                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        October 23, 2018

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                             DIVISION II
    STATE OF WASHINGTON,                                            No. 50517-7-II
                                                                   consolidated with
                                   Respondent,

           v.

    JAMES ROBERT VINES,

                                   Appellant.

    In re Personal Restraint Petition of:                           No. 52297-7-II

    JAMES ROBERT VINES,

                                    Petitioner.               UNPUBLISHED OPINION
           v.


          MELNICK, J. — James R. Vines appeals his conviction for attempting to elude a pursuing

police vehicle. He argues that insufficient evidence supports his conviction, that the trial court

abused its discretion by failing to subject him to a mental health evaluation, and that he received

ineffective assistance of counsel.1

          In a consolidated personal restraint petition (PRP), Vines contends that he received

ineffective assistance of counsel because his trial attorney failed to introduce relevant evidence




1
  Vines also assigns error to the trial court’s adoption of the statement of probable cause into its
findings of fact. However, he does not provide any substantive argument as to this assignment of
error so we do not address it. RAP 10.3(a)(6); State v. Mason, 170 Wn. App. 375, 384, 285 P.3d
154 (2012).
50517-7-II / 52297-7-II


and failed to use it to cross-examine the deputies. He also contends that the prosecutor committed

misconduct by eliciting false testimony from the deputies.

          In a statement of additional grounds (SAG), Vines contends that the prosecutor violated

Brady v. Maryland2 by failing to disclose evidence and makes several duplicative arguments with

his PRP. He also claims that the verbatim report of proceedings is inaccurate and requests that we

authenticate it with video and audio from the trial.

          We conclude that insufficient evidence exists to support Vines’s conviction for attempting

to elude because the State failed to produce any evidence that the police vehicle was equipped with

sirens. Accordingly, we reverse and remand with instructions for the trial court to vacate Vines’s

conviction and enter a conviction for and resentence Vines on the lesser included offense of refusal

to cooperate with an officer.

                                               FACTS

I.        INCIDENT

          On the night of October 21, 2016, Clallam County Deputy Paul Federline responded to a

report of an assault in Port Angeles.         He arrived at a residence which had a driveway,

approximately 300 feet in length, that started at the top of a hill. While Federline searched for the

assault suspect, a vehicle pulled onto the property. Thinking the suspect drove the vehicle,

Federline yelled, “stop, police.” Report of Proceedings (RP) at 246. Federline wore his uniform.

          The vehicle accelerated down the driveway away from Federline and he ran after it. Near

the bottom of the driveway, the vehicle did a three-point turn and then drove back up the driveway

towards the road. As it passed, Federline recognized the driver as Vines, whom he knew by sight.

Federline intended to arrest Vines because he knew that Vines had an outstanding warrant.


2
     373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).


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Federline again yelled, “stop, police,” but Vines continued driving. RP at 250. Federline had to

get out of the way to avoid being hit by Vines’s vehicle.

       Clallam County Sergeant John Hollis had also responded to the residence and had parked

at the top of the driveway. He was in uniform, and drove a marked car with sheriff’s office stickers

and a light bar. Hollis described the vehicle he drove as “quite an Explorer.” RP at 305. It had

overhead lights, spotlights, and flood lights. Hollis did not say whether the vehicle was equipped

with sirens.

       Federline radioed Hollis and told him a vehicle was leaving the residence. Hollis then

heard Federline yell “stop, police.” RP at 307. Hollis saw Vines’s vehicle coming up the driveway

toward him.

       Hollis turned his vehicle’s overhead lights on and drove toward Vines’s vehicle as it drove

toward him. Hollis shined his spotlight on Vines. Vines’s vehicle seemed to be weaving back and

forth in the driveway in an attempt to go around Hollis’s vehicle, so Hollis mimicked Vines’s

vehicle’s movements in order to block him. Hollis thought Vines was going to hit him but the

vehicles stopped with inches between their bumpers.

