                                                                                                                               FILED
                                                                                                                    COURT OF APPEALS
                                                                                                                             DIVISIO N II
                                                                                                                  2015 JUN - 4
                                                                                                                               AM 8: 36
                                                                                                                  ST    E'
                                                                                                                                WASHINGTON
                                                                                                                  BY

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                         DIVISION II

 STATE OF WASHINGTON,                                                                        No. 45736 -9 -I1


                                              Respondent,


             v.

                                                                                     UNPUBLISHED OPINION
 ALLEN D. PROSHOLD,


                                              Appellant.




             MAxA, J. —         Allen Proshold appeals his convictions of first degree kidnapping ( domestic

violence) and second degree assault ( domestic violence) and the imposition of legal financial

obligations ( LFOs) as part of his sentence. We hold that ( 1) the trial court did not violate his

                                                        for                 counsel, ( 2)   the trial court' s instruction on
right   to   counsel      in   handling his   request         new   trial


the definition       of "abduct" was not ambiguous, (               3) the trial court did not err in allowing the jury

to deliberate knowing that one of the jurors had to leave at a certain time to catch a train, (4)

defense counsel did not provide ineffective assistance of counsel by failing to ask that an

alternative       juror   substitute   for   a juror   that had to leave, ( 5) Proshold cannot challenge the trial


court' s imposition of LFOs because he did not object below, and ( 6) Proshold' s assertions in his

statement of additional grounds ( SAG) have no merit. Accordingly, we affirm Proshold' s

convictions and sentence.
45736 -9 -II



                                                          FACTS


        Proshold and Kristy Pruett lived in Proshold' s van. On August 1, 2012, Proshold waited

in his van while Pruett went to her drug dealer' s home to buy heroin. According to Pruett, when

she returned to the van Proshold looked like awild man, as he had just injected a very large

amount of methamphetamine. Pruett was unable to purchase any heroin and, according to Pruett,

Proshold demanded that she give him the money she had planned to use. According to Pruett,

after she said no, Proshold choked her, ripped off her underwear, yanked down her bra, and

searched her for the money, including inside her vagina. During these events, Proshold was

driving erratically and Pruett was screaming out of the window for someone to call 911.

        When the van passed through a neighborhood, two men heard Pruett' s screams, got in a,


truck, and followed the van. When they found the van parked at a nearby house, they saw

Proshold get out and walk into the house' s backyard. Both men testified that Pruett was beaten


up, crying, and hysterical, was holding her panties, and stating that she had been raped. She gave

similar accounts to the police.


        The State charged Proshold with second degree rape, attempted first degree robbery,

second degree assault, and first degree kidnapping. During a readiness hearing on. October 24,

2013, Proshold asked for a new attorney:

        Your Honor, my attorney is an incompetent goob. He' s derelict in his duties. I' m
        looking      at a   life   sentence.   I' m going to trial next week. There are three potential
        witnesses I asked him to talk to and he hasn' t; there' s a matter I asked him to look
        into the first time         we met and    he hasn' t.       I asked him point -blank yesterday what
        he'    s   done for my      case, and   his   one and   only   answer was --   was listened to some
        audio recordings. Inadequate representation. I would like another attorney, please.




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Report of Proceedings ( RP) at 1 - 2. Proshold' s attorney then explained to the judge that he would

like a continuance to further prepare and that he was only recently able to interview Pruett. After

granting a continuance, the trial court asked defense counsel if he believed that he still could

adequately prepare and work with Proshold. Defense counsel said that he could. The trial court

then denied the motion for new counsel, ruling:

         Mr. Proshold, I' m   not   going to    grant   that   motion   today. That' s     not --   you can bring
         that again. I' m going to have you and [ defense counsel] talk after he' s had a chance
         to         what he' s been able to do at this point
              go over                                                        and what    his   plans are.   If you
         want to come back, we' ll chat about it again.


RP at 7. Proshold did not again raise the issue or request new counsel.

         Before trial began, the bailiff informed the trial court and counsel that juror 5 had a train


ticket for 3: 00 PM the following Monday. The jury began deliberations on Friday, but was

unable to reach a verdict that day. At 8: 50 PM, the trial court released the jury until the following

Monday. On Monday morning, the jury indicated that it was at an impasse and the trial court

polled   the jury foreman to   see   if there   was a   possibility     of   reaching   verdicts.'   The foreman said


that there was a reasonable probability that they could reach a verdict on three of the four counts.

