                                                                     FILED
                                                             COURT OF APPEALS
                                                              STATE OF IVASHINGTOU
                                                             2011 JUL -3 All 6:39




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON                       )
                                          )       DIVISION ONE
                       Respondent,        )
                                          )       No. 74745-2-1
                  v.                      )
                                          )       PUBLISHED OPINION
BRYAN EUGENE STREEPY,                     )
                                          )       FILED: July 3, 2017
                       Appellant.         )
                                          )

       DWYER,J. — Bryan Streepy appeals from the judgment entered on a jury's

verdict finding him guilty of attempted assault in the second degree, harassment

based upon threats to kill, four counts of unlawful possession of a firearm in the

second degree, and assault in the fourth degree. On appeal, Streepy contends

that the trial court erred by admitting testimony setting forth out-of-court

statements of the victim's son and by declining his request to cross-examine the

victim regarding her immigration status. We disagree and, accordingly, affirm the

convictions.

       Streepy also contends, and the State concedes, that the trial court erred

by failing to treat the convictions for attempted assault and felony harassment as

constituting the same course of criminal conduct for sentencing purposes. We

accept this concession and remand for resentencing.
No. 74745-2-1/2




       Streepy and his ex-fiancé, J.G., lived together in Oak Harbor, Washington.

J.G.'s sister, her two children, and J.G.'s seven-year-old son, S.G., also resided

in the apartment. Streepy was emotionally and physically abusive toward J.G.

throughout their relationship.

       In September 2015, Streepy became irate and began screaming at J.G.,

punching walls, and ordering her to leave the apartment. J.G. moved out but

later agreed to return to the apartment after Streepy apologized and offered to let

J.G. stay in the apartment by herself while he looked for another accommodation.

Although Streepy initially left the apartment, he moved back in shortly after J.G.

returned.

       After the two resumed living together, Streepy became convinced that J.G.

was cheating on him. On October 5, 2015, J.G. rebuffed Streepy's attempt to

have sex with her. Streepy began screaming at J.G., calling her a "lying little

cheating whore." J.G. then laid on the couch, where upon Streepy began

punching her shoulder and the pillow behind her head. Streepy told J.G. that he

"was a Marine and that if he really wanted to he could really hurt [J.G.] like he

hurt his enemies at war."

       On October 14, 2015, J.G. returned from work and fell asleep on the

couch with S.G. Shortly thereafter, Streepy awakened J.G. and commanded her

to sleep in the bedroom. J.G. refused and Streepy became upset. J.G. brought

S.G. into the bedroom with her—hoping that S.G.'s presence would placate

Streepy—and tried to fall asleep. Streepy came into the room, pinned J.G. down,


                                         2
No. 74745-2-1/3


and asked her to explain why she would not be intimate with him. J.G. told

Streepy that she was afraid of him. Streepy became upset and began screaming

at J.G. that she was a cheating whore and a slut and that she needed to pack her

stuff. J.G. told S.G. to go into the other room.

       J.G. and Streepy argued and Streepy threw himself at J.G., pulling her

hair, screaming at her, and trying to gouge °Littler eye. Streepy began to choke

J.G., shouting at her that he was going to kill her. S.G. returned to the bedroom

and starting screaming. Streepy yelled at S.G. to "shut up, bitch!" J.G.'s sister

started calling out for J.G. J.G. ran into her sister's bedroom and told her sister

that Streepy was trying to kill her. Streepy then began to argue with J.G.'s sister,

yelling at her to get out of the apartment. J.G. ran into the bathroom and called

911. J.G. could hear Streepy coming toward the bathroom so she abruptly

ended the 911 call and ran back into the bedroom. Streepy found J.G. in the

bedroom, shoved her against the dresser, threw her on the bed, and began trying

to choke her again.

       Two police officers arrived while the struggle was still ongoing. From

outside of the apartment, the officers could hear Streepy shouting. The officers

knocked on the door. Streepy answered, wearing a backpack. The officers

asked Streepy to step outside and place the backpack on the ground. Officer

Michael Clements went inside to check on J.G. while Officer Mel Lolmaugh

stayed outside with Streepy. Streepy continued to be aggressive and hostile

toward Officer Lolmaugh and Officer Lolmaugh was forced to handcuff Streepy

for the officer's own safety.


