State v. Bertrand

546 P.3d 1020, 3 Wash. 3d 116

• Court: Washington Supreme Court
• Decided: April 18, 2024
• Docket: 100,953-4
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON APRIL 18, 2024 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON APRIL 18, 2024 ERIN L. LENNON SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

) STATE OF WASHINGTON, ) ) No. 100953-4 Respondent, ) ) v. ) En Banc ) ANDREW WESLEY BERTRAND, ) ) Filed: April 18, 2024 Petitioner. ) _______________________________)

YU, J. — In this case, we take the opportunity to clarify the analysis that

applies where a defendant asserts ineffective assistance of counsel based on

counsel’s failure to propose a lesser included offense instruction. Such claims are

subject to the two-pronged test laid out in Strickland v. Washington, which requires

the defendant to show (1) “that counsel’s performance was deficient” and (2) “that

the deficient performance prejudiced the defense.” 466 U.S. 668, 687, 104 S. Ct.

2052, 80 L. Ed. 2d 674 (1984). We further clarify that although our precedent

recognizes it is “difficult” to satisfy Strickland in this context, there is no per se State v. Bertrand, No. 100953-4

rule preventing a defendant from doing so. In re Pers. Restraint of Crace, 174

Wn.2d 835, 848, 280 P.3d 1102 (2012). Instead, the difficulty of satisfying

Strickland in this context arises from the “‘presumption of effective assistance’”

inherent in the Strickland test. State v. Grier, 171 Wn.2d 17, 38, 246 P.3d 1260

(2011) (quoting State v. Hassan, 151 Wn. App. 209, 221 n.6, 211 P.3d 441

(2009)).

Appellant Andrew Bertrand was convicted of two counts of first degree

child molestation. He moved for a new trial, arguing counsel was ineffective for

failing to propose lesser included offense instructions on fourth degree assault.

The trial court denied Bertrand’s motion, ruling that although counsel was

deficient for purposes of Strickland’s first prong, Bertrand could not show

prejudice as required by Strickland’s second prong. The trial court ruled that

because the State had met its burden of proving each element of first degree child

molestation and the jury convicted Bertrand of those charges, he could not show

prejudice. We granted direct review to clarify the applicable analysis.

We reaffirm that Strickland provides the proper analytical framework. Both

prongs of the Strickland test require the defendant to overcome “a strong

presumption that the counsel [was] effective.” State v. Vazquez, 198 Wn.2d 239,

247, 494 P.3d 424 (2021). First, the deficient performance prong requires courts to

“indulge a strong presumption that counsel’s conduct falls within the wide range of

2 State v. Bertrand, No. 100953-4

reasonable professional assistance” to safeguard “the wide latitude counsel must

have in making tactical decisions.” Strickland, 466 U.S. at 689. Second, the

prejudice prong requires the defendant to overcome a “strong presumption of

reliability” in the jury’s verdict by “showing that the decision reached would

reasonably likely have been different absent [counsel’s] errors.” Id. at 696. There

is no rule that failure to propose a lesser included instruction is per se prejudicial.

Strickland’s presumptions can make it difficult for a defendant to prevail in

an ineffective assistance claim based on counsel’s failure to propose lesser

included offense instructions. Indeed, some confusion has arisen as to whether

such a claim can ever succeed in a case where sufficient evidence supports the

jury’s verdict. We recognize that our prior cases have not been entirely clear on

this point. Therefore, we now clarify that our precedent does not categorically

preclude such claims, nor can they be reduced to a sufficiency of the evidence test.

The Strickland test is not subject to “mechanical application” because the

“‘ultimate focus of inquiry must be on the fundamental fairness of the proceeding

whose result is being challenged.’” State v. Estes, 188 Wn.2d 450, 458, 395 P.3d

1045 (2017) (quoting Strickland, 466 U.S. at 696). Thus, we generally cannot

apply “per se rules” to ineffective assistance claims. State v. Cienfuegos, 144

Wn.2d 222, 229, 25 P.3d 1011 (2001). Nevertheless, the trial court’s ruling in this

case suggests a per se rule that a defendant cannot show prejudice if there is

3 State v. Bertrand, No. 100953-4

sufficient evidence supporting the jury’s verdict. Strickland’s prejudice prong does

not impose a sufficiency-of-the evidence test. Instead, each claim must be

analyzed on “a case by case basis” pursuant to the fact-intensive inquiry Strickland

requires. Id. To prevail, the defendant must demonstrate “a reasonable probability

that, but for counsel’s deficient performance, the outcome of the proceedings

would have been different.” State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177

(2009).

In this case, Bertrand cannot show he was prejudiced because even if

counsel had requested the lesser included instructions, the instructions would have

been properly denied because there were no facts to support instructions on fourth

degree assault. We therefore affirm the trial court in result on this issue. We

remand the remaining issues to the Court of Appeals for further proceedings,

without prejudice to either party.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Factual background and jury trial

C.A. and S.T. met Bertrand when he dated their mothers. The girls were

around the same age as Bertrand’s own daughter and all three girls became friends.

In January 2021, S.T. told the other two girls that Bertrand had inappropriately

touched her. After hearing S.T.’s disclosure, C.A. told the girls that Bertrand had

also inappropriately touched her. The following week, C.A.’s and S.T.’s parents

4 State v. Bertrand, No. 100953-4

reported Bertrand to law enforcement. Bertrand was ultimately charged with two

counts of first degree child molestation, and the case proceeded to a jury trial.

C.A. testified she had met Bertrand when she was 3 years old, and he began

“[s]exually touch[ing] parts of [her] body against [her] will” when she was 3 or 4

years old. 1 Verbatim Rep. of Digitally-Recorded Proc. (VRP) (Dec. 9, 2021) at

341, 345. C.A. testified the unwanted touching continued until she was 10 years

old, and Bertrand had touched her in total “[t]en or more” times. Id. at 345.

Bertrand would start by scratching her back and would then “put his hand down

[her] pants or . . . up [her] shirt.” Id. at 342. The last time this occurred, C.A. was

watching a movie at Bertrand’s house with Bertrand and his daughter. When

Bertrand’s daughter left the room, Bertrand began to scratch C.A.’s back and “put

his hand down [her] pants . . . [o]nto [her] butt.” Id. at 344. Bertrand also touched

her upper back and “by [her] breasts.” Id.

S.T. testified she met Bertrand when she was eight years old, and he had

molested her at least 10 times. She testified Bertrand would often attempt to

cuddle with her, then begin rubbing her lower back and touching “the front of [her]

chest” while they watched television on the couch together. Id. at 390. Although

S.T. “thought it was an accident at first,” S.T. came to believe that it was

intentional because Bertrand continued touching her, concentrating “more on

5 State v. Bertrand, No. 100953-4

[S.T.’s] chest” than other areas, in a way that made her feel “[u]ncomfortable.” Id.

at 390-91.

In closing, defense counsel argued the State had not met its burden of proof

beyond a reasonable doubt because C.A.’s and S.T.’s testimony was unreliable,

highlighting the “lack of evidence” and “inconsistenc[ies]” in the case. 2 VRP

(Dec. 14, 2021) at 604. Defense counsel argued the jury could not “infer from the

evidence” that the alleged molestations were sexual or unlawful, equating

Bertrand’s interactions with C.A. and S.T. to children “playing with [their] dad” by

“crawling over” and “wrestling with” him. Id. at 588. The jury found Bertrand

guilty of both charges.

B. Motion for a new trial

Before sentencing, Bertrand retained new counsel and filed a CrR 7.5 motion

for a new trial. Among other claims, Bertrand argued that his trial counsel was

ineffective for failing to request lesser included offense instructions on fourth

degree assault pursuant to State v. Stevens, 158 Wn.2d 304, 310-11, 143 P.3d 817

(2006).1 To show deficient performance, Bertrand argued that trial counsel did not

make a strategic decision by failing to pursue the fourth degree assault instructions.

In support of his motion, Bertrand filed an affidavit from trial counsel, in which

1 Stevens concerned second degree child molestation, but it applies to the first degree child molestation charges here because the only relevant difference between first and second degree child molestation is the age of the child. See RCW 9A.44.083(1), .086(1).

6 State v. Bertrand, No. 100953-4

counsel stated that his “overall trial strategy was to weaken the claims made by

C.A. and S.T. as unreliable on the whole” as well as arguing, “in part, that the

State’s testimony failed to prove that any touching rose to the definition of sexual

contact.” CP at 153, 156 (internal quotation marks omitted). Trial counsel further

stated that he did not know fourth degree assault was a lesser included offense of

child molestation, that the choice to not pursue the lesser included offense was not

strategic, and that he did not discuss the lesser included offense with Bertrand. Id.

at 155-56.

In an effort to show prejudice, Bertrand relied on the Ninth Circuit Court of

Appeals’ decision in Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015). In accordance

with the Ninth Circuit’s analysis on Strickland’s second prong, Bertrand argued

that he needed to show only a “reasonable probability” that if presented with a

lesser included offense instruction, a jury may have found him guilty of fourth

degree assault instead of child molestation. CP at 142. He argued it was

reasonably probable that a jury could have found the touchings were unwanted but

nonsexual and, therefore, would have convicted him only of fourth degree assault.

This was contrary to his argument at trial that the touchings were entirely lawful,

neither unwanted nor sexual.

