Filed
Washington State
Court of Appeals
Division Two
November 3, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 46229-0-II
Respondent,
v.
BENJAMIN A. PETERS, UNPUBLISHED OPINION
Appellant.
WORSWICK, P.J. — A jury found Benjamin Peters guilty of (1) second degree robbery
and (2) escape from community custody. He appeals his convictions arguing that his trial
counsel rendered ineffective assistance by failing to file a motion to sever the charges. Peters
also raises several issues in his statement of additional grounds (SAG). We affirm.
FACTS
I. ESCAPE FROM COMMUNITY CUSTODY
Following a felony conviction, Peters was under the supervision of the Washington State
Department of Corrections (DOC). On January 6, 2014, Peters went to the DOC office to report
to his primary community corrections officer (CCO), Donovan Russell, who was responsible for
reintegrating Peters back into the community and for making sure Peters followed the conditions
of his release. CCO Russell was out of the office that day, so CCO William Corbett instructed
No. 46229-0-II
him to return the following day.1 Peters filed a monthly report of his whereabouts, but did not
return to the DOC office. Because Peters had not reported, CCO Russell issued a warrant for
Peters on January 10.
II. SECOND DEGREE ROBBERY
On the night of January 11, 70-year-old Ida Malcom was playing a slot machine at
Squaxin Island Tribe’s Little Creek Casino. A man in a leather jacket, cap, and yellow shirt sat
at the machine next to her. Malcom testified that the man stood up and leaned into her with all
his weight. Malcom was unable to push him off of her. The man cashed out Malcom’s machine,
grabbed the ticket and Malcom’s purse, and ran out of the casino.
Squaxin Island Police Officer Tracy Rollins responded to the casino within about two
minutes of receiving a report of the incident. Casino video surveillance captured footage of the
robbery and of the man running from the building and behind the casino. Hoping to recover the
purse, Officer Rollins went behind the casino. There, she found Peters holding a jacket, cap, and
yellow shirt. Officer Rollins testified that it was “pretty chilly” that night. Verbatim Report of
Proceedings (VRP) at 117. Nonetheless, other than the clothes in his hand, Peters wore only
jeans and an undershirt. Peters fled when Officer Rollins told Peters to put his hands in the air.
Officer Rollins pursued Peters and eventually Peters was apprehended and placed under arrest.
Deputy Bradley Trout of the Mason County Sheriff’s Office responded to Officer
Rollins’s request for assistance and took over the investigation. Deputy Trout advised Peters of
1
CCO Russell testified that CCO Corbett had the authority to make decisions on CCO Russell’s
behalf.
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No. 46229-0-II
his Miranda2 rights. Peters stated that he understood his rights and agreed to speak with Deputy
Trout. When asked where the purse could be found, Peters responded, “If I tell you where it is
will you drop all my charges?” VRP at 123. Peters then said, “[I]f I tell you where it’s at then
what’s in it for me?” VRP at 123. Officials never recovered the purse.
III. PROCEDURAL HISTORY
The State’s original information charged Peters with a single count of second degree
robbery.3 At a pretrial management hearing the court reviewed the consolidated omnibus order
and noted “holdback charges” including one count of escape from community custody. 4 VRP at
35. Peters’s counsel commented, “I think the escape from community custody would have to be
charged as a separate case. I don’t think those facts and these overlap.” VRP at 36. The court
urged Peters to make any motion on this issue “expeditiously.” VRP at 36. No motion to sever
was filed.
On the day of trial, the State filed an amended information adding one count of escape
from community custody. Peters’s new trial counsel5 did not object to the filing, did not make a
motion to sever the charges, and entered a not guilty plea.
2
Miranda v. Arizona, 384 U.S. 436, 86. S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
RCW 9A.56.190; RCW 9A.56.210.
4
RCW 72.09.310.
5
Peters’s original court appointed trial counsel withdrew prior to trial citing conflict of interest.
The court then appointed a different attorney to represent Peters throughout the remainder of the
case.
