                                                                                           2014 NOV 13   1. 5U
                                                                                           STA \   9F

                                                                                           BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II

 STATE OF WASHINGTON,                                                           No. 44724 -0 -II


                                     Respondent,


            v.




 TERESA TEA MOODY,                                                        UNPUBLISHED OPINION


                                     Appellant.




           LEE, J. —   Teresa Tea Moody appeals her conviction of second degree assault, arguing that

the jury instruction defining "reckless" relieved the State of its burden to prove an essential element

of   the   offense.   She also argues that defense counsel provided ineffective assistance by failing to

object to the recklessness instruction. In a pro se statement of additional grounds ( SAG), Moody

raises additional allegations of ineffective assistance of counsel, including claims that defense

counsel was unqualified and that he withheld evidence, improperly advised her not to testify, did

not consult with her adequately, and told her that third degree assault was a strike offense.

            Based on the Supreme Court' s recent decision in State v. Johnson, 180 Wn.2d 295, 325

P. 3d 135 ( 2014),      we hold that the recklessness instruction was not erroneous and that defense

counsel' s failure to object to it was not deficient. The record does not support Moody' s additional

claims of     ineffective   assistance of counsel.   We   affirm   her   conviction.
No. 44724 -0 -II


                                                         FACTS


        Moody was driving with her friend, Juanqita Knox, when Moody rear -ended another car.

Moody and Knox had been arguing, and they continued to argue as Moody pulled into a nearby
                                                                        their                         Two witnesses
parking lot. When the two          women got out of        the   car,           argument escalated.




attempted   unsuccessfully to diffuse the         situation.     One of them saw Moody make a " tomahawk

motion" against Knox with a screwdriver, and both witnesses saw blood coming from Knox' s ear

and neck. 1 Report of Proceedings at 87.

        Knox told    a   responding     officer   that   Moody had       stabbed   her   with a screwdriver.   Moody

told another officer that Knox had attempted to bait her into fighting, but Moody did not remember

stabbing Knox with the screwdriver. Knox received stitches for the cut on her ear.

        The State charged Moody by amended information with second degree assault based on

assault with a deadly weapon or the reckless infliction of substantial bodily harm. At trial, several

witnesses testified about the fight and Knox' s injuries. Knox testified that she could not remember


talking to the police after the incident and that her injuries occurred when she struck herself in the

head with her keys.


        The trial court instructed the jury that to convict Moody of second degree assault, it had to

find that she recklessly inflicted substantial bodily harm on Knox or that she assaulted Knox with

a deadly weapon. The court defined " reckless" for the jury as follows:

               A person is reckless or acts recklessly when he or she knows of and
        disregards a substantial risk that a wrongful act may occur and this disregard is a
        gross deviation from conduct that a reasonable person would exercise in the same
        situation.



Clerk' s Papers ( CP)    at   86 ( Instruction 9).   Moody did not object to this instruction.




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No. 44724 -0 -II



         After the jury found Moody guilty as charged, the trial court imposed a standard range

sentence of 16 months, plus 12 months for the deadly weapon enhancement.

         Moody appeals her conviction.

                                                            ANALYSIS


A. INSTRUCTIONAL ERROR


         Moody contends that the trial court' s instruction defining " reckless" relieved the State of

its burden to    prove an essential element of the charged crime                   by stating that "[ a]   person is reckless


or acts recklessly when he or she knows of and disregards a substantial risk that a wrongful act

may   occur."     CP   at   86 ( emphasis     added).     Moody argues that the highlighted language was flawed

because it required only a risk of an undefined wrongful act rather than the risk of substantial

bodily harm identified in the charging document and the " to convict" instruction.

         In Johnson, the Supreme Court addressed and rejected an identical challenge to the same


instruction,    which       is based   on   the   pattern   jury instruction     that generally     defines "   reckless."   180


Wn.2d    at   305.   After observing that challenges to jury instructions are reviewed in the context of

the   jury    instructions     as   a whole,      the   court    held that the   reference   to "   a wrongful      act"   in the


definitional instruction was sufficient because the " to convict" instruction included the charge -


specific " substantial bodily harm" language. Johnson, 180 Wn.2d at 305 -07.

