STATE v. YU, 145 Wn. App. 1035 (2008)

No. 59091-0-I.The Court of Appeals of Washington, Division One.
July 7, 2008.

Appeal from a judgment of the Superior Court for King County, No. 06-1-01293-0, Nicole MacInnes, J., entered October 16, 2006.

Affirmed in part, reversed in part, an remanded by unpublished opinion per Appelwick, J., concurred in by Agid and Ellington, JJ.

PER CURIAM.

Bing Yu was convicted of two counts of second degree rape, two counts of fourth degree assault, and one count of felony harassment. We affirm all but the conviction for felony harassment. The trial court did not abuse its discretion by failing to order a competency hearing sua sponte because the court did not have reason to doubt Yu’s competence, and none of the issues that Yu raised in his supplemental briefs warrants relief. But we accept the State’s concession that the evidence was insufficient to support Yu’s conviction for felony harassment.

Facts
On January 22, 2006, Seattle police were dispatched to a pancake restaurant in the University District. A woman had locked herself in a restroom after asking employees to call the police. When officers arrived, they could hear the woman sobbing as they stood outside the bathroom. She opened the door only after she was convinced they were police officers.

Xuemei Geng told the officers that throughout her nearly ten-year marriage, her husband, Bing Yu, accused her of having affairs, and then beat her. Recently, he had threatened to kill her. He had forced her to have sex earlier that day. She said that she ran away, leaving their daughter alone in the car, when Yu went into a restaurant to talk to a friend. Officers observed that Geng had both old and new bruises on her body.

Looking for Yu, officers went to the restaurant and then to the couple’s apartment building, where Yu approached them and said, “I think you’re looking for me.” Officers told Yu he was being investigated for rape. He became upset, and claimed that his sex with Geng was consensual.

Yu was initially charged with felony harassment-domestic violence, assault in the second degree-domestic violence, and rape in the second degree-domestic violence. The information was amended to charge another count of rape in the second degree-domestic violence, and two counts of assault in the fourth degree-domestic violence.

At trial, Geng testified that Yu hit her with a belt; held a knife to her back while telling her he wished he could kill her; pulled out her pubic hair because he was angry at the thought that others had touched her there; squeezed his hands around her neck until she thought she was going to die; and forcibly penetrated her with a sake bottle, initially ignoring her when she screamed at him to stop. On the day Yu was arrested, he had gone to Geng’s workplace to look for evidence of her infidelity. Believing he found it, he beat her. When they returned home, he wanted sex. Geng did not want to have sex, but she did not feel that she had any choice.

Yu testified on his own behalf. He agreed with much of what the State alleged. He admitted he became angry at Geng because he believed she had sex with other men. He admitted he pulled out some of her pubic hair. But he claimed she did not object when he penetrated her vagina with a sake bottle, and he stopped using the bottle when he realized it was hurting her. Yu admitted that on the day he was arrested, he kicked and slapped Geng at her workplace, and was holding a knife when Geng entered their bedroom later. But he claimed that when they had sex, it was consensual.

The jury found Yu guilty of all of the charges except second degree assault. At sentencing, defense counsel argued that Yu was delusional: “He still believes in his heart of hearts that he had consent.”

Analysis
Competency

Yu first contends the trial court erred because it did not, sua sponte, order a competency hearing. We disagree. The trial court had no reason to doubt Yu’s competency to stand trial until after trial was over.

In Washington, a person who is incompetent may not be tried, convicted, or sentenced for committing an offense. In the Matter of the Personal Restraint of Fleming, 142 Wn.2d 853, 862, 16 P.3d 610 (2001). The goal of requiring a criminal defendant to be competent is to ensure that he can understand the proceedings and assist counsel. Fleming, 142 Wn.2d at 862.

If there is reason to doubt the defendant’s competence, the court must hold a hearing. State v. Lord, 117 Wn.2d 829, 901, 822 P.2d 177 (1991). Considerable weight is given to the attorney’s opinion regarding his client’s competency and ability to assist the defense. Id. If the trial court has no reason to doubt defendant’s competence, it is not an abuse of discretion to proceed without a competency hearing Fleming, 142 Wn.2d at 864.

As in Fleming, the court here had no information suggesting a reason to doubt Yu’s competence. At no time did his attorney suggest competency might be an issue, and nothing in the conduct of trial gave rise to such concerns. Yu responded rationally to questions. He did not disrupt the proceedings. He is well educated, highly intelligent and legally sophisticated, and was so described by his attorney. He testified for almost a day. He clearly understood the charges against him, understood the proceedings, and nothing in his demeanor or in the evidence suggested he was unable to assist his attorney.

