IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON,

Respondent,

v. BRENDAN REIDY TAYLOR,

Appellant. )

) ) ) ) ) ) ) ) No. 35172

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UNPUBLISHED OPINION

L AWRENCE

- B ERREY , C. J.

— In State v. Taylor , 19 3 Wn.2d 691, 444 P.3d 1194 (201 9 ), our Supreme Court reviewed and reversed one of two issues decided in our prior decision

. It then remanded the appeal to us t o resolve Taylor’s unresolved arguments

— two claims of ineffective assistance of counsel , cumulat ive error, and entry of an unlawful
sentence

. We reject Taylor’ s ineffective assistance claims and accept the State’s concessi on that the trial court exceeded its authority by sentencing Taylor beyond the statutory maximum

. FACTS Brendan Taylor and An na 1 began living together in January 2016. A no

- contact order prohibited Taylor from being within 1,000 feet of Anna . Nevertheless, they continued to live together.

1 We refer to Anna by only her first name to avoid subjecting her to unwanted publicity. We intend no disrespect. 

### FILED FEBRUA RY 18, 2020 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 35172

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State v. Taylor

2 On Christmas Day 2016, their landlord drove past their residence and saw Anna using a s now shovel like a hatchet against the windshield of Taylor’s car. The landlord called 911

. Anna also called 911

. Taylor, who was under supervision by the Department of Corrections, left by the time law enforcement arrived. Anna told the deputy that Tay lor hit her multiple times in the head

. An ambulance arrived and took Anna to the hospital. The deputy went to the hospital later that day to ask Anna questions. He later testified that Anna ’s injuries, facial bruising and bumps, were consistent with he r being hit multiple times in the head. The State charged Taylor with several crimes, including felony violation of a no

contact order , 2 assault in the second degree (strangulation or suffocation ) , and escape from community custody. PROCEDURE The da y prior to trial, Taylor pleaded guilty to some of the charges, including escape from community custody. At the change of plea hearing, Taylor provided a factual basis for his plea. The statement read s in part:

2 An assault in violation of a no

- contact order is a felony. RCW 26.50.110(4).No. 35172

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State v. Taylor

3 On or about December 27, 2017 [sic 3 ], I did willfully discontinue making myself available to the Department of Corrections for supervision, by making my whereabouts unknown or by failing to maintain contact with the Department as directed by the Community Corrections Office. Clerk’s Papers ( C P ) at 19. Taylor attested to the statement’s accuracy by signing it. When questioned by the trial court about the statement’s truthfulness, Taylor responded: I was out of gas in Oregon. But it’s

—Yeah, it’s basically true. . . . I was making my way to get back up here

. . . .

. . . . . . . I was on the phone with [my community corrections officer] and then he had left a message that I wasn’t going to be able to make an appointment , but it’s still

— it’s still the same as

— as missing out on

— on that. Report of Proceedings (RP ) at 7

- 8. Taylor went to trial on the felony violation of a no

contact order and assault in the second degree. On the morning of trial, Taylor asked the court to exclude the no

- contact order in light of his stipulation that he k new of its existence and it prohibited him from having contact with Anna . The State responded that it planned to admit two no

- contact orders. The trial court refused to accept Taylor’s stipulation. A t trial, the court admitted the no

contact order over Taylor’s ER 403 objection. Also before trial began, the court addressed the parties’ motions in limine, including Taylor’s request under ER 40 1, ER 402, and ER 406 to prohibit the State from

3 The stateme nt erroneously states the year as 2017 instead of 2016.No. 35172

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State v. Taylor

4 eliciting testimony about his methamphetamine use. The State a sserted that Anna would testify that Taylor used methamphetamine before the assault and would testify Taylor becomes aggressive when he uses methamphetamine

. The State argued that Anna had personal knowledge and it went to Taylor’s motive, intent, and sta te of mind at the time of the assault. The trial court agreed with the State and denied Taylor’s m otion, reasoning: “ [ T ] he [ S ] tate’s not trying to offer it to show the chara cter, but merely the motive.” RP at 18

