                                                                                            FILED
                                                                                       COURT OF APPEALS
                                                                                          DIVISION II

                                                                                      2015 .MAY - 5 AM 9: 27

                                                                                      STATE OF WASHINGTON
                                                                                       BY
                                                                                                 P JTY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                     DIVISION II


    STATE OF WASHINGTON,                                                              No. 45260 -0 -II


                                        Respondent,


          v.



    MICHAEL DON OLMSTED,                                                         UNPUBLISHED OPINION


                                        Appellant.


          JOHANSON, C.J. —            Michael Don Olmsted appeals his jury trial conviction for second

degree    assault (     domestic     violence)      and his      life   sentence    under the   Persistent   Offender


Accountability Act (POAA). 1 He argues that ( 1) the prosecutor committed reversible misconduct

in closing argument by trivializing the burden of proof, vouching for the victim' s credibility, and

arguing facts    not     in   evidence, (   2) the trial court violated his right to public trial by having the

parties   exercise      their peremptory challenges         on paper, (     3)    he was denied his right to a jury

determination by a reasonable doubt of whether he had two prior strike offenses under the POAA,

and ( 4) the sentencing court erred by including a facially invalid 1994 second degree assault

conviction     in his   criminal   history    and   using this   conviction as a strike offense.    We hold that ( 1)


Olmsted either waived his prosecutorial misconduct claims or failed to prove that the prosecutor' s



1
    RCW 9. 94A. 570.
No. 45260 -0 -II



arguments were improper, (2) the trial court did not violate Olmsted' s public trial rights by having

the   parties exercise   their peremptory      challenges on paper, (     3) Olmsted was not entitled to a jury

determination of his strike offenses, and ( 4) Olmsted fails to establish that his 1994 conviction was


constitutionally invalid on its face. Accordingly, we affirm his conviction and his sentence.

                                                        FACTS


                                                    I. BACKGROUND


         In the early morning hours of February 1, 2013, Olmsted assaulted his girlfriend, Amy

Yeager, in their home. Yeager left on foot to seek medical attention at a nearby urgent care clinic.

Olmsted followed her, yelling at her until she reached the clinic.

          While following Yeager, Olmsted walked by a car occupied by Lukas Garrett McNett.

Olmsted approached the car, cupped his hands against the car' s tinted windows, and started yelling

profanities at McNett. McNett, who did not know Olmsted, called 911 after Olmsted walked away.

McNett later testified that he had never seen anyone so angry and characterized Olmsted as

 raging." 2 Report of Proceedings ( RP) at 164.


          After confronting McNett, Olmsted continued to follow Yeager. Afraid to use her phone

while Olmsted could see her, Yeager did not call 911 until she arrived at the clinic and found a


pay phone that could not be seen from outside the building.

          The responding        officers   first   contacted   Olmsted.    They    noticed   that he had a " very


pronounced     limp,"    and   he told them that his " balls hurt." 2 RP      at   173.   When the officers asked


Olmsted if he was in pain because he had been in an altercation, he responded that he had not been


and that he just had a bad hip. Olmsted refused medical assistance.




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    No. 45260 -0 -II



             When the officers told him he was being detained to allow them to investigate a recently

    reported assault, Olmsted became aggressive and started screaming and accusing the officers of

    having   touched his    painful genitals while      searching him.         The officers did not see any blood or
                                                                           2
    bruising   on   Olmsted' s hands     or   any blood on his clothing.


             After arresting Olmsted, one of the officers proceeded to the urgent care clinic to contact

    Yeager. When the officer arrived at the clinic, Yeager' s nose was bleeding and she was very upset.

    Yeager did      not appear "   intoxicated."   2 RP at 184. Yeager told the officer that she had accidentally

s   kicked Olmsted.


             The clinic transferred Yeager to, an emergency room for further evaluation. Yeager' s face

    was bruised and -swollen on her forehead and under both eyes, and both sides of her jaw were


    tender. The doctor concluded that these injuries could not have been caused by a single blow.

             The officer later visited Yeager in her apartment and observed blood on the bed, blood on


    the dresser in the bedroom, a broken mirror, needle -nose pliers next to the bed, and Yeager' s urine-

    soiled pants. The officer also noticed that the television was in the bathroom.

                                                       II. PROCEDURE


             The State charged Olmsted by amended information with second degree assault ( domestic

    violence). 3 The case proceeded to a jury trial; Olmsted argued that he had struck Yeager once in

    self defense
         -       after she kicked him in the testicles.




