FILED
U
i OF APPEALS
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ZQRR SEP 23 33
DIVISION II
STATE OF WASHINGTON, No. 45077 -1 - II
Respondent,
v.
TROY RICHARD AKIN, UNPUBLISHED OPINION
Appellant.
MELNICK, J. Troy Akin appeals his conviction for bail jumping. He argues ( 1) the trial
court violated his constitutional trial rights to participate in his defense; ( 2) the trial court
violated his constitutional right to confront adverse witnesses; ( 3) he received ineffective
assistance of counsel because his attorney had an actual conflict; and ( 4) he was denied due
process because the jury instructions were contradictory. We hold the trial court did not deny
Akin his constitutional trial rights, Akin received effective assistance of counsel, and the jury
instructions were not contradictory. We affirm Akin' s bail jumping conviction.
FACTS
The State charged Akin with second degree theft. At a pretrial hearing on March 4, 2013,
the trial court ordered Akin to return to court on April 4 for a readiness hearing. Akin failed to
appear at the April 4 hearing and a warrant for his arrest issued. RP at 36. The State then
amended the original charging document and added the bail jumping charge. Subsequently the
State dismissed the theft charge and proceeded to trial solely on the bail jumping.
45077 -1 - II
At the beginning of trial, the trial judge stated to Akin, " Mr. Akin, I just want to advise
you not to have any contact with any of the jurors and when there is testimony or during the voir
dire, you are not to show any reaction, responses, or agreement or disagreement with anything."
Report of Proceedings ( RP) at 3.
During trial, the State called one witness, Angela Benneman, the deputy court clerk who
was present at the March 4 and April 4 hearings. She is also a custodian of records for the trial
court. Benneman testified that at the March 4 hearing, the court ordered Akin to appear in court
on April 4 and that he failed to appear on that date. The State also played the video recordings
from the March 4 and April 4 hearings. During the April 4 hearing, Akin' s attorney stated, " I
represent [ Akin], but I can' t represent his whereabouts." RP at 36.
Akin testified in his defense and admitted that the trial court ordered him to appear in
court on April 4, that he knew he had to appear, and that he did not appear. Akin testified that he
failed to appear because of a calendaring issue.
After the trial court read the jury instructions, the State advised the court that, when the
jurors were exiting the court room to deliberate, Akin became " a little vocal as well as
demonstrative of his opinion of this entire affair." RP at 83. The trial judge again instructed
Akin,
Mr. Akin, you may not be in agreement with what has gone on or how it has gone
on. I —but I have to direct you again that you' re not to be vocal, you' re not to be
demonstrative in your nature, especially when a verdict does get returned. I — m
I'
going to tell you, again, you need to sit there quietly and listen and nothing more.
RP at 84.
The jury found Akin guilty of bail jumping and the trial court sentenced Akin to three
months. Akin appeals.
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ANALYSIS
I. TRIAL COURT DID NOT VIOLATE AKIN' S CONSTITUTIONAL TRIAL RIGHTS
Akin argues the trial court prohibited him from participating in his defense in violation of
his constitutional rights to be present, to due process, to confront adverse witnesses, and to
appear and defend in person." Appellant' s Br. at 4. Because Akin could and did participate in
his trial, we hold the trial did not violate Akin' s constitutional trial rights.
A defendant has a constitutional right to be present at all critical stages of the trial
proceedings. State v. Irby, 170 Wn.2d 874, 880, 246 P. 3d 796 ( 2011). But the right to be
present is not absolute. State v. Chapple, 145 Wn. 2d 310, 318, 36. P. 3d 1025 ( 2001). "[ A]
defendant' s persistent, disruptive conduct can constitute a voluntary waiver of this right."
Chapple, 145 Wn.2d at 318. Trial judges have wide discretion to manage their courtrooms and
conduct trials " fairly, expeditiously, and impartially." Sanders v. State, 169 Wn.2d 827, 851,
240 P. 3d 120 ( 2010) ( quoting State v. Johnson, 77 Wn.2d 423, 426, 462 P. 2d 933 ( 1969)). " A
trial court must have authority to manage the parties and proceedings before it." State v.
Gassman, 175 Wn.2d 208, 209, 283 P. 3d 1113 ( 2012). We review de novo whether the
defendant' s right to participate in his defense has been violated. Irby, 170 Wn.2d at 880.
Here, Akin argues the trial judge violated his above -enumerated trial rights by telling him
before trial to keep his comments and reactions to himself. But the trial judge' s comments did
not prohibit Akin from participating in his defense or speaking with his attorney; the trial judge
merely exercised his authority to manage the parties and the proceedings. The record
demonstrates that, but for the April 4 hearing, Akin was present during all critical stages of the
trial and did testify on his own behalf. We hold the trial court did not violate Akin' s
constitutional trial rights.
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II. TRIAL COURT DID NOT VIOLATE AKIN' S RIGHT To CONFRONT ADVERSE WITNESSES
Akin argues the trial court violated his right to confront adverse witnesses by admitting a
video -recorded hearing that included a testimonial statement by his defense attorney. Akin raises
this issue for the first time on appeal. We need not address this argument because if there was
error, it did not prejudice Akin.
