       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                 )     No. 78925-2-I
                                          )
                       Respondent,        )     DIVISION ONE

               v.                         )     UNPUBLISHED OPINION

 ELJAY BERN ETTE MITCHELL,                )
                                          )
                  Appellant.              )
_________________________________         )     FILED: March 9, 2020

       HAZELRIGG, J.   —   Eljay B. Mitchell seeks reversal of his convictions for

second degree burglary and violation of an anti-harassment order, arguing that his

trial counsel was ineffective and that the State’s evidence was insufficient.

Because the State concedes that it did not present sufficient evidence to prove

that Mitchell knew of the existence of the anti-harassment order, we reverse that

conviction. However, because Mitchell cannot show that he was prejudiced by his

attorney’s allegedly deficient performance, we affirm the burglary conviction.


                                      FACTS

      Eljay Mitchell worked as an assistant manager at Roosevelt Self Storage

for about three years.     Kevin Purdy was the district manager for the storage

facility’s parent company.    As part of his management duties, Purdy visited

Roosevelt Self Storage about three times per month and was familiar with the

employees who worked there, including Mitchell. Purdy fired Mitchell in January
No. 78925-2-1/2

2017. Mitchell was upset about the termination and refused to return his work keys

that provided access to all parts of the facility.

        In February 2017, management obtained an anti-harassment protection

order against Mitchell restraining him from going within   1,000   feet of Roosevelt

Self Storage for one year. Mitchell was not present at the protection order hearing

and neither he nor his attorney signed the order.       The order stated that the

restraints in the order were the same as those in the temporary order, with which

Mitchell had been personally served, and “[f]urther service [was] not required.”

(Alterations in original).

       On March 13, 2017, there was a break-in at Roosevelt Self Storage shortly

after midnight. The storage facility was equipped with security cameras. The

videos showed someone entering Roosevelt Self Storage through an unsecured

garage door, walking around the facility, and carrying a white banker’s box.

Multiple security cameras captured the person walking around the facility over a

period of more than three hours. The person appeared to be a man wearing an

orange shirt, a tie, and a black scarf with nothing covering his bald head or face.

The person opened a utility closet that would have required a key for access.

Management discovered that the alarm had sounded the next morning and told

police they recognized the man in the security footage as Mitchell.

       On March 27, 2017, an employee left the front office of Roosevelt Self

Storage unlocked during business hours while showing a customer a storage unit.

The security camera in the office captured video of a person dressed in a black

hooded jacket entering the office, walking behind the counter to the place where



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the cash drawer was located, and leaving through the front door. The hood of the

person’s jacket was pulled tight around their face. Cash and deposits were taken

from the cash drawer. The cash drawer required a key to open. After this incident,

management started storing the cash drawer in a different location at the facility.

       In the early hours of April 17, 2017, the security cameras recorded the glass

front door of the office shattering. About half an hour later, the videos showed a

person entering through the broken door and walking behind the counter in the

front office near where the cash drawer was located before it was moved. The

person appeared to be wearing a black hooded jacket with the hood pulled tight

around their face.

       Mitchell was charged with violation of an anti-harassment order and three

counts of burglary in the second degree. The charging document alleged that

Mitchell had, “on or about March 13, 2017,” willfully disobeyed the terms of “a civil

anti-harassment protection order issued under RCW chapter 10.14 by being within

1000 feet of 6910 Roosevelt Way NE, in violation of the terms of said order.”

      At trial, the jury was shown the security videos of all three incidents and still

photographs from the March 13, 2017 footage. Purdy testified that he was 100

percent certain that the man in the still photographs was Mitchell. He also testified

that he was confident that he recognized the man in the March 27, 2017 videos as

Mitchell and that the man was wearing a North Face jacket that Mitchell commonly

wore. Purdy testified that the man in the April 17, 2017 videos was wearing the

same jacket as the man in the March 27, 2017 videos and that he was confident

that the man was Mitchell.



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No. 78925-2-1/4

       Seattle Police burglary detective Ron Traverso also testified at the trial that

he had investigated the three incidents at Roosevelt Self Storage.            Traverso

testified that he had not gone to the storage facility as part of his investigation, but

had watched the security footage, reviewed the incident reports, and taken

statements from Purdy and another manager. He stated that he had never come

in contact with Mitchell.