    2 About 18 hours after the officers booked him into jail, a nurse and a physician' s assistant
    examined Olmsted; his scrotum was swollen and bruised. Several days later, a private investigator
    hired by the defense photographed the injuries and noted that the area was bruised.
    3
        The State    also charged    him in the    alternative with attempted second       degree   assault.   The trial
    court later refused to instruct the jury on this alternative charge and it is not at issue on appeal.

                                                              3
No. 45260 -0 -II



                              A. JURY SELECTION AND TRIAL TESTIMONY


        During voir dire, the parties exercised their peremptory challenges by "passing a clipboard

back and forth" until each side had exercised its peremptory challenges or was satisfied with the

panel. 5 RP at 715. Neither party objected to this process.

        In addition to the facts described above, Yeager testified that Olmsted had struck her


repeatedly in the head     and   that he   struck   her   so   hard that   she urinated   in her   pants.   Yeager also


testified that Olmsted broke a mirror, threw a television into the bathroom, and threw a pair of


pliers at   her.   Yeager further testified that her nose was still bleeding when she arrived at the

hospital about 10 minutes after the assault.


        She also testified that at one point after he started to hit her, Olmsted accused her of having

kicked him " in [ the] balls."    3A RP     at   268.   Yeager could not recall kicking Olmsted and denied

having kicked him intentionally, but she testified that she might have accidentally kicked him

when she kicked off some blankets. Although she admitted she had told the investigating officer

that she had accidentally kicked Olmsted, Yeager asserted that this was only because this was what

Olmsted had told her repeatedly during the assault.

        In contrast, Olmsted testified that Yeager had kicked him in the testicles after he discovered


she had been using methamphetamine and told her to leave. He asserted he had reflexively slapped

Yeager once across the face and she then started hitting him. He testified that he had accidentally

pulled the television down and that Yeager threw a mirror at him. He further testified that shortly

after Yeager left, he left the house to purchase some cigarettes at a local convenience store.

        Olmsted also explained his contact with McNett. Olmsted testified that after Yeager left,


he had considered going to a hospital, not the nearby urgent care clinic, to address his injury. When


                                                               4
No. 45260 -0 -II



he went outside, he noticed someone sitting in a car looking at a cell phone and playing some loud

music, so he shouted over the music asking for a ride to the hospital. The person in the car " looked

at [ Olmsted] like [ he] was stupid" and did not offer him a ride. 3B RP at 403.


        Olmsted also explained that he was not being aggressive towards the arresting officers. He

asserted that when the officers were searching him, they made contact with his testicles and he was

in pain, which could have been misconstrued as aggression.

                                                  B. CLOSING ARGUMENT


        The State started its closing argument by stating,

        We' re here today because               of [ Olmsted' s]       rage.   Rage when he attacked [ Yeager],
        rage as he smashed items in the house, rage as he followed her, screaming at her in
        the night, rage as he tried to attack an innocent person in a car, rage as he taunted
        the   police.   We' re here because            of   that   man and      the   crimes   he   committed.   He' s
        here today charged with assault in the second degree for causing substantial bodily
        harm to Amy Yeager. And the Judge gave you the jury instructions that define it
        and I' m going to go through that and match up how the evidence fits.

3B RP   at   498 ( emphasis       added).       Olmsted did not object to this argument.


        Later, when discussing the substantial bodily harm element, the State argued,

                   So let'   s   talk   about   the injuries in this      case, what we    have.      Within an hour
        of this happening, we have Officer Long who is meeting with Amy Yeager at the
        urgent care clinic.  She instantly said she sees black eyes developing even that
        quickly.  Her nose  is completely swollen. She has an abrasion, a huge bump up
        here. Both sides of her jaw are swelling. She also is bleeding from her nose.
                And I want you to think about this: by the time Officer Long saw her, just
        about an hour had passed since these assaults. She is still bleeding from her nose,

        even after applying pressure all the way down to the hospital.      That is a lot of
        strength.     That is      a    huge force that     makes you continue          to bleed for   an   hour. She
        also testified her nose was so swollen she' s having problems breathing out of it.

3B RP   at   502 ( emphasis       added).       Olmsted did not object to this argument.


