FILED 

### COURT OF APPEALS DIVISION t 2015 FEB - 

### 3 

### MI 8: 56 STATE OF WASHINGTON IN THE COURT OF APPEALS OF THE STATE

# J F W INGT 1 N UTY
STATE OF WASHINGTON, DIVISION II
Respondent,

v. JOSHUA DAVID CHARLES RHOADES, Appellant. OE
No. 45083 -6 -II UNPUBLISHED OPINION

BJORGEN, A.C.J. — Joshua David Charles Rhoades appeals from his conviction and 

### exceptional sentence, following ajurytrial,for second degree assault. Rhoades arguesthat (1) the trial court'sjury instruction on an aggravating circumstance, different from that alleged in the information, violated his due process right to notice ofthe nature and cause ofthe accusation, and (2) the court' s recklessness instruction relieved the State of its burden on an essential element ofthe crime. Rhoades also submits a statement of additional grounds for review under RAP 10. 10, arguing that the trial court erred 

### by (3) denying him a continuance, (4) improperly 

### admitting gang evidence, and (5) allowing certain venire members to serve on thejury. Rhoades also argues in his statement ofadditional grounds that (6) he received ineffective assistance of counsel and (7) prosecutorial misconduct deprived him of a fair trial. 

### Because Rhoades did not receive constitutionally adequate notice ofthe specific 

### aggravating circumstance on which the State sought an exceptional sentence, we reverse the exceptional sentence and remand for resentencing within the standard range. We otherwise
affirm.No. 45083 -6 -II FACTS AND PROCEDURAL HISTORY The State charged Rhoades with second degree assault, based on conduct against Dustin 

### McLean, undertwo alternative prongs ofthe assault statute: that Rhoades intentionally assaulted 

### McLean and recklessly inflicted substantial bodily harm, and / orthat he assaulted McLean with a deadlyweapon. As an aggravating circumstance, the State alleged in the information that Rhoades " committed the offense to obtain or maintain his or her membership orto advance his 

### orherposition in the hierarchy ofan organization, association, or identifiable group, contrary to RCW 9. 94A.535( 3)( s)." Clerk' s Papers ( CP) at 2. I. PRETRIAL PROCEEDINGS Priorto trial, the State moved to admit "evidence relating to [Rhoades' s] gang affiliation ... as proof of motive" under ER 404(b). CP at 9 -13. The trial court granted the 

### State's motion in part, ruling evidence ofRhoades' s gang affiliation admissible, as well as 

### e]xperttestimony regarding gang culture and background relating to LVL, " 1 but excluding e]vidence specifically related to defendant' s prior bad acts in association with his gang
affiliation." CP at 20 - 21; Verbatim Report of Proceedings (VRP) (Apr. 3, 2013) at 6 -10. 

### At a hearing one week before trial began, Rhoades declined to confirm the trial date and 

### requested a continuance on the grounds that he had not had the opportunityto interview McLean, 

### hadjust learned that one ofRhoades's associates would testify against him as part ofa plea deal, and hadjust received additional police reports concerning the case. The court denied the request to postpone the trial, but ordered the State to make McLean available for an interview.

1 LVL are the initials for " Lil Valley Lokotes," 

### the gang to which the State alleged Rhoades belonged. 2No. 45083 - 6 -II 

### Rhoades again moved for a continuance immediately before voir dire, stating that, in light ofhis interview with McLean, Rhoades wished to obtain the testimony of an additional witness, 

### Ashley Huner.2 The court denied the motion on the ground that delaywould prejudice the State because some of its witnesses were in protective custody. 

### During voir dire, one member ofthe venire acknowledged knowing the investigating
officer " well enough to have an opinion at least about her truthfulness." 1 VRP at 39. When 

### asked ifhe or she could "weigh [the officer's] testimonyjust as you could weigh anybody else' s testimony," the venire member replied, " I don' t really know." 1 VRP at 39. When the trial court
asked whether the member " would .. try to do that," the venire member replied, " Yeah." 1 VRP 

### at 39. Another member ofthe venire acknowledged having had apersonal experience " as'a victim, witness, or as a defendant with a similar or related type of case," but answered " no" when
asked whether that experience would affect his or her consideration of Rhoades' s case. 1 VRP at 

### 40. Both ofthese individuals ultimately served asjurors.3 II. EVIDENCE AT TRIAL At trial, the State presented evidence that Rhoades assaulted McLean, that Rhoades identified himself as " Spooker," an " LVL," and had asked if McLean were affiliated with a rival gang, which McLean denied. 

### 1 VRP at 122 - 23; 2 VRP at 337 -

38. Holding a folding knife in his fist with the blade closed, Rhoades then punched and kicked McLean several times, knocking 

### him to the ground. One ofMcLean' s friends and two people accompanying Rhoadesjoined the fight, which lasted less than a minute.


