IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. ERIC SLANE, Appellant. DIVISION ONE c2
No. 72001-5-1

— UNPUBLISHED OPINION ~

CO 

### FILED: January 19, 2016 ~" Dwyer, J. — Eric Slane appeals multiple felony and misdemeanor convictions of malicious mischief and a conviction of bailjumping. He contends 

### that he was deprived of hisconstitutional due process right to have ajury determine each element of the crime beyond a reasonable doubt when his 

### attorneys argued, over his objection, that hecommitted the acts underlying the 

### charges. He further claims that becausehis attorneys pursued a strategy that he disagreed with, he wasdeprived ofhis constitutional right tocounsel. Butthe jury wasrequired tofind every element ofthecharged crimes proved beyond a reasonable doubt in order to convict Slane, and Slane's counsels' strategy did not relieve the State of its burden of proof. Slane entered a plea of not guilty, 

### andhis attorneys made sound tactical decisions consistentwith theobjective of his plea and subjected the State's case tomeaningful adversarial testing. SlaneNo. 72001-5-1/2
fails to establish a violation of his right to due process or his right to the effective assistance of counsel. We affirm.
I Inthe early morning hours of August 26, 2011, police responded to reports that the tires of more than a dozen vehicles parked along the same road in a 

### north Seattle residential neighborhood had been slashed.1 An owner of one of the vehicles saw a man wearing dark clothing and a white hat crouched by a 

### vehicle plunging a knife into a tire. Approximately an hour after the police first responded to the scene, a police officer noticed a man hiding in the bushes near the vehicles. The man, later identifiedas Eric Slane, was wearing dark clothing 

### and dropped a white hat as he emerged from the bushes. He was carrying two folding knives. 

### Slane lived in a group home on the same street where the damage 

### occurred. Hetold the police officerthat he heard a commotion and came outside 

### to investigate. Slane's vehicle, parked along the same street, was unharmed. Video surveillance footage showed a manwearing darkclothing and a white hat
next to one of the vehicles that sustained damage. Based on this August 2011 incident, and on Slane's failure to appear at a 

### July 2013 court hearing, the State charged Slanewith two felony counts of malicious mischief in the second degree, five misdemeanor counts of malicious 

### mischiefin the third degree, and one count ofbailjumping. Although the State

1Another vehicle parked on a driveway on the same streetsustained a different type of damage during theincident. The rearwindow ofthat vehicle was shattered and inside thevehicle was an unbroken bottle of liquidthat appeared to contain urine.No. 72001-5-1/3 initially filed charges in December 2011, trial was delayed for various reasons, including questions regarding Slane's competency.2 For several months before the April 2014 trial, itwas clear that Slane's attorneys planned to raise defenses to all charges based on Slane's mental health. A few weeks before trial, when Slane's attorneys moved to sever the bail 

### jumpingcharge from the malicious mischiefcharges, Slane strenuously opposed the motion. But he did not object when his attorneys confirmed that they would 

### pursue a diminished capacity defense to the malicious mischiefcharges and the statutoryaffirmative defense ofuncontrollable circumstances to the bailjumping 

### charge.3 During voir dire, Slane's counsel extensively questioned potentialjurors about their attitude toward a mental health defense. 

### At the outset of opening remarks, one ofSlane's attorneys told the jury 

### that Slane was a paranoid schizophrenic who was experiencing a psychiatric crisis in the summer of 2011. Counsel claimed that because of his acute 

### symptoms, Slane could not, and did not, form malicious intent. Slane interjected: Idid not want this defense. They didthis—they wouldn't—
... let me come to court without this defense. Itwas the only way I could get in front of a jury. Ineed witnesses. After he directed obscenities at counsel and argued with the court, Slane 

### eventuallyallowed his counsel to continue her argument. Slane's attorney 

### predicted that the State would present abundantevidence showing that Slane
2Following an evaluation by staffatWestern State Hospital, thetrial courtdetermined that Slane was competent to stand trial. 3UnderRCW9A.76.170(2), it is an affirmative defense to bailjumping"that uncontrollable circumstances prevented the personfrom appearing or surrendering, and that the person did notcontribute tothe creation ofsuch circumstances in reckless disregard ofthe requirement to appear orsurrender, and thatthe person appeared orsurrendered as soon as such circumstances ceased to exist."No. 72001-5-1/4
caused the damage at issue and explained that the defense did not intend to challenge that evidence. Instead, defense counsel argued that thejury should find Slane not guilty of the charges because he did not cause the property damage with malicious intent and because his mental health symptoms prevented him from appearing in court in July 2013. Slane's attorneys presented evidence to support his defense, including the testimony of Slane's friend ofseveral years, who testified about Slane's longstanding mental health issues and said that Slane told him he damaged the vehicles in order to discover what people were thinking about him. In addition, Slane's mental health case manager testified that Slane was increasingly 

