IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

STATE OF WASHINGTON, No. 54459-8-II

Respondent,

v.

JACOB A. SMITH, UNPUBLISHED OPINION

Appellant.

LEE, C.J. — Jacob A. Smith appeals his convictions for two counts of possession of a 

controlled substance with intent to deliver and one count of bail jumping. Smith argues that he 

received ineffective assistance of counsel. We disagree and affirm Smith’s convictions.

Smith has also filed a motion to remand for resentencing in light of State v. Blake.

1

 The 

State concedes that remand for resentencing is appropriate in light of Blake. We grant Smith’s 

motion to remand for resentencing.2 

FACTS

The State charged Smith with two counts of possession of a controlled substance with 

intent to deliver. Later, the State added a count of bail jumping. Smith’s jury trial began on 

January 21, 2020. 

 

1

 197 Wn.2d 170, 481 P.3d 521 (2021).

2

 Smith also argues that his judgment and sentence needs to be revised to omit the reference to an 

Idaho conviction in his criminal history. Because remand for resentencing is appropriate in light 

of State v. Blake, Smith can request that any errors in his criminal history be corrected on remand.

Filed

Washington State

Court of Appeals

Division Two

August 3, 2021
No. 54459-8-II

2

Brett Curtright, a community corrections specialist with the Department of Corrections 

(DOC), testified at trial. Curtright explained that his position was different than a community 

corrections officer because he did not carry a case load or supervise offenders. Curtright testified:

What I do is I track wanted fugitives that are on active supervision through the 

Department of Corrections. If their warrants go out or they have a certain amount 

of criminal history, I assign them and go find them and arrest them on their active 

warrants.

1 Verbatim Report of Proceedings (VRP) at 128. Curtright was also assigned to the Pacific 

Northwest Violent Offender Task Force and worked with Thurston County’s narcotics team under 

a memo of understanding. 

Curtright testified that on April 1, 2019, he was contacted by an informant with information 

about Smith. The next day, Curtright did some research and learned that someone matching the 

description provided by the informant was on active DOC supervision. He also learned that Smith 

had an outstanding DOC warrant that had issued April 1. The informant arranged to meet with 

Smith on April 2. Curtright intended to arrest Smith on the DOC warrant. 

The informant sent Curtright a screenshot of messages exchanged with Smith to arrange a 

meeting at a laundry place. Curtright testified that, based on the messages, there was a possibility 

a drug transaction would occur at the meeting between Smith and the informant. However, 

Curtright intended to arrest Smith before any drug transaction occurred. 

Curtright and other detectives set up surveillance of the parking lot where the meeting was 

supposed to take place. They observed a vehicle arrive with three occupants. Curtright identified 

one of the occupants as Smith. Curtright approached the vehicle and announced that he had a 

warrant for Smith’s arrest. Smith began to run. Curtright was able to apprehend Smith after a 

short foot pursuit. 
No. 54459-8-II

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In a search incident to arrest, Curtright found multiple packages of suspected narcotics 

including methamphetamine and heroin on Smith. Some of the brown substance suspected to be 

heroin was portioned out into a smaller packaged amount. 

Curtright also testified that after speaking with Smith, he assisted detectives with 

contacting the other occupants of the vehicles. One of the occupants, Telvin Chatman, was 

detained because he was on active DOC supervision. 

A forensic scientist with the Washington State Patrol tested the substances found on Smith 

at his arrest. One of the substances contained 12.9 grams of methamphetamine. The scientist also 

confirmed the packages containing brown substances were heroin. 

The jury found Smith guilty as charged. Smith’s criminal history included two prior 

convictions for simple possession. The trial court calculated Smith’s offender score at 7 points 

and imposed a standard range sentence of 75 months. 

Smith appeals. 

ANALYSIS

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Smith argues that he received ineffective assistance of counsel when defense counsel failed 

to object to testimony that Smith was arrested on a DOC warrant and that Curtright was part of a 

task force that tracked violent fugitives. We disagree.

To prevail on an ineffective assistance of counsel claim, the defendant must show both that 

defense counsel’s representation was deficient and the deficient performance resulted in prejudice 

to the defendant. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011), cert. denied, 574 

U.S. 860 (2014). Counsel’s performance is deficient if it falls below an objective standard of 

reasonableness. Id. at 33. There is a strong presumption that counsel’s performance was 
No. 54459-8-II

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reasonable. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). If the defendant bases an 

ineffective assistance of counsel claim on defense counsel’s failure to object, the defendant must 

show that the objection would have succeeded. State v. Gerdts, 136 Wn. App. 720, 727, 150 P.3d 

627 (2007). 

A defendant may overcome the presumption of reasonable performance by showing that 

“‘there is no conceivable legitimate tactic explaining counsel’s performance.’” Grier, 171 Wn.2d 

at 33 (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). There must be 

evidence regarding counsel’s strategic or tactical decisions in the record for this court to determine 

whether counsel’s performance was deficient. State v. Linville, 191 Wn.2d 513, 525-26, 423 P.3d 

842 (2018). 

To establish prejudice, the defendant must “prove that there is a reasonable probability that, 

but for counsel’s deficient performance, the outcome of the proceedings would have been 

different.” Kyllo, 166 Wn.2d at 862. 

