     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

STATE OF WASHINGTON,                                 No. 73313-3-1                    <=>




                      Respondent,
                                                                                       rc
           v.



RANDALL P. FOLTYNIEWICZ,                             UNPUBLISHED OPINION
                                                                                       S9

                      Appellant.                     FILED: June 20, 2016



       Verellen, C.J. — Randall Foltyniewicz appeals from his felony harassment and

violation of a court order convictions. Randall contends the trial court's jury instruction

limiting the use of ER 404(b) evidence was an improper comment on the evidence.1

Because Randall proposed the language used for the limiting instruction, we conclude

the invited error doctrine precludes our review. He also contends his counsel was

ineffective for opening the door during cross-examination to previously excluded

testimony about his prior assault of his son. But defense counsel's decision to attack

the victim's credibility constitutes a legitimate trial strategy.

       Therefore, we affirm the judgment and sentence.

                                             FACTS


       In November 2014, Randall told four police officers that he was going to attempt

to murder his wife, Tiffany. When one of the officers told Tiffany about the threat, she




         We refer to Foltyniewicz and the victim by their first names for clarity.
No. 73313-3-1-1/2


stated that she believed Randall would carry out the threat and try to murder her. After

police arrested Randall, Tiffany obtained a no-contact order against him. Randall sent a

letter from jail to Tiffany's residence.

       The State charged Randall with one count of felony harassment and one count of

misdemeanor violation of a court order. Before trial, the court ruled the State could

present ER 404(b) evidence of Randall's prior domestic violence. The court precluded

the State from presenting evidence that Randall had once assaulted their son,

determining that such evidence was cumulative and unduly prejudicial.

       At trial, during cross-examination of the arresting officer, defense counsel asked

if there was any record of Randall assaulting his son or if the officer had interviewed the

son. The officer testified that there was no record of an assault and that he had

observed the son, who appeared normal, but had not interviewed him.

       Defense counsel also questioned Tiffany about her allegations that Randall had

assaulted her and their son. Defense counsel questioned Tiffany's prior statements that

she had pictures to corroborate her allegations, yet she was unable to provide them at

trial. On redirect, the State questioned Tiffany about the assault allegation, and she

said that Randall once had held their son down on a bed by his chest so hard that he

had left bruises. In closing argument, defense counsel attacked Tiffany's credibility by

noting inconsistencies in her testimony.

       The parties submitted proposed jury instructions. The defense offered a limiting

instruction for the ER 404(b) evidence. The trial court ultimately added language that

the evidence was also permitted "for the purpose of showing . . . that the words or

conduct of Randall Foltyniewicz placed Tiffany Foltyniewicz in reasonable fear that the
No. 73313-3-1-1/3


alleged threat to kill would be carried out."2 The parties did not object to the final limiting

instruction:


               Certain evidence has been admitted in this case for only a limited
       purpose. This evidence consists of Tiffany Foltyniewicz's allegations that
       Randall Foltyniewicz psychologically and physically abused her prior to
       November 8, 2014. This evidence may be considered by you only for the
       purpose of showing (1) that the words or conduct of Randall Foltyniewicz
       placed Tiffany Foltyniewicz in reasonable fear that the alleged threat to kill
       would be carried out, and/or (2) that the alleged felony harassment was
       part of an ongoing pattern of psychological or physical abuse of the victim
       manifested by multiple incidents over a prolonged period of time. You
       may not consider it for any other purpose. Any discussion of the evidence
       during your deliberations must be consistent with this limitation.[3]

       The jury found Randall guilty of felony harassment and violation of a court order

but could not reach a unanimous decision on the domestic violence aggravator.

       Randall appeals.

                                         ANALYSIS


                                     Limiting Instruction

        Randall contends the language used in the limiting instruction was an improper

comment on the evidence because it implied that the evidence was sufficient to prove

the question. We disagree.

       The invited error doctrine prohibits a party who sets up an error at trial from

claiming that very action as error on appeal.4 We apply this doctrine whether the error

was made negligently or in bad faith, even when the error is of constitutional magnitude
and presumed prejudicial.5 Courts will also consider whether a defendant affirmatively



        2 CP at 279.
        3 CP at 279 (emphasis added).
        4 State v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009).
        5 Citv of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273 (2002).
No. 73313-3-1-1/4


assented to the error.6 A party cannot request or materially contribute to an instruction

and then later complain on appeal that the instruction was improper and should not

have been given.7

       Randall initially proposed the language used in the limiting instruction that he

now challenges on appeal. Randall proposed:

      This evidence .. . may be considered by you only for the purpose of
      showing that the alleged felony harassment was a part of an ongoing
      pattern of physical abuse of the victim as manifested by multiple incidents
       over a prolonged period of time.[8]

The court adopted this language and added that the evidence was also permissible to

demonstrate the reasonableness of the victim's fear. The final instruction stated:

      [TJhis evidence may be considered by you only for the purpose of showing
      (1) that the words or conduct of Randall Foltyniewicz placed Tiffany
      Foltyniewicz in reasonable fear that the alleged threat to kill would be
      carried out and/or (2) that the alleged felony harassment was part of an
      ongoing pattern of psychological or physical abuse of the victim
       manifested by multiple incidents over a prolonged period of time.[9]

Neither party objected to this version of the instruction. Both Randall's version and the

instruction as given use the language that Randall proposed. Because Randall initially

proposed the language in the instruction that he challenges on appeal and he materially

contributed to the final jury instruction given, we conclude the invited error doctrine bars

his claim on appeal.