- 19. The trial court also excluded Anna ’ s 911 call because the State failed to disclose it to Taylor until just before trial.
Anna testified at trial

. During cross

- examination, defense counsel asked Anna a series of questions to test her memory of the event

. When asked about her memory, Ann a described it as “ N ot the best.” RP at 10 9 . When asked whether she remembered talking to the deputy the day of the event, she said she did not remember talking to the deputy , either in the morning or later that day at the hospital

. When asked whether s he called 9 11, she sa id she did not recall calling 9 11. After these questions, the State asked t he trial court to admit the 91 1 call . It argued that Taylor’s questions opened the door. The trial court agreed, and the State played Anna ’s 9 11 call for t he jury.No. 35172

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State v. Taylor

5 The State called a deputy to admit pictures of Anna taken the day of the event. The pictures did not show bruising or any serious injuries. The deputy testified that bruising takes a bit longer to appear and , by the afternoon, Anna had some bru ising. During closing arguments, Taylor emphasized Anna ’s inability to remember and various inconsistent statements. He argued these problems made her testimony unreliable. The jury found Taylor not guilty of assault in the second degree, but did find him guilty of felony violation of a no

- contact order. We infer the jury found that an assault occurred, but that the State f ailed to prove the type of harm

— strangulation or suffocation

— to raise the assault to second degree. The trial court convicted Tayl or and sentenced him to five years of imprisonment and one year of community custody. Taylor appealed to this court. Taylor argued (1) the trial court abused its discretion by refusing to accept his stipulation and admitting the no

- contact order over hi s objection , (2) he received ineffective assistance of counsel in two instances, (3) cumulative error warrants reversal, (4) the factual basis of his guilty plea to escape from community custody wa s insufficient, and (5) the sentencing court exceeded its a uthority by sentencing him beyond the statutory maximum.No. 35172

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State v. Taylor

6 In our previous decision, we addressed the first and the fourth issues. We held that Old Chief v. United States , 519 U.S. 172, 191

- 92, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), which requires a t rial court to accept an accused’s offer to stipulate to a prior conviction when the existence of a prior conviction is an element of the offense, extends to an accused’s offer to stipulate to a postconviction no

- contact order. State v. Taylor , 4 Wn. App. 2d 381, 383, 421 P.3d 983 (2018), rev’d by , 193 Wn.2d 691, 444 P.3d 1194 (2019). We also held that the trial court erred by not inquiring about Taylor’s inconsistent statements prior to accepting his guilty plea to escape from community custody

. Id. at 3 91. Because we reversed Taylor’s conviction for felony violation of a no

- contact order, we did not address Taylor’s other assignments of error. Id. at 389 n.4. The State sought review of our decision . Th e Supreme Court granted review to address wheth er Old Chief applies to domestic violence no - contact orders. The court reversed our decision and held that Old Chief does not apply to domestic violence no

contact orders, and the trial court did not abuse its discretion by declining Taylor’s offer to sti pulate to the facts contained in the no - contact order. Taylor , 193 Wn.2d at 703. The court remanded the appeal to this court for further proceedings. Id. W e now address Taylor’s remaining assignments of error.No. 35172

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7 ANALYSIS A. I NEFFECTIVE ASSISTANC E OF COUNSEL Taylor contends there were two instances in which he received ineffective assist ance of counsel . First, his attorney waived the proper evidentiary objection by objecting to his prior drug use on grounds other than ER 404 . Second, his attorney
ope ned the door to the highly prejudicial and previously excluded 911 call

. To protect a defendant’s right to counsel, a defendant has the right to receive effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). An allegation of ineffective assistance of counsel is a mixed question of law and fact that we review de novo. Id. at 698. To determine whether counsel provided effect ive assistance, we apply a two

- pronged test: (1) whether counsel’s performance was deficient, and (2) whether that deficient performance prejudiced the defendant to an extent that changed the result of the trial. Id

. at 687. We can address the second prong initially “[i]f it is easier to dispose of an ineffectiveness c laim on the ground of lack of sufficient prejudice.” Id. at 697.

