IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, Respondent,

v. ANTONIAL M. MONROE, Appellant. No. 69123-6-1 DIVISION ONE

UNPUBLISHED OPINION FILED: April 28, 2014 

### LAU, J. — A jury found Antonial Monroe guilty of promoting prostitution in the first degree. We conclude thatthe trial court did not abuse its discretion inruling that Monroe's testimony "opened the door" to admission of his prior adult convictions and 

### that any error in the admission of Monroe's juvenile offenses was harmless. Monroe's claims that the trial court erred in failing to investigatejuror misconduct and that defense counsel was constitutionally deficient are also without merit. We therefore affirm. FACTS The State charged Antonial Monroe with one count ofpromoting prostitution in the firstdegree. At trial, 21-year-old JW testified that she was three when her parents divorced. She then lived with various relatives. JW gave birth to herfirst child in ninth 

### grade and dropped out ofschool in the eleventh grade.69123-6-1/2



### In 2010, JW met a pimp named Quinton Jones. Jones eventually beat JW, threatened her and her children, and forced herto prostitute herself. After Jones was arrested, JW continued to prostitute herselffor Jones and another pimp. 

### InSeptember2011, JW met a woman named Victoria Burden and moved into Burden's apartment inRenton. In October 2011, JW and Burden wentto a dance club and got into a fight withsome other patrons. As the women were leaving the club, Monroe approached and asked JW, who was bleeding, ifshe was okay. The two exchanged telephone numbers. JW and Monroe communicated several times during the following weeks. 

### Monroe told JW that "we could get money together, and be successful together and 

### stuff." Report ofProceedings (June 5, 2012) (RP) at 398. Ashorttime later, JW left 

### Washington and worked as a prostitute in both Las Vegas and Los Angeles. JW remained in contactwith Monroe, who made itclearthat he wanted herto work for him. JW returned to Seattle around Thanksgiving 2011 and continued to work as a 

### prostitute. Afterarresting one ofJW's customers, police officers took her to the Genesis Project, which assists victims ofsex trafficking. The Genesis Project helped JW move to the Dream Center in Los Angeles forfurther assistance. 

### In February 2012, JW returned to Washington and moved inagain with Burden in Renton. After a few weeks, JW got into an argumentwith Burden and contacted Monroe for assistance. Monroe picked up JW and took herto the house in Kirkland 

### where he was living. While staying in Kirkland, JW began "walking" for Monroe. RP 

### (June 5, 2012) at 413. Monroe drove JWfrom Kirkland to Highway 99, dropped her off,

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and then picked her up when she was done. Using Monroe's credit card, JW posted advertisements on an escort website. After several days in Kirkland, Monroe and JW moved to the Golden West Motel on Highway 99 in Edmonds, where JW continued to work for Monroe. Monroe told JW that she was "his girl" and was supposed to do what he wanted. RP (June 5, 2012) at 430. JW testified that although Monroe never beat her, he threatened her, became angry and loud, and ripped herjacket. JW gave all ofthe money that she earned to Monroe. On March 14, 2012, after spending about two weeks with Monroe, JW called Kyla Conlee at the Dream Center in Los Angeles. JW, who was crying and scared, told Conlee where she was staying and asked for help. Conlee said that she would arrange for assistance. Conlee contacted the Genesis Project, who contacted FBIAgent Steven Vienneau, who worked with agencies assisting victims ofhuman trafficking. Later that day, Monroe broughttwo otherwomen to stay with JW at the motel. Monroe had sex with one ofthe women. He then drove off with the two women, leaving JW at the motel. While he was gone, JW sent a text message to Monroe, warning him not to return to the motel because the police were there. AgentVienneau, who knew JW from the investigation ofQuinton Jones, arranged for task force members to arrest Monroe as he returned to the Golden West Motel. Monroe testified that he never asked JW to "walk" for him and denied that she used their room at the Golden West Motel for prostitution or that she ever gave him 

### money. He also denied threatening her or asking her to be his "bottom bitch,"the
woman incharge of his other prostitutes. RP (June 6, 2012) at 594. Monroe explained69123-6-1/4
that he was planning to make pornographic videos withthe two women at the motel and that he hoped to "be big" inthe video industry. RP (June 6, 2012) at 594. Monroe claimed that when he received JW's text message warning him about the 

### police, he became concerned that she might be committing suicide and raced backto the motel. As he arrived at the motel, the police started "coming out ofthe trees, the 

