The opinion
FILED
NOVEMBER 6, 2025
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
DIVISION THREE
STATE OF WASHINGTON, ) No. 40181-2-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
EDDIE JAMES DAVIS, )
)
Appellant. )
MURPHY, J. — A jury found Eddie James Davis guilty of second degree rape.
He was subsequently sentenced to life imprisonment as a persistent offender. Davis
appeals, alleging: (1) ineffective assistance of counsel when his trial attorney did not
impeach the complaining witness with prior criminal convictions, (2) the trial court
abused its discretion when it admitted testimony from a law enforcement officer about
prior contact that officer had with Davis during a criminal investigation unrelated to
Davis’s charged crime, and (3) the trial court improperly imposed a sentence based on
findings made by the sentencing court rather than a jury.
We affirm the conviction and sentence.
BACKGROUND
Law enforcement responded to the women’s mission at the Tri-City Union Gospel
Mission in Pasco regarding the theft of a virtual reality headset. A resident at the mission’s
No. 40181-2-III
State v. Davis
homeless shelter reported the headset was missing and suspected her roommate, H.G., 1
had taken the headset. While questioning H.G. about the theft, H.G. disclosed she had
been raped by “Eddie” at the Tahitian Inn in Pasco. 1 Rep. of Proc. (RP) (Sept. 8, 2023)
at 270. The investigation shifted to the alleged rape. H.G. was not charged with the theft
of the headset.
Law enforcement went to the Tahitian Inn and confirmed through video
surveillance footage that H.G. had been inside Davis’s room, noting the duration she
was in his room, and other comings-and-goings. Search warrants were executed to search
Davis’s room and obtain a DNA sample from Davis. Davis was arrested and agreed to
speak with law enforcement. Davis conceded he had sex with H.G. but said it was
consensual based on an “agreement for sex,” although the terms of the agreement were
not disclosed. 1 RP (Sept. 11, 2023) at 500. Once in custody, law enforcement utilized a
buccal swab to obtain a sample of Davis’s DNA.
Concurrently, a sexual assault kit was performed on H.G. at a medical facility.
H.G. was interviewed about the sexual assault by law enforcement, with her person and
body photographed, and her clothing was collected as evidence.
1
To protect the privacy interests of the victim in this case, we use her first and
last name initials throughout the body of this opinion. Gen. Order 2023-2 of Division III,
In re Matter of Victim Initials (Wash. Ct. App. Sept. 22, 2023), https://www.courts.wa.
gov/appellate_trial_courts/?fa=atc.genorders_orddisp&ordnumber=2023_3&div=III.
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Davis was charged with second degree rape. The State subsequently provided
notice that, pursuant to the Persistent Offender Accountability Act (POAA),
RCW 9.94A.030, .555, .570, it intended to seek a sentence of total confinement for life
without the possibility of release.
Defense theory of the case
In opening statements, both the State and Davis informed the jury that the facts
would show that H.G. was a drug addict and transient.
Defense counsel went on to tell the jurors during opening that H.G. came to
Davis’s room to “score drugs” by way of exchanging sex for drugs. 1 RP (Sept. 8, 2023)
at 256. As soon as H.G. secured drugs from Davis, she went into the bathroom and used
them. When H.G. came out of the bathroom, she was acting “paranoid,” and was “high”
and “hallucinating.” 1 RP (Sept. 8, 2023) at 257-58. “[T]hey tried to have sex but it [was]
not happening.” 1 RP (Sept. 8, 2023) at 258. When having sex did not work, Davis told
H.G. she owed him money for the drugs and H.G. then left. “Within the hour she’s being
accused of stealing something. She owes [Davis] money. And she’s busted stealing
something.” 1 RP (Sept. 8, 2023) at 258. “[W]hile she’s explaining what happened, she
says, ‘And by [the] way, I was raped about an hour ago.’” 1 RP (Sept. 8, 2023) at 259.
The defense theory was that H.G. only claimed she was raped to divert attention away
from herself and the theft investigation.