The State opposed Bertrand’s motion, arguing that he could not show

deficient performance because his trial counsel had strategically pursued an “all or

7 State v. Bertrand, No. 100953-4

nothing theory” of the case. Id. at 193. The State further contended that Bertrand

was precluded from showing prejudice by this court’s opinion in Grier. In the

State’s view, Grier held that “a [d]efendant cannot [show] prejudice” from

counsel’s failure to request a lesser included offense instruction “if the [d]efendant

is convicted.” CP at 193 (emphasis added). The State further argued that

Washington courts were bound by Grier, and the Ninth Circuit’s opinion in Crace

could not overturn any of this court’s opinions. Bertrand countered with the

proposition that Crace had “overruled” this court’s decision in Grier regarding

prejudice. 2 VRP (Feb. 16, 2022) at 678-79.

The trial court denied Bertrand’s motion. As to the first Strickland prong,

the trial court ruled that Bertrand’s trial counsel was deficient, in part, because he

failed “to know the law.” 2 VRP (Mar. 2, 2022) at 723-24.

However, as to the second Strickland prong, the trial court determined that

Bertrand could not show prejudice “based upon the . . . Grier case,” determining

that even with “defective” performance by counsel, prejudice was “a non-issue.”

Id. at 734. The trial court also noted that because trial counsel had “emphasized

the lack of sexual gratification” in closing arguments, the jury “still would have

had to grapple with this issue and decide whether the State had proven the element

of sexual contact beyond a reasonable doubt,” regardless of whether the fourth

degree assault instructions were given. Id. at 724. Therefore, the trial court

8 State v. Bertrand, No. 100953-4

concluded that the instructions “would not have changed the outcome of

[Bertrand’s] trial” and did not “undermine the Court’s confidence in the two guilty

verdicts.” Id.

Bertrand was subsequently sentenced within the standard range on each

count. We granted direct review of the trial court’s ruling on the lesser included

offense instruction issue. We now seek to clarify any confusion that may have

arisen from our prior opinions and reaffirm our reliance on Strickland for

evaluating ineffective assistance of counsel claims in this context.

ISSUE

Was Bertrand’s trial counsel ineffective for failing to propose lesser

included offense instructions, such that Bertrand is entitled to a new trial?

ANALYSIS

Strickland’s two-pronged test governs our analysis. Criminal defendants are

guaranteed the right to effective assistance of counsel pursuant to the Sixth

Amendment of the United States Constitution and article I, section 22 of the

Washington State Constitution. See U.S. CONST. amend. VI; WASH. CONST. art. I,

§ 22. To prevail on a claim of ineffective assistance of counsel, a defendant must

show (1) “counsel’s representation fell below an objective standard of

reasonableness” and (2) “the deficient performance prejudiced the defense.”

Strickland, 466 U.S. at 687-88. This court has expressly adopted Strickland’s two-

9 State v. Bertrand, No. 100953-4

pronged test. State v. Bowerman, 115 Wn.2d 794, 808, 802 P.2d 116 (1990);

Cienfuegos, 144 Wn.2d at 226. Failure to show either prong “defeats” the claim.

Strickland, 466 U.S. at 700.

Performance is deficient if “it [falls] below an objective standard of

reasonableness.” State v. McFarland, 127 Wn.2d 322, 334, 899 P.2d 1251 (1995).

Defense counsel’s performance is not deficient if it is a “legitimate trial strategy or

tactic[].” Kyllo, 166 Wn.2d at 863. This court engages in “a strong presumption

that defense counsel’s performance was reasonable.” Id. at 862.

The defendant is prejudiced when “there is a reasonable probability, that, but

for counsel’s deficient performance, the outcome of the proceedings would have

been different.” Id. The “reasonable probability” standard is “lower than a

preponderance standard.” Estes, 188 Wn.2d at 458. However, the defendant must

“affirmatively prove prejudice” by showing more than a “‘conceivable effect on

the outcome.’” Id. (internal quotation marks omitted) (quoting State v. Crawford,

159 Wn.2d 86, 99, 147 P.3d 1288 (2006)). Prejudice exists when there is “a

probability sufficient to undermine [the court’s] confidence in the outcome.”

Strickland, 466 U.S. at 694.

In the Strickland prejudice inquiry, the ultimate “question is whether there is

a reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt.” Id. at 695. When reviewing prejudice, this

10 State v. Bertrand, No. 100953-4

court considers the “totality of the evidence.” Id. Additionally, this court must

“presume . . . that the judge or jury acted according to law. An assessment of the

likelihood of a result more favorable to the defendant must exclude the possibility

of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.” Id. at 694-95.

To determine whether Bertrand is entitled to a new trial, we must consider

the general standards for ineffective assistance claims, as applied to counsel’s

failure to request lesser included offense instructions. As noted above, Strickland

creates a two-pronged test, which this court has adopted for ineffective assistance

claims. Additionally, we have “reaffirm[ed] our adherence to Strickland” for

claims based on counsel’s failure to propose lesser included offense instructions.

Grier, 171 Wn.2d at 32. To prevail on such a claim, the defendant must show that

they would have been “entitled to the instruction if it had been offered.”

Cienfuegos, 144 Wn.2d at 227.

Today, we again reaffirm our adherence to Strickland and provide additional

guidance and clarification on the analysis that applies in this context. Applying

this analysis to Bertrand’s claim, we affirm the trial court in result.

A. Deficient performance based on counsel’s failure to request lesser included offense instructions

First, to satisfy Strickland’s deficient performance prong, a defendant must

show “‘that counsel made errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment.’” State v. Thomas,

11 State v. Bertrand, No. 100953-4

109 Wn.2d 222, 225, 743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 687).

The court’s “scrutiny of counsel’s performance is highly deferential.” Id. at 226.

This deference to defense counsel is important in all cases, including where

counsel fails to propose a lesser included offense instruction.

To establish deficient performance, a defendant must show that counsel’s

actions “‘fell below an objective standard of reasonableness based on consideration

of all the circumstances.’” Vazquez, 198 Wn.2d at 247-48 (quoting McFarland,

127 Wn.2d at 334-35). The defendant must overcome “a strong presumption that

counsel’s performance was reasonable,” and the court must make “every effort . . .

to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Kyllo, 166 Wn.2d at 862; Strickland, 466 U.S. at 689.

This is particularly true when counsel’s alleged error is the failure to request

lesser included offense instructions. Lesser included offense instructions are

governed by “the two-pronged Workman[2] test: ‘(1) each of the elements of the

lesser offense is a necessary element of the offense charged (legal prong) and

(2) evidence in the case supports an inference that the lesser crime was committed

(factual prong).’” State v. Avington, 2 Wn.3d 245, 258, 536 P.3d 161 (2023)

(quoting State v. Coryell, 197 Wn.2d 397, 400, 483 P.3d 98 (2021)). Although

2 State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978).

12 State v. Bertrand, No. 100953-4

such instructions are important to “protect procedural fairness and substantial

justice for the accused,” they may also carry significant risks for the accused.

Coryell, 197 Wn.2d at 412. Because of this, the decision to request a lesser

included offense instruction implicates “the wide latitude counsel must have in

making tactical decisions.” Strickland, 466 U.S. at 689.

Lesser included offense instructions are important because if a defendant is

charged with only one crime, the jury must choose between two harsh options:

either convict the defendant as charged or allow them to go free. State v.

Henderson, 182 Wn.2d 734, 736, 344 P.3d 1207 (2015). This can “create a risk

that the jury will convict the defendant despite having reasonable doubts.” Id. A

lesser included offense instruction provides a third option, allowing the jury to

reach a “compromise verdict” by convicting the defendant on a less serious offense

than the one charged by the State. Grier, 171 Wn.2d at 39.

However, the availability of a compromise verdict is not always beneficial to

the defendant. For instance, defense counsel, in consultation with the defendant,

may legitimately pursue a strategy of asserting the defendant’s complete

innocence. In such a case, a lesser included offense instruction might actually

“weaken[ ] the defendant’s claim” by suggesting that they are guilty of some

offense, even if they are not guilty of the offense charged by the State. Id. at 38.

Thus, defense counsel might reasonably choose to pursue an “all or nothing

13 State v. Bertrand, No. 100953-4

strategy,” requiring the jury to either convict the defendant as charged or acquit the

defendant entirely, without providing the option of a compromise verdict on a

lesser included offense. Id.

Due to the significant risks of pursuing an all or nothing strategy, “the

decision to exclude or include lesser included offense instructions is a decision that

requires input from both the defendant and [their] counsel.” Id. at 32. However,

the decision “ultimately rests with [trial] counsel,” and if counsel’s decision “‘can

be characterized as legitimate trial strategy or tactics, performance is not

deficient.’” Id. at 32-33 (quoting Kyllo, 166 Wn.2d at 863). Thus, “[t]he inclusion

or exclusion of lesser included offense instructions is a tactical decision for which

defense attorneys require significant latitude.” Id. at 39.

Nevertheless, in this case, the trial court ruled that Bertrand had met his

burden to prove deficient performance. The trial court’s ruling is supported by the

affidavit of Bertrand’s trial counsel, where counsel acknowledges that they did not

know fourth degree assault could be a lesser included offense of child molestation

in accordance with Stevens, 158 Wn.2d 304. CP at 155-56.

