                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            April 23, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                 No. 50582-7-II

                                Respondent,

         v.

 JOHN MICHAEL HODGES,                                          UNPUBLISHED OPINION

                                Appellant.

       WORSWICK, J. — A jury found John Hodges guilty of second degree identity theft and

second degree possession of stolen property. Hodges appeals his convictions, arguing that (1) he

received ineffective assistance of counsel when counsel (a) failed to investigate and present

witnesses and evidence, (b) failed to propose a missing witness instruction, (c) failed to impeach

a State witness and object to evidence, (d) invited the jury to convict during closing arguments,

(e) failed to argue same criminal conduct at sentencing, and (f) failed to cite relevant case law in

his motion for an exceptional sentence downward; (2) the trial court erred by denying his motion

for new trial; and (3) the State failed to present sufficient evidence supporting his convictions.

       We hold that the State presented sufficient evidence to support his convictions. We also

hold that Hodges’s counsel was not ineffective, and because Hodges fails to demonstrate that he

received ineffective assistance of counsel, he also fails to show that the trial court abused its

discretion by denying his motion for new trial on the same grounds. Consequently, we affirm

Hodges’s convictions.
No. 50582-7-II


                                             FACTS

A.     Background Facts

       On December 5, 2015 Hodges went to Tower Lanes to play miniature golf with his

daughter and grandson. He used a credit card with the name Dean Solomon to pay the $20.00

fee for the golf game. When signing the receipt, Hodges “scribbled in a name.” 3 Verbatim

Report of Proceedings (VRP) (Feb. 15, 2017) at 275.

       Also on December 5 Solomon discovered unauthorized transactions made on her credit

card. She discovered that the card had been used the day before multiple times, and had just

been used minutes before at Tower Lanes. She immediately called Tower Lanes and then called

the police department. Trenton Christensen, an employee at Tower Lanes, helped locate the

transaction and identified Hodges as the person who had used Solomon’s card.

       When Tacoma Police Officer Jesse Jahner responded to Tower Lanes, Christensen,

directed Officer Jahner to Hodges. Officer Jahner told Hodges that he was there because of a

stolen credit card. Hodges responded by telling Officer Jahner that he was going to call Walter

Clark who had given him the card because Clark owed him $50 or $60. Hodges gave Solomon’s

card to Officer Jahner.

       Christensen also gave Officer Jahner the receipt from Hodges’s transaction. Officer

Jahner observed that “it appeared [Hodges] had tried to sign a large cursive D, and it looked like

the signature ‘Dean’ on it.” 2 VRP (Feb. 14, 2017) at 228.

       The State charged Hodges with second degree identity theft and second degree

possession of stolen property. Hodges proceeded to a jury trial.




                                                2
No. 50582-7-II


B.     Trial

       Throughout the trial court proceedings, Hodges was represented by three different

attorneys. First, he was represented by Michael Maltby. Then, for reasons unclear from the

record on appeal, Charles Johnston represented Hodges throughout trial. Finally, after the jury’s

verdict, but before Hodges was sentenced, a third attorney represented Hodges during his motion

for a new trial and sentencing.

       Trial was continued multiple times. The State named Clark as a witness and subpoenaed

him for two trial dates, which were continued. Clark was not subpoenaed for the final trial date.

The State told the court that “Clark is not available to testify,” and defense counsel agreed,

noting that “Clark is long gone.” 3 VRP (Feb. 15, 2017) at 265. Hodges named “Ashley

Hodges” as a witness and also told the trial court that he and his trial counsel had discussed

whether to have his daughter testify.1 CP at 221.

       At trial, Solomon and Officer Jahner testified consistently with the above facts.

Christensen testified that he did not confront Hodges before the police arrived, and that he did not

see his supervisor confront Hodges before police arrived. The receipt was admitted into evidence.

       Solomon also testified that Clark moved out of her house approximately one week after

Hodges used her card. She testified that a few weeks after Hodges used the card, she received a

letter in her mailbox. The letter was not in an envelope, but was with the rest of her mail. The

letter was written to Clark from Hodges. The court admitted the letter. Hodges did not object to

the admission of the letter, and stipulated to the chain of custody. On cross-examination,



1
 It appears that Ashley Hodges is John Hodges’s daughter, but the record is not explicit on this
point.


                                                 3
No. 50582-7-II


Hodges’s counsel questioned Solomon about her discovery of the letter. Solomon reiterated that

she discovered the letter without an envelope.

