                                                                                                                  FILED
                                                                                                          COURT OF APPEALS
                                                                                                               WWV SJON 11
                                                                                                         2014 JUL 15 AN 10:

                                                                                                         STr E6v          HNGTON

    IN THE COURT OF APPEALS OF THE STATE OF WASHING\                                                                 1TY,


                                                   DIVISION II

STATE OF WASHINGTON,                                                                 No. 42964 -1 - II


                                       Respondent,


         v.



ALFRED JOSEPH SANCHEZ,                                                       UNPUBLISHED OPINION


                                       Appellant.


         MAxA, J. — Alfred Sanchez appeals his bench trial conviction for first degree assault


with a deadly weapon for stabbing a person with a knife during a fight outside a bar in Olympia.

He argues that ( 1) the trial court erred in denying his motion to suppress statements he made to

investigating   officers, ( 2)   his   waiver of   his   right   to a jury trial   was   invalid, ( 3) the evidence was


insufficient to support his conviction, and ( 4) his counsel was ineffective for a number of

reasons.




         We hold that ( 1) the trial court properly denied Sanchez' s suppression motion because his

statements were voluntary even though his military superior ordered him to cooperate with

investigating   officers; (   2) Sanchez' s jury trial waiver was made knowingly, intelligently, and

voluntarily because he submitted a written waiver and the trial court engaged in two colloquies

with   him regarding his      rights; ( 3)   the trial court' s unchallenged findings and findings supported


by substantial evidence are sufficient to sustain Sanchez' s conviction; and ( 4) Sanchez fails to

show   how his   counsel' s performance was              deficient. We     affirm.
42964 -1 - II



                                              FACTS


Stabbing Incident

         On the evening of March 27, 2009, a group of Fort Lewis soldiers, including Sanchez,

went to Charlie' s Tavern in downtown Olympia. Bradley Merten also was at the bar that night

with a group of friends. Merten' s friends had an argument with some of the soldiers outside the

bar, and as Merten and his friends were walking to their car after leaving the bar, Merten' s

friends and the soldiers began fighting. Merten felt as though he had been punched in the back

and, when he turned around to see who had punched him, he saw a man in a black hat and a

black jacket standing on the other side of a car. When Merten asked the man if he had punched

him, the man ran away. Merten later identified the man as Sanchez.

         Merten realized he had actually been stabbed, not punched, and he was taken to the

hospital. Merten' s stab wound injuries included a partially collapsed lung, a fractured rib, and a

laceration on his liver.


         An Olympia police officer questioned Merten at the hospital. Merten stated that the

person who had stabbed him was a white male wearing a black North Face jacket and black

baseball cap. He said that he recognized the individual from seeing him talk to his friends

outside the bar and he knew that the individual had been removed from the bar because he had

kicked in the back door. The detective showed Merten a photomontage containing Sanchez' s

photo, but Merten could not identify the person he saw. On April 1, 2009, the detective showed

Merten    a second montage   containing Sanchez'   s photo, and   Merten identified Sanchez.
42964 -1 - II



Sanchez' s Statements to Detectives


         Because many of the participants in the fight had left by the time detectives arrived,

Olympia police detectives went to Fort Lewis to further investigate. The involved soldiers'


commanding officer stated that he ordered them " to cooperate with and be interviewed by local

law   enforcement."         Clerk' s Papers ( CP) at 40. The commanding officer further stated that he

 made it very clear to them that they were being ordered to do whatever the police asked them to

do, including giving a statement regarding participation in the events that had transpired earlier

that morning."         CP   at   41.   The detectives questioned each involved soldier individually in the

barracks.


         Before interviewing Sanchez, one of the detectives informed him of his Miranda' rights.

Sanchez acknowledged that he understood his rights and agreed to waive them. The detective


then asked Sanchez to give a recorded statement. On the recording, the detective stated that

Sanchez had been informed of his rights earlier. The detective then asked Sanchez if he

understood       his   rights, and     he   responded, "    Yes."   The detective asked if Sanchez was willing to

speak   to him, to      which     Sanchez      also responded, "        Yes."   The detective then read Sanchez his


Miranda rights again on the record, again asked if he understood those rights, and again asked

whether     he   wanted     to   speak   to   the   officers.   Sanchez    responded   in the   affirmative.   Sanchez


proceeded to give a recorded statement to the detective in which he expressly denied stabbing




1 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L.Ed.2d 694 ( 1966).