        In his closing argument, Olmsted argued that the State had not proven the crime beyond a

reasonable doubt and reminded the jury of the reasonable doubt standard, stating,

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No. 45260 -0 -II



        They have to prove it beyond a reasonable doubt, more than in a civil case, more
        than in      a --    any    case   but the      criminal   law. It' s the highest burden of proof in our
        system. It' s very clear, and I think we' re all talking and told about that earlier.

3B RPat519.


        He also argued that Yeager' s testimony was inconsistent because she had told the police

that she had kicked him but had testified that she had not kicked him; Olmsted referred to Yeager' s


inconsistent    statements as         her taking the jury        on " Miss   Toad' s Wild Ride." 3B RP at 517. Olmsted


further argued that the jury should consider the fact that Olmsted' s hands were not injured, cut, or

otherwise marked, which was inconsistent with someone having hit another person in the head

multiple times.


        In rebuttal, the State argued,


                     But what happens when you take a hard object and put it on a soft object?
        The     soft   object,          injury. The hard -- and if you know how to hit
                                     that gets the

        someone, you' re not going to injure your hands. It' s ludicrous to think that anyone
        who has hit someone multiple times, that you' re going to bloody up your hands. If
        you know how to punch someone, you' re punching someone correctly, you' re not
        going to injure yourself. And I                   mean --    and that is just common knowledge.


3B RP   at   546 ( emphasis          added).      Olmsted did not object to this argument.


        The State also argued,


                     He     also says      that   she   took   us -- [   Yeager],   she   took   us on   this -- this wild
        train    ride . . .,         and we couldn' t believe anything she said because she' s so
        inconsistent. And I don' t know where that' s coming from because she has been
        nothing but consistent. She' s been consistent, she' s been consistent about the pain,
        she' s been consistent about what happened.
                     The sole thing, the sole thing that has changed in the multiple times she' s
        had to tell this story is about whether she kicked him or not, and she said, " If I told
        them that that' s what happened, I heard the 911, I told the officers, then that' s what
        I    said,   but    at   this point, I just don' t remember."
                                                         I mean, and that' s someone being
        candid. How easy would it be for her to sit up here and just repeat the same thing
        she had said, but she didn' t. She was being honest. She was under oath.

3B RP at 546 -47. Olmsted did not object to this argument.

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    No. 45260 -0 -II



            The State also commented on Olmsted' s characterization of the reasonable doubt standard


    and argued that it did not matter whether either counsel thought the State had met its burden. The


    State then argued,


                     It' s proof beyond a reasonable doubt, and the evidence strongly supports
            that in this case. Proof beyond a reasonable doubt doesn' t mean proof beyond any
            doubt. It' s a reasonable doubt, a doubt you can sleep with.

    3B RP   at   542 ( emphasis      added).     Olmsted did not object to this argument.


            The jury found Olmsted guilty of second degree assault ( domestic violence).

                                                           C. SENTENCING


            At sentencing, the State argued that Olmsted had two prior strike convictions under the
                                                                                                               4
    POAA.        One   of   the   prior offenses was a          1994   second     degree    assault conviction.       The State


    provided the trial court with copies of the 1994 information, Olmsted' s 1994 statement of


    defendant    on plea of       guilty ( SDPG), and the judgment and sentence.


            Count V of the 1994 information alleged,


            That he, MICHAEL DON OLMSTED, did in the County of Clark, State of
            Washington, on or about the 2nd day of November, 1994, did knowingly assault
            Matthew McGrady, a human being, with a deadly weapon, to -wit: a pool cue or
            club,   in violation         of [former   ] RCW 9A. 36. 021( 1)(   c) [(   1988)],   contrary to the statutes
            in such cases made and provided, and against the peace and dignity of the State of
            Washington.
            This crime is a " most serious offense" pursuant to the POAA (Chapter 1, Section 3
            Laws of 1994).


    Ex. 5 ( Information      at   2) (   emphasis added).



            The SDPG         stated       that Olmsted    was   pleading guilty to       count    V. It stated the elements of


    second degree assault:




    4 The other prior conviction is not at issue.




r
No. 45260 -0 -II



         On Nov. 2, 1994, in Clark  Cy WA, [ Olmsted] knowingly assaulted Matthew
         McGrady with a deadly weapon, to -wit: a pool cue.

