Filed Washington State Court of Appeals Division Two
June 21, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 57107-2-II
Respondent, UNPUBLISHED OPINION v.
AARON MAURICE MYLAN,
Appellant.
MAXA, P.J. – Aaron Mylan appeals his conviction of felony harassment arising out of an
incident at a gas station in which he threatened multiple times to kill a store clerk. Mylan told
the clerk that he had been to jail and was not afraid to go back. Another store clerk and a woman
in the restroom called 911 to report that the incident was occurring. Mylan repeated similar
comments to investigating law enforcement officers.
We hold that (1) there was sufficient evidence to support Mylan’s felony harassment
conviction, (2) the trial court did not err in denying a motion to suppress Mylan’s statements to
law enforcement officers that he had been in prison, (3) the admission of the 911 calls did not
violate the confrontation clause because they were not testimonial, (4) we decline to consider
Mylan’s argument that his statements on body camera footage about being in prison were
inadmissible under ER 404(b) because he did not preserve the issue at trial, (5) Mylan did not
receive ineffective assistance of counsel when defense counsel failed to request a limiting No. 57107-2-II
instruction regarding the evidence about being in jail, and (6) there was no cumulative error
warranting reversal.
Accordingly, we affirm Mylan’s conviction, but we remand for the trial court to correct a
scrivener’s error in the judgment and sentence regarding Mylan’s offender score.
FACTS
Background
On April 24, 2022, Mylan entered a gas station shirtless and carrying a backpack. Mylan
wanted to use the restroom, but store clerk David Hamilton-Ross told him that it currently was in
use. Mylan attempted to enter the restroom anyway. The two began yelling at each other and
Mylan berated Hamilton-Ross with expletives and racial slurs. Mylan then told Hamilton-Ross,
“I’ll kill you. I just got out of jail. I’m not scared to go back. I’ll kill you right now.” 2 Report
of Proceedings (RP) at 306.
Hamilton-Ross pushed the panic button and one of the other store clerks called 911. A
woman in the restroom also called 911. Mylan continued to threaten to kill Hamilton-Ross and
said, “Just wait. I’m not scared to go back to jail.” 2 RP at 307.
Mylan briefly left the gas station and when he returned he began destroying property and
threating the store clerks and customers. Hamilton-Ross left the gas station because he did not
feel safe, and Mylan chased him out into the parking lot, threatening to beat him up and kill him.
Mylan then left the area.
Officer John Chesney arrived at the gas station and interviewed Hamilton-Ross about the
incident. Around the same time, Corporal Jordan Ejde was on patrol when he saw Mylan, who
fit the description of the person involved in the gas station incident, on a sidewalk. Mylan waved
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at Ejde like he wanted to talk with him. Ejde pulled over to report to Chesney that he found
someone matching the description, and then he contacted Mylan and asked what had happened at
the gas station. Mylan explained what had happened. Eventually, Chesney and other officers
arrived on scene. The other officers were approximately eight to 10 feet away while Chesney
spoke to Mylan.
Chesney asked Mylan what had occurred at the gas station. Mylan was cooperative and
willingly spoke with Chesney. Chesney then read Mylan his Miranda1 rights and arrested him.
The State charged Mylan with a hate crime and then later added the charge of felony
harassment (threat to kill).
CrR 3.5 Hearing
The trial court held a CrR 3.5 hearing to determine whether the State could use Mylan’s
statements to law enforcement officers at trial. Ejde testified to the facts stated above. He also
stated that when he contacted Mylan, Mylan was free to go at any point. Ejde did not read
Mylan the Miranda warnings. Ejde’s interaction with Mylan only lasted a few minutes before
Chesney arrived.
Chesney testified that when he heard that Ejde had contacted a possible suspect, Chesney
took Hamilton-Ross to Ejde’s location to identify him. Chesney then contacted Mylan and
introduced himself. Mylan was not in handcuffs or restrained during the interaction, nor did the
officers control his movements or detain him.
