        IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 80631-9-I
                        Respondent,
        v.                                       DIVISION ONE

CHRISTOPHER KEFFELER,                            UNPUBLISHED OPINION

                        Appellant.               FILED: January 13, 2020


        LEACH, J.   —   Christopher Keffeler challenges his conviction and sentence

for felony harassment.       He asserts that he received ineffective assistance of

counsel because his trial attorney did not object to testimony about prior bad

acts.   And he claims that the trial court imposed an unconstitutionally vague

community custody condition.

        He did not receive ineffective assistance of counsel because the trial court

was not likely to sustain an objection to the bad acts testimony. But because the

condition prohibiting Keffeler from associating with “known drug users or sellers”

is unconstitutionally vague, we remand for the trial court to address the invalid

condition consistent with this opinion.
No. 80631-9-1/2


                                     BACKGROUND

       On August 5, 2017, Melinda Hulin called the police after her fiancé,

Christopher Keffeler, threatened her that day and the day before. Several Mason

County sheriff deputies responded to the call.         Keffeler allowed medics to

transport him to the hospital for a mental health evaluation.                After he was

medically cleared for booking, an officer arrested him and transported him to jail.

The State charged him with one count of domestic violence felony harassment

with a domestic violence component.

       At the trial, Hulin testified that on August 4, 2017, she, Keffeler, and a

neighbor were having a conversation on their deck.         At some point, Keffeler

stood in front of Hulin, made a fist, and yelled at her to stand up. The neighbor

left. Hulin described the following:

      [Keffeler] ended up telling me to take off my clothes and lay naked
      face down with my arms stretched out in front of me and my face
      face-down on the deck. He was sitting in front of me. He had a
      knife that he made; he has a rope and a leash; and, you know,
      saying that he didn’t know which one he should use and that, you
      know, he could fillet me and the neighbors would come and feed on
      me, and said when you’re about to die what do you do? You pray
      to God. And then he made, you know, he told me to pray to him as
      God for forgiveness. And then after that, you know, I mean, I
      ended up peeing myself it scared me so bad. And then he told me
      to get up, as Christopher [Keffeler], tells me to get up, put my
      clothes back on and go into the house where                . it was
                                                                     .   .


      safe  .   and we could talk.
                .   .




      The defense called forensic psychologist Dr. Brett Trowbridge as its expert

witness. Trowbridge testified that he evaluated Keffeler and reviewed his mental

health history.         Based on this information, he concluded that Keffeler had



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No. 80631-9-I / 3


posttraumatic stress disorder (PTSD) and schizoaffective disorder. Trowbridge

testified that he believed that at the time of the events, this mental illness

significantly diminished Keffeler’s capacity to form the mental state of knowledge

necessary to commit felony assault.

        During cross-examination, Trowbridge said he did not think a person’s

prior convictions of assault were relevant to a diminished capacity defense but

that someone else might and it probably was a legal question. He testified that

he reviewed records of prior convictions and that he believed Keffeler had been

convicted previously of fourth degree assault.            The prosecutor also asked

whether Trowbridge recalled anything from Keffeler’s clinical history about his

“attitude toward and threats toward police officers.” He referred to “Dr. Kirkeby

and Dr. Lokhmotov’s report” from a 2015 event and asked Trowbridge to read

from a page in that report. Trowbridge read the following out loud:

       He’s been in police custody for three days. He has a new person in
       his body named Jeff that has been telling him to get the police
       agitated to the point the [sic] would attack him and try to kill him,
       then Jeff would come out, changing into the form of The Hulk, but in
       fire form, and he would kill all the police, very calm and matter of
       fact telling his story.
(Alteration in original.)

       The prosecutor also asked whether Trowbridge recalled seeing anything

in Keffeler’s clinical history “where he had thoughts about killing his stepmother.”

Trowbridge answered that “[alt one point he was even hospitalized because he

was feeling like killing her.” Trowbridge agreed that, in the past, Keffeler “actually

talked about not just killing evil entities but killing real people.”


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No. 80631-9-1/4


       On redirect, Trowbridge agreed with the defense attorney’s assertion that

in the incident where Keffeler said he wanted to kill police, it was actually “Jeff,”

who also might emerge as “The Hulk,” who was speaking. He also agreed with

the defense attorney’s statement that Keffeler admitted himself to the hospital

when he threatened his stepmother.              Defense counsel then elicited further

testimony from Trowbridge about Keffeler’s mental health issues, including

multiple hospitalizations starting when he was a teenager.

