    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,
                                                No. 69123-6-1
                      Respondent,
                                                DIVISION ONE
             v.



ANTONIAL M. MONROE,                             UNPUBLISHED OPINION


                      Appellant.                FILED: April 28, 2014


       LAU, J. — A jury found Antonial Monroe guilty of promoting prostitution in the first

degree. We conclude that the trial court did not abuse its discretion in ruling that

Monroe's testimony "opened the door" to admission of his prior adult convictions and

that any error in the admission of Monroe's juvenile offenses was harmless. Monroe's

claims that the trial court erred in failing to investigate juror misconduct and that defense

counsel was constitutionally deficient are also without merit. We therefore affirm.

                                              FACTS

       The State charged Antonial Monroe with one count of promoting prostitution in

the first degree. At trial, 21-year-old JW testified that she was three when her parents

divorced. She then lived with various relatives. JW gave birth to her first child in ninth

grade and dropped out of school in the eleventh grade.
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      In 2010, JW met a pimp named Quinton Jones. Jones eventually beat JW,

threatened her and her children, and forced her to prostitute herself. After Jones was

arrested, JW continued to prostitute herself for Jones and another pimp.

      In September 2011, JW met a woman named Victoria Burden and moved into

Burden's apartment in Renton. In October 2011, JW and Burden went to a dance club

and got into a fight with some other patrons. As the women were leaving the club,

Monroe approached and asked JW, who was bleeding, if she was okay. The two

exchanged telephone numbers.

      JW and Monroe communicated several times during the following weeks.

Monroe told JW that "we could get money together, and be successful together and

stuff." Report of Proceedings (June 5, 2012) (RP) at 398. A short time later, JW left

Washington and worked as a prostitute in both Las Vegas and Los Angeles. JW

remained in contact with Monroe, who made it clear that he wanted her to work for him.

      JW returned to Seattle around Thanksgiving 2011 and continued to work as a

prostitute. After arresting one of JW's customers, police officers took her to the Genesis

Project, which assists victims of sex trafficking. The Genesis Project helped JW move

to the Dream Center in Los Angeles for further assistance.

       In February 2012, JW returned to Washington and moved in again with Burden in

Renton. After a few weeks, JW got into an argument with Burden and contacted

Monroe for assistance. Monroe picked up JW and took her to the house in Kirkland

where he was living. While staying in Kirkland, JW began "walking" for Monroe. RP

(June 5, 2012) at 413. Monroe drove JW from Kirkland to Highway 99, dropped her off,




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and then picked her up when she was done. Using Monroe's credit card, JW posted

advertisements on an escort website.

      After several days in Kirkland, Monroe and JW moved to the Golden West Motel

on Highway 99 in Edmonds, where JW continued to work for Monroe. Monroe told JW

that she was "his girl" and was supposed to do what he wanted. RP (June 5, 2012) at

430. JW testified that although Monroe never beat her, he threatened her, became

angry and loud, and ripped her jacket. JW gave all of the money that she earned to

Monroe.

      On March 14, 2012, after spending about two weeks with Monroe, JW called

Kyla Conlee at the Dream Center in Los Angeles. JW, who was crying and scared, told

Conlee where she was staying and asked for help. Conlee said that she would arrange

for assistance. Conlee contacted the Genesis Project, who contacted FBI Agent Steven

Vienneau, who worked with agencies assisting victims of human trafficking.

      Later that day, Monroe brought two other women to stay with JW at the motel.

Monroe had sex with one of the women. He then drove off with the two women, leaving

JW at the motel. While he was gone, JW sent a text message to Monroe, warning him

not to return to the motel because the police were there. Agent Vienneau, who knew

JW from the investigation of Quinton Jones, arranged for task force members to arrest

Monroe as he returned to the Golden West Motel.

      Monroe testified that he never asked JW to "walk" for him and denied that she

used their room at the Golden West Motel for prostitution or that she ever gave him

money. He also denied threatening her or asking her to be his "bottom bitch," the

woman in charge of his other prostitutes. RP (June 6, 2012) at 594. Monroe explained
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that he was planning to make pornographic videos with the two women at the motel and

that he hoped to "be big" in the video industry. RP (June 6, 2012) at 594.

