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## COURT OFAPPEALS I V! , 0.t,, TT 

### 20114 

### JAN S 

### AM 9: 56 S i 4; S 3P, 6Y. E



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 43789 - 9 -II Respondent, V. CARL DEMOND LEE, UNPUBLISHED OPINION Appellant. JOHANSON, J. — 

### Carl Demond Lee appeals hisjury trial convictions for two counts of
second degree assault and one count of harassment. Lee argues that his trial counsel provided 

### ineffective assistance ofcounsel in (1) failing to objectto an officer's testimony about drugs the Seattle police found on Lee' s person when they arrested him; (2) cross - examining the officer
about what kind of drugs Lee was carrying when he was arrested; (

### 3) failing to request a limiting instruction related to the 

### drug evidence; (

### 4) failing to move to strike, object, or offer a curative 

### instruction related to an officer's testimony aboutthe victim's statements concerning herfear of Lee and fear of retaliation; ( 5) 

### failing to object to the victim' s testimony about previous uncharged acts of violence; and ( 6) conceding guilt in closing argument. Lee also argues that 

### cumulative ineffective assistance ofcounsel deprived him ofhis rightto afairtrial. Because Lee
either fails to establish deficient performance or fails to establish prejudice, we affirm.No. 43789 -9 -II FACTS I. ASSAULTS AND HARASSMENT In 2011, Erika Wolf and Lee had dated for about five years and had two children together. 

### Although they did not live together, Lee often stayed overnight with Wolf and their children in their apartment. 

### On September 25, 2011, while staying with Wolf,Lee became angry with Wolfafter she had admitted 

### being unfaithful to Lee. When Lee announced, "` I have something on my mind
and I' m not 

### leaving until I get it off, "'

### Wolfrealizedthat he intended to " beat [her] up reallybad,

or kill [her]" because he had " done it to [ her] before." 1 Report of Proceedings ( RP) at 120. Lee then told her that he was going to take her car " or something" to " get it offhis mind," and left the apartment. 1 RP at 121. Wolf went into the bathroom, locked the door, and started to use the toilet; she then heard Lee come back inside the apartment. Lee told her to open the bathroom door, but when she told him she was using the toilet, he kicked the door down and started to hit her. He slapped her several times, kicked her in the face several times, grabbed her, threw her into the shower, attempted to hit her with the shower
curtain rod, and then started to choke her with both of his hands. He squeezed her throat hard enough that she could not breathe. 

### While hewas doing this, he called her a "bitch" and told her that he would have killed her if their children had not been there. 1 RP at 123. She believed 

### him. Although Wolfdid not lose consciousness, shewas dizzy, herhead was pounding, and her
vision was 

### blurry. 

### After he stopped choking her, she somehow ended up back on the toilet,
where he continued to slap and kick her. The incident woke their two - year - old son, who was in Wolf's bedroom. When she went to get her son, Lee left.

2No. 43789 - 9 -II Wolf called her mother and told her to come over so she (Wolf)could go to the hospital. Wolf's stepfather called the police. 

### When the police arrived at her apartment, Wolftold them what had happened and they tookphotographs ofher and ofthe bathroom. An ambulance took her to the hospital. One ofthe officers was with her at the hospital. While atthe hospital, Lee called Wolfon her cellulartelephone and told herto go backto the apartment " because he was going to come back and beat [her] up again "; he also accused her of "

### being a snitch and calling the police." 1 RP at 136. Wolf put the call on speaker phone so the officer could hear it. 

### Two days later, Lakewood Police Officer Michelle Hector photographed Wolf's injuries. 

### The left side ofWolf's face, including her eye, lip, and cheek,were still significantly bruised. Wolfalso had two large bruises near her left hip, a scrape on her left knee, and a scrape on the inside ofher left ankle. 

### A couple of weeks after the incident, but before his arrest, Lee called Wolf and left a voicemail message in which hethreatened to harm her. Wolflet the police recordthis message.