Ex. 5 ( SDPG   at   1) (   emphasis added).   But in his statement, Olmsted stated,


         On Nov. 2, 1994, in Clark Cy., WA, I did assault Matt McGrady with a pool cue.
         I waive my right to assert self defense
                                         -       in order to take advantage of a plea bargain.

Ex. 5 ( SDPG   at   7) (   emphasis added).   The SDPG did not state the statutory basis for the charge.

The judgment and sentence, however, stated that Olmsted had been convicted of second degree


assault under former RCW 9A.36. 021( 1)( c).


         The trial court found by a preponderance of the evidence that Olmsted had two prior strike

convictions under the POAA.5 Because the current offense was also a strike offense, the trial court

sentenced Olmsted to life without the possibility of release under the POAA.

         Olmsted appeals his conviction and sentence.


                                                  ANALYSIS


                                      I. PROSECUTORIAL MISCONDUCT


         Olmsted first argues that the State committed reversible misconduct by ( 1) trivializing the

burden   of proof, ( 2)      vouching for Yeager'   s   credibility,   and (   3)   arguing facts not in evidence.

Olmsted further contends that this misconduct was so pervasive it could not have been cured with


proper instruction. Because the State' s argument was not improper or Olmsted waived these issues


by failing to object to the alleged misconduct, his prosecutorial misconduct claims fail.



5 The State had presented evidence that the person who had committed both of the prior strike
offenses had the same name, social security number, birthdate, tattoos, Department of Corrections
number, and fingerprints. Yeager also identified Olmsted in a mug shot related to one of the prior
offenses and testified that he had the same birth date noted on the documentation for the prior
offenses. Olmsted' s sole objection at sentencing was that the fingerprint comparisons the State
presented were not sufficient to establish his identity.

                                                          8
No. 45260 -0 -II



                                                 A. STANDARD OF REVIEW


         To establish prosecutorial misconduct, Olmsted has the burden of establishing that the

challenged conduct was               both improper       and prejudicial.   State v. Warren, 165 Wn.2d 17, 26, 195


P. 3d 940 ( 2008),      cert.   denied, 556 U. S. 1192 ( 2009).             We review the prosecutor' s conduct " by

examining that       conduct     in the full trial       context,   including   the   evidence presented, `   the context of


the total argument, the issues in the case, the evidence addressed in the argument, and the


instructions      given   to the     jury. "'   State    v.   Monday,    171 Wn. 2d 667, 675, 257 P. 3d 551 ( 2011)


 internal     quotations marks omitted) (          quoting State v. McKenzie, 157 Wn.2d 44, 52, 134 P. 3d 221

 2006)).


         Because Olmsted failed to object to any of the alleged misconduct at trial, however, he is

deemed to have waived any error unless he establishes that the misconduct was so flagrant and ill

intentioned that it caused an enduring prejudice that could not have been cured with an instruction

to the jury and the misconduct resulted in prejudice that had a substantial likelihood of affecting

the   jury   verdict.   State   v.   Emery,     174 Wn.2d 741, 762, 278 P. 3d 653 ( 2012); State v. Thorgerson,


172 Wn.2d 438, 442 -43, 258 P. 3d 43 ( 2011).                       The focus of this inquiry is more on whether the

resulting prejudice could have been cured, rather than the flagrant or ill -intentioned nature of the

remark. Emery, 174 Wn.2d at 762.

                                          B. REASONABLE DOUBT STANDARD


             Olmsted argues that the State engaged in flagrant and ill-intentioned misconduct that could


not have been cured when it trivialized the burden of proof by stating that reasonable doubt was

 a    doubt   you can   sleep   with."    3B RP     at   542. "   Arguments by the prosecution that shift or misstate

the State' s burden to prove the defendant' s guilt beyond a reasonable                                 doubt constitute



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No. 45260 -0 -II



misconduct."     State   v.   Lindsay, 180        Wn.2d 423, 434, 326 P. 3d 125 ( 2014) ( citing     State v. Gregory,

158 Wn.2d 759, 859 -60, 147 P. 3d 1201 ( 2006),                       overruled in part on other grounds by State v.

W.R., Jr., 181 Wn.2d 757, 336 P. 3d 1134 ( 2014)).                       Although we agree that this argument was


improper, we hold that Olmsted has waived this error.