       Vines then put his vehicle into reverse and accelerated back down the driveway. Federline

again dived out of the way to avoid being hit. Vines’s vehicle got stuck on an embankment to the

side of the driveway and stopped, but Federline could still hear the engine running and the wheels

turning.

       Because Federline could not open Vines’s passenger side door, Hollis told him to break

the window. He did. Vines then put his hands up and said, “okay, okay.” RP at 269. Federline

placed Vines under arrest and asked why he had run and Vines answered that he was scared.




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       A witness opined that the above events all took place over about a minute and a half.

       A computer aided dispatch (CAD) narrative from that night began with the call to

investigate the assault, but later contained information related to Vines. The CAD indicated that

police arrested Vines ninety-seven seconds after his vehicle approached the residence. It also

suggested that he would be charged with felony assault.

       The State charged Vines with one count of attempting to elude a pursuing police vehicle.

II.    TRIAL

       Federline and Hollis testified at trial to the above facts. Neither party admitted the CAD

nor argued anything about its contents.

       The trial court’s instructions to the jury stated that, to convict Vines of attempting to elude,

it must find beyond a reasonable doubt that “the signaling police officer’s vehicle was equipped

with lights and siren” and that “while attempting to elude a pursuing police vehicle, the defendant

drove the vehicle in a reckless manner.” Clerk’s Papers (CP) at 88. The court also instructed the

jury on the lesser included offense of refusing to give information or cooperate with an officer.

The jury found Vines guilty of attempting to elude.

III.   VINES’S MENTAL CONDITION

       Before the trial court appointed Vines counsel, an attorney who represented Vines at his

first appearance noted that Vines had previously been found not guilty by reason of insanity. The

attorney suggested that there was “at least reason to believe that whoever is assigned counsel may

wish to initiate a competence evaluation.” RP at 11.

       Vines’s first assigned counsel withdrew from the case. Before withdrawing, he told the

court that if his pending motion to suppress evidence was denied, Vines would require “extensive

and intensive mental health evaluations.” RP at 21. At that same hearing, Vines said “I wonder,



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in the interest of saving time, Your Honor, if we could have an evaluator come into [sic] evaluate

my mental health?” RP at 25. His attorney said that would probably happen with new counsel

because it would be unnecessary if the pending motion to suppress succeeded.

       Before withdrawing, the same attorney later stated that “these cases, I suppose, are going

to require a lot of mental health evaluations or at least I don’t know about a lot of evaluations, but

rather intensive and extensive ones.” RP at 52.

       At a subsequent hearing, Vines’s new attorney stated that Vines “would like to have a

mental health evaluation. He doesn’t believe he’s maybe competent to go to trial.” RP at 82.

Vines immediately interjected: “Oh, no, I believe I’m competent to go to trial, but I believe there’s

issues that come into sentencing, when it comes to sentencing.” RP at 82. The trial court, Vines,

and his attorney agreed that the issue could wait until after trial since it would concern sentencing.

       Throughout the case, Vines sent numerous letters to the trial court describing events from

his life history, accusing the police, the prosecutor, and his attorney of lying and conspiring against

him, and requesting a lie detector test. He stated that he had severe mental health issues.

       Vines frequently interjected his thoughts about the case and details about the evidence

during court proceedings. In various hearings before trial, Vines demonstrated that he understood

that the prosecutor’s preplanned vacation caused delays and the difference between pleading guilty

and going to trial. At one point, he and his attorney had a conversation discussing their trial

strategy on the record. Vines did not make any disruptive comments on the record during the trial.

       A.      POST-CONVICTION HEARING

       After the jury found Vines guilty, his lawyer requested a presentencing mental health

evaluation. She agreed with the trial court’s suggestion that she find an independent evaluator and

then come to the court to get funds to pay for it.



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       At a hearing several weeks later, Vines’s attorney stated that she knew a mental health

evaluation of Vines had occurred in a previous 2010 or 2012 case. She also said that she did not

see how the results of an evaluation would affect sentencing. She stated:

       I don’t believe we had a competency issue when this matter first came before the
       court. There was not a claim that he didn’t understand what was going on, which
       would have addressed his competency. We clearly didn’t assert an insanity defense
       for the purposes of the charge. It was just a general denial.