The Lakewood police did not 

### immediately locate Lee. After Wolf or her mother told 

### Officer Hectorthat Lee was in Seattle selling crack cocaine, Officer Hector requested assistance locating Lee from other local law enforcement agencies. The Seattle police located and arrested Lee. 

### At the time of arrest, Lee had a small amount of marijuana and two Vicodin pills in his pocket.

3No. 43789 - 9 -II II. PROCEDURE A. CHARGES AND PRETRIAL MOTION The State charged Lee with ( 1) second degree assault 

### by strangulation ( domestic violence),' ( 

### 2) second degree assault by reckless infliction of substantial bodily harm (domestic violence), 2 and (3) harassment 

### by threat of

### bodily injury (domestic violence). 3 The State alleged 

### several aggravating factors on both assault charges, including that Lee committedthe offense in the presence ofaminorchild.4 Before trial, Lee moved to suppress the evidence that when he was arrested in Seattle,
officers found a small amount of marijuana and " a couple pills" on his person. 1 RP at 17. The State did not object to this motion. The trial court granted the motion, excluding " any reference to marijuana or pills found in his possession when he was arrested." 1 RP at 17. The State' s 

### witnesses testified as described above. Lee did notpresent any evidence. B. DRUG POSSESSION EVIDENCE 

## During Officer Hector'stestimony,the State questioned her about a fax she had sent to the Seattle Police Department after Lee' s arrest. The State objected when, on cross - examination, defense counsel tried to introduce a sentence on the fax cover sheet in which Officer Hector said, We really would like to hammer this guy with anything possible." 1 RP at 62.

RCW 9A.36.021( 1)( g); RCW 10.99.020. 2 RCW 9A.36.021( 1)( a); RCW 10.99.020. 3 RCW 9A.46.020( 1)( a)( i), ( b); RCW 10.99.020. 4 Former RCW 9.94A.535( 3)( h)(ii) ( 2010). ElNo. 43789 - 9 -II 

### Outside the jury's presence, defense counsel argued that this statement was evidence of Officer Hector' s bias. The State questioned the statement' s relevance and argued that if Lee was 

### able to introduce the " hammer this guy" statement, the State should be able to introduce other portions of the fax to clarify why Officer Hector said this. 

### Specifically, the State argued that it 

### should be able to introduce the portion ofthe fax referring to allegations that Lee was " dealing
crack" and that Lee may have possessed drugs at the time of his arrest. 1 RP at 62. Defense 

### counsel responded that the admission ofthe drug evidence was improper given the trial court's earlier ruling excluding the.drug evidence. The trial court ruled that ifLee chose to question Officer Hector about the " hammer this guy" statement, the State " should be allowed to rehabilitate [ Officer Hector] on the rest ofthe portions of the fax." 5 RP at 290. It stated thatthe entire fax would be admissible ifLee opened 

### the door and thatthe evidence was not hearsay because it was not being offered forthe truth of 

### the matterbut, rather,to explain why Officer Hector made the statementthe defense introduced. The trial court also offeredto givethejury alimiting instruction. On cross -

examination, defense counsel had Officer Hector read the " hammer this guy"
statement in full, which stated, " 

### I would like a copy ofthe arrest report, please, in orderto see the details ofthe arrest and what officers arrested him, as we really would like to hammer this guy with anything possible." 5 RP at 295. On redirect, the State asked Officer Hector to read the entire page, which stated,

Subject: Carl Lee, ... was arrested 

### by Seattle [ Police Department]. Subject was arrested this weekend on Washington's Most Wanted and victim's brother led 

### police to his location. He was said to be dealing crack; however, no new charges were seen on the jail roster charges. 

