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. 65995-2-I
                       Respondent,
        v.                                          DIVISION ONE

 JOSEPH ARON DEMMON,                                UNPUBLISHED OPINION

                       Appellant.                   FILED:  March 5, 2012

        Leach, J.  --  Joseph Demmon appeals his conviction for first degree 

 burglary.  He claims counsel provided ineffective assistance by failing to object 

 to a police officer's testimony that he searched for and found the vehicle 

 Demmon drove from the crime scene in Everett's "higher crime areas."           Because

 Demmon cannot demonstrate the prejudice necessary to prevail on an 

 ineffective assistance of counsel claim, we affirm.

                                      Background

        On April 10, 2009, Joseph Demmon and Emerson Miller devised a plan to 

 rob Demmon's acquaintance "Ricky" at Ricky's house on Everett's Bedrock 

 Avenue.  At approximately 10:30 a.m., Demmon and Miller drove to Ricky's 

 house, where they hoped to find "money and Oxycontins."            When they arrived, 

 they knocked on the door.  Fourteen-year-old Nathan Mationg and his adult  

No. 65995-2-I / 2

cousin Andrea Leffingwell went to the door, and Mationg looked through the 

peephole.1    He saw two individuals he did not recognize, later identified as 

Demmon and Miller.  Mationg reluctantly opened the door after one of the men 

said his name.  

       Demmon and Miller then forced their way through the open door and into 

the house, where they struggled with Mationg and Leffingwell.  Demmon placed 

Mationg in a headlock and began choking him.  Miller pulled out what appeared 

to be a handgun and pointed it at Leffingwell, who had fallen to the floor.2  

During the struggle, Demmon and Miller demanded money from Mationg and 

Leffingwell.  Mationg eventually broke free from Demmon and ran out of the 

house.

       After Mationg left, Demmon went upstairs, where he attempted to force 

open a locked closet.  Miller told Demmon to hurry.  Demmon came back 

downstairs empty-handed.  As Demmon and Miller were leaving the house, 

Miller grabbed a laptop computer from the living room.  Demmon and Miller ran 

to a silver car and drove away.  Mationg, who had had gone to a neighbor's 

house, chased after the car and memorized its license plate number.  Mationg 

related the number to his neighbor, who was on the phone with a 911 operator. 

       City of Everett Police Sergeant Richard Wolfington heard the call for 

       1 Leffingwell was at the house to baby-sit Mationg and his two younger 
brothers.  
       2 Miller testified that he was carrying an "Airsoft pistol," which is a type of 
BB gun that looks real.  

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No. 65995-2-I / 3

assistance at the Bedrock Avenue house over dispatch and drove toward the 

scene.  At some point, officers who were already on the scene advised that the 

suspects had left the area in a silver Infinity with the license plate number 615-

YMG.  Sergeant Wolfington then began to search for the vehicle, which he 

located in front of room 124 at the Sunrise Motor Inn.

       Sergeant Wolfington called for backup at the motel.  When Officer Jeff 

Hendrickson arrived, Sergeant Wolfington tasked him with discovering who was 

in room 124.  Hendrickson reviewed the motel's surveillance video footage, 

which showed two individuals exiting the silver Infinity.  One entered room 124 

and the other entered room 223.  The motel's records indicated that Demmon 

had rented room 124 using a photo ID.  When officers searched room 124, they 

found Demmon's identification.3       Additionally, in searching the silver Infinity, 

officers found a bottle of prescription drugs in Demmon's name.  Officers found 

the laptop in room 223, which Miller had occupied.  

       The State charged Demmon with first degree robbery and first degree 

burglary.  Miller pleaded guilty to first degree robbery and received a reduced 

sentence in exchange for his agreement to testify against Demmon at trial.  At 

Demmon's trial, Mationg, Leffingwell, and Miller testified to the events that 

occurred at the Bedrock Avenue house.  Sergeant Wolfington also testified, and 

the State asked him how he located the car that the suspects drove from the 

       3 The police did not find any property from the Bedrock Avenue house in 
Demmon's room.  

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No. 65995-2-I / 4

crime scene.  This colloquy followed:

              A:      [T]he officers on scene advised that a car had 
                      reportedly left the area with the suspects in it and so I 
                      began to look for the car with the description that they 
                      had given.
                      . . . . 
              Q:      Now, when you are attempting to locate a specific 
                      vehicle, specifically within a general area of Everett, 
                      how do you go about doing that?
              A:      Depending on the time and proximity of when the 
                      information came out, and if it's fresh information and 
                      they just left the scene, then I would head towards the 
                      scene.  If the information was a little bit older and 
                      they've had time to leave, then I will usually check the 
                      main thoroughfares.  And if they are not on those, 
                      then often I will go check some of our higher crime 
                      areas . . . .
              Q:      On April 10th, what did you do?
              A:      After I didn't happen to pass the car or see it on any 
                      of our main roads, I began to check some of our 
                      higher crime areas.
              Q:      When you say higher crime areas, do you mean 
                      specific apartment complexes, motels, streets?  What 
                      do you mean by higher crime areas?
              A:      Yes, sir, particular apartment complexes, some of our 
                      hotels, things like that.
                      . . . . 
              Q:      Did you eventually find that car?
              A:      I did.
              Q:      And where did you find it and approximately what 
                      time did you find it?
              A:      It was at the Sunrise Motor Inn, at approximately
                      11:45 hours.

Demmon's counsel did not object to Sergeant Wolfington statements about 

looking for the suspects' vehicle in Everett's "higher crime areas."  

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No. 65995-2-I / 5

       A jury acquitted Demmon of first degree robbery but found him guilty of 

first degree burglary.  Demmon appeals, claiming he received ineffective 

assistance of counsel.

                                 Standard of Review

       Claims of ineffective assistance of counsel involve mixed questions of fact 

and law that we review de novo.4

                                       Analysis

       The state and federal constitutions guarantee criminal defendants the 

right to effective assistance of counsel.5     To establish ineffective assistance, a 

defendant must show (1) that counsel performed deficiently and (2) that the 

deficient performance resulted in prejudice.6     Counsel's performance is deficient 

if it falls below an objective standard of reasonableness.7 Prejudice occurs when 

it is reasonably probable that, but for counsel's error, the outcome of the 

proceedings would have been different.8       If the defendant fails to establish either 

prong, we need not inquire further.9  

       To establish deficient performance based on counsel's failure to object to 

certain evidence, a defendant must show that the trial court would have likely 

       4 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001). 
       5 U.S. Const. amend. VI; Wash. Const. art. I, § 22. 
       6 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 
2d 674 (1984).
       7 State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
       8 State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
       9 State v. Hendrickson, 129 Wn.2d  61, 78, 917 P.2d 563 (1996).

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No. 65995-2-I / 6

sustained the objection.10     Here, however, we need not consider whether an 

objection to Sergeant Wolfington's testimony would have been sustained.  Even 

assuming  that  counsel's failure to object       constitutes  deficient performance, 

Demmon cannot demonstrate prejudice.  

       The State presented overwhelming evidence that Demmon committed 

burglary.  A person is guilty of first degree burglary if 

       with intent to commit a crime against a person or property therein, 
       he or she enters or remains unlawfully in a building and if, in 
       entering or while in the building or in immediate flight therefrom, 
       the actor or another participant in the crime (a) is armed with a 
       deadly weapon, or (b) assaults any person.[11]

Here, Miller testified that he and Demmon planned to rob Ricky at his house.  

Mationg and Leffingwell testified that Miller and Demmon forcibly entered the 

Bedrock Avenue house, tried to restrain them, and demanded money.  They also 

testified that Miller was armed with what appeared to be a gun.  Miller's 

testimony about what occurred at the Bedrock Avenue house was consistent 

with that  of Mationg and Leffingwell.  Additionally, Mationg positively and 

unequivocally identified Demmon both directly after the incident and in court.  

Finally, Everett police officers linked Demmon to the vehicle the suspects drove 

from the crime scene.  Considering the strength of this evidence, we cannot say 

with reasonable probability that the jury would have acquitted had they been 

       10 Hendrickson, 129 Wn.2d at 79-80; see also State v. Saunders, 91 Wn. 
App. 575, 578, 958 P.2d 364 (1998).
       11 RCW 9A.52.020.

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No. 65995-2-I / 7

prevented from considering the testimony that officers searched for the car in a 

"higher crime area."  

       Demmon contends that Sergeant Wolfington's testimony made it more 

likely that the jury would convict based on Demmon's criminal propensity.  But 

this argument assumes that the State's evidence was weak.  As discussed 

above, the State's evidence was overwhelming.  Given the strong evidence 

against him, it is not reasonably probable that the jury would have acquitted 

Demmon  of  burglary had his counsel successfully  objected to Sergeant 

Wolfington's testimony. Demmon's ineffective assistance claim fails.

                                      Conclusion

       Because Demmon cannot demonstrate the prejudice necessary to 

establish ineffective assistance of counsel, we reject his claim and affirm his 

conviction.

WE CONCUR:

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