State Of Washington v. James Richard Montgomery ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, ) No. 78078-6-I
Respondent,
)
v.
) UNPUBLISHED OPINION
JAMES MONTGOMERY, )
) FILED: September 23, 2019
Appellant.
VERELLEN, J. — James Montgomery appeals his conviction for one count of
fourth degree assault and two counts of attempted indecent liberties. Montgomery
argues the State failed to present sufficient evidence to support his conviction for
attempted indecent liberties in count 3. The State presented evidence that
Montgomery followed, tackled, and restrained E.H. as part of a common scheme
or plan to make forcible sexual contact with random women. There was sufficient
evidence to sustain his conviction on count 3.
Montgomery also contends he received ineffective assistance of counsel.
Because defense counsel’s decision to withdraw his requested limiting instruction
was a reasonable trial tactic, Montgomery does not establish ineffective
assistance.
No. 78O78~6-II2
Finally, Montgomery challenges the court’s imposition of the mental health
evaluation community custody condition. Because the court did not make the
statutorily required findings, we remand for the court to consider this condition
under RCW 9.94B.080.
Therefore, we affirm but remand for proceedings consistent with this
opinion.
FACTS
The State charged Montgomery with one count of indecent liberties (C.B.)
and two counts of attempted indecent liberties (T.M. and E.H.). As to the count of
indecent liberties, the jury convicted Montgomery of the lesser charge of fourth
degree assault. As to the two counts of attempted indecent liberties, the jury
convicted Montgomery as charged.
Montgomery appeals.
ANALYSIS
I. Sufficiency of the Evidence
Montgomery contends there was insufficient evidence to sustain his
conviction for attempted indecent liberties on count three (E.H.).
We review sufficiency of the evidence de novo.1 To determine whether
there is sufficient evidence to sustain a conviction, we view the evidence in the
light most favorable to the State and ask whether any rational trier of fact could
1 State v. Hummel, 196 Wash. App. 329, 352, 383 P.3d 592 (2016) (quoting
State v. Rich, 184 Wash. 2d 897, 903, 365 P.3d 746(2016)).
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No. 78078-6-1/3
have found the essential elements of the crime beyond a reasonable doubt.2 “A
claim of insufficiency admits the truth of the State’s evidence and all inferences
that reasonably can be drawn therefrom.”3
“A person is guilty of indecent liberties when he or she knowingly causes
another person to have sexual contact with him or her or another. . . [b]y forcible
compulsion.”4 Because the State charged Montgomery with attempted indecent
liberties, the State must show Montgomery took a substantial step toward the
crime of indecent liberties, with the intent to commit that crime.5
Montgomery claims the State failed to prove he intended to have sexual
contact with E.H. “Sexual contact’ means any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying sexual desire of either
party or a third party.”6
Here, on April 19, 2017, E.H. was walking in the Ravenna neighborhood of
Seattle.7 EM. noticed Montgomery walking a few steps behind her.8 She
2 State v. Elmi, 166 Wash. 2d 209, 214, 207 P.3d 439 (2009).
~ State v. Salinas, 119 Wash. 2d 192, 201, 829 P.2d 1068 (1992).
~ RCW 9A.44.100(1)(a).
~ RCW 9A.28.020.
6 RCW 9A.44.010(2).
~ Report of Proceedings (RP) (Feb. 1, 2018) at 354, 360.
8 kI. at 361.
3
No. 78078-6-1/4
quickened her pace.9 After she turned back around, she felt pressure on her
arms.1° E.H. was ‘grabbed and forcibly pulled to the side.”11
She ended up on her back, ‘laying on top of [her] backpack, on the
ground.”12 Montgomery grabbed her wrists and pinned them to the ground at her
sides.13 E.H. did not “recall where his lower body was, because it was very fast.”14
E.H. did recall that her “legs were bent upward and forcibly kicking” some part of
the man’s body.15 E.H. kicked, flailed, and screamed for help.16
After less than a minute, Montgomery ran away when another man ran
across the street, and a car honked.17 At the time, E.H. was wearing her backpack
and headphones.18 Montgomery did not take any of her property.19
A month and half earlier, on March 7, 2017, C.B. was walking home in the
Belltown neighborhood of Seattle.2° C.B. noticed Montgomery walking behind
~ Id.
10 Id.
Id. at 363.
12 Id.
13 kI. at 363-64.
14kLat364.
15 Id.
16 kI. at 364-65.
~Id. at 366.
18k1.at355-56.
19 kI. at 367, 370.
