                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        September 20, 2016



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STATE OF WASHINGTON,                                             No. 47351-8-II

                                Respondent,

         v.

    SHAWN DION OLLISON,                                       UNPUBLISHED OPINION

                                Appellant.

        MELNICK, J. — Shawn Dion Ollison appeals his sentence and convictions for robbery in

the first degree with a deadly weapon enhancement (count I), burglary in the first degree with a

deadly weapon enhancement (count II), theft of a motor vehicle (count III), attempting to elude a

police vehicle with a special allegation1 (count VII), and hit and run of an attended vehicle (count

VIII). We conclude that the trial court did not violate Ollison’s right to a fair trial, however, the

trial court did err when calculating Ollison’s offender score. We also conclude that the information

was not defective. We do not consider Ollison’s claim that he received ineffective assistance of

counsel. Therefore, we affirm Ollison’s convictions, but remand for resentencing.




1
  The State alleged that Ollison “committed the aforesaid Eluding while endangering one or more
persons other than himself or the pursuing law enforcement officer.” Suppl. Clerk’s Papers (CP)
at 3; RCW 9.94A.834.
47351-8-II


                                              FACTS

         On the morning of August 25, 2014, Ollison entered the home of a complete stranger, Aleta

Miller. He entered her kitchen as she was getting ready to leave for work.2 Ollison held a “big

stick” like a baseball bat. 1 Report of Proceedings (RP) at 111. It measured approximately two

inches by two inches in circumference and three feet in length. Ollison demanded Miller give him

her keys to her Subaru Forrester. He said to Miller that it was a “matter of life and death,” and if

she did not cooperate he would “smash [her].” 1 RP at 111, 122. Miller found her keys and gave

them to Ollison. Ollison also grabbed $60 in cash from Miller’s hand before exiting the house.

Miller followed Ollison outside and began to dial 911, but Ollison heard the phone’s key pad

beeping, and he yelled at her not to call anyone or he would kill her. As Ollison began to come

back towards Miller, she threw her cell phone into some nearby plants. Ollison went after the

phone and retrieved it. Miller ran towards her neighbor, Bob Rude’s, house and yelled for help.

         Rude came outside, quickly went into his own house, and then returned outside with a gun.

At this point, Ollison entered Miller’s car and tried to exit the driveway. Rude told Ollison at

gunpoint to get out of the car. Miller closed the iron gate blocking her driveway to prevent Ollison

from leaving. With Rude pointing the gun at him, Ollison exited the car, left the door open, and

laid down on the ground. Miller left to find Rude’s wife to call 911. They called 911 for assistance.

Ollison repeatedly said to Rude, “Shoot me, shoot me. It’s a matter of life and death. Just shoot

me.” 1 RP at 135. A passerby who knew Rude stopped to help. During the commotion, Miller’s

dog jumped into her car. Ollison eventually got up from the ground and approached the fence

while challenging Rude to shoot him. Ollison reentered Miller’s car and drove as fast as he could




2
    The house is located in Olympia, Washington.


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47351-8-II


through the chain link fence. He drove straight toward Rude, his wife, and the passerby. The three

witnesses had to jump out of the way of the vehicle to avoid injury.

        After Ollison drove away, Sheriff John Snaza drove towards Miller’s house in response to

the 911 call. Tumwater police saw and began to follow the vehicle. Ollison failed to stop. Snaza

monitored the radio traffic and heard that the vehicle was approaching his location. He activated

his emergency lights and siren and drove in Ollison’s direction. Snaza and other law enforcement

vehicles followed Ollison onto Interstate-5 southbound. Ollison made “erratic lane changes.” 2

RP at 211. Because of the Ollison’s speed and erratic driving on Interstate-5, Snaza remained the

only police vehicle in pursuit. Ollison and Snaza drove at speeds fluctuating between 80 and 125

miles per hour while zig-zagging around cars and driving on the freeway’s shoulder and all lanes

of travel.

        Deputy Steve Hamilton deployed spike strips on the freeway, and Ollison drove over them.

