                                                                                                          F ED
                                                                                                   COURT OF APP ALS
                                                                                                      01VISIOi.a I'
                                                                                               2013 SEP 17 AM 8: 79

                                                                                               S

                                                                                               BY




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II

STATE OF WASHINGTON,                                                     No. 42783 4 II
                                                                                   - -


                                 Respondent,                    ilk281013"MIXOM016M
                                                                         U


          V.




MICHAEL DAVID MARTIN,




          BJORGEN, J. — jury returned verdicts finding Michael David Martin guilty of attempted
                      A

first degree theft, first degree malicious mischief, second degree criminal trespass, and third

degree driving while license suspended. Martin appeals his convictions, asserting that ( )
                                                                                       1 his

defense counsel provided ineffective assistance by failing to move to exclude the testimony of a

State's witness, and (2) did not consent to have a pro tempore judge preside over his trial. We
                       he

affirm.


                                                FACT


          Byron Brown is the owner of a rock crushing company in Cowlitz County, Washington.

On the    morning   of July 30, 2011, Brown drove to his   gravel pit   and   saw a   person   standing
No. 42783 4 II
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underneath his rock crusher.. person came out from beneath the rock crusher, emptied a
                            The

backpack, and left on foot. Brown looked around to see if there was anyone else on his property,
  5
saw no one, and then drove to his house and had his wife call 911. As Brown was returning to

the gravel pit,he saw a vehicle parked on a road adjacent to his property. Believing that the

vehicle might be related to the unauthorized person on his property, Brown took a photograph of

the vehicle's license plate. Brown then drove toward a trail leading to his gravel pit and saw

Martin carrying a backpack and a bicycle. Brown told Martin to stop, but Martin refused. After

Brown pulled out a pellet gun, Martin told Brown his first name, what road he lived on, and that

the vehicle belonged to his mother. Martin then walked to the vehicle and drove away.

       Brown followed Martin as he drove away. Martin eventually stopped, got out of the

vehicle, begged Brown to let him go, and told Brown, I wasn't stealing from you this time."
                                                     "

Verbatim Report of Proceedings (VRP)at 43. Cowlitz County Sheriff's Deputy Jordan Spencer

arrived at the gravel pit and found cut wire and a pair of wire cutters underneath Brown's rock

crusher. When officers questioned Martin, he admitted to being on Brown's property but stated

that he was on a nature hike: Martin also admitted to driving his -
                                                                  mother's vehicle while his -

license was suspended. The officers found tools inside of the vehicle that Martin had been

driving.

       On August 3,2011,the State charged Martin with attempted first degree theft, first

degree malicious mischief, second degree criminal trespass, and third degree driving while

license suspended. Commissioner Dennis Maher, acting as a superior court judge pro tempore,




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No. 42783 4 II
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presided over Martin's trial. Before starting trial,Martin, his defense attorney, and the State

signed a form agreeing to allow Commissioner Maher to preside over the trial. Prior to starting

jury selection, the trial court had the following discussion with Martin:

                Trial court]: This is the matter of State of Washington v.Michael David
        Martin, 11 - -
                    1 00786 1. It is a matter that we actually began yesterday and we
                             -
        declared  a mistrial. So this is day one of the trial. So I have indicated to the

        attorneys that we probably needed to put on the record many of the issues that we
        had discussed yesterday in our pre trial yesterday. So, Mr. Martin, as I indicated
                                            -
        to you yesterday, I' hearing this matter as a judge pro tem. To do that you need
                            m
        to agree to my appointment to hear this matter in that capacity. Have you had an
        opportunity to discuss that with your attorney?
                Martin] :Yes, sir.
                Trial court] : And on the record are you agreeing for me to hear this
        matter as a judge pro tem?
                Martin] :Yes, sir.
               Trial court]:And I have a document that purports to have the signature of
        both attorneys and you. Is that your signature on this document?
                Martin] :Yes, it is.
               Trial court]: And you gave that of your own free will?Nobody forced
        you to do that?
                Martin] :Yes.

VRP at 1 -2.


        At trial,the State called Deann Nelson, the buy back manager for Waste Control in
                                                        -

Longview, Washington, as its final witness. Nelson testified about the value of scrap metal,

including the buy back price Waste Control pays for scrap copper wire. Nelson also testified
                  -

that Martin regularly sold scrap metal to Waste Control, but could not state what types of metal

Martin had sold to the company.

        Martin testified in his own defense. He admitted to being on Brown's property, but

stated that he was on the property to take a nature hike. Martin also admitted that he had seen

the no trespassing signs on Brown's property, but that he chose to ignore them. Additionally,

Martin admitted to driving without a license. He denied that he attempted to steal anything from

                                                  3
No. 42783 4 II
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the gravel pit and stated that he never went near Brown's rock crusher. The jury returned

verdicts finding Martin guilty of all the State's charges. Martin timely appeals his convictions.

