      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  DIVISION ONE                   %
              Respondent,
                                                  No. 72433-9-1                  ^
         v.
                                                  UNPUBLISHED OPINION                '&,
DAVID WAYNE WILLIAMS,
                                                                                      c



              Appellant.                          FILED: November 24, 2014


       Dwyer, J. — David Williams appeals his conviction of malicious mischief

in the second degree. On appeal, he maintains that (1) his right to a speedy trial
was violated, (2) insufficient evidence was adduced at trial to support his

conviction, and (3) the trial court erred by refusing to instructthe jury that

malicious mischief in the third degree was a lesser-included offense of the crime

charged. Finding no error, we affirm.

                                           I


       In July of 2012, Williams was incarcerated at the Clark County Jail.
During the evening of July 14, Officer Duncan Paddy was instructed to inspect an
area in which Williams was housed based on indications that the fire-suppression

system had been activated in that area. When Paddy arrived at Williams' cell, he
could see mist in the air and smell oil. Based on his prior experience, he

understood these things to mean that the jail's fire-suppression system had been
No. 72433-9-1/2



activated.


       Paddy removed Williams from his cell and placed him in a different cell.

When he asked Williams what had happened, Williams told him, "I can't take it

anymore." Williams indicated that he had not eaten in a week and that he was

being "antagonized" by the custody staff. When asked why he had not eaten,

Williams responded, "I can't eat that shit"—referring to his diet of "Nutraloaf."1

       A maintenance worker, Toby Dobrava, was then called to inspect

Williams' cell. Dobrava discovered that one of the sprinkler heads in Williams'

cell had been damaged. It took Dobrava one hour to fix the damaged sprinkler

head. Inmate workers, who were supervised by Paddy, spent between 30 and

40 minutes cleaning the oil from the floor and walls of Williams' cell.

       Paddy later testified that Williams' actions caused the fire-suppression

system throughout the entire jail facility to be "deactivated." Paddy testified that

the system is not functional until a maintenance worker reactivates the system.

       Dobrava testified that "the sprinkler system . . . would put a fire out still"

before being reset; however, he stated that the system would be "in a 'trouble'

state." When asked whether the system would need to be reset in order for the

"alarms to be working correctly," Dobrava answered affirmatively.

       Williams was initially charged with malicious mischief in the second

degree pursuant to RCW 9A.48.080(1)(a).2 The charge was later amended to



       1 Described as "a small bread" and "a nutritious drink."
       2(1) A person is guilty of malicious mischief in the second degree if he or she
       knowingly and maliciously:
No. 72433-9-1/3



allege malicious mischief in the second degree pursuant to RCW

9A.48.080(1)(b).3

       On July 27, 2012, Williams was arraigned. A trial date was set for August

27. During the arraignment, Williams' counsel stated to the trial court, "I mean

there's an issue of competency going on, but we'll deal with that later." Williams'

counsel was referring to the fact that his client had not eaten for "ten or eleven

days" and while his counsel "went ahead with arraignment today because I

thought [Williams] was probably in a competent enough situation to do that... if

he continually cannot eat, he's going to deteriorate." His counsel went on to say

that there was "a competency issue" and "I'm worried about competency issues."

       On August 8, at a pretrial hearing, both Williams' counsel and the trial

court expressed doubts about Williams' competency.

       MR. SOWDER: ... I mean, he's not eating - not eating, not much
       eating. Ithink he said he nibbled a little bit of Nutraloaf. Sliding
       into incompetency, if not there already ....
       JUDGE WOOLARD: Yes, I understand.

       MR. SOWDER: And two, he might have starved himself to death
       by then, or whatever he would, due to incompetence.. ..
       JUDGE WOOLARD: If you're concerned about his competency,
       then that's where we are.
       MR. SOWDER: But I do that, we enter this quagmire. But my point
       is-
       JUDGE WOOLARD: And maybe he's not competent if he's that

               (a) Causes physical damage to the property of another in an amount
       exceeding seven hundred fifty dollars.
       3(1) A person is guilty of malicious mischief in the second degree if he or she
       knowingly and maliciously:

               (b) Creates a substantial risk of interruption or impairment of service
       rendered to the public, by physically damaging or tampering with an emergency
       vehicle or property of the state, a political subdivision thereof, or a public utility or
       mode of public transportation, power, or communication.

