## 20I5M/1R3O AM 9: /

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

v. JAMES EARL TUCKER, 

### Appellant. No. 70859-7-1

UNPUBLISHED OPINION

FILED: March 30, 2015 Schindler, J. — Ajury convicted James Earl Tucker of assault of F.T. inthe third degree. Tucker appeals, arguing his attorney provided ineffective assistance by failing to object at trial to the references F.T. made to past incidents ofdomestic violence. Because Tucker cannot demonstrate prejudice, his claim of ineffective assistance of counsel fails, and we affirm. FACTS James Earl Tucker and F.T. married in 1998. Ten years later, the couple divorced. Tucker and F.T. remained friends after the divorce. Tucker visited F.T. at her studio apartment in Seattle every day and stayed overnight several times a month. In November 2012, a Harborview Medical Center hand surgeon performed surgery on Tucker's right thumb to "return[ ] thejointto its stable position." Two weeks 

### after surgery, the splintTuckerwore was replaced with a hard fiberglass cast.No. 70859-7-1/2 

### Tucker called F.T. "several times" during the night of December4 to let her know he was on his way to her apartment. Tucker arrived at the apartment building around 1:30 a.m. on December 5. F.T. went downstairs to let him inside. Tuckerwanted to talk about past issues intheir relationship. F.T. wanted to go to 

### bed and suggested they wait untilthe morning to talk. Tucker got angry. Tucker and F.T. argued for about an hour before Tuckerwent to take a shower. While Tucker was inthe shower, F.T. tried to go to sleep. But afterTucker got out ofthe shower, he started arguing with her again. F.T. testified that as Tucker approached her while she was on the bed, he "made a motion" that made her think he

was about to hit her. F.T. said, "[S]o now you want to hit me." When F.T. stood up, Tucker hither several times inthe face with his right hand and the arm inthe fiberglass cast. After F.T. fell back onto the bed, Tucker grabbed her and squeezed her neck until 

### she could not breathe. F.T. struggled to free herselfand Tucker let her go. After he let her go, F.T. was on the floor on her hands and knees. Tucker kicked F.T. inthe chest and ribs. After kicking her, Tucker said, "[L]ookwhat you made me do." Tuckerthen told F.T. to get an ice packto put on her swollen eye and told herto tell people that she fell or ran into a wall. F.T. went to the bathroom and used a t-shirt to soak up the blood from her cut lip. 

### F.T. took photographs ofher swollen face and the t-shirt with her cell phone before 

### taking a shower. Tuckerfell asleep while F.T. was inthe shower. After making sure Tuckerwas asleep, F.T. took her keys, identification, and cell phone, went downstairs to the lobby, and called 911.No. 70859-7-1/3 Seattle Police Department Officer Richard Jackson, OfficerJeffDotson, and fire department medics arrived a few minutes later. Officer Dotson took a photograph of F.T.'s facial injuries. The medics gave F.T. oxygen and transported herto the hospital in an ambulance. Officer Jackson and Officer Dotson found Tucker asleep inside F.T.'s apartment and arrested him. The next day, F.T. gave a statementto Detective Pam McCammon. Detective 

### McCammon also took photographs ofF.T.'s injuries. The State charged Tuckerwith assault of F.T. inthe third degree inviolation of RCW 9A.36.031(1)(d). The information also alleged Tucker committed the crime "against a family or household member." A number ofwitnesses testified during the trial, including FT., OfficerJackson, and hand surgeon Dr. Chris Allan. The court admitted into evidence photographs of F.T.'s injuries and Tucker's fiberglass cast. Officer Jackson testified that he and Officer Dotson found Tucker "asleep on either a bed or sofa" inside F.T.'s apartment. OfficerJackson said he "didn't notice any 

### intoxication" while he was arresting Tucker. Officer Jackson testified that he could not fithandcuffs around the fiberglass cast and Tuckerwas "fairlycooperative." F.T. testified that afterthe divorce, Tucker remained her "bestfriend." F.T. said 

### Tuckervisited her "daily" and they were still intimate. F.T. testified that underthe 

### apartment building rules, Tuckerwas allowed to stay overnight "up to eight days" each month. F.T. said thatwhile Tuckerwas recovering from hand surgery, she received 

### permission to letTucker "stay for extra days" so he would not be "out in the shelters."No. 70859-7-1/4 

### F.T. testified that when Tuckerarrived at her apartment building at 1:30 a.m. on December5, he appeared to be "under the influence" and "really couldn't look me in my eye." F.T. testified that she knew Tuckerwas "high"because on December 1, she gave 

### him $630 to "go get his drug of choice. . . . Cocaine." F.T. testified that although they used cocaine togetherduring their marriage, she has been "clean" forthe pastfour

years. 

