                                                                                                              COURT O ADPEALS


                                                                                                         20100 EC 17
                                                                                                                                5C

      IN THE COURT OF APPEALS OF THE STATE OF WASHI"                                                                      SN1
                                                                                                         BY
                                                   DIVISION II                                                    DEI '     Y


STATE OF WASHINGTON,                                                              No. 43172 -6 -II


                                         Respondent,


           IM



REX LEE POPE,                                                             UNPUBLISHED OPINION


                                                  t.


           WORSWICK, C. J. —        A jury returned verdicts finding Rex Lee Pope guilty of second degree

assault and attempted theft of a motor vehicle. The jury also returned special verdicts finding the

aggravating factors that Pope committed both offenses shortly after being released from

incarceration. Pope appeals his convictions, asserting that ( 1) the trial court violated his right to

present a defense by denying his continuance motion, (2) the trial court improperly commented

on   the   evidence, (     3) the trial court' s substantial step definitional jury instruction relieved the

State of its burden to prove the essential elements of attempted theft of a motor vehicle, and (4)


defense counsel was ineffective for failing to adequately investigate his case before trial and for

failing to adequately advise him about accepting a plea offer. We affirm.

                                                          FACTS


           On August 8, 2011, Laverne Hallsted parked his Toyota pickup truck at a Port Orchard,

Washington park -
                and -
                    ride lot and rode a commuter bus to his job at the Puget Sound Naval

Shipyard in Bremerton. When Hallsted returned to the park -and -
                                                               ride lot at around 4: 25 PM, he

saw   that      a   door to his truck   was open and   that two feet   were   hanging   out of   the   open   door. As he
No. 43172 -6 -I1



approached his truck, Hallsted saw a man, later identified as Pope, attempting to smash the

truck' s   ignition lock   with a stick.   Hallsted   asked   Pope, " Sir,   can   I   help   you ?"   Report of


Proceedings ( Dec. 8, 2011)       at   99. Pope   responded, "   Yes,   you can,"       as he stood in front of


Hallsted. RP ( Dec. 8, 2011) at 99. Pope then looked down, grabbed Hallsted' s shirt, and

punched Hallsted in the face with his right hand. Hallsted responded by grabbing Pope' s shirt

and jabbing keys into his cheek. During the struggle, items from Pope' s satchel fell to the

ground. Among those items were several blister packs of medication marked with Pope' s name,

as well as a roll of duct tape, a notebook, a hat, an X - cto knife, and X -
                                                        A                  Acto knife blades. Pope

fled and Hallsted chased him for a short distance before calling 911.

           Port Orchard Police Officer Donna Main took Hallsted' s statement and summoned


medical assistance to treat his injuries. The following day Hallsted identified Pope from a

photographic montage as the man who had broken into his truck and assaulted him. Main


arrested Pope the next day. When she arrested Pope, Main saw that Pope had scratch marks and

injuries on the left side of his face. During his arrest, Pope did not appear to have any physical

disability and did not have any difficulty walking, kneeling, or getting out of the patrol car.

           On November 8, 2011, the State charged Pope by first amended information with second

degree assault and attempted theft of a motor vehicle. The State also alleged aggravating factors

that Pope committed each offense shortly after being released from incarceration and that his

multiple offenses and high offender score would result in some of his offenses going unpunished.

           Pope   was arraigned and was appointed counsel on            September 12, 2011.              On November 8,


Pope moved to continue the start of his trial. The trial court granted Pope' s continuance motion

and set    his trial to   commence on      December 6. On December 6, Pope                again moved      for   a
No. 43172 -6 -II



continuance, asserting that he was attempting to obtain medical records and to secure witnesses

to testify about his Parkinson' s disease. When the trial court asked about the relevance of Pope' s
Parkinson' s disease, defense counsel stated:


                      Your Honor, there' s an allegation in part of this case regarding an alleged
       assault        that   occurred       between —where Mr. Pope is the alleged offender on that.
       And the defense is trying to gather more information regarding his Parkinson' s
       disease to          show   that Mr. Pope      because        of   the —how far the disease has progressed

       at this point, that he would be unable to conduct himself in a manner that the state
       is alleging.

