                                                                         FILED
                                                                       APRIL 2, 2019
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

STATE OF WASHINGTON,                         )
                                             )         No. 35497-1-III
                     Respondent,             )         (consolidated with
                                             )         No. 35620-5-III)
       v.                                    )
                                             )
BENJAMIN ALEXANDER HANKINS,                  )
                                             )
                     Appellant.              )         UNPUBLISHED OPINION
                                             )
                                             )
In the Matter of the Personal Restraint of   )
                                             )
BENJAMIN A. HANKINS,                         )
                                             )
                     Petitioner.             )

       KORSMO, J. — By appeal and personal restraint petition (PRP), Benjamin Hankins

challenges his conviction for second degree trafficking in stolen property. We affirm the

conviction, remand for the court to review the legal financial obligations (LFOs), and

dismiss the PRP.
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


                                          FACTS

       Mr. Hankins was charged in the Stevens County Superior Court with one count of

first degree trafficking in stolen property on October 8, 2016. The charge arose after one

of seven Sea-Doo watercraft belonging to Ronald Reynolds was stolen from the yard of

his Spokane residence. Seeing the stolen machine listed for sale online three days later,

Reynolds made an appointment to meet the seller. Police arrived with Reynolds and

arrested Hankins when he showed up with the stolen watercraft.

       The matter proceeded to jury trial. When Reynolds reported the stolen watercraft

to Spokane police, he also reported the machine’s registration number. The machine

recovered from Hankins did not have a registration number, but Reynolds identified it as

the machine taken from his yard. He also testified that the machine model was a Sea-

Doo Bombardier. However, pictures of the machine’s motor compartment contain the

words Yamaha and Bombardier. The charging document identified the stolen property as

a “1990 Yamaha Bombardier” jet ski. Clerk’s Papers (CP) at 1.

       Mr. Hankins testified in his own defense that he had bought the watercraft in

Spokane from a man named Brown for $250; the machine had not had any registration

number on it when he purchased it. The court instructed the jury on both first and second

degree trafficking in stolen property. In each instance, the instruction required the jury to

find that Hankins had trafficked in “stolen property” without describing the property.



                                              2
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


       The jury convicted Mr. Hankins of trafficking in stolen property in the second

degree. At sentencing, both counsel agreed that Mr. Hankins had three prior adult felony

convictions, including one from Oregon, that resulted in an offender score of three.

Report of Proceedings (RP) at 353. No comparability analysis was conducted for the

Oregon offense. The court imposed a standard range sentence using three for the offender

score. Although counsel was appointed to represent him in the trial court, Mr. Hankins

did not assert at sentencing that he was indigent and told the trial judge that he had a “very

successful business.” RP at 372, 376. The court imposed $1,100 worth of LFOs,

including discretionary costs for appointed counsel and a booking fee. CP at 162-163.

       Mr. Hankins timely appealed to this court. Notwithstanding his statement, he

sought, and received, appointed counsel to represent him on appeal. He subsequently

filed a CrR 7.8 motion for a new trial based on newly discovered evidence. The trial

court transferred the case to this court for consideration as a PRP. We accepted the

transfer and consolidated the PRP with the direct appeal. His appellate counsel was

appointed to file a reply brief in the PRP. A panel then considered the case without

hearing argument.

                                        ANALYSIS

       The appeal and the PRP raise issues that focus on the evidence. We consider first

a challenge to the sufficiency of the evidence to support the jury’s verdict, before turning

to a claim that the elements instruction was improper. We then consider whether counsel

                                              3
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


rendered ineffective assistance and whether newly discovered evidence justifies a new

trial. Finally, we consider a request for relief from LFOs and appellate costs.

       Evidentiary Sufficiency

       Mr. Hankins argues on appeal that the evidence did not support the jury’s verdict

because the State did not prove that he trafficked in a stolen 1990 Yamaha Bombardier.

It did not have to do so. The evidence supports the jury’s verdict.

       Well settled standards govern our review of this issue. Evidence is sufficient to

support a verdict if the jury has a factual basis for finding each element of the offense

proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628

(1980). The evidence is viewed in the light most favorable to the prosecution. Green, 94

Wn.2d at 221. Appellate courts defer to the trier-of-fact on issues of conflicting

testimony, credibility of witnesses, and the persuasiveness of the evidence. State v.

Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Under Jackson, the question is could

the trier of fact find the element(s) proved?

       The short answer to Mr. Hankins’ argument is that the jury convicted him of

recklessly trafficking in stolen property. RCW 9A.82.055. It was not asked, and was not

required, to find that he trafficked in a specific piece of stolen property. Since Mr.

Reynolds identified the watercraft that Mr. Hankins tried to sell as the property stolen



                                                4
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


from Reynolds in Spokane, the evidence supported the jury’s verdict. The evidence was

sufficient.

       Elements Instruction

       Mr. Hankins also presents, as an alternative argument, the converse claim that the

elements instruction should have reflected the specific piece of property alleged in the

charging document. He cites no relevant authority for the proposition that each fact in a

charging document must be incorporated into the elements instruction.

