No. 50364-2-I.The Court of Appeals of Washington, Division One.
Filed: September 9, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Kitsap County;, No. 99-1-01316-4, Hon. William E. Howard, November 9, 2000, Judgment or order under review.
Counsel for Appellant(s), David C. Stephenson (Appearing Pro Se), Wa State Pennitentiary, #731557, 1313 N. 13th Ave, Walla Walla, WA 99362.
James L. Reese III, Attorney At Law, 612 Sidney, Port Orchard, WA 98366.
Counsel for Respondent(s), Randall A. Sutton, Kitsap Co. Deputy Pros. Atty., Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Kevin M. Anderson, Kitsap County Deputy Pros. Atty., Msc 35, Port Orchard, WA 98366-4681.
PER CURIAM.
David Stephenson appeals his convictions for three counts of intimidating a public servant. His convictions were based on undisputed evidence that he filed a purported `administrative judgment’ against three judges who had previously presided over cases against him. Stephenson makes numerous claims that the trial court erred by failing to dismiss the charges against him or by improperly conducting the trial. We find no error, and affirm.
PROCEDURAL HISTORY
Stephenson was charged by information in Kitsap County Superior Court with three counts of intimidating a judge, each count involving a different judge, in violation of RCW 9A.72.160 and RCW 9A.04.110(25). Stephenson was arraigned on November 24, 1999. A plea of not guilty was entered.
On January 31, 2000, a pretrial hearing was conducted. Stephenson represented himself. Stand-by counsel was in attendance to assist him.
The hearing concerned pretrial motions by Stephenson to dismiss the pending charges. Stephenson’s motions were denied.
On October 2, 2000, Stephenson also filed motions to dismiss the case based principally on jurisdiction and factual sufficiency. The trial court denied these motions.
FACTS
On September 29, 1995, David Stephenson was found guilty by a bench trial before Judge Williams of two counts of intimidating a public servant.
The victims, Judge Kruse and Judge Costello, had presided over an earlier trial involving Stephenson. The conviction was based on the filing of a document purporting to be a lien with the Kitsap County Auditor’s Office.
The document claimed, among other things, that the named `respondents’, including Judges Kruse and Costello, owed Stephenson $7,914,100.00. On October 19, 1999, a document entitled `Certification of Administrative Foreign Judgment’ was filed with the Pierce County Auditor’s Office. The document was filed under the name David Carroll Stephenson and was signed by Stephenson. Judges Costello, Kruse, and Williams were some of the respondents listed. The document purported to be a remedy demand and identified Stephenson as the claimant. The document stated that Stephenson was entitled to make a claim against the named respondents for money damages in excess of $500,000.00.
At trial, Judges Costello, Kruse, and Williams all testified to their position as judges. Each testified that the filing of liens or judgments against them could adversely affect them financially. Stephenson was found guilty of all three counts on October 18, 2000.
ANALYSIS I. Grand Jury
Stephenson argues that his prosecution could not properly commence without an indictment from a grand jury. The Washington Constitution, article I, section 25 provides that `[o]ffenses heretofore required to be prosecuted by indictment may be prosecuted by information, or by indictment, as shall be prescribed by law.’ A Washington State felony criminal prosecution does not require a grand jury indictment. State v. Jeffries, 105 Wn.2d 398, 423-24, 717 P.2d 722 (1986). Stephenson’s prosecution was properly commenced.
II. Notice of the Charges and Nature of the Case
Stephenson alleges that he did not have notice of the charges against him, or in his own words, `the nature of the Third party Defendants action to the Realtor.’
As held in State v. Kjorsvik, 117 Wn.2d 93, 812 P.2d 86 (1991):
All essential elements of a crime, statutory or otherwise, must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him.
This conclusion is based on constitutional law and court rule. Const. art. 1, § 22 (amend. 10) provides in part:
In criminal prosecutions the accused shall have the right . . . to demand the nature and cause of the accusation against him, . . .
U.S. Const. amend. 6 provides in part:
In all criminal prosecutions, the accused shall . . . be informed of the nature and cause of the accusation; . . .
CrR 2.1(b) provides in part that
the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.
Kjorsvik, 117 Wn.2d at 97.
Stephenson was given notice of the nature of the charges against him by means of the information, which was provided to him at his arraignment.
The information apprised Stephenson of the essential elements of the charges pending against him. The information was therefore legally sufficient to apprise Stephenson of the nature of the charges against him.
III. Notice of Substantive System of Laws
Stephenson alleges that the trial court was deficient in identifying for him the `substantive system of law’ under which he was being prosecuted. Stephenson is incorrect. Stephenson received notice through the information that he was being prosecuted under the Revised Code of Washington.
IV. Disclosure of Venue
Stephenson alleges that relief is required because the State did not disclose the venue for the trial. Venue is a constitutional right that is waived if not asserted in timely fashion. Generally, the right must be asserted before jeopardy attaches, which is to say before the jury is sworn in a jury trial. State v. Pejsa, 75 Wn. App. 139, 145, 876 P.2d 963 (1994).
