MORGAN, J.
According to the State's evidence, Kathleen Dittmer obtained at least three restraining orders against her domestic partner, Niles Edward Sponaugle. He stalked her and called her on the phone while the third restraining order was in effect. The State charged him with felony stalking, and he was convicted by a jury. For a variety of reasons, Sponaugle claims that he received ineffective assistance from his trial counsel. We presume effective assistance. A defendant has the burden of showing ineffective assistance. To meet this burden, a defendant must show (a) deficient performance and (b) resulting prejudice.
State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1967).
McFarland, 127 Wn.2d at 334-35; Thomas, 109 Wn.2d at 225-26.
McFarland, 127 Wn.2d at 334-35; Thomas, 109 Wn.2d at 225-26.
1. Sponaugle claims counsel was ineffective because counsel proposed a `to convict' instruction that omitted one of the elements of felony stalking. As far as the record shows, counsel was merely trying to obtain a conviction for gross misdemeanor stalking. This may have been tactical, and it has not been shown to be deficient performance.
2. Sponaugle claims counsel was ineffective because counsel failed to interview certain witnesses before trial. We cannot tell from the record whom counsel interviewed before trial. Moreover, even if we assume that counsel failed to interview one or more persons, such failure is not by itself deficient performance. In re Pirtle, 136 Wn.2d 467, 488, 965 P.2d 593 (1998); State v. Piche, 71 Wn.2d 583, 590, 430 P.2d 522 (1967), cert. denied, 390 U.S. 912 (1968).
3. Sponaugle argues that counsel was ineffective because, after sentencing, counsel failed to advise him of his right to appeal. We allowed a late appeal, so there can be no prejudice.
4. Sponaugle claims that counsel rendered ineffective assistance by failing to ask the trial court to balance on the record the probative value and unfair prejudice emanating from two prior convictions for misdemeanor assault. We disagree. At trial, Sponaugle had the right to open his character for peacefulness but only by reputation evidence. ER 404(a)(1); ER 405(a). He broadly asserted, in response to a question about his relationship with Dittmer, that he `was never physically violent toward {Dittmer} or any woman ever.' As a result, (i) he opened his character for peacefulness in a way not sanctioned by the rules; (ii) the trial court had discretion to allow the State to make a proportional response in ways not sanctioned by the rules; and (iii) the trial court did not abuse its discretion by allowing the state to admit the two prior assaults.
Report of Proceedings at 311. At oral argument, Sponaugle suggested that counsel rendered ineffective assistance by failing to advise his client not to make such a sweeping statement. The record does not show such a failure.
5. Sponaugle claims that counsel rendered ineffective assistance by failing to object to evidence showing his prior bad acts. Such acts were admissible under ER 404(b) for the purpose of showing Dittmer's reasonable fear. There was neither deficient performance nor resulting prejudice when counsel failed to object.
At oral argument, Sponaugle suggested that counsel rendered ineffective assistance by not requesting a limiting instruction. Given that such an instruction would only have highlighted the other bad acts, not requesting it may well have been tactical, and thus not deficient performance.
6. Sponaugle claims that counsel rendered ineffective assistance by allowing an unadmitted exhibit, Identification 12, to go into the jury room. The record does not show that the problem was counsel's fault, or that the problem caused any prejudice to the defense.
7. Sponaugle claims that Dittmer recorded a message that he left on her phone answering machine in violation of RCW 9.73.030, and that the trial court erred by admitting the recording at trial. RCW 9.73.030 provides, however, that it is not unlawful to record a private communication after announcing `in any reasonably effective manner' that a recording will be made. The answering machine's only function was to record messages, Sponaugle knew that, and it was not unlawful to make the recording. In re Marriage of Farr, 87 Wn. App. 177, 184, 940 P.2d 679 (1997), review denied, 134 Wn.2d 1014 (1998).
8. Sponaugle claims that even if no one error meets the elements of ineffective assistance, the cumulation of errors does. Taking the record as a whole, however, we do not think that Sponaugle has borne his burden of showing either deficient performance or resulting prejudice.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
BRIDGEWATER, J.
ARMSTSTRONG, C.J.