Mylan told Chesney that he thought the store clerk was being aggressive with him when
he told him to wait for the restroom and that made him upset. Mylan admitted that he told the
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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store clerk that he would beat him up. Mylan also told Chesney that he had been to prison. After
talking with Mylan for around seven minutes, Chesney read Mylan his Miranda rights and
placed him under arrest.
The trial court ruled that Mylan’s statements were admissible, and made extensive oral
findings of fact. These oral finding included the following:
Corporal Ejde had contact with the defendant who met generally the description of a suspect in a potential investigation including that it was a white male who was balding, muscular build, with white sweats. He saw the defendant on the roadside. The defendant, apparently, when he saw Corporal Ejde, hailed him or waved him over. So Corporal Ejde went over to him and parked, got out of his car, and began to have the conversation with the defendant. .... There were no lights or sirens, no indication of a firearm being unholstered. There was no handcuffs. There was distance between the officer and the defendant during that period of time, including between eight and ten feet away. There was no directions to stay put or not leave. If he had attempted to walk off, Corporal Ejde probably would have let him walk away. .... When Officer Chesney had contact with the defendant, he had some information from the clerks of the gas station that he believed established probable cause to arrest for malicious harassment, I believe is what he described. At that time he also had the positive identification that Mr. Mylan was the person of interest in that investigation. During the conversation he had with Mr. Mylan, there were no handcuffs, the police cars were not activating their – had not been activating their overheads, the police officers that were on scene gave some distance to the defendant up to eight to ten feet. There were four police officers total which are not insignificant, but none of them were in such a way to – they were all eight to ten feet away. There is some questioning of the defendant without the advice of Miranda, but at that time Mr. Mylan was not under arrest in a way that would require – he was not – he was free to go, at least at that point. He was not under arrest that would require Miranda warnings to be given. He gave a recitation of his viewpoint of what happened at the gas station. The conversation at that point took about another seven to eight minutes, according to the officer. .... So what I find is that at this point the Miranda was not required during the contact with Corporal Ejde nor during the contact until arrest by Officer Chesney.
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The comments that were made were made freely and voluntarily, and any statement that was made potentially could be used in this trial, pending other evidentiary resources. That’s the ruling of the Court on that.
1 RP at 37-41. The trial court did not enter written findings of fact or conclusions of law.
Pretrial Motions
Before trial started, the State raised the issue of the admissibility of the 911 calls recorded
during the event because the two callers would not be present to testify.
The first call was from Brett Berkompas, the other store clerk working with Hamilton-
Ross. Berkompas described to the 911 operator that there was a man inside their store
antagonizing him and his coworker. Mylan’s yelling could be heard in the background.
Berkompas told the operator that they already asked Mylan many times to leave and that Mylan
was “being extremely aggressive with his words. I’m sure you can hear.” CP at 24. Berkompas
was describing Mylan’s appearance to the operator as Mylan and Hamilton-Ross were yelling at
each other in the background. The operator asked if that was Mylan banging on things to which
Berkompas affirmatively replied. Berkompas described the whole incident until Mylan left the
store.
The second call was from Ashley Siva, who was in the restroom with her son during the
altercation. Siva called 911 and told the operator that “there is a huge argument going on and
I’m hearing people threatening to kill . . . somebody.” CP at 38. She could not see anything so
she relayed everything she was hearing to the operator. She described the slamming noises she
was hearing and said that there was a lot of yelling.
The trial court noted that the statements were hearsay but ruled that they fit within the
present sense impression exception to the hearsay rule. And the court ruled that because the
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statements were describing events as they were occurring and were made for the purpose of
requesting emergency help, they were nontestimonial. Therefore, the court ruled that the
confrontation clause was not implicated by the 911 calls.
The trial court also addressed the issue of Chesney’s body camera footage during his
interaction with Mylan. As Mylan was describing what had happened, he made statements such
as “I’m institutionalized” and “I’ve been incarcerated half my life.” 1 RP at 67. Defense
counsel recognized that the footage was admissible evidence, but asked that the statements about
being in prison be edited out. The prosecutor commented that the relevance of Mylan’s
statement that he had been to prison went to Hamilton-Ross’s reasonable fear. The court ruled
that the body camera footage was admissible, stating that the probative value outweighed the
prejudicial effect. Defense counsel did not object or reference ER 404(b).
