IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON STATE OFWASHINGTON, No. 68459-1-1 Respondent,

\§ DIVISION ONE V. UNPUBLISHED OPINION KOREY TAYLOR, Appellant. 

## FILED: June24,2013 §§ S?

J.* *"j 

## Appelwick, J.

— TaylorarguesthatthetrialcourtviolatedhisrighttocoSiseJSi| choice when it denied his day-of-trial motion to continue so he could retainaprivaie counsel. The trial court did not abuse its discretion, because it properly balanced the defendant's right to counsel of his choice against the public interest in prompt and efficientadministration ofjustice. We affirm. FACTS Richard Werts owned a house in Edmonds, Washington. Korey Taylor lived there with Jennifer Ackaret, Werts's stepdaughter. On October4, 2010, Werts started preparing the ground to poura cementslab inthe yard ofthat house so he could keep a motorhome parked there. Taylortold Werts not to putthe slab inthat location, because 

### Taylor was concerned the weightwould create a leakinthe waterline running underthe
area. The discussion escalated into an argument that did not become physical. The argumentended when Werts leftthe propertywith his stepson. The next day, Werts returned to the property and started working on the project 

### again while Taylor and Ackaret were away. When Taylor and Ackaret returned home, Werts was still in the yard holding a rake. He and Taylor began to argue again, theNo. 68459-1-1/2 

### argumentescalated, and the rakestruckWerts and he wasleftbleedingfrom his head.1 Ackaret took Werts to Edmonds Hospital, and an ambulance transferred him to 

### Harborview Medical Center. Detective Shane Hawley and Officer J. Robinson of the Edmonds Police Department responded to an assault report and spoke with Werts at Harborview. While returning to Edmonds, they were dispatched to the house where Werts was injured. There, the police interviewed Taylor and Ackaret, taking written statements from them. Ackaret showed the rake to the police, who photographed itand took it into evidence. The State charged Korey Taylorwith third degree assault inconnection with the injury. Taylor's trial began January 23, 2012. On the day of trial, the State added a second degree assault charge and deadly weapons enhancements to both charges. 

### When the proceedings started, Taylor asked the court to allow him to substitute a private attorney for his court appointed counsel. He said family members were previously unwilling to get involved because the victimwas also a family member, but they agreed the day before trial to help pay for private counsel because of the 

### seriousness ofthe charges. Taylor also said that he wanted to be confidentgoing into trial, but that appointed counsel told himthat he was going to lose. After hearing from Taylor, defense counsel, and the prosecutor, the court refused to delaytrialand denied Taylor's motion. 

### A jury found Taylor guilty on both charges and returned special verdicts that he
was armed with a deadly weapon when he committed the crimes. After the verdict, the


### 1The witness accounts differ as to how Werts' injury was caused. We discuss those accounts belowinouranalysis ofTaylor's statementofadditionalgrounds.No. 68459-1-1/3



### court dismissed the thirddegree assaultconviction and sentencedTaylor on the second degree assault with a deadly weapon enhancement. Taylor appeals. He also filed a statementofadditional grounds. DISCUSSION I. Right to Retained Counsel ofChoice 

### Taylor argues that the trial court violated his constitutional right to retained counsel of his choicewhen itdenied his requestto substitute his appointed counsel with retained counsel. He asks that the judgment be reversed, because the trial court inappropriately focused solely on the competence of counsel and failed to make an explicit finding thatgranting the requestwould cause undue delay. We apply the abuse ofdiscretion standard when reviewing a trial court's decision regarding a defendant's motion to substitute retained counsel. State v. Price, 126 Wn. App. 617, 632, 109 P.3d 27 (2005). While defendants have a Sixth Amendment right to choose their retained counsel, it is a qualified right. State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268 (1994). When a defendant asserts the right to retain counsel of choice in such a waythatwould delaytrial, courts mustbalance the defendant's interest 

### in exercising this right against the public interest in the prompt and efficient administration ofjustice. Id at 824-25. We uphold a trial court's decision on such a motion unless the decision is an unreasoning and arbitrary insistence on speed and efficiencyinthe face of ajustifiable requestfordelay. kLat 824. 

