      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 70124-0-1
                      Respondent,
       v.                                        DIVISION ONE


JAMES OTIS LESTER,                               UNPUBLISHED OPINION

                      Appellant.                 FILED: April 21, 2014


       Leach, J. — James Lester appeals his conviction for assault in the first

degree, claiming that he was incompetent to stand trial. Because Lester fails to
show that the trial court abused its discretion when it found him competent to

stand trial, we affirm.

                                    Background

       On February 9, 2011, the State charged Lester with assault in the first

degree. Before trial, defense counsel informed the court that he had reason to

believe Lester was not competent to stand trial "due to his declining cognitive

status."    On January 24, 2012, the court ordered a pretrial competency

evaluation by Western State Hospital.

        Dr. John Neer, a defense-retained neuropsychologist, and Dr. Joanna

Johnson, a Western State Hospital forensic psychologist, examined Lester. For

his evaluation, Dr. Neer interviewed Lester, administered a number of cognitive
No. 70124-0-1/2




tests, and reviewed medical records from Harborview Medical Center and Dr.

Johnson's report.     Dr. Neer diagnosed Lester with cognitive disorder not

otherwise specified or dementia not otherwise specified. He testified that Lester

had difficulty remaining focused during their conversation and that Lester has an

IQ of 68, which indicates mild mental retardation to borderline range of

functioning.   But Dr. Neer also testified that Lester understood generally the

charge of murder and "the role of the different courtroom participants," that Lester

expressed faith and trust in his attorney, that Lester was able to talk about the

"the entire court process," and that he was able to "discuss a situation where the

police came, and he was confronted by the police, and he was arrested." In his

report, Dr. Neer stated,

       It is believed that he would be unable to track information presented
       by his attorney, process it in a meaningful manner, and have a
       constructive exchange in conversation about his legal [sic]. It is
       also believed that Mr. Lester would be unable to recall any
       information that he had previously discussed with his attorney. His
       decision-making process would likely be irrational, impulsive and
       perhaps be based on information that is unassociated or loosely
       related to his case. The deficits that are interfering with his ability
       to assist counsel are believed to be secondary to dementia.

       Based on neuropsychological assessment results, clinical
       interviews, and collateral records, it is my opinion that Mr. Lester
       does not have the capacity to assist his attorney in his own defense
       due to his severe cognitive impairments.

Dr. Neer believed it was "fairly unlikely that he would improve to the level of

having a capacity to assist counsel."

       For her evaluation, Dr. Johnson interviewed Lester and his attorney and

reviewed King County Correctional Facility records, Harborview Medical Center
No. 70124-0-1/3




records, information from defense counsel, information from the King County

Crisis and Commitment Services, discovery documents that the State provided,

the Mental Health Division Intranet Database, and a Washington Access to

Criminal History Report from the Washington State Patrol. Lester had no history

of psychiatric hospitalization or outpatient mental health treatment but had past

diagnoses of depression, seizure disorder, and alcohol abuse and dependence.

      Dr. Johnson concluded in her report:

      Mr. Lester presented with no signs or symptoms of psychosis and
      although he exhibited mild memory impairment!,] in my opinion, his
      competence is sufficient to proceed. Mr. Lester appreciates the
      allegations against him, the seriousness of them, and possible
      penalties. He further demonstrated sufficient understanding of
      court procedures, legal strategies and the roles of courtroom
      participants. Regarding any court related information that he
      misunderstands or lacks knowledge of, Mr. Lester demonstrated
      the capacity to learn new information and subsequently to
      reasonably apply it to his legal case.

      Mr. Lester reported that he has paperwork which identifies the
      charges and other information related to his case. Memory aids
      such as this is highly recommended; however there is a lack of data
      to suggest that his memory is so impaired that he cannot assist
      defense counsel. The jail records do not indicate any significant
      memory or cognitive impairment. Indeed, Mr. Lester was able to
      recall and relate information that he had discussed with his attorney
      to jail staff, specifically his plea options.

      Mr. Lester is capable of reasonably assessing his legal options and
      his decision-making abilities are intact. His behavior was well-
      controlled during the interview, suggesting the ability to work with
      defense counsel and his ability to manifest appropriate courtroom
      behavior. Mr. Lester expressed some concerns about his attorney;
      however they were not delusional or irrational. He understands that
      defense counsel is supposed to help him and he reported that he
      does trust his attorney's judgment. Mr. Lester is further capable of
      participating in planning a defense strategy and to make reasoned
      choices during courtroom proceedings. Therefore, it is my opinion
No. 70124-0-1/4


       that Mr. Lester has the capacity to understand the nature of the
       proceedings against him and the capacity to assist in his defense.

       Dr. Johnson testified that low scores on Dr. Neer's neuropsychological

tests "doesn't necessarily mean that it's interfering with his functional capabilities

to—to be able to assist his attorney or to understand the court process." She

opined that Lester "demonstrates the requisite abilities to be able to understand

the court process, to reasonably and rationally think about that and to assist his

attorney."

