Opinion
No. 33580-8-II.
April 10, 2007.
Appeal from a judgment of the Superior Court for Mason County, No. 04-1-00283-4, James B. Sawyer II, J., entered June 27, 2005.
Affirmed in part and remanded by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Penoyar, JJ.
Richard A. Plechner appeals his convictions of: (1) third degree assault; (2) second degree taking a motor vehicle without permission; and (3) "hit and run injury accident." We affirm the convictions, holding that the third degree assault and the "hit and run injury accident" do not merge and are not the same criminal conduct. Nevertheless, we remand for the trial court to enter a clarification to the judgment and sentence that expressly states that all time served, including community custody, may not exceed 60 months.
FACTS
Richard Plechner offered to purchase Otto Holz's pickup truck for $800 and title to another vehicle. A few days later, Plechner and Holz met again and drank several beers. By the afternoon, after they had "run out of booze," Holz agreed to drive Plechner home. 2 RP at 191.
On the way, they stopped at a restaurant for dinner and more drinks. Later, they left the restaurant and Holz drove Plechner home. Besides agreeing to drive Plechner home, Holz also wanted to see the vehicle that Plechner was willing to trade.
According to Holz, they arrived at Plechner's home, and Plechner asked if he could "drive the pickup." 2 RP at 198. Holz agreed. "[Plechner] got into the truck . . . he was playing like Mario Andretti off of the gosh darn starting block." 2 RP at 201. After Plechner ignored Holz's warnings to stop the pickup truck and get out, Holz reached over to the driver's side of the vehicle and pulled the keys out of the ignition. But Plechner grabbed the keys and started the pickup truck. Holz again tried to pull the keys out of the ignition; but after that attempt, "the lights went out." 2 RP at 202.
According to Plechner, Holz was "becoming super drunk" on the way to Plechner's home. 3 RP at 376. So, Plechner tricked Holz into stopping the pickup truck. When Holz exited the pickup truck, Plechner "slid to the driver's side of the [pickup truck] to get control." 3 RP at 376. He then drove the pickup truck very slowly off the main road. He testified, "I was afraid that we were gonna get hit, we were gonna get rear-ended. And I wanted to get the truck off the road and parked." 3 RP at 389. Holz tried to pull the keys out of the ignition. Unsuccessful at that attempt, Holz again exited the pickup truck, confronted Plechner, and demanded that he stop the pick up truck.
One witness testified that she saw Holz exit the pickup truck on the passenger side and apparently argue with the driver. At some point, Holz "either fell or he tripped or he was hit by the truck and knocked him off balance." 1 RP at 133. The witness testified that she did not see how Holz came to rest on the ground. "Then the truck ran over him." 1 RP at 133. Another witness then called 911.
When police arrived, one of the officers observed Plechner "running . . . towards his house." 1 RP at 82. When the officer contacted Plechner, he appeared to be intoxicated and under the influence of alcohol. Plechner admitted to the officer that he had been involved in the nearby accident. And Plechner voluntarily returned to the scene of the accident in the officer's patrol car. After determining that there was probable cause for his arrest, the officers arrested Plechner. And the State charged Plechner.
But before trial, the State moved to dismiss the charges without prejudice because two witnesses were unavailable. The trial court granted the State's motion and refused Plechner's motion to reconsider. Ultimately, the State amended the charges and the trial court set a new trial date. A jury then found Plechner guilty of: (1) third degree assault; (2) second degree taking a motor vehicle without permission; and (3) "hit and run injury accident." Plechner appeals.
ANALYSIS I. CrR 8.3(a) Dismissal Without Prejudice
Plechner argues that the trial court erred in denying his motion to reconsider the earlier order dismissing his case without prejudice. Because Plechner's first opportunity to challenge the State's motion occurred when he filed his motion to reconsider, we treat his motion to reconsider as a response to the State's motion. And, therefore, we review whether the trial court abused its discretion under CrR 8.3(a) in dismissing the criminal proceeding without prejudice.
Although CrR 8.3(a) requires "written motion of the prosecuting attorney setting forth the reasons therefor," the trial court dismissed Plechner's criminal proceeding "on the oral motion of the [S]tate." CP at 102. And it appears that Plechner and his counsel were not present when the State moved to dismiss Plechner's criminal proceeding without prejudice. Only the trial judge and deputy prosecutor signed the order.
