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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II

STATE OF WASHINGTON,                                                                    No. 43108 -4 -II


                                           Respondent,


         V.




BRYAN L. HART,                                                             PUBLISHED IN PART OPINION


                                           a

         HUNT, J. —              Bryan Hart appeals his jury convictions for second degree assault and

misdemeanor            harassment (       domestic       violence);   he    also      appeals   the     firearm sentencing

enhancement           on   his   assault conviction.      He argues that ( 1) because the trial court erroneously

allowed the State to cross -examine him about topics that violated his Fifth Amendment rights,


his harassment conviction violated his right to free speech, (2) -the trial Courtviblated his rig t to
                                             -

a public      trial   when       it met   with counsel     twice in   camera    to discuss      jury    instructions; ( 3) the


evidence was insufficient to support his firearm sentencing enhancement special verdict and his

second   degree       assault conviction; (      4) the trial court erred when it failed to instruct the jury about

definitions relating to the firearm enhancement and the harassment charge; and ( 5) he received

ineffective assistance when his counsel failed to make certain evidentiary objections and failed to

raise a mental        health defense.          Holding   that the State    fails to   overcome    the   prejudice presumed
No. 43108 -4 -II



from its unconstitutional cross -examination of Hart, we reverse his harassment conviction, but

we affirm Hart' s second degree assault conviction and firearm sentencing enhancement.

                                                           FACTS


                                                          I. CRIMES


         Jennifer Hargrove reported to Hoquiam Police Department Officer Cody Blodgett

 concern"       that her ex- boyfriend, Hart, had sent her several threatening text messages that

evening.      Report   of   Proceedings ( RP) ( Jan. 11, 2012)            at       49.   These text messages included the


following statements:

         You          leave town today, right f*ck now before I find you....
                 should                                                       You will
         learn respect if you learn nothing  else from me.. . .   No, you or him don' t
         understand respect.          I' m fine   being   in   prison.   It'   s   my destiny....    If my d *ck is
         f*cked up,      you' re —you' re next, stripper whore....                   Don' t worry, slut. I' m going
         to f*ck you up and him. No, this is what I was born to do. I kill people. I' m tired
         of your lies. This is what I was born for.


RP ( Jan. 11, 2012) at 40 -42. The police decided to contact Hart.


         Because of a previous firearm incident at Hart' s residence, the police suspected that he

might    again    have      a   firearm.    Blodgett_ arrived at Hart' s house at 3: 00 the morning after

Hargrove' s report, accompanied by four other uniformed officers positioned in a perimeter

around    the   residence.       Blodgett knocked on the door, announced that he was with the Hoquiam


Police Department,          and addressed      Hart   by his first   name.          Hart opened the door, acknowledged


the officer' s    presence,      and shut   the door.     Minutes later, the front door opened again and Hart


walked out with a small            black    pistol   in his hand, scanning the             area.   Blodgett ordered Hart to


drop    the   gun.   Hart aimed the gun in the officers' direction, abruptly retreated back into the

house,   and     slammed        the door.    The police negotiated with Hart without further confrontation




                                                                 2
No. 43108 -4 -
             II




until around 10: 45 a.m., when they finally persuaded him to leave his residence and arrested him.

Inside Hart' s residence, the police found a Glock 17 9 mm handgun lying on the couch next to

Hart'   s   front door, two        fully   loaded    magazines      for the firearm        on   the floor,   and " a couple of




bullets loose       on   the   floor." RP ( Jan. 11, 2012, afternoon) at 45.


                                                          II. PROCEDURE


             The State charged Hart with second degree assault with a firearm enhancement and

misdemeanor         harassment ( domestic           violence).     At the jury trial, the officers testified to the facts

previously described.             Sergeant Shane Krohn further testified that Hart' s handgun, seized from

his home, " looks to be in very working                     order,"    and   that it did     not "   look to be damaged or


anything."       RP ( Jan. 11, 2012,        afternoon) at    43.   Hart did not object to the State' s offer of the gun

or the magazines into evidence.