        Olmsted       relies on      State   v.   Anderson, 153 Wn.         App.   417, 220 P. 3d 1273 ( 2009),   review




denied, 170 Wn.2d 1002 ( 2010).                     In Anderson, we held that the State' s closing argument

improperly ( 1) implied that the jury had a duty to convict the defendant unless the jury could find

a   reason not   to    convict, (     2) minimized the importance of the reasonable doubt standard by

discussing the standard in the context of everyday decisionmaking, and ( 3) suggested that the jury

had a duty to find the defendant guilty by suggesting that the juror should focus on the degree of

certainty under which it would be willing to act rather than what would cause it to hesitate to act.

153 Wn. App. at 431 -32. Anderson did not object to these arguments in the trial court. Although

we   held that the State'        s    arguments      were       improper,   we     held that Anderson had " failed to


demonstrate that these comments were so flagrant or ill intentioned that an instruction could not


have   cured   the   prejudice,"     noting that "[   t]he trial court' s instructions regarding the presumption of

innocence   minimized         any    negative     impact   on   the   jury." Anderson, 153 Wn. App. at 432.

         Even if we assume, without deciding, that this argument was improper, we cannot say that

this brief misstatement of the reasonable doubt standard, which was much less egregious than the


several improper arguments in Anderson, could not have been cured by a proper instruction




                                                                  10
No. 45260 -0 -II


                                                                                                         6
reiterating the    reasonable   doubt instruction that the trial        court   had provided the jury.       Accordingly,

we hold that Olmsted has waived this error.

                                                    C. VOUCHING


             Olmsted next argues that the State engaged in flagrant and ill-intentioned misconduct that


could not have been cured by commenting on Yeager' s credibility when it argued that she was

 being honest."       3B RP at 547. We disagree.


             Although prosecutors are not permitted to state their personal beliefs about a witness' s


credibility, they may draw and express reasonable inferences from the evidence produced at trial.

State   v.   Mak, 105 Wn.2d 692, 726, 718 P. 2d 407,            cert.   denied, 479 U.S. 995 ( 1986), overruled in


part on other grounds       by State   v.   Hill, 123 Wn.2d 641, 870 P. 2d 313 ( 1994). Read in context, that


is what happened here. The State was not arguing that it believed that Yeager was being truthful.

Rather, it was responding to Olmsted' s argument that Yeager was fabricating her story by

describing the evidence from which the jury could conclude that Yeager' s testimony was truthful

and not fabricated. Because Olmsted does not show that this statement was improper, he does not

establish prosecutorial misconduct on this ground.




6 This instruction stated,
                A reasonable doubt is one for which a reason exists and may arise from the
        evidence or lack of evidence.   It is such a doubt as would exist in the mind of a
             reasonable person after fully, fairly, and carefully considering all of the evidence
             or lack of evidence. If, from such consideration, you have an abiding belief in the
             truth of the charge, you are satisfied beyond a reasonable doubt.
Clerk' s Papers at 28; 3B RP at 485.


7 State v. Dhaliwal, 150 Wn.2d 559, 577 -78, 79 P. 3d 432 ( 2003).

                                                           11
No. 45260 -0 -II


                                               D. FACTS NOT IN EVIDENCE


          Olmsted next argues that the State engaged in flagrant and ill-intentioned misconduct by

mischaracterizing or embellishing the evidence three different times. Again, we disagree.

          It is improper for the State to argue facts that are not in evidence. In re Pers. Restraint of

Glasmann, 175 Wn. 2d .696, 704 -05, 286 P. 3d 673 ( 2012).                          But the State is allowed to draw


reasonable      inferences from the       evidence.     State v. Stenson, 132 Wn.2d 668, 727, 940 P. 2d 1239


 1997).


          Olmsted first argues that the State' s argument that he had " tried to attack an innocent


person    in   a car"   was not   based   on   the   evidence.    3B RP      at   498.    Although the " attack" may not

have been to McNett' s person, this was a reasonable representation of McNett' s testimony.

Olmsted does not show that this portion of the State' s argument was improper.


          Second, Olmsted argues that the State' s argument that Yeager' s persistent nosebleed

demonstrated he had hit her          with " a    huge force"     was not     based       on   the   evidence.   3B RP at 502.


Again, although there was no testimony about the amount of force needed to cause a persistent

nosebleed,      this    was a reasonable argument        based    on   the   evidence.        Not only was Yeager' s nose

bleeding for a substantial amount of time, she suffered two black eyes and other facial injuries,

and it was reasonable to conclude that she was struck with considerable force when she sustained

those injuries. Olmsted does not show that this portion of the State' s argument was improper.