RP ( Dec. 6, 2011 AM) at 4.


       The State opposed Pope' s continuance motion, asserting that it was not basing Pope' s

second degree assault charge on allegations that Pope had severely beaten the victim but, rather,

that it was charging him under RCW 9A.36. 021( 1)( e) for assaulting the victim " with intent to

commit a        felony."     Clerk'   s   Papers ( CP)   at   1.   The State argued that it was unlikely that any

expert witness would testify that Pope could not commit assault in the manner alleged. The State

also told the trial court that it would be willing to stipulate that Pope suffered from Parkinson' s

disease.        The trial court denied Pope' s continuance motion, noting that his trial had already been

continued once for the same reason.


        That same day, Pope' s case was called for trial before a different trial court judge, and

Pope renewed his motion to continue the start of his trial. The trial court denied Pope' s


continuance motion, stating:


                      Well, that decision has been                  made.     I' m not going to overrule what' s
           already been decided this morning.                      There' s no new information provided so far
           as   the               And I' ve not heard anything specific as to how it' s going
                      medical records.

        to relate to or be relevant to the defense, in this case, especially in light of the fact
        that there appears to be an acknowledgement this afternoon that there is no mental
           defense     being    sought.
No. 43172 -6 -II



RP ( Dec. 6, 2011       PM) at     13. Before the start of trial, Pope requested that the trial court admit two


exhibits   titled, " Parkinson' s Disease at          a   Glance,"      and "   Symptoms   by Mayo    Clinic Staff." RP


 Dec. 6, 2011 PM) at 32. Defense counsel stated that the purpose of the exhibits was to " have

something for the jurors           available   to   explain   why Mr. Pope visibly         shakes   in the   courtroom."   RP


 Dec. 6, 2011       PM) at   33.    The State opposed admission of the exhibits but stated that it wasn' t


opposed to having the trial court instruct the jury about Pope' s visible symptoms of Parkinson' s

disease. Following a lengthy discussion, both parties agreed that the trial court could instruct the

jurors   as   follows, "` At Mr. Pope' s request, I would like to inform you that he suffers from


Parkinson' s disease. This is not a fact in the case. But he has requested that this be conveyed to

you so as     to   explain   his   symptoms."'       RP ( Dec. 6, 2011 PM) at 43.


          The following day, the trial court suggested modifying the agreed instruction to read,

  At Mr. Pope' s request, I would like to inform you that Mr. Pope suffers from Parkinson' s

disease. This is not a fact in the case, but he has requested that this be conveyed so as to explain

his   visible symptoms of          shaking. "'      RP ( Dec. 7; 2011) at 49. Defense counsel and the State


agreed to the modified language in the proposed instruction, and the trial court later read the

instruction to potential jurors at the start of voir dire.


           At trial, Hallsted and Main testified consistently with the facts as stated above. The trial

court provided       the   jury with   an   instruction stating, " A        substantial step is conduct which strongly

indicates     a criminal purpose and which             is   more   than   mere preparation."    Suppl. CP at 146. Pope


did not object to this instruction. The jury returned verdicts finding Pope guilty of second degree

assault and attempted theft of a motor vehicle. The jury also returned special verdicts finding the




                                                                   rd
No. 43172 -6 -II



aggravating factors that Pope committed both offenses shortly after being released from

incarceration.


         At a January 13, 2012 sentencing hearing, Pope' s defense counsel moved to withdraw

from representation, asserting that communications with Pope had broken down. The trial court

granted defense counsel' s motion to withdraw, appointed new counsel to represent Pope, and set


a new sentencing hearing date. On February 24, Pope' s new defense counsel informed the

sentencing court that he had reviewed the trial transcript and could not find a basis to file a

meritorious CrR 7. 5 motion and, therefore, he was prepared to go forward with sentencing.
                                                                                                  Farettal

         Pope then told the trial   court   that he   wanted   to   act pro se.   Following   a              inquiry,

the trial court found that. Pope had knowingly waived his right to counsel. Pope then filed a

written CrR 7. 5 motion for a new trial, which motion the trial court denied on March 2. The trial


court declined to impose an exceptional sentence and sentenced Pope within the standard range.