             Hargrove testified that Hart had sent her the text messages but that she had not been


concerned for her safety or the safety of others; rather, she " was more concerned about how he

was     feeling."    RP ( Jan. 11, 2012)       at   43.   When the State asked. if Hart had " ever done anything in

 her]       presence     to   make [   her] believe that he        would     carry   out   these threats"     in the texts, she


responded, "      No." RP ( Jan. 11, 2012)           at   45. She also confirmed that she had written and signed a


police statement under penalty of perjury that " I never felt I was ever in any danger and still

don' t." RP ( Jan. 11, 2012, afternoon) at 51.


             On direct examination, Hart testified about his interactions with the police and about the


assault charge; he did not, however, testify about the texts he had allegedly sent to Hargrove.

When the State attempted to cross -examine Hart about the content of these text messages, he




                                                                   3
No. 43108 -4 -II



objected    that these   questions went         beyond the       scope of    his direct    examination.'      The trial court


overruled the objection.


           The State then cross -examined Hart with repeated pointed questions about the texts and


other personal     subjects,   forcing     Hart to divulge            specific   incriminating information:        The State


elicited   from Hart ( 1) that he " probably"            or " might     have"    sent   the texts, but   was not certain; (   2)

                                                texts2


details    about   the meaning      of    the             and    about     his relationship      with    Hargrove;   and (    3)


admissions     that the texts "   could   be taken"      as "   highly threatening," that he was " not joking" when

he sent them, and that he had been taking " a lot of medication" and was drinking at the time. RP

 Jan. 11, 2012,     afternoon) at    65 -68.      The trial court admitted the content of at least one of the


texts, exhibit 19.




 Hart did not object on Fifth Amendment grounds.


2 The State cross -examined Hart about the content of the texts on Hargrove' s phone:
        STATE]: So King of Hearts, what does that mean?
        HART]: It' s just a pet name we call each other, because my last name is Hart,

       and she' s the queen of my heart.

            STATE]:      And you' ve set up your phone so that that would be the salutation on
           all your text messages?
            HART]: Correct.
            STATE]:      So that text message is from your phone?
            HART]:    Yeah, possibly.
            STATE]:    I' m handing you [ exhibit] 26. Did you send that text?
            HART]: Again, I' m not sure.
            STATE]:      But it also has the King of Hearts salutation, right?
            HART]: Correct.


            STATE]:    Handing you [ Exhibit] 25, did you send that?
            HART] :   Yeah, I probably did.
RP ( Jan. 11, 2012, afternoon) at 65 -66.



                                                                  4
No. 43108 -4 -II




               In its closing argument to the jury, the State noted Hart' s cross -examination admission

that      he had           sent   the text    messages.      The jury convicted Hart on both the assault and the

harassment counts.


               At sentencing, Hart' s counsel stated that although initially he had been concerned that

Hart had potential mental health issues,


               things didn' t go in that direction because at the same time there was never really
               any     question     in my    mind as   to Mr. Hart'      s       competency to    assist   in his defense. So
               that'   s   just   not   the way the defense strategy                 went    in this   case.   I do still have
               concerns about that, but I' ve spoken with my client and with his mother, and I' m
               not aware of any actual diagnosis that has been made.

RP ( Jan. 30, 2012)                at   74 -75.   The trial court sentenced Hart to 4 months of confinement for the

assault conviction, with an additional consecutive 36 months for the firearm enhancement, and


365 days for the harassment conviction to run concurrently with the 40 -month enhanced assault

sentence. Hart appeals both convictions and the firearm sentencing enhancement for the assault.

                                                                 ANALYSIS


                     I. SCOPE OF CROSS -EXAMINATION; REVERSAL OF HARASSMENT CONVICTION


               Hart argues that ( 1) the trial court erred when it permitted the State to cross -examine him

about his texts to Hargrove because this topic was outside the scope of his direct examination;

and ( 2) this error constitutes grounds for reversal because it violated his right against self-

incrimination under the Fifth Amendment to the United States Constitution and article I, section

9        of   the Washington State Constitution.                   U. S. CONST.            amend.   V; WASH. CONST.       art.   I, § 9;


Malloy          v.   Hogan, 378 U.S. 1, 3, 84 S. Ct. 1489, 12 L. Ed. 2d 653 ( 1964).                           The State counters that


    1)    the trial court was acting within its discretion when it permitted cross -examination into

additional            matters      outside    the   scope   of   Hart'   s       direct   examination; (   2) Hart' s threatening text



                                                                             5
No. 43108 -4 -II



messages to Hargrove were relevant to disprove Hart' s claim that he did not know the purpose of

the    police      visit   to his house,   which    precipitated         the    assault     charge;    and (   3)   any error was


harmless. We hold that this extended cross -examination of Hart was constitutional error and that

                                                                 3
it   was not    harmless beyond        a reasonable     doubt.