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42964 -1 - II



Merten. The State charged Sanchez with first degree assault while armed with a deadly

weapon. 2

Motion to Suppress and First Trial


            Sanchez moved under CrR 3. 5 to suppress statements he had made to the police officers


arguing that they were involuntary because his superior military officer had ordered him to

cooperate. The trial court denied the suppression motion. The .
                                                              court found that Sanchez was not


in custody when the statement was made. The court further ruled that Sanchez was read his

Miranda rights and that his superior officer' s direct order to cooperate with the police did not


render the questioning improper. At that time the trial court did not enter findings of fact or

conclusions of law supporting its ruling.

            Sanchez' s first trial was before a jury, which was unable to reach a verdict. The trial

court declared a mistrial. The State again charged Sanchez with first degree assault while armed

with a deadly weapon. The case again was set for trial.

Motion to Waive Jury Trial

            Sanchez moved to waive his right to a jury trial. In support of the motion, Sanchez' s

counsel argued that it had been two years since the original jury trial and none of the service

members present on the night of the stabbing were available to testify. Therefore, she stated,

    I] n   order   to accurately portray this story ...         we' d be reading 10, 15 transcripts into the record,

and    it' s my    concern   that   we'   d lose the   jury."   Report   of   Proceedings II (RPII)   at   21.   She further


expressed concern          that " the   jury not having     seen   those   witnesses ...   how they presented

themselves, how they testified, it would be very difficult for them to judge the credibility of a

2
    The State also charged Sanchez with first degree burglary. However, the trial court later
granted Sanchez' s motion for a directed verdict on this charge and it was dismissed.



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42964 -1 - II



reading." RPII        at   21.   Sanchez' s counsel argued that because the trial judge had been there


during the first trial and had the opportunity to observe the witnesses testifying in person, it

would be more likely that Sanchez would receive a fair trial if his case were tried to the judge

who    had originally         observed      the   witnesses.   She further stated that a bench trial was appropriate


because "[      a] lot of what the Court is going to be considering now is going to be legally technical

information anyway."              RPII at 22.


         Sanchez' s counsel informed the trial court that she had reviewed Sanchez' s constitutional


rights with     him   and     that her "    client well understands     that he'   s ..     putting his future in the hands

of one person.        I' ve   explained      to him that there'   s no such   thing       as a   hung judge."     RPII at 22.


Defense    counsel      further       stated, "   I have gone over the constitutional rights that my client would

give   up today."      RPII      at   18.   Sanchez also submitted a written waiver of his right to a jury trial,

stating that he was represented by counsel and waived his right to a jury trial as well as his right

to have the jury decide the deadly weapon sentencing enhancement.

         The trial court then reviewed Sanchez' s rights with him. When asked by the trial court

whether he understood that it was very unusual to waive the right to a jury, whether he had gone

over with defense counsel what it means to waive this right, and whether he was waiving his

right to have a jury decide the deadly weapon aggravating factor, Sanchez responded in the

affirmative. The court also asked Sanchez how long he had discussed the jury trial waiver with

counsel   before making the decision, to                which    Sanchez   responded, "          A   month or   two."   RPII at 26.


          After taking a recess to consider the jury trial waiver issue, the trial court again discussed

the issue with Sanchez, confirming that Sanchez understood that he was waiving his

constitutional right to have 12 disinterested jurors try him and that he was waiving his right to



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42964 -1 - II



have a jury decide the deadly weapon enhancement issue. The trial court then confirmed with

Sanchez that he was not being coerced into waiving his right to a jury trial, that no one had made

any promises in exchange for his waiver, and that he had discussed the matter multiple times

with his attorney over the course of approximately one month. The trial court accepted

Sanchez' s motion to waive jury trial.

Bench Trial and Conviction


         The case proceeded to trial before the court. The trial court found Sanchez guilty as

charged. Sanchez appeals. We subsequently remanded to the trial court to enter findings of fact

and conclusions of law from the CrR 3. 5 hearing so that we could review the suppression issue

on appeal.



                                                   ANALYSIS


A.       FAILURE To SUPPRESS SANCHEZ' S STATEMENTS


         The trial court denied Sanchez' s CrR 3. 5 motion to suppress statements he made to


investigating   police   detectives.     Sanchez argues that the trial court erred in concluding that his

waiver of his Miranda rights was knowing and voluntary. He argues that his statement was not

voluntary because he was ordered by a military commanding officer to cooperate with the

detectives. We disagree.


          1.    Standard of Review


         In reviewing a trial court' s denial of a suppression motion, we determine whether

substantial evidence supports the trial court' s findings of fact and whether the findings support

the   conclusions of   law. State   v.   Ross, 106 Wn.   App   876, 880, 26 P. 3d 298 ( 2001).   We review


conclusions of law de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P. 2d 293 ( 1996).