RP at 417. The trial court, the prosecutor, and Vines’s attorney all agreed that there would be little

purpose to a mental health evaluation.

       Vines then said he had been requesting a mental health evaluation for five months and that

his attorney was ignoring him. He requested a mental health evaluation and a new attorney, and

claimed that he had been misdiagnosed in his last mental health evaluation. The trial court denied

the request for a new attorney and explained to Vines that the jury had found him guilty and that

his attorney had done a good job representing him. Vines again stated that he had severe mental

health issues.

       Vines said his previous attorney had intended to get him a mental health evaluation and

Vines, the trial court, and his attorney discussed the timeline of the beginning of the case and why

Vines’s previous attorney had not requested an evaluation. His trial counsel then filed a written

motion for a psychological evaluation.

       In ruling on the motion, the trial court stated:

       I’m not going to authorize another mental health evaluation or psychological
       evaluation. . . . I can find no legal basis for it. I mean, with that being said, I do
       think you have some mental health issues. I mean, I think I have some mental
       health issues. I think everyone has some. Yours seem to be real and bothersome
       to you, but when I look at this case, you know, the allegations came—this event
       happened October 21, 2016. We’re in April of 2017, now. You’ve got two other
       cases and one of them . . . there was an evaluation done. You were found to be
       competent as of that time, which was September, 2014. You pleaded guilty in that
       case in March of 2015. In the other case here, . . . you pleaded guilty in March of


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         2015. You were sentenced in April of 2015. There’s been no motion prior in this
         case for any sort of a mental health evaluation until after the jury convicted you of
         the crime that you were charged with. There’s no basis at this point for the court
         to order it.

RP at 437-38. On April 27, 2017, the court sentenced Vines to a 26 month standard range sentence

for attempting to elude a pursuing police vehicle.

IV.      APPEAL AND CrR 7.8 MOTION

         Vines appealed his conviction to this court. 3

         On April 2, 2018, Vines moved to vacate his judgement and sentence in the trial court

pursuant to CrR 7.8. PRP at 1. The trial court transferred the motion to this court to be

consolidated with his direct appeal on May 1. We accepted the transfer as a PRP and consolidated

it with the direct appeal.

                                             ANALYSIS

I.       SUFFICIENCY OF EVIDENCE

         Vines claims insufficient evidence exists to support the attempting to elude charge because

the State presented no evidence that the pursuing police vehicle was equipped with a siren. 4 We

agree.




3
  Since Vines filed his appeal, he has addressed numerous letters to the court, primarily
complaining about his appellate attorney. He titled one such letter “RAP 9.1 Motion” and
requested relief based on an e-mail from the trial prosecutor he acquired via a public records
request. Because represented parties do not have a right to file pro se motions, we do not respond
to Vines’s pro se motion. See State v. Romero, 95 Wn. App. 323, 327, 975 P.2d 564 (1999).
4
 Vines also contends that the State failed to prove beyond a reasonable doubt that Hollis “pursued”
him and that the deputies’ testimony about his tires was inconsistent with his vehicle being front-
wheel drive. Because the State failed to produce any evidence that the police vehicle was equipped
with sirens, we reverse on that basis and do not reach Vines’s additional sufficiency of evidence
arguments.


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       To determine whether sufficient evidence supports a conviction, we view the evidence in

the light most favorable to the State and determine whether any rational fact finder could have

found the elements of the crime beyond a reasonable doubt. State v. Engel, 166 Wn.2d 572, 576,

210 P.3d 1007 (2009). In claiming insufficient evidence, “the defendant necessarily admits the

truth of the State’s evidence and all reasonable inferences that can be drawn from it.” State v.

