Opinion
No. 36985-1-II.
February 3, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-1-01909-1, Thomas P. Larkin, J., entered November 9, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Armstrong, JJ.
Mark Anthony Ruesga appeals and asks us to reverse one of two convictions for violating a domestic violence court order, under former RCW 26.50.110 (2007). He argues that these two convictions violate his constitutional right to be free from double jeopardy because his continuous residence with Deanna Lowell cannot give rise to two separate units of prosecution for unlawfully having contact with her. In his statement of additional grounds, Ruesga argues that (1) he was denied his right to a speedy trial, (2) the prosecutor improperly introduced testimony and evidence about his prior offense history, and (3) he received ineffective assistance of counsel. We affirm.
U.S. Const. amend. V; WA Const. art. I, § 9.
FACTS A. Violation of No Contact Order
On April 7, 2005, the Pierce County Superior Court entered an order prohibiting Mark Anthony Ruesga from having any contact with Deanna Lowell for five years. The order states:
Ruesga and Lowell had known each other approximately 16 years and have three children together. The record does not show why the court ordered Ruesga to have no contact with Lowell.
IT IS HEREBY ORDERED pursuant to RCW 10.99 and 26.50 that the defendant shall have no contact, directly or indirectly, in person, in writing, by telephone, or electronically, either personally or through any other person, with: DEANNA LOWELL.
Plaintiff's Exhibit 1.
Two years later, in spring 2007, Ruesga moved into Lowell's house and stayed for about three weeks. In the week leading up to April 7, 2007, Ruesga left the house and returned every day, to meet with his probation officer. On April 8, Lowell dialed 911, but hung up before speaking with an operator. When 911 dispatch called back, Lowell stated that she needed help and then hung up again. Two police officers responded, and confirmed the no-contact order prohibiting Ruesga from being in contact with Lowell. The officers then entered the house and arrested Ruesga.
The trial court instructed jury to disregard the references to Ruesga's probation officer; but Ruesga's daily comings and goings remained before the jury.
B. Procedure
On April 9, 2007, the State charged Ruesga with two counts of violating a domestic violence court order under former RCW 26.50.110. In the original information, the State alleged unlawful contact "on or about the 7th day of April" (Count I) and "during the period between the 1st day of April, 2007 and the 6th day of April, 2007" (Count II). Clerk's Papers (CP) at 1-2. Before trial, on August 28, the State filed an amended information, changing the alleged dates of unlawful contact to "on or about the 8th day of April" (Count I) and "during the period between the 1st day of April, 2007 and the 7th day of April, 2007" (Count II). CP at 7-9. The State also alleged that Ruesga had twice before been convicted of violating a protection order, thus increasing the crime's classification from a gross misdemeanor to a class C felony. Former RCW 26.50.110(1)(5); CP at 2, 9.
In the original information, the State also charged Ruesga with two counts of Furnishing Liquor to a Minor for trying to make his six-year-old twins drink his beer. The trial court later dismissed these counts based on the statutory parental exception.
The State asserts in its brief that the date in Count I was amended from April 8 to April 7 and the dates in Count II were amended from April 1-7 to April 1-6. We assume these are typographical errors.
The trial court granted Ruesga's attorney's request for a continuance of the June 4 trial date until July 9 in order to allow additional time for investigation. On July 9, again at Ruesga's attorney's request, the trial court granted another continuance until August 23. The trial court called Ruesga's case for trial on Thursday, August 23; it then recessed until Monday, August 27.
Ruesga was present for both hearings, but he refused to sign either continuance order.
When court reconvened on August 27, Ruesga's attorney appeared with a sprained ankle and asked the trial court to address only pre-trial motions that day and to wait until the following day to begin jury selection. The trial court granted defense counsel's request. The next day, before jury selection, Ruesga, acting on his own without his attorney, moved for dismissal, claiming violation of his right to a speedy trial. The trial court denied the motion. The parties then selected a jury.
Ruesga raised this motion on his own, without help from his counsel.