       Monroe claimed that when he received JW's text message warning him about the

police, he became concerned that she might be committing suicide and raced back to

the motel. As he arrived at the motel, the police started "coming out of the trees, the

fences, everywhere with assault rifles telling us put your hands out the car." RP (June

6, 2012) at 649. The police forced Monroe to lie on the ground in a puddle before

arresting him. Monroe acknowledged that he started "acting up" because he had no

idea why he was being arrested. When officers refused to tell him why he was being

arrested, Monroe told them, "I don't do nothing. I don't commit crimes." RP (June 6,

2012) at 652.

       Prior to trial, the parties agreed that if Monroe testified, his prior convictions for

second degree identity theft and giving false information to a police officer were

admissible under ER 609(a)(2). After Monroe testified that "I don't commit crimes," the

trial court ruled that he had opened the door to evidence of his other adult felony and

misdemeanor convictions.

       The jury found Monroe guilty as charged, and the court imposed a 120-month

standard range sentence.

                                             ANALYSIS
       Opening the Door

       Monroe contends the trial court erred in ruling that his testimony "opened the

door" to the admission of his prior nondishonesty adult felony and misdemeanor

convictions. He argues that his statement "I don't commit crimes" was not a general



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claim of good character but indicated only that he did not understand why he was being

arrested on the particular occasion.

       "A party's introduction of evidence that would be inadmissible if offered by the

opposing party 'opens the door' to explanation or contradiction of that evidence." State

v. Ortega. 134 Wn. App. 617, 626, 142 P.3d 175 (2006). When a witness "opens the

door," the opposing party may introduce prior convictions to counter assertions of a law-

abiding past regardless of whether the conviction would have been admissible under

ER 609. See State v. Brush, 32 Wn. App. 450, 451, 648 P.2d 897 (1982). The doctrine

promotes fairness by preventing one party from bringing up a subject to gain an

advantage and then barring the other party from further inquiry. State v. Avendano-

Lopez. 79 Wn. App. 706, 714, 904 P.2d 324 (1995) (citing State v. Gefeller, 76 Wn.2d

449, 455, 458 P.2d 17 (1969)). We review a trial court's determination that a party has

opened the door for an abuse of discretion. Ortega. 134 Wn. App. at 626.

       During his direct-examination, Monroe testified that as he was returning to the

Golden West Motel, the police officers suddenly came "out of the trees, the fences,

everywhere with assault rifles." RP (June 6, 2012) at 649. According to Monroe, the

officers then forced him to lie on the ground in a puddle, placed an assault rifle in his

back, and then arrested him without providing any explanation.

       Monroe acknowledged that he started "acting up" and "making obscene

comments" because he did not understand why he was being arrested and the officers

refused to tell him:
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       I was just explaining that I don't know what I was being investigated for, so
       my only hints—I just left the room with females, so I don't know what I was
       being arrested for, so Ijust said, man, I don't do nothing. I was just saying
       I don't do nothing. I don't commit crimes. I just-I'm just a fuck boy. I fuck
       bitches. What am I being arrested for?

RP (June 6, 2012) at 651-52 (emphasis added).

       At the next break, the deputy prosecutor argued that Monroe's assertion that "I

don't commit crimes" opened the door to the admission of his extensive adult and

juvenile criminal history. Defense counsel maintained that Monroe's comment did not

open the door to prior convictions because he was merely explaining that he did not

know why he was being arrested on this occasion. Counsel also noted that the jury was

unlikely to understand the comment as a general denial of criminal history because

Monroe had earlier admitted a conviction for "identity theft."

       After considering the issue overnight and hearing additional argument, the trial

court found that Monroe had attempted to create a "false impression with the jury" by

"describing this over-the-top arrest process on a person who is, you know, pure as the

driven snow but for this identity theft    " RP (June 6, 2012) at 689. The court

concluded that the testimony had opened the door to evidence of his significant criminal

history. After further argument and discussion, the court ruled that the State would be

able to ask Monroe about his adult felony and misdemeanor convictions without

specifying the number of convictions for each type of crime.

       During his direct-examination, Monroe described in detail what he perceived as

an unfairly aggressive arrest process. During the course of that description, Monroe

claimed, "I don't do nothing. Iwas just saying I don't do nothing. I don't commit crimes."



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Monroe provided this characterization of himself without any reservations or limitations.