20 RP (Jan. 30, 2018) at 281.
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No. 78078-6-1/5
her.21 He followed her into her apartment building, into the elevator, and to her
apartment door.22 At her door, Montgomery grabbed her arms from behind.23
C.B. felt Montgomery touch her chest and breasts.24 She “felt like he was trying to
pull [her jacket] off.’25 C.B. screamed and her husband opened the door, pulled
C.B. into the apartment, and advanced towards Montgomery.26 Montgomery
backed away and left.27
On April 17, 2017, T.M. was walking in the First Hill neighborhood of
Seattle.28 T.M. noticed Montgomery walking close behind her.29 He wrapped his
arms around her body and threw her to the ground.3° Montgomery knelt over T.M.
with his knees on either side of her waist.31 He tugged at the waistband of her
pants.32 The man walked away when a van pulled up and honked its horn.33
21 kI. at 288.
22k1.at291, 292-94.
23k1.at295.
24 ki. at 298-99, 303.
25ki.at300.
26 Id. at 295-96, 299, 301.
27kf.at3Ol.
28 RP (February 1, 2018) at 449.
29 kJ. at 451-55.
Id. at 455.
31 kI. at 455-56.
32 kI. at 458, 460.
ki. at 461-62.
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No. 78078-6-1/6
Police were able to find Montgomery based on his car. C.B., TM., and E.H.
individually identified Montgomery. Several other witnesses also identified him.
At the start of trial, Montgomery moved to sever the three counts. The court
denied the motion and determined “[t]he evidence of what happened in each of the
alleged cases is cross-admissible because of the common scheme demonstrated
in each one.”34
Montgomery followed E.H. He also followed C.B. and T.M. Montgomery
tackled E.H. to the ground and pinned her wrists to her sides. He also restrained
C.B. and T.M. Montgomery touched C.B.’s chest and breasts. And he tugged at
T.M.’s pants. Montgomery did not take any personal property from any of the
women. Montgomery did not know any of the women. In all three instances,
Montgomery walked away when third parties intervened. Although Montgomery
did not touch E.H.’s chest or breasts or tug at her pants, the evidence across all
three counts shows Montgomery had a common scheme or plan of following,
restraining, and forcibly making sexual contact with random women.35
Viewing the evidence in the light most favorable to the State, the evidence
supports a reasonable inference that Montgomery took a substantial step toward
~ RP (Jan. 24, 2018) at 36.
~ See State v. DeVincentis, 150 Wash. 2d Ii, 21, 74 P.3d 119 (2003)
(“[A]dmission of evidence of a common scheme or plan requires substantial
similarity between the prior bad acts and the charged crime. Such evidence is
relevant when the existence of the crime is at issue. Sufficient similarity is
reached only when the trial court determines that the ‘various acts are naturally to
be explained as caused by a general plan.”) (quoting State v. Lough, 125
Wash.2d 847, 860, 889 P.2d 487 (1995)).
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No. 78078-6-1/7
causing E.H. to have sexual contact with him when he followed, tackled, and
restrained her. We conclude Montgomery’s conviction for attempted indecent
liberties in count three was supported by sufficient evidence.
II. Ineffective Assistance of Counsel
Montgomery seeks reversal and remand for a new trial due to ineffective
assistance of counsel. Montgomery argues defense counsel provided ineffective
assistance by withdrawing the limiting instruction.
We review a claim of ineffective assistance of counsel de novo.36 The
defendant bears the burden of proving ineffective assistance of counsel.37 First,
the defendant must prove counsel’s performance was deficient.38 Second, the
defendant must show counsel’s deficient performance prejudiced his defense.39
Here, before trial, defense counsel moved to sever each of the three
counts. The court denied the motion and determined the evidence in each count
was cross-admissible to show “the common scheme demonstrated in each one.”4°
When the court denied the motion, it indicated it would instruct the jury to consider
each count separately.
36 State v. Sutherby, 165 Wash. 2d 870, 883, 204 P.3d 916 (2009).
~ State v. Grier, 171 Wash. 2d 17, 33, 246 P.3d 1260 (2011) (quoting
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)).
38 k~. at 32 (quoting Strickland, 466 U.S. at 687).
ki. at 33 (quoting Strickland, 466 U.S. at 687).
40 RP (Jan. 24, 2018) at 36.
7
No. 78078-6-1/8
At trial, after the State rested, the court denied defense counsel’s renewed
motion to sever. Subsequently, defense counsel proposed the following limiting
instruction. In part, the proposed instruction provided:
Evidence admitted related to each distinct count can be
considered for the other counts only for the limited purpose of
determining whether the defendant engaged in a common scheme or
plan or the defendant’s identity, but not for considering the
defendant’s motive or intent, or for any other purpose related to the
other counts.~411
In response, the court proposed the following language:
Evidence admitted related to each distinct count may be
considered for the other counts only for the limited purposes of
determining whether the defendant engaged in a common scheme or
plan, or determining the defendant’s identity. You may not consider
such evidence for any other purpose. Any discussion of the
evidence during your deliberations must be consistent with this
limitation.~42~
Defense counsel objected to the court’s instruction. After hearing
argument, the court indicated it would give its version of the instruction.43 As a
result, defense counsel decided to withdraw his request for a limiting instruction.44
Ultimately, the court did not give Montgomery or the court’s proposed limiting
instruction. But the court instructed the jury: ‘A separate crime is charged in each
41 Clerk’s Papers (CP) at 54.
42 CP at 139.
~ RP (Feb. 6,2018) at 638.
ki. at 638-39.
