Opinion
No. 52386-4-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-1-10218-9. Judgment or order under review. Date filed: 05/09/2003. Judge signing: Hon. Carol A. Schapira.
Counsel for Appellant(s), Jason Brett Saunders, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Dennis John McCurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2362.
Michael Chiofar filed a civil lawsuit against five different parties concerning the value of coins he owned. Opposing counsel in the lawsuit sent Chiofar 20-pages of interrogatories, for which Chiofar provided answers. When opposing counsel asked for more in-depth answers, Chiofar stated that he could not provide them. The attorney filed a motion to compel, which was granted. Chiofar filed a motion for reconsideration, along with a declaration from his psychiatrist stating that Chiofar was mentally ill and had answered the questions to the best of his ability. The judge denied Chiofar's motion.
Soon after, Chiofar called and left the judge's bailiff six telephone messages. The judge believed that the messages were threatening and hostile and reported them to the police. Chiofar was arrested, charged with intimidation of a judge, and convicted by a jury. Chiofar appeals, claiming that the intimidation of a judge statute is overbroad and violates the First Amendment, and that the State presented insufficient evidence to convict him in any event. We affirm the conviction.
FACTS
Michael Chiofar, a.k.a. Michael Gummo, filed a civil lawsuit against five different parties concerning the value of coins he owned. At the time of the suit, Chiofar was receiving Social Security Disability Income for paranoid schizophrenia, psychotic depression, and obsessive-compulsive behavior and was taking several psychotropic drugs. Opposing counsel in the civil lawsuit, Michael Aronoff, sent Chiofar 20-pages of interrogatories, which Chiofar filled out and returned. When Aronoff asked for more in-depth answers, Chiofar explained he could not provide them. Aronoff thereafter filed a motion to compel in King County Superior Court and requested sanctions. Judge Richard McDermott granted the motion and ordered that Chiofar be more complete in his answers. Chiofar filed a motion for reconsideration, along with an attached declaration from his psychiatrist stating that Chiofar was mentally ill and had answered the questions to the best of his ability. On November 6, 2002, Chiofar received an order denying his motion for reconsideration.
On the evening of November 19, 2002, Chiofar called Judge McDermott's chambers and left the judge's bailiff six messages. The content of these six messages is as follows:
#1 (November 19, 2002, at 8:23 p.m.) —
Hi Nikki Riley. This is Michael Gummo, and this is directed to Judge Richard McDermott, or so-called judge. And your communications with Michael Aronoff about me not getting some mail was something you knew about and McDermott, Aronoff has written to me a letter about, obviously there's been some communications between you, Nikki, and Judge McDermott with Aronoff, my opposition. I've got psychiatric evidence indicating that he's been court favored and, ah, I think there's gonna be some opening up of these probable aspects that he paid you guys off for this decision. There will be further lawsuits. I intend to type up a new lawsuit against Judge McDermott's Court via the Superior Court, him as the particular judge and the bailiff. And I'm going after Mr. Aronoff too. You also will receive, um, um, certified copies of another lawsuit I'm bringing up against you. They may have to move my case to another county. But I'm not gonna let (inaudible) get off with some shyster attorney and your gawd-damn judge, which is being paid off by my opposition. You tell Judge McDermott he can lick Mr. Aronoff's a**hole and taste the sweet chocolates of his shit. But you tell that Mr. McDermott that he's not gonna f*** me over!
#2 (November 19, 2002, at 8:28 p.m.) —
Hi Nikki. You tell the judge this is Michael Gummo again. And he wasn't paid nearly enough to do what I'm gonna do to him. He should've taken a lot more money from Aronoff. And if he thinks he's gonna pass his little police officers on to me with guns, well I, I help people who deal with guns too and I called the Federal Way Police and the King County Police, and I have lots of friends there. If he wants to get a push come to shove, then let's get it done . . . today.
