                                                                                                     IL. : D
                                                                                          COURT Of APPEALS
                                                                                                DIVISION 11

                                                                                          7.015 JUL 14    AM . 8: 55

                                                                                          STATE OF WASHINGTON

                                                                                          BY      01
                                                                                                 O       UTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II

    STATE OF WASHINGTON,                                                            No. 45129 -8 -II


                                            Respondent,


            V.



    TROY ALLEN FISHER,                                                     PART PUBLISHED OPINION




          JOHANSON, C. J. —               A trial court found Troy Fisher guilty of first degree murder for the

shooting of his father, Edward Fisher., Troyl appeals his conviction and sentence. In the published

portion of this opinion, we hold that the trial court did not abuse its discretion by declining to

reappoint counsel after Troy waived his right to counsel and re -asserted this right only after the

State had        rested   its   case.    In the unpublished portion of this opinion, we hold that the State


established the corpus delicti of the crime, that substantial evidence supports the trial court' s


finding that the murder was premeditated, and that the issues Troy raises in his statement of

additional grounds ( SAG) are unavailing. Finally, we hold that the trial court' s findings of fact do

not support its conclusion that Troy displayed an egregious lack of remorse and, therefore, the trial




1
    We   refer   to Edward and          Troy Fisher by   their first names for clarity,   intending no   disrespect.
No. 45129 -8 -II



court erred by imposing an exceptional sentence. Accordingly, we affirm the conviction, reverse

the sentence, and remand to the trial court for resentencing.

                                                     FACTS


         The State charged Troy with first degree premeditated murder or, in the alternative, first

degree   felony   murder with    the   predicate offense of     first degree robbery. For the same incident,


the State   also charged   Troy    with one count of second         degree   murder.   The State alleged four


aggravating factors, including that Troy demonstrated an egregious lack of remorse in the

commission of the offense, the only aggravating factor that is relevant to this appeal.

         Initially, the State   appointed   Gregg   Schile to   represent   Troy. Schile represented Troy for

over a year, filing several motions in his defense. Nevertheless, Troy requested new counsel. The

trial court then appointed Charles Buckley to represent Troy, but Troy became dissatisfied with

Buckley' s performance as well and demanded to represent himself.

         The trial court conducted an extensive colloquy with Troy regarding his wish to represent

himself.2 In doing so, the trial court noted that no issue of mental competency had been raised.

Notwithstanding the trial court' s repeated warnings that self -representation was not wise, Troy

insisted. The trial court granted Troy' s motion, finding that he knowingly and voluntarily waived

his right to counsel. The trial court appointed Buckley to serve as standby counsel, but it made it

clear to Troy that standby counsel would be available to assist with only technical matters and

would not represent him.




2
    Troy does not allege that this Faretta v. California, 422 U. S. 806, 95. S. Ct. 2525, 45 L. Ed. 2d
562 ( 1975),  colloquy was insufficient on appeal.

                                                        2
No. 45129 -8 -II



        Buckley subsequently moved to withdraw as standby counsel because Troy filed a

grievance against him with the Washington State Bar Association. The court permitted Buckley

to withdraw and appointed Bob Yoseph to serve as standby counsel. Troy also waived his right to

a jury trial.

        During the ensuing bench trial, following the State' s presentation of its case, the trial court

asked   Troy    whether   he   would give an   opening   statement, which   he had previously   reserved.   At


that point, Troy explained to the court that he could no longer represent himself. He asked the

court to have Yoseph assume responsibility for his defense. In response, the trial court expressed

concern regarding whether such a decision would even be possible because Yoseph had been

serving only     a   standby    role.   The trial court reminded Troy that although Yoseph had been

adequately prepared to serve as standby counsel, Yoseph would be unable to conduct Troy' s trial

defense absent additional preparation. Yoseph agreed that he would not have been prepared to go


forward because he had been advising on only technical matters.

        After reminding Troy about the extensive colloquy that it held when he initially requested

to represent himself, the trial .court concluded that Troy' s request to reappoint counsel was

untimely. The trial court did, however, grant a short continuance over the State' s objection so that

Troy could consult with his standby counsel over a weekend.

         When trial resumed, Yoseph moved for a mistrial over Troy' s objection, urging the trial

court to rule that Troy was both technically as well as mentally incapable of self r-epresentation




                                                         3
No. 45129 -8 -II



based   on   his ( Yoseph' s) interactions          with       Troy.3 But the trial court,refused to declare a mistrial

and required Troy to proceed with his case. Troy called few witnesses and rested his case a short

time later.


        The trial court found Troy guilty of first degree murder under both of the two charged

alternatives. The court also found Troy guilty of second degree murder, which it then merged for

purposes of     sentencing.       Finally, the court determined that Troy acted with an egregious, lack of

remorse in the commission of the crime. Troy appeals.

