      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 76407-1-I
                      Respondent,
        v.                                       DIVISION ONE                         1%.3
                                                                                                    o
                                                                                      c_.
 TAN VAN VO,                                      UNPUBLISHED OPINION
                                                                                      •       -ip   -n

                      Appellant.                 FILED: June 4, 2018                 .    -




      LEACH, J. — Tan Van Vo appeals his convictions for assault in the secoo8 "'
                                                                              co
degree, burglary in the first degree, and misdemeanor harassment. Vo claims that

the trial court violated his constitutional right of self-representation when it denied

his request to proceed pro se. Because Vo vacillated between self-representation

and the desire to change attorneys, the trial court did not abuse its discretion when

denying the request. We affirm.

                                   BACKGROUND

       On the day of trial, Vo's attorney announced, "Mr. Vo is requesting to

discharge counsel, and—or proceed pro se." Vo explained that during the seven

months before trial his lawyer did not meet with him or help him understand his

case. But when directly asked, Vo admitted his attorney did meet with him. His

attorney told the court that the discovery had been translated to Vietnamese for

Vo. The trial court found no legal basis to discharge his attorney and told Vo that
No. 76407-1-I /2


he would not get to choose another lawyer on the first day of his trial. The

exchange between the judge and Vo continued:

             THE COURT: So, the next question is: do you want to
      represent yourself?
            The case will not be continued; you will go downstairs
      immediately to start trial without the benefit of counsel.
            You will be held to the same legal standard as a licensed,
      practicing attorney in the State of Washington.

            INTERPRETER:         Your Honor, can you repeat the last
      statement?                                        •

             THE COURT: You will be required to represent yourself like
      a licensed, practicing attorney in the State of Washington.

            INTERPRETER: [Speaks Vietnamese.]

            THE COURT: Do you want to represent yourself?

            INTERPRETER: [Speaks Vietnamese.]

             MR. VO: [Speaks Vietnamese.]

             INTERPRETER: I want to represent myself. I don't know
      anything, but I want to represent myself. Between my lawyer and I,
      there is not—I don't know what else to say.

             THE COURT: Okay. Other than the fact that you're claiming
      that he hasn't gone over the police reports with you in Vietnamese,
      or with an interpreter, is there any other reason why you want to fire
      him?

             INTEPRETER: [Speaks Vietnamese.]

             MR. VO: [Speaks Vietnamese.]

            INTEPRETER: On the days that I go to trial, I told my lawyer
      to bring—

              THE COURT: Mr. Vo, try to stay focused. You're going to
      trial today; either with an attorney, Mr. Sorenson or by yourself.
              Which do you want to do? You're not going to get a different
      lawyer.


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No. 76407-1-1/ 3

              So, it's time to make a decision. We have a trial judge ready
      to start your case today.

             MR. VO: [Speaks Vietnamese.]

              INTERPRETER: Please [inaudible] I do not know. I just want
      to try by myself.

             THE COURT: No, it's not a question of trying; once you do it,
      the doors closed. You're on your own.
             You don't get to bring him back, you don't get standby
      counsel; you're all by yourself. You're held to the same standard as
      a practicing attorney.
             Do you know anything about the law?

             MR. VO: [Speaks Vietnamese.]

             INTERPRETER: I just need to go to court to change a lawyer,
      or 1 can—I do not feel that my lawyers have been helping me at all.

             THE COURT: I'm not hearing a basis; it sounds like Mr.
      Sorenson has used the benefit of an interpreter to go over the police
      reports and explain to you what you're facing.
             You don't get to change lawyers on the day of your trial.
             So, I'm not hearing anything about going pro se.
             So the motion is denied; you're going to go to trial.

             INTEPRETER: [Speaks Vietnamese.]

              MR. VO: [Speaks Vietnamese.]

             THE COURT: You can report to your trial judge now.
             We're all done.
      After trial, Vo was convicted of assault in the second degree, burglary in the

first degree, and misdemeanor harassment. Vo appeals.

