No. 24561-2-II.The Court of Appeals of Washington, Division Two.
Filed: January 19, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Lewis County, No. 98-1-00932-7, Hon. David R. Draper, March 24, 1999, Judgment or order under review.
Counsel for Appellant(s), Thomas E. Doyle, Attorney At Law, P.O. Box 510, Hansville, WA 98340-0510.
Counsel for Respondent(s), J. A. Toynbee, Lewis Co. Deputy Pros. Atty., M/S Pr001, 360 N.W. North St., Chehalis, WA 98532-1900.
ALEXANDER, J.P.T.[1]
A jury convicted Keith L. Nash of second degree rape of a child. Nash contends that there is insufficient evidence to support the verdict and that he did not receive adequate representation or a fair trial. We disagree with both contentions and affirm the trial court.
FACTS
Nash was charged in Lewis County Superior Court with second degree rape of a child. The charge was based on statements from unmarried 12-year-old H.C.D. that 23-year-old Nash had sexual intercourse with her. Before trial, Nash asked to waive his right to a jury. He did not, however, provide any evidence or argument in support of a conclusion that a jury could not be fair and impartial. The trial court denied the request, concluding that it was better to have 12 minds scrutinizing the testimony and deliberating together because the case turned on the credibility of two people. At trial Nash denied that he and H.C.D. had sexual intercourse. H.C.D. testified that Nash `raped’ her. The jury convicted Nash, and he appeals to this court.
ANALYSIS I. Sufficiency of the Evidence
Nash contends that there is insufficient evidence that he raped H.C.D. Evidence is sufficient to support a conviction if, viewed in the light most favorable to the prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We are satisfied that a rational trier of fact could find beyond a reasonable doubt that Nash committed second degree rape. H.C.D. testified that Nash had sexual intercourse with her. It was also undisputed that H.C.D. was 12 years old and not married and that Nash was 23 years old.
Nash contends that there was insufficient evidence corroborating the victim’s testimony. But RCW 9A.44.020(1) states that `[i]n order to convict a person of any crime defined in this chapter [sex offenses] it shall not be necessary that the testimony of the alleged victim be corroborated.’ Nash asserts that H.C.D.’s failure to immediately report the rape, her inability to recall details about the rape, and testimony from her sister and friend, that nothing seemed out of the ordinary, undermine H.C.D.’s credibility. But credibility determinations are for the trier of fact and will not be disturbed by this court on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
II. Ineffective Assistance of Counsel and Unfair Trial
Nash contends pro se that his trial counsel was ineffective and that he received an unfair trial. To establish ineffective assistance of counsel, Nash must demonstrate (1) that his counsel’s representation fell below an objective standard of reasonableness based on a consideration of all the circumstances, and (2) that he was prejudiced. State v. Mierz, 127 Wn.2d 460, 471, 901 P.2d 286, 50 A.L.R.5th 921 (1995). Nash asserts that he was deprived of a fair trial for many of the same reasons he believes his trial counsel was ineffective. We have reviewed each of Nash’s assertions and conclude that Nash cannot demonstrate that his counsel’s representation fell below an objective standard of reasonableness based on a consideration of all the circumstances, or that Nash received an unfair trial.
Nash contends that he was deprived of a fair trial because the trial court denied his request for a bench trial. He claims that pretrial publicity could have prejudiced the jury and that the victim’s family wanted a bench trial. `Cases required to be tried by jury shall be so tried unless the defendant files a written waiver of a jury trial, and has consent of the court.’ CrR 6.1(a); see also RCW 10.01.060. We review the trial court’s decision disallowing an accused to waive his right to a jury trial for an abuse of discretion. State v. Maloney, 78 Wn.2d 922, 928, 481 P.2d 1 (1971); State v. Jones, 70 Wn.2d 591, 594, 424 P.2d 665
(1967). Failure to consent is reversible error only when the trial court’s exercise of discretion is clearly untenable or manifestly unreasonable. State v. Batten, 17 Wn. App. 428, 439-40, 563 P.2d 1287, review denied, 89 Wn.2d 1001 (1977). There is no constitutional right to a non-jury trial. Singer v. United States, 380 U.S. 24, 35-36, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).
A trial court does not abuse its discretion when it refuses to grant a request for a jury waiver based on respect for and reliance on the jury system. See State v. Thompson, 88 Wn.2d 13, 15, 558 P.2d 202 (1977).
There is no reversible error when the defendant fails to show he was prejudiced by the denial. Maloney, 78 Wn.2d at 928.
In Thompson, for example, our Supreme Court held that it was not reversible error to deny a defendant’s request to waive a jury trial when the defendant complained that heightened public interest in recent crimes in the county and her appearance and history of drug and alcohol abuse would not favorably impress a jury. The trial court reasoned among other things that a jury prevents the appearance of impropriety, prevents the appearance of lack of fairness or injustice, and frees the court from weighing the evidence. Thompson, 88 Wn.2d at 14-15.
We conclude that the trial court did not abuse its discretion when it denied Nash’s request to waive a jury trial. Nash provided no reason at the time for why he thought a jury trial would prejudice him and the trial court properly relied on its judgment that a jury could better assess the credibility of the witnesses. For the reasons stated above, we affirm Nash’s conviction.
III. Taxable Costs
The State requests, pursuant to RAP 14.2, RAP 14.3, and RCW 10.73.160, that we require Nash to pay all taxable costs of this appeal including attorney’s fees. RCW 10.73.160 allows an appellate court to order convicted indigent defendants to pay appellate costs, including the fees for appointed counsel. State v. Blank, 131 Wn.2d 230, 233, 253, 930 P.2d 1213 (1997). RAP 14.2 and RAP 14.3 describe who is entitled to costs and which expenses are allowed. Because the State is the substantially prevailing party and we upheld Nash’s conviction, the State may collect the taxable costs of this appeal, including attorney’s fees.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR: HOUGHTON, P.J., BRIDGEWATER, J.