                                                                              f^O
                                                                                      CO{~]
                                                                              -—~7    --.__' '—

                                                                              CD      ~ • r!

                                                                             Cj             ~




                                                                                     -j:;: -
                                                                                     - - - - - -..

                                                                             ^-j




 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                        No. 72468-1-1
                     Respondent,
                                                        DIVISION ONE
              v.

                                                        UNPUBLISHED OPINION
 CHRISTOPHER MICHAEL ERVIN,

                     Appellant.                         FILED: December 21, 2015


      Appelwick, J. — Ervin appeals his conviction for assault in the third degree

and malicious mischief in the first degree. He contends that the trial court erred

when it denied his request for a voluntary intoxication instruction, because there

was substantial evidence of intoxication in the record to warrant the instruction.

He asserts that if there was insufficient evidence of intoxication in the record to

warrant the instruction, he received ineffective assistance of counsel. We affirm.

                                      FACTS


       On April 9, 2014, Fariborz Tavakkolian was driving home on Vashon Island.

He called 911 after he observed Christopher Ervin in the middle of the road,

weaving in and out of traffic with a beer can in his hand. Tavakkolian observed

that Ervin was acting erratically and "might have had too much to drink." Ervin was
No. 72468-1-1/2




yelling at cars and yelling in different directions. Tavakkolian could not hear what

Ervin was saying.

          Deputy Jeff Hancock received a 911 dispatch call around 9:15 that night

indicating that someone was jumping in and out of traffic. Deputy Hancock arrived

at the scene and observed Ervin and another man, Andy Fuller, on the side of the

street.     Ervin was "flailing about" and his arms were up.     Ervin was yelling

profanities at passing vehicles. At one point, Ervin picked up a beer can, went into

the middle of the road, and put the can over his head as though he was going to

throw it. Seconds later, when Ervin was out of view, Deputy Hancock heard the

can hit the ground. Ervin then continued to walk down the middle of the road with

his hands up in the air yelling "F you, F you." Deputy Hancock then observed Ervin

hide in the alcove of a store. As a vehicle approached, Ervin darted out into the

crosswalk at the last second causing the car to slam on its brakes, slow, and

swerve. Ervin yelled profanities at the car as it slowly passed him.

          At that point, Deputy Hancock radioed his partner, Deputy Joel Anderson,

to let him know that he had probable cause to arrest Ervin for disorderly conduct.

Deputy Anderson informed Deputy Hancock that he had just seen Ervin walking

toward the back entrance of a bar. Deputy Hancock and Deputy Anderson met up

and approached the back entrance of the bar. The deputies saw Ervin near the

back entrance of the bar and called out to him.     Ervin did not stop but instead

entered the bar. Deputy Hancock remained by the back entrance while Deputy

Anderson drove around to the front entrance. Shortly thereafter, Deputy Anderson

observed Ervin exit from the front entrance. Deputy Anderson ordered Ervin to
No. 72468-1-1/3




show his hands and put them on the hood of his car. Ervin was agitated and did

not comply with those instructions, but sat on the pavement in front of Deputy

Anderson's car.


       Deputy Hancock arrived and handcuffed Ervin. The deputies placed Ervin

in the back of Deputy Anderson's patrol car. Deputy Anderson drove Ervin back

toward Deputy Hancock's patrol car. As the officers convened in front of their cars,

they heard a loud noise and saw Ervin kick out the back patrol car window after

three or four tries.


       The deputies had Ervin step out of the car. Ervin was very upset, loud, and

angry. He was yelling and screaming nonstop at the top of his lungs. He was

yelling, "Fuck you" over and over again.       He was speaking some gibberish

throughout. Ervin directed several comments toward Deputy Hancock specifically.

Ervin told Deputy Hancock that he was going to pay for his crimes. Ervin also said

that he had the right to spit in Deputy Hancock's face, that his kids and grandkids

would wake up in hell, and that he was a corrupt and crooked cop.

