Opinion
No. 52074-1-I.
Filed: June 14, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 02-1-02453-4. Judgment or order under review. Date filed: 02/27/2003. Judge signing: Hon. Ronald X Castleberry.
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Percy Levy (Appearing Pro Se), 9404 Holly Dr, Everett, WA 98204.
Counsel for Respondent(s), Constance Mary Crawley, Attorney at Law, Snohomish Co Courthouse, 3000 Rockefeller Ave, Everett, WA 98201-4060.
In this appeal, Percy Levy challenges several of the court's instructions to the jury, contending that they amounted to unconstitutional comments on the evidence. The challenged instructions contained "to wit" language similar to that condemned as constituting a comment on the evidence in State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). But under the unique circumstances presented by this case, the instructions either did not amount to a comment on the evidence, or the improper instructions were harmless beyond a reasonable doubt. Levy's pro se challenges are without merit. We therefore affirm.
FACTS
October 24, 2002, a home invasion robbery took place in an apartment described as a "drug house." Present in the apartment were its renter, Kenya White, as well as Jerry Mitchell, Mike Montemayor, and Brianna Thorne. Levy arrived at the apartment in a Chevy Suburban driven by John Cox. The two men were accompanied by Denice Bowers and Breena Martin.
Martin entered the apartment first. Bowers joined her in the apartment after a few minutes. According to Bowers, when she went into the apartment, Martin took her into the bathroom, handed her a gun, and told her to take it out to the truck. Bowers went back to the truck, tossed the gun to Levy, and asked him to come with her inside the apartment. White allowed Bowers back in, but tried to keep Levy out.
Levy forced his way into the apartment. According to White and Mitchell, Levy had a gun in his hand at this time and according to Mitchell, the gun was cocked. Levy brought White, Mitchell, and Thorne into the bedroom, which was occupied by Montemayor. Levy asked them to give him their money, drugs, and jewelry. When Thorne refused to give up her jewelry, Levy struck her in the face. Thorne then gave up her jewelry, cash, and cell phone. According to Montemayor, Levy picked up a crowbar and threatened him with it, still holding the gun in his other hand Montemayor lifted up the mattress to protect himself, revealing $650 hidden underneath. Levy took the money, along with other cash, jewelry, and cell phones. Montemayor saw Levy, Bowers, and Martin drive away in the Suburban. At some point, White called 911. Later that morning, Levy was arrested near a Suburban matching the description provided by Montemayor. Officers found a loaded .38 handgun and a tire iron inside the Suburban. They found cash and jewelry on Levy. The State charged Percy Levy with unlawful possession of a firearm in the second degree, first degree burglary with a deadly weapon allegation, and three counts of first degree robbery with deadly weapon allegations.
Bowers testified against Levy at trial in exchange for her charges being reduced to a misdemeanor. White, Montemayor, Thorne, and Mitchell also testified for the State. The defense had wanted to call Martin as a witness, but her attorney represented to the court that she would assert her Fifth Amendment right not to testify. Cox, the driver of the Suburban, did not testify, nor did Levy testify on his own behalf. The defense argued that the State's witnesses were all drug addicts who could not be believed, and pointed to various inconsistencies in the witnesses' testimony.
Neither party took exception to any of the court's instructions to the jury. Instruction number 10 provided:
To convict the defendant of the crime of burglary in the first degree, as charged in Count I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 24th day of October, 2002, the defendant, or an accomplice, entered or remained unlawfully in a building: to-wit: the building of Kenya White, located at 711 W. Casino Rd., Everett, WA;
(2) That the entering or remaining was with intent to commit a crime against a person or property therein;
(3) That in so entering or while in the dwelling or in immediate flight from the dwelling the defendant or an accomplice in the crime charged was armed with a deadly weapon, to-wit: a .38 revolver or a crowbar; and
(4) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
(Emphasis added). Instruction 15 provided:
To convict the defendant of the crime of robbery in the first degree, as charged in Count II, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 24th day of October, 2002, the defendant, or an accomplice, unlawfully took personal property to wit: jewelry, from the person or in the presence of another, to-wit: Michael Montemayor;
(2) That the defendant intended to commit theft of the property;
(3) That the taking was against Michael Montemayor's will by the defendant's, or an accomplice's, use or threatened use of immediate force, violence or fear of injury to Michael Montemayor;
(4) That the force or fear was used by the defendant, or an accomplice, to obtain or retain possession of the property;
(5) That in the commission of these acts the defendant or an accomplice was armed with a deadly weapon, to wit: a .38 revolver or a crowbar; and
(6) That the acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.