### F.T. testified thatTuckerbecame angry because she did not wantto talk until the next morning. F.T. said Tucker insisted on talking about "things we had done inthe past. Things that Ithoughtwe had talked about and cleared up and we moved on." 

### FT. testified that when Tuckerwas choking her, she thought "he was trying to kill me." Inresponse to a question about how she was able to getfree, F.T. testified, "I really don't know.

... Imight have said Ilove you." When asked why she waited two hours afterthe assault to call 911, F.T. said, "Because Idon't want him chasing me down the hall where Ilived at. And Iknow from the past experience, when this happened, Iwait until he fall asleep. This is my first time ever coming out speaking about this." 

### On cross-examination, defense counsel asked F.T. to clarify whether "this was the first time you evertalked about any incident between you and Mr.Tucker." F.T. answered, "Itried to do it once before. But I allowed him to sweet talk me into not pressing charges on him once before. This is the first time Iam ever doing this, yes." The defense called Dr. Allan to testify. Dr. Allan said that before the surgery, Tucker "had dislocation ofthe [carpal meta-carpal] joint ofthe rightthumb." Dr. Allan described Tucker's post-surgery cast as "a short arm thumb spike cast" with an "outer surface" of firm fiberglass. Dr. Allan testified the purpose ofthe castwas to "restrain theNo. 70859-7-1/5 

### hand against moving" and to "immobilize" the thumb. Dr. Allan stated the castgave Tucker "40degrees of motion" in the "last joint" of his thumb and leftthe otherfour 

### fingers free "forflexion and extension of all four of the nonthumb digits." On cross-examination, Dr. Allantestified that "[wjith the exception ofthe thumb," it is "possible" for a patient "inthat cast" to close the hand into a fist. Dr. Allan testified 

### he could "state withmedical certainty" that "the joint had not redislocated" but admitted he "did not have certainty" thatTucker's right hand had not been involved in "any 

### trauma" since the surgery. Dr. Allan testified, "[T]he hand could be used for any number ofthings withoutthe cast or the pins being moved." 

### Inclosing argument, the State argued F.T.'s testimony was credible and there

was no evidence "that would indicate [FT.] had fallen" or had been assaulted by another person. The State also pointed out Dr. Allan's testimony thatthe cast did not make itimpossible to form a fist and that Dr. Allan could not say with medical certainty thatTucker's right hand was not involved intrauma after surgery. The defense conceded that F.T. was injured on December 5 but asserted the State did not prove beyond a reasonable doubt that Tucker committed the assault. The defense asserted that F.T.'s testimony was not credible. The defense claimed Officer Jackson's testimony that he "didn't notice any intoxication" contradicted F.T.'s testimony that Tuckerwas "underthe influence" ofcocaine when he arrived at her apartment. The defense also argued the lack of scratches or imprints on F.T.'s neck contradicted her testimony that Tucker used the fiberglass cast to choke her.No. 70859-7-1/6 

### The jury found Tuckerguiltyas charged ofassault in the thirddegree and returned a special verdictfinding thatTucker and F.T. are "members ofthe same family

or household." The court imposed a "Special Drug Offender Sentencing Alternative." ANALYSIS 

### Tucker seeks reversal of his conviction, arguing his attorney provided ineffective assistance by not objecting to F.T.'s testimony referring to past incidents ofdomestic violence. Tucker also asserts his attorney should have moved to strike as unresponsive 

### F.T.'s answerto the question aboutwhetherthis was the first time she "talked about any incident" between her and Tucker. "The Sixth Amendment to the United States Constitution and article I, section 22 

### ofthe Washington Constitution guarantee the right to effective assistance ofcounsel." State v. Grier, 171 Wn.2d 17, 32, 246 P.3d 1260 (2011). To prevail on a claim of ineffective assistance ofcounsel, Tucker must demonstrate (1) deficient performance, 

