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     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON S                               wbJ
                                                                                         =52
STATE OF WASHINGTON,                                                          cr

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                                               No. 71964-5-1                  rv>

                    Respondent,
                                                                              3SB>
      v.                                       DIVISION ONE

ARIEL STEVEN WILLIAMS,                         UNPUBLISHED OPINION        CO         o     *~'
                                                                          CO         ;~ <;


                    Appellant.                 FILED: July 21,   2014



      Leach, J. — Ariel Williams appeals his conviction for domestic violence

felony harassment while armed with a deadly weapon and two counts of

domestic violence assault in the fourth degree. He challenges the sufficiency of

the evidence to support his conviction for felony harassment and the offender

score the court used to sentence him.     In a statement of additional grounds,

Williams claims that he received ineffective assistance of counsel.     Because


Williams shows no error, we affirm.

                                  Background

      Williams lived with his girl friend      Debra Mason in a townhouse

condominium in Pierce County.1 Helen Tseggai2 also lived at this residence.




      1 Mason testified that at that time, she maintained most of her personal
property at the condo and would spend about one night per week there, although
she was "actually living" at her grandmother's home in Des Moines, Washington.
      2 Tseggai is also known as Helen Asefaw.
No. 71964-5-1/2




        On August 24, 2012, Mason went to the condo to confront Williams about

an unpaid cell phone bill. Mason and Williams got into an argument.

        At some point, Tseggai told Mason that Williams "had grabbed her butt."

Mason    confronted Williams about this statement.         After Williams accused


Tseggai of lying, he and Tsaggai went into Tsaggai's room and began to argue.

Williams pushed Tseggai onto the bed and said, "Bitch, if I wanted to have sex

with you I can do it any time." Williams jumped on her on the bed. Mason tried

to stop the fight, but Williams held down Tseggai and began to punch her

"everywhere, nonstop."

        Mason tried to grab Williams's arm and yelled, "Please stop. Please stop."

Tseggai maneuvered to the other side of the bed. Williams grabbed Mason by

the hair, pulled her down onto the bed, and "squished" her face.

        Tseggai grabbed an empty vodka bottle from the top of the dresser and

threatened to hit Williams over the head with it. Williams took the bottle away

from Tseggai.    Williams chased Tseggai around the room, and then the two

began to argue again.

        While Williams and Mason fought, Tseggai took a kitchen knife from her

dresser and put it on top of the dresser. Williams picked up the knife and waved

it around. Williams then threw the knife onto the floor.

        At some point, Williams choked Tseggai, causing her to gag. Mason tried

to stop him, but he pushed her down onto the floor and put his foot on her, while

continuing to choke Tseggai. Mason yelled, "Stop it. Stop it. Please just stop it."


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Williams stopped choking Tseggai after Mason grabbed Wiliams's "private area"

and twisted it.


         Williams ran into his room.   Tseggai and Mason remained in Tseggai's

room and shut the door. Tseggai wanted to call the police, but her cell phone did

not work to make phone calls, and Mason's cell phone was in Williams's room.

When Mason went to get her cell phone from Williams's room, he refused to give

her the phone and threatened to "knock [her] out." Later, Mason heard Williams

walk upstairs and retrieved her cell phone from his room.

         Tseggai sent a text message to her boyfriend, asking him to come to the

condo.     After Tseggai's boyfriend arrived, Tseggai ran outside.     Mason called

911.   Williams ran away.      He was not at the condo when the police arrived.

Tseggai left the condo with her boyfriend.

         About one hour after the police left, Williams returned to the condo and put

his belongings into duffel bags. Mason called the police, who arrested Williams.

         On August 27, 2012, the State charged Williams with four counts: felony

harassment in counts I and II and assault in the fourth degree in counts III and

IV. The information named Tseggai as the victim in counts I and III and Mason

as the victim in counts II and IV. The State alleged a deadly weapon sentencing

enhancement in counts I and II and also alleged that each of the four counts was

"a domestic violence incident as defined in RCW 10.99.020."




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No. 71964-5-1/4




       At trial, after the State rested, Williams moved to dismiss counts I and II,

the felony harassment counts, for insufficient evidence of a threat to kill. The

court denied this motion.