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No. 78078-6-1/9
count. You must decide each count separately. Your verdict on one count should
not control your verdict on any other count.”45
Montgomery argues counsel’s decision to withdraw the limiting instruction
was unreasonable. When defense counsel’s decisions “can be characterized as
legitimate trial strategy or tactics, performance is not deficient.”46 More precisely,
‘“[t]he relevant question is not whether counsel’s choices were strategic, but
whether they were reasonable.”47 Because ‘‘[s]crutiny of counsel’s trial tactics is
deferential, . . . the presumption of adequate representation is not overcome if
there is any “conceivable legitimate tactic” that can explain counsel’s
performance.”48
Limiting instructions restrict the purpose for which a jury considers
evidence. ER 105 provides, “When evidence which is admissible as to one party
or for one purpose but not admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to its proper scope
and instruct the jury accordingly.”
The State does not dispute Montgomery was entitled to a limiting
instruction. And the court’s proposed instruction complied with ER 105. The
45CPat73.
46 State v. Kyllo, 166 Wash. 2d 856, 863, 215 P.3d 177 (2009).
~ Crier, 171 Wash. 2d at 34 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 481,
120 5. Ct. 1029, 145 L. Ed. 2d 985 (2000)).
48 In re Det. of Hatfield, 191 Wash. App. 378, 401-02, 362 P.3d 997 (2015)
(quoting State v. Bander, 150 Wash. App. 690, 720, 208 P.3d 1242 (2009); State v.
Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80(2004)).
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No. 78078-6-1110
instruction informed the jury that the evidence of each count was cross-admissible
to determine whether the defendant engaged in a common scheme or plan or to
determine the defendant’s identity. And the instruction informed the jury that the
e~’idence was not admissible for any other purpose.” But defense counsel was
concerned that this language amounted to no limitation.
The only substantive difference between the two proposed instructions was
Montgomery’s instruction specifically instructed the jury to not consider the cross-
admissible evidence for motive or intent, rather than the court’s instruction that
merely instructed the jury to not consider it for “any other purpose.” It is
conceivable that defense counsel decided the court’s proposed instruction
unfavorably emphasized the cross-admissibility of the evidence of each count to
show a common scheme or plan without explicitly reminding the jury they were not
to consider the evidence for motive or intent.49
Counsel’s decision to withdraw the limiting instruction was a legitimate trial
tactic and did not constitute ineffective assistance of counsel. Because
Montgomery fails to prove that his defense counsel was deficient, we need not
address whether his counsel’s decision prejudiced his trial.
~ See, e.g., State v. Woods, 198 Wash. App. 453, 461, 393 P.3d 886 (2017)
(“[A] separate limiting instruction. could serve as an unwanted reminder of
. .
damaging testimony.”).
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No. 78078-6-Ill 1
Ill. Mental Health Evaluation
Montgomery asks us to strike the community custody condition requiring
him to complete a mental health evaluation.
Under RCW 9.94B.080,
The court may order an offender whose sentence includes
community placement or community supervision to undergo a mental
status evaluation and to participate in available outpatient mental
health treatment, if the court finds that reasonable grounds exist to
believe that the offender is a mentally ill person as defined in
RCW 71 .24.025, and that this condition is likely to have influenced
the offense.
The State concedes the court did not make the statutorily required findings.
We accept the State’s concession. However, the State argues this case should be
remanded for the trial court to reconsider the condition under RCW 9.94B.080.
In State v. Shelton, the trial court found “mental health issues contributed to
his offense,” but it did not find the defendant “is a mentally ill person.”5° This court
accepted the State’s concession that the court did not comply with
RCW 9.94B.080 and remanded “to determine whether to order a mental health
evaluation according to the requirements set forth in former RCW 9.94B.080.”51
In State v. Brooks, when considering the same issue, Division Three of this
court reversed the community custody condition regarding mental health
evaluation and treatment because “there was no finding that [the defendant] was a
50194 Wash. App. 660, 676, 378 P.3d 230 (2016).
51 Id.
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No. 78078-6-1/12
mentally ill person whose condition influenced the offense.”52 Montgomery argues
we should strike the condition under Brooks rather than remand under Shelton.
Because public safety and Montgomery’s own wellbeing may be served by
a mental health evaluation and treatment, we follow this court’s approach in
Shelton and remand for the trial court to consider this condition under
RCW 9.94B.080.
Therefore, we affirm Montgomery’s convictions and remand for
consideration consistent with this opinion.
WE CONCUR:
~ / ___________
52142 Wash. App. 842, 851, 176 P.3d 549 (2008).
12