CrR 8.3(a) gives the trial court discretion to dismiss "upon written motion of the prosecuting attorney setting forth the reasons therefor." While a dismissal has the effect of tolling the speedy trial period under CrR 3.3(e)(4), "a sufficient reason must exist apart from the running of the speedy trial period to justify a dismissal without prejudice under CrR 8.3(a)." State v. Bible, 77 Wn. App. 470, 472, 892 P.2d 116, review denied, 127 Wn.2d 1011 (1995). And the trial court must evaluate possible prejudice to the defendant. Bible, 77 Wn. App. at 472.
Upon dismissal of the criminal proceeding in this case, the trial court released Plechner from custody.
In this case, the trial court dismissed the criminal proceeding without prejudice because the State advised the trial court that "two material witnesses are unavailable . . . until approximately April of [2005]." CP at 102. Plechner asserts that the trial court abused its discretion in dismissing the criminal proceeding without prejudice because the State made its motion for the purpose of avoiding the application of the speedy trial rule. We disagree.
The State originally subpoenaed these two material witnesses on September 3, 2004. The subpoenas remained in effect through November 2, 2004, the trial date. But Plechner failed to appear at trial. And because he failed to appear, the trial court set a new trial date in early January 2005.
The State again sought to subpoena the witnesses, but the State was unsuccessful in its attempt. The State telephoned the witnesses and learned that they had left Shelton on November 29, 2004. In the course of the ensuing conversation, the State discovered that "they were actually 'snowbirding' throughout the American Southwest and were not scheduled to return to Shelton until April of 2005." CP at 91-92. And the witnesses said that "they were not inclined to otherwise accelerate their planned return to Shelton." CP at 92.
Based on this evidence, the trial court concluded: Counsel, I understand . . . the objection of . . . the defense in this situation. However, it's fair to say that the prosecution didn't buy these folks an RV and send them to Arizona or wherever it is they are. They found out that they were at that location and reasonably unavailable. As such, they were put in a position of having to either try and proceed without a critical witness or proceed — or do what they've done and that is the dismissal.
1 RP at 77. Because the State gave a legitimate reason for dismissal, we hold that the trial court properly exercised its discretion in dismissing the criminal proceeding without prejudice.
II. Improper Judicial Comment
Plechner argues that the trial court impermissibly commented on the evidence when it submitted instruction 16 to the jury. Plechner claims that the instruction relieved the State of its burden of proving every essential element of the crime charged beyond a reasonable doubt.
Jury instruction 16 in part stated:
To convict the defendant of the crime of taking a motor vehicle without permission in the second 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 1st day of July, 2004, the defendant intentionally took or drove away an automobile or motor vehicle, to wit: a Mitsubishi truck, WL# A91868N , without permission of the owner or person entitled to the possession thereof, [sic]; and
(2) That the motor vehicle was the property of another, to wit: Otto Holz; and
(3) 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.
CP at 68 (emphasis added).
In Washington, a trial court is forbidden from commenting on the evidence presented at trial and is forbidden from instructing the jury that matters of fact have been established as a matter of law. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999); State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). Article IV, section 16 of the Washington State Constitution provides, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." "The purpose of this provision is to prevent a jury from being influenced by knowledge conveyed to it by the trial judge as to the trial judge's opinion of the evidence submitted." State v. Swan, 114 Wn.2d 613, 657, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991).
Furthermore, we determine whether a comment on the evidence was improper by reviewing the facts and circumstances in each case. State v. Painter, 27 Wn. App. 708, 714, 620 P.2d 1001 (1980), review denied, 95 Wn.2d 1008 (1981).
Finally, judicial comments are presumed prejudicial. State v. Levy, 156 Wn.2d 709, 723, 132 P.3d 1076 (2006). The burden is on the State to show that the defendant was not prejudiced, unless the record affirmatively shows that no prejudice could have resulted. Levy, 156 Wn.2d at 723.
Judicial comments are not structural errors or prejudicial per se. Levy, 156 Wn.2d at 725.