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Similar to opening statements, during closing argument Davis’s counsel told the
jury that the sexual assault allegation was made up by H.G. to divert law enforcement’s
attention away from the theft investigation, and the entire case was really about “[s]ex for
drugs.” 1 RP (Sept. 12, 2023) at 549-50.
ANALYSIS
Assistance of counsel
On appeal, Davis argues his counsel was ineffective for not impeaching H.G. with
her criminal history.
Prior to trial, the prosecuting authority disclosed H.G.’s criminal history, which
included convictions for the following crimes of dishonesty: (1) attempted second degree
theft in 2008, (2) taking a motor vehicle without permission in 2019, (3) third degree
theft in 2022, and (4) attempted theft of a motor vehicle in 2022. A pending false
statement charge was also disclosed. In a pretrial hearing, the State moved in limine to
prohibit the introduction of any crimes beyond the 10-year time limit for admissibility in
ER 609(b), and exclude reference to a pending criminal charge under ER 609(a) as there
was, as yet, no conviction. Addressing all of H.G.’s disclosed prior criminal history,
Davis’s counsel responded to this motion in limine with the following:
[DEFENSE COUNSEL]: Judge, usually I don’t dwell on crimes of
dishonesty. I may ask a question if they have a conviction, and I don’t get
into the specifics of the conviction.
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State v. Davis
This particular case arose out of a theft investigation from [H.G.]
that she was being investigated. I think both of us can agree that there’s no
way of getting out of that being brought forward.
With that being in front of us, I’m not going to—and I’ll give proper
notice if I end up changing my mind, which would mean simply thrown out
there that there was another conviction, that 20% that I might do that. I will
let the Court know and the state know, but very unlikely that I will bring
those old ones in. I’ll be content with the fact right there, the arrest was a
theft, and I’ll let the jury keep that as part of the dishonesty part, prong.
1 RP (Sept. 6, 2023) at 9 (emphasis added).
Davis claims his counsel performed deficiently by “depriving the [j]ury from
having a full picture of H.G.’s credibility.” Appellant’s Opening Br. at 24 (citing Reynoso
v. Giubino, 462 F.3d 1099, 1118 (9th Cir. 2006)). Davis contends that, with a lack of
physical evidence being present to support that he committed a crime, he was prejudiced
at trial because the credibility of witnesses was a critical component to his defense,
especially so because a conviction would be a third strike offense under the POAA. The
State points out that it did not hide the fact that law enforcement’s investigation in this
case began with a theft allegation levied against H.G., and if Davis’s counsel had cross-
examined H.G. on her criminal history “[t]he jury may have viewed [H.G.’s] history of
theft-related crimes not as a moral failing, but as the product of her [substance abuse]
addiction. This could have created sympathy for her.” Resp’t’s Br. at 10. The State takes
the position that Davis’s counsel was strategic in making a tactical trial decision to not
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No. 40181-2-III
State v. Davis
further attempt to discredit H.G. by going through her criminal history, and there was
neither deficient performance by Davis’s trial counsel nor any prejudice to Davis.
We review claims of ineffective assistance of counsel de novo. State v. Sutherby,
165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail, Davis must satisfy the two-prong
Strickland test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); see also State v. Jeffries, 105 Wn.2d 398, 417-18, 717 P.2d 722 (1986)
(quoting Strickland, 466 U.S. at 687). Under the first prong of Stickland, Davis must
show defense counsel’s performance was deficient by falling below an objective standard
of reasonableness based on all circumstances. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d
1260 (2011); Strickland, 466 U.S. at 688. Under the second prong, Davis must show
prejudice through a reasonable probability that, but for defense counsel’s deficiency,
the outcome would have been different. Strickland, 466 U.S. at 694. “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’”
Grier, 171 Wn.2d at 34 (quoting Strickland, 466 U.S. at 694).