We will not review an argument raised for the first time on appeal unless the challenging
party demonstrates a manifest constitutional error. RAP 2. 5( a)( 3). To satisfy RAP 2. 5( a)( 3), an
appellant first must identify a constitutional error and then demonstrate how the alleged error
affected his rights at trial. State v. O' Hara, 167 Wn.2d 91, 98, 217 P. 3d 756 ( 2009). An error is
manifest if it is so obvious on the record that the error requires appellate review. O' Hara, 167
Wn.2d at 99 -100. The defendant must show actual prejudice, meaning the alleged error had
practical and identifiable consequences at trial. State v. Gordon, 172 Wn.2d 671, 676, 260 P. 3d
884 ( 2011).
The right to confront opposing witnesses is guaranteed by the Sixth Amendment of the
United States Constitution and article 1, section 22 of the Washington State Constitution. This
right "' applies to witnesses against the accused — in other words, those who bear testimony... .
Testimony, in turn, is typically [ a] solemn declaration or affirmation made for the purpose of
establishing or proving some fact. "' State v. Jasper, 174 Wn.2d 96, 109, 271 P. 3d 876 ( 2012)
quoting Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 ( 2004))
alterations in original). Generally, testimonial statements may not be introduced against the
defendant at trial unless the proponent of the evidence shows that the declarant witness is
unavailable and the defendant had a prior opportunity to cross -examine the declarant witness.
Jasper, 174 Wn.2d at 109 ( citing Crawford, 541 U. S. at 68).
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45077 -1 - II
In this case, during the State' s presentation of evidence, the State played two video
recordings, one from the March 4 hearing where the court ordered Akin to return to court on
April 4 and the other from the April 4 hearing where Akin failed to appear. During the latter
hearing, Akin' s attorney —the same attorney who represented him at trial— stated that he
represents Akin but " can' t represent his whereabouts." RP at 36. Akin argues his attorney' s
statement violated his right to confront an adverse witness because his attorney could not take
the stand to be cross -examined about his statement.
The record does not support that this alleged error affected Akin' s rights at trial or that he
suffered prejudice. The video -recorded statement from Akin' s counsel at issue was not crucial in
the State' s case. Instead, the State relied on the testimony from Benneman, a deputy court clerk,
who was present at the March 4 and April 4 hearings. Benneman, who is also a custodian of
records for the trial court, relied on her recorded minutes and the videos from the hearings for her
testimony that Akin was ordered to appear in court on April 4, that Akin failed to appear on
April 4, that the trial was struck, and that a bench warrant was issued. Akin also testified, and
admitted that the trial court ordered him to appear in court on April 4, that he knew he had to
appear in court on April 4, and that he did not appear in court on April 4 because of a
calendaring issue. Further, the State never commented on Akin' s counsel' s statement during the
trial and did not discuss it during closing arguments. Instead, the State focused on the testimony
from Benneman and Akin. Akin' s counsel' s statement was merely cumulative of other
significant untainted evidence. Accordingly, Akin cannot show actual prejudice and we do not
review this argument.
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III. AKIN WAS NOT DENIED EFFECTIVE ASSISTANCE OF COUNSEL
Akin argues he was denied effective assistance of counsel because his attorney had an
actual conflict of interest. We disagree and hold that Akin was not denied effective assistance of
counsel
A. STANDARD OF REVIEW
To prove ineffective assistance of counsel, Mayer must overcome the presumption that
his counsel was effective. In re Pers. Restraint of Gomez, 180 Wn.2d 337, 348, 325 P. 3d 142
2014). To do this, Akin must show that counsel' s performance was so deficient that it " fell
below an objective standard of reasonableness" and that the deficient performance prejudiced
him. State v. Thomas, 109 Wn.2d 222, 226, 743 P. 2d 816 ( 1987) ( quoting Strickland v.
Washington, 466 U. S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984)). Thus, Akin must
first prove that his counsel' s " acts or omissions were outside the wide range of professionally
competent assistance." Strickland, 466 U. S. at 690. Performance is not deficient if counsel' s
conduct can be characterized as a legitimate trial strategy. State v. Kyllo, 166 Wn.2d 856, 863,
215 P. 3d 177 ( 2009). To establish prejudice, the defendant must show a reasonable probability
that the deficient performance affected the outcome of the trial. Thomas, 109 Wn.2d at 226. " A
reasonable probability is a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U. S. at 694. We review ineffective assistance of counsel claims de novo. State
v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009).
