IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 78037-9-1
                    Respondent,
                                                DIVISION ONE
             V.
                                                UNPUBLISHED OPINION
ARIANE RE JEFFERSON,

                    Appellant.                  FILED: July 22, 2019


      LEACH, J. — A jury convicted Ariane Jefferson of unlawful possession of a

firearm in the second degree and unlawful display of a weapon. Jefferson

challenges the trial court's evidentiary rulings and alleges ineffective assistance

of counsel. We remand to strike the DNA1 collection fee and otherwise affirm

Jefferson's convictions.

                                     FACTS

       Micah Hadenfeldt met Ariane Jefferson when she was a teenager. For

three years, they had an "on and off' relationship. According to Hadenfeldt, she

and Jefferson had some physical fights and domestic violence incidents occurred




       1 Deoxyribonucleic acid.
No. 78037-9-1/2


during the relationship.     In early March 2017, Hadenfeldt learned she was

pregnant.

      Around that time, she and Jefferson were not getting along. One night,

after Jefferson saw Hadenfeldt "snooping" on his cell phone, he grabbed the

phone from her hands and choked her.         Hadenfeldt fell to the ground, and

Jefferson continued choking her. Hadenfeldt later went to the hospital because

she was concerned about her pregnancy.

       Hadenfeldt and Jefferson broke up shortly afterward. But they continued

to talk and occasionally saw each other. Because they were having a child

together, Hadenfeldt wanted the relationship with Jefferson to "work out."

      In early April 2017, Hadenfeldt drove Jefferson to a store in South Seattle.

While Jefferson was inside the store, Hadenfeldt looked at Jefferson's cell phone.

She saw messages that upset her. She drove away, leaving Jefferson at the

store. Hadenfeldt took Jefferson's cell phone with her. She later realized there

was also a firearm in the car that belonged to Jefferson.

      According to Hadenfeldt, Jefferson soon began to badger her to return his

property by calling her and sending threatening text messages.2 On April 17,

2017, Jefferson demanded that Hadenfeldt bring his belongings to the apartment

on Capitol Hill where he was staying by 11:00 a.m.                He threatened

"consequences" if she did not. Hadenfeldt decided to return the firearm but to




       2 Jefferson   owned a second cell phone.

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keep Jefferson's cell phone as "leverage" to continue talking to him. Jefferson

and Hadenfeldt exchanged numerous hostile text messages during the morning.

      Hadenfeldt went to the apartment building and waited in the alleyway

behind the building. She sent text messages to Jefferson, refusing to meet him

in the building's glassed-in entryway and demanding that he walk outside to her.

Jefferson eventually came outside and walked toward her. Hadenfeldt noticed

that Jefferson had a gun in the pocket of his sweatshirt.       Hadenfeldt said

Jefferson suddenly started "sprinting" toward her. Hadenfeldt said she walked

backward uphill, and Jefferson began to pull the gun out. Hadenfeldt then took

Jefferson's loaded firearm out from her pocket and shot him five or six times.3

No witnesses saw the shooting. But a neighbor heard a man's voice exclaim,

"[NJ°, baby no," quickly followed by gunshots. Hadenfeldt later explained that

she had not planned to shoot Jefferson but was frightened for her life because of

his previous threats and the way he aggressively approached her with a gun.

      Bullets struck Jefferson in the hand and buttocks.        Hadenfeldt saw

Jefferson fall to the ground and fled. She ran for several blocks and threw the

gun into the bushes. Hadenfeldt then turned herself in to the police. A resident

of the apartment building saw Jefferson toss a firearm into some bushes as he




       3 Hadenfeldt said she did not remember whether or when she cocked the
firearm in preparation to fire it.

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fell. The police later recovered a loaded .45 caliber automatic firearm from that

location.4 The police never found the firearm Hadenfeldt used to shoot Jefferson.

       The State charged Jefferson with assault in the second degree and

unlawful possession of a firearm in the second degree. After a trial, the jury

acquitted Jefferson of assault but found him guilty of the lesser-included offense

of unlawful display of a weapon and unlawful possession of a firearm. The court

imposed a standard range sentence of 25 months on the unlawful possession of

a firearm felony charge and 12 months of probation with a suspended sentence

on the unlawful display of a weapon charge. Jefferson appeals.

