 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                                     No. 69077-9-1
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                            Respondent,                  DIVISION ONE                       _    ^
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                  v.                                     UNPUBLISHED OPINION                r*   ^n
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SHANE ALLEN SKJOLD,                                                                         en   "-"1
                                                         FILED: October 14, 2013
                            Appellant.


       Grosse, J. — The statutory definition of "restrain" is not an essential

element of the crime of unlawful imprisonment and failure to include the statutory

definition   in        an   information   does   not   render   the   information   deficient.

Accordingly, the information in this case was not deficient. Further, the evidence

was sufficient to convict the appellant of first degree burglary, and the issues he

raises in his statement of additional grounds are without merit.                    For these

reasons, we affirm.

                                             FACTS


       On December 2, 2011, at around 2:00 a.m., Richard Romero, Jr. was

awakened from his sleep by a pounding on his apartment door. Romero was the

maintenance person at the apartment complex and thought the knock was by a

tenant who was having an emergency, so he walked into the living room,

unlocked the door, and opened it. When Romero opened the door, appellant

Shane Skjold walked into the living room, grabbed Romero by the throat, pushed

him to the ground, pulled out a knife from underneath his sweatshirt, and

repeatedly asked Romero "where his stuff was." Skjold kneeled over Romero
No. 69077-9-1 / 2


and waved the knife in front of him. While this was happening, Romero's 9-year-

old son was sitting in a chair in the living room and started crying. Romero was

very scared and did not know what Skjold was talking about.

         Romero managed to get up, and Skjold told him they needed to go to

Skjold's apartment because there was "stuff* missing from his apartment. Before

they left, Skjold asked Romero to give him the key to his (Skjold's) apartment.

Romero gave Skjold the key and the two men went to Skjold's apartment.

         Inside Skjold's bedroom, Skjold was upset and said that somebody had

taken something from his closet. He started throwing drawers. He told Romero,

"It's gone. It's gone." Skjold accused Romero of taking whatever he was talking

about.    Romero tried to calm Skjold down and convince him that he had not

taken anything from his apartment. Skjold, who had been pacing in the bedroom,

got quiet, bent over as if he was going to pick something up, stood up, and hit

Romero on the side of his face. The punch completely collapsed most of the

bones on the left side of Romero's face and caused eight separate fractures.

         After the punch, Romero, who was bleeding profusely from the face, felt

"trapped" and told Skjold he would not say anything about the incident. Skjold

told Romero he could leave, and Romero returned to his apartment.

         The next morning, Romero called his father, who drove him to the

hospital. Romero told his father what had happened to him the previous night.

At first, Romero told the hospital personnel that he had slipped, but when they

expressed disbelief that a slip could result in such serious injuries, he said he

had been assaulted.      From the hospital, Romero and his father went to the
No. 69077-9-1 / 3


father's house; from there, Romero's mother drove him to the police station,

where he gave a statement.

      The State charged Skjold with first degree burglary with a deadly weapon

enhancement, second degree assault with a deadly weapon enhancement, and

unlawful imprisonment.     A jury found Skjold guilty as charged.          The court

sentenced Skjold to an exceptional sentence of 229 months because, due to

Skjold's high offender score, a standard range sentence would have allowed

some crimes to go unpunished. Skjold appeals.

                                    ANALYSIS

Sufficiency of the Charging Document - Unlawful Imprisonment

       Skjold argues his conviction of unlawful imprisonment must be reversed

on the ground that the count of the information charging him with that crime is

deficient because it does not contain the four components of "restrain."

       "A person is guilty of unlawful imprisonment if he or she knowingly

restrains another person."1    "Restrain" for purposes of the crime of unlawful
imprisonment is defined as

       to restrict a person's movements without consent and without legal
       authority in a manner which interferes substantially with his or her
       liberty. Restraint is "without consent" if it is accomplished by (a)
       physical force, intimidation, or deception, or (b) any means
       including acquiescence of the victim, if he or she is a child less than
       sixteen years old or an incompetent person and if the parent,
       guardian, or other person or institution having lawful control or
       custody of him or her has not acquiesced.[2]




