                                                                                                               2014 OCT 2i           9: 13
                                                                                                               S TA''     c   WA S     1014




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                                        DIVISION II

STATE OF WASHINGTON,                                                                     Consol. Nos. 44264 -7 -II
                                                                                                          44770 -3 - 1I
                                          Respondent,                                                     45628 -1 - II


          v.




KRIS A. SAEGER,                                                                      UNPUBLISHED OPINION


                                          Appellant.


In re the Personal Restraint Petition of


KRIS A SAEGER,

                                           Petitioner.




       MAXA, J. —             Kris Saeger appeals his conviction after a bench trial of three counts of felony

harassment, and the trial court' s sentence imposing 29 months confinement, a 5 -year no- contact

order with     the    victims, and $ 1,   910 in legal financial         obligations ( LFOs).       We hold that: ( 1) although


the trial court initially failed to enter written findings of fact and conclusions of law after trial, it

remedied       this   error   following    a   ruling from this      court' s commissioner; (          2) the trial court' s no-


contact sentencing condition, which effectively precluded Saeger from living in his residence, was

a valid crime -related prohibition that furthered compelling state interests in protecting Saeger' s

victims   from further         crimes and      did   not violate   his   right   to travel; ( 3)   Saeger did not preserve for


appeal his challenge to the trial court' s finding that he had the ability to pay LFOs; and (4) Saeger' s

challenge      to the    order   imposing      LFOs is   not ripe   for    review.
Consol. Nos. 44264 -7 -II, 44770 -3 -II, 45628 -1 - II



         In two statements of additional grounds ( SAGs) and a personal restraint petition (PRP),

Saeger addresses numerous additional grounds for appeal. We hold that these claims have no

merit.



          We affirm Saeger' s convictions and sentence.


                                                                FACTS


          On September 5, 2012, Salvador Gaspar- Guerrero, his wife, and their daughter were

awoken     by   loud   music.    The music was playing on a stereo outside Saeger' s trailer, which was

adjacent to the Gaspar -Guerreros' property. In addition to the loud music, Gaspar- Guerrero heard

other noises and went outside to investigate.


          Once outside, Gaspar- Guerrero heard Saeger arguing with Jose Casterina. Casterina lives

in   a recreational vehicle on         Gaspar -Guerrero'            s    property.        Gaspar- Guerrero heard Saeger say to

Casterina, " I' ll blow        you   all   up."        Report       of   Proceedings ( RP)            at   22.    As Gaspar -Guerrero


approached      Saeger, Saeger told Gaspar -Guerrrero, " I' ll blow                           you all      up."    RP   at   22.   Gaspar -


Guerrero then told Saeger that he had called law enforcement and that they were on their way, to

which    Saeger   responded, "       I' ll blow them up too."                  RP   at   22. Gaspar- Guerrero interpreted " blow


you all   up"    as a   threat to    shoot   them.        RP    at       22.    Gaspar- Guerrero' s wife and daughter were


watching the dispute from the porch and heard Saeger make these threats.

          This incident was not the first time Saeger had acted in this manner. A year earlier Saeger

had been convicted on three counts of gross misdemeanor harassment for threatening members of

the Gaspar- Guerrero family. The Gaspar -Guerreros testified at trial that Saeger threatened them

in the   past, and     that   they have had       to   call   the   police on        him    several   times.      Gaspar -Guerrero and


his family believed that Saeger would carry out the new threats because he had been violent and

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Consol. Nos. 44264 -7 -I1, 44770 -3 -II, 45628 -1 - 11



scary in the past when under the influence of alcohol and had been arrested on one occasion when

he attempted to physically harm Gaspar- Guerrero.

          The State charged Saeger with three counts of felony harassment, RCW 9A.46. 020( 1)( a)( i),

2)( b),   for threatening to kill Gaspar- Guerrero, his wife, and his daughter. Saeger waived his right

to a jury trial. At trial, Saeger testified that he did not have any contact with the Gaspar -Guerreros
that night and that he did not threaten to shoot them.


          After   a   bench trial, the trial      court   found Saeger guilty     on all   three   counts.    The trial court


made oral findings of fact and conclusions of law, but did not enter written findings of fact and

conclusions of law.


          The trial court sentenced Saeger to 29 months confinement. As a part of the judgment and

sentence, the trial court issued a no- contact order against Saeger providing that he shall not have

contact with the Gaspar -Guerreros until November 26, 2017. The no- contact order also provided

that Saeger was prohibited from coming within 500 feet of the Gaspar -Guerreros' residence,

workplace, or school.