It is well established that “[t]he duty to provide effective assistance includes

the duty to research relevant statutes.” Estes, 188 Wn.2d at 460. Therefore,

“[w]hen ‘an attorney unreasonably fails to research or apply relevant statutes

without any tactical purpose, that attorney’s performance is constitutionally

14 State v. Bertrand, No. 100953-4

deficient.’” In re Pers. Restraint of Garcia-Mendoza, 196 Wn.2d 836, 844, 479

P.3d 674 (2021) (quoting In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d 91,

102, 351 P.3d 138 (2015)). In this case, because Bertrand’s trial counsel was

“required to know the law,” but “was not aware that Assault in the Fourth Degree

[could be] a lesser included offense” of child molestation, the trial court properly

concluded that counsel’s “representation on this issue was deficient.” 2 VRP (Mar.

2, 2022) at 723.

However, the dispute in this case centers on Strickland’s prejudice prong

rather than the deficient performance prong. Failure to show either prong

“defeats” an ineffective assistance claim. Strickland, 466 U.S. at 700. Therefore,

Bertrand is not entitled to a new trial unless he shows that trial counsel’s deficient

performance was prejudicial.

B. Prejudice based on counsel’s failure to request lesser included offense instructions

Attorney mistakes or errors are bound to occur in any trial, but not every

mistake will result in an “adverse effect on the defense.” Id. at 693. As a result, in

addition to deficient performance, a defendant seeking to establish ineffective

assistance of counsel must show prejudice by demonstrating that counsel’s error is

“sufficient to undermine confidence in the outcome” of the trial. Id. at 694.

This is a difficult burden to meet where counsel’s error is the failure to

propose lesser included offense instructions. Indeed, our precedent has not been

15 State v. Bertrand, No. 100953-4

entirely clear as to whether it is even possible for a defendant to show prejudice in

this context. We therefore take this opportunity to clarify that there is no per se

rule against showing prejudice in ineffective assistance claims based on counsel’s

failure to propose lesser included offense instructions. Conversely, it is also

important to note that the failure to propose a lesser included instruction is not per

se prejudicial. The determination of whether both prongs of the Strickland test are

met will turn on the facts of each case. Here, we affirm that Bertrand cannot show

prejudice on the record presented.

1. Our precedent recognizes the difficulty of satisfying Strickland’s prejudice prong in this context

To satisfy Strickland’s prejudice prong, the defendant must demonstrate “a

reasonable probability that, but for counsel’s [deficient performance], the result of

the proceeding would have been different.” Id. at 694. The “reasonable

probability” standard is “lower than a preponderance standard,” but it requires the

defendant to “affirmatively prove prejudice” by showing more than a

“‘conceivable effect on the outcome.’” Estes, 188 Wn.2d at 458 (internal

quotation marks omitted) (quoting Crawford, 159 Wn.2d at 99). Although this

standard may seem relatively simple in the abstract, it can be extremely

challenging to apply in practice, particularly in the context of lesser included

offense instructions.

16 State v. Bertrand, No. 100953-4

One of the challenges of applying Strickland in this context is that courts

“should presume, absent challenge to the judgment on grounds of evidentiary

insufficiency . . . the judge or jury acted according to law.” 466 U.S. at 694. As

reflected in the jury instructions for Bertrand’s case, well-established law requires

the jury “to return a verdict of not guilty” unless the State meets its “burden of

proving each element of each crime beyond a reasonable doubt.” CP at 77, 72; see

State v. Bennett, 161 Wn.2d 303, 307, 165 P.3d 1241 (2007) (“Instructions must

convey to the jury that the State bears the burden of proving every essential

element of a criminal offense beyond a reasonable doubt.”). Thus, Strickland

requires courts to presume that the jury found the State met its burden of proof and

lawfully reached a verdict of conviction on that basis.

As a result of this presumption, a defendant asserting ineffective assistance

of counsel cannot show prejudice by arguing the absence of a lesser included

offense instruction caused the jury to “convict the defendant despite having

reasonable doubts.” Henderson, 182 Wn.2d at 736 (emphasis added). Such an

argument may be persuasive where the trial court denies defense counsel’s request

for a lesser included offense instruction. E.g., id.; Coryell, 197 Wn.2d at 418.

However, this court concluded in Grier that such an argument is “misplaced” in a

claim that counsel was ineffective for failing to request the instruction in the first

place. 171 Wn.2d at 40.

17 State v. Bertrand, No. 100953-4

The defendant in Grier was convicted of second degree murder. Id. at 20.

This court was asked to determine whether defense counsel was ineffective for

withdrawing a request for lesser included offense instructions on first and second

degree manslaughter. At the time, we had not previously “addressed whether the

failure to offer jury instructions on lesser included offenses may amount to

ineffective assistance.” Id. at 34-35. Grier “reaffirm[ed] our adherence to

Strickland” in adjudicating such claims, but nevertheless “reject[ed] Grier’s

ineffective assistance claim under the Strickland standard.” Id. at 32.

Addressing the first Strickland prong, Grier held that counsel did not act

deficiently by deciding to forgo the lesser included offense instructions and pursue

“an all or nothing strategy [as] the best approach to achieve an outright acquittal.”

Id. at 43. In doing so, we reaffirmed that “‘legitimate trial strategy or tactics’”

cannot establish deficient performance “given the deference afforded to decisions

of defense counsel in the course of representation.” Id. at 33 (quoting Kyllo, 166

Wn.2d at 863). In Grier’s case, we determined that “[a]lthough risky, an all or

nothing approach was at least conceivably a legitimate strategy to secure an

acquittal.” Id. at 42. Therefore, Grier could not satisfy Strickland’s deficient

performance prong.

On the prejudice prong, this court determined that in accordance with

Strickland, this court was required to “presume that the jury found Grier guilty

18 State v. Bertrand, No. 100953-4

beyond a reasonable doubt of second degree murder” because we must

“‘presume . . . that the judge or jury acted according to law.’” Id. at 41 (quoting

Strickland, 466 U.S. at 694). Moreover, “the proposed manslaughter instructions

instructed the jury not to consider manslaughter if convinced beyond a reasonable

doubt that Grier was guilty of second degree murder.” Id.

Therefore, this court “presume[d] that the jury found Grier guilty beyond a

reasonable doubt of second degree murder” and that the jury would not have

considered the lesser included offense instructions, even if they had been given.

Id. We concluded that Grier could not show prejudice given these presumptions:

“Assuming, as this court must, that the jury would not have convicted Grier of

second degree murder unless the State had met its burden of proof, the availability

of a compromise verdict would not have changed the outcome of Grier’s trial.” Id.

at 43-44. Thus, Grier held that “under the standard the United States Supreme

Court set forth in Strickland, the withdrawal of jury instructions on lesser included

offenses did not constitute ineffective assistance.” Id. at 45.

This court has applied Grier in several subsequent cases addressing

ineffective assistance of counsel claims. However, these cases have not fully

explored Strickland’s prejudice prong as applied to claims based on defense

counsel’s failure to propose lesser included offense instructions.

19 State v. Bertrand, No. 100953-4

In several cases, we applied Grier’s deficient performance analysis to

conclude that counsel’s failure to propose lesser included offense instructions was

“a legitimate all or nothing strategy,” such that “the first prong of the Strickland

standard is not met.” State v. Breitung, 173 Wn.2d 393, 398, 401, 267 P.3d 1012

(2011); see also State v. Witherspoon, 180 Wn.2d 875, 885-86, 329 P.3d 888

(2014) (similar). We have also applied Grier when analyzing ineffective

assistance claims based on other types of alleged errors by defense counsel. E.g.,

In re Det. of Coe, 175 Wn.2d 482, 490-91, 286 P.3d 29 (2012) (failure to offer

definitional instruction).

In addition, we have extended Grier’s analysis to personal restraint petitions.

Personal Restraint of Crace primarily addressed whether “a showing of prejudice

under Strickland meet[s] the personal restraint petitioner’s requirement to show

actual and substantial prejudice.” 174 Wn.2d at 840 (emphasis omitted). We

concluded that the answer is yes: “if a personal restraint petitioner makes a

successful ineffective assistance of counsel claim,” no additional prejudice must be

shown. Id. at 846-47. We then briefly analyzed the merits and denied Crace’s

claim, holding that he could not show prejudice from counsel’s failure to propose a

lesser included offense instruction. We noted that “[t]here was sufficient evidence

from which a juror could conclude Crace committed this offense,” and we relied

on “the presumptions we recognized in Grier” to conclude that “it would be

20 State v. Bertrand, No. 100953-4

difficult to show prejudice in such a context, and Crace has failed to do so here.”

Id. at 847-48.

Thus, our precedent recognizes that ineffective assistance claims based on

counsel’s failure to propose lesser included offense instructions are subject to the

two-pronged Strickland test. Our precedent also recognizes that such claims are

difficult to prove, and we have typically denied relief. As a result, although we

have not explicitly ruled out the possibility of a successful claim, some confusion

has arisen as to what, precisely, our precedent requires when analyzing

Strickland’s prejudice prong in this context.

2. Other courts have indicated confusion as to whether our precedent precludes a showing of prejudice in this context

As indicated by the trial court proceedings in this case, discussed above, our

precedent in this area has not been entirely clear. The State and the trial court

appear to have interpreted Grier to hold that showing prejudice from counsel’s

failure to request a lesser included offense instruction is not merely difficult, but

impossible. See CP at 193 (State arguing that “a Defendant cannot [show]

prejudice under the second prong of the Strickland test for ineffective assistance of

counsel if the Defendant is convicted”); 2 VRP (Mar. 2, 2022) at 734 (trial court

ruling that “based upon . . . the Grier case, [prejudice is] a non-issue”). This

interpretation is not unique to Bertrand’s case; indeed, multiple appellate courts

have reached similar conclusions.

