                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        November 3, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 STATE OF WASHINGTON,                                               No. 46229-0-II

                               Respondent,

        v.

 BENJAMIN A. PETERS,                                          UNPUBLISHED OPINION

                               Appellant.

       WORSWICK, P.J. — A jury found Benjamin Peters guilty of (1) second degree robbery

and (2) escape from community custody. He appeals his convictions arguing that his trial

counsel rendered ineffective assistance by failing to file a motion to sever the charges. Peters

also raises several issues in his statement of additional grounds (SAG). We affirm.

                                              FACTS

                             I. ESCAPE FROM COMMUNITY CUSTODY

       Following a felony conviction, Peters was under the supervision of the Washington State

Department of Corrections (DOC). On January 6, 2014, Peters went to the DOC office to report

to his primary community corrections officer (CCO), Donovan Russell, who was responsible for

reintegrating Peters back into the community and for making sure Peters followed the conditions

of his release. CCO Russell was out of the office that day, so CCO William Corbett instructed
No. 46229-0-II



him to return the following day.1 Peters filed a monthly report of his whereabouts, but did not

return to the DOC office. Because Peters had not reported, CCO Russell issued a warrant for

Peters on January 10.

                                  II. SECOND DEGREE ROBBERY

       On the night of January 11, 70-year-old Ida Malcom was playing a slot machine at

Squaxin Island Tribe’s Little Creek Casino. A man in a leather jacket, cap, and yellow shirt sat

at the machine next to her. Malcom testified that the man stood up and leaned into her with all

his weight. Malcom was unable to push him off of her. The man cashed out Malcom’s machine,

grabbed the ticket and Malcom’s purse, and ran out of the casino.

       Squaxin Island Police Officer Tracy Rollins responded to the casino within about two

minutes of receiving a report of the incident. Casino video surveillance captured footage of the

robbery and of the man running from the building and behind the casino. Hoping to recover the

purse, Officer Rollins went behind the casino. There, she found Peters holding a jacket, cap, and

yellow shirt. Officer Rollins testified that it was “pretty chilly” that night. Verbatim Report of

Proceedings (VRP) at 117. Nonetheless, other than the clothes in his hand, Peters wore only

jeans and an undershirt. Peters fled when Officer Rollins told Peters to put his hands in the air.

Officer Rollins pursued Peters and eventually Peters was apprehended and placed under arrest.

       Deputy Bradley Trout of the Mason County Sheriff’s Office responded to Officer

Rollins’s request for assistance and took over the investigation. Deputy Trout advised Peters of




1
  CCO Russell testified that CCO Corbett had the authority to make decisions on CCO Russell’s
behalf.


                                                 2
No. 46229-0-II



his Miranda2 rights. Peters stated that he understood his rights and agreed to speak with Deputy

Trout. When asked where the purse could be found, Peters responded, “If I tell you where it is

will you drop all my charges?” VRP at 123. Peters then said, “[I]f I tell you where it’s at then

what’s in it for me?” VRP at 123. Officials never recovered the purse.

                                     III. PROCEDURAL HISTORY

         The State’s original information charged Peters with a single count of second degree

robbery.3 At a pretrial management hearing the court reviewed the consolidated omnibus order

and noted “holdback charges” including one count of escape from community custody. 4 VRP at

35. Peters’s counsel commented, “I think the escape from community custody would have to be

charged as a separate case. I don’t think those facts and these overlap.” VRP at 36. The court

urged Peters to make any motion on this issue “expeditiously.” VRP at 36. No motion to sever

was filed.

         On the day of trial, the State filed an amended information adding one count of escape

from community custody. Peters’s new trial counsel5 did not object to the filing, did not make a

motion to sever the charges, and entered a not guilty plea.




2
    Miranda v. Arizona, 384 U.S. 436, 86. S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
    RCW 9A.56.190; RCW 9A.56.210.
4
    RCW 72.09.310.
5
 Peters’s original court appointed trial counsel withdrew prior to trial citing conflict of interest.
The court then appointed a different attorney to represent Peters throughout the remainder of the
case.