The letter stated:

        To Wally,
        Hey, what[’]s happening? Remember me? “ED” (Dean Solomon) and I had picked
        you up from Motel 6 that Friday night, December 4, then we went to Les (Doc’s)
        house on East 64th and Portland Ave. til morning. Then I started walking to the
        72nd St. transit center, where you and ED (Dean Solomon) had picked me up. ED
        (Dean Solomon) gave us (you [and] me) a ride home to my motor home downtown
        at the car lot where my Explorer was. Do you remember when “ED” (Dean
        Solomon) gave me his [D]irect [E]xpress card and told me to go ahead and use it
        and to sign the name Dean Solomon on any receipt and to get the card back to him
        later that day? Well he tried to contact me a few hours later and couldn’t reach me,
        so he got scared he wasn’t gonna get the card back and decided to call it in stolen
        and never even attempted to call or text me to inform me he had called it in stolen.
        So when I used it to pay for putt-putt golf at [T]ower [L]anes that Saturday evening
        with my 5 year old grand-son, the card was stolen and I got arrested in front of my
        grandson! . . . However, you can help by simply writing a statement to my attorney
        . . . stating you witnessed “ED” (Dean Solomon) give me his card when he dropped
        me off. You following me on this buddy?

        Of course you are. I please need you to have my back on this. Wally, this means
        the world to me and my grandson[’]s little heart is broken wondering where his
        papa is at. So if you could contact my attorney

        ...

        and state:

        I Wally Clark, did witness Dean Solomon give a [D]irect [E]xpress card to John
        Hodges, and did hear Dean Solomon authorize John Hodges to use it and sign the
        name Dean Solomon. Wally Clark

        ....

        That’s it man. Nothing else needs to be said! This can be done privately in my
        attorneys [sic] office between you and my attorney. Nothing will happen except the
        charges against me will be dismissed in court . . . . No you won’t have to come to
        my court hearings or trial. Just need a signed statement from you please please
        please. I will give my attorney your phone [number] on Monday. Thanks man,
        hope to see ya soon.


                                                 4
No. 50582-7-II



         Your friend John Hodges.

Ex. 2.

         Hodges testified that on December 4, 2015, he went to a party with his friend “Ed” and

Walter Clark, who he met for the first time that night. 3 VRP (Feb. 15, 2017) at 261. Hodges

brought bottles of alcohol to the party. Hodges gave the bottles to Clark in exchange for money.

As payment, Clark gave Hodges a credit card with the name Dean Solomon on it. Solomon was

Clark’s roommate.

         Hodges testified that when Clark gave him the credit card at the party, he did not look at

the name on the card. Hodges assumed that the card belonged to Clark.

         Hodges testified that he went to Tower Lanes to play miniature golf, and paid with the

card. While playing golf, the supervisor at Tower Lanes approached him, and he understood that

the card was not authorized. His daughter paid the supervisor for the golf, and they continued to

play. At that point, Hodges called Clark, who hung up on him. He tried to call Clark while

talking to Officer Jahner, but Clark would not respond.

         Hodges testified that he did not know that he was not authorized to use the card, that the

card did not belong to Clark, or that the card was stolen. Hodges denied signing the receipt

“Dean,” and testified that he “scribbled” a name. 3 VRP (Feb. 15, 2017) at 275. He explained

that he regularly used his boss’s credit card for work, and would sign a version of his boss’s

name on the receipt. Hodges testified that “I just scribbled in a name like I do when—I used

Dan Kuchan’s card all the time to go to Home Depot or Lowe’s.” 3 VRP (Feb. 15, 2017) at 275.

         Hodges testified that he wrote the letter to Clark admitted as exhibit 2, but that he mailed

it in an envelope. He explained that, under the belief that Clark was responsible for the stolen


                                                   5
No. 50582-7-II


card, the letter was part of his plan to clear his name without scaring Clark away. Hodges

believed that Clark stole Solomon’s card from Hodges’s friend, Ed, because “the first two letters

of the name Dean backwards is Ed, so I thought, wow, my friend Ed is Dean Solomon, so I

thought [Clark] may have taken the card from my friend Ed.” 3 VRP (Feb. 15, 2017) at 282.

Hodges was concerned that if he accused Clark, Clark would run. So Hodges “figured that if

[he] made [Clark] believe that he wasn’t going to get in trouble, that [Clark] might write the

statement that would get me out of jail for something I didn’t do and then we and my friend Ed

could go after him and find out what the deal was.” 3 VRP (Feb. 15, 2017) at 285.

       Hodges testified that the substance of his letter was untrue, and that Solomon had not

given Hodges the card or authorized him to use it. Hodges said he was “shifting the blame to the

person that [he] thought owned the card,” and that he “would have perpetrated a fraud on [the]

Court” in an effort to dismiss his charges. 3 VRP (Feb. 15, 2017) at 294-95. He testified that he

would have committed fraud on the court because it was important to him to avoid charges.

