State Of Washington, Respondent V. Jacob Dalton Johansen, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JACOB DALTON JOHANSEN,
Appellant.
No. 72922-5-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 27, 2016
Leach, J. — Jacob Johansen appeals his conviction for second degree
assault with an aggravating circumstance of domestic violence. 	He challenges
the trial court's admission of evidence of his 	prior acts of domestic violence
against the victim. 	He also claims that his trial counsel provided ineffective
assistance when 	he 	proposed 	a 	jury instruction 	that contained 	an 	improper
comment on the evidence. 	Without deciding if the trial court improperly admitted
evidence of Johansen's earlier acts of domestic violence, we conclude that any
error was 	harmless 	because the outcome of the trial 	could 	not 	have 	been
materially 	affected 	by 	the 	challenged 	evidence. 	And 	we 	conclude 	that
Johansen's 	counsel's 	performance 	was 	not 	deficient 	where 	the 	proposed

No. 72922-5-1 / 2
instruction at issue was a standard pattern jury instruction1 that no court had
concluded was improper until after the end of Johansen's trial. We affirm.
FACTS
Late one evening in December 2013, Johansen and his friend Kyle Wilson
returned to the home Johansen shared with Alexandra Boring and their young
son. 	Johansen and 	Boring began to argue. 	Boring testified that Johansen
choked her twice while they were in the bedroom. 	The second time he choked
her, she urinated on herself. 	When he let go, she immediately vomited near the
bed and then got back up. 	Johansen pushed her onto a computer desk. 	She
went back to the bed, and he broke a picture frame on top of her head. 	Then he
left the house. 	Boring went out to where Johansen and Wilson were loading
Johansen's car and demanded the house key, which he gave her.
Johansen testified that when he and Wilson arrived at the house, Boring
came to the door angry, yelled at him, and threw things while he packed his bags
and left without touching her. 	Wilson testified that Boring met them at the door
and started yelling at Johansen, asking him where he had been all day and if he
was cheating on her. 	He testified that Boring threw things when she got mad at
Johansen. 	He testified that during their argument, he had gone in and out of the
house several times and had heard only Boring yelling at Johansen and nothing
1 11A Washington Practice: Washington Pattern Jury Instructions:
Criminal 300.17, at 719 (3d ed. 2008) (WPIC).

No. 72922-5-1 / 3
more. Wilson also testified that when 	Boring and Johansen came out of the
room, Boring was crying but appeared unharmed.
After the incident, Boring called her mother, Rhonda Boring. 	Rhonda told
her that during Boring's exchange with Johansen, his phone had pocket-dialed
her father, Scott Boring. 	Due to the pocket dial, Rhonda had called 911 and told
Boring to call 911. 	Boring "thought about it for a minute and then I figured she
already did, so I might as well."
Boring's father, Scott, testified that after the incident, he drove to Boring's
home. 	On the way, he spoke with Johansen on the phone, who reported that he
and Boring 	had 	had 	a 	violent fight. 	When 	Scott arrived 	at the house, 	he
immediately 	went 	inside, 	where 	he 	found 	Boring 	crying. 	She 	had 	red
compression 	marks on her neck, 	and he found 	a broken 	picture frame 	and
broken glass on the bed.
When police arrived, Officer Jay West saw that Boring was distraught and
had redness on her neck. 	West also saw that she was limping, her clothes were
disheveled, and her pants were wet. 	In the bedroom he observed a computer
monitor knocked over, vomit residue on the carpet, and a broken frame on the
bed. 	While Boring told West her story, she told him that she would not make a
formal statement because she was afraid Johansen would kill her.

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Rhonda arrived and observed that Boring appeared upset, had wet pants,
and had bruises on her neck. 	She later took Boring to the hospital to address a
leg injury from the incident that left Boring in a knee brace.
Detective David Shields spoke with Johansen the day after the incident.
Johansen denied having physical contact with Boring. 	Shields met with Boring
two days after the incident and saw a brace on her right knee, some red marks
and scrapes on her neck, scratches on her leg, and bruising near her left eye and
on the right side of her neck. 	She was tearful when she described the incident
with Johansen to him. 	Shields is a domestic violence detective. 	Based on his
personal experience responding to calls involving strangulation, he testified that
the effects of strangulation can include redness on the neck, bruising, and loss of
bladder control.
