                                                                                                              C--     F-11- ED
                                                                                                               IuIT OF APPEA,,LS
                                                                                                         2014 FEB
                                                                                                         v                       g: 39
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN
                                                                                                                         SHIfiCI.
                                              DIVISION II
                                                                                                                        r'-
STATE OF WASHINGTON,                                                              No. 43878 -0 -II


                                  Respondent,                            UNPUBLISHED OPINION


         V.



FRED HENRY CARPENTER IV,




         BJORGEN, J. —     A jury returned verdicts finding Fred Henry Carpenter IV guilty of two

counts of second degree assault, two counts of felony harassment, one count of fourth degree

assault, and one count of obstruction of a law enforcement officer. The jury also returned special

verdicts finding that Carpenter' s crimes of second degree assault and felony harassment were
aggravated domestic violence offenses. Carpenter appeals his convictions of obstruction of a law

enforcement officer and felony harassment, asserting that the State' s information was defective

 1) for failing to allege as an element of obstruction of a law enforcement officer that he knew
that the law enforcement officer was discharging official duties at the time he committed the

offense and ( 2) for failing to allege as an element of felony harassment that he had expressed a
 true threat."


          In his statement of additional grounds for review, Carpenter appears to challenge all of

his convictions and his sentence, asserting that ( 1) his convictions for second degree assault and

         harassment              Amanda    Sreap   violated    his   right   to be free   from double jeopardy, ( 2)
felony                 against




his convictions for fourth degree assault and felony harassment against Kerrie Dolinski violated

                                                        his                   for two                        degree
his   right   to be free from double   jeopardy, ( 3)         convictions                 counts of second
No. 43878 -0 -II



assault against Sreap violated his right to be free from double jeopardy, (4) the trial court erred
                                               trial, ( 5)   the trial court imposed an improper exceptional
by admitting       certain evidence at




sentence, ( 6)     the prosecutor committed misconduct by leading a witness and by making an

improper closing        argument, (       7) the trial court erred by providing the jury with an incomplete jury

instruction, and ( 8) the trial court erred by not instructing the jury on the lesser -included offense

of third degree assault. Additionally, in his statement of additional grounds Carpenter contends

that his   counsel was. ineffective           for ( 9)     not   allowing him to        testify in his defense, ( 10) not making

an   opening   statement, ( 11)          failing    to   present a   defense, (   12) failing to present an intoxication

                                                                       investigation before trial, ( 14)    failing to pursue a
defense, ( 13)      failing to   conduct      any        research or




plea   deal   on   the last   day   of   trial, (   15) failing to inform him before trial about the possibility that

he   could receive an exceptional sentence, (                    16) inadequate        cross -examination of witnesses, (   17)


failing to    object   to the    admission of a recorded               911   call, (   18) requesting a high -
                                                                                                             end standard

range sentence, and ( 19) conceding the fact of guilt at sentencing. Finally, Carpenter raises a

number of issues in his statement of additional grounds that we cannot address in this appeal

because they either ask us to re -weigh the evidence and evaluate the credibility of witnesses or

refer to matters outside the trial record. Because the State' s charging documents were

 constitutionally sufficient and arguments in Carpenter' s statement lack merit, we affirm his
 convictions and sentence.




                                                                        0)
No. 43878 -0 -II


                                                                FACTS


         In June 2012, Carpenter was living with his ex- girlfriend, Dolinski, and her three children

at Dolinski' s home in Thurston County. Carpenter is the father of Dolinski' s oldest son, FC,

who was then 14 years old.'


         On June 9, 2012, Carpenter, Dolinski, and Carpenter' s girlfriend, Sreap, consumed two

bottles of liquor at Dolinski' s home. Later that evening, Carpenter and Sreap began arguing and

Dolinski saw Carpenter grab Sreap by her throat several times. On one occasion, Carpenter

grabbed Sreap' s throat, lifted her off the ground, and then threw her across a bed. Carpenter

started yelling at Dolinski to leave the room and continued to choke Sreap several more times.

After                          became       limp;   Carpenter             her   and said,, "[    Q] uit faking   it." Report of
        Sreap'   s   body                                       slapped




Proceedings ( RP)         at    52.      When Sreap tried to defend herself, Carpenter got her down on the floor

and grabbed her neck so she could neither breathe nor move. Then, as Carpenter started to leave

the   room,   he     said, "   I'   m   just going to kill you both. I'    m    going to    get a   knife." RP at 54. Dolinski


believed that Carpenter intended to                  retrieve a   knife   and   kill her   and   Sreap.   At some point,


Carpenter grabbed Dolinski by the neck and threw her against a wall.

         FC and his younger brother were in the home when this occurred. FC saw Carpenter

screaming at Sreap, and then saw Carpenter hit her across the face, lift her off the ground by her

throat, and throw her across a bed. He also saw Dolinski trying to stop Carpenter from choking

 Sreap. FC stated that he saw Carpenter choking Sreap at least five times that evening.




  We use the juvenile' s initials to protect his interest in privacy.




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No. 43878 -0 -II


        Dolinski' s brother, Brandon Stevens, arrived at Dolinski' s home that evening and saw

Carpenter choking Sreap. After pulling Carpenter away from Sreap and calming him down,

Stevens instructed his nephews to leave the house and go to his vehicle. When Stevens

returned to the room, he saw Carpenter on top of Sreap, choking her while she gasped for air.

Carpenter got off of Sreap after Stevens yelled at him. When Carpenter started " freaking out"

again, Stevens left the house out of fear for his nephews' safety and the safety of his two infant

children, who were waiting in the vehicle with their mother. RP at 95 -97. As the group drove

away from Dolinski' s house, FC called 911.