### disengaged in the summer of2011. She also testified that a few days after the property damage incident, Slane was found non-responsive in the showerwith the shower running. He was taken to the emergency room. Approximately two weeks later, based on concerns about Slane's deteriorating mental health, the


### case managerfiled a petition forhim to be evaluated for possible involuntary
commitment. Finally, defense counsel presented the onlyexpert testimony in the case, 

### that of forensic psychologist, Dr. Paul Spizman. Dr. Spizman testified that he believed that Slane was experiencing acute symptoms of his mental illness in September 2011 and that there was a "verydistinct possibility" that Slane was unable to form the mental state of malice. Among other evidence, Dr. Spizman relied on video evidence showing Slane in the back of a police vehicle on the 

### night of the incident in which he appeared to respond to internal stimuli. Dr.

4No. 72001-5-1/5 Spizman also testified that Slane appeared to have decompensated in July 2013, around the time he failed to appear in court, and that his mental health symptoms could have interfered with his ability to appear. Slane did not testify. When the defense counsel rested its case, Slane objected citing a constitutional "right not to rest" and his right to "competent counsel." The court explained to Slane that he would be removed from the courtroom if he continued to disrupt the proceedings. Slane responded by 

### leaving the courtroom "underprotest." In closing arguments, defense counsel urged the jury to find Slane not guilty of allcharges. 

### Thejury convicted Slane as charged. The court imposed nofurther 

### confinement, suspending the remainderof the sentence upon 24 months of 

### probation. As a condition ofprobation, the court required Slane to undergo a mental health evaluation and follow treatment recommendations. Slane appeals.
II The Fourteenth Amendment right to due process and the Sixth 

### Amendment right to a trial byjury, takentogether, entitle a criminal defendantto 

### ajury determination ofguilt beyond a reasonable doubt as to every element of the charged crime. Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); In reWinship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); U.S. Const, amends. VI, XIV; Wash. Const, art. 

### I, §§ 3, 22. In this case, for thejury toconvict Slane ofmalicious mischiefin the second degree, the State was required to prove beyond a reasonable doubt that Slane (1) knowingly and maliciously (2) caused physical damage to the propertyNo. 72001-5-1/6 ofanother in an amount exceeding seven hundred and fifty dollars. RCW 9A.48.080(1)(a). To find Slane guilty of malicious mischiefin the thirddegree, 

### the jury had to find beyond a reasonable doubt that Slane (1) knowingly and 

### maliciously (2)caused physical damage to the propertyof another, "under circumstances notamounting to malicious mischiefin the first or second degree." RCW 9A.48.090(1)(a). "Malice" means "an evil intent, wish, or design to vex, 

### annoy, orinjure another person" andmay be inferred from an act donein willful disregard of another's rights or an act wrongfully done withoutjustcause or excuse. RCW 9A.04.110(12). Finally, to convict Slane ofbailjumping, the State


### was required toestablish beyond a reasonable doubt that Slane (1) was 

### "released by court order oradmitted to bail with knowledge oftherequirement of a subsequent personal appearance before any court ofthis state" and (2) he failed to appear as required. RCW 9A.76.170(1). Slane claims that defense counsel "conceded that he committed all of the 

### actsunderlying themalicious mischiefand bailjumping charges" and thereby violated hisconstitutional right to require thejury to find each element ofthe 

### charged crimes beyond a reasonable doubt. In support ofthis argument, Slane cites State v. Humphries, 181 Wn.2d 708, 336 P.3d 1121 (2014). 

### The State charged Humphries, among othercrimes, with unlawful 

### possession ofafirearm based on prior robbery convictions that rendered him 

### ineligible to possess afirearm. Humphries, 181 Wn.2d at712. Defense counsel wanted tostipulate thatHumphries had a previous conviction for a "serious 

### offense" so thejury would not learn ofthespecific nature oftheprior convictions.

6No. 72001-5-1/7 Humphries, 181 Wn.2d at 712. Although counsel informed the trial court that Humphries did not agree withthe proposed stipulation, the court determined that the decision was tactical and the defendant's consent was not required. The court allowed counsel to stipulate to the prioroffense element ofthe crime on his client's behalf, over his objection. Humphries, 181 Wn.2d at 712. Reversing Humphries' firearm conviction and this court's decision, our 

### Supreme Courtheld that counsel's stipulation to an element of the crime over the defendant's personal objection amounted to an involuntary waiver of his 

### constitutional right to due process. Humphries, 181 Wn.2d at 718. This was so 

### because "[wjhen the partiesstipulate to the facts that establish an element ofthe chargedcrime, thejury need notfind the existence ofthatelement, and the 

### stipulation therefore constitutes a waiver ofthe 'right to ajury trial on that element,' as well as the right to require the State prove that elementbeyond a reasonable doubt." Humphries, 181 Wn.2d at 714 (citation omitted). 