The trial court then told them to continue deliberations. The trial court suggested that it would

recess deliberations if necessary. At 2: 19 PM, the jury reached verdicts on all four counts.

           The jury acquitted Proshold of the rape and attempted robbery charges, but it found him

guilty of assault and kidnapping and made a special finding that the matter involved domestic

violence. In sentencing Proshold, the trial court used a preprinted judgment and sentence




1 Juror 5 brought her luggage with her to court, which was about 15 minutes from the train
station.




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document that included a boilerplate section indicating that the court was making a finding that

Proshold had the ability or future ability to pay LFOs. Proshold appeals his convictions and

sentence.



                                                 ANALYSIS


A.        REQUEST FOR NEW COUNSEL


         Proshold argues that the trial court conducted an inadequate inquiry into his request for

new counsel. He claims that the trial court failed to ask specific and targeted questions in order

to make a meaningful evaluation of the problem and an informed decision. We disagree.

          We review a trial court' s refusal to appoint new counsel for an abuse of discretion. State

v.   Lindsey,   177 Wn.   App.   233, 248, 311 P. 3d 61 ( 2013), review denied, 180 Wn. 2d 1022 ( 2014).


A trial court abuses its discretion where its decision is manifestly unreasonable or based on

untenable grounds. Id. at 248 -49. A decision is based on untenable grounds if it rests on facts

unsupported in the record or was reached by applying the wrong legal standard. Id. at 249.

When reviewing a trial court' s refusal to appoint new counsel, we consider (1) the extent of the

conflict, (2) the adequacy of the trial court' s inquiry, and ( 3) the timeliness of the motion. Id.
          None of these factors shows an abuse of discretion here. Proshold' s complaint at the


October 24 readiness hearing was that his attorney had failed to interview witnesses or

adequately prepare for trial. Defense counsel acknowledged that he needed more time for trial
preparation and he asked for a continuance to better prepare. The trial court granted the

continuance and asked Proshold to again raise the issue if he and defense counsel could not

resolve their differences. Under these circumstances, the trial court appeared to understand the

extent of the conflict and allowed the continuance to resolve the conflict.




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45736 -9 -II



          Further, after this initial discussion and after the trial court granted a continuance,


Proshold did not again raise the issue or request new counsel. This fact suggests that any conflict

was resolved before trial.


          We hold that the trial court did not abuse its discretion in the handling of Proshold' s

request for new counsel.


B.        KIDNAPPING INSTRUCTION


          Proshold argues that the trial court' s kidnapping instruction defining the term " abduct"

was ambiguous and allowed the jury to convict him without proof of all the essential elements of

the crime. We disagree.2

          We review a jury instruction challenge de novo and evaluate the challenge in the context

of the instructions as a whole. State v. Bennett, 161 Wn.2d 303, 307, 165 P. 3d 1241 ( 2007).


 Instructions are sufficient if they are supported by substantial evidence, allow the parties to

argue their theories of the case, and when read as a whole properly inform the jury of the

applicable     law." State   v.   Hutchinson, 135 Wn.2d 863, 885, 959 P. 2d 1061 ( 1998). When


reviewing a jury instruction claim, we give deference to a trial court' s wording of its instructions.

State v. O' Hara, 167 Wn.2d 91, 108 n.4, 217 P. 3d 756 ( 2009).

          As   charged   here, "[   a] person is guilty of kidnapping in the first degree if he or she

intentionally    abducts another person with       intent:... (   c) To inflict bodily injury on him or her."



2 Proshold acknowledges that he did not object below, but claims that this was a manifest
constitutional error that we can review for the first time on appeal under RAP 2. 5( a)( 3).
Although we disagree that the jury instruction was erroneous, we exercise our discretion under
RAP 2. 5( a) to address an issue raised for the first time on appeal and consider the issue on the
merits.




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45736 -9 -II



RCW 9A. 40. 020( 1). " `         Abduct' means to restrain a person by either ( a) secreting or holding him

or her in a place where he or she is not likely to be found, or (b) using or threatening to use

deadly force."        Former RCW 9A.40. 010( 1) (               2011). 3

          The trial    court   instructed the jury that "[         a] bduct means to restrain a person by either

secreting or holding the person in a place where that person is not likely to be found or using or

threatening to       use
                           deadly   force:"     Clerk' s Papers at 29. The only difference between the

instruction     and   the statutory definition         is the   omission of   the "(   a)"   and "(   b)"   notations.