Pope timely appeals.

                                                  ANALYSIS


                                     I   RIGHT To PRESENT A DEFENSE


          Pope first contends that the trial court violated his constitutional right to present a defense


by denying his motion to continue the start of trial. We disagree.

A.        Standard ofReview

          A defendant in a criminal trial has a constitutional right to present a defense. State v.


Rehak, 67 Wn.      App.   157, 162, 834 P. 2d 651 ( 1992). " The right of an accused in a criminal trial


to due process is, in essence, the right to a fair opportunity to defend against the State' s

1
    Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 ( 1975).




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No. 43172 -6 -Ii



accusations."          Chambers v. Mississippi, 410 U. S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297

 1973).


          The right to offer the testimony of witnesses, and to compel their attendance, if
          necessary, is in plain terms the right to present a defense, the right to present the
          defendant' s version of the facts as well as the prosecution' s to the jury so it may
          decide       where     the truth       lies.   Just as an accused has the right to confront the
          prosecution' s witnesses for the purpose of challenging their testimony, he has the
          right    to       present   his   own      witnesses     to    establish   a   defense.   This right is   a
          fundamental element of due process of law.


Washington        v.   Texas, 388 U. S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 ( 1967). However, a


criminal defendant' s right to present a defense is not absolute; a defendant seeking to present

evidence must show that the evidence is at least minimally relevant to a fact at issue in the case.

State v. Jones, 168 Wn.2d 713, 720, 230 P. 3d 576 ( 2010).


          A trial court' s denial of a continuance motion may infringe on a defendant' s right to

compulsory process and right to present a defense " if the denial prevents the defendant from

presenting   a witness material             to   his defense."    State v. Downing, 151 Wn.2d 265, 274 -75, 87

P. 3d 1169 ( 2004). We determine whether a trial court' s denial of a continuance motion violated


a criminal defendant' s constitutional right to present a defense on a case -by -case basis,

examining "` the            circumstances present        in the   particular case. "'    Downing, 151 Wn.2d at 275 n. 7

 quoting State         v.   Eller, 84 Wn.2d 90, 96, 524 P. 2d 242 ( 1974)).               We review the trial court' s


decision to grant or deny a continuance motion for an abuse of discretion. Downing, 151 Wn.2d

at 272. And we review de novo claims of a denial of Sixth Amendment rights, including the

right to present a defense. See e. g., Jones, 168 Wn.2d at 719; State v. Iniguez, 167 Wn.2d 273,

280, 217 P. 3d 768 ( 2009).




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No. 43172 -6 -II



B.            Trial Court' s Continuance Ruling Did Not Violate Pope' s Right To Present a Defense

              Examining the particular circumstances present here, we hold that the trial court did not

violate Pope' s right to present a defense. Fatal to his claim is Pope' s failure to show any

prejudice resulting from the trial court' s denial of his continuance motion.

              E] ven where the denial of a motion for continuance is alleged to have deprived a
              criminal defendant of his or her constitutional right to compulsory process, the
              decision to deny a continuance will be reversed only on a showing that the
              accused was prejudiced by the denial and /or that the result of the trial would
              likely have been different had the continuance not been denied.

State    v.   Tatum, 74 Wn.          App.    81, 86, 871 P. 2d 1123 ( 1994) (   citing Eller, 84 Wn.2d at 95 -96).

              First, Pope has not demonstrated that the medical records and testimony he sought to

obtain for trial would have supported his contention that he could not have committed assault in

the manner alleged by the State. The medical records attached to Pope' s CrR 7. 5 motion for a

new trial merely show that Pope was diagnosed with Parkinson' s disease, exhibited "jerky" and

 stiff' movements, had poor coordination and balance, and had an " uncontrollable tremor in the

right and       to   a   lesser   extent   left hand,   with some spread   into the   right   leg."   Suppl. CP at 36, 45.


