                                                                  FILED 

                                                              OCTOBER 16, 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 

                              DMSION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 31390-5-III
                       Respondent,            )
                                              )
      v.                                      )
                                              )
AHMIN R. SMITH,                               )         UNPUBLISHED OPINION
                                              )
                       Appellant.             )

       FEARING, J. -    New technology creates new ways to terrorize. Text messaging is

one such technology.

       A jury convicted Ahmin Smith of four counts of felony harassment with domestic

violence enhancements for threatening to kill his wife, Crystal Miller-Smith, and the

wife's father, mother, and stepmother. Smith asks this court to reverse his convictions

and dismiss the charges, contending the evidence supporting his convictions is

insufficient. In the alternative, he asks for a new trial arguing that impermissible

testimony and inadmissible evidence improperly swayed the jury. Finally, Smith assigns

error to the trial court expressing concern for his competency but failing to hold a

competency hearing. We afftrm Ahmin Smith's convictions.
No. 31390-5-III
State v. Smith


                                              FACTS

        Ahmin Smith's convictions stem from a slew oftext messages he sent his

estranged wife, Crystal Miller-Smith, during the evening of August 12,2012.

       In late July 2012, Crystal Miller-Smith moved out of the home she shared with her

husband, Ahmin Smith, because she feared for her and her child's safety. Over the next

weeks, Smith attempted to reconcile with Miller-Smith, vacillating between seeking

forgiveness and threatening to "beat her ass." Report of Proceedings (RP) at 381. As the

weeks passed, Smith increasingly sent text messages to Miller-Smith's iPhone, so

frequent that his messages filled her inbox. His textative behavior required her to delete

messages to free space for new ones and led her to mute her phone's ringer when she

retired to bed.

       In the evening of August 12, Crystal Miller-Smith prepared, at her aunt's house,

for a Native American naming ceremony. She quieted the ringer to her phone. When she

checked her phone around 7:00 p.m., she discovered more than 20 new messages from

Ahmin Smith. The messages shocked and upset her. A sample of the unedited text

messages she received include:

           • 	 "If i dont cuI will kill your dad quick test it he dead fuck." Ex. 1.
           • 	 "Ist it I am going 2 kill your dad & mom n one night probably kill
               your grandma 2 hlp her dont fuck with me" Ex. 3.
           • 	 "U have 24hrs then bodies will drop dad first I will kill him tbn
               grandma well let deb live so she can tell." Ex. 7.


                                              2

No. 31390-5-II1
State v. Smith


          • 	 "Fuck it on my way." Ex.8.
          • 	 "Hours getting short aunty dwn street bout 2 murk your whole fam 4
              one I will kill i need exaple I will." Ex. 10.
          • 	 "I kill literally ." Ex. 17.
          • 	 "Bout 2 murk hin & wife Im going 2 kill dog & spread entern" Ex.
              19.
          • 	 "Bye 10 am your whole family will b dead im leaving." Ex. 20.
          • 	 "I promise leaving now will enjoy cutting throat." Ex. 21.
          • 	 "Bout 2 hear momy & daddies last words they will suffer & beg me
              2 end it 101." Ex. 22.
          • 	 "I am? Litrally going 2 tie him down & peel his face back & make
              deb watch." Ex. 24.
          • 	 "I will skin your mom n front ofu will eat that bitch 2." Ex. 35.
          • 	 "lam going 2 kill your dad & mom your lkife's gone." Ex. 37.
          • 	 "Im leaviing please stop your husnand bout 2 wreck evey thibg."
              Ex. 38.
          • 	 "Going 2 'murk u for hurting me u brUoght.this" Ex. 44.
          • 	 "I love u butt will kill 2 get 2 u literally." Ex. 50. 

             "Guaranteed =)" Ex. 53. 


(Spelling and grammar errors in originaL) Ahmin Smith used the word "murk" three

times in his messages. According to the Urban Dictionary, "murk" means "to physically

beat someone so severely, they end up dying from their injuries. To beat the living shit

outta [sic] someone. To seriously whoop somebodys [sic] ass." Finesse, Murk, URBAN

DICTIONARY (May 6, 2004), http://www.urbandictionary.comldefine.php?term=murk.

      Crystal Miller-Smith, being disturbed by the messages, called Ahmin Smith to

discern his mental state. During the call, he yelled and threatened to beat her. Although

                                               3

No. 31390-5-III
State v. Smith


Miller-Smith testified that she recognized his voice, Smith contends he did not speak to

her.

       After the phone call, Crystal Miller-Smith showed the text messages to her father,

Mark Miller. The messages shocked her father and caused him to fear for his safety.

Crystal Miller-Smith also showed the messages to her mother, Deborah McDonald, and

stepmother, Deb Miller. Both mothers were shocked, scared, and upset by the threats

because they believed "it was very possible" Ahmin Smith could carry out the threats.

RP at 363. Out of fear for his family's safety, Mark Miller turned on the exterior lights to

his home and set out game cameras. Game cameras are remote cameras activated by heat

sensing motion detectors. Crystal Miller-Smith called law enforcement. Okanogan

County Sheriff Deputy Kevin Newport met Miller-Smith at her father's residence in

Pateros, where he viewed some ofthe text messages from Ahmin Smith. Deputy

Newport asked Miller-Smith to forward any additional messages she received. Miller-

Smith sent Newport a total of 92 messages.

       Deputy Kevin Newport decided to arrest Ahmin Smith for felony harassment.

Deputy Newport drove to the Coulee Dam police station to retrieve an officer to assist

him. When the officers arrived at Smith's home around 1:30 a.m., they parked a few

houses down and walked to Smith's home. As they approached, Deputy Newport

observed Smith outside the home, texting on a phone. Newport quietly walked up the

driveway, when Smith stood. Newport yelled that he needed to speak to Smith. Smith

                                             4

No. 31390-5-111
State v. Smith


turned and quickly moved toward the home's front door. Newport told him he was under

arrest for felony harassment. Smith said, "I don't want to talk to you," went inside his

residence, and closed the door. RP at 253. Deputy Newport opened the door, grabbed

Smith's wrist, pulled him outside, and handcuffed him. Newport again advised Smith he

was under arrest for felony harassment and uttered the Miranda warnings.

      Shortly after arresting Ahmin Smith, Deputy Kevin Newport notified Crystal

Miller-Smith ofthe arrest. Miller-Smith received no further text messages after Newport

arrested Smith.

