IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON, ] 1 No. 75034-8-1 —^ Respondent, ) G •-••;_. DIVISION ONE v. ) KYLE STODDARD, UNPUBLISHED OPINION Appellant. ) FILED: June 13, 2016 

### Spearman, J. — Kyle Stoddard was convicted ofcustodial assault against three corrections officers. He appeals, arguing that the trial court deprived him of 

### a fair trial by requiring him to wear an electric shock restraint during trial and by 

### placing two prison guards near him in the courtroom. Stoddard also argues that

one of his assault convictions must be overturned because the evidence for that charge was insufficient. Finding no error, we affirm. FACTS Stoddard was an inmate at a corrections center. During a meal, Stoddard 

### violated the center's rules by moving to anothertable, refusing to return to his 

### seat, and putting food in his pockets. Corrections Officer Torey Casey directed Stoddard to leave the dining hall. Stoddard threw his tray on the ground, 

### approached Casey, and told him he would "kick [his] fucking ass." Verbatim Report of Proceedings (VRP) (10/30/14) at 30.No. 75034-8-1/2 Two corrections officers who were outside the dining hall, William Lane and Roland Daniels, heard Casey radio for help. Lane entered the hall to assist 

### while Daniels remained by the doors to block Stoddard from exiting. Daniels observed the incidentthrough the glass ofthe door. 

### Lane approached Stoddard and Casey. Stoddard threatened Lane and 

### approachedhim with his fists clenched. Casey used pepper spray onStoddard. Lane stated that he tried to grab Stoddard but Stoddard evaded him and "charged" toward the door. VRP (10/30/14) at 47. Daniels stated that he saw Stoddard coming toward the door. Daniels realized that he did not have time to lockthe door, so he put his shoulder against 

### itto slow Stoddard's exit. Stoddard forcefully ran into the door and the impact caused Daniels to fall. 

### Casey andLane tried torestrain Stoddard. According to theofficers, 

### Stoddard ignored instructions tostop and continued toswing atthem. Daniels eventually brought Stoddard undercontrol by causing him tofall. Stoddard was stunned or unconscious for a moment, then continued trying to hit Daniels. 

### According toStoddard, after he was peppersprayed, he was scared, 

### panicked, and anxious and onlywanted to getaway. He statedthatbecause of thepepperspray hecould not see well and did notsee Daniels standing outside the door. Stoddard denied throwing punches once he was outside and stated that he was onlytrying to get awayfrom the confrontation. 

### Stoddard was charged with three counts of custodial assault. While 

### awaiting trial, thecourtgranted Stoddard's requestto behoused temporarily atNo. 75034-8-1/3 the Grays Harbor County Jail in order to facilitate attorney-client communication. The court instructed Stoddard to be a "perfect gentleman" and specifically instructed him not to assault any officers. VRP (6/23/14) at 6-7. Stoddard replied "Yes sir." VRP (6/23/14) at 7. While at the countyjail, Stoddard allegedly assaulted a deputy sheriffand 

### broke his jaw. Stoddard also allegedly stated that itwas his goal to hospitalize at least one staffmember from every correctional center inwhich he was incarcerated. 

### In its pretrial brief, the State noted that Stoddard had five prior convictions 

### forassaulting police. The State explained that, due to Stoddard's alleged assault 

### of the Grays Harborofficer, he was "notwelcome" to be housed at the Grays 

### Harborjail or any other nearbyjail fortrial. Clerk's Papers (CP) at 35. The State anticipated that the Department ofCorrections (DOC) would use a "special extraction team" to transport Stoddard to court and fit him with an electric shock harness worn under clothes for trial. The State noted that Stoddard had never 

### "acted out" in the courtrooms at Grays Harbor jail. |a\ Defense counsel did not

move to remove Stoddard's restraints or request a hearing on the issue. 

