      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


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STATE OF WASHINGTON,                                  No. 71562-3-                CS    too
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                     Respondent,                      DIVISION ONE                cz
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DAVID ANTHONY JOHNSON,                                UNPUBLISHED                 V?    cr> to
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                     Appellant.                       FILED: July 27. 2015




       Cox, J. — David Johnson appeals his conviction of 36 counts of first and

second degree theft, challenging the sufficiency of the evidence supporting 5

counts and seeking a new trial on the remaining convictions. The State

presented sufficient evidence to support the convictions. Any reference to his

pre-arrest silence was harmless. Johnson fails to demonstrate ineffective

assistance of counsel. We affirm.

       From 2000 to 2010, Silas Potter worked in the facilities department of the

Seattle School District. As coordinator of the District's Historically Underutilized

Businesses Program (HUB) and Regional Small Business Development Program

(RSBDP), Potter managed efforts to increase participation of minority-owned
small businesses in publicly funded construction projects. In June 2010, the

District's internal auditor discovered that a $35,000 check intended for RSBDP

had been deposited in Potter's personal bank account. Although the money was

returned, the Washington State Auditor's office began an investigation and
No. 71562-3-1/2


discovered inconsistencies in records relating to a personal services contract

between the District and a business called Grace of Mercy, owned by David

Johnson. Ultimately, the State charged Potter and Johnson with 36 counts of

first and second degree theft by color or aid of deception based on checks paid

by the District to Grace of Mercy between May 2007 and June 2010 for a total of

$168,275.

      At trial, Potter testified that he met Johnson in 2006, when Johnson was

installing security cameras in certain District properties. Potter assisted Johnson

in obtaining contracts with the District for his company, Allstate Surveillance, for

additional camera installation projects. In April 2007, Potter approved a personal

services contract between the District and Grace of Mercy, with Johnson listed as

Executive Director, in the amount of $20,800 for services to be performed

between March 1 and August 31, 2007. In a description of its scope of work

attached to the contract, Grace of Mercy was to work with "existing agencies,"

"community based organizations," and "firms" in Tacoma and Pierce County to
"implement" RSBDP and "raise awareness" for HUB, develop a "working list of
interested firms," screen and assess those firms, participate in "implementation"

meetings, and meet with the program manager to "insure and assess the
progress towards the goals and objectives of the program."
       Potter testified that under the initial Grace of Mercy contract, Johnson was

to perform "outreach" in the Tacoma area by talking to contractors and "showing
them information" about the program. Potter could not describe Johnson's

qualifications for such work beyond knowing "a lot of contractors." Potter testified
No. 71562-3-1/3


that Johnson did not meet regularly with him or report to him about any actual

outreach efforts and that Johnson did not attend any of the weekly group

meetings he conducted with other personal service contractors who were

engaged in outreach. Potter also testified that he certified Johnson's invoices for

payment by the District without reading the descriptions of his activities or

verifying that he had performed the work for which he was billing.

       In the following months, Potter approved contract modifications and new

contracts increasing the expected dollar amounts and extending the timeframe

for services to be performed by Grace of Mercy. Potter testified that he met with

Johnson at a Denny's restaurant in September or October of 2007 to discuss a

new District requirement that personal service contractors engaged in outreach
must also teach classes for small business owners interested in participating in

public construction projects. According to Potter, he and Johnson agreed to bill
the District as if Johnson were actually teaching the classes and then split the

money. For the next several months, Johnson submitted invoices listing classes
he claimed to have taught and Potter certified the invoices for payment by the
District. Potter admitted that he later began drafting Johnson's invoices and

forging Johnson's signature before certifying the invoices for payment. Potter
testified that Johnson gave him cash after the District paid each invoice.