#3 (November 19, 2002, at 11:26 p.m.) —
Hi Nikki Riley. This is Michael Gummo. I wanna say that Judge McDermott is far from being honorable. He took a payoff from Attorney Aronoff. And don't tell me he didn't. 'Cuz your court has been communicating with Aronoff, ah, and information that only you and I should've known that Aronoff found out about it, he's come up with information from your court that was not shared by me. Your court is talking to Aronoff behind my back, and I bet you a dime to a dollar that he's paid off Judge McDermott. And I'm gonna get to the bottom of this one way or another. One way or another, we're gonna find out. We're gonna find how much he was paid, what the terms were, etceteras. But your judge is far from being honorable. And he will have to pay for what he's done to me. I guarantee you, you and he will pay.
#4 (November 19, 2002, at 11:29 p.m.) —
Hi Nikki, this is Michael again at ***_***_****. I don't mean to be an, an awful person, but I think it's rather clear when my doctor says, and I'll read the statement, my psychiatrist of 10 years that I cannot answer those Aronoff interrogatories any better than what I've done due to my psychotic depression. I think it's pretty clear when your judge says to hell with my doctor, he knows more about psychiatry than I do, ah, than he does, then your judge is just flat-out wrong. I think you'll have to admit that with me. And I'm gonna have some stories published in the newspapers. I'm gonna stand on the street with some pamphlets to hand out. I'm gonna do everything I can to make sure that (inaudible) a quack, the phony Judge McDermott is exposed. And I intend to do it. Believe me, I'm gonna do it. Um, I'm sick of your judge. He's far from being honorable. He's a little piece of sh** and I wish to h*** he'd pack his bag and go back to his home town. And leave this state with his family. That's what I wish and you can't sit there as a bailiff and tell me he's done something good. You know he was paid off by Aronoff and I'm gonna find out how much, whatever it takes. And I'm gonna bring it to light in the public media. So you understand that about me now. Nobody tells me that a doctor's saying that I've done the best I can, my psychiatrist, and I have too said that I have done the best I can. Why doesn't he point out that the particular degrees of inefficiency in my answer so I can possibly proceed to answer them even further if I could? I don't know if I can. The doctor said I can't. What does Judge McDermott think he is . . .
#5 (November 19, 2002, at 12:15 a.m.) —
Hi Bailiff Nikki Riley. This is Michael Gummo at ***_***_****. I really don't like to cause trouble for people, but when they backstab me, I literally have to leach out. You take a situation where you were, ah, taken by a scapegoat artist and he took all your money. So you couldn't even afford an attorney to represent you any longer. And he took 120,000 dollars from you, your life savings, and he hires a hot-shot attorney who bribes the judge. How would you like it if you lost your life-time savings and the judge in the case was bribed? I got a statement from my psychiatrist saying that I answered those questions to the best of my ability. And I know that Judge Richard McDermott is not a psychiatrist. And I've been seeing that psychiatrist for 10 years. Now you tell me how that judge can lawfully undo what that psychiatrist of 77 years of age now and practicing over 52 years, you tell me how Judge Richard McDermott knows more than that psychiatrist does. I answered those interrogatories to the best of my ability. And for your judge to order me to answer them again (inaudible) and pay monies which I don't have, I'm on SSI Disability, I've got a mental disability, to pay one-third to one-half of my monthly check to an opposition attorney when I can't even afford my own attorney, you ask that judge who in the h*** and what the h*** amount was paid by Aronoff to that judge to do this to me? Imagine for a minute, Nikki Riley, imagine that you were in my brain . . . [message cut-off by phone machine].
#6 (November 20, 2002, at 12:20 a.m.) —
Hi Nikki Riley. This is Michael Gummo again. If you were in my brain slot and you had several degrees from UW, straight A, Honor Society in Philosophy of Logic nonetheless, and the judge sat up there and told you that 1 plus 1 equals 14, are you supposed to accept that, Nikki Riley? Would you raise h*** if that happened to you? Well, you d*** well better believe that this one's gonna raise h***. And it may be uncounterfieted, which means I am gonna get Mr. McDermott in the (inaudible), in the Judge's Judicial Conduct Commission. I am gonna boil that man alive. He's a rotten person. He doesn't know anything about the religions of the world or morality. You just tell him that. You let him listen to all these recordings, 'cuz Judge McDermott, I'm comin' after you. And I ain't gonna stop for nothin'.
