                                                                                                  ILED
                                                                                        00€ 0r"-
                                                                                          JPT  APPEALS
                                                                                             DIVISI0PJ 1i

                                                                                       2013 JUL   0   AM 10: 28'
                                                                                       STa        I      T
                                                                                                         NIC,Tr,


      IN THE COURT OF APPEALS OF THE STATE OF W

                                              DIVISION II

STATE OF WASHINGTON,                                                     No. 42263 8 II
                                                                                   - -


                                     Respondent,

            V.




IRVIN LEE GREENE,                                                      Consolidated with)


                                                                         No. 43457 1 II
                                                                                   - -
In re Personal Restraint Petition of




IRVIN LEE GREENE,
                                                                   UNPUBLISHED OPINION


                                     Petitioner.


            HUNT, P. . —
                   J    Irvin Lee Greene appeals his jury trial convictions for stalking and felony

harassment. He argues that ( ) "true threat "is an essential element of felony harassment; and - .
                           1a                 -

2)the amended information and the felony harassment " to convict" instruction were

constitutionally       deficient because   they    failed to include this "true threat" element.' In his


Statement of Additional Grounds (SAG),
                                     Greene also asserts that (1)the trial court erred by

failing to arraign him on the amended information; 2) trial court erred in failing to dismiss
                                                   ( the

his case, apparently sua sponte, under Knapstad; 3) trial court erred in denying his motion
                                                 ( the

1
    Greene also raises these issues in his Statement of Additional Grounds.

2
    State   v.   Knapstad, 107   Wn. d 346, 729 P. d 48 (
                                   2             2      1986).
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


to dismiss five counts of violating a domestic violence court order; ( )there is insufficient
                                                                     4

evidence to support his convictions for stalking and felony harassment; and (5)he received

ineffective assistance because his trial counsel failed to file a continuance motion and a Knapstad

motion on his behalf.


       In a separate Personal Restraint Petition (PRP),
                                                      which we have consolidated with his

direct appeal, Greene asserts several additional grounds to support his contention that he received
ineffective assistance of counsel.    We affirm Greene's convictions for stalking and felony

harassment, and we.deny his personal restraint petition.

                                             FACTS


                             I. STALKING AND FELONY HARASSMENT


        Carol Marie Unkrur, a Sound Transit light rail train operator, met Irvin Lee Greene when

he approached her at work to file a complaint about a security guard. Greene rode the train a

couple more times, became acquainted with Unkrur, and later began a romantic relationship with
her.   Shortly thereafter, Unkrur ended their relationship approximately when Greene became

aggressive" and began showing up at her work, calling her names like "whore"and a "dumb

b tch"and accusing her of sleeping with other men. Verbatim Report of Proceedings (May 11,
  *

2011) t89.
    a

        On August 14, 2009, Greene called and texted Unkrur several times while she was out of

town with her 15- old daughter; Unkrur refused to take his calls. Believing Greeene would
                year -

not stop calling her until she answered her phone, Unkrur called Greene back when she returned
home that   evening.    Greene   asked, Where
                                        "       are   you at ?"   Unkrur responded, " ' at home."
                                                                                    Im

Greene replied, Well, I' in your backyard." VRP (May 11, 2011) at 90. Unkrur knew that
                "      m


                                                 2
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


Greene was capable of harming her because he had been boxing since his early teens, he was a

licensed professional boxer, and he had previously told her that he had once .put a woman in a

headlock." VRP (May 11, 2011) at 109. Wanting to keep Greene away from her daughter,

Unkrur took him back to his house in Tacoma, where Greene told Unkrur he loved her. Unkrur

responded, No,I' done with this. I' done. Don't call me anymore."VRP (May 11, 2011)
           "   m                  m
at 91.


         But Greene   began contacting   Unkrur   again   within six hours.        The next morning, he

showed up at her work. Concerned for her safety, Unkrur informed her supervisor, who assigned

her to a different work station at the Tacoma Dome and required that another train operator and a

security guard to be with her. Later that day, Greene showed up at the Tacoma Dome station,

got off the bus, made a loop around, reboarded again one to two buses later, and left Unkrur a
text message, stating, What is it now?Why
                       "                      are   you   getting   other   people involved ?" VRP ( ay
                                                                                                   M

11, 2011)at 94. Pierce Transit issued a " o trespass"order against Greene, preventing him from
                                        n

riding the buses and looking for Unkrur. VRP (May 11,2011)at 94.

         Greene then began calling Unkrur late at night and leaving voice messages describing the

contents of her   apartment and stating: (1) " know, you
                                            You                     are   not at your   place "; and (2) "
                                                                                                        You

are not at home. You left your lights on."
                                         VRP (May 11,2011)at 92. Not wanting to be alone,

Unkrur asked a male friend, Dan, to stay at her apartment; her daughter was also afraid to sleep

in the apartment and began staying with family members. In mid -September, Unkrur moved out

of her apartment because she was afraid that Greene would return and harm her or her daughter.

         On September 4,Unkrur obtained a temporary protection order against Greene. Six days

later, he violated it.   On September 14, Unkrur obtained a two year "no contact" protection
                                                                -


                                                    3
No. 42263-
    11-  8 consolidated with No. 43457 1 II)
            (                          - -


order, prohibiting Greene from coming near her or having any contact with her. On January 6,
2010, Greene pleaded guilty   to two counts of     violating this protection   order.      As part of his

sentence, the trial court issued a second "no contact" protection order prohibiting Greene from

contacting Unkrur for two years.