Here, Plechner argues that the references to the "Mitsubishi truck, WL# A91868N" and "Otto Holz" instructed the jury that these matters had been established as a matter of law. CP at 68. He relies on State v. Becker, 132 Wn.2d 54, 935 P.2d 1321 (1997), and State v. Jackman, 125 Wn. App. 552, 104 P.3d 686 (2004), aff'd, 156 Wn.2d 736 (2006), as support for his claim that the references violated the prohibition on judicial comment.
In Becker, our Supreme Court held that a special verdict form, which asked whether defendants were within 1,000 feet of school grounds and which also included the phrase "to-wit: Youth Employment Education Program School," impermissibly relieved the State of its burden to prove that the program was, in fact, a school. Becker, 132 Wn.2d at 64-65. After all, the parties highly contested whether the Youth Employment Education Program was in fact a school. Becker, 132 Wn.2d at 64-65. And whether the Youth Employment Education Program was in fact a school was a threshold issue that had to be established for there to be any crime at all. Becker, 132 Wn.2d at 64-65.
In Jackman, we held that the trial court erred in including the victims' birth dates in the "to convict" instructions because age was an element of the offenses. Jackman, 125 Wn. App. at 558-59. Our Supreme Court agreed with us, stating, "[T]he fundamental basis for the offenses was the fact that the victims were minors. . . . By stating the victims' birth dates in the instructions, the court conveyed the impression that those dates had been proved to be true." Jackman, 156 Wn.2d at 744. Our Supreme Court concluded, "[T]he instructions in this case do not differ meaningfully from the instruction in Becker." Jackman, 156 Wn.2d at 744.
But here, the references to the "Mitsubishi truck, WL# A91868N" and "Otto Holz" are not analogous to the references in Becker or Jackman. Thus, they do not qualify as judicial comments. First, there was no dispute during trial as to whether the Mitsubishi truck was an automobile or motor vehicle. The only question was whether Plechner intentionally took the Mitsubishi truck without the owner's permission. Accordingly, it was appropriate for the trial court to instruct the jury that the Mitsubishi truck was an automobile or motor vehicle. Cf. Levy, 156 Wn.2d at 722 (it was appropriate for the trial court to instruct the jury that jewelry is personal property). Second, the victim's name is not an element of the crime of taking a motor vehicle without permission. Cf. Levy, 156 Wn.2d at 722 (victim's name is not an element of the crime of robbery). And the trial court would not comment on the evidence by naming the alleged victim in the instruction. Levy, 156 Wn.2d at 722. Finally, naming the alleged victim in the instruction does not improperly suggest to the jury that it does not need to find that the property was taken from another. Levy, 156 Wn.2d at 722.
Therefore, reviewing the facts and circumstances of this case, we hold that the "to wit" references in instruction 16 did not qualify as judicial comments.
III. Merging of Crimes
Plechner argues that his convictions for third degree assault and "hit and run injury accident" violate the Fifth Amendment's protection against double jeopardy because they arose from a single act. We disagree.
The State may bring multiple charges arising from the same criminal conduct in a single proceeding. State v. Michielli, 132 Wn.2d 229, 238-39, 937 P.2d 587 (1997). But courts may not enter multiple convictions for the same offense without offending double jeopardy. State v. Vladovic, 99 Wn.2d 413, 422, 662 P.2d 853 (1983). "Where a defendant's act supports charges under two criminal statutes, a court weighing a double jeopardy challenge must determine whether, in light of legislative intent, the charged crimes constitute the same offense." In re Pers. Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004).
The dispositive question is whether the legislature intended to punish separately both an assault and a "hit and run injury accident." See State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005). First, we consider any express or implicit legislative intent. Freeman, 153 Wn.2d at 771-72. Second, if the legislative intent is not clear, we may turn to the Blockburger test. Freeman, 153 Wn.2d at 772; State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995). If each crime contains an element that the other does not, we presume that the crimes are not the same offense for double jeopardy purposes. Freeman, 153 Wn.2d at 772. But this presumption may be rebutted by other evidence of legislative intent. Freeman, 153 Wn.2d at 772. Third, we may consider the merger doctrine as another aid in determining legislative intent, even when the crimes have formally different elements. Freeman, 153 Wn.2d at 772. "Under the merger doctrine, when the degree of one offense is raised by conduct separately criminalized by the legislature, we presume the legislature intended to punish both offenses through a greater sentence for the greater crime." Freeman, 153 Wn.2d at 772-73. Finally, if there is an independent purpose or effect to each offense, they may be punished as separate offenses. Freeman, 153 Wn.2d at 773.
