                                                                           FILED 

                                                                        JULY 24, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 31244-5-111
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
DAVID WAYNE HALLS,                            )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       BROWN, J. - David W. Halls appeals his second degree assault - domestic

violence conviction. He contends his conviction lacks sufficient supporting evidence

because the State failed to prove he intentionally meant to harm his girl friend. He

further contends the trial court erred in accepting his jury waiver, allowing him to

represent himself at trial, and in failing to conduct a competency hearing. Finally, Mr.

Halls contends he received ineffective assistance of counsel. We reject Mr. Halls'

contested contentions and find no merit in his pro se statement of additional grounds for

review (SAG). But considering RCW 9.94A.701, we accept the State's error concession

regarding the trial court's error in sentencing Mr. Halls to a variable term of community

custody. See State v. Franklin, 172 Wn.2d 831,836,263 P.3d 585 (2011) ("a court may

no longer sentence an offender to a variable term of community custody [that is]

contingent on the amount of earned release but instead, it must determine the precise
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    No. 31244-5-111
    State v. Halls


    length of community custody at the time of sentencing."). Accordingly, we affirm Mr.

    Halls' conviction and remand for the limited purpose of correcting his judgment and

    sentence to remove the offending community custody condition.

                                             FACTS

          According to the State's evidence, during an argument between Mr. Halls and his

    live-in girl friend, Rhonnda Harshman, Mr. Halls grabbed Ms. Harshman by the throat

    and pushed her onto the bed. He then picked up a glass candleholder and threw it at

    Ms. Harshman, hitting her on the head and causing a laceration. Ms. Harshman was

    transported to the hospital where she received stitches to close the wound.

          The State charged Mr. Halls with second degree assault - domestic violence. At

    his arraignment, the court informed him of the charge against him and his standard

    range sentence of 63 to 84 months based on his criminal history. The State later

    amended the information to include "COUNT 11- ASSAULT IN THE THIRD DEGREE."

    Clerk's Papers (CP) at 6. This charge included a domestic violence allegation.

          Mr. Halls' trial counsel withdrew five days before trial and the court appointed

    new counsel, who requested a continuance. Mr. Halls declined to waive his speedy trial

    rights and requested self-representation during the following colloquy:

                         THE COURT: Do you know what you're doing when
                 you represent yourself?
                         MR. HALLS: Partially.
                         THE COURT: Well, do you think you need the
                 assistance of counsel to do with correctly?
                         MR. HALLS: Um, on my point, no, I don't think so. I'd
                 like to switch from jury trial to have a bench trial and be



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No. 31244-5-111
State v. Halls


              ready for Monday, and I wish to take that upon myself and
              do it.
                      THE COURT: You want to do it a nonjury trial?
                      MR. HALLS: Yes. I would like to have bench trial on
              Monday.
                      THE COURT: Now I have two things to address
              formally on the record. Let me - are you able - how far did
              you go in school?
                      MR. HALLS: Probably about the 9th grade.
                      THE COURT: Are you able to read and write?
                      MR. HALLS: Yes.
                      THE COURT: Do you understand the maximum
              sentence that you're exposed to is ten years in prison and a
              $20,000 fine on this charge?
                      MR. HALLS: OK, yes.
                      THE COURT: Do you understand the Court will not
              assist you? You'll be expected to handle all your own legal
              affairs without assistance from the Court?
                      MR. HALLS: Yes.
                      THE COURT: During the trial?
                      MR. HALLS: Yes.
                      THE COURT: Do you think you're capable of doing
      that?
                    MR. HALLS: Yes.
                    THE COURT: And have you been in court before?
              Have you gone to trial before? Have you been through the
              process?
                    MR. HALLS: I have been to trial once[.]

Report of Proceedings (RP) (Apr. 4, 1012) at 8. The court then stressed that based on

Mr. Halls' multiple prior felonies, the State may ask for an exceptional sentence upward

of 120 months. Mr. Halls responded that he understood and still did not want counsel.