          Third, Olmsted argues that the State' s argument that it was " common knowledge" that

someone could punch someone without injuring himself if he knew how to punch them " correctly"

was not based on the evidence. 3B RP at 546. We agree that this argument was not based on the


evidence and that knowing someone could escape injury if they punched a person " correctly" is


                                                             12
No. 45260 -0 -II •



not necessarily something most people know. Nor is this statement a reasonable inference from

the record as there was no evidence in the record about whether striking someone else with a fist

does    or    does   not   cause   injury   to the    person   doing   the striking.     But even if this is improper


argument, Olmsted does not show that this improper argument was so flagrant and ill intentioned

                                                                             8
that   it   could not   have been    cured   by    a proper   instruction.       Accordingly, Olmsted has waived this

argument.



                                   E. CUMULATIVE PROSECUTORIAL MISCONDUCT


             Finally, Olmsted argues that these alleged instances of prosecutorial misconduct were so

pervasive they could not have been cured with proper instruction. Again, we disagree.

             Although "` [t] he    cumulative effect of repetitive prejudicial prosecutorial misconduct may

be so flagrant that no instruction or series of instructions can erase their combined prejudicial

effect, "'    such is not the case here. Lindsay, 180 Wn.2d at 443 ( internal quotation marks omitted)

 quoting Glasmann, 175 Wn.2d                 at   707).   Here, the only two instances of improper argument that

Olmsted establishes are ( 1) the State' s brief misstatement of the reasonable doubt standard, and


 2) the State' s comment that it was common knowledge that someone could strike another person


without       injuring himself if he did      so "   correctly." Each argument was distinct and each could have


been easily       cured    by   proper   instruction to the    jury. Additionally, they were two relatively minor

comments in the context of the State' s argument as a whole. We hold that two such errors do not




8 We note that the trial court had already instructed the jury that counsels' arguments were not
evidence; that the jury should disregard any argument that was not supported by the evidence; and
that the evidence the jury could consider was the testimony, stipulations, and exhibits that were
admitted at trial.


                                                                13
No. 45260 -0 -II



amount to such pervasive error that they could not have been cured by proper instruction.

Accordingly, Olmsted' s prosecutorial misconduct arguments fail.

                                               II. PUBLIC TRIAL


          Olmsted next argues that the trial court violated his Sixth Amendment9 and article I, section


2210 rights to a public trial by having the parties exercise their peremptory challenges outside the
                                                                                  Clubll
jury' s hearing    and off   the   record without   first considering the Bone-            factors.   Consistent


with our recent decisions, we hold that no public trial right violation occurred. State v. Marks, 184

Wn.   App.   782, 789, 339 P. 3d 196 ( 2014);       State v. Dunn, 180 Wn. App. 570, 575, 321 P. 3d 1283

 2014),   review   denied, 181 Wn.2d 1030 ( 2015).        Accordingly, this argument fails.

                                            III. STRIKE OFFENSES


          Olmsted next challenges his sentence under the POAA. He argues that ( 1) his life sentence


violates his Sixth Amendment right to a jury determination beyond a reasonable doubt that he had

two prior strike convictions because the trial court made this determination based on a

preponderance of the evidence, and ( 2) the trial court erred in using a facially invalid prior

conviction. These arguments fail.


                             A. PREPONDERANCE OF THE EVIDENCE STANDARD


          As to Olmsted' s first argument, he acknowledged in his opening brief that our Supreme

Court would address this issue in State v. Witherspoon, 180 Wn.2d 875, 329 P. 3d 888 ( 2014),




9 U.S. CONST. amend. VI.

10
     WASH. CONST.    art.   I, § 22.


11 State v. Bone -Club, 128 Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995).

                                                         14
No. 45260 -0 -II



which was not yet issued when he filed is appellate brief in June 2014. Our Supreme Court issued


Witherspoon in July 2014, and rejected this argument, reiterating that the trial court may find the

fact   of a prior conviction        for   purposes of   the POAA   by   a preponderance of      the    evidence.   180


Wn. 2d   at       892 -93.   Accordingly, this argument fails.

