State Of Washington, V Kimlis Tek ( 2013 )

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t3Uf t OF APPEALS
DIVISION 11
42013 rAPR 23 fMF 12: (' I
S
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTONS
DIVISION II
STATE OF WASHINGTON,
No.42227 1 II
- -
Respondent, consolidated with
No. 42237 9 II
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V. and
No..
42247 6 II)
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KIMLIS TEK,
UNPUBLISHED OPINION
Appellant.
WIGGINS J. .
T.
P —
Defendant Kimlis Tek appealed his conviction following a jury trial
for offenses arising out of two assaults on his wife and numerous in-
person, mail, and telephone
communications prior to trial. Tek was sentenced for assault in the second degree, assault in the
first degree, two counts of witness tampering, and 36 counts of violation of a no-
contact order,
all with domestic violence enhancements. We hold that the evidence was sufficient to prove the
requisite intent for assault in the first degree; that the judge did not impermissibly comment on
the evidence; that the witnesses did not offer impermissible lay opinion testimony on an ultimate
issue; that Tek engaged in two separate courses of witness tampering; that the legislature
intended to make each act in contravention of a no-
contact order a separate violation under the
statute; and that Tek did not receive ineffective assistance of counsel.
Justice Charlie Wiggins is serving as a judge pro tempore of the Court of Appeals, Division II,
pursuant to CAR 21( ).
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FACTS
Incident One, May 28, 2010
On May 28, 2010, Tek and his wife Andrea had an argument and decided that they did
not want to be together any longer. When Andrea began to move Tek's clothes out of the closet
and onto the sofa, Tek became upset and retrieved a gun from the bedroom. Mentioning suicide,
Tek left the house, and Andrea called the police.
Unsure what Tek was planning to do with the gun, Andrea locked the door. Tek then
waved the gun at the window where Andrea was standing. In a 911 call, Andrea told operators
that Tek "just pointed the gun at [her]."Report of Proceedings (RP)at 515. Olympia police
3
arrived and took Tek into custody. When Tek was taken into custody, the magazine of his gun
was fully loaded, but there was no round in the chamber.
On May 30, Andrea visited Tek in the Thurston County Jail. There, Tek asked Andrea to
tell the court that he had not threatened her and to tell the police that "it wasn't a domestic
dispute." 3 RP at 472. Tek asked Andrea to go to court, tell the court that he had no prior
offenses, and "convince the judge"that they had never gotten into a fight and that he had never
threatened her. 3 RP at 473.
Upon his release from jail, Tek moved back in with Andrea, because she still wanted to
be with him.
Incident Two, December 24, 2010
On December 24, 2010, Andrea attempted to repair the family computer, but rendered it
inoperable instead. Tek became upset because he had been using the computer to talk online
with his family in Cambodia. Andrea then had some drinks.and spoke with her ex-
boyfriend on
2 Ms.Tek is hereinafter referred to by her first name to distinguish her from the defendant Tek.
No disrespect is intended.
K
No. 42227 1 II Cons. With
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the .phone. Following her conversation, Tek confronted Andrea, believing that she intended to
get back together with her ex-
boyfriend: Andrea then asked Tek to leave. Tek said he would
show"her, then retrieved a knife from the closet, removed it from a sheath, and cut Andrea on
the arm. 3 RP at 533 34.
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The knife was later found to be a military style knife, measuring seven and one half
- -
inches in length. The cut was approximately six inches long, passing down her forearm from
elbow to wrist. Dr. Lisa Skinner, an emergency room physician, found that the cut had gone
through an entire muscle and a portion of another muscle.
When Olympia police arrived, Tek had wrapped Andrea's arm in a towel and appeared to
be applying pressure to the wound. He admitted to slashing Andrea on the arm and asked
officers to shoot him in the head. During medical observation, Tek stated that:
I can't believe I just snapped. I didn't mean to hurt her. I•
never meant to hurt my
wife. Sometimes that bitch makes me crazy. I tried to stop the bleeding with the
blue towel. I don't deserve to live for this shit.
1 RP at 159. By the time paramedics transported Andrea to the hospital, she was beginning to
pass out. Andrea was treated in the emergency room for a total of eight hours and received 2 sets
of stitches and_ 8__ hand therapy. At the time of trial, she
by-
staples,_
five to
followed- six weeks of
2
testified that she was "completely healed,"
albeit with some lingering numbness and a permanent
scar. 3 RP at 540. Andrea returned to work as a dental technician within several days of the
incident.