### I would like a copy of the arrest report, please, in order to see the details ofthe arrest and what officers arrested him, as we really would like to hammer this guy with anything possible. I'm not sure if ENo. 43789 - 9 -II the possession of drugs was added 

### by [ the Department of Corrections] as a violation. Thank you." 5 RP at 297. 

### Defense counsel then asked Officer Hector whether any of the Seattle police reports indicated that Lee was in fact selling crack cocaine. Officer Hector responded that they did not.

### The State then asked Officer Hector whether any ofthe reports said that Lee possessed drugs when he was arrested. Defense counsel objected and moved for a mistrial. The trial court
overruled the objection, and Officer Hector responded, " Yes." 5 RP at 303. Defense counsel then questioned Officer Hector about what drugs the police reports mentioned, and Officer Hector confirmed thatthe reports mentioned 1. 9 grams ofmarijuana and two Vicodin pills valued at $ 1. 

### She also testified that the reports said nothing about Lee selling 

### marijuana or pills and clarifiedthat she had learned aboutthe possible drug selling from Wolfor her mother. 

### The trial court excused the jury after this questioning, and defense counsel argued his
mistrial motion. 

### He argued that his questioning was about whether Lee had been selling crack cocaine and thatthe Statewent beyond the scope ofthat questioning by asking about evidence of any drugs." 5 RP at 307. 

### The State argued that Lee had opened the door by asking " about the
absence of a reference to 

### dealing crack cocaine" and asserted that the additional testimony was 

## necessaryto give a " complete picture" explaining Officer Hector's reference in the faxto some type of

### drug charge. 5 RP at 307. 

### Agreeing that Lee had openedthe door,thetrial courtdenied Lee' s mistrial motion. 

### Defense counsel declined the trial court's offer to give a limiting instruction related to the drug evidence, stating,

I don' t believe one will solve the problem, Your Honor. 

### So likely I' m not going 

### to propose any limiting instruction because I don't know exactly why it was 31No. 43789 - 9 -II

admitted. 

### That's for the Court to determine and the person offering it to suggest to the Court. I was that person. 5 RP at 310. C. WOLF' S FEAR Officer Hector also testified that Wolf had said she was afraid of Lee and of Lee retaliating. 

### Defense counsel objected to this testimony, but the trial court overruled the objections D. PREVIOUS, UNCHARGED ACTS OFVIOLENCE Before Wolf testified, the State asked the trial court to determine the admissibility of 

### Wolf's testimony about several previous, uncharged acts ofviolence Lee had committed against her. In an offerofproof,Wolftestified in detail about several incidents ofviolence by Lee inthe five years before this incident. 

### She testified about not only the violent acts, but where they occurred, what precipitated them, what Lee said to her before and during the assaults, and why
she did not report these incidents to the police. The trial court ruled that the State could introduce evidence ofthese prior acts of violence, but it told the State that it needed to "

### keep[ ] it to general terms ofdescribing those events." 1 RP at 105. 

### When Wolftestified,the State asked her if she believed that Lee would have " beat [her] 

### up again" ifshehad returnedto herapartmentafterLeetold herto do sowhile onthe phonewith her in the hospital. 1 RP at 137. Wolf responded that she believed he would hurt her again because ofwhat he hadjust done. 

### The State then asked her ifLee had ever previously followed through on threats to "beat her] up" in the past. 1 RP at 137. After Wolfresponded that it had happened before, the State 

### 5We setoutthistestimonyanddefense counsel'sobjection inmoredetail below. 7No. 43789 - 9 -II

asked her how Lee had harmed her before. Wolf responded that Lee had "[ w]hipped [her]with a belt until [her] 

### body-was welted, slapped [ her], choked [her], kicked [ her], dragged [her] around 

### by [ her] hair," and had once kicked her in her side near her 

### kidney. 1 RP at 137. She also testified that she did not call the police after these incidents because she loved him and was afraid that he would "beat [her] up." 1 RP at 138. 

