Filed Washington State Court of Appeals Division Two
May 25, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II STATE OF WASHINGTON, No. 54120-3-II
Respondent,
v. UNPUBLISHED OPINION
DONALD GEORGE IV,
Appellant.
MAXA, P.J. – Donald George IV appeals his convictions of second degree unlawful
possession of a firearm, possession of a stolen firearm, second degree identity theft, and unlawful
possession of a controlled substance. The convictions arose from an incident in which, during a
traffic stop, George jumped out of a moving vehicle and ran away. Based on a brief glimpse of
the fleeing passenger, the deputy making the traffic stop believed that George was a different
individual who had an outstanding felony warrant. After apprehending George, the deputy
learned that he was mistaken. However, he found a gun, multiple credit cards, mail, and a bag of
pills on the ground where George had fallen.
We hold that (1) the trial court did not err in denying George’s motion to suppress
because the deputy had a reasonable, articulable suspicion that the fleeing passenger was the
person subject to a warrant, (2) the trial court did not err in limiting George’s cross-examination
of the deputy because the judge’s exclusion of his testimony in an earlier case was not No. 54120-3-II
necessarily based on a finding that he was being untruthful, (3) there was sufficient evidence to
support the identity theft conviction because the evidence supported a reasonable inference that
George intended to commit a crime with the financial information he possessed, (4) George’s
conviction of unlawful possession of a controlled substance must be vacated under State v.
Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), and (5) George’s SAG claims have been addressed
by his appellate counsel and they have no merit.
Accordingly, we affirm George’s convictions of second degree unlawful possession of a
firearm, possession of a stolen firearm, and second degree identity theft, but we reverse his
conviction of unlawful possession of a controlled substance and remand for the trial court to
vacate that conviction and for resentencing.
FACTS
The Incident
In March 2018, Kristie Lopez-Hopkins returned home from work to discover that her
home had been burglarized. Among other things, she was missing a portable, locked gun safe.
The safe had contained a loaded handgun, a number of credit cards in her name and her former
husband’s name, and a letter addressed to her that contained a credit card PIN number and the
last four digits of an account number.
On the same day that Lopez-Hopkins’s home had been burglarized, Pierce County
Sheriff’s Deputy Seth Huber activated his emergency lights to stop a car that had turned without
signaling properly. As the vehicle was coming to a stop but still was moving, a passenger later
identified as George jumped out of the car and started running away.
Huber got a brief glimpse of the fleeing passenger’s face for approximately one second
from 30 to 40 feet away. He believed that this person was someone that he was familiar with,
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John Ironnecklace, who had an outstanding felony warrant. Huber had contacted and arrested
Ironnecklace many times and was 100 percent sure that the person was Ironnecklace. And Huber
was actively looking for Ironnecklace because of the warrant.
Huber stopped his vehicle and chased after George while identifying himself as a police
officer and ordering George to stop and get on the ground. George refused to obey Huber’s
commands and continued to run away. Huber had closed the gap on George when he observed
George reach into his jacket pocket for a gun. George lost his footing and fell to the ground.
Huber fell on top of him. The chase lasted approximately four seconds and covered 50 to 60
feet. At that point, Huber still believed that the person he was chasing was Ironnecklace and he
called him “Johnny” while they were on the ground.
George pushed up and back against Huber and threw a handgun about five to six feet
away. Huber eventually subdued him and placed him into handcuffs. While taking George back
to his police vehicle, Huber realized that he was not Ironnecklace.
Huber retrieved the loaded handgun from where George had thrown it. He also found 10
credit cards not in George’s name, a letter not addressed to George that stated a credit card PIN
number and the last four digits of an account number, and a bag of pills where George and Huber
landed on the ground. The credit cards and mail belonged to Lopez-Hopkins and her former
husband.
The State charged George with second degree unlawful possession of a firearm, unlawful
possession of a controlled substance, first degree burglary, possession of a stolen firearm, and
second degree identity theft.
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CrR 3.6 Hearing
George filed a motion to suppress all items discovered as a result of his seizure and
detention. At the CrR 3.6 hearing, Huber testified about the events that occurred on the day of
the incident and his strong belief that he was pursuing Ironnecklace, not George.