      Deputy Kevin Newport placed Ahmin Smith in the former's patrol car. After

having been read his rights, Smith yelled at Deputy Newport, claimed Newport violated

his rights, stated he did not wish to speak with Newport, and directed Newport to take

him to jail. Deputy Newport never asked Smith any questions. During the journey,

Smith complained about Newport's driving, told Newport he slipped his handcuffs,

threatened to assault Newport if he were outside the car, and repeatedly spoke of suing

Newport and the Okanogan Sheriff's Department for false arrest.

                                      PROCEDURE

      On August 16,2012, the State of Washington charged Ahmin Smith with three

counts of harassment with threats to kill, with domestic violence enhancements, in

violation ofRCW 9A.46.020. The State alleged that Smith knowingly threatened to kill

Mark Miller, Deborah McDonald, and Crystal Miller-Smith, that each victim was a

                                             5

No. 31390-5-111
State v. Smith


family member, and that each victim was reasonably fearful because ofthe threat. On

January 3,2013, the State amended its information to add another count of harassment

with threats to kill, domestic violence, for his threats to Debra Miller. During the course

ofthe prosecution, Ahmin Smith repeatedly and vociferously accused law enforcement,

the prosecutor, the judge, and his attorneys with misconduct.

          Ahmin Smith, on his own, brought motions to suppress evidence, to dismiss the

charges, to remove his counsel, for full discovery, for the trial court to take notice of

ineffective counsel, for a list of all equipment an Okanogan County sheriff deputy must

carry, to compel transcription of hearings, and to direct the court to follow the

constitution. The trial court denied the motions.

          Ahmin Smith repeatedly reserved his right to a suppression hearing. Ahmin

Smith's first defense counsel, Emma Paulsen, declined to seek a suppression hearing

because, regardless ofthe means by which the sheriff deputies apprehended Smith, the

deputies gathered no evidence as a result of the arrest. On October 24,2012, the trial

court removed Emma Paulsen as Smith's counsel, at Smith's request when

communications between the two deteriorated.

          Ahmin Smith's second defense attorney, Michael Lynch, also concluded Smith

lacked grounds for a suppression hearing. Lynch declared a hearing was unnecessary

because Smith did not answer any questions from law enforcement officers. Lynch

stated:

                                              6

No. 31390-5-111
State v. Smith


               MR. LYNCH: Your Honor, there were statements that were made to
       the effect of, "I'm going to sue the police." There were statements made
       attributed to Mr. Smith at the time of his detention saying that he closed the
       door, meaning the door to the police vehicle, he wanted his attorney.
       There's an allegation that on the trip over from Coulee Dam to-­
       Okanogan, that Mr. Smith advised-"he had been able to slip his hands out
       of his handcuffs and was making comments that if I stopped the car to
       check he would assault me."
               These are not statements attributed to Mr. Smith that were in
       response to any questions. And I don't know if they would be germane,
       relevant, to the trial or not. But-a 3.5 hearing requires the court to analyze
       whether the defendant was in custody, and if he was in custody was he
       advised of his rights. The police report indicates that he was advised of his
       rights upon his arrest. The statements are attributed to him on the trip over.
              And finally the court has to determine if the statements attributed to
       the defendant were made in response to police questioning. My review of
       the discovery material indicates that there are no 3.5 issues under that
       analysis.

RP at 66-67.

       On January 2,2013, the day before trial, Ahmin Smith presented the court with a

letter he asserted came from the Washington State Bar Association (WSBA). Smith

asserted the letter vindicated his belief that police officers recorded their encounter with

him and engaged in misconduct. Throughout the proceedings, Smith frequently insisted

that law enforcement recorded his encounter and that the State hid the recordings from

him. Contrary to Smith's belief, the letter came from Emma Paulsen, the counsel he

dismissed. In the letter, counsel responds to the grievance Smith filed against her with

the WSBA, a copy of which the WSBA sent Smith. Upon learning the true nature of the

letter the court engaged in a colloquy with Smith:



                                              7

No. 31390-5-III
State v. Smith


               COURT: I am on the verge of considering sending Mr. Smith to
      Eastern State Hospital for a competency evaluation.
               DEFENDANT: For wanting-for wanting my rights?
               THE COURT: No.
               DEFENDANT: My constitutional rights?
               THE COURT: I am concerned that you have an inability to hear and
      understand and perceive the nature ofthese proceedings,­
               DEFENDANT: (Inaudible)­
               THE COURT: -and that you fully appreciate what's going on.
               DEFENDANT: Oh, I do appreciate-.
               THE COURT: All you do is-
               DEFENDANT: (Inaudible).
               THE COURT: All you do is interrupt, you do not listen. And I'm
      unclear, unsure, I'm concerned about whether or not you have the ability to
      listen and comprehend. Because your practice, Mr. Smith, is simply to
      interrupt, continually, and not to accept or listen to anything that the court
      is trying to tell you.
               This is not-and I repeat-this is not indication from the
      Washington State Bar Association about evidence existing or not existing.
      It just isn't. Period.
               DEFENDANT: Well, how (inaudible) read it? 

               THE COURT: You're right; I haven't read it, because­ 

               DEFENDANT: (Inaudible)­
               THE COURT: -it's not correspondence from them. 

               DEFENDANT: (Inaudible) this is talking about my case. 

               THE COURT: Once again you're expressing indication that you 

      don't understand, you're not willing to comprehend.
               DEFENDANT: (Inaudible) understand. I understand (inaudible)
      this evidence existed I've been asking for for the past (inaudible)­
               THE COURT: Does the state have any position? I mean, the court
      has authority to consider a 10.77 motion on its own.
               MR. BOZARTH: Your Honor, I am not in a position to evaluate
      whether he's competent or just obstinate, to tell you the truth. I'll leave it
      to the court to-to make that decision. Or Mr. Lynch-
               THE COURT: Okay. 

               MR. BOZARTH: He's probably in a better position than I am. 

               THE COURT: All right. 

               Well, the other way to approach it, I suppose, is simply to-Mr. 

      Smith's made his record about this evidence. I know ofnothing to indicate

                                            8

No. 31390-5-III
State v. Smith


       that in fact it does exist. Mr. Lynch, I guess I'll leave it to you to deal with
       during trial.
               MR. LYNCH: I understand, your Honor. And I should tell the court
       that- If it's a question of Mr. Smith's being unable to understand where he
       is, what the nature of the proceedings are,-there's a very low threshold
       that Eastern State applies towards issues of competency. Mr. Smith hasn't
       demonstrated any lack of ability regarding appreciate of where he is and
       what's going on. He has strong opinions about things, perhaps to the
       detriment of his ability to understand another's point of view. But I'm not
       certain that that rises to the level of incompetence. I wouldn't object if the
       state-ifthe court brought it on its own motion, but-I don't feel
       compelled at this point to make such a motion.

