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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                          )            No. 66429-8-I
                                              )          
                      Respondent,             )         DIVISION ONE
                                              )
             v.                               )
                                              )
GERARDO ORTIZ,                                )         UNPUBLISHED
                                              )
                      Appellant.              )         FILED: April 23, 2012
                                              )
                                              )

       Cox, J.  --  Gerardo Ortiz appeals his judgment and sentence on one count 

of first degree burglary  --  domestic violence and one count of second degree 

assault  --  domestic violence. His failure to object to testimony regarding a prior 

incident of abuse precludes appellate review of its admission into evidence. 

Additionally, there is no showing of ineffective assistance of counsel.  We affirm.

       Ortiz and N.L. were in a dating relationship.  One night, the couple 

attended a party.  N.L. testified that Ortiz wanted to leave the party because he 

was upset that she was talking to another man.  After they returned to N.L.'s 

apartment, Ortiz severely beat her in front of her two-year-old son.

       The State charged Ortiz by amended information with one count of first 

degree burglary  --  domestic violence, one count of second degree assault  -- 

domestic violence, and one count of first degree kidnapping.  

       Ortiz testified at trial.  The jury acquitted him on the kidnapping charge,  

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but convicted him on the burglary and assault counts.  It also returned a special 

verdict finding that the assault was an aggravated domestic violence offense 

because it occurred within the sight of N.L's child.

       Ortiz appeals. 

                         ADMISSION OF PRIOR BAD ACT

       Ortiz challenges the admission of evidence that he hit N.L. a week before 

the charged crime, arguing it was improperly admitted as evidence of a prior bad 

act in violation of Evidence Rule (ER) 404(b). We disagree.

       Under ER 404(b), evidence of other crimes, wrongs, or acts is 

inadmissible to show conformity with prior crimes, wrongs, or acts.  But, "[p]roper 

objection must be made at trial to perceived errors in admitting or excluding 
evidence and failure to do so precludes raising the issue on appeal."1

       Here, during direct examination, N.L. testified to an argument with Ortiz a 

week before the charged offense.  During a party with Ortiz's friends, N.L. told a 

story about going backstage at a David Lee Roth concert.  Ortiz was 

embarrassed that N.L. told this story to his friends and the two argued about it.  

During the argument, Ortiz punched N.L. in the arm, leaving a bruise.    

       Ortiz did not object to this testimony. And he does not argue why we 

should reach this argument on appeal under Rule of Appellate Procedure 2.5(a) 

       1 State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004), abrogated in 
part on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 
158 L. Ed. 2d 177 (2004) (citing State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 
1182 (1985)).

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or other authority.  Therefore, we decline to address it.

                   INEFFECTIVE ASSISTANCE OF COUNSEL

       Ortiz argues that he was denied effective assistance of counsel because 

his attorney failed to object to N.L.'s testimony regarding the prior abuse

described above.  We disagree.

       To prevail on a claim of ineffective assistance of counsel, a defendant 

must show that his counsel's performance fell below an objective standard of 
reasonableness and that the deficient performance prejudiced his trial.2 The 

reasonableness inquiry presumes effective representation and requires the 

defendant to show the absence of legitimate strategic or tactical reasons for the 
challenged conduct.3 To show prejudice, the defendant must show that, but for 

the deficient performance, there is a reasonable probability that the outcome at 
trial would have been different.4 "A defendant must affirmatively prove 

prejudice, not simply show that 'the errors had some conceivable effect on the 
outcome.'"5 If one of the two prongs of the test is absent, the court need not 

       2 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 
2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 
(1995).

       3 McFarland, 127 Wn.2d at 336.

       4 In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).

       5 State v. Crawford, 159 Wn.2d 86, 99, 147 P.3d 1288 (2006) (quoting 
Strickland, 466 U.S. at 693).

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inquire further.6 We review ineffective assistance of counsel claims de novo.7

       Here, we need not decide whether defense counsel's failure to object fell 

below an objective standard of reasonableness because Ortiz cannot show that

he was prejudiced.  Ortiz argues that this case "turned on the relative credibility

of the accused and the accuser" and that any evidence admitted to improperly 

disparage his credibility was prejudicial to him.  This is not affirmative proof of 

prejudice.  

       N.L. testified that Ortiz began hitting her as soon as they entered her 

apartment around midnight and continued to hit her intermittently until he left 

around 4:30 a.m.  The court also admitted photographs of N.L.'s injuries taken 

later that day.  Given this evidence, even if N.L.'s testimony about the prior 

incident of abuse had been excluded, it is unlikely that the jury's decision would 

have been affected.  Therefore, Ortiz fails to show the prejudice prong of

ineffective assistance of counsel.

       We affirm the judgment and sentence.

WE CONCUR:

       6 Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 
P.3d 726 (2007).

       7 In re Pers. Restraint of Fleming, 142 Wn.2d 853, 865, 16 P.3d 610 
(2001).

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