IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. NICHOLAS RYAN COOK, Appellant, HOLLY ANN BURKHART, and each ofthem, Defendant. 

### Becker, J. — Nicholas Cook appeals his conviction for one count of 

### residential burglary. He contends that he was deniedeffective assistance of counsel when defense counsel failed to object to evidence that he was a suspect 

### in unrelated uncharged offenses. Butthe challenged comments were briefand isolated and did notclearly identify Cook's relationship to any prior offenses. Counsel's failure to object was therefore a reasonable trial strategy and did not constitute deficient performance. We affirm. FACTS 

### Kelly Szabo lives in the Richmond Beach area ofShoreline. At about 11:30 a.m. on March 18, 2015, Szabo dropped off lunch for her child at nearby 

### SyreElementary School. SyreElementary islocated in a residential area near No. 74449-6-1 DIVISION ONE
UNPUBLISHED OPINION FILED: January 17, 2017No. 74449-6-1/2

12th Avenue NW and NW 196th Street. The school is on a dead-end street that is accessible only through "side roads."1 As she left the school, Szabo noticed a white Buick with license number ANK7245 parked near the school on 12th Avenue, just north of NW 196th Street. One person was inside the car. Based on "prior information"2 about the Buick, Szabo called 911. Szabo had seen the same car on March 7 and followed it to a house in nearby Woodway. When Szabo drove past the house again on March 17, she noticed a red pickup truck with license number B06608S parked outside. Grant Bordon and his fiancee Gail Erickson live on 12th Avenue NW, two 

### houses south of Syre Elementary. On March 18, 2015, both Bordon and Erickson left their house for work by 8:30 a.m. Bordon believed that the couple left the door from the rear deck to the kitchen unlocked. When Bordon returned to the house around 1:30 p.m. and opened the 

### garage door, he was surprised tofind some ofthe parties' possessions, including suitcases filled with property, a television, and other "boxes ofstuff,"3 piled up 

### near the garage door. After entering the house, Bordon found that the house had been ransacked:

1 Report ofProceedings at 282. 2Report of Proceedings at 283. 3 Report of Proceedings at 355.No. 74449-6-1/3 the doors were open, the living room ... we have a big violin oboe, whatever it is, but anyway, itwas staged to go out the front door. There was boxes. There was a big container with a lot of my mom's stuffin it by the backdoor. Went upstairs, all the drawers had been pulled open and, you know, things were on the bed, on 

### the floors. So each room had been gone through.[4] Bordon called 911. King County Sheriffs officers responded to Szabo's 911 call at about 11:45 a.m. After speaking briefly withthe officers about the white Buick, Szabo left to take lunch to one of her other children at a different school. The officers were aware that Holly Burkhart, Burkhart's boyfriend Nicholas Cook, and Cook's brother Randolph were "associated"5 with the white Buick. When Detective Mark Souza arrived, Sergeant Richard Connelly was 

### speaking with Dane Sullivan, the driver of the Buick. The Buickwas parked 

### facing southtoward the Bordon/Erickson residence. Sullivan told Souza that he had "dropped some friendsoff'6 in the area. Connolly was holding Sullivan's cell 

### phone, which was "blowing up, ringing constantly."7 The phone identified Holly Burkhart as the caller. 

### After deliveringanother lunch, Szabo returned to Syre Elementary at 

### around 12:15 p.m. While speaking with DetectiveEric Soderstrom, Szabo saw

4Report of Proceedings at 339. 5Report ofProceedings at 320. 6Report of Proceedings at 313. 7Report ofProceedings at 320.
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### the redpickup truck with license numberB06608S drive down the hill on NW 196th Street. The truck then turned north onto 12th Avenue NW and sped past the officers. After Szabo directed his attention to the truck, Soderstrom directed other deputies to stop the truck. 

### As officers began theirpursuit, Anthony Birchman was working at a 

### nearby house. Birchman noticed a red truck drive by going "prettyfastforthe area."8 Birchman watched as the passenger door of the truck opened and a man 

### jumped out. The man, who losthis baseball cap as hejumped, crouched behind a nearby parked carand bush. Ashorttime later, apatrol carpulled up nearby. When theofficer steppedout ofthepatrol car, theman opened a gate andran 

### into abackyard. Birchman showed the officerwhere the man had fled. Detective Souzapursued thered truck as itturned off 12thAvenue NW 

### and drove uphill on NW 199th Street. Partway up the block, Souza stopped behind SergeantConnelly, who was standing outside his patrol car. Connelly had his pistol drawn and was "yelling commands."9 Connelly directed Souzato 

## the backyard ofanearby house, where Souzafound Cook lying on the ground. Cook hadfresh scratches onhis arm and was "breathing really, really hard, kind 

