                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          February 14, 2017


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                              No. 46965-1-II

                        Respondent,

         v.

    STACY MILTON THORNTON,                                     UNPUBLISHED OPINION

                        Appellant.



        SUTTON, J. — Stacy M. Thornton appeals his conviction for first degree trafficking in stolen

property.1 Thornton argues that he received ineffective assistance of counsel because (1) his

attorney failed to object to impermissible propensity evidence regarding the culture of homeless

drug addicts and (2) his attorney failed to object to an officer’s impermissible opinion on his guilt.

Thornton fails to establish that his counsel’s performance was deficient in not objecting to the

evidence regarding the culture of homeless drug addicts and he fails to establish prejudice based

on his counsel’s failure to object to the officer’s testimony. Accordingly, we affirm Thornton’s

conviction. We also exercise our discretion and waive appellate costs.




1
 Thornton was also convicted of one count of bail jumping. He does not appeal the bail jumping
conviction.
No. 46965-1-II


                                              FACTS

        On January 2, 2014, Thornton pawned a platinum ring with a two and a half carat diamond.

Detective Chris Johnstone of the Olympia Police Department identified the ring as a piece of

property stolen during a recent burglary. After investigation, Johnstone learned that Thornton had

obtained the ring from Marcus Hodnett. Johnstone arrested Hodnett for burglary and Thornton for

trafficking in stolen property.

        The State charged Thornton with first degree trafficking in stolen property. 2 Thornton’s

jury trial began on November 17, 2014.

        Detective Johnstone testified that during his investigation he interviewed Hodnett. During

the interview, Hodnett described in detail both the burglary and the pawn of the ring. And, all of

the information Hodnett provided to Johnstone was consistent with the rest of Johnstone’s

investigation. During Johnstone’s testimony, the following exchange took place:

        [STATE]: Detective, without referring to the information that you gathered during
        your interviews with either individual, what was your opinion as to the role that the
        defendant had regarding the pawning of the ring, if any?
        [JOHNSTONE]: I believe that he had knowledge that it was stolen and that he
        pawned the item at Cash Northwest knowing that the item was stolen.

1 Report of Proceeding (RP) at 46.

        Marcus Hodnett also testified at Thornton’s trial. Hodnett testified that he had first met

Thornton in work release in 2012. In 2013, Hodnett and Thornton were both homeless in

downtown Olympia. In December, both Hodnett and Thornton were staying in the abandoned

Thurston County Housing Authority building. Hodnett also testified that he and Thornton



2
    RCW 9A.82.050.


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No. 46965-1-II


sometimes used drugs together. And, Hodnett testified that committing thefts and burglaries to

support his drug habit “was a regular, daily thing[.]” 1 RP at 55.

       Hodnett asked Thornton to pawn the ring for him because he did not have any

identification. And, Hodnett testified that he told Thornton that he had stolen the ring during a

burglary. Hodnett and Thornton first brought the ring to a jeweler in Yelm. However, the jeweler

did not have cash on hand to buy the ring that day, so Hodnett and Thornton decided to pawn the

ring instead. They pawned the ring for $1,000. Hodnett gave Thornton $200. Hodnett testified

that Thornton was upset about only getting $200 and wanted half because he was taking a risk

pawning stolen property.

       Kelly Olsen also stayed in the Housing Authority building with Hodnett and Thornton in

December 2013. Olsen testified that at the time she was also homeless and addicted to drugs.

Olsen testified she paid for her habit by “committing various crimes, usually those related to theft.”

1 RP at 168-69. Then, she would either trade stolen property to drug dealers or pawn the property

for cash. She testified that this was an extremely common experience “[a]mong drug users,

especially homeless, but all in my experience.” 1 RP at 169. Olsen also testified that Thornton

knew the ring was stolen when he agreed to pawn it.

       Thornton testified that Hodnett said that the ring belonged to his grandfather. According

to Thornton, he did not know the ring was stolen until Olsen told him approximately a week after

he pawned it. Thornton admitted that he was “aware that people steal things in order to get money

for drugs.” 2 RP at 226.




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No. 46965-1-II


       The jury found Thornton guilty of first degree trafficking in stolen property. Thornton

appeals.3

                                            ANALYSIS

       To prevail on an ineffective assistance of counsel claim, a defendant must show both

deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel’s performance is deficient if it falls below an

objective standard of reasonableness. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251

(1995). Our scrutiny of counsel’s performance is highly deferential; there is a strong presumption

of reasonableness. McFarland, 127 Wn.2d at 335. To rebut this presumption, a defendant bears

the burden of establishing the absence of any conceivable trial tactic explaining counsel’s

performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To establish prejudice, a

defendant must show a reasonable probability that the outcome of the trial would have differed

absent the deficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If

a defendant fails to establish either deficiency or prejudice, the ineffective assistance of counsel

claim fails. Strickland, 466 U.S. at 697.