                                                               ANALYSIS


                                          REQUEST To REAPPOINT COUNSEL


         Troy argues that the trial court violated his constitutional right to counsel when it denied

his motion to order standby counsel to take over the defense of his case. We hold that Troy' s claim

fails because the decision to reappoint counsel is wholly discretionary with the trial court and the

trial court did not abuse its discretion in denying Troy' s request for reappointment of counsel as

untimely.


         The United States and Washington Supreme Courts recognize a constitutional right of


criminal defendants to waive assistance of counsel and to represent themselves at trial. Faretta v.


California, 422 U. S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 ( 1975); State v. Madsen, 168


Wn.2d 496, 503, 229 P. 3d 714 ( 2010). But once an unequivocal waiver of counsel has been made,




3 Yoseph also suggested, however, that the court should conduct some investigation into Troy' s
mental health generally. But Troy withdrew his claim that the trial court erred by failing to order
a competency evaluation after standby counsel placed Troy' s mental capacity in question. Wash.
Court   of Appeals oral argument,               State   v.   Fisher, No. 45129 -8 -II (Mar. 30, 2015), at 0 min., 26 sec.
through 0     min.,   32   sec. ( on   file   Accordingly, references herein to Troy' s mental health
                                              with court).

are related only to his ability to represent himself.

                                                                     rd
No. 45129 -8 -II



the defendant may not later demand the assistance of counsel as a matter of right because

reappointment is wholly within the discretion of the trial court. State v. DeWeese, 117 Wn.2d 369,

376- 77, 816 P. 2d 1 ( 1991).


          Although not required under either the state or federal constitutions, a trial court may

appoint standby counsel to aid a pro se defendant at the defendant' s request. State v. McDonald,

143 Wn.2d 506, 511, 22 P. 3d 791 ( 2001).                Our Supreme Court "has defined standby counsel' s role

as not   necessarily representing the defendant but              as   providing technical information." McDonald,


143 Wn.2d at 511; See also State v. Bebb, 108 Wn.2d 515, 525, 740 P. 2d 829 ( 1987).


          Here, Troy contends that because Yoseph admitted that he was not prepared to take over

Troy' s representation at a moment' s notice, he was therefore prejudiced because preparedness to

assume responsibility for a defense is a prerequisite to serve as standby counsel. Troy argues that

his "   inability" to represent himself and his request for re -appointment of counsel compels the

conclusion that reappointment of counsel was necessary. Br. of Appellant at 27. In support of this

proposition,      Troy   relies on      two   cases:   McDonald     and   Bebb. But neither case is analogous to the


facts here.


          In McDonald, our Supreme Court framed the issue presented as whether an actual conflict


of interest between standby counsel and a defendant merits an assumption of prejudice justifying

reversal of      the trial   court' s   decision. 143 Wn.2d at 510. The McDonald court held that when the


trial court knows or should know of a conflict of interest between the defendant and standby

counsel,    it   must conduct an        inquiry   into the   nature and extent of   the   conflict.   143 Wn.2d at 513.


Failure to make such an inquiry and take appropriate action constitutes reversible error and




                                                                R
No. 45129 -8 -II



prejudice will        be   presumed.      McDonald, 143 Wn.2d             at   513.   Here, there is no alleged conflict of


interest between Troy and Yoseph, thus McDonald is inapposite.

             Troy also relies on Bebb to support his. argument. The issue in Bebb was whether the trial

court' s speculative statement that the attorney-client privilege did not apply to discussions between

a pro se defendant and standby counsel ultimately compelled Bebb to relinquish his constitutional

right   to   representation.       108 Wn.2d at 524. The court held that the record did not support Bebb' s


claims that the trial court' s statement interfered with his standby counsel' s legitimate functions

and that Bebb was ably represented by counsel throughout the trial. Bebb, 108 Wn.2d at 526.

             Nonetheless, Bebb is instructive concerning when it may be appropriate to reappoint

standby counsel. In that case, there were lingering concerns regarding Bebb' s mental competence

to stand trial and to represent himself. Bebb, 108 Wn.2d at 519. Before his trial began, the court


directed Bebb' s standby counsel to remain familiar with the case so that he could be prepared to

take    over      in the   event   Bebb   was no    longer   able    to   represent    himself   as   he   wished.   Bebb, 108


Wn.2d        at   518.     The court thereby conveyed its sentiment that termination of Bebb' s self -

representation        may indeed be. necessary in that          case.      In fact, before trial began, Bebb requested


that standby          counsel      be   appointed   as   co -counsel,      and    Bebb "    acquiesced      entirely" to "   able




representation by appointed. counsel" throughout trial. Bebb, 108 Wn.2d at 526.

             Here, unlike Bebb, the trial court expressed no concern as to whether Troy had the mental

capacity either to stand trial or to assert his right to self r-epresentation. Accordingly, because those

concerns were not present here as they were in Bebb, standby counsel was not instructed to be

ready    at a moment' s notice            to   assume    responsibility for       Troy' s   defense.       Thus, there was no


indication that termination of Troy' s self -representation was necessary here.