       Approximately two months later, on March 16, Greene sent Unkrur a text message, ( )
                                                                                       1

instructing her to "[ all"him because he was not "pissed"anymore; and (2)
                   c]                                                   threatening "to put

Dan in the hospital" if Unkrur did not return his phone calls. VRP (May 11, 2011) at 98, 99,

102. Concerned for Dan's safety, Unkrur met with Greene "to calm [him] down."VRP (May

11, 2011) at 102. A day or two later, Greene started calling and texting Unkrur again, thereafter

persisting in calling or texting her multiple times a day. He sent her pictures of his penis and
threatened her with text messages, stating: (1) " s this kills your white * slut * let me
                                               What'                      ss     ss

send you this show the   punk this "; 2) "t
                                      ( Ain'   seen     you all   day "; (3) "
                                                                            Move out of town you lost

                                                   don't have to bother   calling               scared ...   I
              4 I was thinking
privileges "; ( ) "              to   myself you                                    you   are




am    cked now you be"; ( Wanna
     f*               5) "               play Chuckie "; and (6) "
                                                                I know where you live now. I

know where you now live."
                        VRP ( ay 12,2011)at 132, 138, 141, 142, 147, 158.
                            M

       Unkrur tried to block Greene's calls; but he showed up at her work.                She then kept in

contact with him because she thought it was safer to talk to him over the phone than to have him

show up unannounced at work.

       In April, Greene threatened to hurt a passenger on Unkrur's train. She filed an incident

report with the police and reported Greene for having violated the no contact protection order.


3
 According to Unkrur, the term "Chuckie"refers to the Chuckie horror films, which involve a
doll that plays with knives and kills people. VRP (May 11, 2011)at 159.

                                                   in
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


On April 18, Greene left Unkrur a disturbing voicemail, threatening to kill her and "to cut [her]

head off."VRP (May 12, 2011) at 204 (emphasis added). On May 15, he suggested in a text

message that he was ready for a stand off with the police, stating, I' ready for anything them
                                                                    " m

and the cops you owe me and I owe you. Chuckie."VRP (May 11, 2011) at 161. Two days

later, he left Unkrur 22 voicemails and 11      text messages in      a   three hour
                                                                                -      period. On May 18,

Greene left Unkrur another threatening text message, this time stating, I know who he is now.
                                                                        "

I' going to take care ofhim. Then I' going to come after you."
 m                                 m                          VRP (May 11, 2011) at 106

emphasis added).

         Unkrur took these threats "seriously"because she knew he was capable of carrying out

his threats. VRP (May 12, 2011) at 205. She filed second incident report with the police and

again reported   Greene for    having violated the   no   contact   protection   order.   The police took a

taped statement from Unkrur, recorded her voicemails, and photographed her cell phone to
document Greene's text messages.

                                             II. PROCEDURE


         The State initially charged Greene with five counts of violating a domestic violence court

order.   On February 14, 2011, the State filed an amended information, adding one count of

stalking and     one   count   of   felony harassment.     Greene was rearraigned on the amended




4
 Although this amended information was dated August 9, 2010, it was not filed until February
14, 2011, because there was initially some confusion about whether Greene had been arraigned
on the amended information. See Verbatim Report of Proceedings (August 31, 2010) at 2 (trial
court states case "not been set for rearraignment" and defense counsel responds he thought they
had " one the rearraignment previously ").
    d



                                                     5
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


information the   same   day. This amended information did not include the words that Greene's
threat to kill"in his felony harassment charge must have been a "true threat." See Clerk's

Papers (CP)at 66. But Greene did not object to the language of the amended information on this

ground either before or during trial.
       At trial, the State's witnesses testified to the facts previously described. The trial court

instructed the jury on the law. The felony harassment "to convict"instruction did not mention

that Greene's threat to kill"
                "            must be a "true threat."CP at 142 (Instruction 28).Greene, again,

did not object to this instruction or propose an alternate felony harassment "to convict"

instruction. See VRP (May 16, 2011) at 223 27,231 36 ( bjecting and taking exception only to
                                           -      - o

the State's   proposed   instruction   on   stalking). Nevertheless, the trial court gave the jury a




5 At the end of the August 31 hearing, at which the parties had first expressed confusion about
whether Greene had been arraigned on the State's amended information, the trial court ordered
 rearraignment" on the amended information "within one week." VRP (Aug. 31, 2010) at 5.
Original defense counsel Aaron Talney eventually withdrew from representing Greene; and the
confusion about the rearraignment persisted.
         The record is not clear whether Greene was rearraigned on the amended information
within the trial court's initial  one week deadline.
                                      -                 When again brought to the trial court's
attention on February 14, 2011, the trial court entered findings that ( )
                                                                      1 Greene had " onstructive
                                                                                   c
notice"of the amended information's adding the stalking and felony harassment counts because
his trial counsel had received a copy of the amended information; and (2)   Greene would not be
prejudiced"by rearraigning him and adding the stalking and felony harassment charges because
the charges did not involve any new witnesses or substantive changes to the case. VRP ( eb. 14,
                                                                                      F
2011) at 16. The trial court accepted the State's amended information and rearraigned Greene
the same day, stating, I' going to go ahead and rearraign him on those"counts in the amended
                       " m
information. VRP ( eb. 14,2011)at 16.
                 F
6
 The record shows that Greene objected to the amended information only on the grounds that
State had included six additional counts ( ounts 8 13)
                                         C         -  based on Greene's threatening behavior in
jail,which jail counts the trial court severed before trial on the stalking counts.