### Appellate courts have articulated a host offactors for determining whether a trial court's decision unjustifiably interferes with the defendant's right to retain counsel of choice. Ji at 825; 3 Wayne R. LaFave et al., Criminal Procedure § 11.4(c) at 718-720No. 68459-1-1/4 

### (3d ed. 2007). The court's analysis of the following factors supports itsdecision. First, Taylormade his requeston the morningthattrialwas setto begin. See Statev. Chase, 59 Wn. App. 501, 506-07, 799 P.2d 272 (1990) (requests to retain counsel shortly beforeorattrial should generally bedenied inthe absence ofsubstantial reasons tothe contrary). Second, the trial court determined that Taylor had not yet retained, or even identified, substitute counsel, and the new attorney would have needed time to prepare for trial. See Jd at 507 (no abuse of discretion when trial court denied motion to continue in order to retain counsel when defendant had not yet retained counsel). Third, the trial court considered whether Taylor had some legitimate cause for dissatisfaction with counsel and found none. See Roth, 75 Wn. App. at 825. Fourth, defense counsel repeatedly indicated that he was prepared to go to trial that day. See jd Finally, the court's inquiry revealed no indication that the denial ofTaylor's motion would materially or substantially prejudice his case, and Taylor does not claim on appeal thatthe court's ruling prejudiced him inanyway. See id at 825-26 

### Taylor argues that the trial court violated his right to counsel ofchoice because "there was no finding that Mr. Taylor's requestwould result in an unreasonable delay in 

### the start oftrial." The court did not utter the words "undue" or "significant delay."2 However, the record shows quite clearly thatthe trial court carefully considered several 

### factors bearing on the significance and length of the delay: Taylor had not identified



### 2Taylorcitesno authority, and wefound none, thatwould renderthecourt's decision erroneous because it did not utter those specific words when it nonetheless made a 

### reasoned decision that was not arbitrary. Failure to cite authority constitutes a 

### concessionthat the argumentlacks merit. State v. McNeair, 88 Wn. App. 331, 340, 944 P.2d 1099 (1997).No. 68459-1-1/5 replacement counsel; a continuance would have pushed the trial past the speedy trial date; and a continuancewould have caused scheduling difficulty for several witnesses. Tayloralso argues thatthe trial court improperly relied solely on the effectiveness of current counsel when ruling on Taylor's motion. As Taylor correctly points out, a defendant's right to choose one's retained counsel is independent of the right to competent counsel. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S. 

### Ct. 2557, 165 L. Ed. 2d 409 (2006). The right to competentcounsel comes in part from the Sixth Amendment's purpose ofensuring a fair trial, jd at 146. Incontrast, the right to select counsel of one's choice is "the root meaning ofthe constitutional guarantee." Id at 147-48. The right to counsel ofchoice "commands, not that a trial be fair, but that


### a particularguarantee offairness be provided—to wit,thatthe accused be defended by the counsel he believes to be best." jd at 146. "Where the right to be assisted by counsel of one's choice is wrongly denied, therefore, it is unnecessary to conduct an 

### ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation." Id at 148. The trial court would have been wrong if itdenied Taylor's request because he 

### had not shown prejudicewithinthe meaning of Strickland v.Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). However, the trial courtdid not do this. The trial court noted that there was no evidence of a failure to cooperate, disregard of 

### counsel's advice, conflict of interest, or personal antagonism. But, it also based its 

### ruling on the fact that no substitute counsel was available and ready to proceed. While the court considered factors which itmight also have considered if itwas looking at an 

### ineffective assistance ofcounsel question, it did not indicate that a finding of ineffective assistance ofcounsel was a prerequisite to granting Taylor's request.No. 68459-1-1/6 

### The trial court properly balanced Taylor's right to counsel of his choice against the public interestinpromptand efficient administration ofjustice.

II. Statement ofAdditional Grounds Taylor raises two issues in a statement of additional grounds. The first is the


### same issue we discuss above. We need not consider it further. Second, he alleges "tampering of evidence/conflict of interest." It is unreviewable under RAP 10.10(c), because he fails to adequately inform the court of the nature and occurrence of the alleged errors. Taylor argues four other issues in a supplemental statement of additional grounds. First, he argues that the State failed to preserve exculpatory evidence. Second, he claims that the State did not present sufficient evidence to support his conviction. Third, he says he received ineffective assistance of counsel. His final argument is that the State was not entitled to charge him with both second and third degree assault. Each of his argumentsfails. To comport with due process, the prosecution has a duty to disclose material exculpatory evidence and a corresponding duty to preserve evidence. State v. Wittenbarqer. 124 Wn.2d 467, 475, 880 P.2d 517 (1994). The central inquiry in a 

### challenge alleging the State failed to preserve evidence is whether the lost evidence
was "'materially exculpatory'" or merely "'potentially useful.'" State v. Burden, 104 Wn. App. 507, 509, 17 P.3d 1211 (2001). Evidence is materially exculpatory if (1) its 

### exculpatory value was apparent before the evidence was lost, and (2) the nature ofthe evidence leaves the defendant unable to obtain comparable evidence by other reasonably available means. Wittenbarqer, 124Wn.2d at475.No. 68459-1-1/7 Taylorasserts: The police showed up at the crime scene at least two hours after the alleged crime had occurred, took statements from the defendant and other 

### witnesses. They removed the weapon (rake) without taking notes of the rakes location. Nophotos ofthe crime scene [were] taken; there [was] no form offorensic evidence collected in this criminal case. He further asserts: 

### The defendant truly believes that his case would depend on forensic evidence collected at the scene of the crime; location of the rake, 

### indentation in the ground [where] the rake made contact, point of [DNA (deoxyribonucleic acid)] contactwith the rake, finger printevidence ofthe rake, blood splatteron clothing orground, blood droppings. 

