  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


STATE OF WASHINGTON,                                                             r-o
                                                       No. 72812-1-1
                                                                                 en
                        Respondent,                                              C_

                                                       DIVISION ONE
   v.                                                                             CO



FREDERICK J. WILLIAMS,                                 UNPUBLISHED OPINION g

                        Appellant.                     FILED: June 13, 2016       «


          Appelwick, J. — A jury found Williams guilty of multiple counts of rape of a
child and child molestation, committed against his two nieces. He contends that the

trial court erred in granting his request to represent himself for a brief period at the
beginning of trial. He also argues that the trial court erred in refusing to sever the
charges against each niece for trial, in denying his request to participate in an in
camera review of school records, and in sentencing him as a persistent offender. We

affirm.

                                          FACTS


          In 2009, the State charged Frederick Williams, a registered sex offender, with
committing multiple counts of rape of a child and child molestation against his nieces
M.W. and E.W. The charging period for the counts involving E.W. was 1999 to 2003;
No. 72812-1-1/2


the charging period for the counts involving M.W. was 2006 to 2008. The charges

arose after M.W. disclosed the abuse to a friend.


       The State's evidence established that Williams began abusing E.W. when she

was eight or nine years old. Most of the abuse occurred in Williams's trailer, which

was located near the girls' home. When E.W. wanted money or some other favor,

Williams required her to "earn" it, sometimes by "flashing," Le., lifting her shirt and

exposing her breasts.

       Williams used a Polaroid camera to take photographs of E.W.                On one

occasion, he removed E.W.'s clothes from below her waist, had her lie down and

open her legs, and then photographed between her legs. During the photo session,

Williams "cup[ped]" his hand around E.W.'s vagina and touched her breasts.

Williams told E.W. that he was an artist and wanted to draw her vagina.

       Williams touched and sucked on E.W.'s breasts on multiple occasions.             He

also repeatedly cupped his hand around her vagina while inserting his finger into her

vagina.

       Williams began abusing M.W., E.W.'s younger sister, while M.W. was in

middle school. When M.W. was 11 or 12, Williams offered to obtain a movie for her

from Netflix, but required her to go to his trailer. At the trailer, Williams began kissing

M.W. He then removed her shirt and bra and started kissing her breasts. Williams

eventually removed all of M.W.'s clothing, put his finger into her vagina, and "moved

it around." Williams then unsuccessfully attempted to insert his penis into M.W.'s

vagina. After putting on his pants, Williams licked M.W.'s vagina. At some point,
No. 72812-1-1/3


Williams used a surveillance camera connected to his computer to show M.W. what

her vagina looked like. Williams told M.W. that the camera was not recording.

       On another occasion, Williams went into the bathroom at M.W.'s house to help

her give the dog a bath. Williams closed the door, removed M.W.'s top, and started

touching her breasts. Williams gave M.W. $5 for washing the dog. Williams removed

M.W.'s top and touched her breasts on several other occasions.

       Williams told both girls not to tell anyone about the abuse.

       Following a trial in 2011, the jury found Williams guilty of 10 counts of rape of a

child and child molestation. The court found that Williams was a persistent offender

under the Persistent Offender Accountability Act (POAA), chapter 9.94A RCW, and

imposed a sentence of life without parole. On appeal, this court reversed, concluding

that the trial court erred in admitting Williams's 1991 child rape conviction under RCW

10.58.090. State v. Williams, noted at 172 Wn. App. 1027, 2012 WL 6554786, at *1;

see also State v. Gresham. 173 Wn.2d 405, 413-14, 269 P.3d 207 (2012).

      The State retried Williams in October 2014. Prior to trial, Williams expressed

dissatisfaction with his appointed attorney, who had represented him in the first trial,

and asked to represent himself.      Following an extensive colloquy, the trial court

granted Williams's request and appointed Williams's current attorney to serve as

standby counsel.

