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   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                              DIVISION II

STATE OF WASHINGTON,                                                      No. 42509 -2 -II


                               Respondent


      V.

                                                                         Consolidated with:
MAUA SIAMUPENI MUASAU,



STATE OF WASHINGTON,                                                      No. 42522 -0 -II


                                   Respondent,


      V.

                                                                         Consolidated with:
DAMOS L. HANDSOM,




STATE OF WASHINGTON,                                                      No. 42708 -7 -II


                                   Respondent,


      V.



MICHAEL ANTONIO SMITH,                                               UNPUBLISHED OPINION


                                   Al



      JOHANSON, A.C. J. —          A jury found Maua Siamupeni Muasau, Damos L. Handsom, and

Michael Antonio Smith guilty         of   first degree   burglary. It also found Muasau guilty of felony

harassment   and   fourth degree   assault.   In this consolidated   appeal, we   hold that ( 1) the trial   court
No. 42509- 2- II/No. 42522- 0- 11/
No. 42708 -7 -II



did   not violate   Smith'   s   CrR 3. 3 time for trial      rights, (   2) sufficient evidence supports Handsom' s


and Muasau' s first degree burglary convictions and Muasau' s felony harassment and fourth

degree assault convictions, and ( 3) Smith and Muasau' s ineffective assistance of counsel claims


fail.   Smith     also   filed   a statement of additional grounds (              SAG),    claiming additional CrR 3. 3

violations,     contesting       witness     credibility,    and      claiming    jury    instruction   errors,   jury trial

violations, and ineffective assistance. Because we find no reversible error, we affirm.

                                                            FACTS


          Bill Edmiston; his girlfriend, Lois Hopkins; and Hopkins' s cousin, Rusty Parrott lived

together in Parrott' s trailer. Hopkins' s son, Cody Davis, also temporarily lived there until Parrott

ordered him to move out. When Davis moved, he left no personal belongings in Parrott' s trailer.


          In August 2010, shortly after Davis moved out of Parrott' s trailer, Davis, Handsom,

Muasau,     and   Smith     returned and started      banging       on    the trailer   doors. Davis said he wanted to


collect   his things, though he had nothing in the home. Edmiston and Parrott refused to allow the


men     inside; but the     men    kicked in the doors to           gain    entry.   Handsom and Smith wore black


masks covering their faces, and Handsom wore a military -style ballistic flak vest; Handsom also

carried an       47
              AK -        assault rifle while    Smith      carried   a . 380   pistol.   The men believed that Davis' s


father had hidden gold bars for Davis in the trailer.


          When Parrott attempted to phone 911, Muasau took the phone and smashed it against the

wall.     The men then ordered Edmiston and Parrott onto their hands and knees at gunpoint, and


Muasau told the          other men   to "[   s] moke ` em."     3 Verbatim Report of Proceedings ( VRP) at 225.


Davis, however, intervened and said not to kill his cousin. Then, Muasau and Davis demolished




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Davis'   s    former bedroom but found nothing.               Before leaving, Muasau hit Parrott in the right

cheek with his fist. Edmiston was also hit twice with something metal that Parrott believed was

the butt of Smith' s pistol.


             Minutes after the intruders left Parrott' s trailer, Lakewood police contacted them in their

vehicle.       Smith was carrying a set of brass knuckles, and officers found the AK - 7 assault rifle,
                                                                                     4

the . 380 pistol, and ammunition.


             The State charged Handsom, Muasau, and Smith with numerous crimes relating to these

events and       the State tried them in      a consolidated       trial.'   On September 16, 2010, the trial court


granted       Smith' s defense    counsel' s continuance motion,             noting, " Defense counsel has been on a


    planned vacation[,]
pre -                         this is   a   3rd   strike, several co-   defendant     case &   counsel needs more time


to           negotiate/ &
     prepare /                   investigate."      Clerk' s Papers ( CP)      at   267. The trial court also indicated


that it granted the continuance motion upon the parties' agreement pursuant to CrR 3. 3( f)(1).

But Smith' s counsel told the trial court that Smith refused to sign the continuance order.