He continued to drive at 90 miles per hour without front tires; only the rims remained. As he

drove, Ollison hit another vehicle and injured the driver. Deputy Ruben Mancillas attempted a

PIT maneuver.3 He pushed the car against a barrier and brought it to a complete stop. Mancillas

ordered Ollison out of the vehicle, but when Ollison did not make an effort to do so, Mancillas

broke the passenger side window and Ollison crawled out. Mancillas placed Ollison under arrest.

Miller’s dog, cell phone, and cash were retrieved from the vehicle.

        The State charged Ollison by second amended information with robbery in the first degree

while armed with a deadly weapon (count I), burglary in the first degree while armed with a deadly

weapon (count II), theft of a motor vehicle (count III), three counts of assault in the second degree



3
 A PIT maneuver, or precision immobilization technique, is a pursuit tactic by which a pursuing
car can force a fleeing car to abruptly turn sideways, causing the driver to lose control and stop.


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47351-8-II


(counts IV, V, VI), attempting to elude a pursuing police vehicle with a special allegation (count

VII), and hit and run attended vehicle (count VIII). The charge of robbery in the first degree while

armed with a deadly weapon4 read as follows:

                  In that the defendant, SHAWN DION OLLISON in the State of
          Washington, on or about August 25, 2014, did unlawfully take personal property
          from a person or in his or her presence, to-wit, Aleta Miller, against such person’s
          will, by use or threatened use of immediate force, violence, or fear of injury to such
          person or their property, or the property of another, with the intent to commit theft
          of the property, and such force or fear having been used to obtain or retain such
          property or to prevent or overcome resistance to the taking, and in the commission
          of or immediate flight therefrom the accused was armed with a deadly weapon or
          displayed what appeared to be a firearm or other deadly weapon. It is further
          alleged that during the commission of this offense the defendant was armed with a
          deadly weapon.

Suppl. CP at 2.

I.        TRIAL

          The State filed a motion in limine for an order that Ollison be restrained with a leg brace

during trial. The State argued that the use of a restraint was warranted because Ollison was a flight

risk and a danger to the public.

          On March 3, 2015, the trial court heard testimony and argument on the motion. Officer

Trevor Davis, a correctional officer was the sole witness. The jail classified Ollison as “maximum”

security because of his charges. 1 RP at 27. Davis described the leg brace proposed for use as the

“least restrictive restraint” that the corrections department had at its disposal. 1 RP at 27. The leg

brace consists of a hinge bar that goes around the side of the leg. It can be adjusted by the defendant

with a latch that allows the hinge to bend. It also includes four straps, three of which are Velcro,

and one leather strap at the ankle which contains a locking mechanism that secures the brace to



4
     The State charged a deadly weapon enhancement under RCW 9.94A.825.


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47351-8-II


the body. The restraint would not cause Ollison pain and would not be visible to the jurors. Two

corrections officers would be required to be in the courtroom at all times because of Ollison’s jail

classification. The brace would not allow Ollison to have a normal gait; it prevented full motion

of steps.

        The trial court granted the State’s motion and required Ollison to wear the brace throughout

trial. The trial court reasoned that the use of the leg brace was appropriate because Ollison’s bail

was set for a significant amount based on the charges and the jail determined Ollison to be at the

“maximum custody level” 1 RP at 40. The trial court also found that the brace was not painful,

Ollison controlled the ability to unlock it, and it was not noticeable under Ollison’s clothing. The

trial court also ensured it would take precautions to make sure the brace would not be noticeable

to the jury if Ollison moved about the courtroom.

        The jury found Ollison not guilty of three counts of assault in the second degree (counts

IV, V, VI) and guilty of all other counts.

II.     SENTENCING

        Ollison filed a sentencing memorandum and argued that robbery in the first degree and

theft of a motor vehicle (counts I and III) constituted the same criminal conduct because they

involved the same victim, Miller. Ollison also argued that the crimes were committed in the same

time and place, and the offenses involved the same criminal intent. The memorandum further

argued that Ollison’s offender scores should be calculated as follows:

 COUNT         SCORE          EXPLANATION
 I             3              2 points for Count II, a violent offense, and 1 point for Count VII
 II            4              2 points for Count I, a violent offense, and 1 point for Count III
 III           2              1 point for Count II and 1 point for Count VII
 VII           4              1 point each for Counts I, II, III, and VIII
 VIII          GM             Gross misdemeanor with sentence of 0-364 days in jail.