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
Here, Plechner notes that there is no evidence that the legislature explicitly or impliedly intended to punish assault and "hit and run injury accident" separately. And Plechner concedes that the "[t]he two offenses contain different elements and, therefore, are not established by the 'same evidence test.' Thus the prohibition against double jeopardy is not violated here by applying the same evidence test." Br. of Appellant at 25.
Nevertheless, Plechner asks us to consider whether these two crimes merge. As our Supreme Court has noted:
[T]he merger doctrine is a rule of statutory construction which only applies where the Legislature has clearly indicated that in order to prove a particular degree of crime ( e.g., first degree rape) the State must prove not only that a defendant committed that crime ( e.g., rape) but that the crime was accompanied by an act which is defined as a crime elsewhere in the criminal statutes ( e.g., assault or kidnapping).Vladovic, 99 Wn.2d at 420-21. Based on this understanding, Plechner claims that the crime of assault merges in the crime of "hit and run injury accident."
We disagree with Plechner. In this case, assault is not a lesser-included offense of "hit and run injury accident." To prove "hit and run injury accident," the State does not need to prove that Plechner committed an assault. Compare RCW 9A.36.031(1)(d) (third degree assault) with RCW 46.52.020(4)(b) ("hit and run injury accident"). Instead, the State has to prove that Plechner was "involved in an accident."
Under RCW 9A.36.031(1)(d), and under circumstances not amounting to assault in the first or second degree, a person is guilty of third degree assault if with criminal negligence he causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm. Under RCW 46.52.020(4)(b), a driver of any vehicle involved in an accident resulting in injury to or death of any person is guilty of a felony if he fails to stop or comply with any of the requirements of RCW 46.52.020(3), e.g., giving his name, address, insurance company, insurance policy number, and vehicle license number.
RCW 46.52.020(1). And whether a driver has been "involved in an accident" is a fact-specific determination that courts make on a case-by-case basis. State v. Hughes, 80 Wn. App. 196, 202, 907 P.2d 336 (1995).
In any case, there is an independent purpose or effect to each offense. When Plechner committed the "hit and run injury accident," he objectively intended to avoid responsibility for the assault by leaving the scene. Cf. State v. Flake, 76 Wn. App. 174, 180, 883 P.2d 341 (1994) (crimes of vehicular assault and "hit and run injury accident" are not the same criminal conduct for purposes of calculating offender score). "That intention has no relation to the crime of [assault] or any criminal purpose that might be ascribed to it." Flake, 76 Wn. App. at 180-81. And when Plechner committed the "hit and run injury accident," he did not further the assault because the assault was already completed when he fled the scene. Flake, 76 Wn. App. at 181. In other words, the two crimes occurred at different times. Flake, 76 Wn. App. at 181.
Therefore, we hold that the charged crimes do not constitute the same offense and do not violate the Fifth Amendment. Thus, Plechner's argument fails.
IV. Same Criminal Conduct
Plechner argues that the trial court erred in finding that the crimes of third degree assault and "hit and run injury accident" were not the same criminal conduct for purposes of calculating his offender score. Again, we disagree.
Although Plechner did not raise this argument below, a defendant may raise a challenge to his offender score calculation for the first time on appeal. State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994).
Under RCW 9.94A.589(1)(a), same criminal conduct is defined as "two or more crimes that require the same criminal intent, are committed at the same time and place, and involve the same victim." If any one of these three elements of same criminal conduct is missing, a trial court must count multiple offenses separately when calculating a defendant's offender score. State v. Lessley, 118 Wn.2d 773, 778, 827 P.2d 996 (1992). Finally, we will not disturb a trial court's decision of whether two or more crimes are the same criminal conduct unless the trial court abused its discretion or misapplied the law. State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990).
Intent in this context means the defendant's objective criminal purpose in committing the crime. In re Holmes, 69 Wn. App. 282, 290, 848 P.2d 754 (1993).