                                         3
    No. 74745-2-1/4


           Inside the apartment, Officer Clements found J.G. shaking and obviously

    upset. Officer Clements asked J.G. what had happened. J.G. told Officer

    Clements that she and Streepy had an argument and that Streepy had tried to

    choke her. Officer Clements then asked S.G., who was standing nearby, what

    he saw. S.G. was terrified and crying. S.G. told Officer Clements that Streepy

    was punching his mom and saying that he was going to kill her.

           Based on the statements made by J.G. and S.G., the officers found

    probable cause to arrest Streepy. After the arrest, Officer Clements searched

    Streepy's backpack and found a handgun inside. Several other firearms were

    later discovered in Streepy's bedroom and inside of Streepy's vehicle. A third

    police officer arrived at the apartment shortly after the arrest and that officer

    conducted a formal interview of J.G., her sister, and S.G.
_
           Prior to trial, the State moved to exclude evidence regarding J.G.'s

    immigration status and potential eligibility for a visa. The trial court granted the

    motion after hearing testimony from J.G. Counsel for Streepy then moved to

    exclude from evidence the statements that S.G. made to Officer Clements.' The

    trial court denied the motion. Streepy was found guilty of attempted assault in

    the second degree, harassment based upon threats to kill, four counts of

    unlawful possession of a firearm in the second degree, and assault in the fourth

    degree. He timely appeals.




          'S.G. did not testify at trial.
                                              4
No. 74745-2-1/5


                                                II

        Streepy first contends that the trial court violated the confrontation clause

of the Sixth Amendment to the United States Constitution by ruling that S.G.'s

utterances to Officer Clements were nontestimonial and thus admissible. This is

so, he asserts, because the primary purpose of the exchange between Officer

Clements and S.G. was to create an out-of-court substitute for trial testimony.

We disagree.

        We review de novo an alleged violation of the confrontation clause. State

v. Koslowski, 166 Wn.2d 409, 417, 209 P.3d 479(2009). The confrontation

clause bars the admission of "testimonial" hearsay in criminal trials unless the

declarant is unavailable to testify and the defendant had a prior opportunity for

cross-examination. U.S. CONST. amend. VI; Crawford v. Washington, 541 U.S.

36, 53-54, 124 S. Ct. 1354, 158 L. Ed. 2d 177(2004). The United States

Supreme Court declined to define "testimonial" in Crawford2 but an important

factor is "the declarant's awareness or expectation that his or her statements

may later be used at a trial." United States v. Marguet-Pillado, 560 F.3d 1078,

1085 (9th Cir. 2009)(quoting United States v. Larson, 460 F.3d 1200, 1213(9th

Cir. 2006)).

        Subsequent case law has determined that a statement is testimonial

when,"in light of all the circumstances, viewed objectively, the 'primary purpose'

of the conversation was to `creat[e] an out-of-court substitute for trial testimony."




        2'We leave for another day any effort to spell out a comprehensive definition of
'testimonial." Crawford, 541 U.S. at 68.

                                              -5-
No. 74745-2-1/6


Ohio v. Clark,      U.S.   , 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306(2015)

(alteration in original)(quoting Michiaan v. Bryant, 562 U.S. 344, 358, 131 S. Ct.

1143, 179 L. Ed. 2d 93(2011)). "[T]he relevant inquiry is not the subjective or

actual purpose of the individuals involved in a particular encounter, but rather the

purpose that reasonable participants would have had, as ascertained from the

individuals' statements and actions and the circumstances in which the

encounter occurred." Bryant, 562 U.S. at 360(emphasis added).

       When "the primary purpose of an interrogation is to respond to an

'ongoing emergency,' its purpose is not to create a record for trial and thus is not

within the scope of the [Confrontation] Clause." Bryant, 562 U.S. at 358. But

"the existence vel non of an ongoing emergency is not the touchstone of the

testimonial inquiry." Bryant, 562 U.S. at 374. Rather,"whether an ongoing

emergency exists is simply one factor... that informs the ultimate inquiry

regarding the 'primary purpose' of an interrogation." Bryant, 562 U.S. at 366.

Additional factors include "the informality of the situation and the interrogation,"

as well as the age of the declarant. Clark, 135 S. Ct. at 2180-82(quoting Bryant,

562 U.S. at 377).

       Here, neither party disputes that S.G. was unavailable to testify or that

Streepy had no prior opportunity to cross-examine him. Thus, the sole issue is

whether S.G.'s utterances to Officer Clements were testimonial.