                                                                is
No. 45129 -8 -II



         To the contrary, the trial court here refused to declare a mistrial based on the assertion that

Troy was not technically or mentally able to represent himself, and the court agreed that standby

counsel was appointed to render technical assistance only. Although there were certainly concerns

about Troy' s technical, legal efficacy, there were no concerns about Troy' s mental capabilities.

And although the trial court did mention its reservations regarding Yoseph' s ability to represent

Troy at such a late stage in the trial, the court' s decision not to reappoint, counsel rested primarily

on   the fact that trial      was    nearly   over— not      that Yoseph    was   incapable     or   unprepared— and,




therefore, in the court' s view, the motion was untimely.

         Our decision in State        v.   Canedo Astorga, 79 Wn.        App. 518,     903 P. 2d 500 ( 1995),   offers an



apt comparison. There, the trial court granted Canedo- Astorga' s motion to represent himself, but


designated his     appointed       attorney   as   standby   counsel.   CanedoAstorga, 79 Wn. App. at 521- 22.

During    the trial,    Canedo- Astorga' s co- defendant moved for the reappointment of Canedo-

Astorga' s standby      counsel,      asserting that it      was "`   obvious by now [ Canedo- Astorga] cannot

adequately defend himself"'                Canedo Astorga, 79 Wn.          App.   at    522.   But Canedo- Astorga' s


standby counsel said that he had been serving only in a limited capacity and, therefore, was not

prepared to try the case absent a continuance. CanedoAstorga, 79 Wn. App. at 523.

         We held that the trial court did not abuse its discretion by declining to reappoint Canedo-

Astorga' s standby counsel because the request was made in the midst of a trial and the only reason

it was made was because of Canedo- Astorga' s own ineptitude, which was the very reason the trial

court originally tried to dissuade him from representing himself. Canedo Astorga, 79 Wn. App.

at 526. Canedo- Astorga also continued to have standby counsel to answer his questions. ' Canedo-

Astorga, 79 Wn.        App.   at   526.    In so holding, we said that " the request for reappointment should


                                                               7
No. 45129 -8 -II



be    granted absent reasons   to   deny.    In   some cases,   however, there   will   be   reasons   to   deny— for

example, that the request comes on the eve of or during trial, and will delay or interrupt the trial

if granted."   Canedo-Astorga, 79 Wn. App. at 525 ( emphasis added).

          The facts here   are similar.     Troy knowingly and voluntarily moved to represent himself.

After an extensive colloquy, the trial court granted his motion and appointed standby counsel.

After the State presented its entire case and rested, Troy then requested reappointment of counsel

due to his technical    inability    to   represent   himself.   The trial court rejected Troy' s motion as

untimely. Accordingly, we hold that Troy had not established that reappointment of counsel was

necessary and, therefore, the trial court did not abuse its discretion by denying Troy' s untimely

motion to reappoint standby counsel.4

          A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public


record in accordance with RCW 2. 06. 040, it is so ordered.


                                             ADDITIONAL FACTS


          Edward owned a business in Battle Ground where he occasionally employed Troy.

According to his family and friends, Edward always answered his phone or promptly returned

calls. He also assumed responsibilities f6r his elderly mother' s care, ordinarily visiting her Battle

Ground nursing home        several   times   a week.    Edward suffered from a medical condition which


required regular medication to control. The relationship between Troy and Edward was less than




4 Without fully developing his argument, Troy suggests that standby counsel was also ineffective
forfailing to be prepared to take over his defense on a moment' s notice. Because Troy fails to
show that reappointment of counsel was necessary as we have explained, we reject this argument.

                                                          3
No. 45129 -8 -II



amicable. Edward had a short temper and he blamed Troy' s lack of work ethic when his business

lost money and clients. Edward also told friends that he suspected that Troy had periodically stolen

money from him.

         In September 2011, Edward' s family members became alarmed when he failed to return

phone calls related to his mother' s care. Mary Jane Newman, Edward' s sister, explained that she

and Edward both regularly contributed financially to their mother' s care and that she ( Newman)

grew concerned when she returned from vacation and, after several attempts, was unable to reach


Edward.


         Newman. and    Troy' s   sisters   called   Troy inquiring   as   to Edward'   s   whereabouts.   Troy

explained that Edward had been gone since early August when he purportedly left the country after

reconnecting   with an old romantic     interest.    According to Troy, this former girlfriend, who was

quite wealthy, met Edward in Seattle where they then boarded her yacht intending to sail to

Germany. Troy also claimed that Edward left him in sole control of the business and its bank

accounts.   Edward also instructed Troy to clean and repair his house because Edward planned to

return sometime within the next year to sell the home.5

         Members of the Fisher family were skeptical of Troy' s version of the events. Aside from

the fact that his family had never known him to travel, Edward had also suffered a badly broken

leg in the weeks preceding his disappearance. Because of his injury, Edward had a difficult time

getting around, at times needing a wheelchair, walker, or cane. Furthermore, Edward had recently

been treated for   prostate cancer.    According to Newman, Edward was " pretty much confined to




5
    Troy lived with Edward in Edward' s home following Troy' s divorce.

                                                        9
No. 45129 -8 -II



his bed."   3A Report ofProceedings (RP) at 358. But most importantly to those concerned, Edward

would have never left the country for an extended period of time.without making arrangements for

his   mother' s care.   Thus, dissatisfied with Troy' s account of the events, Edward' s family filed a

missing person report.


