                                                                                                              FILED
                                                                                               COURT Or APPEALS
                                                                                                        1)[
                                                                                                    VIISION 11

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                                                                                               By ' .
                                                                                                                      Y




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II



STATE OF WASHINGTON,
                                   Respondent,                            No. 43219 -6 -II


          V.                                                          PUBLISHED OPINION


GARY LEE LINDSEY, JR.,
                                    Appellant.




          MAXA, J. —   Gary Lee Lindsey, Jr., appeals his conviction for trafficking in stolen property

under    RCW 9A.82. 050( 1).      He argues that this statute identifies eight alternative means of


committing the crime, and based on this alternative means argument claims that ( 1) the charging
                                          i


document was factually deficient because it did not state facts supporting each alternative means,

2) he was denied a fair trial because the trial court instructed the jury on an uncharged

alternative means of committing the offense, and ( 3) he was denied his constitutional right to an

unanimous verdict because there was insufficient evidence to support conviction on several of


the alternative means. Lindsey also argues that the trial court improperly refused to appoint new

counsel when conflicts arose with his trial counsel, thereby violating his constitutional right to

counsel.




          We hold that RCW 9A.82. 050( 1) identifies only two alternative means, and on that basis

                                  regarding the information                       of   the   evidence.        We do   not
reject   Lindsey' s   arguments                               and   sufficiency
No. 43219 -6 -II


consider Lindsey' s challenge to the jury instruction because he did not object below. We also

hold that the trial court did not abuse its discretion in refusing to appoint new counsel. We

affirm.



                                                          FACTS


Charged Crime


          Earl Teel had possession of a large, 470 -pound stainless steel tank that he hoped to sell

on Craigslist. Teel placed the tank near a scrap bin where he deposited recyclable metals

disposed of in his business.


          On July 6, 2011, Teel observed a pickup truck drive onto his business property and then

saw   the driver —Lindsey        —start looking through the scrap bin. Teel approached and asked

Lindsey what he was doing, and Lindsey responded that he needed some cables to pull a log over

an embankment for his firewood business. Teel told him to take the cables but not to return or

take anything else without permission.

          On July 10, Teel discovered that the tank was gone. Teel immediately called the police.

The next morning Cowlitz County Deputy Sheriff Lorenzo Gladson went to GT Metals and

Salvage and asked the owner to keep an eye out for anyone trying to scrap a stainless steel tank.

One of GT Metals' employees later reported that someone was trying to scrap the lid to a

stainless steel tank and would be returning with the rest of the tank. Gladson waited until

Lindsey arrived with the tank and arrested him.

           Gladson asked Lindsey how he got the tank. Lindsey responded that he had purchased it

from someone known to him as a thief and that he knew the tank was stolen. Later, while sitting

in the   patrol car      waiting for Teel to   arrive,   Lindsey   remarked, " `   I might as well be honest with


you.     I took it.' "    Report of Proceedings ( RP) at 82. After matching the serial numbers on the

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No. 43219 -6 -II



tank with those Teel had given him earlier, Gladson showed Teel a photograph of Lindsey. Teel

identified Lindsey as the same man who had been at his business going through his scrap bin.

             The State   charged        Lindsey   with   first degree trafficking in   stolen   property.'   The amended


information charged the following:

                 TRAFFICKING IN STOLEN PROPERTY IN THE FIRST DEGREE
                 The defendant, in the County of Cowlitz, State of Washington, on, about or
             between July 08, 2011, and July 11, 2011, did knowingly organize, plan, finance,
             direct,   manage      and /or supervise      the theft of property, to -
                                                                                    wit:        steel tank and /or

             cover, for sale to others, or did knowingly traffic in stolen property, to wit: steel
             tank    and /
                         or   cover,     contrary to RCW 9A. 82. 050( 1)         and against the peace and

             dignity of the State of Washington.

Clerk'   s   Papers ( CP)     at   1.   This amended information omitted the word " initiate" before


 organize ",        which is contained in the statutory language.

Conflict with Counsel


             At three separate hearings before trial, the issue arose as to whether Lindsey and his

appointed counsel had a conflict entitling Lindsey to a change of attorney. The trial court held a

hearing on November 2, 2011, because of Lindsey' s concerns. At.that hearing, Lindsey

expressly waived counsel' s conflict of interest.