On December 27, 2010,the Thurston County Superior Court entered a pretrial no-
contact
order pursuant to chapter 10. 9 RCW Between then and the beginning of trial, Tek placed at
9
least 40 calls from the Thurston County Jail to Andrea. Some of the calls were
phone
continuations of the same conversation, because the jail's telephone system automatically
3
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disconnected all calls after 1'5 minutes. During these calls, Tek and Andrea discussed a variety of
subjects, including an incident where Tek's cellmate had his case dismissed because his wife did
not attend his trial. Tek asked Andrea to take a vacation and "disappear"during March. 2 RP at
326. He told Andrea that as his wife, she did not have to testify against him. He told Andrea she
should have kept [her] mouth shut...."at 335. He then asked Andrea specifically not to
2 RP
show up if he went to trial.
Tek also sent Andrea more than five letters. In these letters, he asked her to "
ignore all
those lying ass prosecutors," to give the prosecutors anything to work with, and not to testify
not
against him. 2 RP at 357. Tek's trial began on May 16, 2011.
The Trial
In connection with the May 28, 2010 incident, Tek was charged with assault in the second
degree with firearm and domestic violence enhancements, in contravention of RCW
021(
9A. 6.9. 9. ), 99. In connection with the December 24,
c 825,
3 ),4A. 533( 4A.and 10.
9 3
9 020.
2010 incident, Tek was booked on assault in the second degree, but the charge was upgraded to
assault in the first degree later that night. Prosecutors charged Tek with assault in the first degree
with deadly__
weapon and domestic violence enhancements, in contravention of RCW
a),94A. 9. ).
1)( 9.
011(
9A. 6.
3 10. 9.825,
020,
9 533( 4A. Prosecutors also charged Tek with two
4
9 5
counts of witness tampering with a domestic violence enhancement, in contravention of RCW
a) 9
120(
9A. 2. 10. 9.one charge arose out of the May 30, 2010 visit, and the other
1 and 020;
7 )(
from the phone calls and letters between February 9, 2011, and March 28, 2011. Finally,
prosecutors charged Tek with 36 counts of violation of a pretrial no-
contact order with a
domestic violence enhancement, in contravention of RCW 26. 0. 10. 9.
1 040(
5 ), 9 ),
110( 2
040(
10. 9. 10. 9.
4 and 020.
9 ), 9
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At trial, the State introduced a number of photographs, including a photograph of Dr.
Skinner examining Andrea's wound (State's exh. 25) and a photograph of the wound itself
State's exh. 27).State's exhibit 25 did not indicate the injury. Before allowing the photographs
to be published to the jury, the trial judge admonished the jury that State's exhibit 27 was
somewhat graphic"and that the jurors "
may want to look at it quickly or not at all." RP at 57.
1
Counsel did not object.
Olympia police officer Cory Johnson testified that he initially booked Tek for assault in
the second degree before changing the charge to assault in the first degree. Similarly, detective
Russell Gies testified that he "upgraded"the charge based on "the severity'of the injury that [he]
had become aware of during the investigation."2 RP at 247 48. Counsel did not object to either
-
testimony.
The State introduced Tek's letters and the recordings of his phone conversations through
detective Gies. Detective Gies testified that Tek was "attempting to both have her change her
testimony and or not show up for a trial and be out of town or not be available during trial."2
/
RP at 322. Gies also testified that it was " vident"that Tek's letters were an attempt to influence
e
Andrea's testimony, or deter her from_
trial.
attending_ Counsel did not object to either statement.
2RPat356.
The State introduced recordings of Andrea's custodial visits to Tek through detective
Brenda Anderson. Anderson testified that she "believe[d]
there was evidence" before counsel
objected, and the trial judge sustained the objection. 3 RP at 474. The prosecutor then rephrased
her question to ask what Anderson was looking for when she listened to the recordings;
Anderson responded "[
e] without objection. Id. The prosecutor also asked Anderson
vidence,"
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why she booked Tek for witness tampering, to which she testified that there was "evidence to
suggest that he was trying to change [Andrea's]
story."3 RP at 481. When the prosecutor asked
if there was anything in the recordings "that led [Anderson] to believe that those charges were
warranted,"
counsel objected, but was overruled by the court. Id. Anderson then began, To me,
"
it indicated that there was — ", before counsel objected, which was sustained by the trial judge.
there was clear evidence to [ her] there
Anderson then testified that " was tampering "; counsel
objected, and the trial judge sustained the objection and struck the testimony. 3 RP at 482.
