      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           No. 72922-5-1


             Respondent,                       DIVISION ONE


      v.
                                               UNPUBLISHED OPINION
JACOB DALTON JOHANSEN,

             Appellant.                        FILED: June 27, 2016


      Leach, J. — Jacob Johansen appeals his conviction for second degree

assault with an aggravating circumstance of domestic violence. He challenges

the trial court's admission of evidence of his prior acts of domestic violence

against the victim.   He also claims that his trial counsel provided ineffective

assistance when he proposed a jury instruction that contained an improper

comment on the evidence. Without deciding if the trial court improperly admitted

evidence of Johansen's earlier acts of domestic violence, we conclude that any

error was harmless because the outcome of the trial could not have been

materially affected by the challenged evidence.        And we conclude that

Johansen's counsel's performance was not deficient where the proposed
No. 72922-5-1 / 2




instruction at issue was a standard pattern jury instruction1 that no court had

concluded was improper until after the end of Johansen's trial. We affirm.

                                     FACTS


       Late one evening in December 2013, Johansen and his friend Kyle Wilson

returned to the home Johansen shared with Alexandra Boring and their young

son.   Johansen and Boring began to argue.        Boring testified that Johansen

choked her twice while they were in the bedroom. The second time he choked

her, she urinated on herself. When he let go, she immediately vomited near the

bed and then got back up. Johansen pushed her onto a computer desk. She

went back to the bed, and he broke a picture frame on top of her head. Then he

left the house.     Boring went out to where Johansen and Wilson were loading

Johansen's car and demanded the house key, which he gave her.

       Johansen testified that when he and Wilson arrived at the house, Boring

came to the door angry, yelled at him, and threw things while he packed his bags

and left without touching her. Wilson testified that Boring met them at the door

and started yelling at Johansen, asking him where he had been all day and if he

was cheating on her. He testified that Boring threw things when she got mad at

Johansen. He testified that during their argument, he had gone in and out of the

house several times and had heard only Boring yelling at Johansen and nothing

       1 11A Washington Practice: Washington Pattern Jury Instructions:
Criminal 300.17, at 719 (3d ed. 2008) (WPIC).
No. 72922-5-1 / 3




more. Wilson also testified that when Boring and Johansen came out of the

room, Boring was crying but appeared unharmed.

      After the incident, Boring called her mother, Rhonda Boring. Rhonda told

her that during Boring's exchange with Johansen, his phone had pocket-dialed

her father, Scott Boring. Due to the pocket dial, Rhonda had called 911 and told

Boring to call 911. Boring "thought about it for a minute and then I figured she

already did, so I might as well."

       Boring's father, Scott, testified that after the incident, he drove to Boring's

home. On the way, he spoke with Johansen on the phone, who reported that he

and Boring had had a violent fight.        When Scott arrived at the house, he

immediately went inside, where he found Boring crying.                She had red

compression marks on her neck, and he found a broken picture frame and

broken glass on the bed.

       When police arrived, Officer Jay West saw that Boring was distraught and

had redness on her neck. West also saw that she was limping, her clothes were

disheveled, and her pants were wet. In the bedroom he observed a computer

monitor knocked over, vomit residue on the carpet, and a broken frame on the

bed. While Boring told West her story, she told him that she would not make a

formal statement because she was afraid Johansen would kill her.
No. 72922-5-1/4




       Rhonda arrived and observed that Boring appeared upset, had wet pants,

and had bruises on her neck. She later took Boring to the hospital to address a

leg injury from the incident that left Boring in a knee brace.

       Detective David Shields spoke with Johansen the day after the incident.

Johansen denied having physical contact with Boring. Shields met with Boring

two days after the incident and saw a brace on her right knee, some red marks

and scrapes on her neck, scratches on her leg, and bruising near her left eye and

on the right side of her neck. She was tearful when she described the incident

with Johansen to him. Shields is a domestic violence detective. Based on his

personal experience responding to calls involving strangulation, he testified that

the effects of strangulation can include redness on the neck, bruising, and loss of

bladder control.