### 2 The State had included Huner,aparticipant in the fight giving riseto the charge against Rhoades, on its witness list, but had been unable to locate her. 3 The record does not disclose whether Rhoades challenged either ofthesejurors for cause. 3No. 45083 -6 -II 

### The police soon stopped the car carrying Rhoades and his friends and arrested Rhoades. Although Rhoades had no weapons, an officerfound afolding pocket knife with a blade three and one -

quarter inches long4 on one ofthe other people in the car. McLean identified it as the same knife Rhoades held in his fist during the assault. The defense called no witnesses. After offering one photo showing an injury Rhoades 

### allegedly sustained during the fight,which the trial court admitted by stipulation,the defense
rested. III. JURY INSTRUCTIONS AND CLOSING ARGUMENT 

### The court instructed thejurors that ifthey found Rhoades guilty ofsecond degree assault, they must also decide whetherhe committed the offense with the intent to directly or indirectly cause any benefit, aggrandizement, gain, profit,or other advantage to orfor a criminal street gang, its reputation, influence, or membership. 

### CP at 50. Thejury received a corresponding ' special verdict form. Also in its instructions to thejury,the trial court defined "recklessness" as follows: A person is reckless or acts recklessly when he or she knows of and 

### disregards a substantial risk that a wrongful act may occur and this disregard is a gross deviation from conduct that a reasonable person would exercise in the same situation. CP at 44. The court also submitted a special verdict form asking whether Rhoades was armed 

### with adeadlyweapon during the commission ofthe offense. Rhoades did not object to any of the instructions given or to the special verdict forms used. 

### Defense counsel argued in closing thatthejury should acquit Rhoades ofsecond degree assault because the State had proved neitherthat Rhoades had been armed with a deadlyweapon 

### 4 Forpurposes ofthe deadlyweapon enhancement,adeadlyweapon includes any knife having a blade longer than three inches. RCW 9.94A.825. 4No. 45083 -6 -II



### during the attacknorthat McLean suffered substantial bodilyharm. Defense counsel also argued thatthejury should notfind the aggravating circumstance present because the State had failed to prove that Rhoades believed the crime would elevate his status in LVL. IV. VERDICT AND SENTENCE 

### Thejury returned a guilty verdict,and answered "yes" to both special verdict form questions. CP at 61 -64. The court enteredjudgment on the verdict and imposed an exceptional 

### sentence of 110 months' confinement and 10 months' community custody. Rhoades timely appeals. ANALYSIS I. THE LACK OF ADEQUATE NOTICE OF THE AGGRAVATING CIRCUMSTANCE ON WHICH THE JURY WAS INSTRUCTED Rhoades claims that the trial court violated his right to adequate notice ofthe nature and cause ofthe accusation against him. This is so, Rhoades contends, because ( 1) the court 

### submitted to thejury an aggravating circumstance instruction,that Rhoades committed the crime
with the intent to benefit a criminal street gangs ( "gang aggravator "), which differed from the circumstance alleged in the information, that Rhoades committed the crime to obtain or maintain membership or advance his position in an identifiable group;

### 6 and (2) the State did notnotify him before trial that it intended to seek an exceptional sentence based on the gang aggravator. Rhoades maintains that this amounted to a manifest constitutional errorthat he may raise forthe first time on appeal under RAP 2. 5( a)( 3). Rhoades is correct in these contentions.

RCW 9. 94A.535( 3)( aa). 

### 6 RCW 9.94A.535(3)( s). 5No. 45083 -6 -II

A. 

### Manifest ErrorAffecting a Constitutional Right

RAP 2.5 allows appellate courts to refuse to address claims of error not raised in the trial court,with the exception that RAP 2.5( a)(3) allows a party to raise a " manifest error affecting a
constitutional right" for the first time on appeal. In applying RAP 2.5( a)( 3), we must first decide 

### whether, assuming the truth ofthe appellant' s allegations, the error "implicates a constitutional interest as compared to another form oftrial error," and if so, whether the error is " manifest." State v. O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 (2009).

The threshold test under RAP 2. 5( a)( 3) often overlaps with the analysis ofthe merits of the claimed error. See State v. Walsh, 143 Wn.2d 1, 8, 17 P. 3d 591 ( 2001) ( stating that in 

### determining whether an error is manifest, the appellate court "previews the merits ofthe claimed
constitutional error to determine whether the argument is 

### likely to succeed "). A " manifest" error
results in " actual prejudice," 

### namely "practical and identifiable consequences" attrial. State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 ( 2011) ( internal quotation marks omitted) (quoting O' Hara, 167 Wn.2d at 99).

In O' Hara, however, our Supreme Court clarified that "to ensure the actual prejudice and harmless error analyses are separate, the focus ofthe actual prejudice must be on whether the

error is so obvious on the record that the error warrants appellate review." 167 Wn.2d at 99 -100. Thus, to determine whether an error is practical and identifiable, the appellate court must place itself in the shoes ofthe trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the error." O' Hara, 167 Wn.2d at 100.

