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STATE OF WASHINGTON, No. 78037-9-1 Respondent, DIVISION ONE V. UNPUBLISHED OPINION ARIANE RE JEFFERSON,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