STATE v. DOMBROSKY, 27568-6-II (Wash.App. 1-17-2003)

No. 27568-6-IIThe Court of Appeals of Washington, Division Two.
Filed: January 17, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 01-1-01744-8 Judgment or order under review Date filed: 06/29/2001

Counsel for Appellant(s), Pattie Mhoon, Attorney at Law, 949 Market St. Ste 488, Tacoma, WA 98402-3600.

Counsel for Respondent(s), John Christopher Hillman, Pierce County Prosecuting Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.

BRIDGEWATER, J.

Robert Charles Dombrosky appeals his Pierce County conviction of first degree burglary, contending that (1) the evidence was not sufficient to support the jury’s verdict; (2) his trial attorney did not provide effective representation; (3) the trial court should have declared a mistrial when it learned that his attorney had a conflict of interest; (4) the court improperly admitted evidence of prior bad acts; and (5) the court improperly included in his offender score juvenile convictions that had washed out.[1] We find no errors with regard to the trial, but we agree that Dombrosky’s offender score is incorrect and remand for resentencing.

Facts
The victim of the burglary was Dombrosky’s wife, Shannon King. Despite a protection order entered in August, 2000, Dombrosky was present in her apartment on December 13, 2000. King’s neighbor, Clint Plummer, heard “a bunch of stuff being banged around” in her apartment, and about 10 minutes later, a female yelled “Call the police.” The female also told someone “to get out, that she did not want them there.” 2 Report of Proceedings (RP) at 143-45. Plummer called 911, and Pierce County Sheriff’s Deputy Erik Clark responded. He initially got no answer at King’s apartment, and so checked with Plummer to confirm his information. He then obtained permission for a forced entry of King’s apartment and waited for a backup officer. However, before the second officer arrived, King opened the door. She had blood running from her nose, and the left side of her face was swollen. She was crying, and “very visibly upset[.]” 2 RP at 155. Deputies Clark and Robert Blumenschine entered the apartment and determined that no one besides King was present. King told Clark that she had had an argument with “Robbie” who had run out the back door of the apartment. She told Blumenschine that she had gone out to dump some trash, and when she returned, Dombrosky was there. She told him that he was not supposed to be there, but he said he wanted to get his “stuff” and headed for the bedroom.

When King tried to block him, he grabbed the back of her hair, forced her head down, and kneed her in the face.

At trial, King recanted her statements to the police, asserting that she had acquired her injuries in a fight with her roommate, Deena Cooper. She said that Dombrosky had broken up the fight. He had fled when the police came because of the protection order. King explained that she had lied to the police because she was afraid that she would get into trouble for having contact with Dombrosky.

The jury found Dombrosky guilty as charged, and the court sentenced him to a standard range sentence of 116 months, based on an offender score of nine.

Discussion
Dombrosky first contends that the evidence was insufficient to prove that he entered or remained in King’s apartment unlawfully, as required for first degree burglary. RCW 9A.52.020.[2] Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, it is enough to permit any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). A claim of insufficiency admits the truth of the State’s evidence and requires that all reasonable inferences therefrom be drawn in favor of the State and interpreted most strongly against the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence is accorded equal weight with direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980). In reviewing the evidence, this court must give deference to the trier of fact, who resolves conflicting testimony, evaluates the credibility of witnesses, and generally weighs the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992). Thus, the credibility determinations of the trier of fact are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Dombrosky bases his claim on the assertion that he was living at King’s apartment at her invitation. This argument fails on two grounds. First, there was evidence, which the jury was entitled to accept, that King had not invited him to the apartment, that he had entered without her knowledge, and did not leave when she asked him to. Second, even if King did invite him to stay with her, he was not lawfully there when she was there because the protection order prohibited contact with her. See State v. Dejarlais, 88 Wn. App. 297, 302-03, 944 P.2d 1110 (1997), aff’d, 136 Wn.2d 939 (1998) (victim’s consent is not a defense to violation of a protective order). Dombrosky next claims that he was denied the effective assistance of counsel. Specifically, he argues that his attorney should have proposed instructions on the lesser included crimes of residential burglary, fourth degree assault and violation of a protection order. To prevail on a claim of ineffective assistance, the defendant must show that counsel’s performance was deficient, and he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 743 P.2d 816 (1987). Counsel’s decisions as to trial strategy or tactics do not constitute ineffective assistance, and there is a strong presumption that counsel was effective and exercised reasonable professional judgment. State v. Red, 105 Wn. App. 62, 66, 18 P.3d 615 (2001) (citing State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177
(1991), cert. denied, 506 U.S. 856 (1992)), review denied, 145 Wn.2d 1036
(2002).

