State v. Humphries

Lau, J.

¶1 Mario Humphries fired a gun at a police officer. A jury convicted him of second degree assault with a deadly weapon — including a firearm enhancement finding, third degree assault, and first degree unlawful possession of a firearm. He appeals the unlawful firearm possession conviction, arguing that his counsel’s tactical stipulation to the serious offense element over his objection violates his federal and state constitutional right to a jury trial and to due process. Because Humphries waived or abandoned his objection when he changed his mind and signed the stipulation after conferring with his counsel and any error is harmless, we affirm the judgment and sentence.¹

FACTS

¶2 At trial, witnesses testified to the following: On February 7, 2010, at 1 a.m., Officer David Ellithorpe was driving a marked patrol vehicle at approximately 15 to 20 mph through the Rainier Valley neighborhood of Seattle. No nearby businesses were open, and Officer Ellithorpe had not seen a pedestrian for approximately 15 to 20 minutes. As he approached South Juneau Street on Rainier Avenue South, he noticed two males emerge from an alley approximately 40 to 50 yards away. He observed one of the men, later identified as Mario Humphries, raise his right arm to shoulder height and point it at him and his patrol vehicle. Officer Ellithorpe heard a gunshot and saw a muzzle flash from the object in the man’s hand. Based on his law enforcement experience, he recognized the flash as a muzzle flash of a small caliber weapon.

¶3 Officer Ellithorpe quickly drove his vehicle away from the alley and broadcast over his radio that someone had shot at him. He reported that the shooter was wearing a gray hooded sweatshirt.² Officer Ellithorpe turned off his vehicle lights and drove back to the scene to apprehend the shooter.

¶4 Officer Daryl D’Ambrosia was nearby when he heard the radio dispatch indicating Officer Ellithorpe’s request for help. He reached the scene of the shooting in less than one minute. When he arrived, he observed two men walking north on Rainier Avenue South between South Juneau Street and South Mead Street. Officer D’Ambrosia immediately contacted Officer Ellithorpe, who had by that time returned to the scene.

¶5 Officer Ellithorpe immediately recognized the two men as the individuals who had emerged from the alley. He identified Mario Humphries — who was wearing a blue and gray hooded jacket — as the person who shot at him. Police officers arrested Humphries.³

¶6 No weapons or ammunition were found on Humphries or his companion. Officers searched the area but found no weapon. The presence of thick undergrowth hampered the search. Based on the sound of the gunshot and the size of the muzzle flash, Officer Ellithorpe concluded the weapon used was a small caliber handgun.

¶7 The State charged Humphries by amended information with the crimes of assault in the second degree, assault in the third degree (in the alternative), and first degree unlawful possession of a firearm. Humphries’ ineligibility to possess a firearm was based on his prior 2005 and 2006 King County juvenile court convictions of first degree robbery, second degree robbery, and attempted second degree robbery. The State further alleged that Humphries was armed with a firearm at the time he committed the assault.

¶8 On the first day of trial testimony, defense counsel told the trial court that the parties had agreed to stipulate to the fact that Humphries had previously been convicted of a “serious offense,” which is an element of the crime of first degree unlawful possession of a firearm. Defense counsel explained the tactical reasons for the stipulation to the trial court: “I do not want the jury to hear the fact that [Humphries had] been convicted of a rob in the first degree, a rob in the second degree and attempted robbery in the second degree.” Report of Proceedings (RP) (Oct. 12, 2010) at 5. He also explained that he and Humphries discussed the strategy at length, but Humphries disagreed with the strategy. Counsel also explained his belief that a tactical stipulation required no prior consent from Humphries; the court agreed. At the close of the State’s case, the court read the stipulation to the jury, which had been signed by both counsel but not signed by Humphries. The stipulation stated:

The following statement is a stipulation by both parties. A stipulation means that the following facts are not in dispute and should be considered as fact for the purposes of trial.

The parties in the above-referenced case agree that on February 7, 2010, the defendant, Mario Humphries, had previously been convicted of a serious offense.

The parties further agree that on February 7, 2010, the defendant, Mario Humphries, had previously received written notice that he was ineligible to possess a firearm.

