Court of Appeals Division III
State of Washington

Opinion Information Sheet

			

                                                                  FILED

                                                                JAN 24 2012

                                                        In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                           )       No. 28842-1-III
                                               )
                             Respondent,       )
                                               )
                      v.                       )       Division Three
                                               )
ALEJANDRO OLIVAREZ BARRON,                     )
                                               )
                             Appellant.        )       UNPUBLISHED OPINION

       Korsmo, A.C.J.  --  Alejandro Barron argues that his attorney performed 

ineffectively by declining a voluntary intoxication instruction at trial.  This tactical 

decision is not a basis for finding deficient performance.  Mr. Barron's conviction for 

harassment is affirmed.

                                            FACTS

       Mr. Barron, an Arizona resident, returned to his former home town of Toppenish 

in July 2009.  Several years earlier his younger brother had been murdered in Toppenish. 

The police have not solved the crime, but Mr. Barron believes he knows who committed  

No. 28842-1-III
State v. Barron

it.  Mr. Barron checked into a hotel and spent the evening of July 28 and the early 

morning of the 29th drinking.

       A friend gave him a ride to the grocery store later on the morning of the 29th. 

They never made it to the store.  Divergent versions of what happened were related at 

trial.

       Mr. Maurilio Martinez, the father of the man Mr. Barron suspected in the murder 

of his brother, testified that a black car stopped in his driveway and Mr. Barron got out.  

Mr. Barron called him a "son of a bitch" and stated that he "came to kill" Mr. Martinez.  

Mr. Martinez went inside to call 911; Mr. Barron continued to yell after him.  Mr. 

Martinez's wife also heard Barron threaten to kill her husband.  Their daughter also 

testified that Mr. Barron was yelling for her father to come out of the house.

       Mr. Barron testified that he got out of the car, stood in the middle of oncoming 

traffic, and yelled at the sky.  He was promising his brother that he would find the killer.  

Mr. Barron also testified that he did not know that Mr. Martinez lived at the location 

where he got out and made his pronouncements. Mr. Barron told the jurors that he had 

been drinking, but remembered the events of July 29.

       Officer Tom Radke arrived in response to the 911 call and observed Mr. Barron in 

the middle of the street yelling and flailing his arms. Mr. Barron tried to walk away and 

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No. 28842-1-III
State v. Barron

would not respond to the officer, who ultimately had to take him into custody at gun 

point. The officer testified that he could smell intoxicants on Mr. Barron, and the man's 

eyes were watery and his speech was slurred.  He described Barron as upset and agitated.

       One count of felony harassment was charged and the case proceeded to jury trial.  

The trial judge asked defense counsel if he desired a voluntary intoxication instruction.  

Defense counsel told the court he did not want the instruction because his client knew 

what was happening.  The defense approach to the case was to discredit the State's 

witnesses and argue that Mr. Barron was talking to the sky, not to Mr. Martinez.

       The jury convicted Mr. Barron as charged.  The trial court imposed a standard 

range sentence of 33 months.  Mr. Barron then timely appealed to this court.

                                         ANALYSIS

       Counsel for Mr. Barron has filed a brief that challenges trial counsel's decision to 

forego a voluntary intoxication instruction.  In a Statement of Additional Grounds (SAG), 

Mr. Barron challenges trial counsel's performance on other grounds and presents 

additional challenges.  We will address the attorney performance arguments jointly before 

addressing the remaining SAG arguments.

       Attorney Performance

       The Sixth Amendment guarantees the right to counsel.  An attorney must perform 

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No. 28842-1-III
State v. Barron

to the standards of the profession; failure to live up to those standards will require a new 

trial when the client has been prejudiced by counsel's failure.  State v. McFarland, 127 

Wn.2d 322, 334-335, 899 P.2d 1251 (1995).  In evaluating ineffectiveness claims, courts 

must be highly deferential to counsel's decisions.  A strategic or tactical decision is not a 

basis for finding error.  Strickland v. Washington, 466 U.S. 668, 689-691, 80 L. Ed. 2d 

674, 104 S. Ct. 2052 (1984).  Under Strickland, courts apply a two-prong test: whether or 

not (1) counsel's performance failed to meet a standard of reasonableness and (2) actual 

prejudice resulted from counsel's failures.  Id. at 690-692.  When a claim can be disposed of 

on one ground, a reviewing court need not consider both Strickland prongs.  State v. 

Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).