As an initial matter, there is no evidence in the record about defense counsel’s strategic 

reason for not objecting to the testimony for us to consider in determining whether defense 

counsel’s performance was deficient. See Linville, 191 Wn.2d at 525-26. However, the record is 

sufficient for us to determine that defense counsel’s performance was not deficient in failing to 

object to Curtright’s testimony. 

First, there was no implication from Curtright’s testimony that Smith was a fugitive violent 

offender as Smith suggests. Curtright only testified that one of his assignments was to the Pacific 

Northwest Violent Offender Task Force and one of his duties is tracking “wanted fugitives that 

are on active supervision.” 1 VRP at 128. Curtright did not testify that Smith was a violent fugitive 

or that he was being tracked by the Pacific Northwest Violent Offender Task Force. In fact, 
No. 54459-8-II

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Curtright was clear that his investigation into Smith began when he was contacted by an informant 

through his other assignment with the Thurston County Narcotics Task Force. Only after receiving 

the tip from the informant did Curtright learn that Smith had a DOC warrant. Therefore, there was 

no implication from Curtright’s testimony that Smith was a violent, wanted fugitive. Accordingly, 

there was nothing for defense counsel to object to; thus, defense counsel’s performance was not 

deficient.

Second, the evidence that Smith was arrested on a DOC warrant was admissible. Evidence 

of prior crimes, wrongs, or acts is inadmissible if it is offered to prove the defendant’s character 

or that the defendant acted in conformity with that character. ER 404(b). However, “[u]nder the 

res gestae or ‘same transaction’ exception to ER 404(b), evidence of other crimes or bad acts is 

admissible to complete the story of a crime or to provide the immediate context for events close in 

both time and place to the charged crime.” State v. Lillard, 122 Wn. App. 422, 432, 93 P.3d 969 

(2004). Further, the court must balance the probative value of the evidence against any unfair 

prejudice. Id. at 431. 

Smith concedes that evidence that he was arrested on a warrant was admissible. But Smith 

argues that the fact the warrant was issued by DOC was irrelevant and highly prejudicial. 

However, the DOC warrant was relevant to explaining why Curtright intended to arrest Smith on 

the warrant, rather than to continue the narcotics investigation by potentially performing a 

controlled buy. Therefore, the DOC warrant was relevant under the res gestae exception to ER 

404(b). 

Smith argues that the DOC warrant was unduly prejudicial because it shows that Smith had 

a criminal history. However, Smith relies on cases in which the defendant’s actual prior 

convictions were introduced into evidence. See State v. Hardy, 133 Wn.2d 701, 710-11, 946 P.2d 
No. 54459-8-II

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1175 (1997) (discussing admissibility of prior convictions under ER 609 and noting that prejudice 

may result from both establishing a propensity for criminality or the specific nature of the prior 

conviction); State v. Shaver, 116 Wn. App. 375, 384-85, 65 P.3d 688 (2003) (holding defendant 

received ineffective assistance of counsel when counsel failed to object to admission of prior 

escape and drug convictions). 

Here, there was no specific evidence of Smith’s prior convictions. Because Smith’s prior 

convictions were not admitted, there was no possibility of specific prejudice resulting from 

showing a propensity based on the nature of Smith’s prior convictions. And although a DOC 

warrant implies that Smith has at least one prior conviction, there was not a high risk of showing 

a propensity for criminality because there was no evidence of the number of prior convictions nor 

the nature of any convictions. Because the DOC warrant implies a prior conviction, it is possible 

that the trial court may have sustained an objection. However, because the DOC warrant was 

relevant to the res gestae of the crime and was not unfairly prejudicial in this case, Smith has not 

met his burden of showing that the trial court would have excluded testimony that Smith had a 

DOC warrant if defense counsel had made an objection. Therefore, Smith has failed to show that 

defense counsel’s performance was deficient. Accordingly, his ineffective assistance of counsel 

claim fails. 

B. MOTION TO REMAND FOR RESENTENCING

Smith has also filed a motion to remand for resentencing in light of State v. Blake. The 

State concedes that remand for resentencing in light of Blake is appropriate. We grant Smith’s 

motion to remand for resentencing.

“[A] prior conviction which has been previously determined to have been 

unconstitutionally obtained or which is constitutionally invalid on its face may not be considered” 
No. 54459-8-II

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as part of a defendant’s offender score. State v. Ammons, 105 Wn.2d 175, 187-88, 713 P.2d 719, 

cert. denied, 479 U.S. 930 (1986). In Blake, our Supreme Court held that RCW 69.50.4013(1), 

the statute criminalizing simple possession, is unconstitutional. 197 Wn.2d at 186. Therefore, the 

statute is void. Id. at 195. Because RCW 69.50.4013(1) is void, Smith’s prior convictions for 

simple possession are unconstitutional on their face and should not be included in Smith’s offender 

score. Accordingly, we grant Smith’s motion to remand for resentencing.

We affirm Smith’s convictions but grant his motion to remand for resentencing.3

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 2.06.040, 

it is so ordered.

Lee, C.J.

We concur:

Maxa, J.

Sutton, J.

 

3

 Smith filed a motion to issue decision as soon as possible. As our decision is now filed, we deem 

the motion moot.