                                                                        FILED 

                                                                   SEPTEMBER 9, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 32156-8-III
                     Respondent,              )
                                              )
       v.                                     )
                                              )
CRAIG HOWARD WALLACE, II,                     )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. - Craig Wallace appeals his conviction of multiple counts of

violating no-contact orders. He contends that the trial court erred by admitting recordings

of offending phone calls that he made from the Thurston County jail without sufficient

authentication and over his hearsay objection, that he received ineffective assistance of

counsel when his lawyer failed to raise a confrontation clause objection to admission of

the recordings, and that the State's charging document failed to allege all essential

elements ofobstructing a law enforcement officer. Because we find no reversible error

or abuse of discretion and Mr. Wallace's pro se statement of additional grounds raises no

meritorious challenge, we affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       In October 2011, a no-contact order issued restraining Craig Wallace from

contacting or coming within 500 feet of his girl friend, Mony Leap. Yet early in the
No. 32156-8-111
State v. Wallace


evening on New Year's Day 2012, his presence near the front door of Ms. Leap's

apartment was reported to police. When officers arrived at the apartment, Mr. Wallace,

who was then on the steps of the porch, took off running. Deputy Rod Ditrich chased

him but the pursuit proved fruitless. A few days later, on January 4, officers arrested Mr.

Wallace after responding to a further report of a protection order violation at Ms. Leap's

apartment. This time Mr. Wallace was inside when officers arrived; after they

established a perimeter around the apartment and told Ms. Leap that they would obtain a

search warrant (Ms. Leap had denied that Mr. Wallace was present), Mr. Wallace came

out of the apartment and surrendered without incident.

       Following Mr. Wallace's arrest, a further no-contact order was issued that restrained

Mr. Wallace from contacting Ms. Leap by telephone. Undeterred, Mr. Wallace, who was

being held in the Thurston County jail, placed 14 telephone calls to Ms. Leap from the jail

between January 30 and February 6. The calls, which were recorded routinely by the jail's

telephone operating system, were all made on Mr. Wallace's jail account, to a phone

number that Ms. Leap had earlier provided to police as a contact number.

      At trial, the State offered a compact disc (CD) containing portions of the recorded

telephone calls as evidence. Defense counsel initially objected to admission of the

recordings based on lack of authentication and, later, on the basis of hearsay. The

objections were overruled. At the conclusion of trial, Mr. Wallace was found gUilty as

charged. He appeals.

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No. 32156-8-111
State v. Wallace


                                        ANALYSIS

       Mr. Wallace assigns error to the trial court's (1) admitting recordings of telephone

conversations without sufficient authentication; (2) admitting the recordings over his

hearsay objection; (3) permitting him to be represented ineffectively, by counsel who

failed to raise a confrontation clause objection to admission of the recordings; and (4)

submitting the charge of obstructing a law enforcement officer to the jury despite the

State's failure to allege an essential element of the crime in the information. We address

the alleged errors in turn.

                                      1. Authentication

       Mr. Wallace challenges the sufficiency of the authentication of the calls recorded

from the Thurston County jail. He emphasizes the facts that the State had no witness

familiar with Ms. Leap's voice who could identifY her as the female speaker and that the

female speaker never identified herself during the call as Mony or Mony Leap. Mr.

Wallace argues that while circumstantial evidence can augment direct evidence of a

speaker's voice on a recording, authentication requires either a witness able to identifY

the voice or self-identification by the speaker. He cites as support State v. Williams, 136

Wn. App. 486, 150 P.3d 111 (2007); Passovoy v. Nordstrom, Inc., 52 Wn. App. 166, 171,

758 P.2d 524 (1988); and State v. Danielson, 37 Wn. App. 469, 681 P.2d 260 (1984).

       The recordings offered by the State were relevant only if they were, in fact, calls

initiated by Mr. Wallace to Ms. Leap. The evidentiary rule of authentication requires that

                                             3

No. 32156-8-111
State v. Wallace


a proponent present evidence sufficient to support a finding that the proffered item is

what the proponent claims. ER 901(a); State v. Rodriguez, 103 Wn. App. 693, 701, 14

