Opinion
No. 60108-3-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 07-8-00425-6, LeRoy McCullough, J., entered May 2, 2007.
Affirmed by unpublished per curiam opinion.
S.T. appeals the juvenile court's final order finding her guilty of fourth degree assault. Because S.T. fails in her burden to show that trial counsel's allegedly deficient performance prejudiced the outcome of the hearing, we affirm.
S.T. and the complaining witness, E.W., both attended Juanita High School at the time of the incident. Both attended a school assembly held in the gymnasium on September 28, 2006. S.T. sat near the top of the bleachers and E.W. sat a few rows from the floor of the gym. When S.T. left the assembly, rather than using the stairs that ran directly from her seat to the floor, she walked down and across the bleachers until she was near E.W.
S.T. testified that her knees locked, causing her to lose her balance and stumble forward into E.W. S.T. also testified that she did not know who she stumbled into at the time.
S.T. pushed E.W. in the back, knocking her off balance and causing her to stumble but not fall. Although E.W. thought the push could have been accidental, when she turned to look, she saw S.T. close to her. She also observed that S.T. was laughing, and looking at her, and then S.T. turned to another person and said, "I pushed that bitch." E.W. concluded the push was not accidental and reported it to the principal.
Although she did not see the push, K.S., one of E.W.'s friends, saw S.T. near E.W. and also heard S.T.'s remark. K.S. gave a written statement to police and testified at the hearing.
S.T. denied the remark attributed to her. She also testified that shortly after the incident she spoke to her friend, K.C.
The State charged S.T. with fourth-degree assault for pushing E.W.
On May 2, 2007, following a fact-finding hearing, the juvenile court judge found S.T. guilty.
S.T. appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
S.T. argues that her trial counsel was ineffective. We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that her counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced her trial. The reasonableness inquiry presumes effective representation and requires the defendant to show the absence of legitimate strategic or tactical reasons for the challenged conduct. To show prejudice, the defendant must show that but for the deficient performance, there is a reasonable probability that the outcome would have been different. If one of the two prongs of the test is absent, we need not inquire further.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
McFarland, 127 Wn.2d at 336.
In re Personal Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166 P.3d 726, review denied, 162 Wn.2d 1007 (2007).
Here, S.T. argues that her counsel failed to secure two important defense witnesses who would have corroborated her version of events and buttressed her credibility. Specifically, S.T. argues that counsel's performance was deficient because counsel chose not to seek a material witness warrant for S.T.'s physician, Dr. Bartow. Similarly, counsel did not subpoena S.T.'s friend, K.C., to testify. S.T. claims there is a reasonable probability that the outcome of her hearing would have been different if they had testified.
Assuming without deciding that counsel's decisions constituted deficient performance, we conclude that these alleged errors did not prejudice S.T.
The juvenile court's unchallenged finding as to the disputed facts in the case states:
The testimony of [E.W.] and [K.S.] was credible and the testimony of the respondent as to how this incident was an accident was not credible.
Clerk's Papers at 29.
Unchallenged findings are verities on appeal. Determinations as to credibility are not subject to appellate review.
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
The court heard the testimony of the witnesses with the best personal knowledge of the events in question. The court expressly found that it believed the testimony of E.W. and K.S. It also expressly found that it disbelieved the testimony of S.T. These credibility determinations are dispositive on the question of prejudice.
The evidence that Dr. Bartow and K.C. might have given would not likely have changed the result, given the court's credibility determinations based on the witnesses before the court. In essence, S.T. speculates that the testimony of either or both would have changed the result at trial. On this record, we are not persuaded that the testimony of these witnesses would have changed the result at trial.
We affirm the order of disposition.