       Police arrived at the apartment while Streepy was actively assaulting J.G.

The officers could hear Streepy yelling from outside of the apartment but could

not physically see what was happening inside. The officers questioned Streepy


                                         6
No. 74745-2-1/7


upon arrival but Streepy was irate in responding to the officers and had to be

handcuffed for the officers' safety. When Officer Clements entered the

apartment, he asked J.G. and her seven-year-old son what had happened. The

statements that S.G. made to Officer Clements contributed to the officer's

knowledge of probable cause to arrest Streepy and thus prevented the assault

from recommencing. As ascertained from the statements that S.G. made and

the circumstances surrounding the utterances, objectively viewed, a reasonable

child in S.G.'s positon would not have made such statements for the primary

purpose of providing an out-of-court substitute for trial testimony.

         S.G.'s age lends credence to the conclusion that his statements were

nontestimonial. Indeed, as the United States Supreme Court recognized in

Clark,

                 [The declarant's] age fortifies our conclusion that the
         statements in question were not testimonial. Statements by very
         young children will rarely, if ever, implicate the Confrontation
         Clause. Few preschool students understand the details of our
         criminal justice system. Rather,"Diesearch on children's
         understanding of the legal system finds that" young children "have
         little understanding of prosecution." Brief for American Profession
         Society on the Abuse of Children as Amicus Curiae 7, and n. 5
         (collecting sources). And Clark does not dispute those findings.
         Thus, it is extremely unlikely that a 3-year-old child in [the
         declarant's] position would intend his statements to be a substitute
         for trial testimony. On the contrary, a young child in these
         circumstances would simply want the abuse to end, would want to
         protect other victims, or would have no discernible purpose at all.

135 S. Ct. at 2181-82.

         For the purpose of viewing the encounter objectively, we see little

difference between the preschooler discussed in Clark and the terrorized seven-

year-old here at issue.

                                           7
No. 74745-2-1/8


        For his part, Streepy misapprehends the relevant inquiry and focuses

solely on whether there was an ongoing emergency when Officer Clements first

spoke with S.G. Streepy contends that there was no ongoing emergency

because (1) S.G. was describing past events, rather than events currently

unfolding,(2) police had already handcuffed Streepy by the time that S.G. spoke

to Officer Clements, and (3) S.G.'s statements were not necessary to resolve any

emergency.3

        Streepy's assertions are without merit. Streepy was irate when police

arrived at the apartment and his demeanor did not improve during the encounter.

Officer Clements questioned S.G. mere moments after interrupting the ongoing

crime and, although the questions and answers were grammatically in the past-

tense,"the statements were made contemporaneously with the events

described." State v. Oh!son, 162 Wn. 2d 1, 17, 168 P.3d 1273(2007)(citing

Davis v. Washinoton, 547 U.S. 813,827, 126 S. Ct. 2266, 165 L. Ed. 2d 224

(2006)). The fact that Streepy had already been placed in handcuffs likewise

does not establish that the emergency had ended. Officer Clements testified that

it was not until after questioning J.G. and S.G. that he had probable cause to

arrest Streepy. Streepy was placed in handcuffs prior to being arrested solely for



         3 Streepy also inexplicably asserts that, because the questioning took place inside the
apartment,"with his mother by his side," the exchange was a formal interrogation. Br. of
Appellant at 18. He cites to our decision in State v. Reed, 168 Wn. App. 553, 564, 278 P.3d 203
(2012)("[D]isorganized questioning in an exposed, public area that is neither tranquil nor safe
tends to indicate the presence of an ongoing emergency."). Streepy's contention—that the scene
of a violent assault interrupted by police presence somehow constitutes a tranquil and safe
environment—is unavailing. Moreover, any secondary purpose that Officer Clements may have
had in eliciting the statements from S.G. is immaterial so long as the primary purpose that a
reasonable participant in S.G.'s position, considering all of the facts, would have had was other
than to create an out-of-court substitute for trial testimony. Clark, 135 S. Ct. at 2180.

                                              -8 -
No. 74745-2-1/9


the officers' safety. J.G. and S.G. were not safe, and the emergency was not

resolved, until the officers actually arrested Streepy.

       Viewed properly, the primary purpose of the challenged utterances was

other than to create an out-of-court substitute for trial testimony. Clark, 135 S.

