Opinion
No. 59805-8-I.
April 21, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-1-01161-3, George N. Bowden, J., entered March 20, 2007.
Affirmed by unpublished per curiam opinion.
Mary Clay appeals her conviction for assault in the second degree and possession of cocaine. She challenges the sufficiency of the State's evidence and asserts that her right to effective assistance of counsel was violated. We conclude that there is sufficient evidence to support the jury's verdict. Additionally, we hold that her right to effective assistance of counsel was not violated because the deficiencies alleged were either not erroneous or did not result in prejudice. We affirm.
FACTS
On April 20, 2007, Officer Karen Hallgren pulled into the parking lot of the Parkview Apartments to check for stolen vehicles. She saw Clay and told her that she was under arrest. Officer Hallgren had learned earlier that day that there was probable cause to arrest Clay for robbery. Although Clay was never charged with robbery, the existence of probable cause for the arrest was undisputed. Officer Hallgren testified that she recognized Clay based on "past contact." She handcuffed Clay and walked her to the patrol car. She testified that Clay was "resistive" when being pulled to the car and that Clay shouted, "Donnie, Donnie" toward a second floor apartment. Officer Hallgren testified that this made her concerned for her safety, so she called for backup. She also testified that she considered herself to be in a "high crime area."
Officer Robin Ashley arrived in response to the backup call and assisted in placing Clay into the backseat of the patrol car. Officer Hallgren then began searching Clay's car incident to the arrest. She found a container with drug paraphernalia inside it, which she removed and set on the trunk of her patrol car. She testified that when she did this, Clay began kicking the rear window of the patrol car. When she told Clay to stop kicking, Clay responded with profanity. Officer Hallgren testified that when she and Officer Ashley attempted to apply foot restraints, Clay continued to kick and that one kick pushed her right hand "pretty hard" into the car door jam. The officers were ultimately able to restrain Clay after using pepper spray. Clay's explanation for the incident was that she had a longstanding medical problem with her leg and that Officer Hallgren was trying to bend it too far.
Officer Hallgren testified that Clay continued to shout obscenities during the trip to the jail. Later that day, Officer Hallgren returned to the jail on a different matter and saw Clay in the booking area. Officer Hallgren testified, "She, again, started with a string of profanity, calling me names, and they removed her and put her into a room." Clay also testified that she repeatedly said, "F[—] you" to the officer and that she had had numerous encounters with police and jail personnel.
In addition to the container with drug paraphernalia, Officer Hallgren also retrieved a purse from Clay's car. She searched the purse and found Clay's identification, as well as a small container with a white chunky substance in it. Laboratory testing later revealed that this substance contained cocaine. During the trial, Clay testified that the drug paraphernalia was hers and that she used it for smoking crack. However, she denied that she had drugs in her purse, stating,
I have nothing, no drugs in my purse at all. . . . [Officer Hallgren] got that out of the car. . . . And I can't say that she didn't find no drugs in my car because my car stays open. . . .[A] lot of people I know use drugs who figure it's O.K. to use my car.
2 Verbatim Report of Proceedings (VRP) (Mar. 6, 2007) at 48-49. She also testified that the bottle where the cocaine was found "[c]ould be" hers. Id. She never denied that the cocaine found in her car was hers.
After the arrest, Officer Hallgren's hands hurt. One hand was scraped and the other felt bruised. Her right index finger was swollen. She did not see a doctor immediately, expecting that it would get better. However, she testified that her finger did not get better. "A couple months later, it still was not unswelled. In fact, it was continuing to swell with use, even mild use, so I believe that possibly something more than a sprain may have happened to it because it wouldn't get better." 1 VRP (Mar. 5, 2007) at 64. She also testified that it got to a point where she could not use her finger to fire her weapon. She testified that she did not have any problem with this finger before Clay kicked her hand on April 20, 2006. She saw her family doctor in midsummer, and he recommended that she see a hand specialist.
She saw hand surgeon Dr. Harold McCutchen on September 26, 2006. He diagnosed her with an avulsion fracture of her right index finger. He testified that he could not tell precisely when the fracture occurred based on Officer Hallgren's X ray, but that "[i]t looked like it happened within, say, you know, several months" and that it was consistent with what Officer Hallgren had told him. 2 VRP (Mar. 6, 2007) at 13. On cross-examination, Clay's counsel and Dr. McCutchen had the following exchange:
Q. Is it possible that in the four to five months between the arrest that she described the first time that you saw her, that there could have been other factors involved in the amount of damage to that finger?
A. She could have had an episode that I'm not aware of where she injured it again.
At the end of the trial, Clay was convicted of assault in the second degree and possession of cocaine. She appeals the judgment and sentence.