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42964 -1 - II



         A defendant is deprived of due process of law under the Fifth Amendment to the United

States Constitution if his conviction is founded, in whole or in part, upon an involuntary

statement.      Jackson   v.   Denno, 378 U. S. 368, 376, 84 S. Ct. 1774, 12 L.Ed. 2d 908 ( 1964).   The


inquiry is whether, under the totality of the circumstances, the defendant' s confession was

coerced. State v. Broadaway, 133 Wn.2d 118, 132, 942 P. 2d 363 ( 1997).

         2.      Challenged Findings of Fact


         Sanchez challenges all but two of the trial court' s eight findings of fact on his CrR 3. 5

suppression motion. However, the evidence presented at the suppression hearing clearly

supports the findings relevant to our analysis: that Sanchez twice waived his Miranda rights.

The detectives testified, and Sanchez agreed on cross -examination, that Sanchez was advised of


his Miranda rights and expressly waived those rights both before he gave an oral statement and

before he gave a recorded statement. Accordingly, we reject Sanchez' s challenge to the trial

court' s factual findings regarding waiver.3
         3.      Valid Waiver


         Sanchez challenges the trial court' s legal conclusion that the waiver of his Miranda rights

was voluntary, arguing that his waiver could not be voluntary when his military superior ordered

him to cooperate with the local civilian police. It is undisputed that a military superior ordered

Sanchez to submit to an interview with Olympia Police Department detectives and to cooperate

with them. But the trial court ruled that this fact did not mean that the waiver was involuntary.

We agree with the trial court.




3 Sanchez also challenges the trial court' s factual finding and legal conclusion that he was not
physically restrained, in custody, or under arrest at the time he gave the statements. But whether
or not Sanchez was in custody is immaterial because he was advised of his Miranda rights.

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42964 -1 - II



         A private party' s conduct generally cannot render a statement inadmissible under the

Fifth Amendment. See State                v.   Unga, 165 Wn.2d 95, 100 -01, 196 P. 3d 645 ( 2008) ( holding    that

police coercion       is   a " ` crucial element' "    when   determining   voluntariness) (   quoting Withrow v.

Williams, 507 U. S. 680, 693 -94, 113 S. Ct. 1745, 123 L.Ed.2d 407 ( 1993)).

         Because the Fifth Amendment protects a person from being compelled to give evidence
         against himself or herself, the question whether admission of a confession constituted a
         violation of the Fifth Amendment does not depend solely on whether the confession was
         voluntary;          coercive police activity is a necessary predicate to the finding that a
                           rather, "

         confession is not `voluntary' ".

Unga, 165 Wn.2d at 100 -101 ( quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S. Ct. 515,

93 L.Ed.2d 473 ( 1986)).           As a result, even outrageous behavior by a private party to force a

statement      does   not make     that   statement   inadmissible.   Connelly, 479 U. S. at 166.

         Here, there is no allegation that the detectives interviewing Sanchez engaged in coercive

conduct to obtain Sanchez' s statement. The only alleged coercive conduct came from a party

unrelated      to the detectives' investigation —Sanchez'          s military superior. Because there was no

coercive police activity, Sanchez' s waiver of his Miranda rights was voluntary even though his

superior ordered him to cooperate. Accordingly, we affirm the trial court' s denial of Sanchez' s

motion to suppress his statements.


B.       WAIVER OF JURY TRIAL


         Sanchez argues that the trial court erred when it accepted his jury trial waiver. We

disagree.


          1.     Legal Principles


         A criminal defendant may waive his constitutional right to a jury trial. State v. Stegall,

 124 Wn.2d 719, 725, 881 P. 2d 979 ( 1994).                The State bears the burden of establishing the




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42964 -1 - II



validity of such a waiver. State v. Cham, 165 Wn. App. 438, 447, 267 P. 3d 528 ( 2011),

remanded on other grounds,            175 Wn.2d 1022 ( 2012).         In order to uphold a jury trial waiver, the

record must adequately establish that the defendant waived his right knowingly, intelligently, and

voluntarily. State     v.   Benitez, 175 Wn.   App.   116, 128, 302 P. 3d 877 ( 2013).          We review the


validity of a defendant' s jury trial waiver de novo. Benitez, 175 Wn. App. at 128.

         CrR 6. 1(   a) provides: "   Cases required to be tried by jury shall be so tried unless the

defendant files a    written waiver of a     jury trial, and    has   consent of the court."     Although a written


waiver is not dispositive as to a defendant' s jury trial waiver, a written 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).         An attorney' s representation to the court that the defendant' s

waiver is knowing, intelligent, and voluntary also is relevant evidence supporting the validity of

a jury trial waiver. Benitez, 175 Wn. App. at 128. Unlike the waiver of other constitutional

rights, a valid waiver of the jury trial right does not require an extensive colloquy on the record.