      Shortly after trial began, Williams informed the trial court that he had a severe

headache and a neck injury and asked for a continuance.           On the following day,

Williams agreed that standby counsel should resume full representation. At trial, the
No. 72812-1-1/4


defense called a forensic psychologist, who testified that the law enforcement

interviews of E.W. and M.W. were improperly suggestive and could have "potentially
contaminated" the girls' memories.

          The jury found Williams guilty as charged. The trial court again found that he

was a persistent offender and sentenced him to a term of life without the possibility of
parole.

                                      DISCUSSION

  I.      Self-Representation

       Williams contends that his request to represent himself was merely an attempt
to obtain the appointment of new counsel and was therefore not unequivocal. He

also maintains that the trial court's willingness to provide standby counsel precluded

a knowing, intelligent, and voluntary waiver of his right to counsel. Viewed in context,
the record fails to support these contentions.

       The State and federal constitutions guarantee a criminal defendant both a

right to counsel and the right to self-representation. State v. Madsen. 168 Wn.2d

496, 503, 229 P.3d 714 (2010).        But, the right to self-representation is not self-

executing. State v. Modica. 136 Wn. App. 434, 441, 149 P.3d 446 (2006), aff'd bv.

164 Wn.2d 83, 186 P.3d 1062 (2008). "A criminal defendant who desires to waive

the right to counsel and proceed pro se must make an affirmative demand, and the

demand must be unequivocal in the context of the record as a whole." Id. A court

must indulge in " 'every reasonable presumption' " against a defendant's waiver of

the right to counsel. In re Pet, of Turav. 139 Wn.2d 379, 396, 986 P.2d 790 (1999)
No. 72812-1-1/5


(quoting Brewer v. Williams. 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed.2d 424

(1977)).     We review the trial court's decision to grant the defendant's motion to

proceed pro se for an abuse of discretion. Modica, 136 Wn. App. at 442.

       The record establishes that Williams's decision to represent himself was not

undertaken hastily.    Williams first raised the issue of representing himself during

pretrial motions on January 23, 2014. He informed the court that he was not satisfied

with Thomas Fryer, his current attorney and the attorney who represented him during

the first trial. Williams explained that "the whole idea of doing this is to try to mostly

get counsel other than Fryer" and that he really wanted a specific private attorney,

Andrew Subin, to substitute for Fryer. Williams assumed that the court could simply

replace Fryer with Subin.

       At a hearing on January 27, Williams suggested that because he had filed a

complaint about Fryer with the Washington State Bar Association, Fryer had a

"conflict of interest" and needed to be replaced, preferably with Subin. The trial court

informed Williams that he could not create a conflict of interest merely by filing a

complaint.     The court also explained that if Fryer were to withdraw, the public

defender's office, not the court, would choose new counsel. When the court asked if

he wanted to represent himself, Williams replied:

       Partly and partly not. To be honest, to be completely honest, Your
       Honor, I was hoping that, urn, if, you know, you get Subin in in some
       way, the same way that I got Mr. Fryer, I didn't realize that the court
       can't do that but I mean. I know my case, but I am not -
No. 72812-1-1/6


The court concluded that Williams had not identified any basis for appointing new

counsel and that his request to represent himself was not unequivocal, a decision

that Williams does not challenge on appeal.

         On October 9, 2014, shortly before the second trial began, Williams informed

the trial court that "I would like to go pro se with standby counsel."               The court

immediately told Williams that in Washington, "there is no right to standby counsel."

Noting that the appointment of standby counsel is encouraged, however, the court

ascertained that Fryer was willing to act as standby counsel.                 The court then

explained that the role of standby counsel was limited to providing assistance, but

that     standby   counsel    could,   under    certain   circumstances,     "take   over full

representation" at the defendant's request.

