                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          January 26, 2016




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    STATE OF WASHINGTON,                                              No. 46793-3-II

                                 Respondent,

           v.

    NOLAN BROOKS GWINN, SR.,                                   UNPUBLISHED OPINION

                                 Appellant.

          JOHANSON, C.J. — A jury found Nolan Brooks Gwinn Sr. guilty of one count of felony

violation of a no-contact order (VNCO). Gwinn appeals his conviction, arguing that he received

ineffective assistance of counsel because trial counsel failed to object to evidence that Gwinn had

previously been convicted of VNCO involving the same protected party as the current offense.

We hold that Gwinn cannot establish that he received ineffective assistance of counsel because

counsel’s failure to object was a legitimate trial strategy. We affirm.

                                               FACTS

          In July 2014, Elizabeth Gwinn drove home to pick up her son. When she arrived, she saw

Gwinn, her former husband, standing in the driveway. Elizabeth1 told Gwinn that he was not




1
    We refer to Elizabeth Gwinn by her first name for clarity, intending no disrespect.
No. 46793-3-II


permitted to be there because of the court order prohibiting him from contacting her, and Gwinn

agreed to leave after Elizabeth threatened to call police.

       That evening, Elizabeth again observed Gwinn on the walkway outside her home. She

threatened to call 911. Gwinn left the residence, but shortly thereafter, Elizabeth began to receive

phone calls from Gwinn. After “dozens” of calls, which included statements from Gwinn that he

was coming back to her home, Elizabeth called police. Olympia police officers arrested Gwinn

the next day. The State charged Gwinn with felony VNCO because Gwinn had previous

convictions for VNCO.

       At trial, the investigating police officer explained that at the time of the alleged crime, there

was a valid Olympia Municipal Court order prohibiting Gwinn from contacting Elizabeth. The

order also barred Gwinn from coming within 1,000 feet of Elizabeth’s residence. Because the

State was required to prove that Gwinn had twice previously been convicted for VNCO for

purposes of the current felony charge, it introduced a 2010 judgment and sentence showing two

such convictions. This judgment and sentence listed Elizabeth as the party with whom contact

was prohibited.

       During Elizabeth’s cross-examination, Gwinn’s trial counsel elicited testimony that Gwinn

had contacted Elizabeth at least once prior when he was not permitted to do so and that he had

been charged on that occasion.       And in closing argument, Gwinn’s defense counsel cited

Elizabeth’s desire to be “done with” Gwinn and implied that Elizabeth made the police report as a

way to accomplish that goal. 1 Report of Proceedings (RP) at 168. The jury found Gwinn guilty

as charged. Gwinn appeals.




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No. 46793-3-II


                                             ANALYSIS

       Gwinn argues that he received ineffective assistance of counsel because defense counsel

failed to object when the State presented evidence that Gwinn had two previous convictions for

VNCO and that Elizabeth was the protected party in each of the earlier incidents. We hold that

counsel’s performance was not deficient because he used the fact that Elizabeth was a party to the

other convictions as a legitimate trial strategy.

       To prevail on an ineffective assistance of counsel claim, a defendant must show both

deficient performance and resulting prejudice. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280

(2002). We review an ineffective assistance claim de novo, beginning with a strong presumption

that trial counsel’s performance was adequate and reasonable and giving exceptional deference

when evaluating counsel’s strategic decisions. Strickland v. Washington, 466 U.S. 668, 689, 104

S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011)

(citing State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009)). To establish deficient

performance, a defendant must show that counsel’s performance fell below an objective standard

of reasonableness. McNeal, 145 Wn.2d at 362. To establish prejudice, a defendant must show

that but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694. We do not have to address both prongs of the test if the defendant

makes an insufficient showing on either prong. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d

563 (1996).

       Given the deference we afford defense counsel’s decisions in representation, the threshold

for deficient performance is high. Grier, 171 Wn.2d at 33. There is a strong presumption counsel

has rendered adequate assistance and has made all significant decisions by exercising reasonable


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No. 46793-3-II


professional judgment. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991). Thus, “[w]hen

counsel’s conduct can be characterized as legitimate trial strategy or tactics, performance is not

deficient.” Kyllo, 166 Wn.2d at 863. Conversely, a criminal defendant can rebut the presumption

of reasonable performance by demonstrating that “there is no conceivable legitimate tactic

explaining counsel’s performance.” State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80

(2004).