Benitez, 175 Wn. App. at 128 -29. Rather, only a personal expression of waiver from the

defendant is required. Pierce, 134 Wn. App. at 771.

         2.      Valid Waiver


         Here, when Sanchez moved to waive jury trial, his counsel .informed the trial court that

she had reviewed Sanchez' s constitutional rights with him and that Sanchez understood those


rights. Sanchez also submitted a signed, written waiver of his right to a jury trial, stating that he

was represented by counsel and waived his right to a jury trial as well as his right to have the jury

decide the deadly weapon sentencing enhancement. The trial court reviewed Sanchez' s rights

with him twice on the record and confirmed that Sanchez had discussed the matter extensively




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42964 -1 - II



with defense counsel. Only after two independent colloquies with Sanchez did the trial court

accept his motion to waive his jury trial right. Sanchez' s written waiver and two colloquies with

the trial court were more than sufficient to constitute a knowing, intelligent, and voluntary

waiver of his right to a jury trial.

         Sanchez nevertheless argues that his waiver was invalid because there was no record of

what he discussed with counsel. However, defense counsel stated on the record that she had

reviewed Sanchez' s rights with him and that she had explained to Sanchez the effect of having

his   case   tried to only   one   party, explaining, "[ T] here'   s no such   thing   as a   hung judge."   RPII at


22. Further, the trial court confirmed with Sanchez on two occasions that he had discussed the

matter with counsel for at least one month preceding trial. Sanchez cites no authority supporting

his contention that more explanation' of what counsel discussed with him was required, and we

are aware of none.



             Sanchez also argues that his written waiver was inadequate because the waiver did not


inform him that he had the right to a unanimous jury. But Sanchez submitted a waiver in this

case, and the waiver provided that Sanchez was represented by counsel and that he was waiving

his right to a 12- person jury to decide both the underlying offense and the enhancement.

Sanchez provides no authority supporting his claim that the waiver itself was required to provide

him any additional information.

             Sanchez next argues that his waiver was inadequate because he was not advised that he


was giving up the right to participate in jury selection. However, we have explicitly held that a

defendant is not required to be informed of the right to participate in juror selection in order for


his jury trial waiver to be valid. Pierce, 134 Wn. App. at 773.



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42964 -1 - II



          Finally, Sanchez argues that the waiver was invalid because he was not advised of his

statutory right to have a different judge hear the case. But again Sanchez fails to cite any

authority stating that this was required, and " we have not required that a defendant be apprised of

                                               in           for the defendant' s            to be   valid."   Benitez, 175
every   aspect of   the   jury trial   right        order                          waiver




Wn. App. at 129.

          We hold that the record supports Sanchez' s knowing, intelligent, and voluntary jury trial

waiver.




C.        SUFFICIENCY OF THE EVIDENCE


          Sanchez challenges many of the trial court' s findings of fact and argues that the evidence

was insufficient to support his conviction. We disagree.

          1.    Legal Principles


          Evidence is sufficient to support a conviction if after viewing the evidence and all

reasonable inferences from it in a light most favorable to the State, a rational trier of fact could

find each element of the crime proved beyond a reasonable doubt. State v. Higgs, 177 Wn..App.

414, 436, 311 P. 3d 1266 ( 2013),              review   denied, 179 Wn.2d 1024 ( 2014). A claim that the


evidence was insufficient admits the truth of the State' s evidence and all reasonable inferences

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


defer to the trier of fact on issues of conflicting testimony, witness credibility, and

persuasiveness of the evidence. State v. Thomas, 150 Wn.2d 821, 874 -75, 83 P. 3d 970 ( 2004).

          A challenge to the sufficiency of the evidence presented at a bench trial requires us to

review the trial court' s findings of fact and conclusions of law to determine whether substantial

 evidence supports the challenged findings and whether the findings support the conclusions.




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42964 -1 - II



State   v.   Homan, 172 Wn.                App. 488,   490, 290 P. 3d 1041 ( 2012), review granted, 177 Wn.2d 1022


 2013).       Evidence is substantial if it is sufficient to convince a fair -
                                                                             minded, rational person of the


finding' s        truth. State       v.   McEnry,   124 Wn.   App.    918, 924, 103 P. 3d 848 ( 2004). Unchallenged


findings of fact are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870 P. 2d 313 ( 1994).

We review the trial court' s conclusions of law de novo. Homan, 172 Wn. App. at 490.

