526090MAJ

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Court of Appeals Division I
State of Washington

Opinion Information Sheet

Docket Number: 52609-0-I
Title of Case: State of Washington, Respondent vs. George
Ward, Jr., Appellant
File Date: 11/22/2004


SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 02-1-02840-0
Judgment or order under review
Date filed: 06/06/2003
Judge signing: Hon. Ronald Kessler


JUDGES
------
Anne Ellington
C. Kenneth Grosse
Mary Kay Becker


COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Washington Appellate Project
Attorney at Law
Cobb Building
1305 4th Avenue, Ste 802
Seattle, WA 98101

Cheryl D Aza
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Corey Marika Endo
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

George Jr. Ward (Appearing Pro Se)
24705 Hwy 410 E.
Buckley, WA 98321

Counsel for Respondent(s)
Erin Hairopoulos Becker
King County Prosecutors Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA 98104-2390

Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA 98104

Counsel for Other Parties
Hon. Ronald Kessler (Appearing Pro Se)
King County Superior Court
516-3rd Ave., Rm. C-203
Seattle, WA 98104


IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE

STATE OF WASHINGTON, ) No. 52609-0-I
)
Respondent, )
)
v. )
)
GEORGE WARD, )
) ORDER GRANTING MOTION
Appellant. ) TO PUBLISH OPINION
)
Appellant filed a motion to publish the opinion entered November 22,
2004. The panel has considered the motion and determined it should be
granted.
Now, therefore, it is hereby
ORDERED that Appellant's motion to publish is granted.
DATED this day of January, 2005.
FOR THE PANEL:

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
DIVISION ONE

STATE OF WASHINGTON, ) No. 52609-0-I
)
Respondent, )
)
v. )
) PUBLISHED OPINION
GEORGE WARD, )
) FILED: NOVEMBER 22, 2004
Appellant. )
)

PER CURIAM. George Ward was convicted of two counts of assault in the
second degree. We agree with Ward that his counsel were ineffective in
failing to request an instruction on the lesser included offense of
unlawful display of a weapon. We reverse and remand for retrial.
FACTS