          The trial     court also   imposed legal financial         obligations against       Saeger,    including   a $   500


victim     assessment, $     200 in    filing     fees, $ 260 for   service    via sheriff, $      850 in fees for a court


appointed     attorney,     and $   100 for   a   deoxyribonucleic        acid ( DNA) collection       fee.   The trial court


entered a    finding    in the judgment       and sentence     that "[   t]he defendant has the ability or likely future

ability to pay the legal financial        obligations       imposed herein."      Clerk' s Papers ( CP) at 8. In making

this finding, the trial court further stated that it " has considered the total amount owing, the

defendant'    s present and     future ability to pay legal financial           obligations,   including      the defendant' s
Consol. Nos. 44264 -7 -II, 44770 -3 -II, 45628 -1 - II



financial   resources and    the likelihood that the defendant'      s status will change."   CP   at   7 -8.   Saeger


did not object.


        Saeger filed a notice of appeal. While this appeal was pending, Saeger filed a motion with

the trial court for an order modifying the 500 foot no- contact restriction to 100 feet because the

order as given would restrict Saeger from access to his only place of residence. The court indicated

it was " aware of the approximate distance" between the two residences when it made its decision

to impose the no- contact provision and declined to revise the no- contact sentencing condition. RP

 Apr. 8, 2013)    at   3.   Following the denial of the motion to modify the no- contact order, Saeger

filed a second notice of appeal. Shortly thereafter, Saeger also filed a PRP.

        We    consolidated      Saeger' s PRP   with   his direct    appeals.    We also ordered the State to


present, and   the trial court to   enter, written   findings   of   fact   and conclusions of   law. Consistent


with this court' s order, the trial court entered written findings of fact and conclusions of law.

                                                 ANALYSIS


A.      FAILURE To ENTER WRITTEN FINDINGS AND CONCLUSIONS


        Saeger argues that the trial court erred when it failed to enter written findings of fact and

conclusions of law as required by CrR 6. 1. CrR 6. 1( d) requires trial courts to enter written findings

of fact and conclusions of law following a bench trial, and failure to do so generally requires

remand for entry of written findings and conclusions. State v. Head, 136 Wn.2d 619, 621 -22, 624,

964 P. 2d 1187 ( 1998).


         However, on May 2, 2014, this court' s commissioner issued a ruling ordering the entry of

written findings of fact and conclusions of law, and on May 15, 2014, the trial court entered written

findings of fact and conclusions of law. Because Saeger was granted his requested relief as a result


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Consol. Nos. 44264 -7 -I1, 44770 -3 - 11, 45628 -1 - 11



of this commissioner' s ruling, and because he does not allege that he was actually prejudiced by

the delay in entry of written findings and conclusions, this issue has been resolved and needs no
further attention from this court.

B.       No CONTACT SENTENCING CONDITION


         As a condition of Saeger' s sentence, the trial court barred Saeger from coming into contact

with the Gaspar -Guerreros and from coming within 500 feet of the Gaspar -Guerreros' residence,

workplace, or school         for five   years.   Because his residence' was within 500 feet of the Gaspar -


Guerrero residence, Saeger effectively was prevented from living in his residence for up to five

years.   Saeger argues that this condition violates his constitutional right to travel and reside, and

his   right    to   equal protection.   We disagree because this crime -related sentencing condition was

reasonably necessary to support the state' s compelling interest in protecting the victims of Saeger' s

crime.



          1.        Standard of Review


          The Sentencing Reform Act of 1981, chapter 9. 94A RCW, authorizes a trial court to

impose crime- related sentencing conditions, including no- contact orders, as a part of a defendant' s

sentence.       RCW 9. 94A. 505( 8);      see also State v. Armendariz, 160 Wn.2d 106, 112 -13, 156 P. 3d

201 ( 2007). A "[ c] rime- related       prohibition" is defined as " an order of a court prohibiting conduct

that directly relates to the circumstances of the crime for which the offender has been convicted."

RCW 9. 94A.030( 10).           We generally review the imposition of crime -related prohibitions imposed

as sentencing conditions for an abuse of discretion. State v. Corbett, 158 Wn. App. 576, 597, 242



1 At the time Saeger was residing in a trailer home on property owned by his mother. Saeger
contends this is the only piece of property where he can afford to live.
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Consol. Nos. 44264 -7 -II, 44770 -3 -II, 45628 -1 - II



P. 3d 52 ( 2010). "         Abuse of discretion occurs when a decision is manifestly unreasonable or

exercised on untenable grounds or               for   untenable reasons."         Corbett, 158 Wn.2d at 597. Abuse of


discretion also occurs when the trial court uses the wrong legal standard. State v. Lord, 161 Wn.2d

276, 284, 165 P. 3d 1251 ( 2007).              Sentencing conditions usually are upheld if they are reasonably

crime -related. State v. Warren, 165 Wn.2d 17, 32, 195 P. 3d 940 ( 2008).

         Here, the sentencing condition clearly was related to Saeger' s crime of felony harassment.