                                    ANALYSIS

ER 404(b) Evidence

       Jefferson claims the trial court abused its discretion when it admitted

Hadenfeldt's testimony that he strangled her a month before the shooting.

       We review a court's decision to admit or exclude evidence of a prior

violent act for abuse of discretion.5 A court abuses its discretion if its decision is

manifestly unreasonable or based on untenable grounds.6

       ER 404(b) bars the admission of evidence of prior bad acts for the

purpose of proving a person's character and showing that the person acted in

conformity with the character.7 But a court may admit the same evidence for


      4 The firearm Jefferson jettisoned was a different caliber than the firearm
Hadenfeldt used.
      5 State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).
      6 Magers, 164 Wn.2d at 181.

      7 State v. Gresham, 173 Wn.2d 405, 420-21, 269 P.3d 207 (2012).



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another purpose, depending on its relevance and the balancing of its probative

value and danger of unfair prejudice.8 Washington courts have admitted prior

acts of domestic violence under ER 404(b) for a number of purposes. These

include showing the reasonableness of a victim's fear where fear is an element of

the charged offense.9

      In State v. Magers,19 a plurality of the supreme court considered the trial

court's admission of prior misconduct evidence to show that the victim's fear was

reasonable and to allow the jury to assess the victim's credibility. Magers faced

several charges, including assault in the second degree.11         In light of the

definition of "assault" in the instructions, the reasonableness of the victim's

"apprehension and fear of bodily injury" was an issue in the case.12      Because

Magers pleaded not guilty and the State had the burden of proving every element

of assault, the court upheld the admission of the ER 404(b) evidence to show the

victim's reasonable fear to prove assault, as defined by the instructions."

       Relying on the concurrence of two justices in Magers, Jefferson contends

that a majority of the court did not agree that ER 404(b) evidence is admissible to

prove a victim's "reasonable apprehension."       We disagree with Jefferson's

interpretation of Magers. The concurring justices explained that under the theory

of assault the State advanced in that case, the State was not required to prove

      8 Gresham, 173 Wn.2d    at 420-21.
      9 Magers, 164 Wn.2d at 186.
      10 Magers, 164 Wn.2d at 181,184.
       11Maqers, 164 Wn.2d at 177-78.
      12 Magers, 164 Wn.2d at 183.
      13 Magers, 164 Wn.2d at 183.



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the victim's state of mind.14   According to the concurring justices, the State, in

fact, offered the evidence to explain the victim's recantation.15 The concurring

justices did not dispute the position of the lead opinion that under proper

circumstances, the State may introduce evidence to prove the reasonableness of

the victim's fear. They merely disagreed with the application of that proposition

to the facts of the case.

       Here, the State primarily focused on the definition of "assault" that

required proof of an act that "creates in another a reasonable apprehension and

imminent fear of bodily injury." The trial court admitted the evidence of the

strangling incident because it was "relevant to Ms. Hadenfel[d]t's reasonable fear

as an element of Assault in the Second Degree."           And the State properly

introduced the evidence for this purpose. The point of disagreement raised by

the concurrence in Maqers has no bearing under these facts.

       In any event, evidentiary error is not grounds for reversal unless it results

in prejudice.16   "In analyzing the erroneous admission of evidence in violation of

ER 404(b), we apply the nonconstitutional harmless error standard."17          This

standard requires us to decide whether there is a reasonable probability that the

outcome of the trial would have been different absent the error.15 Because the

jury acquitted Jefferson of assault, there is no reasonable probability the jury


       14 Maqers, 164 Wn.2d at 194.
       15 Maqers, 164 Wn.2d at 194.
       16 State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
       17 State v. Gunderson, 181 Wn.2d 916, 926, 337 P.3d 1090 (2014).
       18 Gunderson, 181 Wn.2d at 926.



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No. 78037-9-1/7


considered the evidence for an improper purpose. The evidence supporting the

unlawful possession of a firearm charge was essentially undisputed. Jefferson

fails to establish prejudice.

Evidence of Pregnancy

       Jefferson next contends the court abused its discretion when it admitted

evidence that Hadenfeldt was pregnant at the time of the shooting. He maintains

that the pregnancy was not relevant to any issue in the case, was overly

prejudicial under ER 403, and unfairly allowed the State to appeal to the jury's

sympathies.