### Defense counsel did not object to any ofthe testimony in which Wolf was describing 

### how Lee had hurt her; he objected only after Wolftestified that she was afraid of Lee because she feared that he would " beat [ her] up." 1 RP at 138. 

### Outside the jury's presence, defense
counsel stated, Your Honor, I've let the State get out a lot, voluminous testimony about prior instances. 

### And I would object to any further reference to any prior instances. 

### Certainlythere's enoughto establish any element ofthe crime thatthe State needs to establish at this point. 

### 1 RP at 139. The State asked the trial courtto allow Wolf's last answerto stand and stated it ( the State) had not planned to ask Wolf any more questions about any previous incidents. Defense
counsel noted that he had not asked the trial court to strike the last answer. The trial court 

### sustained any objectionto additional questions aboutthe previous incidents. E. LEE' S CLOSING ARGUMENTS AND VERDICT 

### In Lee's closing argument,defense counsel argued, There' s only a few issues in this case. It' s not a who - done - it. The issues center on is what occurred on September 25, does it amount to an assault in the second degree or an assault in the fourth degree? Carl Lee struck Erika Wolf and inflicted the injuries that you saw. There is no dispute on that.... Carl Lee 

### threatened Erika Wolfand Erika Wolfhad reason to believe that those threats could be carried out. There is no dispute on that. . . . 

### Clearly, Carl Lee committed an assault 4 and there' s no dispute on that. So the State has charged Mr. Lee, however, with assault in the second degree. And thus that is where your deliberations need to focus. The elements NNo. 43789 - 9 -II

are in dispute -- that [ sic] elements that are in dispute are, in Count I, whether or not the State has shown beyond a reasonable doubt that strangulation has 

### occurred; and in Count II, whether or not the State has shown by proofbeyond a 

### reasonable doubtthatthere was substantial bodily harm. That'sthe focus. 5 RP at 371 ( emphasis added). 

### He further emphasized thatthejury should focus on whether the State had proved the strangulation element on the first assault charge and the substantial bodily harm element on the second assault charge. 

### Thejury convicted Lee oftwo counts ofsecond .degree assault-domestic violence, with the aggravating factor ofhis having committed the offenses with a minor child present and one count ofharassment-domestic violence. Lee appeals his convictions. ANALYSIS 

### Lee argues that his trial counsel provided ineffective assistance ofcounsel in (1) failing to 

### object to Officer Hector's testimony about the drugs the Seattle police found on Lee's person when they arrested him, despite the trial court' s pretrial ruling suppressing the 

### drug evidence; (2) 

### cross - examining Officer Hector about what kind of drugs Lee was carrying when he was arrested; ( 3) 

### failing to request a 

### limiting instruction related to the 

### drug evidence; (

### 4) failing to move to strike, object, or offer a curative instruction related to Officer Hector's testimony about Wolf's statements concerning her fear of Lee and fear of retaliation; ( 5) 

### failing to object to Wolf' s testimony about the previous, uncharged acts of violence; and ( 

### 6) conceding guilt in 

### closing argument. He also arguesthatcumulative ineffective assistance ofcounsel deprived him ofhis right to a fair trial. We disagree.

I. INEFFECTIVE ASSISTANCE OF COUNSEL STANDARD OF REVIEW 

### Counsel is presumed to have acted competently unless defendant shows otherwise. State

v. Grier, 171 Wn.2d 17, 33, 246 P. 3d 1260 ( 2011); State v. Thomas, 109 Wn.2d 222, 226, 743 G,No. 43789 -9 -II

P.2d 816 ( 1987). To succeed on an ineffective assistance of counsel claim, Lee must show that
counsel' s conduct was deficient and that the deficient performance was prejudicial. Grier, 171 Wn.2d at 33; see also Stricklandv. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). If defense counsel' s conduct can be characterized as reasonable, legitimate trial strategy or tactics, a claim of ineffective assistance fails. Grier, 171 Wn.2d at 33 -34; State v. Hendrickson, 129 Wn.2d 61, 77 - 78, 917 P.2d 563 ( 1996). To establish prejudice, Lee must demonstrate a reasonable probability that " but for
counsel' s unprofessional errors, 