21 State v. Bertrand, No. 100953-4

The lack of clarity in this area of our precedent is well illustrated by the

Ninth Circuit case of Crace, 798 F.3d 840. Crace addressed a federal habeas

corpus petition brought by the same individual whose claim this court denied in

Personal Restraint of Crace, noted above. As he had done in his personal restraint

petition, Crace argued in his habeas corpus petition that defense counsel was

ineffective for failing to request a lesser included offense instruction. The federal

district court departed from this court’s analysis and granted Crace’s petition, and

the Ninth Circuit Court of Appeals affirmed.

In its opinion, the Ninth Circuit set forth its interpretation of this court’s

precedent:

The Washington Supreme Court in essence converted Strickland’s prejudice inquiry into a sufficiency-of-the-evidence question . . . because, under the Washington Supreme Court’s approach, a defendant can only show Strickland prejudice when the evidence is insufficient to support the jury’s verdict—a circumstance in which the defendant does not need to rely on Strickland at all.

Id. at 849. The Ninth Circuit rejected such an analysis, concluding that “[n]othing

in Strickland . . . forbids courts from considering the possibility that a jury would

have convicted on a lesser included offense if given the option to do so.” Id.

Instead, “Strickland requires a reviewing court to assess the likelihood that the

defendant’s jury would have convicted only on the lesser included offense.” Id.

The State and the trial court in this case appear to have agreed with the Ninth

Circuit’s interpretation, as have several Court of Appeals opinions. See CP at 193-

22 State v. Bertrand, No. 100953-4

95; 2 VRP (Mar. 2, 2022) at 734; State v. Lewis, No. 34347-2-III, slip op. at 14-20

(Wash. Ct. App. Dec. 7, 2017) (unpublished), https://www.courts.wa.gov/opinions/

pdf/343472_unp.pdf; State v. Kennon, No. 80813-3-I, slip op. at 19-20 (Wash. Ct.

App. Aug.16, 2021) (unpublished), https://www.courts.wa.gov/opinions/pdf/

808133.pdf, review denied, 198 Wn.2d 1039 (2022). We therefore take this

opportunity to clarify our precedent.

3. A defendant can satisfy Strickland’s prejudice prong in this context, even if their conviction is supported by sufficient evidence

In determining whether, and how, our precedent requires clarification, the

Ninth Circuit’s opinion in Crace is highly informative. Without question, we

agree that Strickland’s prejudice prong cannot be “converted . . . into a sufficiency-

of-the-evidence question,” and we recognize that our reference to the sufficiency of

the evidence in Personal Restraint of Crace may have been misleading. Crace,

798 F.3d at 849. Therefore, we now explicitly clarify that there are no special

rules or heightened burdens that a defendant must satisfy to show ineffective

assistance of counsel based on the failure to request lesser included offense

instructions. We reaffirm that Strickland’s two-pronged test provides the

applicable framework, and we take this opportunity to provide additional guidance

on applying the prejudice prong in this context.

At the outset, we emphasize that sufficiency of the evidence claims are

subject to different standards than ineffective assistance of counsel claims. “The

23 State v. Bertrand, No. 100953-4

standard of review for determining the sufficiency of the evidence ‘is whether,

after viewing the evidence most favorable to the State, any rational trier of fact

could have found the essential elements of [the crime] beyond a reasonable

doubt.’” State v. Hampton, 143 Wn.2d 789, 792, 24 P.3d 1035 (2001) (emphasis

added and omitted) (alteration in original) (quoting State v. Green, 94 Wn.2d 216,

221-22, 616 P.2d 628 (1980) (plurality opinion)). By contrast, when assessing

Strickland’s prejudice prong, “the question is whether there is a reasonable

probability that, absent [counsel’s] errors, the factfinder would have had a

reasonable doubt respecting guilt.” 466 U.S. at 695. In the Strickland analysis, we

do not view the evidence in the light most favorable to the State; instead, we “must

consider the totality of the evidence before the judge or jury.” Id.

When considering the totality of the evidence, courts must guard against

oversimplifying the complex duties that juries must perform. Juries must consider

both direct and circumstantial evidence, evaluate the credibility of witnesses,

assign relative weight to the evidence, and draw reasonable inferences from the

evidence presented. Thus, when a jury is presented with the choice to convict or

acquit, the jury may lawfully view the evidence and draw reasonable inferences in

favor of the State to reach a conviction. See Coryell, 197 Wn.2d at 418;

Henderson, 182 Wn.2d at 736.

24 State v. Bertrand, No. 100953-4

Yet, the same jury, if given a third option, could lawfully take a more

nuanced approach, drawing some inferences in favor of the State and others in

favor of the defense, to convict only on the lesser included offense. “[I]t depends

on how the jury views the evidence.” Henderson, 182 Wn.2d at 746; cf. Coryell,

197 Wn.2d at 418. Indeed, that is precisely how lesser included offense

instructions “protect procedural fairness and substantial justice for the accused,” by

“assist[ing] the jury in weighing the evidence, determining witness credibility, and

deciding disputed questions of fact.” Coryell, 197 Wn.2d at 412, 414. In other

words, as the Ninth Circuit aptly stated, “[L]esser-included-offense instruction[s]

can affect a jury’s perception of reasonable doubt.” Crace, 798 F.3d at 848.

Thus, we recognize that a jury may draw different reasonable inferences

from the evidence presented at trial, depending on the instructions given. This

does not diminish Strickland’s presumption “that the judge or jury acted according

to law,” nor does it improperly assume that the jury acted with “arbitrariness,

whimsy, caprice, ‘nullification,’ and the like.” Strickland, 466 U.S. at 694-95. To

the contrary, recognizing the nuanced and varying inferences that might be drawn

in any given case presumes that the jury carefully and thoughtfully follows all of

its instructions to weigh the evidence, judge the credibility of witness, and draw

reasonable inferences to reach a verdict. In doing so, we assume “that the

25 State v. Bertrand, No. 100953-4

decisionmaker is reasonably, conscientiously, and impartially applying the

standards that govern the decision.” Id. at 695.

This approach is well supported, not only by Strickland and the Ninth

Circuit’s opinion in Crace but by the reasoned opinions of several other

jurisdictions. For instance, the Third Circuit Court of Appeals has recognized that

the failure to request a lesser included offense instruction may expose a defendant

to a “substantial risk” of prejudice, which cannot be resolved by “merely not[ing]

the sufficiency of the evidence.” Breakiron v. Horn, 642 F.3d 126, 140 (3d Cir.

2011) (emphasis omitted). The Supreme Courts of Delaware, Tennessee, and

Missouri have similarly concluded that Strickland does not prohibit a defendant

from showing that they were prejudiced in this context. See Baynum v. State, 211

A.3d 1075, 1085 (Del. 2019); Moore v. State, 485 S.W.3d 411, 422 (Tenn. 2016);

McNeal v. State, 412 S.W.3d 886, 892 (Mo. 2013).

We agree with the careful analysis in these opinions. Evaluating prejudice

from counsel’s failure to request a lesser included offense instruction requires

“‘conduct[ing] a thorough examination of the record, including the evidence

presented at trial, the defendant’s theory of defense, and the verdict returned by the

jury.’” Moore, 485 S.W.3d at 422 (quoting State v. Allen, 60 S.W.3d 181, 191

(Tenn. 2002)). Thus, a “jury’s decision [to convict on the higher degree offense]

may make it difficult for a post-conviction movant to prove prejudice, but it does

26 State v. Bertrand, No. 100953-4

not necessarily preclude a finding of prejudice as a matter of law.” McNeal, 412

S.W.3d at 892.

In sum, we reaffirm that ineffective assistance claims based on counsel’s

failure to request lesser included offense instructions are subject to the same

Strickland analysis that applies to all ineffective assistance claims. Although it is

difficult to satisfy the two-pronged Strickland test in this context, we clarify that

Strickland’s prejudice prong is not a sufficiency of the evidence test and that there

are no per se rules preventing the defendant from meeting their Strickland burden

in an appropriate case.

C. Bertrand does not meet his burden to show prejudice in this case

Applying the foregoing standards to this case, we affirm the trial court in

result. We review a trial court’s decision on a motion for a new trial for abuse of

discretion or “erroneous interpretations of the law.” State v. Jackman, 113 Wn.2d

772, 777, 783 P.2d 580 (1989).

As discussed above, the trial court ruled that Bertrand’s trial counsel was

deficient in failing to know that fourth degree assault could be a lesser included

offense of child molestation, thus satisfying Strickland’s first prong. However, the

trial court ruled that Bertrand could not satisfy Strickland’s prejudice prong in light

of the jury’s guilty verdicts and denied his motion for a new trial. Although we

clarify that the jury’s guilty verdicts do not automatically preclude a showing of

27 State v. Bertrand, No. 100953-4

prejudice based on counsel’s failure to propose lesser included offense instructions,

Bertrand cannot meet his burden of showing prejudice on the record presented.

While Bertrand’s counsel was deficient for failing to know the law, Bertrand

cannot show this deficiency caused him prejudice because, even if counsel had

requested the lesser included offense instructions, there is no factual basis in the

record to support fourth degree assault instructions.