          Proshold argues that this instruction created an ambiguity because the jury could have

interpreted the language          as    defining   two   means     to   accomplish     kidnapping: ( 1) restraining a

person by either secreting or holding the person in a place where that person is not likely to be

found, or (2) using or threatening to use deadly force. Interpreted this way, the second means

would not contain the statutory element of restraint and would allow the jury to convict him of

kidnapping without proof of restraint. He argues that this ambiguity was particularly harmful

because he testified that he did not restrain Pruett and jurors could have believed that he did not

restrain her but that he did threaten or assault her.

          Although the better           practice would     have been to include the "(          a)"    and "(   b)" notations that


were used in the statute, we disagree that removing them from the trial court' s instruction created

any ambiguity. The structure of the sentence and the verb tenses used make it clear that the term

  abduct" means " to restrain a person" in one of two ways: by " secreting or holding" that person

or "   using   or   threatening   to    use   deadly   force." A juror would understand that the State had to




3 RCW 9A.40. 010 was amended in 2014, but this amendment did not affect the subsection cited.
LAWS     of    2014,   ch.   52, § 2.



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45736 -9 -II



show restraint in addition to either " secreting or holding" or " using or threatening to use deadly

force."   Therefore, we hold that the trial court did not error in instructing the jury on the

definition of "abduct."


C.        JURY DELIBERATIONS


          Proshold argues that he was denied his right to a fair trial because the jurors were

pressured to return a verdict because juror 5 had to leave to catch a train on the afternoon of the


last day of deliberations. 4 We disagree.
          The Sixth Amendment to the United States Constitution and article I, sections 3 and 22 of

the Washington Constitution guarantee a defendant the right to a fair jury trial. This right

includes " the right to have each juror reach his verdict uninfluenced by factors outside the

evidence,   the    court' s proper   instructions,   and   the   arguments of counsel."   State v. Boogaard, 90


Wn.2d 733, 736, 585 P. 2d 789 ( 1978).


          A claim that the trial court coerced a jury verdict can be raised for the first time on

appeal.    State   v.   Ford, 171 Wn.2d 185, 188, 250 P. 3d 97 ( 2011).         To prevail, the appellant must


establish a reasonably substantial possibility that the trial court' s intervention improperly

influenced the verdict. Id. at 188 -89. We examine the totality of the circumstances in assessing

whether the appellant has made an affirmative showing of improper influence. Id. at 189.

          A trial court can violate a defendant' s jury trial right by imposing time pressures on a jury

to   return a verdict.     See State   v.   Crowell, 92 Wn.2d 143, 148, 594 P. 2d 905 ( 1979) ( bailiff erred




4 Proshold also notes this same argument in his SAG. Because appellate counsel addressed this
issue in his supplemental brief, we do not separately address Proshold' s SAG claim on this
ground.
45736 -9 -II



in telling jury it   needed    to   return a verdict     by   a certain   time); Boogaard, 90 Wn.2d at 739 -40



trial court impermissibly suggested that jury needed to return a verdict within a half hour.

          However, the same rule does not apply when jurors have their own time constraints. In

State v. Jackman, the defendant alleged that he was denied a fair trial because the jury may have

hastened its deliberations because the foreman                 was overdue     for     a vacation.   113 Wn.2d 772, 777,


783 P. 2d 580 ( 1989). Our Supreme Court disagreed and distinguished both Boogaard and


Crowell. The      court stated       that "[ i] mportant distinctions      exist ...    between a case where a court


official urges jurors to haste and a case where the jurors have their own motives for haste. In the


former situation, jurors suffer an outside influence on their decisionmaking; in the latter, only

their   own ` motives[,] ...        intentions   and   beliefs'   guide   them." Jackman, 113 Wn.2d at 779


 quoting Cox v. Charles WrightAcad., Inc., 70 Wn.2d 173, 179 -80, 422 P. 2d 515 ( 1967)).

          This case involves a juror' s own time constraints, not judicial imposition o f time


pressures. Neither the trial court nor the bailiff encouraged the jury to hasten its deliberations.

Instead, the trial court took the proper course and allowed the jury to continue deliberating. In

fact, the trial court suggested that it would recess deliberations if necessary. Proshold fails in his

burden of showing a reasonably substantial possibility of judicial influence on the jury' s verdict.

Ford, 171 Wn.2d at 188 -89.