### fences, everywhere withassault rifles telling us put your hands out the car." RP (June 6, 2012) at 649. The police forced Monroe to lie on the ground in a puddle before 

### arresting him. Monroe acknowledged that he started "acting up" because he had no idea why he was being arrested. When officers refused to tell him why he was being arrested, Monroe told them, "I don't do nothing. Idon't commit crimes." RP (June 6, 2012) at 652. Prior to trial, the parties agreed that if Monroe testified, his priorconvictions for 

### second degree identity theft and givingfalse information to a police officerwere admissible under ER 609(a)(2). After Monroe testified that "I don't commit crimes," the trial court ruled that he had opened the doorto evidence of his other adultfelony and misdemeanor convictions. 

### The jury found Monroe guiltyas charged, and the court imposed a 120-month standard range sentence. ANALYSIS Opening the Door Monroe contends the trial court erred in ruling that his testimony "opened the door" to the admission of his prior nondishonesty adultfelony and misdemeanor 

### convictions. He argues that his statement "I don't commit crimes" was not a general

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claim ofgood character but indicated only that he did not understand why he was being arrested on the particular occasion. "Aparty's introduction ofevidence that would be inadmissible ifoffered by the opposing party 'opens the door' to explanation or contradiction ofthat evidence." State
v. Ortega. 134 Wn. App. 617, 626, 142 P.3d 175 (2006). When a witness "opens the door," the opposing party may introduce priorconvictions to counter assertions of a law

### abiding past regardless ofwhetherthe conviction would have been admissible under ER 609. See State v. Brush, 32 Wn. App. 450, 451, 648 P.2d 897 (1982). The doctrine 

### promotes fairness by preventing one party from bringing up a subjectto gain an advantage and then barring the other party from further inquiry. State v. Avendano

### Lopez. 79 Wn. App. 706, 714, 904 P.2d 324 (1995) (citing State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969)). We review a trialcourt's determination that a party has 

### opened the door for an abuse of discretion. Ortega. 134 Wn. App. at 626. 

### During his direct-examination, Monroe testified that as he was returning to the Golden West Motel, the police officers suddenly came "out of the trees, the fences, 

### everywhere with assault rifles." RP (June 6, 2012) at 649. According to Monroe, the officers then forced him to lie on the ground in a puddle, placed an assault rifle in his back, and then arrested him without providing any explanation. 

### Monroe acknowledged that he started "acting up" and "makingobscene comments" because he did not understand why he was being arrested and the officers refused to tell him:69123-6-1/6 

### Iwas justexplaining that Idon't know what Iwas being investigated for, so my only hints—Ijust left the roomwith females, so Idon't know what Iwas being arrested for, so Ijust said, man, Idon't do nothing. Iwasjust saying Idon't do nothing. Idon't commit crimes. Ijust-I'mjust a fuck boy. Ifuck bitches. What am Ibeing arrested for? RP (June 6, 2012) at 651-52 (emphasis added). Atthe next break, the deputy prosecutor argued that Monroe's assertion that "I don't commit crimes" opened the doorto the admission of his extensive adult and 

### juvenilecriminal history. Defense counsel maintained that Monroe's commentdid not open the doorto priorconvictions because he was merely explaining that he did not 

### know why he was being arrested on this occasion. Counsel also noted that the jury was unlikely to understand the comment as a general denial ofcriminal historybecause Monroe had earlier admitted a conviction for "identity theft." 

### Afterconsidering the issue overnight and hearing additional argument, the trial court found that Monroe had attempted to create a "false impression with the jury" by 

### "describing this over-the-top arrest process on a person who is, you know, pure as the driven snow but for this identity theft " RP (June 6, 2012) at 689. The court 

### concluded that the testimony had opened the door to evidence of his significantcriminal 

### history. Afterfurther argument and discussion, the courtruled that the State would be able to ask Monroe about his adultfelony and misdemeanor convictions without 

### specifying the number ofconvictions foreach type of crime. 

### During hisdirect-examination, Monroe described in detail what he perceived as
an unfairly aggressive arrest process. During the course of that description, Monroe claimed, "I don't do nothing. Iwas just saying Idon't do nothing. Idon't commit crimes."