B. CONFLICTS OF INTEREST
Defense counsel has a duty of loyalty to the defendant, and thus the right to effective
assistance of counsel includes the right to free
conflict - counsel." Gomez, 180. Wn.2d at 348
citing Strickland, 466 U. S. at 692). But a conflict of interest is not a per se violation of the
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defendant' s right to effective assistance of counsel. Gomez, 180 Wn.2d at 348. To substantiate
his argument, Akin must show ( a) an actual conflict of interest and ( b) that the " actual conflict of
interest adversely affected" his counsel' s performance. Gomez, 180 Wn.2d at 348 -49 ( quoting
Cuyler v. Sullivan, 446 U. S. 335, 350, 100 S. Ct. 1708, 64 L. Ed. 2d 333 ( 1980)). " Possible or
theoretical conflicts of interest are ` insufficient to impugn a criminal conviction. "' Gomez, 180
Wn.2d at 349 ( quoting Cuyler, 446 U.S. at 350). If Akin shows an actual conflict of interest .
existed and that it adversely affected his counsel' s performance, then the court presumes
prejudice. See Gomez, 325 P. 3d at 148. Therefore, we first consider whether an actual conflict
of interest existed. We conclude no actual conflict of interest existed.
An actual conflict of interest " is evidenced ` if, during the course of the representation, the
defendants' interests diverge with respect to a material factual or legal issue or to a course of
action.'" State v. Dhaliwal, 113 Wn. App. 226, 237, 53 P. 3d` 65 ( 2002) ( quoting State v.
Robinson, 79 Wn. App. 386, 394, 902 P. 2d 652 ( 1995) ( internal quotation marks omitted)). The
actual conflict must be readily apparent. Dhaliwal, 113 Wn. App. at 237.
Relying on State v. Regan, 143 Wn. App. 419, 177 P. 3d 783 ( 2008), Akin argues his
counsel' s video- recorded statement that he did not know Akin' s whereabouts on April 4 created
an actual conflict of interest. We disagree. Regan is distinguishable from the present case. In
Regan, the trial court compelled the defendant' s attorney to testify which, the court on appeal
held, created an actual conflict of interest. 143 Wn. App. at 430. Here, the trial court did not
compel Akin' s counsel to testify. In fact, Akin' s counsel did not testify. The only statements
Akin' s counsel made were at the April 4 hearing. Akin testified consistent with his lawyer' s
statement. He told the jury he did not appear in court because of a calendaring issue. Akin
therefore conceded he knew he had to attend the April 4 readiness hearing but did not. Akin and
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his counsel' s interest did not diverge regarding a material factual or legal issue. Akin cannot
show any actual conflict of interest existed with his attorney.' Thus, we hold Akin was not
denied the effective assistance of counsel.
IV. THE JURY INSTRUCTIONS WERE NOT CONTRADICTORY
Akin argues the trial court denied him due process because the definitional and " to
convict" bail jumping jury instructions were contradictory. Appellant' s Br. at 12. We disagree
and hold that the jury instructions were complementary, not contradictory.
We review jury instructions de novo for errors of law. Anfinson v. FedEx Ground
Package Sys., Inc., 174 Wn.2d 851, 860, 281 P. 3d 289 ( 2012). "' Parties are entitled to
instructions that, when taken as a whole, properly instruct the jury on the applicable law, are not
misleading, and allow each party the opportunity to argue their theory of the case. "' State v.
Ridgley, 141 Wn. App. 771, 779, 174 P. 3d 105 ( 2007) ( quoting State v. Redmond, 150 Wn.2d
489, 493, 78 P. 3d 1001 ( 2003)). It is prejudicial error to give irreconcilable instructions upon a
material issue in the case. Hall v. Corp. of Catholic Archbishop of Seattle, 80 Wn.2d 797, 804,
498 P. 2d 844 ( 1972); Smith v. Rodene, 69 Wn.2d 482, 486, 418 P. 2d 741, 423 P. 2d 934 ( 1966).
Where instructions are inconsistent or contradictory on a given material point, their use is
prejudicial because it is impossible to know what effect they may have on the verdict. Hall, 80
Wn.2d at 804. An instruction essentially in the words of a statute, however, is a proper
instruction. State v. Levage, 23 Wn. App. 33, 35, 594 P. 2d 949 ( 1979).
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We also note that the State did notrely on Akin' s counsel' s statement. The State did not
comment on the statement during trial. It did not argue the statement to the jury. Instead, the
State relied on the deputy court clerk' s testimony that on March 4, Akin was ordered to return to
court on April 4 for a readiness hearing and Akin failed to appear on April 4. Because the State
did not use Akin' s counsel' s statement as evidence of bail jumping, no actual conflict of interest
existed.
45077 -1 - II
Akin argues that the " to convict" instruction required the jury to have proof that Akin had
been charged with second degree theft, but that the definitional instruction did not include this
essential element. Akin contends this seeming discrepancy created prejudicial error because it is
impossible to speculate which instruction the jury relied on when it convicted him.
The definitional instruction provides the jury with a definition of the crime. The " to
convict" instruction in this case contains all of the elements of the crime as required by law.
State v. Fisher, 165 Wn.2d 727, 753, 202 P. 3d 937 ( 2009). It also contained instructions for the
jury to return a verdict. In this case the trial court properly instructed the jury in both
instructions.
We conclude that the definitional and " to convict" instructions are complementary, not
contradictory. Akin has failed to show how the jury instructions are misleading or how the jury
could have found him guilty of bail jumping without finding that he was charged with second
degree theft. We hold the jury instructions were not contradictory.
We affirm Akin' s bail jumping conviction.
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 in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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