State Of Washington v. Burrel M. Cushman

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, ) -
5,1T5
DIVISION ONE c_ 171-•
)
Respondent, ) -•J

) No. 75739-3-1
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v. ) 2::ff, rri
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) UNPUBLISHED OPINION tp r-
BURRELL MICHAEL CUSHMAN, ) —
) o "C.
Appellant. ) FILED: June 25, 2018
)
DWYER,J. — Burrell Cushman appeals from the judgment and sentence

entered on a jury's verdicts convicting him of one count of murder in the second

degree and one count of felony violation of a no-contact order. He contends that

the trial court erred by admitting testimony of his prior acts of domestic violence

against the murder victim, that he received ineffective assistance of counsel

because his lawyer at trial did not impeach a State witness with a nearly decade-

old misdemeanor theft conviction and did not argue at sentencing an inspired

theory of same criminal conduct, and that the prosecutor's rebuttal argument in

closing deprived him of his right to a fair trial. Concluding that there was no error,

we affirm.'

I Cushman also submits a pro se statement of additional grounds setting forth an
Ineffective assistance of counsel argument that does not merit appellate relief.
No. 75739-3-1/2

I

This matter arises from the murder of Amy Hargrove and the criminal

prosecution of Cushman. In 2008, Cushman and Hargrove began dating and, In

2010, they had a child together. In the months following their child's birth,

however, Cushman was seen engaging in several menacing and threatening

acts toward Hargrove.

According to Jennifer Hallman, a coworker and close friend of Hargrove,

Cushman had on at least two occasions appeared at Hargrove's workplace upset

and intoxicated. While there, he "would yell and scream at [Hargrove], would

threaten her,[and] would verbally abuse her." In response to Cushman's

aggressive conduct, Hargrove and Hallman would lock themselves in a room and

request that the building's security remove him from the premises. On one such

occasion, Cushman threatened Hargrove, "If you try and take my kid from me, I

will fucking kill you."

Hallman also recalled an incident in 2011 when Cushman and Hargrove

visited her house after work Hallman stated that Cushman had become "very

upset about a very small reason," and picked up a "very large vase," aimed it at

Hargrove's head, and threw it at her. The vase did not make contact with

Hargrove.

Hargrove ended her relationship with Cushman in 2011.

By 2012, Hargrove and the child that she conceived with Cushman were

living in the home of her mother, Janet Ford. Ford recalled that, after Hargrove

terminated her relationship with Cushman, Cushman nevertheless visited

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No. 75739-3-1/3

Hargrove at Ford's home. On one such occasion, Ford overheard heated

argument between Cushman and Hargrove followed by a "loud thud" and the

sound of Hargrove screaming. When Ford located Hargrove, she was crying and

covering her face and one of her eyes was red. Ford believed that Cushman had

punched Hargrove in the face. She ordered Cushman out of her home and

indicated that she would never allow him back into her home.

Shortly thereafter, Hargrove obtained a one-year no-contact order against

Cushman, prohibiting him from approaching her or their child. To Ford's

knowledge at that time, Hargrove and Cushman had no further interaction with

each other.

Hargrove renewed the one-year no-contact order in May 2013. By mid-

2013, Hargrove had moved into the mother-in-law unit attached to Ford's home.

Beginning in November 2013, Hargrove and Cushman began to contact

each other in an attempt to repair their prior relationship. Hargrove did not tell

Ford that she was again seeing Cushman.

On the weekend of January 4, 2014, Hargrove arranged for Paula

Cushman, Burrell Cushman's mother, to take care of Hargrove's and Cushman's

child for the weekend. Paula picked up the child and also exchanged telephone

calls and text messages with Hargrove throughout the weekend until the early

afternoon of January 5. After then, Paula received no further communication

from Hargrove.

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No. 75739-3-1/4

Also during the afternoon of January 5, Paula spoke with Cushman over

the telephone. Cushman told her that he and Hargrove had been fighting, that

there was some pushing, yelling, and screaming, and that he had a "bad feeling."