1. ER 404(b) objection was preserved, and admission of improper evidence was harmless error Taylor argues his attorney provided ineffective assistance of counsel by objecting to evidence of drug use on improper grounds, rather than ER 404(b) and ER 403. In theNo. 35172

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8 alternative, Taylor argues that

— if the ER 404(b) issue is preserved

— the trial court erred in its ruling. Although the motion in limine did not raise ER 404(b), the trial court ’s ruling shows it addressed the evidence in light of ER 404(b): And the [ S ] tate’s not trying to offer [the drug use] to show the character, but merely the motive. RP at 18

- 19. Because the ER 404(b) issue was address ed by the trial court, and therefore preserved for review, Taylor is not prejudiced by his counsel’s failure to raise an ER 404(b) objection

. This court reviews a trial court’s admission of ER 404(b) evidence for an abuse of discretion. State v. Freeburg , 105 Wn. App. 492, 497, 20 P.3d 984 (2001). “An abuse of discretion occurs only when the decision of the court is ‘manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. ’” State v. McCormick , 166 Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel. Carr oll v. Junker , 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith. State v. Slocum , 183 Wn. App. 438, 448, 333 P.3d 541 (2014). The evidence may be admitted for certain purposes such as proof of motive, opportunity, intent, preparation, plan,No. 35172

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State v. Taylor

9 knowledge, identity or absence of mistake or accident. ER 404(b). The State must meet a “substantial burden” when attempt ing to bring in evidence of prior bad acts under one of these exceptions. State v. DeVincentis , 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Before admitting misconduct evidence, the court must find by a preponderance of the evidence that the misconduct actually occurred, identify a proper purpose for the evidence, determine its relevance to prove an element of the offense, and weigh the probative value against the prejudicial effect. Slocum , 183 Wn. App. at 448. Here, the trial court engaged in no analysis ot her than to affirmatively state “the [S]tate’s not trying to offer [the evidence] to show the character, but merely the motive.”
RP at 18

- 19. Anna ’s testimony of Taylor’s history of drug use had no bearing as to whether Taylor violated the no

- contact ord er. The court held that it was to show motive. We disagree. The only purpose his history of past illicit drug use could have had was that he was mean when he us ed drugs in the past; hence, he was more likely to commit the present assault because he was under the influence of drugs. This is propensity evidence , which is prohibited by ER 404(b). However, not all evidentiary error is reversible

. “Erroneous admission of evidence in violation of ER 404(b) is analyzed under the nonconstitutional harmless er ror standard

— that is, we ask whether there is a reasonable probability that, without the error, ‘the outcome of the trial would have been materiallyNo. 35172

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State v. Taylor

10 affected. ’” State v. Gower , 179 Wn.2d 851, 854, 321 P.3d 1178 (2014) (internal quotation marks omitted) (q uoting State v. Gresham , 173 Wn.2d 405, 433, 269 P.3d 207 (2012)). The admitted testimony was harmless because the outcome of the trial would not have been different. T he jury found Taylor not guilty of assault in the second degree. The evidence presen ted at trial supported Taylor’s sole conviction for violation of a no

contact order. The State admitted the two no

- contact orders, which were in effect on December 25, 2016. Taylor knew of these orders. Anna testified to her interaction with Taylor on C hristmas Day and how he put his arm across her throat and hit her multiple times. The deputy testified that her bruising, which was manifest ed later that day at the hospital, was consistent with being assaulted. And because the felony violation of a no

c ontact order required the jury to find that Taylor’s conduct amounted to an assault

— and the jury found him not guilty of assault in the second degree

— the jury was not materially affected by the testimony of Taylor’s drug use by Anna

.

