STATE v. GARRIS, 50315-4-I (Wash.App. 3-10-2003)

No. 50315-4-I.The Court of Appeals of Washington, Division One.
Filed: March 10, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County, No. 001096093, Hon. Ann Schindler, March 19, 2001, Judgment or order under review.

Counsel for Appellant(s), Washington Appellate Project, Cobb Building, 1305 4th Avenue, Ste 802, Seattle, WA 98101.

Jason B. Saunders, Washington Appellate Project, Cobb Bldg, 1305 4th Ave Ste 802, Seattle, WA 98101.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/Appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Julie D. Cook, W 554 King Co Courthouse, 516 3rd Ave, Seattle, WA 98104-2312.

PER CURIAM.

Trenton Garris was charged with felony violation of a no contact order and was held in custody awaiting trial. His trial date was continued several times. Some of the motions to continue were made by Garris, but the majority of the continuances were due to the prosecutor’s unavailability. Garris claims that the trial court erred in denying his motion to dismiss for a violation of his CrR 3.3 rights. The trial court properly granted the continuances pursuant to CrR 3.3(d)(8). Further, by failing to object to any of the continuances, Garris has waived any claim that his speedy trial rights were violated. Garris also claims that the trial court erred in denying his motion to dismiss pursuant to CrR 8.3(b). This claim fails because Garris has not shown prejudice. Finally, Garris contends that the evidence against him was insufficient. Viewed in the light most favorable to the State, the evidence was sufficient to convict Garris. We therefore affirm.

FACTS
The State charged Garris with felony violation of a no contact order, based on an allegation that on August 18, 2000, Garris had violated an order prohibiting him from contacting Derek Howard, and that he had been convicted twice before of violating a no contact order. Garris was arraigned on September 28, 2000, and was held in custody pending trial, which was initially scheduled for November 20, 2000. On November 17, 2000, Garris moved to continue the trial date until December 12, 2000, and executed a speedy trial waiver. Thereafter, the trial court continued the trial date several times. On December 12, 2000, the court continued the trial date to December 14, 2000, because the prosecutor was in trial on another matter. On December 14, 2000, the trial court continued the trial date to December 21, 2000, because the prosecutor was still in trial. On December 21, 2000, the trial court granted a defense motion to continue due to defense counsel’s scheduled vacation, and reset trial for January 2, 2001. On January 2, 2001, the trial court continued the trial date to January 4, 2001, because the prosecutor was in trial. On January 4, 2001, the trial court continued the trial one day because the prosecutor was still in trial, and when the prosecutor was still in trial on January 5, 2001, the court again continued the matter until January 9, 2001. On January 9, 2001, the court continued the matter one day because both the prosecutor and defense counsel were in trial. On January 10, 2001, both attorneys were still in trial and the court continued the trial until January 17, 2001. On that date, the prosecutor was in trial, and the court continued the case two days, whereupon the prosecutor was still in trial, and the court continued the trial until January 23, 2001. With the exception of the December 12, 2000, defense motion to continue, each of these continuances were issued pursuant to CrR 3.3(d)(8). Garris did not object to any of these continuances.

The matter was called for trial on January 23, 2001. On that date, the case was assigned to a new prosecutor appearing on behalf of the State. Also on that date, Garris filed a motion to dismiss. The motion cited to CrR 3.3, but contained no argument or factual basis for the motion. The judge denied the motion without prejudice due to the lack of briefing. The case was assigned out for trial, to begin the next day.

On January 24, 2001, Garris waived his right to a jury trial, and the trial judge heard preliminary motions in limine before recessing for the day. Neither party brought up the speedy trial issue.

On January 25, 2001, Garris’ attorney again raised the speedy trial issue, but still had not briefed the issue. Counsel also claimed that the case should be dismissed pursuant to CrR 8.3(b). The trial court did not rule on the motion because the State had not had an opportunity to prepare to respond. Rather, the court indicated that it would hear argument and any witnesses on the following Monday, and began taking testimony in the trial.

On January 31, 2001, in response to the defense motion to dismiss, the State presented testimony from Dennis McCurdy, who supervised the initial prosecutor on the case, Cheryl Snow, as well as several other prosecutors in the domestic violence unit. DPA Snow’s caseload was backed up due to a number of defense continuances over the holidays. Additionally, she had one case that was predicted to be resolved by a plea bargain that ended up going to trial, and another trial that would last nearly a month. Snow’s case load was also heavier than normal because some of her cases were problematic enough (due to difficulties in contacting witnesses and obtaining an interpreter) that they appeared to be headed for dismissal, but ended up proceeding to trial. McCurdy testified that one prosecutor had left the domestic violence unit in December or January, and that a new prosecutor was unable to come into the unit until January 16, 2001. Prior to that date, he was unable to reassign any of Snow’s cases because the other prosecutors in the unit were in trial `virtually constantly.’

Based on this testimony, the court found that the prosecutor’s unavailability was due to unavoidable and unforeseen circumstances, and denied Garris’ motion to dismiss under CrR 3.3. The court also denied Garris’ 8.3(b) motion to dismiss, finding that Garris had not demonstrated mismanagement sufficient to justify a dismissal and that Garris had not been prejudiced. The trial then resumed.

