      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,                       ]
                                           1       No. 75034-8-1                            —^


                     Respondent,           )                                            G   •-••; _.

                                                   DIVISION ONE
       v.                                  )

KYLE STODDARD,                                     UNPUBLISHED OPINION


                     Appellant.             )      FILED: June 13, 2016

       Spearman, J. — Kyle Stoddard was convicted of custodial assault against

three corrections officers. He appeals, arguing that the trial court deprived him of

a fair trial by requiring him to wear an electric shock restraint during trial and by

placing two prison guards near him in the courtroom. Stoddard also argues that

one of his assault convictions must be overturned because the evidence for that

charge was insufficient. Finding no error, we affirm.

                                        FACTS

       Stoddard was an inmate at a corrections center. During a meal, Stoddard

violated the center's rules by moving to another table, refusing to return to his

seat, and putting food in his pockets. Corrections Officer Torey Casey directed

Stoddard to leave the dining hall. Stoddard threw his tray on the ground,

approached Casey, and told him he would "kick [his] fucking ass." Verbatim

Report of Proceedings (VRP) (10/30/14) at 30.
No. 75034-8-1/2


      Two corrections officers who were outside the dining hall, William Lane

and Roland Daniels, heard Casey radio for help. Lane entered the hall to assist

while Daniels remained by the doors to block Stoddard from exiting. Daniels

observed the incident through the glass of the door.

      Lane approached Stoddard and Casey. Stoddard threatened Lane and

approached him with his fists clenched. Casey used pepper spray on Stoddard.

Lane stated that he tried to grab Stoddard but Stoddard evaded him and

"charged" toward the door. VRP (10/30/14) at 47.

       Daniels stated that he saw Stoddard coming toward the door. Daniels

realized that he did not have time to lock the door, so he put his shoulder against

it to slow Stoddard's exit. Stoddard forcefully ran into the door and the impact

caused Daniels to fall.

       Casey and Lane tried to restrain Stoddard. According to the officers,
Stoddard ignored instructions to stop and continued to swing at them. Daniels
eventually brought Stoddard under control by causing him to fall. Stoddard was
stunned or unconscious for a moment, then continued trying to hit Daniels.

       According to Stoddard, after he was pepper sprayed, he was scared,
panicked, and anxious and only wanted to get away. He stated that because of
the pepper spray he could not see well and did not see Daniels standing outside
the door. Stoddard denied throwing punches once he was outside and stated that

he was only trying to get away from the confrontation.

       Stoddard was charged with three counts of custodial assault. While

awaiting trial, the court granted Stoddard's request to be housed temporarily at
No. 75034-8-1/3


the Grays Harbor County Jail in order to facilitate attorney-client communication.

The court instructed Stoddard to be a "perfect gentleman" and specifically

instructed him not to assault any officers. VRP (6/23/14) at 6-7. Stoddard replied

"Yes sir." VRP (6/23/14) at 7.

       While at the county jail, Stoddard allegedly assaulted a deputy sheriff and

broke his jaw. Stoddard also allegedly stated that it was his goal to hospitalize at

least one staff member from every correctional center in which he was

incarcerated.

       In its pretrial brief, the State noted that Stoddard had five prior convictions

for assaulting police. The State explained that, due to Stoddard's alleged assault

of the Grays Harbor officer, he was "not welcome" to be housed at the Grays

Harbor jail or any other nearby jail for trial. Clerk's Papers (CP) at 35. The State

anticipated that the Department of Corrections (DOC) would use a "special

extraction team" to transport Stoddard to court and fit him with an electric shock

harness worn under clothes for trial. The State noted that Stoddard had never

"acted out" in the courtrooms at Grays Harbor jail. |a\ Defense counsel did not

move to remove Stoddard's restraints or request a hearing on the issue.

       At a pretrial hearing, the court inquired about security measures. The

State explained that its understanding was that DOC would restrain Stoddard

using an electric shock harness that would be worn under Stoddard's clothes.