In Flake, a situation similar to this appeal, Division One of this court decided whether the crimes of vehicular assault and "hit and run injury accident" were the same criminal conduct for purposes of calculating a defendant's offender score. Flake, 76 Wn. App. at 179. Division One ultimately concluded that the trial court did not err by counting these two crimes separately in calculating the defendant's offender score. Flake, 76 Wn. App. at 179.
As in Flake, Plechner's objective purposes for his two crimes were different. When Plechner committed the "hit and run injury accident," he intended to avoid responsibility for the accident by leaving the scene. Again, "[t]hat intention has no relation to the crime of [assault] or any criminal purpose that might be ascribed to it." Flake, 76 Wn. App. at 180-81. In addition, as previously noted, when Plechner committed the "hit and run injury accident," he did not further the assault because the assault was already completed when he fled the scene.
Flake, 76 Wn. App. at 181. The two crimes were not part of a common scheme or plan. See State v. Lewis, 115 Wn.2d 294, 302, 797 P.2d 1141 (1990). And Plechner violated RCW 46.52.020 after the third degree assault.
Because two of the three necessary elements of same criminal conduct are missing, the two crimes are not the same criminal conduct under RCW 9.94A.589(1)(a). Lessley, 118 Wn.2d at 778. Therefore, the trial court did not abuse its discretion or misapply the law by counting the two crimes separately for Plechner's offender score.
V. Community Custody
Plechner argues that his punishment is invalid because the aggregate of his sentence and community custody exceeds the 60-month statutory maximum sentence for each of his offenses. We agree.
The trial court imposed: (1) a standard range sentence of 29 months incarceration plus 9 to 18 months' community custody for the third degree assault; (2) a standard range sentence of 14 months for the second degree taking a motor vehicle without permission; and (3) a standard range sentence of 50 months for the "hit and run injury accident." All sentences were to be served concurrently.
Combining the 50 months of incarceration with the 9 to 18 months of community custody, Plechner argues that his aggregate punishment will be 59 to 68 months. Relying on RCW 9.94A.505(5), and State v. Sloan, 121 Wn. App. 220, 221, 87 P.3d 1214 (2004), he argues that the total punishment, including imprisonment and community custody, may not exceed the statutory maximum.
"Except as provided under RCW 9.94A.750(4) and 9.94A.753(4), a court may not impose a sentence providing for a term of confinement or community supervision, community placement, or community custody which exceeds the statutory maximum for the crime as provided in chapter 9A.20 RCW." RCW 9.94A.505(5).
If Plechner is released from prison before he serves 50 months, because of any early release credits he has earned, he will serve the community custody ordered in his judgment and sentence up to the 60-month maximum. See Sloan, 121 Wn. App. at 223. On the other hand, if he earns no early release time and serves the entire 50-month sentence, he will be released and will serve no more than 10 months of the community custody ordered in his judgment and sentence. See Sloan, 121 Wn. App. at 223. In no event will Plechner serve more than the statutory maximum sentence. See Sloan, 121 Wn. App. at 223.
Nevertheless, such a sentence may generate uncertainty in some circumstances. Sloan, 121 Wn. App. at 223. "To avoid confusion, therefore, when a court imposes community custody that could theoretically exceed the statutory maximum sentence for that offense, the court should set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum." Sloan, 121 Wn. App. at 223-24.
Accordingly, we remand for clarification of Plechner's judgment and sentence.
VI. Statement of Additional Grounds
See RAP 10.10.
A. Calculation of Sentence CrR 8.3(a) Dismissal Without Prejudice
Plechner argues that the trial court erred: (1) in calculating his sentence and (2) in dismissing his case without prejudice. Because of the above analysis, we find these arguments without merit.
B. Dismissal of "Hit and Run Injury Accident"
Plechner argues that the trial court erred in not dismissing this charge. We disagree.
Again, RCW 46.52.020(1) provides:
A driver of any vehicle involved in an accident resulting in the injury to or death of any person . . . shall immediately stop such vehicle at the scene of such accident or as close thereto as possible but shall then forthwith return to, and in every event shall remain at, the scene of such accident until he or she has fulfilled the requirements of subsection (3) of this section.
RCW 46.52.020(3) provides:
[T]he driver of any vehicle involved in an accident resulting in injury to or death of any person . . . or resulting in . . . damage to other property shall give his or her name, address, insurance company, insurance policy number, and vehicle license number and shall exhibit his or her vehicle driver's license to any person struck or injured . . . and shall render to any person injured in such accident reasonable assistance, including the carrying or the making of arrangement for the carrying of such person to a physician or hospital for medical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person or on his or her behalf.