             On November 30, Lindsey asked for a new attorney, asserting that his counsel was not

doing enough to get the charges"reduced and that his counsel was not helping him. The trial

court denied his request. On December 8, Lindsey again requested new counsel, explaining that

poor communication and lack of trust undermined his attorney -client relationship. Defense

counsel explained that they had engaged in heated arguments over getting a lesser charge from




1 The amended information also charged Lindsey with third degree driving while license
suspended or revoked but the trial court dismissed this charge before trial.
                                                                  3
No. 43219 -6 -II



the prosecutor, but that these arguments would not keep him from representing Lindsey fairly.

The trial court again denied the motion. The issue did not arise again.

Trial


        At trial, the trial gave the following "to convict" instruction to the jury:

                To convict the defendant of the crime of Trafficking in Stolen Property in
        the First Degree, each of the following elements of the crime must be proved
        beyond a reasonable doubt:
                   1)         That on, about, or between July 8 and July 11, 2011, the defendant
                              knowingly:
                               a)    initiated, organized, planned, financed, directed, managed,
                                     and / or supervised the theft of property for sale to others;
                                     or

                               b)    trafficked in stolen property with the knowledge that the
                                     property was stolen; and
                   2)         That this act occurred in the State of Washington.


Suppl. CP at 48. The instruction included the word " initiated" that had been omitted from the

amended information. Lindsey did not object to this instruction.

        The jury returned a guilty verdict. At the sentencing hearing, Lindsey mentioned his
counsel when   responding to the trial      court' s questions,   saying, "   He' s [ defense counsel] doing

good.   Don' t get      me   wrong." RP at 188.


                                             ANALYSIS


A.      ALTERNATIVE MEANS ARGUMENTS


         Lindsey argues that RCW 9A.82. 050( 1) identifies eight alternative means of committing

the crime of first degree trafficking in stolen property. Three of his, assignments of error are

based on this argument. We disagree with this interpretation of RCW 9A.82. 050( 1).

         RCW 9A.82. 050 defines first degree trafficking in stolen property:

                1) A person who knowingly initiates, organizes, plans, finances, directs,
         manages, or supervises the theft of property for sale to others, or who knowingly


                                                        11
No. 43219 -6 -II



         traffics in stolen property, is guilty of trafficking in stolen property in the first
         degree.
                    2) Trafficking in stolen property in the first degree is a class B felony.

Lindsey claims that this statute identifies eight alternative means for committing the crime:

knowingly ( 1) initiating, ( 2)         organizing, ( 3) planning, ( 4)     financing, ( 5) directing, ( 6) managing

and ( 7) supervising the theft of property for sale to others, and ( 8) knowingly trafficking in stolen

property. The State           contends   that there   are   two   alternative means: (   1) knowingly initiating,

organizing, planning, financing, directing, managing or supervising the theft of property for sale

to others; and ( 2) knowingly trafficking in stolen property.

           An `alternative means crime' is one ` that provide[ s] that the proscribed criminal conduct


may be     proved   in   a   variety   of ways.' "    State v. Peterson, 168 Wn.2d 763, 769, 230 P. 3d 588


 2010) (   alteration    in   original) (   quoting State v. Smith, 159 Wn.2d 778, 784, 154 P. 3d 873

 2007)). Because the legislature has not defined what constitutes an alternative means crime,


whether a statute provides an alternate means for committing a particular crime is left to judicial

determination. Peterson, 168 Wn.2d at 769. However, there is no bright -
                                                                       line rule for making

this determination and each case must be evaluated on its own merits. Peterson, 168 Wn.2d at

769.


         Washington cases suggest some guidelines for analyzing the alternative means issue.

Merely stating methods of committing a crime in the disjunctive does not mean that there are

alternative means of committing a crime. Peterson, 168 Wn.2d at 770. Definitional statutes do

not create additional alternative means for a crime. Smith, 159 Wn.2d at 785. And a statute


divided into subparts is more likely to be found to designate alternative means. See State v. Al-

Hamdani, 109 Wn.              App.   599, 607, 36 P. 3d 1103 ( 2001) (      distinguishing statutes for alternative

means purposes because they separate means by subparts).

                                                                  6
No. 43219 -6 -II



         Reviewing RCW 9A.82. 050( 1) as a whole convinces us that the legislature intended two

alternative means of committing the crime of trafficking in stolen property rather than eight.

