State Of Washington, Respondent V. Aaron Michael Vargas, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTeN7cF.-o-r;!
DIVISION ONE tni-TI
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STATE OF WASHINGTON, ) No. 76951-1-1
) 4"...
Respondent, )
)
v. ) ORDER GRANTING MOTION
AARON MICHAEL VARGAS,
)
)
)
FOR RECONSIDERATION,
WITHDRAWING &
SUBSTITUTING OPINION -
Appellant. )
)
Appellant filed a motion for reconsideration of the court's October 1,2018
opinion. Respondent filed an answer at the court's request. The court has considered
the motion and determined that reconsideration should be granted, the opinion filed on
October 1, 2018 should be withdrawn, and an unpublished substitute opinion filed.
Now, therefore, it is hereby
ORDERED that appellant's motion for reconsideration is granted. It is further
ORDERED that the opinion of this court filed October 1, 2018 is withdrawn and a
unpublished substitute opinion be filed.
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COURT OF APPEALS DIVSTATE OF WASHINGTON
2019 JAN 22 AM 10:04
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 76951-1-1
)
Respondent, )
)
v. )
)
AARON MICHAEL VARGAS, ) UNPUBLISHED OPINION
)
Appellant. ) FILED: January 22, 2019
)
VERELLEN, J. —Aaron Vargas appeals his conviction for seven counts of
unlawful possession of a firearm on the grounds that he received ineffective
assistance of counsel. Because his attorney's decision not to request a limiting
instruction was a legitimate trial tactic in this case, Vargas does not establish
ineffective assistance.
Therefore, we affirm.
FACTS
On June 29, 2015, Officers Tim O'Hara and Paul Stewart responded to a
call from Alyssa Vargas reporting a domestic disturbance. After inviting the
officers inside, Alyssal led the officers down the hall to a safe containing
1 For purposes of clarity, we refer to Alyssa by her first name.

No. 76951-1-1/2
numerous firearms and ammunition. Officer O'Hara knew about Vargas's prior
serious felony offense prohibiting him from possessing guns, so, with Alyssa's
consent, he seized the guns and ammunition. Police also recovered firearms from
a locked box in the basement area. The State charged Vargas with 10 counts of
first degree unlawful possession of a firearm.
At trial, Officer O'Hara testified he and Stewart were concerned for their
safety because "[w]e received information that Mr. Vargas may still be in the house
downstairs [in a locked basement apartment] and that he could be armed with a
firearm . . .[and][w]e had information that there may also be a grenade involved
downstairs as well."2 Defense counsel objected on hearsay grounds because the
information came from Alyssa, whom the marital privilege prevented from
testifying.3 The court overruled the objection because the State offered the
testimony for the nonhearsay purpose of explaining the safety precautions taken
by the officers responding to the scene.4
Defense counsel did not request a limiting instruction for Officer O'Hara's
testimony.
During closing arguments, neither the prosecutor nor defense counsel
discussed Officer O'Hara's testimony about Vargas possibly being armed with a
gun and a grenade. The prosecutor argued Vargas constructively possessed the
2 Report of Proceedings(RP)(Mar. 21, 2017) at 457, 464.
3 Defense counsel also objected on grounds of relevance and undue
prejudice. The court overruled those objections as well.
4 By the time Vargas was arrested, police officers had barricaded the
basement, obtained a search warrant for the house, and called in a SWAT team.
2

No. 76951-1-1/3
firearms found in his house. In response, defense counsel argued Vargas did not
have constructive possession and the State failed to prove its case.
The jury found Vargas guilty of seven counts of unlawful possession of a
firearm.
Vargas appeals.
ANALYSIS
Ineffective Assistance of Counsel
Vargas argues his counsel's performance was constitutionally deficient
because she did not request a limiting instruction for hearsay statements admitted
for a nonhearsay purpose. Although Vargas did not raise this issue in the trial
court, we may consider his claim for the first time on appeal because ineffective
assistance of counsel is an issue of constitutional magnitude.5 A claim of
ineffective assistance of counsel is a mixed question of law and fact we review de
novo.6
The defendant bears the burden of proving ineffective assistance of
counse1.7 First, the defendant must prove his counsel's performance was
deficient.8 Second, the defendant must prove his counsel's deficient performance
5 State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
6 State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009).
7 State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260(2011)(quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)).