The next day, January 6, after Hargrove neither appeared at a family

function nor responded to Ford's text messages from the day before, Ford

entered the mother-in-law unit attached to her home. There, in the bedroom, she

found Hargrove dead.

Hargrove's body was fully clothed, partially covered by blankets, and had

been positioned face down on the bed's mattress. Placed over Hargrove's upper

torso was a hooded,zippered sweatshirt with the hood's draw string pulled all the

way to the end of its length. The cause of Hargrove's death was alleged to be

asphyxiation by strangulation and her death was alleged to have occurred during

the afternoon of January 5.

Further investigation of the mother-in-law unit uncovered that a burner on

the kitchen stove had been left on, that cooking oil had been tossed around the

kitchen, and that a space heater had been activated to a high temperature setting

and placed underneath the bed where Hargrove's body had been discovered,

with a blanket draped over it. Notwithstanding these circumstances, no fire had

broken out.

When Paula returned to Hargrove's residence on January 6 and spoke

with the law enforcement officers present, she informed them of her telephone

conversation with Cushman during the late afternoon of January 5.

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No. 75739-3-1/5

At Paula's direction, Cushman contacted law enforcement. He was invited

to meet with detectives at the police station. When he accepted the invitation,

Cushman was driving in a car accompanied by two of his friends, Bonnie

DeMarce and Darryl Jones. DeMarce asked Cushman why he needed to go to

the police station. Cushman replied, "It is okay, I did something really stupid. It

is okay, 1— I covered it up."

While at the police station, Cushman acknowledged that he was with

Hargrove from Saturday, January 4, until Sunday, January 5, around 4:00 p.m.

The detectives noticed fresh abrasions and scratches on Cushman's hands and

forearms. He was later arrested and held on suspicion of a violation of the no-

contact order prohibiting him from having contact with Hargrove.

After further investigation, Cushman was charged with one count of

murder in the second degree, one count of attempted arson in the first degree,

and one count of felony violation of a no-contact order.

Prior to trial, a hearing occurred to determine whether Hallman's and

Ford's testimony regarding their observations of Cushman's domestic violence

toward Hargrove between 2009 and 2012 should be admitted. Relying on the

State's offer of proof—and over Cushman's objection—the trial court admitted

Hallman's and Ford's testimony for the limited purpose of showing Cushman's

motive, res gestae, and the nature of Hargrove's and Cushman's relationship.

A 10-day trial commenced. The prosecutor called several witnesses,

including Hallman, Ford, and DeMarce. After the State rested its case in chief,

defense counsel called Burrell DeBose(Cushman's father) and Patricia Cook

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No. 75739-3-116

(DeBose's girlfriend) to support Cushman's general denial defense. The defense

witnesses testified that, on January 5, Cushman had arrived at DeBose's home

before the time at which Hargrove was alleged to have been murdered.

Thereafter, the defense rested.

Both parties then presented closing argument, during which no objections

were interposed.

The jury later returned verdicts finding Cushman guilty of one count of

murder in the second degree and one count of felony violation of a no-contact

order. The jury acquitted Cushman of the charged count of attempted arson in

the first degree. The jury further found that Cushman and Hargrove were

members of the same family or household at the time that the crimes of

conviction occurred.

At sentencing, the court determined that Cushman's prior criminal

convictions and then-current crimes of conviction warranted an offender score of

5 for sentencing purposes. Defense counsel objected, but acknowledged that his

objection was based on policy—rather than legal—grounds. Defense counsel's

objection was overruled.

Thereafter, the court imposed a sentence at the top of the standard range.

Cushman was ordered to be incarcerated for 275 months for his conviction of

second degree murder and, concurrently, 43 months for his conviction of felony

violation of a no-contact order.

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No. 75739-3-1/7

II

A

Cushman contends that the trial court erred by allowing the State to

introduce evidence of his prior verbal and physical abuse of Hargrove—acts

occurring nearly two years before her murder—on the basis that his acts were

probative of Cushman's motive to kill Hargrove. We disagree.