RP at 137-40.

       Shortly thereafter, on January 2, the trial court renewed its concern:

                 THE COURT: Okay.
               I'm going to renew my concern about Mr. Smith's inability to
       comprehend, or inability and unwillingness to accept what's going on. And
       between now and tomorrow morning I'm going to take under advisement
       my own-my own concern. And counsel, you should be fully prepared;
       this case may not go to trial tomorrow. And if it doesn't it will be because
       Mr. Smith's on his way to Eastern.
              I'm just not going to continue this. This is-We're not making any
       progress. We're not accomplishing anything. We're talking about things
       which we shouldn't even be talking about. Or that we've already talked
       about multiple times. And the reason that it's being discussed again is
       because of, once again, either an unwillingness or an inability to
       comprehend and understand what's going on.
              At a readiness calendar there are basically two questions: Is the state
       ready, is the defense ready. Yes, or no, and that's it. We've spent a half
       hour talking about things which we should ordinarily have talked about
       tomorrow, and we've accomplished nothing.
               So, I'm leaving the case set for trial.

RP at 145.



                                              9

No. 31390-5-III
State v. Smith


      Despite defense counsels' conclusion that no hearing was needed, the trial court

held a erR 3.5 confession hearing the first day of the trial. Deputy Kevin Newport

testified during the hearing. The trial court found that the statements made by Ahmin

Smith to Sheriff Deputy Newport were spontaneous, unsolicited, and voluntary.

Accordingly, the trial court ruled that any statements made by Smith would be

admissible.

      On the first day of trial, the trial court also considered a motion by Ahmin Smith

to serve as co-counsel. In denying the motion, the court said:

              You are competent to stand trial. Y ou-. I'm convinced that you
      understand what's going on, but, frankly, I think that-whether or not
      you're just trying to make this more difficult, or if you're not wanting to
      listen, I don't know what your intentions are. But it simply flat not
      appropriate to allow you to act as counsel because I fear that you would be
      inviting either a mistrial or, worst case scenario, a conviction that is not
      based on the evidence but rather your misconduct.

RP at 209.

      At trial, Deputy Kevin Newport testified that, after Ahmin Smith's arrest, he

explained to Smith that the arrest was for felony harassment. Newport told the jury of

Smith's decision not to talk to police. Deputy Newport, in the presence ofthe jury, also

opened a brown bag that contained Smith's cell phone. The exterior of the bag was

labelled, "Felony Harassment ... suspect* Smith, Ahmin." Ex. 105.

      On January 4,2013, a jury found Ahmin Smith guilty of four counts of felony

harassment with special enhancements for threatening family members. At sentencing,

                                            10 

No. 3 I 390-5-II1
State v. Smith


the trial court mentioned that one juror, after the verdict, commented that "this was not a

slam-dunk; this wasn't an easy decision." RP at 515.

       The trial court sentenced Smith to the top ofthe standard range 42 months'

confmement for each count, to be served concurrently. The court commented:

                The truth is, one ofthese texts to these four individuals would have
       been enough upon which to convict you. But the evidence is that you sent
       dozens oftext messages to these four people which were threatening in
       nature and contained threats in so many words and so many different ways
       to kill those four individuals.
                To me, the sheer number, the sheer volume of the text messages is
       particularly disturbing. And I think because ofthat the evidence is
       overwhelming that a reasonable person could conclude that you intended to
       carry out the threats.
                This is a case of domestic violence. There's no question in my mind
       but that you were trying to use these threats and intimidating these people,
       trying to get your wife to do something, and that's classic domestic
       violence.

               With a standard range of 33 to 43 months, we know the presumptive
       range, the presumptive midpoint sentence of38 months is where the court
       is to start in its assessment in terms of a sentence ....
               I'm satisfied that the sheer volume here of email, the threats, the
       nature ofthe threats, and-Mr. Smith's unwillingness to accept any sort of
       a responsibility for his actions, whether they're criminal or not, to me
       warrants a sentence at the higher end ofthe standard range.
               As it turns out the court's sentence this-this afternoon is three and a
       half years, which, if you do the math, is 41 months-42 months; correction
       -and so it is virtually the high end ofthe standard range.

RP at 516-18.




                                             11 

No. 31390-5-II1
State v. Smith


                                  LAW AND ANALYSIS

       Ahmin Smith asks this court to reverse his convictions and remand his case for a

new trial because inadmissible opinion testimony and unacceptable evidence improperly

swayed the jury. He contends these errors alone or cumulatively are sufficient to

overturn his convictions. But even considering that evidence, Smith contends the

evidence supporting his convictions is insufficient. Alternatively, Smith argues the trial

court erred when it expressed concern for his competency, but did not hold a competency

hearing.

                                 Admissibility ofEvidence

       Ahmin Smith contends much ofDeputy Kevin Newport's testimony was

inadmissible. At trial, his counsel failed to object to most ofthis testimony. Under RAP

2.5, Smith is procedurally barred from raising the contentions for the first time on appeal.

But RAP 2.5 provides an exception for errors of constitutional magnitude. To benefit

from this exception, Smith must show the errors are ''truly ofconstitutional dimension"

and that the errors are manifest. State v. O'Hara, 167 Wn.2d 91,98,217 P.3d 756

(2009); State v. Grimes, 165 Wn. App. 172, 185-86,267 P.3d 454 (2011). To determine

whether an error is truly of constitutional dimension, appellate courts first look to the

asserted claim and assess whether, if the claim is correct, it implicates a constitutional

interest as compared to another form oftrial error. O'Hara, 167 Wn.2d at 98. There

must be a plausible showing that the asserted error had practical and identifiable

                                             12 

No. 31390-5-III
State v. Smith


consequences in the trial ofthe case. State v. Gordon, 172 Wn.2d 671,676,260 P.3d 884

(2011); Grimes, 165 Wn. App. at 180. If Smith shows manifest constitutional error, the

burden shifts to the State to prove the errors harmless beyond a reasonable doubt.

Grimes, 165 Wn. App. at 186. To hurdle these procedural bars, Smith alleges three errors

ofconstitutional magnitude affected the outcome of his trial.