A defendant is entitled to an instruction on a lesser included offense if (1) each of the elements of the lesser offense is a necessary element of the offense charged, and (2) the evidence supports an inference that the lesser crime was committed. State v. Pacheco, 107 Wn.2d 59, 68-69, 726 P.2d 981 (1986); State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382
(1978). The existence of a protection order is not an element of first degree burglary. See RCW 9A.52.020. Violation of such an order clearly is not a lesser included offense of first degree burglary. Fourth degree assault is a lesser included offense of first degree burglary. State v. Hummell, 68 Wn. App. 538, 541, 843 P.2d 1125 (1993). However, Dombrosky cannot satisfy the second prong of Pacheco and Workman. In order to satisfy that prong, there must be evidence supporting an inference that the defendant is guilty of the lesser offense instead of the greater offense. State v. Bergeson, 64 Wn. App. 366, 369, 824 P.2d 515 (1992). As noted above, by virtue of the protection order, Dombrosky was unlawfully in King’s apartment at the time of the assault. On the evidence in this case, the jury could not find that he had committed only a fourth degree assault. He was not entitled to an instruction on the lesser crime. As to the failure to propose a residential burglary instruction, Dombrosky argued adamantly that he was living with King and therefore had not entered the apartment unlawfully. It was a reasonable strategy to rely on this defense and not present the jury with an alternative crime. Dombrosky has established neither error nor prejudice in counsel’s performance. Pro se, Dombrosky contends that the court should have declared a mistrial when it discovered that his attorney had also represented Deena Cooper. A defendant claiming a conflict of interest on appeal must establish not only a conflict but also that the conflict adversely affected trial counsel’s representation. Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 1242-45, 152 L.Ed.2d 291 (2002). The record indicates that defense counsel briefly represented Cooper at a pretrial conference on an unrelated matter. That brief contact occurred almost a year before the incident at issue here. Consequently, defense counsel could not have acquired any information prejudicial to Dombrosky. Neither, contrary to Dombrosky’s contention, did this brief representation give counsel any motive to limit his cross-examination of Cooper. Indeed, the record indicates that counsel’s cross-examination was thorough. There was no basis for a mistrial here. Also pro se, Dombrosky argues that the trial court improperly admitted evidence of prior bad acts, in violation of ER 404(b). Specifically, Dombrosky challenges the court’s rulings admitting testimony by King that he had spent time in jail, and that there had been other incidents of domestic violence between them. As to the time in jail, the court permitted evidence of a crime of dishonesty, and that decision has not been challenged. Thus, the jury knew Dombrosky had spent time in jail without King’s testimony, and he was not prejudiced by the testimony. The incidents of domestic violence were admissible to explain why King might have changed her account of the incident at issue here. See State v. Grant, 83 Wn. App. 98, 106-08, 920 P.2d 609 (1996). The court properly balanced probative value and potential prejudice, and its decision is supported by the record.[3]

Finally, Dombrosky contends that the trial court incorrectly calculated his offender score because it included four juvenile convictions that occurred before he was 15. Dombrosky, who was born in 1969, committed these crimes in 1982, before the 1997 amendment to the SRA that eliminated the juvenile conviction wash out provision. That amendment is not retroactive, and the passage of the “timing statute”[4] in 2000 did not revive Dombrosky’s juvenile convictions for purposes of calculating his offender score. State v. Smith, 144 Wn.2d 665, 674-75, 30 P.3d 1245, 39 P.3d 294 (2001); State v. Dean, 113 Wn. App. 691, 698, 54 P.3d 243
(2002).

The trial court erred in including those 1982 convictions. Dombrosky’s sentence is accordingly vacated, and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG and MORGAN, JJ., concur.