                                                  A. Standard of Review


           We review a trial court' s ruling on the scope of cross -examination for abuse of discretion.

State v. Berlin, 167 Wn. App. 113, 127, 271 P. 3d 400 ( citing State v. Fisher, 165 Wn.2d 727,

752, 202 P. 3d 937 ( 2009)),            review   denied, 174 Wn.2d 1009 ( 2012).                 A court necessarily abuses

its discretion if it denies          an accused   his   constitutional rights.            State v. Iniguez, 167 Wn.2d 273,


280, 217 P. 3d 768 ( 2009) (           quoting State v. Perez, 137 Wn. App. 97, 105, 151 P. 3d 249 ( 2007)).

Whether a defendant irrevocably waived his Fifth Amendment privilege not to be a witness

against himself by testifying on his own behalf is a question of law, we review de. novo. State v.

Epefanio, 156 Wn. App. 378, 388, 234 P. 3d 253 ( citing State v. Bankes, 114 Wn. App. 280, 287,

57 P. 3d 284 ( 2002)),         review   denied, 170 Wn.2d 1011 ( 2010); Iniguez, 167 Wn.2d at 280.


           It is   a   basic tenet   of our system of justice        that "[   n] o person shall be compelled in any case

to    give evidence against,         himself."    WASH. CONST.           art.   I, § 9; see also U.S. CONST. amend. V.


Nevertheless, "`           when an accused voluntarily takes the stand he waives his constitutional rights

     against self incrimination] as to all matters concerning which cross -examination is otherwise
                  -




 3 The State does not argue that Hart' s failure to object to his cross -examination on Fifth
 Amendment             grounds should    bar   our consideration of            this issue   under     RAP 2. 5(     a).   Instead, the
 State addresses Hart' s Fifth Amendment argument on the merits, and so do we.


                                                                     0
No. 43108 -4 -II




normally    proper. "'    State   v.   Robideau, 70 Wn.2d 994, 1001, 425 P. 2d 880 ( 1967) (                      quoting Jones

v.   United States, 296 F.2d 398, 404 ( 1961)).                     But such waiver extends " only to cross -examination

which ...    is limited to the     scope      of the defendant' s direct testimony."           Epefanio, 156 Wn. App. at

388 ( citing Robideau, 70 Wn.2d               at    1001) (   emphasis added).




          Hart' s testimony on direct examination was limited to the facts underlying the assault

charge.     But over his objection, the trial court allowed the State to cross -examine Hart about his

text   messages   to Hargrove, the           subject of       his   separate   harassment   charge.    Washington Evidence


Rule ( ER) 611( b),       which        governs        cross -examination        of witnesses    at    trial,   provides, "   Cross


examination should be limited to the subject matter of the direct examination and matters

affecting the credibility        of    the   witness." (      Emphasis      added.)   In our view, the State' s attempt to


relate its questions about the text messages to the assault charge is too attenuated to justify the

trial court' s expansion of cross -examination.



          On the contrary, it appears from the record that Hart chose to exercise his constitutional

right to remain silent about the harassment charge and, therefore, strategically refrained from

addressing the text            messages       during     direct       examination.     Historically, the purpose of the

accused' s constitutional right to remain silent has been to protect him or her " from compulsory

incrimination through his             own    testimony        or personal records."      State v. Johnston, 27 Wn. App.

73, 75, 615 P. 2d 534 ( 1980) (          citing Bellis v. United States, 417 U.S. 85, 88, 94 S. Ct. 2179, 40 L.