       Improper Opinion Testimony

       Ahmin Smith frrst contends the court violated his right to a jury trial and his

counsel provided ineffective assistance in violation ofthe Sixth Amendment to the

United States Constitution when the jury heard Deputy Kevin Newport testifY that he

arrested Smith for felony harassment and saw a brown bag containing Smith's cell phone

labelled "Felony harassment ... suspect Smith, Ahmin." Ex. 105. He argues this

evidence improperly invades the fact-finding province of the jury. Both a defendant's

right to a jury trial and to effective assistance of counsel are issues of constitutional

magnitude. State v. Greiff, 141 Wn.2d 910, 924, 10 P.3d 390 (2000); State v. We, 138

Wn. App. 716, 730, 158 P.3d 1238 (2007). Having shown the errors are of constitutional

magnitude, he must show the errors are manifest.

       In the context of ineffective assistance, Ahmin Smith must show his counsel

performed deficiently and, as a result, suffered actual prejudice. Strickland v.

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient

performance based on the failure to object to the admission of testimony, Smith must

                                              13 

No. 31390·5-III
State v. Smith


show that the trial court would likely have sustained the objection. In re Det. ofStout,

159 Wn.2d 357, 377, 150 P.3d 86 (2007); In re Det. ofStrand, 139 Wn. App. 904, 912,

162 P.3d 1195 (2007), affd, 167 Wn.2d 180,217 P.3d 1159 (2009). Thus, he must show

Deputy Newport's testimony and exhibit 105 were likely inadmissible and as a result of

admitting the evidence he suffered prejudice. As Smith admits, the test is the same for

establishing practical and identifiable consequences from invading the fact-fmding

province of the jury. Br. of Appellant at 12-13; We, 138 Wn. App. at 722-23.

       The burden is on Ahmin Smith to show his counsel performed deficiently. State v.

Grier, 171 Wn.2d 17,33,246 P.3d 1260 (2011). This court starts with the strong

presumption that counsel's representation was effective. State v. Studd, 137 Wn.2d 533,

551,973 P.2d 1049 (1999). To rebut this presumption, a defendant must demonstrate

trial counsel's conduct could not be characterized as a legitimate trial strategy or tactic.

Grier, 171 Wn.2d at 17; State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563

(1996). "The relevant question is not whether counsel's choices were strategic, but

whether they were reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct.

1029, 145 L. Ed. 2d 985 (2000).

       Ahmin Smith argues the court would have sustained the objection because Deputy

Kevin Newport's testimony and the exhibit invaded the province of the jury by opining

on a question of ultimate fact-the guilt of Smith. Smith is correct that no witness may




                                              14 

No. 31390-5-III
State v. Smith


opine on the guilt ofthe accused. State v. Garrison, 71 Wn.2d 312, 315, 427 P.2d 1012

(1967). But neither Newport nor the exhibit opined on his guilt.

       To detennine whether a witness's testimony constitutes improper opinion

testimony, courts consider the type of witness, the specific nature ofthe testimony, the

nature of the charges, the type of defense, and other evidence before the trier of fact.

State v. Montgomery, 163 Wn.2d 577, 591, 183 P.3d 267 (2008). When a police officer

opines impennissibly, it raises additional concerns because an officer's testimony often

carries a special aura of reliability. State v. Kirkman, 159 Wn.2d 918,928, 155 P.3d 125

(2007); State v. Rafay, 168 Wn. App. 734, 806,285 P.3d 83 (2012).

       Ahmin Smith focuses on Deputy Kevin Newport's profession and ignores the

other factors. Deputy Newport repeatedly testified that he "arrest[ed]" Smith for "felony

harassment." RP at 248, 252,254. Written on exhibit 105, a brown bag containing

Ahmin Smith's cell phone, is "Felony harassment ... suspect Smith, Ahmin." Neither is

a comment on Smith's guilt. Newport testified as to why he arrested Smith. He did not

declare him guilty. Smith might as well have objected to the use ofjury instructions,

since the instructions also stated the State charged him with felony harassment.

       Smith's defense was that someone else sent the text messages. He did not contend

the messages were never sent. Balancing these factors in light ofthe other evidence, the

trial court would unlikely have sustained an objection.




                                             15 

No. 3 1390-5-III
State v. Smith


       Ahmin Smith fails to show counsel performed deficiently or that he was denied his

right to a jury trial. Therefore, this court need not address the remaining ineffective

assistance prong. State v. Hendrickson, 129 Wn.2d at 78.

       Improper Comment on Ahmin Smith's Right to Remain Silent

       Ahmin Smith next argues that Deputy Kevin Newport violated his Fifth

Amendment right to remain silent when he testified that Smith did not want to talk to

him. "No person shall be ... compelled in any criminal case to be a witness against

himself." U.S. CONST. amend. V; see also CONST. art. I, § 9. The right against self-

incrimination is liberally construed. State v. Holmes, 122 Wn. App. 438, 443, 93 P.3d

212 (2004). The right seeks to prohibit the inquisitorial method of investigation in which

the accused is forced to disclose the contents of his mind, or speak his guilt. State v.

Easter, 130 Wn.2d 228,236,922 P.2d 1285 (1996).

       Whether a comment on a defendant's silence is of constitutional proportions

depends on whether the comment was direct or indirect. Holmes, 122 Wn. App. at 445.

If direct, the defendant need not prove the error was manifest. State v. Romero, 113 Wn.

App. 779, 790-91, 54 P.3d 1255 (2002); RAP 2.5(a)(3). Instead, the State must prove the

alleged error harmless beyond a reasonable doubt. Romero, 113 Wn. App. at 794.

       A law enforcement officer makes a direct comment when he or she explicitly

references that a defendant invoked his or her right to remain silent. State v. Pottorff, 138

Wn. App. 343, 346, 156 P.3d 955 (2007); Romero, 113 Wn. App. at 793. For example,

                                             16 

No. 31390-5-III
State v. Smith


in Romero, this court found a police officer made a direct comment about the defendant's

right to remain silent when the officer testified, "I read him his Miranda warnings, which

he chose not to waive, would not talk to me." 113 Wn. App. at 793. Similarly, a court

found an officer made a direct comment When the officer testified he read the defendant

his Miranda rights and the defendant refused to talk. State v. Curtis, 110 Wn. App. 6, 9,

37 P.3d 1274 (2002).

       On the other hand, a law enforcement officer makes an indirect comment on the

right to remain silent when a jury could infer from the comment the defendant attempted

to exercise his right to remain silent. Pottorff, 138 Wn. App. at 347. For example, a

court found a police officer made an indirect comment when the officer testified the

defendant claimed he was innocent and agreed to take a polygraph, but only after

discussing the matter with his attorney. State v. Sweet, 138 Wn.2d 466,480,980 P.2d

1223 (1999). Courts deem an indirect comment on silence as not reversible error absent a

showing of prejudice. State v. Lewis, 130 Wn.2d 700, 706-07, 927 P.2d 235 (1996);

Sweet, 138 Wn.2d at 481. Critical to this detennination of prejudice is whether there is a

legitimate purpose behind the witness's comment other than to infonn the jury that the

defendant refused to talk to police. Romero, 113 Wn. App. at 789; Curtis, 110 Wn. App.

at 13-14.