                                                  3
No. 46229-0-II



       At trial, the State sought to call CCO Corbett to testify as to his interaction with Peters on

January 6. Apparently CCO Corbett was not listed as a potential witness for the State during

discovery. Outside the presence of the jury, the parties agreed that calling CCO Corbett as a

witness would not prejudice Peters given the narrow scope of CCO Corbett’s anticipated

testimony and the fact that Peters would have the opportunity to talk to CCO Corbett before he

testified. Prior to calling CCO Corbett to testify, the court conducted an additional panel voir

dire colloquy to ensure none of the jurors had any connection to CCO Corbett. CCO Corbett

testified that on January 6, 2014, he instructed Peters to report to the office the following day

because CCO Russell was out of the office.

       The jury found Peters guilty of both charges.

                                            ANALYSIS

       Peters argues his trial counsel rendered ineffective assistance by failing to file a motion to

sever the escape from community custody charge from the second degree robbery charge. We

disagree.

       To show ineffective assistance of counsel, a defendant must show (1) that defense

counsel’s conduct was deficient and (2) that the deficient performance resulted in prejudice.

State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004); see also Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show deficient

performance, Peters must show that defense counsel’s performance fell below an objective

standard of reasonableness. Reichenbach, 153 Wn.2d at 130. To show prejudice, Peters must

show a reasonable probability that, but for counsel’s purportedly deficient conduct, the outcome




                                                  4
No. 46229-0-II



of the trial would have differed. 153 Wn.2d at 130. If Peters fails to establish either prong of the

ineffective assistance of counsel test, we need not inquire further. State v. Foster, 140 Wn. App.

266, 273, 166 P.3d 726 (2007). Because ineffective assistance of counsel claims present mixed

questions of law and fact, we review them de novo. State v. Sutherby, 165 Wn.2d 870, 883, 204

P.3d 916 (2009).

       “The threshold for the deficient performance prong is high, given the deference afforded

to [the] decisions of defense counsel in the course of representation.” State v. Grier, 171 Wn.2d

17, 33, 246 P.3d 1260 (2011). To show deficient performance, the petitioner must show the

absence of any conceivable legitimate tactic supporting counsel’s action. Grier, 171 Wn.2d at

33. If defense counsel’s actions go to the theory of the case, we will not find ineffective

assistance of counsel. 171 Wn.2d at 33.

       Here, Peters’s trial counsel made the tactical decision to use the escape from community

custody charge as part of his defense against the second degree robbery charge. “When

counsel’s conduct can be categorized as legitimate trial strategy or tactics, performance is not

deficient.” State v. Kyllo, 166 Wn.2d 856, 863, 215 P.3d 177 (2009). Peters argued identity as

his defense theory to the robbery charge. In his closing argument, Peters explained he only ran

from Officer Rollins when she found him behind the casino because Peters knew he had a

warrant out for his arrest, not because he had stolen the woman’s purse. Generally, legitimate

trial strategy cannot serve as the basis for a claim of ineffective assistance of counsel. State v.

Carson, 179 Wn. App. 961, 976, 320 P.3d 185 (2014). Keeping the charges joined was a

legitimate trial tactic employed to mitigate circumstantial evidence from which the jury could




                                                  5
No. 46229-0-II



infer guilt. Consequently, we hold that trial counsel’s performance did not fall below an

objectively reasonable standard and as such Peters’s claim for ineffective assistance of counsel

fails.

                          STATEMENT OF ADDITIONAL GROUNDS

         In his SAG, Peters raises several additional arguments challenging his conviction. A

SAG must adequately inform the court of the nature and occurrence of alleged errors. State v.

Calvin, 176 Wn. App. 1, 26, 302 P.3d 509 (2013). Issues involving facts outside of the record

are properly raised in a personal restraint petition, rather than a SAG. Calvin, 176 Wn. App. at

26-27. We are “not obligated to search the record in support of claims made in a [SAG].” RAP

10.10(c).

                            I. IMPROPER AMENDMENT OF INFORMATION

         Peters claims the State denied him his right to a fair trial by improperly amending the

information on the day of trial to include the escape from community custody charge. He also

claims the State committed prosecutorial misconduct by amending the information, and that his

trial counsel rendered ineffective assistance by not requesting a trial continuance after the

amended information was filed. We hold that the amended information was proper and Peters’s

claims are meritless.