ANALYSIS
Clay raises two issues on appeal. The first issue is whether the State proved beyond a reasonable doubt that Clay caused the substantial bodily injury Officer Hallgren suffered. This issue goes to the sufficiency of the causation evidence. After reviewing the evidence available to the trier of fact, we conclude that the State met its burden. The second issue is whether Clay received effective assistance of counsel. Clay asserts that her trial counsel made several key mistakes during the course of the trial that were so serious that she did not receive a fair trial. We disagree. The State Proved Beyond a Reasonable Doubt that Clay Caused Substantial Bodily Harm to Officer Hallgren
When reviewing a challenge to the sufficiency of the evidence, we must determine, considering the evidence in the light most favorable to the prosecution, whether "`any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (emphasis omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). We draw all reasonable inferences from the evidence in the prosecution's favor and interpret the evidence most "`strongly against the defendant.'" State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). We assume the truth of the prosecution's evidence and all inferences that the trier of fact could reasonably draw from it. State v. Wilson, 71 Wn. App. 880, 891, 863 P.2d 116 (1993). We defer to the trier of fact to resolve any conflicts in testimony, to weigh the persuasiveness of evidence, and to assess the credibility of the witnesses. State v. Boot, 89 Wn. App. 780, 791, 950 P.2d 964 (1998). Circumstantial evidence is as probative as direct evidence. State v. Vermillion, 66 Wn. App. 332, 342, 832 P.2d 95 (1992).
Here, Clay acknowledges that she assaulted Officer Hallgren, but contends that the State failed to put forward sufficient evidence to prove that this assault caused her to suffer "substantial bodily harm." Substantial bodily harm is defined to include bodily injury that "causes a temporary but substantial loss or impairment of the function of any bodily part or organ, or which causes a fracture of any bodily part." See RCW 9A.04.110(4)(b). Clay argues that because Officer Hallgren did not seek professional medical treatment until several months after the arrest, other intervening incidents might have caused the avulsion fracture. But there was no evidence that any intervening incidents occurred. Officer Hallgren testified that her finger did not get better after the arrest and that it remained swollen. She noted that she had not had problems with this finger before Clay kicked her hand. Her doctor testified that Officer Hallgren's story was consistent with his findings. Aside from the fracture, there was also evidence that Office Hallgren sustained a "substantial impairment" in the function of her finger in that she could not properly use it to fire her weapon. Viewing this evidence in the light most favorable to the prosecution, a rational trier of fact could find that Clay's assault resulted in Officer Hallgren's finger impairment and fracture.
Clay Received Effective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, Clay must meet both prongs of a two-prong test. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Clay must first establish that her counsel's representation was deficient. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To show deficient performance, she has the "heavy burden of showing that [her] attorneys `made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. . . .'" State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 (1992) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). She must establish that, given all the facts and circumstances, her attorney's conduct failed to meet an objective standard of reasonableness. State v. Huddleston, 80 Wn. App. 916, 926, 912 P.2d 1068 (1996). Deficient performance is not shown by matters that go to trial strategy or tactics. Hendrickson, 129 Wn.2d at 77-78. Clay must also show that the deficient performance resulted in prejudice such that "there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different." Id. at 78. This court employs a strong presumption that counsel's representation was effective. McFarland, 127 Wn.2d at 335.
Clay makes several arguments for why her trial counsel's performance was fatally deficient. First, she argues that he should have moved to exclude evidence that she shouted profanities at Officer Hallgren at the jail several hours after the arrest. Clay contends that this evidence was irrelevant and unduly prejudicial. However, even if we accept Clay's contention that this evidence was irrelevant, it did not have any impact on the jury's verdict. The jury heard an extensive and detailed recitation of the profanity Clay used during the arrest from both Officer Hallgren and Clay herself. We do not believe the jury was tipped toward a guilty verdict by the simple statement "She, again, started with a string of profanity, calling me names, and they removed her and put her into a room." 1 VRP (Mar. 5, 2007) at 63.
Second, Clay argues that her attorney should have objected to testimony that she lived in a "high crime area" because it was irrelevant and unduly prejudicial. Citing State v. Suarez-Bravo, 72 Wn. App. 359, 366, 864 P.2d 426 (1994), Clay argues that this kind of evidence is "prohibited profile evidence" that does nothing more than raise an inference that because she lived in a high crime area, she was more likely to have committed the crime in question. We agree with Clay that her attorney should have objected to this evidence. However, given Clay's own testimony about her prior experience with the police, evidence that she lived in a high crime area was not prejudicial.
Third, Clay argues that any evidence that Officer Hallgren knew her from prior contacts should have been excluded as irrelevant and prejudicial. But this evidence was relevant in that it undermined Clay's explanation for kicking Officer Hallgren. Specifically, Clay testified that she was unable to bend her leg fully due to a longstanding medical condition and that Officer Hallgren was nevertheless attempting to tie her feet and make her bend her leg. Officer Hallgren testified that she had seen Clay in a seated position in the past, so she thought Clay could bend her leg. There was no undue prejudice from evidence of prior contacts between Office Hallgren and Clay because Clay herself testified that she had a great deal of experience with the police.
Finally, Clay argues that her trial counsel should have pursued an unwitting possession defense and not conceded her possession of cocaine. During the trial, Clay admitted that the drug paraphernalia discovered in her car belonged to her and that she used it to smoke crack. She stated that the container where the drugs were found "could be" hers, but she denied that she had drugs in her purse. She suggested that the cocaine removed from her car could have been put there by someone else; however, she never denied that the cocaine found in her car was hers. Based on Clay's acknowledgment of crack use, her counsel chose to concede her possession of cocaine and tried to use her testimony to cast her in a truthful light. This was a tactical decision based on her trial testimony. Deliberate tactical choices constitute ineffective assistance of counsel only if they fall outside the wide range of professionally competent assistance. See In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004). Counsel's decision here did not fall outside that range. Furthermore, given Clay's damaging admissions on the stand, the result of the trial would not have been different if her counsel had made a different choice.
For the foregoing reasons, we affirm.