During the State's case in chief, Lowell testified that Ruesga had lived with her at her house for approximately three weeks and that in the week leading up to April 7, he had left the residence every day. Two police officers testified about having responded to Lowell's 911 call and arresting Ruesga at Lowell's house on April 8. The State also called Jennifer Sievers, a Pierce County deputy prosecuting attorney, who established (1) the existence of the protection order prohibiting Ruesga from being in contact with Lowell, and (2) that Ruesga had two prior convictions for violating a protection order.
Only one of the convictions, the one dated 3-13-03, is part of the record on appeal. Sievers testified about the record of the other conviction, but it is not included in the Clerk's Papers.
Ruesga testified that, although he had been in contact with Lowell at her residence on April 8, 2007, he did not know that there was a court order prohibiting him from contacting her.
Ruesga did not testify that he had maintained continuous contact with Lowell from April 1 to April 8, nor did he testify that he had ever parted company with her during that time.
At the end of the two-day trial, the court instructed the jury that, to convict Ruesga of Count I, it must find beyond a reasonable doubt:
(1) That on or about the 8th day of April, 2007, the defendant willfully had contact with Deanna Lowell;
(2) That such contact was prohibited by a no-contact order;
(3) That the defendant knew of the existence of the no-contact order;
(4) That the acts occurred in the State of Washington.
CP at 21, Instruction No. 6. The instruction for Count II was identical except that it required the jury to find "[t]hat at some point between the 1st day of April, 2007 and the 7th day of April, 2007, the defendant willfully had contact with Deanna Lowell." CP at 22, Instruction No. 7. During closing, both Ruesga and the State argued to the jury that, in order to convict on both counts, it must find that Ruesga had made contact with Lowell, left, and then made contact with her again.
The jury convicted Ruesga on both counts. It also found by special verdict that Ruesga had twice before been convicted of violating a no-contact order. The trial court sentenced Ruesga to 56 months confinement on each count, to be served concurrently.
Ruesga appeals, asking us to reverse one of his convictions.
ANALYSIS I. Double Jeopardy
Ruesga argues that his two convictions for violating a protection order violate double jeopardy prohibitions because his continuous residence with Lowell for three weeks could give rise to only one "unit of prosecution." We disagree. Assuming, without deciding, that continuous contact with the victim could constitute only one "unit of prosecution," we hold that (1) the evidence is sufficient to show that Ruesga's contact with Lowell was not continuous; and (2) therefore, charging Ruesga with both counts did not violate double jeopardy principles.
U.S. Const. amend. V; WA Const. art. I, § 9.
A. Preservation of Error for Appeal
Ruesga did not object below to his two charges on double jeopardy grounds. He also did not object to the trial court's now-alleged "failure" to instruct the jury that it must find that one act of violation of a protective order was complete before another violation of the protective order began; nor did he propose such an instruction at trial.
Generally, a party may not raise an issue for the first time on appeal unless the issue implicates a manifest error affecting a constitutional right. See RAP 2.5(a)(3). We use a two-part test to determine whether we should allow a new argument for the first time on appeal: First, we determine whether the error is truly constitutional. Second, we determine whether the error is manifest. State v. Kirkpatrick, 160 Wn.2d 873, 880, 161 P.3d 990 (2007) (citing State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). "An error is manifest when it has practical and identifiable consequences in the trial of the case." State v. Ridgley, 141 Wn. App. 771, 779, 174 P.3d 105 (2007) (quoting State v. Stein, 144 Wn.2d 236, 240, 27 P.3d 184 (2001)).
An appellant may raise the issue of whether multiple convictions for violating the same statute violate double jeopardy principles for the first time on appeal because the alleged error is a manifest error affecting the defendant's constitutional rights. State v. Turner, 102 Wn. App. 202, 206, 6 P.3d 1226 (2000). Thus, in spite of Ruesga's failure to preserve this constitutional double jeopardy issue for appeal, we address it.
