IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

STATE OFWASHINGTON, No. 78613-0-I Respondent, DIVISION ONE
v. UNPUBLISHED OPINION BRETTANTHONY COFER, Appellant. FILED: January 27, 2020 CHUN, J.

—Ajury convicted BrettAnthony Coferon four counts ofchild molestation. Coferseeks reversal, arguing ineffective assistance of counsel. He also challenges the trial court’s authorityto impose several conditions of community custody and a $200 criminal filing fee. We acceptthe State’s concessions that two ofthe conditions ofcommunity custody are unconstitutionally vague and the $200 fee should be stricken. We affirm the convictions but remand for correction of Cofer’sjudgment and sentence. I. BACKGROUND Based on allegations that Cofer inappropriately touched nine-year-old K.M. multiple times, the State charged Coferwith four counts offirst degree child molestation. Each countfurther alleged the aggravating factor ofan ongoing pattern ofsexual abuse ofthe same victim. Cofer pleaded not guilty and proceeded to trial.No. 78613-0-112 During opening statements at trial, Cofer’s counsel told thejurythat “[nb
one understands why [KM.] is making this accusation against Mr. Cofer” and that itwould see “varying degrees of inconsistency in the storythat [K.M.] tells you.” K.M.’s mothertestified about becoming homeless in August 2013 and leaving K.M. in the care of herformer boyfriend, Cofer.1 On direct examination, KM. testified aboutthe molestation.2 On cross examination, Cofer’s counsel elicited testimony highlighting inconsistencies between KM’s trial testimony and statements she gave to several others, including Detective Sergeant Darrin Wallace ofthe Grays Harbor County Sheriff’s Office, priorto trial. K.M.’s stepmothertestified about K.M.’s disclosure ofthe molestation in 2017 and taking K.M. to the authorities to reportthe abuse. Heather McLeod, a sexual assault nurse examiner (SANE), testified about the results of K.M.’s examination, and about circumstances in which patients may delay reporting of abuse events. Following the testimony ofthese witnesses, the State informed that it would be calling SergeantWallace to testify about prior consistent statements K.M. made to him regarding details ofthe molestation. The State argued that this testimonywas admissible under ER 801(d)(1). Cofer’s counsel did not objectto SergeantWallace’s testimony, explaining:

1 Coferand K.M.’s motherconceived a child who was agetwo in August2013. KM’s motheralso leftthis child in Cofer’s custody during her period of homelessness.

2 K.M. was age 13 atthe time oftrial.
2No. 78613-0-1/3 And, Your Honor, since basically what [the prosecutor] would be asking is essentially a repetition of my cross-examination of [K.M.], I don’t have an objection at this point. It’s basically going to be statements that I—Sorry. Basically, it would be statements that I’ve already gotten from [K.M.]
And sowe’re clear. Therewas three differentspecificareas I—I was talking about inconsistent statements. So one was with Sergeant Wallace. The other was with the SANE nurse. And the other was with Mr. Harrison. So it may havejust gotten a little muddled up in there. But, again, no objection. SergeantWallace then testified about K.M.’s description of how Cofer molested heryears earlier. In his own defense, Cofertestified that he was K.M.’s “dad from the time she was 4” years old and nevertouched her inappropriately. Thejury convicted Cofer as charged. The trial court sentenced Coferto a term oftotal confinement of225 months to life, lifetime community custody,
numerous conditions ofcommunity custody, and imposed a $200 criminal filing fee. Cofer appeals.3 II. DISCUSSION A. Ineffective Assistance of Counsel Cofer argues that his convictions should be reversed because he received ineffective assistance of counsel when his attorney agreed to the admission of

~ Before sentencing, Cofer moved fora newtrial on grounds that his defense counsel was ineffective forfailing to adequately challenge K.M.’s credibility and failing to furtherquestion K.M. aboutwhetherCoferwas circumcised. The trial court denied the motion, finding “defendant’s trial counsel’s decision to not present additional evidence regarding circumcision, but instead to focus on deficiencies in the State’s investigation, was a legitimate strategic choice.” Coferdoes not appeal the denial ofthe motion fora newtrial.
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K.M.’s statementsto SergeantWallace as substantive evidence. We disagree. The Sixth Amendment ofthe U.S. CONSTITUTION and article I, section 22 of the WASH. CoNsTITuTION guarantees effective assistance of counsel. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To prevail on a claim of ineffective assistance oftrial counsel, a defendant must prove both deficient performance and prejudice.4 State v. Jones, 183 Wn.2d 327, 339, 352 P.3d 776 (201 5). We need not address both prongs ofthe analysis ifthe defendant’s showing on one prong is insufficient. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). We review claims of ineffective assistance ofcounsel, which is
a mixed question of law and fact, de novo. Jones, 183 Wn.2d at 338-39. We begin with a strong presumption that counsel’s performance was effective. State v. Crier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). To rebutthis presumption, Cofer must establish the absence ofany “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)). We will notfind counsel ineffective based upon decisions concerning the defense theory ofthe
case ortrial tactics.5 See State v. Renfro, 96 Wn.2d 902, 909, 639 P.2d 737

