                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                          December 6, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 STATE OF WASHINGTON,                                               No. 47713-1-II

                               Respondent,                    UNPUBLISHED OPINION

        v.

 CHRISTOPHER C. KENDRICK,

                               Appellant.

       BJORGEN, C.J. — A jury returned a verdict finding Christopher C. Kendrick guilty of

second degree assault. Kendrick appeals his conviction, asserting that (1) the State failed to

present sufficient evidence to support the conviction and (2) his defense counsel was ineffective

for conceding his guilt on a lesser included charge of third degree assault. We affirm.

                                             FACTS

       Kendrick and Sara Biggs were in a dating relationship and lived together in Tacoma with

Biggs’ three children. On the evening of January 2, 2015, Biggs went to a friend’s house with

her children while Kendrick was at work. While at her friend’s house, Biggs drank several shots
No. 47713-1-II


of whiskey and became intoxicated. Kendrick came home from work later that evening and,

when he saw that no one was at home, suspected that Biggs went to her friend’s house. Kendrick

walked to the friend’s house at around midnight. When he saw that Biggs was intoxicated,

Kendrick became upset and tried to convince her to let him bring her children back home. After

arguing with Biggs and her friends for 15 to 30 minutes, Kendrick and Biggs walked home with

the children.

         After arriving at their home, Kendrick and Biggs again began arguing. Kendrick stated

that he wanted to leave the house and tried to grab some keys. Biggs remembered fighting over

the keys and that Kendrick was on top of her with his hands around her neck, but stated she

“blacked out” and did not remember anything else that happened until she woke up at around

four in the morning. Report of Proceedings (RP) at 42-43. When she woke up, Biggs saw that

she had several bruises on her throat, face, arms, and legs. She also saw that her eyes were red

and that a hole in the wall was bigger than it had been the previous night.

         Biggs reported the incident to police, and Kendrick was arrested at the Lakewood

restaurant where he worked. Kendrick agreed to speak with police after being advised of his

Miranda1 rights. Tacoma Police Officer Joshua Boyd asked Kendrick whether he had thrown

Biggs around the bedroom. Kendrick answered, “It is possible. I am not admitting anything.”

RP at 98. Kendrick gave the same response when asked whether he had pushed Biggs’ head

through a bedroom wall and whether he had choked her. The State charged Kendrick with

second degree assault by strangulation or suffocation.




1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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No. 47713-1-II


       Biggs testified at trial that she had told Boyd that Kendrick caused her injuries, but that

she could not remember telling Boyd about any other details of the incident. Boyd testified that

Biggs had told him Kendrick threw her across the room several times and choked her about four

times, causing her to lose consciousness. Photographs of Biggs’ injuries taken a few days after

the incident were admitted as evidence. The photographs show numerous bruises on Biggs’

arms, legs, chest, and neck, as well as hemorrhaging in her eyes. Kendrick testified that he had

caused Biggs’ injuries depicted in the photographs, but he denied strangling her.

       At the conclusion of the evidentiary phase of trial, defense counsel requested the trial

court to instruct the jury on the lesser-included offense of third degree assault.2 The trial court

granted the request over the State’s objection. During closing argument, defense counsel stated:

               Now, could Mr. Kendrick have handled things a bit differently? Of course
       he could have. . . . I would submit to you, ladies and gentlemen, the most the State
       has proven with [Biggs’] testimony, and just the two of them were there at the time,
       with the injuries that were photographed and have healed, apparently, and then with
       her inconsistencies, I submit the State has not proven anything but Assault Third
       Degree. He could have handled differently and negligently, which is defined in
       your instructions, that is what happened, is Assault in the Third Degree.
       ....
               There was an altercation. Certainly it was not handled properly. Certainly
       there was bruising. I can’t say there wasn’t.
               Ladies and gentlemen, all the State has proven is Assault Third Degree.

RP at 158-60.

       The jury returned a verdict finding Kendrick guilty of second degree assault. The jury also

returned a special verdict finding that Kendrick and Biggs were members of the same family or

household. Kendrick appeals his conviction.



2
  Defense counsel also requested the trial court to instruct the jury on fourth degree assault but
later withdrew this request.

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                                            ANALYSIS

                                I. SUFFICIENCY OF THE EVIDENCE

       Kendrick first contends that the State failed to present sufficient evidence in support of

his second degree assault conviction. Specifically, Kendrick argues that the State failed to

present evidence that he strangled Biggs. We disagree.

       Sufficient evidence exists to support a conviction if any rational trier of fact could find

the essential elements of the crime beyond a reasonable doubt when viewing the evidence in a

light most favorable to the State. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). A

defendant claiming insufficiency of the evidence admits the truth of the State’s evidence and all

inferences that can reasonably be drawn from that evidence. State v. Salinas, 119 Wn.2d 192,

201, 829 P.2d 1068 (1992). When reviewing the sufficiency of the State’s evidence, we consider

circumstantial evidence and direct evidence as equally reliable. State v. Delmarter, 94 Wn.2d

634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues of conflicting witness

testimony, witness credibility, and the persuasiveness of the evidence. State v. Walton, 64 Wn.