### He claims that, insum, the police failed to follow properprocedures. But, because this issue was not raised below, the facts that he alleges are not fully developed in the record, and some ofthem are directly contradicted bythe existing record. For instance,
a police officer testified that pictures were taken at the crime scene. There was no testimony whatsoever about proper police procedures inthis type ofcase. Issues that involve facts or evidence not in the record are properly raised through a personal restraint petition, not a statement of additional grounds. State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008). Moreover, Taylor has failed to show that the type of evidence police officers allegedly failed to preserve is materially exculpatory. He identifies evidence that could have possibly assisted his claim thatWerts's injuries were caused by falling on the rake. But, thattheory did not arise until trial. At the crime scene, the police had no reason to suspect that was what happened. Taylor himselftold police officers that Werts swung the rake at him, that Taylor blocked it, and that the rake then bounced back and hitNo. 68459-1-1/8

Werts in the head. The evidence's exculpatory value, ifany, was not apparent at the time ofthe initial investigation. Taylor next argues that the State never established that he actually possessed the rake, and that there is thus insufficient evidence to support a conviction for second degree assault with a deadly weapon. Evidence is sufficientto support a conviction if, viewed inthe light most favorable to the prosecution, itpermits any rational trier offact to findthe essential elements ofthe crime beyond a reasonable doubt. Statev. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Moles. 130 Wn. App. 461, 465, 123 P.3d 132 

### (2005). Credibility determinations are within the exclusive province ofthe jury. See, e.g.. State v. Thomas. 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in part
on other grounds by Crawford v. Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 

### There were essentially three versions of events presented at trial. First, witnesses and Taylor himself initially told police that Werts swung the rake at Taylor, 

### Taylor blocked it, and itrebounded and hit Werts. Second, at trial Taylor and witnesses testified that Werts swung the rake at Taylor, Taylor blocked it, and thenWerts fell and landed on the rake. Third, Werts testified that, as he approached Taylorwith the rake, 

### Taylor grabbed the rake and eventually established control of it. Werts was pulled forward, let go, and then was hitwith the rake. A doctor testified that Werts's injury would have required a significant amount of force and would have been unlikely to 

### resultfrom being struckwith a deflected rake blow. Werts'stestimony togetherwiththe

8No. 68459-1-1/9
doctor's testimony constitutes sufficient evidence for a rational trier offact to conclude thatTaylor had control ofthe rake and struckWerts. Taylor further argues that he received ineffective assistance of counsel. To 

### establish ineffectiveassistance ofcounsel, a defendant must prove that the attorney's performancefell below an objective standard ofreasonableness and that the deficiency prejudiced the defendant. Strickland. 466 U.S. at 687. The reasonableness inquiry presumes effective representation and requires the defendantto showthe absence of a 

### legitimate strategic or tactical reason for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995). Prejudice is present ifthere is a reasonable probabilitythat, but for counsel's error, the resultwould have been different, jd at 334-35. Taylor argues that defense counsel was ineffective for three reasons. The first
reason Taylor asserts is that defense counsel failed to challenge the failure to properly 

### preserve the crime scene, and failed to conduct an independent investigation. Second, Taylor argues that defense counsel did not point out to the jury that there was no evidence such as fingerprints or DNA evidence. Third, Taylor argues that defense counsel failed to retain any expert witnesses to counter the State's expert witnesses. But, the police did not fail to collect or preserve evidence with exculpatory value that
was apparent at the time, so defense counsel was not deficient for failing to raise that argument. Taylor does not identify what additional "investigatory evidence" defense counsel could or should have presented. The decision to not point outthe lack of DNA evidence or fingerprint evidence is a particularly understandable tactical decision. All of the witnesses, including Taylor, acknowledged that Taylor touched the rake and thatNo. 68459-1-1/10


### Werts was injured byit. Finally, we are unable to review histhird argument because it does notidentify the nature and occurrence of the alleged error. RAP 10.10(c). He offers no explanation as to which witnesses' testimony could have been rebutted, or whataspectofthattestimony could have been rebutted. Counselwas not deficient. 

### Taylor lastlyargues thatthe State improperly told the jury that it could find Taylor guilty ofeitherassaultinthe second degree orassaultinthethirddegree "becausethey
were essentially the same charge." But, nothing prevents the State from charging a defendantwith lesserincluded offenses. Thetrialcourt laid to rest any doublejeopardy
concerns when itdismissed the convictionforassaultinthethird degree.
We affirm.

WE CONCUR:

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