       Each of Johnson's first four invoices lists 36 hours at $100 per hour for

having a "community outreach session with prospective firms;" assessing a total
of 45 firms "per SSD requirements" and giving "information for HUB roster;" and
meeting "with Mr. Potter weekly to assess program." The second, third, and
No. 71562-3-1/4



fourth invoices indicate Johnson "gave workshop" each month for a total of 49

firms and "worked with contractor on proposal for... bid" or "on estimating

project" for Pierce Transit, Sound Transit, or Pierce County. The fifth invoice lists

51 hours at $100 per hour for the same activities including working with "12

contractors," giving a workshop for "24 firms," assessing "10 firms," giving a

"Seminar on Business development" for "14 firms," and "Data entry to compile

outreach efforts and to build spreadsheet of firms." The invoices do not include

dates or locations for any of these activities or identify any contractors or firms by

name.


        Cheryl Graves, who worked as Potter's assistant in 2007, testified that she

attended RSBDP training classes as well as Potter's weekly group meetings,

which she described as "mandatory," with personal service contractors. Although

she recalled seeing Johnson at some of the classes "early on," Johnson did not
teach any class, did not attend the mandatory weekly contractor meetings, and
did not meet on a weekly basis individually with Potter. Graves testified that

Johnson did not report anything to her regarding his outreach efforts and that he

never provided her with any data regarding firms to enter into the database that

she maintained.

        Ralph Ibarra testified that he performed outreach and training work for
HUB and RSBDP from 2006 or 2007 until 2010. Ibarra attended weekly

meetings with Potter and other personal services contractors, including Eddie
Rye, to "communicate those different activities that we were engaged in," and "to
brief not only one another, but also Mr. Potter, and the Seattle Public Schools
No. 71562-3-1/5


employees so they would know what was going on and what was expected."1

Ibarra testified that Johnson was not present at any of the many meetings he

attended with Potter and other personal services contractors and training

instructors over the years he worked for HUB and RSBDP. Rye, who also

worked for HUB and RSBDP as a personal services contractor from 2007 to

2010, testified that he met weekly with Potter and other personal services

contractors such as Ibarra to discuss the duties each performed and to

coordinate efforts. At the time of trial, Rye had never met Johnson.

      Johnson presented the testimony of Seven Hobbs, who identified himself

as a maintenance worker and owner of a non-profit agency inspired by Johnson.

Hobbs had known Johnson for 28 years but became closer friends with him in

2008, when he attended three classes provided by RSBDP at Johnson's

suggestion. Although he invited other contractors to participate in the classes, he
did not pursue any contract work with the District. Tommy Nicholson, the owner
ofa carpet cleaning business, testified that he attended a class in Seattle at
Johnson's urging but did not find it helpful to his business. Although he could not
recall the specific date, he believed he attended the class in 2006. Thomas
Roundtree, a former general contractor, testified that he attended approximately
"a dozen" RSBDP classes in Seattle in 2008 based on Johnson's

recommendation and that he invited other business associates to attend.

Raymond Montgomery, an owner of a janitorial business, testified that he went to
6 or 7 RSBDP classes in Seattle in 2008 or 2009.



       1 Report of Proceedings (Oct. 31, 2013) at 147-48.
                                              5
No. 71562-3-1/6


      Johnson denied reading or signing the description of his scope of work

attached to the contract or the invoices produced by the State at trial. He

produced different documents to support his understanding of his contract with

the District and testified that he only requested payment for tasks he actually

performed. Johnson testified that he attended RSBDP classes to become

familiar with all the information offered. Then he created booklets and flyers by

copying District materials and adding a coversheet or contact information

referring to Grace of Mercy. Johnson testified that he handed out these

documents at Home Depot and Lowe's, "where all the contractors are." Johnson

claimed that he met with Potter occasionally "for the first six months," but then

Potter was not available so he "always left [his] leads and [his] schedule there at

the front desk." Johnson denied meeting Potter at a Denny's restaurant or

agreeing to give Potter a share of his earnings. Johnson testified that he never
taught classes, never submitted invoices claiming to have taught classes, and
never agreed that Potter should submit such invoices on his behalf. Johnson
also testified that he loaned Potter money on two occasions, he gave Potter

blank checks to reimburse another contractor Potter had added to certain Grace

of Mercy invoices, and he made donations to Potter's church.