       The State charged Johansen with second degree assault involving

domestic violence, with the aggravating circumstance that the assault was part of

an ongoing pattern of psychological, physical, or sexual abuse of the victim over

a prolonged period of time.

       At trial, the State sought to admit testimony alleging that Johansen had

engaged in domestic violence against Boring for several years.          The State

contended that the court should admit this evidence because it showed that "this

is how Mr. Johansen acts." Johansen objected, asserting that this constituted
No. 72922-5-1 / 5




propensity evidence under ER 404(b).           The trial court concluded that the

testimony was admissible, reasoning that because Johansen would argue that

Boring fabricated an assault, the jury needed information about earlier incidents

of domestic violence.


      The trial court permitted Boring to testify that Johansen was violent during

the relationship and that his violence toward her escalated, but the court limited

testimony about specific details of the alleged violence. She testified that he

often choked her. Her parents testified that he was violent toward their daughter.

The court instructed the jury that it could consider this evidence only for the

purpose of evaluating Boring's credibility.

       The jury convicted Johansen, and the trial court imposed an exceptional

sentence. Johansen appeals.

                             STANDARD OF REVIEW

       This court reviews a trial court decision to admit or exclude evidence for

abuse of discretion.     We reverse only if the trial court made a manifestly

unreasonable decision or based its decision upon untenable grounds or

reasons.2




       2 State v. Gunderson, 181 Wn.2d 916, 921-22, 337 P.3d 1090 (2014)
(quoting State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997)).
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No. 72922-5-1 / 6




                                    ANALYSIS


       If a trial court improperly admits evidence of a defendant's earlier bad

acts, this "error is harmless if the evidence is of minor significance compared to

the overall evidence as a whole."3        But this court must reverse if, "'within

reasonable probabilities, had the error not occurred, the outcome of the trial

would have been materially affected.'"4

       Here, the trial court instructed the jury that it could consider the testimony

of Johansen's earlier domestic violence against Boring for the purpose of

establishing her credibility. Johansen asserts that Boring never gave conflicting

statements or testimony and thus no relevant purpose existed to justify admitting

the evidence. Johansen also asserts that the prejudicial effect of that evidence

greatly outweighed any probative value it offered.

       We do not decide if the trial court improperly admitted evidence of

Johansen's prior acts of domestic violence because any error in admitting the

evidence was harmless.       Johansen argues that the prejudicial effect of the

evidence of his prior acts necessarily affected the outcome of his trial because

the jury decided the case by weighing the conflicting testimony of Johansen and


       3 State v. Evervbodvtalksabout, 145 Wn.2d 456, 468-69, 39 P.3d 294
(2002).
       4 State v. Gresham, 173 Wn.2d 405, 425, 269 P.3d 207 (2012) (internal
quotation marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d
951 (1986)).
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No. 72922-5-1 / 7




Boring.     But the State presented the jury with substantial evidence besides

Boring's testimony.     It presented testimony from both of her parents, the

responding officer, and the detective that interviewed her. Each observed red

marks or scratches on Boring's neck. Officer West testified that Boring appeared

to have urinated on herself. He also saw vomit residue next to the bed, broken

glass and a picture frame in the bed, and a computer monitor turned over. All

this evidence corroborated Boring's testimony. The State played the 911 tape to

the jury and admitted photographs of Boring's neck. The defense presented

testimony from Johansen and Wilson denying the incident, but those accounts

revealed inconsistencies with Johansen's earlier statements.   The record thus

does not show with reasonable probability that any improper admission of

evidence of Johansen's earlier acts of domestic violence materially affected the

outcome of the case. Thus, any error was harmless.