       After Ervin announced that he had the right to spit in Deputy Hancock's face

and began to clear his lungs as if to do so, the deputies tried to put a spit mask

over his head. As they did, Ervin broke free from the deputies' holds and lowered

his shoulder and head straight into Deputy Hancock. Deputy Anderson held onto

Ervin's right arm to keep him from pushing into Deputy Hancock, but Ervin's force

was so strong that he drove all three of them into a fence.

       At that point, the deputies made Ervin lie prone on the hood of the patrol

car. Ervin wrapped his leg around Hancock's leg and "clamped down . . . like a
No. 72468-1-1/4




python." Deputy Hancock was in pain and was totally immobile as a result. Deputy

Hancock finally freed himself by lowering his weight and sitting down.         Ervin

continued to yell profanities and was saying things about religion and corrupt police

officers.


       The deputies sat Ervin on the curb.     Ervin said that he would not resist

anymore. But, he continued yelling and began to stand up again. As Deputy

Hancock attempted to control him, Ervin kicked him in the knee. Deputy Hancock

stumbled and buckled from the pain. The deputies wrestled Ervin to the ground

and held him until Deputy Melvin Dickson arrived.

       Ervin was still screaming and yelling when Deputy Dickson arrived. Deputy

Dickson could not tell what Ervin was yelling. Deputy Dickson took Ervin to his

patrol car and placed him inside. Ervin's demeanor changed when he was with

Deputy Dickson. He was calm, relaxed, and compliant with Deputy Dickson's

requests.

       The State charged Ervin with assault in the third degree pursuant to RCW

9A.36.031(1)(g) and malicious mischief in the first degree pursuant to RCW

9A.48.070(1 )(b). Before Ervin's trial, the court held a CrR 3.5 hearing to consider

the admissibility of Ervin's statements that he made during the arrest.        Ervin

testified at the CrR 3.5 hearing. He testified that he had whiskey and two to three

beers on the night of the incident.        He further testified that he smoked

methamphetamine and marijuana that day.          The trial court admitted Ervin's

statements.
No. 72468-1-1/5




        At trial, Tavakkolian, Deputy Hancock, Deputy Anderson, Deputy Dickson,

and a bystander at the bar, Adalaar Deruyter, testified about the incident. After the

State rested at trial, defense counsel requested a voluntary intoxication instruction

based on Washington Pattern Jury Instruction: Criminal 18.10, at 282 (3d Ed.

2008) (WPIC). The defense's proposed instruction stated,

        No act committed by a person while in a state of voluntary
        intoxication is less criminal by reason of that condition. However,
        evidence of intoxication may be considered in determining whether
        the defendant acted intentionally.

Ervin argued that there was a sufficient factual basis for the instruction based on

Tavakkolian's 911 call during which he indicated that Ervin might be drunk, Ervin's

generally erratic behavior, and Ervin's yelling.     The trial court denied Ervin's

request for the jury instruction. It reasoned that there was no evidence that Ervin

was intoxicated such as testimony that Ervin smelled of alcohol, had bloodshot

eyes, or any other physical symptoms. The trial court concluded that the jury would

be required to speculate, because Tavakkolian was not close enough to Ervin to

be sure he was intoxicated. And, it concluded that Ervin's bizarre behavior was

insufficient.


       After the court denied the instruction, the defense rested without calling any

witnesses. Ervin did not testify. During closing argument, defense counsel asked

the jury to consider whether the State met its burden of proof as to whether Ervin

acted intentionally. Defense counsel stated that Ervin was in "an altered state."

And, she urged the jury to consider the circumstances under which Ervin acted.
No. 72468-1-1/6




        The jury found Ervin guilty of both assault in the third degree and malicious

mischief in the first degree. Ervin appeals.

                                      DISCUSSION


        Ervin argues that the trial court erred in refusing to give him the requested

voluntary intoxication instruction.     He contends that the trial record contained

substantial evidence of his intoxication and the intoxication's impact on his state of

mind.    Alternatively, Ervin asserts if the court concludes there is insufficient

evidence in the record to support the voluntary intoxication instruction, his counsel

was deficient in failing to elicit enough evidence at trial. Consequently, he claims

that he received ineffective assistance of counsel.