        Thurston County sheriff' s deputies Michael Brooks and Randy Hovda responded in full
police uniform and, once at the front door, heard arguing inside of Dolinski' s home. When.

Brooks and Hovda entered the home, they saw Carpenter, Dolinski, and Sreap walking toward

the front door. When Carpenter attempted to walk past Brooks, Brooks put his hand up and said,

 Hold   on a   second."   RP   at   193. Carpenter pushed Brooks' s chest and then started running.


Brooks deployed his Taser on Carpenter, but it did not subdue him; Carpenter yelled, went in the

master bedroom, and slammed the door shut.- After Brooks kicked the door down, both officers

unsuccessfully attempted to subdue Carpenter with their Tasers while he ran out of the house.
 The officers chased Carpenter around the home for about 50 -70 yards while instructing him to

 stop. When Carpenter tensed up like he was going to fight the officers, Brooks struck him three
 times with a baton. Hovda pepper sprayed Carpenter but he continued to refuse the officers'

 orders to lie on the ground. After a third officer arrived and pepper sprayed Carpenter, Brooks

 was able to handcuff him. After being handcuffed Carpenter continued to try to get up until a

 fourth officer tased him.




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No. 43878 -0 -II



         After detaining Carpenter and summoning medical aid, Brooks went in the home to speak

to Dolinski and Sreap. When speaking with Sreap, he noticed that she had a raspy voice and

redness on her neck; Sreap told Brooks that her neck hurt and that she was having trouble

swallowing. Sreap was transported to a hospital where Brooks later took a taped statement from

her. In her taped statement, Sreap told Brooks that Carpenter had strangled her and that she had

trouble breathing while he was strangling her.

         On June 13, 2012, the State charged Carpenter with two counts of second degree assault


and one count of felony harassment for his conduct against Sreap, with each charge alleging a

domestic      violence   aggravating factor. 2         The State also charged Carpenter with a second count of

felony harassment and one count of fourth degree assault for his conduct against Dolinski, with

the   felony   harassment    charge   alleging     a   domestic. violence aggravating factor.   Additionally, the

State charged Carpenter with obstructing a law enforcement officer. The State' s information for

obstructing a law enforcement officer stated:

         In that the defendant, FRED HENRY CARPENTER, IV, State of Washington, on
         or    about     June   9,   2012;   did       willfully   hinder,   delay, or obstruct any law
         enforcement officer in the discharge of his or her official powers or duties.

Clerk' s Papers ( CP) at 5, 20.


         The State' s information for felony harassment against Dolins0 stated:




2 On August 21, 2012, the State filed an amended information to correct a misspelling in Sreap' s
middle name. Apart from the correction of Sreap' s middle name, the State' s June 13 information
and August 21 amended information are identical.


3 Apart from replacing Dolinski' s name with Sreap' s name, the State' s information for felony
harassment against Sreap mirrors the language of the information for felony harassment against
Dolinski.




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No. 43878 -0 -II



        In that the     defendant,   FRED   HENRY       CARPENTER, IV,       in the   State   of
        Washington, on or about June 9, 2012, without lawful authority, knowingly
        threatened to kill Kerrie M. Dolinski, a family or household member, pursuant to
        RCW 10. 99. 020, and the defendant' s words or conduct placed Kerrie M. Dolinski
        in reasonable fear that the threat would be carried out. It is further alleged that the
        current offense involved Domestic Violence as defined in RCW 10. 99. 020 and
        the offense occurred within sight or sound of the victim' s or the offender' s minor
        children under the age of eighteen years.


CP at 5, 20.


        At trial, Sreap testified that she did not remember getting into any argument with

Carpenter, did not remember telling Brooks that Carpenter had strangled her and, although she

remembered giving a taped statement, she was still in shock and was intoxicated when she gave

the statement. When the State confronted Sreap with a specific statement that she had provided

to Brooks in her taped statement, Carpenter objected on the basis of leading the witness. After

the trial court overruled the objection, the State continued to ask Sreap about specific statements

that she had given to Brooks, but Sreap stated that she could not remember giving any of those

statements. Carpenter again objected and the trial court held a sidebar conference off the record


and outside the presence of the jury, at which the trial court overruled Carpenter' s objection.

The trial court later put on the record its reasons for overruling Carpenter' s objection, stating:

        Counsel, at the last session there was a side bar conference following [ defense
        counsel' s]  objections to questions about statements allegedly made by the
        witness.    At side bar I inquired of the deputy prosecuting attorney whether she
        intended to have one of the investigating deputies testify that the witness did
        make those statements. The deputy prosecutor answered " yes."
                   I indicated that I would sustain the objection to any question that the
        plaintiff could not    bring in a — where the plaintiff could not bring in a deputy to
        testify about the statement but that I would overrule the objection as to all such
        statements in order to permit the Plaintiff to lay a foundation for asking the
        deputies statements made by the witness which might otherwise be hearsay. I was
        assured that the plaintiff would only ask those questions.




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No. 43878 -0 -II



RP at 136. The State later called Brooks to testify about the statements that Sreap provided in

her taped statement. The trial court admitted a transcript of Sreap' s taped statement over defense

objection. The trial court also admitted, without objection, a recording of FC' s 911 call. The

recording was played to the jury without objection.