Drum, 168 Wn.2d 23, 35, 225 P.3d 237 (2010). Any inferences “‘must be drawn in favor of the

State and interpreted most strongly against the defendant.’” State v. Homan, 181 Wn.2d 102, 106,

330 P.3d 182 (2014) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).

       The attempting to elude a police vehicle statute states:

       Any driver of a motor vehicle who willfully fails or refuses to immediately bring
       his or her vehicle to a stop and who drives his or her vehicle in a reckless manner
       while attempting to elude a pursuing police vehicle, after being given a visual or
       audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The
       signal given by the police officer may be by hand, voice, emergency light, or siren.
       The officer giving such a signal shall be in uniform and the vehicle shall be
       equipped with lights and sirens.

RCW 46.61.024(1). The statute requires both that a pursuing officer be “in uniform” and his or

her vehicle be “equipped with lights and sirens.” RCW 46.61.024(1).

       State v. Naillieux, 158 Wn. App. 630, 645, 241 P.3d 1280 (2010), held that an essential

element of the crime of attempting to elude is that the pursuing police vehicle must be equipped

with lights and sirens. The State must prove all essential elements of a crime beyond a reasonable

doubt. State v. Sibert, 168 Wn.2d 306, 311, 230 P.3d 142 (2010).

       In this case, Hollis described his vehicle as “[a] marked Ford Explorer Cross-Over. It’s

quite an Explorer.” RP at 305. He testified that it was equipped with sheriff’s office stickers, a

light bar, overhead lights, spotlights, and flood lights. Federline testified that “[t]hese new patrol




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vehicles, they’re like Christmas trees, they have lights all over them.” RP at 299. Neither deputy

stated the vehicle was equipped with a siren.

       The State contends that there was evidence in the record from which the jury could have

inferred that Hollis’s vehicle was equipped with sirens. We disagree and conclude that this case

is similar to State v. Hudson, 85 Wn. App. 401, 932 P.2d 714 (1997). In Hudson, two police

officers pursued the defendant in a marked patrol vehicle, but no evidence existed that the officers

were in uniform. 85 Wn App. at 404. Hudson held that “[e]vidence that the officers were in a

marked vehicle and that Hudson probably knew that they were police officers, without more, [was]

insufficient to permit a rational trier of fact to infer beyond a reasonable doubt that these officers

were in uniform.” 85 Wn. App. at 405.

       In the present case, although the deputies testified extensively about the lights on the new

patrol vehicle, the State presented no evidence that it was equipped with a siren. Accordingly,

insufficient evidence supported Vines’s conviction.

       Next, we consider the appropriate remedy. We may remand for sentencing on a lesser

included offense where the trial court instructed the jury on the lesser included offense and the

jury necessarily found the elements of that offense in finding the defendant guilty of the greater

offense. State v. Green, 94 Wn.2d 216, 234-35, 616 P.2d 628 (1980). Here, the trial court

instructed the jury on the lesser included offense of refusing to cooperate with an officer. That

this charge is a lesser included offense is the law of the case. See State v. Johnson, 188 Wn.2d

742, 755, 399 P.3d 507 (2017) (“[J]ury instructions that are not objected to are treated as the

properly applicable law for purposes of appeal.”) (quoting Roberson v. Perez, 156 Wn.2d 33, 41,

123 P.3d 844 (2005)).




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       Conviction for refusing to cooperate with an officer requires proof that Vines, while

operating or in charge of a vehicle, refused or neglected to stop when requested to do so by a police

officer. CP at 96; RCW 46.61.020(1). The jury necessarily found the elements of this lesser

included crime when it decided the attempting to elude charge. Accordingly, we remand for the

trial court to enter a conviction for and resentence on the lesser included offense of refusal to

cooperate with an officer.

       Because we remand for resentencing on the lesser included offense, we consider Vines’s

additional arguments.

II.    COMPETENCY EVALUATION

       Vines claims he was denied due process when the trial court failed to order a competency

evaluation. Vines claims that the trial court abused its discretion by failing to order a competency

evaluation before trial on its own initiative and by failing to do so before sentencing on motion of

his trial counsel. We disagree.

