                                                                                                   FLED
                                                                                        COURT OF APPEALS
                                                                                              DIVISION

                                                                                       2Th JUL 29, AIM: 38

                                                                                       ST'    E      W S.   ST0N


    IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                          DIVISION II


STATE OF WASHINGTON,                                               No. 44186 -1 - II


                                Respondent,


          v.

                                                             UNPUBLISHED OPINION
DAVID L. DARLING,


                                Appellant.




          MAxA, J. —   David L. Darling appeals his convictions of unlawful imprisonment, felony

harassment, and felony violation of a no- contact order ( all with domestic violence

enhancements) and his sentence. He claims that the information charging him with unlawful

imprisonment failed to include all essential elements of the offense, that all three convictions


were the same criminal conduct, and that his attorney provided ineffective assistance in

conceding that one of his offenses was not the same criminal conduct as the other two. In a

statement of additional grounds, Darling challenges the imposition of community custody, the

admission of evidence, and the trial court' s instructions to the jury. He also claims he was

denied his right to effective assistance of counsel on multiple grounds. We find no error, and

affirm.



                                               FACTS


          On August 26, 2012, at about 11: 30 p.m., private security guard Thomas Pelham heard a

woman      screaming. When he illuminated the nearby hillside   with   his headlights, he   saw   Darling
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                                                                        Stop,                     killing          Report
pulling Julie Barnes down the hill. She            was                                  you' re             me."
                                                         screaming, "           stop,


of Proceedings ( RP) at 226. He described Barnes as hysterical, crying, yelling, and trying to pull

herself back up the hill away from Darling. When Pelham stepped from the car he saw Darling

release Barnes, and she fell to the ground into the fetal position. Pelham called the police, who

took Darling into custody.

         While City of Vancouver Police Officer Gerardo Gutierrez was taking a statement from

Pelham, Darling began yelling angrily at Barnes and stated that he was going to get her. Barnes

told Officer Gutierrez that she was homeless and four months pregnant with Darling' s child, and

that   she was    sleeping   on   the   embankment when     Darling   woke      her up. She told Officer Gutierrez


that Darling was angry and was yelling at her. When she tried to leave, Darling pushed her

down, punched her in the face, chest, and belly, and threatened to kill her Barnes later prepared

a written statement describing these events.

         Officer Gutierrez also spoke with Darling, and during that conversation Darling yelled

several times at Barnes that he was going to kill her. He also yelled that the police could not

keep him in jail forever and that when he got out, he was going to " beat her ass" and " kill her."
RP at 184. While Officer Gutierrez was speaking with the police dispatcher to verify that Barnes

had a restraining order against Darling, the dispatcher recorded Darling yelling that he was going
to beat Barnes when he was released.


          The State charged Darling by amended information with unlawful imprisonment

 domestic       violence),   felony     harassment ( death threats) ( domestic     violence),      felony domestic

violence court order violation, and interference with the reporting of domestic violence

  domestic      violence).
44186 -1 - II



         Darling testified at trial that he and Barnes got into an argument about his drinking and

that Barnes started swinging her arms wildly and hitting him. He stated that she lost her balance

and fell while running at him, and he caught her and let her down gently when the security

officer spotted them with his lights. Barnes testified at trial and denied that Darling had punched

her or pulled her down the hill. To counter Barnes' s trial testimony, the State offered, and the

trial court admitted, her written statement.


         The jury found Darling guilty of unlawful imprisonment, felony harassment, and felony

violation of a domestic violence court order. It found him not guilty of interfering with the

reporting of domestic violence. And it found that Darling committed these offenses against a

family or household member.

         At sentencing, the State argued that all three convictions were separate conduct. Darling

argued that two of the offenses were the same criminal conduct, but stated that he was not

arguing that all three offenses constituted the same criminal conduct. The sentencing court

found that the unlawful imprisonment and court order violation amounted to the same criminal


conduct but that the felony harassment was not the same criminal conduct. The court imposed

standard range sentences on the three convictions and imposed 12 months of community custody

on the unlawful imprisonment. conviction.