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No. 46229-0-II
At trial, the State sought to call CCO Corbett to testify as to his interaction with Peters on
January 6. Apparently CCO Corbett was not listed as a potential witness for the State during
discovery. Outside the presence of the jury, the parties agreed that calling CCO Corbett as a
witness would not prejudice Peters given the narrow scope of CCO Corbett’s anticipated
testimony and the fact that Peters would have the opportunity to talk to CCO Corbett before he
testified. Prior to calling CCO Corbett to testify, the court conducted an additional panel voir
dire colloquy to ensure none of the jurors had any connection to CCO Corbett. CCO Corbett
testified that on January 6, 2014, he instructed Peters to report to the office the following day
because CCO Russell was out of the office.
The jury found Peters guilty of both charges.
ANALYSIS
Peters argues his trial counsel rendered ineffective assistance by failing to file a motion to
sever the escape from community custody charge from the second degree robbery charge. We
disagree.
To show ineffective assistance of counsel, a defendant must show (1) that defense
counsel’s conduct was deficient and (2) that the deficient performance resulted in prejudice.
State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004); see also Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient
performance, Peters must show that defense counsel’s performance fell below an objective
standard of reasonableness. Reichenbach, 153 Wn.2d at 130. To show prejudice, Peters must
show a reasonable probability that, but for counsel’s purportedly deficient conduct, the outcome
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of the trial would have differed. 153 Wn.2d at 130. If Peters fails to establish either prong of the
ineffective assistance of counsel test, we need not inquire further. State v. Foster, 140 Wn. App.
266, 273, 166 P.3d 726 (2007). Because ineffective assistance of counsel claims present mixed
questions of law and fact, we review them de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204
P.3d 916 (2009).
“The threshold for the deficient performance prong is high, given the deference afforded
to [the] decisions of defense counsel in the course of representation.” State v. Grier, 171 Wn.2d
17, 33, 246 P.3d 1260 (2011). To show deficient performance, the petitioner must show the
absence of any conceivable legitimate tactic supporting counsel’s action. Grier, 171 Wn.2d at
33. If defense counsel’s actions go to the theory of the case, we will not find ineffective
assistance of counsel. 171 Wn.2d at 33.
Here, Peters’s trial counsel made the tactical decision to use the escape from community
custody charge as part of his defense against the second degree robbery charge. “When
counsel’s conduct can be categorized as legitimate trial strategy or tactics, performance is not
deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). Peters argued identity as
his defense theory to the robbery charge. In his closing argument, Peters explained he only ran
from Officer Rollins when she found him behind the casino because Peters knew he had a
warrant out for his arrest, not because he had stolen the woman’s purse. Generally, legitimate
trial strategy cannot serve as the basis for a claim of ineffective assistance of counsel. State v.
Carson, 179 Wn. App. 961, 976, 320 P.3d 185 (2014). Keeping the charges joined was a
legitimate trial tactic employed to mitigate circumstantial evidence from which the jury could
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No. 46229-0-II
infer guilt. Consequently, we hold that trial counsel’s performance did not fall below an
objectively reasonable standard and as such Peters’s claim for ineffective assistance of counsel
fails.
STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Peters raises several additional arguments challenging his conviction. A
SAG must adequately inform the court of the nature and occurrence of alleged errors. State v.
Calvin, 176 Wn. App. 1, 26, 302 P.3d 509 (2013). Issues involving facts outside of the record
are properly raised in a personal restraint petition, rather than a SAG. Calvin, 176 Wn. App. at
26-27. We are “not obligated to search the record in support of claims made in a [SAG].” RAP
10.10(c).
I. IMPROPER AMENDMENT OF INFORMATION
Peters claims the State denied him his right to a fair trial by improperly amending the
information on the day of trial to include the escape from community custody charge. He also
claims the State committed prosecutorial misconduct by amending the information, and that his
trial counsel rendered ineffective assistance by not requesting a trial continuance after the
amended information was filed. We hold that the amended information was proper and Peters’s
claims are meritless.