Ct. at 2180. Thus, the utterances were not testimonial. Accordingly, no

confrontation clause violation is established.

                                          Ill

       Streepy next contends that the trial court violated his right to confrontation

when it prohibited him from cross-examining J.G. regarding her immigration

status. This is so, he asserts, because such evidence was relevant to J.G.'s

motivation as a witness. Streepy is wrong.

       We review a trial court's limitation of the scope of cross-examination for an

abuse of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189(2002).

"When a trial court's exercise of its discretion is manifestly unreasonable or

based upon untenable grounds or reasons, an abuse of discretion exists." State

v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615(1995). We may affirm a trial

court's decision as to the admissibility of evidence on any basis supported by the

record. State v. Norlin, 134 Wn.2d 570, 582, 951 P.2d 1131 (1998).

       Both the federal and state constitutions guarantee a criminal defendant

the right to confrontation, including the right to conduct a meaningful cross-

examination of adverse witnesses. U.S. CONST. amend VI; CONST. art. I, § 22;

Darden, 145 Wn.2d at 620. But the right to cross-examine adverse witnesses is

not absolute. Darden, 145 Wn.2d at 620-21 ("The confrontation right and


                                          9
No. 74745-2-1/10


associated cross-examination are limited by general considerations of

relevance." (citing ER 401, ER 403)). "Relevant evidence" is evidence "having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence." ER 401.

        Here, Streepy sought to cross-examine J.G. regarding her immigration

status and knowledge of a U visa. A U visa provides undocumented immigrants

who are victims of certain crimes with temporary protection from removal.4

Streepy argued that J.G.'s immigration status was relevant to her motivation as a

witness.

        The trial court allowed Streepy to make an offer of proof in the form of

testimony from J.G. J.G. testified that she was not a U.S. citizen or a lawful

permanent resident. J.G. testified that she was granted deferred action for

childhood arrivals(DACA)status. J.G. testified that she was informed of the U

visa in group therapy. J.G. testified that she was aware that by alleging a

criminal offense she may be eligible for a U visa. J.G. also testified that she had

not started filling out paperwork for the U visa, had not contacted immigration to

go forward with a U visa application, and had decided to not apply for the U visa

in light of her DACA status.




        4 See Victims of Criminal Activity: U Nonimmigrant Status, U.S. CITIZENSHIP & IMMIGR.
SERVS., https://www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-
criminal-activity-u-nonimmigrant-status/victims-criminal-activity-u-nonimmigrant-
status#Applying%20forc/020U%20NonimmigrantcY020Status%20(U%20Visa)
[https://perma.cc/J9BG-KYU7].

                                             - 10-
No. 74745-2-1/11


      The trial court then directly asked J.G. when she first learned of the U visa

program. J.G. testified that she heard of the U visa at her first group therapy

meeting, after Streepy's arrest. J.G. testified that she obtained DACA status in

2013 and that, based on her understanding of the DACA program, she was

lawfully in the United States.

       Based on J.G.'s testimony, the trial court found that J.G. was not aware of

the U visa program at the time of the incidents that gave rise to the charges

against Streepy. The trial court found that J.G. had decided against pursuing the

U visa program and that "the inference would be that she already has lawful

status here for the present time under the DACA program."

       The trial court found that evidence of J.G.'s immigration status was

minimally relevant. The trial court found that the U visa program was not

something that would have affected the way in which J.G. interacted with the

police, so it was not relevant in that regard. The trial court found that the

evidence was minimally relevant because "theoretically this could possibly affect

the testimony that she gives here at trial and could possibly have some effect

with regard to the issue of bias." Nevertheless, the trial court ultimately

determined that the risk of prejudice far outweighed the relevancy of the

evidence.

       The trial court's characterization of the evidence as "minimally relevant"

was generous. To the contrary, evidence of J.G.'s immigration status was not at

all relevant under these circumstances.
No. 74745-2-1/12


      The only evidence in the record relating to J.G.'s knowledge of the U visa

program establishes that J.G. was unaware of the program when she telephoned

911 and—minutes later—made statements to the police. Accordingly, J.G. could

not—at that time—have been motivated to make false allegations against

Streepy in order to obtain a U visa.