The jury convicted Tek of all charges, answering yes to each special verdict question
whether Tek and Andrea were members of the same family or household). On the assault in the
second degree conviction, Tek was sentenced to 15 to 20 months plus an enhancement of 36
months, based on an offender score of 4 and a seriousness level of IV. On the witness tampering
charges, Tek was sentenced to 9 to 12 months, based on an offender score of 3 and a seriousness
level of III. On the assault in the first degree, Tek was sentenced to 129 to 171 months with an
enhancement of 24 months, based on an offender score of 4 and a seriousness level of XII. On
the 36 charges of violation of a no-contact order, Tek was sentenced to 0 365 days. Tek timely
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appealed his convictions. -___ _ -_ -_ -- - - -_ -_ --
ANALYSIS
I. Sufficient Evidence
To determine whether sufficient evidence exists to sustain a conviction, we determine
whether, viewing all evidence in the light most favorable to the prosecution, any rational finder
of fact could have found the essential elements of the crime beyond a reasonable doubt. State u
Engel, 166 Wn. d 572, 576, 210 P. d 1007 (2009)citing State a Wentz, 149 Wn. d 342, 347, 68
2 3 ( 2
3 Violation of a no-
contact order is a gross misdemeanor and is not considered under the
Sentencing Reform Act of 1981, chapter 9. RCW.
94A
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No. 42227 1 II Cons. With
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P. d 282 (2003)).
3 Although Tek asserts that insufficient evidence violates his due process rights
and should be reviewed de novo, sufficiency of the evidence is nonetheless reviewed by the
deferential rational- offact standard. In re Pers. Restraint ofMartinez, 171 Wn. d 354, 364,
trier - - 2
256 P. d 277 (2011).To do so, the court will first examine the contested elements of the crime,
3
followed by an examination of the evidence used to sustain that crime taken in a light most
favorable to the prosecution.
Assault in the first degree requires that the defendant assault another person with a deadly
weapon or with any force or means likely to produce great bodily harm and that the defendant
intends to inflict great bodily harm. RCW 9A. 6. Tek contests whether sufficient evidence
011.
3
exists to suggest that he "intend[ed]to inflict great bodily harm:"See id. Intent may be inferred
from the defendant's conduct. See State a Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980).
2 2
For example, in an assault case, evidence of intent includes the manner and act of inflicting the
wound, the nature of the prior relationship, and any previous threats. See State a Mitchell, 65
Wn. d 373, 374, 397 P. d 417 ( 1964).
2 2 Similarly, applying a predecessor statute of RCW
11,
9A. 6. Division One of the Court of Appeals held that testimony of a prior altercation,
3
testimony of the defendant shooting through an open window without provocation, and physical
evidence that the shot would have hit the victim's head if he had not ducked constituted
sufficient evidence to find intent to kill. State a Woo Won Choi, 55 Wn.App. 895, 906, 781 P. d
2
505 (1989),
superseded on other grounds as recognized in State a Anderson, 72 Wn. App. 453,
458 59,864 P. d 1001 (1994).
- 2
In the present case, evidence demonstrates Tek's intent in four ways. First, there was
4
Since the events of Woo Won Choi, 55 Wn. App. 895, the legislature has changed the intent
requirement for assault in the first degree from intent to kill to intent to cause great bodily harm.
LAWS of 1986, ch. 257, §9.
7
No. 42227-141 (Cons. With
No. 422379 II and No.42247 6 II)
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evidence of a prior altercation where Tek pointed a gun at Andrea. Second, there was no
evidence to suggest that Andrea did anything to provoke Tek into attacking. Third, intent is
demonstrated by Tek's affirmative conduct when ( a) he said he would "show" Andrea,
suggesting an impending violent act and (b)because Tek had to walk to the closet, retrieve the
knife from beneath some clothes, walk back to Andrea, and unsheathe the knife before he could.
attack Andrea, suggesting that his actions were not done on impulse. 3 RP at 533 34. And
-
fourth,testimony from Officer Jordan suggested that Andrea's injury was a defensive wound.
