    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                      No. 68459-1-1
                     Respondent,
                                                      DIVISION ONE
              \§
              V.

                                                      UNPUBLISHED OPINION
KOREY TAYLOR,

                     Appellant.                       FILED: June 24, 2013      §§ S?
                                                                                     J.* *"j

       Appelwick, J. —Taylor argues that the trial court violated his right to coSiseJSi|
choice when it denied his day-of-trial motion to continue so he could retainaprivaie
counsel. The trial court did not abuse its discretion, because it properly balanced the

defendant's right to counsel of his choice against the public interest in prompt and

efficient administration of justice. We affirm.

                                           FACTS


       Richard Werts owned a house in Edmonds, Washington.            Korey Taylor lived

there with Jennifer Ackaret, Werts's stepdaughter. On October 4, 2010, Werts started

preparing the ground to pour a cement slab in the yard of that house so he could keep a

motor home parked there. Taylor told Werts not to put the slab in that location, because

Taylor was concerned the weight would create a leak in the water line running under the

area. The discussion escalated into an argument that did not become physical. The

argument ended when Werts left the property with his stepson.

       The next day, Werts returned to the property and started working on the project

again while Taylor and Ackaret were away. When Taylor and Ackaret returned home,

Werts was still in the yard holding a rake. He and Taylor began to argue again, the
       No. 68459-1-1/2




argument escalated, and the rake struck Werts and he was left bleeding from his head.1
Ackaret took Werts to Edmonds Hospital, and an ambulance transferred him to

Harborview Medical Center. Detective Shane Hawley and Officer J. Robinson of the

Edmonds Police Department responded to an assault report and spoke with Werts at

Harborview. While returning to Edmonds, they were dispatched to the house where

Werts was injured.       There, the police interviewed Taylor and Ackaret, taking written

statements from them. Ackaret showed the rake to the police, who photographed it and

took it into evidence.


       The State charged Korey Taylor with third degree assault in connection with the

injury. Taylor's trial began January 23, 2012. On the day of trial, the State added a

second degree assault charge and deadly weapons enhancements to both charges.

When the proceedings started, Taylor asked the court to allow him to substitute a

private attorney for his court appointed counsel.        He said family members were

previously unwilling to get involved because the victim was also a family member, but

they agreed the day before trial to help pay for private counsel because of the

seriousness of the charges. Taylor also said that he wanted to be confident going into

trial, but that appointed counsel told him that he was going to lose. After hearing from

Taylor, defense counsel, and the prosecutor, the court refused to delay trial and denied

Taylor's motion.

       A jury found Taylor guilty on both charges and returned special verdicts that he

was armed with a deadly weapon when he committed the crimes. After the verdict, the



1 The witness accounts differ as to how Werts' injury was caused. We discuss those
accounts below in our analysis of Taylor's statement of additional grounds.
       No. 68459-1-1/3



court dismissed the third degree assault conviction and sentenced Taylor on the second

degree assault with a deadly weapon enhancement. Taylor appeals. He also filed a

statement of additional grounds.

                                       DISCUSSION


  I.   Right to Retained Counsel of Choice


       Taylor argues that the trial court violated his constitutional right to retained

counsel of his choice when it denied his request to substitute his appointed counsel with

retained counsel.    He asks that the judgment be reversed, because the trial court

inappropriately focused solely on the competence of counsel and failed to make an

explicit finding that granting the request would cause undue delay.

       We apply the abuse of discretion standard when reviewing a trial court's decision

regarding a defendant's motion to substitute retained counsel. State v. Price, 126 Wn.

App. 617, 632, 109 P.3d 27 (2005). While defendants have a Sixth Amendment right to

choose their retained counsel, it is a qualified right. State v. Roth, 75 Wn. App. 808,

824, 881 P.2d 268 (1994).      When a defendant asserts the right to retain counsel of

choice in such a way that would delay trial, courts must balance the defendant's interest

in exercising this right against the public interest in the prompt and efficient

administration of justice. Id at 824-25. We uphold a trial court's decision on such a

motion unless the decision is an unreasoning and arbitrary insistence on speed and

efficiency in the face of a justifiable request for delay. kL at 824.

       Appellate courts have articulated a host of factors for determining whether a trial

court's decision unjustifiably interferes with the defendant's right to retain counsel of

choice. Ji at 825; 3 Wayne R. LaFave et al., Criminal Procedure § 11.4(c) at 718-720
        No. 68459-1-1/4


(3d ed. 2007). The court's analysis of the following factors supports its decision. First,

Taylor made his request on the morning that trial was set to begin. See State v. Chase,

59 Wn. App. 501, 506-07, 799 P.2d 272 (1990) (requests to retain counsel shortly

before or at trial should generally be denied in the absence of substantial reasons to the

contrary). Second, the trial court determined that Taylor had not yet retained, or even

identified, substitute counsel, and the new attorney would have needed time to prepare

for trial.   See Jd at 507 (no abuse of discretion when trial court denied motion to

continue in order to retain counsel when defendant had not yet retained counsel).