  I.    Voluntary Intoxication Instruction

        Ervin first argues that the trial court erred in refusing to provide the voluntary

intoxication jury instruction. He claims that without the instruction, he was unable

to effectively argue his intoxication defense, which rendered the verdict unreliable.

        By statute, Washington recognizes an intoxication defense.                  RCW

9A. 16.090. The statute provides that whenever a crime has a "particular mental

state," voluntary intoxication "may be taken into consideration in determining such

mental state." ]d.

        A criminal defendant has a right to have the jury instructed on a defense

that is supported by substantial evidence. State v. Walters, 162 Wn. App. 74, 82,

255 P.3d 835 (2011). In evaluating whether the evidence is substantial enough to

support a defendant's proposed instruction, the trial court must interpret it most

strongly in the defendant's favor. State v. Douglas, 128 Wn. App. 555, 561-62,


                                                6
No. 72468-1-1/7




116 P.3d 1012 (2005). A trial court's refusal to give a jury instruction based on a

factual dispute will be reviewed for abuse of discretion. State v. Walker. 136 Wn.2d

767, 771-72, 966 P.2d 883 (1998).

      A criminal defendant is entitled to a voluntary intoxication jury instruction

only if: (1) the crime charged has as an element a particular mental state, (2) there

is substantial evidence of drinking and/or drug use, and (3) the defendant presents

evidence that the drinking or drug use affected the defendant's ability to acquire

the required mental state. State v. Evervbodvtalksabout, 145 Wn.2d 456, 479, 39

P.3d 294 (2002); State v. Webb. 162 Wn. App. 195, 209, 252 P.3d 424 (2011).

Substantial evidence is evidence sufficient to persuade a fair minded person of the

truth of the declared premise. State v. Vasquez. 95 Wn. App. 12, 17, 972 P.2d

109(1998).

       The first factor necessary to warrant a voluntary intoxication defense is that

a   particular mental state must be an element of the crime charged.

Evervbodvtalksabout. 145 Wn.2d at 479. Here, Ervin argues that factor is satisfied

as to both the assault in the third degree and the malicious mischief in the first

degree charges. The State concedes that the mental state factor is satisfied as to

the assault charge under RCW 9A.36.031(1)(g), but not as to the malicious

mischief charge under RCW 9A.48.070(1)(b). The State does not contend that

first degree malicious mischief does not have a mental state as one of its elements.

Rather, the State claims that Ervin failed to preserve any error regarding the

malicious mischief charge for appeal, because Ervin requested the jury instruction
No. 72468-1-1/8




below regarding "only the mental state of intent." The State argues that "intent"

applies to only the assault charge, not the malicious mischief charge.

       First degree malicious mischief requires "knowingly and maliciously"

damaging an emergency vehicle.          RCW 9A.48.070(1 )(b) (emphasis added).

Therefore, both knowledge and malice are elements of the crime charged.

"Malice" or "maliciously" means an evil intent, wish, or design to vex, annoy, or

injure another person. 11 WPIC 2.13, at 59. And, all degrees of the crime of

malicious mischief require intent. See State v. Jury. 19 Wn. App. 256, 267, 576

P.2d 1302 (1978). Thus, a voluntary intoxication instruction regarding the mental

state of intent applies to a malicious mischief charge. Ervin successfully preserved

any error for appeal. And, because the malicious mischief charge clearly requires

a particular mental state, we conclude the first factor necessary to warrant the

instruction is satisfied.


       The second factor is that there must be substantial evidence of intoxication.

Evervbodvtalksabout, 145 Wn.2d at 479.        It is not error to refuse to submit the

defense of intoxication to the jury where it is supported merely by scintilla evidence

as distinguished from substantial evidence. State v. Mrigiot. 88 Wn.2d 573, 578,

564 P.2d 784 (1977). There is no need for an expert to testify regarding the effects

of intoxication. State v. Kruger, 116 Wn. App. 685, 692-93, 67 P.3d 1147 (2003).