The Washington and federal constitutions entitle criminal defendants to adequate notice 

### ofthe nature and cause ofthe accusation, so thatthey may prepare a defense. State v. Siers, 174 Wn.2d 269, 277, 274 P. 3d 358 (2012). To comport with these requirements, the defendant must

6No. 45083 -6 -II

receive notice that the State seeks to prove an aggravating circumstance priorto the . proceeding in which the State seeks to establish that circumstance. Siers, 174 Wn.2d at 277. The Sentencing Reform Act of 1981 ( SRA), chapter 9.94A RCW, specifies that the State may give
notice that it intends to seek a sentence above the standard range "[ a]t any time prior to trial or entry of the guilty plea," and that "[ t]he notice shall state aggravating circumstances upon which the requested sentence will be based." RCW 9. 94A.537( 1). As discussed, the record here 

### establishes that attrial the State relied on an aggravating circumstance differentfrom that alleged in the information. The alleged error plainly "affect[s] a constitutional right" within the meaning of RAP 2. 5( a)( 3). 

### RCW 9.94A.537(1) required the State to notify Rhoades before trial that itwould seek an exceptional sentence based on the gang aggravator. The Siers decision clearly articulated this as

a requirement prior to Rhoades' s trial. 174 Wn.2d at 277. The record here contains no evidence that the State gave Rhoades notice before trial of its intent to seek an exceptional sentence based on the RCW 9.94A.535(3)( aa) gang aggravator. Additionally,the record contains no evidence that Rhoades waived his right to receive such notice, and we may not presume waiver of important constitutional rights from a silent record. See State v. Rinier, 93 Wn.2d 309, 315, 609 P.2d 1358 ( 1980); State v. Williams, 87 Wn.2d 916, 921, 557 P. 2d 1311 ( 1976); State v. McFarland, 84 Wn.2d 391, 401, 526 P.2d 361 ( 1974) ( Stafford, J. dissenting). Thus, the record makes the alleged error sufficiently obvious to warrant appellate review
since it establishes that, " given what the trial court knew at that time, the court could have corrected the error." O' Hara, 167 Wn.2d at 100. The error Rhoades alleges affects a
constitutional right and is " manifest" within the meaning of RAP 2.5( a)( 3). We turn to the merits ofthe claim.

7No. 45083 -6 -II

B. The Right to Adequate Notice ofthe Charges

We review de novo a claim that a criminal defendant received inadequate notice ofthe nature and cause ofthe accusation. Siers, 174 Wn.2d at 273 -74. It is well established that all
essential elements of a crime must be included in a charging document "` to give notice to an
accused ofthe nature of the crime that he or she must be prepared to defend against. ' State v. Zillyette, 178 Wn.2d 153, 158 -59, 307 P. 3d 712 (2013) ( 

### quoting State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 ( 1991)). 

### Our Supreme Court has held, though,that "an aggravating factor is not the functional equivalent of an essential element and need not be charged in the information." Siers, 174 Wn.2d at 282. 

### The Siers court instead held that "so long as adefendant receives constitutionally adequate notice ... , ` 

### the absence ofan allegation ofaggravating circumstances in the information [does] not violate [the defendant' s] rights under ' the federal and Washington 

### constitutions. Siers, 174 Wn.2d at 276 - 77 (quoting State v. Powell, 167 Wn.2d 672, 687, 223 P. 3d 493 ( 2009) ( plurality opinion)). To receive adequate notice ofan aggravating circumstance, 

### the court heldthatthe defendant need only "receive notice priorto the proceeding in which the State seeks to prove those circumstances to ajury." 

### Siers, 174 Wn.2d at 277 (citing State v. Schaffer, 120 Wn.2d 616, 620, 845 P. 2d 281 ( 1993)). 

### Because " Siers' s attorney acknowledged that the State had provided notice to Siers prior to trial that it intended to prove an aggravator that could result in an exceptional sentence," the court reinstated Siers' s conviction. Siers, 174 Wn.2d at 277, 282 -83.

Thus, under Siers, 174 Wn.2d at 276 - 77, we must reject Rhoades' s argument that the trial 

### court erred in submitting the gang aggravator to thejury because the State did not include it in the information. The facts in Siers make clear, however,that the State had notified Siers prior to

8No. 45083 - 6 -II 

### trial ofits intentto rely on the same aggravating circumstance that the trial court actually
submitted to thejury. Siers, 174 Wn.2d at 272 - 73 & n. 1. The question remains, then, whether the State' s inclusion in the information ofa circumstance otherthan the gang aggravator, 

### combined with its pretrial motion to introduce evidence ofRhoades' s gang affiliation forthe purpose ofestablishing motive, gave Rhoades constitutionally sufficient notice thatthe State would seek an exceptional sentence based on the gang aggravator. The notice requirement serves to ensure that criminal defendants have the opportunity to prepare an adequate defense against the State' s allegation ofan aggravating circumstance. Siers, 174 Wn.2d at 277. Although the two aggravators at issue share certain similarities, the manner 

### in which one might defend againstthem could differ substantially. Ofgreatest significance here, the aggravator alleged in the information focuses on benefit to the defendant: whether in 

### committing the crime the defendant aimed to " obtain or maintain his or her membership orto advance his or herposition in the hierarchy ofan organization, association, or identifiable group." RCW 9. 94A.535( 3)( s). 