         During a detailed colloquy with Williams about the requirements for proceeding

pro se, the court repeatedly advised Williams, who was facing a persistent offender

sentence, that self-representation was a bad idea and that Fryer was an experienced

and skilled attorney.      When asked why he wanted to represent himself, Williams

explained:

         Because I know my case, ... I don't feel that Tom was representing me
         in the way that is beneficiary [sic] to me. I . . . feel that I can especially,
         with the dynamics of my case, defend myself properly.

After acknowledging that no one had threatened him or promised anything to

persuade him to represent himself, Williams again stressed his dissatisfaction with

Fryer:

         If you deny me pro se, I want another lawyer. I do not want Tom as my
         lawyer.
No. 72812-1-1/7


The court then summarized:

             THE COURT: In light of the penalty that you might suffer if you
      were found guilty, and, you know, the State has to prove you guilty
      beyond a reasonable doubt, there is no question about that, but in light
      of the penalty you might suffer ifyou are found guilty and in light of all of
      the difficulties you will be facing representing yourself, is it still your
      desire to represent yourself and give up your right to be fully
      represented by Mr. Fryer?

             THE DEFENDANT: If I have standby counsel, I think I can do it,
      Your Honor.

             THE COURT: Is this decision you made entirely voluntarily?

             THE DEFENDANT: Yes, sir.

The court interrupted the colloquy to address several scheduling issues, including a

delay in the beginning of Williams's self-representation, to permit Fryer to argue

certain motions. The court then found that Williams had knowingly, intelligently, and

voluntarily waived his right to counsel and permitted him to represent himself with

Fryer as standby counsel.

      Williams contends that his request to represent himself was not unequivocal

because he was merely seeking the appointment of another attorney. The record

shows, however, that by the end of the January 2014 pretrial hearings, Williams

understood the trial court could not simply replace Fryer with his preferred private

attorney. Williams also expressed a reluctance to use the random procedure for the

appointment of a new attorney.
No. 72812-1-1/8


       During the October 9 hearing, in the face of the trial court's extensive efforts to

dissuade him, Williams repeatedly and affirmatively expressed his desire to represent

himself. Although Williams requested the appointment of standby counsel, the trial

court immediately informed him that he had no right to standby counsel. Williams

never demanded or insisted that the trial court appoint standby counsel. See State v.

Mehrabian, 175 Wn. App. 678, 691-92, 308 P.3d 660 (2013) (defendant's request to

proceed pro se with standby counsel was not equivocal where trial court informed

defendant he had no right to standby counsel and defendant did not demand or insist

on the appointment of standby counsel).       Nor did Williams's repeatedly expressed

dissatisfaction with Fryer render his request equivocal:

      [W]hen a defendant makes a clear and knowing request to proceed pro
      se, such a request is not rendered equivocal by the fact that the
      defendant is motivated by something other than a singular desire to
      conduct his or her own defense.

Modica, 136 Wn. App. at 442; see also State v. DeWeese, 117 Wn.2d 369, 376, 816

P.2d 1 (1991) (when indigent defendant fails to provide court with legitimate reasons

for substitute counsel, court may require defendant to either continue with current

counsel or proceed pro se).

      When viewed in the context of the entire record, Williams's request to

represent himself was unequivocal.

      Williams's contention that the trial court's immediate willingness to appoint

standby counsel rendered his waiver involuntary is also unpersuasive.               After

informing Williams that he had no right to standby counsel, the trial court explained

that standby counsel was "not a glorified messenger" and "not [there] simply to do


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No. 72812-1-1/9


everything that you want." During the following colloquy, Williams acknowledged that

he had never studied law, that he had never represented himself before, that he was

charged with multiple counts of child rape and child molestation, and that he was

facing a two-strike persistent offender sentence. Williams also conceded that he was

not familiar with the rules of evidence or criminal procedure or the procedure for jury

selection. The court informed Williams that these rules would govern the trial and

that even though he might have standby counsel:

       [Y]ou are on your own and the court will not tell you how to try your
       case or advise you how to proceed, you are held to the same standards
       as a practicing licensed attorney.