8 Id. at 32(quoting Strickland, 466 U.S. at 687).
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No. 76951-1-1/4
prejudiced his defense.9 Failure to prove either deficiency or prejudice ends the
inquiry.1°
A limiting instruction restricts the purposes and scope for which a jury
considers evidence.11 ER 105 requires "[w]hen evidence which is admissible as to
one party or for one purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly."
Vargas contends that Officer O'Hara's testimony was inadmissible hearsay.
Hearsay is an out of court statement offered in evidence to prove the truth of the
matter asserted.12 Officer O'Hara based his testimony on Alyssa's out of court
statements about Vargas possibly being armed with a gun and a grenade. If
offered into evidence for its truth, then his testimony would be hearsay. Because it
was offered for another purpose, it is not.
Vargas was entitled to a limiting instruction because no hearsay exception
applied, and the evidence was admitted for the nonhearsay purpose of explaining
police safety precautions.13 Because Vargas was entitled to a limiting instruction,
9 Grier, 171 Wn.2d at 33 (quoting Strickland, 466 U.S. at 687).
19 State v. Woods, 198 Wn. App. 453, 461, 393 P.3d 886 (2017).
11 See ER 105.
12 ER 801(c).
13 The State moved in limine to admit Officer O'Hara's testimony under the
hearsay exception for an excited utterance, but the court denied the motion. The
State did not appeal the trial court's ruling and does not argue any other
exceptions apply.
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No. 76951-1-1/5
his counsel's performance was "deficient if it [fell]'below an objective standard of
reasonableness.'"14
A defendant must overcome "a strong presumption that counsel's
performance was reasonable.'"15 When defense counsel's decisions "can be
characterized as legitimate trial strategy or tactics, performance is not deficient."16
To convict Vargas, the State had to prove he had actual or constructive
possession of a firearm.17 Actual possession entails "personal custody" or
"actual physical possession."15 Constructive possession entails "dominion and
control over the firearm or over the premises where the firearm was found."19 The
State focused on constructive possession and implicitly admitted in closing that
Vargas lacked actual possession of any firearms:
And defense has asked a series of questions during this case, well
did anybody see Aaron Vargas holding a firearm? And no, no, we
didn't. The officers saw him come out of the house. They told him to
come out unarmed. He didn't come out with a handgun. And when
he came out of the house, he didn't have a weapon on him.
Possession is not whether I am holding something.
Possession is I can possess something because it's in my
house. . . .
14 Grier, 171 Wn.2d at 33(quoting Strickland, 466 U.S. at 688).
15 Id. (quoting Kvllo, 166 Wn.2d at 862).
16 Id. (quoting Kyllo, 166 Wn.2d at 863).
17 See RCW 9.41.040(1)(a); State v. Manion, 173 Wn. App. 610, 634, 295
P.3d 270(2013)("Possession of a firearm can be actual possession or
constructive possession.").
18 Manion, 173 Wn. App. at 634 (quoting State v. Staley, 123 Wn.2d 794,
798, 872 P.2d 502(1994)).
19 Id. (quoting State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21 (1990)).
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No. 76951-1-1/6
Proximity—construct[ive] possession, occurs when there is no
actual physical possession but there is dominion and control.
He doesn't have to hold the gun to possess it. No one has to
see him holding the gun for him to have possession or control over
it.[20]
Defense counsel pressed five of the State's witnesses during cross-
examination to admit they never saw Vargas physically possess a firearm. She
also closely questioned officers about whether they found Vargas's fingerprints or
DNA on any guns in his house. In addition, defense counsel objected to Officer
O'Hara's hearsay testimony, in part, on Vargas's lack of actual possession.
[A]llowing information that Mr. Vargas was armed with a firearm, in
possession of a firearm, is a backdoor way of getting in information
that I don't think any of us actually know. It's not before the [c]ourt,
and there is no evidence that will be put forward that he was actually
in possession of a firearm.[211
Defense counsel began her closing argument by explaining that Vargas
never physically possessed a gun.