On the night of November 18, 2001, Thomas Tuttle, the owner of a towing and
repossession company, went to George Ward's home to repossess a Buick
Riviera. Tuttle was accompanied by his son-in-law, Jay Baldwin. Sometime
between 8:00 and 9:00 p.m., Tuttle backed his unmarked tow truck into
Ward's driveway behind Ward's Buick, and began to attach the towing
mechanism. Baldwin got out of the truck to check that the mechanism was
attaching properly.
As the car was being lifted, Ward appeared on the porch of his home.
According to Baldwin and Tuttle, Ward pointed a gun, first at Baldwin, then
at Tuttle through the rear window of the truck, and shouted at them to get
away from the car and leave. Tuttle released the car, Baldwin got into the
truck, and they drove a short distance away and called police. Kim Wilson,
Ward's girlfriend, then drove off in the Buick.
When police officers arrived, Ward cooperated, acknowledged that he had a
gun, and said he had a carry permit. Officer Massey found a loaded Smith &
Wesson pistol in Ward's jacket pocket. The gun was similar in appearance
to that described by Baldwin and Tuttle.
Ward was arrested. After being advised of his Miranda1 rights, Ward told
the arresting officer that two men had come to repossess his car and he had
chased them off. He said he had just missed a car payment and would get it
sorted out with the bank, but he was not going to let them repossess the
car. In a search incident to the arrest, Officer Massey found a baggie of
methamphetamine in Ward's pants pocket.
Ward was charged with two counts of assault in the second degree and one
count of possession of methamphetamine. The jury found him guilty as
charged, and found that Ward was armed with a firearm during the assaults.
The trial court sentenced Ward to 5 months on each assault (an exceptional
sentence below the standard range) and 5 months on the possession charge,
to run concurrently. Consecutive 36-month firearm enhancements brought
Ward's sentence to 77 months. The court also ordered Ward to provide a
biological sample of DNA pursuant to RCW 43.43.754. Ward appeals his
assault conviction on grounds of ineffective assistance of counsel, and
also appeals his sentence.
DISCUSSION
Ineffective Assistance of Counsel. When a defendant claims he has been
deprived of the Sixth Amendment right to effective assistance of counsel,
we begin with a strong presumption that counsel's conduct fell within the
wide range of reasonable professional assistance. In re Personal Restraint
of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998) (citing Strickland v.
Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)).
To establish a claim of ineffective assistance of counsel, Ward must show
that his trial attorney's representation was deficient, and that the
deficiency prejudiced his defense. State v. Thomas, 109 Wn.2d 222, 225-26,
743 P.2d 816 (1987) (quoting Strickland, 466 U.S. at 687). To meet the
first prong of this test, the defendant must show that counsel's
representation fell below an objective standard of reasonableness. Thomas,
109 Wn.2d at 226 (citing Strickland, 466 U.S. at 688). To show prejudice,
the defendant must show a reasonable probability that the outcome would
have been different absent the attorney's deficient performance.
Thomas,109 Wn.2d at 226 (citing Strickland, 466 U.S. at 693).
Ward argues that his attorneys were ineffective for failing to request a
jury instruction on the lesser included offense of unlawful display of a
weapon. A defendant is entitled to an instruction on a lesser included
offense if two conditions are met: each of the elements of the lesser
offense must be elements of the offense charged (the legal prong), and the
evidence must support an inference that only the lesser crime was committed
(the factual prong). State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382
(1978). The State concedes that unlawful display of a firearm is a lesser
included offense of second degree assault with a deadly weapon, but
contends the record did not support a rational inference that Ward
committed only that crime, to the exclusion of assault in the second
degree. See State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150
(2000). In this inquiry, we view the evidence in the light most favorable
to the party requesting the instruction. Fernandez-Medina, 141 Wn.2d at
455-56.
To convict a defendant of second degree assault, the jury must find
specific intent to create reasonable fear and apprehension of bodily
injury. State v. Byrd, 125 Wn.2d 707, 713, 887 P.2d 396 (1995). Such
intent may be inferred from pointing a gun, but not from mere display of a
gun. State v. Eastmond, 129 Wn.2d 497, 500, 919 P.2d 577 (1996). To
convict a defendant of unlawful display, the jury must find the defendant
displayed a weapon in a manner manifesting an intent to intimidate another
or warranting alarm for another's safety. RCW 9.41.270(1).
Ward testified that he believed Baldwin and Tuttle were trying to steal his
car, and that Baldwin came toward him with a crowbar. Both he and Wilson
testified that Ward told the men he had a gun, ordered them to leave his
property, and then displayed the gun by opening his jacket. Ward and
Wilson both testified that Ward did not point his gun. Viewing the
evidence in the light most favorable to Ward, a jury could decide that Ward
committed only the crime of unlawful display of a weapon. Ward was
entitled to an instruction on unlawful display of a weapon because both the
legal and factual prongs of the Workman test were satisfied.
The State points out that the unlawful display statute does not apply to
any act committed in a defendant's place of abode, and argues that an
instruction on unlawful display was unavailable because Ward was standing
on his front porch at the time of the incident. This point was not really
litigated, however. Testimony as to Ward's exact location at the time of
the display was inconclusive,2 but was sufficient for a rational jury to
determine that Ward was no longer on his porch. Ward was entitled to the
instruction.
The State also contends that counsel's failure to request the instruction
was legitimate trial strategy, an 'all or nothing' choice to force the jury
to acquit on the greater charge and prevent conviction (by compromise or
otherwise) on the lesser. We have carefully examined the record, and must
disagree.
First, the potential jeopardy for Ward was considerable. He faced 89
months in prison for the two assaults, including the mandatory firearm
enhancements.3 Unlawful display of a weapon, by contrast, is a gross
misdemeanor carrying a maximum penalty of one year in jail and revocation
of a concealed weapons permit. RCW 9.41.270(2); RCW 9.92.020. Misdemeanor
offenses are not subject to the imposition of firearm enhancements. Former
RCW 9.94A.510(3) (2000).
Second, Ward's defenses were the same on both the greater and lesser
offenses. His theory at trial was lawful defense of self and property.
These are complete defenses to both second degree assault and unlawful
display of a weapon. RCW 9.41.270(3)(c). An instruction on the lesser
included offense was therefore at little or no cost to Ward. If the jury
had believed Ward acted lawfully, he would have been acquitted of both the
greater and lesser offenses. If the jury did not believe Ward acted
lawfully, but doubted whether he pointed his gun, he would have been
convicted only of the misdemeanor.
Finally, self-defense as an all or nothing approach was very risky in these
circumstances, because it relied for its success chiefly on the credibility
of the accused. Ward testified he believed Tuttle and Baldwin were there
to steal his car, and that Baldwin came toward him carrying a raised
crowbar. But the arresting officers testified Ward told them he was trying
to stop a repossession. This greatly impeached Ward's credibility on the
defense of property theory, and also called into question his testimony
that Baldwin was carrying a crowbar in a menacing fashion, thus undermining
his theory of self-defense as well. Ward's credibility was further damaged
when his testimony about the methamphetamine directly conflicted with his
counsel's opening statement. Given the developments at trial, and the
starkly different potential penalties, it was objectively unreasonable to
rely on such a strategy.
In these circumstances, we can see no legitimate reason to fail to request
a lesser included offense instruction. The all or nothing strategy exposed
Ward to a substantial risk that the jury would convict on the only option
presented, two second degree assaults.
As the United States Supreme Court has stated:
{I}t is no answer to petitioner's demand for a jury instruction on a lesser
offense to argue that a defendant may be better off without such an
instruction. True, if the prosecution has not established beyond a
reasonable doubt every element of the offense charged, and if no lesser
offense instruction is offered, the jury must, as a theoretical matter,
return a verdict of acquittal. But a defendant is entitled to a lesser
offense instruction . . . precisely because he should not be exposed to the
substantial risk that the jury's practice will diverge from theory. Where
one of the elements of the offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury is likely to resolve
its doubts in favor of conviction.

