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                                                                                                                         E




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                         DIVISION II

STATE OF WASHINGTON,                                                                      No. 43789 -9 -II


                                             Respondent,


          V.




CARL DEMOND LEE,                                                                   UNPUBLISHED OPINION


                                             Appellant.


          JOHANSON, J. —               Carl Demond Lee appeals his jury trial convictions for two counts of

second    degree       assault and one count of            harassment.        Lee argues that his trial counsel provided


ineffective assistance of counsel in ( 1) failing to object to an officer' s testimony about drugs the

Seattle   police      found    on     Lee'   s person when       they   arrested   him; ( 2) cross -examining the officer


about what      kind    of   drugs Lee       was     carrying   when   he   was arrested; (   3) failing to request a limiting

instruction     related      to the   drug    evidence; (   4) failing to move to strike, object, or offer a curative

instruction related to an officer' s testimony about the victim' s statements concerning her fear of

Lee   and      fear    of   retaliation; (     5)    failing to object to the victim' s testimony about previous

uncharged acts of violence;                  and (   6) conceding   guilt    in closing   argument.     Lee also argues that


cumulative ineffective assistance of counsel deprived him of his right to a fair trial. Because Lee

either   fails to     establish   deficient     performance or      fails to   establish prejudice, we affirm.
No. 43789 -9 -II



                                                                           FACTS


                                                         I. ASSAULTS AND HARASSMENT


             In 2011, Erika Wolf and Lee had dated for about five years and had two children


together.         Although they did not live together, Lee often stayed overnight with Wolf and their

children in their apartment.


             On September 25, 2011, while staying with Wolf, Lee became angry with Wolf after she

had    admitted       being       unfaithful         to Lee.        When Lee         announced, "`    I have something on my mind

and    I'   m not    leaving      until   I   get   it   off, "' Wolf realized that he intended to " beat [ her] up really bad,

or   kill [ her]" because he had " done it to [ her] before."                            1 Report   of   Proceedings ( RP)            at   120. Lee


                                                                                                            it         his            and left the
                                          going to take her                         something" to "
then told her that he             was                                    car " or                     get        off         mind,"




apartment.           1 RP    at   121.        Wolf went into the bathroom, locked the door, and started to use the

toilet; she then heard Lee come back inside the apartment.

             Lee told her to open the bathroom door, but when she told him she was using the toilet,

he kicked the door down                       and started      to   hit her. He slapped her several times, kicked her in the


face several times, grabbed her, threw her into the shower, attempted to hit her with the shower

curtain rod, and            then    started         to   choke     her   with   both   of   his hands.    He squeezed her throat hard


enough        that   she could not            breathe.       While he was doing this, he called her a " bitch" and told her

that    he    would    have killed her if their                    children     had   not   been there.     1 RP       at    123.   She believed


him. Although Wolf did not lose consciousness, she was dizzy, her head was pounding, and her

vision was           blurry. After he stopped choking her, she somehow ended up back on the toilet,

 where       he   continued       to slap       and      kick her. The incident woke their two -
                                                                                               year -
                                                                                                    old son, who was in

 Wolf' s bedroom. When she went to get her son, Lee left.




                                                                                2
No. 43789 -9 -II



          Wolf called her mother and told her to come over so she ( Wolf) could go to the hospital.

Wolf' s stepfather called the police.


          When the police arrived at her apartment, Wolf told them what had happened and they

took photographs of her and of the bathroom. An ambulance took her to the hospital. One of the

officers was with her at the hospital.


          While at the hospital, Lee called Wolf on her cellular telephone and told her to go back to

the   apartment "   because he   was   going to    come   back      and   beat [ her] up   again ";   he also accused her


of "   being   a snitch and   calling the    police."   1 RP   at   136.    Wolf put the call on speaker phone so


the officer could hear it.


          Two days later, Lakewood Police Officer Michelle Hector photographed Wolf' s injuries.

The left side of Wolf's face, including her eye, lip, and cheek, were still significantly bruised.

Wolf also had two large bruises near her left hip, a scrape on her left knee, and a scrape on the

inside of her left ankle.