       In its rebuttal, the State called Dr. Roman Lokhmotov. He and another

specialist had diagnosed Trowbridge with unspecified schizophrenia spectrum

and did not evaluate him for PTSD. Lokhmotov did not agree with Trowbridge’s

conclusion that Keffeler’s mental illness substantially diminished his ability to

possess the mental state of knowledge at the time of the incident. He testified

that despite his delusions, Keffeler “was able to know where he was, who he was

speaking to and what the purpose of the evaluation was.” He also testified that

Keffeler “had knowledge of his ability to elicit fear in other persons or entities.”

       In closing, Keffeler’s counsel summarized the defense that Keffeler’s

mental illness resulted in a diminished capacity and so he could not “form the

knowledge” necessary for felony harassment.             Defense counsel stated that

Keffeler was “not knowingly making threats on [Hulin’s] life.         He was making

threats on the entities that he perceived inside.” Defense counsel concluded,

“Mr. Keffeler was not a reasonable person at the time, and using this standard




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No. 80631-9-I / 5


you’d have to find him not guilty, [bejcause that’s the standard for knowledge,

which is the issue for you all to decide today.”

       The jury returned a guilty verdict. The court sentenced him, as a first time

offender, to 90 days of confinement. A condition of community custody required

that “[t]he defendant shall not associate with any known drug users or sellers,

except in the context of a chemical dependency treatment program approved by

the CCC [Community Custody Officer].”

       Keffeler appeals his judgment and sentence.

                                     ANALYSIS

       Keffeler claims that his attorney provided ineffective assistance because

he did not object to trial testimony about Keffeler’s prior assault conviction and

statements about killing others.

       We review claims of ineffective assistance of counsel de novo.1           To

succeed on an ineffective assistance of counsel claim, the appellant must

establish that the trial attorney performed below an objective standard of

reasonableness and that this failure resulted in prejudice.2 This court strongly

presumes that trial counsel provided effective representation.3      The appellant

may rebut this presumption only with a clear showing of incompetence.4 “The

decision of when or whether to object is a classic example of trial tactics. Only in


       1State v. Feely, 192 Wn. App. 751, 768, 368 P.3d 514 (2016).
      2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
      ~ State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d. 1251 (1995).
      ~ State v. Varga, 151 Wn.2d 179, 199, 86 P.3d 139 (2004).


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No. 80631-9-I / 6


egregious circumstances, on testimony central to the State’s case, will the failure

to object constitute incompetence of counsel justifying reversal.”5

       To convict Keffeler of harassment under RCW 9A.46.020, the State had to

prove that he knowingly threatened to kill Hulin.6 Rather than contest the facts,

Keffeler asserted that his mental illness diminished his capacity to knowingly

commit this crime.      A diminished capacity defense challenges the culpability

element of the crime.7 A defendant asserting this as a defense to a charge of

felony harassment must show that his diminished capacity prevented him from

having the knowledge element of the crime.8

       Keffeler asserts that his trial attorney’s failure to object to evidence of

three prior bad acts could not be part of a reasonable trial strategy. And he

claims that the bad acts were not admissible under ER 404(b) because they were

overly prejudicial and not relevant.

       ER 404(a) states, “Evidence of a person’s character or a trait of character

is not admissible for the purpose of proving action in conformity therewith on a

particular occasion.”    But ER 404(b) allows admission of this evidence for

another purpose, for example, to establish that a defendant had the requisite

state of mind at the time.9 To be admissible to prove state-of-mind, it must be



       ~ State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
      6  RCW 9A.46.020(1 )(a)(ii), (b), (2)(b)(ii).
      ~ State v. Gough, 53 Wn. App. 619, 622, 768 P.2d 1028 (1989).
      8 Gouqh, 53 Wn. App. at 622; see also State v. Swaqerty, 60 Wn. App.
830, 833, 810 P.2d 1(1991).
      ~ State v. Fisher, 165 Wn.2d 727, 744, 202 P.3d 937 (2009).