                                                 -3-
No. 72433-9-1/4



       self-destructive.

       On August 23, at a readiness hearing, the trial court indicated that the

custody staff had asked to have Williams confined to the jury box because of

"spitting" concerns. Shortly thereafter, Williams interrupted his counsel to say,

"I'm not coming to this chicken-shit, fucking place." The trial court immediately

terminated the hearing.

       Following the hearing, the trial court ordered a competency evaluation for

Williams. The order required that the evaluation be performed at Western State

Hospital.

       On August 29, Williams' counsel filed a declaration in which he said, "I

have known David Williams for a number of years and I see him decompensating

and becoming irrational."

       On October 23, the trial court entered an order of competency and set a

trial date of November 5. Williams, through his counsel, moved to dismiss the

charges against him, asserting that his right to a speedy trial had been violated.

The basis for his assertion was that, because there had been no factual basis for

ordering a competency hearing, the time that elapsed between the orderfor a
competency hearing and the order finding him competent to stand trial should not

have been excluded from the speedy trial calculation. Williams' counsel then

moved to withdraw on the basis that he would be a critical witness at the hearing

on the motion to dismiss. The trial court allowed Williams' counsel to withdraw

and appointed a new attorney to representWilliams. Over the next few months,
the trial court granted two further requests from Williams to replace his counsel.

                                        -4-
No. 72433-9-1/5



With each replacement, the trial date was continued.

       On April 8, 2013, a hearing was held on Williams' speedy trial motion. At

the hearing, Williams' first attorney testified that the trial judge had, without being

asked by either the State or by Williams, stated that she would entertain an order

for a competency evaluation and had then left the courtroom without giving

Williams an opportunity to address the issue. Following additional testimony and

argument, the trial court denied Williams' motion to dismiss, finding that, in view

of Williams' manner, appearance, speech, and behavior, Judge Woolard had not

abused her discretion in ordering a competency evaluation and, therefore, the

proceedings relating to the determination of competency had been properly

excluded from Williams' speedy trial calculation pursuant to CrR 3.3(e)(1).4

       On April 10, 2013, the case was tried to a jury. The State called three

witnesses: Paddy, Dobrava, and a deputy prosecutor who had been in court at

Williams' first appearance. Following the close of evidence, the trial court

refused Williams' request to instruct the jury that malicious mischief in the third

degree was a lesser included offense of malicious mischief in the second degree.

The jury returned a guilty verdict, and Williams was sentenced within the

standard range.

       He now appeals.



       4       (e) Excluded Periods. The following periods shall be excluded in
       computing the time for trial:
               (1) Competency Proceedings. All proceedings relating to the
       competency of a defendant to stand trial on the pending charge, beginning on the
       date when the competency examination is ordered and terminating when the
       court enters a written order finding the defendant to be competent.
No. 72433-9-1/6




       Williams asserts that his right to receive a speedy trial was violated. This

violation occurred, he avers, because the trial court abused its discretion in

ordering an examination to determine whether he was competent to stand trial

and, as a result of this error, the time that elapsed between the order to

determine competency and the order finding him competent was improperly

excluded from the speedy trial calculation. We disagree.

       "It is fundamental that no incompetent person may be tried, convicted, or

sentenced for the commission of an offense so long as the incapacity continues."

State v. Wicklund. 96 Wn.2d 798, 800, 638 P.2d 1241 (1982) (citing RCW

10.77.050). "'Indeed, the conviction of an accused while he is legally

incompetent violates his constitutional right to a fair trial under the Fourteenth

Amendment's due process clause.'" State v. Minnix, 63 Wn. App. 494, 497, 820

P.2d 956 (1991) (quoting Wicklund, 96 Wn.2d at 800).