### The gang aggravator, in contrast,focuses on benefitto the gang: whetherthe defendant intended "to directly or indirectlycause any benefit, aggrandizement, gain, profit, or other advantage to or for a criminal street gang ... , its reputation, influence, or membership." RCW 9. 94A.535( 3)( aa). Evidence that a criminal act did not tend to improve the defendant' s status in a gang 

### would not necessarily bear on whetherthe act might have benefitted the gang itself,and vice versa. On its face, then, the substitution ofone aggravator for the other resulted in inadequate 

### notice that likely prejudiced the defendant' s abilityto prepare a defense. That Rhoades knewthe State intended to introduce evidence that his gang affiliation
motivated the attack on McLean does not cure this prejudice. While establishing motive is aNo. 45083 -6 -I1



### proper purpose forthe admission ofgang evidence, such motive is not actually an element of second degree assault. State v. Yarbrough, 151 Wn.App. 66, 83 -87, 210 P.3d 1029 (2009). 

### Here, the defense strategy focused on disputing whetherthe defendantwas armed with a deadly weapon or inflicted substantial bodily harm. Given that strategy, and without any other 

### indication thatthe gang aggravatorwould be pursued, defense counsel may well have seen little point in contesting whether the attackwas gang motivated. Indeed, defense counsel plainly sought in cross examination and closing argument to dispute thatthe attacktended to elevate Rhoades' s status in LVL,consistently with the charged aggravator; but never disputed that Rhoades was a member ofthe gang orthat he intended the attackto benefit it. 

### Forthese reasons, Rhoades' s knowledge thatthe State would introduce evidence ofgang affiliation did not give him notice that the State would pursue an aggravator other than that charged in the information. For these reasons also, that lack of notice prejudiced the preparation of Rhoades' s defense.

Because Rhoades did not receive adequate notice prior to trial that the State intended to 

### seek an exceptional sentence based on the gang aggravator, and the lack ofnotice prejudiced him in preparing a defense, the submission ofthat aggravatorto thejury amounted to constitutional error. See Siers, 174 Wn.2d at 276 - 77. The State, which bears the burden ofproving constitutional error harmless beyond a reasonable doubt, State v. Coristine, 177 Wn.2d 370, 380, 300 P.3d 400 (2013), presents no harmless error argument in its brief. Regardless, this type of error is not susceptible to constitutional harmless error analysis. State v. Recuenco, 163 Wn.2d 428, 441 -42, 180 P. 3d 1276 (2008). We reverse Rhoades' s exceptional sentence.

10No. 45083 -6 -II II. THE TRIAL COURT' S RECKLESSNESS INSTRUCTION 

### Rhoades argues thatthe trial court'sjury instruction defining recklessness, which informed the

### jury that ‘" [

### a] person is reckless or acts recklessly when he or she knows ofand disregards a substantial risk that a wrongful act may occur, ' relieved the State ofthe burden of 

### proving an essential element ofsecond degree assault. Br. ofAppellant at 12 -21 ( quoting CP at 44) ( emphasis added). 

### That is, thejury could have relied on Rhoades' s disregard ofa substantial 

### riskthat anywrongful act might occur, instead ofthe actual prohibited result, substantial bodily harm. We disagree.

In State v. Johnson, our Supreme Court addressed the exact question presented here: 

### Taken in their entirety, the instructions in this case were sufficient. The "to convict" instruction properly laid out the elements of the crime. It identified the wrongful act contemplated by Johnson as " substantial 

### bodily harm." 

### Separately providing a generic definition of "reckless" did not relieve the State of its burden 

### ofproof. The "to convict" instructions are the primary "yardstick" thejury uses to measure culpability, and here theywere accurate. 180 Wn.2d 295, 306, 325 P.3d 135 ( 2014). Here, the to-convict instruction also correctly 

### identified substantial bodily harm as the prohibited result. UnderJohnson, the instructions were
not erroneous. III. DENIAL OF RHOADES' S REQUESTS FOR A CONTINUANCE

In his statement of additional grounds (SAG), Rhoades contends that the trial court erred in denying two defense requests for a continuance. Specifically, Rhoades argues that the error 

### denied him the rightto present a defense because it prevented his attorney from locating a key 

### witness, properly interviewing the State' s witnesses, and otherwise adequately preparing fortrial. Because the trial court based its decision on proper grounds, supported bythe record, and Rhoades fails to make a sufficient showing ofprejudice, we reject the claim.

