                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         January 9, 2018



     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                                No. 49592-9-II

                               Respondent,

        v.                                                    UNPUBLISHED OPINION

 TYLER MOREY WALLACE,

                               Appellant.


       MAXA, A.C.J. – Tyler Wallace appeals his conviction of second degree assault, based on

an incident in which he slapped KN (the mother of his child) and then threatened her with a

knife. Wallace’s court-appointed appellate counsel has filed a motion to withdraw on the ground

that there is no basis for a good faith argument on appeal. We grant counsel’s motion to

withdraw and we dismiss Wallace’s appeal.

                                            ANALYSIS

A.     LEGAL PRINCIPLES

       Under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967),

appellate counsel for a criminal defendant is authorized to file a motion to withdraw if there are

no nonfrivolous grounds that can be raised on appeal.

       “[I]f counsel finds his case to be wholly frivolous, after a conscientious
       examination of it, he should so advise the court and request permission to
       withdraw. That request must, however, be accompanied by a brief referring to
       anything in the record that might arguably support the appeal. A copy of
       counsel’s brief should be furnished the indigent and time allowed him to raise any
No. 49592-9-II


          points that he chooses; the court – not counsel – then proceeds, after a full
          examination of all the proceedings, to decide whether the case is wholly
          frivolous.”

State v. Hairston, 133 Wn.2d 534, 537-38, 946 P.2d 397 (1997) (emphasis omitted) (quoting

Anders, 386 U.S. at 744). If we find that the appeal is wholly frivolous, we will grant the motion

to withdraw and dismiss the appeal. See State v. Theobald, 78 Wn.2d 184, 187, 470 P.2d 188

(1970).

          RAP 18.3(a)(2) outlines the procedure for filing an Anders motion. The motion filed by

the defendant’s attorney must “identify the issues that could be argued if they had merit” with

references to the record, and the motion and answer from the adverse party must be served on the

person represented by counsel seeking to withdraw. RAP 18.3(a).

B.        MOTION PROCEDURE

          Wallace’s counsel followed the procedure required under Anders and under RAP

18.3(a)(2). He filed a motion to withdraw, which included a discussion of issues that potentially

could be raised on appeal. The State filed a response agreeing that there are no nonfrivolous

issues on appeal. Counsel served a copy of the motion to withdraw and the State’s response on

Wallace, and this court informed Wallace of his right to file a statement of additional grounds for

review. Wallace did not file a statement of additional grounds.

C.        ANALYSIS OF POTENTIAL APPELLATE ISSUES

          The material facts are accurately set forth in counsel’s motion to withdraw. Counsel

identified the following potential issues on appeal:

          1. Whether there was sufficient evidence to convict Wallace of second degree
          assault.




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       2. Whether the trial court erred in admitting an exhibit of Facebook messages
       between KN and a defense witness that contradicted the witness’s testimony.

       3. Whether defense counsel provided ineffective assistance when he failed to
       object on Fifth Amendment grounds to testimony that Wallace led the police
       officer to the knife displayed during the crime.

In considering these issues, we have reviewed counsel’s motion and the State’s response. In

addition, as required under Anders, we have independently reviewed the record to determine if

there are other nonfrivolous issues that could be raised on appeal.

       1.   Sufficiency of the Evidence

       One potential issue on appeal is sufficiency of the evidence. We examine the record to

determine whether, after viewing the evidence 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.

State v. Homan, 181 Wn.2d 102, 105, 330 P.3d 182 (2014).

       To prove second degree assault, the State had to establish beyond a reasonable doubt that

Wallace assaulted KN with a deadly weapon, intending to instill apprehension and fear of bodily

injury and, in fact, did so. See RCW 9A.36.021(1)(c). The jury was instructed that an “assault”

included an act done with the intent to create apprehension and fear of bodily injury in another

person and that did in fact create a reasonable apprehension and fear of imminent bodily injury.

See State v. Abuan, 161 Wn. App. 135, 155, 257 P.3d 1 (2011).

       Here, KN testified that Wallace slapped her across the face during a heated argument.

When she told Wallace that she was going to call the police, he went into the kitchen, returned

with a long knife at his side with the blade pointed toward her, and told her he was going to kill

her. KN testified that she was fearful for herself and her two children, one of whom was at her

side and the other was in her arms.


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          This evidence presented at trial was sufficient to support Wallace’s conviction of second

degree assault. Asserting a sufficiency of the evidence claim on appeal would be frivolous.