Ed. 2d 678 ( 1974)).           We disagree with the State' s claim that the text messages were relevant to


the    assault charge (   to   show     Hart'   s state of mind when police arrived),            because Hart' s intent was


not relevant to prove second degree assault, charged as having been committed " with a deadly

weapon."       RCW 9A. 36. 021( 1)(           c).    We hold that the trial court thwarted Hart' s exercise of his




                                                                       7
No. 43108 -4 -II



constitutional right against self -
                                  incrimination on the harassment charge when it allowed the


State' s expanded cross -examination to elicit the harassing content of Hart' s text messages and

his admission that he had sent them to Hargrove.


                                                    B. Error not Harmless


          Both our state and federal constitutions prohibit the State from using a defendant' s right

to   remain silent     to   prove    the State'   s case.    U. S. CONS`r.       amend.    V; WASH. CONS`r.    art.   I, § 9; see


also   Malloy,   378 U. S.      at   3.   Error arising from a Fifth Amendment violation is a constitutional

error, which we presume to be prejudicial; we will affirm only if the State shows that the error

was    harmless beyond          a reasonable       doubt.        State v. Levy, 156 Wn.2d 709, 732, 132 P. 3d 1076

 2006); State     v.    Guloy,       104 Wn.2d 412, 425, 705 P. 2d 1182 ( 1985),                   cent. denied, Guloy v

Washington, 475 U. S. 1020, 106 S. Ct. 1208, 89 L. Ed. 2d. 321 ( 1986).                             Constitutional error is


harmless if we are " convinced beyond a reasonable doubt that any reasonable jury would have

reached    the   same       result   in the   absence       of   the   error."    Guloy,    104 Wn.2d   at   425.     Under the


circumstances of this case, we are not persuaded beyond a reasonable doubt that this error was


harmless.


          As we have already explained, the State' s cross -examination of Hart about a separately

charged crime that he did not address during direct examination violated his constitutional right

to remain silent; it also impermissibly relieved the State of its burden to prove all elements of a

charged    crime     beyond      a reasonable        doubt.       State v. Vasquez, 178 Wn.2d 1, 7, 309 P. 3d 318


 2013).    We acknowledge that, by the time Hart testified on direct, the jury had already heard the

State' s evidence about the content of his texts, the facts underlying the harassment charge, and

Hargrove' s denial that she felt threatened by these texts or was concerned that Hart would harm



                                                                       M.
No. 43108 -4 -II



       4
                                                                                                           the harassment
                                                                                                                               charges




her.         And the State'       s   only   evidence      of   the   critical "    threat"   element of




was Blodgett' s testimony that Hargrove " appeared to be concerned over the incident" when she

had    initially       reported   the texts.       RP ( Jan. 11, 2012)         at   48.   Consequently the State' s evidence of

this       critical   harassment       element—     that the defendant placed " the person threatened in reasonable


                                       be                  6
fear that the threat          will          carried out "       was lacking at worst and weak at best before the State

cross -examined Hart.


              But the State' s cross -examination of Hart about facts underlying the harassment charge

bolstered the State'          s weak case.         Hart variably        stated     that ( 1) he did   not send   the texts; ( 2)   he did


not remember             sending the texts; ( 3)         he had been angry and on medication when he sent the texts;

and ( 4) although the texts " could be taken" as " highly threatening" and he had not been joking

when he sent them, Hargrove knew he would never hurt her. RP ( Jan. 11, 2012, afternoon) at 67.


And in closing argument, the State used Hart' s cross -examination " admi[ ssions] that [ the] text

messages were             from him"          and   that he had        sent   them "   knowingly."       RP ( Jan. 12, 2012) at 69.


Accordingly, we reverse Hart' s harassment conviction.




4
    The State had even attempted to impeach Hargrove with her prior inconsistent statements to the
police when she appeared to recant them during trial.
s
    RCW 9A.46. 020( 1)                provides  a] person is guilty of harassment if.
                                                 that "[
                a)    Without lawful authority, the person knowingly threatens:
                i)    To cause bodily injury immediately or in the future to the person threatened or
              to any     other person; ...         and

                b)     The person by words or conduct places the person threatened in reasonable
              fear that the threat will be carried out.
    Emphasis added.)

6
    RCW 9A.46. 020( 1)( b).
No. 43108 -4 -II



          A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06.040, it is so ordered.