       But here, also, even assuming that the prejudicial impact of the evidence

outweighed its probative value, Jefferson cannot show prejudice. The evidence

related only to the assault charge and the reasonableness of Hadenfeldt's

explanation for why she shot Jefferson. The State argued that considering her

pregnancy and her testimony that she did not want to end her relationship with

Jefferson, Hadenfeldt's claim that she shot Jefferson out of fear and panic was

credible.

       But, again, because the jury acquitted Jefferson of assault, we can

assume the jurors did not wholly accept Hadenfeldt's explanation. And, while the

State argued that Hadenfeldt's pregnancy made her explanation for her actions

more plausible, it did not rely on the evidence of pregnancy to appeal to the jury's

sympathies. In fact, the State acknowledged that because of her demeanor and




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the offensive messages she sent to Jefferson, it was not easy to empathize with

Hadenfeldt. Any error in admitting the evidence was harmless.19

Ineffective Assistance of Counsel

       Jefferson contends that his trial counsel provided ineffective assistance by

(1) failing to enter into a stipulation to sanitize the evidence of his prior

convictions and (2) proposing a jury instruction for the offense of unlawful display

of a weapon that omitted an essential element of the crime.

       The Sixth Amendment to the United States Constitution guarantees

criminal defendants the right to effective assistance of counse1.2° A defendant

receives ineffective assistance if(1)the attorney's conduct falls below a minimum

objective standard of reasonableness and (2) there is a reasonable probability

the attorney's conduct affected the outcome of the case.21 Failing to satisfy either

part of this analysis ends the inquiry.22 "There is a strong presumption that

counsel has rendered adequate assistance and has made all significant

decisions in the exercise of reasonable professional judgment."23 There is no

ineffective assistance if defense counsel's conduct can be characterized as a

legitimate trial strategy or tactic.24




       19 See Gunderson, 181 Wn.2d at 926.
      20 Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
      21 State v. Benn, 120 Wn.2d 631, 663, 845 P.2d 289 (1993).
      22 State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563(1996).
       23 Benn, 120 Wn.2d at 665.
      24 Benn, 120 Wn.2d at 665.



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Failure To Stipulate to Prior Convictions

       To prove that Jefferson committed unlawful possession of a firearm in the

second degree, the State had to prove that he owned, possessed, or had in his

control a firearm "[a]fter having previously been convicted . . . of any felony."25

"The existence of a constitutionally valid prior conviction is an essential element

of the offense, one the State must prove beyond a reasonable doubt."26

       In Old Chief v. United States,27 the United States Supreme Court

recognized the prejudicial effect that evidence of a defendant's prior conviction

may have on the trial. Under Old Chief and its progeny, when the existence of a

prior conviction is an element of the offense, a trial court must accept a

defendant's stipulation to the prior conviction.25     This stipulation allows a

defendant to avoid the potential prejudice that flows from having the jury hear the

details of his or her prior convictions.29

       In this case, defense counsel chose not to stipulate. Therefore, to prove

the prior conviction element of unlawful possession of a firearm, the State

introduced evidence that Jefferson had two prior convictions of conspiracy to

commit a violation of the Uniform Controlled Substances Act3° and a prior

conviction of unlawful possession of a firearm. Jefferson claims there was no


       28RCW 9.41.040(2)(a)(i).
      28 State v. Reed, 84 Wn. App. 379, 384, 928 P.2d 469 (1997).
      27 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997).
      28 State v. Humphries, 181 Wn.2d 708, 717, 336 P.3d 1121 (2014) (citing
Old Chief, 519 U.S. at 174).
      29 State v. Case, 187 Wn.2d 85, 87, 384 P.3d 1140 (2016).
      30 Ch. 69.50 RCW.


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No. 78037-9-1/10


conceivable strategic reason not to stipulate to unnamed felonies. He posits

there is a reasonable probability that the jury would not have convicted him of

two firearm offenses had it not learned that he had previously committed a

firearm offense.