          2.   Admission of Facebook Evidence

          A second potential issue on appeal is the trial court’s admission of an exhibit containing

Facebook communications between KN and a defense witness. We review a trial court’s

decision to admit evidence for an abuse of discretion. State v. Garcia, 179 Wn.2d 828, 846, 318

P.3d 266 (2014). A trial court abuses its discretion where its decision is manifestly unreasonable

or based on untenable grounds or reasons. Id. Before a trial court admits evidence, the

proponent must authenticate or identify it “to support a finding that the matter in question is what

its proponent claims.” ER 901(a); see State v. Bashaw, 169 Wn.2d 133, 140-41, 234 P.3d 195

(2010).

          Wallace called KN during his case-in-chief to address communications she had after the

assault with Tiffani Cummings, Wallace’s sister. KN stated that she had a Facebook

conversation with Cummings after the assault, but she denied having had any telephone calls

with her. KN also denied telling Cummings that Wallace did not have a knife.

          Cummings testified that after the assault, she communicated with KN on Facebook and

then spoke on the phone with KN twice: once before KN spoke with the police and once

afterward. According to Cummings, during the second conversation KN said that Wallace did

not have a knife. On cross-examination, the State offered and the trial court admitted (over

Wallace’s objection) an exhibit displaying a Facebook conversation between KN and Cummings.

Cummings acknowledged that the exhibit was a Facebook conversation that she had with KN on




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No. 49592-9-II


the day of the assault. The State then questioned Cummings about incongruities regarding the

timing and content between her testimony and the Facebook conversation.

       Cummings’ own testimony authenticated the exhibit when she admitted that it reflected a

conversation she had had with KN. This testimony satisfied ER 901(a). And the State

introduced the exhibit in order to cross-examine Cummings about incongruities between her trial

testimony and the content and timing of the Facebook conversation. This exhibit was admissible

under ER 613(b) because it was extrinsic evidence of a prior inconsistent statement and

Cummings was allowed to explain the inconsistencies.

       The trial court did not abuse its discretion in admitting the Facebook exhibit. Asserting a

claim on appeal that the trial court erred in admitting the exhibit would be frivolous.

       3.   Ineffective Assistance of Counsel

       The third potential issue on appeal is ineffective assistance of counsel regarding the

failure to challenge Wallace’s nonverbal communication regarding the knife’s location. We

review ineffective assistance of counsel claims de novo. State v. Estes, 188 Wn.2d 450, 457, 395

P.3d 1045 (2017). To prevail on an ineffective assistance claim, the defendant must show both

that (1) defense counsel’s representation was deficient and (2) the deficient representation

prejudiced the defendant. Id. at 457-58. Representation is deficient if, after considering all the

circumstances, it falls below an objective standard of reasonableness. Id. at 458. There is a

strong presumption that counsel’s performance was effective. Id.

       The Fifth Amendment to the United States Constitution provides that no person can be

compelled to be a witness against himself. A police officer violates this protection when he or




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she induces a subject to reveal the location of incriminating evidence absent Miranda1 warnings.

See State v. Spotted Elk, 109 Wn. App. 253, 258-61, 34 P.3d 906 (2001) (applying Fifth

Amendment to the act of producing incriminating evidence). To preserve a Miranda waiver

issue for appeal, a defendant must raise the issue at a CrR 3.5 hearing. State v. Campos-Cerna,

154 Wn. App. 702, 710, 226 P.3d 185 (2010).

         Here, the investigating officer contacted Wallace on the evening of the assault. She

explained to Wallace why she was there, arrested him, and placed him in handcuffs. She then

asked Wallace about the knife, and he took her to the knife. Before trial, defense counsel waived

a CrR 3.5 hearing because “[Wallace] wasn’t compelled or anything like that. . . . He voluntarily

and freely gave it, and it wasn’t under compulsion. . . . He was Mirandized.” Report of

Proceedings at 6-7. The record contains no evidence that would contradict this statement.

         If Wallace received Miranda warnings before he led the officer to the knife, defense

counsel did not provide ineffective representation by not moving to suppress Wallace’s

nonverbal communication. Asserting a claim on appeal that defense counsel was ineffective on

this basis would be frivolous.

         4.   Other Nonfrivolous Issues

         We have independently reviewed the record. We are unable to identify any nonfrivolous

issues that could be raised on appeal.




1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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                                          CONCLUSION

        The three potential issues that appellate counsel identified are wholly frivolous and our

independent review of the record has disclosed no other nonfrivolous issues. Accordingly, we

grant counsel’s motion to withdraw and we dismiss Wallace’s appeal.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                      MAXA, A.C.J.


 We concur:



 JOHANSON, J.




 SUTTON, J.




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