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Monroe provided this characterization of himselfwithout any reservations or limitations. Viewed in context, Monroe's statement suggested that he was generally a law-abiding citizen, despite the prior conviction for identity theft. The trial court did not abuse its discretion in concluding that Monroe had opened the door to evidence of his prior criminal history. Juvenile Convictions After concluding that Monroe had opened the doorto evidence of his criminal history, the trial court limited the State's questioning to Monroe's adultfelonies and misdemeanors. The court explained, "I'm satisfied that that's the appropriate boundaries [adult felonies and misdemeanors] to put on itthat you've put on yourself withthe exception that Ialso want to have you make no reference to the juvenile matters." RP (June 6, 2012) at 702 (emphasis added). Monroe contends thatthe 

### deputy prosecutorthen blatantly violated the court's order by asking himaboutjuvenile convictions and that the trial court violated his right to a fair trial by failing to rectify the
misconduct. 

### Duringcross-examination, Monroe acknowledged prior adult convictions for unlawful possession of a firearm, bail jumping, and assaults, including misdemeanor 

### assault, felony assault, and custodial assault. The deputy prosecutorthen asked Monroe about convictions for arson, malicious mischief, reckless endangerment, 

### trespass, resisting and obstructing, and harassment. Monroe denied having ever been convicted of malicious mischiefand asserted that all ofthe remaining offenses, 

### including arson, involved juvenile convictions. Defense counsel raised no objection.69123-6-1/8 During the next recess, inresponse to a question from defense counsel, the trial court confirmed that ithad intended to exclude alljuvenile history. Defense counsel asked for a limiting instruction. The deputy prosecutor apologized and explained that he had misunderstood the court's ruling to exclude only Monroe'sjuvenile felonies for robbery and taking a motor vehicle. 

### In considering how to address the admission of juvenile offenses, the court noted that Monroe had erroneously asserted that his arson conviction was a juvenile offense ratherthan an adult conviction. Inaddition, contrary to his testimony, Monroe informed 

### the court thatthe only juvenile offenses at issue were reckless endangerment, malicious mischief, and harassment. The court found that under the circumstances, an instruction 

### that simplydirected the jury to disregard references to juvenile convictions would be misleading and inaccurate. Defense counsel conceded that a limiting instruction "could be awkward" and 

### declined the court's invitation to propose a limiting instruction that not only reflected the 

### court's ruling but also corrected Monroe's erroneous characterization of his juvenile history. RP (June 7, 2012) at 742. The trial court eventually decided that itwould not 

### give a special limiting instruction on juvenile offenses and would rely solely on the pattern instruction for prior convictions admitted under ER609.1 While the Court's view was that thejuvenile--the more remote intime-this will 

### just take a second--the more remote in time the conviction, the less probative
1 Instruction 6, based on 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 5.05 at 172 (3d ed.) provided: "Youmay consider evidence that 

### the defendant has been convicted of a crime only indeciding what weight or credibility 

### to give to the defendant's testimony, and for no other purpose."

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value ithad with respect to the credibility, Iagree with the State that itis-given the fact that the door was opened the way itwas opened, itis—it has some probative value. I'm going to leave it to thejury with this limitinginstruction, which Ithink covers itamply. It is complicated by the fact thatthere was an assertion that the arson was ajuvenile offense, the first degree arson, which is probably the most serious of the—it'sthe only class Afelony that Ithink was listed, was ajuvenile matter. So I'm not going to muddy the waters by calling attention and potentially commenting on the evidence as to what wasjuvenile and what was adult. RP (June 7, 2012) at 755-56. Monroe argues that the trial court erred in failing to give a limiting instruction, but he fails to address all ofthe circumstances that the court considered in making its decision. Monroe's testimony about hisjuvenile history was inaccurate. Among other 

### things, he characterized his adult conviction for firstdegree arson—a class Afelony—as 

### a juvenile offense. Defense counsel acknowledged that any limiting instruction under the circumstances would be "awkward" and made no attempt to draft an appropriate 

### instruction. Although an accurate limiting instruction would have addressed three 

### juvenile misdemeanors, it might also have emphasized the existence of Monroe's most serious adult conviction and suggested that Monroe had falsely described his juvenile 

### history. The State did not attemptto correctthe inaccuracies in Monroe's testimony. Underthe circumstances, the trial court did not abuse its discretion in relying on the 

### standard pattern instruction for prior convictions. See State v. Walker. 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998) (trialcourt's decision to give a particular limiting instruction is reviewed for an abuse of discretion). 

