FILED
JULY 24, 2014
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. 31244-5-111
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Respondent, )
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v. )
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DAVID WAYNE HALLS, ) UNPUBLISHED OPINION
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Appellant. )
BROWN, J. - David W. Halls appeals his second degree assault - domestic
violence conviction. He contends his conviction lacks sufficient supporting evidence
because the State failed to prove he intentionally meant to harm his girl friend. He
further contends the trial court erred in accepting his jury waiver, allowing him to
represent himself at trial, and in failing to conduct a competency hearing. Finally, Mr.
Halls contends he received ineffective assistance of counsel. We reject Mr. Halls'
contested contentions and find no merit in his pro se statement of additional grounds for
review (SAG). But considering RCW 9.94A.701, we accept the State's error concession
regarding the trial court's error in sentencing Mr. Halls to a variable term of community
custody. See State v. Franklin, 172 Wn.2d 831,836,263 P.3d 585 (2011) ("a court may
no longer sentence an offender to a variable term of community custody [that is]
contingent on the amount of earned release but instead, it must determine the precise
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length of community custody at the time of sentencing."). Accordingly, we affirm Mr.
Halls' conviction and remand for the limited purpose of correcting his judgment and
sentence to remove the offending community custody condition.
FACTS
According to the State's evidence, during an argument between Mr. Halls and his
live-in girl friend, Rhonnda Harshman, Mr. Halls grabbed Ms. Harshman by the throat
and pushed her onto the bed. He then picked up a glass candleholder and threw it at
Ms. Harshman, hitting her on the head and causing a laceration. Ms. Harshman was
transported to the hospital where she received stitches to close the wound.
The State charged Mr. Halls with second degree assault - domestic violence. At
his arraignment, the court informed him of the charge against him and his standard
range sentence of 63 to 84 months based on his criminal history. The State later
amended the information to include "COUNT 11- ASSAULT IN THE THIRD DEGREE."
Clerk's Papers (CP) at 6. This charge included a domestic violence allegation.
Mr. Halls' trial counsel withdrew five days before trial and the court appointed
new counsel, who requested a continuance. Mr. Halls declined to waive his speedy trial
rights and requested self-representation during the following colloquy:
THE COURT: Do you know what you're doing when
you represent yourself?
MR. HALLS: Partially.
THE COURT: Well, do you think you need the
assistance of counsel to do with correctly?
MR. HALLS: Um, on my point, no, I don't think so. I'd
like to switch from jury trial to have a bench trial and be
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ready for Monday, and I wish to take that upon myself and
do it.
THE COURT: You want to do it a nonjury trial?
MR. HALLS: Yes. I would like to have bench trial on
Monday.
THE COURT: Now I have two things to address
formally on the record. Let me - are you able - how far did
you go in school?
MR. HALLS: Probably about the 9th grade.
THE COURT: Are you able to read and write?
MR. HALLS: Yes.
THE COURT: Do you understand the maximum
sentence that you're exposed to is ten years in prison and a
$20,000 fine on this charge?
MR. HALLS: OK, yes.
THE COURT: Do you understand the Court will not
assist you? You'll be expected to handle all your own legal
affairs without assistance from the Court?
MR. HALLS: Yes.
THE COURT: During the trial?
MR. HALLS: Yes.
THE COURT: Do you think you're capable of doing
that?
MR. HALLS: Yes.
THE COURT: And have you been in court before?
Have you gone to trial before? Have you been through the
process?
MR. HALLS: I have been to trial once[.]
Report of Proceedings (RP) (Apr. 4, 1012) at 8. The court then stressed that based on
Mr. Halls' multiple prior felonies, the State may ask for an exceptional sentence upward
of 120 months. Mr. Halls responded that he understood and still did not want counsel.
The court later asked, "Have you ever had a stay at Eastern State Hospital or
any other mental health facility?" RP (Apr. 4,2012) at 14. Mr. Halls responded,
"Eastern and Western and both competent." Id. Mr. Halls then stated he had never
been put in a mental health institution after a competency evaluation. The court then
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j found Mr. Halls was "competent to make this decision and represent himself and waive
his right to trial -- or to counsel at trial." RP (Apr. 4, 2012) at 15. The court stated, "He's
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had the opportunity to speak with counsel, and he's making that choice I believe freely
and voluntarily and knowingly. And so I'll consider his right to counsel waived." Id.
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Regarding the jury waiver, the following colloquy occurred on the record:
THE COURT: ... Now a jury trial, do you know the
difference between a jury and a nonjury trial?
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MR. HALLS: Urn, my say on it would be I'd have 12
in the box and one outside of it, 13, and then for a bench
trial it would just be the prosecutor, me, and a judge.