A. Right to a Fair Trial
Amendment of a charging document is governed by CrR 2.1(d), which provides “[t]he
court may permit any information or bill of particulars to be amended at any time before verdict
or finding if substantial rights of the defendant are not prejudiced.” The defendant bears the
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No. 46229-0-II
burden of demonstrating prejudice. State v. Emery, 161 Wn. App. 172, 201, 253 P.3d 413
(2011). A trial court’s ruling on a proposed amendment to an information is reviewed for abuse
of discretion. State v. Ziegler, 138 Wn App. 804, 808, 158 P.3d 647 (2007).
Peters alleges the amended information prejudiced him by denying him a fair trial. This
broad allegation insufficiently demonstrates prejudice. On the contrary, the record shows that
Peters was given notice at the pretrial management hearing that the escape from community
custody charge would possibly be added to an amended information. Additionally, the State
served a copy of the amended information on Peters and his trial counsel before trial. Peters fails
to assert how the amended information prejudiced him in any way, and given the advanced
notice of the amendment, we reject Peters’s claim.
B. Prosecutorial Misconduct
Peters also claims the State committed prosecutorial misconduct by filing the amended
information. Prosecutorial misconduct is grounds for reversal if the prosecuting attorney’s
conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551
(2011). Absent a timely objection, reversal is required only if the conduct is so flagrant and ill-
intentioned that it causes an enduring and resulting prejudice that could not have been
neutralized by a curative instruction to the jury. State v. Warren, 165 Wn.2d 17, 43, 195 P.3d
940 (2008).
Peters does not say, nor does the record show, how the State’s conduct was flagrant or ill-
intentioned. In fact, the record shows that the State took affirmative steps to give Peters notice
of the amended information. We reject his claim.
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No. 46229-0-II
C. Ineffective Assistance of Counsel
Peters also claims his trial counsel rendered ineffective assistance by failing to request a
continuance following the filing of the amended information. To show ineffective assistance of
counsel, a defendant must show (1) that defense counsel’s conduct was deficient and (2) that the
deficient performance resulted in prejudice. Reichenbach, 153 Wn.2d at 130. Peters has not met
his burden to show that he was prejudiced by the amended information. Nor has he shown
deficient performance as nothing in the record suggests that counsel needed additional time to
investigate with regard to the amended information. As discussed above, the State adequately
gave Peters notice that the escape from community custody charge would be added. We reject
Peters’s claim.
II. SURPRISE WITNESS
A. Right to Due Process
Peters claims the trial court erred by allowing CCO Corbett to testify even though he was
not on the State’s witness list. CrR 4.7(a)(1)(i) requires the prosecuting attorney to disclose to
the defendant, no later than the omnibus hearing, “the names and addresses of persons whom the
prosecuting attorney intends to call as witnesses at the hearing or trial.” CrR 4.7 is designed to
protect both parties from surprise. State v. Coe, 101 Wn.2d 772, 783, 684 P.2d 668 (1984).
Compliance with this requirement is not mandatory and in order to constitute grounds for
reversal, such failure to comply must result in either an abuse of discretion by the trial court or
some substantial injury to the defendant. State v. Jones, 70 Wn.2d 591, 595-96, 424 P.2d 665
(1967). Where the defendant fails to ask for a continuance, there is presumed to be a lack of
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No. 46229-0-II
surprise and prejudice. State v. Schaffer, 63 Wn. App. 761, 767, 822 P.2d 292 (1991). The
State’s late disclosure of CCO Corbett as a witness did not mislead or surprise Peters. Peters did
not object to the late disclosure at trial but, rather, stated his belief that CCO Corbett’s testimony
posed no risk of prejudice. Peters knew the content of CCO Corbett’s testimony. The trial court
did not abuse its discretion in allowing the late disclosure and Peters was not unduly prejudiced
as a result. We reject Peters’s claim.
B. Prosecutorial Misconduct
Peters also claims the late disclosure of CCO Corbett as a witness constituted
prosecutorial misconduct. A defendant alleging prosecutorial misconduct bears the burden of
showing both improper conduct and prejudicial effect. Monday, 171 Wn.2d at 675. As
discussed more fully above, the late disclosure of CCO Corbett as a witness did not prejudice
Peters. Thus, Peters fails to meet his burden in establishing prosecutorial misconduct and we
reject his claim.