Judge McDermott's bailiff received these messages on the morning of November 20, 2002, and played them for the judge. The judge believed that the messages were threatening and hostile and reported them to the police. Judge McDermott later testified that he was so concerned about Chiofar's threat that he was 'going to get me,' that the judge contacted a friend about purchasing a handgun.
Chiofar was arrested and charged with intimidation of a judge in violation of RCW 9A.72.160 and RCW 9A.04.110(25)(a), (e), and (j). After several competency and diminished capacity hearings, the case was sent to a jury trial. Chiofar was convicted as charged and was sentenced to 90 days incarceration and 24 months of community custody. He was given credit for 159 days served and was released. Chiofar appeals, claiming that the statute is unconstitutional because it is overbroad and that the State presented insufficient evidence to convict him. In his pro se statement of additional authorities, Chiofar additionally argues that his due process rights were violated during his incarceration prior to trial and that he received ineffective assistance of counsel.
DISCUSSION I. Constitutionality of RCW 9A.72.160(1)
Chiofar first asserts that RCW 9A.72.160(1) is unconstitutional. He argues that the statute violates the First Amendment of the U.S. Constitution because its 'threat' definitions used by the State at trial, contained in RCW 9A.04.110(25), are overbroad and impinge upon protected speech. Chiofar was charged with violating RCW 9A.72.160, intimidation of a judge, which provides:
(1) A person is guilty of intimidating a judge if a person directs a threat to a judge because of a ruling or decision of the judge in any official proceeding, or if by use of a threat directed to a judge, a person attempts to influence a ruling or decision of the judge in any official proceeding.
(2) 'Threat' as used in this section means:
(a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or
(b) Threats as defined in RCW 9A.04.110(25).
The State charged Chiofar with violations of RCW 9A.04.110(25)(a), (e), and (j). Those subsections provide additional definitions of 'threat' for purposes of RCW 9A.72.160(2)(b):
(25) 'Threat' means to communicate, directly or indirectly the intent:
(a) To cause bodily injury in the future to the person threatened or to any other person; or
. . . .
(e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or
. . . .
(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his health, safety, business, financial condition, or personal relationships[.]
The purpose of overbreadth analysis is to ensure that legislation does not prohibit constitutionally protected conduct, including free speech. See, e.g., State v. Knowles, 91 Wn. App. 367, 372, 957 P.2d 797 (1998); City of Seattle v. Ivan, 71 Wn. App. 145, 149, 856 P.2d 1116 (1993), citing City of Tacoma v. Luvene, 118 Wn.2d 826, 827 P.2d 1374 (1992). 'A criminal statute that 'sweeps constitutionally protected free speech activities within its prohibitions' may be overbroad and thus violate the First Amendment.' State v. Stephenson, 89 Wn. App. 794, 800, 950 P.2d 38 (1998), quoting City of Seattle v. Abercrombie, 85 Wn. App. 393, 397, 945 P.2d 1132 (1997), citing Thornhill v. Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 741, 84 L. Ed. 1093 (1940).
When addressing an overbreadth challenge, this court considers (1) whether the challenged statute reaches constitutionally protected speech or expression and (2) whether it proscribes a real and substantial amount of speech. Knowles, 91 Wn. App. at 372. 'If the answer to those two questions is yes, [the court] must strike the statute as overbroad unless the regulation of protected speech is constitutionally permissible or it is possible to limit the statute's construction so that it does not unconstitutionally interfere with protected speech.' Stephenson, 89 Wn. App. at 800, citing City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989), citing City of Houston v. Hill, 482 U.S. 451, 458, 107 S. Ct. 2502, 2508, 96 L. Ed. 2d 398 (1987). Because '[a]pplication of the overbreadth doctrine is strong medicine,' courts employ it 'sparingly and only as a last resort,' upholding the constitutionality of statutes if possible. State v. Halstien, 122 Wn.2d 109, 122-23, 857 P.2d 270 (1993) (citations omitted); Luvene, 118 Wn.2d at 839-40.