B Standards of Review
We review the interpretation and application of the double jeopardy clause de novo. State v. Knight, 162 Wn.2d 806, 810, 174 P.3d 1167 (2008) (citing State v. Womac, 160 Wn.2d 643, 649, 160 P.3d 40 (2007)). The appropriate remedy for double jeopardy violations is to dismiss with prejudice the convictions that violate double jeopardy. Knight, 162 Wn.2d at 810. We find no double jeopardy violations here.
The test for determining the sufficiency of the evidence is whether a rational person, after viewing the evidence in the light most favorable to the State, could have found each element of the crime beyond a reasonable doubt. State v. Montgomery, 163 Wn.2d 577, 586, 183 P.3d 267 (2008) (citing State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980)). When a criminal defendant challenges the sufficiency of evidence, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom. State v. Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008); State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd 95 Wn.2d 385, 622 P.2d 1240 (1980)).
We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
C. Unit of Prosecution
The double jeopardy clauses of the United States and Washington Constitutions provide that no person shall be "twice put in jeopardy" for the same offense. U.S. Const. amend. V; WA Const. art. I, § 9. Although double jeopardy is a constitutional issue, "the analytical framework centers around a question of statutory interpretation and legislative intent." State v. Varnell, 162 Wn.2d 165, 168, 170 P.3d 24 (2007). "[W]hen a defendant is convicted of multiple violations of a single statute, the double jeopardy question focuses on what the legislature intended as the punishable act under the statute, i.e., what is the unit of prosecution." State v. Leyda, 157 Wn.2d 335, 342, 138 P.3d 610 (2006) (citing State v. Westling, 145 Wn.2d 607, 610, 40 P.3d 669 (2002)).
The jury convicted Ruesga on two counts of violating a domestic violence court order under former RCW 26.50.110. That statute provides in relevant part:
(1) Whenever an order is granted under this chapter, chapter 7.90, 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the restraint provisions . . . is a gross misdemeanor except as provided in subsections (4) and (5) of this section.
. . . .
(5) A violation of a court order issued under this chapter . . . is a class C felony if the offender has at least two previous convictions for violating the provisions of an order issued under this chapter.
Former RCW 26.50.110.
Ruesga and the State agree that, under this statute, (1) a unit of prosecution continues as long as the unlawful contact continues, and (2) some physical separation between contacts is necessary to support separate units of prosecution. Although not directly on point, State v. Spencer, 128 Wn. App. 132, 114 P.3d 1222 (2005) supports this analysis. In Spencer, Division One of our court held that the crime of violating a no-contact order continues as long as the person "remains within the prohibited zone." Spencer, 128 Wn. App. at 137-38 (holding that violation of a no contact order could be the basis of a residential burglary charge because the crime continued as long as the defendant was within a certain distance of the protected party's residence).
Because the statute punishes "a violation" of a no contact order, each time a defendant contacts the protected party, a separate unit of prosecution arises. Washington courts have "consistently interpreted the legislature's use of the word `a' in criminal statutes as authorizing punishment for each individual instance of criminal conduct." State v. Ose, 156 Wn.2d 140, 147, 124 P.3d 635 (2005) (holding that legislature defined unit of prosecution in statute criminalizing possession of "a stolen access device" as each access device in defendant's possession).
The State charged Ruesga with violating the no-contact order during two separate time periods. Count I alleged a contact on April 8, 2007. Count II alleged a contact at some point between April 1, 2007, and April 7, 2007. Because these counts allege different periods of time, as long as there was a break in contact at some point between April 1 and April 8, the State did not violate double jeopardy principles by charging Ruesga with both counts. We next examine the evidence of a break between these two charging periods.
D. Sufficiency of the Evidence 1. Proof of at least two separate contacts
Ruesga argues that his two convictions punish the same contact because there is no evidence to show that his contact with Lowell was not simply one long continuing contact. We disagree. Taking the evidence in the light most favorable to the State, as we must on appeal, there is sufficient evidence to support the jury's verdict that during the period from April 18, Ruesga made contact with Lowell on at least two separate occasions as charged.
Mines, 163 Wn.2d at 391.