       Deputy Kevin Newport testified that, as he walked up the driveway to Ahmin

Smith's home, he told Smith he needed to talk to him. Newport explained that he sought

                                            17 

No. 31390-5-1II
State v. Smith


to "get a reaction, see how he was going to react one way or the other, at that point." RP

at 252. Smith started to stand and appeared as ifhe was going to go inside his home. "At

that point the 'I want to talk to you' wasn't going to work so [Newport] told him

basically that he was under arrest for harassment, felony harassment." RP at 252.

Newport testified that Smith "got up, was on the porch at that point saying 'I don't want

to talk to you,' went inside the residence and closed the door." RP at 253.

       Ahmin Smith maintains that Deputy Newport's testimony served no purpose other

than to inform the jury the former exercised his constitutional right to remain silent. The

State argues that Newport sought to explain to the jury how he conducted his

investigation. But the manner of the investigation was not relevant to the issue at hand,

the guilt or innocence of Ahmin Smith. Assuming the investigation was relevant, Deputy

Newport could have explained how he conducted his investigation without referencing

Smith's choice not to speak to police. Where, as here, there is no relevant purpose for

referencing Smith's refusal to talk to police, courts find the witness directly commented

on a defendant's right to remain silent. Romero, 113 Wn. App. at 789; Curtis, 110 Wn.

App. at 13-14.

       The State also argues Deputy Kevin Newport's comments are mere references to

Ahmin Smith's silence, which were not intended to be used as substantive evidence of his

guilt. "[1]t is constitutional error for a police witness to testifY that a defendant refused to

speak with him or her." Romero, 113 Wn. App. at 790 (citing Easter, 130 Wn.2d at 241).

                                               18 

No. 31390-5-III
State v. Smith


Newport testified that Smith told him, "I don't want to talk to you." RP at 253. Deputy

Newport directly commented on Smith's right to remain silent. A direct comment is an

error of constitutional magnitude. Romero, 113 Wn. App. at 790-91.

       Since Ahmin Smith shows a constitutional error, this court reviews the comment

on Smith's silence under the constitutional harmless error analysis. Romero, 113 Wn.

App. at 790-91. Unlike the other errors Smith alleged for the first time on appeal, Smith

need not show the error is manifest. Instead, this court must decide if the error was

harmless error beyond a reasonable doubt. Easter, 130 Wn.2d at 242. We conclude any

error is harmless because the State never again brought up his silence and because ofthe

overwhelming evidence against Smith.

      Ahmin Smith contends Deputy Kevin Newport's comments prejudiced him

because the other evidence against him was weak. To substantiate his claim, Smith

emphasizes that one juror reportedly said the case was not a slam dunk. But in

determining whether an error was harmless beyond a reasonable doubt, a reviewing court

does not consider a comment by one juror.

       The State never attempted to exploit the fact that Ahmin Smith refused to speak to

police. Courts generally refuse to reverse a conviction when the comment on the

defendant's silence is brief, the testimony does not imply guilt from the refusal, and the

prosecutor did not refer to the statement in argument. Lewis, 130 Wn.2d at 706-07.




                                             19 

No. 3 I 390-5-III
State v. Smith


Deputy Kevin Newport's comment on Smith's refusal was brief, he did not imply guilt

from the comment, and the State never referred to Smith's refusal in argument.

       Overwhelming evidence supports Ahmin Smith's conviction. The jury saw 92

messages sent from Ahmin Smith's phone. Crystal Miller-Smith and her family testified

that those gruesome threats made them fearful that he would carry them out. While

Smith contends someone else sent the messages, Miller-Smith testified that she spoke

with Smith over the phone between messages. On that call, she recognized his voice and

he continued to threaten her. When Deputy Newport arrived at Smith's home to arrest

him, Newport observed Smith on his phone, apparently texting. The texts ended with

Smith's arrest. In light ofthis evidence, Deputy Newport's testimony that Smith refused

to speak with him was harmless beyond a reasonable doubt.

       Unreasonable Seizure

       The third and last error Ahmin Smith argues is of constitutional dimension is

Deputy Kevin Newport's decision to open Smith's door and arrest him without a warrant.

Smith argues he preserved this issue. If this court disagrees, he argues Deputy Newport's

conduct is of constitutional dimension, for two reasons, such that an objection was

unnecessary. First, he argues his counsel provided ineffective assistance for refusing to

raise this issue. Second, he argues Deputy Newport's seizure violated his rights under the

Fourth Amendment to the United States Constitution and article I, section 22 of

Washington's Constitution. Both ineffective assistance and an unreasonable seizure can

                                            20 

No. 31390-5-1I1
State v. Smith


be of constitutional dimensions. State v. Jones, 163 Wn. App. 354, 359-60,266 P.3d 886

(2011); We, 138 Wn. App. at 730.

      The State contends Ahmin Smith did not preserve this issue. While Smith

requested a suppression hearing, his counsel did not. When a defendant is represented by

competent counsel, the attorney has the ultimate authority in deciding which legal

arguments to advance. State v. Bergstrom, 162 Wn.2d 87, 95, 169 P.3d 816 (2007); State

v. Cross, 156 Wn.2d 580, 606, 132 P.3d 80 (2006). That authority expressly extends to

decisions about whether to seek suppression of unconstitutionally obtained evidence.

Henry v. Mississippi, 379 U.S. 443, 451-52,85 S. Ct. 564, 13 L. Ed. 2d 408 (1965); see

also 3 WAYNE R. LAFAVB, CRIMINAL PROCEDURE § 11.6, Counsel's Control Over

Defense Strategy (2d ed. 2004). Both of Smith's defense counsel declined to seek a

CrR 3.6 hearing. Emma Paulsen, the counsel he dismissed, explained that "regardless of

what the officers did in apprehending him, no evidence or information ... was gathered

as a result of that arrest." RP at 18. His second counsel, Michael Lynch, concurred. The

State is entitled to rely on these representations advanced by defense counsel. Bergstrom,

162 Wn.2d at 96. Therefore, Smith's objections did not preserve the alleged error for

appeal.