Trial and Sentencing
At trial, Hamilton-Ross, Chesney, and Ejde testified to the facts above. Hamilton-Ross
testified that he was really scared of Mylan’s threats to kill him because Mylan was reaching
inside his backpack and he did not know what Mylan had in there. Hamilton-Ross testified that
Mylan threatened to kill him dozens of times. And when Mylan reentered the store and started
banging on freezers, he continued to threaten Hamilton-Ross and his coworker. Hamilton-Ross
went outside because he did not feel safe anymore, and Mylan chased him around outside while
threatening to beat him up and kill him. Hamilton-Ross testified that he took the threats made
against him seriously.
Chesney’s body camera footage was admitted into evidence without objection, and
defense counsel did not propose a limiting instruction. Mylan chose not to testify.
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The jury found Mylan not guilty of a hate crime but guilty of harassment with a threat to
kill.
At sentencing, the State calculated Mylan’s offender score as 10 after not counting one of
Mylan’s 2017 convictions that was overturned on appeal. The trial court agreed with the State
that Mylan’s offender score was 10. But the court’s judgment and sentence stated that his
offender score was 11 instead of 10.
Mylan appeals his conviction.
ANALYSIS
A. SUFFICIENCY OF EVIDENCE – FELONY HARASSMENT
Mylan argues that the State failed to provide sufficient evidence needed to prove Mylan’s
conviction of harassment with a threat to kill. We disagree.
1. Legal Principles – Harassment
Under RCW 9A.46.020(1), a person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens: (i) To cause bodily injury immediately or in the future to the person threatened or to any other person; [and] .... (b) The person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.
Harassment is a gross misdemeanor unless the harassment involves “threatening to kill the
person threatened or any other person.” RCW 9A.46.020(2)(b)(ii). Harassment involving a
death threat is a class C felony. RCW 9A.46.020(2)(b).
RCW 9A.46.020 criminalizes pure speech. State v. Kilburn, 151 Wn.2d 36, 41, 84 P.3d
1215 (2004). Because the First Amendment to the United States Constitution prohibits laws that
abridge the freedom of speech, the harassment statute must be applied in conformance with the
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First Amendment. Id. But the First Amendment protection does not extend to certain
unprotected speech, including “true threats.” State v. Allen, 176 Wn.2d 611, 626, 294 P.3d 679
(2013). As a result, we interpret RCW 9A.46.020(1)(a) as prohibiting only unprotected true
threats. Id.
We employ a reasonable person standard for what constitutes a “true threat” under the
First Amendment. State v. Trey M., 186 Wn.2d 884, 894, 383 P.3d 474 (2016). A “true threat”
is a statement made in a context or under circumstances where a reasonable person would
foresee that the statement would be interpreted as a serious expression of intent to inflict bodily
harm upon or take the life of another person. Id. However, a communication using the wording
of a threat but which in fact is merely a joke, idle talk, or hyperbole is not a true threat. State v.
Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010).
A statement can constitute a true threat even if the speaker has no actual intent to carry
out the threat. Kilburn, 151 Wn.2d at 46. This is because a true threat arouses fear in the person
threatened, and that fear does not depend upon the speaker’s intent. Id. The only question is
whether a reasonable speaker would foresee that the threat would be considered serious. Trey
M., 186 Wn.2d at 894.
Under RCW 9A.46.020(1)(b), the defendant’s words or conduct also must place the
person threatened in reasonable fear that the threat will be carried out. This provision requires
both that the person threatened must subjectively fear that the threat will be carried out and that
the victim’s fear must be reasonable based on an objective standard, considering all the facts and
circumstances of the case. See State v. Cross, 156 Wn. App. 568, 582, 234 P.3d 288 (2010),
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cause remanded on other grounds, 172 Wn.2d 1009, 260 P.3d 208 (2011); State v. E.J.Y., 113
Wn. App. 940, 953, 55 P.3d 673 (2002).