"Under ER 404(b)evidence of other crimes, wrongs, or acts is

presumptively inadmissible to prove character and show action in conformity

therewith." State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615(1995)(citing ER

404(b); Carson v. Fine, 123 Wn.2d 206, 221,867 P.2d 610(1994)). However,

such evidence may "be admissible for other purposes, such as proof of motive."

ER 404(b).

We review a trial court's ruling pursuant to ER 404(b)for an abuse of

discretion. State v. Vy Thanq 145 Wn.2d 630, 642, 41 P.3d 1159(2002)(citing

State v. Dennison, 115 Wn.2d 609,627-28, 801 P.2d 193(1990)). Abuse of

discretion occurs "only where the decision of the trial court was manifestly

unreasonable or based on untenable grounds." State v. Freeburg 105 Wn. App.

492,497, 20 P.3d 984(2001)(citing Powell, 126 Wn.2d at 258). A trial court

abuses its discretion only if no reasonable judge would adopt the view espoused

by the trial court. State v. Demerv, 144 Wn.2d 753,758, 30 P.3d 1278(2001).

For evidence of prior bad acts to be admissible, a trial judge
must "(1)find by a preponderance of the evidence that the
misconduct occurred,(2) Identify the purpose for which the
evidence is sought to be introduced,(3) determine whether the
evidence is relevant to prove an element of the crime charged, and
(4) weigh the probative value against the prejudicial effect? Nli

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No. 75739-3-1/8

Thanq, 145 Wn.2d at 642 (citing 'State v.1 Lough, 125 Wn.2d [847,]
853[, 889 P.2d 487(1995)]). "This analysis must be conducted on
the record? State v. Foxhoven 161 Wn.2d 168, 175, 163 P.3d 786
(2007)(citing State v. Smith, 106 Wn.2d 772,776, 725 P.2d 951
(1986)). The trial court must also give a limiting instruction to the
jury if the evidence is admitted. Id. (citing Lough, 125 Wn.2d at
864).

State v. Gunderson, 181 Wn.2d 916, 923, 337 P.3d 1090(2014).

"Motive, for purposes of the admissibility of evidence under ER 404(b),

'goes beyond gain and can demonstrate an impulse, desire, or any other moving

power which causes an individual to act.'" State v. Baker, 162 Wn. App. 468,

473-74, 259 P.3d 270(2011)(quoting Powell, 126 Wn.2d at 259).

A number of cases dealing with the admissibility of evidence
of prior assaults and quarrels have found that "[e]vidence of
previous quarrels and ill-feeling is admissible to show motive:
State v. Hover, 105 Wash. 160, 163, 177 P.683(1919). Evidence
of prior threats is also admissible to show motive or malice. State
v. Gates, 28 Wash.689,697-98, 69 P. 385(1902); see generally
(State v. lAmerick[,42 Wn.2d 504, 256 P.2d 278 (1953)]; 1 Charles
E. Torcia, Wharton's Criminal Evidence § 110, at 389-90 (14th ed.
1985). However, such evidence must also be of consequence to
the action to justify its admission. Since establishing motive is often
necessary when only circumstantial proofof guilt exists, prior
misconduct evidence that demonstrates motive is of consequence
to the action in a case such as this. See WAYNE R. LAFAVE &
AUSTIN W.SCOTT, JR. CRIMINAL LAW § 3.6, at 227(2d ed. 1986).

Powell 126 Wn.2d at 260(emphasis added); see also State v. Athan, 160 Wn.2d

354, 382, 158 P.3d 27(2007)(citing Powell 126 Wn.2d at 260). Indeed, to show

motive, u[e]vidence of a past attack by a defendant toward a victim is admissible

pursuant to ER 404(b) if the evidence demonstrates an ill feeling between the

two." State v. Arredondo, 188 Wn.2d 244, 260, 394 P.3d 348(2017)(citing

Powell, 126 Wn.2d at 260-61)(defendant's involvement in prior shooting

demonstrates "highly strained and toxic relationship between local ... gang

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No. 75739-3-1/9

members"). Notably, both our Supreme Court and this court have affirmed trial

court rulings admitting evidence of a defendant's prior acts of domestic violence

in an intimate partner murder prosecution when the evidence was offered to

show the defendant's motive. See, e.g., Americk, 42 Wn.2d at 506-08. State v.