Throughout the colloquy, the trial court repeatedly advised Williams of the

disadvantages of proceeding pro se, even with standby counsel, and urged him not

to represent himself.

       In order to demonstrate a valid waiver of the right to counsel, the record must

show the defendant understood "the dangers and disadvantages of self-

representation" and establish "his choice is made with eyes open."             Faretta v.

California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The record of

the October 9 hearing, including the trial court's detailed explanation of the

procedural requirements of self-representation, the dangers of proceeding pro se, the

limits of standby counsel, and the fact that Williams was in charge of his own

defense, establishes that Williams was well aware of the risks and disadvantages of

self-representation. The trial court did not abuse its discretion in finding that Williams

knowingly, intelligently, and voluntarily waived his right to counsel and allowing him to
No. 72812-1-1/10


represent himself. See State v. Sinclair, 46 Wn. App. 433, 438, 730 P.2d 742 (1986)

("when the trial court has correctly ruled that substitute counsel will not be appointed

and the defendant insists that in the absence of substitute counsel he be permitted to

defend pro se, his request must be deemed unequivocal").1

  II.      Motion to Sever


           Williams contends that the trial court abused its discretion in denying his

motion to sever the counts involving E.W. and M.W. In Williams's motion to sever,

defense counsel maintained that a single trial would be unfairly prejudicial because

the jury would likely "accumulate" the evidence.         Counsel also argued that the

evidence would not be cross-admissible under ER 404(b). The State maintained that

the evidence of each count was strong and the counts were easily

compartmentalized, that the jury would be instructed to consider each count

separately, and that much of the evidence was cross-admissible. The court denied

the motion to sever, stating that it was "adopting the State's analysis as set forth in its
response."

          Offenses properly joined under CrR 4.3.1(a) may be severed if "the court

determines that severance will promote a fair determination of the defendant's guilt or

innocence."       CrR 4.4(b).    Defendants seeking severance have the burden of

demonstrating that a trial involving all counts "would be so manifestly prejudicial as to

outweigh the concern for judicial economy." State v. Bvthrow, 114 Wn.2d 713, 718,


        1 Because the trial court did not abuse its discretion in permitting Williams to
represent himself, we need not address the State's contention that the invited error
precludes Williams's challenge to the validity of his waiver of counsel.

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No. 72812-1-1/11


790 P.2d 154 (1990). In determining whether the potential for prejudice requires
severance, the court must consider

       (1) the strength of the State's evidence on each count; (2) the clarity of
       defenses as to each count; (3) court instructions to the jury to consider
       each count separately; and (4) the admissibility of evidence of the other
       charges even if not joined for trial.

State v. Russell. 125 Wn.2d 24, 63, 882 P.2d 747 (1994). We will reverse the trial

court's failure to sever counts only for a manifest abuse of discretion. Bvthrow, 114

Wn.2dat717.


       Contrary to Williams's suggestions, the evidence of each count was relatively
strong. Both girls generally described distinct incidents that the jury could readily
distinguish. Williams's defenses to all charges were similar and not contradictory.
Williams relied primarily on a general denial, arguing that both girls' accounts were

unreliable and tainted by improper investigative techniques.      In addition, the trial

court instructed the jury to consider each count separately.

      On appeal, Williams's primary contention is that denial of the severance

motion was an abuse of discretion because the trial court failed to make a ruling on

the record that the evidence would be cross-admissible under ER 404(b). Under ER

404(b), evidence of prior misconduct is not admissible "to show that it is likely the

defendant committed the alleged crime, acted in conformity with the prior bad acts

when committing the crime, or had a propensity to commit the crime." State v.

Wilson. 144 Wn. App. 166, 175, 181 P.3d 887 (2008). Such evidence may, however,

be admissible for other purposes, such as demonstrating a common scheme or plan.

See State v. Lough, 125 Wn.2d 847, 8524-55, 889 P.2d 487 (1995).