2. Standard of Review
Ordinarily, the test for determining sufficiency of the evidence is whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact could have found
guilt beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014).
When contesting the sufficiency of the evidence, the defendant admits the truth of the State’s
evidence and all reasonable inferences drawn from that evidence. Trey M., 186 Wn.2d at 905.
Credibility determinations are made by the trier of fact and are not subject to review. Id.
Circumstantial and direct evidence are equally reliable. Id. We apply this standard to the
reasonable fear requirement.
However, because the true threat requirement implicates the First Amendment, we apply
a heightened review for that requirement. Kilburn, 151 Wn.2d at 49. When assessing whether a
statement is a true threat, we must engage in an independent review of the crucial facts that
involve the legal determination of whether the speech is unprotected. Id. at 52. This review
also may require us to look to the factual context in which the statement was made. Id. But we
still defer to the fact finder on issues of credibility. Id. at 50.
3. True Threat Analysis
The question here is whether the State presented sufficient evidence that Mylan’s threats
to kill Hamilton-Ross were made in a context or under such circumstances that a reasonable
person would foresee that it would be interpreted as a serious expression of an intention to kill
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him. See Trey M., 186 Wn.2d at 894. The defendant’s demeanor is a key factor in making this
determination. Id. at 906-07.
Here, Mylan’s demeanor and actions provide a sufficient basis for concluding that
Mylan’s statements constituted a true threat. Mylan was angry and agitated, repeatedly
threatened to kill Hamilton-Ross, and accompanied those threats with racial slurs. Mylan then
chased Hamilton-Ross around the parking lot, again threatening to kill him. Mylan told
Hamilton-Ross that he had been to jail and was not afraid of going back.
Based on an independent review of the crucial facts, we hold that there was sufficient
evidence to establish that Mylan’s threat to kill Hamilton-Ross was a true threat.
4. Reasonable Fear Analysis
We next consider whether the State presented sufficient evidence that Mylan’s threat to
kill Hamilton-Ross placed him in reasonable fear that he would carry out his threat to kill him.
RCW 9A.46.020(1)(b). The question here is whether there was evidence that Hamilton-Ross
subjectively feared that Mylan’s threats would be carried out and whether that fear was
objectively reasonable. See Cross, 156 Wn. App. at 582.
Here, Hamilton-Ross testified that he did not feel safe around Mylan and that he took his
threats very seriously. Hamilton-Ross also was afraid that Mylan had something in his backpack
that would assist in carrying out the threat. He testified that he thought Mylan was angry enough
to hurt and kill him. Hamilton-Ross’s testimony supports the inference that he subjectively
feared that Mylan would carry out the threat to kill him.
Viewing the evidence in the light most favorable to the State, Hamilton-Ross’s fear was
objectionably reasonable. Mylan was angry and agitated, he incessantly threated to kill
10 No. 57107-2-II
Hamilton-Ross, he reached into his backpack where he might have had a weapon, and he chased
Hamilton-Ross outside of the gas station. Mylan was banging on and destroying equipment and
told Hamilton-Ross that he had been to jail and was not afraid of going back.
Mylan argues that Hamilton-Ross’s fear was not objectively reasonable because
Hamilton-Ross testified that he served in the Marine Corps and he stood up for himself by
yelling back at Mylan. But these actions are not inconsistent with reasonable fear.
The evidence supports the inference that Hamilton-Ross’s fear that Mylan would carry
out the threats to kill him was objectively reasonable.
5. Summary
Drawing all inferences in the State’s favor, a rational trier of fact could have concluded
that Mylan’s threats to kill Hamilton-Ross were true threats and that those threats placed
Hamilton-Ross in reasonable fear that the threats would be carried out. Accordingly, we hold
that the State presented sufficient evidence to support Mylan’s conviction of harassment with a
threat to kill.