Taking these facts in a light most favorable to the prosecution, a rational finder of fact
would be justified in finding beyond a reasonable doubt that Tek intended to cause Andrea great
bodily harm.
II. Judicial Comment
Washington Constitution article IV, section 16, forbids the trial judge from conveying to
the jury any personal opinion regarding the credibility, weight, or sufficiency of evidence. A
judge's opinion may be conveyed directly or by implication, based on the particular facts and
circumstances of the case. State v Jacobsen, 78 Wn. d 491, 495, 477 P. d 1 ( 1970). Any
2 2
remark by the court that has the potential effect of suggesting that the jury need not consider an
element of an offense could qualify as a judicial comment on the evidence. State v Hartzell, 156
Wn.App. 918, 936 37,237 P. d 928 (2010).Here, the judge did not improperly comment on the
- 3
evidence, and any statement did not prejudice the defendant.
The judge's statements were not improper because they did. not go to the credibility,
weight, sufficiency, or materiality of a piece of evidence. Gruesome photographs, like other
evidence, are admissible if their probative value outweighs their prejudicial effect. State V.
Hoffman, 116 Wn.2d 51, 88, 804 P. d 577 (1991);
2 State v Harris, 106 Wn.2d 784, 791, 725 P. d
2
975 (1986).The trial judge's statement to the jury that photographs of the victim's injury were
N.
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somewhat graphic"and that the jurors " ay want to look at it quickly or not at all"did not rise
m
to the level of an impermissible comment. This did not indicate that the photo was more or less
important or probative, rather only that it was potentially disturbing to observe. Whether the
injury was disturbing when looking at photos was not an issue at trial. It is tenuous to suggest
that from the judge's statement the jury could.infer that Tek acted with intent to cause great
bodily harm. It is more likely that the judge like most peoplewas cautious of others'
— —
sensitivity to blood and exposed tissue.
Furthermore, the judge's statements did not prejudice the defendant. When the court
determines that the trial judge commented on the evidence, then prejudice is presumed. Levy,
156 Wn. d at 723. However, that presumption is defeated if overwhelming untainted evidence"
2 "
supports the conviction. State a Lane, 125 Wn. d 825, 840, 889 P. d .929 (1995). Here, the
2 2
untainted evidence supporting a finding of intent to cause great bodily harm is enough to
preclude the possibility that the trial judge's statement influenced the jury. Andrea testified about
the treatment and therapy that she needed after the attack, the permanent scarring she suffered,
and commented that the "whole top portion [of her arm] was just kind of open...." at 538.
3 RP
Emergency_ ersonnel corroborated her testimony: Firefighter and emergency medical technician
p
EMT) Brandon Sivonen, Dr. Skinner, and Tiffany Grauman, an emergency room nurse, all
testified to the nature of the wound. Without ever seeing State's exhibit 27, the jury could have
determined that Andrea's injury was too severe to have been inflicted without intent to cause
great bodily harm. Even if the judge improperly commented on the State's exhibit 27, Tek was
not prejudiced.
III. Opinion Testimony
According to ER 701, a nonexpert witness may only testify to opinions that are rationally
based on that witness's factual perceptions. Although Tek admits that counsel failed to object to
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the statements at trial, he asserts a right to raise them for the first time on appeal if he can
demonstrate that these questions are manifest" constitutional
of " magnitude. RAP 2. (
a)(
3).
5
RAP 2. ( a " narrow" exception that requires a showing of "actual prejudice" or
a)( is
3)
5
ac'ractical
p and identifiable consequences. State v Kirkman, 159 Wn. d 918, 934 35, 155 P. d
2 - 3
125 (2007) quoting State a WWJ Corp.,138 Wn. d 595, 603, 980 P. d 1257 (1999) internal
( 2 2 (
quotation marks omitted)). that reason, we require that the challenged statement be "explicit
For
or almost explicit"on an ultimate issue of fact. Id. at 936.