Plechner claims that there was insufficient evidence to support his conviction because "there was no reason for me to think that [Holz] needed to go to the hospital or seek medical treatment." SAG at 1.
While that may be true, Plechner still fled the accident scene in violation of RCW 46.52.020(1) and did not comply with the remaining requirements of RCW 46.52.020(3). In fact, two witnesses observed him fleeing the scene. Julie Waldrop testified that after the accident Plechner "started walking home down the alley." 1 RP at 137. Officer Campbell testified that when he arrived at the scene he saw Plechner "running . . . towards his house." 1 RP at 82.
Thus, Plechner's argument fails.
C. CrR 3.5 Hearing
Plechner argues that the trial court erred when it concluded, "The statements made to Officer Campbell by the defendant . . . were made in a non-custodial, investigative stop and detention setting and will be admissible at trial herein." CP at 27. We disagree.
After hearing argument on whether Plechner initially advised Officer Campbell that he wanted to speak to his attorney, the trial court found that Plechner's testimony was inconsistent with Officer Campbell's testimony and the officer's radio transmissions. Finding Officer Campbell's testimony credible, the trial court announced, "I'm finding that the defendant did not ask for a lawyer at that point in time and is not credible on that, on that subject." 1 RP at 120. The trial court then concluded, "[T]here was a continued conversation with Officer Campbell that was non-custodial in nature at that point." 1 RP at 121.
D. Appearance of Fairness
Plechner essentially argues that the trial court was prejudiced. We disagree.
To begin with, we do not consider matters outside the record on appeal. RAP 9.2(b). If Plechner wishes us to consider matters outside the record, a personal restraint petition is the appropriate vehicle for bringing them before the court. State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995).
Nevertheless, we presume that a trial court properly discharged its official duties without bias or prejudice. In re Pers. Restraint of Davis, 152 Wn.2d 647, 692, 101 P.3d 1 (2004). Thus, a defendant claiming a violation of the appearance of fairness doctrine must make a threshold showing of a trial court's actual or potential bias. State v. Post, 118 Wn.2d 596, 619, 826 P.2d 172, 837 P.2d 599 (1992). And a defendant must provide specific facts supporting his allegation of bias. In re Davis, 152 Wn.2d at 692. But "[j]udicial rulings alone almost never constitute a valid showing of bias." In re Davis, 152 Wn.2d at 692.
Here, Plechner has not provided specific facts supporting his allegation of bias. While he points to testimony and judicial rulings, there is no evidence in the record that the trial court had a personal interest in the outcome of this case or was otherwise personally prejudiced against him. Thus, we find his argument without merit.
E. Ineffective Assistance of Counsel
Plechner argues that his attorney was deficient and incompetent.
Among other things, Plechner claims that his counsel: (1) forgot a question he was asking; (2) was medicated for attention deficit disorder; (3) only briefly consulted with him before trial; (4) told him that he was not entitled to a "Cadillac" defense; (5) was a "Yugo" defense; and (6) made a massive blunder, for which the State corrected him. SAG at 7.
We disagree.
Again, we do not consider matters outside the record on appeal. RAP 9.2(b); McFarland, 127 Wn.2d at 338.
Nevertheless, both the federal and state constitutions guarantee effective assistance of counsel. See U.S. Const. amend VI; Wash. Const. art. I, §§ 22. But to prove ineffective assistance of counsel, an appellant must show: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607 (2005) (citing State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996)); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987).
Here, the record does not show either that his counsel's performance was deficient or that the deficient performance prejudiced him. Thus, we find Plechner's argument without merit.
F. Jury Instruction 19
Plechner argues that jury instruction 19 was "unfair." SAG at 7-8. We do not consider this argument because "it does not inform the court of the nature and occurrence of alleged errors." RAP 10.10(c).
G. Sufficiency of the Evidence
Plechner appears to argue that "[t]here was never one scrap of evidence that I intended to, or intentionally took away" the vehicle or "that I intended or intentionally committed a hit and run, or any kind of assault." SAG at 9. We disagree.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt.