But, evidence of intoxication based merely on opinion, unsupported by facts on

which to base it, is speculative and conjecture. Mrigiot. 88 Wn.2d at 578. Evidence

based upon speculation and conjecture does not amount to substantial evidence.

See Mrigiot. 88 Wn.2d at 578.



                                              8
No. 72468-1-1/9




       Ervin argues that the second factor is also satisfied. He claims that it was

obvious to onlookers and obvious to the jury that Ervin was intoxicated. Ervin cites

to several pieces of evidence to support his argument that the second factor is

satisfied.


       First, he cites to Tavakkolian's testimony that he saw Ervin with a beer can

in his hand, that he "guessed" Ervin might have had too much to drink, and that

Ervin was "drunk walking" in traffic. Ervin next cites to the fact that Tavakkolian

believed Ervin to be intoxicated based on his erratic behavior.           And, that a

reasonable inference from that evidence is that Ervin had consumed the beer in

the can he was holding.

       But, while testifying, Tavakkolian stated only that he saw Ervin with a can in

his hand—not a beer can.1 And, Tavakkolian actually testified that he thought

Ervin's behavior was either erratic or that Ervin was drunk—not that Tavakkolian

had deduced Ervin was drunk from his erratic behavior. Tavakkolian did not testify

that he saw Ervin drink from the can Ervin was holding. Any evidence that Ervin

drank from the can he was holding would be based upon speculation. Evidence

based upon speculation and conjecture does not amount to substantial evidence.

See Mrigiot. 88 Wn.2d at 578.




       1 Tavakkolian did refer to the can as a beer can during his 911 call, but the
911 call was not played for the jury during trial. Portions of exhibit 4 were played
at trial. Exhibit 4 included a recording of the officers' radio transmissions when
they arrived at the scene of the incident. It was only these portions of exhibit 4 that
were played for the jury. In fact, the 911 call portion of exhibit 4 was not admitted
into evidence. But, both counsel for the State and counsel for Ervin referred to the
can as a beer can in their opening statements for the jury.
No. 72468-1-1/10




        Second, Ervin cites to his behavior as evidence of his intoxication.

Specifically Ervin cites to Deputy Hancock's testimony about him hiding in

doorways and darting out to make cars swerve as evidence of bizarre behavior

indicative of intoxication. Ervin cites to Deputy Hancock's and Deputy Anderson's

testimony about his erratic and belligerent behavior once they attempted to arrest

him—screaming, threatening Deputy Hancock, and making bizarre statements.

And, he cites to the recording from Deputy Anderson's police radio in which Ervin

is heard screaming in the background.2

        But, Ervin does not cite to any case law in Washington indicating that a

defendant merely exhibiting behaviors presumably consistent with intoxication is

sufficient evidence to satisfy the second factor. While Washington courts have

considered the opinions and observations of others and the defendant's behavior

in concluding there is substantial evidence warranting the instruction under the

second factor, the courts have not found that evidence sufficient by itself; courts

have required more. See, e.g.. State v. Jones. 95 Wn.2d 616, 622-23, 628 P.2d

472 (1981); State v. Hackett. 64 Wn. App. 780, 781-83, 785 n.2, 827 P.2d 1013

(1992); State v. Gabrvschak. 83 Wn. App. 249, 253, 921 P.2d 549 (1996); Walters.