       The jury convicted Johnson as charged and the trial court imposed a

standard range sentence. Johnson appeals.

                        SUFFICIENCY OF THE EVIDENCE

       Johnson argues that the State failed to present sufficient evidence to

support the first five convictions oftheft in the first degree because all the
No. 71562-3-1/7


evidence demonstrated that Johnson actually performed the outreach work

specified in his personal service contract before October 2007. He claims that

there was no deception because Johnson performed outreach work and

submitted accurate invoices. We disagree.

      The due process clause of the Fourteenth Amendment of the United

States Constitution requires that the State prove beyond a reasonable doubt

every element of a crime.2 To determine whether the evidence is sufficient to

sustain a conviction, this court must determine "whether any rational fact finder

could have found the essential elements of the crime beyond a reasonable

doubt."3 A challenge to the sufficiency of the evidence admits the truth of the

State's evidence and all inferences that can reasonably be drawn from the

evidence.4 On issues concerning conflicting testimony, credibility of witnesses,

and persuasiveness of the evidence, this court defers to the jury.5 Circumstantial
evidence and direct evidence are considered equally reliable when weighing the

sufficiency of the evidence.6
       To convict Johnson of each of the first five counts of theft in the first

degree as charged, the State had the burden of proving beyond a reasonable
doubt that, togetherwith Potter, he committed theft of more than $1,500 "by color
and aid of deception."7 The trial court instructed the jury:




       2 In re Winship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970).
       3 State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009).
       4 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       5 State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
       6 State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
       7 Former RCW 9A.56.030(1)(a) (Laws of 2007, ch. 199, § 3).
No. 71562-3-1/8


      By color or aid of deception means that the deception operated to
      bring about the obtaining of the property. It is not necessary that
      deception be the sole means of obtaining the property.

      Deception occurs when an actor knowingly creates or confirms
      another's false impression which the actor knows to be false or fails
      to correct another's impression which the actor previously has
      created or confirmed or prevents another from acquiring information
      material to the disposition of the property involved or promises
      performance which the actor does not intend to perform or knows
      will not be performed.t8]

       Here, a jury could find beyond a reasonable doubt that Potter and

Johnson knowingly used deception to induce the District to enter and make

payments on a personal services contract for services that Johnson did not

perform even before making an explicit agreement to present false invoices and

share the proceeds in October 2007. Potter and other State witnesses identified

the invoices supporting each of the first five payments. Potter certified the

invoices for payment without verifying whether Johnson actually performed any

of the activities described. Johnson denied any knowledge of the invoices and

did not testify that he performed the work described in the invoices. Instead, he
testified that he spent 25 hours each week handing out flyers to strangers in front

of Home Depot and Lowe's or encouraging his friends to attend classes. The

State's witnesses testified that Johnson did not engage in any activities similar to

those performed by the other personal services contractors. None ofthe State's
witnesses recognized the documents Johnson provided at trial to explain his
different understanding of his contract. The State also provided evidence that
Johnson gave Potter money, described as loans or reimbursements, before
October 2007, although Potter denied any explicit financial agreement until after
       8 RCW 9A.56.010(4), (5)(a)-(c), (e); Clerk's Papers at 147-48.
                                               8
No. 71562-3-1/9



that date. Although largely circumstantial, this evidence, viewed in the light most

favorable to the State, would allow a rational trier of fact to find the essential

elements of the first five counts as charged beyond a reasonable doubt.

         The jury was entitled to disbelieve Johnson's evidence and explanation for

his actions and find as it did. Resolution of the direct conflicts between

Johnson's and Potter's differing versions of events required credibility

determinations that we do not review on appeal.

         Given our resolution of his challenge to the sufficiency of the evidence, we

need not address Johnson's challenge to the restitution order based on the same

claim.