          The Clark County Sheriff' s Department began an investigation, which revealed that there

were others who     harbored    suspicions as      to   what   happened to Edward. Edward had not missed a


rent payment for the shop he leased in approximately 10 years, but in September 2011, the shop

owners contacted Troy when they could not locate Edward, who had failed to pay.

          While Clark County detectives were questioning Edward' s neighbors, they observed a

large pickup truck backed up to the front of the home with a load of carpet and padding in the

back.


          During their investigation, detectives discovered that someone had withdrawn money from

Edward'     s accounts.   Edward'   s   business   account contained      approximately $ 12, 000 at the time he


disappeared.     Funds from the accounts had been used to purchase food, video games, and cell


phones among other things. This account activity appeared unusual.

          Detectives    searched   Edward' s   residence on       September 19.     There, detectives and police


officers discovered that carpet had been cut out of the hallway and living room. Additionally, two

holes had been cut into the home' s subfloor.


          Troy   arrived at   Edward'    s residence     during   the   search.   At Detective Todd Barsness' s


request, Troy provided a recorded statement regarding his knowledge of Edward' s disappearance.

Initially, Troy told Detective Barsness the same story that he had told to Edward' s concerned




                                                           10
No. 45129 -8 -II



family members. Troy claimed that Edward intended to meet a former girlfriend to travel with her

to Germany by yacht.

         Troy claimed that before Edward left, he blamed Troy for ruining his business and told

Troy    that he may    as well   take it   over.   According to Troy, Edward provided his bank account

information and personal identification numbers so that Troy could fix up the house and pay

Edward' s bills.     Troy explained that the carpet needed to be removed and replaced because of a

mouse infestation problem. Troy admitted having stolen some of Edward' s money " for some kids'

school clothes and stuff       like that." Ex. 91 at 58.


         When Detective Barsness began to press Troy for more information, Troy broke down in

an apparent sob and.claimed that Edward pulled a gun on him during an argument about work that

Troy had been doing on Edward' s home. Troy exclaimed,

         He    pulled a gun on me! .   He was pissed about the siding. He pulled a [ expletive]
         gun on me!      The   gun went off. ( sobbing)         He fell to the ground and I pulled the
         trigger again.. And I don' t know if the first shot killed him. It went in his head.
         Okay?

         And I don' t know why I did the second shot.

Ex. 91    at   73.   Troy admitted that he removed the carpet from the home because it contained

Edward' s blood. Troy confessed that he threw pieces of the bloody carpet into the woods in a rural

area.




         When asked what he had done with his father, Troy claimed that he took Edward' s body

out to a burn pile on the property and burned his remains. Troy told Detective Barsness that there

was nothing left of Edward' s body. But Katherine Taylor, a forensic anthropologist who examined

the   scene of   the alleged    burning,   found   no evidence of     human   remains on   the property.   Taylor




                                                           11
No. 45129 -8 -II



determined unequivocally that no body had been burned where Troy claimed. Edward' s body has

never been found.


           Law enforcement personnel located the carpet some distance away from the home. Tests

revealed that the carpet contained deoxyribonucleic acid (DNA) from Edward' s blood.


                                            ADDITIONAL ANALYSIS


                                                   I. CORPUs DELICTI


           Troy contends that the trial court violated his right to due process when it found him guilty

of first degree murder notwithstanding the fact that no evidence independent of his confession

establishes     the   mens rea of   the   crime.    We hold that sufficient independent evidence aside from


Troy' s confession established the corpus delicti of the crime. And we reject Troy' s argument that

the State must present proof of the mens rea of first degree murder in order to prove the corpus

delicti.


           Corpus delicti    literally   means "`   body   of   the   crime."'      State v. Aten, 130 Wn.2d *640, 655,


927 P. 2d 210 ( 1996) ( quoting 1 MCCoRMICK ON EvIDENCE §                           145 at 227 ( John W. Strong ed., 4th

ed.   1992)).    The purpose of the rule is to ensure that other evidence supports the defendant' s


confession and satisfies       the elements    of   the   crime.      State v. Dow, 168 Wn.2d 243, 249, 227 P. 3d


1278 ( 2010).         Where no other evidence exists to support the confession, a conviction cannot be


supported       by   a confession alone.     Dow, 168 Wn.2d             at   249.    But if there is independent proof


thereof, such a confession may then be considered in connection therewith and the corpus delicti

established by a combination of the independent proof and confession. Aten, 130 Wn.2d at 656.