(Emphasis added). Instructions 16 and 17 were identical to Instruction 15, except they referred to Counts III and IV, and instead of "Michael Montemayor," they named as alleged victims "Brianna Thorne aka April Ames" and "Kenya White" respectively. Instruction 20 provided:
In regard to Counts I, II, III, and IV, it is alleged that the defendant, or an accomplice, possessed one or more deadly weapons, to wit: a .38 revolver or a crowbar. To convict the defendant in Counts I, II, III, and IV, the State must prove beyond a reasonable doubt that the defendant possessed one or more deadly weapons. Further, you must unanimously agree as to which deadly weapon or deadly weapons, (a .38 revolver or a crowbar), he possessed.
The jury was separately, properly instructed on the definitions of building, deadly weapon, and firearm.
The jury found Levy not guilty on Count IV, relating to the alleged robbery of Kenya White, but guilty on the remaining counts. By way of special verdict forms on the robberies and the burglary, the jury found that Levy was armed with a deadly weapon at the time of the offenses. On each count in question, the jury found that Levy was not armed with a crowbar, but was armed with a firearm.
DISCUSSION
In this appeal, Levy challenges the use of "to wit" language in the court's instructions to the jury. He raises specific challenges to instructions 10, 15, 16, and 20. Although Levy did not take exception to any of the court's instructions below, error that is "manifest" and affects a constitutional right may be raised for the first time on appeal. Becker, 132 Wn.2d at 64; RAP 2.5(a)(3).
A similar issue was raised in State v. Holt, 56 Wn. App. 99, 783 P.2d 87 (1989), wherein the defendant raised a challenge to a "to convict" instruction that contained the following language:
That on or about the 5th day of September, 1985, the defendant or an accomplice sold, exhibited, or displayed lewd matter, to-wit: [title of allegedly obscene material].
Holt, 56 Wn. App. at 104. The court held that the "to convict" instruction "could have been read as a direction, or as a comment by the court, that the material was in fact lewd." Holt, 56 Wn. App. at 105. But the court concluded that the error was harmless under the test set forth in State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985):
A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Constitutional error is presumed to be prejudicial and the State bears the burden of proving that the error was harmless.
Holt, 56 Wn. App. at 105, quoting Guloy, 104 Wn.2d at 425. The error was deemed harmless because the jury was properly instructed on the definition of "lewd material" in a separate instruction, and a jury inquiry demonstrated that the jury had thoroughly analyzed the issue.
In State v. Becker, our supreme court also examined the use of the term "to wit" in a jury instruction. The defendants in Becker were charged with selling drugs within 1,000 feet of a school. One of the key issues at trial was whether the Youth Employment Education Program (YEP) was a school within the meaning of the statute. The special verdict forms provided to the jury asked:
[Were] defendant[s], [Donald Becker and Nelson Gantt], within 1,000 feet of the perimeter of school grounds, to wit: Youth Employment Education Program School at the time of the commission of the crime?
Becker, 132 Wn.2d at 64. The court held that this instruction effectively removed the issue of whether YEP was a school for the jury's consideration, and amounted to an unconstitutional comment on the evidence in violation of Article IV, sec. 16 of the Washington State Constitution. Becker, 132 Wn.2d at 64-65.
In State v. Akers, 88 Wn. App. 891, 946 P.2d 1222 (1997), affirmed, 136 Wn.2d 641 (1998), this court considered a verdict form that was similar, but not identical, to the form in Becker. The difference between the two was that the form in Becker referred to the YEP as the "Youth Employment Education Program School," while the form in Akers simply referred to it as the "Youth Employment Education Program." Becker, 132 Wn.2d at 64; Akers, 88 Wn. App. at 895. (Emphasis added.) We reversed the defendant's conviction on other grounds, but concluded that the "to wit" instruction was not an improper comment on the evidence.