       "The test for competency to stand trial is whether the accused is capable

of properly understanding the nature of the proceedings against him and whether

he is capable of rationally assisting his legal counsel in the defense of his cause."

Wicklund, 96 Wn.2d at 800 (citing RCW 10.77.010(6)). Pursuant to RCW

10.77.060(1 )(a),5 whenever "there is a reason to doubt" the defendant's



       5Whenever a defendant has pleaded not guilty by reason of insanity, or there is
       reason to doubt his or her competency, the court on its own motion or on the
       motion of any party shall either appoint or request the secretary to designate a
       qualified expert or professional person, who shall be approved by the prosecuting
       attorney, to evaluate and report upon the mental condition of the defendant.
RCW 10.77.060(1 )(a).

                                             -6-
No. 72433-9-1/7



competency, the trial court is required to appoint experts and order a formal

competency hearing. City of Seattle v. Gordon, 39 Wn. App. 437, 441, 693 P.2d

741 (1985) ("The procedures of the statute are mandatory and not merely

directory."). "The factors a trial judge may consider in determining whether or not

to order a formal inquiry into the competence of an accused include the

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

behavior, medical and psychiatric reports and the statements of counsel.'" In re

Pers. Restraint of Fleming, 142 Wn.2d 853, 863, 16 P.3d 610 (2001) (quoting

State v. Dodd, 70 Wn.2d 513, 514, 424 P.2d 302 (1967)). Any party to a criminal

case or the trial court may move to have a defendant evaluated for competency.

RCW 10.77.060(1 )(a).

       A trial court's decision on whether to order a competency examination is

reviewed for an abuse of discretion. State v. Heddrick, 166 Wn.2d 898, 903, 215

P.3d 201 (2009). Atrial court abuses its discretion when its decision is arbitrary
or is based upon untenable grounds or made for untenable reasons. State v.
McDonald, 138 Wn.2d 680, 696, 981 P.2d 443 (1999).

       Our review of the trial court record reveals that the trial court acted well

within its discretion when ordering an evaluation of Williams' competency to

stand trial. Williams' counsel repeatedly represented to the court that his client

was either approaching incompetence or was already incompetent. The trial
court, in turn, expressed doubts about Williams' competence, which were not
disputed by Williams or by his counsel. Furthermore, the trial court witnessed
Williams' profane outbursts and was informed of concerns about him "spitting" in
                                         -7-
No. 72433-9-1/8



court.


         The repeated acknowledgment by both Williams' counsel and the trial

court that Williams' competency was in question, coupled with Williams' own

aberrant behavior in court, provided a "reason to doubt" that Williams was

competent to stand trial. Consequently, the trial court did not abuse its discretion

by ordering a competency examination.6

         Both the United States Constitution and the Washington Constitution

provide a criminal defendant with the right to a speedy public trial. U.S. Const.

amend. VI; Wash. Const, art. I, § 22. Our state constitution "requires a method

of analysis substantially the same as the federal Sixth Amendment analysis and

does not afford a defendant greater speedy trial rights." State v. Iniquez, 167

Wn.2d 273, 290, 217 P.3d 768 (2009). A defendant who is in custody pending

trial is entitled to be tried within 60 days of arraignment. CrR 3.3(b)(1)(i), (c)(1).

However, the time between when a competency examination is ordered and

when a competency determination is made is excluded from this 60-day

calculation. CrR 3.3(e)(1).

         Williams was arraigned on July 27, 2012. On August 23, a competency

examination was ordered. On October 23, an order of competency was entered

and a trial date was scheduled for November 5.7 Excluding from consideration



         6 Williams contends that it was an abuse of discretion to order a competency examination
(1) off ofthe record, (2) without considering the input of either the prosecutor or defense counsel,
(3) and without providing him notice or an opportunity to be heard. Adherence to these
procedures is not dictated by any constitutional, statutory, or judicial authority.
         7Williams' trial did not commence until April 10, 2013. However, the delay was
attributable to Williams' motion to dismiss and repeated requests for replacement counsel.