Viewed in context, Monroe's statement suggested that he was generally a law-abiding

citizen, despite the prior conviction for identity theft. The trial court did not abuse its

discretion in concluding that Monroe had opened the door to evidence of his prior

criminal history.

       Juvenile Convictions


       After concluding that Monroe had opened the door to evidence of his criminal

history, the trial court limited the State's questioning to Monroe's adult felonies and

misdemeanors. The court explained, "I'm satisfied that that's the appropriate

boundaries [adult felonies and misdemeanors] to put on it that you've put on yourself

with the exception that I also want to have you make no reference to the juvenile

matters." RP (June 6, 2012) at 702 (emphasis added). Monroe contends that the

deputy prosecutor then blatantly violated the court's order by asking him about juvenile

convictions and that the trial court violated his right to a fair trial by failing to rectify the

misconduct.


       During cross-examination, Monroe acknowledged prior adult convictions for

unlawful possession of a firearm, bail jumping, and assaults, including misdemeanor

assault, felony assault, and custodial assault. The deputy prosecutor then asked

Monroe about convictions for arson, malicious mischief, reckless endangerment,

trespass, resisting and obstructing, and harassment. Monroe denied having ever been

convicted of malicious mischief and asserted that all of the remaining offenses,

including arson, involved juvenile convictions. Defense counsel raised no objection.
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       During the next recess, in response to a question from defense counsel, the trial

court confirmed that it had intended to exclude all juvenile history. Defense counsel

asked for a limiting instruction. The deputy prosecutor apologized and explained that he

had misunderstood the court's ruling to exclude only Monroe's juvenile felonies for

robbery and taking a motor vehicle.

       In considering how to address the admission of juvenile offenses, the court noted

that Monroe had erroneously asserted that his arson conviction was a juvenile offense

rather than an adult conviction. In addition, contrary to his testimony, Monroe informed

the court that the only juvenile offenses at issue were reckless endangerment, malicious

mischief, and harassment. The court found that under the circumstances, an instruction

that simply directed the jury to disregard references to juvenile convictions would be

misleading and inaccurate.

       Defense counsel conceded that a limiting instruction "could be awkward" and

declined the court's invitation to propose a limiting instruction that not only reflected the

court's ruling but also corrected Monroe's erroneous characterization of his juvenile

history. RP (June 7, 2012) at 742. The trial court eventually decided that it would not

give a special limiting instruction on juvenile offenses and would rely solely on the

pattern instruction for prior convictions admitted under ER 609.1

       While the Court's view was that the juvenile--the more remote in time-this will
       just take a second--the more remote in time the conviction, the less probative


    1 Instruction 6, based on 11 Washington Practice: Washington Pattern Jury
Instructions: Criminal 5.05 at 172 (3d ed.) provided: "You may consider evidence that
the defendant has been convicted of a crime only in deciding what weight or credibility
to give to the defendant's testimony, and for no other purpose."

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      value it had with respect to the credibility, I agree with the State that it is-given
      the fact that the door was opened the way it was opened, it is—it has some
      probative value. I'm going to leave it to the jury with this limiting instruction,
       which I think covers it amply.
              It is complicated by the fact that there was an assertion that the arson was
       a juvenile offense, the first degree arson, which is probably the most serious of
       the—it's the only class A felony that I think was listed, was a juvenile matter. So
       I'm not going to muddy the waters by calling attention and potentially commenting
       on the evidence as to what was juvenile and what was adult.

RP (June 7, 2012) at 755-56.

       Monroe argues that the trial court erred in failing to give a limiting instruction, but

he fails to address all of the circumstances that the court considered in making its

decision. Monroe's testimony about his juvenile history was inaccurate. Among other

things, he characterized his adult conviction for first degree arson—a class A felony—as

a juvenile offense. Defense counsel acknowledged that any limiting instruction under

the circumstances would be "awkward" and made no attempt to draft an appropriate

instruction. Although an accurate limiting instruction would have addressed three

juvenile misdemeanors, it might also have emphasized the existence of Monroe's most

serious adult conviction and suggested that Monroe had falsely described his juvenile

history. The State did not attempt to correct the inaccuracies in Monroe's testimony.

Under the circumstances, the trial court did not abuse its discretion in relying on the

standard pattern instruction for prior convictions. See State v. Walker. 136 Wn.2d 767,

771-72, 966 P.2d 883 (1998) (trial court's decision to give a particular limiting instruction

is reviewed for an abuse of discretion).