At trial, Garris did not deny that there was a valid order prohibiting him from contacting Howard, or that he had been convicted of violating a no contact order twice previously. The issue at trial was whether Garris had violated the order by contacting Howard on January 18, 2000.

The State presented testimony from Howard, who claimed that he was working out at the gym at approximately 11 a.m. on January 18, 2000, when he saw Garris looking at him through the window. After this continued for a time, Howard walked outside and told Garris to leave. Garris told Howard that someone was making him get a restraining order against Howard. Howard again told Garris to leave and went back into the gym. Garris continued standing outside looking at Howard for a while, and then came into the gym. Howard cursed at Garris, again told him to leave, and told Garris he was going to call the police. Eventually, Garris left.

Howard’s testimony was corroborated by his friend, Monte Lapka. Lapka testified that while he was working out with Howard, he saw a man looking in the window for 10 to 15 minutes. He pointed the man out to Howard, who had not noticed him earlier. Howard told Lapka, who had never met Garris before, that the man was his ex-boyfriend. Lapka testified that after Garris continued to look in the window for 5 to 10 more minutes, Howard went outside to tell him to leave. Howard came back inside and told Lapka that Garris had just gotten out of jail, and that there was an order in effect prohibiting Garris from contacting him. Garris then came into the gym, and Lapka overheard Garris and Howard arguing about a no contact order. Lapka identified Garris in court as the man he had seen at the gym. Garris testified on his own behalf, and denied contacting Howard. On the date in question, he had a meeting with his probation counselor from 10:00 to approximately 10:30 a.m. After his meeting, he had a cigarette and then went to the courthouse to obtain a restraining order against Howard.

Garris testified that he was at the courthouse until approximately 12:45 p.m., and then went to meet friends for lunch. Garris presented evidence to corroborate his version of events. His probation counselor testified that Garris had been with her from 10:00 until 10:30 a.m. He had paperwork from the court that was time stamped at 11:47 a.m. and 12:28 a.m. A witness testified that she had obtained a protection order on August 18, 2000, and that the process took about two hours to complete. Garris’ friend confirmed that Garris met him for lunch at around 12:50 p.m.

The trial court found guilty as charged. This timely appeal follows.

DISCUSSION
Garris first argues that the trial court erred in denying his motion to dismiss for a claimed CrR 3.3 violation. Garris’ trial date was continued various times due to the unavailability of the prosecutor. CrR 3.3(d)(8) allows a trial court to continue a trial beyond the speedy trial time limit in increments of five days or less due to unavoidable or unforeseen circumstances unless the defendant will be substantially prejudiced. Although routine court congestion cannot justify a continuance beyond speedy trial limits, the unavailability of a prosecutor can constitute grounds for an extension under CrR 3.3(d)(8). See State v. Raper, 47 Wn. App. 530, 539, 736 P.2d 680 (1987); State v. Palmer, 38 Wn. App. 160, 162, 684 P.2d 787 (1984). “{A} trial court’s grant or denial of a motion for a CrR 3.3 continuance or extension will not be disturbed absent a showing of a manifest abuse of discretion.” State v. Silva, 72 Wn. App. 80, 83, 863 P.2d 597 (1993). The trial court here did not abuse its discretion in granting the continuances due to the prosecutor’s unavailability.

And the trial court’s finding that the prosecutor’s unavailability was unavoidable or unforeseen was well supported by the testimony of McCurdy, the prosecutor’s supervisor. We note that this determination was not made at the time that the trial court granted the CrR 3.3(d)(8) continuances. But this was because Garris did not object to the continuances at the time they were granted. He also failed to object to the trial dates set as a result of the continuances. This resulted in a waiver of his right to a speedy trial. CrR 3.3(f).

Garris insists that he did not waive the right, but was merely `patient enough to wait a long time before he began to insist on getting his case to trial.’ Appellant’s Reply Brief at 4. But a `tardy reliance on speedy trial rules cannot justify a dismissal.’ State v. Austin, 59 Wn. App. 186, 200, 796 P.2d 746 (1990). The trial court properly denied Garris’ motion to dismiss pursuant to CrR 3.3.

Garris also contends that the various continuances were a result of prosecutorial mismanagement that arose to the level of governmental misconduct, and that the trial court erred in denying his motion to dismiss pursuant to CrR 8.3(b). But CrR 8.3(b) requires a showing that there has been a prejudice to the defendant’s rights materially affecting his or her right to a fair trial. Garris alleges no prejudice. His claim is therefore without merit.

Finally, Garris argues that the evidence was insufficient to support his conviction. In reviewing the sufficiency of the evidence, the question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993). In determining whether sufficient proof exists, the reviewing court need not be convinced of the defendant’s guilt beyond a reasonable doubt, only that substantial evidence supports the State’s case. State v. Galisia, 63 Wn. App. 833, 838, 822 P.2d 303 (1992). Applying these standards, the evidence was sufficient to support Garris’ conviction. Both the victim and another witness testified that Garris contacted the victim at approximately 11:30 a.m. on August 18. In his defense, Garris testified that he had not contacted the victim on that date, and presented evidence to corroborate his story. Resolving these sorts of conflicts in the testimony comes down to a question of credibility. And credibility determinations are for the trier of fact and are not subject to review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). Garris’ challenge to the sufficiency of the evidence therefore fails.

Affirmed.