First, the placement and repetition of the word " knowingly" suggests that the legislature intended

two means. The first "knowingly" clearly relates to all seven terms in the first part of the statute

   initiates,   organizes, plans,    finances, directs,   manages, or supervises" —       as a group. If each

word was interpreted as standing on its own, the knowing requirement would apply only to

 initiates ".   Similarly, the phrase " the theft of property for sale to others" relates to the entire

group.   Treating these terms as a group indicates that they represent multiple facets of a single

means of committing the crime. And use of the word " knowingly" a second time before the

phrase " trafficking in stolen property" indicates that this is a separate means set apart from the

other group. If the statute described eight means, there would be no need to use the word

knowingly again.

         Second    and   similarly, the     statute repeats   the   word " who'.   The statute thus contains two


parts with each using " who' as a subject and separated with a disjunctive, making two

independent clauses. Each clause describes distinct means of committing the offense. If the

statute described eight means there would be no need to use the word " who' again.

         Third, the first group of seven terms relate to different aspects of a single category of

criminal conduct —       facilitating or participating in the theft of property so that it can be sold. As a

result, these terms appear to be definitional. They are examples of such facilitation or

participation. As noted above, definitional statutes do not create multiple alternative means for a

crime.   Smith, 159 Wn.2d       at   785.    And trafficking in stolen property involves a second, separate

category —transferring       possession. of property      known to be      stolen —  defined separately in RCW

9A.82. 010( 19).


                                                              0
No. 43219 -6 -II



          Finally, although RCW 9A.82. 050( 1) is not formally divided into subparts, the statutory

language easily divides into two                 sections   describing   two different   offenders:   a person who




knowingly       facilitates   or participates ( "     initiates, organizes, plans, finances, directs, manages, or


supervises ")     the theft of property for sale to others, and a person who knowingly transfers

possession ( "traffics       ")   of stolen property. If the legislature had designated the two sections of the

statute as subparagraphs ( a) and ( b), there would be no question that it was describing only two

alternative means. But even in the absence of such a designation, the paragraph structure


compels the conclusion that the statute describes only two means.

          Our holding is consistent with Peterson, where the court held that the failure to register as

a sex offender statute proscribed a single act, not distinct acts, and therefore was not an

alternative means crime.             168 Wn.2d 770. The court contrasted this with the theft statute, which


proscribes      distinct   acts   constituting theft. Peterson, 168 Wn.2d 770.              Similarly, in State v. Laico,

97 Wn.        App. 759,    762, 987 P. 2d 638 ( 1999), the court held that the three definitions of "great


bodily harm" for first degree assault did not create three alternative means for committing the

offense. Accordingly, jury unanimity with regard to the existence of great bodily harm did not

require unanimity as to the type of great bodily harm. Laico, 97 Wn. App. at 762.

          Lindsey    relies on      State   v.   Strohm, 75 Wn.        App.   301, 879 P. 2d 962 ( 1994), where Division


One of this court addressed alternative means in the context of former RCW 9A. 82. 050( 2)

          2
    1984) .    But the issue in that case was not the number of alternative means described in former

RCW 9A.82. 050( 2). Instead, Strohm                   argued    that former RCW 9A. 82. 010( 10) ( 1994),     which




2
    Former RCW 9A.82. 050( 2) was the statute in effect in 1994. The statute was recodified as
RCW 9A. 82. 050( 1) in 2003.
                                                                   7
No. 43219 -6 -II


                     3
defined " traffic ",     listed several alternative means of trafficking in stolen property in addition to

the   means stated   in former RCW 9A. 82. 050( 2).          Strohm, 75 Wn. App. at 307 -08. Division One

rejected this argument, reasoning that definitional statutes do not create alternative means of

committing an offense. Strohm, 75 Wn. App. at 308 -09. The court explained that this is because

the legislature was defining an element of the offense, not creating alternate elements. Strohm,

75 Wn. App. at 308 ( citing State v. Garvin, 28 Wn. App. 82, 85, 621 P.2d 215 ( 1980)).

         At the beginning' of its discussion, Division One stated without analysis or comment that

former RCW 9A.82. 050( 2) had eight alternative means. Strohm, 75 Wn. App. at 307. After

rejecting the Strohm' s argument that the definition of "traffic" contained additional alternative

means, the court concluded that sufficient evidence supported a conviction on each of the eight


means.    Strohm, 75 Wn.       App.   at   309.   Years later, Division One repeated without analysis its

statement in Strohm that RCW 9A.82. 050 identifies eight alternative means. State v. Hayes, 164

Wn.    App.   459, 476, 262 P. 3d 538 ( 2011).       However, the issue of whether RCW 9A. 82. 050


identifies two or eight alternative means was not before the court in either Strohm or Hayes. And


the court did not actually discuss in either case the alternative means issue with respect to RCW

9A.82. 050.


