       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


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                       Appellant.                     FILED: May 6, 2013




       Cox, J. - Jeffrey Woods was convicted of third degree malicious mischief.

On appeal, he claims that the circumstances of his case did not permit a jury

instruction that included a permissive inference of malice. He further asserts that

he received ineffective assistance of counsel because his counsel did not object

to this instruction. He also contends that there was insufficient evidence to

support his conviction. Lastly, he argues that the trial court lacked authority to

impose alcohol-related community custody conditions. We disagree with all

claims and affirm.

       Angie and James Montgomery1 own a motel in Sedro-Woolley,
Washington. In 2010, Angie rented a room to Woods. Woods later rang the

motel office bell because he wanted a key to his room. Angie, who was sleeping

in a room connected to the office, woke up and gave Woods a key. Woods did



       1 To avoid confusion, we refer to the parties with the last name Montgomery
by their first name.
No. 68031-5-1/2



not leave right away, so she opened the office door and helped him out. Woods

left, and Angie went back to sleep.

      Shortly thereafter, Woods rang the bell again and wanted to be let back

into the office. At that point, Angie and her husband, James, went to the office

and could see Woods outside. James testified that he talked to Woods through a

service window, and Woods told him an animal was chasing him. James did not

see any animal.

       Angie and James testified that Woods tried to open the office door multiple

times and tried to climb through the service window to get into the office. But

they did not let him in. Angie called the police.

       Officer Paul Eaton responded to the call first, and Officer Oscar Matthew

Vollans arrived later. The officers tried to apprehend Woods, but he resisted. In

trying to apprehend Woods, the officers used physical force, a stun gun, and
pepper spray. At one point, the officers trapped Woods in an area near the motel
office. Woods broke one of the motel office's windows and jumped through it.

He eventually left the office, and the officers were able to apprehend him.
       OfficerVollans drove Woods to a hospital. An emergency room physician

testified that Woods tested positive for amphetamines.

       The State charged Woods with two counts of third degree assault ofa law
enforcement officer, possession of methamphetamine, first degree criminal
trespass, and third degree malicious mischief. Ajury convicted Woods for the
assault of Officer Vollans, criminal trespass, and malicious mischief. The jury did
No. 68031-5-1/3



not reach a verdict for the assault of Officer Eaton and possession of

methamphetamine.

      The trial court sentenced Woods to 14 months of confinement for the

assault, concurrent with 364 days for the criminal trespass and malicious

mischief offenses. The trial court also imposed 12 months of community custody

for the assault. As part of community custody, the trial court ordered the

following conditions: "Do not possess or consume alcohol and do not frequent

establishments where alcohol is the chief commodity for sale."

       Woods appeals the third degree malicious mischief conviction and the

community custody condition in his judgment and sentence.

                              JURY INSTRUCTION

       Third degree malicious mischief requires proof that a person "[kjnowingly
and maliciously cause[d] physical damage to the property of another."2 For the
first time on appeal, Woods challenges Jury Instruction 23, which provided the

definition of malice:

               Malice and maliciously mean an evil intent, wish, or design
       to vex, annoy, or injure another person.

               Malice may be, but is not required to be, inferred from
       an act done in willful disregard of the rights ofanotherP]
Woods asserts that the trial court erred by including the permissive inference in

the second part of the malice definition.




       2RCW9A.48.090(1)(a).

       3 Clerk's Papers at 93 (emphasis added).
No. 68031-5-1/4



       Under RAP 2.5(a)(3), we review a claim of error not raised below only

where the error is manifest and affects a constitutional right. To establish that

the error was manifest, a defendant must make a plausible showing that the error

had a practical and identifiable consequence in the trial of his or her case.4
       Here, Woods does not make any argument that the error was manifest.

Since Woods bears the burden of showing that the error was manifest, we will

not review this assignment of error in this context.