         Here, as in Johnson, the " to convict" instruction included the charge- specific language by

informing the jury that it had to find that Moody " recklessly inflicted substantial bodily harm" on

Knox.'       CP at 91; Johnson, 180 Wn.2d                   at   304 -05.   The instruction that separately provided a




1 The alternative means of assault with a deadly weapon is not at issue.


                                                                    3
No. 44724 -0 -II



generic definition of "reckless" did not relieve the State of its burden of proof. See Johnson, 180

Wn.2d     at   306.    Consequently, we reject Moody' s challenge to the definitional instruction as well
                                                   2
as   the State'   s   harmless   error analysis.       Having rejected this claim of error, we also reject Moody' s

alternative claim of ineffective assistance of counsel based on defense counsel' s failure to object

to the definitional instruction. We turn to the remaining claims of ineffective assistance of counsel

that Moody raises in her SAG.

B. SAG


          Moody asserts in her SAG that she received ineffective assistance of counsel because her

attorney was unqualified, withheld evidence, improperly advised her not to testify, did not consult

with her adequately, and told her that third degree assault is a strike offense.

          Whether a defendant received ineffective assistance of counsel is a mixed question of law


and fact that we review de novo. State v. McLean, 178 Wn. App. 236, 246, 313 P.3d 1181 ( 2013),

review    denied, 179 Wn.2d 1026 ( 2014). To prove ineffective assistance, a defendant must show


that her    counsel' s performance was             deficient   and   that the   deficiency   was prejudicial.   State v.


Hendrickson, 129 Wn.2d 61, 77 -78, 917 P.2d 563 ( 1996).

          Counsel' s performance is deficient if it falls below an objective standard of reasonableness


and cannot be characterized as legitimate trial strategy or tactics. State v. Kyllo, 166 Wn.2d 856,

862 -63, 215 P. 3d 177 ( 2009).            Prejudice occurs when there is a reasonable probability that the

trial' s result would have differed had the deficient performance not occurred. Hendrickson, 129


Wn.2d at 78. A failure to satisfy either prong is fatal to a claim of ineffective assistance of counsel.

McLean, 178 Wn. App. at 246.



2 The parties submitted their briefing before the Supreme Court decided Johnson.

                                                                4
No. 44724 -0 -II



        The record shows that Moody' s trial attorney made appropriate evidentiary objections,

objected to the amended information, moved to exclude Knox' s incriminating statements to the

arresting officers, and moved to dismiss the case for insufficient evidence. Defense counsel also

conducted recross and redirect examinations of several witnesses.         The record does not support


Moody' s claim that her attorney was unqualified. Nor does it show that counsel withheld evidence,

including a possible video of the altercation. If Moody has support for this claim, she must submit

it with a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 338 n.5, 899 P. 2d

1251 ( 1995) ( matters outside record must be raised in personal restraint petition).


           Moody also complains that her attorney advised her not to testify " because I was pretty."

SAG   at   1.   An attorney' s recommendation that a defendant not testify is a matter of trial strategy

that does not support a claim of deficient performance. State v. King, 24 Wn. App. 495, 499, 601

P. 2d 982 ( 1979).    Moody does not explain what she would have testified to had she been called as

a witness, and in the absence of a showing that her testimony would have furthered her defense,

we presume that counsel' s decision to recommend that she not testify was tactical. Moody claims

further that her attorney ignored her advice and did not consult with her adequately, but her failure

to explain the advice or additional information she might have provided undermines any claim of

prejudice.      Finally, Moody does not explain the context in which her attorney told her that third

degree assault is a strike offense, and she again does not show prejudice resulting from this

misinformation.       RCW 9. 94A.030( 32), ( 37).    Consequently, we reject her claim of ineffective

assistance of counsel.
No. 44724 -0 -II



        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.




 We concur:




                    Worswick, P. J.




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