Huber testified that Ironnecklace was a 44-year-old man with tattoos on his neck. George
was a 26-year-old man and had no visible tattoos. According to Huber, both Ironnecklace and
George had similar hair color, hair style, and skin tone. Both men were Native American.
Huber noted that George was a drug addict, which can cause a person to look older than his or
her actual age.
The State also introduced George’s booking photos from the day of the seizure and arrest
and Ironnecklace’s booking photos from five weeks earlier. Huber testified that Ironnecklace’s
booking photos accurately reflected what Ironnecklace looked like and who he believed he was
pursuing on the day of the incident. The trial court found that George and Ironnecklace appeared
quite similar.
The trial court found Huber’s testimony to be credible, denied George’s motion to
suppress, and entered findings of fact and conclusions of law. The court concluded that George
was seized for purposes of a Terry1 stop at the point where Huber identified himself as a police
officer and ordered George to stop and to get on the ground. The court also concluded that under
the circumstances, Huber’s belief that he was pursuing Ironnecklace was reasonable and rose to
the level of reasonable suspicion. The court emphasized that Huber had to make a split second
decision whether to chase the fleeing passenger, and he did not have time to “study his face, ears,
hair, or tattoos, or to take any action from his vantage point to confirm his suspected
1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
4 No. 54120-3-II
identification.” Clerk’s Papers at 39. As a result, the court concluded that Huber conducted a
lawful Terry stop based on his mistaken belief that the person was Ironnecklace.
The court further determined that after Huber realized that George was not Ironnecklace,
the Terry seizure remained justified to investigate George’s flight and the various items
recovered at the scene.
Jury Trial
The State filed a motion in limine to exclude evidence regarding an unrelated case in
2014, in which the judge granted a motion to suppress Huber’s testimony. In the 2014 case,
Huber made inconsistent statements regarding a traffic stop that he conducted. Although the
judge excluded the testimony, she did not make a formal finding that Huber was not credible.
George sought to introduce the 2014 judge’s ruling to impeach Huber and to attack his
credibility. The trial court reserved ruling on the State’s motion after it discussed in depth why
the evidence likely could not be introduced for impeachment purposes. The court stated that it
would reconsider the issue if Huber’s credibility was brought into question.
At trial, Huber and Lopez-Hopkins testified to the events as described above. George did
not testify.
Both Huber’s attorney and George’s attorney asked Huber questions about
inconsistencies relating to whether he or another officer who arrived at the scene actually located
and recovered the credit cards, mail, and bag of pills. Huber stated that he found the items, while
the other officer’s police report stated that the other officer found them.
The State conceded that there was insufficient evidence to support the burglary charge
and the trial court dismissed that charge. The jury convicted George of second degree unlawful
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possession of a firearm, possession of a stolen firearm, second degree identity theft, and unlawful
possession of a controlled substance.
The court determined that George’s offender score was 9+, based on multiple prior felony
convictions and three current felony convictions. One of the prior convictions was for attempted
unlawful possession of a controlled substance. The court sentenced George to the bottom of the
standard range on possession of a firearm and possession of a stolen firearm convictions, to run
consecutively, the bottom of the standard range on the possession of a controlled substance
conviction, and the top of the standard range on the possession of a controlled substance and
identity theft convictions.
George appeals his convictions.
ANALYSIS
A. MOTION TO SUPPRESS
George argues that the trial court should have granted his motion to suppress because it
was unreasonable to seize him based on a fleeting, distant glimpse of his face absent any other
facts or circumstances to support Huber’s belief that George was Ironnecklace. We disagree.
1. Standard of Review
When evaluating a denial of a motion to suppress evidence, we determine whether
substantial evidence supports the trial court’s findings of fact and review de novo the trial court’s
conclusions of law based on those findings. State v. Tysyachuk, 13 Wn. App. 2d 35, 42, 461
P.3d 403 (2020). Evidence is substantial when it can persuade a fair-minded person of the truth
of the stated premise. Id. Unchallenged findings of fact are treated as verities on appeal. Id.
6 No. 54120-3-II
In making a substantial evidence determination for a motion to suppress, we defer to the
trial court’s evaluation of the persuasiveness of the evidence and resolution of any conflicting
testimony. Id.
