FILED 

NOVEMBER 17, 2016 

In the Office of the Clerk of Court 

WA State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DIVISION THREE 

STATE OF WASHINGTON, 

Respondent, 

v. 

RICHARD TODD LUDVIK, 

Appellant. 

JOSEFINE M. SMILEY 

ROBERT W. THOMPSON 

Defendants. 

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No. 33959-9-111 

UNPUBLISHED OPINION 

KORSMO, J. -Richard Todd Ludvik challenges his conviction for residential 

burglary. He argues that he received ineffective assistance of counsel both when his trial 

counsel failed to object to an officer's testimony about the crime and when his counsel 

failed to request an instruction on second degree burglary. In a statement of additional 

grounds (SAG), he challenges the sufficiency of the State's evidence for his burglary 

conviction. Finally, he preemptively asks this court not to impose appellate costs should 

he lose his appeal. We affirm, and a majority of the panel denies his request regarding 

costs. 
No. 33959-9-III 

State v. Ludvik 

FACTS 

The underlying facts are not particularly relevant to the appeal and are otherwise 

known to the parties. Briefly, Spokane County deputies found Mr. Ludvik in an old, 

unoccupied house with antique doorknobs in his pocket and he was charged with 

residential burglary. At trial, the State elicited testimony from one of the deputies about 

the investigation. The deputy responded without objection that he delayed entering the 

residence because he thought they "were starting to investigate an ·active residential 

burglary," which can be dangerous. Report of Proceedings at 31. At the close of trial, 

Mr. Ludvik's counsel sought an instruction on the lesser included offense of trespass, but 

did not seek an instruction on second degree burglary. The jury found Mr. Ludvik guilty 

of residential burglary. 

ANALYSIS 

Well-settled principles of law govern this appeal. To establish ineffective 

assistance of counsel, the defendant must show that counsel's performance was deficient 

and that this deficient performance prejudiced him. State v. Grier, 171 Wn.2d 17, 32-33, 

246 P.3d 1260 (2011) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984)). A defendant demonstrates deficient performance if 

counsel's conduct fell below an objective standard of reasonableness. Id. at 33. 

Prejudice occurs when the defendant can show with reasonable probability that, but for 

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No. 33959-9-III 

State v. Ludvik 

counsel's deficient performance, the result of the proceedings would have been different. 

Id. at 34. A challenge to effective assistance of counsel is reviewed de novo. State v. 

Rainey, 107 Wn. App. 129, 135, 28 P.3d 10 (2001). 

Because the presumption runs in fayor of effective representation, the defendant 

must show the absence of legitimate strategic or tactical reasons supporting the 

challenged conduct by counsel. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 

(1995). The presumption of effective representation can be overcome only by a showing 

of deficient representation based on the record of the proceedings. Id. . Where the alleged 

error is failure to object to evidence, the defendant must show that the objection would 

have been sustained. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998). 

Here, Mr. Ludvik cannot establish deficient performance. The failure to request a 

lesser included instruction can be reasonable trial strategy. See Grier, 171 Wn.2d at 42-

43. The crimes of residential burglary and second degree burglary are both class B 

felonies. RCW 9A.52.025, .030. They are only one seriousness level apart, creating a 

six-month difference in the standard range for the two crimes. RCW 9.94A.515. Given 

the slight difference in punishment, Mr. Ludvik's counsel may have thought it was not 

worthwhile to have second degree burglary as an option when a trespass instruction also 

was given the jury. Under Grier, this was a reasonable trial strategy. 

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No. 33959-9-III 

State v. Ludvik 

Regarding the deputy's testimony about investigating a "residential burglary," Mr. 

Ludvik again fails to demonstrate his counsel's failure to object constituted deficient 

performance. The deputy's testimony was benign. In context, he was merely explaining 

why he did what he did and not attempting to relay an opinion on guilt. It was reasonable 

for Mr. Ludvik's counsel not to object, and we are not persuaded that any objection 

would have been sustained. We find State v. Quaale, 182 Wn.2d 191,340 P.3d 213 

(2014) distinguishable because there context made clear the officer was relaying an 

opinion on the core issue of a disputed element. Id. at 200. 

Finally, we reject Mr. Ludvik's SAG argument that insufficient evidence supports 

his conviction because there was no evidence that he had the intent to steal. In a 

sufficiency challenge, the court reads all inferences in favor of the State. State v. Salinas, 

119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Here, a jury could reasonably infer from the 

fact that Mr. Ludvik had antique doorknobs in his pocket-an odd thing to have in one's 

pocket1-that he had the intent to steal items in the old house when he entered. 

As noted previously, a majority of the panel rejects Mr. Ludvik's request to deny 

appellate costs. 

1 Though not a true riddle, Gollum certainly would not have guessed antique 

doorknobs had Mr. Ludvik asked him, "What have I got in my pocket?" J.R.R. TOLKIEN, 

THE HOBBIT 74 (1937). 

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No. 33959-9-III 

State v. Ludvik 

Affirmed. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 

Lawrence-Berrey, A.C .. 

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