      Even if this court considered Ahmin Smith's objection, his failure to specifically

object barred him from claiming error. State v. Embry, 171 Wn. App. 714, 741, 287 P.3d

648 (2012). Smith repeatedly moved for a CrR 3.6 hearing, arguing Deputy Kevin

                                           21 

No. 31390-5-II1
State v. Smith


Newport illegally arrested him. But Smith never identified the testimony he wished the

court to suppress.

       Ahmin Smith's counsel's representations also bar him from raising the issue as a

manifest constitutional deprivation of his right to be free from unreasonable seizures.

Appellate courts do not review even manifest constitutional issues, if expressly

recognized at trial and deliberately not litigated. Johnson v. United States, 318 U.S. 189,

199-200,63 S. Ct. 549, 87 L. Ed. 704 (1943); State v. Valladares, 99 Wn.2d 663,671-72,

664 P.2d 508 (1983); State v. Hayes, 165 Wn. App. 507, 515, 265 P.3d 982 (2011); State

v. Walton, 76 Wn. App. 364,370,884 P.2d 1348 (1994). Both defense counsel

articulated deliberate reasons for not requesting a CrR 3.6 hearing. They had the express

authority to decide whether to seek suppression of purported unconstitutionally obtained

evidence. Henry, 379 U.S. at 451-52. Their decisions waived Smith's ability to raise the

issue on appeal. Hayes, 165 Wn. App. at 515-17.

       To avoid the waiver, Ahmin Smith argues counsel provided ineffective assistance

when they refused to request a CrR 3.6 hearing. A criminal defendant is entitled to a

reasonably competent counsel to help assure the fairness of our adversary process.

Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). This

right stems from the coextensive protections enumerated in both the federal and

Washington Constitutions. U.S CONST. amend. VI; CONST. art. I, § 22. To meaningfully

protect an accused's enumerated right to counsel, the United States Supreme Court held

                                            22 

No. 31390-5-III
State v. Smith


an accused is entitled to "effective assistance of counsel." Strickland v. Washington, 466

U.S. at 686. Under Strickland, courts apply a two-prong test: whether (1) counsel's

perfonnance failed to meet a standard of reasonableness and (2) actual prejudice resulted

from counsel's failures. Strickland, 466 U.S. at 690-92. To prevail on his or her claim, a

defendant must satisfy both prongs. Hendrickson, 129 Wn.2d at 78. If a defendant fails

to establish one prong ofthe test, this court need not address the remaining prong.

Hendrickson, 129 Wn.2d at 78.

       To satisfy the fIrst prong, the defendant must show that, after considering all the

circumstances, counsel's perfonnance fell below an objective standard of reasonableness.

State v. McFarland, 127 Wn.2d 322, 334-35,899 P.2d 1251 (1995). The burden is on the

defendant to show defIcient performance. Grier, 171 Wn.2d at 17. This court starts with

the strong presumption that counsel's representation was effective. Studd, 137 Wn.2d at

551. To rebut this presumption, a defendant must demonstrate trial counsel's conduct

could not be characterized as a legitimate trial strategy or tactic. Grier, 171 Wn.2d at 17;

Hendrickson, 129 Wn.2d at 77-78. "The relevant question is not whether counsel's

choices were strategic, but whether they were reasonable." Roe, 528 U.S. at 481. To

show defIcient perfonnance based on the failure to object to the admission oftestimony,

Smith must show that the trial court would likely have sustained the objection. Stout, 159

Wn.2d at 377; Strand, 139 Wn. App. at 912.




                                             23 

No. 31390-5-II1
State v. Smith


       Ahmin Smith does not contest that Deputy Kevin Newport possessed probable

cause or could make a warrantless arrest. Smith contends the trial court would have

suppressed testimony regarding his post-arrest statements and actions because Deputy

Kevin Newport arrested him inside his home without exigent circumstances.

       The Washington Constitution and the Fourth Amendment prohibit police from

making a warrantless entry into a suspect's residence to effectuate an arrest without

exigent circumstances. CONST. art. I § 7; Payton v. New York, 445 U.S. 573, 576, 100 S.

Ct. 1371,63 L. Ed. 2d 639 (1980); State v. Holeman, 103 Wn.2d 426,428-29,693 P.2d

89 (1985). Since Deputy Kevin Newport lacked a warrant, the State must show exigent

circumstances merited Newport opening Smith's door to arrest him.

       The State bears the burden of proving that the exigent circumstances exception

applies. State v. Smith, 165 Wn.2d 511, 517, 199 P.3d 386 (2009). Appellate courts look

at the totality of the circumstances to determine whether the evidence supports a finding

of exigency. Smith, 165 Wn.2d at 518. This court considers six factors in analyzing the

situation:

              (1) the gravity or violent nature ofthe offense with which the
       suspect is to be charged; (2) whether the suspect is reasonably believed to
       be armed; (3) whether there is reasonably trustworthy information that the
       suspect is guilty; (4) there is strong reason to believe that the suspect is on
       the premises; (5) a likelihood that the suspect will escape ifnot swiftly
       apprehended; and (6) the entry is made peaceably.

State v. Cardenas, 146 Wn.2d 400,406,47 P.3d 127 (2002).


                                              24 

No. 31390-5-III
State v. Smith


       The evidence supports the finding that the exigent circumstances permitted

warrantless entry and Smith's arrest. The gruesome threats to murder four people were

extremely grave. Crystal Miller-Smith did not know whether Ahmin Smith possessed

any weapons, but the number and nature ofthe threats supported a belief that Smith could

be armed. The information was trustworthy. Deputy Kevin Newport observed the text

messages sent to Miller-Smith, Miller-Smith verbally confirmed the messages were sent

from her husband, and when Newport arrived at Smith's home, he appeared to be texting.

Deputy Newport knew Smith was on the premises because he saw Smith deliberately

walk into his home after Newport announced that he was under arrest. Although the

record does not indicate if Smith would escape if not swiftly apprehended, the darkness

lent conditions for escape. Smith was not peaceably detained. Newport and two officers

dragged Smith from his home and onto the ground before handcuffing him.

       The State need not prove all six factors to show exigent circumstances. State v.

Allen, 178 Wn. App. 893, 911, 317 P.3d 494, review granted, 180 Wn.2d 1008,325 P.3d

913 (2014). The balance of factors establishes exigent circumstances leading to Ahmin

Smith's arrest. Therefore, counsel was unlikely to succeed in suppressing any statements

made after the allegedly illegal arrest.