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THE COURT: Well, you seem to notice the
difference. Had you talked over that strategy with your
attorney before making the decision?
MR. HALLS: No. I've made that by myself and set
that up.
THE COURT: And do you think you know what
you're doing? You have a reason for that? I don't want to
necessarily know what that is, but do you have a reason for
making that decision?
MR. HALLS: I just don't want to waste no more
court's time on this.
THE COURT: Do you realize you'll have a jury trial
on the 9th, the same day you would have judge trial?
MR. HALLS: That's fine. I realize that.
THE COURT: And you still want to go jury or
nonjury?
MR. HALLS: Nonjury.
THE COURT: I'll find that he's waived his right to a
jury trial freely and voluntarily and knowingly. Appears to
understand what it is, and he's been in the court system a lot, and
I'm sure he does understand.
RP (Apr. 4, 2012) at 15-16. Mr. Halls then signed a waiver to his right to a jury trial.
During the bench trial, a witness at the house on the night in question testified
Ms. Harshman and Mr. Halls were arguing and that Mr. Halls grabbed Ms. Harshman by
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State v. Halls
the throat and threw her on the bed. The witness testified Mr. Halls picked up
"nunchucks" in an attempt to scare her. RP (Apr. 9, 2012) at 49. Mr. Halls next picked
up a candleholder and threw it at Ms. Harshman's head.
Ms. Harshman testified Mr. Halls picked up a candleholder and threw it at her
head, causing a large cut that required medical attention. A picture of Ms. Harshman's
wound was admitted into evidence. The court noted a scar was visible on her forehead.
Mr. Hall denied throwing the candleholder in his defense.
The court found Mr. Halls "picked up a glass candle holder ... and threw it at Ms.
Harshman." CP at 41. The court then found Mr. Halls guilty of second degree assault
- domestic violence. The court stated, "Sir, the State charged you with Assault in the
Second Degree, or basically in [the] alternative, Assault in the Third Degree for the
same acts. I found that the State met its burden on the Assault in the Second Degree,
so you're guilty of that. And Count II will be dismissed because you only get found
guilty of one count." RP (Apr. 9, 2012) at 82.
Mr. Halls accepted counsel for sentencing. Counsel asked for a competency
evaluation. The court granted the motion and stayed proceedings, ordering Eastern
State Hospital (ESH) to conduct a forensic mental health evaluation of Mr. Halls'
competency. ESH found Mr. Halls did not have a mental disease or defect and had the
capacity to understand the proceedings against him and assist counsel. The court
entered a competency order without holding an evidentiary hearing.
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State v. Halls
The court sentenced Mr. Halls to 63 months (the low-end of a standard range
sentence) and ordered community placement "for the longer of: (1) the period of early
release. RCW 9.94A.728(1)(2); or (2) the period imposed by the court [18 months]."
CP at 49. Mr. Halls appealed.
ANALYSIS
A. Evidence Sufficiency
The issue is whether sufficient evidence supports Mr. Halls' conviction for second
degree assault - domestic violence. He contends the State's evidence was insufficient
to prove he intentionally assaulted Ms. Harshman. "In a criminal prosecution, due
process requires the State to prove every element of the charged crime beyond a
reasonable doubt." State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005).
Evidence is sufficient if, when viewed in the light most favorable to the
prosecution, it permits any rational trier of fact to find the essential elements of the crime
beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068
(1992). "A claim of insufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom." Id. Circumstantial and direct
evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99
(1980). Because it is the fact finder's responsibility to resolve credibility issues and
determine the weight of the evidence, we defer to the trier of fact on issues of conflicting
testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.
Camarillo, 115 Wn.2d 60,71,794 P.2d 850 (1990).
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I To prove second degree assault - domestic violence, the State had to prove Mr.
Halls "intentionally" assaulted Ms. Harshman and thereby recklessly inflicted substantial
bodily injury. RCW 9A.36.021 (1)(a); RCW 10.99.020(5). Intent may be inferred from
the defendant's conduct. De/marter, 94 Wn.2d at 638. Intent evidence includes the
manner and act of inflicting the wound, the nature of the prior relationship, and any
previous threats. State v. Mitchell, 65 Wn.2d 373, 374, 397 P.2d 417 (1964).
The record shows Ms. Harshman and Mr. Halls were arguing. Mr. Halls grabbed
her by the throat and then threw her on the bed. He then picked up "nunchucks" to
scare her. RP (Apr. 9, 2012) at 49. Still angry, Mr. Halls grabbed a candleholder and
threw it at Ms. Harshman, causing substantial bodily injury. Pictures and Ms.