Nothing in the medical records showed that Pope could not commit an assault during his

attempted theft of a motor vehicle, and he has not identified any expert witness that would so

testify. Additionally, the trial court had already granted Pope a nearly one -month continuance to

obtain the medical records he had sought. And Pope did not explain why he had been unable to

obtain the records during that time when he again moved for a continuance on the first day of

trial.



              Finally, the outcome of Pope' s trial would not likely have differed had the trial court

granted him a continuance to allow him to present medical records and testimony regarding his



                                                                  7
No. 43172 -6 -II



Parkinson' s disease in light of the overwhelming evidence of his guilt. Hallsted identified Pope

as   his   assailant   in   a photographic montage and at                  trial.   Several blister packs of medication


labeled with Pope' s name fell from the assailant' s satchel and were recovered by Main at the

scene. Hallsted and Pope both had injuries consistent with Hallsted' s account of the assault.


And Main did not see that Pope had any apparent physical disability when she arrested him. In

light of these circumstances, we hold that the trial court did not violate Pope' s constitutional


right to present a defense by denying his second continuance motion.


                                                          II. JUDICIAL COMMENT


            Next, Pope contends that the trial court improperly commented on the evidence in

violation of article IV, section 16 of the Washington Constitution. Specifically, Pope asserts that

the trial court improperly commented on the evidence when it orally instructed prospective

jurors, pursuant to the parties' agreement, that " At Mr. Pope' s request, I would like to inform

you that Mr. Pope suffers from Parkinson' s disease. This is not a fact in the case, but he has

requested         that this be   conveyed          to   you so as   to   explain    his   visible symptoms of   shaking."   RP


    Dec. 7, 2011) at 52. We disagree.


                Article IV, section 16 of the Washington Constitution prohibits a trial court from


conveying to the jury its personal attitude toward the merits of the case and prohibits the trial

court from " instructing a jury that `matters of fact have been established as a matter of law. "'

State      v.   Levy, 156   Wn.2d 709, 721, 132 P. 3d 1076 ( 2006) ( quoting                      State v. Becker, 132 Wn.2d


2
    Article IV,      section     16   of   the Washington Constitution              provides, "   Judges shall not charge juries
with respect         to matters of         fact,   nor comment      thereon, but      shall   declare the law."
No. 43172 -6 -II



54, 64, 935 P. 2d 1321 ( 1997)).           A jury instruction that does no more than accurately state the law

pertaining to an issue does not constitute an impermissible comment on the evidence. State v.

Woods, 143 Wn.2d 561, 591, 23 P. 3d 1046 ( 2001).


         Here, Pope argues that the trial court' s instruction impermissibly commented on the

evidence by stating that his Parkinson' s disease was " not a fact in the case" because it prohibited

the jurors from considering his Parkinson' s disease during its deliberations. RP ( Dec. 7, 2011) at

52. But the instruction' s directive that Pope' s Parkinson' s disease was " not a fact in the case"

was an accurate statement of the law because there was no evidence presented at trial regarding

his Parkinson' s disease. Rather, the trial court gave the instruction.because Pope had requested

that the jury be informed of his disease to explain why he was visibly shaking in the courtroom.

Thus, consistent with the jury instructions as a whole, the trial court properly instructed the jury

that it should not consider Pope' s Parkinson' s disease when determining whether the State
                                                                                                            3
proved    beyond     a reasonable    doubt the    essential elements of           the   charged offenses.




          Moreover, even if the trial court erred in giving the challenged instruction, Pope invited

such error by agreeing to the instruction' s language. The invited error doctrine prohibits a party

from setting up an error at trial and then complaining of the error on appeal. State v. Wakefield,

130 Wn.2d 464, 475, 925 P. 2d 183 ( 1996). Pope asserts that the invited error doctrine does not


apply here because, although he had agreed that the trial court should give the instruction, he did
not propose      the instruction    or    its language. But, "[ u] nder the doctrine of invited error, even



3
    The trial   court' s written   jury   instructions   stated   in   part, "   The evidence is the testimony and the
exhibits. The law is contained in my instructions to you. You must disregard any remark,
statement, or argument that is not supported by the evidence or the law in my instructions."
Suppl. CP at 133.