                                                     n
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


                                                                                            CP at   140
separate instruction defining " true threat,"to which Greene did            not   object.

Instruction 26).

        The jury found Greene guilty of stalking and felony harassment. Greene appeals these
two convictions.

                                           ANALYSIS


                     I. FELONY HARASSMENT " RUE THREAT"REQUIREMENT
                                          T

        For the first time on appeal, Greene argues that ( ) "true threat"is an essential element
                                                         1a

of felony harassment, and (2) amended information and the felony harassment "to convict"
                             the
instruction were constitutionally deficient because they did include this essential element of the

offense.    Greene fails to meet the RAP 2. (
                                         a)( exception for our consideration of this
                                          3)
                                          5

unpreserved issue for the first time on appeal.

                                     A. Standard of Review


         Generally, we do not review issues raised for the first time on appeal unless the issue

involves a "manifest error affecting a constitutional right.''
                                                             RAP 2. (
                                                                 a)( Under this standard,
                                                                  3).
                                                                  5

the defendant has the initial burden of showing that (1) error was "`
                                                        the         truly of constitutional

dimension "' and ( the
                 2) error         manifest.
                              was "`              "' State   v. Grimes, 165 Wn. App. 172, 185 86,267
                                                                                              -

P. d 454 (2011) quoting State v. O' ara, 167 Wn. d 91, 98, 217 P. d 756 (2009)),
 3              (                 H            2                3             review

denied, 175 Wn. d 1010 ( 2012). If he successfully shows that a claim raises a manifest
              2




7
    When the jury was unable to reach a verdict on five counts of Greene's violating a domestic
violence court order, the trial court declared a "mistrial" and dismissed these counts without
prejudice. VRP ( ay 18, 2011)at 332.
                M


                                                   7
No. 42263 8 II consolidated with No. 43457 1 II) .
          - - (                            - -


constitutional error, then the burden shifts to the State to prove that the error was harmless

beyond a reasonable doubt. Grimes, 165 Wn. App. at 186. Greene fails to meet his burden here.
                                 B. True Threat"Not Essential Element
                                    "

           Both the United States and Washington Constitutions require that all " ssential elements"
                                                                                e

of   a    crime —whether    statutory or nonstatutorybe pleaded in the information and proved

beyond a reasonable doubt. State v. Allen, 176 Wn. d 611, 627 n.0, 294 P. d 679 (2013);
                                                 2             1        3             State
v.   Vangerpen,     125 Wn. d
                          2      782, 787;     888 P. d 1177 ( 1995). The trial court's to convict"
                                                    2                                    "


instruction must also contain all essential elements of the offense, and its failure to do so

constitutes "
            automatic reversible error."State v. Smith, 131 Wn. d 258, 263, 265, 930 P. d 917
                                                              2                       2

1997).

            Consistent with federal and state constitutional freedom of speech protections,

Washington courts interpret statutes criminalizing threatening language as proscribing only " rue
                                                                                            t

threats,"
        which the First Amendment does not protect. State v. Atkins, 156 Wn. App. 799, 805,

236 P. d 897 ( 2010). A "true threat" is " "a statement made in a context or under such
     3


circumstances wherein a reasonable person would foresee that the statement would be interpreted

         as a serious expression of intention to inflict bodily harm upon or to take the life of another

person. ""      Allen, 176 Wn. d at 626 (quoting State v. Kilburn, 151 Wn. d 36, 43, 84 P. d 1215
                             2                                           2               3

2004) alteration in original) quoting State v. Williams, 144 Wn. d 197, 207 08,26 P. d 890
      (                       (                                2            -      3

2001))).



8 "`The First Amendment, applicable to the States through the Fourteenth Amendment, provides
     Congress shall make
that `                          no   law ...   abridging   the freedom of   speech. "" Allen, 176 Wn. d at
                                                                                                    2
626 (quoting Virginia v. Black, 538 U. .343, 358, 123 S.- 1536, 155 L.Ed. 2d 535 (2003)).
                                     S                  Ct.



                                      0
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


         Relying on State v. Johnston, 156 Wn. d 355, 127 P. d 707 (2006),
                                             2             3             Greene argues that

1) " `rue threat' requirement [is]an [essential] element of any harassment charge"that must
  the t

be pleaded in the information and included in the "to convict" instruction; and (2) should
                                                                                   we

reverse his felony harassment conviction because his amended information and felony

harassment " o convict"instruction did not meet these constitutional standards..Br. of Appellant
           t

at 9. The Washington Supreme Court has recently rejected this argument: "We have never held

the true threat   requirement    to be   an   essential element   of   a   harassment statute." Allen, 176


Wn. d at 628 (emphasis added).
  2

         In Allen, our Supreme Court clarified that (1) "` constitutional concept of `rue threat'
                                                       the                           t

merely defines    and limits the scope of the essential threat element in the        felony ...   harassment


statute and is not itself   an   essential element of the crime "'; (         2)because the "true threat"

requirement is merely definitional and is not an essential element of the crime, it is not an " rror"
                                                                                              e

if the true threat requirement is not included in the information or "to convict" instruction; and

3)so long as the jury [is] instructed as to the true threat requirement, the defendant's First
   "

Amendment      rights [are] protected." See Allen, 176 Wn. d at 628 30. Because the Allen jury
                                                         2          -

received a separate instruction explaining the true threat"requirement, the Court held that the
                                               "

defendant's First Amendment rights were "protected" and he failed to demonstrate that a

manifest error affecting a constitutional right"had occurred, which precluded appellate review.

