      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


STATE OF WASHINGTON,                           )        No. 77949-4-I

                    Respondent,                )        DIVISION ONE
                                               )
             v.                                )        UNPUBLISHED OPINION

MARTIN LUTHER CARTER,                         )
                    Appellant.
                                              )         FILED: July 22, 2019

       ANDRus, J.   —   Martin Luther Carter appeals his conviction for possession of

a stolen vehicle. Carter contends his attorney committed ineffective assistance of

counsel by failing to request a voluntary intoxication instruction at the conclusion

of trial. Carter also contends that the trial court erred in imposing a DNA collection

fee. The State concedes the DNA fee should be stricken. Because Carter has not

established ineffective assistance of counsel, we affirm his conviction. We remand

the case to the trial court to strike the DNA fee from the judgment and sentence.

                                        FACTS

       On the evening of March 9, 2017, Des Moines Police Sergeant David Mohr

saw a 1997 Honda idling in the parking lot of a public library. He ran the license

plate and discovered the plate was associated with a 2002 Honda of a different

color. Mohr walked to the car and saw an adult male, later identified as Carter,
 No. 77949-4-112

who appeared to be passed out behind the wheel. Mohr saw through the window

a piece of cloth draped over the steering column, typically used to cover ignition

damage, and a piece of tin foil with heat marks, consistent with heroin use, on the

center console. Sergeant Cathy Savage responded to Mohr’s call for backup, and

observed a screwdriver on the car’s floorboard. Mohr tapped on the driver’s side

window to rouse Carter.      Carter appeared initially to not recognize what was

happening. Carter then picked up the screwdriver to turn off the vehicle when

Mohr asked him to do so. Mohr saw that the steering wheel had been damaged

and that there was no key for the car.

       Mohr and Savage obtained the car’s vehicle identification number (VIN)

from the dash and determined that the registered owner of the car was Vanessa

Francis. Three days earlier, Francis had reported that her 1997 Honda Accord

had been stolen from the Emerald Queen Casino parking lot—the third time in six

months. Francis confirmed that her license plate was AGP8331, and Mohr testified

the license plate he observed did not match her car. The parties stipulated that

the license plate ADB7957 belonged to a 2002 green Honda Accord and license

plate AGP8331 belonged to Francis’s blue 1997 Honda Accord.

       Des Moines police called Francis and asked her to claim her vehicle from

the library parking lot.   Francis testified that the Honda’s steering column and

ignition had been busted out when the car was stolen the second time and she

had jury-rigged a temporary starter that hung down from the column by a couple

pieces of wire. Although Francis had a key that started her car, her friend hot-wired

the car to start it. Francis found trash, other keys, additional license plates, and


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 No. 77949-4-1/3

 clothing inside the car when she took possession of it. The license plates she

 found were not hers.

        During trial, the State asked for clarification from Carter whether he intended

to seek a voluntary intoxication instruction, given counsel’s reference to his heroin

 use during opening statements and cross examination of police officers. The State

indicated that if Carter intended to assert a voluntary intoxication defense, the

State needed to change who it called to testify. Carter’s counsel explained that

she had not considered an involuntary intoxication or diminished capacity defense.

Counsel stated “honestly I feel a little bit like oh, maybe I should have [raised this

defense].” But, she stated, “[T]he only evidence we have is what the Court has

heard.” Counsel went on:

       And I think that when you’re talking about knowledge, state of mind
       is always important and his state of mind has been brought up by the
       State. The state of mind that goes to knowledge is pretty much
       insinuated  .   by both parties.
                       .   .            . I think the instruction gives the jury
                                            .   .


       a formal peg to hang its consideration on. Because it highlights, it
       highlights the heroin use in this case. I and maybe, you know,
                                                        —


       maybe we’ll be dealing with an ineffective assistance claim later, but
       I had no intention of formalizing that. So that’s just to be really
       candid, that’s kind of how I was how I was approaching things.
                                            —




The State clarified that it was not suggesting there was a basis for a diminished

capacity defense; “just to clarify voluntary intoxication is what I’m referring to.” The

Court acknowledged “I’m sorry, voluntary intoxication.       .   .   .   I mean all I have is I’ve

got a man sleeping in a car seat.”              Carter’s counsel acknowledged that she

understood they were discussing voluntary intoxication, and not diminished

capacity.