       When a defendant bases his ineffective assistance of counsel claim on counsel’s failure to

object, the defendant must show that the objection would likely have succeeded. State v. Gerdts,

136 Wn. App. 720, 727, 150 P.3d 627 (2007). Generally, we consider the decisions of whether

and when to object as a “classic example of trial tactics.” State v. Madison, 53 Wn. App. 754, 763,




3
  In addition to his claims of ineffective assistance of counsel, Thornton originally assigned error
to legal financial obligations. However, Thornton withdrew his argument because the trial court
did not impose discretionary legal financial obligations.


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No. 46965-1-II


770 P.2d 662 (1989). It is a legitimate trial tactic to forego an objection to avoid highlighting

certain evidence. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004).

                        I. EVIDENCE OF HOMELESS, DRUG USER CULTURE

       Thornton claims that he received ineffective assistance of counsel because his counsel

failed to object to Hodnett’s and Olsen’s testimony that theft was common among homeless drug

addicts. According to Thornton, this evidence was improper propensity evidence under ER 404(b).

But, Thornton is mistaken about the application of ER 404(b) here. ER 404(b) states:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the character
       or a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added.) The language of ER 404(b) explicitly permits the use of prior acts to prove

knowledge, and the State used the evidence to prove that Thornton knew the ring was stolen when

he pawned it. Because the evidence was admissible under ER 404(b), the trial court would not

have sustained an objection to the admissibility of the evidence. Therefore, Thornton has failed to

demonstrate that his counsel’s performance was deficient for failing to object to the evidence

regarding the culture of theft among homeless drug addicts. Because Thornton has failed to

establish deficient performance, his ineffective assistance of counsel claim fails.




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No. 46965-1-II


                                 II. OFFICER’S OPINION ON GUILT

        Thornton also argues that he received ineffective assistance of counsel because his counsel

failed to object to Detective Johnstone’s opinion testimony that Thornton knew the ring was stolen.

We assume, without deciding, that the failure to object was deficient performance, but Thornton

cannot meet his burden to demonstrate prejudice. Therefore, his ineffective assistance of counsel

claim fails.

        Here, it was undisputed that Thornton pawned the ring for Hodnett. And, it was undisputed

that Hodnett stole the ring. The only issue was whether Thornton knew the ring was stolen when

he sold it. Thornton argues that Detective Johnstone’s testimony was prejudicial because it

expressed an opinion on the ultimate issue for the jury. But, the State also presented evidence

from Hodnett and Olsen that Thornton had direct knowledge that the ring was stolen when he

agreed to pawn it for Hodnett.

        And, even if the jury did not believe the evidence that Thornton had direct knowledge that

the ring was stolen, the jury is permitted to infer knowledge when “a person has information that

would lead a reasonable person in the same situation to believe that a fact exists[.]” Clerk’s Papers

(CP) at 125; RCW 9A.08.010(1)(b)(ii). The State presented extensive circumstantial evidence

inferring knowledge including Hodnett and Olsen’s testimony that it was common for homeless

drug addicts to steal and then pawn stolen property to pay for drugs. Thornton also admitted that

he was aware this was a way people often paid for drugs. And, Thornton knew Hodnett was

homeless and had used drugs with him on occasion. Accordingly, the State presented evidence

that would also allow the jury to infer knowledge without relying on Detective Johnstone’s

opinion.



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No. 46965-1-II


       Because the State presented both direct and circumstantial evidence proving that Thornton

had knowledge that the ring was stolen, there is not a reasonable probability that the outcome of

the trial would have been different if Thornton’s counsel had objected to Detective Johnstone’s

opinion testimony. Therefore, Thornton cannot establish prejudice. Because Thornton cannot

establish prejudice, his ineffective assistance of counsel claim fails.

       Thornton has failed to establish ineffective assistance of counsel based on either (1) his

counsel’s failure to object to the evidence regarding the culture of homeless drug addicts, or (2)

Detective Johnstone’s opinion testimony.

                                       III. APPELLATE COSTS

       Thornton also opposes an award of appellate costs to the State in light of State v. Sinclair,

192 Wn. App. 380, 367 P.3d 612 review denied, 185 Wn.2d 1034 (2016), asserting that he lacks

the ability to pay such costs if imposed. The trial court entered an order of indigency for

Thornton’s appeal on December 2, 2014. Under RAP 15.2(f), this court presumes that Thornton

remains indigent throughout review of his appeal unless the trial court finds that his financial

situation has improved. Therefore, we elect to exercise our discretion under RCW 10.73.160(1)

and waive the imposition of appellate costs.




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No. 46965-1-II


        We affirm Thornton’s conviction, and we also waive appellate costs.

        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.



                                                    SUTTON, J.
 We concur:



 MAXA, A.C.J.




 WORSWICK, J.




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