The parties further agree that on February 7, 2010, the defendant, Mario Humphries, knew that he could not possess a firearm.

¶9 After closing argument and before deliberations commenced, the court and counsel discussed exhibits to be considered by the jury during their deliberations. At this point, defense counsel told the court that he talked to Humphries and Humphries had changed his mind and agreed to sign the stipulation. Defense counsel requested, and the court agreed, that the stipulation should not be admitted as an exhibit for the jury’s consideration during deliberations. Humphries signed the stipulation below his counsel’s signature, and it was filed with the court.

¶10 The jury found Humphries guilty of all three counts and the firearm enhancement. The court imposed 106 months of total confinement and vacated the third degree assault conviction. Humphries moved unsuccessfully for a new trial based on juror misconduct⁴ and ineffective assistance of counsel. Humphries appeals.

ANALYSIS

¶11 Humphries contends that his “right to a jury trial and to due process was violated where the court permitted a stipulation of guilt to several elements of the VUFA [violation of the Uniform Firearms Act, ch. 9.41 RCW,] count to be read to the jury, knowing that it was affirmatively objected to by Mr. Humphries.” Appellant’s Br. at 9 (boldface and capitalization omitted). But we decline to address these constitutional claims because the resolution of this case rests on the determination of nonconstitutional questions discussed below. State v. Speaks, 119 Wn.2d 204, 207, 829 P.2d 1096 (1992) (“If it is not necessary to reach a constitutional question, it is well established policy that we should decline to do so.”); State v. Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981) (declining to reach alleged constitutional jury unanimity violation because the alleged instructional error was harmless beyond a reasonable doubt; “A reviewing court should not pass on constitutional issues unless absolutely necessary to the determination of the case.”). That core question requires us to review whether the trial court commits reversible error when it accepts defense counsel’s strategic decision to stipulate to elemental facts over his client’s objection. The parties’ briefs on this complex, novel question are also inadequate to bear up to such a significant decision.

Manifest Constitutional Error

¶12 The parties dispute whether RAP 2.5’s manifest constitutional error rule applies to this case. Humphries contends in a footnote that his objection sufficiently preserved the constitutional claims and, thus, the rule does not apply. The State argues Humphries’ failure to preserve the claims triggers the rule’s application here.

¶13 Under RAP 2.5(a)(3), an issue first raised on appeal may be reviewed by an appellate court where it is a manifest error affecting a constitutional right. The burden is on the defendant to make the required showing. State v. McDonald, 138 Wn.2d 680, 691, 981 P.2d 443 (1999). In State v. Lynn, 67 Wn. App. 339, 835 P.2d 251 (1992), we concluded the proper approach in analyzing alleged constitutional error raised for the first time on appeal involves four steps:

First, the reviewing court must make a cursory determination as to whether the alleged error in fact suggests a constitutional issue. Second, the court must determine whether the alleged error is manifest. Essential to this determination is a plausible showing by the defendant that the asserted error had practical and identifiable consequences in the trial of the case. Third, if the court finds the alleged error to be manifest, then the court must address the merits of the constitutional issue. Finally, if the court determines that an error of constitutional import was committed, then, and only then, the court undertakes a harmless error analysis.

... However, it is not sufficient when raising a constitutional issue for the first time on appeal to merely identify a constitutional error and then require the State to prove it harmless beyond a reasonable doubt. The appellant must first make a showing how, in the context of the trial, the alleged error actually “affected” the defendant’s rights. Some reasonable showing of a likelihood of actual prejudice is what makes a “manifest error affecting a constitutional right”.

Lynn, 67 Wn. App. at 345-46 (emphasis added) (quoting RAP 2.5(a)(3)).

¶14 We question whether Humphries establishes manifest constitutional error when he makes no showing that the claimed error actually prejudiced his rights in the context of the trial. The record here indicates that Humphries initially objected but later changed his mind with the benefit of all the evidence, closing remarks, and further consultation with counsel.

