State of Washington v. Robert John Duke Collins (Majority and Order)

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FI ED AUGUS 23, 2016 In the Office oft e Clerk of Court WA State Court of ppeals, Division III i r COURT OF APPEALS, DIVISION III, STATE OF WASHI GTON STATE OF WASHINGTON, Respondent, V. R.C.,t Appellant. ) ) ) ) ) ) ) ) ) No. 32956-9-111 I ORDER DENYING M TION FOR RECONSIDERA ION AND AMENDING OPI ION THE COURT has considered Appellant's motion for reconsideration a d is of the opinion the motion should be denied. Therefore, IT IS ORDERED, the motion for reconsideration of this court's decisio of July 26, 2016, is hereby denied. IT IS FURTHER ORDERED the opinion filed July 26, 2016, is amend d as follows: The last sentence of the first full paragraph on page 9 that reads: t For purposes of this order, the juvenile's initials are used in place of rs name. I I The problem with this circular argument is that when we revie seven factors to determine whether, because a child has sufficient capacity to understand the act and know that it was wrong, the presumption does not apply. the shall be amended to read: The problem with this circular argument is that we review the s ven factors to determine whether, because a child has sufficient capacity understand the act and know that it was wrong, the presumption has overcome. PANEL: Judges Fearing, Siddoway, Lawrence-Berrey FOR THE COURT: GEORGE B. FEARING, Chief J dge I 2 FI ED JULY 6,2016 In the Office oft e Clerk of Court WA State Court of ppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGT N DIVISION THREE STATE OF WASHINGTON, Respondent, ) ) ) ) ) ) ) V. R.C.,t Appellant. SIDDOWAY, J. - No. 32956-9-III UNPUBLISHED OP ION ) ) R.C. appeals his adjudication of three counts of assau t, committed when he was 10 years old, challenging the trial court's finding of c pacity and arguing that his lawyer's failure to assert self-defense constituted ineffective sistance of counsel. Because the trial court's finding of capacity was supported by subst tial evidence and his lawyer's representation was not deficient, we affirm. FACTS AND PROCEDURAL BACKGROUND R.C. was charged with one count of second degree assault and two co ts of fourth degree assaults committed in September 2014. At the time of the assau ts, R.C. was 10 years and 7 months old. The victim of the second degree assault was .C.'s aunt. t For purposes of this opinion, the juvenile's initials are used in place o his name. No. 32956-9-III State v. R. C. The victims of the fourth degree assaults were his mother and his great-aunt. Since children R.C.'s age are presumed to lack the capacity to commit a rime, the first order of business in R.C.'s case was a capacity hearing. The presumption t at a 10year-old child is incapable of committing a crime may be removed by "proof th t they have sufficient capacity to understand the act [charged] ... and to know that it as wrong." RCW 9A.04.050. The only witness called at R.C. 's capacity hearing was Steven Driscoll, juvenile probation officer whose job duties include investigating and opining on the cap city of children under the age of 12 who are charged with crimes in Yakima County. Driscoll learned from R.C.'s mother that he had engaged in physical fights wit age 5 or 6, which she and Mr. Driscoll attributed to R.C.' s history with his very abusive father. Before 2014, R.C.'s mother had called Yakima police ''two or three tim s" when R.C. assaulted her. Report of Proceedings (RP) at 28. No formal action was ta en in those instances, although the officers talked to R.C. about how his behavior co ld lead to legal issues and jail. In 2014, R.C.'s mother moved with him to Montana, hoping that getting him away from his father might give R.C. a fresh start. But R.C. assaulted her twice duri g the several months they lived in Montana before returning to Yakima. Mr. Driscoll spoke with the probation officer assigned to oversee R.C. in Montana. She told Mr. riscoll that given R.C.'s age, he had been granted diversion in both cases but had face a definite 2 No. 32956-9-III State v. R. C. prospect of being sent to a juvenile detention facility on the second occasion, a d "he was definitely afraid of it." RP at 25. Mr. Driscoll learned from R.C.'s mother that he had been diagnosed wit posttraumatic stress disorder and oppositional defiant disorder, 1 and was being treat d for the disorders with Prozac and counseling. R.C. was also taking melatonin to help im sleep. From Mr. Driscoll's testimony, his report, and the police reports admitte into evidence, the court found that R.C. had the capacity to understand the acts char ed and that they were wrong. The court relied both on aspects of the assaults revealed in the police reports and on R.C.'s history with law enforcement in Yakima and Mon na. The court noted that because R.C. "understands what he is doing is wrong" he "mig t be a kid that could really benefit from some services" available in the