          Johansen further argues that his trial counsel provided ineffective

assistance when he proposed an instruction that impermissibly commented on

the evidence. The Sixth Amendment to the United States Constitution and article

I, section 22 of the Washington Constitution guarantee the right to effective

assistance of counsel.5     To show that he received ineffective assistance of

counsel, Johansen must show that counsel's performance was deficient and that

      5 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
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No. 72922-5-1 / 8




such deficient performance prejudiced him.6 To prove deficient performance he

must show that his counsel's representation "'fell below an objective standard of

reasonableness based on consideration of all the circumstances.'"7

       Johansen asserts that his counsel's performance was deficient because

the jury instruction he proposed constituted a comment on the evidence.

Johansen and the State both proposed jury instructions to the court for the

aggravated sentence of domestic violence based on the accepted WPIC jury

instruction. Johansen's proposed instruction told the jury that for it to find that the

crime constituted an aggravated domestic violence offence, the State must prove

beyond a reasonable doubt:

              (1) That the victim and the defendant were family or
       household members; and
              (2) That the offense was part of an ongoing pattern of
       psychological, physical, or sexual abuse of the victim manifested by
       multiple incidents over a prolonged period of time. An "ongoing
       pattern of abuse" means multiple incidents of abuse over a
       prolonged period of time. The term "prolonged period of time"
       means more than a few weeks.

The trial court gave this instruction to the jury in October 2014.            In 2015,

Washington's Supreme Court ruled in State v. Brush8 that the definition of

"prolonged period of time" in the jury instruction was an improper judicial


       6 See State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995); see also
Strickland, 466 U.S. at 687.
       7 State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999) (quoting
State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)).
       8 183 Wn.2d 550, 558-59, 353 P.3d 213 (2015).
                                          -8-
No. 72922-5-1 / 9




comment on the evidence. The court held that what was a prolonged period of

time presented a factual inquiry to be decided by the jury.9 It concluded that this

prejudiced the defendant, warranting reversal ofan exceptional sentence.10
       But we conclude that State v. Studd11 forecloses Johansen's assertion

that his counsel provided deficient representation. The court in Studd reviewed

its earlier opinion in State v. LeFaber.12 There, it concluded that the generally

accepted instruction for self-defense, WPIC 16.02, was erroneous.13 In Studd,

counsel for one of the defendants had requested the same instruction at trial.

After the Supreme Court published LeFaber, that defendant appealed, asserting

ineffective assistance of counsel.14 The Studd court held that because it had not

decided LeFaber at the time of the defendant's trial, "his counsel can hardly be

faulted for requesting a jury instruction based upon a then-unquestioned WPIC

16.02."15 Because the defendant's counsel's performance could not have been

deficient, the Studd court concluded that the defendant's argument failed.16




       9 Brush, 183Wn.2dat559.
       10 Brush, 183 Wn.2d at 559-60.
     11 137Wn.2d533, 551,973P.2d 1049(1999).
     12 128 Wn.2d 896, 913 P.2d 369 (1996), abrogated by State v. O'Hara,
167 Wn.2d 91, 101-02, 217 P.3d 756 (2009).
       13 LeFaber, 128 Wn.2d at 902-03.
       14 Studd, 137Wn.2dat551.
       15 Studd, 137Wn.2dat551.
      16 Studd, 137 Wn.2d at 551; McFarland, 127 Wn.2d at 334-35 (citing State
v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)).
                                        -9-
No. 72922-5-1/10




       Because Johansen fails to cite any case that would have put his counsel

on notice of the improper nature of the challenged instruction and fails to

distinguish Studd,17 his argument fails.

                                  CONCLUSION


       Without deciding if the trial court improperly admitted evidence of

Johansen's earlier acts of domestic violence, we conclude that any alleged error

was harmless because Johansen has not shown, within reasonable probabilities,

that admission of this evidence materially affected the outcome of this case. And

because Johansen's counsel presented a generally accepted WPIC instruction

before any court had determined that that instruction constituted an improper

comment on the evidence, we conclude that his counsel's performance was not

unreasonable and thus not deficient. We affirm.




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WE CONCUR:

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       17 See State v. Kvllo, 166 Wn.2d 856, 866, 215 P.3d 177 (2009) (Where
several cases should have indicated to counsel that a pattern instruction was
flawed, counsel should have been aware of those cases.).
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