                   INEFFECTIVE ASSISTANCE OF COUNSEL

       Woods argues, in the alternative, that his counsel was ineffective because

counsel failed to object to the permissive inference in Jury Instruction 23. We

disagree.

       "A claim of ineffective assistance of counsel is an issue of constitutional

magnitude that may be considered for the first time on appeal."5
       To prevail on a claim of ineffective assistance of counsel, a defendant
must show that his counsel's performance fell below an objective standard of

reasonableness and that the deficient performance prejudiced his trial.6 The
reasonableness inquiry presumes effective representation and requires the

defendant to show the absence of legitimate strategic or tactical reasons for the




       4 State v. Lynn, 67 Wn. App. 339, 345, 835 P.2d 251 (1992).

       5 State v. Kvllo. 166 Wn.2d 856, 862, 215 P.3d 117 (2009).

       6 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).
No. 68031-5-1/5



challenged conduct.7 Failure on either prong defeats a claim of ineffective
assistance of counsel.8

       Here, Woods argues that his counsel was deficient because counsel failed

to object to Jury Instruction 23. He contends that the circumstances in this case

did not support the part of the instruction containing the permissive inference of

malice.

       "A permissive inference suggests to the jury a possible conclusion to be

drawn if the State proves predicate facts, but does not require the jury to draw

that conclusion."9 "A permissive inference is valid when there is a 'rational
connection' between the proven fact and the inferred fact, and the inferred fact

flows 'more likely than not' from the proven fact."10
          In State v. Ratliff, this court considered "whether the trial court erred in

instructing the jury that it could infer malice 'from an act done in willful disregard

of the rights ofanother.'"11 There, police officers left Ratliff in the back of police
van for approximately 15 minutes unattended.12 When the police officers


          7 McFarland, 127 Wn.2d at 336.

          8 Strickland, 466 U.S. at 697; State v. Foster, 140 Wn. App. 266, 273, 166
P.3d 726 (2007).

          9 State v. Ratliff, 46 Wn. App. 325, 330, 730 P.2d 716 (1986).

        10 Id, at 330-31 (quoting County Court of Ulster County v. Allen. 442 U.S. 140,
167, 99 S. Ct. 2213, 2230, 60 L. Ed. 2d 777 (1979); Learv v. United States, 395 U.S.
6, 36, 89 S. Ct. 1532, 1548, 23 L. Ed. 2d 57 (1969); State v. Johnson, 100 Wn.2d
607, 616, 674 P.2d 145 (1983), overruled on other grounds, State v. Bergeron, 105
Wn.2d 1,711 P.2d 1000(1985)).

          11 46 Wn. App. 325, 329-30, 730 P.2d 716 (1986).

          12 Id. at 326.
No. 68031-5-1/6



returned, they found that Ratliff had broken the window between the holding area

and the cab of the van.13 They saw that the radio was damaged and an officer's
jacket was pulled through the window.14 Ratliff was convicted of second degree

malicious mischief.15

      This court explained that the jury instruction was proper because there

was a "rational connection" between the proven facts of that case and an

inference of malice:


      Ratliff admitted on cross examination that he continued to pull radio
      wires loose after he did not succeed in bringing the radio towards
      him. He stated that he continued to pull at the wires because he
      "was frustrated." Furthermore, the officers testified that one of their
      jackets had been pulled through the window into the prisoner
      holding area, a situation more consistent with malicious intent than
      with Ratliff's claims that he wanted to use the radio to call help.[16]

In conclusion, this court stated that "the inference of malice flows more likely than

not from the conduct of the defendant."17

       Here, the same conclusion is appropriate. The motel owners testified that

Angie called the police because Woods wanted to enter the motel office, but they

would not let him in. After the police officers arrived and were trying to

apprehend Woods, James testified that Woods asked him to open the window.

James told him that he could not do that. After James refused to open the


       13kL
       14 Ji

       15 id. at 327.