       Moreover, any error in the admission of the three juvenile offenses was

harmless. The reference to each offense was brief. Monroe flatly denied ever



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committing malicious mischief and explained that the harassment conviction involved

"arguing over a bike," and the State never offered any rebuttal evidence to challenge his

assertions. RP (June 7, 2012) at 714. Finally, Monroe was charged with promoting

prostitution in the first degree. Nothing in the record suggested that the circumstances

of the juvenile misdemeanors were similar to the charged offense or that they might

have triggered an emotional response by the trier of fact. Given the unchallenged

evidence of Monroe's criminal history, there was no reasonable likelihood that the

admission of the three juvenile offenses had any effect on the outcome of the trial. See

State v. Gresham. 173 Wn.2d 405, 433, 269 P.3d 207 (2012).

       Juror Misconduct

       During a recess, defense counsel informed the court that "somebody in the

audience said ... a juror might've been sleeping for a while, and another juror next to

them are nudging them awake." RP (June 5, 2012) at 477. The judge responded that

she had not noticed the incident and commented, "[l]t is something that we have to

battle against from time to time in the afternoons." RP (June 5, 2012) at 477. After the

deputy prosecutor indicated he had not seen anything, the court asked for counsels'

assistance in watching out for any potential misconduct. Defense counsel agreed.

Monroe contends that the trial court violated his right to a fair trial when it failed to

investigate the possible juror misconduct.

       The trial judge has a duty "to excuse from further jury service any juror, who in

the opinion of the judge, has manifested unfitness as a juror by reason of. . .

inattention ... or by reason of conduct or practices incompatible with proper and



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efficient jury service." RCW 2.36.110. 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 jury. State v. Jorden. 103 Wn. App. 221, 226-27, 11 P.3d 866 (2000). The

trial court need not follow any particular format in establishing a record of juror

misconduct and has broad discretion to resolve misconduct issues "in a way that avoids

tainting the juror and, thus, avoids creating prejudice against either party." Jorden. 103

Wn. App. at 229.

       Here, defense counsel communicated an anonymous report that an unidentified

juror "might've been sleeping for a while." Neither counsel nor the trial judge had

observed the alleged incident. Defense counsel raised no objection, did not request an

investigation, and agreed to assist in watching out for any future misconduct. Given the

vague nature of the reported conduct, the trial court's decision to forgo an immediate

investigation and focus additional attention on the jurors was reasonable. The record

contains no further allegation of juror misconduct.

       Monroe asserts that he is "entitled to a new trial regardless of whether the record

shows misconduct occurred." Br. of Appellant at 44. But he relies solely on decisions in

other jurisdictions involving specific and corroborated incidents of possible juror

misconduct. See, e^, People v. Valerio, 141 A.D.2d 585, 529 N.Y.S.2d 350 (1988)

(trial judge failed to conduct inquiry despite announcing that "[w]e had two jurors that
were dozing"); People v. South. 177 A.D.2d 607, 576 N.Y.S.2d 314 (1991) (trial court

observed juror with eyes closed); Commonwealth v. Dancv. 75 Mass. App. Ct. 175, 912
N.E.2d 525 (2009) (trial court observed juror repeatedly falling asleep). No comparable


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circumstances were present here. The trial court's failure to undertake an immediate

investigation was not an abuse of discretion.

       Ineffective Assistance of Counsel

      Monroe next contends that defense counsel's performance was constitutionally

deficient. He therefore bears the burden of demonstrating (1) that defense counsel's

representation fell below an objective standard of reasonableness and (2) resulting

prejudice, Le., a reasonable probability that but for counsel's deficient performance, the

result of the proceeding would have been different. State v. McFarland, 127 Wn.2d

322, 334-35, 899 P.2d 1251 (1995). We begin our analysis with the "strong

presumption" that counsel's performance was reasonable. State v. Kvllo. 166 Wn.2d

856, 862, 215 P.3d 177 .(2009). To rebut this presumption, Monroe must establish the

absence of any conceivable legitimate tactic explaining counsel's performance. State v.

Grier. 171 Wn.2d 17, 42, 246 P.3d 1260 (2011). We review ineffective assistance

claims de novo. State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).