However, where sentencing conditions interfere with fundamental rights, a more careful review is
required.       Warren, 165 Wn.2d              at   32.    Such    conditions      must      be " sensitively imposed"          and




                                                    the                          the State    and public order."         In re Pers.
 reasonably necessary to            accomplish            essential needs of




Restraint of Rainey, 168 Wn.2d 367, 374, 229 P. 3d 686 ( 2010) (                             quoting Warren, 165 Wn.2d at

32).    Under this     standard,       the   court examines whether             the sentencing        condition (   1)   furthers a


compelling state interest and ( 2) is reasonably necessary in scope and duration. See Rainey, 168
Wn.2d    at    377 -82. "    The extent to which a sentencing condition affects a constitutional right is a

legal   question subject       to   strict   scrutiny."     Rainey,     168 Wn.2d       at   374. Nevertheless, because the


determination to impose              a crime -related prohibition          is " necessarily fact -specific" and is " based


upon the sentencing judge' s in-person appraisal of the trial and the offender, the appropriate

standard of review remains abuse of                 discretion."       Rainey, 168 Wn.2d at 374 -75.

          2.     Fundamental Right to Travel


          The sentencing            condition    implicates Saeger'        s   right   to travel. "    The freedom to travel


throughout the United States has long been recognized as a basic right under the United States

 Constitution." State         v.   Lee, 135 Wn.2d 369, 389, 957 P. 2d 741 ( 1998).                    Orders excluding an




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Consol. Nos. 44264 -7 -1I, 44770 -3 - 11, 45628 -1 - 1I



individual from a geographic area encroach on an individual' s right to travel, which includes the

right   to travel    within a state.    See State      v.   Sims, 152 Wn.    App.   526, 531, 216 P. 3d 470 ( 2009),   aff'd

171 Wn.2d 436 ( 2011).


          However,       our   Supreme Court has held             that "   freedom of movement may not be used to

impair the individual          rights   of others."          Lee, 135 Wn. 2d     at   390.   Convicted felons may have

reasonable restrictions placed on their ability to travel throughout the state freely without violating

their   right   to travel.     See State   v.   McBride, 74 Wn.            App. 460,   466, 873 P. 2d 589 ( 1994).      The


                of   geographic    restrictions         turns   on   the   individual facts    of   each   case.   State   v.
propriety


Schimelpfenig, 128 Wn. App. 224, 230, 115 P. 3d 338 ( 2005).

          3.     State' s Interest


          The State has        a significant    interest in protecting the Gaspar -Guerrero           family. Preventing

an individual from becoming the victim of a threatened crime is a compelling state interest.

Schimelpfenig, 128 Wn. App. at 229. This compelling interest may make a geographic restriction

on the defendant' s travel appropriate when the defendant represents a continuing threat to his

victims after release. See Schimelpfenig, 128 Wn. App. at 229.

          Numerous courts have acknowledged that a sentencing condition imposing a no- contact

order with victims of a crime furthers a compelling interest in preventing future harm. See, e. g.,

Rainey, 168 Wn.2d at 377 (holding that a no contact order with the defendant' s wife and daughter,

both victims of the defendant' s crimes, furthered a compelling state interest in protecting the

victims    from future harm);          Corbett, 158 Wn. App. at 600 -01 ( holding that a protective order with

the defendant' s minor children furthered a compelling interest in protecting the children from

future harm because the           children      fell   within   the defendant'   s class of victims);   State v. Berg, 147


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Consol. Nos. 44264 -7 -II, 44770 -3 -II, 45628 -1 - II



Wn.    App.      923, 942 -43, 943 -44, 198 P. 3d 529 ( 2008) (                  holding protective order with defendant' s

female children furthered compelling interest in protecting children from the same type of harm),

abrogated on other grounds by State v. Mutch, 171 Wn.2d 646, 254 P. 3d 803 ( 2011).

         Here, there was sufficient evidence for the court to find that Saeger presented a continuing

threat to the Gaspar -Guerreros.                  A year before the events that led to this conviction, Saeger had

been convicted on three counts of gross misdemeanor harassment for threatening members of the

Gaspar- Guerrero              family. The Gaspar -Guerreros testified at trial that Saeger threatened them in

                                                                                 him             times.   Mrs. Gaspar- Guerrero
the   past, and        that   they have had        to call the    police on            several




addressed        the   court at   the sentencing        hearing for the present        conviction,   stating "[ m] y children are


very   scared of        Mr. Saeger. We thought the last incident . . when this happened the last time that


things   would get            better,   and   it hasn' t.... [    My children are] afraid that when he does come out

that   we    don' t know what to               expect."      RP   at   95 -96.   In addition, Saeger had four prior felony

convictions, including multiple convictions for violating court orders.

            In light of this evidence, it was reasonable for the court to conclude that Saeger posed a

continuing threat to the Gaspar- Guerrero family, and that protecting the family from becoming

victims of a future crime was a compelling state interest.

            4.     Reasonable Necessity

            A restriction imposed on a fundamental right must be reasonably necessary in both scope

and    duration.         Rainey,        168 Wn.2d       at   377 -81. "[     T] he interplay of sentencing conditions and

fundamental rights is delicate and fact -specific, not lending itself to broad statements and bright

line   rules."     Rainey, 168 Wn.2d at 377.