CP at 166.


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47351-8-II


       The trial court heard arguments on Ollison’s offender score calculation. The court found

that the offenses of robbery in the first degree and theft of a motor vehicle constituted the same

criminal conduct because “[t]aking the keys essentially was the beginning of the course of conduct

that included taking the motor vehicle.” RP (Mar. 24, 2015) at 23. The State disagreed with

Ollison’s calculation; however, the parties eventually agreed to Ollison’s points.

       The trial court entered the judgment and sentence. The trial court calculated Ollison’s

offender score as the parties agreed, with a score of three for count I, a score of four for count II,

a score of two for count III, and a score of four for count VII. The trial court sentenced Ollison to

108 months of confinement. Ollison appeals.

                                            ANALYSIS

I.     RIGHT TO FAIR TRIAL

       Ollison argues that the trial court violated his right to a fair trial by ordering him to wear a

leg restraint. We disagree.

       A.      Legal Principles

       “It is well settled that a defendant in a criminal case is entitled to appear at trial free from

all bonds or shackles except in extraordinary circumstances.” State v. Finch, 137 Wn.2d 792, 842,

975 P.2d 967 (1999). This rule ensures that “the defendant receives a fair and impartial trial as

guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and article

I, section 22 (amendment 10) of the Washington State Constitution.” Finch, 137 Wn.2d at 843.

       We review a trial court’s decision to shackle, or to restrain the movement of, a defendant

for abuse of discretion. State v. Turner, 143 Wn.2d 715, 724, 23 P.3d 499 (2001). A trial court

abuses its discretion when its decision is based on untenable grounds or untenable reasons. Turner,

143 Wn.2d at 724. “A discretionary decision rests on untenable grounds if it is unsupported by



                                                  6
47351-8-II


the facts in the record.” State v. Walker, 185 Wn. App. 790, 800, 344 P.3d 227, review denied,

183 Wn.2d 1025 (2015).

       “‘It is fundamental that a trial court is vested with the discretion to provide for courtroom

security, in order to ensure the safety of court officers, parties, and the public.’” Turner, 143

Wn.2d at 725 (quoting State v. Hartzog, 96 Wn.2d 383, 396, 635 P.2d 694 (1981)). At the same

time, a criminal defendant is entitled to be free from restraints at trial except under extraordinary

circumstances. State v. E.J.Y., 113 Wn. App. 940, 951, 55 P.3d 673 (2002). Washington courts

have “universally held that restraints should ‘be used only when necessary to prevent injury to

those in the courtroom, to prevent disorderly conduct at trial, or to prevent an escape.’” Finch,

137 Wn.2d at 846 (quoting Hartzog, 96 Wn.2d at 398). Restraints are disfavored because “‘they

may abridge important constitutional rights [such as], the presumption of innocence, the privilege

of testifying on one’s own behalf, and the right to consult with [and assist] counsel during trial.’”

Turner, 143 Wn.2d at 725 (quoting Hartzog, 96 Wn.2d at 398); Finch, 137 Wn.2d at 845. By

keeping the defendant in restraints, the court might deprive him of the full use of all his faculties.

State v. Damon, 144 Wn.2d 686, 691, 25 P.3d 418 (2001).

       Only after conducting a hearing and entering sufficient findings into the record should a

trial court allow the use of restraints. Damon, 144 Wn.2d at 691-92. The court must also consider

less restrictive alternatives. Finch, 137 Wn.2d at 850. The trial court “‘must exercise discretion

in determining the extent to which courtroom security measures are necessary to maintain order

and prevent injury. That discretion must be founded upon a factual basis set forth in the record.’”

E.J.Y., 113 Wn. App. at 951 (quoting Hartzog, 96 Wn.2d at 400). The trial court abuses its

discretion unless the basis for its decision is evidence that indicates the defendant poses an

imminent risk of escape, the defendant intends to injure someone in the courtroom, or the



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47351-8-II


defendant cannot behave in an orderly manner while in the courtroom. Finch, 137 Wn.2d at 850.