### Slane contends that byallowing counsel to proceedwith a mental health defense after he voiced objections, the courtimpermissibly permitted counsel to 

### stipulate to an element oftheoffense over his explicit objection, as in Humphries. However, Slane's reliance on Humphries is misplaced. As the State correctly 

### points out, there are legally significant differences between Slane's attorneys' arguments to thejury in this case andentry ofa formal stipulation to an element ofthe crime. The primary distinction being that a stipulation relieves the State of its burden ofproofas to the element towhich the parties stipulate. Here, on the other hand, the defense argument had no effect on the State's burden to presentNo. 72001-5-1/8 evidence or its burden of proof. The instructions informed thejury that Slane's plea of not guilty put "in issue every element ofeach crime charged" and that the State bore the "burden of proving each element ofeach crime beyond a reasonable doubt." While Slane's attorneys focused only on challenging the State's claim that Slane acted "knowingly and maliciously" and demonstrating that his mental health condition prevented him from appearing in court, the jury was 

### nevertheless specifically instructed that Slane could only be convicted upon proof 

### beyond a reasonable doubt that he "caused physical damage to theproperty" of the victims and that he "failed to appear before a court" on July 15, 2013. The 

### jury wasalso instructed thatthelawyers' arguments could not beconsidered as "evidence" and were merely intended to assist thejury to "understand the 

### evidence andapply the law." As the court specifically noted in Humphries, unlike
a formal stipulation, "an attorney's concessionduring closing argumentdoes not 

### waive any ofthedefendant's relevant constitutional rights. The State isstill 

### required to bearits burden, present admissible evidence, and convince ajury of every element ofthecrime beyond a reasonable doubt." Humphries, 181 Wn.2d
at717n.4. Ill Slane also contends that his attorneys abandoned him by asserting a 

### mental healthdefense over his objection and thereby violated his constitutional 

### right to counsel. Slane claims that counsel presented evidence that was beneficial to the State's case, and that by conceding his actions, counsel failed toNo. 72001-5-1/9 subject the State's case to meaningful adversarial testing. Therefore, he argues that this is a case where we must presume ineffective assistance. To safeguard the fundamental right to a fair trial, a criminal defendant is entitled to the effective assistance of counsel. See Strickland v. Washington. 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We presume that counsel is effective, and the appellant bears the burden of proving otherwise. Strickland, 466 U.S. at 689. Under Strickland, the benchmark for evaluating a claim of ineffectiveness is whether the attorney's conduct "so undermined the proper functioning of the adversarial process that the trialcannot be relied on as having produced a just result." Strickland. 466 U.S. at 686. Strickland set forth a 

### two-part, performance-and-prejudice test whereby the appellant must show that counsel's representation fell below an objective standard ofreasonableness, and there is a reasonable probability that, but for counsel's deficient performance, the 

### outcome of the proceeding would have been different. Strickland. 466 U.S. at 688, 694. Both deficient performance and prejudice are required before the court may conclude that a conviction "resulted from a breakdown in the adversary 

### process that rendered] the result [ofthe proceeding] unreliable" and in violation of the Sixth Amendment. Strickland. 466 U.S. at 687. Although Strickland's test generally governs, ineffective assistance may 

### be presumed in limited circumstances under United States v. Cronic. 466 U.S. 648, 650, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). In Cronic, the companion

case to Strickland, the Court identified three distinct situations in which such a 

### presumption is appropriate: (1) when the defendant is completely deniedNo. 72001-5-1/10 counsel "at a critical stage of his trial," (2) when counsel "entirely fails to subject the prosecution's case to meaningful adversarial testing," and (3) when, although counsel is available to assist, "the likelihood that any lawyer, even a fully 

### competent one, could provide effectiveassistance is so small that a presumption 

### ofprejudice is appropriatewithout inquiry into the actual conduct ofthe trial." Cronic, 466 U.S. at 659-60. As an initial matter, Slane characterizes his objection to the strategy his 