        After the State rested, Carpenter' s defense counsel declined to present any evidence. The

trial court instructed the jury on fourth degree assault as a lesser -included offense to Carpenter' s

second degree assault charges. The jury found Carpenter guilty of two counts of second degree

assault, two counts of felony harassment, one count of fourth degree assault, and one count of

obstruction of a law enforcement officer. The jury also found domestic violence aggravating

factors with regard to Carpenter' s second degree assault and felony harassment offenses.

Carpenter timely appeals.

                                              ANALYSIS


           I. THE INFORMATION' S CHARGE OF OBSTRUCTING A LAW ENFORCEMENT OFFICER

           Carpenter first contends that the State' s information charging him with obstructing a law

enforcement officer was constitutionally deficient because it failed to allege as an essential
element that he had knowledge that the law enforcement officer was discharging official duties at

the time he committed the offense. We.hold that the State' s information fairly implied all the

essential elements to Carpenter' s charge of obstructing a law enforcement officer and that

Carpenter neither alleged nor showed any prejudice from any inartful language contained in the

 State' s information. Accordingly, we hold that the State' s charging document was

 constitutionally sufficient with regard to Carpenter' s obstructing a law enforcement officer

 charge.




                                                    VA
No. 43878 -0 -II



        Both the United States Constitution and the Washington State Constitution require that

the State plead in its information all essential elements, whether statutory or nonstatutory, of the

crimes charged.     State     v.   Allen, 176 Wn.2d 611, 627         n. 10,   294 P. 3d 679 ( 2013).           Where, as here,


a criminal defendant challenges the sufficiency of a charging document for the first time on

appeal, we construe the documents liberally in favor of validity. State v. Kjorsvik, 117 Wn.2d .

93, 105, 812 P. 2d 86 ( 1991).          Liberal   construction "`    permits us to fairly infer the apparent

missing   element   from the charging document' s language. "' State v. Zillyette, 178 Wn.2d 153,


161, 307 P. 3d 712 ( 2013) (         quoting State v. Goodman 150 Wn.2d 774 788, 83 P. 3d 410 ( 2004)).

In liberally construing the information we apply the following two -part test:

         1) do the necessary facts appear in any form, or by fair construction can they be
        found, in the charging document; and, if so [ and if the language in the charging
        document is      vague], (      2) can the defendant show that he or she was nonetheless
          actually prejudiced by the inartful language which caused a lack of notice?

Kjorsvik, 117 Wn.2d           at   105 -06.   The first prong of this test rests solely on the language on the

face of the charging document. Kjorsvik, 117 Wn.2d at 105 -06. We read the charging document

 as a whole,    according to         common sense and        including facts         that   are   implied."     State v. Nonog,

 169 Wn.2d 220, 227, 237 P. 3d 250 ( 2010).              The second prong allows us to consider whether the

defendant     received    actual      notice.     Kjorsvik, 117 Wn.2d           at    106.        In evaluating whether the

defendant     suffered prejudice, we                consider   the   certificate of probable cause.               See Kjorsvik,
                                              may


 117 Wn.2d at 111.


          The statute defining the crime of obstructing a law enforcement officer, RCW 9A.76. 020,

provides, "   A person is guilty of obstructing a law enforcement officer if the person willfully

 hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official

 powers or    duties."   In   addition    to the statutory   elements of       obstructing        a   law   enforcement officer,
No. 43878 -0 -II



the State must prove beyond a reasonable doubt that the accused knew the law enforcement

officer was discharging official powers or duties at the time of the offense. State v. Contreras,

92 Wn.    App.     307, 315 -16, 966 P. 2d 915 ( 1998). Thus, knowledge of this fact is also an essential


element that must be alleged by fair construction in the charging document.

          Here, the State' s information mirrored the language of RCW 9A.76. 020, alleging that

Carpenter " willfully" obstructed an officer in the performance of official duties. The issue is

whether the statutory term " willfully" fairly implies an allegation that the defendant knew the

law enforcement officer was discharging official powers or duties at the time, as required by

Contreras.


          RCW 9A.08. 010 does              not contain a      definition for " willfully," but instead provides:


           4) Requirement          of   Wil[ l]fulness Satisfied          by Acting Knowingly.       A requirement

          that an offense be committed wil[ l] fully is satisfied if a person acts knowingly
          with respect to the material_elements of the offense, unless a purpose to impose
          further requirements plainly appears.

Our question, though, is the converse: whether a requirement of knowledge is satisfied by acting

willfully. As a matter of logic, the converse of a true statement is not itself necessarily true.
          The information,          again, alleged      that Carpenter "       did willfully ...   obstruct any law

enforcement officer         in the discharge       of   his   or   her    official powers or   duties."   CP at 5, 20.


 One could willfully obstruct an individual without knowing he or she was an officer

 carrying    out    official     duties.    It would be difficult to say, though, that one willfully

 obstructed an officer in the discharge of official duties if one had no knowledge that the

 person    was     either   an    officer   or   carrying      out    official   duties.   Thus, engaging in the

 required liberal construction, we hold that the knowledge required by Contreras is fairly

 implied    by the   allegation      in the charging document that he " did willfully ... obstruct any



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No. 43878 -0 -II



law   enforcement officer   in the discharge    of   his   or   her   official powers or   duties."   It would


have been far better practice, though, to include an explicit allegation of knowledge in the

document.


         Turning to the prejudice prong, Carpenter does not contend that any inartful language in

the State' s information caused him to lack actual notice of the essential elements of obstruction


of a law enforcement officer. Therefore, he has failed to allege, much less show, that he suffered

actual prejudice from the inartful language. Accordingly, Carpenter fails to demonstrate any

prejudice resulting from the State' s information charging him with obstruction of a law

enforcement officer.