As discussed above, to prevail on his ineffective assistance of counsel claim,

Bertrand must show he was entitled to the fourth degree assault instructions

pursuant to Workman’s two-pronged test. Avington, 2 Wn.3d at 258. For purposes

of Workman’s legal prong, this court’s precedent holds that fourth degree assault

can be a lesser included offense of child molestation. Stevens, 158 Wn.2d at 311.

Fourth degree assault is “an unlawful touching with criminal intent” that does “not

amount[ ] to assault in the first, second, or third degree, nor a custodial assault.”

Id. at 311, 310 (citing RCW 9A.36.041(1)). Therefore, “child molestation

necessarily includes the elements of fourth degree assault,” plus additional

elements requiring “sexual contact” and a child victim. Id. at 311.3 Bertrand’s

counsel was deficient in failing to know this law.

3 The State argues for the first time on appeal that fourth degree assault is not a lesser included offense of child molestation and asks this court to disavow Stevens. We decline to reach the State’s argument on this point. See RAP 2.5(a).

28 State v. Bertrand, No. 100953-4

However, counsel’s deficient performance did not prejudice Bertrand

because there was no evidence presented at trial that would have supported fourth

degree assault instructions, as required by Workman’s factual prong. A lesser

included offense instruction is appropriate only if there is “‘some evidence . . .

presented—from whatever source, including cross-examination—that affirmatively

establishes the defendant’s theory.’” Avington, 2 Wn.3d at 259 (quoting Coryell,

197 Wn.2d at 415). There was no evidence presented at trial that showed Bertrand

committed fourth degree assault by unlawfully touching either girl with criminal,

but not sexual, intent. Instead, both girls testified to unwanted, sexual contacts.

C.A. testified Bertrand “put his hand down [her] pants . . . [o]nto [her] butt” and

also touched her upper back and “by [her] breasts.” 1 VRP (Dec. 9, 2021) at 343-

44. Similarly, S.T. testified Bertrand touched “the front of [her] chest” while they

watched movies on the couch together, which made her feel “[u]ncomfortable.”

Id. at 390-91. Neither girl testified to unlawful but nonsexual touchings.

Therefore, their testimony does not support Bertrand’s postverdict theory of the

case that he committed assault, but not child molestation.

Moreover, Bertrand’s postverdict theory of the case directly contradicts the

“all or nothing” defense strategy he employed at trial, mainly by attempting to

discredit the girls’ testimony as unreliable. Bertrand’s trial counsel argued that no

unlawful touching occurred based on (1) the supposed inconsistencies in C.A. and

29 State v. Bertrand, No. 100953-4

S.T.’s testimonies and (2) the touchings as described by both girls, which counsel

equated to children “crawling over” and “wrestling with” their dad. 2 VRP (Dec.

14, 2021) at 588.

Thus, at trial, Bertrand did not argue “in essence that the State had only

proved Bertrand committed [fourth degree assault],” and the evidence at trial does

not support his postverdict theory that unlawful but nonsexual contacts did in fact

occur. Contra dissent at 11. Instead, Bertrand argued that any contacts between

him and the girls, if they had occurred, were lawful. As a result, the evidence at

trial did not support the factual prong of the Workman test.

In sum, Bertrand cannot show he was prejudiced by counsel’s failure to

know that fourth degree assault can be a lesser included offense of child

molestation because there is no evidence in the record to support lesser included

offense instructions on fourth degree assault.4 Therefore, Bertrand fails to show a

reasonable probability that the outcome of trial would have been different had

counsel known the law and requested the fourth degree assault instructions.

Contrary to the dissenting opinion, prejudice is not measured by the ultimate

4 The trial court ruled that Bertrand would have “most likely” been entitled to lesser included offense instructions on fourth degree assault if he had requested them, indicating that Bertrand had satisfied Workman’s factual prong. 2 VRP (Mar. 2, 2022) at 723. But this would have been an abuse of discretion because, as discussed above, there was no evidence at trial that supported fourth degree assault instructions. See Avington, 2 Wn.3d at 260 (trial court’s decision on lesser included offense instruction “is reviewed for abuse of discretion if it ‘was based on a factual determination’” (internal quotation marks omitted) (quoting Coryell, 187 Wn.2d at 405)).

30 State v. Bertrand, No. 100953-4

sanction or degree of punishment. Dissent at 3. The trial court did not abuse its

discretion in denying Bertrand’s motion for a new trial.

CONCLUSION

We reaffirm that Strickland sets forth the correct standard for analyzing

ineffective assistance of counsel claims. We further clarify that in accordance with

Strickland, a defendant can show ineffective assistance based on counsel’s failure

to propose a lesser included offense instruction, even if there is sufficient evidence

to support the jury’s verdict. We recognize this showing is difficult to make when

the defendant is convicted of the charged offense given Strickland’s mandatory

presumptions of reliability in the jury’s verdict. Nevertheless, there is no per se

rule precluding a defendant from satisfying the two-pronged Strickland test based

on counsel’s failure to propose a lesser included offense instruction.

In this case, we affirm the trial court in result because Bertrand was not

prejudiced by his counsel’s failure to propose the fourth degree assault

instructions. We remand the remaining issues to the Court of Appeals for further

proceedings, without prejudice to either party. 5

5 Bertrand’s opening brief raises additional issues beyond the lesser included offense instruction issue raised in his statement of grounds for direct review. At oral argument, both parties agreed that if we did not reverse Bertrand’s convictions based on the lesser included offense instruction issue, the remaining issues should be remanded to the Court of Appeals for further consideration. Wash. Sup. Ct. oral arg., State v. Bertrand, No. 100953-4 (Oct. 12, 2023), at 37 min., 43 sec.; 44 min., 9 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/washington-state-supreme-court-2023101138/.

31 State v. Bertrand, No. 100953-4

WE CONCUR:

32 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

No. 100953-4

WHITENER, J. (dissenting)— “How much more prejudice do we need?”1

When a defendant seeks relief from the consequences of ineffective assistance of

counsel, they must satisfy a two-part analysis under Strickland v. Washington, 466

U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). I agree with the majority that

Andrew Wesley Bertrand has satisfied the first step of the Strickland analysis, as his

counsel’s performance was deficient. I part with the majority on step two of the

Strickland analysis. I would find that Bertrand has shown that he was prejudiced by

defense counsel’s deficient performance, thus, also satisfying step two of the

Strickland analysis.

Bertrand was charged with child molestation in the first degree, of which

assault in the fourth degree is a lesser included offense. State v. Stevens, 158 Wn.2d

304, 312, 143 P.3d 817 (2006). A distinguishing element between the two offenses

is sexual contact, where the touching was done for the purpose of sexual

gratification. 11 WASHINGTON PRACTICE: PATTERN JURY INSTRUCTIONS: CRIMINAL

45.07, at 1101 (5th ed. 2021). Defense counsel’s trial strategy involved an argument

1 The question Justice Chambers asked the majority in his dissenting opinion more than a decade ago. In re Pers. Restraint of Crace, 174 Wn.2d 835, 850, 280 P.3d 1102 (2012).

1 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

that the State failed to prove the element of sexual contact because there was no

evidence of sexual gratification. 2 Verbatim Rep. of Digitally-Recorded Proc. (VRP)

at 587-88. Yet, despite defense counsel arguing in essence that the State had proved

only assault in the fourth degree, the defense never requested a jury instruction for

assault in the fourth degree. Failure to request the instruction was not the result of

an “all or nothing” trial strategy but, rather, was because defense counsel did not

know that assault in the fourth degree was a lesser included offense. Clerk’s Papers

(CP) at 155-56. As a result, defense counsel never discussed the possibility of a

lesser included offense instruction with Bertrand, and defense counsel indicated had

they known it was a lesser included offense they would have requested the

instruction. CP at 155-56, 158. In addition, the trial court stated had defense counsel

asked for the instruction that the court would have likely included the instruction for

assault in the fourth degree. 2 VRP at 722-23.

Under the facts of this case, it cannot be said that Bertrand received effective

assistance of counsel as guaranteed by the Sixth Amendment of the United States

Constitution and article I, section 22 of the Washington State Constitution. The right

to effective assistance of counsel goes to the fundamental fairness of the criminal

legal system as a whole. For the accused, it is perhaps the most important

2 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

constitutional right, as an effective counsel helps a defendant assert all other

constitutional rights.

The ramification of defense counsel’s failure to request the lesser included

offense instruction to Bertrand is enormous. Between the legal consequences of an

assault in the fourth degree conviction, a gross misdemeanor with a maximum

imprisonment term of 364 days, and a conviction for child molestation in the first

degree, a class A felony sex offense with a maximum imprisonment term of life,

exists one of the largest gaps in Washington’s sentencing system. RCW 9A.20.021.

The majority’s interpretation of Strickland, despite their insistence to the contrary,

continues to render the guarantee of effective assistance of counsel at a critical stage

of a criminal proceeding practically meaningless. Therefore, I respectfully dissent.

Strickland, the seminal case for ineffective assistance of counsel claims under

the Sixth Amendment of the United States Constitution, requires a court to consider

such claims with a two part analysis. 466 U.S. at 687. First, the defendant must

establish that their “counsel’s representation fell below an objective standard of

reasonableness.” Id. at 688. Second, the defendant must establish that they were

“prejudiced” by the “deficient performance.” Id. at 687. We have adopted

Strickland’s analysis for determining whether a defendant has received ineffective

3 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

assistance of counsel. State v. Cienfuegos, 144 Wn.2d 222, 226, 25 P.3d 1011

(2001). However, when considering an ineffective assistance of counsel claim based

on a counsel’s failure to request a jury instruction, a court must first consider whether

the defendant was entitled to the instruction prior to analyzing Strickland’s two

steps. We described this specific analysis in Cienfuegos.