juvenile justice s stem. RP at 40-41. At the adjudication hearing that took place thereafter, the State called th two 1 Oppositional Defiant Disorder is a recurrent pattern of negativistic, defiant, disobedient, and hostile behavior toward authority figures that persists for at least 6 months ... and is characterized by the frequent occurrence of at least four of the following behaviors: losing temper ... , arguing with adults ... , actively defying or refusing to comply with the requests or rules of adults ... , deliberately doing things that will annoy other people ... , blaming others for his or her own mistakes or misbehavior ... , being touchy or easily annoyed by others ... , being angry and resentful ... , or being spiteful or vindictive .... AM. PSYCHIATRIC Ass'N, DIAGNOSTIC & STATISTICAL MANUAL OF MENTAL ISORDERS § 313.81, at 100 (4th rev. ed. 2000). 3 No. 32956-9-III State v. R. C. police officers who responded to the September assaults and the three victims. he evidence established that the initial event precipitating R.C.' s assaults was his telling him to give her a television remote that he had taken in order to change t e channel from the cartoons his three-year-old sister was watching. When his gre t-aunt reached for the remote, R.C. punched her in her right arm, which was in a sling following surgery. He then raised his legs and kicked her in the stomach as if to push her away. After suffering the assault, R.C.'s great-aunt told his mother, "[H]e's all ours," and went outside, crying. RP at 86. R.C.'s mother told him it was wrong to hit others, that he needed to respect his elders, and that he was grounded from watching te evision and could not have the remote. R.C. then punched his mother in the stomach. he ordered R.C. to take a time-out and went outside where she sat down with hers ster, who was commiserating with R.C. 's great-aunt. R.C. went to a comer of the yard w ere he goes to calm down. I I After 5 or 10 minutes, R.C. approached his mother, great-aunt and aunt, I I apologized for being "mouthy," and hugged his mother and great-aunt. RP at 1121. But in the conversation that ensued, R.C.'s mother told him he needed to do his hof ework and his chores, and he again became angry. When his aunt weighed in, telling ~im he needed to do as he was told, R.C. told her and his mother that he "wasn't goinglto f king do anything," at which point his aunt pulled the bucket on which he was sjtting out from under him, causing him to fall on the ground, and told him, "[Y]ou get off your ass, i ! 4 No. 32956-9-III State v. R. C. you get in the house, and you do your chores." RP at 123. R.C. went into the house, but instead of undertaking chores or homewor~, he went into his mother's room, where his mother feared he was going to destroy things His aunt was also afraid that R.C. "was going to do something stupid," so she went insid and told R.C., who was sitting on his mother's bed, that he needed to go outside. Ex. B When he refused, persistently, the two argued, and his aunt went outside to tell 1s mother he would not listen. A few minutes later, R.C.'s aunt tried again to get him to obey. doorway of her sister's room and told R.C. to go outside as he was told. She a d R.C. yelled and swore at one another, with R.C. saying, at one point, "the next perso that touches me or says anything to me is ... going to get their ass beat or get kille ." RP at 127. When R.C.'s aunt finally entered the room and reached for his arm to pul him off the bed, R.C. reached behind his back, where he had a small paring knife, grab at 131. raised it over his head-according to his aunt, "like he was coming at [her]." She fled the room and called police. She testified that she feared he was going to stab her; that "Ifl had not moved, I probably would have gotten it right in the side.' RP at 133. At the conclusion of the evidence, the trial court announced it found the evidence "very credible on all three counts." RP at 168. While observing that it is "av sad case," it found R.C. guilty as charged. Id. On the two counts of fourth degree ~ssault, it i 5 No. 32956-9-III State v. R. C. committed him to a total of 36 days of detention-the time he had already serv d. It committed him to the custody of the Juvenile Rehabilitation Administration for ! institutional placement for 15 to 36 weeks on the second degree assault, stating 'that's appropriate to give him the longest shot he could get there to get the kind of hel that he needs." RP at 179. R.C. appeals. ANALYSIS R.C. argues on appeal that the State failed to overcome the presumption hat he was incapable of committing a crime. He also argues his trial lawyer provided ineffective assistance of counsel by not asserting self-defense. We address his contentions in turn. I. Capacity RCW 9A.04.050 provides that children under the age of eight years are ·ncapable of committing a crime and, relevant here, that r [c]hildren of eight and under twelve years of age are presumed to be incapable of committing crime, but this presumption may be removed bf proof that they have sufficient capacity to understand the act [charged] ... and to know that it was wrong. , I ! "The purpose of the presumption is to protect from the criminal justice system hose individuals of tender years who are less capable than adults of appreciating the wrongfulness of their behavior." State v. Q.D., 102 Wn.2d 19, 23, 685 P.2d 557 (1984). 