### ofsweating profusely, andhis heartwas racing."10

8Report ofProceedings at 301. 9Report ofProceedings at 326. 10 Report ofProceedings at 328-29.
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Officers stopped the red truck near the corner of NW 199th and 11th Avenue NW, a short distance from where Cook hadjumped out. Randolph Cook 

### was driving; Holly Burkhart was in the rear compartment of the truck's cab. 

### After obtaining a search warrant, Deputy Coby Coblantz searched the Buick and the truck. Coblantz found a black backpack on the front passenger 

### floorboard of the truck. The backpack contained some ofErickson'sjewelry, 

### prescription medication with Erickson's name on it, and one of Erickson's external hard drives. Coblantz found Cook's identification and wallet inthe white Buick. 

### The State chargedCook andcodefendant Holly Burkhartwith onecountof 

### residential burglary. The Statealso charged Burkhartwith onecount oftheft in 

### the third degree. Burkhartpleaded guilty before trial. Thejuryfound Cookguilty as charged, and the courtimposed a standard range sentence of72 months. FAILURE TO OBJECT Cook contends that he was denied effective assistance when defense 

### counsel failed toobjecttoinadmissible "propensity"11 evidence. He argues that the evidenceviolated a pretrial order and effectively informed thejury that he was 

### a suspectin otheruncharged burglaries in the neighborhood.

11 Brief ofAppellant at 11.No. 74449-6-1/6
Before trial, the defense moved to exclude evidence that Cook was a 

### suspect in earlier burglaries. Among other things, defense counsel objected to 

### any references to a police "bulletin."12 Edmonds police had prepared the bulletin 

### in February 2015, about a month before the charged offense, after a rash of 

### home burglaries. Thebulletin eventually appeared on the local website for the Richmond Beachneighborhood where the charged offenseoccurred. The bulletinwarned residents to watch out for a white Buick with license number 

### ANK7245. Police arrested Cook after Kelly Szabo saw the white Buick mentioned in the bulletin and called 911. 

### Defense counsel argued thatthepriorpolice investigations into Cook and others created a significantrisk ofunfair references topriorcrimes. Counsel asked the court to limitthe testimony to Cook's actions on March 18. 

### After anextensive colloquy, the court agreedwith defense counsel's 

## suggestion that Szabocould testify she called 911 based on "information
... [to] be on the lookoutfor this . . . white Buickwith a specific licenseplate,"13 without any reference to a "bulletin." The trial court also ruled that the testimony of the responding police 

### officers, who werefamiliarwith thebulletin, should berestricted in asimilar

12 Report ofProceedings at 44. 13 Report ofProceedings at 49.No. 74449-6-1/7

manner. The deputy prosecutor acknowledged that testimony about the bulletin could "open up a huge can ofworms"14 and informed the court that the State did not intend to elicit testimony about Cook's possible participation in prior burglaries. Defense counsel also suggested that the deputy prosecutor should
use leading questions during examination ofthe officers. During trial, Detective Souza testified, without objection, that police had information about a white Buick with a specific license plate number, that Sullivan 

### told the police he had just dropped offsome friends, and that Sullivan's cell 

### phone rang repeatedly, showing Burkhart's name as the caller. Souza then continued: 

### Q. Okay. So we has [sic] stated earlierthat you had 

### previously received information about this whiteBuick, ANK7245. Now, you see this phone ringing. Did you take any action based on that? A. We had information that the white Buick that was there, 

### and Holly Burket (sic) along with her boyfriend, Mr. Cook, and his brother, Randy, were associated with that vehicle. Q. Okay. So what did you do then? A. Based on the information that we had, previous 

### information, we had suspected that they were somewhere in the 

### neighborhoodand a crime was beingoccurred[sic]. 

### Q. Okay. Did you receive any instruction from the Sergeant as to what to do then? A. We all—the three of us there put our—kind of put our 

### minds together, and we decided to have the patrol units and the unmarked units, which is us and another detective's—we call it

14 Report of Proceedings at 47.No. 74449-6-1/8 roaming the area or roving the area to see if we can locate where they are, where they're coming from, or where they're hiding, or what they're doing. Q. Okay. When you say roam or rove, maybe it's selfexplanatory, but what exactly do you do? A. So not knowing where they are, we'll - we'll fan out in a neighborhood with our patrol vehicles and our unmarked cars in hopes of locating them.[15] Detective Soderstrom testified that he responded to the 911 call at about 11:45 a.m. The deputy prosecutor then asked about the type of call: A. Patrol guys were out with—or looking for a—a white Buick that we had information was possibly associated with a burglary. Q. Okay. Did you respond? A. Idid. When Ihear our guys go out on—orthe patrol 

### officers go out on a call like that, ifI'm not doing anything pressing 

### in the office, the detectives will generally go out and assist.1161 Cook maintains that the highlighted comments violated the pretrial 

### ruling and essentially informed the jury that Cook had committedprior burglaries. He argues that defense counsel's failure to object to the "prejudicial propensity evidence"17 constituted constitutionally deficient performance. 