Allen, 176 Wn. d at 630; RAP 15( )(
             2               3).
                               a




9
    Allen, 176 Wn. d at 630 ( uoting State v. Tellez, 141 Wn.App. 479, 484, 170 P. d 75 (2007)).
                 2          q                                                    3
io
     Allen, 176 Wn. d at 630 ( iting Atkins, 156 Wn. App. at 805 06).
                  2          c                                   -

                                                      9
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


        Allen is   dispositive    here.    As in Allen, Greene's amended information and felony

harassment "to convict"instruction did not mention'the true threat"requirement. But the trial
                                                       "

court gave the jury a separate instruction, identical to the instruction given in Allen, explaining

the "true threat"requirement, including that in order to convict, Greene's threat to kill"needed
                                                                             "

to be considered a " rue threat."This instruction read, in part:
                   t

                To be a threat, a statement or act must occur in a context or under such
         circumstances where a reasonable person, in the position of the speaker, would
         foresee that the statement or act would be interpreted as a serious expression of
         intention to carry out the threat rather than as something said in jest or idle talk.
                                                                                                      1
CP at 140 (
          Instruction      Just
                        26).         as   in this instruction   protected   Allen's First   Amendment rights,

it also protected Greene's rights.

         Accordingly, we hold that ( ) "true threat"requirement is not an essential element of
                                   1 the

the felony harassment statute and need not have been included in the amended information or

felony harassment "to convict" instruction; and (2)because the jury instructions included a

separate instruction explaining the "true threat" requirement, the instructions as a whole were

sufficient to protect Greene's First Amendment rights. Thus, no constitutional "error"occurred

warranting our review for an unpreserved alleged error under RAP 2. (
                                                                 a)(
                                                                  3).
                                                                  5
                                                II. SAG ISSUES


                                 A. Arraignment on Amended Information

         In his SAG, Greene first asserts that the trial court erred in failing to arraign him on the

amended information, which added his stalking and felony harassment charges. Although there

was some initial confusion about whether Greene had been arraigned on the amended



11
     U. .CoNST. amend. I.
      S


                                                        10
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


information, this issue was resolved pretrial on February 14, 2011, when the trial court

rearraigned" Greene on his stalking and felony harassment charges and accepted the State's

amended information. Verbatim Report of Proceedings (February 14, 2011) at 16 (trial court

stating, " m going
         I'            to go ahead and   rearraign him      on   those [ counts.]   ").Because   the record


shows that Greene was arraigned on the amended information, his assertion to the contrary lacks

merit.


                                            B. Knapstad

          Greene asserts that the trial court failed to exercise its "inherent power" to,dismiss his
                                                  12
charges    under   a sua   sponte Knapstad motion.        SAG at 2 (ground    3).The      record does not


reflect that either Greene or his trial counsel filed a Knapstad motion or that the trial court ruled

on such motion. Even if there had been a Knapstad ruling, because the jury has rendered its

verdict, any pretrial Knapstad ruling is not appealable independent of a challenge to the

sufficiency of the evidence at trial. State v. Jackson, 82 Wn. App. 594, 608 09, 918 P. d 945
                                                                             -        2

1996),
     review denied, 131 Wn. d 1006 (1997).Thus, this assertion also fails.
                          2
                C. Motion To Dismiss Domestic Violence Court Order Violation Counts

          Greene next asserts that the trial court erred in failing to dismiss his five counts of

violating a domestic violence court order because the State was ultimately unable to obtain guilty

verdicts   on   these counts. The record does not support this assertion: It does not show that


Greene or his trial counsel moved to dismiss his five counts of violating a domestic violence

court order on grounds that they lacked sufficient evidence or that the trial court ever ruled on


12 A Knapstad motion is a pretrial challenge to the sufficiency of the evidence. State v. Cannon,
120 Wn.App. 86, 90, 84 P. d 283 (2004).
                        3



                                                     11
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -

                  13
such   a   motion.     The record does show, however, that when the jury was unable to return a

verdict on these.five counts, the trial court declared a mistrial and dismissed these counts without

prejudice. Thus, this assertion also lacks support in the record.
                                       D. Sufficient Evidence


           Greene does assert that the State presented insufficient evidence to support his

convictions for stalking and felony harassment. We disagree.

                                        1. Standard of review


           When reviewing a challenge to the sufficiency of the evidence, we ask whether, after
                                                                                          "

viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime     beyond     a   reasonable doubt." State v. Hosier, 157


Wn. d 1, 8, 133 P. d 936 (2006). A
  2              3               "          claim of insufficiency admits the truth of the State's

evidence and all inferences that     reasonably   can   be drawn therefrom." State v. Salinas, 119


Wn. d 192, 201, 829 P. d 1068 (1992).Circumstantial evidence and direct evidence are equally
  2                  2

reliable. State v. Moles, 130 Wn. App. 461, 465, 123 P. d 132 (2005).We defer to the jury on
                                                      3

issues of conflicting testimony, credibility of witnesses, and persuasiveness of the evidence.

State v. Thomas, 150 Wn. d 821, 874 75, 83 P. d 970 (2004) citing State v. Cord, 103 Wn. d
                       2            -       3               (                          2

361, 367, 693 P. d 81 (1985)).
               2




13
   The record shows that Greene filed two pro se motions asserting.that the trial court should
dismiss these counts under "double jeopardy" principles. Greene does not, however, assert this
double jeopardy claim on appeal.