The 	State 	charged 	Johansen 	with 	second 	degree 	assault 	involving
domestic violence, with the aggravating circumstance that the assault was part of
an ongoing pattern of psychological, physical, or sexual abuse of the victim over
a prolonged period of time.
At trial, the State sought to admit testimony alleging that Johansen had
engaged 	in 	domestic violence against Boring for 	several years. 	The State
contended that the court should admit this evidence because it showed that "this
is how Mr. Johansen acts." 	Johansen objected, asserting that this constituted

No. 72922-5-1 / 5
propensity evidence under ER 404(b). 	The trial 	court concluded 	that the
testimony was admissible, reasoning that because Johansen would argue that
Boring fabricated an assault, the jury needed information about earlier incidents
of domestic violence.
The trial court permitted Boring to testify that Johansen was violent during
the relationship and that his violence toward her escalated, but the court limited
testimony about specific details of the alleged violence. 	She testified that he
often choked her. 	Her parents testified that he was violent toward their daughter.
The court instructed the jury that it could consider this evidence only for the
purpose of evaluating Boring's credibility.
The jury convicted Johansen, and the trial court imposed an exceptional
sentence. 	Johansen appeals.
STANDARD OF REVIEW
This court reviews a trial court decision to admit or exclude evidence for
abuse 	of discretion. 	We 	reverse 	only if the 	trial court 	made 	a 	manifestly
unreasonable 	decision 	or 	based 	its 	decision 	upon 	untenable 	grounds 	or
reasons.2
2 State v. Gunderson, 	181 	Wn.2d 916, 921-22, 337 P.3d 1090 (2014)
(quoting State v. Brown, 132 Wn.2d 529, 572, 940 P.2d 546 (1997)).
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No. 72922-5-1 / 6
ANALYSIS
If a trial court improperly admits evidence of a defendant's earlier bad
acts, this "error is harmless if the evidence is of minor significance compared to
the 	overall 	evidence 	as 	a 	whole."3 	But 	this 	court 	must 	reverse 	if, 	"'within
reasonable probabilities, had the error not occurred, the outcome of the trial
would have been materially affected.'"4
Here, the trial court instructed the jury that it could consider the testimony
of Johansen's 	earlier 	domestic 	violence 	against 	Boring for 	the 	purpose 	of
establishing her credibility. 	Johansen asserts that Boring never gave conflicting
statements or testimony and thus no relevant purpose existed to justify admitting
the evidence. 	Johansen also asserts that the prejudicial effect of that evidence
greatly outweighed any probative value it offered.
We 	do 	not 	decide 	if the 	trial court 	improperly 	admitted 	evidence 	of
Johansen's prior acts of domestic violence because any error in admitting the
evidence was 	harmless. 	Johansen 	argues that 	the 	prejudicial effect of the
evidence of his prior acts necessarily affected the outcome of his trial because
the jury decided the case by weighing the conflicting testimony of Johansen and
3 State v. 	Evervbodvtalksabout, 	145 Wn.2d 456, 468-69, 	39 P.3d 294
(2002).
4 State v. Gresham, 173 Wn.2d 405, 425, 269 P.3d 207 (2012) (internal
quotation marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d
951 (1986)).
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No. 72922-5-1 / 7
Boring. 	But the State presented the jury with 	substantial evidence besides
Boring's 	testimony. 	It 	presented testimony 	from 	both 	of her parents, the
responding officer, and the detective that interviewed her. 	Each observed red
marks or scratches on Boring's neck. Officer West testified that Boring appeared
to have urinated on herself. 	He also saw vomit residue next to the bed, broken
glass and a picture frame in the bed, and a computer monitor turned over. 	All
this evidence corroborated Boring's testimony. 	The State played the 911 tape to
the jury and admitted photographs of Boring's neck. 	The defense presented
testimony from Johansen and Wilson denying the incident, but those accounts
revealed inconsistencies with Johansen's earlier statements. 	The record thus
does 	not show 	with 	reasonable 	probability that 	any 	improper admission 	of
evidence of Johansen's earlier acts of domestic violence materially affected the
outcome of the case. 	Thus, any error was harmless.