### lawyers pursued as clear and consistentthroughout the proceedings. But in fact, the record is somewhat ambiguous as to the nature ofSlane's objection and whether he abandoned it. Slane claimed for the first time during opening remarks that he did "not want this defense" as his attorney discussed his mental health status in connection with the malicious mischiefcharges. But he did not 

### raise the issue again afteropening statements or at any otherpoint. He did not seek the appointment ofnew counsel, nor raise any issuewith the court abouta conflictwith his attorneys. When one ofSlane's attorneys expressed concerns about competency the day after opening statements, she said her concerns were based on Slane's inability to engage with counsel, but said she did not believe 

### thathis disengagement stemmed from a disagreement orconflict. Thecourt's colloquy with Slane atthis point included some discussion about the defense 

### strategy. Slane's answers reflected that heunderstood thedefense, but hedid notreiterate anyobjection oropposition. Slanedid notobjectto thetestimony of 

### any ofthedefense witnesses nortothejury instruction on theaffirmative defense of uncontrollable circumstances. And while Slane strenuously voiced his

10No. 72001-5-1/11
dissatisfaction with trial counsel at the conclusion of the case, this appeared to be based on his view that the defense prematurely rested its case. Nevertheless, even ifwe assume that Slane opposed the assertion of a mental health defense with respect to both the malicious mischiefand bail jumping charges and that his objection was not fleeting, his argument hinges on the notion that the client must agree, not only withthe objective, but also with the
means to pursue that objective. This is incorrect. It is a cardinal rule ofattorney-client relations that "a lawyer shall abide by a client's decisions concerning the objectives ofrepresentation and
.. . shall consult with the client as to the means by which they are to be pursued." Rules of 

### Professional Conduct (RPC) 1.2(a). In the criminal context, certain decisions 

### must ultimately rest with the defendant afterconsultation with the lawyer, 

### including what pleatoenter, whethertowaive ajury trial, whethertotestify, and whether to appeal. ABA CriminalJustice Standards for the Defense 

### Function std. 4-5.2 (4th ed. 2015); RPC 1.2(a). "An attorneyundoubtedly has a 

### duty toconsultwith theclient regarding important decisions, including questions ofoverarching defense strategy. Thatobligation, however, does notrequire counsel to obtain the defendant's consent to every tactical decision." Florida v. Nixon. 543 U.S. 175, 187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (internal 

### quotation marks and citation omitted). In general, counsel, notthe client, "'is in charge ofthe choice oftrial tactics and thetheory ofdefense.'" In rePersonal Restraint of Stenson, 142 Wn.2d 710, 734, 16 P.3d 1 (2001) (quoting United States v. Wadsworth. 830 F.2d 1500, 1509 (9th Cir. 1987)). "The adversary

11No. 72001-5-1/12
process could not function effectively ifevery tactical decision required client approval." Taylor v. Illinois. 484 U.S. 400, 418, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988).While the constitutional right to effective assistance of counsel places an outer limit on the attorney's decision-making power, Strickland does not define the SixthAmendment right to counsel interms of the defendant's right to control the defense. Stenson. 142 Wn.2d at 733 (decision to admit guilt in penalty phase 

### of capital trial over the objection of the accused fell within the province of counsel to determine matters of strategy); see also State v. Cross. 156 Wn.2d 580, 605- 

### 06, 132 P.3d 80 (2006) (decision to present evidence about the accused's mental 

### health at sentencing, over his objection, properly rested with defense counsel). 

### And again, only a tactical decision not"to subject the prosecution's case to meaningful adversarial testing" constitutes "adenial ofSixth Amendment rights that makes the adversary process itselfpresumptively unreliable." Cronic. 466
U.S. at 659. 