       During closing arguments, Hodges argued:

       “Well, that looks like a D to me,” again, spontaneous. He said, “I didn’t know the
       name that was on that card. I scribbled a name on it.” He testified in court that it
       turned out to be—he scribbles his boss’s name because he scribbles his boss’s name
       on the credit card at work. And you’ll get this. You know, if you—if you look at
       this and you say that says “Dean Solomon,” I guess you’re going to convict him.
       But if you look at this and say that’s a scribble, looks like a D and a scribble, then
       you know he is telling you the truth. You know he is telling you the truth. You’ll
       have that back there, and you all can study that as long as you can. That does not
       say Dean Solomon.

               And before I leave that point, Mr. Hodges says, “I’m not going to write
       Wally Clark or anybody—Wally Clark gave me the name. I[’m] not going to write
       Wally Clark’s name because I am not Wally Clark. So I just scribble a name on
       there so I don’t get in trouble for writing somebody else’s name.” So that’s—that’s
       a fact. These are things that came from the stand during this trial. Wally Clark,
       Wally Clark, Wally Clark, Wally Clark. Reasonable inference, stole that card.


                                                 6
No. 50582-7-II


       Wally Clark handed that card to Mr. Hodges, and Mr. Hodges’ behavior and how
       he used that card after it was given to him leads to the reasonable, common sense
       inference that he didn’t know it was stolen. He had no knowledge it was stolen.
       He had no intent to commit a crime when he paid $20—plus, you’ll see on the thing
       $19 on the receipt and he gave Mr. Christensen a dollar tip. It defies logic. It defies
       common sense that if he knew that card was stolen and if he intended to commit a
       crime, that that’s the crime he chooses to commit with a stolen credit card. Now,
       come on. Do not lose your common sense. Look at this for what it is, and those
       are the facts.

3 VRP (Feb. 15, 2017) at 330-31.

       The jury found Hodges guilty as charged.

C.     Post Trial

       At the sentencing hearing, Johnston asked to withdraw because Hodges blamed him for

the guilty verdict. The court allowed Johnston to withdraw and Hodges to proceed pro se.

Hodges, acting pro se, moved for a mistrial and for dismissal. Hodges claimed that he received

ineffective assistance of counsel, and that he had “proof that the prosecutor has led all three of

our witnesses of committing perjury.” 4 VRP (March 10, 2017) at 369-70. The State objected,

and Hodges asked the court to appoint new counsel. The court appointed new counsel and set a

new hearing date.

       Hodges returned with new counsel and filed a motion for new trial under CrR 7.5. He

argued he was entitled to a new trial based on CrR 7.5(a)(4), (5), and (8). He claimed that law

enforcement’s lack of investigation into his claims, Clark, and the case generally constituted

misconduct by the prosecution and an irregularity in the proceedings under CrR 7.5(a)(2) and

(5). He also claimed that he received ineffective assistance of counsel, entitling him to a new

trial under CrR 7.5(a)(8).




                                                  7
No. 50582-7-II


       In his motion for new trial, Hodges stated, in an unsigned declaration, that Clark e-mailed

Maltby, telling him that Hodges was innocent. Hodges also stated that Clark exchanged text

messages with Maltby’s investigator. Hodges stated that he repeatedly asked Johnston to obtain

the e-mails and text messages regarding Clark, but that Johnston did not get the evidence.

Hodges also claimed that Christensen’s and Officer Jahner’s testimony was incorrect because

they contradict his testimony that Hodges gave the card to the supervisor at Tower Lanes.2

Hodges also claimed that Solomon illegally obtained his letter to Clark, and therefore it should

not have been admitted. The court denied Hodges’s motion for new trial.

       At sentencing, Hodges stipulated to his prior offender score, which was 9+. Hodges

requested an exceptional sentence downward, based in part on his serious medical conditions and

the relatively low value of the transaction. The court considered the request, but found that an

exceptional sentence downward was not warranted. The court noted that it was not “entirely an

easy case because the circumstances of the case, yes, it was $20. It was for an outing with his

grandchild.” 6 VRP (June 8, 2017) at 429. But the court found that Hodges’s testimony about

the letter made it clear that Hodges knew that the card did not belong to him and “that he was

willing to put a fraud on the Court in order to get out of liability here.” 6 VRP (June 8, 2017) at

429. The court stated that it “cannot find that there are the substantial and compelling

circumstances to warrant an exceptional [sentence] downward.” 6 VRP (June 8, 2017) at 429.




2
 In support of his motion for a new trial, Hodges cites to exhibits, presumably attached to his
declaration. However, the record on appeal does not contain exhibits to Hodges’s motion for
new trial. It is Hodges’s burden to provide this court with an adequate record for review. RAP
9.2(b); Stiles v. Kearney, 168 Wn. App. 250, 259, 277 P.3d 9 (2012).