### At a pretrial hearing, the courtinquired about security measures. The 

### State explained that its understanding was that DOC would restrain Stoddard using an electric shock harness that would be worn under Stoddard's clothes. The trial court confirmed that this device would not be visible to thejury. The 

### court instructed Stoddard that itexpected him to "conduct [himself] appropriately" and that if he did not "we will take appropriate steps to make sure that theNo. 75034-8-1/4
courtroom is secure." VRP (10/27/14) at 8. Stoddard replied "Yes, sir." VRP 10/27/14 at 7-8. Defense counsel did not object or move to remove restraints at trial. On the day ofthe trial, outside the presence ofthejury, the court addressed the parties about security measures. The court stated that ithad learned that morning from a corrections officerthat Stoddard was fitted with an electric shock device under his clothing on the lower part ofone leg. Ifactivated, the device would make it difficult for Stoddard to fully use that leg but would not 

### incapacitate Stoddard. The court stated that it had decided to move counsel table to allow room for two security officers to stand or sit behind Stoddard. The court stated that itmade this decision after considering the nature ofthe charge 

### against Stoddard, the alleged assault at the Grays Harborjail, and the alleged threats to injure other lawenforcementofficers. The court also stated that the risk ofprejudice was low given that, because of the nature of the charges, thejury would necessarily be informed that Stoddard was an inmate in a correctional facility.

### Defense counsel objected that the presence ofsecurity officers was 

### prejudicial. Counsel also objected that the presence ofofficers behind counsel table violated Stoddard's right to confidential communication with his attorney. 

### After inquiring whether the officerswere able to hear communications between Stoddard and his attorney and receiving a negative reply, the court ruled that there was sufficient distance for Stoddard to communicate with his attorney in confidence.No. 75034-8-1/5 Stoddard was convicted as charged. He appeals. DISCUSSION 

### Stoddard firstargues that the trial court violated his right to a fair trial by 

### requiring him to wear an electric shock device and placing security guards near counsel table. The trial court has discretion to determine whether a defendant should be restrained in court. State v. Walker, 185 Wn. App. 790, 799-80, 344 

### P.3d 227, rev. denied, 183Wn.2d 1025, 355 P.3d 1154(2015). In making this decision, the trial court must "balance the need for a secure courtroom withthe 

### defendant'spresumption ofinnocence, abilityto assist counsel, the righttotestify inone's own behalf, and the dignity of the judicialprocess." ig\ at 796 (quoting State v. Finch, 137 Wn.2d 792, 842-45, 975 P.2d 967 (1999)). 

### The court may consider factors such as the seriousness of the present 

### charge, thedefendant's pastrecord, thedefendant's behaviorin court, threats to harm others, pastescape attempts or evidence ofcurrent plans to escape, and the nature ofthe courtroom. State v. Damon, 144 Wn.2d 686, 691-92, 25 P.3d 

### 418(2001) (citing Finch, 137Wn.2d at848). Thetrial courtshould hold a hearing and enterfindings offact beforeallowing the use ofrestraints. Id Prison officials 

### "may bewell positioned to assist thetrial court in deciding matters ofcourtroom 

### security "Walker, 185 Wn. App. at797. But it is an abuse ofdiscretion forthe trial court to impose restraints based solely on a request by a correctional officer. Damon, 144 Wn.2d at 692. 

### Stoddard urges us tofind that the trial court abused itsdiscretion because 

### it imposed restraints based on the ex parte request of a corrections officer.No. 75034-8-1/6 Stoddard asserts that he had a history of exemplary courtroom behavior and there was no basis for the trial court to impose restraints. Stoddard's argument is without merit. In determining what security

measures to impose, the trial court properly weighed a number offactors. The court considered the present charge against Stoddard, which concerned 

### assaulting lawenforcement officers and trying to flee from them. The court also considered separate pending charges for assaulting a lawenforcement officer 

### and reports ofthreats to harm others. The court weighed the risk of prejudice from placing officers near Stoddard and found that the riskwas minimal. The trial

court did not abuse its discretion. 