             A jury found Handsom, Smith, and Muasau guilty of first degree burglary with a deadly

weapon enhancement,because at least one of them was armed during the burglary. The jury also
                                                                                                   2
found Muasau guilty          of    felony    harassment     and    fourth degree        assault.       The trial court then


sentenced each of the defendants, and the trial court found that Smith fell within Washington' s




     Davis pleaded guilty.

2 The jury acquitted Smith of fourth degree assault.


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                       2
No. 42708 -7 -II



persistent offender statute and sentenced him to life in prison without the possibility of parole.

Handsom, Smith, and Muasau now each raise claims on appeal.


                                                         ANALYSIS


                                                I. CRR 3. 3 TIME FOR TRIAL

                                                                              34

          Smith    argues      that the trial   court violated   his CrR 3.        time for trial right when it entered


its September 16, 2010 order continuing his trial because Smith had not signed the continuance

order. We disagree because the court granted the continuance in the interest of justice.

                                      A. Standard of Review and Rules of Law


          The decision to grant or deny a continuance motion rests with the sound discretion of the

trial   court.   State    v.   011ivier, No. 86633 -3, slip. op.      at   5 ( Wash. Oct. 31, 2013).      A trial court


abuses its discretion if its decision is based on untenable grounds or is made for untenable

reasons.     State   v.   Andrews, 66 Wn.         App.    804, 810, 832 P. 2d 1373 ( 1992), review denied, 120


Wn.2d 1022 ( 1993).            It is not a manifest abuse of discretion for a court to grant a continuance to


allow defense counsel more time to prepare for trial, even over defendant' s objection, to ensure

effective representation and a            fair trial. See State v. Campbell, 103 Wn.2d 1, 15, 691 P. 2d 929


    1984), cent. denied, 471 U. S. 1094 ( 1985).


          An in-custody defendant               must   be tried within 60 days       after   the " commencement date,"



typically    the   arraignment       date.   CrR 3. 3( b)( 1).   Periods of time excluded from this 60 -day limit

include those required by the administration of justice so long as the continuance will not



3 RCW 9. 94A.570.
4
    CrR 3. 3 time for trial rights may be distinguished from the constitutional speedy trial right.


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No. 42708 -7 -II



prejudice   the defendant.          CrR 3. 3(     e)(   3), (    f)().
                                                                   2          Under CrR 3. 3( f)(1),        trial courts may grant

continuances "[      u] pon written agreement of the parties, which must be signed by the defendant."

                                                                B. Analysis


         Here, 38 days into Smith' s 60 -day trial period, Smith' s counsel sought a continuance

because    she needed additional            time to investigate               and   to   prepare   for trial.   Smith opposed the


continuance and refused to sign the order continuing trial.

         The trial    court granted     the      continuance request              because "[ d] efense counsel has been on a


    planned vacation[,]
pre -                         this is   a   3rd    strike, several co-            defendant   case &    counsel needs more time



to           negotiate/ &
     prepare /                  investigate."                   CP   at    267.      The   order    also    indicates that ( 1)   the



continuance was based on the parties' agreement but (2) that one party refused to sign and voiced

an objection.      This   inconsistency          appears        to be     a scrivener' s error or clerical mistake.      5 Had the

trial court intended to enter the order based on the parties' written agreement, it would have

needed    Smith'     s signature.    CrR 3. 3( f)(1).            And here, the trial court knew that Smith refused to


sign.



          Based on the trial court' s articulated rationale, we conclude that it intended to grant the

continuance     to   promote   the   administration of justice under                                  2).
                                                                                          CrR 3. 3( f)(      Accordingly, the trial

court did not violate Smith' s time for trial right because it granted the continuance in the




 5 A clerical mistake is one that, when amended, would correctly convey the intention of the court
 based   on other evidence.         State   v.   Priest, 100 Wn.              App.   451, 456, 997 P. 2d 452 ( 2000).        A court

 may    correct a clerical mistake          or    scrivener' s error at             any time.      State v. Davis, 160 Wn. App.
 471, 478, 248 P. 3d 121 ( 2011).