“‘A broad general policy of imposing physical restraints . . . because [the defendant] may be

potentially dangerous is a failure to exercise discretion.’” Finch, 137 Wn.2d at 846 (quoting

Hartzog, 96 Wn.2d at 400) (internal quotations omitted).

       B.        The Trial Court Did Not Abuse Its Discretion

           Several factors need to be considered by the trial court when deciding whether a defendant

should be restrained during trial.

       [T]he seriousness of the present charge against the defendant; defendant’s
       temperament and character; his age and physical attributes; his past record; past
       escapes or attempted escapes, and evidence of a present plan to escape; threats to
       harm others or cause a disturbance; self-destructive tendencies; the risk of mob
       violence or of attempted revenge by others; the possibility of rescue by other
       offenders still at large; the size and mood of the audience; the nature and physical
       security of the courtroom; and the adequacy and availability of alternative
       remedies.

State v. Hutchinson, 135 Wn.2d 863, 887-88, 959 P.2d 1061 (1998) (quoting Hartzog, 96 Wn.2d

at 400).

       Here, the trial court heard testimony from Davis. It granted the motion to restrain Ollison

after it considered the seriousness of the charges against Ollison, including a charge that indicated

he presented a flight risk. The trial court also reasoned that the brace was the least restrictive

option available and that it would not be painful or noticeable to the jury. The trial court considered

Ollison’s jail classification and the need to make sure he remained in custody. Therefore, we

conclude that the trial court did not abuse its discretion because it based its decision on tenable

grounds and for tenable reasons.




                                                   8
47351-8-II


II.    OFFENDER SCORE CALCULATION

       Ollison argues that the trial court erred by calculating his offender score for his convictions

of burglary in the first degree and attempting to elude a police vehicle because the trial court added

an extra point based on his conviction of theft of a motor vehicle even though it found that the

theft of a motor vehicle conviction constituted the same criminal conduct as his robbery in the first

degree conviction. The State concedes that the trial court erred and recommends the case be

remanded for resentencing. We agree.

       RCW 9.94A.589(1)(a) provides, “if the court enters a finding that some or all of the current

offenses encompass the same criminal conduct then those current offenses shall be counted as one

crime. Sentences imposed under this subsection shall be served concurrently.” “Same criminal

conduct” is defined by the statute as “two or more crimes that require the same criminal intent, are

committed at the same time and place, and involve the same victim.” RCW 9.94A.589(1)(a). The

trial court found that Ollison’s convictions for robbery in the first degree and theft of a motor

vehicle constituted the same criminal conduct, but counted the crimes separately when it calculated

Ollison’s offender score. Therefore, we remand the case for resentencing.5

III.   INFORMATION CHARGING ROBBERY IN THE FIRST DEGREE

       Ollison argues that the charging document was defective because it failed to allege all of

the essential elements of robbery in the first degree. We disagree.




5
  Ollison argues that he received ineffective assistance of counsel because his attorney failed to
object to the miscalculation of his offender score and even agreed to the calculation. Because we
are remanding this case for resentencing, we need not address Ollison’s ineffective assistance of
counsel claim.


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47351-8-II


       A.      Standard of Review

       An information is constitutionally defective if it fails to list the essential elements of a

crime. State v. Zillyette, 178 Wn.2d 153, 158, 307 P.3d 712 (2013); CrR 2.1(a)(1). The essential

elements of the crime are those “‘that the prosecution must prove to sustain a conviction.’” State

v. Peterson, 168 Wn.2d 763, 772, 230 P.3d 588 (2010) (quoting State v. Fisher, 165 Wn.2d 727,

754, 202 P.3d 937)) (internal quotations omitted). “Requiring the State to list the essential

elements in the information protects the defendant’s right to notice of the nature of the criminal

accusation guaranteed by the Sixth Amendment to the United States Constitution and article I,

section 22 of the Washington State Constitution.” State v. Pittman, 185 Wn. App. 614, 619, 341

P.3d 1024, review denied, 184 Wn.2d 1021 (2015). Due to the constitutional nature of the

challenge to the sufficiency of an information, we review claims that the information omitted

essential elements of a charged crime de novo. Pittman, 185 Wn. App. at 619.