Lowell testified as follows at trial:
Q. Now, before the 8th, between the 1st and the 8th, do you know if Mark was working at that time?
A. No, I don't.
Q. Were you working at that time?
A. No, I wasn't.
Q. Between the 7th and the 8th, did you ever leave the house, go out and get groceries or anything else?
A. I don't think so.
Q. How about [Ruesga]? Did he leave the 7th or the 8th?
A. I don't think so.
Q. In that preceding week, did Mark [Ruesga] leave the house?
A. Yes. He went to his probation officer every day.
Q. So he left —
[Court sustains objection and instructs jurors to disregard reference to probation officer.]
Q. So he left every day though? Is that between, say, the preceding week?
A. Mm-hm. (Witness answers affirmatively.)
Report of Proceedings (RP) Vol. III at 50-51.
Lowell differentiated between Ruesga's daily solo departures during the week preceding April 7 or 8 (the basis for Count II) and both of them staying home on April 7 and 8 (the basis for Count I), when she did not think that either Ruesga or she had left the house, not even for groceries. The following evidence is sufficient to show that Ruesga committed both counts: Ruesga's admission that he had been in contact with Lowell, Lowell's testimony that Ruesga had left the house every day during the charged one-week period, and the police finding Ruesga in Lowell's home on April 8. Ruesga committed Count II when he initially came to Lowell's home to live with her and continued to be with her into the April 1 to April 7 charging period. Ruesga committed Count I when he returned to Lowell's home after having left during the preceding week, such that the police encountered him at Lowell's house when they responded to her 911 call on April 8. Thus, Ruesga's presence on April 8 was a second violation of the no contact order.
It was reasonable for the jury to have inferred from Ruesga's presence on April 8, coupled with the other evidence, that he had returned to Lowell's home at least once following his daily departures from her home during the preceding week.
Each day when Ruesga left and returned to Lowell's house, he initiated a new contact, committing a new violation of the no contact order and giving rise to another unit of prosecution. Here, however, the State chose to charge Ruesga with only two counts, rather than multiple counts for all the days during the preceding week when he had left Lowell and then recontacted her in her home.
2. Order directed "no contact" with Lowell of any kind
Ruesga also argues that there was "no evidence presented as to whether [he] was ever outside the prohibited zone identified in the order. . . . She never said where [his] appointment was, how many feet from her [he] went . . . or how long he was absent before returning." Br. of Appellant at 8. This argument also fails.
The order prohibiting Ruesga from contacting Lowell did not identify any such "prohibited zone" or minimum distance he should keep away from her. On the contrary, it simply ordered: "[T]he defendant shall have no contact . . . with: DEANNA LOWELL." Plaintiff's Exhibit 1. Thus, this case is not like Spencer, in which the protection order prohibited Spencer from coming within 1000 feet of the victim's residence or workplace. Spencer, 128 Wn. App. at 135; Plaintiff's Exhibit 1. Thus, it would have been irrelevant if Ruesga's daily appointments had been across the street.
What was relevant was that Ruesga left Lowell's home daily for his appointments, impliedly returning after each appointment and then leaving again the next day for the next appointment.
E. Jury Instructions
Ruesga fails to assign error to the trial court's jury instructions, contrary to the requirements of RAP 10.3(g). Nor did he object below to the trial court's alleged failure to give the instruction that he now claims should have been given, contrary to RAP 2.5(a). Thus, technically we need not consider his instruction-related arguments that (1) the trial court should have instructed the jury sua sponte that it must find that "one act of violation of a protective order was complete before another violation of the protective order began," Br. of Appellant at 7; (2) failure to give such an instruction violates double jeopardy principles because the jury "was never asked to decide the facts necessary" to prove both counts. Br. of Appellant at 8.
Nevertheless, because Ruesga clearly argues this point in connection with his constitutional double jeopardy challenge, we address it. Assuming, without deciding that failure to give such instruction was error, the error was harmless because Ruesga fails to show that the outcome of the trial would have differed if the trial court had given such an instruction sua sponte. In the absence of such an instruction, both Ruesga and the State informed the jury that, in order to convict on both counts, it was necessary for Ruesga both to have parted company with Lowell and then to have reinitiated contact with her.