                                                -8-
No. 72433-9-1/9



the two-month time period during which Williams' competency was being

evaluated reveals that Williams was brought to trial in a timely fashion, as

described by rule. Given our conclusion that there was no abuse of discretion,

and in view of CrR 3.3(e)(1), Williams' right to receive a speedy trial was not

violated.

                                          Ill


       Williams next challenges the sufficiency of the evidence to support his

conviction of malicious mischief in the second degree. He maintains that the

State failed to adduce sufficient evidence to prove that his action of damaging the

sprinkler head created a substantial risk of interruption or impairment of service

rendered to the public. We disagree.

       The prosecution must prove every element ofthe crime charged beyond a
reasonable doubt. State v. Brown, 147 Wn.2d 330, 339, 58 P.3d 889 (2002).

Thus, when reviewing a challenge to the sufficiency of the evidence, "'the
relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.'" State v. Green, 94
Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).

        "A claim of insufficiency admits the truth of the State's evidence and all
inferences that reasonably can be drawn therefrom." State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992). "In determining the sufficiency of the
evidence, circumstantial evidence is notto be considered any less reliable than

                                         -9-
No. 72433-9-1/10



direct evidence." State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980).

"Deference must be given to the trier of fact who resolves conflicting testimony

and evaluates the credibility of witnesses and persuasiveness of material

evidence." State v. Carver, 113 Wn.2d 591, 604, 781 P.2d 1308, 789 P.2d 306

(1989).

      Williams was charged by amended information, pursuant to RCW

9A.48.080(1 )(b), with the crime of malicious mischief in the second degree.

       (1) A person is guilty of malicious mischief in the second degree if
       he or she knowingly and maliciously:

             (b) Creates a substantial risk of interruption or impairment of
      service rendered to the public, by physically damaging or tampering
      with an emergency vehicle or property of the state, a political
      subdivision thereof, or a public utility or mode of public
      transportation, power, or communication.

RCW9A.48.080(1)(b).

       This statute "requires only that the defendant '[c]reates a substantial risk

of interruption or impairment,' not that the defendant actually did interrupt or

impair" service rendered to the public. State v. Turner, 167 Wn. App. 871, 877,

275 P.3d 356 (2012) (alteration in original) (quoting RCW 9A.48.080(1)(b)).

Contrary to that which was intimated by Williams, the statute does not require a

showing of "substantial impairment."

          On appeal, Williams avers that the evidence was insufficient to prove

beyond a reasonable doubt that he "created a substantial risk of interruption or

impairment of services rendered to the public."8 He relies on two Washington


          8 He concedes that sufficient evidence supports the other elements of the crime charged.

                                               -10-
No. 72433-9-1/11



appellate court decisions: Turner, 167 Wn. App. 871, and State v. Hernandez,

120 Wn. App. 389, 85 P.3d 398 (2004). Only Turner squarely addressed the

issue presented by this appeal. However, it does not support Williams' position.

       As an initial matter, Hernandez is inapposite. In that case, the defendant

spit several times in the back of a police vehicle, which caused an officer to

spend about 15 minutes cleaning up the mess. Hernandez, 120 Wn. App. at

390-91. In holding that there was insufficient evidence that the defendant

"knowingly and maliciously damaged or tampered with the police vehicle or that

he consequently created a substantial risk of interruption or impairment of its

service to the public," the court emphasized that the defendant "did not disrupt

emergency services by physically manipulating a device crucial to those

services." Hernandez, 120 Wn. App. at 392 (emphasis added). Because the

court's decision was based, in large part—if not wholly—on its conclusion that

the defendant had not "damaged or tampered with the police vehicle," it is not

instructive in resolving this issue.