       A.      LEGAL PRINCIPLES

       “No incompetent person shall be tried, convicted, or sentenced for the commission of an

offense so long as such incapacity continues.” RCW 10.77.050. “‘Requiring that a criminal

defendant be competent has a modest aim: It seeks to ensure that he has the capacity to understand

the proceedings and to assist counsel.’” In re Pers. Restraint of Fleming, 142 Wn.2d 853, 862, 16

P.3d 610 (2001) (quoting Godinez v. Moran, 509 U.S. 389, 402, 113 S. Ct. 2680, 125 L. Ed. 2d

321 (1993)). “‘Incompetency’ means a person lacks the capacity to understand the nature of the




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proceedings against him or her or to assist in his or her own defense as a result of mental disease

or defect.”5 RCW 10.77.010(15).

       Trial courts are required to order a competency evaluation when “there is reason to doubt

[the defendant’s] competency.” RCW 10.77.060(1)(a). Whether to order a competency evaluation

“rests generally within the discretion of the trial court.” State v. Heddrick, 166 Wn.2d 898, 903,

215 P.3d 201 (2009). It should consider factors including the “‘defendant’s appearance, demeanor,

conduct, personal and family history, past behavior, medical and psychiatric reports and the

statements of counsel.’” Fleming, 142 Wn.2d at 863 (quoting State v. Dodd, 70 Wn.2d 513, 514,

424 P.2d 302 (1967)). If the trial court fails to “observe procedures adequate to protect an

accused’s right not to be tried while incompetent to stand trial,” it denies the defendant’s right to

due process. Fleming, 142 W n.2d at 863.

       We review the decision whether to order a competency hearing for abuse of discretion.

State v. Sisouvanh, 175 Wn.2d 607, 620, 290 P.3d 942 (2012). Under this standard, we find error

only if the trial court’s decision “(1) adopts a view that no reasonable person would take and is

thus ‘manifestly unreasonable,’ (2) rests on facts unsupported in the record and is thus based on

‘untenable grounds,’ or (3) was reached by applying the wrong legal standard and is thus made

‘for untenable reasons.’” Sisouvanh, 175 Wn.2d at 623 (quoting State v. Rohrich, 149 Wn.2d 647,

654, 71 P.3d 638 (2003)) (internal quotations omitted).




5
  The test for incompetency is different from the test for insanity. Insanity is an affirmative defense
that relates to events occurring at the time of the commission of the offense. RCW 9A.12.010.
Competency is required before a person can even go to trial. RCW 10.77.050.


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        B.      BEFORE TRIAL

        Vines did not move for a competency evaluation prior to trial. However, whenever “there

is reason to doubt [the defendant’s] competency, the court on its own motion or on the motion of

any party,” must appoint an expert to evaluate the defendant’s mental health.                   RCW

10.77.060(1)(a).    We consider whether the record suggests any reasons to doubt Vines’s

competency.

        Vines took many actions in this case that he contends should have suggested to the trial

court that he was incompetent to stand trial. These actions included sending rambling letters to

the court, his compulsive behavior in court, and his requests for a mental health evaluation. None

of these actions indicated that Vines could not either understand the nature of the proceedings or

assist in his defense.

        Throughout his courtroom outbursts, letters, and erratic behavior, Vines never seemed

unable to understand the proceedings. In many of his letters, he argued he was innocent, relayed

his version of the facts of the case, and requested a lie detector test to prove his innocence. Vines’s

focus on the facts, along with his insistence that the police were lying or conspiring against him,

suggests that he was aware of the nature of the criminal charges.

        In Vines’s letters, he suggested legal strategies for his defense, including subpoenaing

witnesses, taking a lie detector test, and confronting the deputies with specific inconsistencies in

their stories. He made statements on the record demonstrating his own recall of specific events

earlier in the case, including that the proceedings had been delayed for the prosecutor’s scheduled

vacation. Also on the record, Vines asked his attorney about witnesses she had interviewed and

whether she had read letters he sent her. He also stated his intent to go to trial. These acts




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demonstrate that Vines understood the nature of the proceedings and could assist his lawyer in his

defense.