          Gwinn argues that his trial counsel should have objected to the State’s use of the prior

judgment and sentence because it listed Elizabeth as the protected party to a no-contact order. In

Gwinn’s view, although his prior convictions for VNCO were unquestionably relevant because

they were an element of the charged crime, it was unnecessary and irrelevant to include a reference

to Elizabeth’s name because the law does not require that the two previous convictions involve the

same victim.2 According to Gwinn, counsel’s failure to request a redaction—or to stipulate to the




2
    Former RCW 26.50.110 (2013), which governs violations of VNCOs, provides in pertinent part,
         (1)(a) Whenever an order is granted under this chapter, chapter 7.92, 7.90, 9A.46,
         9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign
         protection order as defined in RCW 26.52.020, and the respondent or person to be
         restrained knows of the order, a violation of any of the following provisions of the
         order is a gross misdemeanor, except as provided in subsections (4) and (5) of this
         section:
                 ....
                 (5) A violation of a court order issued under this chapter, chapter 7.92, 7.90,
         9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or of a valid foreign
         protection order as defined in RCW 26.52.020, is a class C felony if the offender
         has at least two previous convictions for violating the provisions of an order issued
         under this chapter, chapter 7.90, 9A.46, 9.94A, 10.99, 26.09, 26.10, 26.26, or 74.34
         RCW, or a valid foreign protection order as defined in RCW 26.52.020. The
         previous convictions may involve the same victim or other victims specifically
         protected by the orders the offender violated.

                                                 4
No. 46793-3-II


existence of the prior convictions—was prejudicial because it was essentially propensity

evidence.3

       Here, the record shows a valid strategic reason for counsel’s failure to object. During

Elizabeth’s cross-examination, the following exchange occurred:

       [GWINN]: But you wanted to be free of [Gwinn].
       [ELIZABETH]: Yes.
       [GWINN]: [Elizabeth], at least on one prior occasion, you know that [Gwinn] had
             contact with you when he wasn’t supposed to --
       [ELIZABETH]: Um – hmm.
       [GWINN]: -- and he was charged, and he got in trouble for that.
       ....
       [GWINN]: At least on one other occasion.
       [ELIZABETH]: Yes.
       [GWINN]: So you know that if the police are called and there’s a no contact order,
             that that’s a way you can be free of him.

1 RP at 136.

       The evidence against Gwinn was strong and the quoted passage demonstrates that Gwinn’s

trial counsel’s defense strategy was to challenge Elizabeth’s credibility and to attempt to establish

that she had an ulterior motive when she called police during the incident. In closing argument,

counsel again suggested that Elizabeth filed a report because there was “no better way to make a

break [from Gwinn].” 1 RP at 168. Defense counsel attempted to convince the jury that

Elizabeth’s report was motivated by her disdain for Gwinn rather than by his violation of the order.

       For counsel’s defense theory to be viable, it required that the jury have knowledge of

Gwinn’s previous VNCO convictions where Elizabeth was the protected party. For this reason, it

was immaterial to Gwinn’s counsel that the judgment and sentence suggested that Elizabeth had




3
  Gwinn likens the State’s use of the judgment and sentence document to improper ER 404(b)
evidence.
                                              5
No. 46793-3-II


been the subject of other court orders that Gwinn violated. That evidence in fact corroborated the

defense theory. This was clearly a strategic decision and we presume that counsel has made all

significant decisions by exercising reasonable professional judgment. Lord, 117 Wn.2d at 883.

Because counsel’s conduct can be categorized as a legitimate trial strategy, we hold that counsel’s

performance was not deficient and, therefore, Gwinn’s ineffective assistance of counsel argument

fails.

         We affirm.

         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.



                                                    JOHANSON, C.J.
 We concur:



 WORSWICK, J.




 LEE, J.




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