1 RCW9A.40.040(1)
2RCW9A.40.010(6).
No. 69077-9-1/4



      Skjold argues the information is deficient because it omits essential

elements of the offense, namely that he knowingly restricted another's

movements, without that person's consent, without legal authority, and in a

manner that substantially interfered with that person's liberty. We rejected this

argument in State v. Phuong, holding that the statutory definition of "restrain" is

not an essential element of the crime of unlawful imprisonment and that failure to

include the statutory definition in an information does not render the information

deficient.3 The charging document here is sufficient.
Sufficiency of the Evidence - First Degree Burglary

             A person is guilty of burglary in the first degree if, with intent
      to commit a crime against a person or property therein, he or she
      enters or remains unlawfully in a building and if, in entering or while
      in the building or in immediate flight therefrom, the actor or another
      participant in the crime (a) is armed with a deadly weapon, or (b)
      assaults any person.t4]
A person "enters or remains unlawfully" in or upon premises, for purposes of the

first degree burglary statute, "when he or she is not then licensed, invited, or

otherwise privileged to so enter or remain."5
       Skjold argues that the evidence is insufficient to convict him of first degree

burglary because there is no evidence that he entered or remained unlawfully in

Romero's apartment. We disagree.

      Evidence is sufficient to support a conviction if, after viewing the
      evidence in the light most favorable to the State, any rational trier of
      fact could have found guilt beyond a reasonable doubt. A claim of
      insufficiency admits the truth of the State's evidence and all
      inferences that reasonably can be drawn therefrom. We defer to


3 174 Wn. App. 494, 502, 299 P.3d 37 (2013).
4RCW9A.52.020(1).
5RCW9A.52.010(5).
No. 69077-9-1 / 5


       the trier of fact on issues of conflicting testimony, credibility of
       witnesses, and the persuasiveness of the evidence.®
       Contrary to Skjold's argument, there is no evidence that Romero invited

Skjold into his apartment. Rather, the evidence shows that when Romero heard

the pounding on the door to his apartment, he opened it to see if it was a tenant

having an emergency. When Romero opened the door, Skjold walked into the

apartment, grabbed Romero by the throat, pushed him to the ground, and pulled

a knife. According to Romero, very little time passed as these events unfolded

and Romero "pretty much went right down on the ground." We find no evidence

to support Skjold's contention that he was invited into Romero's apartment. The

evidence, viewed in a light most favorable to the State, was sufficient to support

Skjold's conviction of first degree burglary.

Statement of Additional Grounds

       1.     Deadly Weapon Enhancement

       In his statement of additional grounds (SAG), Skjold argues that the

deadly weapon enhancements were not proper because the blade of the knife he

wielded during the events was two and a half inches long. He argues that an

enhancement is proper only if the blade is three inches long or longer. Skjold is

incorrect. The statutes on which Skjold relies pertain to indeterminate sentences

and crimes committed before July 1, 1984. These statutes are not relevant here.

For purposes of a deadly weapon special verdict, a "deadly weapon" "is an

implement or instrument which has the capacity to inflict death and from the



6 State v. Cordero. 170 Wn. App. 351, 361, 284 P.3d 773 (2012) (internal
quotation marks and citations omitted).
No. 69077-9-1 / 6


manner in which it is used, is likely to produce or may easily and readily produce

death."7 The knife Skjold pulled on Romero falls within this definition. The fact

that the blade of the knife Skjold pulled on Romero was less than three inches in

length does not change our conclusion. Knives with blades longer than three

inches are included in the statutory list of instruments included in the term

"deadly weapon," but that list is not exclusive.8
       2.     Ineffective Assistance of Counsel

       To succeed on an ineffective assistance of counsel claim, a defendant

must show that (1) counsel's conduct was deficient; and (2) the defendant was

prejudiced as a result.9     Deficient performance is that which falls below an
objective standard of reasonableness.10 To demonstrate prejudice, a defendant
must show that, but for the deficient performance, there is a reasonable

probability that the outcome of the trial would have been different.11      If the
ineffective assistance claim fails on one prong, we need not address the other

prong.12
       We presume that counsel's representation of his or her client was

reasonable and are highly deferential to counsel's decisions.13 Strategic and
tactical decisions are not grounds for error.14