       16 Id.     at 331.

       17
            Id.
No. 68031-5-1/7



window, Woods broke the window. Officer Vollans then shot pepper spray at

Woods, and Woods jumped through the broken window.

       Based on this testimony, an inference of malice flows more likely than not

from Woods's actions. He broke the motel office window after the motel owners


refused to let him into the office.


       Woods argues that his actions do not show that he acted maliciously. He

asserts that is "much more likely [he] was trying to escape from the officers'

aggressive actions" or that he "was desperately trying to defend himself." While

an inference that Woods was trying to escape or defend himself may be made

from his actions, this inference does not negate a separate inference of malice.

       In sum, there is a rational connection between the evidence of Woods's

actions and an inference of malice. The trial court did not err when it included

the permissive inference in the malice definition. Thus, Woods's counsel was not

deficient for failing to object to the jury instruction.

       We need not address the prejudice prong of Woods's ineffective

assistance of counsel claim, given the lack of deficient performance by his

counsel.18 This claim fails.

                         SUFFICIENCY OF THE EVIDENCE

       Woods argues that there was insufficient evidence to support his third

degree malicious mischief charge conviction. Specifically, he contends that the

State did not prove that he acted maliciously when he broke the motel office

window. We disagree.

       18
            See Strickland, 466 U.S. at 697; Foster, 140 Wn. App. at 273.
No. 68031-5-1/8



       Evidence is sufficient to support a conviction if, viewed in the light most

favorable to the State, any rational trier of fact could have found that each

element of the crime was proved beyond a reasonable doubt.19 We draw all

reasonable inferences from the evidence in the State's favor and interpret the

evidence most strongly against the defendant.20 We assume "the truth of the

State's evidence and all inferences that reasonably can be drawn therefrom."21
We defer to "the trier of fact on issues of conflicting testimony, credibility of

witnesses, and the persuasiveness of the evidence."22
       As explained above, third degree malicious mischief requires proof that a

person "[kjnowingly and maliciously cause[d] physical damage to the property of

another."23 "Maliciously" is defined as "evil intent, wish, or design to vex, annoy,
or injure another person."24 "'Malice' may be inferred from an act done in willful
disregard of the rights of another. . . ,"25
       Here, viewing the evidence in the light most favorable to the State, the

evidence was sufficient to support a finding that Woods maliciously broke the

motel office window. This act occurred after the motel owners refused to let him


       19 State v. Drum, 168 Wn.2d 23, 34-35, 225 P.3d 237 (2010).

       20 State v. Joy, 121 Wn.2d 333, 339, 851 P.2d 654 (1993).

       21 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

       22 State v. Fiser. 99 Wn. App. 714, 719, 995 P.2d 107 (2000).

       23RCW9A.48.090(1)(a).

       24 RCW9A.04.110(12).

       25 Id.



                                               8
No. 68031-5-1/9



into the office. Woods acted with an intent, wish, or design to vex or annoy the

motel owners. As noted above, this intent can be inferred from the act itself and

because it was done in willful disregard of the motel owners' rights.

      Woods argues that although the motel owners "repeatedly denied him

entry to the office, Woods did no damage in response to the refusals." But all

reasonable inferences must be drawn in favor of the State.26 A reasonable

inference is that Woods broke the window in response to their refusals.

      Woods also contends that the "timing of [his] desperate act of jumping

through the window indicates the act was an automatic response to danger

rather than one designed to vex or annoy the motel owners." But even if Woods

primarily broke the window as a reaction to danger, he does not cite any authority

to support his suggestion that malice must be his exclusive or primary intent.

Thus, this argument is not persuasive.

       In sum, the State presented sufficient evidence to prove that Woods

maliciously broke the motel office window.