B. ADMISSIBILITY OF PREARREST STATEMENTS
Mylan argues that the trial court erred in failing to suppress the statements he made to
law enforcement officers before he received the Miranda warnings. We disagree.
1. Failure to Enter Written Findings
Initially, Mylan and the State agree that the trial court failed to enter findings of fact and
conclusions of law after the CrR 3.5 hearing. Mylan argues that we should remand for entry of
findings, but the State argues that even without the written findings, the trial court’s oral findings
are sufficient to enable review. We agree with the State.
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The purpose of a CrR 3.5 hearing is to prevent “the admission involuntary, incriminating
statements.” State v. Williams, 137 Wn.2d 746, 751, 975 P.2d 963 (1999). Under CrR 3.5, the
trial court must conduct an admissibility hearing before admitting a defendant’s statement into
evidence. CrR 3.5(c) requires the trial court to enter written findings of fact and conclusions of
law after a CrR 3.5 hearing. Failure to enter written findings and conclusions after a CrR 3.5
hearing is error. State v. Elkins, 188 Wn. App. 386, 396, 353 P.3d 648 (2015). However, the
failure to enter written findings and conclusions following a CrR 3.5 hearing is harmless error if
the oral findings are sufficient to enable appellate review. Id.
Here, the trial court in its oral ruling specifically stated what facts it was finding and
relying on in order to reach its decision. The court found that (1) Mylan initiated police contact
by waving down Ejde; (2) he openly spoke to Ejde and was free to leave during that interaction;
(3) at no time did any of the police cars have their lights or sirens on; (4) although Chesney
asked him some questions, Mylan was not under arrest in any way that would require Miranda
warnings; and (5) Mylan made his comments to the officers freely and voluntarily.
We hold that these findings and the trial courts conclusion that the statements were
admissible are sufficient for appellate review.
2. Custodial Interrogation
Mylan argues that he was subjected to custodial interrogation before he was given his
Miranda warnings. We disagree.
a. Legal Principles
The Fifth Amendment to the United States Constitution states that “[n]o person ... shall
be compelled in any criminal case to be a witness against himself.” Article I, section 9 of the
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Washington Constitution states “[n]o person shall be compelled in any criminal case to give
evidence against himself.” “Both provisions guarantee a defendant the right to be free from self-
incrimination, including the right to silence.” State v. Pinson, 183 Wn. App. 411, 417, 333 P.3d
528 (2014).
Miranda warnings are required when a person in custody is subjected to custodial
interrogation. State v. Mayer, 184 Wn.2d 548, 556, 362 P.3d 745 (2015). A person is in custody
when their freedom of action has been reduced in such a way as to resemble a formal arrest.
State v. Escalante, 195 Wn.2d 526, 533, 461 P.3d 1183 (2020). The relevant inquiry for
determining whether a person is in custody is “an objective one that asks how a reasonable
person in the suspect’s position would have understood the circumstances.” Id.
To determine whether a reasonable person in the suspect’s position would feel restrained to the degree associated with formal arrest, a court examines the totality of the circumstances. Relevant circumstances may include the nature of the surroundings, the extent of police control over the surroundings, the degree of physical restraint placed on the suspect, and the duration and character of the questioning.
Id. at 533-34.
We review challenged findings of fact entered after a CrR 3.5 hearing for substantial
evidence and review de novo whether the trial court's conclusions of law are supported by its
findings of fact. State v. Rosas-Miranda, 176 Wn. App. 773, 779, 309 P.3d 728 (2013).
b. Analysis
Here, Ejde did not detain Mylan. Instead, Mylan waved down Ejde and wanted to talk
with him. Ejde did not activate his lights. Ejde was by himself when he contacted Mylan, and
stood eight to ten feet away. Ejde did not tell Mylan at any point that he was not free to leave,
13 No. 57107-2-II
and that if he tried to walk away, Ejde probably would have let him. The trial court’s findings
support the conclusion that Ejde’s conversation with Mylan was not custodial.