"In appropriate circumstances, we will waive technical violations of RAP 10.3(g), especially, where . . . the appellant's brief makes the nature of the challenge clear." Harris v. Urell, 133 Wn. App. 130, 137, 135 P.3d 530 (2006) (citing Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 709-10, 592 P.2d 631 (1979)), review denied, 160 Wn.2d 1012 (2007).
For example, in its closing argument the State clearly explained to the jury that it needed to find a separate contact for each count in order to convict:
I can't charge him a count for every minute that they're in contact with each other. I can't charge him with every hour that they're in contact with each other or every day that they're in contact with each other, okay? I charged him with another count because at some point, at some point, between the 1st and the 7th — let's get the dates in there. That is Jury Instruction 7.
For Count 2, it is exactly the same as 6, except for the date. At some point — and she said he left daily — he left, okay? So when he leaves and he comes back, that initiates another violation.
RP Vol. IV at 160 (emphasis added). Later, the prosecutor added:
[Y]ou have to be convinced that he left some time between the 1st and the 8th for there to even be two counts. You have to believe Deanna Lowell that he was living there and that he left. . . . [O]ut of all the times that he left or didn't leave and came back, you have to agree that at least once — all of you have to agree at least once that that happened.
RP Vol. IV at 161-62.
Similarly, during his closing argument, Ruesga stressed to the jury that one continuing contact could not support convictions for two counts, for which there had to be some break in the contact:
I agree wholeheartedly with [the State] in the unit of prosecution for violation of a protection order. If someone were to make contact with someone in violation of a protection order and remain in contact with that person, then that constitutes one unit of prosecution.
RP Vol. IV at 171. Furthermore, we presume that the jury followed the court's instruction that "[t]he lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law." CP at 15, Instruction No. 1.
State v. Kirkman, 159 Wn.2d 918, 937, 155 P.3d 125 (2007).
Therefore, we are satisfied beyond a reasonable doubt that the jury would have reached the same result if the court had given the instruction sua sponte that Ruesga now proposes for the first time on appeal. Error, if any, was harmless.
II. Statement of Additional Grounds
Ruesga argues in his Statement of Additional Grounds (SAG) that (1) his right to a speedy trial was violated, and (2) the prosecutor improperly brought up his past crimes, court appearances, and judgments and sentences. Ruesga further asserts that his counsel provided ineffective assistance on both of these issues. His arguments fail.
A. Speedy Trial
Ruesga argues that the trial court violated his right to a speedy trial because he was not brought to trial within 60 days and he did not sign any agreements for the continuances. SAG. Without consulting his attorney, Ruesga filed a motion at trial for relief based on speedy trial violations. The trial court denied that motion.
Although Ruesga did not so state in his SAG, we presume he means to argue that the State did not bring him to trial within 60 of his arraignment as required by Criminal Rule 3.3.
This pro se motion is not part of the record on appeal.
Where a defendant is detained in jail, CrR 3.3 provides that the defendant must be brought to trial within 60 days after the arraignment. CrR 3.3(b)(1); CrR 3.3(c)(1). Where a defendant is in custody, he must be arraigned within 14 days after the information is filed. CrR 4.1(a). Where a motion for a continuance is granted, the delay granted by the court is excluded from the 60-day period, thus extending the speedy trial period. CrR 3.3(e)(3).
A court may grant a motion to continue brought by either party when the continuance is required in the administration of justice and the defendant will not be prejudiced by the continuance. CrR 3.3(f)(2). "The bringing of such motion by or on behalf of any party waives that party's objection to the requested delay." CrR 3.3(f)(2). Thus, a continuance over the defendant's objection constitutes an appropriate excludable delay where the defendant does not show prejudice to the presentation of his case. State v. Iniguez, 143 Wn. App. 845, 853, 180 P.3d 855 (citing State v. Campbell, 103 Wn.2d 1, 14-15, 691 P.2d 929 (1984)), review granted, 164 Wn.2d 1025, 195 P.3d 958, and review denied on consolidated case in State v. McIntosh, No. 25223-0-III, 164 Wn.2d 1028, 195 P.3d 958 (2008). Such is the case here.