6 No. 32956-9-III State v. R. C. I I The State must overcome the presumption of an 8 to 12 year old' s lack o~ capacity with clear and convincing evidence. State v. JP.S., 135 Wn.2d 34, 37,954 P.2 894 (1998). Clear and convincing evidence exists when the evidence shows the ulti ate fact at issue to be highly probable. In re Dependency of K.S.C., 137 Wn.2d 918, 92 , 976 P.2d 113 (1999). "A capacity determination must be made in reference to the specific act harged." JP.S., 135 Wn.2d at 37. To have capacity, the child must know the act charge was wrong at the time he committed it. Id. at 37-38. "A 'sense of moral guilt alone in the absence of knowledge oflegal responsibility, is not sufficient,' although actual [ I knowledge of the legal consequences is not necessary." State v. Ramer, 151 Wh.2d 106, I 115, 86 P.3d 132 (2004) (quoting 43 C.J.S. Infants§ 197 (1978)). Courts consirer seven factors to determine whether a child knew the act charged was wrong: I I I (1) the nature of the crime; (2) the child's age and maturity; (3) whether ~he child showed a desire for secrecy; (4) whether the child admonished the 1· victim not to tell; ( 5) prior conduct similar to that charged; (6) any , consequences that attached to the conduct; and (7) acknowledgment thatll the behavior was wrong and could lead to detention. JP.S., 135 Wn.2d at 38-39. I Where, as here, the trial court finds a child has capacity to commit a cri e, we review the record to determine whether substantial clear and convincing evide ce was presented from which the trial court could reasonably find that the statutory pr sumption was overcome. Ramer, 151 Wn.2d at 112-13. "Substantial evidence exists whfre there is I 7 No. 32956-9-III State v. R. C. a sufficient quantity of evidence in the record to persuade a fair-minded, rationat person of the truth of the finding" at issue. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We track the seven factors in our review. Nature of the crime. The nature of the crime is relevant to determining the child's ability to understand that the conduct was wrong. "The more intuitively obvious the wrongfulness of the conduct, the more likely it is that a child is aware that some, form of societal consequences will attach to the act." State v. Linares, 75 Wn. App. 404, 414-15 n.12, 880 P.2d 550 (1994). Courts recognize that children are less likely to understand the wrongfulness of a crime that is sexual in nature because "young children have little, if any, instruction regarding prohibitions on sexual conduct." JP.S., 135 Wn.2d at 43. By contrast, because most children "are taught very young not to steal or set fires oir injure other people," they are more likely to understand that those actions are wrong. Id. The crimes charged in this case are assaults, the wrongfulness of which is intuitively obvious. Children are almost always taught from a very young age that hitting someone is wrong. The same is true of threatening to injure someone with a weapon. This factor weighs in favor of finding capacity. Age and maturity. R.C. committed the assaults when he was 10 years and 7 months old. R.C. and amici argue that R.C.'s past history of abuse and mental health disorders show that he is not as mature as an average 10-year-old child, but there is no 8 No. 32956-9-III State v. R. C. evidence to that effect in the record. Cf State v. JF., 87 Wn. App. 787, 792, 943 P.2d 303 (1997) (notwithstanding mother's testimony that child's attention deficit di$order caused him to act impulsively, court found it to have no bearing absent evidenc¢ that the disorder caused him to function at a lower cognitive level). It sometimes is contended that childhood adversity ages a child beyond his years. Alternatively, R.C. argues the court found his maturity was "right on foria 10 year old," RP at 46; RCW 9A.04.050 presumes that a 10-year-old child lacks capacity; ergo, he lacks capacity. The problem with this circular argument is that when we review the seven factors to determine whether, because a child has sufficient capacity to u111derstand the act and know that it was wrong, the presumption does not apply. Properly analyzed, the "age and maturity" factor recognizes, in part, that the closer a child is to being 12 years old, the more likely he has the capacity to understand the wrongfulness of his actions. See Q.D., 102 Wn.2d at 27 ("the defendant was le~s than 3 months from the age at which capacity is presumed to exist"); Linares, 75 Wn. App. at 415-16 (capacity was supported by the fact that child was "11 years old at the time of the incident, the upper end of the age range in which a child is presumed incapable! of committing a crime); State v. K.R.L., 67 Wn. App. 721, 726, 840 P.2d 210 (1992) ("Here, we have a child of very tender years-only two months over 8 years."). Yet ifia child's maturity is demonstrably lower than that of most children his age, even a child nearing 12 years of age may be found to lack capacity. See JP.S., 135 Wn.2d at 39 (11-year-old 9 No. 32956-9-III State v. R. C. child was developmentally disabled, "tested at the level of a first grader[,] and had limited cognitive skills"). No evidence was presented that R.C. is intellectually or developmentally disabled. In fact, Mr. Driscoll's report included R.C.'s mother's report that "[R.C.] received all A's and B's for grades." Ex. A at 1. The fact that R.C. was in the upper end of the 8 to 12 age range, had good grades, the fact that he was self-aware enough to attempt to calm himself down, and th~ absence of any evidence that he lacked the cognitive ability to understand what an avera(ge 10year-and-7-month-old child understands, all bear on this factor. While not strong support for a finding of capacity, this factor weighs in favor of finding capacity. Desire for secrecy. A child's desire to keep his actions secret suggests he knows the act charged was wrong, supporting a finding of capacity. Q.D., 102 Wn.2d :at 27; J.P.S., 135 Wn.2d at 43. Lying about what happened evidences a desire for secrecy. Linares, 75 Wn. App. at 417. R.C. points out that he remained in his mother's room and complied wh¢n asked to come out and speak with police. He argues that no evidence was offered that he desired ' secrecy. But evidence offered at the capacity hearing suggests that when he sppke with police officers, he was both inconsistent and dishonest. He told one officer that he never hit his great-aunt, rather, she hit him; that he merely pushed his foot against his mother's stomach; and that he only walked toward his aunt with a mechanical pencil in his hand. 10 No. 32956-9-III State v. R. C. He told another officer that he did hit his great-aunt; that she would probably bruise, given her thin skin; but that he did it in self-defense after she slapped him in the face. Mr. Driscoll's capacity report notes that on earlier occasions when R.C. assaulted his mother, he asked her not to call police out of fear he would be taken to jail. R.C. 's history of asking his mother not to call police, together with evidence that when police were called in September 2014, he lied, demonstrate a desire for secrecy and a corresponding knowledge that his acts were wrong. The factor weighs in favor of finding capacity. Asking the victim not to tell. A child's request that the victim not tell about the act charged shows the child understands his actions were wrong. See Q.D., 102 Wn.2d at 27. The State argues that R.C. did not want the police to be called following the September 2014 assaults, but it does not cite to support in the record. We find no evidence that R.C. asked family members not to call police on that occasion, but given the precipitous events, he might not have had the opportunity. We have already mentioned prior occasions on which R.C. asked his mother not to call police and will not double count that evidence under this factor. This factor does not weigh in favor, or against, finding capacity. Prior conduct & consequences (factors 5 and 6 combined). Evidence t~at the child has engaged in prior similar conduct and suffered consequences indicates the child knew the conduct was wrong, and supports a finding of capacity. See Q.D., 102 Wn.2d at 11 No. 32956-9-III State v. R. C. 26-27. . I Mr. Driscoll cited prior experience and consequences as the principal rea~ons for i concluding that R.C. had the capacity to understand the acts charged and that thfY were wrong. The court, too, treated these factors as significant. I! Mr. Driscoll's report summarizes R.C.'s prior conduct and consequences!as of September 2014: [R_.C.] has a long history of assaulting his mother, since she took custody[ of him when he was 8 years old. His mother has stated the police have conie to the house at least 3 times due to him beating her up, and that the offic~rs would sit him down and talk to him about his behavior and how it could : lead to legal issues and/or jail. The mother reported [R.C.] would alway$ eventually state he was sorry and say he didn't want to do it and would make sure it wouldn't happen again. I ! 1 ... While in Montana, [R.C.] assaulted his mother twice, with the first tit:1e resulting in law enforcement involvement. [R.C.] was cited for the assa~lt and entered into a Diversion-type program with Jefferson County Probat~on · services of Montana. After the second assault, [R.C.]'s Diversion Supervision was extended, and he narrowly avoided Pine Hills Correctitjnal Institute according to his Probation Officer in Montana. 