      The court later asked, "Have you ever had a stay at Eastern State Hospital or

any other mental health facility?" RP (Apr. 4,2012) at 14. Mr. Halls responded,

"Eastern and Western and both competent." Id. Mr. Halls then stated he had never

been put in a mental health institution after a competency evaluation. The court then


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    j   No. 31244-5-111
        State v. Halls

j       found Mr. Halls was "competent to make this decision and represent himself and waive

        his right to trial -- or to counsel at trial." RP (Apr. 4, 2012) at 15. The court stated, "He's

,

I
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        had the opportunity to speak with counsel, and he's making that choice I believe freely

        and voluntarily and knowingly. And so I'll consider his right to counsel waived." Id.


I 


,
               Regarding the jury waiver, the following colloquy occurred on the record:

                                  THE COURT: ... Now a jury trial, do you know the
                        difference between a jury and a nonjury trial?

I

!
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                                  MR. HALLS: Urn, my say on it would be I'd have 12
                        in the box and one outside of it, 13, and then for a bench
                        trial it would just be the prosecutor, me, and a judge.
I
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                                 THE COURT: Well, you seem to notice the
                        difference. Had you talked over that strategy with your
                        attorney before making the decision?
                                  MR. HALLS: No. I've made that by myself and set 

               that up. 

                                  THE COURT: And do you think you know what
                        you're doing? You have a reason for that? I don't want to
                        necessarily know what that is, but do you have a reason for
                                  making that decision?
                                  MR. HALLS: I just don't want to waste no more
                        court's time on this.
                                  THE COURT: Do you realize you'll have a jury trial
                        on the 9th, the same day you would have judge trial?
                                  MR. HALLS: That's fine. I realize that.
                                  THE COURT: And you still want to go jury or
              nonjury? 

                                  MR. HALLS: Nonjury. 

                                  THE COURT: I'll find that he's waived his right to a 

              jury trial freely and voluntarily and knowingly. Appears to 

              understand what it is, and he's been in the court system a lot, and 

              I'm sure he does understand. 


        RP (Apr. 4, 2012) at 15-16. Mr. Halls then signed a waiver to his right to a jury trial.

               During the bench trial, a witness at the house on the night in question testified

        Ms. Harshman and Mr. Halls were arguing and that Mr. Halls grabbed Ms. Harshman by


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No. 31244-5-111
State v. Halls


the throat and threw her on the bed. The witness testified Mr. Halls picked up

"nunchucks" in an attempt to scare her. RP (Apr. 9, 2012) at 49. Mr. Halls next picked

up a candleholder and threw it at Ms. Harshman's head.

       Ms. Harshman testified Mr. Halls picked up a candleholder and threw it at her

head, causing a large cut that required medical attention. A picture of Ms. Harshman's

wound was admitted into evidence. The court noted a scar was visible on her forehead.

Mr. Hall denied throwing the candleholder in his defense.

      The court found Mr. Halls "picked up a glass candle holder ... and threw it at Ms.

Harshman." CP at 41. The court then found Mr. Halls guilty of second degree assault

- domestic violence. The court stated, "Sir, the State charged you with Assault in the

Second Degree, or basically in [the] alternative, Assault in the Third Degree for the

same acts. I found that the State met its burden on the Assault in the Second Degree,

so you're guilty of that. And Count II will be dismissed because you only get found

guilty of one count." RP (Apr. 9, 2012) at 82.

      Mr. Halls accepted counsel for sentencing. Counsel asked for a competency

evaluation. The court granted the motion and stayed proceedings, ordering Eastern

State Hospital (ESH) to conduct a forensic mental health evaluation of Mr. Halls'

competency. ESH found Mr. Halls did not have a mental disease or defect and had the

capacity to understand the proceedings against him and assist counsel. The court

entered a competency order without holding an evidentiary hearing.




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No. 31244-5-111
State v. Halls


       The court sentenced Mr. Halls to 63 months (the low-end of a standard range

sentence) and ordered community placement "for the longer of: (1) the period of early

release. RCW 9.94A.728(1)(2); or (2) the period imposed by the court [18 months]."