       The court also considered testimony from Nykia Johnson, a release

planner at the King County Correctional Facility.      Johnson met with Lester in

March 2012 to discuss release planning services.             She testified that she

contacted Lester's public defender social worker after this meeting to express her

concerns that Lester seemed disoriented and reported difficulty performing his

adult daily living skills.

       Additionally, the court considered testimony from King County Correctional

Officers Kenneth Morano and Vincent Johnston.          Officer Morano testified that

when he had contact with Lester in jail, Lester never appeared disoriented and

had no difficulty following directions or communicating. Officer Johnston testified

that Lester demonstrated no confusion, disorientation, or memory problems, and

was able to follow instructions.
No. 70124-0-1/5




       Following a hearing, the court found Lester competent to stand trial. A

jury found Lester guilty of assault in the first degree.1

       Lester appeals.

                                       Analysis

       Lester claims that he "was unable to assist his attorney in his defense

because of his mental deficiencies." Both the due process clause of the United

States Constitution and RCW 10.77.050 prohibit trying an incompetent criminal

defendant.2     "In Washington, a defendant is competent to stand trial if he

understands the nature of the charges and is capable of assisting in his own

defense."3

       Washington courts generally presume that a defendant is competent to

stand trial and to assist in his own defense.4 Based upon this presumption of

competency, the defendant bears the burden of proving that he is incompetent to

stand trial.5     In determining competence, the trial court considers the

"'defendant's appearance, demeanor, conduct, personal and family history, past




      1 The case proceeded to trial on charges of murder in the second degree,
assault in the first degree, and assault in the second degree. The jury found
Lester not guilty of murder in the second degree and guilty of assault in the
second degree. The court dismissed and vacated the conviction for assault in
the second degree due to double jeopardy.
       2 State v. Lewis, 141 Wn. App. 367, 381, 166 P.3d 786 (2007) (citing Pate
v. Robinson. 383 U.S. 375, 386, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); In re
Pers. Restraint of Fleming. 142 Wn.2d 853, 861, 16 P.3d 610 (2001)).
       3 Lewis, 141 Wn. App. at 381.
       4 State v. Colev. 171 Wn. App. 177, 179, 286 P.3d 712 (2012), review
granted. 176 Wn.2d 1024 (2013).
      5 Colev, 171 Wn. App. at 179.
No. 70124-0-1/6




behavior, medical and psychiatric reports and the statements of counsel.'"6 We

will not reverse a trial court's competency determination absent a manifest abuse

of discretion.7 "'A trial court abuses its discretion when its order is manifestly

unreasonable or based on untenable grounds' and it 'necessarily abuses its

discretion if it applies the incorrect legal standard.'"8

       Here, the trial court found "by a preponderance of the evidence that the

defendant understands the nature of the proceedings against him and is able to

effectively assist counsel in the defense of his case." Based upon this finding,

the court concluded "by a preponderance of the evidence that the defendant is

competent to stand trial."

        Lester argues that Dr. Neer's report and testimony are more credible than

Dr. Johnson's. "'Credibility determinations are for the trier of fact and are not

subject to appellate review. We must defer to the [trier of fact] on issues of

conflicting testimony, credibility of witnesses, and persuasiveness of the

evidence.'"9 The trial court had broad discretion to weigh the witnesses' reports

and testimony about Lester's competency. Although Lester did not testify at trial,



       6 Fleming, 142 Wn.2d at 863 (quoting State v. Dodd, 70 Wn.2d 513, 514,
424 P.2d 302 (1967)).
       7 Lewis, 141 Wn. App. at 381 (citing State v. Crenshaw, 27 Wn. App. 326,
330, 617 P.2d 1041 (1980)).
      8 Kreidlerv. Cascade Nat. Ins. Co., No. 71063-0-1, 2014 WL 943108, at *7
(Wash. Ct. App. Mar. 10, 2014) (quoting Gillett v. Conner. 132 Wn. App. 818,
822, 133 P.3d 960 (2006)).
       9 State v. Mashek, 177 Wn. App. 749, 756, 312 P.3d 774 (2013)
(alteration in original) (quoting State v. Liden, 138 Wn. App. 110, 117, 156 P.3d
259 (2007)).
No. 70124-0-1/7




the court had the opportunity to observe his appearance, demeanor, and conduct

in the courtroom.


        The record indicates no irrational behavior.     Lester does not show how

any noted cognitive impairments prevented him from understanding the nature of

the proceedings or effectively assisting his attorney. Lester fails to show that the

trial court abused its discretion when it determined that he was competent to

stand trial.


                                     Conclusion


        Because Lester fails to show that the trial court abused its discretion when

it found him competent to stand trial, we affirm.




                                                       ?A^g>^n,
WE CONCUR:




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