           In determining whether there is sufficient independent evidence under the corpus delicti

rule, we review the evidence in the light most favorable to the State. State v. Brockob, 159 Wn.2d



                                                             12
No. 45129 -8 -II



311, 328, 150 P. 3d 59 ( 2006).          The independent evidence need not be sufficient to support a

conviction, but it must provide prima facie corroboration of the crime described in a defendant' s


incriminating statement. Brockob, 159 Wn.2d at 328. Prima facie corroboration of a defendant' s

incriminating statement exists if the independent evidence supports a logical and reasonable

inference of the facts sought to be proved. Brockob, 159 Wn.2d at 328 ( quoting Aten, 130 Wn.2d

at 656).


           In a homicide case, the corpus delicti consists of two elements the State must prove at trial:


 1) the fact of death and ( 2) a causal connection between the death and a criminal act. Aten, 130


Wn.2d      at   655.   The corpus delicti can be proved by either direct or circumstantial evidence. Aten,

130 Wn.2d at 655.


           Troy argues that the trial court violated his due process rights because the State failed to

present independent evidence of every element of the charged crime, including the mens rea

necessary to       establish guilt.    In support of this proposition, Troy relies on language from our

Supreme Court in Dow. There, in resolving an issue unrelated to this case, the Dow court said,

           The corpus delicti doctrine still exists to review other evidence for sufficiency, i.e.,
           corroboration of a confession. That is, the State must still prove every element of

           the crime charged by evidence independent ofthe defendant' s statement.

168 Wn.2d at254 Accordingly, in Troy' s view, the State' s independent evidence was insufficient

to establish the corpus delicti of the crime because no evidence demonstrated that Troy acted with

premeditated intent or that he committed the crime in furtherance of robbery.

           Division One of this court has already addressed and rejected this exact argument. In State

v.   Hummel, 165 Wn.          App.   749, 764- 65, 266 P. 3d 269 ( 2012), review denied, 176 Wn.2d 1023 .


 2013), Division One           concluded   that the   aforementioned   language from Dow    was "`    wholly



                                                        13
No. 45129 -8 -II



incidental"' to its decision   and was,    therefore, nonbinding dicta.              Moreover, the Hummel court


determined that the same argument Troy makes here misconstrues the cases on which he relies and

 ignores decades of case law explaining the application ofthe corpus delicti rule in homicide cases

in the State   of   Washington."   165 Wn. App. at 762. .

         Finally, the Hummel court noted that it could find no case that holds that evidence of the

mental state applicable to a specific degree of the alleged crime is necessary to establish that the

death   was a result of a criminal act.     165 Wn.   App.       at   763.       Similarly here, Troy cites no such

authority.     We adopt the reasoning applied in Hummel and reject Troy' s argument that the State

must present proof of the mens rea of first degree murder in order to meet the requirements of the


corpus delicti rule.


         Troy admits that the evidence supports an inference that Edward was dead and that Troy

had been involved in causing his father' s death. Thus, Troy admits that a death occurred, and we

need not summarize the evidence in the record that supports that conclusion. We then determine


whether the State' s independent evidence establishes that there was a causal connection between


the death and a criminal act.


         The evidence independent from Troy' s confession showed that Edward' s death was caused

by a criminal act. Detectives observed carpet and flooring being removed from Edward' s home,

pieces of which were      then found in   a rural area,   both   stained with        human blood. DNA obtained


from the blood       sample proved   that the blood was     Edward'          s   beyond any doubt.   This is strong

evidence of death by violence, which corroborates the statements Troy made as part of his

confession. We hold that the State presented sufficient evidence independent of Troy' s confession

to establish the corpus delicti of murder.



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No. 45129 -8 -II



                    II. SUBSTANTIAL EVIDENCE SUPPORTS PREMEDITATION ELEMENT


            Troy next argues that the evidence was insufficient to prove that he committed murder with

premeditation or with         the    intent to     commit    robbery.    We hold that substantial evidence supports


the trial    court' s   determination that          Troy    committed murder with premeditation.           We therefore


decline to decide whether he also committed murder with the intent to commit a robbery.

                                                   A. STANDARD OF REVIEW


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


the light most favorable to the prosecution 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).


            Following a bench trial, our review is limited to determining whether substantial evidence

supports the findings of fact, and if so, whether the findings support the conclusions of law. State


v.   Homan, 181 Wn.2d 102, 105- 06, 330 P. 3d 182 ( 2014). "                         Substantial   evidence"   is evidence


sufficient to persuade a fair-minded person of the truth of the asserted premise. Homan, 181 Wn.2d


at   106.    Unchallenged findings            of   fact   are verities on appeal..    Homan, 181 Wn.2d         at   106.   We


review challenges        to   a   trial   court' s conclusions of      law de   novo.   State v. Gatewood, 163 Wn.2d


534, 539, 182 P. 3d 426 ( 2008).


