Opinion
No. 63664-2-I.
January 10, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Whatcom County, No. 09-1-00282-0, Charles R. Snyder, J., entered June 8, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Leach, A.C.J., and Schindler, J.
Garner appeals his conviction for two counts of felony violation of a no-contact order. He argues that the State failed to prove one of the counts beyond a reasonable doubt. He also argues that his attorney provided ineffective assistance of counsel by failing to object when the trial court made an improper comment during voir dire about sentencing and punishment. We hold that a rational trier of fact could have found Garner guilty beyond a reasonable doubt of the disputed count and that any error at trial was harmless. We affirm.
FACTS
Christi Garner (hereinafter Mrs. Garner) married Matthew Garner in 1996. They remain married, but have been separated since 2006. They have two children. In September 2008, Mrs. Garner obtained a no-contact order prohibiting Garner from coming near her or having any contact whatsoever with her in person or through others, by phone, mail or any means, directly or indirectly, except for e-mail or U.S. mail for the purposes of arranging visitation with their two children.
On March 6, 2009, a Friday, Garner called his wife's home to discuss the possibility of going out to lunch. Garner was interested in taking the kids for an overnight visit that weekend, but Mrs. Garner was resistant to that idea. Mrs. Garner did not return that call and deleted the message Garner left on her answering machine. Later that evening, Garner called his daughter's cell phone, and after speaking with his daughter he spoke with Mrs. Garner.
The next day, March 7, 2009, Mrs. Garner dropped her children off at her friends' house and asked them to call her if Garner should show up and try to take the kids for the weekend. Garner appeared at the house and said he wanted to take the children. The friends refused and called Mrs. Garner to tell her of the situation. Nervous about her husband's actions, Mrs. Garner called the police. At about the same time, Garner called the police to report the hostile treatment he received when trying to see his children. Garner then called his wife on her cell phone to tell her what was happening. At the time of that call, officers had already arrived at Mrs. Garner's house in response to her call to the police, and she showed the officers her cell phone while it was ringing. She told the officers she knew it was her husband's number and also showed them a copy of the no-contact order.
The officers determined that there was probable cause to support that Garner had violated the no-contact order, and they arrested Garner. Garner initially denied calling his wife that day, but when confronted with the fact that the officers were present with his wife when her phone rang he admitted to making the call.
Garner was charged with two counts of felony violation of a no-contact order. The jury found Garner guilty on both counts, and the court imposed standard range sentences to run concurrently. Garner timely appeals.
DISCUSSION
I. Sufficiency of the Evidence
Garner was convicted of two separate counts of felony violation of a no-contact order, the first arising from his actions on March 6, 2009 and the second arising from his actions on March 7, 2009. The trial court set forth the five elements of this crime in the jury instructions, which both parties agreed to. For the jury to convict, the State was required to prove beyond a reasonable doubt:
(1) That on or about [the day in question], there existed a no-contact order applicable to the defendant;
(2) That the defendant knew of the existence of this order;
(3) That on or about said date, the defendant knowingly violated a provision of this order;
(4) That the defendant has twice been previously convicted for violating the provisions of a court order; and
(5) That the defendant's act occurred in the State of Washington.
(Emphasis added.) In this case, the relevant part of the order restrained Garner from:
B. Coming near and from having any contact whatsoever, in person or through others, by phone, mail or any means, directly or indirectly. . . .
C. . . . DEFENDANT MAY CONTACT PROTECTED PARTY VIA EMAIL OR U.S. MAIL ONLY FOR THE PURPOSES OF SETTING UP THE EXCHANGE OF CHILDREN FOR SUPERVISED VISITATION. **NO TEXT MESSAGING**
(Boldface and underlining omitted.) Here, Garner admits to each of the five elements for the count from March 6. He also admits to meeting four of the five elements for the count from March 7. But, he argues that the State's evidence was not sufficient to prove the third element — that he knowingly violated a provision of the no-contact order on March 7. Garner asserts that while the order prohibited him from making "contact" with his wife, he never actually made any such contact that day. Mrs. Garner and the responding police officers saw on her caller identification function that Garner was calling her. However, Mrs. Garner did not answer the phone, and Garner did not leave a message. Accordingly, Garner argues that his conduct did not amount to actual contact.
Where a party challenges the sufficiency of evidence at trial, we review the evidence in the light most favorable to the prosecution to determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576, 210 P.3d 1007 (2009). In applying this test in a criminal case, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993).
Garner concedes that he attempted to violate the order by calling his wife, but argues that attempt is very different than actually achieving the contact that would amount to a violation of the court order. The State responds that the language of the no-contact order, broadly prohibiting any contact whatsoever, including by phone, text message, or any means, made Garner's phone call to his wife a plain violation of the order. In essence, the central dispute is over the definition of "contact" in the no-contact order and whether contact can be said to have existed without the actual exchange of verbal communication or the transmission of a message.
In State v. Ward, one of the two defendants, Rickey Baker, was subject to a similarly worded no-contact order, requiring him "`to have no contact with [the protected party] Ivanov in person, by telephone or letter, through an intermediary, or in any other way, except through an attorney of record.'" 148 Wn.2d 803, 815, 64 P.3d 640 (2003). Baker tried to contact Ivanov by calling his residence, but instead of reaching Ivanov, Baker reached and briefly spoke with Ivanov's spouse, who recognized Baker's voice. Id. Baker argued that the State's evidence demonstrated no more than his attempt to violate the no-contact order. Id. at 815-16. The Supreme Court, without concern for whether Ivanov's wife ever delivered any message to him, ultimately affirmed Baker's conviction for violation of the no-contact order: "The no-contact order prohibited Baker from contacting Ivanov by telephone or through an intermediary, and the evidence shows that Baker telephoned Ivanov's home and conveyed information about Ivanov to his wife. Based on this conduct alone, a jury was entitled to find that Baker violated the order." Id. at 816. The Supreme Court thus established that a defendant may be guilty of violating a no-contact order without ever effectuating any actual communication with the protected party.