### the result of the proceeding would have been different." Strickland, 466 U.S. at 694. 

### Ifthe ineffective assistance claim fails on one prong, we do not address the other prong. 

### State v. Staten, 60 Wn.App. 163, 171, 802 P.2d 1384, review denied, 117 Wn.2d 1011 ( 1991). II. OFFICER HECTOR' S DRUG TESTIMONY

A. OFFICER HECTOR'STESTIMONYABOUT LEE' S DRUG POSSESSION 

### Lee first argues that defense counsel provided ineffective assistance in "fail[ing] to object 

### to Officer Hector's testimony regarding the drug evidence that the Court had suppressed pretrial." 

### Br.ofAppellant at 20. Lee contends thatthis was not a legitimate trial strategy,that it

was not objectively reasonable for defense counsel " to fail to object when Officer Hector 

### testified as to her opinion that Mr. Lee was guilty ofpossession ofdrugs and probably guilty of the charged crimes. "6 Br. ofAppellant at 20.

6 

### To the extentthis assertion also suggests that Lee is arguing that defense counsel should have objected to Officer Hector's testimony as opinion of guilt testimony, Lee fails to present any argument related to such a claim. 

### Accordingly, we decline to determine whetherthis testimony amounted to opinion ofguilttestimony. RAP 10.3( a)(6). 10No. 43789 - 9 -II 

### Despite Lee's current arguments, the record clearly shows that defense counsel objected to the admission of any 

### drug evidence. The trial court overruled defense counsel' s objections and allowed the State to question Officer Hector about the information in the fax cover sheet, 

### which included that Officer Hector had information suggesting that Lee was selling crack cocaine and that Lee may have possessed drugs when he was arrested in Seattle. Because defense counsel objected, this ineffective assistance of counsel claim fails. 7

B. DEFENSE COUNSEL' S CROSS -EXAMINATION OF OFFICER HECTOR Lee next argues that defense counsel provided ineffective assistance in cross - examining 

### Officer Hectoraboutwhat kind ofdrugs the Seattle police foundwhenthey arrested Lee. He 

### contends thatthis detailed evidence was unnecessaryandthatthe inquirywas not a legitimate trial strategy. Before defense counsel questioned Officer Hector about what drugs Lee was carrying 

### when the Seattle police arrested him, the jury heard allegations that Lee was dealing crack 

### cocaine and that he may have also violated his community custody by possessing drugs at the time of his arrest. Lee has failed to show it was an unreasonable tactical decision for defense 

### counsel to question Officer Hector about what drugs Lee actually possessed in order to take the 

### sting out of this evidence by establishing that Lee was not carrying any crack cocaine or any other 

### drug in an amount that suggested he was 

### dealing drugs. 

### Accordingly, because Lee has failed to show that this was an unreasonable tactical decision, this ineffective assistance of counsel claim also fails.



### 7 Lee does not challenge the trial court's ruling allowing this evidence and testimony on appeal. His arguments are presented solely as ineffective assistance ofcounsel claims. 11No. 43789 - 9 -II C. FAILURE TO REQUEST A LIMITING INSTRUCTION 

### Lee next argues that defense counsel provided ineffective assistance in failing to request 

### a limiting instruction relatedto.the drug evidence. Again,we disagree. The record suggests that defense counsel did not request a limiting instruction for two reasons: ( 

### 1) he did not think that a limiting instruction would be effective, and (2) he did not 

### understand whythe trial court had admitted the evidence. Although defense counsel could have arguably asked the trial court to limit the drug evidence testimony to the purpose of showing Officer Hector's possible bias, we hold that any error in not requesting this instruction was harmless.