Waiver

¶15 Even if we assume manifest constitutional error here, Humphries waived or abandoned any claimed error. The record shows that Humphries initially disagreed with his counsel’s strategic decision to stipulate that he had previously been convicted of a serious offense — an essential element of first degree unlawful possession of a firearm.⁵

¶16 On the first day of testimony, the following exchange occurred:

[DEFENSE]: And the other thing is that the parties are going into — enter into a stipulation under the VUFA. The State has to prove that Mr. Humphries has been convicted of a serious offense.

I do not want the jury to hear the fact that he’s been convicted of a rob in the first degree, a rob in the second degree, and attempted robbery in the second degree.

THE COURT: Sure.

[DEFENSE]: I had a long discussion with Mr. Humphries trying to explain the defense strategy, not wanting that to come in.

He unfortunately doesn’t see that. However, I don’t think I need his consent when it comes to defense strategy for him to be in agreement with me (inaudible) stipulation so —

THE COURT: That’s correct. So you are agreeing to the stipulation?

[DEFENSE]: Yes, your Honor.

THE COURT: Okay. You let me know when you want me to read this to the jury.

[THE STATE]: Yes.

THE COURT: And I understand then that, counsel, you discussed this with your client. He doesn’t wish to sign, but you believe it’s the best legal strategy to proceed in this manner?

[DEFENSE]: Right.

THE COURT: Because it would be prejudicial, in your opinion, to have the jury know that he’s been convicted of two prior robberies and attempted robbery?

[DEFENSE]: That’s correct, your Honor.

THE COURT: That makes complete sense to me.

RP (Oct. 12, 2010) at 6.

¶17 After listening to the evidence and closing remarks but before deliberations began, the record shows Humphries talked to his counsel, changed his mind about his earlier decision to object, and agreed to the stipulation by signing it in open court:

THE COURT: All right. I also wanted to just stay on the record.

I know you had made a correction on the stipulation on the date, and when I had read that, the defendant didn’t sign this stipulation either.

And I assume — but I just wanted to make sure for the record it’s the same, it was the same situation, [defense counsel], that your client refused to sign.

But you believe it was the best strategy and tactical decision not to tell the jury about his prior robberies and the specifics about his prior convictions and to do a stipulation.

[DEFENSE]: That’s correct, your Honor, but, however, in talking to Mr. Humphries, I think he’s prepared to sign it now. I think he —

THE COURT: Oh, okay, that would be helpful.

RP (Oct. 14, 2010) at 88-89.

¶18 It is well-settled law that even constitutional rights can be waived. State v. Bennett, 42 Wn. App. 125, 128, 708 P.2d 1232 (1985) (quoting State v. Myers, 86 Wn.2d 419, 426, 545 P.2d 538 (1976) (“Even constitutional rights can be waived by conduct . . . .”)). Waiver of a constitutional right must be voluntary, knowing, and intelligent. In re Pers. Restraint of James, 96 Wn.2d 847, 851, 640 P.2d 18 (1982). In State v. Valladares, 99 Wn.2d 663, 671-72, 664 P.2d 508 (1983),⁶ the defendant moved pretrial to exclude evidence obtained during a warrantless search, but then affirmatively withdrew the motion. The defendant appealed his conviction, assigning error to the trial court’s refusal to exclude the evidence. Our Supreme Court declined to review the issue, holding that the constitutional issue had been “waived or abandoned.” Valladares, 99 Wn.2d at 672; see also State v. Mierz, 72 Wn. App. 783, 789, 866 P.2d 65, 875 P.2d 1228 (1994), aff’d, 127 Wn.2d 460, 901 P.2d 286 (1995). Valladares relied on Johnson v. United States, 318 U.S. 189, 63 S. Ct. 549, 87 L. Ed. 704 (1943). There, the Court found constitutional error but held reversal unwarranted because the defendant “affirmatively withdrew a Fifth Amendment objection to a prosecution.” Valladares, 99 Wn.2d at 672 (quoting Johnson, 318 U.S. at 200). Justice Douglas concluded that withdrawal of the objection amounted to an express waiver:

We can only conclude that petitioner expressly waived any objection to the prosecutor’s comment by withdrawing his exception to it and by acquiescing in the treatment of the matter by the court. It is true that we may of our own motion notice errors to which no exception has been taken if they would “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” But we are not dealing here with inadvertence or oversight. This is a case where silent approval of the course followed by the court is accompanied by an express waiver of a prior objection to the method by which the claim of privilege was treated.