Neslund, 50 Wn. App. 531, 545, 559,749 P.2d 725(1988).

Here, the trial judge explained,

Okay. Well, here is what we've got, let me see if I can break this
down for you. We have observations by witnesses, we have Janet
Ford, who the State tells me, and I assume that the State's
representations about what these witnesses have said in interviews
is sufficiently accurate, that the State can at least present these
incidents by a preponderance of the evidence. The other witnesses
— so In terms of observed behavior, we have Janet Ford, who
indicates that back in 2009, 2010, that she saw arguments between
the defendant and the victim and she saw, on one occasion, when
the victim had a black eye. We have Jennifer Hallman who,
apparently knew the parties between 2008 to late 2013, in
particular, 2009 to 2012. And from what 1 gathered from the State,
she actually saw the defendant throw a — at the victim, she heard
that the defendant threaten to kill the victim if she took Levy. She
saw the defendant coming to the work place, she saw the victim
lock herself in a closet, and she saw security escort the defendant
from the property. This is all observed behavior, not statements
from the victim.

From this, the trial court reasoned,

[E]vidence of a troubled, hostile, angry, or otherwise dysfunctional
relationship seems usually to be admissible to show motive, in
particular, in a situation where the State's evidence is
circumstantial, which is this case, primarily. There is no direct
evidence in this case that I can see, other than the DNA evidence,
and I think when you have parties with an intimate relationship, it is
still circumstantial, at bottom. So it seems to me,to the extent we
have observed behavior here, the observed arguments, the
observed black eye, the observed throwing of the vase, the
observed threats to kill, the observed coming to the work place, the
observed locking of the victim of herself in a closet, the
observations of the defendant being escorted from the property,
this all tends to be evidence that establishes the nature of this

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No. 75739-3-1/10

relationship. And to the extent that the text messages between the
parties show close in time the event, that the relationship continued
to be a troubled one with a lot of tension between the two of them,
under the existing cases that I have seen, that is admissible to
establish motive. And to the extent that these things are close in
time to the event, 1 do truly think they are res gestae in the sense of
completing the story of what the relationship between the parties
was.121

The trial court accordingly concluded,

Mhe behaviors that were reported herell tend to suggest that this
was an abusive, violent relationship, and that there was behavior
that indicated fear of the defendant and the need for the defendant
to be taken from the property tends to indicate that the defendant
understood there was fear of him, it tends to show the nature of the
relationship, and it tends to eliminate [sic] what his motive may
have been in killing this particular person in the circumstantial
evidence case. So !think it is probative on motive.

The trial judge's ruling was sound. The trial judge identified that Hallman's

and Ford's observation testimony was probative of Cushman's motive because

their testimony supported the allegation that Cushman had a history of abusive,

threatening, violent, assaultive, and controlling behavior toward Hargrove.

Moreover, as well-reasoned by the trial judge, this testimony was highly probative

in this matter because the State's murder charge was brought in significant

reliance on circumstantial evidence. Thus, the trial court did not abuse its

discretion.3 There was no error.

2 The trial court also ruled that the State could not offer the evidence of Cushman's prior
bad acts against Hargrove to support an alleged intent to commit the charged murder offense.
3 Cushman nevertheless relies on two appellate decisions, powell, 126 Wn.2d 244, and
Baker, 162 Wn. App. 468, for the proposition that "prior domestic violence between the defendant
and the victim Is not relevant or admissible to prove motive unless it is close In time to the current
offense." Br. of Appellant at 14. In each decision, however, the trial court's decision to admit the
evidence was affirmed by the appellate court and neither decision, In actuality, sets forth the
negative proposition proffered by Cushman. His reliance is thus unavailing.
Cushman also relies on our decision In State v. Sargent 40 Wn. App. 340, 351-52,698
P.2d 598(1985). However, because Sargent regarded evidence of a prior bad act offered to
show intent, rather than motive Sargent does not lend support to Cushman's argument

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B

Cushman next contends that he was denied effective assistance of

counsel because his attorney did not impeach DeMarce's testimony with a prior

third degree theft conviction. We disagree.