C. Ineffective Assistance of Counsel
Likewise, Peters’s claim that trial counsel rendered ineffective assistance by not opposing
CCO Corbett being called as a witness or requesting a continuance fails for lack of prejudice. In
order to establish actual prejudice here, Peters must show that the trial court likely would have
granted a motion to suppress CCO Corbett’s testimony. See State v. Higgs, 177 Wn. App. 414,
425, 311 P.3d 1266 (2013), review denied, 179 Wn.2d 1024 (2014). Here, Peters fails to show
that CCO Corbett’s testimony was inadmissible. As previously noted, the trial court has
discretion to permit the State to endorse the name of an additional witness during trial, where no
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No. 46229-0-II
undue prejudice will result to the defendant. Jones, 70 Wn.2d at 595-96. The record reflects
neither that counsel needed additional time to prepare for CCO Corbett’s testimony, nor that
CCO Corbett’s testimony represented any kind of unfair surprise. In fact, during argument
outside the presence of the jury the State and defense counsel agreed that because CCO Corbett
would only be testifying to the fact that on January 6 he told Peters to report the following day,
and because defense counsel would have sufficient opportunity to talk to CCO Corbett prior to
him taking the stand, there would be no prejudice to Peters. We reject Peters’s claim.
III. WITNESS IN COURTROOM
A. Right to a Fair Trial
Peters claims the trial court denied his right to a fair trial when it allowed Deputy Trout in
the courtroom during Officer Rollins’s testimony before Deputy Trout testified. Deputy Trout’s
arrival or presence in the courtroom other than during his testimony does not appear in the
record. Issues involving facts outside of the record are properly raised in a personal restraint
petition, rather than a SAG. Calvin, 176 Wn. App. at 26. Because this claim involves facts
outside of the record we do not consider it.
B. Ineffective Assistance of Counsel
Peters also claims trial counsel rendered ineffective assistance by not objecting to Deputy
Trout’s presence in the courtroom. “When an ineffective assistance claim is raised on appeal,
the reviewing court may consider only facts within the record.” Grier, 171 Wn.2d at 29. Under
Grier, therefore, we have no basis for evaluating the ineffective assistance of counsel claim, and
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No. 46229-0-II
because the alleged flaw is not apparent in the record, we do not consider it. 171 Wn.2d at 29;
see also RAP 2.5.
IV. FAILURE TO REQUEST A KNAPSTAD6 MOTION
Peters also claims trial counsel rendered ineffective assistance of counsel by failing to file
a Knapstad motion.7,8 Peters cannot prove that counsel’s failure to file a Knapstad motion
prejudiced him.
To prevail on a Knapstad motion, the defendant must show that there are no material
facts in dispute and that the undisputed facts do not establish a prima facie case of guilt for the
crimes charged. 107 Wn.2d at 356. A trial court may dismiss a criminal charge under Knapstad
if the State’s pleadings and evidence fail to establish prima facie proof of all elements of the
charged crime. State v. Sullivan, 143 Wn.2d 162, 171 n. 32, 19 P.3d 1012 (2001).
Here, the State presented sufficient evidence to support Peters’s convictions of second
degree robbery and escape from community custody. Thus, a Knapstad motion would not likely
have been granted, and therefore Peters’s ineffective assistance claim fails on this ground as
well.
6
State v. Knapstad, 107 Wn.2d 346, 351-53, 729 P.2d 48 (1986) (trial court has inherent power
to dismiss a case not supported by sufficient evidence).
7
Peters’s claims “[m]y attorney was deficient, because there was no strategic reason why council
[sic] did not file a[n] evidentiary hearing and/or Knapstad motion for lack of evidence against
me.” SAG at 5.
8
The procedure to be followed for Knapstad motions is delineated by CrR 8.3(c).
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No. 46229-0-II
We affirm.
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.
Worswick, P.J.
We concur:
Melnick, J.
Sutton, J.
12