                                                        ADDITIONAL FACTS


          After the close of evidence, the trial court announced it would assemble the jury

instructions,          excused       the    jury,   and     directed          counsel   to   appear    in   chambers   for " a formal


discussion regarding              jury     instructions,     what format we             intend to   use."   RP ( Jan. 11, 2012) at 70


 emphasis added).              After this recess, with counsel present in the courtroom, the trial court stated:


                           Now,     gentlemen,      I' ve   given you and          I' ve been editing in the back ...       a


          very      rough      draft   of proposed          jury   instructions.        I had hoped we could get this to
          the jury today, but I now have another instruction submitted, and I don' t think
          we' re going to get to the jury today.

                         U] nless we have something further, I' m going to go back and go to work
           on    the   jury instructions. So if you gentlemen want to take a look at what you' ve
           got,    I' ll   see you ...      tomorrow morning.

RP ( Jan. 11, 2012)            at   71 -72.    The next morning, outside the jury' s presence, the trial court asked

counsel whether they had any exceptions to " the _
                                                 proposed_instruction that [ the court] intend[ ed

to]   giv[ e]    to the    jury."    RP ( Jan. 12, 2012)           at   61.    Both counsel responded that they did not.

           The trial court gave the following " to convict" jury instruction ( 14) for the harassment

charge:




           To convict the [ sic] Bryan Hart of the crime of harassment, each of the following
           five elements of the crime must be proved beyond a reasonable doubt:
            1)     That on or about October 4, 2011, Mr. Bryan Hart knowingly threatened to
           cause bodily injury immediately or in the future to Jennifer Hargrove, or
            2)       That the words or conduct of Bryan Hart placed Jennifer Hargrove in
           reasonable fear that the threat would be carried out;
            3)       That Bryan Hart knew that his words or conduct would place Jennifer
           Hargrove in reasonable fear that the threat to kill would be carried out;




                                                                              10
    No. 43108 -4 -II



               4)   That Mr. Hart acted without lawful authority; and
               5)   That the threat was made or received in the State of Washington.


    Supplemental Clerk' s Papers at 20.

                                                               I. PUBLIC TRIAL


             Hart argues that the trial court violated his right and the public' s right to an open trial


    when the trial court met with counsel in camera to discuss the jury instructions without first
                                               7
    making the      required    Bone -Club         findings.      Because Hart fails to show that these jury instruction

    discussions were subject to the public trial right, his argument fails.


             Before determining whether the trial court violated Hart' s constitutional right to a public

    trial, we " first consider whether the .proceeding at issue implicates the public trial right, thereby

    constituting     a closure    at all."        State   v.   Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012).            We


    determine "     whether     the   public      trial   right attaches     to a    particular   proceeding"   by applying the

     experience and logic test" the United States Supreme Court formulated in Press -
                                                                                    Enterprise Co.


    v.   Superior Court, 478 U. S.           1,    8 - 10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (              1986) ( Press II), to


f   determine whether the proceeding at issue here " implicate[ d] the core values the public trial right

    serves."    Sublett, 176 Wn.2d at 72 -73.


             The first    part    of    the test, the          experience    prong,    asks "   whether the place and
             process    have    historically       been    open    to the    press   and general public."       The logic
             prong     asks "    whether public access plays a significant positive role in the
             functioning    of    the   particular process         in   question."    If the answer to both is yes, the
             public trial right attaches and [ the trial court must consider]. the Waller or Bone -
               Club factors ...       before the proceeding may be closed to the public.




    7 State v. Bone -Club, 128 Wn.2d 254, 906 P.2d 325 ( 1995).


                                                                        11
No. 43108 -4 -II



Sublett, 176 Wn.2d at 73 ( discussing Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed.

2d 31 ( 1984),          and   State      v.   Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995)) (                emphasis added)



 footnote    and citations omitted) (                quoting Press II, 478 U.S. at 7 -8).