The trial court confirmed that this device would not be visible to the jury. The

court instructed Stoddard that it expected him to "conduct [himself] appropriately"

and that if he did not "we will take appropriate steps to make sure that the
No. 75034-8-1/4


courtroom is secure." VRP (10/27/14) at 8. Stoddard replied "Yes, sir." VRP

10/27/14 at 7-8. Defense counsel did not object or move to remove restraints at

trial.


         On the day of the trial, outside the presence of the jury, the court

addressed the parties about security measures. The court stated that it had

learned that morning from a corrections officer that Stoddard was fitted with an

electric shock device under his clothing on the lower part of one leg. If activated,

the device would make it difficult for Stoddard to fully use that leg but would not

incapacitate Stoddard. The court stated that it had decided to move counsel table

to allow room for two security officers to stand or sit behind Stoddard. The court

stated that it made this decision after considering the nature of the charge

against Stoddard, the alleged assault at the Grays Harbor jail, and the alleged

threats to injure other law enforcement officers. The court also stated that the risk

of prejudice was low given that, because of the nature of the charges, the jury

would necessarily be informed that Stoddard was an inmate in a correctional

facility.

            Defense counsel objected that the presence of security officers was

prejudicial. Counsel also objected that the presence of officers behind counsel

table violated Stoddard's right to confidential communication with his attorney.

After inquiring whether the officers were able to hear communications between

Stoddard and his attorney and receiving a negative reply, the court ruled that

there was sufficient distance for Stoddard to communicate with his attorney in

confidence.
No. 75034-8-1/5


      Stoddard was convicted as charged. He appeals.

                                    DISCUSSION

      Stoddard first argues that the trial court violated his right to a fair trial by

requiring him to wear an electric shock device and placing security guards near

counsel table. The trial court has discretion to determine whether a defendant

should be restrained in court. State v. Walker, 185 Wn. App. 790, 799-80, 344

P.3d 227, rev. denied, 183Wn.2d 1025, 355 P.3d 1154(2015). In making this

decision, the trial court must "balance the need for a secure courtroom with the

defendant's presumption of innocence, ability to assist counsel, the right to testify
in one's own behalf, and the dignity of the judicial process." ig\ at 796 (quoting

State v. Finch, 137 Wn.2d 792, 842-45, 975 P.2d 967 (1999)).

       The court may consider factors such as the seriousness of the present

charge, the defendant's past record, the defendant's behavior in court, threats to
harm others, past escape attempts or evidence of current plans to escape, and

the nature of the courtroom. State v. Damon, 144 Wn.2d 686, 691-92, 25 P.3d

418 (2001) (citing Finch, 137 Wn.2d at 848). The trial court should hold a hearing
and enter findings offact before allowing the use of restraints. Id Prison officials
"may be well positioned to assist the trial court in deciding matters of courtroom
security     "Walker, 185 Wn. App. at 797. But it is an abuse ofdiscretion for the
trial court to impose restraints based solely on a request by a correctional officer.

Damon, 144 Wn.2d at 692.

       Stoddard urges us to find that the trial court abused its discretion because

it imposed restraints based on the ex parte request of a corrections officer.
No. 75034-8-1/6


Stoddard asserts that he had a history of exemplary courtroom behavior and

there was no basis for the trial court to impose restraints.

        Stoddard's argument is without merit. In determining what security

measures to impose, the trial court properly weighed a number of factors. The

court considered the present charge against Stoddard, which concerned

assaulting law enforcement officers and trying to flee from them. The court also

considered separate pending charges for assaulting a law enforcement officer

and reports of threats to harm others. The court weighed the risk of prejudice

from placing officers near Stoddard and found that the risk was minimal. The trial

court did not abuse its discretion.

