserve such entitlements, as it can observe
        and interact with the jury, and determine what, if any, investigation
        the circumstances demand.




                                          -10-
No. 72168-2-1/11



             Before the jury retired to deliberate, the District Court met
      with counsel to discuss the possibility of discharging the juror who
      had cried during trial. The District Court commented to counsel that
      "the images"—that is, video of Gumbs engaging in sexual activity
      with the eight year-old victim—"certainly might provoke some
      reaction," and that such emotion would not necessarily render the
      juror "unfair or impartial." We agree. Cf. State v. Lacy, No. 99-
      2625-CR, 246 Wis.2d 672, 2001 WL 477411, at *4 (Wis. Ct. App.
      May 8, 2001) (per curiam) ("[J]urors sometimes cry in difficult cases
      and the simple fact that this particular juror cried during the victim
      testimony did not mean that she could not be impartial.")

United States v. Gumbs, 562 Fed.Appx. 110, 115-16 (3d Cir. 2014).

      Dempsey claims that juror number one cried during the prosecutor's
closing argument and stared at Dempsey and his second attorney while
Dempsey's first attorney gave closing argument. This, according to Dempsey,
indicated both inattentiveness and bias (in that juror number one had made up

her mind prior to the commencement of deliberations). Dempsey's counsel
desired that the court decide their request without questioning any ofthe jurors.
       The trial judge did not observe juror number one crying but did observe
the juror's elongated gaze in Dempsey's direction during argument. Based on
the trial judge's explanation for his ruling, we do not perceive the discrepancy
about whether the juror was crying to have been significant to the ruling.
              JUDGE McCULLOUGH: Thank you. The Court is going to
       at this time deny the motion.
              Number one: both parties are correct in citing to RCW
       2.36.110 which indicates that a juror can be dismissed by
       manifesting unfitness by reason of indifference, bias, and so forth.
              Number two: the Court does not believe that staring at
       defense counsel, or even at the defendant translates to inattention.
             I did note, and stated on the record, that I did see the juror
       looking intently in that direction. But, can Iconclude that by doing
       so she's not listening or processing the information in another way?
       I can't do that.



                                        -11-
No. 72168-2-1/12



             The record, therefore, doesn't establish that the juror has
      engaged in [mis]conduct, and that there is any inattentiveness at
      this point, that would support this motion on the part of the defense.
              Furthermore, it's not clear—the Trial Court does not have
      any information about this potential juror's substantive opinion
      about the case. . . .
            I don't have any complaints from the fellow jurors that this
      person has not been paying any attention.
             And then, finally, there's the case of State versus Hopkins'31
      where the juror just admitted that she or he was—that they were
       biased.
              I don't have any of that. . . .
              But on this record, I am unable to determine that there is a
       basis for finding that this juror should be excused.

      The trial judge was in the best position to evaluate the circumstances

surrounding the juror's competency. The judge did so thoroughly and

thoughtfully, given the limited facts before the court. The experienced trial judge

did not abuse his discretion in refusing to discharge the juror.

                                            IV


       In a supplemental assignment of error, Dempsey contends that his trial

counsel were constitutionally ineffective because they did not request that the

jury be instructed on the defense of voluntary intoxication. We disagree.
       We apply the two-part test from Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), to determine whether a defendant has

constitutionally sufficient representation. State v. Cienfueqos, 144 Wn.2d 222,
226-67, 25 P.3d 1011 (2001). '"First, the defendant must show that counsel's
performance was deficient.'" Cienfueqos, 144 Wn.2d at 226 (quoting Strickland,
466 U.S. at 687). To establish deficient performance, a defendant must


       3 156 Wn. App. 468, 232 P.3d 597 (2010).

                                           -12-
No. 72168-2-1/13



"demonstrate that the representation fell below an objective standard of

reasonableness under professional norms." State v. Townsend, 142 Wn.2d 838,

843-44, 15 P.3d 145 (2001). Second, the "'defendant must show that the

deficient performance prejudiced the defense.'" Cienfueqos, 144 Wn.2d at 227

(quoting Strickland, 466 U.S. at 687). "Proving that counsel's deficient

performance prejudiced the defense 'requires showing that counsel's errors were

so serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.'" State v. Hicks, 163 Wn.2d 477, 488, 181 P.3d 831 (2008) (quoting

Strickland, 466 U.S. at 687). Reversal of the outcome of a trial court proceeding

is required only when the defendant demonstrates both deficient performance

and resulting prejudice. Strickland, 466 U.S. at 687.