Certain types of speech, such as 'fighting words' and 'true threats,' are not protected by the First Amendment. Knowles, 91 Wn. App. at 373; Stephenson, 89 Wn. App. at 801, citing Halstien, 122 Wn.2d at 121. A true threat is defined as a statement 'in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of intention to inflict bodily harm upon or to take the life of [another individual].'
Stephenson, 89 Wn. App. at 801, quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990), quoting United States v. Hoffman, 806 F.2d 703, 707 (7th Cir. 1986); United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir. 1990). In this context, the definition of 'threat' contained in RCW 9A.04.110(25)(a) describes a 'true threat,' and is thus not protected by the First Amendment. Chiofar concedes that the threats defined by RCW 9A.04.110(25)(a) are not protected by the First Amendment. Thus, we need only address whether the other two definitions challenged by Chiofar, RCW 9A.04.110(25)(e), and (j), reach constitutionally protected speech and whether they proscribe a 'real and substantial' amount of protected speech. Two Washington Appellate Court cases, State v. Knowles and State v. Stephenson, applied the overbreadth analysis to statutes either similar to or the same as the one examined here and will be helpful in our analysis. Knowles, 91 Wn. App. at 371 (examined RCW 9A.76.180, intimidation of a public servant statute); Stephenson, 89 Wn. App. at 799-800 (examined RCW 9A.72.160, intimidation of a judge statute). Both Knowles and Stephenson examined situations where a defendant sent letters to judges threatening to file liens against their property if they failed to dismiss his criminal case or release him from custody. The defendants were prosecuted under different statutes, but both statutes referenced the 'threat' definition contained in RCW 9A.04.110(25)(j). Knowles, 91 Wn. App. at 370-71; Stephenson, 89 Wn. App. at 798-800. In determining whether the definition in RCW 9A.04.110(25)(j) was overbroad, both courts first held that its restrictions encompassed a real and substantial amount of protected speech. Knowles, 91 Wn. App. at 374; Stephenson, 89 Wn. App. at 802.
The Stephenson and Knowles courts reached this initial conclusion without discussing any case law regarding First Amendment protections for speech involving threats of harm to a person's business, financial condition, or personal relationships, the areas of communication described in 9A.04.110(25)(j). Knowles, 91 Wn. App. at 374; Stephenson, 89 Wn. App. at 802. Thus, the State argues that both courts improperly determined that the statements encompassed a real and substantial amount of protected speech. The State asserts that the criminal statute as a whole must be analyzed. The State argues that because one cannot be convicted solely of making a threat defined by RCW 9A.04.110(25), and that the threat only becomes a crime when made to judge because of a ruling or decision of the judge in any official proceeding, or in an attempt to influence a ruling or decision of the judge in any official proceeding, the statute's prohibitions do not seem to encompass a real and substantial amount of protected speech. RCW 9A.72.160.
However, the State has cited no authority for its argument. Additionally the definition of 'threat' contained in RCW 9A.04.110(25)(e), '[to] expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule,' appears to regulate a real and substantial amount of protected speech. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 526-27, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001) (applying overbreadth analysis to federal statute restricting publication of illegally intercepted and recorded cell phone messages because the prohibition against disclosures was 'fairly characterized as a regulation of speech'). See also, New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971) (upholding the right of the press to publish information of great public concern obtained from documents stolen by a third party). In sum, because the State cites no cases that illustrate that RCW 9A.04.110(25)(e) and (j) do not regulate a real and substantial amount of protected speech, we decline to consider the State's arguments on appeal that they do not. RAP 10.3(a)(5).