CP at 49. Mr. Halls appealed.

                                         ANALYSIS

                                  A. Evidence Sufficiency

       The issue is whether sufficient evidence supports Mr. Halls' conviction for second

degree assault - domestic violence. He contends the State's evidence was insufficient

to prove he intentionally assaulted Ms. Harshman. "In a criminal prosecution, due

process requires the State to prove every element of the charged crime beyond a

reasonable doubt." State v. Smith, 155 Wn.2d 496, 502, 120 P.3d 559 (2005).

       Evidence is sufficient if, when viewed in the light most favorable to the

prosecution, it permits any rational trier of fact to find the essential elements of the crime

beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068

(1992). "A claim of insufficiency admits the truth of the State's evidence and all

inferences that reasonably can be drawn therefrom." Id. Circumstantial and direct

evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99

(1980). Because it is the fact finder's responsibility to resolve credibility issues and

determine the weight of the evidence, we defer to the trier of fact on issues of conflicting

testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.

Camarillo, 115 Wn.2d 60,71,794 P.2d 850 (1990).



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    No. 31244-5-111
f   State v. Halls
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I          To prove second degree assault - domestic violence, the State had to prove Mr.

    Halls "intentionally" assaulted Ms. Harshman and thereby recklessly inflicted substantial

    bodily injury. RCW 9A.36.021 (1)(a); RCW 10.99.020(5). Intent may be inferred from

    the defendant's conduct. De/marter, 94 Wn.2d at 638. Intent evidence includes the

    manner and act of inflicting the wound, the nature of the prior relationship, and any

    previous threats. State v. Mitchell, 65 Wn.2d 373, 374, 397 P.2d 417 (1964).

           The record shows Ms. Harshman and Mr. Halls were arguing. Mr. Halls grabbed

    her by the throat and then threw her on the bed. He then picked up "nunchucks" to

    scare her. RP (Apr. 9, 2012) at 49. Still angry, Mr. Halls grabbed a candleholder and

    threw it at Ms. Harshman, causing substantial bodily injury. Pictures and Ms.

    Harshman'S physical appearance support the live testimony. While Mr. Halls disputes

    this evidence, credibility determinations are for the trier of fact. Camarillo, 115 Wn.2d at

    71. Therefore, viewing the evidence in the light most favorable to the State, sufficient

    evidence supports Mr. Halls' second degree assault - domestic violence conviction.

                                              B. Waivers

           The issue is whether the trial court erred in accepting Mr. Halls' waivers to his

    right to a jury trial and his right to the assistance of counsel at trial.

           First, Mr. Halls contends the trial court erred by accepting his jury waiver without

    proof he had knowingly, intelligently, and voluntarily waived his jury trial right. The

    federal and state constitutions guarantee the right to a jury trial. U.S. CONST. amend VI;

    CONST. art. I, § 21. The right may be waived, but it must be done so voluntarily,



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No. 31244-5-111
State v. Halls


knowingly, and intelligently. City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d

957 (1984). The State has the burden to demonstrate that the waiver is valid. State v.

Wicke, 91 Wn.2d 638, 645,591 P.2d 452 (1979). We review the validity of a jury trial

waiver de novo. State v. Ramirez-Dominguez, 140 Wn. App. 233, 239, 165 P.3d 391

(2007). A defendant's waiver of his or her jury trial right must be made knowingly,

intelligently, voluntarily, and without improper influences. State v. Stegall, 124 Wn.2d

719,724-25,881 P.2d 979 (1994). A written jury trial waiver "is strong evidence that the

defendant validly waived the jury trial right." State v. Pierce, 134 Wn. App. 763, 771,

142 P.3d 610 (2006). Additionally, we consider whether the trial court informed the

defendant of his or her jury trial right. Id.