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No. 42708 -7 -11




administration of justice and its notation that the continuance was by agreement of the parties

was merely a scrivener' s error.

                                        11. SUFFICIENCY OF EVIDENCE


        Next, Handsom and Muasau argue that the State offered insufficient evidence to prove


first degree burglary because it failed to show that they intended to commit a crime in addition to

unlawful   entry.   We conclude that the State presented sufficient evidence to prove that they


committed first degree burglary based on their forced entry into the trailer, the ski masks and flak

vest, the presence and use of weapons, threats, and the crimes against persons and property


committed therein.


        We review insufficient evidence claims for whether, when viewing the evidence in the

light most favorable to the jury' s verdict, any rational trier of fact could have found the essential

elements of the charged crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201,

829 P. 2d 1068 ( 1992).         Sufficiency challenges admit the truth of the State' s evidence and all

reasonable inferences drawn from it. Salinas, 119 Wn.2d at 201.

        The trier   of   fact   makes   credibility determinations,    which we will not review.    State v.


 Thomas, 150 Wn.2d 821, 874, 83 P. 3d 970 ( 2004).            We also defer to the trier of fact on issues of


 conflicting   testimony   and   the   persuasiveness   of evidence.   State v. Walton, 64 Wn. App. 410,

 415 -16, 824 P. 2d 533, review denied, 119 Wn.2d 1011 ( 1992).

                                           A. First Degree Burglary

         One commits first degree burglary if,

         with intent to commit a crime against a person or property therein, he or she
         enters or remains unlawfully in a building and if, in entering or while in the


                                                         ON
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No. 42708 -7 -11



          building or in immediate flight therefrom, the actor or another participant in the
          crime (a) is armed with a deadly weapon, or (b) assaults any person.

RCW 9A. 52. 020( 1).         The intent to commit a specific named crime inside the burglarized


building    is    not an " element"   of   burglary. State v. Bergeron, 105 Wn.2d 1, 4, 711 P. 2d 1000

 1985).    The intent required to prove burglary is simply the intent to commit any crime against a

person or        property inside the burglarized     premises.     Bergeron, 105 Wn.2d       at   4.   The jury may

determine that a defendant intended to commit a crime against a person or property by making

inferences "      from the facts and circumstances surrounding the commission of the act and from

conduct which        plainly indicates   such   intent   as a matter of   logical probability." State v. Kilponen,


47 Wn..App. 912, 919, 737 P. 2d 1024, review denied, 109 Wn.2d 1019 ( 1987).

           The State need not prove that the principal and accomplice share the same mental state.


State v. Bockman, 37 Wn. App. 474, 491, 682 P. 2d 925, review denied, 102 Wn.2d 1002 ( 1984).

As long as the jury is unanimous that the defendant was a participant, it is not necessary that the

jury be unanimous that the defendant was a principal or an accomplice where there is evidence of
both   manners       of participation.     See State v. Carothers, 84 Wn.2d 256, 261 -62, 525 P. 2d 731

  1974),   overruled on other grounds by State v. Harris, 102 Wn.2d 148, 685 P. 2d 584 ( 1984).

           Here, the trial court instructed the jury:

            1)    That on or about the 8th day of August, 2010, the defendant or an accomplice
           entered or remained unlawfully in a building;
            2)     That the entering or remaining was with intent to commit a crime against a
           person or property therein;
            3)     That in so entering or while in the building or in immediate flight from the
           building the defendant or an accomplice in the crime charged was armed with a
           deadly weapon; and
            4)    That any of these acts occurred in the State of Washington.




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CP at 51, 185.


             Handsom and Muasau contend, specifically, that the State failed to prove that they

intended to commit any other crime in addition to unlawfully entering Parrott' s trailer. They cite

State   v.   Sandoval, 123 Wn.          App.     1, 94 P. 3d 323 ( 2004), to          support     their claim.    In Sandoval, an


intoxicated Sandoval kicked in the front door of a stranger' s home in the middle of the night,

went    inside,   and shoved          the   occupant.    123 Wn.        App.   at     3.   A jury found Sandoval guilty of

burglary, but Division Three of this court reversed because the State failed to show that Sandoval
entered      the home    intending      to   commit another crime.             Sandoval, 123 Wn.              App.   at   5.   Division
                                                    i




Three reasoned that Sandoval loudly kicked open the door and shoved the stranger only when the

stranger      confronted       him.     Sandoval, 123 Wn.          App.    at    5.        And, Sandoval did not know the


homeowner, and he was surprised to see anybody home. Sandoval, 123 Wn. App. at 5.

