      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                               No. 73340-1-1


                     Respondent,                   DIVISION ONE


                     v.



MARTIN ANTHONY BURTON,                             UNPUBLISHED


                     Appellant.                    FILED: May 2, 2016




       Cox, J. — Martin Anthony Burton appeals his convictions for second

degree assault and felony harassment. He first contends his trial counsel

provided ineffective assistance by offering an instruction that introduced evidence

of a prior assault. He then claims that his counsel was ineffective by failing to

offer a limiting instruction addressing other evidence of prior bad acts. He further

claims counsel's limiting instruction was flawed because it did not specifically

caution the jury against using the prior assault as propensity evidence. Because

Burton fails to establish either deficient performance or prejudice, and the

instruction limited the jury's use of the prior crime, we affirm.

       On August 11, 2014, Martin Burton and R.W. entered a West Seattle

QFC. Both were intoxicated. R.W. had visible scrapes, cuts, and bruises. She

had blood on her face and her eyes were swollen from crying. Assistant store

manager Travis Patricelli watched the two enter and noted that Burton was
yelling at R.W. Burton told R.W. that "if Igo to jail, when Iget out I'm going to kill
you." R.W. looked frightened and asked for someone to call the police.
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       When police arrived, R.W. told them that Burton "beat her by slapping and

punching her face and ribs and by choking her." She said that when she tried to

flee, Burton grabbed her hair and throat then slammed her into the ground. R.W.

told the officers that "if she said anything that [Burton] would kill her."

       She told police that this was not the first time Burton had attacked her.

She said the day before he had choked her, slammed her head, and raped her.

       When police spoke to Burton, he was agitated and said "[o]h, no, I'm not

under arrest." He eventually complied and was arrested.

       The State charged Burton with second degree assault—domestic

violence, and felony harassment—domestic violence. After a three-day trial, the

jury convicted Burton as charged. The court imposed concurrent sentences for

each conviction for a total of 45 months confinement.

       Burton appeals.

                    INEFFECTIVE ASSISTANCE OF COUNSEL

       Burton argues that he received ineffective assistance of counsel. His

claim is based on a limiting instruction proposed by his attorney which, in his

view, provided evidence of a prior assault not otherwise before the jury. We

disagree.

       A defendant's right to counsel includes the right to effective assistance of

counsel.1 A claim for ineffective assistance of counsel has two elements. Failure




       i Strickland v. Washington. 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
State v. Crawford. 159 Wn.2d 86, 97, 147 P.3d 1288 (2006).

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to demonstrate either is fatal to the claim.2

          First, the defendant must show counsel's performance was deficient.3

This requires showing counsel's performance fell below an objective standard of

reasonableness.4 In reviewing claims for ineffective assistance, we are "highly

deferential to counsel's performance."5 We assume that counsel provided

effective representation and require the defendant show that no "legitimate

strategic or tactical reason" exists for the alleged action.6
          Second, a defendant must show prejudice. Prejudice is a reasonable

probability that but for counsel's error the result of the proceeding would have

been different.7 "A reasonable probability is a probability sufficient to undermine

confidence in the outcome."8

          Before trial, the State moved in limine to admit evidence of Burton's past

physical and sexual abuse of R.W., as well as evidence of a prior assault in

which Burton attacked one of her friends named Virginia. The court concluded

that Burton's prior abuse of R.W. was admissible to prove her state of mind.

Later, the court concluded Burton's assault of Virginia was also admissible.

          During R.W.'s direct examination, the State unsuccessfully attempted to

elicit testimony about the assault:

          [STATE]: Do you know a woman named Virginia?

          2Strickland, 466 U.S. at 697; State v. Foster. 140 Wn. App. 266, 273, 166 P.3d 726
(2007).
          3 Strickland, 466 U.S. at 687.
          * Jd, at 688.
          s In re Pers. Restraint of Gomez. 180 Wn.2d 337, 348, 325 P.3d 142 (2014).
          « State v. McFarland. 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
          7 Strickland, 466 U.S. at 694.
          a Id.
No. 73340-1-1/4



        [R.W.]: My street auntie.