First prong—deficient performance
Davis must overcome the strong presumption that defense counsel’s performance
was reasonable. See Grier, 171 Wn.2d at 33-34. When defense “counsel’s strategy can be
characterized as legitimate trial strategy or tactics, performance is not deficient.” State v.
Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). A defendant can “rebut the
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No. 40181-2-III
State v. Davis
presumption of reasonable performance by demonstrating that ‘there is no conceivable
legitimate tactic explaining counsel’s performance.’” Grier, 171 Wn.2d at 33 (quoting
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)). “Not all strategies or
tactics on the part of defense counsel are immune from attack.” Id. at 33-34. “‘The
relevant question is not whether counsel’s choices were strategic, but whether they were
reasonable.’” Id. at 34 (quoting Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct.
1029, 145 L. Ed. 2d 985 (2000)).
Prior convictions for crimes of dishonesty, such as theft, are admissible to attack a
witness’s credibility. ER 609(a)(2). Here, Davis’s counsel articulated in a pretrial hearing
the intention, although qualified, to not impeach H.G. with prior convictions as a strategic
choice. Defense counsel’s theory was that the sexual encounter was consensual, focusing
on the argument that drugs were exchanged for sex.
While defense counsel’s failure to impeach H.G. with her prior convictions was
clearly a conscious choice, it was not a reasonable choice in this case. Davis’s theory of
the case was that H.G. was lying about the rape to divert attention away from suspicion
that she had stolen items from another person. Under these circumstances, we can
conceive of no legitimate reason why counsel would not want to impeach H.G. with
evidence that she had been previously convicted of two felony crimes of dishonesty.
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No. 40181-2-III
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The State contends that the choice to refrain from introducing H.G.’s criminal
history was reasonable given the circumstances of this case. For example, the State
argues that defense counsel may have been trying to avoid alienating the jury by
appearing to attack a legitimate sexual assault victim. But this argument misses the point:
defense counsel was trying to demonstrate that H.G. was not a legitimate sexual assault
victim. The State also suggests that defense counsel may have wanted to refrain from
being aggressive with an otherwise sympathetic witness. But questioning a witness on
prior convictions for crimes of dishonesty does not have to be done in an aggressive
manner. Impeaching a witness is not inherently aggressive.
In any event, defense counsel’s stated reason for not impeaching H.G. with her
criminal history was not linked to the facts of this case. At the pretrial hearing, counsel
explained that it is their general practice to avoid introducing prior criminal history for
impeachment purposes. But under the circumstances of this case, when the defense
theory is based almost entirely on the veracity of one witness, we see no legitimate reason
for failing to introduce evidence of prior convictions for crimes of dishonesty that would
impeach that witness. That failure amounted to deficient performance.
Second prong—prejudice
Having determined that defense counsel’s failure to impeach H.G. with her prior
convictions for crimes of dishonesty was deficient performance, we conclude nonetheless
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No. 40181-2-III
State v. Davis
that counsel was not constitutionally ineffective because Davis fails to show this
deficiency resulted in prejudice. Although H.G.’s history of convictions for crimes of
dishonesty was not introduced into evidence, there was a significant amount of testimony
elicited from H.G. that touched upon her credibility.
Not long into H.G.’s direct examination at trial, she confirmed that on July 28,
2022, she had been accused of theft of a virtual reality headset from another resident of
the women’s homeless shelter. “[A] gal at the shelter wanted me to sell her, her virtual
reality set, to try and get drugs for her, but I wasn’t able to do that, and she ended up
saying that I stole it from her later on.” 1 RP (Sept. 12, 2023) at 464. H.G. said she
was “going to be arrested for that,” 1 RP (Sept. 12, 2023) at 464, prior to making the
disclosure to law enforcement about the rape. Davis’s counsel, in cross-examination,
successfully elicited testimony that H.G. “didn’t want to tell [law enforcement] the truth”
when questioned, and was not forthcoming when questioned by officers about the theft of
the virtual reality headset. 1 RP (Sept. 12, 2023) at 482.