11No. 45083 -6 -II We reviewthe denial of a motion for continuance under the abuse - of-discretion standard. State v. Downing, 151 Wn.2d 265, 272, 87 P. 3d 1169 (2004). To prevail on such a claim, a party
must " make[] ` a clear showing ' that the trial court' s exercise of discretion was "' manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. "' 

### Downing, 151 Wn.2d at 272 -

73 ( quoting State ex rel. Carroll v.Junker, 79 Wn.2d 12, 26, 482 P.2d 775 1971)).

### The factors atrial court may consider in ruling on a motion for a continuance include surprise, diligence, redundancy, due process, materiality, and maintenance oforderly procedure." 

### Downing, 151 Wn.2d at 273 (citing State v. Eller,84 Wn.2d 90, 95, 524 P.2d 242 1974)). 

### A party establishes thatthe trial court abused its discretion in denying a continuance motion by showing "that the accused has been prejudiced and / orthatthe result ofthe trial would 

### likely have been different had the continuance not been denied." Eller, 84 Wn.2d at 95. 

### T]here are no mechanical tests for deciding when the denial ofa continuance violates due
process, inhibits a defense, or conceivably projects a different result," but "the answer must be found in the circumstances present in the particular case." Eller, 84 Wn.2d at 96. Rhoades first requested a continuance at the trial confirmation hearing, one week before 

### trial commenced. The State acknowledged atthe hearing that it had not given McLean's contact information to defense counsel, because it wanted to protect McLean from alleged attempts at 

### intimidation. Defense counsel also represented at the trial confirmation hearing that he had only 

### recently learned that awitness, one ofthe participants in the fightwho had been in the car with Rhoades, would testify forthe State as part ofa plea deal. Rhoades' s attorney stated that he had not had an opportunity to interviewthe witness, who was represented by counsel, and had not seen the plea deal.

12No. 45083 - 6 -II 

### Atthe same hearing,the defense attorney also stated that "there's some new police reports that have come in I haven' t had a chance to review it, came in yesterday." VRP (April 18, 2013) at 2. The court denied the request for a continuance, ordered Rhoades taken into 

### custody, and confirmed the trial date, but also ordered the State to make McLean and the other witness available for interviews. 

### On the first day oftrial, Rhoades asked again for a continuance. Based on the interview with McLean, Rhoades wished to call an additional witness, Huner, another participant in the fight. The State had included Huner on its witness list, but never managed to locate her. Defense counsel stated that he had not sought to contact Huner because he expected her testimony to " cut[] both ways," but that, given what he had heard from McLean, Rhoades thought Huner' s testimony would do more good for the defense than harm. 1 VRP at 7 -8.

The prosecutor acknowledged that Huner qualified as a material witness, but opposed the 

### motion on the grounds that (1) Rhoades would have no better chance oflocating herthan the State, which had devoted considerable resources to the effort without avail, and (2) a continuance would prejudice the State because its witnesses were "terrified" of Rhoades and " a lot oftimes this is used as a strategy to continue things so that witnesses disappear." 1 VRP at 9 -11. The 

### court denied the motion forthe reasons articulated by the prosecutor, pointing outthat certain
witnesses f

or the State ... are in protective custody." 1 VRP at 13. To decide whether denial ofthe continuances in these circumstances was an abuse of discretion, we turn first to State v. Oughton, 26 Wn.App. 74, 612 P.2d 812 ( 1980). There, the State learned during trial that a witness would give additional incriminating testimony not disclosed to the defense, but did not inform defense counsel. Oughton, 26 Wn.App. at 78. 

### Upon hearing this testimony, Oughton requested a continuance for the purpose ofobtaining
13No. 45083 -6 -II



### evidence to rebut it,which the court denied. Oughton, 26 Wn.App. at 78. Even though (1) the
undisclosed evidence did not 

### directly implicate Oughton, (2) Oughton never articulated what evidence he hoped to offer in rebuttal, and (3) his defense was implausible at best, we held that the trial court had abused its discretion in denying the requested continuance and that reversal

was warranted. Oughton, 26 Wn.App. at 75, 76, 79 -80, 85. We noted that, " no matter how 

### incredible a given defendant' s story may sound, due process entitles him to a fair chance to get 

### his version ofthe events before thejury so thatthey may make an unprejudiced decision." Oughton, 26 Wn.App. at 75.

Rhoades' s argument would appear at first glance to have some force under Oughton 

### because the perceived need for Huner's testimony apparently did not arise until the State made McLean available for an interview. A number offacts distinguish this case from Oughton, however. 

### Perhaps most importantly, Rhoades does not showthatthe denial ofa continuance prejudiced him. Rhoades did not explain how he could have located Huner when the State could
not and acknowledged that hertestimony would have " cut[] both ways." 1 VRP at 8. Since 

### Hunerwas apparently also a suspect and likelyfaced charges, it is doubtful at bestthat Rhoades could have secured hertestimony. 