                                    ANALYSIS

      The Washington Constitution and the federal constitution provide criminal

defendants the right of self-representation.1 But this right is not absolute or self-

       1 WASH. CONST. art. I, § 22; Faretta v. California, 422 U.S. 806, 819-20, 95
S. Ct. 2525,45 L. Ed. 2d 562(1975).

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No. 76407-1-1/4


executing.2 The trial court must first determine whether a defendant's request is

unequivocal and timely.3 If a defendant makes a timely and unequivocal request

for self-representation, then the trial court must determine whether the request is

voluntary, knowing, and intelligent?' The court *must indulge in 'every reasonable

presumption against a defendant's waiver of his or her right to counsel.'"5

       This court reviews a trial court's decision on a self-representation request

for an abuse of discretion.6 Because the analysis of a defendant's waiver of

counsel is fact specific, the trial court is in the best position to make the

determination! Therefore, an appellate court will reverse the trial court's decision

only if it is "'manifestly unreasonable,' relies on unsupported facts, or applies an

incorrect legal standard."9

       Vo contends the trial court abused its discretion when it decided his request

to proceed pro se was equivocal. A request to self-represent must be unequivocal

to protect the defendantfrom making an impulsive waiver of counsel and to protect

trial courts from manipulative vacillations by defendants about representation.9

"While a request to proceed pro se as an alternative to substitution of new counsel


       2 State v. Woods, 143 Wn.2d 561, 586,23 P.3d 1046(2001).
       3 State v. Madsen, 168 Wn.2d 496, 504,229 P.3d 714(2010).
       4 Madsen, 168 Wn.2d at 504.
       5 Madsen, 168 Wn.2d at 504 (internal quotation marks omitted)(quoting In
re Det. of Turav, 139 Wn.2d 379, 396, 986 P.2d 790(1999)).
       6 State v. Coley, 180 Wn.2d 543, 559, 326 P.3d 702(2014).
       7 Coley, 180 Wn.2d at 559 (citing State v. Hahn, 106 Wn.2d 885, 900-01,
726 P.2d 25(1986)).
       8 Coley, 180 Wn.2d at 559 (internal quotation marks omitted) (quoting
Madsen, 168 Wn.2d at 504).
       9 State v. Stenson, 132 Wn.2d 668, 740, 940 P.2d 1239(1997).



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No. 76407-1-1/ 5


does not necessarily make the request equivocal, such a request may be an

indication to the trial court, in light of the whole record, that the request is not

unequivocal."10

       Vo unsuccessfully tries to distinguish his case from State v. Stenson.11

There, Stenson filed a written request for new counse1,12 which the trial court

denied. Stenson then asked to represent himself.13 The trial court also denied

this request and found that Stenson "'really [did] not want to proceed without

counsel.'"14 Similarly, here, the trial court denied Vo's request for new counsel,

after which he asked to proceed pro se. After further discussion between the trial

judge and Vo, Vo renewed his request for new counsel. The judge responded,

"So, I'm not hearing anything about going pro se." As in Stenson, Vo did not

counter the trial court's conclusion that his request was ambivalent. Because the

record shows Vo equivocated about his request for self-representation, we affirm

the trial court's decision.




       1° Stenson, 132 Wn.2d at 740.(citation omitted).
       "132 Wn.2d 668,940 P.2d 1239(1997).
       12 Stenson, 132 Wn.2d at 733.
       13 Stenson, 132 Wn.2d at 739-40.
       14 Stenson, 132 Wn.2d at 742 (alteration in original).



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No. 76407-1-1/6


       Vo also contends that the trial court did not determine that his request to

proceed pro se was untimely.15 But because the trial court denied his motion after

finding his request equivocal, timeliness is not at issue." So we do not reach it.

       Finally, Vo contends that the trial court did not conduct a proper colloquy

and thus we must treat his request as knowing, voluntary, and intelligent. But

because the trial courtfound his request to be equivocal, we do not need to decide

whether the request was knowing, voluntary, and intelligent."

           STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

       In his statement of additional grounds for review, Vo contends that the trial

court violated his due process rights by failing to enter findings of fact and

conclusions of law as required by CrR 6.1(d). But the record shows that the trial

court entered findings of fact and conclusions of law on January 9, 2017. So no

violation of due process occurred.

       Vo also contends that the State did not prove beyond a reasonable doubt

all the elements of burglary in the first degree with a deadly weapon. A defendant

who challenges the sufficiency of the evidence admits the truth of the evidence

and all rational inferences that may be drawn from it." We will reverse a conviction

       15 Vo relies on a Division Two opinion, State v. Paumier, 155 Wn. App.673,
230 P.3d 212 (2010), to show that his request was timely. But this is irrelevant
because the trial court's denial was based on Vo's equivocal request.
       16 Woods, 143 Wn.2d at 586 ("The State does not suggest that Woods's
request was untimely. The focus of our inquiry, therefore, is on whether the claimed
request to proceed pro se was unequivocal.").
       17 E.g., Madsen, 168 Wn.2d at 504("Absent a finding that the request was
equivocal or untimely, the court must then determine if the defendant's request is
voluntary, knowing, and intelligent, usually by colloquy.").
       15 State v. Thomas, 150 Wn.2d 821, 874,83 P.3d 970(2004).



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No. 76407-1-1 / 7


"only where no rational trier of fact could find that all elements of the crime were

proved beyond a reasonable doubt."19

       First, Vo claims that the State did not prove that he used a deadly weapon

as defined in RCW 9A.04.110(6). This statute defines a "deadly weapon" as

       any explosive or loaded or unloaded firearm, and shall include any
       other weapon, device, instrument, article, or substance, including
       "vehicle" as defined in this section, which, under the circumstances
       in which it is used, attempted to be used, or threatened to be used,
       is readily capable of causing death or substantial bodily harm.

This statute describes two categories of deadly weapons:(i)"deadly weapons per

se, namely'any explosive or loaded or unloaded firearm'" and (ii)"deadly weapons

in   fact,   namely 'any     other   weapon, device, instrument, article, or

substance... which, under the circumstances in which it is used, attempted to be

used, or threatened to be used, is readily capable of causing death or substantial

bodily harm.'"20 "[Were possession is insufficient to render 'deadly' a dangerous

weapon other than a firearm or explosive."21 Although Vo concedes that the bat

he carried could cause death or serious bodily injury, he claims that he had the bat

for defensive purposes and did not use it to gain entry into the premises. But Vo's

argument about his intended use of the bat is irrelevant. Because Vo used the bat

to cause substantial bodily harm to the construction supervisor, Vo did more than




               v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559(2005).
        19 State
      20 In re Pers. Restraint of Martinez, 171 Wn.2d 354, 364-65, 256 P.3d 277
(2011)(internal quotation marks omitted) (quoting State v. Taylor, 97 Wn. App.
123, 126, 982 P.2d 687(1999)).
      21 Martinez, 171 Wn.2d at 366.


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No. 76407-1-1 /8


merely possess the bat. Thus, a court could reasonably find that Vo's bat was a

deadly weapon under the "weapons in fact" prong.

       Last, Vo challenges the sufficiency of the evidence supporting his burglary

conviction. Vo testified that a construction worker gave him permission to enter

the premises and gestured for Vo to follow him inside. By contrast,the construction

worker testified that he told Vo to wait outside. Here, the trial court weighed the

conflicting testimony and found the construction worker's testimony more credible.

The court explained that after considering all of the evidence,the State had proved

the elements of burglary in the first degree beyond a reasonable doubt. We "defer

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

the persuasiveness of the evidence."22 Because sufficient evidence supports each

element of Vo's burglary charge, his challenge fails.

                                   CONCLUSION

       The trial court did not abuse its discretion by determining Vo's self-

representation request was equivocal. We affirm.




WE CONCUR:




 S        tiii, li. CC):




       22 Thomas, 150 Wn.2d     at 874-85.

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