2. Legal Principles
The Fourth Amendment to the United States Constitution and article I, section 7 of the
Washington Constitution protect a person from warrantless seizures. Tysyachuk, 13 Wn. App.
2d at 43. If a law enforcement officer seizes a person without a warrant, the State bears the
burden of showing that the warrantless seizure falls within one of the carefully drawn exceptions
to the warrant requirement. Id.
One established exception is a brief investigative detention of a person, also known as a
Terry stop. State v. Weyand, 188 Wn.2d 804, 811, 399 P.3d 530 (2017). Under this exception,
an officer may briefly detain a person for questioning without a warrant if the officer has a
reasonable suspicion based on specific and articulable facts that the person has been or is about
to be engaged in criminal activity. Id.
We look at the totality of the circumstances to determine the lawfulness of an
investigative stop. Tysyachuk, 13 Wn. App. 2d at 43. This includes looking at the officer’s
professional training and experience, the location of the stop, the conduct of the suspect detained,
the officer’s purpose of the stop, and the extent of physical intrusion on the suspect’s liberty. Id.
The focus of the analysis is on what the officer knew at the inception of the stop. Id. Whether
an officer had justification for a warrantless investigative stop or if the stop was unconstitutional
is a question of law that we review de novo. Tysyachuk, 13 Wn. App. 2d at 44.
In State v. Smith, the Supreme Court addressed the arrest of a person who officers
thought was subject to an arrest warrant but turned out to be someone else. 102 Wn.2d 449, 451-
7 No. 54120-3-II
52, 688 P.2d 146 (1984). The court stated, “Where the warrant is constitutionally valid, the
seizure of an individual other than the one against whom the warrant is outstanding is valid if the
arresting officer (1) acts in good faith, and (2) has reasonable, articulable grounds to believe that
the suspect is the intended arrestee.” Id. at 453-54. When there is doubt about the correct
identity of the subject of the warrant, the officer must make immediate reasonable efforts to
discover whether the warrant applied to the detained person. Id. at 454.
In Smith, officers were on the lookout for a person described as a 16-year-old brown-
haired white male who was 5 feet 10 inches tall and weighed 145 pounds and had distinctive
tattoos on his hands. Id. at 451. Officers saw a young person who met this general description,
detained him, and searched him. Id. Only after the search did they check his hands and realize
that he did not have the described tattoos, and they eventually determined that he was not the
intended arrestee. Id. at 452.
The court emphasized that the mere fact that the seized person matches a general physical
description of the person subject to the arrest warrant does not meet the standard of reasonable,
articulable grounds to believe that the suspect is the intended arrestee. Id. at 454. The court
determined that the arrest was unlawful in part because the fact that both the suspect and the
intended arrestee were white males with brown hair and similar heights and weights was not
sufficient. Id. at 454-55. The court also noted that the officers made no attempt to verify the
specific information about the intended arrestee’s tattoos before they made the arrest. Id. at 454.
3. Analysis
George argues that this case is like Smith because the only fact supporting Huber’s belief
that George was Ironnecklace was that they fit the same general description. He claims that the
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facts of this case are even weaker than in Smith because although both George and Ironnecklace
were Native American, George was 20 years younger and had no tattoos.
However, three key facts distinguish this case from Smith. First, Huber did not pursue an
individual who merely matched a general description of an unknown person who was subject to
an arrest warrant. He personally knew Ironnecklace and knew what Ironnecklace looked like.
Based on that knowledge, he was 100 percent sure that the fleeing passenger was Ironnecklace.
And in fact, the trial court made an unchallenged finding that the day of the incident George and
Ironnecklace looked quite similar.
Second, unlike in Smith, Huber did not have time to verify whether or not the fleeing
passenger really was Ironnecklace. As the trial court pointed out, Huber had to make a split
second decision whether to pursue the passenger who he believed had a warrant for his arrest.
Third, here the passenger attempted to run away in response to a routine traffic stop.
Flight is one factor to consider when determining whether reasonable suspicion existed. State v.
Howerton, 187 Wn. App. 357, 375, 348 P.3d 781 (2015). And although flight alone may not be
sufficient to detain someone, the passenger’s actions provided at least some corroboration that
the person was Ironnecklace and that he was fleeing because he was subject to an arrest warrant.