### Further, delay would be more prejudicial to the administration ofjustice here than it was 

### in Oughton. Nothing indicates that witnesses were being held in custody in that case, norwere there allegations there that the defendant or his associates were seeking to intimidate witnesses, as the State alleged here. In denying the continuances, the trial court relied on the sort ofconsiderations approved 

### by Downing, 151 Wn.2d at 273, forthat purpose. Further, Rhoades fails to showthatthe denial

14No. 45083 -6 -II

of a continuance prejudiced his defense, a central consideration in Eller, 84 Wn.2d at 95 -96. 

### Thus, the trial court did not abuse its discretion in denying the continuances. IV. ADMISSION OF GANG EVIDENCE Rhoades also contends that the trial court erred in permitting Detective Patrick Fitzgerald 

### to testify concerning gangs generally and Rhoades' s gang affiliation in particular. Specifically, Rhoades argues that, because the trial court refused to rule that Fitzgerald qualified as an expert 

### on street gangs, much ofthe detective' s testimony concerning gangs in general was improper. 

### Rhoades furtherargues that Fitzgerald'stestimony exceeded the scope ofthetrial court's ruling on the State' s motion in limine and invaded the province ofthejury. As noted, in its order on the State' s motion to admit gang evidence, the trial court 

### permitted evidence ofRhoades' s gang affiliation offered to show motive, intent, and / or res 

### gestae, as well as expert testimony regarding gang culture and background relating to LVL. The 

### order prohibited evidence specifically related to Rhoades' s prior bad acts in association with his gang affiliation. 

### After inquiring into Fitzgerald' s gang - related training and experience at trial,the State
asked the court to rule that he qualified as " an expert in the area of street gangs." 2 VRP at 334. The defense objected as follows: " I think that' s improper, so I' ll object to that. But I' m not opposed to what he has to say." 2 VRP at 334. The trial court responded, " You can just askthe
witness your questions. I' m not going to make that ruling." 2 VRP at 334. Fitzgerald proceeded 

### to describe, without objection, the culture and activities ofgangs generally and LVL in particular.

The State also asked whether Fitzgerald was familiar with Rhoades in particular, and 

### Fitzgerald replied affirmatively. Fitzgerald proceeded to testify to his knowledge ofRhoades' s
15No. 45083 -6 -II



### affiliation with LVL, including Rhoades' s allegedly gang-related tattoos. Finally, Fitzgerald
gave the opinion that " the assault on Mr. McLean ... was in association with a gang ... [ 

### g]iven the [ verbal] interaction that transpired before the actual assault." 2 VRP at 344. The defense did not object to any ofthis testimony.

Rhoades does not show that he is entitled to raise this issue for the first time on appeal. 

### Because the First Amendment right ofassociation protects gang affiliation,just as it does membership in a church, social club, or community organization," Rhoades has at least a plausible argument that the alleged error affects a constitutional right within the meaning ofRAP 2. 5( a). State v. Scott, 151 Wn.App. 520, 526, 213 P. 3d 71 ( 2009) (

### citing Dawson v. Delaware, 503 U.S. 159, 112 S. Ct. 1093, 117 L. Ed. 2d 309 ( 1992)). 

### Rhoades points to nothing in the record, however, establishing that any error occurred, let alone " manifest" error, as RAP 2. 5( a)( 3) would require. Although Washington courts recognize that gang affiliation evidence inherently poses a 

### riskofunfair prejudice, courts may nonetheless properly admit itto show motive or intentwhere the proponent establishes " a nexus between the crime and the gang. "

### 7 State v. Embry, 171 Wn. App. 714, 731 -32, 287 P. 3d 648 ( 2012), review denied, 177 Wn.2d 1005 ( 2013); accord 

### Yarbrough, 151 Wn.App. at 81 -89; Scott, 151 Wn.App. at 526 - 29. Thus, in orderto admit such evidence, the trial court must

1) find 

### by a preponderance of the evidence that 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 ofthe crime charged; and (4) weigh the probative value against the prejudicial effect. 

### 7 Because aggravating circumstances that support a sentence beyond the standard range arethe functional equivalent ofelements ofa greater crime, Ring v.Arizona, 536 U.S. 584, 604 - 05, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), Blakely v. Washington, 542 U.S. 296, 304 - 05, 124 S. Ct. 2531, 159 L. Ed. 2d 403 ( 2004), 

### this nexus plainly exists where the State alleges a gang aggravator. ER 401. 16No. 45083 -6 -II



### Embry, 171 Wn.App. at 732. We will not reverse atrial court's ruling under " ER 404(b) .. . absent a manifest abuse of discretion such that no reasonable judge would have ruled as the trial
court did." State v. Mason, 160 Wn.2d 910, 933 -34, 162 P. 3d 396 (2007). 

### Here, the trial court held a hearing on the matter and concluded that, based on Rhoades' s statements to McLean .

atthe beginning ofthe fight,the evidence was admissible and offered for proper purposes. The evidence plainly had some tendency to make more likelythe existence ofa fact of consequence to the determination ofthe action, and was thus relevant. ER 401. The court explicitly considered the risk ofunfair prejudice and concluded that the probative value of 

### the gang evidence outweighed it,nonetheless excluding evidence ofspecific "prior bad acts in
association with his gang affiliation." CP at 20. Fitzgerald's testimony generally conformed to the trial court' s ruling. 