       Carter’s attorney stated that she intended to argue that Carter’s heroin use

was relevant but she did not intend to argue for a voluntary intoxication instruction
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No. 77949-4-114

because “on the one hand I think it does give a boost to the defense, but on the

other hand in practice I also think it creates difficulties for the defense

       At that point, the State read into the record the standard voluntary

intoxication instruction, WPIC 18.10:

       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 knowledge that the motor vehicle has been
       stolen.
The prosecutor stated “that really seems to be what Ms. McGinty intends to argue.

That heroin impacted whether the defendant acted with knowledge that the motor

vehicle had been stolen.” The State indicated that to be entitled to a voluntary

intoxication instruction, there would need to be evidence that the defendant had

consumed an intoxicating drug or alcohol, and evidence that this consumption

intoxicated the defendant enough to impact his ability to form the requisite mental

state. While the State conceded there was evidence of heroin use, it argued there

was no evidence that the consumption of heroin impacted Carter’s ability to know

the vehicle was stolen. The State argued that second element required expert

testimony.

       Carter’s counsel argued that because the State elicited evidence that Carter

was passed out in the car and had to be woken up, Carter was entitled to use those

facts to argue his state of mind without suggesting some sort of scientific basis.

Counsel also indicated Carter was entitled to argue that the evidence did not

demonstrate Carter was paying attention to anything other than his heroin.

Counsel stated:



                                         -4-
No. 77949-4-115

        I’m not saying he was incapable of knowledge, I’m just saying we
        don’t have much evidence of it. We have we have a cloth, and I’m          —


        entitled to make a case based on the evidence that I see.

The defense, as counsel described it, was lack of evidence:

       So the defense is going to stick with that lack of evidence. There’s
       not enough evidence to show knowledge. The defense is not going
       to be arguing that Mr. Carter. I’m not saying that Mr. Carter is not
                                                        .   .


       capable of knowledge.      So I don’t think I am putting on a voluntary
                                        .       .   .


       intoxication defense to that extent that it would need the WPIC or it
       would need experts or anything else.
Carter did not request a voluntary intoxication instruction and the trial court did not

include it in its final instructions to the jury.

       In closing argument, Carter acknowledged that the sole issue in the case

was knowledge—whether Carter knew the car was stolen. She pointed to the fact

that the car’s doors and windows were not damaged or broken, that Carter had not

damaged the steering column as that had occurred earlier, and the police did not

connect anything inside the car, such as the other cars’ license plates, to Carter.

Counsel pointed out:

       [W]e don’t know who took the car, we don’t know who was driving
       the car. We don’t know how the car got into the parking lot. We don’t
       know about how long the car was there. We don’t know if somebody
       abandoned it the~e.      We don’t know if somebody was dealing
                                .   .       .


       drugs in that car.

       In addressing Carter’s state of mind, counsel argued that it was undisputed

that Carter was using drugs and was passed out at 6 p.m. That evidence, counsel

contended, was the only evidence presented by the State as to Carter’s state of

mind: “And what your common sense can also tell you, is that when somebody is

using drugs, especially that kind of drugs                      .   .   .   ,   that’s their focus. That’s their state

of mind. Their state of mind is the drugs and that’s the kind of knowledge that we

                                                            -5-
    No. 77949-4-116

    also have.” Counsel suggested that Carter may have simply decided that the car—

    any car, stolen or otherwise—was a safe, dry place to use heroin. (‘[A car] being

    used as a sort of dry area to use drugs in doesn’t give you knowledge”). The theme

    of the defense case, from opening statement to closing argument, was that Carter

    was so focused on his heroin use that he did not notice signs—such as the

    punched steering column or the cloth draped across it—that suggested the car

    may have been stolen.

           The jury found Carter guilty, the trial court sentenced Carter to 13 months

    in prison. Carter appeals his conviction, asserting ineffective assistance of counsel

    in failing to request a voluntary intoxication instruction.1

                                          ANALYSIS

           Effective assistance of counsel is guaranteed by both the Sixth Amendment

    and article 1, section 22 of the Washington Constitution. State v. Hendrickson,

    129 Wn.2d 61, 77, 917 P.2d 563 (1996); Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052,80 L. Ed. 2d 674 (1984). To prevail on a claim of ineffective

assistance of counsel, Carter must show that (1) his counsel’s performance was

deficient and fell below the standard of reasonableness and (2) that the deficient

performance prejudiced him in that but for the deficient performance, the result

would have been different. In re Gomez, 180 Wn.2d 337, 347-348, 325 P.3d 142

(2014); State v. Hassan, 151 Wn. App. 209, 216, 211 P.3d 441 (2009). This court




1    Carter also challenges the imposition of a $100 DNA collection fee. The State concedes the
DNA fee should not have been imposed because the State’s records show that Carter’s DNA was
previously collected. We accept this concession and need not address this assignment of error
further.