In addition, there is no question here that Huber acted in good faith, the first requirement
in Smith. The trial court made an unchallenged finding that Huber was 100 percent sure that the
fleeing person was Ironnecklace, and Huber even called the person by Ironnecklace’s first name
when he apprehended him.
We conclude that under the totality of the circumstances, Huber had a reasonable,
articulable suspicion that the fleeing passenger was Ironnecklace. The fact that he made a good
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faith mistake does not invalidate the detention. Therefore, we hold that the trial court did not err
in denying his suppression motion.
B. EXCLUSION OF IMPEACHMENT EVIDENCE
George argues that he was deprived of his ability to present a defense because the trial
court excluded evidence regarding the exclusion of Huber’s testimony in a prior case where a
traffic stop had led to an arrest. We disagree.
1. Legal Principles
The confrontation clause of the Sixth Amendment and article I, section 22 guarantee the
right of a criminal defendant to present a defense and specifically to confront adverse witnesses
through cross-examination. State v. Lile, 188 Wn.2d 766, 781-82, 398 P.3d 1052 (2017). But a
criminal defendant does not have an absolute right of cross-examination. Id. at 782. This right is
“limited by general considerations of relevance.” State v. Darden, 145 Wn.2d 612, 621, 41 P.3d
1189 (2002). A criminal defendant does not have a constitutional right to present irrelevant
evidence. State v. Orn, 197 Wn.2d 343, 352, 482 P.3d 913 (2021).
When evaluating if the excluded evidence violates the defendant’s constitutional right to
present a defense, we weigh the State’s interest in excluding evidence against the defendant’s
need for the information sought to be admitted. State v. Arndt, 194 Wn.2d 784, 812, 453 P.3d
696 (2019).
Under ER 401, evidence is relevant when it has “any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Irrelevant evidence is not admissible. ER 402.
Under ER 608(b), a party may – at the trial court’s discretion – cross-examine a witness
regarding a specific instance of the witness’s prior conduct if the conduct is probative of the
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witness’s truthfulness or untruthfulness. When exercising its discretion under ER 608(b), “ ‘the
trial court may consider whether the instance of misconduct is relevant to the witness’ veracity
on the stand and whether it is germane or relevant to the issues presented at trial.’ ” Lile, 188
Wn.2d at 783 (quoting State v. O’Connor, 155 Wn.2d 335, 349, 119 P.3d 806 (2005)).
We review a trial court’s evidentiary rulings for abuse of discretion. Arndt, 194 Wn.2d at
797. This standard also applies to a trial court’s limitation on the scope of cross-examination.
State v. Lee, 188 Wn.2d 473, 486, 396 P.3d 316 (2017). An abuse of discretion occurs when the
trial court’s decision is manifestly unreasonable or is based on untenable grounds or reason. Id.
However, we review de novo whether an evidentiary ruling violated the defendant’s right to
present a defense. Arndt, 194 Wn.2d at 797-98.
“Violations of the rights to present a defense and to confront adverse witnesses at trial are
subject to constitutional harmless error review.” Orn, 197 Wn.2d at 359. Under this standard,
the State must prove beyond a reasonable doubt that the verdict would have been the same
without the error. Id.
2. Analysis
At trial, George sought to introduce evidence regarding an unrelated case from 2014 in
which the judge granted a motion to suppress Huber’s testimony based on factual discrepancies
concerning a traffic stop that he conducted. George stated that he planned to ask Huber a general
question regarding whether or not his credibility ever before had been questioned by a judge.
In the 2014 motion to suppress, the judge found that Huber’s testimony about the driver
and the traffic stop had inconsistencies. The judge stated that she had concerns about his
credibility based on these inconsistent statements in his testimony. But the judge never made a
specific finding that Huber was not credible or that there was any government misconduct. And
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there was no determination whether Huber lied in his previous testimony or whether he simply
had faulty memory about the circumstances surrounding that specific traffic stop.
As a result, the judge’s 2014 ruling to suppress Huber’s testimony was not necessarily
probative of Huber’s truthfulness as required under ER 608(b). Inconsistent statements alone do
not support the conclusion that Huber was being untruthful.