H.G. also admitted that, at the time of the incident with Davis, she was “a pretty
heavy [drug] user,” with fentanyl being her daily drug of choice. 1 RP (Sept. 12, 2023)
at 461. On direct examination, H.G. agreed that her prolonged use of drugs affected her
memory. H.G. testified that she was currently attending treatment and had been sober for
almost one year. This was juxtaposed against her testimony on cross-examination that, on
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No. 40181-2-III
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the date of the incident with Davis, H.G. was in the throes of her “worst time[] of
addiction,” at which point she was four years into her addiction, and her agreement that
she had “consumed drugs even before [she] went to Mr. Davis’[s] room.” 1 RP (Sept. 12,
2023) at 478. Also on cross-examination, the jury heard H.G. talk about how while in
Davis’s room, she was grinding fentanyl pills to “smoke[] it on a foil,” and “[i]t’s a really
heavy drug” that made her feel “a little bit impaired.” 1 RP (Sept. 12, 2023) at 486-88.
This testimony was consistent with the defense theme that H.G. exchanged sex for
drugs, as opposed to being raped. The jury heard that H.G. was a drug addict, with the
addiction resulting in impaired memory, and that she was specifically impaired on the
day of her interactions with Davis due to multiple instances of using drugs.
Relative to how she came into contact with Davis, H.G. told the jury on direct
examination that she left the shelter, rode the bus to the Tahitian Inn, and began knocking
on doors to look for her runaway daughter. H.G. did this because she received a tip that
her daughter was at the Tahitian. One of the doors she knocked on was Davis’s. When
Davis opened the door, he invited her in. H.G. told the jury she was an acquaintance of
Davis “through other friends and stuff before,” but denied having ever bought drugs from
him. 1 RP (Sept. 12, 2023) at 463. On cross-examination, H.G. continued to maintain that
she “[j]ust knew of [Davis]” in passing, but later conceded she “had used drugs in a room
before and [Davis] was there.” 1 RP (Sept. 12, 2023) at 478-79.
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No. 40181-2-III
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On cross-examination, defense counsel questioned H.G. further on how she came
to knock on doors at the Tahitian Inn looking for her daughter. H.G. said that her
daughter, prior to being a runaway, had been at the Tahitian Inn before to see her dad and
uncle. H.G. described that a person named “Shadow,” who was now “deceased,” told
H.G. that her daughter had been seen at the Tahitian Inn. 1 RP (Sept. 12, 2023) at 479-80.
When challenged on whether H.G. recalled giving an interview earlier in time and saying
that it was her roommate at the shelter who told her that her daughter was at the Tahitian
Inn, H.G. testified one of her roommates at the mission was friends with Shadow, and
Shadow sometimes stayed at the Tahitian Inn, and H.G. learned about her daughter
potentially being at the Tahitian Inn from Shadow through the roommate.
Through all of this testimony, the jury heard that H.G. associated frequently and
regularly with criminal activity.
Because Davis does not establish prejudice under the second prong of Strickland,
he fails to show that his counsel was ineffective.
Law enforcement testimony and ER 404(b) evidence
Davis argues the trial court abused its discretion by allowing a law enforcement
officer to testify that he was aware of which room Davis rented at the Tahitian Inn
from a prior investigation regarding a stolen vehicle that was unrelated to charged crime
in this case. We review evidentiary rulings for abuse of discretion. See State v. Burke,
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No. 40181-2-III
State v. Davis
196 Wn.2d 712, 740-41, 478 P.3d 1096 (2021). Evidence of other crimes, wrongs, or acts
are inadmissible to prove character or propensity but may be admitted for other purposes
if the probative value outweighs prejudice. ER 404(b); ER 403.
Davis asserts that the trial court erred when it allowed irrelevant testimonial
evidence from Officer Jeremy Pellicer of the Pasco Police Department about an unrelated
criminal investigation. Davis claims this was an attempt to impugn his credibility. The
State argues that the testimony did not relate to prior bad acts of Davis and merely
showed the officer’s basis for knowing Davis was already an occupant of room 167 at
the Tahitian Inn.
