      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                No. 74420-8-1
                      Respondent,
        V.                                      DIVISION ONE

 SHAUN EUGENE KING,                             UNPUBLISHED OPINION

                      Appellant.                FILED: March 6, 2017


       LEACH, J. — Shaun King appeals his convictions for unlawful discharge of a

firearm and assault in the third degree. He claims his counsel was ineffective for

failing to request a curative instruction after successfully moving to exclude

evidence that had already been introduced. Because King has not shown the

absence of any tactical reason for this decision, we affirm.

                                      FACTS

       One evening in November 2014, the Everett police received a call reporting

gunshots in a north Everett neighborhood. An officer who responded to the call

testified that he heard the sound of multiple gunshots coming from a detached

garage. The police announced their presence on the car public address system

and directed all persons inside to come out with their hands empty and raised

above their heads.      The police repeated the announcement a few times.

Eventually King came out of the garage unarmed and lay facedown on the ground.
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       The police arrested King and searched him. During the search King spat,

and the spit landed on the back of one officer.

       The police then searched King's garage and the surrounding area. In the

garage, they found shell casings, broken glass, a firearm magazine, and a block

of wood with apparent bullet holes. The block appeared to have been used as a

target. The police also found what appeared to be bullet holes in a recreational

vehicle(RV)and aluminum structure across the alley from King's garage.

       The State charged King with one count of assault in the third degree and

one count of unlawful discharge of a firearm.

       Pretrial, defense counsel unsuccessfully moved to exclude reference to

holes in the RV and aluminum structure.

       At trial, defense counsel used images of the RV and aluminum structure to

cross-examine Officer Butch Rockwell. The court admitted these images as

substantive evidence. Officer Rockwell testified that he saw "apparent bullet holes"

in the RV. Officer Rockwell also testified that he saw an apparent exit of a bullet

in the wall of King's garage, but he would not say they were "through and through"

bullet holes.

       On the second day of trial, defense counsel renewed his motion to exclude

evidence of the holes in the RV and aluminum structure.1 The court granted the

motion, excluding the evidence under ER 403.2


       1 RCW 9.41.230(1)(b).
       2 "Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice." ER 403.

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        Before closing arguments, the court decided to admit the images of the RV

and the aluminum structure for illustrative purposes only. The parties were

prohibited from using them in closing remarks, and they were not provided to the

jury for use in its deliberation.

       The jury convicted King as charged. King appeals.

                                    ANALYSIS

                          Ineffective Assistance of Counsel

       King claims that his counsel was ineffective for failing to ask the court to

give the jury a limiting instruction on the evidence of apparent bullet holes in the

structures across the alley from his garage.

       Claims of ineffective assistance present mixed questions of law and fact,

which we review de novo.3 We examine the entire record to decide whether the

appellant received effective representation and a fair tria1.4 To succeed in an

ineffective assistance claim, King must show that his attorney's performance fell

below an objective standard of reasonableness and that the deficient performance

prejudiced him.5      We give defense counsel's performance a great deal of

deference, and the defendant must overcome a strong presumption of

reasonableness.6 The reasonableness inquiry requires the defendant to show the




       3 In
          re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610(2001).
      4 State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008).
      5 Strickland v. Washington, 466 U.S. 668, 687,104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
      6 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011).



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absence of legitimate strategic or tactical reasons for the challenged conduct.7

Because King does not show his counsel's performance fell below an objective

standard of reasonableness, his ineffective assistance claim fails.

       King contends that no reasonable strategic basis could explain why his

counsel did not ask for a limiting instruction. But Washington courts have routinely

found that similar decisions could be made for strategic reasons.8 Here, as

defense counsel argued to the trial court, he considered the evidence to be

prejudicial. As a matter of strategy, he might therefore choose not to highlight that

evidence. After successfully barring the State from further discussing the holes,

defense counsel could reasonably decide not to ask the court to mention the holes,

even in the context of a limiting instruction. King does not show that his counsel

lacked a tactical reason for not requesting a limiting instruction.

       Further, the record demonstrates counsel's efforts to minimize the impact

of the evidence. He asked that the images of the RV and aluminum structure be

removed from substantive evidence so they could not be viewed by the jury during

deliberations. He also confirmed that the State would not be able to use those




       7 State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
       8 State v. Dow, 162 Wn. App. 324, 335-36, 253 P.3d 476(2011)(where the
court could conceive that failure to request a limiting instruction on the uses of the
admitted ER 609 evidence was a legitimate tactic to avoid opening the door for
admission of harmful evidence); State v. Yarbrough, 151 Wn. App. 66, 90-91, 210
P.3d 1029(2009)("[F]ailure to request a limiting instruction for evidence admitted
under ER 404(b) may be a legitimate tactical decision not to reemphasize
damaging evidence."); State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447
(1993).

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images in closing argument. These actions support a conclusion that King's

counsel made a strategic decision not to request a limiting instruction.

       King fails to demonstrate that his counsel's performance was deficient.

Because King fails to establish this prong, his ineffective assistance of counsel

claim fails, and we need not inquire further.9

                                  Appellate Costs

       King asks the court to deny the State appellate costs. Newly amended

RAP 14.2 requires us to follow a trial court finding of indigency unless the State

provides sufficient new evidence to overcome that finding:

      When the trial court has entered an order that an offender is indigent
      for purposes of appeal, that finding of indigency remains in effect,
      pursuant to RAP 15.2(f), unless the commissioner or clerk
      determines by a preponderance of the evidence that the offender's
      financial circumstances have significantly improved since the last
      determination of indigency.

       Here, the trial court waived all nonmandatory fees due to King's indigency

and permitted King to appeal his judgment and sentence at public expense.

RAP 14.2 places the burden on the State to show King's position has changed.

The State has not done so. Thus, we presume that King remains indigent and

waive costs of appeal.




       9 See State   v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996).

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                                 CONCLUSION

      Because King cannot show the absence of a tactical reason for failing to

request a limiting instruction, his ineffective assistance of counsel claim fails.

Accordingly, we affirm.




                                                     4.,11
WE CONCUR:




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