George relies on State v. York, 28 Wn. App. 33, 621 P.2d 784 (1980). In that case, the
court held that the trial court erred by preventing the defendant from attacking the credibility of
an undercover investigator with unfavorable evidence of his previous undercover employment
from which he later was dismissed. Id. at 37. The court stated that the trial court’s error was
prejudicial because credibility was “the very essence of the defense” and “[t]he prosecution’s
ability to argue there was nothing negative in [the witness’s] background may have been the
single factor which caused the jury to believe him rather than the other witnesses.” Id. at 35-36.
George argues that the trial court erred when it excluded the evidence relating to Huber’s
prior testimony in 2014 because Huber was the most important witness who testified against him
and that he could only attack Huber’s credibility with the excluded evidence. But here, the
proffered evidence had limited impeachment value because as stated above, exclusion of Huber’s
previous testimony did not necessarily reflect untruthfulness. Because of the ambiguous nature
of the 2014 proceeding, we conclude that the trial court’s exclusion of this evidence was not an
abuse of discretion because the evidence was irrelevant under ER 402 and was not probative of
truthfulness under ER 608(b).
The question then is whether the State’s interest in excluding inadmissible evidence is
outweighed by George’s need for the excluded evidence. Arndt, 194 Wn.2d at 812. In Arndt,
the court found no violation of the right to present a defense when the defendant “was able to
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present relevant evidence supporting her central defense theory.” Id. at 814. The situation here
is similar. George was able to cross-examine Huber about the alleged inconsistencies regarding
who actually discovered the credit cards, mail, and drugs. Specifically, George had the
opportunity to highlight the fact that Huber believed that he picked up the credit cards, mail, and
bag of pills from the ground, while the police report showed that another officer potentially
picked them up instead. This examination supported George’s theory that Huber’s testimony
about what he found after detaining George was not credible.
Accordingly, we hold that the trial court did not err when it excluded evidence of Huber’s
previous testimony in an unrelated case.
C. SUFFICIENCY OF EVIDENCE – IDENTITY THEFT
George argues that the State failed to prove that he had the intent to commit second
degree identity theft because the evidence showed only that he had possession of Lopez-
Hopkins’s credit cards and related mail. We disagree.
When evaluating the sufficiency of evidence for a conviction, we view the evidence in
the light most favorable to the State and ask whether a rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. State v. Homan, 181 Wn.2d 102, 105, 330
P.3d 182 (2014). As part of the test for the sufficiency of evidence, we assume the truth of the
State’s evidence and all reasonable inferences drawn from the evidence. Id. at 106. These
inferences must be drawn in the State’s favor and strongly against the defendant. Id. And we
defer to the fact finder’s resolution of conflicting testimony and evaluation of the evidence’s
persuasiveness. Id. Circumstantial evidence is as equally reliable as direct evidence. State v.
Farnsworth, 185 Wn.2d 768, 775, 374 P.3d 1152 (2016).
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RCW 9.35.020(1) and (3) provide that a person, under circumstances that do not amount
to first degree identity theft, may not “knowingly obtain, possess, use, or transfer a means of
identification or financial information of another person . . . with the intent to commit . . . any
crime.” To convict, the State is not required to prove actual use of the financial information or
the specific crime that the defendant intended to commit. See State v. Fedorov, 181 Wn. App.
187, 197-98, 324 P.3d 784 (2014) (specific crime); State v. Sells, 166 Wn. App. 918, 924, 271
P.3d 952 (2012) (actual use).
When a crime includes possession and intent as separate elements, intent cannot be
inferred from mere possession alone. State v. Vasquez, 178 Wn.2d 1, 8, 309 P.3d 318 (2013).
But evidence of possession alongside some slight corroborating evidence may be sufficient to
infer intent. Id. Intent may only be deduced “ ‘if the defendant’s conduct and surrounding facts
and circumstances plainly indicate such an intent as a matter of logical probability.’ ” Id.
(quoting State v. Woods, 63 Wn. App. 588, 591, 821 P.2d 1235 (1991)).