            Here, Troy does not assign error to any of the trial court' s many written findings of fact.

Accordingly, those findings of fact are verities for purposes of this appeal and this court need only

determine whether they support the trial court' s conclusions of law. Homan, 181. Wn.2d at 106.


                                                                  15
No. 45129441



                                                        B. PREMEDITATION


           To convict Troy of first degree premeditated murder, the State had to prove that Troy

caused     the, death     of   Edward     with premeditated      intent. RCW 9A. 32. 030( 1)(    a). "   Premeditation" is


  the deliberate formation of and reflection upon the intent to take a human life' and involves `the


mental process of...                deliberation, reflection, weighing or reasoning for a period of time, however

short."'     State   v.   Condon, 182 Wn.2d 307, 315, 343 P. 3d 357 ( 2015) ( internal quotation marks


omitted) (alteration           in   original) (   quoting State v. Pirtle, 127 Wn.2d 628, 644, 904 P. 2d 245 ( 1995)).

           Factors relevant to establish premeditation include motive, procurement of a weapon,


stealth, and method of               killing. State v. Aguilar, 176 Wn. App. 264, 273, 308 P. 3d 778 ( 2013),

review     denied, 179 Wn.2d 1011 ( 2014).                While these factors are particularly relevant, the presence

of all four is not a prerequisite to establish premeditation. See State v. Sherrill, 145 Wn. App. 473,

485, 186 P. 3d 1157 ( 2008) ( holding                  that although there was no evidence of motive, procurement

of a. weapon, or stealth presented, there was still sufficient evidence to establish premeditation).


           Both direct         and circumstantial evidence         may     establish premeditation.      Aguilar, 176 Wn.


App.   at   273.     And examples of circumstances supporting a finding of premeditation include

 motive, prior threats, multiple wounds inflicted or multiple shots, striking the victim from behind,

assault with multiple means or a weapon not readily available, and the planned presence of a

weapon at      the scene."           State v. Ra, 144 Wn. App. 688, 703, 175 P.3d 609 ( 2008).

           Here, the trial court determined that Troy acted with premeditation based in part on Troy' s

description     of   the   altercation       that led to Edward'      s   death.   Troy described reaching for the gun,

pushing it back against Edward, and shooting him in the back of the head. Troy then shot Edward

a second time after he had fallen.



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No. 45129 -8 -II



         The trial court also found that Troy had a motive to commit the crime. Edward' s business

was   Troy' s    only   source of    income.   According to Troy, Edward frequently either refused to pay

Troy for   his   work, or       failed to pay him for   weeks at a   time.   Troy struggled to pay bills and fell

 thousands behind" in child support. The evidence showed that Troy shot his father twice, with at

least some amount of time between the first and second shot and with at least one of the shots to


the back   of    Edward'    s   body. Considering the evidence in a light most favorable to the State, we

hold that a rational fact finder could determine that Troy committed murder with premeditated

intent. Accordingly, substantial evidence supports the trial court' s finding regarding premeditated

intent and that finding supports the court' s conclusion that the State established the element of

premeditation beyond a reasonable doubt.


                                        III. EGREGIOUS LACK OF REMORSE


         Troy next challenges his exceptional sentence, arguing that substantial evidence does not

support the trial court' s findings and that the findings do not support its conclusion that he acted


with an egregious lack of remorse. We hold that the trial court' s finding that Troy concealed the

victim' s body does not support its conclusion that Troy acted with an egregious lack of remorse

because concealment of a body, in and of itself, cannot support the egregious lack of remorse

aggravating factor.

         Whether a defendant acted with an egregious lack of remorse is a statutory aggravating

factor that     can     form the basis for     an   exceptional   sentence   outside   the   standard range.   RCW


9. 94A.535( 3)( q).       We review the appropriateness exceptional sentences by asking three questions

applying three accompanying standards of review:

                         1) Are the reasons given by the sentencing judge supported by evidence
         in the   record?       As to this, the standard of review is clearly erroneous.

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                        2) Do the          reasons    justify    a   departure from the       standard range?.     This
             question is reviewed de novo as a matter of law.
                        3) Is the      sentence      clearly too      excessive or     too lenient?   The standard of
             review on this last question is abuse of discretion."

State   v.   Law, 154 Wn.2d 85, 93, 110 P. 3d 717 ( 2005) ( quoting                       State v. Ha' mim, 132 Wn.2d 834,

840, 940 P. 2d 633 ( 1997)); RCW 9. 94A.585( 4).


