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Washington v. Doogan

filed: June 3, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
MARY E. DOOGAN, APPELLANT.



Superior Court County: King. Superior Court Cause No: 93-1-04076-4.SEA. Date filed in Superior Court: August 8, 1994. Superior Court Judge Signing: Judge Anthony Wartnik.

Written by: Judge Becker, Concurred by: Judge Ellington and Judge Coleman

Author: Becker

BECKER, J. -- Mary Ellen Doogan appeals her conviction for second degree promotion of prostitution. Because Doogan was denied effective assistance of counsel when her trial attorney proposed--and the jury received--an instruction including an uncharged alternative means, we reverse the conviction and remand for a new trial.

Doogan operated an escort service known as "A Personal Touch." Two of her employees, Kristin Olson and Rebecca Lund, testified at trial about their work for Doogan and Doogan's knowledge of the sexual nature of their work. Each testified that she made house calls for A Personal Touch. Each call involved going to a customer's house or hotel room for fifty minutes. Most calls involved sexual acts. Olson and Lund received $150 from each customer, and met Doogan after each call to give her a fifty to sixty dollar share.

I.

Promotion of prostitution in the second degree is a crime

that may be committed by two alternative means: profiting from prostitution, or advancing prostitution.*fn1 The State charged Doogan only with profiting from prostitution.

The instructions proposed by Doogan allowed the jury to convict if it found that she had committed the crime either by the charged means or by the uncharged alternative means of advancing prostitution. The State took no exception, and the court gave the instructions.

It is reversible error to try a defendant under an uncharged statutory alternative because it violates the defendant's right to notice of the crime charged.*fn2 But the error in this case has not been preserved for review. The invited error doctrine precludes review of any instructional error--even one of constitutional magnitude--where the challenged instruction is one that was proposed by the defendant.*fn3

Invited error is not a bar to review of a claim of ineffective assistance of counsel.*fn4 Doogan claims that trial counsel, in proposing the erroneous instruction, was ineffective. To prevail in a claim of ineffective assistance of counsel, Doogan must show that her counsel's conduct was deficient and that the conduct resulted in actual prejudice.*fn5

There is a strong presumption that counsel's conduct


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