In Vasquez, the Supreme Court reversed a conviction for fraud because possession of
forged identification cards alone was insufficient to prove the defendant had the intent to injure
or defraud. 178 Wn.2d at 14-16. In that case, a security guard stopped the defendant for
shoplifting and found a fake social security and permanent resident cards with his name on them.
Id. at 4. The defendant willingly told the security guard that he purchased the forged cards from
a friend. Id. at 5. The court determined that the defendant’s ready admission that the cards were
forged was ambiguous at best and could not support the basis for inferring the necessary intent to
defraud the security guard. Id. at 15-16.
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George does not challenge whether there is sufficient evidence to prove that he
knowingly possessed another’s financial information. The only question here is whether there is
some corroborating evidence to infer that George intended to commit a crime with Lopez-
Hopkins’s financial information.
Here, the evidence is somewhat equivocal. The fact that George was apprehended with
the credit cards and a credit card activation letter along with the gun and the television on the
same day as the items that were stolen from Lopez-Hopkins’s home could suggest that George
had no intent to use the cards but just had not discarded them yet. And there was no direct
evidence that George intended to commit a crime with the cards.2
However, all that is needed to support an identity theft conviction is some slight
corroborating evidence. Vasquez, 178 Wn.2d at 8. Here, two things corroborate George’s intent
to commit a crime. First, George had possession of 10 credit cards in the names of two different
people – Lopez-Hopkins and her former husband. This fact allows an inference that George
intended to use the multiple cards unlawfully. Second, the fact that George took and retained a
letter containing activation information for one of the credit cards allows an inference that he
intended to activate one of the cards and use it.
George also argues that there was no evidence that he or the burglar specifically targeted
the credit cards and mail in the safe. However, this argument fails because the identity theft
statute does not limit its application to individuals who come into possession of another’s
financial information as a result of a specific intent to steal that information. And the State does
2 George cites and relies on an unpublished case from 2011. However, under GR 14.1(a), parties can cite to unpublished opinions only if they were issued after March 1, 2013. Therefore, we disregard that case.
15 No. 54120-3-II
not need to prove the specific crime that George intended to commit. See Fedorov, 181 Wn.
App. at 197-98.
We hold that the State presented sufficient evidence to prove beyond a reasonable doubt
that George intended to commit a crime with the financial information that he possessed.
D. POSSESSION OF A CONTROLLED SUBSTANCE
George argues in a supplemental brief that his conviction for possession of a controlled
substance should be reversed and vacated under Blake. The State concedes that this conviction
should be vacated. We reverse and remand for the trial court to vacate Banks’s conviction and
for resentencing.
In Blake, the Supreme Court held that Washington’s strict liability drug possession
statute, RCW 69.50.4013(1), violates state and federal due process clauses and therefore is void.
197 Wn.2d at 195. As a result, any conviction based on that statute is invalid. See In re Pers.
Restraint of Hinton, 152 Wn.2d 853, 857, 100 P.3d 801 (2004) (a judgment and sentence is
invalid on its face when a defendant is convicted of a nonexistent crime). And a conviction
based on an unconstitutional statute must be vacated. See State v. Carnahan, 130 Wn. App. 159,
164, 122 P.3d 187 (2005) (vacating a conviction that was based on a statute that the Supreme
Court held was unconstitutional). Therefore, George’s conviction for unlawful possession of a
controlled substance must be vacated.
In addition, a conviction based on an unconstitutional statute cannot be considered in
calculating the defendant’s offender score. See State v. Ammons, 105 Wn.2d 175, 187-88, 713
P.2d 719, 718 P.2d 796 (1986). Therefore, George’s offender score must be amended to not
include the vacated conviction and his prior conviction of attempted unlawful possession of a
controlled substance.
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Finally, without the current and prior unlawful possession of a controlled substance
convictions, George’s offender score will be lower than the offender score the trial court used at
sentencing. The lower offender score could reduce the standard range sentences for his
remaining convictions. See RCW 9.94A.510. Therefore, George is entitled to be resentenced.
E. SAG CLAIMS
George makes a number of claims in his SAG that all are premised on the trial court’s
preliminary statements that Huber’s testimony and the judge’s ruling from the 2014 motion to
suppress was not proper impeachment evidence. These claims have been addressed above or
have no merit.