                                                   12
No: 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


                                              2. Stalking

       Under former RCW 9A. 6.
                        110(
                           1
                           4 )

          a person commits the crime of stalking if, without lawful authority and under
          circumstances not amounting to a felony attempt of another crime:
                   a)He or she intentionally and repeatedly harasses or repeatedly follows
          another person; and
               b) person being harassed or followed is placed in fear that the stalker
                  The
       intends to injure the person, another person, or property of the person or another
       person. The feeling of fear must be one that a reasonable person in the same
       situation would experience under all the circumstances; and
                   c)
                    The stalker either:
                          i)
                           Intends to frighten, intimidate, or harass the person; or
                          ii)Knows or reasonably should know that the person is afraid,
          intimidated, or harassed even if the stalker did not intend to place the person in
          fear or intimidate or harass the person.

A person " epeatedly"harasses or follows another person if he does so on " wo or more separate
         r                                                               t

occasions." RCW 9A. 6.
                e); Wn. d 537, 546, 238 P. d 470 (2010).
                110(
                   6)(Kintz, 169
                   4  State v.   2       3

Attempts to contact or follow the person after being given actual notice that the person does not

want to be contacted or followed constitutes prima facie evidence that the stalker intends to

intimidate    or   harass the   person."   RCW   9A. 6. A finding that the alleged stalker
                                                 110(
                                                    4
                                                    4 ).

repeatedly   and   deliberately appears"at
                                "            the "
                                                 person's   home, school,place of employment ...   or




any other location to maintain visual or physical proximity to the person is sufficient to find the

alleged    stalker follows the                b) added). The crime of
                                 person." RCW 9A. 6.
                                              110(
                                                 6)(
                                                 4  emphasis (

stalking is also elevated to a felony where, as here, the stalking "violates any protective order

protecting the person being stalked."RCW 9A. 6.
                                         b).
                                         110(
                                            5)(
                                            4



14 Former RCW 9A. 6.the law in effect at the time of Greene's crimes, was later amended
                 110, 4
by  LAWS of 2011, ch. 307, § 2, effective July 22, 2011. This amendment does not affect our
analysis here; accordingly, we omit " ormer"from the remaining citations to this statute.
                                    f


                                                     13
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


           Here, the State presented evidence that, after Unkrur broke up with Greene, he had

repeatedly contacted her by calling and texting her and had threatened to harm her and people
close to her for about a year, with his contacts growing more intense over time and often

involving multiple     contacts    a   day. Greene also repeatedly and deliberately "appeared" at

Unkrur's home and place of employment under circumstances where he could maintain close

visual or physical proximity to her; this evidence alone was sufficient to establish that he had
followed"her. Unkrur testified that she was afraid for her safety and the safety of her friends

and family because she knew Greene was a professional boxer, he had previously put a woman

in   a   headlock, and he   was   capable   of   carrying   out his threats.      Unkrur's fear was objectively

reasonable given the nature of their relationship and the severity and frequency of Greene's

conduct.

           The jury could also infer from the evidence (1)that Greene intended to frighten or to
intimidate Unkrur because he had actual notice that Unkrur did not want to be contacted or
                                                                                                        15
followed in this     manner (   as evidenced by          her two     protection orders against him), yet he

continued to contact and to follow her; and/ r 2)
                                           o ( that Greene knew or reasonably should have

known his conduct frightened, intimidated, or harassed Unkrur (as evidenced, for example, by

his text message, stating, I
                           "      was   thinking   to   myself ...   you   are   scared ...   I am Poked now you

be ").    VRP (May 12, 2011) at 147 (emphasis added). Because Greene continued to contact and

to follow Unkrur in this manner after being served with a domestic violence protection order, the

is
     See, e. ., s September 9, 2009 statement on plea of.uilty, which the prosecutor read
           g Green'                                     g
into the record as follows: "[ ith knowledge of valid protection order, I did unlawfully violate
                             W]
said order by knowingly contacting Carol Unkrur twice by phone,"     VRP (May 11, 2011) at 51;
and plaintiff's exhibit 4,the January 6,2010 no contact order, which Greene signed.


                                                            14
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


jury could find the facts necessary to convict him of a felony. Viewing the facts and inferences
in the light most favorable to the State, we hold that there is sufficient evidence to support

Greene's.
        stalking conviction.

                                         3. Felony harassment

         Under former RCW      020(
                               9A. 6. person is guilty of harassment if
                                  1a
                                  4 ),

         a)Without lawful authority, the person knowingly threatens:
               i)o [ bodily injury immediately or in the future to the person
                 t] cause
         threatened or to any other person[;
                                           and]

         b)The person by words or conduct places the person threatened in reasonable
         fear that the threat will be carried out.


Harassment is elevated to a felony if the defendant harasses another person by "threatening to

kill" person threatened or another person. RCW 9A. 6.The threat to kill must be
     the                                       b).
                                               020(
                                                  2)(
                                                  4

also interpreted as a "true threat."Atkins, 156 Wn. App. at 805; see also Allen, 176 Wn. d at
                                                                                       2

626. The trier of fact uses an objective standard to determine whether the victim's fear that the

threat will be carried out is reasonable. State v. Alvarez 74 Wn. App. 250, 260 61, 872 P. d
                                                                                -        2

1123 ( 1994),_ , 128 Wn. d
            aff'
               d       2             1, 904 P. d
                                             2       754 (1995). Importantly,   "he nature of a threat
                                                                                t

depends on all the facts and circumstances." State v. C. .,150 Wn. d 604, 611, 80 P. d 594
                                                       G         2                 3

2003).