       On cross-examination, defense counsel asked if Traverso recognized the

person in the security videos.        He responded that he compared the still

photographs of the person in the videos to the driver’s license photo of the person

that the employees believed to be the person in the videos; but otherwise had

never seen the person.         On redirect examination, Traverso identified the

Department of Licensing photograph that he had compared with the subject of the

security video during the investigation.       The photograph was admitted into

evidence.    On recross examination, defense counsel elicited testimony that

Traverso believed that the person in the videos was the same as the one in the

driver’s license photo, but he had not interacted with the person in the videos.

       The jury found Mitchell guilty of the March 13, 2017 burglary and guilty of

violating the anti-harassment order. The jury found Mitchell not guilty of the other

two burglary charges. He was sentenced to six months of work/education release

and electronic home detention.




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No. 78925-2-1/5

                                      ANALYSIS

        Ineffective Assistance of Counsel

        Mitchell contends that his trial counsel was ineffective because he opened

the door to otherwise inadmissible identification evidence from Detective Traverso.

Mitchell argues that his counsel’s deficient performance was prejudicial because

identity was the key issue disputed at trial and Traverso’s identification was one of

the key facts distinguishing the burglary charge on which the jury convicted from

the two burglary charges of which Mitchell was acquitted.

        Every defendant in a criminal case has the constitutional right to effective

assistance of counsel. U.S. Const. amend VI; Const. art. 1         § 22; Strickland v.
Washington, 466 U.S. 668, 685—86, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

Counsel’s assistance is ineffective when the attorney’s performance was deficient

and the deficiency prejudiced the defendant. Strickland, 466 U.S. at 687; State v.

Thomas, 109 Wn.2d 222, 229, 743 P.2d 816 (1987). If either prong of the test is

not satisfied, our inquiry ends. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d

563 (1996).

        Deficient performance is that which falls below an objective standard of

reasonableness based on consideration of all the circumstances. State v.

McFarland, 127 Wn.2d 322, 334—35, 899 P.2d 1251 (1995). There is a strong

presumption that counsel’s representation was effective. Id. at 335. Counsel’s

performance is not deficient if it can be characterized as legitimate trial strategy or

tactics. ki. at 336.




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No. 78925-2-116

       To show that deficient performance prejudiced the defendant, the appellant

must show that, in the absence of the alleged error, there is a reasonable

probability that the result of the proceeding would have been different. Strickland,

466 U.S. at 694. “It is not enough ‘to show that the errors had some conceivable

effect on the outcome of the proceeding.’ Counsel’s errors must be ‘so serious as

to deprive the defendant of a fair trial, a trial whose result is reliable.” Harrinqton

v. Richter, 562 U.S. 86, 104, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) (quoting

Strickland, 466 U.S. at 693, 387) (internal citation omitted). “The likelihood of a

different result must be substantial, not just conceivable.” ki. at 112.

       Despite Mitchell’s contention that “the March 13 video is not high quality;

the suspect’s face can never be seen close up; and there were no eyewitnesses

to the burglary[,j” the subject’s face and head are fully visible and uncovered in the

videos of the first incident. In the second and third videos, the subject’s head and

most of his face were covered. Purdy, who interacted with Mitchell regularly for

three years, testified that he was 100 percent certain that the person in the videos

was Mitchell. The jury also had the opportunity to compare the person in the videos

with the driver’s license photograph, as well as with the defendant in the courtroom.

Even if Traverso had not testified that he believed the person in the security

footage was the person in the driver’s license photograph, there is no reasonable

probability that the result of the proceeding would have been different. Because

he cannot show prejudice, Mitchell’s claim of ineffective assistance of counsel fails.




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No. 78925-2-1/7

II.           Sufficiency of Evidence

              Mitchell also argues that there is insufficient evidence that he knew of the

anti-harassment order and willfully disobeyed it.

              Due process requires that the State prove beyond a reasonable doubt every

fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364,

90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).                     The appellate court reviews the

sufficiency of the evidence by assessing whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt,

viewing the evidence in the light most favorable to the State. State v. VasQuez,

178 Wn.2d 1, 6, 309 P.3d 318 (2013). If the appellate court finds the evidence

insufficient to prove a charge, it must reverse the conviction and dismiss the charge

with prejudice. Statev. Hickman, 135 Wn.2d 97, 103, 954 P.2d 900 (1998).

          The State concedes that it did not establish that Mitchell knew of the

existence of the February 8, 2017 anti-harassment order. We accept the State’s

concession and reverse Mitchell’s conviction for violation of an anti-harassment

order.1

          Affirmed in part, reversed in part.




WECONCUR:                                                           1           h



          1            we reverse this conviction for insufficient evidence e do not reach Mitchell’s
argumen ~            ~ harging document omitted an essential element of the charged anti-harassment
order vio


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