Johnson, 318 U.S. at 200 (citations omitted) (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 80 L. Ed. 555 (1936)).

¶19 “Valladares and [State v.] Rodriguez[, 65 Wn. App. 409, 417, 828 P.2d 636 (1992)] reinforce the definition of ‘waiver’ as ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” State v. Harris, 154 Wn. App. 87, 95, 224 P.3d 830 (2010) (internal quotation marks omitted) (quoting State v. Riley, 19 Wn. App. 289, 294, 576 P.2d 1311 (1978)).

¶20 Humphries claims in his opening brief that the court’s acceptance of the stipulation over objection “was incorrect but may have stemmed from conflict in case law concerning the question whether a full oral colloquy is required before a stipulation.” Appellant’s Br. at 10 (citation omitted). Humphries mistakenly argues that counsel agreed to stipulate “to most of the elements of the VUFA offense” and “to several elements of prior conviction, notice, and knowledge of firearm ineligibility” and to “forcing the accused to essentially agree that he is guilty as to most of the elements of the offense.” Appellant’s Br. at 10; Appellant’s Reply Br. at 11. The record shows the parties stipulated only to the “serious offense” element and to other facts that do not constitute either statutory elements or implied elements of the crime. The parties stipulated that Humphries “knew that he could not possess a firearm” and “he had previously received written notice that he was ineligible to possess a firearm.” State v. Reed, 84 Wn. App. 379, 382-85, 928 P.2d 469 (1997) (there is no requirement that the State prove the defendant knew his possession of a firearm was illegal or that he received notice of his ineligibility to possess a firearm). The scienter necessary to be proved by the State is that the defendant knowingly possessed the firearm. State v. Anderson, 141 Wn.2d 357, 360-67, 5 P.3d 1247 (2000). Thus, Humphries’ above-quoted assertions are incorrect.

¶21 It is true, as noted above, that waiver of a constitutional right must be knowing, voluntary, and intelligent. But Humphries attempts to analogize counsel’s decision to stipulate to the decision to plead guilty. Numerous cases undermine this claim in holding that entry of a stipulation to less than all elements of the offense does not require the same level of trial court inquiry that would accompany the entry of a guilty plea. United States v. Ferreboeuf, 632 F.2d 832, 836 (9th Cir. 1980) (holding that “no voluntariness inquiry was required in this case before accepting the stipulation”); Adams v. Peterson, 968 F.2d 835, 839-43 (9th Cir. 1992) (stipulation was not de facto guilty plea and defendant not entitled to full measure of protection that attends such a plea); In re Det. of Moore, 167 Wn.2d 113, 121, 216 P.3d 1015 (2009) (no due process violation where trial court accepted factual stipulation without inquiry into whether defendant understood and knowingly waived his right to contest State’s case against him); State v. Johnson, 104 Wn.2d 338, 340-43, 705 P.2d 773 (1985) (stipulated facts trial is substantively different than a guilty plea).

¶22 The Washington appellate decision upon which all subsequent cases rely is State v. Wiley, 26 Wn. App. 422, 613 P.2d 549 (1980). The issue there was whether a stipulation to facts regarding the alleged crime was tantamount to a guilty plea, thus calling into play the procedural safeguards of CrR 4.2 governing guilty pleas. We held that guilty plea admonitions were unnecessary, reasoning:

A guilty plea, however, is functionally and qualitatively different from a stipulation. A guilty plea generally waives the right to appeal. A guilty plea has been said to be “itself a conviction; nothing remains but to give judgment and determine punishment.”

A stipulation, on the other hand, as was employed in the instant case, is only an admission that if the State’s witnesses were called, they would testify in accordance with the summary presented by the prosecutor. The trial court must make a determination of guilt or innocence. State v. Gossett, 120 Ariz. 44, 583 P.2d 1364 (1978). More importantly, a stipulation preserves legal issues for appeal and can operate to keep potentially prejudicial matters from the jury’s consideration.

Wiley, 26 Wn. App. at 425-26 (citations omitted) (quoting Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)).