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Consol. Nos. 44264 -7 -II, 44770 -3 -II, 45628 -1 - II



         For the    restriction    to be reasonably necessary in             scope,   there   must   be "   no    reasonable




                                     the State'         compelling interest.       Warren, 165 Wn.2d         at   34 -35.   In
alternative   way" to    achieve                    s




Rainey, our Supreme Court held that a no- contact order of some duration with the defendant' s

daughter was reasonably necessary in scope, despite amounting to a complete infringement on the

defendant'    s   fundamental      right   to   parent.    168 Wn.2d    at   380.     The court determined that the


complete restriction of contact with the daughter was reasonably necessary because the

defendant' s daughter was the means though which he harassed his victim, the daughter' s mother.


Rainey, 168 Wn.2d at 380. Washington courts have upheld crime -related prohibitions that prohibit

 a   defendant'   s access   to   a means or medium         through   which   he   committed a crime."           Rainey, 168

Wn.2d at 380; see also State v. Riley, 121 Wn.2d 22, 37 -38, 846 P. 2d 1365 ( 1993).

          Here, the trial court was aware that the proximity between Saeger and the Gaspar- Guerrero

family was the means through which Saeger could harass the Gaspar- Guerrero family. Testimony
at trial from the Gaspar -Guerreros established that incidents and conflicts between Saeger and their

family originated from activities that Saeger engaged in on his neighboring property, such as

drinking    and    playing loud     music.      It was reasonable for the trial court to conclude that the only

way to further the State' s compelling interest in protecting the Gaspar -Guerreros from further

conflicts and threats was to prevent Saeger from coming within the neighboring proximity of the

Gaspar -Guerrero       residence.      The trial court' s decision to impose a restriction on Saeger that

prohibited him from living next door to the Gaspar -Guerrero family was not an abuse of discretion

even though it interferes with Saeger' s rights.


          The length of a no- contact prohibition must also be reasonable. Rainey, 168 Wn.2d at 381.

     N] o- contact orders imposed under RCW 9. 94A.505( 8) may be made effective for a period up to


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Consol. Nos. 44264 -7 -II, 44770 -3 -II, 45628 -1 - 1I



the statutory      maximum      for the defendant'   s crime."     Armendariz, 160 Wn.2d at 120. The statutory

maximum        term   for   felony harassment is   five   years.   See RCW 9A.46. 020( 2)( b) ( felony   harassment

is   a class   C   felony);   RCW 9A.20. 021( 1)(     c) (   maximum confinement for class C felony is five

years).   Here, the trial court imposed the no- contact condition of the five year maximum. We find

no basis to question the court' s exercise of discretion in imposing the statutory maximum length.

          The trial court' s sentencing condition was directly related to Saeger' s crime, and was

reasonably necessary to further the State' s interest in protecting the Gaspar- Guerrero family, and

was reasonable in both scope and duration. Accordingly, we hold the no- contact provision was a

valid exercise of the trial court' s discretion and does not constitute an unconstitutional violation of

Saeger' s right to freedom of movement.


C.        LEGAL FINANCIAL OBLIGATIONS


          1.       Ability to Pay LFOs

          Sager argues that the trial court erred in finding that he had the ability to pay LFOs.

However, we hold that Saeger did not object to the trial court' s finding or decision to order LFOs

during his sentencing hearing, and therefore that he failed to preserve his claims on appeal.

          Saeger claims that he did object to the court' s imposition of LFOs at the sentencing hearing.

He asserts that his statement at the hearing that his sole source of income was from Social Security

disability was an objection to the imposition of LFOs. However, this is a inischaracterization of




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Consol. Nos. 44264 -7 -1I, 44770 -3 - II, 45628 -1 - 1I



his   statement.    Sager merely informed the court of his disability, and did not raise a specific
                                                                                                  2
objection     to the LFOs   on   the   grounds         that he     was unable           to pay.



         An objection must be specific enough to give the trial court the opportunity to correct the

alleged error and give the opposing party an opportunity to respond. State v. Avendano- Lopez, 79

Wn.    App.   706, 710, 904 P. 2d 324 ( 1995).                Here, the statement by Saeger was insufficiently specific

to give the court or opposing party notice that Saeger was objecting to the imposition of LFOs in

their entirety.

         We have held that a defendant generally may not challenge a determination regarding the

ability to pay LFOs for the first time on appeal. State v. Blazina, 174 Wn. App. 906, 911, 301 P. 3d
492,   review granted,      178 Wn.2d 1010 ( 2013).                  Other divisions of our court have agreed. State v.


Duncan, 180 Wn. App. 245, 252 -53, 327 P. 3d 699 (2014); State v. Kuster, 175 Wn. App. 420, 422,
425 -26, 306 P. 3d 1022 ( 2013);            State v. Calvin, 176 Wn. App. 1, 302 P. 3d 509, 316 P. 3d 496, 507-

08 ( 2013).