             2.         Challenged Findings of Fact


             Sanchez challenges many of the trial court' s findings of fact in his assignments of error,

but does not provide briefing supporting findings 5, 7, 8, 11, 12, 15, 16, 17, 18, 23, 26, 27.

Accordingly,              those    assignments of error are waived.        RAP 10. 3(     a)(   6); see also Thomas, 150


Wn.2d at 874 ( absent supporting argument or citations to relevant authority, an assignment of

error   is   waived).          Sanchez also challenges finding of fact 21 in his briefing but does not include

that finding in his assignments of error. Accordingly, we also decline to review that challenge.

RAP 10. 3( g).             We address each of Sanchez' s remaining, properly challenged findings of fact to

determine whether they are supported by substantial evidence.

                         a.    Finding of Fact 3

             Sanchez challenges the portion of the trial court' s Finding of Fact 3 that provides that

Merten'      s"        injuries,   without   immediate   medical     intervention,     were   life -
                                                                                                   threatening."   CP at 706.


Sanchez argues that the physician who admitted Merten to the hospital " did not believe


 Merten'          s]   injuries    created a   probability   of   death." Br.   of   Appellant   at   56. But Sanchez' s


contention is directly contradictory to the testimony. In response to the question whether

Sanchez'          s    injuries, if left   untreated, were    life -
                                                                   threatening, the     physician answered, "      Yes."   The




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42964 -1 - II



trial court' s Finding of Fact 3 is almost a direct quote from this statement, and therefore it is

clearly supported by the evidence.

                 b.    Finding of Fact 6

         A cook from Charlie' s testified that one of the knives that normally was on a magnetic

hanger in the kitchen was missing, but that he had seen it when he left the bar on the evening of

March 27. Sanchez            challenges      Finding   of   Fact 6,   which provides: "   The missing knife appears

consistent with       the   width of   the   stab wound received         by Mr. Merten."    CP   at   707. Sanchez notes


that the physician who treated Merten at the hospital testified that the length of the stab wound


was approximately 1. 9 inches across. The physician stated that he did not know the depth of the

wound with certainty, but estimated that it would have been approximately 6 inches. The record

shows that the knife taken from the kitchen had a 5 -inch handle and a 5 - inch blade and was


approximately one and a half inches wide. Because the estimates of the width and depth of

Merten' s wound were approximations, the trial court reasonably could have concluded that the

dimensions of the knife taken from the kitchen were consistent with Merten' s wounds.


         Sanchez also appears to argue that the finding was unsupported because although there

was evidence that the knife taken from the bar was extremely sharp, the stab wound was

 ragged."       Br. of Appellant at 57. But the testimony Sanchez cites discusses the nature of the

cuts in the fabric of Merten' s T -shirt, not the nature of the body wound. Further, the witness

explained that the nature of that cut likely was caused by fabric being pulled against the knife in

a struggle. The testimony said nothing about the tears in the shirt being inconsistent with the

type of knife used. Merten' s treating physician testified that the nature of the wound gave reason




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42964 -1 - II



to believe that it was caused by a sharp object, consistent with a knife wound. The finding was

supported by substantial evidence.

                c.     Findings of Fact 9 and 10


          The State introduced video surveillance footage into evidence that, according to the

State' s expert, depicted Sanchez walking through the kitchen. The expert testified that as

Sanchez walked through the kitchen, he reached toward the area where the knives were kept and

that his hand moved toward his rear pocket. Sanchez challenges Finding of Fact 9, which

provides:




          Surveillance video shows the defendant in the kitchen and his left hand going up
          to where the knives are stored and where the missing knife is described as being
          earlier in the evening. The video then shows a knife going into the defendant' s
           back left   pocket.   The video further shows that as the defendant enters the tavern
           from the kitchen, he is pulling down the left side of his shirt.

CP   at   707. He    also challenges   Finding   of   Fact 10,   which provides: "   The defendant did take the


missing knife from the kitchen."         CP at 707.


           The video played to the trial court is not in the record before us on appeal. However, the

State hired a video expert to examine the video and he testified about his findings at trial while


playing the video for the trial court. The expert stated that he saw Sanchez' s feet move into the

kitchen area in front of where the knives were kept and that Sanchez moved forward and his

jacket on his left side raised upwards. Sanchez' s left hand then became visible and there was a

thin reflective object in his hand as he moved his hand toward his rear left pocket. He then took

hold of his jacket and pulled the jacket down over his rear left pocket. The expert identified

Sanchez as the individual in the video by his clothing description and his position in the video.

This testimony is consistent with the trial court' s findings.