          A couple of weeks after the incident, but before his arrest, Lee called Wolf and left a

voicemail message in which he threatened to harm her. Wolf let the police record this message.

          The Lakewood        police   did   not   immediately      locate Lee.     After Wolf or her mother told


Officer Hector that Lee was in Seattle selling crack cocaine, Officer Hector requested assistance

locating   Lee from    other   local law     enforcement agencies.          The Seattle police located and arrested


Lee.     At the time of arrest, Lee had a small amount of marijuana and two Vicodin pills in his

pocket.




                                                           3
No. 43789 -9 -II



                                                       II. PROCEDURE


                                        A. CHARGES AND PRETRIAL MOTION


          The     State    charged     Lee    with (   1)   second      degree   assault    by   strangulation (             domestic


violence),' (    2) second degree assault by reckless infliction of substantial bodily harm ( domestic
             2                                                                                          3
violence),       and (   3) harassment   by   threat   of   bodily injury ( domestic       violence).        The State alleged


several aggravating factors on both assault charges, including that Lee committed the offense in
the presence of a minor child.4

           Before trial, Lee moved to suppress the evidence that when he was arrested in Seattle,

officers   found    a small amount of marijuana and " a couple pills"                 on   his   person.         1 RP   at   17. The


State did not object to this motion. The trial court granted the motion, excluding " any reference

to    marijuana or pills      found in his     possession when          he   was arrested."      1 RP       at   17.    The State' s


witnesses testified as described above. Lee did not present any evidence.

                                             B. DRUG POSSESSION EVIDENCE


           During Officer Hector' s testimony, the State questioned her about a fax she had sent to
the Seattle Police Department after Lee' s arrest. The State objected when, on cross -examination,

defense counsel tried to introduce a sentence on the fax cover sheet in which Officer Hector said,

     We really   would     like to hammer this guy          with   anything   possible."    1 RP at 62.




     RCW 9A.36. 021( 1)( g); RCW 10. 99. 020.

 2
     RCW 9A.36. 021( 1)(      a);   RCW 10. 99. 020.

 3
     RCW 9A.46. 020( 1)(      a)(   i), (b); RCW 10. 99. 020.

 4
     Former RCW 9. 94A.535( 3)( h)( ii) (2010).


                                                                   El
No. 43789 -9 -II



         Outside the jury' s presence, defense counsel argued that this statement was evidence of

Officer Hector'      s   bias. The State questioned the statement' s relevance and argued that if Lee was


able to introduce the " hammer this guy" statement, the State should be able to introduce other

portions of    the   fax to clarify why Officer Hector                said   this.   Specifically, the State argued that it

should be able to introduce the portion of the fax referring to allegations that Lee was " dealing

crack"   and   that Lee may have          possessed     drugs     at   the time      of   his   arrest.   1 RP   at   62.   Defense


counsel responded that the admission of the drug evidence was improper given the trial court' s

earlier ruling excluding the.drug evidence.

         The trial court ruled that if Lee chose to question Officer Hector about the " hammer this

guy"   statement,        the State "   should be allowed to rehabilitate [ Officer Hector] on the rest of the

portions of    the fax."      5 RP at 290. It stated that the entire fax would be admissible if Lee opened

the door and that the evidence was not hearsay because it was not being offered for the truth of

the matter but, rather, to explain why Officer Hector made the statement the defense introduced.

The trial court also offered to give the jury a limiting instruction.

         On cross -examination, defense counsel had Officer Hector read the " hammer this guy"

statement     in full,    which stated, "   I would like a copy of the arrest report, please, in order to see

the details of the arrest and what officers arrested him, as we really would like to hammer this

 guy   with   anything      possible."    5 RP   at   295.   On redirect, the State asked Officer Hector to read


the entire page, which stated,


          Subject: Carl Lee, ...           was arrested      by   Seattle [ Police Department].             Subject was
         arrested this weekend on Washington' s Most Wanted and victim' s brother led
         police to his location. He was said to be dealing crack; however, no new charges
         were seen on the jail roster charges.     I would like a copy of the arrest report,
         please, in order to see the details of the arrest and what officers arrested him, as
         we    really     would   like to hammer this guy             with    anything     possible.      I' m not sure if



                                                                  E
No. 43789 -9 -II



             the    possession         of   drugs        was   added     by [    the Department     of   Corrections]    as   a

             violation. Thank you."