        Stoddard also urges us to find that the trial court erred in failing to conduct

a hearing on the use of restraints. We reject this argument. In response to the

State's pretrial briefdiscussing restraints, Stoddard raised no objection and

raised no motion to remove restraints. The court specifically inquired about

security measures at a pre-trial hearing. Stoddard made no argument against the

use of restraints.1

        While the trial court must generally hold a hearing on the use of restraints,

it need not do so sua sponte where, as here, there is no dispute that the

restraints are not visible to the jury and the defendant does not object. Moreover,


        1In arguing that we should review this claim raised for the first time on appeal, Stoddard
asserts that his attorney was ineffective for failing to raise the issue below. The claim fails
because Stoddard cannot show that his attorney's performance was deficient or that even ifit
was, there is a reasonable probability that but for the claimed error, the result of the trial would
have been different. (See State v. Thomas. 109 Wn.2d 222, 225-56, 743 P.2d 816 (1987),
applying the two prong test in Strickland v. Washington. 466 U.S. 668, 687, 104 S.Ct2052, 80
LEd.2d 674 (1984)).
No. 75034-8-1/7


despite Stoddard's failure to object, the trial court explained on the record the

basis for its reasoning and showed that it had considered the proper factors in

determining what security measures to impose. There was no error.

       Finally, Stoddard argues that the trial court did not adequately consider

the prejudice created by the proximity of the corrections officers and by the

psychological impact of the electrical shock device. He argues that the presence

of the officers near counsel table conveyed the message to the jury that Stoddard

was dangerous. He also argues that fear of being shocked likely affected

Stoddard's demeanor as he testified and thus harmed his credibility with the jury.

We reject both arguments.

       First, the trial court considered the risk of prejudice from the proximity of

the officers to Stoddard. The court properly balanced its security concerns with

the potential for speculation by jurors about why the officers were seated near

Stoddard. There was no abuse of discretion. Second, Stoddard cites to nothing in

the record supporting his claim that his demeanor during his testimony was

affected by the electric shock device or that the jurors considered his testimony

less credible because of the claimed effect it had on him. Relying on Riqqins v.

Nevada. 504 U.S. 127, 112 S.Ct 1810, 118 L.Ed.2d 479 (1992), Stoddard argues

that we should simply presume prejudice, but his reliance is misplaced.

       In that case, Riggins, the defendant was convicted and sentenced to

death following a trial during which he was forcibly medicated with antipsychotic

drugs. He appealed the trial court's refusal to allow him to attend trial in an

unmedicated condition, contending that it denied him a full and fair trial, jd. at
No. 75034-8-1/8


133. In reversing Riggins' conviction, the court recognized the futility of

attempting to "prove or disprove actual prejudice from the record before us" and

that "the precise consequences of forcing antipsychotic medication upon Riggins

cannot be shown from a trial transcript." Id. at 137. Nonetheless, Riggins was

entitled to relief because his claim was supported by testimony in the record of

doctors who had examined him which established "a strong possibility that [his]

defense was impaired due to the administration of Mellaril." Id.

       Stoddard argues that like Riggins, his claim should not be denied simply

because it is difficult to discern actual prejudice from a cold record. But unlike

Riggins, Stoddard cites to nothing in the record to support his claim. Instead, he

asks us to speculate about the possible effect the electric shock device may have

had on his testimony. Accordingly, we reject the argument.

       Stoddard next argues that his conviction for assaulting Daniels rests on

insufficient evidence and must be reversed. In reviewing for sufficiency of the

evidence, the question 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. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992)

(citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)).

       Stoddard argues that there was insufficient evidence for the jury to find

that he intended to assault Daniels. At trial, Stoddard testified that he did not see

Daniels standing outside the door, did not intend to hit Daniels with the door, and

did not swing at Daniels or attempt to hit him with his fists. But the corrections

officers testified that, after flying into a rage and making threats to corrections


                                           8
No. 75034-8-1/9


officers, Stoddard ran straight to the door where Daniels was visible and charged

into the door with enough force to knock Daniels down. They testified that, once

outside, Stoddard continued swinging at them. Daniels testified that as he tried to

restrain Stoddard, Stoddard continued trying to hit him. The jury was also shown

a surveillance video that captured much of the incident.

       We conclude that the evidence was sufficient for a jury to find that

Stoddard intended to assault the corrections officer who stood in his way and

tried to restrain him.

       Affirm.




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WE CONCUR:




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