When Chesney arrived, he did not activate his lights and did not place Mylan in
handcuffs. Other officers were present, but they stood eight to 10 feet away. Chesney engaged
in a conversion with Mylan, but there was no indication that Mylan was not free to go. The trial
court’s findings support the conclusion that Chesney’s conversation with Mylan was not
custodial.
We hold that the trial court did not err in finding that Mylan’s statements to Chesney did
not result from a custodial interrogation and were admissible.
C. ADMISSION OF 911 CALLS
Mylan argues that the trial court’s admission of the 911 calls violated the confrontation
clause. We disagree.
1. Legal Principles
The confrontation clause of the Sixth Amendment to the United States Constitution and
article I, section 22 of the Washington Constitution provide that accused persons have the right
to confront witnesses against them. The confrontation clause precludes the admission of
“testimonial” out-of-court statements if the declarant is unavailable and the defendant had no
prior opportunity to cross-examine the declarant. State v. Burke, 196 Wn.2d 712, 725, 478 P.3d
1096, cert. denied, 142 S. Ct. 182 (2021). We review confrontation clause challenges de novo.
Id.
We use the primary purpose test to determine whether out-of-court statements are
testimonial. Id. at 726. “Statements are testimonial when they are made to establish past facts in
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order to investigate or prosecute a crime.” Id. However, statements made for another primary
purpose are nontestimonial. Id. at 727. When the primary purpose of a statement is to “respond
to an ongoing emergency, for example, ‘it’s purpose is not to create a record for trial and thus is
not within the scope of the Clause.’ ” Id. at 726 (quoting Michigan v. Bryant, 562 U.S. 344, 370,
131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011)). The Supreme Court in Burke stated,
Statements made to assist police in addressing an ongoing emergency is a well- established nontestimonial purpose. For example, frantic statements to a 911 emergency operator describing the identity of an assailant in a domestic disturbance in progress were nontestimonial because the declarant was seeking help in the face of immediate danger.
196 Wn.2d at 727. In addition, statements made to persons other than law enforcement officers
are less likely to be deemed testimonial. Id. at 728.
In determining whether a statement is testimonial, “we must objectively evaluate the
statements and actions of both the declarant and the individual who hears the statements in light
of the circumstances in which their conversation occurred.” Id. at 726.
2. Analysis
Objectively viewing the statements made to the 911 operator by Berkompas and Siva in
the light of the circumstances, we hold that their statements were nontestimonial. The primary
purpose of each of their statements was to assist in an ongoing emergency.
Berkompas’s statements to the 911 operator described the incident as it was happening.
He gave operators a description of Mylan as he was in the gas station yelling at Hamilton-Ross
and banging on equipment. Mylan could be heard in the background of the call. In addition, this
statement was made to a 911 operator, not to the police.
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Similarly, Siva’s statements to the 911 operator described the ongoing altercation
occurring outside of the restroom. She reported that she could hear men yelling at each other and
one of them was threatening the other. Siva could not give a description of what Mylan looked
like because she was locked in the restroom with her young son, but she was describing what she
could hear through the door. She even described to the operator when things got quiet again
because she thought Mylan had left the gas station.
Because the 911 calls described an ongoing emergency, we hold that they were
nontestimonial and the trial court’s admission of the statements did not violate the confrontation
clause.
D. ADMISSION OF BODY CAMERA FOOTAGE
Mylan argues that the trial court erred in admitting Chesney’s body camera footage,
which included Mylan’s statements about being in prison. We decline to address this issue.
Under ER 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith.” However, this
evidence may be admissible “for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b).
A failure to object that evidence is inadmissible under ER 404(b) waives any claimed
error on appeal. State v. Powell, 166 Wn.2d 73, 82, 206 P.3d 321 (2009). “We adopt a strict
approach because trial counsel’s failure to object to the error robs the court of the opportunity to
correct the error and avoid a retrial.” Id.
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Here, Mylan did not object to the admission of the body camera footage and did not
reference ER 404(b) in the trial court. Accordingly, we decline to consider Mylan’s ER 404(b)
argument because he did not preserve the issue at trial.