Garner does not dispute that he called his wife's cell phone on March 7 or that he intended to speak with his wife. He also knew that he was not supposed to be calling her, as evidenced by his initial denial to officers about having made the call and by his deleting his call record before handing his phone over to the police. The reasoning in Ward applies with equal force here — while Mrs. Garner did not answer the call, she did receive it through her caller identification function and immediately recognized the number as her husband's. We hold that in a light most favorable to the State, this was sufficient evidence for the jury to find beyond a reasonable doubt that Garner "contacted" his wife and violated a provision of the no-contact order prohibiting any contact whatsoever by phone.
II. Ineffective Assistance of Counsel
Garner also claims that he received ineffective assistance of counsel when his attorney failed to object to the trial court's erroneous statements during voir dire. This objectionable conduct occurred during voir dire, when some of the jurors expressed a desire to know what sentence might result from a conviction. Prospective juror number 3 stated an unwillingness to serve fairly without first knowing about the possible punishment involved. That juror was dismissed for cause. The judge properly instructed that punishment was to be determined by the court — the jury was only to decide guilt or innocence, basing its decision on the facts and evidence rather than by seeking any particular outcome.
Prospective juror number 29 asked whether Washington has a three strikes provision. The prosecutor responded that there is such a provision. The juror then stated: "I think I would have a problem . . . with the possibility that I might send somebody to life in prison because of an awkward situation, say, if it was a domestic divorce with your kids or whatever, I would have a hard time living with that." The judge answered, "I think we can safely tell you at this point that this offense is not one that in and of itself would make a person eligible for three strikes." The juror responded, "Then I would be okay, with [sic] based on the facts."
To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance fell below an objective standard of reasonableness based on consideration of all the circumstances, and that the deficient performance prejudiced the trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007). The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). And, under the prejudice prong, a defendant must show a reasonable probability that, but for counsel's error, the result would have been different. Id. at 335. Garner cannot satisfy either of the prongs of this test.
Garner fails to demonstrate that his counsel's performance fell below an objective standard of reasonableness. As the State points out, there is at least one legitimate tactical reason for a defense attorney not to object or move for a mistrial here — the same jurors who expressed grave concern about being responsible for a harsh or excessive punishment were likely to be very sympathetic towards a criminal defendant. A defense attorney could reasonably make the tactical decision that, while jurors are not entitled to weigh sentencing concerns, a panel with such concerns would afford a criminal defendant a better chance at acquittal. Because counsel's actions could have been strategic, Garner cannot prove that counsel's performance was objectively unreasonable.
Additionally, Garner was not prejudiced by the trial court's erroneous statements or by his attorney's decision not to object — he cannot show that the outcome of his case would have been different if his attorney had objected.
In a noncapital case such as this one, there is a strict prohibition against informing the jury about sentencing considerations or potential punishment. State v. Townsend, 142 Wn.2d 838, 846, 15 P.3d 145 (2001). InTownsend, the Supreme Court addressed a similar issue, where the trial court and prosecutor had inappropriately commented on sentencing, informing the jury that the death penalty was not applicable in that case. 142 Wn.2d 842-43. The court held that such comments did constitute an error, but nonetheless determined that they were harmless and had no impact on the outcome: "The petitioner has failed to show that he was prejudiced in any way." 142 Wn.2d at 849. See also State v. Hicks, 163 Wn.2d 477, 488-89, 181 P.3d 831 (2008) (holding that defense counsel's performance was deficient for informing the jury that the case was noncapital and failing to object when the trial court and prosecution made similar references, but nevertheless holding that this deficient performance was not prejudicial).
Here, Garner has similarly failed to demonstrate that the outcome of his case would have been different if his counsel had raised an objection, or if the jurors had continued to operate under the erroneous assumption that the three strikes law could be applied here. There is no evidence that the jury was not careful in its deliberations or that the jury's knowledge about the inapplicability of the three strikes law had any bearing on its' verdict. Indeed, at trial, Garner freely admitted to all of the facts underlying the elements for the March 6, 2009 count of violating a no-contact order and also admitted to satisfying all but one of the elements for the March 7, 2009 count. The trial court's comment was harmless. Garner has failed to show that he was prejudiced, and accordingly, he fails to satisfy the second prong of the Strickland test, which requires a showing of prejudice resulting from his counsel's deficient performance.
III. Right to Fair Trial and Impartial Jury
Garner contends for the first time on appeal that his rights to an impartial jury and a fair trial were violated when the trial court made the statement to prospective jurors about potential punishment. But, the analysis of his ineffective assistance claim above demonstrates that Garner cannot show prejudice. To raise a new issue on appeal, a defendant bears the burden of identifying a manifest constitutional error and showing how it prejudiced his defense. State v. MacDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999); State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001). Here, Garner has not and cannot make a showing that his trial was prejudiced, so he may not raise this issue on appeal.
We affirm Garner's conviction for both counts of felony violation of a no-contact order.
WE CONCUR.