5 RP        at    297.     Defense counsel then asked Officer Hector whether any of the Seattle police

reports      indicated that Lee             was        in fact selling   crack cocaine.       Officer Hector responded that they

did not.


             The State then asked Officer Hector whether any of the reports said that Lee possessed

drugs       when     he    was arrested.          Defense      counsel objected and moved          for   a mistrial.   The trial court


overruled          the   objection, and       Officer Hector          responded, "    Yes."    5 RP at 303.


             Defense counsel then questioned Officer Hector about what drugs the police reports

mentioned, and Officer Hector confirmed that the reports mentioned 1. 9 grams of marijuana and

two Vicodin              pills valued at $        1.     She also testified that the reports said nothing about Lee selling

marijuana or pills and clarified that she had learned about the possible drug selling from Wolf or

her mother.


             The trial court excused the jury after this questioning, and defense counsel argued his

mistrial motion.              He argued that his questioning was about whether Lee had been selling crack

cocaine and that the State went beyond the scope of that questioning by asking about evidence of

  any drugs."             5 RP   at   307.    The State argued that Lee had opened the door by asking " about the

absence of a reference                 to   dealing        crack cocaine"        and asserted that the additional testimony was


necessary to give a " complete picture" explaining Officer Hector' s reference in the fax to some
type    of       drug    charge.      5 RP   at    307.     Agreeing that Lee had opened the door, the trial court denied

 Lee'   s    mistrial       motion.         Defense counsel declined the trial court' s offer to give a limiting

 instruction related to the drug evidence, stating,

                 I don' t believe      one will solve          the   problem,     Your Honor.     So likely I' m not going
                 to propose any limiting instruction because I don' t know exactly why it was
                                                                            31
No. 43789 -9 -II



         admitted.      That' s for the Court to determine and the person offering it to suggest
         to the Court. I was that person.


5 RP at 310.


                                                      C. WOLF' S FEAR


         Officer Hector also testified that Wolf had said she was afraid of Lee and of Lee

retaliating.        Defense counsel objected to this testimony, but the trial court overruled the

objections



                                  D. PREVIOUS, UNCHARGED ACTS OF VIOLENCE


         Before Wolf testified, the State asked the trial court to determine the admissibility of

Wolf's testimony about several previous, uncharged acts of violence Lee had committed against

her. In an offer of proof, Wolf testified in detail about several incidents of violence by Lee in the

five   years    before this incident.          She testified about not only the violent acts, but where they

occurred, what precipitated them, what Lee said to her before and during the assaults, and why

she    did    not   report   these incidents to the          police.    The trial court ruled that the State could


introduce      evidence of     these   prior acts of violence,       but it told the State that it   needed   to " keep[   ]   it


to   general   terms   of    describing     those events."    1 RP at 105.


         When Wolf testified, the State asked her if she believed that Lee would have " beat [ her]

up again" if she had returned to her apartment after Lee told her to do so while on the phone with
her in the hospital.           1 RP    at   137.    Wolf responded that she believed he would hurt her again

 because of what he had just done.


             The State then asked her if Lee had ever previously followed through on threats to " beat

 her] up" in the       past.    1 RP   at    137.   After Wolf responded that it had happened before, the State



 5 We set out this testimony and defense counsel' s objection in more detail below.
                                                                 7
No. 43789 -9 -II



asked    her how Lee had harmed her before. Wolf responded that Lee had "[ w]hipped [ her] with a


belt   until [   her]   body- was             welted, slapped [       her],   choked [       her], kicked [ her], dragged [ her] around


by [ her]    hair,"         and    had        once      kicked her in her      side near       her    kidney.     1 RP     at    137.   She also


testified that she did not call the police after these incidents because she loved him and was

afraid   that he    would " beat                  [ her] up."   1 RP at 138.