       Moreover, with regard to the first part of the Strickland test, there is a

strong presumption that trial counsel's performance was adequate, and

exceptional judicial deference must be given when evaluating counsel's strategic

decisions. Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335,

899 P.2d 1251 (1995). If trial counsel's conduct can be characterized as

legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the

defendant received ineffective assistance of counsel. State v. McNeal, 145

Wn.2d 352, 362, 37 P.3d 280 (2002). In this regard, the presumption of

adequate representation is not overcome if there is any "conceivable legitimate

tactic" that can explain counsel's performance. State v. Reichenbach, 153

Wn.2d 126, 130, 101 P.3d 80 (2004).




                                          -13-
No. 72168-2-1/14



      As he admits on appeal, "one of Dempsey's primary defenses was that he

lacked intent to rape J.M. because he was high on methamphetamine." Supp.

Br. of Appellant at 1. Pursuant to the jury instructions given, the State had the

burden of proving beyond a reasonable doubt that Dempsey acted with the intent

to rape J.M. Defense counsel argued extensively in closing argument that the

State had not met its burden of proof on this element.

              The State says, so what if Mr. Dempsey was using[?] Show
       me where in the jury instructions it says that being high on
       methamphetamines is a defense to this kind of crime.
              Well, it's a defense to this kind of crime because the State
       bears the burden of proving what was going on inside Mr.
       Dempsey's head at the time of this incident. And we all know, from
       the testimony that we heard from the witnesses, that a person on
       methamphetamines experiences certain symptoms that Mr.
       Dempsey was demonstrating at the time of his arrest in this case.
       And we all know, from Deputy Ostrum, that that includes hyper-
       vigilance and paranoia.
              And we knowfrom [J.M.] that what Mr. Dempsey was saying
       to him doesn't make sense in the context of an attempt to rape the
       child. But does make sense in the context of somebody who's
       having some kind of paranoid moment at that moment in time.
            The bottom line is, it does affect what's going on inside
       someone's head. It is relevant to the question of what was going
       on inside Mr. Dempsey's head. And the State has to prove what
       was going on inside Mr. Dempsey's head at the time of this
       incident. And we don't know what was going on inside Mr.
       Dempsey's head. But we certainly have a reasonable explanation
       that fits more consistently with the evidence before you, than the
       State's effort to turn this into a sexual offense.
              And Iwant to point out—I don't want to suggest for you by
       providing an alternative explanation for what happened in the
       bathroom, that for some reason you should think "I have to do that."
       We don't have to do that. You know that the defense doesn't bear
       a burden of proof in the case. It's the State's burden of proof.
       Defense counsel later returned to this theme:

              We don't have a burden of proof, but we do get the benefit of
       the evidence that comes in, even if it comes in through the State's
       witnesses.


                                          -14-
No. 72168-2-1/15



            It's a much more reasonable interpretation of what happened
      here. Mr. Dempsey was high. We don't know what was going
      through his mind. But what he was saying was he was going to kill
      this child.
             Clearly [he was] not functioning properly. You listened to the
      description that the witnesses give of him later, he's staring off into
      space, not responding, not talking, "high as a kite" as Terrie
      Carlson described; whose brothers, three of them have addi[c]tion
      issues of their own including addiction to meth, so she knows
      something about it, intoxicated.
             From Shawna Miller, who has worked as a substance abuse
      counselor and has training in that regard. In addition, Deputy
      Priebe-Olson saying that Mr. Dempsey seemed twitchy, agitated.
      Exact sort of symptoms that Deputy Ostrum said she would expect
      to see.
             Bottom line is, we don't [know] what was going through Mr.
      Dempsey's mind on that day. But to say he had the intent to have
      sexual intercourse with a child is taking it too far. There just isn't
      evidence of that. There isn't.

      The standard voluntary intoxication instruction given for the offense

alleged herein would be:

      No act committed by a person while in a state of voluntary
      intoxication is less criminal by reason of that condition. However,
      evidence of intoxication may be considered in determining whether
      the defendant acted with intent.

11 Washington Practice: Washington Pattern Jury Instructions: Criminal

18.10, at 282 (3d ed. 2008); accord RCW 9A. 16.090.

      As the trial developed, Dempsey was able to argue to the jury that the

State had not met its burden of proof based on his theory that his use of

methamphetamine may have prevented him from forming the intent to rape—and
that the State had not proved to the contrary. Had the pattern instruction on

voluntary intoxication been given, the prosecution may have used that instruction
against Dempsey by pointing outthat—even if high on a drug—Dempsey's


                                         -15-
No. 72168-2-1/16



conduct was still criminal and that there was no evidence in the case showing

that methamphetamine prevented Dempsey from forming the intent to rape.

       In short, it is conceivable that trial counsel considered all options and then

chose to argue their case without putting the voluntary intoxication instruction

before the jury. Because this tactical choice is conceivable, the presumption of
adequate representation is not overcome. Dempsey's claim of ineffective

assistance of counsel, therefore, fails.

       Affirmed.


                                                  \   ->.^W.,a/
We concur:



                                           SfrOMi^a-,




                                           -16-