Analytically, Cienfuegos presents three questions. First, we must determine whether Cienfuegos was entitled to a diminished capacity instruction. Second, we must decide whether it was ineffective assistance of counsel per se not to have requested the instruction. Finally, we must decide whether ineffective assistance of counsel prejudiced his defense under the Strickland standard.

Id. at 227. Answering whether the defendant was entitled to the instruction first is a

perfect starting point as its result informs each of Strickland’s steps. Counsel’s

performance is unlikely to be “unreasonable” in their failure to request the

instruction if the defendant was never entitled to the instruction, nor is the defendant

likely to be “prejudiced” by that performance if the defendant was never entitled to

the instruction.2

2 Without reason, the majority departs from Cienfuegos’s three-step analysis. The majority instead creates a new analytical framework, placing the question of whether Bertrand was entitled to the instruction within Strickland’s second step, the “prejudice” step. Majority at 27-29. In doing so, the majority muddies the analysis of Strickland’s first step and, most importantly, rather than clarifying the “prejudice” step, it further confuses the already problematic analysis of the “prejudice” step.

4 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

I

Whether Bertrand was entitled to the lesser included offense instruction is

answered under the Workman test, which itself is a two-step analysis. State v.

Workman, 90 Wn.2d 443, 584 P.2d 382 (1978).

First, each element of the lesser offense must be necessary elements of the

offense charged—the legal prong. Id. at 447-48; State v. Schierman, 192 Wn.2d 577,

651, 438 P.3d 1063 (2018) (reviewed de novo). Bertrand satisfies the first step of

the Workman test, as all the elements of assault in the fourth degree are necessary

elements of child molestation in the first degree. Stevens, 158 Wn.2d at 311-12.

Second, the evidence must support an inference that the lesser crime was

committed—the factual prong. Workman, 90 Wn.2d at 448; Schierman, 192 Wn.2d

at 651 (reviewed for abuse of discretion). Bertrand satisfies the second step of the

Workman test, as the trial court found that it would have “most likely … adopted”

the assault in the fourth degree instruction. 2 VRP at 722-23. The trial court did not

abuse its discretion when it made this determination as Bertrand’s counsel argued

both in opening and closing that the testimonies would not and did not sufficiently

establish that Bertrand was sexually gratified by the touchings. 1 VRP at 332; 2 VRP

at 587-88. This was not lost on the trial court, which found counsel “emphasized the

lack of evidence related to sexual gratification which is used to define the element

5 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

of sexual contact and necessary to prove Child Molestation in the First Degree.” Id.at

723. After hearing all the arguments and testimony, the trial court found that “[h]ad

a lesser included charge of Assault in the Fourth Degree been proposed by the

Defendant’s trial attorney, the Court most likely would have adopted it.” 2 VRP at

722-23.

Bertrand was eligible for an assault in the fourth degree instruction, which

allows us to move on to the two steps of the Strickland analysis. Cienfuegos, 144

Wn.2d at 227.

II

Strickland’s first step requires a showing that “counsel’s performance was

deficient,” as it fell below an objective standard of reasonableness. Strickland, 466

U.S. at 687. When counsel’s conduct can be characterized as legitimate trial strategy

or tactics, their performance is not deficient. State v. Kyllo, 166 Wn.2d 856, 863, 215

P.3d 177 (2009). We have previously held that effective assistance includes the duty

to research relevant statutes. State v. Estes, 188 Wn.2d 450, 460, 395 P.3d 1045

(2017); In re Pers. Restraint of Garcia-Mendoza, 196 Wn.2d 836, 844, 479 P.3d 674

(2021). Adequate preparation by counsel requires legal research relevant to the

proceeding and keeping abreast of changes in the law. AM. BAR ASS’N, STANDARDS

FOR CRIMINAL JUSTICE: DEFENSE FUNCTION std. 4-9.6 (4th ed. 2017); RPC 1.1 cmt.

6 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

8. 3 The record shows that counsel’s failure to request the instruction was not

strategy, it was the result of ignorance, as he was not familiar with this court’s

holding in Stevens. 158 Wn.2d at 312; CP at 156. The majority spends a lot of time

discussing Bertrand’s “all or nothing” defense strategy he employed at trial. Majority

at 29. However, the majority’s “all or nothing strategy” argument fails because

Bertrand’s counsel did not know that an assault in the fourth degree is a lesser

included crime of child molestation in the first degree. It cannot be said that counsel

pursued a legitimate trial strategy when he failed to request a lesser included jury

instruction because he did not know such a strategy existed. The trial court correctly

held that Bertrand’s counsel was “deficient.” 2 VRP at 723. Counsel’s failure to

request the lesser included jury instruction was not a choice of trial strategy, it was

a failure to research the relevant statutes that is unduly problematic given counsel

“emphasized the lack of evidence related to sexual gratification.” CP at 156; 2 VRP

at 723. Bertrand successfully established Strickland’s first step.

III

Strickland’s second step requires a showing that “the deficient performance

prejudiced the defense” where there exists a reasonable probability that, but for

3 Prevailing norms and guidelines promulgated by professional organizations are not necessarily dispositive in determining what is reasonable conduct for defense counsel, but they provide guidance. State v. Grier, 171 Wn.2d 17, 30 n.4, 246 P.3d 1260 (2011); Strickland, 466 U.S. at 688. 7 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

counsel’s unprofessional error, the result of the proceeding would have been

different. Strickland, 466 U.S. at 687, 694. A “reasonable probability” is a

probability sufficient to undermine confidence in the outcome. Id. at 694.

When considering the second step, Strickland requires courts to presume that

the decision maker, whether jury or judge, “acted according to law.” Id. In the

following passage, the Strickland court elaborated on what this presumption means:

An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Id. at 695. In other words, when considering the second step of Strickland, the

prejudice step, the court must presume that the decision made by a jury or judge was

not the result of some “freak acts of ‘lawless[ness]’… that are outside the ordinary

course of criminal justice.” Crace v. Herzog, 798 F.3d 840, 847 (9th Cir. 2015)

(alteration in original) (quoting Strickland, 466 U.S. at 695).

This court first considered Strickland in the context of counsel’s failure to

request a lesser included offense instruction in State v. Grier, 171 Wn.2d 17, 246

P.3d 1260 (2011). Grier was charged with murder in the second degree, and though

8 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

her counsel originally proposed introducing instructions for the lesser included

offenses of manslaughter in the first and second degree, Grier and her counsel

ultimately decided against it and withdrew the instruction request. Id. at 26-27. Grier

was convicted of murder in the second degree and appealed her conviction on

ineffective assistance of counsel grounds due to her counsel’s failure to request the

lesser included offenses instructions. In its decision, this court functionally turned

Strickland’s prejudice step into a per se rule within the context of counsel’s failure

to request a lesser included offense instruction:

Grier [cannot] establish prejudice under the second prong of Strickland. Assuming, as this court must, that the jury would not have convicted Grier of second degree murder unless the State had met its burden of proof, the availability of a compromise verdict would not have changed the outcome of Grier’s trial. Grier, 177 Wn.2d at 43-44. In other words, if the defendant was convicted of the

greater offense at trial, the defendant cannot establish that the availability of a lesser

included offense instruction creates a reasonable probability for a different outcome

because the jury was instructed on the State’s burden, followed the instruction, and

convicted the defendant of the greater offense. Grier’s prejudice analysis is

problematic for a number of reasons.

First, it rendered a defendant’s ability to obtain relief when their counsel was

ineffective at the jury instruction stage of trial meaningless. A defendant would raise

9 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

this claim only because they were convicted of the greater offense, which

functionally prevents them from satisfying the prejudice step under Grier.

Second, it ignored much of Strickland’s explanation of what the “acted

according to law” presumption means. Strickland asked courts to presume that a

jury’s or judge’s decision was not the result of some “freak acts of ‘lawless[ness]’…

that are outside the ordinary course of criminal justice.” Crace, 798 F.3d at 847

(alteration in original) (quoting Strickland, 466 U.S. at 695). Nothing in Strickland’s

“acted according to law” presumption prohibits the court from presuming the

possibility that given a third option, a jury could make a different decision.

Third, it ignored what the introduction of a lesser included offense could do

to the jury’s perception of reasonable doubt. Id. at 848. A jury that convicts on the

greater offense when only presented with the greater offense may convict only on

the lesser offense if given the opportunity to do so because the lesser offense is a

better fit with the evidence presented. That decision is not the result of “arbitrariness,

whimsy, caprice, ‘nullification,’ and the like.” Strickland, 466 U.S. at 695. It is still

the result of a decision-making process that “reasonably, conscientiously, and

impartially appl[ied] the standards that govern the decision.” Id. The possibility of a

jury choosing a “third option” of a lesser included offense when given the

opportunity to does not mean it ignored the instruction to hold the State to its burden

10 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

of proof; it simply means the “third option” changed the jury’s perception of

reasonable doubt and its levels of nuance. See Crace, 798 F.3d at 847.