       But the record reflects a tactical basis for counsel's decision. A month

before trial, Jefferson's counsel expressed uncertainty about whether a

stipulation would serve Jefferson's best interests.        Counsel observed that

Jefferson's criminal history was not especially egregious. He was concerned that

failure to name the crimes might lead the jury to speculate that he was convicted

of more serious crimes. Just before trial began, counsel confirmed his decision

not to stipulate and suggested a limiting instruction.31

       By naming the convictions, defense counsel avoided the possibility that

the jury would presume Jefferson previously committed more serious, violent

crimes. The refusal to stipulate also forced the State to prove the convictions

and gave Jefferson an opportunity to attack the State's evidence. Counsel made

a legitimate tactical decision. And given the strength of the evidence on the

unlawful possession charge and the fact that Jefferson was acquitted of assault,

the most serious charge he faced, we cannot conclude that counsel's decision

prejudiced Jefferson.


       31 The court provided a limiting instruction informing the jury that it could
consider Jefferson's prior convictions for the "sole purpose" of determining
whether the defendant had been previously convicted of a "felony offense that
disqualifies him from possessing a firearm" and that the jury was to consider the
evidence for no other purpose.

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Unlawful Display of a Weapon Instruction

      For the unlawful display of a weapon charge, defense counsel proposed,

and the trial court gave, instructions that tracked the language of two Washington

Pattern Jury Instructions, 133.40 and 133.41.32

      The definitional instruction provided,

             A person commits the lesser crime of unlawfully displaying a
      weapon when he or she carries, exhibits, displays or draws a
      firearm in a manner, under circumstances, and at a time and place
      that manifests an intent to intimidate another or that warrants alarm
      for the safety of another person.[331

      The "to convict" instruction provided, in relevant part,

            To convict the defendant of the crime of unlawfully displaying
      a weapon, each of the following elements of the crime must be
      proved beyond a reasonable doubt:

             (1)    That on or about April 17, 2017, the defendant
                    carried, exhibited, displayed or drew a firearm
                    apparently capable of producing bodily harm;

             (2)    That the defendant carried, exhibited, displayed or
                    drew the weapon in a manner, under circumstances
                    and at a time and place that manifested an intent to
                    intimidate another or warranted alarm for the safety of
                    other persons; and

            (3)     That this act occurred in the State of Washington.[341

      These instructions encompass the language of the unlawful display

of a weapons statute, RCW 9.41.270(1), which states,

      It shall be unlawful for any person to carry, exhibit, display, or draw
      any firearm, dagger, sword, knife or other cutting or stabbing

      32 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:
CRIMINAL 133.40 & 133.41 (4th ed. 2016)(WP1C).
      33 See WPIC 133.40.
      34 See WPIC 133.41.



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No. 78037-9-1/12

      instrument, club, or any other weapon apparently capable of
      producing bodily harm, in a manner, under circumstances, and at a
      time and place that either manifests an intent to intimidate another
      or that warrants alarm for the safety of other persons.

      Subsection (3) of the statute also sets forth five circumstances to which

the offense does not apply:

      Subsection (1) of this section shall not apply to or affect the
      following:

            (a)    Any act committed by a person while in his or her
      place of abode or fixed place of business;

            (b)    Any person who by virtue of his or her office or public
      employment is vested by law with a duty to preserve public safety,
      maintain public order, or to make arrests for offenses, while in the
      performance of such duty;

            (c)     Any person acting for the purpose of protecting
      himself or herself against the use of presently threatened unlawful
      force by another, or for the purpose of protecting another against
      the use of such unlawful force by a third person;

             (d)      Any person making or assisting in making a lawful
      arrest for the commission of a felony; or

            (e)     Any person engaged in military activities sponsored
      by the federal or state governments.35

      Jefferson argues that subsection (3) provides additional elements that the

State is required to prove. And based on the evidence in this case, he contends

that in addition to proving the elements described in subsection (1), the State

was required to prove that he was not "acting for the purpose of protecting

himself.. . against the use of presently threatened unlawful force by another."36


       35 RCW 9.41.270(3). Subsection (2) of the statute provides that the
offense is a gross misdemeanor and that a conviction also results in revocation
of the defendant's concealed weapons license.
       36 RCW 9.41.270(3)(c).



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According to Jefferson, counsel rendered constitutionally inadequate assistance

by proposing an instruction that failed to include this essential element of the

crime.