162 Wn. App. at 78, 82-83.

        Specifically, courts have found the instruction warranted, and thus the

second factor satisfied, in cases when either an eyewitness or the defendant

testifies to the defendant's consumption of the substance itself, when there is



        2 Ervin is yelling in the background of the recording, but it is very difficult to
hear.



                                               10
No. 72468-1-1/11




physical evidence of intoxicants in the defendant's body, or when the defendant

smelled of alcohol. See, e.g.. Jones. 95 Wn.2d at 622-23 (defendant testified that

he had 9 or 11 beers, a witness believed that defendant had possibly been

drinking, another witness noted the defendant's bloodshot and glassy eyes and

slurred speech); Hackett. 64 Wn. App. at 781-83 (doctor testified that defendant

confessed he had ingested considerable amounts of cocaine and taken Valium,

doctors testified that defendant's seizure was likely the result of cocaine ingestion,

and a toxicology report showed cocaine and valium metabolites in the defendant's

blood); Gabrvschak. 83 Wn. App. at 253-54 (finding ample evidence that the

defendant was intoxicated based on the fact that the defendant had alcohol on his

breath, that he appeared intoxicated, and that he was considered too drunk to

drive); Walters. 162 Wn. App. at 78, 82-83 (testimony that defendant consumed at

least seven beers and two shots of alcohol and three witnesses described

defendant as intoxicated).

       Here, while Ervin testified during the CrR 3.5 hearing that he had consumed

beer, whiskey, meth, and marijuana that day, the only person who testified about

Ervin's intoxication during trial was Tavakkolian. And, Tavakkolian's "guess" that

Ervin was intoxicated was based on only the fact that Ervin was holding a can and

behaving strangely. No witness testified to seeing Ervin consume any beer or

drugs. Ervin was not asked to provide a blood sample. Tavakkolian was not close

enough to Ervin to smell his breath or observe any physical symptoms. And, those

witnesses who were close enough to do so—the deputies who were engaged in a

physical struggle with Ervin—did not indicate that Ervin smelled of alcohol or any


                                             11
No. 72468-1-1/12




other illicit substance. Therefore, this evidence is speculative. It is not substantial

evidence of drinking and/or drug use. We conclude that the second factor is not

satisfied.3 See Mrigiot. 88 Wn.2d at 578.

          Even assuming there was substantial evidence of drinking or drug use,

there is insufficient evidence in the record that the drinking or drug use affected

Ervin's     ability to   acquire   the   required   mental   state—the third factor.

Evervbodvtalksabout. 145 Wn. 2d. at 479. To satisfy this factor, there must be

substantial evidence of the effects of the alcohol/drugs on the defendant's mind or

body. Gabrvschak. 83 Wn. App. at 253. The evidence must reasonably and

logically connect a defendant's intoxication with his inability to form the requisite

mental state. State v. Finlev. 97 Wn. App. 129,135, 982 P.2d 681 (1999). In other

words, here, the crucial question is whether the intoxication affected Ervin's ability

to act intentionally. Walters. 162 Wn. App. at 83.

          Ervin relies on Walters. He does so, because the Walters court concluded

that physical manifestations of intoxication provide sufficient evidence from which

to infer that a defendant's mental processing was also affected. 162 Wn. App. at

83. This proposition is necessary for Ervin's argument, because he relies solely

on physical manifestations of his alleged intoxication—namely his strange and

       3 Ervin argues that the trial court erred when it considered only Ervin's
intoxication from alcohol and not intoxication from other drugs. Specifically, Ervin
cites to the fact that a juror approached defense counsel after trial and asked
counsel if she could reach out to Ervin, because her brother died from a meth
overdose. The juror wanted to write a letter to Ervin, because she recognized that
meth usage was an issue for him too. Ervin now argues that this is evidence that
his meth usage was clear to the jury. But, this letter is not in the record. Moreover,
even if it were, whether one juror can detect a defendant's struggles with
substance abuse is not the standard for whether the instruction is warranted.


                                               12
No. 72468-1-1/13




belligerent behavior—to argue that the third factor is satisfied. In Walters, the court

concluded that the third factor was satisfied based on the following physical

evidence: a sergeant described the defendant as having slurred speech, droopy

and bloodshot eyes, and that he was swaying back and forth; the defendant did

not respond to pain compliance techniques and the sergeant had to use a stun

gun on him twice before he could restrain him. Id. at 83.