       To make his argument, Mr. Hankins combines two disparate legal principles. The

first is the law of the case doctrine as applied to jury instructions. In Washington, surplus

allegations only become an additional element of the case when they are included in the

jury’s instructions. State v. Hickman, 135 Wn.2d 97, 102-103, 954 P.2d 900 (1998).

Thus, if the State undertakes to prove a specific fact by way of the elements instruction,

the evidence must support that factual determination even if the fact is not an element of

the offense. Id. at 101-105. This is a specific application of the law of the case doctrine.

Id. at 102.

       The second principle involves the notification function of a charging document.

The purpose of a charging document is to provide notice to the defendant of the charge

against him and its factual basis. State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854

(1987). The charging document is not a concern for the jury. Its primary purpose is to

alert the defendant to the charge and underlying conduct at issue. Id. From the jury’s

                                              5
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


perspective, the case is contained in the elements instruction and any accompanying

definitional instructions. State v. Smith, 131 Wn.2d 258, 262-263, 930 P.2d 917 (1997).

       “Jury instructions and charging documents serve different functions.” State v.

Vangerpen, 125 Wn.2d 782, 788, 888 P.2d 1177 (1995). This observation is dispositive

of Mr. Hankins’ alternative argument. Instead of arguing that the charging document

misled him about the actions that constituted the crime with which he was charged, Mr.

Hankins argues that those factual allegations needed to be included in the charging

document lest he be convicted of a crime other than that with which he was charged.

That is a concern of an elements instruction only in very limited circumstances.

       The elements of the second degree trafficking in stolen property charge were that

Mr. Hankins, on October 8, 2016, recklessly trafficked in stolen property. CP at 117.

These elements reflected those required by the statute and the date of the offense

identified in the charging document. CP at 1. The evidence adduced at trial showed only

one instance of Mr. Hankins attempting to sell stolen property—the watercraft he brought

to sell to Mr. Reynolds. There was no evidence that Mr. Hankins had sold other

watercraft or any other type of stolen property on that date.

       This is a far cry from the case he relies on, State v. Jain, 151 Wn. App. 117, 210

P.3d 1061 (2009). There the defendant had been charged with two counts of money




                                             6
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


laundering involving the transfer of two specific pieces of real estate, but the evidence at

trial established that he transferred seven different properties that same day. Id. at 120-

121, 123. Because there were seven possible money laundering offenses, although only

two were charged, the defendant’s right to unanimous jury verdicts was infringed by the

failure to require either a unanimity instruction or to elect which property transfers the

prosecutor was relying on. Id. at 124. The Jain court, however, expressly rejected the

argument made here by Mr. Hankins: “There simply is no requirement for the ‘to

convict’ instructions to contain a statement of the type of specified unlawful activity

underlying the charge of money laundering.” Id. at 128-129.1

       This case, of course, is not Jain. There was no evidence indicating multiple

incidences of trafficking in stolen property by Mr. Hankins on October 8, 2016. The

prosecutor was not required to identify (by elements instruction, unanimity instruction, or

election during closing argument) which instance of trafficking in stolen property he was

relying on.

       The elements instruction was correct.




       1
        The other case relied on by Mr. Hankins is of a similar nature. State v. Brown,
45 Wn. App. 571, 726 P.2d 60 (1986). There the charging document had identified the
12 specific people with whom the defendant was alleged to have conspired, but the
evidence at trial involved additional conspirators and the jury instructions did not specify
with whom the defendant conspired. Id. at 576. In those circumstances, the defendant
may have been convicted of a crime other than that with which he was charged. Id.

                                               7
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


       Ineffective Assistance of Counsel

       Mr. Hankins next contends that his trial counsel performed ineffectively by failing

to challenge the comparability of the prior Oregon conviction.2 He cannot establish error

by his counsel, nor prejudice.

       Well known standards also govern review of this claim. The Sixth Amendment to

the United States Constitution guarantees the effective assistance of counsel. Counsel’s

failure to live up to those standards will require a new trial when the client has been

prejudiced by counsel’s failure. State v. McFarland, 127 Wn.2d 322, 334-335, 899 P.2d

1251 (1995). In evaluating ineffectiveness claims, courts must be highly deferential to

counsel’s decisions. A strategic or tactical decision is not a basis for finding error.

Strickland v. Washington, 466 U.S. 668, 689-691, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984).




       2
          The reply brief in the PRP also asserts a claim of ineffective assistance for failure
to discover the evidence underlying the new trial claim. We do not consider this claim
separately for two reasons. First, the issue was improperly raised in a reply brief; there
was no authorization to file an amended PRP raising new claims. Counsel was appointed
only to respond to the State’s answer to the petition. See Order of October 8, 2016.
Second, the merits of the newly discovered evidence claim were properly raised in the
PRP and are before this court. A claim of ineffective assistance is useless in this context.
If the claim of newly discovered evidence was without merit, then any possible attorney
error could not have been prejudicial. If the claim had merit, then the attorney error
would be redundant.


                                              8
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


       Under Strickland, courts apply a two-prong test, evaluating whether or not (1)

counsel’s performance failed to meet a standard of reasonableness and (2) actual prejudice

resulted from counsel’s failures. Id. at 690-692. When a claim can be disposed of on one

ground, a reviewing court need not consider both Strickland prongs. Id. at 697; State v.