¶23 Here, the stipulation acknowledged that the State’s evidence would show that Humphries “had previously been convicted of a serious offense.” This form of stipulation preserved Humphries’ legal issues for appeal and right to present evidence and cross-examine witnesses, and allowed the jury to still determine Humphries’ guilt or innocence while keeping indisputable unfair prejudicial evidence from the jury. Johnson, 104 Wn.2d at 342. In short, the stipulation in this case was not equivalent to an admission that Humphries was guilty of first degree unlawful possession of a firearm. We conclude that the stipulation was not the type of stipulation that triggered a level of inquiry associated with a guilty plea.

¶24 In State v. Woods, 143 Wn.2d 561, 608-09, 23 P.3d 1046 (2001), the court held that waiving admission of mitigating evidence in a capital case must be knowing, voluntary, and intelligent — but the waiver is presumed to be knowing, voluntary, and intelligent if part of trial strategy. Similar to Woods, Humphries’ decision to stipulate was undisputedly based on trial strategy. In Woods, the defendant claimed that the trial court erred in failing to conduct a colloquy to ensure that his decision to waive his right to present mitigating evidence at the death penalty phase was the product of an intelligent, knowing, and voluntary choice. He argued the trial court’s failure to engage in this colloquy entitled him to vacation of his death sentence and the case remanded to the trial court for a new sentencing proceeding. A capital defendant has a statutory and constitutional right to present relevant mitigating evidence for sentencing. Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). “Like other constitutional rights, a defendant may waive the right to present mitigating evidence so long as the waiver is made ‘knowingly, voluntarily, and intelligently.’ ” Woods, 143 Wn.2d at 609.

¶25 Observing that a trial court’s responsibility to ensure that a defendant’s waiver of the right to present mitigating evidence is made knowingly, voluntarily, and intelligently was a question of first impression and never addressed by the United States Supreme Court or the Ninth Circuit Court of Appeals, the court concluded no trial court colloquy was necessary, reasoning:

[A] trial court need not conduct a “colloquy” to ensure that a capital defendant’s decision to waive the right to present mitigating evidence is a voluntary, intelligent, and knowing choice. Rather, like the evaluation of a defendant’s waiver of the right to testify on his or her own behalf, “the judge may assume a knowing waiver of the right from the defendant’s conduct.” State v. Thomas, 128 Wn.2d 553, 559, 910 P.2d 475 (1996). In our view, the decision of whether or not to present mitigating evidence, like other decisions that must be made in the course of a trial, is one that is influenced by trial strategy. Thus, the responsibility for informing the defendant of this right and discussing the merits and demerits of the decision resides with defense counsel. Under this standard, it is clear that Woods made a voluntary intelligent, and knowing choice not to present mitigating evidence.

Woods, 143 Wn.2d at 609. We apply the Woods presumption here because the record plainly shows counsel’s decision to stipulate was tactical and made for the express purpose of preventing the jury from hearing unfair prejudicial evidence — Humphries’ prior convictions of first degree robbery, second degree robbery, and attempted second degree robbery. The record indicates that while Humphries initially disagreed with that reasonable strategic decision, he changed his mind after consultation with his counsel and agreed to sign the stipulation before jury deliberations began. Thus, the trial court was entitled to presume Humphries’ waiver was knowing, voluntary, and intelligent.

¶26 As our Supreme Court explained, the requirements for a valid waiver depend on the circumstances of each case, including the nature of the constitutional right at issue and the defendant’s conduct, experience, and capabilities. See Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); State v. Stegall, 124 Wn.2d 719, 725, 881 P.2d 979 (1994); State v. Cham, 165 Wn. App. 438, 267 P.3d 528 (2011), petition for review filed, No. 86957-0 (Wash. Feb. 2, 2012). Humphries claims that his change of mind and decision to sign the stipulation was the product of earlier misinformation communicated by counsel and the court and suggests coercion occurred.⁷ For example, he contends, “The present situation involves counsel forcing [Humphries] to essentially agree that he is guilty as to most of the elements of the offense charged.” Appellant’s Reply Br. at 11-12. Nothing in this record supports the claims because the decision to change his mind and sign the stipulation before jury deliberations is “one that is influenced by trial strategy.” Woods, 143 Wn.2d at 609. That strategy and the responsibility for informing Humphries about his rights and discussing the risks and benefits of the decision resided with defense counsel, not the court. The claims about the reasons for his change of mind are speculative and involve matters outside the record — Humphries’ communications with counsel — that can be raised only in a personal restraint petition. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).