          Defense counsel did not object to any of the testimony in which Wolf was describing

how Lee had hurt her; he objected only after Wolf testified that she was afraid of Lee because

she    feared that he              would "         beat [ her] up."     1 RP       at   138.    Outside the jury' s presence, defense

counsel stated,




          Your Honor, I' ve let the State get out a lot, voluminous testimony about prior
          instances.   And I would object to any further reference to any prior instances.
           Certainly there' s enough to establish any element of the crime that the State needs
          to establish at this point.


1 RP at 139. The State asked the trial court to allow Wolf' s last answer to stand and stated it (the

State) had       not planned                 to   ask   Wolf any    more questions about              any   previous      incidents.    Defense


counsel     noted           that   he had           not   asked   the trial   court     to   strike   the last   answer.         The trial court


sustained any objection to additional questions about the previous incidents.

                                                  E. LEE' S CLOSING ARGUMENTS AND VERDICT


           In Lee' s closing argument, defense counsel argued,

           There'       s   only        a   few issues in this       case.    It' s   not a who -done       -it. The issues center
            on is what occurred on September 25, does it amount to an assault in the second
            degree          or     an       assault     in the fourth degree?             Carl Lee struck Erika Wolf and
            inflicted the injuries that                    you saw.      There is        no    dispute    on   that....         Carl Lee
            threatened Erika Wolf and Erika Wolf had reason to believe that those threats
            could be carried out.  There is no dispute on that. . . . Clearly, Carl Lee
            committed an assault 4 and there' s no dispute on that.


                            So the State has charged Mr. Lee, however, with assault in the second
            degree.          And thus that is              where your        deliberations      need     to focus.    The elements


                                                                               N
No. 43789 -9 -II



            are   in dispute -- that [ sic] elements that are in dispute are, in Count I, whether or
          not the State has shown beyond a reasonable doubt that strangulation has
            occurred; and in Count II, whether or not the State has shown by proof beyond a
            reasonable doubt that there was substantial bodily harm. That' s the focus.

5 RP   at   371 (      emphasis added).         He further emphasized that the jury should focus on whether the

State had proved the strangulation element on the first assault charge and the substantial bodily

harm element on the second assault charge.


            The jury convicted Lee of two counts of second .degree assault- domestic violence, with

the aggravating factor of his having committed the offenses with a minor child present and one

count of harassment- domestic violence. Lee appeals his convictions.

                                                             ANALYSIS


            Lee argues that his trial counsel provided ineffective assistance of counsel in ( 1) failing to

object to Officer Hector' s testimony about the drugs the Seattle police found on Lee' s person

                             him, despite the trial       court' s pretrial      ruling suppressing the       drug   evidence; (   2)
when   they       arrested




cross -examining Officer Hector about what kind of drugs Lee was carrying when he was

arrested; (       3)   failing   to   request a   limiting   instruction    related   to the   drug   evidence; (    4) failing to

move to strike, object, or offer a curative instruction related to Officer Hector' s testimony about

Wolf' s      statements          concerning her fear      of   Lee    and   fear   of retaliation; (    5)   failing to object to

Wolf' s testimony            about      the   previous,   uncharged       acts   of violence;   and (    6) conceding guilt in

closing argument. He also argues that cumulative ineffective assistance of counsel deprived him

of his right to a fair trial. We disagree.


                           I. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD OF REVIEW


            Counsel is presumed to have acted competently unless defendant shows otherwise. State

v.   Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011); State v. Thomas, 109 Wn.2d 222, 226, 743



                                                                     G,
No. 43789 -9 -II


P. 2d 816 ( 1987).        To succeed on an ineffective assistance of counsel claim, Lee must show that

counsel' s conduct was             deficient    and   that the deficient    performance was prejudicial.       Grier, 171


Wn.2d at 33; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d

674 ( 1984).        If defense counsel' s conduct can be characterized as reasonable, legitimate trial


strategy    or    tactics,   a claim of       ineffective    assistance   fails.   Grier, 171 Wn.2d at 33 -34; State v.