1. Ineffective Assistance of Counsel
George asserts that he received ineffective assistance of counsel because his attorney (a)
did not offer any exhibits or a copy of the transcript from the 2014 hearing, (b) failed to
interview and call as a rebuttal witness the driver of the vehicle from which he jumped, and (c)
failed to call the other officer who arrived at the scene as a witness. As a result, George claims
that his right to prepare a defense was violated. We hold that these claims have no merit.
a. Legal Principles
Ineffective assistance of counsel is a constitutional error that arises from the Sixth
Amendment to the United States Constitution and article I, section 22 of the Washington
Constitution. State v. Estes, 188 Wn.2d 450, 457, 395 P.3d 1045 (2017). To prevail on an
ineffective assistance claim, the defendant must show both that (1) defense counsel’s
representation was deficient and (2) the defendant was prejudiced by the deficient representation.
Id. at 457-58. Representation is deficient if, after considering all the circumstances, it falls
below an objective standard of reasonableness. Id. at 458. There is prejudice when there is a
17 No. 54120-3-II
reasonable probability that, except for counsel’s errors, the result of the proceeding would have
been different. Id.
We apply a strong presumption that defense counsel’s representation was reasonable. Id.
Counsel’s conduct is not deficient if it was based on what can be characterized as legitimate trial
strategy or tactics. Id. Counsel’s decision whether to call a witness generally is presumed to be
a matter of trial strategy or tactics. State v. Weber, 137 Wn. App. 852, 858, 155 P.3d 947 (2007).
This presumption can be rebutted by showing that the witness was not offered at trial because
counsel failed to conduct appropriate investigations. Id.
When addressing an ineffective assistance of counsel claim, we consider only facts
contained in the record. Estes, 188 Wn.2d at 467. Specifically, we do not consider off-the-
record conversations between the defendant and defense counsel. Id.
b. Analysis
Regarding George’s claim that his attorney failed to offer any exhibits or a copy of the
transcript from the 2014 hearing, the record shows that the trial court reviewed the 2014 hearing.
The trial court there had the same material that the State provided to George. Therefore, this
claim fails.
Regarding George’s claim that his attorney should have interviewed and called the driver
of the car as a witness, the record shows that the driver fled the scene at some point between
George exiting the vehicle and Huber physically apprehending George. Therefore, it is unclear
how the driver could have contributed to George’s defense.
Regarding George’s claim that his attorney should have called the other officer who
arrived at the scene as a witness, the record shows that he did not arrive until after Huber
physically apprehended George. Therefore, he would not have been able to testify about the
18 No. 54120-3-II
initial seizure and subsequent pursuit. And George’s attorney highlighted the discrepancies
between the officer’s police report and Huber’s testimony regarding who recovered the credit
cards, mail, and bag of pills.
Finally, George claims that his attorney violated a number of rules of professional
conduct. But these claims depend on matters outside the record and as a result, we cannot
consider them in this direct appeal. Estes, 188 Wn.2d at 467.
2. Confrontation Clause Violation
George argues that the trial court erred in limiting the scope of his cross-examination of
Huber in violation of the confrontation clause because the proffered evidence was the only
impeachment evidence in his case. George’s appellate counsel already addressed this issue and
accordingly, we do not need to separately address George’s argument here. See State v.
Thompson, 169 Wn. App. 436, 493, 290 P.3d 996 (2012). And we reject this argument above.
3. Cumulative Effect
George argues that the cumulative effect of his attorney’s failure to render effective
assistance of counsel and the trial court’s error to limit the scope of his cross-examination of
Huber resulted in a violation of his due process rights.
Under the cumulative error doctrine, the defendant bears the burden to 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). Here, George fails to show ineffective assistance of counsel or any error
regarding Huber’s cross-examination. Therefore, we hold that there is no cumulative error that
warrants a new trial.
19 No. 54120-3-II
CONCLUSION
We affirm George’s convictions of second degree unlawful possession of a firearm,
possession of a stolen firearm, and second degree identity theft, but we reverse his unlawful
possession of a controlled substance conviction and remand for the trial court to vacate that
conviction and for resentencing.
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:
CRUSER, J.
VELJACIC, J.