       On the other hand, Turner is instructive. In that case, the defendant broke

a police vehicle's rear window, which caused the vehicle to be unavailable for

one day. Turner, 167 Wn. App. at 875. In holding that there was sufficient

evidence that the defendant "created a substantial risk of interrupting or impairing

service to the public," the court concluded that the jury could have inferred "that

having fewer patrol cars available may impair service to the public." Turner, 167

Wn. App. at 877-878.



                                         11
No. 72433-9-1/12



       Here, as in Turner, there was sufficient evidence to support Williams'

conviction. The evidence showed that, as a result of Williams' actions, a jail cell

was out of commission for around one and a half hours. During this time, two jail

inmates were brought in to clean up the mess caused by Williams. The inmates,

who were being supervised by Paddy, spent between 30 and 40 minutes

cleaning. Additionally, Dobrava spent around one hour repairing the sprinkler.
Furthermore, as a result of Williams' actions, the entire fire-suppression system

was in a "trouble" state until the system was reset, which required Dobrava's

expertise. In view of the foregoing evidence, the jury could have inferred—based
on a common understanding of "impairment"—that the loss of use of a cell for
over one hour, the diversion of prison resources to clean up the mess and repair
the damage, the actual damage caused to the sprinkler, and the "trouble" state in
which the fire-suppression system remained until it was reset by Dobrava—
together—demonstrated a substantial risk of interruption or impairment of service
rendered to the public. Accordingly, Williams is not entitled to appellate relief.
                                                  IV


        Williams next contends that he was denied his right to receive a fair trial.

This denial occurred, he avers, when the trial court refused to instruct the jury

that malicious mischief in the third degree was a lesser-included offense of
malicious mischief in the second degree under RCW 9A.48.080(1)(b). We

disagree.9


         9Williams does not assert that the trial courterred in refusing to instruct the jury that
 malicious mischief in the third degree constituted an inferior-degree crime. Accordingly, we do

                                                -12-
No. 72433-9-1/13



        In Washington, a defendant is entitled to an instruction on a lesser-

included offense where the following two conditions are met: (1) "each of the

elements of the lesser offense must be a necessary element of the offense

charged," and (2) "the evidence in the case must support an inference that the

lesser crime was committed." State v. Workman, 90 Wn.2d 443, 447-48, 584

P.2d 382 (1978).

        Our review is de novo. State v. Tamalini, 134 Wn.2d 725, 729, 953 P.2d

450 (1998) ("Because the trial court rejected Tamalini's proposed instruction on

the basis that first and second degree manslaughter are not, as a matter of law,

lesser included offenses of second degree felony murder, we review the claimed

error de novo.").

        When a defendant is charged with malicious mischief in the second

degree pursuant to RCW 9A.48.080(1)(b), malicious mischief in the third degree

does not constitute a lesser-included offense of the crime charged. When

charged pursuant to RCW 9A.48.080(1 )(b), a defendant may be convicted of

malicious mischief in the second degree if he either physically damages an

emergency vehicle or property of the state, or tampers with an emergency

vehicle or property of the state. Thus, causing "physical damage" is not a

necessary element of malicious mischief in the second degree under RCW

9A.48.080(1 )(b). However, under RCW 9A.48.090(1 )(a), a defendant may be

not address that issue. Cf. State v. Tamalini. 134 Wn.2d 725, 730-31, 953 P.2d 450 (1998)
(where the defendant's proposed jury instruction did not contain the words "'inferior degree,'" our
Supreme Court nevertheless considered the defendant's assertion on appeal that the trial court
erred by refusing to give the proposed inferior degree instruction "because the terms 'inferior
degree offense' and 'lesser included offense' have often been used interchangeably").

                                                13
No. 72433-9-1/14



convicted of malicious mischief in the third degree only if he physically damages

the property of another. Accordingly, given that it would be possible for a

defendant to commit malicious mischief in the second degree when charged

pursuant to RCW 9A.48.080(1 )(b) without committing malicious mischief in the

third degree, the latter is not a lesser-included offense of the former, and the trial

court did not err by refusing to instruct the jury as such.

       Affirmed.




We concur:




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                                           14