       The trial court also concluded the third factor was satisfied in Kruger. 116

Wn. App. at 692.      In Kruger. there was evidence of the defendant's level of

intoxication on both his mind and body: his "blackout," vomiting at the station,

slurred speech, and imperviousness to pepper spray. ]d_.

       By contrast, the court in Gabrvschak. concluded that there was no evidence

in the record from which a rational trier of fact could reasonably and logically infer

that the defendant was too intoxicated to be able to form the required level of

culpability to commit the crimes with which he was charged. 83 Wn. App. at 254-

55.   Like the case here, in Gabrvschak. the defendant was hostile and yelling

threats and profanities, jd. at 251-52. But, the Gabrvschak court noted that the

defendant responded to the officers' requests, indicating that he fully understood

the nature of the requests; the defendant tried to break and run while being

escorted to the police car, indicating that he was well aware that he was under

arrest; and the defendant leaned up against the back of an officer's seat and spoke

with conviction while threatening to kill her. jd. The court reasoned that there was

no testimony reflecting the fact that the defendant's speech was slurred, that he

stumbled or appeared confused, that he was disoriented as to time and place, that


                                             13
No. 72468-1-1/14




he was unable to feel the pain of pepper spray, or that he otherwise exhibited

sufficient effects of the alcohol from which a rational juror could conclude that his

intoxication affected his ability to think and act with the requisite mental states. Id.

at 255.   In rejecting the instruction, the court stated that, at best, the evidence

showed that the defendant can become angry, physically violent, and threatening

when he is intoxicated, jd. at 254.

       Here, the evidence of Ervin's strange and belligerent behavior does not rise

to the level of physical manifestations of intoxication present in Walters or Kruger.

There is no evidence in the record that Ervin's eyes were bloodshot, that he was

vomiting, that he could not walk straight, or that he blacked out.4 Ervin relies on

the fact that there was testimony he was "staggering" in traffic. But, that is a

mischaracterization of the evidence.      Tavakkolian described Ervin as weaving

through traffic—a word that connotes intent.




       4 Notwithstanding the lack of these physical manifestations of intoxication,
Ervin cites to the fact that he did not indicate that he felt pain despite being
handcuffed and wrestled to the ground as evidence that the intoxication affected
him. As a preliminary matter, absence of a statement that Ervin was in pain is not
as probative as an affirmative statement that he did not feel the pain. Further,
Ervin argues this evidence is like the physical evidence in Walters that the
defendant did not respond to pain compliance or succumb after a stun gun was
used on him the first time. 162 Wn. App. at 83. But, the amount of pain from a
stun gun is not akin to the pain of being handcuffed and the pain of struggling with
two police deputies. Nor is it akin to the amount of pain deemed to be a sufficient
signal of the effects of intoxication in other cases. See Kruger. 116 Wn. App. at
692 (pain of being sprayed with pepper spray); State v. Rice. 102 Wn.2d 120,122-
23, 683 P.2d 199 (1984) (pain of being hit by a car).


                                              14
No. 72468-1-1/15



       In fact, the evidence in the record indicates that Ervin was acting in a

calculated and deliberate manner. Deputy Hancock testified that Ervin was hiding

and timing his jumps into traffic to surprise oncoming cars. Ervin appeared to avoid

the deputies by not stopping when the deputies called out to him initially at the

bar—indicating an understanding that he had done something wrong. Once the

officers tried to restrain him, Ervin was physically agile enough to immobilize

Deputy Hancock in a leg hold and to kick out a window. At one point, Ervin

indicated that he was done fighting the officers, took a slight break, and then

resumed his struggle. This indicates that Ervin made deliberate choices to keep

resisting and that he had the ability to control himself.

       Although Deputy Anderson testified that Ervin spoke some gibberish

throughout Ervin's tirade, most witnesses understood what Ervin was saying and

quoted Ervin's statements rather than classifying them as unintelligible. Most of

Ervin's angry statements had to do with displeasure with the police—a relevant

topic for someone angry and currently under arrest. Ervin made specific threats

to Deputy Hancock's family and made comments referencing corrupt officers and

false claims of being beaten. And, Ervin announced that he intended to spit on

Deputy Hancock's face before he began clearing his throat to do so. This evidence

all suggests that Ervin was acting intentionally.