7 RCW 9.94A.825.
8 See State v. Samanieoo. 76 Wn. App. 76, 81, 882 P.2d 195 (1994).
9 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L Ed. 2d 674
(1984).
™In re Pet, of Moore. 167Wn.2d113, 122, 216 P.3d 1015 (2009).
11 In re Matter of Pirtle. 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
12 State v. Staten. 60 Wn. App. 163, 171,802P.2d 1384(1991).
13 Strickland. 466 U.S. at 689-91.
14 Strickland. 466 U.S. at 689-91.
No. 69077-9-1 / 7


               A.    Trial Counsel

        Skjold argues his trial counsel was ineffective because he failed to object

to the trial court's allowance of testimonial hearsay statements. The testimony to

which Skjold refers is a police officer's testimony about statements Skjold's

girlfriend made to the police when the police arrived at her and Skjold's

apartment in response to a 911 call from neighbors reporting a domestic dispute

and testimony from the neighbor about what he heard the girlfriend saying. The

testimony was that the girlfriend was screaming loudly, "Please don't hurt me,

he's trying to hurt me, he's trying to kill me" and that she was fighting with

another person (who turned out to be Skjold) about money.

        "The decision of when or whether to object is a classic example of trial

tactics. Only in egregious circumstances, on testimony central to the State's

case, will the failure to object constitute incompetence of counsel justifying

reversal."15 Here, the statements of which Skjold complains were not central to

the State's case. Further, it is likely that defense counsel did not object to avoid

drawing unnecessary attention to the statement. This decision was a valid trial

tactic. Even if, however, counsel's performance was deficient for failing to object,

Skjold has not demonstrated that, but for the deficient performance, the outcome

of the trial would have been different.

               B.     Appellate Counsel

         In order to establish ineffective assistance of appellate counsel, the

defendant must show that the legal issue appellate counsel failed to raise had


15
     State v. Madison. 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
No. 69077-9-1 / 8


merit and that the defendant was actually prejudiced by the failure to raise or

adequately raise the issue.16 Skjold has failed to do so.
       Skjold argues his appellate counsel was ineffective for not arranging for

the transcription of the opening statements, voir dire, and the court's reading of

the instructions to the jury. "A verbatim report of proceedings provided at public

expense will not include the voir dire examination or opening statement unless so

ordered by the trial court."17       Further, Skjold has not shown, nor can we
ascertain, any possibility of prejudice to Skjold by not having a transcript of the

trial court's reading of the instructions to the jury.

       Skjold has filed a motion entitled "Motion to Supplement Statement of

Additional Grounds for Review," which is, in effect, a third SAG. This SAG, like

the other two he filed, was filed well past the 30-day due date in RAP 10.10(d).

We deny Skjold's motion. Further, the issues he raised in it are without merit.

Skjold fails to show how he was prejudiced by appellate counsel's failure to raise

an issue about the trial court's rulings on the motions in limine. And, Skjold cites

no authority requiring appellate counsel to respond to the State's response to an

appellant's pro se SAG.

       3.      Denial of Motion for Mistrial

       During Detective Cyrus O'Bryant's testimony, the following colloquy

occurred:


               Q.     And what did he say about the knife?




16 InreMatterofMaxfield. 133 Wn.2d 332, 344, 945 P.2d 196 (1997).
17 RAP 9.2(b).
No. 69077-9-1 / 9


              A.     He said the knife wasn't his, and he was very specific.
                     He said because he's under DOC super -

              Q.     Wait.

              [PROSECUTOR]:        Move to strike.

              THE COURT:           Motion granted.

       At the end of the day's testimony, out of the presence of the jury, defense

counsel moved for a mistrial, arguing that the detective's statements ran afoul of

ER 404(b). The trial court denied the motion for a mistrial. In his SAG, Skjold

argues that the denial of his motion for a mistrial was error.