                                                 ANALYSIS


                               I. INEFFECTIVE ASSISTANCE OF COUNSEL


       Martin first asserts that his defense counsel provided ineffective assistance by failing to

move to exclude Nelson's testimony, arguing that the testimony was not relevant. We disagree.

       We review ineffective assistance of counsel claims de novo. State v. Binh Thach, 126

Wn. App. 297, 319, 06 P. d 782 (2005).To prevail on an ineffective assistance of counsel
                 1     3

claim, Martin must show both that ( )
                                  1 counsel's performance was deficient and (2) deficient
                                                                              the

performance prejudiced him. Strickland v. Washington, 466 U. .668, 687, 104 S. Ct. 2052, 80
                                                           S

L.Ed. 2d 674 (1984);
                   State v. Brockob, 159 Wn. d 311, 344 45, 150 P. d 59 (2006).
                                           2            -        3

Performance is deficient if,after considering all the circumstances, it falls below an objective

standard of reasonableness. State v. McFarland, 127 Wn. d 322, 334 35, 899 P. d 1251 (1995).
                                                      2            -        2

Prejudice results if the outcome of the trial would have been different had defense counsel not

rendered deficient performance. McFarland, 127 Wn. d at 336 37 We strongly presume that
                                                 2          -

counsel is effective and the defendant must show the absence of any legitimate strategic or

tactical reason supporting defense counsel's actions. McFarland, 127 Wn. d at 337. To rebut
                                                                       2

this presumption,the defendant bears the burden of establishing the absence of any
                                                   "

conceivable   legitimate   tactic   explaining   counsel's   performance. "' State v. Grier, 171 Wn. d 17,
                                                                                                   2

42, 246 P. d 1260 (2011), remand, 168 Wn. App. 635, 278 P. d 225 (2012)quoting State v.
         3              on                               3              (

Reichenbach, 153 Wn. d 126, 130, 101 P. d 80 (2004)).
                   2                  3            Under ER 401, Relevant evidence'
                                                                 "`

means evidence having any tendency to make the existence of any fact that is of consequence to


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No. 42783 4 II
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the determination of the action more probable or less probable than it would be without the

evidence."


       In asserting that his attorney rendered ineffective assistance, Martin does not identify any

specific testimony by Nelson to which his attorney should have objected. Instead, Martin

appears to argue that his attorney was ineffective for failing to object to the " ntirety of Ms.
                                                                                e

Nelson's testimony"because nothing contained in Nelson's testimony was relevant to any issue

at trial. Br. of Appellant at 10. However,Nelson's testimony regarding the value of scrap

copper wire was relevant to establish the value of the items that the State alleged Martin

attempted to steal from Brown's gravel pit,which value is an essential element that the State was

required to prove to convict Martin of attempted first degree theft.' Additionally,Nelson's
testimony regarding Martin's previous sales of scrap metal to Waste Control was relevant to

show that Martin intended to deprive Brown of the copper wire contained in Brown's rock

crusher,which is also an essential element that the State was required to prove to convict Martin
of attempted first     degree theft    Because Martin fails to demonstrate that Nelson's testimony was

not relevant, his assertion that his counsel was ineffective for failing to object to Nelson's

testimony on relevance grounds is without merit.




 Former RCW 9A. 6.2009)provides that a person is guilty of first degree theft if he or
               030 (5                                                             "
she commits theft of: a)
                      ( Property or services which exceed(s) thousand dollars in value
                                                           five
       Emphasis added.)

2 Martin does not assert on appeal that the trial court would have sustained an objection to this
testimony under ER 404( ) thus, we do not address that issue.
                      b and,
3
  RCW 9A. 6.
        a) that theft"means "[ o wrongfully obtain or exert
        020(   l)(
               5        provides       "              t]
unauthorized control over the property or services of another or the value thereof, with intent to
deprive   him   or   her   of such property   or   services."Emphasis
                                                              (         added.)
No. 42783 4 II
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       Moreover, even if Martin could demonstrate that the trial court would have sustained an

objection to Nelson's testimony on relevance grounds, he cannot overcome the strong

presumption that his counsel was effective because his counsel had a legitimate tactical reason

for not objecting to Nelson's testimony. Defense counsel argued at closing that, based on

Nelson's testimony regarding the value of scrap copper wire, Martin could not have taken a

substantial step toward the commission of first degree theft because he would have had to steal

over 833 pounds of copper in order to reach the value element of former RCW 9A. 6.
                                                                            030
                                                                              5

2009).Absent Nelson's testimony, the jury would have been left only with Brown's testimony

valuing his damaged copper wire at $ 6, 00. Accordingly, Martin's attorney had a legitimate
                                   1 0

tactical reason for not objecting to Nelson's testimony and,thus, Martin fails to establish

ineffective assistance of counsel.