Third, the trial court considered whether Taylor had some legitimate cause for

dissatisfaction with counsel and found none. See Roth, 75 Wn. App. at 825. Fourth,

defense counsel repeatedly indicated that he was prepared to go to trial that day. See

jd Finally, the court's inquiry revealed no indication that the denial of Taylor's motion

would materially or substantially prejudice his case, and Taylor does not claim on

appeal that the court's ruling prejudiced him in any way. See id at 825-26

        Taylor argues that the trial court violated his right to counsel of choice because

"there was no finding that Mr. Taylor's request would result in an unreasonable delay in

the start of trial." The court did not utter the words "undue" or "significant delay."2
However, the record shows quite clearly that the trial court carefully considered several

factors bearing on the significance and length of the delay: Taylor had not identified




2 Taylor cites no authority, and we found none, that would render the court's decision
erroneous because it did not utter those specific words when it nonetheless made a
reasoned decision that was not arbitrary. Failure to cite authority constitutes a
concession that the argument lacks merit. State v. McNeair, 88 Wn. App. 331, 340, 944
P.2d 1099 (1997).
      No. 68459-1-1/5


replacement counsel; a continuance would have pushed the trial past the speedy trial

date; and a continuance would have caused scheduling difficulty for several witnesses.

      Taylor also argues that the trial court improperly relied solely on the effectiveness

of current counsel when ruling on Taylor's motion.       As Taylor correctly points out, a

defendant's right to choose one's retained counsel is independent of the right to

competent counsel. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.

Ct. 2557, 165 L. Ed. 2d 409 (2006). The right to competent counsel comes in part from

the Sixth Amendment's purpose of ensuring a fair trial, jd at 146. In contrast, the right

to select counsel of one's choice is "the root meaning of the constitutional guarantee."

Id at 147-48. The right to counsel of choice "commands, not that a trial be fair, but that

a particular guarantee of fairness be provided—to wit, that the accused be defended by

the counsel he believes to be best." jd at 146. "Where the right to be assisted by

counsel of one's choice is wrongly denied, therefore, it is unnecessary to conduct an

ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation." Id at

148. The trial court would have been wrong if it denied Taylor's request because he

had not shown prejudice within the meaning of Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). However, the trial court did not do this.

The trial court noted that there was no evidence of a failure to cooperate, disregard of

counsel's advice, conflict of interest, or personal antagonism.       But, it also based its

ruling on the fact that no substitute counsel was available and ready to proceed. While

the court considered factors which it might also have considered if it was looking at an

ineffective assistance of counsel question, it did not indicate that a finding of ineffective

assistance of counsel was a prerequisite to granting Taylor's request.
       No. 68459-1-1/6


       The trial court properly balanced Taylor's right to counsel of his choice against

the public interest in prompt and efficient administration of justice.


 II.   Statement of Additional Grounds


       Taylor raises two issues in a statement of additional grounds. The first is the

same issue we discuss above. We need not consider it further. Second, he alleges

"tampering of evidence/conflict of interest."     It is unreviewable under RAP 10.10(c),

because he fails to adequately inform the court of the nature and occurrence of the

alleged errors.

       Taylor argues four other issues in a supplemental statement of additional

grounds.      First, he argues that the State failed to preserve exculpatory evidence.

Second, he claims that the State did not present sufficient evidence to support his

conviction.    Third, he says he received ineffective assistance of counsel.       His final

argument is that the State was not entitled to charge him with both second and third

degree assault. Each of his arguments fails.

       To comport with due process, the prosecution has a duty to disclose material

exculpatory evidence and a corresponding duty to preserve evidence.                State v.

Wittenbarqer. 124 Wn.2d 467, 475, 880 P.2d 517 (1994).             The central inquiry in a

challenge alleging the State failed to preserve evidence is whether the lost evidence

was "'materially exculpatory'" or merely "'potentially useful.'" State v. Burden, 104 Wn.

App. 507, 509, 17 P.3d 1211 (2001).          Evidence is materially exculpatory if (1) its

exculpatory value was apparent before the evidence was lost, and (2) the nature of the

evidence leaves the defendant unable to obtain comparable evidence by other

reasonably available means. Wittenbarqer, 124 Wn.2d at 475.
       No. 68459-1-1/7


      Taylor asserts:

      The police showed up at the crime scene at least two hours after the
      alleged crime had occurred, took statements from the defendant and other
      witnesses. They removed the weapon (rake) without taking notes of the
      rakes location. No photos of the crime scene [were] taken; there [was] no
      form of forensic evidence collected in this criminal case.