             The facts here differ substantially. Unlike the drunken Sandoval, who was not expecting

to find anyone inside the home he unlawfully entered, here at least one of the accomplices knew

who lived in 'Parrott' s trailer and that someone was home; and here, Handsom arrived armed with

an   assault     rifle   and                 a   military -style ballistic flak            vest   and   ski   mask.       And unlike
                               wearing


Sandoval, who drunkenly stumbled into the home and shoved the home' s resident only after the

resident confronted him, here Handsom, Muasau, and the others confronted Edmiston and Parrott

inside the trailer       and   forced Edmiston          and   Parrott   onto   their hands        and   knees   at gunpoint.         Then


Muasau threatened          and assaulted         them before Davis       and    Muasau destroyed Parrott'             s   trailer.
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          Muasau also cites State v. Woods, which involved a mother' s estranged son, who was


only   permitted   to   enter   the   mother' s apartment when she was                home.        63 Wn. App. 588, 589, 821

P. 2d 1235 ( 1991).      One day the mother was home sick from work, and the son, who believed that

his mother was at work, broke into the mother' s house with another man to recover the son' s

jacket.    Woods, 63 Wn.         App.      at   589 -90.      As the door opened, the mother yelled at them before


the men fled     without   taking      the   jacket.    Woods,' 63 Wn. App. at 590. A jury convicted the son of

burglary, but Division One reversed, reasoning that the men lacked intent to commit another

crime after   entering the home unlawfully.                   Woods, 63 Wn. App. at 591.

          While both cases involved individuals breaking into someone else' s home with the help

of others   to   retrieve personal         property ( or Davis'      s"   gold "),   the   similarities end   there.   In Woods,


the men did not know the mother was home until they entered and fled upon learning someone

was home; here, Davis spoke with Edmiston through the door before breaking in and the men

entered the trailer with guns and military -
                                           style equipment, before confronting its occupants.

Specifically, Muasau confronted Parrott, pulled the telephone from his hands, and smashed it to
pieces    before   directing his      associates      to "[   s] moke ` em."    3 VRP        at   225.   Finally, unlike the men

in Woods who immediately left the scene without saying anything, Muasau stayed to demolish

the trailer and strike Parrott before leaving. Thus, Muasau' s reliance on Woods is misplaced.

          Viewing the evidence here in a light most favorable to the State, any rational juror could

have found that Handsom and Muasau or an accomplice intended to commit a crime after


unlawfully entering Parrott'           s   trailer.    Therefore, we affirm Handsom and Muasau' s first degree


burglary convictions.




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                                                  B. Felony Harassment

        Muasau next argues that the State failed to prove felony harassment because it did not

show   that he     knowingly      threatened        a   future harm          against     Parrott.    The jury heard sufficient

evidence to convict Muasau.


        A person is guilty of harassment if, without lawful authority, he knowingly threatens to

cause bodily injury immediately or in the future to the person threatened; and, the person by
words or conduct places the person threatened in reasonable fear that the threat will be carried

out.   RCW 9A.46. 020( 1)(        a)(   i), ( 1)( b).        In order to convict an individual of felony harassment

based upon a threat to kill, the State must prove that the person threatened was placed in

reasonable    fear that the threat to kill         would        be   carried out as an element of           the   offense.    State v.


C.G., 150 Wn.2d 604, 612, 80 P. 3d 594 ( 2003).


                                                        1.    Knowing threat

        First, Muasau contends that the State did not prove that he knowingly threatened Parrott.