       Vines’s first appointed lawyer did not question Vines’s competency. He opined that Vines

would require “extensive and intensive” mental health evaluations, but decided to pursue a motion

to suppress evidence before pursuing an evaluation. RP at 21. Later, his next attorney stated that

Vines didn’t “believe he’s maybe competent to go to trial” and requested a mental health

evaluation, but Vines stated “Oh, no, I believe I’m competent to go to trial.” RP at 82.

       The trial court did not abuse its discretion by failing to order a competency evaluation of

Vines on its own initiative before trial because it had no reason to believe that Vines was

incompetent to stand trial.

       C.      AFTER TRIAL

       Vines additionally argues that the trial court abused its discretion by failing to order a

competency hearing after Vines was found guilty but prior to his sentencing, when his trial counsel

moved for a psychological evaluation. Vines contends that the additional letters he sent to the

court between his conviction and sentencing gave the trial court a reason to doubt his competency.

We disagree.

       RCW 10.77.050 prohibits a court from sentencing an incompetent person.

       After Vines’s trial, his attorney moved for a psychological evaluation. Vines’s post-

conviction letters to the court indicate his understanding of and outrage at his situation. He

repeatedly called the police liars, accused the attorneys and police of conspiring against him, and

demanded a lie detector test. He also suggested that the court obtain testimony from another

witness he claimed could exonerate him. None of the content of his letters indicated that Vines

could not understand the nature of the proceedings or that he could not assist in his defense.



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       The trial court did not abuse its discretion when it did not order a post-conviction

competency evaluation.

III.   INEFFECTIVE ASSISTANCE OF COUNSEL

       In his direct appeal, Vines contends that he received ineffective assistance of counsel

because his trial counsel did not move for a competency evaluation before trial. In his PRP, he

makes additional ineffective assistance of counsel arguments.

       A.      LEGAL PRINCIPLES

       The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington State Constitution guarantee the right to effective assistance of counsel. Strickland v.

Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d. 674 (1984); State v. Grier, 171

Wn.2d 17, 32, 246 P.3d 1260 (2011).

       We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on a claim of ineffective assistance of counsel,

the defendant must show both (1) that defense counsel’s representation was deficient, and (2)

that the deficient representation prejudiced the defendant. Grier, 171 Wn.2d at 32-33; State v.

Linville, __ Wn.2d __, 423 P.3d 842, 847 (2018). Representation is deficient if, after considering

all the circumstances, the performance falls “‘below an objective standard of reasonableness.’”

Grier, 171 Wn.2d at 33 (quoting Strickland, 446 U.S. at 688). Prejudice exists if there is a

reasonable probability that, except for counsel’s errors, the results of the proceedings would have

differed. Grier, 171 Wn.2d at 34. If either prong is not satisfied, the defendant’s claim fails. In

re Pers. Restraint of Davis, 152 Wn.2d 647, 673, 101 P.3d 1 (2004).




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       A defendant faces a strong presumption that counsel’s representation was effective. Grier,

171 Wn.2d at 33. Legitimate trial strategy or tactics cannot serve as the basis for a claim of

ineffective assistance of counsel. State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009).

       B.      COMPETENCY

       Vines contends that his trial counsel was ineffective for failing to request that his

competency be evaluated prior to trial. He claims his trial counsel’s conduct was deficient for

failing to bring Vines’s mental health problems to the court’s attention and that this prejudiced him

“because he was subjected to standing trial in violation of his due process right to a fair trial.” Br.

of Appellant at 21.

       We give considerable weight to an attorney’s opinion regarding the client’s competency.

State v. Fedoruk, No. 49975-4-II, slip op. at 10 (Wash. Ct. App. June 26, 2018),

http://www.courts.wa.gov/opinions/.

       As discussed above, nothing in the record demonstrates that Vines was unable to

understand the nature of the proceedings or unable to assist in his defense. Accordingly, it was

not deficient for his attorney not to move for a competency evaluation and the decision did not

prejudice his case.