          We hold that the trial court did not violate Proshold' s right to a fair jury trial by allowing

juror 5 to deliberate despite the fact that she had to leave at a certain time to catch a train.




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45736 -9 -II



D.      INEFFECTIVE ASSISTANCE OF COUNSEL


        Proshold argues that defense counsel' s failure to request that juror 5 be excused and a

substitute juror brought into deliberations denied him his right to effective assistance of counsel.

We disagree.


        We review claims of ineffective assistance of counsel de novo. State v. Sutherby, 165

Wn.2d 870, 883, 204 P. 3d 916 ( 2009).        To prevail on an ineffective assistance of counsel claim,

the defendant must show both that ( 1) defense counsel' s representation was deficient, and ( 2) the

deficient representation prejudiced the defendant. State v. Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d

1260 ( 2011).    Because we held above that juror 5' s conduct did not taint the fairness of the trial,

trial counsel had no obligation to object to the deliberations continuing with juror 5 empaneled.

Therefore, we hold that Proshold cannot establish that defense counsel' s performance was

deficient or that Proshold suffered any prejudice, and that his claim fails.

E.      LEGAL FINANCIAL OBLIGATIONS


        Proshold' s judgment and sentence contains a finding that he had the ability to pay the

LFOs imposed. Proshold did not challenge this finding during sentencing, and we generally do

not consider issues raised for the first time on appeal. State v. Blazina, 174 Wn. App. 906, 911,

301 P. 3d 492 ( 2013),    remanded,         Wn.2d ,        344 P. 3d 680 ( 2015).


         Our decision in Blazina, nearly seven months before Proshold' s sentencing, provided

notice that the failure to object to LFOs during sentencing waives a related claim of error on

appeal. Id. As our Supreme Court noted in reviewing our decision in Blazina, an appellate court

      use   its discretion to   reach unpreserved claims of error.    Blazina, 344 P. 3d   at   681.   We
may


decline to exercise such discretion here.




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F.        SAG ASSERTIONS


          1.   Victim' s Pants as Physical Evidence


          Proshold argues that the State violated his due process rights by not introducing into

evidence Pruett' s undamaged pants at trial. Although Pruett testified that she was wearing a

dress, Proshold testified that she was wearing pants just prior to the time of the assault. He

argues that because the pants fit her tightly, it would have been impossible to forcibly remove

them without ripping them, suggesting that she took them off voluntarily. We reject Proshold' s

argument.



          Under both the United States and Washington constitutions, due process in criminal


prosecutions requires fundamental fairness and a meaningful opportunity to present a complete

defense. State   v.   Wittenbarger, 124 Wn. 2d 467, 474 -75, 880 P. 2d 517 ( 1994).   To satisfy due

process, the prosecution has a duty to disclose material exculpatory evidence and a related duty

to preserve it. Id. at 475. The State' s failure to preserve evidence that is material and


exculpatory violates a defendant' s right to due process and requires that the charges against the

defendant be dismissed. Id.


          Proshold' s claim fails for two reasons. First, there is no showing that the State withheld

this evidence from the defense. The pants were taken into evidence and thus available to both

the State and the defendant. Second, evidence about how the pants fit the victim is not in the

record and therefore not properly before us on appeal. We do not address claims based on facts

outside the record on direct appeal. State v. McFarland, 127 Wn.2d 322, 337 -38, 899 P. 2d 1251

 1995).




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        2.     Victim' s Mental Health History

        Proshold argues that the trial court erred in preventing him from examining Pruett about

her mental health history because doing so seriously undermined his defense. He argues that the

evidence would have shown her pattern of behavior and willingness to go to the hospital,

undermining her testimony at trial that she did not want to go to the hospital. We disagree that

the trial court erred.


        Proshold did not present a proper foundation for admission of Pruett' s mental health

history into evidence. Proshold offered no evidence of Pruett' s mental health history, no

evidence that she had been involuntarily committed, and no evidence that this past behavior,

even if true, related to her behavior that day. Therefore, we hold that the trial court did not abuse

its discretion in excluding this evidence.

        3.     Credit For Time Served


        Proshold argues that his judgment and sentence was amended on March 2, 2014, to

remove an additional 39 days of credit for time served when that time already had been

subtracted at his original sentencing. However, this is a matter outside the appeal record. As

noted above, we do not address claims based on facts outside the record on direct appeal.

McFarland, 127 Wn.2d at 337 -38. Therefore, we do not consider this claim.




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        We affirm Proshold' s convictions and 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.




We concur:




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