Harshman'S physical appearance support the live testimony. While Mr. Halls disputes
this evidence, credibility determinations are for the trier of fact. Camarillo, 115 Wn.2d at
71. Therefore, viewing the evidence in the light most favorable to the State, sufficient
evidence supports Mr. Halls' second degree assault - domestic violence conviction.
B. Waivers
The issue is whether the trial court erred in accepting Mr. Halls' waivers to his
right to a jury trial and his right to the assistance of counsel at trial.
First, Mr. Halls contends the trial court erred by accepting his jury waiver without
proof he had knowingly, intelligently, and voluntarily waived his jury trial right. The
federal and state constitutions guarantee the right to a jury trial. U.S. CONST. amend VI;
CONST. art. I, § 21. The right may be waived, but it must be done so voluntarily,
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knowingly, and intelligently. City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d
957 (1984). The State has the burden to demonstrate that the waiver is valid. State v.
Wicke, 91 Wn.2d 638, 645,591 P.2d 452 (1979). We review the validity of a jury trial
waiver de novo. State v. Ramirez-Dominguez, 140 Wn. App. 233, 239, 165 P.3d 391
(2007). A defendant's waiver of his or her jury trial right must be made knowingly,
intelligently, voluntarily, and without improper influences. State v. Stegall, 124 Wn.2d
719,724-25,881 P.2d 979 (1994). A written jury trial waiver "is strong evidence that the
defendant validly waived the jury trial right." State v. Pierce, 134 Wn. App. 763, 771,
142 P.3d 610 (2006). Additionally, we consider whether the trial court informed the
defendant of his or her jury trial right. Id.
Mr. Halls signed a written waiver of his right to a jury trial attesting he was notified
of his right and chose to waive it. Additionally, the record shows the trial judge
discussed the difference between a jury and nonjury trial with Mr. Halls and notified him
of his right to a jury trial. Mr. Halls stated that he understood and wanted to waive his
right. Under Pierce, this is strong evidence of a valid waiver, and we so conclude.
Second, Mr. Halls contends the trial court erred by accepting his assistance of
counsel waiver without proof he knowingly, intelligently, and voluntarily waived his right.
Specifically, Mr. Halls argues he was not adequately informed of the charges against
him to make a proper waiver of his right to counsel. Like the right to a jury trial, the right
to counsel is guaranteed under both the state and federal constitutions. U.S. CONST.
amends. VI & XIV; WASH. CONST. art. I, § 22. A criminal defendant, however, has the
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right to proceed without counsel when he or she voluntarily and intelligently elects to do
so. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
We review a request for a waiver of the constitutional right to counsel for abuse of
discretion. 1 State v. Madsen, 168 Wn.2d 496,504,229 P.3d 714 (2010). Discretion is
abused if it is exercised without tenable grounds or reasons. State ex rei. Carroll v.
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Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).
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In order to exercise the right to self-representation, a defendant's request must
I be unequivocal, knowing, voluntary; intelligent, and timely. Acrey, 103 Wn.2d at 208
09. Courts should indulge every reasonable presumption against finding that a
defendant has waived the right to counsel. State v. Chavis, 31 Wn. App. 784, 789, 644
P.2d 1202 (1982). Our Supreme Court "strongly recommend[s)" a colloquy between the
trial court and defendant as the best means of assuring that the defendant understands
the risks of self-representation. Acrey, 103 Wn.2d at 211. Such a waiver must be
prefaced on the trial court "informing the defendant of the nature and classification of
the charge, the maximum penalty upon conviction, and that technical rules exist which
1 Federal and other state courts apply a de novo standard of review to a criminal
defendant's waiver of his Sixth Amendment right to assistance of counsel. United
States v. McBride, 362 F.3d 360, 365-66 (6th Cir. 2004) (discussing the trend in the
Sixth Circuit for having two different standards of review for the counsel waiver issue
and noting that the 9th, 10th, and 11th Circuits all apply a de novo standard of review);
State v. Watson, 900 A.2d 702, 712-13 (Me. 2006) (while noting that North Dakota,
Michigan, Iowa, and Colorado apply a de novo standard of review, the court concluded
that Maine courts should apply a bifurcated standard of review for counsel waiver,
reviewing any express or implicit factual findings for clear error, and the legal
conclusions de novo).
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will bind defendant in the presentation of his case." Id.
Mr. Halls argues the trial court abused its discretion when it granted his request
to waive counsel because he was not adequately informed of the charges against him.