However, even if RCW 9A.40.110(25)(e) and (j) proscribe a real and substantial amount of speech, government may regulate protected speech in some circumstances. Huff, 111 Wn.2d at 926. The extent of permissible regulation depends on whether the speech takes place in a public or private forum; the First Amendment traditionally affords more protection to speech made in a public forum and to channels of communication used by the public at large for assembly and speech than to speech made in private by telephone or letter. See, Knowles, 91 Wn. App at 367; Stephenson, 89 Wn. App. at 802; Ivan, 71 Wn. App. at 152. '[S]peech in nonpublic forums, including speech over the telephone, may be restricted if it is found that 'the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.'' State v. Dyson, 74 Wn. App. 237, 242-43, 872 P.2d 1115 (1994), quoting Huff, 111 Wn.2d at 927.
The Stephenson and Knowles courts determined that the letters written by the defendants to the judges were similar to threats made by telephone, and were thus private in nature. Knowles, 91 Wn. App. at 375-76; Stephenson, 89 Wn. App. at 802. Here, it is clear that the telephone threats were private in nature. Huff, 111 Wn.2d at 927 (telephone discussions are of a private nature and not a public forum). Thus, the speech is afforded less protection and this court must examine whether the restrictions contained in the statute are reasonable. 'In determining the reasonableness of a regulation, we consider its relation to the overall problem the government seeks to correct.' Stephenson, 89 Wn. App. at 803, citing Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 127, 937 P.2d 154, 943 P.2d 1358 (1997). '[T]he legislative intent behind RCW 9A.72.160(1) is to protect judges from the threat of harm due by retaliatory acts because of past official actions by a judge.' State v. Hansen, 122 Wn.2d 712, 717, 862 P.2d 117 (1993). The statute is also intended to (1) protect public servants from threats of substantial harm based upon the discharge of their official duties; (2) protect the public's interest in a fair and independent decision-making process; and (3) help maintain public confidence in democratic institutions by deterring the intimidation and threats that lead to corrupt decision making. Knowles, 91 Wn. App. at 376, citing Stephenson, 89 Wn. App. at 803-04.
These 'significant' government interests are considered 'compelling in a democracy.' Knowles, 91 Wn. App. at 376, 378; Stephenson, 89 Wn. App. at 804, citing City of Hoquiam v. Public Employment Relations Comm'n, 97 Wn.2d 481, 488, 646 P.2d 129 (1982); In re Stockwell, 28 Wn. App. 295, 299, 622 P.2d 910 (1981) (public officials must be objective and free as possible of entangling influences). We conclude that the statute is narrowly tailored to meet these compelling interests 'because it applies only to judges and criminalizes only threats made because of or to influence official acts.' Knowles, 91 Wn. App. at 378; RCW 9A.72.160. Additionally, '[b]y requiring that the criminalized threat be made because of a prior official act,' the statute is sufficiently narrow to meet its purpose of protecting judges from retaliatory acts when they enforce unpopular laws. Knowles, 91 Wn. App. at 379. Considering the purpose of the statute and the narrow class of persons to whom it applies, we hold that the prohibitions contained in RCW 9A.72.160, relating to threats defined by RCW 9A.40.110(25)(e) and (j), are not overbroad.
II. Sufficiency of the Evidence
Chiofar next asserts that even if RCW 9A.72.160(1) is constitutional, the State presented insufficient evidence to prove that he was guilty of intimidating a judge. A reviewing court must affirm a conviction if after viewing the evidence in a light most favorable to the prosecution, "a rational trier of fact could have found all of the elements of the crime beyond a reasonable doubt.' Hansen, 122 Wn.2d at 718, citing State v. Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). "'A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.'" Hansen, 122 Wn.2d at 718, quoting State v. Spruell, 57 Wn. App. 383, 385, 788 P.2d 21 (1990). The elements required to be proven under RCW 9A.72.160(1) are: (1) that a person directs a threat, either directly or indirectly; (2) to a judge; and (3) because of a ruling or decision by that judge in any official proceeding. Hansen, 122 Wn.2d at 718. Thus, the jury was properly instructed at trial that it could find Chiofar guilty of intimidating a judge if it determined, beyond a reasonable doubt, that he directed a threat to a judge because of a ruling or decision of the judge in any official proceeding.