      Venue

       Monroe asserts that the case should have been tried in Snohomish County and

that defense counsel was therefore deficient because she failed to challenge venue in

King County or propose that venue be included in the jury instructions. But the record

establishes that venue was proper in King County.

       Generally, criminal actions must be commenced in the county where the offense,

or an element of the offense, was committed. CrR 5.1(a). Under article I, section 22 of

the Washington Constitution, the defendant has the right "to have a speedy public trial



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... [in] the county in which the offense is charged to have been committed .. . ." Ifthere

is "reasonable doubt whether an offense has been committed in one of two or more

counties, the action may be commenced in any such county." CrR 5.1(b).

        Venue is not an element of a crime, and the defendant must generally raise any

challenge before trial. State v. Dent. 123 Wn.2d 467, 479-80, 869 P.2d 392 (1994). If

the defendant challenges venue based on evidence presented during trial, the State

must prove venue by a preponderance of the evidence. Dent, 123 Wn.2d at 480-81.

        In order to convict Monroe of promoting prostitution in the first degree, the State

had to prove that he knowingly advanced prostitution or profited from prostitution by

compelling JW with threat or force to engage in prostitution. RCW 9A.88.070(1)(a). A

defendant advances prostitution by causing or aiding another person to engage in

prostitution or engaging "in any other conduct designed to institute, aid, or facilitate an

act or enterprise of prostitution." RCW 9A.88.060(1).

        The State presented evidence that Monroe began pressuring JW to work for him

as a prostitute while he was living in Kirkland and she was living in Renton. Shortly

after moving in with Monroe in Kirkland, JW began "walking" for him. Monroe drove JW

from Kirkland to Highway 99, dropped her off, and then picked her up when she was

done.

        Because the State presented evidence that Monroe advanced prostitution in King

County, venue was proper in King County. CrR 5.1(a)(2). Consequently, Monroe

cannot demonstrate that'defense counsel's failure to challenge venue was either




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deficient performance or prejudicial.

       Agent Vienneau's E-mail

       Monroe contends that defense counsel was ineffective for failing to present

evidence about Agent Vienneau's "crucial e-mail that stated his belief at the time

that Monroe was not a threat to the alleged victim." Br. of Appellant at 53. When

defense counsel sought to cross-examine Detective Jaycin Diaz about the contents of

the e-mail, the trial court sustained the State's hearsay objections. Monroe argues that

defense counsel should have asked Agent Vienneau about the e-mail to avoid the

hearsay objections.

       To support his argument, Monroe cites only defense counsel's attempt to ask

Detective Diaz whether "that e-mail actually state[s] that [JW] was prostituting." Br. of

Appellant at 54. But Monroe makes no showing that Agent Vienneau's e-mail offered

any opinion on Monroe or the potential threat that he may have posed to JW.

Consequently, his claim of ineffective assistance necessarily fails.

       Failure to Call Victoria Burden

       Monroe next contends that defense counsel was ineffective for failing to call

Victoria Burden "or any other defense witness." Br. of Appellant at 57. But the decision

whether to call a specific witness is generally a matter of trial strategy that will not

support a claim of ineffective assistance. State v. Maurice. 79 Wn. App. 544, 552, 903

P.2d 514 (1995). Moreover, Monroe fails to identify what Burden or any other potential

defense witness would have said. See State v. Weber. 137 Wn. App. 852, 858, 155

P.3d 947 (2007) (The failure to investigate or call witnesses is not prejudicial unless the



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record establishes that the witnesses would have been helpful to the defense.). His

claim that Burden "likely" would have testified that she never witnessed Monroe threaten

JW is unsupported by anything in the record and therefore cannot be addressed on

direct appeal. See McFarland. 127 Wn.2d at 337-38.

       Inadeguate Trial Preparation

       Finally, Monroe contends that retained defense counsel, who substituted in six

days before trial began at his insistence, was unprepared for trial. He fails, however, to

identify any instances of deficient performance beyond those already alleged. For the

reasons already discussed, Monroe has made no showing that defense counsel's

failure to challenge venue, call additional defense witnesses, and or cross-examine

Agent Vienneau about his e-mail was deficient performance or prejudicial. His claims of

inadequate trial preparation are therefore without merit.

       Affirmed.




WE CONCUR:




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