  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE
STATE OF WASHINGTON,                        )      No. 78078-6-I

                        Respondent,
                                            )
       v.
                                            )      UNPUBLISHED OPINION
JAMES MONTGOMERY,                           )
                                            )      FILED: September 23, 2019
                        Appellant.


       VERELLEN,   J.   —   James Montgomery appeals his conviction for one count of

fourth degree assault and two counts of attempted indecent liberties. Montgomery

argues the State failed to present sufficient evidence to support his conviction for

attempted indecent liberties in count 3. The State presented evidence that

Montgomery followed, tackled, and restrained E.H. as part of a common scheme

or plan to make forcible sexual contact with random women. There was sufficient

evidence to sustain his conviction on count 3.

       Montgomery also contends he received ineffective assistance of counsel.

Because defense counsel’s decision to withdraw his requested limiting instruction

was a reasonable trial tactic, Montgomery does not establish ineffective

assistance.
No. 78O78~6-II2


       Finally, Montgomery challenges the court’s imposition of the mental health

evaluation community custody condition. Because the court did not make the

statutorily required findings, we remand for the court to consider this condition

under RCW 9.94B.080.

       Therefore, we affirm but remand for proceedings consistent with this

opinion.

                                       FACTS

       The State charged Montgomery with one count of indecent liberties (C.B.)

and two counts of attempted indecent liberties (T.M. and E.H.). As to the count of

indecent liberties, the jury convicted Montgomery of the lesser charge of fourth

degree assault. As to the two counts of attempted indecent liberties, the jury

convicted Montgomery as charged.

       Montgomery appeals.

                                     ANALYSIS

I. Sufficiency of the Evidence

       Montgomery contends there was insufficient evidence to sustain his

conviction for attempted indecent liberties on count three (E.H.).

       We review sufficiency of the evidence de novo.1 To determine whether

there is sufficient evidence to sustain a conviction, we view the evidence in the

light most favorable to the State and ask whether any rational trier of fact could


       1 State v. Hummel, 196 Wn. App. 329, 352, 383 P.3d 592 (2016) (quoting
State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746(2016)).



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No. 78078-6-1/3


have found the essential elements of the crime beyond a reasonable doubt.2 “A

claim of insufficiency admits the truth of the State’s evidence and all inferences

that reasonably can be drawn therefrom.”3

       “A person is guilty of indecent liberties when he or she knowingly causes

another person to have sexual contact with him or her or another.     .   .   [b]y forcible

compulsion.”4 Because the State charged Montgomery with attempted indecent

liberties, the State must show Montgomery took a substantial step toward the

crime of indecent liberties, with the intent to commit that crime.5

       Montgomery claims the State failed to prove he intended to have sexual

contact with E.H. “Sexual contact’ means any touching of the sexual or other

intimate parts of a person done for the purpose of gratifying sexual desire of either

party or a third party.”6

       Here, on April 19, 2017, E.H. was walking in the Ravenna neighborhood of

Seattle.7 EM. noticed Montgomery walking a few steps behind her.8 She




       2   State v. Elmi, 166 Wn.2d 209, 214, 207 P.3d 439 (2009).
       ~ State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       ~ RCW 9A.44.100(1)(a).
       ~ RCW 9A.28.020.
       6   RCW 9A.44.010(2).
       ~ Report of Proceedings (RP) (Feb. 1, 2018) at 354, 360.
       8   kI. at 361.




                                           3
No. 78078-6-1/4


quickened her pace.9 After she turned back around, she felt pressure on her

arms.1° E.H. was ‘grabbed and forcibly pulled to the side.”11

      She ended up on her back, ‘laying on top of [her] backpack, on the

ground.”12 Montgomery grabbed her wrists and pinned them to the ground at her

sides.13 E.H. did not “recall where his lower body was, because it was very fast.”14

E.H. did recall that her “legs were bent upward and forcibly kicking” some part of

the man’s body.15 E.H. kicked, flailed, and screamed for help.16

      After less than a minute, Montgomery ran away when another man ran

across the street, and a car honked.17 At the time, E.H. was wearing her backpack

and headphones.18 Montgomery did not take any of her property.19

      A month and half earlier, on March 7, 2017, C.B. was walking home in the

Belltown neighborhood of Seattle.2° C.B. noticed Montgomery walking behind




      ~ Id.
      10   Id.
           Id. at 363.
      12   Id.
      13   kI. at 363-64.
      14kLat364.
      15 Id.

      16   kI. at 364-65.
      ~Id. at 366.
      18k1.at355-56.
      19 kI. at 367, 370.