       When an appellant challenges the sufficiency of an information, we must first decide

whether the allegedly missing element is essential. Pittman, 185 Wn. App. at 619. “Charging

documents which are not challenged until after the verdict will be more liberally construed in favor

of validity than those challenged before or during trial.” State v. Kjorsvik, 117 Wn.2d 93, 102,

812 P.2d 86 (1991). We must determine whether “‘the necessary facts appear in any form, or by

fair construction can be found within the terms of the indictment.’” Kjorsvik, 117 Wn.2d at 104

(quoting Hagner v. United States, 285 U.S. 427, 433, 52 S. Ct. 417, 76 L. Ed. 861 (1932)).




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47351-8-II


“Missing elements may be implied if the language supports such a result.” State v. Hopper, 118

Wn.2d 151, 156, 822 P.2d 775 (1992); State v. Miller, 156 Wn.2d 23, 28, 123 P.3d 827 (2005).

Even if we find the missing element is implied, we then determine whether the defendant can

nonetheless show he suffered actual prejudice from the inartful language. Kjorsvik, 117 Wn.2d at

105.

       B.      The Information Was Not Defective

       The State charged Ollison with robbery in the first degree while armed with a deadly

weapon. RCW 9A.56.190 defines robbery in relevant part:

              A person commits robbery when he or she unlawfully takes personal
       property from the person of another or in his or her presence against his or her will
       by the use or threatened use of immediate force, violence, or fear of injury to that
       person or his or her property or the person or property of anyone. Such force or
       fear must be used to obtain or retain possession of the property, or to prevent or
       overcome resistance to the taking; in either of which cases the degree of force is
       immaterial.

       Ollison argues that the information’s language failed to include a non-statutory essential

element, i.e. that the victim had an ownership, representative, or possessory interest in the stolen

property. He argues that by failing to list this element, the information did not apprise him of the

nature of the charge.

       We first determine whether this alleged element is in fact an essential element. Pittman,

185 Wn. App. at 619. In State v. Richie, 191 Wn. App. 916, 924, 365 P.3d 770 (2015), we held

that an implied element of robbery included the victim having an ownership, representative, or

possessory interest in the stolen property. Other cases are in accord. State v. Tvedt, 153 Wn.2d

705, 714, 107 P.3d 728 (2005); State v. Latham, 35 Wn. App. 862, 670 P.2d 689 (1983); State v.

Hall, 54 Wn. 142, 102 P. 888 (1909).




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47351-8-II


        Because of this conclusion, we next determine whether “‘the necessary facts appear in any

form, or by fair construction’” in the information. Kjorsvik, 117 Wn.2d at 104 (quoting Hagner,

285 U.S. at 433). Here, the State listed the name of the property owner in the information.

Washington courts have concluded that similar language puts a defendant on notice of the charges

against him. Tvedt, 153 Wn.2d at 719; Kjorsvik, 117 Wn.2d at 111. In reading the information, it

is clear that the property alleged to be stolen by Ollison was Miller’s property. In liberally

construing the document, we conclude that the language reasonably apprised Ollison that the State

alleged he unlawfully took property away from Miller in which she had an ownership,

representative, or possessory interest. Therefore, the information adequately apprised Ollison of

the charge against him.

        Finally, we conclude that because Ollison did not argue that he suffered prejudice, his claim

fails. See Kjorsvik, 117 Wn.2d at 105. In deciding this issue, we also note that Ollison neither

raised this issue before the trial court, nor requested a bill of particulars. If an information lists all

statutory elements but is vague regarding another matter significant to the defense, a defendant

should request a bill of particulars to correct that defect. State v. Holt, 104 Wn.2d 315, 320, 704

P.2d 1189 (1985). A defendant cannot challenge the information on appeal if he failed to request

a bill of particulars. Holt, 104 Wn.2d at 320. For the foregoing reasons, Ollison’s claim fails.

        We affirm the convictions, but remand the case for resentencing because of the error in

Ollison’s offender score calculation.




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47351-8-II


       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.




                                                         Melnick, J.

We concur:




       Lee, P.J.




       Sutton, J.




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