                                                                          FILED
                                                                       August 4, 2016
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division Ill




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

STATE OF WASHINGTON,                         )
                                             )         No. 32955-1-111
                    Respondent,              )
                                             )
      v.                                     )
                                             )
DAVID WAYNE HAMLLIK,                         )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

      KORSMO, J. -The only two issues we consider in this appeal, from convictions

for second degree incest and third degree child molestation, are the two contained in

David Hamllik's prose statement of additional grounds (SAG). We affirm the

convictions.

                                         FACTS

       One morning a young man awoke to find he was naked from the waist down and

Mr. Hamllik was stroking his penis. The touching continued despite the victim's protests

until a visitor knocked on the door of the house. The incident was reported to the police.

      Mr. Hamllik initially denied to the investigating officers that he touched the child,

but later confessed to the molestation. Charges of third degree child molestation and

second degree incest, both with domestic violence allegations, were filed. The defendant
No. 32955-1-111
State v. Hamllik


filed seven different waivers of his right to a speedy trial. Clerk's Papers (CP) at 8-13,

15. His final waiver of his right to a speedy trial acknowledged his time for trial period

was extended until October 22, 2014. CP at 15. He also filed a written waiver of his

right to a jury trial. CP at 14. The matter eventually proceeded to a bench trial before the

Honorable Brian Altman on October 7, 2014.

       During trial, defense counsel cross-examined both of the officers who had

interviewed his client about their interview techniques and the fact that the officers had

asked Mr. Hamllik about his previous sexual relationships with other men. The

prosecutor asked a single question on redirect examination of the final officer concerning

why the interview had addressed Mr. Hamllik's sexuality. The officer explained that

some of that information was already known to the police and they were using it as a

"guideline" to assess how truthful he was being with them.

      The trial judge convicted Mr. Hamllik as charged. The court imposed concurrent

standard range sentences. Mr. Hamllik then timely appealed to this court.

      Appointed counsel filed a brief solely challenging the absence of findings required

by CrR 3.5 and CrR 6.1. The trial court entered the missing findings. Appellate counsel

conceded the issues raised in the brief of appellant were now moot and asked this court to

consider the two issues raised by Mr. Hamllik in his SAG. Since the prosecutor had




                                             2
No. 32955-1-III
State v. Hamllik


already responded to those issues, this court considered the SAG at its conference on this

case. 1

                                          ANALYSIS

          Mr. Hamllik presents two claims. We address first his claim that the officers

wrongly questioned him about his sexuality before turning, quite briefly, to related

contentions that he was "forced" to waive his time for trial and jury rights.

          Mr. Hamllik initially argues that "my private lifestyle was used as evidence in my

trial[,] which is a violation of ER 404(b )." SAG at 1. This claim fails for multiple

reasons.

          First, evidence admitted in violation of the Rules of Evidence does not present a

manifest constitutional error that this court can consider for the first time on appeal. RAP

2.5(a); Dowling v. United States, 493 U.S. 342, 352, 110 S. Ct. 668, 107 L. Ed. 2d 708

(1990) (The admission of other "bad acts" evidence under ER 404(b) does not present a

constitutional issue.). Mr. Hamllik did not object to the evidence in the trial court. Thus,

he cannot challenge it now. Id.

          Second, all of the evidence he now seeks to challenge was adduced by his own

counsel during cross-examination of the two officers about their interview technique in

an effort to paint the defendant's statement as a false confession. The doctrine of invited


          1
      Normally, this court will ask both counsel to brief SAG issues of potential merit,
RAP 10.IO(t), but we vary from that approach under the facts of this case.

                                               3
No. 32955-1-III
State v. Hamllik


error therefore precludes our consideration of this claim. E.g., State v. Henderson, 114

Wn.2d 867, 792 P.2d 514 (1990).

       Third, as a related difficulty with this argument, there is no indication this

evidence was ever used against Mr. Hamllik. He elicited the testimony in order to attack

his confession. The trial court gave no indication it considered the testimony as any form

of proclivity evidence. In short, he used the evidence for his own benefit and there was

no indication it was used to support the State's case against him.

       Finally, it is presumed that in a bench trial the trial judge will not consider

improperly admitted evidence. State v. Read, 147 Wn.2d 238, 241, 53 P.3d 26 (2002);

State v. Miles, 77 Wn.2d 593,602,464 P.2d 723 (1970). That is the case here. Nothing

in the record suggests Judge Altman considered the evidence for any improper purpose.

       The ER 404(b) claim is without merit.

       Mr. Hamllik also argues he was forced to give up his right to a jury trial and to

continue his trial date. The existing record does not support his claim. The case was

continued at defense request and a jury trial waiver entered on July 21, 2014. Report of

Proceedings (July 21, 2014) at 23-28. Nothing in the record of that hearing indicates Mr.

Hamllik was forced to give up any of his rights. If he has evidence bearing on such a

claim, his remedy is to file a personal restraint petition. E.g., State v. Norman, 61 Wn.

App. 16, 27-28, 808 P.2d 1159 (1991).




                                              4
No. 32955-1-III
State v. Hamllik


      On this record, both of the contentions of the SAG are without merit.

Accordingly, the convictions are affirmed.

      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:




                                    j

      Pennell, J.




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