* State of Washington v. Antwan Devon Conway

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON,
Respondent,
v.
ANTWAN D. CONWAY,
Appellant.
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No. 38198-6-III
PUBLISHED OPINION
STAAB, J. — Following a series of incidents at the Spokane Amtrak station where
Antwan Conway allegedly attacked three different individuals, the State charged Conway
with one count of second degree assault, one count of third degree assault, and one count
of fourth degree assault. At trial, defense counsel admitted to the fourth degree assault
and also admitted that the other crimes amounted to fourth degree assault. However,
counsel did not request an instruction for a lesser-included offense. The jury found
Conway guilty of second and fourth degree assault but acquitted him of third degree
assault.
On appeal, Conway argues that his trial attorney was constitutionally ineffective
for failing to request an instruction for the lesser-included offense of fourth degree assault
FILED
OCTOBER 27, 2022
In the Office of the Clerk of Court
WA State Court of Appeals Division III
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No. 38198-6-III
State v. Conway
2
with regard to the second degree assault conviction. We affirm Conway’s conviction and
hold that counsel’s strategic decision to forgo a lesser-included instruction was not
deficient. To the extent our opinion conflicts with Division Two’s opinion in State v.
Classen, 4 Wn. App. 2d 520, 422 P.3d 489 (2018), we decline to follow it. Conway did
not receive ineffective assistance of counsel.
BACKGROUND
In the early morning hours, Conway hailed a cab outside the Spokane Amtrak
station and requested a ride to Spokane Valley. After determining that Conway did not
have money to pay for the trip, the cab driver asked Conway to exit the vehicle. Conway
refused for more than five minutes to exit the cab, finally doing so when the cab driver
called Crime Check to inform them he had a passenger who was refusing to get out of his
vehicle. Conway got out of the vehicle, walked over to the driver’s side, and punched the
cab driver three or four times through the rolled down window. The cab driver rolled up
the window and locked his door, and Conway proceeded to open the sliding door behind
the driver and hit him about 10 more times. The cab driver then drove away.
Conway next entered the Amtrak station and sat down. The security guard
informed him that he could not wait in the building unless he had a ticket to travel and
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No. 38198-6-III
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3
that if he refused to leave, the guard would call the police. The security guard reached for
his phone, and Conway struck him. The guard fell to the ground and called for help.
An Amtrak employee saw the security guard fall to the ground and started to
approach, but Conway punched the employee in the face. Conway then returned to the
security guard and continued to beat him. Police subsequently arrived and detained
Conway.
After police arrived, the Amtrak employee realized his tooth had been chipped.
The employee went to his dentist about three weeks later. It was later determined from an
x-ray that although the chipped tooth was still vital, the crown of the tooth had been
fractured.
The State charged Conway with one count of second degree assault for his actions
against the Amtrak employee, one count of third degree assault for his actions against the
security officer, and one count of fourth degree assault for his actions against the cab
driver. The case proceeded to a jury trial. Prior to the commencement of trial, the trial
court asked defense counsel if he planned to include instructions for lesser-included
offenses. Defense counsel confirmed that he did not.
At trial, along with the Amtrak employee’s testimony regarding his chipped tooth,
the employee’s dentist testified that he x-rayed the tooth and determined it was fractured.
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No. 38198-6-III
State v. Conway
4
The dentist also testified that the x-ray did not reveal any damage to the root or bone
structure, and the fracture was limited to the exposed part of the tooth. The Amtrak
employee also testified that he waited to get medical attention because his tooth was not
hurting and he thought he could wait.
The State presented video evidence of each of the assaults.
During closing argument, defense counsel admitted that Conway had committed
the fourth degree assault and also admitted that the State had presented sufficient
evidence to establish fourth degree assault with regard to the other two felony charges,
but maintained that the State had not established proof of second or third degree assault.
Defense counsel argued that the State had not shown that the victim of the alleged third
degree assault was an employee of a transit company and had not shown that the victim of
the alleged second degree assault suffered substantial bodily injury, both of which are
necessary elements of the respective felonies.
The jury found Conway guilty of the second and fourth degree assault charges but
not guilty of the third degree assault charge.
Conway appeals, arguing that his trial counsel was ineffective for failing to request
a lesser-included instruction on fourth degree assault.
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No. 38198-6-III
State v. Conway
5
ANALYSIS
Criminal defendants have a constitutionally guaranteed right to effective assistance
of counsel. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Lopez, 190
Wn.2d 104, 115, 410 P.3d 1117 (2018). A claim of ineffective assistance of counsel is an
issue of constitutional magnitude that may be considered for the first time on appeal.
State v. Nichols, 161 Wn.2d 1, 9, 162 P.3d 1122 (2007). Claims of ineffective assistance
of counsel are reviewed de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310
(1995).
A defendant bears the burden of showing (1) that his counsel’s performance fell
below an objective standard of reasonableness based on consideration of all the
circumstances and, if so, (2) that there is a reasonable probability that but for counsel’s
poor performance, the outcome of the proceedings would have been different. State v.
McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If either element is not
satisfied, the inquiry ends. State v. Kyllo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009).
In reviewing the record for deficiencies, there is a strong presumption that
counsel’s performance was reasonable. McFarland, 127 Wn.2d at 335. The burden is on
a defendant alleging ineffective assistance of counsel to show deficient representation.
Id. The reasonableness of counsel’s performance is to be evaluated from counsel’s
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No. 38198-6-III
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perspective at the time of the alleged error and in light of all the circumstances.
Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986).
When counsel’s conduct can be characterized as legitimate trial strategy or tactics,
performance is not deficient. Kyllo, 166 Wn.2d at 863.
A decision by defense counsel to forgo an instruction on a lesser-included offense
may be a legitimate trial tactic. Classen, 4 Wn. App. 2d at 540. Both the defendant and
the State have the right to present an instruction for a lesser-included offense if all of the
requirements have been met. State v. Witherspoon, 171 Wn. App. 271, 291, 286 P.3d 996
(2012), aff’d, 180 Wn.2d 875, 329 P.3d 888 (2014). “The inclusion or exclusion of a
lesser included offense is a tactical decision, for which this court grants significant
latitude to defense attorneys.” Id.
Conway argues that defense counsel’s failure to request an instruction for the
lesser-included offense of fourth degree assault with regard to his second degree assault
charge was ineffective assistance of counsel. In support of this position, Conway points
to Classen. In Classen, the defendant was charged with several felonies, including two
counts of second degree assault. At trial, defense counsel did not seek lesser-included
instructions on fourth degree assault. During closing argument, counsel conceded that
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No. 38198-6-III
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Classen was “‘guilty of assault,’” but rhetorically asked “‘What kind of assault is it?
That’s the question.’” Id. at 530. The jury found Classen guilty as charged.
On appeal, Division Two of this court determined that defense counsel was
deficient for failing to request an instruction on fourth degree assault. While recognizing
that the choice to forgo requesting lesser-included instructions may be strategic,
“[d]etermining ‘whether an all or nothing strategy is objectively unreasonable is a highly
fact specific inquiry.’” Id. at 541 (quoting Hassan, 151 Wn. App. at 219). The court
went on to find that the failure to request a lesser-included instruction did not appear to be
a strategy at all, much less a reasonable strategy. Id. at 541-42. Because counsel
conceded that Classen was guilty of assault, and the jury was not provided with an
alternative, “counsel’s argument amounted to an admission that Classen committed
second degree assault.” Id. at 542.
By contrast, in Witherspoon, Division Two considered whether defense counsel
was deficient for pursuing an all-or-nothing strategy where the defendant was charged
with robbery and defense counsel did not request a lesser-included offense instruction for
theft. 171 Wn. App. at 290-91. At trial, defense counsel admitted that the defendant had
committed theft but argued that there was no robbery because there was no use or
threatened use of force. Id. at 292. The Witherspoon court determined that defense
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No. 38198-6-III
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counsel was not ineffective because defense counsel’s actions were a legitimate trial
tactic and “if the jury believed the defense theory of the case, it could have acquitted [the
defendant].” Id. The fact “[t]hat this strategy ultimately proved unsuccessful is
immaterial.” Id.
Applying this highly fact-specific inquiry to this case, defense counsel’s decision
to forgo an instruction on the lesser-included offense was not deficient because it was
clearly strategic. Several facts distinguish this case from Classen.
First, although defense counsel told the jury during closing argument that the State
had proved fourth degree assault, unlike Classen, the State charged Conway with second,
third, and fourth degree assault, so the jury had the definitions for all three types of
assault, including the fourth degree assault that defense counsel admitted Conway had
committed. Additionally, unlike Classen, defense counsel specified that he was admitting
that Conway was guilty of fourth degree assault, not just assault in general. Moreover,
like Witherspoon, defense counsel specified the alternative crime that he was conceding
Conway had committed.
Second, there was strong evidence in support of the State’s assault charges. The
State presented the jury with undisputed video evidence of Conway assaulting the
victims. There was no similar evidence in Classen. 4 Wn. App. 2d at 527-30. Because
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No. 38198-6-III
State v. Conway
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the State presented undisputed video evidence of the assaults, it was a legitimate trial
tactic for defense counsel to admit that Conway had committed fourth degree assault.
Third, even though an all-or-nothing strategy is legitimate regardless of success,
in this case it worked. The jury acquitted Conway of third degree assault even though
counsel acknowledged the assault.
Fourth, unlike in Classen, the trial court asked defense counsel if he planned to
include an instruction for a lesser-included offense, and defense counsel confirmed that
he was not planning to do so. This clearly demonstrates that the decision to forgo a
lesser-included instruction was deliberate and strategic.
Conway also fails to demonstrate that counsel’s performance prejudiced him.
There is no evidence that the proceedings would have been different but for counsel’s
decision to forgo a lesser-included instruction. Conway argues that because the State’s
evidence of substantial bodily harm was weak, had the jury been instructed on the lesser-
included fourth degree assault there was a reasonable probability that the jury would have
found Conway guilty of fourth degree assault. In support of his argument, Conway relies
on Classen’s statement that “[c]ourts have observed that ‘[w]here one of the elements of
the offense charged remains in doubt, but the defendant is plainly guilty of some offense,
the jury is likely to resolve its doubts in favor of conviction.’ ” Classen, 4 Wn. App. 2d at
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No. 38198-6-III
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541 (second alteration in original) (internal quotation marks omitted) (quoting State v.
Grier, 171 Wn.2d 17, 36, 246 P.3d 1260 (2011)) .
While persuasive at first glance, as the State points out in its briefing, a deeper
look reveals that the Washington Supreme Court specifically disagreed with the language
quoted in Classen. The sentence originally appeared in the Court of Appeals decision in
Grier and was then quoted by the Supreme Court to demonstrate how the Court of
Appeals had erred. Grier, 171 Wn.2d at 40. Despite the Supreme Court’s specific
repudiation of this language, Classen relies on it to support its holding that the decision in
Classen, to forgo lesser-included instructions, was deficient. For the same reason that the
quoted language did not support the Court of Appeals decision in Grier, it does not
support Conway’s position in this case.
Here the jury’s decision to acquit Conway of the third degree assault charge
despite counsel’s admission of an assault demonstrates that the jury was not inclined to
simply make a finding of guilt because Conway was clearly guilty of some offense.
Rather, it demonstrates that the jurors carefully weighed the elements of the charges in
their deliberations and the convictions were based on findings of the required elements.
Thus, Conway fails to demonstrate that but for counsel’s decision to forgo a lesser-
included instruction, the outcome would have been different.
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No. 38198-6-III
State v. Conway
11
Conway’s attorney was not constitutionally ineffective. Defense counsel made a
strategic decision to forego a lesser-included instruction on a felony assault charge. The
decision was not deficient and did not prejudice Conway at trial.
Affirmed
_________________________________
Staab, J.
WE CONCUR:
______________________________
Siddoway, C.J.
______________________________
Lawrence-Berrey, J.
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