         Darling appeals his conviction and sentence.

                                               ANALYSIS


A.       ADEQUACY OF THE INFORMATION


          Darling claims that the information failed to articulate all of the essential elements of

 unlawful imprisonment, and therefore he was denied his constitutional right to proper notice.




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Specifically, he claims that the information needed to include the four definitions set out in State
v.   Warfield, 103 Wn.          App.   152, 157, 5 P. 3d 1280 ( 2000). We disagree.


              1.   Standard of Review


          An information must include all essential elements of the offense charged. State v.

Brown, 169 Wn.2d 195, 197, 234 P. 3d 212 ( 2010). Essential elements are those the State must


necessarily prove to establish the criminal act charged. State v. Ward, 148 Wn.2d 803, 811, 64
P. 3d 640 ( 2003).           The primary goal of the essential elements rule is to give notice to an accused

of the nature of the crime that he must be prepared to defend against. State v. Kjorsvik, 117

Wn.2d, 93, 101, 812 P. 2d 86 ( 1991) ( citing 2 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE §


19. 2,   at    446 ( 1984); 1 C. WRIGHT, FEDERAL PRACTICE § 125, at 365 ( 2d ed. 1982)).


              When the adequacy of the information is challenged for the first time after verdict or on

appeal, we ask          two    questions: (   1) whether the necessary facts appear in any form, or by fair

construction, can            they be found in   the charging document;      and,   if   so, (   2) whether the defendant


can show that he nonetheless was actually prejudiced by the inartful language that caused a lack

of notice. Kjorsvik, 117 Wn.2d at 105 -06.


              2.   Elements of Unlawful Imprisonment


              The amended information charged Darling with unlawful imprisonment as follows:

              That he, DAVID LAWRENCE DARLING, in the County of Clark, State of
              Washington, on or about and between August 26, 2012, and August 27, 2012, did
              knowingly restrain another person, to -wit: Julie Ann Barnes; contrary to Revised
              Code of Washington 9A.40. 040 and 9A.40. 10( 6).

Clerk'    s    Papers   at   7. RCW 9A.40. 040 describes       unlawful    imprisonment: "(          1) A person is guilty

of unlawful        imprisonment if he         or she   knowingly   restrains another person."         Former RCW


 9A. 40. 010( 6) ( 2011) defines restrain as:



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44186 -1 - II



          Restrain" means to restrict a person's movements without consent and without

         legal authority in a manner which interferes substantially with his or her liberty.
         Restraint    is "    without   consent"   if it is         by ( a) physical force,
                                                                 accomplished

         intimidation, or deception, or ( b) any means including acquiescence of the victim,
         if he or she is a child less than sixteen years old or an incompetent person and if
         the parent, guardian, or other person or institution having lawful control or
         custody of him or her has not acquiesced.

In Warfield, 103 Wn. App. at 157, we noted that the statutory definition .had four primary

components:




          1) restricting      another' s movements; (   2)   without   that   person' s consent; (   3) without

         legal authority; and ( 4) in a manner that substantially interferes with that person's
         liberty. Because the Legislature has seen fit to fold all four components into the
         definition   of " restrain,"      then all four components are equally modified by the
         adverb "    knowingly,"        which   modifies "    restrain"   in the statutory definition of
         unlawful imprisonment.


         Our Supreme Court recently addressed this issue and held that the information

charging unlawful imprisonment need include only the statutory elements of unlawful

imprisonment,       as was     done here.    The Court specifically rejected the claim that the four

components set out           in Warfield   required a more       detailed information.     State v. Johnson,


     Wn.2d ,         325 P. 3d 135, 138 ( 2014).      Accordingly, Darling' s claim fails.