         A liberal reading of the State' s charging document informed Carpenter of the essential

elements of obstruction of a law enforcement officer. Further, he does not claim any prejudice

from the absence of an express allegation of knowledge in the charging document. For each

reason, he fails to show that the charging document was constitutionally insufficient on this

ground.



                      11. THE INFORMATION' S CHARGE OF FELONY HARASSMENT


          Carpenter next contends that the State' s information charging him with two counts of

felony harassment was constitutionally deficient for failing to allege as an essential element that

he had   expressed a "   true threat."   Because the " true threat" requirement is not an essential


 element of the felony harassment statute and need not be included in the State' s charging

 documents, we disagree.


          In First Amendment law, a " true threat" is


           a statement made in a context or under such circumstances wherein a reasonable
          person would     foresee that the    statement would            be interpreted ...     as   a   serious




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No. 43878 -0 -II



           expression of intention to inflict bodily harm upon or to take the life of another
           person."




Allen, 176 Wn.2d at 626 ( quoting State v. Kilburn, 151 Wn.2d 36, 43, 84 P. 3d 1215 ( 2004))

 alteration    in   original).      First Amendment free speech protections do not extend to " true threats."

Allen, 176 Wn.2d at 626.


           Carpenter argues that we should reverse his felony harassment convictions because the

 true threat" requirement is an essential element of that crime and the State failed to allege it in

its charging documents. However, our Supreme Court recently rejected this argument, holding

that, "[   w] e have never held the true threat requirement to be an essential element of a harassment

statute."    Allen, 176 Wn.2d at 628. The Allen court clarified the scope of the " true threat"


requirement,        stating, ( 1) "`     the constitutional concept of `true threat' merely defines and limits the

scope of     the essential threat          element     in the   felony ... harassment statute and is not itself an

essential element of          the      crime "'; (   2) because the " true threat" requirement is merely definitional

and is not an essential element of the crime, it is not an " error" if the true threat requirement is

not   included in the charging documents                   or   in the " to   convict"   instructions;   and ( 3)   "   so long as the

jury [is] instructed as to the true threat requirement, the defendant' s First Amendment rights [ are]

protected."     Allen, 176 Wn.2d at 628 -30 ( quoting State v. Tellez, 141 Wn. App. 479, 484, 170

P. 3d 75 ( 2007)).


            Allen controls our decision. As in Allen, the State' s charging documents did not allege

that the defendant' s statements were true threats. However, the trial court here provided the jury

with an instruction that explained the " true threat" requirement, which instruction was identical

to the instruction that our Supreme Court had approved in Allen. This instruction stated in part:




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No. 43878 -0 -II



          t]o be a threat, a statement or act must occur in a context or under such
         circumstances where a reasonable person, in the position of the speaker, would
         foresee that the statement or act would be interpreted as a serious expression of
         intention to carry out the threat rather than as something said in jest or idle talk.

CP at 39; see Allen, 176 Wn.2d at 628.


         Just as this language in the jury instructions protected Allen' s First Amendment rights, it

also protected Carpenter' s First Amendment rights. Because the " true threat" requirement is not


an essential element of felony harassment, we hold that the State' s charging documents were not

constitutionally deficient for failing to allege it.

                         III. STATEMENT OF ADDITIONAL GROUNDS ( SAG) ISSUES


A.       Double Jeopardy

         In his SAG, Carpenter first asserts that some of his convictions violate the constitutional

prohibition against double jeopardy. We disagree.

         Whether Carpenter' s convictions violate double jeopardy is a question of law that we

review   de   novo.   State    v.   Womac, 160 Wn.2d 643, 649, 160 P. 3d 40 ( 2007). Both our federal


and state constitutions prohibit "`         being ( 1) prosecuted a second time for the same offense after

acquittal, (   2) prosecuted a second time for the same offense after conviction, and ( 3) punished

multiple   times   for the    same offense. "'    State v. Turner, 169 Wn.2d 448, 454, 238 P. 3d 461

 2010) ( quoting State        v.   Linton, 156 Wn.2d 777, 783, 132 P. 3d 127 ( 2006)); U. S. CoNST. amend.


V; WASH. CONST.        art.   I, §   9. Carpenter' s arguments on appeal implicate the third prohibition, in

that he contends the trial court punished him multiple times for the same offense.


         When analyzing a double jeopardy claim, we ask whether the legislature intended the

charged crimes to constitute the same offense. State v. Freeman, 153 Wn.2d 765, 771, 108 P. 3d

753 ( 2005).     Freeman       sets out a        part framework for analyzing these
                                            four -                                    claims.   153 Wn.2d at




                                                          12
No. 43878 -0 -II


771 -73.        First, we look to express or implicit legislative intent to punish the crimes separately; if

legislative intent is       clear, we   look   no   further. Freeman, 153 Wn.2d        at   771 -72. Second, if the


legislature has not clearly stated its intent, we may apply the " same evidence" test to the charged
                4
offenses.           Freeman, 153 Wn.2d at 772. Third, we may use the merger doctrine to discern

legislative intent. Freeman, 153 Wn.2d                at   772 -73.   Finally, if the two offenses appear to be the

same but each one has an independent purpose or effect, then the two offenses may be punished

separately. Freeman, 153 Wn.2d at 773.