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No. 43172 -6 -II



where constitutional rights are involved, we are precluded from reviewing jury instructions when

the defendant has        proposed an   instruction   or agreed          to its wording."     State v. Winings, 126 Wn.


App.   75, 89, 107 P. 3d 141 ( 2005) (      emphasis added).              Here, Pope did more than merely acquiesce

to the trial court giving the challenged instruction; he requested that the jury be informed about

his Parkinson' s disease and twice agreed to the language of the trial court' s proposed instruction.

Because Pope expressly agreed to the language of the instruction, the invited error doctrine

prohibits him from challenging the instruction on appeal.

                                  III. SUBSTANTIAL STEP JURY INSTRUCTION


         Next, Pope asserts that the trial court' s substantial step jury instruction relieved the State

of its burden to prove beyond a reasonable doubt the elements of attempted theft of a motor


vehicle. As an initial matter, we must determine if this issue is properly before us. Generally,

we will not address issues raised for the first time on appeal. State v. Powell, 166 Wn.2d 73, 82,

206 P. 3d 321 ( 2009).       And Pope did not object to the substantial step jury instruction at trial. He

asserts, however, that his claimed error is of constitutional magnitude and, thus, we may review
                                                                    4
it for the first time     on appeal under   RAP 2. 5(   a)(   3).       We disagree.


          Although a trial court' s failure to instruct the jury on every element of an offense is an

error of constitutional magnitude under         RAP 2. 5(       a)(     3), "`   any error in further defining terms used

in the   elements   is   not of constitutional magnitude. "'             State v. Gordon, 172 Wn.2d 671, 677, 260




4 RAP 2. 5( a) provides in relevant part:
          Errors Raised for First Time           on     Review.             The appellate court may refuse to
          review    any    claim of error which was not raised                    in the trial   court.   However, a

          party may raise the following claimed errors for the first time in the appellate
          court:... (     3) manifest error affecting a constitutional right.




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No. 43172 -6 -II


P. 3d 884 ( 2011) ( quoting State          v.   Stearns, 119 Wn.2d 247, 250, 830 P. 2d 355 ( 1992)).              Here,


Pope does not contend that the trial court' s attempted theft of a motor vehicle `to convict' jury
                                                                                             5
instruction failed to inform the jury             on   every   element of   the   offense.       Instead, he only takes

issue with the trial court' s substantial step definitional instruction. But this is not an alleged

error of constitutional magnitude that we may address for the first time on appeal. Gordon, 172

Wn.2d at 677. Accordingly, we hold that by failing to object to the substantial step instruction,

Pope has failed to preserve his argument that the trial court erred in giving the instruction.

          Moreover, even if this issue were properly before us, Pope' s claim lacks merit. Here the

trial instructed the       jury, " A substantial step is conduct which strongly indicates a criminal

purpose and which           is   more   than   mere preparation."     Suppl. CP at 146. This instruction deviates


from Washington Pattern Jury Instruction: Criminal 100. 05 only insofar as it replaces " that" with

 which."        11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL

100. 05   at    390 ( 3d   ed.   2008) ( WPIC).




5 That instruction provided:
        To convict the defendant of the crime of Attempted Theft of a Motor Vehicle as
          charged in count II, each of the following elements of the crime must be proved
          beyond a reasonable doubt —
           1)        That on or about August 8th, 2011, the defendant did an act which was a
                     substantial step toward the commission of theft of a motor vehicle;
           2)        That the act was done with intent to commit theft of a motor vehicle; and
           3)        That the acts occurred in the State of Washington.
                If you find from the evidence that each of these elements has been proved
          beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
                 On the other hand, if, after weighing all of the evidence, you have a
          reasonable doubt as to any one of these elements, then it will be your duty to
          return a verdict of not guilty.
 Suppl. CP at 147.




