       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                  No. 70813-9-1              T~:.i
                                                                                 O




                     Respondent,                      DIVISION ONE
                                                                                     IV>
             v.                                                                      o




JERRELL CORTEZ DAVIS,                                 UNPUBLISHED
                                                                                         vX

                                                                                         (J
                     Appellant.                       FILED: Januarv 20. 2015




       Cox, J. - In order to prove ineffective assistance of counsel, "the

defendant must show that (1) counsel's representation was deficient, that is, it fell

below an objective standard of reasonableness and (2) there was prejudice,

measured as a reasonable probability that the result of the proceeding would

have been different."1 Jerrell Davis argues that his counsel was deficient

because she proposed a limiting instruction that did not specifically prohibit the

jury from using evidence as propensity evidence. Because counsel's proposed

instruction properly instructed the jury, and a more detailed instruction could have

unduly emphasized the evidence, counsel was not deficient. Thus, we need not

reach the question of prejudice. We affirm.

      The State charged Davis with first degree robbery. Sean Ramalho, the

victim in this case, sold medical marijuana. He testified that he had been called

by someone purporting to be Daniel Stednick, who wanted to purchase medical



       1 State v. Humphries       Wn.2d       , 336 P.3d 1121, 1127(2014).
No. 70813-9-1/2



marijuana. Ramalho verified that Stednick had a valid medical marijuana

certificate, and he arranged to meet the caller.

       When Ramalho met the caller, he asked to see his driver's license to

verify that he was Stednick. The caller told Ramalho his license was inside his

apartment and that he would show Ramalho the license inside. Once inside the

building, two men approached Ramalho, and one pointed a gun at him. The men

then took the marijuana and cash Ramalho was carrying. Ramalho later

identified Davis as the caller who purported to be Stednick.

       During its case in chief, the State introduced evidence about a prior

robbery in which Davis allegedly was involved. Daniel Stednick testified that he

had been robbed after someone arranged to buy marijuana from him. He

testified that the robbers took his "medical marijuana certificate and identification

as a marijuana distributor" among other items.

       Before Stednick testified, the court instructed the jury that it could use the

testimony about Stednick's robbery only for "circumstantial evidence of the crime

charged, res gestae, identity or modus operandi." Before deliberations, the court

again instructed jurors to use the evidence only for the purpose for which it was

introduced.

       The State proposed a jury instruction defining "modus operandi" and "res

gestae." But the court was concerned that this more specific instruction would

unduly emphasize the evidence. Defense counsel, who had proposed a general

404(b) limiting instruction, agreed with the court's ruling. The court then gave the

more general instruction. The jury convicted Davis.
No. 70813-9-1/3



       Davis appeals.

                   INEFFECTIVE ASSISTANCE OF COUNSEL

       Davis argues that his counsel was ineffective. Specifically, he argues that

the performance of his counsel was constitutionally deficient for failing to propose

a more specific limiting instruction—an instruction that explicitly told jurors they

could not use the evidence as propensity evidence. We disagree.

       Both the federal and state constitutions provide the right to counsel.2

Because ineffective assistance of counsel is an "issue of constitutional

magnitude," it may be raised for the first time on appeal.3

       The defendant bears the burden of proving ineffective assistance of

counsel.4 "[T]he defendant must show that (1) counsel's representation was

deficient, that is, it fell below an objective standard of reasonableness and (2)

there was prejudice, measured as a reasonable probability that the result of the

proceeding would have been different."5 If the defendant fails to prove one of the

prongs, we need not inquire further.6

       To show deficient representation, the defendant must show that counsel's

representation "fell below an objective standard of reasonableness based on all


       2 U.S. Const, amend. VI; Const, art. I, § 22.

       3 State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007).

       4 Humphries. 336 P.3d at 1127.




       6 Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007).
No. 70813-9-1/4



the circumstances."7 Washington courts are "highly deferential to counsel's

performance."8 Courts presume that counsel provided effective representation

and require the defendant to prove that no "legitimate strategic or tactical

reasons" exist.9

       To establish prejudice, the defendant must prove that "there is a

reasonable probability that, but for counsel's unprofessional errors, the outcome

of the proceeding would have been different."10 "A reasonable probability is a

probability sufficient to undermine confidence in the outcome."11

       Here, Davis's counsel was not deficient by failing to request a more

specific limiting instruction.

       Before trial, the defense moved to exclude evidence about Stednick's

robbery and other prior bad acts. The trial court ruled that the evidence was

admissible under ER 404(b). Davis does not challenge this ruling.

       The trial court, at defense counsel's request, gave proper limiting

instructions. The court instructed the jury before the testimony of each witness

who referenced prior bad acts. When one officer testified, the court instructed

the jury:



       7 Nichols, 161 Wn.2dat8.

       8 In re Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P.3d 142
(2014).

       9 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).