           Applying both prongs of this experience and logic test in Sublett, our Supreme Court has

ruled that a jury' s question about an instruction was " similar in nature to proceedings regarding

jury    instructions in        general"        and   that "[    h] istorically, such proceedings have not necessarily been
                                                      8
conducted      in   an open courtroom."                   Sublett, 176 Wn.2d          at   75.   Here, Hart has not shown that the


trial   court' s   in   camera       discussion      of   the   jury   instructions' "     format" was the type of proceeding

historically        conducted            in   open    public      court, - or   that public access would have played a


  significant positive role "'                  in this   particular      proceeding.        Sublett, 176 Wn.2d    at   73 ( quoting


Press II, 478 U. S.           at   8).   Nor are we independently aware of any such authority. On the contrary,

applying the "          experience and           logic test," Press II, 478 U. S. at 9, we hold that Hart fails to show


that the trial court violated his right or the public' s right to an open and public trial.




8 The court continued:
       Jury instructions                 are covered       by   CrR 6. 15. Proposed instructions are submitted in
           writing       at   least three days before the                start of   trial.   CrR 6. 15( a).   We are aware
           that, quite often, counsel discuss the instructions with the court during an informal
           proceeding. But before instructing the jury, counsel is to be given the opportunity
           to object in the absence of the jury.         CrR 6. 15( c).  Any objections to the
           instructions, as well as the grounds for the objections, must be put in the record to
           preserve review.

Sublett, 176 Wn.2d  at 75 -76 ( citing Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 162 -63,

795 P. 2d 1143 ( 1990); Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wn. App. 609,
615 -17, 1 P. 2d 579 ( 2000)).



                                                                          12
No. 43108 -4 -II



                                                           II. FIREARM


                                     A. Sufficiency of Operability Evidence

       Hart next argues that the State failed to prove that the firearm he used was operable for


purposes of supporting both his second degree assault conviction and his firearm sentencing

enhancement. These arguments fail.


                                      1.    Second degree assaultwith firearm


       Because Hart' s second degree assault conviction was based on a threat with a handgun,

the State did not need to prove that the handgun was operable; instead, the State needed to prove


only that Hart used a handgun to threaten another. In re Pers. Restraint ofRivera, 152 Wn. App.

794, 803, 218 P. 3d 638 ( 2009),                 aff'd by In re Pers. Restraint of Jackson, 175 Wn.2d 155, 283

P. 3d 1089 ( 2012).          Viewing the evidence in the light most favorable to the State, we hold that it

was sufficient for a rational trier of fact to find the essential elements of second degree assault

proven beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 ( 1979) (         citing Johnson v. Louisiana, 406 U. S. 356, 362, 92 S. Ct. 1620, 32 L. Ed. 2d

152 ( 1972)).


                                           2. Firearm sentencing enhancement

        Hart similarly argues that the State failed to prove that the firearm he used was operable

for purposes of his firearm sentencing enhancement. But Hart never objected or disputed at trial

that the firearm        he   used was operable.           Moreover, he testified that he answered the door while


holding    the   gun,   from    which      the   jury   could   infer the firearm'   s   operability. State v. Kruger, 116


Wn. App. 685, 690, 67 P. 3d 1147 ( citing State v. Lawson, 37 Wn. App. 539, 543, 681 P. 2d 867

 1984)),    review      denied, 150 Wn.2d 1024 ( 2003).                    In addition, Krohn testified that while




                                                                   13
No. 43108 -4 -II




searching Hart' s residence, the police found a Glock 17 9 mm handgun lying on the couch next

to Hart' s front door, two fully loaded magazines for the firearm, and " a couple of bullets loose

on    the floor.     RP ( Jan. 11, 2012,             afternoon)      at      45.     Again, the jury could infer the firearm' s

operability from these facts.              Krohn further stated that the gun appeared operable, that it


    look[ ed] to be in very working        order," and           that it     did   not "   look to be damaged       or   anything."   RP


 Jan. 11, 2012,      afternoon) at      43. We hold that there was sufficient evidence for a rational trier of


fact to conclude that Hart displayed an operable firearm.


                                                       B. Jury Instructions

            Hart also argues that the trial court improperly relieved the State of its burden of proving

the firearm enhancement because the court did not provide the jury with an appropriate

instruction for      finding   that Hart   was armed with a                  firearm. 9        Again, Hart did not object below to

the   absence of a     jury    instruction     defining " armed"              or "   firearm "; nor did he ask the trial court to


include definitions for these terms. Because Hart failed to preserve this alleged error for appeal,


he    must    meet   the RAP 2. 5(       a)(   3)    manifest constitutional error exception in order for us to


consider this issue for the first time-on-appeal. In this Hart also fails.