                                 FIFTH AMENDMENT

         Johnson argues that Detective Keith Savas made an improper comment

during his trial testimony on Johnson's pre-arrest exercise of his constitutional
right to silence. He claims the comment was particularly improper because
Detective Savas also testified that Potter and Johnson's former girlfriend agreed

to his requests for interviews and confessed their crimes. We reject this claim
because he fails to show prejudice, even if we assume a constitutional violation.

         The State may not commenton a defendant's Fifth Amendment right to

remain silent.9 An impermissible comment on silence occurs when the State
uses the defendant's silence "as substantive evidence of guilt or to suggest to the

jury that the silence was an admission of guilt."10 "A mere reference to silence,



         9 State v. Lewis. 130 Wn.2d 700, 705, 927 P.2d 235 (1996).
         10 Id. at 707.
No. 71562-3-1/10



however, is not necessarily an impermissible comment and, therefore, not

reversible constitutional error, absent a showing of prejudice."11

       A direct comment, such as when a witness or state agent refers to the

defendant's invocation of his or her right to remain silent, is reviewed for

prejudice using a harmless error beyond a reasonable doubt standard.12 An

indirect comment, such as when a witness or state agent references a comment

or action by the defendant which could be inferred as an attempt to exercise the

right to remain silent, is reviewed using the lower, nonconstitutional harmless

error standard to determine whether no reasonable probability exists that the

error affected the outcome.13

       Johnson challenges the following portion of the detective's testimony:

       [PROSECUTOR]: Did you attempt to contact Mr. Johnson?

       [DETECTIVE]: Yes, I did.

       [PROSECUTOR]: How many times did you do that?

       [DETECTIVE]: At least six times.

       [PROSECUTOR]: How did you go about attempting to contact Mr.

Johnson?

       [DETECTIVE]: Iwent to his house a couple oftimes, Itelephoned him at a
couple of different telephone numbers, and e-mailed him.


       11 State v. Slone, 133 Wn. App. 120, 127, 134 P.3d 1217 (2006).
       12 State v. Pottorff. 138 Wn. App. 343, 346-47, 156 P.3d 955 (2007).
       13 Jd at 347; see, e^L, State v. Sweet, 138Wn.2d 466, 480-81, 980 P.2d 1223
(1999) (officer's testimony that defendant said he would be willing to take a polygraph
examination and provide a written statement when neither were introduced at trial was
"mere reference to silence" rather than "comment" on silence and not reversible error
absent showing of prejudice).


                                               10
No. 71562-3-1/11


         [PROSECUTOR]: Did he respond to any of the telephone messages or e-

mails?


         [DETECTIVE]: No.'14'

         Johnson claims that his attorney's continuing objection to all of the

detective's testimony on the grounds of relevance and unfair prejudice was

sufficient to preserve his claim of error. The State argues that Johnson waived

the error by failing to object and cannot demonstrate a "manifest error affecting a

constitutional right."15

         Assuming, without deciding, that he has properly raised this issue,

Johnson does not show that the testimony was prejudicial. The State did not use

it as substantive evidence of guilt.16

         The State did not invite the jury to infer guiltfrom Johnson's failure to

respond to any particular telephone message or e-mail. And the prosecutor did
not refer to Detective Savas's testimony in closing argument. Significantly, there

was substantial evidence of Johnson's guilt presented at trial. In sum, Johnson

fails to show that the alleged error was prejudicial.




         14 Report of Proceedings (Oct. 31, 2013) at 134.
        15 RAP 2.5(a)(3); see State v. Kalebauqh, _ P.3d        2015WL 4136540, *2
(July 9, 2015) ("This exception strikes a careful policy balance. On the one hand, a
procedural rule should not prevent an appellate court from remedying errors that result in
serious injustice to an accused. At the same time, if applied too broadly RAP 2.5(a)(3)
will devalue objections at trial and deprive judges of the opportunity to correct errors as
they happen.").
         16 Cf., State v. Easter. 130 Wn.2d 228, 233-34, 922 P.2d 1285 (1996) (testifying
about his conversation with defendant near scene of accident, officer called defendant a
"smart drunk," and characterized his silence as evasive and evidence of guilt; and
prosecutor repeated "smart drunk" several times during closing).
                                                 11
No. 71562-3-1/12


       For the same reason, we also reject Johnson's alternative argument that

his trial counsel was ineffective for failing to object to this testimony. Johnson

cannot show that failure to object to this testimony was prejudicial.