### To prevail on a claim ofineffective assistance of counsel, the defendant must show that counsel's performance fell below an objective standard of

15 Report ofProceedings at 320-21 (emphasis added). 16 Report ofProceedings at 378-79 (emphasis added). 17 Brief ofAppellant at 11.
-8-No. 74449-6-1/9 reasonableness and that the deficient performance prejudiced the outcome ofthe trial. Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption that counsel provided effective representation, and
we accord "exceptional deference" to counsel's strategic decisions. State v. McNeal. 145 Wn.2d 352, 362, 37 P.3d 280 (2002). The defendant bears the burden ofdemonstrating the absence of any legitimate tactical or strategic decision. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011), cert, denied. 

### 135 S. Ct. 153 (2014). We review claims of ineffective assistance de novo. State v. Sutherbv. 165 Wn.2d 870, 883, 204 P.3d 916 (2009). "The decision ofwhen or whether to object is a classic example of trial 

### tactics." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662, reviewdenied. 

### 113Wn.2d 1002 (1989). When an ineffective assistance of counsel claim is based on the failure to object, the defendant must show that (1) the failure to 

### objectfell below an objective standard ofreasonableness, (2) the trial court would have sustained an objection, and (3) the result of the trial would have been different. In re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004). Under certain circumstances, the failure to object may be a reasonable strategy 

### to avoid emphasizing improper orirrelevanttestimony. Davis, 152Wn.2d at 714;No. 74449-6-1/10

see also State v. Donald. 68 Wn. App. 543, 551, 844 P.2d 447, review denied. 121 Wn.2d 1024 (1993). Cook contends that the challenged testimony violated the trial court's 

### pretrialruling and that the court wouldtherefore have sustained defense counsel's objection. But the fact that the trial court would have sustained an 

### objection does not byitselfdetermine the reasonableness of counsel's failure to object. See Davis, 152 Wn.2d at 714. 

### Defense counsel in this case vigorously and successfully argued against the admission ofevidence identifying Cook as a suspect in any prioroffenses. 

### During thelengthy pretrial colloquy, defensecounsel repeatedly expressed her concern that the trial testimony could become "very messy"18 because of the 

### scope oftheprior police investigation and the presence ofmultiple suspects. Counsel explained that because ofthesignificant risk ofinadmissible evidence, she was attempting toclarifythe issues in ordertoavoid objections during trial: Iwanted to alert the Court and Counsel to the issues that Isee 

### because, when we get into trial, the actualtestimony, it'sgoing to be very awkward.

. . . And Idon't want the Court or Counsel to hear my 

### objection rightthere, so that we have to taketime out ofthe presence of thejury, back andforth, back andforth.

18 Report ofProceedings at 27.
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Counsel also hoped "to keep things tidy and clean
. . . [and to] minimize sidebars, excessive objections, confusion, et cetera."19 The unchallenged evidence before thejury established that the police had prior information about the Buick and that the Buick was associated with multiple persons, including Cook. Viewed in context, the challenged testimony refers only vaguely to the existence of prior uncharged crimes. Nor did the officers provide 

### any specific details identifying Cook as a suspect in prior burglaries or any further information about the events that led to the police bulletin. The challenged comments were brief and isolated, and both officers immediately moved on to 

### unchallenged testimony about Cook's arrest. The State presented no further 

### testimony or argument that might have suggested Cook's involvementwith prior crimes. Given the attenuated and isolated nature of the comments, defense 

### counsel could reasonably have decided not to object in order to avoid 

### emphasizing the testimony and to minimize anyadditional speculation about the underlying circumstances. Because the decision not to objectwas a legitimate trial strategy, defense counsel's performance was not deficient.

Report of Proceedings at 28-29.
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APPELLATE COSTS Cook asks this court to exercise its discretion and not impose appellate costs. See State v. Sinclair, 192 Wn. App. 380, 385-86, 367 P.3d 612, review 

### denied. 185 Wn.2d 1034 (2016). The State does notaddress Sinclair and 

### contends only that the record contains insufficient information to determine Cook's future ability to pay. After considering the nonexclusive factors addressed in Sinclair, including the length of Cook's sentence, the trial court's 

### waiverofall nondiscretionary legalfinancial obligations, and Cook's continuing 

### indigence, we exercise ourdiscretion and do not assess appellate costs against
Cook. Affirmed.

WE CONCUR: 

## OeHj

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