At sentencing, defense counsel advised the court he had not been able to present an insanity defense because his client would not cooperate. He presented a report from a neuropsychologist indicating that because of a mental disorder, Yu was unable to cooperate in pursuing an insanity defense. The report questioned Yu’s competency to assist his attorney at trial. Defense counsel asked the court to impose a sentence at the low end of the standard range. Counsel did not suggest he doubted Yu’s competence.

Yu now argues that the court should have, sua sponte, ordered a competency hearing at that point.

The competency requirement extends to sentencing. The defendant must understand the proceedings and be able to assist his attorney. Fleming, 142 Wn.2d at 862. But information presented to the court at the sentencing hearing focused upon the fact that Yu refused to cooperate in presentation of an insanity defense.[1] The trial had already occurred. At that point, the question was Yu’s competence to proceed to sentencing. Nothing in the report raised any question about Yu’s ability to understand the proceedings and assist his attorney for purposes of sentencing, and the fact that defense counsel clearly had his client’s permission to raise the issue at sentencing in fact demonstrates the contrary. The court had no reason to order a competency hearing at that point.

Felony Harassment
The State concedes that the evidence presented at trial was not sufficient to establish that Yu threatened to kill Geng on the day he was arrested. The concession is well taken.

The court properly instructed the jurors that to convict Yu of felony harassment, they had to agree on the specific act Yu committed that constituted harassment. The State relied upon three acts that could have constituted felony harassment, but it proved only two of them at trial.

Because the evidence is not sufficient to support one of the means the State alleged as constituting felony harassment, we accept the State’s concession of error and reverse Yu’s conviction for that charge.

Pro Se Issues
In his pro se statement of additional grounds for review, Yu challenges the sufficiency of the evidence to support his conviction of one of the rape charges. He fails to understand that a rape may occur even if the victim did not voice her objection to intercourse.

“A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person: [b]y forcible compulsion.” RCW 9A.44.050(1)(a). Yu admitted that he had hit and kicked Geng and had a knife in his hand when Geng entered the room before they had sex. Geng testified that she felt she had no choice but to comply. This evidence was sufficient to conclude that Yu engaged in sexual intercourse with Geng by forcible compulsion.

Yu argues that his defense counsel was ineffective, but the facts he asserts do not support his argument. To establish that counsel was ineffective, the defendant must prove that counsel’s performance fell below a reasonable standard and, as a result, the defendant was prejudiced. State v. Townsend, 142 Wn.2d 838, 843-4, 15 P.3d 145 (2001). Prejudice is established by showing that “there is a reasonable probability that, but for counsel’s error, the result would have been different.” Id. If either part of the test is not satisfied, an ineffective assistance of counsel claim fails. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996).

Courts approach ineffective assistance claims with a strong presumption that representation was effective. Id.
at 843. If counsel’s actions were the result of legitimate trial strategies or tactics, an ineffective assistance claim fails Id. at 847.

Yu complains that defense counsel spent little time cross-examining witnesses, compared to the time that prosecutor spent on direct. But the record suggests that defense counsel deliberately limited his questions as a strategy to avoid eliciting testimony that was likely to be unfavorable.

Yu also complains that his attorney failed to present evidence of Geng’s infidelity. But such behavior, even if proved, would not excuse Yu’s conduct. Further, counsel presented evidence in the form of Yu’s testimony about Geng’s alleged infidelity. Yu’s testimony in fact showed that his beliefs were likely unfounded. Counsel’s decision not to offer more evidence on the subject probably was thus a legitimate trial decision.

Yu has not established ineffective assistance of counsel.

Finally, Yu argues that charging him with rape and amending the information to include additional charges is evidence of malicious prosecution. He provides no authority supporting his argument, which is based upon a misunderstanding of the concept of forcible compulsion. Defense counsel recognized this problem when he argued for a sentence at the low end of the standard range:

Mr. Yu is perhaps one of the most intelligent defendants that we have seen walk through this courtroom. He’s extremely intelligent. I guess that just goes to the heart of it, that he fully believed that he had consent, and it’s clear to the Court, and to the jury most relevantly, that he didn’t.

Yu does not show that malicious prosecution or any other error entitles him to relief.

Conclusion
We affirm Yu’s convictions for two counts of second degree rape and two counts of fourth degree assault. We accept the state’s concession of error on the felony harassment count, vacate that conviction, and remand for resentencing.