To knowingly threaten another, a defendant must subjectively know that he is communicating a

threat, and know that " the communication he or she imparts directly or indirectly is a threat of

intent to   cause    bodily injury      to the    person        threatened     or   to   another person."         State v. J.
                                                                                                                            M., 144


Wn. 2d 472, 481, 28 P. M. 720. (2001).                   Here, after smashing Parrott' s phone and forcing him to

his hands     and   knees, Muasau          called out, "        Smoke `.em." 3 VRP             at   225.   Edmiston and Parrott


interpreted "[     s] moke ` em"   as a     threat to kill,          and   Parrott began praying for his life.             Davis also


interpreted "[     s] moke ` em    as a    threat to kill        because he intervened, "[ N] o,           you can'   t   kill him." 3


VRP    at   225.   Viewing this evidence in the light most favorable to the State, any rational trier of




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No. 42708 -7 -II



fact could reasonably conclude that Muasau subjectively knew that, in ordering armed men to

  s] moke ` em,"    he communicated a threat of intent to cause Parrott bodily injury.

                                               2. Immediate or future harm


           Second, Muasau argues that the State only proved that he communicated a threat of

immediate harm,          not   future harm,        as   was   required.    Muasau' s charging information and to-

convict    instruction both          stated   that that the threat was to        kill Parrott "   immediately or in the

future."     CP   at    2, 59.       The instruction         defining   threat, however,      stated, "   Threat means to


communicate,       directly     or   indirectly,   the intent to      cause   bodily injury   in the future."   CP at 60.


Muasau asserts, then, that the law of the case limited the State by requiring proof of a threat of

future harm and not one of immediate harm.

           Muasau      cites   State   v.   Willis, 153 Wn.2d 366, 103 P. 3d 1213 ( 2005); State v. Hickman,


 135 Wn.2d 97, 954 P. 2d 900 ( 1998);               and State v. Nam, 136 Wn. App. 698, 150 P. 3d 617 ( 2007).

Because none of these cases, however, stands for the proposition that a discrepancy between to-

convict instructions and definitional instructions are resolved in favor of the definitional

instruction, we discuss them no further.


           Because the unchallenged to- convict instruction for felony harassment correctly aligned

with our statute and Muasau' s charging information, the trial court properly informed the jury of

 the necessary elements to convict Muasau for harassment. A definitional instruction for " threat"

 merely defines a threat. If that definition is inserted into the to- convict instruction used here, the
 to- convict instruction still advises the jury that evidence of a threat of immediate or future harm

 would     satisfy the necessary            elements    of   harassment.      Viewing the evidence in the light most




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No. 42708 -7 -II




favorable to the State, any rational trier of fact could reasonably conclude that Muasau' s order to

  s] moke ` em,"        conveyed a      threat of immediate      or    future   bodily injury. Accordingly, we affirm

Muasau' s felony harassment conviction.

                                                 C. Fourth Degree Assault


            Next, Muasau claims that the State failed to prove fourth degree assault because it did not

show    that he      committed an       intentional,     offensive    touching. Again, sufficient evidence supports

Muasau' s fourth degree assault conviction.

            Assault is    a willful act.    State   v.   Davis, 119 Wn.2d 657, 663, 835 P. 2d 1039 ( 1992).        The


intent required to prove an assault is " merely the intent to make physical contact with the victim,

not   the   intent that the     contact   be   a malicious or criminal act."        State v. Jarvis, 160 Wn. App. 111,

119, 246 P. 3d 1280,          review    denied, 171 Wn.2d 1029 ( 2011).             Fourth degree assault is an assault


with    little    or no   bodily   harm,   committed without a          deadly    weapon.   State v. Hahn, 174 Wn.2d


126, 129, 271 P. 3d 892 ( 2012).


            Here, the trial court instructed the jury of the following elements to convict Muasau of

fourth degree assault:


             1)    That on or about the 8th day of August, 2010, the defendant or an accomplice
            assaulted Rusty Parrott; and
             2)    That this act occurred in the State of Washington.


 CP    at   63.     The trial   court     defined   assault   as "   an intentional touching or striking of another

person, that is harmful or offensive regardless of whether any physical injury is done to the

 person."         CP at 65.