The State filed the information on April 9, 2007. Although the record does not show on what day the court arraigned Ruesga, his original trial date likely fell within 60 days of his arraignment, as required by CrR 3.3, because trial was scheduled for 57 days after the State filed the information. The trial court granted two continuances at the request of Ruesga's attorney, who brought the motions on Ruesga's behalf. These defense-requested continuances, thus, constituted waivers under CrR 3.3(f)(2), in spite of Ruesga's disagreement with his attorney's actions on his (Ruesga's) behalf. Accordingly, the trial court did not violate Ruesga's right to a speedy trial under CrR 3.3.
On May 23, on Ruesga's attorney's motion, the trial court granted the defense a five-week continuance from June 4 to July 9 in order to allow Ruesga additional time for investigation. On July 9, the court again granted Ruesga's attorney's request for a continuance and continued the trial from July 9 to August 23. That Ruesga refused to sign the continuance order does not undo his waiver under CrR 3.3(f)(2).
B. Effective Assistance of Counsel
We give great judicial deference to trial counsel's performance and begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 2P.2d 1251 (1995). To prove ineffective assistance of counsel, an appellant must show that (1) counsel's performance was deficient; and (2) the deficient performance prejudiced him. State v. Thomas, 109 Wn.2d 222, 225, 743 P.2d 816 (1987). Counsel's performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re the Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). Such is not the case here.
Ruesga does not explain how he believes counsel was ineffective with respect to the continuances; we assume that he means to argue that his attorney should not have requested the continuances. The order granting the first continuance states the reason for continuance as: "Additional time for investigation required." CP at 188. The second continuance order states the reason as: "Defense still waiting for investigator to complete interviews w/witnesses." CP at 189. The record on appeal does not include the hearings at which these continuances were requested or entered; thus, we cannot tell from the record why defense counsel was unable to complete witness interviews in time for the original trial date. It is, however, objectively reasonable for counsel to wish to be prepared for trial. Thus, based on the presumption of effectiveness, especially in the absence of specific allegations of deficient performance, Ruesga has failed to establish the first prong of the ineffective assistance of counsel test.
But even if counsel's performance had been deficient, Ruesga does not show how the outcome of his trial would have been different and more beneficial to his case if his defense attorney had not requested the continuances. On the contrary, the record suggests that Ruesga benefited from the additional time for his attorney to prepare his defense.
C. Prior Offenses
Ruesga next argues that the jury was prejudiced against him because the prosecutor "[brought] up [his] past crimes, court appearances, and also mention[ed his] J S's [Judgments and Sentences]." SAG. Ruesga did not object to the testimony or documentary evidence about his prior offense history at trial. Therefore, we do not address this issue on appeal. See RAP 2.5(a).
Unlike Ruesga's double jeopardy challenge, his ER 404(b) arguments do not implicate manifest constitutional error.
Nevertheless, we note that even if Ruesga had preserved this alleged error for appeal, his argument would fail. The State introduced his prior offense history to show (1) the existence of the domestic violence protection order he was charged with violating; (2) that he knew about the order; (3) that he had previously been convicted of violating a domestic violence protection order; and (4) therefore, that the sentencing enhancement for multiple violations applied. The evidence of Ruesga's prior violations was admissible under Evidence Rule 404(b) because the prior offenses were not introduced to show current conformity with past behavior. Moreover, the trial court instructed the jury that they were to consider the evidence of Ruesga's prior convictions only "for the limited purpose of answering the first question on the special verdict form." CP at 29, Instruction 14. Furthermore, contrary to Ruesga's argument, because this evidence of Ruesga's prior offense history was admissible, counsel did not render ineffective assistance by not objecting to the admission of this evidence.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, PJ. and ARMSTRONG, J., concur.