E. INEFFECTIVE ASSISTANCE OF COUNSEL
Mylan argues that he was denied effective assistance because his defense counsel failed
to request a limiting instruction for the admission of the body camera footage. We disagree.
Ineffective assistance of counsel claims arise from the Sixth Amendment to the United
States Constitution and article I, section 22 of the Washington Constitution. State v. Vazquez,
198 Wn.2d 239, 247, 494 P.3d 424 (2021). To prevail on an ineffective assistance claim, the
defendant must show both that (1) defense counsel’s representation was deficient and (2) the
deficient representation prejudiced the defendant. Id. at 247-48. Representation is deficient if,
after considering all the circumstances, it falls below an objective standard of reasonableness.
Id. Prejudice exists if there is a reasonable probability that, but for counsel’s errors, the result of
the proceeding would have differed. Id. at 248.
We apply a strong presumption that defense counsel’s performance was reasonable. Id.
at 247. Defense counsel’s conduct is not deficient if it was based on legitimate trial strategy or
tactics. Id. at 248. To rebut the strong presumption that counsel’s performance was effective,
the defendant bears the burden of establishing the absence of any legitimate strategic or tactical
reason explaining defense counsel’s conduct. Id.
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Here, Mylan would have been entitled to an ER 404(b) limiting instruction if defense
counsel had requested one. If evidence of a defendant’s prior bad acts is admissible for a proper
purpose, the defendant is entitled to an appropriate limiting instruction. State v. Gresham, 173
Wn.2d 405, 423, 269 P.3d 207 (2012). But Mylan did not request a limiting instruction on the
ER 404(b) evidence. And the trial court has no duty to give an ER 404(b) limiting instruction
sua sponte. State v. Russell, 171 Wn.2d 118, 123-24, 249 P.3d 604 (2011) (citing ER 105).
We generally presume that defense counsel’s choice not to request a limiting instruction
was a tactical decision to avoid drawing further attention to the evidence, and therefore we place
the burden on the defendant to rebut this presumption. State v. Yarbrough, 151 Wn. App. 66, 90-
91, 210 P.3d 1029 (2009). Here, Mylan does not meet his burden of establishing the absence of
any legitimate strategic or tactical reason explaining his defense counsel’s conduct. Mylan’s
statement did not reveal the nature of his previous offenses, and defense counsel may have
decided to forgo a limiting instruction to avoid reemphasizing the fact that Mylan previously was
in prison.
Because defense counsel’s failure to request a limiting instruction may have been a
legitimate trial tactic, Mylan does not show that his trial counsel’s performance fell below an
objective standard of reasonableness. Accordingly, Mylan’s ineffective assistance claim fails.
F. CUMULATIVE ERROR
Mylan argues that cumulative errors throughout the trial prevented him from having a fair
trial. We disagree.
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Under the cumulative error doctrine, the defendant must show that the combined effect of
multiple errors requires a new trial. State v. Clark, 187 Wn.2d 641, 649, 389 P.3d 462 (2017).
The cumulative error doctrine may warrant reversal, even if each error standing alone would
otherwise be considered harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006).
This doctrine does not apply when “the errors are few and have little or no effect on the outcome
of the trial.” Id.
Here, Mylan has not demonstrated that any error denied him a fair trial. Therefore, we
hold that the cumulative error doctrine is inapplicable.
G. SCRIVENER’S ERROR
Mylan argues, and the State concedes, that his judgment and sentence contains a
scrivener’s error regarding his offender score and that this court should remand to correct it. We
accept the State’s concession.
At sentencing, the trial court agreed with the State that Mylan’s offender score was 10.
However, the judgment and sentence showed that Mylan’s offender score as 11. We remand to
the trial court to amend the judgment and sentence to correct this error.
CONCLUSION
We affirm Mylan’s conviction, but we remand for the trial court to correct the scrivener’s
error in the judgment and sentence regarding Mylan’s offender score.
19 No. 57107-2-II
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.
MAXA, P.J.
We concur:
VELJACIC, J.
PRICE, J.