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No. 42708 -7 -II



          The State presented considerable evidence from which the jury could have reasonably

inferred Muasau'        s   intent to   assault   Parrott. Here, Edmiston testified that Muasau hit Parrott on


the    side of   the   head. Parrott also testified that Muasau hit him on his right cheek with his fist.


Next, taking this evidence in a light most favorable to the State, the jury could reasonably infer

that   hitting    someone        in the face   would    be harmful      or   offensive.     And, given the context of


Muasau' s activities in the trailer, the jury could reasonably infer from Muasau' s apparent anger

and    willingness      to be     physical   with   Parrott that he intended to           strike    Parrott.   For example,


Muasau had physically taken the telephone from Parrott                        and smashed          it. Muasau also forced


Edmiston         and   Parrott   onto   the floor before     demolishing      the trailer'    s   bedroom.     Viewing this

evidence in a light most favorable to the State, the jury could reasonably infer that Muasau

intended to        strike   Parrott in the face,       an   offensive   or   harmful   act.        Accordingly, we affirm

Muasau' s fourth degree assault conviction.

                                        III. INEFFECTIVE ASSISTANCE OF COUNSEL


           Muasau next claims that his defense counsel provided ineffective assistance when he

failed to argue that Muasau' s felony harassment and first degree burglary convictions amounted

to     same   criminal      conduct     for sentencing      purposes.    Muasau does not demonstrate deficient

performance or prejudice, so he therefore cannot prevail.




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No. 42708 -7 -II



                                   A. Standard of Review and Rules of Law


         To demonstrate ineffective assistance of counsel, a defendant must show that his lawyer' s

representation was       deficient   and        the deficient     performance prejudiced         the   defendant. Strickland


v.   Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).                            Representation is


deficient if it falls below an objective standard of reasonableness based on consideration of all

the   circumstances.       State     v.    McFarland, 127 Wn.2d 322, 334 -35,                      899 P. 2d   1251 ( 1995).


Prejudice occurs when but for counsel' s deficient performance, the proceeding' s result would

have been different. McFarland, 127 Wn.2d                         at   335.    If a party fails to satisfy either prong, we

need not consider        both   prongs.         State v. Foster, 140 Wn. App. 266, 273, 166 P. 3d 726, review

denied, 162 Wn.2d 1007 ( 2007).


          A sentencing court calculates the offender score by adding current offenses and prior

convictions.       RCW 9. 94A.589( 1)(            a).   The offender score for each current offense includes all

other   current     offenses    unless      the trial     court    finds " that some or all of the current offenses


encompass     the   same criminal conduct."                   RCW 9. 94A. 589( 1)(      a).   Where the court makes such a


           those                                                         one    crime   for sentencing     purposes.   RCW
finding,             current    offenses         are    counted     as




9. 94A. 589( 1)(   a).   Offenses constitute the same criminal conduct if they are ( 1) committed with

the   same criminal      intent, ( 2) committed at the same time and place, and ( 3) involve the same


victim.    RCW 9. 94A. 589( 1)(           a);   State    v.   Vike, 125 Wn. 2d 407, 410, 885 P. 2d 824 ( 1994).           In


 determining whether multiple crimes constitute the same criminal conduct, courts consider how

 intimately related the crimes are, whether between the crimes charged there was any substantial

 change in the nature of the criminal objective, and whether one crime furthered the other. State




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No. 42708 -7 -II



v.   Burns, 114 Wn.2d 314, 318, 788 P. 2d 531 ( 1990).                      And crimes involving multiple victims

must be treated separately. State v. Dunaway, 109 Wn.2d 207, 215, 743 P. 2d 1237, 749 P. 2d 160

 1987).


          And,   we    have   an antimerger statute         for   burglary, " Every person who, in the commission

of a   burglary      shall   commit    any   other    crime,      may be    punished   therefor[ e]   as well as for the


burglary,      and   may be    prosecuted     for    each   crime      separately."   RCW 9A. 52. 050.      This statute


gives trial courts discretion to punish burglary, even if the burglary and another crime encompass

the same criminal conduct. State v. Lessley, 118 Wn.2d 773, 781, 827 P. 2d 996 ( 1992).