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No. 80631-9-I / 7


“relevant under ER 401, and its probative value must outweigh the danger of

unfair prejudice [as required by] ER 403.”bo

       Trowbridge testified about the three bad acts at issue. Trowbridge read

from a report describing an incident when Keffeler said he had “a new person in

his body named Jeff” who wanted him to agitate the police so that they would

attack him and then Jeff would change into the form of “The Hulk” and kill the

officers. Trowbridge also described Keffeler’s admission to the hospital that he

felt like killing his stepmother.    Finally, he testified about Keffeler’s prior

conviction for assault.

       All three of these prior acts were relevant to the question of whether

diminished capacity interfered with Keffeler’s ability to form the requisite intent.

Both the incident involving Keffeler’s attitude toward the police and his admission

to the hospital support defense’s assertion that he suffered from mental illness.

Indeed, defense counsel’s questioning, on redirect, shows that defense counsel

wanted the evidence admitted, albeit with a different narrative from what the

State offered. He elicited testimony from Trowbridge that when Keffeler said he

wanted to kill police, it was actually “Jeff” speaking, who also might emerge as

“The Hulk,” not Christopher Keffeler. And he elicited Trowbridge’s agreement

that Keffeler admitted himself to the hospital when he thought he might kill his

stepmother.    Defense counsel elicited additional testimony from Trowbridge



        State v. Acosta, 123 Wn. App. 424, 434, 98 P.3d 503 (2004); State v.
       ~°

Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995).

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No. 80631-9-I /8


about Keffeler’s mental health issues, including multiple hospitalizations starting

when he was a teenager.

          The testimony about a conviction for fourth degree assault was relevant to

the issue of the capacity to form the requisite state of mind because an element

of fourth degree assault in Washington is intent.11 And because the conviction

occurred within five years of the crime charged, it was not so distant in time to

make it irrelevant.12

          None of the evidence of the three bad acts was more unfairly prejudicial

than probative. The evidence describing Keffeler’s statements about the police

and the evidence that he was hospitalized when he wanted to kill his stepmother

could be viewed as supporting his defense at trial.        Because it could go to

supporting Keffeler’s defense argument, its probative value outweighed its

prejudicial effect, which was minimal.

       The testimony about the assault conviction was more prejudicial.         But

because it went to the central issue of Keffeler’s capacity to form the requisite

state of mind, it was probative. The fact that it occurred almost five years before

the incident at issue reduced its probative value. But its prejudicial effect was

also diminished because Trowbridge said he believed that Keffeler had a

conviction but the court did not admit any record of the conviction as evidence.

          ~ See, e.g., State v. Walden, 67 Wn. App. 891, 893-94, 841 P.2d 81
(1992).
         C~ Acosta, 123 Wn. App. at 434-35 (pointing out that while some of the
          12
convictions and arrests were over two years old, many were more than a decade
old and so did not provide insight into the state of mind during the offense
charged).

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No. 80631-9-I /9


Trowbridge said he did not think it was relevant to the issue of diminished

capacity but that others might.

       So it is unlikely that the trial court would have sustained an objection to

this evidence. But even if the court would have, Keffeler does not establish that it

was “testimony central to the State’s case.” So he fails to show prejudice from

counsel’s failure to object to this evidence.

       Keffeler compares this case to State v. Acosta,13 where, as in this case,

the defendant asserted diminished capacity. The Acosta court concluded that

evidence of 23 prior arrests and convictions, many dating back to more than a

decade before the offense charged, was not relevant and was overly

prejudicial.14 In contrast to the evidence challenged here, the evidence against

Acosta included unproved charges and convictions for crimes under California

law that were “not comparable” to crimes under Washington law.15 The evidence

here was directly relevant to the question of Keffeler’s capacity to form the

requisite state of mind. And much of it could have been received by the jury as

supporting Keffeler’s defense by providing evidence of mental illness.            So

defense counsel’s decision not to object can be viewed as a legitimate trial tactic.

       We conclude that Keffeler failed to establish that his trial attorney provided

ineffective assistance.




       13 123 Wn. App. 424, 428-29, 434, 98 P.3d. 503 (2004).
       14 Acosta, 123 Wn. App. at 434-35.
       15 Acosta, 123 Wn. App. at 432.