Hendrickson, 129 Wn.2d 61, 77 -78, 917 P. 2d 563 ( 1996).


          To      establish   prejudice,       Lee    must    demonstrate     a    reasonable   probability that " but for


counsel' s       unprofessional          errors,   the result of the proceeding would have been different."

Strickland, 466 U. S.             at   694.   If the ineffective assistance claim fails on one prong, we do not

address    the    other   prong.        State v. Staten, 60 Wn. App. 163, 171, 802 P. 2d 1384, review denied,

117 Wn.2d 1011 ( 1991).


                                          II. OFFICER HECTOR' S DRUG TESTIMONY


                     A. OFFICER HECTOR' S TESTIMONY ABOUT LEE' S DRUG POSSESSION

           Lee first argues that defense counsel provided ineffective assistance in " fail[ ing] to object

to Officer Hector' s testimony regarding the drug evidence that the Court had suppressed

pretrial."       Br. of Appellant at 20. Lee contends that this was not a legitimate trial strategy, that it

was   not      objectively        reasonable       for defense   counsel "    to fail to object when Officer Hector


testified as to her opinion that Mr. Lee was guilty of possession of drugs and probably guilty of
                              6
the charged crimes. "              Br. of Appellant at 20.




 6
  To the extent this assertion also suggests that Lee is arguing that defense counsel should have
 objected to Officer Hector' s testimony as opinion of guilt testimony, Lee fails to present any
 argument related to such a claim. Accordingly, we decline to determine whether this testimony

 amounted to opinion of guilt testimony. RAP 10. 3( a)( 6).

                                                                  10
No. 43789 -9 -II



          Despite Lee' s current arguments, the record clearly shows that defense counsel objected

to the   admission of         any   drug    evidence.   The trial court overruled defense counsel' s objections


and allowed the State to question Officer Hector about the information in the fax cover sheet,

which included that Officer Hector had information suggesting that Lee was selling crack

cocaine       and    that Lee may      have    possessed     drugs   when     he   was   arrested       in Seattle.   Because

                                                                                                    7
defense       counsel objected,      this ineffective   assistance of counsel claim        fails.


                         B. DEFENSE COUNSEL' S CROSS -EXAMINATION OF OFFICER HECTOR


          Lee next argues that defense counsel provided ineffective assistance in cross -examining

Officer Hector about what kind of drugs the Seattle police found when they arrested Lee. He

contends that this detailed evidence was unnecessary and that the inquiry was not a legitimate

trial strategy.

          Before defense counsel questioned Officer Hector about what drugs Lee was carrying

when the Seattle police arrested him, the jury heard allegations that Lee was dealing crack

cocaine and that he may have also violated his community custody by possessing drugs at the
time     of   his   arrest.   Lee has failed to show it was an unreasonable tactical decision for defense

counsel to question Officer Hector about what drugs Lee actually possessed in order to take the

sting out of this evidence by establishing that Lee was not carrying any crack cocaine or any

other    drug       in   an amount   that   suggested   he   was    dealing   drugs.     Accordingly, because Lee has

failed to show that this was an unreasonable tactical decision, this ineffective assistance of

 counsel claim also fails.




 7 Lee does not challenge the trial court' s ruling allowing this evidence and testimony on appeal.
 His arguments are presented solely as ineffective assistance of counsel claims.
                                                               11
No. 43789 -9 -II



                              C. FAILURE TO REQUEST A LIMITING INSTRUCTION


        Lee next argues that defense counsel provided ineffective assistance in failing to request

a limiting instruction related to. the drug evidence. Again, we disagree.

         The record suggests that defense counsel did not request a limiting instruction for two

reasons: (    1) he did not think that a limiting instruction would be effective, and ( 2) he did not

understand why the trial court had admitted the evidence. Although defense counsel could have

arguably asked the trial court to limit the drug evidence testimony to the purpose of showing

Officer Hector' s possible bias, we hold that any error in not requesting this instruction was

harmless.