B.       SAME CRIMINAL CONDUCT


         Darling argues that the sentencing court erred in finding that the felony harassment

charge was not the same criminal conduct as the unlawful imprisonment and felony court order

violation. He claims that the sentencing court erred in finding that the harassment conviction

was based on his post- arrest statements when the jury could also have found him guilty based on

his pre- arrest statements. We disagree because regardless of the basis of the conviction, the

harassment charge involved a different objective intent than the other two charges.




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44186 -1 - II



          Crimes constitute the " same criminal conduct" for sentencing purposes when they

 require the same criminal intent, are committed at the same time and place, and involve the

same victim."     Former RCW 9. 94A.589( 1)(          a) (   2002). We will not disturb a trial court' s


determination of same criminal conduct unless the sentencing court abuses its discretion or

misapplies the law. State v. Graciano, 176 Wn.2d 531, 536, 295 P. 3d 219, 222 ( 2013).


          Darling argues that because the jury verdict did not state whether he was found guilty

based on pre -arrest or post -arrest death threats, it was legally improper for the trial court to find

that the felony harassment offense did not occur at the same time and place as the unlawful

imprisonment and felony violation of a court order. He relies on State v. Kier, 164 Wn.2d 798,

811, 194 P. 3d 212 ( 2008), which held that courts must interpret ambiguous verdicts in the


defendant' s favor. He argues the sentencing court misapplied the law by failing to interpret the

ambiguous jury verdict as based on the pre- arrest death threat rather than the post- arrest death

threat.


          However, the distinction between pre -arrest and post -arrest threats is immaterial.


Although we agree with Darling that the three offenses may have occurred at the same time and

place in light of the ambiguous jury verdict, they involved different objective intents.

Harassment requires proof that the defendant knowingly threatened his victim. Unlawful

imprisonment requires proof that the defendant knowingly restrained his victim. A court order

violation requires proof that the defendant knowingly violated a court order. An intent to

threaten someone is not the same as an intent to restrain that person or an intent to violate a court

order. In addition, the harassment crime did not further the others. While the trial court did not

articulate   this basis for   finding   the   crimes separate,    the burden is   still on   Darling   to   show same
44186 -1 - II



criminal conduct. Graciano, 176 Wn.2d at 539 -40. He fails to do so, and therefore his claim

fails.


C.            INEFFECTIVE ASSISTANCE OF COUNSEL


              Darling argues that trial counsel' s concession that only two of the offenses were same

criminal conduct denied him his right to effective assistance of counsel. To prevail on an

ineffective assistance of counsel claim, the defendant must show not only that defense counsel' s

representation was deficient, but also that the deficient representation prejudiced the defendant.

State    v.   Grier, 171 Wn.2d 17, 32 -33, 246      P. 3d 1260 ( 2011). Prejudice exists if there is a


reasonable probability that except for counsel' s errors, the result of the proceeding would have

differed. Grier, 171 Wn.2d at 34.


              Because we have held that the harassment conviction did not arise from the same


criminal conduct as the other two convictions, Darling cannot show that defense counsel' s

concession resulted in prejudice.


D.            STATEMENT OF ADDITIONAL GROUNDS


              In a statement of additional grounds, Darling raises seven assertions of error. We reject

them all.


              1.   Community Custody

              Darling asserts that the trial court erred in imposing community custody on the unlawful

imprisonment conviction because the trial court found that it amounted to the same criminal


conduct as count        three ( violation   of a court order).   He argues that because the sentencing court

imposed the statutory maximum sentence on count three, his sentence effectively exceeds the

statutory maximum when combined with community custody.




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44186 -1 - II



             But a finding of same criminal conduct simply means that the defendant' s crimes are

counted as one for purposes of calculating his offender score. It does not mean he committed

only one offense. And RCW 9.94A.701( 3)( a) requires the sentencing court to impose twelve

months of community custody for any crime against a person. Unlawful imprisonment is such a

crime.       RCW 9. 94A.411( 2)(     a).   The trial court did not impose a sentence longer than the


statutory maximum and therefore did not err.
             2.     Admission of Smith Affidavit


             Darling asserts that the trial court erred in admitting Barnes' s affidavit under State v.