        [STATE]: And, Ms. [R.W.], you spent some time in the jail, correct?
        [R.W.]: Correct.
        [STATE]: Was there a time where you and your street Auntie
        Virginia were in jail together at the RJC?
        [R.W.]: Yes.
        [STATE]: Did she tell you about anything that the defendant had
        done to her recently that would cause her injury?
        [R.W.]: I asked her if she had seen my fiance, or my ex now, but my
        fiance at the time, Martin Anthony Burton, and she said, "He's in
        jail." He was in jail because I was—
        [BURTON]: Objection.

        [R.W.]: This is really frustrating. I also have a court hearing I have
        to go to, and I'm in custody. I'm, just—this is too much for me.
        [STATE]: I know it's overwhelming.
        [R.W.]: I'm not—I've never been through this before.[9]

The State discontinued its questioning about Virginia following this exchange.

        Defense counsel proposed a limiting instruction related to the assault.

The instruction stated that the evidence could only be used for the purpose of

determining whether R.W. reasonably believed Burton would carry out his threat

to kill her:


               I am allowing evidence that [R.W.] knew of Defendant's prior
        assault against a person named Virginia. You may consider this
        evidence only for the limited purpose of considering whether [R.W.]
        knew about this assault prior to August 11, 2014, and whether or
        not the State has proved that her fear that the Defendant would
        carry out his threat to kill her, was reasonable. You must not
        consider this evidence for any other purpose.[10]

        In closing, defense counsel addressed the instruction and argued there

was insufficient evidence about the assault to demonstrate R.W.'s state of mind:

                Now, let me say something about that. We heard very little

        9 Report of Proceedings (March 18, 2015) at 136-38.
        10 Clerk's Papers at 51.
No. 73340-1-1/5



      about the context in which [R.W.] heard that [Burton] had done this
      to another person. We don't know whether she—well, she wasn't
      there. She said that Virginia told her that. We don't know whether
      or not he threatened to kill Virginia. So I would submit to you,
      ladies and gentlemen, that the lack of context and follow up to that
      doesn't provide a reasonable basis for being afraid that [Burton]
      would kill her. But the fact is, we would submit, that he didn't say
      anything like that.[11]

      Burton claims his attorney's performance was deficient because the

limiting instruction introduced evidence of a prior assault not otherwise before the

jury, and counsel "elaborate^] on this omitted evidence" during closing. He

claims this allowed the jury to draw the "most damaging inference that could be

drawn from this evidence: that Burton had assaulted and possibly threatened to

kill someone before, so he must have done it again."

       In some cases, proposing a detrimental instruction may constitute

deficient performance. Burton claims this principle applies here, citing State v.

Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999), and State v. Woods, 138

Wn. App. 191, 197-98, 156 P.3d 309 (2007). But those cases are not persuasive

because each involved an instruction that misstated the law. In Aho, defense

counsel agreed to an instruction misstating the elements of the crime. And in

Woods, defense counsel proposed an instruction misstating the legal standard

for self-defense.

       In this case, the State asked R.W. whether she knew of "anything that the

defendant had done to [Virginia] recently that would cause her injury?" The clear

implication was that Burton injured Virginia. It is reasonable to assume that


       11 Report of Proceedings (March 19, 2015) at 288-89.
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No. 73340-1-1/6



defense counsel sought to prevent any improper reliance on this question by

requesting the limiting instruction. Thus, we also are unpersuaded by Burton's

argument that the jury could not rely on the State's question because it was not

evidence. The State's question brought the issue before the jury, and counsel

chose to request an instruction to limit the use of the information. Burton has not

met his burden of showing deficient performance.

       Yet even assuming error, Burton cannot show prejudice. The instruction

required the jury to restrict its use of the evidence to determining whether R.W.

reasonably feared Burton would actually kill her. Furthermore, the court

instructed the jury to base its decision only on the trial testimony and exhibits:

             It is your duty to decide the facts in this case based upon the
       evidence presented to you during this trial.

              The evidence that you are to consider during your
       deliberations consists of the testimony that you have heard from
       witnesses, stipulations and the exhibits that I have admitted during
       the trial. If evidence was not admitted or was stricken from the
       record, then you are not to consider it in reaching your verdict.