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                            Community Custody Condition

       Keffeler claims that the community custody condition restricting him from

associating with known drug users or sellers is unconstitutionally vague.

       We review community custody conditions for abuse of discretion and will

reverse a manifestly unreasonable condition.16             We do not presume that a

community custody condition is constitutional.17 A trial court’s imposition of an

unconstitutional condition is always manifestly unreasonable.18

       The due process protections in the federal constitution and the

Washington State Constitution require fair warning of proscribed behavior.19 If a

community custody does not provide this warning, it is unconstitutionally vague.20

So a community custody condition must (1) ‘define the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is

proscribed” and (2) “provide ascertainable standards of guilt to protect against

arbitrary enforcement.”21        A community condition that implicates         First

Amendment rights, like the right of assembly, must be particularly clear so as not

to “cause a chilling effect” on the implicated rights.22




       16State v. Irwin, 191 Wn. App. 644, 652, 364 P.3d 830 (2015).
       17State v. Sanchez Valencia, 169 Wn.2d 782, 793, 239 P.3d 1059 (2010).
      18 Irwin, 191 Wn. App. at 652.
      19 U.S. CONST. amend. XIV, § 1; WASH. CONST. art. I, § 3; State v. BahI,
164 Wn.2d 739, 752-53, 193 P.3d 678 (2008).
     20 BahI, 164 Wn.2d at 752-53.
     21 BahI, 164 Wn.2d at 752-53 (quoting City of Spokane v. Douglass, 115
Wn.2d 171, 178, 795 P.2d 693 (1990)).
     22 BahI, 164 Wn.2d at 753.



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No. 80631-9-I Ill


       A community custody condition is valid if, given the context in which its

terms are used, a person of ordinary intelligence can understand what behavior it

forbids.23 The condition need not provide “complete certainty as to the exact

point at which [the convicted person’s] actions would be classified as prohibited

conduct.”24   And a sufficiently clear condition can withstand a challenge of

vagueness “notwithstanding some possible areas of disagreement.”25

       Keffeler asserts that the word “known” is impermissibly vague in context.

And he claims that the term “drugs” is vague because of the legalization of

recreational marijuana in some states. We addressed these same claims in a

case published last year, In re Personal Restraint of Brettell,26 where the

appellant challenged a community custody condition stating, “Do not associate

with known users or sellers of illegal drugs.” And we held in Brettell that a

condition barring him from “associat[ing] with known users or sellers of illegal

drugs” was not impermissibly vague.27 Keffeler does not provide an argument

sufficient to convince us that Brettell was incorrectly decided.

       But the condition we reviewed in Brettell is not identical to the condition

challenged here. Brettell complained about a condition that prohibited him from

associating with “known users and sellers of illegal drugs.”28 Here, no adjective

       23 BahI, 164 Wn.2d at 754.
       24 State v. Hai Minh Nguyen, 191 Wn.2d 671, 681, 425 P.3d 847 (2018).
       25 BahI, 164 Wn.2d at 754 (quoting Douglass, 115 Wn.2d at 179).
      26 6 Wn. App. 2d 161, 169, 173, 430 P.3d 677 (2018) (Keffeler does not
mention Brettell, despite the fact that it is on point and is precedent in this court),
review denied, No. 96677-0 (Wash. July 3, 2019).
      27 Brettell, 6 Wn. App. 2d at 169 (alteration in original).
      28 Brettell, 6 Wn. App. 2d at 172 (emphasis added).



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No. 80631-9-I /12


modifies the word “drugs.”       So the condition can be read as prohibiting

association with people using and selling both legal and illegal drugs.           For

example, a pharmacist, a cashier who regularly sells over the counter pain

medicine, or a friend taking antibiotics are examples of legal drug users or

sellers. Because this language is overbroad, the condition fails to provide notice

to a person of ordinary intelligence of what it prohibits and risks arbitrary

enforcement. We remand for the trial court so it can modify the condition to read

“shall not associate with any known drug users or sellers of illegal drugs.”

                                  CONCLUSION

       Because the community custody condition is unconstitutionally vague, we

vacate it and remand to the trial court to address it in a manner consistent with

this decision. As Keffeler fails to establish his trial attorney provided ineffective

assistance of counsel, we otherwise deny his request for relief.




WE CONCUR:




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