       The jury found Williams guilty of counts I, III, and IV—felony harassment

against Tseggai and fourth degree assault against both Tseggai and Mason.

The jury returned special verdicts finding that for these counts, Williams and

Mason and Williams and Tseggai were "members of the same family or

household." The jury also returned a special verdict finding that Williams was

armed with a deadly weapon when he committed felony harassment against

Tseggai. The jury found Williams not guilty of count II, felony harassment against

Mason.


       At sentencing, the court accepted the State's offender score calculation of

4.   Williams did not challenge this offender score calculation but refused to

stipulate to it. The court imposed a standard range sentence.

       Williams appeals.

                                     Analysis

       Williams first claims that insufficient evidence supported his conviction for

felony harassment.     Sufficient evidence supports a conviction only if, when

viewed in the light most favorable to the State, any rational trier of fact could

have found the elements of the crime beyond a reasonable doubt.3 For this



       3 State v. Maupin, 63 Wn. App. 887, 892, 822 P.2d 355 (1992) (citing
State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980)).
No. 71964-5-1/5




analysis, "[circumstantial evidence is just as reliable as direct evidence."4 A

challenge to the sufficiency of the evidence admits the truth of the State's

evidence.5

       A defendant is guilty of harassment if, without lawful authority, the person

knowingly threatens to cause bodily injury immediately or in the future to the

person threatened or any other person.6 The defendant must also, by words or

conduct, place the person threatened in reasonable fear that he will carry out the

threat.7    A person who harasses another is guilty of a class C felony if the

harassment occurs "by threatening to kill the person threatened or any other

person."8

       RCW 9A.46.020 prohibits only a "true threat," which 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 expression of

intention to inflict bodily harm upon or to take the life' of another."9 "The speaker

of a 'true threat' need not actually intend to carry it out.    It is enough that a




       4 State v. Frawlev, 140 Wn. App. 713, 721-22, 167 P.3d 593 (2007) (citing
State v. Myers, 133 Wn.2d 26, 38, 941 P.2d 1102 (1997)), review granted, 176
Wn.2d 1030(2013).
       5 State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
       6RCW9A.46.020(1)(a)(i).
       7RCW9A.46.020(1)(b).
       8 RCW 9A.46.020(2)(b)(ii).
       9 State v. Barnes, 158 Wn. App. 602, 610, 243 P.3d 165 (2010) (alteration
in original) (internal quotation marks omitted) (quoting State v. Kilburn, 151
Wn.2d 36, 43, 84 P.3d 1215 (2004)).
No. 71964-5-1/6




reasonable speaker would foresee that the threat would be considered

serious."10

       First, Williams argues that the State failed to present sufficient evidence of

a true threat. At trial, Mason testified that as Williams waved the knife, he said

"something like 'I could kill you both right now.        I could kill you right now,'"

although he did not try to stab them. But, after the incident, Mason told a police

officer that Williams said to Mason and Tseggai, "I'll kill you, and I don't care if I

go to prison."

       A rational trier of fact could find that a reasonable speaker would foresee

that either of Williams's comments would be considered serious.         He made the

threat after assaulting the women and while waving a knife. Therefore, the State

presented sufficient evidence that Williams knowingly threatened to kill Tseggai.

       Williams also contends that the State failed to prove he placed Tseggai in

reasonable fear that he would carry out any threat to kill. Tseggai testified that

Williams waved the knife "like he was going to hurt us" and that she thought

"[tjhat I was going to die." Although Williams at no point tried to stab Tseggai, the

facts that he assaulted her, threatened her, and waved around the knife

constitute sufficient evidence that his words or conduct placed her in reasonable

fear that Williams would carry out his threat to kill.




       10 State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010) (citation
omitted) (citing Kilburn, 151 Wn.2d at 46).

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No. 71964-5-1/7




          Williams   also   claims,   "The   court erred   in   counting   the   current

misdemeanor assaults as 'prior' offenses when they did not meet that definition."

