                                                                                                  FILED
                                                                                         COURT. OF APPEALS
                                                                                             DIVISION II

                                                                                        20140E0 30 : AM 9: 49

                                                                                         STATE OF WASHINGTON
    IN THE COURT OF APPEALS OF THE STATE                                                    ASHI     TON.
                                                                                     OFW
                                                 DIVISION II

 STATE OF WASHINGTON,                                                               No. 45495 -5 -II


                                      Respondent,


          v.



 KEITH PASCAL WILLIAMS,                                                     UNPUBLISHED OPINION


                                      Appellant.


         WoRSwICK, J. —          Keith Williams appeals his convictions for second degree identity theft

and bail jumping. He argues that he received ineffective assistance of counsel based on his trial

counsel' s stipulation to the presentation of certain evidence. Because Williams' s trial counsel

was not ineffective, we affirm.


                                                         FACTS


         Pierce County Sheriff s Deputies arrived at a trailer park after midnight as part of an

investigative contact. As they arrived, two men walked around the corner from a neighboring

trailer. Although it was very dark, Deputies Olson and Helligso immediately recognized the men

from previous contacts. One of the men was Williams. Deputy Helligso patted Williams down

and removed a knife from his pocket.

         As Helligso removed the knife, a credit card fell out of Williams' s pocket. The credit

card   bore the   name "   Rusty   McGuire."     1 Verbatim Report         of   Proceedings ( VRP)   at   25. The


deputies checked police records and discovered that Rusty McGuire had reported the credit card,

        with the rest of   his   wallet,   missing the   previous   day.   McGuire     reported   that the   wallet   had
along
No. 45495 -5 -II



been taken from his work truck. After the card was stolen, it was used on five occasions before

the deputies found it.


           The State charged Williams with one count of second degree identity theft and one count

of second degree possession of stolen property. Williams failed to appear for a status conference

court hearing. Williams was then charged with one count of bail jumping.

           At a pretrial hearing, the State announced its plan for addressing the fact that the deputies

recognized Williams. The State said that it had discussed this issue with Williams' s counsel.

The State said that the deputies " knew the defendant and the other man from previous contacts

and arrests."    1 VRP      at   11.   The State further     said, "    My intent is to advise [ the deputies] not to

mention the arrest part, but I do intend to elicit that they knew the defendant from previous

contacts    because that' s how they identified him."                  1 VRP   at   11.   In response, Williams' s trial


counsel acknowledged             that he had discussed this           plan with   the State before, stating, " That' s what


we   discussed   briefly,     Your Honor."        1 VRP    at   11.    The trial court confirmed that the deputies


would be instructed to not mention Williams' s prior arrests in their testimony as their basis for

recognizing Williams. Williams' s trial counsel did not object to the plan or raise the issue again.

           At trial, as agreed by the State and Williams' s trial counsel, the deputies testified about

the previous contacts with Williams and about the circumstances surrounding the identification

and pat -down. Deputies Helligso and Olson both testified that they immediately recognized

Williams. Deputy Olson testified that he " put [ his] flashlight on right away, and [ he] recognized

both   of [the men]    immediately," indicating that he may have failed to recognize Williams until

he   saw   him illuminated. 1 VRP           at   29. Helligso testified, " We contacted both of the subjects


numerous      times   prior   to that."   1 VRP     at   23. Helligso testified that he patted Williams down




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  t] o ensure [ Williams]    didn' t have any firearms, knives, that type                of   thing." 1 VRP at 23.

During the pat -down, Williams told Helligso that he had a knife in his pocket. Williams' s trial

counsel did not object to any of this testimony.

         In closing, the State reminded the jury that Deputy Helligso had patted down the

defendant " for   officer   safety,   given   the    fact it   was   dark   at night."   2 VRP   at   87. The State also


reminded the jury that the deputies " knew the defendant. He wasn' t Rusty McGuire. The

defendant was Keith Williams. So they knew that
                                           .    this card in his possession did not belong to

him." 2 VRP at 87. Williams' s trial counsel did not object.