         The   evidence      that Lee had   assaulted and     threatened Wolf        was    overwhelming.      Given the


minor nature of the drug evidence and the strength of the other evidence, we cannot say that Lee

has demonstrated a reasonable probability that " but for counsel' s unprofessional errors, the result

of   the proceeding    would     have been different."        Strickland, 466 U. S.         at   694.   Accordingly, this

ineffective assistance of counsel claim also fails.

                    III. OFFICER HECTOR' S TESTIMONY ABOUT WOLF' S STATEMENTS

         Lee next challenges defense counsel' s failure to object and /or move to strike portions of


the following testimony:

         Q[ The    State].    One last question, and I' m reaching far back in to Monday and the
                   cross -exam     of    defense   counsel,      defense had        asked   you    if Ms. Wolf
                   appeared scared or afraid,       in   your opinion, and you        had    said yes.   Did Ms.

                   Wolf actually tell you that she was scared of Mr. Lee?
         A[ Officer Hector].            Yeah, she did actually tell me --
                    DEFENSE COUNSEL]:              Objection hearsay.
                    STATE]:       Your Honor,       under     ER 803(   a)(   3),   goes to her physical and
                   emotional condition. It' s not hearsay.
                   THE COURT: I' ll overrule the objection.
         A.        She did specifically tell me that she was scared of him and also mentioned
                   that she was scared --


                                                            12
No. 43789 -9 -II



                     DEFENSE COUNSEL]:                       Objection. Not responsive.
                    THE COURT: Sustained.
          Q. (      By [ State]) Did she say that she was scared ofsomething else?
          A.        Of retaliation.

5 RP    at   300 -01 (   emphasis    added).          Defense counsel did not ask the trial court to strike the


 nonresponsive"          answer, nor did he object to the State' s next question as hearsay or seek to

strike Wolf' s answer to that question.


          Lee     now    argues    that   defense        counsel    was   ineffective   for   failing (   1)   to   strike the



nonresponsive answer, and ( 2) to object to the next question as hearsay and then move to strike

that   response.     He contends that had the nonresponsive answer and the following question been

stricken, the jury would not have heard any testimony corroborating " Wolf's testimony that she

was afraid       that Mr. Lee    would    kill   or   harm her."    Br. of Appellant at 26. Again, we disagree.


          First, as to the nonresponsive answer, only the second part of Officer Hector' s response

was nonresponsive. The only information in the nonresponsive portion of her testimony was that

Wolf also mentioned something else she was afraid of. Because defense counsel objected, the

potentially nonresponsive answer revealed very little and would not have been prejudicial.

Furthermore, once the State rephrased the question, Officer Hector was able to testify about the

previously nonresponsive statement in full.

          Lee also challenges defense counsel' s failure to object to the State' s follow - p question
                                                                                          u

and    Officer Hector'       s   response      to     that   question.    If a defendant' s challenge to evidence' s


 admissibility would have failed, a defendant cannot show that counsel was deficient for failing to
 object   to that   evidence.     State   v.   Nichols, 161 Wn.2d 1,         14 -15, 162 P. 3d 1122 ( 2007).         The trial


 court had already overruled Lee' s hearsay objection to the immediately preceding testimony

 because that testimony was admissible as evidence of Wolf' s then existing mental, emotional, or


                                                                   13
No. 43789 -9 -II



physical condition under            ER 803( a)( 3).       The State' s next question was about the same contact


and conversation with Wolf, so any potential hearsay would clearly fall under the same hearsay

exception. It was not deficient performance for defense counsel not to object to this question and


response.    Accordingly, Lee again fails to establish deficient performance and this ineffective

assistance of counsel claim also fails.


          IV. FAILURE TO OBJECT TO WOLF' S TESTIMONY ABOUT PRIOR ACTS OF VIOLENCE

          Lee next argues that defense counsel was ineffective in failing to object to Wolf' s

testimony describing how Lee had hurt her in the past when the trial court had ruled that only
 generalized     information        about   the   prior   incidents     was admissible."     Br.    of   Appellant    at   28. Lee


asserts   that defense     counsel should          have   objected      to Wolf' s   testimony     that Lee had "[ w]hipped



 her] with   a   belt   until [   her]   body   was     welted, slapped [     her],   choked [    her], kicked [ her], [      and]




                                          hair,"          that Lee had kicked her in her                        her   kidney.    1
dragged [ her]     around    by [ her]             and                                             side, near




RP at 137 -38.