A. Opinion Testimony on Assault in the First Degree
Detective Gies testified that Tek's original charge of assault in the second degree was
upgraded to assault in the first degree based on the severity of the injury, which the detective
became aware of during the investigation. He did so in rebuttal to defense counsel's questioning
about the arresting officer's choice of booking charge. It was not improper opinion testimony for
detective Gies to explain why he charged Tek with the crime being tried. See State v. Sutherby,
138 Wn.App. 609, 617, 158 P. d 91 (2007), d in part and reversed in part, 165 Wn. d 870,
3 aff' 2
204 P. d 916 (2009) ( " some instances, a witness who testifies to his belief that the defendant
3 In
is guilty.is merely_
_ stating the obvious, such as when a police officer testifies that he arrested the
defendant because he had probable cause to believe he committed the offense. "). Detective
Gies's testimony demonstrated that he had probable cause sufficient to book Tek for assault in
the first degree. This is a fact necessarily implied by the fact that Tek is being tried for that
crime. As such, Detective Gies's testimony told the jury nothing they did not already know from
5
Tek argues, relying on King,that an explicit or nearly explicit opinion on an ultimate issue
mandates reversal. State v. King, 167 Wn. d 324,219 P. d 642 (2009).This is not the holding
2 3
of King,which held that such an opinion " an"constitute manifest error. Id. at 329 30. That is,
c -
just because the challenged testimony is explicit does not relieve the defendant of the burden to
prove prejudice.
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their mere presence in the courtroom. Detective Gies did not improperly testify and his
statements do not show prejudice or explicitly raise an issue of fact.
B. Opinion Testimony on Witness Tampering
Detective Gies also testified that it was "evident" that Tek called Andrea to have her
change her testimony or discourage her from attending trial and that the letters contained an
attempt to influence Andrea's testimony or discourage her from showing up. 2 RP at 322, 356.
Detective Anderson then went on to explain to the court that in recordings of Tek's custodial
visits, she looked for "evidence to suggest tampering with the witness" and that "there was
evidence to suggest that [Tek] was trying to change her story."3 RP at 474, 481. However, her
testimony that "here was clear evidence to [her] there was tampering"was struck upon objection
t
by counsel. 3 RP at 482.
Opinion testimony does not invade the province of the jury if the jurors are in a position
to independently assess the foundational evidence backing that opinion. City of Seattle v
Heatley, 70 Wn. App. 573, 581, 854 P. d 658 (1993). For
2 example, in Heatley, an officer's
testimony that "[
he]determined that Mr. Heatley was obviously intoxicated" was not improper
because it was "` directly and logically "' supported by his observations that the defendant's eyes
were bloodshot and watery, his face was flushed, his balance was unsteady, he had a strong odor
of alcohol, and he swayed significantly during the administration of field sobriety tests. Id. at
576 79 ( uoting State v Allen, 50 Wn.App. 412, 417 n. ,749 P. d 702 (1988)).
- q 1 2
As in Heatley, the detectives' statements are directly and logically supported by their
observations as well as by Tek's recorded statements presented to the jury. The jurors heard the
same recordings and read the same letters that Gies and Anderson relied on and were in a
position to independently assess the foundational evidence backing the detectives' opinions. In
letters, Tek asked Andrea to "ignore all those lying ass prosecutors,"and wrote "[ lease don't
p]
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testify against me like the DA wants you to." RP at 35. , 359.
2 7 In phone calls, Tek asked
Andrea to "[ ust disappear" and not to show up in March. 2 RP at 326. He told her that she
j]
didn't have to testify against him. He said she "should have kept [her] mouth shut"and wished
she "would just stop saying anything, man."2 RP at 335, 339. He asked her not to work with
that other person, the devil, you know who, ... trying to screw me over."2 RP at 337. He told
her not to show up at his trial, reminding her, n] face, no
"[ o case." 2 RP at 352. During a
custodial visit, he asked her to say that "the whole thing [referring to Tek brandishing the gun
during the May 28 incident] was being depressed" and that he had not threatened her. 3 RP at
472. He asked her to tell the police there had been no domestic dispute and to "convince the
judge" that the couple never got in a fight. 3 RP at 472 73. Tek's recorded communications
-
speak for themselves; in several instances, he explicitly told Andrea not to come to trial or
explicitly coached her on what to testify. The detectives said nothing that the jury could not have
deduced for itself upon hearing Tek's own words. Therefore, the testimony was not improper.