Although Chiofar claims in his reply brief that the State misconstrues the record when it asserts that he admitted in testimony that the purpose of his call was to influence or alter the decision of the judge, it is clear that he admitted that he made the calls in response to the judge's ruling. Chiofar also admits in his briefing for this appeal that his comments were made to Judge McDermott in part because of a ruling or decision by the judge in an official proceeding, 'sufficient to satisfy RCW 9A.72.160(1)'. Additionally, the record shows that Chiofar made the calls in response to the judge's ruling. When Chiofar was asked during trial why he called Judge McDermott, Chiofar testified that:
[W]hat the Judge had done in his decision was to infuriate me. And, I tried to call him back. And sometimes things just keep building up and building up. And, what (inaudible) just have to burst open sometimes. And it took a couple of weeks for me to reach my breaking point.
Report of Proceedings 4/23/03 at 100. The Prosecutor and Chiofar then engaged in the following exchange:
Q. . . . You agree that these calls were made in response to the Judge's ruling?
A. Not necessarily. Because I felt like at one time I wanted to tell the Judge off even before the end.
Q. But, the specific concerns you had were as a result of the ruling itself? You were upset about that ruling?
A. Not the ruling to deny the reconsideration. I knew that could happen, and I was prepared to appeal it to the Court of appeals. . . . What pissed me off was that he made the initial decision in the first place.
Q. So, whether it was the initial ruling or the reconsideration, that's what you were upset about?
A. Yes. . . .
Report of Proceedings at 4/23/03 at 110-11.
Q. And, when you called the Judge to leave these messages, you had a specific purpose in mind, namely to tell him what you thought.
A. My mind does not have a specific purpose. I think about 12 or 20 different things at the same time. I might have driving out to the car garage or driving out to Tacoma or getting something to eat. I don't just have in my mind — I don't just have one specific purpose. I have lots of purposes. (Inaudible).
Q. Let me rephrase my question, sir. A purpose to tell the Judge what you planned to do, which was alter to [sic] his decision.
A. Yes.
Report of Proceedings at 4/23/03 at 113.
Thus, in addition to admitting that the comments were made in response to Judge McDermott's ruling, the record also shows a reasonable inference that Chiofar admitted that one of the purposes of his calls was to get Judge McDermott to alter his decision. Therefore, we find that Chiofar's admissions in his brief and his testimony at trial are both sufficient to satisfy two elements of RCW 9A.72.160(1), that the threats be directed to a judge because of a ruling or decision of the judge in an official proceeding.
At trial, the jury was instructed that the term 'threat' meant to communicate, directly or indirectly, the intent:
To cause bodily injury in the future to the person threatened or to any other person; or [t]o expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule; or [t]o do any other act which is intended to harm substantially the person threatened or another with respect to that person's health, safety, business, financial condition or personal relationships.
Clerk's Papers at 25, Instruction No. 7. Both Chiofar and the State agree that this jury instruction follows the 'threat' definitions set forth in RCW 9A.04.110(25)(a), (e), and (j). The jury was also instructed that the threats that were at issue in the charge were threats Chiofar made to Judge McDermott to either (a) tell the media that the judge had accepted a bribe, or (b) that he was coming after the judge and would stop at nothing. Viewing the evidence in a light most favorable to the prosecution, we conclude that the telephone messages are sufficient evidence of 'threats' as defined by RCW 9A.04.110(25)(a), (e), and (j). The comment 'Judge McDermott, I'm comin' after you. And I ain't gonna stop for nothin'' reasonably could be interpreted as a threat to cause bodily harm, a threat defined by RCW 9A.04.110(25)(a), or to do any other act to substantially harm the judge's health or safety, a threat defined by RCW 9A.04.110(25)(j). The threat to tell media that Judge McDermott had accepted a bribe reasonably could also be viewed as a threat to assert a fact that would subject the judge to contempt or ridicule, a threat defined by RCW 9A.04.110(25)(e). This threat could also reasonably be seen as a threat to do any other act intended to substantially harm the Judge's business, financial condition, or personal relationships, a threat defined by RCW 9A.04.110(25)(j).