Johansen 	further 	argues 	that 	his 	trial 	counsel 	provided 	ineffective
assistance when he proposed an instruction that impermissibly commented on
the evidence. 	The Sixth Amendment to the United States Constitution and article
I, 	section 	22 of the Washington 	Constitution guarantee the 	right to effective
assistance of counsel.5 	To 	show that 	he 	received 	ineffective assistance of
counsel, Johansen must show that counsel's performance was deficient and that
5 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
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No. 72922-5-1 / 8
such deficient performance prejudiced him.6 	To prove deficient performance he
must show that his counsel's representation "'fell below an objective standard of
reasonableness based on consideration of all the circumstances.'"7
Johansen asserts that his counsel's performance was deficient because
the 	jury 	instruction 	he 	proposed 	constituted 	a 	comment 	on 	the 	evidence.
Johansen and the State both 	proposed jury instructions to the court for the
aggravated sentence of domestic violence based on the accepted WPIC jury
instruction. 	Johansen's proposed instruction told the jury that for it to find that the
crime constituted an aggravated domestic violence offence, the State must prove
beyond a reasonable doubt:
(1) 	That 	the 	victim 	and 	the 	defendant 	were 	family 	or
household members; and
(2) That the 	offense was 	part of an 	ongoing 	pattern 	of
psychological, physical, or sexual abuse of the victim manifested by
multiple incidents over a prolonged period of time. 	An "ongoing
pattern 	of 	abuse" 	means 	multiple 	incidents 	of 	abuse 	over 	a
prolonged 	period 	of time. 	The term 	"prolonged 	period 	of time"
means more than a few weeks.
The 	trial court 	gave this 	instruction 	to the jury in October 2014. 	In 2015,
Washington's 	Supreme Court ruled in 	State v. 	Brush8 that the definition of
"prolonged 	period 	of time" 	in the 	jury 	instruction 	was 	an 	improper judicial
6 See State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995); see also
Strickland, 466 U.S. at 687.
7 State v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999) (quoting
State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995)).
8 183 Wn.2d 550, 558-59, 353 P.3d 213 (2015).
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No. 72922-5-1 / 9
comment on the evidence. 	The court held that what was a prolonged period of
time presented a factual inquiry to be decided by the jury.9 	It concluded that this
prejudiced the defendant, warranting reversal ofan exceptional sentence.10
But we conclude that State v. Studd11 forecloses Johansen's assertion
that his counsel provided deficient representation. 	The court in Studd reviewed
its earlier opinion in State v. LeFaber.12 	There, it concluded that the generally
accepted instruction for self-defense, WPIC 16.02, was erroneous.13 	In Studd,
counsel for one of the defendants had requested the same instruction at trial.
After the Supreme Court published LeFaber, that defendant appealed, asserting
ineffective assistance of counsel.14 	The Studd court held that because it had not
decided LeFaber at the time of the defendant's trial, "his counsel can hardly be
faulted for requesting a jury instruction based upon a then-unquestioned WPIC
16.02."15 	Because the defendant's counsel's performance could not have been
deficient, the Studd court concluded that the defendant's argument failed.16
9 Brush, 183Wn.2dat559.
10 Brush, 183 Wn.2d at 559-60.
11 137Wn.2d533, 551,973P.2d 1049(1999).
12 128 Wn.2d 896, 913 P.2d 369 (1996), abrogated by State v. O'Hara,
167 Wn.2d 91, 101-02, 217 P.3d 756 (2009).
13 LeFaber, 128 Wn.2d at 902-03.
14 Studd, 137Wn.2dat551.
15 Studd, 137Wn.2dat551.
16 Studd, 137 Wn.2d at 551; McFarland, 127 Wn.2d at 334-35 (citing State
v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)).
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No. 72922-5-1/10
Because Johansen fails to cite any case that would have put his counsel
on 	notice of the 	improper nature 	of the 	challenged 	instruction and 	fails to
distinguish Studd,17 his argument fails.
CONCLUSION
Without 	deciding 	if 	the 	trial 	court 	improperly 	admitted 	evidence 	of
Johansen's earlier acts of domestic violence, we conclude that any alleged error
was harmless because Johansen has not shown, within reasonable probabilities,
that admission of this evidence materially affected the outcome of this case. 	And
because Johansen's counsel presented a generally accepted WPIC instruction
before any court had determined 	that that instruction constituted an improper
comment on the evidence, we conclude that his counsel's performance was not
unreasonable and thus not deficient. We affirm.
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17 See State v. Kvllo, 166 Wn.2d 856, 866, 215 P.3d 177 (2009) (Where
several cases should have indicated to counsel that a pattern instruction was
flawed, counsel should have been aware of those cases.).
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