While our supreme court affirmed the reversal of the defendant's conviction in Akers, it was critical of this court's analysis of the "to wit" issue: While we therefore need not decide whether the special verdict form constitutes an improper comment on the evidence, we note that we find unpersuasive the Court of Appeals' attempt to distinguish this form from the one we found improper in Becker. State v. Akers, 136 Wn.2d 641, 644, 965 P.2d 1078 (1998). This portion of the opinion is clearly dicta, but tends to demonstrate how broadly the supreme court intended Becker to be read.
In State v. Jones, 106 Wn. App. 40, 21 P.3d 1172 (2001), this court considered a jury instruction that used "to wit" language in instructing the jury that in order to convict the defendant of second degree unlawful possession of a firearm, it must find that the defendant "owned or had a firearm in his possession or under his control, to wit: a Dakota .45 caliber revolver." Jones, 106 Wn. App. at 42. Although it did not reach the "to wit" issue, the panel noted that "our courts have condemned similar instructions. Counsel would be well advised to avoid the use of 'to wit' language in future 'to convict' instructions." Jones, 106 Wn. App. at 45. As stated in Jones, Washington courts have repeatedly condemned the use of "to wit" language in jury instructions. Any use of the "to wit" language runs the risk of constituting an improper comment on the evidence. But while such language should be avoided in jury instructions, we cannot conclude that use of "to wit" language amounts to an impermissible comment on the evidence in every instance.
Article 4, section 16 of the Washington Constitution provides: "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." The section is intended "to prevent the jury from being influenced by knowledge conveyed to it by the trial judge as to his opinion of the evidence submitted," and it "forbids only those words or actions which have the effect of conveying to the jury a personal opinion of the trial judge regarding the credibility, weight or sufficiency of some evidence introduced at the trial." State v. Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 (1970) (citations omitted). An impermissible comment conveys to the jury a judge's personal attitudes toward the merits of a case or permits the jury to infer from what the judge said or did not say that he or she believed or disbelieved the testimony in question. Hamilton v. Dep't of Labor Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988).
In this case, some of the challenged uses of "to wit" language did not amount to a comment on the evidence. For example, Levy challenges subsection (1) of Instructions 15 and 16. Both instructions stated that the State was required to prove that Levy or an accomplice unlawfully took "personal property, to-wit: jewelry." This did not convey to the jury the judge's personal opinion as to whether he believed that jewelry was personal property, particularly given that no reasonable juror could conclude that jewelry was not personal property.
Levy also argues that these instructions were improper because they provided that the State was required to prove that the personal property was taken "from the person or in the presence of another, to-wit: [name of alleged victim]." Contrary to Levy's arguments, this instruction did not remove from the jury's consideration whether the property was taken from the victims' person or in his or her presence. The use of the word "another" here was in and of itself superfluous, in that the instruction simply told the jury that the named victim was "another": that is, someone other than Levy. This does not impermissibly convey the judge's opinion as to what he personally believed, because it would be nonsensical to contend that the victim was not "another."
Other instructions challenged by Levy arguably did amount to improper comments on the evidence. But in the context of this case, the allegedly erroneous instructions were harmless beyond a reasonable doubt.
Not all instructional errors require automatic reversal. Indeed, even an instruction that omits an element of the offense is subject to harmless error analysis:
"[A]n instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence."
Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In such a case, "the error is harmless if that element is supported by uncontroverted evidence." State v. Brown, 147 Wn.2d 330, 341, 58 P.3d 889 (2002), (citing Neder, 527 U.S. at 18).
In the context of a constitutional error in a jury instruction, reversal is required unless we are satisfied "beyond a reasonable doubt that the jury verdict would have been the same absent the error." Brown, 147 Wn.2d at 341, (quoting Neder, 527 U.S. at 19). In conducting a harmless error analysis, we must review the record "for any evidence that could lead to a rational contrary finding regarding the misstated or omitted element." State v. Jennings, 111 Wn. App. 54, 64, 44 P.3d 1 (2002), (citing Neder, 527 U.S. at 19), review denied, 148 Wn.2d 1001 (2003).
