Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       No. 64763-6-I
                      Respondent,           )
                                            )       DIVISION ONE
       v.                                   )
                                            ) 
ANTHONY ORLANDO MACK,                       )       UNPUBLISHED OPINION
                                            ) 
                      Appellant.            )       FILED: January 30, 2012

       Spearman, J.  --  A jury convicted Anthony Mack of assault in the fourth 

degree. On appeal, he claims he received ineffective assistance of counsel 

because his attorney did not adequately impeach the victim about where the 

assault took place. We conclude he does not establish prejudice and affirm.

                                        FACTS

       Early in the morning on May 12, 2009, Mack sought a day job. He was 

unsuccessful and spent the day drinking two six-packs of beer and a bottle of 
fortified wine. In the evening, he went to the Seattle Motor Inn.1 Mack was drunk 

and being obnoxious, so the motel manager asked him to leave several times. 

He was drinking a large can of beer. The manager called the police, who came

to the motel and told Mack to leave or they would arrest him. Mack went behind 

the motel and continued drinking beer.

1 Mack referred to the Seattle Motor Inn at trial as the Black Angus Motel, its former name.  

No. 64763-6-I/2

       Approximately 20 minutes later Fay George, a housekeeper at the motel,

was cleaning a room on the first floor when Mack walked in. She had observed

his interactions with the manager and the police, so she told him to leave. He 

asked if George wanted to party. After she said no and that she was going to tell 

the manager that he had returned, Mack went outside and sat in a chair on the 

sidewalk between the motel room George was cleaning and the office. George

left the room, and as she passed by Mack, he jumped out of the chair, swore at 

her, and smacked her in the chest with his open beer can. Beer spilled out of the 

can and onto George's shirt and jacket. George reported the incident to the 

manager and called 911. The manager confronted Mack and asked him to leave.

He reacted angrily, swearing and waving his beer around, but eventually left. 

       Officer Nicolas Bowns arrived and spoke with George. Mack returned to 

the motel. He was carrying a bottle of liquor. By this time, other officers had 

arrived. Mack initially refused officers' repeated orders to get on the ground and 

was non-compliant, intoxicated, and belligerent. He threw the bottle to the 

ground near officers' feet. Eventually he got on the ground and was arrested. 

       Mack was tried before a jury on charges of robbery in the second degree, 
obstructing a law enforcement officer, and assault in the fourth degree.2 The 

assault charge was based on the incident involving George. At trial, Mack 

testified that he was drunk but had no memory of hitting George in the chest or 

2 The obstruction charge related to allegations that Mack repeatedly refused to listen to officers'
commands to cooperate and get down on the ground. The robbery charge related to allegations 
that Mack snatched several $20 bills from another housekeeper, Britini Rushing. 

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No. 64763-6-I/3

pouring beer on her. A jury convicted him of assault, acquitted him of obstructing 

a law enforcement officer, and deadlocked on robbery. He was sentenced within 

the standard range. 

                                    DISCUSSION

       On appeal, Mack claims that he received ineffective assistance of 

counsel. App. Brief at 6. Claims of ineffective assistance are mixed questions of 

fact and law that we review de novo.  In re Pers. Restraint of Brett, 142 Wn.2d 

868, 873, 16 P.3d 601 (2001).  Criminal defendants have the right to effective 

assistance of counsel under the Sixth Amendment to the United States 

Constitution and article I, section 22 of the Washington Constitution. To prevail 

on a claim of ineffective assistance, a defendant must satisfy the two-prong test 

under Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L.

Ed. 2d 674 (1984).  If a defendant fails to establish either prong, we need not 

inquire further.  State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996).

