State of Washington v. David Stewart Lewis
34347-2
| Wash. Ct. App. | Dec 7, 2017Background
- David Lewis, a banned former member, entered the Ephrata Athletic Club three times (Dec. 18 and twice on Dec. 19, 2015); security footage captured his furtive movements and distinctive jacket.
- After the Dec. 18 entry a patron reported stolen cash and small items; after the Dec. 19 entries other patrons reported missing cash and Lewis was seen leaving with different jackets and multiple pairs of shoes.
- Lewis was charged with three counts of second-degree burglary (one per entry) and two counts of third-degree theft; the State did not charge theft for some apparel recovered on Lewis.
- At trial the court gave a lesser-included instruction for criminal trespass only for the Dec. 18 burglary count; defense counsel urged the jury to convict on trespass for the Dec. 19 counts but did not request corresponding instructions.
- Jury verdicts: acquitted on both theft counts, guilty of trespass (lesser) for Dec. 18, and guilty of second-degree burglary for both Dec. 19 entries.
- Sentenced to a drug-offender alternative (19 months confinement + 19 months community custody) and community custody conditions including a mental health evaluation and prohibition on controlled substances except by physician prescription.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel's failure to request lesser-included trespass instructions for the Dec. 19 burglary counts constituted ineffective assistance | Lewis: counsel was ineffective for not requesting the instruction; jury convicted of trespass on Dec. 18, so it likely would have convicted of trespass (not burglary) for Dec. 19 if instructed | State: no prejudice shown; overwhelming evidence of intent to commit theft during Dec. 19 entries justified burglary convictions | Court assumed arguendo deficiency but found no prejudice under Strickland; affirmed burglary convictions |
| Proper standard for prejudice when counsel fails to request a lesser-included instruction (Grier v. Crace tension) | Lewis: asks court to reject Grier and adopt Ninth Circuit’s Crace approach (allowing reasonable probability review that jury would have convicted only of lesser offense) | State: bound by Washington Supreme Court precedent (Grier) but court here sidesteps deciding which standard controls because no prejudice even under the more favorable Crace test | Court declined to overrule Grier but concluded Lewis fails to show prejudice even under the laxer Crace standard |
| Sentencing errors: mental health evaluation condition and restricted language on controlled substances | Lewis: trial court failed to make required findings for mental health evaluation and mis-stated who may prescribe controlled substances | State: concedes both were erroneous; mental-health finding harmless because evaluation already occurred; custody condition language should mirror statute (allow prescriptions from authorized prescribers) | Court remanded for resentencing to correct community custody language; mental-health error harmless but controlled-substance condition must be rewritten to match RCW language |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective-assistance test: deficient performance and prejudice)
- State v. Grier, 171 Wn.2d 17 (Wash. 2011) (addresses counsel’s withdrawal of lesser-included instructions and frames prejudice analysis)
- Crace v. Herzog, 798 F.3d 840 (9th Cir. 2015) (rejects Grier’s prejudice approach; applies Strickland to consider reasonable probability jury would convict only of lesser offense)
- State v. Johnston, 143 Wn. App. 1 (Wash. Ct. App. 2007) (defendant must establish entitlement to lesser-included instruction to claim ineffective assistance for failing to request it)
- State v. Estes, 188 Wn.2d 450 (Wash. 2017) (clarifies defendant’s burden to affirmatively prove prejudice in ineffective-assistance claims)