To convict Levy of burglary as charged in Count I, the State was required to prove beyond a reasonable doubt that Levy entered or remained unlawfully in a "building." Levy argues that the use of the "to wit" language in subsection (1) of Instruction 10 effectively removed this element from the jury's consideration. We agree with Levy that the fact that "building" was defined elsewhere in the instructions does not resolve this issue. This argument was rejected by the Court in Becker. ("Nor did the other instructions cure the defect inherent in the special verdict form." Becker, 132 Wn.2d at 65).
We nonetheless conclude that, even assuming that this use of "to wit" language constituted an improper comment on the evidence, the error was harmless under the facts of this case. The uncontroverted evidence at trial supported the conclusion that the events took place in the apartment of Kenya White. There was no evidence in the record that could have led a rational jury to determine that the events in question had not taken place in a building. We are satisfied beyond a reasonable doubt that the jury's result would have been the same absent the arguably flawed instruction. Levy similarly argues that the "to wit" language in subsection (1) of Instruction 10 removed from the jury's consideration the issue of whether the events took place in the State of Washington. Here again, we are satisfied beyond a reasonable doubt that the error, if any, was harmless. Subsection (4) of the same instruction told the jury that this was an element that the State was required to prove. And the uncontroverted evidence at trial established that the events of the evening (including Levy's subsequent arrest) took place in Washington State.
Levy also raises a challenge to the "to wit" language in subsection (3) of Instruction 10, and subsection (5) of Instructions 15 and 16. All thee instructions provided that the State was required to prove that at the time of the offenses, Levy or an accomplice "was armed with a deadly weapon, to-wit: a .38 revolver or a crowbar." Similarly, Instruction 20 instructed the jury that they "must agree as to which deadly weapon or deadly weapons, (a .38 revolver or a crowbar), he possessed."
Under Becker, these instructions did constitute an improper comment on the evidence. But under the unique circumstances presented by this case, we nonetheless conclude that the instructional error was harmless beyond a reasonable doubt.
In this case, the jury was required to determine whether Levy was armed with a deadly weapon both to determine whether the State had proven that Levy was guilty of the underlying crimes of robbery and burglary, and to determine whether the State had proven the deadly weapon allegations. As to the latter, in special verdict forms, the jury answered "no" to the question of whether Levy was armed with a crowbar. Thus, even if the jury was improperly instructed as to whether a crowbar is a deadly weapon, the error was harmless beyond a reasonable doubt because the jury found that the State had not proven that Levy was armed with a crowbar.
In the special verdict forms, the jury answered "yes" to the question of whether Levy was armed with a deadly weapon, and further answered "yes" to the question of whether the deadly weapon was a firearm. But this does not necessarily resolve the question of whether we can be satisfied beyond a reasonable doubt that the jury would have reached this conclusion absent the improper instructions. But here again, the circumstances of this case convince us that this error was also harmless beyond a reasonable doubt. First, the uncontroverted evidence below established that the .38 revolver was an operable firearm. Joseph Neussendorfer of the Everett Police Department testified that he test fired the revolver, and that when he loaded the gun and pulled the trigger, "it sent the bullet or projectile downrange from the gun."
Additionally, we note that Levy was also charged, in Count V, with unlawful possession of a firearm. The jury found Levy guilty of this count, and Levy raises no challenge to the instructions on this count. The jury was instructed that to find Levy guilty on Count V, they must find that the State had proven beyond a reasonable doubt that Levy had a firearm in his possession. The jury was also properly instructed as to the definition of a firearm. Because the jury found Levy guilty on Count V, they necessarily found that the State had proven beyond a reasonable doubt that Levy had a firearm in his possession. Based on the testimony at trial, the only item that a reasonable jury could have found to be a firearm was the.38 revolver. And a firearm is a deadly weapon per se. See, e.g., State v. Sullivan, 47 Wn. App. 81, 85, 733 P.2d 598 (1987).
In sum, the uncontroverted evidence below established that the .38 revolver was a firearm. And based on its verdict on Count V (to which Levy raises no claim of error), the jury necessarily found that the .38 revolver was a firearm. A firearm is a deadly weapon as a matter of law. We are therefore convinced that the jury would have reached the same verdict absent the improper instruction. The error is harmless beyond a reasonable doubt.