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No. 43172 -6 -II



         Pope nonetheless argues that the trial court erred by using WPIC 100. 05 because the

instruction differs from the instruction adopted in State v. Workman, 90 Wn.2d 443, 584 P. 2d

382 ( 1978).     Specifically, Pope claims that the substantial step jury instruction' s use of the word

 indicate" rather than " corroborate" relieved the State of its burden of providing independent and

corroborating proof of Pope' s intent. Br. of Appellant at 20. He also claims that the

instruction' s reference to " a criminal purpose" rather than " the criminal purpose" relieved the


State   of   its burden to   prove   Pope'   s criminal   intent. Br.   of   Appellant   at   21.   But we have recently

rejected these same exact claims in State v. Davis, 174 Wn. App. 623, 636 -37, 300 P. 3d 465,

review   denied, 178 Wn.2d 1012 ( 2013).             Accordingly, even if Pope had preserved these issues

for appeal by objecting to the substantial step definitional jury instruction at trial, his claims lack

merit in light of our decision in Davis.

                                     IV. INEFFECTIVE ASSISTANCE OF COUNSEL


         Last, Pope contends that his defense counsel was ineffective for failing to adequately

investigate his case and for failing to advise him about accepting a plea offer. Again, we

disagree.


         We review ineffective assistance of counsel claims de novo. State v. Thach, 126 Wn.


App.    297, 319, 106 P. 3d 782 ( 2005). To establish ineffective assistance of counsel, Pope must


show both that ( 1) his counsel' s performance was deficient in that it fell below an objective

standard of reasonableness based on all the circumstances and ( 2) the deficient performance


resulted in prejudice in that there was a reasonable possibility that the outcome of the proceeding

would have differed but for counsel' s deficient performance. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v.. Reichenbach, 153 Wn.2d 126, 130,




                                                              12
No. 43172 -6 -II



101 P. 3d 80 ( 2004).   We strongly presume that counsel is effective. Reichenbach, 153 Wn.2d at

130. To overcome this presumption, the defendant bears the burden of "establishing the absence

of   any ` conceivable legitimate tactic explaining   counsel' s performance. "'   State v. Grier, 171


Wn.2d 17, 42, 246 P. 3d 1260 ( 2011) (   quoting Reichenbach, 153 Wn.2d at 130).

A.       Failure To Investigate


         Pope first asserts that his counsel was ineffective for failing to adequately investigate his

case before trial. Specifically, Pope argues that his defense counsel failed to review his medical

records before trial, failed to consult with his treating physicians, failed to consult with experts to

determine whether Pope could have punched the victim in the manner alleged, and failed to

secure witnesses to testify on Pope' s behalf. In support of his claim that defense counsel failed

to review his medical records before trial, Pope cites to counsel' s December 14, 2011 motion for

funds for copies of Pope' s health records, which was filed after the guilt phase of Pope' s trial had

ended on December 8. Although Pope' s defense counsel did not file for reimbursement until

after trial, a November 30, 2011 invoice attached to the motion clearly shows that defense

counsel requested Pope' s medical records prior to the start of trial on December 6, 2011.

Accordingly, Pope fails to show that defense counsel rendered deficient performance by failing

to review his medical records before trial.


          With regard to his claims that his defense counsel was ineffective for failing to consult

with his treating physicians or with experts that could testify that he was unable to commit the

assault because of his Parkinson' s disease, Pope fails to demonstrate that the outcome of his trial

would have differed had his counsel consulted with his physicians or potential expert witnesses.

On this record, Pope cannot show that his treating physicians or any potential expert witness



                                                      13
No. 43172 -6 -I1



Would have provided admissible evidence favorable to his defense. Thus, his claim fails the

prejudice prong of the ineffective assistance of counsel test.

        And, with regard to his claim that defense counsel failed to secure witnesses to testify on

his behalf, Pope similarly fails to show that any potential witness would have provided

admissible evidence favorable to his defense. Accordingly, Pope fails to demonstrate on this

record that his defense counsel was ineffective for failing to adequately investigate his case.

B.      Failure To Advise Pope Regarding Plea Deal'

        Finally, Pope argues that his defense counsel was ineffective for failing to advise him

about whether to accept a plea offer. This argument is meritless because there is no evidence in

the record that the State had offered a plea deal to Pope. Accordingly, we hold that Pope cannot

show that his defense counsel rendered ineffective assistance and we affirm his convictions.

        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.




                                                                     Worswick, C. J.




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