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42964 -1 - II



         Sanchez states that the trial court' s findings that he took the knife were unsupported


because there was testimony that " some force was required to remove the knives from the

magnetic strip" in Charlie' s kitchen. Br. of Appellant at 60. However, he does not cite any

evidence that the force allegedly required to take the knife from the magnetic strip would have

affected his ability to take the knife as shown by the video. Sanchez also argues that the findings

were unsupported because the knife was so sharp that it was unlikely that someone would place

it in his pants pocket without " at a minimum some torn trousers and at a maximum some severe


physical   discomfort   and   injury.   Mr. Sanchez did     not evince either."   Br. of Appellant at 60. But


again, Sanchez provides no citations to the record supporting his claim.

         Sanchez further argues that the findings were not supported by substantial evidence

because the surveillance video shows only his lower leg and shoes as he walks in the kitchen.

But without the aid of the video, we must rely on the expert' s testimony which stated that he

could conclude the actor in question was Sanchez by the clothes he was wearing and his position.

Accordingly, the trial court' s finding regarding what took place on the video was supported by

substantial evidence, and this further supports the trial court' s finding that Sanchez took the knife

from the kitchen.


                 d.   Finding of Fact 13

         Sanchez challenges the trial court' s Finding of Fact 13, which provides that Thomas

Gallagher, a service member who was present at Charlie' s, confirmed Sanchez' s presence while


a group of military service members were leaving the bar as the fight started. Sanchez claims

that this finding " eludes appellate review" because it "cannot be determined at what time Mr.

 Gallagher      confirmed   Mr. Sanchez to be   present."    Br. of Appellant at 61.




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42964 -1 - II



         Gallagher testified that he was with Sanchez at Charlie' s on March 27, 2009. He testified


that as he and a friend were leaving the bar, Sanchez and Melville were approximately 15 to 20

meters behind him. Gallagher stated that a crowd of people then came out of the bar and a fight

broke out. He testified that the last time he saw Sanchez was when he was walking behind him

leaving the bar with Melville. Contrary to Sanchez' s assertion that it was unclear when

Gallagher confirmed Sanchez to have been present, Gallagher clearly stated the last point at

which he saw Sanchez and this testimony in turn supports the trial court' s finding that Sanchez

was outside the bar when the fight started. Accordingly, Finding of Fact 13 was supported by

substantial evidence.



                e.        Finding of Fact 14

         Sanchez          challenges   Finding    of   Fact 14,   which provides, "     The defendant was the only one

not accounted for once the fight started. All of the other participants were either fighting or

leaving."   CP       at   707.   Sanchez claims that the record shows that " Sanchez was trying to leave

and   making    efforts     to find   a ride   back to the base."      Br.   of   Appellant   at   61.   In support of this


contention, he cites testimony regarding repeated phone calls Sanchez made on his cellular

phone after the fight broke out.


         But the testimony supports the trial court' s conclusion that the individuals present when

the fight broke out were either participating in the fight or leaving the scene, and that no one

could account for where Sanchez was at that time. Gallagher testified that he was on his way

back to his car when the fight broke out, and that he saw Melville walking in the street after the .

fight but did not see Sanchez. He further testified that Jason Britt left the bar with him and was




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42964 -1 - II



standing with him by his car when the fight took place. He testified that he waited by his car for

his friends and Britt went back into the bar.


         Wesley Sims, another service member at the bar that night, testified that the fight already

had started when he and Justin Spangler left the bar. He testified that Abraham Zenker had


pulled his car in front of the bar by that time and that he, Melville, Zenker, Andrew Thomas, and

Jim Elmer rode away together. There was no testimony regarding Sanchez either being involved

with the fight or leaving with the others. Accordingly, the finding was supported by substantial

evidence.




                     f.    Findings of Fact 19 and 20


         Sanchez challenges the trial court' s Findings of Fact 19 and 20, which provide:


         19. Mr. Merten ...describes his attacker as having a medium -
                                                                     build, being 5' 8",
         weighing approximately 155 pounds, wearing a black hat and black jacket, and
         identifies him        as   the defendant. In August of 2009, in an interview with Mr. Fred
         Doughty, Mr. Merten described the stabber as having gelled hair.
         20.     The victim' s testimony and identification of the defendant as his attacker was
         credible.



CP at 708.