       On the whole, the evidence available here is more like the evidence in

Gabrvschak upon which the court concluded the third factor was not satisfied.

Although Ervin was hostile and yelling, like in Gabrvschak. there is no evidence




                                             15
No. 72468-1-1/16




that Ervin's speech was slurred,5 that he stumbled or appeared confused, that he

was disoriented as to time or place, or that he otherwise exhibited sufficient effects

of the alcohol for a rational juror to conclude that his intoxication affected his ability

to think and act with the requisite mental states for assault and malicious mischief.

That his hostile behavior might have been consistent with intoxication is insufficient

as evidence of his inability to form intent.

       Because Ervin was unable to satisfy the three factors necessary to obtain

the voluntary intoxication jury instruction, we conclude that the trial court did not

abuse its discretion when it denied the instruction.

 II.   Ineffective Assistance of Counsel

       Alternatively, Ervin argues that, if we conclude that there is insufficient

evidence of his intoxication to warrant the jury instruction, his counsel was

ineffective in failing to elicit enough evidence or call witnesses to establish his

intoxication. At trial, Ervin elected not to testify.     And, none of the witnesses

testified to whether Ervin actually ingested drugs or alcohol or testified regarding

the physical manifestations of Ervin's intoxication—evidence needed to warrant

the instruction.


       Ervin argues that his attorney made two main errors at trial in developing

evidence of his intoxication: failing to cross-examine Deputy Hancock or call him

as a defense witness and failing to call Fuller or another of Ervin's friends to testify.




       5 Ervin claims that there is evidence that his speech was slurred, but that
evidence is not in the record.


                                               16
No. 72468-1-1/17




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

show (1) counsel's performance was deficient and (2) the deficient performance

prejudiced the trial. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). The first prong of the Strickland test requires a showing

that counsel's representation fell 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). The second prong requires the defendant to

show there is a reasonable probability that, but for counsel's errors, the results of

the proceeding would have been different, jd. There is a strong presumption of

effective assistance. In re Pet, of Moore. 167 Wn.2d 113, 122, 216 P.3d 1015

(2009). If defense counsel's trial conduct can be characterized as legitimate trial

strategy or tactics, then it cannot serve as a basis for a claim that the defendant

did not receive effective assistance of counsel. State v. Lord. 117 Wn.2d 829, 883,

822P.2d 177(1991).

      A. Testimony of Deputy Hancock

       First, Ervin argues that his attorney was deficient by failing to adequately

cross-examine Deputy Hancock or call him as a defense witness. At the CrR 3.5

hearing, Deputy Hancock testified that Ervin and Fuller, "both appeared to be really

intoxicated." Despite having Deputy Hancock's testimony that he thought Ervin

was intoxicated, Ervin's counsel did not cross-examine him about it at trial or call

him as a defense witness.




                                            17
No. 72468-1-1/18




       The extent of cross-examination is a matter of judgment and strategy. In re

Pers. Restraint of Davis. 152 Wn.2d 647, 720, 101 P.3d 1 (2004). Thus, electing

not to cross-examine Deputy Hancock about Ervin's intoxication can be

characterized as a legitimate trial tactic. And, the decision about whether to call a

particular witness is a matter of legitimate trial strategy. ]d_. at 742.

        Even assuming defense counsel was deficient in not cross-examining

Deputy Hancock about Ervin's intoxication, Ervin cannot establish with reasonable

probability that, but for these errors, the outcome of his trial would have been

different.