                                                        B. Analysis


          First, Muasau       cannot   demonstrate deficient           performance.    Because the burglary involved

two victims in the trailer, Edmiston and Parrott, and the felony harassment conviction involved

just one victim, Parrott, the crimes involved different victims and thus, would not constitute

same criminal conduct.          See RCW 9. 94A.589( 1)(            a); Dunaway, 109 Wn.2d at 215.

          Second, because of the antimerger statute, even if Muasau' s first degree burglary, felony

harassment, or fourth degree assault convictions encompassed same criminal conduct, the trial

court   had the legal authority to           punish    Muasau separately         on each   offense.    See Lessley, 118

Wn.2d     at    781.    Muasau cannot now show that the trial court would not have exercised its

discretion to apply the        antimerger statute.          Unable to show deficient performance, Muasau does

not demonstrate ineffective assistance of counsel.

                                                     IV. SMITH' S SAG


          Smith raises a series of other issues in his SAG. None of these claims has merit.




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                                              A. Grounds for Continuance


        Smith claims that defense counsel' s vacation plans were not adequate grounds for a

continuance    under      CrR 3. 3.         His claim mischaracterizes the trial court' s stated reasons for

granting the   continuance.           Here, in addition to defense counsel being on a preplanned vacation

during the September 16, 2010 pretrial continuance hearing, defense counsel needed more time

to   adequately    prepare,      negotiate,       and     investigate.           The trial   court   also   noted the   case' s


complexity, that it involved           a   third -
                                                 strike   offense and codefendants.            Accordingly, the trial court

did not continue Smith' s trial solely because of counsel' s vacation; and, it did not abuse its

discretion in continuing trial in furtherance of the administration ofjustice.

                                                  B. Davis' s Credibility

          Smith    also   argues      that Davis' s credibility             was    suspect   and   unreliable.   But because



credibility determinations are reserved for the trier of fact, we defer to the jury on issues of
witness   credibility     and will not review       its determinations. Thomas, 150 Wn.2d at 874 -75.


                                                    C. Jury Instructions

          Smith next argues that the trial court erred in reading the jury an incomplete instruction

                                            testify. The    trial               instructed, " A defendant is not required to
 regarding Smith'                      to
                     s right not                                        court




 testify. You may not use the fact that a defendant has not testified to infer guilt or prejudice him
 in any way."      CP     at   406.    Even had Smith objected to the instruction at trial to preserve this

 issue, he does not attempt to demonstrate how this instruction is incomplete.




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                                  D. Jury Trial Right: Third Strike Finding

         Smith claims that the trial court violated his jury trial right when it imposed a third -
                                                                                                 strike

sentence because the jury did not find that Smith had twice previously been convicted of strike

offenses.    He asserts that his classification as a persistent offender must be proved to a jury

beyond a reasonable doubt, and that his classification as a persistent offender violates equal


protection. He does not demonstrate error.


         Our state and federal courts have already rejected the claim that a. defendant is entitled to

have a jury decide whether he is a persistent offender. See State v. Smith, 150 Wn.2d 135, 141-
43, 75 P. 3d 934 ( 2003),     cent.   denied, 541 U. S. 909 ( 2004). Thus, his claim fails on this issue.


         Our courts have also already rejected his claim that his classification as a persistent
                                                                                                            See State
            arbitrarily discriminates between two
offender                                                   classes of   similarly   situated recidivists.




v.         Brooks, 165 Wn.
     Reyes -                       App.    193, 206 -07, 267 P. 3d 465 ( 2011),          review granted on      other




grounds     by   175 Wn.2d 1020 ( 2012).      Smith' s claim fails.


                                             E. Ineffective Assistance


         Smith                        instances        ineffective                of counsel.    He raises general
                   finally   claims               of                 assistance




 claims relating to defense counsel' s failure to object to unspecified points at trial, unspecified

 equal   protection    violations,     improperly suppressed evidence, the State' s failure to disclose

 evidence,   and    failure to   request   evidentiary hearings.        His general, nonspecific claims fail to

 demonstrate deficient performance or prejudice. Therefore, his ineffective assistance claims fail.




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        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.




                                                               Johanson, A.C. J.




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