Smith, 97 Wn.2d 856, 861 - 63, 651 P. 2d 207 ( 1982), because the prosecution could not use it to


impeach its own witness and Barnes was not given an opportunity to confirm the allegations on

the stand. However, a Smith affidavit is admissible as substantive evidence if the State

establishes        the   four foundational   requirements under   ER 801( d)( 1)( i). See Smith, 97 Wn.2d at


861 -63 ( holding that ER 801( d)( 1)( i) permits admission of a trial witness' s prior inconsistent

statement as substantive evidence when that statement was made as a written complaint under


oath subject to penalty of perjury to investigating police officers, subject to a reliability analysis).

             Here the trial court found that the requirements for the admission of Barnes' s affidavit


were met. Accordingly, the trial court did not err in admitting the affidavit.

             3.     Admission of Prior Offenses


             Darling asserts that the trial court erred in admitting evidence of his prior harassment and
assault convictions          because those    convictions were   based   on   Newton   pleas.   1 He argues that this

was improper because a conviction by Newton plea cannot be admitted in any other action. He

 1
     State   v.   Newton, 87 Wn.2d 363, 366, 552 P. 2d 682 ( 1976).
44186 -1 - II



provides no authority for this claim and we know of none. Darling' s convictions qualified for

admissibility and the trial court did not err in so ruling.

          4.     Transcription of Jury Instructions

          Darling complains that he should have been given a transcription of the trial court' s

instructions to the jury in order to better present his claims to this court. But the record does not

show that Darling filed a motion either on appeal or in the trial court for an additional report of

proceedings, nor does Darling show that the written instructions are inadequate to present his

claims.     See State   v.   Giles, 148 Wn.2d 449, 450, 60 P. 3d 1208 ( 2003) ( indigent defendant


entitled   to   means   to properly   present   his   arguments on appeal).      Accordingly, this assertion fails.

           5.    Felony Harassment Instruction

           Darling asserts that the trial court improperly instructed the jury on the harassment count
because it included the         optional   term "   felony." He claims that this allowed the jury to

improperly consider punishment in assessing his culpability. He correctly notes that the

Washington Pattern Jury Instruction Committee' s comment indicates that the word " felony"

should be included in the instruction only if the defendant is also charged with gross

misdemeanor harassment. Comment, 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 36. 07. 02,              at   582 ( 3d   ed.   2008) ( WPIC). The comment states that


because juries are routinely instructed that they should not consider potential punishment during

their deliberations, referring to the         crime as a   felony, " to some extent is inconsistent with this

mandate."        Comment, WPIC 36. 07. 02 at 582.




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44186 -1 - II



             But Darling did not object to this instruction at trial. Absent a showing of manifest

constitutional error,       he may    not raise   this   claim on appeal.    RAP 2. 5(   a)(   3); State v. Edwards, 171


Wn. App. 379, 387, 294 P. 3d 708 ( 2012).

             6.     Felony Violation of Court Order

             Darling asserts that the trial court' s to- convict instruction for the court order violation

also used the word " felony" and therefore suffers from the same flaw as his felony harassment

instruction. But Darling did not object to this instruction at trial either, and absent a showing of

manifest constitutional error he may not raise this claim on appeal. RAP 2. 5( a)( 3).

             7.     Effective Assistance of Trial Counsel


             Darling claims multiple instances of ineffective assistance of counsel. As we noted

above, a defendant alleging the denial of his right to effective assistance of counsel must show

both that counsel' s performance was objectively unreasonable and that this failing prejudiced his

right   to   a    fair trial. Grier, 171 Wn.2d     at    32 -33.   All but one of Darling' s claims involve defense

counsel' s failure to object. Counsel's decisions regarding whether and when to object " fall

firmly   within       the category   of strategic or     tactical decisions."   State v. Johnston, 143 Wn. App. 1,

19, 177 P. 3d 1127 ( 2007).          The failure to object constitutes counsel' s incompetence justifying

reversal only in egregious circumstances on testimony central to the State' s case. Johnston, 143

Wn. App. at 19.