P.3d 157 (2000), aff'd, 146 Wn.2d 260,45 P.3d 541 (2002). Because the determination

of admissibility is a preliminary question, the rules of evidence do not limit the evidence

that can be offered for authentication. ER 104(a); Passovoy, 52 Wn. App. at 170. A trial

court may rely upon hearsay or the proffered evidence itself; the information supporting

the determination need only be reliable. Williams, 136 Wn. App. at 500-01. The identity

of a party to a telephone conversation may be established by either direct or

circumstantial evidence. Danielson, 37 Wn. App. at 472. The court should admit the

evidence ifthere is sufficient proof to permit a reasonable juror to find in favor of

authentication, or identification. Passovoy, 52 Wn. App. at 171.

       The three cases that Mr. Wallace relies upon for the proposition that authentication

requires a witness able to identify the voice of the speaker or the speaker's self-

identification all involved incoming telephone calls, with no evidence as to the phone

number from which the call was initiated. In Williams, the recording at issue was of a

victim's call to 911, reporting that she had been burglarized. 136 Wn. App. at 499. In

Passovoy, a personal injury plaintiff sought to testify to a call he received from a woman

who identified herself as the Nordstrom department store employee assigned to handle

his claim. 52 Wn. App. at 168. In Danielson, the State wanted to offer a police officer's

testimony about a call received from a defendant who self-identified and admitted to

                                              4

     No. 32156-8-111 

     State v. Wallace 

j
f    having committed a crime. 37 Wn. App. at 471. It is fair to say that in the case of an
I	

I
I
     incoming call, to a recipient who does not recognize the caller's voice and who is not told

!    who is calling, circumstantial evidence alone would ordinarily be insufficient to persuade
1
1	   a reasonable juror of the caller's identity.
I
,
I
1
            Here, however, the State presented evidence on the security features of its

I    telephone operating system and the information recorded by the system to demonstrate


I    that the recorded calls were placed by Mr. Wallace to a telephone number that was used

     by Ms. Leap. That solid evidentiary starting point was lacking in the cases on which Mr.

     Wallace relies. In addition, there was significant circumstantial evidence from the

     substance of the conversations that the female speaker was Ms. Leap, including

     references to an arrest of the female speaker by sheriff's deputies that were consistent

     with an arrest of Ms. Leap; references to the female speaker's daughter by her name,

     which was the same as that of Ms. Leap's daughter; statements by both the male and

     female speaker, referencing "Mony"; discussion between the two about who might have

     called in to report violations of a no-contact order, including speculation that it might

     have been "Lisa," which happened to be the name of Ms. Leap's landlord; discussions of

     a no-contact order and the male inmate's statement that he had shown his loyalty to their

     relationship by coming to the female's home despite the no-contact order; and

     professions of their love for one another.




                                                    5

No. 32156-8-111
State v. Wallace


       The decision to admit evidence lies within the sound discretion of the trial court

and should not be overturned absent a manifest abuse of discretion. State v. Neal, 144

Wn.2d 600,609, 30 P.3d 1255 (200 I). No abuse of discretion has been demonstrated.

                                          II Hearsay

       At trial, the State called Detective David Claridge to lay a foundation for

admission of the recorded conversations. When the State moved for admission of the CD

containing portions of the recordings, the defense unsuccessfully objected on hearsay

grounds. Mr. Wallace argues on appeal that in order for the jury to find that Mr. Wallace

was in fact talking to Ms. Leap, it would have to be relying on the statements of the

female caller for the truth of the matter asserted, "for otherwise the conversations are

irrelevant." Br. of Appellant at 9.

       "Hearsay" is "a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER

801 (c). Where a statement is not offered for the truth of its contents but for another

relevant purpose, the statement is not hearsay and is admissible. See State v. Iverson, 126

Wn. App. 329,337, 108 P.3d 799 (2005). We review a trial court's hearsay ruling for an

abuse of discretion. State v. Strauss, 119 Wn.2d 401,417,832 P.2d 78 (1992).

Discretion is abused if it is exercised without tenable grounds or reasons. State ex reI.

Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971).