In Stephenson’s pretrial motion, he objected to the judge’s failure to explain venue to him, but acknowledged that he was aware that the venue was Kitsap County. No other objections to venue are in the record before us. By failing to make a proper objection based on venue before the trial began Stephenson waived his right to object posttrial to the venue of Kitsap County.
V. Duress
Stephenson alleges that signatures were obtained by duress. He presumably refers to his signature on the judgment and sentence. Stephenson bears the burden on appeal of establishing that he is entitled to the relief he seeks. Kane v. Smith, 56 Wn.2d 799, 806, 355 P.2d 827
(1960). A defendant’s failure to cite legal authority that establishes that the trial court erred and his failure to provide any argument in support of his claim is grounds for summarily rejecting his contentions. State v. Benn, 120 Wn.2d 631, 661, 845 P.2d 289 (1993). “Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.” State v. Logan, 102 Wn. App. 907, 911
n. 1, 10 P.3d 504 (2000) (quoting DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
There is nothing in either Stephenson’s original motion or in his appeal brief which identifies the nature of the duress, or how such an allegation, even if true, impacted his prosecution and right to trial under the present case. We decline to review Stephenson’s claim of duress.
VI. Legal Representation
Stephenson objected to the appointment of any attorney on his behalf who was a member of the Washington State Bar Association. Under Washington law a non-attorney may not practice law within the state. RCW 2.48.180. Under Washington law the right to counsel means the right to effective counsel, and effective counsel presumes a qualified member of the bar. State v. DeWeese, 117 Wn.2d 369, 816 P.2d 1 (1991). The appointment of an attorney not admitted to the Washington State Bar Association would not have been legal. Stephenson’s objection is futile.
VII. Due Process
Stephenson alleges that his due process rights were violated without making a legal or factual argument about the nature of the violation. Stephenson bears the burden on appeal of establishing that he is entitled to the relief he seeks. Kane v. Smith, 56 Wn.2d at 806. A defendant’s failure to cite legal authority that establishes that the trial court erred and his failure to provide any argument in support of his claim is grounds for summarily rejecting his contentions. Benn, 120 Wn.2d at 661. Stephenson has failed to establish legally or factually that a due process violation occurred.
VIII. Jury Instructions
Stephenson objected to the giving of Instruction No. 13. Instructions are sufficient if they (1) permit each party to argue his theory of the case, (2) are not misleading, and (3) when read as a whole, properly inform the trier of fact of the applicable law. State v. Theroff, 95 Wn.2d 385, 389-90, 622 P.2d 1240 (1980). Instruction No. 13 stated:
It is not a defense to a charge of intimidating a judge that:
(1) [Stephenson] did not cause actual harm; or
(2) [Stephenson] did not intend to carry out any threat; or
(3) [Stephenson] could not have carried out any threat.
This instruction was drawn from the holding in State v. Kepiro, 61 Wn. App. 116, 120, 810 P.2d 19 (1991). As the Kepiro court explained, the underlying focus of the statute is not the intent to commit the action described in the threat but rather the intentional communication of the threat. 61 Wn. App. at 121. It was sufficient for Stephenson to communicate a threat, intentionally, to be convicted of the offense. Instruction No. 13 was not misleading and was a correct statement of the applicable law. The trial court properly gave the instruction.
IX. Sufficency of the Evidence
Stephenson alleges that the evidence was deficient because the judges did not expressly declare that they felt threatened. There is no requirement that the judge feel threatened. RCW 9A.72.160(1). Indeed, there is no requirement that the judge who is the subject of the threat even hear about it. State v. Hansen, 122 Wn.2d 712, 717, 862 P.2d 117
(1993). The evidence was not deficient because no evidence on this issue was required.
X. Posttrial Motions for a New Trial
A. Jurisdiction
Stephenson argues that the trial court lacked jurisdiction to hear his case because it had been removed to federal court. The State acknowledges that Stephenson attempted to have these matters referred to the federal court. The federal court, however, having reviewed Stephenson’s pleadings, declined jurisdiction and remanded the matter back to the trial court in Kitsap County. In remanding the case back to Kitsap County, the federal court noted that `the plaintiff does not meet the standard for removal of state criminal proceedings.’ Stephenson’s case was proper in Kitsap County Superior Court.
B. Discovery Violations
Stephenson claims that he is entitled to a new trial because the State refused to provide discovery. The rules of criminal discovery are to be construed liberally in order to serve the purposes underlying Superior Court Criminal Rules, CrR 4.7, which are “to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process[.]” State v. Dunivin, 65 Wn. App. 728, 733, 829 P.2d 799
(1992) (quoting State v. Yates, 111 Wn.2d 793, 797, 765 P.2d 291
(1988)). The prosecutor is required to disclose, before the omnibus hearing, any documents, papers, photographs, or other objects that may be used in the prosecutor’s case. CrR 4.7(a)(1)(v). The prosecutor must also disclose any material or information within the prosecutor’s knowledge that tends to negate the defendant’s guilt as to the offense charged. CrR 4.7(a)(3). The prosecutor must also disclose relevant evidence if it is reasonably possible that the evidence will be used during any phase of the trial. Dunivin, 65 Wn. App. at 733.