         Based on our analysis of the statutory language discussed above, we decline to follow the

dicta in Strohm. We conclude that there are two means of committing first degree trafficking in




3
    Former RCW 9A. 82. 010( 10) (          now codified at   RCW 9A. 82. 010( 19))   provided:

           Traffic" means to sell, transfer, distribute, dispense, or otherwise dispose of
          stolen property to another person, or to buy, receive, possess, or obtain control of
          stolen property, with intent to sell, transfer, distribute, dispense, or otherwise
          dispose   of   the property to    another person.
No. 43219 -6 -II


stolen    property: (            1) facilitating the theft of property so that it can be sold and ( 2) facilitating the

sale of property known to be stolen. We now turn to Lindsey' s specific arguments.

           1. '       Sufficiency of the Information

           Lindsey claims that the amended information did not properly apprise him of the factual

basis for the charges, depriving him of his constitutional right to notice. Specifically, he argues

that the information set out eight alternative means of committing first degree trafficking in

stolen property and the information did not provide sufficient facts to ascertain what alleged

conduct constituted the offense. We disagree.


           Article I,            section   22   of   the Washington Constitution        provides   in   part, " In   criminal


prosecutions           the   accused shall           have the   right ...   to demand the nature and cause of the


accusation against                him." The Sixth Amendment to the United States Constitution provides in


part, "   In      all ...   prosecutions,        the   accused shall ...        be informed of the nature and cause of the


accusation."            CrR 2. 1( a)( 1) provides in part that " the information shall be a plain, concise and


definite written statement of the essential facts constituting the offense charged."

           Lindsey did not object to the sufficiency of the information or request a bill of particulars

below. However, a challenge to the constitutional sufficiency of a charging document may be

raised for the first time on appeal. State v. Kjorsvik, 117 W11.2d 93, 102, 812 P. 2d 86 ( 1991).


We review challenges to the sufficiency of a charging document de novo. State v. Williams, 162

Wn.2d 177, 182, 170 P. 3d 30 ( 2007).                       But where the defendant challenges the sufficiency of an

information for the first time on appeal, this court construes the document liberally in favor of

validity. State             v.   Brown, 169 Wn.2d 195, 197, 234 P. 3d 212 ( 2010). Under this liberal


construction rule, we will uphold the charging document if an apparently missing element may

be " fairly implied" from the language within the document. Kjorsvik, 117 Wn.2d at 104. The

                                                                            9
No. 43219 -6 -II


testis: "(    1) do the necessary facts appear in any form, or by fair construction can they be found,

in the charging document;             and,   if   so, (   2) can the defendant show that he was nonetheless actually

prejudiced        by the   inartful language           which caused a        lack   of notice ?"     Kjorsvik, 117 Wn.2d at 105-


06.


          Under the " essential elements" rule, a charging document must allege facts supporting

every element of the offense in addition to adequately identifying the crime charged. State v.

Leach, 113 Wn.2d 679, 689, 782 P. 2d 552 ( 1989). " It is sufficient to charge in the language of a


statute   if it defines the     offense with           certainty." State v. Elliott, 114 Wn.2d 6, 13, 785 P. 2d 440


 1990) ( citing Leach, 113 Wn.2d                  at   686).    The primary goal of the essential elements rule is to

give notice to an accused of the nature of the crime that he must be prepared to defend against.

Kjorsvik, 117 Wn.2d            at   101 ( citing 2 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 19. 2, at


446 ( 1984); 1 C. WRIGHT, FEDERAL PRACTICE § 125,                              at   365 ( 2d   ed.   1982)).   All essential


elements of the crime charged, including nonstatutory elements, must be included in the charging

document so that a defense can be properly prepared. Kjorsvik, 117 Wn.2d at 101 -02.
                                                                                        3 )

          In State    v.   Winings, 126 Wn.             App.    75, 84- 85, 107 P. d 141 ( 2005), the State charged


Winings with second degree assault while armed with a deadly weapon but failed to identify the

victim, the weapon used, or how Winings used the weapon. We held that the information,

although vague, was constitutionally sufficient because it alleged assault of another with a deadly

weapon       in   violation of      RCW 9A.36. 021             and   it included the    assault' s    date   and   location. Winings,


126 Wn. App. at 86.

             Here, the information alleged that Lindsey knowingly facilitated in the theft of property

for   sale   to   others and   trafficked    in    stolen      property in    violation of     RCW 9A. 82. 05 0( l), quotes the


statute, identifies the stolen property, and alleges the applicable dates and county of the crime.