To establish a claim of constitutionally ineffective assistance of counsel, a

defendant must establish "that(1)counsel's performance, when considered in

light of all the circumstances, fell below an objectively reasonable standard of

performance and (2)there is a reasonable probability that, but for counsel's

deficient performance, the result of the proceeding would have been different."

State v. Woods, 198 Wn.App. 453,461, 393 P.3d 886(2017)(citing Strickland v.

Washington,466 U.S.668,687, 104 S. Ct. 2052,80 L. Ed. 2d 674(1984)).

Failure to satisfy either part of the analysis ends the inquiry. State v.

Hendrickson 129 Wn.2d 61, 78,917 P.2d 563(1996). The defendant bears the

burden of demonstrating deficient representation and prejudice. In re Det. of

Hatfield, 191 Wn. App. 378, 401, 362 P.3d 997(2015).

"Because the presumption runs in favor of effective representation, the

defendant must show in the record the absence of legitimate strategic or tactical

reasons supporting the challenged conduct by counsel." State v. McFarland, 127

Wn.2d 322, 336,899 P.2d 1251 (1995). "[T]he presumption of adequate

representation is not overcome if there is any 'conceivable legitimate tactic' that

can explain counsel's performance." Hatfield, 191 Wn. App. at 402(emphasis

Cushman next relies on our Supreme Court's opinion in Gunderson, 181 Wn.2d 916. But
Gunderson regarded Inadmissible prior bad act evidence offered to Impeach the defendant's
testimony in the prosecution of a felony violation of a court order. The circumstances herein are
materially different.
No. 75739-3-1/12

added)(quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80

(2004)). Prejudice is established when there is a reasonable probability that the

outcome of the proceedings would have been different had counsel's

performance not been deficient. McFarland 127 Wn.2d at 337.

Here, prior to DeMarce's testimony, Cushman's counsel indicated that he

would not seek to impeach DeMarce's testimony with a pending misdemeanor

theft charge?' DeMarce then testified, stating that she was with Cushman when

he accepted law enforcement's invitation to go to the police station, that she had

Inquired of Cushman regarding his need to go to the police station, and that

Cushman had replied, "It is okay, I did something really stupid. It is okay, I— I

covered it up."

DeMarce later concluded her testimony and another witness testified.

Then, after the jury had been dismissed for the day, the trial judge notified

counsel for both parties that she had discovered that DeMarce had been

convicted of theft in the third degree on November 8, 2007, nearly a decade

earlier. Defense counsel for Cushman did not seek to recall DeMarce in order to

impeach her with this prior misdemeanor theft conviction.

At trial, defense counsel's trial theory was that Cushman had unknowingly

violated the no-contact order and was innocent of the murder and attempted

arson charges. In closing, defense counsel argued that the "something really

stupid" that Cushman was referring to was not murdering Hargrove but, rather,

was his covering up of the violation of the no-contact order.

4 The colloquy with the trial Judge reflected that DeMarce's pending misdemeanor theft
charge might be dismissed upon her completion of certain conditions.

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No. 75739-3-1/13

Defense counsel's representation was not constitutionally ineffective. It is

reasonably conceivable that defense counsel did not wish to impeach DeMarce

because such impeachment would not advance the defense theory of the case

that Cushman had been in the presence of Hargrove that day (in unknowing

violation of the no-contact order) but had not murdered her.5 Moreover, it is

conceivable that a reasonable defense counsel would not seek to recall a

witness that had already been excused to merely impeach the witness with a

decade-old misdemeanor theft conviction. Furthermore, it is a conceivable

legitimate tactic to refrain from impeaching a witness with such an old and minor

conviction when such impeachment might result in a negative emotional

response by the jury against defense counsel and, by association, against the

defense case.