         Jefferson relies on State v. KvIlo.37 In that case, the Washington Supreme

Court determined that competent counsel would have realized that a pattern jury

instruction pertaining to the law of self-defense was incorrect based on several

relevant appellate court decisions.38 Therefore, counsel's failure to "research or

apply relevant law" amounted to deficient performance.39

         But where there is no case law indicating that a pattern jury instruction

misstates the law, it is not deficient performance for defense counsel to propose

such an instruction.40 In such circumstances, "counsel can hardly be faulted for

requesting a jury instruction based upon a then-unquestioned [pattern jury

instruction]."41

         Jefferson does not identify any decision by a Washington court to support

his position that the pattern jury instructions defining "unlawful display of a

weapon" are erroneous. In the context of lesser included offense analysis, our




          166 Wn.2d 856, 215 P.3d 177(2009).
         37
         38
          KvIlo, 166 Wn.2d at 867.
       39 KvIlo, 166 Wn.2d at 868-69.
       40 State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049(1999)(invited error
doctrine precluded reversal even though a jury instruction erroneously defined
"self-defense").
       41 Studd 137 Wn.2d at 551.



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No. 78037-9-1/14


courts have described the elements of unlawful display of a weapon as those set

forth in subsection (1), consistent with the pattern instructions.42

       In State v. Owens,43 a case Jefferson does not mention, in addition to the

three elements set forth in WPIC 133.41, defense counsel proposed a "to

convict" instruction that added an exception under RCW 9.41.270(3)(a) as a

fourth element.      The district court declined to give Owens's proposed

instruction." Division Two of this court affirmed the conviction, concluding that

RCW 9.41.270(3)(a) was inapplicable, as it was undisputed the defendant was

neither inside his home nor in a structure attached to his home when the crime

occurred.45 Owens does not foreclose an argument that, where applicable, an

exception set forth in RCW 9.71.270(3)(c) should be included in the instructions

as an element. But, at the same time, the decision did not resolve whether the

statutory exceptions should be treated as elements or defenses and neither

holds nor suggests that the pattern instructions misstate the law.

       Under these circumstances, defense counsel did not provide ineffective

assistance by proposing an instruction based upon the pattern jury instructions.46



       42 State v. Baggett, 103 Wn. App. 564, 569, 13 P.3d 659(2000)(all of the
elements of RCW 9.41.270(1) are necessary elements of second degree
assault); accord State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990),
overruled on other grounds by State v. Blair, 117 Wn.2d 479, 816 P.2d 718
(1991).
       43 180 Wn. App. 846, 851, 324 P.3d 757, review denied, 181 Wn.2d 1025
(2014).
       44 Owens, 180 Wn. App. at 851.
       45 Owens, 180 Wn. App. at 855.
       46 See Studd, 137 Wn.2d at 551; State v. McFarland, 127 Wn.2d 322, 334-
35, 899 P.2d 1251 (1995).

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       With regard to prejudice, Jefferson asserts there was substantial evidence

from which the jury could have inferred that he displayed a weapon only to

protect himself.     Specifically, Jefferson points to Hadenfeldt's taunting text

messages and evidence that she forced him out into the open, placing herself in

a position of "field advantage." On the other hand, as the State points out, only

Hadenfeldt testified about the events that led up to the shooting. Her testimony

that Jefferson ran toward her while drawing a firearm from his pocket was

therefore undisputed. In view of the conflicting evidence, we cannot conclude

that there is a reasonable likelihood that the outcome would have been different

had the jury been instructed in accordance with RCW 9.41.270(3)(c).

Accordingly, Jefferson's ineffective assistance of counsel claim fails.

DNA Collection Fee

       Finally, Jefferson seeks to strike the $100 DNA fee from his judgment and

sentence. The State concedes that while this legal financial obligation was

properly imposed at the time of sentencing, we should remand to strike the fee

pursuant to recently amended RCW 43.43.7541 and State v. Ramirez.47 We

accept the State's concession and agree.




       47   191 Wn.2d 732, 426 P.3d 714 (2018).

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No. 78037-9-1/16


      We remand to the trial court to strike the $100 DNA fee. We otherwise

affirm Jefferson's convictions and sentence.




WE CONCUR:




644                                                        ((71.




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