         As to Finding of Fact 19, Sanchez appears only to challenge the portion of the finding

stating that Sanchez          was   wearing " a black hat and black jacket," arguing only that "[ t]he trial


court   failed to resolve Merten' s inconsistent descriptions         of   his   assailant' s   clothing."   Br. of


Appellant       at   61.   But Merten did testify that Sanchez was wearing a black hat and black jacket on

the night in question. This finding is supported by the record. We do not re -weigh evidence or

assess witness credibility, and therefore we do not consider Sanchez' s argument that the trial

court should have considered any allegedly inconsistent testimony when the record clearly



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42964 -1 - II



supports   the   finding.   Thomas, 150 Wn.2d             at   874 -75.     Similarly, because we do not evaluate

witness credibility, we decline to address Sanchez' s challenge to the trial court' s finding that

Merten was credible.


                 g.   Finding of Fact 24

         Sanchez      challenges   the trial   court' s   Finding      of   Fact 24,   which provides: "   The entire fight


from start to finish, including the stabbing and the chase, occurred within two to three minutes,

from approximately 1: 22 to 1: 25        am."      CP at 708. He argues that the record shows that Sanchez

was on his telephone at 1: 24 a.m. and therefore could not have been involved in the fight or

resultant stabbing.


         Sanchez is correct that his phone records showed that he made a call at 1: 24 a.m. But

Sanchez fails to show that this fact disproves the trial court' s finding regarding the time at which

the fight took place. Further, this fact does not mean that Sanchez was not involved in the fight,

as Sanchez claims, because he could have engaged in the fight during the first two minutes of the

fight and subsequently made a phone call. Accordingly, this finding was supported by

substantial evidence.



                 h.    Finding of Fact 25

         Sanchez challenges the portion of the trial court' s Finding of Fact 25 that provides that

after the stabbing Sanchez " was picked up by a cab far away in a desolate place, a darkened

alleyway in      a residential neighborhood,        approximately            one mile   away."   CP at 708. He argues


that the finding is not supported because the cab driver picked Sanchez up on a public street in a

residential neighborhood in Olympia, and that there was insufficient evidence that he picked


Sanchez up in an alleyway. The cab driver testified that he picked Sanchez up in a residential



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area east of downtown Olympia. He further testified that Sanchez came out of an alley when he

picked him up. This finding was supported by substantial evidence.

         3.     Sufficiency of the Evidence

         Sanchez argues that the evidence was insufficient to support the trial court' s conclusions


regarding ( 1) the   assailant' s   identity, (2) intent, and (3) great bodily harm. We disagree.

         The trial court found Sanchez guilty of first degree assault under RCW 9A.36. 011, which

provides:



          1)  A person is guilty of assault in the first degree if he or she, with intent to
         inflict great bodily harm:
              a) Assaults another with a firearm or any deadly weapon or by any force or
         means likely to produce great bodily harm or death; or .. .
                c) Assaults another and inflicts great bodily harm.

         Sanchez argues that the State failed to prove the assailant' s identity because it did not

provide evidence of a photo montage and because there were differing descriptions of the

assailant at the hospital. But Sanchez does not provide any support for his assertion that the

State was required to provide a photo montage and does not cite the portion of the record in


which the allegedly differing descriptions are located. Further, the trial court' s findings

regarding Sanchez' s identity were supported by substantial evidence.

         Sanchez'    s argument     regarding intent merely       states, "   No   evidence of   intent." Br. of


Appellant at 65. He does not tie the argument in to his challenges to the findings of fact and


does not provide any citation to legal authority regarding the State' s requirement to prove intent.

         Sanchez' s argument on great bodily harm provides only that " medical testimony is

dispositive here."     Br. of Appellant at 65. He cites no legal authority and does not explain why

the findings do     not support     this   conclusion. " `   Great bodily harm' means bodily injury which



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creates a probability of death, or which causes significant serious permanent disfigurement, or

which causes a significant permanent loss or impairment of the function of any bodily part or

organ."    Former RCW 9A.04. 110( 4)(    c) (   2007).    The trial court' s supported finding provides that

Sanchez' s injuries were life -
                              threatening without immediate medical intervention. This finding

supports the trial court' s conclusion that Sanchez inflicted great bodily harm on Merten.

D.        INEFFECTIVE ASSISTANCE OF COUNSEL


          Sanchez argues that his trial counsel was ineffective for a number of reasons, none of

which have merit.


          1.    Legal Principles


          We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009). To prevail on an ineffective assistance of counsel claim,


the defendant    must show   both ( 1) that defense      counsel' s representation was "   deficient," and ( 2)


that the deficient representation prejudiced the defendant. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 ( 1984); State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d


1260 ( 2011).    The failure to show either element ends our inquiry. Grier, 171 Wn.2d at 33.

Representation is deficient if, after considering all the circumstances, it falls below an objective

standard of reasonableness. Grier, 171 Wn.2d at 33. Prejudice exists if there is a reasonable


probability that except for counsel' s errors, the result of the proceeding would have been

different. Grier, 171 Wn.2d at 34.