1 i i Both [R.C.]'s mother and his Probation Officer from Montana have stat~d that [R.C.] is well aware of the difference between right and wrong, andtas an even better grasp of the potential consequences of assaultive behavio . His mother has stated that [R.C.] said he was, "scared shitless" of going Ito jail in Montana after his second assault occurred. Ex. A at 3. In addressing these factors, R.C. cites his mother's opinion that when hel hits I i family members, it is self-protective because he cannot distinguish between abise and 12 No. 32956-9-III State v. R. C. discipline. Br. of Appellant at 20-21. But this evidence (which was in the context of hitting in response to physical punishment) was only presented at the trial, not at the capacity hearing. He and amici also contend the evidence of his prior similar conduct and consequences was not specific enough to be clear and convincing evidence. W ¢ disagree. The court was presented with evidence that by the time of the capacity hearing, 1 R.C. had dealt with law enforcement for assaulting his mother on at least five occasions; that while living in Montana, he suffered the consequence of diversion with county probatton services; and that multiple police officers had told him his behavior was wrong and could lead to legal issues or jail. The court was presented with evidence that R.C. was receiving regular counseling for oppositional defiant disorder at Behavioral Health Services of Yakima. This is an extraordinary history of opportunities from whi~h a 10I year-old child with average or better than average cognitive ability could learn ~hat constitutes assault and that it is wrong. This factor weighs strongly in favor of finding capacity. Acknowledgment that behavior is wrong. A child's acknowledgement tjat his conduct was wrong at the time he engaged in it is evidence of understanding a9d supports I a finding of capacity. J.P.S., 135 Wn.2d at 44. An acknowledgment after a chtld has been I ! taught that his conduct was wrong "is not particularly probative of whether the /child I understood conduct was wrong at the time it occurred." Id. It is verbal acknowledgement 13 No. 32956-9-III State v. R. C. of wrongdoing that courts consider under this factor. See Ramer, 151 Wn.2d at 116 I ! (considering child's comment that conduct was "kind of sort of wrong"); JP.S.,i 135 Wn.2d at 44 (considering child's statement that conduct was "bad"). At R.C.'s adjudication hearing, there was some testimony that he apologtzed after the assaults on his great-aunt and mother, but that evidence was not presented iJ the ,i capacity hearing. In announcing its finding of capacity, the trial court identifie4 as ' relevant to this factor only actions and statements from which one might infer t~at R.C. knew his assaults were wrong: his being "scared shitless" of going to jail, his trying to ! ' I calm himself down after the first two assaults, and his lying to police officers alj,out what had happened. RP at 4 7. Having considered that evidence in connection with other factors, we do not count it again here. This factor does not weigh for or against a finding of capacity. Considering all seven factors, the State presented substantial clear and c~nvincing evidence from which the trial court could reasonably find that it overcame the presumption that R.C. lacked the capacity to commit assault. R.C. and amici nonetheless argue that a child's impulsivity, susceptibilitl)' to outside pressures, and capacity for growth and change-qualities that distinguir h children from adults-should cause us to modify the seven-factor inquiry or should infJrm the I inquiry in a way they contend it did not in R.C. 's case. They cite to Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979), Eddings v. Oklahoma, 455 U.S. 104, 14 No. 32956-9-III State v. R. C. 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004), Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 11:83, 161 L. Ed. 2d 1 (2005), Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Eq. 2d 825 I I (2010), JD.B. v. North Carolina, 564 U.S. 261, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011), and Miller v. Alabama,_ U.S ..- , 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). None of the cases cited has any direct application to the issue of capacity to commit a crime. 