### Stoddard also urges us to find that the trial court erred infailing to conduct 

### a hearing on the use of restraints. We reject this argument. In response to the State's pretrial briefdiscussing restraints, Stoddard raised noobjection and raised no motion to remove restraints. The court specifically inquired about 

### security measures at a pre-trial hearing. Stoddard made no argument against the

use of restraints.1 

### While the trial court must generally hold a hearing on the use of restraints, itneed not do so sua sponte where, as here, there is no dispute that the restraints are not visible to thejury and the defendant does not object. Moreover,

1In arguing that weshould reviewthisclaim raised forthefirsttime on appeal,Stoddard asserts that his attorney was ineffective forfailing to raise the issue below. Theclaim fails because Stoddard cannot show that his attorney's performance was deficient or that even ifit was, there is a reasonable probability that but for the claimed error, the result of the trial would have been different. (See State v. Thomas. 109 Wn.2d 222, 225-56, 743 P.2d 816 (1987), applying thetwo prong testin Strickland v. Washington. 466U.S. 668, 687, 104 S.Ct2052, 80 LEd.2d 674 (1984)).No. 75034-8-1/7 despite Stoddard's failure to object, the trial court explained on the record the basis for its reasoning and showed that ithad considered the proper factors in determining what security measures to impose. There was no error. Finally, Stoddard argues that the trial court did not adequately consider the prejudice created by the proximity ofthe corrections officers and by the psychological impact ofthe electrical shock device. He argues that the presence ofthe officers near counsel table conveyed the message to thejury that Stoddard


### was dangerous. He also argues thatfear of being shocked likely affected Stoddard's demeanor as he testified and thus harmed his credibility with thejury. We reject both arguments. First, the trial court considered the risk ofprejudice from the proximity of 

### the officers to Stoddard. The court properly balanced its security concerns with 

### the potential for speculation by jurors about why the officers were seated near Stoddard. There was no abuse of discretion. Second, Stoddard cites to nothing in 

### the record supporting his claim that his demeanor during his testimony was 

### affected by the electric shock device or that the jurors considered his testimony less credible because ofthe claimed effect ithad on him. Relying on Riqqins v. Nevada. 504 U.S. 127, 112 S.Ct 1810, 118 L.Ed.2d 479 (1992), Stoddard argues 

### that we should simply presume prejudice, but his reliance is misplaced. In that case, Riggins, the defendantwas convicted and sentenced to 

### death following a trial during which he was forcibly medicated with antipsychotic drugs. He appealed the trial court's refusal to allowhim to attend trial in an unmedicated condition, contending that itdenied him a full and fairtrial,jd. atNo. 75034-8-1/8 133. In reversing Riggins' conviction, the court recognized the futility of attempting to "prove or disprove actual prejudice from the record before us" and that "the precise consequences offorcing antipsychotic medication upon Riggins cannot be shown from a trial transcript." Id. at 137. Nonetheless, Riggins was entitled to relief because his claim was supported by testimony in the record of doctors who had examined him which established "a strong possibility that [his] defense was impaired due to the administration of Mellaril." Id. 

### Stoddard argues that like Riggins, his claim should not be denied simply because it is difficult to discern actual prejudice from a cold record. But unlike 

### Riggins, Stoddard cites to nothing in the record to support his claim. Instead, he asks us to speculate about the possible effect the electric shock device may have had on his testimony. Accordingly, we rejectthe argument. 

### Stoddard next argues that his conviction forassaulting Daniels rests on insufficient evidence and must be reversed. In reviewing for sufficiency ofthe 

### evidence, the question is whether, "after viewing the evidence inthe lightmost 

### favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas, 119Wn.2d 192, 201, 829 P.2d 1068 (1992) 

### (citing State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980)). Stoddard argues that there was insufficient evidence for the jury to find that he intended to assault Daniels. At trial, Stoddard testified that he did not see 

### Daniels standing outside the door, did not intend to hit Daniels with the door, and did not swing at Daniels or attempt to hit him with his fists. But the corrections officers testified that, after flying into a rage and making threats to corrections

8No. 75034-8-1/9 

### officers, Stoddard ran straightto the door where Daniels was visible and charged intothe door withenough force to knock Daniels down. They testified that, once outside, Stoddard continued swinging at them. Daniels testified that as he tried to restrain Stoddard, Stoddard continued trying to hit him. Thejury was also shown

a surveillance video that captured much ofthe incident. We conclude that the evidence was sufficientfor a jury to find that Stoddard intended to assault the corrections officerwho stood in his way and tried to restrain him. Affirm.

WE CONCUR: 

## V)l/rfijy-c^SJ >



## Y 

# "5s=teg<?