                    INEFFECTIVE ASSISTANCE OF COUNSEL

       Relying on State v. McGill,17 Johnson contends his attorney provided

ineffective assistance of counsel by failing to cite particular authorities supporting

a claim that the operation of RCW 9.94A.589 resulted in a sentence that was

clearly excessive under RCW 9.94A.535(1)(g), warranting a downward

exceptional sentence. We disagree.

       To demonstrate ineffective assistance, Johnson must show that counsel's

representation fell below an objective standard of reasonableness and that there
is a reasonable probability that the result of the proceeding would have been

different but for counsel's deficient representation.18 We strongly presume that

counsel's representation was not deficient.19 If a defendant fails to make either
of the two showings, the inquiry ends.20 If counsel's conduct can be
characterized as legitimate trial strategy or tactics, counsel's performance is not

deficient.21

       Johnson cannot establish deficient performance. Unlike McGill. this case

does not involve an erroneous application of the law and nothing in the record


        17112 Wn. App. 95, 102, 47 P.3d 173 (2002) (where trial court indicated
inclination to impose exceptional sentence downward but incorrectly believed it lacked
ability to do so, defense counsel was ineffective for failing to cite case law that would
allow imposition of exceptional sentence).
        18 State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
        19 State v. Nichols, 161 Wn.2d 1,8, 162 P.3d 1122 (2007).
        20 State v. Kvllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
        21 Id at 863.

                                                 12
No. 71562-3-1/13



suggests the trial court was unaware of its decision-making authority or discretion

under RCW 9.94A.535(1)(g) or the relevant case law. Defense counsel cited

RCW 9.94A.535(1)(g) in its sentencing memorandum and urged the court

exercise its discretion to impose either a first time offender sentence or an

exceptional sentence below the standard range, "which you are authorized to do

and which . . . [is] fully warranted by all the evidence you've heard as well as the

arguments of counsel."22 Counsel also discussed and distinguished the authority

identified by the prosecutor, State v. Kinneman,23 in his double jeopardy

argument. Essentially, Johnson faults his attorney for failing to differently or

more persuasively distinguish Kinneman in support of his alternative request for
a downward exceptional sentence.24 Because Johnson cannot demonstrate that

counsel's decision to focus his argument on the alternative he viewed as more

promising was not strategic, he has accordingly not overcome the strong

presumption that counsel's representation was not deficient.
            STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In a statement of additional grounds, Johnson claims that the trial court

abused its discretion by refusing to allow "co-counsel when Iwent pro-se" and

allowing the prosecutor "to remove jury instructions" on "lesser charges." He also
states that the trial court should have held a suppression hearing. Because


       22 Report of Proceedings (Feb. 7, 2014) at 54.
       23120 Wn. App. 327, 338, 84 P.3d 882 (2003) (state had discretionary authority
to charge separate count oftheft for each unauthorized withdraw from trust account;
defendant not subject to double jeopardy for 67 theft convictions where each was based
on a discrete act).
       24 Id at 341-48 (reversing downward exceptional sentence based on RCW
9.94A.535(1)(g) as not supported by fact or law where cumulative effect of 67 counts of
theft of over $200,000 was foreclosure of properties and additional substantial loss to
secondary victim).
                                                13
No. 71562-3-1/14


these statements do not sufficiently inform the court of the nature and occurrence

of the alleged error, we cannot review them.25

       We affirm the judgment and sentence.
                                                        6crA,T.

WE CONCUR:




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       25 RAP 10.10(c).
                                            14