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No. 72812-1-1/12


       Before admitting evidence of prior misconduct under ER 404(b), the trial court

must (1) find by a preponderance of the evidence that the misconduct occurred; (2)

identify the purpose for admitting the evidence; (3) determine the relevance of the

evidence to prove an element of the charged crime; and (4) weigh the probative

value against its prejudicial effect. Gresham. 173 Wn.2d at 421. We review the trial

court's decision to admit or exclude evidence under ER 404(b) for an abuse of

discretion. State v. Fisher, 165 Wn.2d 727, 745, 202 P.3d 937 (2009).

       Williams correctly contends that the trial court failed to carry out its ER 404(b)

analysis on the record. See State v. Carleton. 82 Wn. App. 680, 685, 919 P.2d 128

(1996) (trial court's balancing of the prejudicial nature of ER 404(b) evidence must

take place on the record).     Rather, the court merely adopted the State's written

argument opposing severance, which maintained that the evidence involving E.W.

and M.W. was cross-admissible. But, the trial court's failure to undertake ER 404(b)

balancing on the record is harmless "if the record is sufficient for the reviewing court

to determine that the trial court, if it had considered the relative weight of probative

value and prejudice, would still have admitted the evidence." |o\ at 686.

       In order to constitute a common scheme or plan, the evidence of the prior

misconduct and the charged crime " 'must demonstrate not merely similarity in

results, but such occurrence of common features that the various acts are naturally to

be explained as caused by a general plan of which the charged crime and the prior

misconduct are the individual manifestations.'" State v. DeVincentis, 150 Wn.2d 11,

19, 74 P.3d 119 (2003) (quoting Lough, 125 Wn.2d at 860). Evidence admitted to



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 No. 72812-1-1/13


show a common scheme or plan need not be "distinct from common means of

committing the charged crime." Gresham, 173 Wn.2d at 423.

        Williams exploited his position as a family member and the close proximity of
his trailer to begin abusing both E.W. and M.W. He told both girls not to tell anyone
about the abuse. Williams also used the promise ofgifts or favors to isolate and gain
private access to the girls, where he removed their clothing, fondled and kissed their

breasts, and digitally penetrated their vaginas. In separate incidents, Williams used a
camera to record or view both girls' vaginas.

        Despite some differences, the similarities here were sufficient to support a
reasonable determination that the charged incidents were "individual manifestations"

of the same plan. Gresham. 173 Wn.2d at 423. When the defense is a general
denial and credibility a crucial issue, the trial court can reasonably determine that the

probative value of evidence of other sex offenses outweighs the potential prejudice.
State v. Sexsmith. 138 Wn. App. 497, 506, 157 P.3d 901 (2007).

       Moreover, at the time it ruled on the motion to sever, the trial court was

thoroughly familiar with the facts of the case and E.W. and M.W.'s testimony, having
presided at Williams's first trial. Under the circumstances, including the substantial

evidence of a common scheme or plan and the court's expressed reliance on the

State's written arguments, we are confident that the court would have reached the

same decision had it conducted the ER 404(b) balancing analysis on the record. The

trial court did not abuse its discretion in refusing to sever the counts for trial.




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No. 72812-1-1/14


 III.   In Camera Review

        Williams contends the trial court erred when it denied defense counsel's

request to be present and participate in an in camera review of E.W. and M.W.'s

school records. He argues that the court's ruling violated his constitutional right to

due process.

        Prior to trial, Williams moved for a subpoena duces tecum of E.W. and M.W.'s

school records.      Williams alleged that school officials were present when law

enforcement personnel contacted the girls and that school documents pertaining to

those contacts likely contained exculpatory evidence about E.W. and M.W.'s

credibility.   The trial court granted the subpoena duces tecum, subject to the jn

camera review of the records for discoverable materials.

        After the school released the records to the court, counsel for Williams moved

for leave to be present and participate in the in camera review. At a hearing on May

6, 2014, the court reported that it had already reviewed all of the documents and

found nothing discoverable or helpful to the defense. After describing the materials

in detail, the court offered to review them again, but denied defense counsel's

request to be present.