          Following an offer of proof, the trial court had ruled that evidence of prior, uncharged

acts of violence was admissible,             but it told the State that it       needed    to "   keep[ ]   it to general terms


of   describing    those   prior events."          1 RP    at   105.    In her offer of proof, Wolf had described the

details   of several previous assaults             by   Lee.     She not only testified about what Lee had done to

her, but why Lee was assaulting her, where the assault took place, and other details. In contrast,

 Wolf' s trial testimony was limited to the fact that he had harmed her and what acts he had done
to her.     Wolf' s trial testimony          was    a much more " general"            description of the various acts of


 violence Lee had committed against her than Wolf had testified to in her offer of proof. Defense

 counsel clearly believed that this was within the scope of testimony the trial court had allowed,
 and we hold that defense counsel' s evaluation of the trial court' s direction was reasonable and

                                                                   14
No. 43789 -9 -II



did   not   amount     to deficient       performance.           Accordingly, this ineffective assistance of counsel

argument also fails.


                                                        V. CONCEDING GUILT


            Lee next argues that defense counsel provided ineffective assistance in conceding that

Lee had committed harassment and that he had struck Wolf and was guilty of " second degree

assault" by reckless infliction of substantial bodily harm. This argument also fails.

            Lee misconstrues the record when he states that defense counsel conceded that he ( Lee)

                                 degree                                 infliction                    bodily   harm.   Counsel
was   guilty   of second                      assault   by   reckless                of substantial




was arguing that Lee was, instead, guilty of the lesser included offense of fourth degree assault

and that the State had failed to prove the charged second degree assault.

            Furthermore, although entering a not guilty plea preserved Lee' s right to a fair trial and

his right to hold the State to its burden of proof, conceding guilt in closing argument on a

particular count can be a sound trial tactic when the evidence on that count is overwhelming and

when    the    count     is    a "   lesser    count"    and there may be an advantage gained by winning the

confidence of      the   jury. State v. Silva, 106 Wn. App. 586, 596, 24 P. 3d 477, review denied, 145

Wn.2d 1012 ( 2001);              see also State v. Hermann, 138 Wn. App. 596, 605, 158 P. 3d 96 ( 2007)

 Division Two         case     applying Silva).         And "[   a]n attorney need not consult with the client before

making       such a   tactical       move."     Silva, 106 Wn. App. at 596 ( citing Underwood v. Clark, 939 F.2d

473, 474 ( 7th Cir. 1991)).             Here, the evidence of the less serious fourth degree assaults and of the


harassment was overwhelming and uncontradicted, and counsel conceded guilt as to these less

 serious     charges.         Under Silva and Hermann, this was a reasonable tactical decision, likely

 intended to gain credibility with the jury on the far more serious second degree assault charges.



                                                                    15
No. 43789 -9 -II



Accordingly,     Lee    once    again   fails to   establish   deficient   performance,   and this ineffective


assistance of counsel claim fails.


                       VI. NO CUMULATIVE INEFFECTIVE ASSISTANCE OF COUNSEL


        Finally, Lee argues that these alleged instances of ineffective assistance, taken together,

cumulatively deprived him of a fair trial. Again, we disagree.

        The cumulative effects of errors may require reversal, even if each error on its own would

otherwise   be   considered     harmless. See State v. Coe, 101 Wn.2d 772, 789, 684 P. 2d 668 ( 1984).


All but one of Lee' s ineffective assistance of counsel claims fail because his counsel' s

representation was      not   deficient.   The only claim that possibly shows deficient performance is

trial counsel' s failure to request a limiting instruction related to the specific drug evidence.

Because this is the only possible error and we have already held that this error was harmless, Lee

does not establish that cumulative error deprived him of a fair trial.

        We affirm.


        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.


                                                                                                 0




                                                                HANSON, J.




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