         A jury found Williams guilty of second degree identity theft and bail jumping, and not

guilty of possessing stolen property.

                                                          ANALYSIS


                                                I. NO INVITED ERROR


         As a threshold issue, the State argues that Williams cannot assert this ineffective


assistance of counsel claim on appeal because he invited the error by stipulating before trial to

how the evidence would be presented. We disagree.


          Under the invited error doctrine, a defendant may not make a tactical decision and later

rely on that decision as the basis for reversal. In re Pers. Restraint of Call, 144 Wn.2d 315, 328,

28 P. 3d 709 ( 2001).   But the invited error doctrine does not foreclose review of a claim of


ineffective   assistance of counsel.         State   v.   Kyllo, 166 Wn.2d 856, 861, 215 P. 3d 177 ( 2009); State


v.   Studd, 137 Wn.2d 533, 550 -51, 973 P. 2d 1049 ( 1999);                   State v. Gentry, 125 Wn.2d 570, 647,

888 P. 2d 1105 ( 1995); State         v.   Bennett, 87 Wn.       App.   73, 76, 940 P. 2d 299 ( 1997). That is,


where defense counsel has arguably invited an error and the defendant later challenges that



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decision on ineffective assistance of counsel grounds, it cannot be said that the defendant invited


the error. Gentry, 125 Wn.2d at 647. Thus, the State' s argument fails.

                                    II. No INEFFECTIVE ASSISTANCE OF COUNSEL


          Williams argues that he received ineffective assistance of counsel in violation of his

federal   and state constitutional rights        to   counsel.   U.S. Const.   amend.   VI, Const.   art.   1§   22. He


argues that his trial counsel was deficient for failing to object to the State' s proposal to elicit

testimony from the deputies that they recognized Williams from numerous previous contacts,
because this evidence prejudicially suggested a criminal history. We disagree.

A.        Standard ofReview

          A claim of ineffective assistance of counsel is a mixed question of law and fact that we

review    de   novo.   State   v.   Sutherby,   165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To show


ineffective assistance of counsel, the appellant must demonstrate both that ( 1) his counsel' s


performance was deficient and ( 2) this deficiency prejudiced his case. Strickland v. Washington,

466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v. Hendrickson, 129 Wn.2d


61, 77 -78, 917 P. 2d 563 ( 1996);         In re Pers. Restraint ofFleming, 142 Wn.2d 853, 865, 16 P. 3d

610 ( 2001).     The appellant' s failure to establish either prong is fatal to an ineffective assistance

of counsel claim. Strickland, 466 U.S. at 700. Additionally, where the appellant claims

ineffective assistance based on his trial counsel' s failure to object, the appellant must also show


that such an objection, if made, would have been successful in order to establish deficient

performance. State v. Gerdts, 136 Wn. App. 720, 727, 150 P. 3d 627 ( 2007).

          Counsel' s performance is deficient if, under all the circumstances, it falls below an


objective standard of reasonableness. Fleming, 142 Wn.2d at 865 -66. When reviewing



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deficiency, we strongly presume that counsel was effective. State v. McLean, 178 Wn. App. 236,

247, 313 P. 3d 1181 ( 2013),    review    denied, 179 Wn.2d 1026 ( 2014). " To rebut this presumption,


the defendant bears the burden of establishing the absence of any ` conceivable legitimate tactic

explaining    counsel' s performance. '     State v. Grier, 171 Wn.2d 17, 42, 246 P. 3d 1260 ( 2011)


 quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).

B.       Williams' s Trial Counsel Was Not Deficient


         1.   Conceivable Legitimate Tactic


         Williams argues that his trial counsel was deficient for failing to object to the State' s

proposal to elicit testimony from the deputies that they recognized Williams from numerous

previous contacts. We disagree, because this was a conceivable legitimate trial tactic, and an

objection to the admission of this evidence would not have been sustained. Grier, 171 Wn.2d at

42.