We review a trial court’s ruling to admit or exclude evidence of misconduct under
ER 404(b) for an abuse of discretion. See State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d
937 (2009) “A trial court abuses its discretion where it fails to abide by the rule’s
requirements.” Id. “Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” ER 404(b).
Defense counsel objected when the State asked Officer Pellicer how he knew
Davis was an occupant of room 167 of the Tahitian Inn. Defense counsel’s basis for
objection was relevance and the State responded that the question went to the basis of
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No. 40181-2-III
State v. Davis
Officer Pellicer’s knowledge. The trial court overruled the objection and Officer Pellicer
was allowed to answer the question:
So a couple months prior to this, I often check the parking lot of the
Tahitian [Inn] because it’s a lower-cost motel, and it ends up that there are
a lot of people with stolen vehicles and warrants who end up in the parking
lot area of that motel. So I check it on a regular basis and run license plates
to see if vehicles were stolen. And on one occasion I found a vehicle,
because of its condition and everything, being [a] 90s model Hyundai,
and some of the other factors about it, it looked like it could be stolen. And
there was a male I saw get out of the vehicle and start walking away, and so
I contacted him. I identified him and was asking about the vehicle, and he
told me that, you know, there's nothing wrong with the vehicle or anything,
and he said he was going to go to room 165 and hang out there with [Davis]
if I had anymore questions for him. . . . [A]nd so the vehicle turned out it
was stolen. We checked back the cameras and had [the person I had spoken
to] driving the stolen vehicle. So I had probable cause at that time to arrest
him for possession of stolen motor vehicle. So I went to room 165 to try to
contact, recontact him, and found out that [Davis], that there’s nobody in
165, and it was room 167 where [Davis] was living, and I contacted
[Davis], and he said that that individual [from the parking lot] had not come
to hang out with him at all. And so it appeared at that time [the person I was
looking for] just told me that to give him a chance to leave the property as
soon as we figured out that we had probable cause to arrest he wouldn't be
there.
....
I’d seen [Davis] hanging out near the doorway before, and then after this,
this incident, I’d seen him come and go in and out of the door several times.
1 RP (Sept. 8, 2023) at 271-72.
The trial court did not abuse its discretion in allowing this testimony of Officer
Pellicer for two reasons. First, the testimony did not reveal any prior bad acts of Davis.
Officer Pellicer’s testimony here was that he encountered Davis in room 167 of the
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No. 40181-2-III
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Tahitian Inn in the context of searching for a person Officer Pellicer encountered earlier
who had been driving a stolen vehicle. Davis was not a suspect in that crime. Second,
in the context of the investigation of H.G.’s allegation of rape by Davis, this testimony
explained how Officer Pellicer knew that Davis was living in room 167 of the Tahitian.
Officer Pellicer’s testimony was not improper evidence that showed other crimes,
wrongs, or acts of Davis that would be inadmissible under ER 404(b). Even if it had,
the trial court did not abuse its discretion because Officer Pellicer’s testimony regarded
knowledge, which is an explicit exception in ER 404(b).
Sentencing
Davis argues that the trial court improperly imposed a life sentence based on
findings made solely by the sentencing judge. Specifically, Davis argues that any fact that
increases his punishment must be found by a unanimous jury. He claims that the question
of whether he was convicted of two prior strike offenses for purposes of the POAA are
facts that are appropriately determined by a jury, not by a sentencing court. The State
responds that our Supreme Court has long held there is no entitlement to a jury
determination of prior convictions for POAA sentencing. We agree with the State.