       Appellate counsel contends that trial counsel erred in declining the intoxication 

instruction, arguing that it would have assisted in a defense that Mr. Barron was not 

acting knowingly.  The SAG contends that counsel erred by failing to properly cross-

examine two of the State's witnesses.

       The decision to decline an intoxication instruction was clearly a tactical decision.  

Trial counsel expressly told the court he did not want the instruction and stated that it was 

not necessary to advance the defense theory of the case.  While appellate counsel has 

ably argued that an intoxication defense could have been pursued based on Mr. Barron's 

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No. 28842-1-III
State v. Barron

alleged inability to know what he was doing, trial counsel expressly chose not to pursue 

such a defense.  That tactical decision is immune from challenge under Strickland.

       It is still possible for a tactical decision to be unreasonable and, hence, a basis for 

finding counsel ineffective.  State v. Grier, 171 Wn.2d 17, 33-34, 246 P.3d 1260 (2011).  

The decision was not unreasonable in this case.  Mr. Barron testified that he knew what 

he was doing and had a good memory of events.  Pursuit of an intoxication defense would 

have been inconsistent with Mr. Barron's own testimony.  Under these facts, trial counsel 
behaved reasonably.  There was no basis for finding that trial counsel erred.1

       The allegation that counsel ineffectively cross-examined two witnesses fails 

factually and legally.  The claim fails factually because Mr. Barron, although providing 

the cross-examination he challenges, does not explain how he believes counsel erred.  It 

also fails legally because even lame or ineffectual cross-examination does not establish 

ineffective assistance of counsel.  In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 489, 

965 P.2d 593 (1998).

       Mr. Barron has not established that his counsel erred, nor has he established 

prejudice from counsel's performance.  Accordingly, he has not established that counsel 

       1 In light of this conclusion, we need not address the prejudice prong.  Foster, 140
Wn. App. at 273.  However, it does appear that the intoxication theory was irrelevant 
given Mr. Barron's own testimony, so it would be very difficult to conclude that any
prejudice existed. 
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State v. Barron

provided ineffective assistance.

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No. 28842-1-III
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       Remaining SAG Issues

       Mr. Barron also argues in his SAG that the evidence was insufficient to support 
the conviction and that his offender score was incorrectly calculated.2 We briefly will 

address each claim.

       Evidence is sufficient to support a conviction if, viewing the evidence most 

strongly in favor of the State, there was evidence from which the jury could find each 

element of the offense beyond a reasonable doubt.  State v. Green, 94 Wn.2d 216, 221-

222, 616 P.2d 628 (1980).  That standard was met in this case. 

       Felony harassment is committed when a person unlawfully threatens to kill another 

and the person's words or conduct create a reasonable fear that the threat will be carried 

out.  RCW 9A.46.020(1), (2).  There was evidence from which the jury could find each 

of these elements.  The testimony of Mr. and Mrs. Martinez supported the threat to kill 

element, and the testimony of all three Martinez family members supported the 

reasonable fear element.  The fact that Mr. Barron and his friend provided contrary 

evidence was a matter for the jury to consider. The job of the reviewing court is to see if 

there was sufficient evidence to support what the jury did, not reweigh the evidence 

presented.  The jury was entitled to accept the Martinez family's testimony.  That 

       2 He also raises a cumulative error argument, but because we conclude there were 
no errors, there is no basis for finding cumulative error. 
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No. 28842-1-III
State v. Barron

evidence supports the verdict.

       Finally, Mr. Barron argues that six of his prior convictions should not have been 

counted in his offender score because they were too old to be used pursuant to ER 

609(b).  His claim is without merit.  Scoring of criminal history is controlled by statute, 

not court rule.  RCW 9.94A.525(2) specifies the circumstances under which prior 

convictions will no longer be used to compute an offender score.  ER 609, which governs 
the use of prior convictions at trial to impeach a witness, is not apropos.3  

       The arguments presented in the SAG are without merit.  Accordingly, the 

conviction is affirmed.

       A majority of the panel has determined this opinion will not be printed in the 

       3 Even if the court rule had any relevance, it still would not have supported Mr. 
Barron's theory.  Convictions over ten years of age can be used for impeachment under 
appropriate circumstances.  ER 609(b). 
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No. 28842-1-III
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Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

                                            _________________________________
                                                           Korsmo, A.C.J.

WE CONCUR:

______________________________
       Brown, J.

______________________________
       Siddoway, J.

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