There is no dispute that Mr. Vargas did not have actual
possession of any of those guns. Every witness who I asked, you
never saw Mr. Vargas with the gun in his hand, they agreed with me.
There is no evidence that Mr. Vargas was ever in possession, actual
possession, of any of those guns.[22]
Defense counsel also argued the absence of proof about Vargas actually
possessing firearms suggested that he could not have constructively possessed
20 RP (Mar. 24, 2017) at 956-58.
21 RP (Mar. 21, 2017) at 461.
22 RP (Mar. 24, 2017) at 963.
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No. 76951-1-1/7
firearms either.23 She further argued the State failed to show constructive
possession in part because no police officer found Vargas's fingerprints or DNA on
the upstairs safe or on the guns inside. This tactic linked the questions about
Vargas's actual possession of a firearm to his constructive possession of a
firearm.
A limiting instruction would have reminded the jury about testimony that,
according to defense counsel, served as a "backdoor way of getting in
information"24 suggesting actual possession of a firearm.25 Because defense
counsel's trial theory connected her client's lack of constructive possession to his
lack of actual possession, a limiting instruction could have undermined this theory
by reminding the jury about Officer O'Hara's testimony. Defense counsel made a
legitimate tactical decision.
Similarly, defense counsel in State v. Wafford did not request a limiting
instruction on inadmissible hearsay that spoke directly to his client's guilt.26 There,
an old video showed an interview with the victim discussing whether the defendant
had molested her at the time.27 In the video, the victim did not actually describe an
act of sexual contact with the defendant, so the trial court excluded the video as
23 Id. at 964 ("The first factor that [the elements for constructive possession]
lays out is whether he had the immediate ability to take actual possession of one
of those firearms. So let's talk about that.").
24 RP (Mar. 21, 2017) at 461.
25 See, e.q., Woods, 198 Wn. App. at 462 ("[A] separate limiting
instruction. . . could serve as an unwanted reminder of damaging testimony.")
26 199 Wn. App. 32, 41-42, 397 P.3d 926 (2017).
27 Id. at 34.
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No. 76951-1-1/8
inadmissible under the child hearsay statute.28 During the trial and despite the trial
court's ruling, defense counsel explicitly referenced the video and the girl's lack of
an accusation against the defendant.29 As a result, the court allowed a portion of
the video to be shown to the jury.39 In the portion shown, the victim nodded her
head when asked if the defendant had ever exposed himself to her.31 Defense
counsel did not request a limiting instruction, and the jury convicted the
defendant.32 Because a limiting instruction would have prevented the defendant's
counsel from using the video to argue for his client's innocence, this court held that
not requesting an instruction was a legitimate trial tactic.33
Here, a limiting instruction could have undermined Vargas's theory of the
case by reminding the jury about inculpatory information.34 Not requesting a
limiting instruction was a legitimate trial tactic and did not constitute ineffective
assistance of counse1.35
28 Id. at 35.
29 Id. at 35, 41.
39 Id. at 36.
31 Id. at 40-41.
32 Id. at 36, 41.
33 Id. at 41-42.
34 Woods, 198 Wn. App. at 462.
35 Wafford, 199 Wn. App. at 41-42.
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No. 76951-1-1/9
Imposition of Fees
Vargas asks that the $200 criminal filing fee and $100 DNA fee imposed by
the trial court be stricken pursuant to State v. Ramirez.36 The State agrees that
remand is appropriate "to amend the judgment and sentence to strike the
improperly imposed [legal financial obligations].'"37
CONCLUSION
Because Vargas fails to prove that his defense counsel was deficient, we
need not address whether his counsel's decision prejudiced his trial, and therefore
affirm his conviction. We remand to the trial court to strike the DNA and criminal
filing fees in light of Ramirez.
Affirmed, remanded in part.
WE CONCUR:
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36 191 Wn.2d 732, 426 P.3d 714 (2018).
37 Appellant's Supp. Response to Motion for Reconsideration at 6 (quoting
id. at 735).
9