No. 49969-6-IThe Court of Appeals of Washington, Division One.
Filed: November 25, 2002 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 011089290, Hon. Michael C. Hayden, February 1, 2002, Judgment or order under review.
Counsel for Appellant(s), Jennifer L. Dobson, 810 3rd Ave Ste 320, Seattle, WA 98104.
Counsel for Respondent(s), Robin E. Sheridan, W554 King County Courthou, 516 3rd Ave, Seattle, WA 98104-2312.
PER CURIAM.
Print Gant appeals his conviction for domestic violence felony violation of a court order. He contends that the trial court erred by failing to instruct the jury that evidence of Gant’s prior convictions for violations of no-contact orders could only be considered by the jury for limited purposes. We conclude that because Gant did not request this instruction, any error has been waived and Gant was not prejudiced by the omission of this instruction. Nor was Gant’s counsel ineffective for failing to request a limiting instruction. There is no reasonable possibility that the outcome would have been different if a limiting instruction been given.
Gant was charged with domestic violence felony violation of a court order after he was arrested on the morning of September 11, 2001 at the apartment of his girlfriend, Emma Burrell. Gant and Burrell had a tumultuous relationship and since September of 1997, there was a no-contact order in effect between the two.[1] At trial, Gant’s defense was that because he had been arrested several months before for violating the no-contact order and those charges had been dropped, he believed that there was no longer a no-contact order in effect between him and Burrell. The jury convicted Gant as charged and this appeal followed.
To be guilty of domestic violence felony violation of a court order, the defendant must know of the existence of the order of protection. RCW 26.50.110(1); State v. Philips, 94 Wn. App. 829, 833, 974 P.2d 1245
(1999). Under the “to convict” instruction given in this case, the State had to prove the following elements:
(1) That on or about September 11, 2001, the defendant willfully had contact with Emma Burrell; (2) That such contact was prohibited by a no-contact order; (3) That the defendant knew of the existence of the no-contact order; (4) That the defendant had been convicted at least twice previously for violating a no-contact order; (5) That the acts occurred in the State of Washington.[2]
Gant’s prior convictions for violations of no-contact orders are an element of the crime and the State sought to introduce eight of Gant’s prior convictions for violations of no-contact orders. Pretrial, the court ruled that all eight convictions were admissible, because they are a “predicate to conviction” and relevant to the issues of willful violation and knowledge.[3] The trial court also concluded that although the State only had to prove the existence of two prior convictions, the admission of evidence of more than two convictions was not overly prejudicial and was probative of the issue of knowledge given the anticipated defense was that Gant thought the no-contact order was no longer in effect.[4] Upon learning that the State had certified copies of prior judgments for only four of the convictions, the court ruled that only those four convictions were admissible in the State’s case in chief. The remaining four convictions would be admissible if Gant asserted the defense that he lacked knowledge of the existence of a no-contact order.[5] Gant asserted this defense and accordingly, the court allowed the admission of the four remaining convictions as rebuttal.
In his appeal, Gant does not contest the admissibility of his prior convictions to prove an element of the crime or to rebut his claim of lack of knowledge. Instead, he argues a limiting instruction should have been given, stating that the prior convictions should be considered only for these two purposes. Specifically, he claims that the jury may have considered the prior convictions as evidence that Gant willfully had contact with Burrell — the first element of the “to convict” instruction. Gant’s argument fails for two reasons. First, because he admitted that he willfully had contact with Burrell, Gant was not prejudiced by the absence of a limiting instruction. The only disputed issue in the case was whether Gant knew of the existence of a no-contact order the third element of the “to convict” instruction. Second, although Gant would have been entitled to a limiting instruction had he requested it under ER 105,[6] Gant did not request a limiting instruction at trial. Therefore, this issue was not preserved for appeal. See State v. Newbern, 95 Wn. App. 277, 295-96, 975 P.2d 1041 (1999) (“A party’s failure to request a limiting instruction constitutes a waiver of that party’s right to such an instruction and fails to preserve the claimed error on appeal”).[7] Alternatively, Gant contends that reversal of his conviction is warranted because his counsel failed to request a limiting instruction and was therefore, ineffective. To succeed on his claim of ineffective assistance of counsel, Gant must establish that (1) his counsel’s performance fell below an objective level of reasonableness; and (2) his counsel’s errors prejudiced the result of the proceeding, rendering it unreliable. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the second prong of this test, Gant must show that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991).
In reviewing a claim of ineffective assistance, we engage in a strong presumption that the defendant received effective representation. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). As explained above, Gant challenged the State’s proof only on the issue of whether he knew that the no-contact order was in effect, and his prior convictions were relevant to this issue. He admitted he had contact with Burrell. He does not dispute the prior convictions or their admission at trial. Given these facts, it appears that a limiting instruction informing the jury that it could not consider the prior convictions in its consideration of other issues would have served no purpose here. Additionally, the failure to request a limiting instruction is not considered ineffective where it may be presumed that counsel decided not to emphasize potentially unflattering evidence. See State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447 (1993). Thus, we cannot conclude that tactical decisions rendered the representation ineffective. Moreover, even if Gant could show that the failure to request a limiting instruction was ineffective assistance, there is no reasonable possibility that a limiting instruction would have altered the outcome of his case. Again, because Gant did not challenge the evidence, except as to his knowledge of the no-contact order, and his prior convictions were admitted and properly considered for that purpose, there is no reasonable probability that a limiting instruction would have resulted in a different outcome.
Affirmed.