       Mr. Halls signed a written waiver of his right to a jury trial attesting he was notified

of his right and chose to waive it. Additionally, the record shows the trial judge

discussed the difference between a jury and nonjury trial with Mr. Halls and notified him

of his right to a jury trial. Mr. Halls stated that he understood and wanted to waive his

right. Under Pierce, this is strong evidence of a valid waiver, and we so conclude.

       Second, Mr. Halls contends the trial court erred by accepting his assistance of

counsel waiver without proof he knowingly, intelligently, and voluntarily waived his right.

Specifically, Mr. Halls argues he was not adequately informed of the charges against

him to make a proper waiver of his right to counsel. Like the right to a jury trial, the right

to counsel is guaranteed under both the state and federal constitutions. U.S. CONST.

amends. VI & XIV; WASH. CONST. art. I, § 22. A criminal defendant, however, has the



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     No. 31244-5-111
     State v. Halls


     right to proceed without counsel when he or she voluntarily and intelligently elects to do

     so. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

     We review a request for a waiver of the constitutional right to counsel for abuse of

     discretion. 1 State v. Madsen, 168 Wn.2d 496,504,229 P.3d 714 (2010). Discretion is

     abused if it is exercised without tenable grounds or reasons. State ex rei. Carroll v.
i
     Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). 


I
          In order to exercise the right to self-representation, a defendant's request must


I    be unequivocal, knowing, voluntary; intelligent, and timely. Acrey, 103 Wn.2d at 208­

     09. Courts should indulge every reasonable presumption against finding that a

     defendant has waived the right to counsel. State v. Chavis, 31 Wn. App. 784, 789, 644

     P.2d 1202 (1982). Our Supreme Court "strongly recommend[s)" a colloquy between the

     trial court and defendant as the best means of assuring that the defendant understands

     the risks of self-representation. Acrey, 103 Wn.2d at 211. Such a waiver must be

     prefaced on the trial court "informing the defendant of the nature and classification of

     the charge, the maximum penalty upon conviction, and that technical rules exist which




            1 Federal and other state courts apply a de novo standard of review to a criminal
     defendant's waiver of his Sixth Amendment right to assistance of counsel. United
     States v. McBride, 362 F.3d 360, 365-66 (6th Cir. 2004) (discussing the trend in the
     Sixth Circuit for having two different standards of review for the counsel waiver issue
     and noting that the 9th, 10th, and 11th Circuits all apply a de novo standard of review);
     State v. Watson, 900 A.2d 702, 712-13 (Me. 2006) (while noting that North Dakota,
     Michigan, Iowa, and Colorado apply a de novo standard of review, the court concluded
     that Maine courts should apply a bifurcated standard of review for counsel waiver,
     reviewing any express or implicit factual findings for clear error, and the legal
     conclusions de novo).


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No. 31244-5-111
State v. Halls


will bind defendant in the presentation of his case." Id.

       Mr. Halls argues the trial court abused its discretion when it granted his request

to waive counsel because he was not adequately informed of the charges against him.

Initially, Mr. Halls discusses a potential witness tampering charge. This charge,

however, was never included in the information nor is it part of the judgment and

sentence that is currently on appeal. Thus, his argument is unhelpful in analyzing his

waiver argument.

       Mr. Halls next argues the court failed to advise him that he was charged with

second degree assault - domestic violence during the colloquy. Relying on State v.

Buelna, 83 Wn. App. 658, 922 P.2d 1371 (1996), he argues this is an abuse of

discretion. In Buelna, the defendant "at least three times" stated that he "did not

understand the charges." Id. at 660. The court, nevertheless, allowed him to proceed

pro se and was later convicted as charged. Division Two of this court reversed, holding

"Buelna's waiver of his right to the assistance of counsel was an uninformed and

unintelligent waiver, because Buelna said that he did not understand the charges and

because the record does not establish that Buelna was properly advised of the nature

and seriousness of the charges and the possible penalties." Id. at 661.