Although we find the erroneous jury instructions harmless under the unique circumstances of this case, we take this opportunity to reiterate that this use of "to wit" language in jury instructions will often amount to an improper comment on the evidence in violation of Article IV, sec. 16 of the Washington State Constitution. "Counsel would be well advised to avoid the use of 'to wit' language in future 'to convict' instructions." Jones, 106 Wn. App. at 45.
Levy raises several additional arguments pro se. His first challenge relates to the fact that John Cox, the driver of the Suburban, was not called as a witness at his suppression hearing. Levy cites to State v. Davis, 73 Wn.2d 271, 438 P.2d 185 (1968), wherein the Court held that the State's failure at trial to produce an undersheriff as a witness to verify that the defendant waived his constitutional rights raised an inference that his testimony would have been unfavorable to the State, in light of the fact that the undersheriff was the only other person present during the interrogation of the defendant. The rule in Davis only applies when the witness is "peculiarly available" to the State. The record here does not demonstrate that Cox was peculiarly available to the State. And Cox was not the only witness to the events relevant to the suppression hearing. Davis is inapplicable.
Levy makes a similar argument with regards to a witness he refers to as "Seargent [sic.] Zillmer." If this alleged witness were a police officer, he or she arguably could be considered peculiarly available to the State. We are unable to analyze this issue further, because there is no reference to a Sergeant Zillmer in the record. But Davis would not seem to be on point in any event, as there were apparently several officers present at the time of the search of the Suburban.
Levy next argues that his trial counsel provided ineffective assistance of counsel at the suppression hearing by failing to adequately research the issues, and by inadequately arguing at the hearing. To prove ineffective assistance, Levy must show deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Levy has shown neither here. From our review of the record, it appears that counsel was well-prepared and made appropriate arguments based on the facts and the laws. And Levy is unable to show that the result of the hearing would have been different absent his counsel's performance. This claim therefore fails.
Levy next argues that it was improper for Breena Martin's attorney to assert his client's Fifth Amendment rights on her behalf. He admits that no Washington case law supports his contention, but cites to a 5th Circuit federal case, United States v. Goodwin, 625 F.2d 693 (1980). Citing to Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951), the court in Goodwin holds that the Fifth Amendment privilege is applicable when a potential witness has "reasonable cause to apprehend danger from a direct answer." Goodwin, 625 F.2d at 700, quoting Hoffman, 341 U.S. at 486, 71 S.Ct. at 818. Goodwin further holds that: this is a question for the court to decide, the witness may not establish the privilege by his bald assertion of the privilege. Of course, the witness need not prove the danger, otherwise the privilege would be meaningless.
To sustain the privilege, it need only be evident from the implications of the questions, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. Goodwin, 625 F.2d at 700. Here, Martin was Levy's co-defendant. She was clearly entitled to claim the privilege. And Goodwin does not hold that the defendant must personally be brought before the court to raise the claim of privilege, or that an attorney may not raise the claim on behalf of his or her client in the absence of an objection.
Levy also claims that his attorney was ineffective for failing to object to this procedure, and for stating that he would not waste the court's time and resources in bringing Martin over if her attorney said she would claim the privilege. This claim fails because Levy cannot establish prejudice. He has not established that Martin would have testified if she had been brought before the court, or that she would have testified favorably. In another claim of ineffective assistance of counsel, Levy contends that his trial attorney should have admitted into evidence a property booking receipt. The receipt was for jewelry that Levy was wearing when he was arrested on October 20, 2002. Clearly, the decision not to admit this evidence was tactical, and a reasonable attorney could conclude that it was not in his client's best interests to admit evidence that he was booked into jail just days before the incident in question. Further, Levy again cannot show prejudice, because he has not established that the jewelry he had on October 20, 2002, was the same as the jewelry found in his possession on October 24, 2002.
Levy next contends that at least two of the State's witnesses violated the court's order that witnesses not discuss the substance of their testimony with other witnesses. This claim cannot be analyzed in this direct appeal, because the facts to support this allegation, if any, are not contained within the record. The record does contain a discussion about two witnesses being transported from the jail in the same van, but according to the representations of the prosecutor contained in the record, the witnesses were kept apart, and did not discuss anything.