### that his attorney's representation fell below the standard ofreasonableness, and 

### (2) resulting prejudice, thatthere is a reasonable probabilitythat but forcounsel's deficient performance, the outcome of the proceedings would have been different. Strickland vWashington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Kvllo, 166Wn.2d 856, 862, 215 P.3d 177 (2009). If a defendantfails to 

### establish either prong, we need inquire no further. Kvllo, 166 Wn.2d at 862. Tuckercannotestablish prejudice. Even where defense counsel fails to object to 

### "damaging and prejudicial evidence" ofpriorbad acts, a defendant claiming ineffective assistance ofcounsel must show that "the admission ofthe objectionable evidence 

### prejudiced [thedefendant's rightto a fairtrial." State v. Hendrickson, 129Wn.2d61,No. 70859-7-1/7 

### 78-80, 917 P.2d 563 (1996). We considerthe "prejudicial effect ofthejury's knowledge" ofthe defendant's prior bad acts "againstthe backdrop ofthe evidence inthe record." Hendrickson, 129 Wn.2d at 80. Ifthe remaining evidence "powerfully supports" a finding of guilt, "we cannot state that the result ofthe trial court would have been different" had the "objectionable evidence" not been admitted. Hendrickson, 129 Wn.2d

at 80. To convict Tucker ofassault inthe third degree, the State had the burden of proving beyond a reasonable doubt that Tucker, "[wjith criminal negligence, cause[d] bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm." RCW 9A.36.031(1)(d). The undisputed evidence establishes F.T. was injured the morning ofDecember 5, 2012. Officer Jackson testified that when he arrived at around 6:00 a.m., F.T. "had 

### facial injuries," including a "pretty swollen" lefteye, and injuries "around her mouth, her lip, lips were swollen." Photographs taken by Officer Dotson and Detective McCammon show cuts on F.T.'s lower lip and her left eye is swollen shut. The evidence established Tucker committed the assault. F.T. testified that her 

### apartment building has a security guard and guests must ring a bell and wait for a resident to come downstairs to letthem inside. When police arrived, F.T. was waiting in 

### the lobby and told them Tuckerwas stillinside her apartment sleeping. OfficerJackson testified that he and Officer Dotson found Tucker asleep inside F.T.'s apartment. 

### Tuckerclaims he has established prejudice because the evidence shows he could not hit F.T. with his arm inthe castwithout reinjuring his thumbjoint, there was noNo. 70859-7-1/8 blood on the cast, and there were no imprints ofthe cast on F.T.'s neck. Dr. Allan's testimony does not support his argument. Dr. Allan testified it is "possible" to form a fist in the castwithout the thumb, and "the hand could be used for any number ofthings without the cast or the pins being moved." Dr. Allan testified that he could not state with medical certainty thatTucker's 

### hand had not been involved in "any trauma" since surgery. Dr. Allan also testified that "[fjiberglass can take a lot. So Idon'tthink thatthere would be any evidence on the cast 

### ofalmost anything." When asked whether pressing a cast againstthe neckwould leave marks, Dr. Allan said that it"depends" on a number a factors, including "the orientation 

### ofthe castwith respectto the neck," the "timingthereof," and "the magnitude ofthe pressure." Dr. Allan testified it is "conceivable" that "an imprint might be left on the skin which would be transient, temporary." The cases Tucker relies on, State v. Saunders, 91 Wn. App. 575, 958 P.2d 364 

### (1998), and State v. Escalona, 49 Wn. App. 251, 742 P.2d 190 (1987), are inapposite. InSaunders, defense counsel purposefully elicited testimony aboutthe defendant's prior criminal conviction. Saunders. 91 Wn. App. at 580. InEscalona, we held the court 

### abused its discretion by denying the defense motion for a mistrial based on a witness's 

### unsolicited testimony thatthe defendant previously stabbed someone else. Escalona, 49 Wn. App. at 253, 256.No. 70859-7-1/9 

### Because Tucker cannotestablish prejudice, his ineffectiveassistance of counsel claim fails, and we affirm.1

WE CONCUR: 

# £zx,j.

1In a statement ofadditional grounds, Tucker makes the same ineffective assistance ofcounsel argument. Tucker also challenges the sufficiency ofthe evidence and argues the court erred inadmitting hearsay evidence. Sufficient evidence supports the conviction. The court did not abuse its discretion in allowing the fire department medic and the police officerto testify about conversations with F.T. when they responded to the 911 call.