9
    Hart    also challenges      the adequacy         of   the   jury   instructions for the harassment             charge.     Because
we reverse his harassment conviction based on the State' s unconstitutional cross -examination,
we     do   not address   this   instruction        challenge.      For the same reason, we do not reach Hart' s First
Amendment challenge to his harassment conviction.

io
     Hart argues that the trial court' s failure to submit an instruction on these definitions to the jury
was a constitutional error, which                   he may       challenge         for   the   first time   on appeal.    State v. Scott,
110 Wn.2d 682, 684, 757 P. 2d 492 ( 1988) ( citing RAP 2. 5(                               a)(   3)).   But as our Supreme Court has
previously       explained,      this   narrow "       constitutional error exception is not intended to afford
criminal defendants a means for obtaining new trials whenever they can ` identify a constitutional
issue not litigated below."' Scott, 110 Wn.2d at 687 ( quoting State v. Valladares, 31 Wn. App.
63, 76, 639 P. 2d 813 ( 1982), affirmed in part and reversed in part, 99 Wn.2d 663 ( 1983)).



                                                                        14
No. 43108 -4 -II



            Merely characterizing an issue as being of constitutional magnitude does not show that

the    alleged error "    is truly       of constitutional magnitude."     See, e. g., State v. Scott, 110 Wn.2d 682,

688, 757 P. 2d 492 ( 1988).                The trial court need instruct the jury only as to each element of the

charged offense;         its failure to "` define further one of those elements is not within the ambit of the


constitutional rule. "'        Scott, 110 Wn.2d at 689 ( quoting State v. Ng, 110 Wn.2d 32, 44, 750 P. 2d

632 ( 1988) (        quoting State v. Pawling, 23 Wn. App. 226, 597 P. 2d 1367, review denied, 92

Wn,2d 1035 ( 1979)).                Moreover, the terms "     armed"       and "   firearm" have common meanings,


which the jury could readily apply to the elements of a firearm enhancement special verdict. See

Scott, 110 Wn.2d at 692. 11 Because this claimed error was not of constitutional magnitude, we
                                     12
do    not   further   consider     it.


                                           Ill. EFFECTIVE ASSISTANCE OF COUNSEL


              Finally, Hart argues that he received ineffective assistance when his defense counsel ( 1)

failed to seek a limiting instruction or to object to police officer testimony about an interview

with Hargrove, and ( 2) failed to call experts to investigate Hart' s mental health. Hart' s argument

fails.




11
      State   v.   Eckenrode, 159 Wn. 2d 488, 494, 150 P. 3d 1116 ( 2007) ( evidence sufficient to uphold
verdict       despite   court' s   failure to define " armed,"   "[   a] s long as any rational trier of fact could
have found that [ the defendant] was armed ").


12 Even if we would have considered it error for the trial court not to instruct on the definitions,
such error would have been harmless because any rational juror would find beyond a reasonable
doubt that Hart was armed with an operable 9 mm handgun during the crime. Moreover, in
Hart' s own statement to police on October 6, 2011, he admitted to aiming his handgun out the
door at two officers.



                                                               15
No. 43108 -4 -II



             Our "   scrutiny of defense counsel' s performance is highly deferential and employs a

strong   presumption of reasonableness."            State v. Humphries, 170 Wn. App. 777, 797, 285 P. 3d

917 ( 2012) (        citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d
674 ( 1984);         State   v.   McFarland, 127 Wn.2d 322, 335 -36, 899 P. 2d 1251 ( 1995)),             review



granted,      177 Wn.2d 1007 ( 2013).        An appellant claiming ineffective assistance of counsel must

show, first, that counsel' s performance fell below an objective standard of reasonableness, and

second, "     a reasonable probability that the outcome of the trial would have been different absent

counsel' s     deficient     performance."   Humphries, 170 Wn. App. at 797 ( citing Strickland, 466 U. S.

at   694; State       v.   Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987)).             Failure to meet either


prong    of    this test defeats a showing     of   ineffective   assistance of counsel.    Humphries, 170 Wn.