              The lawyers' remarks, statements, and arguments are
       intended to help you understand the evidence and apply the law. It
       is important, however, for you to remember that the lawyers'
       statements are not evidence. The evidence is the testimony and
       the exhibits.!12]

       We presume the jury follows the court's instructions.13

       Finally, there is no support for Burton's claim that the instruction allowed

the jury to speculate that he threatened to kill someone before. The State's




       12 Clerk's Papers at 41-43.
       » State v. Stein. 144 Wn.2d 236, 247, 27 P.3d 184(2001).
No. 73340-1-1/7



question, the instruction, and counsel's argument addressed only an assault.

Burton's claim for ineffective assistance of counsel fails.

                      Failure to Request a Limiting Instruction

       Burton next argues that his attorney was ineffective for failing to request a

limiting instruction addressing the uncharged acts involving R.W. Again, we are

unpersuaded.

       In general, "[i]f evidence of a defendant's prior crimes, wrongs, or acts is

admissible for a proper purpose, the defendant is entitled to a limiting instruction

upon request."14

       At trial, R.W. made numerous nonresponsive assertions regarding Burton.

For instance, she stated that Burton had been in jail and the department of

corrections. She said he "almost choked" three men to death and had sexually

assaulted other women. She stated that Burton was a "violent man" and a

"rapist," mentioned he had a "crack habit," and said he was "sleeping with other

women." She frequently failed to answer direct questions, volunteered

unnecessary information, and demonstrated anger towards counsel.

       She also testified that the day before the incident at QFC, Burton had

choked her, slammed her in the head, and raped her.

       Burton's attorney requested two curative instructions at trial. First, when

R.W. testified that she felt scared for her family. Second, when Officer

Christopher Johnson testified that R.W. appeared to "take [Burton] serious" and

seemed "genuinely afraid." Following R.W.'s testimony, defense counsel

       " State v. Gresham. 173 Wn.2d 405, 423, 269 P.3d 207 (2012).

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specifically contemplated, and withdrew, a motion for a mistrial and limiting

instruction for strategic reasons:

         [DEFENSE]: Your Honor, I withdraw the request. We were thinking
         of a motion for mistrial, but we're not proceeding with that kind of
         motion.
         THE COURT: All right. Okay. All right. And I take it that you've
         talked to your client about potential issues of that? And just so—I
         think I understand why you would want to do that, but just for the
         appellate record, so nobody would second guess—
         [DEFENSE]: So let me make the record clear.
         THE COURT: Right. Okay.
         [DEFENSE]: I did speak with Mr. Burton about, strategically, that
         we had enough basis to move for a mistrial based on several things
         that the alleged victim said on cross-examination; specifically
         referring to his being in jail in other cases and multiple other
         assaults compounding with what she said about him assaulting
         other people in the community. I couldn't count the number of
         times she was also nonresponsive to my questions and tried to
         volunteer information that was prejudicial in character and in nature
         about Mr. Burton. I would usually move for a mistrial. I asked the
         Court already to give the jury a curative instruction regarding the
         issues in this case, and to disregard what she was saying. What I
         would do in this instance is ask the Judge again to give the jury a
         curative instruction to disregard anything the witness may have said
         that was either nonresponsive to my questioning or not relevant to
         the facts that are at issue in this trial.
         THE COURT: Okay. But just for the purposes of appellate review
         on any alleged ineffective assistance of counsel, you've had a
         chance to talk to your client, and so for strategic reasons you are
         deciding not to bring that motion for mistrial; is that correct?
         [DEFENSE]: That's correct. My client wants me to go forward.
         THE COURT: Okay. Thank you. Counsel, anything else on that
issue?
         [DEFENSE]: No. Thank youJ15]

Counsel then withdrew his request for a curative instruction.




         15 Report of Proceedings (March 18, 2015) at 173-74.

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No. 73340-1-1/9



       In closing, defense counsel acknowledged that "something" happened

between R.W. and Burton, but claimed that R.W. was lying and presented an

incoherent story:

              The Defense at this point has to tell you, in all candor, that
      something happened on August 11, 2014. Hiding from that, hiding
      from the fact that Mr. Burton was seen by multiple witnesses yelling
      at [R.W.], that [R.W.] herself was angry about something, that
      anger you saw on the stand when she talked about the woman that
      Mr. Burton was messing with. But the truth of what happened, like
      [R.W.]'s lies, like Martin Burton's life, is shrouded in the chaos and
      the anger of her jumbled story where she alternates in telling that
      story from a weepy whisper, and then to misplaced anger and
      aggression at me for simply asking her how hard and how many
      times she was choked.[16]

Counsel argued that R.W.'s lack of a "linear narrative" was important to the jury's

decision, and that the absence of physical corroboration for R.W.'s story

undermined her credibility. Likewise, counsel argued that "[o]n the felony

harassment, the threat to kill is a figment of [R.W.'s] active imagination."