            II. WAIVER OF RIGHT TO HAVE AN ELECTED JUDGE PRESIDE OVER TRIAL

       Next,Martin asserts that his convictions must be reversed because the record fails to

establish that he knowingly and voluntarily consented to have a judge pro tempore preside over

his trial. The "
               record,however, clearly shows that Martin consented, both and in writing, - -

to have a judge pro tempore preside over his trial. Thus, his argument lacks merit and we affirm
his convictions.


        Article IV,section 7 of the Washington State Constitution provides that members of the

bar may preside over trials in superior court as judges pro tempore when " greed upon in writing
                                                                         a

by the parties litigant or their attorneys of record, and [the bar member] is approved by the court
and sworn to try the case."RCW 2.8.similarly provides that bar members may preside
                               180
                                 0

over trials as judges pro tempore when agreed on in writing by the parties or their attorneys of

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No. 42783 4 II
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record. Although article IV,section 7 of our.State constitution and RCW 2.8.provide that
                                                                        180
                                                                         0

the parties "or their attorneys of record"may provide written consent to have a judge pro

tempore preside over trial, an attorney cannot waive his or her client's right to have the case

presided over by an elected superior court.udge over the client's objection. State v.Sain, 34
                                          j

Wn.App. 553, 557, 663 P. d 493 (
                       2        1983)citing
                                      (           CONST.,
                                                        art. IV, §7).

       In Sain, 34 Wn. App: at 554 55,a criminal defendant's attorney orally consented to trial
                                   -

by a judge pro tempore without the defendant's consent and then withdrew from the case. The

defendant's new attorney stipulated to a trial by a judge pro tempore but " ith the understanding
                                                                          w

that]the question of the defendants' consent would be raised the following morning before

trial."
      Sain, 34 Wn.App. at 555. The following morning, the defendant refused to consent to

have a judge pro tempore preside over his trial. Sain, 34 Wn.App. at 555. Despite the

defendant's explicit refusal to consent, however, the judge pro tern declined to recuse himself

and proceeded to trial. Sain, 34 Wn. App. at 555. The Sain court•
                                                                reversed the defendant's

conviction, holding that the judge pro tempore lacked authority to preside over the trial without

the parties' consent. Sain, 34 Wn. App: at 557.
             -        -

       In State v. Osloond, 60 Wn. App. 584, 585, 805 P. d 263 (1991), defendant's attorney
                                                       2             the

entered a written stipulation consenting to a judge pro tempore presiding over trial. On appeal,

the defendant asserted that his attorney's written consent was invalid because the record failed to

show that he personally consented to have a judge pro tempore preside over his trial. Osloond,

60 Wn.App. at 585. The Osloond court held that the attorney's stipulation was sufficient to

waive the defendant's right to have an elected superior court judge preside over trial, despite the

absence of any showing that the defendant personally gave his consent. Osloond, 60 Wn. App.


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No. 42783 4 II
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at 586 87. In so holding,the court relied on the express language of article IV,section 7 of the
       -

Washington State Constitution and RCW 2.8.allowing an attorney to consent to a judge
                                      180,
                                       0

pro tempore on behalf of his or her client. Osloond, 60 Wn.App. at 586. The Osloond court

distinguished Sain, noting that unlike the defendant in Sain, Osloond did not assert that his

attorney entered into a stipulation against his express objection. Osloond, 60 Wn. App. at 586.

       As in Osloond, Martin does not argue that his attorney consented to have a judge pro

tempore preside over trial against his express objection. Rather, Martin acknowledges that he

consented to the judge pro tempore presiding over his trial both orally and in writing. Martin

argues, however, that his oral and written consent was insufficient to waive his right to a trial

before an elected superior court judge because the trial court failed to inform him on the record

of this right. In support of his argument, Martin cites to several cases discussing the requirement

that a trial court enter into a colloquy with the defendant to assure that the defendant is properly

informed of certain constitutional rights before it may find the defendant knowingly, intelligently

and voluntarily waived those rights. However, the cases Martin cites in support of his argument

address a defendant's waiver ofthe right to counsel,waiver of the right to a jury trial,and waiver
                             -

of certain rights by entering a guilty plea. These cases do not assist Martin as they do not

address the waiver of a trial by an elected superior court judge, which by the plain language of

article IV,section 7 and RCW 2.8.may be waived by the parties' attorneys of record.
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Following Osloond, Martin's written    and oral consent to have   a   judge   pro   tempore preside   over
No. 42783 4 II
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his trial is more than sufficient to effectuate a waiver of his right to have an elected superior

court judge preside over his trial. Accordingly, we affirm Martin's convictions.

       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

040,
2.6.it is so ordered.
 0




                                                    BJ    GE ,

We concur:




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