                                                 8
No. 50582-7-II


The court acknowledged that although Hodges had an extensive criminal history, he did not have

any felony convictions in the last nine years.

       The court sentenced Hodges to 48 months of confinement on second degree identity theft,

with 12 months of community custody, and 26 months of confinement on second degree

possession of stolen property, to run concurrently. Hodges appeals.

                                            ANALYSIS

       Hodges argues that the State failed to present sufficient evidence to support his

convictions, that he received ineffective assistance of counsel, and that the trial court abused its

discretion by denying his motion for new trial. We disagree.

A.     Sufficiency of the Evidence

       Hodges argues that the State presented insufficient evidence of second degree identity

theft and second degree possession of stolen property. Specifically, he argues that the State

failed to prove that he knew that he was using a stolen credit card. We disagree.

       Due process requires the State to prove every element of the charged crimes beyond a

reasonable doubt. State v. Kalebaugh, 183 Wn.2d 578, 584, 355 P.3d 253 (2015). We review

sufficiency of evidence claims for whether, when viewing the evidence in the light most

favorable to the State, any rational trier of fact could have found the essential elements of the

charged crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182

(2014). In a challenge to the sufficiency of the evidence, the defendant admits the truth of the

State’s evidence and all reasonable inferences that can be drawn from it. Homan, 181 Wn.2d at

106. Direct and circumstantial evidence are considered equally reliable. State v. Farnsworth,

185 Wn.2d 768, 775, 374 P.3d 1152 (2016). We also “defer to the trier of fact on issues of



                                                  9
No. 50582-7-II


conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” State v.

Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       1. Sufficient Evidence Supports Possession of Stolen Property Conviction

       To convict Hodges of possessing stolen property, the State must prove that he possessed

the property, that the property was stolen, and that Hodges knew that the property was stolen.

RCW 9A.56.160. Knowledge that the item is stolen is an element of second degree possession

of stolen property. RCW 9A.56.140, .160. Direct evidence and circumstantial evidence are

equally reliable to establish knowledge. Farnsworth, 185 Wn.2d at 775. Although mere

possession is insufficient to establish knowledge, possession of recently stolen property together

with slight corroborative evidence will support a conviction for possession of stolen property.

State v. Scoby, 117 Wn.2d 55, 61-62, 810 P.2d 1358, 815 P.2d 1362 (1991); State v. Couet, 71

Wn.2d 773, 775, 430 P.2d 974 (1967). The other corroborative evidence can consist of a false or

improbable explanation or inconsistent explanations. State v. Ladely, 82 Wn.2d 172, 175, 509

P.2d 658 (1973); State v. Rockett, 6 Wn. App. 399, 403, 493 P.2d 321 (1972). We defer to the

jury on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. Thomas, 150 Wn.2d at 874-75.

       Taking the evidence in the light most favorable to the State, we hold that Hodges’s

dubious and inconsistent explanation about the card, and his attempt to sign the receipt with the

name of the cardholder was sufficient corroborative evidence to prove that he knew the card was

stolen. See Scoby, 117 Wn.2d at 62; see State v. Hatch, 4 Wn. App. 691, 694, 483 P.2d 864

(1971) (holding that possession of recently stolen property coupled with a dubious account of its

acquisition are sufficient facts to support conviction).



                                                 10
No. 50582-7-II


       2. Sufficient Evidence Supports Identity Theft Conviction

       Hodges argues that the State failed to present sufficient evidence because the State failed

to prove that he knew he was using a stolen card. Specifically, Hodges asserts that an “essential

element” of second degree identity theft is that he “knew he was using a stolen” credit card. Br.

of Appellant at 44. We disagree.

       The essential elements of the crime are those that the prosecution must prove to sustain a

conviction. State v. Mason, 170 Wn. App. 375, 378-79, 285 P.3d 154 (2012).       In determining

the essential elements, we first look to the statute. Mason, 170 Wn. App. at 379. RCW

9.35.020(1) provides that a person is guilty of identity theft when he or she knowingly obtained,

possessed, used, or transferred a means of identification or financial information of another

person, with the intent to commit any crime.

       The State was required to prove that Hodges knowingly used a means of identification or

financial information of another person, and that he knew that means of identification or

financial information belonged to another person. The State was not, however, required to prove

that he knew that the card was stolen. Because the State was not required to prove that Hodges

knew he was using a stolen credit card, Hodges’s argument that the State failed to present

sufficient evidence of second degree identity theft fails.

B.     Ineffective Assistance of Counsel

       Hodges argues that he received ineffective assistance from his trial counsel. We hold that

trial counsel was not ineffective.