We review de novo a sentencing court's offender score calculation.11

          "[A] sentencing court acts without statutory authority when it imposes a

sentence based on a miscalculated offender score."12 RCW 9.94A.525(21)(c)

states,


          If the present conviction is for a felony domestic violence offense
          where domestic violence as defined in RCW 9.94A.030 was plead
          and proven . . .

          Count one point for each adult prior conviction for a repetitive
          domestic violence offense as defined in RCW 9.94A.030, where
          domestic violence as defined in RCW 9.94A.030 was plead and
          proven after August 1, 2011.

          RCW 9.94A.030(20) states, "'Domestic violence' has the same meaning

as defined in RCW 10.99.020 and 26.50.010."            RCW 10.99.020(5)(d) defines

"domestic violence" to include assault in the fourth degree "when committed by

one family or household member against another."                A "repetitive domestic

violence offense" is any "[djomestic violence assault that is not a felony offense

under RCW 9A.36.041."13

          The jury found Williams guilty of felony harassment, a class C felony.14

For the assault counts, the State alleged in the information that the offenses

involved "a domestic violence incident as defined in RCW 10.99.020." The jury


       11 State v. Moeurn, 170 Wn.2d 169, 172, 240 P.3d 1158 (2010) (citing
State v. Berqstrom. 162 Wn.2d 87, 92, 169 P.3d 816 (2007)).
          12 State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994).
          13RCW9.94A.030(41)(a)(i).
          14 RCW 9A.46.020(2)(b)(ii).
No. 71964-5-1/8




returned special verdicts finding that the State proved domestic violence for all

three counts.   The fourth degree assault counts were not felony offenses.15

Because the jury convicted Williams of domestic violence felony harassment,

"domestic violence" has the same meaning in both RCW 10.99.020 and RCW

9.94A.030, the domestic violence assault offenses were not felonies, and

Williams was an adult when he committed the assaults, we conclude that RCW

9.94A.525(21)(c) applied to Williams's offender score calculation.

       Further, RCW 9.94A.589(1)(a) required the court to count the assault

convictions as prior convictions when calculating Williams's offender score. This

statute provides that "whenever a person is to be sentenced for two or more

current offenses, the sentence range for each current offense shall be

determined by using all other current and prior convictions as if they were prior

convictions for the purpose of the offender score."16           Because the court

sentenced Williams for two or more current offenses, it properly counted the

fourth degree assault counts as "prior convictions" and added one point for each

of these counts when calculating Williams's offender score for the felony

harassment count.




       15SeeRCW9A.36.041(2).
       16 RCW 9.94A.589(1)(a). This provision does not apply to serious violent
and certain firearm offenses. It also states that "if the court enters a finding that
some or all of the current offenses encompass the same criminal conduct then
those current offenses shall be counted as one crime." The parties do not
dispute that none of the convictions was for a serious violent or firearm offense.
The parties also do not dispute that none of Williams's convictions constituted the
same criminal conduct.


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No. 71964-5-1/9




       Williams relies upon RCW 9.94A.525(1) in arguing that the assault

convictions were "current—not 'prior'—convictions."        This provision defines a

prior conviction as a conviction that "exists before the date of sentencing for the

offense for which the offender score is being computed. Convictions entered or

sentenced on the same date as the conviction for which the offender score is

being computed shall be deemed 'other current offenses' within the meaning of

RCW 9.94A.589."17      But, as explained above, RCW 9.94A.589 required the

sentencing court to count the assault convictions as prior convictions when

calculating Williams's offender score.

       In a statement of additional grounds, Williams asserts that he received

ineffective assistance of counsel based upon (1) "failure to dismiss," (2) "failure to

prepare," (3) "failure to submit exculpatory evidence," (4) "failure to disallow self-

authenticating evidence," and (5) "failure to impeach witnesses." We hold that

Williams fails to establish ineffective assistance of counsel.