       J.G.'s immigration status remained irrelevant absent some indication that

she planned to offer trial testimony that differed from the statements that she had

made to the police upon Streepy's arrest. Because no such indication existed—

and because J.G.'s testimony at trial was consistent with the statements that she

made to the police—there was no logical connection between J.G.'s testimony

and her learning of the U visa program. Thus, J.G.'s immigration status does not

make the existence of any fact that is of consequence to the jury's determination

more probable or less probable than it would be without the evidence. ER 401.

Accordingly, the evidence was not relevant and was, thus, properly excluded.

       Moreover, the fact that J.G. honored her obligation to testify, and told the

jury the same things that she told the officers at the scene, did not provide fodder

for impeachment. There was nothing in the offer of proof that would have tended

to prove that J.G. would have absconded from trial or recanted her testimony had

she been unaware of the U visa program.

       Nevertheless, Streepy contends that the trial court misapprehended the

nature of J.G.'s DACA status and would have ruled differently had it fully




                                       - 12-
No. 74745-2-1/13


understood that J.G. could still face deportation.5 Streepy asserts that the trial

court should have taken judicial notice of the DACA so as to better understand

how the program functions.

        This contention abjectly fails. Whether J.G. actually resided in the United

States lawfully was immaterial. Rather, it was J.G.'s subjective beliefthat was

determinative. Because J.G. herself believed that she resided in the United

States lawfully, she had no motivation to provide false or exaggerated testimony

for purposes of avoiding deportation or securing a U visa. Thus, it is immaterial

how the trial court would have ruled had it possessed a different understanding of

the DACA program.

        We may affirm the trial court's ruling on any basis supported by the record.

Norlin, 134 Wn.2d at 582. Because evidence of J.G.'s immigration status was

not relevant, we conclude that the trial court did not abuse its discretion by

excluding the evidence.6

                                               IV

        Streepy next contends that he received ineffective assistance of counsel

because his counsel failed to request an Old Chief stipulation.

        Constitutionally ineffective assistance of counsel is established only when

the defendant shows that(1) counsel's performance, when considered in light of


         5 The trial court remarked that "if we were dealing with a situation where the alleged
victim was illegally in this country, was in danger of deportation, I would permit this cross-
exam ination to occur."
         6 Streepy also contends that he received ineffective assistance of counsel because his
counsel failed to request that the trial court take judicial notice of the DACA. Because taking
judicial notice of the DACA would not have changed the relevancy of J.G.'s immigration status,
this contention also fails.
         7 Old Chief v. United States, 519 U.S. 172, 191, 117 S. Ct. 644, 136 L. Ed. 2d 574
(1997).

                                             - 13-
No. 74745-2-1/14


all the circumstances, fell below an objectively reasonable standard of

performance, and (2)there is a reasonable probability that, but for counsel's

deficient performance, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S. Ct. 2052,80 L. Ed. 2d

674(1984); State v. Hassan, 151 Wn. App. 209, 216-17, 211 P.3d 441 (2009).

The burden is on the defendant to demonstrate deficient representation and

prejudice. In re Det. of Hatfield, 191 Wn. App. 378, 401,362 P.3d 997(2015).

Failing to satisfy either part of this analysis ends the inquiry. State v.

Hendrickson, 129 Wn.2d 61, 78,917 P.2d 563(1996).

      "Because the presumption runs in favor of effective representation, the

defendant must show in the record the absence of legitimate strategic or tactical

reasons supporting the challenged conduct by counsel." State v. McFarland, 127

Wn.2d 322, 336, 899 P.2d 1251 (1995). "[Title presumption of adequate

representation is not overcome if there is any 'conceivable legitimate tactic' that

can explain counsel's performance." Hatfield, 191 Wn. App. at 402(quoting

State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80(2004)).

       In Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d

574(1997), the United States Supreme Court recognized the prejudicial effect

that evidence of a defendant's prior conviction may have on the trial.

Accordingly, the Court announced that a trial court abuses its discretion when it

fails to accept a defendant's stipulation to a prior conviction upon the defendant's

request. State v. Humphries, 181 Wn.2d 708, 717, 336 P.3d 1121 (2014)(citing

Old Chief, 519 U.S. at 174). 'The most the jury needs to know is that the


                                        - 14-
No. 74745-2-1/15


conviction admitted by the defendant falls within the class of crimes that [the

legislature] thought should bar a convict from possessing a gun." Old Chief, 519

U.S. at 190-91.