             Here, the trial court made the following finding of fact regarding the egregious lack of

remorse aggravator:




                     4. 3 The third factor was that the defendant demonstrated or displayed an
             egregious       lack    of remorse.       This under RCW 9. 94A.535( 3)( q) is now a named
             statutory factor. There are a number of factors that are considered in this regard,
             and the court must find substantial and compelling factors in order to find this
             aggravating factor. The court did find that this aggravated factor had been shown.
             The defendant, in his statement, indicated that he dragged his father outside, put
             him   on a      trash   pile, and   disposed       of   his
                                                       body. He was observed on surveillance
             video purchasing charcoal and fire logs, concealing his crime to exploit his father' s
             financial       resources.       The court found that these ' circumstances constituted an
             egregious lack of remorse.


Clerk' s Paper          at    824- 25.      This is the only finding the trial court made with respect to the

aggravating factor.

             Here, substantial evidence in the record supports the facts cited in the trial court' s finding

and, therefore, we focus our inquiry on' the second question, that is, whether these reasons justify

an upward          departure from the            standard     sentencing         range as a matter of   law.   Our courts have


addressed factually similar circumstances and have concluded that concealment of a body in a

homicide        case,    in    and    of   itself,   cannot   be     used   to   support an exceptional    sentence.   State v.


Crutchfield, 53 Wn.             App.       916, 926, 771 P. 2d 746 ( 1989),           overruled on other grounds by State v.

Chadderton, 119 Wn.2d 390, 832 P. 2d 481 ( 1992).                                Allowing concealment to be an aggravating

factor would punish a defendant for not disclosing the location of the victim' s body. Crutchfield,


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No. 45129 -8 -II



53 Wn. App. at 926. An accused who refuses to reveal the location of a murder victim' s body may

do so to prevent self-incrimination, which defendants have a constitutional right to avoid.


Crutchfield, 53 Wn. App. at 926. And "the exercise of a constitutional right should not be used as

a reason    for departure from the         standard range."        Crutchfield, 53 Wn. App. at 927.

          Moreover, an exceptional sentence is appropriate only when the circumstances ofthe crime

distinguish it from other crimes of the same category. State v. Pennington, 112 Wn.2d 606, 610,

772 P. 2d 1009 ( 1989).       And it is neither " egregious" nor uncommon for a culpable party to conceal

evidence of guilt in this context.


          While Troy did exploit Edward financially, other cases where ourcourts have found an

egregious lack of.remorse demonstrate that the facts here do not support such a conclusion. For

instance the State     relies   entirely   on   State   v.   Wood, 57 Wn.     App.   792, 790 P. 2d 220 ( 1990). There,


we upheld an exceptional sentence where Wood showed an egregious lack of remorse following

her husband' s      murder, which she        helped     plan.     Wood, 57 Wn. App. at 795, 798.

          We considered Wood' s total indifference to the death as she traveled with another manjust


one week after the murder and established a residence with still another man three weeks after the


murder.     Wood, 57 Wn. App at 795. Wood often joked about her husband' s death and taunted the

man who shot her husband about the shooter' s sensitivity to the sound her husband made as he

died.    Wood, 57 Wn. App. at 795.

          Other Washington         cases are also       instructive.     In State v. Zigan, 166 Wn. App. 597, 599,

603, 270 P. 3d 625 ( 2012), a recent vehicular homicide case, Division Three of this court upheld a


trial   court' s   finding   that Zigan displayed            an   egregious   lack   of remorse.     There, immediately

following the fatal     accident,   Zigan       asked   the victim' s   husband if he   was "`   ready to bleed."'   Zigan,



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No. 45129 -8 -II



166 Wn.        App.   at   602.    Zigan smiled and laughed while talking with police officers at the scene,

later j oking with one of the officers that the officer should not ride a motorcycle because " he might

get   killed   by [ Zigan]        too.". Zigan, 166 Wn.        App.   at   603.    Zigan also joked with other inmates,


imploring them not to get caught if they hit a motorcyclist. Zigan, 166 Wn. App. at 603.

         Another court found a defendant' s lack of remorse sufficiently egregious where he bragged

and laughed about a murder he committed. State v. Erickson, 108 Wn. App. 732, 739, 33 P. 3d 85

 2001). Erickson           also mimicked    the   victim' s reaction       to   being   shot,   told   a   fellow inmate that "[ he]


blew [ the     victim' s]    guts right out,"     and   told   police   that he felt      no remorse.          Erickson, 108 Wn.


App. at 738- 39.

          Despite the State' s argument that Troy showed similar indifference in the weeks following

his father' s death, the trial court made no findings regarding Troy' s alleged lack of concern. Aside

from Troy' s attempt to conceal Edward' s body, the trial court found that Troy subsequently

exploited Edward only financially. Although this fact may establish that Troy did not appear to

be particularly remorseful, a lack of remorse must be of an aggravated or egregious nature to

support the aggravating factor. State v. Ross, 71 Wn. App. 556, 563, 861 P.2d 473 ( 1993).

