                                                                           FILED
                                                                        JUNE 11, 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. 36626-0-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
CARLOS MICHAEL THIEDE,                        )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       KORSMO, J. — Carlos Thiede appeals from the convictions for felony harassment,

contending there was insufficient evidence on one of the counts and that his attorney

failed to properly investigate that count. We affirm.

                                          FACTS

       Mr. Thiede used a telephone and social media to send numerous threats to S.R.,

telling her he would kill her, her friends, and family. A friend of S.R.’s was present and

recorded the phone conversations. S.R. informed law enforcement about the threats. In

order to verify identity, the police used a fictitious Facebook page to trick Mr. Thiede

into providing pictures of himself using his Facebook account.

       Mr. Thiede was charged with one count of harassment (threat to kill) of S.R. and

two additional counts involving other victims. S.R. testified at trial that Mr. Thiede’s
No. 36626-0-III
State v. Thiede


statements concerned her, so she had asked her friend to record the conversations. The

prosecutor and defense counsel were not aware of the recording. The prosecutor located

the recording and defense counsel asked for a recess to review it. Defense counsel later

noted he had received the recording in discovery but had not recognized the computer

files. Defense counsel initially suggested further investigation into the recording could

be warranted, but later did not object to the recording’s admissibility. Witnesses

identified Mr. Thiede’s voice from recordings.

       Mr. Thiede testified that his phone was stolen and that he lost control of his social

media account. Someone else had used them to send the threats. Defense counsel argued

during closing that the recording backed Mr. Thiede’s theory that someone used his

phone and social media to impersonate him, questioning why Mr. Thiede would so

brazenly convey a threat that included his full name.

       The jury convicted Mr. Thiede on all counts. The court sentenced Mr. Thiede

under the first time offender waiver of presumptive sentence. Mr. Thiede timely

appealed to this court. His appeal was considered without hearing argument.

                                        ANALYSIS

       Mr. Thiede argues that the evidence did not support the conviction involving S.R.

and that his counsel performed ineffectively by not discovering the recording before trial.

We address the two claims in that order.



                                             2
No. 36626-0-III
State v. Thiede


       Sufficiency of the Evidence

       Mr. Thiede contends that the State did not provide sufficient evidence that S.R.

reasonably feared he would carry out the threat to kill. Properly viewed, the evidence

allowed the jury to conclude otherwise.

       Review of this contention is in accord with long settled standards. Evidence is

sufficient to support a verdict if the trier-of-fact has a factual basis for finding each

element of the offense proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-

222, 616 P.2d 628 (1980). The evidence is viewed in the light most favorable to the

prosecution. Green, 94 Wn.2d at 221. Appellate courts defer to the trier-of-fact on

issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the

evidence. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

       To establish a violation of RCW 9A.46.020, one element that the State must prove

is that the victim reasonably feared the defendant’s threat to kill. State v. C.G., 150

Wn.2d 604, 609, 611, 80 P.3d 594 (2003). Testimony about the victim’s fear and

reaction are particularly relevant. State v. Trey M., 186 Wn.2d 884, 905-906, 383 P.3d

474 (2016). Circumstances that may help the factfinder ascertain subjective fear include

how the victim understood the defendant’s capabilities and characteristics when the

victim received threats. Id. at 905-906; C.G., 150 Wn.2d at 606-607. The method the

defendant used to deliver the threats and the reaction of others who heard the threat may

                                               3
No. 36626-0-III
State v. Thiede


also be considered. Trey M., 186 Wn.2d at 905-906. In Trey M., the court found

sufficient evidence when the victims testified that the defendant’s threats scared them and

they believed the defendant was out of custody and could hurt them. Id.

       S.R. responded to Thiede’s threats by stating, “I’m not scared of you,” and

informing him that she planned to call the police. Thiede argues that her statement

showed she did not fear the threats. However, S.R. testified she believed the statements

were threats and that she was “concerned.” She reacted by promptly informing her

family and contacting law enforcement, actions that she would not have engaged in if she

did not believe the threats were genuine. S.R. emphasized during testimony that Mr.

Thiede was much older than her, a fact further suggesting he posed a threat to the young

girl’s safety. S.R.’s friend also testified that she was afraid for her and S.R.’s safety upon

hearing the statements. All this evidence allowed the jury to reasonably determine S.R.

subjectively and reasonably feared Mr. Thiede’s threats to kill her and others.

       The evidence was sufficient to support the verdict.

       Ineffective Assistance of Counsel

       Mr. Thiede also argues that his attorney was ineffective due to failure to discover

the recording of the threats against S.R. That error did not prejudice the defense.

       The standards governing review of this argument are long settled. The Sixth

Amendment guarantee of counsel requires defense counsel to perform to the standards of

the profession. Failure to live up to those standards will require a new trial when the

                                              4
No. 36626-0-III
State v. Thiede


client has been prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322,

333-335, 899 P.2d 1251 (1995). In evaluating ineffectiveness claims, courts must be

highly deferential to counsel’s decisions. 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). To prevail on a claim of ineffective assistance, the defendant must

show both that his counsel erred and that the error was so significant, in light of the entire

trial record, that it deprived him of a fair trial. Id. at 690-692.

       When a claim can be resolved on one ground, 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). To establish prejudice, the error must undermine confidence in the trial court’s

verdict sufficient to warrant a new trial. Strickland, 466 U.S. at 694-695.

       Counsel reviewed the recording and apparently declined to further investigate the

matter after initially considering the possibility.1 The recording did little more than

corroborate the testimony describing the threats. Mr. Thiede suggests that discovering

the recording earlier could have led his trial counsel to change strategy because the

recording undermined the defense. It did not. The defense to all three cases depended on

the credibility of Thiede’s assertion that his identity had been hijacked. While the

recording allowed the jurors to compare the speaker’s voice with Thiede’s, it still only


       1
        There is no evidence suggesting that additional investigation of the recording
could have undermined its authenticity.

                                                5
No. 36626-0-III
State v. Thiede


served as corroborating evidence of the testimony of the victims who identified him as

the caller. Moreover, defense counsel incorporated the recording into closing argument.

No other plausible strategy suggests itself, particularly since there were multiple

allegations of similar behavior. In light of the other evidence against Mr. Thiede, the

failure of counsel to view the video earlier does not undermine the jury’s verdict.2

       The error in failing to discover the recording earlier was not prejudicial. Mr.

Thiede has not established that his counsel provided ineffective assistance.

       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, A.C.J.
WE CONCUR:


_________________________________
      Lawrence-Berrey, J.


_________________________________
      Siddoway, J.


       2
         Mr. Thiede’s claim that discovering the video before trial could have led him to
take a plea deal is not supported by the record. For matters outside the record, a personal
restraint petition is the appropriate method of gathering evidence and using it to establish
a claim of ineffective assistance. McFarland, 127 Wn.2d at 335.

                                             6