IV. Double Jeopardy
Tek alleges that being charged with 2 counts of witness tampering and 36 counts of a no-
contact order violation, impinged on his right to be free from double jeopardy. WASH. CONST.
art. I, § UNITED STATES CONST. amends. 5, 14. A double jeopardy analysis necessarily
9;
depends on unit of
what "` prosecution "' the legislature intended as the punishable act under the
statute. State v Westling, 145 Wn. d 607, 610, 40 P. d 669 (2002)quoting In re Pers. Restraint
2 3 (
of Davis, 142 Wn.2d 165, 12 P. d 603 (2000)).
3 First, witness tampering. at the time of Tek's
conduct was controlled by State v Hall, which treats a unit of prosecution more broadly than the
statute's current definition. State v Hall, 168 Wn. d 726, 230 R. d 1048 (2010)the court held
2 (
that Hall committed one crime of witness tampering);see RCW 9A. 2.9A. 2.a " nit
110,
7 120 (u
7
of prosecution" for witness tampering is "each instance" of tampering). Second, an individual
12
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violation of a no-
contact order, statutorily and under case law, constitutes as a single "unit of
prosecution." See RCW 26. 0.State a Brown, 159 Wn. App. 1, 10, 248 P. d 518 (2010)
110;
5 3
the trial court held that multiple violations of a no-
contact order resulted in five violations
because they were separate contacts occurring on separate days).
A. Witness Tampering
In Hall, the defendant was jailed pending trial for a first degree burglary and second
degree assault conviction. 168 Wn. d at 729. In jail, he attempted to call his girlfriend over
2
1, times, and attempted
200 to persuade her not to testify or to testify falsely. Id. Hall was
charged with four counts of witness tampering, based on calls placed on March 22, March 30,
and April 4. Id. He was convicted of three counts and appealed to the Supreme Court, which
held that the unit of prosecution was an entire "course of conduct."Id. at 731. In other words,
the statute was meant to criminalize the attempt to "induce a witness,"and the number of
specific acts undertaken to further that criminal goal was irrelevant. Id.However, Hall by its own terms did not reach those situations where
"
additional attempts to induce are interrupted by a substantial period of time,
employ new and different methods of communications, involve intermediaries, or
other facts that may demonstrate a different course of conduct.
Id. at 737 38. This is just such a case. Nearly a year passed between the custodial visit that gave
-
rise to the first tampering charge and the "course of conduct"of letters and phone calls that gave
rise to the second tampering charge. 1 RP at 26. Furthermore, Tek committed a new crime.the
(
first degree assault) between the first and the second tampering. Tek had ample time and reason
to form a new criminal intent for the second witness tampering. For that reason, two counts of
witness tampering were proper.
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B. Violation ofNo-
Contact Order
Unlike witness tampering, the statute governing no-
contact orders is not governed by
Hall. The court in Hall stated that the result might be different if the statute specified "an
attempt" or "
any attempt." 168 Wn. d at.33. This is exactly the case here, where the statute
2 7
criminalizes "a violation" of contact
a no- order. RCW 26. 0. Here, the
110.
5 State elected to
charge 36 counts of violation of a no-
contact order. Tek argues that he should have been charged
with only 12, because many of the calls were merely continuations of the same conversation after
being automatically cut off by the jail phone system.
Division One of the Court of Appeals has held that the unit of prosecution for violation of
a no-
contact order, RCW 26. 0.is " violation,"
110, a
5 meaning one. State a Brown, 159 Wn.App.
1, 10, 248 P. d 518 (2010). Division One correctly rioted, the Supreme Court held in State v
3 As
Ose, 156 Wn. d 140, 147, 124 P. d 635 (2005), the use of the word "a" criminal statutes
2 3 that in
usually indicates authorization of punishment for each individual instance of criminal conduct.
RCW 26. 0.10 criminalizes " violation"of a no-
5 1 a contact order, meaning an act in contravention
of that order. An offense is consummated when the defendant does something to contact the
subject of the or4er,_ when a conversation is actually initiated_
not State v. Allen, 150
Wn. App. 300, 313 14, 207 P. d 483 (2009) holding that RCW 26. 0.was violated twice
- 3 ( 110
5
when the defendant sent two e mails to the subject of a no-
- contact order, even if she read both e-
mails at the same time). In other words, the victim's state of mind is irrelevant; the statute is
6
State v. Brown also conducts a separate, further analysis of whether evidence of multiple
offenses constitutes a " ontinuous course of conduct"for the purposes of addressing a jury
c
unanimity requirement. Brown, 159 Wn.App. at 13 15 ( olding that the defendant's actions
- h
constituted a continuous course of conduct and thus the trial court did not err in failing to require
a jury unanimity instruction when the prosecution charged five violations of a no-
contact order
and there was evidence of,at a minimum, 37 acts).Tek does not argue that his actions constitute
a continuous course of conduct,but only challenges them under a unit of prosecution analysis.