       We review ineffective assistance of counsel claims de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To establish a claim of ineffective assistance of counsel,



                                                 11
No. 50582-7-II


Hodges must show both deficient performance and resulting prejudice. State v. McFarland, 127

Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Ineffective assistance of counsel is a two-prong

inquiry. State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on an ineffective

assistance of counsel claim, a defendant must show that defense counsel’s performance was

deficient, and the deficient performance prejudiced the defendant. Grier, 171 Wn.2d at 32. A

failure to prove either prong ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d

563 (1996).

       There is no ineffective assistance when counsel’s complained of actions are trial tactics

or go to the theory of the case. Grier, 171 Wn.2d at 33. There is a strong presumption that

defense counsel’s conduct was not deficient. McFarland, 127 Wn.2d at 335. Because of this

presumption, “the defendant must show in the record the absence of legitimate strategic or

tactical reasons supporting the challenged conduct by counsel.” McFarland, 127 Wn.2d at 336.

The reviewing court will not consider matters outside the record on direct appeal. State v.

Linville, 191 Wn.2d 513, 525, 423 P.3d 842 (2018). Issues that require consideration of

evidence or facts not in the trial record are more properly the subject of a personal restraint

petition. Linville, 191 Wn.2d at 525.

       1. Failure To Investigate and Present Evidence

       Hodges argues that he received ineffective assistance from his trial counsel when counsel

failed to investigate and present evidence. To be effective, trial counsel must investigate the

case. State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015). This duty to investigate

includes interviewing witnesses. Jones, 183 Wn.2d at 339. “While [trial] counsel is not required

to interview every possible witness, the failure to interview witnesses who may provide



                                                 12
No. 50582-7-II


corroborating testimony may constitute deficient performance.” State v. Weber, 137 Wn. App.

852, 858, 155 P.3d 947 (2007).

       Counsel’s duty includes making reasonable investigations, or making a reasonable

decision that renders particular investigations unnecessary. In re Pers. Restraint of Gomez, 180

Wn.2d 337, 355, 325 P.3d 142 (2014). The decision whether to call a witness is generally

presumed to be a matter of trial strategy or tactics, but this presumption may be overcome by

showing that the witness was not presented because counsel failed to conduct appropriate

investigations. State v. Thomas, 109 Wn.2d 222, 230, 743 P.2d 816 (1987).

               a. Witnesses

       Hodges argues that he received ineffective assistance from his trial counsel when counsel

failed to investigate witnesses. Specifically, Hodges argues that defense counsel was ineffective

by failing to investigate and present witnesses, namely Clark who could possibly “testify that

[Hodges] had nothing to do with the offenses,” and his daughter and Zimmerman, who could

have corroborated his testimony about the sequence of events at the bowling alley. Br. of

Appellant at 26. The record does not show whether Clark, Hodges’s daughter, or Zimmerman

would have provided testimony beneficial to the defense. Hodges’s argument relies on matters

outside of the record that this court cannot review. Linville, 191 Wn.2d at 525.

       Hodges argues that Clark “sent emails and texts to [Maltby] stating that he received the

card from Ms. Solomon and corroborating that he provided the card to Mr. Hodges and that he is

innocent.” Br. of Appellant at 26. To support his assertion that Clark communicated with

Maltby, he cites to his motion for new trial. However, Hodges’s motion for a new trial contains




                                                13
No. 50582-7-II


an unsigned declaration and cites to exhibits not in the record on appeal. The record does not

contain any evidence about what Clark may have known or would have testified to.

       Hodges also claims that his daughter and Zimmerman would have testified that Hodges

gave the card to Zimmerman before the police arrived, corroborating his testimony and rebutting

Officer Jahner’s and Christensen’s testimony. He argues that offering the “correct sequence” of

events would have been pivotal to his defense because it would have demonstrated that he did

not know that the card was stolen. Br. of App. at 28. But this argument also relies on evidence

outside the record on appeal. The record does not contain any information about what Hodges’s

daughter or Zimmerman would have testified to.3

       Hodges relies on matters outside of the record to support each of his ineffective

assistance of counsel claims. Matters that are outside of the record cannot be considered on

direct appeal. Linville, 191 Wn.2d at 525. If Hodges wishes a reviewing court to consider

matters outside the record, a personal restraint petition is the appropriate procedure, and we do

not address these claims. Linville, 191 Wn.2d at 525.

               b. Exculpatory Evidence

       Hodges argues that defense counsel failed to present exculpatory evidence. Specifically,

he argues that counsel failed to obtain “exculpatory emails and texts” between Clark and Maltby,

and that counsel failed to investigate and present evidence regarding the earlier transactions on

the card. Br. of Appellant at 30.