### Moreover, any error inthe admission ofthe threejuvenile offenses was harmless. The reference to each offense was brief. Monroe flatly denied ever

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### committing malicious mischief and explained thatthe harassment conviction involved "arguing over a bike," and the State never offered any rebuttal evidence to challenge his assertions. RP (June 7, 2012) at 714. Finally, Monroe was charged with promoting prostitution inthe firstdegree. Nothing in the record suggested thatthe circumstances 

### of the juvenile misdemeanors were similar to the charged offense or that they might 

### have triggered an emotional response by the trier of fact. Given the unchallenged evidence ofMonroe's criminal history, there was no reasonable likelihoodthatthe 

### admission of the three juvenile offenses had any effect on the outcome of the trial. See State v. Gresham. 173 Wn.2d 405, 433, 269 P.3d 207 (2012).
Juror Misconduct 

### During a recess, defense counsel informed the court that "somebody in the audience said ... a jurormight'vebeen sleeping for a while, and anotherjuror next to 

### them are nudging them awake." RP (June 5, 2012) at 477. The judge responded that she had not noticed the incident and commented, "[l]t is something that we have to 

### battle againstfrom time totime in the afternoons." RP (June 5,2012) at477. Afterthe deputy prosecutorindicated he had not seen anything, the courtaskedfor counsels' assistance in watching out for any potential misconduct. Defense counsel agreed. Monroe contends that the trial court violated his right to a fair trial when itfailed to investigate the possiblejuror misconduct. 

### Thetrialjudge has a duty "to excuse from furtherjury service anyjuror, who in the opinion of the judge, has manifested unfitness as a juror by reason of.
. . inattention
... or by reason of conduct or practices incompatible with proper and

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### efficient jury service." RCW2.36.110. RCW2.36.110 and CrR 6.5 place a continuous 

### obligation on the trial court to excuse any juror who is unfit and unable to perform the duties of ajury. State v. Jorden. 103Wn. App. 221, 226-27, 11 P.3d 866 (2000). The trial court need notfollow any particularformat inestablishing a record of juror misconduct and has broad discretion to resolve misconduct issues "in a way that avoids 

### tainting the juror and, thus, avoids creating prejudiceagainst eitherparty." Jorden. 103 Wn. App. at 229. 

### Here, defense counsel communicated an anonymous report that an unidentified 

### juror"might've been sleepingfor awhile." Neithercounsel nor thetrialjudge had observed the alleged incident. Defense counsel raised no objection, did not request an 

### investigation, and agreed to assist in watching outfor anyfuture misconduct. Given the 

### vague nature ofthe reported conduct, thetrial court'sdecision toforgo an immediate investigation and focusadditional attention on thejurors was reasonable. Therecord contains no further allegation of juror misconduct. Monroe asserts that he is "entitled to a new trial regardless ofwhetherthe record 

### shows misconduct occurred." Br. of Appellant at 44. But he relies solely on decisions in 

### otherjurisdictions involving specific and corroborated incidents of possible juror misconduct. See, e^, People v. Valerio, 141 A.D.2d 585, 529 N.Y.S.2d 350 (1988) 

### (trialjudgefailed to conductinquiry despite announcing that"[w]e hadtwojurorsthat
weredozing"); People v. South. 177A.D.2d 607, 576 N.Y.S.2d 314 (1991) (trial court 

### observedjurorwith eyes closed); Commonwealth v. Dancv. 75 Mass. App. Ct. 175, 912 N.E.2d 525 (2009) (trial court observedjurorrepeatedlyfalling asleep). No comparable

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circumstances were present here. The trial court's failure to undertake an immediate investigation was not an abuse ofdiscretion. Ineffective Assistance of Counsel Monroe next contends that defense counsel's performance was constitutionally deficient. He therefore bears the burden of demonstrating (1) that defense counsel's 

### representation fell below an objective standard ofreasonableness and (2) resulting prejudice, Le., a reasonable probability that but for counsel's deficient performance, the 

### result ofthe proceeding would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). We begin our analysis with the "strong 

### presumption" that counsel's performance was reasonable. State v. Kvllo. 166 Wn.2d 856, 862, 215 P.3d 177 .(2009). To rebut this presumption, Monroe must establish the 

### absence of any conceivable legitimate tactic explaining counsel's performance. State v. Grier. 171 Wn.2d 17, 42, 246 P.3d 1260 (2011). We review ineffective assistance claims de novo. State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
Venue Monroe asserts that the case should have been tried in Snohomish County and that defense counsel was therefore deficient because she failed to challenge venue in 

### King County or propose that venue be includedin the juryinstructions. Butthe record establishes that venue was proper in King County. 