       But here, unlike in Buelna, Mr. Halls was informed of the potential penalty he

faced (up to 10 years' incarceration and a $20,000 fine), and expressed no confusion

about the charges. Although the court did not identify the charge by name during its

colloquy with Mr. Halls, the specific charge was discussed previously on the record at



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I    No. 31244-5-111
     State v. Halls


     Mr. Hall's arraignment hearing. The court may look beyond the colloquy to find

     evidence on the record that shows the defendant's awareness of the consequences of

     self-representation. Acrey, 103 Wn.2d at 211. Given all, Mr. Halls knowingly,

     intelligently, and voluntarily waived his right to counsel. The trial court did not abuse its

     discretion in finding likewise.

                                           C. Competency

            The issue is whether the trial court erred in not conducting an evidentiary hearing

     regarding Mr. Halls' competency. Mr. Halls contends an evidentiary hearing should

     have been conducted following the admittance of ESH's report.

            Both the due process clause of the United States Constitution and RCW

     10.77.050 forbid a criminal trial of an incompetent defendant. Pate v. Robinson, 383

     U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); 'In re Pers. Restraint of Fleming,

     142 Wn.2d 853, 861, 16 P.3d 610 (2001). In Washington, a defendant is competent if

     he is capable of understanding the nature of the proceedings and charges against him

     and is capable of assisting in his own defense. RCW 10.77.010(14); State v. Lord, 117

     Wn.2d 829, 900, 822 P.2d 177 (1991). When an evidentiary basis exists creating doubt

     about the defendant's competency to stand trial, '''then due process requires that the

     trial court resolve that doubt.'" State v. Johnston, 84 Wn.2d 572, 576, 527 P.2d 1310

     (1974) (quoting State v. Peterson, 90 Wash. 479,482, 156 P. 542 (1916)). RCW

     10.77.060(1) requires that a competency hearing be held '''[w]henever ... there is

     reason to doubt [the defendant's] competency.'" Lord, 117 Wn.2d at 901 (quoting RCW



                                                  11 

No. 31244-5-111
State v. Halls


10.77.060)). Because Mr. Halls did not raise an insanity defense, "a hearing is required

only if the court makes a threshold determination that there is reason to doubt the

defendant's competency." Lord, 117 Wn.2d at 901.

       No reason is shown to doubt Mr. Halls' competency to require an evidentiary

hearing. ESH professionals found Mr. Halls did not have a mental disease or defect

and had the capacity to understand the proceedings against him. Mr. Halls did not

dispute this finding. Without more, the court properly entered a competency order

without holding an evidentiary hearing. Mr. Halls fails to show a due process violation.

At this juncture, we note Mr. Halls, pro se, challenges the court's competency

determination in his SAG. But, appellate counsel adequately addressed this issue in

the direct appeal. Therefore, further discussion on this issue is unwarranted. See RAP

10.10(a) (providing the purpose of an SAG is to "identify and discuss those matters

which the defendanUappeliant believes have not been adequately addressed by the

brief filed by the defendanUappellant's counsel").

                                D. Amended Information

       Mr. Halls contends the amended information should be remanded for correction

because it did not expressly state that the third degree assault charge was an

alternative charge .

      . The purpose of the information is to notify the accused of the offense charged.

State v. Powell, 34 Wn. App. 791, 793, 664 P.2d 1 (1983). An existing information may

be amended to include an alternative means of committing a crime formerly charged.



                                            12 

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J   No. 31244-5-111
    State v. Halls
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I   Id. Here, the State amended the information to include third degree assault. While the

I
I
    information did not expressly state it was an alternative charge, the record shows the

    trial judge expressly informed Mr. Halls, "The State charged you with Assault in the
J
    Second Degree, or basically in [the] alternative, Assault in the Third Degree for the

    same acts. . . . And Count II will be dismissed because you only get found guilty of one

    count." RP (April 9, 2012) at 82. This is suffiCient; remand is unnecessary.

          Affirmed and remanded for the limited, indicated action.

          A majority of the panel has determined 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.




                                                       Brown, A.C.J.         .
    WE CONCUR:



                                                         ~                 (f.
                                                       Fearin~         l




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