Fourth, Strickland’s “acted according to the law” presumption requires courts

to presume the possibility that given a third option, a jury could make a different

decision. The prejudice step of Strickland is satisfied only when there is “a

probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694. In

Henderson, this court held that giving juries the option of lesser included offenses is

“crucial to the integrity of our criminal justice system” as it minimizes the risk of a

jury voting to convict when presented with one offense, despite an element being in

doubt, because “‘the defendant is plainly guilty of some offense.’” State v.

Henderson, 182 Wn.2d 734, 736, 344 P.3d 1207 (2015) (emphasis omitted) (quoting

Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844

(1973)). This is true regardless of whether the omission of the lesser included offense

instruction occurred because a judge wrongfully denied its request or an ineffective

counsel wrongfully omitted its request. If giving the jury a lesser included offense

instruction is “crucial to the integrity” of the system, the failure to do so would

clearly “undermine confidence in the outcome.”

Finally, even if one believed the “acted according to law” presumption did not

include the possibility that given a third option, a jury could make a different

11 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

decision, this presumption is not an irrebuttable presumption. Counsel’s failure to

request a lesser included offense could rebut that presumption. Evidence of the

actual decision process, if part of the record, can be used in the prejudice analysis.

Strickland, 466 U.S. at 695. When a record shows counsel failed to request a lesser

included offense instruction that the defendant was lawfully entitled to, and it was

not the result of strategy, then the “acted according to law” presumption is rebutted.

A jury in this scenario did not “act according to law” in their decision-making

process because they did not receive all the laws they were lawfully entitled to be

instructed on.

This court maintained Grier’s problematic application of Strickland’s

prejudice analysis a year later in In re Personal Restraint of Crace, 174 Wn.2d 835,

280 P.3d 1102 (2012).

With respect to prejudice, we noted in Grier that the court must assume “that the jury would not have convicted [the defendant] unless the State had met its burden of proof.” And, we must assume that “the availability of a compromise verdict would not have changed the outcome of [the] trial.” Id. at 847 (alterations in original) (citation omitted) (quoting Grier, 177 Wn.2d at

43-44). Appeals courts have continued to apply Grier’s analysis of the prejudice

step. In Lewis, Division Three, bound by Grier, applied this court’s problematic

application of Strickland’s prejudice step, while acknowledging this court’s strange

12 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

divergence when applying Strickland in the context of counsel’s failure to request

lesser included offense instructions:

The Washington Supreme Court, in State v. Grier, may have ignored this general standard of prejudice, for purposes of an ineffective assistance of counsel analysis, and established a greater burden for the accused to carry in our context of the failure to seek a lesser included offense jury instruction…. [I]mportantly, the high court adopted the reasoning that, since the jury found the defendant guilty of the greater crime beyond a reasonable doubt, the jury, if given an opportunity, would not have convicted of the lesser crime. The reviewing court must assume that the jury will act according to the law and convict only if it finds guilt beyond a reasonable doubt. Therefore, according to Grier, the defendant does not establish prejudice if convicted of the greater crime because he would have otherwise been convicted even if the trial court afforded the jury the opportunity to convict on a lower charge.” State v. Lewis, No. 34347-2-III, slip. op. at 14-16 (Wash. Ct. App. Dec. 7, 2017)

(unpublished) (citation omitted),

https:www.courts.wa.gov/opinions/pdf/343472_unp.pdf.

Despite lower courts quoting Grier’s problematic application of Strickland’s

prejudice step almost word-for-word, the majority writes that Grier has been

misinterpreted by lower courts. Majority at 21. The majority now seeks to clarify

how prejudice is analyzed within the context of a counsel’s failure to request lesser

included offense instructions. The majority’s clarification is that there is no per se

rule and no sufficiency of the evidence burden for defendants like Bertrand to satisfy

but, rather, that the prejudice step is simply “difficult,” but not “impossible.”

13 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

Majority at 1-2, 21, 27. Regrettably when considering prejudice to Bertrand, the

majority maintains the same problematic application of Strickland’s prejudice

analysis, and the “difficult” burden remains functionally impossible.

One of the challenges of applying Strickland in this context is that courts “should presume, absent challenge to the judgment on grounds of evidentiary insufficiency . . . the judge or jury acted according to law.” As reflected in the jury instructions for Bertrand’s case, well-established law requires the jury “to return a verdict of not guilty” unless the State meets its “burden of proving each element of each crime beyond a reasonable doubt.” … Thus, Strickland requires courts to presume that the jury found the State met its burden of proof and lawfully reached a verdict of conviction on that basis. Majority at 17 (first alteration in original) (emphasis added) (citation omitted)

(quoting court papers). The majority holds that the trial court misinterpreted Grier’s

analysis of the prejudice step and affirms it in “result” only. Majority at 21, 27.

Interestingly, what the majority holds as a misinterpretation was a near recitation of

what the majority believes is required of courts under Grier when analyzing

Strickland’s prejudice step. According to the trial court,

[t]he analysis relies upon the concept that the jury would have not convicted a defendant of a greater charge unless the State had met its burden of proof on all the elements. 2 VRP at 724. The majority’s “additional guidance and clarification” of Strickland’s

prejudice step is superficial as it maintains Grier’s problematic analysis. Majority at

11. Until the majority finally overturns Grier’s “patently unreasonable application

of Strickland” and its interpretation of Strickland’s “acted according to law” 14 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

presumption, lower courts will continue to “misinterpret” Grier’s application of

Strickland’s prejudice step, despite applying it nearly word-for-word. Crace, 798

F.3d at 847. Today, under an ineffective assistance of counsel claim, the Strickland

prejudice analysis continues to be functionally impossible to obtain relief for those

whose counsel failed to request lesser included offense instructions.

Here, counsel’s deficient performance prejudiced Bertrand. “[T]he deficient

performance [of counsel] prejudiced the defense” where there exists a reasonable

probability that “but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 687, 694. A “reasonable

probability” is a probability sufficient to undermine confidence in the outcome. Id.

at 694.

Bertrand is before this court because those tasked with making the ultimate

determination as to whether Bertrand committed assault in the fourth degree, child

molestation in the first degree, both crimes, or none at all were denied the

opportunity because Bertrand’s counsel was ineffective. The remedy sought here is

to allow jurors to make that determination with all of the instructions Bertrand was

entitled to, which includes the lesser included offense instruction of assault in the

fourth degree.

15 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

The facts here indicate that the strength of the State’s case relied primarily on

the testimonies of C.A. and S.T. There exists a gap between the testimony of both

C.A. and S.T., as S.T. did not allege that Bertrand touched her underneath her

clothes. 1 VRP at 342, 391. In contrast, Bertrand’s counsel argued significantly

about C.A.’s credibility issues. In addition, defense counsel argued that the State’s

evidence was deficient when it came to the element of sexual contact, indicating it

was not clear beyond a reasonable doubt that Bertrand was sexually gratified by the

touchings. 2 VRP at 587-594, 604. Despite Bertrand’s counsel arguing in essence

that the State had proved only that Bertrand committed the crime of assault in the

fourth degree, his counsel did not know assault in the fourth degree was a lesser

included offense of child molestation in the first degree, and ultimately his counsel

never requested an instruction for assault in the fourth degree. His counsel’s failure

to request the lesser included offense instruction created a reasonable probability

that the jury could have arrived at a different conclusion. The jury could have

concluded that the touchings did in fact occur, but that they amounted to an assault

in the fourth degree rather than child molestation in the first degree. Giving the jury

a lesser included offense instruction is “crucial to the integrity” of the system,

therefore the failure to do so “undermine[s] confidence in the outcome.” Henderson,

182 Wn.2d at 736; Strickland, 466 U.S. at 694.

16 State v. Bertrand, No. 100953-4 Whitener, J., dissenting

I would find Bertrand has satisfied both steps of the Strickland analysis. His

counsel was deficient in their performance when they failed to request the lesser

included offense instruction, and there exists a reasonable probability that but for the

failure to request the assault in the fourth degree instruction, the result of the

proceeding would have been different. Accordingly, I would vacate Bertrand’s

convictions and remand for a new trial.

______________________________

17 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

GORDON McCLOUD, J. (concurring in result of dissent)— I agree with

both the majority and the dissent that a criminal defense lawyer’s failure to request

a legally available, factually supported, and strategically appropriate jury

instruction on a lesser included offense that the lawyer did not know about

constitutes deficient performance. Majority at 16; dissent at 1.

I also agree with both the majority and the dissent that this court’s previous

decisions in State v. Grier, 171 Wn.2d 17, 38, 246 P.3d 1260 (2011), and In re

Personal Restraint of Crace, 174 Wn.2d 835, 848, 280 P.3d 1102 (2012), failed to

recognize or appropriately explain the significant prejudice that such deficient

performance can cause. Majority at 17-21; dissent at 9-11.

But I disagree with the majority’s conclusion that Andrew Wesley Bertrand

failed to prove such prejudice in this case—it fails to fully appreciate the

applicable federal constitutional standard for determining prejudice. Majority at

27-31. And I disagree with the dissent’s strict step-by-step approach to the

Strickland1 analysis, though I agree with its conclusion that Bertrand did show

prejudice in this case. Dissent at 3-5, 11-12.

1 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 1 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

I therefore write separately to concur in the result reached by the dissent.

As both the majority and the dissent assert, a criminal defendant is entitled

to effective assistance of counsel under both the Sixth Amendment to the United

States Constitution and article I, section 22 of the Washington Constitution.