### To the extentthat certain testimony regarding Rhoades' s gang membership may have exceeded the scope ofthe court' s order, any error is not "so obvious on the record thatthe error
warrants appellate review." O' Hara, 167 Wn.2d at 99 -100. That is, " given what the trial court knew at that time," it is not reasonable to expect the court to have corrected any such error absent atimely and specific objection. O' Hara, 167 Wn.2d at 100. 

### Thus, even assuming Rhoades raises an error trulyofconstitutional magnitude, it did not have " practical and identifiable" consequences at trial as articulated bythe O' Hara court, 167 Wn.2d at 99, and would therefore not qualify as " manifest" within the meaning ofRAP 2. 5( a)( 3). We decline to address the issue further.

17No. 45083 -6 -II V. JUROR BIAS 

### Rhoades contends thatthe trial court erred in allowing two venire members to serve on 

### thejury. Because the record does not establish whether Rhoades challenged eitherjurorfor cause, we decline to reach the claim. 

### One ofthe allegedly biasedjurors knew one ofthe investigating officers and the other juror acknowledged having had a personal experience with a similar or related crime. The court sought to rehabilitate the firstjuror as follows:

THE COURT: Anything aboutthat acquaintanceship that would cause you to place any more weight or any less weight on her testimony? Would that 

### impact you in any way?

JUROR NO. 19: I think it would. You know, I know her well enough to have an opinion at least about her truthfulness or, you know... .

THE COURT: 

### All right. Is that something that you could bring into 

### the mix, you could weigh that and weigh her testimony just as you could weigh anybody else' s testimony?

JUROR NO. 19: 

### I don't really know. THE COURT: 

### I' ll askyou this: would you tryto do that? JUROR NO. 19: Yeah. 1 VRP at 39. 

### The court also asked the secondjuror ifanything aboutthejuror's personal experience with a related crime would affect his or her consideration ofthe case, to which the juror replied, " No, sir." 1 VRP at 40.

The record does not disclose whether Rhoades challenged eitherjuror for cause. In State

v. Reid, we held that "[ a] party accepting ajuror without exercising its available challenges
cannot later challenge thatjuror' s inclusion." 

### 40 Wn.App. 319, 322, 698 P.2d 588 ( 1985) citing State v. Jahns, 61 Wash. 636, 112 P. 747 ( 1911)). Thus, we cannot reach the challenges 

### to eitherjurorwithout delving into matters outside the record before us. We therefore decline to address them further. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 ( 1995).

18No. 45083 -6 -II VI. INEFFECTIVE ASSISTANCE OF COUNSEL 

### Rhoades further contends that his trial attorney rendered ineffective assistance, depriving 

### Rhoades ofhis rightto counsel. Specifically, Rhoades argues that defense counsel' s performance was deficient because the attorney (1) failed to interview witnesses, maintain communication with Rhoades, or otherwise conduct an adequate pretrial investigation, (2) did
not make an opening statement, (3) failed to request an instruction on third degree assault as an included offense, (4) referred to Rhoades by his alleged gang moniker during the trial, (5) failed to objectto the State' s request for an instruction on accomplice liability, and (6) represented 

### Rhoades despite the factthe attorney, a former Lewis County Deputy Prosecutor, previously prosecuted other alleged LVL members and represented the State in a trial at which McLean also 

### testified. Regarding the sentencing hearing, Rhoades further contends that his attorney (7) called

no witnesses, (

### 8) failed to argue that Rhoades did not have the abilityto pay legal financial obligations, (9) " 

### barely argued for the low range," 

### and ( 10) requested $2,400 in attorney fees 

### despite having done little or no trial preparation. SAG at 8 -9. We review claims ofineffective assistance de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 (2009). To prevail on such a claim, a defendant must show both deficient 

### performance by defense counsel and prejudice caused bythe deficiency. State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 (2004). 

### Courts apply "a strong presumption that defense
counsel' s conduct is not deficient." Reichenbach, 153 Wn.2d at 130. A defendant may rebut 

### that presumption by showing "no conceivable legitimate tactic explaining counsel' s performance." Reichenbach, 153 Wn.2d at 130. 

### Establishing prejudice requires thatthe defendant show a reasonable possibility thatthe 

### outcome ofthe proceeding would have differed absent counsel' s purportedly deficient conduct.
19No. 45083 - 6 -II 

### Reichenbach, 153 Wn.2d at 130. A "reasonable probability" in this context is one " sufficient to
undermine confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). 

### Rhoades' s arguments concerning his attorney's alleged conflicts ofinterest and lack of trial preparation depend on matters outside the record. We therefore decline to reach them. McFarland, 127 Wn.2d at 335. 