State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When a defendant challenges the sufficiency of the evidence, this court must draw all reasonable inferences from the evidence in favor of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn from it. State v. Theroff, 25 Wn. App. 590, 593, 608 P.2d 1254, aff'd, 95 Wn.2d 385 (1980). Credibility determinations are for the trier of fact and are not subject to review. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Thomas, 150 Wn.2d at 874-75 (citing State v. Cord, 103 Wn.2d 361, 367, 693 P.2d 81 (1985)).
Here, there were issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. But drawing all reasonable inferences from the evidence in favor of the State, we agree that the evidence was sufficient to convict Plechner of the charges of which he now complains.
H. Knowledge Instruction
Plechner argues that the trial court erred in giving the jury instruction that defined knowledge. He claims that the jury instructions were "flawed" and "highly prejudicial." SAG at 9. We disagree. The court took this instruction verbatim from 11 Washington Pattern Jury Instructions: Criminal 10.02, at 150 (2d ed. 1994). And in its current form, the "knowledge" instruction has repeatedly withstood constitutional challenges. State v. Vanoli, 86 Wn. App. 643, 937 P.2d 1166, review denied, 133 Wn.2d 1022 (1997).
I. Right to a Speedy Trial
Plechner argues that the trial court violated his right to a speedy trial when it dismissed his case without prejudice. But under CrR 3.3(e)(4), the time between the dismissal of a charge and the refiling of the same or related charge is excluded in computing the speedy trial period. And the dismissal of a charge cannot be improper merely because of its effect of delaying expiration of the speedy trial period.
Bible, 77 Wn. App. at 471.
Because the State had a sufficient reason under CrR 8.3(a), we hold that the trial court did not violate Plechner's right to a speedy trial when it dismissed the case without prejudice.
J. Possession Instruction
Plechner argues that the trial court erred in giving the "to convict" instruction for second degree taking a motor vehicle without permission because it failed to define "possession." SAG at 10. We disagree.
Generally, the requirements of constitutional due process are satisfied when the trial court: (1) has informed the jury of all the elements of an offense; and (2) has instructed the jury that unless each element is established beyond a reasonable doubt the defendant must be acquitted. State v. Scott, 110 Wn.2d 682, 690, 757 P.2d 492 (1988).
Here, possession is not one of the elements of second degree taking a motor vehicle without permission. Ownership, right to possession, or permission to use may be asserted as an affirmative defense, but the State needs to prove only that the vehicle belonged to another and that the defendant intentionally used it without permission. RCW 9A.56.075; State v. Hudson, 56 Wn. App. 490, 493-94, 784 P.2d 533, review denied, 114 Wn.2d 1016 (1990). Finally, nothing in our constitution, as interpreted by Washington courts, requires that "the meanings of particular terms used in an instruction be specifically defined."
Scott, 110 Wn.2d at 691.
Therefore, the trial court did not err.
K. "Mockery" of the Trial Court
Plechner argues, "The trial court was in error when it did not dismiss all charges when it found out that the Prosecutor and Otto [Holz] made a total mockery of the court." SAG at 11. According to Plechner, "The Prosecutor knowingly let Otto Holz, with four known D.U.I.S, drive through town, to testify against me." SAG at 12. We disagree.
Again, we do not consider matters outside the record on appeal. RAP 9.2(b); McFarland, 127 Wn.2d at 338.
And again, we presume that a trial court properly discharged its official duties without bias or prejudice. In re Davis, 152 Wn.2d at 692. Thus, a defendant claiming a violation of the appearance of fairness doctrine must make a threshold showing of a trial court's actual or potential bias. Post, 118 Wn.2d at 619. And a defendant must provide specific facts supporting his allegation of bias. In re Davis, 152 Wn.2d at 692. But "[j]udicial rulings alone almost never constitute a valid showing of bias." In re Davis, 152 Wn.2d at 692.
Because there is no evidence in the record that the trial court had a personal interest in the outcome of this case or was otherwise personally prejudiced against Plechner, we find his argument without merit.
Affirmed, but remanded for the trial court to clarify in the judgment and sentence the total amount of time, including community custody, for which Plechner is responsible.
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 pursuant to RCW 2.06.040, it is so ordered.
Bridgewater, P.J. We concur:
Armstrong, J.