                                              6

No. 32 I 56-8-III
State v. Wallace


       To be relevant, the female speaker's statements must have encompassed

information about Ms. Leap's actual life and circumstances sufficient to support a finding

by the jury that Ms. Leap was the speaker. From that, Mr. Wallace reasons that the

statements were being offered for their truth, but this is a mistake. To illustrate why,

consider a variation on a classic hearsay illustration: "I am the Pope." The statement is

hearsay if offered to prove that the speaker is the Pope, but is not hearsay if offered on

the issue of the speaker's mental competence. For present purposes, assume that the

next-door neighbor of an individual named Duncan Richardson says, "Duncan

Richardson is the Pope." This statement, too, is hearsay if offered to prove that Duncan

Richardson is the Pope and not hearsay if offered on the issue of competence; it is also

not hearsay if it is offered as evidence that the speaker is aware of the existence of his

neighbor, Duncan Richardson (and, for that matter, that he has delusions about Mr.

Richardson).

       The statements of the female speaker on the recorded conversations were offered

to demonstrate her awareness of her surroundings and events she had experienced, which,

together with the evidence that the calls were placed to Ms. Leap's telephone number,

would support a finding by the jury that the calls were placed to Ms. Leap. They were

not offered to prove the truth of what she said about her surroundings and events she had

experienced. The trial court did not abuse its discretion when it overruled the hearsay

objection.

                                              7

No. 321 56-8-III
State v. Wallace


                                  III. IneJJective Assistance

       Mr. Wallace next argues that because there was no showing that the female

speaker on the recorded conversations was unavailable for trial or had been subject to

prior cross-examination, admission of the recordings violated his Sixth Amendment right

to be confronted with witnesses against him. He contends that his trial lawyer' s failure to

object to the recordings on the basis of the confrontation clause constituted ineffective

assistance of counsel.

       To establish a claim for ineffective assistance of counsel, the defendant must

prove that his lawyer's perfonnance fell below an objective standard of reasonableness

and that the deficient perfonnance prejudiced the outcome. In re Det. ofStrand, 139 Wn.

App. 904,912, 162 P.3d 1195 (2007) (citing State v. McFarland, 127 Wn.2d 322, 334­

35,899 P.2d 1251 (1995)), aJJ'd, 167 Wn.2d 180,217 P.3d 1159 (2009). When a trial

lawyer fails to object to the admission of evidence, a defendant alleging ineffective

assistance must show that the trial court would likely have sustained the objection. Id. at

912-13 (citing In re Det. ofStout, 159 Wn.2d 357,377,150 P.3d 86 (2007)). Mr.

Wallace cannot meet his burden of showing that the trial court would likely have

sustained a confrontation clause objection to admission of the recordings.

       The Sixth Amendment provides that in "all criminal prosecutions, the accused shall

enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend.

VI. "Witnesses" in this context are "those 'who bear testimony'" against a defendant.

                                             8

No. 32156-8-III
State v. Wallace


Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S. Ct. 2527, 1741. Ed. 2d 314

(2009) (internal quotation marks omitted) (quoting Crawford v. Washington, 541 U.S. 36,

51, 124 S. Ct. 1354, 1581. Ed. 2d 177(2004)). While the Supreme Court has not provided

a comprehensive definition of a "testimonial" statement, it has stated that "[a]n accuser who

makes a formal statement to government officers bears testimony in a sense that a person

who makes a casual remark to an acquaintance does not." Crawford, 541 U.S. at 51.

      We conclude that evidence of communications that is offered not for the substance

of the communications, but to prove that the communications took place, is nontestimonial

at the most fundamental level. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 1651.

Ed. 2d 224 (2006) is instructive. In that case, the United States Supreme Court concluded

that statements made to a 911 operator by an assault victim, Michelle McCottry, as her

attacker was fleeing, were nontestimonial. In reaching that conclusion, the Court

distinguished statements about events as they were actually happening from statements

describing past events, observing that when Ms. McCottry provided information to police

officers to meet an ongoing emergency,

      [s]he simply was not acting as a witness; she was not testifying. What she
      said was not "a weaker substitute for live testimony" at trial, like Lord
      Cobham's statements in Raleigh's Case, or Jane Dingler's ex parte
      statements against her husband in King v. Dingler, or Sylvia Crawford's
      statement in Crawford. In each of those cases, the ex parte actors and the
      evidentiary products of the ex parte communication aligned perfectly with
      their courtroom analogues. Ms. McCottry's emergency statement does not.
      No "witness" goes into court to proclaim an emergency and seek help.