                                     B. FACIAL VALIDITY OF 1994 CONVICTION


         Finally, Olmsted argues that the trial court erred in including the 1994 second degree

assault conviction as a strike offense.            He contends that the 1994 conviction is facially invalid

because there was no such crime in Washington as a knowing assault with a deadly weapon in

1994.    He further argues that his 1994 guilty plea was not knowing, voluntary, and intelligent

because it was a nonexistent crime and that he is therefore entitled to be resentenced without the


1994 offense in his criminal history. We disagree.

                       The State is not required to prove the constitutional validity of prior
             convictions   before they can be used at sentencing. State v. Ammons, 105 Wn.2d
             175, 18[ 7 -8] 8, 713 P. 2d 719[, 718 P. 2d 796, cert. denied, 479 U. S. 930] ( 1986).
             Generally, the defendant has no right to contest prior convictions at a subsequent
             sentencing because there are more appropriate methods for contesting the validity
             of prior convictions. Ammons, 105 Wn.2d at 188.
                       But a prior conviction that is unconstitutionally invalid on its face may not
             be   considered at   sentencing. Ammons, 105 Wn.2d         at   187 -88. " On its face" includes
             the judgment and sentence and documents signed as part of a plea bargain. State v.
             Thompson, 143 Wn. App. 861, 866 -67, 181 P. 3d 858[, review denied, 164 Wn.2d
             1035] ( 2008).       A conviction is facially invalid if constitutional invalidities are
             evident without further elaboration. Ammons, 105 Wn.2d at 188.


State   v.    Webb, 183 Wn.        App.   242, 250, 333 P. 3d 470 ( 2014) ( footnote       omitted),   review denied,


182 Wn.2d 1005 ( 2015).


             Here, Olmsted does not establish that his 1994 conviction was constitutionally invalid on

its face because he           was charged with a nonexistent crime.           The second degree assault statute in


effect when Olmsted committed the 1994 second degree robbery, former RCW 9A.36.021( 1)( c)

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No. 45260 -0 -II



provided   that a   person commits second               degree   assault when   he "[   a] ssaults another with a deadly

weapon."     The information and judgment and sentence cite to the correct second degree assault


statute, and Olmsted' s statement in his SDPG establishes the elements required under that statute.


Although the information and statement of the charge in the SDPG included the term " knowingly"

as an element of the crime, this appears to be a scrivener' s error12 and given the citation to the


correct statute and Olmsted' s proper plea statement, the inclusion of this language alone does not


establish facial invalidity.

         Ultimately, to determine whether the 1994 conviction was constitutionally invalid, we need

to also examine whether Olmsted' s counsel or the trial court informed him of the correct elements


before accepting his plea and that is not something we can determine solely based on the

information and the SDPG. See Ammons, 105 Wn.2d at 189 ( determination of whether conviction


was unconstitutional could not be made from face of documents because it was not clear from the


documents alone whether defendant' s attorney or the trial court had properly informed him of the

necessary   elements,       his    rights, or   the   plea consequences).   This inquiry requires us to go beyond




12 Olmsted suggests that the State charged him under a previous version of the second degree
assault statute, former RCW 9A.36. 020( 1)( c) ( 1979), which was repealed effective July 1, 1988.

LAWS OF 1986,       ch.    257, § 9. But former RCW 9A. 36. 020( 1)(            c) (   1979) provided that a person was
guilty of second degree assault if he or she " knowingly assault[ s] another with a weapon or other
instrument or thing likely to produce bodily harm," not a deadly weapon. ( Emphasis added.) See
RCW 9A.04. 110( 6) ( "` Deadly weapon' means any explosive or loaded or unloaded firearm, and
shall   include any       other weapon,         device, instrument,    article, or substance ...      which, under the

circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable
of causing death or substantial bodily harm. "). Although former RCW 9A.36. 020( 1)( c) ( 1979)

contained a knowledge element, it did not require that the defendant commit the assault with a
deadly   weapon, which was what was                    alleged   in the information      and   the SDPG.   Accordingly,
Olmsted does not show that the                         State brought the     1994       charges   under former RCW
9A. 36. 020( 1)(   c) (   1979);   he merely shows that it erroneously included the term " knowingly" in the
information and the SDPG' s statement of the charge.
                                                                 16
No. 45260 -0 -II



the charging and plea documents and precludes us from holding that the 1994 conviction was

unconstitutionally invalid on its face. Accordingly, this argument fails.

        Because Olmsted either waived his arguments or his arguments fail, we affirm his

conviction and his sentence.


        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 2. 06. 040,


it is so ordered.




                                                                            8
 We concur:




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