The evidence that Lee had assaulted and threatened Wolf was overwhelming. Given the 

### minor nature ofthe drug evidence and the strength ofthe otherevidence, we cannot saythat Lee has demonstrated a reasonable probabilitythat "butfor counsel's unprofessional errors,the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Accordingly, this ineffective assistance ofcounsel claim also fails.

III. OFFICER HECTOR' S TESTIMONYABOUTWOLF' S STATEMENTS Lee next challenges defense counsel' s failure to object and / or move to strike portions of 

### the following testimony: Q[The State]. 

### One last question, and I' m reaching far back in to Monday and the

cross -

exam of defense counsel, defense had asked you if Ms. Wolf appeared scared or afraid, in your opinion, and you had said yes. Did Ms. 

### Wolfactuallytell youthat shewas scared ofMr.Lee? A[Officer Hector]. 

### Yeah, she did actuallytell me --

DEFENSE COUNSEL]: 

### Objection hearsay. STATE]: Your Honor, under ER 803( a)(3), goes to her physical and 

### emotional condition. It's not hearsay. THE COURT: I' ll overrule the objection. A. 

### She didspecificallytell me thatshe was scared ofhim and also mentioned

that she was scared -- 12No. 43789 - 9 -II DEFENSE COUNSEL]: Objection. Not responsive. THE COURT: Sustained. 

### Q. ( By [State]) 

### Didshe saythatshe was scared ofsomething else? A. 

### Ofretaliation. 5 RP at 300 -

01 ( emphasis added). Defense counsel did not ask the trial court to strike the nonresponsive" 

### answer, nor did he object to the State' s next question as hearsay or seek to strike Wolf's answer to that question.

Lee now argues that defense counsel was ineffective for 

### failing ( 1) to strike the 

### nonresponsive answer, and (2) to object to the next question as hearsay and then move to strike that response. 

### He contends that had the nonresponsive answer and the following question been 

### stricken,thejury would not have heard any testimony corroborating "Wolf's testimonythat she

was afraid that Mr. Lee would kill or harm her." Br. ofAppellant at 26. Again,we disagree. 

### First, as to the nonresponsive answer, only the second part of Officer Hector's response 

### was nonresponsive. The only information inthe nonresponsive portion ofhertestimonywasthat Wolfalso mentioned something else she was afraid of. Because defense counsel objected, the 

### potentially nonresponsive answer revealed very little and would not have been prejudicial. Furthermore, once the State rephrased the question, Officer Hector was able to testify about the 

### previously nonresponsive statementin full. Lee also challenges defense counsel's failure to object to the State' s follow - up question
and Officer Hector' s response to that question. If a defendant' s challenge to evidence' s 

### admissibilitywould havefailed,adefendantcannot showthat counsel was deficientforfailingto object to that evidence. State v. Nichols, 161 Wn.2d 1, 14 -15, 162 P. 3d 1122 ( 2007). The trial 

### court had already overruled Lee's hearsay objection to the immediately preceding testimony because thattestimony was admissible as evidence ofWolf'sthen existing mental, emotional, or 13No. 43789 - 9 -II physical condition under ER 803( a)(3). The State' s next question was about the same contact 

### and conversation with Wolf,so any potential hearsaywould clearly fall underthe same hearsay exception. It was not deficient performance for defense counsel notto object to this question and
response. 