                                            9

No. 32156-8-III
State v. Wallace


547 U.S. at 828 (citations omitted) (quoting United States v. /nadi, 475 U.S. 387, 394,

106 S. Ct. 1121, 89 L. Ed. 2d 390 (1986); citing Raleigh's Case, 2 How. St. Tr. 1 (H.L.

1603); King v. Dingler, 2 Leach 561, 168 Eng. Rep. 383 (O.B. 1791)).

       This is an even clearer case of a speaker not acting as a witness. Suppose Ms.

Leap had been available at trial. The State would not have called her as a witness to elicit

any of the statements she made during her telephone conversations with Mr. Wallace.

She made no statements that implicated Mr. Wallace in a crime; it is evidence that he

placed a call to her that proved his guilt.

       Even if we were not convinced that Ms. Leap's statements were nontestimonial for

this fundamental reason, we would still hold that an inmate's jailhouse telephone call to a

girl friend is ordinarily not testimonial. Mr. Wallace argues that the female speaker's

statements on the recorded conversations were testimonial because Thurston County's

use of warnings that calls from the jail were subject to recording and monitoring l would



       I The trial court listened to the entire recording of calls outside the presence of the
jury before admitting them. An example of the preface to an inmate's call, including the
warnmg IS:
              "AUTOMATED OPERATOR VOICE: This is a Telmate long
       distance operator with a prepaid call from:
              "MALE VOICE: Craig.
              "AUTOMATED OPERATOR VOICE: An inmate at Thurston
       County Jail. This call is subject to recording and monitoring. Your current
       prepaid balance is $6. Press one to accept the call. To deny this call ...
       thank you for using Telmate."
Report of Proceedings (June 26, 2012) at 177.

                                              10 

No. 32156-8-111
State v. Wallace


lead an objective witness to believe statements made during a call would be available for

use at a later trial. We agree with the decisions of two federal circuit courts that have

held that an inmate's recorded jailhouse calls with acquaintances or family members are

not testimonial.

       The Ninth Circuit Court of Appeals addressed the issue in Chio Haug Saechao v.

Oregon, 249 Fed. App'x 678 (9th Cir. 2007) (unpublished opinion), in which a tape-

recorded statement made during a jailhouse telephone call by a nontestifying codefendant

was admitted at trial. The Ninth Circuit concluded that the Oregon appellate court, which

deemed statements made during a jailhouse phone call as nontestimonial, had not

unreasonably applied federal law. It noted that Crawford does not apply to an offhand,

overheard remark; that there was no evidence suggesting that the statement made during

the recorded call was made for the purpose of supplying evidence to the prosecution; and

that the conversation was between two friends, without any active participation by a

government official. Id. at 679.

       The First Circuit Court of Appeals agreed in United States v. Castro-Davis,

recognizing-as Mr. Wallace argues here-that persons speaking with an inmate may be

repeatedly warned that telephone conversations are recorded, but concluding that the

mere fact ofthe warning does not transform an inmate's conversations with his

acquaintances and loved ones into "'solemn declarations made to government officials in




                                             11 

No. 32156-8-III
State v. Wallace


circumstances that resemble the repudiated civil-law mode of interrogation.'" 612 F .3d

53,65 (1st Cir. 2010) (quoting United States v. Brito, 427 F.3d 53, 68 (1st Cir. 2005)).

       If a party fails to satisfy one element of an ineffective assistance of counsel claim,

a reviewing court need not consider both. State v. Foster, 140 Wn. App. 266, 273, 166

P.3d 726 (2007). Because Mr. Wallace cannot demonstrate that Ms. Leap's statements in

the recordings were testimonial and that his objection on confrontation clause grounds

would have been sustained, we need not consider prejudice.

                              IV. Deficient Charging Document

       Finally, Mr. Wallace argues that the amended information was defective in failing

to allege as to the third count--obstructing a law enforcement officer-that he knew the

law enforcement officer was discharging official duties at the time ofthe crime.