       The trial court should grant a mistrial "only when the defendant has been

so prejudiced that nothing short of a new trial can ensure that the defendant will

be fairly tried."18 Factors to consider in determining whether a trial irregularity
prejudiced a defendant's right to a fair trial are (1) the seriousness of the

irregularity, (2) whether it involved cumulative evidence, and (3) whether the trial

court properly instructed the jury to disregard the irregularity.19 We review the
trial court's denial of a motion for mistrial for an abuse of discretion, finding such

an abuse only if "'no reasonable judge would have reached the same

conclusion.'"20

       The trial court's denial of Skjold's motion for a mistrial was not an abuse of

discretion and was not a conclusion that no reasonable judge would have

reached.   The detective did not complete the word "supervision" and the trial


18 State v. Emery, 174 Wn.2d 741, 765, 278 P.3d 653 (2012).
19 Emery. 174 Wn.2d at 765 (quoting State v. Hopson, 113 Wn.2d 273, 284, 778
P.2d 1014 (1989)).
20 Hopson, 113 Wn.2d at 284 (Quoting Sofie v. Fibreboard Corp.. 112Wn.2d636,
667,771 P.2d711 (1989)).
No. 69077-9-1/10


court immediately struck the comment from the record. We cannot say that the

detective's truncated statement so prejudiced Skjold that nothing short of a new

trial can ensure that he will be fairly tried.

       4.      Offender Score Calculation

       Skjold argues that the trial court improperly calculated his offender score

because the three counts with which he was charged constituted the same

criminal conduct.


       "Same criminal conduct" means "two or more crimes that require the same

criminal intent, are committed at the same time and place, and involve the same

victim."21 All three factors must be present; "[i]f any element is missing, multiple

offenses cannot be said to encompass the same criminal conduct."                We

construe the definition of "same criminal conduct" narrowly so as to disallow most

assertions of same criminal conduct. And, "we will reverse a sentencing court's

determination of same criminal conduct only when there is a 'clear abuse of

discretion or misapplication ofthe law.'"23
       Here, all three crimes with which Skjold was charged involved the same

victim. But, the unlawful imprisonment did not occur in the same place as the

burglary and the assault. Further, the offenses do not share the same criminal

intent. One factor in determining whether offenses share the same criminal




21 RCW9.94A.589(1)(a).
22 State v. Wilson. 136 Wn. App. 596, 613, 150 P.3d 144 (2007) (quoting State v.
Lesslev. 118 Wn.2d 773, 778, 827 P.2d 996 (1992)).
23 Wilson. 136 Wn. App. at 613 (quoting State v. Elliott. 114 Wn.2d 6, 17, 785
P.2d 440 (1990)).


                                             10
No. 69077-9-1 /11


intent is whether one crime furthered the other.24 The burglary and assault did
not further the unlawful imprisonment. The trial court did not abuse its discretion

in not counting the three offenses as constituting the same criminal conduct.

       5-     Cruel and Unusual Punishment

       Skjold argues that his 229-month sentence constitutes cruel and unusual

punishment. We review the length of a sentence for abuse of discretion.25 We
will find an abuse of discretion only if (1) the trial court relied on an impermissible

reason, or (2) the sentence is so long that, in light of the record, it shocks the

conscience of the reviewing court.26 We do not review the length of a sentence
in comparison with or in proportion to sentences in other cases.27 A sentence
shocks the conscience when it is one that no reasonable person would adopt.28
       The trial court properly relied on the "free crimes" aggravator in imposing

an exceptional sentence. Under the aggravator, the trial court may impose an

exceptional sentence where the defendant "has committed multiple current

offenses and the defendant's high offender score results in some of the current

offenses going unpunished."29 And, while lengthy, Skjold's sentence does not
shock the conscience of this court. The trial court did not abuse its discretion in

imposing the exceptional sentence.




24 See State v. Burns. 114 Wn.2d 314, 318, 788 P.2d 531 (1990).
25 State v. Ritchie. 126 Wn.2d 388, 392, 894 P.2d 1308 (1995).
26 Ritchie. 126 Wn.2d at 396 (quoting State v. Ross. 71 Wn. App. 556, 573, 861
P.2d 473 (1993)).
27 Ritchie. 126 Wn.2d at 396.
28 State v. Halsev. 140 Wn. App. 313, 324-25, 165 P.3d 409 (2007).
29RCW9.94A.535(2)(c).

                                          11
No. 69077-9-1/12


     Affirmed.




WE CONCUR:




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