Keeble v. United States, 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed.
2d. 844 (1973).

It is also reasonably probable that the outcome would have been different.
During its deliberations, the jury asked whether 'assault in the second
degree {can} occur if a deadly weapon is shown but not pointed at a
victim.' Clerk's Papers at 42. At sentencing, the trial judge imposed an
exceptional sentence below the standard range, and commented:
Mr. Ward was indeed provoked in his actions by incredibly foolish acts by
these men . . . that but for the acts of the complainants, who appeared in
the dark at Mr. Ward's home, without any identification, in an unmarked
vehicle, . . . that provoked the act that Mr. Ward exercised.

Report of Proceedings (June 27, 2003) at 23.

We reverse and remand for a new trial on the assault charges.
Issues Decided in Anticipation of Remand. Ward also contends that the
trial court violated double jeopardy principles when it imposed the two
firearm enhancements for the use of a single pistol and that the sentencing
condition requiring Ward to provide a DNA sample violated his state and
federal constitutional rights. Because these issues may again arise upon
retrial, we address them both.
Firearm Enhancements. Ward was sentenced to two consecutive 36-month
firearm enhancements under former RCW 9.94A.510(3) for the use of a Smith &
Wesson pistol during the two assaults. Ward contends the firearm
enhancements violate double jeopardy principles, because only one pistol
was used in the commission of the crimes.
Washington courts have repeatedly rejected double jeopardy arguments
regarding weapon enhancements. State v. Huested, 118 Wn. App. 92, 95, 74
P.3d 672 (2003) (citing State v. Claborn, 95 Wn.2d 629, 628 P.2d 467
(1981)). In Claborn, the defendant was armed with a single pistol during
commission of burglary and theft; the court imposed two separate firearm
enhancements. The Supreme Court noted that even though the crimes were
close in point of time, the enhancements applied to separate crimes with
different elements. Claborn, 95 Wn.2d at 636-37. Secondly, the court held
that double jeopardy was not implicated because the weapon enhancements
were not criminal offenses, but 'merely limit{ed} the discretion of the
trial court . . . in the setting of minimum sentences.' Claborn, 95 Wn.2d
at 637. In Huested, the defendant was convicted of committing first degree
burglary and first degree rape while armed with a single knife. We held
that double jeopardy was not violated by two weapon enhancements because
RCW 9.94A.510(4) 'unambiguously shows legislative intent to impose two
enhancements based on the single act of possession a weapon, where there
are two offenses eligible for an enhancement.' Huested, 118 Wn. App. at
95.
These cases control. If Ward is again convicted of assaults on two
separate victims, each with the use of a firearm, former RCW 9.94A.510(3)4
requires multiple enhancements, served consecutively. We therefore reject
Ward's arguments.
DNA Sample. RCW 43.43.754 requires convicted felons to provide DNA
samples. Ward contends the statute authorizes a warrantless search without
probable cause, in violation of the Fourth Amendment of the United States
Constitution and the Washington Constitution. We reject his arguments for
the reasons set forth in State v. Olivas, 122 Wn.2d 73, 856 P.2d 1076
(1993), and State v. Surge, 122 Wn. App. 448, 94 P.3d 345 (2004).
Reversed and remanded for a new trial.
FOR THE COURT:
/s/ ELLINGTON, A.C.J.
/s/ BECKER, J. /s/ GROSSE, J.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
2 Both Baldwin and Tuttle testified that they were not sure where Ward was
at the time of the incident, but believed he had come down the porch steps.
Wilson testified Ward was on the porch. Ward's own testimony was unclear.
3 The standard range on each assault was 13 to 17 months, plus the
mandatory 36-month firearm enhancement on each count. Former RCW 9.94A.510
(2000).
4 Effective July 1, 2004, the relevant sections of former RCW 9.94A.510
were replaced by RCW 9.94A.533.
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