      20   RP (Jan. 30, 2018) at 281.




                                         4
No. 78078-6-1/5


her.21 He followed her into her apartment building, into the elevator, and to her

apartment door.22 At her door, Montgomery grabbed her arms from behind.23

C.B. felt Montgomery touch her chest and breasts.24 She “felt like he was trying to

pull [her jacket] off.’25 C.B. screamed and her husband opened the door, pulled

C.B. into the apartment, and advanced towards Montgomery.26 Montgomery

backed away and left.27

       On April 17, 2017, T.M. was walking in the First Hill neighborhood of

Seattle.28 T.M. noticed Montgomery walking close behind her.29 He wrapped his

arms around her body and threw her to the ground.3° Montgomery knelt over T.M.

with his knees on either side of her waist.31 He tugged at the waistband of her

pants.32 The man walked away when a van pulled up and honked its horn.33




      21   kI. at 288.
      22k1.at291, 292-94.
      23k1.at295.
      24 ki. at 298-99, 303.

      25ki.at300.
      26 Id. at 295-96, 299, 301.
      27kf.at3Ol.
      28 RP (February 1, 2018) at 449.

      29   kJ. at 451-55.
           Id. at 455.
      31   kI. at 455-56.
      32   kI. at 458, 460.
           ki. at 461-62.



                                         5
No. 78078-6-1/6


       Police were able to find Montgomery based on his car. C.B., TM., and E.H.

individually identified Montgomery. Several other witnesses also identified him.

       At the start of trial, Montgomery moved to sever the three counts. The court

denied the motion and determined “[t]he evidence of what happened in each of the

alleged cases is cross-admissible because of the common scheme demonstrated

in each one.”34

       Montgomery followed E.H. He also followed C.B. and T.M. Montgomery

tackled E.H. to the ground and pinned her wrists to her sides. He also restrained

C.B. and T.M. Montgomery touched C.B.’s chest and breasts. And he tugged at

T.M.’s pants. Montgomery did not take any personal property from any of the

women. Montgomery did not know any of the women. In all three instances,

Montgomery walked away when third parties intervened. Although Montgomery

did not touch E.H.’s chest or breasts or tug at her pants, the evidence across all

three counts shows Montgomery had a common scheme or plan of following,

restraining, and forcibly making sexual contact with random women.35

      Viewing the evidence in the light most favorable to the State, the evidence

supports a reasonable inference that Montgomery took a substantial step toward


       ~ RP (Jan. 24, 2018) at 36.
        ~ See State v. DeVincentis, 150 Wn.2d Ii, 21, 74 P.3d 119 (2003)
(“[A]dmission of evidence of a common scheme or plan requires substantial
similarity between the prior bad acts and the charged crime. Such evidence is
relevant when the existence of the crime is at issue. Sufficient similarity is
reached only when the trial court determines that the ‘various acts are naturally to
be explained as caused by a general plan.”) (quoting State v. Lough, 125
Wash.2d 847, 860, 889 P.2d 487 (1995)).



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No. 78078-6-1/7


causing E.H. to have sexual contact with him when he followed, tackled, and

restrained her. We conclude Montgomery’s conviction for attempted indecent

liberties in count three was supported by sufficient evidence.

II. Ineffective Assistance of Counsel

       Montgomery seeks reversal and remand for a new trial due to ineffective

assistance of counsel. Montgomery argues defense counsel provided ineffective

assistance by withdrawing the limiting instruction.

       We review a claim of ineffective assistance of counsel de novo.36 The

defendant bears the burden of proving ineffective assistance of counsel.37 First,

the defendant must prove counsel’s performance was deficient.38 Second, the

defendant must show counsel’s deficient performance prejudiced his defense.39

       Here, before trial, defense counsel moved to sever each of the three

counts. The court denied the motion and determined the evidence in each count

was cross-admissible to show “the common scheme demonstrated in each one.”4°

When the court denied the motion, it indicated it would instruct the jury to consider

each count separately.




      36   State v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
        ~ State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011) (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674
(1984)).
        38 k~. at 32 (quoting Strickland, 466 U.S. at 687).

           ki. at 33 (quoting Strickland, 466 U.S. at 687).
      40   RP (Jan. 24, 2018) at 36.




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No. 78078-6-1/8


       At trial, after the State rested, the court denied defense counsel’s renewed

motion to sever. Subsequently, defense counsel proposed the following limiting

instruction. In part, the proposed instruction provided:

              Evidence admitted related to each distinct count can be
       considered for the other counts only for the limited purpose of
       determining whether the defendant engaged in a common scheme or
       plan or the defendant’s identity, but not for considering the
       defendant’s motive or intent, or for any other purpose related to the
       other counts.~411

       In response, the court proposed the following language:

                 Evidence admitted related to each distinct count may be
       considered for the other counts only for the limited purposes of
       determining whether the defendant engaged in a common scheme or
       plan, or determining the defendant’s identity. You may not consider
       such evidence for any other purpose. Any discussion of the
       evidence during your deliberations must be consistent with this
       limitation.~42~

       Defense counsel objected to the court’s instruction. After hearing

argument, the court indicated it would give its version of the instruction.43 As a

result, defense counsel decided to withdraw his request for a limiting instruction.44