          Saeger   relies on   State   v.   Bertrand, 165 Wn. App. 393, 267 P. 3d 511 ( 2011), review denied,


175 Wn.2d 1014 ( 2012),          to support his challenge on appeal to the trial court' s finding of inability

to pay. In Bertrand, the defendant failed to object to the finding of ability to pay and imposition

of LFOs at the time of sentencing, but the court decided to review the claims anyway because the




2
    At the sentencing   hearing,       Saeger'     s   attorney      stated: "     Mr. Saeger is 35 years old. He has his
income Social Security Disability from post-traumatic stress disorder which occurred when he
                                                                      that'       the   basis for his   disability.   He —we   would
was    severely beaten   a couple of years ago, and                           s

ask the Court that if the Court imposes any time on the probation violation that it run concurrent
with the current sentence. Mr. Saeger would also like the Court to consider an appeal bond in a
reasonable amount       that he   would       be       able   to   make."     RP at 97.



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Consol. Nos. 44264 -7 -II, 44770 -3 -II, 45628 -1 - 1I


defendant was disabled and appeared likely to remain indigent, yet was required to begin paying

her   court- ordered     LFOs   within    60 days    of   sentencing    and while still   incarcerated.    165 Wn. App.

at 404 n. 15, 405.


         Our case is distinguishable. While there was evidence that Saeger' s current income came

solely from Social Security disability, unlike in Bertrand, the court did not order the repayment of

his LFOs to begin immediately. The finding that the then -disabled defendant in Bertrand had the

present or likely future ability to pay within 60 days of sentencing and while incarcerated, is

qualitatively different from the finding that then -disabled Saeger would have the likely future

ability to pay 29        months     later,   after   he is   released    from   confinement.       Because this case is


distinguishable from Bertrand and presents less compelling reasons for review, we decline to

review the unpreserved claim of error. See Blazina, 174 Wn. App. at 911. 3

          2.     Order Imposing Discretionary LFOs

          Saeger also argues the trial court' s order requiring him to pay LFOs was erroneous and

violated   his   right   to equal   protection.      Once again, Saeger did not object belowto the imposition


of LFOs. In any event, we hold that this issue is not ripe for review.

          A trial court' s finding offact in a judgment and sentence related to the ability to pay is a

separate consideration from a court' s order imposing legal financial obligations. State v. Lundy,

176 Wn.               96, 105   n. 6,   308 P. 3d 755 ( 2013); Bertrand, 165 Wn.            App.   at   404 -05.   Unlike a
               App.

challenge to afactualfinding, which is ripe for review upon entry, a challenge to an order imposing




3 One exception in RAP 2. 5( a)( 3) allows review of unpreserved arguments involving manifest
error affecting a constitutional right. However, Saeger does not argue that RAP 2. 5( a)( 3) applies
here.

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Consol. Nos. 44264 -7 -1I, 44770 -3 - I1, 45628 -1 - II



LFOs is not ripe until the State seeks to enforce the order. Lundy, 176 Wn. App. at 105 n.6, 108;

see also   State    v.   Hathaway,    161 Wn.    App.      634, 651, 251 P. 3d 253 ( 2011). Because a person is not


an aggrieved party under RAP 3. 1 until the State seeks to enforce the award of costs and it is then

determined that the defendant has the ability to pay, appellate review is inappropriate until then. •

State v. Mahone, 98 Wn. App. 342, 349, 989 P. 2d 583 ( 1999).

          Here, nothing in the record indicates that the State has attempted to collect LFOs from
Saeger.     Accordingly, Saeger' s challenge to the order requiring payment of LFOs is not yet ripe

for   review.     See    Lundy,     176 Wn.    App.   at    109.   The appropriate time for Saeger to raise such a


challenge is when the State seeks to collect on the court- ordered LFOs and when he is then unable

to pay such obligation.

D.         SAG ISSUES


           Saeger raises numerous additional errors in two separate SAGs. Saeger' s SAG claims lack

merit.




           1.     Evidence Regarding Alleged Kidnapping

           Saeger asserts that the trial court erred by refusing to admit evidence that Saeger had been

investigated in connection with false allegations of the Gaspar -Guerreros' daughter that she had

been kidnapped ( ground             one).   We disagree.


           We review a trial court' s evidentiary rulings limiting the scope of cross -examination for an

abuse of        discretion.   State    v.   Campbell, 103 Wn.2d 1,        20, 691 P. 2d 929 ( 1984). "   The right to


confront and cross -examine adverse witnesses is guaranteed by both the federal and state

constitutions." State         v.   Darden, 145 Wn.2d 612, 620, 41 P. 3d 1189 ( 2002). But the right to cross -


examine witnesses is not absolute, and it is limited by considerations of relevance. Darden, 145


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Consol. Nos. 44264 -7 -II, 44770 -3 -II, 45628 -1 - II



Wn.2d    at    621.   Evidence is relevant if it has " any tendency to make the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would

be   without    the   evidence."    ER 401.