### Slane pleaded notguilty to the crimes and therefore, the objective ofthe 

### representation was to have thejury find him notguilty. Slane's attorneys mounted a defense consistentwith that objective.4 Slane does not suggest that counsel failed to consult with him about the means to achieve that objective. Nor
4In contrast, in several cases Slane relies on from otherjurisdictions, the attorneys' conductconflicted with the defendant's objective in entering a notguilty plea. For instance, in Cookev. State 977 A.2d 803 (Del. 2009), the pleas available in Delaware were guilty, notguilty, nolo contendere, orguilty butmentally ill. Cooke, 977A.2d at 842. Although Cookechose to plead not guilty, rather than guilty but mentally ill, his attorneys infringed upon his right to enter the plea ofhis choice by asking thejury tofind him guilty but mentally ill. Cooke. 977 A.2d at 842-43: see also State v. Carter. 270 Kan. 426, 440, 14 P.3d 1138 (2000) (by urging jury to convict onfelony murder counttoavoid conviction ofpremeditated murder, "defense counsel was betraying the defendant bydeliberately overriding his plea of notguilty"). 12No. 72001-5-1/13
did the strategic decision ofcounsel not to challenge certain facts fail to subject the State's case to adversarial testing. The United States Supreme Court's decision in Florida v. Nixon is instructive. Nixon was on trial for capital murder. Nixon. 543 U.S. at 180. Given Nixon's confession and "overwhelming evidence" of his guilt, Nixon's attorney determined that the only way to avoid a death sentence was to concede guilt and focus on the penalty phase. Nixon. 543 U.S. at 180, 181. Trialcounsel 

### attempted to explain this strategy to Nixon and secure his consent, but Nixon


### was uncooperative and eventually removed from the courtroom. Nixon, 543 U.S. at 181-82. The FloridaSupreme Court vacated Nixon's conviction and sentence 

### afterfinding trial counselineffective for conceding guilt without the defendant's 

### express consent. Nixon, 543 U.S. at 186-87. Thecourt presumed prejudice under Cronic because itfound that the concession "allowed the prosecution's 

### guilt-phase case to proceed essentially without opposition" and left the 

### prosecution's case unexposed to "meaningful adversarial testing." Nixon, 543
U.S. at 185. 

### The United States Supreme Court disagreed. Acknowledging that criminal defendants must consent to guilty pleas, the Court determined that the concession to murder was not the "functional equivalent" of a guilty plea. Nixon. 543 U.S. at 187-88. "Nixon retained the rights accorded a defendant in a criminal trial. . . . The State was obliged to present during the guiltphase competent, admissible evidence." Nixon. 543 U.S. at 188. Trial counsel did not cede the 

### case; he cross-examined witnesses and attempted to exclude prejudicial

13No. 72001-5-1/14
evidence. Nixon, 543 U.S. at 188. Nixon's express consent to the concession strategy was not required. Nixon. 543 U.S. at 189. Furthermore, the Court held that "ifcounsel's strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter." Nixon. 543 U.S.

at 192.The defense strategy in this case, while unsuccessful, was sound. Slane 

### argues that the defense evidence, such as the testimony about his nonsensical explanation for why he damaged the vehicles, merely corroborated his guilt and benefitted the State. Slane's argument fails to appreciate that the defense evidence also undermined the State's assertion that he possessed the requisite 

### intent and supported the claim ofuncontrollable circumstances. The argument 

### also ignores the strength ofthe evidence indicating that Slane caused the 

### damage in question andfailed to appear in court. Hewas found hiding in the 

### vicinity ofthe damaged cars around thetime ofthe incident. He waswearing clothes matching the description provided by an eyewitness and depicted in surveillance video. He had knives in his possession. The knives were consistent 

### with puncture marks on the tires and there were indications they had recently been used to cut rubber. The State also presented the testimony of a records custodian to establish that Slane had been charged with a felony, had been released, and failed to appear at a required court hearing. While even conceding a client's guilt may be an appropriate trial strategy in some cases, Slane's counsel did not pursue a strategy of conceding guiltthat 

### was inconsistent with his plea of notguilty. It is reasonable to assume that

14No. 72001-5-1/15 acknowledging Slane's conduct lent credibility to the defense argument that Slane's mental health symptoms rendered him unable to form malicious intent or 

### appear in court as required. See Nixon, 543 U.S. at 192 ("[Cjounsel cannot be deemed ineffective for attempting to impress the jurywith his candor and his 

### unwillingness to engage in a useless charade." (internal quotation marks omitted)); see also United States v. Thomas. 417 F.3d 1053, 1056-59 (9th Cir. 

### 2005) (no prejudice where attorney conceded participation in one robbery where defendant was "in effect, caught red-handed" but contested the remaining 

### charges which carried significantly greaterpenalties). In the face ofsignificant evidenceestablishing Slane's conduct, it was reasonablefor counsel tofocus on the mens rea element and affirmative defense rather than challenging facts that

were not readily disputable. 

### In sum, counsels' decision to acknowledge Slane's actions did not amount 

### to an involuntary waiver ofa constitutional right norviolate Slane'sconstitutional 

### rightto due process. And here, where defense counsel pursued a reasoned trial strategy in light oftheevidence available and did not override his choice ofplea, Slane fails to establish a violation of his constitutional right to the effective assistance of counsel. Affirmed.

We concur: 

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