                                                                          FILED
                                                                        APRIL 2, 2020
                                                                In the Office of the Clerk of Court
                                                               WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                          )
                                              )         No. 36489-5-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
WILLIAM VERN GADBERRY,                        )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — William Gadberry appeals from a conviction for second degree

assault, contending that evidence was improperly admitted and that his attorney

performed deficiently. We affirm.

                                          FACTS

       The victim, Ms. Quinn Learn, lived in the basement of the home of Jeanne

Gadberry, a woman for whom Learn provided caregiving services in exchange for room

and board. Two of Gadberry’s sons, Steven and William, also lived in the basement.

When Ms. Gadberry was hospitalized due to medical complications, her other children

decided to sell the house. Eviction notices were served on all those living in the building.

       An agitated William Gadberry confronted Learn on June 19, 2018, about missing

jewelry; she attempted to lock herself in her room. According to her, William jumped on
No. 36489-5-III
State v. Gadberry


her and started to squeeze her neck, cutting off her air supply. He then put one of her

belts around her neck and attempted to tighten it; she used her hand to prevent the belt

from closing too tightly. At Learn’s urging, Steven called the police.

       During cross-examination, defense counsel asked Learn why his client had gotten

upset. Learn responded that they had been talking about the missing jewelry, leading him

to become upset. She tried to avoid him because it was “not the first time he’s ever

assaulted me.” Report of Proceedings (RP) at 138. Counsel then received permission to

question Learn about prior arguments not recounted during her direct examination. Learn

testified that Gadberry “has a history of arguing with everybody” and that he had hit her a

couple of times. RP at 145.

       In contrast, William Gadberry testified that he confronted Learn about jewelry his

siblings reported missing and she punched him, beginning an altercation. The two fell to

the floor and she began hitting him with a belt. He testified that he never put his hands

on her neck to strangle her, but did use the belt on her neck to “control” her. She was a

larger person than he was.

       The incident resulted in charges of second degree assault, attempted second degree

murder, and harassment. The case proceeded to jury trial in the Spokane County

Superior Court. Deputy Sheriff Christopher Johnston testified to the injuries suffered by

both Learn and Gadberry. He characterized the scratches on Gadberry’s face as

“defensive wounds.” Detective Mike Ricketts conducted the follow up investigation. He

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State v. Gadberry


testified that the injuries to Learn’s neck were consistent with manual strangulation and

that the injuries were serious, in the “upper 15 percent” of strangulation injuries that

could be photographed. RP at 174-175.

       The defense obtained instructions on self-defense and argued the case to the jury

on that theory. The jury acquitted Gadberry on the attempted murder and harassment

counts, but convicted him of second degree assault.

       Mr. Gadberry timely appealed to this court. A panel considered his case without

hearing argument.

                                        ANALYSIS

       This appeal raises claims of improper opinion testimony by Deputy Johnston and

ineffective assistance by trial counsel. We address those claims in the order listed.

       Testimony of Deputy Johnston

       Mr. Gadberry first contends that Johnston’s testimony about “defensive wounds,”

when coupled with his testimony that he was trained to identify the aggressor, amounted

to an opinion that the defendant was guilty. Gadberry did not challenge the testimony at

trial and cannot now establish manifest constitutional error.

       Two related legal principles govern our review. The first is the recognition that a

proper objection must be made at trial to perceived errors in admitting or excluding

evidence; the failure to do so precludes raising the issue on appeal. State v. Guloy, 104

Wn.2d 412, 421, 705 P.2d 1182 (1985). “‘[A] litigant cannot remain silent as to claimed

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State v. Gadberry


error during trial and later, for the first time, urge objections thereto on appeal.’” Id.

(quoting Bellevue Sch. Dist. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967)). A

trial judge’s decision to admit or exclude evidence is reviewed for abuse of discretion.

Diaz v. State, 175 Wn.2d 457, 462, 285 P.3d 873 (2012). Discretion is abused when it is

exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker,

79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       The second principle is that appellate courts review trial court rulings. Where, as

here, there is no trial court ruling to challenge, appellate review normally is not available.

RAP 2.5(a). There are certain exceptions to this doctrine that recognize a small class of

errors that can be reviewed even in the absence of a trial court challenge. The most

common of those exceptions, found in RAP 2.5(a)(3), permits review of a manifest error

affecting a constitutional right. A party claiming the existence of manifest constitutional

error is first required to establish the existence of error that is constitutional in nature. If

such an error is demonstrated, the party must then show that the error was not harmless

and actually had an identifiable and practical impact on the case. State v. Kirkman, 159

Wn.2d 918, 934-935, 155 P.3d 125 (2007); State v. Scott, 110 Wn.2d 682, 687-688, 757

P.2d 492 (1988).

       Mr. Gadberry argues that this is an instance of manifest constitutional error

because witnesses are not permitted to opine as to the guilt of the defendant. State v.

Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). Such testimony invades the jury

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State v. Gadberry


functions of determining credibility and guilt or innocence. Kirkman, 159 Wn.2d at 927;

Black, 109 Wn.2d at 348. However, opinion testimony indirectly related to an ultimate

fact is not a “manifest” constitutional error that may be raised for the first time on appeal.

Kirkman, 159 Wn.2d at 936.

       The fact that Mr. Gadberry has to combine disparate portions of the deputy’s

testimony to raise this contention defeats his argument by demonstrating there was no

direct testimony opining who was the aggressor. A far closer question was presented in

Kirkman. There, our court concluded that testimony that the child victim’s report of

sexual abuse was “consistent” with the medical findings did not amount to a comment on

the victim’s credibility.

       Moreover, the testimony was not particularly harmful to the defense. Both parties

testified that Mr. Gadberry used the belt on Ms. Learn’s neck. The fact that a person

being strangled would lash out and scratch the assailant’s face in defense was consistent

with the uncontested fact that Gadberry choked Learn with the belt. It did not speak to

the question of who started the fight and whether Gadberry’s use of the belt constituted

lawful self-defense. This testimony was not harmful.

       The alleged error was not manifest.

       Ineffective Assistance of Counsel

       Despite the fact that the jury acquitted on the attempted murder and harassment

charges, Mr. Gadberry alleges that he was the victim of ineffective assistance of counsel

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State v. Gadberry


due to failure to challenge some of the previously mentioned trial testimony from the two

officers and the victim. This claim, too, is without merit.

       An attorney’s failure to perform to the standards of the profession will require a

new trial when the client has been prejudiced by counsel’s failure. State v. McFarland,

127 Wn.2d 322, 334-335, 899 P.2d 1251 (1995). Courts must be highly deferential to

counsel’s decisions when evaluating ineffectiveness claims. A strategic or tactical

decision is not a basis for finding error. Strickland v. Washington, 466 U.S. 668, 689-

691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, courts evaluate

counsel’s performance using a two-prong test that requires determination whether or not

(1) counsel’s performance failed to meet a standard of reasonableness and (2) actual

prejudice resulted from counsel’s failures. Id. at 690-692. When a claim fails one prong, a

reviewing court need not consider both Strickland prongs. Id. at 697; State v. Foster, 140

Wn. App. 266, 273, 166 P.3d 726 (2007). If the evidence necessary to resolve the

ineffective assistance argument is not in the record, the claim is not manifest and cannot

be addressed on appeal. McFarland, 127 Wn.2d at 334.

       Mr. Gadberry contends that his counsel erred by failing to challenge (1) Johnston’s

testimony concerning the defensive wounds; (2) Learn’s testimony that there were prior

assaults; and (3) Rickett’s testimony about the photographs. It is an exceptionally difficult

proposition to establish error in this regard absent evidence from the trial attorney. As the

Strickland court noted, no two lawyers would try a case in the same manner. 466 U.S. at

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State v. Gadberry


689. Accordingly, discerning such error from an undeveloped appellate record is largely a

fruitless undertaking because the decision to object is a “classic example of trial tactics.”

See State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). “Only in egregious

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

incompetence of counsel.” Id. A reviewing court presumes that a “failure to object was

the product of legitimate trial strategy or tactics, and the onus is on the defendant to rebut

this presumption.” State v. Johnston, 143 Wn. App. 1, 20, 177 P.3d 1127 (2007) (citing

cases).

          All of Gadberry’s arguments run right into this presumption and the even stronger

Strickland presumption that counsel performed effectively. All of the challenged

evidence also fails the Madison centrality argument. The testimony of Johnston and

Ricketts addressed the uncontested fact that Gadberry used a belt around Learn’s neck

during their altercation. None of that testimony addressed the question of who started the

fight.

          Learn’s testimony concerning the previous altercations allowed defense counsel to

raise the issue of prior conflict between the two in support of his self-defense claim and

fit in with his client’s subsequent testimony that Learn was bigger than he was and had

fought him before. The decision to run with the testimony when Learn opened the

subject up was clearly a tactical one by counsel who used the testimony to examine Learn

outside the scope of her direct examination testimony. Accordingly, counsel’s tactical

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State v. Gadberry


decision was not error under Strickland. The information concerning prior physical

conflicts also was highly relevant to the need to use force in self-defense, a defense that

apparently was successful as to the far more serious offense of attempted second degree

murder.

       Gadberry has not established that his counsel erred, nor has he shown any

prejudicial harm from the alleged errors. Since he needed to establish both, his claim of

ineffective assistance fails.

       The conviction is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                              _________________________________
                                                      Korsmo, J.

WE CONCUR:



_________________________________
      Fearing, J.



_________________________________
      Pennell, C.J.



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