2. Asking victim if she called 91 1 was not deficient performance Taylor argues he received ineffective assistance of counsel because his attorney opened the door to the 911 call. We disagree

.No. 35172

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State v. Taylor

11 To establish ineffective assistance of counsel, the defendant must show deficient performance and that the deficient performance prejudiced the defendant . In re Pers. Restraint of Crace , 174 Wn.2d 835, 840, 280 P.3d 1102 (2012). To prove deficient performance, the defendant must show that the representation fell below an objective
sta ndard of reasonableness and there is a reasonable probability that, absent the error, the result would have been different. Id. at 842. In analyzing such a claim, the appellate court starts with a presumption that counsel’s representation was effective. State v. McFarland , 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). Competency of counsel is determined based on the entire record below. Id. When counsel’s conduct exhibits legitimate trial strategy or tactics, the performance is not deficient. State v. Gri er , 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). A defendant can rebut the presumption of reasonable performance by showing that there

was no “ ‘ conceivable legitimate tactic ’ ” explaining his counsel’s conduct. Id. (quoting State v. Reichenbach , 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). The key question is not whether the attorney’s choices were strategic, but whether they were reasonable. Id. at 34. Defense counsel’s central defense was that Anna was not believable . Defense counsel sought to show this, in part, by establishing that Anna had a poor recollection ofNo. 35172

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State v. Taylor

12 the day’s events. He succeeded in doing so. This success may have been part of the reason the jury did not convict Taylor on the serious charge of assault in the second degree. Unfortunately, the trial court determined that defense c ounsel opened the door to the 9 11 call when he asked the victim if she called 911. Anna testified she did not recall. This answer may have left the jury with the false impress ion that Anna did not call 91 1. Such an i mpression would have added weight to Taylor’s argument that he did not injure
Anna or that her injuries were not serious. Defense counsel took a calculated risk the trial court would not adm it the 91 1 recording and the jury would be left with a false i mpress ion that Anna did not call 91 1. Because th is strategy was reasonable , defense counsel was not deficient. We conclude that Taylor did not receive ineffective assistance of counsel

. B. C UMULATIVE ERROR Taylor contends the cumulative errors warrant re versal. We disagree. “The cumulative error doctrine applies when several trial errors occurred and none alone warrants reversal but the combined errors effectively denied the defendant a fair trial.” State v. Jackson , 150 Wn. App. 877, 889, 209 P.3d 55 3 (2009). T he only trialNo. 35172

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State v. Taylor

13 court error was admitting propensity evidence , which we concluded was harmless

. T here is no cumulative error. C. S ENTENCE EXCEEDING ST ATUTORY MAXIMUM Taylor argues the sentencing court exceeded its authority by sentencing him t o a combined period of incarceration and community custody longer than the 60

- month statutory maximum for class C felonies. A felony violation of a no

- contact order is a class C felony. RCW 26.50.110(4). It carries a maximum sentence of five years. RC W 9A.20.021(1)(c). The five

- year maximum includes the total combined period of incarceration and community custody. RCW 9.94A.701(9); State v. Boyd , 174 Wn.2d 470, 473, 275 P.3d 321 (2012). The court sentenced Taylor to 60 months in prison and 12 months o f community custody. The State concedes the trial court exceeded its authority by imposing a prison term and community custody totaling 72 months. We agree , accept the State’s concession , and remand for resentencing. 4
D. A PPELLATE COSTS

4 Because resentencing is required, we do not address Taylor’s argument that the State failed to prove prior convictions.No. 35172-6-III State v. Taylor
Taylor asks the panel to exercise its discretion to waive costs on appeal. In
accordance with RAP 14.2, we defer the decision of appellate costs to our court
comm1ss10ner. Affirmed, but remanded for resentencing.
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.
Lawrence-B~rrey, C.J. •
WE CONCUR:

Siddoway, J. 

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