Levy contends that his trial attorney was ineffective for failing to object to the testimony of Officer Jeanne Innis. Innis testified that Thorne had told her that Levy had punched her in the face. On cross-examination, Levy's attorney brought out the fact that Thorne had no visible injuries. On re-direct, the prosecutor asked Innis what she had done for a living before becoming a police officer. Innis stated that she had been a nurse. The prosecutor then proceeded to ask Innis whether, in her experience, it was surprising that Thorne had no marks on her face. Innis stated that it was not necessarily surprising, depending on how hard she was hit. On re-cross, Innis testified that Thorne said she was hit so hard that her face was knocked into the wall.
Levy claims that this testimony was improper opinion testimony from an unqualified expert, and that his attorney was ineffective for failing to object to it. From the record, it appears that Levy's attorney did a very capable job of using Innis's testimony to impeach Thorne's claim that Levy hit her. Further, had Levy's attorney made an objection as to Innis's qualifications as an expert, the State may well have been able to lay a foundation to have Innis qualified as an expert. Levy has therefore established neither deficient performance nor prejudice.
Levy next claims that he was denied the right to a fair trial because he was wearing a red jail i.d. during trial. Levy made no objection to this below, and from the record we are unable to determine whether this is true, or whether Levy could have been prejudiced.
Levy claims that his right to a speedy trial was violated. Levy raised this issue at the trial court pro se, claiming that he had waived his right to a speedy trial in exchange for the prosecutor agreeing not to take a position at his bail hearing, and that the prosecutor then breached the agreement by telling the court that he was facing over 100 months in prison. When Levy raised the issue below, the court said it would not address the issue at that time because the State was not prepared to respond. The issue was not raised again. Nothing in the record supports Levy's claim, and in his brief Levy cites to no facts or law to support his contention. We therefore are unable to consider this issue.
Levy argues that the court erred in not allowing his attorney to withdraw at sentencing. Levy refers to two hearings allegedly held on February 20, 2003, and March 3, 2003, wherein the issue was allegedly raised below. But no hearing was held in this matter on those dates. Levy was sentenced on February 26, 2003, and the record does not reflect that either Levy or his counsel brought a motion for counsel to withdraw.
Levy also contends that his counsel was ineffective for failing to object to the inclusion of a California conviction in his offender score. Here again, Levy contends that an issue was raised at a hearing on March 3, 2003. But Levy was sentenced on these matters on February 26, 2003, and the exchanges he claims happened at his sentencing do not appear in the record in this case. The transcript from the sentencing hearing does indicate that Levy was scheduled to begin trial on other charges, so it appears that these claims relate to another conviction. In any event, on the claim of ineffective assistance, Levy is unable to demonstrate prejudice because he has not shown that his offender score was improperly calculated.
Levy challenges the sufficiency of the evidence against him, pointing to various inconsistencies in the witnesses' testimony. Evidence is sufficient to support a conviction if, 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 reasonable inferences drawn from them. Salinas, 119 Wn.2d at 201. Based on these standards, the evidence was clearly sufficient. And we defer to the trier of fact on issues involving conflicting testimony, the credibility of witnesses, and the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997).
Levy contends that he was prejudiced by the fact that his co-defendant, Martin, was represented by an attorney who had formerly represented him. He further contends that he had filed a bar complaint against the attorney. This issue was raised below, and Martin's attorney did not recall representing Levy. Later, the attorney stated that he had searched his files and found no record of ever having represented Levy. This claim is therefore not supported by the record. Nor has Levy explained how he would have been prejudiced in any event, given that he and Martin were tried separately and Martin did not testify in Levy's trial.
Finally, Levy raises another claim of ineffective assistance of counsel, claiming that his attorney was deficient in his questioning of Montemayor about the jewelry that was taken. On cross-examination, Levy's attorney was able to get Montemayor to admit that he told the police he had two silver and one gold necklace taken, while he had testified at trial that he had two gold and one silver necklace taken. This was not deficient performance.
Affirmed.
COLEMAN and APPELWICK, JJ., concur.