           1.       Felony Harassment and Second Degree Assault

           Carpenter contends that he was unlawfully placed in double jeopardy when the jury

convicted him of both felony harassment and second degree assault against Sreap, because the

felony harassment conviction was incidental to the second degree assault conviction. We

disagree. The felony harassment statute, RCW 9A.46. 020, provides in relevant part:

            1) A person is guilty of harassment if:
            a) Without lawful authority, the person knowingly threatens:
            i) To cause bodily injury immediately or in the future to the person threatened or
           to any other person;

            b) The person by words or conduct places the person threatened in reasonable
           fear that the threat will be carried out.


                 b) A person who harasses another is guilty of a class C felony if any of the
                2] (
           following apply:.. . ( ii) the person harasses another person under subsection
            1)( a)( i) of this section by threatening to kill the person threatened or any other
           person.




           The second degree assault statute, RCW 9A.36. 021, provides in relevant part:



4 Washington' s " same evidence" test is sometimes referred to as the " same elements" test or " the
Blockburger" test. Freeman, 153 Wn.2d at 772 ( citing Blockburger v. United States, 284 U. S.
299, 304, 52 S. Ct. 180, 76 L. Ed. 306 ( 1932)).




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No. 43878 -0 -II



         1)  A person is guilty of assault in the second degree if he or she, under
        circumstances not amounting to assault in the first degree:

         g) Assaults another by strangulation or suffocation.

        Because the felony harassment and second degree assault statutes do not clearly disclose
whether separate' punishments are authorized for the same conduct, we turn to the same evidence


test to determine whether Carpenter' s convictions violated the constitutional prohibition against


double jeopardy. See, e.g., State v. Leming, 133 Wn. App. 875, 888, 138 P. 3d 1095 ( 2006).

Under the same evidence test, if each offense contains an element not contained in the other

offense, the offenses are different for double jeopardy purposes. State v. Jackman, 156 Wn.2d

736, 747, 132 P. 3d 136 ( 2006). The    same evidence        test   requires   that   we   determine "`   whether




each provision requires proof of a    fact   which   the   other   does   not. "'   State v. Baldwin, 150 Wn.2d


448, 455, 78 P. 3d 1005 ( 2003) (   quoting Blockburger, 284 U.S. at 304).

        To prove felony harassment against Sreap as charged, the State had to prove beyond a

reasonable doubt that Carpenter ( 1) without lawful authority (2) knowingly threatened to kill

Sreap and ( 3) by his words or conduct, placed Sreap in reasonable fear that his threat would be
carried out.   RCW 9A.46. 020( 2)( b)( ii). In contrast, to prove second degree assault as charged,


the State had to prove beyond a reasonable doubt that Carpenter assaulted Sreap by suffocation

or strangulation.   RCW 9A.36. 021( 1)( g).     Each crime required proof of a fact that the other did

not.   Therefore, under the same evidence test Carpenter' s convictions for felony harassment and

 second degree assault did not offend the prohibition against double jeopardy.

         2. Felony Harassment and Fourth Degree Assault

        Next, Carpenter asserts that his convictions for fourth degree assault and felony

 harassment against Dolinski violate the prohibition against double jeopardy. Again, we disagree.


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No. 43878 -0 -II



In contrast with evidence of Carpenter' s threat to kill, as required to prove his felony harassment

charge, to prove fourth degree assault the State was required to prove only that Carpenter had

assaulted Dolinski. RCW 9A.36. 040. Accordingly, under the same evidence test, Carpenter has

failed to demonstrate that his fourth degree assault and felony harassment convictions against

Dolinski violated the constitutional prohibition against double jeopardy.

        Carpenter also appears to argue that the trial court erred by failing to treat his fourth

degree assault and felony harassment convictions as the same criminal conduct for sentencing

purposes. We disagree. We review for an abuse of discretion a trial court' s finding that offenses

did not constitute the same criminal conduct. State v. Maxfield, 125 Wn.2d 378, 402, 886 P. 2d

123 ( 1994).   To constitute the same criminal conduct, Carpenter' s offenses must have had the

same criminal intent, been committed at the same time and place, and involve the same victim.

State v. Davis, 174 Wn. App. 623, 641, 300 P. 3d 465, review denied, 178 Wn.2d 1012 ( 2013).

Here, Carpenter' s convictions for fourth degree assault and felony harassment against Dolinski

did not involve the same criminal intent and, thus, the trial court did not abuse its discretion by

counting each crime separately for sentencing purposes. To convict Carpenter for felony -
harassment, the State was required to prove that he knowingly threatened to kill Dolinski

whereas, to convict Carpenter for fourth degree assault, the State was required to prove that he

 intended to   assault her. RCW 9A.46. 020( 2)( b)( ii); RCW 9A.36. 040; see, e. g., State v. Davis,

 119 Wn.2d 657, 662, 835 P. 2d 1039 ( 1992) ( crime of fourth degree assault contained court-


 implied   element of   intent).   Accordingly, the trial court properly treated Carpenter' s convictions

 for fourth degree assault and felony harassment against Dolinski separately for sentencing

 purposes.




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No. 43878 -0 -II



           3.   Second Degree Assault


           Carpenter next asserts that the State violated his right to be free from double jeopardy by

charging him with multiple counts of second degree assault, which the trial court later found to

constitute the same criminal conduct. But Carpenter misconstrues the constitutional prohibition


against double jeopardy as it neither bars the State from bringing, nor bars the jury from

considering, " multiple        charges arising from the same criminal conduct in a single proceeding."

Freeman, 153 Wn.2d            at   770 -71.   Accordingly, he cannot demonstrate that the State violated the

prohibition against double jeopardy by charging him with multiple counts of second degree

assault.