3
 Further, despite Hodges’s arguments, the record shows that Hodges named an “Ashley
Hodges” as a witness, and that Hodges and his trial counsel discussed whether to have his
daughter testify. CP at 221.


                                                14
No. 50582-7-II


        As discussed above, full consideration of Hodges’s claim regarding communications

between Clark and Hodges’s former attorney appears to require knowledge of facts and evidence

that are not part of this court’s record.

        Hodges contends that without evidence of who made those earlier transactions on the

card, the jury could speculate that Hodges used it the day before, even though he testified that he

received it at the party. The record does not contain any information about whether counsel

investigated, or any reasons for not investigating. Because his claims rely on matters outside this

court’s record, we do not consider the issues. Linville, 191 Wn.2d at 525.

        2. Missing Witness Instruction

        Hodges asserts that defense counsel was deficient for failing to propose a missing witness

instruction for Clark. To show that he received ineffective assistance of counsel based on

counsel’s failure to request a particular jury instruction, Hodges must show that he was entitled

to the instruction, counsel’s performance was deficient in failing to request it, and the failure to

request the instruction caused prejudice. In re Pers. Restraint of Cross, 180 Wn.2d 664, 718,

327 P.3d 660 (2014), abrogated by State v. Gregory, 192 Wn.2d 1 (2016).

        “A missing witness instruction informs the jury that it may infer from a witness’s absence

at trial that his or her testimony would have been unfavorable to the party who would have

logically called that witness.” State v. Reed, 168 Wn. App. 553, 571, 278 P.3d 203 (2012). If a

party fails to call a particular witness or present certain evidence when it would seem logical to

do so, an inference may arise that the evidence or testimony would have been unfavorable to the

party. State v. Montgomery, 163 Wn.2d 577, 598-99, 183 P.3d 267 (2008). A court should give

a missing witness instruction only if three criteria are satisfied:



                                                  15
No. 50582-7-II


       First, the doctrine applies only if the potential testimony is material and not
       cumulative. Second, the doctrine applies only if the missing witness is particularly
       under the control of [one party] rather than being equally available to both parties.
       Third, the doctrine applies only if the witness’s absence is not satisfactorily
       explained.

Montgomery, 163 Wn.2d at 598-99 (citations omitted).

       Hodges has not demonstrated, and the record does not show, that he was entitled to a

missing witness instruction for Clark. There is no evidence that Clark would have provided

testimony beneficial to Hodges, and there is no evidence that he was particularly available to the

State.4 Further, both parties represented to the trial court that Clark was unavailable, when the

State noted that “Clark is not available to testify,” and defense counsel agreed that “Clark is long

gone.” 3 VRP (Feb. 15, 2017) at 265. The record on appeal does not contain any other

information about Clark’s whereabouts.

       Because there is no evidence that Clark was particularly available to the State, Hodges

has not demonstrated that he was entitled to a missing witness jury instruction. Therefore, we

hold that defense counsel’s failure to request a missing witness instruction did not constitute

ineffective assistance.

       3. Failure To Impeach Solomon

       Hodges argues that defense counsel provided ineffective assistance by failing to impeach

Solomon. Specifically, he argues that counsel should have “impeach[ed] [Solomon] regarding




4
 Hodges states that “Clark was known to be incarcerated at the time therefore available for
service.” Br. of App. at 9. But, Hodges does not cite to the record to support the assertion.


                                                 16
No. 50582-7-II


[her] acquisition of a letter addressed to someone else,” and obtained in violation of federal law.5

Br. of Appellant at 31.

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

re Pers. Restraint of Davis, 152 Wn.2d 647, 720, 101 P.3d 1 (2004); State v. Jonhston, 143 Wn.

App. 1, 20, 177 P.3d 1127 (2007). We will not find ineffective assistance of counsel based on

trial counsel’s decisions during cross-examination if counsel’s performance fell within the range

of reasonable representation. Johnston, 143 Wn. App. at 20.

       Solomon testified that she received the letter with her mail, but that the letter was not in

an envelope. Hodges, however, contends that he sent the letter to Clark in an envelope. Hodges

posits that therefore, Solomon must have improperly obtained the letter, in violation of federal

law. And because Solomon must have improperly obtained the letter, counsel should have

impeached her.

       On cross-examination, Hodges’s counsel questioned Solomon about her discovery of the

letter. Consistent with her testimony on direct, Solomon responded that the letter was not in an

envelope when she found it in her mailbox. The extent and method of cross-examination is a

tactical matter. Davis, 152 Wn.2d at 720. Hodges fails to show in the record that defense

counsel’s failure to impeach Solomon was not a legitimate trial tactic. Thus, Hodges fails to

show that counsel’s performance was deficient. Linville, 191 Wn.2d at 525. We hold that

Hodges has failed to demonstrate that counsel was ineffective by failing to impeach Solomon.