### Accordingly, Lee again fails to establish deficient performance and this ineffective assistance of counsel claim also fails. IV. FAILURE TO OBJECTTO WOLF' S TESTIMONYABOUTPRIORACTS OFVIOLENCE 

### Lee next argues that defense counsel was ineffective in failing to object to Wolf's 

### testimony describing how Lee had hurt her in the past when the trial court had ruled that only generalized information about the prior incidents was admissible." Br. ofAppellant at 28. Lee
asserts that defense counsel should have objected to Wolf' s testimony that Lee had "[ w]hipped her] with a belt until [ her] 

### body was welted, slapped [ her], choked [ her], kicked [ her], [ and] dragged [ her] around 

### by [ her] hair," and that Lee had kicked her in her side, near her 

### kidney. 1 RP at 137 -38. 

### Following an offer ofproof,the trial court had ruled that evidence of prior, uncharged
acts of violence was admissible, but it told the State that it needed to " 

### keep[ ] it to general terms
of 

### describing those prior events." 1 RP at 105. In her offer of proof, Wolf had described the details of several previous assaults 

### by Lee. 

### She not only testified about what Lee had done to 

## her,butwhy Leewas assaulting her,where the assaulttookplace,and other details. In contrast, Wolf'strialtestimonywas limitedtothe factthathe had harmed her and what acts he had done to her. Wolf' s trial testimony was a much more " general" description of the various acts of violence Lee had committed against herthan Wolfhad testified to in her offer ofproof. Defense 

### counsel clearly believed thatthis was within the scope oftestimonythe trial court had allowed, and we hold that defense counsel' s evaluation ofthe trial court' s direction was reasonable and 14No. 43789 - 9 -II did not amount to deficient performance. 

### Accordingly, this ineffective assistance of counsel argument also fails. V. CONCEDING GUILT 

### Lee next argues that defense counsel provided ineffective assistance in conceding that 

### Lee had committed harassment and that he had struck Wolf and was guilty of "second degree 

### assault" by reckless infliction ofsubstantial bodily harm. This argument also fails. Lee misconstrues the record when he states that defense counsel conceded that he (Lee)

was guilty of second degree assault 

### by reckless infliction of substantial 

### bodily harm. Counsel 

### was arguing that Lee was, instead, guilty ofthe lesser included offense offourth degree assault and that the State had failed to prove the charged second degree assault. 

### Furthermore, although entering a not guilty plea preserved Lee's right to a fairtrial and his right to hold the State to its burden of proof, conceding guilt in closing argument on a particular count can be a sound trial tactic when the evidence on that count is overwhelming and
when the count is a " lesser count" 

### and there may be an advantage gained by winning the
confidence of the

### jury. 

### State v. Silva, 106 Wn.App. 586, 596, 24 P.3d 477, review denied, 145 Wn.2d 1012 ( 2001); 

### see also State v. Hermann, 138 Wn. App. 596, 605, 158 P.3d 96 (2007) Division Two case applying Silva). And "[ 

### a]n attorney need not consult with the client before making such a tactical move." 

### Silva, 106Wn.App.at 596 (citing Underwoodv. Clark,939 F.2d 473, 474 (7th Cir. 1991)). Here, the evidence ofthe less serious fourth degree assaults and ofthe 

### harassment was overwhelming and uncontradicted, and counsel conceded guilt as to these less
serious charges. 

### Under Silva and Hermann, this was a reasonable tactical decision, likely 

### intended to gain credibility with thejury on the far more serious second degree assault charges.

15No. 43789 - 9 -II Accordingly, Lee once again fails to establish deficient performance, and this ineffective assistance of counsel claim fails.

VI. NO CUMULATIVE INEFFECTIVE ASSISTANCE OF COUNSEL 

### Finally, Lee argues thatthese alleged instances ofineffective assistance,taken together, cumulatively deprived him ofafairtrial. Again,we disagree. The cumulative effects oferrors may require reversal, even ifeach erroron its ownwould
otherwise be considered harmless. See State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 ( 1984). All but one of Lee' s ineffective assistance of counsel claims fail because his counsel' s representation was not deficient. 

### The only claim that possibly shows deficient performance is trial counsel's failure to request a limiting instruction related to the specific drug evidence. 

### Because this isthe only possible errorandwe have already heldthatthis errorwas harmless, Lee does not establish that cumulative error deprived him ofa fair trial.

We affirm. 

### A majority ofthe 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.
HANSON, J.

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