         Here, there was a conceivable legitimate tactic explaining trial counsel' s agreement to the

State' s proposal to elicit testimony from the deputies about recognizing Williams from previous

contacts. The State needed to demonstrate how the deputies recognized Williams quickly

enough to know that the credit card did not belong to him. Williams' s counsel' s agreement to

quickly dispose of the fact that the deputies recognized Williams, using the neutral language of

 previous contacts,"     is a conceivable legitimate trial tactic to minimize the discussion of this

issue, and the tactic is therefore not deficient. Grier, 171 Wn.2d at 42. Neither was it deficient

for counsel to adhere to his agreement with the State not to object at trial when the " previous


contacts" testimony was given, because an objection at that juncture would have highlighted to

the   jury the   otherwise -minor point   that the   deputies   recognized   Williams from   previous contacts.
No. 45495 -541



         2. Objection Would Not Have Been Sustained


         Moreover, an objection to the proposal would likely not have succeeded. Because

Williams points to his counsel' s failure to object as the basis for his claim, he must demonstrate

that such an objection would have succeeded. Gerdts, 136 Wn. App. at 727. Williams

acknowledges that the fact the deputies recognized Williams was " arguably relevant to

demonstrate deputies knew the       credit card   did   not   belong to   him." Br. of Appellant at 7. He


argues, however, the court would have sustained an objection because the danger of unfair


prejudice substantially outweighed the probative value, given that this evidence revealed that,

having recognized Williams, the deputies were alarmed and immediately frisked him for

weapons.    ER 403. We disagree, because the trial court would not have sustained this objection


given the relatively low prejudice and high probative value of the deputies' familiarity with

Williams.


         ER 403 provides that the trial court may exclude relevant evidence if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading

the jury, or concerns of judicial economy. Under the rule, trial courts balance the probative

value and potential prejudicial effect of evidence. A trial court would sustain an objection based

on prejudice only if the prejudicial effect substantially outweighs the probative value of the

evidence. Here, the danger of prejudice did not substantially outweigh the probative value.

         Williams argues that evidence that the officers recognized him through previous contacts


was highly prejudicial because it strongly suggested criminal propensity. He also argues that this

evidence revealed that the deputies were alarmed and immediately frisked him for weapons. But

framed   as " previous contacts,"   the evidence was not highly prejudicial: while jurors could have



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No. 45495 -5 - 11



inferred that the previous contacts were of a criminal nature, they were not required to make such

an inference. It is not so unusual for a local sheriff' s deputy to be familiar with a community

member that the jury would necessarily have assumed Williams had many negative interactions

with law enforcement. And the State elicited no testimony that the officers frisked Williams for

weapons because of knowledge they had gleaned from prior contacts. The State did not elicit,

and the officers did not give, any testimony emphasizing that the deputies only frisk dangerous

people, or that they felt especially threatened by Williams based on the previous contacts.

        The evidence was highly probative. The deputies' testimonies about how they quickly

determined the credit card did not belong to Williams only made sense if the jury heard that the

deputies knew who Williams was. Any potential prejudice must substantially outweigh this

probative value     for the   evidence   to be   excluded.   ER 403.   Williams cannot meet his burden to


show that any objection to this evidence would have been sustained.

        Because Williams' s trial counsel' s agreement that the State would elicit testimony about

previous " contacts," not " arrests,"      was a conceivable legitimate trial tactic, and because an


objection to this evidence would not have succeeded, Williams' s trial counsel' s performance did

not fall below an objective standard of reasonableness. Because he cannot show deficient

performance, Williams' s ineffective assistance of counsel claim fails. In re Pers. Restraint of

Crace, 174 Wn.2d 835, 847, 280 P. 3d 1102 ( 2012). We do not reach the question of whether


Williams suffered prejudice to his case. Strickland, 466 U. S. at 700.




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No. 45495 -5 -II



        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.




 We concur:




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