                                                                        10
No. 43219 -6 -II



Great specificity is    not required,   only   sufficient   facts for   each element.   Winings, 126 Wn. App.

at   85.   These details in the information, read liberally and in a common sense manner, were

sufficient to give notice to Lindsey regarding the nature of the charges.

            Lindsey seems to argue that because the statute provides eight alternative means for

committing the crime, the information was required to provide specific facts supporting each of

eight means. We disagree. As we have just held, RCW 9A.82. 050( 1) describes only two

alternative means of committing trafficking in stolen property, and the information here provided

Lindsey with sufficient detail for both means.

            Ordinarily, we next would consider whether the defendant was, nonetheless, prejudiced

by the " inartful language" of the information. Kjorsvik, 117 Wn.2d at 106. But Lindsey does

not argue prejudice. Because he has the burden of raising and demonstrating prejudice, we

decline to further consider the issue. See generally Kjorsvik, 117 Wn.2d at 106.

            We hold that the information was constitutionally sufficient to provide Lindsey notice of

the charge against him.


            2.   Instruction on Uncharged Alternative


            The amended information did not include " initiated" as a means of committing

trafficking in stolen property, but the " to convict" instruction did. Lindsey argues that

instructing the jury on this uncharged alternative was error requiring reversal of his conviction.

However, we need not address this argument because Lindsey failed to object to the instruction

at trial.


            The Sixth Amendment to the U.S. Constitution and article I, section 22 of the


Washington Constitution require that an accused be informed of the charges he /she must face at

trial.     Accordingly, when an information alleges certain alternative means of committing an

                                                            11
No. 43219 -6 -II



offense, it is error to instruct the jury on uncharged means allowable under the criminal statute.

State v. Brewczynski, 173 Wn. App. 541, 549, 294 P. 3d 825, review denied, 177 Wn.2d 1026

 2013).   This is because " `[     o] ne cannot   be tried for   an uncharged offense.' "            State v. Chino, 117


Wn.            531, 540, 72 P. 3d 256 ( 2003) ( quoting State               Bray, 52   Wn.   App.   30, 34,    P. 2d
      App.                                                             v.




1332 ( 1988)).     But the error can be harmless if other instructions define the crime in a manner

that leaves only the     charged alternative      before the jury.          Brewczynski, 173 Wn. App. at 549.

          However, Lindsey did not object to the to- convict instruction at trial and raises this issue

for the first time    on appeal.   RAP 2. 5(   a) states   that "[   t]he appellate court may refuse to review

      claim of error which was not raised         in the trial   court."      The purpose behind this rule is to
any


encourage the efficient use ofjudicial resources by ensuring that the trial court has the

opportunity to correct any errors, thereby avoiding unnecessary appeals. State v. Robinson, 171

Wn.2d 292, 304 -05, 253 P. 3d 84 ( 2011).           RAP 2. 5( a)( 3) further states that a party may raise

particular types of errors for the first time on appeal, including " manifest errors affecting a

constitutional right ".    But Lindsey fails to argue that any of the exceptions listed in RAP 2. 5( a)

apply. Therefore, we do not address his claim regarding inclusion of an uncharged alternative in
the to- convict instruction.


          3.     Right to Unanimous Verdict


          Lindsey argues that the State failed to present evidence that he violated all eight charged

means of committing his offense, which violated his right to a unanimous verdict in the absence

of a special verdict. In particular, he argues that there was no evidence that he organized,

directed, managed, supervised, or financed the theft of property for sale to others. Based on our

holding above that there are only two alternative means for committing the crime of trafficking

in stolen property, we reject Lindsey' s argument.