        Deputy Hancock made one statement about Ervin's intoxication in the CrR

3.5 hearing in response to a question about what Ervin and Fuller were doing when

he first arrived on the scene and when he was first observing them.           Deputy

Hancock's perception that Ervin was intoxicated was based on his witnessing

Ervin's behavior from afar. Nothing from Deputy Hancock's written report or his

CrR 3.5 testimony indicated that Deputy Hancock observed Ervin with bloodshot

eyes, smelling of alcohol, slurring his words, or other specific physical

manifestations of intoxication needed to warrant the instruction. And, nothing in

Deputy Hancock's CrR 3.5 testimony or written report indicated that he witnessed

Ervin ingest any drugs or alcohol. Speculation that Deputy Hancock might have

offered additional testimony relevant to the defense is insufficient to show that his

testimony would have been sufficient to change the outcome of the proceeding.

See Jury. 19 Wn. App. at 265 (declining to rule that actual prejudice was shown

because defense counsel neglected to interview and subpoena witnesses who


                                               18
No. 72468-1-1/19



might have helped the defense, because it was only speculative that the witnesses

would have been helpful).

       We conclude that counsel was not ineffective when she did not cross-

examine Deputy Hancock or re-call Deputy Hancock to testify about his opinions

of Ervin's intoxication without knowing that his testimony would support Ervin's

claim of intoxication.


       B. Failure to Call Fuller


       Next, Ervin argues that his attorney's performance was deficient by failing

to call Fuller or another of Ervin's friends to testify. At the CrR 3.5 hearing, Ervin

testified that he had been drinking on the night of the incident. Specifically, he

testified that he had consumed three beers and some whiskey. And, he testified

that he had smoked both meth and marijuana earlier that day. Ervin argues that

his attorney should have called either Fuller or another of Ervin's friends to testify

to Ervin's extensive alcohol and drug use that day.

       The decision about whether to call a particular witness is a matter of

legitimate trial strategy. Davis, 152 Wn.2d at 742. Generally, the decision to call

a witness will not support a claim of ineffective assistance of counsel. Thomas.

109Wn.2dat230.


       Here, defense counsel considered whether to call Fuller as a witness. But,

counsel ultimately did not do so. It is unclear from the record why counsel declined

to call Fuller as a witness. But, Deputy Hancock testified at the CrR 3.5 hearing

that Fuller was with Ervin on the night of the incident in the street and Fuller

appeared "really intoxicated." As such, defense counsel might have had doubts


                                             19
No. 72468-1-1/20




about Fuller's memory and credibility and how he—an associate of Ervin—would

appear to a jury. Thus, it was reasonable for Ervin's counsel not to call him.

        Even assuming counsel's failure to call Fuller at trial was deficient, there is

no evidence that Fuller's testimony—had he agreed to testify to matters that might

have self-incriminated him—would have established Ervin's intoxication and

changed the outcome of the trial. Fuller did not testify at the CrR 3.5 hearing.

There is no evidence in the record indicating that Fuller was actually with Ervin

when he drank or took the drugs. At the CrR 3.5 hearing, Ervin testified to doing

graffiti with Fuller in the woods. And, Deputy Hancock testified that he saw Fuller

and Ervin together in the middle of the street appearing really intoxicated. While

Ervin testified that he had been drinking in the woods and while he testified that

"we had kind of a party" that day, he never specifically testified that Fuller was with

him. Therefore, it is purely speculative that Fuller's testimony would have been

helpful in establishing Ervin's intoxication. It is similarly speculative that any of

Ervin's other friends could testify as to Ervin's drug and alcohol use that day.

Speculation that Fuller or another of Ervin's friends might have offered testimony

relevant to the defense is insufficient to show that their testimony would have been

sufficient to change the outcome of the proceeding. See Jury. 19 Wn. App. at 265

(declining to rule that actual prejudice was shown because defense counsel

neglected to interview and subpoena witnesses who might have helped the

defense, because it was only speculative that the witnesses would have been

helpful).




                                              20
No. 72468-1-1/21




       Thus, we conclude that failure to call Fuller or one of Ervin's friends as a

witness did not constitute ineffective assistance of counsel.

       We affirm.




WE CONCUR:




                                                      6& X, >J •




                                            21