2 All discuss current or then-current knowledge about the juveijiile brain. We see no reason why the science they discuss could not have been presented in R.C.'s capacity hearing to the extent it was relevant. We have no reason to believe th~t a superior court judge assigned to juvenile court would not have some knowledg¢ of the ' science. But its relevance would have been limited to the issue in the capacity hearing: whether R.C. had the capacity to understand the acts charged and know that th~y were wrong. Wher~ a juvenile has that capacity, our legislature intends that the crim~s charged 2 Bellotti considered whether a minor has capacity to consent to an abo~on without parental consent and is not instructive on the issue at hand. Yarboroug~ considered, and JD.B. held, that a person's status as a juvenile should inform Whether a reasonable person would have felt free to leave in the court's analysis ofwheth~r the juvenile was in custody. The reasonable person standard is not at issue in a cat1acity hearing, and to the extent it is, the court includes that in the analysis in its consideration of the child's age and maturity. Eddings, Roper, Graham, and Miller all addre~sed the imposition of life sentences or the death penalty on juveniles, and found that b cause juveniles are less mature, more susceptible to influence, and their character is 1 ss fixed than adults, their youth should be a mitigating factor in sentencing. While thes~ cases recognize a distinction between juveniles and adults, none relate to a juvenile's capacity to commit a crime. 15 No. 32956-9-III State v. R. C. be adjudicated in the juvenile justice system. And the juvenile justice system itself reflects the legislature's recognitioi that a child's criminal act must be addressed differently than the criminal act of an ad~lt. "[T]he fundamental difference between juvenile courts and adult courts" is that, "unlik~ wholly punitive adult courts, juvenile courts remain[ ] rehabilitative." State v. Saenz, 1~ 5 Wn.2d ' 167, 172-73, 283 P.3d 1094, aff'd, 175 Wn.2d 167,283 P.3d 1094 (2012). Sae,v,z summarizes a number of respects in which Washington law responds to the fac~ that juvenile brains, and therefore the juvenile justice response, must be different. The longstanding seven-factor analysis of capacity remains viable and supports I R.C.'s capacity. II. Ineffective assistance of counsel R.C. 's other assignment of error is to his trial lawyer's failure to assert sflfI defense at trial, which he argues amounts to ineffective assistance of counsel. lpot only ! did R.C.'s trial lawyer not assert self-defense, he stated at the time of the dispo$ition: ! i I'm not trying to justify [R.C.'s] actions[,] because he was out of: control that day. I don't think his actions really properly fit into a selfdefense mode. ! RP at 174. He did argue that "where mitigation is ever something that should ~e I ! considered, this is the ultimate case for that." Id. I I "The Sixth Amendment to the United States Constitution and article I, sbction 22 of the Washington Constitution guarantee the right to effective assistance of counsel." 16 No. 32956-9-III State v. R. C. State Grier, 171 Wn.2d 17, 32, 246 P .3d 1260 (2011 ). In Strickland V. Washirzgton, V. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the United States $upreme Court held that a defendant's claim that his lawyer's performance was so defect~ve as to require reversal has two components: i First, the defendant must show that counsel's performance was deficient) This requires showing that counsel made errors so serious that counsel \\1as not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient s performance prejudiced the defense. This requires showing that counsel 1 errors were so serious as to deprive the defendant of a fair trial, a trial · whose result is reliable. ! The claim of ineffective assistance of counsel fails if the defendant fails to prov~ either i prong. State v. Thomas, 109 Wn.2d 222,226, 743 P.2d 816 (1987). Because ineffective assistance of counsel is an issue of constitutional magnitude, it may be raised for the first time on appeal. State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). 3 Courts engage in a strong presumption that counsel performed effectivel~. I Strickland, 466 U.S. at 689. The burden is on a defendant alleging ineffective ~ssistance of counsel to show deficient representation based on the record established in the 3 While a constitutional error must be manifest in order to fall within RA--P 2.5(a)(3)'s exception to the issue preservation requirement, a defendant's demtjnstration of the second Strickland prong satisfies the requirement that the error be maniftst. An error is manifest if it actually prejudices the defendant. State v. Kirkman, 159 Wn.2d 918,935, 155 P.3d 125 (2007). '"Essential to this determination is a plausiblelshowing by the defendant that the asserted error had practical and identifiable consequeiiices in the trial of the case.'" State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257 (1999) (quoting State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992)). 