Foster, 140 Wn. App. 266, 273, 166 P.3d 726 (2007). If the evidence necessary to

resolve the ineffective assistance argument is not in the record, the claim is not manifest

and cannot be addressed on appeal. McFarland, 127 Wn.2d at 334.3

       Here, nothing in the record indicates that counsel erred by agreeing that the prior

Oregon conviction counted in the offender score. From the prosecutor’s discussion of the

facts of that incident, it appears that information about the Oregon conviction was

available to the parties at sentencing, although none of those materials made it into the

record due to the stipulation of the defense that the prior conviction did count. He

likewise has made no effort to present that information via his PRP, nor has he presented

the Oregon statute to us and made any argument that it was legally not comparable to

Washington law.4




       3
         Typically, the remedy in such situations is for the defendant to bring a PRP so
that additional evidence can be added to the record. Id. at 338 n.5; State v. Norman, 61
Wn. App. 16, 27-28, 808 P.2d 1159 (1991).
       4
         Given that nearly all jurisdictions have adopted some form of the Uniform
Controlled Substances Act, Washington drug offenses typically are comparable to those
in most other states.

                                             9
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


       In short, Mr. Hankins has failed to demonstrate that his counsel erred.5 The

ineffective assistance claim is without merit.

       Newly Discovered Evidence

       The PRP raises a claim of newly discovered evidence, largely concentrating on the

vehicle identification number reported to Spokane police when the watercraft was stolen.

This claim fails for numerous reasons.

       A criminal defendant seeking a new trial must satisfy a five-part test. In order to

prevail, the claimant must establish the critical importance of the newly discovered

evidence to the trial.

       A new trial will not be granted on that ground unless the moving party
       demonstrates that the evidence (1) will probably change the result of the
       trial; (2) was discovered since the trial; (3) could not have been discovered
       before trial by the exercise of due diligence; (4) is material; and (5) is not
       merely cumulative or impeaching.

State v. Williams, 96 Wn.2d 215, 222-223, 634 P.2d 868 (1981). “The absence of any

one of the five factors is grounds for the denial of a new trial.” Id. at 223. Although it

appears that the newly discovered evidence fails to establish most of these five factors,

we address only the final factor.




       5
          There also was no reason to pick an unnecessary fight at a time counsel was
trying to convince the judge that leniency and home detention were appropriate. Since
Mr. Hankins had recently been before the same judge for felony sentencing in another
case, it also is likely that the offender score had been addressed on that occasion.

                                             10
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


       The evidence presented is information that suggests that the identification number

reported to Spokane police was incorrect and that the report (and subsequently the

charging document) erroneously identified the watercraft as a “Yamaha Bombardier.”6

These errors may have provided a basis for further impeaching Mr. Reynolds, but they

accomplish no more than that. For instance, the fact that an incorrect identification

number was reported to the Spokane Police Department suggests that Reynolds was not a

good reporter of information, but it does not establish that the watercraft Hankins

attempted to sell (which had no identification number at all) was not the stolen watercraft

belonging to Reynolds. This evidence, as well as the other proffered evidence, was of the

same character—it called into question some aspects of the original theft report, but it

does not suggest anything more than that. It does not establish that the watercraft

belonged to someone other than Reynolds.

       The other claims of the PRP—that this evidence established fraud and that the

original count was “overcharged,”—are equally without merit and do not need significant

discussion. The petition does not attempt to establish the elements of fraud, nor does the

petition explain how the original charge of first degree trafficking somehow effects the

conviction for second degree trafficking.




       6
        Bombardier is a company, like Yamaha, that manufactures many personal travel
devices, including watercraft. Sea-doo is the name of Bombardier’s watercraft division.

                                            11
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP of Hankins


       The PRP simply has failed to establish any prejudicial error and is without merit.

       Legal Financial Obligations

       Lastly, we address appellant’s claim that the trial court imposed LFOs without

conducting an adequate inquiry into his ability to pay. Although it appears that the

defense understandably avoided the topic of LFOs in order to convince the court that Mr.

Hankins could afford the costs of home detention, intervening case law requires that we

reverse the financial aspects of this sentence. See State v. Ramirez, 191 Wn.2d 732, 426

P.3d 714 (2018).

       Ramirez, released after the sentencing in this case, requires that the trial court

conduct a specified inquiry into the defendant’s ability to pay discretionary costs. As Mr.

Hankins received appointed counsel for trial due to apparent indigency, the trial court

needed to engage in the Ramirez inquiry at sentencing despite any reservations Mr.

Hankins may have had about raising the topic.

       We reverse the LFOs and remand for the trial court to consider Mr. Hankins’

financial situation. Any claim for costs on appeal will be heard by our commissioner in

light of RAP 14.2 and our new general order of February 19, 2019.




                                             12
No. 35497-1-III (Consolidated with 35620-5-III)
State v. Hankins; In re PRP ofHankins


      Affirmed and remanded. The PRP is dismissed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




                                           13