Life sentencing under the POAA
In this case, a jury convicted Davis, as charged, of second degree rape. The State
had provided pretrial notice to Davis that, pursuant to the POAA, if Davis was convicted
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No. 40181-2-III
State v. Davis
as charged it intended to seek a sentence of life imprisonment without the possibility
of release. Approximately one month prior to sentencing, the State filed a sentencing
memorandum that included certified copies of (1) a judgment and sentence for Davis’s
August 3, 2000, conviction for second degree assault and taking a motor vehicle without
permission, and (2) a judgment and sentence for Davis’s December 10, 2002, conviction
for second degree assault. It was the State’s position that these assault convictions and
Davis’s current conviction for second degree rape qualified as strike offenses for
purposes of the POAA as most serious offenses. 2
After reviewing the submissions of the parties and hearing argument, the
sentencing court found that Davis’s 2000 and 2002 second degree assault convictions
qualified as strike offenses under the POAA. The sentencing court further found that
Davis’s current second degree rape conviction constituted Davis’s third strike for POAA
sentencing. Davis was sentenced to life without the possibility of parole.
Under the POAA, “[a]n offender who has been convicted of two strike offenses
must be sentenced to life without parole upon conviction for a third such offense.”
In re Pers. Restraint of Lavery, 154 Wn.2d 249, 254, 111 P.3d 837 (2005) (citing former
RCW 9.94A.120(4) (1998), recodified as RCW 9.94A.505 (LAWS OF 2001, ch. 10, §6));
2
See also CP at 174 (Davis’s criminal history within the Department of
Corrections presentence investigation report).
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No. 40181-2-III
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see also RCW 9.94A.030, .561, .565, .570. Davis relies on Erlinger v. United States,
602 U.S. 821, 144 S. Ct. 1840, 219 L. Ed. 2d 451 (2024), to claim a jury, and not a judge,
must determine whether he was convicted of two prior strike offenses before he can be
sentenced under the POAA for his current conviction. Based on recent case law, this
claim fails.
Prior to Erlinger, Washington had long held, for the purposes of POAA, that “a
judge may find the fact of a prior conviction by a preponderance of the evidence.” State
v. Witherspoon, 180 Wn.2d 875, 892, 329 P.3d 888 (2014) (citing State v. Manussier,
129 Wn.2d 652, 681-84, 921 P.2d 473 (1996). It has been “repeatedly held that the right
to jury determinations does not extend to the fact of prior convictions for sentencing
purposes.” Id. at 892-93 (citing State v. McKague, 172 Wn.2d 802, 803 n.1, 262 P.3d
1225 (2011) (per curiam); Lavery, 154 Wn.2d at 256; State v. Smith, 150 Wn.2d 135,
139, 75 P.3d 934 (2003)).
Since Erlinger, Washington’s position remains that a judge may find the fact of a
prior conviction. In State v Frieday, Jeremy Frieday argued, based on the Erlinger
decision, that the trial court violated his rights under the Fifth and Sixth Amendments
to the United States Constitution when a judge, not a jury, decided factual comparability
of his prior convictions. 33 Wn. App. 2d 719, 742-43, 565 P.3d 139, review denied,
__ Wn.3d __, 574 P.3d 539 (2025). Division Two of this court in Frieday agreed with
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No. 40181-2-III
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Division One that Erlinger should be limited to resolving the Armed Career Criminal
Act, a specific federal statute, and “does not overrule well-established Washington
precedent.” Id. at 745-47. Division One had previously stated that “Erlinger’s holding is
limited to resolving [the] ACCA’s occasions inquiry and does not overrule our state’s
well-established precedent” that the fact of a prior conviction can be determined by a
judge even when used to increase a criminal sentence. State v. Anderson, 31 Wn. App. 2d
668, 681, 552 P.3d 803, review denied, 3 Wn.3d 1034, 559 P.3d 1013 (2024)).
We agree with the holdings in Frieday and Anderson, and reject Davis’s argument
that a jury, rather than the trial court, is required to determine whether he was convicted
of two prior strike offenses. Washington’s longstanding precedent that a judge may find
the fact of a prior conviction for POAA sentencing remains unaffected.
Affirmed.
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Murphy, J.
WE CONCUR:
Lawrence-Berrey, C.J. Staab, J.
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