He further asserts:


      The defendant truly believes that his case would depend on forensic
      evidence collected at the scene of the crime; location of the rake,
      indentation in the ground [where] the rake made contact, point of [DNA
      (deoxyribonucleic acid)] contact with the rake, finger print evidence of the
      rake, blood splatter on clothing or ground, blood droppings.

He claims that, in sum, the police failed to follow proper procedures. But, because this

issue was not raised below, the facts that he alleges are not fully developed in the

record, and some of them are directly contradicted by the existing record. For instance,

a police officer testified that pictures were taken at the crime scene.     There was no

testimony whatsoever about proper police procedures in this type of case. Issues that

involve facts or evidence not in the record are properly raised through a personal

restraint petition, not a statement of additional grounds. State v. Alvarado, 164 Wn.2d

556, 569, 192 P.3d 345 (2008).

       Moreover, Taylor has failed to show that the type of evidence police officers

allegedly failed to preserve is materially exculpatory. He identifies evidence that could

have possibly assisted his claim that Werts's injuries were caused by falling on the rake.

But, that theory did not arise until trial. At the crime scene, the police had no reason to

suspect that was what happened. Taylor himself told police officers that Werts swung

the rake at him, that Taylor blocked it, and that the rake then bounced back and hit
       No. 68459-1-1/8




Werts in the head. The evidence's exculpatory value, if any, was not apparent at the

time of the initial investigation.

       Taylor next argues that the State never established that he actually possessed

the rake, and that there is thus insufficient evidence to support a conviction for second

degree assault with a deadly weapon. Evidence is sufficient to support a conviction if,

viewed in the light most favorable to the prosecution, it permits any rational trier of fact

to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas,

119 Wn.2d 192, 201, 829 P.2d 1068 (1992).             Circumstantial evidence and direct

evidence are equally reliable. State v. Moles. 130 Wn. App. 461, 465, 123 P.3d 132

(2005). Credibility determinations are within the exclusive province of the jury. See,

e.g.. State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part

on other grounds by Crawford v. Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed.

2d 177 (2004).

       There were essentially three versions of events presented at trial.             First,

witnesses and Taylor himself initially told police that Werts swung the rake at Taylor,

Taylor blocked it, and it rebounded and hit Werts. Second, at trial Taylor and witnesses

testified that Werts swung the rake at Taylor, Taylor blocked it, and then Werts fell and

landed on the rake. Third, Werts testified that, as he approached Taylor with the rake,

Taylor grabbed the rake and eventually established control of it. Werts was pulled

forward, let go, and then was hit with the rake. A doctor testified that Werts's injury

would have required a significant amount of force and would have been unlikely to

result from being struck with a deflected rake blow. Werts's testimony together with the




                                                 8
       No. 68459-1-1/9




doctor's testimony constitutes sufficient evidence for a rational trier of fact to conclude

that Taylor had control of the rake and struck Werts.

      Taylor further argues that he received ineffective assistance of counsel.         To

establish ineffective assistance of counsel, a defendant must prove that the attorney's

performance fell below an objective standard of reasonableness and that the deficiency

prejudiced the defendant. Strickland. 466 U.S. at 687. The reasonableness inquiry

presumes effective representation and requires the defendant to show the absence of a

legitimate strategic or tactical reason for the challenged conduct. State v. McFarland,

127 Wn.2d 322, 336, 899 P.2d 1251 (1995).               Prejudice is present if there is a

reasonable probability that, but for counsel's error, the result would have been different,

jd at 334-35.

      Taylor argues that defense counsel was ineffective for three reasons. The first

reason Taylor asserts is that defense counsel failed to challenge the failure to properly

preserve the crime scene, and failed to conduct an independent investigation. Second,

Taylor argues that defense counsel did not point out to the jury that there was no

evidence such as fingerprints or DNA evidence.          Third, Taylor argues that defense

counsel failed to retain any expert witnesses to counter the State's expert witnesses.

But, the police did not fail to collect or preserve evidence with exculpatory value that

was apparent at the time, so defense counsel was not deficient for failing to raise that

argument.   Taylor does not identify what additional "investigatory evidence" defense

counsel could or should have presented. The decision to not point out the lack of DNA

evidence or fingerprint evidence is a particularly understandable tactical decision. All of

the witnesses, including Taylor, acknowledged that Taylor touched the rake and that
       No. 68459-1-1/10




Werts was injured by it. Finally, we are unable to review his third argument because it

does not identify the nature and occurrence of the alleged error. RAP 10.10(c). He

offers no explanation as to which witnesses' testimony could have been rebutted, or

what aspect of that testimony could have been rebutted. Counsel was not deficient.

      Taylor lastly argues that the State improperly told the jury that it could find Taylor

guilty of either assault in the second degree or assault in the third degree "because they

were essentially the same charge." But, nothing prevents the State from charging a

defendant with lesser included offenses. The trial court laid to rest any double jeopardy

concerns when it dismissed the conviction for assault in the third degree.

      We affirm.




WE CONCUR:




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