          The State also presented evidence that Greene was "pissed"after Unkrur broke up with

him. And over the course of a year, 1) showed up unannounced at her home and work; 2)
                                    ( he                                           ( he

repeatedly contacted her by phone, threatening to harm her and people close to her, VRP (May


 16
      Former RCW 9A. 6. law in effect at the time of Greene's crimes, was amended by
                 020(
                    1 the
                    4 ),
                                                                   effective   July 22,   2011.   These
thelegislature in 2011 by LAWS of 2011, ch. 64, § 1,
amendments, however, do not affect our analysis here.

                                                      15
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


11, 2011) at 99; and (3)he often signed his text messages with the pseudonym,Chuckie,"
                                                                             "       a

reference to a horror movie -n which a doll kills people with knives. VRP (May 12, 2011) at
                            i

159. Greene's threatening conduct so concerned Unkrur that she notified her supervisor about

him, changed apartments, and got two protection orders against him.

       But rather than ceasing his forbidden contacts, Greene's conduct intensified and grew

more frequent over time, eventually culminated in Greene's threatening to kill Unkrur by

cut[ing her] head off."
   t                  VRP (May 12, 2011)at 204. Based on the circumstances, a reasonable

person in Greene's position would foresee that this statement would be interpreted as a "true

threat,"
       especially by Unkrur. Unkrur took Greene's threats "seriously,"
                                                                     testifying that she was

afraid for her safety and the safety of her friends and family because she knew Greene was a

licensed   professional boxer, he   had   previously put   a woman   in   a   headlock,17   and he was capable

of carrying out his threats. VRP (May 12, 2011) at 205. Given the nature of their relationship

and the severity and frequency of Greene's threats, a jury could conclude that Unkrur's fear was

reasonable. Viewing the facts and inferences in the light most favorable to the State, we hold

that there is sufficient evidence to support Greene's felony harassment conviction.

                                E. Effective Assistance of Counsel


       To prove ineffective assistance of counsel, a defendant must show that (1) counsel's
                                                                                 his

performance     was   deficient, and (2)the deficient performance prejudiced him. Strickland v.

Washington, 466 U. . 668, 687 88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984);
                 S            -                                                State v.

17
 When a defendant is charged with felony harassment, evidence of prior violent acts or threats
may be admitted to show the victim's fear of the defendant was reasonable. State v. Binkin, 79
Wn..App. 284, 29293,902 P. d 673 (1995),
                   -           2               overruled on other grounds by State v. Kilgore,
 147 Wn. d 288, 53 P. d 974 (2002).
       2            3



                                                     16
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


Thomas, 109 Wn. d 222, 225 26, 743 P. d 816 ( 1987). A defendant alleging ineffective
              2            -        2


assistance must overcome "` strong presumption that counsel's performance was reasonable. "'
                          a

State v. Grier, 171 Wn. d 17, 33, 246 P. d 1260 (2011)quoting State v. Kyllo, 166 Wn. d 856,
                      2                3               (                            2

862, 215 P. d 177 (2009)),
          3             adhered to in part on remand, 168 Wn. App. 635, 278 P. d 225
                                                                             3

2012). If counsel's conduct "` an be characterized as legitimate trial strategy or tactics,
                             c

performance is   not deficient. "'   Grier, 171 Wn. d at 33 (quoting Kyllo, 166 Wn. d at 863).To
                                                  2                               2

show prejudice, the defendant must establish that "`
                                                  there is a reasonable probability that, but for

counsel's deficient performance, the outcome of the proceedings would have been different. "'

Grier, 171 Wn. d at 34 (quoting Kyllo, 166 Wn. d at 862).A defendant's failure to prove either
             2                               2

prong ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P. d 563 (1996).Greene
                                                                     2
fails to meet his burden here.

                                      1. Failure to move to continue


       A defendant in     custody     is entitled to be tried within 60    days   of   arraignment.   CrR


1)(c)(
33( )( This 60 day time period, however, excludes "[ ] granted by the court."
  i), -
  b 1).              (                             delay
CrR 3. (
    e)( Under CrR 33( )( may continue the trial date to a specified date
     3).
     3            2),
                    f the court "

when such continuance is required in the administration ofjustice and the defendant will not be

prejudiced   in the   presentation    of his   or   her defense."      Greene does not specify what

continuance" motion he wanted his trial counsel to file; nor does he explain the basis for his

desired continuance motion or how he (Greene) would avoided prejudiced if counsel had




                                                     17
No. 42263 8 I1.consolidated with No. 43457 1 11)
          - - (                            - -

                                                               18
presented   and the trial court had    granted   such motion.       We do not consider SAG issues where


the defendant fails to supply sufficient specificity to inform us about "the nature and occurrence

of [the]   alleged   errors." RAP      10. 0( Accordingly, we do not further address Greene's
                                       c).
                                         1

ineffective assistance argument on this failure to move to continue ground.

                                                   3 Knapstad

         A Knapstad motion is a pretrial challenge to the sufficiency of the evidence. State v.