                                              -6-
    No. 77949-4-1/7

    reviews claims of ineffective assistance of counsel de novo. Gomez, 180 Wn.2d

    at 347.

              The appellate court presumes the defendant was properly represented.

    Hendrickson, 129 Wn.2d at 77; Gomez, 180 Wn.2d. at 348 (quoting Strickland,

    466 U.S. at 690). The defendant bears the burden of showing that, based on the

    record, there are no legitimate strategic or tactical reasons for the challenged

    conduct. Hendrickson, 129 Wn.2d at 77-78; Hassan, 151 Wn. App. at 217.

           Carter argues there was no strategic reason to forego a voluntary

    intoxication instruction.           We reject this argument as inconsistent with the trial

    record. Carter’s counsel told the court that she deemed the voluntary intoxication

    instruction to be a double-edged sword for defendants.                    While the instruction

    helped focus jurors on the knowledge element, in practice, the instruction also

made an acquittal more difficult. Trial counsel affirmatively stated she had no

intention of arguing Carter was so intoxicated that he was incapable of knowledge;

merely that he was so preoccupied with his drug use that he paid no heed to signs

that the car may have been a stolen vehicle.

          This theory of the case was evident in counsel’s opening statement and

closing argument. Trial counsel argued the State had no evidence that Carter

knew the car was stolen and all the State had were police officers’ unfounded

assumptions of what had occurred.2 Trial counsel contended that the evidence


2  In her opening statement, Carter’s attorney argued that the “evidence is not going to show a
connection between          .Carter and possession of a stolen vehicle;” that “[t]he only evidence is
                                .   .

going to be     . Carter at the library passed out with a piece of tinfoil on the seat next to him;” that
                    .   .

“the state is going to ask [the jury] to make conclusions about [Carter’s] state of mind from what the
police thought was going on;” and that Carter should be found not guilty “based upon the lack of
evidence and the lack of connection to the crime charged.” (Emphasis added).

                                                    -7-
 No. 77949-4-118

was consistent with a drug user opportunistically using a car as shelter to use

 heroin. And while heroin use affected Carter’s state of mind, counsel argued, his

focus was on the drugs, and not on signs that the car might be stolen.

        We cannot conclude that this trial strategy fell below the standard of

objective reasonableness. Carter’s attorney made a strategic choice to argue that

Carter was so focused on using heroin that he simply did not notice anything about

his surroundings, including the punched ignition and damaged steering column.

Based on the defense Carter pursued, it was objectively reasonable to refrain from

requesting a jury instruction that may have suggested Carter’s use of heroin was

“voluntary,” rather than an addiction.       Under these circumstances, we will not

second-guess trial counsel’s decision to forego a voluntary intoxication jury

instruction when counsel deemed that instruction unnecessary to the defense

theory of the case and potentially damaging to her client.

        Even if Carter’s attorney made an unreasonable strategic choice, Carter

has not demonstrated he was prejudiced. Carter did not show that there was a

“reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 S. Ct. at 694. The

State had overwhelming evidence to prove Carter knew the car was stolen: the

steering column was visibly damaged in a way consistent with theft, a cloth

covered the steering column to hide the damage, there were no keys in the ignition,

the car was running when Mohr approached the car, and Carter knew how to use

a screwdriver to turn off the idling car. In light of this evidence, it is unlikely the jury

would have rendered any other verdict even if it had considered that Carter’s


                                           -8-
No. 77949-4-119

voluntary intoxication affected his mental state. Carter thus fails to show that the

failure to request the voluntary intoxication instruction prejudiced the outcome of

his trial. Carter’s ineffective assistance of counsel claim fails.

       For these reasons, we affirm Carter’s conviction but remand to strike the

DNA fee from the judgment and sentence.




WE CONCUR:                                                              U




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