App.    at   797 ( citing Strickland, 466 U. S.     at   697). " If trial counsel's conduct can be characterized


as legitimate trial strategy or tactics, it cannot serve as a basis for a claim that the defendant

received      ineffective     assistance of counsel."     State v. McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280


 2002) ( citing       State v. Adams, 91 Wn.2d 86, 90, 586 P.2d 1168 ( 1978)).

             A. Failure To Request Limiting Instruction and To Object to Hearsay Testimony

             Here, defense counsel' s decision not to object to and not to request a limiting instruction

for Blodgett' s testimony could have been legitimate trial strategy to avoid reemphasizing

damaging evidence that Hart sent threatening texts and that Hargrove had expressed concern

about    the    incident to Blodgett.        Relative to his concern about reemphasizing negative facts,

counsel may also have believed that such an objection and limiting instruction would have




                                                             16
No. 43108 -4 -II



                                        13
produced    little if any benefit            for Hart' s case in light of the texts' contents having already been

admitted    into     evidence.       We hold that defense counsel' s conduct did not fall below an objective


standard of reasonableness.                 Because Hart fails to meet the deficient performance prong of the
                                                                                                                14
ineffective    assistance of counsel           test,   we    do   not address        the   prejudice   prong.


                                     B. Failure To Pursue Mental Health Defense


          Hart also contends that his defense counsel should have investigated Hart' s mental


health,   either     to   raise a   defense    at   trial   or   to   present a     mitigating factor     at   sentencing.       But Hart


points to no evidence in the record before us on appeal that he had mental health issues that

would     have      affected   his   competence        to    stand     trial   or   his   sentence.    On the contrary, during the

sentencing hearing, Hart' s counsel stated that he had decided not to pursue a mental health

defense because " there was never really any question in my mind as to Mr. Hart' s competency to

assist   in his defense. So that' s just             not    the way the defense strategy               went   in this   case."   RP ( Jan.


30, 2012)      at    74.    This comment shows that, as a matter of deliberate trial strategy, defense

counsel had considered and rejected a diminished capacity defense, primarily because there was




13 Although Hart now contends that Blodgett' s testimony about Hargrove' s statements was
inadmissible hearsay, the officer' s testimony that Hargrove " appeared [ to him] to be concerned
over the incident" would arguably have been admissible under the ER 803 hearsay exception as a
 statement of         the declarant'    s    then existing        state of mind."           ER 803( a)( 3).      See Humphries, 170
Wn.    App.    at   797;   see also   State    v.   Dow, 162 Wn.           App.      324, 335 -37, 253 P. 3d 476 ( 2011) ( failure
to   request   limiting      instruction     was     legitimate trial tactic);
                                                                         State v. Yarbrough, 151 Wn. App. 66,
90 -91, 210 P. 3d 1029 ( 2009) ( same);             State v. Price, 126 Wn. App. 617, 649, 109 P. 3d 27, review
denied, 155 Wn.2d 1018 ( 2005);                 State v. Barragan, 102 Wn. App. 754, 762, 9 P. 3d 942 ( 2000);
State v. Donald, 68 Wn. App. 543, 551, 844 P. 2d 447, review denied, 121 Wn.2d 1024 ( 1993).

14 We also note that because we reverse Hart' s harassment conviction on other grounds, this
portion of Hart' s ineffective assistance challenge does not affect our holding.


                                                                        17
No. 43108 -4 -II



                                                                                     15
insufficient      evidence   that Hart had   a   diminished    mental    capacity.        Again, Hart does not


overcome     the strong      presumption   that defense    counsel' s   conduct was       not   deficient.   State v.


Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004) (               citing McFarland, 127 Wn.2d at 335).

Accordingly, Hart' s claim of ineffective assistance of counsel fails.

          We affirm Hart' s second degree assault conviction and firearm sentencing enhancement,

but we reverse his harassment conviction..




                                                           Hunt, J.
We concur:




Worswick, C. J.




             J.




15
     See State    v.   McCreven, 170 Wn.    App.   444, 483 -84, 284 P. 3d 793 ( 2012), review denied, 176
Wn. 2d 1015 ( 2013) (        rejecting defendant' s claim that counsel failed to investigate his mental
health where counsel testified that he never had concerns about his client' s competence to stand
trial).




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