             First, Darling asserts that trial counsel should have objected when the State questioned

Barnes about whether she still loved Darling. But this was a reasonable inquiry allowing the jury

to assess Barnes' s credibility. The trial court would have overruled any objection, and therefore

defense counsel' s failure to object did not prejudice Darling.




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44186 -1 - II



         Second, Darling asserts that trial counsel should have objected to the prosecutor asking

Barnes leading questions about Darling' s cell phone. He argues that there was no evidence that

he had grabbed his cell phone and therefore the prosecutor' s question assumed facts not in

evidence. But Barnes testified that Darling' s cell phone was lying on a blanket, that she tried to

grab it, but he picked up the phone and put it in his pocket. The prosecutor did not improperly

lead the witness or assume facts not in evidence. The trial court would have overruled any

objection, and therefore defense counsel' s failure to object did not prejudice Darling.

         Third, Darling asserts that trial counsel should have objected to the prosecutor' s alleged

 badgering" of Barnes about whether Darling had hit her. But this line of questioning was

proper. The prosecutor simply was clarifying what Barnes meant when she said that Darling had

never hit her. The trial court would have overruled any objection, and therefore defense

counsel' s failure to object did not prejudice Darling.

         Fourth, Darling asserts that trial counsel should have objected when the prosecutor asked

Barnes if the defendant had ever expressed jealousy before that night. But this was a reasonable

question in light of Barnes' s earlier direct testimony in which she testified that Darling had

accused her of doing sexual favors for another man. The trial court would have overruled any

objection, and therefore defense counsel' s failure to object did not prejudice Darling.

          Fifth, Darling asserts that trial counsel should have objected to the prosecutor' s question

 of whether Barnes hoped to keep her relationship with Darling. But this was a reasonable

 inquiry that allowed the jury to assess Barnes' s credibility. The trial court would have overruled
 such an objection, and therefore defense counsel' s failure to object did not prejudice Darling.




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44186 -1 - II



         Sixth, Darling asserts that trial counsel should have objected when the prosecutor asked

Barnes if the redness on Darling' s face that evening could be from alcohol consumption rather

than from being punched in the face. But Barnes could testify that alcohol was a likely cause of

the redness in Darling' s face because they had been in an ongoing relationship, she had been

upset in the past with his alcohol consumption, and she testified that she was upset that evening

as well. The trial court would have overruled any objection, and therefore defense counsel' s

failure to object did not prejudice Darling.

         Seventh, Darling asserts that trial counsel should have objected when the prosecutor

asked Officer Gutierrez about whether Barnes was shaking when Darling was yelling at her. But

these questions were proper as the State had to show that Barnes was in reasonable fear that


Darling would carry out his threats to kill her. Explaining the physical effects of his taunting and .

rage on her was not improper and did not assume facts not in evidence because Officer Gutierrez


had just testified about Barnes' s physical behavior. The trial court would have overruled any

objection, and therefore defense counsel' s failure to object did not prejudice Darling.

         Eighth, Darling asserts that trial counsel should have presented evidence favorable to

him. Specifically, he claims that trial counsel should have transcribed an interview with Brad

Morrow and offered it as evidence. But this argument involves facts outside the record and


cannot be considered on appeal. See State v. McFarland, 127 Wn.2d 322, 335, 899 P. 2d 1251

 1995) ( reviewing court will not consider matters outside the record on appeal).




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44186 -1 - II



         In summary, Darling fails to demonstrate that defense counsel' s conduct denied him his

right to effective assistance of counsel. We reject his ineffective assistance of counsel claims.

         We affirm.


         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:




    447
           4_ 11
HUNT J.




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