Stephenson claims that the State withheld portions of a federal civil rights lawsuit that involved one of the trial exhibits. Stephenson does not describe what portion of the lawsuit he did not have access to and how the remaining portion of the lawsuit could have been considered exculpatory evidence or even relevant to his case. In fact, the federal civil rights lawsuit was filed by Stephenson originally. It is not clear to us how the State would therefore have any greater access to information regarding the lawsuit. Stephenson has failed to establish any discovery violation on the part of the prosecution.
C. Arrest Warrant
Stephenson argues that the judgment should be vacated because of the alleged defects in the warrant of arrest. Stephenson alleges that his filing of a federal lawsuit would somehow absolve him of criminal responsibility for the threats he made to state superior court judges. Stephenson has not argued legally or factually how such a filing would affect the propriety of the issuance of an arrest warrant against him. We, therefore, decline to address it.
D. Admission of Stephenson’s Prior Conviction
Stephenson argues that evidence of his 1995 conviction was admitted in error. `In order to have a trial court err in the admission of testimony, or to preserve the issue for appeal, it is necessary for objections to be made at trial to allow the trial court the opportunity to rule on such an objection.’ State v. Soonalole, 99 Wn. App. 207, 215, 992 P.2d 541 (2000). Stephenson did not object to the admission of the evidence at trial. He therefore did not preserve this issue for appeal.
E. Stephenson’s Excluded Exhibits
Stephenson argues that a new trial is warranted based upon the failure of the trial court to admit his proposed Exhibits 13, 14, and 15. As acknowledged in Stephenson’s brief, Exhibits 14 and 15 were never offered.
The failure of Stephenson to offer an exhibit cannot be grounds for Stephenson to now assert that the trial court committed error by not admitting exhibits, presumably on its own motion. Soonalole, 99 Wn. App. at 215.
Stephenson did offer Exhibit 13. Exhibit 13 was presented to the witness, Judge Williams. Judge Williams testified that the document, apparently a `notice,’ was dated October 13, 1999, and had been recorded by an auditor on October 19, 1999.
Stephenson attempted to have Judge Williams read from the document before it was admitted, and an objection was sustained on grounds of relevancy. Stephenson then advised the judge that Exhibit 13 was a document that was `the first of three documents that pertain to administrative judgment.’ The State then objected to having Stephenson rather than the witness testify about the nature of the document and that was also sustained by the court.
Stephenson then asked Judge Williams to read from the document before it had been identified on the record or admitted into evidence, and an objection based upon hearsay and relevance was sustained. At that point, Stephenson offered the exhibit into evidence. The State again objected on grounds of relevancy and hearsay. The court sustained the objection, and again noted that the exhibit had not even been identified. Stephenson made no further reference to Exhibit 13.
Only relevant evidence is admissible. “Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ER 401. Minimal logical relevancy is all that is required. State v. Bebb, 44 Wn. App. 803, 814, 723 P.2d 512 (1986), aff’d, 108 Wn.2d 515 (1987). Stephenson made no attempt to establish the possible relevance of the proffered evidence. The trial court properly excluded the evidence.
XI. Motion to Vacate
Stephenson argues that the trial court erred in denying his motion to vacate based on his attempt to remove the case to federal court. As discussed earlier, the federal court rejected his motion and remanded the case back to the state trial court. The trial court properly denied his motion to vacate.
XII. Release Pending an Appeal
Stephenson alleges error by claiming that the trial court improperly denied him release on an appeal bond. A defendant does not have a right under the Washington Constitution to be released pending appeal. State v. Smith, 84 Wn.2d 498, 499, 527 P.2d 674 (1974). Trial courts are afforded broad discretion in deciding whether or not to grant such a release. State v. Cole, 90 Wn. App. 445, 447, 949 P.2d 841 (1998).
The possibility of staying a felony sentence pending the outcome of an appeal is governed by CrR 3.2(f) which provides:
Release After Finding or Plea of Guilty. After a person has been found or pleaded guilty, and subject to RCW 9.95.062, 9.95.064, 10.64.025, and 10.64.027, the court may revoke, modify, or suspend the terms of release and/or bail previously ordered.
The statutes cited in the rule further provide that a sentence may be stayed pending appeal only if the deterrent effect of the sentence will not be unduly diminished by delay and if the public interest is not jeopardized by the stay. RCW 9.95.062.
Stephenson committed the instant offense a mere two months after dismissal of his appeal of the 1995 case. The victims of the instant case were the same judges who were the victims in the 1995 case, along with the judge who had presided over the 1995 trial. These are sufficient facts to demonstrate that the need to protect the victims and to deter Stephenson from making further threats made it logical and reasonable that Stephenson begin serving his sentence immediately. The trial court did not abuse its discretion in denying his motion to be released pending the appeal.
Finally, Stephenson argues that the standards set forth in CrR 3.2(b) should have been considered. These provisions apply to preconviction release and are not applicable here.
We affirm.