       We review ineffective assistance of counsel claims de novo.18 To prevail,

a defendant must show both deficient performance and resulting prejudice.19

Counsel's performance is deficient if it fell below an objective standard of

reasonableness.20     Our scrutiny of defense counsel's performance is highly




       17RCW9.94A.525(1).
      18 In re Pers. Restraint of Brett, 142 Wn.2d 868, 873, 16 P.3d 601 (2001).
      19 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
      20 State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997).
No. 71964-5-1/10




deferential, and we employ a strong presumption of reasonableness.21 "To rebut

this presumption, the defendant bears the burden of establishing the absence of

any 'conceivable legitimate tactic explaining counsel's performance.'"22             To

establish prejudice, a defendant must show a reasonable probability that the

trial's   outcome     would    have   been    different   absent   counsel's   deficient


performance.23       Failure on either prong of the test defeats an ineffective

assistance of counsel claim.24

          Williams claims, "If my counsel had performed his duty by following

through with an already requested motion for dismissal based on the fact that the

alleged victim/witness still had not shown up when given plenty opportunity, I

would not have went to trial; thereby, have been found guilty of felony

harassment."


          After the State rested, Williams moved to dismiss the felony harassment

counts for insufficient evidence. At no point did Williams move to dismiss on the

alleged basis. He cannot raise for the first time on appeal the trial court's failure

to dismiss based upon a witness's failure to appear.25               And he fails to

demonstrate that the court would have granted a motion to dismiss if made on

this basis or that the outcome of the proceedings would have been different.

       21 Strickland, 466 U.S. at 689; State v. McFarland, 127 Wn.2d 322, 335-
36, 899P.2d 1251 (1995).
       22 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)).
       23 State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987) (quoting
Strickland, 466 U.S. at 694).
          24 Strickland, 466 U.S. at 697.
          25 RAP 2.5(a).

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No. 71964-5-1/11




       Williams also alleges that he received ineffective assistance of counsel

because his attorney "failed to call any of the witnesses on my behalf[,] not even

for investigative purposes." "The decision whether to call a witness is ordinarily

a matter of legitimate trial tactics and will not support a claim of ineffective

assistance of counsel.'"26        The   record does   not demonstrate otherwise.

Therefore, this argument fails.

       Next, Williams asserts that he received ineffective assistance of counsel

because his attorney did not submit "exculpatory evidence i.e. 911 tapes."

Because matters of trial strategy or tactics do not establish deficient

performance27 and this argument also relies largely upon facts or evidence

outside the record,28 we reject this argument.

       Williams further claims that counsel was ineffective because he "failed to


disallow self-authenticating evidence." Although Williams is not required to cite

to the record or to authority in his statement of additional grounds, he must

"'inform the court of the nature and occurrence of alleged errors.'"29 Because

Williams does not develop this claim sufficiently to permit review, we do not

address it.


       26 State v. Statler, 160 Wn. App. 622, 636, 248 P.3d 165 (2011) (quoting
State v. Kolesnik, 146 Wn. App. 790, 812, 192 P.3d 937 (2008)).
       27 State v. Calvin, _Wn. App._, 316 P.3d 496, 508 (2013) (quoting State
v. Studd, 137 Wn.2d 533, 551, 973 P.2d 1049 (1999)), petition for review filed,
No. 89518-0 (Wash. Nov. 12, 2013).
       28 Calvin, 316 P.3d at 508 (citing State v. Alvarado, 164 Wn.2d 556, 569,
192 P.3d 345 (2008)).
       29 State v. Thompson, 169 Wn. App. 436, 493, 290 P.3d 996 (2012)
(quoting RAP 10.10(c); State v. Meneses, 149 Wn. App. 707, 716, 205 P.3d 916
(2009)), review denied, 176 Wn.2d 1023 (2013).


                                         -11-
No. 71964-5-1/12




       Finally, Williams argues that his attorney failed to impeach Tseggai,

asserting, "He never asked me what I thought of her quickly written interview nor

did he take a recess to challenge her very first words as to how we met and her

supposed job at Olive Garden." Any alleged failure to impeach presents a matter

of trial strategy that did not amount to ineffectiveness. And Williams does not

show that any error affected the outcome of his trial.

                                    Conclusion


       Because the State presented sufficient evidence that Williams made a

"true threat" and that he placed Tseggai in reasonable fear that he would carry

out any threat to kill, Williams does not show that the court miscalculated his

offender score, and Williams fails to establish that he received ineffective

assistance of counsel, we affirm.




WE CONCUR:




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