First, a defendant must show that counsel's representation fell below an 

objective standard of reasonableness.  Id. Counsel's errors must be "so serious 

that counsel was not functioning as the 'counsel' guaranteed the defendant by 

the Sixth Amendment." State v. Howland, 66 Wn. App. 586, 594, 832 P.2d 1339 

(1992). Second, it must be shown that counsel's deficient performance was 

prejudicial.  Hendrickson, 129 Wn.2d at 78.  Prejudice occurs when it is 

reasonably probable that but for counsel's errors, the result of the proceeding 

would have been different. Strickland, 466 U.S. at 694.  There is a strong 

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presumption of effective representation of counsel, and the defendant must show 

that there was no legitimate strategic or tactical reason for the challenged 

conduct.  State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).

       Mack claims he received ineffective assistance because defense counsel 

did not impeach George at trial with her prior inconsistent statements to Officer 
Bowns regarding the location of the assault.3 He argues that this showed that 

counsel was not adequately prepared and did not make a full and complete 

investigation of the facts and the law. He further contends he was prejudiced 

because impeachment on this point would have attacked George's credibility 

and convinced jurors that an inconsistency regarding such a basic fact must 

have meant George's entire story was fabricated. 

       The inconsistency asserted by Mack has to do with the suggestion in 

Bowns's report that the assault took place inside the motel room: 

       I spoke with a female victim (Fay George) at the Inn who said the 
       same suspect again returned, entered room 119 without authority, 
       and sat down. She knew of the suspect and the prior incidents and 
       told the suspect to leave. He confronted her, took a 40 ounce full 
       beer he was holding, struck her in the left chest, and spilled beer 
       on her jacket and clothing. As he walked from the room, the female 
       night manager (Heather Florence) confronted the suspect and told 
       him to leave.

George's testimony at trial was that she left the room she had been cleaning to 

notify the manager that Mack had returned, and that as she passed by Mack, 

3 Although Mack's opening brief described the prior inconsistent statements as George's police 
report, the State correctly points out that George did not provide police a written statement, and 
that Mack is actually referring to Officer Bowns's report of what George told him. 

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No. 64763-6-I/5

who was sitting in a chair on the sidewalk between the motel room and the 

office, "He jumped up out of the chair and started swearing at me. And then he --

and I just kept walking. Right as I walked by, he smacked me in the chest with 

the open beer that he had in his hand." George testified that Mack hit her with 

enough force on her upper chest that beer spilled out of the can and got all over 

the inside of her jacket and the front of her shirt.  

       Even assuming counsel's failure to impeach George on this point 

constitutes ineffective assistance of counsel, Mack cannot show he was 

prejudiced. It is not reasonably probable that, but for counsel's failure to impeach 

George about whether the assault took place inside or outside the motel room, 

Mack would have been acquitted of assault. First, the record reflects that the jury 

did hear other evidence that George reported the assault took place in the motel 

room. At trial, the State played a recording of George's conversation with the 

911 operator for the jury, during which George stated that Mack "just walked in 

the room I was cleaning and poured a beer on me." Thus, to the extent the 

inconsistency bore any significance at all, it was before the jury for 

consideration.

       Furthermore, the jury could have resolved any apparent inconsistencies in 

George's trial testimony and her previous statement to Bowns. The encounter 

between George and Mack, from when he entered the room until the assault on 

the sidewalk, was brief -- "[l]ess than a minute." The jury could have found that 

George, in describing the incident to Bowns, conflated or summarized certain 

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No. 64763-6-I/6

details. Or the jury could have inferred that Bowns's report misstated George's 

statement to him. We defer to the trier of fact on issues of conflicting testimony, 

credibility of witnesses, and the persuasiveness of the evidence. State v. 

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Walton, 64 Wn. 

App. 410, 415-16, 824 P.2d 533 (1992).

       Finally, the record shows that defense counsel did impeach George's 

testimony on at least one inconsistent statement, and did call George's 

credibility into question during closing argument. Therefore, it is not likely that 

impeachment on the one issue of whether Mack struck George with the beer can 

inside the motel room or outside the room would have made a difference in the 

outcome of the trial.

       We conclude that Mack does not meet the prejudice prong of Strickland.

       Affirmed.

WE CONCUR:

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