          The facts here do not rise to the level of those in Zigan, Erickson, or Wood and do not


establish      that   Troy   acted with an egregious       lack   of remorse.           Accordingly, we hold that the trial

court' s finding does not support its conclusion that the evidence established the egregious lack of

remorse     aggravating factor.          The trial court erred as a matter of law by imposing an exceptional

sentence on this basis.




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No. 45129 -8 -II



                                                         IV. SAG ISSUES


           Troy    appears   to   make     five   arguments    in his SAG         pursuant   to RAP 10. 10.    We reject these


arguments either because they lack merit or because the record is insufficient to allow review.

           First, Troy argues that he was taken into custody with no authority of law, without a lawful

search warrant or probable cause                  for   an arrest.        This claim lacks merit because he voluntarily

accompanied         Detective Barsness to his              office    and       willingly   provided   a   statement.   As Troy

approached Edward' s residence on the day police executed the search warrant, detectives informed

Troy that they had a search warrant for the house and asked whether he would provide a statement,

a request to which he agreed. Troy fails to show how Detective Barsness needed probable cause

to make this request because Troy was not under arrest until he confessed to the crime. Troy also

refers    to the   search warrant as " unconstitutional,"             but advances no argument as to why the warrant

was      constitutionally deficient.          The trial court also ruled that the warrant was valid after it


conducted a " four corners" analysis. Thus, his first argument fails.


           Second, Troy contends that the presiding trial judge refused to sign his subpoenas duces

tecum     and   then lied    about    having done        so.   The record reveals that the trial court was willing to

sign     any   subpoenas     that   were presented.        The court also referenced the fact that it had granted a


motion for a subpoena duces tecum. Thus, the record does not support Troy' s second claim and it

fails.


           Third, Troy asserts that the prosecutor gave testimony. To support his argument, Troy says

only, "[ The] Prosecutor            gave   testimony." SAG           at   3.   Troy does not inform the court as to how or

in what manner the prosecutor testified, and we are not required to search the record on his behalf.

RAP 10. 10( c).       Accordingly, we do not consider this argument.


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No. 45129 -8 -II



           Fourth, Troy asserts that he received ineffective assistance of counsel when his first two

appointed attorneys did not speak to witnesses, refused to collect evidence, and waited too long to

examine certain records. For Troy to prevail on an ineffective assistance of counsel claim, he must

show both deficient performance and resulting prejudice; failure to show either prong defeats this

claim.      State      v.   McNeal, 145 Wn.2d 352, 362, 37 P. 3d 280 ( 2002).                                To establish deficient


performance, a defendant must show that counsel' s performance fell below an objective standard

of reasonableness.             McNeal, 145 Wn.2d                 at   362.   To establish prejudice, a defendant must show


that but for counsel' s unprofessional errors, the result of the proceeding would have been different.

Strickland       v.   Washington, 466 U.S. 6%                   694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).


           Here, we cannot address Troy' s claim because he raises issues that require evidence or

facts   not     in the existing        record.       Without identifying specifics, Troy argues that his formerly

appointed        attorneys       did      not   speak      to     certain     witnesses,    did not collect certain evidence


 photographs and video               footage),       and waited too long to examine records that have since been

destroyed.        Each of these contentions relies on matters outside the record before this court and .


when a defendant wishes to raise such issues, the proper. means of doing so is through a personal

restraint petition.          State   v.   McFarland, 127 Wn.2d 322; 335, 899 P. 2d 1251 ( 1995).                         Further, he


does not explain how his pretrial attorneys' actions affected the result of the trial.


           Fifth, Troy claims that a Brady violation occurred because the prosecutor did not disclose
                                           6
a   deal   she made         for " Jason"       nor   did   she   disclose     Troy' s   sister' s criminal   history.   SAG   at   3.   In


Brady      v.   Maryland, 373 U. S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 ( 1963), the United States


Supreme Court held that state prosecutors violate a defendant' s right to due process when evidence




6 " Jason" is likely a reference to Jason Cook, one of the State' s witnesses.
                                                                         22
No. 45129 -8 -II



favorable to   a   defendant is   not   disclosed. To   show   that   a   Brady violation occurred, ( 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. In re Pers. Restraint ofBrennan, 117 Wn. App.

797, 805, 72 P. 3d 182 ( 2003).


        Here, Troy' s claim fails because he fails to establish how prejudice resulted from the

alleged withholding of a deal with Jason or his sister' s criminal history. Even if this court were to

assume, without deciding, that this evidence was favorable to Troy and was withheld improperly,

Troy makes no argument as to how his case was prejudiced by the withholding. Prejudice exists

only if there is a reasonable probability that had the evidence been disclosed, the result of the

proceeding     would    have been different. In    re   Brennan, 117 Wn.           App.   at   805.   Troy has not shown

any such probability.


        Accordingly, we affirm Troy' s conviction, but remand for resentencing.



                                                               J;DNSON, C. J.
 We concur:




 WO , SWICK, J.


                    a




 MELNICK, J.




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