       "All essential elements of a crime ... must be included in a charging document in

order to afford notice to an accused of the nature and cause of the accusation against

him." State v. Kjorsvik, 117 Wn.2d 93, 97, 812 P.2d 86 (1991). The essential elements

rule is grounded in the Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution. See id.

       "An 'essential element is one whose specification is necessary to establish the very

illegality of the behavior' charged." State v. Ward, 148 Wn.2d 803, 811,64 P.3d 640

(2003) (quoting State v. Johnson, 119 Wn.2d 143, 147,829 P.2d 1078 (1992)). Essential

elements include both statutory and nonstatutory elements. Kjorsvik, 117 Wn.2d at 101-02.

                                             12 

No. 32156-8-111
State v. Wallace


       The jury was instructed that to convict Mr. Wallace of obstructing a law

enforcement officer under RCW 9A.76.020, the State must prove three elements of the

crime beyond a reasonable doubt:

               (1) That on or about January 1,2012, the defendant willfully
       hindered, delayed, or obstructed a law enforcement officer in the discharge
       of the law enforcement officer's official powers or duties;
               (2) That the defendant knew that the law enforcement officer was
       discharging official duties at the time; and
               (3) That any of these acts occurred in the State of Washington.

Clerk's Papers (CP) at 51. The instruction was derived from llA Washington Practice:

Washington Pattern Jury Instructions: Criminal 120.02, at 468 (3d ed. 2008).

       The State's amended information alleging that Mr. Wallace obstructed a law

enforcement officer read, by comparison, as follows:

             In that the defendant, CRAIG HOWARD WALLACE, II, State of
      Washington, on or about January 1,2012, did willfully hinder, delay, or
      obstruct any law enforcement officer in the discharge of his or her official
      powers or duties.

CP at 11. While this charging language tracks the language ofRCW 9A.76.020, it fails

to allege that the defendant knew that the law enforcement officer was discharging

official duties at the time, a subjective knowledge requirement that appears to have been

identified as an essential element for the first time in State v. CLR, 40 Wn. App. 839, 700

P.2d 1195 (1985). CLR relied for authority on a Maryland decision, Cover v. State, 297

Md. 398,466 A.2d 1276 (1983). It is well settled that reciting the statutory elements of




                                            13 

No. 32156-8-111
State v. Wallace


the crime charged may not be sufficient. Kjorsvik, 117 Wn.2d at 98-99 (quoting State v.

Leach, 113 Wn.2d 679,688, 782 P.2d 552 (1989».

       Mr. Wallace is correct, then, that the subjective knowledge requirement should

have been alleged in the information. The question that remains is whether the

information was so deficient that it requires that we reverse. Because Mr. Wallace failed

to challenge the charging document until he appealed following conviction, we liberally

construe the language of the charging document in favor of validity. State v. Zillyette,

178 Wn.2d 153, 161,307 P.3d 712 (2013) (citing Kjorsvik, 117 Wn.2d at 105). Under a

two-prong approach announced in Kjorsvik, we ask whether the necessary facts appear in

any form or can be found by fair construction in the charging document; if they do, then

the defendant's challenge cannot succeed unless he shows that he was nonetheless

actually prejudiced by the inartfullanguage that caused a lack of notice. State v.

Goodman, 150 Wn.2d 774, 788, 83 P.3d 410 (2004) (citing Kjorsvik, 117 Wn.2d at 105­

06).

       The amended information charged that Mr. Wallace "willfully" hindered, delayed,

or obstructed a law enforcement officer in the discharge of his or her official powers or

duties. A charge that an act was done "willfully" typically indicates that it was done

deliberately or knowingly. See, e.g., WEBSTER'S THIRD NEW INTERNATIONAL

DICTIONARY 2617 (1993) (defining "willful" as "done deliberately: not accidental or

without purpose: INTENTIONAL, SELF-DETERMINED"). By statute, "[a]

                                            14
No. 321 56-8-III
State v. Wallace


requirement that an offense be committed willfully 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." RCW 9A.08.01O(4). In State v. Krajeski, 104 Wn. App.

377,386 nJ, 16 PJd 69 (2001), the court observed with respect to a similar allegation of

mens rea, "unlawfully and willfully," that "[i]t has long been the law in Washington that

the phrase 'unlawfully and willfully' in an information sufficiently alleges criminal

knowledge."