        10 Nichols, 161 Wn.2dat8.

        11 Strickland, 466 U.S. at 694.
No. 70813-9-1/5



       Certain evidence has been admitted in this case for only a limited
       purpose. This evidence you're about to hear consists of officer
       testimony and may be considered by you only for the purpose of
       determining whether or not the Defendant was associated with a
       certain phone number and whether he owned a certain vehicle.
       You may not consider it for any other purpose. Any discussion of
       the evidence during your deliberations must be consistent with this
       limitation.1121

When another officer testified, the court instructed the jury:

       Certain evidence has been admitted in this case for only a limited
       purpose. This evidence you're about to hear consists of witness
       testimony and may be considered by you only for purposes of
       determining whether it tends to prove circumstantial evidence of the
       crime charged, res gestae, identity or modus operandi. You may
       not consider it for any other purpose. Any discussion of the
       evidence during your deliberations must be consistent with this
       limitation.1131

And when Stednick testified, the court gave a substantively identical instruction.14

       The court also instructed the jury before the start of deliberations. Its

written instruction stated:

       Certain evidence has been admitted in this case for only a limited
       purpose. This evidence consisted of certain witness testimony and
       may be considered by you only for the purpose of res gestae,
       identity, and/or modus operandi. You may not consider it for any
       other purpose. Any discussion of the evidence during your
       deliberations must be consistent with this limitation.[15]

       These instructions mirror the language of Washington Pattern Jury

Instructions (WPIC) 5.30, which provides:




       12 Report of Proceedings (May 15, 2013) at 177-78.

       13 Report of Proceedings (May 22, 2013) at 32.

       14 Report of Proceedings (May 16, 2013) at 23-24.

       15 Clerk's Papers at 105.
No. 70813-9-1/6



            Certain evidence has been admitted in this case for only a
      limited purpose. This [evidence consists of        and] may be
      considered by you only for the purpose of         . You may not
      consider it for any other purpose. Any discussion of the evidence
      during your deliberations must be consistent with this limitation.

      Thus, in this case, counsel ensured that the court properly instructed the

jury both before the potentially damaging testimony and before deliberations.

And the court's instructions properly mirrored the relevant WPIC. Accordingly,

counsel's performance was not deficient.

       Further, if the instruction had specifically mentioned propensity evidence,

it could have unduly emphasized the evidence. That was exactly the court's

concern in this case, when it refused to add language to the pattern jury

instruction. Accordingly, counsel's decision to use only the more general

language contained in the WPIC was a legitimate strategic decision, consistent

with the court's expressed concern.

       Because counsel's performance was not deficient, we need not address

whether the lack of a more specific instruction prejudiced Davis.

       Davis argues that his counsel was deficient by not proposing a jury

instruction that explicitly told jurors they could not use the evidence as propensity

evidence. Davis argues that case law requires an instruction telling jurors not to

use the evidence to conclude that the defendant has acted in conformity with his

or her character. Davis relies on State v. Gresham for this proposition.16

       Gresham states: "An adequate ER 404(b) limiting instruction must, at a

minimum, inform the jury of the purpose for which the evidence is admitted and


       16 173 Wn.2d 405, 269 P.3d 207 (2012).
No. 70813-9-1/7



that the evidence may not be used for the purpose of concluding that the

defendant has a particular character and has acted in conformity with that

character."17

       But Gresham did not modify the standard for a proper 404(b) limiting

instruction. Instead, it merely restated the requirements. In that case, the trial

court failed to give any limiting instruction after counsel proposed an incorrect

instruction.18 The supreme court held that this failure to give an instruction was

error.19

       In this case, the instruction was consistent with the language in Gresham.

It did not explicitly tell jury members that they could not use the evidence to

"conclud[e] that the defendant has a particular character and has acted in

conformity with that character." But it told the jurors that they could use the

evidence 'onlyfor the purpose of res gestae, identity, and/or modus operandi."20

This statement necessarily implies that the jury may not use the evidence to

conclude that Davis acted in conformity with his character. But even if one could

conclude there is no such implication, the instruction goes on to say "[y]ou may

not consider [the evidence] for any other purpose."21 This resolves any doubt

about the proper use of the evidence.



       17 Id, at 423-24.

       18 id at 424.

           19 Id

           20 Clerk's Papers at 105 (emphasis added).

           21
                Id.
No. 70813-9-1/8



       Accordingly, the instruction in this case told the jury what purpose the

evidence was admitted for and prohibited them from using it for any other
purpose, including as propensity evidence. Thus, the instruction was consistent

with the language in Gresham.

      We affirm the judgment and sentence.

                                                          C&fiJT.
WE CONCUR:




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