Cannon, 120 Wn. App. 86, 90, 84 P. d 283 ( 2004). To prevail on a Knapstad motion, the
                                 3


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. Knapstad, 107 Wn. d at 356. A
                                                                                  2

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. d 162, 71 n.2,P. d 1012 (2001).
  2      1    19 3
               3

         But, as we previously explained, once a case has gone to trial and a jury has rendered a

verdict, a Knapstad issue is essentially moot and a challenge to the sufficiency of the evidence

must be based        on   the full trial record.    Jackson,   82 Wn.   App.   at 608 09.
                                                                                      -     Here, the State




18
     Nor have we found any evidence in the record that Greene's trial counsel was deficient by
failing to file a specific continuance motion or to protect Greene's speedy trial rights. On the
contrary, the record shows that the State filed several continuance motions, that Greene
vehemently opposed these motions, and that Greene's trial counsel diligently voiced Greene's
objections each time.



                                                       18
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


presented sufficient evidence to support the jury's convicting Greene of stalking and felony
             19
harassment.       Thus, Greene's ineffective assistance challenge fails on this ground as well.

                              III. PERSONAL RESTRAINT PETITION ISSUES


         In his Personal Restraint Petition ( RP),
                                            P    Greene asserts several additional reasons why he

believes he received ineffective assistance of counsel. Because Greene fails to carry his burden

to show such ineffective assistance, we deny his petition.

         When considering a timely PRP, courts may grant relief to a petitioner only if the

petitioner is under an "unlawful"restraint, as defined by RAP 16. (RAP 16. (A PRP
                                                              c). 4
                                                                4      a).

must include (1) statement of facts upon which the claim of unlawful restraint is based and (2)
                a

the evidence available to support the factual allegations. RAP 16. ( re Pers. Restraint of
                                                               a)(In
                                                                 2);
                                                                 7

Williams, 111 Wn. d 353, 365, 759 P. d 436 (1988).The petitioner's factual allegations must
                2                  2

be "based on more than speculation, conjecture, or inadmissible hearsay."In re Pers. Restraint

ofRice, 118 Wn. d 876, 886, 828 P. d 1086, cent. denied, 506 U. . 958 (1992).If a petitioner
              2                  2                            S

fails to provide sufficient evidence to support his factual allegations, we may dismiss his petition

and decline to grant a reference hearing. See Williams, 111 Wn. d at 365.
                                                              2

         Additionally, the availability of PRP collateral relief is limited in two ways. In re Pres.

Restraint of Yates, 177 Wn. d 1, 16, 296 P. d 872 (2013).First, t] petitioner in a personal
                          2               3                     "'[ he

restraint petition is prohibited from renewing an issue that was raised and rejected on direct

appeal   unless the interests of justice   require relitigation of that   issue. "'   Yates, 177 Wn. d at 17
                                                                                                   2



19
   Although the jury ultimately failed to return guilty verdicts on Greene's five counts of
violating a domestic violence court order,these dismissed charges are not before us in this appeal
from Greene's stalking and felony harassment convictions.


                                                      19
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


quoting In re Pers. Restraint ofDavis, 152 Wn. d 647, 671, 101 P. d 1 ( 2004)).
                                             2                  3             Second, new
issues must meet a heightened showing before a court will grant relief. Yates, 177 Wn. d at 17.
                                                                                     2

For alleged constitutional errors, a petitioner has the burden of showing actual prejudice. "'
                                   "`

Yates, 177 Wn. d at 17 (quoting In re Pers. Restraint ofElmore, 162 Wn. d 236, 251, 172 P. d
             2                                                        2                  3

           I]f
335 (2007)). "[       a personal restraint petitioner makes a successful ineffective assistance of

counsel claim, he has necessarily met his burden to show actual and substantial prejudice."In re

Pers. Restraint of Crace, 174 Wn. d 835, 846 47,280 P. d 1102 (2012).We review Greene's
                                2            -       3

remaining ineffective assistance arguments under these PRP rules.

                  A. No Evidence Counsel " hreatened"Greene To Plead Guilty
                                         T

       First, Greene asserts that he received ineffective assistance because his trial counsel

threaten[ d]" that he needed to accept the State's guilty plea offer because the State would
        e  him

add two additional counts of felony harassment and stalking to his charges, which he further

asserts that   this violated his due   process   rights   and his attorney client   privilege.   PRP at 6


ground 1).
         Greene asserts that this conversation with counsel occurred on July 8, 2010, in the

CDPJ interview room," he fails to supply supporting facts and evidence necessary for us to
                    but
                            20
review this claimed    error.    PRP at 6 (ground 1).Nor does Greene demonstrate that such a

conversation, if it occurred, would have violated his attorney client privilege or amounted to

deficient performance. Thus, this ineffective assistance argument fails.


20
  In contrast, the record before us shows only that the trial court entered an order on July 8 for
Greene to undergo a competency evaluation at Western State Hospital. As we discuss in more
depth later in this opinion, Greene's counsel's request for a competency hearing, without more,
does not amount to deficient performance, especially where such a hearing was necessary to
protect Greene's due process rights.



                                                     20
No. 42263 8 II consolidated with No. 43457= II)
          - - (                           1 -


                     C. No Violation of Speedy Trial; Competency Evaluation

       Greene next asserts that he received ineffective assistance because his trial counsel

violated his   speedy   trial   rights by requesting   that he   undergo   a   competency evaluation. This

argument also fails.

       A defendant in custody pending trial is entitled to be tried within 60 days of arraignment.

CrR 3. ( 1).
    i),
    b)(c)( Competency proceedings, however, are specifically excluded from this
     1)(
     3                                       (

time for trial   computation.      CrR   3. (Greene
                                         e)(
                                          1).
                                          3                      fails to show a violation of his CrR 3.
                                                                                                       3


speedy trial"rights based on the time it took for him to undergo a competency evaluation.