                                                            12
No. 43219 -6 -II



             Article I, section 21 of the Washington Constitution guarantees criminal defendants the

right   to   a unanimous      jury   verdict. "   In certain situations, the right to a unanimous jury trial also

includes the right to express jury unanimity on the means by which the defendant is found to

have    committed       the   crime."    State v. Ortega -
                                                         Martinez, 124 Wn.2d 702, 707, 881 P. 2d 231 ( 1994)

 emphasis       in   original) ( citing   State   v.   Green, 94 Wn.2d 216, 616 P. 2d 628 ( 1980)).        When


sufficient evidence exists to support each alternative means submitted to the jury, a jury

expression of unanimity is unnecessary because we infer that the jury was unanimous as to the

means. Ortega -
              Martinez, 124 Wn.2d at 707 -08 ( citing State v. Whitney, 108 Wn.2d 506, 739

P. 2d 1150 ( 1987)).


             Although first degree trafficking in stolen property is an alternative means crime, it

proscribes only two alternatives rather than eight. Lindsey concedes that there is evidence to

support at      least three    of the   definitions listed in the first   part of   RCW 9A. 82. 050( 1),   and we



observe that substantial evidence supports the second part of the subsection. Accordingly, we

hold that Lindsey' s argument regarding unanimity fails.

B.           RIGHT TO CHANGE OF COUNSEL


             Lindsey argues that the trial court abused its discretion in denying his repeated requests

for new counsel, violating his Sixth and Fourteenth Amendment right to counsel. He argues that

the trial court should have conducted a more thorough investigation, especially when it appeared

that the attorney -
                  client relationship had deteriorated to the point where the two could not work

together. We disagree.


             We review a trial court' s refusal to appoint new counsel for an abuse of discretion. State

v.   Cross, 156 Wn.2d 580, 607, 132 P. 2d 80 ( 2006). " There is an abuse of discretion when the


trial court' s decision is manifestly unreasonable or based upon untenable grounds or reasons."

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No. 43219 -6 -II



State   v.   Brown, 132 Wn.2d 529, 572, 940 P. 2d 546 ( 1997). " A decision is based ` on untenable


grounds' or made ` for untenable reasons' if it rests on facts unsupported in the record or was

reached      by   applying the wrong legal        standard."     State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d


638 ( 2003) ( internal    quotation marks omitted) (           quoting State v. Rundquist, 79 Wn. App. 786,

793, 905 P. 2d 922 ( 1995)).      In assessing the trial court' s decision, we look at ( 1) the extent of the

conflict between attorney and client, (2) the adequacy of the trial court' s inquiry into that

conflict, and ( 3)    the timeliness   of   the   motion   for   appointment of new counsel.   Cross, 156 Wn.2d


at 607.


             As noted above, on three separate occasions the trial court addressed Lindsey' s requests

for new counsel. At the first hearing, Lindsey waived his claim that a conflict of interest existed.

At the second hearing, Lindsey felt that his attorney was not doing enough to help him with his

mental health issues and in getting the State to reduce the charges. And at the third hearing, one

day before trial, Lindsey complained that the two had a communication problem, they had yelled

at each other, and Lindsey had hung up the telephone on counsel. Defense counsel assured the

trial court that he did not believe that these communication issues would prevent him from

competently representing Lindsey or that they would cause him to compromise his

representation.




             Under the Cross factors, Lindsey has failed to show that the trial court abused its

discretion. First, although there appeared to be some friction between Lindsey and his counsel,

the conflict did not appear too serious. At the first hearing, Lindsey waived his claim that a

conflict of interest existed. At the second hearing, Lindsey felt that his attorney was not doing

enough to help him but did not articulate a specific basis for withdrawal. And Lindsey' s reasons

for wanting a change of counsel seemed to change as the time for trial neared, suggesting that
                                                                 14
No. 43219 -6 -II



they were fleeting requests not based on a tangible conflict. Second, the trial court held three
hearings in which it inquired about the possible conflict. At the third hearing, the trial court

expressly considered whether defense counsel was prepared for trial and the extent of the

communications breakdown. Only when defense counsel provided assurance that he could

provide competent representation did the trial court deny the motion. Finally, it is worth noting

that Lindsey did not raise any concerns about a conflict with counsel during trial or after the jury

returned a guilty verdict. In fact, at his sentencing he expressed satisfaction with counsel.

        We hold that the trial court did not abuse its discretion in denying Lindsey' s requests to

appoint new trial counsel.


        We affirm.




                                                    MAXA, J.




WOISWICK, C. J.




                                                  15