Even had defense counsel's performance been deficient, there is not a

reasonable probability that, but for such performance, the result of the

proceeding would have been different. Indeed, assuming defense counsel had

impeached DeMarce with the nearly decade-old conviction, there remains in the

trial record testimony supporting Cushman's history of violence and abuse

toward Hargrove, testimony relating to Cushman's car being in the vicinity of

Hargrove's residence on January 5, the police interview of Cushman admitting

that he had visited Hargrove on January 5, and video camera footage showing

Jones and DeMarce getting into Cushman's car on the day that DeMarce

5 Indeed, defense counsel's theory was partially successful—the jury acquitted Cushman
of the charged count of attempted arson in the first degree, an offense with a greater seriousness
level than the crime of felony violation of a no-contact order. See RCW 9.94A.515,.525(6).

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No. 75739-3-1/14

testified that Cushman said that he did "something stupid." In this light, there is

no reasonable possibility that, had defense counsel impeached DeMarce with the

prior conviction, the jury's verdicts would have changed.

Cushman establishes neither requirement of the Strickland inquiry. He

was not denied his right to constitutionally effective representation. There was

no error.

C

Cushman next contends that the prosecutor engaged in misconduct that

deprived him of his right to a fair trial because the prosecutors statements in

rebuttal closing argument shifted the State's burden of proof. This is so,

Cushman asserts, because the prosecutor complimented defense counsel as a

"very good defense attorney" who "advocate[ed] in the strongest way the

defendant's best perspective." We disagree.

A criminal defendant has no duty to present evidence and it is error for the

prosecutor to suggest otherwise. State v. Cheatam, 150 Wn.2d 626,652, 81

P.3d 830(2003). An argument that shifts the State's burden to prove guilt

beyond a reasonable doubt constitutes misconduct. State v. Thorgerson, 172

Wn.2d 438,453, 258 P.3d 43(2011); State v. Gregory, 158 Wn.2d 759,859-61,

147 P.3d 1201 (2006).

However, a prosecutor Is entitled to point out the improbability or lack of

evidentiary support for the defense theory of the case. State v. Russell, 125

Wn.2d 24,87,882 P.2d 747(1994). A prosecutor has wide latitude to comment

on the evidence introduced at trial and to draw reasonable inferences from the

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No. 75739-3-1/15

evidence. Thomerson 172 Wn.2d at 448. The "mere mention that defense

evidence is lacking does not constitute prosecutorial misconduct or shift the

burden of proof to the defense." State v. Jackson 150 Wn. App. 877, 885-86,

209 P.3d 553(2009). We evaluate the challenged statements in "the context of

the prosecutor's entire argument, the issues in the case, the evidence discussed

in the argument, and the jury instructions." State v. Dhaliwal 150 Wn.2d 559,

578,79 P.3d 432(2003).

The prosecutor's statements in rebuttal closing argument began as

follows:

MR. DERNBACH: Thank you. So as the Court and Mr.
Hicks had pointed out, I bear the burden of proof, which is why I get
the last word. This is my opportunity to point out all of the reasons
why the arguments that Mr. Hicks made for you this morning do not
amount to a reasonable doubt in this case. Most of the reasons for
that is going to be because many of the arguments that Mr. Hicks
made were simply not supported by the facts and the evidence that
you have heard in this case.... The short answer in this case is
that I will remind you again, I will start where I began yesterday,
and that is with the burden of proof. And that the reasonable doubt
instruction that you have In instruction No. 3 sets forth that a
reasonable doubt is one in the mind of a reasonable person, based
on the evidence or lack of evidence. It is not something that's
made up, it is not something that's a phantom doubt, it is something
that is based upon the evidence or lack of evidence that you would
have seen in this courtroom.

Thereafter, the prosecutor stated that the argument presented by defense

counsel did not support a reasonable doubt based on the evidence adduced in

the case.