       C.      CAD

       In his PRP, Vines claims that his trial counsel was ineffective for failing to introduce the

CAD into evidence and use it to cross-examine the deputies.6 The State responds that the CAD



6
 Vines also claims that his trial counsel “had ample opportunity to schedule a fact-finding hearing,
move[ ] to suppress evidence, and request dismissal of the charges against Mr. Vines.” PRP at 3.
Vines does not provide any further argument as to why any of these actions was deficient nor how
any prejudiced his case. We do not consider these claims of ineffective assistance. RAP
10.3(a)(6); see Mason, 170 Wn. App. at 384 (declining to consider passing treatment of an issue
or lack of reasoned argument).


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was not inconsistent with the deputies’ testimony and that it would have been inadmissible as

evidence for lack of relevance.

          Vines must show both that his trial counsel’s performance was deficient and that her

deficiency prejudiced his case. Grier, 171 Wn.2d at 33. The standard for prejudice is the same on

collateral attack as on direct appeal. In re Pers. Restraint of Crace, 174 Wn.2d 835, 846-47, 280

P.3d 1102 (2012).

          Vines has attached the CAD to his PRP. However, he has not submitted any documents or

other evidence showing that his trial counsel had access to the CAD at the time of trial. Neither

the record nor any document attached to Vines’s PRP establishes whether Vines’s trial counsel

had access to the CAD at or prior to trial. Accordingly, his trial counsel was not ineffective for

failing to cross-examine the deputies with it or introduce it into evidence. There is no showing of

deficiency or prejudice.

          Assuming that Vines’s trial counsel had the CAD at trial, nothing in the CAD contradicts

the deputies’ testimony. The CAD shows that the deputies identified Vines’s vehicle at the site of

the crime on the night of the crime and, ninety-seven seconds later, took Vines into custody. It

also stated that Vines was charged with felony assault. It was conceivably a strategic decision not

to introduce evidence that corroborates these elements of the deputies’ story. It is also conceivable

that Vines’s trial counsel wanted to avoid admitting a document that associated her client with

felony assault, a charge unrelated to the charged crime in the case.7

          Vines contends that it is impossible for the events described by the deputies, from first

observing his vehicle to placing him under arrest, to have occurred in ninety-seven seconds. He

contends that the lack of information about Vines’s flight in the CAD contradicts Federline’s


7
    Linville does not affect this result. 423 P.3d at 847.


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testimony that he “announced, over the radio, that a vehicle had taken off” on him. RP at 247.

Without any background information about what a CAD is or what information it contains in the

record, there is no reason to believe that lack of detail in the CAD contradicted Federline’s

testimony. Additionally, if the CAD did in fact show that the full incident lasted only ninety-seven

seconds, that is not inconsistent with the deputies’ testimony. Vines’s witness testified that the

entire encounter lasted about a minute and a half.

       Vines’s trial counsel was not ineffective for failing to introduce the CAD and use it to

cross-examine the deputies.

IV.    PROSECUTORIAL MISCONDUCT

       In his PRP, Vines contends that the prosecutor committed misconduct by eliciting material

false testimony from the deputies. Vines does not specify any particular false testimony; he seems

to be arguing all of the inculpatory evidence was false.

       “Prosecutorial misconduct may deprive a defendant of his constitutional right to a fair

trial.” In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012). An

appellant claiming prosecutorial misconduct must demonstrate that the prosecutor’s conduct was

both improper and prejudicial. State v. Emery, 174 Wn.2d 741, 759-61, 278 P.3d 653 (2012). “In

a PRP, the petitioner must show actual and substantial prejudice by a violation of his or her

constitutional rights or by a fundamental error of law.” In re Pers. Restraint of Pirtle, 136 Wn.2d

467, 482, 965 P.2d 593 (1998). “‘Allegations of prosecutorial misconduct are reviewed under an

abuse of discretion standard.’” State v. Thorgerson, 172 Wn.2d 438, 460, 258 P.3d 43 (2011)

(quoting State v. Brett, 126 Wn.2d 136, 174-75, 892 P.2d 29 (1995)).