          Here, Saeger asked the trial court to allow him to present evidence that one of the Gaspar -


Guerreros' children had run away from home but made it appear as though she was kidnapped

from her bedroom, and that police officers obtained a warrant to search Saeger' s trailer during the

investigation. Saeger argued that this evidence impeached the Gaspar -Guerreros' credibility. The

trial court excluded any evidence related to the incident because it did not demonstrate that the

Gaspar -Guerreros made any false allegations.

          The trial court did not abuse its discretion. Nothing about the incident is relevant to the

case against Saeger or the Gaspar -Guerreros' credibility. There is no indication that the Gaspar -

Guerreros made false allegations against Saeger or even that the Gaspar -Guerreros alleged that

their daughter had been kidnapped. Although the police had obtained a search warrant for Saeger' s

trailer, it was as a result of their own suspicions based on the history between the parties and

Saeger'   s    proximity.    In the absence of any evidence that the Gaspar -Guerreros made any false

allegations, the incident could not be the basis for impeachment.

          2.      Judicial Bias


          Saeger       asserts   that the trial   court was   biased   against   him because ( 1)   the trial court



instructed him not to answer questions with " uh -hum" but did not instruct other witnesses not to

answer questions with " uh -hum"            (   ground two) and ( 2) because the trial court found him guilty




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Consol. Nos. 44264 -7 -II, 44770 -3 - II, 45628 -1 - II



even    though there            was "   lack   of rancor      in the   voices of   the   witnesses" (   ground eight).4 SAG at 1,

3.    We disagree.


              A party claiming bias or prejudice must support the claim with evidence of the trial court' s

actual or potential             bias. State        v.   Gamble, 168 Wn.2d 161, 187 -88, 225 P. 3d 973 ( 2010).               Saeger


does not present any evidence that would indicate that instructing Saeger not to answer questions'

with " uh- hum,"            even if the court did not instruct other witnesses, is evidence of actual or potential

bias.     And regarding the demeanor of the witnesses, the trial court in a bench trial has broad

discretion to determine                 witness         credibility. See State v. Camarillo, 115 Wn.2d 60, 71, 794 P. 2d


850 ( 1990) ( "           Credibility determinations are for the trier of fact and cannot be reviewed on

appeal. ").         Accordingly, credibility determinations are not evidence supporting a claim of bias.

              3.        Evidence Regarding Saeger' s Interactions with the Gaspar -Guerreros

              Saeger contends that the trial court improperly allowed the State to present evidence of (1)

Saeger' s prior threats against the Gaspar -Guerreros ( ground three) and ( 2) prior problems between

Saeger and the Gaspar -Guerreros because Saeger had been playing loud music, drinking, and

partying late            at night ( ground        four).   Specifically, Saeger alleges that the evidence was not relevant.

We disagree.


              We review the trial court' s decision to admit evidence of the defendant' s prior acts for an

abuse of           discretion. State         v.   Binkin, 79 Wn.        App.   284, 289, 902 P. 2d 673 ( 1995),        overruled on




other grounds              by   State   v.   Kilgore, 147 Wn.2d 288 ( 2002).                When a defendant is charged with




4
     In its   oral      ruling, the trial court specifically stated that             what    it "found   most   interesting ...   was

the lack           of   rancor in the voices of the witnesses.     They
                                                           didn' t appear to be here out to get Mr.
 Saeger for something." RP at 88. It appears that Saeger may have misunderstood the trial court' s
use of the word rancor, which is not inconsistent with finding that the witnesses were credible.
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felony harassment, evidence of a prior bad act or threat may be admitted to show that the victim' s

fear was reasonable. See Binkin, 79 Wn. App. at 292 -93. Evidence of Saeger' s prior acts towards

the Gaspar -Guerreros was relevant to the reasonable fear element of felony harassment. See State

v.   Ragin, 94 Wn.    App. 407,    411 - 12, 972 P. 2d 519 ( 1999).    Accordingly, this evidence was relevant

and the trial court did not abuse its discretion in allowing this testimony.

             Saeger did not object to the State' s questions regarding Saeger' s prior problems with the

Gaspar -Guerreros. We do not review issues raised for the first time on appeal unless the alleged

error   is   a manifest error   affecting    a constitutional right.   RAP 2. 5(   a)(   3).   Saeger' s allegations that


the trial court erred by admitting irrelevant evidence is not a manifest error affecting a

constitutional right. Accordingly, Saeger may not raise his challenge to the evidence regarding his

past problems with the Gaspar -Guerreros for the first time on appeal.

             4.   Deputy Gray' s Testimony

             Saeger alleges that Deputy Gray made up his testimony that Saeger had been drinking

alcohol on the night of the incident because Deputy Gray' s report did not mention that Saeger had

been    drinking ( ground       five).    However, the trial court in a bench trial has sole discretion to

determine credibility and the weight of evidence, and we will not disturb these decisions on appeal.