Now, I will say, as I think you probably have noticed in this trial, that
Mr. Hicks and I have a mutual respect for each other. He is a very
good defense attorney, we have often referred to each other as
opposing counsel, but I actually like to think of it more as partners
in justice. This system doesn't work without a prosecutor and

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No. 75739-3-1/16

defense attorney here. And it is helpful for both me, and / think it is
helpful for you to have somebody advocating in the strongest way
the defendant's best perspective on a case. Because when those
arguments fail, as they do in this case, it helps you to make a
decision beyond a reasonable doubt, based on the evidence that
you heard, in returning a guilty verdict

(Emphasis added.) Thereafter, the prosecutor individually addressed several "of

the arguments that defense counsel made." No objection was interposed in

response to these statements.

Notably,

[w]hen counsel does not object to a prosecutor's alleged
misconduct, request a curative instruction, or move for a mistrial,
appellate review of the prosecutor's conduct is precluded unless it
was misconduct so flagrant and ill intentioned that no instruction
could erase the prejudice engendered by it. State v. Belgarde, 110
Wn.2d 504, 507,755 P.2d 174(1988); State v. Dunaway, 109
Wn.2d 207, 221,743 P.2d 1237, corrected, 749 P.2d 160(1987). If
unchallenged misconduct was so inflammatory that an instruction
would not have cured it, reversal of the conviction is required if
there is a substantial likelihood that the misconduct affected the
jury's decision. Belqarde, 110 Wn.2d at 509-10; State v. Barrow,
60 Wn. App. 869, 876, 809 P.2d 209, review denied, 118 Wn.2d
1007(1991).

State v. Fiallo-Lopez, 78 Wn. App. 717, 726,899 P.2d 1294(1995).

Cushman does not establish that the prosecutors compliments to defense

counsel during closing argument constituted flagrant and ill-intentioned

misconduct. There is no clear indication that the prosecutor's statements

regarding defense counsel were a blatant attempt to shift the State's burden of

proof. Indeed, based on the context of the comments, it is clear that the

prosecutor was merely complimenting defense counsel's reputation and

performance, acknowledging the positive impact of good legal representation on

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No. 75739-3-1117

the criminal justice system, and urging the jury to nevertheless reject defense

counsel's arguments.

Cushman nevertheless contends that the prosecutor's statements

Improperly shifted the State's burden of proof because the statements "asked the

jury to assume there was no reasonable doubt because defense counsel had not

supplied it." Br. of Appellant at 29.

Cushman does not show that the prosecutor's statements constituted

flagrant and ill-intentioned misconduct. Cushman's argument is predicated on

the incorrect notion that the prosecutor had emphasized the lack of evidence

supplied by defense counsel. The prosecutor's rebuttal argument, however,

rather than emphasizing a lack of evidence adduced by defense counsel, iterated

that it was the defense counsel's arguments that were lacking. Indeed, the

prosecutor's argument in rebuttal explicitly stated that, notwithstanding defense

counsel's strong "advocac[y]", defense counsel's "arguments fail." In this light,

the prosecutor's rebuttal argument did not mention—or even reasonably imply—

that defense counsel had an obligation to produce evidence or articulate reasons

to doubt the State's case. Thus, the prosecutors statements in rebuttal closing

argument did not improperly shift the State's burden of proof.6

There was no error.

6 Cushman relies on State v. Cleveland 58 Wn. App. 634, 794 P.2d 546(1990), in
claimed support of his contention that the prosecutors rebuttal statements here at issue
improperly shifted the State's burden of proof. Cushman's reliance is unavailing. Unlike here,
Cleveland regarded not only prosecutorial misconduct to which an objection had been interposed
before the trial court but also involved statements that"a good defense attorney* like the defense
counsel therein "would not have overlooked any opportunity to present admissible, helpful
evidence to you"--1.e., closing argument improperly regarding defense counsel's evidence, rather
than defense counsel's arguments. 58 Wn. App. at 647.

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No. 75739-3-1/18

D

Cushman next contends that he received ineffective assistance of counsel

because his lawyer did not argue at sentencing that, for the purpose of

calculating his offender score, his convictions for murder in the second degree

and felony violation of a no-contact order constituted the same criminal conduct

We disagree.