       Burton claims that there could be no strategic reason for failing to request

a limiting instruction given the damaging nature of R.W.'s testimony. His citation

to City of Seattle v. Patu, 108 Wn. App. 364, 369, 30 P.3d 522 (2001), however,

is unpersuasive. That case involved the denial of defense counsel's requested

limiting instruction, not counsel's decision to forego such an instruction for

strategic reasons.

       Instead, as Burton acknowledges, the decision to not request a limiting

instruction may be tactical because the instruction can reemphasize the




       16 Report of Proceedings (March 19, 2015) at 285.

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No. 73340-1-1/10



damaging evidence.17 Here, the decision to not request a limiting instruction was

clearly strategic. As closing argument shows, counsel's strategy of portraying

R.W. as angry, incoherent, and lacking credibility was premised on her

nonresponsive statements and her accusations. A limiting instruction would only

have undermined this approach. We find no error.

                              INSTRUCTIONAL ERROR

       Burton also claims jury instruction 8, discussed above, was defective

because it did not directly state the jury could not use the prior assault against

Virginia as propensity evidence. We disagree.

       "Jury instructions are proper when they permit the parties to argue their

theories of the case, do not mislead the jury, and properly inform the jury of the

applicable law."18 We review an alleged error in a jury instruction de novo.19
       Under ER 404(b), "[evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in

conformity therewith." Such evidence is, however, admissible for other purposes,

"such as proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident." Pursuant to ER 105, where
evidence is admissible for one purpose but not another, "the court, upon request,

shall restrict the evidence to its proper scope and instruct the jury accordingly."

       As discussed above, the court's instruction on the prior assault specified

the limited purpose for which the jury could use the evidence:


       *7 State v. Barraqan. 102 Wn. App. 754, 762, 9 P.3d 942 (2000).
       is State v. Barnes. 153 Wn.2d 378, 382, 103 P.3d 1219 (2005).
       » State v. Sibert. 168 Wn.2d 306, 311, 230 P.3d 142(2010).

                                               -10-
No. 73340-1-1/11



             I am allowing evidence that [R.W.] knew of Defendant's prior
      assault against a person named Virginia. You may consider this
      evidence only for the limited purpose of considering whether [R.W.]
      knew about this assault prior to August 11, 2014, and whether or
      not the State has proved that her fear that the Defendant would
      carry out his threat to kill her, was reasonable. You must not
       consider this evidence for any other purpose.[20]

       Burton argues that a proper ER 404(b) limiting instruction must include

specific language telling the jury it may not use the prior assault to make a

conclusion about propensity. He relies on Gresham, where the court explained

that an ER 404(b) limiting instruction should inform the jury that "the evidence

may not be used for the purpose of concluding that the defendant has a

particular character and has acted in conformity with that character."21 But that
case did not state any rule regarding the specific wording of such an instruction.

Likewise, in State v. Lough, 125 Wn.2d 847, 889 P.2d 487 (1995), another case

Burton cites, the court did not consider the form an ER 404(b) limiting instruction

should take.

       Here, the jury instruction did not mislead the jury and accurately stated the

law. The trial court's instruction stated that the jury could only consider Burton's

prior assault ofVirginia "for the limited purpose" of determining whether R.W.
reasonably believed he would kill her. The instruction, modeled afterWPIC 5.30,
stated "[y]ou must not consider this evidence for any other purpose." Where ER
404(b) evidence is before the jury, a limiting instruction "should explain to the jury
the purpose for which the evidence is admitted, and should give a cautionary


       20 Clerk's Papers at 51.
       2i Gresham, 173 Wn.2d at 423-24.

                                           -11-
No. 73340-1-1/12



instruction that the evidence is to be considered for no other purpose."22 The

instruction proposed by counsel restricted the jury's use of the evidence to its

proper purpose. We find no error.

      We affirm the judgment and sentence.

                                                             Gtj$%zr*

WE CONCUR:




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       22 State v. Brown. 113Wn.2d520, 529, 782 P.2d 1013 (1989).

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