Camarillo, 115 Wn.2d         at   71.    Moreover, based on the trial court' s findings of fact and conclusions


of law, the trial court did not rely on Deputy Gray' s testimony when making its determination of

 Saeger' s guilt.


             5.   Prosecutor' s Lack of Preparation


             Saeger alleges that the State was unprepared because the prosecutor left some case law in

 his office ( ground six) and forgot to bring the written findings of fact and conclusions of law to

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court ( ground        nine).    At best, Saeger' s       allegations can be characterized as allegations of


prosecutorial      misconduct.           We hold that these allegations cannot support a prosecutorial


misconduct claim.



         To prevail on a claim of prosecutorial misconduct, a defendant must show that the

prosecutor' s conduct was improper and prejudicial. State v. Thorgerson, 172 Wn.2d 438, 442, 258

P. 3d 43 ( 2011).     Saeger has failed to allege how he was prejudiced by the prosecutor leaving copies

of case law in his office. And any prejudice caused by the prosecutor leaving the findings of fact

and conclusions of law in his office was later cured by the trial court' s supplemental findings of

fact and conclusions of law.


         6.      Sufficiency of the Evidence

         Saeger challenges the sufficiency of the evidence against him, specifically citing the fact

that the State failed to call as a witness Jose Castarina, the individual to whom Saeger was speaking

when    he    made    the threats   at   issue in this   case ( ground seven).      We hold that the evidence was


sufficient to convict Saeger.


          When a defendant challenges the' sufficiency of the evidence following a bench trial, our

review " is limited to determining whether substantial evidence supports the findings of fact and,

if   so, whether    the findings    support    the   conclusions of   law." State    v.   Homan,   Wn.2d ,     330


P. 3d 182, 185 ( 2014). Substantial evidence is evidence sufficient to persuade a fair -minded person


of   the truth   of   the   matter asserted.     Homan, 330 P. 3d       at   185.   When raising a challenge to the

 sufficiency of the      evidence, "     the defendant necessarily admits the truth of the State' s evidence and

 all reasonable      inferences that     can   be drawn from it." Homan, 330 P. 3d at 185.




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Consol. Nos. 44264 -7 -II, 44770 -3 - II, 45628 -1 - II



         To convict Saeger of felony harassment, the State must prove that Saeger, without lawful

authority, knowingly threatened to kill the Gaspar -Guerreros and that the Gaspar -Guerreros
                                                               be                  RCW 9A. 46. 020( 1), .    020( 2)( b)( ii).
reasonably believed that the threat to kill
                                                      would         carried out.




The trial court found that Saeger threatened to blow up the Gaspar -Guerreros. The trial court also

found that the Gaspar -Guerreros had a reasonable belief that the threat to kill would be carried out

because    of   the   history   between them     and   Saeger. The Gaspar -Guerreros all testified at trial that



they   personally heard Saeger threaten to kill them                 by blowing     them up.      They also testified that

they believed Saeger            would   carry   out   his threats kill them.            Taking this testimony as true,

substantial evidence supports           the trial   court' s   findings   of   fact. And the trial court' s findings of


fact support the trial court' s conclusion that Saeger was guilty of felony harassment.

         The trial court clearly found that the Gaspar -Guerreros' testimony was credible. The fact

that Castarina did not testify at trial does not undermine the Gaspar -Guerreros' testimony or

preclude       the trial court   from making findings           of   fact based    on   their   testimony.   Accordingly,

Saeger' s challenge to the sufficiency of the evidence supporting his conviction fails.

          7.      Saeger' s Past Felony Convictions

          Saeger alleges that the State improperly presented evidence of his prior felony convictions

because    they    were not relevant      to the case.     However, the State presented Saeger' s prior felony

convictions       during   sentencing,   not    during   the trial.    The State properly presented Saeger' s prior

felony convictions for the purposes of calculating his offender score and standard sentencing

range.    Former RCW 9. 94A. 525, . 530 ( 2011).                 Therefore, the State did not improperly present

Saeger' s prior felony convictions.




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          8.       Proof of Alcohol and Mental Health Treatment


          In ground eleven, Saeger alleges:


          The court had proofthat I compleated [sic] alcohal [ sic] and mental health treatment
          when they found me guilty of a crime that I didn' t commit when they assumed that
          I    was   drinking   alcohal [ sic].   I believe there has been an error on that as well.


SAG    at     4.   Although an issue in the SAG does not require citations to the record, argument, or


authority, the statement must " inform the court of the nature and occurrence of alleged errors."

RAP 10. 10. Here,          we cannot ascertain       the   nature of   Saeger'   s alleged error.   Accordingly, we do

not address this alleged ground.


            9.       Saeger' s Right to Not Testify

            Saeger alleges that defense counsel failed to inform him that he had the choice to not testify

in the trial ( ground twelve). Whether Saeger' s defense counsel failed to inform him of his rights


regarding testifying at trial relies on facts outside the record. We do not address claims based on
facts outside the record on direct appeal. State v. McFarland, 127 Wn.2d 322, 338, 899 P. 2d 1251

 1995).        Accordingly, we do not address Saeger' s claim that his defense counsel never informed

him he had the choice to not testify.