As an initial matter, uncertainty over whether two acts constitute the same

criminal conduct for sentencing purposes does not allow Cushman to succeed on

an ineffective assistance of counsel claim. Rather, for Cushman to prevail, he

must show that his counsel's performance was deficient and that this deficient

performance prejudiced his defense. Failure to establish either requirement is

fatal to a claim of ineffective assistance of counsel. Strickland, 466 U.S. at 697.

Again, there is a strong presumption that counsel's representation was

effective. McFarland, 127 Wn.2d at 335. This presumption can be rebutted if the

defendant proves that his attorney's representation "'was unreasonable under

prevailing professional norms.'" In re Pers. Restraint of Davis, 152 Wn.2d 647,

673, 101 P.3d 1 (2004)(quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106

S. Ct. 2574, 91 L Ed. 2d 305 (1986)). Notably, however,"[c]ounsel's failure to

raise [a] novel argument does not render his performance constitutionally

ineffective." Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005).

Here, Cushman asserts that both the murder and felony violation of a no-

contact order involved the same intent, the same victim, and the same time and

place and that these crimes thus encompass the same criminal conduct.

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Therefore, Cushman continues, these crimes should have been counted as a

single crime for purposes of sentencing and his attorney should have so argued

at sentencing.

However, as we have previously explained, u[t]he legislature [has]

recognized that violation of a no-contact order is a crime against the court and

punishable as contempt of court." State v. Moreno, 132 Wn. App.663,671, 132

P.3d 1137(2006)(emphasis added)(citing RCW 26.50.110(3)). Hence, because

these crimes do not involve the same victim, they do not encompass the same

criminal conduct. An argument to the contrary by Cushman's attorney would

have failed and, consequently, so must his claim for ineffective assistance of

counse1.7

Appellate counsel, highlighting the seeming inconsistencies between our

Supreme Court's decisions in State v. Chenoweth, 185 Wn.2d 218, 370 P.3d 6

(2016), and State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237,749 P.2d 160

(1988), nevertheless posits an inspired argument in favor of a determination that

Cushman's unlawful actions here at issue constituted the same criminal conduct

and that counsel was ineffective for failing to raise such an argument. However,

the Constitution does not require appointed counsel to be inspired. It requires

counsel to be, at least, reasonably competent. We see no indication that

counsel's performance fell below that standard.

7 Cushman presses an argument that Moreno was wrongly decided. However, an
attorney Is not constitutionally ineffective merely because the attorney chooses not to argue that
precedent should be overturned. Brown v. United States, 311 F.3d 875, 878(8th dr.2002)
r(Clounsel's decision not to raise an Issue unsupported by then-existing precedent did not
constitute ineffective assistance?).

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There was no error.8

Affirmed.

We concur:

ig ritc, /LC . Ad.

8 In a statement of additional grounds, Cushman contends that he received ineffective
assistance of counsel because his attorney did not request that the jury be Issued an instruction
on the lesser crime of manslaughter In the first degree. However, Cushman does not rebut the
presumption that his counsel was effective. Again,"the presumption of adequate representation
Is not overcome if there Is any 'conceivable legitimate tactic' that can explain counsel's
performance.' Hatfield 191 Wn. App. at 402(emphasis added)(quoting Feichenbach 153
Wn.2d at 130).
Here, we can conceive of a legitimate tactic supporting defense counsel's alleged
omission. Indeed, requesting such an instruction would be Inconsistent with defense counsel's
trial theory—general denial—because it would place counsel in the position of presenting two
conflicting defenses to the jury: that Cushman was Innocent of killing Hargrove and, alternatively,
that he had killed Hargrove but had committed the act while under a less culpable mental state
than that required for the charge of murder in the second degree. It is a legitimate tactic for
defense counsel to elect to not present such conflicting defenses to the jury. This Is especially so
when, as here, defense counsel successfully sought a lesser included offense instruction on
murder in the second degree. Counsel's decision was both tactical and successful.
There was no error.

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