        On appeal, Williams first contends that the State lacked standing to object to

his request for the school records and failed to adequately demonstrate that any

particular privilege applied to the school records. He argues that he was therefore

entitled to full discovery.




                                          -14-
No. 72812-1-1/15


          But, Williams fails to provide any references to the record indicating that he

raised these issues in the trial court. Nor does he identify the legal arguments that he

presented to the trial court or the trial court's rulings on those arguments. We

therefore decline to address these contentions for the first time on appeal. See RAP

2.5(a); State v. Russell, 171 Wn.2d 118, 122, 249 P.3d 604 (2011).

          Williams also contends the trial court violated his right to due process when it

denied his request to be present during the in camera review. The record indicates

that Williams did not object to the trial court's decision to review the records jn

camera.      We review the trial court's decision to conduct in camera review for an

abuse of discretion. See State v. Diemel, 81 Wn. App. 464, 467, 914 P.2d 779

(1996).

          Williams's argument in the trial court rested primarily on Zaal v. State, 326 Md.

54, 602 A.2d 1247 (1992). But, ZaaJ does not require the trial court to permit counsel

to be present during the in camera review of school records. Rather, Zaal held that

the trial court "may elect to review the records alone, to conduct the review in the

presence of counsel, or to permit review by counsel alone." jd. at 87.

          Here, after reviewing the records, the trial court informed the parties in some

detail about the nature of the documents. Among other things, the trial court stated

that the documents involved evaluations of hearing, vision, phonics, math skills,

writing    skills,   interests, and various standardized assessment forms.            After

summarizing the materials, the court offered to review them again, but explained

          I saw nothing that I thought was discoverable that would be helpful to
          defense in the presentation of their case, nor did I see anything that I

                                              -15-
No. 72812-1-1/16

       thought would lead to anything that would be discoverable or helpful. I
       didn't see anything that related to anything other than educational
       assessments and there was a strong focus on speech, phonics and
       articulation. And that was about it.

The trial court then agreed with defense counsel's assessment that "it sounds like we

have, in essence, generic school records" and that "[t]here was a series of events

that took place in the school that looked as if school personnel was present and if the

court saw anything it would have jumped right out."

       Given the trial court's detailed summary of the materials it reviewed and

defense counsel's acknowledgement of the nature of the materials, Williams fails to

demonstrate that the trial court abused its discretion in denying Williams's request to

be present during the in camera review.

IV.    Persistent Offender Sentence


      Williams contends that the imposition of a sentence under the POAA based on

the trial court's finding of a prior qualifying conviction violated his due process and

jury trial rights. He contends that the State had to prove prior strike offenses beyond

a reasonable doubt to a jury before the court could sentence him as a persistent

offender.


       Our Supreme Court has repeatedly rejected essentially identical arguments.

See, e.g., State v. Witherspoon, 180 Wn.2d 875, 893, 329 P.3d 888 (2014). These

decisions are binding on us. See State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227

(1984).




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No. 72812-1-1/17


 V.   Statement of Additional Grounds for Review

       In his statement of additional grounds for review, Williams appears to

challenge the testimony of his brother, who died between the first and second trial.

Portions of the brother's testimony were read into the record at the second trial.

Although a statement of additional grounds for review need not include references to

the record or citations to authority, this court will not consider the defendant's

allegations unless they "inform the court of the nature and occurrence of alleged

errors." RAP 10.10(c). Williams's allegations regarding the challenged testimony are

too conclusory to permit appellate review.

      Williams also appears to contend that the trial court erroneously excluded the

exculpatory testimony of a witness. But, Williams's arguments rest on allegations

that are outside the record and therefore cannot be considered on direct appeal. See

State v. McFarland. 127 Wn.2d 322, 337-38, 899 P.2d 1251 (1995).

      Affirmed.




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