A.       Right to a Fair Trial

         Amendment of a charging document is governed by CrR 2.1(d), which provides “[t]he

court may permit any information or bill of particulars to be amended at any time before verdict

or finding if substantial rights of the defendant are not prejudiced.” The defendant bears the




                                                  6
No. 46229-0-II



burden of demonstrating prejudice. State v. Emery, 161 Wn. App. 172, 201, 253 P.3d 413

(2011). A trial court’s ruling on a proposed amendment to an information is reviewed for abuse

of discretion. State v. Ziegler, 138 Wn App. 804, 808, 158 P.3d 647 (2007).

       Peters alleges the amended information prejudiced him by denying him a fair trial. This

broad allegation insufficiently demonstrates prejudice. On the contrary, the record shows that

Peters was given notice at the pretrial management hearing that the escape from community

custody charge would possibly be added to an amended information. Additionally, the State

served a copy of the amended information on Peters and his trial counsel before trial. Peters fails

to assert how the amended information prejudiced him in any way, and given the advanced

notice of the amendment, we reject Peters’s claim.

B.     Prosecutorial Misconduct

       Peters also claims the State committed prosecutorial misconduct by filing the amended

information. Prosecutorial misconduct is grounds for reversal if the prosecuting attorney’s

conduct was both improper and prejudicial. State v. Monday, 171 Wn.2d 667, 675, 257 P.3d 551

(2011). Absent a timely objection, reversal is required only if the conduct is so flagrant and ill-

intentioned that it causes an enduring and resulting prejudice that could not have been

neutralized by a curative instruction to the jury. State v. Warren, 165 Wn.2d 17, 43, 195 P.3d

940 (2008).

       Peters does not say, nor does the record show, how the State’s conduct was flagrant or ill-

intentioned. In fact, the record shows that the State took affirmative steps to give Peters notice

of the amended information. We reject his claim.




                                                 7
No. 46229-0-II



C.     Ineffective Assistance of Counsel

       Peters also claims his trial counsel rendered ineffective assistance by failing to request a

continuance following the filing of the amended information. To show ineffective assistance of

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

deficient performance resulted in prejudice. Reichenbach, 153 Wn.2d at 130. Peters has not met

his burden to show that he was prejudiced by the amended information. Nor has he shown

deficient performance as nothing in the record suggests that counsel needed additional time to

investigate with regard to the amended information. As discussed above, the State adequately

gave Peters notice that the escape from community custody charge would be added. We reject

Peters’s claim.

                                       II. SURPRISE WITNESS

A.     Right to Due Process

       Peters claims the trial court erred by allowing CCO Corbett to testify even though he was

not on the State’s witness list. CrR 4.7(a)(1)(i) requires the prosecuting attorney to disclose to

the defendant, no later than the omnibus hearing, “the names and addresses of persons whom the

prosecuting attorney intends to call as witnesses at the hearing or trial.” CrR 4.7 is designed to

protect both parties from surprise. State v. Coe, 101 Wn.2d 772, 783, 684 P.2d 668 (1984).

Compliance with this requirement is not mandatory and in order to constitute grounds for

reversal, such failure to comply must result in either an abuse of discretion by the trial court or

some substantial injury to the defendant. State v. Jones, 70 Wn.2d 591, 595-96, 424 P.2d 665

(1967). Where the defendant fails to ask for a continuance, there is presumed to be a lack of




                                                  8
No. 46229-0-II



surprise and prejudice. State v. Schaffer, 63 Wn. App. 761, 767, 822 P.2d 292 (1991). The

State’s late disclosure of CCO Corbett as a witness did not mislead or surprise Peters. Peters did

not object to the late disclosure at trial but, rather, stated his belief that CCO Corbett’s testimony

posed no risk of prejudice. Peters knew the content of CCO Corbett’s testimony. The trial court

did not abuse its discretion in allowing the late disclosure and Peters was not unduly prejudiced

as a result. We reject Peters’s claim.

B.      Prosecutorial Misconduct

        Peters also claims the late disclosure of CCO Corbett as a witness constituted

prosecutorial misconduct. A defendant alleging prosecutorial misconduct bears the burden of

showing both improper conduct and prejudicial effect. Monday, 171 Wn.2d at 675. As

discussed more fully above, the late disclosure of CCO Corbett as a witness did not prejudice

Peters. Thus, Peters fails to meet his burden in establishing prosecutorial misconduct and we

reject his claim.