       Trial counsel's reasons behind their respective decisions not to seek a CrR 3.6

hearing are reflected in the record. They articulated that "regardless of what officers did

in apprehending him, no evidence or information ... was gathered as a result ofthat

                                            25 

No. 31390-5-III
State v. Smith


arrest." RP at 18. "So whether or not the arrest process was lawful, it d[id] not impact

the evidence which the State ... present[ed] at trial." RP at 118. Defense counsel's

decisions may not have been strategic, but they were reasonable. Roe, 528 U.S. at 481.

       Even assuming the arrest was illegal and the trial court would have suppressed the

statements Deputy Newport attributed to Smith, Smith establishes no prejudice from the

evidence. Smith contends he was prejudiced because the evidence against him was weak.

Smith argues little evidence connects him to the text messages and the victims testified

that he could carry out the threats, not that he would. We already addressed these

arguments in another context and will address them again below. In short, Smith fails to

show the result would have been different had the court excluded the evidence of Smith's

conduct with officers.

      Bad Act Evidence

       Ahmin Smith argues the court erred by permitting Deputy Kevin Newport to

testify to Smith's bad behavior after the arrest. Smith contends allowing this evidence

was error since it was irrelevant to any ofthe charged elements and unduly prejudiced

him. Smith waived any objection to his post-arrest behavior as bad act evidence. State v.

Chase, 59 Wn. App. 501, 508, 799 P.2d 272 (1990). He may not raise the admission of

bad act evidence for the first time on appeal because it is not of constitutional magnitude.

State v. Jackson, 102 Wn.2d 689,695,689 P.2d 76 (1984); Chase, 59 Wn. App. at 508.




                                             26 

No. 31390-5-II1
State v. Smith


                                  Sufficiency ofthe Evidence

          Ahmin Smith contends insufficient evidence underlies his convictions for felony

harassment. He argues the victims, Crystal Miller-Smith, Mark Miller, Deb Miller, and

Deborah McDonald, did not believe he would carry out the threats and that the text

messages stated Deb Miller would live so she could watch him harm her husband, Mark

Miller.

          A defendant who argues insufficient evidence supports his conviction admits the

truth of the State's evidence and all reasonable inferences that a trier of fact can draw

from that evidence. State v. Salinas, 119 Wn.2d 192,201,829 P.2d 1068 (1992). When

reviewing a challenge to the sufficiency ofthe evidence, this court reviews the evidence

in the light most favorable to the State to determine whether "any rational trier of fact

could have found guilt beyond a reasonable doubt." Romero, 113 Wn. App. at 797

(citing Salinas, 119 Wn.2d at 201). This court does not review credibility determinations

made by the jury. Romero, 113 Wn. App. at 798.

          A person is guilty of felony harassment if the person knowingly threatens to kill

someone, immediately or in the future, and the person by words or conduct places the

person threatened in reasonable fear that the threat will be carried out. RCW 9A.46.020;

State v. e.G., 150 Wn.2d 604,609,80 P.3d 594 (2003). The person threatened need not

hear of the threat from the defendant so long as the threatened person learns ofthe threat

and, as a result, feared the threat would be carried out. State v. Kiehl, 128 Wn. App. 88,

                                               27 

No. 31390-5-III
State v. Smith


93, 113 P.3d 528 (2005). The statute requires the person threatened both subjectively

feel fear and that fear must be reasonable. RCW 9A.46.020(1)(b); State v. E.J.y', 113

Wn. App. 940, 953, 55 P.3d 673 (2002).

       Ahmin Smith argues the victims did not believe he would carry out the threats, but

only thought it possible he could carry out those threats. The State argues the victims'

belief that Ahmin Smith could carry out the threats is sufficient to uphold his conviction.

In E.J. y., the court found sufficient evidence where the victim testified that she was a

"little frightened." 113 Wn. App. at 953. The State argues the witnesses' testimony here

passes this low bar. But the E.J. Y. court made this statement'" [a]ssuming the evidence

establish[ ed] the victim's subjective fear. '" 113 Wn. App. at 953 (quoting State v.

Alvarez, 74 Wn. App. 250, 260-61,872 P.2d 1123 (1994), affd, 128 Wn.2d 1,904 P.2d

754 (1995)) (some alteration in original). In other words, the State asks this court to

conflate the subjective fear requirement with the requirement that the fear the victim felt

was reasonable.

       Next, the State equates the victims' beliefs that Smith could carry out the threats

with a "conditional threat." This court upheld a defendant's conviction, where the

defendant threatened to "kick [an officer's] ass, if [he] wasn't in handcuffs." State v.

Cross, 156 Wn. App. 568,580,234 P.3d 288 (2010), remanded, 166 Wn. App. 320

(2012). The court found a conditional threat falls under the defmition of a threat

established in RCW 9A.04.110. Cross, 156 Wn. App. at 582. But the officer still had to

                                             28 

No. 31390-5-111
State v. Smith


subjectively fear that Cross would have carried out the threat had he not been handcuffed.

See Cross, 156 Wn. App. at 583-84. Unlike the officer in Cross, Smith's victims did not

testifY they feared he would carry out the threats.

       Ahmin Smith's victims testified that they believed it very possible he could carry

out the threats. Thus, Ahmin Smith urges the court to reverse his conviction because the

victims did not use the magic word "would." But courts review both victims' words and

conduct when analyzing their fear. E.J.y', 113 Wn. App. at 953. Smith's threats caused

Crystal Miller-Smith enough fear that she approached her father, Mark Miller, to show

him the texts. She testified that she "had no idea what he was capable of at that point, he

was so angry and-threatening that [she] didn't--didn't feel like [she] could just wait to

see what he would do." RP at 374-75. Miller-Smith testified that she was very upset and

concerned for the safety ofherself and her family. She deemed Smith capable of carrying

out the threats and feared for her and her father's safety. The fear also led her to call

police and change the locks on her home.

       Mark Miller testified that the texts shocked him and caused him to fear for his

safety. Out of fear for his family's safety, Miller turned on the exterior lights to his home

and set out game cameras. Both Crystal Miller-Smith's mother, Deborah McDonald, and

stepmom, Deb Miller, were also shocked, scared, and upset by the threats because they

believed "if very possible" Ahmin Smith could carry out those threats since he knew

where they lived. Viewing the words and conduct ofthe victims in the light most

                                             29 

No. 31390-5-1I1
State v. Smith


favorable to the State, a reasonable jury could find they subjectively feared Smith would

carry out his threats, regardless of whether the victims used talismanic words.