Initially, Mr. Halls discusses a potential witness tampering charge. This charge,
however, was never included in the information nor is it part of the judgment and
sentence that is currently on appeal. Thus, his argument is unhelpful in analyzing his
waiver argument.
Mr. Halls next argues the court failed to advise him that he was charged with
second degree assault - domestic violence during the colloquy. Relying on State v.
Buelna, 83 Wn. App. 658, 922 P.2d 1371 (1996), he argues this is an abuse of
discretion. In Buelna, the defendant "at least three times" stated that he "did not
understand the charges." Id. at 660. The court, nevertheless, allowed him to proceed
pro se and was later convicted as charged. Division Two of this court reversed, holding
"Buelna's waiver of his right to the assistance of counsel was an uninformed and
unintelligent waiver, because Buelna said that he did not understand the charges and
because the record does not establish that Buelna was properly advised of the nature
and seriousness of the charges and the possible penalties." Id. at 661.
But here, unlike in Buelna, Mr. Halls was informed of the potential penalty he
faced (up to 10 years' incarceration and a $20,000 fine), and expressed no confusion
about the charges. Although the court did not identify the charge by name during its
colloquy with Mr. Halls, the specific charge was discussed previously on the record at
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Mr. Hall's arraignment hearing. The court may look beyond the colloquy to find
evidence on the record that shows the defendant's awareness of the consequences of
self-representation. Acrey, 103 Wn.2d at 211. Given all, Mr. Halls knowingly,
intelligently, and voluntarily waived his right to counsel. The trial court did not abuse its
discretion in finding likewise.
C. Competency
The issue is whether the trial court erred in not conducting an evidentiary hearing
regarding Mr. Halls' competency. Mr. Halls contends an evidentiary hearing should
have been conducted following the admittance of ESH's report.
Both the due process clause of the United States Constitution and RCW
10.77.050 forbid a criminal trial of an incompetent defendant. Pate v. Robinson, 383
U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); 'In re Pers. Restraint of Fleming,
142 Wn.2d 853, 861, 16 P.3d 610 (2001). In Washington, a defendant is competent if
he is capable of understanding the nature of the proceedings and charges against him
and is capable of assisting in his own defense. RCW 10.77.010(14); State v. Lord, 117
Wn.2d 829, 900, 822 P.2d 177 (1991). When an evidentiary basis exists creating doubt
about the defendant's competency to stand trial, '''then due process requires that the
trial court resolve that doubt.'" State v. Johnston, 84 Wn.2d 572, 576, 527 P.2d 1310
(1974) (quoting State v. Peterson, 90 Wash. 479,482, 156 P. 542 (1916)). RCW
10.77.060(1) requires that a competency hearing be held '''[w]henever ... there is
reason to doubt [the defendant's] competency.'" Lord, 117 Wn.2d at 901 (quoting RCW
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10.77.060)). Because Mr. Halls did not raise an insanity defense, "a hearing is required
only if the court makes a threshold determination that there is reason to doubt the
defendant's competency." Lord, 117 Wn.2d at 901.
No reason is shown to doubt Mr. Halls' competency to require an evidentiary
hearing. ESH professionals found Mr. Halls did not have a mental disease or defect
and had the capacity to understand the proceedings against him. Mr. Halls did not
dispute this finding. Without more, the court properly entered a competency order
without holding an evidentiary hearing. Mr. Halls fails to show a due process violation.
At this juncture, we note Mr. Halls, pro se, challenges the court's competency
determination in his SAG. But, appellate counsel adequately addressed this issue in
the direct appeal. Therefore, further discussion on this issue is unwarranted. See RAP
10.10(a) (providing the purpose of an SAG is to "identify and discuss those matters
which the defendanUappeliant believes have not been adequately addressed by the
brief filed by the defendanUappellant's counsel").
D. Amended Information
Mr. Halls contends the amended information should be remanded for correction
because it did not expressly state that the third degree assault charge was an
alternative charge .
. The purpose of the information is to notify the accused of the offense charged.
State v. Powell, 34 Wn. App. 791, 793, 664 P.2d 1 (1983). An existing information may
be amended to include an alternative means of committing a crime formerly charged.
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I Id. Here, the State amended the information to include third degree assault. While the
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information did not expressly state it was an alternative charge, the record shows the
trial judge expressly informed Mr. Halls, "The State charged you with Assault in the
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Second Degree, or basically in [the] alternative, Assault in the Third Degree for the
same acts. . . . And Count II will be dismissed because you only get found guilty of one
count." RP (April 9, 2012) at 82. This is suffiCient; remand is unnecessary.
Affirmed and remanded for the limited, indicated action.
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.
Brown, A.C.J. .
WE CONCUR:
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Fearin~ l
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