        Here, the State charged Streepy with four counts of unlawful possession

of a firearm in the second degree. Pursuant to RCW 9.41.040(2)(a)(i), a person

is guilty of unlawful possession of a firearm in the second degree if that person

owns a firearm and has been previously convicted of assault in the fourth degree

committed by one family or household member against another. Streepy had

one such conviction.

        Counsel for Streepy initially intended to offer an Old Chief stipulation as to

the prior conviction. However, before. trial began, the trial court asked counsel to

confirm that Streepy was stipulating to the prior conviction. Counsel for Streepy

then expressly declined to stipulate to the prior offense.

              [Defense counsel]: Your Honor, I think at this point l*would
       not be making such-1'm not going to be requesting an Old Chief
       stipulation. I think that, based on what the jury has already heard, I
       don't think that it would serve any purpose from our perspective so
       I'm not going to be requesting that. 18)
               The Court: Just for purposes of clarification, by an Old Chief
       instruction, you're referring to an instruction that would simply tell
       the jury that it is agreed or stipulated that Mr. Streepy has the
       assault fourth degree-domestic violence conviction, or something to
       that effect, so that the state would not need to present the certified
       copy of the Judgment and Sentence in that regard?
              [Defense counsel]: That's correct, Your Honor. I see no
       purpose from my perspective in requesting such a stipulation.




         8 It is not clear from the record "what the jury has already heard." This exchange
occurred outside of the presence of the jury before voir dire had been completed. No reference
to the prior conviction had been made to the prospective jurors.

                                             - 15-
No. 74745-2-1/16


        Because Streepy declined to stipulate to the prior offense, the State was

forced to prove that the offense had been committed. To do so, the State

obtained a certified copy of a judgment and sentence document—from the

neighboring county in which the offense was committed—and offered that

document at trial to prove the prior conviction. The judgment and sentence

document was admitted, over Streepy's objection. The trial court issued a proper

limiting instruction. No other details of the prior offense were elicited.

        After the State rested its case in chief, the prosecutor noticed that the

judgment and sentence document did not list the date of the offense—a crucial

element of the State's case.9 This fatal flaw in the State's evidence forced the

State to move to reopen its case in chief, a request granted by the trial court over

Streepy's objection.

        The State proposed obtaining a certified copy of the statement of

defendant on plea of guilty for the prior offense in order to prove the date of the

offense. The trial court then asked defense counsel if Streepy would stipulate to

the date of the offense so that the State did not have to go through the process of

obtaining the certified document. Streepy declined to so stipulate. The trial court

recessed the trial and the State soon obtained a certified copy of the document

from the neighboring county and sought to admit the document at trial. Again,

Streepy objected. The trial court overruled the objection and admitted the

document into evidence.




         9 The jury instruction required the jury to find that the prior offense was committed on or
after July 1, 1993.

                                               -16-
No. 74745-2-1/17


        Taking all of this into consideration, there was a conceivable strategic

reason for Streepy's counsel to decline to stipulate to the prior conviction. The

record establishes that the judgment and sentence document initially relied on by

the State was incomplete and therefore insufficient to prove a crucial element of

the charged crimes. The record also establishes that defense counsel

interposed challenges to the State's reliance on this document, objecting to its

admission. Because the evidence relied on by the State failed to satisfy a crucial

element of the charged crimes, the State was required to obtain a certified copy

of the statement of defendant on plea of guilty during the trial court's recess.

Had the State failed to do so, Streepy would have argued that the State had ,

failed to prove every element of the charged crimes. Streepy's attorney chose to

put the State to its proof, having a reasonable belief that the prosecution might

fail to properly prove the prior conviction. The fact that this tactic did not, in the

end, succeed does not make it any less tactical. Streepy did not receive

ineffective assistance of counse1.1°

                                                V

        Finally, Streepy contends, and the State concedes, that resentencing is

necessary because the trial court erroneously concluded that attempted assault

in the second degree and felony harassment did not, in these circumstances,

encompass the same criminal conduct for purposes of calculating his offender

score. We accept the State's condession and remand for resentencing.




         10 Streepy also contends that cumulative error deprived him of a fair trial. Because we
find no error, Streepy's claim fails.
                                              -17-
No. 74745-2-1/18


      Remanded for resentencing, affirmed in all other respects.




We concur:



                   4scO"'




                                     -18-