B.         Evidentiary        ulings




           Next, Carpenter appears to challenge two of the trial court' s evidentiary rulings, but his

briefing on these alleged errors is insufficient to merit judicial review. First, Carpenter asserts

that the trial court improperly admitted evidence when it overruled his objection based on the

State leading a witness. Although, Carpenter recites in his SAG brief a portion of the trial record

showing that the trial court had overruled his objection based on leading the witness, he fails to

explain how the trial court' s ruling was in error. Accordingly, his brief fails to inform us of the
                                                                                                          5
nature of       his   alleged error and,   thus,   we   do   not consider   it further. RAP 10. 10( c).


           Carpenter also asserts that the trial court improperly admitted evidence when it allowed

Brooks to refer to a transcript of Sreap' s taped statements during his testimony to impeach


5
    Although RAP 10. 10 does not require Carpenter to refer to the record or to cite to applicable
authority in his SAG, he is required to inform us of the " nature and occurrence of alleged errors."
RAP 10. 10( c).




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No. 43878 -0 -II


                                  6
Sreap'   s earlier   testimony.        Again, Carpenter' s brief fails to explain how the trial court erred in

this regard and, accordingly, we do not address the issue further. RAP 10. 10( c).

C.        Exceptional Sentence


          Next, Carpenter asserts that the trial court erred by imposing an exceptional sentence.

Specifically, he appears to argue that sufficient evidence did not support the jury finding that he
committed his offenses within the sight or sound of the defendant' s minor child.

          As noted, there was ample evidence of this nature showing that FC saw Carpenter

screaming at Sreap, hitting her across the face, lifting her off the ground by her throat, and

throwing her across a bed. FC stated that he saw Carpenter choking Sreap at least five times that

evening. Accordingly, Carpenter fails to show that the trial court erred by imposing a sentencing
aggravator on this basis.


D.        Prosecutorial Misconduct


          Next, Carpenter asserts that the prosecutor committed misconduct by leading a witness

and by making an improper argument at closing. We disagree.

          A defendant claiming prosecutorial misconduct must show both improper conduct and

resulting   prejudice.    State       v.   Fisher, 165 Wn.2d 727, 747, 202 P. 3d 937 ( 2009). Prejudice exists


when there is a substantial likelihood that the misconduct affected the verdict. State v.

McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221 ( 2006). Because Carpenter did not object on the




 6 Moreover, contrary to Carpenter' s assertion in his SAG, he did not object to Brooks referencing
 the transcript of Sreap' s taped statement during his testimony. Instead, he objected to the
 admission of the taped statement transcript, arguing that Brooks' s testimony had been sufficient
 to impeach Sreap. Because Carpenter did not object to the testimony that he now complains of
 on appeal and does not assert that the alleged error was a " manifest error affecting a
 constitutional right,"    we also decline to address this issue under RAP 2. 5( a).




                                                              17
No. 43878 -0 -II



basis of prosecutorial misconduct below, we must ascertain whether the prosecutor' s misconduct

was " so flagrant or ill- intentioned" that it caused an " enduring and resulting prejudice" incurable

by a jury   instruction. State       v.   Stenson, 132 Wn. 2d 668, 719, 940 P. 2d 1239 ( 1997). Under this


heightened      standard of review,        Carpenter has the burden to        show   that "( 1) `   no curative




instruction would have obviated any prejudicial effect on the jury' and ( 2) the misconduct

resulted   in   prejudice   that ` had    a substantial   likelihood   of   affecting the   jury    verdict. "'   State v.


Emery,     174 Wn.2d 741, 761, 278 P. 3d 653 ( 2012) ( quoting                State v. Thorgerson, 172 Wn.2d 438,

455, 258 P. 3d 43 ( 2011)).


          In analyzing a prosecutorial misconduct claim, we " focus less on whether the

prosecutor' s misconduct was flagrant and ill- intentioned and more on whether the resulting

prejudice could      have been       cured."   Emery,     174 Wn. 2d   at   762. "` The criterion always is, has such


a feeling of prejudice been engendered or located in the minds of the jury as to prevent a

 defendant] from      having     a   fair trial ? "' Emery,    174 Wn.2d at 762 ( quoting Slattery v. City of

Seattle, 169 Wash. 144, 148, 13 P. 2d 464 ( 1932).


           Carpenter fails to meet his burden of establishing prosecutorial misconduct. With regard

to his claim that the prosecutor committed misconduct by improperly leading a witness,

Carpenter does not demonstrate that the prosecutor acted improperly. Rather, the trial record

 shows that the prosecution was laying a foundation to admit prior inconsistent statements of the

witness, Sreap, after she testified that she did not recall stating that Carpenter had strangled her
                                that her            had been           ER 801( d)( 1).      Because Carpenter fails to
 during   an argument and                    neck              sore.




 demonstrate that the prosecutor acted improperly when it questioned Sreap about her prior

 inconsistent statements, we hold that he fails to show prosecutorial misconduct on this ground.




                                                                18
No. 43878 -0 -II



        Carpenter similarly fails to show any improper conduct with regard to his claim that the

prosecutor committed misconduct at closing. Carpenter asserts that the prosecutor committed

misconduct at closing by referring to FC' s 911 call without pointing out to the jury that other

voices could be heard in the background of the taped recording. However, we can discern no

improper conduct from the prosecution' s decision to highlight in this manner certain portions of

the evidence presented at trial over other portions of the evidence. Accordingly, we hold that

Carpenter has failed to establish prosecutorial misconduct on this ground.


E.      Jury Instructions
           T

        Next, Carpenter contends that the trial court erred by providing the jury with an

incomplete instruction defining " assault" because the instruction did not include the term

 without   lawful authority." However, Carpenter did not object to the trial court' s instruction


below and does not claim on appeal that the alleged error was a manifest error affecting a


constitutional right. Accordingly, we decline to address this issue for the first time on appeal
under RAP 2. 5( a).