       The State has a duty not to elicit perjury or present false evidence. State v. Finnegan, 6

Wn. App. 612, 616, 495 P.2d 674 (1972). To succeed on a claim that the prosecutor presented



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false evidence, Vines must show (1) the testimony was actually false, (2) the prosecutor knew or

should have known that the testimony was actually false, and (3) the false testimony was material.

See United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).

       Vines’s only support for his argument that the testimony was false is the CAD. Because

the CAD is not inconsistent with the deputies’ testimony, Vines has not shown that the prosecutor

knowingly elicited false testimony. We reject Vines’s prosecutorial misconduct claim.

                          STATEMENT OF ADDITIONAL GROUNDS

I.     BRADY VIOLATION

       Vines contends that the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct.

1194, 10 L. Ed. 2d 215 (1963), by failing to disclose the CAD to his trial attorney.

       Brady held that “‘the suppression by the prosecution of evidence favorable to the accused

upon request violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.’” State v. Mullen, 171 Wn.2d 881,

894, 259 P.3d 158 (2011) (quoting Brady, 373 U.S. at 87). To establish a Brady violation, Vines

must show “‘[(1)] The evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; [(2)] that evidence must have been suppressed by the

State, either willfully or inadvertently; and [(3)] prejudice must have ensued.’” Mullen, 171 Wn.2d

at 895 (quoting Strickler v. Green, 527 U.S. 263, 281-82, 119 S. Ct. 1936, 144 L. Ed. 2d 286

(1999)).

       Vines’s claim is unsupported in the record and fails. If Vines has evidence that the

prosecutor did not disclose the CAD, that the CAD is exculpatory or impeaching, and that the

prosecutor’s failure to disclose it prejudiced his case, he may obtain review by attaching that




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evidence to a personal restraint petition.8 See State v. McFarland, 127 Wn.2d 322, 330, 899 P.2d

1251 (1995).

II.    PROSECUTORIAL MISCONDUCT

       Vines contends that the prosecutor committed misconduct by deliberately misrepresenting

the truth in his examination of the deputies and eliciting perjury. This claim is duplicative with

the claim in Vines’s PRP and it is addressed above. See State v. Thompson, 169 Wn. App. 436,

493, 290 P.3d 996 (2012) (Errors that have been thoroughly addressed by counsel are “not proper

matters for [the] statement of additional grounds under RAP 10.10(a).”).9

III.   INEFFECTIVE ASSISTANCE OF COUNSEL

       Vines contends that his trial counsel was ineffective in her cross-examination of both

deputies. Like the prosecutorial misconduct claims in his SAG, this argument is duplicative with

arguments in his PRP that are addressed above and we do not consider it again.

IV.    INACCURATE REPORT OF PROCEEDINGS

       Vines contends that the verbatim report of proceedings in this case are inaccurate and urges

us to have them authenticated with video and audio from the trial. He does not produce any

evidence of alteration other than his memory of the proceedings. We deny Vines’s request.




8
 Vines has filed a personal restraint petition consolidated with this case in which he attached the
CAD itself. However, he did not include any documents suggesting that any Brady elements are
met.
9
  Vines’s PRP is pro se, distinguishing his case from Thompson, where the defendant made SAG
arguments duplicative with his counsel’s brief. 169 Wn. App. at 493. The reasoning still applies
as there is no reason for us to address the same argument more than once because Vines raises it
in multiple locations.


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                                        CONCLUSION

       We reverse Vines’s conviction and remand to the trial court to vacate Vines’s conviction

and enter a conviction and resentence Vines on the lesser included offense of refusal to cooperate

with an officer.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for the public record in accordance with RCW

2.06.040, it is so ordered.




                                                            Melnick, J.

We concur:




       Bjorgen, J.




       Lee, A.C.J.




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