5
  Hodges also contends that counsel provided ineffective assistance by “stipulat[ing] to [its]
admission.” Br. of Appellant at 3. Hodges’s fails to cite to the record to support his claim. The
record demonstrates that counsel stipulated to the chain of custody of the letter. The record does
not show that counsel stipulated to the admission of the letter.



                                                17
No. 50582-7-II


       4. Closing Argument

       Hodges argues that defense counsel provided ineffective assistance by inviting the jury to

convict Hodges. Specifically, Hodges argues that counsel’s argument relieved “the State of its

burden to prove the essential fact of the signature and by conceding it was possible that the name

was Dean Solomon instead of ‘D’ followed by a scribble.” Br. of Appellant at 36 (citing 3 VRP

(Feb. 15, 2017) at 330).

       Counsel made a tactical decision to argue that the evidence was subject to reasonable

explanation, and that the State had not met its burden of proof. Hodges cannot show on the

record that counsel’s argument was not tactical, and thus cannot meet his burden to show that

counsel’s argument was not tactical. Linville, 191 Wn.2d at 525; Grier, 171 Wn.2d at 33. The

receipt was admitted into evidence, and the jury was able to evaluate the signature for itself. We

hold that Hodges fails to demonstrate that counsel’s argument was deficient or resulted in

prejudice.

       5. Same Criminal Conduct at Sentencing

       Hodges argues that counsel provided ineffective assistance by failing to argue that his

convictions for identity theft and possession of stolen property were the same criminal conduct.

Hodges’s claim fails because he cannot demonstrate prejudice.

       At sentencing, the offender score is calculated by adding a specified number of points for

each prior offense. RCW 9.94A.525.7. However, for purposes of this calculation, current

offenses are treated as prior convictions. RCW 9.94A.589(1)(a). Therefore, a sentencing court’s

determination that the crimes constitute the same criminal conduct alters the offender score and

affects the standard sentencing range. State v. Aldana Graciano, 176 Wn.2d 531, 535, 295 P.3d



                                                18
No. 50582-7-II


219 (2013). “Crimes constitute the ‘same criminal conduct’ when they ‘require the same

criminal intent, are committed at the same time and place, and involve the same victim.’”

Aldana Graciano, 176 Wn.2d at 536 (quoting RCW 9.94A.589(1)(a)). The defendant bears the

burden of proving that his or her multiple convictions constituted the same criminal conduct.

Aldana Graciano, 176 Wn.2d at 538-39.

       Counsel’s failure to make a same criminal conduct argument is prejudicial if the

defendant shows that the sentence would have differed had counsel made the argument. State v.

Munoz–Rivera, 190 Wn. App. 870, 887, 361 P.3d 182 (2015). Here, Hodges stipulated to his

prior offender score, and concedes that his offender score of 9+ would have been unchanged by a

finding of same criminal conduct. We hold that Hodges’s claim that counsel provided

ineffective assistance by failing to argue same criminal conduct fails because he cannot

demonstrate that counsel’s performance was prejudicial. Hendrickson, 129 Wn.2d at 78.

       Hodges contends that a finding of the same criminal conduct “would have at least been

supportive of counsel’s argument for an exceptional sentence downward.” Br. of Appellant at

39. But a showing of prejudice requires that the appellant demonstrate “a reasonable probability

that, but for counsel’s deficient performance, the outcome of the proceedings would have been

different.” Grier, 171 Wn.2d at 34 (citations omitted). Hodges has not shown that “supporting”

counsel’s argument for an exceptional sentence downward would have changed the outcome of

the proceedings.

       6. Sentencing

       Hodges argues that trial counsel provided ineffective assistance by failing to cite relevant

case law when requesting an exceptional downward sentence. Specifically, Hodges contends



                                                19
No. 50582-7-II


that counsel’s motion for an exceptional sentence “merely cite[d] basic statutory law and gave no

concrete basis for an exceptional sentence,” and that counsel should have made arguments based

on Hodges’s medical issues. Br. of Appellant at 40. Hodges’s argument fails.

        Counsel is deficient for failing to recognize and cite appropriate case law.

State v. Adamy, 151 Wn. App. 583, 588, 213 P.3d 627 (2009), as amended (Sept. 17, 2009).

Hodges requested an exceptional downward sentence, citing the standard provisions allowing a

court to consider an exceptional sentence RCW 9.94A.010, .535. At sentencing, Hodges argued

that an exceptional downward sentence was appropriate based on Hodges’s medical issues.