        Carpenter also contends that the trial court erred by failing to instruct the jury on third

degree assault as a lesser included offense to second degree assault. Again, Carpenter raises this

claim for the. first time on appeal. Again, the claimed error, a trial court' s failure to instruct on a

lesser included offense, is not a manifest error affecting a constitutional right. State v. O' Hara,

 167 Wn.2d 91, 101, 217 P. 3d 756 ( 2009).    Accordingly, we decline to address this issue for the

 first time on appeal under RAP 2. 5( a).


         Moreover, even if this claim were properly before us, it lacks merit. Jury instructions are

 sufficient if they allow the parties to argue their theory of the case and, when read as a whole,



                                                   19
No. 43878 -0 -II



properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 909, 976 P. 2d 624
 1999). "   A lesser included offense instruction is proper only if each element of the lesser offense

is necessarily included in the charged offense and `there is sufficient evidence to support an

inference that the lesser    crime was committed.'"           State v. Charles, 126 Wn.2d 353, 355, 894 P. 2d

558 ( 1995) ( quoting State     v.   Speece, 115 Wn.2d 360, 362, 798 P. 2d 294 ( 1990)).                 Here, sufficient


evidence does not support an inference that Carpenter committed third degree assault. The third

degree   assault statute,   former RCW 9A.3 6. 03 1 ( 1)( b)-(     c), ( e), (   g), ( i) -( ( 2011),
                                                                                           j)           criminalizes




assault committed against certain individuals while performing official duties, such as transit

operators, school bus drivers, firefighters, law enforcement officers, health care providers, and

judicial officers. There was no evidence presented at trial that Carpenter had committed assault

against any of these classes of individuals while performing his or her official duties. In
addition, the third degree statute criminalizes other forms of assault not present in Carpenter' s

case.   See RCW 9A.36. 031( 1)(         a), (   d), ( f), ( ( k). Because sufficient evidence did not support
                                                          h),


the trial court instructing the jury on third degree assault as a lesser included offense to second

degree assaults Carpenter' s claim fails.

F.       Ineffective Assistance of Counsel


         Next, Carpenter raises in his SAG several claims of ineffective assistance of counsel. We

 review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126 Wn. App. 297,

 319, 106 P. 3d 782 ( 2005).         To prevail on an ineffective assistance of counsel claim, Carpenter

 must show both that ( 1) counsel' s performance was deficient and ( 2) the deficient performance

 prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674

  1984); State   v.   Brockob; 159 Wn.2d 311, 344 -45, 150 P. 3d 59 ( 2006). Performance is deficient




                                                             20
No. 43878 -0 -II



if, after considering all the circumstances, it falls below an objective standard of reasonableness.

State   v.   McFarland, 127 Wn.2d 322, 334 -35, 899 P. 2d 1251 ( 1995).       Prejudice results if the


outcome of the trial would have been different had defense counsel not rendered deficient

performance. McFarland, 127 Wn.2d at 337. We strongly presume that counsel is effective and

the defendant must show the absence of any legitimate strategic or tactical reason supporting

defense counsel' s actions. McFarland, 127 Wn.2d at 337. To rebut this presumption, the


defendant bears the heavy burden of "establishing the absence of any ` conceivable legitimate
tactic explaining       counsel' s performance. "'   State v. Grier, 171 Wn.2d 17, 42, 246 P. 3d 1260


 2011) (     quoting State v. Reichenbach, 153 Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).

             1.   Refusal to Allow Carpenter to Testify in His Defense

             Carpenter first asserts that his counsel was ineffective for refusing to call him as a

witness to testify in his defense. There is no support in the record, however, that defense counsel
refused, against Carpenter' s wishes, to call him as a defense witness. We cannot address on

direct appeal allegations that refer to matters outside the record on review. McFarland, 127

Wn.2d at 335 ( where ineffective assistance of counsel claim is brought on direct appeal,

reviewing court will not consider matters outside the record; a personal restraint petition is the

appropriate means of having the reviewing court consider matters outside the record).

Accordingly, we do not further address this issue.

             2.   Failure to Give Opening Statement

             Next, Carpenter asserts that defense counsel was ineffective for failing to give an opening

 statement to the jury. Defense counsel' s decision to forgo giving an opening statement, though,

 appears to be a legitimate tactical decision and, therefore, cannot form the basis for an ineffective



                                                         21
No. 43878 -0 -II



assistance of counsel claim. McFarland, 127 Wn.2d at 336. Accordingly, Carpenter fails to

show ineffective assistance on this ground.


         3. Failure to Present a Defense


         Next, Carpenter asserts that his counsel was ineffective for failing to present any defense

at trial. Although defense counsel did not present any evidence, the record shows that counsel

cross -examined all but one of the State' s witnesses and that counsel made a closing argument.

More importantly, Carpenter does not point to any specific witnesses or documentary evidence

that his defense counsel should have presented at trial and, thus, he cannot show any prejudice

from his counsel' s decision to rest at the close of the State' s case.

         Moreover, it appears that defense counsel made a tactical decision to base its case on the

State' s inability to carry its burden of proving all charged crimes beyond a reasonable doubt.

Thus, defense counsel had no duty to introduce evidence of Carpenter' s innocence, since he

already benefitted from that fundamental presumption. See State v. Crediford, 130 Wn.2d 747,

759, 927 P. 2d 1129 ( 1996).       Such tactical decisions cannot form the basis for an ineffective


assistance of counsel claim. McFarland, 127 Wn:2d at 336. Accordingly, Carpenter fails to

show ineffective assistance on this ground.