Harmless Error

¶27 Even if the trial court erred in accepting the stipulation over Humphries’ initial objection, the error was harmless. “A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985); see also State v. Frost, 160 Wn.2d 765, 779-82, 161 P.3d 361 (2007) (applying harmless error analysis to due process violation); Neder v. United States, 527 U.S. 1, 11-13, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (applying harmless error analysis where trial court erroneously omitted element to an offense in jury instruction and violated jury trial right). “[A]n instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder, 527 U.S. at 9. “[T]o determine that a constitutional error is harmless, it must appear beyond a reasonable doubt that the error did not contribute to the ultimate verdict.” State v. Berube, 150 Wn.2d 498, 505, 79 P.3d 1144 (2003). “Further, if the record supports a finding that the jury verdict would be the same absent the error, harmless error may be found.” Berube, 150 Wn.2d at 506.

¶28 The record here leaves no doubt that the jury would have reached the same result without the claimed error. Humphries asserted general denial to all the charges. Three experienced police officers testified to the facts summarized above. Humphries did not testify but called a well-known expert to testify about the effect of stress on memory accuracy. Humphries argues that harmless error analysis does not apply but cites to no controlling authority.⁸

¶29 Officers arrested Humphries within two minutes of the shooting near the location where the shooting occurred. Officer D’Ambrosia said Officer Ellithorpe described the two men. Officer D’Ambrosia saw the two men walking together, and Officer Ellithorpe positively identified Humphries and his companion as soon as he drove up as the two men involved in the shooting. Neither officer saw anyone else matching their description. Officer Ellithorpe identified Humphries within minutes of the shooting as the man wearing a gray hooded jacket who fired the gun at him. Although no gun was recovered, Officer Ellithorpe testified based on his training and experience that he saw Humphries’ “right hand come up to shoulder height, and then I heard a gunshot.” RP (Oct. 13, 2010) at 21. He immediately recognized the sound as a gunshot from a small caliber weapon. Humphries’ gray hooded jacket, cap, and sweatshirt were admitted into evidence. A recording of the dispatch call reporting the shooting and other information shared among the officers was also admitted as an exhibit.

¶30 The jury determined beyond a reasonable doubt that Humphries fired a gun at Officer Ellithorpe. Humphries does not appeal the second degree assault with a deadly weapon conviction or the firearm enhancement finding. He does not claim the decision to stipulate to a serious offense constitutes deficient performance. He does not dispute that the State, absent the stipulation, was fully prepared to present evidence of constitutionally valid prior serious offense convictions for first degree robbery, second degree robbery, and attempted second degree robbery. If the court had refused to accept defense counsel’s stipulation over Humphries’ initial objection, the State would have presented certified court documents showing his prior robbery convictions. We are confident beyond a reasonable doubt that under these circumstances, the jury’s verdict would have been the same. Any error here was harmless.

Ineffective Assistance of Counsel

¶31 Humphries asserts ineffective assistance of counsel based on trial counsel’s failure to request a limiting instruction regarding the "serious offense” stipulation. To prevail on an ineffective assistance claim, Humphries must demonstrate deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel’s performance is deficient where it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Our scrutiny of defense counsel’s performance is highly deferential and employs a strong presumption of reasonableness. Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335-36. If defense counsel’s trial conduct can be characterized as legitimate trial strategy or tactics, then it cannot serve as a basis for an ineffective assistance claim. State v. Lord, 117 Wn.2d 829, 883, 822 P.2d 177 (1991); see also State v. Grier, 111 Wn.2d 17, 42, 246 P.3d 1260 (2011) (“[T]he defendant bears the burden of establishing the absence of any ‘conceivable legitimate tactic explaining counsel’s performance.’ ” (quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004))). In order to estáblish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have been different absent counsel’s deficient performance. Strickland, 466 U.S. at 694; State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). Failure to make the necessary showing on either prong of the test defeats an ineffective assistance claim. Strickland, 466 U.S. at 697.