            10.       No- Contact Order


            In his second SAG, Saeger raises issues regarding the no- contact order imposed as a

condition of his sentence. He argues that the no- contact order ( 1) violates his constitutional right

to   reside on       his property ( ground   one) and ( 2) violates equal protection ( ground         two).   We already

have    addressed        the constitutionality     of   the   no- contact order.    Accordingly, we do not consider

Saeger' s SAG issues related to the no contact order any further.




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Consol. Nos. 44264 -7 -II, 44770 -3 -I1, 45628 -1 - 1I



E.        PRP IssuEs


          In his PRP, which was consolidated with his initial appeal, Saeger asserts two additional

claims.     First, Saeger contends that he was not read his rights by the arresting officers during the

time   of   his   arrest and   therefore he "   shouldn'    t   even   be locked up in      confinement."    PRP at 4.


Second, he argues that he was told by his attorney to take the stand during trial, that he wasn' t

informed of his choice to testify or not, and that this constituted a violation of his Fifth Amendment

rights. We disagree with both claims.


            Courts may grant relief in response to a timely PRP only if the petitioner is under unlawful

restraint as      defined in RAP 16. 4( c).   A court will only grant relief if other available remedies, such

as a   direct   appeal, are    inadequate   under   the   circumstances.      RAP 16. 4( d).    A petitioner alleging a

constitutional error must make the heightened showing by a preponderance of the evidence that

the petitioner suffered actual prejudice. In re Pers. Restraint of Yates, 177 Wn.2d 1, 17, 296 P. 3d

872 ( 2013).       Where a petitioner fails to make a prima facie showing of actual prejudice regarding

an alleged constitutional error,        dismissal is necessary. Yates, 177 Wn.2d at 17.


            The petitioner must state the " facts upon which the claim of unlawful restraint of petitioner


is based        and   the   evidence   available    to    support    the   factual    allegations."   RAP    16. 7( a)( 2).


Conclusory         allegations are not sufficient.        Yates, 177 Wn.2d     at    18. If the petitioner' s allegations


rely on matters outside the factual record, the petitioner must show that he has admissible evidence

to   support    his   allegations.   Yates, 177 Wn.2d at 18.




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Consol. Nos. 44264 -7 -II, 44770 -3 - I1, 45628 -1 - I1



          1.    Alleged Miranda5 Violation


          Saeger     contends     that he    was not " read [    his]   rights"    by   his arresting   officer.   PRP at 4.


Beyond this     assertion of error,         Saeger fails to demonstrate —            or even assert —        how this failure


prejudiced     him   at   trial. "[   B] ald assertions and conclusory allegations" are not sufficient to entitle

petitioner to relief. Yates, 177 Wn.2d at 18; In re Pers. Restraint of Rice, 118 Wn.2d 876, 886,

828 P. 2d 1086 ( 1992). Factual allegations must be based on more than conjecture or inadmissible


hearsay; the petitioner must provide admissible evidence in the form of affidavits and other
corroborative evidence           to    support   his   allegation of error.       Yates, 177 Wn.2d      at   18.   Saeger has


failed to provide corroborating evidence, or evidence in the form of an affidavit to support his

appeal.



          Moreover, Saeger' s assertion of error is in direct conflict with the evidence presented at


trial. At trial, the arresting officer, Deputy Gray, testified that Saeger was advised of his rights. In

light of this contradicting evidence, and Saeger' s failure to support his assertion of error with

affidavits or otherwise sufficiently admissible evidence, he has failed to meet his evidentiary

burden for this issue.


          2.    Alleged Violation of Saeger' s Right to Not Testify

          Saeger again raises a challenge to his conviction on the grounds that he was not informed


of his right to not testify at trial. Brought either as an allegation of ineffective assistance of counsel

or as a violation of his Fifth Amendment rights, Saeger fails to meet his evidentiary burden of

proof.




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

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Consol. Nos. 44264 -7 -I1, 44770 -3 - 11, 45628 -1 - I1



        Saeger'   s allegation relies on evidence not      found in the   record — namely,   conversations


between Saeger      and   his attorney —and therefore, he must provide admissible evidence to support


his allegation. See Yates, 177 Wn.2d at 18. But Saeger fails to provide any additional evidence to

support this alleged error beyond what he already raised in his SAGs. Although a personal restrain

petition is the appropriate venue for raising issues relying on facts outside the record, Saeger has

failed to actually present additional evidence supporting his assertion that his defense attorney did

not inform him of his right to refuse to testify. Therefore, Saeger' s claim fails.

        Because Saeger fails to meet his burden to show that he is entitled to relief, we deny his

PRP.


        We affirm Saeger' s convictions and sentence and deny his personal restraint petition.

        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 in accordance with RCW 2. 06. 040,

it is so ordered.




 We concur:




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