### The record does reveal that defense counsel continuously referred to Rhoades as Spooker" in the presence ofthejurywhile cross - examining McLean. 1 VRP at 138, 140, 144, 146, 149 -150, 161, 164 -166, 171. Given that McLean also repeatedly referred to Rhoades by that name, and the State called several other witnesses who also testified to Rhoades' s alias, this was a conceivably legitimate tactic to "take the sting out" ofthe alleged gang moniker. 

### The record discloses that Rhoades' s attorney did not give an opening statement. Our Supreme Court has held, however, that defense counsel' s waiver ofopening statement does not constitute deficient performance, even in a capital trial. In re Pers. Restraint ofDavis, 152 Wn.2d 647, 715, 101 P. 3d 1 ( 2004).

The record also shows that defense counsel did not object to the State' s request for an 

### accomplice liability instruction. As Rhoades' s attorney noted during thejury instruction discussion, the evidence showed thattwo other people from the car carrying Rhoades also 

### participated in the fight, creating an adequate basis for such an instruction. Further, courts do not 

### consider accomplice liability an element ofor alternative means ofcommitting a crime and it thus need not appear in the information. State v. Teal, 117 Wn.App. 831, 838, 73 P.3d 402 2003). Forthese reasons, the trial courtwould surely have overruled an objection to the 

### requested accomplice liability instruction. Thus, his attorney' s failure to object was not
20No. 45083 -6 -II



### unreasonable, and Rhoades could not show prejudice in any event. See McFarland, 127 Wn.2d at 337 n.4. The record supports Rhoades' s allegation that his attorney did not request an instruction on third degree assault as an included offense, but instead requested only a fourth degree assault instruction,which instruction the court gave without objection. As an initial matter, this may well have qualified as a legitimate tactical decision. See State v. Grier, 171 Wn.2d 17; 44 - 45, 246 P. 3d 1260 (2011) ( 

### holding that failure to request included-offense instruction did not necessarily establish deficient performance and compiling cases). 

### More importantly, Rhoades was not entitled to such an instruction. To create a dutyto instruct thejury on an included offense, the evidence must raise an inference that the defendant committed onlythe included offense and notthe charged offense. State v. Fernandez-Medina, 141 Wn.2d 448, 455 -56, 6 P. 3d 1150 (2000); State v. Workman, 90 Wn.2d 443, 447 - 49, 584 P.2d 382 ( 1978). Thus, to convict Rhoades ofthird degree assault under the facts presented here, the 

### jury would needed to have found that he acted only with criminal negligence, not intent. RCW 9A.36.031( d), ( f).All the witnesses to the fighttestified that Rhoades intentionally punched and 

### kicked McLean, so there was no evidence giving rise to a reasonable inference that Rhoades 

### acted onlywith criminal negligence. Defense counsel did not perform deficiently by failing to request an instruction to which Rhoades was not entitled. 

### The record further establishes that Rhoades' s attorney did not call witnesses atthe 

### sentencing hearing or argue that Rhoades would be unable to pay legal financial obligations. 

### The decision whether to call witnesses is generally recognized as a matter oftrial strategy left to the discretion of defense counsel, American Bar Association, Standardsfor Criminal Justice: Defense Function, std. 4-5. 2(b), at 200 (3d ed. 1993), and Rhoades does not explain what

21No. 45083 -6 -II .



### testimony his attorney should have offered orwhy. The trial courtfound that Rhoades had the 

### abilityto pay the legal financial obligations "through employment in [the] Department of Corrections." 

### VRP (July 10, 2013) at 472. Rhoades points to nothing in the record that his attorney could have used to undermine this finding. Since Rhoades is 34 years old, and would appear from the facts ofthis case to be able-bodied, the record adequately supports the court's 

### finding. Rhoades fails to make a sufficient showing fromthe record on reviewthat counsel' s performance was deficient orthat any alleged deficiency was prejudicial. His claims of ineffective assistance therefore fail. VII. PROSECUTORIAL MISCONDUCT Rhoades contends that prosecutorial misconduct deprived him of a fair trial. Specifically, Rhoades contends that the prosecutor ( 1) failed to make McLean available for an interview until
ordered to do so shortly before trial, (2) improperly instructedjail staffto suspend all of 

### Rhoades' s phone privileges, preventing him from contacting his attorney during a critical stage oftrial preparation, and (3) failed to disclose that one ofthe State' s witnesses testified in exchange for a plea bargain. Because the merit of each ofthese contentions depends on matters outside the record, we decline to address them. McFarland, 127 Wn.2d at 335. CONCLUSION The State did not provide constitutionally sufficient notice ofits intent to seek an exceptional sentence based on the RCW 9.94A.535(3)( aa) gang aggravator. Therefore, we reverse Rhoades' s exceptional sentence and remand for resentencing within the standard range.

22No. 45083 -6 -II

We reject Rhoades' s other claims and otherwise affirm. 

### A majority ofthe panel having determined thatthis 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.

We concur:

23 

# A.c.

# X