17 No. 32956-9-III State v. R. C. proceedings below. State v. McFarland, 127 Wn.2d 322,335, 899 P.2d 1251 ( 995). It is a defense to a charge of assault that the force used was lawful. The use of force is lawful "[w ]henever used by a party about to be injured ... in case the force is not more than is necessary." RCW 9A.16.020(3). The reasonable self-defense standard incorporates both objective and subjective considerations: "the subjective porti~n requires the jury to stand in the defendant's shoes and consider all the facts and 1 circumstances known to the defendant, while the objective portion requires the jury to determine what a reasonably prudent person similarly situated would do." Stat¢ v. Woods, 138 Wn. App. 191, 198, 156 P.3d 309 (2007) (citing State v. Janes, 121 Wn.2d 220,238, 850 P.2d 495 (1993)). Only after the defendant raises credible evidence tending to prove self-defense does the burden shift to the State to prove the absence of self-defense beyond a reasonable d_oubt. State v. Graves, 97 Wn. App. 55, 61-q2, 982 P .2d 627 ( 1999). R.C. did not testify. His mother testified that "[u]sing physical abuse ag~inst [R.C.] makes him ... aggressive-more aggressive because he's trying to prot¢ct himself'-which is why, she added, "I try not to use physical violence to get after him." RP at 107. There is no evidence that R.C.'s mother used any physical disciplin/e before i he struck her in the September 2014 incident. R.C.'s great-aunt testified that when R.C. hit and kicked her, "I think heithought I was going to hit him," adding, "but I wasn't going to hit him." RP at 84. 18 No. 32956-9-III State v. R. C. R.C. does not identify any evidence to which his trial lawyer could have ~ointed in support of argument that R.C. subjectively believed, or a reasonable child would have objectively believed, that he was about to be injured by his great-aunt, mother, ~nd aunt, and responded with necessary force. There was ample evidence that all three women were verbally disciplinitjg R.C. ' before each assault, that his aunt was yelling and swearing at him, and that she }1)ulled the bucket out from under him-conduct that the trial court recognized was countef roductive and contributed to the escalating situation. But contrary to R.C. 's argument that his greataunt, mother, and aunt were to blame for all that happened, the trial court attrib~ted the ' women's conduct to frustration with a damaged and difficult child. It said ofR(C.'s greataunt, "She had had enough. She didn't know how to handle [him]. And this seems to be a common problem where he gets out of control." RP at 15 8. The court found tnat it was at i the point when R.C.'s mother 'just [couldn't] deal with him anymore," that his /aunt I stepped in, but it described R.C.'s aunt as also "pretty much at the end of her rdpe," and . I found that "[e]verybody is reacting because everybody's frustrated and concertjed, and they just don't know what to do." RP at 162. The court explicitly found all thr~e women I i to be credible. From its oral ruling, it is clear that it found their conduct-whil~ unfortunate in some cases-to be understandable. It told the three women at the conclusion of the hearing that, "I got a pretty good picture of what you've been going through with your testimony, and I know that you all care for [R.C.] a lot." RP at 173. 19 No. 32956-9-III State v. R. C. The trial court was aware that R.C. did not assault only women in his fanjlily. Evidence was presented that he was expelled from the third grade for "punching a police officer and the vice principal." RP at 107. When R.C. 's trial lawyer told the court, "I'm not trying to justify his actipns[,] I because he was out of control that day. I don't think his actions really properly ifit into a self-defense mode," we can see from the record that he was reasonably anticipating how i the trial court was likely to view the evidence. RP at 174. So he relied instead pn an I argument that merely raising a knife, without making a forward thrust, does notl amount ! to assault. To commit assault, "[t]he defendant's conduct must go beyond mere thr¢ats; there ' must be some physical action that, under all the circumstances, creates a reasonable apprehension that physical injury is imminent." 13A SETH A. FINE & DOUGLAS J. ENDE, i WASHINGTON PRACTICE: CRIMINAL LA w WITH SENTENCING FORMS § 305, at 42 (2d ed. 1998) (citing State v. Maurer, 34 Wn. App. 573,580,663 P.2d 152 (1983)). Y~t "the State need not show a thrusting or pointing of a weapon if other evidence, considered in ! light of the facts of the incident, raise[s] a factual issue that a defendant's condict amounts to 'violence begun."' Maurer, 34 Wn. App. at 574-75. In the end, the trial court found conduct sufficient to be "violence begulli," That a I defense strategy "ultimately proved unsuccessful is immaterial to an assessmeJ1t of defense counsel's initial calculus; hindsight has no place in an ineffective assistance 20 No. 32956-9-III State v. R. C. analysis." Grier, 171 Wn.2d at 43. Since R.C.'s trial lawyer's defense theory was a legitimate trial strategy, his performance was not deficient. Having found no deficient representation, we need not address the issue c;,f prejudice. Affirmed. A majority of the panel has determined this opinion will not be printed iri the Washington Appellate Reports, but it will be filed for public record pursuant to iRCW 2.06.040. 77·_/ /_ ~U) doway,J. WE CONCUR: Fe~:) J. 21 (' ~' F

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