       When liberally construed in favor of its validity, the amended information's

allegation that Mr. Wallace's obstruction of an officer in the discharge of his official

duties was "willful" implies that Mr. Wallace knew the law enforcement officer was

discharging official duties at the time. Since the necessary elements can be found in the

charging document by fair construction and Mr. Wallace does not attempt to      dem~mstrate


actual prejudice, the State's omission of an essential element from the amended

information is not reversible error.

                      STATEMENT OF ADDITIONAL GROUNDS

       In a pro se statement of additional grounds, Mr. Wallace states two: that the

prosecutor engaged in prosecutorial misconduct and that the trial judge should have

recused himself due to a conflict of interest. We address them in turn.

       Prosecutorial Misconduct. Mr. Wallace contends that the prosecutor

mischaracterized the testimony of Deputies Rod Ditrich and David Claridge during

                                             15 

No. 321 56-8-II1
State v. Wallace


closing argument. To succeed on a claim of prosecutorial misconduct, a defendant must

allege and demonstrate that the comment was both improper and prejudicial. Because the

only objection that was made to the argument was tardy-raised only after arguments

were completed and the jury was dispatched to deliberate-the statements must have also

been flagrant and ill intentioned.

       Mr. Wallace argues that the prosecutor mischaracterized Deputy Ditrich's

testimony when she argued that the deputy recognized Mr. Wallace at Ms. Leap's

apartment on the January 1 date on which he responded to the 911 call. Yet the deputy

testified on direct examination that while Mr. Wallace was not facing the officers when

they arrived and he was initially unsure of his identity, "[a]s soon as he turned and saw us

driving in, then he turned and ran. I recognized him at that point as being the defendant."

Report of Proceedings (RP) (June 25,2012) at 71. On cross-examination, the deputy

affirmed that he came "within just a few feet" of Mr. Wallace, at which point Mr.

Wallace "turned, made eye contact, he looked at me for just a second. He had that look

like, oh, crap. And he took off, and he ran." Id. at 95, 100. Mr. Wallace fails to

demonstrate misconduct.

       Mr. Wallace argues that the prosecutor mischaracterized Deputy Claridge's

testimony by telling the jury that the deputy had spoken with Ms. Leap; the deputy's

consistent testimony had been that he had not spoken with her and could not identify her

VOice. His allegation of misconduct is based on a single statement by the prosecutor in

                                            16 

No. 32156-8-111
State v. Wallace


the course of arguing why it was reasonable for Deputy Claridge not to investigate

ownership of the telephone whose number Mr. Wallace had called. The prosecutor

stated:

                 Detective Claridge didn't need to do that, because he already was
          familiar with Mony Leap. She had past contacts with the Sheriffs Office.
          And when he ran the search and reviewed past records, he saw, oh, this is
          one of her phone numbers.

RP (June 27, 2012) at 430. In context, it appears that the prosecutor was not arguing that

the deputy had spoken with Ms. Leap and was familiar with her voice, but only that he

was aware of her prior encounters with his department that led him to suspect from the

content of the calls that she was the female voice. See, e.g., RP (June 26, 2012) at 271-72

(testimony from the detective that while he had not spoken to Ms. Leap on the phone

before listening to the recorded calls, he did have information about her). Again, Mr.

Wallace fails to show misconduct. Moreover, and as was pointed out by the trial court in

denying the tardy objection to the prosecutor's argument, the jury had been instructed,

verbally and in writing, that the lawyers' arguments were not evidence and that it was to

disregard any statement or argument that was not supported by the evidence.

          Appearance a/Fairness. Mr. Wallace next contends that the trial judge should

have recused himself based on his prior representation of Ms. Leap in a separate matter

that was tried in December 2011. Nothing in the record indicates that the judge

previously represented Ms. Leap. Because any error in failing to recuse depends upon


                                              17 

No. 32156-8-III
State v. Wallace


proof outside the record, Mr. Wallace's remedy is to seek relief by personal restraint

petition. State v. Norman, 61 Wn. App. 16,27-28,808 P.2d 1159 (1991).

       Affirmed.

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

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 




Brown, 1.



Lawrence-Berrey, 1.




                                            18 