C.      Ineffective Assistance of Counsel

        Likewise, Peters’s claim that trial counsel rendered ineffective assistance by not opposing

CCO Corbett being called as a witness or requesting a continuance fails for lack of prejudice. In

order to establish actual prejudice here, Peters must show that the trial court likely would have

granted a motion to suppress CCO Corbett’s testimony. See State v. Higgs, 177 Wn. App. 414,

425, 311 P.3d 1266 (2013), review denied, 179 Wn.2d 1024 (2014). Here, Peters fails to show

that CCO Corbett’s testimony was inadmissible. As previously noted, the trial court has

discretion to permit the State to endorse the name of an additional witness during trial, where no




                                                  9
No. 46229-0-II



undue prejudice will result to the defendant. Jones, 70 Wn.2d at 595-96. The record reflects

neither that counsel needed additional time to prepare for CCO Corbett’s testimony, nor that

CCO Corbett’s testimony represented any kind of unfair surprise. In fact, during argument

outside the presence of the jury the State and defense counsel agreed that because CCO Corbett

would only be testifying to the fact that on January 6 he told Peters to report the following day,

and because defense counsel would have sufficient opportunity to talk to CCO Corbett prior to

him taking the stand, there would be no prejudice to Peters. We reject Peters’s claim.

                                   III. WITNESS IN COURTROOM

A.     Right to a Fair Trial

       Peters claims the trial court denied his right to a fair trial when it allowed Deputy Trout in

the courtroom during Officer Rollins’s testimony before Deputy Trout testified. Deputy Trout’s

arrival or presence in the courtroom other than during his testimony does not appear in the

record. Issues involving facts outside of the record are properly raised in a personal restraint

petition, rather than a SAG. Calvin, 176 Wn. App. at 26. Because this claim involves facts

outside of the record we do not consider it.

B.     Ineffective Assistance of Counsel

       Peters also claims trial counsel rendered ineffective assistance by not objecting to Deputy

Trout’s presence in the courtroom. “When an ineffective assistance claim is raised on appeal,

the reviewing court may consider only facts within the record.” Grier, 171 Wn.2d at 29. Under

Grier, therefore, we have no basis for evaluating the ineffective assistance of counsel claim, and




                                                 10
No. 46229-0-II



because the alleged flaw is not apparent in the record, we do not consider it. 171 Wn.2d at 29;

see also RAP 2.5.

                          IV. FAILURE TO REQUEST A KNAPSTAD6 MOTION

         Peters also claims trial counsel rendered ineffective assistance of counsel by failing to file

a Knapstad motion.7,8 Peters cannot prove that counsel’s failure to file a Knapstad motion

prejudiced him.

         To prevail on a Knapstad motion, the defendant must show that there are no material

facts in dispute and that the undisputed facts do not establish a prima facie case of guilt for the

crimes charged. 107 Wn.2d at 356. A trial court may dismiss a criminal charge under Knapstad

if the State’s pleadings and evidence fail to establish prima facie proof of all elements of the

charged crime. State v. Sullivan, 143 Wn.2d 162, 171 n. 32, 19 P.3d 1012 (2001).

         Here, the State presented sufficient evidence to support Peters’s convictions of second

degree robbery and escape from community custody. Thus, a Knapstad motion would not likely

have been granted, and therefore Peters’s ineffective assistance claim fails on this ground as

well.




6
  State v. Knapstad, 107 Wn.2d 346, 351-53, 729 P.2d 48 (1986) (trial court has inherent power
to dismiss a case not supported by sufficient evidence).
7
  Peters’s claims “[m]y attorney was deficient, because there was no strategic reason why council
[sic] did not file a[n] evidentiary hearing and/or Knapstad motion for lack of evidence against
me.” SAG at 5.
8
    The procedure to be followed for Knapstad motions is delineated by CrR 8.3(c).


                                                  11
No. 46229-0-II



        We affirm.

        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.




                                                                      Worswick, P.J.
 We concur:



 Melnick, J.




 Sutton, J.




                                                 12