          We give great deference to trial counsel' s performance and begin our analysis with a


strong presumption that     counsel' s performance was reasonable.         Grier, 171 Wn.2d       at   33. A


claim that trial counsel provided ineffective assistance does not survive if trial counsel' s conduct




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can   be   characterized as     legitimate trial strategy   or   tactics.   Grier, 171 Wn.2d   at   33. To rebut the


strong     presumption   that   counsel' s performance was effective, "          the defendant bears the burden of


establishing the absence of any `conceivable legitimate tactic explaining counsel' s

performance.' "       Grier, 171 Wn.2d       at   42 ( emphasis    omitted) (   quoting State v. Reichenbach, 153

Wn.2d 126, 130, 101 P. 3d 80 ( 2004)).

           2.    Failure to Admit Photo Montage

           At the bench trial, defense counsel entered into evidence the first photo montage in which

Merten could not identify Sanchez. At the jury trial, defense counsel successfully had moved to

exclude the second photo montage in which Merten did identify Sanchez. Sanchez now argues

that his counsel should have moved to admit the positive identification and photo montage into

evidence at the bench trial. The trial court originally excluded the montage as too suggestive

because it pictured Sanchez on a lighter background than all of the other photos. Sanchez argues

that because the second montage was so suggestive, it would have shown that " Merten had no

real independent recollection and had to [ be] impermissibly reminded of the identity of his

assailant."      Br. of Appellant at 67 ( internal quotation marks omitted).


           We hold that Sanchez' s argument fails because it was clearly a tactical decision for trial

counsel to not have wanted to admit evidence of a positive identification of Sanchez as the

assailant. See Grier, 171 Wn.2d at 33.

            3.    Advising Sanchez to Waive Jury Trial

            Sanchez argues that his counsel was ineffective for advising Sanchez to waive his right to

a jury trial because counsel incorrectly determined that the trial court could evaluate witness

credibility based on the previous trial over which the same judge presided. Sanchez is correct



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that his counsel argued to the trial court that one of the reasons it should accept the jury trial

waiver was because the trial court had already heard the witnesses' testimony from the first trial,

had observed their demeanor, and the jury in the new trial would not have that benefit. However,

defense counsel also stated that she was concerned that she would " lose the jury" by having to

read   the transcripts into the      record.       RPII   at   21.   We hold that this was a legitimate tactical

concern and does not support a claim for ineffective assistance. See Grier, 171 Wn.2d at 33.

             4.   Failure to Request Limiting Instruction

             Sanchez argues that his counsel was ineffective for failing to request a limiting

instruction to limit the State' s use of his statement to police only for impeachment. But Sanchez

fails to cite any legal authority in support of his argument that a limiting instruction would have

been appropriate. And even if the evidence supported a limiting instruction, we presume that

defense counsel did not request one in order to avoid reemphasizing any damaging evidence.

State   v.   Dow, 162 Wn.        App.    324, 335, 253 P. 3d 476 ( 2011).         Further, Sanchez fails to show how


a limiting instruction would have been useful in a bench trial. See State v. Melton, 63 Wn. App.

63, 68, 817 P. 2d 413 ( 1991) ( we presume that the trial court disregards inadmissible matters).


Accordingly, because Sanchez has shown neither deficient performance nor prejudice, his

argument fails.


             5.   Failure to Secure Witness for Trial and Failure to Admit Statements

             Sanchez argues that his counsel was ineffective for failing to secure Andrew Thomas as a

witness because he had sent text messages linking him to the assault. He argues that Thomas

should have been called as a witness because of two potentially inculpatory text messages he

sent    to   friends   near   the date   of   the incident.     One   message read: "   I guess there' s a point in every



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young    man' s   life   when   he'   s a suspect   in   a   stabbing incident." RPII at 1655 ( internal quotation


marks omitted).          The   other provided: "    Apparently we were stabbing suspects. I dropped some

big   ass ` roid abuser with a        huge left hand." RPII         at   1656. Sanchez argues that because the case


was one of general denial and misidentification, evidence of other suspects was particularly

important to the case. Further, Sanchez argues that his counsel should have moved to admit the

statements under ER 804( b)( 3).


         But Thomas' s text messages were admitted at trial, over the State' s objection. Moreover,

defense counsel raised the possibility of Thomas as a suspect in closing arguments. Finally,

there is no evidence supporting Sanchez' s contention that counsel failed to investigate Thomas' s

whereabouts. Accordingly, Sanchez has failed to show how he was prejudiced and his claim

fails.


          We affirm Sanchez' s conviction.


          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 pursuant to RCW 2. 06. 040, it is


so ordered.




We concur:




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