### Generally, criminal actions must be commenced in the county where the offense,
or an element ofthe offense, was committed. CrR 5.1(a). Under article I, section 22 of 

### the Washington Constitution, the defendant has the right "to have a speedy public trial

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... [in] the county in which the offense is charged to have been committed
.. . ." Ifthere is "reasonable doubt whether an offense has been committed in one oftwo or more counties, the action may be commenced in any such county." CrR 5.1(b). Venue is not an element of a crime, and the defendant must generally raise any 

### challenge before trial. State v. Dent. 123 Wn.2d 467, 479-80, 869 P.2d 392 (1994). If the defendant challenges venue based on evidence presented during trial, the State must prove venue by a preponderance of the evidence. Dent, 123 Wn.2d at 480-81. In orderto convict Monroe of promoting prostitution inthe firstdegree, the State 

### had to prove that he knowingly advanced prostitution or profitedfromprostitution by 

### compelling JWwith threat or force toengage in prostitution. RCW9A.88.070(1)(a). A defendant advances prostitution bycausing or aiding another person to engage in 

### prostitution or engaging "in any other conduct designed to institute, aid, orfacilitate an act orenterprise of prostitution." RCW 9A.88.060(1). 

### The State presented evidence that Monroebegan pressuring JW to workforhim


### as a prostitute while he was living in Kirkland and she was living in Renton. Shortly 

### aftermoving in with Monroe in Kirkland, JW began "walking" forhim. Monroe drove JW from Kirkland to Highway 99, dropped heroff, and then picked her up when she was done. 

### Because the State presented evidence that Monroe advanced prostitution inKing 

### County, venue was proper inKing County. CrR 5.1(a)(2). Consequently, Monroe cannot demonstrate that'defense counsel's failure to challenge venue was either

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deficient performance or prejudicial. Agent Vienneau's E-mail Monroe contends that defense counsel was ineffective for failing to present evidence about Agent Vienneau's "crucial e-mail that stated his beliefat the time that Monroe was not a threatto the alleged victim." Br. ofAppellant at 53. When defense counsel soughtto cross-examine Detective Jaycin Diaz about the contents of the e-mail, the trial court sustained the State's hearsay objections. Monroe argues that defense counsel should have asked Agent Vienneau about the e-mail to avoid the hearsay objections. To support his argument, Monroe cites only defense counsel's attemptto ask Detective Diaz whether "that e-mail actually state[s] that [JW] was prostituting." Br. of Appellant at 54. ButMonroe makes no showing thatAgentVienneau's e-mail offered any opinion on Monroe or the potential threatthat he may have posed to JW. Consequently, his claim of ineffective assistance necessarily fails. Failure to Call Victoria Burden Monroe next contends that defense counsel was ineffective for failing to call 

### Victoria Burden "or any otherdefense witness." Br. ofAppellant at 57. But the decision whetherto call a specific witness is generally a matter of trial strategy that will not 

### support a claim of ineffectiveassistance. State v. Maurice. 79 Wn. App. 544, 552, 903 P.2d 514 (1995). Moreover, Monroe fails to identifywhat Burden or any other potential defense witness would have said. See State v. Weber. 137 Wn. App. 852, 858, 155 

### P.3d 947 (2007) (The failure to investigate or call witnesses is not prejudicial unless the

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record establishes thatthe witnesses would have been helpful to the defense.). His claim that Burden "likely" would have testified that she neverwitnessed Monroe threaten 

### JW is unsupported by anything inthe record and therefore cannot be addressed on direct appeal. See McFarland. 127 Wn.2d at 337-38. Inadeguate Trial Preparation 

### Finally, Monroecontends that retained defense counsel, who substituted in six 

### days beforetrial began at his insistence, was unprepared fortrial. Hefails, however, to identify any instances of deficient performance beyond those already alleged. For the
reasons already discussed, Monroe has made no showing that defense counsel's 

### failure to challenge venue, call additionaldefense witnesses, and orcross-examine 

### AgentVienneau about hise-mail was deficient performance orprejudicial. His claims of inadequate trial preparation are therefore without merit.
Affirmed.

WE CONCUR:

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