It is clear that, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus, we hold that the State presented sufficient evidence to convict Chiofar and affirm the conviction.
III. Pro-Se Statement of Additional Authorities
In his pro se statement of additional grounds for review, Chiofar argues that he received ineffective assistance of counsel at trial and that his due process rights were violated during his incarceration prior to trial. Chiofar appears to believe that his criminal conviction, standing alone, illustrates that his attorney was ineffective in his representation. But there is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. In re Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998), citing Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In order to establish ineffective assistance of counsel, the defendant must show both that counsel's conduct 'fell below an objective standard of reasonableness,' and also that 'but for counsel's unprofessional errors, there is a reasonable probability the outcome of the proceeding would have been different.' Pirtle, 136 Wn.2d at 487, citing In re Rice, 118 Wn.2d 876, 888, 828 P.2d 1086 (1992). Chiofar's mere assertion that they lost his case is not sufficient to support an ineffective assistance of counsel claim. Thus, we reject it.
Chiofar also states a third claim for relief, titled 'elements beyond reason (secret movements of the heart),' and directs the court to read 14 pages of excerpts from French philosophers, the Bible, and other works. (Statement of Additional Grounds at 6). This portion of Chiofar's brief does not describe a cognizable legal claim and is therefore not addressed in this opinion.
Regarding Chiofar's due process claims, he appears to argue that he was denied due process because he was not arraigned or given counsel until 20 days after arrest. Chiofar appears to rely on the previous CrR 3.3(c)(1) for this argument, but this rule was amended in September of 2001. Currently, all criminal defendants must be arraigned within 14 days after the information or indictment is filed in superior court. CrR 3.3(c)(1) (amended September, 2001); CrR 4.1. Although Chiofar admitted in his Motion for Dismissal that he was not released because he was unable to meet the $20,000 bail set by the court, he additionally argues that his due process rights were violated because he was jailed for 162 days before he was released after trial.
While Chiofar fails to provide any citation to authority for his argument that his due process rights were violated and provides no specific cites to the record in the present case to support his claim, this failure does not defeat his due process arguments. RAP 10.10. However, the record presented to us on appeal contains no evidence to support his claims. Thus, the record is insufficient for us to address his due process claims on direct appeal. See, State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995) (if the facts necessary to adjudicate a claimed constitutional error raised for the first time on appeal are not in the record on appeal, no actual prejudice is shown and the error is not manifest).
Chiofar also supplies cause numbers for other cases in support of his due process arguments, and directs this court to review arguments contained within those cases. Chiofar claims that several court cases in which he was a party contain evidence of his claim. Chiofar refers to Gummo-Chiofor v. O'Brien, et. al., Cause No. 02-2-12541-7SEA (2003); and Gummo v. Bergland, et. al, Cause No. 02-2111155-6KNT (2003). Chiofar has not provided the records from any of these cases. Although we are not obligated to inquire further, a search on the court's computer records in the Scomis database does not reveal what these cases are about or what their records might reveal about his current claim. Chiofar also cites Cause No. 01-2-08283-3KNT (2002), but this case is offline and the names of the parties could not found. Chiofar cites a fourth case, City of Renton v. Michael Gummo [Chiofar], No. CR25007 (2001), but this appears to be a district court case and is not available on Scomis.
Affirmed.
ELLINGTON, A.C.J. and Agid, J., concur.