Hodges does not identify what relevant law counsel should have recognized, and thus fails to

meet his burden to demonstrate that counsel was deficient.

C.      Motion for New Trial

        Hodges contends that the trial court erred by denying his motion for a new trial.

Specifically, he argues that he demonstrated that he was entitled to a new trial based on (1)

ineffective assistance of counsel, and (2) inadequate police investigation. Hodges’s arguments

fail.

        We review a trial court’s decision whether or not to grant a new trial for an abuse of

discretion. State v. McKenzie, 157 Wn.2d 44, 51, 134 P.3d 221 (2006). We will not disturb the

trial court’s ruling absent a clear abuse of discretion. McKenzie, 157 Wn.2d at 51-52. A trial

court abuses its discretion when its decision is manifestly unreasonable or based on untenable

grounds, or when no reasonable judge would have reached the same decision. McKenzie, 157

Wn.2d at 52; State v. Larson, 160 Wn. App. 577, 586, 249 P.3d 669 (2011).




                                                 20
No. 50582-7-II


       A trial court may grant a new trial for any one of the following causes when it

affirmatively appears that a substantial right of the defendant was materially affected:

              (1) Receipt by the jury of any evidence, paper, document or book not
       allowed by the court;
              (2) Misconduct of the prosecution or jury;
              (3) Newly discovered evidence material for the defendant, which the
       defendant could not have discovered with reasonable diligence and produced at the
       trial;
              (4) Accident or surprise;
              (5) Irregularity in the proceedings of the court, jury or prosecution, or any
       order of court, or abuse of discretion, by which the defendant was prevented from
       having a fair trial;
              (6) Error of law occurring at the trial and objected to at the time by the
       defendant;
              (7) That the verdict or decision is contrary to law and the evidence;
              (8) That substantial justice has not been done.

CrR 7.5(a)(1)-(8).

       1. Ineffective Assistance of Counsel

       Ineffective assistance of counsel may constitute substantial injustice under CrR 7.5(a)(8).

State v. Dawkins, 71 Wn. App. 902, 906-07, 863 P.2d 124 (1993). However, as discussed above,

Hodges’s arguments that he received ineffective assistance of counsel fail. Accordingly, his

argument that the trial court erred by not granting a new trial based on ineffective assistance of

counsel also fails.

       2. Inadequate Police Investigation

       Hodges also argues that he was entitled to a new trial under CrR 7.5(a)(8) because the

State and the police department failed to thoroughly investigate the prior charges on Solomon’s

card. Specifically, Hodges claims that police should have investigated who used the card prior to

when he purportedly took possession. The investigation was critical, he contends, because it

would have provided information about how Clark acquired the card. And information about


                                                 21
No. 50582-7-II


how Clark acquired the card would have “constituted substantive evidence supporting the

defense theory at trial that Mr. Hodges was unaware that the card was stolen and unaware that its

use was not authorized by Ms. Solomon.” Br. of App. at 22. The State correctly notes that

Hodges was not charged with making the earlier transactions.

         To support his argument, Hodges cites State v. Jones, 25 Wn. App. 746, 751, 610 P.2d

934 (1980). But Jones is distinguishable. Jones held that it was error to prevent the defendant

from presenting evidence of the State’s witness’s bias against the defendant. 25 Wn. App. at

750-51. Jones does not stand for the proposition that law enforcement is required to investigate

uncharged events to provide support for the defendant’s theory.

         Regardless of what the police may have found had they investigated the earlier

transactions, the State does not have an obligation to search for exculpatory evidence, or to

expand the scope of a criminal investigation. State v. Armstrong, 188 Wn.2d 333, 345, 394 P.3d

373 (2017); State v. Judge, 100 Wn.2d 706, 717, 675 P.2d 219 (1984). Hodges has not

established that substantial justice was not done by law enforcement’s failure to investigate the

earlier transactions. The trial court’s decision to deny his motion for a new trial based on law

enforcement’s failure to investigate was not unreasonable or based on untenable grounds.

Hodges has not shown that the trial court abused its discretion by denying his motion for a new

trial.

D.       Cumulative Error

         Hodges argues that cumulative error and cumulative ineffective assistance of counsel

deprived him of a fair trial. The cumulative error doctrine applies when several errors occurred

at the trial level, none of which alone warrants reversal, but the combined errors effectively



                                                22
No. 50582-7-II


denied the defendant a fair trial. State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375

(2003). Hodges has not demonstrated that he received ineffective assistance of counsel, or that

any error occurred. Accordingly, the cumulative error doctrine does not apply.

       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.



                                                                    Worswick, J.
 We concur:



 Maxa, C.J.




 Glasgow




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