¶32 When, as here, counsel requests no limiting instruction regarding evidence of a prior conviction, we presume counsel sought to avoid reemphasizing the damaging evidence. State v. Dow, 162 Wn. App. 324, 335-37, 253 P.3d 476 (2011); see also State v. Yarbrough, 151 Wn. App. 66, 90-91, 210 P.3d 1029 (2009); State v. Price, 126 Wn. App. 617, 649, 109 P.3d 27 (2005); State v. Barragan, 102 Wn. App. 754, 762, 9 P.3d 942 (2000); State v. Donald, 68 Wn. App. 543, 551, 844 P.2d 447 (1993). Because defense counsel’s decision not to request a limiting instruction constitutes legitimate trial strategy, Humphries fails to show deficient performance. We are not persuaded by counsel’s subjective postverdict opinion that his decision not to request a limiting instruction was deficient performance. Humphries also points to nothing in the record that indicates the jury used the stipulation for an improper purpose. Humphries’ ineffective assistance claim fails because he establishes no deficient performance or prejudice. The court properly exercised its discretion by denying the new trial motion.

CONCLUSION

¶33 Because Humphries changed his mind and acquiesced to entry of the stipulation before trial ended, he waived or abandoned any claim that the trial court erred in allowing the stipulation over his objection. Even assuming no waiver or abandonment, any claimed error was harmless. And because the trial court did not abuse its discretion by denying the new trial motion, we affirm the judgment and sentence.

Appelwick, J., concurs.

1 Humphries assigns no error, cites no case authority, and presents no argument directly challenging his second degree assault conviction or firearm enhancement finding. State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995) (appellate court will not consider issues for which no assignment of error is made and no argument or legal citation is presented).

2 At trial, he described the clothing as a gray hooded jacket.

3 Less than two minutes passed between the time of Officer Ellithorpe’s initial report of the shooting and the time that Humphries was detained.

4 Humphries does not challenge the denial of his new trial motion premised on juror misconduct.

5 The “to convict” instruction provides in part:

“To convict the defendant of the crime of unlawful possession of a firearm in the first degree, each of the following elements of the crime must be proved beyond a reasonable doubt:

“(1) That on or about (date), the defendant [knowingly owned a firearm] [or] [knowingly had a firearm in [his] [her] possession or control];

“(2) That the defendant had previously been [convicted] [adjudicated guilty as a juvenile] [or] [found not guilty by reason of insanity] of [(name of serious offense)] [a serious offense]; and

“(3) That the [ownership] [or] [possession or control] of the firearm occurred in the State of Washington.”

11A Washington Practice: Washington Pattern Jury Instructions: Criminal 133.02, at 567 (3d ed. 2008) (alterations in original).

6 We are unpersuaded by Humphries’ attempt to distinguish Valladares. Humphries argues, “In that case, the defendant raised a suppression matter, but then affirmatively withdrew it from trial court consideration, effectively asking the trial court to now not rule.” Appellant’s Reply Br. at 5. He cites no case that holds that the principle of waiver is limited to issues in which a defendant deliberately avoids litigating an issue during trial as in Valladares. As noted below, waiver involves an intentional relinquishment or abandonment of a known right or privilege.

7 We are unpersuaded by Humphries’ arguments directed at minimizing the factual and legal significance of Humphries’ agreement with the strategic decision. Humphries plainly understood he had the right to disagree and object to his counsel’s strategic decision to stipulate because he voiced his objection and refused to sign the stipulation. He similarly understood he had a right to change his mind because he later signed the stipulation, indicating his agreement with counsel’s strategic decision.

8 Humphries argues that harmless error analysis is inapplicable here because “[a]s with an involuntary plea of guilty, no ‘harmless error’ analysis applies in which the State’s proof is judged by the evidence that could have been submitted in support of the improperly conceded elements.” We disagree premised on the well-settled case authority above. Appellant’s Br. at 11-12.