App. 410, 415-16, 824 P.2d 533 (1992), abrogated on other grounds by In re Pers. Restraint of

Cross, 180 Wn.2d 664, 327 P.3d 660 (2014).

       To convict Kendrick of second degree assault as charged, the State had to prove beyond a

reasonable doubt that he (1) assaulted Biggs (2) by strangulation or suffocation. RCW

9A.36.021(1)(g). Kendrick challenges only the sufficiency of evidence supporting the second

element. RCW 9A.04.110(26) defines strangulation as “to compress a person’s neck, thereby

obstructing the person’s blood flow or ability to breathe, or doing so with the intent to obstruct

the person’s blood flow or ability to breathe.” Criminal intent “‘may be inferred if the


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defendant’s conduct and surrounding facts and circumstances plainly indicate such an intent as a

matter of logical probability.’” State v. Vasquez, 178 Wn.2d 1, 8, 309 P.3d 318 (2013) (quoting

State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991)).

        The State presented sufficient evidence from which any reasonable jury could find that

Kendrick strangled Biggs. Biggs testified that she remembered Kendrick being on top of her

with his hands around her neck. Although Biggs testified that she could not remember whether

this conduct hurt her or whether she had any difficulty breathing as a result of Kendrick having

his hands around her neck, Boyd testified that Biggs had previously told him Kendrick “choked

her . . . about four times, to the point where she lost consciousness.” RP at 94-95. The jury was

also presented with photographic evidence showing bruising on Biggs’ neck, which Kendrick

admitted causing. This was sufficient evidence from which any reasonable jury could infer that

Kendrick compressed Biggs’ neck and either actually obstructed her ability to breathe or acted

with the intent to obstruct her ability to breathe.

        Kendrick appears to argue that the jury could not rely on Boyd’s testimony to support the

finding that he strangled Biggs because Biggs’ mother told Biggs what to write in her statement

for police. Biggs’ testimony on the role of her mother is imprecise at best. Her testimony could

suggest either that Biggs’ mother told her what to write or that her mother spoke to Boyd for her.

In any event, this testimony was all before the jury, and Boyd testified that Biggs had voluntarily

made these statements herself and that she did not appear to be under the influence of any

medications when doing so. It was solely within the jury’s province to determine the credibility

of Boyd’s and Biggs’ conflicting testimony on this point and, thus, Kendrick’s argument fails.




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Walton, 64 Wn. App. at 415-16. Accordingly, we hold that sufficient evidence supports

Kendrick’s conviction of second degree assault by strangulation.

                            II. INEFFECTIVE ASSISTANCE OF COUNSEL

       Next, Kendrick contends that his defense counsel was ineffective for conceding his guilt

on the lesser included charge of third degree assault. Again, we disagree.

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

Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on his claim of ineffective assistance of

counsel, Kendrick must show both (1) that his counsel’s representation was deficient and (2) that

the deficient representation prejudiced him. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260

(2011), cert. denied, 135 S. Ct. 153 (2014). Conduct constituting a legitimate trial strategy

cannot support an ineffective assistance of counsel claim. Grier, 171 Wn.2d at 33. We presume

that counsel’s performance was not deficient. Grier, 171 Wn.2d at 33. To overcome this

presumption, Kendrick “bears the burden of establishing the absence of any ‘conceivable

legitimate tactic explaining counsel’s performance.’” Grier, 171 Wn.2d at 42 (quoting State v.

Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).

       We have previously held that defense counsel’s concession of guilt to a lesser crime may

be a sound trial tactic where the evidence of such guilt is overwhelming. State v. Hermann, 138

Wn. App. 596, 605, 158 P.3d 96 (2007). There we reasoned that “[s]uch an approach may help

the defendant gain credibility with the jury when a more serious charge is at stake.” Hermann,

138 Wn. App. at 605. Those circumstances are present here.

       As instructed, the jury could find Kendrick guilty of third degree assault if it found that

he (1) negligently (2) caused bodily harm to Biggs, and (3) the bodily harm was accompanied by


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substantial pain that extended for a period sufficient to cause considerable suffering. RCW

9A.36.031(1)(f). The evidence at trial supporting these elements was overwhelming.

Photographic evidence admitted at trial showed numerous injuries to Biggs’ legs, arms, chest,

neck and eyes. Kendrick admitted to causing all of these injuries. Additionally, trial testimony

established that the photographs of Biggs’ visible injuries were taken at the hospital three days

after the incident, and Biggs testified that she had “pain shooting through [her] body” while at

the hospital, which required her to take “a whole bunch of medicine.” RP at 52. In light of this

overwhelming evidence that Kendrick committed third degree assault, defense counsel’s

concession of guilt to that offense was a legitimate tactic to seek acquittal on the greater offense

of second degree assault. Because defense counsel’s concession was a legitimate tactic, it cannot

support Kendrick’s ineffective assistance of counsel claim. Accordingly, we affirm Kendrick’s

conviction.

        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.



                                                      BJORGEN, C.J.
 We concur:



 JOHANSON, J.




 MAXA, J.


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