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keyed purely to an action undertaken by the defendant. Where Tek and Andrea understood one
conversation to stop and another to begin is no more relevant than when the victim in Allen read
the e-
mails.
A faithful application of Allen requires us to hold that a lengthy message broken up into
several messages by the carrier constitutes separate violations of RCW 26. 0. Tek had to
110.
5
make the affirmative act of picking up the phone and dialing anew each time he was dropped by
the jail carrier. In each of the 36 instances in which he was charged with violating the no-
contact
order, he made an affirmative act to get in contact with Andrea —precisely the conduct targeted
by RCW 26. 0. The 36 counts of violation of a no-
110.
5 contact order did not violate double
jeopardy protections.
V. Ineffective Assistance of Counsel
We employ a two part test for determining whether a defendant has received ineffective
-
assistance of counsel. Strickland a Washington, 466 U. . 668, 689, 104 S. Ct. 2052, 80 L. Ed.
S
2d 674 (1984);
State a McFarland, 127 Wn. d 322, 334 35,899 P. d 1251 (1995).
2 - 2
First, counsel's performance must have been deficient, meaning that, after examining the
entire record below, counsel's competency must have fallen below an objective standard of
reasonableness based on all the circumstances. State a White, 81 Wn. d 223,225, 500 P. d 1242
2 2
1972). We presume counsel was effective, and require the defendant to show there was no
legitimate strategic or tactical reason for the challenged conduct. McFarland, 127 Wn. d at 336.
2
7
In addition, as misdemeanors, the counts of violation of a no-
contact order were not counted
into Tek's offender score under the Sentencing Reform Act. Whether he was charged with 36
counts, 12 counts, or 0 counts of violation of a no-
contact order would have made no difference
to his sentence.
15
No. 42227 1 II Cons. With
- - (
No. 42237 9 II and No. 42247 6 II)
- - - -
Second, counsel's deficient performance must have prejudiced the defendant. Strickland, 466
U. .at 687.
S
Tek's counsel was not deficient in not objecting to the putative opinion testimony of
detectives Grier and Anderson because there are legitimate tactical reasons not to object too
frequently, such as the risk of antagonizing the jury or drawing too much attention to the content
of the letters, recordings, and calls themselves. Viewing the record as a whole, counsel was alert
and objected where appropriate, such as his timely objection to Detective Anderson's testimony
that "there was clear evidence to [her] there was tampering," counsel's successful exclusion
and
in voir dire) of Officer Jordan's testimony that Andrea's wound probably resulted from a
purposeful attack aimed at the neck area. There is no indication that counsel was anything less
than diligent and competent in managing Tek's trial as a whole.
Even if counsel was deficient in not excluding the putative opinion testimony of Grier
and Anderson, this testimony was not outcome -determinative. As discussed supra, because Tek's
recorded communications spoke for themselves, whether their testimony was admitted or not
would have made no difference in the outcome of the case. Tek did not demonstrate prejudice
and is not entitled to relief based on ineffective assistance of counsel.
CONCLUSION
We affirm Tek's conviction. Sufficient evidence exists to affirm Tek's conviction of
assault in the first degree; the judge's statement . on the evidence, does not constitute an
impermissible comment on the evidence; the nonexpert's statements are not impermissible
opinion; Tek's convictions of several counts of witness tampering and violations of a no-
contact
order do not constitute double jeopardy; and Tek did not receive ineffective assistance of
16
No. 42227-
11- 1
Cons. With No. 42237 9 II and No. 42247 6 II)
- - - -
counsel.
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 in accordance with RCW
040,
2.6.it is so ordered.
0
rN
WIGGIN , J. .
T.
P
We concur:
I
JJ HANSON,A. .
J J.
C
J 1
4 JP r
BRIDGEWAT R,J. .
T.
P
17