     6 Momah, 167 Wn.2d at 154-55; In re Dependency of K.R., 128 Wn.2d 129, 147,
904P.2d 1132, 1141 (1995).
       7 State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990); Patu, 147
Wn.2d at 720.

       8 CP at 316 (emphasis added).
       9 CP at 279 (emphasis added).
No. 73313-3-1-1/5


                                  Ineffective Assistance


       Randall contends defense counsel was ineffective for opening the door to

previously excluded testimony about Randall's prior assault of his son. We disagree.

      We review ineffective assistance claims de novo.10 To prevail, the defendant

must show that counsel was deficient and the deficiency caused prejudice.11

Representation is deficient if, under all the circumstances, the performance falls below

an objective standard of reasonableness.12 We are highly deferential to counsel's

performance.13 We strongly presume that counsel's performance was reasonable and

that there were legitimate strategic or tactical reasons supporting counsel's challenged

conduct.14 Prejudice exists ifthere is a reasonable probability that, but for the deficient

performance, the result would have been different.15

       Before trial, the court excluded any evidence that Randall had abused his child

as "duplicative and unnecessarily prejudicial."16 But during cross-examination, defense

counsel asked the arresting officer:

       Q.     [Tiffany] also said that he was an abusive father; is that correct?

       A.     She said that at one-l think it was in her statement.

       Q.     And did you ever look up to see ifthere was ever any CPS records?


       10 In re Personal Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 (2001).
       11 State v. Humphries, 181 Wn.2d 708, 719-20, 336 P.3d 1121 (2014).
       12 Strickland v. Washington, 466 U.S. 668, 685-87, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011).
       13 In re Personal Restraint of Gomez, 180 Wn.2d 337, 348, 325 P.3d 142 (2014)
(citing Strickland, 466 U.S. at 689); State v. Carson, 184 Wn.2d 207, 218, 357 P.3d
1064(2015).
       14 Strickland, 466 U.S. at 689; Grier, 171 Wn.2d at 42.
       15 Strickland, 466 U.S. at 685-87; Grier, 171 Wn.2d at 32-33.
       16 RP (Feb. 24, 2015) at 56-57.
No. 73313-3-1-1/6



        A.      No, I did not.

        Q.      Did you ever speak with [the child]?

        A.      No, I did not.

        Q.      From--you saw him there?

        A.      I saw him through the--he was in the ER room, and I saw him from outside
                the doors. I never made contact with him.


        Q.      And from what you could tell, he looked like a normal, healthy kid?

        A.      He looked normal.


        Q.      Like a normal seven-year-old boy?

        A.      YeahJ17!

The prosecutor alerted the court that defense counsel had opened the door to evidence

about "abuse of the child."18

        The record does not suggest that defense counsel was unaware of the open door

doctrine. Rather, the record supports that defense counsel deliberately decided to

disregard the court's decision to not allow the State to admit testimony of alleged child

abuse when he raised the issue during cross-examination. The State substantially

relied on Tiffany's testimony to prove that she reasonably feared Randall would carry

out his threat to kill her and to demonstrate an ongoing pattern of abuse. Randall did

not testify at trial.

        Defense counsel's strategy to discredit Tiffany's testimony by questioning her

lack of evidence was a legitimate tactical decision. For example, defense counsel

asked Tiffany about bruises she claimed Randall had left on their son in 2012. Tiffany


        17RP(Mar. 2, 2015) at 96-97.
        18RP(Mar. 2, 2015) at 170.
No. 73313-3-1-1/7


told the police that she had taken pictures of the bruises, but she never gave those

pictures to police. In earlier testimony, Tiffany had claimed to have pictures and records

to support several other accusations that she had also been unable to provide to police.

She then claimed Randall had accessed her e-mail accounts and had deleted the

pictures. Defense counsel suggested that Tiffany was making the allegations up in

order to gain full custody of her son. Defense counsel reasonably determined that

attacks on Tiffany's credibility outweighed any prejudice from admitting the allegations

of prior child abuse.

       Therefore, we conclude that defense counsel's strategy to elicit testimony about

Randall's alleged assault of his child was a legitimate tactical decision.

       Finally, in the absence of any error, we reject Foltyniewicz's assertion of

cumulative error.

              Affirmed.




WE CONCUR:
