* State Of Washington, Respondent V. Jarrell Cortez Davis, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
JERRELL CORTEZ DAVIS,
Appellant.
DIVISION ONE
No. 80956-3-I
PUBLISHED OPINION
DWYER, J. — Jerrell Davis, charged with theft in the second degree,
appeals from the judgment entered on a jury’s verdict finding him guilty of the
inferior degree crime of theft in the third degree, a gross misdemeanor. On
appeal, Davis contends that the statute of limitation barred the State from
prosecuting him for theft in the third degree. We disagree. Because Davis
affirmatively sought an instruction on theft in the third degree in the hope of
benefiting by being convicted of a lesser offense, he waived the statute of
limitation defense. In addition, Davis’s claim of ineffective assistance of counsel
is without merit. We affirm.
I
On February 3, 2017, Home Depot asset protection specialist Adam
Hensley observed Jerrell Davis and an unidentified man move some boxed
power tools to a different area of the hardware section. Hensley recognized this
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No. 80956-3-I/2
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as possible “staging,” a technique used by shoplifters to avoid detection by
placing merchandise in a more advantageous location in order to later steal it.
Hensley saw the men leave the store empty-handed. A few minutes later, they
reentered the store through a different entrance, returned to the power tool
section, selected some more boxed tools, and “staged” them in a different part of
the store. Davis then picked up a box containing a demolition hammer, the other
man picked up two smaller boxes containing power drills, and the two men
moved toward the front of the store.
Suspecting that the men were attempting to leave without paying for the
items, Hensley exited the store just ahead of the two men. When the men
passed the registers and exited the store, Hensley identified himself as a store
security employee and explained why he was stopping them. Davis complied
with the order to stop walking. The unidentified man, however, dropped the
items he was carrying and ran away. Seattle police soon arrived and identified
Davis using his driver’s license. Hensley later created a receipt establishing that
the demolition hammer carried by Davis was priced at $599 and the drills carried
by the unidentified man were priced at $299 each.
On March 13, 2019, the State charged Davis with theft in the second
degree based on the February 3, 2017 incident. At trial, Davis sought and was
granted a jury instruction on the inferior degree crime of theft in the third degree.
The trial court granted Davis’s pretrial motion to exclude any statements
Davis made to Hensley or to the police. Trial commenced on December 3, 2019.
At trial, the State presented Hensley’s testimony along with video showing Davis
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No. 80956-3-I/3
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and the other man moving items around the store and then leaving the store
without paying for the items they were carrying. Davis’s defense was that he was
not stealing anything and that the State did not prove that he was not shopping
for items on display outside the store.
In closing argument, the State asserted that Davis and the unidentified
man were accomplices and that the combined value of the merchandise they
stole exceeded $750.1 Conversely, defense counsel denied that Davis intended
to steal anything. Rather, counsel argued, Hensley had prematurely targeted the
men based on racial stereotypes. Defense counsel emphasized Davis’s
compliance throughout the incident. Defense counsel further argued that the
State failed to prove that Davis and the other man were acting together as
accomplices.
The jury acquitted Davis of theft in the second degree but convicted him of
theft in the third degree. The court sentenced Davis to time served and closed
the case. Davis appeals.
II
Davis argues that his conviction for theft in the third degree was barred by
the expiration of the two-year statutory limitation period applicable to a gross
misdemeanor.2 RCW 9A.56.050(2); RCW 9A.04.080(1)(j). This is so, he
contends, because the event at issue took place on February 3, 2017 and, as of
1 A person is guilty of theft in the second degree if he or she commits theft of “[p]roperty
or services which exceed(s) seven hundred fifty dollars in value but does not exceed five
thousand dollars in value.” RCW 9A.56.040(1)(a).
2 The parties do not dispute that the second degree theft charge, a class C felony with a
three-year statutory limitation period, was timely filed. RCW 9A.56.040(2); RCW 9A.04.080(1)(i).
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No. 80956-3-I/4
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February 3, 2019, he had not been charged with this offense. The State
counters this argument with two assertions: first, that Davis may not raise a
statute of limitation issue for the first time on appeal and, second, that Davis, by
his actions in the trial court, waived the statute of limitation defense.
A
Davis did not raise the defense of the expiration of the statutory limitation
period in the trial court. Instead, after the expiration of the limitation period, he
requested that the trial court instruct the jury on the option of finding him guilty of
theft in the third degree rather than the charged offense of theft in the second
degree.
The expiration of a criminal statutory limitation period does not affect the
jurisdiction of the trial court. The limitation is not jurisdictional in nature. Instead,
it limits the authority of the trial court to enter judgment. State v. Peltier, 181
Wn.2d 290, 297, 332 P.3d 457 (2014).
The question of whether a statute of limitation defense can be raised for
the first time on appeal in a criminal case has been presented to us before.
In State v. Loos, 14 Wn. App. 2d 748, 473 P.3d 1229 (2020), the defendant
asserted that she could raise the issue on appeal even though it had not been
raised in the trial court. The basis for this, she claimed, was RAP
2.5(a)(1). Loos, 14 Wn. App. 2d at 756.
We disagreed. The cited rule, we noted, allowed a party to raise a claim
of error for the first time in the appellate court when the error concerned “lack of a
trial court’s jurisdiction.” Loos, 14 Wn. App. 2d at 757; RAP 2.5(a)(1). Because
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No. 80956-3-I/5
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the expiration of a statutory limitation period does not affect a trial court’s
jurisdiction, we reasoned, RAP 2.5(a)(1) did not allow for the assertion of Loos’s
claim of error. Loos, 14 Wn. App. 2d at 756-57.
B
But that does not end our analysis. We say this because RAP 2.5(a) also
provides that “a party may raise the following claimed errors for the first time in
the appellate court: . . . (2) failure to establish facts upon which relief can be
granted.” RAP 2.5(a)(2). Because a valid statute of limitation defense deprives
the trial court of the authority to enter judgment, Peltier, 181 Wn.2d at 297, RAP
2.5(a)(2) can authorize the advancement of such a claim for the first time on
appeal. However, for RAP 2.5(a)(2) to be implicated, the defendant must not
have removed the statute of limitation defense from controversy prior to judgment
being entered.
C
The question, then, is this: does Davis seek to advance a valid statute of
limitation claim for the first time on appeal? The State says “No.” Davis waived
the defense by his actions, the prosecutor avers, thereby removing the limitation
issue from controversy. We agree.
Three cases govern our analysis of this issue. The first is Peltier. The
Supreme Court therein held that a criminal defendant may expressly waive a
defense based on the expiration of a statutory limitation period as part of a plea
agreement when the statutory period had not yet expired on the underlying
charge. The court reasoned:
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No. 80956-3-I/6
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If it proves more advantageous for a defendant to waive a statute of
limitations that has not expired, he or she should be able to do so.
This will allow a defendant to plead guilty to lesser charges instead
of standing trial on greater ones and facing a lengthy prison
sentence.
Peltier, 181 Wn.2d at 297-98 (citations omitted).
The Supreme Court extended this rule in the next of our trilogy of case
authority. In In re Pers. Restraint of Swagerty, 186 Wn.2d 801, 383 P.3d 454
(2016), the court held that “as long as the statute of limitations has not yet run at
the time of charging on the original, more serious charges, the defendant may
knowingly and expressly waive an expired statute of limitations on lesser charges
to take advantage of a beneficial plea offer.” Swagerty, 186 Wn.2d at 810. The
court specified that “[t]he defendant may execute this waiver after consulting with
counsel as part of plea negotiations.” Swagerty, 186 Wn.2d at 810. Thus,
pursuant to Peltier and Swagerty, a defendant may explicitly waive the defense
provided by the statute of limitation before or after the expiration of the limitation
period, when that waiver occurs in a plea agreement and in exchange for a
benefit.
In Loos, the last of our trilogy of case authority, the defendant was
originally charged with the felony of assault of a child in the third degree. 	At trial,
the State requested an instruction on the “alternative offense” of assault in the
fourth degree. Loos, 14 Wn. App. 2d at 755. Although the original charge was
timely, the statutory limitation period had expired on the “alternative”
offense. Loos, 14 Wn. App. 2d at 756. Loos did not object to the instruction
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No. 80956-3-I/7
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based on the expiration of the statutory limitation period. Loos, 14 Wn. App. 2d
at 758.
Loos argued that the express waiver requirement of Peltier meant that she
could raise the issue for the first time on appeal. Loos, 14 Wn. App. 2d at 756.
This court disagreed, opining that Peltier and Swagerty, which addressed waiver
in the context of plea negotiations, do not strictly apply in the context of
preservation of error for appeal when the case goes to trial. Loos, 14 Wn. App.
2d at 758. This court noted that the time to raise the statute of limitation issue
was in response to the State’s request for the “alternative” offense jury
instruction. Loos, 14 Wn. App. 2d at 757. Because “a defendant can waive a
statute of limitations defense by failing to raise it in the trial court and an express
waiver is not required,” we ruled that Loos was precluded from raising the
argument for the first time on appeal. Loos, 14 Wn. App. 2d at 759.
Here, the statute of limitation issue was conclusively resolved in the trial
court. Davis proposed the inferior degree jury instruction after the limitation
period applicable to that crime had expired. He did so to give the jury the option
to convict him of a gross misdemeanor instead of a felony. In so doing, Davis
actually received a benefit: the jury found him guilty of third degree theft, the
lesser crime. Although Davis’s situation falls within that of Loos, we view it as
being closer to that of the defendant in Swagerty. Davis affirmatively proposed a
jury instruction in order to receive the benefit of giving the jury the option to
convict him of a lesser offense. The jury did so. Davis benefited from
affirmatively choosing this strategy. A defendant is entitled to make this choice.
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No. 80956-3-I/8
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Davis asserts that, unlike the defendants in Peltier and Swagerty, he did
not expressly waive the statute of limitation defense. He contends that the
statute of limitation defense cannot be impliedly waived. This is indeed so in the
context of a plea agreement, where the defendant and the prosecutor, having
agreed, are no longer adversarial and the trial court can conduct a colloquy on
the record to ensure that the defendant’s waiver of the defense is intelligent and
voluntary. Here, in contrast, Davis and the State remained in an adversarial
posture throughout the trial. Davis did not testify. During the trial, a colloquy to
establish an express waiver of the defense might well have interfered with the
defendant’s Sixth Amendment right to counsel and infringed on attorney-client
privileged communications. Obviously, trial courts must refrain from such
transgressions. Because counsel is presumed to be competent, the trial court
may assume that defense counsel acts with the client’s approval or
acquiescence. Accordingly, affirmatively requesting a jury instruction on an
inferior degree offense necessarily results in a waiver or forfeiture of the statute
of limitation defense. To be sure, although Davis requested the instruction, this
is not a case of invited error. There was no error.
Because the defense of the expiration of the statutory limitation period
was removed from dispute in the trial court, the statute of limitation presented no
bar to entry of judgment. Accordingly, RAP 2.5(a)(2) is inapplicable. Davis’s
statute of limitation challenge may not be raised for the first time on appeal.
III
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No. 80956-3-I/9
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Davis next argues that his counsel was ineffective for failing to object to
testimony that Davis did not answer all of Hensley’s questions. During cross-
examination, Hensley testified that Davis was “very compliant” upon being
detained and escorted to the security office. The following exchange then
occurred:
[DEFENSE COUNSEL:] And while you were in the office you didn’t
ask him whether he was still shopping [when he was stopped]?
[HENSLEY:] I asked him various questions which he did not
answer.
[DEFENSE COUNSEL:] So you did ask him whether he was still
shopping or you did not?
[HENSLEY:] That particular question, no, ma’am.
[DEFNSE COUNSEL:] Okay. You didn’t ask him if he was looking
for outdoor merchandise?
[HENSLEY:] No, ma’am.
(Emphasis added.)
In order to establish ineffective assistance of counsel, a defendant must
show both that counsel’s performance was deficient and that the defense was
thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984). The defendant bears the burden to prove
ineffective assistance of counsel. State v. McFarland, 127 Wn.2d 322, 335, 899
P.2d 1251 (1995). “To combat the biases of hindsight, our scrutiny of counsel’s
performance is highly deferential and we strongly presume reasonableness.” In
re Pers. Restraint of Lui, 188 Wn.2d 525, 539, 397 P.3d 90 (2017). “For many
reasons . . . the choice of trial tactics, the action to be taken or avoided, and the
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No. 80956-3-I/10
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methodology to be employed must rest in the attorney’s judgment.” State v.
Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967). “When counsel’s conduct can
be characterized as legitimate trial strategy or tactics, performance is not
deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).
Davis asserts that Hensley’s disclosure informing jurors that Hensley
“asked him various questions which he did not answer” undermined the defense
theory that Davis’s compliance demonstrated that he did nothing wrong. He
contends that it was not objectively reasonable for defense counsel to fail to
object to Hensley’s nonresponsive answer and that the outcome of the trial would
have been different if the jury had been instructed to disregard it. We disagree.
“Decisions on whether and when to object to trial testimony are classic
examples of trial tactics.” State v. Crow, 8 Wn. App. 2d 480, 508, 438 P.3d
541, review denied, 193 Wn.2d 1038 (2019). “There are countless ways to
provide effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.” Strickland, 466
U.S. at 689. “To prove that failure to object rendered counsel ineffective,
Petitioner must show that not objecting fell below prevailing professional norms,
that the proposed objection would likely have been sustained, and that the result
of the trial would have been different if the evidence had not been admitted.” In
re Pers. Restraint of Davis, 152 Wn.2d 647, 714, 101 P.3d 1 (2004) (footnotes
omitted).
Here, there was nothing improper about defense counsel’s question,
which was clearly intended to elicit an answer tending to prove that Hensley
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No. 80956-3-I/11
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detained Davis without bothering to determine whether he was done shopping.
Hensley’s nonresponsive answer was arguably inconsistent with the defense
theory that Davis was cooperative and innocent. Defense counsel was thus
presented with two choices: (1) object and move to strike the testimony as
nonresponsive, thereby drawing attention to it or (2) pose the proper question
once again, demand a responsive answer, and focus the jury’s attention on the
answer given. Defense counsel’s decision to avoid emphasizing the testimony
with an objection was purely tactical and entirely reasonable. Davis fails to show
deficient performance. Because both prongs of the ineffective assistance of
counsel test must be met for appellate relief to be warranted, the failure to
demonstrate either prong ends our inquiry. State v. Classen, 4 Wn. App. 2d 520,
535, 422 P.3d 489 (2018).
Affirmed.
WE CONCUR:
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