       Greene also fails to show that his trial counsel was deficient in requesting this

competency evaluation. The procedures of the competency statute (chapter 10. 7 RCW) are
                                                                           7

mandatory, not merely directory. State v. Wicklund, 96 Wn. d 798, 805, 638 P. d 1241 (1982).
                                                         2                  2

O]ce there is a reason to doubt a defendant's competency, the court must follow the statute to
 n

determine his or her competency to stand trial."City of Seattle v. Gordon, 39 Wn. App. 437,

441, 693 P. d 741 (emphasis added),
          2                       review denied, 103 Wn. d 1031 (1985).Failure to follow
                                                       2

procedures necessary to protect a defendant's right not to be tried while incompetent is a denial

of due process. State v. O' eal, 23 Wn. App. 899, 901, 600 P. d 570 (1979) citing Drope v.
                          N                                 2               (

Missouri, 420 U. . 162, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975);
               S                                              Pate v. Robinson, 383 U. .375,
                                                                                     S

86 S. Ct. 836, 15 L.Ed. 2d 815 (1966)).

        The record before us on direct appeal, with which Greene's PRP has been consolidated,

shows a reasonable doubt about Greene's competency based on his persistent outbursts during

pretrial hearings and his threatening conduct toward his trial counsel and the jail staff. Greene's

trial counsel, thus, was not deficient in asking that Greene undergo a competency evaluation; on


                                                       21
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


the contrary, counsel was protecting Greene's due process rights. Greene's ineffective assistance

argument fails on this basis as well.

                                D. Special Counsel Not Ineffective

       Greene next asserts that his special counsel ( Vanessa Martin) provided ineffective

assistance when she opposed his trial counsel's Talney)motion to withdraw and motion for an
                                                 (

order that Greene had forfeited his right to counsel. We disagree.

       The record shows that Greene's special counsel vigorously opposed Talney's motions.

She also moved for ( ) ex parte hearing due to the sensitive nature of the issues discussed and
                   1 an

2) seal.Talney's brief, which she believed contained some attorney client privilege material
  to

Although the trial court ultimately denied these motions and allowed Talney to withdraw,

Greene's special counsel was successful in opposing Talney's motion that Greene had forfeited

his right to counsel, which resulted in the trial court's ordering the Department of Assigned
Counsel to   assign   another attorney to represent Greene at trial.   We discern no deficiency in

Greene's special counsel's performance; nor has Greene demonstrated that he was prejudiced by

any of her actions. Again, Greene's ineffective assistance argument fails.

              E. No Evidence Counsel " isled"Greene; Statements in Brief Proper
                                     M

        Next, Greene asserts that he received ineffective assistance because his special counsel
                                                                                 "

1)misled" him when moving to hold an ex parte hearing to discuss Talney's motion to
   "
withdraw and motion for an order that Greene had forfeited his right to counsel; and (2)

erroneously stated in her brief that Greene was "not cooperat[ing] with the [ competency]

examiner."PRP at 16 (ground 4); at 18. Again we disagree.
                              PRP




                                                 22
No. 42263 8 II consolidated with No. 43457 1 II)
          - - (                            - -


           The record does not reflect whether the trial court ever ruled on Martin's motion for an ex

parte hearing. Greene does not provide any evidentiary support that the trial court actually held
such an hearing ex parte; nor does he explain how Martin "misled"him by filing her motion.

Greene also fails to argue that filing this motion, on which the trial court may or may not have

ruled, 1)was deficient performance, rather than counsel's tactical choice and (2)prejudiced
       (
him.   Similarly, Greene also does not explain how Martin's statement that he (Greene) could

have an undiagnosed mental illness but that this could not be determined because he was not

cooperat[ ng]with [his competency]
        i                                    examiner " (     1)was deficient performance, rather than

counsel's tactical choice; and (2)
                                 prejudiced him. Greene's ineffective assistance arguments on

these bases also fail.


                              F. Ongoing Ineffective Assistance Assertions

           Last, Greene                      still ...
                          asserts that he is "           being denied ineffective assistance" because (1)

his trial counsel failed to file "motion[
                                        s]" "
                                          in crucial parts" of his pretrial and trial proceedings

and (2) appellate counsel raised the same issues that he did in his SAG. PRP at 25 (ground
       his

5).
  These argument also fail.

           Again, Greene does not explain which motions his trial counsel allegedly neglected to file
on   his   behalf. And the record shows that Greene's appellate count filed her opening brief

nearly a month and a half before Greene filed his Amended SAG, in which Greene then asserted

21PRPat18
22
   And, to the extent that Greene argues his trial counsel was deficient in failing to file a
continuance and a Knapstad motion, we have already addressed and rejected these arguments in
his direct appeal. And he fails to demonstrate why the interests of justice require relitigation of
these issues. See Yates, 177 Wn. d at 17; In re Pers. Restraint ofStenson, 142 Wn. d 710, 720,
                               2                                                 2
 16 P. d 1 ( 2001).
     3

                                                         23
r




    No. 42263 8 II consolidated with No. 43457 1 II)
              - - (                            - -


    the same arguments as appellate counsel. Moreover, the sequential timing of appellate counsel's

    and Greene's filing their respective briefs conclusively demonstrates that appellate counsel was

    not deficient because, as Greene implausibly asserts, she merely "copied"his SAG arguments.

    Greene not only misstates the record on this point, but also fails to show deficient performance

    on these last two bases.


           We affirm Greene's convictions and we deny his personal restraint petition.

           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




    We
         concur,.
    Penoyyar,1J /
    Bjorgen, I.




                                                   N