                      COMMUNITY CUSTODY CONDITIONS

       Woods argues that the trial court exceeded its statutory sentencing

authority when it imposed the following community custody conditions in his

judgment and sentence: (1) do not "possess .. . alcohol," and (2) do not
"frequent establishments where alcohol is the chief commodity for sale."27 He
contends that these conditions were not authorized by law because there was


       26 See Salinas, 119 Wn.2d at 201.

       27 Id, at 17 (citing Clerk's Papers at 166).
No. 68031-5-1/10



some evidence that he was not drinking alcohol on the day ofthe incident.28 We
disagree.

      As an initial matter, the parties agree that the trial court had the statutory

authority to prohibit Woods's consumption of alcohol.29 Thus, we need not
review this condition.


       Illegal or erroneous sentences may be challenged for the first time on

appeal.30 We review a trial court's imposition of a crime-related community

custody condition for abuse ofdiscretion.31 The trial court abuses its discretion
when its decision is manifestly unreasonable or exercised on untenable grounds

or for untenable reasons.32

       Acourt may impose only a sentence that is authorized by statute.33 Under
RCW 9.94A.703(3)(f), a court may order an offender to "[c]omply with any crime-

related prohibitions." A crime-related prohibition is an order that prohibits

"conduct that directly relates to the circumstances of the crime for which the

offender has been convicted."34



       28 jd,
       29 Respondent's Brief at 25-26 (citing State v. Jones, 118 Wn. App. 199, 76
P.3d 258 (2003)); Reply Brief of Appellant at 1.

       30 State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008).

       31 State v. Riley, 121 Wn.2d 22, 37, 846 P.2d 1365 (1993).

       32 Maverv.Sto Indus.. Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).

       33 State v. Barnett, 139 Wn.2d 462, 464, 987 P.2d 626 (1999).

       34RCW9.94A.030(10).


                                          10
No. 68031-5-1/11



       Here, Woods testified at trial that he had consumed "quite a few beers"

before the incident. This testimony shows that there was some evidence that

alcohol played a role in his offenses. Thus, the trial court did not abuse its

discretion when it prohibited him from possessing alcohol and frequenting

establishments where alcohol is the chief commodity for sale.

       Woods argues that there was "scientific evidence" that "definitively

established]" that he had not been drinking alcohol. He cites portions of his trial

testimony referring to a urine test. But the medical document referred to in this

testimony is not in the record. Thus, we cannot review this document.

       Further, based on Woods's testimony, the urine test results are unclear.

During the State's cross-examination of Woods, Woods gave the following

testimony:

       Q. Okay. And have you heard Dr. Swenson testify yesterday your
       urine was checked for drugs; is that right?

       A. Yeah. Well, I guess they got my urine out of the catheter while
       they started giving me fluids. My body functions were shutting
       down.


       Q. They checked your urine. And isn't it correct that you were zero
       for alcohol?

               MR. RIGUELME [defense counsel]: Objection, Your Honor.
               I don't think Mr. Woods has testified that he has personal
               knowledge of this.

               MS. DYER [prosecutor]: Your Honor, this is impeachment.
               He's testified he drank several beers. This indicates he had
               no alcohol in his system. He indicated he is familiar with
               these records.

               THE COURT: Overruled.

       Q. Is that what that indicates? That means you can answer.



                                          11
No. 68031-5-1/12




       A. It says Iwas out of body fluids. I had been drinking all day.[35]

According to this testimony, it is not clear what the urine test revealed. But it is

clear that Woods insisted that he consumed alcohol before the incident.36 We do

not review on appeal the trial court's credibility determinations.37
       Since Woods's testimony demonstrates that alcohol played a role in his

offenses, the trial court did not abuse its discretion when it imposed community

custody conditions related to alcohol.

       Woods makes other arguments regarding Officer Eaton's testimony that

he appeared intoxicated and the time that elapsed between the incident and

urine test. But these arguments are not helpful given Woods's testimony.

       We affirm the judgment and sentence.                   .           _——




WE CONCUR:




       35 Report of Proceedings (Oct. 5, 2011) at 108.

       36 Compare id, wjth Report of Proceedings (Oct. 5, 2011) at 62, 105.

       37 State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).



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