          Ahmin Smith also contends insufficient evidence supports his conviction for

threatening to kill Deb Miller for another reason. He argues the text messages show Deb

would live so she could watch the harm done to her husband. But other text messages

indicated Smith would "murk [Crystal Miller-Smith's] whole family;" that he would

"murk hi[m] & wife," ostensibly Mark Miller and his wife Deb Miller; and that "bye 10

am [Miller-Smith's] whole family will b dead;" Smith "[g]uaranteed =)." Exs. 10, 19,

20, 53. Viewed in the light most favorable to the State, Smith threatened to kill Deb

Miller.

                                         Competency

          Ahmin Smith contends the court erred when it expressed concern for his

competency but did not hold a competency hearing.

          Criminal defendants who lack the capacity to understand the nature and object of

the proceedings against them, to consult with counsel, and to assist in preparing their

defense may not be subjected to trial. Drope v. Missouri, 420 U.S. 162, 171,95 S. Ct.

896,43 L. Ed 2d 102 (1975); In re Pers. Restraint ofBenn, 134 Wn.2d 868, 932, 952

P.2d 116 (1998). A competency hearing is required "[w]henever a defendant has pleaded

not guilty by reason of insanity, or there is reason to doubt his or her competency."

RCW 10.77.060(1). Thus, unless an insanity defense is raised, a hearing is required only

                                              30 

No. 31390-5-III
State v. Smith


ifthe court makes a threshold determination that there is reason to doubt the defendant's

competency. State v. Lord, 117 Wn.2d 829, 901,822 P.2d 177 (1991).

          The determination of whether a competency examination should be ordered rests

generally within the discretion ofthe trial court. State v. Heddrick, 166 Wn.2d 898, 903,

215 P.3d 201 (2009). This court reviews a trial court's exercise of discretion for abuse.

Lord, 117 Wn.2d at 901. A court abuses its discretion when it exercises it on untenable

grounds, for untenable reasons, or uses an incorrect legal standard. Heddrick, 166 Wn.2d

at 903.

          In determining whether to order a formal inquiry into the competence of an

accused, courts consider the defendant's appearance, demeanor, conduct, personal and

family history, past behavior, and medical and psychiatric reports. State v. Dodd, 70

Wn.2d 513,514,424 P.2d 302 (1967); In re Pers. Restraint o/Fleming, 142 Wn.2d 853,

863, 16 P.3d 610 (2001). Courts also give considerable weight to the attorney's opinion

regarding his client's competency and ability to assist the defense. Lord, 117 Wn.2d at

901.

          Ahmin Smith's personal and family history, past behavior, and medical and

psychiatric reports are absent from the record, as is any mention of his appearance or

demeanor. The conduct that piqued the trial court's concern and his counsel's opinion

about his client's competency are recited above. The court's concern stemmed from its

frustration with Smith's recalcitrance rather than his ability to aid in his own defense. No

                                              31 

No. 31390-5-III
State v. Smith


evidence was presented that Smith is delusional, only that he refused to understand the

law and maintained an obsession with a claim he was recorded.

      The trial court reflected for a day whether to order a competency review. The next

day, the court considered a motion by Ahmin Smith to serve as co-counsel. When

denying the motion, the court observed that Smith was competent to stand trial.

      On appeal, Ahmin Smith contends his statements reflected possible psychosis,

obsession, delusional thinking, paranoia, or other potential mental defects. But Smith

presents no evidentiary support for his possible diagnoses. Smith could not accept the

lack of recordings, but many people are obstinate in their beliefs without any psychosis.

As his trial counsel acknowledged, "Mr. Smith hasn't demonstrated any lack of ability

regarding appreciate [sic] ofwhere he is and what's going on." RP at 139. Weighing

Smith's conduct in light of his counsel's representation, the court correctly concluded

Smith was competent. The record confrrms the court's decision not to hold a competency

hearing.

                                    Cumulative Error

      Ahmin Smith contends cumulative errors warrant reversing his convictions. The

cumulative error doctrine mandates reversal when the cumulative effect of nonreversible

errors materially affected the trial's outcome. State v. Russell, 125 Wn.2d 24,93-94,882

P.2d 747 (1994). The only trial error was allowing Deputy Kevin Newport to testify that

Smith refused to talk to him. That error is harmless beyond a reasonable doubt.

                                            32 

No. 31390-5-111
State v. Smith


Therefore, cumulative errors did not deny Ahmin Smith a fair trial.

                          Statement ofAdditional Grounds (SA G)

       Ahmin Smith contends the State improperly withheld exculpatory evidence and

repeats his appellate counsel's argument that Deputy Kevin Newport's arrest was illegal.

Neither argument has merit. We previously addressed the latter argument.

       Ahmin Smith argues the State withheld phone records for August 12-13,2012, and

evidence that text messages continued to be sent to Crystal Miller-Smith while he was in

custody. He also contends the phone records in the record on appeal are different from

the records admitted at triaL

       Ahmin Smith continued to send text messages until after 1 a.m. on August 13,

2012. The phone records admitted at trial only cover August 12. Smith presents no

evidence that the State withheld records for August 13. There is no evidence the State

possessed those records. Similarly, there is no evidence that Smith sent text messages

after Deputy Newport arrested Smith. Contrary to Smith's contention, the phone records

the superior court forwarded to this court are the originals, stamped as exhibit 55, and

dated January 3,2013, the day the trial court admitted the records .

                  . Motion to Terminate Services ofAppellate Counsel

       On April 9, 2014, Ahmin Smith moved this court to terminate the assistance of his

appellate counsel and appoint new counsel. Smith argues his appellate counsel provided

ineffective assistance when she refused his request to raise certain issues.

                                             33 

No. 31390-5-111
State v. Smith


       We deny Ahmin Smith's motion because RAP 10.10 affords him the opportunity

to present an SAG. This opportunity provides an effective remedy. The SAG permitted

him to raise any issues he believed appellate counsel did not adequately address. RAP

10.10. The court informed him ofthis right in a letter dated June 3, 2013, and he

exercised his right in an SAG and an amendment to the SAG, respectively filed on July

29 and August 22. In his SAG, he raised some of the issues he contends his trial counsel

refused to raise.

       Additionally, Ahmin Smith's appellate counsel's refusal to assert Smith's

additional arguments does not constitute ineffective assistance for the same reasons we

deny the issues raised in the SAG. Those issues lack merit. The remaining issues that he

raised with his lawyer but not in his SAG must wait. To substantiate these claims, Smith

requires additional evidence. The appropriate avenue for addressing these claims is a

personal restraint petition. State v. McFarland, 127 Wn.2d at 335.

                                    CONCLUSION

       We deny Ahmin Smith's motion for termination of the services of appellate

counsel and affirm Smith's convictions.




                                           34 

No. 31390-5-II1
State v. Smith


      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.




WE CONCUR: 





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