Strickland, 466 U.S. at 685-86; State v. Thomas, 109 Wn.2d 222, 229, 743 P.2d

816 (1987).

And as both the majority and the dissent assert, a criminal defendant proves

ineffective assistance of counsel by showing two things: (1) that their lawyer’s

performance was deficient and (2) that the defendant suffered prejudice. State v.

McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing Thomas, 109

Wn.2d at 225-26 (citing Strickland, 466 U.S. at 687)).

I. The Two Prongs of the Strickland Test Can Be Applied in Any Order

But the defendant need not show those two things in any particular order,

and a reviewing court need not analyze those two things in any particular order.

Strickland, 466 U.S. at 697. As the Supreme Court stated in Strickland, “Although

we have discussed the performance component of an ineffectiveness claim prior to

the prejudice component, there is no reason for a court deciding an ineffective

assistance claim to approach the inquiry in the same order or even to address both

components of the inquiry if the defendant makes an insufficient showing on one.”

2 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

Id. Specifically, a reviewing court “need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the

defendant as a result of the alleged deficiencies.” Id.

I therefore agree with the majority’s view that the Strickland test contains

two independent “prongs”; I disagree with the dissent’s view that this court must

apply the Strickland analysis by taking sequential “steps.” Majority at 9-11; dissent

at 1, 3-5.

II. The Majority and Dissent Both Correctly Conclude That Failure To Request a Lesser Included Offense Instruction in This Case Due to Failure To Research the Law Constitutes Deficient Performance Nevertheless, the majority and the dissent—as well as the trial court—all

conclude that trial counsel’s failure to request a lesser included offense instruction

in this case, based on his failure to adequately research the law, constitutes

deficient performance. This is certainly correct, and I believe it is the easy

question in this case.

A defendant shows deficient performance if they show that the lawyer’s

performance fell below an objective standard of reasonableness. State v. Stenson,

132 Wn.2d 668, 705, 940 P.2d 1239 (1997).

In this case, Bertrand showed—on appeal—that assault in the fourth degree

is a lesser included offense of child molestation in the first degree under the

applicable “legal” test. Dissent at 1 (citing State v. Stevens, 158 Wn.2d 304, 312,

3 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

143 P.3d 817 (2006)), 10-11. He also showed—on appeal—that the record

supported such a defense under the applicable “factual” test: only one complainant

provided direct testimony about the “sexual contact” element of the crime, defense

trial counsel sought to undermine both complainants’ credibility based on their

inconsistencies and memory gaps, and defense trial counsel argued that the State

therefore failed to prove the “sexual contact” or “sexual gratification” element of

the crime. Dissent at 10-11, 16 (citing 1 Verbatim Rep. of Digitally-Recorded

Proc. (VRP) (Dec. 9, 2021) at 342, 391; 2 VRP (Dec. 14, 2021) at 587-94, 604).

In addition, Bertrand showed that this was a strategically appropriate

instruction because the defense theory of the case was that (1) the complainants’

testimony was unreliable and (2) even if the jury believed the complainants’

testimony was reliable, it did not prove the necessary element of “sexual contact”

or “sexual gratification.” Dissent at 11 (quoting Strickland, 466 U.S. at 694; State

v. Henderson, 182 Wn.2d 734, 736, 344 P.3d 1207 (2015)).

The majority seems to question whether it should consider both parts of the

defense theory of the case when evaluating Strickland’s deficient performance

prong because those two parts of the defense theory of the case seem inconsistent.

Majority at 7, 29-30. But a criminal defendant is certainly entitled to raise two such

possibly factually inconsistent defenses and to have the jury consider both of them.

Mathews v. United States, 485 U.S. 58, 64-66, 108 S. Ct. 883, 99 L. Ed. 2d 54

4 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

(1988). Following this rule, Bertrand showed that his theory of the case—that the

State failed to prove child molestation because one complainant failed to discuss

“sexual contact” and because both complainants were unreliable—was fully

supported by the record.

Of critical importance to this deficient performance analysis, Bertrand also

showed that his lawyer admitted that he did not know and did not do the research

to find out that he could have obtained a jury instruction on a lesser offense that

lacked the “sexual contact” element. Clerk’s Papers (CP) at 155-56 (affidavit of

prior defense counsel). This proves deficient performance under both state and

federal constitutional law: “Where an attorney unreasonably fails to research or

apply relevant [law] without any tactical purpose, that attorney’s performance is

constitutionally deficient.” In re Pers. Restraint of Yung-Cheng Tsai, 183 Wn.2d

91, 102, 351 P.3d 138 (2015) (citing State v. Kyllo, 166 Wn.2d 856, 865-69, 215

P.3d 177 (2009); State v. Aho, 137 Wn.2d 736, 745-46, 975 P.2d 512 (1999)); see

also Hinton v. Alabama, 571 U.S. 263, 274, 134 S. Ct. 1081, 188 L. Ed. 2d 1

(2014) (per curiam) (“An attorney’s ignorance of a point of law that is fundamental

to his case combined with his failure to perform basic research on that point is a

quintessential example of unreasonable performance under Strickland.”).

Bertrand thus clearly shows that defense trial counsel’s performance was

deficient.

5 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

III. Defense Trial Counsel’s Uninformed Failure To Request a Jury Instruction Supporting His Theories of the Case—Even If They Were Partially Inconsistent—Caused Prejudice under the Proper, “Less Than Preponderance” Standard The real question in this case comes down to prejudice. A defendant shows

prejudice if they can demonstrate that there is a “reasonable probability” that but

for counsel’s deficient performance, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694; McFarland, 127 Wn.2d at 337 (citing

Thomas, 109 Wn.2d at 226).

The prejudice standard is not as hard to meet as the majority claims. The

defendant need not prove prejudice beyond a reasonable doubt or even by the

preponderance of evidence standard. Strickland, 466 U.S. at 694. As both this court

and the United States Supreme Court have explained, and as the majority

acknowledges (majority at 10), a “reasonable probability” is “a probability

sufficient to undermine confidence in the outcome” but less than a preponderance

of the evidence standard. Id. (“The result of a proceeding can be rendered

unreliable, and hence . . . unfair, even if the errors of counsel cannot be shown by a

preponderance of the evidence to have determined the outcome.”); State v. Estes,

188 Wn.2d 450, 458, 395 P.3d 1045 (2017) (“‘reasonable probability’ is lower

than a preponderance standard” (emphasis added) (citing Strickland, 466 U.S. at

694; State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (2015))).

6 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

Bertrand showed just such prejudice from his trial lawyer’s deficient failure

to request a lesser included offense instruction in this case. He showed that his

lawyer made two arguments to the jury: that the complainants were unreliable and

that even if they were reliable, their testimony showed horseplay, not sexual

contact. 2 VRP (Dec. 14, 2021) at 587-594, 604. He showed that those arguments

found support in the testimony. 1 VRP (Dec. 9, 2021) at 342, 391; 2 VRP (Dec. 14,

2021) at 587-594, 604. And he showed that despite the lawyer’s partial theory of

the case—that the State failed to prove sexual contact—the lawyer did not provide

the jury with an instruction about what it could do (other than completely acquit) if

it agreed with the lawyer’s argument. 2 VRP (Dec. 14, 2021) at 587-594, 604.

That suffices to prove prejudice under Strickland. Bertrand need not show

that the jury necessarily would have acquitted him of the greater offenses and

convicted him of only the lesser offense if his lawyer had given the jury that

choice. Strickland, 466 U.S. at 694. But it is certainly likely from this record that

the jury would have done just that, at least as to S.T. —the complainant who

testified that Bertrand touched her on top of her clothes, not underneath. 2 As

described above, under both United States Supreme Court precedent and this

court’s precedent, the defendant need not show prejudice beyond a reasonable

2 The jury was instructed that it must decide each count separately and that its verdict on one count should not control its verdict on the other count. CP at 74 (jury instruction 5). 7 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

doubt or even by a preponderance. Strickland, 466 U.S. 668; Estes, 188 Wn.2d

450.3 Instead, the defendant must show a reasonable probability, by less than a

preponderance of the evidence, that the outcome would have been different.

The majority comes to a different conclusion about prejudice. But both the

majority and the dissent seem to agree that it is time to disavow our language in

Grier and Crace about how to evaluate prejudice. In those cases, this court ruled

that, for all practical purposes, a convicted defendant could not show prejudice

from trial counsel’s nonstrategic failure to ask for an available, legally appropriate,

and factually supported instruction on a lesser included offense. In this case, both

3 The Strickland court went to great lengths to emphasize that this demands less than the preponderance of evidence standard; it explained:

On the other hand, we believe that a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. Nevertheless, the standard is not quite appropriate.

…An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.

466 U.S. at 693-94 (emphasis added) (citation omitted). 8 State v. Bertrand (Andrew Wesley), No. 100953-4 (Gordon McCloud, J., concurring in result of dissent)

the majority and the dissent now acknowledge that a criminal defendant can show

prejudice from such an error. That is the basic holding of today’s case.

I depart from the majority because I believe the record shows that Bertrand

has proved prejudice in this case under the proper, federal, less-than-

preponderance-of-evidence standard. I depart from the dissent because I believe

that Strickland’s two-part test need not be applied in the strict, step-by-step manner

the dissent lays out.

I therefore respectfully concur in the result reached by dissent.

___________________________