Ultimately, the court did not give Montgomery or the court’s proposed limiting

instruction. But the court instructed the jury: ‘A separate crime is charged in each




       41   Clerk’s Papers (CP) at 54.
       42   CP at 139.
       ~ RP (Feb. 6,2018) at 638.
            ki. at 638-39.



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No. 78078-6-1/9


count. You must decide each count separately. Your verdict on one count should

not control your verdict on any other count.”45

       Montgomery argues counsel’s decision to withdraw the limiting instruction

was unreasonable. When defense counsel’s decisions “can be characterized as

legitimate trial strategy or tactics, performance is not deficient.”46 More precisely,

‘“[t]he relevant question is not whether counsel’s choices were strategic, but

whether they were reasonable.”47 Because ‘‘[s]crutiny of counsel’s trial tactics is

deferential,   .   .   .   the presumption of adequate representation is not overcome if

there is any “conceivable legitimate tactic” that can explain counsel’s

performance.”48

       Limiting instructions restrict the purpose for which a jury considers

evidence. ER 105 provides, “When evidence which is admissible as to one party

or for one purpose but not admissible as to another party or for another purpose is

admitted, the court, upon request, shall restrict the evidence to its proper scope

and instruct the jury accordingly.”

       The State does not dispute Montgomery was entitled to a limiting

instruction. And the court’s proposed instruction complied with ER 105. The


       45CPat73.
       46 State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).

       ~ Crier, 171 Wn.2d at 34 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 481,
120 5. Ct. 1029, 145 L. Ed. 2d 985 (2000)).
       48 In re Det. of Hatfield, 191 Wn. App. 378, 401-02, 362 P.3d 997 (2015)
(quoting State v. Bander, 150 Wn. App. 690, 720, 208 P.3d 1242 (2009); State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80(2004)).



                                                   9
No. 78078-6-1110


instruction informed the jury that the evidence of each count was cross-admissible

to determine whether the defendant engaged in a common scheme or plan or to

determine the defendant’s identity. And the instruction informed the jury that the

e~’idence was not admissible for any other purpose.” But defense counsel was

concerned that this language amounted to no limitation.

       The only substantive difference between the two proposed instructions was

Montgomery’s instruction specifically instructed the jury to not consider the cross-

admissible evidence for motive or intent, rather than the court’s instruction that

merely instructed the jury to not consider it for “any other purpose.” It is

conceivable that defense counsel decided the court’s proposed instruction

unfavorably emphasized the cross-admissibility of the evidence of each count to

show a common scheme or plan without explicitly reminding the jury they were not

to consider the evidence for motive or intent.49

       Counsel’s decision to withdraw the limiting instruction was a legitimate trial

tactic and did not constitute ineffective assistance of counsel. Because

Montgomery fails to prove that his defense counsel was deficient, we need not

address whether his counsel’s decision prejudiced his trial.




        ~ See, e.g., State v. Woods, 198 Wn. App. 453, 461, 393 P.3d 886 (2017)
(“[A] separate limiting instruction.  could serve as an unwanted reminder of
                                       .   .


damaging testimony.”).



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No. 78078-6-Ill 1


Ill. Mental Health Evaluation

       Montgomery asks us to strike the community custody condition requiring

him to complete a mental health evaluation.

       Under RCW 9.94B.080,

              The court may order an offender whose sentence includes
       community placement or community supervision to undergo a mental
       status evaluation and to participate in available outpatient mental
       health treatment, if the court finds that reasonable grounds exist to
       believe that the offender is a mentally ill person as defined in
       RCW 71 .24.025, and that this condition is likely to have influenced
       the offense.

       The State concedes the court did not make the statutorily required findings.

We accept the State’s concession. However, the State argues this case should be

remanded for the trial court to reconsider the condition under RCW 9.94B.080.

       In State v. Shelton, the trial court found “mental health issues contributed to

his offense,” but it did not find the defendant “is a mentally ill person.”5° This court

accepted the State’s concession that the court did not comply with

RCW 9.94B.080 and remanded “to determine whether to order a mental health

evaluation according to the requirements set forth in former RCW 9.94B.080.”51

       In State v. Brooks, when considering the same issue, Division Three of this

court reversed the community custody condition regarding mental health

evaluation and treatment because “there was no finding that [the defendant] was a




       50194 Wn. App. 660, 676, 378 P.3d 230 (2016).
       51   Id.




                                           11
No. 78078-6-1/12


mentally ill person whose condition influenced the offense.”52 Montgomery argues

we should strike the condition under Brooks rather than remand under Shelton.

       Because public safety and Montgomery’s own wellbeing may be served by

a mental health evaluation and treatment, we follow this court’s approach in

Shelton and remand for the trial court to consider this condition under

RCW 9.94B.080.

       Therefore, we affirm Montgomery’s convictions and remand for

consideration consistent with this opinion.




WE CONCUR:




 ~                 /                            ___________




      52142 Wn. App. 842, 851, 176 P.3d 549 (2008).




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