         4. Failure to Present Intoxication Defense


         Next, Carpenter asserts that his counsel was ineffective for failing to present an

intoxication defense. We disagree. To be entitled to a voluntary intoxication jury instruction,

Carpenter must present evidence that the drinking affected his ability to form a requisite mental

state.   State   v.   Everybodytalksabout, 145 Wn.2d 456, 479, 39 P. 3d 294 ( 2004). The evidence


 must reasonably and logically connect the defendant' s intoxication with the asserted inability to



                                                      22
No. 43878- 0- 11



form the   required      level   of   culpability to    commit    the   crime charged."    State v. Gabryschak, 83


Wn.   App.   249, 252 -53, 921 P. 2d 549 ( 1996).               Evidence of drinking, standing alone, is

insufficient to warrant the giving of a voluntary intoxication jury instruction; there must be

substantial evidence of the alcohol' s effect on the defendant' s mind and body. Gabryschak, 83

Wn.   App.   at   253;   see also     State   v.   Finley, 97   Wn.   App.   129, 135, 982 P. 2d 681 ( 1999) ( "[ T] he


court is required to give a voluntary intoxication instruction only in those cases in which the

level of mental impairment caused by alcohol or drugs clearly affected the defendant' s criminal

responsibility by eliminating the necessary mens rea. ").

        On this record, Carpenter cannot show that his counsel was ineffective for failing to

request a voluntary intoxication instruction. The evidence, while showing that Carpenter had

been drinking on the day he committed his offenses, did not show that his drinking impaired his

mind and body to the point that it negated the required mens. rea to support his convictions.

Further, to the extent that Carpenter is arguing that his defense counsel failed to present evidence

to support the giving of the instruction, this concerns matters outside the record, which we

cannot address in his direct appeal. Accordingly, Carpenter fails to establish ineffective

assistance on this ground.


        5. Failure to Investigate /Failure to Pursue Plea Deal / ailure to Inform about Exceptional
                                                               F

 Sentence


        Next, Carpenter asserts that his counsel was ineffective for failing to investigate his case

before trial, for failing to pursue a plea deal on the last day of trial, and failing to inform him

before trial about the possibility of an exceptional sentence. However, there is no evidence in the




                                                                  23
No. 43878 -0 -II



record to support any of these assertions, and we do not address matters outside the record on

direct review. McFarland, 127 Wn.2d at 335.


        6. Inadequate Cross -Examination


        Next, Carpenter asserts that his trial counsel was ineffective for failing to adequately

cross -examine witnesses.   Specifically, Carpenter argues that he presented defense counsel with

proof that witnesses were lying on the stand, but that defense counsel declined to confront

witnesses in the manner that Carpenter suggested. But the manner in which defense counsel

cross -examines witnesses is generally a matter ofjudgment and strategy that cannot support the

basis for an ineffective assistance of counsel claim. In re Pers. Restraint ofDavis, 152 Wn.2d

647, 720, 101 P. 3d 1 ( 2004); State   v.   Lord, 117 Wn.2d 829, 883, 822 P. 2d 177 ( 1991).   Here,


Carpenter fails to establish that defense counsel' s strategy with regard to cross examination of

witnesses was illegitimate and, thus, he cannot show ineffective assistance on this ground.


        7. Failure to Object to Admission of 911 Recording

        Next, Carpenter asserts that his counsel was ineffective for failing to object to the

admission of the 911 recording. Carpenter, though, fails to explain on what ground such an

objection could have been sustained. Accordingly, he fails to show prejudice resulting from

counsel' s failure to object to the tape' s admission.


        8. Request for High -
                            End Standard Range Sentence

        Next, Carpenter asserts that his defense counsel was ineffective for requesting a high -end

standard range sentence of 80 months of incarceration. Again, defense counsel' s decision in this

regard appears to be tactical as the State was requesting a 119 -month exceptional sentence.

Accordingly, Carpenter fails to establish ineffective assistance on this ground.



                                                      24
No. 43878 -0 -II



            9. Concession at Sentencing

            Finally, Carpenter asserts that his counsel was ineffective for conceding guilt at

sentencing. Carpenter' s guilt, however, was established beyond a reasonable doubt by the jury

following trial. Accordingly, Carpenter can neither establish deficient performance nor resulting

prejudice from defense counsel' s conceding his guilt at sentencing. Thus, he fails to establish

ineffective assistance on this ground.


G.          Remaining Issues
                       ssues


            We cannot address Carpenter' s remaining SAG issues in this direct appeal because they
                                                                                                      7
either   ask us   to   re -weigh   the   evidence and evaluate      the credibility   of witnesses,       or refer to


matters outside        the trial   record.$   See, e. g., State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970

 2004) ( We      " defer to the trier of fact on issues of conflicting testimony, credibility of witnesses,

and   the   persuasiveness of       the   evidence. ");   McFarland, 127 Wn.2d at 335.


            Because the State' s charging documents were constitutionally sufficient and because

Carpenter' s SAG arguments lack merit, we affirm his convictions and sentence.




7 For example, Carpenter argues for a new trial based on all the witnesses' inconsistent trial
testimony.

8
 For example, Carpenter asserts that he has filed a police brutality complaint against the Tenino
Police Department and the Thurston County Sheriff' s Department.



                                                               25
No. 43878 -0 -II



        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




                                                    BJ(' i GEN,
We concur:




JOHANSON, A.C. J.
 i




MAXA, J.




                                                  F