~ Establishing deficient performance requires a showing that counsel’s representation fell belowan objective standard of reasonableness based on consideration ofall the circumstances. State v. Thomas, 109Wn.2d 222, 225-26, 743 P.2d 816 (1987). Prejudice suffices to support a claim of ineffective assistance of counsel when counsel’s errors are so serious as to deprivethe defendant ofafairtrial. Hendrickson, 129Wn.2d at 78.

~ “What mayseem important and favorable tothe defendant afterthe trial may during trial have appeared inconsequential ordamaging to his attorney.

. . [Tjherefore, the choice oftrial tactics, the action to betaken oravoided, and the methodologyto be employed must rest in the attorney’sjudgment.” State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967).
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(1982). Upon review, ifdefense counsel’s conduct can be considered a legitimate trial strategy ortactic, counsel’s performance is not deficient. Grier, 171 Wn.2d at 33. Cofer bears the burden ofestablishing deficient performance. Grier, 171 Wn.2d at42. Cofer now argues that his trial counsel ‘had no legitimate tactical basis not to objectto K.M.’s statements to SergeantWallace because theywere not admissible under ER 801(d)(1)(ii) and were highly damaging to the defense.” We disagree. The record makes clearthe tactical approach and trial strategy adopted by Cofer’s trial counsel. The defense theory throughouttrial focused on KM’s inconsistent account ofevents. On cross-examination, Cofer’s counsel highlighted inconsistencies between K.M.’s trial testimony and herstatements to SergeantWallace. Defense counsel did not objectto such statements, regardless oftheiradmissibility, because counsel saw no harm in the State eliciting testimonyfrom SergeantWallace thatwas identical to testimony KM. gave on cross-examination (regarding what she had told SergeantWallace). In closing arguments, Cofer’s counsel explained the defense theory by pointing to various inconsistencies in K.M.’s testimony and concluded by saying: “We don’t convict people on the basis ofone person’s words only. Especiallywhen they’re
so inconsistent as to notto be believed.” Because not objecting to K.M.’s statements to SergeantWallace was a legitimate trial tactic, we conclude Cofer’s counsel’s performance was not deficient. And because failure to prove eitherprong defeats an ineffective
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assistance of counsel claim, we hold that Cofer’s claim for ineffective assistance ofcounsel fails. We affirm Cofer’s convictions. B. Conditions of Community Custody Cofer next contends that the trial court erred by imposing conditions of community custodythat are unconstitutionally vague. [App.’s Br. at 20-25] Specifically, he challenges the following two conditions: 6. Do not frequent areas where minor children are known to congregate, as defined by the supervising Community Corrections Officer.
24. Based on eligibility, enter and successfully complete identified interventions to assist you to improve your skills, relationships, and abilityto stay crime free. A condition is unconstitutionally vague if itfails to (1) provide ordinary people fairwarning of proscribed conduct, and (2) have standards that are definite enough to protect against arbitrary enforcement. State v. Irwin, 191 Wn. App. 644, 652-55, 364 P.3d 830 (2015) (holding as unconstitutionally vague a condition that read: ‘Do notfrequent areas where minor children are known to congregate, as defined bythe supervising [community custody officer].”). Cofer asserts that condition 6 is unconstitutionally vague because it does not provide adequate notice ofwhat locations are prohibited, and that condition 24 is similarlyvague because it does not provide adequate notice ofwhat conduct is required. The State concedes each error. We accept each concession and remand forthe trial courtto strike these conditions.

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C. Criminal Filing Fee Cofer argues, and the State concedes, thatthe $200 criminal filing fee should be stricken from hisjudgment and sentence due to his indigence, statutory amendments, and State v. Ramirez, 191 Wn.2d 732, 746-50, 426 P.3d 714 (2018). We accept the State’s concessions and remand forthe trial courtto strike the filing fee from Cofer’sjudgment and sentence. Affirmed and remanded.

WE CONCUR:

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